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04-28-22-8.5 - Resolution - 04/28/2022RESOLUTION NO. 04-28-22-8.5 A RESOLUTION OF THE CITY OF COLLEGE STATION, TEXAS, AUTHORIZING AND APPROVING A CONTRACT FOR LOAN GUARANTEE ASSISTANCE UNDER SECTION 108 OF THE HOUSING AND COMMUNITY DEVELOPMENT ACT OF 1974 AS AMENDED, THE CITY’S ISSUANCE OF A NOTE PURSUANT TO SAID SECTION 108 CONTRACT, A SECTION 108 LOAN AGREEMENT BETWEEN L.U.L.A.C. OAK HILL, INC. AND THE CITY, AND AUTHORIZING THE CITY MANAGER TO EXECUTE AND DELIVER THOSE AND SUCH OTHER AGREEMENTS AS MAY BE NECESSARY TO COMPLETE T HE CONTEMPLATED SECTION 108 LOAN FINANCING. WHEREAS, the City of College Station, Texas, has an established Community Development Program under Chapter 373 of the Texas Local Government Code that (1) identifies areas of the City with concentrations of low- and moderate- income persons; (2) establishes areas in which program activities are proposed; (3) provides a plan under which citizens may publicly comment on activities; and (4) requires public hearings on program activities; and WHEREAS, the City of College Station has provided adequate information for public comment as required by the Citizen Participation Plan; and WHEREAS, on April 22, 2021, the City approved an application for Section 108 Loan funds to finance the rehabilitation Oak Hill Apartments, owned by L.U.L.A.C. Oak Hill, Inc. (the “HUD Section 108 Loan”); and WHEREAS, on August 17, 2021 the City’s Section 108 Loan Application was approved by HUD now; and WHEREAS, the City Council desires to authorize the execution and delivery of the Contract for Loan Guarantee Assistance Under Section 108 of the Housing and Community Development Act of 1974, as Amended, 42 U.S.C. §5308, the contemplated promissory note B- 20-MC-48-0007 [LULAC Oak Hill Apartments Project], the Loan Agreement with L.U.L.A.C. Oak Hill, Inc., and any and all other documents or agreements necessary or desirable to complete the HUD Section 108 Loan financing; now therefore, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF COLLEGE STATION, TEXAS: PART 1: That the City Council hereby authorizes and approves the Contract for Loan Guarantee Assistance under Section 108 of the Housing and Community Development Act of 1974, as amended, 42 U.S.C. §5308 in substantially the form attached as Exhibit A (the “Section 108 Contract”). The City Manager is authorized to execute and deliver the Section 108 Contract, with such changes, insertions, deletions, or modifications as he determines necessary to obtain the guaranteed financing of the HUD Section 108 Loan. Resolution No. 04-28-22-8.5 Page 2 of 164 PART 2: That the City Council hereby authorizes and approves the issuance by the City of a note in substantially the form attached as Exhibit B (the “Note”), with this authorization being conditioned on the interest rate for the note being no more than the maximum net effective interest rate permitted by law to be paid on obligations issued or assumed by the City in exercise of its borrowing powers, as prescribed by Texas Law, including Texas Government Code, Chapter 1204. The City Manager is authorized to execute and deliver the Note, with such changes, insertions, deletions, or modifications as he determines necessary to obtain the guaranteed financing of the HUD Section 108 Loan. PART 3: That the City Council hereby authorizes and approves the Section 108 Loan Agreement between L.U.L.A.C Oak Hill, Inc. and the City of College Station in the amount of $2,808,000 in substantially the form attached as Exhibit C (the “L.U.L.A.C. Loan Agreement”). The City Manager is authorized to execute and deliver the L.U.L.A.C. Loan Agreement with such changes, insertions, deletions, or modifications as he determines necessary. PART 4: That the City Council hereby authorizes and approves the City Manager to pay from the proceeds of the HUD Section 108 Loan or otherwise all expenses related to the issuance and delivery of the Note, the Contract, any conversion of the Note, and the related agreements, expenses of approval by the Texas Attorney General’s Office, as well as the City’s share of any expenses of any public offering. PART 5: That the City Council authorizes and approves the City Manager to execute and deliver documents not mentioned in this resolution if such documents are necessary to complete the issuance and delivery of the Note, the Section 108 Contract, the execution and delivery of the Section 108 Contract, to obtain approval from the Texas Attorney General’s Office, to execute and delivery of the L.U.L.A.C. Loan Agreement, and to complete the documents specifically described in this resolution. PART 6: That this Resolution shall take effect immediately from and after its passage. ADOPTED this 28th day of April, 2022. ATTEST: APPROVED: _____________________________ __________________________________ City Secretary Mayor APPROVED: _____________________________ City Attorney U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT CONTRACT FOR LOAN GUARANTEE ASSISTANCE UNDER SECTION 108 OF THE HOUSING AND COMMUNITY DEVELOPMENT ACT OF 1974, AS AMENDED, 42 U.S.C. §5308 Date of Contract_______________ This Contract for Loan Guarantee Assistance ("Contract") is entered into between College Station, Texas, as Borrower (the "Borrower"), and the Secretary of Housing and Urban Development ("Secretary"), as guarantor for the Guarantee made pursuant to section 108 ("Section 108") of title I of the Housing and Community Development Act of 1974, as amended (the "Act") and 24 CFR Part 570, Subpart M, of the promissory note executed contemporaneously herewith and numbered B-20-MC-48-0007 [LULAC Oak Hill Apartments Project], in the Maximum Commitment Amount of $2,808,000, and any amended note or note issued in substitution for such note and having the same note number (the "Note"). This is the first Contract under the Funding Approval ("Commitment") of the same number, which was approved by the Secretary on August 17, 2021. The funds paid or credited to the account of the Borrower pursuant to the Note are referred to herein as the "Guaranteed Loan Funds." The Note (including the Fiscal Agency Agreement and the Trust Agreement as defined in Section I.A. of the Note and incorporated therein) is hereby incorporated into the Contract. Terms used in the Contract with initial capital letters and not otherwise defined in the text hereof shall have the respective meanings given thereto in the Note. The Fiscal Agency Agreement and the Trust Agreement are sometimes collectively referred to herein as the "Fiscal Agency/Trust Agreements," and the Fiscal Agent and the Trustee respectively are sometimes collectively referred to as the "Fiscal Agent/Trustee." PART I A. The Note: Advances and Records . The Note provides that Advances and Conversion Date Advances shall be made thereunder upon the written request of the Borrower and the approval of the Secretary, pursuant to this Contract and the Fiscal Agency Agreement. The Commitment Schedule attached to the Note represents the principal repayment schedule for the Maximum Commitment Amount of the Note. At all times, the total amount of all Advances and Conversion Date Advances under the Note for all Principal Due Dates shall EXHIBIT AResolution No. 04-28-22-8.5 Page 3 of 164 not exceed the Maximum Commitment Amount of the Note. Prior to the Conversion Date (as defined in the Note, Section I.A.), the total amount of Advances made by the Holder for each Principal Due Date under the Note shall not exceed the applicable Commitment Amount for such Principal Due Date set forth in the Commitment Schedule of the Note. Prior to the Conversion Date, the Borrower agrees that the Fiscal Agent pursuant to the Fiscal Agency Agreement shall record the date and amount of each payment and Advance under the Note and shall maintain the books and records of all Advances and Conversion Date Advances for each Principal Due Date, interest rates on Advances, payments, and Principal Amounts outstanding for each Principal Due Date. On and after the Conversion Date, the Borrower agrees that the Trustee pursuant to the Trust Agreement will maintain the books and records of all payments on the Note and all Principal Amounts and interest rates on such Principal Amounts (each as to be set forth on Schedule P&I to the Note). No advances of any kind may be made on the Note after its Conversion Date. B. Borrower’s Requests for Advances . All requests for Advances or Conversion Date Advances by the Borrower under the Note shall: be in writing; specify the amount of the Advance requested; identify the Note by Borrower, number and Maximum Commitment Amount; be addressed to the Secretary at the address for notices specified in paragraph 12(f) of this Contract; be signed by an authorized official of the Borrower; and otherwise be in the form prescribed by the Secretary. Advances and Conversion Date Advances shall be requested and will only be approved and made in increments of not less than $1,000 for any Principal Due Date. A request for an initial Advance under a Note, or a request for a Conversion Date Advance, shall be received by the Secretary at least ten Business Days prior to the Borrower’s proposed Funding Date or Conversion Date, as applicable. All other requests for Advances shall be received by the Secretary not less than five Business Days prior to the proposed Funding Date. The Borrower may not deliver a Note or a request for an Advance or Conversion Date Advance to the Secretary more than two calendar months prior to the Borrower’s proposed Funding Date. At least two Business Days prior to the proposed Funding Date or Conversion Date if the Borrower’s request was timely received, or the next available Funding Date for which the request was timely received, the Secretary shall, except as otherwise provided in paragraph 11(c) or 12 hereof, deliver a corresponding Resolution No. 04-28-22-8.5 Page 4 of 164 Authorization Order or Advance Order (as applicable) to the Fiscal Agent in accordance with Section 2.03 or 2.04 of the Fiscal Agency Agreement for the applicable Funding Date or Conversion Date. If the Borrower requests an Advance or Conversion Date Advance of less than the outstanding Maximum Commitment Amount under the Note, the Borrower may also specify in its written request the amount of the Advance or Conversion Date Advance to be allocated to each Commitment Amount or Principal Amount per Principal Due Date under the Note. If the Borrower does not specify how the Advance or Conversion Date Advance should be allocated among Commitment Amounts/Principal Due Dates, the Borrower hereby authorizes the Secretary to direct the Fiscal Agent to allocate the Advance to the respective Commitment Amounts or Principal Amounts in order of the earliest Principal Due Date(s). C. Conversion; Public Offering . On the Conversion Date (if any), trust certificates backed by the Note (and similar notes issued by other Section 108 borrowers) will be purchased for a purchase price of the full principal amount thereof by underwriters selected by the Secretary (the "Underwriters") pursuant to an Underwriting Agreement between the Underwriters and the Secretary, at a closing on such Conversion Date as determined by the Secretary and the Underwriters. The Borrower agrees that the interest rate at which the trust certificate of a specified maturity is sold to the Underwriters shall govern the interest rate inserted on the Conversion Date in Schedule P&I of the Note for the Principal Amount of corresponding maturity. D. Guarantee Fee. The Borrower shall pay to the Secretary a fee equal to 2.15% of each Advance to offset the credit subsidy cost of the guaranteed loan. This fee which was announced on August 26, 2020, 85 Fed. Reg. 52479, for Section 108 loan guarantee disbursements under loan guarantee commitments awarded in FY 2021 is due to the Secretary no later than the time of the disbursement of each Advance to the Borrower. The fee is payable from allocations or grants which have been made to Borrower under Section 106 of the Act (including program income derived therefrom) or from other sources, but is only payable from Guaranteed Loan Funds if the fee is deducted from the Advance. E. Consents. By execution of this Contract, the Borrower ratifies and consents to the Secretary's selection of the Underwriters and authorizes the Secretary to negotiate with the Underwriters the terms of the Underwriting Agreement and of the public offering of interests in the trust Resolution No. 04-28-22-8.5 Page 5 of 164 certificates to investors (including the applicable interest rates). In addition, by execution hereof the Borrower ratifies and consents to the Secretary's selection of the Fiscal Agent/Trustee and agrees to the respective terms of the Fiscal Agency/Trust Agreements. If Advances have been made in the Maximum Commitment Amount of the Note not less than ten Business Days prior to the proposed Conversion Date, or if the Borrower requests a Conversion Date Advance, the Borrower authorizes the Secretary to deliver Schedule P&I to the Note completed in accordance herewith to the Fiscal Agent/Trustee on the Conversion Date in accordance with the Fiscal Agency/Trust Agreements, concurrent with delivery of the Secretary's Guarantee of the trust certificates at the closing on the Conversion Date, and thereafter the Note shall be enforceable in accordance with its terms including Schedule P&I. In addition, the Secretary reserves the right to notify the Borrower not less than one calendar month in advance of a specified Conversion Date that the Note will be sold to the Underwriters on such date, if the Secretary in his sole discretion determines that market conditions or program needs require the participation in the proposed public offering of all or substantially all Borrowers with outstanding Advances. [Rest of Page Intentionally Left Blank] Resolution No. 04-28-22-8.5 Page 6 of 164 PART II 1. Receipt, Deposit and Use of Guaranteed Loan Funds . (a) Except for funds deducted on the Conversion Date pursuant to paragraph 4(b) and fees and charges deducted by the Fiscal Agent/Trustee pursuant to paragraph 4(a), the Guaranteed Loan Funds shall be electronically transferred in accordance with the Borrower's instructions for deposit in a separate, identifiable account (the "Guaranteed Loan Funds Account") with a financial institution whose deposits or accounts are Federally insured. The Guaranteed Loan Funds Account shall be established and designated as prescribed in the attached form document entitled "Letter Agreement for Section 108 Loan Guarantee Program Deposit Account" (Attachment 1) and shall be continuously maintained for the Guaranteed Loan Funds. Such Letter Agreement must be executed when the Guaranteed Loan Funds Account is established, and an original of this Letter Agreement, signed by the Borrower and the financial institution, shall be submitted by the Borrower to the Secretary with this signed Contract. The Borrower shall make withdrawals from said account only for payment of the costs of approved Section 108 activities, for transfer to the Loan Repayment Account or for the temporary investment of funds pursuant to this paragraph 1(a). Such temporary investment of funds into the Guaranteed Loan Funds Investment Account shall be required within three Business Days after the balance of deposited funds exceeds the amount of the Federal deposit insurance on the Guaranteed Loan Funds Account. At that time, any balance of funds in the Guaranteed Loan Funds Account exceeding such insurance coverage shall be fully (100%) and continuously invested in Government Obligations, as defined in paragraph 10 hereof, held in the Guaranteed Loan Funds Investment Account. All temporary investments, whether or not required as above, shall be limited to Government Obligations having maturities that are consistent with the cash requirements of the approved activities. In no event shall the investments mature on or after March 31, 2024 or have maturities which exceed one year. All such investments shall be held in trust for the benefit of the Secretary by the above financial institution in an account (the "Guaranteed Loan Funds Investment Account") established and designated as Resolution No. 04-28-22-8.5 Page 7 of 164 prescribed in the attached form document entitled "Letter Agreement for Section 108 Loan Guarantee Program Investment Account" (Attachment 2), which account shall be maintained for all Government Obligations purchased with funds from the Guaranteed Loan Funds Account. The Guaranteed Loan Funds Investment Account need only be established if and when the Borrower is required to invest, or otherwise invests, the Guaranteed Loan Funds in Government Obligations. Such Letter Agreement must be executed when the Guaranteed Loan Funds Investment Account is established and an original of this Letter Agreement, signed by the Borrower and the financial institution, shall be submitted to the Secretary within thirty days of its execution. All proceeds and income derived from such investments shall be returned to the Guaranteed Loan Funds Account. All funds in the Guaranteed Loan Funds Account or the Guaranteed Loan Funds Investment Account must be withdrawn and disbursed by the Borrower for approved activities by March 31, 2024. Any funds remaining in either Account after this date shall be immediately transferred to the Loan Repayment Account established pursuant to paragraph 6 of this Contract. (b) The Borrower shall by the fifteenth day of each month provide the Secretary with an electronic copy of a statement showing the balance of funds in the Guaranteed Loan Funds Account and the withdrawals from such account during the preceding calendar month, and an electronic copy of a statement identifying the obligations and their assignments in the Guaranteed Loan Funds Investment Account. Borrower shall e-mail the electronic copies to 108reports@hud.gov. (c) Upon the Secretary giving notice that the Borrower is in Default under this Contract or the Note, all right, title, and interest of the Borrower in and to the Guaranteed Loan Funds and Guaranteed Loan Funds Investment Accounts shall immediately vest in the Secretary for use in making payment on the Note, purchase of Government Obligations in accordance with paragraph 10, or payment of any other obligations of the Borrower under this Contract or the Fiscal Agency/Trust Agreements. 2. Payments Due on Note; Final Payment and Discharge . The Borrower shall pay to the Fiscal Agent/Trustee, as collection agent for the Note, all amounts due pursuant to the terms of the Note. In accordance with the Note and the Resolution No. 04-28-22-8.5 Page 8 of 164 Fiscal Agency/Trust Agreements, payment shall be made by 3:00 P.M. (New York City time) on the seventh Business Day (the "Note Payment Date") preceding the relevant Interest Due Date or Principal Due Date (each as defined in the Note). If any Note Payment Date falls on a day that is not a Business Day, then the required payment shall be made on the next Business Day. Payment may be made by check or wire transfer. Upon final payment of all amounts due to Holders under the Note, including any payment made by the Secretary pursuant to the Guarantee, the Fiscal Agent/Trustee is required by the Fiscal Agency/Trust Agreements to return the Note to the Secretary. Upon final payment to the Secretary of any amounts due as a result of Guarantee Payments or otherwise due under this Contract, the Secretary will cancel and return the Note to the Borrower in discharge of the Borrower’s obligations under the Note. 3. Selection of New Fiscal Agent or Trustee . The Secretary shall select a new Fiscal Agent or Trustee if the Fiscal Agent or Trustee resigns or is removed by the Secretary. The Borrower hereby consents in advance to any such selection and to any changes in the Fiscal Agency/Trust Agreements agreed to by any Fiscal Agent or Trustee and the Secretary, subject to paragraph 4(e) of this Contract. 4. Payments Due Fiscal Agent or Trustee; Documents to the Secretary. (a) The Borrower agrees to pay the fees of the Fiscal Agent as required by Exhibit G to the Fiscal Agency Agreement, and any additional amounts that may be due pursuant to Section 6.01 of the Fiscal Agency Agreement. If not paid by the Borrower by any other means prior thereto, the Borrower agrees that any such fees or additional amounts that have been incurred prior to an Advance or a Conversion Date Advance may be deducted by the Fiscal Agent/Trustee from the proceeds of the Advance or Conversion Date Advance, as applicable. (b) The Borrower agrees to pay the Borrower’s share, as determined by the Secretary, of the customary and usual issuance, underwriting, and other costs related to the public offering and future administration of the Note and the trust certificates, as approved by the Secretary, including the cost of reimbursement and/or compensation of Resolution No. 04-28-22-8.5 Page 9 of 164 the Trustee pursuant to the Trust Agreement, including Sections 3.11 and 7.01 thereof. In connection with the public offering on the Conversion Date, such payment shall either be made by wire transfer to the Trustee on the day prior to the Conversion Date or shall be deducted from the Guaranteed Loan Funds on the Conversion Date. (c) The Borrower shall submit to the Secretary not later than ten Business Days prior to the Funding Date for the initial Advance hereunder, or if not submitted earlier, prior to any Conversion Date or Public Offering Date applicable to the Note, this executed Contract, the executed Note, a request for an Advance or a Conversion Date Advance (as applicable) in proper form, and an opinion acceptable to the Secretary from the Borrower's counsel to the effect that: (i) the governing body of the Borrower has authorized by resolution or ordinance, in accordance with applicable State and local law, the issuance of the Note and the execution of this Contract; (ii) the Note and this Contract are valid, binding, and enforceable obligations of the Borrower; (iii) the pledge of funds pursuant to 24 CFR 570.705(b)(2) and paragraph 5(a) of this Contract is valid and binding; and (iv) there is no outstanding litigation that will affect the validity of the Note or this Contract. In addition, the Borrower shall submit any other additional documents or opinions specifically required by this Contract (e.g., paragraph 5(c), or paragraph 15, et seq.), at the time required thereby. (d) The Borrower agrees to reimburse the Underwriters upon demand by the Secretary for the Borrower’s share, as determined by the Secretary, of all reasonable out-of-pocket expenses (including reasonable fees and disbursements of counsel) incurred in connection with a proposed public offering, if the Underwriters incur such additional costs for the public offering because of any refusal, inability, or failure on the part of the Borrower timely to submit in acceptable form any document required by this Contract (including paragraph 4(c)), or because of any withdrawal by the Borrower from the public offering, after the Borrower has submitted a request for a Conversion Date Advance hereunder. By execution and delivery of this Contract to the Secretary, the Borrower hereby expressly authorizes the Secretary to pay amounts due under this paragraph from funds pledged under paragraph 5(a) of this Contract. (e) The undertakings in paragraphs 3 and 4 of this Contract are expressly subject to the requirement that the Fiscal Resolution No. 04-28-22-8.5 Page 10 of 164 Agency/Trust Agreements shall in no event require payment of fees or charges, reimbursement of expenses, or any indemnification by the Borrower from any source other than funds pledged pursuant to paragraphs 5 or 15 et seq. of this Contract. 5. Security. The Borrower hereby pledges as security for repayment of the Note, and such other charges as may be authorized in this Contract, the following: (a) All allocations or grants which have been made or for which the Borrower may become eligible under Section 106 of the Act, as well as any grants which are or may become available to the Borrower pursuant to Section 108(q). (b) Program income, as defined at 24 CFR 570.500(a)(or any successor regulation), directly generated from the use of the Guaranteed Loan Funds. (c) Other security as described in paragraph 15, et seq. (d) All proceeds (including insurance and condemnation proceeds) from any of the foregoing. (e) All funds or investments in the accounts established pursuant to paragraphs 1 and 6 of this Contract. 6. Loan Repayment Account. (a) All amounts pledged pursuant to paragraphs 5(b), 5(c), and 5(d) of this Contract shall be deposited immediately on receipt in a separate identifiable account (the "Loan Repayment Account") with a financial institution whose deposits or accounts are Federally insured. The Loan Repayment Account shall be established and designated as prescribed in the attached form document entitled "Letter Agreement for Section 108 Loan Guarantee Program Deposit Account" (Attachment l) and shall be maintained for such pledged funds. The Loan Repayment Account need only be established if and when the Borrower receives amounts pledged pursuant to paragraph 5(b), 5(c) or 5(d). Such Letter Agreement must be executed when the Loan Repayment Account is established and an original of this Letter Agreement, signed by the Borrower and the financial institution, shall be submitted by the Borrower to the Secretary within thirty days of its execution. Borrower shall make withdrawals from said account only for the Resolution No. 04-28-22-8.5 Page 11 of 164 purpose of paying interest and principal due on the Note (including the purchase of Government Obligations in accordance with paragraph 10 hereof), for payment of any other obligation of the Borrower under this Contract or the Fiscal Agency/Trust Agreements, or for the temporary investment of funds pursuant to this paragraph, until final payment and discharge of the indebtedness evidenced by the Note, unless otherwise expressly authorized by the Secretary in writing. Such temporary investment of funds shall be required within three Business Days after the balance of deposited funds exceeds the amount of the Federal deposit insurance on the Loan Repayment Account. At that time, the balance of funds in the Loan Repayment Account exceeding such insurance coverage shall be fully (100%) and continuously invested in Government Obligations, as defined in paragraph 10 hereof. All temporary investments, whether or not required as above, shall be limited to Government Obligations having maturities that are consistent with cash requirements for payment of principal and interest as required under the Note. In no event shall the maturities of such investments exceed one year. All such investments shall be held in trust for the benefit of the Secretary by the above financial institution in an account (the "Loan Repayment Investment Account") established and designated as prescribed in the attached form document entitled "Letter Agreement for Section 108 Loan Guarantee Program Investment Account" (Attachment 2), which account shall be maintained for all Government Obligations purchased with funds from the Loan Repayment Account. Such Letter Agreement must be executed when the Loan Repayment Investment Account is established, and an original of this Letter Agreement, signed by the Borrower and the financial institution, shall be submitted to the Secretary within thirty days of its execution. All proceeds and income derived from such investments shall be returned to the Loan Repayment Account. (b) Borrower shall by the fifteenth day of each month, provide the Secretary with an electronic copy of a statement showing the balance of funds in the Loan Repayment Account and the deposits and withdrawals of all funds in such account during the preceding calendar month and an electronic copy of a statement identifying the obligations and their assignments in the Loan Repayment Investment Account. Borrower shall email the electronic copies to 108reports@hud.gov. Resolution No. 04-28-22-8.5 Page 12 of 164 (c) Upon the Secretary giving notice that the Borrower is in Default under this Contract or the Note, all right, title, and interest of the Borrower in and to the Loan Repayment and Loan Repayment Investment Accounts shall immediately vest in the Secretary for use in making payment on the Note, purchase of Government Obligations in accordance with paragraph 10, or payment of any other obligation of the Borrower under this Contract or the Fiscal Agency/Trust Agreements. 7. Use of CDBG, EDI or BEDI Funds for Repayment . Any funds available to the Borrower under Section 106 of the Act (including program income derived therefrom) are authorized to be used by the Borrower for payments due on the Note, Optional Redemption (as defined in the Note), payment of any other obligation of the Borrower under this Contract or the Fiscal Agency/Trust Agreements, or the purchase of Government Obligations in accordance with paragraph 10. Any funds specifically available to the Borrower for such payments or as a debt service reserve under an EDI or BEDI Grant Agreement pursuant to Section 108(q) of the Act which supports the eligible project(s) and activities financed by the Note may also be used therefor; any other use of Section 108(q) funds for such purposes shall require the prior written approval of the Secretary. Unless otherwise specifically provided herein or unless otherwise expressly authorized by the Secretary in writing, the Borrower shall substantially disburse funds available in the Loan Repayment or the Loan Repayment Investment Accounts before funds from grants under Section 106 of the Act are withdrawn from the U.S. Treasury for such purposes. 8. Secretary’s Right to Restrict Use of CDBG Funds to Repayment . Upon a determination by the Secretary that payments required by paragraph 2 and/or paragraph 4 of this Contract are unlikely to be made as specified, the Secretary may give the Borrower notice that the availability to the Borrower of funds pledged under paragraph 5(a) of this Contract for purposes other than satisfaction of the pledge is being restricted. This restriction shall be in an amount estimated by the Secretary to be sufficient to ensure that the payments referred to in paragraph 2 and/or paragraph 4 hereof are made when due. This restriction may be given effect by conditioning the restricted amounts to prohibit disbursement for purposes other than satisfaction of the pledge at the time such restricted funds are approved as grants, by limiting the Borrower's ability to Resolution No. 04-28-22-8.5 Page 13 of 164 draw down or expend the restricted funds for other purposes, and by disapproving payment requests submitted with respect to such grants for purposes other than satisfaction of the pledge. 9. Secretary’s Right to Use Pledged Funds for Repayment . The Secretary may use funds pledged under paragraph 5(a) of this Contract or funds restricted under grants pursuant to paragraph 8 of this Contract to make any payment required of the Borrower under paragraph 2 and/or paragraph 4, if such payment has not been timely made by the Borrower. 10. Defeasance. For purposes of this Contract, after the Conversion Date the Note shall be deemed to have been paid (defeased) if there shall have been deposited with the Trustee either moneys or Government Obligations (as defined below), which in the sole determination of the Secretary, mature and bear interest at times and in amounts sufficient, together with any other moneys on deposit with the Trustee for such purpose, to pay when due the principal and interest to become due on the Note. The Aggregate Principal Amount of the Note or any unpaid Principal Amount may be so defeased, in whole or in part, as of any Interest Due Date, or any other Business Day acceptable to both HUD and the Borrower. In accordance with the Note and the Trust Agreement, the Borrower shall give timely notice and written instructions to the Secretary and the Trustee concerning any principal amounts proposed to be defeased, including any Optional Redemptions proposed, which instructions shall be approved by the Secretary. If the unpaid Aggregate Principal Amount of the Note guaranteed pursuant to this Contract shall be defeased and deemed to have been paid in full, then the Borrower shall be released from all agreements, covenants, and further obligations under the Note. "Government Obligation" means a direct obligation of, or any obligation for which the full and timely payment of principal and interest is guaranteed by, the United States of America, including but not limited to, United States Treasury Certificates of Indebtedness, Notes and Bonds - State and Local Government Series or certificates of ownership of the principal of or interest on direct obligations of, or obligations unconditionally guaranteed by, the United States of America, which obligations are held in trust by a commercial bank which is a member of the Federal Reserve System and has capital and surplus (exclusive of undivided profits) in excess of $100,000,000. 11. Default. (a) A Default under the Note and this Contract Resolution No. 04-28-22-8.5 Page 14 of 164 shall occur upon failure by the Borrower to: (i) pay when due an installment of principal or interest on the Note; or (ii) punctually and properly perform, observe, and comply with any covenant, agreement, or condition contained in: (A) this Contract, (B) any security agreement, deed of trust, mortgage, assignment, guarantee, or other contract securing payment of indebtedness evidenced by the Note, or (C) any future amendments, modifications, restatements, renewals, or extensions of any such documents. (b) The Borrower waives notice of Default and opportunity for hearing with respect to a Default under paragraph 11(a). (c) In addition to Defaults under paragraph 11(a), the Secretary may declare the Note in Default if the Secretary makes a final decision in accordance with the provisions of section 111 of the Act and 24 CFR 570.913 (or any successor provisions), including requirements for reasonable notice and opportunity for hearing, that the Borrower has failed to comply substantially with title I of the Act. Notwithstanding any other provision, following the giving of such reasonable notice, the Secretary may, in the Secretary’s sole discretion pending the Secretary’s final decision, withhold the guarantee of any or all obligations not yet guaranteed on behalf of the Borrower under outstanding commitments, suspend approval of any further Advances or Conversion Date Advances under the Note, and/or direct the Borrower's financial institution to: refuse to honor any instruments drawn upon, or withdrawals from, the Guaranteed Loan Funds Account or the Loan Repayment Account initiated by the Borrower, and/or refuse to release obligations and assignments by the Borrower from the Guaranteed Loan Funds Investment Account or the Loan Repayment Investment Account. 12. Remedial Actions. Upon a Default or declaration of Default under this Contract, the Secretary may, in the Secretary’s sole discretion, take any or all of the following remedial actions: (a) With any funds or security pledged under this Contract, the Secretary may: (i) continue to make payments due on the Note, (ii) make a prepayment under Section I.D. of the Note or make an acceleration payment with respect to the principal amount of the Note subject to Optional Redemption as provided Resolution No. 04-28-22-8.5 Page 15 of 164 in Section III of the Note, (iii) purchase Government Obligations in accordance with paragraph 10 of this Contract, (iv) pay any interest due for late payment as provided in the Note, this Contract, or the Fiscal Agency/Trust Agreements, (v) pay any other obligation of the Borrower under this Contract or the Fiscal Agency/Trust Agreements, and/or (vi) pay any reasonable expenses incurred by the Secretary or the Fiscal Agent/Trustee as result of the Borrower's Default. (b) The Secretary may withhold the guarantee of any or all obligations not yet guaranteed or the disbursement of any or all grants not yet disbursed in full under outstanding guarantee commitments or grant approvals for the Borrower under Sections 108 and/or 106 of the Act. (c) The Secretary may withhold approval of any or all further Advances or Conversion Date Advances under the Note (if applicable); direct the Borrower's financial institution to refuse to: honor any instruments drawn upon, or withdrawals from, the Guaranteed Loan Funds Account or the Loan Repayment Account by the Borrower, and/or to release obligations and assignments by the Borrower from the Guaranteed Loan Funds Investment Account or the Loan Repayment Investment Account; and/or direct the Borrower and/or the Borrower’s financial institution to transfer remaining balances from the Guaranteed Loan Funds Account to the Loan Repayment Account. (d) Until the Conversion Date, or with respect to amounts subject to Optional Redemption, the Secretary may accelerate the Note. (e) The Secretary may exercise any other appropriate remedies or sanctions available by law or regulation applicable to the assistance provided under this Contract, or may institute any other action available under law to recover Guaranteed Loan Funds or to reimburse the Secretary for any payment under the Secretary's Guarantee or any reasonable expenses incurred by the Secretary as a result of the Default. (f) All notices and submissions provided for hereunder shall be in writing (including by telex, telecopier or any other form of facsimile communication) and mailed or sent or delivered, as to each party hereto, at its address set forth below or at such other address as shall be designated by such party in a written notice to the other party hereto. All such notices and other communications shall be effective when received as follows: (i) if sent by hand delivery, upon delivery; (ii) if sent by mail, Resolution No. 04-28-22-8.5 Page 16 of 164 upon the earlier of the date of receipt or five Business Days after deposit in the mail, postage prepaid; (iii) if sent by telex, upon receipt by the sender of an answer back; and (iv) if sent by telecopier, upon receipt. The Secretary: U.S. Dept. of Housing and Urban Development Attention: Paul Webster, Director Financial Management Division 451 7th Street SW, Room 7282 Washington, DC 20410 Borrower: City of College Station, Texas Attention: Debbie Eller, Director Community Development Division PO Box 9960 College Station, TX 77840 13. Limited Liability. Notwithstanding any other provision of this Contract, the Fiscal Agency/Trust Agreements or the Note, any recovery against the Borrower for any liability for amounts due pursuant to the Note, the Fiscal Agency/Trust Agreements or this Contract shall be limited to the sources of security pledged in paragraph 5 or any Special Conditions of this Contract. Neither the general credit nor the taxing power of the Borrower, or of the State in which the Borrower is located, is pledged for any payment due under the Note, the Contract, or the Fiscal Agency/Trust Agreements. 14. Incorporated Grant Agreement . The Contract and the Note are hereby incorporated in and made a part of the Grant Agreement authorized by the Secretary on January 19, 2021 under the Funding Approval for grant number B-20-MC-48-0007 to the Borrower. In carrying out activities with the Guaranteed Loan Funds hereunder, the Borrower agrees to comply with the Act and 24 CFR Part 570, as provided in Subpart M thereof. 15. Special Conditions and Modifications: (a) Paragraph 5(c) of the contract is amended by deleting the paragraph as written in its entirety and substituting therefor the following: "(c) Other security described generally in paragraph 15, Resolution No. 04-28-22-8.5 Page 17 of 164 including but not limited to, all rights in and to the Security Documents defined in paragraph 15(d) and to the Collateral (defined in paragraph 15(c))described therein, and all rights in and to any other collateral approved by the Secretary and described in Attachment 4.” (b) Guaranteed Loan Funds shall be used by the Borrower for the activities described in subparagraphs (i), (ii), and (iii), subject to the requirements in subparagraph (iv). (i) Borrower shall use the Guaranteed Loan Funds to make a loan to LULAC Oak Hill, Inc. (the “Subrecipient”), a non-profit, to carry out housing rehabilitation activities under 24 CFR 570.202 pursuant to 24 CFR 570.703(h), in connection with the LULAC Oak Hill Apartments Project (the “Project”). (ii) Reserved. (iii) Reserved. (iv) Requirements on the use of Guaranteed Loan Funds: (A)Transfer of Guaranteed Loan Funds : The Borrower shall not grant, loan, or otherwise transfer Guaranteed Loan Funds to any entity other than the Subrecipient to carry out the activity described in paragraph 15(b)(i). Borrower shall not transfer Guaranteed Loan Funds to the Subrecipient until Borrower has received written approval from HUD approving the form of the Subrecipient Note and Subrecipient Loan Agreement (as defined in paragraph 15(b)(iv)(B)) and all other Security Documents (as defined in paragraph 15(d)) related to the pledge of collateral by the Subrecipient to the Borrower as security for the Subrecipient Note (including the legal opinion described in paragraph 15(e)(vii)) and the pledge of collateral by the Borrow to HUD as security for repayment Resolution No. 04-28-22-8.5 Page 18 of 164 of the Note, and such other charges as may be authorized in this Contract. The requirements in 24 CFR 570.503 and other provisions of 24 CFR part 570 related to subrecipients apply to the Borrower’s transfer of Guaranteed Loan Funds to the Subrecipient and the activity carried out through the Subrecipient. (B)Subrecipient Loan Terms Borrower’s loan to the Subrecipient shall be evidenced by a promissory note (the “Subrecipient Note”) and a loan agreement that includes the provisions required by 24 CFR 570.503 (the “Subrecipient Loan Agreement”). The Subrecipient Note and Subrecipient Loan Agreement shall be in a form acceptable to the Secretary, shall be in form and content consistent with this Contract (with such provisions as are necessary to ensure compliance with requirements applicable to the use of the Guaranteed Loan Funds), enforceable under state and local law, and shall contain such other provisions as a prudent lender would reasonably require.. The Subrecipient Loan Agreement shall, as a condition of the loan, obligate Subrecipient to pledge the collateral described in paragraph 15(c). The Subrecipient Loan Agreement shall also prohibit Subrecipient from selling, conveying, transferring or further encumbering the Property (as defined in paragraph 15(c)(i)) or any part thereof or any interest therein (whether legal, equitable, or beneficial), whether voluntarily, by gift, bequest, operation of law, merger, or in any other manner, after granting the lien described in paragraph Resolution No. 04-28-22-8.5 Page 19 of 164 15(c)(i) without HUD’s prior written approval. The Subrecipient Loan Agreement shall also include any provisions necessary or appropriate to ensure compliance with all requirements associated with the use of the Guaranteed Loan Funds contained in this Contract and 24 CFR part 570, and to ensure that in the event that HUD’s requirements conflict with any other agreement governing the use of the funds, HUD’s requirements on the use of Guaranteed Loan Funds shall control. The amount of principal and/or interest payable under the Subrecipient Note during the twelve-month period beginning July 1 of each year and ending on June 30 of the next succeeding year shall be equal to or greater than the amount of principal and/or interest payable under the Note for the corresponding period. The Subrecipient Note shall not be subject to redemption or prepayment earlier than the earliest possible redemption date under the terms of the Note. (C)Intercreditor and Other Agreements. If HUD requirements made applicable by this Contract conflict with any other agreement governing the use of the Guaranteed Loan Funds, HUD’s requirements on the use of Guaranteed Loan Funds shall control. Without written approval by the Secretary, neither the Subrecipient or the Borrower shall enter or amend an intercreditor agreement, subordination agreement, or similar agreement that affects the Borrower’s or HUD’s rights under the Security Documents as defined in paragraph 15(d) or the collateral pledged to secure the Subrecipient’s payment obligation under the Subrecipient Note or the rights assigned to HUD under the Security Documents pledged to Resolution No. 04-28-22-8.5 Page 20 of 164 secure the Note, including HUD’s rights under the lien described in paragraph 15(c)(i)(each individually, an “Intercreditor Agreement”). Intercreditor Agreements approved by the Secretary, including amendments, must be in a form acceptable to the Secretary. (D)New Markets Tax Credits. Without prior written approval by HUD, the Borrower shall not use Guaranteed Loan Funds for an activity that is part of a project in which New Markets Tax Credits are part of the financing structure or in which Guaranteed Loan Funds will be used to leverage or generate New Markets Tax Credits pursuant to Section 45(D) of the Internal Revenue Code. At the discretion of the Secretary, HUD’s approval and any related conditions may be provided in Attachment 4, as discussed below. (E)Alternative Collateral and Security Arrangements. The Borrower shall not incur any obligations to be paid with Guaranteed Loan Funds which will be subject to the alternative collateral or security arrangements described in paragraph 15(c)(iv) prior to the approval and memorialization of the alternative collateral or security arrangements in Attachment 4. (F)Limitation on Tax-Exempt Bond Financing . Without prior written approval by HUD, the Borrower shall not use Guaranteed Loan Funds for an activity or project that is financed in whole or in part with tax-exempt bonds. HUD will not unreasonably withhold approval if the use of Guaranteed Loan Funds complies with the requirements of 26 U.S.C. 149 and Circular No. A-129, Policies for Federal Credit Programs and Non-Tax Receivables, published by the White House Office of Management and Budget. (c) To secure the payment and performance of the obligations of the Subrecipient to the Borrower in the Subrecipient Note and Subrecipient Loan Agreement, the Borrower shall obtain the collateral in subparagraphs (i) through (iii). Resolution No. 04-28-22-8.5 Page 21 of 164 Alternatively, the Borrower may seek approval from HUD for alternative collateral or security arrangements, as described in subparagraph (iv) below. The pledges and assignments required by (i) – (iii) and related security agreements, security documents, and financing statements required by (v) may be made in the instruments identified therein, or in a single instrument (individually or collectively, the “Subrecipient Mortgage, Assignment, Security Agreement, and Fixture Filing”), which shall be signed by the Subrecipient, be in a form acceptable to the Secretary, and contain any provisions the Secretary deems necessary. Collectively, the collateral described or identified in (i) – (iv) shall be referred to as the "Collateral", and shall be subject to the requirements in (v): (i) A sole first-priority lien on the real property described in Attachment 3, including all water rights, air rights, and other real property interests, together with any fixtures located on and any personal property affixed to, installed in, or attached to the real property, whether now owned or here-after acquired (the “Property”), established through an appropriate and properly recorded mortgage or deed of trust signed by the Subrecipient as mortgagor and securing repayment of the indebtedness evidenced by the Subrecipient Note, which shall contain such provisions as the Secretary deems necessary, and which must be in a form acceptable to the Secretary, including any subsequent amendments thereto. (ii) A first lien security interest in any and all rights, titles, and interests in and to any leases covering the Property and any rents derived from the Property. Such rights, titles, and interests shall be the subject of an appropriate and properly recorded collateral assignment of leases and rents, which shall be in a form acceptable to the Secretary, including any amendments thereto. (iii) A first lien security interest in any and all rights titles, and interests in and to any permits, licenses, agreements, and other intangible personal Resolution No. 04-28-22-8.5 Page 22 of 164 property rights covering the Property, including but not limited to utility connection rights, or insurance policies held by the Subrecipient with respect to the Property, whether now owned or hereafter acquired, and which are used in connection with the maintenance, use, occupancy or enjoyment of the Property. Such rights, titles, and interests shall be the subject of a collateral assignment of interest in licenses, permits, and other agreements, which shall be in a form acceptable to the Secretary, including any amendments thereto. (iv) Such other alternative collateral or security arrangements as may be requested by the Borrower and approved by the Secretary in writing, which may include collateral pledged by the Subrecipient or directly by the Borrower. The alternative collateral shall be described in Attachment 4 to this Contract, which may be updated from time to time to include all alternative collateral approved by the Secretary as security for the Note. The last dated Attachment 4 that is agreed to and acknowledged by the signature of the parties identified in paragraph 12, their successors, or other authorized agents of the parties, is incorporated into this Contract and shall represent the agreement of the parties. (v) The Borrower shall take all steps necessary to attach, perfect, and maintain the perfection and priority of its security interests, and security interests granted to the Secretary, in the Collateral described in (i) through (iv), unless otherwise required by this paragraph or Attachment 4. Real property interests must be properly recorded. Personal property and fixtures pledged as Collateral shall be included in valid agreements necessary for attachment and perfection, for example, a security agreement that reasonably identifies the property, or in the case of a deposit account, a deposit account control agreement (together, the “Security Agreement or Other Security Documents”). As needed for attachment and perfection, the Security Agreement or Other Security Documents shall be referenced in appropriate Uniform Commercial Code (“UCC”) Financing Statements filed Resolution No. 04-28-22-8.5 Page 23 of 164 in accordance with applicable law and the UCC. The Security Agreement and Other Security Documents and related UCC Financing Statements shall contain such provisions as the Secretary deems necessary. UCC Financing Statements shall be refiled by the Borrower as necessary to remain current and effective. (d) Unless otherwise agreed to by the Secretary, the Borrower shall select a financial institution acceptable to the Secretary (the "Custodian") to act as custodian for the documents specified in 15(e) below (the "Security Documents"). The Borrower and the Custodian shall enter into a written agreement containing such provisions as the Secretary deems necessary. A fully signed original agreement shall be delivered to the Secretary contemporaneously with the delivery of this Contract and the Note. At the request of the Secretary, Borrower shall deliver electronic copies of all Security Documents to the office identified in paragraph 12, or upon the request of the Secretary, electronic copies to an address to be identified by the Secretary. (e) Not later than five business days after receipt by the Borrower of the Guaranteed Loan Funds, or at such other time as may be required