DEED OF TRUST, ASSIGNMENT OF LEASES AND RENTS, SECURITY AGREEMENT AND FIXTURE FILING by ESCARPMENT VILLAGE, L.P., as Borrower to RANDI MARGOLIN, as Trustee for the benefit of TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA, as Lender Property...
Authorization
ID AAA4442
Investment
ID M-0005934
DEED
OF TRUST, ASSIGNMENT OF LEASES AND RENTS,
by
ESCARPMENT
VILLAGE, L.P.,
as
Borrower
to
XXXXX
XXXXXXXX,
as
Trustee
for
the
benefit of
TEACHERS
INSURANCE AND ANNUITY ASSOCIATION OF AMERICA,
as
Lender
Property
Known As
Escarpment
Village
Xxxxxxxxx
Xxxx at Escarpment Blvd.
Austin,
Texas
After
Recordation This Deed of Trust Should Be Returned To:
Xxxxx
Xxxxxxxx, Esquire
c/o
Teachers Insurance and Annuity
Association
of America
000
Xxxxx
Xxxxxx
New
York,
New York 10017
DEED
OF TRUST, ASSIGNMENT OF LEASES AND RENTS,
THIS
DEED
OF TRUST, ASSIGNMENT OF LEASES AND RENTS, SECURITY AGREEMENT AND FIXTURE
FILING
made this 30th day of June, 2006 by ESCARPMENT VILLAGE, L.P., a Texas
limited partnership (“Borrower”)
having
its principal place of business at c/o Stratus Properties Inc., 00 Xxx Xxxxxxx
Xxxx., Xxxxx 000, Xxxxxx, Xxxxx 00000, to Xxxxx Xxxxxxxx (“Trustee”),
an
individual having
an
office at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, for the benefit of
TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA (“Lender”),
a New
York corporation, having an address at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
x0000.
RECITALS:
X. Xxxxxx
agreed to make and Xxxxxxxx agreed to accept a loan (the “Loan”)
in the
maximum principal amount of $22,800,000.00.
B. To
evidence the Loan, Xxxxxxxx executed and delivered to Lender a promissory
note
(the “Note”),
dated
the date of this Deed of Trust, in the principal amount of TWENTY-TWO MILLION
EIGHT HUNDRED THOUSAND AND NO/100 DOLLARS ($22,800,000.00) (that amount or
so
much as is outstanding from time to time is referred to as the “Principal”),
promising to pay the Principal with interest thereon to the order of Lender
as
set forth in the Note and with the balance, if any, of the Debt being due
and
payable on July 1, 2016 (the “Maturity
Date”).
C. To
secure
the Note, this Deed of Trust grants, bargains, sells and conveys, among other
things, Xxxxxxxx’s fee interest in the real property located in the City of
Austin, County of Xxxxxx, State of Texas more particularly described in
Exhibit
A
(the
“Land”)
to
Trustee.
ARTICLE
I
DEFINITIONS
AND RULES OF CONSTRUCTION
Section
1.1 Definitions.
Capitalized terms used in this Deed of Trust are defined in Exhibit
B
or in
the text with a cross-reference in Exhibit
B.
Section
1.2 Rules
of Construction.
This
Deed of Trust will be interpreted in accordance with the rules of construction
set forth in Exhibit
C.
ARTICLE
II
GRANTING
CLAUSES
Section
2.1 Encumbered
Property.
Borrower irrevocably grants, bargains, sells, transfers, conveys and assigns
to
Trustee, the following property, rights, interests and estates now or in
the
future owned or held by Xxxxxxxx (the “Property”)
for
the uses and purposes set
forth
in
this Deed of Trust (capitalized terms used in this Section 2.1 and not defined
in this Deed of Trust have the meanings ascribed to them in the Uniform
Commercial Code):
(i) the
Land;
(ii) all
buildings and improvements located on the Land (the “Improvements”);
(iii) all
right, title and interest Borrower has in and to all easements; rights of
way or
use, including any rights of ingress and egress; streets, roads, ways,
sidewalks, alleys and passages; strips and gores; sewer rights; water, water
rights, water courses, riparian rights and drainage rights; air rights and
development rights; oil and mineral rights; and tenements, hereditaments
and
appurtenances, in each instance adjoining or otherwise appurtenant to or
benefiting the Land or the Improvements;
(iv) all
right, title and interest Xxxxxxxx has in and to all General Intangibles
(including Software) and Goods, related to, attached to, contained in or
used in
connection with the Land or the Improvements (excluding personal property
owned
by tenants);
(v) the
interest of Xxxxxxxx, to the extent related to the Land, in all agreements,
ground leases, grants of easements or rights-of-way, permits, declarations
of
covenants, conditions and restrictions, disposition and development agreements,
planned unit development agreements, cooperative, condominium or similar
ownership or conversion plans, management, leasing, brokerage or parking
agreements or other material documents affecting Borrower or the Property,
including the documents described on Exhibit
D
but
expressly excluding the Leases (the “Property
Documents”);
(vi) all
Inventory held for sale, lease or resale or furnished or to be furnished
under
contracts of service, or used or consumed in the ownership, use or operation
of
the Property, and all Documents of title evidencing any part of any of the
foregoing;
(vii) all
Accounts, Documents, Goods, Instruments, money, Deposit Accounts, Chattel
Paper,
Letter-of-Credit Rights, Investment Property, General Intangibles and Supporting
Obligations relating to the Property, including all deposits held from time
to
time by the Accumulations Depositary to provide reserves for Taxes and
Assessments together with interest thereon, if any (the “Accumulations”),
and
all deposits for reserves held from time to time by Xxxxxx’s pledge agent in
accordance with the Reserve and Security Agreements described in the Section
entitled “Reserves”
and
all
accounts established to maintain the deposits together with investments thereof
and interest thereon;
(viii) all
awards and other compensation paid after the date of this Deed of Trust for
any
Condemnation (the “Condemnation
Awards”);
2
(ix) all
proceeds of and all unearned premiums on the Policies (the “Insurance
Proceeds”);
(x) all
right, title and interest of Borrower in all licenses, certificates of
occupancy, contracts, management agreements, operating agreements, operating
covenants, franchise agreements, permits and variances relating to the
Property;
(xi) all
books, records and other information, wherever located, which are in Borrower’s
possession, custody or control or to which Borrower is entitled at law or
in
equity and which are related to the Property, including all computer hardware
and software or other equipment used to record, store, manage, manipulate
or
access the information; and
(xii) all
after-acquired title to or remainder or reversion in any of the Property;
all
proceeds (excluding, however, sales or other dispositions of Inventory in
the
ordinary course of the business of operating the Land or the Improvements),
replacements, substitutions, products, accessions and increases, all additions,
accessions and extensions to, improvements of and substitutions or replacements
for any of the Property described in this Section; and all additional lands,
estates, interests, rights or other property acquired by Borrower after the
date
of this Deed of Trust for use in connection with the Land or the Improvements,
all without the need for any additional mortgage, assignment, pledge or
conveyance to Lender but Xxxxxxxx will execute and deliver to Lender, upon
Xxxxxx’s request, any documents reasonably requested by Xxxxxx to further
evidence the foregoing.
Section
2.2 Habendum
Clause.
The
Property, together with all and singular rights, hereditaments and appurtenances
in any way appertaining or belonging to the Property is conveyed to Trustee
and
Trustee’s successors, assigns or substitutes in this trust, to have and to hold
forever in trust and for the uses and purposes set forth in this Deed of
Trust.
Section
2.3 Security
Agreement.
(a) This
Deed
of Trust also constitutes a security agreement with respect to, and Borrower
hereby grants to Lender a security interest in, the Collateral. This Deed
of
Trust shall constitute a “fixture filing” for purposes of Chapter 9 of the
Uniform Commercial Code. Portions of the Collateral are or may become
fixtures.
(b) For
purposes of the fixture filing, Xxxxxxxx represents, as of the date hereof,
that
the following information set forth in clauses (i), (v) and (vi), is true
and
correct:
(i) The
exact
legal name and address of Debtor is:
Escarpment
Village, L.P.
00
Xxx
Xxxxxxx Xxxx, Xxxxx 000
Austin,
Texas 78701
3
(ii) Name
and
address of Secured Party:
Teachers
Insurance and Annuity
Association
of America
000
Xxxxx
Xxxxxx
New
York,
NY 10017
(iii) Description
of the types (or items) of property covered by this Financing
Statement:
all of
the property described in section ii-xii of the Section entitled “Encumbered
Property”
described or referred to herein and included as part of the
Property.
(iv) Description
of real estate to which collateral is attached or upon which it is located:
Described in Exhibit
A.
(v) Debtor’s
Federal Tax ID Number: 00-0000000, and Debtor’s Organizational Number in Texas
is 80032932.
(vi) Xxxxxx’s
chief executive office and principal place of business are both located in
the
State of Texas, and Debtor’s state of formation is the State of
Texas.
Lender
may file this Deed of Trust, or a reproduction thereof, in the real estate
records or other appropriate index, as a financing statement for any of the
items specified above as part of the Property. Any reproduction of this Deed
of
Trust or of any other security agreement or financing statement is sufficient
as
a financing statement.
Section
2.4 Common
Law Assignment.
To the
extent that any of the Collateral is not subject to the Uniform Commercial
Code
of the state or states where it is situated, Borrower hereby assigns to Lender
all of Borrower’s right, title, and interest in and to the Collateral to secure
the indebtedness secured hereby, together with the right of set-off with
regard
to such Collateral (or any part thereof). Release of the lien of this Deed
of
Trust will automatically terminate this assignment.
Section
2.5 Warrant.
Xxxxxxxx, for Xxxxxxxx and its successors and assigns, xxxxxx agrees to warrant
and forever defend, all and singular, title to the Property unto Trustee,
and
Xxxxxxx’s successors or substitutes in this trust, forever, against every person
whomsoever lawfully claiming, or to claim, the same or any part thereof,
subject, however, to the Permitted Exceptions.
Section
2.6 Deed
of Trust as Security.
This
Deed of Trust, and all rights, remedies, powers, privileges, and benefits,
and
all titles, interests, liens, and security interests created hereby, or arising
by virtue hereof, are given to secure payment and performance of the
Obligations.
4
ARTICLE
III
OBLIGATIONS
SECURED
Section
3.1 The
Obligations.
This
Deed of Trust secures the Principal, the Interest, the Late Charges, the
Prepayment Premiums, the Expenses, any additional advances made by Lender
in
connection with the Property or the Loan and all other amounts payable under
the
Loan Documents together with all renewals, extension, modification, refinancings
and rearrangements thereof (the “Debt”)
and
also secures both the timely payment of the Debt as and when required and
the
timely performance of all other obligations and covenants to be performed
under
the Loan Documents (the “Obligations”).
ARTICLE
IV
TITLE
AND AUTHORITY
Section
4.1 Title
to the Property.
(a) Subject
to the conveyance effectuated by this Deed of Trust, Borrower has and will
continue to have good and indefeasible title in fee simple absolute to the
Land
and the Improvements and good and marketable title to the Fixtures and Personal
Property, all free and clear of liens, encumbrances and charges except the
Permitted Exceptions. To Borrower’s knowledge, there are no facts or
circumstances that might give rise to a lien, encumbrance or charge on the
Property, except as contemplated hereby or shown as a Permitted
Exception.
(b) Xxxxxxxx
owns and will continue to own all of the other Property free and clear of
all
liens, encumbrances and charges except the Permitted Exceptions.
(c) This
Deed
of Trust is and will remain a valid and enforceable first lien on and security
interest in the Property, subject only to the Permitted Exceptions.
Section
4.2 Authority.
(a) Borrower
is and will continue to be (i) duly organized, validly existing and in good
standing under the Laws of the state in which it was formed, organized or
incorporated as set forth in Section 2.3 and (ii) duly qualified to conduct
business, in good standing, in the state or commonwealth where the Property
is
located.
(b) Borrower
has and will continue to have all approvals required by Law or otherwise
and
full right, power and authority to (i) own and operate the Property and carry
on
Borrower’s business as now conducted or as proposed to be conducted; (ii)
execute and deliver the Loan Documents; (iii) grant, mortgage, warrant the
title
to, convey, assign and pledge the Property to Lender pursuant to the provisions
of this Deed of Trust; and (iv) perform the Obligations.
(c) The
execution and delivery of the Loan Documents and the performance of the
Obligations do not and will not conflict with or result in a default under
any
Laws
5
or
any
Leases or Property Documents and do not and will not conflict with or result
in
a default under any agreement binding upon any party to the Loan
Documents.
(d) The
Loan
Documents constitute and will continue to constitute legal, valid and binding
obligations of all parties to the Loan Documents enforceable in accordance
with
their respective terms, subject to laws regarding bankruptcy, insolvency,
liquidation, receivership and reorganization.
(e) Borrower
has not changed its legal name or its state or commonwealth of organization
or
the state where its place of business is located, as set forth in Section
2.3,
in the four months prior to the date hereof, except as Borrower has disclosed
any such change to Lender in writing and delivered to Lender appropriate
Uniform
Commercial Code search reports in connection therewith.
(f) Borrower
has not (i) merged with or into any other entity or otherwise been involved
in
any reorganization or (ii) acquired substantially all of the assets of any
other
entity where Borrower became subject to the obligations of such entity, for
a
period of one year ending on the date hereof, except as Borrower has disclosed
any such change, merger, reorganization or acquisition to Lender in writing
and
delivered to Lender appropriate Uniform Commercial Code search reports in
connection therewith.
Section
4.3 No
Foreign Person.
Neither
Borrower nor the entity into which Borrower is disregarded for Federal tax
purposes is a “foreign person” within the meaning of Section 1445(f)(3) of the
Code.
Section
4.4 Litigation.
There
are no Proceedings or, to Xxxxxxxx’s knowledge, investigations against or
affecting Borrower or the Property and, to Xxxxxxxx’s knowledge, there are no
facts or circumstances that might give rise to a Proceeding or an investigation
against or affecting Borrower or the Property. Borrower will give Lender
prompt
notice of the commencement of any Proceeding or investigation against or
affecting the Property or Borrower which could have a material adverse effect
on
the Property or on Lender’s interests in the Property or under the Loan
Documents and, at Borrower’s expense, will appear in and defend any such
Proceeding or investigation. Xxxxxxxx also will deliver to Lender such
additional information relating to the Proceeding or investigation as Xxxxxx
may
request from time to time.
ARTICLE
V
PROPERTY
STATUS, MAINTENANCE AND LEASES
Section
5.1 Status
of the Property.
(a) Borrower
has obtained and will maintain in full force and effect all certificates,
licenses, permits and approvals that are issued or required by Law or by
any
entity having jurisdiction over the Property or over Borrower or that are
necessary for the Permitted Use, for occupancy and operation of the Property
for
the conveyance described in this Deed of Trust and for the conduct of Borrower’s
business on the Property in accordance with the Permitted Use; provided the
Leases shall require each of the tenants
6
to
obtain
specific licenses and permits required by their operations such as health
department licenses and alcohol and mixed beverage permits, .
(b) The
Property is and will continue to be serviced by all public utilities required
for the Permitted Use of the Property.
(c) All
roads
and streets necessary for service of and access to the Property for the current
or contemplated use of the Property have been completed and are and will
continue to be serviceable, physically open and dedicated to and accepted
by the
Government for use by the public.
(d) The
Property is free from damage caused by a Casualty.
(e) All
costs
and expenses of labor, materials, supplies and equipment used in the
construction of the Improvements have been paid in full, other than certain
leasehold improvements by tenants for which tenants are responsible for
payment.
Section
5.2 Maintenance
of the Property.
Borrower will maintain the Property in thorough repair and good and safe
condition, suitable for the Permitted Use, including, to the extent necessary,
replacing the Fixtures and Personal Property with property at least equal
in
quality and condition to that being replaced and free of liens. Borrower
will
not erect any new buildings, building additions or other structures on the
Land
or otherwise materially alter the Improvements without Lender’s prior consent
which may be withheld in Lender’s sole discretion (which approval for tenant
improvements that are not structural in nature may be in the form of approval
or
deemed approval of a Lease; structural improvements or alterations will require
Lender’s approval). The Property will be managed by Xxxxxxxx Xxxx Central Texas,
Ltd or another property manager satisfactory to Lender pursuant to a management
agreement satisfactory to Lender and terminable by Borrower upon 30 days
notice
to the property manager.
Section
5.3 Change
in Use.
Borrower will use and permit the use of the Property for the Permitted Use
and
for no other purpose.
Section
5.4 Waste.
Borrower will not commit or permit any waste (including economic and
non-physical waste), impairment or deterioration of the Property or any
alteration, demolition or removal of any of the Property (except as may be
expressly permitted by the provisions of this Deed of Trust) without Xxxxxx’s
prior consent which may be withheld in Xxxxxx’s sole discretion.
Section
5.5 Inspection
of the Property.
Subject
to the rights of tenants under the Leases, Xxxxxx has the right to enter
and
inspect the Property on reasonable prior notice, except during the existence
of
an Event of Default, when no prior notice is necessary. Xxxxxx has the right
to
engage an independent expert to review and report on Xxxxxxxx’s compliance with
Xxxxxxxx’s obligations under this Deed of Trust to maintain the Property, comply
with Law and refrain from waste, impairment or deterioration of the Property
and
the alteration, demolition or removal of any of the Property except as may
be
permitted by the provisions of this Deed of Trust. If the independent expert’s
report discloses material failure to comply with such obligations or if Xxxxxx
engages the independent expert after the occurrence of an Event of
7
Default,
then the independent expert’s review and report will be at Borrower’s expense,
payable on demand.
Section
5.6 Leases
and Rents.
(a) Borrower
assigns the Leases and the Rents to Lender absolutely and unconditionally
and
not merely as additional collateral or security for the payment and performance
of the Obligations, but subject to a license back to Borrower of the right
to
collect the Rents unless and until an Event of Default occurs at which time
the
license will terminate automatically, all as more particularly set forth
in the
Assignment, the provisions of which are incorporated in this Deed of Trust
by
reference.
(b) Xxxxxxxx
appoints Xxxxxx as Xxxxxxxx’s attorney-in-fact to execute unilaterally and
record, at Xxxxxx’s election, a document subordinating this Deed of Trust to the
Leases, provided
that the
subordination will not affect (i) the priority of Xxxxxx’s entitlement to
Insurance Proceeds or Condemnation Awards or (ii) the priority of this Deed
of
Trust over intervening liens or liens arising under or with respect to the
Leases.
Section
5.7 Parking.
Borrower will provide, maintenance and light parking areas within the Property,
including any sidewalks, aisles, streets, driveways, sidewalk cuts and
rights-of-way to and from the adjacent public streets, in a manner consistent
with the Permitted Use and sufficient to accommodate the greatest of: (i)
the
number of parking spaces required by Law; (ii) the number of parking spaces
required by the Leases and the Property Documents; or (iii) 577 parking spaces.
The parking areas will be reserved and used exclusively for ingress, egress
and
parking for Borrower and the tenants under the Leases and their respective
employees, customers and invitees and in accordance with the Leases and the
Property Documents.
Section
5.8 Separate
Tax Lot.
The
Property is and will remain assessed for real estate tax purposes as one
or more
wholly independent tax lots, separate from any property that is not part
of the
Property.
