BancCentral, a National Banking Association v. LBJ Enterprises, LLC

IN THE DISTRICT COURT IN AND FOR WOODS COUNTY STATE OF OKLAHOMA BancCentral, a National Banking Association, Plaintiff, v. LBJ Enterprises, LLC; David Lutz; Jarrett Portz; and Leslie LaMastus, Defendants. Case No. CJ-2024-26 VERIFIED PETITION Plaintiff BancCentral, National Association (the “Bank”) alleges and states as follows: GENERAL 1. The Bank is a national banking association with its principal place of business in the State of Oklahoma. 2. Defendant LBJ Enterprises, LLC (“LBJ”) is a Delaware limited liability company with its principal place of business in Arizona. 3. Defendant Jarrett Portz (“Portz”) is an individual residing in Arizona. 4. Defendant Leslie LaMastus (“LaMastus”) is an individual residing in Nebraska. 5. This is, among other things, an action to recover payment of a loan made by the Bank in Woods County, Oklahoma, to LBJ and guaranteed by Defendants Portz and LaMastus (“Guarantors”). 6. This Court has jurisdiction over the parties and the subject matter of this action. 7. Venue is proper in Woods County, Oklahoma pursuant to 12 O.S. § 142 and LBJ’s express written consent to the same. FIRST CAUSE OF ACTION (Action on Promissory Note) For the first cause of action, the Bank states: 8. Allegations made elsewhere are incorporated herein by reference. 9. On or about October 27, 2021, LBJ executed and delivered to the Bank at its principal place of business in Woods County, Oklahoma, a Promissory Note (Loan No. 26600) in the original principal amount of $7,860,000.00 (the “Note”). A true and correct copy of the Note is attached as Exhibit “A” hereto. 10. At the same time, LBJ executed and delivered to BancCentral a Loan Agreement (the “Loan Agreement”). A true and correct copy of the Loan Agreement is attached as Exhibit “B” hereto. 11. The Bank is the lawful holder of the Note and Loan Agreement. 12. LBJ has, among other things, failed to perform under the Loan Agreement by allowing affiliates to default on other debts to the Bank (“Events of Default”). Separately, Portz has defaulted on multiple of his other obligations to the Bank (also “Events of Default”). 13. The Bank further has determined in good faith that a material adverse change has occurred in LBJ’s financial condition and that the prospect for payment or performance of the loan is impaired. 14. The Bank initially gave notice to LBJ of the foregoing default on February 22, 2024, and afforded it an opportunity to cure the same. 15. In good faith, the Bank afforded LBJ a second opportunity to cure the default and remit payment in full of the indebtedness on July 12, 2024. 16. Despite ample time and multiple opportunities to do so, LBJ has failed and refused to cure the default and remit payment in full of the indebtedness with respect to the Note. 17. There is due and owing under the Note the principal sum of $2,586,199.63, together with interest accrued through July 12, 2024, in the amount of $6,554.06, and interest accruing on the principal after July 12, 2024, at the rate of $655.41 per day until paid in full. 18. The Bank has been compelled to employ attorneys to prosecute this action and is entitled to reasonable attorney’s fees and other reasonable costs of collection under the terms of the Note and Oklahoma state law. WHEREFORE, the Bank requests in personam judgement in favor of the Bank and against LBJ on the Note in the principal sum of $2,586,199.63, together with interest accrued through July 12, 2024, in the amount of $6,554.06, interest accruing on the principal after July 12, 2024, at the rate of $655.41 per day until paid in full, and the Bank’s fees and other reasonable costs of collection, and such other relief as the Court may deem just and proper. SECOND CAUSE OF ACTION (Action on Guaranty) For its second cause of action, the Bank states: 19. Allegations made elsewhere are incorporated herein by reference. 20. As part and parcel of the same transaction, Guarantors executed and delivered to the Bank an unlimited Guaranty Agreement dated October 27, 2021 (the “Guaranty”) to secure repayment of the Note. A true and correct copy of the Guaranty is attached as Exhibit “C” hereto. 21. The Guaranty is in default by virtue of the Events of Default. 22. Under the terms of the Guaranty, the Bank is entitled to pursue collection of the Note against Guarantors without first pursuing or exhausting any other related right or remedy available to the Bank. 23. Further, the Bank is entitled to recover its fees and costs of collection, including reasonable attorneys' fees from Guarantors under the terms of the Guaranty. WHEREFORE, the Bank requests in personam judgement in favor of the Bank and against Guarantors, jointly and severally, in the principal sum of $2,586,199.63, together with interest accrued through July 12, 2024, in the amount of $6,554.06, interest accruing on the principal after July 12, 2024, at the rate of $655.41 per day until paid in full, and the Bank’s fees and other reasonable costs of collection, and such other relief as the Court may deem just and proper THIRD CAUSE OF ACTION (Declaratory Action Regarding Deed of Trust) For its third cause of action, the Bank states: 24. Allegations made elsewhere are incorporated herein by reference. 25. On or about October 27, 2021, LBJ executed and delivered to the Bank that certain Deed of Trust and Security Agreement (the “Deed of Trust”) covering certain real property located in Bernalillo County, New Mexico and enumerated fixtures, improvements, and personal property (the “Collateral”). A copy of the Deed of Trust is attached as Exhibit “D” hereto. 26. The Deed of Trust is binding upon LBJ and creates a valid interest on the part of the Bank in the Collateral. 27. The Deed of Trust is in default by reason of the Events of Default. WHEREFORE, the Bank requests a declaratory judgment determining the Deed of Trust is a valid lien on the Collateral, the Deed of Trust is in default by reason of the Events of Default, and the Bank is entitled under the terms of the Deed of Trust to foreclose its interest in the Collateral in the appropriate forum, and such other relief as the Court may deem just and proper. Daniel V. Carsey, OBA No. 21490 Bryan R. Lynch, OBA No. 33559 Morgan M. Lawson, OBA No. 35163 HALL, ESTILL, HARDWICK, GABLE, GOLDEN & NELSON, P.C. 100 North Broadway, Suite 2900 Oklahoma City, OK 73102-8865 Telephone: (405) 553-2313 Facsimile: (405) 553-2855 ATTORNEYS FOR BANCCENTRAL VERIFICATION STATE OF OKLAHOMA ) COUNTY OF WOODS ) SS: I, Taylor Horst, being of lawful age and duly sworn upon oath, state that I have read the foregoing, that I am familiar with the matters set out therein, and that the same are true and correct to the best of my information and belief. Taylor Horst, Duly Authorized Agent for BancCentral, a national banking association Subscribed and sworn before me July 7, 2024. (SEAL) Notary Public My Commission Expires: ____________ Commission Number: ________________ EXHIBIT "A" PROMISSORY NOTE $7,860,000.00 October 27, 2021 FOR VALUE RECEIVED, LBJ ENTERPRISES LLC, a Delaware limited liability company, having an address at 513 N Lake Havasu, Lake Havasu City, AZ 86403 ("Borrower"), promises to pay to the order of BANCCENTRAL, NATIONAL ASSOCIATION, a national banking association ("Bank"), at the following address: 604 Flynn Street, PO Box 667, Alva, Oklahoma 73717, or such other place as the holder hereof may from time to time designate in writing, the principal sum of Seven Million Eight Hundred Sixty Thousand and No/100 Dollars ($7,860,000.00) in lawful money of the United States of America, with interest thereon to be computed from the date of disbursement under this Promissory Note (this "Note") at the Interest Rate (hereinafter defined). 1. Repayment. a. Borrower shall make payments in arrears of principal and interest hereunder in an amount sufficient to fully-amortize the unpaid balance of the Loan over an amortization period equal to 240 months, at the Interest Rate. Such payments of principal and interest shall be paid on the first day of the month following the Closing Date, and on the first day of each consecutive month thereafter, ending on October 27, 2041 (the "Maturity Date"), on which date the entire principal balance of this Note then unpaid and all accrued interest then unpaid and all other amounts due hereunder shall be finally due and payable. b. Except as otherwise expressly provided herein, all payments of principal, interest, and other amounts to be made by Borrower under the Loan Documents shall be made to Bank in U.S. Dollars and in immediately available funds, without setoff, deduction, or counterclaim, not later than 4:00 P.M. central standard time on the date on which such payment shall become due (each such payment made after such time on such due date to be deemed to have been made on the next succeeding Business Day). Whenever any payment under any Loan Document shall be stated to be due on a day that is not a Business Day, such payment may be made on the next succeeding Business Day, and such extension of time shall in such case be included in the computation of the payment of interest and fees, as the case may be 2. Interest Rate. Prior to the occurrence of an Event of Default, interest shall accrue on the unpaid principal balance of this Note (computed on the basis of a 365-day year and the actual number of days elapsed in any year) from the date hereof at a variable interest rate equal to one percent (1.00%) plus the Prime Rate per annum (the "Interest Rate"). The Interest Rate shall reset every five (5) years. "Prime Rate" shall be, for any day, a rate per annum equal to the rate last quoted by The Wall Street Journal as the "Prime Rate" in the United States. 3. Application. All payments on this Note shall be applied at any time and from time to time in the following order: (a) the payment or reimbursement of any expenses (including, but not limited to, late charges), costs or obligations (other than the principal hereof and interest hereon) for which Borrower shall be obligated or Bank entitled pursuant to the provisions hereof or of the Loan Agreement or the other Loan Documents, (b) the payment of accrued but unpaid interest thereon, (c) the payment of unpaid escrow amounts (if any) required under the Loan Documents, and (d) the payment of all or any portion of the principal balance then outstanding hereunder, in either the direct or inverse order of maturity, at Bank’s option. 4. Late Charge. If any payment hereunder (other than the final payment due on the Maturity Date or acceleration of all amounts due hereunder) is not actually received by Bank by close of business on the fifteenth (15th) day after the date on which it was due, Borrower shall pay to Bank an amount (the "Late Charge") equal to the lesser of five percent (5%) of such unpaid portion of the late payment or the maximum amount permitted by applicable law, to defray the expenses incurred by Bank in handling and processing such delinquent payment and to compensate Bank for the loss of the use of such delinquent payment. All such Late Charges shall be automatically due and payable without notice or demand and shall be secured by the Mortgage and the other Loan Documents. 5. Prepayment. The principal balance of this Note may be prepaid by Borrower in whole or in part at any time upon the payment of: (i) all accrued interest to and including the date that such prepayment is received by Bank in immediately available funds at the Interest Rate and/or the Default Rate, as applicable, (ii) the portion of the principal balance being prepaid, and (iii) all other sums, if any, then due under this Note, the Loan Agreement or any of the Loan Documents. All prepayments will be applied to the principal balance of the Loan in inverse order of maturity and will not change the monthly payment amount referenced in Section 1 above. 6. Acceleration. Upon the occurrence of an Event of Default under the Loan Agreement or any other Loan Document, the whole of the Obligations, including, without limitation, the principal sum of this Note, all accrued interest and all other sums due under this Note, the Loan Agreement and the other Loan Documents shall, without notice, become due and payable at the option of Bank: provided, however, that if any Loan Document provides for automatic acceleration of payment of sums owing hereunder, all sums owing hereunder shall be automatically and immediately due and payable in accordance with the terms of such Loan Document. Additionally, Bank may exercise any and all rights and remedies provided under any of the Loan Documents or to which it is entitled under applicable law. 7. Default Interest. Upon the occurrence and during the continuance of an Event of Default under the Loan Agreement or any other Loan Document (including, without limitation, the failure of Borrower to pay this Note in full on the Maturity Date), Bank shall be entitled to receive, and Borrower shall pay, interest on the entire unpaid principal balance at the rate (the "Default Rate") equal to five percent (5.0%) above the Interest Rate; provided, however, that notwithstanding the foregoing, in no event shall the Default Rate exceed the Maximum Rate (hereinafter defined). The Default Rate shall be computed from the occurrence of the Event of Default until the actual payment in full of the Note. This charge shall be added to the amount due hereunder, and shall be deemed secured by the Mortgage and the other Loan Documents. This clause, however, shall not be construed as an agreement or privilege to extend the Maturity Date, nor as a waiver of any other right or remedy accruing to Bank by reason of the occurrence of any Event of Default. 8. Collateral. This Note is secured by the Collateral, including, without limitation, the Mortgaged Property and the fixtures located thereon. 9. Attorney Fees. In the event that Bank employs attorney(s) to collect the amounts due hereunder, to enforce the provisions of this Note or to protect or foreclose the Mortgage or take any other action with respect to the Collateral, Borrower agrees to pay Bank's reasonable attorney fees and disbursements, whether or not suit be brought. Such fees shall be due and payable immediately upon demand by Bank. 10. Limit of Validity. This Note is subject to the express condition that at no time shall Borrower be obligated or required to pay interest or other charges on this Note at a rate which may subject Bank to civil or criminal liability as a result of such rate exceeding the maximum interest rate which Borrower is permitted to pay by applicable law (the "Maximum Rate"). If by the terms of this Note, Borrower is at any time required or obligated to pay interest or other charges on this Note at a rate in excess of the Maximum Rate, the rate of interest due under this Note shall be deemed to be immediately reduced to the Maximum Rate and any previous payments in excess of the Maximum Rate shall be deemed to have been payments in reduction of principal and not on account of the interest due hereunder. 11. Setoff. In support of its obligations under this Note, Borrower hereby grants Bank a security interest in all deposit accounts maintained by Borrower with Bank, together with all net credit balances contained therein, and further, grants Bank a right of setoff against any such net credit balances which Bank may exercise at any time an Event of Default occurs and continues or if Borrower fails to timely pay any amount due under this Note. 12. No Oral Amendments. This Note may not be modified, amended, waived, extended, changed, discharged or terminated orally or by any act or failure to act on the part of Borrower or Bank, but only by an agreement in writing signed by the party against whom enforcement of any modification, amendment, waiver, extension, change, discharge or termination is sought. 13. Assignment. This Note may be freely transferred and assigned by Bank, its successors, endorsees and assigns. Borrower may not transfer its rights and obligations with respect to this Note, without the express written approval of Bank. 14. Applicable Law. This Note shall be governed and construed in accordance with the laws of the State of Oklahoma. 15. Consent to Jurisdiction. This Note is subject to the provisions of Section 10.16 of the Loan Agreement with respect to consent to jurisdiction. 16. Waiver of Presentment, Etc. Borrower and all others who may become liable for the payment of all or any part of this Note do hereby severally waive presentment and demand for payment, notice of dishonor, protest, notice of protest, and notice of intent to accelerate the maturity hereof (and of such acceleration). Borrower also waives all defenses based on suretyship or impairment of collateral. 17. **No Waiver.** Any failure by Bank to insist upon strict performance by Borrower of any of the provisions of this Note or the other Loan Documents shall not be deemed to be a waiver of any of the terms or provisions of this Note or the other Loan Documents, and Bank shall have the right thereafter to insist upon strict performance by Borrower of any and all of the terms and provisions of this Note and the other Loan Documents. 18. **Defined Terms; Incorporation by Reference.