by the Secretary, the Borrower shall deliver to the Custodian the following: (i) The Subrecipient Note, endorsed in blank and without recourse. (ii) The original Subrecipient Loan Agreement and a collateral assignment thereof to the Secretary, of which both shall be in a form acceptable to the Secretary . (iii) The original recorded Subrecipient Mortgage, Assignment, Security Agreement, and Fixture Filing (which may consist of one or more instruments that contain the mortgage and assignments from the Subrecipient to the Secretary required by 15(c)(i), (ii), and (iii)), and the related Security Agreement or Other Security Documents and UCC Financing Statements required by 15(c)(v)), together with assignments thereof from the Borrower to the Secretary, in a recordable form but unrecorded, all of which shall be in a form acceptable to the Resolution No. 04-28-22-8.5 Page 24 of 164 Secretary. The original Subrecipient Mortgage, Assignment, Security Agreement, and Fixture Filing shall be accompanied by copies of all UCC Financing Statement filings and re-filings made by the Borrower or Subrecipient pursuant to 15(c)(v). (iv) A mortgagee title policy covering the Property, issued by a company acceptable to the Secretary and in a form acceptable to the Secretary, naming the Borrower as the insured party. The policy must either include in the definition of the "insured" each successor in ownership of the indebtedness secured by the Subrecipient Mortgage, Assignment, Security Agreement, and Fixture Filing or be accompanied by an endorsement of the policy to the Secretary. The policy shall indicate that the Borrower has the security interest indicated in 15(c)(i). (v) An appraisal of the ownership interest in the Property specifying an estimate of the “as completed” fair market value of not less than 125 percent (125%) of the principal balance of the Note plus 125 percent (125%) of any outstanding balance on other indebtedness secured by a mortgage lien of senior or equal priority on the Property, if agreed to by the Secretary. The appraisal shall be completed by an appraiser who is certified by the state and has a professional designation (such as "SRA" or "MAI"), and it shall conform to the standards of the Financial Institutions Reform, Recovery and Enforcement Act of 1989 ("FIRREA"). (vi) A certified survey of the Property with a legal description conforming to the title policy and the Subrecipient Mortgage, Assignment, Security Agreement, and Fixture Filing. (vii) An opinion of the Borrower's counsel on its letterhead, addressed and satisfactory to the Secretary, that: Resolution No. 04-28-22-8.5 Page 25 of 164 (A) The Subrecipient is duly organized and validly existing as a [corporation, partnership, etc.] under the laws of the State of Texas is [existing, qualified to do business, in good standing, as applicable] in and under the laws of the State of Texas; (B) The Subrecipient Note has been duly executed and delivered by a party authorized by the Subrecipient to take such action and is a valid and binding obligation of the Subrecipient, enforceable in accordance with its terms, except as limited by bankruptcy and similar laws affecting creditors generally; and (C) The security instruments specified in (ii) and (iii) above, including assignments to the Secretary, are valid and legally binding obligations, enforceable in accordance with their respective terms. To the extent that the foregoing opinion deals with matters customarily within the due diligence of counsel to the Subrecipient, Borrower's counsel may attach and expressly rely on an opinion of Subrecipient’s counsel satisfactory to the Secretary. (viii) Any instruments, documents, agreements, and legal opinions required pursuant to paragraph 15(c), or Attachment 4, including an opinion of the Borrower’s counsel that the instruments, documents, and agreements are valid and legally binding obligations, enforceable in accordance with their respective terms. These instruments shall include any Security Agreement or Other Security Documents required by paragraph 15(c)(v), and an assignment thereof to the Secretary, which shall be in a form acceptable to the Secretary. The Security Agreement or Other Security Documents shall be accompanied by copies of all UCC Financing Statement filings and re-filings required by paragraph 15(c)(v). (f) Borrower shall not amend, modify, supplement, terminate, or perform any act that might affect the Security Documents without the prior written approval of HUD. Resolution No. 04-28-22-8.5 Page 26 of 164 (g) Notwithstanding paragraph 15(e), if the original Subrecipient Mortgage, Assignment, Security Agreement, and Fixture Filing has not been returned from the appropriate office(s) in which they must be recorded within five (5) business days of recipient by the Borrower of the Guaranteed Loan Funds, the Borrower shall deliver an electronic copy of the relevant instrument together with a recordation receipt or other evidence of recordation to the Custodian within the timeframe prescribed in 15(e) instead, and shall subsequently deliver the original Subrecipient Mortgage, Assignment, Security Agreement, and Fixture Filing and assignment thereof to the Custodian within five (5) business days after receipt from local recordation office, but not later than 45 days after disbursement of Guaranteed Loan Funds. (h) Borrower shall deliver to the Custodian all recorded re- filings of financing statements or filings of continuation statements filed by Subrecipient or Borrower to continue the effectiveness of the financing statements made pursuant to this Contract within five business days of such filings. (i) Paragraph 12 is amended by adding at the end thereof the following language: "(g) The Secretary may record the assignments referred to in paragraph 15(e), or take any other measures to effectuate the transfer of the documents referenced and underlying indebtedness from the Borrower to the Secretary or the Secretary's assignee. (h) The Secretary may exercise or enforce any and all other rights or remedies available by law or agreement, including any and all rights and remedies available to a secured party under the Uniform Commercial Code or in any of the Security Documents (as defined in paragraph 15(d)), against the Collateral, against the Borrower, against the Subrecipient, or against any other person or property (including the Property)." (j) The Borrower agrees that it shall promptly notify the Secretary in writing upon the occurrence of any event which constitutes a default (an "Event of Default") under (and as defined in) any of the Security Documents, as Resolution No. 04-28-22-8.5 Page 27 of 164 defined in paragraph 15(d). Notification of an Event of Default shall be delivered to the Secretary as directed in paragraph 12(f) above. Upon the occurrence of an Event of Default, the Secretary may (without prior notice or hearing, which Borrower hereby expressly waives), in addition to (and not in lieu of) exercising any and all remedies that may be available under the Security Documents, declare the Note in Default and exercise any and all remedies available under paragraph 12. This paragraph shall not affect the right of the Secretary to declare the Note in Default pursuant to paragraph 11 and to exercise in connection therewith any and all remedies available under paragraph 12. (k) Additional Grounds for Default. Notice of Default. Restriction of Pledged Grants. Availability of Other Remedial Actions. (i) The Borrower acknowledges and agrees that the Secretary's guarantee of the Note is made in reliance upon the availability of grants pledged pursuant to paragraph 5(a) (individually, a "Pledged Grant" and, collectively, the "Pledged Grants") in any Federal fiscal year subsequent to the Federal fiscal year ending September 30, 2021 to: (A) pay when due the payments to become due on the Note, or (B) defease (or, if permitted, prepay) the full amount outstanding on the Note. The Borrower further acknowledges and agrees that if the Secretary (in the Secretary's sole discretion) determines that Pledged Grants are unlikely to be available for either of such purposes, such determination shall be a permissible basis for any of the actions specified in paragraphs (ii) and (iii) below (without notice or hearing, which the Borrower expressly waives). (ii) Upon written notice from the Secretary to the Borrower at the address specified in paragraph 12(f) above that the Secretary (in the Secretary's sole discretion) has determined that Pledged Grants are unlikely to be available for either of the purposes specified in (A) and (B) of paragraph (i) above (such notice being hereinafter referred to as the "Notice of Impaired Security"), the Secretary may limit the availability of Pledged Grants by withholding amounts at the time a Pledged Grant is Resolution No. 04-28-22-8.5 Page 28 of 164 approved or by disapproving payment requests (drawdowns) submitted with respect to Pledged Grants. (iii) If after 60 days from the Notice of Impaired Security the Secretary (in the Secretary's sole discretion) determines that Pledged Grants are still unlikely to be available for either of the purposes specified in (A) and (B) of paragraph (i) above, the Secretary may declare the Note in Default and exercise any and all remedies available under paragraph 12. This paragraph (iii) shall not affect the right of the Secretary to declare the Note and/or this Contract in Default pursuant to paragraph 11 and to exercise in connection therewith any and all remedies available under paragraph 12. (iv) All notices and submissions provided for hereunder above shall be submitted as directed in paragraph 12(f). (l) Notwithstanding any other provision of the Note or this Contract, the following provisions to assure compliance with Texas law shall govern: (i) The Secretary shall not require the Note to be converted to a fixed-rate Note pursuant to Sections II and III thereof at an interest rate on any Principal Amount on Schedule P&I thereof that exceeds the maximum rate payable by the Borrower thereon under generally applicable Texas law, including Chapter 1204 of the Texas Government Code, as amended. This limitation on the interest rate on the principal of the Note also applies if the Note bears interest at a variable rate prior to a conversion to a fixed rate. In addition, the accrual of interest on unpaid interest shall be limited to the extent permissible under Texas law. (ii) Part I, paragraph C, of the Contract is amended to delete the last sentence thereof, and to insert the following two new sentences at the end: “The Borrower agrees that the interest rate at which the trust certificate corresponding to a Resolution No. 04-28-22-8.5 Page 29 of 164 specified Principal Due Date on Schedule P&I of the Note is sold to the Underwriters shall be the interest rate inserted on the Conversion Date in Schedule P&I for the Principal Amount corresponding to such Principal Due Date. Such interest rate for each trust certificate shall be that rate which the Underwriters determine will enable them to sell under then-prevailing market conditions such certificate, or interests therein, for 100% of the Principal Amount of such certificate.” (iii) Paragraph 4(e) of the Contract is amended by deleting the paragraph as written in its entirety and substituting therefor the following: “(e) The undertakings in paragraphs 3 and 4 of this Contract are expressly subject to the requirement that the Fiscal Agency/Trust Agreements shall in no event require payment of fees or charges, reimbursement of expenses or any indemnification by the Borrower from any source other than funds pledged pursuant to paragraphs 5(a) and (b) of this Contract.” (iv) The provisions of the Fiscal Agency/Trust Agreements (including any future amendments thereto or any new fiscal agency or trust agreements in the future) relating to indemnification, standard of care, choice of law and disposition of unclaimed property as they concern the Borrower are subject to the limitations of this Contract and will be enforceable against the Borrower only to the extent permitted by Texas law. The Secretary further agrees that he will require the Fiscal Agent and Trustee to maintain the registration books referred to in section 5.01 of the Amended and Restated Master Fiscal Agency Agreement and in section 5.03 of the Trust Agreement in a form that can be converted to a writing and a copy of which can be provided to the Borrower in Texas within a reasonable time after request. (v) To the extent that a pledge of ad valorem tax is securing payment of all or a portion of the principal of and interest on the Note, Resolution No. 04-28-22-8.5 Page 30 of 164 acceleration of the maturity date of that portion of the Note shall not be available as a remedy in the event of a default by the Borrower under the Note or this Contract. (m) If any one or more of the covenants, agreements, provisions, or terms of this Contract shall be for any reason whatsoever held invalid, then such covenants, agreements, provisions or terms shall be deemed severable from the remaining covenants, agreements, provisions or terms of this Contract and shall in no way affect the validity or enforceability of the other provisions of this Contract or of the Note or the rights of the Holder thereof. [Rest of Page Intentionally Left Blank] Resolution No. 04-28-22-8.5 Page 31 of 164 THE UNDERSIGNED, as authorized officials on behalf of the Borrower or the Secretary, have executed this Contract for Loan Guarantee Assistance, which shall be effective as of the date of execution hereof on behalf of the Secretary. City of College Station, Texas BORROWER BY: (Signature) (Name) (Title) (Date) SECRETARY OF HOUSING AND URBAN DEVELOPMENT BY: (Signature) Kevin J. Bush (Name) Deputy Assistant Secretary for Grant Programs_______ (Title) (Date) Resolution No. 04-28-22-8.5 Page 32 of 164 Note No. B-20-MC-48-0007 Attachment 1 U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT LETTER AGREEMENT FOR SECTION 108 LOAN GUARANTEE PROGRAM DEPOSIT ACCOUNT Name of Institution (and Branch) Street City, State, Zip Code ************************************************************************ [ ] This account is established for funds received by the Borrower under Note(s) guaranteed by the United States Department of Housing and Urban Development (HUD) under the Section 108 Loan Guarantee Program (Guaranteed Loan Funds Account). [ ] This account is established for repayment of the Note(s) guaranteed by HUD under the Section 108 Loan Guarantee Program (Loan Repayment Account). [ ] This account is established as a debt service reserve under the Section 108 Loan Guarantee Program (Debt Service Reserve Account). You are hereby authorized and requested to establish a deposit account to be specifically designated: "The City of College Station, Texas, as Trustee of United States Department of Housing and Urban Development." All deposits made into such account shall be subject to withdrawal therefrom by the Borrower named below, unless and until HUD provides you with a notice that it is assuming control over the account. Thereafter withdrawals may not be made by the Borrower. Within a reasonable period of time, not to exceed two business days, after your receipt of such notice from HUD, you shall so prevent such Borrower withdrawals and, if requested by HUD in writing, shall thereafter forward monthly to HUD, to an account it specifies in its notice, the collected and available balance in such account. You are further authorized, after receipt of the notice from HUD, to refuse to honor any instrument drawn upon or withdrawals from such account by parties other than HUD. In no instance shall the funds in the deposit account be used to offset funds which may have been advanced to, or on behalf of, the Borrower by you. You are permitted, however, to debit from Resolution No. 04-28-22-8.5 Page 33 of 164 the account your customary fees and charges for maintaining the account and the amount of any deposits that are made to the account and returned unpaid for any reason. Such account shall also be subject to your standard agreement and documents relating to the opening and maintenance of bank accounts with you. In the event of any conflict between this Letter Agreement and such agreements and documents, this Letter Agreement shall control. This letter is submitted to you in duplicate. Please execute the duplicate copy of the certificate below, acknowledging the existence of such account, so that we may present the copy signed by you to HUD. Name of Borrower: College Station, Texas By: Date: [Signature] Name and Title: ************************************************************************ The undersigned institution certifies to the United States Department of Housing and Urban Development (HUD) that the account identified is in existence in this institution under account number: , and agrees with the Borrower named above and HUD to promptly comply with HUD's notice in the manner provided in the above letter, but in no event to exceed two business days. The undersigned institution further agrees, after receipt of the HUD notice as set forth above, to refuse to honor any instruments drawn upon or withdrawals from such account by parties other than HUD. In no instance shall the funds in the deposit account be used to offset funds which may have been advanced to, or on behalf of, the Borrower by the institution, except as set forth above. Deposits in this institution are insured by the Federal Deposit Insurance Corporation, the Federal Savings and Loan Insurance Corporation, or the National Credit Union Administration up to statutory limits. Name of Institution: By: Date: (Signature) Name and Title: 8-28-08 Resolution No. 04-28-22-8.5 Page 34 of 164 Note No. B-20-MC-48-0007 Attachment 2 U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT LETTER AGREEMENT FOR SECTION 108 LOAN GUARANTEE PROGRAM INVESTMENT ACCOUNT Name of Institution (and Branch) Street City, State, Zip Code ************************************************************************ [ ] This account is established to hold obligations and their assignments, such obligations having been purchased with funds from the Guaranteed Loan Funds Account (Guaranteed Loan Funds Investment Account). [ ] This account is established to hold obligations and their assignments, such obligations having been purchased with funds from the Loan Repayment Account (Loan Repayment Investment Account). [ ] This account is established to hold obligations and their assignments, such obligations having been purchased with funds from the Debt Service Reserve Account (Debt Service Reserve Investment Account). You are hereby authorized and requested to hold obligations and assignments of those obligations in trust for the United States Department of Housing and Urban Development (HUD) in an account specifically designated: "The City of College, Texas, as Trustee of United States Department of Housing and Urban Development." All obligations and assignments shall be subject to release to the Borrower named below, unless and until HUD provides you with a notice that it is assuming control over the account. Thereafter, releases may not be made by the Borrower. Within a reasonable period of time, not to exceed two business days, after your receipt of such notice from HUD, you shall so prevent such Borrower releases and, if requested by HUD in writing, shall thereafter forward monthly to HUD, to an account it specifies in its notice, the collected and available balance in such account. Resolution No. 04-28-22-8.5 Page 35 of 164 You are further authorized, after receipt of the notice from HUD, to refuse to honor any request for release of the obligations and assignments from such account by parties other than HUD. In no instance shall the obligations in this account be used to offset funds which may have been advanced to, or on behalf of, the Borrower by you. You are permitted, however, to debit from the account your customary fees and charges for maintaining the account and the amount of any deposits that are made to the account and returned unpaid for any reason. Such account shall also be subject to your standard agreement and documents relating to the opening and maintenance of bank accounts with you. In the event of any conflict between this Letter Agreement and such agreements and documents, this Letter Agreement shall control. This letter is submitted to you in duplicate. Please execute the duplicate copy of the certificate below, acknowledging the existence of such account, so that we may present the copy signed by you to HUD. Name of Borrower: College Station, Texas __________________ By: Date: [Signature] Name and Title: ************************************************************************ The undersigned institution certifies to the United States Department of Housing and Urban Development (HUD) that the account identified is in existence in this institution under account number: , and agrees with the Borrower named above and HUD to promptly comply with HUD's notice in the manner provided in the above letter, but in no event to exceed two business days. The undersigned institution further agrees, after receipt of the HUD notice as set forth above, to refuse to honor any request for release of the obligations and assignments from such account by parties other than HUD. In no instance shall the obligations in the account be used to offset funds which may have been advanced to, or on behalf of, the Borrower by the financial institution, except as set forth above. Deposits in this institution are insured by the Federal Deposit Insurance Corporation, the Federal Savings and Loan Insurance Corporation, or the National Credit Union Administration up to the statutory limits. Name of Institution: By: Date: (Signature) Name and Title: 8-28-08 Resolution No. 04-28-22-8.5 Page 36 of 164 ATTACHMENT 3 [Description of Real Property] Resolution No. 04-28-22-8.5 Page 37 of 164 ATTACHMENT 4 HUD-Approved Alternative Collateral or Security Arrangements Date: _______________________________ This attachment may be updated from time to time as anticipated by paragraph 15(c)(iv). The last dated Attachment 4 that is signed by the parties identified in paragraph 12, or their successors or other authorized agents of the parties, is incorporated into the Contract for Loan Guarantee Assistance (the Contract) and shall represent the agreement of the parties. The last dated Attachment 4 shall include a list of all previously approved alternative collateral or security arrangements that secure either the Note or the Subrecipient Note, as those terms are defined in the Contract, and any newly approved alternative collateral or security arrangement. Date Approved by HUD: __________________________________ Note Number: _________________ Maximum Commitment Amount: _____________________________________ Subrecipient:______________________ These alternative collateral and security arrangements are agreed to by the Secretary and the Borrower pursuant to paragraph 15(c)(iv), and describe the obligations related to the HUD-guaranteed promissory note executed by Borrower on ____________, numbered _____________________, in the Maximum Commitment Amount of $__________________ (the “_________________ Project Note”). The Secretary and Borrower agree to the following: Resolution No. 04-28-22-8.5 Page 38 of 164 U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT SECTION 108 LOAN GUARANTEE PROGRAM VARIABLE/FIXED RATE NOTE NOTE NUMBER: B-20-MC-48-0007 DATE OF NOTE: _____________________ BORROWER: City of College Station, Texas [LULAC Oak Hill Apartments Project] PRINCIPAL DUE DATES AND PRINCIPAL AMOUNT: Before the Conversion Date, the aggregate of Advances made for each applicable Principal Due Date specified in the Commitment Schedule to this Note; on or after the Conversion Date, the Principal Amount (if any) listed for each Principal Due Date in Schedule P & I hereto. MAXIMUM COMMITMENT AMOUNT: $2,808,000 COMMITMENT AMOUNTS: See Commitment Schedule attached hereto. VARIABLE INTEREST RATE: As set forth below. REGISTERED HOLDER: Daedalus & Co As Nominee for Federated Hermes Money Market Obligations Trust on behalf of its Federated Hermes Government Obligations Fund I. Terms Applicable Before the Conversion Date A. Advances For value received, the undersigned, the City of College Station (the "Borrower"), which term includes any successors and assigns, a public entity organized and existing under the laws of the State (or Commonwealth as applicable) of Texas, promises to pay to the Registered Holder (the "Holder," which term includes any successors or assigns), at the time, in the manner, and with Exhibit B Resolution No. 04-28-22-8.5 Page 39 of 164 2 interest at the rate or rates hereinafter provided, such amounts as may be advanced under this Note from time to time by the Holder for disbursement to, or on behalf of, the Borrower (individually, an "Advance", and collectively, "Advances"). The Holder shall make Advances upon the written request of the Borrower and the approval of the Secretary of Housing and Urban Development or his designee (the "Secretary"), pursuant to the Contract for Loan Guarantee Assistance (as further defined in Section IV.A. of this Note, the "Contract"), and the Amended and Restated Master Fiscal Agency Agreement (the "Fiscal Agency Agreement") dated as of May 17, 2000, between The Bank of New York Mellon (successor to The Chase Manhattan Bank and JPMorgan Chase Bank, N.A.), as Fiscal Agent (the "Fiscal Agent"), and the Secretary. The total amount of Advances made for each Principal Due Date under this Note shall not exceed the applicable Commitment Amount for such Principal Due Date set forth on the Commitment Schedule attached hereto. The aggregate of all Advances under this Note for all Principal Due Dates shall not exceed the Maximum Commitment Amount specified on the attached Commitment Schedule. The Fiscal Agent shall record the date and amount of all payments and Advances on this Note and maintain the books and records of all such Advances and Commitment Amounts for each corresponding Principal Due Date, and all payments. No Advances shall be made on this Note after its Conversion Date. As used herein, "Conversion Date" means the date (if any) upon which this Note is (i) delivered by the Holder to the Fiscal Agent against payment therefore by the purchasers selected by the Secretary to make such payment; and (ii) assigned to Bank of New York Mellon (or any successor thereto) acting in its capacity as Trustee (the "Trustee") pursuant to a Trust Agreement between the Secretary and the Trustee, dated as of January 1, 1995, as such agreement may be amended or supplemented (the "Trust Agreement"). Upon the occurrence of both (i) and (ii) in the previous sentence, Section III of this Note applies, thereby converting this Note to a fixed rate obligation. B. Variable Rate of Interest From and including the date of each Advance to but excluding the earlier of (i) the Conversion Date, and (ii) the date of redemption or prepayment of such Advance pursuant to Section I.D. below (each such date of redemption or prepayment, a "Prepayment Date") interest shall be paid quarterly at a variable interest rate (as set forth below) on the unpaid principal balance of each Advance on the first day of each February, May, August and November (each, an "Interim Payment Date"), commencing on the first Interim Payment Date after the initial Advance is made under this Note. Interest also shall be paid on each applicable Conversion Date, Prepayment Date or Principal Due Date. The amount of interest payable on each Interim Payment Date will represent interest accrued during the three-month period ending immediately prior to such Interim Payment Date, or in the case of the first Interim Payment Date following each Advance that is not made on an Interim Payment Date, the period from and including the date of such Advance to but excluding the first Interim Payment Date following such Advance. The amount of interest payable on this Note's Conversion Date, Prepayment Date, or on any Principal Due Date that precedes such Conversion Date will represent interest accrued during the period from the last Interim Payment Date to such Conversion Date, Prepayment Date, or Principal Due Date, respectively. Resolution No. 04-28-22-8.5 Page 40 of 164 3 The initial variable interest rate for each Advance will be set on the date of such Advance and will be equal to the Applicable Rate (as hereinafter defined) and thereafter will be adjusted monthly on the first day of each month (each, a "Reset Date") to a variable interest rate equal to the Applicable Rate (such interest rate, as reset from time to time, the "Standard Note Rate"). If Secretary and Holder agree to a Subsequent Rate (as hereinafter defined) and Subsequent Variable Interest Rate (as hereinafter defined) pursuant to paragraph IV.H. of this Note, the Secretary shall notify the Fiscal Agent in writing of any Subsequent Rate and Subsequent Variable Interest Rate within two Business Days of the determination thereof. If the Conversion Date for this Note has not occurred by the March 1 following the initial Advance under this Note, then the terms of Appendix A shall be used to set the variable interest rate. If the Fiscal Agent does not receive notice of either a Negotiated Special Interest Rate or Holder Determined Special Interest Rate (as defined in Appendix A attached hereto) from the Secretary or Holder, respectively, by the times specified in Appendix A to this Note, then the Standard Note Rate shall apply for the period to which such Negotiated Special Interest Rate or Holder Determined Special Interest Rate would otherwise apply. The Fiscal Agent may conclusively rely on any such notice as to the correctness of any matters set forth therein. Appendix A shall be inapplicable to this Note on or after the Conversion Date. "3-Month T-Bill Rate" for any given Business Day means, except in the case of manifest error, the High Rate announced in the most recent Treasury Auction Results release corresponding to the 13-Week Bill auction with an auction date on a day preceding the initial Advance, or for subsequent Advances, the most recent Reset Date (but not with respect to an auction published on any Reset Date), as published on TreasuryDirect or any successor publication, published by the U.S. Department of the Treasury Bureau of the Fiscal Service, under the “Financial Institutions” heading (or any successor heading), in the section titled “Announcements, Data & Results” (or any successor section) and under the subsection “Bills – Security Term: 13-Week” (or any successor caption). If, as of any Reset Date, such rate was not published on TreasuryDirect or any successor publication any day since the immediately preceding Reset Date, for each interest period, the 3-Month T-Bill Rate shall be the yield on Treasury Bills (secondary market) with 3-month maturity, as reported in Federal Reserve Statistical Release H. 15, Selected Interest Rates of the Board of Governors of the Federal Reserve System (or any successor publication). Prior to the effective date of a Subsequent Rate and Subsequent Variable Interest Rate established by an amendment to this Note pursuant to paragraph IV.H. of this Note, "Applicable Rate" means: (1) with respect to the initial interest rate for the first Advance hereunder, 35 basis points (0.35%) above the 3-Month T-Bill Rate one New York Banking Day before the date of such first Advance; (2) with respect to the initial interest rate for any subsequent Advance made before the first Reset Date, the interest rate borne by the first Advance; (3) with respect to the initial interest rate for any subsequent Advance made after the first Reset Date, 35 basis points (0.35%) above the 3-Month T-Bill Rate one New York Banking Day before the immediately preceding Reset Date; and (4) with respect to the subsequent interest rate at any Reset Date for any Advance, 35 basis points (0.35%) above the 3-Month T-Bill Rate one New York Banking Day before such Reset Date. Resolution No. 04-28-22-8.5 Page 41 of 164 4 Upon the effective date of a Subsequent Rate and Subsequent Variable Interest Rate established by an amendment to this Note pursuant to paragraph IV.H. of this Note, “Applicable Rate” means the Subsequent Variable Interest Rate. "New York Banking Day" means any day in which dealings in deposits in United States dollars are transacted in the New York interbank market. Interest payable on or before the Conversion Date shall be calculated on the basis of a 360-day year and the actual number of days lapsed. “Subsequent Rate” means the rate, as agreed upon by Secretary and Holder, that shall be used in lieu of the 3-Month T-Bill Rate to establish the Applicable Rate, upon agreement between the Secretary and Holder. The Subsequent Rate shall be a rate that is publicly available daily. “Subsequent Variable Interest Rate” means the interest rate for each Advance that will be set on the date of such Advance and will be equal to a specific amount of basis points above or below the Subsequent Rate, and thereafter will be adjusted monthly on the Reset Date to an interest rate equal to a specific amount of basis points above or below the Subsequent Rate, all as agreed upon by the Secretary and Holder pursuant to paragraph IV.H. of this Note. C. Principal Amount Prior to the Conversion Date, the aggregate amount of Advances under this Note for each specified Principal Due Date shall be the Principal Amount paid by the Borrower on such Principal Due Date (as assigned to such Advances by the Secretary's instructions to the Fiscal Agent in accordance with the Contract and the Fiscal Agency Agreement), except to the extent such Principal Amount shall have been reduced by redemption before such Principal Due Date as provided below. D. Redemption before Conversion Date At any time on or before the Conversion Date, the Borrower, with the consent of the Secretary, may redeem this Note, in whole or in part, upon fourteen calendar days notice to the Fiscal Agent and the Secretary, at the purchase price of one hundred percent (100%) of the unpaid Principal Amount to be redeemed, plus accrued interest thereon to the date of redemption. Partial redemptions shall be credited against the applicable Principal Amount(s). The related Commitment Amounts and the Maximum Commitment Amount shall be adjusted concurrently with any such redemptions in accordance with the Secretary's instructions to the Fiscal Agent pursuant to the Contract and the Fiscal Agency Agreement. II. Conversion The following events shall occur on the Conversion Date: Resolution No. 04-28-22-8.5 Page 42 of 164 5 A. Schedule P&I On the Conversion Date all Advances owed by the Borrower under this Note with the same Principal Due Date shall be aggregated into a single Principal Amount which will accrue interest at the fixed rate applicable to such Principal Due Date. Such Principal Amount may be adjusted by the Fiscal Agent in accordance with the following paragraph or paragraph IV.H, as applicable. Whether or not adjusted, each Principal Amount, the fixed rate applicable to each Principal Amount, and the applicable Principal Due Date, shall be listed by the Secretary in Schedule P&I. Schedule P&I will be provided by the Secretary to the Fiscal Agent and attached to this Note by the Fiscal Agent upon the Fiscal Agent's receipt of this Note on the Conversion Date. B. Conversion Date Advances If, on or prior to the Conversion Date, the Borrower has not utilized the entire Commitment Amount indicated on the Commitment Schedule attached hereto for a given Principal Due Date, the Borrower may, in accordance with the Fiscal Agency Agreement and the Contract, and with the approval of the Secretary, utilize such Commitment Amount on the Conversion Date to obtain a Conversion Date Advance. A "Conversion Date Advance" shall mean any amount by which the Secretary instructs the Fiscal Agent to increase a Principal Amount on Schedule P&I for a given Principal Due Date, effective as of the Conversion Date of this Note. Conversion Date Advances shall be funded by the sale of this Note to the purchaser selected by the Secretary. The proceeds of a Conversion Date Advance (net of any applicable fees) shall be distributed to or on behalf of the Borrower on the Conversion Date. The total amount of Conversion Date Advances hereunder shall not exceed the sum of any unused Commitment Amounts for all Principal Due Dates. III. Terms Applicable Upon Conversion The following terms shall apply to this Note from the Conversion Date (if any) until this Note is canceled, or matured and paid in full: Commencing on the Conversion Date, the Borrower promises to pay to the Holder on the applicable Principal Due Date each Principal Amount set forth on the attached Schedule P&I, together with interest on each such Principal Amount at the rate applicable thereto specified on the Schedule P&I. Interest shall be calculated and payments shall be made in the manner set forth below. Interest on each scheduled Principal Amount of this Note due as of a given date specified on Schedule P&I hereto shall accrue at the related per annum rate specified on Schedule P&I from (and including) the Conversion Date to (but excluding) such Principal Due Date or, if applicable, to the applicable Interest Due Date on which an Optional Redemption (as defined below) occurs. Each interest amount accrued on each unpaid Principal Amount of this Note shall be due semiannually as of February 1 and August 1 of each year (each such February 1 and August 1, an "Interest Due Date") commencing on the first such date after the Conversion Date, until each Principal Amount listed on Schedule P&I to this Note is paid in full. Interest shall be calculated on the basis of a 360-day year consisting of twelve 30-day months. Resolution No. 04-28-22-8.5 Page 43 of 164 6 Certain Principal Amounts that are indicated as being eligible for Optional Redemption on Schedule P&I may be paid, in whole or in part, at the option of the Borrower as of any Interest Due Date on or after the date specified in such schedule (an "Optional Redemption"). In order to elect an Optional Redemption of such a Principal Amount, the Borrower shall give notice of its intention to prepay a Principal Amount to the Trustee and the Secretary not less than 60 days and not more than 90 days prior to the Interest Due Date as of which the Borrower intends to prepay the Principal Amount. The Trustee shall apply any payments received in respect of Optional Redemptions in accordance with written instructions of the Borrower, as approved by the Secretary. Principal Amounts that are not indicated as being eligible for Optional Redemption on Schedule P&I may not be prepaid. IV. General Terms A. Additional Definitions For purposes of this Note, the following terms shall be defined as follows: "Business Day" shall mean a day on which banking institutions in New York City are not required or authorized to remain closed and on which the Federal Reserve Bank and the New York Stock Exchange are not closed. If any payment (including a payment by the Secretary) is required to be made on a day that is not a Business Day, then payment shall be made on the next Business Day. "Contract" shall mean the Contract for Loan Guarantee Assistance, and any amendments thereto, among the Secretary and the Borrower, the designated public entity named therein (if applicable), and the State named therein (if applicable), that refers to and incorporates this Note by the number hereof. "Principal Amount" shall mean: (i) before the Conversion Date for this Note, the aggregate amount of Advances made for each Principal Due Date specified in the Commitment Schedule attached to this Note, less the amount of any redemptions pursuant to Section I.D. hereof, and any principal repayment; and (ii) on or after the Conversion Date, the principal amount (if any) stated for each Principal Due Date in Schedule P&I attached hereto, less the amount of any principal repayment and any Optional Redemptions made pursuant to Section III hereof and the Trust Agreement. Resolution No. 04-28-22-8.5 Page 44 of 164 7 B. Timely Payment to Fiscal Agent or Trustee Notwithstanding anything contained in Section I, Section II, or Section III, the Borrower, in accordance with the Contract, shall be required to make all payments of interest and principal, including any Optional Redemption payment, directly to the Fiscal Agent or the Trustee (as applicable) on the seventh Business Day prior to the appropriate Interim Payment Date, Interest Due Date, Principal Due Date, Prepayment Date, or date of Optional Redemption, as applicable. C. Interest on Late Payments If a payment of principal or interest herein provided for shall not be made by either (i) 2:30 p.m. on an Interest Due Date or Principal Due Date; or (ii) 2:30 p.m. on the second Business Day (as herein defined) next succeeding an Interim Payment Date, then interest shall accrue on the amount of such payment at the then applicable interest rate or rates payable on this Note, from the relevant due date, as the case may be, until the date such payment is made. Nothing in the immediately preceding sentence shall be construed as permitting or implying that the Borrower may, without the written consent of the Holder and the Secretary, modify, extend, alter or affect in any manner whatsoever the right of the Holder timely to receive any and all payments of principal and interest specified in this Note. D. Applicability of Fiscal Agency Agreement or Trust Agreement Prior to the Conversion Date, this Note and Advances and payments made hereunder shall be administered pursuant to the terms of the Fiscal Agency Agreement and are subject to such agreement. On or after the Conversion Date, this Note and Advances and payments made hereunder shall be administered pursuant to the Trust Agreement and are subject to such agreement. The terms and provisions of the Fiscal Agency Agreement or the Trust Agreement, insofar as they affect the rights, duties and obligations of the Holder and/or the Borrower, are hereby incorporated herein and form a part of this Note. The Borrower hereby agrees to be bound by all obligations of the Borrower to the Fiscal Agent set forth in the Fiscal Agency Agreement. Capitalized terms not defined in this Note shall have the meanings ascribed to them in the Fiscal Agency Agreement or Trust Agreement, as applicable. The Fiscal Agency Agreement provides for the Fiscal Agent to perform certain duties, including the duties of (i) paying agent and calculation agent for this Note until its Conversion Date, and (ii) registrar for this Note until this Note is canceled or a new registrar appointed, each in accordance with the Fiscal Agency Agreement. The Trust Agreement provides for the Trustee to perform certain duties, including the duties of collection agent for this Note after its Conversion Date until a new Trustee is appointed in accordance with the Trust Agreement. This Note may be surrendered to the Fiscal Agent for registration of transfer or exchange, as provided in the Fiscal Agency Agreement. The Fiscal Agent and Trustee each shall permit reasonable inspection to be made of a copy of the Fiscal Agency Agreement or Trust Agreement kept on file at its respective corporate trust office. Neither the Fiscal Agency Agreement nor the Trust Agreement shall change the Borrower's payment obligations under this Note. Resolution No. 04-28-22-8.5 Page 45 of 164 8 E. Applicability of Contract and Secretary's Guarantee This Note evidences indebtedness incurred pursuant to and in accordance with the Contract and pursuant to Section 108 of Title I of the Housing and Community Development Act of 1974, as amended (42 U.S.C. § 5308) (the "HCD Act"). This Note is subject to the terms and provisions of the Contract, to which Contract reference is hereby made for a statement of said terms and provisions and for a description of the collateral security for this Note. The payment of principal on the applicable Principal Due Dates and interest on the applicable Interim Payment Dates or Interest Due Dates under this Note is unconditionally guaranteed by the Secretary to the Holder through a guarantee (the "Guarantee"). Execution of the Secretary's Guarantee is required before this Note is effective, and such Guarantee shall be issued pursuant to and in accordance with the terms of the Contract and Section 108 of the HCD Act. F. Default A default under this Note shall occur upon failure by the Borrower to pay principal or interest on this Note when due hereunder. If a Borrower defaults on the payment of any interest or Principal Amounts when due, or if the Secretary gives notice of a final decision to declare the Borrower in default pursuant to the following paragraph of this Section IV.F, the Secretary may, but is not obligated to, make on any date on or prior to the Conversion Date with fourteen calendar days prior notice to the Fiscal Agent, or on the seventh Business Day preceding any Interest Due Date on or after the first permissible Optional Redemption date with seven Business Days prior notice to the Trustee, an acceleration payment to the Fiscal Agent or the Trustee, as applicable, equal to the unpaid Aggregate Principal Amount of the Note, together with accrued and unpaid interest thereon to such acceleration payment date or Interest Due Date, as applicable. In the event that any such acceleration payment is made from sources other than funds pledged by the Borrower as security under the Contract (or other Borrower funds), the amounts paid on behalf of the Borrower shall be deemed to be immediately due and payable to the Secretary. Nothing in this paragraph shall be construed as permitting or implying that the Borrower may, without the written consent of the Holder and the Secretary, modify, extend, alter or affect in any manner whatsoever the right of the Holder timely to receive any and all payments of principal and interest specified in this Note. In addition, the Secretary may declare the Borrower in default under this Note if the Secretary makes a final decision in accordance with the provisions of 24 C.F.R. § 570.913 (or any successor regulation thereof), including requirements for reasonable notice and opportunity for hearing, that the Borrower has failed to comply substantially with Title I of the HCD Act. Following the giving of such reasonable notice, the Secretary may take the remedial actions specified as available in the relevant provisions of the Contract pending the Secretary's final decision. G. Holder's Reliance on Guarantee Following a default by the Borrower under the terms of this Note, the Holder agrees to rely wholly and exclusively for repayment of this Note upon the Guarantee. The enforcement of any instruments or agreements securing or otherwise related to this Note shall be the sole responsibility Resolution No. 04-28-22-8.5 Page 46 of 164 9 of the Secretary, and the Holder shall not be responsible for the preparation, contents or administration of such instruments and agreements, or for any actions taken in connection with such instruments and agreement. The Holder, to the extent it is legally able to do so, shall bind or cause to be bound its successors and assigns to all limitations imposed upon the Holder by this Note. H. Amendment This Note may only be amended with the prior written consent of the Secretary and the Borrower. No such amendment shall reduce, without the prior written consent of the Holder of this Note, in any manner the amount of, or delay the timing of, payments required to be received on this Note by the Holder, Fiscal Agent or Trustee, including Guarantee Payments; provided that prior to the Conversion Date, the Commitment Amounts on the Commitment Schedule attached hereto, and the Principal Amounts due on the corresponding Principal Due Dates may be rescheduled pursuant to written instructions given to the Fiscal Agent by the Secretary based upon a written request by the Borrower absent the consent of the Holder. Notwithstanding the foregoing, Borrower agrees that Note may be amended without consent of the Borrower to establish a Subsequent Rate and a Subsequent Variable Interest Rate for purposes of determining the Applicable Rate, if the Secretary, in his or her sole discretion, determines that an Applicable Rate based upon the 3-Month T-Bill Rate no longer represents a reasonable rate, and the Secretary and Holder agree on a reasonable Subsequent Rate and Subsequent Variable Interest Rate. Any amendment establishing a Subsequent Rate and Subsequent Variable Interest Rate shall be appended to and become part of this Note as of the effective date of such amendment. Borrower shall be given 30 days-notice prior to the effective date of an amendment establishing a Subsequent Rate and Subsequent Variable Interest Rate. I. Waivers The Borrower hereby waives any requirement for presentment, protest or other demand or notice with respect to this Note. The Borrower hereby waives notice of default and opportunity for hearing for any failure to make a payment when due. J. Delivery and Effective Date This Note is deemed issued, executed, and delivered on behalf of the Borrower by its authorized official as an obligation guaranteed by the Secretary pursuant to Section 108 of the HCD Act, effective as of the date of the Secretary's Guarantee. V. Borrower-Specific Provisions [This space intentionally left blank] Resolution No. 04-28-22-8.5 Page 47 of 164 10 THE UNDERSIGNED, as an authorized official of the Borrower, has executed and delivered this Note. City of College Station, Texas BORROWER By: (Signature) (Name) (Title) Resolution No. 04-28-22-8.5 Page 48 of 164 11 ASSIGNMENT AND TRANSFER For value received, the undersigned assigns and transfers this Note to __________________________________________________________________________ (Name and Address of Assignee) __________________________________________________________________________ __________________________________________________________________________ (Social Security or Other Identifying Number of Assignee) and irrevocably appoints ______________________________________________________ attorney-in-fact to transfer it on the books kept for registration of the Note, with full power of substitution. Dated: _________________________ Note: The signature to this assignment must correspond with the name as written on the face of the Note without alteration or enlargement or other change. Signature Guaranteed: _______________________________ Qualified Financial Institution By: ___________________________ Authorized Signature [This page to be completed by the Fiscal Agent for transfer of the Note by the Holder as of the Conversion Date pursuant to the last paragraph of Section I.A. of this Note.] Resolution No. 04-28-22-8.5 Page 49 of 164 APPENDIX A Special Pre-Conversion Interest Rates. (a) The Holder and the Secretary contemplate that the majority of the outstanding Variable/Fixed Rate Notes will be purchased by underwriters selected by the Secretary for sale in public offerings to occur each year. If a public offering including this Note has not occurred by each March 1 following the initial Advance under this Note, the Secretary shall, upon request, advise the Holder as to when a public offering including this Note is expected to occur, and the Holder and the Secretary agree to consult with each other as to what the interest rate on this Note will be after May 1 of that year if a public offering has not occurred by such May 1. The Holder shall notify the Secretary if such consultation has not occurred by April 1 of that year. If no public offering including this Note has occurred on or before such May 1, the applicable interest rate on this Note from such May 1 shall be the rate (if any) negotiated and agreed upon by the Secretary and the Holder. Such rate may be