Section
5.9 Changes
in Zoning or Restrictive Covenants.
Borrower will not (i) initiate, join in or consent to any change in any Laws
pertaining to zoning, any restrictive covenant or other restriction which
would
restrict the Permitted Uses for the Property; (ii) permit the Property to
be
used to fulfill any requirements of Law for the construction or maintenance
of
any improvements on property that is not part of the Property; (iii) permit
the
Property to be used for any purpose not included in the Permitted Use; or (iv)
impair the integrity of the Property as a single, legally subdivided zoning
lots
separate from all other property.
Section
5.10 Xxxxxx’s
Right to Appear.
Xxxxxx
has the right to appear in and defend any Proceeding brought regarding the
Property and to bring any Proceeding, in the name and on behalf of Borrower
or
in Xxxxxx’s name, which Xxxxxx, in its sole discretion, determines should be
brought to protect Xxxxxx’s interest in the Property.
8
ARTICLE
VI
IMPOSITIONS
AND ACCUMULATIONS
Section
6.1 Impositions.
(a) Borrower
will pay each Imposition at least 15 days before the date (the “Imposition
Penalty Date”)
that
is the earlier of (i) the date on which the Imposition becomes delinquent
and
(ii) the date on which any penalty, interest or charge for non-payment of
the
Imposition accrues.
(b) At
least
10 days before each Imposition Penalty Date, Borrower will deliver to Lender
a
receipted bill or other evidence of payment.
(c) Borrower,
at its own expense, may contest any Taxes or Assessments, provided
that the
following conditions are met:
(i) not
less
than 30 days prior to the Imposition Penalty Date, Borrower delivers to Lender
notice of the proposed contest;
(ii) the
contest is by a Proceeding promptly initiated and conducted diligently and
in
good faith;
(iii) there
is
no Event of Default;
(iv) the
Proceeding suspends the collection of the contested Taxes or
Assessments;
(v) the
Proceeding is permitted under and is conducted in accordance with the Leases
and
the Property Documents;
(vi) the
Proceeding precludes imposition of criminal or civil penalties and sale or
forfeiture of the Property and Lender will not be subject to any civil suit;
and
(vii) Borrower
either deposits with the Accumulations Depositary reserves or furnishes a
bond
or other security satisfactory to Lender, in either case in an amount sufficient
to pay the contested Taxes or Assessments, together with all interest and
penalties or Borrower pays all of the contested Taxes or Assessments under
protest.
(d) Installment
Payments.
If any
Assessment is payable in installments, Borrower will nevertheless pay the
Assessment in its entirety on the day the first installment becomes due and
payable or a lien, unless Lender, in its sole discretion, approves payment
of
the Assessment in installments.
9
Section
6.2 Accumulations.
(a) Borrower
made an initial deposit with either Lender or a mortgage servicer or financial
institution designated or approved by Lender from time to time, acting on
behalf
of Xxxxxx as Xxxxxx’s agent or otherwise such that Lender is the “customer”, as
defined in the Uniform Commercial Code, of the depository bank with respect
to
the deposit account into which the Accumulations are deposited, to receive,
hold
and disburse the Accumulations in accordance with this Section (the
“Accumulations
Depositary”).
On
the first day of each calendar month during the Term Borrower will deposit
with
the Accumulations Depositary an amount equal to 1/12 of the annual Taxes
and
Assessments as determined by Lender or its designee. At least 45 days before
each Imposition Penalty Date, Borrower will deliver to the Accumulations
Depositary any bills and other documents that are necessary to pay the Taxes
and
Assessments.
(b) Prior
to
an Event of Default the Accumulations will be applied to the payment of Taxes
and Assessments. From and after an Event of Default, Lender may apply the
Accumulations to the balance of the Debt in such order as Lender determines.
Any
excess Accumulations after payment of Taxes and Assessments will be returned
to
Borrower or credited against future payments of the Accumulations, at Xxxxxx’s
election or as required by Law. If the Accumulations are not sufficient to
pay
Taxes and Assessments, Borrower will pay the deficiency to the Accumulations
Depositary within 5 days of demand.
(c) The
Accumulations Depositary will hold the Accumulations as security for the
Obligations until applied in accordance with the provisions of this Deed
of
Trust and any agreement among Borrower, Lender and the Accumulations Depositary.
If Lender is not the Accumulations Depositary, the Accumulations Depositary
will
deliver the Accumulations to Lender upon Xxxxxx’s demand at any time after an
Event of Default.
(d) If
the
Property is sold or conveyed other than by foreclosure or transfer in lieu
of
foreclosure, all right, title and interest of Borrower to the Accumulations
will
automatically, and without necessity of further assignment, be held for the
account of the new owner, subject to the provisions of this Section and Borrower
will have no further interest in the Accumulations.
(e) The
Accumulations Depositary has deposited the initial deposit and will deposit
the
monthly deposits into a separate interest bearing account with Lender
denominated as secured party, all in accordance with an agreement among
Borrower, Lender and the Accumulations Depositary dated the date of this
Deed of
Trust.
(f) Lender
has the right to pay, or to direct the Accumulations Depositary to pay, any
Taxes or Assessments unless Borrower is contesting the Taxes or Assessments
in
accordance with the provisions of this Deed of Trust, in which event any
payment
of the contested Taxes or Assessments will be made under protest in the manner
prescribed by Law or, at Lender’s election, will be withheld.
10
(g) If
Xxxxxx
assigns this Deed of Trust, Lender will pay, or cause the Accumulations
Depositary to pay, the unapplied balance of the Accumulations to or at the
direction of the assignee. Simultaneously with the payment, Lender and the
Accumulations Depositary will be released from all liability with respect
to the
Accumulations and Borrower will look solely to the assignee with respect
to the
Accumulations. When the Obligations have been fully satisfied, any unapplied
balance of the Accumulations will be returned to Borrower. At any time after
an
Event of Default occurs, Lender may apply the Accumulations as a credit against
any portion of the Debt selected by Xxxxxx in its sole discretion.
Section
6.3 Changes
in Tax Laws.
If a
Law requires the deduction of the Debt from the value of the Property for
the
purpose of taxation or imposes a tax, either directly or indirectly, on the
Debt, any Loan Document or Xxxxxx’s interest in the Property, Borrower will pay
the tax with interest and penalties, if any. If Lender determines that
Xxxxxxxx’s payment of the tax may be unlawful, unenforceable, usurious or
taxable to Lender, the Debt will become immediately due and payable on 90
days’
prior written notice without any prepayment premium or penalty unless the
tax
must be paid within the 90-day period, in which case, the Debt will be due
and
payable within the lesser period.
Section
6.4 Reserves.
Borrower made an initial deposit and will make monthly deposits into an account
established as security for the payment and performance of the Obligations,
to
be held and disbursed in accordance with a Tenant Improvement Pledge and
Security Agreement (the “Reserve
and Security Agreement”)
dated
the date of this Deed of Trust among Borrower, Lender and Xxxxxx’s pledge
agent.
ARTICLE
VII
INSURANCE,
CASUALTY, CONDEMNATION AND
RESTORATION
Section
7.1 Insurance
Coverages.
(a) Borrower
will maintain such insurance coverages and endorsements in form and substance
and in amounts as Lender may require in its sole discretion, from time to
time.
Until Lender notifies Borrower of changes in Lender’s requirements, Borrower
will maintain not less than the insurance coverages and endorsements Lender
required for closing of the Loan.
(b) The
insurance, including renewals, required under this Section will be issued
on
valid and enforceable policies and endorsements satisfactory to Lender (the
“Policies”).Each
Policy will contain a standard waiver of subrogation and a replacement cost
endorsement and will provide that Lender will receive not less than 30 days’
prior written notice of any cancellation, termination or non-renewal of a
Policy
or any material change other than an increase in coverage and that Lender
will
be named under a standard mortgage endorsement as loss payee.
(c) The
insurance companies issuing the Policies (the “Insurers”)
must
be authorized to do business in the State or Commonwealth where the Property
is
located,
11
must
have
been in business for at least 5 years, must carry an A.M. Best Company,
Inc.
policy holder rating of A or better and an A.M. Best Company, Inc. financial
category rating of Class X or better and must be otherwise satisfactory
to
Lender. Lender may select an alternative credit rating agency and may impose
different credit rating standards for the Insurers. Notwithstanding Xxxxxx’s
right to approve the Insurers and to establish credit rating standards
for the
Insurers, Lender will not be responsible for the solvency of any
Insurer.
(d) Notwithstanding
Xxxxxx’s rights under this Article, Xxxxxx will not be liable for any loss,
damage or injury resulting from the inadequacy or lack of any insurance
coverage.
(e) Borrower
will comply with the provisions of the Policies and with the requirements,
notices and demands imposed by the Insurers and applicable to Borrower or
the
Property.
(f) Borrower
will pay the Insurance Premiums for each Policy not less than 30 days before
the
expiration date of the Policy being replaced or renewed and will deliver
to
Lender an original certificate of insurance not less than 15 days prior to
the
expiration of the Policy and an original or, if a blanket policy, a certified
copy of each Policy marked “Paid” not less than 30 days thereafter.
(g) Borrower
will not carry separate insurance concurrent in kind or form or contributing
in
the event of loss with any other insurance carried by Borrower.
(h) Borrower
will not carry any of the insurance required under this Section on a blanket
or
umbrella policy without in each instance Lender’s prior written approval. If
Lender approves, Borrower will deliver to Lender a certified copy of the
blanket
policy which will allocate to the Property the amount of coverage required
under
this Section and otherwise will provide the same coverage and protection
as
would a separate policy insuring only the Property.
(i) Borrower
will give the Insurers prompt notice of any change in ownership or occupancy
of
the Property. This subsection does not abrogate the prohibitions on transfers
set forth in this Deed of Trust.
(j) If
the
Property is sold at a foreclosure sale or otherwise is transferred so as
to
extinguish the Obligations, all of Borrower’s right, title and interest in and
to the Policies then in force will be transferred automatically to the purchaser
or transferee.
Section
7.2 Casualty
and Condemnation.
(a) Borrower
will give Lender notice of any Casualty immediately after it occurs and will
give Lender notice of any Condemnation Proceeding immediately after Borrower
receives notice of commencement or notice that such a Condemnation Proceeding
will be commencing. Xxxxxxxx immediately will deliver to Lender copies of
all
documents Borrower delivers or receives relating to the Casualty or the
Condemnation Proceeding, as the case may be.
12
(b) Xxxxxxxx
authorizes Xxxxxx, at Xxxxxx’s option, to act on Xxxxxxxx’s behalf to collect,
adjust and compromise any claims for loss, damage or destruction under the
Policies on such terms as Lender determines in Xxxxxx’s sole discretion.
Xxxxxxxx authorizes Xxxxxx to act, at Xxxxxx’s option, on Xxxxxxxx’s behalf in
connection with any Condemnation Proceeding. Xxxxxxxx will execute and deliver
to Lender all documents requested by Xxxxxx and all documents as may be required
by Law to confirm such authorizations. Nothing in this Section will be construed
to limit or prevent Xxxxxx from joining with Borrower either as a co-defendant
or as a co-plaintiff in any Condemnation Proceeding.
(c) If
Lender
elects not to act on Xxxxxxxx’s behalf as provided in this Section, then
Xxxxxxxx promptly will file and prosecute all claims (including Xxxxxx’s claims)
relating to the Casualty and will prosecute or defend (including defense
of
Xxxxxx’s interest) any Condemnation Proceeding; provided, Xxxxxxxx’s engagement
of any legal counsel for such Condemnation Proceeding on a contingent fee
or
percent of recovery basis will be subject to Xxxxxx’s prior written approval.
Borrower will have the authority to settle or compromise the claims or
Condemnation Proceeding, as the case may be, provided
that
Xxxxxx has approved in Xxxxxx’s sole discretion any compromise or settlement
that exceeds $250,000.00. Any check for Insurance Proceeds or Condemnation
Awards, as the case may be (the “Proceeds”)
will
be made payable to Lender and Borrower. Borrower will endorse the check to
Lender immediately upon Lender presenting the check to Borrower for endorsement
or if Borrower receives the check first, will endorse the check immediately
upon
receipt and forward it to Lender. If any Proceeds are paid to Borrower, Borrower
immediately will deposit the Proceeds with Lender, to be applied or disbursed
in
accordance with the provisions of this Deed of Trust. Xxxxxx will be responsible
for only the Proceeds actually received by Xxxxxx.
Section
7.3 Application
of Proceeds.
After
deducting the costs incurred by Xxxxxx in collecting the Proceeds, Lender
may,
in its sole discretion, (i) apply the Proceeds as a credit against any portion
of the Debt selected by Xxxxxx in its sole discretion of the Debt (without
payment of any prepayment premium or penalty, so long as no Event of Default
then exists); (ii) apply the Proceeds to restore the Improvements, provided
that
Lender will not be obligated to see to the proper application of the Proceeds
and provided further
that any
amounts released for Restoration will not be deemed a payment on the Debt;
or
(iii) deliver the Proceeds to Borrower.
Section
7.4 Conditions
to Availability of Proceeds for Restoration.
Notwithstanding the preceding Section, after a Casualty or a Condemnation
(a
“Destruction
Event”),
Lender will make the Proceeds (less any costs incurred by Xxxxxx in collecting
the Proceeds) available for Restoration in accordance with the conditions
for
disbursements set forth in the Section entitled “Restoration”,
provided
that the
following conditions are met:
(i) Escarpment
Village, L.P. or the transferee under a Permitted Transfer, if any, continues
to
be Borrower at the time of the Destruction Event and at all times thereafter
until the Proceeds have been fully disbursed;
13
(ii) no
default under the Loan Documents exists at the time of the Destruction Event
and
no Event of Default has occurred during the 12 months prior to the Destruction
Event; and
(iii) all
Leases in effect immediately prior to the Destruction Event and all Property
Documents in effect immediately prior to the Destruction Event that are
essential to the use and operation of the Property continue in full force
and
effect notwithstanding the Destruction Event.
(iv) if
the
Destruction Event is a Condemnation, Xxxxxxxx delivers to Lender evidence
satisfactory to Lender that the Improvements can be restored to an economically
and architecturally viable unit;
(v) Borrower
delivers to Lender evidence satisfactory to Lender that the Proceeds are
sufficient to complete Restoration or if the Proceeds are insufficient to
complete Restoration, Borrower first deposits with Lender funds (“Additional
Funds”)
that
when added to the Proceeds will be sufficient to complete
Restoration;
(vi) if
the
Destruction Event is a Casualty, Borrower delivers to Lender evidence
satisfactory to Lender that the Insurer under each affected Policy has not
denied liability under the Policy as to Borrower or the insured under the
Policy;
(vii) Lender
is
satisfied that the proceeds of any business interruption insurance in effect
together with other available gross revenues from the Property and any
additional sums (separate and apart from the Additional Funds) deposited
by
Borrower with Lender are sufficient to pay Debt Service Payments after paying
the Impositions, Insurance Premiums, reasonable and customary operating expenses
and capital expenditures until Restoration is complete;
(viii) Lender
is
satisfied that Restoration will be completed on or before the date (the
“Restoration
Completion Date”)
that
is the earliest of: (A) 12 months prior to the Maturity Date; (B) 12 months
after the Destruction Event; (C) the earliest date required for completion
of
Restoration under any Lease or any Property Document; or (D) any date required
by Law; and
(ix) the
annual Rents (excluding security deposits) under Leases in effect on the
date of
the Destruction Event are providing debt service coverage for the annual
Debt
Service Payments of 1.15 after payment of annual Insurance Premiums, Impositions
and operating expenses of the Property (including ground rent, if any),
provided
that, if
the Rents do not provide such debt service coverage, then Borrower expressly
authorizes and directs Lender to apply an amount from the Proceeds to reduction
of Principal in order to reduce the annual Debt Service Payments sufficiently
for such debt service coverage to be achieved. The reduced debt service payments
will be calculated using the Fixed Interest Rate and an amortization schedule
that will achieve the same proportionate amortization of the reduced Principal
over the then remaining Term as would have been achieved if
14
the
Principal and the originally scheduled Debt Service Payments had not been
reduced. Borrower will execute any documentation that Xxxxxx deems reasonably
necessary to evidence the reduced Principal and debt service
payments.
Section
7.5 Restoration.
(a) If
the
total Proceeds for any Destruction Event are $250,000.00 or less and Lender
elects or is obligated by Law or under this Article to make the Proceeds
available for Restoration, Lender will disburse to Borrower the entire amount
received by Xxxxxx and Borrower will commence Restoration promptly after
the
Destruction Event and complete Restoration not later than the Restoration
Completion Date.
(b) If
the
Proceeds for any Destruction Event exceed $250,000.00 and Lender elects or
is
obligated by Law or under this Article to make the Proceeds available for
Restoration, Lender will disburse the Proceeds and any Additional Funds (the
“Restoration
Funds”)
upon
Borrower’s request as Restoration progresses, generally in accordance with
normal construction lending practices for disbursing funds for construction
costs, provided
that the
following conditions are met:
(i) Borrower
commences Restoration promptly after the Destruction Event and completes
Restoration on or before the Restoration Completion Date;
(ii) if
Lender
requests, Xxxxxxxx delivers to Lender prior to commencing Restoration, for
Xxxxxx’s approval, plans and specifications and a detailed budget for the
Restoration;
(iii) Borrower
delivers to Lender satisfactory evidence of the costs of Restoration incurred
prior to the date of the request, and such other documents as Lender may
request
including mechanics’ lien waivers and title insurance endorsements;
(iv) Borrower
pays all costs of Restoration whether or not the Restoration Funds are
sufficient and, if at any time during Restoration, Lender determines that
the
undisbursed balance of the Restoration Funds is insufficient to complete
Restoration, Borrower deposits with Lender, as part of the Restoration Funds,
an
amount equal to the deficiency within 30 days of receiving notice of the
deficiency from Lender; and
(v) there
is
no default under the Loan Documents at the time Borrower requests funds or
at
the time Lender disburses funds.
(c) If
an
Event of Default occurs at any time after the Destruction Event, then Lender
will have no further obligation to make any remaining Proceeds available
for
Restoration and may apply any remaining Proceeds as a credit against any
portion
of the Debt selected by Xxxxxx in its sole discretion.
(d) Lender
may elect at any time prior to commencement of Restoration or while work
is in
progress to retain, at Xxxxxxxx’s expense, an independent engineer or
15
other
consultant to review the plans and specifications, to inspect the work
as it
progresses and to provide reports. If any matter included in a report by
the
engineer or consultant is unsatisfactory to Lender, Lender may suspend
disbursement of the Restoration Funds until the unsatisfactory matters
contained
in the report are resolved to Lender’s satisfaction.
(e) If
Borrower fails to commence and complete Restoration in accordance with the
terms
of this Article, then in addition to the Remedies, Lender may elect to restore
the Improvements on Xxxxxxxx’s behalf and reimburse itself out of the
Restoration Funds for costs and expenses incurred by Lender in restoring
the
Improvements, or Lender may apply the Restoration Funds as a credit against
any
portion of the Debt selected by Lender in its sole discretion (without payment
of any prepayment premium or penalty) so long as no Event of Default shall
then
exist.
