KINGSWAY FINANCIAL SERVICES INC (Form: 10-Q, Received: 08/04/2016 16:20:49)

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

_________________________

FORM 10-Q



(Mark One)
x	QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For Quarterly Period Ended June 30, 2016
or
o	TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the Transition Period from _____ to _____

Commission File Number: 001-15204

Kingsway Financial Services Inc.

(Exact name of registrant as specified in its charter)

_________________________



Ontario, Canada (State or other jurisdiction of incorporation or organization)		Not Applicable (I.R.S. Employer Identification No.)

45 St. Clair Avenue West, Suite 400 Toronto, Ontario M4V 1K9

(Address of principal executive offices and zip code)

1-416-848-1171

(Registrant's telephone number, including area code)

_________________________

Indicate by checkmark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15 (d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports) and (2) has been subject to such filing requirements for the past 90 days. Yes x No o

Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T ( 232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). Yes x No o

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See definitions of "large accelerated filer," "accelerated filer," and "smaller reporting company" in Rule 12b-2 of the Exchange Act.



Large accelerated filer o	Accelerated filer x	Non-accelerated filer o (Do not check if a smaller reporting company)	Smaller Reporting Company o

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Act). Yes o No x

The number of shares outstanding of the registrant's common stock as of August 4, 2016 was 19,842,806 .



KINGSWAY FINANCIAL SERVICES INC.



Table Of Contents
PART I - FINANCIAL INFORMATION		3
ITEM 1. FINANCIAL STATEMENTS		3
Consolidated Balance Sheets as of June 30, 2016 (unaudited) and December 31, 2015		3
Consolidated Statements of Operations for the Three and Six Months Ended June 30, 2016 and 2015 (unaudited)		4
Consolidated Statements of Comprehensive (Loss) Income for the Three and Six Months Ended June 30, 2016 and 2015 (unaudited)		5
Consolidated Statements of Cash Flows for the Six Months Ended June 30, 2016 and 2015 (unaudited)		6
Notes to Consolidated Financial Statements (unaudited)		7
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS		34
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK		46
ITEM 4. CONTROLS AND PROCEDURES		47
PART II - OTHER INFORMATION		47
ITEM 1. LEGAL PROCEEDINGS		47
ITEM 1A. RISK FACTORS		47
ITEM 2. UNREGISTERED SALES OF EQUITY SECURITIES AND USE OF PROCEEDS		47
ITEM 3. DEFAULTS UPON SENIOR SECURITIES		47
ITEM 4. MINE SAFETY DISCLOSURES		47
ITEM 5. OTHER INFORMATION		47
ITEM 6. EXHIBITS		48
SIGNATURES		49



	2



KINGSWAY FINANCIAL SERVICES INC.

PART I. FINANCIAL INFORMATION

Item 1. Financial Statements

Consolidated Balance Sheets

(in t housands, except per share data)



	June 30, 2016			December 31, 2015
	(unaudited)
Assets
Investments:
Fixed maturities, at fair value (amortized cost of $62,397 and $55,606, respectively)	$	63,003		$	55,559
Equity investments, at fair value (cost of $21,121 and $26,428, respectively)	21,508			27,559
Limited liability investments	21,768			20,141
Other investments, at cost which approximates fair value	5,435			4,077
Short-term investments, at cost which approximates fair value	670			400
Total investments	112,384			107,736
Cash and cash equivalents	39,887			51,701
Investments in investees	4,018			1,772
Accrued investment income	496			594
Premiums receivable, net of allowance for doubtful accounts of $135 and $165, respectively	31,915			27,090
Service fee receivable, net of allowance for doubtful accounts of $288 and $276, respectively	950			911
Other receivables, net of allowance for doubtful accounts of $806 and $806, respectively	3,107			3,789
Reinsurance recoverable	959			1,422
Prepaid reinsurance premiums	91			7
Deferred acquisition costs, net	13,824			12,143
Income taxes recoverable	66			61
Property and equipment, net of accumulated depreciation of $12,632 and $12,537, respectively	5,373			5,577
Goodwill	10,078			10,078
Intangible assets, net of accumulated amortization of $6,541 and $6,009, respectively	14,865			14,736
Other assets	3,124			3,405
Total Assets	$	241,137		$	241,022
Liabilities and Shareholders' Equity

Liabilities:
Unpaid loss and loss adjustment expenses:
Property and casualty	$	52,195		$	55,471
Vehicle service agreements	2,975			2,975
Total unpaid loss and loss adjustment expenses	55,170			58,446
Unearned premiums	41,122			35,234
Reinsurance payable	284			145
Subordinated debt, at fair value	36,302			39,898
Deferred income tax liability	2,968			2,924
Deferred service fees	35,999			34,319
Accrued expenses and other liabilities	20,456			19,959
Total Liabilities	192,301			190,925

Class A preferred stock, no par value; unlimited number authorized; 262,876 and 262,876 issued and outstanding at June 30, 2016 and December 31, 2015, respectively; redemption amount of $6,572	6,411			6,394

Shareholders' Equity:
Common stock, no par value; unlimited number authorized; 19,842,806 and 19,709,706 issued and outstanding at June 30, 2016 and December 31, 2015, respectively	—			—
Additional paid-in capital	342,864			341,646
Accumulated deficit	(311,292		)	(308,995		)
Accumulated other comprehensive income	9,500			9,300
Shareholders' equity attributable to common shareholders	41,072			41,951
Noncontrolling interests in consolidated subsidiaries	1,353			1,752
Total Shareholders' Equity	42,425			43,703
Total Liabilities and Shareholders' Equity	$	241,137		$	241,022

See accompanying notes to unaudited consolidated financial statements.



	3



KINGSWAY FINANCIAL SERVICES INC.

Consolidated Statements of Operations

(in thousands, except per share data)

(Unaudited)



	Three months ended June 30,						Six months ended June 30,
	2016			2015			2016			2015
Revenues:
Net premiums earned	$	31,813		$	30,200		$	61,240		$	59,230
Service fee and commission income	5,394			5,848			10,716			11,246
Net investment income	1,072			528			1,000			1,841
Net realized gains (losses)	67			53			(104		)	53
Other-than-temporary impairment loss	—			—			—			(10		)
Other income	2,791			2,514			5,165			10,871
Total revenues	41,137			39,143			78,017			83,231
Operating expenses:
Loss and loss adjustment expenses	24,838			24,187			48,335			46,140
Commissions and premium taxes	6,103			5,799			11,701			11,546
Cost of services sold	770			1,058			1,543			1,721
General and administrative expenses	10,826			10,175			20,377			21,751
Amortization of intangible assets	307			313			602			630
Contingent consideration (benefit) expense	(657		)	110			(657		)	254
Total operating expenses	42,187			41,642			81,901			82,042
Operating (loss) income	(1,050		)	(2,499		)	(3,884		)	1,189
Other expenses (revenues), net:
Interest expense	1,108			1,414			2,201			2,805
Foreign exchange losses, net	9			760			10			1,152
(Gain) loss on change in fair value of debt	(1,068		)	1,228			(3,596		)	967
Loss on deconsolidation of subsidiary	—			4,420			—			4,420
Equity in net loss of investee	874			71			943			207
Total other expenses (revenues), net	923			7,893			(442		)	9,551
Loss from continuing operations before income tax expense	(1,973		)	(10,392		)	(3,442		)	(8,362		)
Income tax expense	26			34			52			56
Loss from continuing operations	(1,999		)	(10,426		)	(3,494		)	(8,418		)
Income from discontinued operations, net of taxes	—			—			—			1,426
Gain on disposal of discontinued operations, net of taxes	1,124			11,259			1,124			11,259
Net (loss) income	(875		)	833			(2,370		)	4,267
Less: net (loss) income attributable to noncontrolling interests in consolidated subsidiaries	(361		)	(1,064		)	(400		)	160
Less: dividends on preferred stock	82			82			164			163
Net (loss) income attributable to common shareholders	$	(596	)	$	1,815		$	(2,134	)	$	3,944
Loss per share - continuing operations:
Basic:	$	(0.09	)	$	(0.48	)	$	(0.16	)	$	(0.44	)
Diluted:	$	(0.09	)	$	(0.48	)	$	(0.16	)	$	(0.44	)
Earnings per share - discontinued operations:
Basic:	$	0.06		$	0.57		$	0.06		$	0.64
Diluted:	$	0.06		$	0.57		$	0.06		$	0.64
(Loss) earnings per share – net (loss) income attributable to common shareholders:
Basic:	$	(0.03	)	$	0.09		$	(0.11	)	$	0.20
Diluted:	$	(0.03	)	$	0.09		$	(0.11	)	$	0.20
Weighted average shares outstanding (in ‘000s):
Basic:	19,818			19,710			19,764			19,710
Diluted:	19,818			19,710			19,764			19,710

See accompanying notes to unaudited consolidated financial statements.



	4



KINGSWAY FINANCIAL SERVICES INC.

Consolidated Statements of Comprehensive (Loss) Income

(in thousands)

(Unaudited)



	Three months ended June 30,						Six months ended June 30,
	2016			2015			2016			2015

Net (loss) income	$	(875	)	$	833		$	(2,370	)	$	4,267
Other comprehensive income, net of taxes ⁽¹⁾ :
Unrealized gains (losses) on fixed maturities and equity investments:
Unrealized gains (losses) arising during the period	430			(1,068		)	705			(1,268		)
Reclassification adjustment for amounts included in net (loss) income	(73		)	1,451			(505		)	1,464
Foreign currency translation adjustments	—			719			—			693
Recognition of currency translation loss on deconsolidation of subsidiary	—			1,243			—			1,243
Other comprehensive income	357			2,345			200			2,132
Comprehensive (loss) income	(518		)	3,178			(2,170		)	6,399
Less: comprehensive loss attributable to noncontrolling interests in consolidated subsidiaries	(360		)	(1,237		)	(399		)	(310		)
Comprehensive (loss) income attributable to common shareholders	$	(158	)	$	4,415		$	(1,771	)	$	6,709
(1) Net of income tax expense of $0 and $0 for the three and six months ended June 30, 2016 and June 30, 2015, respectively.

See accompanying notes to unaudited consolidated financial statements



	5



KINGSWAY FINANCIAL SERVICES INC.

Consolidated Statements of Cash Flows

(in thousands)

(Unaudited)



	Six months ended June 30,
	2016			2015
Cash provided by (used in):
Operating activities:
Net (loss) income	$	(2,370	)	$	4,267
Adjustments to reconcile net (loss) income to net cash used in operating activities:
Gain on disposal of discontinued operations, net of taxes	(1,124		)	(11,259		)
Equity in net loss of investee	943			207
Equity in net income of limited liability investments	(310		)	(995		)
Depreciation and amortization expense	697			954
Contingent consideration (benefit) expense	(657		)	254
Stock-based compensation expense, net of forfeitures	474			405
Net realized losses (gains)	104			(53		)
(Gain) loss on change in fair value of debt	(3,596		)	967
Deferred income taxes	44			43
Other-than-temporary impairment loss	—			10
Amortization of fixed maturities premiums and discounts	133			164
Loss on deconsolidation of subsidiary	—			4,420
Changes in operating assets and liabilities:
Premiums and service fee receivable, net	(4,864		)	(1,058		)
Other receivables, net	682			(1,707		)
Reinsurance recoverable	463			2,147
Prepaid reinsurance premiums	(84		)	(83		)
Deferred acquisition costs, net	(1,681		)	(420		)
Income taxes recoverable	(5		)	17
Unpaid loss and loss adjustment expenses	(3,276		)	(5,676		)
Unearned premiums	5,888			1,416
Reinsurance payable	139			32
Deferred service fees	1,680			(400		)
Other, net	1,408			(1,235		)
Net cash used in operating activities	(5,312		)	(7,583		)
Investing activities:
Proceeds from sales and maturities of fixed maturities	13,349			18,861
Proceeds from sales of equity investments	3,721			307
Purchases of fixed maturities	(19,781		)	(19,727		)
Purchases of equity investments	(1,541		)	(4,281		)
Net acquisitions of limited liability investments	(1,017		)	(4,495		)
Net purchases of other investments	(1,357		)	—
Net (purchases of) proceeds from short-term investments	(533		)	4
Net proceeds from sale of discontinued operations	1,404			44,919
Net purchases of property and equipment and intangible assets	(622		)	(144		)
Net cash (used in) provided by investing activities	(6,377		)	35,444
Financing activities:
Repurchase of common stock for cancellation	(125		)	—
Redemption of LROC preferred units	—			(12,920		)
Net cash used in financing activities	(125		)	(12,920		)
Net (decrease) increase in cash and cash equivalents	(11,814		)	14,941
Cash and cash equivalents at beginning of period	51,701			71,234
Cash and cash equivalents at end of period	$	39,887		$	86,175

See accompanying notes to unaudited consolidated financial statements.



	6



KINGSWAY FINANCIAL SERVICES INC. Notes to Consolidated Financial Statements (Unaudited) June 30, 2016

NOTE 1 BUSINESS

Kingsway Financial Services Inc. (the "Company" or "Kingsway") was incorporated under the Business Corporations Act (Ontario) on September 19, 1989. Kingsway is a Canadian holding company with operating subsidiaries located in the United States. The Company operates as a merchant bank primarily engaged, through its subsidiaries, in the property and casualty insurance business.

NOTE 2 BASIS OF PRESENTATION

The accompanying unaudited consolidated interim financial statements have been prepared in accordance with accounting principles generally accepted in the United States of America ("U.S. GAAP") for interim financial information and with the instructions to Form 10-Q and Article 10 of Regulation S-X. Accordingly, they do not include all of the information and notes required by U.S. GAAP for complete financial statements of the Company. In the opinion of management, all adjustments necessary for a fair presentation have been included and are of a normal recurring nature. Interim results are not necessarily indicative of the results that may be expected for the year.

The accompanying unaudited consolidated interim financial statements and footnotes should be read in conjunction with the audited consolidated financial statements and footnotes included within our Annual Report on Form 10-K (" 2015 Annual Report") for the year ended December 31, 2015 .

The unaudited consolidated interim financial statements include the accounts of the Company and its subsidiaries. All material intercompany transactions and balances have been eliminated in consolidation.

The preparation of consolidated financial statements in conformity with U.S. GAAP requires management to make estimates and assumptions that affect application of policies and the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the consolidated financial statements and the reported amounts of revenues and expenses during the year. Actual results could differ from these estimates. Estimates and their underlying assumptions are reviewed on an ongoing basis. Changes in estimates are recorded in the accounting period in which they are determined. The critical accounting estimates and assumptions in the accompanying unaudited consolidated interim financial statements include the provision for unpaid loss and loss adjustment expenses; valuation of fixed maturities and equity investments; valuation of deferred income taxes; valuation and impairment assessment of intangible assets; goodwill recoverability; deferred acquisition costs; fair value assumptions for performance shares; fair value assumptions for debt obligations; and contingent consideration.

The fair values of the Company's investments in fixed maturities and equity investments, performance shares, subordinated debt and contingent consideration are estimated using a fair value hierarchy to categorize the inputs it uses in valuation techniques. The fair value of the Company's investments in investees is based on quoted market prices. Fair values for other investments approximate their unpaid principal balance. The carrying amounts reported in the consolidated balance sheets approximate fair values for cash, short-term investments and certain other assets and other liabilities because of their short-term nature.

The Company's financial results contained herein are reported in U.S. dollars unless otherwise indicated.

NOTE 3 SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES

There have been no material changes to our significant accounting policies as reported in our 2015 Annual Report. The Company has added the following significant account policy, effective beginning with the second quarter of 2016.

Revenue recognition:

Contingent revenue

The terms of the sale of one of the Company's subsidiaries includes potential receipt by the Company of future earnout payments. The gain related to the earnout payments is recorded when the consideration is determined to be realizable and is reported in the statements of operations as gain on disposal of discontinued operations, net of taxes.

NOTE 4 RECENTLY ISSUED ACCOUNTING STANDARDS

(a) Adoption of New Accounting Standards:

In April 2014, the Financial Accounting Standards Board ("FASB") issued Accounting Standards Update ("ASU") 2014-08, Presentation of Financial Statements (Topic 205) and Property, Plant, and Equipment (Topic 360): Reporting Discontinued Operations and Disclosures of Disposals of Components of an Entity ("ASU 2014-08"). ASU 2014-08 amends the requirements



	7



KINGSWAY FINANCIAL SERVICES INC. Notes to Consolidated Financial Statements (Unaudited) June 30, 2016

for reporting and disclosing discontinued operations. Under ASU 2014-08, a disposal of a component of an entity or a group of components of an entity is required to be reported in discontinued operations if the disposal represents a strategic shift that has or will have a major effect on the entity’s operations and financial results. Effective January 1, 2015, the Company adopted ASU 2014-08. The adoption of the standard did not have an impact on the consolidated financial statements.

In February 2015, the FASB issued ASU 2015-02, Consolidation (Topic 810): Amendments to the Consolidation Analysis ("ASU 2015-02"). The amendments in ASU 2015-02 affect reporting entities that are required to evaluate whether they should consolidate certain legal entities. All legal entities are subject to reevaluation under the revised consolidation model. Specifically, the amendments modify the evaluation of whether limited partnerships and similar legal entities are variable interest entities ("VIEs") or voting interest entities while also eliminating the presumption that a general partner should consolidate a limited partnership. Effective January 1, 2016, the Company adopted ASU 2015-02. The adoption of the standard did not have an impact on the consolidated financial statements.

In September 2015, the FASB issued ASU 2015-16, Business Combinations (Topic 805): Simplifying the Accounting for Measurement-Period Adjustments ("ASU 2015-16"). ASU 2015-16 simplifies the accounting for measurement-period adjustments in a business combination by requiring the acquirer to recognize adjustments to provisional amounts that are identified during the measurement period in the reporting period in which the adjustment amounts are determined. The effect on earnings as a result of the change to the provisional amounts, calculated as if the accounting had been completed as of the acquisition date, must be recorded in the reporting period in which the adjustment amounts are determined rather than retrospectively. The effects, by line item, if any, must be disclosed. Effective January 1, 2016, the Company adopted ASU 2015-16. The adoption of the standard did not have an impact on the consolidated financial statements.

In March 2016, the FASB issued ASU 2016-07, Investments-Equity Method and Joint Ventures (Topic 323): Simplifying the Transition to the Equity Method of Accounting ("ASU 2016-07"). ASU 2016-07 simplifies the transition to equity method accounting by requiring an equity method investor to add the cost of acquiring the additional interest in the investee to the current basis of the investor's previously held interest and adopt the equity method of accounting as of the date the investment becomes qualified for equity method accounting. ASU 2016-07 is effective for annual reporting periods beginning after December 15, 2016 and should be applied prospectively upon the effective date. Early adoption is permitted. Effective January 1, 2016, the Company adopted ASU 2016-07. The adoption of the standard did not have a material impact on the consolidated financial statements.

(b) Accounting Standards Not Yet Adopted:

In May 2014, the FASB issued ASU 2014-09, Revenue from Contracts with Customers ("ASU 2014-09"), which outlines a single comprehensive model for entities to use in accounting for revenue arising from contracts with customers. The core principle of ASU 2014-09 is that an entity recognizes revenue to depict the transfer of promised goods or services to customers in an amount that reflects the consideration to which the entity expects to be entitled in exchange for those goods or services. In August 2015, the FASB issued ASU 2015-14, Revenue from Contracts with Customers (Topic 606): Deferral of the Effective Date ("ASU 2015-14"). This amendment defers the effective date of the previously issued ASU 2014-09 until the interim and annual reporting periods beginning after December 15, 2017. Earlier application is permitted for interim and annual reporting periods beginning after December 15, 2016. Insurance contracts are not within the scope of ASU 2014-09; therefore, this standard would not apply to the Company's Insurance Underwriting segment. The Company is currently evaluating the impact of the adoption of ASU 2014-09 on its consolidated financial statements.

In May 2015, the FASB issued ASU 2015-09, Financial Services-Insurance (Topic 944): Disclosures about Short-Duration Contracts ("ASU 2015-09"). ASU 2015-09 was issued to enhance disclosures about an entity’s insurance liabilities, including the nature, amount, timing and uncertainty of cash flows related to those liabilities. ASU 2015-09 is effective for annual reporting periods beginning after December 15, 2015 and for interim periods beginning after December 15, 2016. Early adoption is permitted. Except for the increased disclosure requirements, the Company does not believe the adoption will have a material effect on its consolidated financial statements.

In January 2016, the FASB issued ASU 2016-01, Financial Instruments-Overall (Subtopic 825-10): Recognition and Measurement of Financial Assets and Financial Liabilities ("ASU 2016-01"). The amendments in ASU 2016-01 address certain aspects of recognition, measurement, presentation, and disclosure of financial instruments. Most significantly, ASU 2016-01 requires equity investments (except those accounted for under the equity method of accounting or those that result in consolidation of an investee) to be measured at fair value with changes in fair value recognized in net income (loss). For public business entities, the amendments in ASU 2016-01 are effective for fiscal years beginning after December 15, 2017, including interim periods within those fiscal years, and will be applied using a cumulative-effect adjustment to accumulated deficit as of the beginning of the fiscal year of adoption. The Company currently records its equity investments at fair value with net unrealized gains or losses reported in accumulated other comprehensive income. Adoption of ASU 2016-01 will require the changes in fair value on equity investments



	8



KINGSWAY FINANCIAL SERVICES INC. Notes to Consolidated Financial Statements (Unaudited) June 30, 2016

with readily determinable fair values to be recorded in net (loss) income. Adoption of ASU 2016-01 is not expected to have a material impact on the Company's financial position, cash flows, or total comprehensive (loss) income, but could have a significant impact on the Company's results of operations and (loss) earnings per share as changes in fair value will be presented in net (loss) income rather than other comprehensive (loss) income.

In February 2016, the FASB issued ASU 2016-02, Leases ("ASU 2016-02"). ASU 2016-02 was issued to improve the financial reporting of leasing transactions. Under current guidance for lessees, leases are only included on the balance sheet if certain criteria, classifying the agreement as a capital lease, are met. This update will require the recognition of a right-of-use asset and a corresponding lease liability, discounted to the present value, for all leases that extend beyond 12 months. For operating leases, the asset and liability will be expensed over the lease term on a straight-line basis, with all cash flows included in the operating section of the statement of cash flows. For finance leases, interest on the lease liability will be recognized separately from the amortization of the right-of-use asset in the statement of comprehensive income and the repayment of the principal portion of the lease liability will be classified as a financing activity while the interest component will be included in the operating section of the statement of cash flows. ASU 2016-02 is effective for annual and interim reporting periods beginning after December 15, 2018. Early adoption is permitted. Upon adoption, leases will be recognized and measured at the beginning of the earliest period presented using a modified retrospective approach. The Company is currently evaluating the impact of the adoption of ASU 2016-02 on its consolidated financial statements.

In March 2016, the FASB issued ASU 2016-09, Compensation - Stock Compensation (Topic 718): Improvements to Employee Share-Based Payment Accounting ("ASU 2016-09"). ASU 2016-09 was issued to simplify the accounting for share-based payment awards. The guidance requires that, prospectively, all tax effects related to share-based payments be made through the statement of operations at the time of settlement as opposed to excess tax benefits being recognized in additional paid-in-capital under the current guidance. ASU 2016-09 also removes the requirement to delay recognition of a tax benefit until it reduces current taxes payable. This change is required to be applied on a modified retrospective basis, with a cumulative-effect adjustment to opening accumulated deficit. Additionally, all tax related cash flows resulting from share-based payments are to be reported as operating activities on the statement of cash flows, a change from the current requirement to present tax benefits as an inflow from financing activities and an outflow from operating activities. ASU 2016-09 is effective for annual and interim reporting periods beginning after December 15, 2016. Early adoption is permitted with any adjustments reflected as of the beginning of the fiscal year of adoption. The Company does not believe the adoption of ASU 2016-09 will have a material impact on its consolidated financial statements.

NOTE 5 ACQUISITION, DECONSOLIDATION AND DISCONTINUED OPERATIONS

(a) Acquisition

Effective April 21, 2016, the Company issued 160,000 shares of its common stock to acquire Argo Management Group LLC ("Argo"). The Argo purchase price of $0.7 million was determined using the closing price of Kingsway common stock on the date the 160,000 shares were issued. The consolidated statements of operations include the earnings of Argo from the date of acquisition. No supplemental proforma revenue and earnings information related to the acquisition has been presented for the three and six months ended June 30, 2016 , as the impact is immaterial. Argo’s primary business is to act as the Managing Member of Argo Holdings Fund I, LLC, an investment fund organized for purposes of making control-oriented equity investments in established lower middle market companies based in North America, with a focus on search fund investments.

This acquisition was accounted for as a business combination using the acquisition method of accounting. The purchase price was allocated to the assets purchased and liabilities assumed based upon their estimated fair values at the date of acquisition. During the second quarter of 2016, the Company completed its fair value analysis on the assets acquired and liabilities assumed. Separately identifiable intangible assets of $0.7 million were recognized resulting from the valuations of contract-based management fee and promote fee revenues. Refer to Note 9 , " Intangible Assets ," for further disclosure of the intangible assets related to this acquisition.



	9



KINGSWAY FINANCIAL SERVICES INC. Notes to Consolidated Financial Statements (Unaudited) June 30, 2016

The following table summarizes the estimated fair value of the assets acquired and liabilities assumed at the date of acquisition.



(in thousands)
	April 21, 2016
Cash and cash equivalents	$	5
Other receivables	17
Intangible assets - subject to amortization	731
Other assets	5
Total assets	$	758

Accrued expenses and other liabilities	$	14
Total liabilities	$	14

Purchase price	$	744

(b) Deconsolidation

On July 14, 2005, Kingsway Linked Return of Capital Trust ("KLROC Trust") completed its public offering of C $78.0 million through the issuance of 3,120,000 LROC 5% preferred units due June 30, 2015 ("LROC preferred units"), of which the Company was a promoter. KLROC Trust’s net proceeds of the public offering was C $74.1 million .

Beginning in 2009, the Company began purchasing LROC preferred units. During 2009, the Company acquired 833,715 LROC preferred units. During the second quarter of 2010, the Company commenced the take-over bid (the "KLROC Offer") to acquire up to 1,500,000 units at a price per unit of C $20.00 in cash. The KLROC Offer expired on July 23, 2010, and 1,525,150 units were tendered, of which 1,500,000 were purchased on a pro-rata basis. The tender was paid for using available cash.

As a result of these acquisitions, the Company beneficially owned and controlled 2,333,715 units, representing 74.8% of the issued and outstanding LROC preferred units and began consolidating the financial statements of KLROC Trust effective July 23, 2010. In the consolidated financial statements, the par value of the units owned was netted against the liability related to the LROC preferred units due June 30, 2015. At December 31, 2014, the Company's outstanding net obligation was C $15.8 million .

During the second quarter of 2015, the Company's controlling interest in KLROC Trust was reduced to zero upon the Company's repayment of its C $15.8 million outstanding on its LROC preferred units due June 30, 2015. As a result, the Company recorded a non-cash loss on deconsolidation of KLROC Trust of $4.4 million . This reported loss results from removing the net assets and accumulated other comprehensive loss of KLROC Trust from the Company’s consolidated balance sheets.

On April 1, 2015, the Company closed on the sale of its subsidiary, Assigned Risk Solutions Ltd. ("ARS") for $47.0 million in cash. During the second quarter of 2015, the Company received additional post-closing cash consideration of $2.0 million . The terms of the sale also provide for potential receipt by the Company of future earnout payments equal to 1.25% of ARS' written premium and fee income during the earnout periods. The earnout payments are payable in three annual installments beginning in April 2016 through April 2018. During the second quarter of 2016, the Company received cash consideration of $1.4 million , representing the first annual installment earnout payment. Net of expenses, the Company recorded an additional gain on disposal of ARS of $1.1 million for the three and six months ended June 30, 2016 . As a result of the sale, ARS, previously disclosed as part of the Insurance Services segment, has been classified as a discontinued operation. The earnings of ARS are disclosed as discontinued operations in the unaudited consolidated statements of operations for all periods presented. Summary financial information included in income from discontinued operations, net of taxes for the three and six months ended June 30, 2016 and June 30, 2015 is presented below:



	10



KINGSWAY FINANCIAL SERVICES INC. Notes to Consolidated Financial Statements (Unaudited) June 30, 2016



(in thousands)	Three months ended June 30,					Six months ended June 30,
	2016		2015			2016		2015
Revenues:
Service fee and commission income	$	—	$	—		$	—	$	8,342
Other expense	—		—			—		(20		)
Total revenues	—		—			—		8,322
Expenses:
General and administrative expenses	—		—			—		6,462
Income from discontinued operations before income tax expense	—		—			—		1,860
Income tax expense	—		—			—		434
Income from discontinued operations, net of taxes	—		—			$	—	$	1,426
Gain on disposal of discontinued operations before income tax benefit	1,124		11,010			1,124		11,010
Income tax benefit	—		(249		)	—		(249		)
Gain on disposal of discontinued operations, net of taxes	1,124		11,259			1,124		11,259
Total gain from discontinued operations, net of taxes	$	1,124	$	11,259		$	1,124	$	12,685

For the six months ended June 30, 2016 and June 30, 2015 , ARS' net cash used in operating activities was zero and $0.2 million , respectively. ARS had no cash flows from investing activities for the six months ended June 30, 2016 and June 30, 2015 .



	11



KINGSWAY FINANCIAL SERVICES INC. Notes to Consolidated Financial Statements (Unaudited) June 30, 2016

NOTE 6 INVESTMENTS

The amortized cost, gross unrealized gains and losses, and estimated fair value of the Company's investments in fixed maturities and equity investments at June 30, 2016 and December 31, 2015 are summarized in the tables shown below:



(in thousands)	June 30, 2016
	Amortized Cost		Gross Unrealized Gains		Gross Unrealized Losses		Estimated Fair Value
Fixed maturities:
U.S. government, government agencies and authorities	$	27,501	$	215	$	—	$	27,716
States, municipalities and political subdivisions	3,892		23		—		3,915
Mortgage-backed	7,236		118		4		7,350
Asset-backed securities and collateralized mortgage obligations	4,595		23		2		4,616
Corporate	19,173		251		18		19,406
Total fixed maturities	62,397		630		24		63,003
Equity investments:
Common stock	19,870		2,988		2,045		20,813
Warrants	1,251		18		574		695
Total equity investments	21,121		3,006		2,619		21,508
Total fixed maturities and equity investments	$	83,518	$	3,636	$	2,643	$	84,511



(in thousands)	December 31, 2015
	Amortized Cost		Gross Unrealized Gains		Gross Unrealized Losses		Estimated Fair Value
Fixed maturities:
U.S. government, government agencies and authorities	$	20,443	$	73	$	63	$	20,453
States, municipalities and political subdivisions	2,241		20		5		2,256
Mortgage-backed	7,997		25		59		7,963
Asset-backed securities and collateralized mortgage obligations	6,040		4		21		6,023
Corporate	18,885		60		81		18,864
Total fixed maturities	55,606		182		229		55,559
Equity investments:
Common stock	25,177		3,464		2,055		26,586
Warrants	1,251		52		330		973
Total equity investments	26,428		3,516		2,385		27,559
Total fixed maturities and equity investments	$	82,034	$	3,698	$	2,614	$	83,118



	12



KINGSWAY FINANCIAL SERVICES INC. Notes to Consolidated Financial Statements (Unaudited) June 30, 2016

The table below summarizes the Company's fixed maturities at June 30, 2016 by contractual maturity periods. Actual results may differ as issuers may have the right to call or prepay obligations, with or without penalties, prior to the contractual maturity of these obligations.



(in thousands)	June 30, 2016
	Amortized Cost		Estimated Fair Value
Due in one year or less	$	8,686	$	8,702
Due after one year through five years	42,813		43,258
Due after five years through ten years	3,378		3,418
Due after ten years	7,520		7,625
Total	$	62,397	$	63,003

The following tables highlight the aggregate unrealized loss position, by security type, of fixed maturities and equity investments in unrealized loss positions as of June 30, 2016 and December 31, 2015 . The tables segregate the holdings based on the period of time the investments have been continuously held in unrealized loss positions.



(in thousands)									June 30, 2016
	Less than 12 Months				Greater than 12 Months				Total
	Estimated Fair Value		Unrealized Loss		Estimated Fair Value		Unrealized Loss		Estimated Fair Value		Unrealized Loss
Fixed maturities:
U.S. government, government agencies and authorities	$	701	$	—	$	—	$	—	$	701	$	—
States, municipalities and political subdivisions	160		—		—		—		160		—
Mortgage-backed	981		3		146		1		1,127		4
Asset-backed securities and collateralized mortgage obligations	1,587		1		252		1		1,839		2
Corporate	2,623		13		745		5		3,368		18
Total fixed maturities	6,052		17		1,143		7		7,195		24
Equity investments:
Common stock	8,461		1,657		982		388		9,443		2,045
Warrants	651		542		1		32		652		574
Total equity investments	9,112		2,199		983		420		10,095		2,619
Total	$	15,164	$	2,216	$	2,126	$	427	$	17,290	$	2,643



	13



KINGSWAY FINANCIAL SERVICES INC. Notes to Consolidated Financial Statements (Unaudited) June 30, 2016



(in thousands)									December 31, 2015
	Less than 12 Months				Greater than 12 Months				Total
	Estimated Fair Value		Unrealized Loss		Estimated Fair Value		Unrealized Loss		Estimated Fair Value		Unrealized Loss
Fixed maturities:
U.S. government, government agencies and authorities	$	12,635	$	63	$	—	$	—	$	12,635	$	63
States, municipalities and political subdivisions	745		5		—		—		745		5
Mortgage-backed	5,685		59		—		—		5,685		59
Asset-backed securities and collateralized mortgage obligations	5,035		21		—		—		5,035		21
Corporate	9,171		81		—		—		9,171		81
Total fixed maturities	33,271		229		—		—		33,271		229
Equity investments:
Common stock	15,711		2,055		—		—		15,711		2,055
Warrants	897		330		—		—		897		330
Total equity investments	16,608		2,385		—		—		16,608		2,385
Total	$	49,879	$	2,614	$	—	$	—	$	49,879	$	2,614

Fixed maturities and equity investments contain approximately 61 and 127 individual investments that were in unrealized loss positions as of June 30, 2016 and December 31, 2015 , respectively.

The establishment of an other-than-temporary impairment on an investment requires a number of judgments and estimates. The Company performs a quarterly analysis of the individual investments to determine if declines in market value are other-than-temporary. The analysis includes some or all of the following procedures as deemed appropriate by the Company:


•	identifying all unrealized loss positions that have existed for at least six months;


•	identifying other circumstances which management believes may impact the recoverability of the unrealized loss positions;


•	obtaining a valuation analysis from third-party investment managers regarding the intrinsic value of these investments based on their knowledge and experience together with market-based valuation techniques;


•	reviewing the trading range of certain investments over the preceding calendar period;


•	assessing if declines in market value are other-than-temporary for debt instruments based on the investment grade credit ratings from third-party rating agencies;


•	assessing if declines in market value are other-than-temporary for any debt instrument with a non-investment grade credit rating based on the continuity of its debt service record;


•	determining the necessary provision for declines in market value that are considered other-than-temporary based on the analyses performed; and


•	assessing the Company's ability and intent to hold these investments at least until the investment impairment is recovered.

The risks and uncertainties inherent in the assessment methodology used to determine declines in market value that are other-than-temporary include, but may not be limited to, the following:


•	the opinions of professional investment managers could be incorrect;


•	the past trading patterns of individual investments may not reflect future valuation trends;


•	the credit ratings assigned by independent credit rating agencies may be incorrect due to unforeseen or unknown facts related to a company's financial situation; and


•	the debt service pattern of non-investment grade instruments may not reflect future debt service capabilities and may not reflect a company's unknown underlying financial problems.



	14



KINGSWAY FINANCIAL SERVICES INC. Notes to Consolidated Financial Statements (Unaudited) June 30, 2016

June 30, 2016 . For the three months ended June 30, 2015 , there were no write-downs for other-than-temporary impairments related to investments. For the six months ended June 30, 2015 , the Company recorded a write-down of $0.0 million for other-than-temporary impairment related to fixed maturities.

There were no other-than-temporary losses recognized in other comprehensive loss for the three and six months ended June 30, 2016 , or for the three months ended June 30, 2015 . There were $0.0 million of other-than-temporary losses recognized in other comprehensive income for the six months ended June 30, 2015 .

The Company has reviewed currently available information regarding investments with estimated fair values that are less than their carrying amounts and believes that these unrealized losses are not other-than-temporary and are primarily due to temporary market and sector-related factors rather than to issuer-specific factors. The Company does not intend to sell those investments, and it is not likely that it will be required to sell those investments before recovery of its amortized cost.

The Company does not have any exposure to subprime mortgage-backed investments.

Limited liability investments include investments in limited liability companies, limited partnerships and a general partnership that primarily invest in income-producing real estate or real estate-related investments. The Company's interests in these investments are not deemed minor and, therefore, are accounted for under the equity method of accounting. The most recently available financial statements are used in applying the equity method. The difference between the end of the reporting period of the limited liability entities and that of the Company is no more than three months. As of June 30, 2016 and December 31, 2015 , the carrying value of limited liability investments totaled $21.8 million and $20.1 million , respectively. At June 30, 2016 , the Company has unfunded commitments totaling $1.8 million to fund limited liability investments. Income from limited liability investments is recognized based on the Company's share of the earnings of the limited liability entities and is included in net investment income.

Other investments include mortgage and collateral loans and are reported at their unpaid principal balance. As of June 30, 2016 and December 31, 2015 , the carrying value of other investments totaled $5.4 million and $4.1 million , respectively.

Gross realized gains and losses on fixed maturities, equity investments and limited liability investments for the three and six months ended June 30, 2016 and June 30, 2015 were as follows:



(in thousands)	Three months ended June 30,					Six months ended June 30,
	2016			2015		2016			2015
Gross realized gains	$	214		$	53	$	248		$	53
Gross realized losses	(147		)	—		(352		)	—
Net realized gains (losses)	$	67		$	53	$	(104	)	$	53

Net investment income for the three and six months ended June 30, 2016 and June 30, 2015 , respectively, is comprised as follows:



(in thousands)	Three months ended June 30,						Six months ended June 30,
	2016			2015			2016			2015
Investment income
Interest from fixed maturities	$	242		$	124		$	460		$	393
Dividends	126			201			392			348
Income from limited liability investments	511			66			310			995
Gain (loss) on change in fair value of warrants	141			165			(246		)	165
Other	100			32			139			66
Gross investment income	1,120			588			1,055			1,967
Investment expenses	(48		)	(60		)	(55		)	(126		)
Net investment income	$	1,072		$	528		$	1,000		$	1,841

At June 30, 2016 , fixed maturities and short-term investments with an estimated fair value of $13.4 million were on deposit with state and provincial regulatory authorities. Also, from time to time, the Company pledges investments to third-parties as a deposit or to collateralize liabilities incurred under its policies of insurance. At June 30, 2016 , the amount of such pledged securities was $17.3 million .



	15



KINGSWAY FINANCIAL SERVICES INC. Notes to Consolidated Financial Statements (Unaudited) June 30, 2016

NOTE 7 INVESTMENTS IN INVESTEES

Investments in investees includes the Company's investments in the common stock and private units of 1347 Capital Corp. and the common stock of Itasca Capital Ltd. ("ICL"). Investments in investees are accounted for under the equity method. Prior to the second quarter of 2016, the Company's investment in ICL was included in equity investments in the consolidated balance sheets. During the second quarter of 2016, the Company's ownership percentage in ICL was increased to 31.2% . As a result of this change in ownership, the Company has determined that its investment in the common stock of ICL qualifies for the equity method of accounting and, thus, is included in investments in investees in the consolidated balance sheet at June 30, 2016 . The Company's investment in ICL will be recorded on a three-month lag basis. The carrying value, estimated fair value and approximate equity percentage for the Company's investments in investees at June 30, 2016 and December 31, 2015 were as follows:



(in thousands, except for percentages)
	June 30, 2016						December 31, 2015
	Equity Percentage		Estimated Fair Value		Carrying Value		Equity Percentage		Estimated Fair Value		Carrying value
1347 Capital Corp.	21.0	%	$	11,654	$	828	21.0	%	$	12,369	$	1,772
ICL	31.2	%	$	3,190	$	3,190	—	%	$	—	$	—
Total			$	14,844	$	4,018			$	12,369	$	1,772

For the three months ended June 30, 2016 and June 30, 2015 , equity in net loss of investee represents the Company's investment in 1347 Capital Corp. and was $0.9 million and $0.1 million , respectively ( $0.9 million and $0.2 million for the six months ended June 30, 2016 and June 30, 2015 , respectively).

NOTE 8 DEFERRED ACQUISITION COSTS

Policy acquisition costs consist primarily of commissions, premium taxes, and underwriting and agency expenses, net of ceding commission income, incurred related to successful efforts to acquire new or renewal insurance contracts and vehicle service agreements. Acquisition costs deferred on both property and casualty insurance products and vehicle service agreements are amortized over the period in which the related revenues are earned.

The components of deferred acquisition costs and the related amortization expense for the three and six months ended June 30, 2016 and 2015 , respectively, are comprised as follows:



(in thousands)	Three months ended June 30,						Six months ended June 30,
	2016			2015			2016			2015
Beginning balance, net	$	13,440		$	13,203		$	12,143		$	12,197
Additions	7,180			6,164			14,769			13,718
Amortization	(6,796		)	(6,750		)	(13,088		)	(13,298		)
Balance at June 30, net	$	13,824		$	12,617		$	13,824		$	12,617



	16



KINGSWAY FINANCIAL SERVICES INC. Notes to Consolidated Financial Statements (Unaudited) June 30, 2016

NOTE 9 INTANGIBLE ASSETS

Intangible assets are comprised as follows:



(in thousands)			June 30, 2016
	Gross Carrying Value			Accumulated Amortization		Net Carrying Value
Intangible assets subject to amortization
Database	$	4,918		$	1,783	$	3,135
Vehicle service agreements in-force	3,680			3,458		222
Customer-related relationships	3,611			1,287		2,324
Contract-based revenues	731			13		718
Intangible assets not subject to amortization
Insurance licenses	7,803			—		7,803
Trade name	663			—		663
Total	$	21,406		$	6,541	$	14,865



(in thousands)			December 31, 2015
	Gross Carrying Value			Accumulated Amortization		Net Carrying Value
Intangible assets subject to amortization
Database	$	4,918		$	1,537	$	3,381
Vehicle service agreements in-force	3,680			3,362		318
Customer-related relationships	3,611			1,040		2,571
Non-compete agreement	70			70		—
Intangible assets not subject to amortization
Insurance licenses	7,803			—		7,803
Trade name	663			—		663
Total	$	20,745		$	6,009	$	14,736

As further discussed in Note 5 , " Acquisition, Deconsolidation and Discontinued Operations ," during the second quarter of 2016, the Company recorded $0.7 million of separately identifiable intangible assets for contract-based management fee and promote fee revenues as part of the acquisition of Argo. The contract-based management fee revenue intangible asset is being amortized over nine years. The contract-based promote fee revenue intangible asset is being amortized over a three-year period beginning in 2022. The amortization periods for the contract-based revenues intangible assets are based on the patterns in which the economic benefits of the intangible assets are expected to be consumed.

The Company's other intangible assets with definite useful lives are amortized either based on the patterns in which the economic benefits of the intangible assets are expected to be consumed or using the straight-line method over their estimated useful lives, which range from three to fifteen years. Amortization of intangible assets was $0.3 million and $0.3 million for the three months ended June 30, 2016 and June 30, 2015 , respectively ( $0.6 million and $0.6 million for the six months ended June 30, 2016 and June 30, 2015 , respectively). The insurance licenses and trade name intangible assets have indefinite useful lives and are not amortized.



	17



KINGSWAY FINANCIAL SERVICES INC. Notes to Consolidated Financial Statements (Unaudited) June 30, 2016

NOTE 10 UNPAID LOSS AND LOSS ADJUSTMENT EXPENSES

The establishment of the provision for unpaid loss and loss adjustment expenses is based on known facts and interpretation of circumstances and is, therefore, a complex and dynamic process influenced by a large variety of factors. These factors include the Company's experience with similar cases and historical trends involving loss payment patterns, pending levels of unpaid loss and loss adjustment expenses, product mix or concentration, loss severity and loss frequency patterns.

Other factors include the continually evolving and changing regulatory and legal environment; actuarial studies; professional experience and expertise of the Company's claims departments' personnel and independent adjusters retained to handle individual claims; the quality of the data used for projection purposes; existing claims management practices including claims-handling and settlement practices; the effect of inflationary trends on future loss settlement costs; court decisions; economic conditions; and public attitudes.

Consequently, the process of determining the provision for unpaid loss and loss adjustment expenses necessarily involves risks that the actual loss and loss adjustment expenses incurred by the Company will deviate, perhaps materially, from the estimates recorded.

The Company's evaluation of the adequacy of unpaid loss and loss adjustment expenses includes a re-estimation of the liability for unpaid loss and loss adjustment expenses relating to each preceding financial year compared to the liability that was previously established.

(a) Property and Casualty

The results of this comparison and the changes in the provision for property and casualty unpaid loss and loss adjustment expenses, net of amounts recoverable from reinsurers, as of June 30, 2016 and June 30, 2015 were as follows:



(in thousands)	June 30, 2016			June 30, 2015
Balance at beginning of period, gross	$	55,471		$	63,895
Less reinsurance recoverable related to property and casualty unpaid loss and loss adjustment expenses	1,207			3,203
Balance at beginning of period, net	54,264			60,692
Incurred related to:
Current year	45,614			43,610
Prior years	67			(484		)
Paid related to:
Current year	(22,060		)	(21,418		)
Prior years	(26,535		)	(26,009		)
Balance at end of period, net	51,350			56,391
Plus reinsurance recoverable related to property and casualty unpaid loss and loss adjustment expenses	845			1,828
Balance at end of period, gross	$	52,195		$	58,219



	18



KINGSWAY FINANCIAL SERVICES INC. Notes to Consolidated Financial Statements (Unaudited) June 30, 2016

(b) Vehicle Service Agreements

The results of the comparison and the changes in the provision for vehicle service agreement unpaid loss and loss adjustment expenses as of June 30, 2016 and June 30, 2015 were as follows:



(in thousands)	June 30, 2016			June 30, 2015
Balance at beginning of period	$	2,975		$	2,975
Incurred related to:
Current year	2,654			3,014
Prior years	—			—
Paid related to:
Current year	(2,502		)	(2,904		)
Prior years	(152		)	(110		)
Balance at end of period	$	2,975		$	2,975

NOTE 11 DEBT

Debt consists of the following:



(in thousands)	June 30, 2016				December 31, 2015
	Principal		Fair Value		Principal		Fair Value
Subordinated debt	$	90,500	$	36,302	$	90,500	$	39,898

Subordinated debt mentioned above consists of the following trust preferred debt instruments:



Issuer	Principal		Issue date	Interest	Redemption date
Kingsway CT Statutory Trust I	$	15,000	12/4/2002	annual interest rate equal to LIBOR, plus 4.00% payable quarterly	12/4/2032
Kingsway CT Statutory Trust II	$	17,500	5/15/2003	annual interest rate equal to LIBOR, plus 4.10% payable quarterly	5/15/2033
Kingsway CT Statutory Trust III	$	20,000	10/29/2003	annual interest rate equal to LIBOR, plus 3.95% payable quarterly	10/29/2033
Kingsway DE Statutory Trust III	$	15,000	5/22/2003	annual interest rate equal to LIBOR, plus 4.20% payable quarterly	5/22/2033
Kingsway DE Statutory Trust IV	$	10,000	9/30/2003	annual interest rate equal to LIBOR, plus 3.85% payable quarterly	9/30/2033
Kingsway DE Statutory Trust VI	$	13,000	1/8/2004	annual interest rate equal to LIBOR, plus 4.00% payable quarterly	1/8/2034



	19



KINGSWAY FINANCIAL SERVICES INC. Notes to Consolidated Financial Statements (Unaudited) June 30, 2016

NOTE 12 FINANCE LEASE OBLIGATION LIABILITY

On October 2, 2014, the Company completed a sale and leaseback transaction involving building and land located in Miami, Florida, which was previously recorded as asset held for sale. The transaction did not qualify for sales recognition and was accounted for as a financing due to the Company's continuing involvement with the property as a result of nonrecourse financing provided to the buyer in the form of prepaid rent. A finance lease obligation liability equal to the selling price of the property was established at the date of the transaction. During the five-year lease term, the Company will record interest expense on the finance lease obligation at its incremental borrowing rate and will increase the finance lease obligation liability by the same amount. At the end of the lease term, the Company will no longer have continuing involvement with the property and will then recognize the sale of the property as well as the gain that will result from removing the net book value of the land and building and finance lease obligation liability from the consolidated balance sheets. At June 30, 2016 and December 31, 2015 , finance lease obligation liability of $5.0 million and $4.9 million , respectively, is included in accrued expenses and other liabilities in the consolidated balance sheets. At June 30, 2016 and December 31, 2015 , the carrying value of the land and building of $4.8 million and $4.9 million , respectively, is included in property and equipment in the consolidated balance sheets.

NOTE 13 INCOME TAXES

Income tax expense for the three and six months ended June 30, 2016 and June 30, 2015 , respectively, varies from the amount that would result by applying the applicable United States corporate income tax rate of 34% to loss from continuing operations before income tax expense. The following table summarizes the differences:



(in thousands)	Three months ended June 30,						Six months ended June 30,
	2016			2015			2016			2015
Income tax benefit at United States statutory income tax rate	$	(671	)	$	(3,533	)	$	(1,170	)	$	(2,843	)
Non-deductible compensation	381			70			449			138
Valuation allowance	251			1,172			640			533
Foreign operations subject to different tax rates	38			33			74			155
Deconsolidation of subsidiary	—			2,391			—			2,391
Non-taxable dividend income	—			9			—			(415		)
Other	27			(108		)	59			97
Income tax expense	$	26		$	34		$	52		$	56

The Company maintains a valuation allowance for its gross deferred tax assets at June 30, 2016 and December 31, 2015 . The Company's operations have generated substantial operating losses in prior years. These losses can be available to reduce income taxes that might otherwise be incurred on future taxable income; however, it is uncertain whether the Company will generate the taxable income necessary to utilize these losses or other reversing temporary differences. This uncertainty has caused management to place a full valuation allowance on its June 30, 2016 and December 31, 2015 net deferred tax asset. The Company carries a deferred income tax liability of $3.0 million and $2.9 million at June 30, 2016 and December 31, 2015 , respectively, all of which relates to indefinite life intangible assets.

As of June 30, 2016 , the Company had no unrecognized tax benefits. The Company analyzed its tax positions in accordance with the provisions of ASC Topic 740, Income Taxes, and has determined that there are currently no uncertain tax positions.



	20



KINGSWAY FINANCIAL SERVICES INC. Notes to Consolidated Financial Statements (Unaudited) June 30, 2016

NOTE 14 LOSS PER SHARE FROM CONTINUING OPERATIONS

The following table sets forth the reconciliation of numerators and denominators for the basic and diluted loss per share from continuing operations computation for the three and six months ended June 30, 2016 and June 30, 2015 :



(in thousands, except per share data)	Three months ended June 30,						Six months ended June 30,
	2016			2015			2016			2015
Numerator:
Loss from continuing operations	$	(1,999	)	$	(10,426	)	$	(3,494	)	$	(8,418	)
Plus (less): net loss (income) attributable to noncontrolling interests	361			1,064			400			(160		)
Less: dividends on preferred stock	(82		)	(82		)	(164		)	(163		)
Loss from continuing operations attributable to common shareholders	$	(1,720	)	$	(9,444	)	$	(3,258	)	$	(8,741	)
Denominator:
Weighted average basic shares
Weighted average common shares outstanding	19,818			19,710			19,764			19,710
Weighted average diluted shares
Weighted average common shares outstanding	19,818			19,710			19,764			19,710
Effect of potentially dilutive securities	—			—			—			—
Total weighted average diluted shares	19,818			19,710			19,764			19,710
Basic loss per common share from continuing operations	$	(0.09	)	$	(0.48	)	$	(0.16	)	$	(0.44	)
Diluted loss per common share from continuing operations	$	(0.09	)	$	(0.48	)	$	(0.16	)	$	(0.44	)

Loss per share from continuing operations is based on the weighted-average number of shares outstanding. Diluted weighted-average shares is calculated by adjusting basic weighted-average shares outstanding by all potentially dilutive securities. Potentially dilutive securities consist of stock options, unvested restricted stock awards, warrants and convertible preferred stock. Since the Company is reporting a loss from continuing operations for the three and six months ended June 30, 2016 and June 30, 2015 , all potentially dilutive securities outstanding were excluded from the calculation of diluted loss per share from continuing operations since their inclusion would have been anti-dilutive.



	21



KINGSWAY FINANCIAL SERVICES INC. Notes to Consolidated Financial Statements (Unaudited) June 30, 2016

NOTE 15 STOCK-BASED COMPENSATION

(a) Stock Options

The following table summarizes the stock option activity during the six months ended June 30, 2016 :



(in thousands, except for share data)
	Number of Options Outstanding	Weighted-Average Exercise Price		Weighted-Average Remaining Contractual Term (in Years)	Aggregate Intrinsic Value
Outstanding at December 31, 2015	611,875	$	4.50	2.2	$	43
Granted	40,000	4.67
Expired	—	—
Outstanding at June 30, 2016	651,875	$	4.51	1.9	$	560
Exercisable at June 30, 2016	611,875	$	4.51	1.9	$	560

The aggregate intrinsic value of stock options outstanding and exercisable is the difference between the June 30, 2016 market price for the Company's common shares and the exercise price of the options, multiplied by the number of options where the fair value exceeds the exercise price.

The Company uses the Black-Scholes option pricing model to estimate the fair value of each option on the date of grant. The assumptions used in the Black-Scholes pricing model for options granted or exchanged during the six months ended June 30, 2016 were as follows:



	Six months ended June 30, 2016
Risk-free interest rate	1.1	%
Dividend yield	—
Expected volatility	0.5	%
Expected term (in years)	4.0

(b) Restricted Stock Awards

Under the 2013 Equity Incentive Plan, the Company made grants of restricted common stock ("Restricted Stock") to certain officers of the Company. The Restricted Stock vests after a ten-year period and is subject to the officer's continued employment through the vesting date. The Restricted Stock is amortized on a straight-line basis over the ten-year requisite service period. Total unamortized compensation expense related to unvested awards at June 30, 2016 was $6.3 million . The grant-date fair value of the Restricted Stock was determined using the closing price of Kingsway common stock on the date of grant. The following table summarizes the activity related to unvested Restricted Stock for the six months ended June 30, 2016 :



(in thousands, except for share data)
	Restricted Stock Awards	Weighted-Average Grant Date Fair Value (per Share)
Unvested at December 31, 2015	1,952,665	$	4.14
Granted	—	—
Forfeited	—	—
Unvested at June 30, 2016	1,952,665	$	4.14

Total stock-based compensation expense, net of forfeitures, was $0.3 million and $0.2 million for the three months ended June 30, 2016 and June 30, 2015 , respectively ( $0.5 million and $0.4 million for the six months ended June 30, 2016 and June 30, 2015 , respectively).



	22



KINGSWAY FINANCIAL SERVICES INC. Notes to Consolidated Financial Statements (Unaudited) June 30, 2016

NOTE 16 STOCKHOLDER'S EQUITY

In November 2015, the Company's Board of Directors approved a share repurchase program under which the Company is authorized to repurchase up to 5% of its currently issued and outstanding common stock through November 2016. During the three and six months ended June 30, 2016 , the Company repurchased 26,900 shares for an aggregate purchase price of $0.1 million , including fees and commissions, under its share repurchase program. All repurchased common stock was cancelled. The timing and amount of any share repurchases are determined based on market conditions, share price and other factors, and the program may be discontinued or suspended at any time.

On April 21, 2016, the Company issued 160,000 shares of common stock as consideration for the acquisition of Argo. Refer to Note 5 , " Acquisition, Deconsolidation and Discontinued Operations ," for further details regarding the Argo acquisition.

NOTE 17 ACCUMULATED OTHER COMPREHENSIVE INCOME

The table below details the change in the balance of each component of accumulated other comprehensive income, net of tax, for the three and six months ended June 30, 2016 and June 30, 2015 as relates to shareholders' equity attributable to common shareholders on the consolidated balance sheets. On the other hand, the unaudited consolidated statements of comprehensive (loss) income present the components of other comprehensive income, net of tax, only for the three and six months ended June 30, 2016 and June 30, 2015 and inclusive of the components attributable to noncontrolling interests in consolidated subsidiaries.



(in thousands)				Three months ended June 30, 2016
	Unrealized Gains (Losses) on Fixed Maturities and Equity Investments			Foreign Currency Translation Adjustments			Total Accumulated Other Comprehensive Income

Balance at April 1, 2016	$	12,923		$	(3,780	)	$	9,143

Other comprehensive income before reclassifications	430			—			430
Amounts reclassified from accumulated other comprehensive income	(73		)	—			(73		)
Net current-period other comprehensive income	357			—			357

Balance at June 30, 2016	$	13,280		$	(3,780	)	$	9,500



(in thousands)				Three months ended June 30, 2015
	Unrealized Gains (Losses) on Fixed Maturities and Equity Investments			Foreign Currency Translation Adjustments			Total Accumulated Other Comprehensive Income

Balance at April 1, 2015	$	14,527		$	(5,772	)	$	8,755

Other comprehensive (loss) income before reclassifications	(1,068		)	1,114			46
Amounts reclassified from accumulated other comprehensive income	1,227			1,243			2,470
Net current-period other comprehensive income	159			2,357			2,516

Balance at June 30, 2015	$	14,686		$	(3,415	)	$	11,271



	23



KINGSWAY FINANCIAL SERVICES INC. Notes to Consolidated Financial Statements (Unaudited) June 30, 2016



(in thousands)				Six months ended June 30, 2016
	Unrealized Gains (Losses) on Fixed Maturities and Equity Investments			Foreign Currency Translation Adjustments			Total Accumulated Other Comprehensive Income

Balance at January 1, 2016	$	13,080		$	(3,780	)	$	9,300

Other comprehensive income before reclassifications	705			—			705
Amounts reclassified from accumulated other comprehensive income	(505		)	—			(505		)
Net current-period other comprehensive income	200			—			200

Balance at June 30, 2016	$	13,280		$	(3,780	)	$	9,500



(in thousands)				Six months ended June 30, 2015
	Unrealized Gains (Losses) on Fixed Maturities and Equity Investments			Foreign Currency Translation Adjustments			Total Accumulated Other Comprehensive Income

Balance at January 1, 2015	$	14,622		$	(5,952	)	$	8,670

Other comprehensive (loss) income before reclassifications	(1,176		)	1,294			118
Amounts reclassified from accumulated other comprehensive income	1,240			1,243			2,483
Net current-period other comprehensive income	64			2,537			2,601

Balance at June 30, 2015	$	14,686		$	(3,415	)	$	11,271



	24



KINGSWAY FINANCIAL SERVICES INC. Notes to Consolidated Financial Statements (Unaudited) June 30, 2016

Components of accumulated other comprehensive income were reclassified to the following lines of the unaudited consolidated statements of operations for the three and six months ended June 30, 2016 and June 30, 2015 :



	Three months ended June 30,					Six months ended June 30,
	2016		2015			2016		2015
Reclassification of accumulated other comprehensive income from unrealized gains (losses) on fixed maturities and equity investments to:
Net realized gains (losses)	$	73	$	(1,227	)	$	505	$	(1,230	)
Other-than-temporary impairment loss	—		—			—		(10		)
Loss from continuing operations before income tax expense	73		(1,227		)	505		(1,240		)
Income tax expense	—		—			—		—
Net (loss) income	73		(1,227		)	505		(1,240		)

Reclassification of accumulated other comprehensive income from foreign currency translation adjustments to:
Loss on deconsolidation of subsidiary	—		(1,243		)	—		(1,243		)
Loss from continuing operations before income tax expense	—		(1,243		)	—		(1,243		)
Income tax expense	—		—			—		—
Net (loss) income	—		(1,243		)	—		(1,243		)
Total reclassification from accumulated other comprehensive income to net (loss) income	$	73	$	(2,470	)	$	505	$	(2,483	)

NOTE 18 SEGMENTED INFORMATION

The Company operates as a merchant bank primarily engaged, through its subsidiaries, in the property and casualty insurance business. The Company conducts its business through the following two reportable segments: Insurance Underwriting and Insurance Services.

Insurance Underwriting Segment

Insurance Underwriting includes the following subsidiaries of the Company: Mendota Insurance Company, Mendakota Insurance Company, Mendakota Casualty Company ("MCC"), Kingsway Amigo Insurance Company ("Amigo") and Kingsway Reinsurance Corporation (collectively, "Insurance Underwriting"). Insurance Underwriting principally offers personal automobile insurance to drivers who do not meet the criteria for coverage by standard automobile insurers. Insurance Underwriting has policyholders in 12 states; however, new business is accepted in only eight states.

The Company previously placed Amigo and MCC into voluntary run-off in 2012 and 2011, respectively. Each of Amigo and MCC entered into a comprehensive run-off plan which was approved by its respective state of domicile. Kingsway continues to manage Amigo in a manner consistent with its run-off plan. During the first quarter of 2015, MCC sent a letter of intent to the Illinois Department of Insurance to resume writing private passenger automobile policies in the state of Illinois. MCC began writing these policies on April 1, 2015.

Insurance Services Segment

Insurance Services includes the following subsidiaries of the Company: IWS Acquisition Corporation ("IWS") and Trinity Warranty Solutions LLC ("Trinity") (collectively, "Insurance Services").

IWS is a licensed motor vehicle service agreement company and is a provider of after-market vehicle protection services distributed by credit unions in 26 states to their members.



	25



KINGSWAY FINANCIAL SERVICES INC. Notes to Consolidated Financial Statements (Unaudited) June 30, 2016

products through original equipment manufacturers, HVAC distributors and commercial and residential contractors. Trinity distributes its maintenance support directly through corporate owners of retail spaces throughout the United States.

Effective April 1, 2015 , the Company closed on the sale of its wholly owned subsidiary, ARS. As a result, ARS has been classified as discontinued operations and the results of their operations are reported separately for all periods presented. Prior to the transaction, ARS was included in the Insurance Services segment. As a result of classifying ARS as a discontinued operation, all segmented information has been restated to exclude ARS from the Insurance Services segment.

Results for the Company's reportable segments are based on the Company's internal financial reporting systems and are consistent with those followed in the preparation of the unaudited consolidated interim financial statements. The following tables provide financial data used by management. Segment assets are not allocated for management use and, therefore, are not included in the segment disclosures below.

Revenues by reportable segment reconciled to consolidated revenues for the three and six months ended June 30, 2016 and 2015 were:



(in thousands)	Three months ended June 30,				Six months ended June 30,
	2016		2015		2016			2015
Revenues:
Insurance Underwriting:
Net premiums earned	$	31,813	$	30,200	$	61,240		$	59,230
Other income	2,665		2,364		4,938			4,601
Total Insurance Underwriting	34,478		32,564		66,178			63,831
Insurance Services:
Service fee and commission income	5,394		5,848		10,716			11,246
Other income	62		107		116			204
Total Insurance Services	5,456		5,955		10,832			11,450
Total segment revenues	39,934		38,519		77,010			75,281
Net investment income	1,072		528		1,000			1,841
Net realized gains (losses)	67		53		(104		)	53
Other-than-temporary impairment loss	—		—		—			(10		)
Other income not allocated to segments	64		43		111			6,066
Total revenues	$	41,137	$	39,143	$	78,017		$	83,231



	26



KINGSWAY FINANCIAL SERVICES INC. Notes to Consolidated Financial Statements (Unaudited) June 30, 2016

The operating (loss) income of each segment in the following table is before income taxes and includes revenues and direct segment costs.