the Standard Note Rate or some other rate agreed upon by the Holder and the Secretary at least two Business Days before such May 1 (such other rate, the "Negotiated Special Interest Rate"). The Secretary shall notify the Fiscal Agent and the Holder in writing of any Negotiated Special Interest Rate within two Business Days of the determination thereof. (b) If the Secretary and the Holder do not, by the April 15th preceding such May 1, negotiate and agree under Section (a) of this Appendix on an interest rate applicable to this Note, then the Holder may, on or before the April 20th preceding such May 1, give written notice to the Secretary of its intent to change the interest rate on this Note and, if such notice was given during such period, the Holder may, on such May 1, unilaterally determine (subject to the terms of this paragraph) the interest rate that this Note will bear (such rate, the "Holder Determined Interest Rate") from and including such May 1 to but excluding the earliest of: (i) the Conversion Date; (ii) the date that this Note is purchased by a new Holder (as described in Section (c) below) or (iii) a Monthly Special Reset Date (as defined below). Interest from and including such May 1 to but excluding the Public Offering Date shall be paid on the unpaid principal balance of all outstanding Advances under this Note at the rate(s) to be determined by the Holder which, based upon then prevailing market conditions and taking into account all the circumstances, will enable the Holder to sell this Note at one hundred percent (100%) of the aggregate amount of all Advances hereunder prior to the date of such sale. Such interest rate shall be determined as of such May 1 and shall be determined again on the foregoing basis on the first of each month thereafter (the first of each month after such May 1, a "Monthly Special Reset Date"). The Holder shall notify the Fiscal Agent and the Secretary in writing within two Business Days following such dates of the determination of the Holder Determined Interest Rate and each applicable interest rate determined on a Monthly Special Reset Date. Resolution No. 04-28-22-8.5 Page 50 of 164 2 (c) If the Secretary and the Holder have failed to agree upon an interest rate pursuant to Section (a) of this Appendix A, the Secretary, upon seven calendar days notice to the Holder, may arrange for the purchase of this Note in full by another entity on the following May 1 or any Business Day thereafter. If such a purchase occurs, the Holder shall sell and assign this Note to the purchaser thereof without recourse to the Holder and deliver this Note and its Guarantee to the Fiscal Agent for registration in the name of the purchaser thereof in accordance with the Secretary's written instructions. The purchase price for this Note shall be 100% of the aggregate amount of all Advances owing hereunder plus accrued interest to the date of purchase. Payment to the Holder of the purchase price for this Note shall be made by the purchaser thereof in Federal funds at the offices of the Holder, or at such other place as shall be agreed upon by the Holder and the Secretary, at 10:00 a.m., New York time, on the date of purchase. After such purchase date this Note shall bear a rate of interest negotiated between the Secretary and the new interim Holder (the "New Purchaser Special Interest Rate"). The Secretary shall notify the Fiscal Agent and the new purchaser in writing of any New Purchaser Special Interest Rate within two Business Days following the date of determination thereof. (d) Notwithstanding Sections (a) through (c) (inclusive) of this Appendix, no Borrower is obligated to pay interest at a variable rate exceeding the maximum rate permitted by generally applicable law of the Borrower's state (such rate, the "Maximum Rate"). If the Borrower receives notice of a variable interest payment that exceeds the Maximum Rate, then the Borrower shall timely pay such amount as does not exceed the Maximum Rate, and concurrently shall notify the Secretary and the Fiscal Agent of the reason for any interest non-payment. Resolution No. 04-28-22-8.5 Page 51 of 164 COMMITMENT SCHEDULE Note No. B-20-MC-48-0007 Principal Due Date Commitment Amount August 1, 2022 $104,000 August 1, 2023 107,000 August 1, 2024 110,000 August 1, 2025 114,000 August 1, 2026 117,000 August 1, 2027 121,000 August 1, 2028 125,000 August 1, 2029 128,000 August 1, 2030 132,000 August 1, 2031 136,000 August 1, 2032 140,000 August 1, 2033 145,000 August 1, 2034 149,000 August 1, 2035 154,000 August 1, 2036 158,000 August 1, 2037 163,000 August 1, 2038 168,000 August 1, 2039 173,000 August 1, 2040 179,000 August 1, 2041 185,000 Maximum Commitment Amount = $2,808,000 Resolution No. 04-28-22-8.5 Page 52 of 164 SCHEDULE P&I* Note No. B-20-MC-48-0007 Principal Amount Principal Due Date Interest Rate** Optional Redemption Available YES NO August 1, 2022 X August 1, 2023 X August 1, 2024 X August 1, 2025 X August 1, 2026 X August 1, 2027 X August 1, 2028 X August 1, 2029 X August 1, 2030 X August 1, 2031 X August 1, 2032 X August 1, 2033 X August 1, 2034 X August 1, 2035 X August 1, 2036 X August 1, 2037 X August 1, 2038 X August 1, 2039 X August 1, 2040 X August 1, 2041 X $ = Aggregate Principal Amount Principal Amounts due on or after August 1, 2032, may be redeemed, subject to the terms contained herein and in the Trust Agreement, on any Interest Due Date on or after August 1, 2031. *This schedule will not be completed when initially executed and delivered by the Borrower for Guarantee for interim, variable-rate financing. It will be completed when assigned by the Holder at the request of the Borrower for conversion to Fixed Rates on the Conversion Date. The first date shown above on which Optional Redemption is available is expected to be the same when this schedule is completed, if the Borrower participates in the initial Section 108 public offering after receiving an interim financing Advance hereunder. If the Borrower participates in a later public offering, the first date on which Optional Redemption is available is expected to be correspondingly later. ** The fixed rate applicable to each Principal Amount shall be listed by the Secretary. Resolution No. 04-28-22-8.5 Page 53 of 164 Page 1 of 36 Section 108 Loan Agreement - LULAC OAK HILL, INC. SECTION 108 LOAN AGREEMENT BETWEEN L.U.L.A.C. OAK HILL, INC. AND THE CITY OF COLLEGE STATION The parties to this Agreement (this "Agreement") are the CITY OF COLLEGE STATION, TEXAS, a home-rule city organized under the laws of the State of Texas ("City"), and L.U.L.A.C. OAK HILL, INC., a Texas non-profit corporation ("Owner" or "Borrower") as the case may be as indicated herein. Unless the context otherwise requires, the initial capitalized words shall have the meanings ascribed to them in "Definitions" following the main text of this Agreement if they are not otherwise defined in the main body of this Agreement. Owner and City hereby agree as follows: SECTION I BACKGROUND A. Owner requested from City, financial assistance with the rehabilitation of its property an apartment complex for low income elderly residents. As a result of the City's approval of Owner's proposal Owner has requested and this Agreement provides for a loan to be made from the City to the Owner to fund the cost for the construction and permanent financing of the rehabilitation of its property located at 1105 Anderson, College Station, Brazos County, Texas (“Project”). The funding for the loan will consist of a Section 108 loan in the maximum principal amount of TWO MILLION EIGHT HUNDRED EIGHT THOUSAND AND N0/100 DOLLARS ($2,808,000.00) ("Loan Amount" or "Loan") B. The Loan is being provided to the City pursuant to the Housing and Community Development Act of 1974, as amended, ("the Act") and 24 Code of Federal Regulations Part 570, Subpart M. Specifically, the Loan is provided pursuant to a contract for Loan Guarantee Assistance between City and HUD under Section 108 of the Act (“Section 108 Guarantee Loan Program”). C. Owner owns the property on which the Project is located, more particularly described in Exhibit A attached hereto and incorporated herein (the “Property”). D. The City's proposed use of its Section 108 loan proceeds for the Loan to Owner for the Project is an eligible rehabilitation activity in accordance with 24 CFR 570.703(h), pursuant to 24 CFR 570.202(a)(1), a privately owned building and improvements used for residential purposes. E. Owner's obligations to the City under this Agreement, including, but not limited to repayment of the Loan as evidenced by the Note, upon default under the Loan Documents (Note, Deed of Trust, Assignment and Security Agreement and Fixture Filing, together with the Financing Statements, collectively the “Loan Documents”), will be secured by, among other things, the Deed of Trust, Assignment, Security Agreement and Fixture Filing respectively, in favor of the City and other Loan Documents. In furtherance of the foregoing, Owner shall execute and deliver any instruments, documents and/or agreements necessary to create or perfect the security interests referenced hereunder. EXHIBIT CResolution No. 04-28-22-8.5 Page 54 of 164 Page 2 of 36 Section 108 Loan Agreement - LULAC OAK HILL, INC. F. Owner shall use the proceeds of the Loan for the rehabilitation of the residential dwelling units located at 1105 Anderson Dr, College Station, Brazos County, Texas. G. To secure the Loan and its other obligations hereunder, Owner will execute the Deed of Trust, Assignment, Security Agreements, and Fixture Filing and collaterally assign other Loan Documents in favor of the City covering the Project. After granting the first priority lien on the Project, until the City Loan is paid in full, Owner shall not sell, convey, transfer or further encumber the Property or any part thereof or any interest therein (whether legal, equitable, or beneficial), whether voluntarily, by gift, bequest, operation of law, merger, or in any other manner, as required by HUD and as stated in the Deed of Trust. H. The City is obligated to comply with certain requirements with respect to reporting to HUD about the use of its Section 108 loan proceeds for the construction of the Project and this Agreement contains provisions for the Owner to submit information to the Director on various aspects of the Project. Owner shall submit this information to the Director on the forms from time to time provided and required by the Director to be used by the Owner ("Monitoring Forms”). I. The Project Budget, the Scope of Work and the Construction Schedule are attached hereto in the Exhibits to this Agreement. J. Owner has submitted to the Director a signed Certificate regarding lobbying ("Lobbying Certificate") in the form set forth in the Appendices to this Agreement (or in the form in effect at the time the Lobbying Certificate was submitted to the Director). K. In addition to the provisions of the main text of this Agreement, this Agreement consists of "Appendices" and "Exhibits" as follows: 1. Exhibits (“Exhibits”), setting forth; A. Legal Description of the Property; B. Project Budget, including Construction Budget; C. Scope of Work: and D. Construction Schedule. 2. Appendices (“Appendices”), setting forth the specifics of requirements described in this Agreement or other City forms, policies requirements, which specifics and forms may be modified by the City from time to time or which may change as a result of change in or to Applicable Law, relating to: A. Applicable Law; B. Construction Contract Requirements; C. Lobbying Certificate; and D. Debarment Form. L. The recitals and statements contained in this Section One shall be incorporated into this Agreement, and Owner confirms, agrees and acknowledges that the information contained in this Section One is true and correct and, to the extent that any of the subsections contained in this Section One contain covenants or agreements of Owner, Owner hereby covenants and agrees to comply with the terms therewith. SECTION II Resolution No. 04-28-22-8.5 Page 55 of 164 Page 3 of 36 Section 108 Loan Agreement - LULAC OAK HILL, INC. REPRESENTATIONS AND WARRANTIES Owner hereby represents and warrants, and such representations and warranties shall be deemed to be continuing representations and warranties during the entire term of this Agreement, and for so long as the City shall have any commitment or obligation to make any disbursements of the City Funding hereunder, and so long as all of or any part of the City's Funding remains unpaid and outstanding under any Loan Documents, as follows: 2.1. Ownership of Property. Owner holds and will hold at the time of Closing fee simple title in and to the Property located in College Station, Brazos County, Texas, having an address of 1105 Anderson Drive, College Station, Brazos County, Texas, and more particularly described on Exhibit A. 2.2. Information Submitted is True and Correct. The information contained in or submitted in connection with Owner's application to, and in any communications with, the City for the City Funding, as amended by further information provided and disclosed to the City, is true and correct. 2.3. Taxes and Assessments. There are no delinquent taxes, assessments, or other impositions on the Property or Project, or if there are any delinquent taxes, assessments, or other impositions on the Property or Project, same will be paid prior to Closing. 2.4. Financial Capacity. 2.4.1. The financial representations made to the City by Owner concerning Owner's financial condition are true and correct and, upon the Closing of the City Funding, Owner has the financial capacity to carry out its obligations under this Agreement and the Loan Documents. If any material negative change in either Owner's financial condition occurs, Owner shall report such change to the City within five (5) business days. 2.4.2. The Owner is in good standing on all outstanding loans and loan commitments with no defaults or negative collection actions on any current or previous loans that City reasonably determines would adversely impact the ability of Owner to perform hereunder. Neither Owner is in default with respect to any order, writ, injunction, decree or demand of any court or other Governmental Authority, in the payment of any Indebtedness of borrowed money or under any agreement or other papers evidencing or securing any such debt. 2.4.3. Owner has filed all tax returns required to be filed and paid all taxes shown thereon to be due, including interest and penalties, except for taxes which are being diligently contested in good faith and for payment of which adequate reserves have been set aside. 2.5. Authority. All action on the part of Owner necessary to authorize the transactions contemplated by this Agreement has been taken, and upon execution of this Agreement, this Agreement shall constitute the binding and enforceable obligation of Owner. 2.6. Liens. As of the Closing Date, there are no existing or threatened liens against the Land or Project, and the Owner do not know of any reason such liens may be filed or threatened against the Property or Project. As of the Closing Date, all payables and liabilities to parties Resolution No. 04-28-22-8.5 Page 56 of 164 Page 4 of 36 Section 108 Loan Agreement - LULAC OAK HILL, INC. providing goods or services to Owner have been paid and no payables or liabilities exist that are more than thirty (30) days outstanding. If a mechanic's lien claim is filed against the Property or Project at any time prior to the end of the Restricted Use Period, Owner shall promptly notify the City and shall have it promptly discharged or bonded-around so that the lien no longer impairs the Project. 2.7. Project Budget. The Project Budget specifies a listing of all costs necessary to complete the Project. 2.8. Expertise. Owner has engaged or will engage competent persons and firms for constructing, leasing and managing the Project. 2.9. Legal Existence. Owner is a non-profit corporation, duly created and validly existing and in good standing under the laws of the State of Texas. 2.10. Plans, Specifications, Permits, and Utilities. The Plans and Specifications are, or upon delivery to City will be, complete and adequate for the Work. To Owner's knowledge, the Plans and Specifications comply, or when delivered to City will comply, and the Work, when completed in accordance with the Plans and Specifications will comply, with all applicable restrictive covenants, zoning ordinances and building codes, the Americans with Disabilities Act and all other applicable Legal Requirements. All necessary permits, approvals or consents necessary for the Work have been obtained or will be obtained prior to the delivery of any Request for Draw for such Work and are or will be at all times thereafter in full force and effect. All utility service, in sufficient size and capacity, necessary for the operation of the Project and, where applicable, the construction of the Project is (or, where applicable, will be when called for in the Plans and Specifications) available at the boundaries of the Project, including water supply, storm and sanitary sewer facilities, gas, electric, cable television, telephone, and internet facilities. 2.11. Cost of Work. The Project Budget reflects all costs of all labor and materials required complete the Work, together with all related costs and expenses. Owner is required to provide in writing to the City with a minimum of thirty (30) days if and when the cost of the remaining Work shall exceed or appear likely to exceed the amount of unadvanced proceeds of the City Funding available under the Project Budget and Work Write-Up to pay the cost of the Work, either in the aggregate or with respect to any particular item in the Project Budget or Work Write- Up, and shall give City sufficiently detailed information with respect thereto. If the City determines at any time that the unadvanced proceeds of the City's Funding for the costs of the Work will be insufficient to pay for completion of the Work, Owner shall provide evidence to City that Owner has the financial ability to fund that amount, when and if due to complete the Work. 2.12. Commencement of Construction; Prosecution of Construction. Owner will commence the Work on or before the Commencement Date, and will prosecute construction of the Project in accordance with the Plans and Specifications, all applicable Legal Requirements, this Agreement and other Loan Documents and with diligence and dispatch and without cessation of work thereon for a period in excess of twenty (20) Business Days, except for delays due to strikes, riots, acts of God, war, unavailability of labor or materials, unusually inclement weather, fire or other causes outside the control of Owner. Owner will cause the Project to be executed and Resolution No. 04-28-22-8.5 Page 57 of 164 Page 5 of 36 Section 108 Loan Agreement - LULAC OAK HILL, INC. completed in accordance with the Plans and Specifications and all applicable Legal Requirements, free and clear of all liens (other than those in favor of City), with Evidence of Completion delivered to City with respect to all the Work on or before the Completion Date. 2.13. Regulation U. None of the proceeds of the Loan will be used for purchasing or carrying, directly or indirectly, any margin stock or for any other purpose which would make such Loan a "purpose credit" within the meaning of Regulation U of the Board of Governors of the Federal Reserve System. SECTION III CONDITIONS PRECEDENT FOR CITY CLOSING AND FUNDING All the conditions listed in this Section must be satisfied by the date of Closing of the City's Funding and the satisfaction of each of such conditions shall be a condition precedent to closing of the Loan: 3.1. Execution and Approval of Architects Contract. The Owner and the Architect (if any) shall have executed the Architect's Contract which shall have been approved by the Director; the Architect's Contract will be collaterally assigned to the City as additional security for the repayment and performance of the Loan pursuant to an "Assignment of Architect's Contract, Plans and Specifications, and Consent" instrument in the form set forth in the Attachments ("Assignment of Architect's Contract, Plans and Specifications, and Consent"). 3.2. Approval of Plans, Specifications, and Drawings. The City shall have approved the scope of the Work, any site plans, floor plans, wall sections, architectural, structural, civil, HVAC, mechanical, electrical, plumbing, accessibility requirements (which also must be approved by an accessibility expert), construction and landscaping plans, and any other applicable drawings (collectively, the "Plans and Specifications") required for the construction of the Project according to the Approved Construction Contract, which must be in detail great enough to provide a sound basis for the City to effectively monitor the compliance of the construction with the Plans and Specifications. The Plans and Specifications will also be collaterally assigned to the City as additional security for the repayment and performance of the Loan pursuant to the Assignment of Architect's Contract, Plans, Specifications, and Consent. The Scope of Work to be reflected by the Plans and Specifications shall not vary from the Scope of Work attached hereto as Exhibit C unless such variance is approved in writing by the Director. 3.3. Approval of Construction Schedule and Drawdown Schedule. The Director shall have approved the construction schedule and drawdown schedule for the Project (collectively referred to as the "Approved Final Construction Schedule") which Approved Final Construction Schedule shall not vary from the Construction Schedule attached hereto as Exhibit D unless such variance is approved by the Director in writing. 3.4. Budgets. 3.4.1. Approved Final Operating Budget. Prior to Closing, the Director shall have approved a detailed operating budget ("Approved Final Operating Budget") for the Project; the Approved Final Operating Budget shall include a cash flow projection of all Project related Resolution No. 04-28-22-8.5 Page 58 of 164 Page 6 of 36 Section 108 Loan Agreement - LULAC OAK HILL, INC. income, expenses, debt service on all debt encumbering the Project, reserves for replacements of capital items, and any other costs associated with the operation of the Project. An updated operating budget including a cash flow projection shall be submitted for the Director's approval on an annual basis thereafter for each subsequent year (unless required on a more frequent basis by the Director) in a form as the Director may require 3.4.2. Approved Final Construction Budget. The Director shall have approved a detailed budget final Construction Budget which shall include all costs to construct the Work and any other construction costs for the Project ("Approved Final Construction Budget"), and all other costs necessary to complete the Project per the Plans and Specification and Approved Construction Contract, which approved Final Construction Budget shall not vary from the Construction Budget included in Exhibit B, unless such variance is approved in writing by the Director. The Approved Final Construction Budget shall be in such forms as the Director may require, and shall be in sufficient detail to permit the City to effectively and adequately monitor the use of the Loan proceeds for the payment of costs pursuant to the Approved Final Construction Schedule to ensure that Loan proceeds are expended only for costs eligible under applicable HUD regulations including but not limited to 24 CFR Part 570, if applicable, those regulations listed in Appendix A and other cross cutting federal regulations. Subsequent to the Closing, any changes to the Approved Final Construction Budget must be approved in writing by the Director. If required by the City, the Owner, at its own expense, shall engage appropriate third party inspectors acceptable to the Director, in his or her sole discretion, or alternatively, the City, at its own expense, may utilize its own internal or external inspectors (collectively, "Approved Inspectors") to verify the budgets submitted to the Director for approval under this Section, to report to the Director on the adequacy and reasonableness of the amounts set forth in such budgets to complete the Project and the Work according to the Plans, Specifications and Drawings and to verify that all draws under the Approved Final Construction Budget conform with such budget, that all labor and material for which disbursement is requested have gone into the Project in accordance with the Plans, Specifications and Drawings and that the remaining undisbursed portion of the Loan are adequate to complete the Work and the Project. The agreement with any Approved Inspectors shall provide that the City is entitled to rely on the Approved Inspector's Reports and that the reports shall be addressed to the City. 3.5. Construction Contract and Related Matters. 3.5.1. Approved Construction Contract. Owner and Contractor shall have executed the Construction Contract approved by the Director ("Approved Construction Contract"), which Approved Construction Contract will be collaterally assigned to the City as additional security for the City Funding pursuant to an "Assignment of Construction Contract" instrument in the form set forth in the Attachments ("Assignment of Construction Contract"). The Approved Construction Contract shall be for a stipulated sum. 3.5.2. Bonds. Owner shall furnish or cause Contractor to furnish (a) a performance bond, with dual obligee rider naming the City as an additional beneficiary, for the full amount (100 percent) of the construction or rehabilitation price ("Performance Bond"); (b) a maintenance bond to secure the Defects Warranty ("Maintenance Bond"); and (c) a statutory payment bond Resolution No. 04-28-22-8.5 Page 59 of 164 Page 7 of 36 Section 108 Loan Agreement - LULAC OAK HILL, INC. ("Payment Bond") for 100 percent of the contract price. The surety upon any required bond must be on the current list, published by the United States Treasury Department, of acceptable sureties for federal bonds. The form of the Performance Bond, Maintenance Bond, and Payment Bond shall be as set forth in the Attachments or in other forms approved by the City. 3.5.3. Defects Warranty. Owner shall expressly and unconditionally agree to warrant and guarantee ("Defects Warranty") for a period of one (1) year all work performed, or materials supplied to be free of defects, omissions, unsoundness or flaws, by executing the Maintenance Bond in the form set forth in the Attachments or in other form approved by the Director. The one (1) year period shall commence on the date of issuance of the last Certificate of Occupancy. The Defects Warranty shall include any condition which may impair or tend to impair the safe and normal use, functioning or enjoyment of the Project and which results in any manner from all labor and/or materials used or supplied under the Approved Construction Contract whether the materials or equipment are guaranteed by the manufacturer or supplier. The Defects Warranty shall not be construed to limit or in any way modify any warranties or guarantees placed upon any materials, appliances, fixtures or devices by their manufacturers, or any components for which a longer period of warranty is required in the Approved Construction Contract. The Maintenance Bond shall provide that the Owner shall obtain all manufacturers' and suppliers' written guarantees, warranties and operating instructions covering materials and equipment furnished under the Approved Construction Contract together with any documentation required for validation of such guarantees and warranties. 3.6. Lobbying. On or before the Closing of the Loan, Owner and Contractor shall each submit to the Director a signed Certificate regarding lobbying in the form set forth in the Attachments (or in the form in effect at the time the Certificate is required to be submitted to the Director). 3.7. Appraisal. The Owner shall obtain an appraisal of the value of the fee interest in the Property, which shall specify an estimate of the "as completed" fair market value of not less than 125 percent (125%) of the principal balance of the Section 108 Note plus 125% of any outstanding balance on other indebtedness secured by a mortgage lien of senior or equal priority on the Property, if agreed to by the Secretary. The appraisal shall meet the definition of an appraisal under the URA at 49 CFR § 24.2(a) (3), which shall be done in accordance with the requirements of the URA at 49 CFR § 24.103. The appraisal shall be acceptable to the Director and shall be prepared by a qualified appraiser approved by the City who is certified by the State of Texas and has a professional designation (such as "SRA" or "MAI"). The appraisal shall conform to the standards of the Financial Institutions Reform, Recovery and Enforcement Act of 1989 ("FIRRERA"). 3.8. Survey. The Director shall have approved a current survey ("Survey") of the Property complying with the "Survey Requirements" ("Survey Requirements") in the Appendices and showing, among other things detailed in the Survey Requirements, that none of the improvements located within the Project are within an identified (shaded) special flood hazard area (including without limitation, the 100-year flood hazard area). The survey shall be certified Resolution No. 04-28-22-8.5 Page 60 of 164 Page 8 of 36 Section 108 Loan Agreement - LULAC OAK HILL, INC. with a legal description conforming to the title policy and the Deed of Trust, Assignment, Security Agreement, and Fixture Filing. 3.9. Title Commitments; Title Insurance. The Title Company shall issue at Owner's expense, in substance approved by the Director, a Commitment to issue to the City a Loan (Mortgagee's) Policy of Title Insurance ("City's Loan Title Policy") in a form acceptable to the Secretary naming the City as Insured, including in the definition of Insured each successor in ownership of the indebtedness secured by the Deed of Trust, Assignment, Security Agreement and Fixture Filing or to be accompanied by an endorsement of the policy to the Secretary and insuring the first lien priority of the lien securing the City's Loan, subject only to (1) the City’s Restrictive Covenants; and (2) Schedule B Exceptions approved by the Director, in their reasonable discretion. 3.9.1. Arbitration Deleted. The arbitration provisions of the Loan Policy shall be endorsed as deleted. 3.9.2. Insured Closing Service Letter. The Title Insurer shall have issued the City an "insured closing service letter" relating to the closing of the Loan and such insured closing service letter shall be in effect as of the time of the closing of the Loan. 3.10. Environmental. Owner shall have executed and delivered an "Environmental Indemnity Agreement" in favor of the City (the "Environmental Indemnity Agreement") in the form set forth in the Attachments or on another form approved by the City. SECTION IV CLOSING In addition to all the conditions listed in Section III being satisfied as conditions precedent to closing of the Loan, the City shall not be obligated to close the Loan unless the following requirements are satisfied: 4.1. Delivery and Execution of Documents. Owner must, concurrently with Closing of the City's Funding, execute, or cause to be executed as applicable, and deliver to the City, together with any other documents, certificates, affidavits, policies and other deliverables required hereunder or under any of the Appendices hereto or otherwise reasonably required by the City including, but not limited to, the following: 1. Note; 2. Deed of Trust; 3. Financing Statements; 4. Assignment of Construction Contract; 5. Assignment of Architect’s Contract; 6. This Agreement; 7. Environmental Indemnity Agreement; 8. Certification Regarding Lobbying; 9. Certification Regarding Debarment; Resolution No. 04-28-22-8.5 Page 61 of 164 Page 9 of 36 Section 108 Loan Agreement - LULAC OAK HILL, INC. 10. A copy of the fully executed Construction Contract; 11. A copy of the fully executed Architects Contract; 12. A copy of the Plans and Specifications; 13. A copy of the Construction Schedule; 14. A copy of the Operating Budget, including rent roll or proforma projection; 15. A copy of the Construction Budget; 16. A copy of the Appraisal; 17. A copy of the Survey; 18. Certificates or policies of Owner’s insurance required by this Agreement or by the Deed of Trust; 19. Payment, Performance, and Maintenance Bonds; 20. City’s Loan Title Policy, or a Commitment to issue the same, dated as of the Closing Date, and the Insured Closing Letter; 21. Resolutions of Owner authorizing the Loan or other evidence satisfactory to the Director that Owner has the authority to enter into the transactions contemplated by this Agreement in a form acceptable to the City; 22. A legal opinion of Owner’s counsel addressing, without limitation the authority of the parties signing this agreement and the closing documents on behalf of the Owner and the Guarantor and as to the enforceability of such documents in a form acceptable to the City Attorney. The opinion, on the Owner's counsel's letterhead, addressed and satisfactory to the Secretary, shall state that (a) the Owner is duly organized and validly existing as a nonprofit corporation under the laws of the State of Texas, is existing and in good standing in and under the laws of the State of Texas; (b) the Note has been duly executed by a party authorized by the Owner to take such action and is a valid and binding obligation of the Owner, enforceable in accordance with its terms, except as limited by bankruptcy and similar laws affecting creditors generally; (c) the Agreement and the Deed of Trust, Assignment, Security Agreement, and Fixture Filing, Financing Statement, are valid and legally binding obligations, enforceable in accordance with their respective terms; and 23. Such other information and documentation which may be required by the Director to evidence Owner’s satisfaction of the conditions required by the City to close the Loan. 4.2. Waiver of Conditions; Additional Conditions. The Director may, by written instrument, waive any of the conditions or requirements set forth in this Agreement as a condition precedent to or a requirement of Closing of the Loan, provided that waiver of any condition or requirement shall not operate as a waiver of the City's right to enforce any other condition or requirement set forth in this Agreement. In addition, the written consent of the City Attorney shall be required for the waiver of any legal requirement of the Loan Documents. The Director may impose such additional conditions to, or requirements of, closing of the Loan as are necessary under the circumstances or are otherwise customary in connection with construction financing Resolution No. 04-28-22-8.5 Page 62 of 164 Page 10 of 36 Section 108 Loan Agreement - LULAC OAK HILL, INC. pursuant to the Act, specifically under Section 108 Loan Guaranty Program, CDBG programs, or other Federal guidelines or regulations. 4.3. Escrow of Loan Proceeds. At the sole discretion of the City, all or part of the Loan Proceeds may be disbursed to a title company or mortgage servicer approved by the Director, to be held in escrow for subsequent disbursement to Owner or for return to the City pursuant to the terms and conditions of this Agreement. Notwithstanding the foregoing, it is the understanding of the Owner and City that the City does not expect to fund its obligations hereunder through an escrow held by a title company or mortgage servicer. 4.4. Closing of Loan at Title Company. The closing of the Loan shall occur at a title company approved by the Director and the Secretary ("Title Company"). The Director reserves the right to require a representative of the Owner with authority to execute the Loan Documents will personally attend Closing at the office of the Title Company in College Station, Texas. 4.5. Closing Deadline. Notwithstanding anything contained in this Agreement to the contrary, Owner shall cause all conditions precedent to Closing to be satisfied on or before twelve (12) months from the date hereof (the "Outside Closing Date"). Unless Closing occurs on or before the Outside Closing Date (unless the Director, in their sole and absolute discretion, consents to an extension of the Outside Closing Date), the Director may, without providing prior notice, terminate this Agreement by written notice to Owner in which event the City's obligations hereunder shall automatically cease and be of no further effect. Notwithstanding the foregoing, if Closing does not occur within twelve (12) months from the date hereof, this Agreement will automatically terminate and be of no force and effect. SECTION V FUNDING LIMITATIONS 5.1. Dependency on Federal Funding. Owner understands that the availability of funding for the Loan is dependent upon federal funding. Unless and until the City receives adequate funds from HUD, the City shall have no obligation to Owner under this Agreement. 5.2. No Liability for Interruption of Funding. If HUD or other applicable governmental agency (for whatever reason) instructs the City to cease funding the Loan, the City may do so without obligation to Owner without being liable to Owner for any damages Owner may incur because of such cessation in funding. The City shall give Owner written notice of such instructions promptly upon receiving such instruction from HUD, at which time, all the City's obligations under this Agreement or any of the Loan Documents shall cease. In furtherance of the foregoing, if the City provides Owner with notice of interruption as contemplated in this Section V, Owner shall execute any releases or other documents or agreements that the City determines necessary to enable the City to reallocate all or a portion of funds that are available pursuant to this Agreement. 5.3. Environmental Clearance and Release of Funds. Notwithstanding any provision of this Agreement, the parties hereto agree and acknowledge that this Agreement does not constitute the City's commitment of funds or site approval, and that such commitment of funds and site approval may occur only upon satisfactory completion of environmental review and receipt by the Resolution No. 04-28-22-8.5 Page 63 of 164 Page 11 of 36 Section 108 Loan Agreement - LULAC OAK HILL, INC. City of a written "release of funds" authorization from HUD under 24 CFR Part 58. The parties further agree that if the City is to provide any funds to the Owner in connection with the Project, such disbursement is conditioned on the City's determination to proceed with, modify, or cancel the Loan based on the results of a subsequent environmental review of the Property and the improvements thereon. 5.4. City Council Approval. This Agreement is subject to the approval of the City Council of the City of College Station. SECTION VI OWNER’S COVENANTS Owner agrees as follows: 6.1. Use of Proceeds; Order of Funding and Disbursement; Reimbursement of Funds. 6.1.1. Use of Proceeds. Owner shall use the proceeds of the Loan only for items included in the Approved Final Construction Budget. Further, proceeds of the Loan shall only be used for hard costs or allowable soft costs, and Work performed that is eligible for payment under the Loan and other regulations applicable to the Loan. 6.1.2. Order of Funding and Disbursement. The proceeds of the City Funding shall be disbursed as set forth below: 6.1.2.1. Advances By the City. All advances of Loan Proceeds shall be made as follows: 6.1.2.1.1. Initial Disbursement. After Closing and upon satisfaction of all conditions precedent to the City’s obligation to fund such advance as set forth in the Loan Documents, the City shall disburse up to the total sum requested in the manner set forth in the Loan Documents. 6.1.2.1.2. Subsequent Disbursements. Upon receipt by the City of subsequent Disbursement Requests and satisfaction of all conditions precedent to the City's obligation to fund such advance as set forth in the Loan Documents, the City shall fund such amounts in the manner set forth in the Loan Documents. 6.1.2.1.3. Project Completion. Upon completion of the construction of the Project, and upon satisfaction of all conditions precedent to the City's obligation to fund such advance as set forth in the Loan Documents, the City will disburse up to the lesser of (i) the remainder of the Loan or, (ii) the amount requested in the manner set forth in the Loan Documents. 6.1.2.1.4. Disbursements Not to Exceed. In no event shall the City be obligated to fund more than the Loan Amount. Resolution No. 04-28-22-8.5 Page 64 of 164 Page 12 of 36 Section 108 Loan Agreement - LULAC OAK HILL, INC. 6.1.2.2. Compliance with Loan Documents. Owner represents and warrants to City, that, as of the date of any request for disbursement, that neither Owner nor the Project is in breach, violation, or default under any of the Loan Documents. 6.1.3. Reimbursement to City. Owner agrees that it will reimburse the City in a sum equivalent to the amount of disallowed expenditures in the event that HUD or other applicable state or federal agency, through audit exception or other action, determines that Owner's expenditure of funds loaned to it under this Agreement for the Project was not made in compliance with this Agreement (including without limitation, for the purposes set forth in Section Six, Paragraph 6.1.1 hereof) or Applicable Law. Notwithstanding anything to the contrary, this provision shall survive the end of the term of this Agreement. 6.2. Construction Matters. 6.2.1. Commencement and Completion of Work; Change Orders. No Work shall commence on the Project prior to the Closing of the Loan. Owner shall begin the Work no later than sixty (60) days of the date of this Agreement, but the City shall have no obligation to fund any portion of the Loan until the issuance of all City authorizations and required permits, including without limitation the Notice to Proceed to be issued by the City. Owner shall complete the Work in accordance with the Approved Final Construction Schedule but in no case later than ________________ (____) months after Closing, subject to force majeure not to exceed 60 days, time being of the essence (the "Approved Construction Period"). Any changes to the Approved Final Construction Schedule, Approved Construction Contract, Approved Construction Period, or the Approved Plans, Specifications, and Drawings must be approved by the City. The foregoing provisions shall not prevent Owner from making non-structural, finish type changes to the approved Plans, Specifications, and Drawings or to the Approved Construction Contract without consent of the Director; provided such changes do not increase the Approved Final Construction Budget, and do not cost in the aggregate more than $50,000 with a single change costing no more than $15,000.00 each as documented by appropriate change orders. 6.2.2. Subject to waiver by the Director, Owner shall not be entitled to receive any disbursements of the City Funding after the expiration of the Approved Construction Period 6.2.3. Good and Workmanlike Manner; Engagement of Experts. Owner shall perform or cause to be performed, the Work in a good and workmanlike manner and in strict accordance with the Approved Plans, Specifications and Drawings, the Approved Final Construction Schedule, the Approved Final Construction Budget and the Approved Construction Contract. Owner shall engage or employ competent persons and firms for constructing, leasing, and managing the Project. 6.2.4. Compliance with Approved Construction Contract. Owner shall fully and timely perform its obligations under the Approved Construction Contract. 6.2.5. Written Agreements with Subcontractors. Owner shall cause Contractor to enter into written agreements with each Subcontractor who does work on or delivers materials to the Project. These subcontracts, upon request by Director, shall be subject to review and approval by Resolution No. 04-28-22-8.5 Page 65 of 164 Page 13 of 36 Section 108 Loan Agreement - LULAC OAK HILL, INC. the Director; to the extent that the Director requires, subcontractors shall be required to execute assignment and subordination of liens in favor of the City. 6.2.6. Construction and Supply Contract Requirements. The Approved Construction Contract and any other written agreements with contractors, subcontractors, or suppliers (collectively, for "Construction and Supply Contracts") shall meet the requirements set forth in the Appendices attached hereto under the title "Construction Contract Requirements" (collectively, the "Construction and Supply Contract Requirements") (if the Owner acts as the "contractor" of the Work) and shall comply with the Construction and Supply Contract Requirements. Each Construction and Supply Contract must comply with the federal labor standards provisions of the Davis-Bacon Act, as amended (40 U.S.C. §§ 276a, et seq.); compliance with the Davis-Bacon Act may be verified through on-site inspections by representatives of the City or at the City's option, the Approved Inspectors. In addition, each Construction and Supply Contract must require compliance with Department of Labor regulations at 29 CFR Parts 1, 3, 5, 6 and 7. 6.2.7. Owner’s Insurance Requirements. Until such time as construction is complete and the Certificate of Completion is issued to Owner, Owner shall cause its Contractor to maintain insurance with waiver of subrogation against the City, its predecessors, successors, assigns, legal representatives, and its former, present and future agents, employees and officers (the foregoing are collectively referred to herein as "City") and, except with respect to workmen's compensation, shall name the City as an additional insured party. Notwithstanding the foregoing, during any period of time when construction is ongoing, Owner shall cause builder's risk insurance to be maintained by Contractor for those buildings at the Project undergoing construction in coverage amounts not less than the total respective amount of funds that will be allocated to pay for the cost of the Work contemplated by this Agreement. 6.2.8. Debarment. No contractor or subcontractor shall be employed who is debarred or suspended by the City, HUD or any other federal, state or local governmental program. The Debarment form included in the Appendices (or the Debarment form in effect at the time the form is required to be submitted to the Director) shall be furnished to the Director on or before the execution of this Agreement. 6.3. Inspections; Corrective Actions. 6.3.1. During construction, the Work shall be subject to inspection by the City, HUD or at the City's option, any Approved Inspectors. Until Project Completion, in connection with every requested draw on the City Funds, Owner shall provide the Director, at Owner's expense, with an inspection report in form and substance acceptable to Director from the Approved Inspectors. 6.3.2. Owner shall promptly make any corrections or modifications to the Work as requested by the Director to cause the Work to comply with the terms of this Agreement, the inspection reports from the Approved Inspectors, the Approved Plans and Drawings, the Approved Final Construction Schedule, and any applicable HUD requirements. 6.3.3. After the Certificate of Completion is issued and throughout the entirety of the Term of the City Funds, the City and/or HUD shall have the right to inspect or have the Project Resolution No. 04-28-22-8.5 Page 66 of 164 Page 14 of 36 Section 108 Loan Agreement - LULAC OAK HILL, INC. inspected by Approved Inspectors to ensure compliance with Applicable Law, this Agreement, and the Loan Documents. 6.3.4. With respect to all of the City's and HUD's inspection rights (1) the City, HUD, Approved Inspectors and the City's authorized agents and independent contractors, and others acting on its behalf, shall have access to the Project at reasonable times for purpose of monthly inspections; (2) each new or renewal lease of a unit or suite within the Project shall include a clause that permits the City's Approved Inspectors and HUD access to inspect such unit or suite at reasonable times (except in an emergency, when the inspection may be at any time); (3) neither the City nor HUD shall incur any liability to Owner, or any tenants as a result of such inspections; (4) the City does not guarantee the Work of the Contractor or any Subcontractor and the City shall not be liable in the event of the Contractor's or any Subcontractors' default, or for any damages caused by the Contractor, any Subcontractors, or their employees or agents. 6.3.5. It is expressly understood and agreed that City is under no duty to supervise or to inspect the work of construction, and that any such inspection by or on behalf of City is for the sole purpose of protecting the interests of City with respect to the Project. Failure to inspect the work or any part thereof shall not constitute a waiver of any of City's rights hereunder. Inspection not followed by notice of Default shall not constitute a waiver of any Default then existing; nor shall it constitute an acknowledgment that there has been or will be compliance with the Plans and Specifications, or applicable Legal Requirements or that the construction is free from defective materials or workmanship. It is further understood and agreed that any consents or approvals of City hereunder are for the sole purpose of protecting the interests of City under the Loan Documents and Owner shall have no right to rely on such approvals for Owner's purposes. 6.4. Compliance with Property Standards. The Work applicable to the improvements shall, at a minimum, be in compliance with all applicable local codes, construction standards, ordinances, and zoning ordinances (including without limitation, the City's Building, and Fire Codes). Owner shall, throughout the term of the City Funding, maintain the Project in good condition and repair, ordinary wear and tear excepted, and in accordance with the standards described in the preceding sentence. Owner shall have such time period as may be set forth in such standards (or if no time period is set forth therein, a reasonable period of time) in which to make any necessary repairs to the Project. City shall have the right to inspect the Project from time to time to insure compliance with such requirements, and may require Owner to make any necessary repairs to comply with such requirements in a reasonable period of time; provided, however, any repairs to correct a dangerous condition or imminent hazard shall be commenced immediately upon notice of such dangerous condition or imminent hazard and prosecuted diligently to completion. 6.5. Maintenance of Records; Financial and Operating Reports; Monitoring. 6.5.1. Owner shall maintain books of record and account in accordance with Good Accounting Practice in which full, true and correct entries shall be made of all its Property, dealings and business affairs. In addition, Owner shall maintain such records and make such reports as may from time to time be reasonably requested by Resolution No. 04-28-22-8.5 Page 67 of 164 Page 15 of 36 Section 108 Loan Agreement - LULAC OAK HILL, INC. the Director to document compliance with all applicable Legal Requirements, including applicable HUD requirements, and the requirements of this Agreement. 6.5.2. Owner shall provide to the Director: (a) annual calendar year-end property operating statements not later than 45 days after the end of the calendar year; (b) current rent rolls (or occupancy reports) not later than the 10th day following the end of each calendar quarter (or upon a more frequent basis if requested by the Director) which contain at a minimum the following information (or other information as the Director may from time to time require) which correctly reflects for each leased unit: the unit or suite number, the tenant name, the effective lease date, the monthly rent; and (c) an annual audited financial statement for Owner within 180 days following the close of their respective fiscal year. Notwithstanding anything to the contrary, if Director requires, Owner shall provide such reports at more frequent intervals. 