Patch of Land Lending, LLC v. Banyan Strategies LLC

IN THE DISTRICT COURT IN AND FOR BECKHAM COUNTY, STATE OF OKLAHOMA PATCH OF LAND LENDING, LLC; Plaintiff, vs. BANYAN STRATEGIES LLC; TONYA WEATHERS; JAMES PETERSON; OCCUPANTS OF THE PREMISES; BANYAN OK LLC; SHREE SWAMINARAYAN, LLC; TREASURER OF BECKHAM COUNTY, STATE OF OKLAHOMA; BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF BECKHAM, STATE OF OKLAHOMA; Defendants. PETITION FOR FORECLOSURE OF MORTGAGE FIRST CAUSE OF ACTION COMES NOW the Plaintiff and for its First Cause of Action against the Defendants, alleges and states: 1. Plaintiff is a corporation duly organized under the laws of the United States of America, and was at all times hereinafter stated, authorized to transact business in the State of Oklahoma. THIS FORECLOSURE ACTION UPON COMPLETION IS NOT TO BE CONSTRUED AS A TITLE GUARANTEE OR FOR PURPOSES OF TITLE INSURANCE. 2. This court has both jurisdiction and venue for this cause of action. 3. On or about April 6, 2018, the Defendant, Banyan Strategies LLC, for good and valuable consideration, made, executed and delivered to Patch of Land Lending, LLC ("Plaintiff"), a certain promissory note, in writing, promising and agreeing to pay to the holder thereof, the sum of $1,151,000.00 with interest thereon at the rate of 10.5% per annum on the unpaid balance (the "Note"). The terms of the Note provided for monthly installments of interest only until the Maturity Date of May 1, 2019, at which time the Note required a balloon payment of the lesser of $1,151,000.00 and the unpaid principal balance, in addition to any unpaid interest, costs and fees. A copy of said Note is attached hereto as Exhibit "A" and incorporated herein by reference. 4. As a part of this same loan transaction, Defendants Tonya Weathers ("Weathers") and James Peterson ("Peterson") executed a Guaranty in favor of Plaintiff dated April 6, 2018, securing payment of the Note and all indebtedness due thereunder (the "Guaranty"). A copy of said Guaranty is attached hereto, marked Exhibit "B" and made a part hereof as if incorporated herein in full. 5. That in order to secure payment of the Note, the Defendant, Banyan Strategies LLC executed a mortgage in favor of Plaintiff, which was recorded April 20, 2018 in Book 2276 at Page 456 in the records of the Beckham County Clerk with all mortgage tax due thereon fully paid (the "Mortgage"). A copy of the Mortgage is attached here, marked Exhibit "C" and made a part hereof as if incorporated herein in full. 6. That the full and complete legal description of the Property subject to and encumbered by the Mortgage is as follows: Three tracts of land lying in the South Half of the Northwest Quarter (S/2 NW/4) of Section 35, Township 11 North, Range 21 West of the Indian Meridian, Beckham County, Oklahoma, being described by metes and bounds as follows: Tract One: A tract of land lying in the S/2 NW/4 of Section 35, Township 11 North, Range 21 West of the Indian Meridian. Beckham County, Oklahoma: Beginning at a point 660.0 feet South of the North line of said S/2 NW/4 and 660.0 feet East of the West line of said S/2 NW/4; Thence North 00°04'40'' West along the East line of a tract of land presently owned by Public Service Company of Oklahoma, a distance of 660.0 feet to the North line of said South Half of the Northwest Quarter; Thence South 89°58'39'' East along said North line a distance of 368.62 feet; Thence South 00°04'40'' East a distance of 436.16 feet; Thence Southeasterly on a curve to the left having a radius of 572.96 feet a distance of 100.00 feet; Thence South 10°04'40'' East a distance of 4.41 feet to a point on the North line of South Country Park II Addition to the City of Elk City, Beckham County, Oklahoma; Thence along said Addition as follows; South 89°55'20'' West a distance of 25.39 feet; Thence South 10°04'40'' East a distance of 51.63 feet; Thence Southeasterly on a curve to the left having a radius of 547.96 feet a distance of 69.63 feet; Thence North 89°58'39'' West a distance of 369.38 feet to the point of beginning. LESS AND EXCEPT a tract of land lying in the S/2 NW/4 of Section 35, Township 11 North, Range 21 West of the Indian Meridian, Beckham County, Oklahoma, also described by metes and bounds as follows: Beginning at a point 660.00 feet South of the North line of said S/2 NW/4 and 728.40 feet East of the West line of said S/2 NW/4; Thence North 0°04'40'' West a distance of 317.50 feet; Thence South 89°58'39'' East a distance of 153.30 feet; Thence South 0°04'40'' East a distance of 317.50 feet; Thence North 89°58'39'' West a distance of 153.30 feet to the point of beginning. Tract Two: Beginning at a point 878.91 feet South 00°04'40'' East and 40.00 feet North 89°55'20'' East of the Northwest Corner of said S/2 NW/4 of Section 35, Township 11 North, Range 21 West of the Indian Meridian, Beckham County, Oklahoma; Thence North 89°55'20'' East perpendicular to the West line of said Section 35, a distance of 466.70 feet; Thence North 00°04'40'' West parallel with said West line a distance of 218.03 feet; Thence South 89°58'39'' East parallel with the North line of said S/2 NW/4 a distance of 342.00 feet; Thence South 00°04'40'' East parallel with the West line of said Section 35 a distance of 372.43 feet; Thence South 89°55'20'' West perpendicular to said West line of said Section 35 a distance of 138.70 feet; Thence North 00°04'40'' West parallel with the West line of said Section 35 a distance of 5.00 feet; Thence South 89°55'20'' West perpendicular to said West line of said Section 35 a distance of 670.00 feet; Thence North 00°04'40'' West parallel with the West line of said Section 35 a distance of 150.00 feet to the point of beginning. Said tract being same as proposed Lot One (1), Block One (1) of South Country Park I Addition, Elk City, Beckham County, Oklahoma and Lot One (1), Block Ten (10) of proposed South County Park Addition II, Elk City, Beckham County, Oklahoma. Tract Three: A tract of land lying in the S/2 NW/4 of Section 35, Township 11 North, Range 21 West of the Indian Meridian, Beckham County, Oklahoma: beginning at a point on the West line of said S/2 NW/4; said point being 660.00 feet South of the Northwest corner of said S/2 NW/4: Thence South 00°04'40'' East along said West line a distance of 28.91 feet; Thence North 89°55'20'' East along the North boundary line of a tract of land being presently owned by Production Services, Inc., a distance of 506.70 feet; Thence North 00°04'40'' West parallel with the West line of said S/2 NW/4 a distance of 28.03 feet; Thence North 89°58'39'' West, parallel with the North line of said S/2 NW/4 and along the South boundary line of a tract of land being presently owned by Public Service Company of Oklahoma, a distance of 506.70 feet to the point of beginning, commonly known as 102 Hughes Access Road, Elk City, OK 73644 (the "Subject Property") 7. Defendant, Banyan Strategies, LLC is a Texas limited liability company wholly owned, managed and operated by Defendants Weathers and Peterson. 8. Defendant, Banyan OK, LLC is an Oklahoma limited liability company wholly owned, managed and operated by Defendants Weathers and Peterson. This Defendant was the record owner of the Subject Property at the time the Mortgage was executed, having acquired title to said Property pursuant to a Warranty Deed from Shree Swaminarayan, LLC, recorded January 22, 2018 in Book 2271 at Page 0290 in the records of the Beckham County Clerk. A copy of said Deed is attached hereto, marked Exhibit “D”, and incorporated herein by reference. 9. At all times from loan application through funding of the loan, it was intended by all parties to the transaction that the Subject Property would serve as the collateral to secure repayment of the Note. However, due to mutual error and mistake of the parties and/or their agents, the Mortgage executed by Banyan Strategies, LLC did not preserve or give effect to said intention. 10. The original loan application was submitted to Plaintiff by the record property owner, Banyan OK, LLC, an Oklahoma limited liability company owned, controlled and managed by Defendants Weathers and Peterson. Defendants Weathers and Peterson later decided to borrow the funds in the name of Banyan Strategies, LLC, a Texas limited liability company they also owned, controlled and managed. A subsequent loan application by this entity was approved, with the understanding that Banyan OK, LLC would have to deed the Subject Property to Banyan Strategies, LLC prior to execution of the Mortgage and funding of the loan. 11. However, due to the mutual mistake of the parties and their agents, there was no deed executed prior to, or at the time of closing, transferring title between the two limited liability companies owned and controlled by Weathers and Peterson. In order to give effect to the parties intention that the Mortgage stand as security for payment of the Note, the Mortgage should be reformed to substitute Banyan OK, LLC (the true and correct owner of the Subject Property), as Mortgagor in place of, Banyan Strategies LLC. Moreover, Plaintiff will lose the benefit for which it bargained and provided consideration (collateral to secure payment of the Note) through no fault of its own, absent such relief. 12. Reformation of the Mortgage, to rectify the mutual mistake of the parties (including Weathers and Peterson as owners of both entities and Guarantors of the Note) is well within the equitable powers of the Court. Plaintiff therefore prays that the Court exercise its equitable powers to reform and correct the Mortgage to substitute Banyan OK LLC, the record owner of the Subject Property, as Mortgagor thereunder. 13. In the alternative, Plaintiff urges the Court to find that the facts set forth above demonstrate that an equitable lien should be imposed upon the Subject Property owned by Defendant Banyan OK, LLC. Oklahoma case law provides for the establishment of equitable liens in order to give effect to the intention of parties to an agreement. In Mullens vs. C. Wright Lumber Company, 77 P.2d 700, the Oklahoma Supreme Court was asked to approve imposition of an equitable lien on funds escrowed by the lessee of an oil well to pay claims by individuals furnishing goods and services to said Lessee. In its opinion, the Court noted that there are two circumstances where such equitable liens might properly be imposed: (1) "those implied and declared by a court of equity out of general considerations of right and justice as applied to the relation of the parties and circumstances of their dealings, and (2) those that arise from a contract to charge a particular piece of property with a debt or obligation…". 14. The facts herein demonstrate that Plaintiff would be entitled to imposition of an equitable lien under either of the two theories. The parties to the loan which is the subject of this action clearly intended that Plaintiff have an enforceable mortgage as security for repayment of the funds advanced to Banyan Strategies, LLC (and payment thereof guaranteed by Defendants Weathers and Peters). In addition, the Mortgage clearly demonstrates the intent of the parties to encumber a particular piece of real property (ie, the Subject Property) with a lien in order to secure repayment of the Note. Plaintiff therefore urges the Court to establish and impose an equitable lien upon the Subject Property, and that said lien be subject to foreclosure by Plaintiff in order to repay the indebtedness set forth in the Note, and which would have been secured by the Mortgage but for the mutual mistakes of the parties referenced above. WHEREFORE, premises considered, Plaintiff prays for an Order of the Court reforming the Mortgage to substitute Banyan OK, LLC, true owner of the Subject Property as Mortgagor thereunder; or in the alternative, Plaintiff prays for an Order of the Court imposing an equitable lien in favor of Plaintiff upon the Subject Property, which may be foreclosed, and for such other, further and additional relief as this Court deems just and proper in the premises. SECOND CAUSE OF ACTION COMES NOW the Plaintiff, and for its Second Cause of Action first realleges and restates its first cause of action and for further action alleges and states: 15. That Banyon Strategies, LLC maker of the note, executed the Mortgage to Plaintiff, which was dated April 6, 2018 and recorded April 20, 2018 in the Office of the Beckham County Clerk, in Book No. 2276, at Page 456. A written Guaranty that all conditions of the Note (including payment in full of the principal in the amount of $1,151,000.00 plus interest and any other sums due thereunder) was also executed on April 6, 2018 by Defendants Tonya Weathers and James Peterson, owners and managers of Banyan Strategies, LLC and Banyan OK, LLC. 16. By the terms and conditions of said Note and Mortgage now held by the Plaintiff, it is specifically provided that the occurrence of any Event of Default, (including failure to pay any installment due under said Note and Mortgage), the entire amount principal balance of the Note together with interest and all other sums due thereunder, shall at once become due and payable at the option of the Note holder. 17. Plaintiff further states that said payment was due, according to the terms of said Note on April 1, 2019, which said payment has not been made; the subsequent payments due on said Note have not been paid, and Plaintiff, as the holder of said note, has elected to declare the entire balance due and payable; there is now due on said Note and Mortgage the principal sum of $1,084,110.00 with accrued interest thereon, plus interest accruing at the rate of 10.5% per annum from March 1, 2019, until paid, as provided for in said Note and Mortgage. Plaintiff has demanded the payment of the same but the Defendant Banyan Strategies, LLC as well the Guarantors Weathers and Peterson have failed, refused and neglected to pay such amounts due. 18. Plaintiff further states that by reason of the default of said Defendants, the conditions of said Note and Mortgage have been broken; that the whole amount of the indebtedness thereby secured has matured and is now due and payable, together with interest thereon. By reason of the default aforesaid, Plaintiff has been required to pay abstracting charges and will be required to pay other title search expenses during the pendency of this action, and Plaintiff as provided in the Note and Mortgage, is entitled to reimbursement for these costs, the costs of preservation, and the costs of this suit and of collection including a reasonable attorney's fee. 19. Plaintiff has complied with all provisions of the mortgage including provisions relating to notice of default and is thus entitled to foreclosure of the Mortgage and to a decree of this Court that its mortgage lien is a first and prior lien thereon and that the same should be sold to satisfy the indebtedness due Plaintiff herein. 20. That after allowing all just credits, there is due to Plaintiff on said Note and Mortgage the sum of $1,084,110.00, with accrued interest thereon, plus interest accruing at the rate of 10.5% per annum from March 1, 2019, until paid; abstracting expense, accrued and accruing; insurance and preservation expenses accrued and accruing, bankruptcy fees and costs, if any; a reasonable attorney's fee provided for in said Note and Mortgage, and Plaintiff's costs; and all necessary funds advanced by Plaintiff accrued and accruing hereafter through completion of this action, for which said amounts said Mortgage is a first, prior and superior lien upon the Subject Property. 21. That the Defendant, Shree Swaminarayan, LLC may claim some right, title, lien, estate, encumbrance, claim, or interest in and to the Subject Property on account of a defective deed attached hereto as Exhibit "D" and on account of an unreleased mortgage recorded January 22, 2018 in Book 2271 at page 295 in the records of the Beckham County Clerk. A copy of said mortgage is attached hereto as Exhibit “E” and incorporated herein by reference. Plaintiff prays to the Court that the said Defendant, Shree Swaminarayan, LLC, be summoned in this case and be required to set up in this suit any right, title or interest claimed in and to the Subject Property or be forever barred from claiming any right in and to the said real estate. 22. That the Defendant, Occupants of the Premises, may claim some right, title, lien, estate, encumbrance, claim, assessment, or interest in and to the real property involved herein, for and on account of tenancy. Plaintiff states, however, that any right, title, or interest claimed by said Defendant, Occupants of the Premises, is subordinate and inferior to the mortgage lien claimed by the Plaintiff, and this Plaintiff prays to the Court that the said Defendant, Occupants of the Premises, be summoned in this case and be required to set up in this suit any right, title or interest claimed in and to the lands involved in this action or be forever barred from claiming any right in and to the said real estate. 23. That the Defendants, Treasurer of Beckham County, State of Oklahoma and Board of County Commissioners of the County of Beckham, State of Oklahoma, may claim some right, title, lien, estate, encumbrance, claim, assessment, or interest in and to the real property involved herein, for and on account of taxes. Plaintiff states, however, that any right, title, or interest claimed by said Defendants, Treasurer of Beckham County, State of Oklahoma and Board of County Commissioners of the County of Beckham, State of Oklahoma, is subordinate and inferior to the mortgage lien claimed by the Plaintiff, and this Plaintiff prays to the Court that the said Defendants, Treasurer of Beckham County, State of Oklahoma and Board of County Commissioners of the County of Beckham, State of Oklahoma, be summoned in this case and be required to set up in this suit any right, title or interest claimed in and to the lands involved in this action or be forever barred from claiming any right in and to the said real estate. 19. This is an attempt to collect a debt and any information obtained will be used for that purpose. The creditor signed has employed the below law firm to collect the amount of debt, together with any other costs and expenses allowed under the Note and the Mortgage. Prior to the filing of this action and in compliance with the Fair Debt Collection Practices Act the Plaintiff's attorney has mailed Debt Verification Notices to the last known addresses of the debtor. WHEREFORE, premises considered, Plaintiff prays that it have judgment as prayed for in its First Cause of Action, that the Court utilize its equitable powers to reform the Mortgage to substitute Banyan OK, LLC as Mortgagor thereunder, or alternatively, to impose an Equitable Lien on the Subject Property (foreclosable by the Plaintiff), in order to preserve and give effect to the intention of the parties hereto that the Subject Property stand as security for repayment of all sums due under the Note. Plaintiff further prays that it have judgment in personam, of and from the Defendants, Banyan Strategies LLC, Tonya Weathers and James Peterson; and judgment, in rem, of and from the Defendants, Banyan Strategies LLC, Banyan OK, LLC, Tonya Weathers and James Peterson, in the amount of $1,084,110.00 with accrued interest thereon, plus interest accruing at the rate of 10.5% per annum from March 1, 2019, until paid, abstracting expense, accrued and accruing; insurance and preservation expenses accrued and accruing; bankruptcy fees and costs, if any; a reasonable attorney's fee provided for in the Note and Mortgage, and Plaintiff's costs; and all necessary funds advanced by Plaintiff accrued and accruing hereafter through completion of this action. And a further judgment against all of the Defendants, adjudging; That said Mortgage be reformed or an equitable lien be imposed to give effect to the intentions of the parties that the Subject Property secure payment of the Note, that the Mortgage be foreclosed and that the same be declared a valid first and prior lien upon the Subject Property, for and in the amount set forth, and order the said real estate and premises sold, with or without appraisement, as the Plaintiff shall elect at the time judgment is rendered herein; and as provided in said Mortgage, and by law, subject to unpaid taxes, if any, to satisfy said judgment and the proceeds therefrom applied to the payment of the costs herein and payment and satisfaction of the judgment, mortgage and lien of this Plaintiff, and that the surplus, if any, be paid into Court, to abide the further order of the Court; That all of said Defendants be required to appear and set forth any right, title, claim or interest which they have or may have in and to said real estate and premises, which they, in any way claim, is prior or superior to the mortgage and lien of this Plaintiff; That the Court adjudicate that all of said claims are subject, junior and inferior to the Mortgage, lien and judgment of this Plaintiff; and that upon confirmation of said sale, the Defendants herein and each of them, and all persons claiming by, through or under them, since the commencement of this action, be forever barred, foreclosed and enjoined from asserting or claiming any right, title, interest, estate or equity of redemption in and to the Subject Property or any part thereof; That this Plaintiff have such other and further relief as may be just and equitable. KIVELL, RAYMENT AND FRANCIS A Professional Corporation By: __________________________ Date: 2/20/20 Title: Attorney K. Renee' Davis, OBA #15161 Teddi Allen, OBA #14176 Triad Center I, Suite 550 7666 East 61st Street Tulsa, Oklahoma 74133 Telephone (918) 254-0626 Facsimile (918) 254-7915 E-mail: [email protected] ATTORNEYS FOR PLAINTIFF VERIFICATION STATE OF OKLAHOMA ) COUNTY OF TULSA ) ss. K. Renee' Davis, being first duly sworn, upon oath, deposes and says: That he/she is one of the attorneys for the Plaintiff in the above entitled action; that he/she prepared the above and foregoing Petition, knows the contents thereof, and that to the best of his/her knowledge and belief, the matters and things therein set forth are true and correct. By: ____________________________ Date: 2/20/20 Title: Attorney K. Renee' Davis, OBA #15161 Triad Center I, Suite 550 7666 East 61st Street Tulsa, Oklahoma 74133 Telephone (918) 254-0626 Facsimile (918) 254-7915 E-mail: [email protected] ATTORNEYS FOR PLAINTIFF SUBSCRIBED AND SWORN to before me this 20 day of February, 2020, by K. Renee' Davis. NOTARY PUBLIC PROMISSORY NOTE SECURED BY MORTGAGE/DEED OF TRUST (Interest-Only Payments / Balloon Payment / Draws) THE LOAN (THE "LOAN") EVIDENCED BY THIS PROMISSORY NOTE SECURED BY MORTGAGE OR DEED OF TRUST (THIS "NOTE") IS PAYABLE IN FULL AT MATURITY. YOU MUST REPAY THE ENTIRE PRINCIPAL BALANCE OF THE LOAN AND UNPAID INTEREST THEN DUE. LENDER IS UNDER NO OBLIGATION TO REFINANCE THE LOAN AT THAT TIME. YOU WILL, THEREFORE, BE REQUIRED TO MAKE PAYMENT OUT OF OTHER ASSETS THAT YOU MAY OWN, OR YOU WILL HAVE TO FIND A LENDER WILLING TO LEND YOU THE MONEY. IF YOU REFINANCE THIS LOAN AT MATURITY, YOU MAY HAVE TO PAY SOME OR ALL OF THE CLOSING COSTS NORMALLY ASSOCIATED WITH A NEW LOAN EVEN IF YOU OBTAIN REFINANCING FROM THE SAME LENDER. $1,151,000.00 Date: April 6, 2018 Property Address: 102 Hughes Access Road, Elk City, OK, 73644 FOR VALUE RECEIVED, the undersigned, Banyan Strategies, LLC ("Borrower"), hereby promises to pay to PATCH OF LAND LENDING, LLC, or order ("Lender"), the principal sum of One Million One Hundred Fifty-One Thousand and 00/100 Dollars ($1,151,000.00), together with interest on the unpaid principal balance of this Note, as follows: 1. Interest. Interest on the unpaid principal balance will accrue from the date the proceeds have been distributed to or on behalf of the Borrower (the "Date of Advance") at an annual rate equal to Ten and 50/100 percent (10.50%). Interest shall be computed based on a 360-day year and 30-day months. Interest computed based on a 360-day year is greater than interest computed based on a 365-day year. 2. Payment of Principal and Interest. 2.1 Payments. Interest-only payments shall be due and payable in consecutive monthly installments on the First day of each month beginning on June 1, 2018. Such payments shall be interest-only calculated based on the currently disbursed amount of the loan, and the final monthly payment amount shall continue, subject to additional default rates and late fees, until the entire indebtedness evidenced by this Note and all accrued and unpaid interest and fees are fully paid, with any unpaid principal and interest due and payable on May 1, 2019 (the "Maturity Date"). Payments due under the Note shall be made in U.S. currency. However, if any check or other instrument received by Lender as payment under this Note or Mortgage/Deed of Trust is returned to Lender unpaid, Lender may require that any or all subsequent payments due under this Note and the Mortgage/Deed of Trust be made in one or more of the following forms, as selected by Lender: (a) cash; (b) money order; (c) certified check, bank check, treasurer's check or cashier's check, provided any such check is drawn upon an institution whose deposits are insured by a federal agency, instrumentality, or entity; or (d) Electronic Funds Transfer. 2.2 Balloon Payment. The interest-only payment schedule contained in this loan requires that Borrower make a balloon payment of the lesser of $1,151,000.00 and the unpaid principal balance, in addition to any unpaid interest, costs and fees. This balloon payment is more than double the amount of the regular payments. 2.3 Partial Payments. Payments are deemed received by Lender when received at the location designated in paragraph 11, or at such other location as may be designated by Lender in accordance with the notice provisions in paragraph 11. Lender may return any payment or partial payment if the payment or partial payments are insufficient to bring the Loan current or to satisfy the requirements in paragraph 2.2. Lender may accept any payment or partial payment insufficient to bring the Loan current or release any property secured by any mortgage/deed of trust, without waiver of any rights hereunder or prejudice to its rights to refuse such payment or partial payments in the future, but Lender is not obligated to apply such payments at the time such payments are accepted. Lender may hold such unapplied funds in a non-interest bearing account until Borrower makes payment to bring the Loan current. If Borrower does not do so within a reasonable period of time, Lender shall either apply such funds or return them to Borrower. If not applied earlier, such funds will be applied to the outstanding principal balance under the Note immediately prior to foreclosure or final loan repayment. No offset or claim which Borrower might have now or in the future against Lender shall relieve Borrower from making payments due under this Note and the Mortgage/Deed of Trust or performing the covenants and agreements secured by the Mortgage/ Deed of Trust. 2.4 Order of Application of Payments. Each payment under this Note shall be credited in the following order: (a) costs, fees, charges, and advances paid or incurred by Lender or payable to Lender and interest under any provision of this Note or the Mortgage/Deed of Trust, in such order as Lender, in its sole and absolute discretion, elects, (b) interest payable under the Note, and (c) principal under the Note. 2.5 Delivery of Payments. Payments shall be made to Lender by preauthorized Automated Clearinghouse transactions ("ACH") to an account determined by Lender or by such other reasonable method as Lender directs. 3. Late Charge. Borrower acknowledges that default in the payment of any sum due under this Note will result in losses and additional expenses to Lender in servicing the indebtedness evidenced by this Note, handling such delinquent payments, and meeting its other financial obligations. Borrower further acknowledges that the extent of such loss and additional expenses is extremely difficult and impractical to ascertain. Borrower acknowledges and agrees that, if any payment due under this Note is not received by Lender within ten (10) days when due, a charge of eighteen cents ($0.18) for each dollar ($1.00) that is not paid when due would be a reasonable estimate of expenses so incurred (the "Late Charge"). Without prejudicing or affecting any other rights or remedies of Lender, Borrower shall pay the Late Charge to Lender as liquidated damages to cover expenses incurred in handling such delinquent payment. 4. Default. On (a) Borrower's failure to pay any installment or other sum due under this Note when due and payable (whether by extension, acceleration, or otherwise), (b) an Event of Default (as defined in the Mortgage/Deed of Trust), or (c) any breach of any other promise or obligation in this Note or in any other instrument now or hereafter securing the indebtedness evidenced by this Note, then, and in any such event, Lender may, at its option, declare this Note (including, without limitation, all accrued interest) due and payable immediately regardless of the Maturity Date. Borrower expressly waives notice of the exercise of this option. 5. Prepayment Premium. Borrower may prepay this Note in whole or in part at any time. If the box below is checked, Borrower will be charged a prepayment penalty for prepayment prior to the date specified. Please refer to the Prepayment Penalty Addendum for details: Prepayment Penalty Addendum [ ] 6. Interest on Default. If Borrower is in default under this Note, as that event is contemplated under paragraph 4 of this Note, or defaults under any other clause of any document associated with this Note, then the entire unpaid principal balance shall automatically bear an annual interest rate (instead of the rate specified in paragraph 1) equal to the lesser of (a) Twenty-Four percent (24 %) or (b) the maximum interest rate allowed by law (the "Default Rate"). If the Maturity Date is accelerated pursuant to Paragraph 4, the unpaid principal shall accrue interest at the Default Rate only until the default is cured and the Mortgage/Deed of Trust is reinstated. Borrower acknowledges and agrees that it would be extremely difficult or impractical to fix the actual damages resulting from Borrower's failure to pay the principal, accrued interest and other sums due on the Maturity Date, and therefore Borrower shall pay interest at the Default Rate not as a penalty, but for purposes of defraying the expenses incident to handling the past due principal, accrued interest and other sums due under this Promissory Note. Interest at the Default Rate represents the reasonable estimate of the loss that may be sustained by Lender due to the failure of Borrower to pay the principal, accrued interest and other sums due on the Maturity Date. Interest at the Default Rate shall be payable by Borrower without prejudice to the rights of Lender to collect any other amounts to be paid under this Promissory Note (including, without limitation, late charges pursuant to Paragraph 3, above) or the Mortgage/Deed of Trust. 7. Interest on Interest. If any interest payment under this Note is not paid when due, the unpaid interest shall be added to the principal of this Note, shall become and be treated as principal, and shall thereafter bear like interest. 8. Due-on-Sale. If Borrower sells, conveys, assigns or otherwise transfers (a) all or any part of the Property, (b) any interest in the Property, or (c) any of the ownership interests of Borrower, whether any such sale, conveyance, assignment or other transfer occurs directly or indirectly, voluntarily or involuntarily or by operation of law, without the prior written consent of Lender (which may be withheld in Lender's sole and absolute discretion), then Lender may elect, in its sole and absolute discretion, to accelerate the Maturity Date and declare the entire unpaid principal, accrued interest and other sums due hereunder to be immediately due and payable. 9. Attorney Fees. Borrower agrees to pay the following costs, expenses, and attorney fees (including in-house attorney fees) paid or incurred by Lender, or adjudged by a court: (a) reasonable costs of collection and costs, expenses, and attorney fees paid or incurred in connection with the collection or enforcement of this Note, whether or not suit is filed; (b) reasonable costs, expenses, and attorney fees paid or incurred in connection with representing Lender in any bankruptcy, reorganization, receivership, or other proceedings affecting creditors' rights and involving a claim under this Note; (c) reasonable costs, expenses, and attorney fees incurred to protect the lien of the Mortgage/Deed of Trust; and (d) costs of suit and such sum as the court may adjudge as attorney fees in any action to enforce payment of this Note or any part of it. 10. Waiver. Borrower, endorsers, and all other persons liable or to become liable on this Note waive diligence, presentment, protest and demand, and also notice of protest, demand, nonpayment, dishonor and maturity and consent to any extension of the time or terms of payment hereof, any and all renewals or extensions of the terms hereof, any release of all or any part of the security given for this Promissory Note, any acceptance of additional security of any kind and any release of any party liable under this Promissory Note. Any such renewals or extensions may be made without notice to Borrower. 11. Notice. Any notice required to be provided in this Note shall be given in writing and shall be sent (a) for personal delivery by a delivery service that provides a record of the date of delivery, the individual to whom delivery was made, and the address where delivery was made; (b) by first-class certified United States mail, postage prepaid, return receipt requested; (c) by a nationally recognized overnight courier service, marked for next day business delivery; or (d) facsimile or email (with confirmation of transmission). All notices shall be addressed to the party to whom such notice is to be given at the following addresses: Lender: Patch of Land Lending, LLC 15000 Ventura Blvd #202 Sherman Oaks, CA 91403 Attn: Operations Department Email: [email protected] Borrower: Banyan Strategies, LLC 412 S CARROLL BLVD STE 1000 DENTON, TX 76201-7449 Attn: Tonya Weathers Email: [email protected] or to such other address as a party may designate by written notice to the other. All notices shall be deemed effective on the earliest of (a) actual receipt; (b) rejection of delivery; (c) if sent by certified mail, the third day on which regular United States mail delivery service is provided after the day of mailing or, if sent by overnight delivery service, on the next day on which such service makes next-business-day deliveries after the day of sending. 