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Exhibit 10.51
THIS IS TO CERTIFY THAT THIS A TRUE
AND CORRECT COPY OF ORIGINAL
HERITAGE TITLE COMPANY
OF AUSTIN
WHEN RECORDED RETURN TO: BY /s/ [ILLEGIBLE]
--------------------------------
THOMPSON & KNIGHT L.L.P.
1700 PACIFIC AVENUE, SUITE 3300
DALLAS, TEXAS 75201
ATTENTION: JEANNE M. BURTON
NOTICE OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR
STRIKE ANY OF THE FOLLOWING INFORMATION FROM THIS INSTRUMENT BEFORE IT IS FILED
FOR RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S
LICENSE NUMBER.
DEED OF TRUST, SECURITY AGREEMENT
AND ASSIGNMENT OF RENTS
LOAN NO. 753821
A. THIS DEED OF TRUST (as the same may from time to time hereafter be
modified, supplemented or amended, this "DEED OF TRUST") is made as of February
4, 2004, by INLAND WESTERN SAN ANTONIO LIMITED PARTNERSHIP, an Illinois limited
partnership, having a principal place of business and post office address at
2901 Butterfield Road, Oak Brook, Illinois 60523, "BORROWER" ("Borrower" to be
construed as "Borrowers" if the context so requires), to S. P. Franzenburg, of
801 Grand Avenue, Des Moines, Iowa 50392-1360, ("TRUSTEE"), as Trustee for the
benefit of PRINCIPAL LIFE INSURANCE COMPANY, an Iowa corporation, having a
principal place of business and post office address c/o Principal Real Estate
Investors, LLC, at 801 Grand Avenue, Des Moines, Iowa 50392-1450, "LENDER".
W I T N E S S E T H:
B. Borrower is justly indebted to Lender for money borrowed (the
"LOAN") in the original principal sum of Thirty Two Million Five Hundred Twenty
Eight Thousand and 00/100 Dollars ($32,528,000.00) (the "LOAN AMOUNT") evidenced
by Borrower's secured promissory note of even date herewith, made payable and
delivered to Lender, (as may be modified, amended, supplemented, extended or
consolidated in writing and any note(s) issued in exchange therefor or
replacement thereof) (the "NOTE") in which Note Borrower promises to pay to
Lender the Loan Amount, together with all accrued and unpaid interest thereon,
interest accrued at the Default Rate (if any), Late Charges (if any), the Make
Whole Premium (if any), all loans and future advances made by Lender to
Borrower, and all other obligations and liabilities due or to become due to
Lender pursuant to the Loan Documents and all other amounts, sums and expenses
paid by or payable to Lender pursuant to the Loan Documents and the
Environmental Indemnity (collectively the "INDEBTEDNESS") until the Indebtedness
has been paid, but in any event, the unpaid balance (if any) remaining due on
the Note shall be due and payable on March 1, 2010, or such earlier date
resulting from the acceleration of the Indebtedness by Lender (the "MATURITY
DATE"). Capitalized terms used herein and not otherwise defined shall have those
meanings given to them in the other Loan Documents.
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C. NOW, THEREFORE, to secure the payment of the Indebtedness in
accordance with the terms and conditions of the Loan Documents, and all
extensions, modifications, and renewals thereof and the performance of the
covenants and agreements contained therein, and also to secure the payment of
any and all other Indebtedness, direct or contingent, that may now or hereafter
become owing from Borrower to Lender in connection with the Loan Documents, and
in consideration of the Loan Amount in hand paid, receipt of which is hereby
acknowledged, Borrower does by these presents grant, bargain, sell, assign and
convey unto Trustee, its successors and assigns forever, in trust with power of
sale that certain real estate located in the County of Bexar, State of Texas
more particularly described in EXHIBIT A attached hereto and made a part hereof
(the "LAND"), which Land, together with the following described property, rights
and interests, is collectively referred to herein as the "PREMISES".
D. Together with Borrower's interest as lessor in and to all Leases
and all Rents, which are pledged primarily and on a parity with the Land and not
secondarily.
E. Together with all and singular the tenements, hereditaments,
easements, appurtenances, passages, waters, water courses, riparian rights,
sewer rights, rights in trade names, licenses (to the extent assignable),
permits (to the extent assignable), and contracts and all other rights,
liberties and privileges of any kind or character in any way now or hereafter
appertaining to the Land, including but not limited to, homestead and any other
claim at law or in equity as well as any after-acquired title, franchise or
license and the reversion and reversions and remainder and remainders thereof.
F. Together with the right in the case of foreclosure hereunder of
the encumbered property for Lender to take and use the name by which the
buildings and all other improvements situated on the Premises are commonly known
and the right to manage and operate the said buildings under any such name and
variants thereof.
G. Together with any and all buildings and improvements of every kind
and description now or hereafter erected or placed on the said Land and all of
Borrower's right, title and interest in all materials intended for construction,
reconstruction, alteration and repairs of such buildings and improvements now or
hereafter erected thereon, all of which materials shall be deemed to be included
within the Premises immediately upon the delivery thereof to the Premises, and
all fixtures now or hereafter owned by Borrower and attached to or contained in
and used in connection with the Premises including, but not limited to, all
machinery, motors, elevators, fittings, radiators, awnings, shades, screens, and
all plumbing, heating, lighting, ventilating, refrigerating, incinerating,
air-conditioning and sprinkler equipment and fixtures and appurtenances thereto;
and all items of furniture, furnishings, equipment and personal property owned
by Borrower used or useful in the operation of the Premises; and all renewals or
replacements of all of the aforesaid property owned by Borrower or articles in
substitution therefor, whether or not the same are or shall be attached to said
buildings or improvements in any manner (collectively, the "IMPROVEMENTS"); it
being mutually agreed, intended and declared that all the aforesaid property
owned by Borrower and placed by it on the Land or used in connection with the
operation or maintenance of the Premises shall, so far as permitted by law, be
deemed to form a part and parcel of the Land and for the purpose of this Deed of
Trust to be Land and covered by this Deed of Trust, and as to any of the
property aforesaid which does not form a part and parcel of the Land or does not
constitute a "fixture" (as such term is defined in the Uniform Commercial Code)
this Deed of Trust is hereby deemed to be, as well, a security
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agreement under the Uniform Commercial Code for the purpose of creating hereby a
security interest in such property which Borrower hereby grants to Lender as
secured party. Borrower authorizes Lender at any time until the Indebtedness is
paid in full, to prepare and file any and all Uniform Commercial Code financing
statements, amendments, assignments, terminations and the like, necessary to
create and/or maintain a prior security interest in such property all without
Borrower's execution of the same.
H. Together with all right, title and interest of Borrower, now or
hereafter acquired, in and to any and all strips and gores of land adjacent to
and used in connection with the Premises and all right, title and interest of
Borrower, now owned or hereafter acquired, in, to, over and under the ways,
streets, sidewalks and alleys adjoining the Premises.
I. Together with all funds now or hereafter held by Lender under any
escrow security agreement or under any of the terms hereof, including but not
limited to funds held under the provisions of paragraph 5 hereof, insurance
proceeds from all insurance policies required to be maintained by Borrower under
the Loan Documents (subject to the balance of the terms contained in this Deed
of Trust) and, subject to the provisions of paragraph 7 below, all awards,
decrees, proceeds, settlements or claims for damage now or hereafter made to or
for the benefit of Borrower by reason of any damage to destruction of or taking
of the Premises or any part thereof, whether the same shall be made by reason of
the exercise of the right of eminent domain or by condemnation or otherwise (a
"TAKING").
J. TO HAVE AND TO HOLD the same unto Trustee, Trustee's successors
and substitutes, upon the trusts, covenants and agreements herein expressed.
K. Borrower represents that has good and indefeasible fee simple
title to the portion of the Premises described as Tract 1 in Exhibit A, which
Premises are free and clear of any liens or encumbrances except as set out in
Exhibit B attached hereto, and except for taxes which are not yet due or
delinquent. Borrower shall forever warrant and defend the title to the Premises
against all claims and demands of all persons whomsoever and will on demand
execute any additional instrument which may be required to give Trustee a valid
first lien on all of the Premises, subject to the "PERMITTED ENCUMBRANCES" set
forth in Exhibit B.
L. Borrower further represents that (i) the Premises is not subject
to any casualty damage; (ii) except as otherwise disclosed to Lender with
respect to the Existing Condemnation Action (as defined in Paragraph 7),
Borrower has not received any written notice of any eminent domain or
condemnation proceeding affecting the Premises; and (iii) to the best of
Borrower's knowledge following due and diligent inquiry, there are no actions,
suits or proceedings pending, completed or threatened against or affecting
Borrower or any person or entity owning an interest (directly or indirectly) in
Borrower ("INTEREST OWNER(S)") or any property of Borrower or any Interest Owner
in any court or before any arbitrator of any kind or before or by any
governmental authority (whether local, state, federal or foreign) that,
individually or in the aggregate, could reasonably be expected by Lender to be
material to the transaction contemplated hereby.
M. Borrower further represents and warrants that as of the date
hereof and until the Indebtedness is paid in full: (i) Borrower is not and will
not be an "employee benefit plan" as defined in Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended
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("ERISA"), which is subject to Title I of ERISA; (ii) the assets of Borrower do
not and will not constitute "plan assets" of one or more such plans for purposes
of Title I of ERISA; (iii) Borrower is not and will not be a "governmental plan"
within the meaning of Section 3(32) of ERISA; (iv) transactions by or with
Borrower are not and will not be subject to state statutes applicable to
Borrower regulating investments of and fiduciary obligations with respect to
governmental plans; (v) Borrower has made and will continue to make all required
contributions to all employee benefit plans, if any, established for or on
behalf of Borrower or to which Borrower is required to contribute; (vi) Borrower
has and will continue to administer each such plan, if any, in accordance with
its terms and the applicable provisions of ERISA and any other federal or state
law; and (vii) Borrower has not and will not permit any liability under Sections
4201, 4243, 4062 or 4069 of Title IV of ERISA or taxes or penalties relating to
any employee benefit plan or multi-employer plan to become delinquent or
assessed, respectively, which would have a material adverse effect upon (i) the
business or the financial position or results of operation of Borrower, (ii) the
ability of Borrower to perform, or of Lender to enforce, any of the Loan
Documents or Environmental Indemnity or (iii) the value of the Premises.
BORROWER COVENANTS AND AGREES AS FOLLOWS:
1. Borrower shall:
(a) pay each item of Indebtedness secured by this Deed of Trust
when due according to the terms of the Loan Documents;
(b) pay a Late Charge on any payment of principal, interest,
Make Whole Premium or Indebtedness which is not paid on or
before the due date thereof to cover the expense involved
in handling such late payment according to the terms of the
Loan Documents;
(c) pay on or before the due date thereof any indebtedness
permitted to be incurred by Borrower pursuant to the Loan
Documents and any other claims which could become a lien on
the Premises (unless otherwise specifically addressed in
paragraph 1(e) hereof), and upon request of Lender exhibit
satisfactory evidence of the discharge thereof;
(d) complete within a reasonable time, the construction of any
Improvements now or at any time in process of construction
upon the Land which are required to be performed by
Borrower;
(e) manage, operate and maintain the Premises and keep the
Premises, including but not limited to, the Improvements,
in good condition and repair and free from mechanics' liens
or other liens or claims for liens, provided however, that
Borrower may in good faith, with reasonable diligence and
upon written Notice to Lender within twenty (20) days after
Borrower has knowledge of such lien or claim, contest the
validity or amount of any such lien or claim and defer
payment and discharge thereof during the pendency of such
contest in the manner provided by law,
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provided that (i) such contest may be made without the
payment thereof; (ii) such contest shall prevent the sale
or forfeiture of the Premises or any part thereof, or any
interest therein, to satisfy such lien or claim; (iii)
Borrower shall have obtained a bond over such lien or claim
from a bonding company acceptable to Lender which has the
effect of removing such lien or collection of the claim or
lien so contested; and (iv) Borrower shall pay all costs
and expenses incidental to such contest; and further
provided, that in the event of a final, non-appealable
ruling or adjudication adverse to Borrower and provided the
court of jurisdiction has not granted a stay of the
enforcement of the ruling or judgment, Borrower shall
promptly pay such claim or lien, shall indemnify and hold
Lender and the Premises harmless from any loss for damage
arising from such contest and shall take whatever action
necessary to prevent sale, forfeiture or any other loss or
damage to the Premises or to the Lender;
(f) comply, and cause each lessee or other user of the Premises
to comply, with all requirements of law and ordinance, and
all rules and regulations, now or hereafter enacted, by
authorities having jurisdiction of the Premises and the use
thereof, including but not limited to all covenants,
conditions and restrictions of record pertaining to the
Premises, the Improvements, and the use thereof
(collectively, "LEGAL REQUIREMENTS");
(g) subject to the provisions of paragraph 6 hereof, promptly
repair, restore or rebuild any Improvements now or
hereafter a part of the Premises which may become damaged
or be destroyed by any cause whatsoever, so that upon
completion of the repair, restoration and rebuilding of
such Improvements, there will be no liens of any nature
arising out of the construction and the Premises will be of
substantially the same character and quality as it was
prior to the damage or destruction;
(h) if other than a natural person, do all things necessary to
preserve and keep in full force and effect its existence,
franchises, rights and privileges under the laws of the
state of its formation and, if other than its state of
formation, the state where the Premises is located.
Borrower shall notify Lender at least thirty (30) days
prior to (i) any relocation of Borrower's principal place
of business to a different state or any change in
Borrower's state of formation, and/or (ii) if Borrower is
an individual, any relocation of Borrower's principal
residence to a different state;
(i) do all things necessary to preserve and keep in full force
and effect Lender's title insurance coverage insuring the
lien of this Deed of Trust as a first and prior lien,
subject only to the Permitted Encumbrances stated in
Exhibit B and any other exceptions after the date of this
Deed of Trust approved in writing by Lender, including
without limitation, delivering to Lender not less than 30
days prior to the effective date of any rate adjustment,
modification or extension of the Note or any other Loan
Document, any new policy or endorsement which may be
reasonably required to assure Lender of such continuing
coverage;
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(j) execute any and all documents which may be required to
perfect the security interest granted by this Deed of
Trust;
(k) remain a Single Purpose Entity (hereinafter defined); and
(l) comply with the terms and conditions more particularly
described in Paragraph 49 hereof relating to the replatting
of the Land and the release of the PT Outparcel
(hereinafter defined) on or before the date which is 120
days from the date hereof.
2. Borrower shall not:
(a) except as required by applicable Legal Requirements,
construct any building or structure nor make any alteration
or addition (other than normal repair and maintenance) to
(i) the roof or any structural component of any
Improvements on the Premises, or (ii) the building
operating systems, including but not limited to, the
mechanical, electrical, heating, cooling, or ventilation
systems (other than replacement with equal or better
quality and capacity), without the prior written consent of
Lender not to be unreasonably withheld;
(b) remove or demolish any material Improvements, or any
portion thereof, which at any time constitutes a part of
the Premises. Notwithstanding anything hereinabove to the
contrary, Borrower may construct, remove or demolish tenant
improvements within the then existing buildings(s) or other
structures to the extent such work is required solely under
the terms of any Leases approved by Lender provided (i) no
Event of Default exists under the Loan Documents; (ii) the
work is completed on a timely basis, in a good,
workmanlike, lien free manner and in accordance with all
Legal Requirements, and (iii) such work does not negatively
affect the structural integrity of the Improvements or the
value of the Premises;
(c) cause or permit any change to be made in the general use of
the Premises without Lender's prior written consent;
(d) initiate any or acquiesce to a zoning reclassification or
material change in zoning without Lender's prior written
consent. Borrower shall use all reasonable efforts to
contest any such zoning reclassification or change;
(e) make or permit any use of the Premises that could with the
passage of time result in the creation of any right of use,
or any claim of adverse possession or easement on, to or
against any part of the Premises in favor of any person or
entity or the public;
(f) allow any of the following to occur (unless a Permitted
Transfer):
(i) a Transfer of all or any portion of the Premises or
any interest in the Premises;
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(ii) a Transfer of any ownership interest in Borrower or
any entity which owns, directly or indirectly, an
interest in Borrower at any level of the ownership
structure; or
(iii) in addition to (i) and (ii) above, if the Borrower
is a trust, or if a trust owns an interest, directly
or indirectly, in any entity which owns an interest
in Borrower at any level of the ownership structure,
the addition, deletion or substitution of a trustee
of such trust.
