Exhibit 10.64
Loan No. 3212525
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ASSIGNMENT OF LEASES AND RENTS
BIRCH POND REALTY CORPORATION
(Assignor)
TO
XXXX XXXXXXX REAL ESTATE FINANCE, INC.
(Assignee)
Dated: As of March 1, 1999
LOCATION OF PROPERTY:
000 Xxxxx Xxxx Xxxxx
Xxxxxx, Xxxxxxx Xxxxxx, Xxx Xxxxxxxxx
RECORD AND RETURN TO:
Xxxx & Xxxxxx
A Professional Corporation
Xxx Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxx X. X'Xxxxxxxx, Esq.
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Loan No. 3212525
THIS ASSIGNMENT OF LEASES AND RENTS (this "ASSIGNMENT") made as of
March 1, 1999, by BIRCH POND REALTY CORPORATION, a Delaware corporation (doing
business in the State of New Hampshire as BPRC), having its principal place of
business at 000 Xxxxx Xxxx Xxxxx, Xxxxxx, Xxx Xxxxxxxxx 00000 ("ASSIGNOR") to
XXXX XXXXXXX REAL ESTATE FINANCE, INC., a Delaware corporation, having its
principal place of business at Xxxx Xxxxxxx Xxxxx, X-00, 000 Xxxxxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000 ("ASSIGNEE").
W I T N E S S E T H:
THAT Assignor for good and valuable consideration, receipt whereof is
hereby acknowledged, hereby grants, transfers and absolutely and unconditionally
assigns to Assignee the entire lessor's interest in and to all current and
future leases and other agreements affecting the use, enjoyment or occupancy of
all or any part of that certain lot or piece of land, more particularly
described in EXHIBIT A hereto, together with the buildings, structures,
fixtures, additions, enlargements, extensions, modifications, repairs,
replacements and improvements now or hereafter located thereon (hereinafter
collectively referred to as the "MORTGAGED PROPERTY") (including any use or
occupancy arrangements created pursuant to Section 365(h) of Title 11 of the
United States Code (the "BANKRUPTCY CODE") or otherwise in connection with the
commencement or continuance of any bankruptcy, reorganization, arrangement,
insolvency, dissolution, receivership or similar proceedings, or any assignment
for the benefit of creditors in respect of any tenant or occupant of any portion
of the Mortgaged Property), together with any extension or renewal of the same;
The leases and other agreements described above together with all other
present and future leases and present and future agreements and any extension or
renewal of the same are hereinafter collectively referred to as the "LEASES";
TOGETHER WITH all income, rents, issues, revenues and profits arising
from the Leases and renewals thereof and together with all income, rents, issues
and profits, revenues and proceeds (including, but not limited to, all oil and
gas or other mineral royalties and bonuses) from the use, enjoyment and
occupancy of the Mortgaged Property (including any payments received pursuant to
Section 502(b) of the Bankruptcy Code or otherwise in connection with the
commencement or continuance of any bankruptcy, reorganization, arrangement,
insolvency, dissolution, receivership or similar proceedings, or any assignment
for the benefit of creditors, in respect of any tenant or occupant of any
portion of the Mortgaged Property and all claims as a creditor in connection
with any of the foregoing) (hereinafter collectively referred to as the "RENTS")
and all proceeds from the sale, cancellation, surrender or other disposition of
the Leases and the right to receive and apply the Rents to the payment of the
Loan (as hereinafter defined).
THIS ASSIGNMENT is made in consideration of that certain loan (the
"LOAN") made by Assignee to Assignor evidenced by that certain mortgage note
made by Assignor to Assignee, dated the date hereof, in the principal sum of
$12,000,000.00 (the "NOTE") and secured by that certain mortgage, assignment of
leases and rents and security agreement given by Assignor to Assignee, dated the
date hereof, in the principal sum of $12,000,000.00, covering the Mortgaged
Property (the "MORTGAGE").
This Assignment, the Note, the Mortgage and other documents now or
hereafter executed by Assignor and/or others and by or in favor of Assignee
which evidence, secure, guarantee or are executed in connection with the Loan
shall be hereinafter referred to as the "LOAN DOCUMENTS".