12. Secured by Mortgage/Deed of Trust. This Note is secured by, among other things, that certain mortgage, deed of trust or other security instrument (the Mortgage/Deed of Trust) of even date herewith made by Borrower, as trustor, for the benefit of Lender, as beneficiary. 13. Forbearance Not a Waiver. If Lender delays in exercising or fails to exercise any of its rights under this Note, that delay or failure shall not constitute a waiver of any Lender rights or of any breach, default, or failure of condition under this Note. No waiver by Lender of any of its rights or of any such breach, default, or failure of condition shall be effective, unless the waiver is expressly stated in a writing signed by Lender. 14. Assignment. This Note inures to and binds the heirs, legal representatives, successors, and assigns of Borrower and Lender; provided, however, that Borrower may not assign this Note or any proceeds of it, or assign or delegate any of its rights or obligations hereunder, without Lender's prior written consent in each instance. Lender in its sole discretion may transfer this Note, and may sell or assign participations or other interests in all or any part of this Note, all without notice to or the consent of Borrower. 15. Governing Law. This Note shall be construed and enforce able according to the laws of the State of Oklahoma for all purposes. 16. Usury. All agreements between Borrower and Lender are expressly limited, so that in no event or contingency, whether because of the advancement of the proceeds of this Note, acceleration of maturity of the unpaid principal balance, or otherwise, shall the amount paid or agreed to be paid to Lender for the use, forbearance, or retention of the money to be advanced under this Note exceed the highest lawful rate permissible under applicable usury laws. If, under any circumstances, fulfillment of any provision of this Note or the Mortgage/Deed of Trust securing this Note or any other agreement pertaining to this Note, after timely performance of such provision is due, shall involve exceeding the limit of validity prescribed by law that a court of competent jurisdiction deems applicable, then, ipso facto, the obligations to be fulfilled shall be reduced to the limit of such validity. If, under any circumstances, Lender shall ever receive as interest an amount that exceeds the highest lawful rate, the amount that would be excessive interest shall be applied to reduce the unpaid principal balance under this Note and not to pay interest, or, if such excessive interest exceeds the unpaid principal balance under this Note, such excess shall be refunded to Borrower. This provision shall control every other provision of all agreements between Borrower and Lender. 17. Time Is of the Essence. Time is of the essence with respect to all obligations of Borrower under this Note. 18. Cross-Default. Any default under the terms of any loan agreement, promissory note, deed of trust, mortgage, lease, conditional sale contract or other agreement, document or instrument evidencing, governing or securing any indebtedness owing by Borrower or any Affiliate of Borrower to Lender or any Affiliate of Lender; shall, at Lender's option, constitute a default under this Note. The following definitions shall apply to this Section: "Affiliate" means, with respect to any Person, any other Person that is directly or indirectly Controlling, Controlled by or under common Control with, such Person. "Control" and derivative terms means the possession, directly or indirectly, and acting either alone or together with others, of the power or authority to direct or cause the direction of the management, material policies, material business decisions or the affairs of a Person, whether through the ownership of equity securities or interests, by contract or other means. "Person" means any natural person, business, corporation, company, and or association, limited liability company, partnership, limited partnership, limited liability partnership, joint venture, business enterprise, trust, government authority or other legal entity. BORROWER'S INITIALS: JH 19. WAIVER OF JURY TRIAL. LENDER AND BORROWER EACH HEREBY VOLUNTARILY, KNOWINGLY, IRREVOCABLY, AND UNCONDITIONALLY WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED ON, ARISING FROM, OR RELATED TO THIS NOTE OR THE TRANSACTIONS CONTEMPLATED BY THIS NOTE, IN ANY ACTION, PROCEEDING, OR OTHER LITIGATION OF ANY TYPE BROUGHT BY EITHER PARTY AGAINST THE OTHER, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. BORROWER AND LENDER AGREE THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM, OR OTHER PROCEEDING THAT SEES, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS NOTE. THIS WAIVER SHALL APPLY TO ANY FUTURE AMENDMENTS, RENEWALS, SUPPLEMENTS, OR MODIFICATIONS TO THIS NOTE. BORROWER'S INITIALS: JH 20. Representation on Use of Proceeds. Borrower represents and warrants to Lender that the proceeds of this Note will be used solely for business, commercial investment, or similar purposes, and that no portion of it will be used for personal, family, or household purposes. 21. Assignment. Holder may, at its sole option, assign this Promissory Note and/or designate any other person or entity as the holder hereof. 22. No Modifications or Amendments; No Waiver. Except as specified herein, this Promissory Note may not be amended, modified or changed, nor shall any waiver of the provisions hereof be effective, except only by an instrument in writing signed by the party against whom enforcement of any waiver, amendment, change, modification or discharge is sought. Additionally, a waiver of any provision in one event shall not be construed as a waiver of any other provision at any time, as a continuing waiver, or as a waiver of such provision on a subsequent event. 23. Severability. Any provision of this Promissory Note which shall be held by a court of competent jurisdiction to be invalid, void or illegal shall in no way affect, impair or invalidate any other provision or term hereof, and such other provisions or terms shall remain in full force and effect. 24. Successors and Assigns. Whenever used herein, the terms "Lender" and "Borrower" shall be deemed to include their respective heirs, personal representatives, successors and assigns. 25. Cooperation. Borrower acknowledges that Lender and its successors and assigns may (a) sell, transfer, or assign the Mortgage/Deed of Trust, this Note, and other Loan Documents (as defined in the Mortgage/Deed of Trust) to one or more investors as a whole loan, in a rated or unrated public offering or private placement; (b) participate the Loan secured by this Mortgage/Deed of Trust to one or more investors in a rated or unrated public offering or private placement; (c) deposit this Mortgage/Deed of Trust, the Note, and other Loan Documents with a trust, which trust may sell certificates to investors evidencing an ownership interest in the trust assets in a rated or unrated public offering or private placement; or (d) otherwise sell the Loan or interest therein to investors in a rated or unrated public offering or private placement. (The transactions referred to in clauses (a)-(d) are hereinafter referred to as "Secondary Market Transactions.") Borrower shall, at Lender's expense, cooperate in good faith with Lender in effecting any such Secondary Market Transaction and shall cooperate in good faith to implement all requirements reasonably imposed by the participants involved in any Secondary Market Transaction (including, without limitation, a Rating Agency and/or an institutional purchaser, participant, or investor) including, without limitation, all structural or other changes to the Loan, modifications to any documents evidencing or securing the Loan, delivery of opinions of counsel acceptable to the Rating Agency or such other purchasers, participants or investors, and addressing such matters as the Rating Agency or such other purchasers, participants, or investors may require; provided, however, that the Borrower shall not be required to modify any documents evidencing or securing the Loan that would modify (i) the interest rate payable under the Note, (ii) the stated maturity of the Note, (iii) the amortization of principal of the Note, or (iv) any other material terms or covenants of the Loan. Borrower shall provide such information and documents relating to Borrower, the Mortgaged Property, the Leases (as such terms are defined in the Mortgage/Deed of Trust), and any lessees as Lender or the Rating Agency or such other purchasers, participants, or investors may reasonably request in connection with a Secondary Market Transaction. Lender shall have the right to provide to the Rating Agency or prospective purchasers, participants, or investors any information in its possession including, without limitation, financial statements relating to Borrower, the Mortgaged Property, and any lessee. Borrower acknowledges that certain information regarding the Loan and the parties thereto and the Mortgaged Property may be included in a private placement memorandum, prospectus, or other disclosure documents. 26. Full Recourse Personal Liability. Borrower shall have full recourse personal liability under this Note, the Mortgage/Deed of Trust and all other Loan Documents for the repayment of the Indebtedness (as defined in the Mortgage/Deed of Trust) and for the performance of any and all other obligations of Borrower under this Note, the Mortgage/Deed of Trust and all other Loan Documents executed in connection with the Loan. 27. Addendums. Any Addendum checked below and executed by Borrower shall be incorporated herein as through fully set forth in this Note: [check box(es) as applicable]: [ ] Prepayment Penalty Addendum [X ] Interest Reserve Account Addendum [X ] Construction Reserve Addendum [X ] Conditional Right to Extension Addendum 28. Pledge and Grant of Security Interest. To secure the due and punctual payment and performance of all Obligations due under this Note and as such terms are defined in the Mortgage/Deed of Trust, Borrower hereby pledges, assigns, transfers, and delivers to Lender and hereby grants Lender a security interest in and to all of Borrower's right, title and interest in and to any amounts retained by Lender or Lender's agents including but not limited to any Construction Holdbacks, Interest Reserves, and Insurance Holdbacks (collectively, "Lender Holdbacks"). The Lender Holdbacks shall be subject to the sole and absolute control of Lender during the term of this Note. Borrower shall execute such documents and take such other action as may be requested by Lender to ensure in Lender such sole and absolute control in the Lender Holdbacks. Borrower shall have no right to the Lender Holdbacks except as provided in this Note. Upon the maturity of the Note, any remaining funds in the Lender Holdbacks shall be credited against amounts due under the Note, in such order as Lender may determine. Upon the occurrence of an Event of Default hereunder, Lender shall have (i) the right to withdraw all or any portion of the Lender Holdbacks and apply the same against the amounts owing under this Note, or any other Loan Documents in such order of priority as Lender may determine; (ii) all rights and remedies of a secured party under the Uniform Commercial Code; or (iii) the right to exercise all remedies under the Loan Documents or otherwise available in law or in equity. 29. Confession of Judgement. (Applicable to indebtedness secured by property in each of the following states) a) MARYLAND: Warrant of Attorney to Confess Judgment. If payment of the indebtedness evidenced by this Note, or any part thereof, shall not be made when due or at maturity, by acceleration or otherwise, Borrower hereby irrevocably authorizes and empowers any attorney-at-law, including an attorney hired by Lender, to appear in any court of record or before any Clerk thereof for Borrower and to confess judgment against Borrower for the unpaid amount of the Note as evidenced by an affidavit signed by Lender, together with costs of such proceeding and reasonable attorneys' fees of fifteen (15) percent of the unpaid principal balance and accrued and unpaid interest due hereunder. Borrower waives and releases all errors and all rights of exemption, appeal, stay of execution, inquisition and extension upon any levy or real estate or personal property to which Borrower may otherwise be entitled under the laws of any State or possession of the United States now in force or which may hereafter be passed. If this Note is referred to any attorney for collection, and payment is obtained without the entry of a judgment, then Borrower shall pay to Lender all reasonable attorneys' fees incurred. If a copy of this Note, verified by an affidavit, shall have been filed in the proceeding, it will not be necessary to file the original as a warrant of attorney. No single exercise of the foregoing warrant and power to confess judgment shall be deemed to exhaust the power, whether or not any such exercise shall be held by any court to be invalid, voidable or void; but the power shall continue undiminished and may be exercised from time to time as Lender may elect until all amounts owing on this Note have been paid in full. Borrower waives any conflict of interest that an attorney hired by Lender may have in acting on behalf of Borrower in confessing judgment against Borrower while such attorney is retained by Lender. Borrower expressly consents to such confessing attorney acting for Borrower in confessing judgment, and consents to Lender paying such confessing attorney a legal fee or allowing such attorney’s fees to be paid from any proceeds of collection of the Note. If Borrower is jointly and severally liable under the Loan Documents, then this warrant of attorney to confess judgment is a joint and several warrant of attorney. b) ILLINOIS: Warrant of Attorney to Confess Judgment. Borrower irrevocably authorizes and empowers any attorney-at-law, including an attorney hired by Lender, to appear in any court of record for Borrower, at any time from time to time after payment is due, whether by acceleration of otherwise, and to confess judgment against Borrower for the unpaid amount of the Note as evidenced by an affidavit signed by Lender, together with costs of such proceeding and reasonable attorneys’ fees. Borrower waives and releases all errors and all rights of appeal. Borrower waives the right to any stay of execution and the benefit of all exemption laws now or hereafter in effect, hereby ratifying and confirming all that said attorney may do by virtue of this warrant. If a copy of this Note, verified by an affidavit, shall have been filed in the proceeding, it will not be necessary to file the original as a warrant of attorney. No single exercise of the foregoing warrant and power to confess judgment shall be deemed to exhaust the power, whether or not any such exercise shall be held by any court to be invalid, voidable or void; but the power shall continue undiminished and may be exercised from time to time as Lender may elect until all amounts owing on this Note have been paid in full. Borrower waives any conflict of interest that an attorney hired by Lender may have in acting on behalf of Borrower in confessing judgment against Borrower while such attorney is retained by Lender. Borrower expressly consents to such confessing attorney acting for Borrower in confessing judgment, and consents to Lender paying such confessing attorney a legal fee or allowing such attorney’s fees to be paid from any proceeds of collection of the Note. If Borrower is jointly and severally liable under the Loan Documents, then this warrant of attorney to confess judgment is a joint and several warrant of attorney. c) OHIO: Warrant of Attorney to Confess Judgment. Borrower irrevocably authorizes and empowers any attorney-at-law, including an attorney hired by Lender, to appear in any court of record and to confess judgment against Borrower for the unpaid amount of the Note as evidenced by an affidavit signed by an officer of Lender setting forth the amount then due, including attorneys’ fees plus costs of suit, and to release all errors and waive all rights of appeal. If a copy of this Note, verified by an affidavit, shall have been filed in the proceeding, it will not be necessary to file the original as a warrant of attorney. Borrower waives the right to any stay of execution and the benefit of all exemption laws now or hereafter in effect. No single exercise of the foregoing warrant and power to confess judgment shall be deemed to exhaust the power, whether or not any such exercise shall be held by any court to be invalid, voidable or void; but the power shall continue undiminished and may be exercised from time to time as Lender may elect until all amounts owing on this Note have been paid in full. Borrower waives any conflict of interest that an attorney hired by Lender may have in acting on behalf of Borrower in confessing judgment against Borrower while such attorney is retained by Lender. Borrower expressly consents to such confessing attorney acting for Borrower in confessing judgment, and consents to Lender paying such confessing attorney a legal fee or allowing such attorney’s fees to be paid from any proceeds of collection of the Note. If Borrower is jointly and severally liable under the Loan Documents, then this warrant of attorney to confess judgment is a joint and several warrant of attorney. d) NEW JERSEY. Cognovit Provisions. Borrower hereby irrevocably authorizes any Attorney-at-Law to appear in any Court of record situated in the county where Borrower then resides, or in the county where either one or more Borrowers signed this warrant after this Note becomes due, with or without declaration filed, and each and all waive the issuance and service of process, enter appearance and confess or enter a judgment or a series of judgments against Borrower(s) in favor of the Holder of this Note, for the amount then appearing due, together with all costs of suit, reasonable attorney's fees for collection and all legal and litigation expenses, and thereupon to release all errors and waive all claims, rights of appeal and stay of execution and for so doing, this Note or a copy thereof verified by Affidavit, shall be a sufficient warrant. NOTICE: FOR THIS NOTICE "YOU" MEANS THE BORROWER AND "CREDITOR" AND "HIS" MEANS LENDER. WARNING – BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT TRIAL. IF YOU DO NOT PAY ON TIME A COURT JUDGMENT MAY BE TAKEN AGAINST YOU WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE USED TO COLLECT FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE CREDITOR WHETHER FOR RETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH THE AGREEMENT, OR OTHER CAUSE. BORROWER: Banyan Strategies, LLC a Texas Limited Liability Company By: [signature] Name: Tonya Weathers Title: Member ADDENDUM TO PROMISSORY NOTE (Conditional right to Extension Addendum) NOTE 9 THIS ADDENDUM TO PROMISSORY NOTE is made April 6, 2018 and is incorporated into and shall be deemed to amend and supplement the Promissory Note made by the undersigned ("Borrower") to Patch of Land Lending LLC, a Delaware limited liability company ("Lender") and dated the same date as this Addendum (the "Note"). ADDITIONAL COVENANTS. In addition to the covenants and agreements made in the Note, Borrower and Lender further covenant and agree as follows: Conditional Right to Extension of Maturity Date. A. Borrower shall have the right to request one extension of the Maturity Date of the Note in accordance with the Extension and Fee Schedule in this Exhibit A, if and only if Lender, in its sole and absolute discretion, consents to such extension and all of the following conditions are met: 1. Borrower delivers to Lender a written request for an extension no later than forty-five (45) days prior to the Maturity Date specified in the Note; 2. Borrower has made all of the payments due under the Note on or before the date they were due; 3. Borrower has complied with all of the covenants of the Note, the Mortgage/Deed of Trust and all other documents executed by Borrower in connection with the Loan; 4. Borrower delivers to Lender written confirmation that any and all property taxes and assessments due and owing on the Property have been paid; 5. Borrower delivers to Lender documentation confirming that all insurance policies required by Lender, inclusive of but not limited to, hazard and general liability insurance policies are in effect for the time period covered by the extension; and that Lender is named as mortgagee and additional loss payee on all polices; 6. Borrower and any guarantor's credit rating has not materially changed since the execution of the Note; 7. If requested, Borrower provides to Lender updated financial statements that indicate that there is no material change in the financial condition of Borrower or any guarantor; 8. Lender determines, in its sole and absolute discretion, that there has not been a material negative change to the physical condition or value of the Property; 9. Borrower has agreed to pay the costs associated with the loan extension, inclusive of the fees charged for the drafting of the recordable extension agreement, an extension endorsement to the Lender’s Policy of Title Insurance; the fees charged by the County Recorder to record the extension agreement; notary fees; and all escrow and title related fees inclusive of messenger and handling fees; 10. Lender confirms that Borrower has not permitted any further encumbrances or liens to be recorded against the Property; and, 11. Any construction contemplated on the Property is completed in a timely manner and in accordance with the construction schedule, and all contractors, subcontractors, materialmen and others who perform work on the Property are paid in accordance with the terms of the agreements. B. Time of Extension. If Borrower satisfies each condition set forth above, and Lender consents to such extension, Borrower shall have the right to one extension of the Maturity Date selected from the Extension and Fee Schedule in this Exhibit A, not to exceed six (6) months (the "Extension"). C. Extension Fee. As consideration to Lender for granting the Extension, Borrower shall pay to Lender in good U.S. funds a percentage of the outstanding principal balance of the Note as an extension fee (the "Extension Fee"). The Extension Fee shall be calculated in accordance with the Extension and Fee Schedule in this Exhibit A and is due and payable either with the written request for extension described in Subsection A.1 above. [REMAINDER OF PAGE LEFT INTENTIONALLY BLANK] By signing below, Borrower accepts and agrees to the terms and covenants contained in this Addendum to Promissory Note. BORROWER: Banyan Strategies, LLC a Texas Limited Liability Company By: [signature] Name: Tonya Weathers Title: Member Exhibit A General Extension and Fee Schedule The following table outlines Lender’s general Extension Fees. The Extension Fees based on Borrower’s ability to satisfy all conditions listed in this Section A of the addendum and are calculated on a per-month basis for month-to-month requests and a total fee amount for three (3) and six (6) month requests. A discount is provided for all extensions that are paid in full at the time of approval. <table> <tr> <th>Extension Period</th> <th>If Paid @ Extension</th> <th>If Paid @ Payoff</th> </tr> <tr> <td>Month to Month per month &lt; 3 months</td> <td>0.50%</td> <td>1.00%</td> </tr> <tr> <td>Month to Month per month &gt; 3 months</td> <td>1.00%</td> <td>2.00%</td> </tr> <tr> <td>Initial 3 months</td> <td>1.00%</td> <td>2.00%</td> </tr> <tr> <td>Additional 3 months</td> <td>1.50%</td> <td>3.00%</td> </tr> <tr> <td>6 Months</td> <td>2.00%</td> <td>4.00%</td> </tr> </table> Borrower understands that upon Lender’s approval of an extension request prior to the expiration of the original maturity date and immediately upon the expiration of each additional month that the principal amount remains outstanding, an Extension Fee in accordance with the Extension Period selected will automatically be added to Borrower’s total amount of outstanding debt. Borrower further understands that no credit will be applied to its account where Borrower repays all amounts owed and outstanding under the Loan Documents prior to the expiration of the Extension Period. By signing this Conditional Right to Extension addendum to the Promissory Note, Borrower agrees to pay all additional fees incurred with any extension until the loan and all associated costs and fees are repaid in full. ADDENDUM TO PROMISSORY NOTE (Construction Reserve Addendum) THIS ADDENDUM TO PROMISSORY NOTE is made April 6, 2018 and is incorporated into and shall be deemed to amend and supplement the Promissory Note made by the undersigned ("Borrower") to Patch of Land Lending, LLC ("Lender") and dated the same date as this Addendum (the "Note"). ADDITIONAL COVENANTS. In addition to the covenants and agreements made in the Note, Borrower and Lender further covenant and agree as follows: 1. Construction Reserve. Out of the Loan proceeds, Lender will hold in reserve an amount equal to Two Hundred Twenty-One Thousand Five Hundred and 00/100 Dollars ($221,500.00) (the "Construction Reserve"). Borrower shall pay all costs associated with administering the Construction Reserve, including the retention of a funds control agent, which may be deducted from the Construction Reserve if any funds are available. Lender will hold the Construction Reserve to use to pay obligations in Lender's discretion. Borrower shall have the right to request disbursements monthly, subject to approval by third party vendors and at Lender's discretion. Borrower may request no more than Two (2) individual disbursements. If Borrower requests any additional draws in excess of this amount, Lender or its agents shall charge a minimum disbursement processing fee for each disbursement of Three Hundred dollars ($300.00) for standard residential loans, Four Hundred dollars ($400.00) for residential ground-up construction loans and Six Hundred dollars ($600.00) for commercial loans (each, respectively, the "Draw Fee"). Disbursements shall be paid directly to vendors, unless deemed impractical in Lender's sole discretion. If at the time of final repayment Borrower has not requested all available draws as set forth above, the Draw Fee multiplied by the number of remaining, unused draws will be credited on the Note's final payoff request or demand statement. Borrower understands, acknowledges and agrees that Lender will not disburse funds in excess of the Construction Reserve amount. Borrower shall be solely responsible for supplying additional funds in excess of the Construction Reserve. Borrower is also solely responsible for supplying funds for unexpected expenses or costs incurred. Borrower agrees not to make any changes to the Construction Budget attached as Exhibit A hereto (the "Construction Budget"), without Lender's prior written consent. In its sole discretion, Lender may use the Construction Reserve to protect its Deed of Trust or to pay down the principal amount owed on the Loan. 2. Conditions Precedent to Advance. Borrower acknowledges that Lender shall have no requirement to hold the Construction Reserve in a separated segregated account. Notwithstanding anything to the contrary contained herein, Lender's obligation to make any Advance of the Construction Reserve to the Borrower, shall be subject to (i), that all of the following conditions are satisfied at the time of the disbursement, each in form, manner and substance satisfactory to lender and its counsel, and after giving effect thereto: (A) no Event of Default and no event which with the passage of time and/or the giving of notice would constitute a default hereunder or under any other Loan Documents shall have occurred, (B) each representation and warranty set forth in the Loan Documents shall continue to be true and correct as if then made, (C) Borrower's continuing satisfaction of all of the below conditions, (D) proof that Borrower has satisfied all of the closing conditions required by Lender in connection with the Property loan being made by Lender. (a) Receipt of evidence satisfactory to Lender (such as will-serve letters from appropriate governmental entities) of the availability to the Property of all public utility services and facilities when needed for construction and for use, occupancy, and operation of the Improvements. (b) Receipt of evidence satisfactory to Lender that Borrower has complied with all covenants, conditions, restrictions, and reservations affecting the Property, that the Property is duly and validly zoned for the intended use, and that Borrower has obtained all zoning, subdivision, and environmental approvals, permits, and maps required to be obtained in order to construct the Improvements. (c) Receipt and approval by Lender of all building and other permits required for construction of the Improvements (as such term is defined in the Deed of Trust*) in accordance with the plans approved by the Planning Department, Building and Safety Department or such comparable department of the local government authority ("Plans"). (d) Receipt by Lender of the performance and the material and labor bonds, if any. (e) Receipt and approval by Lender of a site plan showing the location of any existing Improvements, the proposed location of all Improvements to be constructed in accordance with the Plans, and the location of all parking areas, and listing the number of parking spaces provided by such parking areas and the number of parking spaces required by applicable zoning ordinances and certified by any necessary design professional or other licensed architect to be true and correct regarding the Plans. (f) Any additional subcontracts in excess of $5,000.00 not previously submitted to Lender must be submitted to and approved by Lender. (g) Receipt by Lender of any other documents and assurances as it may reasonably request, including but not limited to all vendor invoices establishing work performed. (h) Evidence satisfactory to Lender that the Property is not located in an area identified as a flood-prone area as defined by the U.S. Department of Housing and Urban Development pursuant to the Flood Disaster Protection Act of 1973. (i) Lender reserves the right to inspect the property at any time provided Lender or Lender's agent provides at least twenty-four hours notice to Borrower prior to an inspection to confirm the workmanship and quality of the work performed prior to any disbursements. Borrower shall be responsible for all inspection fees by Lender or Lender's agents. (j) Borrower shall be in full compliance and shall not be in default under this Note or under any of the loan documents, provided, however, that Lender may, in its discretion, elect to make advances despite the existence of a default, and any advance so made shall be deemed to have been made under this Agreement and shall be secured by the loan documents. (k) Neither the improvements, to the extent then constructed, nor all or any part of the Property shall have been materially damaged, destroyed, condemned, or threatened with condemnation. (l) No order or notice shall have been made by, or received from, any governmental agency having jurisdiction stating that the work of construction is or will be in violation of any law, ordinance, code, or regulation affecting the Property. (m) Before each disbursement, Lender may, if it determines that such endorsement is necessary to protect its first lien, receive a current CLTA Form Endorsement No. 122 (Continuation Endorsement or its equivalent), and such other endorsements to its title insurance policy as Lender may, in its reasonable discretion, determine are necessary. All such endorsements must be satisfactory to Lender. (n) Any additional subcontracts not previously approved by Lender must be submitted to and approved by Lender. (o) Written approval by an inspector of the applicable government entity, if an inspection is required under the Disbursement Schedule. (p) Written approval by Lender at Lender's reasonable discretion for any Work Item(s) described in the Disbursement Schedule which do not require an inspection by a government entity. 