If any of such events occur, it shall be null and void and
shall constitute an Event of Default under the Loan
Documents.
It is understood and agreed that the Indebtedness evidenced
by the Note is personal to Borrower and in accepting the
same Lender has relied upon what it perceived as the
willingness and ability of Borrower to perform its
obligations under the Loan Documents and the Environmental
Indemnity and as lessor under the Leases of the Premises.
Furthermore, Lender may consent to a Transfer and expressly
waive Borrower's covenants contained in this paragraph
2(f), in writing to Borrower; however any such consent and
waiver shall not constitute any consent or waiver of such
covenants as to any Transfer other than that for which the
consent and waiver was expressly granted. Furthermore,
Lender's willingness to consent to any Transfer and waive
Borrower's covenants contained in this paragraph 2(f),
implies no standard of reasonableness in determining
whether or not such consent shall be granted and the same
may be based upon what Lender solely deems to be in its
best interest.
For purposes of the Loan Documents, the following terms
shall have the respective meanings set forth below:
"TRANSFER" or "TRANSFERRED" shall mean with respect to the
Premises, an interest in the Premises, or an ownership
interest or interest therein:
(i) a sale, assignment, transfer, conveyance or other
disposition (whether voluntary, involuntary or by
operation of law);
(ii) the creation, sufferance or granting of any lien,
encumbrance, security interest or collateral
assignment (whether voluntarily, involuntarily or by
operation of law), other than the lien hereof, the
leases of the Premises assigned to Lender, the
Permitted Encumbrances, the granting of a lien on a
tenant's interest under any Lease in accordance with
the terms specifically set forth therein, and those
liens which Borrower is contesting in accordance
with the provisions of paragraph 1(e);
(iii) the issuance or other creation of ownership
interests in an entity;
(iv) the reconstitution or conversion from one entity to
another type of entity;
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(v) a merger, consolidation, reorganization or any other
business combination; or
(vi) a conversion to or operation of all or any portion
of the Premises as a cooperative or condominium form
of ownership.
"PERMITTED TRANSFER" shall mean:
(i) a minor (as determined by Lender) conveyance of an
interest in the Premises by Borrower, such as a
utility easement, and for which Lender has given its
prior written consent and imposed such conditions as
Lender deems advisable and appropriate;
(ii) a sale, assignment, transfer or conveyance of all or
any portion of the Premises or an interest in the
Premises for which Borrower has complied with all of
the Property Transfer Requirements; or
(iii) any of the following Transfers for which Borrower
has complied with all of the Ownership Transfer
Requirements as applicable and Lender has given its
prior written consent (and in connection with such
consent, Lender may impose any conditions it wishes
in its sole discretion):
(A) a sale, assignment, transfer, or conveyance
of an ownership interest or interest therein;
(B) the issuance or other creation of ownership
interests in an entity;
(C) a reconstitution or conversion from one
entity to another type of entity;
(D) a merger, consolidation, reorganization or
any other business combination;
(iv) with at least thirty (30) days advance written
notice, transfers of ownership interests in Borrower
and entities owning interests in Borrower between
Inland Western Retail Real Estate Trust, Inc., a
Maryland corporation ("IWRRET"), and its wholly
owned affiliates for which Borrower has complied
with all of the Specific Transfer Requirements - 1;
(v) with at least thirty (30) days advance written
notice, transfers of ownership interests in Borrower
and/or shares in entities owning interests in
Borrower to Qualified New Partners or Qualified New
Members (as the case may be) (hereinafter
defined), for which Borrower has complied with all
of the Specific Transfer Requirements - 2 (for
purposes of this Permitted Transfer, a "Qualified
New Partner" or a Qualified New Member" shall be
defined as an institutional investor or fund managed
by an institutional investor having assets of
$100,000,000 or more);
(vi) with at least thirty (30) days advance written
notice, transfers of direct or indirect ownership
interests in Borrower and entities owning interests
in Borrower and IWRRET, and its wholly owned
affiliates to a Qualified Successor (hereinafter
defined) and/or its wholly owned affiliates for
which Borrower has complied with all of the Specific
Transfer Requirements - 3 (for purposes of this
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Permitted Transfer, a "Qualified Successor" shall be
defined as an entity with a tangible net worth of
$200,000,000 or more; a debt to equity ratio of 1.5
or less; and management personnel experienced in the
ownership and management of retail properties
similar to the Premises); or
(vii) transfers of ownership interests in IWRRET.
"PROPERTY TRANSFER REQUIREMENTS" are all of the following:
1. Prior review and approval of the proposed purchaser
or other transferee and the subject transaction by
Lender, at Lender's sole discretion. Review of the
proposed purchaser or other transferee and the
subject transaction shall encompass various factors,
including, but not limited to, the proposed
purchaser's or other transferee's creditworthiness,
financial strength, and real estate management and
leasing expertise as well as the proposed
transaction's effect on the Premises, the Borrower,
and other security for the Loan;
2. Payment to Lender of an assumption fee equal to the
greater of: (a) one half of one percent (0.5%) of
the principal balance of the Note; or (b)
$15,000.00; provided, however, that Lender will
require $15,000.00 of such fee to be paid at the
beginning of Lender' s review process, and such sum
shall be nonrefundable and earned upon receipt by
Lender whether or not the transaction is ultimately
completed or Lender ultimately approves the proposed
purchaser or other transferee:,
3. Receipt, at Borrower's expense, of a new standard
loan policy in a form approved by the insurance
commissioner of the state of Texas in the full
amount of the Loan, in form and by an issuer
satisfactory to Lender, and which insures this Deed
of Trust to be a first and prior lien subject only
to those exceptions which were previously approved
by Lender and provides coverage against usury and
mechanic's liens. If usury coverage is not
available, Borrower shall provide, at Borrower's
expense, a usury opinion letter in form and
substance and from counsel acceptable to Lender;
4. Receipt by Lender of copies of all relevant
information and documentation relating to or
required by Lender in connection with the proposed
transfer including but not limited to (a) the
organizational documents of the proposed transferee
and an opinion of counsel satisfactory to Lender as
to its due formation, valid existence and authority
to enter into and carry out the proposed transaction
as well as the proposed transferee's compliance with
its status as a Single Purpose Entity; (b) the deeds
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or other instruments of transfer and documents
relating to the assignment and assumption of Leases;
(c) evidence of compliance with the insurance
requirements contained in the Loan Documents; and
(d) compliance with such other closing requirements
as are customarily imposed by Lender in connection
with such transactions;
5. Execution, delivery, acknowledgment and recordation,
as applicable, of new, revised and/or replacement
assumption agreements, loan modification agreements,
indemnification agreements, escrow security or
property reserves agreements, security instruments,
financing statements, UCCs, new or revised letters
of credit and/or guarantees in form and substance
satisfactory to Lender;
6. Payment of outside counsel fees and costs, other
applicable professional's fees and costs, taxes,
recording fees and the like, and any other fees and
costs incurred;
7. Receipt by Lender of 60 days advance written notice
of the proposed Transfer in question;
8. Receipt by Lender of a waiver from any tenant having
a right or option to purchase the Premises or any
portion thereof, waiving such right or option in
form and substance acceptable to Lender; and
9. At Lender's option, and if required by the
procedures promulgated by any rating agency(ies)
associated with a securitization transaction with
respect to the Loan, receipt by Lender of written
evidence from such agency(ies) to the effect that
the proposed transfer will not result in a
re-qualification, reduction or withdrawal of any
rating in effect immediately prior to such transfer
issued in connection with the securitization
transaction.
"OWNERSHIP TRANSFER REQUIREMENTS" are all of the Property
Transfer Requirements which Lender deems appropriate in its
discretion, as well as a reasonable processing fee to be
determined by Lender; provided, however, that (i) with
respect to item 2 of the Property Transfer Requirements,
the 0.5% component of the fee shall be prorated (subject,
however, to the $15,000 minimum) based on Lender's
calculation of the effective percentage interest in
Borrower transferred, and (ii) item 3 of the Property
Transfer Requirements shall be required, at Lender's
discretion, only in the event of (A) a merger,
consolidation, reorganization or any other business
combination or (B) a reconstitution or conversion from one
entity to another type of entity.
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"SPECIFIC TRANSFER REQUIREMENTS - 1" are all of the
following which Borrower agrees to provide to Lender prior
to each proposed transfer: (i) a transfer fee of $2,000.00;
(ii) all relevant documentation and information related to
the organization, authority, and validity of the proposed
ownership interest purchaser, transferee and the
transaction in general; (iii) all documents and instruments
of conveyance, transfer and assignment; (iv) at Lender's
discretion, a reaffirmation of the obligations of the
Guarantor(s) under the Guaranty; and (v) evidence of
payment of all outside counsel fees, professional fees,
title insurance fees, if any, and any and all other fees,
costs and expenses related to the proposed transfer
(provided that no assumption or transfer fee other than the
$2,000 fee stated in (i) above shall be required).
"SPECIFIC TRANSFER REQUIREMENTS - 2" are all of the
following which Borrower agrees to provide to Lender prior
to each proposed transfer: IWRRET or a wholly owned
affiliate thereof (i) remains the sole general partner of
the Borrower, (ii) (a) retains 51% or more of the ownership
interest in the Borrower, or (b) retains ownership of 20%
to 50% of the ownership interest in the Borrower subject to
Lender's review and approval in each instance of the
proposed transferee and the subject transaction; Lender's
review of the proposed transferee and the subject
transaction shall encompass various factors, including but
not limited to, transferee's creditworthiness, financial
strength, and real estate management expertise, as well as
the proposed transaction's effect on the Premises, Borrower
and the other security for the Loan, and (iii) otherwise
retains operational and management control of Borrower as
determined by Lender, and further provided Borrower
provides Lender each of the following items prior to each
proposed transfer: (a) a transfer fee equal to the greater
of $5,000.00 or the product of the percentage ownership
interest in Borrower to be transferred multiplied by one
percent (1%)of the outstanding principal balance of the
Loan; (b) all relevant documentation and information
related to the organization, authority, and validity of the
proposed ownership interest purchaser, transferee and the
transaction in general; (c) all documents and instruments
of conveyance, transfer and assignment; (d) a reaffirmation
of the obligations of the Guarantor(s) under the Guaranty;
and (e) evidence of payment of all outside counsel fees,
professional fees, title insurance fees and any and all
other fees, costs and expenses related to the proposed
transfer (provided that no assumption or transfer fee other
than the $5,000.00 fee stated in (a) above shall be
required).
"SPECIFIC TRANSFER REQUIREMENTS - 3" are all of the
following which Borrower agrees to provide to Lender prior
to each proposed transfer: (i) said transfers are made to
accommodate either the merger of IWRRET with the Qualified
Successor or the sale of a majority of IWRRET's assets to
the Qualified Successor; (ii) the Qualified Successor
retains direct or indirect ownership of 51% or more of the
ownership interests in the Borrower; (iii) the Qualified
Successor or its wholly owned affiliate
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remains the sole general partner of Borrower; and (iv) the
Qualified Successor otherwise retains operational and
management control of Borrower as determined by Lender, and
further provided, Borrower provides Lender with each of the
following items prior to the proposed transfer: (a) a
transfer fee of $10,000.00;(b) all relevant documentation
and information related to the organization, authority, and
validity of the proposed ownership interest purchaser,
transferee and the transaction in general; (c) all
documents and instruments of conveyance, transfer and
assignment; (d) a reaffirmation of the obligations of the
Guarantor(s) under the Guaranty or assumption thereof by an
individual(s) or entity(ies) acceptable to Lender in its
sole discretion; and (e) evidence of payment of all outside
counsel fees, professional fees, title insurance fees and
any and all other fees, costs and expenses related to the
proposed transfer (provided that no assumption or transfer
fee other than the $10,000.00 fee stated in (a) above shall
be required).
3. (a) Borrower shall pay or cause to be paid when due and before
any penalty attaches or interest accrues all general taxes,
special taxes, assessments (including assessments for
benefits from public works or improvements whenever begun
or completed), utility charges, water charges, sewer
service charges, common area maintenance charges, if any,
vault or space charges and all other like charges against
or affecting the Premises or against any property or
equipment located on the Premises, or which might become a
lien on the Premises, and shall, within 10 days following
Lender's request, furnish to Lender a duplicate receipt of
such payment. If any such tax, assessment or charge may
legally be paid in installments, Borrower may, at its
option, pay such tax, assessment or charge in installments.
(b) If Borrower desires to contest any tax, assessment or
charge relating to the Premises, Borrower may do so by
paying the same in full, under protest, in the manner
provided by law; provided, however, that
(i) if contest of any tax, assessment or charge may be
made without the payment thereof, and
(ii) such contest shall have the effect of preventing the
collection of the tax, assessment or charge so
contested and the sale or forfeiture of the Premises
or any part thereof or any interest therein to
satisfy the same,
then Borrower may in its discretion and upon the giving of
written notice to Lender of its intended action and upon
the furnishing to Lender of such security or bond as Lender
may require, contest any such tax, assessment or charge in
good faith and in the manner provided by law. All costs and
expenses incidental to such contest shall be paid by
Borrower. In the event of a ruling or adjudication adverse
to Borrower, Borrower shall promptly pay such tax,
assessment or charge. Borrower shall indemnify
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and save harmless the Lender and the Premises from any loss
or damage arising from any such contest and shall, if
necessary to prevent sale, forfeiture or any other loss or
damage to the Premises or to Lender, pay such tax,
assessment or charge or take whatever action is necessary
to prevent any sale, forfeiture or loss.
4. (a) Borrower shall at all times keep or cause to be kept in
force (i) property insurance insuring all Improvements
which now are or hereafter become a part of the Premises
for perils covered by a causes of loss-special form
insurance policy, including coverage against terrorism
containing both replacement cost and agreed amount
endorsements or equivalent coverage; (ii) commercial
general liability insurance naming Lender as an additional
insured protecting Borrower and Lender against liability
for bodily injury or property damage occurring in, on or
adjacent to the Premises in commercially reasonable
amounts; (iii) boiler and machinery insurance if the
property has a boiler or is an office building; (iv) rental
value insurance for the perils specified herein for one
hundred percent (100%) of the Rents (including operating
expenses, real estate taxes, assessments and insurance
costs which are lessee's liability) for a period of twelve
(12) months; (v) builders risk insurance during all periods
of construction; and (vi) insurance against all other
hazards as may be reasonably required by Lender, including,
without limitation, insurance against loss or damage by
flood. Notwithstanding anything herein above to the
contrary, if neither: (i) property insurance without an
exclusion for terrorism, terrorist acts or similar perils
("Terrorism") nor; (ii) a separate policy insuring
specifically against Terrorism is available at a cost which
is in Lender's opinion is commercially reasonable, taking
into consideration, among other things: (a) how properties
similar in type, size, quality and location are insured
with respect to Terrorism; and (b) the amount of coverage,
premium and deductible applicable to such insurance, then
Lender agrees to waive the requirement to provide insurance
covering Terrorism until such coverage again becomes
available at a cost, which in Lender's opinion is
commercially reasonable.
(b) All insurance (including deductibles and exclusions) shall
be in form, content and amounts approved by Lender and
written by an insurance company or companies approved by
Lender and rated A-, class size VIII or better in the most
current issue of Best's Insurance Reports and which is
licensed to do business in the state in which the Premises
are located or a governmental agency or instrumentality
approved by Lender. The policies for such insurance shall
have attached thereto standard mortgagee clauses in favor
of and permitting Lender to collect any and all proceeds
payable thereunder and shall include a 30 day (except for
nonpayment of premium, in which case, a 10 day) notice of
cancellation clause in favor of Lender. All certificates of
insurance (or policies if requested by Lender) shall be
delivered to and held by Lender as further security for the
payment of the Note and any other obligations arising under
the Loan Documents, with evidence of renewal coverage
delivered to Lender at
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least 15 days before the expiration date of any policy.
Borrower shall not carry or permit to be carried separate
insurance, concurrent in kind or form and contributing in
the event of loss, with any insurance required in the Loan
Documents.