6.5.3. Owner shall accurately complete and provide the Director the Monitoring Forms or other forms from time to time established for use by the Director for monitoring purposes of the Funding Proceeds or to document Owner's compliance with the requirements of this Agreement. 6.5.4. The City shall have access to, and entitled to copies, of all information, including reports and data, prepared or assembled by Owner for purposes of meeting Applicable Law and contractual requirements under this Agreement. 6.5.5. Owner shall, upon the request of the Director, make available to the City at the location of the Project (or at another location in Brazos County, Texas) all records, reports and other information and data maintained by Owner relating to the Project, and shall cooperate with the City in connection with the City's review of such records and monitoring of the Project. 6.5.6. Owner shall maintain all records and other information regarding the Project for a period of not less than five (5) years after expiration of the Restricted Use Period unless a longer period is required under 24 CFR § 570.502. The information furnished to the City will be used to meet HUD's reporting requirements, measure the progress of the Project evaluate its impact and exercise general monitoring of the Project, as may be applicable. 6.5.7. Financial Information. Owner shall furnish or cause to be furnished to City with copies of each of the following: 6.5.7.1. As soon as available and in any event within ninety (90) days after the close of each fiscal quarter of Owner, the unaudited consolidated and consolidating balance sheets of Owner as of the end of such quarter year including contingent liabilities, the unaudited consolidated and consolidating statements of profit and loss of Owner for such quarter, and a cash flow statement of Owner for such quarter, together with a projection of cash flow for the next fiscal quarter of Owner, setting forth in each case in comparative form the corresponding figures Resolution No. 04-28-22-8.5 Page 68 of 164 Page 16 of 36 Section 108 Loan Agreement - LULAC OAK HILL, INC. for the preceding fiscal quarter, prepared in accordance with, and certified by an appropriate officer or other responsible party acceptable to City to have been prepared in accordance with, Good Accounting Practice as of the date or dates and for the period or periods stated; 6.5.7.2. As soon as available and in any event within one-hundred eighty (180) days after the close of each fiscal year of Owner, the audited (by independent accountants), if requested by City, consolidated and consolidating balance sheets of Owner as of the end of such fiscal year including contingent liabilities, the audited (by independent accountants), if requested by City, consolidated and consolidating statements of profit and loss of Owner for such year, and a cash flow statement of Owner for such year, together with a projection of cash flow for the next fiscal year of Owner, setting forth in each case in comparative form the corresponding figures for the preceding fiscal year, prepared in accordance with, and certified by an appropriate officer or other responsible party acceptable to City to have been prepared in accordance with, Good Accounting Practice as of the date or dates and for the period or periods stated; 6.5.7.3. Promptly upon receipt thereof, one (1) copy of each written report submitted to and pertaining to Owner by independent accountants in any annual, quarterly or special audit made, if any; it being understood and agreed that all audit reports which are furnished to City pursuant to this provision shall be treated as confidential, but nothing herein contained shall limit or impair City's right to disclose such reports to any appropriate Governmental Authority or to use such information to the extent pertinent to an evaluation of any matter relating to the Loan Documents or to enforce compliance with the terms and conditions of any of the Loan Documents or to take any lawful action which City deems necessary to protect its interests under any of the Loan Documents; 6.5.7.4. Contemporaneously with the furnishing of each of the financial statements referred to above, a certificate of an appropriate officer or other responsible party of Owner acceptable to City stating that the signer has reviewed the terms of the Loan Documents, has set forth in or attached to such certificate such reasonable detail of such computations as is necessary to establish compliance with the covenants contained in the Loan Documents and has made, or caused to be made under his supervision, a review of the transactions and condition of Owner during the accounting period covered by such financial statement and that such review has not disclosed the existence during such accounting period, and the signer does not have knowledge of the existence, of any condition or event which constitutes an Event of Default or which with the passage of time or the giving of notice or both, would constitute an Event of Default, or if any such Event of Default or matter which with the passage of time or the giving of notice would constitute an Event of Default, existed or Resolution No. 04-28-22-8.5 Page 69 of 164 Page 17 of 36 Section 108 Loan Agreement - LULAC OAK HILL, INC. exists, specifying the nature and period of existence thereof and what action Owner has taken or is taking or proposes to take with respect thereto; 6.5.7.5. Monthly, before commencement of completion of construction, a schedule detailing the progress of the Work and quarterly during the term of the Note, reports of the operations of the Project in Proper Form containing such information as the City may request including after the commencement of operation of the Project, a statement of income and expenses for the Project and a statement of changes in financial position and a balance sheet for the Project; 6.5.7.6. Not later than November 1 of each year during the term of the Note, Owner shall submit to the Director for review a proposed detailed Operating Budget (herein so called) for the Project for the next succeeding calendar year, showing the projections for gross income, Operating Expenses and Net Operating Income for the Project. Such budget, and any other budget or budget revision, shall be deemed approved by the Director unless written approval or disapproval from the Director is delivered to Owner within thirty (30) days after such budget or revision. If approved by the Director, such Operating Budget shall govern Owner's disbursement of Project income during the relevant calendar year. Revisions to the approved Operating Budget may be approved by the Director from time to time, based upon changed circumstances. Documentation of the preceding six months' actual disbursements pursuant to the approved Operating Budget shall be provided to the Director twice a year during the term of the Note; and 6.5.7.7. Promptly, from time to time, such other information concerning Owner or any of their respective businesses, assets, properties, conditions and operations as City may reasonably request. 6.6. Notice of Claims or Suits. Owner shall give the Director prompt written notice of any actions, suits, or other proceedings filed or any claims made against the Project, Owner, Guarantor or any other persons involved in the implementation or administration of the transactions contemplated by this Agreement. 6.7. Transactions with Affiliates. Except as otherwise provided in this Agreement and/or in any of the Loan Documents, during the term of this Agreement or any of the Loan Documents, Owner shall not enter into any transaction in connection with this Agreement with any director, officer, employee, partner, or affiliate of Owner without the prior written approval of the Director. 6.8. Taxes and Insurance. Owner shall pay all applicable taxes for the Project before delinquency and all insurance premiums for the Project at least 15 days before due date to prevent any lapse in coverage. Owner at its option shall either: (1) fund an escrow account for the payment of taxes and insurance premiums at a bank acceptable to the Director; or (2) provide the Director with written evidence acceptable to the Director that taxes and insurance premiums are paid prior Resolution No. 04-28-22-8.5 Page 70 of 164 Page 18 of 36 Section 108 Loan Agreement - LULAC OAK HILL, INC. to the date that such taxes and insurance premiums are due. To the extent that Owner escrows funds with a bank acceptable to the Director, Owner shall provide the City with evidence of the adequacy of such escrows. Further, to the extent that Owner fails to escrow funds with a bank, the Director reserves the right to require Owner to escrow funds for taxes and insurance premiums with the City. 6.9. HUD Section 3 Requirements. Owner shall comply at all times with Section 3 of the Housing and Urban Development Act of 1968 (12 U.S.C.1701 u). 6.10. Public Relations and Signage. All news releases and other public relations efforts, including advertising and signage, must be approved in advance by the Director, which approval shall not be unreasonably withheld, and must properly refer to the City's role in funding the Project. Owner will permit City and its duly authorized agents to place and maintain a sign on the Project at a suitable location selected by City, containing such information regarding the financing of the Project as City may deem appropriate. 6.11. Expertise. Upon request by the City, the City shall have the right to approve Owner's intention to retain any person or firm for constructing, leasing and managing the Project and Owner shall provide evidence of the expertise and competence of such persons and firms that Owner intends to engage for constructing, leasing and managing the Project. 6.12. Compliance with Applicable Law. 6.12.1. Owner shall acquire, construct, repair/re-construct, lease, maintain and operate the Project, and conduct all activities under this Agreement in accordance with all applicable federal, state, and local laws, rules, regulations and ordinances including, without limitation, those included in the Appendices and specifically set forth in this Agreement, as they may be from time to time amended and other applicable HUD requirements whether or not expressly stated in this Agreement or the Appendices (collectively, the "Applicable Law"). 6.12.2. Owner will conduct all activities under this Agreement and the Loan Documents in accordance with Applicable Law. 6.12.3. Owner acknowledges and agree that they are required to comply with all Applicable Law with respect to lead-based paint (42 U.S.C. Sec. 483 l(b)) and asbestos containing materials within the Project. 6.12.4. Owner shall cause the Project and the Work to comply with the requirements of 2010 ADA Standards under the Americans with Disabilities Act of 1990 (42 U.S.C. § 12101 et seq.), (except where HUD requirements require the application of UFAS (including, without limitation Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. §794 et seq.) or other guidelines as set forth under 79 Fed. Reg. 29672), the Fair Housing Act Guidelines, UFAS (as applicable to the 2010 ADA Standards if the 2010 ADA Standards are chosen as the design standard for accessibility or in full if UFAS is chosen as the design standard for accessibility), and regulations and guidelines promulgated thereunder, as all of the same may be amended and Resolution No. 04-28-22-8.5 Page 71 of 164 Page 19 of 36 Section 108 Loan Agreement - LULAC OAK HILL, INC. supplemented from time to time, the Texas Architectural Barriers Act, Article 9102, Tex. Civ. Stat. Ann. (1994) and the regulations and guidelines promulgated thereunder, and Chapter 10, subsection 60 of the Texas Administrative Code and the regulations and guidelines promulgated thereunder ("Chapter 10"), if applicable, as all of the same may be amended and supplemented from time to time (collectively, "Accessibility Requirements"). 6.12.5. If applicable, Owner shall comply with program regulations at 24 CFR § 570, the Uniform Relocation Assistance and Real Property Policies Act of 1970 ("URA"), as amended, at 49 CFR § 24, and Section 104(d) of the Housing and Community Development Act of 1974, as amended, at 24 CFR § 42 and as modified by the Neighborhood Stabilization Program under the Housing and Economic Recovery Act, 2008 (FR-5255-N-01). Owner shall also comply with any applicable tenant protection requirements set forth in the Protecting Tenants at Foreclosure Act of 2009 ("PTAF"), as well as with any local codes or ordinances with respect to tenants' rights or tenant protection. If required by applicable law, Owner shall also comply with the Multifamily Relocation Requirements ("Multifamily Relocation Requirements") in the Appendices and shall submit to the Director copies of all documentation required by the Multifamily Relocation Requirements or relating to URA, which may include, without limitation, (i) a certification or affidavit, unless waived by the Director, affirming Owner has performed all appropriate due diligence in order to confirm compliance with the tenant protection requirements set forth herein, (ii) a Notice to Real Property Owner/Seller, (iii) Tenant Status Reports, (iv) all Notices with Tenant Acknowledgements as required by the URA and (v) other related forms described in the Multifamily Requirements. If required by applicable law, Owner shall also submit to Director copies of all tenant notices and the Seller's Occupancy Certification required under PTAF with respect to the tenant protection requirements, to substantiate that such notices, if required by applicable law, were provided either by the foreclosing City or by Owner as applicable. 6.12.6. Owner will comply with all applicable uniform administrative requirements, as described in 24 CFR § 570.502, as amended from time to time, and will carry out each of its activities under this agreement, in compliance with all Federal laws and regulations described in 24 CFR Subpart K, except that 6.22.6 Owner does not assume City's environmental responsibilities described at 24 CFR § 570.604; and 6.22.7 Owner does not assume City's responsibility for initiating the review process under the provisions of 24 CFR Part 52. 6.13. Consulting and Developer’s Fees. During the term of the Loan, without prior written approval of the Director, no consulting or developer's fees shall be paid by Owner directly or indirectly out of the proceeds of the City's Funding or out of the revenue of the Project. SECTION VII TERMS OF LOAN Resolution No. 04-28-22-8.5 Page 72 of 164 Page 20 of 36 Section 108 Loan Agreement - LULAC OAK HILL, INC. 7.1. Purpose; Term. The purpose of Loan is to finance the construction of the Improvements and to provide term financing upon completion of such work. The Loan is for a term beginning on the date of the Note and ending on the Maturity Date. 7.2. Commitment; Use of Funds. City agrees, subject to the terms and conditions of this Agreement, to make Draws to Owner under this Section prior to the Completion Date in an aggregate principal amount up to but not exceeding $2,808,000.00 for the purpose of paying the cost of the Work in accordance with the Approved Final Project Budget and Approved Final Construction Budget. Owner shall not, without the prior written consent of City, apply or permit application of any funds drawn against the Note for any purposes other than the Work set forth in the Approved Final Project Budget and Approved Final Construction Budget or in excess, in the aggregate, of the respective amounts set forth in the Approved Final Project Budget and Approved Final Construction Budget. Any "contingency" line items for Hard Costs or Soft Costs as shown in the Approved Final Project Budget and Approved Final Construction Budget may be used for other Hard Costs items or Soft Costs items, respectively, without approval of, but with notice to, City. City is not required to make, and Owner will not apply, any Draw (i) to pay any item of Work in excess of the amount budgeted for it in the Project Budget, provided that if, as herein permitted, "contingency" line items are used for other items than those initially designated, Owner may apply funds from any Draw to pay such items so identified, to the extent of additions from contingency line items so used, (ii) to pay any item of Work not included in the Project Budget, (iii) to pay any item of Work in excess of the amounts necessary to complete construction of the Project and to pay other costs for the Work that are specifically provided for in the Approved Final Project Budget and Approved Final Construction Budget or (iv) to pay any principal payment required hereunder. 7.3. Reborrowing. Notwithstanding anything herein to the contrary, any principal payments made by Owner to City, including any payments of principal and interest as described in the Note, will not be available for reborrowing by Owner. 7.4. Interest. 7.4.1. Accrual of Interest. The outstanding principal balance of the Note shall bear interest as set forth in the Note. 7.4.2. Computation of Interest. All interest hereunder shall be computed based on a year of 360 days and shall be payable for the actual number of days elapsed (including the first day but excluding the last day). 7.5. Repayment. The Loan (to the extent not otherwise prepaid as allowed under the Loan Documents) shall be repayable as follows; 7.5.1. Beginning on the first day of the first quarter after the date of the Initial Draw, and continuing quarterly until maturity, Owner shall pay to City equal installments of principal and interest necessary to amortize the outstanding principal balance of the Note. 7.5.2. All unpaid principal and interest shall be due and payable on the Maturity Date. Resolution No. 04-28-22-8.5 Page 73 of 164 Page 21 of 36 Section 108 Loan Agreement - LULAC OAK HILL, INC. SECTION VIII DISBURSEMENT PROCEDURES 8.1. Disbursement Limitations. The proceeds of the Loan shall be disbursed only for hard costs, allowable soft costs or relocation costs that (i) are included in the Approved Final Project Budget, (ii) have been approved by the Director, (iii) if for Work, are for Work that has been completed and which Work has been approved by the Director, and (iv) if for materials, are for materials purchased and stored on site or off site and approved by the Director. In the event all the Closing Conditions contained in this Agreement have been satisfied as of the Closing Date, the City shall disburse Proceeds as and when, and for the purposes and in amounts set forth in this Agreement. 8.2. Retainage. Disbursement for the Work or other expenses under the Approved Final Construction Budget shall be subject to a ten percent (10.0%) retainage under Section 53.101, et seq. of the Texas Property Code (as it may be amended from time to time), but notwithstanding the foregoing, in no case shall retainage be released prior to thirty (30) days following completion of the Work as certified by the Architect or other person acceptable to the City. At the time of the release of the retainage, the Project is or will be because of the release of retainage free of all liens relating to the Project, provided that Owner shall have the right to contest the validity of any liens or claims for liens, by bonding around such lien in accordance with the requirement of the Texas Property Code and by exercising other protective measures regarding disputed. At the time of the release of the retainage, Owner shall provide the City with a down-date endorsement (T-3), final lien waivers and/or such other documentation as may be required by the Director. 8.3. Reallocation of Proceeds. Any Funding Proceeds that are allocated for the Project but that are not expended for eligible costs under the Approved Final Project Budget pursuant to the terms of this Agreement shall be returned to the City. 8.4. Reallocation of Savings and Contingencies. Owner may, with the Director's written approval, reallocate savings from one category of the Approved Final Project Budget or from the contingency category of the Approved Final Construction Budget to another category of the Approved Final Project Budget for the Project. 8.5. Drawdown Procedure. Owner shall not request a disbursement of the Loan Proceeds except in accordance with the Approved Final Construction Schedule and Approved Final Project Budget. When a disbursement of Loan Proceeds is requested, Owner shall deliver to the Director (but in no event more often than once a month and for an amount of not less than $5,000) an application for the disbursement (in a form required by the Director) (the "Disbursement Request") together with supporting documentation required by the Director (which shall include but not be limited to a down date endorsement to the City's Loan Title Policy, invoices and draw requests submitted by Contractor, interim lien waivers using forms provided by or acceptable to HUD, and monthly construction progress reports in a form reasonably acceptable to the Director for verification by a third party inspector or a representative of the City) and evidence of required permits. In addition to the other information required by the Director, the initial disbursement request shall include a copy of all required permits necessary to commence Resolution No. 04-28-22-8.5 Page 74 of 164 Page 22 of 36 Section 108 Loan Agreement - LULAC OAK HILL, INC. construction. If the Director objects to an item (or portion thereof) included in any Disbursement Request or if all required information has not been submitted, then the Director shall notify Owner within 10 business days of receipt of the applicable Disbursement Request of the Director's objection and shall thereupon be relieved of any obligation to make a disbursement for that item until such time as Owner cures the objection(s) to the satisfaction of the Director. If the Disbursement Request is otherwise complete (as determined by the Director) and provided no Default or event that with the passage of time or giving of notice would constitute a Default has occurred, the City shall, within 30 calendar days following approval of Owner's request, fund the requested disbursement from the Loan less any amounts for items to which the Director has raised an objection and that have not been cured and less any retainage; provided, however, that the City shall not be required to make a disbursement (other than the last disbursement) in an amount less than $5,000 nor shall the City be required to make more than one disbursement per month. With each draw, the Owner shall provide a down-date endorsement (T-3) to the Mortgagee Title Policy together with conditional lien releases from the Contractor and subcontractors for the Work performed through the date of the draw request, provided that Owner shall have the right to contest the validity of any liens or claims for liens, by bonding around such lien in accordance with the requirements of the Texas Property Code, and by exercising other protective measures regarding disputed liens. 8.6. Conditions to Draws. The obligations of City to make any Draw is subject to the accuracy of all representations and warranties of Owner in this Agreement or any other Loan Documents on the date of this Agreement and the date of the Draw (and City's receipt of evidence of such accuracy in Proper Form), to the performance by Owner of its obligations under the Loan Documents (and City's receipt of evidence of such performance in Proper Form) and to the satisfaction of the following conditions, each in Proper Form: 8.6.1. City shall have received no later ten (10) Business Days prior to the date of the requested Draw, a duly completed and executed Request for Draw and, with respect to each Draw for Hard Costs other than furniture, fixtures and equipment; 8.6.2. City shall have received, as part of the Request for Draw, executed lien waivers and, acknowledgements of payment (subject to retainage) through the date of the immediately preceding Draw (other than with respect to the final Draw, which shall include all periods through the Completion Date) from any and all of the General Contractor, subcontractors, materialmen, engineers, design professionals and any other Person for whom amounts were drawn under this Agreement as included in the immediately preceding Draw, or satisfactory evidence to confirm bonding around of any contested lien claims or the exercise of other protective measures regarding disputed liens; 8.6.3. prior to the date thereof, there shall have occurred, in the reasonable opinion of City, no material adverse change in the assets, liabilities or condition (financial or otherwise) of the Owner; Resolution No. 04-28-22-8.5 Page 75 of 164 Page 23 of 36 Section 108 Loan Agreement - LULAC OAK HILL, INC. 8.6.4. no Event of Default or any event or circumstance which could, with the passage of time or the giving of notice or both, constitute an Event of Default shall have occurred and be continuing; 8.6.5. the making of the Draw shall not be prohibited by any applicable Legal Requirement; 8.6.6. all the Loan Documents then required by City have been executed and delivered, and shall be valid, enforceable and in full force and effect; 8.6.7. all fees and expenses owed to City, if any, under any of the Loan Documents as of the date thereof shall have been paid in full; 8.6.8. no material default, or any circumstances which with the passage of time or the giving of notice or both constitutes a material default or event of default, under the Other Financing Documents has occurred and is continuing; 8.6.9. City is satisfied that, if drawn in accordance with this Agreement, the Approved Final Construction Schedule and Approved Final Construction Budget, the unadvanced proceeds of the Loan, together with such other sums as may have been deposited with City for the purpose of paying the costs of the Work, will be sufficient to pay for completion of the Work in accordance with the Plans and Specifications; 8.6.10. City shall have received copies, certified as true, correct and complete, of all construction contracts, engineer agreements and design professional agreements then in existence relating to the Work; 8.6.11. City shall have received evidence reasonably satisfactory to City as to the perfection and priority of the Liens created by the Loan Documents including a down date endorsement from the Title Company showing no additional claims against or exceptions to title to the Property as of the date of the applicable Draw or other satisfactory documentation provided to the City to confirm bonding around of any contested lien claims or the exercise of other protective measures regarding disputed liens; 8.6.12. For Draws after the commencement of the Work, City shall have received a report reasonably satisfactory to City as to the progress of the Work, the conformity of the Work with the Plans and Specifications, the sufficiency of the Loan Proceeds to fund the Work remaining to be completed, whether all materialmen, subcontractors and contractors have been paid for Work done to date, whether the Work can be completed by the Completion Date and any other matters which City requests to be reviewed; 8.6.13. the Request for Draw shall not contain any materially false, inaccurate or misleading statements; and 8.6.14. City shall have received such other documents as it may reasonably require relating to the requested Draw. Resolution No. 04-28-22-8.5 Page 76 of 164 Page 24 of 36 Section 108 Loan Agreement - LULAC OAK HILL, INC. 8.7. Direct Payment to Contractors. City may elect to pay any amount of any Draw which is to be used to pay any contractor, subcontractor, materialman or any design professional directly to them or it, instead of advancing that money to Owner, and will notify Owner if (and how) it has exercised that election on each occasion it does. All Draws made pursuant to a Request for Draw for payment of any other items set forth in the Approved Final Project Budget and Approved Final Construction Budget shall be drawn to or for the account of Owner as payment of Owner's obligation to the party paid. 8.8. Off-site Materials. City shall not be obligated to fund any Draw covering in whole or in part any equipment or materials not stored at the Project unless (i) such equipment or material is stored at a lumber mill or bonded warehouse reasonably acceptable to Director; (ii) City receives evidence reasonably satisfactory to City, and Owner warrants to City, that such equipment or materials shall be held separate and segregated from any other equipment, inventory or property being held at such lumber mill or bonded warehouse and shall be properly labeled and designated as the property of the Owner; (iii) City receives evidence reasonably satisfactory to City that such equipment or materials is insured as required by City and that City's lien against or interest in such equipment or materials is and shall continue to be perfected and superior to any other lien against such equipment or materials; and (iv) such Draw has been approved by the Director. 8.9. Reaffirmation of Representations. Each Request for Draw submitted by Owner shall constitute a reaffirmation and ratification of all representations and warranties set forth herein and in other Loan Documents as of the date of such Request for Draw (except as expressly set forth in the Request for Draw) and shall also constitute a representation and warranty of Owner that no Event of Default or, to Owner's Knowledge, any event or circumstance which, with the passage of time or giving of notice or both, could constitute an Event of Default has occurred and is continuing (except as expressly set forth in the Request for Draw). SECTION IX DEFAULT AND REMEDIES 9.1. Default. The Director may declare a default ("Default") under this Agreement or any one or more of the Loan Documents upon the occurrence of any one or more of the following circumstances: 9.1.1. Failure to Pay. If Owner fails to pay, when due, any portion of the indebtedness evidenced by the Note and/or Agreement and such failure continues for ten (10) days after written notice thereof. 9.1.2. Breach of Restrictive Covenants. If Owner breaches any covenant, condition, representation or warranty contained in the Restrictive Covenants and such breach continues for thirty (30) days after written notice thereof from the City to Owner. 9.1.3. Breach of Other Covenants or Conditions. Except for the breaches of covenants or conditions covered by Section Ten, Paragraphs 9.1.1 and 9.1.2 above, if Owner fails, refuses or neglects to perform fully and timely any obligation, or breaches any covenant or condition (including any condition prior to or subsequent to the issuance Resolution No. 04-28-22-8.5 Page 77 of 164 Page 25 of 36 Section 108 Loan Agreement - LULAC OAK HILL, INC. of the Loan) under this Agreement, or under any other Loan Documents, and such failure continues for thirty (30) days after written notice from the City to Owner; provided, however that in the event that (i) any such cure periods would cause a violation to occur under Applicable Law or (ii) any breach or failure of performance of a life safety requirement, such event shall be deemed a Default hereunder without any notice or opportunity to cure. 9.1.4. Breach of Representations or Warranties. If any representation or warranty made by Owner in its application(s) for the Loan or in any of the Loan Documents, or this Agreement, is false or misleading in any material respect, Owner shall have thirty (30) days after written notice to the Owner from the City in which to take such action as may be necessary to cause the matter or thing represented to become true or not misleading; provided, however that in the event that (i) any such cure periods would cause a violation to occur under Applicable Law or (ii) such misrepresentation involves a financial covenant, such event may be deemed and declared a Default hereunder without any notice or opportunity to cure. 9.1.5. Voluntary Actions. If Owner is voluntarily adjudicated bankrupt, seeks, consents or does not contest the appointment of a receiver or trustee for itself or for all or part of its property, makes a general assignment for the benefit of creditors, does not pay its debts as they become due, or files a petition seeking relief under United States Bankruptcy Code. 9.1.6. Involuntary Actions. If a petition is filed against Owner under United States Bankruptcy Code or if a court of competent jurisdiction enters an order appointing a receiver or trustee for Owner or all or any material part of such party's property, and the order or petition is not discharged, dismissed or stayed within a period of ninety (90) days. 9.1.7. Dissolution or Liquidation. If Owner is a partnership, limited liability company, corporation or other legal entity and dissolves, liquidates, or merges with or is consolidated into any other entity without the written approval of the Director. 9.1.8. Destruction of the Project. If the Project is demolished, destroyed or substantially damaged, and it is not restored or rebuilt in accordance with the requirements of the Loan Documents. 9.1.9. Cessation of Work. If Work on the Project ceases for ninety (90) or more consecutive days unless such cessation of Work is caused by cessation of funding under the Loan or by an event of force majeure. 9.1.10. Liens and Other Encumbrances. If any mechanics', materialman' s or other similar lien or encumbrance is filed against the Project, or the fixtures, materials, machinery and equipment to be used in the Project or other collateral that secures the Loan, and the same is not discharged (by payment, bonding, which may include payment bond Resolution No. 04-28-22-8.5 Page 78 of 164 Page 26 of 36 Section 108 Loan Agreement - LULAC OAK HILL, INC. furnished by contractor, or otherwise) within fifteen (15) working days following written notice thereof from the City to Owner. 9.1.11. Change in Ownership or Management. 9.1.11.1. If all or any part of Owner's interest in the Project is transferred, sold or assigned, voluntarily or involuntarily, except as permitted in this Agreement, or there is a change of management of the Project, at any time within the Term of the City Funding, such transfer of interest or change of management must first be approved in writing by the Director, which approval may be granted or withheld by the Director. In the case of a transfer of Owner's interest in the Project, the Director's consent, if any, shall not be effective unless or until the purchaser or transferee assumes in writing all obligations and covenants of Owner under the Loan Documents in a form acceptable to the Director and the City Attorney; or 9.1.11.2. If there is otherwise a change in control of Owner in violation of this Agreement; or 9.1.11.3. There is a change in Property Manager without Director’s consent. 9.1.12. Failure to Complete. If Owner fails to complete the Work in accordance with the Approved Plans, Specifications, and Drawings that are approved by the Director within and the Approved Construction Period. 9.1.13. HUD, IRS or Other Audit Findings or Exceptions. If HUD the Internal Revenue Service, or other federal or state agency makes an audit finding or exception that relates to the Project, the funds provided under this Agreement, or Other Funding, provided, however, that if the audit finding or exception is curable, there shall be no Default unless the audit finding or exception is not cured within thirty (30) days after written notice to Owner of such finding or exception or for such greater period as shall be necessary to cure such finding or exception so long as Owner commences to cure such finding or exception within thirty (30) days after written notice thereof to Owner and satisfactorily completes such cure. 9.2. Owner’s Right to Contest. Notwithstanding anything herein or in any of the other Loan Documents to the contrary, Owner will not be deemed to be in default hereunder for allowing, suffering or failing to pay, as applicable, any mechanics' or materialmen's lien, bills due to any contractor or subcontract, ad valorem taxes or assessments or any Lien, suit, action or proceeding that, in the absence of this Section, would, with notice or passage of time or both, constitute an Event of Default hereunder, if Owner is, in good faith, by appropriate proceedings contesting or protesting the validity, applicability or amount of any such mechanics' or materialmen's lien, bills due to any contractor or subcontractor, ad valorem taxes or assessments or any Lien, suit, action or proceeding; provided, however, that such contest or protest must stay or prevent a proceeding or action that may divest or impair Owner's title to any of its Property or which may affect the priority or validity of Resolution No. 04-28-22-8.5 Page 79 of 164 Page 27 of 36 Section 108 Loan Agreement - LULAC OAK HILL, INC. the Loan Documents or any liens created thereunder, and City may, as a condition to Owner's right to contest, require Owner to establish an escrow or post a bond or other security that is adequate, in City's reasonable discretion, to compensate City for any losses, costs and expenses which it may suffer or incur as a result of any such divestiture or impairment of title or invalidity or loss of priority under any Loan Document (which escrow or security will be returned to Owner upon payment or release of the sums subject to contest). City will permit Owner to contest minor liens which do not exceed $25,000 in amount without litigation or posting a bond. Owner shall promptly cause to be paid any amount adjudged by a court of competent jurisdiction to be due, with all costs, penalties and interest, promptly after the judgment becomes final. In any event each contest must be concluded and the sums due be paid prior to the date any writ or order is issued under which the divestiture or impairment of title or inability or loss of priority under any Loan Document is threatened. 9.3. City’s Right to Cure. If Owner should fail to comply with any of their agreements, covenants or obligations under any Loan Document, then City (in the applicable Obligor's name or in City's own name) may, upon written notice to Owner, perform them or cause them to be performed for Owner's account and at Owner's expense, but shall have no obligation to perform any of them or cause them to be performed. Any and all expenses thus incurred or paid by City shall be Owner's obligations to City due and payable on demand, or if no demand is sooner made, then they shall be due on or before four years after the respective dates on which they were incurred, and each shall bear interest from the date City pays it until the date Owner repays it to City, at the Past Due Rate. Upon making any such payment or incurring any such expense, City shall be fully and automatically subrogated to the rights of the person, corporation or Governmental Authority receiving such payment. Any amounts owing by Owner to City pursuant to this or any other provision of this Agreement shall be secured by all instruments securing the respective Note. The amount and nature of any such expense and the time when it was paid shall be fully established by the affidavit of City or any of City's officers or agents. The exercise of the privileges granted to City in this Section shall in no event be considered or constitute a cure of the default or a waiver of City's right at any time after an Event of Default to declare the Note to be at once due and payable, but is cumulative of such right and of all rights given by this Agreement, the Notes and the Loan Documents and of all rights given City by law. 9.4. City’s Remedies. 9.4.1. Upon the declaration of a Default by the Director and the failure by Owner to cure same within a time period specified herein (if any), the Director may in his or her sole discretion: (i) terminate this Agreement; (ii) accelerate payment of the Note and declare that all sums under the Loan are immediately due and payable; (iii) foreclose on the Project; (iv) cease funding any disbursements of the Loan; and/or (v) take any other action authorized or available under this Agreement, any of the Loan Documents or under Applicable Law or in equity. In the event of a Default, if the Resolution No. 04-28-22-8.5 Page 80 of 164 Page 28 of 36 Section 108 Loan Agreement - LULAC OAK HILL, INC. Director so chooses this remedy, the outstanding principal balance of the Loan shall be immediately due and payable. Upon the occurrence of any Default regarding the Loan, the principal shall bear interest at a rate of the lesser of the Past Due Rate or the maximum rate of interest permitted to be contracted for by Applicable Law ("Highest Lawful Rate"). If the City elects to stop funding the Loan upon the occurrence and continuance of a Default, the Owner shall be obligated to continue and complete the Work at Owner's expense. 9.4.2. Notwithstanding any provision in this Section to the contrary, upon the occurrence of any Event of Default, City shall have the right, immediately and without notice, to take possession of and exercise possessory rights with regard to any property securing payment of the indebtedness evidenced by the Notes and perform any and all work and labor necessary to complete the Work and employ watchmen to protect any applicable property (all such sums reasonably expended by City in connection therewith to be deemed to have been paid to or advanced on behalf of Owner and to be secured by the Loan Documents). Upon the occurrence of an Event of Default, Owner hereby irrevocably constitutes and appoints City as the true and lawful attorney-in-fact of Owner with full power of substitution to complete, or cause to be completed, the Work in the name of Owner and hereby empowers such attorney or attorneys as follows: to use such sums as are necessary, including funds of Owner (including any balance which may be held in escrow and any funds which may remain unadvanced hereunder) for the purpose of completing the Work; to make such additional changes and corrections in the Plans and Specifications which shall be necessary or desirable to complete the Work; to employ such contractors, subcontractors, agents, inspectors and architects and other design professionals as shall be reasonably required for such purpose; to pay, settle or compromise all existing bills and claims which are or may be liens against any of the Project or which may be reasonably necessary or desirable for the completion of the Work or the clearance of title; to execute all applications and certificates in the name of Owner which may be required by any construction contract; to endorse the name of Owner on all checks or drafts for the payment of insurance proceeds or other checks or instruments, whether to use such funds to complete the Work or to reimburse City for sums theretofore advanced or expended and to do any and every act with respect to the Work which Owner may do in Owner's own behalf. It is understood and agreed that this power of attorney shall be deemed to be a power coupled with an interest which cannot be revoked. The attorney- in-fact shall also have power to prosecute and defend all actions or proceedings in connection with the Work and to take such other action and require such performance as is deemed necessary. SECTION X ALLOCATION OF COST SAVINGS Resolution No. 04-28-22-8.5 Page 81 of 164 Page 29 of 36 Section 108 Loan Agreement - LULAC OAK HILL, INC. AND RECOVERY OF DAMAGES FROM CONTRACTOR 10.1. In the event that (i) cost savings are achieved in connection with the performance of the Work and not otherwise reallocated in accordance with this Agreement or (ii) the Contractor or any Subcontractor selected to perform the Work on the Project makes a payment of damages to Owner for delays, defective workmanship or material, or for other items related to Work on the Project and such sums are not used by Owner to correct such defective workmanship or otherwise mitigate any damages related to Work on the Project resulting from such default by the Contractor or any Subcontractor, or pay other approved costs, Owner shall forego a Draw of such cost savings amount, or promptly pay to the City a portion of such cost savings which were not allocated or the sum received as payment of damages not otherwise used as described above, to be applied against the principal balance of the Loan. SECTION XI INSURANCE 11.1. Coverages. Owner shall procure and maintain at its sole cost and expense for the duration of this Agreement insurance against claims for injuries to persons or damages to property that may arise from or in connection with the Work or the Project hereunder by the Owner, its agents, representatives, volunteers, employees, contractors or subcontractors. The policies, coverages, limits and endorsements required are set forth below. During the term of this Agreement, Owner’s insurance policies shall meet the minimum requirements of this section. 11.2. Types. Owner shall have the following types of insurance: (a) Commercial General Liability (b) Business Automobile Liability (c) Excess Liability (d) Owner and Contractor’s Protective Liability (e) Workers’ Compensation / Employer’s Liability 11.3. General Requirements Applicable to All Policies. The following general requirements applicable to all policies shall apply: (a) Only licensed Insurance Carriers authorized to do business in the State of Texas will be accepted. (b) Deductibles shall be listed on the Certificate of Insurance and are acceptable only on a per occurrence basis for property damage only. (c) “Claims Made” policies are not accepted. Resolution No. 04-28-22-8.5 Page 82 of 164 Page 30 of 36 Section 108 Loan Agreement - LULAC OAK HILL, INC. (d) Coverage shall not be suspended, voided, canceled, reduced in coverage or in limits except after thirty (30) days prior written notice has been given to the City of College Station. (e) The City of College Station, its agents, officials, employees and volunteers, are to be named as “Additional Insured” to the Commercial General, Umbrella and Business Automobile Liability policies. The coverage shall contain no special limitations on the scope of protection afforded to the City, its agents, officials, employees or volunteers. 11.4. Commercial General Liability. The following Commercial General Liability requirements shall apply: (a) General Liability insurance shall be written by a carrier rated “A:VII” or better in accordance with the current A.M. Best Key Rating Guide. (b) Limit of $1,000,000.00 per occurrence for bodily injury and property damage with an annual aggregate limit of $2,000,000.00 which limits shall be endorsed to be per Project. (c) Coverage shall be at least as broad as ISO form GC 00 01. (d) No coverage shall be excluded from the standard policy without notification of individual exclusions being attached for the City’s review and acceptance. (e) The coverage shall not exclude the following: premises/operations with separate aggregate; independent contracts; products/completed operations; contractual liability (insuring the indemnity provided herein) Host Liquor Liability, Personal & Advertising Liability; and Explosion, Collapse, and Underground coverage. 11.5. Business Automobile Liability. The following Business Automobile Liability requirements shall apply: (a) Business Automobile Liability insurance shall be written by a carrier rated “A:VII” or better in accordance with the current A.M. Best Key Rating Guide. (b) Minimum Combined Single Limit of $1,000,000.00. per occurrence for bodily injury and property damage. (c) Business Automobile Liability insurance shall be written by a carrier rated “A:VIII” or better rating under the current A. M. Best Key Rating Guide. (d) Policies shall contain an endorsement naming the City as Additional Insured and further providing “primary and non-contributory” language with regard to self- insurance or any insurance the City may have or obtain. (e) Combined Single Limit of Liability not less than $1,000,000 per occurrence for bodily injury and property damage. (f) The Business Auto Policy must show Symbol 1 in the Covered Autos Portion of the liability section in Item 2 of the declarations page. Resolution No. 04-28-22-8.5 Page 83 of 164 Page 31 of 36 Section 108 Loan Agreement - LULAC OAK HILL, INC. (g) The coverage shall include any autos, owned autos, leased or rented autos, non-owned autos, and hired autos. 11.6. Excess Liability. The following Excess Liability requirements shall apply: Unless otherwise agreed in writing, excess liability coverage following the form of the underlying coverage with a minimum limit of $5,000,000.00 or the total value of the Agreement, whichever is greater, per occurrence/aggregate when combined with the lowest primary liability coverage. 11.7. Workers’ Compensation / Employer’s Liability Insurance. Workers’ Compensation / Employer’s Liability insurance shall include the following terms: (a) Employer’s Liability minimum limits of liability not less than $1,000,000.00 for each accident/each disease/each employee are required. (b) “Texas Waiver of Our Right to Recover From Others Endorsement, WC 42 03 04” shall be included in this policy. (c) TEXAS must appear in Item 3A of the Workers’ Compensation coverage or Item 3C must contain the following: “All States except those listed in Item 3A and the States of NV, ND, OH, WA, WV, and WY 11.8. Certificates of Insurance. Certificates of Insurance shall be prepared and executed by the insurance company or its authorized agent on the most current State of Texas Department of Insurance-approved form, and shall contain the following provisions and warranties: (a) The company is authorized to do business in the State of Texas. (b) The insurance policies provided by the insurance company are underwritten on forms that have been provided by the Department of Insurance or ISO. (c) Original endorsements affecting coverage required by the section shall be furnished with the certificates of insurance. SECTION XIII RELEASE AND INDEMNIFICATION 12.1. Release. OWNER, ITS PREDECESSORS, SUCCESSORS AND ASSIGNS (THE FOREGOING ARE COLLECTIVELY REFERRED TO IN THIS SECTION AS "OWNER") HEREBY RELEASE, RELINQUISH AND DISCHARGE THE CITY, ITS PREDECESSORS, SUCCESSORS, ASSIGNS, LEGAL REPRESENTATIVES AND ITS FORMER, PRESENT AND FUTURE AGENTS, EMPLOYEES AND OFFICERS (THE FOREGOING ARE COLLECTIVELY REFERRED TO IN THIS SECTION AS "CITY") FROM ANY LIABILITY AS A RESULT OF THE JOINT NEGLIGENCE OF THE CITY AS A RESULT OF ANY INJURY, INCLUDING DEATH OR DAMAGE TO PERSONS OR Resolution No. 04-28-22-8.5 Page 84 of 164 Page 32 of 36 Section 108 Loan Agreement - LULAC OAK HILL, INC. PROPERTY, WHERE SUCH DAMAGE IS SUSTAINED IN CONNECTION WITH THIS AGREEMENT. 