3. _Pledge and Grant of Security Interest._ To secure the due and punctual payment and performance of all obligations due under the Note, Borrower hereby pledges, assigns, transfers, and delivers to Lender and hereby grants Lender a security interest in and to all of Borrower's right, title and interest in and to the Construction Reserve. The Construction Reserve shall be subject to the sole and absolute control of Lender during the term of this Agreement. Borrower shall execute such documents and take such other action as may be requested by Lender to ensure in Lender such sole and absolute control. Borrower shall have no right to the Construction Reserve except as provided in this Agreement. Upon the maturity of the Note, any remaining funds in the Construction Reserve shall be credited against amounts due under the Note (subject to any prepayment premium, if applicable), in such order as Lender may determine. Upon the occurrence of an Event of Default hereunder, Lender shall have (i) the rights enumerated above; (ii) all rights and remedies of a secured party under the Uniform Commercial Code; or (iii) the right to exercise all remedies under the Loan Documents or otherwise available in law or in equity. By signing below, Borrower accepts and agrees to the terms and covenants contained in this Addendum to Promissory Note. BORROWER: Banyan Strategies, LLC a Texas Limited Liability Company By: [Signature] Name: Tonya Weathers Title: Member GUARANTOR: [Signature] Name: Tonya Weathers, AN INDIVIDUAL [Signature] Name: James Peterson, AN INDIVIDUAL "EXHIBIT A" CONSTRUCTION BUDGET ADDENDUM TO PROMISSORY NOTE (Interest Reserve Addendum) THIS ADDENDUM TO PROMISSORY NOTE is made this April 6, 2018, and is incorporated into and shall be deemed to amend and supplement the Promissory Note made by the undersigned ("Borrower") to Patch of Land Lending, LLC ("Lender") and dated the same date as this Addendum (the "Note"). ADDITIONAL COVENANTS. In addition to the covenants and agreements made in the Note, Borrower and Lender further covenant and agree as follows: Interest Reserve. Out of the Loan proceeds, Lender will hold in reserve the sum of Eighty Thousand and 00/100 ($80,000.00) as an interest reserve (the "Interest Reserve"). The Interest Reserve shall be deposited in a non-interest bearing account. Lender will use the Interest Reserve to pay the monthly interest-only payments due for the period from June 1, 2018 or other delinquent interest amounts owed until the entire amount of the Interest Reserve has been exhausted. Thereafter, Borrower shall pay the monthly installment payments directly to Lender, or to Lender's servicing agent, in accordance with the requirements of Section 2 of the Note. Should Lender be required to utilize the Interest Reserve for anything other than the payment of interest payments as set forth herein, Borrower shall be required to replenish funds in the Interest Reserve. The failure to replenish the Interest Reserve upon five (5) business days written notice by Lender to Borrower shall be an Event of Default under the Note and Deed of Trust/Mortgage. Upon an Event of Default, Lender may use the Interest Reserve to protect its Deed of Trust/Mortgage, by: (i) making interest payments hereunder, (ii) making protective advances under the Deed of Trust/Mortgage, or (iii) paying down the principal amount owed on the Loan, in Lender's sole and absolute discretion. By signing below, Borrower accepts and agrees to the terms and covenants contained in this Addendum to Promissory Note. BORROWER: Banyan Strategies, LLC a Texas Limited Liability Company [Signature] By: Tonya Weathers Its: Member GUARANTOR: Tonya Weathers Name: Tonya Weathers, AN INDIVIDUAL James Peterson Name: James Peterson, AN INDIVIDUAL GUARANTY (Payment) THIS GUARANTY, made and entered into as of this April 6, 2018, by the undersigned ("Guarantor"), to and for the benefit of PATCH OF LAND LENDING, LLC, a limited liability company formed under the laws of the State of Delaware, its endorsees, successors and assigns ("Lender"). RECITALS A. Lender has conditionally agreed to make a Loan to Banyan Strategies, LLC, a(n) Texas Limited Liability Company ("Borrower") in the original principal amount of One Million One Hundred Fifty-One Thousand and 00/100 Dollars ($1,151,000.00) (the "Loan"). B. The Loan is evidenced by, among other things, that certain Promissory Note, dated of even date herewith, made by Borrower to, and in favor of, the Lender in the original principal amount of the Loan (as the same may be amended, modified, restated or replaced from time to time, the "Note"). C. The Note is secured by, among other things, that certain Mortgage or Deed of Trust, dated of even date herewith, as made by Borrower to, and in favor of, the Lender (as the same may be amended, modified, restated or replaced from time to time, the "Security Instrument") encumbering the real property legally described therein (the "Property"). For purposes of this Guaranty, the Note, the Security Instrument, and any and all other documents now, or hereafter, executed in connection herewith or therewith, are hereinafter sometimes collectively referred to as the "Loan Documents." D. The proceeds of the Loan are to be used solely for the acquisition, development, re-development and/or rehabilitation of the Property (the "Project") strictly in accordance with those certain plans and specifications, construction agreement and related documents and agreements (as applicable, individually and collectively, the "Project Agreements"), copies of which have been previously delivered to, and approved by, Lender pursuant to, and as a pre-condition to the extension of, the Loan. E. Guarantor has a substantial economic interest in Borrower and/or will otherwise directly and substantially benefit from Lender making the Loan to Borrower. F. As a condition to making the Loan to Borrower, Lender requires that Guarantor execute and deliver this Guaranty. AGREEMENT NOW, THEREFORE, in consideration of the above recitals and of the Lender agreeing to make the Loan to Borrower, and other valuable consideration the receipt and sufficiency of which is acknowledged, Guarantor hereby represents, warrants, covenants and agrees for the benefit of Lender as follows: 1. Incorporation. Each of the foregoing recitals to this Agreement are true and correct, each are to be incorporated herein as an integral part hereof, and each shall be considered as substantive and not precatory language. The Note, Security Instrument, and the other Loan Documents are hereby made a part of this Guaranty by reference thereto with the same force and effect as if fully set forth herein and, to the best of Guarantor's knowledge, all representations and warranties made by the Borrower in the Loan Documents are true and correct. 2. Defined Terms. Capitalized terms used and not specifically defined herein have the meanings given to such terms in the Security Instrument. 3. Guaranteed Obligations. Guarantor hereby irrevocably, unconditionally and absolutely, guarantees to Lender the due and prompt payment, and not just the collectability, of all amounts and the due and prompt performance by Borrower of all obligations for which the Borrower has recourse liability to Lender under the terms of the Note (the payment and performance of the items set forth in this Section being hereinafter collectively referred to as the "Indebtedness Guaranteed"). Without limiting the generality of the forgoing, the term Indebtedness Guaranteed shall mean and include: a. the repayment of the Loan and all interest thereon; b. the prompt and complete payment and performance of the obligations of Borrower to construct and complete the Project in substantial accordance with the all requirements of the Project Agreements, free and clear of all material defects and liens and in material compliance with all laws, rules, permits, requirements and regulations of any governmental authority and in accordance with the approved budget; c. the payment and performance (as applicable) of all other obligations of Borrower under the Loan Documents; d. the payment of all other Indebtedness (as such term is used and defined in the Security Instrument); and e. the payment of all costs and expenses, including reasonable fees and out-of-pocket expenses of attorneys and expert witnesses, incurred by Lender in enforcing its rights under this Guaranty. 4. Survival of Guaranteed Obligations. The obligations of Guarantor under this Guaranty shall survive any Foreclosure Event, and any recorded release or reconveyance of the Security Instrument or any release of any other security for any of the Indebtedness. 5. Guaranty of Payment; Community Property. Guarantor's obligations under this Guaranty constitute a present and unconditional guaranty of payment and not merely a guaranty of collection. If Guarantor (or any Guarantor, if more than one) is a married person, and the state of residence of Guarantor or Guarantor's spouse is a community property jurisdiction, Guarantor (or each such married Guarantor, if more than one) agrees that Lender may satisfy Guarantor's obligations under this Guaranty to the extent of all Guarantor's separate property and Guarantor's interest in any community property. 6. Obligations Unsecured; Cross-Default. The obligations of Guarantor under this Guaranty shall not be secured by the Security Instrument or the other Loan Documents. However, a default under this Guaranty shall be an Event of Default under the Note, the Security Instrument and the other Loan Documents, and a default under this Guaranty shall entitle Lender to be able to exercise all of its rights and remedies thereunder. 7. Continuing Guaranty. The obligations of Guarantor under this Guaranty shall be unconditional irrespective of the genuineness, validity, regularity or enforceability of any provision of this Guaranty, the Note, the Security Instrument or any other Loan Document. Guarantor agrees that performance of the obligations hereunder shall be a primary obligation, shall not be subject to any counterclaim, set-off, recoupment, abatement, deferment or defense based upon any claim that Guarantor may have against Lender, Borrower, any other guarantor of the obligations hereunder or any other person or entity, and shall remain in full force and effect without regard to, and shall not be released, discharged or affected in any way by any circumstance or condition (whether or not Guarantor shall have any knowledge thereof), including: a. any furnishing, exchange, substitution or release of any collateral securing repayment of the Loan, or any failure to perfect any lien in such collateral; b. any failure, omission or delay on the part of Borrower, Guarantor, any other guarantor of the obligations hereunder or Lender to conform or comply with any term of any of the Loan Documents or failure of Lender to give notice of any Event of Default; c. any action or inaction by Lender under or in respect of any of the Loan Documents, any failure, lack of diligence, omission or delay on the part of Lender to perfect, enforce, assert or exercise any lien, security interest, right, power or remedy conferred upon it in any of the Loan Documents, or any other action or inaction on the part of Lender; d. any voluntary or involuntary bankruptcy, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, receivership, liquidation, marshaling of assets and liabilities or similar events or proceedings with respect to Guarantor or any other guarantor of the obligations hereunder, or any of their respective property or creditors or any action taken by any trustee or receiver or by any court in such proceeding; e. any merger or consolidation of Borrower into or with any entity or any sale, lease or transfer of any asset of Borrower, Guarantor or any other guarantor of the obligations hereunder to any other Person; f. any change in the ownership of Borrower or any change in the relationship between Borrower, Guarantor or any other guarantor of the obligations hereunder, or any termination of such relationship; g. any release or discharge by operation of law of Borrower, Guarantor or any other guarantor of the obligations hereunder, or any obligation or agreement contained in any of the Loan Documents; or h. any other occurrence, circumstance, happening or event, whether similar or dissimilar to the foregoing, and whether seen or unforeseen, which otherwise might constitute a legal or equitable defense or discharge of the liabilities of a guarantor or surety or which otherwise might limit recourse against Borrower or Guarantor to the fullest extent permitted by law. 8. Guarantor Waivers. Guarantor hereby irrevocably waives: a. the benefit of all principles or provisions of law, statutory or otherwise, which are or might be in conflict with the terms of this Guaranty (and agrees that Guarantor's obligations shall not be affected by any circumstances, whether or not referred to in this Guaranty, which might otherwise constitute a legal or equitable discharge of a surety or a guarantor); b. the benefits of any right of discharge under any and all statutes or other laws relating to guarantors or sureties and any other rights of sureties and guarantors; c. diligence in collecting the Indebtedness, presentment, demand for payment, protest and all notices with respect to the Loan Documents and this Guaranty which may be required by statute, rule of law or otherwise to preserve Lender's rights against Guarantor under this Guaranty, including notice of acceptance, notice of any amendment of the Loan Documents, notice of the occurrence of any Event of Default, notice of intent to accelerate, notice of acceleration, notice of dishonor, notice of foreclosure, notice of protest and notice of the incurring by Borrower of any obligation or indebtedness; and d. all rights to require Lender to: i. proceed against or exhaust any collateral held by Lender to secure the repayment of the Indebtedness; ii. proceed against or pursue any remedy it may now or hereafter have against Borrower or any guarantor, or, if Borrower or any guarantor is a partnership, any general partner of Borrower or general partner of any guarantor; or iii. demand or require collateral security from Borrower, any other guarantor or any other Person as provided by applicable law or otherwise. e. To the extent not addressed elsewhere by this Guaranty, Guarantor expressly waives any and all benefits, rights and/or defenses which might otherwise be available to Guarantor under the following sections of the California Civil Code: Section 2809 (the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal), Section 2810 (a surety is not liable if, for any reason other than the mere personal disability of the principal, there is no liability upon the part of the principal at the time of execution of the contract, or the liability of the principal thereafter ceases), Section 2819 (a surety is exonerated if the creditor alters the original obligation of the principal without the consent of the surety), Section 2822 (a surety's right to have the principal designate the portion of any obligation to be satisfied by the surety in the event that the principal provides partial satisfaction of such obligation), Section 2845 (a surety is exonerated to the extent that the creditor fails to proceed against the principal, or to pursue any other remedy in the creditor's power which the surety cannot pursue and which would lighten the surety's burden), Section 2846 (a surety may compel the principal to perform the obligation when due), Section 2847 (if a surety satisfies the principal obligation, or any part thereof, the principal is obligated to reimburse the surety for the amounts paid by the surety), Section 2850 (whenever the property of a surety is hypothecated with property of the principal, the surety is entitled to have the property of the principal first applied to the discharge of the obligation), Section 2899 (where one has a lien upon several things, and other persons have subordinate liens upon, or interests in, some but not all of the same things, the person having the prior lien, if he can do so without risk of loss to himself, or of injustice to other persons, must resort to the property in a certain order, on the demand of any party interested) and Section 3433 (where a creditor is entitled to resort to each of several funds for the satisfaction of his claim, and another person has an interest in, or is entitled as a creditor to resort to some, but not all of them, the latter may require the former to seek satisfaction from those funds to which the latter has no such claim, so far as it can be done without impairing the right of the former to complete satisfaction, and without doing injustice to third persons). f. To the extent not addressed elsewhere by this Guaranty, Guarantor expressly agrees not to exercise or take advantage of any rights, benefits and/or defenses which might be available to Guarantor under the following California Civil Code Sections, unless and until the guaranteed obligations shall have been indefeasibly paid and satisfied in full: Section 2839 (performance of the principal obligation, or an offer of such performance, duly made as provided in the Civil Code, exonerates a surety), Section 2848 (a surety, upon satisfaction of the obligation of the principal, is entitled to enforce remedies which the creditor then has against the principal and to pursue his co-sureties or other third parties after the surety has satisfied the underlying debt, or at least more than his share of it), and Section 2849 (a surety is entitled to the benefit of security held by the creditor for the performance of the principal obligation held by the creditor). g. Guarantor waives any defense that Guarantor may have by reason of the failure of Lender to provide Guarantor with any material facts about Borrower, including any information respecting the financial condition of Borrower, Borrower’s ability to perform the Loan obligations or the sufficiency of Lender’s security. h. Guarantor waives any defense that may arise by reason of the incapacity, lack of authority, death or disability of any other Person, or the failure of Lender to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other person or persons. i. To the extent applicable to Guarantor, Guarantor waives all rights of indemnification and contribution and any other rights and defenses that are or may become available to Guarantor by reason of Sections 2787 to 2855, inclusive, of the California Civil Code. Guarantor hereby waives the benefits of any right of discharge under any and all statutes or other laws relating to guarantors or sureties and any other rights of guarantors or sureties thereunder. j. To the extent applicable to Guarantor, Guarantor waives all rights and defenses that Guarantor may have because the debtor’s (Borrower’s) debt is secured by real property. This is an unconditional and irrevocable waiver of any rights and defenses Guarantor may have because the debtor’s debt is secured by real property. These rights and defenses include, but are not limited to, any rights or defenses based upon Sections 580a, 580b, 580d or 726 of the California Code of Civil Procedure. This means, among other things: i. The creditor (Lender) may collect from Guarantor without first foreclosing on any real or personal property collateral pledged by the debtor. ii. If the creditor forecloses on any real property collateral pledged by the debtor: (A) the amount of the debt may be reduced only by the price for which that collateral is sold at the foreclosure sale, even if the collateral is worth more than the sale price; and (B) the creditor may collect from Guarantor even if the creditor, by foreclosing on the real property collateral, has destroyed any right Guarantor may have to collect from the debtor. k. To the extent applicable to Guarantor, Guarantor waives all rights and defenses arising out of an election of remedies by the creditor, even though that election of remedies, such as a nonjudicial foreclosure with respect to security for a guaranteed obligation, has destroyed Guarantor's rights of subrogation and reimbursement against the principal (Borrower) by the operation of Section 580d of the California Code of Civil Procedure or otherwise. l. Guarantor waives any rights and defenses that might arise out of the use of a single purpose entity as the Borrower, where Guarantor is its sole or managing member/shareholder. m. Any summary of statutory provisions is for convenience only, and Guarantor has read and is familiar with the entirety of such provisions. 9. No Effect Upon Obligations. At any time or from time to time and any number of times, without notice to Guarantor and without releasing, discharging or affecting the liability of Guarantor: a. the time for payment of the principal of or interest on the Indebtedness may be extended or the Indebtedness may be renewed in whole or in part; b. the rate of interest on or period of amortization of the Loan or the amount of the Monthly Debt Service Payments payable under the Loan Documents may be modified; c. the time for Borrower's performance of or compliance with any covenant or agreement contained in any Loan Document, whether presently existing or hereinafter entered into, may be extended or such performance or compliance may be waived; d. the maturity of the Indebtedness may be accelerated as provided in the Loan Documents; e. any or all payments due under the Note or any other Loan Document may be reduced; f. any Loan Document may be modified or amended by Lender and Borrower in any respect, including an increase in the principal amount of the Loan; g. any amounts under the Note or any other Loan Document may be released; h. any security for the Indebtedness may be modified, exchanged, released, surrendered or otherwise dealt with or additional security may be pledged or mortgaged for the Indebtedness; i. the payment of the Indebtedness or any security for the Indebtedness, or both, may be subordinated to the right to payment or the security, or both, of any other present or future creditor of Borrower; j. any payments made by Borrower to Lender may be applied to the Indebtedness in such priority as Lender may determine in its discretion; and k. any other terms of the Loan Documents may be modified as required by Lender. 10. Joint and Several Liability. If more than one Person executes this Guaranty as Guarantor, such Persons shall be liable for the obligations hereunder on a joint and several basis. Lender, in its discretion, may: a. to the extent permitted by applicable law, bring suit against Guarantor, or any one or more of the Persons constituting Guarantor, and any other guarantor, jointly and severally, or against any one or more of them; b. compromise or settle with any one or more of the Persons constituting Guarantor, or any other guarantor, for such consideration as Lender may deem proper; c. discharge or release one or more of the Persons constituting Guarantor, or any other guarantor, from liability or agree not to sue such Person; and d. otherwise deal with Guarantor and any guarantor, or any one or more of them, in any manner, and no such action shall impair the rights of Lender to collect from Guarantor any amount guaranteed by Guarantor under this Guaranty. Nothing contained in this Section 10 shall in any way affect or impair the rights or obligations of Guarantor with respect to any other guarantor. 11. Subordination of Affiliated Debt. Any indebtedness of Borrower held by Guarantor now or in the future is and shall be subordinated to the Indebtedness and any such indebtedness of Borrower shall be collected, enforced and received by Guarantor, as trustee for Lender, but without reducing or affecting in any manner the liability of Guarantor under the other provisions of this Guaranty. 12. Subrogation. Guarantor shall have no right of, and hereby waives any claim for, subrogation or reimbursement against Borrower or any general partner of Borrower by reason of any payment by Guarantor under this Guaranty, whether such right or claim arises at law or in equity or under any contract or statute, until the Indebtedness has been paid in full and there has expired the maximum possible period thereafter during which any payment made by Borrower to Lender with respect to the Indebtedness could be deemed a preference under the Insolvency Laws. 13. Voidable Transfer. If any payment by Borrower is held to constitute a preference under any Insolvency Laws or similar laws, or if for any other reason Lender is required to refund any sums to Borrower, such refund shall not constitute a release of any liability of Guarantor under this Guaranty. It is the intention of Lender and Guarantor that Guarantor's obligations under this Guaranty shall not be discharged except by Guarantor's performance of such obligations and then only to the extent of such performance. If any payment by any Guarantor should for any reason subsequently be declared to be void or voidable under any state or federal law relating to creditors' rights, including provisions of the Insolvency Laws relating to a Voidable Transfer, and if Lender is required to repay or restore, in whole or in part, any such Voidable Transfer, or elects to do so upon the advice of its counsel, then the obligations guaranteed hereunder shall automatically be revived, reinstated and restored by the amount of such Voidable Transfer or the amount of such Voidable Transfer that Lender is required or elects to repay or restore, including all reasonable costs, expenses and legal fees incurred by Lender in connection therewith, and shall exist as though such Voidable Transfer had never been made, and any other guarantor, if any, shall remain liable for such obligations in full. 14. Credit Report/Credit Score. Guarantor acknowledges and agrees that Lender is authorized, no more frequently than once in any twelve (12) month period, to obtain a credit report (if applicable) on Guarantor, the cost of which shall be paid for by Guarantor. Guarantor acknowledges and agrees that Lender is authorized to obtain a Credit Score (if applicable) for Guarantor at any time at Lender's expense. 15. Financial Reporting. To the extent required in the Security Instrument, Guarantor shall promptly deliver to Borrower all financial statements of Guarantor which Borrower is required by the Security Instrument to deliver to Lender, in time for Borrower to deliver the same to Lender on or before the date provided for the delivery thereof under the Security Instrument. 16. Further Assurances. Guarantor acknowledges that Lender (including its successors and assigns) may sell or transfer the Loan, or any interest in the Loan. a. Guarantor shall, subject to Section 15b below: i. do anything necessary to comply with the reasonable requirements of Lender or any Investor of the Loan or provide, or cause to be provided, to Lender or any Investor of the Loan within ten (10) days of the request, at Borrower's and Guarantor's cost and expense, such further documentation or information as Lender or Investor may reasonably require, in order to enable: (A) Lender to sell the Loan to such Investor; (B) Lender to obtain a refund of any commitment fee from any such Investor; or (C) any such Investor to further sell or securitize the Loan; ii. confirm that Guarantor is not in default under this Guaranty or in observing any of the covenants or agreements contained in this Guaranty (or, if Guarantor is in default, describing such default in reasonable detail); and iii. execute and deliver to Lender and/or any Investor such other documentation, including any amendments, corrections, deletions or additions to this Guaranty as is reasonably required by Lender or such Investor. b. Nothing in this Section 15 shall require Guarantor to do any further act that has the effect of: i. changing the essential economic terms of the Loan set forth in the related commitment letter between Borrower and Lender; ii. imposing on Borrower or Guarantor greater personal liability under the Loan Documents than that set forth in the related commitment letter between Borrower and Lender; or iii. materially changing the rights and obligations of Borrower or Guarantor under the commitment letter. 17. Successors and Assigns. Lender may assign its rights under this Guaranty in whole or in part and, upon any such assignment, all the terms and provisions of this Guaranty shall inure to the benefit of such assignee to the extent so assigned. Guarantor may not assign its rights, duties and obligations under this Guaranty, in whole or in part, without Lender's prior written consent and any such assignment shall be deemed void ab initio. The terms used to designate any of the parties herein shall be deemed to include the heirs, legal representatives, successors and assigns of such parties. 18. Final Agreement. Guarantor acknowledges receipt of a copy of each of the Loan Documents and this Guaranty. THIS GUARANTY REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES. All prior or contemporaneous agreements, understandings, representations and statements, oral or written, are merged into this Guaranty. Neither this Guaranty nor any of its provisions may be waived, modified, amended, discharged or terminated except by an agreement in writing signed by the party against which the enforcement of the waiver, modification, amendment, discharge or termination is sought, and then only to the extent set forth in that agreement. 19. Governing Law. This Guaranty and the rights and obligations of all parties hereunder shall be governed by and construed in accordance with the laws of the state of California without giving effect to any choice of law provisions thereof that would result in the application of the laws of another jurisdiction. 20. Time is of the Essence. Guarantor agrees that, with respect to each and every obligation and covenant contained in this Guaranty, time is of the essence. 21. No Reliance. Guarantor hereby acknowledges, represents and warrants that: a. it understands the nature and structure of the transactions contemplated by this Guaranty and the other Loan Documents; b. it is familiar with the provisions of all of the documents and instruments relating to such transactions; c. it understands the risks inherent in such transactions, including the risk of loss of all or any part of the Property or of the assets of Guarantor; d. it has had the opportunity to consult counsel; and e. it has not relied on Lender for any guidance or expertise in analyzing the financial or other consequences of the transactions contemplated by this Guaranty or any other Loan Document or otherwise relied on Lender in any manner in connection with interpreting, entering into or otherwise in connection with this Guaranty, any other Loan Document or any of the matters contemplated hereby or thereby. 22. Notices. All notices, requests and demands hereunder shall be in writing and: (a) made to a party at the address identified below, or to such other address as a party may designate by written notice to the other parties in accordance with this provision; and (b) deemed to have been given or made: (i) if delivered in person, immediately upon delivery; (ii) if by nationally recognized overnight courier service with all delivery fees prepaid and with instructions to deliver the next business day, one (1) business day after sending; (iii) if by certified mail, with all postage fees paid and return receipt requested, three (3) business days after mailing; or (iv) one (1) workday following transmission, if sent by e-mail, provided that evidence of such facsimile or e-mail transmission is retained by the sending party and the intended receiving party shall be entitled to a copy of such evidence upon request. A written notice sent to a party (other than via e-mail transmission) shall also be deemed received on the date delivery shall have been refused at the address required by this Guaranty. To Lender: Patch of Land Lending, LLC, 15000 Ventura Blvd #202 Sherman Oaks, CA 91403 Attention, Operations Department Email: [email protected] To Guarantor: Tonya Weathers 6218 Fitzgerald Ct., Garland, TX, 75044 Email: [email protected] To Guarantor: James Peterson 7824 Sevenoaks Drive North Richland Hills, TX, 76182 Email: James @banyantx.com 23. Construction. a. Any reference in this Guaranty to an "Exhibit" or "Schedule" or a "Section" or an "Article" shall, unless otherwise explicitly provided, be construed as referring, respectively, to an exhibit or schedule attached to this Guaranty or to a Section or Article of this Guaranty. b. Any reference in this Guaranty to a statute or regulation shall be construed as referring to that statute or regulation as amended from time to time. c. Use of the singular in this Guaranty includes the plural and use of the plural includes the singular. d. As used in this Guaranty, the term "including" means "including, but not limited to" or "including, without limitation," and is for example only, and not a limitation. e. Whenever Guarantor's knowledge is implicated in this Guaranty or the phrase "to Guarantor's knowledge" or a similar phrase is used in this Guaranty, Guarantor's knowledge or such phrase(s) shall be interpreted to mean to the best of Guarantor's knowledge after reasonable and diligent inquiry and investigation. f. Unless otherwise provided in this Guaranty, if Lender's approval, designation, determination, selection, estimate, action or decision is required, permitted or contemplated hereunder, such approval, designation, determination, selection, estimate, action or decision shall be made in Lender's sole and absolute discretion. g. All references in this Guaranty to a separate instrument or agreement shall include such instrument or agreement as the same may be amended or supplemented from time to time pursuant to the applicable provisions thereof. h. "Lender may" shall mean at Lender's discretion, but shall not be an obligation. 24. Counterparts. This Guaranty may be executed in one or more counterparts by some or all of the parties hereto, each of which counterparts shall be an original and all of which together shall constitute a single agreement of Guaranty. The failure of any party hereto to execute this Guaranty, or any counterpart hereof, shall not relieve the other signatories from their obligations hereunder. 25. Attorney's Fees. If Lender retains attorneys to enforce any of the terms hereof or because of the breach by Guarantor of any of the terms hereof, Guarantor shall pay to Lender reasonable attorneys' fees and all costs and expenses, whether or not an action is actually commenced, and the right to such attorneys' fees and all costs and expenses shall be deemed to have accrued on the date such attorneys are retained, shall include fees and costs in connection with litigation, arbitration, mediation and/or administrative proceedings, and shall be enforceable whether or not such action is prosecuted to judgment and shall include all appeals. Attorneys' fees and expenses for purposes of this Agreement include all paralegal, electronic research, legal specialists and all other costs in connection with the performance of Lender's attorneys. 26. Acknowledgement. Guarantor has read and understands each of the terms and conditions of this Guaranty and is entering into this Guaranty freely and voluntarily, without duress, after having had an opportunity for consultation with independent counsel of its own selection, and not in reliance upon any representations, warranties, or agreements made by Lender and not set forth in this Guaranty. 27. Governing Law. This Guaranty and the rights and obligations of all parties hereunder shall be governed by and construed in accordance with the laws of the state of California without giving effect to any choice of law provisions thereof that would result in the application of the laws of another jurisdiction. 28. WAIVER OF JURY TRIAL. GUARANTOR HEREBY VOLUNTARILY, KNOWINGLY, IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE (WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE) BETWEEN OR AMONG GUARANTOR AND LENDER ARISING OUT OF OR IN ANY WAY RELATED TO THIS GUARANTY, ANY OTHER LOAN DOCUMENT, OR ANY RELATIONSHIP BETWEEN GUARANTOR AND LENDER. THIS PROVISION IS A MATERIAL INDUCEMENT TO LENDER TO PROVIDE THE LOAN DESCRIBED HEREIN AND IN THE OTHER LOAN DOCUMENTS. 