5. (a) Upon the occurrence of an Event of Default and upon request
of Lender, Borrower shall deposit with and pay to Lender,
on the Closing Date and/or on each payment date specified
in the Note, sums calculated by Lender for payment of the
following as they become due and payable: (i) the estimated
taxes and assessments assessed or levied against the
Premises, and (ii) the estimated premiums for insurance
required by the Loan Documents, excluding commercial
general liability insurance. Lender shall use such deposits
to pay the taxes, assessments and premiums when the same
become due. Borrower shall procure and deliver to Lender,
in advance, statements for such charges. If the total
payments made by Borrower under this paragraph exceed the
amount of payments actually made by Lender for taxes,
assessments and insurance premiums, such excess shall be
credited by Lender on subsequent deposits to be made by
Borrower. If, however, the deposits are insufficient to pay
the taxes, assessments and insurance premiums when the same
shall be due and payable, Borrower will pay to Lender any
amount necessary to make up the deficiency, five (5)
business days before the date when payment of such taxes,
assessments and insurance premiums shall be due. If at any
time Borrower shall tender to Lender, in accordance with
the provisions of the Note secured by this Deed of Trust,
full payment of the entire Indebtedness represented
thereby, Lender shall, in computing the amount of such
Indebtedness, credit to the account of Borrower any balance
remaining in the funds accumulated and held by Lender under
the provisions of this paragraph. If there is an Event of
Default resulting in a public sale of the Premises, or if
Lender otherwise acquires the Premises after an Event of
Default, Lender shall apply, at the time of commencement of
such proceedings, or at the time the Premises is otherwise
acquired, the balance then remaining in the funds
accumulated under this paragraph as a credit toward any
delinquent or accrued taxes and then in such priority as
Lender elects to the other Indebtedness.
(b) Any funds held under this paragraph shall not constitute
any deposit or account of the Borrower or moneys to which
the Borrower is entitled upon demand, or upon the mere
passage of time, or sums to which Borrower is entitled to
any interest or crediting of interest by virtue of Lender's
mere possession of such deposits. Lender shall not be
required to segregate such deposits and may hold such
deposits in its general account or any other account and
may commingle such deposits with any other moneys of Lender
or moneys which Lender is holding on behalf of any other
person or entity.
6. In the event of any damage to or destruction of the Premises, or
any part thereof:
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(a) Borrower will immediately notify Lender thereof in the
manner provided in this Deed of Trust for the giving of
notices. Lender shall have the right (which may be waived
by Lender in writing) to settle and adjust any claim under
such insurance policies required to be maintained by
Borrower. In all circumstances, the proceeds thereof shall
be paid to Lender and Lender is authorized to collect and
to give receipts therefor. Borrower agrees and acknowledges
that such proceeds shall be held by Lender without any
allowance of interest and that in any bankruptcy proceeding
of Borrower, all such proceeds shall be deemed to be "Cash
Collateral" as that term is defined in Section 363 of the
Bankruptcy Code. Provided that no Event of Default exists,
Borrower shall have the right to participate in any
settlement or adjustment; provided, however, that any
settlement or adjustment shall be subject to the written
approval of Lender, not to be unreasonably withheld.
(b) Such proceeds, after deducting therefrom any reasonable
expenses incurred by Lender in the collection thereof
(including but not limited to reasonable attorneys' fees
and costs), shall be applied by Lender to pay the
Indebtedness secured hereby including, but not limited to
the Make Whole Premium, whether or not then due and
payable, provided, however, that if no Event of Default
exists at the time of such application, no Make Whole
Premium shall be due.
Notwithstanding anything hereinabove to the contrary,
(i) in the event the casualty occurs more than six (6)
months prior to the Maturity Date and no Event of
Default exists, Lender shall apply such proceeds as
outlined below; provided, further, that Lender's
rights in this subparagraph are subject to
Borrower's rights to use such proceeds for
rebuilding and restoring the buildings and
improvements as may be required or permitted by law
in effect at the time of the loss.
(A) If the aggregate amount of such proceeds is
less than $250,000, Lender shall pay such
proceeds directly to Borrower, to be held in
trust for Lender and applied to the cost of
rebuilding and restoring the Premises.
(B) If the aggregate amount of such proceeds
equals or exceeds $250,000 Lender shall
disburse such amounts of the proceeds as
Lender reasonably deems necessary for the
repair or replacement of the Premises,
subject to the conditions set forth in
paragraph 6(c) below.
(ii) in the event (x) an Event of Default exists, or (y)
the casualty occurs during the last six (6) months
prior to the Maturity Date and Lender determines
that the repair and restoration of such casualty
cannot be completed prior to the Maturity Date, or
(z) the
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<Page>
conditions set forth in paragraph 6(c) are not met,
then Lender, in its sole and absolute discretion may
either:
(A) declare the entire Indebtedness to be
immediately due and payable, provided,
however, that if no Event of Default exists,
no Make Whole Premium shall be due. All
proceeds shall be applied toward payment of
the Indebtedness in such priority as Lender
elects; or
(B) disburse such proceeds as Lender reasonably
deems necessary for the repair or replacement
of the Premises subject to those conditions
set forth in paragraph 6(c) which Lender in
its sole and absolute discretion may require.
(c) (i) In the event that Borrower is to be reimbursed out
of the insurance proceeds or out of any award or
payment received with respect to a Taking, Lender
shall from time to time make available such
proceeds, subject to the following conditions: (a)
there continues to exist no Event of Default; (b)
the delivery to Lender of satisfactory evidence of
the estimated cost of completion of such repair and
restoration work and any architect's certificates,
waivers of lien, contractor's sworn statements, and
other evidence of cost and of payment and of the
continued priority of the lien hereof over any
potential liens of mechanics and materialmen
(including, without limitation, title policy
endorsements) as Lender may reasonably require and
approve; (c) the time required to complete the
repair and restoration work and for the income from
the Premises to return to the level it was prior to
the loss will not exceed the coverage period of the
rental value insurance required hereunder; (d) the
annual net cash flow (annual net operating income
after deduction for tenant improvements, leasing
commissions, annual replacement reserves, and a
management fee) shall equal or exceed 1.5 times the
annual debt service on the Note. Only net operating
income from approved executed Leases in effect on
the Premises, having at least three (3) years
remaining prior to the expiration of their term,
with no uncured defaults, shall be used in Lender's
determination of the annual net cash flow; (e)
Lender approves the plans and specifications of such
work before such work is commenced if the estimated
cost of rebuilding and restoration exceeds 25% of
the Indebtedness or involves any structural changes
or modifications. If said plans and specifications
substantially comply with those previously approved
by Lender, Lender's approval shall not be
unreasonably withheld; (f) if the amount of any
insurance proceeds, award or other payment is
insufficient to cover the cost of restoring and
rebuilding the Premises, Borrower shall pay such
cost in excess of such proceeds, award or other
payment before being entitled to reimbursement out
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of such funds; (g) Borrower pays to Lender a
non-refundable processing fee equal to the greater
of $5,000.00 or .25% of the amount of such proceeds
within sixty (60) days of the occurrence of any such
damage or destruction and before Lender disburses
any proceeds; and (h) such other conditions to such
disbursements, in Lender's reasonable discretion, as
would be customarily required by a construction
lender doing business in the area where the Premises
is located or which are otherwise required by any
rating agency rating a securitization transaction
with respect to the Loan.
(ii) No payment made by Lender prior to the final
completion of the repair or restoration work shall,
together with all payments theretofore made, exceed
90% of the cost of such work performed to the time
of payment, and at all times the undisbursed balance
of said proceeds shall be at least sufficient to pay
for the cost of completion of such work free and
clear of all liens. Any proceeds remaining after
payment of the cost of rebuilding and restoration
shall, at the option of Lender, either be (a)
applied in reduction of the Indebtedness secured
hereby, provided, however, that if no Event of
Default exists at the time of such application, no
Make Whole Premium shall be due, or (b) paid to
Borrower.
(iii) Repair and restoration of the Premises shall be
commenced promptly after the occurrence of the loss
and shall be prosecuted to completion diligently,
and the Premises shall be so restored and rebuilt to
substantially the same character and quality as
prior to such damage and destruction and shall
comply with all Legal Requirements.
(d) Should such damage or destruction occur after foreclosure
or sale proceedings have been instituted, the proceeds of
any such insurance policy or policies, if not applied in
rebuilding or restoration of the Improvements, shall be
used to pay (i) the Indebtedness then due and owing in the
event of a non-judicial sale in such priority as Lender
elects, or (ii) the amount due in accordance with any
decree of foreclosure or deficiency judgment that may be
entered in connection with such proceedings, and the
balance, if any, shall be paid to the owner of the equity
of redemption if it shall then be entitled to the same, or
otherwise as any court having jurisdiction may direct.
7. In the event of the commencement of a Taking affecting the
Premises:
(a) Borrower shall notify Lender thereof in the manner provided
in this Deed of Trust for the giving of notices. Lender may
participate in such proceeding, and Borrower shall deliver
to Lender all documents requested by it to permit such
participation.
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(b) Borrower shall cause the proceeds of any award or other
payment made relating to a Taking, to be paid directly to
Lender. Lender, in its sole and absolute discretion: (i)
may apply all such proceeds to pay the Indebtedness in such
priority as Lender elects, provided however, that if no
Event of Default exists at the time of such application no
Make Whole Premium shall be due; or (ii) subject to and in
accordance with the provisions set forth in paragraph 6(c)
above, may disburse such amounts of the proceeds as Lender
reasonably deems necessary for the repair or replacement of
the Premises.
Notwithstanding anything herein above to the contrary, provided no
Event of Default exists, Lender agrees to disburse the proceeds
received from any Inconsequential Taking, as hereinafter defined,
to Borrower for the repair and/or replacement of the Premises.
An Inconsequential Taking shall be a Taking which (i) results in
less than $250,000 in proceeds; (ii) does not, in Lender's
determination, materially or adversely affect the Improvements,
parking, access, ingress, egress or use of the Premises; and
(iii) does not trigger any rights or options of tenants under the
Leases.
Borrower has advised Lender of the pending condemnation action
Cause No.2002ED0053 affecting the Premises (the "Existing
Condemnation Action"). Notwithstanding anything herein to the
contrary, Lender agrees that the proceeds of any award or other
payment made in connection with the Existing Condemnation Action
shall be disbursed to Borrower and, to the extent requiring by the
condemning authority, Lender agrees to execute a release of lien
of this Deed of Trust covering the portion of the Premises
affected by the Existing Condemnation Action within ten (10) days
after receipt of a request therefor together with all
documentation necessary for Lender to process such request.
Borrower shall pay all outside counsel fees and costs, other
applicable professional's fees and costs, taxes, recording fees
and the like, and any other fees and costs incurred by Lender in
connection with such release of lien.
8. If by the laws of the United States of America or of any state or
governmental subdivision having jurisdiction over Borrower or of
the Premises or of the Loan evidenced by the Loan Documents or any
amendments or modifications thereof, any tax or fee is due or
becomes due or is imposed upon Lender in respect of the issuance
of the Note hereby secured or the making, recording and
registration of this Deed of Trust or otherwise in connection with
the Loan Documents, the Environmental Indemnity or the Loan,
except for Lender's income or franchise tax, to the extent
permitted by applicable law Borrower covenants and agrees to pay
such tax or fee in the manner required by such law and to hold
harmless and indemnify Trustee and Lender, their successors and
assigns, against any liability incurred by reason of the
imposition of any such tax or fee.
9. (a) Upon the occurrence of any Event of Default, Lender may,
but need not, make any payment or perform any act herein
required of Borrower, in any form and manner deemed
expedient and may, but need not, make full or partial
payments of principal or interest on prior encumbrances, if
any, and
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purchase, discharge, compromise or settle any tax lien or
other prior lien or title or claim thereof, or redeem from
any tax sale or forfeiture affecting said Premises, or
contest any tax or assessment. All moneys paid for any of
the purposes herein authorized and all reasonable expenses
paid or incurred in connection therewith, including but not
limited to, reasonable attorneys' fees and costs and
reasonable attorneys' fees and costs on appeal, and any
other money advanced by Lender to protect the Premises and
the lien hereof, shall be so much additional Indebtedness
secured hereby and shall become immediately due and payable
without notice and with interest thereon at the Default
Rate from the date of expenditure or advance until paid.
(b) In making any payment hereby authorized relating to taxes
or assessments or for the purchase, discharge, compromise
or settlement of any prior lien, Lender may make such
payment according to any bill, statement or estimate
secured from the appropriate public office without inquiry
into the accuracy thereof or into the validity of any tax,
assessment, sale, forfeiture, tax lien or title or claim
thereof or without inquiry as to the validity or amount of
any claim for lien which may be asserted.
10. If one or more of the following events (herein called an "EVENT
OF DEFAULT" or "EVENTS OF DEFAULT" as the context so requires)
shall have occurred:
(a) failure to pay when due any principal, interest, Make Whole
Premium or other Indebtedness, utilities, taxes or
assessments or insurance premiums required pursuant to the
Loan Documents or the Environmental Indemnity, and such
failure shall have continued for 5 days as to payment of
any principal, interest or taxes or assessments, or
insurance premiums or for 5 days after written notice
specifying such default is given by Lender to Borrower as
to payment of any Make Whole Premium; or
(b) Borrower, Interest Owner or any guarantor voluntarily
brings or acquiesces to any of the following: (A) any
action for dissolution, act of dissolution or dissolution
or the like of Borrower, Interest Owner or any guarantor
under the Federal Bankruptcy Code as now or hereafter
constituted; (B) the filing of a petition or answer
proposing the adjudication of Borrower, Interest Owner or
any guarantor as a bankrupt or its reorganization or
arrangement, or any composition, readjustment,
liquidation, dissolution or similar relief with respect to
it pursuant to any present or future federal or state
bankruptcy or similar law; or (C) the appointment by order
of a court of competent jurisdiction of a receiver, trustee
or liquidator of the Premises or any part thereof or of
Borrower, Interest Owner or any guarantor or of
substantially all of the assets of Borrower, Interest Owner
or any guarantor; or
(c) one or more of the items set forth in paragraph 10(b) above
occur which were either not (i) voluntarily brought by
Borrower, Interest Owner or any guarantor or (ii)
acquiesced in by Borrower, Interest Owner or any
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guarantor, and which are not discharged or dismissed within
90 days after the action, filing or appointment, as the
case may be; or
With respect to the matters in (b) and (c) above for an
Interest Owner only, no Event of Default shall occur until
an interested party or Interest Owner asserts a claim or
right against Borrower or the Premises which delays or
otherwise affects Lender's rights, remedies, or interests
granted under the Loan Documents (whether or not such
assertion is successful).
(d) with respect to the matters not described in the other
subparagraphs of this paragraph 10, failure to duly observe
or perform any covenant, condition or agreement of the
Borrower or any guarantor contained in this Deed of Trust,
the Guaranty, the Note or the Assignment of Leases from
Borrower to Lender or in any other instrument or agreement
which evidences or secures the Loan (the "LOAN DOCUMENTS"),
or in the Environmental Indemnity and such failure shall
have continued for 30 days after Notice specifying such
failure is given by Lender to Borrower; or
If any failure to observe or perform under (d) above shall
be of such nature that it cannot be cured or remedied
within 30 days, Borrower shall be entitled to a reasonable
period of time to cure or remedy such failure (not to
exceed 90 days following the giving of Notice), provided
Borrower commences the cure or remedy thereof within the 30
day period following the giving of Notice and thereafter
proceeds with diligence, as determined by Lender, to
complete such cure or remedy.
