DEED OF TRUST, ASSIGNMENT OF RENTS AND LEASES, SECURITY AGREEMENT AND FIXTURE FILING FSP PHOENIX TOWER LIMITED PARTNERSHIP GRANTOR, AND FRANKLIN STREET PROPERTIES CORP. BENEFICIARY December 4, 2008
Exhibit
10.2
DEED
OF TRUST,
ASSIGNMENT
OF RENTS AND LEASES,
FSP
PHOENIX TOWER LIMITED PARTNERSHIP
GRANTOR,
AND
FRANKLIN
STREET PROPERTIES CORP.
BENEFICIARY
December
4, 2008
DEED
OF TRUST, ASSIGNMENT OF RENTS AND
THIS
DEED OF TRUST, ASSIGNMENT OF RENTS AND LEASES, SECURITY AGREEMENT AND FIXTURE
FILING (“Deed of Trust”), made this 4th day of
December, 2008, by FSP PHOENIX TOWER LIMITED PARTNERSHIP, a Texas limited
partnership (“Grantor”), whose address is 000 Xxxxxxxxx Xxxxx, Xxxxx 000,
Xxxxxxxxx, Xxxxxxxxxxxxx 00000-0000 to the XXXXX X. XXXXXX, ESQUIRE (“Trustee”),
whose address is c/o Greenberg Traurig LLP, 0000 Xxxx Xxxxxx, Xxxxx 0000,
Xxxxxx, Xxxxx 00000, for the use and benefit of FRANKLIN STREET PROPERTIES
CORP., a Maryland corporation (“Beneficiary”), whose address is 000 Xxxxxxxxx
Xxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxxxxxxx 00000-0000.
RECITALS
A. The
Grantor is indebted to Beneficiary in the amount of Fifteen Million and 00/100
Dollars ($15,000,000.00), as evidenced by that certain Secured Promissory Note
(Revolving) of even date herewith (the “Note”) executed by Grantor which is
payable with interest thereon at the rate and on the terms as provided in the
Note. The Note evidences a revolving credit arrangement and amounts
borrowed may be repaid and reborrowed. If not sooner paid, the final
payment of interest and principal on the Note shall be due November 30,
2011;
B. The
Grantor is the owner of the real property situated in the County of Xxxxxx,
State of Texas, described in Exhibit A attached
hereto, and by this reference incorporated herein (the “Land”), which, together
with all easements, appurtenances, and hereditaments thereto and the real
property interests referred to in (a), (b), and (c) below, is referred to as the
“Real Property.”
C. The
Grantor desires to secure the payment of the principal and interest of the Note
to the holder thereof and the performance of all of the covenants of the Loan
Documents (as hereinafter defined).
NOW,
THEREFORE, the Grantor, in consideration of the premises, and for the purposes
aforesaid, does hereby grant, bargain, sell, convey, transfer, assign and set
over to the Trustee, with general warranty unto Trustee, in trust forever, the
Real Property.
TOGETHER
WITH and INCLUDING:
(a) All
buildings and improvements now or hereafter located on the Land
(“Improvements”);
(b) All
oil, gas, minerals and appurtenances now or hereafter belonging or in any manner
appurtenant to the Land, and all the reversions, remainders, rents, issues and
profits thereof;
(c) All
easements, rights-of-way, gores of land, streets, ways, alleys, passages and all
estates, rights, titles, interests and privilege and appurtenances in any way
pertaining to the Land, and all land lying in the bed of any street, road or
avenue adjoining the Land to the centerline thereof;
(d) All
water, water rights, shares of stock evidencing water rights, claims to water,
and agreements relating to the supply of water to the Real Property, whether
real or personal, now or hereafter (i) appurtenant thereto, (ii) made or used in
connection therewith, or (iii) arising from the ownership thereof, and all the
reversions, remainders, rents, issues and profits thereof;
(e) All
of Grantor’s right, title and interest in and to all chattels (“Chattels”),
including all fixtures, fittings, furniture, furnishings, appliances, apparatus,
equipment and machinery now or hereafter delivered to and located on the Real
Property and intended to be installed or used therein;
(f) All
of Grantor’s right, title and interest in and to all contract rights, and
intangible personal property pertaining to the Real Property (“Personalty”),
including: all judgments, awards of damages and settlements made as a
result of or in lieu of any taking of the Real Property or any part thereof or
interest therein under the power of eminent domain, or for any damage (whether
caused by such taking or otherwise) to the Real Property or the improvements on
the Real Property or any part thereof or interest therein, and trademarks,
logos, good will, and books and records relating to the Real
Property.
The
property described in subparagraphs (d), (e) and (f) above is sometimes
hereinafter collectively referred to as the “Personal Property
Collateral.” The Real Property and Personal Property Collateral are
collectively referred to herein as the “Property.”
TO HAVE AND TO HOLD the Property unto Trustee, and his
or their successors or substitutes in this trust, and to his or their successors
and assigns, in trust, in fee simple forever, subject to the terms, provisions
and conditions herein set forth, to secure the obligations of Grantor under the
Note and Loan Documents (as hereinafter defined) and all other
indebtedness (collectively referred
to as the “Indebtedness”), including without limitation the
following:
(i) payment
of the principal and interest and prepayment premium, if any, set forth in the
Note;
(ii) payment
of the Advance Fee (as defined in the Note);
(iii) the
performance and observance of all terms, covenants, conditions, and provisions
to be performed or observed by the Grantor pursuant to the terms of the Note and
this Deed of Trust. The Note, this Deed of Trust, and any and all
other documents or instruments executed in connection with the foregoing to
evidence or secure the Note shall hereinafter be collectively referred to as the
“Loan Documents”;
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(iv) the
payment of all sums expended or advanced by Beneficiary pursuant to the terms of
the Loan Documents; and
(v) all other loans and future advances made by Beneficiary
to Grantor and all other debts, obligations and liabilities of Grantor of every
kind and character now or hereafter existing in favor of Beneficiary, whether
direct or indirect, primary or secondary, joint or several, fixed or contingent,
secured or unsecured, and whether originally payable to Beneficiary or to a
third party and subsequently acquired by Beneficiary, it being contemplated that
Grantor may hereafter become indebted to Beneficiary for such further debts,
obligations and liabilities.