(f) Lender
may commingle the Restoration Funds with its general assets and will not
be
liable to pay any interest or other return on the Restoration Funds unless
otherwise required by Law. Lender will not hold any Restoration Funds in
trust.
So long as no Event of Default shall have occurred and be continuing and
so long
as Borrower pays all costs and expenses of preparing and negotiating a pledge
and security agreement acceptable to Lender, and the fees and expenses of
the
depositary, Lender will deposit the Restoration Funds with a depositary
satisfactory to Lender under a disbursement and security agreement satisfactory
to Lender to be held by the depositary in an interest-bearing
account.
(g) Borrower
will pay all of Xxxxxx’s expenses incurred in connection with a Destruction
Event or Restoration. If Xxxxxxxx fails to do so, then in addition to the
Remedies, Xxxxxx may from time to time reimburse itself out of the Restoration
Funds.
(h) If
any
excess Proceeds remains after Restoration, Lender may elect, in its sole
discretion either to apply the excess as a credit against any portion of
the
Debt as selected by Lender in its sole discretion (without payment of any
prepayment premium or penalty, so long as no Event of Default shall then
exist)
or to deliver the excess to Borrower.
ARTICLE
VIII
COMPLIANCE
WITH LAW AND AGREEMENTS
Section
8.1 Compliance
with Law.
Borrower, the Property and the use of the Property comply and will continue
to
comply with Law and with all agreements and conditions necessary to preserve
and
extend all rights, licenses, permits, privileges, franchises and concessions
(including zoning variances, special exceptions and non-conforming uses)
relating to the Property or Borrower. Borrower will notify Lender of the
commencement of any investigation or Proceeding relating to a possible violation
of Law immediately after Borrower receives notice thereof and, will deliver
promptly to Lender copies of all documents Borrower receives or delivers
in
connection with the investigation or Proceeding. Borrower will not alter
the
Property in any manner that would increase Borrower’s responsibilities for
compliance with Law.
16
Section
8.2 Compliance
with Agreements.
There
are no defaults, events of defaults or events which, with the passage of
time or
the giving of notice, would constitute an event of default under the Property
Documents. Borrower will pay and perform all of its obligations under the
Property Documents as and when required by the Property Documents. Borrower
will
cause all other parties to the Property Documents to pay and perform their
obligations under the Property Documents as and when required by the Property
Documents. Borrower will not amend or waive any provisions of the Property
Documents; exercise any options under the Property Documents; give any approval
required or permitted under the Property Documents that would adversely affect
the Property or Lender’s rights and interests under the Loan Documents; cancel
or surrender any of the Property Documents; or release or discharge or permit
the release or discharge of any party to or entity bound by any of the Property
Documents, without, in each instance, Xxxxxx’s prior approval (excepting
therefrom all service contracts or other agreements entered into in the normal
course of business that are cancelable upon not more than 30 days notice).
Borrower promptly will deliver to Lender copies of any notices of default
or of
termination that Borrower receives or delivers relating to any Property
Document.
Section
8.3 ERISA
Compliance.
(a) Neither
Borrower nor any of Borrower’s constituent entities is or will be an “employee
benefit plan” as defined in Section 3(3) of the Employee Retirement Income
Security Act of 1974 (“ERISA”)
that
is subject to Title I of ERISA or a “plan” as defined in Section 4975(e)(1) of
the Code that is subject to Section 4975 of the Code, and neither the assets
of
Borrower or of Borrower’s constituent entities are or will constitute “plan
assets” of one or more such plans for purposes of Title I of ERISA or Section
4975 of the Code.
(b) Borrower
is not and will continue not to be a “governmental
plan”
within
the meaning of Section 3(32) of ERISA and transactions by or with Borrower
are
not and will not be subject to any Laws regulating investments of and fiduciary
obligations with respect to governmental plans.
(c) Borrower
will not engage in any transaction which would cause any obligation or any
action under the Loan Documents, including Xxxxxx’s exercise of the Remedies, to
be a non-exempt prohibited transaction under ERISA.
Section
8.4 Anti-Terrorism.
(a) None
of
Borrower, Indemnitor or their respective constituents or affiliates are in
violation of any Laws relating to terrorism or money laundering, including
Executive Order No. 13224 on Terrorist Financing, effective September 24,
2001
and relating to Blocking Property and Prohibiting Transactions With Persons
Who
Commit, Threaten to Commit, or Support Terrorism, (the “Executive
Order”)
and
the Uniting and Strengthening America by Providing Appropriate Tools Required
to
Intercept and Obstruct Terrorism Act of 2001 (Public Law 107-56, the
“Patriot
Act”).
(b) None
of
Borrower, Indemnitor, any of their respective constituents or affiliates,
any of
their respective brokers or other agents acting or benefiting in any
17
capacity
in connection with the Loan or, to Xxxxxxxx’s knowledge as of the date hereof,
the Seller of the Subject Property (if any portion of the Subject Property
is
being acquired with proceeds of the Loan) is a “Prohibited
Person”
which
is defined as follows: a person or entity that is listed in the Annex to,
or is
otherwise subject to the provisions of, the Executive Order No. 13224 on
Terrorist Financing, effective September 24, 2001 and relating to the Executive
Order; a person or entity owned or controlled by, or acting for or on behalf
of,
any person or entity that is listed in the Annex to, or is otherwise subject
to
the provisions of, the Executive Order; a person or entity with whom Xxxxxx
is
prohibited from dealing or otherwise engaging in any transaction by any
terrorism or money laundering Law, including the Executive Order and the
Patriot
Act;
(i) a
person
or entity who commits, threatens or conspires to commit or supports “terrorism”
as defined in the Executive Order; a person or entity that is named as a
“specially designated national and blocked person” on the most current list
published by the U.S. Treasury Department Office of Foreign Assets Control
at
its official website, or at any replacement website or other replacement
official publication of such list; and a person or entity who is affiliated
with
a person or entity listed above.
(c) None
of
Borrower, Indemnitor, any of their respective affiliates or constituents,
any of
their respective brokers or other agents acting in any capacity in connection
with the Loan or to Borrower’s knowledge as of the date hereof the seller of the
Subject Property (if any portion of the Property is being acquired with proceeds
of the Loan), is or will (i) conduct any business or engage in any transaction
or dealing with any Prohibited Person, including the making or receiving
any
contribution of funds, goods or services to or for the benefit of any Prohibited
Person, (ii) deal in, or otherwise engage in any transaction relating to,
any
property or interests in property blocked pursuant to the Executive Order;
or
(iii) engage in or conspire to engage in any transaction that evades or avoids,
or has the purpose of evading or avoiding, or attempts to violate, any of
the
prohibitions set forth in the Executive Order or the Patriot Act.
(d) Borrower
covenants and agree to deliver to Lender any certification or other evidence
requested from time to time by Xxxxxx in its sole discretion, confirming
Borrower’s compliance with this section.
Section
8.5 Section
6045(e) Filing.
Borrower will supply or cause to be supplied to Lender either (i) a copy
of a
completed Form 1099-B, Statement for Recipients of Proceeds from Real Estate,
Broker and Barter Exchange Proceeds prepared by Xxxxxxxx’s attorney or other
person responsible for the preparation of the form, together with a certificate
from the person who prepared the form to the effect that the form has, to
the
best of the preparer’s knowledge, been accurately prepared and that the preparer
will timely file the form; or (ii) a certification from Borrower that the
Loan
is a refinancing of the Property or is otherwise not required to be reported
to
the Internal Revenue Service pursuant to Section 6045(e) of the Code. Under
no
circumstances will Lender or Xxxxxx’s counsel be obligated to file the reports
or returns.
18
ARTICLE
IX
ENVIRONMENTAL
Section
9.1 Environmental
Representations and Warranties.
Except
as
disclosed in the Environmental Report and to Xxxxxxxx’s knowledge as of the date
of this Deed of Trust:
(i) no
Environmental Activity has occurred or is occurring on the Property other
than
the use, storage, and disposal of Hazardous Materials which (A) is in the
ordinary course of business consistent with the Permitted Use; (B) is in
compliance with all Environmental Laws and (C) has not resulted in Material
Environmental Contamination of the Property;
(ii) no
Environmental Activity has occurred or is occurring on any property in the
vicinity of the Property which has resulted in Material Environmental
Contamination of the Property; and
(iii) the
Property is in compliance with (and at all times during the development and
construction thereof) was in compliance with all Laws related to (A) applicable
protected habitat and species, (B) tree mitigation and impervious coverage
rules
of the City of Austin, Texas and Xxxxxx County, Texas, and (C) any applicable
Laws related to any applicable aquifer recharge zone.
Section
9.2 Environmental
Covenants.
(a) Borrower
will not cause or permit any Material Environmental Contamination of the
Property. Borrower shall, at all times during the term of the Loan, comply
with
(and upon request by Xxxxxx, deliver evidence of compliance to Lender) all
Laws
related to (A) applicable protected habitat and species, (B) tree mitigation
and
impervious coverage rules of the City of Austin, Texas and Xxxxxx County,
Texas,
and (C) any applicable Laws related to any applicable aquifer recharge
zone.
(b) No
Environmental Activity will occur on the Property other than the use, storage
and disposal of Hazardous Materials which (A) is in the ordinary course of
business consistent with the Permitted Use; (B) is in compliance with all
Environmental Laws; and (C) does not create a risk of Material Environmental
Contamination of the Property.
(c) Borrower
will notify Xxxxxx immediately upon Borrower becoming aware of (i) any Material
Environmental Contamination of the Property or (ii) any Environmental Activity
with respect to the Property that is not in accordance with the preceding
subsection (b). Borrower promptly will deliver to Lender copies of all documents
delivered to or received by Xxxxxxxx regarding the matters set forth in this
subsection, including notices of Proceedings or investigations concerning
any
Material Environmental Contamination of the Property or Environmental Activity
or concerning Xxxxxxxx’s status as a potentially responsible party (as defined
in the Environmental
19
Laws).
Borrower’s notification of Lender in accordance with the provisions of this
subsection will not be deemed to excuse any default under the Loan Documents
resulting from the violation of Environmental Laws or the Material Environmental
Contamination of the Property or Environmental Activity that is the subject
of
the notice. If Xxxxxxxx receives notice of a suspected violation of
Environmental Laws in the vicinity of the Property that poses a risk of Material
Environmental Contamination of the Property, Borrower will give Lender notice
and copies of any documents received relating to such suspected
violation.
(d) From
time
to time at Xxxxxx’s request, Borrower will deliver to Lender any information
known and documents available to Borrower relating to the environmental
condition of the Property.
(e) Lender
may perform or engage an independent consultant to perform an assessment
of the
environmental condition of the Property and of Borrower’s compliance with this
Section on an annual basis, or at any other time for reasonable cause, or
after
an Event of Default. In connection with the assessment: (i) Lender or consultant
may enter and inspect the Property and perform tests of the air, soil, ground
water and building materials; (ii) Borrower will cooperate and use best efforts
to cause tenants and other occupants of the Property to cooperate with Lender
or
consultant; (iii) Borrower will receive a copy of any final report prepared
after the assessment, to be delivered to Borrower not more than 10 days after
Borrower requests a copy and executes Lender’s standard confidentiality and
waiver of liability letter; (iv) Borrower will accept custody of and arrange
for
lawful disposal of any Hazardous Materials required to be disposed of as
a
result of the tests; (v) Lender will not have liability to Borrower with
respect
to the results of the assessment; and (vi) Lender will not be responsible
for
any damage to the Property resulting from the tests described in this subsection
and Borrower will look solely to the consultants to reimburse Borrower for
any
such damage. The consultant’s assessment and reports will be at Borrower’s
expense (i) if the reports disclose any material adverse change in the
environmental condition of the Property from that disclosed in the Environmental
Report; (ii) if Xxxxxx engaged the consultant when Xxxxxx had reasonable
cause
to believe Borrower was not in compliance with the terms of this Article
and,
after written notice from Xxxxxx, Borrower failed to provide promptly reasonable
evidence that Borrower is in compliance; or (iii) if Lender engaged the
consultant after the occurrence of an Event of Default.
(f) If
Lender
has reasonable cause to believe that there is Environmental Activity at the
Property, Lender may elect in its sole discretion to direct the Trustee to
reconvey any portion of the Property affected by the Environmental Activity
and
Borrower will accept the reconveyance.
20
ARTICLE
X
FINANCIAL
REPORTING
Section
10.1 Financial
Reporting.
(a) Borrower
will deliver to Lender within 120 days after the close of each Fiscal Year
an
annual financial statement (the “Annual
Financial Statement”)
for
the Property (and, upon request by Xxxxxx, Borrower) for the Fiscal Year,
which
will include a comparative balance sheet, a cash flow statement, an income
and
expense statement, a detailed breakdown of all receipts and expenses and
all
supporting schedules. The Annual Financial Statement will be:
(i) certified
to be true and correct in all material respects by the Chief Financial Officer
of Stratus Properties Inc.; and after an Event of Default, audited by a
CPA;
(ii) accompanied
by a statement from the Chief Financial Officer of Stratus Properties Inc.
(and,
after an Event of Default, an opinion of the CPA) that, in all material
respects, the Annual Financial Statement fairly presents the financial position
of the Property; and
(iii) separate
and distinct from any consolidated statement or report for Borrower or any
other
entity or any other property.
In
addition, on or before May 1 of each year, Borrower shall deliver to Lender
an
audited annual financial statement of Stratus Properties Inc. audited by
a
CPA.
(b) Borrower
will keep full and accurate Financial Books and Records for each Fiscal Year.
Borrower will permit Lender or Xxxxxx’s accountants or auditors to inspect or
audit the Financial Books and Records from time to time and without notice.
Borrower will maintain the Financial Books and Records for each Fiscal Year
for
not less than 3 years after the date Borrower delivers to Lender the Annual
Financial Statement and the other financial certificates, statements and
information to be delivered to Lender for the Fiscal Year. Financial Books
and
Records will be maintained at Borrower’s address set forth in the section
entitled “Notices”
or
at
any other location as may be approved by Lender.
Section
10.2 Annual
Budget.
Not
less than 60 days prior to the end of each Fiscal Year, Borrower will deliver
to
Lender a detailed comparative budget (the “Budget”)
for
the Property for the next succeeding Fiscal Year showing anticipated operating
expenses, Insurance Premiums, Impositions, leasing commissions, capital
improvement costs, tenant improvement costs and any other information Lender
requests. Unless Lender notifies Borrower within 60 days after Xxxxxx receives
the Budget that Xxxxxx disputes information in the Budget, the Budget as
submitted will constitute the Budget for the next succeeding Fiscal Year.
If
Xxxxxxxx concludes in good faith that a Budget needs material revision, Borrower
will submit a revised Budget to Lender, together with a detailed explanation
of
the revisions. Unless Lender notifies Borrower within 60 days after Xxxxxx
receives the revised Budget that Lender disputes
21
information
in the revised Budget, the revised Budget as submitted will constitute the
Budget for the remainder of the then Fiscal Year. Borrower and Xxxxxx will
use
reasonable efforts to resolve promptly any differences over a Budget or revised
Budget. If Borrower and Xxxxxx fail to agree on a Budget or revised Budget,
Borrower will continue to manage and operate the Property under the last
undisputed Budget. Borrower waives any defense or right of offset to the
Obligations, and any claim or counterclaim against Lender, arising out of
any
discussions between Borrower and Lender regarding any Budget or revised Budget
delivered to Lender or the resolution of any disagreements relating to a
Budget
or revised Budget including any defense, right of offset, claim or counterclaim
alleging in substance, that by virtue of such delivery, discussions or
resolution, Xxxxxx has interfered with, influenced or controlled Borrower
or the
operations at the Property.
Section
10.3 Certificate
of Good Standing.
Borrower will cause to be delivered to Lender, together with the annual
financial statement required to be delivered hereunder, or as otherwise
requested by Xxxxxx from time to time, a chief executive officer certificate
addressed to Xxxxxx, certifying the location of its
chief
executive office if Xxxxxxxx is a general partnership.
ARTICLE
XI
EXPENSES
AND DUTY TO DEFEND
Section
11.1 Payment
of Expenses.
(a) Borrower
is obligated to pay all reasonable fees and expenses (the “Expenses”)
incurred by Lender or Trustee or that are otherwise payable in connection
with
the Loan, the Property or Borrower, including reasonable attorneys’ fees and
expenses and any fees and expenses relating to (i) the preparation, execution,
acknowledgment, delivery and recording or filing of the Loan Documents; (ii)
any
Proceeding or other claim asserted against Lender or any Proceeding described
in
the Section entitled “Lender’s
Right to Appear”;
(iii)
any inspection, assessment, survey and test permitted under the Loan Documents
except to the extent the same is specifically proscribed as a Lender expense
herein; (iv) any Destruction Event; (v) the preservation of Trustee’s title,
Xxxxxx’s security and the exercise of any rights or remedies available at Law,
in equity or otherwise; (vi) administration of the Loan; (vii) the Leases
and
the Property Documents; and (viii) any Proceeding in or for bankruptcy,
insolvency, reorganization or other debtor relief or similar Proceeding relating
to Borrower, the Property or any person liable under any guarantee, indemnity
or
other credit enhancement delivered in connection with the Loan.
(b) Borrower
will pay the Expenses immediately on demand, together with any applicable
interest. If Xxxxxx pays any of the Expenses, Xxxxxxxx will reimburse Lender
the
amount paid by Xxxxxx immediately upon demand, together with interest on
such
amount at the Default Interest Rate from the date Lender paid the Expenses
through and including the date Borrower reimburses Lender. The Expenses,
together with any applicable interest, constitute a portion of the Debt secured
by this Deed of Trust.
22
Section
11.2 Duty
to Defend.
If
Lender or the Trustee or any of its trustees, officers, participants, employees
or affiliates or the Trustee is a party in any Proceeding relating to the
Property, Borrower or the Loan, Borrower will indemnify and hold harmless
the
party and will defend the party with attorneys and other professionals retained
by Xxxxxxxx and approved by Xxxxxx. Lender or the Trustee, as the case may
be,
may elect to engage its own attorneys and other professionals, at Xxxxxxxx’s
expense, to defend or to assist in the defense of the party. In all events,
case
strategy will be determined by Lender if Lender so elects and no Proceeding
will
be settled without Xxxxxx’s prior approval which may be withheld in its sole
discretion.
ARTICLE
XII
TRANSFERS,
LIENS AND ENCUMBRANCES
Section
12.1 Borrower
Composition.
(a) Borrower
represents, warrants and covenants that:
(i) Borrower
is a Texas limited partnership. The sole general partner of Borrower is
Escarpment Village Management, L.L.C., a Texas limited liability company
(“Management”).
The
sole member of Management is Circle C Land, L.P., a Texas limited partnership
(“CC
Land”).
The
sole general partner of CC Land is Circle C GP, L.L.C., a Delaware limited
liability company (“CC
GP”),
and
the sole limited partner is _____________________. The sole member of CC
GP is
Stratus Properties, Inc., a Delaware corporation.
Management
is herein sometimes referred to as the “Existing
General Partners.”
(ii) If
Xxxxxxxx’s general partners are in turn partnerships, corporations or limited
liability companies, the general partners, principals or members thereof
and the
percentage of the partnership interests, stock or membership interests held
by
each (and so on at each level) shall be owned, directly or indirectly, by
Stratus Properties, Inc.