Loan No. 3212525
ASSIGNOR WARRANTS that (i) Assignor is the sole owner of the entire
lessor's interest in the Leases; (ii) that the rent roll or occupancy schedule
attached as an exhibit to the application, in connection with the Loan, given by
Assignor to Assignee (the "RENT ROLL") is a true, accurate and complete list of
all Leases or options to lease now in effect at the Mortgaged Property; (iii)
the Leases are valid and enforceable and have not been altered, modified or
amended in any manner whatsoever except as herein set forth; (iv) none of the
Rents reserved in the Leases have been assigned or otherwise pledged or
hypothecated; (v) none of the Rents have been collected for more than one (1)
month in advance; (vi) Assignor has full power and authority to execute and
deliver this Assignment and the execution and delivery of this Assignment has
been duly authorized and does not conflict with or constitute a default under
any law, judicial order or other agreement affecting Assignor or the Mortgaged
Property; (vii) the premises demised under the Leases have been completed and
the tenants under the Leases have accepted the same and have taken possession of
the same on a rent-paying basis; and (viii) there exist no offsets or defenses
to the payment of any portion of the Rents.
ASSIGNOR COVENANTS with Assignee that Assignor shall not, without the
prior written consent of Assignee, (a) lease all or any part of the Mortgaged
Property, (b) alter or change the terms of any Lease or cancel or terminate,
abridge or otherwise modify the terms of any Lease, (c) consent to any
assignment of or subletting under any Lease not in accordance with its terms,
(d) cancel, terminate, abridge or otherwise modify any guaranty of any Lease or
the terms thereof, (e) collect or accept prepayments of installments of Rents
for a period of more than one (1) month in advance or (f) further assign the
whole or any part of the Leases or the Rents.
ASSIGNOR FURTHER COVENANTS with Assignee that, with respect to each
Lease, Assignor shall (a) observe and perform each and every provision thereof
on the lessor's part to be fulfilled or performed under each Lease and not do or
permit to be done anything to impair the value of the Lease as security for the
Loan, (b) promptly send to Assignee copies of all notices of default which
Assignor shall send or receive thereunder, (c) enforce all of the terms,
covenants and conditions contained in such Lease upon the lessee's part to be
performed, short of termination thereof, (d) execute and deliver, at the request
of Assignee, all such further assurances, confirmations and assignments in
connection with the Mortgaged Property as Assignee shall, from time to time,
require and (e) upon request, furnish Assignee with executed copies of all
Leases.
THIS ASSIGNMENT is made on the following terms, covenants and
conditions:
1. PRESENT ASSIGNMENT. Assignor does hereby absolutely and
unconditionally assign to Assignee Assignor's right, title and interest in all
current and future Leases and Rents, it being intended by Assignor that this
assignment constitutes a present, absolute and unconditional assignment and not
an assignment for additional security only. Such assignment to Assignee shall
not be construed to bind Assignee to the performance of any of the covenants,
conditions or provisions contained in any such Lease or otherwise to impose any
obligation upon Assignee. Assignor agrees to execute and deliver to Assignee
such additional instruments, in form and substance reasonably satisfactory to
Assignee, as may hereinafter be requested by Assignee to further evidence and
confirm said assignment. Nevertheless, subject to the terms of this PARAGRAPH 1,
Assignee grants to Assignor a revocable license to operate and manage the
Mortgaged Property and to collect the Rents. Assignor shall hold the Rents or a
portion thereof sufficient
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Loan No. 3212525
to discharge all current sums due on the Loan for use in the payment of such
sums. Upon an Event of Default (as defined in the Mortgage), the license granted
to Assignor herein shall be automatically revoked by Assignee and Assignee shall
immediately be entitled to receive and apply all Rents, whether or not Assignee
enters upon and takes control of the Mortgaged Property. Assignee is hereby
granted and assigned by Assignor the right, at its option, upon the revocation
of the license granted herein to enter upon the Mortgaged Property in person, by
agent or by court-appointed receiver to collect the Rents. Any Rents collected
after the revocation of the license herein granted may be applied toward payment
of the Loan in such priority and proportion as Assignee, in its discretion,
shall deem proper. Notwithstanding the license granted to Assignor in this
Paragraph 1, if any Lease is terminated (including without limitation a
voluntary termination of the Lease approved by Assignee and a termination or
rejection of a Lease in a bankruptcy or other similar proceeding) and in
connection with such termination or rejection there is the payment of (i) a lump
sum settlement, (ii) a termination fee, premium or penalty, or (iii) any other
amount or amounts paid in conjunction with such termination (collectively and
singly, the "TERMINATION AMOUNT") then in such event, whether or not Assignor is
in default under the Note, the Mortgage, any other Loan Document or any Lease,
the Termination Amount shall be payable directly to Assignee and, at Assignee's
option, may be (x) applied to outstanding amounts due under the Loan, without
premium, or (y) held by Assignee as additional collateral securing the Note
until a new Lease or other collateral acceptable to Assignee in its reasonable
discretion is substituted for the terminated Lease. Nothing herein shall be
deemed approval by Assignee of the termination of any Lease or the payment of
any Termination Amount.