** Capitalized terms used herein and not otherwise defined herein have the meanings assigned to them under the Loan Agreement dated of even date herewith between Borrower and Bank (as amended, modified or restated from time to time, the "Loan Agreement"). Where appropriate, the singular number shall include the plural, the plural shall include the singular, and the words "Bank" and "Borrower" shall include their respective successors and permitted assigns. 19. **Severability.** If any term, covenant or condition of this Note is held to be invalid, illegal or unenforceable in any respect, this Note shall be construed without such provision. 20. **Notices.** All notices, demands, requests, consents, approvals and other communications required or permitted hereunder ("Notices") must be in writing (except as may be, agreed otherwise above with respect to borrowing requests) and will be effective upon receipt. Notices shall be given in the manner provided for in the Loan Agreement. 21. **Time of the Essence.** Time shall be of the essence in the performance of all obligations of Borrower hereunder. BORROWER AND BANK HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED ON THE LOAN EVIDENCED BY THIS NOTE OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS NOTE, THE MORTGAGE OR ANY OF THE OTHER LOAN DOCUMENTS, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENT (WHETHER VERBAL OR WRITTEN) OR ACTION OF BORROWER OR BANK. THIS PROVISION IS A MATERIAL INDUCEMENT FOR BANK'S MAKING OF THE LOAN EVIDENCED BY THIS NOTE AND SECURED BY THE MORTGAGE AND THE OTHER LOAN DOCUMENTS. [Signature Page Follows] IN WITNESS WHEREOF, Borrower has duly executed this Promissory Note to be effective as of the day and year first above written. BORROWER: LBJ ENTERPRISES LLC, a Delaware limited liability company By: _______________________________ Name: Jared Ratz Its: MANAGER EXHIBIT "B" LOAN AGREEMENT This Loan Agreement (this "Agreement") is made and entered into as of October 27, 2021, by and between L.BJ ENTERPRISES LLC, a Delaware limited liability company ("Borrower"), and BANC CENTRAL, NATIONAL ASSOCIATION, a national banking association ("Bank"). RECITALS A. Borrower has requested a loan from Bank in the principal amount of Seven Million Eight Hundred Sixty Thousand and No/100 Dollars ($7,860,000.00) in the form of a single advance term loan (the "Loan") for the purpose of financing or refinancing the costs of acquisition of the real property that will serve as security for the Loan. B. Bank is willing to extend the Loan to Borrower on the terms and conditions set forth in this Agreement. AGREEMENT In consideration of mutual agreements set forth below, the parties agree as follows: SECTION 1 DEFINITIONS 1.1 Defined Terms. For purposes of this Agreement, the following terms have the following meanings: "Affiliate" means with respect to any Person: (i) any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person, (ii) any other Person that owns, directly or indirectly, fifty-one percent (51%) or more of such Person's capital stock (or other membership interest), or (iii) any officer, director or manager of any such Person. "Beneficial Ownership Certification" means a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation. "Beneficial Ownership Regulation" means C.F.R. § 1010.230. "Closing Date" means the date of this Agreement. "Collateral" means the Mortgaged Property, together with any and all other property now or hereafter granted to Bank by Borrower or any Third Party as security for the Loan. "Control" means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ownership of voting securities or interests, by contract, or otherwise, and "Controlling" and "Controlled" shall have meanings correlative thereto. "Coors Environmental Report" means that certain Phase I Environmental Site Assessment, Project No. 66217123, prepared by Terracon Consultants, Inc., dated July 29, 2021. "Coors Mortgage" means the Deed of Trust and Security Agreement dated of even date herewith, executed by Borrower in favor of Bank and encumbering the Coors Property. "Coors Property" means that certain real property located at 500 Coors Boulevard, Albuquerque, New Mexico. "Disposal" means the intentional or unintentional abandonment, discharge, deposit, injection, dumping, spilling, leaking, storing, burning, thermal destruction, or placing of any Hazardous Substances so that it or any of its constituents may enter the Environment. "Environment" means any water including, but not limited to, surface water and ground water or water vapor; any land including land surface or subsurface; stream sediments; air; fish, wildlife, or plants; and all other natural resources or environmental media. "Environmental Laws" means all federal, state, and local environmental, land use, zoning, health, chemical use, safety and sanitation laws, statutes, ordinances, regulations, codes, and rules relating to the protection of the Environment and/or governing the use, storage, treatment, generation, transportation, processing, handling, production, or Disposal of Hazardous Substances and the policies, guidelines, procedures, interpretations, decisions, orders, and directives of federal, state, and local governmental agencies and authorities with respect thereto. "Environmental Permits" means all licenses, permits, approvals, authorizations, consents, or registrations required by any applicable Environmental Laws and all applicable judicial and administrative orders in connection with the ownership, lease, purchase, transfer, closure, use, and/or operation of any property owned, leased, or operated by Borrower and/or as may be required for the storage, treatment, generation, transportation, processing, handling, production, or Disposal of Hazardous Substances. "Environmental Report" means, collectively, the Coors Environmental Report, the Lomas Environmental Report and the Hickory Hill Environmental Report. "GAAP" means generally accepted accounting principles, consistently applied. "Governmental Authority" or "Governmental Authorities" means the government of the United States or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government. "Guarantors" means, collectively, Jarret Portz, Leslie LaMastus, and any other Person that executes and delivers to Bank a guaranty agreement to guarantee repayment of the Obligations or any portion thereof. The term "Guarantor" means any one of the Guarantors. "Guaranty" means the Guaranty Agreement dated of even date herewith executed by Guarantors and delivered to Bank, together with any other guaranty agreement provided from time to time to Bank to guaranty repayment of the Obligations. "Hazardous Substances" means, without limitation, any explosives, radon, radioactive materials, asbestos, urea formaldehyde foam insulation, polychlorinated biphenyls, petroleum and petroleum products, methane, hazardous materials, hazardous wastes, hazardous or toxic substances, and any other material defined as a hazardous substance in Section 101(14) of the Comprehensive Environmental Response, Compensation and Liability Act of 1980. 42 U.S.C. Section 9601(14). "Hickory Hill Environmental Report" means that certain Phase I Due Diligence Environmental Site Assessment, prepared by Moring Environmental Services, LLC, dated July 20, 2021. "Hickory Hill Mortgage" means the Deed of Trust, Security Agreement, Assignment of Leases and Rents, and Fixture Financing Statement dated of even date herewith, executed by Borrower in favor of Bank and encumbering the Hickory Hill Property. "Hickory Hill Property" means that certain real property located at 3581 Hickory Hill Road, Memphis, Tennessee. "Improvements" means any structures, buildings and other improvements now or which may hereafter be located, constructed or placed upon the Land, including all equipment and fixtures of every kind and nature, provided that Borrower may demolish any and all improvements existing on the Mortgaged Property as of the date hereof. "Land" means, collectively, the real property described in each of the Coors Mortgage, Lomas Mortgage and Hickory Hill Mortgage. "Leases" means all leases, license agreements and other occupancy or use agreements (whether oral or written), now or hereafter existing, which cover or relate to the Mortgaged Property or any part thereof, together with all options therefor, amendments thereto and renewals, modifications and guarantees thereof, including any cash or security deposited under the Leases to secure performance by the tenants of their obligations under the Leases, whether such cash or security is to be held until the expiration of the terms of the Leases or applied to one or more of the installments of rent coming due thereunder. The Leases in effect with respect to the Mortgaged Property on the Closing Date, if any, are identified on Exhibit B hereto. "Licenses" means any and all licenses, certificates or occupancy, operating permits, franchises, and other licenses, authorizations, certifications, permits, regulatory agreements or approvals, construction permits or accreditations necessary to conduct the current use of the Mortgaged Property. "Loan" has the meaning set forth in the Recitals to this Agreement. "Loan Documents" means this Agreement, the Note, the Mortgage, the Guaranty, the Beneficial Ownership Certification and all documents, including, without limitation, collateral documents, letter of credit agreements, reimbursement agreements, treasury management agreements, notes, security agreements, pledges, guaranties, mortgages, deeds of trust, title insurance, assignments, and subordination agreements now or hereafter required to be executed by Borrower or any Third Party pursuant hereto or in connection herewith. "Lomas Environmental Report" means that certain Phase 1 Environmental Site Assessment, Project No. 21-45, prepared by Sendero Environmental, LLC, dated August 21, 2021. "Lomas Mortgage" means the Deed of Trust, Security Agreement, Assignment of Leases and Rents, and Fixture Financing Statement dated of even date herewith, executed by Borrower in favor of Bank and encumbering the Lomas Property, as amended from time to time. "Lomas Property" means that certain real property located at 9935 Lomas Boulevard NE, Albuquerque, New Mexico. "Mortgage" means, collectively, the Coors Mortgage, the Lomas Mortgage and the Hickory Hill Mortgage. "Mortgaged Property" means, collectively, the Land, the Improvements, and all personal property described in each of the Coors Mortgage, Lomas Mortgage and Hickory Hill Mortgage. "Note" means the Promissory Note dated of even date herewith in the original principal amount of $7,860,000.00, executed by Borrower and payable to the order of Bank, together with all amendments, modifications thereto and substitutions, renewals, refinancings or replacements thereof. "Obligations" means any and all obligations of Borrower to Bank whether now owed or hereafter incurred or arising under this Loan Agreement, including, but not limited to, all obligations of Borrower under the Note, this Agreement, the Mortgage or any of the other Loan Documents, whether voluntary or otherwise, whether due or not due, direct or indirect, determined or undetermined, absolute or contingent, liquidated or unliquidated, whether Borrower may be liable individually or jointly with others, whether obligated as guarantor, surety, accommodation party or otherwise and whether recovery upon such amounts may be hereafter may become barred by any statute of limitations, and whether the obligation to repay such amounts may be or hereafter may become otherwise unenforceable. The term "Obligations" also includes amounts owing by Borrower to Bank in connection with treasury management agreements or arrangements and overdrafts of deposit accounts maintained by Bank. "OFAC" means the U.S. Department of Treasury's Office of Foreign Assets Control. "Other Indebtedness" means any obligation, whether present or future, as principal, surety or otherwise, including interest on any such obligation and including any duty to provide security for such obligation, whether or not such an obligation would be considered a liability under GAAP. "Patriot Act" as defined in Section 10.5. "Permits" means, collectively, all building permits, Environmental Permits, utility permits, land use and zoning permits, wetland permits and any other permits, approvals or licenses required by any Governmental Authority in connection with the ownership of the Mortgaged Property or the use, operation or occupancy of the Mortgaged Property, including any applicable tap-on permits and liquor licenses. "Permitted Encumbrances" means those matters reflected as special exceptions to title in the Title Insurance Policy, and such other exceptions and conditions to title as Bank has approved in writing in its sole and absolute discretion. "Permitted Transfer" as defined in Section 7.2. "Person" means and includes an individual, a partnership (general or limited), a joint venture, a corporation, a limited liability company, a limited liability partnership, a trust, an estate, an unincorporated organization and a government or any department or agency thereof. "Release" means "release," as defined in Section 101(22) of the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. Section 9601(22), and the regulations promulgated thereunder. "Rents" means all of the rents, royalties, issues, profits, revenues, earnings, income and other benefits of the Mortgaged Property or any part thereof, or arising from the use or enjoyment of the Mortgaged Property or any part thereof, including all such amounts paid under or arising from any of the Leases and all fees, charges, accounts or other payments for the use or occupancy of rooms or other public facilities within the Mortgaged Property or any part thereof. "Survey" as defined in Section 5.6. "Taxes" means all taxes and assessments whether general or special, ordinary or extraordinary, or foreseen or unforeseen, which at any time may be assessed, levied, confirmed or imposed by any Governmental Authority or any communities facilities or other private district on Borrower or on any of its properties or assets or any part thereof or in respect of any of its franchises, businesses, income or profits. "Third Party" means any Person who has executed and delivered, or who in the future may execute and deliver, to Bank any agreement, instrument, or document pursuant to which such Person has guaranteed to Bank the payment of the Obligations or has granted Bank a security interest in or lien on some or all of such Person's real or personal property to secure the payment of the Obligations. "Title Company" as defined in Section 5.4. "Title Insurance Policy" as defined in Section 5.4. "Transfer" means any voluntary or involuntary sale, conveyance, mortgage, grant, bargain, encumbrance, lease (other than any Lease entered into in the ordinary course of business), alienation, pledge, assignment, hypothecation, transfer or other disposition of: (a) all or any part of the Mortgaged Property or any estate or interest therein, or any portion of any other security for the Loan, including, but not be limited to, (i) an installment sales agreement wherein Borrower agrees to sell the Mortgaged Property or any part thereof, or any portion of any other security for the Loan, for a price to be paid in installments, or (ii) a sale, assignment or other transfer of, or the grant of a security interest in, Borrower's right, title and interest in and to any Leases or any Rents; or (b) any interest in Borrower or any other Person owning, directly or indirectly, any interest in, or that directly or indirectly controls, Borrower. SECTION 2 TERMS OF THE LOAN Subject to the terms of this Agreement, Bank agrees to lend to Borrower, and Borrower agrees to borrow from Bank, the Loan. The Loan will be evidenced by the Note. The unpaid principal balance of the Note, together with interest thereon, will be paid at the times and in the manner provided in the Note and this Agreement. Notwithstanding anything contained in this Agreement or the Note to the contrary, the unpaid principal balance of the Note, together with accrued but unpaid interest thereon, will be due and payable on the first to occur of: (i) the Maturity Date (as defined in the Note), or (ii) any earlier date on which the Note becomes due and payable in full as set forth in the Loan Documents, including, without limitation, upon the occurrence of an Event of Default. SECTION 3 COLLATERAL The payment and performance of the Obligations will be secured by the Collateral, including, without limitation, the Mortgaged Property. To further secure the Obligations, Borrower agrees to execute and deliver any and all additional security agreements, financing statements, notices of liens and other collateral documents which Bank may deem necessary or advisable for the purpose of obtaining, maintaining or perfecting the liens and encumbrances contemplated by the Mortgage and the other Loan Documents. Borrower hereby authorizes Bank to file such Uniform Commercial Code financing statements and continuation statements or amendments thereof which may be necessary from time to time for Bank to obtain and maintain a first-priority, perfected security interest in all Collateral that constitutes personal property. SECTION 4 REPRESENTATIONS AND WARRANTIES To induce Bank to enter into this Agreement and to extend the Loan, Borrower represents and warrants to Bank that: 4.1 Existence. Borrower is duly organized, validly existing and in good standing under the laws of the State in which it is organized and is duly licensed or qualified to do business and in good standing in every state in which the nature of its business or ownership of its property requires such licensing or qualification. Borrower's sole business purpose is to own and operate the Mortgaged Property. Neither Borrower nor any Guarantor has been convicted of a felony and there are no proceedings or investigations being conducted involving criminal activities of either Borrower or any Guarantor. The information contained in the Beneficial Ownership Certification is true and correct in all respects. 