(iii) So
long
as the capital stock or other securities of Stratus Properties Inc. are publicly
traded, the term “Transfer” is not intended to include, and shall not be
interpreted to include, ordinary market transactions in such publicly traded
Stratus Properties, Inc. securities, including sales, transfers and other
dispositions thereof. However, the term “Transfer” does include all other
transfers in such securities, including, but not limited to, mergers,
consolidations, share exchanges, or business combinations of, by or involving
Stratus Properties, Inc., regardless of the form of such
transaction.
Section
12.2 Permitted
Transfers.
(a) Notwithstanding
anything to the contrary contained in the Section entitled “Events of Default”,
a Permitted Transfer may occur without Xxxxxx’s prior consent and will not
constitute an Event of Default provided
that the
following conditions are met:
23
(i) at
least
30 days prior to the proposed Permitted Transfer, Xxxxxxxx delivers to Lender
a
notice that is sufficiently detailed to enable Lender to determine that the
proposed Permitted Transfer complies with the terms of this
Section;
(ii) there
is
no default under the Loan Documents either when Lender receives the notice
or
when the proposed Permitted Transfer occurs;
(iii) the
proposed Permitted Transfer will not result in a violation of any of the
covenants contained in the Section entitled, “ERISA
Compliance”
and
Borrower will deliver to Lender such documentation of compliance as Lender
requests in its sole discretion;
(iv) when
Lender receives the notice and when the proposed Permitted Transfer occurs,
the
transferee has never been an adverse party to Lender in any litigation to
which
Lender was a party; the transferee has never defaulted on a loan from Lender
or
on any contract or other agreement with Lender; and the transferee has never
threatened litigation against Lender (for purposes of this subsection
“transferee” includes the transferee’s constituent entities at all levels and
“Lender” includes Lender’s subsidiaries); the transferee is free from
bankruptcy; transferee (including any affiliates of the transferee) is not
a
Prohibited Person and is not in violation of any Laws relating to terrorism
or
money laundering and Borrower provides Lender with a certification to that
effect executed by an entity satisfactory to Lender;
(v) Borrower
pays all of Xxxxxx’s expenses relating to the Transfer including Xxxxxx’s
attorneys’ fees;
(vi) Xxxxxx
is
satisfied that the Property will continue to be managed by a manager
satisfactory to Xxxxxx;
(vii) On
the
date of the proposed Permitted Transfer, if so requested by Xxxxxx, a Uniform
Commercial Code search report is delivered to Lender relating to (i) the
transferee, (ii) any predecessor entity that transferee merged with or into,
and
(iii) any entity where transferee acquired substantially all of its assets,
in
each case satisfactory to Lender and indicating that Xxxxxx’s security interest
in such portion of the Property as is perfected by filing a financing statement
is prior to all other security interests reflected in the report;
and
(viii) Borrower
pays to Lender a transfer fee of one percent (1%) of the outstanding Principal,
plus Lender’s processing and legal fees.
(b) Upon
compliance with the conditions set forth in the preceding subsection, the
following Transfers (the “Permitted
Transfers”)
may
occur without Lender’s prior consent and will not constitute Events of
Default:
(i) a
one-time sale of the Property to an unaffiliated bona fide purchaser, and
the
following conditions are met:
24
a) the
transferee has a net worth of at least $38,000,000.00;
b) the
transferee is an Institutional Investor or a developer or manager of first-class
commercial real estate comparable to the Property and having a reputation
in the
industry at least equivalent to that of Borrower as of the date of this Deed
of
Trust;
c) the
transferee has expressly assumed the obligations of Borrower under the Property
Documents and under the Loan Documents;
d) subsequent
to the Transfer, the Property is managed by a property manager of first-class
commercial real estate comparable to the Property for not less than 10 years
and
having a reputation in the industry at least equivalent to that of Borrower
or
the existing property manager as of the Closing and otherwise satisfactory
to
Lender;
e) Borrower
delivers to Lender a substitute for the environmental indemnity delivered
to
Lender in connection with the Loan and, if applicable, a substitute guaranty
or
surety instrument, satisfactory to Lender, executed by a substitute indemnitor,
guarantor or surety, as the case may be, satisfactory to Lender in its sole
discretion; provided, with respect to the net worth requirements of the
substitute indemnitor/guarantor for a substitute indemnitor/guarantor that
meets
the net worth requirements of 12.2(b)(i)(a), approval of the net worth
requirements for such substitute indemnitor/guarantor shall not be unreasonably
withheld, but with respect to other factors, such approval shall be in Xxxxxx’s
sole discretion; and
f) Upon
satisfaction of the requirements in 12.2(a) and 12.2(b)(i)(a)-(e), the
then-existing guarantor under the guaranty and indemnitor under the
environmental indemnity shall be released from any liability arising solely
from
post-transfer events and circumstances.
Section
12.3 Right
to Contest Liens.
Borrower, at its own expense, may contest the amount, validity or application,
in whole or in part, of any mechanic’s, materialmen’s or environmental liens in
which event Lender will refrain from exercising any of the Remedies,
provided
that the
following conditions are met:
(i) Xxxxxxxx
delivers to Lender notice of the proposed contest not more than 30 days after
the lien is filed;
(ii) the
contest is by a Proceeding promptly initiated and conducted in good faith
and
with due diligence unless a bond, as contemplated in Section
12.3(vi)
below
effectively prevents attachment of the lien to the Property;
(iii) there
is
no Event of Default other than the Event of Default arising from the filing
of
the lien;
25
(iv) either
the Proceeding or the bond contemplated in Section
12.3(vi)
effectively suspends enforcement or collection of the lien, imposition of
criminal or civil penalties and sale or forfeiture of the Property and Lender
will not be subject to any civil suit;
(v) the
Proceeding is permitted under and is conducted in accordance with the Leases
and
the Property Documents;
(vi) Borrower
furnishes a bond in the amount required by law in accordance with the Texas
Property Code, as amended such that the lien attaches only to the bond and
not
to the Property or, at Xxxxxx’s option, other security satisfactory to Lender,
in either case in an amount sufficient to pay the claim giving rise to the
lien,
together with all interest and penalties, or Borrower pays the contested
lien
under protest; and
(vii) with
respect to an environmental lien, Xxxxxxxx is using best efforts to mitigate
or
prevent any deterioration of the Property resulting from the alleged violation
of any Environmental Laws or the alleged Environmental Activity.
ARTICLE
XIII
ADDITIONAL
REPRESENTATIONS, WARRANTIES
AND
COVENANTS FURTHER ASSURANCES
(a) Borrower
will execute, acknowledge and deliver to Lender or to any other entity Lender
designates any additional or replacement documents and perform any additional
actions that Lender determines are reasonably necessary to evidence, perfect
or
protect Xxxxxx’s first lien on and prior security interest in the Property or to
carry out the intent or facilitate the performance of the provisions of the
Loan
Documents.
(b) Xxxxxxxx
appoints Xxxxxx as Xxxxxxxx’s attorney-in-fact to perform, at Xxxxxx’s election,
any actions and to execute and record any of the additional or replacement
documents referred to in this Section, in each instance only at Xxxxxx’s
election and only to the extent Borrower has failed to comply with the terms
of
this Section.
Section
13.2 Estoppel
Certificates.
(a) Within
10
days of Xxxxxx’s request, Borrower will deliver to Lender or to any entity
Lender designates a certificate certifying (i) the original principal amount
of
the Note; (ii) the unpaid principal amount of the Note; (iii) the Fixed Interest
Rate; (iv) the amount of the then current Debt Service Payments; (v) the
Maturity Date; (vi) the date a Debt Service Payment was last made; (vii)
that,
except as may be disclosed in the statement, there are no defaults or events
which, with the passage of time or the giving of notice, would constitute
an
Event of Default; and (viii) there are, except as may be
26
disclosed
in the statement, no offsets or defenses against any portion of the Obligations
except as may be disclosed in the statement.
(b) If
Lender
requests, Borrower promptly will deliver to Lender or to any entity Lender
designates a certificate from each party to any Property Document (provided,
for
each party that is not related to or affiliated with Seller or its Members,
Borrower shall only be obligated to use its commercially reasonable efforts
to
deliver such statement), certifying that the Property Document is in full
force
and effect with no defaults or events which, with the passage of time or
the
giving of notice, would constitute an event of default under the Property
Document and that there are no defenses or offsets against the performance
of
its obligations under the Property Document, or noting specifically any
discrepancies with the foregoing.
(c) If
Lender
requests, Borrower promptly will deliver to Lender, or to any entity Lender
designates, a certificate from each tenant under a Lease then affecting the
Property, certifying to any facts regarding the Lease as Lender may require,
including that the Lease is in full force and effect with no defaults or
events
which, with the passage of time or the giving of notice, would constitute
an
event of default under the Lease by any party, that the rent has not been
paid
more than one month in advance and that the tenant claims no defense or offset
against the performance of its obligations under the Lease, or noting
specifically any discrepancies with the foregoing.
Section
13.3 Credit
Enhancements.
Borrower will maintain in good standing all credit enhancement documents
delivered to Lender in connection with the Loan throughout the Term or such
shorter or longer period as Borrower and Lender may have agreed to in writing.
Credit enhancement documents include any letters of credit, cash deposits,
pledges, guarantees or indemnities delivered to Lender in connection with
the
Loan but excluding any letters of credit, promissory notes or cash deposits
delivered to Lender as good faith or standby fees in connection with Xxxxxx’s
agreement to make the Loan. If the provider of any credit enhancement document
becomes insolvent, commences or is the target of a Proceeding in bankruptcy
or
ceases to exist or if Lender determines that the provider’s insolvency is
imminent, Borrower will deliver to Lender a replacement credit enhancement
document within seven (7) Business Days of the date insolvency is known,
the
Proceeding in bankruptcy is filed, the cessation occurs or Lender gives Borrower
notice that Lender has determined the provider’s insolvency is imminent. The
replacement credit enhancement document will be satisfactory to Lender from
an
alternate provider satisfactory to Lender. Upon receipt of the replacement,
Xxxxxx will deliver promptly to Borrower the credit enhancement document
being
replaced.
ARTICLE
XIV
DEFAULTS
AND REMEDIES
Section
14.1 Events
of Default.The
term
“Event
of Default”
means
the occurrence of any of the following events:
(i) if
Borrower fails to pay any amount due, as and when required, under any Loan
Document and the failure continues for a period of 5 days;
27
(ii) if
Xxxxxxxx makes a general assignment for the benefit of creditors or generally
is
not paying, or is unable to pay, or admits in writing its inability to pay,
its
debts as they become due; or if Borrower or any other party commences any
Proceeding (A) relating to bankruptcy, insolvency, reorganization,
conservatorship or relief of debtors, in each instance with respect to Borrower;
(B) seeking to have an order for relief entered with respect to Xxxxxxxx;
(C)
seeking attachment, distraint or execution of a judgment with respect to
Xxxxxxxx; (D) seeking to adjudicate Borrower as bankrupt or insolvent; (E)
seeking reorganization, arrangement, adjustment, winding-up, liquidation,
dissolution, composition or other relief with respect to Borrower or Xxxxxxxx’s
debts; or (F) seeking appointment of a Receiver, trustee, custodian, conservator
or other similar official for Borrower or for all or any substantial part
of
Borrower’s assets, provided
that if
the Proceeding is commenced by a party other than Borrower or any of Borrower’s
general partners or members, Borrower will have 120 days to have the Proceeding
dismissed or discharged before an Event of Default occurs;
(iii) if
Borrower is in default beyond any applicable grace and cure period under
any
other mortgage, deed of trust, deed to secure debt or other security agreement
encumbering the Property whether junior or senior to the lien of this Deed
of
Trust;
(iv) if
there
is a default beyond any applicable grace and cure period under any indemnity
or
guaranty in favor of Xxxxxx delivered to Lender in connection with the Loan
or
in connection with any loan cross-collateralized with the Loan;
(v) except
as
otherwise specifically set forth in this Deed of Trust, if Borrower or its
partners, members or principals to, effect a Transfer without Lender’s prior
approval, which may be withheld in Lender’s sole discretion or if Borrower fails
to keep the Property free from all liens and encumbrances other than the
lien of
this Deed of Trust and the Permitted Exceptions, Borrower acknowledging that
in
making the Loan, Lender is relying to a material extent on the business
expertise and net worth of Borrower and Xxxxxxxx’s general partners, members or
principals and on the continuing interest that each of them has, directly
or
indirectly, in the Property;
(vi) if
a
Transfer occurs except in accordance with the provisions of this Deed of
Trust;
(vii) if
Borrower abandons the Property or ceases to conduct its business at the
Property; or
(viii) if
there
is a default in the performance of any other provision of any Loan Document
or
if there is any inaccuracy or falsehood in any representation or warranty
contained in any Loan Document which is not remedied within 30 days after
Borrower receives notice thereof, provided
that if
the default, inaccuracy or falsehood is of a nature that it cannot be cured
within
28
the
30-day period and during that period Xxxxxxxx commences to cure, and thereafter
diligently continues to cure, the default, inaccuracy or falsehood, then
the
30-day period will be extended for a reasonable period not to exceed 120
days
after the notice to Borrower.
Section
14.2 Remedies.
(a) If
an
Event of Default occurs, Lender may take any of the following actions (the
“Remedies”)
without notice (notice of intention to accelerate and notice of acceleration
being waived by Borrower) to Borrower:
(i) declare
all or any portion of the Debt immediately due and payable (“Acceleration”);
(ii) pay
or
perform any Obligation;
(iii) institute
a Proceeding for the specific performance of any Obligation;
(iv) apply
for
and obtain the appointment of a Receiver to be vested with the fullest powers
permitted by Law, without bond being required, which appointment may be made
ex parte,
as a
matter of right and without regard to the value of the Property, the amount
of
the Debt or the solvency of Borrower or any other person liable for the payment
or performance of any portion of the Obligations;
(v) directly,
by its agents or representatives or through a Receiver appointed by a court
of
competent jurisdiction, enter on the Land and Improvements, take possession
of
the Property, dispossess Borrower and exercise Xxxxxxxx’s rights with respect to
the Property, either in Borrower’s name or otherwise;
(vi) institute
a Proceeding for the foreclosure of this Deed of Trust or, sell by power
of sale
all or any portion of the Property as more particularly described in Section
14.4 below;
(vii) institute
proceedings for the partial foreclosure of this Deed of Trust for the portion
of
the Debt then due and payable, subject to the continuing lien of this Deed
of
Trust for the balance of the Debt not then due;
(viii) exercise
any and all rights and remedies granted to a secured party under the Uniform
Commercial Code; and
(ix) pursue
any other right or remedy available to Lender at Law, in equity or
otherwise.
29
(b) If
an
Event of Default occurs, the license granted to Borrower in the Loan Documents
to collect Rents will terminate automatically without any action required
of
Lender.
Section
14.3 General
Provisions Pertaining to Remedies.
(a) The
Remedies are cumulative and may be pursued by Lender or Trustee concurrently
or
otherwise, at such time and in such order as Lender or Trustee may determine
in
their sole discretion and without presentment, demand, protest, notice of
acceleration, notice of intention to accelerate or further notice of any
kind,
all of which are expressly waived by Borrower.
(b) The
enumeration in the Loan Documents of specific rights or powers will not be
construed to limit any general rights or powers or impair Lender’s or Trustee’s
rights with respect to the Remedies.
(c) If
Lender
or Trustee exercises any of the Remedies, Xxxxxx will not be deemed a
mortgagee-in-possession unless Xxxxxx has elected affirmatively to be a
mortgagee-in-possession.
(d) Lender
and Trustee will not be liable for any act or omission of Lender or Trustee
in
connection with the exercise of the Remedies.
(e) Xxxxxx’s
and Trustee’s right to exercise any Remedy will not be impaired by any delay in
exercising or failure to exercise the Remedy and the delay or failure will
not
be construed as extending any cure period or constitute a waiver of the default
or Event of Default.
(f) If
an
Event of Default occurs, Lender’s payment or performance or acceptance of
payment or performance will not be deemed a waiver or cure of the Event of
Default.
(g) Xxxxxx’s
acceptance of partial payment or receipt of Rents will not extend or affect
any
grace period or constitute a waiver of a default or Event of Default or
constitute a rescission of Acceleration.
Section
14.4 Foreclosure
by Power of Sale.
Trustee, his successor or substitute, is authorized and empowered and it
will be
his special duty at the request of Xxxxxx to sell the Property 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 Property is situated, at public venue
to
the highest bidder for cash. The sale shall take place at such area of the
courthouse as will be properly designated from time to time by the commissioners
court (or, if not so designated by the commissioners court, at the courthouse
door) of the specified county, between the hours of 10 o’clock a.m. and 4
o’clock p.m. (the commencement of such sale to occur within three (3) hours
following the time designated in the hereinafter described notice of sale
as the
earliest time at which such sale will occur, if required by applicable laws)
on
the first Tuesday in any month after having given notice of such sale at
least
twenty-one (21) days before the day of sale of the time, place and terms
of said
sale (including the earliest time at which such sale will occur) in accordance
with the
30
statutes
of the State of Texas then in force governing sales of real estate under
powers
conferred by deeds of trust. Notice of a sale of all or part of the Property
by
Trustee will be given by posting written notice thereof at the courthouse
door
(or other area in the courthouse as may be designated for such public notices)
of the county in which the sale is to be made, and by filing a copy of the
notice in the office of the county clerk of the county in which the sale
is to
be made at least twenty-one (21) days preceding the date of the sale, and
if the
Property to be sold is in more than one county, a notice shall be posted
at the
courthouse door and filed with the county clerk of each county in which the
Property is situated. In addition, Lender will, at least twenty-one (21)
days
preceding the date of sale, serve written notice of the proposed sale by
certified mail on Borrower, and each debtor obligated to pay the Debt or
any
portion thereof according to the records of Lender. Service of such notice
will
be completed upon deposit of the notice, enclosed in a postpaid certified
mail
wrapper, properly addressed to Borrower, and each such debtor at the most
recent
address as shown by the records of Lender, in a post office or official
depository under the care and custody of the United States Postal Service.
The
affidavit of any person having knowledge of the facts to the effect that
such
service was completed will be prima facie evidence of the fact of service.
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 Property
will
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 Property is sold; and, if the proceeds of such sale of less than the
whole
of the Property is less than the aggregate of the Debt and the expense of
executing this trust as provided herein, this Deed of Trust and the lien
hereof
will remain in full force and effect as to the unsold portion of the Property
just as though no sale had been made; provided, however, that Borrower will
never have any right to require the sale of less than the whole of the Property
but Lender will have the right, at its sole election, to request Trustee
to sell
less than the whole of the Property. After each sale, Trustee will 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 or leasehold, as the case may be, with general warranty of title,
and
will receive the proceeds of said sale or sales and apply the same as herein
provided. Payment of the purchase price to Trustee will satisfy the obligation
of purchaser at such sale therefor, and such purchaser will not be responsible
for the application thereof. The power of sale granted herein will not be
exhausted by any sale held hereunder by Trustee or his substitute or successor,
and such power of sale may be exercised from time to time and as many times
as
Lender may deem necessary until all of the Property has been duly sold and
all
the Debt has been fully paid. If any sale hereunder is not completed or is
defective in the opinion of Xxxxxx, such sale will not exhaust the power
of sale
hereunder and Xxxxxx will have the right to cause a subsequent sale or sales
to
be made hereunder. 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 Debt, or as to the occurrence of any Event
of
Default, or as to Lender having declared all of the Debt 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 Xxxxxx or by Trustee or any substitute
or
successor, will be taken as prima facie evidence of the truth of the facts
so
stated and recited. Xxxxxxx, his successor or substitute, may
31
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 conducting of sales, but in the name and on behalf of Trustee,
his successor or substitute.