Segment operating (loss) income reconciled to the consolidated loss from continuing operations for the three and six months ended June 30, 2016 and 2015 were:



(in thousands)	Three months ended June 30,						Six months ended June 30,
	2016			2015			2016			2015
Segment operating (loss) income
Insurance Underwriting	$	181		$	(480	)	$	(58	)	$	(158	)
Insurance Services	(780		)	(102		)	(936		)	(288		)
Total segment operating loss	(599		)	(582		)	(994		)	(446		)
Net investment income	1,072			528			1,000			1,841
Net realized gains (losses)	67			53			(104		)	53
Other-than-temporary impairment loss	—			—			—			(10		)
Other income and expenses not allocated to segments, net	(1,940		)	(2,075		)	(3,841		)	635
Amortization of intangible assets	(307		)	(313		)	(602		)	(630		)
Contingent consideration benefit (expense)	657			(110		)	657			(254		)
Interest expense	(1,108		)	(1,414		)	(2,201		)	(2,805		)
Foreign exchange losses, net	(9		)	(760		)	(10		)	(1,152		)
Gain (loss) on change in fair value of debt	1,068			(1,228		)	3,596			(967		)
Loss on deconsolidation of subsidiary	—			(4,420		)	—			(4,420		)
Equity in net loss of investee	(874		)	(71		)	(943		)	(207		)
Loss from continuing operations before income tax expense	(1,973		)	(10,392		)	(3,442		)	(8,362		)
Income tax expense	26			34			52			56
Loss from continuing operations	$	(1,999	)	$	(10,426	)	$	(3,494	)	$	(8,418	)

Insurance Underwriting net premiums earned by line of business for the three and six months ended June 30, 2016 and 2015 were:



(in thousands)	Three months ended June 30,				Six months ended June 30,
	2016		2015		2016		2015
Insurance Underwriting:
Private passenger auto liability	$	21,656	$	20,292	$	41,731	$	39,631
Auto physical damage	10,157		9,908		19,509		19,599
Total net premiums earned	$	31,813	$	30,200	$	61,240	$	59,230

NOTE 19 RELATED PARTY TRANSACTIONS

Related party transactions, including services provided to or received by the Company's subsidiaries, are carried out in the normal course of operations and are measured in part by the amount of consideration paid or received as established and agreed by the parties. Management believes that consideration paid for such services in each case approximates fair value. Except where disclosed elsewhere in these unaudited consolidated interim financial statements, the following is a summary of related party transactions.

On February 11, 2014, the Company's subsidiary, 1347 Advisors LLC ("1347 Advisors") entered into a Management Services Agreement ("MSA") with 1347 Property Insurance Holdings, Inc. ("PIH") which provides for certain services, including forecasting, analysis of capital structure and reinsurance programs, consultation in future restructuring or capital raising transactions, and consultation in corporate development initiatives, that 1347 Advisors will provide to PIH unless and until 1347 Advisors and PIH agree to terminate the services. On February 24, 2015, the Company announced that it had entered into a definitive agreement with PIH to terminate the MSA. Pursuant to the transaction, 1347 Advisors received the following consideration: $2.0 million in cash; $3.0 million of 8% preferred stock of PIH, redeemable on February 24, 2020; a Performance Shares Grant Agreement with PIH, whereby 1347 Advisors will be entitled to receive 100,000 shares of PIH common stock if at any time the last sales price of



	27



KINGSWAY FINANCIAL SERVICES INC. Notes to Consolidated Financial Statements (Unaudited) June 30, 2016

PIH's common stock equals or exceeds $10.00 per share for any 20 trading days within any 30-trading day period; and warrants to purchase 1,500,000 shares of common stock of PIH with a strike price of $15.00 , expiring on February 24, 2022. The Company recorded a gain of $6.0 million during the first quarter of 2015 related to the termination of the MSA, which is included in other income in the unaudited consolidated statements of operations. To the extent shares of PIH common stock are granted to the Company under the Performance Shares Grant Agreement, they will be recorded at the time the shares are granted and will have a valuation equal to the last sales price of PIH common stock on the day prior to such grant. No shares were received by the Company under the Performance Shares Grant Agreement as of June 30, 2016 . Refer to Note 20 , " Fair Value of Financial Instruments ," for further details regarding the performance shares.

On March 26, 2014, the Company entered into a Performance Share Grant Agreement with PIH, whereby the Company will be entitled to receive up to an aggregate of 375,000 shares of PIH common stock upon achievement of certain milestones for PIH’s stock price. Pursuant to the terms of the Performance Share Grant Agreement, if at any time the last sales price of PIH’s common stock equals or exceeds: (i) $12.00 per share (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like) for any 20 trading days within any 30-trading day period, the Company will receive 125,000 shares of PIH common stock; (ii) $15.00 per share (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like) for any 20 trading days within any 30-trading day period, the Company will receive 125,000 shares of PIH common stock (in addition to the 125,000 shares of common stock earned pursuant to clause (i) herein); and (iii) $18.00 per share (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like) for any 20 trading days within any 30-trading day period, the Company will receive 125,000 shares of PIH common stock (in addition to the 250,000 shares of common stock earned pursuant to clauses (i) and (ii) herein). To the extent shares of PIH common stock are granted to the Company under the Performance Share Grant Agreement, they will be recorded at the time the shares are granted and will have a valuation equal to the last sales price of PIH common stock on the day prior to such grant. No shares were received by the Company under the Performance Share Grant Agreement as of June 30, 2016 . Refer to Note 20 , " Fair Value of Financial Instruments ," for further details regarding the performance shares.

During the second quarter of 2014, the Company made an investment in Itasca Golf Investors, LLC ("Itasca Golf") which is included in limited liability investments on the consolidated balance sheets. On August 28, 2014, the Company entered into a $0.5 million line of credit with Itasca Golf. On August 29, 2014, the Company advanced $0.5 million to Itasca Golf under the line of credit which is included in other receivables on the consolidated balance sheets. On June 11, 2015, the line of credit was increased by $0.2 million . On June 11, 2015, the Company advanced $0.2 million to Itasca Golf under the line of credit which is included in other receivables on the consolidated balance sheets. The line of credit bears interest at 3% and matures on August 28, 2016.

On April 20, 2016, John T. Fitzgerald, the Managing Member of Argo, joined the Company as an Executive Vice President. As part of the agreement to purchase Argo, Mr. Fitzgerald received 160,000 common shares of the Company. On April 21, 2016, the Board of Directors appointed Mr. Fitzgerald as a new director. Mr. Fitzgerald is an investor in 1347 Investors LLC ("1347 Investors"), a 61.0% majority-owned subsidiary of the Company.

Effective June 10, 2016, the Company entered into a management services agreement with ICL, formerly Kobex Capital Corp. At June 30, 2016 , the Company owns 31.2% of ICL, as further discussed in Note 7 , " Investments in Investees ." The management services agreement provides that the Company shall provide management and administrative services to ICL, as well as the non-exclusive use and services of appropriately qualified individuals to serve as the Chief Executive Officer, Chief Financial Officer and Corporate Secretary of ICL. Pursuant to the management services agreement, Larry G. Swets, Jr. was appointed Chief Executive Officer of ICL and Hassan Baqar was appointed Chief Financial Officer and Corporate Secretary of ICL. Mr. Swets is the Chief Executive Officer and a director of the Company. Mr. Baqar is a Vice President of the Company.

NOTE 20 FAIR VALUE OF FINANCIAL INSTRUMENTS

Fair value amounts represent estimates of the consideration that would currently be agreed upon between knowledgeable, willing parties who are under no compulsion to act. Fair value is best evidenced by quoted bid or ask price, as appropriate, in an active market. Where bid or ask prices are not available, such as in an illiquid or inactive market, the closing price of the most recent transaction of that instrument subject to appropriate adjustments as required is used. Where quoted market prices are not available, the quoted prices of similar financial instruments or valuation models with observable market-based inputs are used to estimate the fair value. These valuation models may use multiple observable market inputs, including observable interest rates, foreign exchange rates, index levels, credit spreads, equity prices, counterparty credit quality, corresponding market volatility levels and option volatilities. Minimal management judgment is required for fair values calculated using quoted market prices or observable market inputs for models. Greater subjectivity is required when making valuation adjustments for financial instruments in inactive markets or when using models where observable parameters do not exist. Also, the calculation of estimated fair value is based on market conditions at a specific point in time and may not be reflective of future fair values. For the Company's financial instruments carried at cost or amortized cost, the book value is not adjusted to reflect increases or decreases in fair value due to



	28



KINGSWAY FINANCIAL SERVICES INC. Notes to Consolidated Financial Statements (Unaudited) June 30, 2016

market fluctuations, including those due to interest rate changes, as it is the Company's intention to hold them until there is a recovery of fair value, which may be to maturity.

The Company classifies its investments in fixed maturities and equity investments as available-for-sale and reports these investments at fair value. The Company's performance shares, subordinated debt and contingent consideration liabilities are measured and reported at fair value.

Fixed maturities and equity investments - Fair values of fixed maturities for which no active market exists are derived from quoted market prices of similar instruments or other third-party evidence. Fair values of equity investments, including warrants, reflect quoted market values based on latest bid prices, where active markets exist, or models based on significant market observable inputs, where no active markets exist.

Performance shares - The performance shares, for which no active market exists, are required to be valued at fair value as determined in good faith by the Company. Such determination of fair value would require the Company to develop a model based upon relevant observable market inputs as well as significant unobservable inputs, including developing a sufficiently reliable estimate for an appropriate discount to reflect the illiquidity and unique structure of the security. The Company determined that its model for the performance shares was not sufficiently reliable. As a result, the Company has assigned a fair value of zero to the performance shares. Refer to Note 19 , " Related Party Transactions ," for further details regarding the performance shares.

Debt - The fair value of the subordinated debt is calculated using a model based on significant market observable inputs and inputs developed by a third-party. These inputs include credit spread assumptions developed by a third-party and market observable swap rates.

Contingent consideration - The consideration for certain of the Company's acquisitions includes future payments to the former owners that are contingent upon the achievement of certain targets over future reporting periods. Liabilities for contingent consideration are measured and reported at fair value and are included in accrued expenses and other liabilities in the consolidated balance sheets. The fair value of contingent consideration liabilities is estimated using internal models without relevant observable market inputs. Estimated payments are discounted using present value techniques to arrive at estimated fair value. Contingent consideration liabilities are revalued each reporting period. Changes in the fair value of contingent consideration liabilities can result from changes to one or multiple inputs, including adjustments to the discount rates or changes in the assumed achievement or timing of any targets. Changes in fair value are reported in the unaudited consolidated statements of operations as contingent consideration (benefit) expense. The maximum the Company can pay in future contingent payments is $2.4 million , on an undiscounted basis.

The Company employs a fair value hierarchy to categorize the inputs it uses in valuation techniques to measure the fair value. The extent of use of quoted market prices (Level 1), valuation models using observable market information (Level 2) and internal models without observable market information (Level 3) in the valuation of the Company's financial assets and liabilities measured at fair value on a recurring basis as of June 30, 2016 and December 31, 2015 was as follows:



	29



KINGSWAY FINANCIAL SERVICES INC. Notes to Consolidated Financial Statements (Unaudited) June 30, 2016



(in thousands)					June 30, 2016
			Fair Value Measurements at the End of the Reporting Period Using

	Total		Quoted Prices in Active Markets for Identical Assets(Level 1)		Significant Other Observable Inputs (Level 2)		Significant Unobservable Inputs (Level 3)
Recurring fair value measurements

Assets:
Fixed maturities:
U.S. government, government agencies and authorities	$	27,716	$	—	$	27,716	$	—
States, municipalities and political subdivisions	3,915		—		3,915		—
Mortgage-backed	7,350		—		7,350		—
Asset-backed securities and collateralized mortgage obligations	4,616		—		4,616		—
Corporate	19,406		—		19,406		—
Total fixed maturities	63,003		—		63,003		—
Equity investments:
Common stock	20,813		20,813		—		—
Warrants	695		197		498		—
Total equity investments	21,508		21,010		498		—
Other investments	5,435		—		5,435		—
Short-term investments	670		—		670		—
Total assets	$	90,616	$	21,010	$	69,606	$	—

Liabilities:
Subordinated debt	$	36,302	$	—	$	36,302	$	—
Contingent consideration	325		—		—		325
Total liabilities	$	36,627	$	—	$	36,302	$	325



	30



KINGSWAY FINANCIAL SERVICES INC. Notes to Consolidated Financial Statements (Unaudited) June 30, 2016



(in thousands)					December 31, 2015
			Fair Value Measurements at the End of the Reporting Period Using

	Total		Quoted Prices in Active Markets for Identical Assets (Level 1)		Significant Other Observable Inputs (Level 2)		Significant Unobservable Inputs (Level 3)
Recurring fair value measurements

Assets:
Fixed maturities:
U.S. government, government agencies and authorities	$	20,453	$	—	$	20,453	$	—
States municipalities and political subdivisions	2,256		—		2,256		—
Mortgage-backed	7,963		—		7,963		—
Asset-backed securities and collateralized mortgage obligations	6,023		—		6,023		—
Corporate	18,864		—		18,864		—
Total fixed maturities	55,559		—		55,559		—
Equity investments:
Common stock	26,586		26,586		—		—
Warrants	973		229		744		—
Total equity investments	27,559		26,815		744		—
Other investments	4,077		—		4,077		—
Short-term investments	400		—		400		—
Total assets	$	87,595	$	26,815	$	60,780	$	—

Liabilities:
Subordinated debt	$	39,898	$	—	$	39,898	$	—
Contingent consideration	1,982		—		—		1,982
Total liabilities	$	41,880	$	—	$	39,898	$	1,982

The following table provides a reconciliation of the fair value of recurring Level 3 fair value measurements for the three and six months ended June 30, 2016 and June 30, 2015 :



(in thousands)	Three months ended June 30,					Six months ended June 30,
	2016			2015		2016			2015
Contingent consideration:
Beginning balance	$	1,982		$	3,265	$	1,982		$	3,121
Settlement of contingent consideration liabilities	(1,000		)	—		(1,000		)	—
Change in fair value of contingent consideration included in net (loss) income	(657		)	110		(657		)	254
Ending balance	$	325		$	3,375	$	325		$	3,375



	31



KINGSWAY FINANCIAL SERVICES INC. Notes to Consolidated Financial Statements (Unaudited) June 30, 2016

NOTE 21 COMMITMENTS AND CONTINGENCIES

(a) Legal proceedings:

In connection with its operations in the ordinary course of business, the Company and its subsidiaries are named as defendants in various actions for damages and costs allegedly sustained by the plaintiffs. While it is not possible to estimate the loss, or range of loss, if any, that may be incurred in connection with any of the various proceedings at this time, it is possible that an individual action may result in a loss having a material adverse effect on the Company's financial condition or results of operations.

(b) Guarantee:

The Company provided an indemnity and hold harmless agreement to a third-party for customs bonds reinsured by Lincoln General Insurance Company ("Lincoln General") during the time Lincoln General was a subsidiary of the Company. This agreement may require the Company to compensate the third-party if Lincoln General is unable to fulfill its obligations relating to the customs bonds. The Company's potential exposure under this agreement is not determinable, and no liability has been recorded in the unaudited consolidated interim financial statements at June 30, 2016 .

The Company has entered into subscription agreements to commit up to $2.5 million of capital to allow for participation in limited liability investments. At June 30, 2016 , the unfunded commitment was $1.8 million .

NOTE 22 SUBSEQUENT EVENTS

(a) Acquisition of CMC Industries, Inc.

On July 14, 2016, the Company acquired 81.0% of the issued and outstanding capital stock of CMC Industries, Inc., a Texas corporation ("CMC") for a purchase price of $1.5 million in cash. CMC owns, through an indirect wholly owned subsidiary (the "Property Owner"), a parcel of real property consisting of approximately 192 acres located in the State of Texas (the "Real Property"). The Real Property is leased to a third party pursuant to a long-term triple net lease. The Real Property is also subject to a mortgage in the principal amount of approximately $180 million (the "Mortgage"). The Mortgage is non-recourse indebtedness with respect to CMC and its subsidiaries (including the Property Owner), and the Mortgage is not, nor will it be, guaranteed by the Company or its affiliates. All lease income generated by the Real Property is applied to make principal and interest payments on the Mortgage. As a result, the Company does not expect any positive cash flow to be available from CMC to help the Company meet its holding company obligations until the occurrence of one of the three events described in the next paragraph that would trigger payment of service fees. See "Liquidity and Capital Resources" in Management's Discussion and Analysis for a description of holding company liquidity.

Pursuant to the terms of the Management Services Agreement entered into at closing, an affiliate of the seller (the "Service Provider") will provide certain services to CMC and its subsidiaries in exchange for service fees. Such services (collectively, the "Services") will include (i) causing an affiliate of the Service Provider to guaranty certain obligations of the Property Owner (pursuant to an Indemnity and Guaranty Agreement between such affiliate and the holder of the Mortgage (the "Mortgagor")), (ii) providing certain individuals to serve as members of the board of directors and/or certain executive officers of CMC and/or its subsidiaries and (iii) providing asset management services with respect to the Real Property. In exchange for the Services, the Property Owner will pay certain fees to the Service Provider. The payment of such service fees will be triggered by (i) a sale of the Real Property, (ii) a restructuring of the lease to which the Real Property is subject or (iii) a refinancing or restructuring of the Mortgage. The amount of the service fees will range from 40% - 80% of the net proceeds generated by the event triggering the payment of the service fees (depending on the nature and timing of the triggering event).

CMC's balance sheet and results of operations will be included in the unaudited consolidated interim financial statements of the Company, beginning with the third quarter of 2016. During the third quarter of 2016, the Company will begin its fair value analysis on the assets acquired and liabilities assumed and will include an estimate of these assets and liabilities in the consolidated balance sheet at September 30, 2016, along with any additional disclosure deemed necessary. The Company intends to finalize by December 31, 2016 its fair value analysis of the assets acquired and liabilities assumed.

(b) Investment in 1347 Investors

At June 30, 2016 , the Company owns 61.0% of the outstanding units of 1347 Investors. Because the Company owns more than 50% of the outstanding units, 1347 Investors is included in the unaudited consolidated interim financial statements of the Company.



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KINGSWAY FINANCIAL SERVICES INC. Notes to Consolidated Financial Statements (Unaudited) June 30, 2016

1347 Investors has an investment in the common stock and private units of 1347 Capital Corp. which is reflected in investments in investees in the consolidated balance sheets. 1347 Capital Corp. was formed for the purpose of entering into a merger, share exchange, asset acquisition or other similar business combination with one or more businesses or entities.

On July 21, 2014, 1347 Capital Corp. completed an initial public offering. 1347 Capital Corp. had 24 months from the date of the initial public offering to complete a successful business combination. On March 23, 2016, 1347 Capital Corp. announced the signing of a definitive agreement with Limbach Holdings LLC ("Limbach"), in which 1347 Capital Corp. would merge with Limbach. On July 21, 2016, Limbach announced the closing of the previously announced merger and 1347 Capital Corp. was renamed Limbach Holdings, Inc. As a result of this transaction, the Company's ownership percentage in 1347 Investors was reduced to approximately 27% at the transaction date. As a result of this change in ownership, the Company expects that it will no longer consolidate 1347 Investors and will instead account for its investment in 1347 Investors under the equity method of accounting, beginning with the third quarter of 2016.



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KINGSWAY FINANCIAL SERVICES INC.

Item 2. Management's Discussion and Analysis of Financial Condition and Results of Operations

FORWARD LOOKING STATEMENTS

Management's Discussion and Analysis includes “forward looking statements” within the meaning of Section 27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934 that are not historical facts, and involve risks and uncertainties that could cause actual results to differ materially from those expected and projected. Words such as “expects,” “believes,” “anticipates,” “intends,” “estimates,” “seeks” and variations and similar words and expressions are intended to identify such forward looking statements. Such forward looking statements relate to future events or future performance, but reflect Kingsway management’s current beliefs, based on information currently available. A number of factors could cause actual events, performance or results to differ materially from the events, performance and results discussed in the forward looking statements. For information identifying important factors that could cause actual results to differ materially from those anticipated in the forward looking statements, see Kingsway’s securities filings, including its Annual Report on Form 10-K for the year ended December 31, 2015 ("2015 Annual Report"). The Company's securities filings can be accessed on the Canadian Securities Administrators’ website at www.sedar.com , and on the EDGAR section of the U.S. Securities and Exchange Commission’s website at www.sec.gov or through the Company’s website at www.kingsway-financial.com . Except as expressly required by applicable securities law, the Company disclaims any intention or obligation to update or revise any forward looking statements whether as a result of new information, future events or otherwise.

OVERVIEW

Kingsway is a Canadian holding company with operating subsidiaries located in the United States. The Company operates as a merchant bank primarily engaged, through its subsidiaries, in the property and casualty insurance business. Kingsway conducts its business through the following two reportable segments: Insurance Underwriting and Insurance Services.

Insurance Underwriting includes the following subsidiaries of the Company: Mendota Insurance Company ("Mendota"), Mendakota Insurance Company, Mendakota Casualty Company ("MCC"), Kingsway Amigo Insurance Company ("Amigo") and Kingsway Reinsurance Corporation. Throughout Management's Discussion and Analysis, the term "Insurance Underwriting" is used to refer to this segment.

Insurance Underwriting provides non-standard automobile insurance to individuals who do not meet the criteria for coverage by standard automobile insurers. Insurance Underwriting has policyholders in 12 states; however, new business is accepted in only eight states. For the three months ended June 30, 2016 , production in the following states represented 89.9% of the Company's gross premiums written: Florida ( 27.0% ), Texas ( 17.7% ), Illinois ( 15.2% ), Nevada ( 10.9% ), California ( 10.8% ) and Colorado ( 8.3% ). For the six months ended June 30, 2016 , production in the following states represented 88.1% of the Company's gross premiums written: Florida ( 27.0% ), Texas ( 18.5% ), Illinois ( 13.8% ), Nevada ( 10.6% ), California ( 10.1% ) and Colorado ( 8.1% ). For the three and six months ended June 30, 2016 , non-standard automobile insurance accounted for 100.0% of the Company's gross premiums written.

Insurance Services includes the following subsidiaries of the Company: IWS Acquisition Corporation ("IWS") and Trinity Warranty Solutions LLC ("Trinity"). Throughout Management's Discussion and Analysis, the term "Insurance Services" is used to refer to this segment.

IWS is a licensed motor vehicle service agreement company and is a provider of after-market vehicle protection services distributed by credit unions in 26 states to their members.

Trinity is a provider of warranty products and maintenance support to consumers and businesses in the heating, ventilation, air conditioning ("HVAC"), standby generator, commercial LED lighting and refrigeration industries. Trinity distributes its warranty products through original equipment manufacturers, HVAC distributors and commercial and residential contractors. Trinity distributes its maintenance support directly through corporate owners of retail spaces throughout the United States.

Effective April 1, 2015 , the Company closed on the sale of its wholly owned subsidiary, Assigned Risk Solutions Ltd. ("ARS"). As a result, ARS has been classified as discontinued operations, and the results of their operations are reported separately for all periods presented. Prior to the transaction, ARS was included in the Insurance Services segment. As a result of classifying ARS as a discontinued operation, all segmented information has been restated to exclude ARS from the Insurance Services segment.



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KINGSWAY FINANCIAL SERVICES INC.

NON-U.S. GAAP FINANCIAL MEASURES

Throughout this quarterly report, we present our operations in the way we believe will be most meaningful, useful and transparent to anyone using this financial information to evaluate our performance. In addition to the U.S. GAAP presentation of net (loss) income, we show certain statutory reporting information and other non-U.S. GAAP financial measures which we believe are valuable in managing our business and drawing comparisons to our peers. These measures are segment operating (loss) income, gross premiums written, net premiums written and underwriting ratios.

Following is a list of non-U.S. GAAP measures found throughout this report with their definitions, relationships to U.S. GAAP measures and explanations of their importance to our operations.

Segment Operating (Loss) Income

Segment operating (loss) income represents one measure of the pretax profitability of our segments and is derived by subtracting direct segment expenses from direct segment revenues. Revenues and expenses are presented in the unaudited consolidated statements of operations, but are not subtotaled by segment; however, this information is available in total and by segment in Note 18 , " Segmented Information ," to the unaudited consolidated interim financial statements, regarding reportable segment information. The nearest comparable U.S. GAAP measure is loss from continuing operations before income tax expense which, in addition to segment operating (loss) income, includes net investment income, net realized gains (losses), other-than-temporary impairment loss, other income not allocated to segments, general and administrative expenses, amortization of intangible assets, contingent consideration benefit (expense), interest expense, foreign exchange losses, net, gain (loss) on change in fair value of debt, loss on deconsolidation of subsidiary and equity in net loss of investee. A reconciliation of segment operating (loss) income to loss from continuing operations before income tax expense for the three and six months ended June 30, 2016 and 2015 is presented in Table 1 of the "Results of Continuing Operations" section of Management's Discussion and Analysis.

Gross Premiums Written

While net premiums earned is the related U.S. GAAP measure used in the unaudited consolidated statements of operations, gross premiums written is the component of net premiums earned that measures insurance business produced before the impact of ceding reinsurance premiums, but without respect to when those premiums will be recognized as actual revenue. We use this measure as an overall gauge of gross business volume in Insurance Underwriting.

Net Premiums Written

While net premiums earned is the related U.S. GAAP measure used in the unaudited consolidated statements of operations, net premiums written is the component of net premiums earned that measures the difference between gross premiums written and the impact of ceding reinsurance premiums, but without respect to when those premiums will be recognized as actual revenue. We use this measure as an indication of retained or net business volume in Insurance Underwriting.

Underwriting Ratios

Kingsway, like many insurance companies, analyzes performance based on underwriting ratios such as loss and loss adjustment expense ratio, expense ratio and combined ratio. The loss and loss adjustment expense ratio is derived by dividing the amount of net loss and loss adjustment expenses incurred by net premiums earned. The expense ratio is derived by dividing the sum of commissions and premium taxes, general and administrative expenses and policy fee income by net premiums earned. The combined ratio is the sum of the loss and loss adjustment expense ratio and the expense ratio. A combined ratio below 100% demonstrates underwriting profit whereas a combined ratio over 100% demonstrates underwriting loss.

CRITICAL ACCOUNTING ESTIMATES AND ASSUMPTIONS

The preparation of unaudited consolidated interim financial statements in conformity with U.S. GAAP requires management to make estimates and assumptions that affect application of policies and the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the consolidated financial statements and the reported amounts of revenues and expenses for the reporting period. Actual results could differ from these estimates. Estimates and their underlying assumptions are reviewed on an ongoing basis. Changes in estimates are recorded in the accounting period in which they are determined. The critical accounting estimates and assumptions in the accompanying unaudited consolidated interim financial statements include the provision for unpaid loss and loss adjustment expenses; valuation of fixed maturities and equity investments; valuation of deferred income taxes; valuation and impairment assessment of intangible assets; goodwill recoverability; deferred acquisition costs; fair value assumptions for performance shares; fair value assumptions for debt obligations; and contingent consideration.



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KINGSWAY FINANCIAL SERVICES INC.

The Company’s critical accounting estimates and assumptions are described in Management's Discussion and Analysis of Financial Condition and Results of Operations included in the 2015 Annual Report. There has been no material change subsequent to December 31, 2015 to the information previously disclosed in the 2015 Annual Report with respect to these critical accounting estimates and assumptions.

RESULTS OF CONTINUING OPERATIONS

A reconciliation of total segment operating loss to net (loss) income for the three and six months ended June 30, 2016 and 2015 is presented in Table 1 below:

Table 1 Segment Operating (Loss) Income

For the three and six months ended June 30 (in thousands of dollars)



	For the three months ended June 30,						For the six months ended June 30,
	2016		2015		Change		2016		2015		Change
Segment operating (loss) income
Insurance Underwriting	181		(480	)	661		(58	)	(158	)	100
Insurance Services	(780	)	(102	)	(678	)	(936	)	(288	)	(648	)
Total segment operating loss	(599	)	(582	)	(17	)	(994	)	(446	)	(548	)
Net investment income	1,072		528		544		1,000		1,841		(841	)
Net realized gains (losses)	67		53		14		(104	)	53		(157	)
Other-than-temporary impairment loss	—		—		—		—		(10	)	10
Other income and expenses not allocated to segments, net	(1,940	)	(2,075	)	135		(3,841	)	635		(4,476	)
Amortization of intangible assets	(307	)	(313	)	6		(602	)	(630	)	28
Contingent consideration benefit (expense)	657		(110	)	767		657		(254	)	911
Interest expense	(1,108	)	(1,414	)	306		(2,201	)	(2,805	)	604
Foreign exchange losses, net	(9	)	(760	)	751		(10	)	(1,152	)	1,142
Gain (loss) on change in fair value of debt	1,068		(1,228	)	2,296		3,596		(967	)	4,563
Loss on deconsolidation of subsidiary	—		(4,420	)	4,420		—		(4,420	)	4,420
Equity in net loss of investee	(874	)	(71	)	(803	)	(943	)	(207	)	(736	)
Loss from continuing operations before income tax expense	(1,973	)	(10,392	)	8,419		(3,442	)	(8,362	)	4,920
Income tax expense	26		34		(8	)	52		56		(4	)
Loss from continuing operations	(1,999	)	(10,426	)	8,427		(3,494	)	(8,418	)	4,924
Income from discontinued operations, net of taxes	—		—		—		—		1,426		(1,426	)
Gain on disposal of discontinued operations, net of taxes	1,124		11,259		(10,135	)	1,124		11,259		(10,135	)
Net (loss) income	(875	)	833		(1,708	)	(2,370	)	4,267		(6,637	)

Loss from Continuing Operations and Net (Loss) Income

In the second quarter of 2016 , we reported loss from continuing operations of $2.0 million compared to $10.4 million in the second quarter of 2015 . For the six months ended June 30, 2016 , we reported loss from continuing operations of $3.5 million compared to $8.4 million for the six months ended June 30, 2015 . The loss from continuing operations for the three and six months ended June 30, 2016 is primarily attributable to operating loss in Insurance Services, other income and expenses not allocated to segments and interest expense, partially offset by net investment income and gain on change in fair value of debt. The loss from continuing operations for the three months ended June 30, 2015 is primarily attributable to other income and expenses not allocated to segments, interest expense, loss on change in fair value of debt and loss on deconsolidation of subsidiary. The loss from continuing operations for the six months ended June 30, 2015 is primarily attributable to interest expense, foreign exchange losses, net, loss on change in fair value of debt and loss on deconsolidation of subsidiary, partially offset by net investment income.



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KINGSWAY FINANCIAL SERVICES INC.

For the three months ended June 30, 2016 , we reported net loss of $0.9 million compare to net income of $0.8 million for the three months ended June 30, 2015 . For the six months ended June 30, 2016 , we reported net loss of $2.4 million compared to net income of $4.3 million for the six months ended June 30, 2015 .

Insurance Underwriting

In the second quarter of 2016 , Insurance Underwriting gross premiums written were $31.4 million compared to $25.5 million in the second quarter of 2015 , representing a 23.1% increase ( $67.2 million year to date compared to $60.7 million prior year to date, representing a 10.7% increase ). Net premiums written increase d 23.1% to $31.4 million in the second quarter of 2016 compared with $25.5 million in the second quarter of 2015 ( $67.0 million year to date compared to $60.6 million prior year to date, representing a 10.6% increase ). Net premiums earned increase d 5.3% to $31.8 million in the second quarter of 2016 compared with $30.2 million in the second quarter of 2015 ( $61.2 million year to date compared to $59.2 million prior year to date, representing a 3.4% increase ). The increases in gross premiums written, net premiums written and net premiums earned for the three and six months ended June 30, 2016 , compared to the same periods in 2015 , reflect a change in the mix of business by state resulting from Insurance Underwriting’s strategic shift to emphasize certain states and de-emphasize others while also reflecting the competitive market dynamics of each state. Of particular note, the Company has recorded increased premiums written in Florida, Texas and Nevada while reducing premiums written in Virginia, a state in which Insurance Underwriting ceased writing new business beginning in the third quarter of 2015, and Mississippi.

The Insurance Underwriting operating income was $0.2 million for the three months ended June 30, 2016 (operating loss of $0.1 million year to date) compared to operating loss of $0.5 million for the three months ended June 30, 2015 (operating loss of $0.2 million prior year to date). The increase in operating income for the three months ended June 30, 2016 and the decrease in operating loss for the six months ended June 30, 2016 are primarily attributable to the increase in net premiums earned and an increase in policy fee income, which more than offset a related increase in loss and loss adjustment expenses and other variable expenses tied to the increase in net premiums earned.

The Insurance Underwriting loss and loss adjustment expense ratio for the second quarter of 2016 was 74.0% compared to 75.3% for the second quarter of 2015 ( 74.6% for the six months ended June 30, 2016 compared with 72.8% for the same period in 2015 ). The decrease in the loss and loss adjustment expense ratio for the three months ended June 30, 2016 is primarily attributable to the increase in net premiums earned in the second quarter of 2016 compared to the same period in 2015 . The increase in the loss and loss adjustment expense ratio for the six months ended June 30, 2016 is attributable to decreased loss and loss adjustment expenses at Amigo during the six months ended June 30, 2015 , which was reflective of continued favorable development on unpaid loss and loss adjustment expenses as part of Amigo's voluntary run-off.

The Insurance Underwriting expense ratio was 25.8% for the second quarter of 2016 compared to 27.0% for the second quarter of 2015 ( 25.9% for the six months ended June 30, 2016 compared with 28.1% for the same period in 2015 ). The decrease in the expense ratio is primarily due to the increase in net premiums earned and policy fee income for the three and six months ended June 30, 2016 , compared to the same periods in 2015 . The Insurance Underwriting expense ratio includes policy fee income of $2.5 million and $2.1 million for the three months ended June 30, 2016 and 2015 , respectively ( $4.7 million and $4.2 million , respectively, year to date and prior year to date).

The Insurance Underwriting combined ratio was 99.8% in the second quarter of 2016 compared with 102.3% in the second quarter of 2015 ( 100.5% for the six months ended June 30, 2016 compared with 100.9% for the same period in 2015 ), reflecting the dynamics which affected the loss and loss adjustment expense ratio and expense ratio.

Insurance Services

The Insurance Services service fee and commission income decreased 6.9% to $5.4 million for the three months ended June 30, 2016 compared with $5.8 million for the three months ended June 30, 2015 ( $10.7 million year to date compared to $11.2 million prior year to date, representing a 4.5% decrease ). The decrease for the three and six months ended June 30, 2016 is due to decreased service fee and commission income at IWS and Trinity. The Insurance Services operating loss was $0.8 million for the three months ended June 30, 2016 compared with $0.1 million for the three months ended June 30, 2015 ( $0.9 million year to date compared with $0.3 million prior year to date). The increase in operating loss for the three and six months ended June 30, 2016 is primarily due to severance expenses recorded at IWS as well as additional IWS expenses related to an agreement executed with the former owners of IWS. These additional IWS operating expenses were largely offset by the $0.7 million contingent consideration benefit recorded by IWS also related to the agreement executed with the former owners of IWS. See Contingent Consideration Benefit (Expense) section below for further information.



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KINGSWAY FINANCIAL SERVICES INC.

Net Investment Income

Net investment income was $1.1 million in the second quarter of 2016 compared to $0.5 million in the second quarter of 2015 ( $1.0 million year to date compared to $1.8 million prior year to date). The increase for the three months ended June 30, 2016 is primarily due to an increase in income from limited liability investments. The decrease for the six months ended June 30, 2016 is primarily due a decrease in income from limited liability investments, as well as a decrease in fair value of derivative instrument warrants. Income from limited liability investments is recognized based on the Company's share of the earnings of the limited liability entities.

Net Realized Gains (Losses)

Net realized gains were $0.1 million in the second quarter of 2016 compared to $0.1 million in the second quarter of 2015 (net realized losses of $0.1 million year to date compared to net realized gains of $0.1 million prior year to date).

Other Income and Expenses not Allocated to Segments, Net

Other income and expenses not allocated to segments was a net expense of $1.9 million in the second quarter of 2016 compared to $2.1 million in the second quarter of 2015 ( $3.8 million year to date compared to a net income of $0.6 million prior year to date). The decrease in net expense for the three months ended June 30, 2016 is primarily due to a decrease in corporate general expenses during the second quarter of 2016 compared to the second quarter of 2015 . The increase in net expense for the six months ended June 30, 2016 is primarily the result of a $6.0 million gain recorded during the first quarter of 2015 related to the termination of the Company's Management Services Agreement with 1347 Property Insurance Holdings, Inc., as further discussed in Note 19 , " Related Party Transactions ," to the unaudited consolidated interim financial statements, partially offset by less general expense for salaries and employee benefits during the six months ended June 30, 2016 compared to the same period in 2015 .

Amortization of Intangible Assets

The Company's intangible assets with definite useful lives are amortized over their estimated useful lives. Amortization of intangible assets was $0.3 million for the second quarter of 2016 compared to $0.3 million in the second quarter of 2015 ( $0.6 million year to date compared to $0.6 million prior year to date).

Contingent Consideration Benefit (Expense)

Contingent consideration benefit was $0.7 million for the second quarter of 2016 compared to expense of $0.1 million in the second quarter of 2015 (benefit of $0.7 million year to date compared to expense of $0.3 million prior year to date). The benefit recorded for the three and six months ended June 30, 2016 is attributable to the Company having executed an agreement with the former owners of IWS. The asset purchase agreement executed by the Company in 2012 related to the acquisition of IWS provided that additional payments were due to the former owners of IWS contingent upon the achievement of certain targets over future reporting periods. Refer to Note 20 , " Fair Value of Financial Instruments ," to the unaudited consolidated interim financial statements, for further information. The parties to the agreement agreed to a fixed payment and other consideration in exchange for extinguishing the rights to future contingent payments.

Interest Expense

Interest expense for the second quarter of 2016 was $1.1 million compared to $1.4 million in the second quarter of 2015 ( $2.2 million year to date compared to $2.8 million prior year to date). The decrease for the three and six months ended June 30, 2016 is primarily attributable to the repayment during June 2015 of the outstanding principal balance on the Company's LROC preferred units due June 30, 2015.

Foreign Exchange Losses, Net

During the second quarter of 2016 , the Company incurred foreign exchange losses, net of $0.0 million compared to $0.8 million in the second quarter of 2015 ( $0.0 million year to date compared to $1.2 million prior year to date). Foreign exchange losses, net for the three and six months ended June 30, 2015 were incurred primarily related to conversion of the net Canadian dollar assets of Kingsway Linked Return of Capital Trust ("KLROC Trust"). The Company deconsolidated KLROC Trust in June 2015.

Gain (Loss) on Change in Fair Value of Debt

The gain on change in fair value of debt amounted to $1.1 million in the second quarter of 2016 compared to a loss of $1.2 million in the second quarter of 2015 (gain of $3.6 million year to date compared to a loss of $1.0 million prior year to date). The gain for the second quarter of 2016 is due to a decrease in the fair value of the subordinated debt, whereas the loss for the second quarter of 2015 is due to an increase in the fair value of the subordinated debt and LROC preferred units. The 2016 year to date gain is



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KINGSWAY FINANCIAL SERVICES INC.

due to a decrease in the fair value of the subordinated debt, whereas the 2015 year to date loss is primarily due to an increase in the fair value of the subordinated debt, partially offset by a decrease in the fair value of the LROC preferred units. See "Debt" section for further information.

Loss on Deconsolidation of Subsidiary

Prior to the second quarter of 2015, the Company beneficially owned and controlled 74.8% of KLROC Trust. As a result, the Company had been consolidating the financial statements of KLROC Trust. During the second quarter of 2015 , the Company’s controlling interest in KLROC Trust was reduced to zero upon the Company's repayment of its C$15.8 million outstanding on its LROC preferred units due June 30, 2015. As a result, the Company recorded a non-cash loss on deconsolidation of subsidiary of $4.4 million. This reported loss results from removing the net assets and accumulated other comprehensive loss of KLROC Trust from the Company’s consolidated balance sheets. Refer to Note 5 , " Acquisition, Deconsolidation and Discontinued Operations ," to the unaudited consolidated interim financial statements, for further discussion.

Equity in Net Loss of Investee

Equity in net loss of investee for the three and six months ended June 30, 2016 and 2015 represents the Company's investment in 1347 Capital Corp. See Note 7 , " Investments in Investees ," to the unaudited consolidated interim financial statements, for further discussion.

Income Tax Expense

Income tax expense for the second quarter of 2016 was $0.0 million compared to $0.0 million in the second quarter of 2015 ( $0.1 million year to date compare to $0.1 million prior year to date). See Note 13 , " Income Taxes ," to the unaudited consolidated interim financial statements, for additional detail of the income tax expense recorded for the three and six months ended June 30, 2016 and June 30, 2015 , respectively.

INVESTMENTS

Portfolio Composition

All of our investments in fixed maturities and equity investments are classified as available-for-sale and are reported at fair value. At June 30, 2016 , we held cash and cash equivalents and investments with a carrying value of $152.3 million . As of June 30, 2016 , we held an investments portfolio comprised primarily of fixed maturities issued by the U.S. Government, government agencies and high quality corporate issuers. Investments held by our insurance subsidiaries must comply with applicable domiciliary state regulations that prescribe the type, quality and concentration of investments. Our U.S. operations typically invest in U.S. dollar-denominated instruments to mitigate their exposure to currency rate fluctuations.



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KINGSWAY FINANCIAL SERVICES INC.

Table 2 below summarizes the carrying value of investments, including cash and cash equivalents, at the dates indicated.

TABLE 2 Carrying value of investments, including cash and cash equivalents

(in thousands of dollars, except for percentages)



Type of investment	June 30, 2016	% of Total		December 31, 2015	% of Total
Fixed maturities:
U.S. government, government agencies and authorities	27,716	18.2	%	20,453	12.8	%
States, municipalities and political subdivisions	3,915	2.6	%	2,256	1.4	%
Mortgage-backed	7,350	4.8	%	7,963	5.0	%
Asset-backed securities and collateralized mortgage obligations	4,616	3.0	%	6,023	3.8	%
Corporate	19,406	12.7	%	18,864	11.8	%
Total fixed maturities	63,003	41.3	%	55,559	34.8	%
Equity investments:
Common stock	20,813	13.7	%	26,586	16.7	%
Warrants	695	0.5	%	973	0.6	%
Total equity investments	21,508	14.2	%	27,559	17.3	%
Limited liability investments	21,768	14.3	%	20,141	12.6	%
Other investments	5,435	3.6	%	4,077	2.6	%
Short-term investments	670	0.4	%	400	0.3	%
Total investments	112,384	73.8	%	107,736	67.6	%
Cash and cash equivalents	39,887	26.2	%	51,701	32.4	%
Total	152,271	100.0	%	159,437	100.0	%

Liquidity and Cash Flow Risk

Table 3 below summarizes the fair value by contractual maturities of the fixed maturities portfolio, excluding cash and cash equivalents, at June 30, 2016 and December 31, 2015 .

TABLE 3 Fair value of fixed maturities by contractual maturity date

(in thousands of dollars)



	June 30, 2016	% of Total		December 31, 2015	% of Total
Due in less than one year	8,702	13.8	%	10,078	18.1	%
Due in one through five years	43,258	68.7	%	35,999	64.8	%
Due after five through ten years	3,418	5.4	%	1,425	2.6	%
Due after ten years	7,625	12.1	%	8,057	14.5	%
Total	63,003	100.0	%	55,559	100.0	%

At June 30, 2016 , 82.5% of fixed maturities, including treasury bills, government bonds and corporate bonds, had contractual maturities of five years or less. Actual maturities may differ from contractual maturities because certain issuers have the right to call or prepay obligations with or without call or prepayment penalties. The Company holds cash and high-grade short-term assets which, along with fixed maturities, management believes are sufficient in amount for the payment of unpaid loss and loss adjustment expenses and other operating subsidiary obligations on a timely basis. In the event that additional cash is required to meet obligations to our policyholders and customers, we believe that the high-quality, liquid investments in the portfolios provide us with sufficient liquidity.



	40



KINGSWAY FINANCIAL SERVICES INC.

Market Risk

Market risk is the risk that we will incur losses due to adverse changes in interest or currency exchange rates and equity prices. Given our U.S. operations typically invest in U.S. dollar denominated fixed maturity instruments, our primary market risk exposures in the investments portfolio are to changes in interest rates.

Because the investments portfolio is comprised of primarily fixed maturity instruments that are usually held to maturity, periodic changes in interest rate levels generally impact our financial results to the extent that the investments are recorded at market value and reinvestment yields are different than the original yields on maturing instruments. During periods of rising interest rates, the market values of the existing fixed maturities will generally decrease. The reverse is true during periods of declining interest rates.

Credit Risk

Credit risk is defined as the risk of financial loss due to failure of the other party to a financial instrument to discharge an obligation. Credit risk arises from our positions in short-term investments, corporate debt instruments and government bonds.

The Investment Committee of the Board of Directors is responsible for the oversight of key investment policies and limits. These policies and limits are subject to annual review and approval by the Investment Committee. The Investment Committee is also responsible for ensuring that these policies are implemented and that procedures are in place to manage and control credit risk.

Table 4 below summarizes the composition of the fair values of fixed maturities, excluding cash and cash equivalents, at June 30, 2016 and December 31, 2015 , by rating as assigned by Standard and Poor's ("S&P") or Moody's Investors Service ("Moody's"). Fixed maturities consist of predominantly high-quality instruments in corporate and government bonds with approximately 91.3% of those investments rated 'A' or better at June 30, 2016 . During the first quarter of 2015, the Company received $3.0 million of 8% preferred stock of PIH, redeemable on February 24, 2020, related to the termination of the Company's Management Services Agreement with PIH, as further discussed in Note 19 , " Related Party Transactions ," to the unaudited consolidated interim financial statements. The preferred stock is not rated.

TABLE 4 Credit ratings of fixed maturities



Rating (S&P/Moody's)	June 30, 2016		December 31, 2015
AAA/Aaa	62.9	%	61.9	%
AA/Aa	13.9		10.5
A/A	14.5		18.4
Percentage rated A/A2 or better	91.3	%	90.8	%
BBB/Baa	3.9		3.7
Not rated	4.8		5.5
Total	100.0	%	100.0	%

Other-Than-Temporary Impairment

The Company performs a quarterly analysis of its investments portfolio to determine if declines in market value are other-than-temporary. Further information regarding our detailed analysis and factors considered in establishing an other-than-temporary impairment on an investment is discussed within Note 6 , " Investments ," to the unaudited consolidated interim financial statements.

As a result of the analysis performed by the Company to determine declines in market value that are other-than-temporary, there were no write-downs for other-than-temporary impairments related to investments recorded for the three and six months ended June 30, 2016 . For the three months ended June 30, 2015 , there were no write-downs for other-than-temporary impairments related to investments. For the six months ended June 30, 2015 , the Company recorded a write-down of $0.0 million for other-than-temporary impairment related to fixed maturities.

The length of time an individual investment may be held in an unrealized loss position may vary based on the opinion of the investment manager and the respective analyses related to valuation and to the various credit risks that may prevent us from recapturing the principal investment. In the case of a fixed maturity investment where the investment manager determines that there is little or no risk of default prior to the maturity of a holding, we would elect to hold the investment in an unrealized loss position until the price recovers or the investment matures. In situations where facts emerge that might increase the risk associated with recapture of principal, the Company may elect to sell a fixed maturity investment at a loss.

Due to the inherent volatility of equity markets, we believe an equity investment may trade from time to time below its intrinsic value based on historical valuation measures. In these situations, an equity investment may be maintained in an unrealized loss



	41



KINGSWAY FINANCIAL SERVICES INC.

position for different periods of time based on the underlying economic assumptions driving the investment manager’s valuation of the holding.

At June 30, 2016 and December 31, 2015 , the gross unrealized losses for fixed maturities and equity investments amounted to $2.6 million and $2.6 million , respectively, and there were no unrealized losses attributable to non-investment grade fixed maturities. At each of June 30, 2016 and December 31, 2015 , all unrealized losses on individual investments were considered temporary.

Limited Liability Investments

The Company owns investments in various limited liability companies ("LLCs"), limited partnerships ("LPs") and a general partnership ("GP") that primarily invest in income-producing real estate or real estate related investments. The Company's investments in the LLCs, LPs and GP are accounted for under the equity method of accounting and reported as limited liability investments in the consolidated balance sheets. The most recently available financial statements of the LLCs, LPs and GP are used in applying the equity method. The difference between the end of the reporting period of the LLCs, LPs and GP and that of the Company is no more than three months. Most of the real estate investments are held on a triple net lease basis whereby the lessee agrees to pay all real estate taxes, building insurance and maintenance. Table 5 below presents additional information pertaining to the limited liability investments at June 30, 2016 and December 31, 2015 .

TABLE 5 Limited liability investments

(in thousands of dollars)



	Unfunded Commitment	Carrying Value
Limited liability investments:	June 30, 2016	June 30, 2016	December 31, 2015
Investments held through LLCs	1,598	20,987	19,449
Investments held through LPs and GP	225	781	692
Total	1,823	21,768	20,141

Investment in Investee

At June 30, 2016 , the Company owns 61.0% of the outstanding units of 1347 Investors LLC ("1347 Investors"). Because the Company owns more than 50% of the outstanding units, 1347 Investors is included in the unaudited consolidated interim financial statements of the Company. 1347 Investors has an investment in the common stock and private units of 1347 Capital Corp. which is reflected in investments in investees in the consolidated balance sheets. 1347 Capital Corp. was formed for the purpose of entering into a merger, share exchange, asset acquisition or other similar business combination with one or more businesses or entities.

On July 21, 2014, 1347 Capital Corp. completed an initial public offering. 1347 Capital Corp. had 24 months from the date of the initial public offering to complete a successful business combination. On March 23, 2016, 1347 Capital Corp. announced the signing of a definitive agreement with Limbach Holdings LLC ("Limbach"), in which 1347 Capital Corp. would merge with Limbach. On July 21, 2016, Limbach announced the closing of the previously announced merger, and 1347 Capital Corp. was renamed Limbach Holdings, Inc. As a result of this transaction, the Company's ownership percentage in 1347 Investors was reduced to approximately 27% at the transaction date. As a result of this change in ownership, the Company expects that it will no longer consolidate 1347 Investors and will instead account for its investment in 1347 Investors under the equity method of accounting, beginning with the third quarter of 2016.

PROPERTY AND CASUALTY UNPAID LOSS AND LOSS ADJUSTMENT EXPENSES

Property and casualty unpaid loss and loss adjustment expenses represent the estimated liabilities for reported loss events, incurred but not reported ("IBNR") loss events and the related estimated loss adjustment expenses.

Tables 6 and 7 present distributions, by line of business, of the provision for property and casualty unpaid loss and loss adjustment expenses gross and net of external reinsurance, respectively.



	42



KINGSWAY FINANCIAL SERVICES INC.

TABLE 6 Provision for property and casualty unpaid loss and loss adjustment expenses - gross

(in thousands of dollars)



Line of Business	June 30, 2016	December 31, 2015
Non-standard automobile	50,133	53,066
Commercial automobile	1,095	1,358
Other	967	1,047
Total	52,195	55,471

TABLE 7 Provision for property and casualty unpaid loss and loss adjustment expenses - net of reinsurance recoverable (in thousands of dollars)



Line of Business	June 30, 2016	December 31, 2015
Non-standard automobile	49,354	51,937
Commercial automobile	1,029	1,280
Other	967	1,047
Total	51,350	54,264

Non-Standard Automobile

At June 30, 2016 and December 31, 2015 , the gross provisions for property and casualty unpaid loss and loss adjustment expenses for our non-standard automobile business were $50.1 million and $53.1 million , respectively. The decrease is primarily due to the continuing voluntary run-offs of Amigo and MCC.

Commercial Automobile

At June 30, 2016 and December 31, 2015 , the gross provisions for property and casualty unpaid loss and loss adjustment expenses for our commercial automobile business were $1.1 million and $1.4 million , respectively. The decrease is primarily due to the continuing voluntary run-off of Amigo.

Information with respect to development of our provision for prior years' property and casualty unpaid loss and loss adjustment expenses is presented in Table 8.

TABLE 8 (Decrease) increase in prior years' provision for property and casualty unpaid loss and loss adjustment expenses

(in thousands of dollars)



	Three months ended June 30,				Six months ended June 30,
	2016		2015		2016	2015
(Favorable) unfavorable change in provision for property and casualty unpaid loss and loss adjustment expenses for prior accident years:	(24	)	(408	)	67	(484	)

For the three months ended June 30, 2016 , the Company reported $0.0 million of favorable development for property and casualty loss and loss adjustment expenses from prior accident years (unfavorable development of $0.1 million year to date) compared with favorable development of $0.4 million for the three months ended June 30, 2015 ( $0.5 million prior year to date). The favorable development reported for the three months ended June 30, 2016 was primarily related to the decrease in property and casualty loss and loss adjustment expenses at Amigo, partially offset by an increase in property and casualty unpaid loss and loss adjustment expenses at Mendota. The unfavorable development reported for the six months ended June 30, 2016 was primarily related to property and casualty loss and loss adjustment expenses at Mendota, partially offset by a decrease in property and casualty unpaid loss and loss adjustment expenses at Amigo. The favorable development reported for the three and six months ended June 30, 2015 was primarily related to the decrease in property and casualty loss and loss adjustment expenses at Amigo, offset by an increase in property and casualty unpaid loss and loss adjustment expenses at Mendota.

The Company cannot predict whether the provision for property and casualty unpaid loss and loss adjustment expenses will develop favorably or unfavorably from the amounts reported in the Company’s unaudited consolidated interim financial statements. The



	43



KINGSWAY FINANCIAL SERVICES INC.

Company believes that any such development will not have a material effect on the Company’s consolidated equity but could have a material effect on the Company’s consolidated financial results for a given period.

See the "Critical Accounting Estimates and Assumptions" section of Management's Discussion and Analysis of Financial Condition and Results of Operations in the 2015 Annual Report for additional information pertaining to the Company’s process of estimating the provision for unpaid loss and loss adjustment expenses.

DEBT

Between December 4, 2002 and December 16, 2003, six subsidiary trusts of the Company issued $90.5 million of 30-year capital securities to third-parties in separate private transactions. In each instance, a corresponding floating rate junior subordinated deferrable interest debenture was then issued by KAI to the trust in exchange for the proceeds from the private sale. The floating rate debentures bear interest at the rate of the London interbank offered interest rate for three-month U.S. dollar deposits, plus spreads ranging from 3.85% to 4.20%. The Company has the right to call each of these securities at par value any time after five years from their issuance until their maturity.

The Company's subordinated debt is measured and reported at fair value. At June 30, 2016 , the carrying value of the subordinated debt is $36.3 million . The fair value of the subordinated debt is calculated using a model based on significant market observable inputs and inputs developed by a third-party. For a description of the market observable inputs and inputs developed by a third-party used in determining fair value of debt, see Note 20 , " Fair Value of Financial Instruments ," to the unaudited consolidated interim financial statements.

During the six months ended June 30, 2016 , the Company experienced an increase in the credit spread assumption developed by the third-party and a decrease in the market observable swap rates. The increase in the credit spread assumption has resulted in a decrease in fair value of debt of $1.2 million and the decrease in the market observable swap rates has resulted in a decrease in fair value of $2.9 million during the six months ended June 30, 2016 . These two variables have primarily contributed to the $3.6 million decrease in fair value of the Company’s subordinated debt between December 31, 2015 and June 30, 2016 . This decrease in fair value is reported as gain on change in fair value of debt in the Company’s unaudited consolidated statements of operations. Alternatively, a decrease in the credit spread assumption or an increase in the market observable swap rates would have the effect of increasing the fair value of the Company’s subordinated debt, resulting in loss on change in fair value of debt in the Company’s unaudited consolidated statements of operations.

The other primary variable affecting the fair value of debt calculation is the passage of time, which will always have the effect of increasing the fair value of debt. The fair value of the Company’s subordinated debt increased by $0.5 million between December 31, 2015 and June 30, 2016 as a result of the passage of time. Though the changes in the model assumptions will continue to introduce volatility each quarter to the Company’s reported gain or loss on change in fair value of debt, the fair value of the Company’s subordinated debt will eventually equal the principal value of the subordinated debt by the time of the stated redemption date of each trust, beginning with the trust maturing on December 4, 2032 and continuing through January 8, 2034, the redemption date of the last of the Company’s outstanding trusts.

For a description of each of the Company's six subsidiary trusts, see Note 11 , " Debt ," to the unaudited consolidated interim financial statements.

RECENTLY ISSUED ACCOUNTING STANDARDS

See Note 4 , " Recently Issued Accounting Standards ," to the unaudited consolidated interim financial statements, for discussion of certain accounting standards that may be applicable to the Company's current and future consolidated financial statements.

LIQUIDITY AND CAPITAL RESOURCES

The purpose of liquidity management is to ensure that there is sufficient cash to meet all financial commitments and obligations as they fall due. The liquidity requirements of the Company and its subsidiaries have been met primarily by funds generated from operations, disposal of discontinued operations, investment maturities and income and other returns received on investments. Cash provided from these sources is used primarily for loss and loss adjustment expense payments, debt servicing and other operating expenses. The timing and amount of payments for loss and loss adjustment expenses may differ materially from our provisions for unpaid loss and loss adjustment expenses, which may create increased liquidity requirements.



	44



KINGSWAY FINANCIAL SERVICES INC.

Cash Flows

During the six months ended June 30, 2016 , the net cash used in operating activities as reported on the unaudited consolidated statements of cash flows was $5.3 million . This use of cash can be explained primarily by the increase in premiums and service fee receivable of $4.9 million , the gain on change in fair value of debt of $3.6 million and the decrease in the provision for unpaid loss and loss adjustment expenses of $3.3 million ; partially offset by the increase in unearned premiums of $5.9 million .

During the six months ended June 30, 2016 , the net cash used in investing activities as reported on the unaudited consolidated statements of cash flows was $6.4 million . This use of cash was driven primarily by purchases of fixed maturities, equity investments, limited liability investments, other investments and short-term investments in excess of proceeds from sales and maturities of fixed maturities and equity investments.

During the six months ended June 30, 2016 , the net cash used in financing activities as reported on the unaudited consolidated statements of cash flows was $0.1 million . This use of cash is due to the Company's repurchase of its common stock for cancellation during the second quarter of 2016.

In summary, as reported on the unaudited consolidated statements of cash flows, the Company's net decrease in cash and cash equivalents during the six months ended June 30, 2016 was $11.8 million .

The Company's Insurance Underwriting subsidiaries fund their obligations primarily through premium and investment income and maturities in the investments portfolios. The Company's Insurance Services subsidiaries fund their obligations primarily through service fee and commission income.

The liquidity of the holding company is managed separately from its subsidiaries. The holding company’s liquidity, defined as the amount of cash in the bank accounts of Kingsway Financial Services Inc. and Kingsway America Inc., was $5.8 million and $13.2 million at June 30, 2016 and December 31, 2015 , respectively. These amounts are reflected in the cash and cash equivalents of $39.9 million and $51.7 million reported at June 30, 2016 and December 31, 2015 , respectively, on the Company’s consolidated balance sheets. The cash and cash equivalents other than the holding company’s liquidity represents restricted and unrestricted cash held by the Company’s Insurance Underwriting and Insurance Services subsidiaries and is not considered to be available to meet holding company obligations, which primarily consist of interest payments on debt; holding company operating expenses; transaction-driven expenses of the Company’s merchant banking activities; and any other extraordinary demands on the holding company.

The holding company’s liquidity of $5.8 million at June 30, 2016 represents approximately six months of interest payments on debt and regularly recurring operating expenses before any transaction-driven expenses of the Company’s merchant banking activities or any other extraordinary demands on the holding company. Actions available to the holding company to raise liquidity in order to meet its obligations include the sale of illiquid passive investments; sale of subsidiaries; issuance of equity securities; and giving notice to its Trust Preferred trustees of its intention to exercise its voluntary right to defer interest payments for up to 20 quarters, which right the Company previously exercised during the period from the first quarter of 2011 through the fourth quarter of 2015. Receipt of dividends from the Insurance Underwriting subsidiaries is not generally considered a source of liquidity for the holding company. The insurance subsidiaries require regulatory approval for the return of capital and, in certain circumstances, prior to the payment of dividends. At June 30, 2016 , the U.S. insurance subsidiaries of the Company were restricted from making any dividend payments to the holding company without regulatory approval pursuant to the domiciliary state insurance regulations. While the Company believes it has sources of liquidity available to allow it to continue to meet its holding company obligations, there can be no assurance that such sources of liquidity will be available when needed.

Regulatory Capital

In the United States, a risk-based capital ("RBC") formula is used by the National Association of Insurance Commissioners ("NAIC") to identify property and casualty insurance companies that may not be adequately capitalized. In general, insurers reporting surplus as regards policyholders below 200% of the authorized control level, as defined by the NAIC, at December 31 are subject to varying levels of regulatory action, including discontinuation of operations. As of December 31, 2015 , surplus as regards policyholders reported by each of our insurance subsidiaries exceeded the 200% threshold.

Our reinsurance subsidiary, which is domiciled in Barbados, is required by the regulator in Barbados to maintain minimum capital levels. As of June 30, 2016 , the capital maintained by Kingsway Reinsurance Corporation was in excess of the regulatory capital requirements in Barbados.



	45



KINGSWAY FINANCIAL SERVICES INC.

Item 3. Quantitative and Qualitative Disclosures about Market Risk

Not applicable.



	46



KINGSWAY FINANCIAL SERVICES INC.

Item 4. Controls and Procedures

The Company's management performed an evaluation under the supervision and with the participation of the Company's principal executive officer and the principal financial officer, and completed an evaluation of the effectiveness of the design and operation of the Company's disclosure controls and procedures (as that term is defined in Rules 13a-15(e) and 15d-15(e), as adopted by the Securities and Exchange Commission ("SEC") under the Securities Exchange Act of 1934, as amended ("the Exchange Act") as of June 30, 2016 . Disclosure controls and procedures are the controls and other procedures that are designed to ensure that information required to be disclosed in the reports that we file or submit under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the SEC's rules and forms. Disclosure controls and procedures include, without limitation, controls and procedures designed to ensure that information required to be disclosed in the reports that the Company files or submits under the Exchange Act is accumulated and communicated to management, including the principal executive officer and principal financial officer, as appropriate, to allow timely decisions regarding required disclosures.

Based on that evaluation, the Company's principal executive officer and principal financial officer concluded that the Company's disclosure controls and procedures are effective.

During the Company's last fiscal quarter, there were no changes in internal control over financial reporting that materially affected, or are reasonably likely to materially affect, the Company's internal control over financial reporting.

PART II. OTHER INFORMATION

Item 1. Legal Proceedings

Information concerning pending legal proceedings is incorporated herein by reference to Note 21 , " Commitments and Contingencies ," to the unaudited consolidated interim financial statements in Part I of this Form 10-Q.

Item 1A. Risk Factors

There are no material changes with respect to those risk factors previously disclosed in our 2015 Annual Report.

Item 2. Unregistered Sales of Equity Securities and Use of Proceeds

None

Item 3. Defaults Upon Senior Securities

None

Item 4. Mine Safety Disclosures

Not applicable.

Item 5. Other Information

None



	47



KINGSWAY FINANCIAL SERVICES INC.