4.2 Authority. The execution, delivery, and performance of the Loan Documents to which Borrower is a party are within Borrower's limited liability company powers, have been duly authorized by all necessary and appropriate member and manager action, and are not in contravention of any law or the terms of Borrower's Articles of Organization or any amendment thereto, or of any indenture, agreement, undertaking, or other document to which Borrower is a party or by which Borrower or any of Borrower's property is bound or affected. 4.3 Financial Condition. Borrower has furnished to Bank, Borrower's and Guarantor's most current financial statements. Since the date of such financial statements, to Borrower's knowledge, there have not been any material adverse changes in the financial condition of Borrower or Guarantor reflected in such financial statements. 4.4 Taxes. (a) All federal and other tax returns required to be filed by Borrower and each Guarantor have been filed, and all Taxes required to be paid by such returns have been paid, or if not yet due, adequately reserved on the financial statements of Borrower or Guarantor, as applicable; and (b) neither Borrower nor any Guarantor has received any notice from the Internal Revenue Service or any other taxing authority proposing additional Taxes. 4.5 Litigation. There are no actions, suits, proceedings, or investigations pending or, to the knowledge of Borrower, threatened against Borrower, any Guarantor or the Collateral or any basis therefor which, if adversely determined, would, in any case or in the aggregate, materially adversely affect the property, assets, financial condition, or business of Borrower, any Guarantor or the Mortgaged Property. 4.6 Environmental Matters. Except as disclosed in the Environmental Report and to Borrower's actual knowledge: (a) No above ground or underground storage tanks containing Hazardous Substances are, or have been, located on the Mortgaged Property. (b) The Mortgaged Property is not now, nor has the Mortgaged Property previously been, used for the Disposal of any Hazardous Substance or for the treatment, storage, or Disposal of Hazardous Substances, except storage of Hazardous Substances that is in compliance with all applicable Environmental Laws. (c) No Release of a Hazardous Substance has occurred, or is threatened, on, at, from, or, near the Mortgaged Property. (d) Borrower is not subject to any existing, pending, or threatened suit, claim, notice of violation, or request for information under any Environmental Law nor has Borrower provided any notice or information under any Environmental Law. (e) Borrower is in compliance with, and has obtained all Environmental Permits required by, all Environmental Laws, except where the failure to be in compliance would not have a material adverse effect on the business, operations or financial condition of Borrower or the Mortgaged Property. 4.7 Validity of Loan Documents. The Loan Documents constitute the legal, valid, and binding obligations of Borrower and any Third Parties thereto, enforceable in accordance with their respective terms, except as enforceability may be limited by applicable bankruptcy and insolvency laws and laws affecting creditors' rights generally. 4.8 No Consent or Filing. No consent, license, approval, or authorization of, or registration, declaration, or filing with, any court, governmental body or authority, or other Person is required: (a) in connection with the valid execution, delivery, or performance of the Loan Documents by Borrower (other than filings and recordings to perfect security interests in or liens on the Collateral in connection with the Loan Documents), or (b) for the conduct of Borrower's business as now conducted, except ordinary business licenses or permits which Borrower has obtained. 4.9 No Violations. Borrower is not in violation of any term of its organizational documents or of any mortgage, borrowing agreement, or other instrument or agreement pertaining to indebtedness for borrowed money. Borrower is not in violation of any term of any other indenture, instrument, or agreement to which it is a party or by which it or its property may be bound, resulting, or which might reasonably be expected to result, in a material and adverse effect upon its business or assets. Borrower is not in violation of any order, writ, judgment, injunction, or decree of any court of competent jurisdiction or of any statute, rule, or regulation of any Governmental Authority. The execution and delivery of the Loan Documents and the performance of all of the same is, and will be, in compliance with the foregoing and will not result in any violation thereof, or result in the creation of any mortgage, lien, security interest, charge, or encumbrance upon, any properties or assets of Borrower except in favor of Bank. There exists no fact or circumstance (whether or not disclosed in the Loan Documents) which materially adversely affects, or in the future (so far as Borrower can now reasonably foresee) may materially adversely affect, the financial condition, business or operations of Borrower or the Collateral. 4.10 Other Claims. There are no outstanding claims or rights that would conflict with the execution, delivery or performance by Borrower or any Third Party of the terms and conditions of this Agreement or any of the other Loan Documents. No outstanding claims or rights exist that may result in a lien on any of the Collateral (other than any lien in favor of Bank and any lien to be released upon Closing of the Loan), any of the proceeds of the Collateral or any of the proceeds of proceeds. 4.11 Compliance With Laws. Borrower is in compliance with all applicable laws, rules, regulations, and other legal requirements with respect to its business and the use, maintenance, and operation of the real and personal property owned or leased by Borrower in the conduct of its business, except to the extent the failure to so comply would not have a material adverse effect on the business, operations or financial condition of Borrower or the Mortgaged Property. Neither Borrower, nor any person or entity which owns a controlling interest in or otherwise controls Borrower is listed on the Specially Designated Nationals and Blocked Persons List or other similar lists maintained by OFAC. 4.12 Licenses and Permits. Borrower has, and at all times will have, all Permits, Licenses, exemptions, and approvals necessary to occupy and operate the Mortgaged Property and will maintain compliance with all governmental requirements applicable to the Mortgaged Property and all other applicable statutes, laws, regulations and ordinances necessary for the transaction of its business, and will require its lessees or licensees to do the same. 4.13 Subdivision and Encroachments. The Mortgaged Property is a legal parcel (or parcels) lawfully created in full compliance with all subdivision laws and ordinances, and is or can be properly zoned for the stated use of the Mortgaged Property as disclosed to Bank at the time of execution hereof. 4.14 Purpose Statement. No part of the proceeds of the Loan will be used for the purpose (whether immediate, incidental or ultimate) of "purchasing" or "carrying" any "margin stock", as such terms are used in Regulation G (12 C.F.R., Chapter II, Part 207) of the Board of Governors of the Federal Reserve System or for the purpose of reducing or retiring any indebtedness which was originally incurred for any such purpose. 4.15 Business Loan. The Loan is a business loan transaction in the stated amount solely for the purpose of carrying on the business of Borrower and none of the proceeds of the Loan will be used for the personal, family or agricultural purposes of Borrower. No portion of the Mortgaged Property is used or will be used as a dwelling. 4.16 Leases. There are no Leases in effect as of the Closing Date other than the Leases delivered to Bank prior to the Closing Date and listed on Exhibit B attached hereto. The Leases delivered to Bank prior to the Closing Date are in full force and effect and, to Borrower's knowledge, no default has occurred thereunder; no tenant under any Lease has any right of set-off against payment of any amount due thereunder or for the abatement of rent; no tenant has delivered a notice of its intent to terminate the Lease or to vacate the leased premises; and no event or circumstance exists which, with the passage of time or the giving of notice, or both, would constitute a default under any Lease. SECTION 5 CONDITIONS PRECEDENT Bank's obligation to extend the Loan to Borrower is subject to Bank's receipt of the following, each in form and content acceptable to Bank: 5.1 Loan Documents. This Agreement and the other Loan Documents executed by Borrower and/or the Third Parties, as applicable. 5.2 Company General Certificates. A company general certificate shall be executed and delivered by the member(s) or manager(s) of Borrower which shall certify and attach true, accurate and complete copies of the organizational documents of Borrower together with all amendments or modifications thereto, a resolution of the member(s) of Borrower and a good standing certificate from the state in which Borrower is organized and, if different, the state in which the Mortgaged Property is located. 5.3 Insurance. Certificates or other proofs of insurance, together with evidence of the payment of premiums thereon, evidencing all coverage required by Exhibit A of this Agreement, the Mortgage or the Loan Documents and that Bank has been named loss payee or mortgagee on such policies, as applicable. 5.4 Title Insurance. An extended-coverage ALTA Loan Policy (2006 Form) issued by Old Republic-National Title Insurance Company, Fidelity National Title Insurance Company, or Stewart Title Guaranty Company (each, a "Title Company") in the aggregate face amount of the Loan (the "Title Insurance Policy"), insuring that as of the date of recording, the Mortgage creates in favor of Bank a valid and prior lien on the portion of the Mortgaged Property which constitutes an interest in real property, subject only to the Permitted Encumbrances, without any exception for mechanic's liens, and containing such endorsements as Bank may require. 5.5 Appraisal. A current appraisal of the Mortgaged Property, in form and content satisfactory to Bank and prepared by a licensed and independent third-party appraiser acceptable to Bank. The appraisal shall comply with the applicable regulations adopted by the Board of Governors of the Federal Reserve System, the Federal Deposit Insurance Corporation and the Office of the Comptroller of the Currency, and shall otherwise be in form and content reasonably satisfactory to Bank. The appraisal shall evidence a Bank approved "as-is" appraised value (subject to adjustment by Bank consistent with its standard practices) which will result in a loan-to-value ratio of not less than eighty percent (80%). 5.6 Survey. A survey of the Mortgaged Property (the "Survey") which shall show such Mortgaged Property and the easements thereon, and shall be certified to Bank and each respective Title Company by a surveyor registered in the state of the Mortgaged Property and shall contain the minimum standard detail for land surveys adopted by the American Land Title Association and the National Society of Professional Surveyors. Such Survey must show no state of facts or conditions objectionable to Bank, and must certify that none of the Improvements located on the Mortgaged Property is in a flood plain or flood hazard area designated by the Secretary of Housing and Urban Development or any other applicable governmental or quasi-governmental authority having jurisdiction over the Mortgaged Property or in any area classified as "wetlands" by any governmental, quasi-governmental or regulatory body. The Survey certification shall be in form reasonably acceptable to Bank. 5.7 Escrow Instructions. Bank's escrow instructions to each respective Title Company issuing the Title Insurance Policy must have been acknowledged in writing by each respective Title Company and fully complied satisfied. 5.8 Other Information. Such other documents, instruments, agreements, certificates, information and other assurance as the Bank may reasonably require. 5.9 Fees and Expenses. Payment in full of all title insurance premiums and other related fees; all closing or escrow fees; all appraisal fees; all due diligence fees; all reasonable legal fees and expenses of Bank; including the expense of filing the Uniform Commercial Code financing statements and any other closing documents which are to be recorded; any mortgage registration taxes, and all reasonable fees and expenses of any kind or nature whatsoever incurred by Bank in preparing or recording any of the Loan Documents, or incurred by Bank in procuring or making this Loan, or incurred by Bank in any other way connected with this Loan, this Agreement or the Loan Documents. 5.10 Flood Zone. Evidence satisfactory to Bank that no portion of the Mortgaged Property is located within an area designated by the Secretary of Housing and Urban Development as a special flood hazard area and, if any portion of the Mortgaged Property is located in such an area, Borrower shall have obtained (and provided satisfactory evidence to Bank of) flood insurance in accordance with the requirements set forth on Exhibit A attached hereto and acceptable to Bank in its sole discretion. SECTION 6 AFFIRMATIVE COVENANTS Borrower agrees that so long as this Agreement remains in effect and until the Obligations are indefeasibly paid or performed in full, Borrower shall take the following actions: 6.1 Payment of Taxes. Promptly pay and discharge all of its Taxes, assessments, and other governmental charges prior to the date on which penalties are attached thereto, establish adequate reserves for the payment of such Taxes, assessments, and other governmental charges, make all required withholding and other tax deposits, and, upon request, provide Bank with receipts or other proof that such Taxes, assessments, and other governmental charges have been paid in a timely fashion; provided, however, that nothing contained herein shall require the payment of any tax, assessment, or other governmental charge so long as its validity is being contested in good faith, and by appropriate proceedings diligently conducted, and adequate reserves for the payment thereof have been established. 6.2 Litigation or Contingent Liabilities. Immediately advise Bank of any litigation, pending or threatened, or any contingent liability which if adversely determined, could have a material adverse impact on the business, operations, property or financial condition of Borrower or any Guarantor. Borrower shall furnish to Bank such information regarding any such litigation, proceeding, counterclaim, or investigation as Bank shall reasonably request. 6.3 Compliance With Laws. Conduct Borrower's operations so as to be in compliance with all laws to which it is subject, governmental rules and regulations, provided it shall not be in default hereunder for minor violations which do not have a material adverse effect upon its property, operations or financial condition. Borrower shall further take all actions necessary to maintain all necessary permits, certificates and consents required to operate Borrower's business as now being conducted. Borrower will not initiate or acquiesce to a zoning change of the Mortgaged Property without prior notice to, and prior written consent from, Bank. Borrower will not allow changes in the stated use of the Mortgaged Property from that disclosed to Bank at the time of execution hereof without prior notice to, and prior written consent from, Bank; provided, that Bank will not unreasonably withhold, condition or delay any such requested consent. Borrower shall comply with all recorded or other covenants affecting the Mortgaged Property. 