(e) the failure of Borrower to duly observe or perform any of
the covenants, conditions and agreements of the Borrower
contained in paragraph 2(f) of this Deed of Trust; or
(f) any representation when made by or on behalf of Borrower,
Interest Owner or any guarantor regarding the Premises, the
making or delivery of any of the Loan Documents or the
Environmental Indemnity or in any material written
information provided by or on behalf of Borrower, Interest
Owner or any guarantor in connection with the Loan shall
prove to be untrue or inaccurate in any material respect;
or
(g) the failure of Borrower to give Notice to Lender within 90
days after the death of any individual who is personally
liable for any obligation under the Loan Documents or the
Environmental Indemnity, as Borrower, indemnitor or
guarantor, whether or not such individual had executed the
Note or this Deed of Trust; or
(h) subject to the provisions of paragraph 2(f), the failure of
Borrower to provide Lender with an assumption agreement in
form and substance and executed by a person(s) or
entity(ies) acceptable to Lender in its sole discretion to
assume the obligations of any deceased individual who is
personally liable for any obligation under the Loan
Documents or the
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Environmental Indemnity, as Borrower, indemnitor or
guarantor, whether or not such individual had executed the
Note or this Deed of Trust, and such failure shall have
continued for 90 days after the death of such individual;
or
(i) the failure of Borrower to remain a Single Purpose Entity;
(j) the failure of Borrower to comply with the requirements of
paragraph 49 hereof within 120 days from the date hereof
and such failure shall have continued for thirty (30) days
after written notice from Lender to Borrower;
then, in each and every such case, the whole of said principal sum
hereby secured shall, at the option of the Lender and without
further notice to Borrower, become immediately due and payable
together with accrued interest thereon, a Make Whole Premium
calculated in accordance with the provisions of the Loan Documents
and all other Indebtedness, and whether or not Lender has
exercised said option, interest shall accrue on the entire
principal balance and any interest or Make Whole Premium or other
Indebtedness then due, at the Default Rate until fully paid or if
Lender has not exercised said option, for the duration of any
Event of Default. As used in this Deed of Trust, "SINGLE PURPOSE
ENTITY" means a corporation, limited or general partnership,
limited liability company, or business trust which, at all times
until the Indebtedness is paid in full (i) will be organized
solely for the purpose of owning the Premises, (ii) will not
engage in any business unrelated to the ownership of the Premises,
(iii) will not have any assets other than those related to the
Premises, (iv) will not engage in, seek or consent to any
dissolution, winding up, liquidation, consolidation or merger,
and, except as otherwise expressly permitted by the Loan
Documents, will not engage in, seek or consent to any asset sale,
transfer of partnership, membership, shareholder, beneficial
interests, or amendment of its limited partnership agreement,
articles of incorporation, articles of organization, certificate
of formation, operating agreement, trust agreement, or trust
certificate (as applicable), (v) will not fail to correct any
known misunderstanding regarding the separate identity of such
Entity, (vi) without the unanimous consent of all of the partners,
directors, members, beneficial owners and trustees, as applicable,
will not with respect to itself or to any other Entity in which it
has a direct or indirect legal or beneficial ownership interest
(a) file a bankruptcy, insolvency or reorganization petition or
otherwise institute insolvency proceedings or otherwise seek any
relief under any laws relating to the relief from debts or the
protection of debtors generally; (b) seek or consent to the
appointment of a receiver, liquidator, assignee, trustee,
sequestrator, custodian or any similar official for such Entity or
all or any portion of such Entity's properties; (c) make any
assignment for the benefit of such Entity's creditors; or (d) take
any action that might cause such Entity to become insolvent, (vii)
will maintain its accounts, books and records separate from any
other person or Entity, (viii) will maintain its books, records,
resolutions and agreements as official records, (ix) has not
commingled and will not commingle its funds or assets with those
of any other person or Entity, (x) has held and will hold its
assets in its own name, (xi) will conduct its business in its
name, (xii) will
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maintain its financial statements, accounting records and other
Entity documents separate from any other person or Entity, (xiii)
will pay its own liabilities out of its own funds and assets,
(xiv) will observe all corporate, limited liability company and
partnership formalities, as applicable, (xv) has maintained and
will maintain an arms-length relationship with its Affiliates,
(xvi) if such Entity owns the Premises, will have no indebtedness
other than the Indebtedness and commercially reasonable unsecured
trade payables in the ordinary course of business relating to the
ownership and operation of the Premises which are paid within
sixty (60) days of the date incurred, (xvii) will not assume or
guarantee or become obligated for the debts of any other person or
Entity or hold out its credit as being available to satisfy the
obligations of any other person or Entity, except for the
Indebtedness, (xviii) will not acquire obligations or securities
of its partners, members, trustees, beneficial owners or
shareholders, (xix) will allocate fairly and reasonably shared
expenses, including, without limitation, shared office space and
uses separate stationery, invoices and checks, (xx) will not
pledge its assets for the benefit of any other person or Entity,
(xxi) will hold itself out and identify itself as a separate and
distinct Entity under its own name and not as a division or part
of any other person or Entity, (xxii) will not make loans to any
person or Entity, (xxiii) will not identify its partners, members,
shareholders, trustees, beneficiaries or any Affiliates of any of
them as a division or part of it, (xxiv) will not enter into or be
a party to, any transaction with its partners, members,
shareholders, beneficiaries, trustees or its Affiliates except in
the ordinary course of its business and on terms which are
intrinsically fair and are no less favorable to it than would be
obtained in a comparable arms-length transaction with an unrelated
third party, (xxv) will pay the salaries of its own employees from
its own funds, (xxvi) will maintain adequate capital in light of
its contemplated business operations, (xxvii) if such Entity is a
limited liability company, limited partnership, or business trust
then such Entity shall continue (and not dissolve) for so long as
a solvent managing member, general partner, or trustee, as
applicable, exists and such Entity's organizational documents
shall contain such provision.
11. Borrower agrees that if Lender accelerates the whole or any part
of the principal sum hereby secured after the occurrence of an
Event of Default, or applies any proceeds pursuant to the
provisions hereof, Borrower waives any right to prepay the
principal sum hereby secured in whole or in part without premium
and agrees to pay, as yield maintenance protection and not as a
penalty, a "MAKE WHOLE PREMIUM". However, in the event any
proceeds from a casualty or Taking of the Premises are applied to
reduce the principal balance under the Note, no Make Whole Premium
shall be due so long as no Event of Default exists at the time of
such application. The Make Whole Premium shall be the lesser of
(i) the maximum amount which is allowable under Texas law limiting
the amount of interest which may be contracted for, charged or
received, after considering all other amounts constituting or
deemed to constitute interest, and (ii) the greater of one percent
(1%) of the principal amount to be prepaid or a premium calculated
as follows:
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(a) Determine the "REINVESTMENT YIELD." The Reinvestment Yield
will be equal to the yield on the U.S. Treasury Issue
("PRIMARY ISSUE")* published one week prior to the date of
prepayment and converted to an equivalent monthly
compounded nominal yield.
At this time there is not a U.S. Treasury Issue for this
prepayment period. At the time of prepayment, Lender shall
select in its sole and absolute discretion a U.S. Treasury
Issue with similar remaining time to the Maturity Date.
(b) Calculate the "PRESENT VALUE OF THE LOAN." The Present
Value of the Loan is the present value of the payments to
be made in accordance with the Note (all installment
payments and any remaining payment due on the Maturity
Date) discounted at the Reinvestment Yield for the number
of months remaining from the date of prepayment to the
Maturity Date. In the event of a partial prepayment as a
result of the aforementioned application of proceeds, the
Present Value of the Loan shall be calculated in accordance
with the preceding sentence multiplied by the fraction
which results from dividing the amount of the prepaid
proceeds by the principal balance immediately prior to
prepayment.
(c) Subtract the amount of the prepaid proceeds from the
Present Value of the Loan as of the date of prepayment. Any
resulting positive differential shall be the premium.
Notwithstanding anything herein to the contrary, during the last
90 days prior to the Maturity Date, the Make Whole Premium shall
not be subject to the one percent (1%) minimum and shall be
calculated only as provided in (a) through (c) above.
12. Upon the occurrence of an Event of Default, Lender shall have the
option of declaring all Indebtedness in its entirety to be
immediately due and payable, and the liens and security interests
evidenced hereby shall be subject to foreclosure in any manner
provided for herein (to the extent not inconsistent with
applicable law) or provided for by law, as Lender may elect.
13. Upon the occurrence of an Event of Default, Trustee, Trustee's
successor or substitute, is authorized and empowered and it shall
be Trustee's special duty at the request of Lender to sell the
Premises or any part thereof situated in the State of Texas at the
courthouse of any county in the State of Texas in which any part
of the Premises is situated, at public auction to the highest
bidder for cash. The sale shall take place between the hours of 10
o'clock a.m. and 4 o' clock p.m. on the first Tuesday in any
month, at such area of the courthouse as shall be designated from
time to time by the commissioners court of the specified county
(or, if not so designated by the commissioners court, at such
other area in the courthouse as may be provided in the notice of
sale hereinafter described) after having given notice of such sale
in accordance with the statutes of the State of Texas then in
force governing sales of real estate under powers conferred by
deed
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of trust. Any sale made by Trustee hereunder may be as an entirety
or in such parcels as Lender may request, and any sale may be
adjourned by announcement at the time and place appointed for such
sale without further notice except as may be required by law. The
sale by Trustee of less than the whole of the Premises shall not
exhaust the power of sale herein granted, and Trustee is
specifically empowered to make successive sale or sales under such
power until the whole of the Premises shall be sold; and, if the
proceeds of such sale of less than the whole of the Premises shall
be less than the aggregate of the Indebtedness and the expense of
executing this trust as provided herein, this Deed of Trust and
the lien hereof shall remain in full force and effect as to the
unsold portion of the Premises just as though no sale had been
made; provided, however, that Borrower shall never have any right
to require the sale of less than the whole of the Premises, but
Lender shall have the right, at its sole election, to request
Trustee to sell less than the whole of the Premises. After each
sale, Trustee shall make to the purchaser or purchasers at such
sale good and sufficient conveyances in the name of Borrower,
conveying the property so sold to the purchaser or purchasers in
fee simple with general warranty of title, and shall receive the
proceeds of said sale or sales and apply the same as herein
provided. The power of sale granted herein shall not be exhausted
by any sale held hereunder by Trustee or Trustee's substitute or
successor, and such power of sale may be exercised from time to
time as many times as Lender may deem necessary until all of the
Premises has been duly sold and all Indebtedness has been fully
paid. In the event any sale hereunder is not completed or is
defective in the judgment of Lender, such sale shall not exhaust
the power of sale hereunder and Lender shall have the right to
cause a subsequent sale or sales to be made hereunder. If an Event
of Default occurs under this Deed of Trust, Lender shall have the
option to proceed with foreclosure in satisfaction of such item,
either through judicial proceedings or by directing Trustee to
proceed as if under a full foreclosure, conducting the sale as
herein provided without declaring the entire Indebtedness secured
by this Deed of Trust due and payable, and if sale is made because
of a default of an installment payment or a portion of an
installment, such sale may be made subject to the unmatured part
of the remaining unpaid Indebtedness; and it is agreed that such
sale, if so made, shall not in any manner affect the unmatured
portion of the Indebtedness secured by this Deed of Trust, but as
to such unmatured part, this Deed of Trust shall remain in full
force and effect as though no sale had been made under the
provisions of this paragraph. Several sales may be made hereunder
without exhausting the right of sale for any unmatured part of the
Indebtedness secured by this Deed of Trust. Any and all statements
of fact or other recitals made in any deed or deeds given by
Trustee or any successor or substitute appointed hereunder as to
nonpayment of the Indebtedness secured hereby, or as the
occurrence of an Event of Default, or as to Lender having declared
all of such Indebtedness to be due and payable, or as to the
request to sell, or as to notice of time, place and terms of sale
and of the properties to be sold having been duly given, or as to
the refusal, failure or inability to act of Trustee or any
substitute or successor, or as to the appointment of any
substitute or successor trustee, or as to any other act or thing
having been duly done by Lender or by such Trustee, substitute or
successor, shall be taken as prima facie evidence of the truth of
the facts so stated
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and recited. Trustee, Trustee's successor or substitute, may
appoint or delegate any one or more persons as agent to perform
any act or acts necessary or incident to any sale held by Trustee,
including the posting of notices and the conduct of sale, but in
the name and on behalf of Trustee, Trustee's successor or
substitute.
14. That portion of the Premises which is personal property is
referred to herein as the "Collateral". To secure the payment of
the Indebtedness, Borrower hereby grants to Lender a security
interest in the Collateral together with all proceeds of the
Collateral. Upon the occurrence of an Event of Default, Lender may
exercise its rights of enforcement with respect to the Collateral
under the Texas Business and Commerce Code, as amended, and in
conjunction with, in addition to or in substitution for those
rights and remedies:
(a) the Lender may enter upon the Premises to take possession
of, assemble and collect the Collateral or to render it
unusable; and
(b) the Lender may require Borrower to assemble the Collateral
and make it available at a place the Lender designates
which is mutually convenient to allow the Lender to take
possession or dispose of the Collateral; and
(c) written notice mailed to Borrower as provided herein ten
(10) days prior to the date of public sale of the
Collateral or prior to the date after which private sale of
the Collateral will be made shall constitute commercially
reasonable notice; and
(d) any sale made pursuant to the provisions of this paragraph
shall be deemed to have been a public sale conducted in a
commercially reasonable manner if held contemporaneously
with the sale of the Premises under power of sale as
provided herein upon giving the same notice with respect to
the sale of the Collateral hereunder as is required for
such sale of the Premises under power of sale; and
(e) in the event of a foreclosure sale, whether made by the
Trustee under the terms hereof, or under judgment of a
court, the Collateral and the Premises may, at the option
of the Lender, be sold as a whole; and
(f) it shall not be necessary that the Lender take possession
of the Collateral or any part thereof prior to the time
that any sale pursuant to the provisions of this paragraph
is conducted and it shall not be necessary that the
Collateral or any part thereof be present at the location
of such sale; and
(g) prior to application of proceeds of disposition of the
Collateral to the Indebtedness, such proceeds shall be
applied to the reasonable expenses of retaking, holding,
preparing for sale or lease, selling, leasing and the like
and the reasonable attorney's fees and legal expenses
incurred by the Lender; and
(h) any and all statements of fact or other recitals made in
any bill of sale or assignment or other instrument
evidencing any foreclosure sale hereunder
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as to nonpayment of the indebtedness or as to the
occurrence of any default, or as to the Lender having
declared all of such indebtedness to be due and payable, or
as to notice of time, place and terms of sale and of the
properties to be sold having been duly given, or as to any
other act or thing having been duly done by the Lender,
shall be taken as prima facie evidence of the truth of the
facts so stated and recited; and
(i) the Lender may appoint or delegate any one or more persons
as agent to perform any act or acts necessary or incident
to any sale held by the Lender, including the sending of
notices and the conduct of the sale, but in the name and on
behalf of the Lender.
15. This instrument shall be effective as a mortgage as well as a deed
of trust and upon the occurrence of an Event of Default may be
foreclosed as to any of the Premises in any manner permitted by
the laws of the State of Texas or of any other state in which any
part of the Premises is situated, and any foreclosure suit may be
brought by Trustee or by Lender. In the event a foreclosure
hereunder shall be commenced by Trustee, or Trustee's substitute
or successor, Lender may at any time before the sale of the
Premises direct Trustee to abandon the sale, and may then
institute suit for the collection of the Note and other
Indebtedness, and for the foreclosure of this Deed of Trust. It is
agreed that if Lender should institute a suit for the collection
of the Note or any other Indebtedness and for the foreclosure of
this Deed of Trust, Lender may at any time before the entry of a
final judgment in said suit dismiss the same, and require Trustee,
Trustee's substitute or successor, to sell the Premises in
accordance with the provisions of this Deed of Trust.
16. Upon such sale, Trustee shall make, execute, and after due payment
is made, deliver to the purchaser or purchasers a deed or deeds
for the Premises or part thereof sold and shall apply the proceeds
of the sale, at the election of Lender first, to all of the
expenses of such sale including the reasonable expenses of this
trust or the Trustee and the fees and costs of any attorneys for
this trust, environmental audits, the Trustee or Lender, all of
which shall accrue and become due from and after any Event of
Default, together with any sums which Trustee or Lender shall have
paid for procuring any abstract, certificate or report of title to
the Premises and, second, to principal, interest and any other
Indebtedness and all other sums or amounts due under the Note or
agreed or provided to be paid by Borrower herein or in any other
Loan Documents, all in such order as Lender may determine. The
remainder of such proceeds, if any, shall be paid to Borrower or
Borrower's successors or assigns, as their rights may appear.
17. In the event of such a sale of the Premises or any part thereof
and the execution of a deed or deeds therefor under these trusts,
any recital therein of the occurrence of an Event of Default or of
the giving or recording of any notice or demand by Trustee or
Lender regarding such sale shall be conclusive proof thereof, and
the receipt of the purchase money recited therein shall fully
discharge the purchaser from any obligation for the proper
application of the proceeds of sale in accordance with these
trusts.