12.2. INDEMNIFICATION. OWNER COVENANTS AND WARRANTS THAT IT WILL PROTECT, DEFEND, AND HOLD THE CITY HARMLESS FROM ANY AND ALL THIRD PARTY CLAIMS, DEMANDS, AND LIABILITY, INCLUDING DEFENSE COSTS, RELATING IN ANY WAY TO DAMAGES, CLAIMS OR FINES ARISING BY REASON OF OR IN CONNECTION WITH OWNER'S ACTUAL OR ALLEGED NEGLIGENCE OR OTHER ACTIONABLE PERFORMANCE OR OMISSION OF OWNER IN CONNECTION WITH OR DURING THE PERFORMANCE OF THE DUTIES UNDER THIS AGREEMENT. ALSO, DURING THE PERFORMANCE OF THE WORK AND UP TO A PERIOD OF FIVE (5) YEARS AFTER THE DATE OF FINAL ACCEPTANCE OF THE WORK, OWNER FURTHER EXPRESSLY COVENANTS AND AGREES TO PROTECT, DEFEND, INDEMNIFY, AND HOLD HARMLESS THE CITY FROM ALL CLAIMS, ALLEGATIONS, FINES, DEMANDS, AND DAMAGES RELATING IN ANY WAY TO THE ACTUAL OR ALLEGED JOINT AND/OR CONCURRENT NEGLIGENCE OF THE CITY, WHETHER OWNER IS IMMUNE FROM LIABILITY OR NOT. IT IS THE EXPRESSED INTENTION OF THE PARTIES HERETO THAT THE INDEMNITY PROVIDED HEREIN IS AN AGREEMENT BY OWNER TO INDEMNIFY AND PROTECT THE CITY FROM THE CITY'S OWN NEGLIGENCE WHERE SAID NEGLIGENCE IS AN ALLEGED OR ACTUAL CONCURRING PROXIMATE CAUSE OF ANY ALLEGED THIRD-PARTY HARM THE INDEMNITY PROVISION PROVIDED HEREIN SHALL HAVE NO APPLICATION TO ANY CLAIM OR DEMAND WHERE BODILY INJURY, DEATH, OR DAMAGE RESULTS ONLY FROM THE SOLE NEGLIGENCE OF THE CITY UNMIXED WITH ANY FAULT OF OWNER. FURTHER, THE COVENANTS MADE IN THIS SECTION TOGETHER WITH ALL OTHER INDEMNIFICATION REQUIREMENTS OF OWNER SHALL BE JOINT AND SEVERAL OBLIGATIONS OF OWNER. OWNER AGREES THAT WITH RESPECT TO ANY LEGAL LIMIATIONS NO OR HEREAFTER IN EFFECT AND AFFECTING THE VALIDITY OR ENFORCEABILITY OF ITS INDEMNIFICATION OBLIGATIONS , SUCH LEGAL LIMITATIONS ARE MADE APART OF THE INDEMNIFICATION OBLIGATION AND SHALL OPERATE TO AMEND THE INDEMNIFICATION OBLIGATION TO THE MINIMUM EXTENT NECESSARY TO BRING SUCH CONFLICTING PROVISION INTO CONFORMITY WITH THE REQUIREMENTS OF SUCH LIMITATIONS, AND AS SO MODIFIED, THE INDEMNIFICATION OBLIGATION SHALL CONTINUE IN FULL FORCE AND EFFECT. THESE INDEMNITY PROVISIONS SHALL SURVIVE THE TERMINATION OR EXPIRATION OF THIS AGREEMENT. SECTION XIII Resolution No. 04-28-22-8.5 Page 85 of 164 Page 33 of 36 Section 108 Loan Agreement - LULAC OAK HILL, INC. NOTICE 13.1. All notices demands, certificates, or other communications hereunder shall be in writing and shall be deemed sufficiently given or served for all purposes when delivered personally, when sent by certified or registered mail, postage prepaid, return receipt requested or by private courier service, in each case, with the proper address as indicated below; provided that any such notices, demands, certificates, or other communications shall be deemed delivered on the date delivered, or if mailed, three (3) days after deposit in the U.S. mail. Where an email address is indicated below, notice shall also be sent to the applicable party by email as well as one of the other designated forms of notice but notice by email shall not satisfy the notice delivery requirement of this Agreement. Each party may, by written notice given to the other parties, designate any other address or addresses to which notices, certificates or other communications to them shall be sent as contemplated by this Agreement. Until otherwise so provided by the respective parties, all notices, certificates and communications to each of them shall be addressed as follows: TO THE CITY: City of College Station c/o Community Services 1101 Texas Avenue College Station, TX 77840 Attention: Director TO OWNER: LULAC OAK HILL, INC. 1105 Anderson College Station, Texas 77840 Attention: SECTION XIV MISCELLANEOUS 14.1. Relationship of Parties. The relationship of the City to Owner pursuant to this Agreement, the Note, and all other Loan Documents is that of City to borrower. Neither this Agreement, the Note, nor any of the Loan Documents creates any partnership, joint venture, or fiduciary relationship between City and Owner. 14.2. Parties in Interest. Except for the rights of HUD specifically set forth herein, this Agreement shall not bestow any rights upon any third party, but, rather, shall bind and benefit the City and Owner, and as applicable, benefit HUD. Neither the U.S. Government, HUD, any contractor, subcontractor or supplier, nor any other person or entity, is a party to or a third-party beneficiary of this Agreement. Resolution No. 04-28-22-8.5 Page 86 of 164 Page 34 of 36 Section 108 Loan Agreement - LULAC OAK HILL, INC. 14.3. Exculpation. The City shall not be liable to Owner or responsible in any manner to any third-party in connection with this Agreement. 14.4. Non-waiver. Failure or forbearance of either party hereto to insist on the strict performance of any obligation under this Agreement or to exercise any rights or remedies accruing upon default shall not be considered a waiver of the right to insist on and to enforce, by any appropriate remedy, strict compliance with any other obligation or to exercise any right or remedy occurring as a result of any future default or failure of performance. 14.5. Modification. Any alterations, additions, or deletions to terms which are required by changes in federal or state laws and regulations shall be automatically incorporated into this Agreement and shall take effect on the effective date of the laws or regulations. 14.6. Severability. In the event that any covenant, condition or provision of this Agreement is held to be invalid by a court of competent jurisdiction, the invalidity of the invalid covenant, condition or provision shall in no way affect any other covenant, condition, or provision, provided that the respective rights and obligations of the parties contained in the valid covenants, conditions and provisions of this Agreement are not materially prejudiced. 14.7. Choice of Law. This Agreement shall be performable and enforced in Brazos County, Texas, and shall be construed in accordance with the laws of the State of Texas and other Applicable Law. Venue shall be appropriate in Brazos County, as applicable. 14.8. Integration. Except as may be otherwise provided in this Agreement, this Agreement, the Appendices, Attachments, and Exhibits embody the entire Agreement between the City and Owner, and there are no other effective agreements, representations or warranties between the City and Owner in connection with this Agreement. 14.9. Assignability. This Agreement shall not be assignable in whole or in part by Owner without the prior written consent of HUD and the City which consent on behalf of the City shall be in the form of a resolution passed by City Council. 14.10. Survival. All the terms of this Agreement (including without limitation, the conditions listed in Section Three) shall survive the execution of the Note, Deed of Trust and other Loan Documents. The parties hereto expressly agree and acknowledge that the terms of this Agreement, except where specifically indicated herein, shall remain in full force and effect until the expiration of the Term of the Loan. 14.11. Captions. The use of captions in this Agreement is for convenience only and such captions shall not be used to define or limit the terms of this Agreement. 14.12. Applicable Law. The interpretation and application of this Agreement shall be in accordance with Applicable Law. 14.13. Multiple Counterparts; Effective Date. The parties have executed this Agreement in multiple originals, each having full force and effect, as of the Effective Date. Resolution No. 04-28-22-8.5 Page 87 of 164 Page 35 of 36 Section 108 Loan Agreement - LULAC OAK HILL, INC. 14.14. Approval by City or Director. All references to "reasonable" with respect to the granting or denying of the City's or the Director's approval shall be deemed to be "reasonable" if the Director is acting in his or her official capacity. 14.15. To the extent applicable, this Agreement is subject to the following: 14.15.1. Boycott Israel. If this Agreement is for goods and services subject to § 2270.002 Texas Government Code, Program Participant verifies that it i) does not boycott Israel; and ii) will not boycott Israel during the term of this Agreement; 14.15.2. Boycott Firearms. If this Agreement is for goods and services subject to § 2274.002 Texas Government Code, Program Participant verifies that it i) does not have a practice, policy, guidance, or directive that discriminates against a firearm entity or firearm trade association; and ii) will not discriminate during the term of the contract against a firearm entity or firearm trade association; and 14.15.3. Boycott Energy Companies. Subject to § 2274.002 Texas Government Code, Program Participant herein verifies that it i) does not boycott energy companies; and ii) will not boycott energy companies during the term of this Agreement. 14.16. Consents and Approvals. Any approval or consent required of the City or the Director under the Loan Documents is for the purposes of administering the City Funding for City's benefit only and does not constitute any type of warranty or guaranty to Owner that the plans, specifications, contracts or items of a similar nature for which approval or consent is sought is free from error, in compliance with Applicable Law or fit for the Owner's purpose. Owner acknowledge that neither the City nor the Director is an engineer, or an architect and that Owner is required to rely on its own architect, contractors and engineers in performance and monitoring of the Work hereunder. To the extent that any condition or provision of this Agreement or any other Loan Documents is subject to the approval or consent of the City or the Director and such consent is not expressly required to be "reasonable", such consent or approval may be granted or denied within the sole and absolute discretion of the City or the Director, as applicable. In all cases, any approval or consent required by the City or Director shall not be effective unless such consent or approval is in writing. [SIGNATURES TO APPEAR ON THE FOLLOWING PAGE] Resolution No. 04-28-22-8.5 Page 88 of 164 Page 36 of 36 Section 108 Loan Agreement - LULAC OAK HILL, INC. [SIGNATURE PAGE TO LOAN AGREEMENT] OWNER CITY OF COLLEGE STATION L.U.L.A.C. OAK HILL, INC. By: By: City Manager Printed Name: Date: Title: Date: APPROVED: ____________________________________ City Attorney Date: ___________ Assistant City Manager/CFO Date: _____________ Resolution No. 04-28-22-8.5 Page 89 of 164 Exhibit A Property Description 1105 Anderson Street, College Station, Texas A000701, CRAWFORD BURNETT (ICL), TRACT 147.1, 5.41 ACRES, & ASSOCIATED BPP Resolution No. 04-28-22-8.5 Page 90 of 164 Exhibit B Project Budget Sources and Uses: This project will be carried out entirely utilizing the Section 108 funding. Construction Building Rehabilitation $ 1,941,243 Professional Fees General Requirements $ 116,475 Overhead $ 116,475 Profit $ 38,825 Construction Contingency $ 220,000 Architectural $ 30,000 Survey $ 5,000 Engineering $ 10,000 Permits $ 10,000 Inspections $ 20,000 Bond $ 25,000 Environmental $ 5,000 Other Soft Costs Accounting $ 15,000 Legal $ 30,000 Total/Recording $ 40,000 Soft Cost Contingency $ 60,000 Relocation Relocation Costs $ 75,000 Developer Fee Developer Fee $ 50,000 Total Project Cost $ 2,808,018 Resolution No. 04-28-22-8.5 Page 91 of 164 Exhibit to Section 108 Loan Agreement – LULAC Oak Hill, Inc. Exhibit C Scope of Work Resolution No. 04-28-22-8.5 Page 92 of 164 Resolution No. 04-28-22-8.5 Page 93 of 164 Resolution No. 04-28-22-8.5 Page 94 of 164 Resolution No. 04-28-22-8.5 Page 95 of 164 Resolution No. 04-28-22-8.5 Page 96 of 164 Exhibit to Section 108 Loan Agreement – LULAC Oak Hill, Inc. Exhibit D Construction Schedule To be determined upon approval by Texas Attorney General Resolution No. 04-28-22-8.5 Page 97 of 164 Appendix A “Applicable Law” Section 1 Title VI of The Civil Rights Act of 1964 Owner shall comply with Title VI of the Civil Rights Act of 1964 (P.L. 88-352) ("Title VI") and with Title 24 Code of Federal Regulations (CFR) Part 1, which implements Title VI. In accordance with Title VI, no person in the United States shall, on the basis of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under any program or activity for which Owner receives federal financial assistance. Owner will immediately take any measures necessary to comply with Title VI. If any real property or structure thereon is provided or improved with the aid of federal financial assistance, this clause shall obligate Owner, or in the case of any transfer of such property, any transferee, to comply with the requirements and restrictions contained in this clause for the period during which the real property or structure is used for a purpose for which the federal financial assistance is extended or for another purpose involving the provision of similar services or benefits. [24 CFR § 570.601] Section 2 Section 109 of The Housing and Community Development Act of 1974 Owner shall comply with Section 109 of the Housing and Community Development Act of 1974 ("Section 109") and implementing federal regulations, 24 CFR § 570.602, issued pursuant to Section 109. No person in the United States shall, on the basis of race, color, national origin, or sex, be excluded from participation in, be denied benefits of, or be subjected to discrimination under any program or activity funded in whole or in part with community development funds. Section 109 also prohibits discrimination on the basis of age under the Age Discrimination Act of 1975 (42 U.S.C. 6101 et seq.) or with respect to any otherwise qualified handicapped individual as provided in section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794). [24 CFR § 570.602] Section 3 Environmental Standards Owner understands that it does not assume the environmental responsibilities referenced at 24 CFR Part 58. [24 CFR § 570.604] Section 4 National Flood Insurance Program If applicable, this Agreement is subject to the requirements of the Flood Disaster Protection Act of 1973 (42 U.S.C. part 91) and the regulations in 44 CFR § parts 59 through 79 apply hereto. Without limitation, for areas identified by HUD as having special flood hazards, the use of any funds provided for acquisition or construction in identified areas shall be subject to the Mandatory Purchase of Flood Insurance requirements of said act. Resolution No. 04-28-22-8.5 Page 98 of 164 Any contract or agreement for the sale, lease, or other transfer of land acquired, cleared, or improved with assistance provided under this Agreement shall contain, if the land is located in an area identified by HUD as having a special flood hazard, provisions which obligate the transferee and its successors or assigns to obtain and maintain, during the life of the project, flood insurance as required under section 102(a) of the Flood Disaster Protection Act of 1973. These provisions shall be required notwithstanding the fact that the construction on the land is not itself funded with funds provided under this Agreement. [24 CFR § 570.605] Section 5 Displacement, Relocation, Acquisition Owner understands that projects funded hereunder are subject to the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (URA) (42 U.S.C. 4601-4655). Without limitation, the act provides that individuals or businesses that are required to move from real property, permanently or involuntarily as a direct result of rehabilitation, demolition, or acquisition for the project assisted hereunder must be compensated pursuant to the URA. [24 CFR § 570.606] Section 6 Section 3 Of The Housing And Urban Development Act Of 1968 (The work to be performed under this contract is subject to the requirements of section 3 of the Housing and Urban Development Act of 1968, as amended, 12 U.S.C. 1701u (section 3). The purpose of section 3 is to ensure that employment and other economic opportunities generated by HUD assistance or HUD-assisted projects covered by section 3, shall, to the greatest extent feasible, be directed to low- and very low-income persons, particularly persons who are recipients of HUD assistance for housing. The parties to this contract agree to comply with HUD's regulations in 24 CFR Part 135, which implement section 3. As evidenced by their execution of this contract, the parties to this contract certify that they are under no contractual or other impediment that would prevent them from complying with the part 135 regulations. Owner agrees to send to each labor organization or representative of workers with which Owner has a collective bargaining agreement or other understanding, if any, a notice advising the labor organization or workers' representative of Owner's commitments under this section 3 clause, and will post copies of the notice in conspicuous places at the work site where both employees and applicants for training and employment positions can see the notice. The notice shall describe the section 3 preference, shall set forth minimum number and job titles subject to hire, availability of apprenticeship and training positions, the qualifications for each; and the name and location of the person(s) taking applications for each of the positions; and the anticipated date the work shall begin. Owner agrees to include this section 3 clause in every subcontract subject to compliance with regulations in 24 CFR part 135, and agrees to take appropriate action, as provided in an applicable provision of the subcontract or in this section 3 clause, upon a finding that the subcontractor is in violation of the regulations in 24 CFR part 135. Owner will not subcontract Resolution No. 04-28-22-8.5 Page 99 of 164 with any subcontractor where Owner has notice or knowledge that the subcontractor has been found in violation of the regulations in 24 CFR part 135. Owner will certify that any vacant employment positions, including training positions, that are filled (1) after Owner is selected but before the contract is executed, and (2) with persons other than those to whom the regulations of 24 CFR part 135 require employment opportunities to be directed, were not filled to circumvent Owner's obligations under 24 CFR part 135. Noncompliance with HUD's regulations in 24 CFR part 135 may result in sanctions, termination of this contract for default, and debarment or suspension from future HUD assisted contracts. Section 7 Executive Order 11246, as amended Owner will not discriminate against any employee or applicant for employment because of race, color, religion, sex, or national origin. Owner will take affirmative action to ensure that applicants are employed, and the employees are treated during employment, without regard to their race, color, religion, sex, or national origin. Such action shall include, but not be limited to, the following: employment, upgrading, demotion or transfer, recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. Owner agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided by the City setting forth the provisions of this nondiscrimination clause. Owner will, in all solicitations or advertisements for employees placed by or on behalf of Owner, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, or national origin. Owner will send to each labor union or representative of workers with which Owner has a collective bargaining agreement or other contract or understanding, a notice to be provided by the City, advising the labor union or workers' representative of Owner's commitments under Section 202 of Executive Order 11246 of September 24, 1965, as amended, and shall post copies of the notice in conspicuous places available to employees and applicants for employment. Owner will comply with all provisions of Executive Order 11246 of September 24, 1965, as amended, and of the rules, regulations, and relevant orders of the Secretary of Labor set forth at 41 CFR § 60. Owner will furnish all information and reports required by Executive Order 11246 of September 24, 1965, as amended, and by the rules, regulations and orders of the Secretary of the U.S. Department of Labor for purposes of investigation to ascertain compliance with such rules, regulations, and orders. In the event of Owner's noncompliance with the nondiscrimination clauses of this Agreement or with any of such rules, regulations or orders, this Agreement may be canceled, terminated or Resolution No. 04-28-22-8.5 Page 100 of 164 suspended in whole or in part and Owner may be declared ineligible for further government contracts in accordance with procedures authorized in Executive Order 11246 of September 24, 1965, as amended, and such other sanctions may be imposed and remedies invoked as provided in Executive Order 11246 of September 24, 1965, as amended, or by rule, regulation, or order of the Secretary of the U.S. Department of Labor, or as otherwise provided by law. Owner will include provisions similar to paragraph A through F in every subcontract or purchase order unless exempted by rules, regulations, or orders of the Secretary of the U.S. Department of Labor, issued pursuant to Section 204 of Executive Order 11246 of September 24, 1965, as amended, so that such provisions will be binding upon subcontractors or vendors. Owner will take such action with respect to any subcontract or purchase order as the City may direct as a means of enforcing such provisions including sanctions for noncompliance: PROVIDED, however, that in the event Owner becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of such direction by the City, Owner may request the United States to enter into such litigation to protect the interests of the United States. (24 CFR § 570.607] To the extent they are otherwise applicable, Owner will also comply with Section 8 Lead-Based Paint Poisoning Prevention Act This agreement may be subject to the Lead-Based Paint Poisoning Prevention Act (42 U.S.C. §§ 4821-4846), the implementing regulations at 24 CFR § 35, together with the Federal Lead- Based Paint Regulation, effective September 15, 2000, implementing Title X of the Housing and Community Development Act of 1992. Specifically, this contract may be subject to the provisions for the elimination of lead-based paint hazards pursuant to said regulations, and Owner may be responsible for all required inspections and certifications. [24 CFR §570.608] Section 9 Use Of Debarred, Suspended, Or Ineligible Contractors or Subrecipients Owner shall not employ, award contracts to, or otherwise engage the services of any contractor or subcontractor during any period of debarment, suspension, or placement in ineligibility status under provisions of 24 CFR §24 or under the authority of the City. Owner shall not use CDBG funds for any contract for the construction, alteration or repair of the project funded under this agreement with any contractor or subcontractor of a foreign country, or any supplier of products of a foreign country, that is identified by the Office of the United States Trade Representative as discriminating against U.S. firms in conducting procurement for public works projects. This restriction covers, without limitation, all architectural, engineering and construction services, and includes all products or goods, except construction equipment or vehicles used during the construction, alteration or repair which do not become part of a delivered structure, product or project. (24 CFR § 570.609] Resolution No. 04-28-22-8.5 Page 101 of 164 Section 10 Uniform Administrative Requirements And Cost Principles Owner shall comply with the policies, guidelines, and requirements of 2 CFR Part 200 “Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards”. Section 11 Conflict Of Interest In the procurement of supplies, equipment, construction, and services by the City or a subrecipient, the conflict of interest provisions in 24 CFR § 84 and 85 respectively, shall apply. In all cases not governed by 24 CFR § 84 and 85, the following shall apply: In all cases not governed by 24 CFR § 84 and 85, the provisions of this section shall apply. Such cases include the acquisition and disposition of real property and the provision of assistance by the recipient, by its subrecipients, or to individuals, businesses or other private entities under eligible activities which authorize such assistance (e.g. rehabilitation, preservation, and other improvements of private properties or facilities pursuant to §570.202, or grants, loans and other assistance to businesses, individuals and other private entities pursuant to §570.203, § 570.204 or §570.455. (i) In accordance with 24 CFR § 570.611, no persons described in paragraph (ii) (below) who exercise or have exercised any functions with respect to CDBG activities or who are in a position to participate in a decision-making process or gain inside information with regard to CDBG assisted activities, may obtain a personal or financial interest or benefit from, or have any interest in any contract, subcontract, or agreement or the proceeds thereunder, either for themselves or those with whom they have family or business ties, during their tenure or for one year thereafter. (ii) The requirements of paragraph (i) apply to any person who is an employee, agent, consultant, officer, or elected or appointed official of the City, of any designated public agency, or subrecipient under which receives funds under the CDBG grant agreement with HUD. [24 CFR § 570.611] Section 12 Executive Order 12372 Owner understands that implementing regulations at 24 CFR § 52 are applicable to planning or construction of water or sewer facilities only, and that such regulation does not impart any responsibility upon it, rather the regulation imposes the Executive Order Review Process upon the City when funds are proposed for activities subject to review. [24 CFR § 570.612] Section 13 Eligibility for Certain Resident Aliens Resolution No. 04-28-22-8.5 Page 102 of 164 Owner understands that certain newly legalized aliens, as described in 24 CFR § 49, are not eligible to apply for benefits under activities meeting the requirements of section § 570.208 that either (1) have income eligibility requirements limiting the benefits exclusively to low and moderate income persons or are targeted geographically are otherwise to primarily benefit low and moderate income persons (excluding activities serving the public at large, such as sewers, roads, sidewalks, and parks), and that provide benefits to persons on the basis of application. Owner further understands that this restriction applies to covered activities funded under the Housing and Community Development Act of 1974, as amended; and that "benefits" under this section means financial assistance, public services, jobs, and access to new rehabilitated housing and other facilities made available under covered activities funded by the Comm unity Development Block Grant Program. Benefits do not include relocation services and payments to which displaces are entitled by law. Furthermore, these restrictions apply only to applicants for new benefits not being received by covered resident aliens as of the effective date of this section. Compliance can be accomplished by obtaining certification as provided in 24 CFR § 49.20. [24 CFR §570.613] Section 14 Findings Confidential All reports, information, data, etc., prepared or assembled by Owner for purposes of meeting program requirements are confidential and Owner agrees that they shall not be made available to any individual or organization, other than an agency of the United States Government, without the prior approval of the City. Section 15 Court Actions Owner agrees to give the City immediate notice in writing of any actions or suits filed and prompt notices of any claims made against the City, Owner, or any of the parties involved in the implementation and administration of this Agreement. Section 16 Records For Audit Purposes Without limitation to any other provision of this Agreement Owner shall maintain all records concerning the program or project financed under this Agreement which the City reasonably requires for four years from the expiration date of the Agreement unless a longer period is required under 24 CFR § 570.502. Owner will give the City, HUD, the Comptroller General of United States, the General Accounting Office, or any of their authorized representatives access to and the right to examine, copy, or reproduce all records pertaining to the acquisition and construction of the project and the operation of the program or project. The right to access shall continue as long as the records are required to be maintained. Section 17 Compliance With Clean Air And Water Acts Resolution No. 04-28-22-8.5 Page 103 of 164 This Agreement is subject to the requirements of the Clean Air Act, as amended (42 U.S.C . 7400 et seq.), the Federal Water Pollution Control Act, as amended (33 U.S.C. 1251 et seq.) and the regulations of the Environmental Protection Agency, 40 CFR § 15. In compliance with the regulations, Owner agrees that: A. No facility to be utilized in the project or program is listed on the list of Violating Facilities issued by the U.S. Environmental Protection Agency (EPA) pursuant to 40 CFR § 15.20. B. Owner will comply with all the requirements of section 114 of the Clean Air Act, as amended, (42 U.S.C. 7414) and section 308 of the Federal Water Pollution Control Act, as amended, (33 U.S.C. 13I8) pertaining to inspection, monitoring, entry, reports, and information, as well as all other requirements specified in section 114 and section 308, and all regulations and guidelines issued thereunder. C. As a condition for the award of this Agreement, Owner shall give prompt notice to the City of any notification received from the Director, Office of Federal Activities, EPA, indicating that a facility utilized or to be utilized is under consideration to be listed on the EPA List of Violating Facilities. D. Owner will include or cause to be included the requirements contained in paragraphs A through C of this clause in every lower-tier nonexempt contract and will take such action as the City may direct as a means of enforcing such provisions. In no event shall any amount of the funds provided under the Agreement be utilized with respect to a facility which has given rise to a conviction under section 113(c)(l) of the Clean Air Act or section 309(c) of the Federal Water Pollution Control Act. Section 18 Architectural Barriers Act and The Americans with Disabilities Act The Architectural Barriers Act of I 968 (42 U.S.C. 4151-4157) requires certain Federal and Federally funded buildings and other facilities to be designed, constructed, or altered in accordance with standards that ensure accessibility to, and use by, physically handicapped people. A building or facility designed, constructed or altered with funds allocated or reallocated under this part after December 11, 1995, and that meets the definition of "residential structure" as defined in 24 CFR or the definition of "building" as defined in 41 CFR 101-19.602(a) is subject to the requirements of the Architectural Barriers Act of 1968 (42 U.S.C. 4151-4157) and shall comply with the Uniform Federal Accessibility Standards (Appendix A to 24 CFR Part 40 for residential structures, and Appendix A to 41 CFR Part 101-19, Subpart 101- 19.6, for general type buildings) . The Americans with Disabilities Act (42 U.S.C. 12131; 47 U.S.C. 155, 201, 218 and 225) (ADA) provides comprehensive civil rights to individuals with disabilities in the areas of employment, public accommodations, State and local government services, and telecommunications. It further provides that discrimination includes a failure to design and Resolution No. 04-28-22-8.5 Page 104 of 164 construct facilities for first occupancy no later than January 25, 1993 that are readily accessible to and usable by individuals with disabilities. Further, the ADA requires the removal of architectural barriers and communication barriers that are structural in nature in existing facilities, where such removal is readily achievable--that is, easily accomplished and able to be carried out without much difficulty or expense. [24 CFR § 570.614] Section 19 Audit Requirements Limited Scope Audit - Owner understands that Non-Federal entities that expend less than $500,000 a year in Federal awards are exempt from Federal audit requirements for that year, but records must be available to review and audit as described hereinabove at Section 16. Owner further understands that limited scope audits can and may be required by the City for Non-Federal entities that expend less than $500,000. If the City requires such limited scope audits, same shall be performed in accordance with Office of Management and Budget (OMB) Circular A-133 - "Audits of States, Local Governments, and Non-Profits" which rescinds Circular A-128, Audits of State and Local Governments (codified at 24 CFR Part 45) and it supersedes the prior Circular A-133, "Audits of Institutions of Higher Education and Other Non-Profit Institutions”, issued April 22, 1996 (codified at 24 CFR Part 44). Single Audit - Owner further understands that Non-Federal entities that expend $500,000 or more a year in Federal awards shall have a single audit conducted pursuant to A-133, except when they elect to have a program-specific audit pursuant to and as described in A-133. Prior arrangements must be made to conduct such audit. Once the Contract is executed, Owner understands that it is barred from considering such audit and must have a single audit conducted as described hereinabove. Section 20 Labor Standards/Davis-Bacon Act To the extent applicable, Owner shall comply with the Federal wage requirements for federally-assisted construction projects pursuant to the Davis-Bacon Act (40 U.S.C. 327, et seq.), as amended. [24 CFR § 570.603]. Resolution No. 04-28-22-8.5 Page 105 of 164 Appendix B “Construction Contract Requirements” 1. Davis-Bacon. Compliance with the federal labor standards provisions of the Davis- Bacon Act, as amended (40 U.S.C. §§ 276a, et seq.); compliance with the Davis- Bacon Act shall be verified through on-site inspections by representatives of the City or at the City's option, the Approved Inspectors. Each Construction Contract should include as an attachment HUD 4010 Federal Labor Provisions and HUD Handbook 1344 -Davis Bacon Act. In addition, each Construction Contract must require compliance with Department of Labor regulations at 29 CFR Parts 1, 3, 5, 6 and 7. 2. Release and Indemnity Provisions in Contracts. Inclusion of a release and indemnity in favor of the City in substantially the same text as set forth in this Agreement for Owner with respect to City (when the terms "Owner"/"Agreement" are used below, they encompass the terms "Contractor"/ "Contract" and "Subcontractor"/"Subcontract" "Supplier/Supply Contract" where applicable). 3. Insurance. Inclusion of the requirement that the contractor, subcontractor, or supplier maintain insurance in sufficient form necessary to protect the Project, but in no event less that Owner is required to maintain pursuant to this Agreement. 4. Disputes. All disputes concerning the quantity, quality and completion or sufficiency of work performed or materials supplied pursuant to the Approved Construction Contract shall be submitted to the Director for resolution, and the Director may order the parties to mediation, at their option, to attempt to resolve the dispute in accordance the Agreement. The Director may declare a default under the Loan if any dispute referred to mediation is not resolved within thirty (30) days after submission to non-binding mediation, unless the City shall be protected in accordance with the Agreement. The Approved Construction Contract and each subcontract will include a requirement that the Director shall have the authority to require any disputes thereunder be submitted to nonbinding mediation, but nothing shall require the City to participate in such mediation. Neither the decision of the Director nor the issuance of a Certificate of Completion shall be construed to release the Borrower , Owner or any surety from liability under any bond, warranty or guaranty to be provided under this Agreement. 5. Compliance With Minimum Property and Rehabilitation Standards. The Approved Construction Contract shall provide that the entire Project be constructed or brought up to the standards required by the City's Minimum Property Standards being all applicable local codes, construction standards, ordinances, and zoning ordinances. 6. Audit Rights. Each Construction Contract and subcontract shall contain provisions granting HUD and the City the right to review, audit and monitor any construction contracts and subcontracts. 7. Penalties. Each Construction Contract and subcontract shall include a clause that failure to adequately perform under the contract may result in penalties including the possibility of debarment from future HUD or City work. Resolution No. 04-28-22-8.5 Page 106 of 164 Appendix C “Lobbying Certificate” The undersigned certifies, to the best of his or her knowledge and belief, that: 1. No Federally appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person 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 the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement and the extension, continuation, renewal, amendment or modification of any Federal contract, grant, loan or cooperative agreement. 2. If any funds, other than Federally appropriated funds, have been paid or will be paid to any person 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 Federal contract, grant, loan or cooperative agreement, the undersigned shall complete and submit Standard Form-LLL, "Disclosure Form to Report Lobbying", in accordance with its instructions . 3. This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certificate is a prerequisite for making or entering into this transaction imposed by Section 1352, Title 31, U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000.00 and not more than $100,000.00 for each such failure. OWNER L.U.L.A.C. OAK HILL, INC. By: Printed Name: Title: Date: Resolution No. 04-28-22-8.5 Page 107 of 164 Appendix D “Debarment Certification” The undersigned certifies to the best of its knowledge and belief that it and its principals: 1. Are not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from covered transactions by any Federal, State or local government or agency; 2. Have not within a three (3) year period preceding this proposal been convicted of or had a civil judgment rendered against them for commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (Federal, State or local) transaction or contract under a public transaction: violation of Federal or State antitrust statutes or commission of embezzlement , theft, forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen property; 3. Are not presently indicted for or otherwise criminally or civilly charged by a government entity (Federal, State or local) with commission of any of the offenses enumerated in Paragraph (b) of this certification; and 4. Have not within a three (3) year period preceding this application/proposal had one or more public transactions (Federal, State or local) terminated for cause or default. I understand that a false statement on this certification may be grounds for rejection of this proposal or termination of the award. In addition, under 18 USC Sec. 1001, a false statement may result in a fine of up to $10,000.00 or imprisonment for up to five (5) years, or both. OWNER L.U.L.A.C. OAK HILL, INC. By: Printed Name: Title: Date: Resolution No. 04-28-22-8.5 Page 108 of 164 Assignment of Architect’s Contract, Plans, and Specifications, and Consent FOR VALUE RECEIVED, executed by L.U.L.A.C. Oak Hill, Inc., a Texas non-profit corporation (“Owner”), whose mailing address is _________________________, Attention:__________, as additional security for the obligations incurred and to be incurred pursuant to that certain Loan Agreement of even date (the “Loan Agreement”), and THE CITY OF COLLEGE STATION (the “City”), whose mailing address is 1101 Texas Avenue, College Station, Texas 77840, Attention: Director, which Agreement evidences that certain loan made by the City to Owner in the original principal amount of $2,808,000.00 (the “Loan”) the proceeds of which were loaned to Owner for the construction and rehabilitation of the project located at 1105 Anderson, College Station, Texas 77840 (the “Project”), together with a Security Agreement and Financing Statement cover the Project, hereby transfers, assigns, and conveys to City, and the successors and assigns of City, all of the right, title, and interest of Owner in and to that certain professional services contract between Owner and _______________ (“Architect”), dated ______________, (the “Contract”) and in and to those certain architectural drawings and plan (the “Plans”) and the Contract Specifications (the “Specifications”) therefor, all inclusive, all of which were prepared by Architect, a true and correct copy of the Contract, Plans and Specifications having been deposited with and held by City. Upon the payment and satisfaction in full of the obligations of Owner to City evidenced by the Loan Agreement and upon written confirmation by City of such payment and satisfaction, this Assignment of Architect’s Contract, Plans, and Specifications and Consent (this “Assignment”) shall become null and void. Owner and Architect, by executing the Consent to this Assignment which follows this Assignment, agree that City does not assume any of Owner’s obligations or duties concerning the Contract, Plans and Specifications, including but not limited to the obligation to pay for the preparation of the Contract, Plans, and Specifications, until and unless City shall exercise its rights, loaned hereby, to the use of the Contract, Plans, and Specifications. Owner hereby irrevocably constitutes and appoints City as its attorney-in-fact to demand, receive and enforce Owner’s rights with respect to the Contract, Plans and Specifications, to give appropriate receipts, releases and satisfactions for and on behalf of Owner and to do any and all acts in the name of Owner or in the name of City with the same force and effect as Owner could do if this Assignment had not been made. City shall not exercise any rights hereunder unless a Default, as is defined in the Loan Agreement, shall have occurred. Except as previously disclosed to City in writing Owner hereby represents and warrants to City that no other previous assignment of its interest in the Contract, Plans, and Specifications has been made; and Owner agrees not to assign, sell, pledge, transfer, mortgage or otherwise encumber its interest in the Contract, Plans, and Specifications so long as this Assignment is in effect. [OWNER’S SIGNATURE PAGE TO FOLLOW] Resolution No. 04-28-22-8.5 Page 109 of 164 Owner’s Signature Page Assignment of Architect’s Contract, Plans, and Specifications, and Consent Dated to be effective as of __________________. Owner: L.U.L.A.C. Oak Hill, Inc., a Texas nonprofit corporation By:_________________________ Name: ______________________ Title:_______________________ [ARCHITECT’S CONSENT TO FOLLOW] Resolution No. 04-28-22-8.5 Page 110 of 164 Consent of Architect Assignment of Architect’s Contract, Plans, and Specifications, and Consent The undersigned (“Architect”) represents to City that the Contract with Owner is in full force and effect and is valid, binding and enforceable against Architect in accordance with the terms and there is no default by Architect thereunder. Architect hereby expressly consents to the above and foregoing Assignment and agrees that, in the event of any default by Owner under the Loan Agreement, City is authorized to use the Contract, Plans, and Specification for the purpose of the inspection or completion of the construction and/or renovation of the Project and for the maintenance and protection of the Project contemplated by the Loan Agreement. To induced City to enter into the Loan Agreement with Owner, Architect hereby agrees that all of the liens which Architect may have or be entitled to either against such Contract, Plans and Specifications or against the Project contemplated by the Loan Agreement (including the real property where the Project is located) shall be and are hereby made subordinate and inferior to the liens and security interests securing the payment of the Loan. Architect acknowledges that City is relying on and is entitled to rely on Architect’s professional skill and competence in the provision of its services under the Contract. Dated to be effective as of __________________. Architect: ______________________ By:_________________________ Name: ______________________ Title:_______________________ Resolution No. 04-28-22-8.5 Page 111 of 164 Environmental Indemnity Agreement This Environmental Indemnity Agreement ("Environmental Indemnity Agreement") is executed to be effective as of_____________________, by L.U.L.A.C. Oak Hill, Inc., a Texas nonprofit corporation ("Indemnitor") for the benefit of The City of College Station, Texas ("City"). Background WHEREAS, City is issuing a loan ("Section 108 Loan") to Owner in the original principal amount of TWO MILLION EIGHT HUNDRED EIGHT THOUSAND AND 00/100 DOLLARS ($2,808,000.00 ), further evidenced by that certain Loan Agreement entered into by and between City and Owner ("Loan Agreement") for the construction and/or rehabilitation project located on property described on Exhibit A (the “Property), secured, inter alia, by certain Loan Agreement documents. The Loan Agreement, the collateral assignments of various contracts, this Environmental Indemnity Agreement and all other documents or instruments evidencing, securing or governing the Section 108 Loan shall be collectively referred to as the "City Loan Documents"; and WHEREAS, as a material inducement in order for City to issue the Section 108 Loan to Indemnitor, Indemnitor has agreed to execute and deliver this Environmental Indemnity Agreement to and for the benefit of City. NOW, THEREFORE, for and in consideration of the issuing of the Section 108 Loan and Grants by City to Indemnitor, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged and confessed, Indemnitor hereby agrees as follows: Agreement Section 1. Definitions The following terms shall have the defined meanings ascribed to such terms, as set forth below: "Environmental Laws" shall mean 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 Property, including without limitation, the following , as now or hereafter amended: Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA"), 42 U.S.C. § 9601 et seq.; Resource, Conservation and Recovery Act ("RCRA") , 42 U.S.C. § 6901 et seq. as amended by the Superfund Amendments and Reauthorization Act of 1986 ("SARA"), Pub. L. 99-499, 100 Stat. 1613; the Toxic Substances Control Act, 15 U.S.C. § 2601 et seq.; Emergency Planning and Community Right to Know Act of 1986, 42 U.S.C. § 1101 et seq.; Clean Water Act ("CWA"), 33 U.S.C. § 1251 et seq.; Clean Air Act ("CAA"), 42 U.S.C. § 7401 et seq.; Federal Water Pollution Control Act ("FWPCA"), 33 Resolution No. 04-28-22-8.5 Page 112 of 164 U.S.C. § 1251 et seq.; 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, statutes and regulations, as such statutes, regulations, rules, guidelines, and standards are amended from time to time. "Hazardous Substances" shall mean any substance, product, waste, or other material which is or becomes listed, regulated, or addressed as being a toxic, hazardous, polluting, or similarly harmful substance under any Environmental Law, including without limitation: (i) any substance included within the definition of "hazardous waste" pursuant to Section 1004 of RCRA; (ii) any substance included within the definition of "hazardous substance" pursuant to Section 101 of CERCLA; (iii) any substance included within (a) the definition of "regulated substance" pursuant to Section 26.342(9) of TWC; or (b) the definition of "hazardous substance" pursuant to Section 361.003(13) of THSC; (iv) asbestos; (v) polychlorinated biphenyls; (vi) petroleum products; (vii) underground storage tanks, whether empty, filled or partially filled with any substance; (viii) any radioactive materials, urea formaldehyde foam insulation or radon; (ix) any substance included within the definition of "waste" pursuant to Section 30.003(b) of TWC or "pollutant" pursuant to Section 26.001(13) of TWC; and (x) any other chemical, material or substance, the exposure to which is prohibited, limited or regulated by any Governmental Authority on the basis that such chemical, material or substance is toxic, hazardous or harmful to human health or the environment. "Hazardous Substances Contamination" shall mean the contamination (whether presently existing or hereafter occurring) of the improvements, facilities, soil, groundwater, air or other elements on or of the Property by Hazardous Substances, or the contamination of the buildings, facilities, soil, groundwater, air or other elements on or of any other property as a result of Hazardous Substances at any time (whether before or after the date of the Note) emanating from the Property. "Initial Environmental Report" means the Phase I Environmental Site Assessment dated ____________, prepared by _______________, and bearing Project No._____________, covering the Property, and all documents reflecting any Phase II assessments and any curative actions required and/or taken thereunder. Section 2. Representations and Warranties Indemnitor unconditionally represents and warrants to City as follows: (a) To Indemnitor's knowledge, except as otherwise set forth in the Initial Environmental Report, the Property does not contain any Hazardous Substances, and the Property is not subject to any Hazardous Substances Contamination. (b) To Indemnitor's knowledge, except as otherwise set forth in the Initial Environmental Report, the Property and the operations conducted thereon do not violate any Environmental Laws. (c) To Indemnitor's knowledge, all notices, permits, licenses, or similar authorizations, if any, required to be obtained or filed in connection with the ownership, operation, or use of the Property, Resolution No. 04-28-22-8.5 Page 113 of 164 including, without limitation, the past or present generation, treatment, storage, disposal, or release of any Hazardous Substances into the environment, have been duly obtained or filed. (d) Except as otherwise set forth in the Initial Environmental Report, neither Indemnitor nor, to the best knowledge of Indemnitor, any other person, including, but not limited, to any predecessor owner, tenant, licensee, occupant, user, or operator of all or any portion of the Property, has ever undertaken, caused, permitted, authorized, or suffered the presence, use, manufacture, handling, generation, transportation, storage, treatment, discharge, release, burial, or disposal on, under, from or about the Property of any Hazardous Substances or the transportation to or from the Property of any Hazardous Substances. (e) Except as otherwise set forth in the Initial Environmental Report, to Indemnitor's knowledge, (i) no property adjoining the Property is or has ever been used for the disposal, storage, treatment, processing, manufacturing or other handling of Hazardous Substances, nor, (ii) is any other property adjoining the Property affected by Hazardous Substances Contamination. (f) Neither Indemnitor nor, to the best knowledge of Indemnitor, any other person, including, but not limited, to any predecessor owner, tenant, licensee, occupant, user, or operator of all or any portion of the Property, has ever undertaken, caused, permitted, authorized, or suffered the presence, use, manufacture, handling, generation, transportation, storage, treatment, discharge, release, burial, or disposal of any Hazardous Substances on, under, from or about any other real property, all or any portion of which is legally or beneficially owned (or any interest or estate therein which is owned) by Indemnitor in any jurisdiction now or hereafter having in effect a so- called "superlien" law or ordinance or any part thereof, the effect of which law or ordinance would be to create a lien on the Property to secure any obligation in connection with the "superlien" law of such other jurisdiction. (g) To Indemnitor's knowledge, no inquiry, investigation, administrative order, consent order and agreement, litigation or settlement is proposed, threatened, anticipated or in existence with respect to any allegations that there has been, there is currently, or there is a threat of a presence, release, threat of release, placement of any Hazardous Substances on, under, from or about the Property, or the manufacture, handling, generation, transportation, storage, treatment, discharge, burial, or disposal of any Hazardous Substances on, under, from or about the Property, or the transportation of any Hazardous Substances to or from the Property. Indemnitor has not received any notice, and has no actual