6.4 Compliance With Environmental Laws. (a) Borrower shall comply with all Environmental Laws. (b) Borrower shall not suffer, cause, or permit the Disposal of Hazardous Substances at any property owned, leased, or operated by it, except in strict compliance with the Environmental Laws. (c) Borrower shall promptly notify Bank in the event of the Disposal, Release or threatened Release of any Hazardous Substance at or from any property owned, leased, or operated by Borrower, which is not in accordance with the Environmental Laws. (d) Borrower shall deliver promptly to Bank: (i) copies of any documents received from the United States Environmental Protection Agency or any state, county, or municipal environmental or health agency concerning Borrower's operations; and (ii) copies of any documents submitted by Borrower to the United States Environmental Protection Agency or any state, county, or municipal environmental or health agency concerning its operations. 6.5 Insurance. (a) Borrower shall, during the term of this Agreement, procure at its expense and keep in force the insurance set forth in Exhibit A attached hereto, in form, coverage and amounts described therein, or as may otherwise be required by Bank from time to time. In addition, all insurance shall be written by an insurance company or companies licensed to do business in the State having (a) an A.M. Best Company financial and performance rating of A:X or better and (b) a rating of "A" or better by Standard & Poor's. All policies or certificates of insurance shall be delivered to and held by Bank as further security for the payment and performance of the Obligations, with evidence of renewal coverage delivered to Bank at least thirty (30) days before the expiration date of any policy. (b) Unless Borrower provides Bank with evidence of the insurance coverages required by this Agreement, Bank may purchase insurance at Borrower's expense to protect Bank's interest in the Mortgaged Property. This insurance may, but need not, protect Borrower's interests. The coverage that Bank purchases may not pay any claim that is made against Borrower in connection with the Mortgaged Property. Borrower may later cancel any insurance purchased by Bank, but only after providing Bank with evidence that Borrower has obtained insurance as required by this Agreement. If Bank purchases insurance for the Mortgaged Property, Borrower will be responsible for the cost of that insurance, including interest and other charges that may be imposed with the placement of the insurance, until the effective date of the cancellation or expiration of the insurance. The cost of the insurance may be added to the principal amount of the Obligations owing hereunder. The costs of the insurance may be more than the cost of the insurance that Borrower may be able to obtain on its own. 6.6 Inspection. Borrower will permit representatives of Bank to enter upon the Mortgaged Property or upon the executive offices of Borrower, to inspect the Mortgaged Property and any Improvements thereon and all records and books of account maintained by or on behalf of Borrower relating thereto and to discuss the affairs, finances and accounts pertaining to the Loan and the Collateral with representatives of Borrower. Borrower shall at all times cooperate and cause each and every one of its contractors, subcontractors and material suppliers to cooperate with the representatives of Bank in connection with or in aid of the performance of Bank's functions under this Agreement. Except in the event of an emergency, Bank will give Borrower at least forty-eight hours' notice by telephone in each instance before entering upon the Mortgaged Property or upon the executive offices of Borrower and/or exercising any other rights granted in this Section. 6.7 Business Requirements; Licenses. Borrower will preserve and maintain its present existence and good standing in the State of its organization and all of Borrower's rights, privileges and franchises. Borrower will (a) maintain in full force and effect all Licenses necessary to the ownership and/or operation of the Mortgaged Property, and (b) obtain, maintain and comply with all conditions for the continuance of, all Licenses necessary for the operation of the Mortgaged Property. SECTION 7 NEGATIVE COVENANTS Borrower agrees that, so long as this Agreement is in effect, Borrower shall not without the prior written consent of Bank: 7.1 Liens. Create, incur, assume, or suffer to exist any Lien with respect to or upon the Collateral, except (a) mortgages, security interests, liens, and encumbrances in favor of Bank, (b) liens for current Taxes, assessments or other governmental charges which are not delinquent or remain payable without any penalty and (c) other Permitted Encumbrances. 7.2 Change of Ownership or Management. Permit or allow a Transfer, other than a Permitted Transfer, or a change in Borrower's name or identity. As used herein, the term "Permitted Transfer" shall mean transfers of direct or indirect ownership interests in Borrower so long as with respect to Borrower, Jarrett Portz shall remain in day to day management control as the Manager of Borrower and shall retain, directly or indirectly, the majority of the ownership interests of Borrower. 7.3 Use of Loan Proceeds. Borrower will not permit the Loan proceeds to be used to purchase, carry, reduce, or retire any loan originally incurred to purchase or carry any margin stock or otherwise cause the Loan to violate Federal Reserve Board Regulations U or X, or Section 8 of the Securities and Exchange Act of 1934 and its regulations, as amended. SECTION 8 EVENTS OF DEFAULT Each of the following shall be considered an "Event of Default" for the purposes of this Agreement: 8.1 Payment Defaults. Failure to pay any installment of principal or interest of the Note within thirty (30) days of when due or failure to pay any other amount within thirty (30) days of when due and owing under the Note, this Agreement or the other Loan Documents. 8.2 Representation and Warranties. Any certificate, statement, representation, warranty, or financial statement furnished by, or on behalf of, Borrower or any Third Party, pursuant to, or in connection with, this Agreement (including, without limitation, representations and warranties contained herein) or as an inducement to Bank to enter into this Agreement or any other lending agreement with Borrower shall prove to have been false in any material respect at the time as of which the facts therein set forth were certified or at such time to have omitted any substantial contingent or unliquidated liability or claim against Borrower or any such Third Party, or if on the date of the execution of this Agreement there shall have been any materially adverse change in any of the facts disclosed by any such statement or certificate which shall not have been disclosed in writing to Bank at, or prior to, the time of such execution. 8.3 Negative Covenant Defaults. Borrower fails to maintain a covenant contained in Section 7 hereof. 8.4 Other Covenants and Defaults. Borrower fails to promptly perform or comply with any of the Obligations set forth in this Agreement (other than those expressly described in other Sections of this Article 8), and such failure continues uncured for a period of thirty (30) days after written notice from Bank to Borrower, unless (a) such failure, by its nature, is not capable of being cured within such period, and (b) within such period, Borrower commences to cure such failure and thereafter diligently prosecutes the cure thereof, and (c) Borrower causes such failure to be cured no later than sixty (60) days after the date of such written notice from Bank. 8.5 Default Under Other Loan Documents. An Event of Default (as defined therein) occurs under the Note, the Mortgage or any other Loan Document, or Borrower or Guarantor fails to promptly pay, perform, observe or comply with any term, obligation or agreement contained in any of the Loan Documents (within any applicable grace or notice and cure period). 8.6 Other Indebtedness. Occurrence of any event or condition which constitutes, or upon a lapse of time or the giving of notice, or both, would constitute, a default under any Other Indebtedness of Borrower to Bank or to any other Person. 8.7 Events Indicating Bankruptcy or Insolvency. (a) Cessation of Business or Voluntary Insolvency Proceedings. The (i) cessation of operations of Borrower's business as conducted on the date of this Agreement; (ii) filing by Borrower of a petition or request for liquidation, reorganization, arrangement, adjudication as a bankrupt, relief as a debtor, or other relief under the bankruptcy, insolvency, or similar laws of the United States of America or any state or territory thereof or any foreign jurisdiction now or hereafter in effect; (iii) making by Borrower of a general assignment for the benefit of creditors; (iv) consent by Borrower to the appointment of a receiver or trustee, including, without limitation, a "custodian," as defined in the Federal Bankruptcy Code, for Borrower or any of such Borrower's assets; (v) making of any, or sending of any, notice of any intended bulk sale by Borrower; or (vi) execution by Borrower of a consent to any other type of insolvency proceeding (under the Federal Bankruptcy Code or otherwise) or any formal or informal proceeding for the dissolution or liquidation of, or settlement of claims against, or winding up of affairs of, Borrower. (b) Involuntary Insolvency Proceedings. (i) The appointment of a receiver, trustee, custodian, or officer performing similar functions, including, without limitation, a "custodian," as defined in the Federal Bankruptcy Code, for Borrower or any of such Borrower's assets; or the filing against Borrower of a request or petition for liquidation, reorganization, arrangement, adjudication as a bankrupt, or other relief under the bankruptcy, insolvency, or similar laws of the United States of America, any state or territory thereof, or any foreign jurisdiction now or hereafter in effect; or of any other type of insolvency proceeding (under the Federal Bankruptcy Code or otherwise) or any formal or informal proceeding for the dissolution or liquidation of, settlement of claims against, or winding up of affairs of Borrower shall be instituted against Borrower; and (ii) such appointment shall not be vacated, or such petition or proceeding shall not be dismissed, within sixty (60) days after such appointment, filing, or institution. 8.8 Mechanic's Liens: Judgments and Levies. A lien for the performance of work or the supply of materials filed against the Mortgaged Property remains unsatisfied or unbonded for a period of forty-five (45) days after the date of filing or service or if any judgment against Borrower or any attachment or other levy against the Mortgaged Property remains unpaid, unstayed on appeal, undischarged, unbonded, or undismissed for a period of forty-five (45) days. 8.9 Guarantor Default. There shall occur with respect to any Guarantor: (i) any event described in Sections 8.4, 8.5 or 8.7; or (ii) any failure by Guarantor to perform in accordance with the terms of any Loan Document between such Guarantor and Bank, subject to any right to cure contained in the applicable Loan Document. 8.10 Collateral Impairment. There shall occur with respect to the Collateral any (a) misappropriation, conversion, diversion, or fraud, (b) material levy, seizure, or attachment, or (c) material loss or damage that is not covered by insurance. 8.11 Termination or Death of Guarantor. The death or incapacitation of a Guarantor unless, within ninety (90) days after Guarantor's death or incapacity, an additional or substitute guarantor approved by Bank shall have executed and delivered to Bank a new guaranty or a written agreement assuming all of Guarantor's obligations under the Guaranty, in each case in form and content acceptable to Bank. 8.12 Transfer. There shall occur a Transfer which is not a Permitted Transfer. SECTION 9 RIGHTS AND REMEDIES IN THE EVENT OF DEFAULT 9.1 Exercise of Rights and Remedies. Upon the occurrence of an Event of Default and at any time thereafter, Bank may declare all of the Obligations immediately due and payable without demand or notice of any kind, the same being hereby expressly waived and such Obligations shall thereupon be and become due and payable. No failure on the part of Bank to exercise, and no delay in exercising, any right hereunder shall operate as waiver thereof, nor shall any single or partial exercise by Bank of any right hereunder or any Third Party of any other right. SECTION 10 MISCELLANEOUS 10.1 Waivers and Consents. No modification or waiver of any provision of this Agreement, nor consent to any departure by Borrower from the terms hereof, shall be effective unless the same shall be in writing signed by an authorized officer of Bank, and then only in the specific incidents and for the purpose for which given. 10.2 Expenses. Borrower will immediately pay to Bank upon demand (a) all reasonable costs and expenses incurred by Bank in connection with the administration of this Agreement, the other Loan Documents and any other documents required by Bank during the term of the Loan and (b) all costs and expenses incurred by Bank in connection with the enforcement or satisfaction by Bank of any of Borrower's or any Guarantor's obligations under this Agreement, the Guaranty and the other Loan Documents. For all purposes of this Agreement, Bank's costs and expenses shall include, without limitation, all appraisal and appraisal review fees, cost engineering and inspection fees, reasonable legal fees and expenses, accounting fees, environmental consultant fees, auditor fees, recording and filing fees, title examination and lien search fees, escrow fees, and the cost to Bank of any title insurance premiums, title surveys, tax service contracts, reconveyance and notary fees. Borrower will pay any and all reasonable costs of collection, including fees and expenses of counsel to Bank, in the Event of Default in the payment of the Loan whether or not litigation is commenced. 10.3 Severability. In case any one or more of the provisions contained in this Agreement or the Loan Documents shall be invalid, illegal, or enforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein and therein shall not in any way be affected or impaired thereby. In the event any provision of this Agreement conflicts with any provision contained in another Loan Document, the provisions contained in this Agreement shall control. 10.4 Applicable Law. This Agreement and the Loan Documents, except if otherwise specifically provided, shall be deemed contracts under and shall be construed in accordance with the laws of the State of Oklahoma. 10.5 U.S.A. Patriot Act Notice. Bank hereby notifies Borrower that pursuant to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the "Patriot Act"), it is required to obtain, verify and record information that identifies Borrower, which information includes the name and address of Borrower and other information that will allow Bank to identify Borrower in accordance with the Patriot Act. Borrower shall, promptly following a request by Bank, provide all documentation and other information that Bank requests in order to comply with its ongoing obligation under "know your customer" and anti-money laundering rules and regulations, including the Act. 10.6 Further Assurances. From time to time, Borrower shall take such action and execute and deliver to Bank such additional documents, instruments, certificates, and agreements as Bank may reasonably request to effectuate the purposes of the Loan Documents. 10.7 Termination. This Agreement is, and is intended to be, a continuing agreement and shall remain in full force and effect until the Obligations have been finally and irrevocably paid in full and Bank has no further commitment to extend credit to or for the benefit of Borrower. On the Maturity Date (as defined in the Note), the Obligations shall become immediately due and payable. Notwithstanding the foregoing or anything in this Agreement or elsewhere to the contrary, Bank's rights and remedies under the Loan Documents and Borrower's obligations and liabilities under the Loan Documents, will remain in full force and effect until all of the Obligations outstanding, or contracted or committed for (whether or not outstanding), and any extensions or renewals thereof, together with interest accruing thereon after such notice, shall be finally and indefeasibly paid in full. 10.8 Time. Time is of the essence with respect to the dates, terms and conditions of this Agreement, and, in the event that any respective term or condition is not fully complied with by the designated date, this Agreement shall be null and void, at Bank's option, and Bank shall retain all fees paid hereunder. 