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18. Following the occurrence of an Event of Default, unless the same
has been specifically waived in writing, Borrower shall forthwith
upon demand of Trustee or Lender surrender to Lender possession of
the Premises, and Lender shall be entitled to take actual
possession of the Premises or any part thereof personally or by
its agents or attorneys, and Lender in its discretion may (to the
extent permitted under applicable law), with or without force and
with or without process of law, enter upon and take and maintain
possession of all or any part of the Premises together with all
documents, books, records, papers and accounts of the Borrower or
the then owner of the Premises relating thereto, and may exclude
Borrower, its agents or assigns wholly therefrom, and may in the
name of the Borrower, or in its own name as Lender and under the
powers herein granted:
(a) hold, operate, maintain, repair, rebuild, replace, alter,
improve, manage or control the Premises as it deems
judicious, insure and reinsure the same and any risks
related to Lender's possession, operation and management
thereof and receive all Rents, either personally or by its
agents, and with full power to use such measures, legal or
equitable, as in its discretion it deems proper or
necessary to enforce the payment or security of the Rents,
including actions for the recovery of Rent, actions in
forcible detainer and actions in distress for Rents, hereby
granting full power and authority to exercise each and
every of the rights, privileges and powers herein granted
at any and all times hereafter, without notice to Borrower;
and
(b) conduct leasing activity pursuant to the provisions of the
Assignment of Leases.
Neither Trustee nor Lender shall be obligated to perform or
discharge, nor does either hereby undertake to perform or
discharge, any obligation, duty or liability under any Lease.
Except to the extent that the same is caused solely by Lender's
gross negligence or willful misconduct, should Trustee or Lender
incur any liability, loss or damage under any Leases, or under or
by reason of the Assignment of Leases, or in the defense of any
claims or demands whatsoever which may be asserted against Lender
or Trustee by reason of any alleged obligations or undertakings on
its part to perform or discharge any of the terms, covenants or
agreements in any Lease, the amount thereof, including costs,
expenses and reasonable attorneys' fees and costs, including
reasonable attorneys' fees and costs on appeal, shall be added to
the Indebtedness and secured hereby, WHETHER OR NOT SUCH
LIABILITY, LOSS OR DAMAGE ARISES OR ALLEGEDLY ARISES FROM OR IN
CONNECTION WITH ANY ACTS OF NEGLIGENCE OF LENDER OR UNDER ANY
THEORY OF STRICT LIABILITY.
19. Upon the occurrence of an Event of Default, Trustee and Lender in
the exercise of the rights and powers conferred upon them shall
have the full power to use and apply the Rents, less costs and
expenses of collection to the payment of or on account of the
items listed in (a) - (c) below, at the election of Lender and in
such order as Lender may determine as follows:
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(a) to the payment of (i) the expenses of operating and
maintaining the Premises, including, but not limited to the
cost of management, leasing (which shall include reasonable
compensation to Trustee, Lender and their respective agent
or agents if management and/or leasing is delegated to an
agent or agents), repairing, rebuilding, replacing,
altering and improving the Premises, (ii) premiums on
insurance as hereinabove authorized, (iii) taxes and
special assessments now due or which may hereafter become
due on the Premises, and (iv) expenses of placing the
Premises in such condition as will, in the sole judgment of
Lender, make it readily rentable;
(b) to the payment of any principal, interest or any other
Indebtedness secured hereby or any deficiency which may
result from any foreclosure sale;
(c) to the payment of established claims for damages, if any,
reasonable attorneys' fees and costs and reasonable
attorneys' fees and costs on appeal.
The manner of the application of Rents, the reasonableness of the
costs and charges to which such Rents are applied and the item or
items which shall be credited thereby shall be within the sole and
unlimited discretion of Lender. To the extent that the costs and
expenses in (a) and (c) above exceed the amounts collected, the
excess shall be added to the Indebtedness and secured hereby.
20. Upon the occurrence of any Event of Default, unless the same has
been specifically waived in writing, Lender may apply to any court
having jurisdiction for the appointment of a receiver of the
Premises. Such appointment may be made either before or after
sale, without notice, without regard to the solvency or insolvency
of Borrower at the time of application for such receiver and
without regard to the then value of the Premises or the adequacy
of Lender's security. Lender may be appointed as such receiver.
The receiver shall have power to collect the Rents during the
pendency of any foreclosure proceedings and, in case of a sale,
during the full statutory period of redemption, if any, as well as
during any further times when Borrower, except for the
intervention of such receiver, would be entitled to collect such
Rents. In addition, the receiver shall have all other powers which
shall be necessary or are usual in such cases for the protection,
possession, control, management and operation of the Premises
during the whole of said period. The court from time to time may
authorize the receiver to apply the net income in its possession
at Lender's election and in such order as Lender may determine in
payment in full or in part of those items listed in paragraph 19.
21. (a) Borrower agrees that all reasonable costs, charges and
expenses, including but not limited to, reasonable
attorneys' fees and costs, incurred or expended by Trustee
or Lender arising out of or in connection with any action,
proceeding or hearing, legal, equitable or quasi-legal,
including the preparation therefor and any appeal
therefrom, in any way affecting or pertaining to the Loan
Documents, the Environmental Indemnity, or the Premises,
shall be promptly paid by Borrower. All such sums not
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promptly paid by Borrower shall be added to the
Indebtedness secured hereby and shall bear interest at the
Default Rate from the date of such advance and shall be due
and payable on demand.
(b) Borrower hereby waives any notice of default, demand for
payment and notice of intent to accelerate the maturity of
all or any portion of the Indebtedness secured hereby,
except as may be otherwise expressly herein provided.
Borrower hereby agrees that upon the occurrence of an Event
of Default and the acceleration of the principal sum
secured hereby pursuant to this Deed of Trust, to the full
extent that such rights can be lawfully waived, Borrower
hereby waives and agrees not to insist upon, plead, or in
any manner take advantage of, any notice of acceleration,
any stay, extension, exemption, homestead, marshaling or
moratorium law or any law providing for the valuation or
appraisement of all or any part of the Premises prior to
any sale or sales thereof under any provision of this Deed
of Trust or before or after any decree, judgment or order
of any court or confirmation thereof, or claim or exercise
any right to redeem all or any part of the Premises so sold
and hereby expressly waives to the full extent permitted by
applicable law on behalf of itself and each and every
person or entity acquiring any right, title or interest in
or to all or any part of the Premises, all benefit and
advantage of any such laws which would otherwise be
available to Borrower or any such person or entity, and
agrees that neither Borrower nor any such person or entity
will invoke or utilize any such law to otherwise hinder,
delay or impede the exercise of any remedy granted or
delegated to Lender herein but will permit the exercise of
such remedy as though any such laws had not been enacted.
Borrower hereby further expressly waives to the full extent
permitted by applicable law on behalf of itself and each
and every person or entity acquiring any right, title or
interest in or to all or any part of the Premises any and
all rights of redemption from any sale or any order or
decree of foreclosure obtained pursuant to provisions of
this Deed of Trust.
22. As a source of future payment of the Indebtedness, Borrower hereby
assigns to Lender directly and absolutely, and not merely
collaterally, the interest of Borrower as lessor under the Leases
of the Premises and the Rents payable under any Lease and/or with
respect to the use of the Premises, or portion thereof, including
any oil, gas or mineral lease, or any installments of money
payable pursuant to any agreement or any sale of the Premises or
any part thereof, subject only to a license, if any, granted by
Lender to Borrower with respect thereto prior to the occurrence of
an Event of Default, as set forth in the Assignment of Leases and
Rents. Borrower has executed and delivered the Assignment of
Leases which grants to Lender specific rights and remedies in
respect of said Leases and governs the collection of Rents
thereunder and from the use of the Premises, and such rights and
remedies so granted shall be cumulative of those granted herein.
The collection of such Rents and the application thereof as
aforesaid shall not cure or waive any Event of Default or notice
of default hereunder or invalidate any act done pursuant to such
notice, except to the extent any such Event of
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Default is fully cured. Failure or discontinuance of Lender at any
time, or from time to time, to collect any such moneys shall not
impair in any manner the subsequent enforcement by Lender of the
right, power and authority herein conferred on Lender. Nothing
contained herein, including the exercise of any right, power or
authority herein granted to Lender, shall be, or be construed to
be, an affirmation by Lender of any tenancy, Lease or option, or
an assumption of liability under, or the subordination of the lien
or charge of this Deed of Trust to any such tenancy, Lease or
option. Borrower hereby agrees that, in the event Lender exercises
its rights as provided for in this paragraph or in the Assignment
of Leases, Borrower waives any right to compensation for the use
of Borrower's furniture, furnishings or equipment in the Premises
for the period such assignment of rents or receivership is in
effect, it being understood that the Rents derived from the use of
any such items shall be applied to Borrower's obligations
hereunder as above provided.
Notwithstanding the direct and absolute assignment of the Rents,
there shall be no pro tanto reduction of any portion of the
Indebtedness except with respect to Rents actually received by
Lender and applied by Lender toward payment of the Indebtedness.
23. All rights and remedies granted to Trustee or Lender in the Loan
Documents shall be in addition to and not in limitation of any
rights and remedies to which it is entitled in equity, at law or
by statute, and the invalidity of any right or remedy herein
provided by reason of its conflict with applicable law or statute
shall not affect any other valid right or remedy afforded to
Trustee or Lender. No waiver of any default or Event of Default
under any of the Loan Documents shall at any time thereafter be
held to be a waiver of any rights of the Trustee or Lender
hereunder, nor shall any waiver of a prior Event of Default or
default operate to waive any subsequent Event of Default or
default. All remedies provided for in the Loan Documents are
cumulative and may, at the election of Lender, be exercised
alternatively, successively or concurrently. No act of Trustee or
Lender shall be construed as an election to proceed under any one
provision herein to the exclusion of any other provision or to
proceed against one portion of the Premises to the exclusion of
any other portion. Time is of the essence under this Deed of Trust
and the Loan Documents.
24. By accepting payment of any sum secured hereby after its due date,
Lender does not waive its right either to require prompt payment
when due of all other sums or installments so secured or to
declare a default for failure to pay such other sums or
installments.
25. The limitation of recourse liability provisions of paragraph 9 of
the Note are fully incorporated herein by reference as if the same
were specifically stated here.
26. In the event one or more provisions of the Loan Documents shall be
held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any
other provision hereof, and the Loan
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Documents shall be construed as if any such provision had never
been contained herein.
27. If the payment of the Indebtedness secured hereby or of any part
thereof shall be extended or varied, or if any part of the
security be released, all persons now or at any time hereafter
liable therefor, or interested in said Premises, shall be held to
assent to such extension, variation or release, and their
liability and the lien and all provisions hereof shall continue in
full force, the right of recourse against all such persons being
expressly reserved by Lender notwithstanding such variation or
release.
28. Upon payment in full of the principal sum, interest and other
Indebtedness secured by the Loan Documents, these presents shall
be null and void, and Trustee shall release this Deed of Trust and
the lien hereof by proper instrument executed in recordable form.
29. (a) Borrower hereby grants to Lender and its respective agents,
attorneys, employees, consultants, contractors and assigns
an irrevocable license and authorization to enter upon and
inspect the Premises and all facilities located thereon at
reasonable times, subject to the inspection rights
provisions afforded to Borrower under the Leases. Lender
shall make reasonable efforts to ensure that the operations
of the tenants are not disrupted.
(b) In connection with any sale or conveyance of this Deed of
Trust, Borrower grants to Lender and its respective agents,
attorneys, employees, consultants, contractors and assigns
an irrevocable license and authorization to conduct, at
Lender's expense, a Phase I environmental audit of the
Premises, subject to the inspection rights provisions
afforded to Borrower under the Leases.
(c) In the event there has been an Event of Default or in the
event Lender has formed a reasonable belief, based on its
inspection of the Premises or other factors known to it,
that Hazardous Materials may be present on the Premises,
then Borrower grants to Lender and its respective agents,
attorneys, employees, consultants, contractors and assigns
an irrevocable license and authorization to conduct, at
Borrower's expense, using ATC Associates, Inc. or the firm
of Borrower's choice, subject to Lender's reasonable
approval, environmental tests of the Premises, including
without limitation, a Phase I environmental audit,
subsurface testing, soil and ground water testing, and
other tests which may physically invade the Premises or
facilities (the "TESTS"). The scope of the Tests shall be
such as Lender, in its sole discretion, determines is
necessary to (i) investigate the condition of the Premises,
(ii) protect the security interests created under this Deed
of Trust, or (iii) determine compliance with Environmental
Laws, the provisions of the Loan Documents and the
Environmental Indemnity and other matters relating thereto.
Lender shall
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make reasonable efforts to ensure that the operations of
the tenants are not disrupted.
(d) Provided no Event of Default has occurred, Lender will
provide Borrower with reasonable notice of Lender's intent
to enter, inspect and conduct the Tests provided for in
this paragraph. In addition, Lender shall conduct such
inspections and Tests during normal business hours and use
reasonable efforts to minimize disruption of the lessees'
business operations. The foregoing licenses and
authorizations are intended to be a means of protection of
Lender's security interest in the Premises and not as
participation in the management of the Premises.
30. Within 15 days after any written request by any party to this Deed
of Trust, the requested party shall certify, by a written
statement duly acknowledged, the amount of principal, interest and
other Indebtedness then owing on the Note, the terms of payment,
Maturity Date and the date to which interest has been paid.
Borrower shall further certify whether any defaults, offsets or
defenses exist against the Indebtedness secured hereby. Borrower
shall also furnish to Lender, within 30 days of its request
therefor, tenant estoppel letters from such tenants of the
Premises as Lender may reasonably require; which Lender shall not
request more than one (1) time per annum.
31. (a) Borrower shall furnish to Lender within 90 days after the
end of each fiscal year of Borrower, a detailed and
analytical financial report prepared in accordance with
generally accepted accounting principles consistently
applied, certified in a manner and otherwise in form
acceptable to Lender covering the full and complete
operation of the Premises, including without limitation:
(i) income and expense statements, and (ii) a report of the
leasing status of the Premises as of the end of such
period, identifying the lessee, square footage leased,
rental amount, base rental increases, rental concessions
and/or rental deferments, if any, and commencement and
expiration dates under each Lease of the Premises and a
listing of sales volumes attained by lessees of the
Premises under percentage leases for the immediately
preceding year, and (iii) within 15 days after written
request by Lender, an aged accounts receivable report, an
annual budget, and sales volumes for lessees under
percentage leases. Such reports shall be prepared by an
accountant who may be an employee of Borrower, or of an
affiliate of Borrower, acceptable to Lender. In addition to
the reports referred to herein, Borrower shall promptly
supply any additional information or records relating to
the Premises or its operation as Lender may from time to
time reasonably request.
(b) Within 15 days after any written request by Lender,
Borrower shall furnish to Lender, for the most recently
completed fiscal quarter of Borrower, the reports specified
in (i) and (ii) above.
(c) Within 15 days after any written request by Lender,
Borrower shall furnish to Lender for the most recently
completed fiscal year, a combined or
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consolidated federal income tax return filed by IWRRET.
Said information shall be subject to Lender's review.
32. Each notice, consent, request, report or other communication under
this Deed of Trust or any other Loan Document (each, a "NOTICE"),
which any party hereto may desire or be required to give to the
other shall be deemed to be an adequate and sufficient notice if
given in writing and service is made by either (i) registered or
certified mail, postage prepaid, in which case notice shall be
deemed to have been received three (3) business days following
deposit to U.S. mail; or (ii) nationally recognized overnight air
courier, next day delivery, prepaid, in which case such notice
shall be deemed to have been received one (1) business day
following delivery to such nationally recognized overnight air
courier; provided that service of a notice required by Tex.
Property Code Section 51.002 shall be considered complete when the
requirements of that statute are met. All Notices shall be
addressed to Borrower at its address given on the first page
hereof, or to Lender at c/o Principal Real Estate Investors, LLC,
801 Grand Avenue, Des Moines, Iowa 50392-1450, Attn: Commercial
Real Estate Servicing, Loan No. 753821, or to such other place as
any party may by written notice to the other parties designate as
a place for service of notice. Borrower shall not be permitted to
designate more than one place for service of Notice concurrently.