ARTICLE
1
Grantor’s Covenants,
Representations and Warranties
Grantor
covenants and agrees with, and represents and warrants to, Trustee and
Beneficiary that:
1.1 Title.
(a) Grantor
covenants, represents and warrants that (a) it has good and marketable title to
the Real Property, subject to any recorded liens, charges or encumbrances; (b)
it has full power and authority to grant, bargain, sell and convey the Property
in the manner and form herein done or intended hereafter to be done; and (c)
Grantor and its successors and assigns shall warrant and defend the same forever
against the claims and demands of all persons.
(b) Grantor
shall, at the cost of Grantor, and without expense to Beneficiary, execute,
acknowledge and deliver such further conveyances and assurances as Beneficiary
shall from time to time require, for better assuring, conveying, assigning,
transferring and confirming unto Trustee or Beneficiary the property rights
hereby conveyed or assigned. Grantor shall pay all filing, recording
and title fees and any other expenses in connection therewith during the term of
the Loan, including without limitation filing and recording fees for Uniform
Commercial Code continuation statements.
1.2 Payment of
Note. Grantor shall promptly and punctually pay all principal
and interest, prepayment premium, if any, and all other sums due or to become
due in respect of the Note, including the Advance Fee (as defined in the Note),
according to the provisions thereof.
1.3 Waste. Grantor
shall not commit or suffer any physical waste on the
Property. Beneficiary shall have the right to inspect the Property
from time to time upon reasonable advance notice to Grantor, subject to the
rights of parties in possession.
1.4 Compliance with
Laws. Grantor shall comply with all laws, statutes, codes,
rules, regulations, orders, decrees, ordinances, covenants, conditions and
restrictions now or hereafter affecting the Property or the operation thereof,
and shall pay all fees or charges of any kind in connection
therewith.
1.5 Insurance.
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(a) Grantor
shall maintain the following insurance:
(i) Insurance
against loss or damage by “all risk” coverage perils (including the cost of
debris removal) in an amount equal to the greater of (A) the outstanding
principal balance of the Loan, or (B) the full replacement cost of the
improvements situated on the Real Property less a deductible not to exceed
Twenty-Five Thousand Dollars ($25,000).
(ii) Comprehensive
general public liability insurance against claims for bodily injury, death or
property damage occurring on, in or about the Real Property, such insurance to
afford protection of not less than Two Million Dollars ($2,000,000) per
occurrence less a deductible not to exceed Twenty-Five Thousand Dollars
($25,000) and a deductible not to exceed Five Hundred Thousand Dollars
($500,000) for windstorm. Beneficiary shall be named as an additional
insured on such policies.
(b) The
coverage and deductible amounts described above in Section 1.5(a) may be
adjusted annually upon written request from Grantor to Beneficiary to reasonably
reflect changes in the insurance industry.
(c) All
policies of insurance to be furnished hereunder shall be issued by companies and
be in forms and amounts with Standard Mortgagee clauses attached, with
endorsements and including a provision requiring that the coverage evidenced
thereby shall not be canceled, terminated, reduced or materially modified by the
insurer or any insured without thirty (30) days’ prior written notice to
Beneficiary.
(d) In
the event of a foreclosure or other transfer of title to the Property in lieu of
foreclosure, or by purchase at the foreclosure sale, or by the exercise of power
of sale, all interest in any insurance policies in force and any unearned
premiums thereon shall pass to Beneficiary, transferee or purchaser as the case
may be.
1.6 Casualty. Grantor
shall promptly notify Beneficiary of any loss or damage by fire or other
casualty, whether covered by insurance or not. In case of loss or
damage by fire or other casualty, Grantor shall be entitled to the proceeds of
any insurance for the purpose of reconstruction of any improvements on the Real
Property; but if Grantor elects not to reconstruct, then Beneficiary may apply
the proceeds to the Indebtedness without premium or penalty.
1.7 Condemnation. Immediately
upon obtaining knowledge of the institution of any proceeding for the
condemnation of the Real Property or any portion thereof, Grantor shall notify
Beneficiary of the pendency thereof. Grantor, as security for the
Indebtedness, hereby assigns, transfers and sets over unto Beneficiary all
compensation, rights of action, the entire proceeds of any award and any claim
for damages to the Real Property or any portion thereof taken or damaged under
the power of eminent domain or by condemnation or by transfer in lieu
thereof. Beneficiary, at its option, may commence, appear in and
prosecute, in its own name, any action or proceeding, or make any compromise or
settlement, in connection with such condemnation or taking under the power of
eminent domain or sale in lieu thereof; provided, however, that so long as no
Event of Default then exists hereunder, Beneficiary shall not make any
compromise or settlement without the prior written consent of Grantor, which
consent shall not be unreasonably withheld or delayed. After
deducting therefrom all of its expenses, including attorneys’ fees, such
proceeds shall be applied to the Indebtedness, whether due or not, without
payment of any prepayment premium.
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1.8 Priority of Lien of Deed of
Trust. This Deed of Trust shall be subject and subordinate to
any and all leases, easements, covenants, conditions or similar documents now or
hereafter covering all or any part of the Property or any improvements now or
hereafter located thereon. This subordination is self-effecting,
however Beneficiary shall from time to time upon the request of Grantor, execute
such other instruments and documents as may be reasonably required to further
evidence the subordination of this Deed of Trust as set forth
herein.
1.9 Taxes and
Assessments. Grantor shall pay in full, at least ten (10) days
prior to delinquency, all taxes and assessments against the Real Property, and
shall promptly furnish to Beneficiary official receipts evidencing the payment
thereof if requested by Beneficiary in writing.