10.9 Successors. The rights, options, powers and remedies granted in this Agreement and the other Loan Documents shall be binding upon Borrower and Bank and their respective successors and assigns, and shall inure to the benefit of Borrower and Bank and the successors and assigns of Bank, including, without limitation, any purchase of any or all of the rights and obligations of Bank under this Loan Agreement and the other Loan Documents. Borrower may not assign its rights or obligations under this Agreement or other Loan Documents without the prior written consent of Bank. 10.10 Transfers and Participations by Bank; Disclosure. Bank may sell or offer to sell the Loan or interests therein to one or more assignees or participants. Borrower shall execute, acknowledge and deliver any and all instruments reasonably requested by Bank in connection therewith, and to the extent, if any, specified in any such assignment or participation, such assignee(s) or participant(s) shall have the same rights and benefits with respect to the Loan Documents as such Person(s) would have if such Person(s) were Bank hereunder. Bank may, in connection with any sale or potential sale of all or any interest in the Note and the other Loan Documents, disclose any financial information Bank may have concerning Borrower to any purchaser or potential purchaser. From time to time, Bank may, in its discretion and without obligation to Borrower or any Third Party, disclose information about Borrower and the Loan to any Guarantor(s), surety or other accommodation party. This provision does not obligate Bank to supply any information or release Borrower from its obligation to provide such information, and Borrower agrees to keep all Guarantors, sureties, and other accommodation parties advised of its financial condition and other matters which may be relevant to their obligations to Bank. 10.11 Electronic Transmission of Data. Bank and Borrower agree that certain data related to the Loan (including confidential information, documents, applications and reports) may be transmitted electronically, including transmission over the Internet. This data may be transmitted to, received from or circulated among agents and representatives of Borrower and/or Bank and their respective Affiliates and other Persons involved with the subject matter of this Agreement. Borrower acknowledges and agrees that (a) there are risks associated with the use of electronic transmission and that Bank does not control the method of transmittal or service providers. (b) Bank has no obligation or responsibility whatsoever and assumes no duty or obligation for the security, receipt or third party interception of any such transmission, and (c) Borrower will release, hold harmless and indemnify Bank from any claim, damage or loss, including that arising in whole or part from Bank's strict liability or sole, comparative or contributory negligence, which is related to the electronic transmission of data. 10.12 Joint and Several Liability. In the event there are multiple Borrowers, each Borrower agrees that it is jointly and severally liable to Bank for the payment of all obligations arising under this Agreement, and that such liability is independent of the obligations of the other Borrower(s). Each obligation, promise, covenant, representation and warranty in this Agreement shall be deemed to have been made by, and be binding upon, each Borrower, unless this Agreement expressly provides otherwise. Bank may bring an action against any Borrower, whether an action is brought against the other Borrower(s). 10.13 Waiver of Defenses. The obligations of Borrower under this Agreement and the other Loan Documents shall be absolute and unconditional and shall remain in full force and effect until the entire Obligations have been paid in full and, until such time, the obligations of Borrower to pay the Obligations shall not be discharged, affected, modified or impaired on the happening from time to time of any event, including, without limitation, any of the following, whether or not with notice to or the consent of Borrower: (a) the waiver, compromise, settlement, release, termination or amendment (including, without limitation, any extension or postponement of the time for payment or performance or renewal or refinancing) of any or all of the obligations or agreements of any Borrower under this Agreement or the other Loan Documents; (b) the failure to give notice to Borrower (or any one of them) of the occurrence of a default or an Event of Default under the terms and provisions of this Agreement or the other Loan Documents (except as expressly required hereunder or under any other Loan Document); (c) the release, substitution or exchange by Bank of any of the Obligations or any collateral now or hereafter securing payment of the Obligations (whether with or without consideration) or the acceptance by Bank of any additional Collateral or the availability or claimed availability of any other Collateral or source of repayment or any non-perfection or other impairment of any Collateral; (d) the release of any Person primarily or secondarily liable for payment of all or any part of the Obligations, whether by Bank or any other holder of the Obligations or in connection with any voluntary or involuntarily liquidation, dissolution, receivership, insolvency, bankruptcy, assignments for the benefit of creditors or similar event or proceeding affecting Borrower (or any one of them) or any other Person who, or any of whose property, shall at the time in question be obligated in respect of the Obligations or any part thereof; or (e) to the extent permitted by law, any other event, occurrence, action or circumstance that would, in the absence of this Section 10.13, result in the release or discharge of any Borrower from the performance or observance of any obligation, covenant or agreement contained in this Agreement or the other Loan Documents. (f) The joint and several obligations of the Borrower to Bank under this Agreement and the other Loan Documents shall remain in full force and effect (or be reinstated) until Bank has received payment in full of the Obligations and the expiration of any applicable preference or similar period pursuant to any bankruptcy, insolvency, reorganization, moratorium or similar law, or at law or equity, without any claim having been made before the expiration of such period asserting an interest in all or any part of any payments received by Bank. (g) Borrower expressly agrees that Bank shall not be required first to institute any suit or to exhaust any remedies against any other Borrower or any other Person that hereafter becomes liable on the Obligations or against any Collateral, or against any other Collateral that hereafter secures the Obligations, in order to enforce the Obligations against each Borrower; and expressly agrees that, notwithstanding the occurrence of any of the foregoing, such Borrower shall be and remain directly and primarily liable for the entire Obligations. On disposition by Bank of any Collateral now or hereafter securing payment of the Obligations, each Borrower shall be and remain jointly and severally liable for any deficiency. 10.14 Notice. Until written notice to the contrary is actually received by either party, any notice required to be sent hereunder shall be sent by certified mail, return receipt requested or hand delivery as follows: To Borrower: LBJ Enterprises LLC 513 N Lake Havasu Lake Havasu City, AZ 86403 with a copy to: Stinson L.L.P 7700 Forsyth Boulevard, Suite 1100 St. Louis, Missouri 63105 Attn: P. Michael Campbell To Bank: BancCentral, National Association 604 Flynn Street PO Box 667 Alva, Oklahoma 73717 10.15 WAIVER OF TRIAL BY JURY. THE PARTIES HEREBY WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER PARTY AGAINST THE OTHER PARTY ON ANY MATTER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE LOAN, THIS AGREEMENT OR ANY OF THE LOAN DOCUMENTS, THE RELATIONSHIPS BETWEEN BORROWER AND BANK, OR BORROWER'S USE AND OCCUPANCY OF THE MORTGAGED PROPERTY. THE FOREGOING WAIVER IS GIVEN IN CONJUNCTION WITH A JUDICIAL REFERENCE AGREEMENT BETWEEN BORROWER AND BANK. 10.16 CONSENT TO JURISDICTION. BORROWER AND BANK AGREE THAT ANY ACTION OR PROCEEDING TO ENFORCE, OR ARISING OUT OF, THE LOAN DOCUMENTS MAY BE COMMENCED IN LOCAL, STATE, OR FEDERAL COURTS HAVING JURISDICTION IN AL.VA., OKLAHOMA OR WHERE THE MORTGAGED PROPERTY IS LOCATED, AND BORROWER WAIVES PERSONAL SERVICE OF PROCESS AND AGREES THAT A SUMMONS AND COMPLAINT COMMENCING AN ACTION OR PROCEEDING IN ANY SUCH COURT SHALL BE PROPERLY SERVED AND SHALL CONFER PERSONAL JURISDICTION IF SERVED BY REGISTERED OR CERTIFIED MAIL TO BORROWER, OR AS OTHERWISE PROVIDED BY THE LAWS OF THE STATE OF OKLAHOMA OR THE UNITED STATES. [Signature Pages Follow] IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first referenced above. BORROWER: LBJ ENTERPRISES LLC, a Delaware limited liability company By: [signature] Name: [Signature Pertz] Its: Manager BANK: BANCCENTRAL, NATIONAL ASSOCIATION, a national banking association By: [signature] Name: Derek W. Harter Its: EVP EXHIBIT A Insurance Requirements (i) Property Insurance. Maintain property damage insurance covering loss or damage to the Mortgaged Property in an amount not less than 100% of the full replacement cost of the Mortgaged Property. Bank shall be named a loss payee or mortgagee on all such insurance policies. (ii) Liability Insurance. Maintain commercial general liability insurance covering bodily injury and death in an amount acceptable to Bank. Any such policies shall name Bank as an additional insured thereunder. (iii) Worker's Compensation Insurance. Maintain, to the extent required by applicable law, worker's compensation or employer's liability insurance in accordance with such laws. (iv) Flood Insurance. Maintain, to the extent required by applicable law, a policy of flood insurance, in an amount acceptable to Bank, but in no event less than the amount sufficient to meet the requirements of applicable law and governmental regulation. (v) General. All insurance policies required hereunder shall be issued by insurance companies acceptable to Bank and shall not be terminated without giving Bank 30 days' prior written notice. EXHIBIT B Leases 1. Lomas Property: a. Ground Lease dated September 15, 2002, by and between Lomas Jack, LLC, a New Mexico domestic limited liability company, as successor in interest to Helen Grevey, successor sole Trustee of the Joseph and Simone Grevey Trust, established under Restatement of Trust Agreement dated April 14, 1989; Eileen Grevey, as her sole and separate property and Estelle Rosenblum, a widow, Lessor, and T-Mobile Texas, L.P., as successor in interest to VoiceStream PCS, II Corporation, a Delaware corporation, Lessee, as disclosed by Notice and Memorandum of Lease recorded June 9, 2006 in Book A118, Page 4602 as Document No. 2006084845; The Lessor's interest under said lease has been assigned to Valentine Capital, LLC, a Delaware limited liability company pursuant to that certain Purchase and Sale of Lease and Successor Lease dated as of November 5, 2012, a memorandum of which was recorded on December 28, 2012 as Document No. 2012138166 and as amended pursuant to that certain Amendment to Ground Lease (with Option to Exercise Ground Lease) dated as of June 27, 2013, a memorandum of which was recorded on July 1, 2013 as Document No. 2013074398, Memorandum of Lease Amendment Agreement recorded March 27, 2019 as Document No. 2019023586, Assignment recorded December 2, 2019 as Document No. 2019102304, records of Bernalillo County, New Mexico. b. Site License dated June 23, 2006, by and between TMobile West Corporation, a Delaware corporation, f/k/a Pacific Bell Wireless, LLC, and New Cingular Wireless PCS, LLC, a memorandum of which was recorded on July 7, 2006 as Document No. 2006100921, records of Bernalillo County, New Mexico. c. Sub-Lease dated July 30, 2013, by and between TMobile West Tower LLC, a Delaware limited liability company and CCTMO LLC, a Delaware limited liability company, as disclosed by that certain Memorandum of Master Prepaid lease and Management Agreement, dated July 30, 2013, recorded August 8, 2013 as Document No. 2013088685, records of Bernalillo County, New Mexico. 2. Coors Property: None 3. Hickory Hill Property: None EXHIBIT "C" GUARANTY AGREEMENT This Guaranty Agreement (this “Guaranty”) is made as of October 27, 2021, by JARRET PORTZ, individually, and LESLIE LAMASTUS, individually (collectively and jointly and severally, the “Guarantor”), in favor of BANCCENTRAL, NATIONAL ASSOCIATION, a national banking association (the “Bank”), and its successors and assigns. RECITALS WHEREAS, the Bank has agreed to extend a loan in the amount of $7,860,000.00 (the “Loan”) to LBJ Enterprises LLC, a Delaware limited liability company (the “Borrower”) for the purpose of financing or refinancing the costs of acquisition and improvement of the real property that will serve as security for the Loan (collectively, the “Mortgaged Property”); WHEREAS, the Loan shall be evidenced by a Promissory Note dated of even date herewith in the principal amount of $7,860,000.00 in favor of the Bank, as the same may from time to time be amended, modified, replaced or supplemented (the “Note”); WHEREAS, the Note, the Loan Agreement (as defined below), the Mortgage (as defined in the Loan Agreement), and any and all other documents executed in connection with the Loan are collectively herein referred to as the “Loan Documents”; WHEREAS, as a condition precedent to certain agreements made by the Bank in a Loan Agreement of even date herewith (the “Loan Agreement”), the Bank has required, among other things, the execution and delivery of this Guaranty by Guarantor; WHEREAS, it is intended that this Guaranty extend to the Loan and all other amounts owing under the Loan Documents, without any need for any notice to the Guarantor of the making of any advances and without any need for any supplements or amendments to this Guaranty or any other documentation to be executed by the Guarantor; and WHEREAS, unless otherwise defined herein, all capitalized terms used herein shall have the meanings assigned to them in the Note and the Loan Agreement. WITNESSETH: For good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, and as a material inducement to the Bank to extend credit to the Borrower, the Guarantor hereby guarantees to the Bank the prompt and full payment and performance of the Indebtedness and the other obligations in connection with the Loan as defined and described below in this Guaranty (hereinafter sometimes collectively called the “Obligations”), upon the following terms and conditions: 1. Guaranty of Payment. The Guarantor hereby unconditionally and irrevocably guarantees to the Bank the punctual payment when due, whether by scheduled payment date, upon maturity, lapse of time, by acceleration of maturity, or otherwise, and at all times thereafter, of all principal, interest (including interest accruing after the commencement of any bankruptcy or insolvency proceeding by or against the Borrower, whether or not allowed in such proceeding), fees, late charges, costs, expenses, indemnification indebtedness (excluding environmental indebtedness pursuant to the Environmental Indemnity Agreement), and other sums of money now or hereafter due and owing pursuant to (a) the terms of the Note and any other Loan Document executed in connection with the Loan, now or hereafter existing, and specifically including any and all advances made by the Bank under the Loan Documents from sources other than the Loan, and interest on such advances, and (b) all renewals, extensions, increases, refinancings, modifications, supplements or amendments to such indebtedness, or any of the Loan Documents, or any part thereof (such indebtedness being hereinafter collectively called the "Indebtedness"). This Guaranty covers the Indebtedness, whether presently outstanding or arising subsequent to the date hereof. The guaranty of Guarantor as set forth in this Section is a continuing guaranty of payment and not a guaranty of collection. 2. Primary Liability of the Guarantor. This Guaranty is an absolute, irrevocable and unconditional guaranty of payment. The Guarantor shall be liable for the payment of the Obligations, as set forth in this Guaranty, as a primary obligor. This Guaranty shall be effective as a waiver of, and the Guarantor hereby expressly waives, any and all rights to which the Guarantor may otherwise have been entitled under any suretyship laws in effect from time to time, including any right or privilege, whether existing under statute, at law or in equity, to require the Bank to take prior recourse or proceedings against any collateral, security or Person (hereinafter defined) whatsoever. Upon the occurrence of any default under the Loan which is not cured within applicable notice and cure periods, if any, the Indebtedness shall be deemed immediately due and payable at the election of the Bank, and the Guarantor shall, on demand and without presentment, protest, any notice whatsoever, pay the amount due thereon to the Bank or perform or observe the agreement, covenant, term or condition, as the case may be, and it shall not be necessary for the Bank, in order to enforce such payment by any Guarantor, first to institute suit or pursue or exhaust any rights or remedies against the Borrower or others liable on the Obligations, or to institute suit or pursue or exhaust any rights or remedies against the Borrower or any other Guarantor or other sureties of the Obligations as contemplated by applicable law or to enforce any rights against any security that shall ever have been given to secure the Obligations, or to join the Borrower or any others liable for the payment of the Obligations or any part thereof in any action to enforce this Guaranty, or to resort to any other means of obtaining payment of the Obligations. 