or constructive knowledge, that any governmental authority has determined, or threatens to determine, or is investigating any allegations that there has been, there is currently, or there is a threat of a presence, release, threat of release, placement of any Hazardous Substances on, under, from or about the Property, or the manufacture, handling, generation, transportation, storage, treatment, discharge, burial, or disposal of any Hazardous Substances on, under, from or about the Property, or the transportation of any Hazardous Substances to or from the Property. (h) Indemnitor has taken all steps reasonably necessary to determine that no Hazardous Substances have been generated, treated, placed, held, located, or otherwise released on, under, from, or about the Property. Resolution No. 04-28-22-8.5 Page 114 of 164 (i) The foregoing representations and warranties do not apply to Permitted Use Substances (hereinafter defined). Section 3. Covenants Indemnitor unconditionally covenants that and agrees with City as follows: (a) Indemnitor will not use, generate, manufacture, produce, store, release, discharge, treat, or dispose of on, under, from or about the Property or transport to or from the Property any Hazardous Substances or allow any other person or entity to do so. Notwithstanding the foregoing, reasonable quantities of such Hazardous Substances as are customarily used in the construction, habitation, maintenance and/or operating of an apartment project, properly used and/or stored, shall be permitted (collectively, the "Permitted Use Substances") (b) Indemnitor will keep and maintain the Property in compliance with, and shall not cause or permit the Property to be in violation of, any Environmental Law. (c) Indemnitor will establish and maintain, at Indemnitor's sole expense, a system to assure and monitor continued compliance with Environmental Laws and the exclusion of Hazardous Substances from the Property, by any and all owners or operators, including tenants, of the Property, which system shall include annual reviews of such compliance by employees or agents of Indemnitor who are familiar with the requirements of the Environmental Laws and, at the request of City no more than once each year, a detailed review of such compliance of the environmental condition of the Property (the "Environmental Report") in scope satisfactory to City by an environmental consulting firm approved in advance by City; provided, however, that if any Environmental Report indicates any violation of any Environmental Laws or a need for remedial work ("Remedial Work"), such system shall include at the request of City a detailed review of the status of such violation (a "Supplemental Report") by such environmental consultant. Indemnitor shall furnish an Environmental Report or such Supplemental Report to the City within sixty (60) days after City so requests, together with such additional information as City may reasonably request. (d) Indemnitor will give prompt written notices to City of: (i) any proceeding or inquiry by any governmental or nongovernmental entity or person with respect to the presence of any Hazardous Substances on, under, from or about the Property, the migration thereof from or to other property, the disposal, storage, or treatment of any Hazardous Substances generated or used on, under or about the Property, (ii) all claims made or threatened by any third party against Indemnitor or the Property or any other owner or operator, including a tenant, of the Property relating to any loss or injury resulting from any Hazardous Substances, and (iii) Indemnitor's discovery of any occurrence or condition on any real property adjoining or in the vicinity of the Property that could cause the Property or any part thereof to be subject to any investigation or cleanup of the Property pursuant to any Environmental Laws. (e) Indemnitor will permit City to join and participate in, as a party if it so elects, any legal proceedings or actions initiated with respect to the Property in connection with any Environmental Resolution No. 04-28-22-8.5 Page 115 of 164 Laws or Hazardous Substances, and Indemnitor shall pay all attorneys' fees incurred by City in connection therewith. (f) In the event that any Remedial Work is reasonably necessary or desirable, Indemnitor shall commence and thereafter diligently prosecute to completion all such Remedial Work within thirty (30) days after written demand by City for performance thereof (or such shorter period of time as may be required under any Environmental Laws). All Remedial Work shall be performed by contractors approved in advance by City, and under the supervision of a consulting engineer approved by City. All costs and expenses of such Remedial Work shall be paid by Indemnitor including, without limitation, City's reasonable attorneys' fees and costs incurred in connection with monitoring or review of such Remedial Work. In the event Indemnitor shall fail to timely commence, or cause to be commenced, or fail to diligently prosecute to completion, such Remedial Work, City may, but shall not be required to, cause such Remedial Work to be performed, and all costs and expenses thereof, or incurred in connection therewith, shall become part of the indebtedness secured by the Deed of Trust ("Indebtedness") and shall be payable to City upon demand. Section 4. Default The term "Default", as used herein, shall mean the occurrence at any time and from time to time, of any one or more of the following : (a) If either Indemnitor or City acquires knowledge or receives notice that Hazardous Substances or Hazardous Substances Contamination exists in, on, about or under any of the Property, other than Permitted Use Substances, and Indemnitor fails, within thirty (30) days after acquisition of such knowledge or of such notice, to commence and thereafter diligently prosecute to completion any necessary remedial actions in compliance with Environmental Laws. (b) If any representation or warranty contained herein shall be false or misleading, or erroneous in any material respect. Section 5. Remedies If a Default shall exist, City may, at City's sole election Exercise any and all other rights, remedies and recourses granted under the City Agreement Documents or as may be now or hereafter existing in equity or at law, by virtue of statute or otherwise, including actions for damages and specific performance Section 6. Site Assessment If City shall ever have reason to believe that there are Hazardous Substances or Hazardous Substances Contamination affecting any of the Property, other than Permitted Use Substances, City (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 Property for the purpose of determining whether there exists on the Property any environmental condition which could result in any liability, cost or expense to the owner, occupier or operator of such Resolution No. 04-28-22-8.5 Page 116 of 164 Property arising under any state, federal or local law, rule or regulation relating to Hazardous Substances. The Site Assessments may be performed at any time or times, upon reasonable notice, and under reasonable conditions established by Indemnitor which do not impede the performance of the Site Assessments. Following one (1) business days' prior notice delivered to Indemnitor, and during normal business hours, the Site Reviewers are hereby authorized to enter upon the Property for such purposes . The Site Reviewers are further authorized to perform both above and below the ground testing for environmental damage or the presence of any Hazardous Substances on the Property and such other tests on the Property as may be necessary to conduct the Site Assessments in the reasonable opinion of the Site Reviewers. Indemnitor will supply to the Site Reviewers such historical and operational information regarding the 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, City shall make the results of such Site Assessments fully available to Indemnitor, which (unless a Default exists) 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 Indemnitor upon demand of City and any such obligations shall be Indebtedness secured by the Deed of Trust. Section 7. INDEMNIFICATION REGARDLESS OF WHETHER ANY SITE ASSESSMENTS ARE CONDUCTED HEREUNDER, INDEMNITOR SHALL JOINTLY AND SEVERALLY PROTECT, INDEMNIFY, AND HOLD HARMLESS CITY, ITS DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, AGENTS, SUCCESSORS, AND ASSIGNS FROM AND AGAINST ANY AND ALL LOSS, DAMAGE, COSTS, EXPENSE, ACTION, CAUSES OF ACTION, OR LIABILITY (INCLUDING REASONABLE ATTORNEYS' FEES AND COSTS) DIRECTLY OR INDIRECTLY ARISING FROM OR ATTRIBUTABLE TO THE USE, GENERATION, MANUFACTURE, PRODUCTION, STORAGE, RELEASE, THREATENED RELEASE, DISCHARGE, DISPOSAL, OR PRESENCE OF ANY HAZARDOUS SUBSTANCES ON, UNDER, ABOUT OR FROM THE PROPERTY OCCURRING PRIOR TO OR DURING OWNER'S OWNERSHIP OF THE PROPERTY, OTHER THAN PERMITTED USE SUBSTANCES, WHETHER KNOWN OR UNKNOWN AT THE TIME OF THE EXECUTION HEREOF AND REGARDLESS OF WHETHER OR NOT CAUSED BY, OR WITHIN THE CONTROL OF INDEMNITOR, INCLUDING WITHOUT LIMITATION (I) DAMAGES FOR PERSONAL INJURY, OR INJURY TO PROPERTY OR NATURAL RESOURCES OCCURRING UPON OR OFF THE PROPERTY, FORESEEABLE OR UNFORESEEABLE, INCLUDING, WITHOUT LIMITATION, THE COST OF DEMOLITION AND REBUILDING OF ANY IMPROVEMENTS ON THE REAL PROPERTY, INTEREST AND PENALTIES; (II) THE COSTS OF ANY REQUIRED OR NECESSARY ENVIRONMENTAL INVESTIGATION OR MONITORING, ANY REPAIR, CLEANUP, OR DETOXIFICATION OF THE PROPERTY, AND THE PREPARATION AND IMPLEMENTATION OF ANY CLOSURE, REMEDIAL, OR OTHER REQUIRED PLANS INCLUDING FEES INCURRED FOR ATTORNEYS, CONSULTANTS, CONTRACTORS, EXPERTS AND LABORATORIES; AND (III) LIABILITY TO ANY THIRD PERSON OR ANY GOVERNMENTAL AUTHORITY TO Resolution No. 04-28-22-8.5 Page 117 of 164 INDEMNIFY SUCH PERSON OR GOVERNMENTAL AUTHORITY FOR COST EXPENDED IN CONNECTION WITH THE ITEMS REFERENCED IN SUBPARAGRAPH (II) IMMEDIATELY ABOVE. THIS COVENANT AND THE INDEMNITY CONTAINED HEREIN SHALL SURVIVE THE RELEASE OF THE LIEN OF THE DEED OF TRUST, OR THE EXTINGUISHMENT OF THE LIEN OF THE DEED OF TRUST BY FORECLOSURE OR ACTION IN LIEU THEREOF AND SHALL CONTINUE IN EFFECT SO LONG AS A VALID CLAIM MAY BE LAWFULLY ASSERTED AGAINST CITY. Section 8. City’s Right to Remove Hazardous Materials City shall have the right but not the obligation, without in any way limiting City's other rights and remedies under the City Loan Documents, to enter onto the 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 Substances or Hazardous Substances Contamination on the Property following receipt of any notice from any person or entity asserting the existence of any Hazardous Substances or Hazardous Substances Contamination pertaining to the Property or any part thereof which, if true, could result in an order, notice, suit, imposition of a lien on the Property or other action and/or which, in City's reasonable opinion, could jeopardize City's security under the City Agreement Documents; provided, however, City shall have no right to proceed with any of the rights loaned to it in this paragraph until City has provided Indemnitor with written notice of City's intent to take any of the actions described in this paragraph and Indemnitor fails to commence within thirty (30) days following Indemnitor's receipt of such notice and diligently proceeds thereafter to complete all action necessary to clean-up, remove or resolve any of the foregoing . All reasonable costs and expenses paid or incurred by City in the exercise of any such rights shall be included in the indebtedness secured by the City Agreement Documents and shall be payable by Indemnitor upon demand. Section 9. Miscellaneous This Environmental Indemnity Agreement are joint, several and unconditional and shall not be subject to any exculpation, non-recourse or other limitation of liability provisions in the City Loan Documents, and Indemnitor acknowledges that its obligations under this Environmental Indemnity Agreement are not limited by such exculpation, non-recourse or similar limitation of liability provisions in the City Loan Documents (if any). Those costs, damages, liabilities, losses, claims, expenses (including attorneys' fees and disbursements) for which City is indemnified hereunder shall be reimbursable to City after being paid by City, and Indemnitor shall pay such costs, expenses, damages, liabilities, losses, claims, expenses (including attorneys' fees and disbursements) to City within thirty (30) days after notice from City itemizing the amounts paid to the date of such notice. In addition to any remedy available for failure to periodically pay such amounts, such amounts shall thereafter bear interest at the Default Rate (as defined in the Note) of interest specified in the City Funding Documents. Payment by City shall not be a condition precedent to the obligations of Indemnitor under this Environmental Indemnity Agreement. Resolution No. 04-28-22-8.5 Page 118 of 164 Any notice, communication, request or other documents or demand permitted or required hereunder shall be in writing and given in accordance with the provisions of the City Loan Documents. THIS ENVIRONMENTAL INDEMNITY AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF TEXAS APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED IN TEXAS PROVIDED, HOWEVER, THAT EITHER FEDERAL LAW OR, TO THE EXTENT FEDERAL LAW DOES NOT APPLY, THE LAW OF THE SITUS OF THE PROPERTY SHALL BE APPLIED TO DETERMINE THE COMPLIANCE OF THE PROPERTY WITH ENVIRONMENTAL LAWS. PROVIDED FURTHER, THAT THE LAWS OF THE STATE IN WHICH THE PROPERTY IS LOCATED SHALL APPLY TO THE CREATION, PERFECTION, AND PRIORITY OF LIENS AND SECURITY INTERESTS AND TO ANY FORECLOSURE, TRUSTEE'S SALE, APPOINTMENT OF RECEIVER OR OTHER REMEDY WITH RESPECT TO THE PROPERTY. ANY PROCEDURES PROVIDED HEREIN FOR SUCH REMEDIES SHALL BE MODIFIED BY AND REPLACED WITH, WHERE INCONSISTENT WITH OR REQUIRED BY, ANY PROCEDURES OR REQUIREMENTS OF THE LAWS OF THE STATE IN WHICH THE PROPERTY IS LOCATED. ANY LEGAL ACTION TO INTERPRET OR ENFORCE ANY TERM OR CONDITION OF THIS ENVIRONMENTAL INDEMNITY AGREEMENT SHALL BE BROUGHT AND MAINTAINED ONLY IN THE TEXAS STATE COURTS SITUATED IN BRAZOS COUNTY, TEXAS. BY EXECUTING THIS ENVIRONMENTAL INDEMNITY AGREEMENT, INDEMNITOR EXPRESSLY (A) CONSENTS AND SUBMITS TO THE PERSONAL JURISDICTION OF SUCH TEXAS AND FEDERAL COURTS, (B) WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY CLAIM OR DEFENSE THAT BRAZOS COUNTY, TEXAS IS NOT A PROPER OR CONVENIENT VENUE OR FORUM, AND (C) CONSENTS TO THE SERVICE OF PROCESS IN ANY MANNER AUTHORIZED BY TEXAS LAW. ANY FINAL JUDGMENT ENTERED IN AN ACTION BROUGHT HEREUNDER SHALL BE CONCLUSIVE AND BINDING UPON THE PARTIES HERETO. Indemnitor waives any acceptance of this Environmental Indemnity Agreement by City. The failure of any party to enforce any right or remedy hereunder, or to promptly enforce any such right or remedy, shall not constitute a waiver thereof nor give rise to any estoppel against such party, nor excuse any of the parties from their obligations hereunder. Any waiver of such right or remedy must be in writing and signed by the party to be bound. This Environmental Indemnity Agreement is subject to enforcement at law and/or equity, including actions for damages and/or specific performance. Time is of the essence in the performance of the terms, conditions and covenants herein contained. This Environmental Indemnity Agreement shall be deemed to be continuing in nature and shall remain in full force and effect and shall survive any exercise of any remedy by City under the City Loan Documents, including foreclosure of the liens of the City Loan Documents (or deed Resolution No. 04-28-22-8.5 Page 119 of 164 in lieu thereof), even if, as part of such foreclosure or deed in lieu of foreclosure , the Loan amount is satisfied in full. All terms not defined in this Environmental Indemnity Agreement shall have the same meanings as given them in the City Loan Documents. EXECUTED to be effective as of the date first set forth above. INDEMNITOR: L.U.L.A.C. Oak Hill, Inc., a Texas nonprofit corporation By: Name: ___________ Title: _______________ Resolution No. 04-28-22-8.5 Page 120 of 164 Exhibit A (property description) Resolution No. 04-28-22-8.5 Page 121 of 164 PROMISSORY NOTE $ 2,808,000.00 Date: FOR VALUE RECEIVED, L.U.L.A.C. OAK HILL, INC., a Texas nonprofit corporation (“Obligor”), promises to pay to the order of the City of College Station, Texas, a home rule city (hereafter the "Lender"), at its offices at __________________________, or such other place as may be designated in writing by the Lender, the principal sum of TWO MILLION EIGHT HUNDRED EIGHT THOUSAND AND NO/100 DOLLARS ($2,808,000.00), plus interest at the rate set forth herein, said principal sum, together with the interest accrued and unpaid thereon, to be due and payable as set forth herein, provided that if not sooner paid, the unpaid principal sum together with the interest accrued and unpaid thereon shall be due and payable twenty years after the Effective Date (the “Maturity Date”). Effective Date. This Note shall be effective on the date of the first disbursement of funds to Obligor pursuant to the terms of this Note. Lender and Obligor agree that in the event that no funds are disbursed pursuant to this Note within 1 year of the date of execution of this Note, this Note and all obligations contemplated therein shall automatically terminate. Section 108 Note. This Note is being made from the proceeds of a loan made to the Lender and guaranteed by the Secretary of Housing and Urban Development (hereafter the "Secretary" or "HUD") under Section 108 of Title I of the Housing and Community Development Act of 1974, as amended, 24 CFR Part 570, Subpart M. (collectively the “Act”), through a Contract for Loan Guarantee Assistance dated __________________ (the “Section 108 Contract”) and pursuant to a Note numbered __________________ executed by the Lender (the “Section 108 Note”). The terms of this Note are subject in all respects to the Act, the Section 108 Contract, and the Section 108 Note. The Section 108 Note may initially be issued in the form of a variable/fixed rate interim Note, to be converted to a fixed rate permanent Note upon the Public Offering Date, as defined in the Section 108 Note. Interest Rate. The interest rate on this Note shall be the interest rate or rates applicable from time to time to advances under the Section 108 Note (as defined herein), plus 0%. Advances. Advances to be made under this Note shall be used by Obligor in connection with the rehabilitation of an apartment complex for low income elderly residents which will meet an eligible rehabilitation activity in accordance with 24 CFR 570.703(h), pursuant to 24 CFR 570.202(a)(1). Upon written request by Obligor, and as accompanied by such reasonable documentation as Lender may require, Lender shall, in its reasonable discretion, disburse advances under this Note. Payment Terms. Beginning on the first day of the first quarter after the date of the first advance of proceeds of this Note and continuing in the first day of each successive quarter thereafter until the entirety of the principal and interest has been repaid. Resolution No. 04-28-22-8.5 Page 122 of 164 2 Additional Payments. On each Section 108 Note Payment Date, the Obligor shall further pay to Lender any late charges accruing on the Section 108 Note, the sum of the expense of the Lender incurred in enforcing the obligations of the Obligor under the Loan Documents (hereinafter defined), and any other amount otherwise becoming due or past due under the Section 108 Note, including any acceleration or mandatory prepayment of principal and all accrued interest thereon pursuant to the terms of the Section 108 Note if any such occurrence is a result of a default under the Loan Documents. Form of Note. The Obligor shall make all payments, without any further notice, in lawful money of the United States of America as, at the time of payment, shall be legal tender for the payment of public and private debts, and amounts payable on any Section 108 Note Payment Date shall be payable in immediately available funds. Late Charges, Default Rate. In the event the Obligor shall fail to make any payment or deposit required by this Note for a period of more that ten (10) days from the date such payment is due, the Obligor shall pay the same together with the Late Payment Fee, with interest at the Default Rate from the date on which such payment was due until the date on which such payment is made. The “LATE PAYMENT FEE” shall be cents ($._) for each dollar ($1.00) so overdue, for the purpose of defraying the expense incident to handling such delinquent payment. The “DEFAULT RATE” shall be the higher of 3% percent plus the Prime Rate or the default rate applicable to the Section 108 Note; provided, however, that such rate shall in no event exceed the maximum rate which the Obligor may pay by law. “PRIME RATE” means such rate of interest as is published in the Wall Street Journal. Any changes in the Prime Rate shall be effective as of the opening of business on the date such charge is announced by Federal Reserve Board. Loan Documents. This Note is made pursuant to the terms of a loan agreement of even date between Obligor and Lender (“Loan Agreement”) and is secured the Deed of Trust, Assignment, Security Agreement and Fixture Filing of even date ("Deed of Trust"). The terms and provisions of the Loan Agreement and Deed of Trust are incorporated herein by this reference as if expressly set forth in this Note and together with this Note are collectively referred to as the “Loan Documents”. Default. The whole of the principal sum or any part thereof, and of any other sums of money secured by the Deed of Trust given to secure this Note shall, forthwith or thereafter, at the option of the Lender, become due and payable if default be made in any payment under this Note or upon the happening of any default which, by the terms of the Loan Documents shall entitle the Lender to declare the same, or any part thereof, to be due and payable. Maximum Rate. This Note is subject to the express condition that at no time shall the Obligor be obligated or required to pay interest on the principal balance of this Note at a rate which could subject the Lender either to civil or to criminal penalty as a result of being in excess of the maximum rate which the Obligor is permitted by law to contract or agree to pay. If by the terms Resolution No. 04-28-22-8.5 Page 123 of 164 3 of this Note the Obligor at any time is required or obligated to pay interest on the principal balance of this Note at a rate in excess of such maximum rate, then the rate of interest under this Note shall be deemed to be immediately reduced to such maximum rate and interest payable hereunder shall be computed at such maximum rate and any prior interest payments made in excess of such maximum rate shall be applied and shall be deemed to have been paid in reduction of the principal balance of this Note. In addition to the protection afforded the Lender under this Note, the Deed of Trust protects the Lender from possible losses which might result if Obligor does not fulfill covenants, conditions and restrictions contained therein. Among other things, the Deed of Trust requires that the Lender consent to any sale of the property identified in the Deed of Trust or any sale of the ownership or beneficial interests in Obligor, which consent shall not unreasonably withheld, conditioned, or delayed. Prepayment. This Note shall not be subject to prepayment, except that in the event and to the extent that the Section 108 Note is subject to prepayment, the Obligor shall be permitted to prepay this Note at the same time and in the same amount, subject to payment by Obligor of any premium and expenses required for prepayment of the Section 108 Note, upon receipt by the Lender of five (5) days prior written notice. Any partial prepayments shall be applied to principal in inverse order of maturity unless otherwise agreed by Lender. In the event of partial prepayments, there will be no changes in the due date and the amount of Obligor’s monthly payment unless Lender agrees in writing to such changes. Modification. The Note may not be changed or terminated orally, but only by agreement in writing signed by the party against whom enforcement of such change or termination is sought. Waivers; No Release. The Obligor hereby waives presentment and demand for payment, notice of dishonor, protest and notice of protest of this Note and agrees to pay all costs of collection when incurred, including reasonable attorneys’ fees (which costs may be added to the amount due under this Note and be receivable therewith) and to perform and comply with each of the terms, covenants and provisions contained in this Note and in any instrument evidencing or securing the indebtedness evidenced by this Note on the part of the Obligor to be observed and/or performed hereunder and thereunder. No release of any security for the principal sum due under this Note, or of any portion thereof, and no alteration, amendment or wavier of any provision of this Note or of any instrument evidencing and/or securing the indebtedness evidenced by this Note made by agreement between the Lender and any other person or party shall release, discharge, modify, change or affect the liability of the Obligor under this Note or under such instrument. Governing Law. This Note shall be governed by and construed in accordance with the laws of the State of Texas and no defense given or allowed by the laws of any state or country shall be interposed in any action or proceeding hereof unless such defense is also given or allowed by the laws of the State of Texas. Jurisdiction and Venue. All acts contemplated by this Note shall be performable in Brazos County, Texas, and all sums payable under this Note shall be payable in Brazos County, Texas. Lender Resolution No. 04-28-22-8.5 Page 124 of 164 4 and Obligor hereby confirm and agree that all legal actions involving the validity or enforcement of this Note shall have exclusive jurisdiction and venue in Brazos County, Texas. Terms. All references to the Lender shall be deemed to apply to any holder of this Note and the terms hereof shall be binding on the successors and assigns of the Obligor. Successors and Assigns. This Note and all of the covenants, promises and agreements contained herein shall be binding upon and shall inure to the benefit of Obligor and Lender and their respective executors, administrators, successors and assigns. Non-Recourse. Notwithstanding anything to the contrary contained in this Note or in any of the other Loan Documents, subject to Obligor meeting CDBG and HUD objectives, the Lender expressly agrees that the liability of the Obligor and/or any of the Obligor's directors, officers, shareholders, partners, representatives, agents, employees, heirs, affiliates, successors and assigns (such past, present and future members or shareholders in the Obligor, if any, and/or any of such parties' directors, officers, shareholders, partners, representatives, agents, employees, heirs, affiliates, successors and assigns are herein collectively referred to as "Obligor's Affiliates"), under any Loan Document shall be strictly and absolutely limited to the property encumbered under the Deed of Trust of even date herewith, and the leases, rents, profits and issues thereof and any other collateral securing the repayment of this Note. Lender shall not seek any deficiency judgment against Obligor, it being understood and agreed that neither Obligor nor any of its partners shall have any personal liability for the payment of the indebtedness and obligations evidenced by the Loan Documents and such indebtedness shall be considered limited recourse to Obligor. Cumulative Rights. No delay on the part of Lender or other holder of this Note in the exercise of any power or right under this Note or under any other Loan Document, shall operate as a waiver thereof, nor shall a single or partial exercise of any power or right preclude other or further exercise thereof or exercise of any other power or right. Enforcement by Lender or other holder of this Note of any Entire Agreement. THIS WRITTEN LOAN AGREEMENT (AS DEFINED BY SECTION 26.02 OF THE TEXAS BUSINESS AND COMMERCE CODE) REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES. IN WITNESS WHEREOF, the undersigned has executed this Promissory Note as of the date and year first above written. BORROWER: L.U.L.A.C. Oak Hill, Inc. A Texas nonprofit corporation By:________________________________ Resolution No. 04-28-22-8.5 Page 125 of 164 5 Name: Title: Resolution No. 04-28-22-8.5 Page 126 of 164 6 Endorsement Pay to the order of without recourse. By: Signature Name: Title: Resolution No. 04-28-22-8.5 Page 127 of 164 DEED OF TRUST, ASSIGNMENT, SECURITY AGREEMENT AND FIXTURE FILING (WITH ASSIGNMENT OF RENTS AND OTHER RIGHTS) This Deed of Trust, Assignment, Security Agreement and Fixture Filing (with Assignment of Rents and Other Rights) ("Deed of Trust") is executed to be effective as of ________ , 2021 by L.U.L.A.C. Oak Hill, Inc., a Texas nonprofit corporation, whose address is, _______________________________ (the "Grantor," whether one or more), to _____________, Trustee ("Trustee") for the benefit of CITY OF COLLEGE STATION, TEXAS ("Beneficiary"), whose address is 1101 Texas Avenue, College Station, Texas. Article 1. Definitions 1.1. Definitions: The following capitalized words and terms as used in this Deed of Trust have the following meaning (and their use includes the singular or plural): (a) Affiliate: Any person or entity which directly or indirectly through one or more intermediaries controls, is controlled by or is under common control with Grantor. (b) Buildings: All buildings, parking areas and other improvements and structures, and any and all additions, alterations, or appurtenances thereto, now or later placed or constructed on the Land. (c) Contractual Rights: All Contracts (including, without limitation, contracts for the sale or exchange of all or any portion of the Land or the Buildings), franchises, licenses and permits, whether executed, granted or issued by a private person or entity or a Governmental Authority, which are directly or indirectly related to or connected with the development, construction, management, use or sale of the Land or the Buildings, whether now or at any time hereafter existing, and all amendments and supplements thereto and renewals and extensions thereof at any time made, and all rebates, refunds, escrow accounts and funds, or deposits and all other sums due or to become due under and pursuant thereto and all powers, privileges, options and Grantor's other benefits under those Contracts, to the extent the same are assignable. (d) Contracts: Includes all of the following: (i) all contracts now or hereafter entered into by and between Grantor and any original contractor or between Grantor and any other party, as well as all right, title and interest of Grantor under any subcontracts, providing for the renovation or construction (original, restorative or otherwise) of any improvements to or on any of the Mortgaged Property or the furnishing of any materials, supplies, equipment or labor in connection with any such construction; (ii) all of the plans, specifications and drawings (including site plans, foundation plans, floor plans, elevations, framing plans, cross-sections of walls, mechanical plans, electrical plans and architectural and engineering plans and architectural and engineering studies and analyses) heretofore or hereafter prepared by any architect, engineer or other design professional, in respect of any of the Mortgaged Property; (iii) all agreements now or hereafter entered into with any person or entity in respect of architectural, engineering, design, management, development, inspection, supervision, franchising, or consulting services or other services of any  kind rendered or to be rendered with respect to any of the Mortgaged Property; (iv) any Resolution No. 04-28-22-8.5 Page 128 of 164 commitment issued by any lender or investor other than Grantor to finance or invest in any of the Mortgaged Property; (v) any and all tax abatement agreements with respect to the Mortgaged Property; (vi) any completion bond, performance bond and labor and material payment bond and any other bond relating to the Mortgaged Property or to any-contract providing for construction of improvements to any of the Mortgaged Property; (vii) any and all contracts for the sale of the Buildings once constructed or renovated; and (viii) the Leases. Contracts also include any and all substitutions for and proceeds of any of the foregoing received upon the rental, sale, exchange, transfer, collection or other disposition or substitution of it and together with all general intangibles now owned by Grantor or existing or hereafter acquired, created or arising. (e) Fixtures: All materials, supplies, equipment, machinery, appliances, apparatus and other items owned by Grantor and now or later attached to, installed in or used in connection with (temporarily or permanently) any of the Buildings or the Land, including but not limited to any and all partitions, shelving, bookcases, cabinets and carpentry, window screens and shades, wall and floor coverings, awnings, elevators, motors, engines, boilers, furnaces, pipes, plumbing, cleaning, smoke detector and sprinkler systems, fire extinguishing apparatus and equipment, water tanks, lighting, air conditioning, heating, ventilating, filtering, plumbing, utility, gas and electrical lines, wiring and equipment, telephone and other communication equipment, photocopying, facsimile, word processing, computer and telex hardware and software, and all other equipment and facilities of all kinds and the connection rights thereto. All proceeds of, appurtenances to, renewals or replacements of, or substitutions for any Fixtures are also included in the definition of Fixtures. (f) Governmental Authority: Any and all courts, political subdivisions, boards, agencies, bureaus, commissions, regulatory bodies, central bank, department, offices or authorities of any kind for any governmental unit (foreign, federal, state, county, district, municipal, city, quasi-governmental or otherwise) now or later in existence. (g) Grantor and Successors and Assigns: The person or entity named in the introductory paragraph of this Deed of Trust, and its, her, his or their respective heirs, personal representatives, successors and assigns (all of which are and whom are included in the term "its successors and assigns"), subject however to the requirements of this Deed of Trust. (h) Income: All of the rents, bonuses, royalties, revenues, income, proceeds, damages, profits and other benefits and income paid or payable from the Mortgaged Property, the Leases or from the use, possession, operation, or sale of the Mortgaged Property, including without limitation any insurance or condemnation proceeds. (i) Indebtedness: The principal of, interest on and all other amounts, payments, fees, and premiums now or hereafter due under the Note, this Deed of Trust and the other Security Documents. (j) Land: The land described in EXHIBIT A to this Deed of Trust, and all oil, gas, coal, lignite, soil, gravel and other minerals ("Minerals"), development rights, air rights, shrubbery or plantings, water rights, easements, and other rights related to the Land owned by Grantor. Resolution No. 04-28-22-8.5 Page 129 of 164 (k) Leases and Rents: All of Grantor's estate, right, title and interest in and to any and all leases of space in any part of the Mortgaged Property, together with any guaranties and security (including any deposits and any letters of credit, the proceeds of any letters of credit and any letter of credit rights and supporting obligations) for the obligations of any tenant, lessee, lease guarantor, sublessee or other person or entity having the right to occupy, use or manage any part of the Mortgaged Property (which agreements are herein referred to as a "Lease" or the "Leases") and all of Grantor's estate, right, title and interest in and to all rents, revenues, income, profits, proceeds, issues, royalties, other benefits and all other "Rents" (as such term is defined in the Texas Assignment of Rents Act, Chapter 64 of the Texas Property Code ("TARA")) now or hereafter derived from the Land, Buildings, Fixtures and Personalty or the Leases (collectively, the "Rents"). (l) Legal Requirements: (i) Any and all present and future judicial decisions, statutes, rulings, orders, decrees, rules, regulations, permits, certificates, codes or ordinances (or interpretations of any of the foregoing) of any Governmental Authority in any way applicable to Grantor or the Mortgaged Property, including without limitation the ownership, use, occupancy, operation, maintenance, repair or reconstruction of the Mortgaged Property, and all applicable Legal Requirements pertaining to health or the environment, (ii) Grantor's present or future bylaws and articles or certificate of incorporation, partnership, limited partnership, joint venture, trust or other form of association, and all legal requirements to maintain those entities in existence and in compliance with all applicable laws, (iii) any and all Leases, (iv) any restrictions, covenants, Contractual Rights and other contracts (written or oral) of any nature to which Grantor is or may be bound or to which the Mortgaged Property is or may be subject, and (v) the terms of any license or permit issued by any Governmental Authority pertaining to Grantor or the Mortgaged Property. (m) Loan Agreement: The Agreement of even date herewith by and between Grantor, as Borrower, and Beneficiary, as Lender, which, among other things, provides for the Note and pertains to the Mortgaged Property. (n) Mortgaged Property: The Land, Buildings, Fixtures, Income, Leases, Rents, Contractual Rights, Utilities (hereinafter defined) and Personalty (hereinafter defined), together with: (i) all rights, privileges, tenements, hereditaments, rights-of-way, easements, alleys, appendages and appurtenances in anywise appertaining thereto and all right, title and interest of Grantor in and to any streets, ways, alleys, strips or gores of land adjoining the Land or any part of it; (ii) all additions, appurtenances, substitutions, replacements, rev1s10ns and remainders therein; (iii) all of Grantor's right, title and interest in and to any awards, remuneration, settlements or compensation made by any Governmental Authority to the present or any subsequent owner of the Land, Buildings, Fixtures, Leases, Utilities or Personalty, including but not limited to those for any condemnation or other award, vacation of, or change of grade in, any streets affecting the Land or the Buildings; and (iv) any and all other security and collateral of any nature whatsoever, now or later given for the repayment of the Indebtedness or the performance and discharge of the Obligations. (o) Note: The Promissory Note dated the same date as this Deed of Trust, executed by Grantor and made payable to the order of Beneficiary (the "Note"), in the face amount of $2,808,000.00 or so Resolution No. 04-28-22-8.5 Page 130 of 164 much of that amount as is advanced, and any and all renewals, extensions, replacements, rearrangements, substitutions or modifications of the Note. (p) Obligations: The Indebtedness and any and all of the agreements, covenants, duties, liabilities, warranties, representations and other obligations made by Grantor or others to Beneficiary as set forth in the Security Documents or in any lease, sublease or other agreement pursuant to which Grantor is granted a possessory interest in the Land. (q) Permitted Encumbrances: The liens, easements, restrictions, security interests and other matters (if any) which are listed in Exhibit B to this Deed of Trust, but only to the extent they are valid and in force and affect and apply to the Land as of the date hereof. (r) Personalty: All furniture, furnishings, tools, materials, supplies, equipment, machinery, goods, inventory, work in process, general intangibles (including, but not limited to patents, trade secrets, trademarks and goodwill), shrubbery and plantings that are not a part of the Land, money, accounts, chattel paper, notes, documents, instruments, utility and other deposits permits, licenses, franchises, certificates, plans and specifications, studies, contract rights (but not obligations), claims against third parties which relate to the Mortgaged Property, funds, accounts, accounts receivable, trademarks, trade names, symbols, all guaranties and warranties obtained with respect to the Land, Buildings, equipment, furniture and furnishings, judgments, awards, books and records, building materials, advertising brochures, lease forms, insurance proceeds and all other personal property (other than the Fixtures) of any kind or character, now or later located on or about the Land and the Buildings or used in connection with their operation, or stored off the Land for future incorporation on or about the Land and the Buildings and now or hereafter owned by Grantor, together with all accessories, replacements and substitutions and their proceeds. (s) Security Documents: This Deed of Trust, the Loan Agreement, and the other Loan Documents (as defined in the Loan Agreement) and any and all other documents now or hereafter executed by Grantor and as any of them may be amended, modified, restated or supplemented, or any other person, to evidence or secure the payment of the Indebtedness or the performance and discharge of the Obligations. In addition, where the context in which it is used includes, directly or indirectly or by implication, the payment of the Note or obligations that are to be performed under the Note, the definition of Security Documents also includes the Note. (t) Taxes and Charges: All real estate and personal property and use taxes, water, gas, sewer, electricity and other utility rates and charges, charges for any easement, license or agreement maintained for the benefit of the Mortgaged Property, and all other taxes, maintenance fees, charges and assessments and any interest, costs or penalties with respect thereto, of any kind and nature which at any time may be assessed, levied or imposed upon the Mortgaged Property or the Income, or the ownership, use, occupancy or enjoyment of them. (u) UCC: The Uniform Commercial Code in effect in the state in which the affected Mortgaged Property, or any portion of it, is located. (v) Utilities: All wastewater, fresh water and other utilities capacity and facilities including, without limitation, all utility lines and utility connections and any wastewater capacity reservation Resolution No. 04-28-22-8.5 Page 131 of 164 (the "Utilities Capacity") available or allocable to the Land and the Buildings or dedicated to or reserved for them pursuant to any system, program, contract or other arrangement with any public or private utility, and all related or incidental licenses, reservations, commitments, capital recovery charge receipts, rights and interests, whether considered to be real, personal or mixed property, including the right and authority to transfer or relinquish any or all such rights and the right to any credit, refund, deposit, reimbursement or rebate for utilities facilities construction or installation or for any reservation fee, standby fee or capital recovery charge promised, provided or paid for by Grantor or any of Grantor's predecessors or Affiliates, to the full extent now allocated or allocable to the Land or Buildings. Utilities also includes without limitation water, gas, electricity, drainage and storm and sanitary sewers. The words "hereof," "herein," and "hereunder," and words of similar import when used in this Deed of Trust shall refer to this Deed of Trust as a whole and not any particular provision of this Deed of Trust. References to Section or Subsection are to the sections and subsections in this Deed of Trust, unless otherwise indicated. Article 2. Conveyance of Mortgaged Property and Warranty of Title 2.1. Conveyance and Warranty of Title. In order to secure the payment of the Indebtedness and the performance of the Obligations, Grantor has GRANTED, SOLD and CONVEYED, and does hereby GRANT, SELL and CONVEY to the Trustee and its successors and assigns the Mortgaged Property, IN TRUST WITH POWER OF SALE for the benefit and security of Beneficiary, subject to the Permitted Encumbrances, TO HAVE AND TO HOLD the Mortgaged Property unto the Trustee, his successors and assigns, forever, and Grantor does hereby bind Grantor and its successors and assigns, to warrant and forever defend the title to the Mortgaged Property subject to the Permitted Encumbrances, unto the Trustee against every person whomsoever lawfully claiming or to claim the same or any part thereof; provided, however, that if Grantor pays the Indebtedness and performs the Obligations on or before the date they are to be paid and performed then this Deed of Trust shall terminate, and at Grantor's expense, will be released; otherwise it will remain in full force and effect. 2.2. Priority of Lien: This Deed of Trust is in all respects senior, and superior to any other liens and security interests (collectively, the "Junior Liens") Article 3. Representations, Warranties, Covenants and Agreements Grantor hereby unconditionally represents, warrants, covenants and agrees to all of the following: 3.1. Validity of Security Documents: The Note and Security Documents constitute the legal, valid and binding obligations of Grantor and others obligated under the terms of the Security Documents, in accordance with their respective terms. If the validity or priority of the Security Documents or of any rights, titles, liens or security interests created or evidenced by them with respect to the Mortgaged Property or any part of it is questioned or attacked directly or indirectly, or if any legal proceeding is instituted with respect thereto, Grantor, at Grantor's cost and expense, will promptly cure any defect that may develop or be claimed, and will take all necessary steps for the defense of any legal proceeding, including but not limited to the prosecution or defense of Resolution No. 04-28-22-8.5 Page 132 of 164 litigation and the release or discharge of all adverse claims, and the Beneficiary, whether or not named as a party, is authorized and empowered to take any additional steps as in its judgment and discretion may be necessary or proper for the defense of the legal proceeding or the protection of the validity or priority of the Security Documents and the rights, titles, liens and security interests created or evidenced by them, including but not limited to the employment of counsel, the prosecution or defense of litigation, the compromise or discharge of any adverse claims made with respect to the Mortgaged Property, the posting of any bonds, the purchase of any tax title and the removal of prior liens or security interests, and all expenses so incurred of every kind and character will be a demand obligation owing by Grantor and Beneficiary will be subrogated to all rights of the person receiving the payment. Grantor will, on request of the Beneficiary, and at Grantor's expense, (i) promptly correct any defect, error or omission which may be discovered in the contents of the Security Documents or in their execution or acknowledgment; and (ii) execute, acknowledge, deliver, procure and record or file any document or instrument (including without limitation any financing statement) deemed advisable by the Beneficiary to perfect the lien or the security interest hereunder against the rights or interests of third persons, subject to the Permitted Encumbrances. 3.2. Title to Mortgaged Property: Grantor has good and indefeasible fee simple title to the Mortgaged Property, free and clear of any liens, charges, encumbrances, security interests and adverse claims whatsoever except the Permitted Encumbrances. This Deed of Trust is a valid, subsisting, first lien deed of trust on the Land, the Buildings and the Fixtures and is a valid, subsisting, first security interest in and to the Personalty, Leases and Income, all in accordance with the terms of this Deed of Trust. 3.3. Payment and Performance: Grantor will pay the Indebtedness, as and when called for in the Note and Security Documents, and will perform all of the Obligations on or before the dates they are to be performed. 3.4. Compliance with Legal Requirements; Environmental Laws; Anti-forfeiture Laws: Grantor will promptly and faithfully comply with all present and future Legal Requirements, including but not limited to the Americans with Disabilities Act. The Mortgaged Property and its intended use complies with all Legal Requirements in all material respects. There are no judicial or administrative actions, suits or proceedings pending or threatened against Grantor with respect to the Mortgaged Property. The agreements, representations, warranties, covenants and indemnities made by Grantor in that certain Environmental Risk Agreement of even date herewith for the benefit of Beneficiary are hereby incorporated herein for all purposes. Grantor will not commit, permit or suffer to exist any act or omission affording the federal government or any state or local government the right of forfeiture as against the Mortgaged Property or any part thereof or any money paid in performance of Grantor's obligations under the Note or under any of the other Security Instruments. In furtherance thereof, Grantor hereby agrees to indemnify Beneficiary and Trustee harmless from and against, and Grantor shall be responsible for, any loss, damage or injury by reason of the breach of the covenants and agreements set forth in this Section REGARDLESS OF WHETHER CAUSED IN WHOLE OR IN PART BY THE NEGLIGENCE OF BENEFICIARY OR TRUSTEE. Without limiting the generality of the foregoing, the filing of Resolution No. 04-28-22-8.5 Page 133 of 164 formal charges or the commencement of proceedings against Grantor, or against all or any part of the Mortgaged Property under any federal or state law for which forfeiture of the Mortgaged Property or any part thereof or of any monies paid in the performance of Grantor's obligations under the Security Documents is a potential result shall, at the election of the Beneficiary, constitute an Event of Default hereunder without notice or opportunity to cure. 3.5. Payment of Taxes and Charges: Grantor will duly pay and discharge, or cause to be paid and discharged, the Taxes and Charges before they are delinquent and in every event before they might become a lien against the Mortgaged Property, and not less than ten (10) days before the date they will become delinquent Grantor will furnish to Beneficiary certificates or other evidence satisfactory to Beneficiary showing that the Taxes and Charges have been paid. In the event of a foreclosure under this Deed of Trust, or deed-in-lieu of foreclosure, Grantor will be and remain responsible for, and liable to the purchaser or grantee for, all Taxes and Charges then due and for all Taxes and Charges that have accrued through the date of foreclosure sale or deed-in-lieu, whether or not then due. 3.6. Tax and Insurance Escrow: In order to implement the provisions of Sections 3.5 and 6.1, Grantor will, upon written request from the Beneficiary following an Event of Default, pay to Beneficiary, as and when directed by Beneficiary, and as escrowed sums, a monthly amount equal to 1/12th of the sum of (x) the annual Taxes and Charges (estimated by Beneficiary in good faith wherever necessary) to become due for the tax year during which payment is directed and (y) the insurance premiums for the same year for the insurance policies required hereunder; provided, however, if when any escrow is established hereunder less than a full calendar year remains until the date the Taxes and Charges and insurance premiums are due, then the monthly amount of escrowed sums to be paid by Grantor pursuant hereto shall be determined by multiplying the amount of Taxes and Charges and insurance premiums to be due times a fraction whose denominator is the number of months remaining until the due date of the Taxes and Charges and insurance premiums and whose numerator is one. Beneficiary also may require that the Taxes and Charges and insurance premiums be paid to Beneficiary in regular installments in addition to and at the same time as installments are paid on the Note. If Beneficiary determines that any amounts paid by Grantor are insufficient for the payment in full of the Taxes and Charges and insurance premiums, Beneficiary may notify Grantor of the increased amounts required, whereupon Grantor will pay to Beneficiary within thirty (30) days the additional amount as stated in Beneficiary's notice. The escrowed sums shall be held by Beneficiary in non-interest bearing accounts and shall not be commingled with Beneficiary's other funds. Upon foreclosure or a deed in lieu of foreclosure, or upon an assignment of this Deed of Trust, Beneficiary can pay the balance of the escrowed sums then in its possession to the purchaser or transferee or to its assignee, whereupon the Beneficiary and its Trustee will then be completely released from all liability with respect to them. Upon full payment of the Indebtedness, or at any earlier time as Beneficiary may elect, the balance of the escrowed sums in Beneficiary's possession may be paid to Grantor. The escrowed sums may, at the option of Beneficiary, be repaid to Grantor in time to allow Grantor to satisfy Grantor's obligations under the Security Documents to pay the Taxes and Charges and the required  insurance premiums, or be paid directly to the Governmental Authority and the insurance company entitled to them. If an Event of Default then exists, however, Beneficiary will have the additional Resolution No. 04-28-22-8.5 Page 134 of 164 option of crediting the full amount of the escrowed sums against the Indebtedness. Notwithstanding anything to the contrary contained in this paragraph, Beneficiary reserves the right to waive the payment by Grantor to Beneficiary of the escrowed sums, and, in the event Beneficiary does waive payment, it will be without prejudice to Beneficiary's right to insist, at any subsequent time or times, that the payments be made to Beneficiary. 