2. REMEDIES OF ASSIGNEE. Upon or at any time after an Event of Default,
Assignee may, at its option, without waiving such Event of Default, without
notice and without regard to the adequacy of the security for the Loan, either
in person or by agent, with or without bringing any action or proceeding, or by
a receiver appointed by a court, enforce its interest in the Leases and Rents
and take possession of the Mortgaged Property and have, hold, manage, lease and
operate the Mortgaged Property on such terms and for such period of time as
Assignee may deem proper and either with or without taking possession of the
Mortgaged Property in its own name, demand, xxx for or otherwise collect and
receive all Rents, including those past due and unpaid with full power to make
from time to time all alterations, renovations, repairs or replacements thereto
or thereof as may seem proper to Assignee and may apply the Rents to the payment
of the following in such order and proportion as Assignee in its sole discretion
may determine, any law, custom or use to the contrary notwithstanding: (a) all
reasonable expenses of managing and securing the Mortgaged Property, including,
without being limited thereto, the salaries, fees and wages of a managing agent
and such other employees or agents as Assignee may deem necessary or desirable
and all reasonable expenses of operating and maintaining the Mortgaged Property,
including, without being limited thereto, all taxes, charges, claims,
assessments, water charges, sewer rents and any other liens, and premiums for
all insurance which Assignee may deem necessary or desirable, and the reasonable
cost of all alterations, renovations, repairs or replacements, and all expenses
incident to taking and retaining possession of the Mortgaged Property; and (b)
the Loan, together with all costs and attorneys' fees. In addition to the rights
which Assignee may have herein, upon the occurrence of an Event of Default,
Assignee, at its option, may either require Assignor to pay monthly in advance
to Assignee, or any receiver appointed to collect the Rents, the fair and
reasonable rental value for the use and occupation of such part of the Mortgaged
Property as may be in possession of Assignor or may require Assignor to vacate
and surrender possession of the Mortgaged Property to Assignee or to such
receiver and, in default thereof, Assignor may be evicted by summary proceedings
or otherwise. For purposes of Paragraphs 1 and 2,
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Loan No. 3212525
Assignor grants to Assignee its irrevocable power of attorney, coupled with an
interest, to take any and all of the aforementioned actions and any or all other
actions designated by Assignee for the proper management and preservation of the
Mortgaged Property. The exercise by Assignee of the option granted it in this
Paragraph 2 and the collection of the Rents and the application thereof as
herein provided shall not be considered a waiver of any default by Assignor
under the Note, the Mortgage, the Leases, this Assignment or the Loan Documents.
3. NO LIABILITY OF ASSIGNEE. Assignee shall not be liable for any loss
sustained by Assignor resulting from Assignee's failure to let the Mortgaged
Property after an Event of Default or from any other act or omission of Assignee
in managing the Mortgaged Property after default unless such loss is caused by
the willful misconduct and bad faith of Assignee. Assignee shall not be
obligated to perform or discharge any obligation, duty or liability under the
Leases or under or by reason of this Assignment and Assignor shall, and hereby
agrees to, indemnify Assignee for and hold Assignee harmless from, any and all
liability, loss or damage which may or might be incurred under the Leases or
under or by reason of this Assignment and from any and all claims and demands
whatsoever, including the defense of any such claims or demands which may be
asserted against Assignee by reason of any alleged obligations and undertakings
on its part to perform or discharge any of the terms, covenants or agreements
contained in the Leases. Should Assignee incur any such liability, the amount
thereof, including costs, expenses and reasonable attorneys' fees, shall be
secured hereby and by the Mortgage and the Loan Documents and Assignor shall
reimburse Assignee therefor immediately upon demand and upon the failure of
Assignor so to do Assignee may, at its option, declare all sums secured hereby,
the Note, and the Mortgage and the Loan Documents immediately due and payable.
