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R94-59 10-24-94RESOLUTION NO. R94-59 A RESOLUTION APPROVING THE RESOLUTION OF THE PEARLAND INDUSTRIAL DEVELOPMENT CORPORATION WITH RESPECT TO THE PEARLAND INDUSTRIAL DEVELOPMENT CORPORATION INDUSTRIAL DEVELOPMENT REVENUE BONDS, SERIES 1985 (PEARLAND MINI-STORAGE PROJECT); AUTHORIZING AN ASSUMPTION OF LIABILITY AND MODIFICATION AGREEMENT APPROVING CERTAIN DEEDS AND A GENERAL CONVEYANCE, TRANSFER AND ASSIGNMENT; AND OTHER MATTERS IN CONNECTION THEREWITH WHEREAS, the Pearland Industrial Development Corporation (the "Issuer") was created under the auspices of the City Council of Pearland, Texas (the "Unit") pursuant to the Development Corporations Act of 1979, (Article 5190.6, Vernon'sAnnotated Texas Civil Statutes), as amended (the "Act"); and WHEREAS, the Issuer previously issued its Bonds styled "Pearland Industrial Development Corporation Industrial Development Revenue Bonds, Series 1985 (Pearland Mini-Storage Project)" (the "Bonds") and authorized the use of the proceeds of the sale of the Bonds to finance the acquisition, construction and equipping of a self-storage mini-warehouse in Pearland, Texas as evidenced by the Bond Resolution dated October 8, 1985 (the "Bond Resolution"); and WHEREAS, the Issuer has adopted its Resolution with Respect to the Pearland Industrial Development Corporation Industrial Development Revenue Bonds, Series 1985 (Pearland Mini- Storage Project); authorizing an Assumption of Liability and Modification Agreement; approving certain Deeds and a General Conveyance, Transfer and Assignment; and other matters in connection therewith; and WHEREAS, the Bylaws of the Issuer provide for the Unit to approve activities of the Issuer; NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF PEARLAND, TEXAS: 1. That the Unit hereby approves the resolution approved by the Issuer entitled "Resolution with Respect to the Pearland Industrial Development Corporation Industrial Development Revenue Bonds, Series 1985 (Pearland Mini-Storage Project); authorizing an Assumption of Liability and ModificationAgreement; approving certain Deeds and a General Conveyance, Transfer and Assignment; and other matters in connection therewith", a copy of which is attached hereto as Annex I and incorporated herein by reference. 2. That the approval given by the Unit is made in accordance with the Act and' is not to be construed as any undertaking by the Unit. The Bonds shall not be deemed to constitute a debt of the Unit or a pledge of the faith and credit of the Unit. The Bonds shall be payable solely from the funds provided from the Bond revenues and the Unit shall never be obligated to pay the Bonds or the interest thereon nor shall the Unit's faith and credit or taxing power ever be pledged to the payment of the principal or interest of the Bonds. 3. That the Mayor and City Secretary are hereby authorized jointly and severally to execute and deliver such endorsements, instruments, certifications, documents or papers necessary and advisable to carry out the intent and purposes of this Resolution. PASSED, APPROVEDANDADOPTED THIS THE ~ DAY OF OCTOBER, 1994. Mayor Pearland, Texas ATTEST: APPROV AS T/O FORM,~,/~q~~y~/~tt~Z~~ 94\RCCA\F ! BOT#:)O\PEARLANDVi, PPROV' 1. RES - 2 - CERTIFICATE FOR RESOLUTION APPROVING THE RESOLUTION OF THE PEARLAND INDUSTRIAL DEVELOPMENT CORPORATION WITH RESPECT TO THE PEARLAND INDUSTRIAL DEVELOPMENT CORPORATION INDUSTRIAL DEVELOPMENT REVENUE BONDS, SERIES 1985 (PEARLAND MINI-STORAGE PROJECT); AUTHORIZING AN ASSUMPTION OF LIABILITY AND MODIFICATION AGREEMENT APPROVING CERTAIN DEEDS AND A GENERAL CONVEYANCE, TRANSFER AND ASSIGNMENT; AND OTHER MATTERS IN CONNECTION THEREWITH THE STATE OF TEXAS COUNTY OF BRAZORIA I, the undersigned officer of the City Council (the "Governing Body") of the City of Pearland, Texas (the "Unit"), do hereby execute and deliver this certificate for the benefit of all persons interested in the proceedings of the Governing Body of the Unit and the validity thereof, and do certify as follows: 1. I am the duly chosen, qualified and acting officer of the Unit for the office shown below my signature; as such I am familiar with the facts herein certified and I am duly authorized to execute and deliver this certificate. 