HomeMy WebLinkAbout10-00500080- 00075111Lawyers Title Company of Brazos County
1450 CopperBeld Parkway
College Station, TX 77845
Phone: 979 - 776 -3600
Fax: 979 - 776 -2383
TITLE REPORT
Date: July 2, 2009
File No.: GF No. M2075
Record Title at the Effective Date Hereof is Vested in:
60 -Jones Associates, Ltd.
The Land Referred to In this Report is Described as Follows:
TRACT ONE:
Metes and bound description of all that certain tract or parcel of land lying and being
situated in the J. H. JONES SURVEY, ABSTRACT NO. 26, Brazos County, Texas.
Said tract being a portion of the remainder of a called 175 acre tract as described by a
deed to Steve Hudetts recorded in Volume 63, Page 182 of the Deed Records of
Brazos County, Texas.
Said tract being more particularly described by metes and bounds as follows:
COMMENCING at a 1/2 inch iron rod found marking the west corner of a called 5.394
acre tract as described by a deed to Frank Fields and wife, Betty J. Fields, recorded in
Volume 4352, Page 15 of the Official Public Records of Brazos County, Texas, and a
southwest corner of said remainder of 175 acre tract, said iron rod found being on the
northeast line of a called 1.896 acre tract as described by a deed to Thomas Moore
recorded in Volume 1116, Page 583 of the Official Records of Brazos County, Texas,
marking the west corner of said 5.394 acre tract;
THENCE: N 44° 49'40" W along the common line of said remainder of 175 acre tract
and said 1.896 acre tract for a distance of 192.94 feet to a 5/8 inch iron rod set marking
the POINT OF BEGINNING of this herein described tract;
THENCE: N 44° 49'40" W continuing along the common line of said remainder of 175
acre tract and said 1.896 acre tract for a distance of 1657.90 feet to a 1/2 inch iron rod
found marking the north corner of a called 4.4949 acre tract as described by a deed to
Charles Edward Ottaway, Jr. and wife, Cynthia Ann Ottaway, recorded in Volume 1237,
Page 295 of the Official Public Records of Brazos County, Texas, said iron rod found
being on the southeast line of a called 1.00 acre tract as described by a deed to James
L. Harris recorded in Volume 923, Page 337 of the Official Public Records of Brazos
County, Texas;
THENCE: N 43 44'23" E along the common line of said remainder of 175 acre tract
and said 1.00 acre tract for a distance of 126.40 feet to a 1/2 inch ron rod found
marking the east corner of said 1.0 acre tract;
THENCE: N 47° 31'46" W continuing along the common line of said remainder of 175
acre tract and said 1.00 acre tract for a distance of 934.59 feet to a 1/2 inch iron rod
found marking the north corner of a called 7.922 acre tract as described by a deed to
Gloster Jefferson recorded in Volume 836, Page 129 of the Official Records of Brazos
County, Texas, said iron rod found marking the east comer of a called 7.922 acre tract
as described by a deed to Bennie Wilson, Jr. and wife, Gloria M. Wilson, recorded in
Volume 2915, Page 242 of the Official Public Records of Brazos County, Texas, and
the south corner of a called 6.5 acre tract as described by a deed to Fred Jefferson and
wife, Ruby Jefferson, recorded in Volume 122, Page 45 of the Deed Records of Brazos
County, Texas;
THENCE: N 44° 45' 10" E along the common line of said remainder of 175 acre tract
and said 6.5 acre tract for a distance of 426.31 feet to a 5/8 inch iron rod set on the
south line of Jones Road marking the east corner of said 6.5 acre tract and the west
corner of a called 0.744 acre tract as described by a Quit Claim Deed from Brazos
County to Lucy Hudetts Walker signed and dated October 8, 1990 (not filed for record);
THENCE: N 62 54'01" E along the occupied south line of Jones Road, same being the
south line of said 0.744 acre tract, for a distance of 292.47 feet to an angle point in said
line;
THENCE: N 81 02'30" E continuing along the occupied south line of Jones Road,