This Assignment shall not operate to place any obligation or liability for the
control, care, management or repair of the Mortgaged Property upon Assignee, nor
for the carrying out of any of the terms and conditions of the Leases; nor shall
it operate to make Assignee responsible or liable for any waste committed on the
Mortgaged Property by the tenants or any other parties, or for any dangerous or
defective condition of the Mortgaged Property, including, without limitation,
the presence of any Hazardous Materials (as defined in the Mortgage), or for any
negligence in the management, upkeep, repair or control of the Mortgaged
Property resulting in loss or injury or death to any tenant, licensee, employee
or stranger.
4. NOTICE TO LESSEES. Assignor hereby authorizes and directs the
lessees named in the Leases or any other or future lessees or occupants of the
Mortgaged Property upon receipt from Assignee of written notice to the effect
that Assignee is then the holder of the Mortgage and that a default exists
thereunder or under this Assignment, the Note or the other Loan Documents to pay
over to Assignee all Rents and to continue so to do until otherwise notified by
Assignee.
5. OTHER SECURITY. Assignee may take or release other security for the
payment of the Loan, release any party primarily or secondarily liable therefor
and apply any other security held by it to the reduction or satisfaction of the
Loan without prejudice to any of its rights under this Assignment.
6. OTHER REMEDIES. Nothing contained in this Assignment and no act done
or omitted by Assignee pursuant to the power and rights granted to Assignee
hereunder shall be deemed to be a waiver by Assignee of its rights and remedies
under the Note, the Mortgage or the Loan Documents and this Assignment is made
and accepted without prejudice to any of the rights and remedies possessed by
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Loan No. 3212525
Assignee under the terms thereof. The right of Assignee to collect the Loan and
to enforce any other security therefor held by it may be exercised by Assignee
either prior to, simultaneously with, or subsequent to any action taken by it
hereunder.
7. NO MORTGAGEE IN POSSESSION. Nothing herein contained shall be
construed as constituting Assignee a "mortgagee in possession" in the absence of
the taking of actual possession of the Mortgaged Property by Assignee. In the
exercise of the powers herein granted Assignee, no liability shall be asserted
or enforced against Assignee, all such liability being expressly waived and
released by Assignor.
8. CONFLICT OF TERMS. In case of any conflict between the terms of this
Assignment and the terms of the Mortgage, the terms of the Mortgage shall
prevail.
9. NO ORAL CHANGE. This Assignment and any provisions hereof may not be
modified, amended, waived, extended, changed, discharged or terminated orally,
or by any act or failure to act on the part of Assignor or Assignee, but only by
an agreement in writing signed by the party against whom the enforcement of any
modification, amendment, waiver, extension, change, discharge or termination is
sought.
10. CERTAIN DEFINITIONS. Unless the context clearly indicates a
contrary intent or unless otherwise specifically provided herein, words used in
this Assignment may be used interchangeable in singular or plural form and the
word "ASSIGNOR" shall mean "each Assignor and any subsequent owner or owners of
the Mortgaged Property or any part thereof or any interest therein," the word
"ASSIGNEE" shall mean "Assignee and any subsequent holder of the Note," the word
"NOTE" shall mean "the Note and any other evidence of indebtedness secured by
the Mortgage," the word "PERSON" shall include an individual, corporation,
partnership, trust, unincorporated association, government, governmental
authority, and any other entity, the words "MORTGAGED PROPERTY" shall include
any portion of the Mortgaged Property and any interest therein, and the word
"LOAN" shall mean the principal balance of the Note with interest thereon as
provided in the Note and the Mortgage and all other sums due pursuant to the
Note, the Mortgage, this Assignment and the other Loan Documents; whenever the
context may require, any pronouns used herein shall include the corresponding
masculine, feminine or neuter forms, and the singular form of nouns and pronouns
shall include the plural and vice versa.