33. Lender, from time to time, may substitute another Trustee in place
of the Trustee named herein, to execute the trusts hereby created;
and upon such appointment, and without conveyance to the successor
trustee, the successor trustee shall be vested with all the title,
interest, powers, duties and trusts in the Premises hereby vested
in or conferred upon Trustee herein named. Each such appointment
and substitution shall be made by written instrument executed by
the Lender containing reference to this Deed of Trust sufficient
to identify it, which instrument need not be recorded but when
recorded in the office of the County Recorder of the county or
counties in which the Premises is situated, shall be conclusive
proof of proper appointment of the successor trustee. The recital
or statement, in any instrument executed by Trustee in pursuance
of any of said trusts, of the due authorization of any agent of
the Trustee executing the same shall for all purposes be
conclusive proof of such authorization.
34. Trustee at any time, at Trustee's option, may commence and
maintain suit in any court of competent jurisdiction and obtain
the aid and direction of said court in the execution by it of the
trusts or any of them, herein expressed or contained, and, in such
suit, may obtain the orders or decrees, interlocutory or final of
said court directing the execution of said trusts, and confirming
and approving Trustee's acts, or any of them, or any sales or
conveyances made by Trustee, and adjudging the validity thereof,
and directing that the purchasers of the property sold and
conveyed be let into immediate possession thereof, and providing
for orders of court or other process requiring the Sheriff of the
county in which said property is situated to place and maintain
said purchasers in quiet and peaceable possession of the property
so purchased by them, and the whole thereof.
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35. Borrower has had the opportunity to fully negotiate the terms
hereof and modify the draftsmanship of the Loan Documents and the
Environmental Indemnity. Therefore, the terms of the Loan
Documents or the Environmental Indemnity shall be construed and
interpreted without any presumption, inference, or rule requiring
construction or interpretation of any provision of the Loan
Documents or the Environmental Indemnity against the interest of
the party causing the Loan Documents and the Environmental
Indemnity or any portion of it to be drafted. Borrower is entering
into the Loan Documents and the Environmental Indemnity freely and
voluntarily without any duress, economic or otherwise.
36. Borrower, forthwith upon request, at any and all times hereafter,
at the expense of Borrower, will cause to be made, executed,
acknowledged and delivered to Trustee, any and every deed or
assurance in law which Trustee or counsel of Trustee shall
reasonably advise or require for the more sure, effectual and
satisfactory granting and confirming of said Premises unto
Trustee.
37. Trustee shall not be liable or responsible for its acts or
omissions hereunder, INCLUDING TRUSTEE'S NEGLIGENCE, except for
Trustee's own gross negligence or willful default, or be liable or
responsible for any acts or omissions of any agent, attorneys or
employee by him employed hereunder, if selected with reasonable
care.
38. Trustee accepts this trust when this Deed of Trust executed and
acknowledged is made a public record as provided by law. Trustee
is not obligated to notify any party hereto of pending sale under
any other deed of trust or of any action or proceeding in which
Borrower, Lender, or Trustee shall be a party unless brought by
Trustee.
39. This Deed of Trust and all provisions hereof shall inure to the
benefit of the heirs, successors and assigns of Lender and shall
bind the heirs and permitted successors and assigns of Borrower.
40. This Deed of Trust shall be governed by, and construed in
accordance with, the laws of the state of Texas, without regard to
its conflicts of law principles.
41. As used herein, the term "DEFAULT RATE" means a rate equal to the
lesser of (i) four percent (4%) per annum above the then
applicable interest rate payable under the Note or (ii) the
maximum rate allowed by applicable law.
42. BORROWER AND LENDER EACH KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVE, TO THE EXTENT PERMITTED BY LAW, TRIAL BY JURY IN ANY
ACTIONS BROUGHT BY BORROWER, TRUSTEE OR LENDER IN CONNECTION WITH
THIS DEED OF TRUST, ANY OF THE LOAN DOCUMENTS, THE INDEBTEDNESS
SECURED HEREBY, OR ANY OTHER STATEMENTS OR ACTIONS OF LENDER.
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43. This Deed of Trust and the Indebtedness secured hereby is for the
sole purpose of conducting or acquiring a lawful business,
professional or commercial activity or for the acquisition or
management of real or personal property as a commercial
investment, and all proceeds of such Indebtedness shall be used
for said business or commercial investment purpose. Such proceeds
will not be used for the purchase of any security within the
meaning of the Securities Exchange Act of 1934, as amended, or any
regulation issued pursuant thereto, including without limitation,
Regulations U, T and X of the Board of Governors of the Federal
Reserve System. This is not a purchase money deed of trust where a
seller is providing financing to a buyer for the payment of all or
any portion of the purchase price and the Premises secured hereby
is not a residence or homestead or used for mining, grazing,
agriculture, timber or farming purposes.
44. Unless Lender shall otherwise direct in writing, Borrower shall
appear in and defend all actions or proceedings purporting to
affect the security hereunder, or any right or power of the
Lender, excluding any Federal regulatory proceedings against
Lender that are not instituted because of any act or omission by
Borrower, any Interest Owner or which result from the Premises.
The Lender shall have the right to appear in such actions or
proceedings. Borrower shall save Lender harmless from all
reasonable costs and expenses, including but not limited to,
reasonable attorneys' fees and costs and costs of a title search,
continuation of abstract and preparation of survey incurred by
reason of any action, suit, proceeding, hearing, motion or
application before any court or administrative body in and to
which Lender may be or become a party by reason hereof, excluding
any Federal regulatory proceedings against Lender that are not
instituted because of any act or omission by Borrower, any
Interest Owner or which result from the Premises. Such proceedings
shall include but not be limited to condemnation, bankruptcy,
probate and administration proceedings, as well as any other
action, suit, proceeding, right, motion or application wherein
proof of claim is by law required to be filed or in which it
becomes necessary to defend or uphold the terms of this Deed of
Trust or the Loan Documents or otherwise purporting to affect the
security hereof or the rights or powers of Lender. All money paid
or expended by Lender in that regard, together with interest
thereon from date of such payment at the Default Rate shall be
additional Indebtedness secured hereby and shall be immediately
due and payable by Borrower without notice.
45. Upon the occurrence of an Event of Default, unless the same has
been specifically waived in writing, all Rents collected or
received by Borrower shall be accepted and held for Lender in
trust and shall not be commingled with the funds and property of
Borrower, but shall be promptly paid over to Lender.
46. If more than one, all obligations and agreements of Borrower and
of any general partner of Borrower are joint and several.
47. This Deed of Trust may be executed in counterparts, each of which
shall be deemed an original; and such counterparts when taken
together shall constitute but one agreement.
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48. This Deed of Trust shall be effective as a financing statement
filed as a fixture filing with respect to all fixtures included
within the Property and is to be filed for record in the real
estate records in the office of the county clerk where the Land
and Improvements (including said fixtures) are situated.
49. Upon receipt by Lender of the following documentation in form and
substance satisfactory to Lender, Lender will execute and deliver
to Borrower a release of the lien (the "Partial Release") of this
Deed of Trust with respect to the portion of the Land comprised of
an approximate 44,100 square foot tract located at the southeast
corner of the Land (the "PT Outparcel") currently leased to PT's
Gentlemen's Club:
(a) a copy of the recorded subdivision replat of the Land
subdividing the PT Outparcel from the remainder of the Land
(the "Remainder Parcel"), which subdivision replat shall be
in form and substance satisfactory to Lender; at the
request of Borrower, Lender shall join in the execution of
such replat;
(b) an updated as-built survey of the Remainder Parcel
complying with the requirements for the survey of the
Premises delivered to Lender in connection with the initial
closing of the Loan which must reflect the Remainder Parcel
as approximately 26 acres without modification to the
original access to public rights-of-way;
(c) an endorsement to Lender's mortgagee policy of title
insurance pursuant to Rule P9b(3) of the Texas Title
Insurance Regulations with respect to the Partial Release;
(d) evidence that the Remainder Parcel and the Improvements
located thereon constitute a separate lot for purpose of
complying with the requirements of the applicable sections
of Texas Local Government Code relating to subdivision
platting and meet all requirements with respect to
applicable building ordinances, zoning laws, parking
requirements, private building restrictions and all other
applicable rules and regulations of all governmental bodies
or private authorities having jurisdiction thereof;
(e) evidence that the buildings located on the Remainder Parcel
are independent, self-sufficient structural and functional
structures;
(f) evidence that the Leases shall continue separate and
independent from any leases on the PT Outparcel, that no
reduction in the rental under the Leases has occurred and
lessees under the Leases shall have no defenses to the
Leases or right of offset against the rentals payable
thereunder by reason of any default or act of lessor under
the leases on the PT Outparcel;
(g) evidence that the proposed use of the PT Outparcel
construed in the broadest sense will not violate the
provisions of any reciprocal easement
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agreement or operating agreement pertaining to all or any
part of the Remainder Parcel; and
(h) evidence in the form of an assessment statement issued by
the taxing authorities that the Remainder Parcel and the
Improvements located thereon are separately assessed for
real estate taxing purposes; if such assessment statement
is not available at the time of the Partial Release, such
assessment statement shall be delivered to Lender not later
than June 30 of the following calendar year.
Lender shall have the right to assess a handling fee in the amount of
$7,500 for the Partial Release. In addition, Borrower shall pay all
outside counsel fees and costs, other applicable professional's fees and
costs, taxes, recording fees and the like, and any other fees and costs
incurred by Lender in connection with the foregoing.
IN WITNESS WHEREOF, Borrower has caused this Deed of Trust to be duly
executed and delivered as of the date first above written.
(REMAINDER OF PAGE INTENTIONALLY BLANK
SIGNATURES ON NEXT PAGE)
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SIGNATURE PAGE OF BORROWER TO
DEED OF TRUST, SECURITY AGREEMENT AND ASSIGNMENT OF RENTS
INLAND WESTERN SAN ANTONIO LIMITED
PARTNERSHIP, an Illinois limited partnership
By: INLAND WESTERN SAN ANTONIO GP, L.L.C.,
a Delaware limited liability company, its General
Partner
By: INLAND WESTERN RETAIL REAL
ESTATE TRUST, INC., a Maryland
corporation, its Sole Member
By: /s/ Valerie Medina
-------------------------------------
Name: Valerie Medina
------------------------------
Title: Asst. Secretary
------------------------------
STATE OF ILLINOIS )
)
COUNTY OF COOK )
This instrument was acknowledged before me on February 3rd, 2004 by
Valerie Medina, Asst. Secretary of Inland Western Retail Real Estate Trust,
Inc., a Maryland corporation, on behalf of said corporation, in its capacity as
sole member of Inland Western San Antonio GP, L.L.C., a Delaware limited
liability company, on behalf of said limited liability company, in its capacity
as General Partner of Inland Western San Antonio Limited Partnership, an
Illinois limited partnership, on behalf of said limited partnership.
/s/ Elizabeth Ann Irving
---------------------------------------
Notary Public, State of Illinois
My Commission Expires: ---------------------------------------
11-14-2004 Typed or Printed Name
- ------------
"OFFICIAL SEAL"
ELIZABETH ANN IRVING
NOTARY PUBLIC STATE OF ILLINOIS
My Commission Expires 11/14/2004
<Page>
EXHIBIT A
(Legal Description)
TRACT 1 - FEE ESTATE:
A 26.246 acre tract of land being that same tract described in conveyance to
DDRA Community Centers Four L.P. in Volume 6989, Pages 1554-1563 comprised of
the remaining 1.107 acre portion of Lot 22, a 20.95 acre portion of Lot 23,
N.C.B. 12050, Joe J. Barshop Subdivision as recorded in Volume 5700, Pages
150-152, the remaining 1.685 acres of Lot 26 and the remaining 0.9830 of an acre
of Lot 27, N.C.B. 12050, Joe J. Barshop Subdivision as recorded in Volume 6800,
Page 250, and all of Lot 33, La Plaza Del Norte Addition as recorded in Volume
9542, Page 30 of the Deed and Plat Records of Bexar County, Texas. Said 26.246
acres being in N.C.B. 12050 of the City of San Antonio, Bexar County, Texas more
particularly described as follows:
BEGINNING: At a found 1/2" iron rod in the north right-of-way line of
Interstate Highway Loop 410 a 300-foot Right-of-Way at the
southwest corner of said Lot 22 of said Joe J. Barshop Subdivision
and the southeast corner of Lot 21 of San Pedro/Loop 410
Subdivision as recorded in Volume 4400, Pages 187-190 of the Plat
Records of Bexar County, Texas for the southwest corner of this
tract:
THENCE: N 00 DEG. 00'00" E, along the west line of said Barshop
Subdivision and the east line of said San Pedro/Loop 410
Subdivision a distance of 1556.13 feet to a found 1/2 "iron rod
with an MBC cap in the southeasterly right-of-way line of Isom
Road;
THENCE: N 42 DEG. 33' 39" E, along the southeasterly right-of-way line of
Isom Road, a distance of 422.73 feet to a found "+" in concrete;
THENCE: N 42 DEG. 49' 52" E, continuing along said right-of-way, a
distance of 41.92 feet to a found 1/2" iron rod with yellow cap
marked "Pape Dawson" at the west corner of a City of San Antonio
Drainage right-of-way, recorded in Volume 4910, Page 2024;
THENCE: Departing said right-of-way line S 44 DEG. 31' 23" E, a distance
of 20.02 feet to a found 1/2" iron rod with yellow cap marked
"Pape Dawson" at the south corner of said drainage right-of-way,
on a southwest line of a 3.187 acre tract, the remaining north
portion of the said Lot 23;
THENCE: S 47 DEG. 26' 21" E, along and with the southwest line of said
3.187 acre tract a distance of 485.96 feet to a found 1/2" iron
rod with yellow cap marked "Pape Dawson" in the west line of
Crownhill Park Subdivision, Unit 6, Volume 4700, Page 62;
THENCE: S 00 DEG. 03' 59" W, along the east line of Lot 23 and said west
line of Crownhill Park Subdivision and the west line of Lot 28 The
Pavilions Subdivision, Volume 9521, Page 221, a distance of
1565.67 feet to a found 1/2" iron rod with an MBC cap in the north
right-of-way line of Interstate Highway Loop 410 at the southeast
corner of Lot 27 of said Barshop Subdivision and the southwest
corner of said Lot 28;
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THENCE: N 89 DEG. 07' 50" W, along the north right-of-way Loop 410, and
the south line of the remaining portion of Lot 27, a distance of
199.21 feet to the southeast corner of a 12-foot dedication shown
on plat recorded in Volume 9542, Pages 30 of the Deed and Plat
Records of Bexar County, Texas;
THENCE: N 00 DEG. 00'00" E, along the west line of remaining portion of
Lot 27, and the east line of said 12-foot dedication a distance of
12.00 feet;
THENCE: N 89 DEG. 07' 50" W, along the north line of said 12-foot
dedication and the south line of said Lot 33, a distance of 50.01
feet to the southwest corner of Lot 33 and the east line of the
remainder of said Lot 26;
THENCE: S 00 DEG. 00'00" W, along the west line of said 12-foot dedication
and the east line of the remaining portion of Lot 26, a distance
of 12.00 feet;
THENCE: N 89 DEG. 07' 50" W, along the north right-of-way Loop 410, a
distance of 215.05 feet to a found 1/2" iron rod at the southwest
corner of Lot 26 and the southeast corner of Lot 24, Texaco
Subdivision as recorded in Volume 4960, Page 122;
THENCE: N 00 DEG. 01' 41" W, along the east line of said Lot 24 and along
the west line of Lot 26, a distance of 218.41 feet to a found "+"
in concrete at the northeast corner of said Lot 24;
THENCE: N 89 DEG. 50' 48" W, along the north line of said Lot 24, a
distance of 200.01 feet to a found 1/2" iron rod with yellow cap
marked "Pape Dawson" in asphalt at the northwest corner of Lot 24;
THENCE: S 00 DEG. 01' 40" E, along the west line of Lot 24, a distance
of 215.91 feet to a found 1/2" iron rod in the north right-of-way
line of Interstate Highway Loop 410;
THENCE: N 89 DEG. 07' 50" W, along said right-of-way line, a distance of
20.37 feet to the POINT OF BEGINNING and containing 26.246 acres
of land in the City of San Antonio, Bexar County, Texas. Said
tract being described in accordance with a survey prepared by
Pape-Dawson Consulting Engineers Inc.