same being the south line of said 0.744 acre tract, for a distance of 486.30 feet to a
point marking the east corner of said 0.744 acre tract;
THENCE: N 89 59' 18" E continuing along the south line of Jones Road for a distance
of 47.38 feet to a 5/8 inch iron rod set marking the beginning of a clockwise curve
having a radius of 904.93 feet;
THENCE: along said curve through a central angle of 42 21'41" for an arc distance of
669.05 feet (chord bears: S 68 49'52" E - 653.92 feet) to a point in an existing fence
line marking the ending point of said curve;
THENCE: S 47° 39'02" E along the southwest line of Jones Road and along said fence
line for a distance of 1502.88 feet to a 5/8 inch iron rod set marking the east corner of
this herein described tract;
THENCE: S 44° 11'15" W through said remainder of 175 acre tract and along the
centerline of an existing 60.00 foot wide electrical easement for a distance of 397.21
feet to an existing power pole;
THENCE: S 40 58'09" W continuing through said remainder of 175 acre tract and
along the centerline of said electrical easement for a distance of 1160.87 feet to the
POINT OF BEGINNING containing 79.169 acres of land, more or less.
Parcel Two
Metes and bounds description of all that certain tract or parcel of land lying and being
situated in the J. H. JONES SURVEY, ABSTRACT NO. 26, Brazos County, Texas. Said
tract being a portion of the remainder of a called 175 acre tract as described by a deed
to Steve Hudetts recorded in Volume 63, Page 182 of the Deed Records of Brazos
County, Texas.
Said tract being more particularly described by metes and bounds as follows:
BEGINNING at a 5/8 inch iron rod found at the intersection of the southwest line of
Jones Road (a county maintained public road) and the existing northwest line of F.M.
60 (Raymond Stotzer Parkway), for reference a concrete right -of -way marker found
bears: N 40 43' 59" E for a distance of 14.45 feet;
THENCE: S 40 43'59" W along the northwest line of F.M. 60 for a distance of 472.53
feet to a concrete right -of -way marker found marking an angle point in said line;
THENCE: S 41 51'56" W continuing along the northwest line of F.M. 60 for a distance
of 597.43 feet to a 5/8 inch iron rod set on the northeast line of a called 1.328 acre tract
as described by a deed to Betty Lynn Trcalek Suehs, Carol Ann Trcalek Petty, Susan
Denise Trcalek Skrabanek and Donna Ruth Trcalek Jones, recorded in Volume 4818,
Page 285 of the Official Public Records of Brazos County, Texas, marking the south
corner of this herein described tract, for reference a 318 inch iron rod found marking the
east corner of said 1.328 acre tract bears: S 44 43' 07" E for a distance of 0.53 feet;
THENCE: N 44 43'07" W along the common line of said remainder of 175 acre tract
and said 1.328 acre tract for a distance of 415.67 feet to a cross -tie fence corner post
found marking the north corner of said 1.328 acre tract;
THENCE: S 42° 50' 02" W continuing along the common line of said remainder of 175
acre tract and said 1.328 acre tract for a distance of 139.10 feet to a 3/8 inch iron rod
found marking the west corner of said 1.328 acre tract and the most easterly north
corner of a called 5.394 acre tract as described by a deed to Frank Fields and wife,
Betty J. Fields, recorded in Volume 4352, Page 15 of the Official Public Records of
Brazos County, Texas;
THENCE: S 43 16'54: W along the common line of said remainder of 175 acre tract
and said 5.394 acre tract for a distance of 125.56 feet to a cross -tie fence corner post
found marking an interior corner of said 5.394 acre tract;
THENCE: N 46° 53' 11" W continuing along the common line of said remainder of 175
acre tract and said 5.394 acre tract for a distance of 679.90 feet to a cross -tie fence
corner post found marking the north comer of said 5.394 acre tract;