2. The Governing Body of the Unit convened in session at Pearland, Texas on October 24, 1994 (the "Meeting"), at the designated meeting place, and the roll was called of the duly constituted members of the Governing Body, to wit: Vic Coppinger D. A. Miller Richard Tetens Randy Weber David Smith Jenny Richardson Mayor City Council Member City Council Member City Council Member City Council Member City Council Member All of such persons were present, except the following absentees: ~/~a/c~ , thus constituting a quorum. Whereupon a written: RESOLUTION WITH RESPECT TO THE PEARLAND INDUSTRIAL DEVELOPMENT CORPORATION INDUSTRIAL DEVELOPMENT REVENUE BONDS, SERIES 1985 (PEARLAND MINI-STORAGE PROJECT); AUTHORIZING AN ASSUMPTION OF LIABILITY AND MODIFICATION AGREEMENT APPROVING CERTAIN DEEDS ASSUMPTION OF LIABILITY AND MODIFICATION AGREEMENT This Assumption of Liability and Modification Agreement (this "Agreement") is made this __ day of , 1993, by and between PEARLAND MINI- STORAGE, LTD., a Texas limited partnership acting by and through its duly authorized general partners, with offices at 1506 East Broadway, Suite 200, Pearland, Texas 77581 ("Pearland Ltd."), PEARLAND MINI-STORAGE, a Texas joint venture, acting by and through its duly authorized joint venturers (the "User"), PEARLAND INDUSTRIAL DEVELOPMENT CORPORATION (the "Issuer"), FIRST INTERSTATE BANK OF TEXAS, N.A., as Trustee (the 'Trustee") under that certain Trust Indenture dated as of August 1, 1985 between Pearland Industrial Development Corporation and Allied Bank of Texas, as Trustee (herein that Trust Indenture as the same may have been modified, amended, renewed, rearranged, or restated from time to time being called the "Indenture"), FIRST INTERSTATE BANK OF TEXAS, N.A. (the "Bondholder"), and joined herein by RONAI.I) HAUSMAN and JAMES A. BANFIEII) (collectively the "Guarantors"). WITNESSETH: WHEREAS, pursuant to the Indenture, the Issuer authorized the issuance of the Pearland Industrial Development Corporation Industrial Development Revenue Bonds, Series 1985 (Pearland Mini-Storage Project) in the aggregate principal amount of $1,000,000, (which bonds together with any replacement bonds and any additional parity revenue bonds authorized to be issued by the Indenture, are hereinafter collectively called the "Bonds"); WHEREAS, the Issuer and the User entered into that certain Loan Agreement dated as of August 1, 1985 (the "Loan Agreement") pursuant to which the Issuer agreed to make a loan of the proceeds of the Bonds (the "Loan") to the User to finance the cost of the Project (as that term is defined in the Loan Agreement); WHEREAS, to evidence its obligations under the Loan Agreement, the User executed and delivered to the Issuer a note (the note as the same may have been modified, amended, renewed, rearranged, or restated from time to time being called the "Note") dated October 18, 1985 in the original principal amount of $1,000,000 bearing interest and otherwise being payable as therein provided; WHEREAS, to secure the obligations of the User under the terms of the Loan Agreement, the User executed and delivered to James H. Albert, as Trustee (the "Mortgage Trustee"), for the benefit of the Issuer a Deed of Trust, Assi~ment of Rents, Security Agreement and Financing Statement dated as of August 1, 1985 filed for record on October -1- 17, 1985 under Clerk's File Number 36235 and duly recorded on that same date in Volume 85198, page 685 of the Official Records of Brazoria County, Texas, covering the real property, personal property, and fixtures therein defined as the "Mortgage Trust Estate" (herein called the "Property") including, but not limited to, the real property described on Exhibit A attached hereto and made a part hereof (the deed of trust as the same may have been modified, amended, renewed, rearranged, or restated from time to time being called the "Deed of Trust"); WHEREAS, in order to guarantee the payment of the outstanding principal of the Bonds plus accrued and unpaid interest thereon and the performance by the User of its obligations under the Loan Agreement, the Guarantors executed and delivered to the Trustee that certain Guarantee Agreement dated as of August 1, 1985 (such Guarantee Agreement as the same may have been modified, amended, renewed, rearranged, or restated from time to time being called the "Guaranty"); WHEREAS, the User has conveyed the Property to Pearland Ltd., subject to the liens and security interests granted under the Deed of Trust; WHEREAS, the User and Pearland Ltd. have requested that the Trustee, the Issuer and the Bondholder consent to the transfer of the Property from the User to Pearland Ltd. subject to such liens and security interests in favor of the Trustee; and WHEREAS, the Trustee, the Issuer, and the Bondholder desire to consent to the conveyance of the Property to Pearland Ltd. and to permit Pearland Ltd. to assnine payment of the Note and performance of obligations of the User under the Loan Agreement and the other,Bond Documents (as that term is defined in the Loan Agreement); NOW, II-tEREFORE, in consideration of the consent by the Trustee, the Issuer and the Bondholder to the conveyance of the Property by the User to Pearland Ltd. and in consideration of the assumption by Pearland Ltd. of the obligations of the User under the Note, Loan Agreement, Deed of Trust, and the other Bond Documents including, but not limited to, the