3.7. Restoration Following Casualty: If any act or occurrence of any kind or nature (including any casualty for which insurance was not obtained or obtainable) results in damage to or loss or destruction of the Mortgaged Property, Grantor will immediately notify Beneficiary and, if so instructed by Beneficiary and if Beneficiary makes the insurance proceeds paid in connection with such casualty available therefor as provided in this Deed of Trust, Grantor will promptly, at Grantor's sole cost and expense and regardless of whether the insurance proceeds (if any) are sufficient for that purpose, begin and continue diligently to completion to restore, repair, replace and rebuild the Mortgaged Property as nearly as possible to its value, condition and character immediately prior to the damage, loss or destruction. 3.8. Repair: Grantor will keep the Mortgaged Property in first class order and condition and will make all repairs, replacements, additions, improvements and alterations, interior and exterior, structural and non-structural, which are necessary or reasonably appropriate to keep it in that order and condition. 3.9. Leases; Performance of Leases: Grantor will not execute any Leases as Lessor except on a form reasonably approved by Beneficiary. Grantor will (a) duly and punctually perform and comply in material respects with any and all of its representations, warranties, covenants and agreements under each of the Leases, (b) except in the ordinary course of business, not modify the Leases or voluntarily terminate, cancel or waive its rights or the obligations of any person under any of the Leases, unless a tenant is in default under such Lease, (c) comply with and perform all its obligations under the Leases and maintain the Leases in force and effect during their full term, unless a tenant is in default under such Lease, (d) appear in and defend any action or proceeding arising under or in any manner connected with any of the Leases or the representations, warranties, covenants and agreements of it or the other parties to the Leases, (e) upon Beneficiary's written request deliver copies to Lender of the Leases and any and all amendments thereto certified by Grantor to be true and correct, (f) not collect any rental under the Leases for more than one (1) month in advance, and (g) maintain all security deposits, pet deposits and other sums received as security for leases in a separate interest-bearing bank account in Grantor's name, in trust for Beneficiary and tenants under the Leases, (as their interests may appear) which account shall remain segregated and not co-mingled with Grantor's operating accounts and which shall be subject to the liens and security interests granted herein. Upon request of Beneficiary, Grantor will send Beneficiary a copy of any notice of default given to a tenant and will cause each tenant to agree (and each tenant under each Lease executed after the date hereof so agrees) to give Beneficiary written notice of each and every default by Grantor under any Lease, and not to exercise any remedies under any Lease unless Beneficiary fails to cure the default within thirty (30) days after Beneficiary has received that notice, or within such longer period as may be reasonably necessary if the default cannot be cured within thirty (30) days, provided that Resolution No. 04-28-22-8.5 Page 135 of 164 Beneficiary shall never have any obligation or duty to cure any such default. Grantor will not enter  into any Lease which (i) provides for an original term of less than six (6) months from the commencement date of such Lease, (ii) is not an arm's length transaction or (iii) does not provide that such Lease is subordinate to this Deed of Trust and that all tenants thereunder agree to attorn to Beneficiary. 3.10. Hold Harmless: Grantor will defend, at its own cost and expense, and hold the Trustee and Beneficiary harmless from, any action, proceeding or claim affecting the Mortgaged Property or the Security Documents, and all costs and expenses incurred by the Trustee or Beneficiary in protecting its interests in any of these events (including all court costs and reasonable attorneys' fees) must be paid by Grantor, unless such is caused by the gross negligence, willful misconduct or bad faith of Beneficiary. THIS INDEMNITY IS INTENDED TO COVER, AND GRANTOR DOES HEREBY INDEMNIFY BENEFICIARY AGAINST, LIABILITIES, LOSSES, COSTS AND EXPENSES ARISING OUT OF THE SOLE, JOINT OR CONCURRENT NEGLIGENCE (BUT NOT GROSS NEGLIGENCE OR WILLFUL MISCONDUCT) OR STRICT LIABILITY OF BENEFICIARY. 3.11. Other Covenants and Agreements: Grantor will keep and perform its covenants and agreements in this Deed of Trust. 3.12. Use Violations: Grantor will not use, maintain, operate or occupy, or allow the use, maintenance, operation or occupancy of, the Mortgaged Property in any manner which (a) violates in a material respect any Legal Requirement, (b) may be dangerous unless safeguarded as required by law, (c) constitutes a public or private nuisance or (d) makes void, voidable or cancelable, or increases the premium of, any insurance then in force with respect thereto. If Grantor receives any notice claiming that Grantor is in violation of any Legal Requirement or in any of the provisions of this section, Grantor will immediately notify Beneficiary and furnish a copy of the notice to Beneficiary. Grantor shall not grant, join in or consent to any lien, security interest, easement, license, use or other change or interest covering or affecting all or part of the Mortgaged Property  or initiate, join in or consent to the change in any private restrictive covenant, zoning ordinance or other restriction limiting or defining the use which may be made of the Mortgaged Property or any part thereof without the prior written consent of Beneficiary. 3.13. Waste; Alterations: Grantor will not commit or permit any physical waste or physical deterioration of the Mortgaged Property. Subject to the provisions of Sections 3.7, 3.8 and Article 6, Grantor will not without the prior written consent of Beneficiary (which consent shall not be unreasonably withheld) make or permit to be made any alterations or additions to the Mortgaged Property which would impair or reduce its value, or extract, remove, drill, explore or deplete or suffer or permit extraction, removal, drilling, exploration or depletion of any Minerals (as defined above) or substances, timber, or other portion of the Land. 3.14. Replacement of Fixtures and Personalty: Grantor will promptly replace all worn-out or obsolete Fixtures or Personalty with Fixtures or Personalty of substantial equal suitability. However, Grantor will not, without the prior written consent of Beneficiary (which consent shall not be unreasonably withheld), permit any of the Fixtures or Personalty to be removed at any time Resolution No. 04-28-22-8.5 Page 136 of 164 from the Land or Buildings, unless the removed item is removed temporarily for maintenance and repair or, if removed permanently, is simultaneously replaced by an article of equal suitability. Any net cash proceeds received by Grantor from such disposition shall be promptly paid over to Beneficiary to be applied to the Indebtedness in the order determined by the Beneficiary in its sole discretion. 3.15. No Residence or Homestead: Grantor does not claim or use and shall not claim or use (and hereby renounces) the Mortgaged Property or any part of it as Grantor's residence or business or residential homestead. 3.16. Payment of Debts; No Further Encumbrances: Grantor will pay and discharge any valid debts and liabilities incurred in connection with the Mortgaged Property. Except for the Senior Liens, Grantor will not, without the prior written consent of Beneficiary, create, place or permit to be created or placed, or through any act or failure to act, acquiesce in the placing of, or allow to remain, any mortgage, pledge, lien (statutory, constitutional or contractual), security interest, easement, restrictive covenant, charge, or encumbrance on or covering any of the Mortgaged Property, Leases or Income, regardless of whether they are expressly subordinate to the liens of the Security Documents. If any further encumbrances are placed against the Mortgaged Property without Beneficiary's consent, then Grantor will immediately cause them to be discharged and removed. 3.17. No Sales or Other Transfers or Refinancing: In the event Grantor, without the prior written consent of Beneficiary, sells or contracts to sell or enters into an option to sell, or exchanges, assigns, conveys, mortgages, transfers possession of (including also a lease of all or a substantial part of the Mortgaged Property), or otherwise disposes of the Mortgaged Property, or any part of it (except as permitted herein), or refinance the indebtedness secure hereby, Beneficiary shall have the right to accelerate the Indebtedness and declare such Indebtedness immediately due and payable. In order to assist Beneficiary in determining whether or not to consent to any sale, exchange, assignment, conveyance, transfer or other disposition, Grantor will furnish to Beneficiary, at no expense to Beneficiary, detailed and complete financial statements of the proposed transferee, prepared consistent with GAAP and audited by a certified public accountant satisfactory to Beneficiary, if requested by Beneficiary, together with detailed and complete information about the business and business experience of the proposed transferee, the use to be made of the Mortgaged Property by the proposed transferee, projections by the proposed transferee of the sources of funds to be used to repay the Indebtedness, and an appraisal of the Mortgaged Property from an appraiser satisfactory to Beneficiary, together with any other information Beneficiary may reasonably require. Beneficiary may also require as a condition to any consent that a transfer fee be paid to it or that the Note or this Deed of Trust be modified in order to reflect its loan practices or market conditions at that time. Although not required as a condition for Beneficiary to refuse its consent to a proposed sale or transfer, any determination by Beneficiary that its security would be impaired by the transfer will be conclusive and binding. Beneficiary may grant or deny its consent in its sole discretion and, if the consent is given, that transfer will be subject to the Security Documents, and the transferee must assume all obligations and agree to be bound by all the provisions in the Security Documents; however, the transferee's assumption will Resolution No. 04-28-22-8.5 Page 137 of 164 not release Grantor or any maker or guarantor of the Note from any liability. Consent to a transfer will not be a waiver of the right to the requirement of Beneficiary's consent to any other transfer. As used herein "sell, or contract to sell, exchange, assign, convey, mortgage, transfer possession of or otherwise dispose of includes (i) the sale, agreement to sell, assignment, conveyance or transfer of the Mortgaged Property, or any portion of it or any interest in it, whether voluntary, involuntary, by operation of law or otherwise, and (ii) except as permitted under the Loan Agreement, the transfer, assignment or conveyance or other change in ownership of the partnership interest, capital stock or other voting or ownership interest of any corporation, partnership, joint venture, trust, or other entity. 3.18. Estoppel Certificates: Grantor will at any time and from time to time furnish promptly upon request by the Beneficiary a written statement in form as required by the Beneficiary stating that the Note, this Deed of Trust, and the other Security Documents are valid and binding obligations of Grantor, enforceable against Grantor in accordance with their terms; the amount of unpaid principal balance of the Note; the date to which interest on the Note is paid; that the Note, this Deed of Trust and the other Security Documents have not been released, subordinated or modified; and that there are no offsets or defenses against the enforcement of the Note, this Deed of Trust and the other Security Documents, or if any of the foregoing statements are untrue, specifying the reasons; and containing such other information as Beneficiary may request. 3.19. No Sale or Other Transfers of Utilities: Grantor will not, without the prior written consent of Beneficiary, sell or contract to sell, or enter into an option to sell, or exchange, assign, convey, pledge, transfer possession of (including also a lease of all or any part of the Utilities) or otherwise dispose of all or any part of the Utilities or any agreements or rights of any nature relating to the Utilities, drainage ditches, and/or treatment plants associated with the Mortgaged Property, any reimbursements or other rights belonging to Grantor which pertain to any Utilities or utility services provided, to be provided, or now or in the future available to all or any part of the Mortgaged Property. Grantor further covenants and agrees that it shall take any such action and execute, acknowledge, deliver and record and/or file any and all instruments as may be necessary or proper to transfer any existing or future utility commitments, reservations or capital recovery charge receipts covering the Mortgaged Property to the Grantor and Beneficiary as co-recipients of the utility commitments, reservation and/or capital recovery charge receipt, and to maintain the existing Utility Capacity, rights to the Utilities, and reservations for the Mortgaged Property at or above its present level.  3.20. Grantor Will Protect Property from Mechanic's Liens: Grantor agrees to promptly pay all bills for labor and materials incurred in connection with the Mortgaged Property and to prevent the fixing of any lien against any part of the Mortgaged Property, even if it is inferior to this Deed of Trust, for any such bill which may be legally due and payable. Grantor agrees to furnish due proof of such payment to Beneficiary after payment and before delinquency. Notwithstanding the foregoing, Grantor shall have the right to contest the validity of any liens or claims for liens, and Beneficiary may require protection regarding disputed liens as provided in the Loan Agreement which may include bonding around a disputed lien in accordance with the requirements of the Texas Property Code. Resolution No. 04-28-22-8.5 Page 138 of 164 3.21. Contracts: Grantor, promptly upon written request of Beneficiary, will furnish to Beneficiary copies of all Contracts and all amendments and supplements thereto certified by Grantor to be true and correct and Grantor does hereby obligate itself to comply with and perform all its obligations under the Contracts and enforce the provisions of such Contracts. 3.22. Grantor Will Correct Title Defects: If at any future time any defect should be found to exist in the title to any of the Mortgaged Property, Grantor agrees to promptly commence and thereafter diligently proceed to cure the defect and defend the title. If any lien or encumbrance junior, equal or superior in rank or priority to the lien of this Deed of Trust should be discovered or arise at any time in the future then, unless Beneficiary is the only holder of it, or Beneficiary has given specific prior written consent to it, Grantor agrees to promptly discharge and remove it from the Mortgaged Property. Grantor will notify Beneficiary in writing within five days of the time, that Grantor becomes aware of the filing of any mortgage, lien, security interest, financing statement or other security device whatsoever against the Mortgaged Property other than the Security Documents. 3.23. No Reliance on Beneficiary: Grantor is experienced in the ownership and operation of properties similar to the Mortgaged Property, and Beneficiary is relying solely upon Grantor's expertise and business plan in connection with the construction of the Improvements and ownership and operation of the Mortgaged Property. Grantor is not relying on Beneficiary's expertise or business acumen in connection with the Mortgaged Property or in connection with the construction of the Improvements. 3.24. ERISA: If and to the extent that Grantor is obligated under any plan governed by or subject to the Employee Retirement Income Security Act, as amended ("ERISA"), Grantor shall fully discharge and satisfy all of its obligations and funding requirements under such plan, ERISA and the Internal Revenue Code, as amended ("IRC"). Furthermore, Grantor shall comply in all material respects with any and all applicable provisions of ERISA and the IRC and will not incur or permit to exist any unfunded liabilities to the Pension Benefit Guaranty Corporation or to such plan under ERISA or the IRC. 3.25. Disclosures: If at any time Grantor shall become aware of the existence or occurrence of any financial or economic conditions or natural disasters which are likely to have a material adverse affect on the Mortgaged Property or Grantor's financial condition, Grantor shall promptly notify Beneficiary of the existence or occurrence thereof and of Grantor's opinion as to what effect such may have on the Mortgaged Property or Grantor. Grantor shall also give prompt notice to Beneficiary of (i) the serious illness or death of any principal or key employee of Grantor, (ii) any litigation or dispute, threatened or pending against or affecting Grantor, the Mortgaged Property or any guarantor which could have a material adverse effect on the Mortgaged Property or the financial condition or business of any of the aforementioned parties, (iii) any Default, (iv) any default by Grantor or any acceleration of any indebtedness owed by Grantor under any contract to which Grantor is a party, (v) any default by Guarantor or any acceleration of any indebtedness owed by any Guarantor under any contract to which Guarantor is a party and (vi) any change in the character of Grantor's business as it existed on the date hereof. Resolution No. 04-28-22-8.5 Page 139 of 164 3.26. Use of Personalty: Grantor represents that all Personalty is property for business use and is not consumer goods. Grantor further covenants that there are and shall be no conditional sales contracts that cover any of the Personalty. 3.27. Contractual Rights; Performance of Contracts: Grantor will (a) duly and punctually perform and comply in material respects with all of its representations, warranties, covenants and agreements under each of the Contracts, (b) except in the ordinary course of business, not alter or  modify the Contracts or voluntarily terminate, cancel or waive its rights or the obligations of any other party under any of the Contracts or permit or suffer a cancellation or termination of a diminution of the obligations of any other party under any of the Contracts; however, Beneficiary shall not unreasonably withhold its consent with respect to a property management agreement or the modification or termination thereof, (c) comply with and perform all its obligations under the Contracts and maintain the Contracts in full force and effect during their terms, (d) appear in and defend any action or proceeding arising under or in any manner connected with any of the Contracts or the representations, warranties, covenants and agreements of it or the other parties to the Contracts. Grantor will give immediate notice to Beneficiary of any notice Grantor receives from any other party to any of the Contracts specifying any claimed default by any party to any of the Contracts. Upon receipt from Beneficiary of notice that an Event of Default exists, any and every party to each of the Contracts are hereby authorized and directed to attorn to the Beneficiary as owner, and to observe and perform the Contracts as though Beneficiary were named as owner in the Contracts and to continue to do so until otherwise notified by Beneficiary. Upon the occurrence of an Event of Default, Grantor specifically agrees that Beneficiary may take possession of the Mortgaged Property and manage and operate it on such terms as it deems proper and may either with or without taking possession of the Mortgaged Property demand, sue for or otherwise enforce the Contracts with full power to perform, amend, revise, release or otherwise change or enforce the same as Beneficiary may deem proper. Upon any foreclosure under this Deed of Trust or the acceptance of a deed-in-lieu of foreclosure, Grantor hereby specifically agrees that Beneficiary or the Trustee has the full power and authority to assign the Contracts to any purchaser at such a sale or a grantee. Any such assignment will operate to fully vest any such purchaser or grantee with all rights of Grantor under the Contracts as though such purchaser or grantee were named as owner in the Contracts. Beneficiary shall not be liable for any loss sustained by Grantor resulting from Beneficiary's failure to enforce the Contracts after default or from any other act or omission of Beneficiary, unless such loss is caused by the gross negligence, willful misconduct or bad faith of Beneficiary. The Beneficiary shall not be obligated to perform or discharge any obligation, duty or liability under the Contracts, and the Grantor shall and does hereby agree to indemnify the Beneficiary for, and to hold the Beneficiary harmless from, any and all liability, loss or damage which may or might be incurred under the Contracts, and from any and all claims and demands whatsoever which may be asserted against the Beneficiary by reason of any alleged obligations or undertakings on its part to perform or discharge any of the terms, covenants or agreements contained in the Contracts, unless such loss is caused by the gross negligence, willful misconduct or bad faith of Beneficiary. THIS INDEMNITY IS INTENDED TO COVER, AND GRANTOR DOES HEREBY INDEMNIFY BENEFICIARY AGAINST, LIABILITIES, LOSSES, COSTS Resolution No. 04-28-22-8.5 Page 140 of 164 AND EXPENSES ARISING OUT OF THE SOLE, JOINT OR CONCURRENT NEGLIGENCE (BUT NOT GROSS NEGLIGENCE OR WILLFUL MISCONDUCT) OR STRICT LIABILITY OF BENEFICIARY. Article 4. Events of Default The term "Event of Default," as used in this Deed of Trust means the occurrence or happening, at any time and from time to time, of any one or more of the following unless cured with the applicable cure period, if any, as expressly provided in the Loan Agreement: 4.1. Defaults: If there should occur an Event of Default under the Loan Agreement or any default or event of default (after the expiration of any applicable cure period) under any of the  Security Documents. 4.2. Destruction of Improvements: If the Mortgaged Property is so demolished, destroyed or substantially damaged that (in Beneficiary's reasonable judgment) it cannot be restored or rebuilt with available funds to a substantially similar condition within a reasonable period of time. 4.3. Foreclosure of Other Liens: If the holder of any lien or security interest on any of the Mortgaged Property (without implying Beneficiary's consent to the existence, placing, creating or permitting of any lien or security interest) institutes foreclosure or other proceedings for the enforcement of its remedies, whether or not that lien or security interest is inferior to this Deed of Trust and whether or not Beneficiary may have consented to the creation of that lien or security interest. 4.4. Enforceable Judgment: If any execution, extent or sequestration or any other process of any court becomes enforceable against the Grantor or a distress or analogous process is levied upon the Mortgaged Property or any part thereof, unless the Grantor (a) gives security to the Beneficiary in such form, substance and amount as the Beneficiary in its sole discretion may require, (b) in good faith disputes such process or appeals the judgment giving rise to such process and (c) thereafter, in the opinion of the Beneficiary, the Grantor diligently prosecutes such dispute or appeal. Article 5. Remedies in Event of Default 5.1. Remedies: If an Event of Default occurs, Beneficiary may, at Beneficiary's election and by or through the Trustee or otherwise, exercise any or all of the following rights, remedies and recourses: (a) Acceleration: Declare the principal balance (meaning the then unpaid principal balance on the Note), the accrued interest and any other accrued but unpaid portion of the Indebtedness to be immediately due and payable, without further notice, including notice of intent to accelerate, notice of acceleration, presentment, protest, demand or action of any nature whatsoever (each of which is hereby expressly waived by Grantor), which will then become immediately due and payable. (b) Entry on Mortgaged Property: Enter upon the Mortgaged Property and take exclusive possession of it and of all books, records and accounts relating to it, and exercise without interference any and all rights of Grantor with respect to the management, possession, operation, Resolution No. 04-28-22-8.5 Page 141 of 164 protection or preservation of the Mortgaged Property, including without limitation the right to lease the Mortgaged Property for Grantor's account on any terms Beneficiary considers to be reasonable under the circumstances and to deduct from the Income all reasonable expenses. If Grantor remains in possession of all or any part of the Mortgaged Property after an Event of Default and without Beneficiary's prior written consent, Grantor will be deemed to be a tenant at will or sufferance of Beneficiary, and Beneficiary may invoke any and all legal remedies to dispossess Grantor, including specifically one or more actions for forcible entry and detainer, trespass to try title and writ of restitution. Nothing contained in this paragraph will, however, be construed to impose any greater obligation to acquiring possession of the Mortgaged Property after an Event of Default than would have otherwise existed. (c) Foreclosure and Sale: Sell or offer for sale the Mortgaged Property in such portions, order and parcels as Beneficiary may determine, with or without having first taken possession, to the highest bidder for cash at public auction at the courthouse of any county in which any of the Land to be sold is located, on the first Tuesday of any month between the hours of 10:00 a.m. and 4:00 p.m. (as provided in the Texas Property Code), after (i) giving notice of the time, place and terms of the sale in accordance with the statutes of the State of Texas then in effect which specify the procedure for foreclosures under deeds of trust (or if no statute then exists which applies to this Deed of Trust, then in accordance with section 51.002 of the Texas Property Code as it now reads), and (ii) giving notice at least twenty-one (21) days preceding the date of sale (by the Beneficiary or any person chosen by the Beneficiary) of the proposed sale by certified mail to each debtor obligated to pay the Indebtedness according to the records of Beneficiary; service of the notice to each debtor to be completed upon deposit of the notice, enclosed in a postpaid wrapper, properly addressed to each debtor at the most recent address as shown by the records of Beneficiary, in a post office or official depository under the care and custody of the United States Postal Service (it being expressly understood that the affidavit of any person having knowledge of the facts to the effect that the notice was given shall be prima facie evidence of that fact). However, nothing contained in this paragraph will be construed to limit in any way the Trustee's rights to sell the Mortgaged Property, or any portion of it, by private sale if, and to the extent that, a private sale is permitted under the laws of the State of Texas, or by public or private sale after entry of a judgment by any court of competent jurisdiction ordering it. Any sale of property covered by Article 7 in this Deed of Trust may be conducted in the manner provided in this paragraph, without the necessity for Trustee to have physically present, or to have constructive possession of, the Mortgaged Property (Grantor hereby covenanting and agreeing to deliver to Trustee any portion of the Mortgaged Property not actually or constructively possessed by Trustee immediately upon demand by Trustee) and the title to and right of possession of that property will pass to the purchaser as completely as if it had been actually present and delivered to purchaser at the sale. Each instrument of conveyance executed by the Trustee will contain a general warranty of title, binding upon the Grantor and its successors and assigns, and each and every recital contained in any instrument of conveyance will conclusively establish the truth and accuracy of the matters recited in it, including, without limitation, the occurrence of the Event of Default, of the proper advertisement and conduct of the sale, and of the appointment of any substitute Trustee, and any prerequisites to the validity of the sale will be conclusively presumed to have been performed. To the fullest extent permitted by law, after the sale the Grantor will be completely and irrevocably divested of all of its right, Resolution No. 04-28-22-8.5 Page 142 of 164 title, interest, claim and demand whatsoever, either at law or in equity, in and to the property sold, and the sale will be a perpetual bar both at law and in equity against Grantor, and against any and all other persons claiming or to claim the property sold or any part of it, by, through or under Grantor. Beneficiary may be a purchaser at any sale and its bid price may be credited to the Indebtedness in the manner and order provided in Section 5.6, in lieu of the payment of cash. (d) Receiver: Upon, or at any time after, beginning the foreclosure under this Deed of Trust or the exercise of any of the other remedies, Beneficiary may make application to a court of competent jurisdiction as a matter of strict right and without notice to Grantor or regard to the adequacy of the Mortgaged Property for the repayment of the Indebtedness or the solvency of Grantor, for appointment of a receiver of the Mortgaged Property, and Grantor does hereby irrevocably consent to such an appointment. Any receiver will have all the usual powers and duties of receivers in similar cases, including the full power to rent, maintain and otherwise operate the Mortgaged Property upon such terms as may be approved by the court, and will apply the Income in accordance with the provisions of Section 5.6. (e) Protection of Mortgaged Property: Take any action and expend any sums which may be reasonably necessary to enhance, protect or preserve the Mortgaged Property.  (f) Attorneys' Fees: Collect from Grantor all court costs and reasonable attorneys' fees (which shall include costs of paralegals and all other incidental costs) incurred by Beneficiary in connection with the Event of Default. (g) Other: Exercise any and all other rights, remedies and recourses granted under the Security Documents or now or hereafter existing in equity or at law, by virtue of statute or otherwise. 5.2. Separate Sales: If an Event of Default occurs, the Mortgaged Property, or any interest in it, may be sold in one or more sales or one or more parcels and in such manner and order as the Trustee, in his sole discretion, may elect, it being expressly understood and agreed that the right of sale arising out of any Event of Default will not be exhausted by any one or more sales, and that other and successive sales may be made until all of the Mortgaged Property has been sold or until the Indebtedness has been fully satisfied. 5.3. Remedies Cumulative, Concurrent and Non-Exclusive: If an Event of Default occurs, Beneficiary has all the rights, remedies and recourses granted in the Security Documents, as well as those available at law or equity (including specifically those granted by the UCC in effect and applicable to the Mortgaged Property, or any portion of it), and all those rights, remedies and recourses (a) are cumulative and concurrent, (b) may be pursued separately, successively or concurrently against Grantor, any guarantor or others obligated under the Note, or against the Mortgaged Property, or against any one or more of them, at the sole discretion of Beneficiary, (c) may be exercised as often as occasion arises, it being agreed by Grantor that the exercise or failure to exercise any of the remedies will in no event be construed as a waiver or release of any right, remedy or recourse, and (d) are intended to be, and will be, nonexclusive. 5.4. Waiver of Redemption, Notice and Marshalling of Assets: If an Event of Default occurs, to the fullest extent permitted by law, Grantor hereby agrees not to claim the benefit of and Resolution No. 04-28-22-8.5 Page 143 of 164 irrevocably and unconditionally waives and releases (a) all benefits that might accrue to Grantor by virtue of any present or future law exempting the Mortgaged Property from attachment, levy or sale on execution or providing for any appraisement, valuation, stay of execution, exemption from civil process, redemption or extension of time for payment, (b) all notices of any Event of Default (except as may be provided for in this Article 5) or of Trustee's election to exercise or his actual exercise of any right, remedy or recourse provided for under the Security Documents, and (c) any right to a marshalling of assets or a sale in inverse order of alienation. 5.5. Discontinuance of Proceedings: If an Event of Default occurs, if the Beneficiary has proceeded to invoke any right, remedy or recourse permitted under the Security Documents and thereafter elects to discontinue or abandon it for any reason, Beneficiary will have the unqualified right to do so and (a) to pursue another right, remedy or recourse, including without limitation the filing of a suit or institution of a foreclosure, or (b) to reinstate the Note in writing, in which event, Grantor and Beneficiary will be restored to their former positions with respect to the Indebtedness, the Obligations, the Security Documents, the Mortgaged Property and otherwise, and the rights, remedies, recourses and powers of Beneficiary will continue as if they had never been invoked. 5.6. Application of Proceeds: If an Event of Default occurs, the proceeds of any sale of, and the Income and other amounts generated by the holding, leasing, operation or other use of, the Mortgaged Property will be applied by Beneficiary (or the receiver, if one is appointed) to the extent that funds are available in the following order of priority: (a) first, to the payment of the costs and expenses of taking possession of the Mortgaged Property and of holding, using, leasing, repairing, improving and selling it, including without limitation (i) a reasonable Trustee's fee and any receivers' fees, (ii) court costs; (iii) attorneys' and accountants' fees, (iv) costs of advertisement, and (v) the payment of any and all Taxes and Charges, liens, security interests or other rights, titles or interests equal or superior to the lien and security interest of this Deed of Trust (except those to which the Mortgaged Property has been sold under Section 5.l(c) subject to and without in any way implying Beneficiary's obligation to pay any of those items or its consent to their creation); (b) second, to the payment of all amounts, other than the principal balance and accrued but unpaid interest, which may be due to Beneficiary under the Note or other Security Documents, together with all interest thereon as provided therein; (c) third, in the order and manner determined by Beneficiary, to the payment of all accrued but unpaid interest due on the Note and to the payment of the remaining Indebtedness represented by the principal amount outstanding under the Note or the Loan Agreement; (d) fourth, to the extent funds are available and, to the extent known by and at the election of Beneficiary, to the payment of any indebtedness or obligation secured by any subordinate (or any equal or superior ones which are not paid under (a) above) deed of trust on or security interest in the Mortgaged Property; and (e) fifth, to Grantor or any other person entitled to the remainder of the funds. Resolution No. 04-28-22-8.5 Page 144 of 164 5.7. Occupancy After Foreclosure: If an Event of Default occurs, the purchaser at any foreclosure sale will become the legal owner of the Mortgaged Property. All occupants of the Mortgaged Property or any part of it will become tenants at sufferance of the purchaser at the foreclosure sale, and must (a) deliver possession immediately to the purchaser upon demand and (b) pay the purchaser a reasonable rental for their occupancy after the sale. It will not be necessary for the purchaser at the sale to bring any action for possession of the Mortgaged Property, other than the statutory action of forcible entry and detainer in any court having jurisdiction over the Mortgaged Property if that action is required. 5.8. Relationship of Multiple Beneficiaries: If an Event of Default occurs, if there is more than one Beneficiary under this Deed of Trust, it is agreed that in the exercise of all of Beneficiary's rights and remedies under this Article 5 and elsewhere in this Deed of Trust and in the Security Documents, those persons (unless otherwise expressly provided herein to the contrary) will be governed and controlled by the decision of the holder or holders of fifty-one percent (51 %) or more of the aggregate principal amount owing (at the time in question) on the Note, which decision will be conclusive and binding on all those persons. Article 6. Insurance and Condemnation Proceeds 6.1. Insurance Requirements: At all times before the final termination of this Deed of Trust, Grantor agrees to provide, maintain and keep in force title, casualty, liability and other insurance for the Mortgaged Property as required by Beneficiary and in any event Grantor will maintain the following specifically described insurance coverages: (a) an all-risk policy of permanent property insurance insuring the Mortgaged Property for its full replacement cost against all risks of any kind or character except those permitted by Beneficiary in writing to be excluded from coverage thereunder; (b) a boiler and machinery insurance policy covering loss or damage to all portions of the Mortgaged Property comprised of air-conditioning and heating systems, other pressure vessels, machinery, boilers or high pressure piping; (c) an all-risk policy of insurance covering loss of earnings and/or rents from the Mortgaged Property in the event that the Mortgaged Property is not available for use or occupancy due to casualty, damage or destruction required to be covered by the policies of insurance described in (a) and (b) above; (d) commercial general liability, auto liability, umbrella or excess liability and worker's compensation insurance against claims for bodily injury, death or property damage occurring on, in or about the Mortgaged Property in amounts reasonably acceptable to Beneficiary and containing terms reasonably acceptable to Beneficiary; (e) if all or any portion of the Mortgaged Property consists of improvements under construction: (i) a builder's all-risk form insurance policy on a completed value, non-reporting form, insuring the Mortgaged Property against all risks of any kind or character except those permitted by Beneficiary in writing to be excluded from coverage thereunder, and an all-risk policy of insurance Resolution No. 04-28-22-8.5 Page 145 of 164 covering loss of future earnings and/or rents from the Mortgaged Property in the event the Mortgaged Property is not ready or available for use or occupancy due to casualty, damage or destruction required to be covered by such builder's all-risk insurance policy will be acquired by Grantor, (ii) policies of insurance covering worker's compensation, employers' liability, commercial general liability and comprehensive automobile liability, including a broad form umbrella/excess liability insurance policy will be carried by each contractor performing work in connection with the Mortgaged Property and (iii) policies of professional liability insurance covering each such party against claims for actual or alleged errors, omissions or negligent acts in the performance of their respective services rendered in respect of the Mortgaged Property will be carried by each design professional performing work in connection with the Mortgaged Property; and  (f) such other insurance against other insurable hazards, risks or casualties which at the time are commonly insured against in the case of owners and premises similarly situated, due regard being given to the financial condition of Grantor, the height and type of the Mortgaged Property, its construction, location, use and occupancy. 6.2. Insurance Companies, Policies, Endorsements and Premium Payments. Grantor agrees that all required insurance will be written on forms acceptable to Beneficiary and by companies having a Best's Insurance Guide Rating of not less than A or A+ and which are otherwise acceptable to Beneficiary, and that such insurance (other than third party liability insurance) shall be written or endorsed so that all losses are payable to Beneficiary. Beneficiary shall be named as an additional insured and a loss payee (as applicable) under all insurance. The copies of policies evidencing such insurance shall be delivered by Grantor to Beneficiary and held by Beneficiary. Each such policy shall expressly prohibit cancellation, reissuance or modification of insurance without thirty (30) days' written notice to Beneficiary. Grantor agrees to furnish due proof of payment of the premiums for all such insurance to Beneficiary promptly after each such payment is made and in any case at least fifteen (15) days before payment becomes delinquent. Any casualty insurance coverage must be in at least an amount sufficient to pay for 100% of replacement cost. 6.3. Beneficiary's Rights to Collect Insurance Proceeds. Grantor hereby assigns to Beneficiary the exclusive right to collect any and all monies that may become payable under any insurance policies covering any part of the Mortgaged Property, or any risk to or about the Mortgaged Property. 6.4. Effects of Foreclosure on Insurance Policies and Post-foreclosure Event Claims. Foreclosure of this Deed of Trust shall automatically constitute foreclosure upon all policies of insurance insuring any part of, or risk to, the Mortgaged Property and all claims thereunder arising from post-foreclosure events. The successful bidder or bidders for the Mortgaged Property at foreclosure, as their respective interests may appear, shall automatically accede to all of Grantor's rights in, under and to such policies and all post-foreclosure event claims, and such bidder(s) shall be named as insured(s) on request, whether or not the trustee's deed or bill of sale to any such successful bidder mentions insurance. Resolution No. 04-28-22-8.5 Page 146 of 164 6.5. Application of Insurance Proceeds Collected Before Foreclosure. Unless an Event of Default has occurred and so long as Beneficiary is satisfied in its reasonable discretion that the applicable proceeds (together with other funds deposited with Beneficiary by or on behalf of Grantor for the purpose of repair and restoration of the applicable damage or destruction) are sufficient to pay all reasonably estimated costs of repair and restoration of the applicable damage or destruction and such repair and restoration can be completed prior to the scheduled maturity of the Note, Beneficiary will hold all proceeds of insurance which was paid for by Grantor or by anyone other than Beneficiary and which proceeds are actually received by Beneficiary before foreclosure (and such other funds deposited with Beneficiary), and will disburse the same as such repairs or restoration are made, upon such terms and conditions as Beneficiary may elect, and upon presentation of satisfactory evidence to Beneficiary that payment is being requested for permissible repair and restoration and without the imposition of any lien on the Mortgaged Property. Any insurance proceeds remaining if Grantor and Beneficiary do not agree to the terms of the advance of the funds for repair and restoration within thirty (30) days after the event producing such funds, or if an Event of Default occurs, or after completion of the repair and restoration, or if the conditions of the preceding sentence are not satisfied, shall be applied in payment of the Indebtedness and the Obligations in the manner Beneficiary chooses or, at the option of Beneficiary, shall be paid to Grantor or to such other person as is legally entitled to them. 6.6. Application of Insurance Proceeds Collected After Foreclosure. Unless Beneficiary or Beneficiary's representative reserves at the foreclosure sale the right to collect any uncollected insurance proceeds recoverable for events occurring before foreclosure (in which event the successful bidder at the sale, if not Beneficiary, shall have no interest in such proceeds and Beneficiary shall apply them, if and when collected, to the payment of the Obligations and then in such order and manner as Beneficiary shall then elect and remit any remaining balance to Grantor or to such other person or entity as is legally entitled to them), all proceeds of all such insurance which are not so reserved by Beneficiary at the foreclosure sale and are not actually received by Beneficiary until after foreclosure shall be the property of the successful bidder or bidders at foreclosure, as their interests may appear, and Grantor shall have no interest in them and shall receive no credit for them. 6.7. Beneficiary Not Obligated to Require, Provide or Evaluate Insurance. Beneficiary shall have no duty to Grantor or anyone else to either require or provide any insurance or to determine the adequacy or disclose any inadequacy of any insurance. 6.8. Beneficiary May Elect to Insure Only its Own Interests. If Beneficiary elects at any time or for any reason to purchase insurance relating to the Mortgaged Property, it shall have no obligation to cause Grantor or anyone else to be named as an insured, to cause Grantor's or anyone else's interests to be insured or protected or to inform Grantor or anyone else that his or its interests are uninsured or underinsured. 6.9. Condemnation: Grantor agrees to notify Beneficiary immediately upon learning of the institution of any proceeding for the condemnation of all or any part of the Mortgaged Property. Grantor agrees, at its expense, to file or defend its claim in that proceeding and to prosecute it with due diligence to a final disposition, and to cause any awards or settlements to be paid to Beneficiary Resolution No. 04-28-22-8.5 Page 147 of 164 for disposition pursuant to the terms of this Deed of Trust. Grantor may be the nominal party in the proceeding, but Beneficiary will be entitled to participate in all decisions with respect to the handling of the proceeding on behalf of Grantor but with the prior consultation with Grantor, and to be represented by counsel of its own choice, and Grantor will deliver to Beneficiary any instruments requested by it to permit its participation. Whether or not there is any such proceeding, if the Mortgaged Property is taken or diminished in value, or if a consent settlement is entered into by or under threat of such a proceeding, or there is a conveyance in lieu of condemnation, the award, settlement or other consideration ("proceeds") payable by virtue of Grantor's interest in the Mortgaged Property will be, and hereby is, assigned and transferred to Beneficiary to be held by it, and will be disbursed as follows: (a) if (i) all of the Mortgaged Property is taken or if so much of the Mortgaged Property is taken or if it is so diminished in value, that the remainder cannot (in Beneficiary's commercially reasonable judgment) continue to be operated profitably for the purpose for which it was being used immediately before the taking or diminution, (ii) an Event of Default then exists, or (iii) the Mortgaged Property is partially taken or diminished in value and (in Beneficiary's sole judgment) need not be rebuilt, restored or repaired in any manner, or (iv) the conditions of Section 6.9(b) are not satisfied, then in any of those events the proceeds will be applied in the manner provided below in Section 6.9(c); or (b) if only a portion of the Mortgaged Property is taken and the portion remaining can (in Beneficiary's commercially reasonable judgment), with rebuilding, restoration or repair, be profitably operated for the purpose for which it was being used immediately before the taking or diminution, then the rebuilding, restoration or repair and the administration and disbursement of the proceeds will, if Beneficiary elects, follow the same procedures and be subject to the same requirements as stated in Section 6.5; otherwise the proceeds will be applied by Beneficiary in the manner provided below in Section 6.9(c). (c) Subject to the terms of Sections 6.9(a) and 6.9(b), all proceeds will be applied in the following manner: (i) first, to reimburse Trustee or Beneficiary for all costs and expenses, including reasonable attorneys' fees, incurred in connection with the collection and administration of the proceeds; and (ii) thereafter, if there is any balance, in the order provided in Sections 5 .6(b) – Article 7. Security Agreement 7.1. Security Interest: This Deed of Trust is a deed of trust on rea l property and also is a security interest under the UCC with respect to the Personalty, Fixtures, Leases, Income and Contractual Rights (collectively, the "Collateral"). To this end, Grantor, as debtor, has GRANTED, BARGAINED, CONVEYED, ASSIGNED, TRANSFERRED and SET OVER, and by these presents does GRANT, BARGAIN, CONVEY, ASSIGN, TRANSFER and SET OVER, unto Beneficiary, as secured party, a security interest in and to all of Grantor's right, title and interest in Resolution No. 04-28-22-8.5 Page 148 of 164 the Collateral, in trust, to secure the full and timely payment of the Indebtedness and the full and timely performance and discharge of the Obligations. 