TRACT 2 - EASEMENT ESTATE:
Appurtenant non-exclusive easement for the benefit of Tract 1 as created in
Easement Agreement recorded in Volume 5335, Page 0709, as amended by (i)
Amendment to Easement Agreement recorded in Volume 6256, Page 1984, (ii) Second
Amendment to Easement Agreement and Estoppel Certificate recorded in Volume
6665, Page 0892 and (iii) Third Amendment to Easement Agreement and Estoppel
Certificate recorded in Volume 7445, Page 0724, all in the Real Property Records
of Bexar County, Texas, over, across and upon the real property more
particularly described as follows:
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A 0.190 acre, or 8,273 square feet, tract of land out of (i) Lot 21, N.C.B.
12050 of the San Pedro Loop Subdivision recorded in Volume 4400, Pages 187-190
and (ii) a replat of a portion of the said Lot 21 in the San Pedro/Loop 410
Subdivision recorded in Volume 9532, Pages 166-167 of the Deed and Plat Records
of Bexar County, Texas, consisting of a 26-foot easement and a 25.50-foot
drainage easement, being a joint driveway easement agreement as shown on exhibit
C-1 of an Amendment to Easement Agreement as recorded in Volume 6256, Page
1984-1998 and further described in Volume 6665, Page 892-909 of the Real
Property Records of Bexar County, Texas. Said 0.190 acre tract being more
particularly described as follows:
COMMENCING: At a found 1/2" iron rod at the southwest corner of the Joe J.
Barshop Subdivision as recorded in Volume 5700, Pages 150, and the
southeast corner of the said remainder of Lot 21 in the San Pedro Loop
Subdivision, the southwest corner of a 526 corner of a 526 square foot
tract of land described in a document titled notice of Lis Pendens
recorded in Volume 9558, Pages 2082-2092 of the Official Public
Records of Real Property of Bexar County, Texas and being on the north
right-of-way line of Interstate Highway Loop 410, a 300-foot
right-of-way,
THENCE: N 89 DEG. 07' 50" W, along said right-of-way, a distance of 20.97 feet
to the POINT OF BEGINNING;
THENCE: N 89 DEG. 07' 50" W, continuing along said right-of-way a distance of
31.50 feet to a point;
THENCE: Generally along a curb and the west side of a driveway:
Along a non-tangent curve with a central angle of 28 DEG. 45' 17", a
radius of 30.00 feet, a chord that bears N 14 DEG. 22' 33" E, 14.90
feet, a total arc length of 15.06 feet to the point of tangency,
NORTH, continuing with said curb and drive a distance of 185.47 feet
to the beginning of a curve to the right;
THENCE: Along the arc of the said curve with a central angle of 90 DEG. 00'
00" a radius of 40.00 feet, a chord that bears N 45 DEG. 00' 00" E,
56.57 feet, a total arc length of 62.83 feet to a point;
THENCE: EAST, 8.76 feet to a point in the east line of the said San Pedro Loop
Subdivision and the west line of the said Joe J. Barshop Subdivision;
THENCE: SOUTH, along the east line of the said San Pedro Loop Subdivision a
distance of 26.77 feet to a point in a curve to the left, from which
the POINT OF COMMENCING bears SOUTH, 213.92 feet;
THENCE: Along the arc of the said curve, and the east side of a curb and
driveway with a central angle of 65 DEG. 40' 58", a radius of 20.00
feet, a chord that bears S 32 DEG. 50' 25" W, 21.69 feet, a total arc
length of 22.93 feet;
THENCE: Generally along a concrete curb:
SOUTH, a distance of 105.00 feet to the beginning of a curve to the
right;
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Along the arc of the said curve with a central angle of 19 DEG. 56'
56", a radius of 100.00 feet, a chord that bears S 09 DEG. 58' 27" W,
34.64 feet, a total arc length of 34.82 feet to a point of reverse
curve;
Along the arc of the said curve with a central angle of 19 DEG.56'
54", a radius of 100.00 feet, a chord that bears S 09 DEG. 58' 28" W,
34.64 feet, a total arc length of 34.82 feet to the point of tangency;
SOUTH, a distance of 12.35 feet to the beginning of a curve to the
left;
Along the arc of the said curve with a central angle of 19 DEG. 32' 06",
a radius of 30.00 feet, a chord that bears S 15 DEG.56' 57" E, 10.18 feet, a
total arc length of 10.23 feet to the POINT OF BEGINNING and containing 0.190
acres in the City of San Antonio, Bexar County, Texas. Said tract being
described in accordance with a survey prepared by Pape-Dawson Consulting
Engineers Inc.
TRACT 3 - EASEMENT ESTATE:
Appurtenant non-exclusive easement for the benefit of Tract 1 as created in
Mutual Cross Access Easement Agreement recorded in Volume 6821, Page 1457, as
amended by First Amendment to Mutual Cross Access Easement Agreement and
Estoppel Certificate recorded in Volume 7445, Page 0717, all in the Real
Property Records of Bexar County, Texas, over, across and upon the real property
more particularly described therein.
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EXHIBIT B
PERMITTED ENCUMBRANCES
1. BUILDING SETBACK LINE 25 FEET IN WIDTH ALONG THE ISOM ROAD PROPERTY
LINE(S), AS SHOWN ON THE PLAT(S) RECORDED IN VOLUME 5700, PAGE(S) 150-152
OF THE MAP AND PLAT RECORDS OF BEXAR COUNTY, TEXAS, AND AS SHOWN ON SURVEY
DATED JANUARY 6, 2004, PREPARED BY PATRICIA ANN MANTOOTH, REGISTERED
PROFESSIONAL LAND SURVEYOR NO. 4721. (TRACTS 1 AND 2)
2. BUILDING SETBACK LINE 50 FEET IN WIDTH ALONG A PORTION OF THE NORTHEASTERLY
PROPERTY LINE(S), AS SHOWN ON THE PLAT(S) RECORDED IN VOLUME 5700, PAGE(S)
150-152 OF THE MAP AND PLAT RECORDS OF BEXAR COUNTY, TEXAS, AND AS SHOWN ON
SURVEY DATED JANUARY 6, 2004, PREPARED BY PATRICIA ANN MANTOOTH, REGISTERED
PROFESSIONAL LAND SURVEYOR NO. 4721. (TRACT 2)
3. DEDICATED DRAINAGE R.O.W. TRAVERSING THE NORTH AND SOUTH PORTIONS OF
SUBJECT PROPERTY, AS SHOWN ON THE PLAT(S) RECORDED IN VOLUME 5700, PAGE(S)
150-152 OF THE MAP AND PLAT RECORDS OF BEXAR COUNTY, TEXAS, AND AS SHOWN ON
SURVEY DATED JANUARY 6, 2004, PREPARED BY PATRICIA ANN MANTOOTH, REGISTERED
PROFESSIONAL LAND SURVEYOR NO. 4721. (TRACTS 1 AND 2)
4. UTILITY EASEMENT 20 FEET IN WIDTH ALONG THE WEST PROPERTY LINE(S), AS SHOWN
BY THE PLAT(S) RECORDED IN VOLUME 5700, PAGE(S) 150-152 OF THE MAP AND PLAT
RECORDS OF BEXAR COUNTY, TEXAS, AND AS SHOWN ON SURVEY DATED JANUARY 6,
2004, PREPARED BY PATRICIA ANN MANTOOTH, REGISTERED PROFESSIONAL LAND
SURVEYOR NO. 4721. (TRACT 1)
5. UTILITY EASEMENT 16 FEET IN WIDTH ALONG A PORTION OF THE SOUTH PROPERTY
LINE(S), AS SHOWN BY THE PLAT(S) RECORDED IN VOLUME 5700, PAGE(S) 150-152
OF THE MAP AND PLAT RECORDS OF BEXAR COUNTY, TEXAS, AND AS SHOWN ON SURVEY
DATED JANUARY 6, 2004, PREPARED BY PATRICIA ANN MANTOOTH, REGISTERED
PROFESSIONAL LAND SURVEYOR NO. 4721. (TRACTS 1 AND 2)
6. BUILDING SETBACK LINE 25 FEET IN WIDTH ALONG THE SOUTH PROPERTY LINE(S), AS
SHOWN ON THE PLAT(S) RECORDED IN VOLUME 6800, PAGE(S) 250 OF THE MAP AND
PLAT RECORDS OF BEXAR COUNTY, TEXAS, AND AS SHOWN ON SURVEY DATED JANUARY
6, 2004, PREPARED BY PATRICIA ANN MANTOOTH, REGISTERED PROFESSIONAL LAND
SURVEYOR NO. 4721. (TRACT 1)
7. ROADWAY EASEMENT 50 FEET IN WIDTH TRAVERSING SUBJECT PROPERTY, AS SHOWN BY
THE PLAT(S) RECORDED IN VOLUME 6800, PAGE(S) 250 OF THE MAP AND PLAT
RECORDS OF BEXAR COUNTY, TEXAS, MODIFIED IN VOLUME 9542, PAGE 30 OF THE MAP
AND PLAT RECORDS OF BEXAR COUNTY, TEXAS, AND AS SHOWN ON SURVEY DATED
JANUARY 6, 2004, PREPARED BY PATRICIA ANN MANTOOTH, REGISTERED PROFESSIONAL
LAND SURVEYOR NO. 4721. (TRACT 1)
8. SANITARY SEWER EASEMENT 10 FEET IN WIDTH ALONG THE SOUTH PROPERTY LINE(S),
AS SHOWN BY THE PLAT(S) RECORDED IN VOLUME 6800, PAGE(S) 250 OF THE MAP AND
PLAT RECORDS OF BEXAR COUNTY, TEXAS, AND AS SHOWN ON SURVEY DATED JANUARY
6, 2004, PREPARED BY PATRICIA ANN MANTOOTH, REGISTERED PROFESSIONAL LAND
SURVEYOR NO. 4721. (TRACT 1)
9. DRAINAGE EASEMENT 20 FEET IN WIDTH TRAVERSING SUBJECT PROPERTY, AS SHOWN BY
THE PLAT(S) RECORDED IN VOLUME 6800, PAGE(S) 250 OF THE MAP AND PLAT
RECORDS OF BEXAR COUNTY, TEXAS,
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AND AS SHOWN ON SURVEY DATED JANUARY 6, 2004, PREPARED BY PATRICIA ANN
MANTOOTH, REGISTERED PROFESSIONAL LAND SURVEYOR NO. 4721. (TRACT 1)
10. EXISTING 16 FOOT UTILITY EASEMENT ALONG A PORTION OF THE SOUTH PROPERTY
LINE(S), AS SHOWN BY THE PLAT(S) RECORDED IN VOLUME 6800, PAGE(S) 250 OF
THE MAP AND PLAT RECORDS OF BEXAR COUNTY, TEXAS, AND AS SHOWN ON SURVEY
DATED JANUARY 6, 2004, PREPARED BY PATRICIA ANN MANTOOTH, REGISTERED
PROFESSIONAL LAND SURVEYOR NO. 4721. (TRACTS 1 AND 2)
11. THE TERMS, CONDITIONS AND STIPULATIONS SET OUT IN THAT CERTAIN SEWER LINE
EASEMENT AGREEMENT DATED JULY, 1990, RECORDED IN VOLUME 4919, PAGE(S) 1223
OF THE OFFICIAL PUBLIC RECORDS OF REAL PROPERTY OF BEXAR COUNTY, TEXAS.
(TRACT 1)
12. THE TERMS, CONDITIONS AND STIPULATIONS SET OUT IN THAT CERTAIN EASEMENT
AGREEMENT DATED MAY 11, 1992, RECORDED IN VOLUME 5335, PAGE(S) 709 OF THE
OFFICIAL PUBLIC RECORDS OF REAL PROPERTY OF BEXAR COUNTY, TEXAS, AMENDED IN
VOLUME 6256, PAGE 1984, VOLUME 6665, PAGE 892 AND VOLUME 7445, PAGE 724 OF
THE OFFICIAL PUBLIC RECORDS OF REAL PROPERTY OF BEXAR COUNTY, TEXAS.
(TRACTS 1 AND 2)
13. THE TERMS, CONDITIONS AND STIPULATIONS SET OUT IN THAT CERTAIN MUTUAL CROSS
ACCESS EASEMENT AGREEMENT DATED JUNE 27, 1996, RECORDED IN VOLUME 6821,
PAGE(S) 1457, AMENDED IN VOLUME 7445, PAGE 717 OF THE OFFICIAL PUBLIC
RECORDS OF REAL PROPERTY OF BEXAR COUNTY, TEXAS. (TRACTS 1 AND 3)
14. WATER PIPE OR LINE EASEMENT GRANTED TO THE CITY OF SAN ANTONIO, BY
INSTRUMENT DATED JUNE 27, 1960, RECORDED IN VOLUME 4477, PAGE 280 OF THE
DEED RECORDS OF BEXAR COUNTY, TEXAS, AND AS SHOWN ON SURVEY DATED JANUARY
6, 2004, PREPARED BY PATRICIA ANN MANTOOTH, REGISTERED PROFESSIONAL LAND
SURVEYOR NO. 4721. (TRACT 1)
15. SANITARY SEWER EASEMENT GRANTED TO THE CITY OF SAN ANTONIO, BY INSTRUMENT
DATED JANUARY 2, 1962, RECORDED IN VOLUME 5455, PAGE 509 OF THE DEED
RECORDS OF BEXAR COUNTY, TEXAS, AND AS SHOWN ON SURVEY DATED JANUARY 6,
2004, PREPARED BY PATRICIA ANN MANTOOTH, REGISTERED PROFESSIONAL LAND
SURVEYOR NO. 4721. (TRACT 1)
16. THE TERMS, CONDITIONS AND STIPULATIONS SET OUT IN THAT CERTAIN RELEASE OF
EASEMENTS AND GRANT OF ELECTRIC LIEN RIGHT OF WAY AGREEMENT DATED DECEMBER
15, 1995, RECORDED IN VOLUME 6618, PAGE(S) 1904 OF THE OFFICIAL PUBLIC
RECORDS OF REAL PROPERTY OF BEXAR COUNTY, TEXAS, AND AS SHOWN ON SURVEY
DATED JANUARY 6, 2004, PREPARED BY PATRICIA ANN MANTOOTH, REGISTERED
PROFESSIONAL LAND SURVEYOR NO. 4721. (TRACT 1)
17. THE TERMS, CONDITIONS AND STIPULATIONS SET OUT IN THAT CERTAIN LEASE, AS
EVIDENCED BY MEMORANDUM OF LEASE DATED JUNE 4, 1996, RECORDED IN VOLUME
6866, PAGE(S) 2052 OF THE OFFICIAL PUBLIC RECORDS OF REAL PROPERTY OF BEXAR
COUNTY, TEXAS. (TRACTS 1, 2 AND 3)
18. THE TERMS, CONDITIONS AND STIPULATIONS SET OUT IN THAT CERTAIN LEASE, AS
EVIDENCED BY MEMORANDUM OF LEASE DATED NOVEMBER 6, 1995, RECORDED IN VOLUME
6772, PAGE(S) 568 OF THE OFFICIAL PUBLIC RECORDS OF REAL PROPERTY OF BEXAR
COUNTY, TEXAS. (TRACTS 1, 2 AND 3)
2
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19. RIGHTS OF TENANTS IN POSSESSION, AS TENANTS ONLY, UNDER UNRECORDED LEASE
AGREEMENTS AS MORE PARTICULARLY DESCRIBED ON EXHIBIT B TO ASSIGNMENT OF
LEASES AND RENTS OF EVEN DATE HEREWITH EXECUTED BY BORROWER IN FAVOR OF
LENDER.
20. WATER, GAS, ELECTRIC, TELEPHONE, CABLE T.V. AND SANITARY SEWER EASEMENT 30
FEET IN WIDTH ALONG THE EAST PORTION OF SUBJECT PROPERTY, AS SHOWN BY THE
PLAT(S) RECORDED IN VOLUME 9542, PAGE (S) 30 OF THE MAP AND PLAT RECORDS OF
BEXAR COUNTY, TEXAS, AND AS SHOWN ON SURVEY DATED JANUARY 6, 2004, PREPARED
BY PATRICIA ANN MANTOOTH, REGISTERED PROFESSIONAL LAND SURVEYOR NO. 4721.