1.10 Indemnification. Grantor
shall appear in and defend any suit, action or proceeding that might in any way
and in the sole judgment of Beneficiary affect the title to the Property, the
validity, enforceability or priority of this Deed of Trust or any other Loan
Document or the rights and powers of Trustee or Beneficiary. Grantor
shall, and does hereby agree to, at all times, indemnify, hold harmless and, on
demand, reimburse Beneficiary for any and all loss, damage, expense or cost,
including without limitation cost of evidence of title and attorneys’ fees,
arising out of or incurred in connection with any such suit, action or
proceeding, or any claim (whether or not any suit, action or proceeding with
respect thereto is commenced) pertaining to any of the matters specified in this
Section 1.10, and the sum of any expenditures made by Beneficiary in connection
with such loss, damage, expense or cost shall be secured by this Deed of Trust,
shall bear interest at the Default Rate from the date of expenditure until
repaid to Beneficiary, and shall be due and payable on demand.
1.11 Sale of Property;
Encumbrances. If the Real Property or any part thereof or
interest therein is sold, assigned, transferred, conveyed, leased, exchanged,
encumbered, hypothecated, mortgaged or otherwise alienated by Grantor, whether
voluntarily, involuntarily or by operation of law, without the prior written
consent of Beneficiary, excluding (i) occupancy leases entered into by Grantor;
(ii) easements for utility purposes; and (iii) transfers of shares of stock in
Grantor by the holders thereof, the occurrence of any such event shall
constitute an Event of Default under this Deed of Trust.
1.12 Advances. If
Grantor shall fail to perform any of the covenants contained herein or in any
other Loan Document, other than the covenants to pay interest and principal
pursuant to the Note, within fifteen (15) days after receipt of written notice
of such failure by Grantor from Beneficiary (except that if, in Beneficiary’s
sole opinion, such failure constitutes an emergency situation which could
jeopardize or impair Beneficiary’s security, no such notice and grace period
shall be applicable), Beneficiary may, but without obligation to do so, make
advances to perform the same on behalf of Grantor. All sums so
advanced shall be secured by this Deed of Trust, shall bear interest at the
Default Rate from the date of advance until repaid to Beneficiary, and shall be
due and payable within five (5) days following demand. No such
substitute performance shall excuse or cure an Event of Default
hereunder.
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1.13 Assignment of Rents and
Leases. As additional security for the Indebtedness secured
hereby, Grantor does hereby bargain, sell, transfer, assign, convey, set over
and deliver unto Beneficiary all right, title and interest of Grantor in, to and
under all leases now or hereafter affecting the Property or any part thereof,
and all amendments, extensions and renewals of such leases and any of them
(which are hereinafter individually referred to as a “Lease” and collectively
referred to as the “Leases”), any and all security for the performance of the
lessee’s obligations under a Lease, including without limitation any and all
guaranties of lessee’s performance under any Lease, the immediate and continuing
right to collect and receive all rents, issues, income, profits and all other
amounts which may now or hereafter be or become due or owing under the Leases,
and any of them, or on account of the use of the Property, all security
deposits, damage deposits and other funds paid to Grantor by any lessee, and any
and all amounts received by Grantor in payment of damages (a) as a result of the
breach of any Lease by the lessee thereunder, or (b) for termination or
rejection of any Lease as a result of any proceeding under the Federal
Bankruptcy Code or any other federal, state or local statute which provides for
the possible termination or rejection of a Lease (all such items referred to in
this sentence are sometimes herein collectively referred to as the
“Rents”). Grantor will execute and deliver to Beneficiary such other
specific assignments of rents and leases applicable to the Property as
Beneficiary may from time to time request while this Deed of Trust and the
Indebtedness are outstanding.
The
assignment provided for herein is absolute and is effective
immediately. Notwithstanding the foregoing, until an Event of Default
has occurred hereunder, Grantor shall have a license to receive, collect and
enjoy the Rents. Upon the occurrence of an Event of Default
hereunder, such license shall automatically terminate, Grantor shall immediately
turn over to Beneficiary all such Rents which may then be in its possession or
under its control, and Beneficiary may, at its option, receive and collect all
Rents, as they become due. Beneficiary shall thereafter continue to
receive and collect all such Rents as long as such Event of Default shall exist,
and during the pendency of any foreclosure proceedings, and during any
redemption period. Grantor hereby irrevocably appoints Beneficiary
its true and lawful attorney or agent in fact, at the option of Beneficiary and
from time to time, to demand, receive and enforce payment, to give receipts,
releases and satisfactions and to xxx in the name of Grantor or Beneficiary for
or otherwise collect all Rents and apply the same as provided
herein. Such appointment shall be deemed to be coupled with an
interest and shall not be revocable by Grantor. Grantor hereby
expressly authorizes and directs lessees of any part of the Real Property to pay
to Beneficiary or such nominee as Beneficiary may designate in writing delivered
to and received by such lessees any and all Rents due Grantor pursuant to the
Leases. The lessees are expressly relieved of any and all duty,
liability or obligation to Grantor in respect of all payments so
made. Grantor hereby further authorizes and directs any property
manager of the Real Property to deliver to Beneficiary or such nominee as
Beneficiary may designate in writing delivered to and received by such property
manager any and all Rents in the possession or control of such property manager,
who is expressly relieved of any and all duty, liability or obligation to
Grantor in respect of all amounts so delivered.