29. JURISDICTION AND VENUE. GUARANTOR HEREBY AGREES THAT ALL ACTIONS OR PROCEEDINGS INITIATED BY GUARANTOR AND ARISING DIRECTLY OR INDIRECTLY OUT OF THIS GUARANTY SHALL BE LITIGATED (AT THE OPTION OF LENDER) IN THE STATE AND FEDERAL COURTS OF THE STATE OF CALIFORNIA OR, IF LENDER INITIATES SUCH ACTION, ANY COURT OF RECORD IN THE STATE OR COMMONWEALTH IN WHICH THE PROPERTY IS LOCATED OR ANY OTHER COURT IN WHICH LENDER SHALL INITIATE SUCH ACTION AND WHICH HAS JURISDICTION. THE PARTIES IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH GUARANTOR MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT, AND ANY CLAIM THAT SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. NOTWITHSTANDING THE FOREGOING, LENDER SHALL NOT BE DEEMED TO BE PRECLUDES FROM ENFORCING ANY JUDGMENT OBTAINED IN ANY OTHER FORUM OR TAKING ANY ACTION TO ENFORCE THE SAME IN ANY OTHER APPROPRIATE JURISDICTION, AND GUARANTOR HEREBY WAIVES THE RIGHT, IF ANY, TO COLLATERALLY ATTACK ANY SUCH JUDGMENT OR ACTION. 30. CONFESSION OF JUDGMENT (Applicable to indebtedness governed by the laws of each of the following states) a. MARYLAND. Warrant of Attorney to Confess Judgment. If payment of the indebtedness evidenced by this Guaranty, or any part thereof, shall not be made when due or at maturity, by acceleration or otherwise, Guarantor hereby irrevocably authorizes and empowers any attorney-at-law, including an attorney hired by Lender, to appear in any court of record or before any Clerk thereof for Guarantor and to confess judgment against Guarantor for the unpaid amount of the Guaranty as evidenced by an affidavit signed by Lender, together with costs of such proceeding and reasonable attorneys' fees of fifteen (15) percent of the unpaid principal balance and accrued and unpaid interest due hereunder. Guarantor waives and releases all errors and all rights of exemption, appeal, stay of execution, inquisition and extension upon any levy or real estate or personal property to which Guarantor may otherwise be entitled under the laws of any State or possession of the United States now in force or which may hereafter be passed. If this Guaranty is referred to any attorney for collection, and payment is obtained without the entry of a judgment, then Guarantor shall pay to Lender all reasonable attorneys' fees incurred. If a copy of this Guaranty, verified by an affidavit, shall have been filed in the proceeding, it will not be necessary to file the original as a warrant of attorney. No single exercise of the foregoing warrant and power to confess judgment shall be deemed to exhaust the power, whether or not any such exercise shall be held by any court to be invalid, voidable or void; but the power shall continue undiminished and may be exercised from time to time as Lender may elect until all amounts owing on this Guaranty have been paid in full. Guarantor waives any conflict of interest that an attorney hired by Lender may have in acting on behalf of Guarantor in confessing judgment against Guarantor while such attorney is retained by Lender. Guarantor expressly consents, to such confessing attorney acting for Guarantor in confessing judgment, and consents to Lender paying such confessing attorney a legal fee or allowing such attorney's fees to be paid from any proceeds of collection of the Guaranty. If Guarantor is jointly and severally liable under the Loan Documents, then this warrant of attorney to confess Judgment is a joint and several warrant of attorney.' b. ILLINOIS. Warrant of Attorney to 'Confess Judgment. Guarantor irrevocably authorizes and empowers any attorney-at-law, including an attorney hired by Lender, to appear in any court of record for Guarantor, at any time from time to time after payment is due, whether by acceleration of otherwise, and to confess judgment against Guarantor for the unpaid amount of the Guaranty, as evidenced by an affidavit signed by Lender, together with costs of such proceeding and reasonable attorneys' fees.' Guarantor waives and releases all errors and all rights of appeal. Guarantor waives the right to any stay of execution and the benefit of all exemption laws now or hereafter in effect, hereby ratifying and confirming all that said attorney may do by virtue of this warrant. If a copy of this Guaranty, verified by an affidavit, shall have been filed in the proceeding, it will not be necessary to file the original as a warrant of attorney. No single exercise of the foregoing warrant and power to confess judgment shall be deemed to exhaust the power, whether or not any such exercise shall be held by any court to be invalid, voidable or void; but the power shall continue undiminished and may be exercised from time to time as Lender may elect until all amounts owing on this Guaranty have been paid in full. Guarantor waives any conflict of interest that an attorney hired by Lender may have in acting on behalf of Guarantor in confessing judgment against Guarantor while such attorney is retained by Lender. Guarantor expressly consents to such confessing attorney acting for Guarantor in confessing judgment, and consents to Lender paying such confessing attorney a legal fee or allowing such attorney's fees to be paid from any proceeds of collection of the Guaranty. If Guarantor is jointly and severally liable under the Loan Documents, then this warrant of attorney to confess judgment is a joint and several warrant of attorney. c. OHIO. Warrant of Attorney to Confess Judgment. Guarantor irrevocably authorizes and empowers any attorney-at-law, including an attorney hired by Lender, to appear in any court of record and to confess judgment against Guarantor for the unpaid amount of the Guaranty as evidenced by an affidavit signed by an officer of Lender setting forth the amount then due, including attorneys' fees plus costs of suit, and to release all errors and waive all rights of appeal. If a copy of this Guaranty, verified by an affidavit, shall have been filed in the proceeding, it will not be necessary to file the original as a warrant of attorney. Guarantor waives the right to any stay of execution and the benefit of all exemption laws now or hereafter in effect. No single exercise of the foregoing warrant and power to confess judgment shall be deemed to exhaust the power, whether or not any such exercise shall be held by any court to be invalid, voidable or void; but the power shall continue undiminished and may be exercised from time to time as Lender may elect until all amounts owing on this Guaranty have been paid in full. Guarantor waives any conflict of interest that an attorney hired by Lender may have in acting on behalf of Guarantor in confessing judgment against Guarantor while such attorney is retained by Lender. Guarantor expressly consents to such confessing attorney acting for Guarantor in confessing judgment, and consents to Lender paying such confessing attorney a legal fee or allowing such attorney's fees to be paid from any proceeds of collection of the Guaranty. If Guarantor is jointly and severally liable under the Loan Documents, then this warrant of attorney to confess judgment is a joint and several warrant of attorney. d. NEW JERSEY. Cognovit Provisions. Guarantor irrevocably authorizes and empowers any attorney-at-law, including an attorney hired by Lender, to appear in any Court of record situated in the county where Guarantor then resides, or in the county where either one or more Guarantors signed this warrant after this Note becomes due, with or without declaration filed, and each and all waive the issuance and service of process, enter appearance and confess or enter a judgment or a series of judgments against Guarantor(s) in favor of the Holder of this Note, for the amount then appearing due, together with all costs of suit, reasonable attorney's fees for collection and all legal and litigation expenses, and thereupon to release all errors and waive all claims, rights of appeal and stay of execution and for so doing, this Note or a copy thereof verified by Affidavit, shall be a sufficient warrant. [Remainder of Page Left Intentionally Blank] Notice for indebtedness secured by property in Ohio: NOTICE: FOR THIS NOTICE "YOU" MEANS THE GUARANTOR AND "CREDITOR" AND "HIS" MEANS LENDER. WARNING -- BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT TRIAL. IF YOU DO NOT PAY ON TIME A COURT JUDGMENT MAY BE TAKEN AGAINST YOU WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE USED TO COLLECT FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE CREDITOR WHETHER FOR RETURNED GOODS, FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH THE AGREEMENT, OR OTHER CAUSE. IN WITNESS WHEREOF, Guarantor has signed and delivered this Guaranty under seal (where applicable) or has caused this Guaranty to be signed and delivered under seal (where applicable) by its duly authorized representative. Where applicable law so provides, Guarantor intends that this Guaranty shall be deemed to be signed and delivered as a sealed instrument. GUARANTOR: By: [Signature] Name: Tonya Weathers Title: An Individual By: [Signature] Name: James Peterson Title: An Individual A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. STATE OF (Texas) COUNTY OF (Denton) On 10 April, 2018, before me, NOVA A FISHER, a Notary Public, personally appeared Tonya Weathers and James Peterson, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of Texas that the foregoing paragraph is true and correct. WITNESS my hand and official seal. NOVA A. FISHER ID # 126230087 Notary Public, State of Texas My Commission Expires 08/24/2019 [Signature] Notary Public A POWER OF SALE HAS BEEN GRANTED IN THIS MORTGAGE. A POWER OF SALE MAY ALLOW MORTGAGEE TO TAKE THE MORTGAGED PROPERTY AND SELL IT WITHOUT GOING TO COURT IN A FORECLOSURE ACTION UPON DEFAULT BY MORTGAGOR UNDER THIS MORTGAGE. MORTGAGE, ASSIGNMENT OF LEASES AND RENTS, SECURITY AGREEMENT AND FIXTURE FINANCING STATEMENT THIS MORTGAGE, ASSIGNMENT OF LEASES AND RENTS, SECURITY AGREEMENT AND FIXTURE FINANCING STATEMENT ("Mortgage") is made and delivered as of April 6, 2018 by Banyan Strategies, LLC, a(n) Texas Limited Liability Company ("Mortgagor"), having a mailing address of 412 S CARROLL BLVD STE 1000 DENTON, TX 76201-7449, Attention: Tonya Weathers, for the benefit of PATCH OF LAND LENDING, LLC, a limited liability company formed under the laws of the State of Delaware, its endorsing successors and assigns ("Mortgagee"), having a mailing address of: 15000 Ventura Blvd Suite 202, Sherman Oaks, CA 91403, Attention, Operations Department. RECITALS: A. Mortgagor is indebted to Mortgagee, as evidenced by that certain Promissory Note (as the same may be amended, modified, restated or replaced from time to time, the "Note") of even date herewith, in the original principal sum of One Million One Hundred Fifty-One Thousand and 00/100 Dollars ($1,151,000.00) (the "Loan"), both principal and interest of the Note being payable at the office of Mortgagee as more specifically set forth therein. Capitalized terms used, and not otherwise defined, herein shall have the meaning given such terms in the Note. B. In connection with the Loan, and as a condition thereof: (i) Tonya Weathers, an individual and James Peterson, an Individual (Individually and Collectively "Guarantor"), has executed and delivered that certain Guaranty, of even date herewith, in favor of Mortgagee with respect to the Loan and the obligations of Mortgagor with respect thereto (as the same may be amended, modified, restated or replaced from time to time, the "Guaranty"); and (ii) Mortgagor and Guarantor have executed and delivered that certain Environmental Indemnity Agreement, of even date herewith, in favor of Mortgagee with respect to the Premises (as hereinafter defined; as the same may be amended, modified, restated or replaced from time to time, the "Environmental Indemnity Agreement"). C. Mortgagor and Mortgagee desire and intend that the Note be secured by, among other things: (i) this Mortgage; (ii) an Assignment of Rents and Leases from Mortgagee, as assignor, in favor of Mortgagee, as assignee, of even date herewith; (iii) the Guaranty; and (iv) the Environmental Indemnity Agreement. D. As a condition precedent to making the Loan, Mortgagee has required, among other things, that the Mortgagor execute and deliver this Mortgage to, and in favor of, Mortgagee. E. In order to induce the Mortgagee to make the Loan, and all other monies to be advanced under the Note, Mortgagor has agreed to execute and deliver this Mortgage. NOW, THEREFORE, THIS CONVEYANCE in consideration of the sums advanced to Mortgagor under the Note, in hand paid by Mortgagee, the receipt and sufficiency of which is hereby acknowledged, Chicago Title Oklahoma 3401 NW 63rd St., Ste. 360 Oklahoma City, OK 73116 Lender Express File # [REDACTED] A POWER OF SALE HAS BEEN GRANTED IN THIS MORTGAGE. A POWER OF SALE MAY ALLOW MORTGAGEE TO TAKE THE MORTGAGED PROPERTY AND SELL IT WITHOUT GOING TO COURT IN A FORECLOSURE ACTION UPON DEFAULT BY MORTGAGOR UNDER THIS MORTGAGE. MORTGAGE, ASSIGNMENT OF LEASES AND RENTS, SECURITY AGREEMENT AND FIXTURE FINANCING STATEMENT THIS MORTGAGE, ASSIGNMENT OF LEASES AND RENTS, SECURITY AGREEMENT AND FIXTURE FINANCING STATEMENT ("Mortgage") is made and delivered as of April 6, 2018 by Banyan Strategies, LLC, a(n) Texas Limited Liability Company ("Mortgagor"), having a mailing address of 412 S CARROLL BLVD STE 1000 DENTON, TX 76201-7449, Attention: Tonva Weathers, for the benefit of PATCH OF LAND LENDING, LLC, a limited liability company formed under the laws of the State of Delaware, its endorsees, successors and assigns ("Mortgagee"), having a mailing address of: 15000 Ventura Blvd Suite 202, Sherman Oaks, CA 91403, Attention, Operations Department. RECITALS: A. Mortgagor is indebted to Mortgagee, as evidenced by that certain Promissory Note (as the same may be amended, modified, restated or replaced from time to time, the "Note") of even date herewith, in the original principal sum of One Million One Hundred Fifty-One Thousand and 00/100 Dollars ($1,151,000 00) (the "Loan"), both principal and interest of the Note being payable at the office of Mortgagee as more specifically set forth therein. Capitalized terms used, and not otherwise defined, herein shall have the meaning given such terms in the Note. B. In connection with the Loan, and as a condition thereof: (i) Tonva Weathers, an individual and James Peterson, an Individual (Individually and Collectively "Guarantor"), has executed and delivered that certain Guaranty, of even date herewith, in favor of Mortgagee with respect to the Loan and the obligations of Mortgagor with respect thereto (as the same may be amended, modified, restated or replaced from time to time, the "Guaranty"); and (ii) Mortgagor and Guarantor have executed and delivered that certain Environmental Indemnity Agreement, of even date herewith, in favor of Mortgagee with respect to the Premises (as hereinafter defined; as the same may be amended, modified, restated or replaced from time to time, the "Environmental Indemnity Agreement"). C. Mortgagor and Mortgagee desire and intend that the Note be secured by, among other things: (i) this Mortgage; (ii) an Assignment of Rents and Leases from Mortgagee, as assignor, in favor of Mortgagee, as assignee, of even date herewith; (iii) the Guaranty; and (iv) the Environmental Indemnity Agreement. D. As a condition precedent to making the Loan, Mortgagee has required, among other things, that the Mortgagor execute and deliver this Mortgage to, and in favor of, Mortgagee. E. In order to induce the Mortgagee to make the Loan, and all other monies to be advanced under the Note, Mortgagor has agreed to execute and deliver this Mortgage. NOW, THEREFORE, THIS CONVEYANCE in consideration of the sums advanced to Mortgagor under the Note, in hand paid by Mortgagee, the receipt and sufficiency of which is hereby acknowledged. and to secure the payment of of the principal, interest, and premium, if any, on the Note the terms and conditions of which are incorporated herein by reference and made a part hereof, together with any extensions or renewals thereof, due and payable with interest thereon as provided therein, the balance of said principal sum together with interest thereon being due and payable in any event on May 1, 2019 (the "Maturity Date"), and to secure payment to Mortgagee, its successors or assigns, at the times demanded and with interest thereon at the same rate specified in the Note, of all sums advanced in protecting the lien of this Mortgage, in payment of taxes on the Premises (as that term is hereinafter defined), in payment of insurance premiums covering improvements thereon, in payment of principal and interest on prior liens, in payment of waste protection, in payment of expenses and actual attorneys' fees herein provided for and all sums advanced for any other purpose authorized herein (the Note and all such sums, together with interest thereon, being hereinafter collectively referred to as the "Indebtedness") and to secure the performance by Mortgagor of each and every term, covenant, agreement and condition contained in the Note and the Loan Documents. Mortgagor does hereby, GRANT, BARGAIN, SELL, CONVEY, MORTGAGE, WARRANT AND CONFIRM UNTO MORTGAGEE and is successor and assigns forever AND GRANTS TO MORTGAGEE, WITH POWER OF SALE AND RIGHT OF ENTRY, and grants to Mortgagee, its successors and assigns, A SECURITY INTEREST IN the following properties to secure payment of the Indebtedness (all of the following identified in granting clauses (A) through (F) being hereafter sometimes referred to, individually and collectively, as the "Premises"): GRANTING CLAUSES A. Real Property. All the tracts or parcels of real property lying and being in the COUNTY OF Beckham, STATE OF OKLAHOMA ("Real Property") all as more fully described in Exhibit A attached hereto and which is hereby incorporated into this Mortgage by reference, together with all the estates and rights in and to the Real Property, and in and to lands lying in streets, alleys and roads or gores of land adjoining the Real Property, all minerals, oil, gas and other hydrocarbon substances on, in and under the Real Property, as well as all development rights, air rights, water, water rights, water stock, mineral or oil rights, parking rights and general intangibles relating to, generated from, arising out of or incidental to the Real Property, its ownership, development or use. B. Improvements, Fixtures, Equipment and Personal Property. All buildings, structures, improvements, fixtures and annexations, access rights, easements, rights of way or use, servitudes, licenses, tenements, hereditaments and appurtenances now or hereafter belonging or pertaining to the Real Property and all proceeds and products derived therefrom whether now owned or hereafter acquired; and all equipment (including Mortgagor's interest in any lease of such equipment), fixtures, improvements, building supplies and materials and personal property owned by Mortgagor now or hereafter attached to, located in, placed in or necessary to the use, operation or maintenance of the improvements on the land including, but without being limited to, all machinery, fittings, fixtures, apparatus, equipment or articles used to supply heating, gas, electricity, air conditioning, water, light, waste disposal, power, refrigeration, ventilation, and fire and sprinkler protection, as well as all elevators, escalators, overhead cranes, hoists and assists, and the like, and all furnishings, supplies, draperies, maintenance and repair equipment, window and structural cleaning rigs and equipment, floor coverings, appliances, screens, storm windows, blinds, awnings, shrubbery and plants, stoves, ranges, ovens, refrigerators, air conditioners, dishwashers, clothes dryers, washing machines, disposals and compactors (it being understood that the enumeration of specific articles of property shall in no way be held to exclude items of property not specifically enumerated), as well as renewals, replacements, proceeds, additions, accessories, increases, parts, fittings, insurance payments, awards and substitutes thereof, together with all interest of Mortgagor in any such items hereafter acquired, and all personal property which by the terms of any lease shall become the property of Mortgagor at the termination of such lease, all of which personal property mentioned herein shall be deemed fixtures and accessory to the freehold and a part of the realty and not severable in whole or in part without material injury to the Premises, but excluding therefrom the removable personal property owned by tenants in the Premises ("Improvements"). C. Rents, Leases and Profits. All rents, issues, income, revenue, receipts, fees, and profits ("Rents") now due or which may hereafter become due under or by virtue of and together with all right, title and interest of Mortgagor in and to any lease, license, sublease, contract or other kind of occupancy agreement, whether written or verbal, for the use or occupancy of the Premises or any part thereof together with all security therefor and all monies payable thereunder, including, without limitation, tenant security deposits, and all books and records which contain information pertaining to payments made thereunder and security therefor, subject, however, to the conditional permission herein given to Mortgagor to collect the rents, income and other normal income benefits arising under any agreements. Mortgagee shall have the right, not as a limitation or condition hereof but as a personal covenant available only to Mortgagee, at any time and from time to time, to notify any lessee of the rights of Mortgagee hereunder. Together with all right, title and interest of Mortgagor in and to any and all contracts for sale and purchase of all or any part of the property described in these Granting Clauses A, B and C hereof, and any down payments, earnest money deposits or other sums paid or deposited in connection therewith. D. Judgments, Condemnation Awards, Insurance Proceeds, and Other Rights. All awards, compensation or settlement proceeds made by any governmental or other lawful authorities for the threatened or actual taking or damaging by eminent domain of the whole or any part of the Premises, including any awards for a temporary taking, change of grade of streets or taking of access, together with all Insurance Proceeds resulting from a casualty to any portion of the Premises: all rights and interests of Mortgagor against others, including adjoining property owners, arising out of damage to the property including damage due to environmental injury or release of hazardous substances. E. Licenses, Permits, Equipment Leases and Service Agreements. All right, title and interest of Mortgagor in and to any licenses, permits, regulatory approvals, government authorizations, franchise agreements and equipment or chattel leases, service contracts or agreements, tradenames, any and all other intangibles, including general intangibles, and all proceeds therefrom, arising from, issued in connection with or in any way related to the use, occupancy, operation, maintenance or security of the Premises, together with all replacements, additions, substitutions and renewals thereof, which may be assigned pursuant to agreement or law. F. Proceeds. All sale proceeds, refinancing proceeds or other proceeds, including deposits and down payments derived from or relating to the Premises described in Granting Clauses A through E herein. TO HAVE AND TO HOLD THE PREMISES, with all estate, right, title and interest of Mortgagor and anyone claiming by, through or under Mortgagor, in, to, under or derived from the Premises and all rights and appurtenances relating thereto, unto Mortgagee, its successors and assigns forever, upon the terms, provisions and conditions set forth in this Mortgage, subject however, to the Permitted Encumbrances (as hereinafter defined). PROVIDED NEVERTHELESS, that if Mortgagor, Mortgagor's heirs, administrators, personal representatives, successors or assigns, shall pay to Mortgagee, its successors or assigns, the full amount of the Indebtedness as and when due, and shall keep and perform all of the covenants and agreements herein contained, then this Mortgage shall become null and void, and shall be released at Mortgagor's expense, otherwise this Mortgage to remain in full force and effect. ARTICLE I GENERAL REPRESENTATIONS AND WARRANTIES Section 1.1. Representations and Warranties. Mortgagor hereby represents and warrants to Mortgagee, its successors and assigns, that, as of the date hereof: (a) Mortgagor, for itself, Mortgagor's administrators, personal representatives, successors and assigns, covenants with Mortgagee, its successors and assigns, that Mortgagor is lawfully seized of the Premises and has good right to mortgage, grant a security interest in, sell and convey the same. (b) The Premises are free from all encumbrances except as may be set forth in Schedule B of that certain ALTA Loan Policy of Title Insurance issued to Mortgagee and insuring the first lien position of this Mortgage ("Permitted Encumbrances"). (c) Mortgagor, its successors and assigns, will WARRANT AND DEFEND the title to the same against all lawful claims not specifically excepted in this Mortgage. As used herein the words "successors and assigns" shall also be deemed to include the heirs, representatives, administrators and executors of any natural person who is a party to the Mortgage. (d) If Mortgagor is a corporation, partnership, limited liability company or trust, it is duly organized, validly existing and in good standing under the laws of the State or Commonwealth of its organization, is duly qualified to do business in all states in which it is required to be so qualified, and has all requisite power and authority to enter into this Mortgage and to perform its obligations hereunder; the execution, delivery and performance of this Mortgage by Mortgagor has been duly and validly authorized; and all requisite action has been taken by Mortgagor to make this Mortgage valid and binding upon Mortgagor, enforceable in accordance with its terms. (e) If Mortgagor is an individual, such individual is of legal age, is under no legal disability and is fully competent to make, execute and deliver this Mortgage. (f) Neither Mortgagor nor any member of Mortgagor nor any Guarantor (hereinafter defined) is or will become a "Person" described by Section 1 of The Anti-Terrorism Executive Order 13,224 of September 23, 2001 blocking property and prohibiting transactions with Persons who commit, threaten to commit, or support terrorism, 66 Fed. Reg. 49,049 (2001), or described in any rule or regulation implementing the same and, to the best knowledge and belief of the Mortgagor after due and adequate diligence, neither Mortgagor nor any member of Mortgagor nor any Guarantor engages or will engage in any dealings or transactions, or be otherwise associated with, any such Persons. Mortgagor and all members of Mortgagor and all Guarantors are in compliance, and will remain in compliance, with the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 ("USA Patriot Act"). If Mortgagor is a corporation, partnership, limited liability company, trust, or other form of business entity, neither the execution and delivery of this Mortgage nor the performance of the provisions of the agreements herein contained on the part of Mortgagor will contravene, violate or constitute a default under the organizational and other governing instruments of such Mortgagor or result in the breach of any term or provision of, or conflict with or constitute a default under or result in the acceleration of any obligation under any agreement, indenture, loan or credit agreement or other instrument to which Mortgagor or the Premises is subject or result in the violation of any law, rule, regulation, order, judgment or decree to which Mortgagor or the Premises is subject. (g) If Mortgagor is an individual, neither the execution and delivery of this Mortgage nor the performance of the provisions of the agreements herein contained on the part of such Mortgagor will result in the breach of any term or provision of, or conflict with or constitute a default under or result in the acceleration of any obligation under any agreement, indenture, loan or credit agreement or other instrument to which Mortgagor or the Premises is subject or result in the violation of any law, rule, regulation, order, judgment or decree to which Mortgagor or the Premises is subject. (h) There are no: (i) bankruptcy proceedings involving Mortgagor or any Guarantor; (ii) dissolution proceedings involving Mortgagor or any Guarantor; (iii) unsatisfied judgments of record against Mortgagor or any Guarantor; or (iv) tax liens filed against Mortgagor or any Guarantor. (i) The Loan Documents have been duly executed and delivered by Mortgagor and constitute the legal, valid and binding obligations of Mortgagor, enforceable in accordance with their terms, except as to enforcement of remedies, as may be limited by bankruptcy, insolvency or similar laws affecting generally the enforcement of creditor's remedies. (j) There are no judgments, suits, actions or proceedings at law or in equity or by or before any governmental instrumentality or agency now pending against or, to the best of Mortgagor's knowledge, threatened against Mortgagor or its properties, or both, or against any Guarantor nor has any judgment, decree or order been issued against Mortgagor or its properties, or both, or against any Guarantor which would have a material adverse effect on the Premises or the financial condition of Mortgagor or Mortgagor's properties or any Guarantor, with the exception of any non-material claims of FIFTY THOUSAND and No/100 Dollars ($50,000.00) or less. (k) No consent or approval of any regulatory authority having jurisdiction over Mortgagor is necessary or required by law as a prerequisite to the execution, delivery and performance of the terms of the Loan Documents. (l) Any and all balance sheets, net worth statements and other financial statements and data which have heretofore been given to Mortgagee with respect to Mortgagor or any Guarantor fairly and accurately represent the financial condition of Mortgagor or such Guarantor as of the date thereof, and, since the effective date of such materials, there has been no material adverse change in the financial condition of Mortgagor or any Guarantor. (m) Mortgagor is not, as of the date hereof, in default in the payment of any of Mortgagor's obligations. No Guarantor is, as of the date hereof, in default in the payment of any of such Guarantor's obligations. (n) The Premises are free from any mechanics' or materialmen's liens or claims. There has been no labor or materials furnished to the Premises that has not been paid for in full. (o) Mortgagor has no notice, information or knowledge of any change contemplated in any applicable law, ordinance, regulation or restriction, or any judicial, administrative, governmental or quasi-governmental action, or any action by adjacent land owners, or natural or artificial condition existing upon the Premises which would limit, restrict or prevent the contemplated or intended use and purpose of the Premises. (p) There is no pending condemnation or similar proceeding affecting the Premises, or any portion thereof nor, to the best knowledge of Mortgagor, is any such action being presently contemplated. (q) No part of the Premises is being used or will be used principally, or at all, for agricultural or farming purposes. (r) The Premises is undamaged by fire, windstorm or other casualty. (s) Neither Mortgagor nor any affiliated entity has been the subject of foreclosure or insolvency proceedings. (t) Mortgagor is neither an "employee benefit plan" as defined under ERISA nor a "plan" as defined in Section 4975(e)(1) of the Internal Revenue Code, and the Premises do not constitute "plan assets" within the meaning of the Department of Labor Regulation Section 2510.3-101. (u) Mortgagor has complied with all requirements of the Americans with Disabilities Act, 42 U.S.C. Sections 12101-12213, as the same may be amended from time to time. (v) The Premises complies with all zoning ordinances, energy and environmental codes, building and use restrictions and codes, and any requirements with respect to licenses, permits and agreements necessary for the lawful use and operation of the Premises. (w) Except as otherwise specifically made known to Mortgagee by Mortgagor (in writing) prior to the date hereof, the heating, electrical, sanitary sewer plumbing, storm sewer plumbing, potable water plumbing and other building equipment, fixtures and fittings are in good condition and working order, are adequate in quantity and quality for normal and usual use, and are fit for the purposes intended and the use contemplated. Section 1.2. Continuing Obligation. Mortgagor further warrants and represents that all statements made hereunder are true and correct and that all financial statements, data and other information provided to Mortgagee by Mortgagor relating to or provided in connection with this transaction has not and does not contain any statement which, at the time and in the light of the circumstances under which it was made, would be false or misleading with respect to any material fact, or would omit any material fact necessary in order to make any such statement contained therein not false or misleading in any material respect, and since such statement, data or information was provided there has been no material change thereto or to the condition of Mortgagor. Should Mortgagor subsequently obtain knowledge that such representation was or is untrue, Mortgagor shall immediately notify Mortgagee as to the untrue nature of said representation and agrees to take such action as may be necessary to cause such representation to become true. ARTICLE II COVENANTS AND AGREEMENTS Mortgagor further covenants and agrees, for the benefit of Mortgagee (its successors and assigns), as follows: Section 2.1. Payment of Indebtedness; Observance of Covenants. Mortgagor will duly and punctually pay each and every installment of principal, premium, if any, and interest on the Note, all deposits required herein, and all other Indebtedness, as and when the same shall become due, and shall duly and punctually perform and observe all of the covenants, agreements and provisions contained herein, in the Note and any other Loan Documents, as such instrument may be amended, modified, restated and in effect from time to time. Section 2.2. Maintenance; Repairs. Mortgagor agrees that except with respect to the remediation of the "Existing Conditions" (as such term is used and defined in the Environmental Indemnity Agreement), if any, it will keep and maintain the Premises in good, first class condition, repair