7.2. Grantor's Covenants Concerning Personalty Subject to the UCC: Grantor covenants and agrees with Beneficiary that in addition to and cumulative of any other remedies granted in this Deed of Trust to Beneficiary or the Trustee, upon or at any time after the occurrence of an Event of Default: (a) Beneficiary is authorized, in any legal manner and without breach of the peace, to take possession of the Collateral (Grantor hereby WAIVING all claims for damages arising from or connected with any such taking) and of all books, records and accounts relating thereto and to exercise without interference from Grantor any and all rights which Grantor has with respect to the management, possession, operation, protection or preservation of the Collateral, including the right to sell or rent the same for the account of Grantor and to deduct from such sale proceeds or such rents all costs, expenses and liabilities of every character incurred by Beneficiary in collecting such sale proceeds or such rents and in managing, operating, maintaining, protecting or preserving the Collateral and to apply the remainder of such sales proceeds or such rents on the Indebtedness in such manner as Beneficiary may elect. Before any sale, Beneficiary may, at its option, complete the processing of any of the Collateral and/or repair or recondition the same to such extent as Beneficiary may deem advisable and any sums expended therefor by Beneficiary shall be reimbursed by Grantor. Beneficiary may take possession of Grantor's premises to complete such processing, repairing and/or reconditioning, using the facilities and other property of Grantor to do so, to store any Collateral and to conduct any sale as provided for herein, all without compensation to Grantor. All costs, expenses, and liabilities incurred by Beneficiary in collecting such sales proceeds or such rents, or in managing, operating, maintaining, protecting or preserving such properties, or in processing, repairing and/or reconditioning the Collateral if not paid out of such sales proceeds or such rents as hereinabove provided, shall constitute a demand obligation owing by Grantor and shall bear interest from the date of expenditure until paid at the Past Due Rate (as defined in the Note), all of which shall constitute a portion of the Indebtedness. If necessary to obtain the possession provided for above, Beneficiary may invoke any and all legal remedies to dispossess Grantor, including specifically one or more actions for forcible entry and detainer. In connection with any action taken by Beneficiary pursuant to this Section, Beneficiary shall not be liable for any loss sustained by Grantor resulting from any failure to sell or let the Collateral, or any part thereof, or from other act or omission of Beneficiary with respect to the Collateral unless such loss is caused by the gross negligence, willful misconduct and bad faith of Beneficiary, nor shall Beneficiary be obligated to perform or discharge any obligation, duty, or liability under any sale or lease agreement covering the Collateral or any part thereof or under or by reason of this instrument or the exercise of rights or remedies hereunder. (b) Beneficiary may, without notice except as hereinafter provided, sell the Collateral or any part thereof at public or private sale (with or without appraisal or having the Collateral at the place of sale) for cash, upon credit, or for future delivery, and at such price or prices as Beneficiary may deem best, and Beneficiary may be the purchaser of any and all of the Collateral so sold and may apply upon the purchase price therefor any of the Indebtedness and thereafter hold the same Resolution No. 04-28-22-8.5 Page 149 of 164 absolutely free from any right or claim of whatsoever kind. Upon any such sale Beneficiary shall have the right to deliver, assign and transfer to the purchaser thereof the Collateral so sold. Each purchaser at any such sale shall hold the property sold absolutely free from any claim or right of whatsoever kind, including any equity or right of redemption, stay or appraisal which Grantor has or may have under any rule of law or statute now existing or hereafter adopted. Beneficiary shall give Grantor written notice at the address set forth herein (which shall satisfy any requirement of notice or reasonable notice in any applicable statute) of Beneficiary's intention to make any such public or private sale. Such notice shall be personally delivered or mailed, postage prepaid, at least ten (10) calendar days before the date fixed for a public sale, or at least (10) calendar days before the date after which the private sale or other disposition is to be made, unless the Collateral is perishable or threatens to decline speedily in value. Such notice, in case of public sale, shall state the time and place fixed for such sale or, in case of private sale or other disposition other than a public sale, the time after which the private sale or other such disposition is to be made. Any public sale shall be held at such time or times, within the ordinary business hours and at such place or places, as Beneficiary may fix in the notice of such sale. At any sale the Collateral may be sold in one lot as an entirety or in separate parcels as Beneficiary may determine. Beneficiary shall not be obligated to make any sale pursuant to any such notice. Beneficiary may, without notice or publication, adjourn any public or private sale or cause the same to be adjourned from time to time by announcement at any time and place fixed for the sale, and such sale may be made at any time or place to which the same may be so adjourned. In case of any sale of all or any part of the Collateral on credit or for future delivery, the Collateral so sold may be retained by Beneficiary until the selling price is paid by the purchaser thereof, but Beneficiary shall incur no liability in case of the failure of such purchaser to take up and pay for the Collateral so sold, and in case of any such failure, such Collateral may again be sold upon like notice. Each and every method of disposition described in this Section shall constitute disposition in a commercially reasonable manner. Grantor and, to the extent applicable, other obligors, shall remain liable for any deficiency. (c) Beneficiary shall have all the rights of a secured party after default under the UCC and in conjunction with in addition to or in substitution for those rights and remedies: (i) Beneficiary may require Grantor to assemble the Collateral and make it available at a place Beneficiary designates which is mutually convenient to allow Beneficiary to take possession or dispose of the Collateral; and (ii) (ii) it shall not be necessary that Beneficiary take possession of the Collateral or any part thereof before the time that any sale pursuant to the provisions of this Article is conducted and it shall not be necessary that the Collateral or any part thereof be present at the location of such sale; and (iii) (iii) before application of proceeds of disposition of the Collateral to the Indebtedness, such proceeds shall be applied to the reasonable expenses of retaking, holding, preparing for sale of lease, selling, leasing and the like and the reasonable attorneys' fees and legal expenses incurred by Beneficiary, each obligors, to the extent applicable, to remain liable for any deficiency; and Resolution No. 04-28-22-8.5 Page 150 of 164 (iv) (iv) the sale by Beneficiary of less than the whole of the Collateral shall not exhaust the rights of Beneficiary hereunder, and Beneficiary is specifically empowered to make successive sale or sales hereunder until the whole of the Collateral shall be sold; and, if the proceeds of such sale of less than the whole of the Collateral shall be less than the aggregate of the indebtedness secured hereby, this Deed of Trust and the security interest created hereby shall remain in full force and effect as to the unsold portion of the Collateral just as though no sale had been made; and (v) (v) in the event any sale hereunder is not completed or is defective in the opinion of Beneficiary, or in the event the sufficiency, adequacy or legality of any sale hereunder is questioned or challenged by any person, entity or party, such sale shall not exhaust the rights of Beneficiary hereunder and Beneficiary shall have the right to cause a subsequent sale or sales to be made hereunder; and (vi) (vi) any and all statements of fact or other recitals made in any bill of sale or assignment or other instrument evidencing any foreclosure sale hereunder as to nonpayment of the Indebtedness or as to the occurrence of any default, or as to Beneficiary having declared all of the Indebtedness to be due and payable, or as to notice of time, place and terms of sale and the Collateral to be sold having been duly given, as to any other act or, thing having been duly done by Beneficiary, shall be taken as prima facie evidence of the truth of the facts so stated and recited; and  (vii) (vii) Beneficiary may appoint or delegate any one or more persons as agent to perform any act or acts necessary or incident to any sale held by Beneficiary, including the sending of notices and the conduct of sale, but in the name and on behalf of Beneficiary; and (viii) (viii) demand of performance, advertisement and presence of property at sale are hereby WAIVED and Beneficiary is hereby authorized to sell hereunder any evidence of debt it may hold as security for the Indebtedness. Except as provided in the Loan Agreement, all demands and presentments of any kind or nature are expressly WAIVED by Grantor. Grantor WAIVES the right to require Beneficiary to pursue any other remedy for the benefit of Grantor and agrees that Beneficiary may proceed against any obligors for the amount of the Debt owed to Beneficiary without taking any action against any other obligors or any other person or entity and without selling or otherwise proceeding against or applying any of the Collateral in Beneficiary's possession. 7.3. UCC Rights are not Exclusive: Should Beneficiary elect to exercise its rights under the UCC as to part of the personal property or fixtures described in this Deed of Trust, such election shall not preclude Beneficiary or the Trustee from exercising any or all of the rights and remedies granted by the other Articles of this Deed of Trust as to the remaining Personalty or Fixtures. 7.4. Deed of Trust is Also Financing Statement: Beneficiary may, at its election, at any time after delivery of this Deed of Trust, file an original of this Deed of Trust as a financing statement or sign one or more copies of this Deed of Trust to use as a UCC financing statement. Beneficiary's signature may be placed between the last sentence of this Deed of Trust and Grantor's acknowledgment or may follow Grantor's acknowledgment. Unless otherwise required by applicable law, Beneficiary's signature need not be acknowledged and is not necessary to the Resolution No. 04-28-22-8.5 Page 151 of 164 effectiveness of this Deed of Trust as a deed of trust, mortgage, assignment, pledge, security agreement or as a financing statement. In addition, Beneficiary is authorized to file a financing statement or statements and one or more continuation statements in any jurisdiction where Beneficiary deems it necessary, and at Beneficiary's request, Grantor will join Beneficiary in executing one or more financing statements, continuation statements or both pursuant to the UCC,  in form satisfactory to Beneficiary, and will pay the costs of filing or recording them, in all public offices at any time and from time to time whenever filing or recording of this Deed of Trust, any financing statement or any continuation statement is deemed by Beneficiary or its counsel to be necessary or desirable. For financing statement purposes, the name and address of Debtor is L.U.L.A.C. Oak Hill, Inc., a Texas nonprofit corporation, whose address is ____________________________. The name and address of Secured Party is City of College Station, ________________________. 7.5. No Other Financing Statements on the Collateral: So long as any amount remains unpaid on the Indebtedness, Grantor will not execute and there will not be filed in any public office any financing statements affecting the Collateral other than financing statements in favor of Beneficiary and the Senior Lender, unless prior written specific consent and approval of Beneficiary shall have been first obtained. 7.6. Fixtures. CERTAIN OF THE COLLATERAL IS OR WILL BECOME “FIXTURES” (AS THAT TERM IS DEFINED IN THE UCC) ON THE LAND, AND WHEN THIS DEED OF TRUST IS FILED FOR RECORD IN THE REAL ESTATE RECORDS OF THE COUNTY WHERE SUCH FIXTURES ARE SITUATED, IT SHALL ALSO AUTOMATICALLY OPERATE AS A FINANCING STATEMENT UPON SUCH OF THE COLLATERAL WHICH IS OR MAY BECOME FIXTURES. 7.7. Assignment of Non-UCC Personal Property: To the extent that any of the Collateral is not subject to the UCC of the state or states where it is situated, Grantor hereby assigns to Beneficiary all of Grantor's right, title and interest in the Collateral to secure the Indebtedness. Release of the lien of this Deed of Trust shall automatically terminate this assignment. 7.8. Grantor's Warranties Concerning Collateral: Grantor warrants and represents to Beneficiary that Grantor is the legal and equitable owner and holder of the Collateral free of any adverse claim and free of any security interest or encumbrance except only for the security interest granted hereby in the Collateral and those other security interests (if any) expressly referred to or described in this Deed of Trust (such warranty to supersede any provision contained in this Deed of Trust limiting the liability of Grantor). Grantor agrees to defend the Collateral and its proceeds against all claims and demands of any person at any time claiming the Collateral, its proceeds or any interest in either. Grantor also warrants and represents that (except for the Senior Loan Documents) Grantor has not heretofore signed any financing statement directly or indirectly affecting the Collateral or any part of it which has not been completely terminated of record, and no such financing statement signed by Grantor is now on file in any public office except only those statements (if any) true and correct copies of which Grantor has actually delivered to Beneficiary. Resolution No. 04-28-22-8.5 Page 152 of 164 7.9. Certain Powers of Beneficiary: To facilitate the rights of Beneficiary hereunder, Grantor hereby authorizes Beneficiary, its officers, employees, agents or assigns: (a) after the occurrence of an Event of Default, to collect all or any part of the Collateral without further notice to or further consent by Grantor, and Grantor hereby constitutes and appoints Beneficiary the true and lawful attorney of Grantor (such agency being coupled with an interest), irrevocably, with power of substitution, in the name of Grantor or in its own name or otherwise, to take any of the actions described in the following clauses (b) (c) (d) (e) and (f) of this Section 7.9; (b) after the occurrence of an Event of Default, to ask, demand, collect, receive, receipt for, sue for, compound and give acquittance for any and all amounts which may be or become due or payable under the Collateral and to settle and/or adjust all disputes and/or claims directly with any Collateral obligors and to compromise, extend the time for payment, arrange for payment in installments, otherwise modify the terms of, or release, any of the Collateral, on such terms and conditions as Beneficiary may determine (without thereby incurring responsibility to or discharging or otherwise affecting the liability of Grantor to Beneficiary under this Deed of Trust or otherwise); (c) to direct delivery of, receive, open and dispose of all mail addressed to Grantor and to execute, sign, endorse, transfer and deliver (in the name of Grantor or in its own name or otherwise) any and all receipts or other orders for the payment of money drawn on the Collateral and all notes, acceptances, commercial paper, drafts, checks, money orders and other instruments given in payment or in part payment thereof and all invoices, freight and express bills and bills of lading, storage receipts, warehouse receipts and other instruments and documents in respect of any of the Collateral and any other documents necessary to evidence, perfect and realize upon the security interests and obligations of this Deed of Trust; (d) in its discretion to file any claim or take any other action or proceeding which Beneficiary may deem necessary or appropriate to protect and preserve the rights, titles and interests of Beneficiary hereunder; (e) to sign the name of Grantor to financing statements, drafts against Collateral Obligors, assignments or verifications of any of the Collateral and notices to Collateral Obligors; (f) to station one or more representatives of Beneficiary on Grantor's premises for the purpose of exercising any rights, benefits or privileges available to Beneficiary hereunder or under any of the Credit Documents or at law or in equity, including receiving collections and taking possession of books and records relating to the Collateral; (g) to cause title to any or all of the Collateral to be transferred into the name of Beneficiary or any nominee or nominees of Beneficiary. Grantor hereby authorizes and directs each account debtor and each other person or entity obligated to make payment in respect of any of the Collateral (each a "Collateral Obligor") to pay over to Beneficiary, its officers, agents or assigns, upon demand by Beneficiary, all or any part of the Collateral without making any inquiries as to the status or balance of the secured indebtedness and Resolution No. 04-28-22-8.5 Page 153 of 164 without any notice to or further consent of Grantor. Grantor hereby agrees to indemnify each Collateral Obligor and hold each Collateral Obligor harmless from all expenses and losses which it may incur or suffer as a result of any payment it makes to Beneficiary pursuant to this paragraph. Further, Grantor hereby authorizes Beneficiary, its officers, agents, employers or assigns to notify Collateral Obligors of Beneficiary's security interest in the Collateral. The powers conferred on Beneficiary pursuant to this Section are conferred solely to protect Beneficiary's interest in the Collateral and shall not impose any duty or obligation on Beneficiary to perform any of the powers herein conferred. No exercise of any of the rights provided for in this Section shall constitute a retention of collateral in satisfaction of the indebtedness as provided for in the UCC. 7.10. Standard of Care: Beneficiary shall be deemed to have exercised reasonable care in the custody and preservation of any of the Collateral in its possession if it takes such action for that purpose as Grantor requests in writing, but failure of Beneficiary to comply with such request shall not of itself be deemed a failure to exercise reasonable care, and no failure of Beneficiary to take any action not so requested by Grantor shall be deemed a failure to exercise reasonable care in the custody or preservation of any such Collateral. 7.11. Change Terms, Release Collateral: Beneficiary may extend the time of payment, arrange for payment in installments, otherwise modify the terms of, or release, any of the Collateral, without thereby incurring responsibility to Grantor or discharging or otherwise affecting any liability of Grantor. Beneficiary shall not be required to take steps necessary to preserve any rights against prior parties to any of the Collateral. Article 8. Assignment of Rents and Other Income 8.1. Collateral Assignment of Rents. Grantor, absolutely and unconditionally collaterally assigns the Rents to Beneficiary, whether any Rents are now due, past due or to become due. Upon receipt from Beneficiary of notice that an Event of Default exists, each tenant under the Leases is hereby authorized and directed to pay such Rents thereafter accruing or payable directly to Beneficiary and receipt of Rents by Beneficiary shall be a release of such tenant to the extend of all amounts so paid. Beneficiary shall apply Rents so received against the Indebtedness. Grantor irrevocably appoints Beneficiary its agent to, at any time, demand, receive and enforce payment, to give receipts, releases and satisfactions, and to sue, either in the name of Grantor or in the name of Beneficiary, for all such Rents. Each time Grantor enters into a Lease, such Lease shall automatically become subject to this Section without further action. 8.2. Nonresponsibility. The acceptance by Beneficiary of the collateral assignments with all the rights, powers, privileges and authority so granted will not obligate Beneficiary to assume any obligations in respect of the Leases and Rents or take any action thereunder or to expend any money or incur any expense or perform or discharge any obligation, duty or liability in respect of the Leases and Rents or to assume any obligation or responsibility for the nonperformance of the provisions thereof by Grantor. Resolution No. 04-28-22-8.5 Page 154 of 164 8.3. No "Beneficiary-in-Possession" Status. Neither the collateral assignment of Rents contained in this Deed of Trust, nor the exercise by Beneficiary of any of its rights or remedies under this Deed of Trust shall be deemed to make Beneficiary a "mortgagee-in-possession" or otherwise liable in any manner with respect to the Mortgaged Property, unless Beneficiary, in person or by agent, assumes actual possession thereof. Nor shall appointment of a receiver for the Mortgaged Property by any court at the request of Beneficiary or by agreement with Grantor or the entering into possession of the Mortgaged Property by such receiver, be deemed to make Beneficiary a "mortgagee-in-possession" or otherwise liable in any manner with respect to the Mortgaged Property. 8.4. Additional Covenants, Warranties and Representations Concerning Leases and Rental: Grantor covenants, warrants and represents that: (a) Neither Grantor nor any previous owner has entered into any prior oral or written assignment, pledge or reservation of any of the Rental, entered into any prior assignment or pledge of Grantor's landlord interests in any Lease or performed any act or executed any other instruments which might prevent or limit Beneficiary from operating under and receiving the benefits of the terms and conditions of this Article 8 except the Senior Loan Documents; (b) Grantor has good title to the Leases and Rental and has the authority to assign them, and no other person or entity has any right, title or interest in and to the landlord's interests therein; (c) All existing Leases are valid, unmodified and in full force and effect, except as indicated herein, and no default exists under any Leases; (d) No Rental has been, nor does Grantor anticipate that any Rental will be, waived, released, discounted, set off or compromised, except in accordance with prudent business judgment; (e) Except as disclosed to Beneficiary in writing before the date hereof, Grantor has not received any funds or deposits from any tenant for which credit has not already been made on account of accrued Rental; (f) Grantor will (i) perform all of the material terms and conditions of the Leases, (ii) upon Beneficiary's request, execute an additional assignment to Beneficiary of all Leases then affecting the Mortgaged Property and all Rental and other sums due thereunder by assignment(s) in form and substance satisfactory to Beneficiary and (iii) at the request of Beneficiary, record assignment(s) to Beneficiary Grantor will not, without the prior written consent of Beneficiary, amend, modify, extend, renew, terminate, cancel or surrender any Lease or suffer or permit any of the foregoing, orally or in writing, except in the ordinary course of business; (g) Upon request, Grantor shall give immediate notice to Beneficiary of any notice Grantor received from any tenant or subtenant under any Leases specifying any claimed default by any person under such Leases; (h) Grantor shall enforce the tenants' obligations under the Leases; (i) Grantor shall defend, at Grantor's expense, any proceeding pertaining to the Leases, including, if Beneficiary so requests, any such proceeding to which Beneficiary is a party; Resolution No. 04-28-22-8.5 Page 155 of 164 (i) Grantor shall neither create nor permit any encumbrance upon or assignment of its interest as landlord under the Leases or its interest in the Rental, except for this Deed of Trust and any other encumbrances permitted by this Deed of Trust; (j) Except in the ordinary course of Grantor's business, Grantor shall not waive or release any obligation of any tenant under the Leases without Beneficiary's prior written consent; (k) Each Lease executed after the date hereof shall contain a statement signed by the Grantor that such Lease is subject to this Deed of Trust; (l) Grantor shall from time to time upon written request furnish to Beneficiary, within fifteen (15) days after demand true, correct and complete copies of any Leases or any portion of the Leases specified by Beneficiary; and (m) Grantor shall not in any event collect any Rental more than one (1) month in advance of the time it will be earned (and if Grantor does so, in addition to any other rights or remedies available by reason of such Event of Default, all Rental so collected more than one (1) month in advance of the time it is earned shall be delivered to Beneficiary to be applied to the Obligations). 8.5. Grantor's Indemnities: So long as the assignment of rents contained in this Article 8 is in effect, Grantor shall indemnify and hold Beneficiary harmless from and against any and all  liability, loss, cost, damage or reasonable expense which Beneficiary may incur under or by reason of this assignment of rents or under or arising out of the Leases, or for any action taken by Beneficiary hereunder, or by reason of or in defense of any and all claims and demands whatsoever which may be asserted against Beneficiary arising out of the Leases, other than for Beneficiary's breach of the assignment of rents in this Article 8 or its gross negligence or willful misconduct. In the event Beneficiary incurs any such liability, loss, cost, damage or expense, the amount thereof together with all reasonable attorneys' fees and interest thereon at the Past Due Rate specified in the Loan Agreement shall be payable by Grantor to Beneficiary immediately, without demand, and shall be secured under the Deed of Trust. THE INDEMNITY CONTAINED IN THIS SECTION IS INTENDED TO COVER, AND GRANTOR DOES HEREBY INDEMNIFY BENEFICIARY AGAINST, LIABILITIES, LOSSES, COSTS AND EXPENSES ARISING OUT OF THE SOLE, JOINT OR CONCURRENT NEGLIGENCE (BUT NOT GROSS NEGLIGENCE OR WILLFUL MISCONDUCT) OR STRICT LIABILITY OF BENEFICIARY. 8.6. Subordination of Deed of Trust to Leases: It is agreed and understood that Beneficiary hereby reserves the right and shall have the right, at any time and from time to time, without the consent or joinder of any other person, to subordinate this Deed of Trust and the liens, assignments and security interests created by this Deed of Trust to all or any of the Leases regardless of the respective priority of any of such Leases and this Deed of Trust. Upon doing so and filing evidence of such subordination in the real property records in the county or counties where the Land is located, a foreclosure of Beneficiary's liens, assignments and security interests under this Deed of Trust shall be subject to and shall not operate to extinguish any of said Leases as to which such subordination is operative. Beneficiary will have a period not to exceed ninety (90) days from the date of any foreclosure under this Deed of Trust in which to ratify and confirm any Leases so that Resolution No. 04-28-22-8.5 Page 156 of 164 they remain in full force and effect notwithstanding such foreclosure. The provisions of this Article 8 apply to all Leases, whether or not subject to or prior to this Deed of Trust. 8.7. Texas Assignment of Rents Act. Without in any way limiting or restricting any of Beneficiary's other rights, benefits or privileges under this Deed of Trust or any other Security Document, Grantor and Beneficiary hereby expressly agree that Beneficiary shall be entitled to all rights, benefits or privileges provided for in TARA. This Deed of Trust shall constitute and serve as a security instrument under TARA. Notwithstanding anything to the contrary contained in this Deed of Trust or any other Security Document, Grantor hereby (i) agrees that, to the extent this Deed of Trust or any of the other Security Document contains any notice or cure period, the date on which Beneficiary begins to enforce an assignment of rents under TARA shall not be affected, extended or otherwise modified by reason of such periods, and (ii) waives the thirty (30) day grace period provided for in Section 64.060 of TARA and agrees that, to the extent Grantor collects Rents that Beneficiary is entitled to collect following Grantor's receipt of any notice from Beneficiary in accordance with Section 64.054 of TARA, provided that any Event of Default then exists, Grantor shall immediately turn over all of the proceeds thereof to Beneficiary, without any deduction, setoff or other reduction of any kind. Article 9. The Trustee 9.1. No Liability: The Trustee is not and will not be liable for any error of judgment or act done by the Trustee in good faith, or be otherwise responsible or accountable under any circumstances whatsoever, except for the Trustee's bad faith or willful wrong. In particular, the Trustee will not be personally liable in case of entry by him, or anyone entering by virtue of the powers granted to him, upon the Mortgaged Property, or for debts contracted or liability or damages incurred in the management or operation of the Mortgaged Property. The Trustee may rely on any instrument, document or nature authorizing or supporting any action taken or proposed to be taken by him under this Deed of Trust, which he believes in good faith to be genuine. The Trustee must be reimbursed for expenses incurred in the performance of his duties and to reasonable compensation for his services under this Deed of Trust. Grantor will save him harmless against, any and all liability and expenses which may be incurred by him in the performance of his duties other than those attributable to Trustee's willful misconduct. THIS INDEMNITY IS INTENDED TO COVER, AND GRANTOR DOES HEREBY INDEMNIFY TRUSTEE AGAINST, LIABILITIES, LOSSES, COSTS AND EXPENSES ARISING OUT OF THE SOLE, JOINT OR CONCURRENT NEGLIGENCE (BUT NOT GROSS NEGLIGENCE OR WILLFUL MISCONDUCT) OR STRICT LIABILITY OF TRUSTEE. 9.2. Retention of Monies: All monies received by the Trustee, until used or applied as herein provided, will be held in trust for the purposes for which they were received, but need not be segregated in any manner from any other moneys (except to the extent required by law), and the Trustee has no obligation to pay interest on any moneys received by him. 9.3. Successor Trustees: The Trustee may resign by giving notice in writing to the Beneficiary. If the Trustee dies, resigns, or becomes disqualified from acting as Trustee or fails or refuses to act as Trustee, or if, for any reason, Beneficiary prefers to appoint a substitute trustee to act instead Resolution No. 04-28-22-8.5 Page 157 of 164 of the Trustee, Beneficiary may appoint a substitute trustee and, if preferred, several substitute trustees in succession who will immediately succeed to all the estate, rights, powers and duties of the Trustee. 9.4. Succession Instruments: Any new Trustee appointed under Section 9.3 will be, without any further act, deed or conveyance, vested with all the estates, properties, rights, powers and trusts of his predecessor as if originally named as Trustee. Article 10. Miscellaneous 10.1. Survival of Obligations: Each and all of the Obligations will survive the execution and delivery of the Security Documents, and the consummation of the loan made in connection with the Note, and will continue in full force and effect until the Indebtedness has paid in full. 10.2. Further Assurances: Grantor, upon the request of Trustee or Beneficiary, will execute, acknowledge, deliver and record and/or file any other instruments and take other action as may be necessary, desirable or proper to carry out more effectively the purposes of the Security Documents and to subject to the liens and security interests thereof any property intended by their terms to be covered thereby, including specifically, but without limitation, any renewals, additions, substitutions, replacements or appurtenances to the Mortgaged Property. 10.3. Recording and Filing: Grantor will cause the Security Documents and all amendments, supplements and substitutions to them to be recorded, filed, re-recorded and re-filed in the manner and in those places as Trustee or Beneficiary reasonably request, and will pay all related fees. 10.4. Notices: Unless otherwise expressly provided herein, any notices, requests or other communications required or permitted to be given under this Deed of Trust must be given in writing by delivering it against receipt for it, by depositing it with an overnight delivery service or by depositing it in a receptacle maintained by the United States Postal Service, postage prepaid, registered or certified mail, return receipt requested, addressed to the respective parties at the addresses shown herein (and if so given, shall be deemed given when mailed). Notice sent by any other manner shall be effective upon actual receipt by the party to be notified. Actual notice, however and from whomever given or received, shall always be effective when received. Grantor's address for notice may be changed at any time and from time to time, but only after thirty (30) days' advance written notice to Beneficiary and shall be the most recent address furnished in writing by Grantor to Beneficiary. Grantor's address for notice may be changed at any time and from time to time, but only after ten (10) days' advance written notice from Beneficiary to Grantor and shall be the most recent address furnished in writing by Beneficiary to Grantor. The giving of any notice by Beneficiary which is not expressly required by this Deed of Trust will not obligate Beneficiary to give any future notice. Grantor and any other parties to this Deed of Trust hereby request that a copy of any notice of default and a copy of any notice of sale be mailed to them at the addresses provided in this Deed of Trust. 10.5. No Waiver; Payment on Account: Any failure by the Trustee or Beneficiary to insist, or any election by Trustee or Beneficiary not to insist, upon strict performance by Grantor of any of the provisions of any of the Security Documents will not be deemed to be a waiver of that or of Resolution No. 04-28-22-8.5 Page 158 of 164 any other provision, and Trustee or Beneficiary will have the right at any time or times thereafter to insist upon strict performance by Grantor of any and all of the provisions. Acceptance of any payment in an amount less than the amount actually due will be applied to the Indebtedness but will not affect Grantor's default for failure to pay the full amount. Receipt or acceptance by Beneficiary of any payment in an amount less than the amount then due on the Indebtedness or under the Security Documents will be deemed an acceptance on account only, and the failure to pay the entire amount then due will continue to be an Event of Default. 10.6. Future Advances: This Deed of Trust shall secure the Note and any and all future advances made to Grantor by Beneficiary. This provision shall not constitute an obligation upon or commitment of Beneficiary to make additional advances or loans to Grantor. 10.7. Right to Contest: Notwithstanding anything contained herein to the contrary, Grantor will not be deemed to be in default hereunder for allowing, suffering or failing to pay, as applicable, any Taxes or Charges, mortgage, pledge, lien (statutory, constitutional or contractual), security interest, easement, restrictive covenant, encumbrance or mechanics lien on or covering any of the Mortgaged Property (collectively "Encumbrances") or foreclosure thereof or with respect thereto that would, in the absence of this Section, with notice or passage of time or otherwise, constitute an Event of Default hereunder if Grantor is, in good faith, by appropriate proceedings, contesting the validity, applicability or amount, as applicable, of any such Encumbrances; provided, however, that such contest must stay or prevent a proceeding which may impair or divest Grantor of title to the Mortgaged Property or which may affect the priority of the lien granted under the Deed of Trust, and Beneficiary may, as a condition to such right to contest, require Grantor to establish an escrow or give other security adequate (in Beneficiary's sole d iscretion) to compensate Beneficiary for any loss, costs or expenses which it may suffer or incur as a result of such divestiture or impairment of title or invalidity or loss of priority of the liens created by this Deed of Trust (which escrow or security will be returned to Grantor upon payment or release of the Encumbrances). Grantor shall promptly cause to be paid any amount adjudged by a court of competent jurisdiction to be due, with all costs, penalties and interest, promptly after the judgment becomes final; provided, however, that in any event each contest must be concluded and the sums due must be paid prior to the date any writ or order is issued under which the Mortgaged Property may be sold. 10.8. No Late Cure: Following the occurrence of an Event of Default, Beneficiary may at its option elect to accept a late cure of any fact, circumstance or condition that gave rise to such Event of Default and to reinstate the Note and the Loan Agreement, but nothing contained in this Deed of Trust or in any of the Security Documents will obligate Beneficiary to accept such late cure under any circumstances unless expressly agreed to in writing by Beneficiary or such acceptance is otherwise required by law. 10.9. Successors and Assigns: Subject to the restrictions in Section 3.19, all of the terms of the Security Documents apply to, and are binding upon and inure to the benefit of the parties to them, their respective successors, assigns, heirs and legal representatives, and all other persons claiming by, through or under them. In the event the ownership of all or any part of the Mortgaged Property is transferred to a person other than Grantor, Beneficiary may, without notice to Grantor, deal with successor or successors in interest in the same manner as with Grantor, without in any way Resolution No. 04-28-22-8.5 Page 159 of 164 affecting the provisions of this section or discharging Grantor's liability for the payment of the Indebtedness. No sale of the Mortgaged Property, or forbearance on the part of the Beneficiary or extension of the time for the payment of the Indebtedness will release, discharge, modify, change or affect, in whole or in part, the liability of Grantor. When an assignment or other transfer is made in accordance with this paragraph, then "Grantor" will include the assignee or transferee. 10.10. Severability; Savings from Usury: If any provision of any of the Security Documents or their application to any person or circumstance is invalid or unenforceable, neither the remainder of the instrument in which that provision is contained, nor the application of that provision to other persons or circumstances, nor other instruments, will be affected, and that provision will be enforceable to the greatest extent permitted by law. In no event shall any provision of this Deed of Trust, any of the Security Documents or any other instrument evidencing or securing the Indebtedness ever obligate Grantor to pay interest on the Note or any other Note secured hereby at a rate greater than that permitted by law, or obligate Grantor to pay any taxes, assessments, charges, insurance premiums, or other amounts to the extent that the payments, when added to the interest payable on the Note or any other Note secured hereby, would be held to constitute the payment by Grantor of interest at a rate greater than that permitted by law. 10.11. Indebtedness May be Changed without Affecting this Deed of Trust: Any of the Indebtedness may be extended, rearranged, renewed, increased or otherwise changed in any way, and any part of the security described in this Deed of Trust or any other security for any part of the Indebtedness may be waived or released without in any way altering or diminishing the force,  effect or lien of this Deed of Trust, and the lien, assignment and security interest granted by this Deed of Trust shall continue as a prior lien, assignment and security interest on all of the Mortgaged Property not expressly so released, until the final termination of this Deed of Trust. 10.12. Counterparts: This Deed of Trust may be executed in any number of counterparts, and will be effective when signed by the Grantor, and each of which will be an original and all of which together will constitute one instrument. 10.13. Release of and Resort to Security: Beneficiary may release, regardless of consideration, any part of the Mortgaged Property without, as to the remainder, in any way impairing, affecting, subordinating or releasing the lien or security interests created in or evidenced by the Security Documents or their stature as a first and prior lien and security interest in and to the Mortgaged Property. For payment of the Indebtedness, Beneficiary may resort to any other security therefor held by Trustee in such order and manner as Beneficiary may elect. If any of the Indebtedness cannot be lawfully secured by this Deed of Trust or if any part of the Mortgaged Property cannot be lawfully subject to this lien and security interest to the full extent of the Indebtedness, then all payments made will be applied on the Indebtedness first in discharge of that portion which is unsecured. 10.14. Subrogation: If any or all of the proceeds of the Note have been or are used to extinguish, extend or renew any prior indebtedness, lien, security interest or other encumbrance against all or any part of the Mortgaged Property, then, to that extent, the Indebtedness and this Deed of Trust will be subrogated to all of the rights, claims, liens, titles and interests previously existing to secure Resolution No. 04-28-22-8.5 Page 160 of 164 the indebtedness so extinguished, extended or renewed and the former rights, claims, liens, titles and interests, if any, are not waived but are continued in full force and effect in favor of Beneficiary and are merged with the lien and security interest created herein as cumulative security for the repayment of the Indebtedness and the satisfaction of the Obligations. 10.15. Headings and References: The headings in this Deed of Trust are for convenience of reference only and in no way alter, modify, define, or limit the scope of any of the provisions in this Deed of Trust. References in this Deed of Trust to article or section numbers are references to articles and sections in this Deed of Trust, unless otherwise indicated. 10.16. Gender: Any gender used herein includes and applies to all gender, including the neuter. 10.17. Vendor's Lien: If any vendor's lien is retained in favor of Beneficiary in the conveyance of the Mortgaged Property to Grantor, then this Deed of Trust is cumulative of and does not exclude the remedies provided for the enforcement of the vendor's lien. 10.18. Statutory Deficiency Liability: Notwithstanding the provisions of §51.003, 51.004 and 51.005 of the Texas Property Code (as the same may be amended from time to time), and to the extent permitted by law, Grantor agrees that Beneficiary shall be entitled to seek a deficiency judgment from Grantor and any other party obligated on the Note or the other Security Documents equal to the difference between the amount owing on the Note and the amount for which the Mortgaged Property was sold pursuant to a judicial or nonjudicial foreclosure sale. Grantor expressly recognizes that this Section constitutes a waiver of the above-cited provisions of the Texas Property Code which would otherwise permit Grantor and other persons against whom recovery of deficiencies is sought, or any guarantors independently (even absent the initiation of deficiency proceedings against them) to present competent evidence of the fair market value of the Mortgaged Property as of the date of foreclosure and offset against any deficiency the amount by which the foreclosure sale price is determined to be less than such fair market value. Grantor further recognizes and agrees that this waiver creates an irrebuttable presumption that the foreclosure price is equal to the fair market value of the Mortgaged Property for purposes of calculating deficiencies owed by Grantor and others against whom recovery of a deficiency is sought. In the event that the waiver set forth in this Section is held invalid, illegal or unenforceable in any respect for any reason, Grantor agrees to submit its competent evidence of fair market value to the judge, instead of a jury, of a court of competent jurisdiction as the finder of fact under the above-cited provisions of the Texas Property Code and further agree that the term "fair market value" shall include those matters required by law and shall also include the additional factors set forth below: (a) The Mortgaged Property is to be valued "AS IS" and "WITH ALL FAULTS" and there shall be no assumption of restoration of or refurbishment of improvements, if any, after the date of the foreclosure; (b) There shall be an assumption of a prompt resale of the Mortgaged Property or an all cash sales price by the purchaser at the foreclosure sale; and Resolution No. 04-28-22-8.5 Page 161 of 164 (c) An offset to the fair market value of the Mortgaged Property, as determined hereunder, shall be made by deducting from such value the reasonable estimated closing costs relating to the sale of the Mortgaged Property by the purchaser at the foreclosure sale, including but not limited to, brokerage commissions, attorneys' fees, title policy expenses, tax proration, escrow fees, and other common charges which are incurred by a seller of property. 10.19. Limitation on Indemnities: Notwithstanding anything to the contrary contained in this Deed of Trust, in no event shall any indemnification by Grantor be applicable to any acts, omissions,, events, facts or circumstances that occur wholly after the date on which the lien of this Deed of Trust is fully and finally foreclosed (with all redemption periods having expired) or a conveyance by deed in lieu, of foreclosure is fully and finally effective and possession of the Mortgaged Property has been given to the purchaser or grantee free of occupancy, claims of occupancy or redemption by Grantor or any Obliger; provided, however, if such foreclosure or conveyance is challenged, in bankruptcy proceedings or otherwise, such date shall be deemed not to have occurred until such challenge is validly released, dismissed with prejudice or otherwise barred by law from further assertion; provided, further, this Section 10.19 shall not apply to any acts, omissions, events, facts or circumstances caused by Grantor or its agents. 10.20. Construction Mortgage: This Deed of Trust is a construction mortgage under the UCC to secure an obligation incurred for the construction of an improvement on land, including the acquisition costs of the land. This Deed of Trust secures a construction loan, and it will be subject to the terms of a construction loan agreement between Grantor and Beneficiary. Any materials, equipment or supplies used or intended for use in the construction, development, or operation of the Mortgaged Property, whether stored on or off the Mortgaged Property, shall also be subject to the lien of this Deed of Trust and Grantor, or Grantor's contractor if loan proceeds are paid to such contractor, shall apply the loan proceeds to the payment of lawful claims for labor and material furnished for such construction. 10.21. Construction: Wherever used in this Deed of Trust, unless the context clearly indicates a contrary intent or unless otherwise specifically provided herein, the word "Grantor" means "Grantor and/or any subsequent owner or owners of the Mortgaged Property," the word "Beneficiary" means "Beneficiary or any subsequent holder or holders of this Deed of Trust," the word "Note" is a part of "the indebtedness secured by this Deed of Trust" and the word "person" means "an individual, corporation, partnership, unincorporated association, joint venture, joint stock association, business or other trust or any other form of entity" and the word "will" has the same meaning as "shall." The masculine and neuter genders used in this Agreement each includes the masculine, feminine and neuter genders, and whenever the singular number is used, the same shall include the plural where appropriate, and vice versa. Wherever the term "including" or a similar term is used in this Agreement, it shall be read as if it were written "including by way of example only and without in any way limiting the generality of the clause or concept referred to."  The section headings contained herein are included as a matter of convenience and are not intended to define, limit or modify the terms of this Deed of Trust, and unless otherwise provided references to Sections are to the Sections in this Deed of Trust. Resolution No. 04-28-22-8.5 Page 162 of 164 10.22. Choice of Law. This Deed of Trust shall be performable and enforced in Brazos County, Texas, and shall be construed in accordance with the laws of the State of Texas from time to time in effect except to the extent preempted by the United States federal law. Venue shall be appropriate in Brazos County, as applicable. 10.23. JURY WAIVER. GRANTOR AND BENEFICIARY ACKNOWLEDGE THAT THE RIGHT TO TRIAL BY JURY IS A CONSTITUTIONAL ONE, BUT THAT IT MAY BE WAIVED, EACH PARTY, AFTER CONSULTING (OR HAVING HAD THE OPPORTUNITY TO CONSULT) WITH COUNSEL OF THEIR CHOICE, KNOWINGLY AND VOLUNTARILY, AND FOR THEIR MUTUAL BENEFIT, WAIVES ANY RIGHT TO TRIAL BY JURY IN THE EVENT OF LITIGATION REGARDING THE PERFORMANCE OR ENFORCEMENT OF, OR IN ANY WAY RELATED TO, THIS NOTE, THE INDEBTEDNESS OR THIS DEED OF TRUST. 10.24. THIS DEED OF TRUST, THE NOTE, AND THE OTHER SECURITY DOCUMENTS EMBODY THE ENTIRE AGREEMENT AND UNDERSTANDING BETWEEN GRANTOR AND BENEFICIARY RELATING TO THE SUBJECT MATTER HEREOF AND SUPERSEDE ALL PRIOR PROPOSALS, NEGOTIATIONS, AGREEMENTS AND UNDERSTANDINGS RELATING THERETO AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN OR ORAL AGREEMENTS BETWEEN THE PARTIES. EXECUTED as of the date of the acknowledgement set forth below; to be effective, however, for all purposes as of the date first set forth above. _________________________ THE STATE OF TEXAS  §  §  ACKNOWLEDGMENT  COUNTY OF BRAZOS  §      This instrument was acknowledged before me on the _______ day of _____________, 20__, by _____________________, in their capacity as __________________ of L.U.L.A.C. Oak Hill, Inc.       Resolution No. 04-28-22-8.5 Page 163 of 164 Notary Public in and for the State of Texas  Resolution No. 04-28-22-8.5 Page 164 of 164