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1.14 Security
Agreement. Grantor hereby grants to Beneficiary a security
interest in the Personal Property Collateral pursuant to the Texas Business and
Commerce Code (the “Code”) for the purpose of further securing the
Indebtedness. Grantor shall give advance notice in writing to
Beneficiary of any proposed change in Grantor’s name, identity, structure or
principal place of business, and will execute and deliver to Beneficiary, prior
to or concurrently with the occurrence of any such change, all financing
statements or amendments to financing statements that Beneficiary may require to
establish and maintain the validity and priority of Beneficiary’s security
interest with respect to any Personal Property Collateral described or referred
to herein. This Deed of Trust shall constitute a security agreement
with respect to, and Grantor hereby grants to Beneficiary a security interest
in, (a) any portion of the Personal Property Collateral which may not be deemed
to form part of the Real Property or may not constitute a fixture within the
meaning of the Code, (b) all property described on any financing statement
recorded or filed with respect to the security interest created hereunder,
whether or not described herein, and (c) all replacements of, substitutions for
and additions to such property and the proceeds thereof. In addition
to any other rights and remedies available to Beneficiary hereunder, Beneficiary
shall have all the rights and remedies of a secured party under the
Code. To the extent permitted by law, Grantor hereby authorizes
Beneficiary to sign and file financing statements at any time in respect of any
of the Personal Property Collateral, without such financing statements being
executed by or on behalf of Grantor, but Grantor will however, at any time upon
request of Beneficiary, execute, or cause to be executed, financing statements
in respect of any Collateral. Grantor agrees to pay all filing and
recording fees, including fees for filing and recording continuation statements
in connection with such financing statements, and to reimburse Beneficiary for
all costs and expenses of any kind incurred in connection therewith, including,
without limitation, attorneys’ fees.
This
Deed of Trust constitutes a financing statement (fixture
filing). Grantor is the record owner of the
Property. Information concerning the security interest created by
this Deed of Trust may be obtained from Beneficiary, as secured party, at the
address set forth on page 1 of this Deed of Trust. The address of
Grantor, as debtor, is set forth on page 1 of this Deed of Trust.
1.15 Representations and
Warranties of Grantor. Grantor hereby represents and warrants
to Beneficiary as follows:
(a) Grantor
has the requisite power and authority to (i) incur the Indebtedness; (ii) grant
this Deed of Trust; and (iii) enter into the Note, this Deed of Trust and all
other Loan Documents.
(b) This
Deed of Trust, the Note, and all other Loan Documents were executed and
delivered in accordance with the requirements of law and in accordance with any
requirements of the “Organizational Documents” (as hereinafter defined) of
Grantor. The term “Organizational Documents,” as used herein, shall
mean (i) with respect to a corporation, the articles of incorporation and
bylaws, and any amendments thereto, of such corporation, (ii) with respect to a
limited liability company, the articles of organization and the operating
agreement, and any amendments thereto, of such limited liability company, (iii)
with respect to a partnership, the partnership agreement, and any amendments
thereto, of such partnership, and (iv) with respect to a trust, the trust
agreement, and any amendments thereto, of such trust.
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(c) The
execution and delivery of this Deed of Trust, the Note, and all other
instruments executed and delivered to Beneficiary concurrently herewith, and the
full and complete performance of the provisions hereof and thereof (i) is
authorized by the Organizational Documents of Grantor, (ii) will not violate the
Organizational Documents of Grantor, and (iii) will not result in any breach of,
or constitute a default under, or result in the creation of any lien, charge or
encumbrance (other than those contained herein or in any instrument delivered to
Beneficiary concurrently herewith) upon any property or assets of Grantor or
under its Organizational Documents or any indenture, mortgage, deed of trust,
bank loan or credit agreement or other instrument to which Grantor is a party or
by which Grantor or its property or assets is bound.
ARTICLE
2
Default
2.1 Events of
Default. In addition to the occurrence of any other event
designated to be an Event of Default hereunder or under any other Loan Document,
any of the following events shall be an “Event of Default”
hereunder:
(a) Failure
to make any payment of interest under the Note when the
same is due and payable in accordance with the terms of the Note and following
the expiration of any grace period provided in the Note, or failure to pay the
unpaid principal balance on the Note when the same becomes due and payable in
accordance with the terms of the Note, whether at maturity or by acceleration,
or should Grantor default in any monetary performance required hereunder or in
the Deed of Trust;
(b) Failure
to make any payment of the Advance Fee (as defined in the Note);
(c) Failure
to perform any term, covenant, condition or agreement in the Note, this Deed of
Trust or any other Loan Documents (except those set forth in 2.1(a) above), and
the failure to cure such breach within the period of time required for cure
pursuant to the applicable Loan Document.
(d) Breach
by Grantor of any of the covenants, conditions or agreements contained in
Section 1.11 hereof.
(e) If
any representations or warranties given by or on behalf of Grantor to
Beneficiary in any Loan Document, including without limitation those
representations and warranties contained in this Deed of Trust shall prove to be
false or misleading in any material respect.
(f) The
issuance or levy of a writ of execution or attachment or any similar process
against all or any part of, or interest in, the Property if such execution,
attachment or similar process is not released, bonded, satisfied, vacated or
stayed within thirty (30) days after its issuance or levy.