Item 6. Exhibits



2.1		Stock Purchase Agreement, dated as of May 17, 2016 by and among CMC Acquisition, LLC, CRIC TRT Acquisition LLC and BNSF-Delpres Investments Ltd. (included as Exhibit 2.1 to the Form 8-K, filed July 20, 2016, and incorporated herein by reference).

2.2		Amendment to Stock Purchase Agreement, dated as of June 17, 2016, by and among CMC Acquisition, LLC, CRIC TRT Acquisition LLC, and BNSF-Delpres Investments Ltd. (included as Exhibit 2.1 to the Form 8-K, filed June 17, 2016, and incorporated herein by reference).

10.1		Stockholders’ Agreement, dated as of July 14, 2016, by and between CMC Industries, Inc., CMC Acquisition LLC and CRIC TRT Acquisition LLC (included as Exhibit 10.1 to Form 8-K, filed July 20, 2016, and incorporated herein by reference).

10.2		Management Services Agreement, dated as of July 14, 2016, by and between TRT LeaseCo, LLC and DGI-BNSF Corp. (included as Exhibit 10.2 to Form 8-K, filed July 20, 2016, and incorporated herein by reference).

10.3		TRT LeaseCo, LLC 4.07% Senior Secured Note, Due May 15, 2034.

10.4		Deed of Trust, Security Agreement, Assignment of Leases and Rents and Fixture Filing Statement, dated as of March 12, 2015, from TRT LeaseCo, LLC to Malcolm Morris, as Deed of Trust Trustee for the benefit of Wells Fargo Bank Northwest, N.A., as trustee.

10.5		Lease between TRT LeaseCo, LLC, as Landlord, and BNSF Railway Company (f/k/a The Burlington Northern and Santa Fe Railway Company), as Tenant, dated as of June 1, 2014.

31.1		Certification of Principal Executive Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.

31.2		Certification of Principal Financial Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.

32.1		Certification of Principal Executive Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.

32.2		Certification of Principal Financial Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.

101.INS		XBRL Instance Document

101.SCH		XBRL Taxonomy Extension Schema

101.CAL		XBRL Taxonomy Extension Calculation Linkbase

101.DEF		XBRL Taxonomy Extension Definition Linkbase

101.LAB		XBRL Taxonomy Extension Label Linkbase

101.PRE		XBRL Taxonomy Extension Presentation Linkbase



	48



KINGSWAY FINANCIAL SERVICES INC.

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.



			KINGSWAY FINANCIAL SERVICES INC.

Date:	August 4, 2016	By:	/s/ Larry G. Swets, Jr.
			Larry G. Swets, Jr., President, Chief Executive Officer and Director
			(principal executive officer)

Date:	August 4, 2016	By:	/s/ William A. Hickey, Jr.
			William A. Hickey, Jr., Chief Financial Officer and Executive Vice President
			(principal financial officer)



	49

Exhibit 10.3

TRT LeaseCo, LLC

4.07% Senior Secured Note, Due May 15, 2034

No. R- March 12, 2015

$182,666,908.56

TRT LeaseCo, LLC, a limited liability company organized under the laws of the State of Delaware (the “Company” ), for value received, hereby promises to pay to or to the order of Wells Fargo Bank Northwest, N.A., as trustee or registered assigns, the principal amount of One Hundred Eighty-Two Million Six Hundred Sixty-Six Thousand Nine Hundred Eight and 56/100 Dollars ($182,666,908.56) together with interest from the date hereof until maturity at the rate of 4.07% per annum (computed on the basis of a 360-day year of 12 consecutive 30-day months) in installments as provided in the amortization schedule attached hereto as Annex I. The Company further promises to pay interest at the rate of 6.07% per annum (i) on each overdue installment of principal, premium, if any, and (to the extent legally enforceable) upon each overdue installment of interest in each case from and after the due date of each such installment, whether by acceleration or otherwise, until paid and (ii) during the continuance of an Event of Default, on the unpaid balance hereof and on any overdue payment of any Make-Whole Amount. Payments of principal, premium, if any, and interest shall be made in such coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts by check mailed and addressed to the holder hereof at the address set forth on page 1 of the Note Purchase Agreement described below, or, at the option of the holder hereof, in such manner and at such other place in the United States of America as the holder hereof shall have designated to the Company in writing.

This Note is issued under and pursuant to the terms and provisions of the Note Purchase Agreement dated as of March 12, 2015 (the “Note Purchase Agreement” ) entered into by the Company with Wells Fargo Bank Northwest, N.A., as trustee (the “Purchaser” ) and secured by (i) the Deed of Trust, Security Agreement, Assignment of Leases and Rents and Fixture Filing Statement dated as of March 12, 2015 (the “Deed of Trust” ) from the Company for the benefit of the Purchaser in respect of the Granted Property described therein and the Lease dated June 1, 2014 between the Company, as landlord, and BNSF Railway Company, a corporation organized under the laws of the State of Delaware, as tenant, (ii) the Assignment of Leases and Rents dated as of March 12, 2015 from the Company to the Purchaser. This Note and the holder hereof are entitled to all the benefits provided for by the Note Purchase Agreement, the Assignment of Leases and Rents and the Deed of Trust, to which Note Purchase Agreement, the Assignment of Leases and Rents and Deed of Trust reference is hereby made for the statement thereof, including a description of the Granted Property (as defined in the Deed of Trust), the nature and extent of the security and the rights of the holder of the Note and of the Company in respect thereof. Capitalized terms not otherwise defined herein shall have the respective meanings ascribed thereto in the Deed of Trust. This Note shall be governed by and construed in accordance with the laws of the State of New York. This Note is subject to the usury savings clause set forth in Addendum A to the Deed of Trust. This Note may be defeased prior to its expressed maturity date pursuant to the terms and conditions set forth in the Defeasance Rider attached hereto as Annex II.

This Note may be declared due prior to its expressed maturity date, voluntary prepayments may be made thereon by the Company and certain prepayments are required to be made thereon, all in the events, on the terms and in the manner and amounts as provided in the Deed of Trust.



		TRT LeaseCO, LLC, a Delaware
		limited liability company


	By:
		Name: Leo S. Schwartz
		Title: Vice President

Exhibit 10.3

ANNEX I

AMORTIZATION SCHEDULE

See attached.

Exhibit 10.3

Senior Note



Settlement Date:	3/12/2015	Final Maturity:	5/15/2034
Monthly Coupon:	4.07%	Term (months):	230



Payment Date	Rent		Trustee Fee		Payment		Principal		Interest		O/S Principal Balance
											$	182,666,908.56
3/15/2015					$	61,954.53			$	61,954.53	$	182,666,908.56
4/15/2015	$	777,280.00	$	500.00	$	776,780.00	$	157,234.74	$	619,545.26	$	182,509,673.82
5/15/2015	$	777,280.00	$	500.00	$	776,780.00	$	157,768.02	$	619,011.98	$	182,351,905.80
6/15/2015	$	794,768.80	$	500.00	$	794,268.80	$	175,791.92	$	618,476.88	$	182,176,113.88
7/15/2015	$	794,768.80	$	500.00	$	794,268.80	$	176,388.15	$	617,880.65	$	181,999,725.73
8/15/2015	$	794,768.80	$	500.00	$	794,268.80	$	176,986.40	$	617,282.40	$	181,822,739.33
9/15/2015	$	794,768.80	$	500.00	$	794,268.80	$	177,586.68	$	616,682.12	$	181,645,152.65
10/15/2015	$	794,768.80	$	500.00	$	794,268.80	$	178,188.99	$	616,079.81	$	181,466,963.66
11/15/2015	$	794,768.80	$	500.00	$	794,268.80	$	178,793.35	$	615,475.45	$	181,288,170.31
12/15/2015	$	794,768.80	$	500.00	$	794,268.80	$	179,399.76	$	614,869.04	$	181,108,770.55
1/15/2016	$	794,768.80	$	500.00	$	794,268.80	$	180,008.22	$	614,260.58	$	180,928,762.33
2/15/2016	$	794,768.80	$	500.00	$	794,268.80	$	180,618.75	$	613,650.05	$	180,748,143.58
3/15/2016	$	794,768.80	$	500.00	$	794,268.80	$	181,231.35	$	613,037.45	$	180,566,912.23
4/15/2016	$	794,768.80	$	500.00	$	794,268.80	$	181,846.02	$	612,422.78	$	180,385,066.21
5/15/2016	$	794,768.80	$	500.00	$	794,268.80	$	182,462.78	$	611,806.02	$	180,202,603.43
6/15/2016	$	812,651.10	$	500.00	$	812,151.10	$	200,963.94	$	611,187.16	$	180,001,639.49
7/15/2016	$	812,651.10	$	500.00	$	812,151.10	$	201,645.54	$	610,505.56	$	179,799,993.95
8/15/2016	$	812,651.10	$	500.00	$	812,151.10	$	202,329.45	$	609,821.65	$	179,597,664.50
9/15/2016	$	812,651.10	$	500.00	$	812,151.10	$	203,015.69	$	609,135.41	$	179,394,648.81
10/15/2016	$	812,651.10	$	500.00	$	812,151.10	$	203,704.25	$	608,446.85	$	179,190,944.56
11/15/2016	$	812,651.10	$	500.00	$	812,151.10	$	204,395.15	$	607,755.95	$	178,986,549.41
12/15/2016	$	812,651.10	$	500.00	$	812,151.10	$	205,088.39	$	607,062.71	$	178,781,461.02
1/15/2017	$	812,651.10	$	500.00	$	812,151.10	$	205,783.98	$	606,367.12	$	178,575,677.04
2/15/2017	$	812,651.10	$	500.00	$	812,151.10	$	206,481.93	$	605,669.17	$	178,369,195.11
3/15/2017	$	812,651.10	$	500.00	$	812,151.10	$	207,182.25	$	604,968.85	$	178,162,012.86
4/15/2017	$	812,651.10	$	500.00	$	812,151.10	$	207,884.94	$	604,266.16	$	177,954,127.92
5/15/2017	$	812,651.10	$	500.00	$	812,151.10	$	208,590.02	$	603,561.08	$	177,745,537.90
6/15/2017	$	830,935.75	$	500.00	$	830,435.75	$	227,582.13	$	602,853.62	$	177,517,955.77
7/15/2017	$	830,935.75	$	500.00	$	830,435.75	$	228,354.02	$	602,081.73	$	177,289,601.75
8/15/2017	$	830,935.75	$	500.00	$	830,435.75	$	229,128.52	$	601,307.23	$	177,060,473.23
9/15/2017	$	830,935.75	$	500.00	$	830,435.75	$	229,905.64	$	600,530.11	$	176,830,567.59
10/15/2017	$	830,935.75	$	500.00	$	830,435.75	$	230,685.41	$	599,750.34	$	176,599,882.18
11/15/2017	$	830,935.75	$	500.00	$	830,435.75	$	231,467.82	$	598,967.93	$	176,368,414.36
12/15/2017	$	830,935.75	$	500.00	$	830,435.75	$	232,252.88	$	598,182.87	$	176,136,161.48
1/15/2018	$	830,935.75	$	500.00	$	830,435.75	$	233,040.60	$	597,395.15	$	175,903,120.88

Exhibit 10.3



Payment Date	Rent		Trustee Fee		Payment		Principal		Interest		O/S Principal Balance
2/15/2018	$	830,935.75	$	500.00	$	830,435.75	$	233,831.00	$	596,604.75	$	175,669,289.88
3/15/2018	$	830,935.75	$	500.00	$	830,435.75	$	234,624.08	$	595,811.67	$	175,434,665.80
4/15/2018	$	830,935.75	$	500.00	$	830,435.75	$	235,419.84	$	595,015.91	$	175,199,245.96
5/15/2018	$	830,935.75	$	500.00	$	830,435.75	$	236,218.31	$	594,217.44	$	174,963,027.65
6/15/2018	$	849,631.80	$	500.00	$	849,131.80	$	255,715.53	$	593,416.27	$	174,707,312.12
7/15/2018	$	849,631.80	$	500.00	$	849,131.80	$	256,582.83	$	592,548.97	$	174,450,729.29
8/15/2018	$	849,631.80	$	500.00	$	849,131.80	$	257,453.08	$	591,678.72	$	174,193,276.21
9/15/2018	$	849,631.80	$	500.00	$	849,131.80	$	258,326.27	$	590,805.53	$	173,934,949.94
10/15/2018	$	849,631.80	$	500.00	$	849,131.80	$	259,202.43	$	589,929.37	$	173,675,747.51
11/15/2018	$	849,631.80	$	500.00	$	849,131.80	$	260,081.56	$	589,050.24	$	173,415,665.95
12/15/2018	$	849,631.80	$	500.00	$	849,131.80	$	260,963.67	$	588,168.13	$	173,154,702.28
1/15/2019	$	849,631.80	$	500.00	$	849,131.80	$	261,848.77	$	587,283.03	$	172,892,853.51
2/15/2019	$	849,631.80	$	500.00	$	849,131.80	$	262,736.87	$	586,394.93	$	172,630,116.64
3/15/2019	$	849,631.80	$	500.00	$	849,131.80	$	263,627.99	$	585,503.81	$	172,366,488.65
4/15/2019	$	849,631.80	$	500.00	$	849,131.80	$	264,522.13	$	584,609.67	$	172,101,966.52
5/15/2019	$	849,631.80	$	500.00	$	849,131.80	$	265,419.30	$	583,712.50	$	171,836,547.22
6/15/2019	$	868,748.52	$	500.00	$	868,248.52	$	285,436.23	$	582,812.29	$	171,551,110.99
7/15/2019	$	868,748.52	$	500.00	$	868,248.52	$	286,404.34	$	581,844.18	$	171,264,706.65
8/15/2019	$	868,748.52	$	500.00	$	868,248.52	$	287,375.72	$	580,872.80	$	170,977,330.93
9/15/2019	$	868,748.52	$	500.00	$	868,248.52	$	288,350.41	$	579,898.11	$	170,688,980.52
10/15/2019	$	868,748.52	$	500.00	$	868,248.52	$	289,328.39	$	578,920.13	$	170,399,652.13
11/15/2019	$	868,748.52	$	500.00	$	868,248.52	$	290,309.70	$	577,938.82	$	170,109,342.43
12/15/2019	$	868,748.52	$	500.00	$	868,248.52	$	291,294.33	$	576,954.19	$	169,818,048.10
1/15/2020	$	868,748.52	$	500.00	$	868,248.52	$	292,282.31	$	575,966.21	$	169,525,765.79
2/15/2020	$	868,748.52	$	500.00	$	868,248.52	$	293,273.63	$	574,974.89	$	169,232,492.16
3/15/2020	$	868,748.52	$	500.00	$	868,248.52	$	294,268.32	$	573,980.20	$	168,938,223.84
4/15/2020	$	868,748.52	$	500.00	$	868,248.52	$	295,266.38	$	572,982.14	$	168,642,957.46
5/15/2020	$	868,148.52	$	500.00	$	868,248.52	$	296,267.82	$	571,980.70	$	168,346,689.64
6/15/2020	$	888,295.36	$	500.00	$	887,795.36	$	316,819.50	$	570,975.86	$	168,029,870.14
7/15/2020	$	888,295.36	$	500.00	$	887,795.36	$	317,894.05	$	569,901.31	$	167,711,976.09
8/15/2020	$	888,295.36	$	500.00	$	887,795.36	$	318,972.24	$	568,823.12	$	167,393,003.85
9/15/2020	$	888,295.36	$	500.00	$	887,795.36	$	320,054.09	$	567,741.27	$	167,072,949.76
9/15/2021	$	908,282.01	$	500.00	$	907,782.01	$	353,516.76	$	554,265.25	$	163,066,214.17

Exhibit 10.3



Payment Date	Rent		Trustee Fee		Payment		Principal		Interest		O/S Principal Balance
10/15/2021	$	908,282.01	$	500.00	$	907,782.01	$	354,715.77	$	553,066.24	$	162,711,498.40
11/15/2021	$	908,282.01	$	500.00	$	907,782.01	$	355,918.84	$	551,863.17	$	162,355,579.56
12/15/2021	$	908,282.01	$	500.00	$	907,782.01	$	357,126.00	$	550,656.01	$	161,998,453.56
1/15/2022	$	908,282.01	$	500.00	$	907,782.01	$	358,337.26	$	549,444.75	$	161,640,116.30
2/15/2022	$	908,282.01	$	500.00	$	907,782.01	$	359,552.62	$	548,229.39	$	161,280,563.68
3/15/2022	$	908,282.01	$	500.00	$	907,782.01	$	360,772.10	$	547,009.91	$	160,919,791.58
4/15/2022	$	908,282.01	$	500.00	$	907,782.01	$	361,995.72	$	545,786.29	$	160,557,795.86
5/15/2022	$	908,282.01	$	500.00	$	907,782.01	$	363,223.49	$	544,558.52	$	160,194,572.37
6/15/2022	$	928,718.36	$	500.00	$	928,218.36	$	384,891.77	$	543,326.59	$	159,809,680.60
7/15/2022	$	928,718.36	$	500.00	$	928,218.36	$	386,197.19	$	542,021.17	$	159,423,483.41
8/15/2022	$	928,718.36	$	500.00	$	928,218.36	$	387,507.05	$	540,711.31	$	159,035,976.36
9/15/2022	$	928,718.36	$	500.00	$	928,218.36	$	388,821.34	$	539,397.02	$	158,647,155.02
10/15/2022	$	928,718.36	$	500.00	$	928,218.36	$	390,140.09	$	538,078.27	$	158,257,014.93
11/15/2022	$	928,718.36	$	500.00	$	928,218.36	$	391,463.32	$	536,755.04	$	157,865,551.61
12/15/2022	$	928,718.36	$	500.00	$	928,218.36	$	392,791.03	$	535,427.33	$	157,472,760.58
1/15/2023	$	928,718.36	$	500.00	$	928,218.36	$	394,123.25	$	534,095.11	$	157,078,637.33
2/15/2023	$	928,718.36	$	500.00	$	928,218.36	$	395,459.98	$	532,758.38	$	156,683,177.35
3/15/2023	$	928,718.36	$	500.00	$	928,218.36	$	396,801.25	$	531,417.11	$	156,286,376.10
4/15/2023	$	928,718.36	$	500.00	$	928,218.36	$	398,147.07	$	530,071.29	$	155,888,229.03
5/15/2023	$	928,718.36	$	500.00	$	928,218.36	$	399,497.45	$	528,720.91	$	155,488,731.58
6/15/2023	$	949,614.52	$	500.00	$	949,114.52	$	421,748.57	$	527,365.95	$	155,066,983.01
7/15/2023	$	949,614.52	$	500.00	$	949,114.52	$	423,179.00	$	525,935.52	$	154,643,804.01
8/15/2023	$	949,614.52	$	500.00	$	949,114.52	$	424,614.28	$	524,500.24	$	154,219,189.73
9/15/2023	$	949,614.52	$	500.00	$	949,114.52	$	426,054.43	$	523,060.09	$	153,793,135.30
10/15/2023	$	949,614.52	$	500.00	$	949,114.52	$	427,499.47	$	521,615.05	$	153,365,635.83
11/15/2023	$	949,614.52	$	500.00	$	949,114.52	$	428,949.41	$	520,165.11	$	152,936,686.42
12/15/2023	$	949,614.52	$	500.00	$	949,114.52	$	430,404.26	$	518,710.26	$	152,506,282.16
1/15/2024	$	949,614.52	$	500.00	$	949,114.52	$	431,864.05	$	517,250.47	$	152,074,418.11
2/15/2024	$	949,614.52	$	500.00	$	949,114.52	$	433,328.79	$	515,785.73	$	151,641,089.32
3/15/2024	$	949,614.52	$	500.00	$	949,114.52	$	434,798.49	$	514,316.03	$	151,206,290.83
4/15/2024	$	949,614.52	$	500.00	$	949,114.52	$	436,273.18	$	512,841.34	$	150,770,017.65
5/15/2024	$	949,614.52	$	500.00	$	949,114.52	$	437,752.88	$	511,361.64	$	150,332,264.77
6/15/2024	$	970,980.85	$	500.00	$	970,480.85	$	460,603.92	$	509,876.93	$	149,871,660.85
7/15/2024	$	970,980.85	$	500.00	$	970,480.85	$	462,166.13	$	508,314.72	$	149,409,494.72
8/15/2024	$	970,980.85	$	500.00	$	970,480.85	$	463,733.65	$	506,747.20	$	148,945,761.07
9/15/2024	$	970,980.85	$	500.00	$	970,480.85	$	465,306.48	$	505,174.37	$	148,480,454.59
10/15/2024	$	970,980.85	$	500.00	$	970,480.85	$	466,884.64	$	503,596.21	$	148,013,569.95
11/15/2024	$	970,980.85	$	500.00	$	970,480.85	$	468,468.16	$	502,012.69	$	147,545,101.79
12/15/2024	$	970,980.85	$	500.00	$	970,480.85	$	470,057.05	$	500,423.80	$	147,075,044.74
1/15/2025	$	970,980.85	$	500.00	$	970,480.85	$	471,651.32	$	498,829.53	$	146,603,393.42
2/15/2025	$	970,980.85	$	500.00	$	970,480.85	$	473,251.01	$	497,229.84	$	146,130,142.41
3/15/2025	$	970,980.85	$	500.00	$	970,480.85	$	474,856.12	$	495,624.73	$	145,655,286.29
4/15/2025	$	970,980.85	$	500.00	$	970,480.85	$	476,466.67	$	494,014.18	$	145,178,819.62
5/15/2025	$	970,980.85	$	500.00	$	970,480.85	$	478,082.69	$	492,398.16	$	144,700,736.93

Exhibit 10.3



Payment Date	Rent		Trustee Fee		Payment		Principal		Interest		O/S Principal Balance
6/15/2025	$	992,827.92	$	500.00	$	992,327.92	$	501,551.25	$	490,776.67	$	144,199,185.68
7/15/2025	$	992,827.92	$	500.00	$	992,327.92	$	503,252.35	$	489,075.57	$	143,695,933.33
8/15/2025	$	992,827.92	$	500.00	$	992,327.92	$	504,959.21	$	487,368.71	$	143,190,974.12
9/15/2025	$	992,827.92	$	500.00	$	992,327.92	$	506,671.87	$	485,656.05	$	142,684,302.25
10/15/2025	$	992,827.92	$	500.00	$	992,327.92	$	508,390.33	$	483,937.59	$	142,175,911.92
11/15/2025	$	992,827.92	$	500.00	$	992,327.92	$	510,114.62	$	482,213.30	$	141,665,797.30
12/15/2025	$	992,827.92	$	500.00	$	992,327.92	$	511,844.76	$	480,483.16	$	141,153,952.54
1/15/2026	$	992,827.92	$	500.00	$	992,327.92	$	513,580.76	$	478,747.16	$	140,640,371.78
2/15/2026	$	992,827.92	$	500.00	$	992,327.92	$	515,322.66	$	477,005.26	$	140,125,049.12
3/15/2026	$	992,827.92	$	500.00	$	992,327.92	$	517,070.46	$	475,257.46	$	139,607,978.66
4/15/2026	$	992,827.92	$	500.00	$	992,327.92	$	518,824.19	$	473,503.73	$	139,089,154.47
5/15/2026	$	992,827.92	$	500.00	$	992,327.92	$	520,583.87	$	471,744.05	$	138,568,570.60
6/15/2026	$	1,015,166.55	$	500.00	$	1,014,666.55	$	544,688.15	$	469,978.40	$	138,023,882.45
7/15/2026	$	1,015,166.55	$	500.00	$	1,014,666.55	$	546,535.55	$	468,131.00	$	137,477,346.90
8/15/2026	$	1,015,166.55	$	500.00	$	1,014,666.55	$	548,389.22	$	466,277.33	$	136,928,957.68
9/15/2026	$	1,015,166.55	$	500.00	$	1,014,666.55	$	550,249.17	$	464,417.38	$	136,378,708.51
10/15/2026	$	1,015,166.55	$	500.00	$	1,014,666.55	$	552,115.43	$	462,551.12	$	135,826,593.08
11/15/2026	$	1,015,166.55	$	500.00	$	1,014,666.55	$	553,988.02	$	460,678.53	$	135,272,605.06
12/15/2026	$	1,015,166.55	$	500.00	$	1,014,666.55	$	555,866.96	$	458,799.59	$	134,716,738.10
1/15/2027	$	1,015,166.55	$	500.00	$	1,014,666.55	$	557,752.28	$	456,914.27	$	134,158,985.82
2/15/2027	$	1,015,166.55	$	500.00	$	1,014,666.55	$	559,643.99	$	455,022.56	$	133,599,341.83
3/15/2027	$	1,015,166.55	$	500.00	$	1,014,666.55	$	561,542.12	$	453,124.43	$	133,037,799.71
4/15/2027	$	1,015,166.55	$	500.00	$	1,014,666.55	$	563,446.68	$	451,219.87	$	132,474,353.03
5/15/2027	$	1,015,166.55	$	500.00	$	1,014,666.55	$	565,357.70	$	449,308.85	$	131,908,995.33
6/15/2027	$	1,038,007.80	$	500.00	$	1,037,507.80	$	590,116.46	$	447,391.34	$	131,318,878.87
7/15/2027	$	1,038,007.80	$	500.00	$	1,037,507.80	$	592,117.94	$	445,389.86	$	130,726,760.93
8/15/2027	$	1,038,007.80	$	500.00	$	1,037,507.80	$	594,126.20	$	443,381.60	$	130,132,634.73
9/15/2027	$	1,038,007.80	$	500.00	$	1,037,507.80	$	596,141.28	$	441,366.52	$	129,536,493.45
10/15/2027	$	1,038,007.80	$	500.00	$	1,037,507.80	$	598,163.19	$	439,344.61	$	128,938,330.26
11/15/2027	$	1,038,007.80	$	500.00	$	1,037,507.80	$	600,191.96	$	437,315.84	$	128,338,138.30
12/15/2027	$	1,038,007.80	$	500.00	$	1,037,507.80	$	602,227.61	$	435,280.19	$	127,735,910.69
1/15/2028	$	1,038,007.80	$	500.00	$	1,037,507.80	$	604,270.17	$	433,237.63	$	127,131,640.52
2/15/2028	$	1,038,007.80	$	500.00	$	1,037,507.80	$	606,319.65	$	431,188.15	$	126,525,320.87
3/15/2028	$	1,038,007.80	$	500.00	$	1,037,507.80	$	608,376.09	$	429,131.71	$	125,916,944.78
4/15/2028	$	1,038,007.80	$	500.00	$	1,037,507.80	$	610,439.50	$	427,068.30	$	125,306,505.28
5/15/2028	$	1,038,007.80	$	500.00	$	1,037,507.80	$	612,509.90	$	424,997.90	$	124,693,995.38
6/15/2028	$	1,061,362.98	$	500.00	$	1,060,862.98	$	637,942.51	$	422,920.47	$	124,056,052.87
7/15/2028	$	1,061,362.98	$	500.00	$	1,060,862.98	$	640,106.20	$	420,756.78	$	123,415,946.67
8/15/2028	$	1,061,362.98	$	500.00	$	1,060,862.98	$	642,277.23	$	418,585.75	$	122,773,669.44
9/15/2028	$	1,061,362.98	$	500.00	$	1,060,862.98	$	644,455.62	$	416,407.36	$	122,129,213.82
10/15/2028	$	1,061,362.98	$	500.00	$	1,060,862.98	$	646,641.40	$	414,221.58	$	121,482,572.42
11/15/2028	$	1,061,362.98	$	500.00	$	1,060,862.98	$	648,834.59	$	412,028.39	$	120,833,737.83
12/15/2028	$	1,061,362.98	$	500.00	$	1,060,862.98	$	651,035.22	$	409,827.76	$	120,182,702.61
1/15/2029	$	1,061,362.98	$	500.00	$	1,060,862.98	$	653,243.31	$	407,619.67	$	119,529,459.30

Exhibit 10.3



Payment Date	Rent		Trustee Fee		Payment		Principal		Interest		O/S Principal Balance
2/15/2029	$	1,061,362.98	$	500.00	$	1,060,862.98	$	655,458.90	$	405,404.08	$	118,874,000.40
3/15/2029	$	1,061,362.98	$	500.00	$	1,060,862.98	$	657,682.00	$	403,180.98	$	118,216,318.40
4/15/2029	$	1,061,362.98	$	500.00	$	1,060,862.98	$	659,912.63	$	400,950.35	$	117,556,405.77
5/15/2029	$	1,061,362.98	$	500.00	$	1,060,862.98	$	662,150.84	$	398,712.14	$	116,894,254.93
6/15/2029	$	1,085,243.65	$	500.00	$	1,084,743.65	$	688,277.30	$	396,466.35	$	116,205,977.63
7/15/2029	$	1,085,243.65	$	500.00	$	1,084,743.65	$	690,611.71	$	394,131.94	$	115,515,365.92
8/15/2029	$	1,085,243.65	$	500.00	$	1,084,743.65	$	692,954.03	$	391,789.62	$	114,822,411.89
9/15/2029	$	1,085,243.65	$	500.00	$	1,084,743.65	$	695,304.30	$	389,439.35	$	114,127,107.59
10/15/2029	$	1,085,243.65	$	500.00	$	1,084,743.65	$	697,662.54	$	387,081.11	$	113,429,445.05
11/15/2029	$	1,085,243.65	$	500.00	$	1,084,743.65	$	700,028.78	$	384,714.87	$	112,729,416.27
12/15/2029	$	1,085,243.65	$	500.00	$	1,084,743.65	$	702,403.05	$	382,340.60	$	112,027,013.22
1/15/2030	$	1,085,243.65	$	500.00	$	1,084,743.65	$	704,785.36	$	379,958.29	$	111,322,227.86
2/15/2030	$	1,085,243.65	$	500.00	$	1,084,743.65	$	707,175.76	$	377,567.89	$	110,615,052.10
3/15/2030	$	1,085,243.65	$	500.00	$	1,084,743.65	$	709,574.26	$	375,169.39	$	109,905,477.84
4/15/2030	$	1,085,243.65	$	500.00	$	1,084,743.65	$	711,980.90	$	372,762.75	$	109,193,496.94
5/15/2030	$	1,085,243.65	$	500.00	$	1,084,743.65	$	714,395.71	$	370,347.94	$	108,479,101.23
6/15/2030	$	1,109,661.63	$	500.00	$	1,109,161.63	$	741,236.68	$	367,924.95	$	107,737,864.55
7/15/2030	$	1,109,661.63	$	500.00	$	1,109,161.63	$	743,750.71	$	365,410.92	$	106,994,113.84
8/15/2030	$	1,109,661.63	$	500.00	$	1,109,161.63	$	746,273.26	$	362,888.37	$	106,247,840.58
9/15/2030	$	1,109,661.63	$	500.00	$	1,109,161.63	$	748,804.37	$	360,357.26	$	105,499,036.21
10/15/2030	$	1,109,661.63	$	500.00	$	1,109,161.63	$	751,344.07	$	357,817.56	$	104,747,692.14
11/15/2030	$	1,109,661.63	$	500.00	$	1,109,161.63	$	753,892.37	$	355,269.26	$	103,993,799.77
12/15/2030	$	1,109,661.63	$	500.00	$	1,109,161.63	$	756,449.33	$	352,712.30	$	103,237,350.44
1/15/2031	$	1,109,661.63	$	500.00	$	1,109,161.63	$	759,014.95	$	350,146.68	$	102,478,335.49
2/15/2031	$	1,109,661.63	$	500.00	$	1,109,161.63	$	761,589.28	$	347,572.35	$	101,716,746.21
3/15/2031	$	1,109,661.63	$	500.00	$	1,109,161.63	$	764,172.33	$	344,989.30	$	100,952,573.88
4/15/2031	$	1,109,661.63	$	500.00	$	1,109,161.63	$	766,764.15	$	342,397.48	$	100,185,809.73
5/15/2031	$	1,109,661.63	$	500.00	$	1,109,161.63	$	769,364.76	$	339,796.87	$	99,416,444.97
6/15/2031	$	1,134,629.02	$	500.00	$	1,134,129.02	$	796,941.58	$	337,187.44	$	98,619,503.39
7/15/2031	$	1,134,629.02	$	500.00	$	1,134,129.02	$	799,644.54	$	334,484.48	$	97,819,858.85
8/15/2031	$	1,134,629.02	$	500.00	$	1,134,129.02	$	802,356.67	$	331,772.35	$	97,017,502.18
9/15/2031	$	1,134,629.02	$	500.00	$	1,134,129.02	$	805,077.99	$	329,051.03	$	96,212,424.19
10/15/2031	$	1,134,629.02	$	500.00	$	1,134,129.02	$	807,808.55	$	326,320.47	$	95,404,615.64
11/15/2031	$	1,134,629.02	$	500.00	$	1,134,129.02	$	810,548.37	$	323,580.65	$	94,594,067.27
12/15/2031	$	1,134,629.02	$	500.00	$	1,134,129.02	$	813,297.48	$	320,831.54	$	93,780,769.79
1/15/2032	$	1,134,629.02	$	500.00	$	1,134,129.02	$	816,055.91	$	318,073.11	$	92,964,713.88
2/15/2032	$	1,134,629.02	$	500.00	$	1,134,129.02	$	818,823.70	$	315,305.32	$	92,145,890.18
3/15/2032	$	1,134,629.02	$	500.00	$	1,134,129.02	$	821,600.88	$	312,528.14	$	91,324,289.30
4/15/2032	$	1,134,629.02	$	500.00	$	1,134,129.02	$	824,387.47	$	309,741.55	$	90,499,901.83
5/15/2032	$	1,134,629.02	$	500.00	$	1,134,129.02	$	827,183.52	$	306,945.50	$	89,672,718.31
6/15/2032	$	1,160,158.17	$	500.00	$	1,159,658.17	$	855,518.20	$	304,139.97	$	88,817,200.11
7/15/2032	$	1,160,158.17	$	500.00	$	1,159,658.17	$	858,419.83	$	301,238.34	$	87,958,780.28
8/15/2032	$	1,160,158.17	$	500.00	$	1,159,658.17	$	861,331.31	$	298,326.86	$	87,097,448.97
9/15/2032	$	1,160,158.17	$	500.00	$	1,159,658.17	$	864,252.66	$	295,405.51	$	86,233,196.31

Exhibit 10.3



Payment Date	Rent		Trustee Fee		Payment		Principal		Interest		O/S Principal Balance
10/15/2032	$	1,160,158.17	$	500.00	$	1,159,658.17	$	867,183.91	$	292,474.26	$	85,366,012.40
11/15/2032	$	1,160,158.17	$	500.00	$	1,159,658.17	$	870,125.11	$	289,533.06	$	84,495,887.29
12/15/2032	$	1,160,158.17	$	500.00	$	1,159,658.17	$	873,076.29	$	286,581.88	$	83,622,811.00
1/15/2033	$	1,160,158.17	$	500.00	$	1,159,658.17	$	876,037.47	$	283,620.70	$	82,746,773.53
2/15/2033	$	1,160,158.17	$	500.00	$	1,159,658.17	$	879,008.70	$	280,649.47	$	81,867,764.83
3/15/2033	$	1,160,158.17	$	500.00	$	1,159,658.17	$	881,990.00	$	277,668.17	$	80,985,774.83
4/15/2033	$	1,160,158.17	$	500.00	$	1,159,658.17	$	884,981.42	$	274,676.75	$	80,100,793.41
5/15/2033	$	1,160,158.17	$	500.00	$	1,159,658.17	$	887,982.98	$	271,675.19	$	79,212,810.43
6/15/2033	$	1,186,261.73	$	500.00	$	1,185,761.73	$	917,098.28	$	268,663.45	$	78,295,712.15
7/15/2033	$	1,186,261.73	$	500.00	$	1,185,761.73	$	920,208.77	$	265,552.96	$	77,375,503.38
8/15/2033	$	1,186,261.73	$	500.00	$	1,185,761.73	$	923,329.81	$	262,431.92	$	76,452,173.57
9/15/2033	$	1,186,261.73	$	500.00	$	1,185,761.73	$	926,461.44	$	259,300.29	$	75,525,712.13
10/15/2033	$	1,186,261.73	$	500.00	$	1,185,761.73	$	929,603.69	$	256,158.04	$	74,596,108.44
11/15/2033	$	1,186,261.73	$	500.00	$	1,185,761.73	$	932,756.60	$	253,005.13	$	73,663,351.84
12/15/2033	$	1,186,261.73	$	500.00	$	1,185,761.73	$	935,920.20	$	249,841.53	$	72,727,431.64
1/15/2034	$	1,186,261.73	$	500.00	$	1,185,761.73	$	939,094.52	$	246,667.21	$	71,788,337.12
2/15/2034	$	1,186,261.73	$	500.00	$	1,185,761.73	$	942,279.62	$	243,482.11	$	70,846,057.50
3/15/2034	$	1,186,261.73	$	500.00	$	1,185,761.73	$	945,475.52	$	240,286.21	$	69,900,581.98
4/15/2034	$	1,186,261.73	$	500.00	$	1,185,761.73	$	948,682.26	$	237,079.47	$	68,951,899.72
5/15/2034	$	1,186,261.73	$	500.00	$	1,185,761.73	$	951,899.87	$	233,861.86	$	67,999,999.85

Annex II

Defeasance Rider

The terms and conditions of this Defeasance Rider are hereby incorporated into the Note. Capitalized terms not otherwise defined herein shall have the meanings as assigned thereto in the Deed of Trust.

This Note may be defeased in whole but not in part at any time prior to the Maturity Date, but only on the tenth day of the month after 30 days’ prior written notice to the holder of the Note (the “Payee” ), subject to the following:

(A) At any time, provided no Event of Default exists under the other Operative Agreements, the Company may obtain the release of the Granted Property from the lien of the Security Instrument upon the satisfaction of the following conditions precedent (such release in accordance with the terms hereof is hereinafter referred to as the “Defeasance” ):

(i) not less than thirty (30) days’ prior written notice to Payee specifying a regularly scheduled monthly payment date (the “Release Date” ) on which the Defeasance Deposit (hereinafter defined) is to be made;

(ii) the payment to Payee of interest accrued and unpaid on the principal balance of this Note to and including the Release Date;

(iii) the payment to Payee of all other sums, not including scheduled interest or principal payments, then due and owing under the other Operative Agreements the amount of which Payee shall notify the Company of not less than five days prior to the Release Date;

(iv) the payment to Payee of the Defeasance Deposit; and

(v) the delivery to Payee of:

Exhibit 10.3

(a) a security agreement, in form and substance satisfactory to Payee, creating a first priority lien on the Defeasance Deposit and the U.S. Obligations (hereinafter defined) purchased or to be purchased on behalf of the Company with the Defeasance Deposit in accordance with this provision of this paragraph (the “Security Agreement” );

(b) a release of the Granted Property from the lien of the Security Instrument (for execution by Payee or release of any UCC related financing statements or other Operative Agreements (for execution by Payee)) in a form appropriate for the jurisdiction in which the Granted Property is located and such financing statements are filed, which Payee agrees to execute, notarize and deliver upon the Release Date upon the Company’s satisfaction of the requirements of this Defeasance Rider;

(c) an officer’s certificate of the Company certifying that the requirements set forth in this subparagraph (A) have been satisfied;

(d) an opinion of counsel for the Company in form satisfactory to Payee stating, among other things, that (1) Payee has a perfected first priority security interest in the Defeasance Deposit and/or the U.S. Obligations purchased by Payee on behalf of the Company with the Defeasance Deposit, (2) the Security Agreement is enforceable against the Company in accordance with its terms and (3) the Defeasance is not a fraudulent conveyance and will not be subject to related bankruptcy risks;

(e) such other certificates, documents or instruments as Payee may reasonably request; and

(f) payment to Payee by the Company of all costs and expenses incurred by Payee in connection with the Defeasance hereunder including, but not limited to, reasonable fees of attorney and accountants.

In connection with the conditions set forth in subparagraph (A)(v) above, the Company hereby appoints Payee as its agent and attorney-in-fact for the purpose of using the Defeasance Deposit to purchase U.S. Obligations which provide payments on or prior to, but as close as possible to, all successive scheduled monthly payment dates after the Release Date upon which interest and principal payments are required under this Note (including the amounts due on the Maturity Date) and in amounts equal to the scheduled payments due on such dates and on the Maturity Date under this Note (the “Scheduled Defeasance Payments” ). The Company, pursuant to an agreement to be entered into and subject to Payee approval, shall authorize and direct that the payments received from the U.S. Obligations may be made directly to Payee and applied to satisfy the obligations of the Company under this Note.

(B) Upon compliance with the requirements of this Defeasance Rider, the Granted Property shall be released from the lien of the Security Instrument and all other Operative Agreements, any guarantor or indemnitor for the loan evidenced by the Note shall be released from any liability accruing after the date of compliance with this Defeasance Rider, and the pledged U.S. Obligations shall be the sole source of collateral securing this Note. Any portion of the Defeasance Deposit in excess of the amount necessary to purchase the U.S. Obligations required by subparagraph (A) above and satisfy the Company’s obligations under this paragraph shall be remitted to the Company with the release of the Granted Property from the lien of the Security Instrument. In connection with such release, the Company shall establish, or designate a successor entity (the “Successor Company” ), subject to the approval of Payee, and the Company shall transfer and assign all obligations, rights and duties under and to this Note together with the pledged U.S. Obligations to such Successor Company. The obligation of the Company, subject to the approval of Payee, to establish or designate a Successor Company shall be automatically deemed to be assumed by a transferee in the event of any Transfer (as defined in the Security Instrument) of this Note and the other Operative Agreements and the Company shall be relieved of its obligations thereunder and under the other Operative Agreements. The Company shall pay $1,000 to any such Successor Company as consideration for assuming the obligations under this Note and the Security Agreement. Notwithstanding anything in the other Operative Agreements to the contrary, no other assumption fee shall be payable upon a transfer of this Note in accordance with this paragraph.

Exhibit 10.3

(i) the term “Defeasance Deposit” shall mean an amount which Payee shall determine (in reliance upon a verification report delivered by a nationally recognized independent certified public accountant or firm of nationally recognized certified public accountants) is sufficient to pay the Scheduled Defeasance Payments, any costs and expenses (including the reasonable fee and expenses of such accountant or firm of accountants) incurred or to be incurred in the purchase of U.S. Obligations necessary to meet the Scheduled Defeasance Payments and any revenue, documentary stamp or intangible taxes or any other tax or charge due in connection with the transfer of this Note or otherwise required to accomplish the agreements of this Defeasance Rider, which such taxes Payee shall cause to be paid to the appropriate taxing authority on the Release Date; and

(ii) the term “U.S. Obligations” shall mean direct non-callable full faith and credit obligations of the United States of America.

[Remainder of page intentionally blank]

Exhibit 10.4

DEED OF TRUST, SECURITY AGREEMENT, ASSIGNMENT OF LEASES AND RENTS

AND FIXTURE FILING STATEMENT

Dated as of March 12, 2015

From

TRT LeaseCo, LLC

(the “Grantor” )

MALCOLM MORRIS, as Deed of Trust Trustee

(the “Trustee” )

for the benefit of

WELLS FARGO BANK NORTHWEST, N.A., as trustee

(the “Beneficiary” )


BNSF Railway Company	This instrument was


2264 Texas Highway 146	prepared by and when recorded


City of Dayton	return to:


County of Liberty, Texas	James R. Nelson, Esq.

Chapman and Cutler LLP

111 West Monroe Street

Chicago, Illinois 60603

Exhibit 10.4

Table of Contents



SECTION HEADING		PAGE

Parties		1

Recitals		1

Granting Clauses		3

Section 1. Definitions		9

SECTION 2. GENERAL CONVENANTS AND WARRANTIES		17
Section 2.1. Office for Notices		17
Section 2.3. Negative Covenants		17
Section 2.4. Mergers and Consolidations		17
Section 2.5. Financial Information and Reports		23
Section 2.6. Notice of Default		23
Section 2.7. Mortgage Title Insurance Policy		24
Section 2.8. Payment of Certain Taxes		24
Section 2.9. Ownership of Granted Property		24
Section 2.10. Further Assurances		24
Section 2.11. Payment of Principal and Interest		24
Section 2.12. Prepayment of Note		25
Section 2.13. Method and Place of Payment of Principal and Interest		25
Section 2.14. Maintenance of Granted Property, Other Liens, Compliance
with Laws, Etc		26
Section 2.15. Insurance		28
Section 2.16. Payment of Taxes and Other Charges		30
Section 2.17. Limitation on Liens		31
Section 2.18. Assignment; Obligations and Terms Respecting the Lease, the
Other Leases and the Lease Guaranties		32
Section 2.19. Advances		36
Section 2.20. Recordation		36
Section 2.21. After-Acquired Property		37
Section 2.22. Environmental Indemnity		37
Section 2.23. Separate Identity		37
Section 2.24. General Indemnity		38
Section 2.25. No Forfeiture		39

SECTION 3. POSSESSION, USE AND RELEASE OF PROPERTY		40
Section 3.1. The Grantor’s Right of Possession		40
Section 3.2. Release of Granted Property - Event of Loss and Prepayment of
Note		40
Section 3.3. Eminent Domain		41

Exhibit 10.4





SECTION 4. APPLICATION OF INSURANCE AND CERTAIN OTHER MONEYS RECEIVED
BY THE BENEFICIARY		41
Section 4.1. Insurance Proceeds and Condemnation Awards		41
Section 4.2. Title Insurance		43
Section 4.3. Investment of Insurance Proceeds and Condemnation Awards
or Compensation		43
Section 4.4. Application If Event of Default Exists		44

SECTION 5. DEFAULTS AND REMEDIES THEREFOR		44
Section 5.1. Events of Default		44
Section 5.2. Remedies		46
Section 5.3. Application of Proceeds		49
Section 5.4. Waiver of Extension, Appraisement and Stay Laws		50
Section 5.5. Costs and Expenses of Foreclosure		50
Section 5.6. Delay or Omission Not a Waiver		51
Section 5.7. Restoration of Positions		51
Section 5.8. Note to Become Due upon Sale		51

SECTION 6. MISCELLANEOUS		51
Section 6.1. Successors and Assigns		51
Section 6.2. Severability		51
Section 6.3. Addresses for Notices and Demands		51
Section 6.4. Headings and Table of Contents		52
Section 6.5. Release of Deed of Trust		52
Section 6.6. Counterparts		52
Section 6.7. Successor Trustee		52
Section 6.8. Governing Law		53
Section 6.9. Time		53
Section 6.10. Limitations of Liability		53
Section 6.11. Expenses, Stamp Tax Indemnity		53
Section 6.12. Cooperation		54
Section 6.13. No Merger of Estates		54
Section 6.14. NAIC Filing		54
Section 6.15. Commitment		55
Section 6.16. Usury Savings Clause		55
Section 6.17. Certain Prohibited Amendments		55

SECTION 7. ACCEPTANCE OF TRUST; POWERS AND DUTIES OF TRUSTEE		55

SECTION 7. DEED OF TRUST PROVISIONS		56
Section 7.1. Concerning The Trustee		56

Exhibit 10.4




Section 7.2. Trustee’s Fees		56
Section 7.3. Certain Rights		56
Section 7.4. Retention of Money		56
Section 7.5. Perfection of Appointment		57
Section 7.6. Succession Instruments		57
		57
Section 8. State Specific Provisions		58

Signature Page		59

ATTACHMENTS TO THE DEED OF TRUST:

Exhibit A - Legal Description of Real Property

ADDENDUM A - State Specific Provisions

Exhibit 10.4

DEED OF TRUST, SECURITY AGREEMENT, ASSIGNMENT OF LEASES AND RENTS AND FIXTURE FILING STATEMENT dated as of March 12, 2015 (the “Deed of Trust” ), from TRT LEASECO, LLC, a limited liability company organized under the laws of the State of Delaware (the “Grantor” ), having its principal office at c/o BNSF-Delpres Investments, Ltd., 100 Sheppard Avenue East, Suite 502, Toronto, ON M2N 6N5, Canada, to Malcolm Morris, as Deed of Trust Trustee (the “Trustee” ) whose address is 1980 Post Oak Boulevard, Suite 800, Houston, Texas 77056, for the benefit of Wells Fargo Bank Northwest, N.A., as trustee, as trustee under that certain Pass-Through Trust Agreement and Declaration of Trust dated as of March 12, 2015 (the “Beneficiary” ), whose address is 299 S. Main Street, 5th Floor, MAC: U1228-051, Salt Lake City, Utah 84111.

This Deed of Trust is also a Security Agreement and financing statement under the Uniform Commercial Code of the State of Texas and in compliance therewith the following information is set forth:

1. The names and addresses of the Debtor and Secured Party are:

Debtor:

TRT LeaseCo, LLC

c/o BNSF-Delpres Investments, Ltd.

100 Sheppard Avenue East, Suite 502

Toronto, ON M2N 6N5

Canada

Attention: Larry Krauss

Secured Party:

Wells Fargo Bank Northwest, N.A., as trustee

299 S. Main Street, 5th Floor

MAC: U1228-051

Salt Lake City, Utah 84111

Attention: Corporate Trust Lease Group

2. The property covered by this Security Agreement and financing statement is described in the Granting Clauses hereof.

3. Some or all of the fixtures, equipment and other property described herein are or may become fixtures.

4. The Debtor is the record owner of the real estate described in Exhibit A attached hereto and made a part hereof.

RECITALS

A. The Grantor and the Beneficiary have executed and delivered the Note Purchase Agreement dated as of March 12, 2015 (as amended, supplemented, restated or otherwise modified, the “Note Purchase Agreement” ) providing for the commitment of the Beneficiary to purchase the 4.07% Senior Secured Note, due May 15, 2034 (the “Note” ) of the Grantor in the principal amount of $182,666,908.56, to be dated the date of issue, expressed to bear interest from the date of issue until maturity at the rate of 4.07% per annum and will amortize as set forth in the amortization schedule attached thereto. Interest on the Note will be computed on the basis of a 360-day year of twelve 30-day months.

B. The Grantor has leased the Property described in Granting Clause First below to BNSF Railway Company, a corporation organized under the laws of the State of Delaware (the “Tenant” ), under and pursuant to the terms of that certain Lease dated June 1, 2014 (such Lease as it may heretofore or hereafter be amended, supplemented or modified and any replacement thereof is herein referred to as the “Lease” ) and is assigning all of its right, title and interest in and to the Lease to the Beneficiary pursuant to this Deed of Trust and that certain Assignment of Leases and Rents dated as of March 12, 2015 from the Grantor to the Beneficiary (the “Assignment of Leases and Rents” ).

C. The Note, as may be amended from time to time, and all principal thereof, premium, if any, and interest thereon and all additional amounts and other sums at any time due and owing from, and required to be paid by the Grantor under the terms of the Note, the Note Purchase Agreement, this Deed of Trust and the other Operative Agreements (as defined herein) are collectively hereinafter sometimes referred to as the “Indebtedness Hereby Secured.”

Exhibit 10.4

D. The Grantor is duly authorized under all applicable provisions of law and its Organizational Documents (as defined herein) to issue the Note, to execute and deliver this Deed of Trust and to mortgage, convey and assign the Granted Property (as defined herein) to the Beneficiary as security for the Indebtedness Hereby Secured and all action and all consents, approvals and other authorizations and all other acts and things necessary to make this Deed of Trust the valid, binding and legal instrument for the security of the Indebtedness Hereby Secured have been done and performed.

NOW, THEREFORE, THIS DEED OF TRUST WITNESSETH: That the Grantor, in consideration of the premises, the purchase and acceptance of the Note by the Beneficiary and of the sum of Ten Dollars received by the Grantor from the Beneficiary and other good and valuable consideration, receipt whereof is hereby acknowledged, and in order to secure the payment of the principal of, premium, if any, and interest on the Note according to its tenor and effect, and to secure the payment of all other Indebtedness Hereby Secured and the performance and observance of all the covenants, agreements and conditions contained in or incorporated by reference into the Note, this Deed of Trust, the Note Purchase Agreement or the other Operative Agreements, the Grantor does hereby grant, warrant, mortgage, assign, pledge, sell, demise, bargain, convey, transfer, set over and hypothecate unto the Trustee for the benefit of the Beneficiary, its successors and assigns, forever, With Power of Sale, to the extent permitted by law, and grants to the Trustee for the benefit of the Beneficiary, its successors and assigns, forever, a security interest in and to all and singular the following described properties, rights, interest and privileges and all of the Grantor’s estate, right, title and interest therein, thereto and thereunder (all of which properties, rights, interests and privileges hereby mortgaged, assigned, pledged and hypothecated or intended so to be are hereinafter collectively referred to as the “Granted Property” ):

GRANTING CLAUSE FIRST

THE PROPERTY

The parcel of land in County of Liberty, City of Dayton, State of Texas, described in Exhibit A attached hereto and made a part hereof, together with the entire interest of the Grantor in and to all buildings, structures, improvements and appurtenances now standing, or at any time hereafter constructed or placed, upon such land, including all right, title and interest of the Grantor, if any, in and to all building material, building equipment and fixtures of every kind and nature whatsoever on said land or in any building, structure or improvement now or hereafter standing on said land which are classified as fixtures under applicable law and which are used in connection with the operation, maintenance or protection of said buildings, structures and improvements as such (including, without limitation, all boilers, air conditioning, ventilating, plumbing, heating, lighting and electrical systems and apparatus, all communications equipment and intercom systems and apparatus, all sprinkler equipment and apparatus and all elevators and escalators) and the reversion or reversions, remainder or remainders, in and to said land, and together with the entire interest of the Grantor in and to all and singular the tenements, hereditaments, easements, rights of way, rights, privileges and appurtenances to said land, belonging or in anywise appertaining thereto, including, without limitation, the entire right, title and interest of the Grantor in, to and under any streets, ways, alleys, gores or strips of land adjoining said land, and all claims or demands whatsoever of the Grantor either in law or in equity, in possession or expectancy, of, in and to said land, it being the intention of the parties hereto that, so far as may be permitted by law, all property of the character hereinabove described, which is now owned or is hereafter acquired by the Grantor and is affixed or attached or annexed to said land, shall be and remain or become and constitute a portion of said land and the security covered by and subject to the lien of this Deed of Trust, together with all accessions, parts and appurtenances appertaining or attached thereto and all substitutions, renewals or replacements of and additions, improvements, accessions and accumulations to any and all thereof, and together with all rents, income, revenues, awards, issues and profits thereof, and the present and continuing right to make claim for, collect, receive and receipt for any and all of such rents, income, revenues, awards, issues and profits arising therefrom or in connection therewith (collectively, the “Property” ).

GRANTING CLAUSE SECOND

THE LEASE, THE OTHER LEASES, TENTS AND LEASE GUARANTIES

The Lease, the Other Leases (defined below), if any, and all of the Grantor’s estate, right, title, interest, claim and demand as landlord in, to and under the Lease and the Other Leases, including all extensions and renewals of the term thereof, and all existing or future amendments, supplements or modifications of the Lease and the Other Leases (and to any short memorandum form of the Lease and the Other Leases executed for recording purposes), together with all rights, powers, privileges, options and other benefits of the Grantor, if any, in, to and under the Lease Guaranties (as defined herein), if any, and all rights, powers, privileges, options and other benefits of the Grantor as landlord under the Lease and the Other Leases, including, without limitation, (a) the immediate and continuing right (whether or not an Event of Default under this Deed of Trust shall have occurred and be

Exhibit 10.4

continuing) to receive and collect all rents (whether as fixed rent, basic rent, percentage rent, additional rent or otherwise), income, revenues, issues, profits, insurance proceeds, condemnation awards, bankruptcy claims, liquidated damages, purchase price proceeds and other payments, tenders and security payable to or receivable by the landlord under the Lease and the Other Leases; (b) if the Tenant exercises any right, or shall be required, to purchase the Granted Property or the landlord’s interest therein, the right and power (such power and right being coupled with an interest) to execute and deliver as agent and attorney‑in‑fact of the landlord under the Lease and the Other Leases, an appropriate deed or other instruments of transfer necessary or appropriate for the conveyance and transfer to the purchaser of the Granted Property or the portion thereof being so purchased, and all interest of the landlord therein and to perform in the name and for and on behalf of the landlord, as such agent and attorney‑in‑fact, any and all other necessary or appropriate acts with respect to any such purchase, conveyance and transfer; (c) the right to make all waivers, consents and agreements; (d) the right to give and receive copies of all notices and other instruments or communications; (e) the right to take such action upon the occurrence of an event of default or default under the Lease, the Other Leases and the Lease Guaranties, including the commencement, conduct and consummation of legal, administrative or other proceedings, as shall be permitted by the Lease, the Other Leases, the Lease Guaranties, or by law; and (f) the right to do any and all other things whatsoever which the Grantor or any landlord is or may be entitled to do under the Lease, the Other Leases and the Lease Guaranties, or by law.

GRANTING CLAUSE THIRD

CONDEMNATION AWARDS

All of the right, title and interest of the Grantor in and to any award or awards or settlements or payments heretofore made or hereafter to be made by any municipal, county, state or federal authorities to the present or any subsequent owners of the Granted Property, including without limitation any award or awards, or settlements or payments, hereafter made resulting from (i) condemnation proceedings or the taking of the Granted Property, or any part thereof, under the power of eminent domain; or (ii) the alteration of grade or the location or the discontinuance of any street adjoining the Granted Property or any portion thereof, or (iii) any other injury to or decrease in value of the Granted Property; and the Grantor hereby agrees to execute and deliver from time to time such further instruments as may be requested by the Beneficiary to confirm such assignment to Beneficiary of any such award, damage, payment or other compensation.

GRANTING CLAUSE FOURTH

PERSONAL PROPERTY

All tangible and intangible personal property now owned or at any time hereafter acquired by the Grantor of every nature and description, and used in any way in connection with the Granted Property, or any other portion of the same, including, without limitation, all inventory; goods; materials; supplies; equipment; furnishings; fixtures; accounts; accounts receivable; chattel paper; documents; instruments; investment property; money; bank accounts (including, without limitation, the Escrow Reserves (as defined in the Escrow and Servicing Agreement (as defined herein)) and any accounts or reserves held by Beneficiary or by the Escrow Agent (as defined herein) under the terms of the Escrow and Servicing Agreement); deposit accounts; security deposits; claims to rebates, refunds or abatements of real estate taxes or any other taxes; contract rights, plans and specifications; permits, licenses and general intangibles; the rights of the Grantor under contracts, with respect to the Granted Property or any portion thereof; signs, brochures, advertising and good will; and all roof warranties and all other construction warranties and guaranties whether for materials, workmanship or services.

GRANTING CLAUSE FIFTH

OTHER AND AFTER-ACQUIRED PROPERTY

Any and all moneys and other property (including each amendment or supplement to any and all instruments included in the Granted Property) which may from time to time, by delivery to the Trustee or the Beneficiary or by any instrument, including this Deed of Trust, be subjected to the lien hereof by the Grantor or by anyone on the behalf of the Grantor or with the consent of the Grantor, or which may come into the possession or be subject to the control of the Trustee or the Beneficiary pursuant to this Deed of Trust, or pursuant to any instrument included in the Granted Property, it being the intention of the Grantor and the Beneficiary and it being hereby agreed by them that all property hereafter acquired by the Grantor and required to be subjected to the lien of this Deed of Trust or intended so to be shall forthwith upon the acquisition thereof by the Grantor be as fully embraced

Exhibit 10.4

within the lien of this Deed of Trust as if such property were now owned by the Grantor and were specifically described in this Deed of Trust and granted hereby or pursuant hereto.

GRANTING CLAUSE SIXTH

PROCEEDS

All proceeds of the conversion, voluntary or involuntary, of any of the foregoing into cash or other liquidated claims, including, without limitation, all proceeds of insurance and condemnation awards and payments and all products, additions, accessions, substitutions and replacements of any of the foregoing.

Subject, however, as to all property or rights in property at any time subject to the lien hereof (whether now owned or hereafter acquired), to the following:

(a) The agreement of the parties hereto that any and all improvements, trade fixtures, signs, furniture, furnishings, equipment, machinery or other tangible or intangible personal property located on the Granted Property not owned by the Grantor, whether or not classified as fixtures under applicable law, are expressly excluded from the lien and security interest created by this Deed of Trust, and that the same shall in no instance be deemed to be encompassed within the term “Granted Property” ;

(b) The Permitted Encumbrances, as defined in Section 1 hereof; and

TO HAVE AND TO HOLD the Granted Property unto the Trustee for the benefit of the Beneficiary and its successors and assigns, in fee simple title forever, with the purpose of securing performance of each agreement, covenant and warranty of the Grantor contained in the Operative Agreements and payment of all Indebtedness Hereby Secured.

IN TRUST, NEVERTHELESS, WITH POWER OF SALE (to the extent permitted by law), upon the terms and trusts herein set forth for the benefit and security of all present and future holders of the Indebtedness Hereby Secured in accordance with its terms and all other sums payable hereunder or under the Note, and for the performance and observance of the Note and this Deed of Trust, all as herein set forth.

PROVIDED, NEVERTHELESS, and these presents are upon the express condition that if the Grantor performs the covenants herein contained and pays to the Beneficiary, its successors or assigns, the full amount of all Indebtedness Hereby Secured, the estate, right and interest of the Beneficiary in the property hereby conveyed shall cease and this Deed of Trust shall become null and void, but otherwise to remain in full force and effect.

It is agreed and understood by the parties hereto that:

1. This Deed of Trust is intended to and shall constitute security for the entire Indebtedness Hereby Secured.

2. Any part of the security herein described, and any security described in any other mortgage, assignment of lease or other instrument now or hereafter given to secure the indebtedness which is secured by this Deed of Trust, may be released by the Beneficiary without affecting the lien hereof on the remainder.

3. The Grantor for itself and all who may claim through or under it waives any and all right to have the property and estates comprising the Granted Property marshalled upon any foreclosure of the lien hereof, or to have the Granted Property hereunder and the property covered by any other mortgage or assignment of lease securing the Note marshalled upon any foreclosure of any of said mortgages or assignments of leases, and agrees that any court having jurisdiction to foreclose such lien may order the Granted Property sold as an entirety.

4. Upon the occurrence of an Event of Default hereunder, the Beneficiary has, among other things, the right to foreclose on the Granted Property and dispose of the same. To the extent permitted by law, the Beneficiary’s

Exhibit 10.4

deed or other instrument of conveyance, transfer or release (which, if permitted by law, may be in the name of the Beneficiary or as attorney for the Grantor and the Beneficiary hereby is irrevocably appointed) shall be effective to convey and transfer to the grantee an indefeasible title to the property covered thereby, discharged of all rights of redemption by the Grantor or any person claiming under it, and to bar forever all claims by the Grantor or the said Beneficiary to the property covered thereby and no grantee from the Beneficiary shall be under any duty to inquire as to the authority of the Beneficiary to execute the same, or to see to the application of the purchase money.