11. NON-WAIVER. The failure of Assignee to insist upon strict
performance of any term hereof shall not be deemed to be a waiver of any term of
this Assignment. Assignor shall not be relieved of Assignor's obligations
hereunder by reason of (i) failure of Assignee to comply with any request of
Assignor or any other party to take any action to enforce any of the provisions
hereof or of the Mortgage, the Note or the other Loan Documents, (ii) the
release, regardless of consideration, of the whole or any part of the Mortgaged
Property, or (iii) any agreement or stipulation by Assignee extending the time
of payment or otherwise modifying or supplementing the terms of this Assignment,
the Note, the Mortgage or the Other Security Documents. Assignee may resort for
the payment of the Loan to any other security held by Assignee in such order and
manner as Assignee, in its discretion, may elect. Assignee may take any action
to recover the Loan, or any portion thereof, or to enforce any covenant hereof
without prejudice to the right of Assignee thereafter to enforce its rights
under this Assignment. The rights of Assignee under this Assignment shall be
separate, distinct and cumulative and none shall be given effect to the
exclusion of the
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Loan No. 3212525
others. No act of Assignee shall be construed as an election to proceed under
any one provision herein to the exclusion of any other provision.
12. INAPPLICABLE PROVISIONS. If any term, covenant or condition of this
Assignment is held to be invalid, illegal or unenforceable in any respect, this
Assignment shall be construed without such provision.
13. DUPLICATE ORIGINALS. This Assignment may be executed in any number
of duplicate originals and each such duplicate original shall be deemed to be an
original.
14. GOVERNING LAW. This Assignment shall be governed and construed in
accordance with the laws of the State in which the real property encumbered by
the Mortgage is located.
15. TERMINATION OF ASSIGNMENT. Upon payment in full of the Loan and the
delivery and recording of a satisfaction or discharge of Mortgage duly executed
by Assignee, this Assignment shall become and be void and of no effect.
16. LIMITATION ON LIABILITY. The provisions of Paragraph 46 of the
Mortgage are incorporated herein by this reference to the fullest extent as if
the text of such paragraph were set forth in its entirety herein.
THIS ASSIGNMENT, together with the covenants and warranties therein
contained, shall inure to the benefit of Assignee and any subsequent holder of
the Mortgage and shall be binding upon Assignor, his heirs, executors,
administrators, successors and assigns and any subsequent owner of the Mortgaged
Property.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK; SIGNATURE PAGE(S) FOLLOW(S)]
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IN WITNESS WHEREOF, Assignor has executed this Assignment as of the day
and year first above written.
ASSIGNOR:
BIRCH POND REALTY CORPORATION
Witnessed By: (doing business in the State of New Hampshire
as BPRC)
By: /s/ Xxxx X. Xxxxxx
-----------------------------------
Name:Xxxx X. Xxxxxx
Its: Treasurer
Name: /s/ Xxxxxxx X. Xxxxxxx
--------------------------
Name: /s/ Xxxxxxx X. Xxxxxxx
--------------------------
COMMONWEALTH OF MASSACHUSETTS)
)
COUNTY OF SUFFOLK )
The foregoing instrument was acknowledged before me this 1st day of
March, 1999 by Xxxx X. Xxxxxx, Treasurer, of Birch Pond Realty Corporation, a
Delaware corporation (doing business in the State of New Hampshire as BPRC),
on behalf of said corporation.
/s/ Xxxxxxxxx Xxxxxx
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Notary Public: Xxxxxxxxx Xxxxxx
My Commission Expires: 05/27/05
[SEAL]
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EXHIBIT A
That certain lot or tract of land, with the buildings and improvements
thereon, located in Tilton, Xxxxxxx County, New Hampshire, and being bounded and
described as follows:
Beginning at the northeast corner of the described premises at land now
or formerly of the State of New Hampshire and at a re-bar on the westerly
sideline of Xxxxx 000, Xxxxxxx Xxxx:
1. S 19(Degree)20'44" E 45.87' by said Route 132 to a point; then
2. By a curve to the right having a Delta of 17(Degree)00'15", a