2.2 Rights and
Remedies. If an Event of Default shall occur hereunder, under
the Note, or any other Loan Document, Beneficiary shall have all of the
following rights and remedies in addition to any other right, power or remedy
provided in the Loan Documents or at law or in equity:
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(a) Acceleration. With
or without further notice to declare all Indebtedness immediately due and
payable;
(b) Cure. With
or without further notice and without releasing Grantor from any obligation
hereunder, to cure any default of Grantor and in connection therewith to enter
upon the Property and to do such acts and things Beneficiary deems necessary or
appropriate, including without limitation: to appear in and defend
any action or proceeding purporting to affect the security hereof or the rights
or powers of Beneficiary hereunder; to pay, purchase, contest or compromise any
encumbrance, charge, lien or claim of lien which, in the judgment of
Beneficiary, is or may be prior or superior hereto, the judgment of Beneficiary
being conclusive as between the parties hereto; to pay any premiums or charges
with respect to insurance required to be carried hereunder; to complete
construction of any improvements being constructed upon the Property; and to
employ legal counsel, accountants, contractors and other appropriate persons to
assist them. No action taken by Beneficiary under this subparagraph
shall cure or waive any default or notice of default;
(c) Judicial
Foreclosures. To commence and maintain an action or actions in
any court of competent jurisdiction to foreclose this instrument as a mortgage
or for specific enforcement of the covenants of Grantor hereunder, and Grantor
agrees that such covenants shall be specifically enforceable by injunction or
any other appropriate equitable remedy;
(d) Entry and
Receiver. Whether or not proceedings to foreclose this Deed of
Trust have been commenced, Beneficiary shall be entitled ex parte without
notice, to the appointment of a receiver of the Property and all of the
earnings, revenues, rents, issues, profits and incomes thereof, with or without
further notice to Grantor and without regard to the adequacy of the security for
any indebtedness secured hereby. Beneficiary may, if permitted by
law, enter upon, possess, manage and operate the Property or any part thereof;
make, terminate, enforce or modify leases of the Property upon such terms and
conditions as Beneficiary deems proper; make repairs, alterations and
improvements to the Property and complete construction of any Improvements to be
constructed on the Property, for the purpose of protecting or enhancing the
security hereof. Grantor agrees to pay all expenses of action taken
under this subparagraph with interest thereon from the date of expenditure at
the Default Rate set forth in the Note, and payment thereof shall be secured
hereby. All sums realized by Beneficiary under this subparagraph,
less all costs and expenses incurred by it under this subparagraph, including
reasonable attorneys’ fees, and less such sum as Beneficiary deems appropriate
as a reserve to meet future expenses under this subparagraph, shall be applied
on any indebtedness secured hereby in such order as Beneficiary shall
determine. Neither the application of said sums to said indebtedness
nor any other action taken by Beneficiary under this subparagraph shall cure or
waive any default or notice of default hereunder or nullify the effect of any
such notice of default. Any action taken under this subparagraph may
be taken by Beneficiary or any employee or agent of Beneficiary, with or without
bringing any action or proceeding, or may be taken by a receiver appointed by a
court, and any such action may be taken without regard to the adequacy of the
security for the Indebtedness and whether or not the Indebtedness has been
declared immediately due and payable and whether or not notice of election and
demand has been filed;
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(e) Enforcement of Assignment of
Rents. In addition to the rights of Beneficiary under Section
1.3 hereof, prior or subsequent to taking possession of any portion of the
Property or taking any action with respect to such possession, Beneficiary may:
(1) collect and/or xxx for the Rents in Beneficiary's own name, give receipts
and releases therefor, and after deducting all expenses of collection, including
attorneys' fees and expenses, apply the net proceeds thereof to the Indebtedness
in such manner and order as Beneficiary may elect and/or to the operation and
management of the Property, including the payment of management, brokerage and
attorney's fees and expenses; and (2) require Grantor to transfer all
security deposits and records thereof to Beneficiary together with original
counterparts of the Leases.
(f) Power of
Sale. Upon the occurrence of a default, Trustee, or his
successor or substitute, is authorized and empowered and it shall be his special
duty at the request of Beneficiary to sell the Property or any part thereof
situated in the State of Texas, at the courthouse of any county (whether or not
the counties in which the Property is located are contiguous, if the Property is
located in more than one county) in the State of Texas in which any part of the
Property is situated, at public vendue to the highest bidder for cash between
the hours of ten o'clock a.m. and four o'clock p.m. on the first Tuesday in any
month or at such other place, time and date as provided by the statutes of the
State of Texas then in force governing sales of real estate under powers of sale
conferred by deed of trust, after having given notice of such sale in accordance
with such statutes. Any sale made by Trustee hereunder may be as an
entirety or in such parcels as Beneficiary may request. To the extent
permitted by applicable law, 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 shall not exhaust the power of sale herein granted, and Trustee is
specifically empowered to make successive sale or sales under such power until
the whole of the Property shall be sold; and, if the proceeds of such sale of
less than the whole of the Property shall be less than the aggregate of the
Indebtedness and the expense of executing this trust as provided herein, this
Deed of Trust and the lien hereof shall remain in full force and effect as to
the unsold portion of the Property just as though no sale had been made;
provided, however, that Grantor shall never have any right to require the sale
of less than the whole of the Property but Beneficiary shall have the right, at
its sole election, to request Trustee to sell less than the whole of the
Property. Trustee may, after any request or direction by Beneficiary,
sell not only the Real Property but also the Personal Property Collateral and
other interests which are a part of the Property, or any part thereof, 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. It shall not be necessary for
Trustee to have taken possession of any part of the Property or to have present
or to exhibit at any sale any of the Personal Property
Collateral. After each sale, Trustee shall make to the purchaser or
purchasers at such sale good and sufficient conveyances in the name of Grantor,
conveying the Property so sold to the purchaser or purchasers with general
warranty of title of Grantor, subject to any recorded liens, charges or
encumbrances (and to such leases and other matters, if any, as Trustee may elect
upon request of Beneficiary), and shall receive the proceeds of said sale or
sales and apply the same as herein provided. Payment of the purchase
price to the Trustee shall satisfy the obligation of purchaser at such sale
therefor, and such purchaser shall not be responsible for the application
thereof. The power of sale granted herein shall 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
Beneficiary may deem necessary until all of the Property has been duly sold and
all Indebtedness has been fully paid. In the event any sale hereunder
is not completed or is defective in the opinion of Beneficiary, such sale shall
not
10
exhaust
the power of sale hereunder and Beneficiary shall 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 or other conveyances given
by Trustee or any successor or substitute appointed hereunder as to nonpayment
of the Indebtedness or as to the occurrence of any default, or as to
Beneficiary's having declared all of said indebtedness to be due and payable, or
as to the request to sell, or as to notice of time, place and terms of sale and
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 trustee, or as to
the appointment of any substitute or successor trustee, or as to any other act
or thing having been duly done by Beneficiary or by such Trustee, substitute or
successor, shall be taken as prima facie evidence of the truth of the facts so
stated and recited. The Trustee or his successor or substitute may
appoint or delegate any one or more persons as agent to perform any act or acts
necessary or incident to any sale held by Trustee, including the posting of
notices and the conduct of sale, but in the name and on behalf of Trustee, his
successor or substitute. If Trustee or his successor or substitute
shall have given notice of sale hereunder, any successor or substitute Trustee
thereafter appointed may complete the sale and the conveyance of the Property
pursuant thereto as if such notice had been given by the successor or substitute
Trustee conducting the sale.
