Exhibit 10.73


 


Loan
Number V_46692


 


FIXED RATE NOTE


 


$6,125,000.00


 


November
23, 2004


 


FOR VALUE
RECEIVED, A-S 46 HWY 290-SPRING CYPRESS, L.P., a Texas limited partnership
(hereinafter referred to as “Borrower”),
promises to pay to the order of JPMORGAN CHASE BANK, N.A., a banking
association chartered under the laws of the United States of America, its
successors and assigns (hereinafter referred to as “Lender”), at the office of Lender or its agent, designee, or
assignee at 270 Park Avenue, New York, New York 10017, Attention: Loan
Servicing, or at such place as Lender or its agent, designee, or assignee may
from time to time designate in writing, the principal sum of SIX MILLION ONE
HUNDRED TWENTY-FIVE THOUSAND AND NO/100 DOLLARS ($6,125,000.00) in lawful money
of the United States of America, with interest thereon to be computed on the
unpaid principal balance from time to time outstanding at the Applicable
Interest Rate (hereinafter defined) at all times prior to the occurrence of an
Event of Default (as defined in the Security Instrument), and to be paid in
installments as set forth below. Unless otherwise herein defined, all initially
capitalized terms shall have the meanings given such terms in the Security
Instrument.


 


1. PAYMENT TERMS


 


Principal and interest
due under this Note shall be paid as follows:


 


(a)       A payment of interest only on the date
hereof for the period from the date hereof through November 30, 2004, both
inclusive; and


 


(b)       A constant payment of principal and
interest in the amount of $47,895.44. on the first day of January, 2005 and on
the first day of each calendar month thereafter up to and including the first
day of November, 2014;


 


with payments under this
Note to be applied as follows:


 


(i)        First, to the payment of interest and other
costs and charges due in connection with this Note or the Debt, as Lender may
determine in its sole discretion; and


 


(ii)       The balance shall be applied toward the
reduction of the principal sum;


 


and the balance of said
principal sum, together with accrued and unpaid interest and any other amounts
due under this Note shall be due and payable on the first day of December, 2014
or upon earlier maturity hereof whether by acceleration or otherwise (the “Maturity Date”). Interest on the principal
sum of this Note shall be calculated on the basis of a three hundred sixty
(360) day year and paid for the actual number of days elapsed. All amounts due
under this Note shall be payable without setoff, counterclaim or any other
deduction whatsoever.


 

















 


2. INTEREST


 


The term “Applicable Interest Rate” means from the
date of this Note through and including the Maturity Date, a rate of four and
eighty-three hundredths of one percent (4.83 %) per annum.


 


3. SECURITY


 


This Note is
secured by, and Lender is entitled to the benefits of, the Security Instrument,
the Assignment, the Environmental Indemnity, and the other Loan Documents
(hereinafter defined). The term “Security
Instrument” means the Deed of Trust and Security Agreement dated the
date hereof given by Borrower for the use and benefit of Lender covering the
estate of Borrower in certain premises as more particularly described therein
(which premises, together with all properties, rights, titles, estates and
interests now or hereafter securing the Debt and/or other obligations of
Borrower under the Loan Documents, are collectively referred to herein as the “Property”). The term “Assignment” means the Assignment of Leases
and Rents of even date herewith executed by Borrower in favor of Lender. The
term “Environmental Indemnity”
means the Environmental Indemnity Agreement of even date herewith executed by
Borrower in favor of Lender. The term “Guaranty” means that certain Guaranty of
even date herewith executed by Steven D. Alvis and Jay K. Sears in favor of
Lender The term “Loan Documents”
refers collectively to this Note, the Security Instrument, the Assignment, the
Environmental Indemnity, the Guaranty and any and all other documents executed
in connection with this Note or now or hereafter executed by Borrower and/or
others and by or in favor of Lender, which wholly or partially secure or
guarantee payment of this Note or pertain to the indebtedness evidenced by this
Note.


 


4. LATE FEE


 


If any installment
payable under this Note (including the final installment due on the Maturity
Date) is not received by Lender on or prior to the seventh (7th) calendar day after the same
is due (without regard to any applicable cure and/or notice period), Borrower
shall pay to Lender upon demand an amount equal to the lesser of (a) five
percent (5%) of such unpaid sum or (b) the maximum amount permitted by
applicable law to defray the expenses incurred by Lender in handling and
processing such delinquent payment and to compensate Lender for the loss of the
use of such delinquent payment, and such amount shall be secured by the Loan
Documents.