Section
14.5 General
Provisions Pertaining to Receiver and other Remedies.
(a) If
an
Event of Default occurs, any court of competent jurisdiction will, upon
application by Xxxxxx, appoint a Receiver as designated in the application
and
issue an injunction prohibiting Borrower from interfering with the Receiver,
collecting Rents, disposing of any Rents or any part of the Property, committing
waste or doing any other act that will tend to affect the preservation of
the
Leases, the Rents, and the Property and Borrower approves the appointment
of the
designated Receiver or any other Receiver appointed by the court. Xxxxxxxx
agrees that the appointment may be made ex parte
and as a
matter of right to Lender or Trustee, either before or after sale of the
Property, without further notice, and without regard to the solvency or
insolvency, at the time of application for the Receiver, of the person or
persons, if any, liable for the payment of any portion of the Debt and the
performance of any portion of the Obligations and without regard to the value
of
the Property or whether the Property is occupied as a homestead and without
bond
being required of the applicant.
(b) The
Receiver will be vested with the fullest powers permitted by Law including
all
powers necessary or usual in similar cases for the protection, possession
and
operation of the Property and all the powers and duties of Xxxxxx as a
mortgagee-in-possession as provided in this Deed of Trust and may continue
to
exercise all the usual powers and duties until the Receiver is discharged
by the
court.
(c) In
addition to the Remedies and all other available rights, Lender or the Receiver
may take any of the following actions:
(i) take
exclusive possession, custody and control of the Property and manage the
Property so as to prevent waste;
(ii) require
Borrower to deliver to Lender or the Receiver all keys, security deposits,
operating accounts, prepaid Rents, past due Rents, the Books and Records
and all
original counterparts of the Leases and the Property Documents;
(iii) collect,
xxx for and give receipts for the Rents and, after paying all expenses of
collection, including reasonable receiver’s, broker’s and attorney’s fees, apply
the net collections to any portion of the Debt selected by Xxxxxx in its
sole
discretion,
(iv) enter
into, xxxxxx, extend, enforce, terminate, renew or accept surrender of Xxxxxx
and evict tenants except that in the case of a Receiver, such actions may
be
taken only with the written consent of Xxxxxx as provided in this Deed of
Trust
and in the Assignment;
32
(v) enter
into, modify, extend, enforce, terminate or renew Property Documents except
that
in the case of a Receiver, such actions may be taken only with the written
consent of Xxxxxx as provided in this Deed of Trust and in the
Assignment;
(vi) appear
in
and defend any Proceeding brought in connection with the Property and bring
any
Proceeding to protect the Property as well as Xxxxxxxx’s and Xxxxxx’s respective
interests in the Property (unless any such Proceeding has been assigned
previously to Lender in the Assignment, or if so assigned, Xxxxxx has not
expressly assigned such Proceeding to the Receiver and consented to such
appearance or defense by the Receiver); and
(vii) perform
any act in the place of Borrower that Lender or the Receiver deems necessary
(A)
to preserve the value, marketability or rentability of the Property; (B)
to
increase the gross receipts from the Property; or (C) otherwise to protect
Borrower’s and Xxxxxx’s respective interests in the Property.
(d) Effective
upon an Event of Default, Borrower appoints Xxxxxx as Xxxxxxxx’s
attorney-in-fact, at Xxxxxx’s election, to perform any actions and to execute
and record any instruments necessary to effectuate the actions described
in this
Section, in each instance only at Xxxxxx’s election and only to the extent
Xxxxxxxx has failed to comply with the provisions of this Section.
Section
14.6 General
Provisions Pertaining to Foreclosures and the Power of Sale.
Except
to the extent provided otherwise in Section 14.4, the following provisions
will
apply to any Proceeding to foreclose and to any sale of the Property by power
of
sale or pursuant to a judgment of foreclosure and sale:
(i) Lender’s
or Trustee’s right to institute a Proceeding to foreclose or to sell by power of
sale will not be exhausted by a Proceeding or a sale that is defective or
not
completed;
(ii) any
sale
may be postponed or adjourned by Lender by public announcement at the time
and
place appointed for the sale without further notice;
(iii) with
respect to any sale pursuant to a judgment of foreclosure and sale or by
power
of sale, the Property may be sold as an entirety or in parcels, at one or
more
sales, at the time and place, on terms and in the order that Xxxxxx deems
expedient in its sole discretion;
(iv) if
a
portion of the Property is sold pursuant to this Article, the Loan Documents
will remain in full force and effect with respect to any unmatured portion
of
the Debt and this Deed of Trust will continue as a valid and enforceable
first
lien on and security interest in the remaining portion of the Property, subject
only to the Permitted Exceptions, without loss of priority and without
impairment of any of Lender’s or Trustee’s rights and remedies with respect to
the unmatured portion of the Debt;
33
(v) Lender
may bid for and acquire the Property at a sale and, in lieu of paying cash,
may
credit the amount of Lender’s bid against any portion of the Debt selected by
Lender in its sole discretion after deducting from the amount of Lender’s bid
the expenses of the sale, costs of enforcement and other amounts that Lender
is
authorized to deduct at Law, in equity or otherwise; and
(vi) Xxxxxx’s
receipt of the proceeds of a sale will be sufficient consideration for the
portion of the Property sold and Lender will apply the proceeds as set forth
in
this Deed of Trust.
Section
14.7 Application
of Proceeds.
Lender
may apply the proceeds of any sale of the Property by power of sale or pursuant
to a judgment of foreclosure and sale and any other amounts collected by
Lender
in connection with the exercise of the Remedies to payment of the Debt in
such
priority and proportions as Lender may determine in its sole discretion or
in
such priority and proportions as required by Law.
Section
14.8 Power
of Attorney.
Effective upon an Event of Xxxxxxx, Borrower appoints Xxxxxx as Xxxxxxxx’s
attorney-in-fact to perform any actions necessary and incidental to exercising
the Remedies.
Section
14.9 Tenant
at Sufferance.
If
Lender, Trustee, or a Receiver enters the Property in the exercise of the
Remedies and Borrower is allowed to remain in occupancy of the Property,
Borrower will pay to Lender, Trustee, or the Receiver, as the case may be,
in
advance, a reasonable rent for the Property occupied by Xxxxxxxx. If Xxxxxxxx
fails to pay the rent, Borrower may be dispossessed by the usual Proceedings
available against defaulting tenants.
Section
14.10 State
Laws Pertaining to Remedies.
(a) In
addition to the rights and powers of sale granted under the preceding
Subsection
14.4,
if any
Event of Default occurs concerning the payment of any installment of the
Obligations, Lender, at its option, at once or at any time thereafter while
any
matured installment remains unpaid, without declaring the entire Obligations
to
be due and payable, may orally or in writing direct the Trustee to enforce
this
trust and to sell the Property subject to such unmatured indebtedness and
the
assignments, liens, and security interests securing its payment, in the same
manner, on the same terms, at the same place and time and after having given
notice in the same manner, all as provided in the preceding provisions of
Section
14.4.
After
such sale, the Trustee will make due conveyance to the purchaser or purchasers.
Sales made without maturing the Obligations may be made hereunder whenever
there
occurs an Event of Default in the payment of any installment of the Obligations
without exhausting the power of sale granted hereby, and without affecting
in
any way the power of sale granted under this Section
14.10(a),
the
unmatured balance of the Obligations (except as to any proceeds of any sale
which Lender may apply as a prepayment of the Obligations) or the assignments,
liens and security interests securing payment of the Obligations.
(b) It
is
intended by each of the foregoing provisions of Section
14.4 and 14.10(a)
that
Trustee may, after any request or direction by Xxxxxx, sell not only the
Land
34
and
Improvements but also the Collateral and other interests constituting a part
of
the Property, or any part thereof, along with the Land and Improvements,
or any
part thereof, all as a unit and as a part of a single sale, or may sell any
part
of the Property separately from the remainder of the Property. The sale or
sales
by Trustee of less than the whole of the Property will 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 Property is sold; and
if
the proceeds of such sale or sales of less than the whole of such Property
is
less than the aggregate of the Obligations and the expense of executing this
trust, this Deed of Trust and the assignments, liens, and security interests
hereof will remain in full force and effect as to the unsold portion of the
Property just as though no sale or sales of less than the whole of the Property
had occurred, but Lender will have the right, at its sole election, to request
Trustee to sell less than the whole of the Property.
(c) Borrower
and Lender agree that, in any assignments, deeds, bills of sale, notice of
sale,
or postings, given by Trustee or Lender, any and all statements of fact or
other
recitals therein made as to the identity of Xxxxxx, or as to the occurrence
or
existence of any Event of Default, or as to the acceleration of the Maturity
Date, or as to the request to sell, posting of notice of sale, notice of
sale,
time, place, terms and manner of sale and receipt, distribution and application
of the money realized therefrom, or as to the due and proper appointment
of a
substitute trustee and without being limited by the foregoing, as to any
other
act or thing having been duly done by Xxxxxx or by Trustee, will be taken
by all
courts of law and equity as prima facie
evidence
that the said statements or recitals state facts and are without further
question to be so accepted, and Xxxxxxxx hereby ratifies and confirms any
and
all acts that Trustee may lawfully do in the premises by virtue
hereof.
(d) In
the
event of the resignation or death of Trustee, or Trustee’s failure, refusal or
inability, for any reason, to make any such sale or to perform any of the
trusts
herein declared, or, at the option of Lender, without cause, Lender may appoint,
orally or in writing, a substitute trustee, who will thereupon succeed to
all
the estates, titles, rights, powers, and trusts herein granted to and vested
in
Trustee. If Xxxxxx is a corporation, such appointment may be made on behalf
of
such Lender by any person who is then the president, or a vice-president,
assistant vice-president, treasurer, cashier, secretary, or any other authorized
officer or agent of Xxxxxx. In the event of the resignation or death of any
substitute trustee, or such substitute trustee’s failure, refusal or inability
to make any such sale or perform such trusts, or, at the option of Lender,
without cause, successive substitute trustees may thereafter, from time to
time,
be appointed in the same manner. Wherever herein the word “Trustee”
used,
the same means the person who is the duly appointed trustee in the first
paragraph of this Deed of Trust or substitute trustee hereunder at the time
in
question.
(e) Lender
may, or Trustee may upon written request of Xxxxxx, proceed by suit or suits,
at
law or in equity, to enforce the payment and performance of the Obligations
in
accordance with the terms hereof or of the Note or the other Loan Documents,
to
foreclose or otherwise enforce the assignments, liens, and security interests
created or evidenced by the other Loan Documents, or this Deed of Trust as
35
against
all, or any part of, the Property, and to have all or any part of the Property
sold under the judgment or decree of a court of competent
jurisdiction.
(f) To
the
extent permitted by law, Xxxxxx, as a matter of right without notice to Xxxxxxxx
and without regard to the sufficiency of the security, and without any showing
of insolvency, fraud, or mismanagement on the part of Borrower, and without
the
necessity of filing any judicial or other proceeding other than the proceeding
for appointment of a receiver, will be entitled to the appointment of a receiver
or receivers of the Property, or any part thereof, and of the income, rents,
issues, and profits thereof.
(g) To
the
extent permitted by Law, Lender may enter upon the Land, take possession
of the
Property and remove the Collateral or any part thereof, with or without judicial
process, and, in connection therewith, without any responsibility or liability
on the part of Lender, take possession of any property located on or in the
Land
which is not a part of the Property and hold or store such property at
Borrower’s expense.
(h) Lender
may require Borrower to assemble the Collateral, or any part thereof, and
make
it available to Lender at a place to be designated by Lender which is reasonably
convenient to Borrower and Lender.
(i) After
notification, if any, hereafter provided in this Subsection, Lender may,
or the
Trustee may, upon request of Lender, sell, lease, or otherwise dispose of,
at
the office of Lender, or on the Land, or elsewhere as chosen by Lender, all
or
any part of the Collateral, in its then condition, or following any commercially
reasonable preparation or processing, and each “Sale”
(as
used herein, the term “Sale”
means
any such sale, lease, or other disposition made pursuant to this Section
4.10(i))
may be
as a unit or in parcels, by public or private proceedings, and by way of
one or
more contracts, and, at any Sale, it will not be necessary to exhibit the
Collateral, or part thereof, being sold. The Sale of any part of the Collateral
shall not exhaust Lender’s power of Sale, but Sales may be made, from time to
time, until the Obligations are paid and performed in full. Reasonable
notification of the time and place of any public Sale pursuant to this Section,
or reasonable notification of the time after which any private Sale is to
be
made pursuant to this Subsection, will be sent to Borrower and to any other
person entitled to notice under Chapter 9 of the Uniform Commercial Code;
provided, that if the Collateral being sold, or any part thereof, is perishable,
or threatens to decline speedily in value, or is of a type customarily sold
on a
recognized market, Lender may sell, lease, or otherwise dispose of such
Collateral without notification, advertisement or other notice of any kind.
It
is agreed that notice sent or given not less than ten (10) calendar days
prior
to the taking of the action to which the notice relates, is reasonable
notification and notice for the purposes of this Section.
(j) Lender
may retain the Collateral in satisfaction of the Obligations whenever the
circumstances are such that Lender is entitled to do so under the Uniform
Commercial Code, and Lender unequivocally and expressly confirms in writing
that
Xxxxxx’s intention is to retain such Collateral in full satisfaction of the
Obligations.
36
(k) Lender
may buy the Property, or any part thereof, at any public Sale or judicial
Sale
(including any Sale of the Collateral as contemplated in Section
4.10(i)
hereof).
(l) Lender
may buy the Collateral, or any part thereof, at any private Sale if the
Collateral, or part thereof, being sold is a type customarily sold in a
recognized market or a type which is the subject of widely distributed standard
price quotations.
(m) Lender
will have and may exercise any and all other rights and remedies which Lender
may have at law or in equity, or by virtue of any other security instrument,
or
under the Uniform Commercial Code, or otherwise.
(n) Notwithstanding
anything contained herein to the contrary, pursuant to TEX. BUS & COM. CODE
XXX. §9.604 (a) (Xxxxxx 2002), Lender may proceed under Chapter 9 of the Uniform
Commercial Code as to all personal property covered hereby without prejudicing
any rights with respect to the real property or, at Lender’s election, Xxxxxx
may proceed as to both the real and personal property covered hereby in
accordance with Xxxxxx’s rights and remedies in respect of real property, in
which case the provisions of Chapter 9 of the Uniform Commercial Code (and
Section
4.10(i)
hereof)
will not apply.
(o) If
Lender
is the purchaser of the Property, or any part thereof, at any sale thereof
(including any Sale of the Collateral as contemplated in Section
4.10(i)
hereof),
whether such sale be under the power of sale hereinabove vested in Trustee,
or
upon any other foreclosure or enforcement of the assignments, liens, and
security interests hereof, or otherwise, Lender shall, upon any such purchase,
acquire good title to the Property so purchased, free of the assignments,
liens,
and security interests of these presents.
(p) This
Deed
of Trust is 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 the Property or
any
portion thereof in any manner permitted by the laws of Texas and any other
state
in which any part of the Property is situated. Any foreclosure suit may be
brought by Trustee or Lender. If a foreclosure hereunder is commenced by
Trustee, Lender may, at any time before the sale, direct the Trustee to abandon
the sale, and may then institute suit for the collection of the Obligations,
and
for the foreclosure or enforcement of the assignments, liens, and security
interests hereof. If Lender should institute a suit for the collection of
the
Obligations, and for a foreclosure or enforcement of the assignments, liens,
and
security interests hereof, it may, at any time before the entry of a final
judgment in said suit, dismiss the same, and require Trustee to sell the
Property, or any part thereof, in accordance with the other provisions of
this
Deed of Trust.
Section
14.11 Waiver
of Deficiency Statute.
(a) In
the
event an interest in any of the Property is foreclosed upon pursuant to a
judicial or nonjudicial foreclosure sale, Xxxxxxxx agrees as follows:
Notwithstanding the provisions of Sections 51.003, 51.004, and 51.005 of
the Texas Property Code (as the same may be amended from time to time), and
to
the extent
37
permitted
by Xxx, Xxxxxxxx agrees that, subject to the provisions of Article XV hereof,
Xxxxxx shall be entitled to seek a deficiency judgment from Borrower and
any
other party obligated on the Note equal to the difference between the amount
owing on the Note and the amount for which the Property was sold pursuant
to
judicial or nonjudicial foreclosure sale. Borrower expressly recognizes that
this Section constitutes a waiver of the above-cited provisions of the Texas
Property Code which would otherwise permit Borrower and other persons against
whom recovery of deficiencies is sought (even absent the initiation of
deficiency proceedings against them) to present competent evidence of the
fair
market value of the Property as of the date of the foreclosure sale and offset
against any deficiency the amount by which the foreclosure sale price is
determined to be less than such fair market value. Xxxxxxxx further recognizes
and agrees that this waiver creates an irrebuttable presumption that the
foreclosure sale price is equal to the fair market value of the Property
for
purposes of calculating deficiencies owed by Xxxxxxxx and others against
whom
recovery of a deficiency is sought.
(b) Alternatively,
in the event the waiver provided for in subsection (a) above is determined
by a court of competent jurisdiction to be unenforceable, the following shall
be
the basis for the finder of fact’s determination of the fair market value of the
Property as of the date of the foreclosure sale in proceedings governed by
Sections 51.003, 51.004 and 51.005 of the Texas Property Code (as amended
from time to time): (i) the Property shall be valued in an “as is”
condition as of the date of the foreclosure sale, without any assumption
or
expectation that the Property will be repaired or improved in any manner
before
a resale of the Property after foreclosure; (ii) the valuation shall be
based upon an assumption that the foreclosure purchaser desires a resale
of the
Property for cash promptly (but no later than twelve (12) months) following
the
foreclosure sale; (iii) all reasonable closing costs customarily borne by
the seller in commercial real estate transactions should be deducted from
the
gross fair market value of the Property, including, without limitation,
brokerage commissions, title insurance, a survey of the Property, tax
prorations, attorneys’ fees, and marketing costs; (iv) the gross fair
market value of the Property shall be further discounted to account for any
estimated holding costs associated with maintaining the Property pending
sale,
including, without limitation, utilities expenses, property management fees,
taxes and assessments (to the extent not accounted for in (iii) above), and
other maintenance, operational and ownership expenses; and (v) any expert
opinion testimony given or considered in connection with a determination
of the
fair market value of the Property must be given by persons having at least
five
(5) years experience in appraising property similar to the Property and who
have
conducted and prepared a complete written appraisal of the Property taking
into
consideration the factors set forth above.
ARTICLE
XV
LIMITATION
OF LIABILITY
Section
15.1 Limitation
of Liability.