(g) Uniform Commercial
Code. Without limitation of Beneficiary's rights of
enforcement with respect to the Personal Property Collateral or any part thereof
in accordance with the procedures for foreclosure of real estate, Beneficiary
may exercise its rights of enforcement with respect to the Personal Property
Collateral or any part thereof under the Texas Business and Commerce Code as
amended (or under the Uniform Commercial Code in force in any other state to the
extent the same is applicable law) and in conjunction with, in addition to or in
substitution for those rights and remedies: (1) Beneficiary may enter
upon Grantor's premises to take possession of, assemble and collect the Personal
Property Collateral or, to the extent and for those items of the Personal
Property Collateral permitted under applicable law, to render it unusable; (2)
Beneficiary may require Grantor to assemble the Personal Property Collateral and
make it available at a place Beneficiary designates which is mutually convenient
to allow Beneficiary to take possession or dispose of the Personal Property
Collateral; (3) written notice mailed to Grantor as provided herein at least
five (5) days prior to the date of public sale of the Personal Property
Collateral or prior to the date after which private sale of the Personal
Property Collateral will be made shall constitute reasonable notice; (4) any
sale made pursuant to the provisions of this paragraph shall be deemed to have
been a public sale conducted in a commercially reasonable manner if held
contemporaneously with and upon the same notice as required for the sale of the
Property under power of sale as provided in paragraph (f) above in this Section
2.2; (5) in the event of a foreclosure sale, whether made by Trustee under the
terms hereof, or under judgment of a court, the Personal Property Collateral and
the other Property may, at the option of Beneficiary, be sold as a whole; (6) it
shall not be necessary that Beneficiary take possession of the Personal Property
Collateral or any part thereof prior to the time that any sale pursuant to the
provisions of this Section is conducted and it shall not be necessary that the
Personal Property Collateral or any part thereof be present at the location of
such sale; (7) with respect to application of proceeds from disposition of the
Personal Property Collateral under Section 5.2 hereof, the costs and expenses
incident to disposition shall include the reasonable expenses of retaking,
holding, preparing for sale or lease, selling, leasing and the like and the
reasonable attorneys' fees and legal expenses incurred by Beneficiary; (8) any
and all statements of fact or other recitals made in any xxxx of sale or
assignment or other instrument evidencing any foreclosure sale hereunder as to
nonpayment of the Indebtedness or as to the occurrence of any default, or as to
Beneficiary having declared all of such indebtedness to be due and payable, or
as to notice of time, place and terms of sale and of the properties to be sold
having been duly given, or as to any other act or thing having been duly done by
Beneficiary, shall be taken as prima facie evidence of the truth of the facts so
stated and recited; and (9) Beneficiary may appoint or delegate any one or more
persons as agent to perform any act or acts necessary or incident to any sale
held by Beneficiary, including the sending of notices and the conduct of the
sale, but in the name and on behalf of Beneficiary.
11
(h) Other
Security. To resort to and realize upon the security hereunder
and any other security now or hereafter held by Beneficiary to secure
performance of the Loan Documents in such order and manner as Beneficiary may,
in its sole discretion, determine; resort to any or all such security may be
taken concurrently or successively and in one or several consolidated or
independent judicial actions or lawfully taken non-judicial proceedings, or
both.
ARTICLE
3
Miscellaneous Terms and
Conditions
3.1 Marshaling of Assets;
Waiver. Grantor on its own behalf and on behalf of its
successors and assigns hereby expressly waives all rights to require a
marshaling of assets by Beneficiary.
3.2 Non
Waiver. Failure to accelerate the maturity of the Indebtedness
upon the occurrence of an Event of Default hereunder or acceptance of any sum or
performance of any obligation after the same is due or acceptance of any sum
less than the amount then due or failure to demand strict performance by Grantor
of the provisions of the Note, this Deed of Trust or any other Loan Document or
any forbearance by Beneficiary in exercising any right or remedy provided in
this Deed of Trust or in any other Loan Document or which Beneficiary may have
at law or in equity shall not constitute a waiver by Beneficiary of any
provision of the Note, this Deed of Trust or any other Loan Document nor nullify
the effect of any previous exercise of any such option to accelerate or other
right or remedy. No exercise of any right or remedy by Trustee or
Beneficiary hereunder shall constitute a waiver of any other right or remedy
contained herein or in any other Loan Document or provided at law or in
equity.
No
delay or omission of Trustee or Beneficiary in the exercise of any right, power
or remedy accruing hereunder or otherwise arising shall impair any such right,
power or remedy, or be construed to be a waiver of any Event of Default or
acquiescence therein.
3.3 Severability. If
any term of this Deed of Trust, or the application thereof to any person or
circumstances, shall, to any extent, be invalid or unenforceable, the remainder
of this Deed of Trust, or the application of such term to persons or
circumstances other than those as to which it is invalid or unenforceable, shall
not be affected thereby, and each term of this Deed of Trust shall be valid and
enforceable to the fullest extent permitted by law.
3.4 Successors in Interest and
Assigns. This Deed of Trust applies to, inures to the benefit
of, and is binding not only on the parties hereto, but on their heirs,
executors, administrators, successors and assigns. The term
“Beneficiary,” as used in this Deed of Trust, shall mean the holder and owner,
including pledgees, of the Note, whether or not named as Beneficiary
herein. The term “Grantor,” as used in this Deed of Trust, shall mean
and include all successors in interest and assigns of the original Grantor
herein. If Grantor consists of more than one party, all such parties
shall be jointly and severally liable for any and all obligations, covenants and
agreements of Grantor contained in the Note and the Loan Documents.