 


5. DEFAULT AND ACCELERATION


 


So long as an
Event of Default exists, Lender may, at its option, without notice or demand to
Borrower, declare the Debt immediately due and payable. All remedies hereunder,
under the Loan Documents and at law or in equity shall be cumulative. In the
event that it should become necessary to employ counsel to collect the Debt or
to protect or foreclose the security for the Debt or to defend against any
claims asserted by Borrower arising from or related to the Loan Documents,
Borrower also agrees to pay to Lender on demand all reasonable costs of
collection or defense incurred by Lender, including reasonable attorneys’ fees
for the services of counsel whether or not suit be brought.


 


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6. DEFAULT INTEREST


 


So long as an
Event of Default exists, Borrower shall pay interest on the then unpaid
principal sum and any other unpaid amounts due under the Loan Documents at the
rate equal to the lesser of (a) the maximum rate permitted by applicable law,
or (b) the greater of (i) five percent (5%) above the Applicable Interest Rate
or (ii) five percent (5%) above the Prime Rate (hereinafter defined), in effect
at the time of the occurrence of the Event of Default (the “Default Rate”). The term “Prime Rate” means the prime rate reported
in the Money Rates section of The Wall
Street Journal. In the event that The
Wall Street Journal should cease or temporarily interrupt
publication, the term “Prime Rate”
shall mean the daily average prime rate published in another business
newspaper, or business section of a newspaper, of national standing and general
circulation chosen by Lender. In the event that a prime rate is no longer
generally published or is limited, regulated or administered by a governmental
or quasi-governmental body, then Lender shall select a comparable interest rate
index which is readily available and verifiable to Borrower but is beyond
Lender’s control. The Default Rate shall be computed from the occurrence of the
Event of Default until the actual receipt and collection of a sum of money
determined by Lender to be sufficient to cure the Event of Default. Amounts of
interest accrued at the Default Rate shall constitute a portion of the Debt,
and shall be deemed secured by the Loan Documents. This clause, however, shall
not be construed as an agreement or privilege to extend the date of the payment
of the Debt, nor as a waiver of any other right or remedy accruing to Lender by
reason of the occurrence of any Event of Default.


 


7. PREPAYMENT


 


(a) Except as
otherwise expressly provided in this Section 7, the principal balance of
this Note may not be prepaid in whole or in part (except with respect to the
application of casualty or condemnation proceeds) prior to the Maturity Date.
If during the existence of any Event of Default, Borrower shall tender any
payment to Lender (other than regularly scheduled payments of principal and
interest) or Lender shall receive proceeds (whether through foreclosure or the
exercise of the other remedies available to Lender under the Security
Instrument or the other Loan Documents), which shall constitute a full or
partial prepayment of the principal balance of this Note, such payment or
receipt of proceeds shall constitute a prepayment in violation of the
provisions of this Section 7, and Borrower shall pay in addition to
interest accrued and unpaid on the principal balance of this Note and all other
sums then due under this Note and the other Loan Documents, a prepayment
consideration in an amount equal to the greater of (A) one percent (1%) of the
outstanding principal balance of this Note at the time such prepayment is
tendered or received, or (B) (x) the present value as of the date such prepayment
is tendered or received of the remaining scheduled payments of principal and
interest from the date such prepayment is tendered or received through the
Maturity Date (including any balloon payment) determined by discounting such
payments at the Discount Rate (as hereinafter defined), less (y) the amount of
the prepayment tendered or received. The term “Discount
Rate” means the rate which, when compounded monthly, is equivalent
to the Treasury Rate (as hereinafter defined), when compounded semi-annually.
The term “Treasury Rate” means the
yield calculated by the linear interpolation of the yields, as reported in
Federal Reserve Statistical Release H.15-Selected Interest Rates under the
heading “U.S. Government Securities/Treasury Constant Maturities” for the week
ending prior to the date the payment or such proceeds are received, of U.S.
Treasury constant maturities with maturity dates (one longer


 


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and one shorter) most
nearly approximating the Maturity Date. In the event Release H.I5 is no longer
published, Lender shall select a comparable publication to determine the
Treasury Rate. Lender shall notify Borrower of the amount and the basis of
determination of the required prepayment consideration, which shall be
conclusive, except in the case of manifest error. Notwithstanding the
foregoing, Borrower shall have the additional privilege to prepay the entire
principal balance of this Note (together with any other sums constituting the
Debt) on any scheduled payment date occurring on or after that date which is twelve
(12) months preceding the Maturity Date without any fee or prepayment
consideration for such privilege.