5. The assignment made under Granting Clause Second and Section 2.18 hereof is executed as a present, unconditional and absolute assignment and not merely as collateral security, and the execution and delivery of this Deed of Trust shall not in any way impair or diminish any obligations of the Grantor as landlord under the Lease nor impair, affect or modify any of the terms and conditions of the Note or the Note Purchase Agreement, nor shall any of such obligations be imposed upon the Trustee or the Beneficiary, including but not limited to collecting rentals or enforcing performance by the Tenant. Without limiting the generality of the foregoing, the Beneficiary shall not be obligated to perform or discharge, nor does the Beneficiary hereby undertake to perform or discharge, any obligation, duty or liability under the Lease, or under or by reason of this Deed of Trust; and it is further understood and agreed that this Deed of Trust shall not operate to place responsibility for the control, care, management or repair of the Granted Property upon the Beneficiary, nor for the carrying out of any of the terms and conditions of the Lease, nor shall it operate to make the Beneficiary responsible or liable for any waste committed on the Granted Property by the Tenant or any other parties, or for any dangerous or defective condition of the Granted Property, or for any negligence of the management, upkeep, or repair or control of the Granted Property resulting in loss or injury or death to any tenant, licensee, employee or stranger. The Beneficiary may, at its option, although it shall not be obligated to do so, after giving written notice to the Tenant and the Grantor, perform any Lease covenant for and on behalf of the Grantor and may recover any money advanced, for any such purpose from the Grantor on demand, with interest at the Default Rate (as defined herein) (or at the maximum rate permitted by applicable law, whichever is less) from date of advancement. Upon the payment of the principal of (and premium, if any) and all interest on the Note and of all other sums payable on the Note or under the Note Purchase Agreement or this Deed of Trust or any other Operative Agreement and the performance and observance of the provisions thereof, this Deed of Trust shall cease and terminate and all the estate, right, title, interest, claim and demand of the Grantor under the Lease in and to the above‑described assigned property shall revert to the Grantor under the Lease, and the Beneficiary shall at the request of the Grantor deliver to the Grantor an instrument cancelling the assignment of Lease set forth in this Deed of Trust and reassigning the above-described assigned property to the Grantor.

6. The Grantor does hereby irrevocably constitute and appoint the Beneficiary, its true and lawful attorney with full power of substitution, for it and in its name, place and stead, to ask, demand, collect, receive, receipt for, sue for, compound and give acceptance for any and all rents, income and other sums which are assigned under the Granting Clauses of this Deed of Trust with full power to sue for, settle, adjust or compromise any claim thereunder as surely as the Grantor could itself do and to endorse the name of the Grantor on all commercial paper given in payment or in part payment thereof, and in its discretion to file any claim or take any other action or proceedings either in its own name or in the name of the Grantor or otherwise, which the Beneficiary may deem necessary or appropriate to protect and preserve the right, title and interest of the Beneficiary in and to such rents and other sums and the security intended to be afforded by this Deed of Trust.


SECTION 1.	DEFINITIONS.

The following terms shall have the following meanings for all purposes of this Deed of Trust (any capitalized terms not otherwise defined herein shall have the meanings set forth therefor in the Note Purchase Agreement):

“Acceptable Rating Agency” shall mean a nationally recognized statistical rating organization that is also an Acceptable Rating Organization as recognized by the National Association of Insurance Commissioners for rating transactions of the type evidenced by the Operative Agreements, the Trust Agreement, the Trust Certificates and the Certificate Purchase Agreement (as defined in the Trust Agreement).

“ Active Rating Agency ” shall mean, at any time, the Acceptable Rating Agency that is then rating the Trust Certificates, which as of the Closing Date is Egan-Jones Ratings Company, Inc.

“Affiliate” of any specified Person, shall mean any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person, and any immediate family member of such specified Person and their Affiliates. For the purposes of this definition, “control” when used with respect to any specified Person means the power

Exhibit 10.4

to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.

“Assignment of Leases and Rents” is defined in Recital B hereto.

“Bankruptcy Claims” is defined in Section 2.18(a) of this Deed of Trust.

“Bankruptcy Code” is defined in Section 2.18(a) of this Deed of Trust.

“Beneficiary” shall mean Wells Fargo Bank Northwest, N.A., as trustee under that certain Pass‑Through Trust Agreement and Declaration of Trust dated as of March 12, 2015 and its successors and assigns.

“Closing Date” is defined in the Note Purchase Agreement.

“Competing Facility” means a rail car storage, intermodal or railroad facility within ten (10) miles of the Property.

“Default” shall mean any event which would constitute an Event of Default if any requirement in connection therewith for the giving of notice, or the lapse of time, or the happening of any further condition, event or action had been satisfied.

“ Default Rate” shall mean 6.07% per annum.

“Environmental Legal Requirement” shall mean any applicable local, state or federal law, statute, ordinance, rule or regulation relating to public health, safety or the environment, including, without limitation, relating to releases, discharges or emissions to air, water, land or groundwater, to the withdrawal or use of groundwater, to the use and handling of polychlorinated biphenyls or asbestos, to the disposal, transportation, treatment, storage or management of solid or hazardous wastes or to exposure to toxic or hazardous materials, to the handling, transportation, discharge or release of gaseous or liquid substances and any regulation, order, notice or demand issued pursuant to such law, statute, ordinance, rule or regulation, in each case applicable to the property of the Grantor and its Subsidiaries or the operation, construction or modification of any thereof, including without limitation the following: the Clean Air Act, the Federal Water Pollution Control Act, the Safe Drinking Water Act, the Toxic Substances Control Act, the Comprehensive Environmental Response Compensation and Liability Act as amended by the Superfund Amendments and Reauthorization Act of 1986, the Resource Conservation and Recovery Act as amended by the Solid and Hazardous Waste amendments of 1984, the Occupational Safety and Health Act, the Emergency Planning and Community Right‑to‑Know Act of 1986, the Hazardous Materials Transportation Act, the Solid Waste Disposal Act, all as amended, and any local, state or federal laws, statutes, ordinances, rules or regulations addressing similar matters, and any local, state or federal law, statute, ordinance, rule or regulation providing for financial responsibility for cleanup or other actions with respect to the release or threatened release of hazardous substances and any local, state or federal nuisance law, statute, ordinance, rule or regulation.

“Environmental Liability Insurer” shall mean the issuer of the Environmental Liability Policy, its successors and assigns.

“Environmental Liability Policy” is defined in Section 2.15(a)(iv).

“Escrow Agent” shall mean Wells Fargo Bank Northwest, N.A., as Escrow Agent under the Escrow and Servicing Agreement, and its successors and assigns.

“Escrow and Servicing Agreement” shall mean that certain Escrow and Servicing Agreement dated as of the date hereof among the Grantor, the Beneficiary and the Escrow Agent.

“Escrow Shortfall” is defined in the Escrow and Servicing Agreement.

“Event of Default” shall mean any events specified in Section 5.1 hereof including all notice, cure and grace periods.

“Event of Loss” with respect to the Granted Property shall mean any condemnation described in the Lease.

“Excepted Rights” shall mean the Grantor’s right prior to the occurrence of a Default or an Event of Default, but not to Beneficiary’s exclusion (1) to receive from the Tenant certificates and other documents and information that the Tenant is required

Exhibit 10.4

to give or furnish to the Grantor in accordance with the Lease, (2) to inspect the Granted Property and all records relating thereto, and (3) to demand performance or observance by the Tenant under the Lease of the applicable terms, conditions and agreements of the Lease as allowed by law, equity, or the Lease; provided, however, the Grantor may not (X) accelerate payment of Rent, or (Y) give any notice, sue or pursue any remedy or take any action under the Lease that might have the effect of (A) terminating the Lease, (B) dispossessing the Tenant, (C) declaring the Lease forfeited or terminated, (D) reducing any of the Tenant's obligations under the Lease, or (E) adversely affecting the rights of the Grantor as landlord under the Lease, the value of the Granted Property or the rights or interests of Beneficiary under the Operative Agreements, without in each instance Beneficiary’s prior written consent which Beneficiary may grant or withhold in its sole discretion.

“Existing Guarantors” shall mean the parties acting as guarantors or indemnitors under the Indemnity and Guaranty Agreement.

“Existing Owner” is defined in Section 2.3(h) of this Deed of Trust.

“Granted Property” is defined in the Recitals hereto.

“Grantor” shall mean not only TRT LeaseCo, LLC, but also its successors and assigns.

“Hazardous Material” shall mean any hazardous, toxic or harmful chemical, substance, waste, material, byproduct, pollutant, contaminant, compound or product, including without limitation, asbestos, polychlorinated byphenyls, petroleum products (including crude oil or any fraction thereof), flammable explosives, radioactive materials, mold, mildew, infectious substances or raw materials which include hazardous constituents and any other substance or material the exposure, use, disposal or handling of which is regulated by any Environmental Legal Requirement.

“Improvements” means all buildings, structures, fixtures, additions, enlargements, extensions, modifications, repairs, replacements, improvements and appurtenances now standing, or at any time hereafter constructed or placed, upon the land described on Exhibit A hereto.

“Indebtedness” of any Person shall mean, without duplication (a) all obligations of such Person for borrowed money or which have been incurred in connection with the acquisition of property or assets, (b) rents payable by such Person under all leases (whether or not capitalized on the books of such Person in accordance with generally accepted accounting principles) having a fixed term of one year or more from the original date or which are renewable or extendible by the lessee for a period or periods aggregating one year or more from the original date, (c) all indebtedness, obligations and liabilities secured by any lien existing on property owned by such Person subject to such lien, whether or not such indebtedness, obligations or liabilities have been assumed, and (d) all guarantees (whether by discount or otherwise), endorsements (other than for collection or deposit in the ordinary course of business) and other contingent obligations to purchase, or otherwise acquire, or become liable upon or in respect of, the indebtedness, obligations or liabilities of any Person or other entity whether or not reflected in the balance sheet of such Person.

“Indebtedness Hereby Secured” is defined in Recital C hereto.

“Indemnified Liabilities” is defined in Section 2.24 of this Deed of Trust.

“Indemnity and Guaranty Agreement” shall mean that certain Indemnity and Guaranty Agreement dated as of March 12, 2015 from the Existing Guarantors in favor of the Beneficiary.

“Investment Grade” means a long term debt rating of Baa3 or better from Moody’s, BBB- or better from S&P, and BBB low or better from DBRS or any equivalent rating from another NRSRO.

“Investment Grade Rating” means a long term debt rating on the Note that is Investment Grade from an NRSRO. For purposes of determining whether the Grantor has obtained an Investment Grade Rating, if at any time the Grantor holds ratings from (a) two NRSROs, then the lower of such two ratings shall be used, and (b) three or more NRSROs, then the second lowest of such ratings shall be used.

Exhibit 10.4

“Lease” is defined in Recital B hereto.

“Lease Assignment” shall mean the assignment of the Lease, the Other Leases, the Lease Guaranties and Rents set forth in Granting Clause Second and Section 2.18 of this Deed of Trust.

“Lease Guarantor” is defined in Section 2.18(a) of this Deed of Trust.

“Lease Guaranty” is defined in Section 2.18(a) of this Deed of Trust.

“Loan” is defined in Section 6.12 of this Deed of Trust.

“Make-Whole Amount” means, with respect to the Note an amount equal to the excess, if any, of the Discounted Value of the Remaining Scheduled Payments with respect to the Called Principal of such Note over the amount of such Called Principal plus fifty (50) basis points, provided that the Make-Whole Amount may in no event be less than zero. For the purposes of determining the Make-Whole Amount, the following terms have the following meanings:

“Called Principal” means, with respect to the Note, the principal of such Note that is to be prepaid pursuant to Section 2.12 of this Deed of Trust or has become or is declared to be immediately due and payable pursuant to Section 5.2 of this Deed of Trust, as the context requires.

“Discounted Value” means, with respect to the Called Principal of the Note, the amount obtained by discounting all Remaining Scheduled Payments with respect to such Called Principal from their respective scheduled due dates to the Settlement Date with respect to such Called Principal, in accordance with accepted financial practice and at a discount factor (applied on the same periodic basis as that on which interest on the Note is payable) equal to the Reinvestment Yield with respect to such Called Principal.

“Reinvestment Yield” means, with respect to the Called Principal of the Note, 0.50% over the yield to maturity implied by (i) the yields reported, as of 10:00 A.M. (New York City time) on the second Business Day preceding the Settlement Date with respect to such Called Principal, on the display designated as “Page PX‑1” on the Bloomberg Financial Markets (or such other display as may replace Page PX-1 on the Bloomberg Financial Markets) for actively traded U.S. Treasury securities having a maturity equal to the Remaining Average Life of such Called Principal as of such Settlement Date, or (ii) if such yields are not reported as of such time or the yields reported as of such time are not ascertainable, the Treasury Constant Maturity Series Yields reported, for the latest day for which such yields have been so reported as of the second Business Day preceding the Settlement Date with respect to such Called Principal, in Federal Reserve Statistical Release H.15 (519) (or any comparable successor publication) for actively traded U.S. Treasury securities having a constant maturity equal to the Remaining Average Life of such Called Principal as of such Settlement Date. Such implied yield will be determined, if necessary, by (a) converting U.S. Treasury bill quotations to bond‑equivalent yields in accordance with accepted financial practice and (b) interpolating linearly between (1) the actively traded U.S. Treasury security with the duration closest to and greater than the Remaining Average Life and (2) the actively traded U.S. Treasury security with the duration closest to and less than the Remaining Average Life.

“Remaining Average Life” means, with respect to any Called Principal, the number of years (calculated to the nearest one‑twelfth year) obtained by dividing (i) such Called Principal into (ii) the sum of the products obtained by multiplying (a) the principal component of each Remaining Scheduled Payment with respect to such Called Principal by (b) the number of years (calculated to the nearest one-twelfth year) that will elapse between the Settlement Date with respect to such Called Principal and the scheduled due date of such Remaining Scheduled Payment.

“Remaining Scheduled Payments” means, with respect to the Called Principal of the Note, all payments of such Called Principal and interest thereon that would be due after the Settlement Date with respect to such Called Principal if no payment of such Called Principal were made prior to its scheduled due date, provided that if such Settlement Date is not a date on which interest payments are due to be made under the terms of the Note, then the amount of the next succeeding scheduled interest payment will be reduced by the amount of interest accrued to such Settlement Date and required to be paid on such Settlement Date pursuant to Section 2.12 of this Deed of Trust or Section 5.2 of this Deed of Trust.

“Settlement Date” means, with respect to the Called Principal of the Note, the date on which such Called Principal is to be prepaid pursuant to Section 2.12 of this Deed of Trust or has become or is declared to be immediately due and payable pursuant to Section 5.2 of this Deed of Trust, as the context requires.

Exhibit 10.4

“Management Agreement” is defined in Section 2.14(e) of this Deed of Trust.

“Maturity Date” shall mean May 15, 2034.

“Moody’s” means Moody’s Investors Service, Inc., or if applicable its successor.

“Non-Recourse Person” is defined in Section 6.10 of this Deed of Trust.

“Note” is defined in Recital A hereto.

“Note Purchase Agreement” is defined in Recital A hereto.

“NRSRO” means a Nationally Recognized Statistical Rating Organization so designated by the Securities Exchange Commission whose status has been confirmed by the Securities Valuation Office of the National Association of Insurance Commissioners.

“Operative Agreements” shall mean, collectively, the Note Purchase Agreement, the Lease, the Assignment of Leases and Rents, this Deed of Trust, the Indemnity and Guaranty Agreement, the SNDA Agreement, the Escrow and Servicing Agreement, and the Note (each as amended, supplemented, restated or otherwise modified in accordance with its respective terms).

“Organizational Documents” of any entity shall mean (a) in the case of a corporation, the articles or certificate of incorporation (or the equivalent of such items under state law) and the by-laws of such corporation, (b) in the case of a limited liability company, the certificate or articles of existence or formation and the operating agreement of such limited liability company, (c) in the case of a limited partnership, the certificate of formation and limited partnership agreement of such limited partnership and the Organizational Documents of the general partner of such limited partnership, (d) in the case of a trust, the certificate of formation (if applicable) and the trust agreement for such trust, and (e) any equivalent documents, to the foregoing under the State law where such entity was organized or formed, each as amended or amended and restated, and in effect from time to time.

“Other Leases” is defined in Section 2.18(a) of this Deed of Trust.

“Permitted Encumbrances” shall mean the liens described in clauses (a) through (i) of Section 2.17 of this Deed of Trust.

“Person” shall mean an individual, partnership, limited liability company, corporation, trust or unincorporated organization.

“Personal Property” shall mean the personal property described in Granting Clause Fourth of this Deed of Trust.

“Rents” is defined in Section 2.18(a) of this Deed of Trust.

“Restoration” is defined in Section 4.1 of this Deed of Trust.

“Restoration Funds” is defined in Section 4.1 of this Deed of Trust.

“S&P” means Standard & Poor’s, a division of The McGraw Hill Companies, Inc., or if applicable its successor.

“Secondary Market Transaction” is defined in Section 6.12 of this Deed of Trust.

“Security” shall have the same meaning as in Section 2(1) of the Securities Act of 1933, as amended.

“SNDA Agreement” shall mean the Subordination, Non‑Disturbance and Attornment Agreement among the Beneficiary, the Tenant and the Grantor.

“Special Risk Insurer” shall mean the issuer of the Special Risk Policy, its successors and assigns.

“Special Risk Policy” is defined in Section 2.15(a)(iii).

Exhibit 10.4

“Subsidiary” shall mean any Person of which more than 50% (by number of votes) of the Voting Interest is owned and controlled by the Grantor and/or one or more Persons which are Subsidiaries of the Grantor.

“Successor Grantor” is defined in Section 2.3(g) of this Deed of Trust.

“Successor Indemnitor” is defined in Section 2.3(g) of this Deed of Trust.

“Successor Owner” is defined in Section 2.3(h) of this Deed of Trust.

“Taxes” is defined in Section 2.16 of this Deed of Trust.

“Tenant” shall mean not only BNSF Railway Company, a Delaware corporation, but also its successors and assigns.

“Trust Agreement” shall mean that certain Pass-Through Trust Agreement and Declaration of Trust dated as of March 12, 2015 by Wells Fargo Bank Northwest, N.A., as trustee, relating to the transactions cintemplated in the Operative Agreements.

“Trust Certificates” is defined in the Trust Agreement.

“Trustee” shall mean Malcolm Morris, and any successor thereto appointed pursuant to Section 6.7 of this Deed of Trust, to the extent required by law to permit the exercise of any remedies pursuant to Section 5.2 of this Deed of Trust and for any other purpose hereunder shall mean the Beneficiary.

“Uniform Commercial Code” shall mean the Uniform Commercial Code as in effect in the State of Texas, as amended.

“Voting Interest” shall mean Securities or equity ownership interest of any class or classes of a Person, the holders of which are ordinarily, in the absence of contingencies, entitled to elect a majority of the corporate directors (or Persons performing similar functions).


SECTION 2.	GENERAL COVENANTS AND WARRANTIES.

From and after the Closing Date (as defined in the Note Purchase Agreement) and continuing so long as the Indebtedness Hereby Secured, remains unpaid, the Grantor covenants that:

Section 2.1. Office for Notices . The Grantor will keep an office at c/o CRIC2 Funds, LLC 29 Commonwealth Avenue, 8th Floor, Boston, Massachusetts 02116 where notices, presentations and/or demands to or upon the Grantor in respect of said Note or this Deed of Trust may be given or made, until such time as the Grantor shall so notify the Beneficiary in writing of any change of location of such office.

Section 2.2. Maintenance of Existence, Rights . The Grantor will at all times preserve and keep in full force and effect its existence and will obtain and maintain in full force and effect all franchises, privileges, rights, licenses and permits and all other consents, approvals and authorizations of any governmental authority necessary for the ownership and efficient operation and maintenance of its business and property which failure to obtain and maintain would materially and adversely affect the properties, business, prospects, profits or condition of the Grantor.

Section 2.3. Negative Covenants. The Grantor will not:

(a) engage in any business other than the ownership and development of the Granted Property, the leasing of the Granted Property to the Tenant and the financing thereof through the issuance of the Note, as expressly contemplated by the Operative Agreements to which the Grantor is a party;

(b) be or become liable in respect of any guaranty, except for any guaranties that are part of, or permitted by the Operative Agreements;

(c) incur any Indebtedness other than (i) Indebtedness Hereby Secured, (ii) Taxes not yet due and payable and items being contested pursuant to Section 2.16(b), (iii) trade payables incurred in the ordinary course of business not

Exhibit 10.4

exceeding $500.00 paid within sixty (60) days of date incurred, and (iv) organizational expenses of a de minimis nature, and (v) obligations under the Lease;

(d) make, or permit to remain outstanding, any investment, loan or advance to, or own or acquire any stock or Securities of, any Person except that the Grantor may make any investment, loan or advance required to be made to satisfy its obligations under the Operative Agreements to which the Grantor is a party;

(e) pay or declare any dividend, or make any other distribution if, after giving effect thereto, a Default or Event of Default would exist;

(f) enter into any lease of any of the Granted Property, whether as lessor or as lessee, other than the Lease or any sublease permitted under the Lease;

(g) sell, transfer, exchange or otherwise dispose of the Granted Property or any part or portion thereof, except as expressly permitted by this Deed of Trust, provided, however, that in connection with any such transfer, sale, exchange or disposition (the purchaser, transferee or new owner in connection with such sale, transfer, exchange or disposition is herein referred to as the “Successor Grantor” , the following conditions are met:

(i) the Successor Grantor shall be a single purpose entity (the Organizational Documents of which shall contain provisions reasonably acceptable to the Beneficiary and similar to the “special purposes entity” provisions included in the Grantor’s Organizational Documents and shall obtain all governmental consents, approvals and authorizations required of its organization and operation;

(ii) after giving effect to the sale, the Successor Grantor shall be in compliance with this Deed of Trust and no Default or Event of Default shall have occurred which shall then be continuing;

(iii) the Successor Grantor shall assume all rights, duties and obligations of the Grantor under the Operative Agreements arising after the date of such assumption;

(iv) the Successor Grantor shall have delivered to the Beneficiary an opinion of its counsel which is satisfactory in form to the Beneficiary covering the due authorization, execution, delivery and enforceability of documents entered into by the Successor Grantor to comply with the foregoing conditions of this paragraph (g) and covering such other related matters as the Beneficiary or special counsel to the beneficial holder of the Note may reasonably require;

(v) the Successor Grantor and the beneficial owner or owners of equity interests in the Successor Grantor (the “Successor Indemnitors” ) shall have entered into and delivered to the Beneficiary an Indemnity and Guaranty Agreement, in the same form as such document delivered to the Beneficiary on the Closing Date and the reputation (including but not limited to compliance with the Office of Foreign Assets Control, absence of any felony conviction, absence of claims or suits filed against the Beneficiary or the holder of the beneficial interest in the Note), creditworthiness (including but not limited to no voluntary or involuntary bankruptcy filings) and experience (including but not limited to having sufficient experience owning, operating or managing comparable properties) of the Successor Indemnitors in real estate ownership, management and/or development shall be reasonably acceptable to the Beneficiary. Upon the execution and delivery of the Indemnity and Guaranty Agreement by the Successor Grantor to the Beneficiary, the Grantor and the Existing Guarantors shall be released from any future liability accruing from and after the effective date thereof;

(vi) all filings, recordings and title insurance date downs or endorsements which are deemed necessary by the Beneficiary or special counsel to the beneficial holder of the Note shall have been made in appropriate public offices;

(vii) the Grantor shall (A) pay to the Beneficiary a fee equal to $100,000 ( provided, however, no such fee shall be due upon the first transfer) and (B) pay all of the reasonable legal fees and expenses of the special counsel representing the beneficial holder(s) of the Note in connection with the sale of the Granted Property to the Successor Grantor;

Exhibit 10.4

(viii) the Grantor shall deliver to the Beneficiary (1) a copy of a waiver executed by the Tenant pursuant to which the Tenant waives any right of first refusal, right of first offer or other purchase option (if any) vested in the Tenant pursuant to the terms of the Lease or otherwise, or (2) such other evidence acceptable to Beneficiary in Beneficiary’s reasonable discretion (provided that Beneficiary may consult with a title company with respect to this issue), that such right of first refusal, right of first offer or other purchase option is not applicable or has lapsed;

(ix) the Grantor shall have obtained the consent of the Special Risk Insurer if required under the Special Risk Policy and the Successor Grantor shall have assumed all of the Grantor’s obligations under the Special Risk Policy; and

(x) the Grantor shall have obtained the consent of the Environmental Liability Insurer if required under the Environmental Liability Policy and the Successor Grantor shall have assumed all of the Grantor’s obligations under the Environmental Liability Policy.

Notwithstanding anything to the contrary contained herein or in any other Operative Agreement, the Grantor shall not be permitted to sell the Granted Property to the Tenant, or an affiliate of the Tenant, without the prior written consent of the Beneficiary.

If the Granted Property is sold in accordance with the terms of this Section 2.3(g), then upon satisfaction of the conditions set forth therein, the selling Grantor (but not, for avoidance of doubt, the Successor Grantor) shall be released from all liability under this Deed of Trust and the other Operative Agreements, except for obligations accruing prior to the date of such sale.

(h) permit any direct or indirect holder or owner of an equity, ownership, membership, partnership, or voting interest in the Grantor (an “Existing Owner” ) to sell, transfer, exchange or otherwise dispose of such interest in any transaction or series of transactions (each a “Transfer” ) that would result in a different Person or entity holding or owning, directly or indirectly, a controlling interest in the Grantor than held or owned such controlling interest on the Closing Date (the “Successor Owner” ); provided that in connection with such sale, the following conditions are met:

(i) after giving effect to the sale, the Grantor shall be in compliance with this Deed of Trust and no Default or Event of Default shall have occurred which shall then be continuing;

(ii) the Successor Owner shall have assumed the obligations of the Existing Guarantors under, or entered into an agreement in the same form as the Indemnity and Guaranty Agreement delivered on the Closing Date;

(iii) the reputation (including but not limited to compliance with the Office of Foreign Assets Control, absence of any felony conviction, absence of claims or suits filed against the Beneficiary or the holder of the beneficial interest in the Note), creditworthiness (including but not limited to no voluntary or involuntary bankruptcy filings) and experience (including but not limited to having sufficient experience owning, operating or managing comparable properties) of such Successor Owner in real estate ownership, management and/or development shall be reasonably acceptable to the Beneficiary; and

(iv) the Successor Owner shall (A) pay to the Beneficiary a fee equal to $100,000 ( provided, however, no such fee shall be due upon the first transfer) and (B) pay all of the reasonable legal fees and expenses of the special counsel representing the beneficial holder of the Note in connection with the sale of such interest to the Successor Owner;

(v) if required under the Special Risk Policy, the Grantor shall have obtained the consent of the Special Risk Insurer so that the Special Risk Policy remains in full force and effect; and

(vi) if required under the Environmental Liability Insurance Policy, the Grantor shall have obtained the consent of the Environmental Liability Insurer so that the Environmental Liability Insurance Policy remains in full force and effect.

Exhibit 10.4

If a controlling interest in the Grantor is sold in accordance with the terms of this Section 2.3(h), then upon satisfaction of the conditions set forth therein, the Existing Owner shall be released from all liability under this Deed of Trust and the other Operative Agreements, except for obligations accruing prior to the date of such sale.

Notwithstanding anything in this Section 2.3(h) to the contrary, direct or indirect transfers of non-controlling ownership interests in the Grantor shall be permitted hereunder any number of times without consent of the Beneficiary or compliance with the foregoing conditions so long as a Person or entity holding or owning a controlling interest in the Grantor on the Closing Date continues to hold or own a controlling interest after giving effect to such transfer.

(i) A Transfer within the meaning of Section 2.3(h) shall not include (i) transfers made in accordance with an estate plan or transfers to Affiliates and (ii) transfers of ownership interests in the Grantor made by devise or descent or by operation of law upon the death of a member or owner of the Grantor, subject however, to all the following requirements: (A) written notice of any transfer under this Section 2.3(i) whether by will, trust or other written instrument, operation of law or otherwise, is provided to Beneficiary, together with copies of such documents relating to the transfer as Beneficiary may reasonably request, (B) control over the management and operation of the Granted Property thereafter is assumed by persons who are acceptable in all respects to Beneficiary in its reasonable discretion, (C) no such transfer will release the respective estate from any liability as an Existing Guarantor, and (D) no such transfer, death or other event has any adverse effect either on the bankruptcy-remote status of the Grantor or on the status of the Grantor as a continuing legal entity liable for the payment of the Indebtedness Hereby Secured and the performance of all other obligations secured hereby;

(j) institute proceedings to be adjudicated bankrupt or insolvent, or consent to the institution of bankruptcy or insolvency proceedings against it, or file a petition under state law relating to bankruptcy or insolvency, or consent to the appointment of a receiver, liquidator, assignee, trustee or sequestrator (or other similar official) of the Grantor, or a substantial part of its property, or make any assignment for the benefit of creditors, or, except as required by law, admit in writing its inability to pay its debts generally as they become due, or take any company action in furtherance of any such action;

(k) amend or modify the Organizational Documents of the Grantor;

(l) create, organize or establish any Subsidiary;

(m) conduct its business in any manner that would likely result in the substantive consolidation of the Grantor with its member or members in bankruptcy;

(n) violate, or permit any holder of an equity interest in the Grantor to violate, the restrictions outlined in Sections 44 (Right of First Offer) and 45 (Right of First Refusal) of the Lease;

(o) will not, and will not permit any of its Affiliates to, own, develop, manage, operate or have any financial interest in a Competing Facility;

(p) sell or transfer the Granted Property for an amount less than the Indebtedness Hereby Secured at the time of such sale or transfer.

Section 2.4. Mergers and Consolidations. The Grantor will not consolidate with or be a party to a merger with any other Person.

Section 2.5. Financial Information and Reports . The Grantor will keep proper books of record and account in which full, true and correct entries will be made of all dealings or transactions of or in relation to the business and affairs of the Grantor in accordance with the accounting basis used for income tax purposes and will furnish to the Beneficiary:

(a) As soon as available and in any event within one hundred twenty (120) days after the close of each fiscal year of the Grantor, copies of:

(i) a balance sheet of the Grantor as of the close of such fiscal year, and

Exhibit 10.4

(ii) a statement of operating income, retained earnings and cash flows of the Grantor for such fiscal year,

in each case setting forth in comparative form the figures for the preceding fiscal year, all in reasonable detail and accompanied by a certificate of an officer of the Grantor to the effect that such financial statements have been prepared in accordance with the accounting basis used for tax purposes, are complete and correct and present fairly, in all material respects, the financial condition of the Grantor; provided, that if the financial statements required by this paragraph (a) shall be prepared by a firm of independent public accountants, then in lieu of a statement certified by an officer of the Grantor, copies of such statements shall be furnished to the Beneficiary at the times required by the preceding provisions of this paragraph (a);

(b) Within the periods provided in paragraph (a) above, the written statement of the Grantor, signed by an authorized officer of the Grantor, stating whether, to the best of his knowledge, there existed as of the date of such financial statements and on the date of the certificate any Default or Event of Default under this Deed of Trust, and specifying the nature and period of existence thereof and the action the Grantor is taking and proposes to take with respect thereto; and

(c) Such additional information as the Beneficiary may reasonably request concerning the Grantor and the Indemnitor (including without limitation financial statements of the Indemnitor.

The Grantor will permit the Beneficiary (or such Persons as the Beneficiary may designate) to visit and inspect the Granted Property under the Grantor’s guidance, to examine all of its books of account, records, reports and other papers, to make copies and extracts therefrom and to discuss its affairs, finances and accounts with its officers, agents and representatives, all at such reasonable times and as often as any such holder may reasonably desire, in each case subject to the terms and conditions set forth in the Lease, provided, that at any time when an Event of Default shall have occurred and be then continuing, such visit and inspection shall be at the expense of the Grantor.

Section 2.6. Notice of Default. The Grantor will, immediately upon an officer or member of the Grantor acquiring actual knowledge of a Default or Event or Default, furnish a written notice to the Beneficiary specifying the nature and period of existence of such condition or event and what action the Grantor is taking or proposes to take with respect thereto.

Section 2.7. Mortgage Title Insurance Policy. The Grantor will, on the Closing Date, at its own cost and expense, procure and deliver to the Beneficiary or its counsel an ALTA 2006 Loan Policy of Title Insurance issued by a title insurance company acceptable to the Beneficiary which policy shall conform to the commitment or pro forma, as applicable, for title insurance issued to the Beneficiary in the form attached as an exhibit to the Escrow Instruction Letter delivered at Closing which policy shall be not less than the principal amount of the Note issued and delivered on the Closing Date covering the Granted Property showing marketable fee title to the Granted Property to be in the Grantor, subject only to Permitted Encumbrances, which policy shall also insure the Beneficiary against all loss or damage sustained by reason of this Deed of Trust not being a first and paramount lien at the date of such policy upon title to the Granted Property and which policy shall show recordation of this Deed of Trust and the SNDA Agreement, shall be dated the Closing Date and shall otherwise be in form and substance satisfactory to the Beneficiary.

Section 2.8. Payment of Certain Taxes . The Grantor covenants and agrees to pay all taxes, assessments and governmental charges or levies imposed upon this Deed of Trust or the Note or any other Indebtedness Hereby Secured.

Section 2.9. Ownership of Granted Property . The Grantor covenants and warrants that it has good and marketable title to the Granted Property hereinbefore conveyed to the Beneficiary free and clear of all liens, charges and encumbrances whatever except Permitted Encumbrances, and the Grantor has full right, power and authority to grant, warrant, mortgage, pledge, assign, sell, demise, bargain, hypothecate, convey, grant a security interest in, transfer and set over the same to the Beneficiary for the uses and purposes in this Deed of Trust set forth; and the Grantor will warrant and defend the title to the Granted Property against all claims and demands whatsoever. Without limiting the foregoing, the Grantor represents and warrants that the restrictions, exceptions, reservations, limitations, interests and other matters, if any, set forth immediately following the specific descriptions of the parcels of land in Exhibit A attached hereto, together with all other restrictions, exceptions, reservations, limitations, interests and other matters, if any, existing on the date of execution and delivery of this Deed of Trust, do not in the aggregate impair the value of the Granted Property or adversely affect the utility, structural integrity or beneficial enjoyment of the Granted Property for the uses to which the Granted Property is being put.

Exhibit 10.4

Section 2.10. Further Assurances . The Grantor will, at its own expense, do, execute, acknowledge and deliver all and every further act, deed, conveyance, transfer and assurance necessary or proper for the better assuring, conveying, assigning and confirming unto the Beneficiary all of the Granted Property, or property intended so to be, whether now owned or hereafter acquired.

Section 2.11. Payment of Principal and Interest . The Grantor will duly and punctually pay the principal of, and premium of, if any, and interest on the Note secured hereby according to the terms thereof.

Section 2.12. Prepayment of Note . No prepayment of the Note may be made except to the extent and in the manner expressly permitted by this Section 2.12.

(a) Required Prepayment without Make-Whole Amount in the Event of Condemnation . In the event of a condemnation of all or a portion of the Granted Property which results in a termination of the Lease the Grantor shall prepay the Note in whole, but not in part, by payment of the principal amount of the Note then outstanding, together with accrued interest thereon to the date of such prepayment, which prepayment shall be made taking into account the proceeds paid under any insurance policies carried pursuant to this Deed of Trust, but without any Make-Whole Amount.

(b) Optional Prepayment with Make-Whole Amount. The Grantor shall have the privilege, at any time and from time to time, of prepaying the outstanding Note, in whole but not in part by payment of the principal amount of the Note, and accrued interest thereon to the date of such prepayment, together with a premium equal to the Make-Whole Amount, determined as of two (2) business days prior to the date of such prepayment pursuant to this Section 2.12(b).

(c) Notice of Prepayments. The Grantor will give notice of any intended prepayment of the Note pursuant to Section 2.12(b) to the Beneficiary not less than thirty (30) days nor more than sixty (60) days before the date fixed for such prepayment specifying (i) such date and (ii) the principal amount of the Note to be prepaid on such date. Notice of prepayment having been so given, the principal amount of the Note specified in such notice, together with accrued interest thereon and the premium, if any, payable with respect thereto shall become due and payable on the prepayment date specified in said notice. Not later than two (2) business days prior to the prepayment date specified in such notice, the Beneficiary shall provide the Grantor written notice of the principal amount, accrued interest thereon to the date of such prepayments and Make-Whole Amount, if any, due and payable by the Grantor on the prepayment date together with a calculation of the Make-Whole Amount and such calculation by the Beneficiary shall be presumptively correct absent manifest error.

Section 2.13. Method and Place of Payment of Principal and Interest . Anything in the Note or this Deed of Trust to the contrary notwithstanding, the Grantor will promptly and punctually pay, or cause the Escrow Agent to pay, the principal of the Note and premium, if any, and interest thereon, without any presentment thereof, at the address set forth for payment on Schedule I attached to the Escrow and Servicing Agreement (or to any nominee designated by the Beneficiary) as payee, at its address specified in writing to, and received by, the Grantor at least ten (10) days prior to the date fixed for such payment) and if a bank account is designated for the Beneficiary in said Schedule I, payments will be made in immediately available funds to such bank account, or payments will be made in such other manner or such other place within the continental limits of the United States as the Beneficiary may reasonably direct in writing. If the Beneficiary shall sell or transfer the Note, the Beneficiary will notify the Grantor of such action and of the name and address of the transferee of the Note and the Beneficiary will, prior to the delivery of the Note, make a notation on the Note of the date to which interest has been paid on the Note and, if not previously made, a notation on the Note of the extent to which any payment has been made on account of the principal of the Note.

Section 2.14. Maintenance of Granted Property, Other Liens, Compliance with Laws, Etc. (a) The Grantor shall (i) subject to Sections 3 and 4 hereof, promptly repair, restore or rebuild or cause any such repair, restoration or rebuilding of, any buildings or improvements now or hereafter located on the Granted Property which may become damaged or be destroyed, (ii) keep, or cause to be kept, the Granted Property in good condition and repair, ordinary wear and tear excepted, without waste, and free from all claims, liens, charges and encumbrances other than Permitted Encumbrances, (iii) pay, or cause to be paid, when due any indebtedness which may be secured by a lien or charge on the Granted Property which does not constitute a Permitted Encumbrance, and upon request exhibit satisfactory evidence of the discharge of such lien to the Beneficiary, (iv) comply with, or cause to be complied with, all requirements of law or municipal ordinances with respect to the Granted Property and the use thereof (including, without limitation, any law or municipal ordinance with respect to environmental protection or hazardous wastes), failure to comply with which would result in any material interference with the use or operation of the Granted Property by the Grantor, (v) promptly procure, maintain and comply with, or cause to be promptly procured, maintained and complied with, all permits, licenses and other authorizations required for the use of the Granted Property or any erection, installation, operation and maintenance of the Granted Property or any part thereof, and (vi) make no material alterations in said Granted Property except as required by law or

Exhibit 10.4

municipal ordinance or as permitted under the Lease; provided, however, that so long as the Granted Property is subject to the Lease, (A) the requirements with respect to the maintenance, repair, restoration and rebuilding of the Granted Property contained in this Section 2.14 shall be satisfied by the maintenance, repair, restoration and rebuilding of the Granted Property in accordance with and to the extent provided in the Lease and (B) the exercise by Tenant of any right granted to it under the Lease shall not give rise to a default under this Deed of Trust if such right is exercised in compliance with the Lease so long as neither the lien nor the priority of this Deed of Trust is impaired by the exercise of such rights.

(b) The Grantor may, or may permit the Tenant to, (i) construct upon the Granted Property additional buildings, structures and other improvements and (ii) install, assemble and place upon the Granted Property any trade fixtures, signs, furniture, furnishings, equipment, machinery and other tangible personal property used or useful in the business of the Grantor or the Tenant or any subtenant, as the case may be, whether or not classified as fixtures under applicable law, in each case, in accordance with applicable law. Subject to the qualifications set forth in paragraph (a) immediately following Granting Clause Sixth of this Deed of Trust, all such buildings, structures and other improvements shall be and remain part of the realty and shall be subject to this Deed of Trust. Such trade fixtures, signs, furniture, furnishings, equipment, machinery and other tangible personal property shall be and remain the property of the Grantor or the Tenant as the case may be, shall not be deemed part of the Granted Property for purposes of condemnation or casualty, and the Grantor or the Tenant, as the case may be, may remove the same from the Granted Property at any time prior to the expiration or earlier termination of this Deed of Trust, provided that the Grantor, at its expense, shall repair or shall cause the Tenant to repair any damage to the Granted Property resulting from such removal.

(c) Any repair, restoration, rebuilding, substitution, replacement, modification, alteration of or addition to the Granted Property pursuant to this Section 2.14 must not impair the market value or usefulness of the Granted Property for use in the ordinary course of business; shall be expeditiously performed in a good and workmanlike manner and be completed in compliance with all laws, ordinances, orders, rules, regulations and requirements applicable thereto, including to the extent necessary to maintain in full force and effect the policies of insurance required by Section 2.15 hereof. All costs and expenses of each such repair, restoration, rebuilding, substitution, replacement, the discharge of all liens filed against the Granted Property arising out of the same, together with all costs and expenses necessary to obtain any permits or licenses required in connection therewith shall be promptly paid by the Grantor or the Tenant.

(d) The Grantor will only use and operate the Granted Property, or permit the same to be used and operated, for any lawful purpose. The Grantor will not initiate, join in, acquiesce in, or consent to any change in any legal requirements, limiting or defining the use that may be made of the Granted Property without the express written consent of the Beneficiary (which consent shall not be unreasonably withheld). If, under applicable zoning provisions, the use of all or a portion of the Granted Property is or will become a nonconforming use, the Grantor will not cause or permit such nonconforming use to be discontinued or abandoned without the Beneficiary’s express written consent.

(e) Prior to entering into any management agreement or other agreement with respect to the management of the Granted Property (a “Management Agreement” ), the Grantor shall execute and deliver to Beneficiary, or cause to be executed and delivered to Beneficiary, a Subordination of Management Agreement, in form and substance satisfactory to Beneficiary, pursuant to which the party who shall act as manager of the Granted Property under such Management Agreement shall, among other things, subordinate its right to payment for services rendered in managing the Granted Property to the payment of the debt service to Beneficiary with respect to the Note.

Section 2.15. Insurance. (a) The Grantor will continuously maintain, or will cause to be continuously maintained, the following-described insurance coverage, all of which must be satisfactory to the Beneficiary as to form of policy, amounts, deductibles, sublimits, types of coverages, exclusions and companies underwriting these coverages:

(i) Insurance with respect to the Improvements and Personal Property insuring against any peril now or hereafter included within the classification “Cause of Loss - Special Form” (sometimes referred to as “All Risk of Physical Loss”), without exclusion for terrorism and together with an “Ordinance and Law” endorsement, in amounts at all times sufficient to prevent Beneficiary from becoming a co-insurer within the terms of the policies and under applicable law, but in any event such insurance shall be maintained in an amount which, after application of deductible, shall be equal to the full insurable value of the Improvements and Personal Property, the term “full insurable value” to mean the actual replacement cost of the Improvements and Personal Property (without taking into account any depreciation, and exclusive of excavations, footings and foundations, landscaping and paving) determined annually by an insurer, a recognized independent insurance broker or an independent appraiser selected and paid by the Grantor and in no event less than the coverage required pursuant to the terms of any Lease;

Exhibit 10.4

(ii) Comprehensive public liability insurance on an “occurrence basis” or a “claims made basis” against claims for “personal injury” including without limitation bodily injury, death or property damage occurring on, in or about the Granted Property and the adjoining streets, sidewalks and passageways, provided that such insurance shall afford immediate minimum protection to a combined single limit of at least $10,000,000 per person and accident and at least $2,000,000 for property damage liability;

(iii) Non-cancelable insurance against a condemnation of the Granted Property which results in a termination of the Lease or an abatement of or reduction in rent in an amount not less than the opening principal balance of the Note (the “Special Risk Policy” );

(iv) Environmental liability insurance policy (the “Environmental Liability Policy” ) in an aggregate amount of not less than $10,000,000, providing substantially the same coverage as the environmental liability insurance policy obtained by the Company on the Closing Date, naming the Beneficiary as an additional insured and providing that it will not be cancelled or materially altered without the Beneficiary first receiving at least 30 days’ prior written notice of such cancellation or material alteration; and

(v) Business Automobile Coverage Insurance containing a combined single limit of at least $1,000,000 per occurrence or claim.

(b) Any insurance coverage maintained in accordance with Section 2.15(a) shall at all times be written by insurance companies of recognized national standing and with a rating of A and Class VII or better by A.M. Best Company or an equivalent rating by an NAIC-approved rating organization and authorized to do business in the State of Texas and: (A) shall name the Grantor and the Beneficiary as insureds, additional insureds or loss payee (as applicable), as their interests may appear, (B) in the case of policies covering loss or damage to the Granted Property, shall provide that such losses, if any, shall be payable solely to the Beneficiary or, at the direction of the Beneficiary, the depository under a standard mortgagee or beneficiary loss payable clause satisfactory to the Beneficiary, (C) shall provide that the Beneficiary’s interest shall be insured regardless of any breach or violation by the Grantor of any warranties, declarations or conditions contained in such policies, (D) such insurance, as to the interest of the Beneficiary therein, shall not be invalidated by the use or operation of the Granted Property for purposes which are not permitted by such policies, nor by any foreclosure or other proceedings relating to the Granted Property, nor by change in title to or ownership of the Granted Property, (E) the insurers shall waive any right of subrogation of the insurers to any set-off or counterclaim or any other deduction, whether by attachment or otherwise, in respect of any liability of the Grantor, (F) if any premium or installment is not paid when due, or if such insurance would lapse or be canceled, terminated or materially changed for any reason whatsoever, the insurers will promptly notify the Beneficiary and any such lapse, cancellation, termination or change shall not be effective as to the Beneficiary for thirty (30) days after receipt of such notice, (G) appropriate certification shall be made to the Beneficiary by each insurer with respect thereto, and (H) shall provide for deductibles in amounts not in excess of amounts as is customary for companies similarly situated and owning properties in the State of Texas similar to the Granted Property; provided, however, notwithstanding the foregoing, any insurance coverage maintained in accordance with Section 2.15(a)(i), (ii) and (v) may be (x) maintained by the Tenant pursuant to a program of self-insurance so long as the Tenant maintains a long-term unsecured debt rating of at least Investment Grade or (y) maintained by the Tenant with third party insurance companies in accordance with the terms of the Lease. Provided no Default or Event of Default has occurred or is continuing, the loss, if any, under any policy pertaining to loss by reason of damage to or destruction of any portion of the Granted Property shall be adjusted with the insurance companies by the Grantor, subject to the reasonable approval of the Beneficiary if the loss exceeds $50,000. The loss so adjusted shall be paid to the Beneficiary pursuant to said loss payable clause unless said loss is $50,000 or less in which case said loss shall be paid directly to the Grantor, provided no Default or Event of Default has occurred and is continuing, in which event any such loss shall be paid to the Beneficiary.

(c) The Grantor shall furnish the Beneficiary with certificates or other satisfactory evidence of maintenance of the insurance required hereunder (including, without limitation, evidence of self-insurance by the Tenant, if applicable) and with respect to any renewal policy or policies shall furnish certificates evidencing such renewal not less than thirty (30) days prior to the expiration date of the original policy or renewal policies. All such policies shall provide that the same shall not be canceled without at least thirty (30) days’ prior written notice to each insured named therein.

(d) For the avoidance of doubt, insurance or self-insurance maintained by Tenant in compliance with the requirements set forth in Section 33 of the Lease (as in effect on the date of this Deed of Trust) will satisfy Grantor’s obligations under Sections 2.15(a)(i), (ii) and (v) of this Deed of Trust, provided the insurer rating requirement set forth in the initial sentence of Section 2.15(b) hereof is satisfied or, in the case of self-insurance, the Tenant maintains a long term unsecured debt rating of at least Investment Grade while self-insuring.

Exhibit 10.4

Section 2.16. Payment of Taxes and Other Charges. (a) The Grantor will pay and discharge (if they are not otherwise paid by Tenant under the Lease), before the same shall become delinquent, together with interest and penalties thereon, if any, (i) all taxes, assessments (including assessments for benefits from public works or improvements whenever begun or completed), levies, fees, water, sewer, electrical and other utility service rents and charges, and all other governmental charges, general and special, ordinary and extraordinary, and whether or not within the contemplation of the parties hereto, which are at any time levied upon or assessed against it or the Granted Property or any part thereof or upon this Deed of Trust or the Note secured hereby, or upon the revenues, rents, issues, income and profits in respect of the Granted Property, or arising in respect of the occupancy, use or possession thereof, which failure to pay would result in the creation of a lien upon the Granted Property or any part thereof, or upon the revenues, rents, issues, income and profits of the Granted Property or in the diminution thereof or would result in any material interference with the use or operation of the Granted Property by the Grantor, (ii) all franchise, excise and other taxes, fees and charges assessed, levied or imposed in respect of its existence or its right to do business in any state, (iii) all income, excess profits, excise, sales, franchise, gross receipts and other taxes, duties or imposts, whether of a like or different nature, assessed, levied or imposed by any governmental authority on it or the Granted Property, or any portion thereof, or upon the revenues, rents, issues, income and profits of the Granted Property if the failure to pay any such tax, duty or impost might result in the creation of a lien upon any asset of the Grantor or the Granted Property or any part thereof or upon the revenues, rents, issues, income and profits of the Granted Property or in the diminution thereof, and whether or not any such tax, duty or impost is payable directly by the Grantor or is subject to withholding at the source and (iv) all lawful claims and demands of mechanics, laborers, materialmen and others which, if unpaid, might result in the creation of a lien on the Granted Property or upon the revenues, rents, issues, income and profits of the Granted Property and, in general, will do or cause to be done everything necessary so that the lien hereof shall be fully preserved, at the cost of the Grantor, without expense to the Beneficiary (items (i) through (iv), inclusive, are collectively, the “Taxes” ).

(b) After prior written notice to the Beneficiary, the Grantor, at its own expense, may contest by appropriate legal proceeding, promptly initiated and conducted in good faith and with due diligence, the amount or validity or application in whole or in part of any of the Taxes, provided that (i) no Event of Default has occurred and is continuing under any of the Operative Agreements, (ii) such proceeding shall suspend the collection of the Taxes from the Grantor and from the Granted Property or the Grantor shall have paid all of the Taxes under protest, (iii) such proceeding shall be permitted under and be conducted in accordance with the provisions of any other instrument to which the Grantor is subject and shall not constitute a default thereunder, (iv) neither the Granted Property nor any part thereof or interest therein will be in danger of being sold, forfeited, terminated, cancelled or lost and (v) the Grantor shall have maintained adequate reserves for the payment of the Taxes, together with all interest and penalties thereon, unless the Grantor has paid all of the Taxes under protest, or the Grantor shall have furnished the security as may be required in the proceeding, or as may be reasonably requested by the Beneficiary to insure the payment of any contested Taxes, together with all interest and penalties thereon. Nothing in this Section 2.16(b) shall prohibit the Tenant from contesting the payment of Taxes to the extent the Tenant is permitted to do so under the terms and conditions of the Lease, and the Grantor shall not be deemed in default of its obligations hereunder so long as Tenant is diligently contesting the payment of such Taxes in compliance with the terms of the Lease.

Section 2.17. Limitation on Liens. The Grantor will not create or incur or suffer to be incurred or to exist, any mortgage, pledge, security interest, encumbrance, lien or charge of any kind upon the Granted Property, whether now owned or hereafter acquired, or upon any income or proceeds therefrom, except the following:

(a) liens for property taxes and assessments or governmental charges or levies and liens securing claims or demands of mechanics and materialmen, provided that payment thereof is not overdue or, if overdue, is being contested in good faith by appropriate actions or proceedings with appropriate reserves established;

(b) liens of or resulting from any judgment or award, the time for the appeal or petition for rehearing of which shall not have expired, or in respect of which the Grantor shall at any time in good faith be prosecuting an appeal or proceeding for a review and in respect of which a stay of execution pending such appeal or proceeding for review shall have been secured;

(c) liens, charges, encumbrances and priority claims incidental to the conduct of business or the ownership of properties and assets (including warehousemen’s and attorneys’ liens and statutory landlords’ liens) and deposits, pledges or liens to secure payment of premiums on insurance purchased in the usual course of business or in connection with self-insurance or in connection with workmen’s compensation, unemployment insurance or social security legislation, or to secure the performance of bids, tenders or trade contracts, or to secure statutory obligations, surety or appeal bonds or other liens of like general nature incurred in the ordinary course of business and not in connection with the borrowing of money, provided in each case, the obligation secured is not overdue or, if overdue, is being contested in good faith by appropriate actions or proceedings with appropriate reserves established;

Exhibit 10.4

(d) minor survey exceptions or minor encumbrances, easements or reservations of, or rights of others for rights-of-way, utilities and other similar purposes, or zoning or other restrictions as to the use of real properties, which encumbrances, easements, reservations, rights and restrictions do not in the aggregate materially detract from the value of said properties or materially impair their use in the operation of the business of the Grantor;

(e) the lien of this Deed of Trust;

(f) the lien of the Lease, subject to the SNDA Agreement;

(g) the lien of any permitted sublease from the Tenant, as sublessor, to any Person, as sublessee; provided that the lien thereof shall be subject to the terms of the Lease and the SNDA Agreement;

(h) easements, rights of way, reservations, restrictive agreements, servitudes and rights of others against the Granted Property and any other matters which are listed on Schedule B to the ALTA Title Insurance Policy delivered to the Beneficiary following the issuance and delivery of the Note; and

(i) utility easements, rights of way or reservations granted or to be granted to service providers in connection with the development of the Granted Property, which such utility easements, rights of way or reservations do not in the aggregate detract from or impair the value of or use of the Granted Property and have been approved in writing by the Tenant.

Section 2.18. Assignment; Obligations and Terms Respecting the Lease, the Other Leases and the Lease Guaranties

(a) Assignment. In addition to, and not in contravention of, Granting Clause Second of this Deed of Trust, the Grantor, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and to further secure the payment and performance by the Grantor of all Indebtedness Hereby Secured hereby absolutely and unconditionally assigns, transfers and grants to the Beneficiary the following property, rights, interests and estates, now owned, or hereafter acquired, by the Grantor:

(i) Lease. The Lease and the right, title and interest of the Grantor, its successors and assigns, therein and thereunder.

(ii) Other Leases and Agreements. All other leases, subleases and other agreements, whether or not in writing, affecting the use, enjoyment or occupancy of the Granted Property or any portion thereof now or hereafter made, together with any extension, renewal or replacement of the same (collectively, the “Other Leases” ), this assignment of the Other Leases being effective without further or supplemental assignment.

(iii) Rents . All rents, additional rents, percentage rents, revenues, income, proceeds, payments, reimbursable amounts, issues and profits arising from the Lease, the Other Leases and the Lease Guaranties and any cash or security deposited in connection therewith (including, without limitation, all commissions and all oil and gas and other mineral royalties and bonuses) payable by the Tenant under the Lease or any other tenant under the Other Leases or any Lease Guarantor under any Lease Guaranty or otherwise, for or in connection with the use, enjoyment and occupancy of the Granted Property (collectively, the “Rents” ).

(iv) Bankruptcy Claims . All of the Grantor’s claims and rights (the “Bankruptcy Claims” ) to the payment of damages arising from any rejection by the Tenant of the Lease or any other tenant under the Other Leases under the Bankruptcy Code, 11 U.S.C. §101 et seq ., as the same may be amended (the “Bankruptcy Code” ) or under any comparable federal or state statute or law.

(v) Lease Guaranties . All of the Grantor’s right, title and interest in and to any and all lease guaranties, letters of credit and any other credit support given in connection with the Lease and the Other Leases to the Grantor or predecessors (individually, a “Lease Guaranty” , and, collectively, the “Lease Guaranties” ) by any guarantor (individually, a “Lease Guarantor,” and, collectively, the “Lease Guarantors” ).

(vi) Proceeds . All proceeds from the sale or other disposition of the Lease, the Other Leases, the Rents, the Lease Guaranties and the Bankruptcy Claims.

Exhibit 10.4

(vii) Other . All rights, powers, privileges, options and other benefits of the Grantor as lessor under the Lease and the Other Leases and beneficiary under the Lease Guaranties, including without limitation, (A) the immediate and continuing right to make claims for, receive, collect and receipt for, all Rents payable or receivable under the Lease and the Other Leases and all sums payable under the Lease Guaranties or pursuant thereto (and to apply the same to the payment of the Indebtedness Hereby Secured) and to do all other things which the Grantor or any lessor is or may become entitled to do under the Lease, the Other Leases or the Lease Guaranties; (B) the right to pursue and collect any claim in bankruptcy or receivership proceedings of the Tenant, any other tenant under the Other Leases or any Lease Guarantor; (C) the right to accept or reject any offer made by the Tenant, any other tenant under the Other Leases or any Lease Guarantor to purchase the Granted Property or any part thereof and any other property subject to the Lease, the Other Leases or any Lease Guaranty and to perform all other necessary or appropriate acts with respect to such purchases; (D) the right to make all waivers and agreements, to give and receive all notices, consents and releases, and to take such action upon the happening of a default beyond applicable cure periods, if any, under the Lease, the Other Leases or any Lease Guaranty as the Grantor shall have the right under the Leases, the Other Leases or any Lease Guaranty or at law to take, including the right to commence, conduct and consummate eviction proceedings; (E) the right, at Beneficiary’s option to enter upon the Granted Property or any portion thereof in person, by agent or by court‑appointed receiver; and (F) the Grantor’s irrevocable power of attorney, coupled with an interest, to take any and all of the actions set forth in this Deed of Trust and any or all other actions designated by Beneficiary for the proper management and preservation of the Granted Property.

This assignment is a perfected present, absolute, direct and unconditional assignment and transfer of all the Grantor’s right, title and interest in and to, but not the obligations under, the Lease, the Other Leases, the Lease Guaranties and the Rents made in consideration of the loan by Beneficiary to the Grantor and as additional security for the repayment of the Indebtedness Hereby Secured.

(b) Obligations and Terms Respecting the Lease, the Other Leases and the Lease Guaranties.

(i) At all times the Granted Property shall be leased to the Tenant under the Lease, provided that, to the extent permitted thereby and by the SNDA Agreement, the Lease may be assigned or the Granted Property sublet by the Tenant upon the terms and conditions set forth in the Lease and in the SNDA Agreement. The Grantor will punctually perform all obligations, covenants and agreements by it to be performed under the Lease, the Other Leases and the Lease Guaranties strictly in accordance with the terms thereof, and will at all times do all things necessary to compel performance by the Tenant, any other tenant under the Other Leases and the Lease Guarantors of all covenants and agreements by them to be performed under the Lease, the Other Leases or the Lease Guaranties, as applicable. The Grantor will take no action and permit no action to be taken by other Persons which will release the Tenant, any other tenant under the Other Leases or any Lease Guarantor from their obligations and liabilities under the Lease, the Other Leases or the Lease Guaranties, as applicable, or result in the termination, amendment or modification of, or impair the validity of, the Lease, the Other Leases or the Lease Guaranties, as applicable. The Grantor will give to the Beneficiary notice of all defaults by the Tenant, any other tenant under the Other Leases or any Lease Guarantor, as applicable, under the Lease, the Other Leases or the Lease Guaranties, promptly after they have become known to the Grantor. Neither this Deed of Trust nor any action or inaction on the part of the Beneficiary shall constitute an assumption on the part of the Beneficiary of any obligation to the Tenant, any other tenant under the Other Leases or any Lease Guarantor or any other Person under the Lease, the Other Leases or the Lease Guaranties. No action or inaction on the part of the Grantor shall adversely affect or limit in any way the rights of the Beneficiary under this Deed of Trust, or, through this Deed of Trust, under the Lease, the Other Leases or the Lease Guaranties.

(ii) The Grantor will not, except with the prior written consent of the Beneficiary, take or suffer to be taken any action or consent to or permit any prepayment or discount of Rents or payment of Rents more than one month in advance, under the Lease, the Other Leases or the Lease Guaranties.

(iii) The Grantor will not, without the prior written consent of the Beneficiary:

(A) declare a default or exercise the remedies of the landlord or beneficiary under, or terminate, modify or accept a surrender of, or exercise any recapture rights with respect to, or offer or permit any termination, modification or surrender of, the Lease, the Other Leases or the Lease Guaranties, or any reciprocal easement or restrictive covenant agreement or similar agreement running with the land or create or consent to the creation or existence of any mortgage or other lien to secure the payment of indebtedness upon the landlord’s interest under the Lease or the leasehold estate created thereby, the Other Leases or the Lease Guaranties or any part

Exhibit 10.4

thereof, subject, however, to Tenant’s rights to assign its interest in the Lease in accordance with the terms thereof; or

(B) other than to the Beneficiary, assign, transfer or hypothecate any Rents or other payment due or to become due under the Lease, the Other Leases or the Lease Guaranties or anticipate any Rents or other payment thereunder.

(iv) The Grantor acknowledges that the Beneficiary has directed the Tenant in a letter of direction to deliver or remit directly to the Escrow Agent, all Rents (including, without limitation, all fixed rent, basic rent, percentage rent and all additional rent), income, revenues, issues, profits, insurance proceeds, condemnation awards, liquidated damages, purchase price proceeds and other payments, tenders and security now or hereafter due and payable to or receivable by the Grantor under the Lease, such amounts to be paid directly to the Escrow Agent in the manner provided therein or in such other manner as the Beneficiary may from time to time designate. All amounts received by the Escrow Agent shall be applied in the manner provided herein and in the Escrow and Servicing Agreement. The Grantor hereby agrees to send to the Beneficiary, in accordance with Section 6.3 hereof, copies of all notices and all other instruments or communications required or permitted to be given by the Grantor under the Lease, the Other Leases and the Lease Guaranties pursuant thereto.

(v) Notwithstanding anything to the contrary set forth in the SNDA Agreement or any other document, the Grantor agrees that it will not enter into any agreement subordinating, amending, supplementing, hypothecating, waiving, discharging or terminating the Lease, the Other Leases or any Lease Guaranty or this Deed of Trust without the Beneficiary’s prior written consent thereto, and that any attempted subordination, amendment, supplement, hypothecation, waiver, discharge or termination without such consent shall be void. The Grantor will not terminate the Lease, the Other Leases or any Lease Guaranty or take possession of the Granted Property in the event of default without the express prior written consent of the Beneficiary. In the event that the Lease, the Other Leases or any Lease Guaranty shall be amended or supplemented as herein permitted, the Lease, the Other Leases and the Lease Guaranties as so amended or supplemented shall continue to be subject to the provisions of this Deed of Trust without the necessity of any further act by any of the parties hereto.

(vi) The Lease Assignment set forth in this Section 2.18 and Granting Clause Second of this Deed of Trust shall run with the land and be good and valid against the Grantor or those claiming by, under or through the Grantor, from the date hereof and such assignment shall continue to be operative during the foreclosure or any other proceeding taken to enforce this Deed of Trust. In the event of a sale or foreclosure which shall result in a deficiency, such assignment shall stand as security during the redemption period for the payment of such deficiency. The Beneficiary shall be permitted, at its sole option, to exercise remedies under such assignment separately from remedies exercised against other portions of the Granted Property.

(c) Excepted Rights. Notwithstanding anything to the contrary contained in this Section 2.18, Section 2.18 is in all respects subject to the Excepted Rights of Grantor.

Section 2.19. Advances. If the Grantor shall fail to comply with the covenants contained herein or in the Note Purchase Agreement or in any other Operative Agreement and incorporated herein by reference, the Beneficiary, after five (5) days’ prior written notice to the Grantor, and without waiving or releasing any obligation or Default, may (but shall be under no obligation to) at any time thereafter make such payment or perform such act for the account and at the expense of the Grantor, and may enter upon the Granted Property or any part thereof for such purpose and take all such action thereon as, in the opinion of the Beneficiary, may be necessary or appropriate therefor. All sums so paid by the Beneficiary and all costs and expenses (including without limitation, reasonable attorneys’ fees and expenses) so incurred, together with interest thereon at the Default Rate from the date of payment or incurrence, shall be secured hereby in priority to the indebtedness evidenced by the Note and shall be paid by the Grantor to the Beneficiary on demand. The Beneficiary in making any payment authorized under this Section relating to taxes or assessments may do so according to any bill, statement or estimate procured from the appropriate public office without inquiry into the accuracy of such bill, statement or estimate or into the validity of any tax assessment, sale, forfeiture, tax lien or title or claim thereof.