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3.5 Notices. All
notices to be given pursuant to this Deed of Trust shall be sufficient if (a)
personally delivered, (b) sent by facsimile, or (c) mailed postage prepaid, by
(i) United States certified or registered mail, return receipt requested, or
(ii) an overnight express mail service providing for the equivalent of a return
receipt to the sender, to the above described addresses of the parties hereto,
or to such other address as a party may request in a writing complying with the
provisions of this Section. Any time period provided in the giving of
any notice hereunder shall commence (x) upon receipt of such notice (if
personally delivered or sent by facsimile), (y) the next business day after the
date such notice is deposited in the mail (if mailed), or (z) the next business
day after the date such notice is given to the overnight express mail service
(if sent by overnight express mail service).
3.6 Governing
Law. This Deed of Trust shall be governed by and construed in
accordance with the laws of the State of Texas.
3.7 Nonrecourse. Notwithstanding anything
to the contrary contained in this Deed of Trust, the Note or any other Loan
Document, the directors, officers and shareholders of Grantor shall have no
personal liability for payment of the Indebtedness or for the payment of sums or
the performance of obligations required in this Deed of Trust, the Note or any
other Loan Document.
3.8 Usury. The
loan evidenced by the Note is being made solely for the purpose of carrying on
or acquiring a business or commercial enterprise. It is the intent of
Grantor and Beneficiary and all other parties to the Loan Documents to conform
to and contract in strict compliance with applicable usury law from time to time
in effect. All agreements between Beneficiary and Grantor (or any
other party liable with respect to any indebtedness under the Loan Documents)
are hereby limited by the provisions of this Section which shall override and
control all such agreements, whether now existing or hereafter
arising. In no way, nor in any event or contingency (including but
not limited to prepayment, default, demand for payment, or acceleration of the
maturity of any obligation), shall the interest taken, reserved, contracted for,
charged, chargeable, or received under this Deed of Trust, the Note or any other
Loan Document or otherwise, exceed the maximum nonusurious amount permitted by
applicable law (the "Maximum Amount"). If, from any possible
construction of any document, interest would otherwise be payable in excess of
the Maximum Amount, any such construction shall be subject to the provisions of
this Section and such document shall ipso facto be automatically reformed and
the interest payable shall be automatically reduced to the Maximum Amount,
without the necessity of execution of any amendment or new
document. If Beneficiary shall ever receive anything of value which
is characterized as interest under applicable law and which would apart from
this provision be in excess of the Maximum Amount, an amount equal to the amount
which would have been excessive interest shall, without penalty, be applied to
the reduction of the principal amount owing on the Indebtedness in the inverse
order of its maturity and not to the payment of interest, or refunded to Grantor
or the other payer thereof if and to the extent such amount which would have
been excessive exceeds such unpaid principal. The right to accelerate
maturity of the Note or any other Indebtedness does not include the right to
accelerate any interest which has not otherwise accrued on the date of such
acceleration, and Beneficiary does not intend to charge or receive any unearned
interest in the event of acceleration. All interest paid or agreed to
be paid to Beneficiary shall, to the extent permitted by applicable law, be
amortized, prorated, allocated and spread throughout the full stated term
(including any renewal or extension) of such indebtedness so that the amount of
interest on account of such indebtedness does not exceed the Maximum
Amount. As used in this Section, the term "applicable law" shall mean
the laws of the State of Texas or the federal laws of the United States
applicable to this transaction, whichever laws allow the greater interest, as
such laws now exist or may be changed or amended or come into effect in the
future.
13
3.9 Substitute
Trustee. The Trustee may resign by an instrument in writing
addressed to Beneficiary, or Trustee may be removed at any time with or without
cause by an instrument in writing executed by Beneficiary. In case of
the death, resignation, removal, or disqualification of Trustee, or if for any
reason Beneficiary 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 Beneficiary shall have the right and is hereby
authorized and empowered to appoint a successor trustee(s), or a substitute
trustee(s), without other formality than appointment and designation in writing
executed by Beneficiary and the authority hereby conferred shall extend to the
appointment of other successor and substitute trustees successively until the
Indebtedness has been paid in full, or until the Property is fully and finally
sold hereunder. If Beneficiary is a corporation or association and
such appointment is executed on its behalf by an officer of such corporation or
association, 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 corporation or
association. 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(s) and he shall thereupon succeed to, and shall
hold, possess and execute, all the rights, powers, privileges, immunities and
duties herein conferred upon Trustee. All references herein to
"Trustee" shall be deemed to refer to Trustee (including any successor(s) or
substitute(s) appointed and designated as herein provided) from time to time
acting hereunder.
3.10 No Liability of
Trustee. The 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 whatsoever (including Trustee's negligence),
except for Trustee's gross negligence or willful misconduct. The
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. Grantor 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. Grantor will reimburse Trustee for, and save him harmless
against, any and all liability and expenses which may be incurred by him in the
performance of his duties. The foregoing indemnity shall not
terminate upon discharge of the Indebtedness or foreclosure, or release or other
termination, of this Deed of Trust.
3.11 Releases. If
all of the Indebtedness be paid as the same becomes due and payable and all of
the covenants, warranties, undertakings and agreements made in this Deed of
Trust are kept and performed, and all obligations, if any, of Beneficiary for
further advances have been terminated, then, and in that event only, all rights
under this Deed of Trust shall terminate (except to the extent expressly
provided herein with respect to indemnifications, representations and warranties
and other rights which are to continue following the release hereof) and the
Property shall become wholly clear of the liens, security interests, conveyances
and assignments evidenced hereby, and such liens and security interests shall be
released by Beneficiary in due form at Grantor's cost. Without
limitation, all provisions herein for indemnity of Beneficiary or Trustee shall
survive discharge of the Indebtedness and any foreclosure, release or
termination of this Deed of Trust.
14
THE WRITTEN LOAN 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.
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remainder of this page is intentionally left blank.]
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IN
WITNESS WHEREOF, Grantor has executed this Deed of Trust, Assignment of Rents
and Leases, Security Agreement and Fixture Filing as of the date first above
written.
