Exhibit
10.54


 


DEED OF TRUST


 


STATE OF TEXAS


 


COUNTY OF COLLIN


 


Terms


 


Date:  Effective as of October
9th, 2002


 


Grantor:  Dallas S&W, L.P.,


a Texas limited partnership


 


Grantor’s Mailing Address:


1114 First Avenue


New York, New York  10021


Attn:  Jim
Dunn


Telephone No.:  (212) 838-2061


Facsimile No.:  (212) 758-6027


 


Trustee:


Bryan Perkins


 


Trustee’s Mailing Address:


8080 N. Central Expressway


Suite 1300


Dallas, Texas  75206


 


Lender:  Toll Road Texas Land Company, L.P.


 


Lender’s Mailing Address:


Toll Road Texas Land Company, L.P.


 c/o
Calvin C. Chandler, Manager of


Tollway Land Company, L.L.C., the general partner
of Lender


10013 – 59th Street


Lakewood, Washington 98499


Telephone No.:  (253) 588-1788


Facsimile No.:   
(253) 584-8563


 


Note:


 


Date:  October
9, 2002


Original principal amount:  $1,650,000


Maker:  Dallas
S&W, L.P.


Lender:  Toll
Road Texas Land Company, L.P.


 

















 


Maturity date: 
October 9, 2005


 


Property (including any improvements):


See Exhibit “A” attached hereto


 


Prior Lien: None


 


Other Exceptions to Conveyance and Warranty:  Exceptions set forth on Exhibit “B” attached hereto.


 


For value received and to secure payment of the Note, Grantor conveys
the Property to Trustee in trust. Grantor warrants and agrees to defend the
title to the Property, subject to the Other Exceptions to Conveyance and
Warranty. On payment of the Note and all other amounts secured by this deed of
trust, this deed of trust will have no further effect, and Lender will release
it at Grantor’s expense.


 


Clauses
and Covenants


 


A.                                    Grantor’s
Obligations


 


Grantor agrees to:


 


1.                                       keep
the Property in good repair and condition;


 


2.                                       pay
all taxes and assessments on the Property before delinquency;


 


3.                                       defend
title to the Property subject to the Other Exceptions to Conveyance and Warranty
and preserve the lien’s priority as it is established in this deed of trust;


 


4.                                       maintain,
in a form acceptable to Lender, an insurance policy that:


 


a.                                       covers
all improvements for their full insurable value as determined when the policy
is issued and renewed, unless Lender approves a smaller amount in writing;


 


b.                                      contains
an 80 percent coinsurance clause;


 


c.                                       provides
fire and extended coverage, including windstorm coverage;


 


d.                                      protects
Lender with a standard mortgage clause;


 


e.                                       provides
flood insurance at any time the Property is in a flood hazard area; and


 


f.                                         contains
such other coverage as Lender may reasonably require;


 


5.                                       comply
at all times with the requirements of the 80 percent coinsurance clause;


 


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6.                                       deliver
the insurance policy to Lender within ten days of the date of this deed of
trust and deliver renewals to Lender at least fifteen days before expiration;


 


7.                                       obey
all laws, ordinances, and restrictive covenants applicable to the Property;


 


8.                                       keep
any buildings occupied as required by the insurance policy; and


 


9.                                       if
the lien of this deed of trust is not a first lien, pay or cause to be paid all
prior lien notes and abide by or cause to be abided by all prior lien
instruments.


 


10.                                 furnish
on Lender’s request evidence satisfactory to Lender that all taxes and
assessments on the Property have been paid when due.


 


B.                                    Lender’s
Rights


 


1.                                       Lender
may appoint in writing a substitute trustee, succeeding to all rights and
responsibilities of Trustee.


 


2.                                       If
the proceeds of the Note are used to pay any debt secured by prior liens,
Lender is subrogated to all the rights and liens of the holders of any debt so
paid.