Section 2.20. Recordation. The Grantor will, at its own expense, cause this Deed of Trust, the Lease (or a memorandum thereof), the SNDA Agreement, all supplements hereto and thereto, and any financing statements and continuation statements required by law, including the Uniform Commercial Code, in respect hereof and thereof at all times to be kept recorded and filed at its own expense in such manner and in such places as may be required by law in order to fully preserve and protect the rights

Exhibit 10.4

of the Trustee and the Beneficiary hereunder and thereunder. The Grantor hereby specifically consents to any financing statements and/or financing statements and continuation statements or other filings related to this Deed of Trust being made electronically, to the extent permitted by law. Additionally, the Grantor hereby specifically consents to any other financing statements and/or financing statements and continuation statements or other filings related to this Deed of Trust being made electronically, to the extent permitted by law, or otherwise. The Grantor hereby authorizes the Beneficiary and/or the Trustee and its agents or counsel to file, in the name of the Grantor or otherwise, financing statements and continuation statements with regard to any filed financing statements. The Grantor hereby irrevocably appoints the Beneficiary and/or the Trustee, or any agent designated by the Beneficiary and/or the Trustee, its true and lawful attorney-in-fact, which power is coupled with an interest and with full power of substitution, to execute, acknowledge, file and deliver financing statements in the name of the Grantor. Furthermore, the Grantor hereby authorizes Chapman and Cutler LLP, Beneficiary and/or the Trustee and its agents or counsel to file financing statements that indicate the collateral (i) as all assets of the Grantor or words of similar effect or (ii) as being of an equal, greater or lesser scope, or with greater or lesser detail, than as set forth in this Deed of Trust, on behalf of the Grantor. The Grantor also hereby ratifies its authorization for Chapman and Cutler LLP, the Beneficiary and/or the Trustee and its agents or counsel to have filed in any jurisdiction any Uniform Commercial Code financing statements or amendments thereto if filed prior to the Closing Date. The Grantor shall not terminate, amend or file a correction statement with respect to any financing statement or fixture filing filed pursuant to this Security Agreement and/or this Deed of Trust without the Beneficiary’s and/or the Trustee’s prior written consent.

Section 2.21. After-Acquired Property. Any and all property hereafter acquired which is of the kind or nature described in the Granting Clauses hereof and is or intended to become a part thereof, shall ipso facto, and without any further conveyance, assignment or act on the part of the Grantor or the Beneficiary become and be, subject to the lien of this Deed of Trust as fully and completely as though specifically described herein; but nevertheless the Grantor shall from time to time, if requested by the Beneficiary, execute and deliver any and all such further assurances, conveyances and assignments thereof as the Beneficiary may reasonably require for the purpose of expressly and specifically subjecting to the lien of this Deed of Trust any and all such property.

Section 2.22. Environmental Indemnity . Except as otherwise disclosed by that certain Phase I Environmental Site Assessment, Leased Properties Exhibits A-1 through A-3, Dayton, Texas, dated as of September 19, 2014, prepared by Wilson & Company, Inc., and the addendum thereto dated November 26, 2014, which report and addendum the Grantor furnished to Beneficiary prior to the date hereof, the Grantor represents that it has no knowledge of any current or previous use of the Property which would lead a responsible person to suspect that any Hazardous Material was deposited, stored, released, disposed of or placed upon, about or under the Property, and Grantor shall enforce the terms of the Lease with respect to the handling, storage, release or disposal of any Hazardous Material on the Property. Further, the Grantor agrees to defend, indemnify and hold the Trustee and the Beneficiary harmless from and against any and all costs, penalties, damages, expenses, and/or liabilities (including reasonable attorneys’ fees) which Beneficiary may suffer as a result of a claim, suit, or action regarding the existence (or claimed existence) on or under the Granted Property of any Hazardous Material (whether caused by the Grantor, any Indemnitor or the Tenant under the Lease or any other party, except the Beneficiary), and/or regarding the removal, remediation and clean-up of same.

Section 2.23. Separate Identity. The Grantor will maintain books, records, financial statements and bank accounts separate from those of its affiliates and any constituent party and the Grantor will file its own tax returns. The Grantor shall maintain its books, records, resolutions and agreements as official records. The Grantor will be, and at all times will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any affiliate of the Grantor or any constituent party of the Grantor, or any affiliate of any constituent party), and shall conduct business in its own name and shall maintain and utilize separate invoices and checks. The Grantor shall correct any known misunderstanding regarding its status as a separate entity and shall not identify itself or any of its affiliates as a division or part of the other. The Grantor will 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. Neither the Grantor nor any constituent party will seek or effect the liquidation, dissolution, winding up, consolidation or merger, in whole or in part, of the Grantor. The Grantor will not commingle the funds and other assets of the Grantor with those of any affiliate or constituent party, or any affiliate of any constituent party, or any other person. The Grantor has and will 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, or any affiliate of any constituent party, or any other person. The Grantor does not and will not hold itself out to be responsible for the debts or obligations of any other person.

Section 2.24. General Indemnity . In addition to any other indemnifications provided herein, or in the other Operative Agreements, the Grantor will, at its sole cost and expense protect, defend, indemnify and save harmless the Trustee and the Beneficiary on an after-tax basis from and against all liabilities, losses, damages, demands, claims, obligations, suits or other proceedings (including, causes of action, litigation and defenses), settlement proceeds, fines, penalties, assessments, citations, directives, judgments, fees, costs, disbursements or other expenses of any kind or of any nature whatsoever (including, reasonable attorneys’, consultants’, and experts’ fees and disbursements actually incurred in investigating, defending, settling or prosecuting

Exhibit 10.4

any demand, claim, obligation, suit or other similar proceeding (collectively, “Indemnified Liabilities” ) (except to the extent caused solely by the gross negligence or willful misconduct of the Trustee or the Beneficiary, as applicable) which may be imposed on, incurred by or asserted or awarded against the Trustee or the Beneficiary because of (i) its interest in or ownership of the Operative Agreements, the Granted Property or receipt of any Rents; (ii) any accident, injury to or death of persons or loss of or damage to property occurring in, on or about the Granted Property or on the adjoining sidewalks, curbs, adjacent property or adjacent parking areas, streets or ways; (iii) any use, non-use or condition in, on or about the Granted Property or on adjoining sidewalks, curbs, adjacent property or adjacent parking areas, streets or ways; (iv) any failure on Grantor’s part to perform or comply with any of the terms of the Operative Agreements; (v) the performance of any labor or services or the furnishing of any materials or other property in respect of the Granted Property; (vi) to the extent not covered by insurance, any personal injury (including wrongful death) or property damage (real or personal) arising out of or related to Hazardous Materials or asbestos; (vii) the Granted Property’s failure to comply with any legal requirements; (viii) the occupation, condition, operation, service, design, maintenance or management of the Granted Property; and (ix) any tax, duty, assessment or other charge imposed by any governmental authority on the making and recording of this Deed of Trust. Any Indemnified Liabilities payable to the Trustee or the Beneficiary because of the application of this Section 2.24 will be secured by this Deed of Trust and will become immediately due and payable and will bear interest at the Default Rate from the date such Indemnified Liability is sustained by the Trustee and/or the Beneficiary until paid. The Grantor’s obligations and liabilities under this Section 2.24 will survive any termination, satisfaction or assignment of the Operative Agreements and the exercise by the Trustee and/or the Beneficiary of any of its rights or remedies under the Operative Agreements including, the acquisition of the Granted Property by foreclosure or a conveyance in lieu of foreclosure as to events occurring prior thereto.

Section 2.25. No Forfeiture. The Grantor represents and warrants to the Beneficiary that, as of the Closing Date, the Grantor has not committed any act or omission affording any governmental authority the right of forfeiture against the Granted Property or any monies paid in performance of the Grantor’s obligations under the Operative Agreements. The Grantor agrees not to commit, permit or suffer to exist any act, omission or circumstance affording such right of forfeiture. In furtherance thereof, the Grantor indemnifies the Trustee and the Beneficiary and agrees to defend and hold the Trustee and the Beneficiary harmless from and against any costs because of the breach of the agreements or the representations and warranties set forth in this Section 2.25.

Section 2.26. Defeasance. The Grantor may defease the aggregate principal amount of the Note outstanding in whole but not in part at any time before the Maturity Date, but only on a monthly payment date which is not less than thirty (30) days following written notice to the Beneficiary, subject to the terms and conditions contained in the Defeasance Rider attached to the Note (the “Defeasance Rider” ). Provided no monetary or material Default or any Event of Default exists, the Grantor may obtain the release of the Granted Property from the lien of the Deed of Trust upon the satisfaction of the conditions precedent set forth in the Defeasance Rider.

Section 2.27. Maintenance of Rating. The Grantor, at Grantor’s sole expense, shall cause a credit rating for the Trust Certificates to be issued by the Active Rating Agency and shall provide written evidence of such rating to be provided to the Beneficiary no later than the date that is sixty (60) days after each anniversary or the Closing Date.


SECTION 3.	POSSESSION, USE AND RELEASE OF PROPERTY.

Section 3.1. The Grantor’s Right of Possession . Provided no Default or Event of Default has occurred and is continuing, the Grantor shall be permitted to remain in full possession, enjoyment and control of the Granted Property subject always to the observance and performance of the terms of this Deed of Trust and the other Operative Agreements. It is expressly understood that the use and possession of the Granted Property by the Tenant or any of its permitted subtenants under and subject to the Lease shall not constitute a violation of this Section 3.1.

Section 3.2. Release of Granted Property - Event of Loss and Prepayment of Note. Upon the occurrence of any Event of Loss in respect of the Granted Property, the Grantor shall give the Beneficiary, within sixty (60) days after the occurrence thereof, written notice of such Event of Loss, which notice shall specify whether (i) the Grantor shall, or shall cause the Tenant to restore the Granted Property as provided in the Lease and the Grantor has applied to the issuer of the policy described in Section 2.15(a)(3) hereof for payment of the amounts equal to any reduction in rent resulting from such condemnation or (ii) the Tenant will terminate the Lease as provided therein and the Grantor has applied to the issuer of the policy described in Section 2.15(a)(3) for distribution of proceeds to prepay the Note in accordance with Section 4.1 hereof. In the event such notice specifies that the Grantor will make such prepayment, then the Trustee and Beneficiary shall execute a release in respect of the Granted Property upon receipt of such prepayment in full and all other Indebtedness Hereby Secured.

Exhibit 10.4

Section 3.3. Eminent Domain. The Grantor, immediately upon obtaining know-ledge of the institution of any proceedings for the condemnation of the Granted Property or any portion thereof, shall notify the Beneficiary of the pendency of such proceedings. The Beneficiary may participate in any such proceedings, and the Grantor from time to time will deliver or cause to be delivered to the Beneficiary all instruments requested by it to permit such participation. In the event of such condemnation proceedings, the award or compensation payable to the Grantor shall be paid to the Beneficiary, and such award or compensation shall be retained by the Beneficiary as part of the Granted Property and applied in accordance with Section 4.1(a)(i) or (ii) hereof; provided that, if such application results in only a partial prepayment of the Note and the Lease remains in effect, the amortization schedule on the Note will be adjusted to take into account any reduction in rent under the Lease. The Beneficiary shall be under no obligation to question the amount of the award or compensation and the Beneficiary may accept any such award or compensation. In any such condemnation proceedings the Beneficiary may be represented by counsel, whose reasonable costs and disbursements shall be paid by the Grantor.


SECTION 4.	APPLICATION OF INSURANCE AND CERTAIN OTHER MONEYS RECEIVED BY THE BENEFICIARY.

Section 4.1. Insurance Proceeds and Condemnation Awards. (a) Subject to Section 4.4 hereof, the amounts received by or payable to the Beneficiary from time to time which constitute insurance proceeds in respect of any damage to or destruction or condemnation of the Granted Property or any part thereof, condemnation awards or compensation covering the Granted Property (less the actual costs, fees and expenses incurred in the collection thereof), proceeds from the Special Risk Policy shall be held by the Beneficiary as part of the Granted Property and shall be applied by the Beneficiary as follows:

(i) if a casualty occurs which results in a termination of the Lease, or if a condemnation occurs which results in the termination of the Lease (in either case as evidenced by a certificate of the Tenant detailing the same) and the Grantor shall be required to prepay the Note pursuant to Section 2.12 of this Deed of Trust, such proceeds, award or compensation, as the case may be, shall be applied in payment and satisfaction of the outstanding principal and accrued interest on the Note to the date of payment upon the terms and in the manner provided in Section 2.12 of this Deed of Trust and other amounts due hereunder or under the other Operative Documents, and the balance, if any, of any such proceeds shall be paid to the Grantor; or

(ii) if a casualty or condemnation occurs which does not result in the termination of the Lease and the Grantor or the Tenant shall be required to repair, rebuild or restore the Granted Property as required pursuant to the Lease, all casualty insurance proceeds resulting from such casualty and/or all condemnation awards and condemnation insurance proceeds resulting from such condemnation shall be paid over by the Beneficiary to the Grantor (or as the Grantor may direct from time to time) upon a written application of the Grantor and accompanied by such evidence in reasonable detail as may be satisfactory to the Beneficiary supporting such application for the purpose of paying, or reimbursing the Grantor for the payment of, the reasonable cost, as shown by such certificate, of repairing, rebuilding or restoring part or all of the Granted Property damaged, destroyed or taken ( “Restoration” ), but only for and to the extent that the Grantor shows by such evidence of costs that the proceeds, award or compensation ( “Restoration Funds” ) remaining on deposit with the Beneficiary, together with any additional funds irrevocably allocated or otherwise provided for in a manner satisfactory to the Beneficiary for such purpose, shall be sufficient to complete such Restoration and restore the Granted Property (as nearly as practicable) at least to the market value and condition which existed immediately prior to the damage, destruction, condemnation or taking, as the case may be, free from liens or encumbrances except Permitted Encumbrances. The Grantor shall deliver to the Beneficiary any additional funds needed to complete the Restoration prior to the disbursement of any Restoration Funds. Every such application for the payment of such proceeds, award or compensation shall state that no Event of Default has occurred and is continuing. Any proceeds in excess of the amount needed for Restoration remaining after the Restoration has been completed shall be (i) if the amount of rent payable under the Lease has been reduced as a result of such condemnation, such amounts shall be held by the Beneficiary and at the option of the Beneficiary either (y) applied to future payments on the Note as they come due (or as otherwise required to satisfy any obligations of the Grantor under any of the Operative Agreements) to the extent necessary after the application of each rent payment thereafter received or (z) applied to the outstanding principal (without premium) and interest then due on the Note ( provided that, if amounts are applied to principal, the amortization schedule on the Note shall be adjusted to, if possible, avoid a future payment default while at the same time amortize the outstanding principal on the Note in full by the original maturity date of the Note) or (ii) if the amount of rent payable under the Lease has not been so reduced as a result of such condemnation and so long as no Default or Event of Default is then existing, such amounts (after application to any other amounts the due hereunder or under any of the other Operative Documents) shall be disbursed to the Grantor. The Beneficiary shall receive a supplement hereto, as insured by appropriate title insurance acceptable to the Beneficiary.

Exhibit 10.4

(b) Subject to Section 2.15(b) hereof with respect to adjustments of losses, any appraisal or adjustment of such loss or any settlement or payment of indemnity therefor which shall be agreed upon between the Grantor and the relevant insurance company shall be accepted by the Beneficiary.

(c) The Special Risk Insurer shall have been given the right, but not the obligation, to participate as an interested party in any proceedings which may result in a Claim (as defined in the Special Risk Policy) and the Grantor shall take all actions necessary to enable the Special Risk Insurer to so participate including, without limitation, in relation to proceedings with any Governmental Entity (as defined in the Special Risk Policy) relating to the Event of Loss (as defined in the Special Risk Policy), and any award relating thereto, and in relation to any negotiations or proceedings to determine whether the Scheduled Lease Payments (as defined in the Special Risk Policy) may be abated or terminated under the Lease on account of an Event of Loss.

Section 4.2. Title Insurance. Any moneys received by the Beneficiary as payment for any loss under any policy of title insurance which was delivered by the Grantor shall become part of the Granted Property and shall be paid and applied in the same manner contemplated by Section 5.3 hereof.

Section 4.3. Investment of Insurance Proceeds and Condemnation Awards or Compensation . All insurance proceeds, condemnation awards or compensation received by the Beneficiary as payment for any casualty occurrence or condemnation relating to the Granted Property under any policy of insurance or as an award or compensation for the taking in condemnation or other eminent domain proceedings relating to the Granted Property or any part thereof which is to be disbursed pursuant to Section 4.1(a) hereof shall, at the written request of the Grantor, be invested or reinvested by the Beneficiary in (a) direct obligations of the United States of America maturing in not more than ninety (90) days from the date of such investment, (b) commercial paper maturing within two hundred and seventy (270) days from the date of acquisition and rated in the highest rating classification by at least one national rating agency, or (c) certificates of deposit of commercial banks in the United States of America with capital and surplus of $100,000,000 or more maturing in not more than five (5) days from the date of such investment. Any amounts earned on such investments shall accrue to the benefit of the Grantor and shall be disbursed in accordance with the terms of Section 4.1 hereof. Upon a written request of the Grantor in accordance with the terms of this Deed of Trust, or at any time when the Beneficiary shall determine that cash is required pursuant to Section 4.1 hereof, the Beneficiary shall sell all or any designated part of such investments at the then market price therefor and shall pay and apply the proceeds in accordance with the terms of Section 4.1.

Section 4.4. Application If Event of Default Exists. Notwithstanding anything to the contrary contained in this Section 4, if an Event of Default has occurred and is continuing to the knowledge of the Beneficiary, all amounts received by the Beneficiary under this Deed of Trust shall be applied in the manner provided for in Section 5 hereof in respect of proceeds and avails of the Granted Property.


SECTION 5.	DEFAULTS AND REMEDIES THEREFOR.

Section 5.1. Events of Default. Any one or more of the following shall constitute an Event of Default as the term is used herein:

(a) Default in the payment of interest or principal or premium, if any, on the Note when the same shall have become due and such Default shall continue for five (5) days; or

(b) Default shall occur in the observance and performance of any covenant or agreement contained in Section 2.3, 2.4, 2.15 or 2.18(b) hereof; or

(c) Default shall occur in the observance or performance of any other provision of this Deed of Trust not specifically described in the foregoing subparagraphs of this Section 5.1 which is not remedied within thirty (30) days after the earlier of (i) written notice thereof from the Beneficiary or the Escrow Agent to the Grantor, or (ii) the first date on which an officer, member, partner, trustee or beneficial owner of the Grantor shall have actual knowledge of such a Default; or

(d) Default shall occur under the Lease and such default shall continue beyond the period of grace, if any, allowed with respect thereto; or

(e) An Escrow Shortfall shall occur and continue beyond the period of grace, if any, allowed under the Escrow and Servicing Agreement; or

Exhibit 10.4

(f) If any statement, certification, representation or warranty made by the Grantor herein or in any other Operative Agreement, or made by or on behalf of the Grantor in any statement or certificate furnished by or on behalf of the Grantor in connection with the consummation of the issuance and sale of the Note or furnished by or on behalf of the Grantor or pursuant to the Note Purchase Agreement or any other Operative Agreement, proves untrue in any material respect as of the date of the issuance or making thereof; or

(g) [Intentionally Omitted]; or

(h) If final judgment for the payment of money shall be rendered against the Grantor and the Grantor shall not discharge or cause the same to be discharged within ninety (90) days from the entry thereof or shall not appeal therefrom or from the order, decree or process upon which or pursuant to which said judgment was granted, based or entered and secure a stay of execution pending such appeal and appropriate reserves established; or

(i) If the Grantor defaults under any other mortgage or security agreement covering any part of the Granted Property whether it be superior or junior in lien to this Deed of Trust and the same is accelerated as a result of such default; or

(j) The Grantor: (1) admits in writing its inability to pay its debts generally as they become due; (2) files a petition in bankruptcy or a petition to take advantage of any insolvency act; (3) makes an assignment for the benefit of creditors generally; (4) consents to, or acquiesces in, the appointment of a receiver, liquidator or trustee of itself or of the whole or any substantial part of its properties or assets; (5) files a petition or answer seeking reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under the federal bankruptcy laws or any other comparable federal or state statute or law; (6) has a court of competent jurisdiction enter an order, judgment or decree appointing a receiver, liquidator or trustee of the Grantor, or of the whole or any substantial part of the property or assets of the Grantor; (7) has a petition filed against it seeking reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under the federal bankruptcy laws or any other comparable federal or state statute or law and such petition shall remain undismissed for ninety (90) days; (8) under the provisions of any other law for the relief or aid of debtors, has any court of competent jurisdiction assume custody or control of the Grantor or of the whole or any substantial part of its property or assets; (9) has an attachment or execution levied against any substantial portion of any property of the Grantor which is not discharged or dissolved by a bond within ten (10) business days; (10) ceases to exist, is liquidated, or is dissolved; or (11) if any of the foregoing events occurs with respect to the Tenant; or

(k) The Lease or any other Operative Document shall cease to be in full force and effect for any reason whatsoever, including, without limitation, a determination by any governmental body or court that such agreement is invalid, void or unenforceable or the Tenant shall contest or deny the validity or enforceability of any of its obligations under the Lease; or

(l) An event of default beyond any applicable grace, notice and cure periods shall occur under or with respect to any provision of any Operative Agreement, which event of default is not specifically described in any other subparagraph of this Section 5.1.

Section 5.2. Remedies . When any Event of Default described in subparagraph (j) of Section 5.1 has occurred, then the Note shall immediately become due and payable (together with the Make-Whole Amount) without presentment, demand or notice of any kind and when any Event of Default has occurred and is continuing, the Beneficiary (or the Trustee if required by law) may exercise any one or more or all, and in any order, of the remedies hereinafter set forth, it being expressly understood that no remedy herein conferred is intended to be exclusive of any other remedy or remedies; but each and every remedy shall be cumulative and shall be in addition to every other remedy given herein or now or hereafter existing at law or in equity or by statute:

(a) The Beneficiary (or the Trustee if required by law) may, by notice in writing to the Grantor declare the entire unpaid balance of the Note to be immediately due and payable; and thereupon all such unpaid balance, together with all accrued interest thereon and premium, if any, shall be and become immediately due and payable without any presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived. Upon the Note becoming due and payable as a result of any Event of Default as aforesaid, the Grantor will forthwith pay to the Beneficiary the entire principal and interest accrued on the Note and, to the extent permitted by law and as liquidated damages and not as a penalty, an additional amount equal to the then applicable Make-Whole Amount determined as of the date on which the Note shall so become due and payable. No course of dealing on the part of the Beneficiary nor any delay or failure on the part of the Beneficiary to exercise any right shall operate as a waiver of such right or otherwise prejudice

Exhibit 10.4

the Beneficiary’s rights, powers and remedies. The Grantor further agrees, to the extent permitted by law, to pay to the Beneficiary and the Trustee all costs and expenses incurred by it in the collection of the Note upon any default hereunder or thereon, including the reasonable compensation to the Beneficiary’s attorneys and the Trustee’s attorneys for all services rendered in connection therewith.

(b) Subject always to the then existing rights, if any, of the Tenant or any permitted subtenant or assignee under the Lease, the Beneficiary (or the Trustee if required by law) personally or by agents or attorneys may, to the extent permitted by law (i) enter into and take possession of all or any part of the Granted Property, and may forthwith use, operate, manage, insure, repair and improve the Granted Property and take any other action which, in the Beneficiary’s judgment, is necessary or proper to conserve the value of the Granted Property, (ii) collect and receive all earnings, revenues, rents, issues, profits and income from the Granted Property or any part thereof (and for such purpose the Grantor does hereby irrevocably constitute and appoint the Beneficiary (or the Trustee if required by law) its true and lawful attorney-in-fact for it and in its name, place and stead to receive, collect and receipt for all of the foregoing, the Grantor irrevocably acknowledging that any payment made to the Beneficiary hereunder shall be a good receipt and acquittance against the Grantor to the extent so made), (iii) pay all principal charges including taxes and assessments levied thereon and operating and maintenance expenses and all disbursements and liabilities of the Grantor hereunder and (iv) apply the net proceeds arising from any such operation of the Granted Property as provided in Section 5.3 hereof in respect of the proceeds of a sale of the Granted Property. The right to enter and take possession of the Granted Property and use any personal property therein, to manage, operate and conserve the same, and to collect the rents, issues and profits thereof, shall be in addition to all other rights or remedies of the Beneficiary (or the Trustee, if required by law) hereunder or afforded by law, and may be exercised concurrently therewith or independently thereof. The expenses (including any reasonable receiver’s fees, counsel fees, costs and agent’s compensation) incurred pursuant to the powers herein contained shall be secured hereby which the Grantor promises to pay upon demand together with interest at the Default Rate. The Beneficiary shall not be liable to account to the Grantor for any action taken pursuant hereto other than to account for any rents actually received by the Beneficiary. Without taking possession of the Granted Property, the Beneficiary (or the Trustee, if required by law) may, in the event the Granted Property becomes vacant or is abandoned, take such steps as it deems appropriate to protect and secure the Granted Property (including hiring watchmen therefor) and all costs incurred in so doing shall constitute so much additional Indebtedness Hereby Secured payable upon demand with interest thereon at the Default Rate.

(c) The Beneficiary (or the Trustee, if required by law) may, if at the time such action may be lawful and always subject to compliance with any mandatory legal requirements, either with or without taking possession and either before or after taking possession, and without instituting any legal proceedings whatsoever, and having first given notice of such sale to the Grantor at least thirty (30) days prior to the date of such sale and having given any other notice which may be required by law, sell and dispose of said Granted Property or any part thereof at public auction or private sale to the highest bidder, which may be the Grantor in one lot as an entirety or in separate lots (the Grantor for itself and for all who may claim by, through or under it hereby expressly waiving and releasing all rights to have the Granted Property marshalled to the extent permitted by law), and either for cash or on credit and on such terms as the Beneficiary may determine and at any place (whether or not it be the location of the Granted Property or any part thereof) designated in the notice above referred to. Any such sale or sales may be adjourned from time to time by announcement at the time and place appointed for such sale or sales or for any such adjourned sale or sales, without further published notice.

(d) The Beneficiary (or the Trustee, if required by law) may proceed to protect and enforce its rights by a suit or suits in equity or at law, or for the specific performance of any covenant or agreement contained herein or in the Note, or in aid of the execution of any power herein or therein granted, or for the foreclosure of this Deed of Trust, or for the enforcement of any other appropriate legal or equitable remedy. Upon the bringing of any suit to foreclose this Deed of Trust or to enforce any other remedy available hereunder, the plaintiff shall be entitled as a matter of right, without notice and without giving bond to the Grantor or anyone claiming under, by or through it, and without regard to the solvency or insolvency of the Grantor or the then value of the Granted Property, to apply to an appropriate court to have a receiver appointed of all the Granted Property and of the earnings, income, rents, issues, profits and proceeds thereof, with such power as the court making such appointment shall confer and the Grantor does hereby irrevocably consent to such appointment.

(e) In case of any sale of the Granted Property, or of any part thereof, pursuant to any judgment or decree of any court or otherwise in connection with the enforcement of any of the terms of this Deed of Trust, the Beneficiary (or the Trustee, if required by law) may bid and become the purchaser, and the purchaser or purchasers, for the purpose of making settlement for or payment of the purchase price, shall be entitled to turn in and use the Note and any claims for interest and premium matured and unpaid thereon, in order that there may be credited as paid on the purchase price

Exhibit 10.4

the sum apportionable and applicable to the Note, including principal and interest and premium thereof, out of the net proceeds of such sale after allowing for the proportion of the total purchase price required to be paid in actual cash. If at any foreclosure proceeding the Granted Property shall be sold for a sum less than the total amount of indebtedness for which judgment is therein given, the Beneficiary shall be entitled to the entry of a deficiency decree against the Grantor and against the property of the Grantor for the amount of such deficiency.

(f) The Beneficiary (or the Trustee, if required by law) shall have any and all rights and remedies (including, without limitation, extra judicial power of sale) provided to a secured party by the Uniform Commercial Code with respect to any and all parts of the Granted Property which are and which are deemed to be governed by the Uniform Commercial Code. Without limiting the generality of the foregoing, the Beneficiary (or the Trustee, if required by law) shall, with respect to any part of the Granted Property constituting property of the type in respect of which realization on a lien or security interest granted therein is governed by the Uniform Commercial Code, have all the rights, options and remedies of a secured party under the Uniform Commercial Code, including, without limitation, the right to the possession of any such property, or any part thereof, and the right to enter without legal process any premises where any such property may be found. Any requirement of said Uniform Commercial Code for reasonable notification shall be met by mailing written notice to the Grantor at its address set forth in Section 6.3 at least thirty (30) days prior to the sale or other event for which such notice is required.

(g) The provisions of this Section 5.2 are subject to the condition that if at any time after the Note has been declared due and payable by reason of the occurrence of any Event of Default described in Section 5.1, then in every such case the Beneficiary may at its option by notice in writing sent to the Grantor, rescind and annul any such declaration and its consequences with respect to the Note and in any such event the Grantor, the Trustee and the Beneficiary shall be restored to their former positions and rights hereunder, respectively; provided that at the time such declaration is annulled and rescinded:

(i) no judgment or decree has been entered for the payment of any monies due pursuant to the Note or this Deed of Trust;

(ii) all arrears of interest upon the Note and all other sums payable under the Note and under this Deed of Trust (except any principal, interest or premium on the Note which has become due and payable solely by reason of such declaration under Section 5.2) shall have been duly paid; and

(iii) each and every other Default and Event of Default shall have been made good, cured or waived pursuant to Section 5.1;

and provided further, that no such rescission and annulment shall extend to or affect any subsequent Default or Event of Default or impair any right consequent thereto.

Section 5.3. Application of Proceeds . The purchase money proceeds and/or avails of any sale of the Granted Property, or any part thereof, and the proceeds and the avails of any remedy hereunder and/or amounts held pursuant to Section 4 hereof shall be paid to and applied as follows:

(a) first, to the payment of costs and expenses of foreclosure or suit, if any, and of such sale, and to the extent permitted by applicable law, the reasonable compensation of the Beneficiary, its agents, attorneys and counsel and of all proper expenses, liability and advances incurred or made hereunder by the Beneficiary, and of all taxes, assessments or liens superior to the lien of these presents, except any taxes, assessments or other superior lien subject to which said sale may have been made; and

(b) second, to the amount then owing or unpaid on the Note for principal, premium, if any, and interest; and in case such proceeds shall be insufficient to pay in full the whole amount so due, owing or unpaid upon the Note, then to the Beneficiary, with application on the Note to be made, first, to unpaid premium, if any, second, to the unpaid interest thereon, and third, to unpaid principal thereof; and

(d) fourth, to the payment of the surplus, if any, to the Grantor, its successors and assigns, or to whomsoever may be lawfully entitled to receive the same.

Exhibit 10.4

Section 5.4. Waiver of Extension, Appraisement and Stay Laws . The Grantor covenants that, upon the occurrence of an Event of Default and the acceleration of the Note pursuant to Section 5.2 and to the extent that such rights may then be lawfully waived, it will not at any time thereafter insist upon or plead, or in any manner whatever claim or take any benefit or advantage of, any stay or extension or moratorium law now or at any time hereafter in force, or claim, take or insist upon any benefit or advantage of or from any law now or hereafter in force providing for the valuation or appraisement of the Granted Property or any part thereof prior to any sale or sales thereof to be made pursuant to any provision herein contained, or to the decree, judgment or order of any court of competent jurisdiction or, after confirmation of any such sale or sales claim or exercise any right under any statute now or hereafter made or enacted by any state or otherwise to redeem the property so sold or any part thereof, and hereby expressly waives for itself and on behalf of each and every Person, all benefit and advantage of any such law or laws which would otherwise be available to any such Person in connection with the enforcement of any of the Beneficiary’s remedies hereunder; and covenants that it will not in connection with any such enforcement proceedings invoke or utilize any such law or laws or otherwise hinder, delay or impede the execution of any power herein granted and delegated to the Beneficiary but will suffer and permit the execution of every such power as though no such law or laws had been made or enacted. The Grantor hereby waives any and all rights of redemption from sale under any order or decree of foreclosure pursuant to rights herein granted, on behalf of the Grantor, and each and every Person acquiring any interest in, or title to the Granted Property described herein subsequent to the date of this Deed of Trust, and on behalf of all other Persons to the extent permitted by applicable law.

Any sale, whether under any power of sale hereby given or by virtue of judicial proceedings, shall operate to divest all right, title, interest, claim and demand whatsoever, either at law or in equity, of the Grantor in and to the property sold and shall be a perpetual bar, both at law and in equity, against the Grantor, its successors and assigns, and against any and all persons claiming the property sold or any part thereof under, by or through the Grantor, its successors or assigns.

Section 5.5. Costs and Expenses of Foreclosure . In any suit to foreclose the lien hereon there shall be allowed and included as additional Indebtedness Hereby Secured in the decree for sale all reasonable expenditures and expenses which may be paid or incurred by or on behalf of the Beneficiary for attorney’s fees, appraiser’s fees, outlays for documentary and expert evidence, stenographic charges, publication costs and costs (which may be estimated as the items to be expended after the entry of the decree) of procuring all such abstracts of title, title searches and examination, guarantee policies, and similar data and assurances with respect to title as the Beneficiary may deem to be reasonably necessary either to prosecute any foreclosure action or to evidence to the bidder at any sale pursuant thereto the true condition of the title to or the value of the Granted Property, all of which expenditures shall become so much additional Indebtedness Hereby Secured which the Grantor agrees to pay and all of such shall be immediately due and payable with interest thereon from the date of expenditure until paid at the Default Rate.

Section 5.6. Delay or Omission Not a Waiver . No delay, failure or omission of the Beneficiary to exercise any right, power or remedy arising from any default on the part of the Grantor shall exhaust or impair any such right or power or prevent its exercise during the continuance of such default. No waiver by the Beneficiary of any such default, whether such waiver be full or partial, shall extend to or be taken to affect any subsequent default, or to impair the rights resulting therefrom, except as may be otherwise provided herein. No right, power or remedy hereunder is intended to be exclusive of any other right, power or remedy but each and every right, power and remedy shall be cumulative and in addition to any and every other right, power and remedy given hereunder or otherwise existing. Nor shall the giving, taking or enforcement of any other or additional security, collateral or guaranty for the payment of the Indebtedness Hereby Secured operate to prejudice, waive or affect the security of this Deed of Trust or any rights, powers or remedies hereunder; nor shall the Beneficiary be required to first look to, enforce or exhaust such other or additional security, collateral or guaranties.

Section 5.7. Restoration of Positions . If the Beneficiary has instituted any proceeding to enforce any right or remedy under this Deed of Trust by foreclosure, entry or otherwise and such proceeding has been discontinued or abandoned for any reason or has been determined adversely to the Beneficiary, then and in every such case the Grantor, the Trustee and the Beneficiary shall, subject to any determination in such proceeding, be restored to their former positions hereunder, and thereafter all rights and remedies of the Beneficiary shall continue as though no such proceedings had been instituted.

Section 5.8. Note to Become Due upon Sale . Upon any sale of the Property or transfer of a controlling interest in the Grantor under or by virtue of this Deed of Trust, except as permitted under Section 2.3(g) or (h) hereof, whether pursuant to foreclosure, power of sale or otherwise, the entire unpaid principal amount of the Note shall, if not previously declared due and payable, immediately become due and payable, together with interest accrued thereon and premium, if any, and all other Indebtedness Hereby Secured, anything contrary in this Deed of Trust, the Note or any other instrument serving the Note notwithstanding.

Exhibit 10.4


SECTION 6.	MISCELLANEOUS.

Section 6.1. Successors and Assigns . Whenever any of the parties hereto is referred to, such reference shall be deemed to include the successors and assigns of such party; and all the covenants, premises and agreements in this Deed of Trust contained by or on behalf of the Grantor, or by or on behalf of the Beneficiary, shall bind and inure to the benefit of the respective successors and assigns of such parties whether so expressed or not.

Section 6.2. Severability . The unenforceability or invalidity of any provision or provisions of this Deed of Trust shall not render any other provision or provisions herein contained unenforceable or invalid.

Section 6.3. Addresses for Notices and Demands . All communications provided for herein shall be in writing and shall be deemed to have been given (unless otherwise required by the specific provisions hereof in respect of any matter) when received (or refused) delivered personally or when deposited in the United States mail, registered or certified, postage prepaid, or by prepaid overnight air courier, addressed as follows:

If to the Grantor: TRT LeaseCo, LLC

c/o BNSF-Delpres Investments, Ltd.

100 Sheppard Avenue East, Suite 502

Toronto, ON M2N 6N5

Canada

Attention: Larry Krauss

with a copy to:

c/o BNSF-Delpres Investments, Ltd.

10290 West Atlantic Avenue, #480127

Delray Beach, FL 33448

Attention: Leo Schwartz

with a copy to:

Dain, Torpy, Le Ray, Wiest & Garner, P.C.

745 Atlantic Avenue, 5th Floor

Boston, Massachusetts 02111

Attention: Tim Pecci

If to the Beneficiary: Wells Fargo Bank Northwest, N.A., as trustee

299 S. Main Street, 5th Floor

MAC: U1228-051

Salt Lake City, Utah 84111

Attention: Corporate Trust Lease Group

or as to either party at such other address as such party may designate by notice duly given in accordance with this Section to the other party.

Section 6.4. Headings and Table of Contents . The headings of the sections of this Deed of Trust and the table of contents are inserted for purposes of convenience only and shall not be construed to affect the meaning or construction of any of the provisions hereof.

Section 6.5. Release of Deed of Trust. The Beneficiary shall release this Deed of Trust and the lien hereof by proper instrument or instruments upon payment in full of all Indebtedness Hereby Secured.

Section 6.6. Counterparts . This Deed of Trust may be executed, acknowledged and delivered in any number of counterparts, each of such counterparts constituting an original but all together only one Deed of Trust.

Exhibit 10.4

Section 6.7. Successor Trustee . The Beneficiary may, at any time, by instrument in writing, appoint a successor or successors to, or discharge and appoint a new Trustee in the place of, any Trustee named herein or acting hereunder, which instrument, executed and acknowledged by the Trustee, and recorded in the office of the County Recorder of the county wherein the Granted Property is situated, shall be conclusive proof of the proper substitution of such successor or successors or new Trustee, who shall have all the estate powers, duties, rights and privileges of the predecessor Trustee.

Section 6.8. Governing Law. This Deed of Trust should be construed in accordance with and governed by the laws of the State of Texas.

Section 6.9. Time. Time shall be of the essence for this Deed of Trust.

Section 6.10. Limitations of Liability . Notwithstanding anything to the contrary contained in the Operative Agreements, except as set forth in the Indemnity and Guaranty Agreement, no Person who directly or indirectly owns any membership or other equity interest in the Grantor (each, a “Non-Recourse Person” ) shall have any personal liability for (i) the payment of any sum of money which is or may be payable under the Note or any other Operative Agreement, including, but not limited to, the repayment of the Note or (ii) the performance or discharge of any covenants, obligation or undertakings of the Grantor under any Operative Agreement, and no monetary or deficiency judgment shall be sought or enforced against any Non‑Recourse Person with respect thereto. Nothing in this Section 6.10 is intended to or shall in any way affect or invalidate any lien or security interest created by this Deed of Trust. This Section 6.10 shall not be construed to prohibit the joining of the Grantor in any foreclosure procedure involving the Granted Property. This Section 6.10 shall not in any way affect the obligations of the Tenant under the Lease, any other tenant under the Other Leases or any Lease Guarantor under any Lease Guaranty.

Section 6.11. Expenses, Stamp Tax Indemnity . Whether or not the Note is sold, the Grantor will pay all reasonable expenses relating to the Operative Agreements, including but not limited to: (i) the cost of reproducing the Operative Agreements; (ii) the reasonable fees and disbursements of Chapman and Cutler LLP, special counsel for the beneficial holder of the Note; (iii) the Beneficiary’s reasonable out-of-pocket expenses; (iv) all recording and filing fees and stamp taxes in connection with the recordation or filing and re-recordation or re-filing of the items referred to in Section 3.1(b) of the Note Purchase Agreement; (v) the reasonable fees and disbursements of the title company referred to in Section 3.2(c) of the Note Purchase Agreement in connection with the issuance of the title insurance policy and the reasonable fees and disbursements of the civil engineer or surveyor which conducted the survey referred to in Section 3.2(b) of the Note Purchase Agreement in connection with the preparation of such survey; (vi) the reasonable fees and disbursements of (a) the Person that prepared the Environmental Assessment referred to in Section 3.2(d) of the Note Purchase Agreement and (b) the Person that prepared the appraisal referred to in Section 3.2(e) of the Note Purchase Agreement; (vii) the reasonable fees and disbursements of the Escrow Agent in connection with its duties under the Escrow and Servicing Agreement; and (viii) all reasonable expenses relating to any amendments, waivers or consents pursuant to the provisions of any of the Operative Agreements, including without limitation, any amendments, waivers or consents resulting from any work-out, restructuring or similar proceedings relating to the performance by the Grantor of its obligations under any of the Operative Agreements or relating to the performance by the Tenant of its obligations under the Lease. The obligations of the Grantor under this Section 6.11 shall survive the payment or prepayment of the Note and the termination of any of the Operative Agreements.

Section 6.12. Cooperation. The Grantor acknowledges that the Beneficiary and its successors and assigns may (a) sell, transfer or assign this Deed of Trust, the Note and the Operative Agreements to one or more investors as a whole loan, in a rated or unrated public offering or private placement, (b) participate the loan (the “Loan” ) secured by this Deed of Trust to one or more investors in a rated or unrated public offering or private placement, (c) deposit this Deed of Trust, the Note and the Operative Agreements 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 any interest therein to investors in a rated or unrated public offering or private placement (the transactions referred to in clauses (a) through (d) are hereinafter referred to as “Secondary Market Transactions” ). The Grantor shall, at Beneficiary’s expense, cooperate in good faith with Beneficiary 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, 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 reasonably acceptable to such other purchasers, participants or investors may require; provided, however, that the Grantor shall not be required to modify any documents evidencing or securing the Loan which 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. The Grantor shall provide such information and documents relating to the Grantor, the Granted Property and the Tenant as Beneficiary shall reasonably request. The Grantor acknowledges that certain information regarding the Loan and the parties thereto and the Granted Property may be included in a private placement memorandum, prospectus or other disclosure documents.

Exhibit 10.4

Section 6.13. No Merger of Estates. There shall be no merger of the Lease or the leasehold estate created thereby with the fee estate in the Granted Property or any part thereof by reason of the same person or entity acquiring or holding, directly or indirectly, any interest in the Lease or the leasehold estate created thereby as well as the fee estate in the Granted Property. Nothing contained in this Section shall be deemed to prohibit the Tenant under the Lease from acquiring the fee interest in the Granted Property, subject, however, to the terms of the preceding sentence and Section 2.3(g) hereof.

Section 6.14. NAIC Filing. The Grantor hereby represents and warrants to, and covenants with, the Trustee and the Beneficiary that as of the date hereof and until such time as the Indebtedness Hereby Secured shall be indefeasibly paid in full, the Grantor will take all such actions and otherwise cooperate with any request made by the Beneficiary, the Trustee or any of their respective special counsel which is reasonably necessary to ensure that the subject transaction shall be eligible for “Schedule D” reporting on the Beneficiary’s NAIC Annual Statement and, if the NAIC determines that the Beneficiary’s investment in the Note is not eligible for such “Schedule D” reporting, the Grantor will take such actions and otherwise cooperate with any request made by the Beneficiary or its counsel which is reasonably necessary to obtain such eligibility; provided , however, that the Beneficiary acknowledges and agrees that the Grantor shall not be required to make any change or amendments which would have a material adverse monetary effect on the Grantor or materially increase the obligations of the Grantor under the Operative Agreements. For purposes of this Section 6.14, any reference to Beneficiary shall also include any beneficial owner of the Beneficiary or any beneficial holder or other holder of the Note or any portion thereof.

Section 6.15. [Intentionally Omitted]

Section 6.16. Usury Savings Clause. Interest on the Indebtedness Hereby Secured secured by this Deed of Trust shall not exceed the maximum amount of non-usurious interest that may be contracted for, taken, reserved, charged, or received under law; any interest in excess of that maximum amount shall be credited on the principal of the Indebtedness Hereby Secured or, if that has been paid, refunded. On any acceleration or required or permitted prepayment, any such excess shall be cancelled automatically as of the acceleration or prepayment or, if already paid, credited on the principal of the Indebtedness Hereby Secured or, if the principal of the debt has been paid, refunded. This provision overrides other provisions in this Deed of Trust and all other Operative Agreement and instruments concerning the Indebtedness Hereby Secured.

Section 6.17. Concerning the Beneficiary. It is expressly understood and agreed by the parties hereto and the holders of the certificates issued under the Declaration that (a) this Agreement is executed and delivered by Beneficiary not in its individual or personal capacity but solely in its capacity as trustee under the Declaration, in the exercise of the powers and authority conferred and vested in it as trustee under the Declaration, subject to the protections, indemnities and limitations from liability afforded to the trustee thereunder; (b) in no event shall Wells Fargo Bank Northwest, National Association, in its individual capacity have any liability for the representations, warranties, covenants, agreements or other obligations of the trust created pursuant to the Declaration (the “Trust” ) (or on behalf of the Trust) hereunder, as to all of which recourse shall be had solely to the Granted Property; (c) nothing contained herein shall be construed as creating any liability on Wells Fargo Bank Northwest, National Association, individually or personally, to perform any expressed or implied covenant, duty or obligation of any kind whatsoever contained herein; and (d) under no circumstances shall Wells Fargo Bank Northwest, National Association, be personally liable for the payment of any fees, costs, indebtedness or expenses of any kind whatsoever or be personally liable for the breach or failure of any obligation, representation, agreement, warranty or covenant whatsoever made or undertaken by purchasers of the certificates of the Trust or the Trust hereunder, except to the extent of Trustee’s willful misconduct, bad faith or gross negligence (or ordinary negligence in connection with the handling of funds).


SECTION 7.	ACCEPTANCE OF TRUST; POWERS AND DUTIES OF TRUSTEE.

The Trustee accepts this trust and it shall be deemed delivered when this Deed of Trust is executed. From time to time, upon written request of Beneficiary and, to the extent required by applicable law presentation of this Deed of Trust for endorsement, and without affecting the personal liability of any person for payment of any indebtedness or performance of any of the Indebtedness Hereby Secured, Beneficiary, or Trustee at Beneficiary’s direction, may, without obligation to do so or liability therefor and without notice: (a) reconvey all or any part of the Granted Property from the lien of this Deed of Trust; (b) consent to the making of any map or plat of the Granted Property; and (c) join in any grant of easement or declaration of covenants and restrictions with respect to the Granted Property, or any extension agreement or any agreement subordinating the lien or charge of this Deed of Trust. Trustee or Beneficiary may from time to time apply to any court of competent jurisdiction for aid and direction in the execution of the trusts and the enforcement of its rights and remedies available under this Deed of Trust, and may obtain orders or decrees directing, confirming or approving acts in the execution of said trusts and the enforcement of said rights and remedies. Trustee has no obligation to notify any party of any pending sale or any action or proceeding (including, but not limited to, actions in which Grantor, Beneficiary or Trustee shall be a party) unless held or commenced and maintained by Trustee under this Deed of

Exhibit 10.4

Trust. Trustee shall not be obligated to perform any act required of it under this Deed of Trust unless the performance of the act is requested in writing and Trustee is reasonably indemnified against all losses, costs, liabilities and expenses in connection therewith.

Section 7.1. Concerning the Trustee. Trustee shall be under no duty to take any action hereunder except as expressly required hereunder or by law, or to perform any act which would involve Trustee in any expense or liability or to institute or defend any suit in respect hereof, unless properly indemnified to Trustee’s reasonable satisfaction. Trustee, by acceptance of this Deed of Trust, covenants to perform and fulfill the trusts herein created, being liable, however, only for gross negligence or willful misconduct, and hereby waives any statutory fee and agrees to accept reasonable compensation, in lieu thereof, for any services rendered by Trustee in accordance with the terms hereof. Trustee may resign at any time upon giving thirty (30) days’ notice to the Grantor and to Beneficiary. Beneficiary may remove Trustee at any time or from time to time and select a successor trustee. In the event of the death, removal, resignation, refusal to act, or inability to act of Trustee, or in its sole discretion for any reason whatsoever Beneficiary may, without notice and without specifying any reason therefor and without applying to any court, select and appoint a successor trustee, by an instrument recorded wherever this Deed of Trust is recorded and all powers, rights, duties and authority of Trustee, as aforesaid, shall thereupon become vested in such successor. Such substitute trustee shall not be required to give bond for the faithful performance of the duties of Trustee hereunder unless required by Beneficiary. The procedure provided for in this paragraph for substitution of Trustee shall be in addition to and not in exclusion of any other provisions for substitution, by law or otherwise.

Section 7.2. Trustee’s Fees. The Grantor shall pay all reasonable costs, fees and expenses incurred by Trustee and Trustee’s agents and counsel in connection with the performance by Trustee of Trustee’s duties hereunder and all such costs, fees and expenses shall be secured by this Deed of Trust.

Section 7.3. Certain Rights. With the approval of Beneficiary, Trustee shall have the right to take any and all of the following actions: (i) to select, employ, and advise with counsel (who may be, but need not be, counsel for Beneficiary) upon any matters arising hereunder, including the preparation, execution, and interpretation of the Notes, this Deed of Trust or the other Operative Agreements, and shall be fully protected in relying as to legal matters on the advice of counsel, (ii) to execute any of the trusts and powers hereof and to perform any duty hereunder either directly or through his/her agents or attorneys, (iii) to select and employ, in and about the execution of his/her duties hereunder, suitable accountants, engineers and other experts, agents and attorneys‑in‑fact, either corporate or individual, not regularly in the employ of Trustee, and Trustee shall not be answerable for any act, default, negligence, or misconduct of any such accountant, engineer or other expert, agent or attorney‑in‑fact, if selected with reasonable care, or for any error of judgment or act done by Trustee in good faith, or be otherwise responsible or accountable under any circumstances whatsoever, except for Trustee’s gross negligence or bad faith, and (iv) any and all other lawful action as Beneficiary may instruct Trustee to take to protect or enforce Beneficiary’s rights hereunder. Trustee shall not be personally liable in case of entry by Trustee, or anyone entering by virtue of the powers herein granted to Trustee, upon the Granted Property for debts contracted for or liability or damages incurred in the management or operation of the Granted Property. Trustee shall have the right to rely on any instrument, document, or signature authorizing or supporting an action taken or proposed to be taken by Trustee hereunder, believed by Trustee in good faith to be genuine. Trustee shall be entitled to reimbursement for actual expenses incurred by Trustee in the performance of Trustee’s duties hereunder and to reasonable compensation for such of Trustee’s services hereunder as shall be rendered.

Section 7.4. Retention of Money. All moneys received by Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated in any manner from any other moneys (except to the extent required by applicable law) and Trustee shall be under no liability for interest on any moneys received by Trustee hereunder.

Section 7.5. Perfection of Appointment. Should any deed, conveyance, or instrument of any nature be required from the Grantor by any Trustee or substitute trustee to more fully and certainly vest in and confirm to the Trustee or substitute trustee such estates rights, powers, and duties, then, upon request by the Trustee or substitute trustee, any and all such deeds, conveyances and instruments shall be made, executed, acknowledged, and delivered and shall be caused to be recorded and/or filed by the Grantor.


SECTION 8.	STATE SPECIFIC PROVISIONS.

The addendum attached hereto ( “Addendum A” ) contains state specific provisions and is hereby made a part of this Deed of Trust. To the extent of any conflict between the terms and provisions of Addendum A and the terms and provisions of this Deed of Trust, the terms and provisions of Addendum A shall govern and control the rights and obligations of the parties.

Exhibit 10.4

[Signatures on Next Page]

Exhibit 10.4

IN WITNESS WHEREOF, the Grantor has caused this Deed of Trust to be executed, all as of the day and year first above written.



		TRT LEASECO, LLC, a Delaware
		limited liability company


	By:
		Name: Leo S. Schwartz
		Title: Vice President

Exhibit 10.4

State of )

) SS

County of )

I, _________________________, a Notary Public in and for the County and State aforesaid, do hereby certify that Leo S. Schwartz to me known, who declared and acknowledged that he is the Vice President of TRT LEASECO, LLC, a limited liability company organized under the laws of the State of Delaware, subscribed to the foregoing instrument, appeared before me this day in person and severally acknowledged that he, being thereunto duly authorized, signed and delivered the said instrument as the free and voluntary act of said limited liability company and as his own free and voluntary act, for the uses and purposes therein set forth.

Given under by hand and notarial seal this ____ day of _____________, 2015.

____________________________

Notary Public

Printed Name:____________________________

(SEAL)

Commission expires:

Exhibit 10.4

DESCRIPTION OF REAL PROPERTY

STATE OF TEXAS)

COUNTY OF LIBERTY)

LEASE EXHIBIT A-1)

FIELD NOTES of a 187.1838 acre tract of land situated in the T. C. Railroad Company Survey No. 39, Abstract 474, the Elizabeth Munson League, Abstract 88 and the G. C. & S. F. Railroad Company Survey No. 21, Abstract 459, all in Liberty County, Texas. Said 187.1838 acres being comprised of the following tracts:

1) part of that certain 9.43 acres (Tract XV), conveyed by Bill Sjolander to CMC Railroad, Inc. by Deed dated January 10, 2008 and recorded under County Clerk's File No. 2008000452 of the Official Public Records of Liberty County, Texas;

2) part of that certain 261.0209 acres (Tract XI) conveyed by Bill Sjolander to CMC Railroad, Inc. by Deed dated January 10, 2008 and recorded under County Clerk's File No. 2008000452 of the Official Public Records of Liberty County, Texas;

3) part of that certain 556.0186 acres (Tract IX) conveyed by Bill Sjolander to CMC Railroad, Inc. by Deed dated January 10, 2008 and recorded under County Clerk's File No. 2008000453 of the Official Public Records of Liberty County, Texas;

4) all of that certain 7.909 acres conveyed by Bill Sjolander to CMC Railroad III-A, Inc. by Deed dated November 12, 1998 and recorded in Volume 1748 at Page 681 of the Official Public Records of Liberty County, Texas;

5) all of that certain 8.179 acres conveyed by Bill Sjolander to CMC Railroad III, Inc. by Correction Deed dated December 29, 1998 and recorded in Volume 1756 at Page 131 of the Official Public Records of Liberty County, Texas;

6) all of that certain 7.491 acres conveyed by Bill Sjolander to CMC Railroad III-B, Inc. by Deed dated February 15, 2001 and recorded in Volume 1883 at Page 488 of the Official Public Records of Liberty County, Texas;

7) all of that certain 41.113 acres conveyed by Bill Sjolander to CMC Railroad III-C, Inc. by Deed dated October 3, 2002 and recorded under County Clerk's File No. 2002052310 of the Official Public Records of Liberty County, Texas;

8) all of that certain 20.7538 acres (called 20.7555 acres) conveyed by Bill Sjolander to CMC Railroad III-C, Inc. by Deed dated October 30, 2003 and recorded under County Clerk's File No. 2003016744 of the Official Public Records of Liberty County, Texas;

9) all of that certain 5.06 acres conveyed by Bill Sjolander to CMC Industries, Inc. by Deed dated December 29, 2003 and recorded under County Clerk's File No. 2004005453 of the Official Public Records of Liberty County, Texas;

10) all of that certain 29.8786 acres conveyed by Bill Sjolander to CMC Railroad III-D, Inc. by Deed dated February 22, 2006 and recorded under County Clerk's File No. 2006008609 of the Official Public Records of Liberty County, Texas;

11) all of that certain 0.6428 of an acre conveyed by Bill Sjolander to CMC Industries, Inc. by Deed dated June 30, 2007 and recorded under County Clerk's File No. 2007009503 of the Official Public Records of Liberty County, Texas;

12) all of that certain 0.9570 of an acre conveyed by Bill Sjolander to CMC Industries, Inc. by Deed dated June 30, 2007 and recorded under County Clerk's File No. 2007009505 of the Official Public Records of Liberty County, Texas;

13) all of that certain 0.312 of an acre conveyed by Bill Sjolander to CMC Industries, Inc. by Deed dated June 30, 2007 and recorded under County Clerk's File No. 2007009507 of the Official Public Records of Liberty County, Texas;

14) all of that certain 1.1785 acres conveyed by Bill Sjolander to CMC Industries, Inc. by Deed dated June 30, 2007 and recorded under County Clerk's File No. 2007009508 of the Official Public Records of Liberty County, Texas;

15) all of that certain 1.2252 acres conveyed by Bill Sjolander to CMC Industries, Inc. by Deed dated June 30, 2007 and recorded under County Clerk's File No. 2007009509 of the Official Public Records of Liberty County, Texas;

16) all of that certain 9.3427 acres conveyed by Bill Sjolander to CMC Industries, Inc. by Deed dated June 30, 2007 and recorded under County Clerk's File No. 2007009510 of the Official Public Records of Liberty County, Texas;

Exhibit 10.4

17) all of that certain 3.2751 acres conveyed by Bill Sjolander to CMC Industries, Inc. by Deed dated June 30, 2007 and recorded under County Clerk's File No. 2007009511 of the Official Public Records of Liberty County, Texas;

18) all of that certain 1.0991 acres conveyed by Bill Sjolander to CMC Industries, Inc. by Deed dated June 30, 2007 and recorded under County Clerk's File No. 2007009512 of the Official Public Records of Liberty County, Texas;

19) part of that certain 0.6605 of an acre conveyed by Bill Sjolander to CMC Industries, Inc. by Deed dated June 30, 2007 and recorded under County Clerk's File No. 2007009502 of the Official Public Records of Liberty County, Texas;

20) all of that certain 0.4527 of an acre conveyed by Bill Sjolander to CMC Industries, Inc. by Deed dated June 30, 2007 and recorded under County Clerk's File No. 2007009504 of the Official Public Records of Liberty County, Texas;

21) all of that certain 0.478 of an acre conveyed by Bill Sjolander to CMC Industries, Inc. by Deed dated June 30, 2007 and recorded under County Clerk's File No. 2007009506 of the Official Public Records of Liberty County, Texas;

22) part of that certain 387.716 acres conveyed by J. B. Sterling, et ux, to Bill Sjolander by Deed dated June 4, 1997 and recorded in Volume 1671 at Page 721 of the Official Public Records of Liberty County, Texas;

23) part of Lots 4, 8, 9, 10 and 11 of the Brown & Sterling Subdivision as recorded in Volume 37 at Page 2 of the Deed Records of Liberty County, Texas;

Said 187.1834 acres being part of that same land conveyed by CMC Railroad, Inc. to TRT LeaseCo, LLC, by Instrument dated July 21, 2014 and recorded under County Clerk's File No. 2014011029 of the Official Public Records of Liberty County, Texas and is more particularly described by the following metes and bounds, to-wit:

NOTE: BEARINGS ARE LAMBERT GRID BEARINGS AND ALL COORDINATES REFER TO THE TEXAS STATE PLANE COORDINATE SYSTEM, CENTRAL ZONE, NAD 83. ALL DISTANCES ARE ACTUAL DISTANCES. SCALE FACTOR = 1.000142861. REFERENCE IS MADE TO THE PLATS OF EVEN DATE ACCOMPANYING THIS METES AND BOUNDS DESCRIPTION.

COMMENCING at a 3/4 inch iron pipe found in the West right-of-way line of the Southern Pacific Railroad/Union Pacific Railroad 100 foot wide right-of-way described in Volume 69 at Page 410 of the Deed Records of Liberty County, Texas, for the Northeast corner of said 9.43 acres. Said COMMENCING POINT has a State Plane Coordinate Value of Y=10,015,250.46 and X=4,015,864.67.

THENCE: South 10°24'11" West along the East line of said 9.43 acres and the West line of said Railroad for a distance of 714.00 feet to a 6 inch railroad spike set for the Northeast corner and POINT OF BEGINNING of this tract. Said BEGINNING POINT has a State Plane Coordinate Value of Y=10,014,548.10 and X=4,015,735.73.

THENCE: Continue South 10°24'11" West along the East line of this tract, the East line of said 9.43 acres, the East line of said 0.6428 of an acre, the East line of said 8.179 acres, the East line of said 0.6605 of an acre, the East line of said 387.716 acres and the West line of said Railroad, for a distance of 11,975.24 feet to a 1/2 inch iron rod, with cap (BHA), set for the Southeast corner of this tract.

THENCE: North 45°39'48" West along the South line of this tract for a distance of 370.80 feet to 1/2 inch iron rod, with cap (BHA), set for an angle point in said line.

THENCE: North 64°25'10" West along the South line of this tract for a distance of 121.23 feet to a 1/2 inch iron rod, with cap (BHA), set for the BEGINNING POINT of a curve to the right, concave Northeasterly.

THENCE: Along and around said curve to the right, in a Northwesterly direction, along the South line of this tract, said curve having a radius of 278.59 feet, a central angle of 55°23'16" and a chord bearing and distance of North 33°26'52" West 258.95 feet, for an arc length of 269.31 feet to a 1/2 inch iron rod, with cap (BHA), set for the TERMINATION POINT of said curve.

THENCE: North 11°16'48" West along the South line of this tract for a distance of 94.88 feet to a 1/2 inch iron rod, with cap (BHA), set for the BEGINNING POINT of a curve to the left, concave Southwesterly.

Exhibit 10.4

THENCE: Along and around said curve to the left, in a Northwesterly direction, along the South line of this tract, said curve having a radius of 100.83 feet, a central angle of 31°33'57" and a chord bearing and distance of North 26°04'50" West 54.85 feet, for a distance of 55.55 feet to a 1/2 inch iron rod, with cap (BHA), set for the TERMINATION POINT of said curve.

THENCE: North 50°28'52" West along the South line of this tract for a distance of 53.59 feet to a 1/2 inch iron rod, with cap (BHA), set for an angle point in said line.

THENCE: North 79°09'07" West along the South line of this tract for a distance of 118.53 feet to a 1/2 inch iron rod, with cap (BHA), set for the BEGINNING POINT of a curve to the right, concave Northerly.

THENCE: Along and around said curve to the right, in a Northwesterly direction, along the South line of this tract, said curve having a radius of 766.47 feet, a central angle of 15°16'42" and a chord bearing and distance of North 64°02'19" West 203.78 feet, for an arc length of 204.38 feet to a 1/2 inch iron rod, with cap (BHA), set for the TERMINATION POINT of said curve.

THENCE: North 46°35'03" West along the South line of this tract for a distance of 73.25 feet to a 1/2 inch iron rod, with cap (BHA), set for the BEGINNING POINT of a curve to the right, concave Northeasterly.

THENCE: Along and around said curve to the right, in a Northwesterly direction, along the South line of this tract, said curve having a radius of 1265.11 feet, a central angle of 08°49'24" and a chord bearing and distance of North 39°45'41" West 194.63 feet, for an arc length of 194.82 feet to a 1/2 inch iron rod, with cap (BHA), set for the TERMINATION POINT of said curve.

THENCE: North 31°13'25" West along the South line of this tract for a distance of 77.48 feet to a 1/2 inch iron rod, with cap (BHA), set for the BEGINNING POINT of a curve to the right, concave Northeasterly.