payment to the Trustee of the outstanding principal balance of the Note and all interest which has accrued and remains unpaid or which may hereafter accrue thereon, the parties hereto agree as follows: 1. Defined Terms. All capitaliT-ed terms used in this Agreement shall have the meanings ascribed to those terms in the Loan Agreement 2. Assumption of Obligations. Pearland Ltd. hereby assumes the obligations, duties, and liabilities of the User under the terms of the Note, Loan Agreement, Deed of Trust, and the other Bond Documents. Without limiting the generality of the foregoing -2- sentence, Pearland Ltd. hereby assumes the obligations of the User (i) to timely pay and discharge all amounts now and hereafter owing under the Note and the Loan Agreement, at the time and in the manner and in all respects as provided in the Note or the Loan Agreement, as the case may be, and (ii) to timely perform each and all of the covenants, agreements, and obligations of the User in and under the Loan Agreement, the Deed of Trust and the other Bond Documents at the time, in the manner and in all respects as provided for in the Loan Agreement, the Deed of Trust, and the other Bond Documents, respectively. Pearland Ltd. hereby agrees to be bound by each and all of the covenants, agreements, terms, conditions, representations, and warranties made by the User in the Note, Loan Agreement, Deed of Trust, and the other Bond Documents, to the same extent as if Pearland Ltd. were named therein as the User and as if Pearland Ltd. had executed and delivered the same in the place and stead of the User; provided, however, that consent by the Trustee, the Issuer, and the Bondholder to the transfer of the Property and the assumption of these obligations by Pearland Ltd. is not intended to nor shall it operate to release, limit, diminish, affect, or relinquish the respective obligations, duties, and liabilities of the Guarantors and the User to the Trustee, the Issuer, and the Bondholder under the Note, the Guaranty, the Loan Agreement, or the other Bond Documents. The parties hereto agree that as of , 1993 the outstanding principal balance of the Note equals $ and the accrued but unpaid interest thereon equals $ . Pearland Ltd. hereby agrees and promises to pay to the order of the Trustee the outstanding principal balance of the Note plus all accrued and unpaid interest thereon, and all other sums now or hereafter due to the Trustee or Issuer under the terms of the Loan Agreement or any of the other Bond Documents. 3. Assumption of Indemnity Obligations. Without limiting the generality of the assumption provided in paragraph 2 of this Agreement, Pearland Ltd. also specifically assumes any and all indemnity and hold harmless obligations of the User to the Trustee, the Issuer, and the Bondholder, or any one or more of them, provided in any of the Bond Documents including, but not limited to, the indemnity provided in Section 6.8 on page 37 of the Loan Agreement and the indemnity contained in the Representation Letter dated October 18, 1985 from the User and the Guarantors to the Issuer and the Bondholder. 4. Ratification. This Agreement is in addition to (but not in substitution, novation, or discharge of) and in ratification and confirmation of, the Note, Loan Agreement, Deed of Trust, and the other Bond Documents and the liens, security interests, and rights granted therein. The User and Pearland Ltd. ratify and confirm that the Deed of Trust is and remains in full force and effect in accordance with its terms and that the Property covered thereby and described therein is unimpaired by this Agreement and the conveyance of the Property by the User to Pearland Ltd. Each of the User and Pearland Ltd. ratifies, confirms, and agrees that any and all liens, security interests, and other security or collateral now or hereafter held by the Trustee or the Issuer, or both, as security for -3- payment and performance of the obligations of the User, as hereby assumed by Pearland Ltd., pursuant to the terms of the Note, the Loan Agreement, the Deed of Trust, and the Bond Documents hereby are renewed, extended, and carried forward to secure payment and performance of all of the User's obligations to the Trustee and the Issuer, as hereby assumed by Pearland Ltd., including, without limitation, the payment and performance of the User's obligations under the Loan Agreement and the Note, each as assumed herein. The Note, Loan Agreement, Deed of Trust, and the other Bond Documents are and remain the legal, valid, and binding obligations of the parties thereto, enforceable in accordance with their respective terms. 