(a) Notwithstanding
any provision in the Loan Documents to the contrary, except as set forth
in
subsections (b) and (c), if Xxxxxx seeks to enforce the collection of
38
the
Debt,
Xxxxxx will foreclose this Deed of Trust instead of instituting suit on the
Note. If a lesser sum is realized from a foreclosure of this Deed of Trust
and
sale of the Property than the then outstanding Debt, Xxxxxx will not institute
any Proceeding against Borrower or Borrower’s general partners, if any, for or
on account of the deficiency, except as set forth in subsections (b) and
(c).
(b) The
limitation of liability in subsection (a) will not affect or impair (i) the
lien
of this Deed of Trust or Lender’s other rights and Remedies under the Loan
Documents, including Xxxxxx’s right as mortgagee or secured party to commence an
action to foreclose any lien or security interest Lender has under the Loan
Documents; (ii) the validity of the Loan Documents or the Obligations; (iii)
Lender’s rights under any Loan Document that are not expressly non-recourse; or
(iv) Lender’s right to present and collect on any letter of credit or other
credit enhancement document held by Lender in connection with the
Obligations.
(c) The
following are excluded and excepted from the limitation of liability in
subsection (a) and Xxxxxx may recover personally against Borrower and its
general partners, if any, for the following:
(i) all
losses suffered and liabilities and expenses incurred by Lender relating
to any
fraud or intentional misrepresentation or omission by Borrower or any of
Borrower’s partners, members, officers, directors, shareholders or principals in
connection with (A) the performance of any of the conditions to Lender making
the Loan; (B) any inducements to Lender to make the Loan; (C) the execution
and
delivery of the Loan Documents; (D) any certificates, representations or
warranties given in connection with the Loan; or (E) Borrower’s performance of
the Obligations;
(ii) all
Rents
derived from the Property after a default under the Loan Documents which
default
is a basis of a Proceeding by Lender to enforce collection of the Debt and
all
moneys that, on the date such a default occurs, are on deposit in one or
more
accounts used by or on behalf of Borrower relating to the operation of the
Property, except to the extent properly applied to payment of Debt Service
Payments, Impositions, Insurance Premiums and any reasonable and customary
expenses incurred by Borrower in the operation, maintenance and leasing of
the
Property or delivered to Lender;
(iii) the
cost
of remediation of any Environmental Activity affecting the Property, any
diminution in the value of the Property arising from any Environmental Activity
affecting the Property and any other losses suffered and liabilities and
expenses incurred by Xxxxxx relating to a default under the Article entitled
“Environmental”;
(iv) all
security deposits collected by Borrower or any of Borrower’s predecessors and
not refunded to Tenants in accordance with their respective Leases, applied
in
accordance with the Leases or Law or delivered to Lender, and all rents
collected by Borrower or any of Borrower’s predecessors more than 30
39
days
in
advance and not applied in accordance with the Leases or delivered to Lender;
provided, however, that nothing contained herein shall limit Borrower’s or
general partners’ liability under clause (ii) above;
(v) the
replacement cost of any Fixtures or Personal Property removed from the Property
after a default occurs (which is not cured within any applicable grace or
cure
period) and not replaced as required by the Loan Documents);
(vi) all
losses suffered and liabilities and expenses incurred by Xxxxxx relating
to any
acts or omissions by Borrower that result in waste (including economic and
non-physical waste) on the Property;
(vii) all
protective advances and other payments made by Lender pursuant to express
provisions of the Loan Documents to protect Xxxxxx’s security interest in the
Property or to protect the assignment of the property described in and effected
by the Assignment, but only to the extent that the Rents would have been
sufficient to permit Borrower to make the payment and Borrower failed to
do
so;
(viii) all
mechanics’ or similar liens relating to work performed on or materials delivered
to the Property prior to Lender exercising its Remedies, but only to the
extent
Lender had advanced funds to pay for the work or materials;
(ix) all
Proceeds that are not applied in accordance with this Deed of Trust or not
paid
to Lender as required under this Deed of Trust;
(x) all
losses suffered and liabilities and expenses incurred by Xxxxxx relating
to a
Transfer that is not permitted under the Section entitled “Permitted
Transfers”
including the prohibition on any Transfer that results in a violation of
ERISA
or any anti-terrorism or money laundering laws.
(xi) all
losses suffered and liabilities and expenses incurred by Xxxxxx relating
to
forfeiture or threatened forfeiture of the Property to the
Government;
(xii) all
losses suffered and liabilities and expenses incurred by Lender relating
to any
default by Borrower under any of the provisions of this Deed of Trust relating
to ERISA; and
(xiii) all
losses suffered and liabilities and expenses incurred by Xxxxxx relating
to any
default under any of the provisions of this Deed of Trust relating to
anti-terrorism or money laundering.
(d) Nothing
under subparagraph (a) above will be deemed to be a waiver of any right which
Lender may have under Section 506(a), 506(b), 1111(b) or any other provisions
of
the Bankruptcy Code or under any other Law relating to bankruptcy or insolvency
to file a claim for the full amount of the Debt or to require that all
collateral will continue to secure all of the Obligations in accordance with
the
Loan Documents.
40
ARTICLE
XVI
WAIVERS
Section
16.1 WAIVER
OF STATUTE OF LIMITATIONS.
TO THE EXTENT PERMITTED BY LAW, XXXXXXXX WAIVES THE RIGHT TO CLAIM ANY STATUTE
OF LIMITATIONS AS A DEFENSE TO BORROWER’S PAYMENT AND PERFORMANCE OF THE
OBLIGATIONS.
Section
16.2 WAIVER
OF NOTICE.
TO THE EXTENT PERMITTED BY LAW, BORROWER WAIVES THE RIGHT TO RECEIVE ANY
NOTICE
FROM LENDER OR TRUSTEE WITH RESPECT TO THE LOAN DOCUMENTS EXCEPT FOR THOSE
NOTICES THAT LENDER OR TRUSTEE IS EXPRESSLY REQUIRED TO DELIVER PURSUANT
TO THE
LOAN DOCUMENTS.
Section
16.3 WAIVER
OF MARSHALLING AND OTHER MATTERS.
TO THE EXTENT PERMITTED BY LAW, BORROWER WAIVES THE BENEFIT OF ANY RIGHTS
OF
MARSHALLING OR ANY OTHER RIGHT TO DIRECT THE ORDER IN WHICH ANY OF THE PROPERTY
WILL BE (i) SOLD; OR (ii) MADE AVAILABLE TO ANY ENTITY IF THE PROPERTY IS
SOLD
BY POWER OF SALE OR PURSUANT TO A JUDGMENT OF FORECLOSURE AND SALE. XXXXXXXX
ALSO WAIVES THE BENEFIT OF ANY LAWS RELATING TO APPRAISEMENT, VALUATION,
STAY,
EXTENSION, REINSTATEMENT, MORATORIUM, HOMESTEAD AND EXEMPTION RIGHTS OR A
SALE
IN INVERSE ORDER OF ALIENATION.
Section
16.4 WAIVER
OF TRIAL BY JURY.
TO THE EXTENT PERMITTED BY LAW, XXXXXXXX WAIVES TRIAL BY JURY IN ANY PROCEEDING
BROUGHT BY, OR AGAINST, OR COUNTERCLAIM OR CROSS-COMPLAINT ASSERTED BY OR
AGAINST, XXXXXX OR TRUSTEE RELATING TO THE LOAN, THE PROPERTY DOCUMENTS OR
THE
LEASES.
Section
16.5 WAIVER
OF COUNTERCLAIM.
TO THE EXTENT PERMITTED BY LAW, BORROWER WAIVES THE RIGHT TO ASSERT A
COUNTERCLAIM OR CROSS-COMPLAINT, OTHER THAN COMPULSORY OR MANDATORY
COUNTERCLAIMS OR CROSS-COMPLAINTS, IN ANY PROCEEDING XXXXXX OR TRUSTEE BRINGS
AGAINST BORROWER RELATING TO THE LOAN, INCLUDING ANY PROCEEDING TO ENFORCE
REMEDIES.
Section
16.6 WAIVER
OF JUDICIAL NOTICE AND HEARING.
TO THE EXTENT PERMITTED BY LAW, BORROWER WAIVES ANY RIGHT BORROWER MAY HAVE
UNDER LAW TO NOTICE OR TO A JUDICIAL HEARING PRIOR TO THE EXERCISE OF ANY
RIGHT
OR REMEDY PROVIDED BY THE LOAN DOCUMENTS TO XXXXXX AND BORROWER WAIVES THE
RIGHTS, IF ANY, TO SET ASIDE OR INVALIDATE ANY SALE DULY CONSUMMATED IN
ACCORDANCE WITH THE PROVISIONS OF THE LOAN DOCUMENTS ON THE
41
GROUND
(IF SUCH BE THE CASE) THAT THE SALE WAS CONSUMMATED WITHOUT A PRIOR JUDICIAL
HEARING.
Section
16.7 WAIVER
OF SUBROGATION.
BORROWER WAIVES ALL RIGHTS OF SUBROGATION TO XXXXXX’S RIGHTS OR CLAIMS RELATED
TO OR AFFECTING THE PROPERTY OR ANY OTHER SECURITY FOR THE LOAN UNTIL THE
LOAN
IS PAID IN FULL AND ALL FUNDING OBLIGATIONS UNDER THE LOAN DOCUMENTS HAVE
BEEN
TERMINATED.
Section
16.8 GENERAL
XXXXXX.
XXXXXXXX ACKNOWLEDGES THAT (A) BORROWER AND XXXXXXXX’S PARTNERS, MEMBERS OR
PRINCIPALS, AS THE CASE MAY BE, ARE KNOWLEDGEABLE BORROWERS OF COMMERCIAL
FUNDS
AND EXPERIENCED REAL ESTATE DEVELOPERS OR INVESTORS WHO UNDERSTAND FULLY
THE
EFFECT OF THE ABOVE PROVISIONS; (B) LENDER WOULD NOT MAKE THE LOAN WITHOUT
THE
PROVISIONS OF THIS ARTICLE; (C) THE LOAN IS A COMMERCIAL OR BUSINESS LOAN
UNDER
THE LAWS OF THE STATE OR COMMONWEALTH WHERE THE PROPERTY IS LOCATED NEGOTIATED
BY XXXXXX AND BORROWER AND THEIR RESPECTIVE ATTORNEYS AT ARMS LENGTH; AND
(D)
ALL WAIVERS BY XXXXXXXX IN THIS ARTICLE HAVE BEEN MADE VOLUNTARILY,
INTELLIGENTLY AND KNOWINGLY, AFTER XXXXXXXX FIRST HAS BEEN INFORMED BY COUNSEL
OF XXXXXXXX’S OWN CHOOSING AS TO POSSIBLE ALTERNATIVE RIGHTS, AND HAVE BEEN MADE
AS AN INTENTIONAL RELINQUISHMENT AND ABANDONMENT OF A KNOWN RIGHT AND PRIVILEGE.
THE FOREGOING ACKNOWLEDGMENT IS MADE WITH THE INTENT THAT LENDER AND ANY
SUBSEQUENT HOLDER OF THE NOTE WILL RELY ON THE
ACKNOWLEDGMENT.
ARTICLE
XVII
NOTICES
Section
17.1 Notices.
Except
for foreclosure notices and notices of sale which will be sent as required
by
the Texas Property Code, as amended, all acceptances, approvals, consents,
demands, notices, requests, waivers and other communications (the “Notices”)
required or permitted to be given under the Loan Documents must be in writing
and (a) delivered personally by a process server providing a sworn declaration
evidencing the date of service, the individual served, and the address where
the
service was made; (b) sent by certified mail, return receipt requested; or
(c)
delivered by nationally recognized overnight delivery service that provides
evidence of the date of delivery (for next morning delivery if sent by overnight
delivery service), in all cases with charges prepaid addressed to the
appropriate party at its address listed below:
42
If
to Lender:
|
Teachers
Insurance and Annuity
Association
of America
000
Xxxxx Xxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
|
Attention:
Director of Portfolio Management
Mortgage
and Real Estate Division
Domestic
Portfolio - West
Authorization
ID#AAA4442
Investment
ID#M-0005934
|
|
with
a courtesy copy to:
|
Teachers
Insurance and Annuity
Association
of America
000
Xxxxx Xxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attention:
Managing Counsel, Investment
Management
Law, New York
Authorization
ID#AAA4442
Investment
ID#M-0005934
|
If
to Borrower:
|
c/o
Stratus Properties, Inc.
00
Xxx Xxxxxxx Xxxx., Xxxxx 000
Xxxxxx,
Xxxxx 00000
Attention:
Xxxx X. Xxxxx
|
with
a courtesy copy to:
|
Ambrust
& Xxxxx, L.L.P.
000
Xxxxxxxx, Xxxxx 0000
Xxxxxx,
Xxxxx 00000
Attention:
Xxx Xxxxx
|
Xxxxxx
and Borrower each may change from time to time the address to which Notices
must
be sent, by notice given in accordance with the provisions of this Section.
All
Notices given in accordance with the provisions of this Section will be deemed
to have been received on the earliest of (i) actual receipt; (ii) Borrower’s or
Lender’s, as applicable, rejection of delivery; or (iii) 3 Business Days after
having been deposited in any mail depository regularly maintained by the
United
States postal service, if sent by certified mail, or 1 Business Day after
having
been deposited with a nationally recognized overnight delivery service, if
sent
by overnight delivery or on the date of personal service, if served by a
process
server.
Section
17.2 Change
in Borrower’s Legal Name, Place of Business or State of
Formation.
Borrower will notify Xxxxxx in writing prior to any change in Borrower’s legal
name, place of business, including as a result of, or in connection with,
any
Transfer, including any Permitted Transfer.
43
ARTICLE
XVIII
MISCELLANEOUS
Section
18.1 Applicable
Law.
The
Loan Documents are governed by and will be construed in accordance with the
Laws
of the state or commonwealth in which the Property is located without regard
to
conflict of law provisions, except to the extent that the Uniform Commercial
Code requires otherwise.
Section
18.2 Usury
Limitations.
All
agreements between Borrower and Lender, whether now existing or hereafter
arising and whether written or oral, are hereby limited so that in no
contingency, whether by reason of acceleration of the maturity hereof or
otherwise, will the interest contracted for, charged or received by Lender
exceed the maximum amount permissible under applicable law. If, from any
circumstance whatsoever, interest would otherwise be payable to Lender in
excess
of the maximum lawful amount, the interest payable to Lender will be reduced
to
the maximum amount permitted under applicable law; and if from any circumstance
Lender will ever receive anything of value deemed interest by applicable
Law in
excess of the maximum lawful amount, an amount equal to any excessive interest
shall be applied to the reduction of the principal portion of the Debt and
Obligations and not to the payment of interest, or if such excessive interest
exceeds the unpaid principal portion of the Debt and Obligations, such excess
will be refunded to Borrower. All interest paid or agreed to be paid to Lender
will, to the extent permitted by applicable law, be amortized, prorated,
allocated, and spread throughout the full period until payment in full of
the
principal (including the period of any renewal or extension hereof) so that
the
interest hereon for such full period will not exceed the maximum amount
permitted by applicable Law. This paragraph will control all agreements between
Borrower and Lender.
Section
18.3 Xxxxxx’s
Discretion.
Wherever under the Loan Documents any matter is required to be satisfactory
to
Lender, Xxxxxx has the right to approve or determine any matter or Lender
has an
election, Xxxxxx’s approval, determination or election will be made in Xxxxxx’s
reasonable discretion unless expressly provided to the contrary.
Section
18.4 Unenforceable
Provisions.
If any
provision in the Loan Documents is found to be illegal or unenforceable or
would
operate to invalidate any of the Loan Documents, then the provision will
be
deemed expunged and the Loan Documents will be construed as though the provision
was not contained in the Loan Documents and the remainder of the Loan Documents
will remain in full force and effect.
Section
18.5 Survival
of Xxxxxxxx’s Obligations.
Borrower’s representations, warranties and covenants contained in the Loan
Documents will continue in full force and effect and survive (i) release
of the
lien of this property by Xxxxxx; (ii) assignment or other transfer of all
or any
portion of Xxxxxx’s interest in the Loan Documents or the Property; (iii)
Lender’s or Trustee’s exercise of any of the Remedies or any of Lender’s or
Trustee’s other rights under the Loan Documents; (iv) a Transfer (except to the
extent Borrower is expressly released as specifically provided herein); (v)
amendments to the Loan Documents; and (vi) any other act or omission that
might
otherwise be construed as a release or discharge of Borrower (except for
a
specific release or discharge of Borrower).
44
Section
18.6 Relationship
Between Borrower and Lender; No Third Party Beneficiaries.
(a) Lender
is
not a partner of or joint venturer with Borrower or any other entity as a
result
of the Loan or Lender’s rights under the Loan Documents; the relationship
between Xxxxxx and Xxxxxxxx is strictly that of creditor and debtor. Each
Loan
Document is an agreement between the parties to that Loan Document for the
mutual benefit of the parties and no entities other than the parties to that
Loan Document will be a third party beneficiary or will have any claim against
Lender or Borrower by virtue of the Loan Document. As between Lender and
Borrower, any actions taken by Lender under the Loan Documents will be taken
for
Xxxxxx’s protection only, and Xxxxxx has not and will not be deemed to have
assumed any responsibility to Borrower or to any other entity by virtue of
Xxxxxx’s actions.
(b) All
conditions to Xxxxxx’s performance of its obligations under the Loan Documents
are imposed solely for the benefit of Lender. No entity other than Lender
will
have standing to require satisfaction of the conditions in accordance with
their
provisions or will be entitled to assume that Xxxxxx will refuse to perform
its
obligations in the absence of strict compliance with any of the
conditions.
Section
18.7 Partial
Reconveyances or Releases, Extensions, Waivers.
Lender
may: (i) permit the release of any part of the Property or release any entity
obligated for the Obligations; (ii) extend the time for payment or performance
of any of the Obligations or otherwise amend the provisions for payment or
performance by agreement with any entity that is obligated for the Obligations
or that has an interest in the Property; (iii) accept additional security
for
the payment and performance of the Obligations; and (iv) waive any entity’s
performance of an Obligation, release any entity or individual now or in
the
future liable for the performance of the Obligation or waive the exercise
of any
Remedy or option. Lender may exercise any of the foregoing rights without
notice, without regard to the amount of any consideration given, without
affecting the priority of the Loan Documents, without releasing any entity
not
specifically released from its obligations under the Loan Documents, without
releasing any guarantor(s) or surety(ies) of the Obligations, without effecting
a novation of the Loan Documents and, with respect to a waiver, without waiving
future performance of the Obligation or exercise of the Remedy
waived.
Section
18.8 Service
of Process.
Borrower irrevocably consents to service of process by registered or certified
mail, postage prepaid, return receipt requested, to Borrower at its address
set
forth in the Article entitled “Notices”.
Section
18.9 Entire
Agreement.