THENCE: Along and around said curve to the right, in a Northwesterly direction, along the South line of this tract, said curve having a radius of 532.17 feet, a central angle of 05°54'14" and a chord bearing and distance of North 34°31'45" West 54.81 feet, for an arc length of 54.84 feet to a 1/2 inch iron rod, with cap (BHA), set for the TERMINATION POINT of said curve.

THENCE: North 36°58'09" West along the South line of this tract for a distance of 95.38 feet to a 1/2 inch iron rod, with cap (BHA), set for the Southwest corner of this tract.

THENCE: North 10°06'29" East along the Southernmost West line of this tract for a distance of 2061.47 feet to 1/2 inch iron rod, with cap (BHA), set for an angle point in said line.

THENCE: North 23°37'17" East along the Southernmost West line of this tract for a distance of 3542.57 feet to a 1/2 inch iron rod, with cap (BHA), set for the BEGINNING POINT of a curve to the left, concave Westerly.

THENCE: Along and around said curve to the left, in a Northerly direction, along the Southernmost West line of this tract, said curve having a radius of 250.00 feet, a central angle of 47°33'34" and a chord bearing and distance of North 00°09'30" West 201.61 feet, for an arc length of 207.52 feet to 3/8 inch by 12 inch spike, with cap (BHA), set for the TERMINATION POINT of said curve.

THENCE: North 23°56'17" West along the Southernmost West line of this tract for a distance of 88.32 feet to a 3/8 inch by 12 inch spike, with cap (BHA), set for the BEGINNING POINT of a curve to the right, concave Easterly.

THENCE: Along and around said curve to the right, in a Northerly direction, along the Southernmost West line of this tract, said curve having a radius of 61.37 feet, a central angle of 58°06'24" and a chord bearing and distance of North 01°21'36" West 59.61 feet, for an arc length of 62.24 feet to a 3/8 inch by 12 inch spike, with cap (BHA), set for the TERMINATION POINT of said curve.

THENCE: North 25°23'29" East along the Southernmost West line of this tract for a distance of 87.15 feet to a 3/8 inch by 12 inch spike, with cap (BHA), set for an angle point in said line.

THENCE: North 25°43'49" East along the Southernmost West line of this tract for a distance of 184.75 feet to a 3/8 inch by 12 inch spike, with cap (BHA), set for an angle point in said line.

THENCE: North 32°12'03" East along the Southernmost West line of this tract for a distance of 237.19 feet to a 3/8 inch by 12 inch spike, with cap (BHA), set for an angle point in said line.

Exhibit 10.4

THENCE: North 28°23'03" East along the Southernmost West line of this tract for a distance of 456.93 feet to a 3/8 inch by 12 inch spike, with cap (BHA), set for an interior corner of this tract.

THENCE: North 61°36'57" West along an exterior line of this tract for a distance of 28.12 feet to a 3/8 inch by 12 inch spike, with cap (BHA), set for an exterior corner of this tract.

THENCE: North 28°23'03" East along an exterior West line of this tract for a distance of 45.21 feet to a 3/8 inch by 12 inch spike, with cap (BHA), set for an exterior corner of this tract.

THENCE: South 61°36'57" East along an exterior line of this tract for a distance of 28.12 feet to a 3/8 inch by 12 inch spike, with cap (BHA), set for an interior corner of this tract.

THENCE: North 28°23'03" East along an exterior West line of this tract for a distance of 117.71 feet to a 3/8 inch by 12 inch spike, with cap (BHA), set for an angle point in said line.

THENCE: North 31°11'20" East along an exterior West line of this tract for a distance of 527.80 feet to a 6 inch railroad spike set for an exterior corner of this tract.

THENCE: South 58°48'40" East along an exterior line of this tract for a distance of 61.15 feet to a 3/8 inch by 12 inch spike, with cap (BHA), set for an interior corner of this tract.

THENCE: North 23°17'21" East along the Northernmost West line of this tract for a distance of 107.19 feet to a 6 inch railroad spike set for the BEGINNING POINT of a curve to the left, concave Westerly.

THENCE: Along and around said curve to the left, in a Northerly direction, along the Northernmost West line of this tract, said curve having a radius of 1136.50 feet, a central angle of 04°05'28" and a chord bearing and distance of North 20°42'40" East 81.13 feet, for an arc length of 81.15 feet to a 6 inch railroad spike set for the TERMINATION POINT of said curve.

THENCE: North 17°28'06" East along the Northernmost West line of this tract for a distance of 77.62 feet to a 6 inch railroad spike set for the BEGINNING POINT of a curve to the left, concave Westerly.

THENCE: Along and around said curve to the left, in a Northerly direction, along the Northernmost West line of this tract, said curve having a radius of 2741.00 feet, a central angle of 08°04'51" and a chord bearing and distance of North 13°41'11" East 386.26 feet, for an arc length of 386.58 feet to a 6 inch railroad spike set for the TERMINATION POINT of said curve.

THENCE: North 10°23'02" East along the Northernmost West line of this tract for a distance of 2979.42 feet to a 1/2 inch iron rod, with cap (BHA), set for the Northwest corner of this tract.

THENCE: South 79°36'58" East along the North line of this tract for a distance of 39.69 feet to the PLACE OF BEGINNING and containing within these boundaries 187.1838 acres or 8,153,728.10 square feet of land.

STATE OF TEXAS)

COUNTY OF LIBERTY)

LEASE EXHIBIT A-2)

FIELD NOTES of a 3.2622 acre tract of land situated in the T. C. Railroad Company Survey No. 39, Abstract 474, Liberty County, Texas. Said 3.2622 acres being out of and a part of that certain 261.0209 acres (Tract XI) conveyed by Bill Sjolander to CMC Railroad, Inc. by Deed dated January 10, 2008 and recorded under County Clerk's File No. 2008000452 of the Official Public Records of Liberty County, Texas. Said 3.2622 acres is part of that same land conveyed by CMC Railroad, Inc. to TRT LeaseCo, LLC by Instrument dated July 21, 2014 and recorded under County Clerk's File No. 2014011029 of the Official Public Records of Liberty County, Texas and is more particularly described by the following metes and bounds, to-wit:

Exhibit 10.4

BEGINNING at a 6 inch metal post found in the South line of Lot 8 of Brown & Sterling Subdivision (map of record in Volume 37 at Page 2 of the Deed Records of Liberty County, Texas) in the South line of the Elizabeth Munson League, Abstract 88, Liberty County, Texas, the North line of said 261.0209 acres and the North line of said T. C. Railroad Company Survey No. 39 for the Southwest corner of that certain 9.43 acres (Tract XV) conveyed by Bill Sjolander to CMC Railroad, Inc. by Deed dated January 10, 2008 and recorded under County Clerk's File No. 2008000452 of the Official Public Records of Liberty County, Texas. Said BEGINNING POINT has a State Plane Coordinate Value of Y=10,011,205.18 and X=4,015,020.32.

THENCE: South 54°55'20" West along the East line of this tract for a distance of 453.17 feet to a 3/8 inch by 12 inch spike, with cap (BHA), set for the Southeast corner of this tract.

THENCE: South 87°44'49" West along the South line of this tract for a distance of 375.15 feet to a 3/8 inch by 12 inch spike, with cap (BHA), set for an angle point in said line.

THENCE: South 47°42'39" West along the South line of this tract for a distance of 9.99 feet to a 3/8 inch by 12 inch spike, with cap (BHA), set for an angle point in said line.

THENCE: South 28°12'44" West along the South line of this tract for a distance of 15.31 feet to a 3/8 inch by 12 inch spike, with cap (BHA), set for an angle point in said line.

THENCE: South 11°48'16" West along the South line of this tract for a distance of 14.95 feet to a 3/8 inch by 12 inch spike, with cap (BHA), set for the Southwest corner of this tract.

THENCE: North 02°37'47" West along the West line of this tract for a distance of 274.66 feet to a magnetic ("mag") nail set in the North line of said 261.0209 acres, the North line of said T. C. Railroad Company Survey No. 39, the South line of said Munson League, the South line of said Lot 8 and the South line of Rolke Road (County Road 4931 - dedicated 50 feet wide public right-of-way) for the Northwest corner of this tract.

THENCE: North 87°22'13" East along the North line of this tract, the North line of said 261.0209 acres, the North line of said T. C. Railroad Company Survey No. 39, the South line of said Munson League, the South line of said Rolke Road and the South line of said Lot 8 for a distance of 776.83 feet to the PLACE OF BEGINNING and containing within these boundaries 3.2622 acres or 142,102.94 square feet of land.

STATE OF TEXAS)

COUNTY OF LIBERTY)

AEROBIC SYSTEM SPRINKLER FIELD)

EXHIBIT A-3)

FIELD NOTES of a 1.3151 acre tract of land situated in the T. C. Railroad Company Survey No. 39, Abstract 474, Liberty County, Texas. Said 1.3151 acres being out of and a part of that certain 261.0209 acres (Tract XI) conveyed by Bill Sjolander to CMC Railroad, Inc. by Deed dated January 10, 2008 and recorded under County Clerk's File No. 2008000452 of the Official Public Records of Liberty County, Texas. Said 1.3151 acres being part of that same land conveyed by CMC Railroad, Inc. to TRT LeaseCo, LLC by Instrument dated July 21, 2014 and recorded under County Clerk's File No. 2014011029 of the Official Public Records of Liberty County, Texas and is more particularly described by the following metes and bounds, to-wit:

COMMENCING at a 6 inch metal post found in the South line of Lot 8 of Brown & Sterling Subdivision (map of record in Volume 37 at Page 2 of the Deed Records of Liberty County, Texas) in the South line of the Elizabeth Munson League, Abstract 88, Liberty County, Texas, the North line of said T. C. Railroad Company Survey No. 39 and the North line of said 261.0209 acres for the Southwest corner of that certain 9.43 acres (Tract XV) conveyed by Bill Sjolander to CMC Railroad, Inc. by Deed dated January 10, 2008 and recorded under County Clerk's File No. 2008000452 of the Official Public Records of Liberty County, Texas. Said COMMENCING POINT has a State Plane Coordinate Value of Y=10,011,205.18 and X=4,015,020.32.

Exhibit 10.4

THENCE: South 87°22'13" West along the South line of said Lot 8, the South line of said Munson League, the South line of Rolke Road (County Road 493--dedicated 50 feet wide public right-of-way), the North line of said T. C. Railroad Survey No. 39 and the North line of said 261.0209 acres for a distance of 815.11 feet to a an "X" in concrete set for the Northeast corner and POINT OF BEGINNING of this tract. Said BEGINNING POINT has a State Plane Coordinate Value of Y=10,011,166.85 and X=4,014,206.05.

THENCE: South 02°28'58" East along the East line of this tract for a distance of 157.87 feet to a magnetic ("mag") nail set for the Southeast corner of this tract.

THENCE: South 87°22'13" West along the South line of this tract for a distance of 362.66 feet to a 3/8 inch by 12 inch spike, with cap (BHA), set for the Southwest corner of this tract.

THENCE: North 02°37'47" West along the West line of this tract for a distance of 157.87 feet to a 1/2 inch iron rod, with cap (BHA), set in the North line of said 261.0209 acres, the North line of said Survey No. 39, the South line of said Munson League and the South line of Lot 21 of said Brown & Sterling Subdivision for the Northwest corner of this tract.

THENCE: North 87°22'13" East along the North line of this tract, the South line of Rolke Road, the South line of said Lot 21, the South line of said Munson League, the North line of said 261.0209 acres and the North line of said Survey No. 39 for a distance of 363.06 feet the PLACE OF BEGINNING and containing within these boundaries 1.3151 acres or 57,284.22 square feet of land.

STATE OF TEXAS)

COUNTY OF LIBERTY)

ENTRANCE EASEMENT EXHIBIT B)

Entrance Easement containing 0.2434 acres as set forth by that certain instrument recorded under Clerk's File No. 2014011032 of the Official Public Records of Liberty County, Texas, and being more particularly described by metes and bounds as follows:

FIELD NOTES of a 0.2434 of an acre tract of land situated in the T. C. Railroad Company Survey No. 39, Abstract 474, Liberty County, Texas. Said 0.2434 of an acre being out of and a part of that certain 261.0209 acres (Tract XI) conveyed by Bill Sjolander to CMC Railroad, Inc. by Deed dated January 10, 2008 and recorded under County Clerk's File No. 2008000452 of the Official Public Records of Liberty County, Texas. Said 0.2434 of an acre being that same land described in Easement Agreement Entrance Off 493 Roadway by and between CMC Railroad, Inc. and TRT LeaseCo, LLC dated July 22, 2014 and recorded under County Clerk's File No. 2014011032 of the Official Public Records of Liberty County, Texas and is more particularly described by the following metes and bounds, to-wit:

THENCE: South 87°22'13" West along the South line of said Lot 8, the South line of said Munson League, the South line of Rolke Road (County Road 493--dedicated 50 feet wide public right-of-way), the North line of said T. C. Railroad Survey No. 39 and the North line of said 261.0209 acres for a distance of 776.82 feet to a magnetic ("mag") nail set for the Northeast corner and POINT OF BEGINNING of this tract. Said BEGINNING POINT has a State Plane Coordinate Value of Y=10,011,169.63 and X=4,014,244.22.

Exhibit 10.4

THENCE: South 02°37'47" East along the East line of this tract for a distance of 274.66 feet to a 3/8 inch by 12 inch spike, with cap (BHA), set for the Southeast corner of this tract.

THENCE: South 88°42'47" West along the South line of this tract for a distance of 4.32 feet to a 3/8 inch by 12 inch spike, with cap (BHA), set for an angle point in said line.

THENCE: South 87°54'16" West along the South line of this tract for a distance of 28.03 feet to a 3/8 inch by 12 inch spike, with cap (BHA), set for an angle point in said line.

THENCE: South 84°16'17" West along the South line of this tract for a distance of 6.65 feet to a 3/8 inch by 12 inch spike, with cap (BHA), set for the Southwest corner of this tract.

THENCE: North 02°28'58" West along the West line of this tract for a distance of 274.66 feet to an "X" set in concrete in the North line of said 261.0209 acres, the North line of said Survey No. 39, the South line of said Munson League and the South line of Lot 21 of said Brown & Sterling Subdivision for the Northwest corner of this tract. Said point being the Southwest corner of said Rolke Road.

THENCE: North 87°22'13" East along the North line of this tract, the South line of said Rolke Road, the South line of said Lot 21 and Lot 8, the South line of said Munson League, the North line of said 261.0209 acres and the North line of said Survey No. 39 for a distance of 38.28 feet the PLACE OF BEGINNING and containing within these boundaries 0.2434 of an acre or 10,603.44 square feet of land.

STATE OF TEXAS)

COUNTY OF LIBERTY)

DECLARATION EXHIBIT A)

Declaration of Easements, Covenants, Conditions and Restrictions as set forth in instrument recorded under Clerk's File No. 2014011033 of the Official Public Records of Liberty County, Texas, said easement containing 4.1911 acres and being more particularly described by metes and bounds as follows:

FIELD NOTES of a 4.1911 acre tract of land situated in the Elizabeth Munson League, Abstract 88, Liberty County, Texas. Said 4.1911 acres being out of and a part of that certain 9.43 acres (Tract XV) conveyed by Bill Sjolander to CMC Railroad, Inc. by Deed dated January 10, 2008 and recorded under County Clerk's File No. 2008000452 of the Official Public Records of Liberty County, Texas and out of and a part of Lots 3, 4, 8, 9, 10 and 11 of the Brown & Sterling Subdivision as recorded in Volume 37 at Page 2 of the Deed Records of Liberty County, Texas. Said 4.1911 acres being part of that same land described in Declaration of Easement, Covenants, Conditions and Restrictions by and between CMC Railroad, Inc. and TRT LeaseCo, LLC dated July 21, 2014 and recorded under County Clerk's File No. 2014011033 of the Official Public Records of Liberty County, Texas and is more particularly described by the following metes and bounds, to-wit:

BEGINNING at a 6 inch metal post found in the South line of said Lot 8, the South line of said Munson League, the North line of said T. C. Railroad Company Survey No. 39 and the North line of that certain 261.0209 acres (Tract XI) conveyed by Bill Sjolander to CMC Railroad, Inc. by Deed dated January 10, 2008 and recorded under County Clerk's File No. 2008000452 of the Official Public Records of Liberty County, Texas. Said point being the Southwest corner and POINT OF BEGINNING of this tract and the Southwest corner of said 9.43 acres and has a State Plane Coordinate Value of Y=10,011,205.18 and X=4,015,020.32.

THENCE: North 10°24'11" East along the West line of this tract and the West line of said 9.43 acres for a distance of 4107.36 feet to a 1/2 inch iron rod, with cap (BHA), set for the Northwest corner of this tract and the Northwest corner of said 9.43 acres.

THENCE: North 87°20'15" East along the North line of this tract and the North line of said 9.43 acres for a distance of 45.49 feet to a 1/2 inch iron rod, with cap (BHA), set for the Northeast corner of this tract.

Exhibit 10.4

THENCE: South 10°22'01" West along the East line of this tract for a distance of 1047.50 feet to a 6 inch railroad spike set for an angle point in said line.

THENCE: South 10°22'11" West along the East line of this tract for a distance of 977.48 feet to a 6 inch railroad spike set for an angle point in said line.

THENCE: South 10°23'15" West along the East line of this tract for a distance of 1010.23 feet to a 6 inch railroad spike set for an angle point in said line.

THENCE: South 10°23'22" West along the East line of this tract for a distance of 645.21 feet to a 6 inch railroad spike set for the BEGINNING POINT of a curve to the right, concave Westerly.

THENCE: Along and around said curve to the right, in a Southerly direction, along the East line of this tract, said curve having a radius of 2939.42 feet, a central angle of 07°30'31" and a chord bearing and distance of South 13°39'38" West 384.94 feet, for an arc length of 385.21 feet to a 6 inch railroad spike set for the TERMINATION POINT of said curve.

THENCE: South 21°28'44" West along the East line of this tract for a distance of 50.51 feet to a 6 inch railroad spike set in the South line of said 9.43 acres, the South line of said Munson League, the South line of said Lot 8, the North line of said 261.0209 acres and the North line of said Survey No. 39 for the Southeast corner of this tract.

THENCE: South 87°22'13" West along the South line of this tract, the South line of said Munson League, the South line of said Lot 8, the South line of said 9.43 acres, the North line of said 261.0209 acres and the North line of said Survey No. 39 for a distance of 14.76 feet to the PLACE OF BEGINNING and containing within these boundaries 4.1911 acres or 182,562.26 square feet of land.

STATE OF TEXAS)

COUNTY OF LIBERTY)

DECLARATION EXHIBIT B)

Declaration of Easements, Covenants, Conditions and Restrictions as set forth in instrument recorded under Clerk's File No. 2014011033 of the Official Public Records of Liberty County, Texas, said easement containing 0.8928 acre and being more particularly described by metes and bounds as follows:

FIELD NOTES of a 0.8928 of an acre tract of land situated in the T. C. Railroad Company Survey No. 39, Abstract 474, Liberty County, Texas. Said 0.8928 of an acre being out of and a part of that certain 261.0209 acres (Tract XI) conveyed by Bill Sjolander to CMC Railroad, Inc. by Deed dated January 10, 2008 and recorded under County Clerk's File No. 2008000452 of the Official Public Records of Liberty County, Texas. Said 0.8928 of an acre being part of that same land described in Declaration of Easement, Covenants, Conditions and Restrictions by and between CMC Railroad, Inc. and TRT LeaseCo, LLC dated July 21, 2014 and recorded under County Clerk's File No. 2014011033 of the Official Public Records of Liberty County, Texas and is more particularly described by the following metes and bounds, to-wit:

BEGINNING at a 6 inch metal post found in the South line of Lot 8 of Brown & Sterling Subdivision (map of record in Volume 37 at Page 2 of the Deed Records of Liberty County, Texas) in the South line of the Elizabeth Munson League, Abstract 88, Liberty County, Texas, the North line of said T. C. Railroad Company Survey No. 39 and the North line of said 261.0209 acres. Said point being the Southwest corner of that certain 9.43 acres (Tract XV) conveyed by Bill Sjolander to CMC Railroad, Inc. by Deed dated January 10, 2008 and recorded under County Clerk's File No. 2008000452 of the Official Public Records of Liberty County, Texas and being the Northwest corner and POINT OF BEGINNING of this tract and has a State Plane Coordinate Value of Y=10,011,205.18 and X=4,015,020.32.

THENCE: North 87°22'13" East along the North line of this tract, the North line of said Survey No. 39, the North line of said 261.0209 acres, the South line of said Lot 8, the South line of said Munson League and the South line of said 9.43 acres for a distance of 34.65 feet to a 6 inch railroad spike set for the Northeast corner of this tract.

Exhibit 10.4

THENCE: South 17°28'06" West along the Northernmost East line of this tract for a distance of 33.60 feet to a 6 inch railroad spike set for the BEGINNING POINT of a curve to the right, concave Westerly.

THENCE: Along and around said curve to the right, in a Southerly direction, along the Northernmost East line of this tract, said curve having a radius of 1136.50 feet, a central angle of 04°05'28" and a chord bearing and distance of South 20°42'40" West 81.13 feet, for an arc length of 81.15 feet to a 6 inch railroad spike set for the TERMINATION POINT of said curve.

THENCE: South 23°17'21" West along the Northernmost East line of this tract for a distance of 107.19 feet to a 3/8 inch by 12 inch spike, with cap (BHA), set for the Easternmost Southeast corner of this tract.

THENCE: North 58°48'40" West along the Easternmost South line of this tract for a distance of 61.15 feet to a 3/8 inch by 12 inch spike, with cap (BHA), set for an interior corner of this tract.

THENCE: South 31°11'20" West along the Southernmost East line of this tract for a distance of 149.59 feet to a 3/8 inch by 12 inch spike, with cap (BHA), set for the Southernmost Southeast corner of this tract. Said point being the BEGINNING POINT of a curve to the left, concave Southwesterly.

THENCE: Along and around said curve to the left, in a Northwesterly direction, along the Westernmost South line of this tract, said curve having a radius of 45.63 feet, a central angle of 76°54'54" and a chord bearing and distance of North 38°55'41" West 56.76 feet, for an arc length of 61.26 feet to a 3/8 inch by 12 inch spike, with cap (BHA), set for the TERMINATION POINT of this curve and the BEGINNING POINT of another curve to the left, concave Southerly.

THENCE: Along and around said curve to the left, in an Westerly direction, along the Westernmost South line of this tract, said curve having a radius of 174.15 feet, a central angle of 17°48'18" and a chord bearing and distance of North 86°17'17" West 53.90 feet, for an arc length of 54.12 feet to a 3/8 inch by 12 inch spike, with cap (BHA), set for the TERMINATION POINT of said curve.

THENCE: South 87°05'47" West along the Westernmost South line of this tract for a distance of 73.53 feet to a 3/8 inch by 12 inch spike set for an angle point in said line.

THENCE: South 84°07'59" West along the Westernmost South line of this tract for a distance of 31.82 feet to a 3/8 inch by 12 inch spike set for the Southwest corner of this tract.

THENCE: North 54°55'20" East along the West line of this tract for a distance of 453.17 feet to the PLACE OF BEGINNING and containing within these boundaries 0.8928 of an acre or 38,888.70 square feet of land.

STATE OF TEXAS)

COUNTY OF LIBERTY)

DECLARATION EXHIBIT C)

Declaration of Easements, Covenants, Conditions and Restrictions as set forth in instrument recorded under Clerk's File No. 2014011033 of the Official Public Records of Liberty County, Texas, said easement containing 7.5073 acres and being more particularly described by metes and bounds as follows:

FIELD NOTES of a 7.5073 acre tract of land situated in the T. C. Railroad Company Survey No. 39, Abstract 474, Liberty County, Texas. Said 7.5073 acres being out of and a part of that certain 261.0209 acres (Tract XI) conveyed by Bill Sjolander to CMC Railroad, Inc. by Deed dated January 10, 2008 and recorded under County Clerk's File No. 2008000452 of the Official Public Records of Liberty County, Texas. Said 7.5073 acres being part of that same land described in Declaration of Easement, Covenants, Conditions and Restrictions by and between CMC Railroad, Inc. and TRT LeaseCo, LLC dated July 21, 2014 and recorded under County Clerk's File No. 2014011033 of the Official Public Records of Liberty County, Texas and is more particularly described by the following metes and bounds, to-wit:

Exhibit 10.4

COMMENCING at a 6 inch metal post found in the South line of Lot 8 of Brown & Sterling Subdivision (map of record in Volume 37 at Page 2 of the Deed Records of Liberty County, Texas) in the South line of the Elizabeth Munson League, Abstract 88, Liberty County, Texas, the North line of said T. C. Railroad Company Survey No. 39 and the North line of said 261.0209 acres. Said point being the Southwest corner of that certain 9.43 acres (Tract XV) conveyed by Bill Sjolander to CMC Railroad, Inc. by Deed dated January 10, 2008 and recorded under County Clerk's File No. 2008000452 of the Official Public Records of Liberty County, Texas. Said COMMENCING POINT has a State Plane Coordinate Value of Y=10,011,205.18 and X=4,015,020.32.

THENCE: South 54°55'20" West for a distance of 453.17 feet to a 3/8 inch by 12 inch spike set in the Easternmost North line of this tract for the POINT OF BEGINNING. Said BEGINNING POINT has a State Plane Coordinate Value of Y=10,010,944.80 and X=4,014,649.43.

THENCE: North 84°07'59" East along the Easternmost North line of this tract for a distance of 31.82 feet to 3/8 inch by 12 inch spike, with cap (BHA), set for an angle point in said line.

THENCE: North 87°05'47" East along the Easternmost North line of this tract for a distance of 73.53 feet to a 3/8 inch by 12 inch spike, with cap (BHA), set for the BEGINNING POINT of a curve to the right, concave Southerly.

THENCE: Along and around said curve to the right, in an Easterly direction, along the Easternmost North line of this tract, said curve having a radius of 174.15 feet, a central angle of 17°48'18" and a chord bearing and distance of South 86°17'17" East 53.90 feet, for an arc length of 54.12 feet to a 3/8 inch by 12 inch spike, with cap (BHA), set for the TERMINATION POINT of this curve and the BEGINNING POINT of another curve to the right, concave Southwesterly. Said point being the Northernmost Northeast corner of this tract.

THENCE: Along and around said curve to the right, in a Southeasterly direction, along the Northeast line of this tract, said curve having a radius of 45.63 feet, a central angle of 76°54'54" and a chord bearing and distance of South 38°55'41" East 56.76 feet, for an arc length of 61.26 feet to a 3/8 inch by 12 inch spike, with cap (BHA), set for the TERMINATION POINT of said curve at the Easternmost Northeast corner of this tract.

THENCE: South 31°11'20" West along the Northernmost East line of this tract for a distance of 378.21 feet to a 3/8 inch by 12 inch spike, with cap (BHA), set for an angle point in said line.

THENCE: South 28°23'03" West along the Northernmost East line of this tract for a distance of 117.71 feet to a 3/8 inch by 12 inch spike, with cap (BHA), set for an exterior corner of this tract.

THENCE: North 61°36'57" West along an interior line of this tract for a distance of 28.12 feet to a 3/8 inch by 12 inch spike, with cap (BHA), set for an interior corner of this tract.

THENCE: South 28°23'03" West along an interior line of this tract for a distance of 45.21 feet to a 3/8 inch by 12 inch spike, with cap (BHA), set for an interior corner of this tract.

THENCE: South 61°36'57" East along an interior line of this tract for a distance of 28.12 feet to a 3/8 inch by 12 inch spike, with cap (BHA), set for an exterior corner of this tract.

THENCE: South 28°23'03" West along the Southernmost East line of this tract for a distance of 456.93 feet to 3/8 inch by 12 inch spike, with cap (BHA), set for an angle point in said line.

THENCE: South 32°12'06" West along the Southernmost East line of this tract for a distance of 27.23 feet to a 3/8 inch by 12 inch spike, with cap (BHA), set for an angle point in said line.

THENCE: South 32°12'03" West along the Southernmost East line of this tract for a distance of 209.96 feet to a 3/8 inch by 12 inch spike, with cap (BHA), set for an angle point for the Southernmost corner of this tract. Said point being the BEGINNING POINT of a curve to the left, concave Westerly.

THENCE: Along and around said curve, in a Northerly direction, along the Southernmost West line of this tract, said curve having a radius of 485.48 feet, a central angle of 27°18'29" and a chord bearing and distance of North 10°08'47" East 229.20 feet, for an arc length of 231.39 feet to a 3/8 inch by 12 inch spike, with cap (BHA), set for the TERMINATION POINT of said curve.

Exhibit 10.4

THENCE: North 02°56'33" West along the Southernmost West line of this tract for a distance of 835.03 feet to a 3/8 inch by 12 inch spike, with cap (BHA), set for the Westernmost Northwest corner of this tract.

THENCE: North 87°54'16" East along the Westernmost North line of this tract for a distance of 28.03 feet to a 3/8 inch by 12 inch spike, with cap (BHA), set for an angle point in said line.

THENCE: North 88°42'47" East along the Westernmost North line of this tract for a distance of 4.32 feet to a 3/8 inch by 12 inch spike, with cap (BHA), set for an interior corner of this tract.

THENCE: North 11°48'16" East along the Northernmost West line of this tract for a distance of 14.95 feet to a 3/8 inch by 12 inch spike, with cap (BHA), set for an angle point in said line.

THENCE: North 28°12'44" East along the Northernmost West line of this tract for a distance of 15.31 feet to a 3/8 inch by 12 inch spike, with cap (BHA), set for an angle point in said line.

THENCE: North 47°42'39" East along the Northernmost West line of this tract for a distance of 9.99 feet to a 3/8 inch by 12 inch spike, with cap (BHA), set for the Northernmost Northwest corner of this tract.

THENCE: North 87°44'49" East along the Easternmost North line of this tract for a distance of 375.15 feet to the PLACE OF BEGINNING and containing within these boundaries 7.5073 acres or 327,018.72 square feet of land.

Exhibit 10.4

ADDENDUM A

State Specific Provisions

Power of Sale . Exercise of power of sale hereunder (including, without limitation, all posting, serving, filing and notice provisions) shall be subject to and in strict compliance with all applicable laws, including, without limitation, Section 51.002 of the Texas Property Code, as amended or replaced. Grantor shall have no right to direct the order in which the Property is sold. Trustee may postpone sale of all or any portion of the Property by public announcement at such time and place of sale and from time to time thereafter may postpone such sale by public announcement at such time fixed by the preceding postponement. Any sale thereafter must comply with said Section 51.002, including the notice provisions therein. Trustee shall deliver to the purchaser at such sale a deed conveying the Property or portion thereof so sold, but without any covenant or warranty, express or implied except a general warranty binding on Grantor. The recitals in such deed of any matters or facts shall be conclusive proof of the truthfulness thereof absent manifest error.

Deficiency Decree . Subject to Section 51.004 and 51.005 of the Texas Property Code, if at any judicial foreclosure proceeding the Property shall be sold for a sum less than the total amount of indebtedness for which judgment is therein given, Beneficiary shall be entitled to bring an action to recover the deficiency; and, to the extent permitted by applicable law, Grantor does hereby irrevocably consent to the appointment of a receiver for the Property and the property of Grantor found therein and of the rents, issues and profits thereof after such sale and until such deficiency decree is satisfied in full. If the Property shall be sold pursuant to the power of sale granted herein for a sum less than the Indebtedness Hereby Secured which is then outstanding and unpaid, Beneficiary shall be entitled to enforce the collection of such deficiency in the manner provided for by law, subject to Section 51.003 and 51.005 of the Texas Property Code.

Governing Law. The creation of this Deed of Trust, the perfection of the lien and security interest in the Property, the rights and remedies of Beneficiary with respect to the Property and any other matter required by Section 35.51(f)(1) of the Texas Business and Commerce Code to be determined thereby, as provided herein and by the laws of the State of Texas, shall be governed by and construed in accordance with the internal laws of the State of Texas without regard to principles of conflicts of law.

Texas Business and Commerce Code Section 26.02 Notice. This Deed of Trust and any other documents executed in connection herewith or therewith represent the final agreement among the Parties and may not be contradicted by evidence of prior, contemporaneous, or subsequent oral agreements of the parties, there are no oral agreements among the Parties.

Limitation on Interest. It is the intention of the parties hereto to conform strictly to applicable usury laws. Accordingly, all agreements between Grantor and Beneficiary with respect to the Loan are hereby expressly limited so that in no event, whether by reason of acceleration of maturity or otherwise, shall the amount paid or agreed to be paid to Beneficiary or charged under the Notes for the use, forbearance or detention of the money to be lent hereunder or otherwise, exceed the maximum amount allowed by law. If the Loan would be usurious under applicable law (including the laws of the State of Texas and the laws of the United States of America), then, notwithstanding anything to the contrary in the Operative Agreements: (a) the aggregate of all consideration which constitutes interest under applicable law that is contracted for, taken, reserved, charged or received under the Operative Agreements shall under no circumstances exceed the maximum amount of interest allowed by applicable law, and any excess shall be credited on the Indebtedness Hereby Secured; and (b) if maturity is accelerated by reason of an election by Beneficiary, or in the event of any prepayment, then any consideration which constitutes interest may never include more than the maximum amount allowed by applicable law. In such case, excess interest, if any, provided for in the Operative Agreements or otherwise, to the extent permitted by applicable law, shall be amortized, prorated, allocated and spread from the date of advance until payment in full so that the actual rate of interest is uniform through the term hereof. If such amortization, proration, allocation and spreading is not permitted under applicable law, then such excess interest shall be canceled automatically as of the date of such acceleration or prepayment and, if theretofore paid, shall be credited on the Indebtedness Hereby Secured.

Exhibit 10.5

LEASE

Between

TRT LEASECO, LLC,

a Delaware limited liability company

as Landlord

and

BNSF RAILWAY COMPANY

(f/k/a The Burlington Northern and Santa Fe Railway Company),

a Delaware corporation

as Tenant

Dated as of June 1, 2014

Exhibit 10.5




	TABLE OF CONTENTS


		Page
1.	BASIC LEASE PROVISIONS	1
2.	INTENTIONALLY OMITTED	9
3.	PREMISES	9
4.	NO MERGER OF TITLE	9
5.	RENEWAL OPTIONS	9
6.	USE	10
7.	FIXED RENT	11
8.	NET LEASE; TRUE LEASE	12
9.	CONDITION	12
10.	LIENS	13
11.	REPAIRS AND MAINTENANCE	13
12.	COMPLIANCE WITH LAWS	13
13.	ACCESS TO PREMISES BY LANDLORD	14
14.	WAIVER OF SUBROGATION	14
15.	DAMAGE; DESTRUCTION	14
16.	CONDEMNATION	15
17.	ASSIGNMENT AND SUBLETTING	16
18.	ALTERATIONS	17
19.	SIGNS	17
20.	SURRENDER	17
21.	SUBORDINATION OF LEASE	18
22.	INTENTIONALLY OMITTED	19
23.	UTILITIES	19
24.	TENANT DEFAULT	19
25.	LANDLORD DEFAULT	21
26.	RENT PAYMENTS	22
27.	HOLDOVER	22
28.	NOTICES	22
29.	INDEMNITY	23
30.	INTENTIONALLY OMITTED	24
31.	INTENTIONALLY OMITTED	24
32.	TAXES	24
33.	INSURANCE	26
34.	LANDLORD EXCULPATION	27
35.	LANDLORD'S TITLE	28
36.	QUIET ENJOYMENT	28
37.	FINANCIAL STATEMENTS	28
38.	BROKER	28
39.	TRANSFER OF TITLE	28
40.	HAZARDOUS MATERIALS	29
41.	ESTOPPEL CERTIFICATE	32

Exhibit 10.5



42.	NOTICE OF LEASE	32
43.	MISCELLANEOUS	32
44.	RIGHT OF FIRST OFFER	34
45.	RIGHT OF FIRST REFUSAL	35
46.	SECTION 1031 LIKE-KIND EXCHANGE	36

LIST O F SCHEDULE S AND EXHIBITS

Schedule l(c) Access Area Agreements

Schedule l(h) Schedule of Fixed Rent

Schedule l(m) Existing Property Agreements Schedule 7(h) Section 467 Allocations

Exhibit A-1 Legal Description of Premises (rail yard)

Exhibit A-2 Legal Description of Premises (building)

Exhibit A-3 Legal Description of Premises (aerobic septic parcel)

Exhibit B Legal Description of Access Area

Exhibit C Form of Subordination, Non-disturbance and Attornment Agreement

Exhibit D-1 Form of Tenant Estoppel

Exhibit D-2 Form of Landlord Estoppel

Exhibit E Form of Memorandum of Lease

Exhibit 10.5

LEASE

This Lease (this " Lease ") is made as of June 1, 2014 (the "Commencement Date "), between TRT LEASECO, LLC, a Delaware limited liability company, having an address at 8811 FM 1960 Bypass, Suite 310, Humble, TX 77338, as landlord (" Landlord "), and BNSF RAILWAY COMPANY (f/k/a The Burlington Northern and Santa Fe Railway Company), a Delaware corporation, having an address at 2600 Lou Menk Drive, Fort Worth, TX 76131, as tenant (" Tenant ").

W I T N E S S T H :

In consideration of the rents, covenants and conditions herein set forth, Landlord and Tenant do hereby covenant, promise and agree as follows:


(a)	BASIC LEASE PROVISIONS

The following sets out certain fundamental provisions and definitions pertaining to this Lease:

(a) Landlord notice address:

TRT Leaseco, LLC

8811 FM 1960 Bypass Suite 310

Humble, TX 77338 Attention: Marcus Goering

with copy to:

Dechert LLP Cira Centre

2929 Arch Street

Philadelphia, PA 19104 Attention: Richard D. Jones, Esq.


(b)	Tenant notice address:

BNSF Railway Company

2500 Lou Menk Drive

Fort Worth, TX 76131

Attention: AVP Facilities and Property Management

with copy to:

BNSF Railway Company

2600 Lou Menk Drive

Fort Worth, TX 76131

Attention: AVP Contracts & Joint Facilities

(c) Access Areas: Those certain areas, roadways and pathways that provide access to the Premises through the parcel adjacent to the Premises described on Exhibit B, which access is granted pursuant to those agreements (as amended from time to time, subject to the written consent of Tenant, which shall not be unreasonably withheld, conditioned or delayed, provided, that there is no material adverse impact to the utility of the Premises and/or Tenant's access to the Premises) listed

Exhibit 10.5

on Schedule l(c) (collectively, the " Access Area A greements").

(d) Building: The one story structure with tower constructed on a slab and located on the parcel described on Exhibit A -2.


(e)	Commencement Date: The date set forth in the Preamble.

(f) Exhibits: All Exhibits and Schedules to this Lease are incorporated herein for all purposes by this reference.


(g)	Expiration Date: May 31 , 2034, unless extended by a Renewal Option.

(h) Fixed Rent: An amount equal to Seven Hundred Seventy-Seven Thousand Two Hundred Eighty and No Cents Dollars ($777,280.00) per month escalated at two and one quarter percent (2.25%) annually on a compound basis commencing with the first anniversary of the Commencement Date (including any Extension Periods). A schedule of Fixed Rent is attached hereto as S chedule 1(h).

(i) Initial Term: The 20-year period commencing on the Commencement Date and ending on the Expiration Date.

As used in this Lease, " Term" shall include the Initial Term and any Extension Period thereof that becomes effective pursuant to Section 5 of this Agreement.

(j) Lease Default Rate: Twelve percent (12%) per annum , compounded monthly, accruing from the due date of such payment of Fixed Rent, Additional Rent or any other amounts due under the Lease. It is the intention of the parties hereto to conform strictly to the applicable usury laws, and whenever any provision herein provides for payment by Tenant to Landlord of interest at a rate in excess of the highest legal rate permitted to be charged, such rate herein provided to be paid shall be deemed reduced to such highest legal rate.

(k) Lender: Any person that makes a loan or loans (such loan or loans collectively referred to herein as the "Loan") to Landlord or its affiliate which is secured directly or indirectly by a mortgage, deed of trust or similar instrument with respect to the Premises and of which Tenant is advised in writing by Landlord.

(l) Payment of Fixed Rent: As set forth in Section 7(a), Fixed Rent shall be initially paid by wire transfer to the account set forth below or such other account as Landlord may designate in a written notice to Tenant:

Bank: Wells Fargo Northwest, NA

ABA: 121-000-248

For Credit to the Account of: Corporate Trust Services

Account No: 051-09221-15

For Further Credit to: Texas Rail Terminal, LLC

Account No: 22667300

Reference: TRT Lockbox 44362

(m) Permitted Encumbrances: (i) those covenants, restrictions, reservations, liens, conditions, encroachments, easements, encumbrances and other matters of title that affect the Premises or Access Areas as set forth on Schedule 1(m) , or which arise after the date hereof due to the acts or omissions of Landlord with Tenant's written consent, such consent not to be unreasonably withheld, conditioned or delayed if such matter of title does not materially interfere with Tenant's use of the Premises, or which are consented to in writing by Landlord and Tenant (collectively, "Property Agreements"), (ii) all Taxes, and (iii) all Laws.

(n) Premises: Those three (3) certain lots or parcels of real estate which are described on Exhibit A-1, A-2 and A-3 hereto (the " L and"), together with (i) all rights and interest of Landlord in the Property Agreements, but subject to the terms, restrictions and limitations set forth therein and the rights of third parties thereunder, and the other Permitted Encumbrances, and (ii) all rights and interest of Landlord to the roadways, pathways, Building, lighting, electrical, mechanical, plumbing, heating, septic system towers, ventilation and air conditioning systems located on the Land, subject, however, to the Permitted Encumbrances, and (iii) all rail track facilities and related appliances, switches and components, including those located on any surface and subsurface areas, and the other fixtures and equipment, in each case attached or appurtenant to the

Exhibit 10.5

Land, subject, however, to the Permitted Encumbrances.


(o)	Qualified Investment Buyer: shall mean, one or more of the following:

(i) a real estate investment trust, bank, saving and loan association, investment bank, insurance company, trust company, commercial credit corporation, pension plan, pension fund or pension advisory firm, mutual fund, government entity or plan, sovereign wealth fund, private equity fund, REIT or real estate operating company, provided that any such entity referred to in this clause (i) has total assets (in name or under management or advisement) in excess of TWO HUNDRED FIFTY MILLION DOLLARS ($250,000,000) (exclusive of the Premises) (the "Investor Eligibility Requirements");

(ii) an institution substantially similar to any of the entities described in clause (i) or clause (iii) that satisfies the Investor Eligibility Requirements; or

(iii) any entity 100% owned by and controlled by, controlling or under common control with any one or more of the entities described in clause (i) or clause (ii) above.

As used in this Agreement, " Control " shall mean the power to direct or cause the direction of the management or policies of an entity, whether through the ability to exercise voting power, by contract or otherwise. "Controlled by", "Controlling" and "under common Control with" shall have the respective correlative meaning thereto.

(p) Renewal Options: The Tenant shall have the option (each, a "Renewal Option") to extend the Initial Term of this Lease for up to two additional periods of five years in duration (each such period, an "Extension Period ") on and subject to the terms and conditions of Section 5 of this Lease.

(q) Certain Definitions: The following terms shall have the definitions given to them in the following Sections of this Lease:

Exhibit 10.5




	1031 Exchange	Section 46
	Access Areas	Section l (c)
	Access Area Agreements	Schedule l (c)
	Additional Rent	Section 7(e)
	Affiliate	Section 45(a)
	Alteration or Alterations	Section 18(a)
	Bona Fide Offer	Section 45(a)
	Building	Section 1(d)
	Building Trade Fixtures	Section 20
	Business Day	Section 43(1)
	Casualty	Section 15(a)
	Commencement Date	Preamble
	Competitor	Section 45(a)
	Condemnation	Section 16(a)
	Consumer	Section 45(a)
	Designated Person	Section 43(n)
	Discount Rate	Section 24(g)
	Due Date	Section 7(a)
	Environmental Laws	Section 40(a)
	Event of Default	Section 24(a)
	Exercise Period	Section 45(a)
	Exhibits	Section 1(f)

Exhibit 10.5



	Existing Agreements	Preamble
	Expiration Date	Section I (g)
	Extension Notice	Section 5(a)
	Extension Periods	Section 1(p)
	Fixed Rent	Section 1(h)
	Hazardous Materials	Section 40(a)
	Indemnified Parties	Section 29
	Initial Term	Section 1(i)
	Investor Eligibility Requirements	Section l (o)
	Land	Section 1(n)
	Landlord	Preamble
	Laws	Section 12
	Lease	Preamble
	Lease Condemnation Termination Date	Section 16(b)
	Lease Default Rate	Section l(j)
	Lender	Section l(k)
	Loan	Section l(k)
	Major Condemnation	Section 16(b)
	Minor Condemnation	Section 16(c)
	Mortgage	Section 21(a)
	Permitted Encumbrances	Section 1(m)
	Premises	Section 1(n)
	Property Agreements	Section l (m)
	Qualified Investment Buyer	Section 1(o)
	Railroad Enterprise	Section 45(a)
	Remedial Work	Section 40(e)
	Renewal Options	Section l (p)
	Restoration	Section 15(c)
	ROFO Negotiation Period	Section 44(b)
	ROFO Notice	Section 44(a)
	ROFO Offer	Section 44(b)
	ROFO Request	Section 44(a)
	ROFR Closing Period	Section 45(b)
	ROFR Exercise	Section 45(a)
	ROFR Notice	Section 45(a)
	Signs	Section 19
	SNDA Agreement	Section 21(a)
	Sub-Surface Taking	Section 16(d)
	Taking	Section 16(a)
	Tax or Taxes	Section 32(a)
	Tenant	Preamble
	Tenant's Termination Notice	Section 16(b)
	Term	Section 1(i)

Exhibit 10.5


(b)	INTENTIONALLY OMITTED.


(c)	PREMISES.

Landlord hereby leases to Tenant, and Tenant hereby leases from Landlord, the Premises for the Term, on the terms and on the conditions herein provided, subject, however, to the Permitted Encumbrances. Landlord further grants to Tenant for the Term Landlord's rights to the Access Areas, to the extent of Landlord's rights under the Access Agreements, subject in each case to the terms, restrictions and limitations set forth therein and in the Permitted Encumbrances and the rights of third parties thereunder.


(d)	NO MERGER OF TITLE.

There shall be no merger of this Lease nor of the leasehold estate created hereby with the fee estate in or ownership of the Premises and/or the Access Areas by reason of the fact that the same entity may acquire or hold or own (i) this Lease or such leasehold estate or any interest therein and (ii) the fee estate or ownership of any of the Premises or any interest therein. No such merger shall occur unless and until all persons having any interest in (x) this Lease or such leasehold estate and (y) the fee estate in the Premises shall join in a written, recorded instrument effecting such merger.


(e)	RENEWAL OPTIONS.

(a) Tenant shall have the right to extend the Term of the Lease for an Extension Period commencing June 1, 2034, and, in the event Tenant has exercised the first such Renewal Option, to extend the Term of the Lease for an additional Extension Period commencing June 1, 2039, in each case, provided that:

(i) Tenant gives Landlord written notice (an " Extension N otice") of its election to exercise the applicable Renewal Option not less than 150 days, nor more than 365 days prior to the then-current expiration date of the Term; and

(ii) No Event of Default with respect to the payment of Fixed Rent, Taxes or utility charges payable by Tenant under this Lease exists as of the time of the giving of the applicable Extension Notice and at the time of the commencement date of the applicable Extension Period.

(b) The Fixed Rent payable by Tenant to Landlord during each Extension Period shall be as set forth in Section 1.

(c) Tenant's occupancy of the Premises during each Extension Period shall be on the same terms and conditions as set forth in this Lease; provided, however, Tenant shall have no further right to extend the term of this Lease beyond May 31, 2039, or if Tenant exercises its first Renewal Option pursuant to this Section 5, beyond May 31, 2044.

(d) If Tenant does not timely send an Extension Notice pursuant to the foregoing provisions of this Section 5 , this Section 5 shall have no force or effect and shall be deemed deleted from this Lease.


(f)	USE.

(a) Tenant's access to the Premises pursuant to the Access Area Agreements may only used in accordance with the terms and conditions set forth in the Access Area Agreements.

(b) Subject to the limitations set forth in Section 6(c) below and the other provisions of this Lease, Tenant is granted for the Term (i) the exclusive right to use the Premises for any lawful purpose to the same extent as Landlord's rights therein, subject to the terms, restrictions and limitations contained in the Property Agreements and the other Permitted Encumbrances, and the rights of third parties thereunder, and (ii) Landlord's rights under the Access Agreements, subject to the terms, restrictions and limitations contained therein and in the Permitted Encumbrances, and the rights of third parties thereunder.

(c) Notwithstanding anything to the contrary contained herein, Tenant's use of the Premises shall not (i) create waste, (ii) or violate any Environmental Laws, or (iii) unreasonably interfere with any of the Access Areas or other property adjacent to, or in the vicinity of, the Premises. In addition, Tenant's use of the Premises shall not violate any of the provisions of any Permitted Encumbrance or any Access Area Agreement. Tenant shall indemnify, defend and hold harmless Landlord and all other Indemnified Parties, from any and all losses, liabilities, penalties, actions, suits, claims, demands, judgments,

Exhibit 10.5

damages, costs or expenses suffered as a result of the violation of any such Permitted Encumbrance or the Access Area Agreements by Tenant or its employees, agents, contractors, representatives, licensees, subtenants or invitees. Tenant agrees that with respect to the Permitted Encumbrances and the Access Area Agreements, Tenant shall observe, perform and comply with and carry out the provisions thereof required therein to be observed and performed by Landlord.

(d) Landlord shall indemnify, defend and hold harmless Tenant from any and all losses, liabilities, penalties, actions, suits, claims, demands, judgments, damages, costs or expenses suffered as a result of the violation of any such Permitted Encumbrance or the Access Area Agreements by acts or omissions of Landlord or its employees, agents, contractors, representatives, licensees, subtenants or invitees after the date hereof.

(e) Notwithstanding anything in this Lease to the contrary, Landlord reserves the right to grant easements affecting the Premises and/or the Access Areas for underground pipelines or in connection with the development by owners of property adjacent to, or in the vicinity of the Premises, and Tenant expressly acknowledges such reservation of rights and agrees to reasonably cooperate with Landlord in connection therewith, subject to the limitations set forth in the following sentence. Landlord and Tenant hereby agree that Landlord may only grant temporary and permanent easements for access, utility service or underground pipelines through the Premises and/or the Access Areas, provided that (i) such easements do not materially interfere with Tenant's use of the Premises, (ii) such easements comply with Tenant's utility accommodation policy at the time of the granting thereof, and (iii) any indemnity in favor of Landlord under any such easement shall also inure to be benefit of Tenant. Tenant shall provide

Landlord, promptly after request therefore, a copy or summary of Tenant's then current utility accommodation policy. In addition, Tenant acknowledges and agrees that the owner of the Access Areas has reserved all rights to enter in to and/or use the Access Areas, subject to the limitations set forth in the Access Area Agreements.


(g)	FIXED RENT.

(a) Tenant shall pay Fixed Rent to Landlord as set forth in Section 1 . Fixed Rent shall be due and payable in advance on the first day of each month (or if such first day is not a Business Day, the first Business Day of each month), commencing on the Commencement Date, during the Term (each such date being referred to herein as a " Due D ate").


(b)	Intentionally Omitted.

(c) If any installment of Fixed Rent is not paid on the respective Due Date, Tenant shall pay Landlord interest on such overdue payment at the Lease Default Rate, accruing from the Due Date of such payment until the same is paid.


(d)	Intentionally Omitted.

(e) Commencing as of the Commencement Date, all Taxes, costs, expenses and other amounts which Tenant is required to pay pursuant to this Lease (other than Fixed Rent), together with every fine, penalty, interest and cost which may be added for non-payment or late payment thereof, shall constitute additional rent (" Additional R ent"). All Additional Rent shall be paid directly by Tenant to the party to whom such Additional Rent is due. If Tenant shall fail to pay any such Additional Rent or any other sum due hereunder when the same shall become due, Landlord shall have all rights, powers and remedies with respect thereto as are provided herein or by Law in the case of non-payment of any Fixed Rent and shall, except as expressly provided herein, have the right, not sooner than ten (10) days after written notice to Tenant (except in the event of an emergency, as reasonably determined by Landlord, in which case prior notice shall not be necessary) of its intent to do so, to pay the same on behalf of Tenant, and Tenant shall repay such amounts to Landlord on demand. Tenant shall pay to Landlord interest at the Lease Default Rate on all overdue Additional Rent and other sums due hereunder, in each case paid by Landlord on behalf of Tenant, from the date of payment by Landlord until repaid by Tenant. Landlord shall cooperate with Tenant to request the applicable taxing authority(ies) to send a copy of any tax bills and related notices to Tenant at the address provided for in Section 1 , provided, however, if any applicable taxing authority is unable or unwilling to send such copies, Landlord shall send a copy of any tax bills and notices it receives to Tenant at the address provided for in Section 1 reasonably promptly after receipt of any such bill or notice. All Fixed Rent and Additional Rent shall be payable in U.S. Dollars .

(f) The parties agree that the Section 467 Allocated Rent column on Schedule 7(f) specifically allocates Fixed Rent for the Initial Term for purposes of section 467 of the Internal Revenue Code of 1986, as amended, and section l.467-l (c)(2)(ii)(A)(2) of the Treasury Regulations, as amended or succeeded. Each rental period shall be 12 months in length beginning June 1st. Accordingly, the amount of Fixed Rent allocated to each rental period, during the Term as set forth in Schedule 1 ( h) is the amount of Fixed Rent allocated to each rental period for the use of the Premises by this Lease .

Exhibit 10.5


(h)	NET LEASE; TRUE LEASE.

(a) The obligations of Tenant hereunder shall be separate and independent covenants and agreements, and Fixed Rent, Additional Rent and all other sums payable by Tenant hereunder shall continue to be payable in all events, and the obligations of Tenant hereunder shall continue during the Term, unless the requirement to pay or perform the same shall have been terminated pursuant to the provisions of Section 1 6. · This is an absolutely net lease and Fixed Rent, Additional Rent and all other sums payable hereunder by Tenant shall be paid without notice or demand , and without setoff, counterclaim , recoupment, abatement , suspension , reduction or defense. This Lease is the absolute and unconditional obligation of Tenant , and the obligations of Tenant under this Lease shall not be affected by any interference with Tenant's use of any of the Premises or the Access Areas for any reason, including , but not limited to , the following: (i) any damage to or destruction of any of the Premises or the Access Areas by any cause whatsoever, (ii) any Condemnation (except as otherwise expressly provided in Section 16 ), (iii) the prohibition, limitation or restriction of Tenant's use of any of the Premises or the Access Areas , (iv) any eviction or constructive eviction by paramount title or otherwise , (v) any default on the part of Landlord under this Lease or under any other agreement, (vi) any latent or other defect in , or any theft or loss of any of the Premises , or (vii) any other cause , whether similar or dissimilar to the foregoing, any present or future Law to the contrary notwithstanding. All costs and expenses and other obligations of every kind and nature whatsoever relating to the Premises and the appurtenances thereto and the use and occupancy thereof (except for any such costs , expenses or obligations incurred or contracted for by Landlord without Tenant ' s prior consent; provided that such exclusion does not apply to any costs , expenses or obligations incurred or contracted for by Landlord in connection with exercising its rights and/or remedies under this Lease , which shall be paid and performed by Tenant notwithstanding Tenant's lack of consent) which may arise or become due and payable with respect to the period which ends on the expiration or earlier termination of the Term in accordance with the provisions hereof (whether or not the same shall become payable during the Term or thereafter) shall be paid and performed by Tenant. Tenant shall pay all expenses related to the maintenance and repair of the Premises, and Taxes and insurance costs . This Lease shall not terminate and Tenant shall not have any right to terminate this Lease (except as otherwise expressly provided in Section 16), or to abate Fixed Rent or Additional Rent during the Term . Nothing contained in this Section 8 shall reduce or modify in any way Section 36 or Tenant's rights in respect of a breach of Landlord's warranty therein .

(b) Landlord and Tenant agree that this Lease is a true lease and does not represent a financing arrangement. Each party shall reflect the transaction represented hereby in all applicable books, records and reports (including income tax filings) in a manner consistent with " true lease" treatment rather than "financing" treatment.


(i)	COND IT ION.

Tenant acknowledges that Tenant is fully familiar with the physical condition of the Premises and that Landlord makes no representation or warranty express or implied , with respect to same. Except for Landlord's covenant of quiet enjoyment set forth in Section 36, Landlord makes no and expressly hereby denies any representations or warranties regarding the condition or suitability of, or title to, the Premises to the extent permitted by Laws, and Tenant waives any right or remedy otherwise accruing to Tenant on account of the condition or suitability of the Premises, or, except with respect to Landlord's warranty set forth in Section 36, title to the Premises, and Tenant agrees that it takes the Premises "As Is," without any such representation or warranty, including, without limitation, any implied warranties. Tenant has examined the Premises and title to the Premises, and has found all of the same satisfactory for all purposes.


(j)	LIENS.

Tenant shall not, directly or indirectly, create, or permit to be created or to remain, and shall remove and discharge (including, without limitation, by any statutory bonding procedure or any other bonding procedure reasonably satisfactory to Landlord which shall be sufficient to prevent any loss of the Landlord's interest in the Premises) within thirty (30) days after obtaining knowledge thereof, any mortgage, lien, encumbrance or other charge on the Premises or the leasehold estate created hereby or any Fixed Rent or Additional Rent payable hereunder which arises due to any work done by or for Tenant, any labor, services, materials, supplies or equipment provided to or for Tenant, or any acts or omissions of Tenant. Landlord shall not be liable for any labor, services or materials furnished to Tenant or to any party holding any portion of the Premises through or under Tenant and no mechanic's or other liens for any such labor, services or materials shall attach to the Premises or the leasehold estate created hereby.


(k)	REPAIRS AND MAINTENANCE.

(a) Upon the expiration or termination of this Lease, Tenant shall be required to deliver the rail track structure

Exhibit 10.5

and rail roadbeds on the Premises in a condition that meets FRA Class 1 standards to the extent the structure and rail roadbeds located on the Premises as of the date hereof meet FRA Class 1 standards, or, to the extent any portion thereof does not meet such standards as of the Commencement Date, such portion shall be delivered in condition consistent with its condition as of the Commencement Date.

(b) Landlord shall not be required to make any repair, replacement, maintenance or other work whatsoever, or to maintain the Premises in any way, and Tenant waives the right to make repairs, replacements or to perform maintenance or other work at the expense of the Landlord, which right may be provided for in any Laws. Nothing in the preceding sentence shall be deemed to preclude Tenant from being entitled to insurance proceeds or awards for any taking, to the extent provided in this Lease.


(l)	COMPLIANCE WITH LAWS.

During the Term, Tenant shall comply with all Laws relating to the Premises. As used herein, (i) the term " L aws" shall mean all present and future laws, common law, statutes, codes, ordinances, orders, judgments, decrees, injunctions, rules, regulations and requirements, even if unforeseen or extraordinary, of every duly constituted governmental authority or agency (but excluding those which by their terms are not applicable to and do not impose any obligation on Tenant, Landlord or the Premises or which are due to take effect after expiration of the Term)

relating to the Premises or any portion thereof, or which may be applicable to Tenant, or which may be applicable to the use, manner of use, occupancy, possession, operation, maintenance, alteration, repair or reconstruction of the Premises. Nothing in this Lease shall be deemed a waiver of the preemptive effect of any federal or state law.

13. ACCESS TO PREMISES BY LANDLORD.

Upon reasonable advance notice to Tenant, and during Tenant's business hours, Landlord and Lender, if applicable, and their respective employees, contractors, agents, representatives, invitees and investors may enter onto the Premises to (i) show the Premises to purchasers and potential purchasers, and to mortgagees and potential mortgagees, or (ii) for the purpose of inspecting the Premises; provided, that, for purposes of clause (ii) of this sentence, Landlord shall not be required to give notice prior to entry onto the Premises in the event of an emergency situation provided, however, Landlord may not come within ten (10) feet of the centerline of any track infrastructure (except in the event of an emergency situation). Upon reasonable advance notice to Tenant, during the last one hundred fifty (150) days of the then-current Term, unless Tenant shall have exercised the next Renewal Option, Landlord also may enter onto the Premises to show the Premises to persons wishing to rent the same. No such entry shall constitute an eviction of Tenant but any such entry shall be done by Landlord in such reasonable manner as to reasonably minimize any disruption of Tenant's business operation. Landlord shall comply with, and shall cause any of its admittees pursuant to this section to comply with, Tenant's reasonable safety requirements related to entry upon active rail property. Any such entry by Landlord and its admittees upon the Premises may, at Tenant's discretion, be subject to mandatory escort by Tenant and shall not unreasonably interfere with Tenant's operations. Except with respect to any entry in a non-emergency situation in accordance with the terms of this Section 1 3, Tenant shall not be responsible for any damage or destruction of property or personal injury or death suffered on the Premises by Landlord, Lender or their respective employees, contractors, representatives, invitees or investors arising from such permitted entry pursuant to this Section 1 3, and Landlord shall indemnity and hold Tenant harmless from any claims for damage or destruction of property or personal injury or death asserted against Tenant by any such persons in connection with such entry.


14.	WAIVER OF SUBROGATION.

Notwithstanding anything in this Lease to the contrary, Landlord and Tenant each waive any rights of action for negligence against the other party, which rights of action may arise during the Term for damage to the Premises or to the property therein resulting from any fire or other casualty, but only to the extent covered by insurance.


15.	DAMAGE; DESTRUCTION.

(a) In the event of any damage to or destruction of the Premises by fire, flood or other casualty during the Term (a " Casualty"), Tenant shall give Landlord and Lender, if applicable, prompt written notice thereof. Tenant shall adjust, collect and compromise any and all claims covered by insurance. Thereafter, Tenant shall promptly send Landlord copies of all material notices, correspondence and pleadings given or received by Tenant relating to any such Casualty .

(b) In the event of any such Casualty (whether or not insured against), the Term shall continue, and there shall

Exhibit 10.5

be no abatement or reduction of Fixed Rent, Additional Rent or of any other sums payable by Tenant hereunder.

(c) Following any Casualty, Tenant shall take reasonable steps to ensure that the Premises are secure and do not pose any risk or harm to any persons or to any adjoining property. Tenant shall repair and restore the Premises as nearly as possible to at least a condition as required by Section 11 and subject to Section 18 (such restoration or repair of the Premises, whether in connection with a Condemnation or a Casualty, as the context requires, herein called a " R estoration") in accordance with all Laws and all other terms of this Lease.

(d) Tenant waives the benefit of any Law that provides Tenant any abatement or termination rights by virtue of a Casualty. To the extent that (i) termination rights by virtue of a Casualty are unwaivable under Laws and (ii) this Lease is terminated as a result of a Casualty, Tenant's obligation to repair and restore any damaged portion of the Premises pursuant to Section 14(c) above shall expressly survive any such termination, and Tenant, its agents and contractors have the right of entry upon the Premises to conduct such repair and Restoration.


16.	CONDEMNATION.

(a) Promptly upon obtaining knowledge of any proceeding for condemnation or eminent domain that has been filed in a court of competent jurisdiction with respect to the Premises, Tenant and Landlord shall each notify the other, and each shall be entitled to participate in such proceeding at their respective expense. In connection with any final adjudication of rights of a third party to take possession of all or part of the Premises (a "Taking" or " C ondemnation"), if such Taking constitutes (i) a Major Condemnation, Landlord shall be entitled to the entire amount of any award or payment with respect to such taking, and Tenant hereby irrevocably assigns to Landlord any rights of Tenant to any such award or payment in respect of any Condemnation of the Premises (including, but not limited to any award or payment granted for the residual value of Tenant's leasehold interest pursuant to this Lease), or (ii) a Minor Condemnation, Landlord shall be entitled to the entire amount of any award or payment with respect to its interest in the Premises, and Tenant shall be entitled to the entire amount of any award or payment with respect to its leasehold interest.