5. References. Each of the Bond Documents is hereby modified and amended to reflect the terms of this Agreement in particular that Pearland Ltd. has succeeded to the interest of the User in the Property. Each of the Bond Documents is further modified to amend the term "User" as defined in each of those documents to mean the User, its successors and assigns including, but not limited to, Pearland Ltd. 6. No Transfers. Pearland Ltd. covenants and agrees that it shall not cause or permit, without the express prior written consent of the Trustee: (i) the dissolution, winding up, or termination of Pearland Ltd.; (ii) the conversion of Pearland Ltd. from a Texas limited partnership to any other form of business entity including, but not limited to, a registered limited liability partnership; (iii) the sale, assignment, pledge, transfer, hypothecation, encumbrance, or other disposition of any interest, legal or equitable, in and to the Property, or any part thereof; (iv) the sale, transfer or pledge of any interest in Pearland Ltd. or any change in the management or operating control of Pearland Ltd. If any of the foregoing occur without the required consent of the Trustee, the Trustee may, at its option, declare an event of default under the Loan Agreement and exercise any and all remedies available to Trustee under the terms of the Bond Documents or otherwise afforded at law or in equity. 7. Representations and Warranties. Pearland Ltd. represents and warrants to the Trustee, the Issuer and the Bondholder as follows: Pearland Ltd. is a limited partnership duly organized and validly existing under the laws of the State of Texas, and Pearland Ltd. has the requisite authority, permits, licenses, consents, and authorizations as are necessary to own the Property, to carry on its business, to acquire, own, operate, and manage the Property, and to consummate the transactions contemplated by this Agreement and the Bond Documents; Pearland Ltd. has full power and authority to execute, deliver, and perform its obligations under this Agreement, and the obligations of the User under the Note, the Loan Agreement, the Deed of Trust, and the other Bond Documents, and has, by proper action, duly authorized the execution and delivery of this Agreement; This Agreement and the obligations assumed by Pearland Ltd. hereby constitute legal, valid, and binding obligations of Pearland Ltd. enforceable in accordance with its terms, except as such enforcement may be limited by bankruptcy, insolvency, or other laws affecting the enforcement of creditors' rights generally and the availability of the remedy of specific performance; Neither the execution and delivery of this Agreement, the consummation of the transactions contemplated hereby, nor the fulfillment or compliance with the terms and conditions of this Agreement or the Bond Documents (i) comtimtes a default, or an event which with the giving of notice and the passage of time would constitute an event of default, under the terms of any document, instrument, mortgage, indenture, contract, agreement, order, or decree binding upon Pearland Ltd., (ii) results in the creation of any lien, charge, security interest, or encumbrance whatsoever upon any of the property or assets of Pearland Ltd., including, but not limited to, the Property, (iii) requires the consent or approval of any party which has not already been obtained including, but not limited to, any governmental entity or authority, or any court or tribunal with jurisdiction over Pearland Ltd., or (iv) contravenes or constitutes a default under any organiT-ational documents of Pearland 'Ltd. or any law or regulation applicable to Pearland Ltd.; and There is no action, suit, investigation, proceeding, or inquiry at law or in equity before or by any court, public board or body, pending or threatened agaimt Pearland Ltd. which ff adversely determined would affect the properties of Pearland Ltd. including but not limited to, the Property, or the business of Pearland Ltd. or would adversely affect the validity or enforceability of this Agreement or the obligations of Pearland under the Bond Documents, as hereby assumed. Neither a default nor an event which with the giving of notice and passage of .time would cortstitute a default exists under the terms of the Note, Deed of Trust, Loan AgXeement, and Bond Documents, or any one or more of them. 8. Default. The failure, refusal, or neglect of Pearland Ltd. or the User to comply with any of the terms, covenants, conditions, or agreements set forth in this Agreement shall constitute art event of default under Section 7. 1(b) of the Loan Agreement. -5- Any event of default set forth herein is intended to be and shall be cumulative of the other events of default set forth in the Loan Agreement and the other Bond Documents. 9. Consent to Conveyance. Subject to the terms of this Agreement, the Trustee,. the Issuer and the Bondholder hereby consent to the conveyance of the Property to Pearland Ltd. subject to the first lien security interest and other encumbrances against the Property in favor of the Trustee unde, r the Deed of Trust and the other Bond Documents. 