Oral
agreements or commitments between Borrower and Lender to lend money, to extend
credit or to forbear from enforcing repayment of a debt, including promises
to
extend or renew the debt, are not enforceable. Any agreements among Borrower,
Lender and Trustee relating to the Loan are contained in the Loan Documents,
which contain the complete and exclusive statement of the agreements among
Borrower, Lender and Trustee, except as Xxxxxxxx, Lender and, if applicable,
Trustee may later agree in writing to amend the Loan Documents. The language
of
each Loan Document will be construed as a whole according to its fair meaning
and will not be construed against the party by or for whom it was
drafted.
45
Section
18.10 No
Oral Amendment.
The
Loan Documents may not be amended, waived or terminated orally or by any
act or
omission made individually by Xxxxxxxx, Lender or Trustee but may be amended,
waived or terminated only by a written document signed by the party against
which enforcement of the amendment, waiver or termination is
sought.
Section
18.11 Lost
or Destroyed Note.
If the
Note is lost, mutilated, destroyed or stolen, Xxxxxxxx will deliver to Lender
a
new, substitute note containing the same provisions as the Note, provided
that
Borrower is furnished with reasonably satisfactory evidence of the loss,
mutilation, destruction or theft of the Note.
Section
18.12 Covenants
Run with the Land.
Subject
to the restrictions on transfer contained in the Article entitled “TRANSFERS,
LIENS AND ENCUMBRANCES”,
all of
the covenants of this Deed of Trust and the Assignment run with the Land,
will
bind all parties hereto and all tenants and subtenants of the Land or the
Improvements and their respective heirs, executors, administrators, successors
and assigns, and all occupants and subsequent owners of the Property, and
will
inure to the benefit of Lender and all subsequent holders of the Note and
this
Deed of Trust.
Section
18.13 Time
of the Essence.
Time is
of the essence with respect to Xxxxxxxx’s payment and performance of the
Obligations.
Section
18.14 Subrogation.
If the
Principal or any other amount advanced by Lender is used directly or indirectly
to pay off, discharge or satisfy all or any part of an encumbrance affecting
the
Property, then Lender is subrogated to the encumbrance and to any security
held
by the holder of the encumbrance, all of which will continue in full force
and
effect in favor of Lender as additional security for the
Obligations.
Section
18.15 Joint
and Several Liability.
If
Borrower consists of more than one person or entity, the obligations and
liabilities of each such person or entity under this Deed of Trust are joint
and
several.
Section
18.16 Successors
and Assigns.
The
Loan Documents bind the parties to the Loan Documents and their respective
successors, assigns, heirs, administrators, executors, agents and
representatives and inure to the benefit of Xxxxxx and its successors, assigns,
heirs, administrators, executors, agents and representatives and to the extent
applicable inure to the benefit of Trustee and its successors, assigns, heirs,
administrators, executors, agents and representatives.
Section
18.17 Duplicates
and Counterparts.
Duplicate counterparts of any of the Loan Documents, other than the Note,
may be
executed and together will constitute a single original document.
46
ARTICLE
XIX
TRUSTEE
PROVISIONS
Section
19.1 Acceptance
of Trust.
(a) Lender
may from time to time unilaterally substitute a successor to Trustee pursuant
to
a recordable instrument that complies with Law for substitution of Trustees.
The
recorded substitution will be conclusive proof of proper substitution of
trustee
who will, without conveyance from predecessor trustee, succeed to all of
the
predecessor trustee’s title, estate, rights, powers and duties.
(b) Trustee
may resign by an instrument in writing addressed to Xxxxxx, or Trustee may
be
removed at any time with or without cause by an instrument in writing executed
by Xxxxxx. In case of the death, resignation, removal or disqualification
of
Trustee or if for any reason Lender shall deem it desirable to appoint a
substitute or successor Trustee to act instead of the herein named Trustee
or
any substitute or successor Trustee, then Lender shall have the right and
is
hereby authorized and empowered to appoint a successor Trustee, or a substitute
Trustee, without formality other than appointment and designation in writing
executed by Xxxxxx and the authority hereby conferred shall extend to the
appointment of other successor and substitute Trustees successively until
the
Debt has been paid in full or until the Property is sold hereunder. Such
appointment and designation by Xxxxxx shall be full evidence of the right
and
authority to make the same and of all facts therein recited. If Lender is
a
banking association or corporation and such appointment is executed in its
behalf by an officer of such banking association or corporation, such
appointment shall be conclusively presumed to be executed with authority
and
shall be valid and sufficient without proof of any action by the board of
directors or any superior officer of the association or corporation. Upon
the
making of any such appointment and designation, all of the estate and title
of
Trustee in the Property shall vest in the named successor or substitute Trustee
and he shall thereupon succeed to and shall hold, possess and execute all
the
rights, powers, privileges, immunities and duties herein conferred upon Trustee;
but nevertheless, upon the written request of Lender or of the successor
or
substitute Trustee, Trustee ceasing to act shall execute and deliver an
instrument transferring to such successor or substitute Trustee all of the
estate and title in the Property of Trustee so ceasing to act, together with
all
the rights, powers, privileges, immunities and duties herein conferred upon
Trustee, and shall duly assign, transfer and deliver any of the properties
and
moneys held by said Trustee hereunder to said successor or substitute Trustee.
All references herein to Trustee shall be deemed to refer to Trustee (including
any successor or substitute appointed and designated as herein provided)
from
time to time acting hereunder. Borrower hereby ratifies and confirms any
and all
acts which the herein named Trustee or his successor or successors, substitute
or substitutes, in this trust, shall do lawfully by virtue hereof.
(c) TRUSTEE
SHALL NOT BE LIABLE FOR ANY ERROR OF JUDGMENT OR ACT DONE BY TRUSTEE IN GOOD
FAITH, OR BE OTHERWISE RESPONSIBLE OR ACCOUNTABLE UNDER ANY CIRCUMSTANCES
47
WHATSOEVER
(INCLUDING, WITHOUT LIMITATION, TRUSTEE’S NEGLIGENCE), EXCEPT FOR TRUSTEE’S
GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. Trustee shall have the right to rely
on
any instrument, document or signature authorizing or supporting any action
taken
or proposed to be taken by him hereunder, believed by him in good faith to
be
genuine. All moneys received by Trustee shall, until used or applied as herein
provided, be held in trust for the purposes for which they were received,
but
need not be segregated in any manner from any other moneys (except to the
extent
required by law), and Trustee shall be under no liability for interest on
any
moneys received by him hereunder.
ARTICLE
XX
INDEMNIFICATION
Section
20.1 Indemnity.
XXXXXXXX SHALL INDEMNIFY, DEFEND, PROTECT AND HOLD HARMLESS LENDER AND TRUSTEE,
THEIR RESPECTIVE PARENTS, SUBSIDIARIES, DIRECTORS, OFFICERS, EMPLOYEES,
REPRESENTATIVES, AGENTS, SUCCESSORS, AND ASSIGNS FROM AND AGAINST ANY AND
ALL
LIABILITY, DAMAGE, LOSS, COST, OR EXPENSE (INCLUDING, WITHOUT LIMITATION,
ATTORNEYS’ FEES AND EXPENSES), IN CONNECTION WITH ANY ACTION, PROCEEDING, CLAIM
OR DISPUTE INCURRED OR SUFFERED BY THE FOREGOING PARTIES SO INDEMNIFIED,
WHETHER
VOLUNTARILY OR INVOLUNTARILY INCURRED OR SUFFERED (BUT NOT TO THE EXTENT
SUFFERED OR INCURRED AS THE RESULT OF A BREACH OF THE PROVISIONS OF THIS
DEED OF
TRUST BY THE PARTY ASSERTING INDEMNIFICATION), IN RESPECT OF THE
FOLLOWING:
(a) ANY
LITIGATION CONCERNING THIS DEED OF TRUST, THE OTHER LOAN DOCUMENTS OR THE
PROPERTY, OR ANY INTEREST OF BORROWER OR LENDER THEREIN, OR THE RIGHT OF
OCCUPANCY THEREOF BY BORROWER OR LENDER, WHETHER OR NOT ANY SUCH LITIGATION
IS
PROSECUTED TO A FINAL, NON-APPEALABLE JUDGMENT;
(b) ANY
DISPUTE, INCLUDING DISPUTES AS TO THE DISBURSEMENT OF PROCEEDS OF THE NOTE
NOT
YET DISBURSED, AMONG OR BETWEEN ANY OF THE CONSTITUENT PARTIES OR OTHER PARTNERS
OR VENTURERS OF BORROWER IF BORROWER IS A GENERAL OR LIMITED PARTNERSHIP,
OR
AMONG OR BETWEEN ANY EMPLOYEES, OFFICERS, DIRECTORS, SHAREHOLDERS, MEMBERS
OR
MANAGERS OF BORROWER IF BORROWER IS A CORPORATION OR LIMITED LIABILITY COMPANY,
OR AMONG OR BETWEEN ANY MEMBERS, TRUSTEES OR OTHER RESPONSIBLE PARTIES IF
BORROWER IS AN ASSOCIATION, TRUST OR OTHER ENTITY;
(c) ANY
ACTION TAKEN OR NOT TAKEN BY LENDER OR TRUSTEE WHICH IS ALLOWED OR PERMITTED
UNDER THIS DEED OF TRUST OR ANY OF THE OTHER LOAN DOCUMENTS RELATING TO
BORROWER, THE PROPERTY, ANY CONSTITUENT PARTIES OR OTHERWISE IN CONNECTION
WITH
THE LOAN DOCUMENTS, INCLUDING WITHOUT LIMITATION, THE
48
PROTECTION
OR ENFORCEMENT OF ANY LIEN, SECURITY INTEREST OR OTHER RIGHT, REMEDY OR RECOURSE
CREATED OR AFFORDED BY THIS DEED OF TRUST OR THE OTHER LOAN DOCUMENTS;
AND
(d) ANY
ACTION BROUGHT BY XXXXXX OR TRUSTEE AGAINST BORROWER UNDER THIS DEED OF TRUST
OR
THE OTHER LOAN DOCUMENTS AFTER AN EVENT OF DEFAULT, WHETHER OR NOT SUCH ACTION
IS PROSECUTED TO A FINAL, NON-APPEALABLE JUDGMENT.
XXXXXX
AND/OR TRUSTEE MAY EMPLOY AN ATTORNEY OR ATTORNEYS TO PROTEST OR ENFORCE
ITS
RIGHTS, REMEDIES AND RECOURSES UNDER THIS DEED OF TRUST AND THE OTHER LOAN
DOCUMENTS, AND TO ADVISE AND DEFEND XXXXXX AND/OR TRUSTEE WITH RESPECT TO
ANY
SUCH ACTIONS AND OTHER MATTERS. BORROWER SHALL REIMBURSE LENDER AND/OR TRUSTEE
FOR THEIR RESPECTIVE ATTORNEYS’ FEES AND EXPENSES (INCLUDING EXPENSES AND COSTS
FOR EXPERTS) IMMEDIATELY UPON RECEIPT OF A WRITTEN DEMAND THEREFOR (TOGETHER
WITH REASONABLE SUPPORTING DOCUMENTATION), WHETHER ON A MONTHLY OR OTHER
TIME
INTERVAL, AND WHETHER OR NOT AN ACTION IS ACTUALLY COMMENCED OR CONCLUDED.
ALL
OTHER REIMBURSEMENT AND INDEMNITY OBLIGATIONS HEREUNDER SHALL BECOME DUE
AND
PAYABLE WHEN ACTUALLY INCURRED BY XXXXXX AND/OR TRUSTEE. ANY PAYMENTS NOT
MADE
WITHIN FIVE (5) DAYS AFTER WRITTEN DEMAND THEREFOR SHALL BEAR INTEREST AT
THE
DEFAULT INTEREST RATE FROM THE DATE OF SUCH DEMAND UNTIL FULLY PAID. THE
PROVISIONS OF THIS SECTION 20.1 SHALL SURVIVE REPAYMENT OF THE DEBT AND
PERFORMANCE OF THE OBLIGATIONS, THE RELEASE OF THE LIEN OF THIS DEED OF TRUST,
ANY FORECLOSURE (OR ACTION IN LIEU OF FORECLOSURE), THE TRANSFER BY BORROWER
OF
ANY OR ALL OF ITS RIGHT, TITLE AND INTEREST IN OR TO THE PROPERTY AND THE
EXERCISE BY LENDER OF ANY AND ALL REMEDIES SET FORTH HEREIN OR IN THE LOAN
DOCUMENTS. Notwithstanding
anything to the contrary contained herein or in any other Loan Document,
in no
event shall any indemnification of Lender or the other Indemnified Parties
be
applicable to any loss that is the result of the gross negligence or willful
misconduct of Lender or any other indemnified party or that is incurred solely
as a result of acts, omissions, events, facts or circumstances first arising
or
occurring after the date on which the lien of the Deed of Trust is fully
and
finally foreclosed or a conveyance by deed in lieu of foreclosure is fully
and
finally effective and possession of the Property has been given to the purchaser
or grantee free of occupancy, claims of occupancy or redemption by Xxxxxxxx,
except to the extent such acts, omissions, events, facts or circumstances
were
caused in whole or in part by Borrower or any Borrower Party.
49
ARTICLE
XXI
ADDITIONAL
PROVISIONS PERTAINING TO STATE LAWS
IN
WITNESS WHEREOF, Xxxxxxxx has executed and delivered this Deed of Trust as
of
the date first set forth above.
ESCARPMENT
VILLAGE, L.P., a Texas limited partnership
By: Escarpment
Village Management, L.L.C., a Texas
limited
liability company, General Partner
By: Circle
C
Land, L.P., a Texas limited partnership,
Manager
By: Circle
C
GP, L.L.C., a Delaware limited
liability
company, its general partner
By: Stratus
Properties Inc., a Delaware
corporation,
its Manager
By:
/s/ Xxxx X. Xxxxx
Xxxx
X.
Xxxxx
Senior
Vice President
50
STATE
OF
TEXAS §
§
COUNTY
OF
XXXXXX §
The
foregoing instrument was acknowledged before me this 28th day of June, 2006
by
Xxxx X. Xxxxx, Senior Vice President of Stratus Properties Inc., as Manager
of
Circle C GP, L.L.C., a Delaware limited liability company, general partner
of
Circle C Land, L.P., a Texas limited partnership, Manager of Escarpment Village
Management, L.L.C., a Texas limited liability company, general partner of
Escarpment Village, L.P., a Texas limited partnership, on behalf of such
limited
liability companies, and limited partnerships.
/s/
Xxxxx
Xxxx
Notary
Public in and for the State of Texas
51
Exhibit
A
LEGAL
DESCRIPTION
Exhibit
A
Exhibit
B
DEFINITIONS
“Acceleration”
is
defined in Section 14.2(a)(i).
“Accumulations”
is
defined in Section 2.1(xii).
“Accumulations
Depositary”
is
defined in Section 6.2(a).
“Additional
Funds”
is
defined in Section 7.4(v).
“Annual
Financial Statement”
is
defined in Section 10.1(a).
“Assessments”
is
defined as all assessments now or hereafter levied, assessed or imposed against
the Property.
“Assignment”
is
defined as the Assignment of Leases and Rents dated of even date with this
Deed
of Trust made by Borrower for the benefit of Lender.
“Bankruptcy
Code”
means
Title 11 of the United States Code.
“Borrower”
is
defined in the introductory paragraph.
“Budget”
is
defined in Section 10.2.
“Business
Days”
is
defined as any day on which commercial banks are not authorized or required
by
Law to close in New York, New York.
“Casualty”
is
defined as damage to or destruction of the Property by fire or other
casualty.
“Code”
is
defined as the Internal Revenue Code of 1986 and the regulations promulgated
thereunder.
“Collateral”
is
defined as any part of the Property which constitutes personal
property.
“Condemnation”
is
defined as the permanent or temporary taking of all or any portion of the
Property, or any interest therein or right accruing thereto, by the exercise
of
the right of eminent domain (including any transfer in lieu of or in
anticipation of the exercise of the right), inverse condemnation or any similar
injury or damage to or decrease in the value of the Property, including
severance and change in the grade of any streets and a Condemnation will
be
deemed to have occurred on the date title to the property taken passes or
if the
Condemnation is temporary, on the date Borrower no longer has use of the
affected property.
“Condemnation
Awards”
is
defined in Section 2.1(viii).
“Condemnation
Proceeding”
is
defined as a Proceeding that could result in a Condemnation.
B-1
“CPA”
is
defined as an independent certified public accountant satisfactory to
Lender.
“Debt”
is
defined in Section 3.1.
“Debt
Coverage Ratio”
shall
have the meaning assigned to such term in the Assignment.
“Debt
Service Payments”
is
defined as the monthly installments of principal and interest payable by
Borrower to Lender as set forth in the Note.
“Deed
of Trust”
is
defined as this Deed of Trust, Assignment of Leases and Rents, Security
Agreement and Fixture Filing.
“Default
Interest Rate”
is
defined as the lower of 10.5% per annum or the Maximum Interest Rate, if
any.
“Destruction
Event”
is
defined in Section 7.4.
“Environmental
Activity”
is
defined as any actual, suspected or threatened abatement, cleanup, disposal,
generation, handling, manufacture, possession, release, remediation, removal,
storage, transportation, treatment or use of any Hazardous Material. The
actual,
suspected or threatened presence of any Hazardous Material, or the actual,
suspected or threatened noncompliance with any Environmental Laws, will be
deemed Environmental Activity.
“Environmental
Laws”
is
defined as all Laws pertaining to health, safety, protection of the environment,
natural resources, conservation, habitat management and preservation, endangered
species, solid waste disposal, wildlife, waste management, Environmental
Activities and pollution.
“Environmental
Report”
is
defined as the report prepared by _______________ dated __________________,
as
amended.
“ERISA”
is
defined in Section 8.3(a).
“Event
of Default”
is
defined in Section 14.1.
“Executive
Order”
is
defined in Section 8.4.
“Existing
General Partners”
is
Managment.
“Existing
Limited Partners”
is
defined in Section 12.1(b).
“Expenses”
is
defined in Section 11.1(a).
“Financial
Books and Records”
is
defined as detailed accounts of the income and expenses of the Property and
of
Borrower and all other data, records and information that either are
specifically referred to in the Article entitled “FINANCIAL
REPORTING”
or
are
necessary to the preparation of any of the statements, reports or certificates
required under such Article and
B-2
includes
all supporting schedules prepared or used by the CPA in auditing the Annual
Financial Statement or in issuing its opinion.
“Fiscal
Year”
is
defined as any calendar year or partial calendar year during the
Term.
“Fixed
Interest Rate”
is
defined as 5.5% per annum.
“Fixtures”
is
defined as all of the Property that constitutes “fixtures” as defined in the
Uniform Commercial Code.
“Government”
is
defined as any federal, state or municipal governmental or quasi-governmental
authority including any executive, legislative or judicial branch, division
and
any subdivision or agency of any of them and any entity to which any of them
has
delegated authority.
“Hazardous
Materials”
is
defined as (i) any by-product, chemical, compound, contaminant, pollutant,
product, substance, waste or other material that is hazardous or toxic, (ii)
any
by-product, chemical, compound, contaminant, pollutant, product, substance,
waste or other material, the abatement, cleanup, discharge, disposal, emission,
exposure to, generation, handling, manufacture, possession, presence, release,
removal, remediation, storage, transportation, treatment or use of which
is
controlled, prohibited or regulated by any Environmental Laws, including
asbestos, petroleum, petroleum products and polychlorinated biphenyls and
(iii)
mold, mildew, fungi, bacteria, viruses and other microbial matter at the
Property in quantities that are hazardous to human health.