 


3.                                       In the event of any insured damage to or destruction of the Property or
any part thereof (herein called an “Insured Casualty”), if (A) less than
56% of the improvements are destroyed or damaged, and (B) in the
reasonable judgment of Lender, the Property can be restored within twelve (12)
months after insurance proceeds are made available to an economic unit not less
valuable and not less useful than the same was prior to the Insured Casualty,
and after such restoration will adequately secure the outstanding balance of
the Note, and (C) no event of default shall have occurred and be then
continuing, then the proceeds of insurance shall be applied to reimburse
Grantor for the cost of restoring, repairing, replacing or rebuilding the
Property or part thereof subject to the Insured Casualty, and Grantor hereby
covenants and agrees forthwith to commence and diligently to prosecute such
restoring, repairing, replacing or rebuilding; provided, however, in any event
Grantor shall pay all costs of such restoring, repairing, replacing or
rebuilding in excess of the net proceeds of insurance made available pursuant
to the terms hereof.  If the insurance
proceeds are not so applied to restoring repairing, replacing or rebuilding the
Property, they shall be applied against the Note.


 


4.                                       Notwithstanding
note terms to the contrary, and unless applicable law prohibits, all payments
received by Lender from Grantor under the Note or this deed of trust may, at
Lender’s discretion, be applied first to amounts payable under this deed of
trust and then to amounts due and payable to Lender under the Note, to be
applied to late charges, principal, or interest in the order Lender in its
discretion determines.


 


5.                                       If
Grantor fails to perform any of Grantor’s obligations, Lender may perform those
obligations and be reimbursed by Grantor on demand for any amounts so paid,
including attorney’s


 


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fees, plus interest on those amounts from the dates of payment at the
rate stated in the Note for matured, unpaid amounts. The amount to be
reimbursed will be secured by this deed of trust.


 


6.                                       Grantor
shall be in default upon either of the following:


 


a.                                       Failure
to pay any installment of interest or principal due and owing under the Note,
when due, and failure of Grantor to cure said default within 10 (ten) days of
notice of such default from Lender to Grantor;


 


b.                                      Failure
by Grantor to pay any monetary amount required by this Deed of Trust, and the
continuation of such failure for a period of twenty (20) days after Lender has
provided Grantor with written notice thereof; or


 


c.                                       Failure
by Grantor to perform any term, condition, or covenant contained in this Deed
of Trust (other than failure to pay any monetary amount required by this Deed
of Trust), and the continuation of such failure for a period of thirty (30)
days after Lender has provided Grantor with written notice thereof or, if such
failure on the part of is not susceptible of being cured within said thirty
(30) day period, the failure of Grantor to commence curing such failure within
said thirty (30) day period or, having commenced to cure the failure within
said thirty (30) day period, the failure of Grantor to prosecute or complete
the curing of said failure with due diligence and dispatch.


 


If there is a default Lender may:


 


a.                                       declare
the unpaid principal balance and earned interest on the Note immediately due;


 


b.                                      direct
Trustee to foreclose this lien, in which case Lender or Lender’s agent will
cause notice of the foreclosure sale to be given as provided by the Texas
Property Code as then in effect; and


 


c.                                       purchase
the Property at any foreclosure sale by offering the highest bid and then have
the bid credited on the Note.


 


7.                                       Lender
may remedy any default without waiving it and may waive any default without
waiving any prior or subsequent default.


 


8.                                       Lender
may declare the debt secured by this deed of trust immediately payable and
invoke any remedies provided in this deed of trust for default if Grantor
transfers any of the Property to a person who is not a “permitted transferee”
without Lender’s consent.  “Permitted
transferee” means any other person controlling, controlled by, or under common
control with Grantor.


 


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C.                                    Trustee’s
Rights and Duties


 


If directed by Lender to foreclose this lien, Trustee
will:


 


1.                                       either
personally or by agent give notice of the foreclosure sale as required by the
Texas Property Code as then in effect;


 


2.                                       sell
and convey all or part of the Property “AS IS” to the highest bidder for cash
with a general warranty binding Grantor, subject to the Prior Lien and to the
Other Exceptions to Conveyance and 


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Warranty and without representation or warranty,
express or implied, by Trustee;


 


3.                                       from
the proceeds of the sale, pay, in this order:


 


a.                                       expenses
of foreclosure, including a reasonable commission to Trustee;


 


b.                                      to
Lender, the full amount of principal, interest, attorney’s fees, and other
charges due and unpaid;


 


c.                                       any
amounts required by law to be paid before payment to Grantor; and


 


d.                                      to
Grantor, any balance; and


 


4.                                       be
indemnified by Lender against all costs, expenses, and liabilities incurred by
Trustee for acting in the execution or enforcement of the trust created by this
deed of trust, which includes all court and other costs, including attorney’s
fees, incurred by Trustee in defense of any action or proceeding taken against
Trustee in that capacity.