10. Guaranty. Each of the Guarantors hereby consents to and accepts conveyance of the Property by the User to Pearland Ltd., to the assumption by Pearland Ltd. of the obligations, duties, and liabilities of the User, as set forth in paragraph 2 of this Agreement, agrees to be bound by the terms and conditions hereof, and ratifies and confirms that his respective Guaranty is and remains in full force and effect and secures payment and performance of, among other things, the obligatiom and indebtedness of the User under the Loan Agreement and the Note. Each of the Guarantors confirms and agrees that the Guaranty and his liability and obligations thereunder are not released, relinquished, impaired, waived, or diminished to any extent as the result of the conveyance of the Property to Pearland Ltd. or the assumption of the User's obligations by Pearland Ltd. as provided in this Agreement. 11. Release and Waiver. AS ADDITIONAL CONSIDERATION FOR THE EXECUTION AND DELIVERY OF THIS AGREEMENT BY THE TRUSTEE, THE ISSUER, AND THE BONDHOLDER, AND TO INDUCE THE TRUSTEE, THE ISSUER AND THE BONDHOLDER TO ENTER INTO THIS AGREEMENT, EACH OF THE USER AND PEARLAND LTD. WARRANT AND REPRESENT TO THE TRUSTEE, THE ISSUER AND THE BONDHOLDER THAT NO FACTS, EVENTS, OR CONDITIONS EXIST OR HAVE EXISTED WHICH, EITHER NOW OR WITH THE PASSAGE OF TIME OR GIVING OF NOTICE, OR BOTH, CONSTITUTE OR WII I. CONSTITUTE A BASIS FOR ANY CLAIM OR CAUSE OF ACTION AGAINST THE TRUSTEE, THE ISSUER AND THE BONDHOLDER, OR ANY OF THEM, OR ANY DEFENSE TO (A) THE PAYMENT OF ANY OBLIGATIONS AND INDEBTEDNESS UNDER THE LOAN AGREEMENT, THE NOTE, OR ANY OF THE OTHER BOND DOCUMENTS, OR (B) IttE PERFORMANCE OF ANY OF THEIR RESPECTIVE OBLIGATIONS UNDER I;HE BOND DOCUMENTS. IN THE EVENT ANY SUCH FACTS, EVENTS OR CONDITIONS EXIST OR HAVE EXISTED, WHETHER KNOWN OR UNKNOWN, EACH OF THE USER AND PEARLAND LTD. UNCONDITIONALLY AND IRREVOCABLY RELEASE AND WAIVE ANY AND ALL CLAIMS AND CAUSES OF ACTION AGAINST THE TRUSTEE, THE ISSUER AND THE BONDHOLDER, OR ANY OF THEM, AND ANY DEFENSES TO ITS OR THEIR PAYMENT AND PERFORMANCE OBLIGATIONS, AS THE CASE MAY BE, UNDER AND PURSUANT TO THE BOND DOCUMENTS. THE PARTIES HERETO -6- EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE RELEASE AND WAIVER CONTAINED IN THIS SECTION 11 RELATES ONLY TO FACTS, EVENTS OR CONDITIONS EXISTING ON THE EFFECTIVE DATE OF THIS AGREEMENT AND NOT TO ANY FACTS, EVENTS OR CONDITIONS ARISING OR ACCRUING IN THE FUTURE. NOTWITHSTANDING ANY PROVISION OF THE BOND DOCUMENTS, THIS PARAGRAPH 11 SHALL REMAIN IN FULL FORCE AND EFFECT AND SHALL SURVIVE THE EXECUTION AND DELIVERY OF THIS AGREEMENT AND ANY AND AI .lJ AMENDMENTS OR MODIFICATIONS THEREOF. 12. Notices. Any notice required or permitted to be given to the User under or in connection with the Bond Documents shall also be given to Pearland Ltd. in accordance with the terms of Section 8.2 of the Loan Agreement at the following address: Pearland Mini-Storage, Ltd. 1506 East Broadway, Suite 200 Pearland, Texas 77581 Attention: James A. Banfield 13. Amendments and Waivers. Any provision of this Agreement may be amended or waived if, but only if, such amendment or waiver is in writing and is signed by the party or parties which are parties to any Bond Document being amended or with respect to which a waiver is being obtained and the Trustee. 14. Invalidity. In the event that any one or more of the provisions comained in this Agreement shall, for any reason, be held invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision of this Agreement. 15. Survival of Agreements. All representations and warranties of Pearland Ltd. herein and all covenants and agreements herein not fully performed before the effective date or dates of this Agreement shall survive such date or dates. 16. Successors and Assigns. All covenants and agreements given by or on behalf of Pearland Ltd. in this Agreement or assumed by Pearland Ltd. herein shall bind its successors and assigns and shall inure to the benefit of the Trustee and its successors and assigns. Pearland Ltd. shall not, however, have the right to assign its rights under this Agreement, or any interest herein, without the prior written consent of the Trustee. 17. No Waivers. No course of dealing on the part of the Trustee, its officers, employees, consultants, or agents, nor any failure or delay by the Trustee with respect to -7- exercising any right, power, or privilege of the Trustee under this Agreement shall operate as a waiver thereof. 18. Cumulative Rights. Rights and remedies of the Trustee under the Note, this Agreement and each other Bond Documents shall be cumulative, and the exercise or partial exercise of any such right or remedy shall not preclude the exercise of any other right or remedy. 