and operating condition free from any waste or misuse, and will comply with all requirements of law, municipal ordinances and regulations, restrictions and covenants affecting the Premises and their use, and will promptly repair or restore any buildings, improvements or structures now or hereafter on the Premises, which may become damaged or destroyed, to their condition prior to any such damage or destruction. Mortgagor further agrees that: (a) (except with respect to the remediation of the Existing Environmental Conditions, if any) without the prior written consent of Mortgagee, it will not remove or expand any improvements on the Premises, erect any new improvements or make any material alterations in any improvements which will alter the basic structure, adversely affect the market value or change the existing architectural character of the Premises; and (b) any other buildings, structures and improvements now or hereafter constructed on or in the Premises or repairs made to the Premises shall be completed in a good and workmanlike manner, in accordance with all applicable governmental laws, regulations, requirements and permits and in accordance with plans and specifications previously delivered to, and approved in advance and in writing by Mortgagee. Mortgagor agrees not to acquiesce in any rezoning classification, modification or restriction affecting the Premises without the written consent of Mortgagee. Mortgagor agrees that it will not abandon or vacate the Premises. Mortgagor agrees that it will provide, improve, grade, surface and thereafter maintain, clean, repair and adequately light all parking areas within the Premises, together with any sidewalks, aisles, streets, driveways and curb cuts and sufficient paved areas for ingress and right-of-way to and from the adjacent public thoroughfare necessary or desirable for the use thereof and maintain all landscaping thereon. Section 2.3. Payment of Operating Costs; Liens; and Other Indebtedness. Mortgagor agrees that it will pay all operating costs and expenses of the Premises, keep the Premises free from mechanics' liens, materialmen's liens, judgment liens and other liens, executions, attachments or levies (hereinafter collectively referred to as "Liens"); and will pay when due all permitted indebtedness which may be secured by a Mortgage, lien or charge on the Premises, whether prior to, subordinate to or of equal priority with the lien hereof, and upon request will exhibit to Mortgagee satisfactory evidence of such payment and discharge. Section 2.4. Payment of Impositions. Mortgagor will pay when due and before any penalty or interest attaches because of delinquency in payment, all taxes, installments of assessments, water charges, sewer charges, and other fees, taxes, charges and assessments of every kind and nature whatsoever assessed or charged against or constituting a lien on the Premises or any interest therein or the Indebtedness (hereinafter collectively referred to as the "Impositions"): and will upon demand furnish to Mortgagee proof of the payment of any such Impositions. In the event of a court decree or an enactment after the date hereof by any legislative authority of any law imposing upon a mortgagee the payment of the whole or any part of the Impositions herein required to be paid by Mortgagor, or changing in any way the laws relating to the taxation of mortgages or debts secured by mortgages or a mortgagee's interest in mortgaged premises, so as to impose such Imposition on Mortgagee or on the interest of Mortgagee in the Premises, then, in any such event, Mortgagor shall bear and pay the full amount of such Imposition, provided that if for any reason payment by Mortgagor of any such Imposition would be unlawful, or if the payment thereof would constitute usury or render the Indebtedness wholly or partially usurious, Mortgagee, at its option, may declare the whole sum secured by this Mortgage with interest thereon to be immediately due and payable, or Mortgagee, at its option, may pay that amount or portion of such Imposition as renders the Indebtedness unlawful or usurious, in which event Mortgagor shall concurrently therewith pay the remaining lawful and non-usurious portion or balance of said Imposition. Section 2.5. Contest of Liens and Impositions. Mortgagor shall have the right to contest in good faith the validity or amount of any Imposition or lien arising from any work performed at or materials furnished to the Premises which right, however, is conditional upon: (a) such contest having the effect of preventing the collection of the tax, assessment or lien so contested and the sale or forfeiture of the Premises or any part thereof or interest therein to satisfy the same; (b) Mortgagor giving Mortgagee written notice of its intention to contest the same in a timely manner, which, with respect to any contested tax or assessment, shall mean before any such tax, assessment or lien has been increased by any penalties or costs, and with respect to any contested mechanic's lien claim, shall mean within thirty (30) days after Mortgagor receives actual notice of the filing thereof; (c) Mortgagor making and thereafter maintaining with Mortgagee or such other depository as Mortgagee may designate, a deposit of cash (or United States government securities, in discount form, or other security as may, in Mortgagee's sole discretion, be acceptable to Mortgagee, and in either case having a present value equal to the amount herein specified) in an amount no less than One Hundred Fifty Percent (150%) of the amount which, in Mortgagee's reasonable opinion, determined from time to time, shall be sufficient to pay in full such contested tax, assessment or lien and penalties, costs and interest that may become due thereon in the event of a final determination thereof adverse to Mortgagor or in the event Mortgagor fails to prosecute such contest as herein required, or in lieu thereof, Mortgagor providing to Mortgagee title insurance over such matters in form and substance reasonably acceptable to Mortgagee; and (d) Mortgagor diligently prosecuting such contest by appropriate legal proceedings. In the event Mortgagor shall fail to prosecute such contest with reasonable diligence or shall fail to maintain sufficient funds, or other security as aforesaid, on deposit as hereinabove provided, Mortgagee may, at its option, liquidate the securities deposited with Mortgagee, and apply the proceeds thereof and other monies deposited with Mortgagee in payment of, or on account of, such taxes, assessments, or liens or any portion thereof then unpaid, including the payment of all penalties and interest thereon. Section 2.6. Protection of Security. Mortgagor agrees to promptly notify Mortgagee of and appear in and defend any suit, action or proceeding that affects the value of the Premises, the Indebtedness or the rights or interest of Mortgagee hereunder. Mortgagee may elect to appear in or defend any such action or proceeding and Mortgagor agrees to indemnify and reimburse Mortgagee from any and all loss, damage, expense or cost arising out of or incurred in connection with any such suit, action or proceeding, including costs of evidence of title and actual attorneys' fees. Section 2.7. Financial Statements. Intentionally Omitted. Section 2.8. Additional Assurances. Mortgagor agrees, and hereby authorizes Mortgagee to file on its behalf, upon request by Mortgagee to execute and deliver further instruments, replacement documents, correcting documents, financing statements and/or continuation statements under the Uniform Commercial Code and assurances and will do such further acts as may be necessary or proper to carry out more effectively the purposes of this Mortgage and to provide the requisite loan documentation, security and collateral as contemplated by the loan application or loan commitment submitted or issued in connection with the Loan and without limiting the foregoing, to make subject to the lien hereof any property agreed to be subjected hereto or covered by the granting clause hereof, or intended so to be. Mortgagor agrees to pay any recording fees, filing fees, stamp taxes or other charges arising out of or incident to the filing, the issuance and delivery of the Note, the filing or recording of this Mortgage or the delivery and recording of such further assurances and instruments as may be required pursuant to the terms of this Section. Section 2.9. Due on Sale or Mortgaging, etc. (a) In the event that without the written consent of Mortgagee being first obtained: (i) Mortgagor sells, conveys, transfers, further mortgages, changes the form of ownership, or encumbers or disposes of the Premises, or any part thereof, or any interest therein, or agrees to do so either directly or indirectly; or (ii) any ownership or beneficial interest in Mortgagor is sold, conveyed, transferred, pledged or encumbered or there is an agreement to do so either directly or indirectly; whether any such event described in (i) or (ii) above is voluntary, involuntary or by operation of law, either directly or indirectly, then at Mortgagee's sole option, Mortgagee may declare the Indebtedness immediately due and payable in full and call for payment of the same at once. (b) In the event Mortgagor shall request the consent of Mortgagee to any transfer in accordance with this Section 2.9, Mortgagor shall deliver a written request to Mortgagee together with complete information regarding such conveyance or encumbrance (including complete information concerning the person or entity to acquire the interest conveyed). Mortgagee shall be allowed thirty (30) days after receipt of all requested information for evaluation of such request. In the event that such request is not approved within such thirty (30) day period, it shall be deemed not approved. Mortgagee may charge an administrative fee to process any such sale, conveyance, transfer, Mortgage or other encumbrance. Approval may be conditioned upon payment of a transfer fee and such modifications of the loan terms, interest rate, and maturity date as determined by Mortgagee in its sole discretion. Consent as to any one transaction shall not be deemed to be a waiver of the right to require consent to future or successive transactions. (c) If the Premises should be transferred to a partnership, to a trust, to a privately held corporation or to a limited liability company pursuant to the terms of this **Section 2.9** during the term of this Mortgage, thereafter a subsequent transfer of a partnership interest, a beneficial interest, a corporate stock interest or a member interest in either the successor entity or in any entity which holds an ownership interest in such successor entity shall constitute a conveyance for purposes of this **Section 2.9**, and the consent of Mortgagee shall be required. **Section 2.10. Maintenance of Existence.** Mortgagor agrees to maintain its corporate existence in good standing under the laws of its State or Commonwealth of formation/incorporation (as applicable) and under the laws of the State or Commonwealth in which the Real Property is located, and not to dissolve, liquidate, wind-up, consolidate or merge during the term hereof, without, in each instance, the prior written consent of Mortgagee. Notwithstanding anything contained herein to the contrary and for so long as the Loan is outstanding, Mortgagor hereby represents, warrants and covenants to Mortgagee, that Mortgagor: (a) Mortgagor does not own and shall not own any asset or property other than (i) the Premises, and (ii) incidental personal property necessary for the ownership or operation of the Premises. (b) Mortgagor shall not engage in any business other than the ownership, management and operation of the Premises and Mortgagor will conduct and operate its business as presently conducted and operated. (c) shall not enter into any contract or agreement with any “Affiliate” (as such term is defined below) of Mortgagor, any constituent party of Mortgagor, any Guarantor, or any Affiliate of any constituent party or Guarantor, except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arms-length basis with third parties other than any such party; (d) has not incurred and shall not incur any indebtedness, secured or unsecured, direct or indirect, absolute or contingent (including guaranteeing any obligation), other than: (i) the Loan, (ii) unsecured trade and operational debt incurred in the ordinary course of business and (iii) debt incurred in the financing of equipment and other personal property used on the Premises, but, in no event, to exceed FIFTY THOUSAND and No/100 Dollars ($50,000.00). No indebtedness other than the Loan may be secured (subordinate or pari passu) by the Real Property; (e) has not made and will not make any loans or advances to any third party (including any Affiliate or constituent party, any Guarantor or any Affiliate of any constituent party or Guarantor), and shall not acquire obligations or securities of its Affiliates; (f) is solvent and reasonably expects to be able to pay its debts from its assets as the same shall become due; (g) has done or caused to be done and shall do all things necessary to observe organizational formalities and preserve its existence, and will not, nor will any partner, member, shareholder, trustee, beneficiary, or principal amend, modify or otherwise change any provision of such party's organizational documents which pertains to the subject matter of this Section 2.10; (h) shall continuously maintain its existence and right to do business in the state where the Real Property is located; (i) will conduct and operate its business as presently conducted and operated: (j) shall maintain all of its books, records, financial statements and bank accounts separate from those of its Affiliates and any constituent party of Mortgagor and shall file its own tax returns unless required otherwise by applicable law; (k) shall maintain its books, records, resolutions and agreements as official records; (l) shall be, and at all times shall hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate of Mortgagor, any constituent party of Mortgagor, any Guarantor or any Affiliate of any constituent party or Guarantor), shall correct any known misunderstanding regarding its status as a separate entity, shall conduct business in its own name, shall not identify itself or any of its Affiliates as a division or part of the other and shall maintain and utilize separate checks; (m) shall not, nor shall any constituent party, seek the dissolution, winding up, liquidation, consolidation or merger in whole or in part, of Mortgagor; (n) has and reasonably expects to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations; (o) shall not commingle the funds and other assets of Mortgagor with those of any Affiliate, constituent party, Guarantor, or any Affiliate of any constituent party or Guarantor, or any other person; (p) has and shall maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any Affiliate or constituent party, any Guarantor, or any Affiliate of any constituent party or Guarantor, or any other person; (q) does not and shall not guarantee, become obligated for, or hold itself out to be responsible for the debts or obligations of any other person or entity or the decisions or actions respecting the daily business or affairs of any other person or entity; (r) shall not permit any Affiliate, or any constituent party independent access to its bank accounts; (s) shall pay the salaries of its own employees and maintain a sufficient number of employees in light of its contemplated business operations; (l) shall not, nor shall any partner, member, shareholder, trustee, beneficiary or principal violate this Section 2.10 of the Mortgage. As used herein, the term "Affiliate" shall mean with respect to any entity any person or entity which directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, such entity. For purposes of this definition, "control" of an entity shall mean the power, direct or indirect: (i) to vote or direct the voting of 50% or more of the outstanding ownership interest of such entity, or (ii) to direct or cause the direction of the management and policies of such entity, whether by contract or otherwise. Section 2.11. Building Use. During the entire term of the Note and this Mortgage, Mortgagor agrees not to convert the Premises from its current use as of the date hereof to any other use (including, without limitation, conversion of the Premises to condominium units of any kind) without the prior written consent of Mortgagee (which may be withheld in its sole discretion). In that connection, Mortgagor covenants that the sale of units and/or recording of condominium documents on the Premises or any part thereof shall constitute an Event of Default hereunder. Section 2.12. Cross-collateralization; Mortgagee's Options. In addition to the Note, all liens, security interests, assignments, suretyship obligations, stock pledges, rights and remedies granted to the Mortgagee in the Loan Documents shall secure all obligations, debts and liabilities, plus interest thereon, of the Mortgagor, Guarantor(s) and any Affiliate to the Mortgagee, as well as Related Loans and claims by the Mortgagee against the Mortgagor, Guarantor(s) or any Affiliate whether now existing or hereafter arising, whether related or unrelated to the purpose of the Note, whether voluntary or otherwise, whether due or not due, direct or indirect, absolute or contingent, whether the Mortgagor or Affiliate 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 or 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. (a) Notwithstanding anything contained herein, in any of the other Loan Documents, or in any of the Related Loan Documents, Mortgagor hereby acknowledges and agree that: (i) This Mortgage by its terms secures, and for so long as it remains outstanding shall secure, the payment and performance (as applicable) of the Indebtedness, including without limitation, the repayment of the Loan and each of the Related Loans (if any): (ii) For all purposes of exercising its remedies herein, in any of the other Loan Documents, in any of the Related Loan Documents, or otherwise available at law, to the fullest extent permitted by law Mortgagee may elect, in its sole discretion and without further notice to Mortgagor, to treat the Loan and each (or any) of the Related Loans, and the Indebtedness (or any portion thereof), as either: (a) separate and independent obligations of Mortgagor (or its Affiliate, as applicable); or (b) as the integrated indebtedness of Mortgagor and its Affiliates. (b) Mortgagor hereby waives, to the fullest extent permitted by law, all rights to require Mortgagee to proceed against any Affiliate or any other Person (including without limitation, any guarantor of any of the Indebtedness), or to pursue any other right or remedy Mortgagee may now or hereafter have against any Affiliate or any other Person prior to exercise any one or more of its remedies against Mortgagor and/or with respect to the Premises. (c) Except to the extent consistent with an election made by Mortgagee pursuant to Section 2.12(a)(ii) above, no judgment obtained by Mortgagee in any proceeding enforcing any of the Loan Documents or any of the Related Loan Documents shall merge any of the Indebtedness into that judgment, and all Indebtedness that remains unpaid shall remain a continuing obligation of Mortgagor and any Affiliate. Notwithstanding any foreclosure of the Loan or any of the Related Loans, Mortgagor shall remain bound under this agreement. (d) To the extent the laws of the state of California apply to this Mortgage, any of the other Loan Documents, or any of the Related Loan Documents, Mortgagor hereby expressly waives any and all benefits under (i) California Code of Civil Procedure Section 580a (which Section, if this waiver had not been given, might otherwise limit Mortgagor's liability after a nonjudicial foreclosure sale to the difference between the obligations of Mortgagor under this Agreement and the fair market value of the property or interests sold at such nonjudicial foreclosure sale); (ii) California Code of Civil Procedure Sections 580b and 580d (which Sections, if this waiver had not been given, might otherwise limit Mortgagee's right to recover a deficiency judgment with respect to purchase money obligations and after a nonjudicial foreclosure sale, respectively); and (iii) California Code of Civil Procedure Section 726 (which Section, if this waiver had not been given, among other things, might otherwise require Mortgagee to exhaust all of its security before a personal judgment could be obtained for a deficiency). MORTGAGOR'S INITIALS: ________________ ARTICLE III INSURANCE AND ESCROWS Section 3.1. Insurance. (a) Mortgagor shall obtain and keep in full force and effect during the term of this Mortgage at its sole cost and expense the following insurance: (i) commercial property insurance written on a "Special (Cause of Loss) Form" basis with full replacement cost coverage and a covered event deductible not greater than Twenty-Five Thousand and No/100 Dollars ($25,000.00). In no event shall the property and improvements limit of the policy be less than the outstanding Principal Balance of the Loan (unless prohibited by applicable law). If applicable, coverage for terrorism (certified and non-certified), flood, mold, earthquake, sprinkler and sprinkler leakage and boiler/machinery breakdown are required if available at a commercially reasonable premium as determined by Mortgagee. Also, this policy shall provide coverage for loss of business income (including rental value) for a twelve (12) month period (with a loss payee clause naming Mortgagee). The insurance policy shall also include a mortgagee clause naming Mortgagee as loss payee in the event of a covered loss. (ii) commercial general liability insurance written on an "Occurrence Form" basis with coverage for bodily injury and property damage for claims arising from any insurable activity in, on or about the Premises. The limit of liability shall be not less than One Million and No/100 Dollars ($1,000,000.00) per occurrence/annual aggregate with a per occurrence deductible not greater than Twenty-Five Thousand and No/100 Dollars ($25,000.00). Insurer shall grant the Mortgagee additional insured status on this policy. (iii) all other appropriate insurance as Mortgagee may require from time to time and in the amount Mortgagee may require from time to time. (b) All insurance policies (and endorsements, as applicable) required hereunder or under any of the other Loan Documents shall: (i) have a waiver of subrogation provision acceptable to Mortgagee; (ii) be written by insurance companies licensed to do business in the State where the Premises are located, having a minimum noncontingent rating in Best's Key Rating Guide of A-, with a financial class size of VIII (8) or better and shall otherwise be satisfactory to Mortgagee as to amount, form, deductibles and insurer, and must cover all risks Mortgagee requires. Mortgagor shall replace any required insurance in the event of insurer's insolvency or if the financial rating of the insurer shall fall below the required rating; (iii) be manually signed (unless waived by Mortgagee in writing); (iv) name as the insured parties Mortgagor and Mortgagee as their interests may appear; (v) be in amounts sufficient to prevent Mortgagor from becoming a co-insurer of any loss thereunder (vi) shall bear a satisfactory first mortgagee clause in favor of Mortgagee with loss proceeds under any such policies to be made payable to Mortgagee and (unless otherwise waived by Mortgagee) shall expressly identify that Mortgagee's interest shall be noncontributory; (vii) contain such other endorsements as Mortgagee may require; (viii) shall be delivered to Mortgagee and shall provide that Mortgagee shall receive at least thirty (30) days' advance written notice prior to cancellation, amendment or termination of any such policy of insurance. (c) Mortgagor shall, within thirty (30) days prior to the expiration of any such policy, deliver other original policies of the insurer evidencing the renewal of such insurance together with evidence of the payment of current premiums therefore. Mortgagor shall at its expense furnish evidence of the replacement value of the improvements on the Premises in form satisfactory to Mortgagee on renewal of insurance policies or upon request of Mortgagee. Insurance coverage must at all times be maintained in proper relationship to such replacement value and must always provide for agreed amount coverage. Failure to maintain proper insurance shall be an Event of Default hereunder. In the event of a foreclosure of this Mortgage or any acquisition of the Premises by Mortgagee, all such policies and any proceeds payable therefrom, whether payable before or after a foreclosure sale, or during the period of redemption, if any, shall become the absolute property of Mortgagee to be utilized at its discretion. In the event of foreclosure or the failure to obtain and keep any required insurance, Mortgagor empowers Mortgagee to effect insurance upon the Premises at Mortgagor's expense and for the benefit of Mortgagee in the amounts and types aforesaid for such period of time as Mortgagee deems appropriate, including a period of time covering the time of redemption from foreclosure sale, and if necessary therefore, to cancel any or all existing insurance policies. Mortgagor agrees to furnish Mortgagee copies of all inspection reports and insurance recommendations received by Mortgagor from any insurer. Mortgagee makes no representations that the above insurance requirements are adequate protection for a prudent company. If a tenant of Mortgagor is required to maintain insurance under any lease terms and provisions, Mortgagee will accept such policy or policies, provided the same meet the requirements hereinabove recited. In the event that the tenant fails to maintain such insurance, Mortgagor will obtain the policy or policies required herein. Section 3.2. Escrows. Intentionally Omitted. ARTICLE IV UNIFORM COMMERCIAL CODE Section 4.1. Security Agreement. This Mortgage shall constitute a security agreement as defined in the Uniform Commercial Code in effect in the State or Commonwealth wherein the Premises are located, as amended from time to time ("Code"), and Mortgagor hereby grants to Mortgagee a security interest within the meaning of the Code in favor of Mortgagee on its interest in the Improvements, Fixtures, Equipment and Personal Property, the Rents, Leases and Profits, the Judgments, Condemnation Awards and Insurance Proceeds and Other Rights, the Licenses, Permits, Equipment Leases and Service Agreements and the Proceeds described in Granting Clauses B, C, D, E, and F of this Mortgage ("Collateral"). Section 4.2. Fixture Filing. As to those items of Collateral described in this Mortgage that are, or are to become fixtures related to the real estate mortgaged herein, and all products and proceeds thereof, it is intended as to those items that THIS MORTGAGE SHALL BE EFFECTIVE AS A FINANCING STATEMENT FILED AS A FIXTURE FILING from the date of its filing in the real estate records of the County where the Premises are situated. This document covers goods which are or are to become fixtures. The name and address of the record owner of said real estate is Mortgagor set forth in Page 1 to this Mortgage. Information concerning the security interest created by this instrument may be obtained from Mortgagee, as secured party, at its address as set forth in Page 1 of this Mortgage. The name and address of Mortgagor, as debtor, is as set forth in Page 1 to this Mortgage. Except as specifically disclosed by Mortgagor to Mortgagee prior to the execution of this Mortgage, during the five (5) years and six months prior to the date of this Mortgage, Mortgagor has not been known by any legal name different from the one set forth in the first paragraph of this Mortgage, nor has Mortgagor been the subject of any merger, consolidation or other organizational reorganization during such period of time. Mortgagor hereby authorizes Mortgagee to cause any financing statement or fixture filing to be filed or recorded without the necessity of any signature of Mortgagor on such financing statement or fixture filing. This documents covers good which are or to become fixtures. The Mortgagor, as debtor, is a Limited Liability Company organized under the laws of the State of Texas. The Debtor's organizational number is 32065237540. Section 4.3. Representations and Agreements. Mortgagor represents and agrees: (a) Mortgagor is and will be the true and lawful owner of the Collateral, subject to no liens, charges, security interest and encumbrances other than the lien hereto and the Permitted Encumbrances; (b) the Collateral is to be used by Mortgagor solely for business purposes being installed upon the Premises for Mortgagor's own use or as the equipment and furnishings leased or furnished by Mortgagor, as landlord, to tenants of the Premises; (c) the Collateral will not be removed from the Premises without the consent of Mortgagee except in accordance with Section 4.4 hereof; (d) unless stated otherwise in this Mortgage the only persons having any interest in the Collateral are Mortgagor and Mortgagee and no financing statement covering any such property and any proceeds thereof is on file in any public office except pursuant hereto; (e) the remedies of Mortgagee hereunder are cumulative and separate, and the exercise of any one or more of the remedies provided for herein or under the Code shall not be construed as a waiver of any of the other rights of Mortgagee including having such Collateral deemed part of the realty upon any foreclosure thereof; (f) if notice to any party of the intended disposition of the Collateral is required by law in a particular instance, such notice shall be deemed commercially reasonable if given at least ten (10) days prior to such intended disposition and may be given by advertisement in a newspaper accepted for legal publications either separately or as part of a notice given to foreclose the real property or may be given by private notice if such parties are known to Mortgagee; (g) Mortgagor will from time to time provide Mortgagee on request with itemizations of all such Collateral on the Premises; (h) the filing of a financing statement pursuant to the Code shall never impair the stated intention of this Mortgage that all Improvements, Fixtures, Equipment and Personal Property described in Granting Clause B hereof are, and at all times and for all purposes and in all proceedings both legal or equitable shall be regarded as part of the real property mortgaged hereunder irrespective of whether such item is physically attached to the real property or any such item is referred to or reflected in a financing statement; (i) Mortgagor will on demand deliver all financing statements and/or continuations that may from time to time be required by Mortgagee to establish and perfect the priority of Mortgagee's security interest in such Collateral and all costs, including recording fees, shall be paid by Mortgagor; (j) Mortgagor shall give Mortgagee at least thirty (30) days prior written notice of any proposed change in Mortgagor's name, identity, state of registration for a registered organization, principal place of business, or structure and authorizes Mortgagee to file prior to or concurrently with such change all additional financing statements that Mortgagee may require to establish and perfect the priority of Mortgagee's security interest in the Collateral; and (k) by signing this Mortgage, Mortgagor authorizes Mortgagee to file such financing statements, either before, on or after the date hereof, as Mortgagee determines necessary or desirable to perfect the lien of Mortgagee's security interest in the Collateral. Mortgagor further authorizes Mortgagee to file such amendments or continuation statements as Mortgagee determines necessary or desirable from time to time to perfect or continue the lien of Mortgagee's security interest in the Collateral. Section 4.4. Maintenance of Premises. Subject to the provisions of this Section, in any instance where Mortgagor in its discretion determines that any item subject to a security interest under this Mortgage has become inadequate, obsolete, worn out, unsuitable, undesirable or unnecessary for the operation of the Premises, Mortgagor may, at its expense, remove and dispose of it and substitute and install other items not necessarily having the same function, provided, that such removal and substitution shall be of comparable quality and shall not impair the operating utility and unity of the Premises. All substituted items shall become a part of the Premises and subject to the lien of this Mortgage. Any amounts received or allowed Mortgagor upon the sale or other disposition of the removed items of property shall be applied only against the cost of acquisition and installation of the substituted items. Nothing herein contained shall be construed to prevent any tenant or subtenant from removing from the Premises trade fixtures, furniture and equipment installed by it and removable by such tenant under its terms of the lease. on the condition, however, that all damages to the Premises resulting from or caused by the removal thereof be repaired at the sole cost of Mortgagor if such tenant shall fail to so repair. Section 4.5. Pledge of Monies Held. Mortgagor hereby pledges to Mortgagee any and all monies now or hereafter held by Mortgagee or its servicing agent or escrow agent, including, without limitation, any sums deposited in the account for Charges in accordance with Section 3.2 hereof, any net Insurance Proceeds or condemnation awards deposited with Mortgagee in accordance with Sections 5.1 and 5.2 hereof (collectively, "Deposits"), as additional security for the Indebtedness until expended or applied as provided in this Mortgage. ARTICLE V APPLICATION OF INSURANCE AND AWARDS Section 5.1. Damage or Destruction of the Premises. Mortgagor will give Mortgagee prompt notice of any damage to or destruction of the Premises, and hereby assigns, transfers, and sets over to Mortgagee the entire amount of Insurance Proceeds (hereinafter defined) for damages for all or any part of the Premises and in case of loss covered by policies of insurance, Mortgagee (whether before or after foreclosure sale) is hereby authorized at its option to settle and adjust any claim arising out of such policies and collect and receipt for the proceeds payable