 


D.                                    General
Provisions


 


1.                                       If
any of the Property is sold under this deed of trust, Grantor must immediately
surrender possession to the purchaser. If Grantor fails to do so, Grantor will
become a tenant at sufferance of the purchaser, subject to an action for
forcible detainer.


 


2.                                       Recitals
in any trustee’s deed conveying the Property will be presumed to be true.


 


3.                                       Proceeding
under this deed of trust, filing suit for foreclosure, or pursuing any other
remedy will not constitute an election of remedies.


 


4.                                       This
lien will remain superior to liens later created even if the time of payment of
all or part of the Note is extended or part of the Property is released.


 


5.                                       If
any portion of the Note cannot be lawfully secured by this deed of trust,
payments will be applied first to discharge that portion.


 


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6.                                       Grantor
assigns to Lender all amounts payable to or received by Grantor from
condemnation of all or part of the Property, from private sale in lieu of
condemnation, and from damages caused by public works or construction on or
near the Property. After deducting any expenses incurred, including attorney’s
fees and court and other costs, Lender will either release any remaining
amounts to Grantor or apply such amounts to reduce the Note. Lender will not be
liable for failure to collect or to exercise diligence in collecting any such
amounts. Grantor will immediately give Lender notice of any actual or
threatened proceedings for condemnation of all or part of the Property.


 


7.                                       Grantor
assigns to Lender absolutely, not only as collateral, all present and future
rent and other income and receipts from the Property. Grantor warrants the
validity and enforceability of the assignment. Grantor may as Lender’s licensee
collect rent and other income and receipts as long as Grantor is not in default
under the Note or this deed of trust. Grantor will apply all rent and other
income and receipts to payment of the Note and performance of this deed of
trust, but if the rent and other income and receipts exceed the amount due
under the Note and deed of trust, Grantor may retain the excess. If Grantor
defaults in payment of the Note or performance of this deed of trust, Lender
may terminate Grantor’s license to collect rent and other income and then as
Grantor’s agent may rent the Property and collect all rent and other income and
receipts. Lender neither has nor assumes any obligations as lessor or landlord
with respect to any occupant of the Property. Lender may exercise Lender’s
rights and remedies under this paragraph without taking possession of the
Property. Lender will apply all rent and other income and receipts collected
under this paragraph first to expenses incurred in exercising Lender’s rights
and remedies and then to Grantor’s obligations under the Note and this deed of
trust in the order determined by Lender. Lender is not required to act under
this paragraph, and acting under this paragraph does not waive any of Lender’s
other rights or remedies. If Grantor becomes a voluntary or involuntary debtor
in bankruptcy, Lender’s filing a proof of claim in bankruptcy will be deemed
equivalent to the appointment of a receiver under Texas law.


 


8.                                       Interest
on the debt secured by this deed of trust will not exceed the maximum amount of
nonusurious interest that may be contracted for, taken, reserved, charged, or
received under law. Any interest in excess of that maximum amount will be
credited on the principal of the debt or, if that has been paid, refunded. On
any acceleration or required or permitted prepayment, any such excess will be
canceled automatically as of the acceleration or prepayment or, if already paid,
credited on the principal of the debt or, if the principal of the debt has been
paid, refunded. This provision overrides any conflicting provisions in this and
all other instruments concerning the debt.


 


9.                                       The
debt evidenced by the Note is in payment of the purchase price of the Property;
the debt is secured both by this deed of trust and by a vendor’s lien on the
Property, which is expressly retained in a deed to Grantor of even date given
by Lender to Grantor. This deed of trust does not waive the vendor’s lien, and
the two liens and the rights created by this deed of trust are cumulative.
Lender may elect to foreclose under either of the liens without waiving the
other or may foreclose under both.


 


10.                                 In
no event may this deed of trust secure payment of any debt that may not
lawfully be


 


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secured by a lien on real estate or create a lien otherwise prohibited
by law.


 


11.                                 When
the context requires, singular nouns and pronouns include the plural.


 


12.                                 The
term Note
includes all extensions and renewals of the Note and all amounts secured by
this deed of trust.