19. Singular and Plural. Words used herein in the singular, where the context so permits, shall be deemed to include the plural and vice versa. The definitions of words in the singular herein shall apply to such words when used in the plural where the context so permits and vice versa. 20. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, CONSTRUED, AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, EXCEPT TO THE EXTENT THAT THE FEDERAL LAWS OF THE UNITED STATES OF AMERICA MAY APPLY. 21. Interest. It is the intention of the parties hereto to comply strictly with applicable usury laws; accordingly, notwithstanding any provision to the contrary in this Agreement or in any of the Bond Documents, in no event shall this Agreement or such Bond Documents require or permit the payment, charging, taking, reserving, or receiving of any sums constituting interest under applicable laws which exceed the maximum amount permitted by such laws. If any such excess interest is contracted for, charged, taken, reserved, or received in connection with the Loan or in any of the Bond Documents or in any communication by the Trustee, Issuer, or any other person to User or Pearland Ltd. or any other person, or in the event all or part of the principal or interest hereof shall be prepaid or accelerated, so that under any of such circumstances or under any other circumstance whatsoever the amount of interest contracted for, charged, taken, reserved, or received on the amount of principal actually outstanding from time to time under the Note shall exceed the maximum amount of interest permitted by applicable usury laws, then in any such event it is agreed as follows: (i) the provisions of this paragraph shall govern and control, (ii) any such excess shall be deemed an accidental and bona fide error and canceled automatically to the extent of such excess, and shall not be collected or collectible, (iii) any such excess which is or has been paid or received notwithstanding this paragraph shall be credited against the then unpaid principal balance hereof or refunded to User and Pearland Ltd., as the case may be, at Trustee's option, and (iv) the effective rate of interest shall be automatically reduced to the maximum lawful rate allowed under applicable laws as construed by courts having jurisdiction hereof or thereof. Without limiting the foregoing, all calculations of the rate of interest contracted for, charged, taken, reserved, or received in connection herewith which are made for the purpose of determining whether such rate -8- exceeds the maximum lawful rate shall be made to the extent permitted by applicable laws by amortizing, prorating, allocating and spreading during the period of the full term of the Loan, including all prior and subsequent renewals and extensions, all interest at any time contracted for, charged, taken, reserved, or received. The terms of this paragraph shall be deemed to be incorporated in every Bond Document and communication relating to the Note and Loan. The term "applicable usury laws" shall mean such laws of the State of Texas or the laws of the United States, whichever laws allow the higher rate of interest, as such laws now exist; provided, however, that if such laws shall hereafter allow higher rates of interest, then the applicable usury laws shall be the laws allowing the higher rates, to be effective as of the effective date of such laws. 22. WAIVERS OF NOTICE. PEARLAND LTD. HEREBY WAIVES NOTICE OF GRACE, PRESENTMENT FOR PAYMENT, PROTEST, DISHONOR, DEFAULT, NOTICE OF INTENTION TO ACCELERATE, AND NOTICE OF ACCELERATION, EXCEPT TO THE EXTENT SUCH NOTICES ARE SPECIFICALLY REQUIRED BY THE TERMS OF THE BOND DOCUMENTS. EACH PARTY HERETO HEREBY WAIVES AND RELINQUISHES THE RIGHT, IF ANY, SUCH PARTY HAS UNDER THE NOTE, LOAN AGREEMENT, OR OTHER BOND DOCUMENTS TO RECEIVE PRIOR NOTICE OF THE TRANSACTION CONTEMPLATED IN THIS AGREEMENT OR THE AMENDMENTS PROVIDED HEREIN. 23. References. The words "herein," "hereof," "hereunder" and other words of similar import when used in this Agreement refer to this Agreement as a whole, and not to any particular article, section or subsection. 24. Costs and Expenses. Pearland Ltd. shall be responsible for payment of all costs and out-of-pocket expenses (including, but not limited to, reasonable attorneys' fees and recordation expenses) incurred by the Trustee, the Issuer, and the Bondholder in connection with or relating to the negotiation, documentation, and consummation of the conveyance of the Property from the User and the assumption contemplated by this Agreement. 25. Titles of Articles. Sections and Subsections. All rifles or headings to articles, sections, subsections, or other divisions of this Agreement or the exhibits hereto are only for the convenience of the parties and shall not be construed to have any effect or meaning with respect to the other content of such articles, sections, subsections, or other divisions, such other content being controlling as to the agreement between the parties hereto. 