 


(b)       If the prepayment results from the
application to the Debt of the casualty or condemnation proceeds from the
Property, no prepayment consideration will be imposed. Partial prepayments of
principal resulting from the application of casualty or condemnation proceeds
to the Debt shall not change the amounts of subsequent monthly installments nor
change the dates on which such installments are due, unless Lender shall
otherwise agree in writing.


 


(c)       (i)        Notwithstanding
any provision of this Section 7 to the contrary, at any time after the
earlier of (1) the date which is two (2) years after the “startup day,” within
the meaning of Section 860G(a)(9) of the Internal Revenue Code of 1986, as
amended from time to time, or any successor statute (the “Code”), of a “real
estate mortgage investment conduit,” within the meaning of Section 860D of the
Code, that holds this Note, and (2) a regularly scheduled payment date on or
after that date which is four (4) years after the date of the first monthly
payment due under Section l(b), and provided no Event of Default (or any event
which with the passage of time or the giving of notice, or both, could become
an Event of Default) has occurred under the Security Instrument or under any of
the Loan Documents and is still continuing, Borrower may cause the release of
the Property (in whole but not in part) from the lien of the Security
Instrument and the other Loan Documents upon the satisfaction of the following
conditions precedent:


 


(A)      the delivery of not less than sixty (60)
days prior written notice to Lender specifying a regularly scheduled payment
date (the “Release Date”) on which the Defeasance Deposit (hereinafter defined)
is to be made;


 


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


 


(C)       the payment to Lender of all other unpaid
sums, not including scheduled interest or principal payments, due under this
Note, the Security Instrument and the other Loan Documents;


 


(D)      the payment to Lender of the Defeasance
Deposit; and


 


(E)       the delivery to Lender of:


 


(1)        a security agreement, in form and
substance satisfactory to Lender, creating a first priority lien on the
Defeasance Deposit and the U.S. Obligations (hereinafter defined) purchased on
behalf of Borrower with the Defeasance Deposit in accordance with this
subparagraph (the “Security Agreement”);


 


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(2)        a release of the Property from the lien
of the Security Instrument (for execution by Lender) in a form appropriate for
the jurisdiction in which the Property is located;


 


(3)        an officer’s certificate of Borrower
certifying that the requirements set forth in this Subsection (c)(i)
have been satisfied;


 


(4)        an opinion of counsel in form
satisfactory to Lender stating, among other things, that defeasance of this
Note will not cause any adverse consequences to any REMIC holding the Loan or
the holders of any securities issued by the REMIC or result in a taxation of
the income from the Loan to such REMIC or cause a loss of REMIC status, and
that Lender has a perfected first priority security interest in the Defeasance
Deposit and the U.S. Obligations purchased by Lender on behalf of Borrower;


 


(5)        an opinion of a certified public
accountant acceptable to Lender to the effect that the Defeasance Deposit is
adequate to provide payment on or prior to, but as close as possible to, all
successive scheduled payment dates after the Release Date upon which interest
and principal payments are required under this Note (including the amounts due
on the Maturity Date) and in amounts equal to the scheduled payments due on
such dates under this Note;


 


(6)        evidence in writing from the applicable
Rating Agencies to the effect that such release will not result in a
re-qualification, reduction or withdrawal of any rating in effect immediately
prior to such defeasance for any Securities;


 


(7)        payment of all of Lender’s expenses
incurred in connection with the defeasance including, without limitation,
reasonable attorneys fees; and


 


(8)        such other certificates, documents or
instruments as Lender may reasonably request.