 


13.                                 This
deed of trust binds, benefits, and may be enforced by the successors in
interest of all parties.


 


14.                                 If
Grantor and Maker are not the same person, the term Maker includes Grantor.


 


15.                                 Grantor
and each surety, endorser, and guarantor of the Note waive all demand for
payment, presentation for payment, notice of intention to accelerate maturity,
notice of acceleration of maturity, protest, and notice of protest, to the
extent permitted by law.


 


16.                                 Grantor
agrees to pay reasonable attorney’s fees, trustee’s fees, and court and other
costs of enforcing Lender’s rights under this deed of trust if this deed of
trust is placed in the hands of an attorney for enforcement.


 


17.                                 If
any provision of this deed of trust is determined to be invalid or
unenforceable, the validity or enforceability of any other provision will not
be affected.


 


18.                                 Grantor
represents that this deed of trust and the Note are given for the following
purposes:  to finance Grantor’s purchase
of the Property from Lender.


 


 


	
   

  	
  DALLAS S&W, L.P., a Texas limited partnership

  
	
   

  	
   

  
	
   

  	
  By:  S&W of Dallas LLC, a Delaware limited liability

  company, its General Partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ James M. Dunn

  	
   

  
	
   

  	
  Name:

  	
  James M. Dunn

  	
   

  
	
   

  	
  Its:

  	
  President

  	
   

  
						



 


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ACKNOWLEDGEMENT


 


	
  STATE OF NEW YORK

  	
  §

  	
   

  
	
   

  	
  §

  	
   

  
	
  COUNTY
  OF                          

  	
  §

  	
   

  



 


Before me Paul Vigliarolo, notary public, on this day
personally appeared James M. Dunn, the President of S&W of Dallas LLC, a
Delaware limited liability company, in its capacity as the general partner of
Dallas S&W, L.P., a Texas limited partnership, known to me to be the person
whose name is subscribed to the foregoing instrument and acknowledged to me
that he executed the same for the purposes and consideration therein expressed
on behalf of said company and limited partnership.


 


Given under my hand and the seal of office this 4th
day of October 2002.


 


 


/s/ Paul Vigliarolo


Notary Public, State of
New York


 


AFTER RECORDING RETURN TO:


Mr. Timothy Bunch


Toll Road Texas Land Company, L.P.


10013 – 59th Street


Lakewood, Washington 98499


 


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EXHIBIT
A


 


Legal
Description


 


 


Lot 8, Block C/8763, of Greenway Addition, an addition to the City of
Dallas, Texas, according to the Map thereof recorded in Volume J, Page 599, of
the Map Records of Collin County, Texas, more particularly described on Exhibit
A-1 attached hereto.


 


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EXHIBIT
A-1


 


Metes
and Bounds Legal Description


 


BEING that certain lot, tract or parcel of land situated in the
McGimp-Bays  Survey, Abstract No. 65,
Collin County, Texas and being all Lot 8, Block C/8763 of the GREENWAY
ADDITION, an addition to the City of Dallas, according to the plat thereof
recorded in Cabinet “J”, Page 599 of the Map Records of Collin County, Texas
and being more particularly described as follows:


 


BEGINNING at a 1/2 inch iron rod found at a corner clip at the
intersection of the northerly right-of-way of Old Bent Tree Lane (a 56 foot
right-of-way) and the easterly right-of-way of Dallas Parkway (a variable width
right-of-way);


 


THENCE along the easterly right-of-way of said Dallas Parkway, North 45
deg. 11 min. 20 sec. West, a distance of 22.72 feet to a 1/2 inch iron rod
found for corner at the southwest corner of Lot 7 of said GREENWAY ADDITION and
a common corner of said Lot 8;


 


THENCE departing the easterly right-of-way of said Dallas Parkway,
North 88 deg. 49 min. 38 sec. East, a distance of 48.51 feet to a 1/2 inch iron
rod found for corner at the southeast corner of said Lot 7 and a common corner
said Lot 8;


 


THENCE North 01 deg. 17 min. 24 sec. East, a distance of 20.02 feet to
a 1/2 inch iron rod found for corner at the northeast corner of said Lot 7 and
a common corner of said Lot 8;


 