radius of 930.00 feet, an arc distance of 276.00 feet, and a
chord bearing of S 10(Degree) 50' 37" E and a chord distance
of 274.99 feet by said Route to a re-bar; then
3. S 02(Degree)20'29" E 155.23' by said Route to a re-bar; then
4. S 03(Degree)47'32" W 86.83' by said Route to a re-bar; then
5. S 03(Degree)05'40" W 523.55' by said Route to a re-bar; then
6. By a curve to the left having a Delta of 01(Degree)40'53" and
a radius of 11,489.16 feet, an arc distance of 337.18 feet,
and a chord bearing of S 02(Degree)15' 13" W and a chord
distance of 337.17 feet by said Route to a re-bar; then
7. By a curve to the left having a Delta of 02(Degree)59'59" and
a radius of 11, 492.87 feet, an arc distance of 601.71 feet,
and a chord bearing of S 01(Degree) 03' 20" W and a chord
distance of 601.64 feet, by said Route to a re-bar; then
8. By a curve to the left having a Delta of 01(Degree)52'45" and
a radius of 11,501.15 feet, an arc distance of 377.22 feet,
and a chord bearing of S 02(Degree) 31' 31" W and a chord
distance of 377.20 feet, by said Route to a re-bar; then
9. S 03(Degree)27'54" E 248.12' by said Route to a point at now or
formerly of Xxxxxx; then
10. S 89(Degree)39'25" W 287.08' by said land of Xxxxxx to a re-bar,
then
11. S 08(Degree)48'25" W 225.00' by said land of Xxxxxx to a re-bar;
then
12. S 08(Degree)48'25" W, a distance of 20.00' to a point at land
now or formerly of the State of New Hampshire; then
Page 1 of 3
13. N70(Degree)50'37"W 54.78' by land of the State; then
14. N 81(Degree)42'19" W 58.01' by land of the State; then
15. S 82(Degree)53'59" W142.27' by land of the State; then
16. S76(Degree)57'22"W 157.00' by land of the State; then
17. S 89(Degree)46'48"W 67.18' by land of the State; then
18. N65(Degree)59'17"W 79.43' by land of the State; then
19. N47(Degree)43'27"W 87.84' by land of the State; then
20. N27(Degree)29'46"W 83.28' by land of the State; then
21. S73(Degree)59'49"W 53.30' by land of the State; then
22. N45(Degree)19'18"W 43.24' by land of the State; then
23. N26(Degree)13'08" W16.85'by land of the State; then
24. S83(Degree)49'28"W 29.65' by land of the State; then
25. N60(Degree)40'11"W 56.97' by land of the State; then
26. N38(Degree)05'58"W 37.81' by land of the State; then
27. N60(Degree)17'32"W 38.15' by land of the State; then
28. N31(Degree)50'23"W 27.09' by land of the State; then
29. N74(Degree)42'14"W 22.80' by land of the State; then
30. S74(Degree)47'09" W 91.21' by land of the State; then
31. N87(Degree)39'11"W 149.12' by land of the State; then
32. S72(Degree)41'13"W 67.05' by land of the State; then
33. N72(Degree)57'33" W 454.56' by land of the State; then
34. N29(Degree)36'39"W 498.10' by land of the State; then
Page 2 of 3
35. N29(Degree)36'39"W 56.30' by land of the State; then
36. N16(Degree)46'49"W 348.61' by land of the State to a concrete
bound; then
37. N14(Degree)31'44"E 885.88' by land of the State to a concrete
bound; then
38. N58(Degree)29'32"E 430.73' by land of the State to a re-bar; then
39. N05(Degree)11'37"W 335.93' by land of the State to a re-bar; then
40. S76(Degree)46'28"W 55.90' by land of the State to a concrete
bound; then
41. N85(Degree)46'21"W 3.96' by land of the State to a point at
land now or formerly of DM Management Company ("DM") ; then
42. N66(Degree)32'51"E 1044.50 feet by land of said DM, then
43. N85(Degree)07'38"E 305.57' by land of said DM to a stone wall;
then
44. S25(Degree)23'01"E 51.24' by land now or formerly of Xxxxxx
and said wall to a re-bar at land of the State; then
45. S66(Degree)06'34"W 50.17' by land of the State and a stone
wall to a drill hole in the wall; then
46. S21(Degree)06'31"E 95.43' by land of the State; then
47. S18(Degree)16'00"E 175.19' by land of the State to a re-bar; then
48. N69(Degree)11'55"E 499.88' by land of the State to the point of
beginning.
Meaning and intending to describe and convey the land shown on Plan
entitled, "ALTA/ACSM LAND TITLE SURVEY, Plan of Land Prepared for DM Management
Company, Route 132 (Xxxxxxx Road), Tilton, NH," dated November 19, 1998, by
Xxxxxx Surveying Consultants and recorded in the Xxxxxxx County Registry of
Deeds (the "Registry") on February 16, 1999, in Drawer L-31 #'s 61 and 62.
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