 


In connection with
the conditions set forth in Subsection (c)(i)(E) above, Borrower hereby
appoints Lender as its agent and attorney-in-fact for the purpose of using the
Defeasance Deposit to purchase U.S. Obligations which provide payment on or
prior to, but as close as possible to, all successive scheduled payment dates
after the Release Date upon which interest and principal payments are required
under this Note (including the amounts due on the Maturity Date) and in amounts
equal to the scheduled payments due on such dates under this Note (the “Scheduled
Defeasance Payments”). Borrower, pursuant to the Security Agreement or
other appropriate document, shall authorize and direct that the payments
received from the U.S. Obligations may be made directly to Lender and applied
to satisfy the obligations of the Borrower under this Note.


 


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(ii)       Upon compliance with the requirements of
this Subsection (c), the Property shall be released from the lien of the
Security Instrument and the pledged U.S. Obligations shall be the sole source
of collateral securing this Note. Any portion of the Defeasance Deposit in
excess of the amount necessary to purchase the U.S. Obligations required by Subsection
(c)(i) above and satisfy the
Borrower’s obligations under this Subsection (c) shall be remitted to
the Borrower with the release of the Property from the lien of the Security
Instrument.


 


(iii)      For purposes of this Subsection (c), the following terms shall have the
following meanings:


 


(A)      The term “Defeasance
Deposit” shall mean an amount equal to 100% of the remaining unpaid
principal amount of this Note, the Yield Maintenance Premium, any reasonable
costs and expenses incurred or to be incurred in the purchase of the U.S.
Obligations necessary to meet the Scheduled Defeasance Payments and any
revenue, documentary stamp or intangible taxes or any other tax or charge due
in connection with the transfer of this Note or otherwise required to
accomplish the agreements of this Subsection (c);


 


(B)       The term “Yield Maintenance Premium” shall mean the amount (if any)
which, when added to the remaining unpaid principal amount of this Note, will
be sufficient to purchase U.S. Obligations providing the required Scheduled
Defeasance Payments; and


 


(C)       The term “U.S. Obligations”  shall
mean direct non-callable obligations of the United States of America.


 


(iv)      Upon the release of the Property in
accordance with this Subsection (c), Borrower shall, at Lender’s
request, assign all its obligations and rights under this Note, together with
the pledged Defeasance Deposit, to a successor special purpose entity
designated by Borrower and approved by Lender in its reasonable discretion.
Such successor entity shall execute an assumption agreement in form and
substance reasonably satisfactory to Lender pursuant to which it shall assume
Borrower’s obligations under this Note and the Security Agreement. In
connection with such assignment and assumption, Borrower shall (x) deliver to
Lender an opinion of counsel in form and substance and delivered by counsel
satisfactory to Lender in its reasonable discretion stating, among other
things, that such assumption agreement is enforceable against Borrower and such
successor entity in accordance with its terms and that this Note, the Security
Agreement and the other Loan Documents, as so assumed, are enforceable against
such successor entity in accordance with their respective terms, and (y) pay
all costs and expenses incurred by Lender or its agents in connection with such
assignment and assumption (including, without limitation, the review of the
proposed transferee and the preparation of the assumption agreement and related
documentation). In connection with such assignment and assumption, Borrower and
any Guarantor shall be released of all personal liability under the Note and
the other Loan Documents, but only as to acts or events occurring after the
closing of such assignment and assumption.


 


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(v)       Upon the release of the Property in
accordance with this Subsection (c), Borrower
shall have no further right to prepay this Note pursuant to the other
provisions of this Section 7 or otherwise.


 


8. SAVINGS CLAUSE


 


This Note is
subject to the express condition that at no time shall Borrower be obligated or
required to pay interest on the principal balance due hereunder at a rate which
could subject Lender to either civil or criminal liability as a result of being
in excess of the maximum interest rate which Borrower is permitted by
applicable law to contract or agree to pay. If by the terms of this Note,
Borrower is at any time required or obligated to pay interest on the principal
balance due hereunder at a rate in excess of such maximum rate, the Applicable
Interest Rate or the Default Rate, as the case may be, shall be deemed to be
immediately reduced to such maximum rate and all previous payments in excess of
the maximum rate shall be deemed to have been payments in reduction of
principal and not on account of the interest due hereunder. All sums paid or
agreed to be paid to Lender for the use, forbearance, or detention of the Debt,
shall, to the extent permitted by applicable law, be amortized, prorated,
allocated, and spread throughout the full stated term of this Note until
payment in full so that the rate or amount of interest on account of the Debt
does not exceed the maximum lawful rate of interest from time to time in effect
and applicable to the Debt for so long as the Debt is outstanding. Notwithstanding
anything to the contrary contained herein or in any of the other Loan
Documents, it is not the intention of Lender to accelerate the maturity of any
interest that has not accrued at the time of such acceleration or to collect
unearned interest at the time of such acceleration.