3. Representations, Warranties, and Covenants of the Guarantor. The Guarantor hereby represents, warrants, and covenants that (a) the Guarantor will derive substantial benefit, directly or indirectly, from the making of the Loan to the Borrower and from the making of this Guaranty by the Guarantor; (b) this Guaranty is duly authorized and valid, and is binding upon and enforceable against the Guarantor; (c) the Guarantor is not, and the execution, delivery and performance by the Guarantor of this Guaranty will not cause the Guarantor to be, in violation of or in default with respect to any law or in default (or at risk of acceleration of indebtedness) under any agreement or restriction by which the Guarantor is bound or affected; (d) except as may have been disclosed to the Bank in writing, there is no litigation pending or, to the knowledge of the Guarantor, threatened before or by any tribunal against or affecting the Guarantor which would materially and adversely affect the financial condition of Guarantor; (e) all financial statements and information heretofore furnished to the Bank by the Guarantor do, and all financial statements and information hereafter furnished to the Bank by the Guarantor will, fully and accurately present the condition (financial or otherwise) of the Guarantor as of their dates and the results of the Guarantor's operations for the periods therein specified, and, since the date of the most recent financial statements of the Guarantor heretofore furnished to the Bank, no material adverse change has occurred in the financial condition of the Guarantor; (f) after giving effect to this Guaranty, the Guarantor is solvent, is not engaged or about to engage in business or a transaction for which the property of the Guarantor is an unreasonably small capital contribution, and does not intend to incur or believe that it will incur debts that will be beyond its ability to pay as such debts mature; (g) the Bank has no duty at any time to investigate or inform the Guarantor of the financial or business condition or affairs of the Borrower or any change therein, and the Guarantor will keep fully appraised of the Borrower's financial and business condition; (h) the Guarantor acknowledges and agrees that the Guarantor may be required to pay the Obligations in full without assistance or support from the Borrower or any other Person (except to the extent the Guarantor's liability for the Obligations is limited in Section 1 hereof); and (i) the Guarantor has read and fully understands the provisions contained in the Note and the other Loan Documents, each of which may be modified, extended, supplemented or extended from time to time without notice to or consent from the Guarantor and without affecting the obligations of the Guarantor under this Guaranty. The Guarantor's representations, warranties and covenants are a material inducement to the Bank to enter into the other Loan Documents and shall survive the execution hereof and any bankruptcy, foreclosure, transfer of security or other event affecting the Borrower, the Guarantor, any other party, or any security for all or any part of the Obligations. 4. Certain Agreements and Waivers by the Guarantor. (a) The Guarantor hereby agrees that neither the Bank's rights or remedies nor the Obligations shall be released, diminished, impaired, reduced or affected by any one or more of the following events, actions, facts, or circumstances, and the liability of the Guarantor under this Guaranty shall be absolute and unconditional irrespective of: (i) any limitation of liability or recourse in any other Loan Document or arising under any law; (ii) any claim or defense that this Guaranty was made without consideration or is not supported by adequate consideration; (iii) the taking or accepting of any other security or guaranty for, or right of recourse with respect to, any or all of the Obligations; (iv) any homestead exemption or other exemption under applicable law; (v) any release, surrender, abandonment, exchange, alteration, sale or other disposition, subordination, deterioration, waste, failure to protect or preserve, impairment, or loss of, or any failure to create or perfect any lien or security interest with respect to, or any other dealings with, any collateral or security at any time existing or purported, believed or expected to exist in connection with any or all of the Obligations, including any impairment of the Guarantor's recourse against any Person or collateral; (vi) whether express or by any operation of law, any full or partial release of the liability of any Guarantor, the Borrower or any other party hereunder or under any of the other Loan Documents; (vii) the death, insolvency, bankruptcy, disability, dissolution, liquidation, termination, receivership, reorganization, merger, consolidation, change of form, structure or ownership, sale of all assets, or lack of corporate, partnership or other power of the Borrower or any other party at any time liable for the payment of any or all of the Obligations; (viii) either with or without notice to or consent of the Guarantor: any renewal, extension, modification or rearrangement of the terms of any or all of the Obligations and/or any of the Loan Documents, including, without limitation, material alterations of the terms of payment (including changes in maturity date(s), interest rate(s) and amortization) or performance or any other terms thereof, or any waiver, termination, or release of, or consent to departure from, any of the Loan Documents or any other guaranty of any or all of the Obligations, or any adjustment, indulgence, forbearance, or compromise that may be granted from time to time by the Bank to the Borrower, any Guarantor, and/or any other Person at any time liable for the payment of any or all of the Obligations; (ix) any neglect, lack of diligence, delay, omission, failure, or refusal of the Bank to take or prosecute (or in taking or prosecuting) any action for the collection or enforcement of any of the Obligations, or to foreclose or take or prosecute any action to foreclose (or in foreclosing or taking or prosecuting any action to foreclose) upon any security therefor, or to exercise (or in exercising) any other right or power with respect to any security therefor, or to take or prosecute (or in taking or prosecuting) any action in connection with any Loan Document, or any failure to sell or otherwise dispose of in a commercially reasonable manner any collateral securing any or all of the Obligations; (x) any failure of the Bank to notify the Guarantor of any creation, renewal, extension, rearrangement, modification, supplement, subordination, or assignment of the Obligations or any part thereof, or of any Loan Document, or of any release of or change in any security, or of any other action taken or refrained from being taken by the Bank against the Borrower or any security or other recourse, or of any new agreement between the Bank and the Borrower, it being understood that the Bank shall not be required to give the Guarantor any notice of any kind under any circumstances with respect to or in connection with the Obligations, any and all rights to notice that the Guarantor may have otherwise had being hereby waived by the Guarantor; (xi) any refund by the Bank of any payment made by the Borrower or any other party liable for the payment of any or all of the Obligations; (xii) the existence of any claim, set-off, or other right that the Guarantor may at any time have against the Borrower, the Bank, or any other Person, whether or not arising in connection with this Guaranty or any other Loan Document; (xiii) the unenforceability of all or any part of the Obligations against the Borrower, whether because the Obligations exceed the amount permitted by law or violate any usury law, or because the act of creating the Obligations, or any part thereof, is beyond the scope of powers granted (with respect to each corporate or partnership Guarantor), or because the officers or Persons creating same acted in excess of their authority, or because of a lack of validity or enforceability of or defect or deficiency in any of the Loan Documents, or because the Borrower has any valid defense, claim or offset with respect thereto, or because the Borrower's obligation ceases to exist by operation of law, or because of any other reason or circumstance, it being agreed that the Guarantor shall remain liable hereunder regardless of whether the Borrower or any other Person be found not liable on the Obligations, or any part thereof, for any reason (and regardless of any joinder of the Borrower or any other party in any action to obtain payment of any or all of the Obligations); (xiv) any order, ruling or plan of reorganization emanating from proceedings under Title 11 of the United States Code with respect to the Borrower or any other Person, including any extension, reduction, composition, or other alteration of the Obligations, whether or not consented to by the Bank; or (xv) any failure to notify the Guarantor of, or obtain the Guarantor's consent to, the making of the Loan or advances thereunder. (b) In the event that any payment by the Borrower or any other Person to the Bank is held to constitute a preference, fraudulent transfer or other voidable payment under any bankruptcy, insolvency or similar law, or if for any other reason the Bank is required to refund such payment or pay the amount thereof to any other party, such payment by the Borrower or any other party to the Bank shall not constitute a release of the Guarantor from any liability hereunder, and this Guaranty shall continue to be effective or shall be reinstated (notwithstanding any prior release, surrender or discharge by the Bank of this Guaranty or of the Guarantor), as the case may be, with respect to, and this Guaranty shall apply to, any and all amounts so refunded by the Bank or paid by the Bank to another Person (which amounts shall constitute part of the Obligations), and any interest paid by the Bank and any attorneys' fees, costs and expenses paid or incurred by the Bank in connection with any such event. It is the intent of the Guarantor and the Bank that the obligations and liabilities of the Guarantor hereunder are absolute and unconditional under any and all circumstances and that until the Obligations are fully and finally paid and performed, and not subject to refund or disgorgement, the obligations and liabilities of the Guarantor hereunder shall not be discharged or released, in whole or in part, by any act or occurrence that might, but for the provisions of this Guaranty, be deemed a legal or equitable discharge or release of a Guarantor. (c) If acceleration of the time for payment of any amount payable by the Borrower under the Note or any other Loan Document is stayed or delayed by any law or tribunal, all such amounts shall nonetheless be payable by the Guarantor on demand by the Bank. 5. WAIVER OF TRIAL BY JURY. THE GUARANTOR HEREBY WAIVES TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO WHICH THE GUARANTOR AND THE BANK MAY BE PARTIES ARISING OUT OF, IN CONNECTION WITH, OR IN ANY WAY PERTAINING TO, THIS GUARANTY AND/OR ANY OTHER LOAN DOCUMENTS. IT IS AGREED AND UNDERSTOOD THAT THIS WAIVER CONSTITUTES A WAIVER OF TRIAL BY JURY OF ALL CLAIMS AGAINST ALL PARTIES TO SUCH ACTIONS OR PROCEEDINGS, INCLUDING CLAIMS AGAINST PARTIES WHO ARE NOT PARTIES TO THIS GUARANTY. THIS WAIVER IS KNOWINGLY, WILLINGLY AND VOLUNTARILY MADE BY THE GUARANTOR, AND THE GUARANTOR HEREBY REPRESENTS THAT NO REPRESENTATIONS OF FACT OR OPINION HAVE BEEN MADE BY ANY INDIVIDUAL TO INDUCE THIS WAIVER OF TRIAL BY JURY OR TO IN ANY WAY MODIFY OR NULLIFY ITS EFFECT. THE GUARANTOR FURTHER REPRESENTS AND WARRANTS THAT IT HAS BEEN REPRESENTED IN THE SIGNING OF THIS GUARANTY AND IN THE MAKING OF THIS WAIVER BY INDEPENDENT LEGAL COUNSEL, OR HAS HAD THE OPPORTUNITY TO BE REPRESENTED BY INDEPENDENT LEGAL COUNSEL SELECTED OF ITS OWN FREE WILL, AND THAT IT HAS HAD THE OPPORTUNITY TO DISCUSS THIS WAIVER WITH COUNSEL. THE FOREGOING WAIVER IS GIVEN IN CONJUNCTION WITH A JUDICIAL REFERENCE AGREEMENT BETWEEN GUARANTOR AND BANK. 6. Attorneys’ Fees and Costs of Collection. The Guarantor shall pay on demand all reasonable attorneys’ fees and all other costs and expenses incurred by the Bank in the enforcement of or preservation of the Bank’s rights under this Guaranty. 7. Term of Guaranty. This Guaranty shall continue in effect until such time as the Obligations have been fully and finally paid and performed, except that, and notwithstanding any return of this Guaranty to the Guarantor, this Guaranty shall continue in effect with respect to preferential, fraudulent or other voidable payments or other transfers. 8. Notices. Unless specifically provided otherwise, any notice for purposes of this Guaranty shall be given in writing or by electronic transmission and shall be addressed or delivered to the respective addresses set forth at the end of this Guaranty, or to such other address as may have been previously designated by the intended recipient by notice given in accordance with this Section. If sent by prepaid, registered or certified mail (return receipt requested), the notice shall be deemed effective when the receipt is signed or when the attempted initial delivery is refused or cannot be made because of a change in address of which the sending party has not been notified; and if transmitted by electronic or personal delivery, the notice shall be effective when received. No notice of change of address shall be effective except upon actual receipt. 9. Cumulative Rights. The exercise by the Bank of any right or remedy hereunder or under any other Loan Document, or at law or in equity, shall not preclude the concurrent or subsequent exercise of any other right or remedy. The Bank shall have all rights, remedies and recourses afforded to the Bank by reason of this Guaranty or any other Loan Document or by law or equity or otherwise, and the same shall be cumulative and concurrent and are intended to be, and shall be, nonexclusive. No waiver of any default on the part of the Guarantor or of any breach of any of the provisions of this Guaranty or of any other document shall be considered a waiver of any other or subsequent default or breach, and no delay or omission in exercising or enforcing the rights and powers granted herein or in any other document shall be construed as a waiver of such rights and powers, and no exercise or enforcement of any rights or powers hereunder or under any other document shall be held to exhaust such rights and powers, and every such right and power may be exercised from time to time. No provision of this Guaranty or any right, remedy or recourse of the Bank with respect hereto, or any default or breach, can be waived, nor can this Guaranty or the Guarantor be released or discharged in any way or to any extent, except specifically in each case by a writing intended for that purpose (and which refers specifically to this Guaranty) executed, and delivered to the Guarantor, by the Bank. 10. Disclosure of Information. The Bank may sell or offer to sell the Loan or an interest in the Loan to one or more participants which are affiliates of Bank and may disclose to any such participant or prospective participant any information the Bank has pertaining to the Loan, the Obligations, this Guaranty, or the Guarantor provided, such party is instructed that such information shall be held confidential. The Bank also may disclose any such information to any regulatory body having jurisdiction over the Bank and to any agent or attorney of the Bank and in such other circumstances and to such other parties as necessary or appropriate in the Bank’s reasonable judgment. 11. Governing Law. This Guaranty shall for all purposes be governed by and construed in accordance with the laws of the State of Oklahoma and applicable United States federal law, and is intended to be performed in accordance with, and only to the extent permitted by, such laws. All obligations of the Guarantor hereunder are payable and performable at the place or places where the Obligations are payable and performable. 12. CONSENT TO JURISDICTION. GUARANTOR AND BANK AGREE THAT ANY ACTION OR PROCEEDING TO ENFORCE, OR ARISING OUT OF, THIS GUARANTY MAY BE COMMENCED IN LOCAL, STATE, OR FEDERAL COURTS HAVING JURISDICTION IN ALVA, OKLAHOMA OR WHERE THE MORTGAGED PROPERTY IS LOCATED, AND GUARANTOR WAIVES PERSONAL SERVICE OF PROCESS AND AGREES THAT A SUMMONS AND COMPLAINT COMMENCING AN ACTION OR PROCEEDING IN ANY SUCH COURT SHALL BE PROPERLY SERVED AND SHALL CONFER PERSONAL JURISDICTION IF SERVED BY REGISTERED OR CERTIFIED MAIL TO GUARANTOR, OR AS OTHERWISE PROVIDED BY THE LAWS OF THE STATE OF OKLAHOMA OR THE UNITED STATES 13. Interpretation. If this Guaranty is signed by more than one Person as the "Guarantor", then the term "Guarantor" as used in this Guaranty shall refer to all such Persons jointly and severally, and all promises, agreements, covenants, waivers, consents, representations, warranties and other provisions in this Agreement are made by and shall be binding upon each and every such undersigned Person, jointly and severally. The term "Bank" shall be deemed to include any subsequent holder(s) of the Note. 14. Counterparts. This Guaranty may be executed in multiple counterparts, each of which, for all purposes, shall be deemed an original, and all of which together shall constitute one and the same agreement. 