therefrom (the "Insurance Proceeds"). Upon receipt by Mortgagor of any Insurance Proceeds from an Insured Casualty, Mortgagor shall deliver the same to Mortgagee to be held and applied pursuant to the provisions of this Article 5. Any restoration, repair or rebuilding of the Improvements upon the Premises shall be to the same condition as prior to the Insured Casualty. Any expense incurred by Mortgagee in the adjustment and collection of Insurance Proceeds (including the cost of any independent appraisal of the loss or damage on behalf of Mortgagee) shall be reimbursed to Mortgagee first out of any such Insurance Proceeds. Except as specifically provided in Section 5.3 below, the Insurance Proceeds or any part thereof shall be applied to reduction of the Indebtedness then most remotely to be paid, whether due or not, or to the restoration or repair of the Premises, the choice of application to be solely at the discretion of Mortgagee. Section 5.2. Condemnation. Mortgagor will give Mortgagee prompt notice of any action, actual or threatened, in Condemnation (as defined herein) or eminent domain and hereby assigns, transfers, and sets over to Mortgagee the entire proceeds of any award or claim for damages for all or any part of the Premises taken or damaged under the power of eminent domain or condemnation ("Condemnation"), Mortgagee being hereby authorized to intervene in any such action and to collect and receive from the condemning authorities and give proper receipts and acquittances for such proceeds. Mortgagor will not enter into any agreements with the condemning authority permitting or consenting to the taking of the Premises unless prior written consent of Mortgagee is obtained. Any expenses incurred by Mortgagee in intervening in such action or collecting Condemnation proceeds (including the cost of any independent appraisal) shall be reimbursed to Mortgagee first out of the Condemnation proceeds prior to other payments or disbursements. Mortgagor shall deliver all Condemnation proceeds to Mortgagee within five (5) days of receipt thereof and shall at Mortgagee's request direct the condemning authority to deliver the Condemnation proceeds to Mortgagee. The Condemnation proceeds or any part thereof shall be applied upon or in reduction of the Indebtedness then most remotely to be paid, whether due or not, or to the restoration or repair of the Premises, the choice of application to be solely at the discretion of Mortgagee. Section 5.3, Mortgagee to Make Insurance Proceeds Available Under Certain Conditions. Notwithstanding the provisions of Section 5.1 above, in the event of any insured damage or destruction of the Premises or any part thereof (hereinafter an "Insured Casualty") and if, in the reasonable judgment of Mortgagee, the Premises can be restored to an architectural and economic unit of the same character and not less valuable than the same was prior to the Insured Casualty, then Mortgagee shall make the insurance proceeds (the "Insurance Proceeds") available to Mortgagor for purposes or repairing and restoring the Premises, in accordance with the provisions of Section 5.4 hereof, provided: (a) The Improvements at the Premises can be restored to a complete architectural unit pursuant to plans and specifications acceptable to Mortgagee such that in Mortgagee's opinion the Premises and the Improvements have the same economic value and use after repair or restoration as prior to the Insured Casualty. (b) The insurers do not deny liability to the insured and the Insurance Proceeds are not paid by the insurer with reservation of rights. (c) The Insurance Proceeds are sufficient to complete such repair or restoration, or Mortgagor deposits with Mortgagee prior to commencing repair or restoration such additional amount as is necessary to assure completion. (d) Disbursement of Insurance Proceeds is made pursuant to prudent construction lending procedures as reasonably determined by Mortgagee as set out below. At Mortgagee's election, the disbursements may be administered by the title insurer (or its agent) that issued the Mortgagee's Title Insurance Policy. (e) The Insurance Proceeds shall be held by Mortgagee without interest, or at its option, deposited in a time deposit account of a financial institution whose accounts are insured by the Federal Deposit Insurance Corporation or the National Credit Union Share Insurance Fund (NCUSIF) with immediate withdrawal rights. (f) Mortgagee must receive adequate evidence at the time of disbursement that the cost of restoration has been incurred or paid and shall be given such lien protection as Mortgagee shall require including lien waivers and an endorsement to Mortgagee's title policy. (g) No event of default under the terms of the Note, this Mortgage or the Loan Documents then exists beyond any applicable grace period provided for cure of the same in the Note, this Mortgage or the Loan Documents. (h) Mortgagor shall pay any administrative expenses Mortgagee incurs related to the casualty including any such expenses for title insurance, administration of disbursements, inspections, architect's or attorney's fees. (i) Intentionally Omitted. (j) The restoration or repair shall be done under the supervision of an architect acceptable to Mortgagee and pursuant to plans and speciflcations approved by Mortgagee. (k) The minimum appraised value of the Improvements as determined by a state certified appraiser acceptable to and approved by Mortgagee, after such restoration or repair shall result in a loan to value ratio not to exceed Forty-Five percent (45%). (l) No right to use insurance proceeds for restoration shall be applicable during the six (6) months prior to the Maturity Date of the Note. Section 5.4. Disbursement of Insurance and Condemnation Proceeds. Should any insurance or condemnation proceeds be applied to the restoration or repair of the Premises in accordance with this Article 5, the restoration or repair shall be done under the supervision of an architect acceptable to Mortgagee and pursuant to site and building plans and specifications approved by Mortgagee. The proceeds shall be held by Mortgagee for such purposes and will from time to time be disbursed by Mortgagee through a title company or other servicing agent acceptable to Mortgagee to defray the costs of such restoration or repair under such safeguards and controls as Mortgagee may require and in accordance with standard construction loan procedures. All costs and expenses associated with the disbursement of such proceeds shall be paid by Mortgagor. Prior to the payment or application of Insurance Proceeds or a condemnation or eminent domain award to the repair or restoration of the improvements upon the Premises, Mortgagee shall be entitled to receive the following: (a) Evidence that no Event of Default exists under any of the terms, covenants and conditions of this Mortgage, the Note, or other collateral security documents. (b) Evidence that all requirements set out in Section 5.3 have been met. (c) Satisfactory proof that such improvements will be fully restored free and clear of all liens, except the lien of this Mortgage. In the event such Insurance Proceeds or eminent domain award shall be insufficient to repair, restore or rebuild the said improvements, Mortgagor or its lessee shall deposit with Mortgagee, or a title company designated by Mortgagee, funds equaling such deficiency, which, together with the Insurance Proceeds or eminent domain award, shall be sufficient to restore, repair and rebuild the Premises. (d) A statement of Mortgagor's architect, certifying the extent of the repair and restoration completed to the date thereof, and that such repairs, restoration and rebuilding have been performed to date in conformity with the plans and specifications approved by Mortgagee, together with appropriate evidence of payment for labor or materials furnished to the Premises, and total or partial lien waivers substantiating such payments. (e) A waiver of subrogation from any insurer who claims that it has no claim as to Mortgagor or the then owner or other insured under the policy of insurance in question. (f) Such performance and payment bonds, and such insurance, in such amounts, issued by such company or companies and in such forms and substance, as are required by Mortgagee. In the event Mortgagor shall fail to commence and diligently pursue the restoration, repair or rebuilding of the improvements upon the Premises, then Mortgagee, at its option, and upon not less than thirty (30) days written notice to Mortgagor, may commence to restore, repair or rebuild the said improvements for or on behalf of said Mortgagor, and its tenants, and for such purpose, may perform all necessary acts to accomplish such restoration, repair or rebuilding. In the event Insurance Proceeds or an eminent domain award shall exceed the amount necessary to complete the repair, restoration or the rebuilding of the improvements upon the Premises, such excess may, at Mortgagee's option, be applied on account of the last maturing installments of the Indebtedness, or be returned to Mortgagor. In the event Mortgagor shall fail to commence and diligently pursue the restoration, repair or rebuilding of the improvements upon the Premises, and if Mortgagee does not restore, repair or rebuild the said improvements as herein provided, then Mortgagee may, at its option, apply all or any part of the Insurance Proceeds or condemnation or eminent domain award on account of the last maturing installments of the Indebtedness whether then due or not. ARTICLE VI LEASES AND RENTS Section 6.1. Leases. Mortgagor will, at its own cost and expense, perform, comply with and discharge all of the obligations of Mortgagor under any leases and use its best efforts to enforce or secure the performance of each obligation and undertaking of the respective tenants under any such leases and will appear in and defend, at its own cost and expense, any action or proceeding arising out of or in any manner connected with Mortgagor's interest in any leases of the Premises. Mortgagor will not borrow against, pledge or assign any rentals due under the leases, nor consent to a subordination or assignment of the interest of the tenants thereunder to any party other than Mortgagee, nor anticipate the rents thereunder for more than one (1) month in advance or reduce the amount of rents and other payments thereunder without the prior written consent of Mortgagee. A Permitted Lease is any Lease between Mortgagor and a tenant which (a) uses the standard form lease which has been delivered to and approved by the Mortgagee as the basis for all new Permitted Leases or renewals of existing Leases which would otherwise qualify as Permitted Leases without material modification unless such material modification has been approved in writing by the Mortgagee; (b) is for less than Ten percent (10%) of the square footage area of the Premises; (c) is for a term of Five (5) years or less (with no renewal options); (d) as to which Mortgagee is promptly furnished with a fully executed copy following execution thereof by Mortgagor and the named tenant and (e) is with an Arm's Length Tenant. As to any Lease which is not a Permitted Lease, the Mortgagor agrees that it will not modify, extend, renew, terminate, accept a surrender of or in any way alter the terms of such Leases nor waive, excuse, condone or in any manner release or discharge the tenants of or from their obligations, covenants and agreements to be performed without the prior written consent of the Mortgagee. Mortgagor will not enter into any additional Leases which are not Permitted Leases of all or any portion of the Premises without the prior written consent of the Mortgagee. Mortgagor may enter into and amend Permitted Leases without the prior written consent of Mortgagee on the conditions set out above. In addition, Mortgagor covenants and agrees that, with respect to all Leases: (a) it shall lease all space on the Premises at market rental rates unless approved in writing by the Mortgagee and (b) any action taken with respect to any lease shall be taken in the ordinary course of Mortgagor's business in conformance with commercially reasonable, prudent and sound business practice. Mortgagor will deliver copies of all Lease amendments and new Leases to Mortgagee within thirty (30) days after execution whether or not the prior written consent of the Mortgagee was required for such amendment or new lease. Mortgagee's approval of any new Lease or amendment for which Mortgagee's approval is required shall be deemed granted unless Mortgagee objects in writing within five (5) business days after Mortgagee's receipt of the proposed Lease or amendment. Section 6.2. Mortgagee's Right to Perform Under Leases. Should Mortgagor fail to perform, comply with or discharge any obligations of Mortgagor under any lease of all or any part of the Premises or should Mortgagee become aware of or be notified by any tenant under any such lease of a failure on the part of Mortgagor to so perform, comply with or discharge its obligations under said lease, Mortgagee may, but shall not be obligated to, and without further demand upon Mortgagor and without waiving or releasing Mortgagor from any obligation contained in this Mortgage, remedy such failure, and Mortgagor agrees to repay upon demand all sums incurred by Mortgagee in remedying any such failure including, without limitation, Mortgagee's attorneys' fee together with interest at the Default Rate. All such sums, together with interest as aforesaid shall become so much additional Indebtedness, but no such advance shall be deemed to relieve Mortgagor from any default hereunder. Section 6.3. Assignment of Leases and Rents. (a) Mortgagor does hereby unconditionally and absolutely sell, assign and transfer unto Mortgagee all of the leases, rents, issues, income and profits now due and which may hereafter become due under or by virtue of any lease, whether written or verbal, or any agreement or license for the use or occupancy of the Premises, whether now existing or entered into at any time during the term of this Mortgage, all guaranties of any lessee's obligations under any such lease and all security deposits, it being the intention of this Mortgage to establish an absolute transfer and assignment of all such leases and agreements and all of the rents and profits from the Premises and/or Mortgagor’s operation or ownership thereof unto Mortgagee and Mortgagor does hereby appoint irrevocably Mortgagee as Mortgagor’s true and lawful attorney in Mortgagor’s name and stead, which appointment is coupled with an interest, to collect all of said rents and profits; provided, Mortgagor is hereby given a license by Mortgagee to collect and retain such rents and profits unless and until an Event of Default exists under this Mortgage. Mortgagor assigns to Mortgagee all guarantees of lessee’s obligation under leases and all proceeds from settlements relating to terminations of leases and all claims for damages arising from rejection of any lease under the bankruptcy laws. Upon the occurrence of an Event of Default and whether before or after the institution of legal proceedings to foreclose the lien hereof or before or after sale thereunder or during any period of redemption existing by law, forthwith, upon demand of Mortgagee, Mortgagor shall surrender to Mortgagee and Mortgagee shall be entitled to enter upon and take and maintain possession of the Premises and any leases thereunder and collect and retain any rents and profits from the Premises and hold, operate, manage and control the Premises and any such leases and to do such things in its discretion as may be deemed proper or necessary to enforce the payment or security of the rents and profits of the Premises and the performance of the tenants’ obligations under any leases of the Premises, with full power to cancel or terminate any lease for any cause or on any grounds which would entitle Mortgagor to cancel the same and to elect to disaffirm any lease made subsequent to this Mortgage or subordinated to the lien hereof. All rents and payments received by Mortgagor after Mortgagee has exercised any of its rights under this assignment shall be held by Mortgagor in trust for Mortgagee and shall be delivered to Mortgagee immediately without demand. (b) Mortgagee shall not be obligated to perform or discharge any obligation or liability of the landlord under any of said leases and Mortgagor shall and does hereby agree to indemnify and hold Mortgagee harmless of and from any and all expenses, liability, loss or damage which it might incur under said leases or under or by reason of this Mortgage. Any amounts incurred by Mortgagee in connection with its rights hereunder, including costs, expenses and actual attorneys’ fees, shall bear interest thereon at the Default Rate, shall be additional Indebtedness and Mortgagor shall reimburse Mortgagee therefor immediately upon demand. Mortgagee may apply any of said rents and profits received to the costs and expenses of collection, including receivers' fees and actual attorneys' fees, to the payment of taxes, assessments and insurance premiums and expenditures for the upkeep of the Premises, to the performance of the landlord's obligations under the lease, to the performance of any of Mortgagor's covenants hereunder, and to any Indebtedness in such order as Mortgagee may determine. The entering upon and taking possession of the Premises, the collection of such rents and profits and the application thereof as aforesaid shall not cure or waive any Event of Default under this Mortgage nor in any way operate to prevent Mortgagee from pursuing any other remedy which it may now or hereafter have under the terms of this Mortgage nor shall it in any way be deemed to constitute Mortgagee a mortgagee-in-possession. The rights hereunder shall in no way be dependent upon and shall apply without regard to whether the Premises are in danger of being lost, materially injured or damaged or whether the Premises are adequate to discharge the Indebtedness. Mortgagor represents and agrees that no rent has been or will be paid by any person in possession of any portion of the Premises for more than one installment in advance and that the payment of none of the rents to accrue for any portion of the Premises has been or will be waived, released, reduced, discounted, or otherwise discharged or compromised by Mortgagor. Mortgagor waives any right of set off against any person in possession of any portion of the Premises. Mortgagor further agrees that Mortgagor will not execute or agree to any subsequent assignment of any of the rents or profits from the Premises without the prior written consent of Mortgagee. The rights contained herein are in addition to and shall be cumulative with the rights given in that certain Assignment of Leases and Rents (as the same may be amended, modified, restated or replaced from time to time, the "Assignment of Leases") dated of even date herewith from Mortgagor to Mortgagee, assigning any leases, rents and profits of the Premises. To the extent inconsistent with the terms of this Article 6, the terms of the Assignment of Leases shall control. ARTICLE VII RIGHTS OF MORTGAGEE Section 7.1. No Claim Against Mortgagee. Nothing contained in this Mortgage shall constitute any consent or request by Mortgagee, express or implied, for the performance of any labor or services or for the furnishing of any materials or other property in respect of the Premises or any part thereof, nor as giving Mortgagor or any party in interest with Mortgagor any right, power or authority to contract for or permit the performance of any labor or services or the furnishing of any materials or other property in such fashion as would create any personal liability against Mortgagee in respect thereof or would permit the making of any claim that any lien based on the performance of such labor or services or the furnishing of any such materials or other property in such fashion as would create any personal liability against Mortgagee in respect thereof or would permit the making of any claim that any lien based on the performance of such labor or services or the furnishing of any such materials or other property is prior to the lien of this Mortgage. Section 7.2. Inspection. Mortgagee or its authorized representatives shall have the right to enter the Premises at all times during normal business hours for the purpose of inspecting the same; provided Mortgagee shall have no duty to make such inspections and shall not incur any liability or obligation for making or not making any such inspections. Section 7.3. Dishonored Payments. In the event any funds for any two (2) or more monthly payments in any twelve (12) month period are not paid to Mortgagee when due, Mortgagee shall have the right, at its sole option, to require that all future payments be made in a form other than as is presently prescribed in the Note. For example, Mortgagee may at any time require payment by preauthorized Automated Clearinghouse transaction, by certified check, by wire transfer or other method of delivering immediately available funds. Section 7.4. Releases; Resort to Other Security. Without affecting the liability of any party liable for payment of any Indebtedness or performance of any obligation contained herein and without affecting the rights of Mortgagee with respect to any security not expressly released in writing, Mortgagee shall have the right, at any time and without notice to or the consent of Mortgagor or any party in interest with respect to the Premises or the Note, to: (a) release any person liable for payment of all or any part of the Indebtedness or for performance of any obligation herein; (b) make any agreement extending the time or otherwise altering the terms of payment of all or any part of the Indebtedness or modifying or waiving any obligation, or subordinating, modifying or otherwise dealing with the lien or charge hereof; (c) accept any additional security; (d) release or otherwise deal with any property, real or personal, including any or all of the Premises, including making partial releases of the Premises; or (e) resort to any security agreements, pledges, contracts of guarantee, assignments of rents and leases or other securities, and exhaust any one or more of said securities and the security hercunder, either concurrently or independently and in such order as it may determine. Section 7.5. Waiver of Appraisement, Homestead, Marshaling. Mortgagor hereby waives to the full extent lawfully allowed the benefit of any homestead, appraisement, evaluation, stay and extension laws now or hereinafter in force. Mortgagor hereby waives any rights available with respect to marshaling of assets so as to require the separate sales of any portion of the Premises, or as to require Mortgagee to exhaust its remedies against a specific portion of the Premises before proceeding against the other and does hereby expressly consent to and authorize the sale of the Premises or any part thereof as a single unit or parcel. To the extent permitted by applicable law, Mortgagor, on behalf of Mortgagor and all other persons or entities acquiring any interest in the Premises subsequent to the date of this Mortgage, also hereby waives any and all rights of reinstatement and redemption from sale under any order or decree of foreclosure pursuant to rights herein granted. ARTICLE VIII EVENTS OF DEFAULT AND REMEDIES Section 8.1. Events of Default. The occurrence of any of the following shall be deemed an event of default under this Mortgage (each hereinafter referred to as an "Event of Default"): (a) Any principal, interest, or other payment payable under the terms of the Note is not paid on or before the fifth (5th) day after the date the same is due (whether at the stated maturity or at a date fixed for any installment payment or any accelerated payment date or otherwise); or (b) Any other sum of money required to be paid pursuant to the terms of the Note, this Mortgage or any other Loan Document is not paid on the date the same is due and such default is not remedied within five (5) business days after notice thereof by Mortgagee; or (c) Mortgagor shall fail to comply with any non-monetary term, covenant or condition of the Note, this Mortgage or any other Loan Document other than a default described in Sections 8.1(a), 8.1(b) and 8.1(d) through 8.1(i) and such default shall continue for a period of thirty (30) days after written notice to Mortgagor from Mortgagee specifying the nature of such default; provided, however, that if such default is of a nature that it cannot be cured, in Mortgagee's good faith reasonable discretion, within such thirty (30) day period, then Mortgagor shall not be in default hereunder if it commences good faith efforts to cure the default within such thirty (30) day period, demonstrates continuous diligent efforts to cure the default in a manner satisfactory to Mortgagee and, within a reasonable time, not to exceed ninety (90) days after the date of the original written notice of default, completes the cure of such default; or (d) Mortgagor shall fail to comply with any term, covenant or condition contained in Sections 2.9, 2.10 or 3.1 of this Mortgage; or (e) Any representation or warranty made to Mortgagee by or on behalf of Mortgagor, any person or entity holding an ownership interest in Mortgagor (individually and collectively, if more than one, "Principal") or any Guarantor by execution of a guaranty in connection with Loan secured hereby proves to be untrue; or (f) If: (i) Mortgagor or any Guarantor shall commence any case, proceeding or other action (A) under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency or relief of debtors, seeking to have an order for relief entered with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization, adjustment, liquidation, dissolution or other relief with respect to it or its debts, or (B) seeking appointment of a receiver, trustee, custodian or other similar official for it or for all or any substantial part of its assets, or Mortgagor, any Principal or any Guarantor shall make a general assignment for the benefit of its creditors; or (ii) there shall be commenced against Mortgagor, any Principal or any Guarantor any case, proceeding or other action of a nature referred to in clause (i) above which (A) results in the entry of an order for relief or any such adjudication or appointment or (B) remains undismissed or undischarged for a period of sixty (60) days; or (iii) there shall be commenced against Mortgagor, any Principal or any Guarantor any case, proceeding or other action seeking issuance of a warrant of attachment, execution, distraint or similar process against all or any substantial part of its assets which results in the entry of any order for any such relief which shall not have been vacated, discharged, or stayed or bonded pending appeal within sixty (60) days from the entry thereof; or (iv) Mortgagor, any Principal or any Guarantor shall take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in clause (i), (ii), or (iii) above; or (v) Mortgagor, any Principal or any Guarantor shall generally not, or shall be unable to, or shall admit in writing its inability to, pay its debts as they become due; or (g) Any judgment in excess of FIFTY THOUSAND and No/100 Dollars ($50,000.00) is entered in any court against Mortgagor or any Guarantor and is not satisfied in full within thirty (30) days after all rights to appeal from the same have expired, or any writ of execution or attachment or similar process is issued or levied against any part of the Premises or any interest therein; or (h) Any Guarantor shall fail to comply with any term, covenant or condition of the Environmental Indemnity or the Guaranty, which default shall have extended beyond any period of grace provided therein; or (i) Any Guarantor shall die and Mortgagor either (i) has failed to notify Mortgagee of such death within thirty (30) days thereof or (ii) has failed to provide Mortgagee with an acceptable substitute guarantor, in the sole judgment of Mortgagee, who shall have executed a guaranty and an environmental indemnity agreement in the forms of those executed by the Guarantors, before the earlier to occur of (A) ninety (90) days from the date of such person's death or (B) the date on which the first distribution of assets has been made from such person's estate to any devisee, heir or other beneficiary. Section 8.2. Remedies. Upon the occurrence of any Event of Default, Mortgagor agrees that Mortgagee may take such action, without notice or demand, as it deems advisable to protect and enforce its rights against Mortgagor and in and to the Premises, including, but not limited to, the following actions, each of which may be pursued concurrently or otherwise, at such time and in such order as Mortgagee may determine, in its sole discretion, without impairing or otherwise affecting the other rights and remedies of Mortgagee: (a) declare the entire unpaid principal balance of the Note together with all other Indebtedness to be immediately due and payable, which unpaid sums shall bear interest at the Default Rate from the due date until paid; and/or (b) with or without entry, institute proceedings, by judicial action, advertisement or such other statutory procedures as are available in the state where the Premises is located, for the complete or partial foreclosure of this Mortgage under any applicable provision of law in which case the Premises or any interest therein may be sold for cash or upon credit in one or more parcels or in several interests or portions and in any order or manner, any partial foreclosure to be subject to the continuing lien and security interest of this Mortgage for the balance of the Indebtedness not then due, unimpaired and without loss of priority; and/or (c) sell for cash or upon credit the Premises or any part thereof and all estate, claim, demand, right, title and interest of Mortgagor therein and rights of redemption thereof: (i) without judicial foreclosure, pursuant to the Oklahoma Power of Sale Mortgage Foreclosure Act, 46 O.S. §40 et seq., and any acts amendatory thereto, (ii) pursuant to judicial decree, or (iii) otherwise, at one or more sales, as an entirety or in one or more parcels. Mortgagor hereby waives and relinquishes any right to have the fair market value of the Premises determined by a judge or jury in any action seeking a deficiency judgment or any action on the Indebtedness secured hereby, including, without limitation, a hearing to determine fair market value pursuant to §12 O.S. §686; and/or (d) institute an action, suit or proceeding in equity for the specific performance of any covenant, condition or agreement contained herein, in the Note or in the other Loan Documents; and/or (e) recover judgment on the Note either before, during or after any proceedings for the enforcement of this Mortgage or the other Loan Documents; and/or (f) apply for the appointment of a receiver, trustee, liquidator or conservator of the Premises, without notice and without regard for the adequacy of the security for the Indebtedness and without regard for the solvency of Mortgagor, any principal or any Guarantor or of any other person, firm or other entity liable for the payment of the Indebtedness in accordance with and in the manner prescribed by applicable law in the state where the Premises is located and in accordance with the terms of Section 8.5 below; and/or (g) enter into or upon the Premises, either personally or by its agents, nominees or attorneys and dispossess Mortgagor and its agents and servants therefrom without liability for trespass, damages or otherwise and exclude Mortgagor and its agents or servants wholly therefrom, and take possession of all books, records and accounts relating thereto and Mortgagor agrees to surrender possession of the Premises and of such books, records and accounts to Mortgagee upon demand, and thereupon Mortgagee may exercise all rights and powers of Mortgagor with respect to the Premises including, without limitation: (i) the right to use, operate, manage, control, insure, maintain, repair, restore and otherwise deal with all and every part of the Premises and conduct the business thereat; and/or (ii) the right to make or complete any construction, alterations, additions, renewals, replacements and improvements to or on the Premises as Mortgagee deems advisable; and/or (iii) the right to make, cancel, enforce or modify Leases, obtain and evict tenants, and demand, sue for, collect and receive all rents of the Premises and every part thereof; (h) require Mortgagor to pay monthly in advance to Mortgagee, or any receiver appointed to collect the rents, the fair and reasonable rental value for the use and occupation of such part of the Premises as may be occupied by Mortgagor; and/or (i) require Mortgagor to vacate and surrender possession of the Premises to Mortgagee or to such receiver and, in default thereof, Mortgagor may be evicted by summary proceedings or otherwise; and/or (j) apply the receipts from the Premises, any Charges and interest thereon and/or any unearned Insurance Premiums paid to Mortgagee upon the surrender of any insurance policies maintained pursuant to Section 3.1 herof (it being agreed that Mortgagee shall have the right to surrender such insurance policies upon the occurrence of an Event of Default), to the payment of the Indebtedness, in such order, priority and proportions as Mortgagee shall deem appropriate in its sole discretion; and/or (k) exercise any and all rights and remedies granted to a secured party upon default under the Uniform Commercial Code in accordance with the terms of Section 8.6 below, including, without limiting the generality of the foregoing: (i) the right to take possession of the Collateral or any part thereof, and to take such other measures as Mortgagee may deem necessary for the care, protection and preservation of the Collateral, and (ii) request Mortgagor at its expense to assemble the Collateral and make it available to Mortgagee at a convenient place acceptable to Mortgagee. Any notice of sale, disposition or other intended action by Mortgagee with respect to the Collateral sent to Mortgagor in accordance with the provisions hereof at least ten (10) days prior to such action, shall constitute commercially reasonable notice to Mortgagor. Upon any foreclosure or other sale of the Premises pursuant to the terms hereof, Mortgagee may bid for and purchase the Premises and shall be entitled to apply all or any part of the Indebtedness