 


9. WAIVERS


 


(a)       Except as specifically provided in the
Loan Documents, Borrower and any endorsers, sureties or guarantors hereof
jointly and severally waive presentment and demand for payment, notice of
intent to accelerate maturity, notice of acceleration of maturity, protest and
notice of protest and non-payment, all applicable exemption rights, valuation
and appraisement, notice of demand, and all other notices in connection with
the delivery, acceptance, performance, default or enforcement of the payment of
this Note and the bringing of suit and diligence in taking any action to
collect any sums owing hereunder or in proceeding against any of the rights and
collateral securing payment hereof. Borrower and any surety, endorser or
guarantor hereof agree that any or all of the following events may occur
without notice to them and without in any manner affecting their liability
under or with respect to this Note: (i) the time for any payments hereunder may
be extended from time to time without notice and consent, (ii) the acceptance
by Lender of further collateral, (iii) the release by Lender of any existing
collateral for the payment of this Note, (iv) any and all renewals, waivers or
modifications that may be granted by Lender with respect to the payment or
other provisions of this Note, and/or (v) additional Borrowers, endorsers,
guarantors or sureties may become parties hereto. No extension of time for the
payment of this Note or any installment hereof shall affect the liability of
Borrower under this Note or any endorser or guarantor hereof even though the
Borrower or such endorser or guarantor is not a party to such agreement.


 


(b)       Failure of Lender to exercise any of the
options granted herein to Lender upon the happening of one or more of the
events giving rise to such options shall not constitute a waiver


 


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of the right to exercise
the same or any other option at any subsequent time in respect to the same or
any other event. The acceptance by Lender of any payment hereunder that is less
than payment in full of all amounts due and payable at the time of such payment
shall not constitute a waiver of the right to exercise any of the options
granted herein to Lender at that time or at any subsequent time or nullify any
prior exercise of any such option without the express written acknowledgment of
the Lender.


 


10. EXCULPATION


 


(a)       Notwithstanding anything in the Loan
Documents to the contrary, but subject to the qualifications below, Lender and
Borrower agree that:


 


(i)        Borrower shall be liable upon the Debt
and for the other obligations arising under the Loan Documents to the full
extent (but only to the extent) of Borrower’s interest in the Property; provided,
however, that in the event (A) of fraud, willful misconduct or material
misrepresentation by Borrower, its general partners, if any, its members, if
any, its principals, if any, or by any Guarantor in connection with the loan
evidenced by this Note, (B) of a breach or default under Section 4.3 or Article
8 of the Security Instrument, or (C) the Property or any part thereof
becomes an asset in a voluntary bankruptcy or insolvency proceeding, the
limitation on recourse set forth in this Subsection 10(a) will be null
and void and completely inapplicable, and this Note shall be with full recourse
to Borrower.


 


(ii)       If an Event of Default occurs and is
continuing, Lender shall not enforce the liability and obligation of Borrower
to perform and observe the obligations contained in this Note or the Security
Instrument by any action or proceeding wherein a money judgment shall be sought
against Borrower, except that Lender may bring a foreclosure action, action for
specific performance or other appropriate action or proceeding to enable Lender
to enforce and realize upon the Security Instrument or any of the Other Loan
Documents and the interest in the Property, the Rents and any other collateral
for which a lien or security interest has been granted in favor of Lender under
the Security Instrument and the Other Loan Documents; provided,  however,
that any judgment in any action or proceeding shall be enforceable against
Borrower only to the extent of Borrower’s interest in the Property, in the
Rents and in any other collateral for which a lien or security interest has
been granted in favor of Lender under the Security Instrument and the other
Loan Documents. Lender, by accepting this Note and the Security Instrument,
agrees that it shall not, except as otherwise herein provided (and only to the
extent herein provided), sue for, seek or demand any deficiency judgment
against Borrower in any action or proceeding, under or by reason of or in
connection with this Note, the Other Loan Documents or the Security Instrument.