15. Miscellaneous. This Guaranty embodies the entire agreement between the Bank and the Guarantor with respect to the guaranty by the Guarantor of the Obligations. This Guaranty supersedes all prior agreements and understandings, if any, with respect to guaranty by the Guarantor of the Obligations. This Guaranty does not supersede, replace or in any manner invalidate any other guaranty delivered by Guarantor to the Bank, which guaranty or guarantees, and any renewals, substitutions or replacements thereof, shall remain in full force and effect. This Guaranty may not be modified, amended or superseded except in a writing signed by the Bank and the Guarantor referencing this Guaranty Agreement by its date and specifically identifying the portions herof that are to be modified, amended or superseded. This Guaranty is binding not only on the Guarantor, but also on the Guarantor's heirs, personal representatives, successors and assigns. If any provision of this Guaranty or the application thereof to any Person or circumstance shall, for any reason and to any extent, be declared to be invalid or unenforceable, neither the remaining provisions of this Guaranty nor the application of such provision to any other Person or circumstance shall be affected thereby, and the remaining provisions of this Guaranty, or the applicability of such provision to other Persons or circumstances, as applicable, shall remain in effect and be enforceable to the maximum extent permitted by applicable law. 16. Setoff. In support of its obligations under this Guaranty, the Guarantor hereby grants Bank a security interest in all deposit accounts maintained by Guarantor with the Bank, together with all net credit balances contained therein, and further, grants the Bank a right of setoff against any such net credit balances; provided, however, such right of setoff shall only be exercised in the event the Guarantor fails to timely pay any amount due under this Guaranty. [SIGNATURE ON FOLLOWING PAGE] IN WITNESS WHEREOF, the Guarantor duly executed and delivered this Guaranty as of the date first written above. GUARANTOR: [signature] Jarret Portz Leslie LaMastus Address of Guarantor: Jarret Portz 5601 Hwy 95 N Suite 730 Lake Havasu City, AZ 86404 Leslie LaMastus 5601 Hwy 95 N Suite 730 Lake Havasu City, AZ 86404 Address of Bank: BancCentral, National Association 604 Flynn Street PO Box 667 Alva, Oklahoma 73717 IN WITNESS WHEREOF, the Guarantor duly executed and delivered this Guaranty as of the date first written above. GUARANTOR: ______________________________ Jarret Portz ______________________________ Leslie LaMastus Address of Guarantor: Jarret Portz 5601 Hwy 95 N Suite 730 Lake Havasu City, AZ 86404 Leslie LaMastus 5601 Hwy 95 N Suite 730 Lake Havasu City, AZ 86404 Address of Bank: BancCentral, National Association 604 Flynn Street PO Box 667 Alva, Oklahoma 73717 EXHIBIT “D” DEED OF TRUST THIS DEED OF TRUST AND SECURITY AGREEMENT, is made and entered into as of October 27, 2021 by and between LBJ ENTERPRISES LLC, a Delaware limited liability company, as Grantor ("Grantor"), with an address of 513 N Lake Havasu, Lake Havasu City, AZ 86403, OLD REPUBLIC TITLE COMPANY, as Trustee ("Trustee"), with an address of 5501 Jefferson St. NE Ste. 100, Albuquerque, NM 87109, Attn: Beatrice Montoya, and BANCENTRAL, NATIONAL ASSOCIATION, a national banking association, as Beneficiary ("Beneficiary"), with an address of 604 Flynn Street, PO Box 667, Alva, Oklahoma 73717, said Trustee and said Beneficiary both being Grantees hereunder. WHEREAS, Grantor, is justly indebted to Beneficiary pursuant to the following instruments (collectively the "Debt Instruments"): (a) the Promissory Note dated October 27, 2021 from Grantor to Beneficiary in the original principal amount of $7,860,000.00, having a maturity date of October 27, 2041 (the "Note"); and (b) the Loan Agreement dated October 27, 2021 by and between Grantor and Beneficiary (the "Loan Agreement"). NOW, THEREFORE, in consideration of the foregoing recitals, the loan to Grantor evidenced by the Debt Instruments, the trust herein created and other legally sufficient consideration, the receipt whereof is hereby acknowledged, and in order to secure the payment and performance of the indebtedness and obligations owed by Grantor to Beneficiary under the Debt Instruments according to their tenor and effect, the payment and performance of Grantor's obligations hereunder, and the payment or performance of all future obligations of Grantor to Beneficiary, Grantor has executed and delivered this Deed of Trust. GRANTING CLAUSES Grantor does by these presents Grant, Bargain, Sell, Convey, Assign, Mortgage and Warrant unto the Trustee and his successors and assigns forever and Grant a security interest to Trustee in the following described real and personal property: 1. All of the real estate situate described in Exhibit A attached hereto and made a part hereof, together with: all tenements and hereditaments thereunto appertaining; all after-acquired interests of every kind and nature therein, including, but not limited to, remainders and reversions therein; all easements, licenses, rights-of-way, common areas and common elements, if any, appurtenant, attached or belonging to said real estate, whether or not specifically described herein; said real estate and the other property, rights and interests described in this granting clause are hereinafter sometimes collectively called the "Land"; 2. All buildings, structures, fixtures and other improvements now situate on the Land or which may hereafter be erected or placed thereto; and all replacements, substitutions, attachments, modifications, additions, improvements, upgrades and accessions of, to or upon any of the foregoing, now or at any time hereafter acquired; said improvements and the other property described in this granting clause are hereinafter sometimes collectively called the "Improvements"; 3. All right, title and interest of Grantor in and to the following, including the right to collect and receive the same, to wit: (a) All proceeds of insurance paid or payable as a result of damage to or destruction of the Land and Improvements or any part thereof; and (b) Any and all awards or payments, including interest thereon, which may be made with respect to all or any part of the property described above as a result of: (i) any taking by virtue of condemnation or other exercise of the right of eminent domain (including, without limitation, the alteration of the grade of any streets or roads); (ii) the sale of any such property under threat or in anticipation of any such taking; and (iii) any other damage or injury to or decrease in the value of any such property; and 4. All proceeds of the conversion, voluntary or involuntary, of any of the foregoing into cash or liquidated claims; all of the foregoing property being mortgaged hereunder hereinafter collectively called the "Mortgaged Property"; TO HAVE AND TO HOLD THE MORTGAGED PROPERTY, whether now owned or hereafter acquired, unto the Trustee, his successors and assigns forever, IN TRUST, HOWEVER, for the Beneficiary and the purposes set forth herein. GRANTOR COVENANTS AND AGREES AS FOLLOWS: 1. Payment of Debt Instruments. Grantor will pay the amounts due under the Debt Instruments and the other indebtedness secured hereby in full as herein and in the Debt Instruments provided and will keep and perform all of the agreements, conditions and covenants in this Deed of Trust and in all other instruments securing payment of the Debt Instruments. The interest, repayment and other terms and provisions of the Debt Instruments are hereby incorporated by reference into this Deed of Trust as fully as if set forth at length herein. 2. Title and Lien. As of the delivery hereof, Grantor is the lawful owner of the Mortgaged Property and is seized of a good and indefeasible estate of inheritance therein free and clear of all liens and encumbrances except the Liens described on Exhibit B attached hereto ("Permitted Encumbrances"), has full power to subject the Mortgaged Property to the lien hereof and will warrant and defend the title thereto forever against the claims and demands of all persons whomsoever. Except for the Permitted Encumbrances, the lien created by this Deed of Trust is prior to all liens on the Mortgaged Property. Grantor will, at its expense, do all such further acts and execute, acknowledge, deliver and record such further instruments and documents as Beneficiary shall require to continue, preserve and maintain this Deed of Trust as a valid and subsisting lien on the Mortgaged Property and the priority of this Deed of Trust and the record notice thereof so that no rights or liens of others shall gain parity with or priority over this Deed of Trust until all indebtedness secured hereby is fully paid, or in the event of a foreclosure sale hereunder, so that the purchaser at said sale shall acquire good title in fee simple to the Mortgaged Property free and clear of all liens and encumbrances subject to the Permitted Encumbrances. 3. Taxes, Assessments and Utilities. Grantor shall pay before delinquent, all taxes, assessments, water and sewer charges and public charges, general and special, now existing against the Land and Improvements or hereafter levied or assessed thereon. Grantor shall pay (or cause to be paid) before delinquent all charges for gas, electricity, water, sewer or other public utility services furnished to the Land and Improvements. 4. Insurance. Grantor shall obtain and keep in full force and effect during the term of this Deed of Trust at its sole cost and expense, policies of insurance as set forth in Section 6.5 of the Loan Agreement. 5. Preservation and Maintenance; Liens. Except as permitted in the Loan Agreement, Grantor shall keep all Improvements in good order and repair and will not permit waste thereon or substantial deterioration or loss of value thereof. None of the Improvements shall be removed unless replaced with similar property of equal or greater value or shall be materially structurally altered without the prior written consent of Beneficiary. Grantor will not do anything or suffer or permit anything to be done whereby the lien of this Deed of Trust and the priority thereof might or could be impaired. Grantor shall pay, when due, the claims of all persons supplying labor or materials for the construction, maintenance, rebuilding, renovation, repair or restoration of the Land and Improvements. Grantor shall comply with all laws, statutes, rules, regulations, ordinances, restrictions and covenants applicable to the ownership, use or occupancy of the Land and Improvements, including, without limitation, building codes and zoning ordinances. 6. Inspection. Beneficiary is hereby authorized to enter upon and inspect the Land and Improvements or any part thereof, upon reasonable notice to Grantor, at any time during normal business hours during the existence of the debt secured hereby, and Beneficiary is hereby granted an easement to enter upon and inspect the Land and Improvements. 7. Protection of Beneficiary's Security. If the Grantor fails to perform any of the covenants and agreements contained in this Deed of Trust or if any action or proceeding is commenced which affects the Mortgaged Property or the interest of the Beneficiary therein, or the title thereto, then the Beneficiary, at Beneficiary's option, may perform such covenants and agreements, defend against and/or investigate such action or proceeding, and take such other action as the Beneficiary deems necessary to protect the Beneficiary's interest. Beneficiary shall be the sole judge of the legality, validity and priority of any claim, lien, encumbrance, tax, assessment, charge and premium paid by it and of the amount necessary to be paid in satisfaction thereof. Beneficiary is hereby given the power of attorney (which power is coupled with an interest and is irrevocable) to enter upon the Land and Improvements as the Grantor’s agent and in the Grantor’s name and to perform any and all covenants and agreements required to be performed by the Grantor as herein provided. Any amounts disbursed or incurred by the Beneficiary pursuant to this paragraph, with interest thereon, shall be additional amounts secured by this Mortgage. Such amounts shall be immediately due and payable, and shall bear interest from the date disbursed or incurred at a rate of interest (herein called the “Note Rate”) equivalent to the rate of interest applicable to principal indebtedness under the Note until paid, unless collection from Grantor of interest at the Note Rate would be contrary to applicable law, in which event such amounts shall bear interest at the highest rate which may be collected from Grantor under applicable law. Beneficiary shall, at its option, be subrogated to the lien of any mortgage or other lien discharged in whole or in part by its advancement or disbursement of sums under the Debt Instruments or by the Beneficiary under the provisions hereof whether or not such mortgage or other lien has been released of record, and any such subrogation rights shall be additional and cumulative security for this Deed of Trust. Nothing contained in this paragraph shall require the Beneficiary to incur any expense or do any act hereunder, and the Beneficiary shall not be liable to the Grantor for any damages or claims arising out of any action taken by the Beneficiary pursuant to this paragraph. 8. Transfer of Mortgaged Property. If Grantor or any successor in interest to the Mortgaged Property, or any part thereof, or any interest therein, should, without the prior written consent of the Beneficiary, sell, convey, transfer or alienate the Mortgaged Property, or any part thereof, or any interest therein, or be divested of its title or any interest therein in any manner, whether voluntary or involuntary, Beneficiary, at its option and without notice to any person, shall be entitled to accelerate the maturity of all indebtedness and obligations owed by Grantor to Beneficiary, which shall thereupon be immediately due and payable in full, and to exercise all rights, remedies, privileges and powers available to it under this Deed of Trust, the Debt Instruments and any applicable law due to a default thereunder. However, such option shall not be exercised by Beneficiary if exercise is prohibited by applicable law as of the date of this Deed of Trust. 9. Condemnation. Grantor hereby pledges and assigns to the Beneficiary, as additional security for the indebtedness and obligations secured hereby, all awards and payments, including interest thereon, which become payable by reason of (i) any taking (herein called “Taking”) of the Mortgaged Property, or any part thereof, whether directly or indirectly or temporarily or permanently, in or by condemnation or other eminent domain proceedings (including, without limitation, the alteration of the grade of any streets or roads), (ii) the sale of the Mortgaged Property, or any part thereof, under threat or in anticipation of a Taking or (iii) any other damage or injury to or decrease in the value of the Mortgaged Property, or any part thereof. Such awards and payments, including interest thereon, shall be paid directly to Beneficiary and applied toward the payment of the indebtedness and obligations secured hereby in such manner as Beneficiary may determine after first deducting the costs and expenses of Beneficiary (including attorneys’ fees to the extent permitted by applicable law) incurred in connection with any such Taking, sale, damage, injury or decrease. Upon receipt by Grantor of notice of any proceedings or negotiations relating to any such Taking or such other damage or injury or decrease in value, Grantor will promptly give notice thereof to Beneficiary, and Beneficiary may appear or formally intervene in any such proceedings and participate in any such negotiations and may be represented by counsel for the protection of its interests in the Mortgaged Property. Grantor will execute and deliver to the Beneficiary from time to time such further instruments as may be requested by Beneficiary to confirm such pledge and assignment to Trustee of any such award or payment. Upon the actual or threatened waste, demolition or removal of any of the Improvements, upon an actual or threatened Taking or upon any other damage or injury to or decrease in the value of the Mortgaged Property, Beneficiary shall be entitled, at its option and without notice to Grantor, to accelerate the maturity of all indebtedness and obligations owed by Grantor to Beneficiary, which shall thereupon be immediately due and payable in full, and to exercise all rights, remedies, privileges and powers available to it under this Deed of Trust, the Debt Instruments and any applicable law due to a default thereunder. 