as a credit against the purchase price. In the event of a sale, by foreclosure, power of sale, or otherwise, of less than all of the Premises, this Mortgage shall continue as a lien and security interest on the remaining portion of the Premises unimpaired and without loss of priority. Notwithstanding the provisions of this Section 8.2 to the contrary, if any Event of Default as described in clause (i) or (ii) of Subsection 8.1(f) shall occur, the entire unpaid Indebtedness shall be automatically due and payable, without any further notice, demand or other action by Mortgagee. Section 8.3. Application of Proceeds. The proceeds and avails of any disposition of the Premises, or any part thereof, or any other sums collected by Mortgagee pursuant to the Note, this Mortgage or the other Loan Documents, may be applied by Mortgagee to the payment of the Indebtedness in such priority and proportions as Mortgagee in its discretion shall deem proper. Section 8.4. Right to Cure Defaults. Upon the occurrence of any Event of Default, Mortgagee may, but without any obligation to do so and without notice to or demand on Mortgagor and without releasing Mortgagor from any obligation hereunder or curing or being deemed to have cured any default hereunder, make or do the same in such manner and to such extent as Mortgagee may deem necessary to protect the security hereof. Mortgagee is authorized to enter upon the Premises for such purposes, or appear in, defend, or bring any action or proceeding to protect its interest in the Premises or to foreclose this Mortgage or collect the Indebtedness, and the cost and expense thereof (including actual attorneys' fees to the extent permitted by law), with interest as provided in this Section 8.4, shall constitute a portion of the Indebtedness and shall be due and payable to Mortgagee upon demand. All such costs and expenses incurred by Mortgagee in remedying such Event of Default or such failed payment or act or in appearing in, defending, or bringing any such action or proceeding shall bear interest at the Default Rate, for the period after notice from Mortgagee that such cost or expense was incurred to the date of payment to Mortgagee. All such costs and expenses incurred by Mortgagee together with interest thereon calculated at the Default Rate shall be deemed to constitute a portion of the Indebtedness and be secured by this Mortgage and the other Loan Documents and shall be immediately due and payable upon demand by Mortgagee therefor. Section 8.5. Receiver. Upon the occurrence of an Event of Default, Mortgagee shall be entitled to, as a matter of right, without notice and without regard to the solvency or insolvency of Mortgagor, or the existence of waste of the Premises or adequacy of the security of the Premises, and without giving bond, apply for the appointment of a receiver in accordance with the statutes and law made and provided for who shall have all the rights, powers and remedies as provided by such statute or law, and who shall from the date of its appointment through any period of redemption existing at law collect the Rents, manage the Premises so as to prevent waste, execute leases within or beyond the period of receivership, pay all expenses for normal maintenance of the Premises, and perform the terms of this Mortgage and apply the Rents to the payment of the expenses for maintenance of the Premises and to the costs and expenses of the receivership, including attorneys' fees, to the repayment of the indebtedness secured hereby and as further provided in the assignment of leases provision, whether contained in this Mortgage or in a separate instrument. Mortgagor does hereby irrevocably consent to such appointment. In the event of a conflict between this provision and any other provision of this Mortgage, this provision shall govern. Section 8.6. Rights Under Uniform Commercial Code. In addition to the rights available to a mortgagee of real property, Mortgagee shall also have all the rights, remedies and recourse available to a secured party under the Code including the right to proceed under the provisions of the Code governing default as to any Collateral as defined in this Mortgage which may be included on the Premises or which may be deemed nonrealty in a foreclosure of this Mortgage or to proceed as to such Collateral in accordance with the procedures and remedies available pursuant to a foreclosure of real estate. Section 8.7. Right to Discontinue Proceedings. In the event Mortgagee shall have proceeded to invoke any right, remedy or recourse permitted under this Mortgage and shall thereafter elect to discontinue or abandon the same for any reason, Mortgagee shall have the unqualified right to do so and in such event Mortgagor and Mortgagee shall be restored to their former positions with respect to the Indebtedness in which case this Mortgage and all rights, remedies and recourse of Mortgagee shall continue as if such action or exercise of a right had not been invoked. Section 8.8. Waivers. Mortgagor also waives the benefit of all laws now existing or that may hereinafter be enacted providing for: (a) any appraisal before sale of any portion of the Premises, and (b) in any way extending the time for the enforcement and collection of the Note or this Mortgage or creating or extending a period of redemption from any sale made in collecting said debt. To the full extent Mortgagor may do so under applicable law, Mortgagor agrees that Mortgagor will not at any time insist upon, plead, claim or take the benefit or advantage of any law now or hereafter enforced providing for any appraisal, evaluation, stay, extension or redemption and Mortgagor, to the extent permitted by law, waives and releases all rights of redemption, valuation, appraisal, stay of execution, notice of election to mature or declare due the whole of this Mortgage and marshaling in the event of foreclosure of the liens hereby created. Acceptance by Mortgagee of any payment which is less than payment in full of all amounts due and payable at the time of such payment shall not constitute a waiver of Mortgagee's right to demand payment of the balance due, or any other rights of Mortgagee at that time or any subsequent time. Section 8.9. Default Interest and Late Charges. Mortgagor acknowledges that, without limitation to any of Mortgagee's rights or remedies set forth in this Mortgage, Mortgagee has the right following an Event of Default to demand interest on the principal amount of the Note at the Default Rate and late payment charges in accordance with the terms of the Note. Section 8.10. Rights Cumulative. The rights and remedies of Mortgagee as provided in this Mortgage, the Note and any other Loan Document and the warranties contained herein or therein shall be cumulative and concurrent, may be pursued singly, successively or together at the sole discretion of Mortgagee, may be exercised as often as occasion for their exercise shall occur and in no event shall the failure to exercise any such right or remedy be construed as a waiver or release of such right or remedy. No remedy under this Mortgage, the Note or any other Loan Document conferred upon or reserved to Mortgagee is intended to be exclusive of any other remedy provided in this Mortgage, the Note or any other Loan Document or provided by law, but each shall be cumulative and shall be in addition to every other remedy given under this Mortgage, the Note or any other Loan Document or now or hereafter existing at law or in equity or by statute. Section 8.11. Mortgagor Not Released. No delay or omission by Mortgagee in the exercise of any rights or remedies arising under this Mortgage, the Note or any other Loan Document at any time following the happening of an Event of Default shall constitute a waiver of the right of Mortgagee to exercise such rights and remedies at a later time by reason of such Event of Default or by reason of any subsequently occurring Event of Default. ARTICLE IX HAZARDOUS MATERIALS Section 9.1. Definitions. As used in this Mortgage, the following terms shall have the following meanings: (a) "Hazardous Substances or Wastes" includes but is not limited to any and all substances (whether solid, liquid or gas) defined, listed, or otherwise classified as pollutants, hazardous wastes, hazardous substances, hazardous materials, extremely hazardous wastes, mold, or words of similar meaning or regulatory effect under any present or future Environmental Laws or that may have a negative impact on human health or the environment including, but not limited to, petroleum and petroleum products, asbestos and asbestos-containing materials, polychlorinated biphenyls, lead, radon, radioactive materials, flamnunables, explosives and mold. (b) "Existing Conditions" shall have the meaning given such term in the Environmental Indemnity Agreement. (c) "Environmental Law" means any present and future federal, state and local laws, statutes, ordinances, rules, regulations and the like, as well as common law, relating to protection of human health or the environment, relating to Hazardous Substances or Wastes, relating to liability for or costs of Remediation or prevention of Releases of Hazardous Substances or Wastes or relating to liability for or costs of other actual or threatened danger to human health or the environment. The term "Environmental Law" includes, but is not limited to, the following statutes, as amended, any successor thereto, and any regulations promulgated pursuant thereto, and any state or local statutes, ordinances, rules, regulations and the like addressing similar issues: the Comprehensive Environmental Response, Compensation and Liability Act; the Emergency Planning and Community Right-to-Know Act; the Hazardous Materials Transportation Act; the Resource Conservation and Recovery Act (including, but not limited to, Subtitle I relating to underground storage tanks); the Solid Waste Disposal Act; the Clean Water Act; the Clean Air Act; the Toxic Substances Control Act; the Safe Drinking Water Act; the Occupational Safety and Health Act; the Federal Water Pollution Control Act; the Federal Insecticide, Fungicide and Rodenticide Act; the Endangered Species Act; the National Environmental Policy Act; and the River and Harbors Appropriation Act. The term "Environmental Law" also includes, but is not limited to, any present and future federal, state and local laws, statutes, ordinances, rules, regulations and the like, as well as common law which conditions transfer of property upon a negative declaration or other approval of a governmental authority of the environmental condition of the property, requires notification or disclosure of Releases of Hazardous Substances or Wastes or other environmental condition of the Premises to any governmental authority or other person or entity, whether or not in connection with transfer of title to or interest in property, imposes conditions or requirements in connection with permits or other authorization for lawful activity, relates to nuisance, trespass or other causes of action related to the existence of Hazardous Materials or Wastes located on the Premises, and relates to wrongful death, personal injury, or property or other damage as a result of the existence of any Hazardous Materials or Wastes on the Premises. (d) "Release" with respect to any Hazardous Substances or Wastes includes, but is not limited to, any release, deposit, discharge, emission, leaking, leaching, spilling, seeping, migrating, injecting, pumping, pouring, emptying, escaping, dumping, disposing or other movement of Hazardous Substances or Wastes. (e) "Remediation" includes but is not limited to any response, remedial, removal, or corrective action; any activity to clean up, detoxify, decontaminate, contain or otherwise remediate any Hazardous Substances or Wastes; any actions to prevent, cure or mitigate any Release of any Hazardous Substances or Wastes; any action to comply with any Environmental Laws or with any permits issued pursuant thereto; any inspection, investigation, study, monitoring, assessment, audit, sampling and testing, laboratory or other analysis, or evaluation relating to any Hazardous Substances or Wastes or to anything referred to herein. (f) "Legal Action" means any claim, suit or proceeding, whether administrative or judicial in nature. (g) "Indemnified Parties" includes Mortgagee, any subsidiary, affiliated entity, parent entity, director, officer, employee or agent of Mortgagee, any person or entity who is or will have been involved in the origination of the Loan, any person or entity who is or will have been involved in the servicing of the Loan, any person or entity in whose name the encumbrance created by the Mortgage is or will have been recorded, persons and entities who may hold or acquire or will have held a full or partial interest in the Loan, including, but not limited to, custodians, trustees and other fiduciaries who hold or have held a full or partial interest in the Loan for the benefit of third parties. (h) "Losses" includes any losses, damages, costs, actual fees, expenses, claims, suits, judgments, awards, liabilities (including, but not limited to, strict liabilities), obligations, debts, diminutions in value, fines, penalties, charges, costs of Remediation (whether or not performed voluntarily), amounts paid in settlement, foreseeable and unforeseeable consequential damages, litigation costs, actual attorneys' fees, engineers' fees, environmental consultants' fees, and investigation costs (including, but not limited to, costs for sampling, testing and analysis of soil, water, air, building materials, and other materials and substances whether solid, liquid or gas), of whatever kind or nature, and whether or not incurred in connection with any judicial or administrative proceedings, actions, claims, suits, judgments or awards. (i) "Permitted Substances" shall mean Hazardous Substances and Wastes which are present on the Premises, and are: (i) in compliance with all Environmental Laws and with permits issued pursuant thereto; and (ii) used by Mortgagor in the cleaning, maintenance and operation of the Premises, or by tenants in the normal course of their business in the Premises. Section 9.2. Environmental Representations and Warranties. To the best of Mortgagor's knowledge, after due inquiry, and except for, or otherwise in connection with, the Existing Conditions (if any): (a) there are no Hazardous Substances, Wastes or underground storage tanks in, on, or under the Premises, except: (i) Permitted Substances; (ii) those that are in compliance with all Environmental Laws and with permits issued pursuant thereto; and/or (iii) the Existing Conditions (if any), the material details of which having been previously fully disclosed, in writing, to the Mortgagee; (b) except for the Existing Conditions (if any), or otherwise in connection therewith: (i) there are no past, present or threatened Releases of Hazardous Substances or Wastes in, on, under or from the Premises; (ii) there is no threat of any Release of Hazardous Substances or Wastes migrating to the Premises; (iii) there is no past or present non-compliance with Environmental Laws, or with permits issued pursuant thereto, in connection with the Premises; and (iv) Mortgagor does not know of, and has not received, any written notice or other communication from any person or entity (including, but not limited to, a governmental entity) relating to Hazardous Substances or Wastes or Remediation thereof, of possible liability of any person or entity pursuant to any Environmental Law, other environmental conditions in connection with the Premises, or any actual or potential administrative or judicial proceedings in connection with any of the foregoing; and (c) Mortgagor has truthfully and fully provided to Mortgagee, in writing, any and all information relating to conditions in, on, under or from the Premises that is known to Mortgagor (including, without limitation, with respect to the Existing Conditions) and that is contained in files and records of Mortgagor including, but not limited to, any reports relating to Hazardous Substances or Wastes in, on, under or from the Premises and/or to the environmental condition of the Premises. Section 9.3. Environmental Covenants. Mortgagor covenants and agrees that: (a) all uses and operations on or of the Premises by Mortgagor or any other person or entity shall be in compliance with all Environmental Laws and permits issued pursuant thereto; (b) there shall be no Releases of Hazardous Substances or Wastes in, on, under or from the Premises by Mortgagor or anyone controlled by, controlling or under common control with Mortgagor; (c) Mortgagor shall keep the Premises free and clear of all liens and other encumbrances imposed pursuant to any Environmental Law, whether due to any act or omission of Mortgagor or any other person or entity ("Environmental Liens"); (d) Mortgagor shall, at its sole cost and expense, perform any environmental site assessment or other investigation of environmental conditions in connection with the Premises, pursuant to any written request of Mortgagee and share with Mortgagee the reports and other results thereof, and Mortgagee and other Indemnified Parties shall be entitled to rely on such reports and other results thereof; (e) Mortgagor shall, at its sole cost and expense, comply with all written requests of Mortgagee to (i) effectuate Remediation of any condition (including, but not limited to, a Release of a Hazardous Substance) in, on, under or from the Premises; (ii) comply with any Environmental Law; (iii) comply with any directive from any governmental authority; and (iv) take any other action necessary or appropriate for protection of human health or the environment; (f) Mortgagor shall not do or allow any tenant or other user of the Premises to do any act that materially increases the dangers to human health or the environment, poses an unreasonable risk of harm to any person or entity (whether on or off the Premises), impairs or may impair the value of the Premises, is contrary to any requirement of any insurer, constitutes a public or private nuisance, constitutes waste, or violates any covenant, condition, agreement or easement applicable to the Premises; and (g) Mortgagor shall immediately notify Mortgagee in writing of (i) any presence (except the presence of "Permitted Substances" as hereinafter defined) or Releases or threatened Releases of Hazardous Substances or Wastes in, on, under, from or migrating towards the Premises; (ii) any non-compliance with any Environmental Laws related in any way to the Premises; (iii) any actual or potential Environmental Lien; (iv) any required or proposed Remediation of environmental conditions relating to the Premises; and (v) any written or oral notice or other communication of which Mortgagor becomes aware from any source whatsoever (including, but not limited to, a governmental entity) relating in any way to Hazardous Substances or Wastes or Remediation thereof, possible liability of any person or entity pursuant to any Environmental Law, other environmental conditions in connection with the Premises, or any actual or potential administrative or judicial proceedings in connection with anything referred to in this Mortgage. Section 9.4. Mortgagee's Right to Inspect and Conduct Testing. The Indemnified Parties and any other person or entity designated by Indemnified Parties (including, but not limited to, any receiver, any representative of a governmental entity and any environmental consultant), shall have the right but not the obligation to enter upon the Premises at all reasonable times to assess any and all aspects of the environmental condition of the Premises and its use including, but not limited to, conducting any environmental assessment or audit (the scope of which shall be determined in Mortgagee's sole and absolute discretion) and taking samples of soil, groundwater or other water, air or building materials, and conducting other invasive testing. Mortgagor shall cooperate with and provide access to the Indemnified Parties and any such person or entity designated by the Indemnified Parties. All such investigations shall be performed at Mortgagor's sole cost and expense. Section 9.5. Indemnification. Mortgagor covenants and agrees at its sole cost and expense, to protect, defend, indemnify, release and hold Indemnified Parties harmless from and against any and all Losses imposed upon or incurred by or asserted against any Indemnified Parties and directly or indirectly arising out of or in any way relating to any one or more of the following: (a) the past, present or future presence, Release or threatened Release of any Hazardous Substances or Wastes in, on, above, or under the Premises; (b) any past, present or threatened non-compliance or violations of any Environmental Laws (or permits issued pursuant to any Environmental Laws) in connection with the Premises or operations thereon; (c) any legal or administrative processes or proceedings or judicial proceedings in any way connected with any matter addressed in this Mortgage; (d) any personal injury, wrongful death, or property or other damage arising under any statutory or common law or tort law theory concerning Hazardous Substances or Wastes; and (e) any misrepresentation or inaccuracy in any representation or warranty or material breach or failure to perform any covenants or other obligations in this Mortgage or any covenants which are related to Hazardous Substances or Wastes or Environmental Law. ARTICLE X MISCELLANEOUS Section 10.1. Release of Mortgage. When all Indebtedness has been paid, this Mortgage and all assignments herein contained shall, except as otherwise provided herein, terminate and shall be released by Mortgagee at Mortgagor's expense. Section 10.2. Time of the Essence. Time is of the essence with regard to the performance of the obligations of Mortgagor in this Mortgage and each and every term, covenant and condition herein by or applicable to Mortgagor. Section 10.3. Governing Law. This Mortgage and the rights and obligations of all parties hereunder shall be governed by and construed in accordance with the laws of the State or Commonwealth in which the Premises are located, without regard to its conflicts of law principles. Section 10.4. Interest Limitation. All agreements between Mortgagor and Mortgagee are hereby expressly limited so that in no contingency or event whatsoever, whether by reason of acceleration of maturity of the Indebtedness or otherwise, shall the amount paid or agreed to be paid to Mortgagee for the use, forbearance, loaning or detention of the Indebtedness exceed the maximum permissible under applicable law. If from any circumstances whatsoever, fulfillment of any provisions of this Mortgage, the Note or of the other Loan Documents at any time given shall exceed the maximum permissible under applicable law, then, the obligation to be fulfilled shall automatically be reduced to an amount which complies with applicable law, and if from any circumstances Mortgagee should ever receive as interest an amount which would exceed the highest lawful rate of interest, such amount which would be in excess of such lawful rate of interest shall be applied to the reduction of the principal balance evidenced hereby and not to the payment of interest. This provision shall control every other provision of all agreements between Mortgagor and Mortgagee and shall also be binding upon and available to any subsequent holder of the Note. All sums paid or agreed to be paid to Mortgagee for the use, forbearance, or detention of the Indebtedness shall, to the extent permitted by applicable law, be amortized, prorated, allocated, and spread throughout the full stated term of the Note until payment in full so that the rate or amount of interest on account of the Indebtedness does not exceed the maximum lawful rate of interest from time to time in effect and applicable to the Indebtedness for so long as the Indebtedness is outstanding. Section 10.5. Use of Loan and Premises. Mortgagor represents and warrants to Mortgagee that the loan evidenced by the Note is a business loan transacted solely for the purpose of carrying on the business of Mortgagor and not a consumer transaction, and the Premises does not constitute the homestead of Mortgagor. Mortgagor represents and warrants that as of the date of this Mortgage the Premises is not in agricultural use and is not used for agricultural purposes Section 10.6. Captions. The captions to the sections of this Mortgage are for convenience only and shall not be deemed part of the text of the respective sections and shall not vary, by implication or otherwise, any of the provisions of this Mortgage. Section 10.7. Notices. All notices or other communications hereunder shall be made in writing to a party at the address set forth below (or such other address as a party may designate, in writing to the other party, from time to time) and be deemed to have been properly given: (a) upon delivery, if delivered in person, (b) one (1) business day after having been deposited for overnight delivery with any reputable overnight courier service, or (c) three (3) business days after having been deposited in any post office or mail depository regularly maintained by the U.S. postal service and sent by registered or certified mail, postage prepaid, return receipt requested. Either party by notice to the other in the manner provided herein may designate additional or different addresses for subsequent notices or communications. A written notice shall also be deemed received on the date delivery shall have been refused at the address required by this Mortgage. To Mortgagee: Patch of Land Lending, LLC, 15000 Ventura Blvd. Suite 202 Sherman Oaks, CA 91403 Attention, Operations Department To Mortgagor: Banyan Strategies, LLC 412 S CARROLL BLVD STE 1000 DENTON, TX 76201-7449 Email: [email protected] Section 11.1. Severability. Wherever possible, each provision of this Mortgage shall be interpreted in such manner as to be effective and valid under applicable law. Any term or provision of this Mortgage that is invalid or unenforceable in any situation shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation. In the event that any clause, term, or condition of this Mortgage shall be held invalid or contrary to law: (a) this Mortgage shall remain in full force and effect as to all other clauses, terms, and conditions; (b) the subject clause, term, or condition shall be revised to the minimum extent necessary to render the modified provision valid, legal and enforceable; and (c) the remaining provisions of this Mortgage shall be amended to the minimum extent necessary so as to render the Mortgage as a whole most nearly consistent with the parties' intentions in light of the modification or removal of the invalid or illegal provision. Section 11.2. Successors and Assigns. This Mortgage and each and every covenant, agreement and other provision hereof shall be binding upon Mortgagor and its successors and assigns, including, without limitation each and every person or entity that may, from time to time, be record owner of the Premises or any other person having an interest therein, shall run with the land and shall inure to the benefit of Mortgagee and its successors and assigns. As used herein the words "successors and assigns" shall also be deemed to include the heirs, representatives, administrators and executors of any natural person who is a party to this Mortgage. Nothing in this Section shall be construed to constitute consent by Mortgagee to assignment of this Mortgage by Mortgagor. Section 11.3. No Oral Modification. This Mortgage may not be modified or discharged orally, but only by an agreement in writing signed by Mortgagor and Mortgagee. Section 11.4. Indemnity. Mortgagor agrees to indemnify, protect, hold harmless and defend Mortgagee from and against any and all losses, liabilities, suits, actions, obligations, fines, damages, judgments, penalties, claims, causes of action, charges, costs and expenses (including actual attorneys' fees, disbursements and court costs prior to trial, at trial and on appeal) which may be imposed on, incurred or paid by, or asserted against Mortgagee by reason or on account of, in connection with, or arising from (i) the construction, reconstruction or alteration of the Premises, (ii) any negligence of Mortgagor or any tenant of any portion of the Premises or any of their respective agents, contractors, subcontractors, servants, directors, officers, employees, licensees or invitees, (iii) any accident, injury, death or damage to any person or property occurring in, on or about the Premises or any street, drive, sidewalk, curb or passageway adjacent thereto, except to the extent that the same results directly from the willful misconduct of Mortgagee, (iv) or by virtue of Mortgagee's interest in this document. Any amount payable to Mortgagee under this Section shall be due and payable upon demand therefor and receipt by Mortgagor of a statement from Mortgagee setting forth in reasonable detail the amount claimed and the basis therefor. Mortgagor’s obligations under this Section shall survive the repayment or any other satisfaction of the Note and shall not be affected by the absence or unavailability of insurance covering the same or by the failure or refusal of any insurance carrier to perform any obligation on its part under any such policy of insurance. If any claim, action or proceeding is made or brought against Mortgagee which is subject to the indemnity set forth in this Section, Mortgagor shall resist or defend against the same, in its own name or, if necessary, in the name of Mortgagee, by attorneys for Mortgagor’s insurance carrier (if the same is covered by insurance) approved by Mortgagee or otherwise by attorneys retained by Mortgagor and approved by Mortgagee. Notwithstanding the foregoing, Mortgagee, in its discretion, if it disapproves of the attorneys provided by Mortgagor or Mortgagor’s insurance carrier, may engage its own attorneys to resist or defend, or to assist therein, and Mortgagor shall pay or, on demand, shall reimburse Mortgagee for the payment of, all actual fees and disbursements of said attorneys. Section 11.5. Representations of Mortgagor. Mortgagor affirmatively represents and warrants that the written terms of the Loan Documents, and each of them, accurately reflect the mutual understanding of Mortgagor and Mortgagee, as to all matters addressed therein, and Mortgagor further represents and warrants that there are no other agreements or understandings, written or oral, which exist between Mortgagor and Mortgagee relating to the matters addressed in the Loan Documents. Section 11.6. Mortgagee’s Expenses. Should Mortgagee make any payments hereunder or under the Note or under any other Loan Documents or incur any liability, loss or damage under or by reason of this Mortgage, the Note or any other Loan Documents, or in the defense of any claims or demands, the amount thereof, and all costs and expenses, including all filing, recording, and title fees and any other expenses relating to the Indebtedness, including without limitation filing fees for UCC continuation statements and any expense involving modification thereto, actual attorneys’ fees, and any and all costs and expenses incurred in connection with making, performing, or collecting the Indebtedness or exercising any of Mortgagee’s rights under the Note, this Mortgage or any other Loan Documents, including actual attorneys’ fees, the cost of appraisals and the cost of any environmental inspections in connection therewith, and all claims for brokerage and finder’s fees which may be made in connection with the making of the Loan, together with interest thereon, at the Default Rate, shall become part of the Indebtedness and shall be secured by this Mortgage and the other Loan Documents and Mortgagor hereby agrees to reimburse Mortgagee therefor immediately upon demand. Such sums, costs and expenses shall be, until so paid, part of the Indebtedness and Mortgagee shall be entitled, to the extent permitted by law, to receive and retain the full amount of the Indebtedness in any action for redemption by Mortgagor, for an accounting for the proceeds of a foreclosure sale or of Insurance Proceeds or for apportionment of an eminent domain damage award. Section 11.7. Mortgagee’s Right to Counsel. (a) If Mortgagee retains attorneys to enforce any of the terms of the Loan Documents or because of the breach by Mortgagor of any of the terms hereof or of any of the other Loan Documents, or for the recovery of any Indebtedness, Mortgagor shall pay to Mortgagee actual attorneys’ fees and all costs and expenses, whether or not an action is actually commenced and the right to such actual attorneys’ fees and all costs and expenses shall be deemed to have accrued on the date such attorneys are retained, shall include fees and costs in connection with litigation, arbitration, mediation, bankruptcy and/or administrative proceedings, and shall be enforceable whether or not such action is prosecuted to judgment and shall include all appeals. Attorneys’ fees and expenses shall for purposes of this Mortgage include all paralegal, electronic research, legal specialists and all other costs in connection with that performance of Mortgagee's attorneys. (b) If Mortgagee is, by reason of being the holder of this Mortgage, made a party defendant of any litigation, action, proceeding, (including without limitation condemnation or insurance loss matters) concerning this Mortgage or the Premises or any part thereof or therein, or the construction, maintenance, operation or the occupancy or use thereof by Mortgagor, then Mortgagor shall indemnify, defend and hold Mortgagee harmless from and against all liability by reason of said litigation, including actual attorneys' fees and all costs and expenses incurred by Mortgagee in any such litigation or other proceedings, whether or not any such litigation or other proceedings is prosecuted to judgment or other determination. Section 11.8. Other Representations and Warranties. All statements contained in the Loan Commitment or in any loan application, certificate or other instrument delivered by or on behalf of Mortgagor to Mortgagee or Mortgagee's representatives in connection with the Indebtedness shall constitute representations and warranties made by Mortgagor hereunder. Such representations and warranties made hereunder and thereunder shall survive the delivery of this Mortgage, and any misrepresentations thereunder shall