 


(iii)      The provisions of this Subsection l0(a)
shall not (A) constitute a waiver, release or impairment of any obligation
evidenced or secured by this Note, the Other Loan Documents or the Security
Instrument; (B) impair the right of Lender to name Borrower as a party
defendant in any action or suit for judicial foreclosure and sale under the
Security Instrument; (C) affect the validity or enforceability of any
indemnity, guaranty, master lease or similar instrument made in connection with
this Note, the Security Instrument, or the Other Loan Documents; (D) impair the
right of Lender to obtain the appointment of a receiver; (E) impair the
enforcement of the Assignment executed in connection herewith; (F) impair the
right of Lender


 


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to enforce the provisions
of Article 11 of the Security Instrument; or (G) impair the right of
Lender to obtain a deficiency judgment or judgment on this Note against
Borrower if necessary to obtain any insurance proceeds or condemnation awards
to which Lender would otherwise be entitled under the Security Instrument; provided,
however, Lender shall only enforce such judgment against the insurance
proceeds and/or condemnation awards.


 


(iv)      Notwithstanding the provisions of this
Article to the contrary, Borrower shall be personally liable to Lender for the
Losses (as defined under the Guaranty) Lender incurs due to: (A) the
misapplication or misappropriation of Rents by Borrower or Guarantor; (B) the
misapplication or misappropriation of insurance proceeds or condemnation awards
by Borrower or Guarantor; (C) Borrower’s failure to return or to reimburse
Lender for all Personal Property taken from the Property by or on behalf of
Borrower and not replaced with Personal Property of substantially the same
utility and of substantially the same or greater value; (D) any act of
intentional waste or arson by Borrower, any principal, general partner or
member thereof or by any Guarantor; (E) any fees or commissions paid by
Borrower to any principal, affiliate, general partner or member of Borrower or
any Guarantor in violation of the terms of this Note, the Security Instrument
or the Other Loan Documents; (F) Borrower’s failure to comply with the
environmental indemnification provisions of Article 11 of the Security
Instrument; or (G) any breach of the Environmental Indemnity.


 


(b)       Nothing herein shall be deemed to be a
waiver of any right which Lender may have under Sections 506(a), 506(b),
1111(b) or any other provisions of the Bankruptcy Code to file a claim for the
full amount of the Debt or to require that all collateral shall continue to
secure all of the Debt, owing to Lender in accordance with this Note, the
Security Instrument and the Other Loan Documents.


 


11. AUTHORITY


 


Borrower (and the
undersigned representative of Borrower, if any) represents that Borrower has
full power, authority and legal right to execute, deliver and perform its
obligations pursuant to this Note and the other Loan Documents and that this
Note and the other Loan Documents constitute legal, valid and binding
obligations of Borrower. Borrower further represents that the loan evidenced by
the Loan Documents was made for business or commercial purposes and not for
personal, family or household use.


 


12. NOTICES


 


All notices or
other communications required or permitted to be given pursuant hereto shall be
given in the manner and be effective as specified in the Security Instrument,
directed to the parties at their respective addresses as provided therein.


 


13. TRANSFER


 


Lender shall have
the unrestricted right at any time or from time to time to sell this Note and
the loan evidenced by this Note and the Loan Documents or participation
interests therein. Borrower shall execute, acknowledge and deliver any and all
instruments reasonably requested by Lender to satisfy such purchasers or
participants that the unpaid indebtedness evidenced by this Note is outstanding
upon the terms and provisions set out in this Note and the other Loan


 


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Documents. To the extent,
if any, specified in such assignment or participation, such assignee(s) or
participant(s) shall have the rights and benefits with respect to this Note and
the other Loan Documents as such assignee(s) or participant(s) would have if
they were the Lender hereunder.