26. Counterparts. This Agreement may be executed in two (2) or more counterparts, and it shall not be necessary that the signatures of all parties hereto be -9- contained on any one counterpart hereof; each counterpart shall be deemed an original, but all of which together shall constitute one and the same instntment. 27. NO ORAL AGREEMENTS. THIS WRITTEN AGREEMENT, THE LOAN AGREEMENT, THE NOTE AND THE OTHER BOND DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES. PEARLAND MINI-STORAGE, LTD. By: MAXI, INC., its General Parmer Name: Ti~e: BANFIELD PROPERTIES, INC., its General Partner Name: Title: PEARLAND MINI-STORAGE Ronald Hausman Joint Venmrer James A. Banfield Joint Venmrer PEARLAND INDUSTRIAL DEVELOPMENT CORPORATION i~ Mn~ Frauen ger ~: Pres e FIRST INTERSTATE BANK OF TEXAS, N.A., as trustee Name: Ti~e: -11- FIRST INTERSTATE BANK OF TEXAS, N.A., as bondholder Name: Tttle: RONALD HAUSMAN JAMES A. BANFIELD THE STATE OF TEXAS § COUNTY OF HARRIS § This instrument was acknowledged before me on the day of , 199_, by , of MAXI, INC., General Parmer of PEARLAND MINI- STORAGE, LTD, a Texas limited partnership, on behalf of said limited partnership. Notary Public in and for the State of Texas Commission Expiration Printed Name of Notary -12- THE STATE OF TEXAS § COUNTY OF HARRIS § This instrument was acknowledged before me on the day of , 199_, by , of BANFIELD PROPERTIES, INC., General Partner of PEARLAND MINI-STORAGE, LTD, a Texas limited partnership, on behalf of said limited partnership. Notary.Public in and for the State of Texas Commission Expiration Printed Name of Notary THE STATE OF TEXAS § COUNTY OF HARRIS§ This instrument was acknowledged before me on the day of , 199, by Ronald Hausman, Joint Venmrer of PEARLAND MINI- STORAGE, a Texas joint venture, on behalf of said joint venture. Notary Public in and for the State of Texas Commission Expiration Primed Name of Notary -13- THE STATE OF TEXAS § § COUNTY OF HARRIS § This instrument was acknowledged before me on the day of , 199_, by James A. Banfield, Joint Venturer of PEARLAND MINI- STORAGE, a Texas joint venture, on behalf of said joint venture. Notary Public in and for the State of Texas Commission Expiration Printed Name of Notary THE STATE OF TEXAS § COUNTY OF HARRIS § This instrument was :;know e on ay o~ October , 199_~ ' , pre s j_dent LOPME CORPORATION, on behaff of said corporation. TOMMIE JEAN VIAL Notary Pubiic, State of Texas Commission Expiration the State of Texas Printed Name of Notary -14- DEED STATE OF rEx s § ~ ~OW ~L MEN BY THESE P~SENTS: CO~TY OF B~ZO~A ~ ~T PE~~ MN-STO~GE JOlT ~N~, a Texas ~eneral pa~ers~p (here~a~er refe~ed to as "Gramor"), for ~d ~ comideration of ~c sum of Ten and no/100 Dories ($10.00) cash nd o~cr good and valuable comideration ~ h~d paid by B~LD PROPERT~S~ ~C., a Texas coloration (here~after refe~ed m as "Grntee"), ~e receipt and sufficiency of wMch is hereby ac~owledged and co~essed, has G~D, SOLD~ CO~~D, and T~S~~D, and by ~ese presems does G~, SELL CO~Y, ~d T~S~R unto Gramee a one percent (1%) undivided interest ~ and m ~e prope~ colony refe~ed to as Pearland M~-Smra~e, mge~er wi~ all ~provemems situated ~ereon (here~a~er refe~ed to as "Subject Prope~") described on Schedule "A" a~ched hereto and by ~s reference ~co~orated here~ for all pu~oses. Grantor does hereby ~fer ~e prope~ described above, to~e~er wi~ all rights, titles and ~terests of Grantor in and to any roads, easements, streets, and fights-of-way wi~n, adjoining, adjacent, or comi~ous m ~e Subject Prope~, ~d all conde~tion awards, rese~atiom, ~d rema~ders, mge~er wi~ each and eve~ fight, p~vflege, heredi~cm, and appurtenance in anywise ~cidem or appena~ to ~e Subject Prope~. ~e te~ "Subject Prope~" shall refer to and ~clude ~e prope~ as described ~ ~s paragraph. TMs ~ansfer is made and accepmd subject to ~e follow~ mauers, m ~e extem sine ~e in effect at this t~e (i) any aM all res~ictions, covenams, coMitions, liere, encmbrances, rese~atiom, easements, and other exceptiota to title, if any, relating to ~e Subject Prope~ shown of record in ~e hercmbovc memioned coun~ aM state, (ii) all zomg laws, re~latiom and ordinances of municipal and/or other governmental authorities, if any, relating to the Subject Property, and (iii) Deed of Trust, Assignment of Rents, Security Agreement and Financing Statement dated as of August 1, 1985 and recorded in the office of the County Clerk of Brazoria County, Texas under Clerk's File No. 36235 to James H. Albert, Trustee, for the benefit of the Pearland Industrial Development Corporation securing payment of a promissory note in the original principal amount of $1,000,000 originally payable to the order of