THENCE South 88 deg. 49 min. 38 sec. West, a distance of 50.65 feet to
a 1/2 inch iron rod found for corner at the northwest corner of said Lot 7 and
a common corner of said Lot 8, same being in the easterly right-of-way of
aforesaid Dallas Parkway, and being at the beginning of a non-tangent curve to
the right;


 


THENCE along the easterly right-of-way of said Dallas Parkway, 249.28
feet along the arc of said non-tangent curve to the right, said curve having a
radius of 4,768.42 feet, a delta angle of 02 deg. 59 min. 43 sec., and a chord
which bears North 02 deg. 01 min. 45 sec. East, a distance of 249.25 feet to a
1/2” iron rod found for corner at the northwest corner of said Lot 8, and being
at the southwest corner of Lot 9 of said GREENWAY ADDITION;


 


THENCE departing the easterly right-of-way said Dallas Parkway, North
89 deg. 21 min. 12 sec. East, at a distance of 359.61 feet passing the west
line of a  28 foot Access & Utility
Easement of record in Volume 1705, Page 919, Volume 1657, Page 148 and Volume
1716, Page 326 of the Deed Records of Collin County,  Texas (D.R.C.C.T.) and continuing on a total distance of 387.61
feet to a survey marker nail set for corner in the easterly line of said Access
& Utility Easement, same being at the southeast corner of said Lot 9 and
the northeast  corner of said Lot 8, and
being in the centerline of a private 56 foot drive (Parkway Lane) ;


 


THENCE along the centerline of said Parkway Lane and the easterly line
of a said 28 foot Access &


 


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Utility Easement, South 00 deg. 22 min. 07 sec. East, a distance 285.55
feet to a P.K. nail found for corner at the southeast corner of said Lot 8,
same being at the intersection of said centerline, with the northerly
right-of-way of aforesaid Old Bent Tree Lane;


 


THENCE along the northerly right-of-way line of said Old Bent Tree
Lane, South  89 deg. 24 min. 43 sec.
West, a distance of 380.46 feet to the POINT OF  BEGINNING and CONTAINING 111,388 SQUARE FEET or 2.5571 ACRES OF
LAND, more or less.


 


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EXHIBIT
“B”


 


Permitted
Exceptions


 


1.               Restrictive
covenants recorded in Volume 1493, Page 536, Land Records of Collin County,
Texas.


 


2.               Easement to the
City of Dallas, dated 09/29/1982, filed 05/20/1983, recorded in Volume 1657,
Page 148, Land Records of Collin County, Texas.  And as shown on plat recorded in Volume J, Page 599, Map Records,
Collin County, Texas.


 


3.               Easement to the
City of Dallas, dated 09/29/1982, filed 08/18/1983, recorded in Volume 1716,
Page 326, Land Records of Collin County, Texas.  And as shown on plat recorded in Volume J, Page 599, Map Records,
Collin County, Texas.


 


4.               15’ sanitary sewer
easement as shown on the plat recorded in Volume J, Page 599, Map Records of
Collin County, Texas.


 


5.               Easement to Oncor
Electric Delivery Company, dated 03/21/2002, filed 05/17/2002, recorded in
Volume 5171, Page 3450, Land Records of Collin County, Texas.


 


6.               Undivided 1/2
interest in oil, gas and other minerals, without the right of surface entry,
described in instrument filed 01/16/1980, recorded in Volume 1225, Page 612,
Land Records of Collin County, Texas.


 


7.               Easement Agreement
dated 08/02/1983 among Jerry Stone, Jr., Aron B. Vatz and Parkway Lane
Condominium Homeowners Association, Inc. filed 08/04/1983, recorded in Volume
1705, Page 919, Land Records, Collin County, Texas and as shown on plat
recorded in Volume J, Page 599, Land Records, Collin County, Texas.


 


8.               Easement Agreement,
dated 10/01/1996, between Greenway-Tollway, L.P. and John Q. Hammons, Trustee,
filed 10/03/1996, under cc# 96-0086066, Land Records, Collin County, Texas.


 


9.               Platting Agreement,
dated 10/01/1996, between Greenway-Tollway, L.P. and John Q. Hammons, Trustee,
filed 10/03/1996, under cc# 96-0086065, Land Records, Collin County, Texas.


 


10.         Standby fees, taxes and
assessments by any taxing authority for the year 2002, and subsequent years.


 


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