 


14. WAIVER OF TRIAL BY JURY


 


BORROWER HEREBY AGREES NOT TO ELECT A TRIAL BY JURY OF
ANY ISSUE TRIABLE OF RIGHT BY JURY, AND WAIVES ANY RIGHT TO TRIAL BY JURY FULLY
TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST WITH REGARD TO
THIS NOTE OR THE OTHER LOAN DOCUMENTS, OR ANY CLAIM, COUNTERCLAIM OR OTHER
ACTION ARISING IN CONNECTION THEREWITH INCLUDING, BUT NOT LIMITED TO, THOSE
RELATING TO (A) ALLEGATIONS THAT A PARTNERSHIP EXISTS BETWEEN LENDER AND
BORROWER; (B) USURY OR PENALTIES OR DAMAGES THEREFOR; (C) ALLEGATIONS OF
UNCONSCIONABLE ACTS, DECEPTIVE TRADE PRACTICE, LACK OF GOOD FAITH OR FAIR
DEALING, LACK OF COMMERCIAL REASONABLENESS, OR SPECIAL RELATIONSHIPS (SUCH AS
FIDUCIARY, TRUST OR CONFIDENTIAL RELATIONSHIP); (D) ALLEGATIONS OF DOMINION,
CONTROL, ALTER EGO, INSTRUMENTALITY, FRAUD, REAL ESTATE FRAUD,
MISREPRESENTATION, DURESS, COERCION, UNDUE INFLUENCE, INTERFERENCE OR
NEGLIGENCE; (E) ALLEGATIONS OF TORTIOUS INTERFERENCE WITH PRESENT OR
PROSPECTIVE BUSINESS RELATIONSHIPS OR OF ANTITRUST; OR (F) SLANDER, LIBEL OR
DAMAGE TO REPUTATION. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY
AND VOLUNTARILY BY BORROWER, AND IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH
INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY JURY WOULD
OTHERWISE ACCRUE. LENDER IS HEREBY AUTHORIZED TO FILE A COPY OF THIS PARAGRAPH
IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER BY BORROWER.


 


15. APPLICABLE LAW


 


This Note shall be
governed by and construed in accordance with the laws of the state in which the
real property encumbered by the Security Instrument is located (without regard
to any conflict of laws or principles) and the applicable laws of the United
States of America.


 


16. JURISDICTION


 


BORROWER HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION
OF ANY COURT OF COMPETENT JURISDICTION LOCATED IN THE STATE IN WHICH THE
PROPERTY IS LOCATED IN CONNECTION WITH ANY PROCEEDING ARISING OUT OF OR
RELATING TO THIS NOTE.


 


17. NO ORAL CHANGE


 


The provisions of
this Note and the Loan Documents may be amended or revised only by an
instrument in writing signed by the Borrower and Lender. This Note and all the
other Loan Documents embody the final, entire agreement of Borrower and Lender
and supersede any and


 


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all prior commitments,
agreements, representations and understandings, whether written or oral,
relating to the subject matter hereof and thereof and may not be contradicted
or varied by evidence of prior, contemporaneous or subsequent oral agreements
or discussions of Borrower and Lender. There are no oral agreements between
Borrower and Lender.


 


11

















 


This FIXED RATE
NOTE is executed as of the day and year first above written.


 


	
   

  	
  BORROWER:

  
	
   

  	
   

  
	
   

  	
  A-S 46 HWY 290-SPRING
  CYPRESS, L P., a Texas 

  
	
   

  	
  limited partnership

  
	
   

  	
   

  
	
   

  	
  By:

  	
  A-S 46, L.C., a Texas
  limited liability company, its 

  General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  Steven D. Alvis

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Steven D. Alvis

  
	
   

  	
   

  	
  Title:

  	
  Member-Manager

  
						



 

















 





 


ALLONGE


 


	
   Loan
  # 3149

  	
   

  
	
  Asset
  Name:

  	
  CY-Fair Town Center

  
	
   

  	
  17445 Spring-Cypress Road

  
	
   

  	
  Houston, TX 77429

  



 


Allonge
endorsement on December 29, 2004 attached to the Note in the stated original
principal amount of 6125000 executed by A-S 46 Hwy 290 - Spring Cypress, L.P.,


 


Pay to the order
of Wells Fargo Bank, N.A., as trustee for the
registered Holders of J.P. Morgan Chase Commercial Mortgage Securities Corp.,
Commercial Mortgage Pass-Through Certificates, Series 2004-C3, without
recourse, representation or warranty, expressed or implied.


 


 


	
   

  	
   

  	
  JPMorgan Chase Bank,
  N.A.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Jordan Walder

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Jordan Walder

  
	
   

  	
   

  	
  Title:

  	
  Authorized Signatory