(b) In the event of a Taking of (i) the entire Premises or (ii) a material portion of the land comprising the Premises which would, in Tenant's reasonable judgment, result in a loss of use of more than fifty percent (50%) of the rail track space on the Premises (a "Major C ondemnation"), then not later than ninety (90) days after the Taking has occurred, Tenant may serve written notice upon Landlord ( " Tenant's Termination N otice") of Tenant's intention to terminate this Lease on any Fixed Rent payment Due Date specified in such notice, which Due Date shall be no sooner than ninety (90) days after Tenant's Termination Notice but, in any event, not later than the last day of the Term of this Lease (such date, the "Lease Condemnation Termination D ate"). If a Major Condemnation occurs, all Fixed Rent, Additional Rent and other charges due under this Lease, up and through the Lease Condemnation Termination Date, shall be payable on or before the Lease Condemnation Termination Date.

(c) In the event of any Taking of a portion of the Premises which does not result in a termination of this Lease (a " Minor C ondemnation"), this Lease shall terminate only with respect to such the part of the Premises which are the subject of such Taking. Tenant shall promptly commence and diligently complete the Restoration of the Premises in accordance with all Laws and all other terms of this Lease, provided that Tenant shall not be obligated to expend more than the amount of the award payable to Tenant under this Lease in connection with such Minor Condemnation. If a Minor Condemnation occurs, the Fixed Rent due to Landlord shall be reduced by the percentage of the rail track space that is lost in connection with such Taking.

(d) Notwithstanding anything in this Lease to the contrary, if there is a Taking with respect to any real property located below the grade level of the Premises (a "Sub-Surface T aking") (whether for pipelines or other purposes), as long as such taking does not result in a Major Condemnation, the Term shall continue and there shall be no abatement or reduction of Fixed Rent, Additional Rent or of any other sums payable by Tenant pursuant to this Lease.

(e) Tenant shall retain its rights under applicable Law to oppose any proposed Taking (but Tenant shall nevertheless be subject to any Taking that is effected notwithstanding any attempts by Tenant to oppose such Taking).


17.	ASSIGNMENT AND SUBLETTING.

(a) Tenant shall not have the right to assign this Lease, or to sublet the whole or any part of the Premises without the prior written consent of Landlord, which consent may be granted or withheld in Landlord's sole and absolute discretion; provided, however, (i) Tenant may assign its right under this Lease without the consent of Landlord (A) if such assignment occurs as a result of a sale or transfer of all or substantially all of Tenant's assets located within a one hundred (100) mile radius of the Dayton, Texas area, or (B) pursuant to a merger, sale, consolidation or combination of Tenant or by order or decree of any governmental authority, and

Exhibit 10.5

(ii) Tenant may sublet any portion of the Premises if the terms of the proposed sublease require the sublessee to maintain the portion of the Premises covered by such sublease in a manner consistent with the standard of maintenance that Tenant utilizes for similar facilities owned by Tenant of similar size, but in no event less than the standards required under the terms of this Lease. In the event of a subletting hereunder, Tenant shall deliver to Landlord a copy of such sublease within fifteen (15) days after execution thereof. In the event of any assignment of Tenant's interest in this Lease or any subletting of all or any portion of the Premises, Tenant, and its successors and assigns shall remain fully liable for all obligations of Tenant hereunder, which liability of Tenant shall be and remain that of a primary obliger and not a guarantor or surety. Tenant agrees that in the case of an assignment of this Lease, Tenant shall, within fifteen (15) days after the execution and delivery of any such assignment, deliver to Landlord (i) a duplicate original of such assignment in recordable form and (ii) an agreement executed and acknowledged by the assignee in recordable form whereby the assignee shall agree to assume, observe and perform all of the terms and provisions of this Lease on the part of the Tenant to be observed and performed from and after the date of such assignment. Tenant agrees that in the case of an assignment of this Lease requiring written consent of Landlord, Tenant shall deliver copies of any such assignment(s) to Landlord upon request of Landlord. Notwithstanding anything herein to the contrary, in connection with Tenant's exercise of its right of first offer pursuant to Section 44 or its right of first refusal pursuant to Section 45, Tenant may assign its purchase rights (but not its obligations) to an exchange intermediary pursuant to Section 46 without the consent of Landlord.

(b) Subject to Section 44 and Section 45 , Landlord may freely transfer the Premises and this Lease without the consent of Tenant.


18.	ALTERATIONS.

(a) Tenant may make any structural or non-structural, interior and/or exterior alterations, changes, modifications, additions, improvements, reconstructions or replacements at the Premises which are in compliance with the terms of the Property Agreements (individually, "Alteration" and collectively, the " Alterations"), provided, however, that (i) Tenant shall obtain the prior written consent of Landlord, which consent may be granted or withheld in Landlord's sole and absolute discretion, to any Alteration which materially adversely affects the use of the Access Areas, and (ii) Tenant shall obtain the prior written consent of Landlord, which consent shall not be unreasonably withheld or delayed, to any structural Alteration of the Building or any Alteration that materially affects the gas, heating, plumbing, or any other systems servicing the Premises. All Alterations shall comply with applicable Laws.

(b) Tenant agrees that in connection with any Alteration: (i) all such Alterations shall be performed in a good and workmanlike manner, and in compliance with all applicable Laws;

(ii) Tenant shall promptly pay all costs and expenses of any such Alteration; (iii) Tenant shall procure and pay for all permits and licenses required in connection with any such Alteration required by applicable Laws; and (iv) to the extent required under applicable Laws, all Alterations shall be made under the supervision of an architect or engineer and in accordance with plans and specifications which shall be submitted to Landlord (for information purposes only) prior to the commencement of the Alterations.


19.	SIGNS.

At Tenant's sole cost, Tenant may install, replace, relocate and maintain and repair in and on the Building, such signs, awnings, lighting effects and fixtures as may be used from time to time by Tenant (collectively, "Signs"). All Signs of Tenant shall comply with Laws.


20.	SURRENDER.

At the expiration or within 30 days after any earlier termination of this Lease, Tenant shall surrender the Premises to Landlord in the condition required by Section 11. All Alterations existing on the Premises at such time, except Tenant's furniture and those moveable trade fixtures that are located inside the Buildings, such as computer(s) and other similar moveable equipment and shelving (collectively, " Building Trade F ixtures"), shall become the property of Landlord and shall remain upon and be surrendered with the Premises as a part thereof at the termination or other expiration of the Term. At the expiration or termination of the Term, Tenant shall remove its Building Trade Fixtures and all rail cars, locomotives and other equipment or personal property as well as its Signs and identification marks, from the Premises and repair any and all damage caused

Exhibit 10.5

by such removal. Building Trade Fixtures and other personal property of Tenant not so removed at the end of the Term or within thirty (30) days after the earlier termination of the Term for any reason whatsoever shall, at Landlord's sole option, be deemed abandoned and shall become the property of Landlord, and Landlord may thereafter cause such property to be removed from the Premises. If Tenant fails to remove any such property from the Premises, the reasonable cost of removing and disposing of such property and repairing any damage to any of the Premises caused by such removal shall be borne by Tenant. Landlord shall not in any manner or to any extent be obligated to reimburse Tenant for any property that becomes the property of Landlord as a result of such expiration or earlier termination. The provisions of this Section 20 shall survive the termination or expiration of this Lease.

At any time during the Term, Tenant may remove the Building Trade Fixtures, as well as its Signs and identification marks, from the Premises, provided Tenant repairs any and all damage caused by such removal.


21.	SUBORDINATION OF LEASE.

(a) This Lease shall be subject and subordinate to any Mortgage and to all advances made upon the security thereof, provided that any such Lender shall execute and deliver to Tenant a subordination, non-disturbance and attornment agreement in the form attached hereto as Exhibit C or such other commercially reasonable form as any Lender may request that is generally consistent with the form attached hereto as Exhibit C ("SNDA Agreement"), which SNDA Agreement shall provide that such Lender recognizes this Lease and agrees to not disturb Tenant's possession of the Premises in the event of foreclosure if Tenant is not then in default hereunder beyond any applicable cure period. This Lease shall not be subordinate to any Mortgage for which the Lender has not entered into such SNDA Agreement notwithstanding any consent provided by Tenant pursuant to Sections l(m) or 21(c) . Tenant agrees, upon receipt of such SNDA Agreement, to execute such SNDA Agreement and such further reasonable instrument(s) as may be necessary to so subordinate this Lease; provided such SNDA Agreement and other instrument(s) are consistent with the terms of this Lease. The term "Mortgage" shall include any mortgages, deeds of trust or any other similar hypothecations of the Premises securing Lender's Loan to Landlord , regardless of whether or not such Mortgage is recorded.

(b) Tenant agrees to attom, from time to time, to any Lender, and to any purchaser of the Premises, for the remainder of the Term, provided that such Lender or such purchaser shall then be entitled to possession of the Premises, subject to the provisions of this Lease. This subsection shall inure to the benefit of any Lender or such purchaser, shall apply notwithstanding that, as a matter of Law, this Lease may terminate upon the foreclosure of the Mortgage (in which event the parties shall execute a new lease for the remainder of the Term containing the provisions of this Lease), shall be self-operative upon any such demand, and no further instrument shall be required to give effect to said provisions. Each such party shall however, upon demand of the other, execute instruments in confirmation of the foregoing provisions reasonably satisfactory to the requesting party acknowledging such subordination, non disturbance and attomment and setting forth the terms and conditions hereof.

(c) Subject to Tenant's rights under this Section 2 1, Tenant hereby consents to any assignment of this Lease by Landlord to or for the benefit of any Lender as security for any loan provided by such Lender.

(d) If any Lender (or such Lender's successor) acquires Landlord's interest in the Lease or the Premises, such acquisition shall be subject to the terms of this Lease. Tenant agrees that any such transferee shall not be:

(i) liable for any act or omission of Landlord;

(ii) bound by any payment of Fixed Rent or Additional Rent that Tenant might have paid more than one month in advance of the due date thereof.


22.	INTENTIONALLY OMITTED.


23.	UTILITIES.

Tenant agrees to make its own arrangements for and to timely pay for all utilities consumed by it in

Exhibit 10.5

the Premises.


24.	TENANT DEFAULT.

(a) Any of the following occurrences or acts shall constitute an "Event of Default" under this Lease: if (i) Tenant shall default in the payment when due of any installment of Fixed Rent payable hereunder, and such default shall continue for twenty (20) days after the Due Date thereof; or (ii) Tenant shall default in the payment when due of any installment of Additional Rent payable hereunder and such default shall continue for thirty (30) days after written notice of such default is sent to Tenant by Landlord; or (iii) Tenant shall default in fulfilling any of the other covenants, agreements or obligations of this Lease, and such default shall continue for more than thirty (30) days after written notice thereof from Landlord specifying such default, provided, that if Tenant has commenced to cure within said thirty (30) days, and thereafter is in good faith diligently prosecuting same to completion, said thirty (30) day period shall be extended, for a reasonable time (not to exceed an additional one hundred eighty (180) days); or

(iv) any material representation or warranty made by Tenant to Landlord in this Lease is materially false when made; or (v) Tenant (A) shall make any assignment or other act for the benefit of creditors, (B) shall file a petition or take any other action seeking relief under any state or federal insolvency or bankruptcy laws, or (C) shall have an involuntary petition or any other action filed against either of them under any state or federal insolvency or bankruptcy laws which petition or other action is not vacated or dismissed within ninety (90) days after the commencement thereof; or (vi) any execution or attachment shall be issued against Tenant or any of its interest in the Premises and the same shall not be bonded, dismissed, or discharged as required by this Lease; or (vii) the estate or interest of Tenant in the Premises shall be levied upon or attached in any proceeding and such estate or interest is about to be sold or transferred and such process shall not be vacated or discharged within sixty (60) days after such levy or attachment.

(b) If an Event of Default shall have occurred and be continuing, Landlord shall be entitled to all remedies available at law or in equity. Without limiting the foregoing, to the extent permitted by applicable Law, Landlord shall have the right to give Tenant notice of Landlord's termination of the Term of this Lease. Upon the giving of such notice, the Term of this Lease and the estate hereby granted shall expire and terminate on such date as fully and completely and with the same effect as if such date were the date herein fixed for the expiration of the Term of this Lease, and all rights of Tenant hereunder shall expire and terminate, but Tenant shall remain liable as hereinafter provided.

(c) If an Event of Default shall have occurred and be continuing, to the extent permitted by applicable law, Landlord shall have the immediate right, whether or not the Term of this Lease shall have been terminated pursuant to Section 24(b), to re-enter and repossess the Premises and the right to remove all persons and property therefrom by summary proceedings, ejectment, any other legal action or in any lawful manner Landlord determines to be necessary or desirable. Landlord shall be under no liability by reason of any such reentry, repossession or removal. No such re-entry, repossession or removal shall be construed as an election by Landlord to terminate this Lease unless a notice of such termination is given to Tenant pursuant to Section 24(b) .

(d) At any time or from time to time after a re-entry, repossession or removal pursuant to Section 24(c), whether or not the Term of this Lease shall have been terminated pursuant to Section 24(b), to the extent permitted by applicable Law Landlord may (but, except to the extent expressly required by any applicable Law, shall be under no obligation to) relet the Premises for the account of Tenant, in the name of Tenant or Landlord or otherwise, without notice to Tenant, for such term or terms and on such conditions and for such uses as Landlord, in its absolute discretion, may determine. Landlord may collect any rents payable by reason of such reletting. Landlord shall not be liable for any failure to relet the Premises or for any failure to collect any rent due upon any such reletting.

(e) To the extent permitted by applicable Law, no expiration or termination of the Term of this Lease pursuant to Section 24(b), by operation of law or otherwise, and no re-entry, repossession or removal pursuant to Section 24(c) or otherwise, and no reletting of the Premises pursuant to Section 24(d) or otherwise, shall relieve Tenant of its liabilities and obligations hereunder, all of which shall survive such expiration, termination, re-entry, repossession, removal or reletting.

(f) In the event of any expiration or termination of the Term of this Lease or re-entry or

Exhibit 10.5

repossession of the Premises or removal of persons or property therefrom by reason of the occurrence of an Event of Default, Tenant shall pay to Landlord all Fixed Rent, Additional Rent and other sums required to be paid by Tenant, in each case together with interest thereon at the Lease Default Rate from the due date thereof to and including the date of such expiration, termination, re-entry, repossession or removal; and thereafter, Tenant shall, until the end of what would have been the Term of this Lease in the absence of such expiration, termination, re-entry, repossession or removal and whether or not the Premises shall have been relet, be liable to Landlord for, and shall pay to Landlord, as liquidated and agreed current damages: (i) all Fixed Rent, Additional Rent and other sums which would be payable under this Lease by Tenant in the absence of any such expiration, termination, re-entry, repossession or removal. Tenant shall pay such liquidated and agreed current damages on the dates on which Fixed Rent would be payable under this Lease in the absence of such expiration, termination, re-entry, repossession or removal, and Landlord shall be entitled to recover the same from Tenant on each such date.

(g) At any time after any such expiration or termination of the Term of this Lease or re-entry or repossession of the Premises or removal of persons or property thereon by reason of the occurrence of an Event of Default, whether or not Landlord shall have collected any liquidated and agreed current damages pursuant to Section 24(f), Landlord shall be entitled to recover from Tenant, and Tenant shall pay to Landlord on demand, as and for liquidated and agreed final damages for Tenant's default, an amount equal to the sum of (i) the excess, if any of (A) the aggregate of all Fixed Rent, Additional Rent and other sums which would be payable under this Lease, in each case from the date of such demand (or, if it be earlier, the date to which Tenant shall have satisfied in full its obligations under Section 24(f) to pay liquidated and agreed current damages) for what would be the then-unexpired Term of this Lease in the absence of such expiration, termination, re-entry, repossession or removal, discounted at the rate equal to the then rate on U.S. Treasury obligations of comparable maturity to such Term (the "Discount R ate") over (B) the then current fair market rent for the Premises for the balance of the Term (as determined by an independent third-party appraiser selected by Landlord) discounted at the Discount Rate plus (ii) all reasonable legal fees and other costs and expenses incurred by Landlord as a result of Tenant's default under this Lease. If any Law shall limit the amount of liquidated final damages to less than the amount above agreed upon, Landlord shall be entitled to the maximum amount allowable under such Law.

Mention in this Lease of any particular remedy shall not preclude Landlord from any other remedy at law or in equity, including the right of injunction. Tenant waives any rights of redemption granted by any Laws if Tenant is evicted or dispossessed, for any cause, or if Landlord obtains possession of the Premises by reason of an Event of Default.

(h) In no event shall Tenant be liable to Landlord or any other person for consequential, special, indirect or punitive damages (including, without limitation, lost profits), except with respect to consequential and/or indirect damages that may be covered by Tenant's indemnity under Section 2 7.


25.	LANDLORD DEFAULT.

If Landlord defaults in the performance of any of its obligations under this Lease, Tenant shall notify Landlord of the default, and Landlord shall have thirty (30) days after receipt of such notice to cure the specified default. If Landlord is not reasonably able to cure the specified default within such 30-day period, Landlord shall have such additional period of time as is reasonably necessary to cure the specified default, provided Landlord commences the cure within the 30-day period and thereafter for a reasonable period of time diligently pursues and effects the cure. In no event shall Landlord be liable to Tenant or any other person for consequential, special, indirect or punitive damages, including, without limitation, claims for lost profits. In the event of a default by Landlord which is not cured after notice and within the applicable cure period, Tenant shall be entitled to exercise all remedies available at law or in equity, subject in all instances to the terms and conditions of this Lease (including, without limitation, Section 8 and Section 36 ), including rights of injunction and specific performance. Tenant shall be entitled to recover from Landlord and Landlord shall pay to Tenant within 15 days after demand all reasonable legal fees and other reasonable costs and expenses incurred by Tenant as a result of enforcing its rights in connection with Landlord's default under this Lease.


26.	RENT PAYMENTS.

If Landlord's interest in this Lease shall pass to another, or if the Fixed Rent or Additional Rent

Exhibit 10.5

hereunder shall be assigned, or if a party, other than Landlord, shall become entitled to collect the Fixed Rent or Additional Rent due hereunder, then notice thereof shall be given to Tenant by Landlord in writing, or, if Landlord is an individual and shall have died or become incapacitated, by Landlord's legal representative, accompanied by due proof of the appointment of such legal representative. Until such notice and proof shall be received by Tenant, Tenant may continue to pay the rent due hereunder to the one to whom, and in the manner in which, the last preceding installment of rent hereunder was paid, and each such payment shall fully discharge Tenant with respect to such payment.

Tenant shall not be obligated to recognize any agent for the collection of rent or otherwise authorized to act with respect to the Premises until written notice of the appointment and the extent of the authority of such agent shall be given to Tenant by the one appointing such agent. Tenant shall be entitled to rely on any such written notice appointing such agent and on any notices given by such agent as if such notice were given by Landlord until it has received written notice from Landlord revoking the authority granted to such agent, and Tenant shall be credited for all payments made in reliance on such written notices.


27.	HOLDOVER.

If Tenant shall hold over after the expiration date of the Term, or if Tenant shall hold over after the date specified in any termination notice given by Tenant under Section 16(b), then, in either such event, Tenant shall be a month-to-month Tenant on the same terms as herein provided, except that the monthly Fixed Rent will be (i) for the first three months after the expiration of the Term, 150% of the monthly Fixed Rent, (ii) for the fourth through sixth months after the expiration of the Term, 200% of the monthly Fixed Rent, and (iii) for the seventh month after the expiration of the Term and each month thereafter, 300% of the monthly Fixed Rent, which, in each case, was payable by Tenant during the final year of the Term (or, if applicable, Extension Period) immediately preceding such holdover period. No holding over by Tenant or payment or acceptance of rent after the expiration of termination of this Lease shall be construed to extend or renew the Term or in any other manner be construed as permission by Landlord to hold over nor shall any Fixed Rent paid during the hold over set any precedence as to future lease negotiations between Tenant and Landlord. In the event Tenant shall be or become a holdover tenant, Tenant shall also indemnify Landlord against all claims for damages against Landlord as a result of Tenant's possession of the Premises, including, without limitation, claims for damages by any tenant to whom Landlord may have leased the Premises, or any portion thereof, for a term commencing after the expiration or termination of this Lease and for all other losses, costs and expenses, including reasonable attorneys' fees, incurred by reason of such holding over.


28.	NOTICES.

Whenever, pursuant to this Lease, notice, consent, approval, request or demand shall or may be given to either of the parties by the other, and whenever either of the parties shall desire to give to the other any notice, consent, approval, request or demand with respect to this Lease or the Premises, each such notice, consent, approval, request or demand shall be in writing, and any Laws to the contrary notwithstanding, shall not be effective for any purpose unless the same shall be given or served as follows: by mailing the same to the other party by registered or certified mail, return receipt requested, or by delivery by nationally recognized overnight courier service provided a receipt is required, at its Notice Address set forth in Section 1 , or at such other address as either party may from time to time designate by notice given to the other. The date of receipt of the notice or demand shall be deemed the date of the service thereof (unless delivery of the notice or demand is refused or rejected, in which case the date of such refusal or rejection shall be deemed the date of service thereof).


29.	INDEMNITY.

Tenant shall defend Landlord and its successors and assigns and any of their respective owners, partners, trustees, beneficial owners, members, managers, employees, agents, officers, directors or shareholders, together with any Lender, and any owner, partner, member, manager, trustee, beneficial owner, officer, director, shareholder, employee or agent of any Lender or any holder of a pass-through or similar certificate issued by a Lender (herein, collectively, " Indemnified P arties") with respect to, and shall pay, protect, indemnify and hold harmless the Indemnified Parties from and against, any and all liabilities, losses, damages, penalties, costs, expenses (including, without limitation, reasonable attorneys' fees and expenses), causes of action, suits, claims, demands or judgments of any nature whatsoever, however caused, (a) to which any Indemnified Party is subject

Exhibit 10.5

because of Tenant's activities in the Premises or the Access Areas or in any other real property, easements, track or roadbed used by Tenant adjacent to or in the vicinity of the Premises or the Access Areas, or (b) arising from (i) injury to or death of any person or persons or damage to or loss of property, real or personal, in any manner arising therefrom, occurring on the Premises or on the Access Areas or from Tenant's activities in the Premises or the Access Areas or connected with the use, non-use, condition, occupancy, design, construction, maintenance, repair or rebuilding of any thereof, whether or not such Indemnified Party has or should have knowledge or notice of the defect or conditions, if any, causing or contributing to said injury, death, loss, damage or other claim, (ii) Tenant's violation of this Lease, (iii) any act or omission of Tenant or its agents, contractors, licensees, subtenants or invitees, and (iv) any contest referred to in Section 32(b); provided, that Tenant shall not be required to indemnify, defend or hold harmless any Indemnified Party for any such matters arising due to the sole negligence of an Indemnified Party in circumstances where there is no contributing negligence by Tenant or its agents, contractors, licensees, subtenants or invitees, or gross negligence or the willful misconduct of such Indemnified Party. Tenant covenants upon notice from such Indemnified Party to defend such Indemnified Party in such action, with the expenses of such defense paid by Tenant; provided, that in connection with Tenant's obligations to provide a defense of the Indemnified Parties hereunder, Tenant shall be entitled to use the same counsel to defend such Indemnified Parties so long as defense of multiple parties is reasonable under the circumstances and so long as such common defense does not limit any reasonable claims or defenses which could be raised by any such Indemnified Parties. The obligations of Tenant under this Section 29 shall survive any termination or expiration of this Lease with respect only to liabilities accruing or related to incidents, acts, omissions or circumstances occurring prior to termination or expiration of this Lease.

Notwithstanding the foregoing , the parties ' rights and obl i gations with respect to matters set forth in Section 40 regarding Hazardous Material s shall be g overned by Section 40 rather than this Section 2 9 .


30.	INTENTIONALLY OMITTED.


31.	INTENTIONALLY OMITTED.


32.	TAXES.

(a) Subject to the provisions hereof relating to contests, Tenant shall pay and discharge, before any interest or penalties are due thereon, all of the following taxes , charges, assessments , levies and other items imposed by any governmental authority (collectively , "Tax" or " T axes"), even if unforeseen or extraordinary, which are imposed, assessed, or become due on or subsequent to the Commencement Date during the Term, regardless of whether payment thereof is due prior to, during or after the Term: all Taxes of every kind and nature (including, without limitation, real, ad valorem and personal property), on or with respect to the Premises, the Fixed Rent or Additional Rent payable hereunder, this Lease or the leasehold estate created hereby; all charges and/or assessments for any easement or agreement maintained for the benefit of the Premises; and all general and special assessments, levies, water and sewer assessments and other utility charges , use charges and rents and all other public charges and/or Taxes whether of a like or different nature. Landlord shall promptly deliver to Tenant any bill or invoice Landlord receives with respect to any Tax; and Landlord's failure to deliver any such bill or invoice shall defer Tenant's obligation to pay such Tax until thirty (30) days from Tenant's receipt of written notice thereof . Landlord agrees to cooperate with Tenant to enable Tenant to receive tax bills directly from the respective taxing authorities. Nothing herein shall obligate Tenant to pay, and the term "Taxes" shall exclude (unless the Taxes referred to in clauses (i) and (ii) below are in lieu of or a substitute for any other Tax or assessment upon or with respect to any of the Premises which, if such other Tax or assessment were in effect on the date hereof, would be payable by Tenant hereunder or by Law) , federal, state , local or foreign (i) franchise tax (including, without limitation, Texas franchise taxes), or capital stock or similar Taxes, if any, of Landlord, (ii) income, excess profits or other Taxes, if any, of Landlord, determined on the basis of or measured by Landlord's net income , (iii) any estate, inheritance , succession , gift , capital levy or similar Taxes of Landlord, (iv) Taxes imposed upon Landlord under Section 59A of the Internal Revenue Code of 1986, as amended, or any similar state, local, foreign or successor provision , (v) any amounts paid by Landlord pursuant to the Federal Insurance Contribution Act (commonly referred to as FICA), the Federal Unemployment Tax Act (commonly referred to as FUTA), or any analogous state unemployment tax act, or any other payroll related Taxes, including, but not limited to, any required withholdings relating to wages, (vi) any Taxes in connection with the transfer or other disposition of any interest (including, without limitation, any Taxes arising out of a change of control of Landlord or any other Person (other than Tenant and holder of any direct or indirect interest in Tenant) holding an interest in the Premises) , other than Tenant's (or any person claiming under Tenant), in the Premises or this Lease , to any person or entity, including, but not limited to, any transfer, capital gains, sales , gross receipts , value added, income , stamp , real property gains or withholding Tax , and (vii) any interest, penalties, professional fees or other charges relating to any item listed in clauses (i) through (vi) above; provided, further, that Tenant is not responsible for making any additional payments in excess of amounts which would have otherwise

Exhibit 10.5

been due, as Tax or otherwise, but for a withholding requirement which relates to the particular payment and such withholding is in respect to or in lieu of a Tax which Tenant is not obligated to pay; and provided, further, that if at any time during the Term of this Lease, the method of taxation shall be such that there shall be assessed, levied, charged or imposed on Landlord a Tax upon the value of the Premises or any present or future improvement or improvements on the Premises, including any Tax which uses rents received from Tenant as a means to derive value of the property subject to such Tax, then all such levies and Taxes or the part thereof so measured or based shall be payable by Tenant, but only to the extent that such levies or Taxes would be payable if the Premises were the only property of Landlord, and Tenant shall pay and discharge the same as herein provided. In the event that any assessment against the Premises is payable in installments, Tenant may pay such assessment in installments; and in such event, Tenant shall be liable only for those installments which become due and payable prior to or during the Term, or which are appropriately allocated to the Term even if due and payable after the Term. Tenant shall deliver, or cause to be delivered, to Landlord and Lender, if applicable, promptly upon Landlord's written request, evidence reasonably satisfactory to Landlord and Lender, if applicable, that the Taxes required to be paid pursuant to this Section 32 have been so paid and are not then delinquent.


(b)	Tax Contests

(i) If a written claim is made against Landlord for Taxes with respect to which Tenant may be liable, Landlord shall promptly give Tenant notice in writing of such claim and shall furnish Tenant with a copy of the claim received from the taxing authority.

(ii) After prior written notice to Landlord, at Tenant's sole cost, Tenant may contest (including seeking an abatement or reduction of) in good faith any Taxes with respect to which Tenant may be liable hereunder; provided, that (i) Tenant first shall satisfy any Laws, including, if required, that the Taxes be paid in full before being contested, (ii) no Event of Default has occurred and is continuing, and (iii) failing to pay such Taxes will not subject Landlord to criminal or civil penalties or fines or to prosecution for a crime, or result in the sale, forfeiture or loss of any portion of the Premises, the Fixed Rent or any Additional Rent. Tenant agrees that each such contest shall be promptly and diligently prosecuted to a final conclusion, except that Tenant shall have the right to attempt to settle or compromise such contest through negotiations. Tenant shall pay and shall indemnify, defend and hold Landlord and all other Indemnified Parties harmless against any and all losses, judgments, decrees and costs (including, without limitation, all reasonable attorneys' fees and expenses) in connection with any such contest and shall promptly, after the final determination of such contest, fully pay and discharge the amounts which shall be levied, assessed, charged or imposed or be determined to be payable therein or in connection therewith, together with all penalties, fines, interest, costs and expenses thereof or in connection therewith, and perform all acts the performance of which shall be ordered or decreed as a result thereof. At Tenant's sole cost, Landlord shall assist Tenant as reasonably necessary with respect to any such contest, including joining in and signing applications or pleadings. Any rebate applicable to any portion of the Term shall belong to Tenant.


33.	INSURANCE.

(a) Tenant shall maintain All-Risk insurance for the Building for one hundred percent (100%) of its replacement value. Said All-Risk policy shall not exclude flood coverage if the Premises is located in a Flood Zone A, and shall not exclude earthquake coverage.

(b) Tenant shall maintain Commercial General Liability insurance reasonably acceptable to Landlord in an amount of at least TEN MILLION DOLLARS ($10,000,000) per occurrence, with a deductible not to exceed THREE HUNDRED FIFTY THOUSAND DOLLARS ($350,000), except that the deductible requirement shall not be applicable if Tenant self-insures pursuant to Section 33(j). Such insurance shall name Landlord and Lender as an additional insured and shall include coverage for (i) property damage liability, including but not limited to, damage or destruction of any and all property including public liability, bill of lading and foreign line rolling stock, (ii) seepage and pollution liability, and (iii) contractual liability for the liability assumed in this Lease. All General Liability policies shall have both the Railroad and XCU exclusions removed.

(c) Tenant shall maintain Pollution Liability Coverage, if not specifically provided under the general liability policy, in an amount of at least FIVE MILLION DOLLARS ($5,000,000) per occurrence, with a deductible not to exceed THREE HUNDRED FIFTY THOUSAND DOLLARS ($350,000), except that the deductible requirement shall not be applicable if Tenant self-insures pursuant to Section 33(j) .

Exhibit 10.5

(d) Tenant shall maintain Business Automobile Coverage Insurance containing a combined single limit of at least ONE MILLION DOLLARS ($1,000,000) per occurrence or claim, with a deductible not to exceed THREE HUNDRED FIFTY THOUSAND DOLLARS ($350,000) including but not limited to coverage for bodily injury and property damage and any and all vehicles owned, used or hired. The deductible requirement in this Section 33(d) shall not be applicable if Tenant self-insures pursuant to Section 33(j).

(e) Tenant shall furnish to Landlord acceptable certificate(s) of insurance or other evidence of insurance reasonably acceptable to Landlord, including the signature of an authorized representative evidencing the required coverage, endorsements, and amendments and referencing the contract audit/folder number if available. Tenant shall notify Landlord and Lender in writing at least thirty (30) days prior to any cancellation or non-renewal of any insurance policy required herein. Each certificate of insurance, if applicable, must name Landlord and Lender as an additional insured.

(f) Tenants' insurance policies and each related certificate of insurance must include and reflect policy endorsements that provide (i) a waiver of insurer's right of subrogation against Landlord for all claims and suits, (ii) the tenant's policy shall be primary and non-contributing with respect to any insurance carried by Landlord, and (iii) a severability of interest endorsement.

(g) If any of the policies are written on a claims-made basis, Tenant shall provide coverage as required herein for a minimum of two (2) years following termination of this Lease.

(h) Intentionally Omitted.

(i) Any insurance policy shall be written by a reputable insurance company acceptable to Landlord or with a current Best's Guide Rating of A and Class VII or better, and authorized to do business in Texas.

(j) During such time as Tenant's long-term unsecured debt is rated at least "BBB-" by Standard & Poor's or "Baa3" by Moody's, Tenant may self-insure any or all of the coverage referred to in this Section 3 3, such that any self-insurance, deductible, self-insured retention or other financial responsibility may be covered directly by Tenant in lieu of insurance, provided that such self insurance program does not violate any Laws. Tenant shall provide Landlord with evidence indicating its decision to self-insure hereunder.

(k) The fact that insurance (including, without limitation, self-insurance) is obtained by Tenant shall not be deemed to release or diminish the liability of Tenant including, without limitation, liability under the indemnity provisions of this Lease. Damages recoverable by Tenant shall not be limited by the amount of the required insurance coverage. Any and all Landlord liabilities that would otherwise, in accordance with the provisions of this Lease, be covered by Tenant's insurance will be covered as if Tenant elected not to include a deductible, self insured retention or other financial responsibility for claims.

(l) All policies (applying to coverage listed above) shall contain no exclusion for punitive damages to the extent allowable by law. Allocated Loss Expense (as defined in the policy endorsements) shall be in addition to all policy limits for coverages referenced above.

(m) In the event Tenant does not self-insure in accordance with Section 33(j) , Tenant shall pay all premiums for the insurance required by this Section 33 as they become due, and shall renew or replace each policy, and shall deliver to Landlord a certificate or other evidence of the then existing policy and each renewal or replacement policy, not less than ten (10) days prior to the expiration of such policy. In the event of Tenant's failure to comply with any of the foregoing requirements of this Section 3 3, and such failure is not cured (whether by providing evidence of the insurance coverage required hereunder or, if Tenant is permitted to self insure pursuant to Section 33(j) , evidence of Tenant's decision to self insure), within fifteen (15) days after written notice thereof is given to Tenant by Landlord, Landlord shall be entitled to procure such insurance. Any sums so expended by Landlord, together with interest thereon from the date paid at the Lease Default Rate, shall be Additional Rent and shall be repaid by Tenant to Landlord, if accompanied by an invoice or other supporting documentation, immediately upon delivery of written demand therefor by Landlord.


34.	LANDLORD EXCULPATION.

Anything contained herein to the contrary notwithstanding, any claim based upon liability of Landlord

Exhibit 10.5

under this Lease shall be enforced only against the Landlord's interest in the Premises and shall not be enforced against the Landlord individually or personally other than with respect to fraud or the misappropriation of insurance or Condemnation proceeds. In no event shall any partner, shareholder, trustee, manager, member, beneficial owner, officer, director or other owner or agent of Landlord have any liability under this Lease.


35.	LANDLORD'S TITLE.

The Premises are demised and let subject to the Permitted Encumbrances without representation or warranty by Landlord regarding the Permitted Encumbrances. The recital of the Permitted Encumbrances herein shall not be construed as a revival of any Permitted Encumbrance which has expired.


36.	QUIET ENJOYMENT.

Landlord warrants and agrees that Tenant, on paying the Fixed Rent, Additional Rent and other charges due hereunder and performing all of Tenant's other obligations pursuant to this Lease, shall and may peaceably and quietly have, hold, and enjoy the Premises and have the Landlord's rights to use the Access Areas for the full Term, free from molestation, eviction, or disturbance by Landlord or by any other person(s) lawfully claiming by, through or under Landlord, subject to the Permitted Encumbrances.


37.	FINANCIAL STATEMENTS.

If requested by Landlord, Tenant hereby agrees to furnish to Landlord (i) on a quarterly basis, within forty-five (45) days of the end of each fiscal quarter, current unaudited financial statements (including a detailed balance sheet and income statement of Tenant), certified by an officer of Tenant; and (ii) on an annual basis, annual financial statements (including a detailed balance sheet and income statement of Tenant) audited by a certified public accountant acceptable to Landlord within sixty (60) days of the end of each fiscal year.


38.	BROKER.

Landlord and Tenant each represent and warrant that it has had no dealings or conversations with any real estate broker in connection with the negotiation and execution of this Lease. Landlord and Tenant each agree to defend, indemnify and hold harmless the other against all liabilities, including cost of counsel fees, arising from a breach of the foregoing representation. In the event of any breach of Landlord's representations under this Section 38 or any claim by Tenant against Landlord for any indemnity under this Section 3 8, Tenant shall have no right to abate or defer any payment of any Fixed Rent, Additional Rent and/or other amounts due under this Lease, or to exercise any rights of offset with respect thereto, and tenant hereby expressly waives any such rights that may exist at law, in equity or otherwise.


39.	TRANSFER OF TITLE.

In the event of any transfer(s) of the title to the Premises, Landlord (and in the case of any subsequent transfer, the then-grantor) automatically shall be relieved from and after the date of such transfer (except for violations of Section 44 and Section 45) of all liability with respect to the performance of any obligations on the part of said Landlord contained in this Lease that arise after the date of such transfer; provided that Landlord (or the then grantor) shall remain liable for any breach of this Lease by such Person that occurred prior to such transfer, and any other obligation to be performed by Landlord (or the then grantor) under this Lease arising from and after the date of such transfer, shall be paid or performed by the transferee. Subject to Section 44 and Section 4 5, Landlord may freely transfer the Premises and this Lease without the consent of Tenant.


40.	HAZARDOUS MATERIALS.

(a) For the purposes hereof, the term "Hazardous Materials" shall include , without limitation, any material, waste or substance which is (i) included within the definitions of "hazardous substances," "hazardous materials, " "toxic substances," "pollutant, " " contaminant" or "hazardous wastes" in or pursuant to any Laws, or subject to regulation under any Law; (ii) listed in the United States Department of Transportation Optional Hazardous Materials Table , 49 C.F.R. Section 172.101, as enacted as of the date hereof or as hereafter amended, or in the United States Environmental Protection Agency List of Hazardous Substances and Reportable Quantities , 40 C.F.R. Part 302, as enacted as of the date hereof or as hereafter amended; or (iii) explosive,

Exhibit 10.5

radioactive , asbestos, a polychlorinated biphenyl , petroleum or a petroleum product or waste oil, drilling fluids, hydraulic fracturing fluids, produced waters and wastes associated with the exploration, development or production of crude oil, natural gas or geothermal resources. The term " Environmental Laws " shall include all Laws pertaining to health, industrial hygiene, Hazardous Materials , the environment , or protection or restoration of endangered or threatened species or natural resources, including, but not limited to each of the following , as enacted as of the date hereof or as hereafter amended: the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. §9601 et seq.; the Resource Conservation and Recovery Act of 1976, 42 U.S.C. §6901 et seq.; the Toxic Substance Control Act, 15 U.S.C. §2601 et seq.; the Water Pollution Control Act (also known as the Clean Water Act) , 33 U.S.C.§1251 et seq. ; the Clean Air Act , 42 U.S.C. §7401 et seq.; and the Hazardous Materials Transportation Act, 49 U.S.C . §5101 et seq.

(b) Landlord and Tenant (i) shall each manage and conduct all of their respective activities on or relating to the Premises in compliance with Environmental Laws; and (ii) shall cooperate in good faith with each other's efforts to comply with Environmental Laws with respect to the Premises. Nothing contained in this Lease shall be construed to find Tenant in violation of this Lease in the event of a derailment within the Premises , where such derailment was not caused or contributed to by the gross negligence or willful misconduct of Tenant or its employees, contractors, agents, representatives, licensees, subtenants or invitees , as long as Tenant proceeds with due diligence to remediate any Hazardous Materials release caused by such derailment, as provided in Section 40(d) below.

(c) Tenant (i) shall comply with all Environmental Laws applicable to the Premises or to its use or occupancy of the Premises or its activities with respect to the Access Areas, (ii) will not use the Premises or the Access Areas or permit the use of the Premises for the storage or handling of any radioactive material or substance; (iii) will not use the Premises or the Access Areas or permit the use of the Premises for the storage or handling of any other Hazardous Materials, except in compliance with applicable Environmental Laws , (iv) will not install on the Premises or the Access Areas or permit the installation on the Premises of any underground storage tanks or surface impoundments, (v) shall cause any Alterations of the Premises to be done in a way which complies with applicable Environmental Laws, and (vi) shall not release or expose any person to any Hazardous Material at the Premises or the Access Areas , and shall prevent its employees, contractors, agents , representatives, licensees, subtenants and invitees from releasing or exposing any person to any Hazardous Material at the Premises or the Access Areas, in each case in violation of applicable Environmental Law or in a manner or amount that could reasonably be expected to result in any liability or obligation of Landlord or Tenant; provided, that a breach of the covenant contained in this clause (vi) shall not in itself constitute a default by Tenant under this Lease if such breach occurs during any period when Tenant's long term unsecured debt is rated at least "BBB-" by Standard & Poor's or "Baa3" by Moody's and Tenant is in compliance with all of its other obligations under this Section 40.

(d) Notwithstanding any provision of this Lease to the contrary, Tenant shall not use or permit the use of any Hazardous Materials in the Building, except for household and commercial cleaners and chemicals to maintain the Premises, provided that such use is in compliance with all Environmental Laws. Landlord and Tenant acknowledge that any or all of the cleaners and chemicals described in this paragraph may constitute Hazardous Materials. However, Tenant may use, store and dispose of same as herein set forth, provided, that in doing so Tenant complies with all Environmental Laws.

(e) Tenant shall be responsible for promptly initiating and diligently completing all investigation, site monitoring, containment, cleanup, removal, restoration or other remedial work (collectively, " Remedial W ork") to the extent required by Environmental Laws or any governmental authority with jurisdiction, and in compliance with Environmental Laws, of any Hazardous Materials release on or from the Premises during the Term and any Hazardous Materials release on or from the Access Areas that results from or occurs in connection with the occupancy, possession, or use of the Access Areas by Tenant or its employees , contractors, agents, representatives, licensees, subtenants and invitees. Notwithstanding the foregoing or anything contained in this Lease to the contrary, however, Tenant's obligation shall not apply to the extent Tenant reasonably demonstrates: (i) the Landlord or Landlord's employees , contractors, agents, representatives, licensees, subtenants or invitees exacerbate, cause or contribute to a Hazardous Materials release; (ii) Hazardous Materials have migrated in, on, or under the Premises or Access Areas from adjacent properties not under Tenant's use or control or (iii) such release was caused by the grantees of any easement granted by Landlord pursuant to the reservation set forth in Section 6(d); and, in each case, such release was not otherwise attributable to the operations of Tenant or its employees, contractors, agents, representatives, licensees, subtenants or invitees.

Exhibit 10.5

(f) To the extent that Tenant has knowledge thereof, Tenant shall promptly provide notice to Landlord of any of the following matters:

(i) any proceeding or investigation commenced or threatened by any governmental authority with respect to the presence of any Hazardous Material affecting the Premises or the Access Areas, to the extent related to the use of the Access Areas by Tenant or its employees, contractors, agents, representatives, licensees, subtenants or invitees;

(ii) all written notices of any pending or threatened investigation or claims made or any lawsuit or other legal action or proceeding brought by any person against (A) Tenant or Landlord or the Premises, or (B)- any other party occupying the Premises or any portion thereof, in any such case relating to any loss or injury allegedly resulting from any Hazardous Material or relating to any violation or alleged violation of Environmental Laws;

(iii) the release of or exposure of any person to any Hazardous Material at the Premises or the Access Areas, to the extent related to the use of the Access Areas by Tenant or its employees, contractors, agents, representatives, licensees, subtenants and invitees, which could reasonably be expected to require any Remedial Work pursuant to Environmental Law or which could reasonably be expected to result in any liability or obligation of Landlord or Tenant;

(iv) (iv)the discovery of any occurrence or condition on the Premises, of which Tenant becomes aware and which is not corrected within ten (10) days which reasonably could be expected to lead to the Premises or any portion thereof being in violation of any Environmental Laws; and

(v) the commencement and completion of any Remedial Work. Upon reasonable request by Landlord, Tenant shall also provide Landlord with copies of reports and sampling data submitted to governmental authorities related to such Remedial Work.

(g) Tenant agrees to defend (using legal counsel reasonably acceptable to Landlord), indemnify, hold harmless, and reimburse the Indemnified Parties for, from and against any and all liabilities, losses, damages, penalties, costs, expenses, judgments, demands, notices of claim or notices of violation, claims, actions (whether administrative or judicial) or suits, of any nature whatsoever, suffered, incurred, imposed upon or claimed against any Indemnified Parties to the extent arising from (i) the release of or exposure of any person to Hazardous Materials in, at, or from the Premises during the Term, or (ii) the release of or exposure of any person to Hazardous Materials to, in, at, or from the Access Areas during the Term caused by, contributed to or exacerbated by Tenant or its employees, contractors, agents, representatives, licensees, subtenants or invitees; provided, however, that this provision shall not apply (i) to the extent Landlord, its employees, contractors, agents, representatives, licensees, subtenants or invitees exacerbate, cause or contribute to the Hazardous Materials release, or (ii) Hazardous Materials have migrated in, on, or under the Premises or Access Areas from adjacent properties not under Tenant's use or control and such release was not otherwise attributable to the operations of Tenant or its employees, contractors, agents, representatives, licensees, subtenants or invitees. The obligations of Tenant under this Section 40(f) shall survive any termination or expiration of this Lease with respect only to liabilities accruing or related to incidents occurring prior to the termination or expiration of this Lease.

(h) Upon Landlord's request, at any time after the occurrence and during the continuation of an Event of Default hereunder or at such other time as Landlord has reasonable grounds to believe that Hazardous Materials are or have been released in a manner or amount that could reasonably be expected to require any Remedial Work or result in the liability or obligation of Landlord or Tenant, or that the Premises may be in violation of Environmental Laws, Tenant shall provide, at Tenant's sole cost and expense, an inspection or audit reasonably acceptable to Landlord of the portion of the Premises of concern (or the portion of the Access Areas of concern, to the extent such release relates to Tenant or its employees, contractors, agents, representatives, licensees, subtenants or invitees) prepared by a hydrogeologist or environmental engineer ("Environmental Consultant") reasonably acceptable to Landlord If Tenant fails to provide such inspection or audit within thirty (30) days after such request, Landlord may order the same, and Tenant hereby grants to Landlord and its Environmental Consultant access to the portion of the Premises of concern upon reasonable notice to undertake such inspection or audit. The cost of such inspection or audit shall be immediately paid

Exhibit 10.5

by Tenant on demand.

41. ESTOPPEL CERTIFICATE.

Tenant agrees to deliver to Landlord, from time to time as reasonably requested in writing (no more frequently than once per calendar quarter) by Landlord, and within a reasonable period of time after receipt of such request, an estoppel certificate in the form of Exhibit D-1 hereto, and containing such other information as may reasonably be requested by Landlord, addressed to such persons as Landlord may reasonably request.

Landlord agrees to deliver to Tenant, from time to time as reasonably requested in writing (no more frequently than once per calendar quarter) by Tenant, and within a reasonable period of time after receipt of such request, an estoppel certificate in the form of Exhibit D-2 hereto, and containing such other information as may reasonably be requested by Tenant, addressed to such persons as Tenant may reasonably request.


42.	NOTICE OF LEASE.

Landlord and Tenant agree to execute a short form Memorandum of Lease in the form attached as Exhibit E .


43.	MISCELLANEOUS.

(a) This Lease shall be governed and construed in accordance with the Laws of the state of Texas.

(b) The headings of the Sections, are for convenient reference only, and are not to be construed as part of this Lease.

(c) The language of this Lease shall be construed according to its plain meaning, and not strictly for or against Landlord or Tenant; and the construction of this Lease and of any of its provisions shall be unaffected by any argument or claim that this Lease has been prepared, wholly or in substantial part, by or on behalf of Tenant or Landlord.

(d) Landlord and Tenant each warrant and represent to the other, that each has full right to enter into this Lease and that there are no impediments, contractual or otherwise , to full performance hereunder.

(e) This Lease shall be binding upon the parties hereto and shall inure to the benefit of and be binding upon the heirs, executors, administrators, successors and assigns of Landlord and Tenant.

(f) In the event of any suit, action, or other proceeding at law or in equity, by either party hereto against the other, by reason of any matter arising out of this Lease, the prevailing party shall recover, not only its legal costs, but also reasonable attorneys' fees (to be fixed by the court) for the maintenance or defense of said suit, action or other proceeding, as the case may be.

(g) A waiver by either party of any breach(es) by the other of any one or more of the covenants, agreements, or conditions of this Lease, shall not bar the enforcement of any rights or remedies for any subsequent breach of any of the same or other covenants, agreements, or conditions.

(h) This Lease and the referenced schedules and exhibits set forth the entire agreement between the parties hereto and may not be amended, changed or terminated orally or by any agreement unless such agreement shall be in writing and signed by Tenant and Landlord.

(i) If any provision of this Lease or the application thereof to any persons or circumstances shall to any extent be invalid or unenforceable, the remainder of this Lease or the application of such provision to persons or circumstances other than those to which it is held invalid or unenforceable shall not be affected thereby, and each provision of this Lease shall be valid and enforceable to the fullest extent permitted by Law.

(j) The submission of this Lease for examination does not constitute a reservation of or agreement to lease the Premises; and this Lease shall become effective and binding only upon proper execution and unconditional delivery thereof by Landlord and Tenant.

(k) When the context in which words are used in this Lease indicates that such is the intent, words

Exhibit 10.5

in the singular number shall include the plural and vice versa, and words in the masculine gender shall include the feminine and neuter genders and vice versa. Further, references to "person" or "persons" in this Lease shall mean and include any natural person and any corporation , partnership, joint venture, limited liability company, trust or other entity whatsoever.

(l) All references to "Business Days" contained herein are references to normal working business days, i.e., Monday through Friday of each calendar week, exclusive of federal and national bank holidays.

(m) Time is of the essence in the payment and performance of the obligations of Tenant and Landlord under this Lease.

(n) In the event that the Landlord hereunder consists of more than one (1) person, then all obligations of the Landlord hereunder shall be joint and several obligations of all persons named as Landlord herein. If any such person directly or indirectly transfers its interest in the Premises, whether by conveyance of its interest in the Premises, merger or consolidation or by the transfer of the ownership interest in such Person, such transferee and its successors and assigns shall be bound by this subparagraph (n). All persons named as Landlord herein shall collectively designate a single person (the " Designated P erson") to be the person entitled to give notices, waivers and consents hereunder. Landlord agrees that Tenant may rely on a waiver, consent or notice given by such Designated Person as binding on all other persons named as Landlord herein; provided, that any amendment, change or termination of this Lease which is permitted under Section 43(h) must be signed by all persons named as Landlord. The Designated Person shall be the only person entitled to give notices hereunder by the Landlord, and Tenant may disregard all communications from any other person named as Landlord herein, except as provided in the immediately following sentence. The identity of the Designated Person may be changed from time to time by ten (10) Business Days' advance written notice to the Tenant signed by either the Designated Person or by all persons named as Landlord herein.


44.	RIGHT OF FIRST OFFER.

(a) Subject to Section 44(e) below, Tenant shall have a right of first offer with respect to any proposed sale or transfer of the Premises during the Term as set forth in this Section 4 4. During the Term and provided no Event of Default with respect to the payment of Fixed Rent, Taxes or utility charges payable by Tenant under this Lease exists, if Landlord determines that it intends to consider a sale or transfer of the Premises on an arms-length basis to a party not affiliated with Landlord, Landlord shall provide notice of such intention to Tenant (the "ROFO N otice"). Tenant shall have a period of 15 Business Days following its receipt of the ROFO Notice to deliver to Landlord a notice indicating that Tenant desires to negotiate a purchase of the Premises (the " ROFO R equest").

(b) In the event that Tenant delivers to Landlord a ROFO Request, during the 90-day period following Landlord's receipt of such ROFO Request (the " ROFO Negotiation P eriod"), Landlord and Tenant shall each negotiate in good faith with respect to the sale of the Premises to Tenant on mutually agreeable terms and conditions. Prior to the expiration of the ROFO Negotiation Period, Tenant shall deliver to Landlord a written offer containing the cash purchase price upon which Tenant would be willing to purchase the Premises (the " ROFO O ffer"). In the event the parties are unable to successfully negotiate a sale of the Premises to Tenant prior to the expiration of the ROFO Negotiation Period, Landlord shall thereafter be entitled to sell the Premises to any Qualified Investment Buyer in an all cash transaction only for a cash price not less than that contained in the ROFO Offer. If Tenant fails to deliver to Landlord a ROFO Offer prior to the expiration of the ROFO Negotiation Period , Landlord shall thereafter be entitled to sell the Premises to any Qualified Investment Buyer on whatever terms Landlord may elect. If, upon expiration of the ROFO Negotiation Period, Landlord determines to market the Premises through an auction process, Landlord shall notify Tenant of the time and location of the applicable auction not less than five (5) Business Days prior to the date on which Landlord intends to hold such auction, and Tenant shall be entitled to attend and participate in such auction in the same manner as all other parties attending or participating in such auction.

(c) In the event that (i) Tenant fails to deliver a ROFO Request within the 15-day period following Tenant's receipt of a ROFO Notice, (ii) fails to deliver a ROFO Offer prior to the expiration of the ROFO Negotiation Period, or (iii) Tenant waives in writing its rights to negotiate a purchase of the Premises in accordance with this Section 44, Landlord shall have a period of one (1) year to sell the Premises, and during such period Tenant shall have no further rights of first offer with respect to any such sale of the Premises. If

Exhibit 10.5

Landlord does not sell the Premises during such one (1) year period, Tenant's right of first offer under this Section 4 4, shall again be applicable if Landlord determines thereafter that it intends to consider a sale of the Premises on an arms-length basis to a party not affiliated with Landlord.

(d) If Landlord shall consummate a sale of the Premises pursuant to Section 44(b) or Section 44(c), Tenant's right of first offer under this Section 44 shall again be applicable if the then current Landlord determines that it intends to consider a sale of the Premises on an arms length basis to a party not affiliated with such Landlord.

(e) Notwithstanding anything herein to the contrary, Tenant expressly acknowledges and agrees that in no event shall its rights pursuant to this Section 44 apply in connection with any foreclosure, or comparable transfer of the Premises in connection with Lender's exercise of its remedies under a Mortgage or in connection with a transfer of the Premises from Landlord to its Lender or its designee pursuant to a deed-in-lieu of foreclosure or comparable transfer of the Premises, but any subsequent sale or transfer of the Premises by Landlord's Lender, its designee or the purchaser of the Premises in any foreclosure or comparable transfer shall be subject to Tenant's rights under this Section 4 4.

(f) Following any sale or transfer of the Premises, any subsequent sale or transfer of the Premises shall again be subject to the provisions of this Section 44 to the extent provided in Section 44(d), except otherwise provided in Section 44(e) .

(g) Tenant's acquisition of the Premises pursuant to this Section 44 shall include Landlord's rights under the Access Agreements and its other real property rights appurtenant to Landlord's interest in the Premises.


45.	RIGHT OF FIRST REFUSAL .

(a) Subject to Sections 45(e) and ±1ffi below, Tenant shall have a right of first refusal with respect to any sale of the Premises during the Term as set forth in this Section 4 5. During the Term and provided no Event of Default with respect to the payment of Fixed Rent, Taxes or utility charges payable by Tenant under this Lease exists, if Landlord receives an offer to purchase the Premises on an arms-length basis from any (i) a direct consumer of Landlord's switching and/or transloading services (a "Consumer"), (ii) Person who competes with Landlord's switching and/or transloading services (a " C ompetitor"), or (iii) Person owned, controlled, owning or controlling or is controlled in common with, or a Person who owns, operates, maintains and/or manages a Class 1, 2 or 3 Railroad (as defined by the American Association of Railroads) or any related property and/or activity as their primary business (a " Railroad E nterprise") that is not Affiliated with Landlord that Landlord intends to accept (a " Bona Fide O ffer"), Landlord shall provide notice of the terms and conditions of such Bona Fide Offer to Tenant (the " ROFR N otice"), which notice shall contain the material terms and conditions of such Bona Fide Offer, including any right to perform inspections and any due diligence period which are conditions to closing. Tenant shall have a period of 45 days following its receipt of the ROFR Notice (the " Exercise P eriod") to deliver to Landlord a notice indicating that Tenant desires to purchase the Premises on the terms and conditions set forth in the Bona Fide Offer (the " ROFR E xercise"). As used in this Section 4 5, an " A ffiliate" shall mean, as to Landlord, (i) any person in which Landlord holds more than 50% of the beneficial ownership interests therein or (ii) any person Controlled by, under common Control with or which Controls Landlord.

(b) If Tenant submits a ROFR Exercise, then Tenant and Landlord shall be required to consummate the purchase of the Premises on the terms and conditions set forth in the ROFR Notice by the closing date specified in the Bona Fide Offer (subject to satisfaction of any conditions of closing required as part of the Bona Fide Offer), or if the Bona Fide Offer does not specify a closing date, within thirty (30) days after the expiration of the Exercise Period (the " ROFR Closing P eriod"), provided, however, that the purchase price paid by Tenant shall be equal to one hundred five percent (105%) of the purchase price set forth in the Bona Fide Offer.

(c) In the event that (i) Tenant fails to deliver a ROFR Exercise within the Exercise Period or (ii) Tenant waives in writing its rights to purchase the Premises in accordance with this Section 4 5, Landlord shall have a period of one (1) year to sell Premises pursuant to the Bona Fide Offer. If Landlord does not sell the Premises during such one (1) year period, Tenant's rights of first refusal under this Section 45 shall again be applicable with respect to any future proposed sale under the circumstances described in Section 45(a) .

(d) If Landlord shall consummate a sale of the Premises pursuant to Section 45(c), Tenant's right of first offer under this Section 45 shall again be applicable with respect to any future proposed sale under the circumstances described in Section 45(a) .

Exhibit 10.5

(e) Notwithstanding anything to the contrary contained herein, in the event Tenant timely delivers a ROFR Exercise but breaches its obligation to close (beyond any applicable cure period set forth in any applicable purchase agreement entered into by Landlord and Tenant in connection with such ROFR Exercise, in the event Landlord and Tenant elect to enter into such a purchase agreement, or, if Landlord and Tenant do not enter into any such purchase agreement, if Tenant fails to close during the ROFR Closing Period), unless such failure to close is due to Landlord's failure to perform, Tenant shall have no further rights of first refusal with respect to the Premises, and this Section 45 shall be of no further force and effect.

(f) Notwithstanding anything herein to the contrary, Tenant expressly acknowledges and agrees that in no event shall its rights pursuant to this Section 45 apply in connection with (i) an encumbrance, mortgage or pledge of the Premises, (ii) any foreclosure, or comparable transfer of the Premises in connection with Lender's exercise of its remedies under a Mortgage or in connection with a transfer of the Premises from Landlord to its Lender or its designee pursuant to a deed-in-lieu of foreclosure or comparable transfer of the Premises, but any subsequent sale or transfer of the Premises by Landlord's Lender, its designee or the purchaser of the Premises in any foreclosure or comparable transfer shall be subject to Tenant's rights under this Section 45, or (iii) a transfer to any Affiliate of Landlord.

(g) Following any sale or transfer of the Premises, any subsequent sale or transfer of the Premises shall again be subject to the provisions of this Section 45 to the extent provided in Section 45(d), except as otherwise provided in Section 45(e) and Section 45Cf) .

(h) Tenant's acquisition of the Premises pursuant to this Section 45 shall include Landlord's rights under the Access Agreements and its other real property rights appurtenant to Landlord's interest in the Premises.


46.	SECTION 1031LIKE-KIND EXCHANGE.

If pursuant to Section 44 or Section 45 above Landlord and Tenant shall enter into a binding agreement for the sale of the Premises to Tenant, Tenant may acquire the Premises as part of a tax deferred exchange for the benefit of Tenant pursuant to Section 1031 of the Internal Revenue Code of 1986, as amended (a "1031 Exchange"). In the event Tenant elects to structure the applicable transaction as a 1031 Exchange, Tenant may assign its rights (but not its obligations) to acquire the Premises to a "qualified intermediary" or an "exchange accommodation titleholder" (within the meaning of the United States Treasury Regulations and related authority) and the assignment of the related purchase and sale agreement by Tenant to any such "qualified intermediary" or "exchange accommodation titleholder", and, subject to the limitations set forth herein, Tenant may also assign the related purchase and sale agreement to such "qualified intermediary" in "exchange accommodation titleholder" and Landlord shall reasonably cooperate with Tenant in connection with such 1031 Exchange. In such event, Tenant shall provide Landlord with a notice of such assignment and Landlord agrees to execute an acknowledgement of receipt of such notice. Tenant acknowledges and agrees that Landlord's agreement to reasonably cooperate with a 1031 Exchange is for the benefit of Tenant and shall be at no cost, expense or liability to Landlord and shall not reduce or modify in any respect any of Landlord 's rights (or Tenant's obligations) under this Lease or the related purchase and sale agreement. Landlord's execution of any documents (which documents, in each case, shall be subject to the reasonable approval of Landlord and its legal counsel) as are reasonably necessary in connection with a 1031 Exchange shall be at Tenant's sole expense, and in no event shall Landlord undertake any liability or obligation pursuant to such documents, nor shall any such documents purport to extend or modify any agreed upon closing date. As part of a 1031 Exchange, Landlord shall not be obligated to acquire or convey any property (other than the Premises) in connection with such 1031 Exchange. Tenant shall indemnify, hold harmless and defend Landlord from and against any and all claims, demands, causes of action, liabilities, losses, costs, damages and expenses (including reasonable attorneys' fees and expenses and court costs incurred in defending any such claim or in enforcing this indemnity) that may be incurred by Landlord in connection with any 1031 Exchange. Upon Tenant's failure to effect any 1031 Exchange in accordance with this Section 46 for any reason, then the purchase by Tenant of the Premises shall be consummated in accordance with terms and conditions of the related purchase and sale agreement, and Tenant shall promptly reimburse Landlord from any costs and expenses incurred in connection with such 1031 Exchange. Nothing contained in this Section 46 shall be deemed to release Tenant in any way from any of its obligations or liabilities under this Lease or any related purchase and sale agreement with respect to the Premises, nor shall anything contained in this Section 46 be deemed to impose any liability or obligation on Landlord with respect to any 1031 Exchange.

[SIGNATURE PAGE FOLLOWS]

Exhibit 10.5

IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Lease as of the Date of Lease above written .

LANDLORD:

TRT LEASECO, LLC, a Delaware limited

liability company

By: TEXAS RAIL TERMlNAL LLC, a

Delaware limited liability company, its managing member

By: CMC INDUS1RIES, INC., a Texas

corporation, its managing member

By:

Name: Marcus Goering

Title: President

By:

Name: Hayden Jones

Title: Director

[Signature Page to Facility Lease]

Exhibit 10.5

IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Lease as of the Date of Lease above written.