Pearland Industrial Development Corporation. TO HAVE AND TO HOLD the Subject Property, to the extent conveyed hereby, together with all and singular rights and appurtenances thereto in anywise belonging, unto Grantee and Grantee's successors and assigns forever. And Grantor does hereby bind Grantor and Grantor's successors and assigns to warrant and forever defend all and singular said Subject Property, to the extent conveyed hereby, unto Grantee and Grantee's successors and assigns against every person whomsoever lawfully claiming or to claim the same or any part thereof. Taxes for the current year have been prorated and are assumed Grantee. EXECUTED on this the __ day of , 1993 to be effective January 1, 1994. PEARLAND MINI-STORAGE JOINT VENTURE By: Ronald Hausman, General Partner By: James A. Banfield, General Partner By: Tommy Lott, General Parmer ADDRESS OF GRANTEE: 1328 South Loop West, Suite 100 Houston, Texas 77054 By: Sidney Anderson, M.D., General Partner THE STATE OF TEXAS COUNTY OF HARRIS BEFORE ME, the undersigned authority, on this day personally appeared RONALD HAUSMAN, as General Partner of PEARLAND MINI-STORAGE JOINT VENTLrRE, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed the same for the purposes and consideration therein expressed, in the capacity therein stated, and as the act and deed of said paxtnership. GIVEN UNDER MY HAND AND SEAL OF OFFICE this the day of , 1993. NOTARY PUBLIC IN AND FOR THE STATE OF T E X A S THE STATE OF TEXAS COUNTY OF BRAZORIA BEFORE ME, the undersigned authority, on this day personally appeared JAMES A. BANFIELD, as General Panner of PEARLAND MINI-STORAGE JOINT VENTURE, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed the same for the purposes and consideration therein expressed, in the capacity therein stated, and as the act and deed of said parmership. GIVEN UNDER MY HAND AND SEAL OF OFFICE this the day of ,1993. NOTARY PUBLIC IN AND FOR THE STATE OF T E X A S THE STATE OF TEXAS COUNTY OF HARRIS BEFORE ME, the undersigned authority, on this day personally appeared TOMMY LOTT, as General Partner of PEARLAND MINI-STORAGE JOINT VENTURE, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed the same for the purposes and consideration therein expressed, in the capacity therein stated, and as the act and deed of said parmership. GIVEN UNDER MY HAND AND SEAL OF OFFICE this the day of ,1993. NOTARY PUBLIC IN AND FOR THE STATE OF T E X A S 4 THE STATE OF TEXAS COUNTY OF HARRIS BEFORE ME, the undersigned authority, on this day personally appeared SIDNEY ANDERSON, M.D., as General Partner of PEARLAND MINI-STORAGE JOINT VENTURE, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed the same for the purposes and consideration therein expressed, in the capacity therein stated, and as the act and deed of said pannership. GIVEN UNDER MY HAND AND SEAL OF OFFICE this the ,1993. day of NOTARY PUBLIC IN AND FOR THE STATE OF T E X A S AKW130.52\rm SCItEDULE "A" "' A 2.7721 acre tract of land out of the called south 1/2 of Lot 58, Zychlinski Subdivision, Section Two, T. T. & B. R. R. Company Survey, Abstract 542, Brazoria County, Texas, as recorded in Volme 29, page 43, of the Deed Records of Brazoria County, Texas, said 2.7721 acre tract of land being more particularly described by metes and bounds as follows: COMMENCING at a point for the intersection of the north line of said Lot 58 and the east line of State Highway No. 35 (100 feet Right-of-Way), from which a 3/4 inch iron pipe lies 0.77 feet East; THENCE South 02° 30' 42" East, along said east line of said State Highway No. 35, at a distance of 316.45 feet passing a 5/8 inch iron rod and continuing in all a total distance of 494.92 feet to a 5/8 inch iron rod set for the PLACE OF BEGINNING of the herein described tract of land; THENCE North 79° 14' 04" East, a distance of 237.46 feet to a 5/8 inch iron rod set for comer; THENCE North 87° 27' 59" East, a distance of 432.65 feet to a 5/8 inch iron rod set for comer; THENCE South 52° 10' 09" East, a distance of 75.18 feet to a 5/8 inch iron md set for comer; THENCE South 02° 32' 01" East, a distance of 125.31 feet to a 5/8 inch iron rod set for comer; THENCE South 87° 27' 59" West, a distance of 725.00 feet to a point for comer, said point being in said east line of State Highway No. 35 and from said point a 1 inch iron pipe lies 0.74 feet North and 0.09 feet West; THENCE North 02° 30' 42" West, along said east line of State Highway No.35, a 'distance of 140.00 feet to the PLACE OF BEGINNING of the herein described tract of land and containing within these calls 120,755 square feet or 2.7721 acres of land. ;_(11111 R T (� EXHThri' "R" C9nt acts and greemeuts I. Property Management Agreement with BMr Management, Inc. 2_ Office alarm system contract with Lone Star Alarm Systems 3. Storage unit Rental Agreements set forth below: • • I