“Imposition
Penalty Date”
is
defined in Section 6.1(a).
“Impositions”
is
defined as all Taxes, Assessments, ground rent, if any, water and sewer rents,
fees and charges, levies, permit, inspection and license fees and other dues,
charges or impositions, including all charges and license fees for the use
of
vaults, chutes and similar areas adjoining the Land, maintenance and similar
charges and charges for utility services, in each instance whether now or
in the
future, directly or indirectly, levied, assessed or imposed on the Property
or
Borrower and whether levied, assessed or imposed as excise, privilege or
property taxes.
“Improvements”
is
defined in Section 2.1(ii).
“Insurance
Premiums”
is
defined as all present and future premiums and other charges due and payable
on
policies of fire, rental value and other insurance covering the Property
and
required pursuant to the provisions of this Deed of Trust.
“Insurance
Proceeds”
is
defined in Section 2.1(ix).
“Insurers”
is
defined in Section 7.1(c).
“Institutional
Investor”
is
defined as any bank, savings institution, charitable foundation, insurance
company, real estate investment trust, pension fund or investment advisor
registered under the Investment Advisors Act of 1940, as amended, and acting
as
trustee or agent.
B-3
“Interest”
is
defined as the fixed interest payable under the Note at the Fixed Interest
Rate
and any other sums which are deemed to be interest under Law.
“Land”
is
defined in the Recitals.
“Late
Charge”
is
defined in the Note.
“Law”
is
defined as all present and future codes, constitutions, cases, opinions,
rules,
manuals, regulations, determinations, laws, orders, ordinances, requirements
and
statutes, as amended, of any Government that affect or that may be interpreted
to affect the Property, Borrower or the Loan, including amendments and all
guidance documents and publications promulgated thereunder.
“Leases”
is
defined as all present and future leases, subleases, licenses and other
agreements for the use and occupancy of the Land and Improvements, any related
guarantees and including any use and occupancy arrangements created pursuant
to
Section 365 (h) of the Bankruptcy Code or otherwise in connection with the
commencement or continuation of any bankruptcy, reorganization, arrangement,
insolvency, dissolution, receivership or similar Proceedings, or any assignment
for the benefit of creditors, in respect of any tenant or other occupant
of the
Land and Improvements.
“Lender”
is
defined in the introductory paragraph.
“Loan”
is
defined in the Recitals.
“Loan
Documents”
is
defined as the Note, this Deed of Trust, the Assignment and all documents
now or
hereafter executed by Borrower or held by Lender or Trustee relating to the
Loan, including all amendments but excluding any indemnities or guaranties
delivered in connection with the Loan.
“Material
Environmental Contamination”
is
defined as contamination of the Property with Hazardous Materials (i) that
constitutes a violation of one or more Environmental Laws; (ii) for which
there
is a significant possibility that remediation will be required under
Environmental Laws; (iii) that results in a material risk of liability or
expense to Lender; or (iv) that diminishes the value of the
Property.
“Maturity
Date”
is
defined in the Recitals.
“Maximum
Interest Rate”
is
defined as the maximum rate of interest, if any, permitted by Law as of the
date
of this Deed of Trust to be charged with respect to the Loan.
“Note”
is
defined in the Recitals.
“Note
Payments”
is
defined in the Note.
“Notices”
is
defined in Section 17.1.
“Obligations”
is
defined in Section 3.1.
B-4
“Permitted
Exceptions”
is
defined as the matters shown in Schedule B, Part 1 and 2 of the title insurance
policy insuring the lien of this Deed of Trust.
“Permitted
Transfers”
is
defined in Section 12.2(b).
“Permitted
Use”
is
defined as use as a first-class shopping center and uses incidentally and
directly related to such use.
“Personal
Property”
is
defined as the Property, other than Fixtures, the Land or the
Improvements.
“Policies”
is
defined in Section 7.1(b).
“Prepayment
Premium”
is
defined in the Note.
“Principal”
is
defined in the Recitals.
“Proceeding”
is
defined as a pending or threatened action, claim or litigation before a legal,
equitable or administrative tribunal having proper jurisdiction.
“Proceeds”
is
defined in Section 7.2(c).
“Prohibited
Person”
is
defined in Section 8.4.
“Property”
is
defined in Section 2.1.
“Property
Documents”
is
defined in Section 2.1(v).
“Receiver”
is
defined as a receiver, custodian, trustee, liquidator or conservator of the
Property.
“Releasing
Escrow”
is
defined as the Tenant Improvement Pledge and Security Agreement between
Borrower, Lender and Xxxxxxxx Xxxxxxxx Xxxxxx, X.X. dated of even date
herein.
“Remedies”
is
defined in Section 14.2(a).
“Rents”
is
defined as all present and future rents, prepaid rents, percentage,
participation or contingent rents, issues, profits, proceeds, parking fees,
revenues and other consideration accruing under or in connection with the
Leases
or otherwise derived from the use and occupancy of the Land or the Improvements,
including tenant contributions to expenses, security deposits and royalties,
if
any, all other fees or payments paid to or for the benefit of Borrower,
including liquidated damages after a default under a Lease, any termination,
cancellation, modification or other fee or premium payable by a tenant for
any
reason, the proceeds of any rental insurance and any payments received pursuant
to Sections 502(b) or 365 of the Bankruptcy Code or otherwise in connection
with
the commencement or continuance of any bankruptcy, reorganization, arrangement,
insolvency, dissolution, receivership or similar proceedings, or any assignment
for the benefit of creditors, in respect of any tenant or other occupant
of the
Land or the Improvements and all claims as a creditor in connection with
any of
the foregoing.
B-5
“Restoration”
is
defined as the restoration of the Property after a Destruction Event as nearly
as possible to its condition immediately prior to the Destruction Event,
in
accordance with the plans and specifications, in a first-class workmanlike
manner using materials substantially equivalent in quality and character
to
those used for the original improvements, in accordance with Law and free
and
clear of all liens, encumbrances or other charges other than this Deed of
Trust
and the Permitted Exceptions.
“Restoration
Completion Date”
is
defined in Section 7.4(viii).
“Restoration
Funds”
is
defined in Section 7.5(b).
“Taxes”
is
defined as all present and future real estate taxes or personal property
taxes,
if any, levied, assessed or imposed against the Property.
“Term”
is
defined as the scheduled term of this Deed of Trust commencing on the date
Lender makes the first disbursement of the Loan and terminating on the Maturity
Date.
“Transfer”
is
defined as any sale, grant, lease (other than bona fide third-party space
leases
with tenants), conveyance, assignment or other transfer of, or any encumbrance
or pledge against, the Property, any interest in the Property, any interest
of
Xxxxxxxx’s partners, members or principals in the Property, or any change in
Borrower’s composition (except as permitted by this Deed of Trust), in each
instance whether voluntary or involuntary, direct or indirect, by operation
of
law or otherwise and including the grant of an option or the execution of
an
agreement relating to any of the foregoing matters.
“Uniform
Commercial Code”
is
defined as the Uniform Commercial Code as in effect from time to time in
the
jurisdiction where the Land is located or, to the extent required by the
Uniform
Commercial Code, where the Borrower is located, as applicable.
B-6
Exhibit C
RULES
OF CONSTRUCTION
(a) References
in any Loan Document to numbered Articles or Sections are references to the
Articles and Sections of that Loan Document. References in any Loan Document
to
any numbered or lettered Exhibits or Schedules are references to the Exhibits
or
Schedules attached to that Loan Document, all of which are incorporated in
and
constitute a part of that Loan Document. Article, Section, Exhibit and Schedule
captions used in any Loan Document are for reference only and do not describe
or
limit the substance, scope or intent of that Loan Document or the individual
Articles, Sections, Exhibits or Schedules of that Loan Document.
(b) The
terms
“include”, “including” and similar terms are construed as if followed by the
phrase “without limitation”.
(c) The
terms
“Land”, “Improvements”, “Fixtures and Personal Property”, “Condemnation Awards”,
“Insurance Proceeds” and “Property” are construed as if followed by the phrase
“or any part thereof”.
(d) Any
agreement by or duty imposed on Borrower in any Loan Document to perform
any
obligation or to refrain from any act or omission constitutes a covenant
running
with the ownership or occupancy of the Land and the Improvements, which will
bind all parties hereto and their respective successors and assigns, and
all
lessees, subtenants and assigns of same, and all occupants and subsequent
owners
of the Property, and will inure to the benefit of Lender and all subsequent
holders of the Note and this Deed of Trust and includes a covenant by Borrower
to cause its partners, members, principals, agents, representatives and
employees to perform the obligation or to refrain from the act or omission
in
accordance with the Loan Documents. Any statement or disclosure contained
in any
Loan Document about facts or circumstances relating to the Property, Borrower
or
the Loan constitutes a representation and warranty by Xxxxxxxx made as of
the
date of the Loan Document in which the statement or disclosure is
contained.
(e) The
term
“to Xxxxxxxx’s knowledge” is construed as meaning to the best of Xxxxxxxx’s
knowledge after diligent inquiry.
(f) The
singular of any word includes the plural and the plural includes the singular.
The use of any gender includes all genders.
(g) The
terms
“person”, “party” and “entity” include natural persons, firms, partnerships,
limited liability companies and partnerships, corporations and any other
public
or private legal entity.
(h) The
term
“provisions” includes terms, covenants, conditions, agreements and
requirements.
C-1
(i) The
term
“amend” includes modify, supplement, renew, extend, replace or substitute and
the term “amendment” includes modification, supplement, renewal, extension,
replacement and substitution.
(j) Reference
to any specific Law or to any document or agreement, including the Note,
this
Deed of Trust, any of the other Loan Documents, the Leases and the Property
Documents includes any future amendments to the Law, document or agreement,
as
the case may be.
(k) No
inference in favor of or against a party with respect to any provision in
any
Loan Document may be drawn from the fact that the party drafted the Loan
Document.
(l) The
term
“certificate” means the sworn, notarized statement of the entity giving the
certificate, made by a duly authorized person satisfactory to Lender affirming
the truth and accuracy of every statement in the certificate. Any document
that
is “certified” means the document has been appended to a certificate of the
entity certifying the document that affirms the truth and accuracy of everything
in the document being certified. In all instances the entity issuing a
certificate must be satisfactory to Lender.
(m) Any
appointment of Xxxxxx as Xxxxxxxx’s attorney-in-fact is irrevocable and coupled
with an interest. Xxxxxx xxx appoint a substitute attorney-in-fact. Borrower
ratifies all actions taken by the attorney-in-fact but, nevertheless, if
Xxxxxx
requests, Xxxxxxxx will specifically ratify any action taken by the
attorney-in-fact by executing and delivering to the attorney-in-fact or to
any
entity designated by the attorney-in-fact all documents necessary to effect
the
ratification.
(n) Any
document, instrument or agreement to be delivered by Borrower will be in
form
and content satisfactory to Lender.
(o) All
obligations, rights, remedies and waivers contained in the Loan Documents
will
be construed as being limited only to the extent required to be enforceable
under the Law.
(p) The
unmodified word “days” means calendar days.
C-2
Exhibit
D
PROPERTY
DOCUMENTS
D-1
EXHIBIT
D
1. |
Restrictive
Covenants recorded in Volume 10602, Page 896, Volume 11999, Page
11 of the
Real Property Records and Master Declaration of Covenants, Conditions,
Restrictions and Easements recorded as Document No. 2002151143, amended
under Document No. 2003245641, Document No(s). 2002151145, 2002151988,
2002151985 amended under Document No. 2004236025, 2002151984 amended
under
Document No. 2004135909, 2004236024 and 2002151986, amended under
Document
No. 2003152218 and 2004135908; and Document Nos. 2004030367, 2004122661,
2004191682, 2004213360, 2004224634, 2004235043, 2005024751, 2005054995,
2005072058, 2005083877, 2005086875, 2006042570, 2005054992 and 2006054993
and plat(s) recorded under Document No(s). 200400299 and 200600023
of the
Official Public Records, all of Xxxxxx County,
Texas.
|
2. |
Pipeline
easement granted to Shell Pipe Line Corporation, by instrument dated
November 27, 1928, recorded in Volume 430, Page 40, Volume 430, Page
151
of the Deed Records of Xxxxxx County, Texas. Said easement assigned
by
instruments recorded in Volume 1162, Page 249, Volume 1359, Page
261,
Volume 3750, Page 1563 and Volume 3979, Page 2019 of the Deed Records
and
under Document No(s). 2002146654, 2003153649 and 2003219097 of the
Official Public Records, all of Xxxxxx County, Texas, and partially
modified by Volume 5307, Page 1339 of the Deed Records of Xxxxxx
County,
Texas. Additional easements for risers and valves granted to Xxxxxxxx
Pipe
Line Company by instrument recorded in Volume 10059, Page 527 of
the Real
Property Records of Xxxxxx County, Texas. Said easement further affected
by Partial Release of Easement recorded in Volume 13105, Page 376
of the
Real Property Records and of Xxxxxx County, Texas, including but
not
limited to 5 foot temporary workspace easement, and Amendment to
Partial
Release of Easement recorded under Document No. 2000150667 of the
Official
Public Records of Xxxxxx County, Texas. Further affected by Conveyance,
Assignment and Bill of Sale recorded under Document No(s). 2000137109,
2000137110, 2000137111, 2000137112 and 2000137113 of the Official
Public
Records of Xxxxxx County, Texas. Easement further affected by Encroachment
Agreement recorded under Document No(s). 2004199918 and 2004224634
of the
Official Public Records of Xxxxxx County, Texas and Assignment of
Easements recorded under Document No. 2004224024 of the Official
Public
Records of Xxxxxx County, Texas, additionally shown on plats recorded
under Document No(s). 200400299 and 200600023 of the Official Public
Records of Xxxxxx County, Texas, and as shown on survey dated June
13,
2006, prepared by Xxxxxxx X. Xxxxxx, R.P.L.S. No. 4532. (ALL
LOTS)
|
3. |
Pipeline
easement granted to Humble Pipe Line Company, by instrument dated
December
16, 1949, recorded in Volume 994, Page 397 of the Deed Records of
Xxxxxx
County, Texas and amended and defined in Volume 9684, Page 844 of
the Real
Property Records of Xxxxxx County, Texas, and assigned in Volume
13051,
Page 141, corrected by Volume 13202, Page 76 of the Real Property
Records
of Xxxxxx County, Texas. Easement further affected by Encroachment
Agreement recorded under Document No. 2004213360 of the Official
Public
Records of Xxxxxx
County, Texas, additionally shown on plats recorded under Document
No(s).
200400299 and 200600023 of the Official Public Records of Xxxxxx
County,
Texas, and as shown on survey dated June 13, 2006, prepared by Xxxxxxx
X.
Xxxxxx, R.P.L.S. No. 4532. (ALL
LOTS)
|
4. |
Conservation
Easement to Restrict Impervious Cover between the City of Austin
and
Circle C Land Corp. dated August 15, 2002, recorded under Document
No.
2002151985, amended under Document No(s). 2004236025, 2005054992
and
2005054993 of the Official Public Records of Xxxxxx County, Texas.
(ALL
LOTS)
|
5. |
Development
Agreement between the City of Austin and Circle C Land Corp. dated
August
15, 2002, recorded under Document No. 2002151984 amended under Document
No(s). 2004135909, 2004236024, 2005054992 and 2005054993 of the Official
Public Records of Xxxxxx County, Texas, including but not limited
to
Critical Environmental Features Setback. (ALL
LOTS)
|
6. |
A
9.783 acre water quality easement of various width across subject
property, as shown by the Plat(s) recorded under Document No(s).
200400299
and 200600023 of the Official Public Records of Xxxxxx County, Texas,
and
as shown on survey dated June 13, 2006, prepared by Xxxxxxx X. Xxxxxx,
R.P.L.S. No. 4532. (LOT 1, BLOCK A)
|
7. |
A
1.393 acre water quality easement of various width across subject
property, as shown by the Plat(s) recorded under Document No(s).
200400299
and 200600023 of the Official Public Records of Xxxxxx County, Texas,
and
as shown on survey dated June 13, 2006, prepared by Xxxxxxx X. Xxxxxx,
R.P.L.S. No. 4532. (LOT 2, BLOCK A)
|
8. |
A
0.394 acre water quality easement of varied width along the eastern
portion of subject property, as shown by the Plat(s) recorded under
Document No(s). 200400299 and 200600023 of the Official Public Records
of
Xxxxxx County, Texas, and as shown on survey dated June 13, 2006,
prepared
by Xxxxxxx X. Xxxxxx, R.P.L.S. No. 4532. (LOT 3, BLOCK
A)
|
9. |
A
7.567 acre water quality easement of various width across northern
portion
of subject property, as shown by the Plat(s) recorded under Document
No.
200400299 of the Official Public Records of Xxxxxx County, Texas.
(LOTS 1
AND 6, BLOCK B)
|
10. |
The
terms, conditions and stipulations set out in that certain Declaration
of
Easements and Restrictive Covenants Regarding the Maintenance of
Water
Quality Controls for Escarpment Village Development dated December
13,
2004, recorded under Document No. 2004235043 of the Official Public
Records of Xxxxxx County, Texas. (ALL
LOTS)
|
11. |
The
terms, conditions and stipulations set out in that certain Declaration
of
Restrictive Covenants dated June 10, 2004, recorded under Document
No.
2005054995 of the Official Public Records of Xxxxxx County, Texas,
including but not limited to building setback lines set forth herein,
and
as shown on survey dated June 13, 2006, prepared by Xxxxxxx X. Xxxxxx,
R.P.L.S. No. 4532. (ALL LOTS)
|
12. |
Terms,
conditions and stipulations of that certain Xxxxxxx Aquifer Protection
Plan approved August 27, 2004, evidenced by Xxxxxxxxx recorded under
Document No. 2005083668 of the Official Public Records of Xxxxxx
County,
Texas. (ALL LOTS)
|
13. |
The
terms, conditions and stipulations set out in that certain Declaration
Regarding Development Allocations dated March 23, 2005, recorded
under
Document No. 2005083877 of the Official Public Records of Xxxxxx
County,
Texas. (ALL LOTS)
|
14. |
The
terms, conditions and stipulations set out in that certain Water
Quality
Easement dated September 9, 2005, recorded under Document No. 2005171427
of the Official Public Records of Xxxxxx County, Texas, and as shown
on
survey dated June 13, 2006, prepared by Xxxxxxx X. Xxxxxx, R.P.L.S.
No.
4532. (LOTS 1 AND 6, BLOCK B)
|
15. |
Terms,
conditions and stipulations of that certain Xxxxxxx Aquifer Protection
Plan approved February 23, 2006, evidenced by Xxxxxxxxx recorded
under
Document No. 2006069610 of the Official Public Records of Xxxxxx
County,
Texas. (ALL LOTS)
|
16. |
Terms,
conditions and stipulations of that certain Xxxxxxx Aquifer Protection
Plan approved August 27, 2004, evidenced by Xxxxxxxxx recorded under
Document No. 2005083668 of the Official Public Records of Xxxxxx
County,
Texas. (ALL LOTS)
|