10. Assignment of Rents; Appointment of Receiver. As additional security for the indebtedness and obligations secured hereby, Grantor hereby assigns and pledges to Beneficiary the rents, royalties, income and other benefits of and from all or any part of the Land and Improvements (herein collectively called the "Rents"), provided that Grantor shall, prior to acceleration hereunder or abandonment of the Land and Improvements, have the right to collect and retain the Rents as they become due and payable. Upon acceleration hercunder or abandonment of the Land and Improvements, Beneficiary, in person, by agent or by judicially appointed receiver, shall be entitled to enter upon, take possession of and manage the Land and Improvements, and to collect the Rents, including those past due. All Rents collected by Beneficiary or such receiver shall be applied first to payment of the costs of management of the Land and Improvements and collection of the Rents, including, but not limited to, receiver's fees, premiums on receiver's bonds and reasonable attorneys' fees, and then to the payment of the indebtedness and obligations secured hereby. Beneficiary and such receiver shall be liable to account only for those Rents actually received. 11. Security Agreement. This Deed of Trust shall constitute a security agreement with respect to any portion of the Mortgaged Property subject to the New Mexico Uniform Commercial Code (the "Code"), and Grantor hereby grants to Trustee a security interest in any portion of the Mortgaged Property subject to the Code. As additional security for the obligations and indebtedness secured hereby, Grantor hereby grants to Beneficiary a security interest in any portion of the Mortgaged Property subject to the Code. 12. Maximum Interest. No provision of this Deed of Trust or the Debt Instruments shall require the payment or permit the collection of interest in excess of the maximum amount permitted by law. If any excess interest in such respect is herein or in the Debt Instruments provided for, or shall be adjudicated to be so provided for, neither Grantor nor Grantor's successors in title shall be obligated to pay such interest in excess of the maximum amount not prohibited by law, and the right to demand the payment of any such excess shall be and hereby is waived. This provision shall control over any other provision of this Deed of Trust or the Debt Instruments. If any such excess interest shall have been paid by Grantor, it shall automatically be treated as a payment of principal indebtedness evidenced by the Debt Instruments as of the time of payment. 13. Default and Remedies. NOW, if the indebtedness due under the Debt Instruments and the other indebtedness and obligations secured hereby be paid and performed when due and the agreements, conditions and covenants contained herein be faithfully kept and performed as provided herein, then these presents shall be null and void and the Mortgaged Property shall be released from the lien hereof at the cost of Grantor; provided, however, if such indebtedness and obligations be not paid and performed when due or any of the agreements, conditions and covenants herein contained be not kept and performed as provided herein, then, and in every such case, this Deed of Trust shall remain in full force and effect, and during the continuance of any such default: (a) Beneficiary, at its option and after giving any notice required by applicable law, may declare all indebtedness and obligations owed by Grantor to Beneficiary to be immediately due and payable for all purposes, and upon any such declaration the entire principal balance of the indebtedness due under the Debt Instruments, all accrued and unpaid interest thereon and all other indebtedness and obligations secured hereby shall become and be immediately due and payable in full; (b) The Trustee or successor trustee appointed as herein provided, shall, at the option and upon the request of the Beneficiary, proceed to sell the Mortgaged Property and any and every part thereof, at public venue to the highest bidder for cash, at the place where such trustees' sales are customarily held in the New Mexico county in which the Land and Improvements are located, first giving such notices and publishing such advertisements of the time, terms and place of sale and of the property to be sold as may be required by law; and upon such sale shall execute and deliver a deed of conveyance to the property sold to the purchaser or purchasers thereof, and any statement or recital of fact in such deed shall be prima facie evidence of the proof of such recital; and the Trustee shall receive the proceeds of such sale out of which shall be paid: FIRST, the costs and expenses of executing this trust including compensation to the Trustee for his services and reasonable attorneys' fees for his attorney and for the attorney of the Beneficiary, if such attorneys be employed; SECOND, to the Beneficiary upon the usual vouchers therefor, all monies, including interest thereon, advanced and paid under and in pursuance of the terms and provisions of this Deed of Trust; THIRD, the indebtedness due under the Debt Instruments, including interest accrued thereunder to the time of such sale; and FOURTH, any subsequent lien; and the balance, if any, shall be paid to the Grantor or its legal representative. The Trustee may sell and convey said property under the power aforesaid, to any person, firm or corporation, although the Trustee has been, may now be or may hereafter be attorney for or agent of the Beneficiary. The power of sale hereunder shall not be exhausted by any one or more of such sales (or attempts to sell) as to all or any portion of the Mortgaged Property remaining unsold, but shall continue unimpaired until all of the Mortgaged Property has been sold or the indebtedness due under the Debt Instruments and all other indebtedness and obligations secured hereby shall have been paid in full; (c) Beneficiary shall be entitled to foreclose this Deed of Trust as a mortgage in any court of competent jurisdiction and shall be entitled to a judgment for the sums due upon the Debt Instruments and any additional indebtedness and obligations secured hereby, including, to the extent permitted by law, all costs and expenses of enforcing the same, and shall be entitled to a decree for the sale of the Mortgaged Property in satisfaction of said judgment foreclosing all of the rights and equities of Grantor in and to the Mortgaged Property, as well as all persons claiming under Grantor, at which sale appraisement of the Mortgaged Property, and all other exemptions relating to the Mortgaged Property are hereby expressly waived by Grantor. This right is cumulative and is not a waiver of the power of sale vested in the Trustee as herein provided; (d) Beneficiary and/or the Trustee may exercise any and all applicable remedies available to a secured party under the Code; and (e) Beneficiary may commence and continue to exercise any or all other rights, remedies, privileges and powers given Beneficiary by this Deed of Trust, the Debt Instruments, any additional security instruments currently or hereafter serving as security for any of the indebtedness and obligations secured hereby, the laws of the State of New Mexico and any other applicable law due to such default. In furtherance, but not in limitation of, the foregoing, Beneficiary and/or the Trustee may elect to foreclose upon any or all of the personal property collateral and real property security under such additional security instruments or upon the Mortgaged Property or any part thereof either simultaneously, successively or alternatively, and Beneficiary may elect the order in which said personal property collateral and real property security, including the Mortgaged Property, shall be sold and the order of the application of the proceeds thereof. In the event of foreclosure of this Deed of Trust, any and all abstracts of title with respect to the Land and Improvements or any part thereof owned or in the possession of the Grantor, which are hereby pledged and assigned to the Trustee as additional security for the indebtedness and obligations secured hereby, shall be delivered and shall belong to the respective purchaser or purchasers at the foreclosure sale. 14. Trustee to Let the Land and Improvements. The Trustee hereby lets the Land and Improvements to the Grantor until a sale be had under the foregoing provisions therefor, or until a default in any of the agreements, conditions and covenants of this instrument or any Debt Instruments upon the following terms and conditions, to-wit: Grantor and every and all persons claiming or possessing the Land and Improvements, or any part thereof, by, through or under Grantor shall pay rent therefor during said term at the rate of One Cent (1¢) per month, payable monthly upon demand, and shall surrender immediate peaceable possession of the Land and Improvements and any and every part thereof sold under the foregoing provisions to the purchaser thereof under such sale, without notice or demand therefor, and shall and will at once, without notice, surrender up possession of the Land and Improvements and every part thereof in the event Beneficiary shall take charge and enter the Land and Improvements as hereinbefore provided. 15. Remedies Cumulative. No remedy granted or conferred by this Deed of Trust is intended to be exclusive of any other remedy or remedies, and each and every remedy shall be cumulative and shall be in addition to every remedy given hereunder or now or hereafter existing at law or in equity or by statute. No delay or omission of Beneficiary or the Trustee, as the case may be, to exercise any right, remedy, privilege or power accruing upon any default shall impair any such right, remedy, privilege or power or shall be construed to be a waiver of any such default or any acquiescence therein, and every right, remedy, privilege and power given by this Deed of Trust or now or hereafter existing at law or in equity or by statute may be exercised from time to time and as often as may be deemed expedient by Beneficiary or the Trustee, as the case may be. 16. Substitute Trustee. Beneficiary is hereby granted full power at any time to appoint a substitute trustee or trustees by instrument properly executed, acknowledged and filed for record in the Office of the Recorder of Deeds in and for the county wherein this instrument is recorded, for any reason satisfactory to itself, who, from and after the filing of such appointment, shall have and possess all of the powers, authorities, duties and obligations vested in or upon the Trustee designated in this instrument. 17. Waiver of Marshalling. Grantor (for itself and all who may claim under it), any person who consents to this Deed of Trust and any person who now or hereafter acquires a lien on the Mortgaged Property or any part thereof and who has actual or constructive notice of this Deed of Trust or Trustee's lien hercunder hereby waive, to the full extent that they lawfully may, any and all rights to require the marshalling of assets in connection with the exercise of any of the rights, remedies, privileges and powers permitted by applicable law or provided herein. 18. Invalid Provisions to Affect No Others. If any one or more of the agreements, conditions, and covenants contained in this Deed of Trust or in the Debt Instruments shall be invalid, illegal or unenforceable in any respect, the validity of the remaining agreements, conditions and covenants contained herein and in the Debt Instruments shall be in no way affected, prejudiced, limited or impaired thereby. 19. Notice. Except for any notice required under applicable law to be given in another manner, all notices permitted or given pursuant to this Deed of Trust shall be sufficient if mailed postage prepaid, United States certified or registered mail, return receipt requested, to the above-described addresses of the Grantor and Beneficiary, or to such other address as either Grantor or Beneficiary may request in writing. Any time periods provided in the giving of any notice hereunder shall commence upon the date such notice is deposited in the mail as aforesaid. 20. Headings. The headings of the paragraphs of this Deed of Trust are for convenience of reference only, are not to be considered a part hereof and shall not limit or otherwise affect any of the terms hereof or the interpretation thereof. 21. Miscellaneous. Whenever the singular or plural number or masculine, feminine or neuter gender is used herein, it shall equally include the other, and every mention of the Grantor, Trustee or Beneficiary shall include the heirs, legal representatives, successors, and assigns of the Grantor, the successors of the Trustee or the heirs, legal representatives, successors, endorsers and assignees of the Beneficiary, as applicable. If more than one party is designated as "Grantor" herein, each such party shall be jointly and severally liable for the performance and observance of all agreements, conditions and covenants of this Deed of Trust to be performed and observed by Grantor. This Deed of Trust, without regard to the place of contract or payment, shall be construed and enforced according to and governed by the laws of the State of New Mexico. [REMAINDER OF PAGE LEFT INTENTIONALLY BLANK.] IN WITNESS WHEREOF, Grantor has caused these presents to be executed as of the day and year first above written. LBJ ENTERPRISES LLC. a Delaware limited liability company By: __________________________ Name: Jarrett Portz Its: Manager STATE OF (Arizona ) COUNTY OF Mohave ) ss. This instrument was acknowledged before me on October 21, 2021 by Jarrett Portz as manager of LBJ Enterprises, LLC, a Delaware limited liability company. (SEAL) VONNA L ZACHER Notary Public - Arizona Mohave County My Comm Expires Nov 21, 2021 Printed Name: Vonna L Zacherr Notary Public in and for said State Commissioned in Mohave County My Commission Expires: November 21, 2021 EXHIBIT A Legal Description Tract C-1-A, PLAT OF LANDS OF GREVEY, within Section 17, T. 10 N., R. 4 E., N.M.P.M., as the same is shown and designated on the plat therein, filed in the office of the County Clerk of Bernalillo County, New Mexico, on May 25, 2010, in Plat Book 2010C, Folio 62. EXHIBIT B Permitted Encumbrances 1. Reservations contained in the Patent from the United States of America, recorded February 8, 1918 in Book 60, Page 265, records of Bernalillo County, New Mexico. 2. Restrictions appearing of record filed June 9, 2006 in Book A118, Page 4601 as Document No. 2006084844, records of Bernalillo County, New Mexico, but omitting any restriction based on race, color, religion or national origin to the extent such covenants, conditions or restrictions violate 42 USC 3604. 3. Easements and notes as shown on the Plat recorded May 25, 2010 in Plat Book 2010C, Page 62 as Document No. 2010046932, records of Bernalillo County, New Mexico. 4. Easement in favor of Public Service Company of New Mexico (Electric), and rights incident thereto, recorded January 4, 2011 as Document No. 2011000648, records of Bernalillo County, New Mexico. 5. Terms, covenants and conditions contained in that Ground Lease dated September 15, 2002, by and between Lomas Jack, I.L.C., a New Mexico domestic limited liability company, as successor in interest to Helen Grevey, successor sole Trustee of the Joseph and Simone Grevey Trust, established under Restatement of Trust Agreement dated April 14, 1989; Eileen Grevey, as her sole and separate property and Estelle Rosenblum, a widow, Lessor, and T-Mobile Texas, L.P., as successor in interest to VoiceStream PCS, II Corporation, a Delaware corporation, Lessee, as disclosed by Notice and Memorandum of Lease recorded June 9, 2006 in Book A118, Page 4602 as Document No. 2006084845; The Lessor's interest under said lease has been assigned to Valentine Capital, LLC, a Delaware limited liability company pursuant to that certain Purchase and Sale of Lease and Successor Lease dated as of November 5, 2012, a memorandum of which was recorded on December 28, 2012 as Document No. 2012138166 and as amended pursuant to that certain Amendment to Ground Lease (with Option to Exercise Ground Lease) dated as of June 27, 2013, a memorandum of which was recorded on July 1, 2013 as Document No. 2013074398. Memorandum of Lease Amendment Agreement recorded March 27, 2019 as Document No. 2019023586. Assignment recorded December 2, 2019 as Document No. 2019102304, records of Bernalillo County, New Mexico. 6. Terms, covenants and conditions contained in that certain Site License dated June 23, 2006, by and between TMobile West Corporation, a Delaware corporation, t/k/a Pacific Bell Wireless, LLC, and New Cingular Wireless PCS, I.LC., a memorandum of which was recorded on July 7, 2006 as Document No. 2006100921, records of Bernalillo County, New Mexico. 7. Terms, covenants and conditions contained in that certain Sub-Lease dated July 30, 2013, by and between TMobile West Tower I.LC., a Delaware limited liability company and CCTMO I.LC., a Delaware limited liability company, as disclosed by that certain Memorandum of Master Prepaid lease and Management Agreement, dated July 30, 2013, recorded August 8, 2013 as Document No. 2013088685, records of Bernalillo County, New Mexico. 8. Private Facility Drainage Covenant recorded December 3, 2019 as Document No. 2019103151, records of Bernalillo County, New Mexico. 9. Infrastructure Improvements Agreements, Agreement to construct Public Improvements recorded March 16, 2021 as Document No. 2021030947, records of Bernalillo County, New Mexico.