LANDLORD :

TRT LEASECO , LLC, a Delaware· limited liability company

By: TEXAS RAIL TERMINAL LLC, a

Delaware limited liability company, its managing member

By: CMC INDUSTRIES, INC., a Texas

corporation, its managing member

By:

Name: Marcus Goering

Title: President

By:

Name: Hayden Jones

Title: Director

[Signature Page to Facility Lease]

Exhibit 10.5

TENANT:

BNSF RAILWAY COMPANY

(f/k/a The Burlington Northern and Santa Fe Railway Company), a Delaware corporation

By:

Name: Mark Schulz

Title: VP

[Signature Page to Facility Lease]

Exhibit 10.5

SCHEDULE l(c) ACCESS

AREA AGREEMENTS

1. Declaration of Easements, Covenants , Conditions and Restrictions between CMC Railroad , Inc. and Landlord dated on or about July 15, 2014 and intended to be recorded in the Official Records of Liberty County on or about such date .

2. Easement Agreement Entrance off 493 Roadway between CMC Railroad, Inc. and Landlord dated on or about July 15 , 2014 and intended to be recorded in the Official Records of Liberty County on or about such date.

Exhibit 10.5

SCHEDULE l(h)

SCHEDULE OF FIXED RENT



Period	Annual Fixed Rent		Monthly Fixed Rent
Initial Term
June 1, 2014 - May 31, 2015	$	9,327,360.00	$	777,280.00
June 1, 2015 - May 31, 2016	$	9,537,225.60	$	794,768.80
June 1, 2016 - May 31, 2017	$	9,751,813.18	$	812,651.10
June 1, 2017 - May 31, 2018	$	9,971,228.97	$	830,935.75
June 1, 2018 - May 31, 2019	$	10,195,581.62	$	849,631.80
June 1, 2019 - May 31, 2020	$	10,424,982.21	$	868,748.52
June 1, 2020 - May 31, 2021	$	10,659,544.31	$	888,295.36
June 1, 2021 - May 31, 2022	$	10,899,384.06	$	908,282.00
June 1, 2022 - May 31, 2023	$	11,144,620.20	$	928,718.35
June 1, 2023 - May 31, 2024	$	11,395,374.15	$	949,614.51
June 1, 2024 - May 31, 2025	$	11,651,770.07	$	970,980.84
June 1, 2025 - May 31, 2026	$	11,913,934.90	$	992,827.91
June 1, 2026 - May 31, 2027	$	12,181,998.43	$	1,015,166.54
June 1, 2027 - May 31, 2028	$	12,456,093.40	$	1,038,007.78
June 1, 2028 - May 31, 2029	$	12,736,355.50	$	1,061,362.96
June 1, 2029 - May 31, 2030	$	13,022,923.50	$	1,085,243.62
June 1, 2030 - May 31, 2031	$	13,315,939.28	$	1,109,661.61
June 1, 2031 - May 31, 2032	$	13,615,547.91	$	1,134,628.99
June 1, 2032 - May 31, 2033	$	13,921,897.74	$	1,160,158.14
June 1, 2033 - May 31, 2034	$	14,235,140.44	$	1,186,261.70
Extension Period
June 1, 2034 - May 31, 2035	$	14,555,431.10	$	1,212,952.59
June 1, 2035 - May 31, 2036	$	14,882,928.30	$	1,240,244.02
June 1, 2036 - May 31, 2037	$	15,217,794.18	$	1,268,149.52
June 1, 2037 - May 31, 2038	$	15,560,194.55	$	1,296,682.88
June 1, 2038 - May 31, 2039	$	15,910,298.93	$	1,325,858.24
Second Extension Period
June 1, 2039 - May 31, 2040	$	16,268,280.66	$	1,355,690.05
June 1, 2040 - May 31, 2041	$	16,634,316.97	$	1,386,193.08
June 1, 2041 - May 31, 2042	$	17,008,589.10	$	1,417,382.43
June 1, 2042 - May 31, 2043	$	17,391,282.36	$	1,449,273.53
June 1, 2043 - May 31, 2044	$	17,782,586.21	$	1,481,882.18

Exhibit 10.5

SCHEDULE l(m)

EXISTING PROPERTY AGREEMENTS

Right-of-Way dated December 21 , 1928 , executed by R.E. Armstrong, et us to Dixie Gulf Gas Co., recorded in Volume 151, Page 84 of the Deed Records of Liberty County , Texas. Said Right of Way amended by Instrument dated November 14, 1996 executed by Midon Texas Pipeline Corp., recorded in Volume 1646 , Page 25 of the Official Public Records of Liberty County , Texas. Said Right of Way amended or modified by Delimitation Agreement dated October 6, 1997, executed by Midcon Texas Pipeline Operator , Inc. to Bill Sjolander, recorded in Volume 1690 , Page 779 of the Official Public Records of Liberty County, Texas.


2.	Right-of-Way dated December 10 , 1957 , executed by J.B. Sterling , et ux to Industrial Gas Supply Co . , recorded in Volume 480 , Page 590 of the Deed Records of Liberty County, Texas . Amendment or Right-of-Way dated October 8, 1997, executed by Gulf Coast National Gas Company to Bill Sjolander, recorded in Volume 1690, Page 771 of the O f ficial Public Records of Liberty County , Texas.


3.	Right-of-Way dated October 16, 2013 executed by CMC Railroad , Inc., a Texas corporation to Entergy Texas , Inc ., recorded under County Clerk's File No. 2014007768 of the Official Public Records of Liberty County , Texas.


4.	That certain o f all the oil , gas and other mineral interest , the royalties, bonuses , rentals and all other rights in connection with same are excepted herefrom as the same are set forth in instrument recorded in/under Volume 172 , Page 177 and corrected in Volume 175 , Page 202 of the Deed Records of Liberty County, Texas .


5.	A l/32nd royalty interest in and to all oil , gas and other minerals on , in, under or that may be produced from the subject property is excepted herefrom as the same is set forth in instrument recorded in/under Volume 215 , Page 461 of the Deed Records of Libert y County , Texas.


6.	A 1 / 32nd royalty interest in and to all oil , gas and other minerals on, in, under or that may be produced from the subject property is excepted herefrom as the same is set forth in instrument recorded in/under Volume 215, Page 169 of the Deed Records of Liberty County , Texas.


7.	A 1/32nd royalty interest in and to all oil , gas and other minerals on, in , under or that may be produced from the subject property is excepted herefrom as the same is set forth in instrument recorded in/under Volume 235 , Page 244 of the Deed Records of Liberty County , Texas.


8.	A 1/64th royalty interest in and to all oil , gas and other minerals on , in, under or that may be produced from the subject property is excepted herefrom as the same is set forth in instrument recorded in/under Volume 259, Page 558 of the Deed Records of Liberty County , Texas.


9.	An oil, gas and mineral interest in and to all oil, gas and other minerals on, in, under or that may be produced from the subject property is excepted herefrom as the same is set forth in instrument from Paul Goodrich, et al to W.F. Graves, dated December 31, 1947, recorded in/under Volume 302, Page 84 of the Deed Records of Liberty County, Texas.


10.	A royalty interest in and to all oil, gas and other minerals on, in, under or that may be produced from the subject property is excepted herefrom as the same is set forth in instrument from Isa C. Armstrong to J.W. Trousdale, dated December 9, 1948, recorded in/under Volume 310, Page 367 of the Deed Records of Liberty County, Texas.


11.	A royalty interest in and to all oil, gas and other minerals on, in, under or that may be produced from the subject property is excepted herefrom as the same is set forth in instrument from J.W. Trousdale to A.J. Otto, dated December 31, 1949, recorded in/under Volume 323 , Page 157 of the Deed Records of Liberty County, Texas.


12.	An oil, gas and mineral interest in and to all oil, gas and other minerals on, in , under or that may be produced from the subject property is excepted herefrom as the same is set forth in instrument from A.J. Otto, et ux to J.B. Sterling, dated February 23, 1954, recorded in/under Volume 400, Page 540 of the Deed Records of Liberty County, Texas.

Exhibit 10.5


13.	An oil, gas and mineral interest in and to all oil, gas and other minerals on, in, under or that may be produced from the subject property is excepted herefrom as the same is set forth in instrument from Sun Oil Company et al to J.B. Sterling, dated June 24, 1966, recorded in/under Volume 605, Page 656 of the Deed Records of Liberty County, Texas.


14.	1/2 of all the oil, gas and other minerals, the royalties, bonuses, rentals and all other rights in connection with same are excepted herefrom as the same are set forth in instrument recorded in/under Volume 961, Page 791 of the Deed Records of Liberty County, Texas.


15.	All the oil, gas and other minerals , the royalties, bonuses, rentals and all other rights in connection with same all of which are expressly excepted herefrom and not insured hereunder, as the same are set forth in instrument recorded in/under Volume 975, Page 635 of the Deed Records of Liberty County, Texas.


16.	That certain of all the oil, gas and other mineral interest, the royalties, bonuses, rentals and all other rights in connection with same are excepted herefrom as the same are set forth in instrument recorded in/under Volume 1782, Page 30 of the Deed Records of Liberty County, Texas.


17.	Right-of-Way dated 03/02/2004, executed by Bill Sjolander to Entergy Gulf States, Inc., recorded under County Clerk's File No. 2004003263 of the Official Public Records of Liberty County, Texas.


18.	Affidavit regarding wastewater treatment system dated 09/19/2003 executed by Bill Sjolander to The Public, recorded under Liberty County Clerk's File No . 2003014500 of the Official Public Records of Liberty County, Texas.


19.	Easement Agreement Entrance off 493 Roadway , dated on or about July 15, 2014, by and between CMC Railroad, Inc., a Texas corporation and TRT LeaseCo, LLC, a Delaware

limited liability company, and intended to be recorded in the Official Public Records of Liberty County, Texas on or about such date.


20.	Easement Agreement for South Side Utility Corridor, Roadway and Drainage Ditch, dated on or about July 15, 2014, by and between CMC Railroad, Inc., a Texas corporation and TRT LeaseCo, LLC, a Delaware limited liability company, and intended to be recorded in the Official Public Records of Liberty County, Texas on or about such date.


21.	Easement Agreement for Western Roadway and Drainage Ditch, dated on or about July 15, 2014, by and between CMC Railroad, Inc., a Texas corporation and TRT LeaseCo, LLC, a Delaware limited liability company, and intended to be recorded in the Official Public Records of Liberty County, Texas on or about such date.


22.	Easement Agreement for Roadway adjacent to the West side of UP's Right of Way, dated on or about July 15, 2014, by and between CMC Railroad, Inc., a Texas corporation and TRT LeaseCo, LLC, a Delaware limited liability company, and intended to be recorded in the Official Public Records of Liberty County, Texas on or about such date.


23.	Declaration of Easements, Covenants, Conditions and Restrictions, dated on or about July 15, 2014, by and between CMC Railroad, Inc., a Texas corporation and TRT LeaseCo, LLC, a Delaware limited liability company, and intended to be recorded in the Official Public Records of Liberty County, Texas on or about such date.


24.	Easement Agreement Entrance off 493 Roadway, dated on or about July 15, 2014, by and between CMC Railroad, Inc., a Texas corporation and TRT LeaseCo, LLC, a Delaware limited liability company, and intended to be recorded in the Official Public Records of Liberty County, Texas on or about such date.

Exhibit 10.5

SCHEDULE 7(h) SECTION 467 ALLOCATIONS



Period	Annual Fixed Rent		Monthly Fixed Rent		Section 467 Allocation Rent
Initial Term
June 1, 2014 - May 31, 2015	$	9,327,360.00	$	777,280.00	$	11,617,935.77
June 1, 2015 - May 31, 2016	$	9,537,225.60	$	794,768.80	$	11,617,935.77
June 1, 2016 - May 31, 2017	$	9,751,813.18	$	812,651.10	$	11,617,935.77
June 1, 2017 - May 31, 2018	$	9,971,228.97	$	830,935.75	$	11,617,935.77
June 1, 2018 - May 31, 2019	$	10,195,581.62	$	849,631.80	$	11,617,935.77
June 1, 2019 - May 31, 2020	$	10,424,982.21	$	868,748.52	$	11,617,935.77
June 1, 2020 - May 31, 2021	$	10,659,544.31	$	888,295.36	$	11,617,935.77
June 1, 2021 - May 31, 2022	$	10,899,384.06	$	908,282.00	$	11,617,935.77
June 1, 2022 - May 31, 2023	$	11,144,620.20	$	928,718.35	$	11,617,935.77
June 1, 2023 - May 31, 2024	$	11,395,374.15	$	949,614.51	$	11,617,935.77
June 1, 2024 - May 31, 2025	$	11,651,770.07	$	970,980.84	$	11,617,935.77
June 1, 2025 - May 31, 2026	$	11,913,934.90	$	992,827.91	$	11,617,935.77
June 1, 2026 - May 31, 2027	$	12,181,998.43	$	1,015,166.54	$	11,617,935.77
June 1, 2027 - May 31, 2028	$	12,456,093.40	$	1,038,007.78	$	11,617,935.77
June 1, 2028 - May 31, 2029	$	12,736,355.50	$	1,061,362.96	$	11,617,935.77
June 1, 2029 - May 31, 2030	$	13,022,923.50	$	1,085,243.62	$	11,617,935.77
June 1, 2030 - May 31, 2031	$	13,315,939.28	$	1,109,661.61	$	11,617,935.77
June 1, 2031 - May 31, 2032	$	13,615,547.91	$	1,134,628.99	$	11,617,935.77
June 1, 2032 - May 31, 2033	$	13,921,897.74	$	1,160,158.14	$	11,617,935.77
June 1, 2033 - May 31, 2034	$	14,235,140.44	$	1,186,261.70	$	11,617,935.77
Total	$	232,358,715.47			$	232,358,715.47

Exhibit 10.5

STATE OF TEXAS)

COUNTY OF LIBERTY) LEASE EXHIBIT A-1)

FIELD NOTES of a 187.1838 acre tract ofland situated in the T. C. Railroad Company Survey No. 39, Abstract 474, the Elizabeth Munson League, Abstract 88 and the G. C. & S. F. Railroad Company Survey No. 21, Abstract 459, all in Liberty County, Texas. Said 187.1838 acres being comprised of the following tracts:

1) part of that certain 9.43 acres (Tract XV), conveyed by Bill Sjolander to CMC Railroad, Inc. by Deed dated January I 0, 2008 and recorded under County Clerk's File No. 2008000452 of the Official Public Records of Liberty County, Texas;

7) all of that certain 41.113 acres conveyed by Bill Sjolander to CMC Railroad IIl-C, Inc. by Deed dated October 3, 2002 and recorded under County Clerk's File No. 2002052310 of the Official Public Records of Liberty County, Texas;

10) all of that certain 29.8786 acres conveyed by Bill Sjolander to CMC Railroad III-D, Inc. by Deed dated February 22, 2006 and recorded under County Clerk's File No.

2006008609 of the Official Public Records of Liberty County, Texas;

Exhibit 10.5

23) part of Lots 4, 8, 9, 10 and 11 of the Brown & Sterling Subdivision as recorded in Volume 37 at Page 2 of the Deed Records of Liberty County, Texas;

This 187.1838 acres is more particularly described by the following metes and bounds, to-wit:

ACCOMPANYING THIS METES AND BOUNDS DESCRIPTION.

COMMENCING at a 3/4 inch iron pipe found in the West right-of-way line of the Southern Pacific Railroad/Union Pacific Railroad 100 foot wide right-of-way described in Volume 69 at Page 410 of the Deed Records of Liberty County, Texas, for the Northeast comer of said 9.43 acres. Said COMMENCING POINT has a State Plane Coordinate Value of Y=l 0,015,250.46 and X=4,015,864.67.

THENCE: South 10°24'11" West along the East line of said 9.43 acres and the West line of said Railroad for a distance

Exhibit 10.5

of 714.00 feet to a point for the Northeast corner and POINT OF BEGINNING of this tract. Said BEGINNING POINT has a State Plane Coordinate Value of Y=l0,014,548.10 and X=4,015,735.73.

THENCE: Continue South 10°24'1l " West along the East line of this tract, the East line of said 9.43 acres, the East line of said 0.6428 of an acre, the East line of said 8.179 acres, the East line of said 0.6605 of an acre, the East line of said 387.716 acres and the West line of said Railroad, for a distance of 11,975.24 feet to a point for the Southeast corner of this tract.

THENCE: North 45°39'48" West along the South line of this tract for a distance of 370.80 feet to an angle point in said line.

THENCE: North 64°25'10" West along the South line of this tract for a distance of 121.23 feet to a point for the BEGINNING POINT of a curve to the right, concave Northeasterly.

THENCE: North 11°16'48" West along the South line ofthis tract for a distance of 94.88 feet to a point for the BEGINNING POINT of a curve to the left, concave Southwesterly.

THENCE: North 50°28'52" West along the South line of this tract for a distance of 53.59 feet to an angle point in said line.

THENCE: North 79°09'07" West along the South line of this tract for a distance of

118.53 feet to a point for the BEGINNING POINT of a curve to the right, concave Northerly.

THENCE: North 46°35'03" West along the South line of this tract for a distance of 73.25 feet to a point for the BEGINNING POINT of a curve to the right, concave Northeasterly.

THENCE: Along and around said curve to the right, in a Northwesterly direction, along the South line of this tract, said curve having a radius of 1265.11 feet, a central angle of 08°49'2411 and a chord bearing and distance of North 39°45'41 II West 194.63 feet, for an arc length of 194.82 feet to the TERMINATION POINT of said curve.

THENCE: North 31°13'25" West along the South line of this tract for a distance of 77.48 feet to a point for the BEGINNING POINT of a curve to the right, concave Northeasterly.

THENCE: Along and around said curve to the right, in a Northwesterly direction, along the South line of this tract, said curve having a radius of 532.17 feet, a central angle of 05°54'1411 and a chord bearing and distance of North 34°31'4511 West 54.81 feet, for an arc length of 54.84 feet to the TERMINATION POINT of said curve.

THENCE: North 36°58'09" West along the South line of this tract for a distance of 95.38 feet to a point for the Southwest corner of this tract.

THENCE: North 10°06'29" East along the Southernmost West line of this tract for a distance of 2061.47 feet to an angle point in said line.

Exhibit 10.5

THENCE: North 23°37'17" East along the Southernmost West line of this tract for a distance of 3542.57 feet to the BEGINNING POINT of a curve to the left, concave Westerly.

THENCE: North 23°56'17" West along the Southernmost West line of this tract for a distance of 88.32 feet to the BEGINNING POINT of a curve to the right, concave Easterly.

THENCE: North 25°23'29" East along the Southernmost West line of this tract for a distance of 87.15 feet to an angle point in said line.

THENCE: North 25°43'49" East along the Southernmost West line of this tract for a distance of 184.75 feet to an angle point in said line.

THENCE: North 32°12'03" East along the Southernmost West line of this tract for a distance of 237 .19 feet to an angle point in said line.

THENCE: North 28°23'03" East along the Southernmost West line of this tract for a distance of 456.93 feet to a point for an interior corner of this tract.

THENCE: North 61°36'57" West along an exterior line of this tract for a distance of

28.12 feet to a point for an exterior comer of this tract.

THENCE: North 28°23'03" East along an exterior West line of this tract for a distance of

45.21 feet to a point for an exterior comer of this tract.

THENCE: South 61°36'57" East along an exterior line of this tract for a distance of

28.12 feet to a point for an interior comer of this tract.

THENCE: North 28°23'03" East along an exterior West line of this tract for a distance of

117.71 feet to an angle point in said line.

THENCE: North 31°11'20" East along an exterior West line of this tract for a distance of

527.80 feet to a point for an exterior corner of this tract.

THENCE: South 58°48'40" East along an exterior line of this tract for a distance of

61.15 feet to a point for an interior corner of this tract.

THENCE: North 23°17'21" East along the Northernmost West line of this tract for a distance of 107.19 feet to the BEGINNING POINT of a curve to the left, concave Westerly.

THENCE: North 17°28'06" East along the Northernmost West line of this tract for a distance of 77.62 feet to the BEGINNING POINT of a curve to the left, concave Westerly.

THENCE: Along and around said curve to the left, in a Northerly direction, along the Northernmost West line of this

Exhibit 10.5

tract, said curve having a radius of 2741.00 feet, a central angle of 08°04'51" and a chord bearing and distance of North 13°41'11" East 386.26 feet, for an arc length of 386.58 feet to the TERMINATION POINT of said curve.

THENCE: North 10°23'02" East along the Northernmost West line of this tract for a distance of 2979.42 feet to a point for the Northwest comer of this tract.

SURVEYOR'S CERTIFICATE

I, Juliene Ramsey, Registered Professional Land Surveyor No. 4379, do hereby certify that the foregoing field notes were prepared from an actual survey made on the ground, under my supervision, in March, April, May, June and July of 2014 and that all lines, boundaries and landmarks are accurately described therein. All property comers referred to as "points" hereinabove are marked with set 1/2 inch iron rods, with cap (BHA), terrain permitting, or set 1/2 inch by 12 inch galvanized spikes, with cap (BHA).

WITNESS my hand and seal at Baytown, Texas, this the 9th day of July, A. D., 2014.

Juliene Ramsey

Registered Professional Land Surveyor No. 4379

14-4337.LEASE EXHIBIT A-1.fdn.doc

Hutchison & Associates, Inc. 1209 Decker Drive, Suite 100

Baytown, TX 77520

Engineering Firm #F-267

Surveying Firm #100293-00

STATE OF TEXAS)

COUNTY OF LIBERTY)

LEASE EXHIBIT A-2)

ACCOMPANYING THIS METES AND BOUNDS DESCRIPTION.

Exhibit 10.5

CMC Railroad, Inc. by Deed dated January 10, 2008 and recorded under County Clerk's File No. 2008000452 of the Official Public Records of Liberty County, Texas. Said BEGINNING POINT has a State Plane Coordinate Value of Y=l0,011,205.18 and X=4,015,020.32.

THENCE: South 54°55'20" West along the East line of this tract for a distance of 453.17 feet to a point for the Southeast comer of this tract.

THENCE: South 87°44'49" West along the South line of this tract for a distance of 375.15 feet to a point for an angle point in said line.

THENCE: South 47°42'39" West along the South line of this tract for a distance of 9.99 feet to a point for an angle point in said line.

THENCE: South 28°12'44" West along the South line of this tract for a distance of 15.31 feet to a point for an angle point in said line.

THENCE: South 11°48'16" West along the South line of this tract for a distance of 14.95 feet to a point for the Southwest comer of this tract.

THENCE: North 02°37'47" West along the West line of this tract for a distance of 274.66 feet to a p.k. nail set in the North line of said 261.0209 acres, the North line of said T. C. Railroad Company Survey No. 39, the South line of said Munson League, the South line of said Lot 8 and the South line of Rolke Road (County Road 4931 - dedicated 50 feet wide public right-of-way) for the Northwest comer of this tract.

THENCE: North 87°22'13" East along the North line of this tract, the North line of said 261.0209 acres , the North line of said T. C . Railroad Company Survey No. 39 , the South line of said Munson League, the South line of said Rolke Road and the South line of said Lot 8 for a distance of 776.83 feet to the PLACE OF BEGINNING and containing within these boundaries 3.2622 acres or 142,102.94 square feet ofland.

SURVEYOR'S CERTIFICATE

I, Juliene Ramsey, Registered Professional Land Surveyor No. 4379, do hereby certify that the foregoing field notes were prepared from an actual survey made on the ground, under my supervision , in March, April, May, June and July of 2014 and that all lines, boundaries and landmarks are accurately described therein. All property comers referred to as "points" hereinabove are marked with set 112 inch iron rods , with cap (BHA), terrain permitting, or set 1/2 inch by 12 inch galvanized spikes, with cap (BHA).

WI1NESS my hand and seal at Baytown, Texas, this the 9th day of July, A. D., 2014.

Juliene Ramsey

Registered Professional Land Surveyor No . 4379

14-4337.ENTRANCE EASEMENT EXHIBIT B.fdn . doc

Hutchison & Associates, Inc.

1209 Decker Drive, Suite 100

Baytown, TX 77520

Engineering Firm #F-267

Surveying Firm #100293-00

STATE OF TEXAS)

Exhibit 10.5

COUNTY OF LIBERTY)

LEASE EXHIBIT A-3)

COMMENCING at a 6 inch metal post found in the South line of Lot 8 of Brown & Sterling Subdivision (map ofrecord in Volume 37 at Page 2 of the Deed Records of Liberty County, Texas) in the South line of the Elizabeth Munson League, Abstract 88, Liberty County, Texas, the North line of said T. C. Railroad Company Survey No. 39 and the North line of said 261.0209 acres for the Southwest corner of that certain 9.43 acres (Tract XV) conveyed by Bill Sjolander to CMC Railroad, Inc. by Deed dated January 10, 2008 and recorded under County Clerk's File No. 2008000452 of the Official Public Records of Liberty County, Texas. Said COMMENCING POINT has a State Plane Coordinate Value of Y=l 0,011,205.18 and X=4,0l 5,020.32.

THENCE: South 87°22'13" West along the South line of said Lot 8, the South line of said Munson League, the South line of Rolke Road (County Road 493--dedicated 50 feet wide public right-of-way), the North line of said T. C. Railroad Survey No. 39 and the North line of said 261.0209 acres for a distance of 815.11 feet to a point for the Northeast comer and POINT OF BEGINNING of this tract. Said BEGINNING POINT has a State Plane Coordinate Value of Y=to,011,166.85 and X=4,014,206.05.

THENCE: South 02°28'58" East along the East line of this tract for a distance of 157.87 feet to a point for the Southeast comer of this tract.

THENCE: South 87°22' 13" West along the South line of this tract for a distance of

362.66 feet to a point for the Southwest comer of this tract.

THENCE: North 02°37'47" West along the West line of this tract for a distance of

157.87 feet to a point in the North line of said 261.0209 acres, the North line of said Survey No. 39, the South line of said Munson League and the South line of Lot 21 of said Brown & Sterling Subdivision for the Northwest corner of this tract.

THENCE: North 87°22'13" East along the North line of this tract, the South line of RoIke Road, the South line of said Lot 21, the South line of said Munson League, the North line of said 261.0209 acres and the North line of said Survey No. 39 for a distance of 363.06 feet the PLACE OF BEGINNING and containing within these boundaries 1.3151 acres or 57,284.22 square feet of land.

SURVEYOR'S CERTIFICATE

I, Juliene Ramsey, Registered Professional Land Surveyor No. 4379, do hereby certify that the foregoing field notes were prepared from an actual survey made on the ground, under my supervision, in March, April, May, June and July of 2014 and that all lines, boundaries and landmarks are accurately described therein. All property comers referred to as "points" hereinabove are marked with set 112 inch iron rods, with cap (BHA), terrain permitting, or set 112 inch by 12 inch galvanized spikes, with cap (BHA).

WITNESS my hand and seal at Baytown, Texas, this the 9th day of July, A. D., 2014 .

Juliene Ramsey

Registered Professional Land Surveyor No . 4379

14-4337.ENTRANCE EASEMENT EXHIBIT B.fdn . doc

Exhibit 10.5

Hutchison & Associates, Inc.

1209 Decker Drive, Suite 100

Baytown, TX 77520

Engineering Firm #F-267

Surveying Firm #100293-00

STATE OF TEXAS) COUNTY OF LIBERTY)

DECLARATION EXHIBIT A, B & C)

FIELD NOTES of a 12.5911 acre tract ofland situated in the Elizabeth Munson League, Abstract 88, Liberty County, Texas and the T. C. Railroad Company Survey No. 39, Abstract 474, Liberty County, Texas. Said 12.5911 acres being out of and a part of that certain 9.43 acres (Tract XV) and out of and a part of that certain 261.0209 acres (Tract XI) conveyed by Bill Sjolander to CMC Railroad, Inc. by Deed dated January 10, 2008 and recorded under County Clerk's File No. 2008000452 of the Official Public Records of Liberty County, Texas. Said tract also being out of and a part of Lots 3, 4, 8, 9, 10 and 11 of the Brown & Sterling Subdivision as recorded in Volume 37 at Page 2 of the Deed Records of Liberty County, Texas. This 12.5911 acre tract is more particularly described by the following metes and bounds, to-wit:

BEGINNING at a 6 inch metal post found in the South line of said Lot 8, in the South line of said Munson League, the North line of said T. C. Railroad Company Survey No. 39 and the North line of said 261.0209 acres. Said point being an interior corner and POINT OF BEGINNING of this tract and the Southwest comer of said 9.43 acres and has a State Plane Coordinate Value of Y=l0,011,205.18 and X=4,01 5,020.32.

THENCE: North 10°24'11" East along the West line of this tract and the West line of said 9.43 acres for a distance of 4107.36 feet to a point for the Northernmost Northwest comer of this tract and the Northwest corner of said 9.43 acres.

THENCE: North 87°20'15" East along the Northernmost North line of this tract and the North line of said 9.43 acres for a distance of 45.49 feet to a point for the Northernmost Northeast comer of this tract.

THENCE: South 10°22'01" West along the Northernmost East line of thls tract for a distance of 1047.50 feet to a point for an angle point in said line.

THENCE: South 10°22'1 l " West along the Northernmost East line of this tract for a distance of 977.48 feet to a point for an angle point in said line.

THENCE: South 10°23'15" West along the Northernmost East line of this tract for a distance ofl Ol0.23 feet to a point for an angle point in said line.

THENCE: South 10°23'22" West along the Northernmost East line of this tract for a distance of 645.21 feet to a point for the BEGINNING POINT of a curve to the right, concave Westerly.

THENCE: Along and around said curve to the right, in a Southerly direction, along the Northernmost East line ofthis

Exhibit 10.5

tract , said curve having a radius of 2939.42 feet , a central angle of 07°30'3 l " and a chord bearing and distance of South 13°39'38" West 384.94 feet, for an arc length of 385.21 feet to a point for the TERMINATION POINT of said curve.

THENCE: South 21°28'44" West along the Northernmost East line of this tract for a distance of 50.51 feet to a point in the South line of said 9.43 acres, the South line of said Lot 8 of Brown & Sterling Subdivision, the South line of said Munson League and the North line of said Survey No. 39 for an interior corner of this tract.

THENCE: North 87°22'13" East along the South line of said 9.43 acres, the South line of said Lot 8 of Brown & Sterling Subdivision, the South line of said Munson League and the North line of said Survey No. 39 for a distance of 19.89 feet to a point for an exterior corner of this tract.

THENCE : South 17°28'06" West along the middle East line of this tract for a distance of

33.60 feet to a point for the BEGINNING POINT of a curve to the right, concave Westerly.

THENCE: Along and around said curve to the right, in a Southerly direction, along the middle East line of this tract, said curve having a radius of 1136.50 feet, a central angle of 04°05'28" and a chord bearing and distance of South 20°42'40" West 81.13 feet, for an

arc length of 81.15 feet to the TERMINATION POINT of said curve.

THENCE : South 23°17'21" West along the middle East line of this tract for a distance of

107.19 feet to a point for an exterior corner of this tract.

THENCE: North 58°48'40" West along an interior line of this tract for a distance of

61.15 feet to a point for an interior corner of this tract.

THENCE : South 31°11'20" West along an East line of this tract for a distance of 149.59 feet a point in said line.

THENCE: Continue South 31°11'20" West along an East line of this tract for a distance of 378.21 feet to an angle point in said line.

THENCE: South 28°23'03" West along the Northernmost East line of this tract for a distance of 117.71 feet to a point for an exterior corner of this tract.

THENCE: North 61°36'57" West along an interior line of this tract for a distance of

28.12 feet to a point for an interior corner of this tract.

THENCE: South 28°23'03" West along an interior line ofthis tract for a distance of

45.21 feet to a point for an interior comer of this tract.

THENCE: South 61°36'57" East along an interior line of this tract for a distance of 28.12 feet to a point for an exterior comer of this tract.

THENCE: South 28°23'03" West along the Southernmost East line of this tract for a distance of 456.93 feet to an angle point in said line.

THENCE: South 32°12'06" West along the Southernmost East line of this tract for a distance of 27.23 feet to an angle point in said line.

THENCE: South 32°12'03" West along the Southernmost East line of this tract for a distance of 209.96 feet to a point for the Southernmost comer of this tract. Said point being the BEGINNING POINT of a curve to the left, concave Westerly.

Exhibit 10.5

THENCE: North 02°56'33" West along the Southernmost West line of this tract for a distance of 835.03 feet to a point for the Westernmost Northwest comer of this tract.

THENCE: North 87°54'16" East along the Westernmost North line of this tract for a distance of 28.03 feet to an angle point in said line.

THENCE: North 88°42'47" East along the Westernmost North line of this tract for a distance of 4.32 feet to a point for an interior comer of this tract.

THENCE: North 11°48'16" East along the Northenunost West line of this tract for a distance of 14.95 feet to an angle point in said line.

THENCE: North 28°12'44" East along the Northernmost West line of this tract for a distance of 15.31 feet to an angle point in said line.

THENCE: North 47°42'39" East along the Northernmost West line of this tract for a distance of 9.99 feet to a point for an exterior Northwest comer of this tract.

THENCE: North 87°44'49" East along an exterior North line of this tract for a distance of 375.15 feet to an angle point in said line.

THENCE: North 54°55'20" East along an exterior North line of this tract for a distance of 453.17 feet to the PLACE OF BEGINNING and containing within these boundaries 12.5911 acres or 548,469.63 square feet ofland.

SURVEYOR'S CERTIFICATE

I, Juliene Ramsey, Registered Professional Land Surveyor No. 4379, do hereby certify that the foregoing field notes were prepared from an actual survey made on the ground, under my supervision, in March, April, May, June and July of 2014 and that all lines, boundaries and landmarks are accurately described therein. All property corners referred to as "points" hereinabove are marked with set 1/2 inch iron rods, with cap (BHA), terrain permitting, or set 112 inch by 12 inch galvanized spikes, with cap (BHA).

WITNESS my hand and seal at Baytown, Texas, this the 9th day of July, A. D., 2014.

Juliene Ramsey

Registered Professional Land Surveyor No. 4379

14-4337.DECLARATION EXHIBIT ABC.rev.fdn.doc

Hutchison & Associates, Inc. 1209 Decker Drive, Suite 100

Baytown, TX 77520 Engineering Firm #F-267 Surveying Firm # 100293-00

STATE OF TEXAS)

COUNTY OF LIBERTY)

ENTRANCE EASEMENT EXHIBIT B )

Exhibit 10.5

by Bill Sjolander to CMC Railroad, Inc. by Deed dated January 10, 2008 and recorded under County Clerk's File No. 2008000452 of the Official Public Records of Liberty County, Texas . This 0 . 2434 of an acre is more particularly described by the following metes and bounds, to-wit:

NOTE: BEARINGS ARE LAMBERT GRID BEARINGS AND ALL COORDINATES REFER TO THE TEXAS STATE PLANE COORDINATE SYSTEM, CENTRAL ZONE, NAD 83. ALL DISTANCES ARE ACTUAL DISTANCES . SCALE FACTOR = 1.000142861. REFERENCE IS MADE TO THE PLATS OF EVEN DATE ACCOMPANYING THIS METES AND BOUNDS DESCRIPTION.

COMMENCING at a 6 inch metal post found in the South line of Lot 8 of Brown & Sterling Subdivision (map of record in Volume 37 at Page 2 of the Deed Records of Liberty County, Texas) in the South line of the Elizabeth Munson League, Abstract 88, Liberty County, Texas, the North line of said T. C. Railroad Company Survey No. 39 and the North line of said 261.0209 acres for the Southwest comer of that certain 9.43 acres (Tract XV) conveyed by Bill Sjolander to CMC Railroad, Inc. by Deed dated January 10, 2008 and recorded under County Clerk's File No. 2008000452 of the Official Public Records of Liberty County, Texas. Said COMMENCING POINT has a State Plane Coordinate Value of Y= l 0,011,205.18 and X=4,015,020.32.

THENCE: South 87 ° 22'13 " West along the South line of said Lot 8, the South line of said Munson League, the South line of Rolke Road (County Road 493--dedicated 50 feet wide public right-of-way) , the North line of said T. C. Railroad Survey No. 39 and the North line of said 261.0209 acres for a distance of 776.82 feet to a p.k. nail set for the Northeast corner and POINT OF BEGINNING of this tract. Said BEGINNING POINT has a State Plane Coordinate Value of Y=l 0,011 , 169.63 and X=4 , 014,244.22.

THENCE: South 02°37'47" East along the East line of this tract for a distance of 274.66 feet to a point for the Southeast comer of this tract.

THENCE: South 88°42'47" West along the South line of this tract for a distance of 4.32 feet to a point for an angle point in said line.

THENCE: South 87°54'16" West along the South line of this tract for a distance of 28 . 03 feet to a point for an angle point in said line.

THENCE: South 84°16'17" West along the South line of this tract for a distance of 6 . 65 feet to a point for the Southwest corner of this tract.

THENCE: North 02°28'58" West along the West line of this tract for a distance of 274.66 feet to a point in the North line of said 261.0209 acres, the North line of said Survey No. 39, the South line of said Munson League and the South line of Lot 21 of said Brown & Sterling Subdivision for the Northwest corner ofthis tract. Said point being the Southwest corner of said Rolke Road.

THENCE: North 87°22'13" East along the North line of this tract, the South line of said Rolke Road, the South line of said Lot 21 and Lot 8, the South line of said Munson League, the North line of said 261.0209 acres and the North line of said Survey No. 39 for a distance of 38 . 28 feet the PLACE OF BEGINNING and containing within these boundaries 0.2434 of an acre or 10,603.44 square feet ofland.

SURVEYOR'S CERTIFICATE

I, Juliene Ramsey, Registered Professional Land Surveyor No. 4379, do hereby certify that the foregoing field notes were prepared from an actual survey made on the ground, under my supervision, in March, April, May, June and July of 2014 and that all lines, boundaries and landmarks are accurately described therein. All property comers referred to as "points" hereinabove are marked with set 1/2 inch iron rods, with cap (BHA), terrain permitting, or set 112 inch by 12 inch galvanized spikes, with cap (BHA).

WITNESS my hand and seal at Baytown, Texas, this the 9th day of July, A. D., 2014.

Exhibit 10.5

Juliene Ramsey

Registered Professional Land Surveyor No . 4379

14-4337.ENTRANCE EASEMENT EXHIBIT B.fdn . doc

Hutchison & Associates, Inc.

1209 Decker Drive, Suite 100

Baytown, TX 77520

Engineering Firm #F-267

Surveying Firm #100293-00

EXHIBIT C

FORM OF SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT

RETURN TO:

[ l

SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT

THIS SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT (hereinafter referred to as "Agreement") made this _ day of , 2014, among [ ], a [ ], having an address at [ ] and its successors and/or permitted assigns (hereinafter referred to as "LENDER"), BNSF RAILWAY COMPANY (F/K/A THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY, a [Delaware] corporation, having an address at [ ] (hereinafter referred to as "Tenant"), and TRT LEASECO, LLC, a Delaware limited liability company, having an address at 8811 FM 1960 Bypass, Suite 310, Humble, TX 77338 (hereinafter referred to as "Landlord").

RECITALS:

A. Tenant is the tenant and lessee under that certain Lease, dated , 2014, between Tenant and Landlord (as the same may now or hereafter be amended, restated, replaced or otherwise modified, collectively, the "Lease") relating to the premises described in the Lease (hereinafter referred to as the "Premises"), located at the real property more particularly described on Exhibits A-1, A-2 and A-3 attached hereto (hereinafter referred to as the "Property").

B. Lender has made or will make a loan to Landlord (hereinafter referred to as the "Loan"), which such Loan is (i) secured by a deed of trust, mortgage or security deed (as the same may be amended, restated, extended, or otherwise modified from time to time, the "Deed of Trust" and an assignment of leases and rents (as the same may be amended, restated, extended, or otherwise modified from time to time, the "Assignment of Leases", in each case, from Landlord to Lender covering the Premises and (ii) evidenced by certain other documents and instruments by and among Lender and Landlord, among others (the same, together with the Deed of Trust and Assignment of Leases, collectively, the "Loan Documents").

C. Tenant has agreed that the Lease shall be subject and subordinate to the Loan and Loan Documents, provided that Landlord shall continue to remain liable for its obligations under the Lease to the extent provided therein and Tenant is assured of continued occupancy of the Premises under the terms of the Lease subject to and in accordance with the terms hereof.

NOW, THEREFORE, for and in consideration of the mutual covenants herein contained, the sum of Ten Dollars ($10.00) and other good and valuable considerations, the receipt and sufficiency of which are hereby acknowledged, and notwithstanding anything in the Lease to the contrary, it is hereby agreed as follows:

1. Subordination and Consent. Lender, Tenant and Landlord do hereby covenant and agree that the Lease with

Exhibit 10.5

all rights, options, liens and charges created thereby (including, without limitation, any option or rights contained in the Lease, or otherwise existing, to acquire any or all of the Premises or any superior leasehold interest therein), is and shall continue to be subject and subordinate in all respects to the lien and terms of the Loan Documents, and to any renewals, modifications, consolidations, replacements and extensions thereof and to all advancements made thereunder. Tenant acknowledges that Landlord will execute and deliver to Lender an assignment of the Lease as security for the Loan, and Tenant hereby expressly consents to such assignment, subject to the terms hereof. Tenant and Landlord agree that if there is a default by Landlord in the performance and observance of any of the terms of such Loan, Lender may, at its option, demand all Fixed Rent (as such term is defined in the Lease) due under the Lease be paid by Tenant directly to Lender at the address specified below, or as otherwise specified by Lender in lieu of paying Fixed Rent to Landlord. Tenant and Landlord agree that upon Lender's written request for payment of Fixed Rent directly to Lender, Tenant will timely remit any and all Fixed Rent due under the Lease directly to, and payable to the order of, Lender. Such payments to Lender will constitute performance of Tenants payment obligations under the Lease.

2. Non-Disturbance. Lender does hereby agree with Tenant that, in the event Lender succeeds to Landlord's interest in the Premises by foreclosure, conveyance in lieu of foreclosure or otherwise, so long as Tenant is not in default under the Lease beyond any applicable cure period, (a) the Lease shall continue in full force and effect as a direct Lease between Lender and Tenant, upon and subject to all of the terms, covenants and conditions of the Lease (including, without limitations, Tenant's rights of first offer and rights of first refusal set forth in Sections 44 and 45 of the Lease), for the balance of the term of the Lease, and Lender shall not disturb the possession of Tenant, and (b) the Premises shall be subject to the Lease and Lender shall recognize Tenant as the tenant of the Premises for the remainder of the term of the Lease in accordance with the provisions thereof; provided, however, that Lender shall not be:

i. subject to any claims, offsets or defenses which Tenant might have against any prior landlord (including Landlord) unless Lender has received notice of the same and the condition or circumstance giving rise to any such claim, offset or defense under the Lease continues following the date on which Lender succeeds to the rights of Landlord in which event, Tenant shall have such rights, if any, against Lender only for the period of time subsequent to the date upon which Lender succeeds to the rights of Landlord;

ii. liable for any act or omission of any prior landlord (including Landlord) unless Lender has received notice of the same and such act or omission under the Lease continues following the date on which Lender succeeds to the rights of Landlord in which event, Tenant shall have such rights, if any, against Lender only for the period of time subsequent to the date upon which Lender succeeds to the rights of Landlord;

iii. liable to cure any default by any prior landlord (including Landlord) unless Lender has received notice of the same and such default under the Lease continues following the date on which Lender succeeds to the rights of Landlord, in which event, Tenant shall have such rights, if any, against Lender only for the period of time subsequent to the date upon which Lender succeeds to the rights of Landlord;

iv. bound by any rent or additional rent which Tenant might have paid more than one month in advance or any security deposit or other prepaid charge paid to any prior landlord (including Landlord) unless transferred to Lender;

v. bound by any amendment or modification of the Lease made without its written consent; or

vi. liable for any deposit that Tenant may have given to any previous landlord (including Landlord) which has not, as such, been transferred to Lender.

Nothing contained herein shall (a) prevent Lender from naming Tenant in any foreclosure or other action or proceeding initiated by Lender pursuant to the Loan Documents, but only to the extent necessary under applicable law in order for Lender to avail itself of and complete the foreclosure or other remedy, or (b) constitute a release by Tenant of any claims Tenant may have against any prior Landlord, subject, however, to the limitation on Landlord's liability contained in the Lease.

3. A ttornment. Tenant does hereby agree with Lender that, in the event Lender becomes the owner of the Property by foreclosure, conveyance in lieu of foreclosure or otherwise, then (a) Tenant shall attom to and recognize Lender as the landlord under the Lease for the remainder of the term thereof, and Tenant shall perform and observe its obligations thereunder, subject only to the terms and conditions of the Lease, and (b) subject to Section 2 and Section 7 hereof, Lender shall thereafter be responsible for the performance of the obligations of the Landlord under the Lease arising from and after the date it becomes owner of the Property. If required by applicable law, Tenant further covenants and agrees to execute and deliver upon request of Lender an appropriate agreement of attomment to Lender and any subsequent titleholder of the Premises provided the terms

Exhibit 10.5

and conditions of the Lease shall in no way be modified.

4. Lease D efaults. In the event Landlord shall fail to perform or observe any of the terms, conditions or agreements in the Lease, Tenant shall give written notice thereof to Lender and Lender shall have the right (but not the obligation) to cure such default. Tenant shall not take any action to terminate, rescind or avoid the Lease or to withhold any rent or other monetary obligations thereunder, for a period of thirty (30) days following receipt of such written notice by Lender; provided, however, that in the case of any default which cannot with diligence be cured within said thirty (30) day period, if Lender shall proceed promptly to cure such default and thereafter prosecute the curing of such default with diligence and continuity (including without limitation commencing foreclosure proceedings if necessary to effect the cure), the time within which such default may be cured shall be extended for such period as may be reasonably necessary, not to exceed an additional one-hundred fifty (150) days (or as may be commercially reasonable if possession of the Premises is required to effectuate such cure and Lender is diligently prosecuting foreclosure proceedings), to complete the curing of such default with diligence and continuity.

5. Purchase R ights. Tenant confirms to Lender that it shall have no rights under Sections 44 or 45 of the Lease in the event (i) Lender forecloses pursuant to the Deed of Trust, (ii) Lender exercises any power of sale granted to it with respect to the Premises or (iii) Lender accepts a deed in lieu of foreclosure with respect to the Premises; provided, that Tenant shall have all rights under Sections 44 and 45 of the Lease with respect to any subsequent sale by Lender or any of Lender's successor and assigns.

6. Obligations and Liability of L ender. Lender shall have no obligations nor incur any liability with respect to any warranties of any nature whatsoever, whether pursuant to the Lease or otherwise, including, without limitation, any warranties respecting use, compliance with zoning, hazardous wastes or environmental laws, Landlord's title, Landlord's authority, habitability, fitness for purpose or possession. Furthermore, in the event that Lender shall acquire Landlord's interest in the Premises, Lender shall have no obligation, nor incur any liability, other than as provided in Section 34 of the Lease. Lender shall not, either by virtue of the Loan Documents or this Agreement, be or become a mortgagee in possession or be or become subject to any liability or obligation under the Lease or otherwise until Lender shall have acquired the Landlord's interest in the Premises and then such liability or obligation of Lender under the Lease shall extend only to those liabilities or obligations continuing on, or arising on or after, the date the Lender has acquired the Landlord's interest in the Premises. Without limiting the generality of the foregoing, neither the Loan Documents nor this Agreement shall, prior to Lender's acquisition of Landlord's interest in the Premises, operate to place responsibility for the control, care, management or repair of the Premises upon Lender or impose upon Lender responsibility for the carrying out of any of the terms or conditions of the Lease, and Lender shall not be responsible or liable for any waste committed on either the Premises or the Premises by any party whatsoever, for any dangerous or defective condition of the Premises or for any negligence in the management, upkeep, repair or control of the Premises.

7. S everability. If any portion or portions of this Agreement shall be held invalid or inoperative, then all of the remaining portions shall remain in full force and effect, and, so far as is reasonable and possible, effect shall be given to the intent manifested by the portion or portions held to be invalid or inoperative.

8. Governing L aw. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS.

9. N otices. So long as the Deed of Trust remains outstanding and unsatisfied, Tenant will mail or deliver to Lender, at the address herein below provided, a copy of all notices permitted or required to be given to the Landlord by Tenant under and pursuant to the terms and provisions of the Lease. All notices or other communications required or permitted to be given pursuant to the provisions hereof shall be subject to and delivered in accordance with Section 27 of the Lease. For purposes of notice, the addresses of the parties shall be:

Lender:

[ ]

with a copy to:

[ ]

Exhibit 10.5

Landlord:

[ ]

with a copy to:

[ ]

Tenant:

[ ]

with a copy to:

[ ]

Notwithstanding the foregoing, any party shall have the right to change its address for notice hereunder to any other location within the continental United States by the giving of thirty (30) days' notice to the other parties in the manner set forth herein.

10. Successors and A ssigns. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, legal representatives, successors, successors-in-title and assigns. Without limitation of any provision contained herein, as used herein, the term (i) "landlord" refers to Landlord and to any successor to the interest of Landlord under the Lease and ("Lender" refers to Lender and to any assignee of the note secured by the Deed of Trust, Lender's servicer of the Loan, if any and any purchaser or other successor to Lender's interests hereunder.

11. Tenant's Personal P roperty. In no event shall the Deed of Trust cover or encumber (and shall not be construed as subjecting in any manner to the lien thereof) any of Tenant's personal property or personal property of third parties (other than Landlord) in the care, custody or control of Tenant.

12. C ounterparts. This Agreement may be executed in one or more counterparts, each of which when so executed shall be deemed to be an original, but all of which when taken together shall constitute one and the same instrument

13. H eadings. The headings, captions, and arrangements used in this Agreement are for convenience only and shall not affect the interpretation of this Agreement.

[SIGNATURE PAGES FOLLOW]

IN WITNESS WHEREOF, the parties hereto have executed this Agreement under seal as of the date first above written.

LENDER:

[ ]

By:

Name:

Title:

Exhibit 10.5

STATE OF )

COUNTY OF )

This instrument was acknowledged before me on the day of , by


________, of [	], a [ ] corporation on behalf of said corporation.

[SEAL]

Notary Public - State of _

My Commission Expires:

Printed Name of Notary Public

IN WITNESS WHEREOF, the parties hereto have executed this Agreement under seal as of the date first above written.

TENANT:

BNSF RAILWAY COMPANY

By:

Name:

Title:

STATE OF )

COUNTY OF )

This instrument was acknowledged before me on the day of , by


	, of BNSF Railway Company, a [Delaware] corporation, on behalf of said corporation.

[SEAL]

Notary Public - State of _

My Commission Expires:

Exhibit 10.5

Printed Name of Notary Public

IN WITNESS WHEREOF , the parties hereto have executed this Agreement under seal as of the date first above written.

LANDLORD:

TRT LEASECO, LLC

By:

Name:

Title:

STATE OF )

COUNTY OF )

This instrument was acknowledged before me on the day of , by


	, of TRT LEASECO, LLC, a [ ] on behalf of said company .

[SEAL]

Notary Public - State of _

My Commission Expires:

Printed Name of Notary Public

EXHIBIT D-1

FORM OF TENANT ESTOPPEL

_, 20 _

[ l

Attention: [ ]

Exhibit 10.5


Re:	Lease of the Premises defined in that certain Lease between TRT Leaseco , LLC ("Landlord") and BNSF Railway Company (f/k/a The Burlington Northern and Santa Fe Railway Company ("Tenant") , dated as of [ ] , 2014 (the "Lease")

Ladies and Gentlemen :

Subject to any exceptions set forth on Exhibit A hereto, Tenant hereby certifies as follows:

1. Tenant is the tenant under the Lease. The Lease is in full force and effect, and unmodified except as to the following


2.	The Lease has not been canceled or terminated.

The current monthly Fixed Rent under the Lease is $ . Tenant's last date of payment of Fixed Rent, Additional Rent , and other sums due under the Lease ("Rent") was , and such payment applies through the month of , and , except for such payment, Tenant has paid no Rent in advance. (The terms "Fixed Rent" and "Additional Rent" are as used or defined in the Lease.) . Tenant has not posted a security deposit with Landlord.


4.	Tenant has accepted possession of the Premises described in the Lease and is occupying such Premises.


5.	The term of the Lease commenced on [ ], 2014, and expires on February 28, 2034. Tenant has two (2) options to extend the term of the Lease for a period of five (5) years each. Tenant has no right to terminate the Lease prior to its stated expiration other than as specifically set forth in the Lease.


6.	To the best of Tenant ' s knowledge, Landlord is not in breach or default under any of its obligations set forth in the Lease, and Tenant is aware of no facts which, with the passage of time, the giving of notice, or both, would constitute a breach or default by Landlord under the Lease.

Tenant is not in default under any of its obligations set forth in the Lease and to the best of Tenant's knowledge, there is no fact which, with the passage of time, the giving of notice, or both, would constitute a Tenant default under the Lease. Tenant has not given Landlord notice of its intention to vacate the Premises prior to the end of the term of the Lease. Tenant's interest under the Lease has not been assigned, by operation of law or otherwise, and no sublease, concession agreement or license covering the Premises or any portion thereof has been entered into by Tenant.

To the best of Tenant's knowledge, Tenant has no claims or defenses against Landlord with respect to the Lease or the Premises and Tenant has no offsets, defenses or claims against rental or any other amount payable under the Lease. There are no tenant improvements costs, allowances or similar amounts that the Landlord is obligated to pay under the Lease, and the Lease is not subject to any rental concessions or leasing brokerage commissions.


9.	No bankruptcy proceeding, whether voluntary or otherwise, is pending or, to the best of Tenant's knowledge, threatened against Tenant.


10.	To the best of Tenant's knowledge, its use, maintenance and operation of the Premises complies with, all applicable federal, state, county or local statutes, laws, rules and regulations of any governmental authorities, including those relating to environmental, health or safety matters.

The undersigned has executed this Estoppel Certificate for the benefit of, and with the knowledge and understanding that, Landlord, [ ] and [its/their] respective affiliates, successors, and assigns may rely on this Estoppel Certificate. Each person signing this Estoppel Certificate is duly authorized to bind Tenant.

Dated this day of , 20 .

TENANT:

Exhibit 10.5

By:. ------------------

Name:

Title:

Exhibit A to Tenant Estoppel Certificate

[Specify any exceptions to certifications or, if there are no exceptions, specify none]

EXHIBIT D-2

FORM OF LANDLORD ESTOPPEL

, 20 _

[ l

Attention: [ ]


Re:	Lease of the Premises defined in that certain Lease between TRT Leaseco, LLC ("Landlord") and BNSF Railway Company (f/k/a The Burlington Northern and Santa Fe Railway Company ("Tenant"), dated as of [ ] , 2014 (the "Lease")

Ladies and Gentlemen:

Subject to any exceptions specified on Exhibit A hereto, Landlord hereby certifies as follows:


1.	The Lease is in full force and effect, and unmodified except as to the following:


2.	The Lease has not been canceled or terminated.

The current monthly Fixed Rent under the Lease is $ . Tenant's last date of payment of Fixed Rent, Additional Rent, and other sums due under the Lease ("Rent") was , and such payment applies through the month of , and, except for such payment, Tenant has paid no Rent in advance. (The terms "Fixed Rent" and "Additional Rent" are as used or defined in the Lease.). Tenant has not posted a security deposit with Landlord.


4.	The term of the Lease commenced on [ ], 2014, and expires on February 28, 2034. Tenant has two (2) options to extend the term of the Lease for a period of five (5) years each.


5.	To the best of Landlord's knowledge, Tenant is not in breach or default under any of its obligations set forth in the Lease, and Landlord is aware of no facts which, with the passage of time, the giving of notice, or both, would constitute a breach or default by Tenant under the Lease.


6.	Landlord is not in default under any of its obligations set forth in the Lease and to the best of Landlord's knowledge, there is no fact which, with the passage of time, the giving of notice, or both, would constitute a Landlord default under the Lease.


7.	Landlord has received no written no claims or defenses from Tenant against Landlord with respect to the Lease or the Premises and, to Landlord's knowledge, Tenant has no offsets, defenses or claims against rental or any other amount payable under the Lease. There are no tenant improvements costs, allowances or similar

Exhibit 10.5

amounts that the Landlord is obligated to pay under the Lease, and the Lease is not subject to any rental concessions or leasing brokerage commissions.


8.	No bankruptcy proceeding , whether voluntary or otherwise, is pending or, to the best of Landlord's knowledge , threatened against Landlord.

The undersigned has executed this Estoppel Certificate for the benefit of, and with the knowledge and understanding that, Tenant, [ ] and [its/their] respective affiliates, successors , and assigns may rely on this Estoppel Certificate. Each person signing this Estoppel Certificate is duly authorized to bind Landlord.

Dated this _ _ day of , 20_ .

LANDLORD :

By: _

Name: Title:

Exhibit A to Landlo rd Estoppel Certificate

[Specify any exception s to certifications, or if th e r e are no exceptions , spe cify none]

EXHIBIT E

FORM OF MEMORANDUM OF LEASE

MEMORANDUM OF LEASE

This Memorandum of Lease is made as of this day of , 2014, by and between TRT LEASECO, LLC, a Delaware limited liability compan y, hereinafter called " Landlord ," and BNSF RAILWAY COMPANY (FIK/A THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY) , a Delaware corporation, hereinafter called "Tenant".

Landlord and Tenant entered into a Lease (the "Lease"), dated June 1, 2014, whereby Landlord leases to Tenant, and Tenant leases from Landlord, for a term of approximately twenty (20) years, commencing on June 1, 2014 and continuing to and including May 31, 2034 ("Term"), the real property more particularly described on Exhibits A-1, A-2 and A-3 attached hereto and hereinafter referred to as the "Leased Premises." Other terms used herein but not defined shall have the meanings set forth in the Lease.

The Lease, among other things, contains the following provisions:

1. Right of First Offer

A. Subject to Section 44(d) of the Lease, Tenant shall have a right of first offer with respect to the sale of the Leased Premises as set forth in Section 44 of the Lease, subject to certain conditions, limitations and exceptions set forth therein.

B. Provisions governing the process for exercising this right of first offer, limitations and restrictions on said exercise and the other terms, covenants and conditions of said exercise are set forth at length in Section 44 of the Lease.

Exhibit 10.5


2.	Right of First Refusal

A. Tenant shall have a right of first refusal with respect to the sale of the Leased Premises to a Consumer (as defined in the Lease), a Competitor (as defined in the Lease) or a Railroad Enterprise (as defined in the Lease) as set forth in Section 45 of the Lease, subject to certain conditions, limitations and exceptions set forth therein.

B. Provisions governing the process for exercising this right of first refusal, limitations and restrictions on said exercise and the other terms, covenants and conditions of said exercise are set forth at length in Section 45 of the Lease.

3. Extension O ptions. Subject to the conditions, limitations and exceptions set forth in the Lease, Tenant shall have the option to extend the Term for up to two (2) consecutive periods of five (5) years each.

4. Assignment and S uccessors. This instrument shall also bind and benefit, as the case may require, the heirs, legal representatives, assigns and successors of the respective parties. This instrument shall not become binding upon the parties until it shall have been executed and delivered by both Landlord and Tenant.

5. Recording; No Modification of L ease. This Memorandum of Lease is made and executed by the parties hereto for the purpose of recording the same in the office of the public records of Liberty County, Texas, and is subject in each and every respect, to the rents and other terms, covenants and conditions of the Lease and this Memorandum of Lease is executed and delivered with the understanding and agreement that the same shall not in any manner or form whatsoever, alter, modify or vary the rents and other terms, covenants and conditions of the Lease. Inthe event of any conflict between the terms of this Memorandum of Lease and the Lease, the Lease shall control.

[Remainder of Page Intentionally Blank]

IN WITNESS WHEREOF, Landlord and Tenant have executed this Memorandum of Lease , under seal, as of the day and year first above written.

LANDLORD:

TRT LEASECO, LLC, a Delaware limited liability company

By:--------------

Title: TENANT:

BNSF RAILWAY COMPANY

(f/k/a The Burlington Northern and Santa Fe Railway Company), a Delaware corporation

By: _ Name:

Title:

By: _ Name:

Title:

Exhibit 10.5

STATE OF )

) SS

COUNTY OF )

I hereby certify that on this day before me, an officer duly authorized in the state aforesaid and in the county aforesaid to take acknowledgments , personally appeared ____ , to me known to be the person described in and who executed the foregoing instrument as [ ] of BNSF Railway Company (f/k/a The Burlington Northern and Santa Fe Railway Company), a Delaware corporation, and acknowledged before me that (s)he executed the same as such [ ] in the name of and on behalf of said corporation. Witness my hand and official seal in the county and state last aforesaid this day of ,2014 .

Notary Public

M y commission expires:

[PRINT NAME]

STATE OF )

) SS

COUNTY OF )

I hereby certify that on this day before me, an officer duly authorized in the state aforesaid and in the county aforesaid to take acknowledgments, personally appeared _________, to me known to be the person described in and who executed the foregoing instrument as of TRT Leaseco, LLC, a Delaware limited liability company, and acknowledged before me that (s)he executed the same as such _ in the name of and on behalf of said limited liability company. Witness my hand and official seal in the county and state last aforesaid this day of , 2014.

Notary Public

My commission expires:

[PRINT NAME]

EXHIBIT 31.1

CERTIFICATION PURSUANT TO SECTION 302

Certification of Chief Executive Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002

I, Larry G. Swets, Jr., certify that:

1. I have reviewed this report on Form 10-Q of Kingsway Financial Services Inc.;

2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

4. The registrant's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

c) Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

d) Disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter (the registrant's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and

5. The registrant's other certifying officers and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of the registrant's board of directors (or persons performing the equivalent functions):

a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and

b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting.

Date: August 4, 2016

By /s/ Larry G. Swets, Jr.

Larry G. Swets, Jr., President and Chief Executive Officer

(Principal Executive Officer)

EXHIBIT 31.2

CERTIFICATION

Certification of Chief Financial Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002

I, William A. Hickey, Jr., certify that:

1. I have reviewed this Form 10-Q of Kingsway Financial Services Inc.;

(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

(c) Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

(d) Disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter (the registrant's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and

5. The registrant's other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of the registrant's board of directors (or persons performing the equivalent functions):

(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and

(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting.

Date: August 4, 2016

By /s/ William A. Hickey, Jr.

William A. Hickey, Jr., Chief Financial Officer and Executive Vice President

(Principal Financial Officer)

EXHIBIT 32.1

CERTIFICATION PURSUANT TO

18 U.S.C. SECTION 1350,

AS ADOPTED PURSUANT TO

SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002

In connection with the Quarterly Report on Form 10-Q of Kingsway Financial Services Inc. (the “Company”) for the period ended June 30, 2016 as filed with the Securities and Exchange Commission on the date hereof (the “Report”), the undersigned Larry G. Swets, Jr., the Chief Executive Officer of the Company, hereby certifies, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that, to the best of the undersigned's knowledge and belief:

(1) the Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and

(2) the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.

Date: August 4, 2016

By /s/ Larry G. Swets, Jr.

Larry G. Swets, Jr., President and Chief Executive Officer

(Principal Executive Officer)

EXHIBIT 32.2

CERTIFICATION PURSUANT TO

18 U.S.C. SECTION 1350,

AS ADOPTED PURSUANT TO

SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002

In connection with the Quarterly Report on Form 10-Q of Kingsway Financial Services Inc. (the “Company”) for the period ended June 30, 2016 as filed with the Securities and Exchange Commission on the date hereof (the “Report”), the undersigned William A. Hickey, Jr., the Chief Financial Officer of the Company, hereby certifies, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that, to the best of the undersigned's knowledge and belief:

(1) the Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and

(2) the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.

Date: August 4, 2016

By /s/ William A. Hickey, Jr.

William A. Hickey, Jr., Chief Financial Officer and Executive Vice President

(Principal Financial Officer)