be deemed as misrepresentations hereunder. Section 11.9. Survival of Representations Warranties and Covenants. All representations, covenants and warranties contained herein or in any of the other Loan Documents shall survive the delivery of the Note, this Mortgage and all other Loan Documents executed in connection herewith and the provisions hereof shall continue to inure to the benefit of Mortgagee, its successors and assigns. Section 11.10. WAIVER OF JURY TRIAL. MORTGAGOR AND MORTGAGEE HEREBY VOLUNTARILY, KNOWINGLY, IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE (WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE) BETWEEN OR AMONG MORTGAGOR AND MORTGAGEE ARISING OUT OF OR IN ANY WAY RELATED TO THIS MORTGAGE, ANY OTHER LOAN DOCUMENT, OR ANY RELATIONSHIP BETWEEN MORTGAGOR AND MORTGAGEE. THIS PROVISION IS A MATERIAL INDUCEMENT TO MORTGAGEE TO PROVIDE THE LOAN DESCRIBED HEREIN AND IN THE OTHER LOAN DOCUMENTS. Section 11.11. JURISDICTION AND VENUE. MORTGAGOR HEREBY AGREES THAT ALL ACTIONS OR PROCEEDINGS INITIATED BY MORTGAGOR AND ARISING DIRECTLY OR INDIRECTLY OUT OF THIS MORTGAGE SHALL BE LITIGATED (AT THE OPTION OF MORTGAGEE) IN THE STATE AND FEDERAL COURTS OF THE STATE OF CALIFORNIA OR, IF MORTGAGEE INITIATES SUCH ACTION, ANY COURT OF RECORD IN THE STATE OR COMMONWEALTH IN WHICH THE PREMISES IS LOCATED OR ANY OTHER COURT IN WHICH MORTGAGEE SHALL INITIATE SUCH ACTION AND WHICH HAS JURISDICTION. THE PARTIES IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH EITHER OF THEM MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT, AND ANY CLAIM THAT SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. NOTWITHSTANDING THE FOREGOING, MORTGAGEE SHALL NOT BE DEEMED TO BE PRECLUDES FROM ENFORCING ANY JUDGMENT OBTAINED IN ANY OTHER FORUM OR TAKING ANY ACTION TO ENFORCE THE SAME IN ANY OTHER APPROPRIATE JURISDICTION, AND MORTGAGOR HEREBY WAIVES THE RIGHT, IF ANY, TO COLLATERALLY ATTACK ANY SUCH JUDGMENT OR ACTION. Section 11.12. Minimum Requirement. Mortgagor recognizes that the requirements imposed upon Mortgagor hereunder, including, without limitation, insurance requirements, are minimum requirements as determined by Mortgagee and do not constitute a representation that the requirements are complete or adequate. Mortgagor understands that it is Mortgagor's duty and responsibility to act prudently and responsibly at all times for Mortgagor's protection and for the protection of the Premises. Section 11.13. Reproduction of Documents. This Mortgage and all documents relating thereto, specifically excluding the Note but including, without limitation, consents, waivers and modifications which may hereafter be executed, financial and operating statements, certificates and other information previously or hereafter furnished to Mortgagee, may be reproduced by Mortgagee by any photographic, photostatic, microfilm, micro-card, miniature photographic or other similar process and Mortgagee may destroy any original document ("Master") so reproduced. Mortgagor agrees and stipulates that any such reproduction is an original and shall be admissible in evidence as the Master in any judicial or administrative proceeding (whether or not the Master is in existence and whether or not such reproduction was made or preserved by Mortgagee in the regular course of business) and any enlargement, facsimile or further reproduction of such a reproduction shall be no less admissible. Section 11.14. Acknowledgement. Mortgagor has read and understands each of the terms and conditions of this Mortgage and is entering into this Mortgage freely and voluntarily, without duress, after having had an opportunity for consultation with independent counsel of its own selection, and not in reliance upon any representations, warranties, or agreements made by Mortgagee and not set forth in this Mortgage. ARTICLE XII STATE SPECIFIC PROVISIONS Section 12.1. Incorporation of State Law Provisions. Certain provisions/sections of this Mortgage and certain additional provisions/sections that are required by laws of the State or Commonwealth in which the Premises are located may be amended, described and/or otherwise set forth in more detail on Exhibit B attached hereto, which such Exhibit by this reference, is incorporated into and made a part of this Mortgage. In the event of any conflict between such state law provisions and any provision herein, the state law provisions shall control. IN WITNESS WHEREOF, the undersigned has caused this Mortgage to be executed as of the date first above written. MORTGAGOR: Banyan Strategies, LLC, a(n) Texas Limited Liability Company By: ______________________ Tonya Weathers, Authorized Signatory ACKNOWLEDGMENT STATE OF ____________________________ COUNTY OF ______________________________ ss. The undersigned a notary public in and for said County in the State aforesaid, DOES HEREBY CERTIFY that Tonya Weathers, being the Authorized Signatory of Banyan Strategies, LLC, a(n) Texas Limited Liability Company personally, known to me to be the same person whose name is subscribed to the foregoing instrument, appeared before me this day in person and acknowledged that he signed, sealed and delivered the said instrument as his free and voluntary act, and the free and voluntary act of the aforementioned entity for the uses and purposes therein set forth. GIVEN under my hand and official seal, this ________ day of April, 2018. ______________________________ Notary Signature Commission Expires: ______August 24, 2019______ Print Name: NOVA A FISHER This Instrument Prepared by And After Recording Return To: Patch of Land Lending, LLC 15000 Ventura Blvd Suite 202 Sherman Oaks, CA 91403 [Amelia Nayouan] NOVA A. FISHER ID # 126230087 Notary Public, State of Texas My Commission Expires 08/24/2019 EXHIBIT A Order No.: For Tax Map ID(s): Three tracts of land lying in the South Half of the Northwest Quarter (S 1/2 NW 1/4) of Section 35, Township 11, Range 21 West of the Indian Meridian, Beckham County, Oklahoma, being described by metes and bounds as follows: Tract One: A tract of land lying in the S 1/2 NW 1/4 of Section 35, Township 11 North, Range 21 West of the Indian Meridian, Beckham County, Oklahoma: Beginning at a point 660.0 feet South of the North line of said S 1/2 NW 1/4 and 660.0 feet East of the West line of said S 1/2 NW 1/4; Thence North 00°04'40" West along the East line of a tract of land presently owned by Public Service Company of Oklahoma, a distance of 660.0 feet to the North line of said South Half of the Northwest Quarter; Thence South 89°58'39" East along said North line a distance of 368.62 feet; Thence South 00°04'40" East a distance of 436.16 feet; Thence Southeasterly on a curve to the left having a radius of 572.96 feet a distance of 100.00 feet; Thence South 10°04'40" East a distance of 4.41 feet to a point on the North line of South Country Park II Addition to the City of Elk City, Beckham County, Oklahoma; Thence along said Addition as follows; South 89°55'20" West a distance of 25.39 feet; Thence South 10°04'40" East a distance of 51.63 feet; Thence Southeasterly on a curve to the left having a radius of 547.96 feet a distance of 69.63 feet; Thence North 89°58'39" West a distance of 369.38 feet to the point of beginning. LESS AND EXCEPT a tract of land lying in the S 1/2 NW 1/4 of Section 35, Township 11 North, Range 21 West of the Indian Meridian, Beckham County, Oklahoma, also described by metes and bounds as follows: Beginning at a point 660.00 feet South of the North line of said S 1/2 NW 1/4 and 728.40 feet East of the West line of said S 1/2 NW 1/4; Thence North 00°04'40" West a distance of 317.50 feet; Thence South 89°58'39" East a distance of 153.30 feet; Thence South 00°04'40" East a distance of 317.50 feet; Thence North 89°58'39" West a distance of 153.30 feet to the point of beginning. Tract Two: Beginning at a point 878.91 feet South 00°04'40" East and 40.00 feet North 89°55'20" East of the Northwest Corner of said S 1/2 NW 1/4 of Section 35, Township 11 North, Range 21 West of the Indian Meridian, Beckham County, Oklahoma; Thence North 89°55'20" East perpendicular to the West line of said Section 35, a distance of 466.70 feet; Thence North 00°04'40" West parallel with said West line a distance of 218.03 feet; Thence South 89°58'30" East parallel with the North line of said S 1/2 NW 1/4 a distance of 342.00 feet; Thence South 00°04'40" East parallel with the West line of said Section 35 a distance of 372.43 feet; Thence South 89°55'20" West perpendicular to said West line of said Section 35 a distance of 138.70 feet; Thence North 00°04'40" West parallel with the West line of said Section 35 a distance of 5.00 feet; Thence South 89°55'20" West perpendicular to said West line of said Section 35 a distance of 670.00 feet; Thence North 00°04'40" West parallel with the West line of said Section 35 a distance of 150.00 feet to the point of beginning. Said tract being same as proposed Lot One (1), Block One (1) of South Country Park I Addition, Elk City, Beckham County, Oklahoma and Lot One (1), Block Ten (10) of proposed South County Park Addition 11, Elk City, Beckham County, Oklahoma. Tract Three: A tract of land lying in the S 1/2 NW 1/4 of Section 35, Township 11 North, Range 21 West of the Indian Meridian, Beckham County, Oklahoma: beginning at a point on the West line of said S 1/2 NW 1/4; said point being 660.00 feet South of the Northwest corner of said S 1/2 NW 1/4; Thence South 00°04'40" East along said West line a distance of 28.91 feet; Thence North 89°55'20" East along the North boundary line of a tract of land being presently owned by Production Services, Inc., a distance of 506.70 feet; Thence North 00°04'40" West parallel with the West line of said S 1/2 NW 1/4 a distance of 28.03 feet; Thence North 89°58'39" West, parallel with the North line of said S 1/2 NW 1/4 and along the EXHIBIT A (continued) South boundary line of a tract of land being presently owned by Public Service Company of Oklahoma, a distance of 506.70 feet to the point of beginning. EXHIBIT C EXHIBIT B APPLICABLE STATE LAW POWER OF SALE. A POWER OF SALE HAS BEEN GRANTED IN THIS MORTGAGE. A POWER OF SALE MAY ALLOW MORTGAGEE TO TAKE THE MORTGAGED PROPERTY AND SELL IT WITHOUT GOING TO COURT IN A FORECLOSURE ACTION UPON DEFAULT BY MORTGAGOR UNDER THIS MORTGAGE. Without limiting the remedies set forth in Exhibit B or elsewhere in this Mortgage, Mortgagee shall be entitled to use the non-judicial power of sale which is hereby conferred by Mortgagor to Mortgagee pursuant to Title 46, Oklahoma Statutes, §§40, ct seq., effective November 1, 1986, as the same may be amended from time to time (the "Act"). Such power of sale shall be exercised by giving the Mortgagor Notice of Intent to Foreclose by Power of Sale and setting forth, among other things, the nature of the breach(es) or default(s) and the action required to effect a cure thereof and the time period within which such cure may be effected, all in compliance with the Act or such other applicable statutory authority. If no cure is effected within the statutory time limits, the Mortgagee may accelerate the Indebtedness (the aforementioned statutory cure period shall run concurrently with any contractual provisions for notice and/or opportunity to cure and in the event Mortgagee elects to use the power of sale herein granted and gives notice in accordance with the Act, notwithstanding any other provision hereof, the Mortgagee shall not be required to give any other notices required hereby as a condition precedent to the giving of Notice of Intent to Foreclose by Power of Sale described herein) and may then proceed in the manner and subject to the conditions of the Act to send to the Mortgagor and other necessary parties a Notice of Sale and to sell and convey the Property in accordance with the Act. The sale shall be made at one or more sales, as an entirety or in parcels, upon such notice, at such time and places, subject to all conditions of the Act and with proceeds thereof to be applied all as provided in the Act. No action of the Mortgagee based upon the provisions contained herein or contained in the Act, including, without limitation, the giving of the Notice of Intent to Foreclose by Power of Sale or the Notice of Sale, shall constitute an election of remedies which would preclude the Mortgagee from pursuing judicial foreclosure before or at any time after commencement of the power of sale foreclosure procedure. Appraisement. In any judicial action to foreclose this Mortgage, the court shall direct the sale of the Property to be either with or without appraisement as Mortgagee may elect, said election to be exercised at or prior to the time judgment is rendered. WARRANTY DEED KNOW ALL MEN BY THESE PRESENTS: THAT SHREE SWAMINARAYAN, L.L.C., a Oklahoma limited liability company, parties of the first part, in consideration of the sum of One Dollar and other good and valuable considerations, in hand paid, the receipt of which is hereby acknowledged, does hereby Grant, Bargain, Sell and Convey unto BANYAN OK, LLC, a Oklahoma limited liability Company, of 102 BJ Hughes Access Road, Elk City, OK 74553, parties of the second part, the following described real property and premises, to-wit: Three tracts of land lying in the South Half of the Northwest Quarter (S/2NW/4) of Section Thirty-Five (35), Township Eleven (11) North Range Twenty-one (21), W.L.M., City of Elk City, Beckham County, State of Oklahoma and described more fully in the attached Exhibit A, which is incorporated herein by reference as if fully set forth herein. together with all the improvements thereon and the appurtenances thereunto belonging, and warrant the title to the same, and subject to easements and rights of way of record. TO HAVE AND TO HOLD said described premises unto the said parties of the second part, its heirs and assigns forever, free, clear and discharged of and from all former grants, charges, taxes, judgments, mortgages and other liens and encumbrances of whatsoever nature. THIS CONVEYANCE IS MADE AS-IS, WITH ALL FAULTS, AND WITHOUT ANY REPRESENTATION OR WARRANTY WHATSOEVER (OTHER THAN AS TO THE TITLE), EXPRESS OR IMPLIED OR BY OPERATION OF LAW, INCLUDING WITHOUT LIMITATION, ANY REPRESENTATION OR WARRANTY AS TO TITLE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Signed and delivered this 8th day of December, 2017. (signature page to follow) Return to: Chicago Title Oklahoma 210 Park Ave., Suite 210 Oklahoma City, OK 73102 File # SHREE SWAMINARAYAN, L.L.C. By: JAGDISH PATEL, Managing Member STATE OF Oklahoma ) Beckham COUNTY ) BEFORE ME, the undersigned Notary Public in and for said County and State, on December 8, 2017, personally appeared Jagdish Patel, Managing Member of Shree Swaminarayan, L.L.C., a Oklahoma limited liability company, to me known to be the identical person who executed the within and foregoing instrument, and acknowledged to me that he executed the same as his free and voluntary act and deed for the uses and purposes therein set forth. JANEEN WARNKE Notary Public, State of Oklahoma My Commission Expires: __________________________ (SEAL) EXHIBIT D VIEW ADDITIONAL LAND RECORDS AT OKCOUNTYRECORDS.COM EXHIBIT "A" Three tracts of land lying in the South Half of the Northwest Quarter (S/2NW/4) of Section Thirty-Five (35), Township Eleven (11) North, Range Twenty-one (21), W.I.M., Beckham County, Oklahoma and more fully set forth on the attached Exhibit A-1, which is fully incorporated herein by reference as if fully set forth herein AND All right, title and interest of Seller in and to all tangible personal property of any type relating to the ownership, use, maintenance or operation of the Land and/or improvements; including all of the trade fixtures, furniture, equipment, security systems, beds, pillows, night stands, lamps, chairs, tables dressers, mirrors, televisions and related personal property used in connection with Seller's historical operation of Seller's motel on the Land (the "Personal Property"). The Personal Property shall additionally include all leased components of equipment which comprise a part of Seller's business operation, which leases Seller shall pay off in full prior to Closing (as defined below) so as to allow for the transfer of clear title, without any rights in favor of the leasing entity, to all such equipment to Buyer, free of any and all encumbrances, on the Closing Date. Buyer and Seller agree that the motel shall be equipped for operation with furniture, fixtures and equipment currently in the motel. Three tracts of land lying in the South Half of the Northwest Quarter (S 1/4 NW 1/4) of Section 35, Township 11, Range 21 West of the Indian Meridian, Beckham County, Oklahoma, being described by metes and bounds as follows: Tract One: A tract of land lying in the S 1/4NW 1/4 of Section 35, Township 11 North, Range 21 West of the Indian Meridian, Beckham County, Oklahoma: Beginning at a point 660.0 feet South of the North line of said S 1/4 NW 1/4 and 660.0 feet East of the West line of said S 1/4 NW 1/4; Thence North 00°04'40" West along the East line of a tract of land presently owned by Public Service Company of Oklahoma, a distance of 660.0 feet to the North line of said South Half of the Northwest Quarter; Thence South 89°58'39" East along said North line a distance of 368.62 feet; Thence South 00°04'40" East a distance of 436.16 feet; Thence Southeasterly on a curve to the left having a radius of 572.96 feet a distance of 100.00 feet; Thence South 10°04'40' East a distance of 4.41 feet to a point on the North line of Sorth Country Park II Addition to the City of Elk City, Beckham County, Oklahoma; Thence along said Addition as follows; South 89°55'20" West a distance of 25.39 feet; Thence South 10°04'40" East a distance of 51.63 feet; Thence Southeasterly on a curve to the left having a radius of 547.96 feet a distance of 69.63 feet; Thence North 89°58'39" West a distance of 369.38 feet to the point of beginning. LESS AND EXCEPT a tract of land lying in the S 1/4 NW 1/4 of Section 35, Township 11 North, Range 21 West of the Indian Meridian, Beckham County, Oklahoma, also described by metes and bounds as follows: Beginning at a point 660.00 feet South of the North line of said S 1/4 NW 1/4 and 728.40 feet East of the West line of said S 1/4 NW 1/4; Thence North 0°04'40" West a distance of 317.50 feet; Thence South 89°58'39" East a distance of 153.30 feet; Thence South 0°04'40" East a distance of 317.50 feet; Thence North 89°58'39" West a distance of 153.30 feet to the point of beginning. Tract Two: Beginning at a point 878.91 feet South 00°04'40" East and 40.00 feet North 89°55'20" East of the Northwest Corner of said S 1/4 NW 1/4 of Section 35, Township 11 North, Range 21 West of the Indian Meridian, Beckham County, Oklahoma; Thence North 89°55'20" East perpendicular to the West line of said Section 35, a distance of 486.70 feet; Thence North 00°04'40" West parallel with said West line a distance of 218.03 feet; Thence South 89°58'39" East parallel with the North line of said S 1/4 NW 1/4 a distance of 342.00 feet; Thence South 00°04'40" East parallel with the West line of said Section 35 a distance of 372.43 feet; Thence South 89°55'20" West perpendicular to said West line of said Section 35 a distance of 138.70 feet; Thence North 00°04'40" West parallel with the West line of said Section 35 a distance of 5.00 feet; Thence South 89°55'20" West perpendicular to said West line of said Section 35 a distance of 670.00 feet; Thence North 00°04'40" West parallel with the West line of said Section 35 a distance of 150.00 feet to the point of beginning. Said tract being same as proposed Lot One (1), Block One (1) of South Country Park I Addition, Elk City, Beckham County, Oklahoma and Lot One (1), Block Ten (10) of proposed South Country Park Addition 11, Elk City, Beckham County, Oklahoma. Tract Three: A tract of land lying in the S½ NW¼ of Section 35, Township 11 North, Range 21 West of the Indian Meridian, Beckham County, Oklahoma: beginning at a point on the West line of said S½ NW¼; said point being 660.00 feet South of the Northwest corner of said S½ NW¼; Thence South 00°04'40" East along said West line a distance of 28.91 feet; Thence North 89°55'20" East along the North boundary line of a tract of land being presently owned by Production Services, Inc., a distance of 506.70 feet; Thence North 00°04'40" West parallel with the West line of said S½ NW¼ a distance of 28.03 feet; Thence North 89°58'39" West, parallel with the North line of said S½ NW¼ and along the South boundary line of a tract of land being presently owned by Public Service Company of Oklahoma, a distance of 506.70 feet to the point of beginning. Return to: Chicago Title Oklahoma 210 Park Ave., Suite 210 Oklahoma City, OK 73102 REAL ESTATE MORTGAGE WITH POWER OF SALE SHREE SWAMINARAYAN, LLC. 3840 Innisbrook Drive N. Irving, TX 75038 Know All Persons By These Presents, that BANYAN OK, LLC., a Oklahoma limited liability company, of 102 B J Hughes Access Road, Elk City, OK 73644 (hereinafter called Mortgagor), hereby mortgages to SHREE SWAMINARAYAN, L.L.C., a Oklahoma limited liability company, of 3840 Innisbrook Drive No., Irving, Dallas County, Texas 75038, (hereinafter called Mortgagee, whether one or more, and which term shall be construed to include Mortgagee’s successors and assigns) the following described real property, to-wit: SEE ATTACHED EXHIBIT “A” Together with all the buildings and other improvements located or constructed on the real estate, all fixtures, personal property used on or in the above real estate (collectively referred to as the "Mortgaged Property"). This Mortgage and assignments of rents, issues, profits and income derived from the Mortgaged Property creates a security interest in the Mortgaged Property and like kind future property from the time the Mortgage and assignment is granted even though enforcement of the assignment of rents, issues, profits and income may be delayed until default. Mortgagor warrants the title to the Mortgaged Property. The Mortgage is given to secure the payment and performance of all the following (collectively, the “Debt”): (a) The indebtedness evidenced by the following described promissory Note(s) (the - “Note”, whether one or more) and any modifications, renewals or substitutions of the Note: A Note from Mortgagor, BANYAN OK, LLC, to Mortgagee, SHREE SWAMINARAYAN, L.L.C. for the sum of $800,000.00 dated December 7, 2017, with a final maturity date of December 7, 2020. (b) All sums advanced or paid by Mortgagee on account of the failure of the Mortgagor to comply with the terms or covenants of this Mortgage or other documents signed by the Mortgagor: (c) All future loans and advances and all future renewals of loans which Mortgagee or the Debtor identified in the Note, if different from Mortgagor (The “Debtor”); and all other debts, obligations and liabilities of every kind and character or Mortgagor or Debtor now existing, whether or not explicitly referred to, or arising in the future in favor of Mortgagee, whether direct or indirect, “absolute or contingent,” or “originally payable to Mortgagee or any other person and any renewals or extensions” provided, however, if the Mortgaged Property includes Mortgagor’s principal dwelling or is otherwise a 1 to 4 family dwelling, the Mortgaged Property will not secure any future loan, advance, debt, obligation or liability taken or incurred principally for a personal, family or household purpose. Mortgagor further agrees (a) to pay and discharge all taxes and assessments on the Mortgaged Property before they become delinquent; (b) to keep all the Mortgaged Property and improvements insured and under policies which are acceptable to, and for the benefit of, the Mortgagee; (c) to cure all title defects or clouds on or claims against Mortgagor's title which may arise or be discovered; (d) to keep all the Mortgaged Property in good condition and repair, and to repair or replace any damaged or destroyed Mortgaged Property. Mortgagor also agrees with respect to Mortgaged Property to comply with all environmental laws and regulations now in force or later promulgated and to disclose to Mortgagee at all times information regarding the environmental status of the Mortgaged Property. Mortgagor grants Mortgagee the right to acquire additional environmental information regarding the Mortgaged Property. Mortgagor also grants Mortgagee or its agents a license to enter onto the Mortgaged Property and inspect it for any reason and further agrees to indemnify Mortgagee for any liability associated with the Mortgaged Property. The discovery of undisclosed environmental hazards on the Mortgaged Property may at option of Mortgagee be considered an Event of Default under this Mortgage. In the Event of the failure of the Mortgagor to fulfill the agreements of this paragraph, the Mortgagee may purchase insurance or pay taxes, assessments, or other liens and appropriate sums to protect the Mortgaged Property, and shall have a lien secured by this Mortgage and assignment for the amount of those sums with interest on those amounts at the maximum rate of interest on any part of the Debt secured by the Mortgage and assignment. If the Mortgaged Property is Mortgagor's homestead and one of the Mortgagors is the spouse of another Mortgagor or the Borrower identified in the Note but is not obligated under the Note, and is only signing this Mortgage to satisfy the requirements of Title 16, Okla. Stat. §4 (which requires a spouse to sign a mortgage on homestead property), then such Mortgagor is not obligated under the provisions of the immediately preceding paragraph and is only signing this Mortgage to convey his or her interest in the Mortgaged Property. If Mortgagee is required to give Mortgagor notice, notice mailed or delivered at least five (5) days before action is taken will be considered reasonable. Mortgagor confers on Mortgagee or its attorney or agent the power to sell the Mortgaged Property and the interests of all persons in it in the manner provided in the Oklahoma Power of Sale Mortgage Foreclosure Act (Title 46 Okla. Stat. §40 et seq.). On the occurrence of an Event of Default (as described in this Mortgage) the Mortgagee may, at its option, accelerate payment of the Debt so that all the Debt shall be immediately due and payable and may either exercise the Power of Sale or foreclose this Mortgage in a judicial foreclosure. The following are considered "Events of Default": (a) any default in payment of the Debt or performance under the Note; (b) Mortgagor fails to perform any covenant or agreement contained in this Mortgage or in any other indebtedness, obligation or agreement of the Mortgagor to Mortgagee or to another; (c) Mortgagor sells, conveys, transfers, hypothecates, or in any other manner ceases to be the owner or in possession of all or any portion of or interest in the Mortgaged Property, except as agreed by Mortgagee in writing or as permitted under applicable law; or (d) Mortgagee believes the prospect of payment under the Note is impaired or the Mortgaged Property is in jeopardy. Subject to the provisions of the Oklahoma Power of Sale Mortgage Foreclosure Act, Mortgagee may accelerate payment of the Debt for the reasons stated in this Mortgage without notice to, or demand on, Mortgagor. The Mortgagor irrevocably appoints the Mortgagee its lawful attorney in fact, with Power of Attorney in its name and stead to collect any income, rents, issues and profits arising from or accruing at any time that are due under each and all of the leases, contracts and agreements, written or verbal, now existing or existing in the future with reference to the Mortgaged Property with the same rights and powers and subject to the same immunities, exoneration of liability and rights of recourse and indemnity as the Mortgagor would have. As often as any action may be taken to foreclose this Mortgage, or to exercise rights under the Power of Sale Mortgage Foreclosure Act, the Mortgagor agrees to pay an attorney's fee to the Mortgagee equal to the greater of a sum of not less than 15% of the amount due or the incurred attorney's fee, in addition to the other sums due, which shall be secured by this Mortgage. If there is a foreclosure of this Mortgage other than by Power of Sale, Mortgagor waives appraisement of the Mortgaged Property, unless Mortgagee seeks an appraisal. Appraisal shall be at the sole option of the Mortgagee, to be declared when the petition to foreclose is filed or when Judgment is taken. Mortgagor understands and agrees that on Mortgagor's default, a court may grant specific performance of Mortgagor's agreements in this Mortgage, and Mortgagee will have the right to take possession of the Mortgaged Property by appointing a receiver in accordance with Title 12 Okla. Stat. §1551.2(c) which authorizes appointment when a condition of a mortgage has not been performed and the mortgage provides for appointment of a receiver. The court may also appoint a receiver upon other grounds as specified in Title 12 Okla. Stat. §1551. "A POWER OF SALE HAS BEEN GRANTED IN THIS MORTGAGE. A POWER OF SALE MAY ALLOW THE MORTGAGEE TO TAKE THE MORTGAGED PROPERTY AND SELL IT WITHOUT GOING TO COURT IN A FORECLOSURE ACTION UPON DEFAULT BY THE MORTGAGOR UNDER THIS MORTGAGE" RECORDER'S MEMORANDUM VIEW ADDITIONAL LAND RECORDS AT OKCOUNTYRECORDS.COM MORTGAGOR(S) SIGNATURE(S) Signed and Delivered on this Dec 8th, 2017. BANYAN OK, LLC BY: Jim Paterson, Manager Tonya Weathers, Manager STATE OF (Oklahoma) COUNTY OF (Beckham) SS: BEFORE ME, the undersigned Notary Public in and for said County and State, on December 8, 2017, personally appeared Jim Paterson, as Manager of Banyan OK, LLC, to me known to be the identical person who executed the within and foregoing instrument as Manager of said limited liability company and acknowledged to me that he executed the same as the free and voluntary act and deed of said Company, for the uses and purposes therein set forth. [SEAL] STATE OF (Oklahoma) COUNTY OF (Beckham) SS: BEFORE ME, the undersigned Notary Public in and for said County and State, on December 8, 2017, personally appeared Tonya Weathers, as Manager of Banyan OK, LLC, to me known to be the identical person who executed the within and foregoing instrument as Manager of said limited liability company and acknowledged to me that he executed the same as the free and voluntary act and deed of said Company, for the uses and purposes therein set forth. [SEAL] EXHIBIT A Three tracts of land lying in the South Half of the Northwest Quarter (S½NW¼) of Section 35, Township 11, Range 21 West of the Indian Meridian, Beckham County, Oklahoma, being described by metes and bounds as follows: Tract One: A tract of land lying in the S½NW¼ of Section 35, Township 11 North, Range 21 West of the Indian Meridian, Beckham County, Oklahoma; Beginning at a point 660.0 feet South of the North line of said S½ NW¼ and 660.0 feet East of the West line of said S½NW¼; Thence North 00°54'40" West along the East line of a tract of land presently owned by Public Service Company of Oklahoma, a distance of 660.0 feet to the North line of said South Half of the Northwest Quarter; Thence South 89°58'39" East along said North line a distance of 368.62 feet; Thence South 00°04'40" East a distance of 436.16 feet; Thence Southeasterly on a curve to the left having a radius of 572.96 feet a distance of 100.00 feet; Thence South 10°04'40' East a distance of 4.41 feet to a point on the North line of South Country Park II Addition to the City of Elk City, Beckham County, Oklahoma; Thence along said Addition as follows; South 89°55'20" West a distance of 25.39 feet; Thence South 10°04'40' East a distance of 51.63 feet; Thence Southeasterly on a curve to the left having a radius of 547.96 feet a distance of 69.63 feet; Thence North 89°58'39" West a distance of 369.38 feet to the point of beginning. LESS AND EXCEPT a tract of land lying in the S½ NW¼ of Section 35, Township 11 North, Range 21 West of the Indian Meridian, Beckham County, Oklahoma, also described by metes and bounds as follows: Beginning at a point 660.00 feet South of the North line of said S½ NW¼ and 728.40 feet East of the West line of said S½ NW¼; Thence North 00°04'40" West a distance of 317.50 feet; Thence South 89°58'39" East a distance of 153.30 feet; Thence South 00°04'40" East a distance of 317.50 feet; Thence North 89°58'39" West a distance of 153.30 feet to the point of beginning. Tract Two: Beginning at a point 878.91 feet South 00°04'40" East and 40.00 feet North 89°55'20" East of the Northwest Corner of said S½ NW¼ of Section 35, Township 11 North, Range 21 West of the Indian Meridian, Beckham County, Oklahoma; Thence North 89°55'20" East perpendicular to the West line of said Section 35, a distance of 466.70 feet; Thence North 00°04'40" West parallel with said West line a distance of 218.03 feet; Thence South 89°58'39" East parallel with the North line of said S½ NW¼ a distance of 342.00 feet; Thence South 00°04'40" East parallel with the West line of said Section 35 a distance of 372.43 feet; Thence South 89°55'20" West perpendicular to said West line of said Section 35 a distance of 138.70 feet; Thence North 00°04'40" West parallel with the West line of said Section 35 a distance of 5.00 feet; Thence South 89°55'20" West perpendicular to said West line of said Section 35 a distance of 670.00 feet; Thence North 00°04'40" West parallel with the West line of said Section 35 a distance of 150.00 feet to the point of beginning. Said tract being same as proposed Lot One (1), Block One (1) of South Country Park I Addition, Elk City, Beckham County, Oklahoma and Lot One (1), Block Ten (10) of proposed South Country Park Addition 11, Elk City, Beckham County, Oklahoma. EXHIBIT A (continued) Tract Three: A tract of land lying in the S1/4 NW1/4 of Section 35, Township 11 North, Range 21 West of the Indian Meridian, Beckham County, Oklahoma; beginning at a point on the West line of said S1/4 NW1/4; said point being 660.00 feet South of the Northwest corner of said S1/4 NW1/4; Thence South 00°04'40" East along said West line a distance of 28.91 feet; Thence North 89°55'20" East along the North boundary line of a tract of land being presently owned by Production Services Inc., a distance of 506.70 feet; Thence North 00°04'40" West parallel with the West line of said S1/4 NW1/4 a distance of 28.03 feet; Thence North 89°58'39" West, parallel with the North line of said S1/4 NW1/4 and along the South boundary line of a tract of land being presently owned by Public Service Company of Oklahoma, a distance of 506.70 feet to the point of beginning.