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GRANTOR:
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FSP
PHOENIX TOWER LIMITED PARTNERSHIP
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By:
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FSP
Phoenix Tower LLC, its general partner
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By:
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/s/ Xxxxxx
X. Xxxxxx
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Xxxxxx
X. Xxxxxx
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President
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COMMONWEALTH
OF MASSACHUSETTS
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:
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:
ss
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COUNTY
OF MIDDLESEX
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:
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On
this 3rd day of December, 2008, before me, the undersigned notary public,
personally appeared Xxxxxx X. Xxxxxx, President of FSP Phoenix Tower LLC, a
Delaware limited liability company, which is the general partner of FSP Phoenix
Tower Limited Partnership, a Texas limited partnership, proved to me through
satisfactory evidence of identification, which was personal knowledge of
identity, to be the person whose name is signed on the preceding or attached
document, and acknowledged to me that he signed it voluntarily, as the act and
deed of said entity for its stated purpose.
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/s/
Xxxx X. XxXxxxx
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Official
Signature and Seal of Notary Public
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16
EXHIBIT
A
TRACT I:
Description
of a 2.1840 acre (95,134 square feet) tract of land being the same 2.1840
acre tract described in a deed to Phoenix Tower, L.P., a Texas limited
partnership as recorded under Xxxxxx County Clerk’s File No. V029748, situated
in the X. X. Xxxxxxxx Survey, Abstract No. 61, in the City of Houston, Xxxxxx
County, Texas, said 2.1840 acre tract of land being more particularly described
by metes and bounds as follows (with bearings being referenced to the
aforementioned 2.1840 acre tract recorded under Xxxxxx County clerk’s File No.
V029748);
BEGINNING
at a 60d nail found in the northerly right-of-way line of U. S. Highway 59
(Southwest Freeway, 360 feet wide) at the southeast corner of Block
1, Reserve “A” of GREENWAY PLAZA as recorded in Film Code No. 421110 of the
Xxxxxx County Map Records, said point also being in the Southwest corner of the
herein described tract, from which a found 60d nail bears South 45º 00’ East, a
distance of 0.05 foot;
THENCE,
North 12º 18’ 43” West, along the easterly line of said GREENWAY PLAZA, a
distance of 370.00 feet to an “X” cut in concrete found in a southerly line of
said GREENWAY PLAZA, for the northwest corner of this herein described tract,
from which a found brass disk bears North 45º 00’ West, a distance of 0.12
foot;
THENCE,
North 77º 41’ 17” East, along a southerly line of said GREENWAY PLAZA, a
distance of 256.35 feet to a brass disk found for the northeast corner of this
herein described tract in the westerly right-of-way line of Buffalo Speedway
(107 feet wide) said point also being the arc of a curve to the
right;
THENCE,
Southeasterly, along the westerly right-of-way line of said Buffalo Speedway and
along the arc of said curve to the right having a radius of 5,672.65 feet, a
central angle of 03º 18’ 11”, a chord bearing South 12º 55’ 12” East, a distance
of 326.99 feet) an arc distance of 327.04 feet to an “X” cut in
concrete found marking the most northerly northwest cut back corner at the
intersection of the westerly right-of-way line of said Buffalo Speedway and the
northerly right-of-way line of the aforesaid U. S. Highway 59;
THENCE,
South 33º 17’ 52” West, along said cut back line, a distance of 61.50 feet to a
5/8-inch iron rod found for the most southerly southwest corner of this herein
described tract in the northerly right-of-way line of said X.X. Xxxxxxx
00;
THENCE,
South 77º 41’ 10” West, along the northerly right-of-way line of said U. S.
Highway 59, a distance of 215.87 feet to the POINT OF BEGINNING and containing a
computed area of 2.1840 acres (95,134 square feet) of land.
17
TRACT II (LEASEHOLD
TRACT):
Leasehold
Estate created by that certain Ground Lease dated May 1, 1984 by and between
Greenway Plaza, Ltd. as Lessor and Greenway Building Joint Venture, as Lessee,
as disclosed by instruments filed under H.C.C.F. Nos. K347663, R724673, R906155
and V029750 covering the following tract of land:
Description
of 1,995 square feet (0.0458 acres) of land located in the X. X. Xxxxxxxx
Survey, Abstract 61, Xxxxxx County, Texas being more fully described by metes
and bounds as follows with bearings referenced to the Texas State Plane
Coordinate System, South Central Zone;
BEGINNING
at a found 60d nail in the northerly right-of-way line of U. S. Highway 59
(Southwest Freeway, 360 foot wide) said point being the southwest corner of a
66,983 square foot tract, as described in Volume 6327, Page 156, of the Xxxxxx
County Deed Records and the Southeast corner of the herein described tract, from
which a found 60d nail bears South 45º 00’ East, a distance of 0.05
foot;
THENCE,
South 77º 41’ 17” West, along the northerly right-of-way line of said U. S.
Highway 59, a distance of 13.30 feet to a 5/8-inch iron rod set for the
southwest corner of this herein described tract;
THENCE,
North 12º 18’43” West, a distance of 150.00 feet to a pk nail set in a expansion
joint for the northwest corner of this herein described tract;
THENCE,
North 77º 41’ 17” East, a distance of 13.30 feet to an “X” set in concrete for
the northeast corner of this herein described tract in the West line of the
aforesaid 66,983 square foot tract;
THENCE,
South 12º 18’ 43” East, along the easterly line of this tract and the westerly
line of said 66,983 square foot tract, a distance of 150.00 feet to the POINT OF
BEGINNING and containing a computed area of 0.0458Acre tract (1,995 square feet)
of land.
TRACT III
(EASEMENT ESTATE):
Being
a non-exclusive access easement as shown and depicted on the Subdivision Map of
the “Partial Replat of Greenway Plaza Section One” a subdivision of record in
Volume 180, Page 1 of the Xxxxxx County Map Records, and also referenced under
County Clerk’s File No’s. C289523, H767557, H767558, H767559, H767560, H767561
and J759802 of Xxxxxx County, Texas
18