(TRACT 1)
21. WATER EASEMENT 8 FEET BY 15.56 FEET IN WIDTH TRAVERSING SUBJECT PROPERTY,
AS SHOWN BY THE PLAT(S) RECORDED IN VOLUME 9542, PAGE(S) 30 OF THE MAP AND
PLAT RECORDS OF BEXAR COUNTY, TEXAS, AND AS SHOWN ON SURVEY DATED JANUARY
6, 2004, PREPARED BY PATRICIA ANN MANTOOTH, REGISTERED PROFESSIONAL LAND
SURVEYOR NO. 4721. (TRACT 1)
22. WATER, GAS, ELECTRIC, TELEPHONE, CABLE T.V. AND SANITARY SEWER EASEMENT 16
FEET IN WIDTH TRAVERSING SUBJECT PROPERTY, AS SHOWN BY THE PLAT(S) RECORDED
IN VOLUME 9542, PAGE(S) 30 OF THE MAP AND PLAT RECORDS OF BEXAR COUNTY,
TEXAS, AND AS SHOWN ON SURVEY DATED JANUARY 6, 2004, PREPARED BY PATRICIA
ANN MANTOOTH, REGISTERED PROFESSIONAL LAND SURVEYOR NO. 4721. (TRACT 1)
23. WATER AND DRAINAGE EASEMENT 18 FEET IN WIDTH TRAVERSING SUBJECT PROPERTY,
AS SHOWN BY THE PLAT(S) RECORDED IN VOLUME 9542, PAGE(S) 30 OF THE MAP AND
PLAT RECORDS OF BEXAR COUNTY, TEXAS, AND AS SHOWN ON SURVEY DATED JANUARY
6, 2004, PREPARED BY PATRICIA ANN MANTOOTH, REGISTERED PROFESSIONAL LAND
SURVEYOR NO. 4721. (TRACT 1)
24. INGRESS/EGRESS EASEMENT VARYING IN WIDTH TRAVERSING SUBJECT PROPERTY, AS
SHOWN BY THE PLAT(S) RECORDED IN VOLUME 9542, PAGE(S) 30 OF THE MAP AND
PLAT RECORDS OF BEXAR COUNTY, TEXAS, AND AS SHOWN ON SURVEY DATED JANUARY
6, 2004, PREPARED BY PATRICIA ANN MANTOOTH, REGISTERED PROFESSIONAL LAND
SURVEYOR NO. 4721. (TRACT 1)
25. WATER AND DRAINAGE EASEMENT VARYING IN WIDTH TRAVERSING SUBJECT PROPERTY
LINE(S), AS SHOWN BY THE PLAT(S) RECORDED IN VOLUME 9542, PAGE(S) 30 OF THE
MAP AND PLAT RECORDS OF BEXAR COUNTY, TEXAS, AND AS SHOWN ON SURVEY DATED
JANUARY 6, 2004, PREPARED BY PATRICIA ANN MANTOOTH, REGISTERED PROFESSIONAL
LAND SURVEYOR NO. 4721. (TRACT 1)
26. UTILITY EASEMENT 20 FEET IN WIDTH TRAVERSING SUBJECT PROPERTY, AS SHOWN BY
THE PLAT(S) RECORDED IN VOLUME 4400, PAGE(S) 187 OF THE MAP AND PLAT
RECORDS OF BEXAR COUNTY, TEXAS, AND AS SHOWN ON SURVEY DATED JANUARY 6,
2004, PREPARED BY PATRICIA ANN MANTOOTH, REGISTERED PROFESSIONAL LAND
SURVEYOR NO. 4721. (TRACTS 1 AND 3)
27. UTILITY EASEMENT 16 FEET IN WIDTH TRAVERSING SUBJECT PROPERTY, AS SHOWN BY
THE PLAT(S) RECORDED IN VOLUME 4400, PAGE(S) 187 OF THE MAP AND PLAT
RECORDS OF BEXAR COUNTY, TEXAS, AND AS SHOWN ON SURVEY DATED JANUARY 6,
2004, PREPARED BY PATRICIA ANN MANTOOTH, REGISTERED PROFESSIONAL LAND
SURVEYOR NO. 4721. (TRACTS 1 AND 3)
28. DRAINAGE, WATER, GAS, ELECTRIC, TELEPHONE, SANITARY SEWER AND CABLE T.V.
EASEMENT VARYING IN WIDTH TRAVERSING SUBJECT PROPERTY, AS SHOWN BY THE
PLAT(S) RECORDED IN VOLUME 9536, PAGE(S) 3
3
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OF THE MAP AND PLAT RECORDS OF BEXAR COUNTY, TEXAS, VACATED BY VOLUME 9542,
PAGE 30 OF THE MAP AND PLAT RECORDS OF BEXAR COUNTY, TEXAS, AND AS SHOWN ON
SURVEY DATED JANUARY 6, 2004, PREPARED BY PATRICIA ANN MANTOOTH, REGISTERED
PROFESSIONAL LAND SURVEYOR NO. 4721. (TRACT 1)
29. WATER, GAS, ELECTRIC, TELEPHONE, SANITARY SEWER AND CABLE T.V. EASEMENT
VARYING IN WIDTH TRAVERSING SUBJECT PROPERTY, AS SHOWN BY THE PLAT(S)
RECORDED IN VOLUME 9536, PAGE(S) 3 OF THE MAP AND PLAT RECORDS OF BEXAR
COUNTY, TEXAS, AND AS SHOWN ON SURVEY DATED JANUARY 6, 2004, PREPARED BY
PATRICIA ANN MANTOOTH, REGISTERED PROFESSIONAL LAND SURVEYOR NO. 4721.
(TRACT 1)
30. DRAINAGE EASEMENTS VARYING IN WIDTH TRAVERSING SUBJECT PROPERTY, AS SHOWN
BY THE PLAT(S) RECORDED IN VOLUME 9536, PAGE(S) 3 OF THE MAP AND PLAT
RECORDS OF BEXAR COUNTY, TEXAS, AND AS SHOWN ON SURVEY DATED JANUARY 6,
2004, PREPARED BY PATRICIA ANN MANTOOTH, REGISTERED PROFESSIONAL LAND
SURVEYOR NO. 4721. (TRACT 1)
31. ELECTRIC AND GAS EASEMENT 14 FEET IN WIDTH TRAVERSING SUBJECT PROPERTY
LINE(S), AS SHOWN BY THE PLAT(S) RECORDED IN VOLUME 9536, PAGE(S) 3 OF THE
MAP AND PLAT RECORDS OF BEXAR COUNTY, TEXAS, AND AS SHOWN ON SURVEY DATED
JANUARY 6, 2004, PREPARED BY PATRICIA ANN MANTOOTH, REGISTERED PROFESSIONAL
LAND SURVEYOR NO. 4721. (TRACT 1)
32. SANITARY SEWER AND TELEPHONE EASEMENT 24 FEET IN WIDTH TRAVERSING SUBJECT
PROPERTY, AS SHOWN BY THE PLAT(S) RECORDED IN VOLUME 9536, PAGE(S) 3 OF THE
MAP AND PLAT RECORDS OF BEXAR COUNTY, TEXAS, AND AS SHOWN ON SURVEY DATED
JANUARY 6, 2004, PREPARED BY PATRICIA ANN MANTOOTH, REGISTERED PROFESSIONAL
LAND SURVEYOR NO. 4721. (TRACT 1)
33. DRAINAGE EASEMENT 18 FEET IN WIDTH TRAVERSING SUBJECT PROPERTY, AS SHOWN BY
THE PLAT(S) RECORDED IN VOLUME 9536, PAGE(S) 3 OF THE MAP AND PLAT RECORDS
OF BEXAR COUNTY, TEXAS, AND AS SHOWN ON SURVEY DATED JANUARY 6, 2004,
PREPARED BY PATRICIA ANN MANTOOTH, REGISTERED PROFESSIONAL LAND SURVEYOR
NO. 4721. (TRACT 1)
34. UTILITY EASEMENT 16 FEET IN WIDTH TRAVERSING SUBJECT PROPERTY, AS SHOWN BY
THE PLAT(S) RECORDED IN VOLUME 4960, PAGE(S) 122 OF THE MAP AND PLAT
RECORDS OF BEXAR COUNTY, TEXAS, AND AS SHOWN ON SURVEY DATED JANUARY 6,
2004, PREPARED BY PATRICIA ANN MANTOOTH, REGISTERED PROFESSIONAL LAND
SURVEYOR NO. 4721. (TRACT 1)
35. ENCROACHMENT OF PAVING AND CURBING INTO THE 870 FOOT BY 20 FOOT WATER
EASEMENT ALONG THE WEST PROPERTY LINE AS SHOWN ON SURVEY DATED JANUARY 26,
2004, PREPARED BY PATRICIA ANN MANTOOTH, REGISTERED PROFESSIONAL LAND
SURVEYOR NO. 4721. (TRACT 1)
36. ENCROACHMENT OF PAVING INTO THE 10 FOOT SANITARY SEWER EASEMENT ALONG THE
SOUTH PROPERTY LINE AS SHOWN ON THE SURVEY. (TRACT 1)
37. ENCROACHMENT OF PAVING AND CURBING INTO THE 14 FOOT ELECTRIC EASEMENT ALONG
THE NORTH PROPERTY LINE AS SHOWN ON THE SURVEY. (TRACT 1)
38. ENCROACHMENT OF PAVING, CURBING, COLUMNS AND STOP SIGN INTO THE 20 FOOT
UTILITY EASEMENT ALONG THE WEST PROPERTY LINE AS SHOWN ON THE SURVEY.
(TRACT 1)
4
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39. ENCROACHMENT OF PAVING INTO THE 16 FOOT UTILITY EASEMENT ALONG THE SOUTH
PROPERTY LINE AS SHOWN ON THE SURVEY. (TRACT 1)
40. ENCROACHMENT OF SIDEWALK AND PAVING INTO THE 10 FOOT SANITARY SEWER
EASEMENT ALONG THE SOUTH PROPERTY LINE AS SHOWN ON THE SURVEY. (TRACT 1)
41. ENCROACHMENT OF 1-STORY COMMERCIAL BUILDING, PAVING AND CURBING INTO THE 20
FOOT DRAINAGE EASEMENT TRAVERSING SUBJECT PROPERTY AS SHOWN ON THE SURVEY.
(TRACT 1)
42. ENCROACHMENT OF PAVING AND CURBING INTO THE WATER, GAS, ELECTRIC,
TELEPHONE, CABLE T.V. AND SANITARY SEWER LYING ADJACENT AND PARALLEL TO THE
EAST PROPERTY LINE AS SHOWN ON THE SURVEY. (TRACT 1)
43. ENCROACHMENT OF PAVING AND CURBING INTO THE 8 FOOT BY 15.56 FOOT WATER
EASEMENT TRAVERSING SUBJECT PROPERTY AS SHOWN ON THE SURVEY. (TRACT 1)
44. ENCROACHMENT OF PAVING AND CURBING INTO THE 16 FOOT WATER, GAS, ELECTRIC,
TELEPHONE, CABLE T.V. AND SANITARY SEWER EASEMENT TRAVERSING SUBJECT
PROPERTY AS SHOWN ON THE SURVEY. (TRACT 1)
45. ENCROACHMENT OF PAVING AND CURBING INTO THE 18 FOOT WATER AND DRAINAGE
EASEMENT TRAVERSING SUBJECT PROPERTY AS SHOWN ON THE SURVEY. (TRACT 1)
46. ENCROACHMENT OF PAVING AND CURBING INTO THE VARIABLE WIDTH WATER AND
DRAINAGE EASEMENT TRAVERSING SUBJECT PROPERTY AS SHOWN ON THE SURVEY.
(TRACT 1)
47. ENCROACHMENT OF PAVING, CURBING, STEEL STAIRS AND LANDING INTO THE VARIABLE
WIDTH WATER, GAS, ELECTRIC, TELEPHONE, SANITARY SEWER AND CABLE T.V.
EASEMENT TRAVERSING SUBJECT PROPERTY AS SHOWN ON THE SURVEY. (TRACT 1)
48. ENCROACHMENT OF 1-STORY COMMERCIAL BUILDING, PAVING AND CURBING INTO THE
VARIABLE WIDTH DRAINAGE EASEMENTS TRAVERSING SUBJECT PROPERTY AS SHOWN ON
THE SURVEY. (TRACT 1)
49. ENCROACHMENT OF PAVING INTO THE 14 FOOT ELECTRIC AND GAS EASEMENT
TRAVERSING SUBJECT PROPERTY AS SHOWN ON THE SURVEY. (TRACT 1)
50. ENCROACHMENT OF PAVING AND CURBING INTO THE 24 FOOT SANITARY SEWER AND
TELEPHONE EASEMENT TRAVERSING SUBJECT PROPERTY AS SHOWN ON THE SURVEY.
(TRACT 1)
51. ENCROACHMENT OF PAVING AND CURBING INTO THE 18 FOOT DRAINAGE EASEMENT
TRAVERSING SUBJECT PROPERTY AS SHOWN ON THE SURVEY. (TRACT 1)
52. 25.5 FOOT DRAINAGE EASEMENT AS SHOWN ON PLAT RECORDED IN VOLUME 9532, PAGE
166 OF THE DEED AND PLAT RECORDS OF BEXAR COUNTY, TEXAS. (TRACT 3)
53. 26 FOOT WATER, SEWER, ELECTRIC, GAS, TELEPHONE AND CABLE T.V. AS SHOWN ON
PLAT RECORDED IN VOLUME 9532, PAGE 166 OF THE DEED AND PLAT RECORDS OF
BEXAR COUNTY, TEXAS. (TRACT 3)
5
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54. NOTICE OF LIS PENDENS FILED FOR RECORD IN VOLUME 9558, PAGE 2082 OF THE
OFFICIAL PUBLIC RECORDS OF REAL PROPERTY COUNTY, TEXAS, CAUSE NO.
2002ED0053 IN THE PROBATE COURT NO. 1 JUDICIAL DISTRICT COURT OF BEXAR
COUNTY, TEXAS, STYLED THE STATE OF TEXAS VS. DDRA COMMUNITY CENTERS FOUR,
L.P., ET AL.
6
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La Plaza del Norte
Inland Western Retail Real Estate Trust, Inc.
2901 Butterfield Road
Oak Brook, Illinois 60523
Principal Life Insurance Company
c/o Principal Real Estate Investors, LLC
801 Grand Avenue
Des Moines, Iowa 50392
February___, 2004
Re: $32,528,000 Loan from Principal Life Insurance Company (the
"Lender") to Inland Western San Antonio Limited Partnership
("Borrower")
Ladies and Gentlemen:
Borrower has delivered copies of certain estoppel certificates obtained
by Borrower at the time of acquisition of title to the La Plaza del Norte
shopping center located in San Antonio, Texas (the "Property"), which estoppel
certificates (the "Estoppels") are more particularly described on the attached
Exhibit A.. Attached hereto as Exhibit B is a rent roll reflecting all tenant
leases currently affecting the Property (the "Leases") The undersigned hereby
certifies that the attached rent roll accurately reflects the rent currently
paid under and lease terms of the Leases and that there have been no material
changes in the statements made by the tenants that executed the Estoppels from
their respective dates through the date hereof, other than the date specified as
the last rent payment date. The undersigned further certifies that as of the
date hereof the Leases are in full force and effect, no tenant has committed an
uncured monetary default under its Lease, except as disclosed on Exhibit B, and
to the best of the undersigned's knowledge, no tenant has committed a
nonmonetary default under its Lease and Borrower is not in default under any
Lease.
This certification is made with the knowledge that Lender is about to
provide financing which will be secured by a Deed of Trust, Security Agreement
and Assignment of Rents upon the captioned property. Borrower hereby authorizes
Lender to rely upon the Estoppels and the information contained therein as if
the Estoppels were addressed to Lender.
PLEASE SEE FOLLOWING PAGE FOR SIGNATURES
<Page>
La Plaza del Norte
Inland Western San Antonio Limited Partnership,
an Illinois limited partnership
By: Inland Western San Antonio GP, L.L.C., a Delaware
limited liability company, its General Partner
By: Inland Western Retail Real Estate Trust, Inc.,
a Maryland corporation, its Sole Member
By: /s/ Valerie Medina
---------------------------------
Name: Valerie Medina
-------------------------------
Title: Asst. Secretary
------------------------------
Inland Western Retail Real Estate Trust, Inc.,
a Maryland corporation, general partner
By: /s/ Valerie Medina
--------------------------------
Name: Valerie Medina
------------------------------
Title: Asst. Secretary
-----------------------------
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La Plaza del Norte
Exhibit A
<Page>
La Plaza del Norte
Exhibit B
None