THENCE: S 44° 52'55" W continuing along the common line of said remainder of 175
acre tract and said 5.394 acre tract for a distance of 263.23 feet to a 1/2 inch iron rod
found on the northeast line of a called 1.896 acre tract as described by a deed to
Thomas Moore recorded in Volume 1116, Page 583 of the Official Records of Brazos
County, Texas, marking the west comer of said 5.394 acre tract:
THENCE: N 44 49'40" W along the common line of said remainder of 175 acre tract
and said 1.896 acre tract for a distance of 192.94 feet to a 5/8 inch iron rod set marking
the west corner of this herein described tract, for reference a 1/2 inch iron rod found
marking the north corner of a called 4.4949 acre tract as described by a deed to
Charles Edward Ottaway, Jr. and wife, Cynthia Ann Ottaway, recorded in Volume 1237,
Page 295 of the Official Public Records of Brazos County, Texas, on the southeast line
of a called 1.00 acre tract as described by a deed to James L. Harris recorded in
Volume 923, Page 337 of the Official Records of Brazos County, Texas, marking a wast
corner of said remainder of 175 acre tract bears: N 44 49'40" W for a distance of
1657.90 feet;
THENCE: N 40 58'09" E through said remainder of 175 acre and along the centerline
of an existing 60.00 foot wide electrical easement for a distance of 1160.87 feet to an
existing power pole;
THENCE: N 44° 11'15" E continuing through said remainder of 175 acre tract and
along the centerline of said electrical easement for a distance of 397.21 feet to a 5/8
inch iron rod set in the southwest fenced line of Jones Road marking the north corner of
this herein described tract;
THENCE: S 47 39'02" E along the southwest line of Jones Road and along said fence
line for a distance of 565.64 feet to a 60d nail found in the top of a fence post marking
the north corner of a called 1.00 acre tract as described by a deed to Steve Hudetts and
wife, Barbara D. Hudetts, recorded in Volume 366, Page 8 of the Deed Records of
Brazos County, Texas;
THENCE: S 42 24'01 W through said remainder of 175 acre tract and along the
northwest line of said 1.00 acre Hudetts tract for a distance of 284.90 feet to a 5/8 inch
iron rod set marking the west corner of said 1.00 acre tract;
THENCE: S 47° 35'59" E continuing through said remainder of 175 acre tract and
along the southwest line of said 1.00 acre Hudetts tract for a distance of 145.20 feet to
a 5/8 inch iron rod set marking the south corner of said 1.00 acre tract;
THENCE: N 42 24'01" E continuing through said remainder of 175 acre tract and
along the southeast line of said 1.00 acre Hudetts tract for a distance of 285.03 feet to
a 5/8 inch iron rod set on the southwest line of Jones Road marking the east corner of
said 1.00 acre tract;
THENCE: S 47 39' 02" E along the southwest line of Jones Road for a distance of
588.53 feet to the POINT OF BEGINNING, containing 37.658 acres of land, more or
less.
Parcel Three
Metes and bounds description of all that certain tract of land lying and being situated in
the J. H. JONES SURVEY, ABSTRACT NO. 26, Brazos County, Texas. Said tract
being the same tract of land as described by a Quitclaim Deed to Lucy Hudetts Walker
recorded in Volume 2455, Page 43 of the Official Records of Brazos County, Texas.
Said tract being more particularly described by metes and bounds as follows:
BEGINNING at a 5/8 inch iron rod found in the existing south fenced line of Jones
Road, same being the northerly line of the remainder of a called 175 acre tract as
described by a Deed to Steve Hudetts recorded in Volume 63, Page 182 of the Deed
Records of Brazos County, Texas, said iron rod found marking the east corner of a
called 6.5 acre tract as described by a Deed to Fred Jefferson and wife, Ruby
Jefferson, recorded in Volume 122, Page 45 of the Deed Records of Brazos County,
Texas;
THENCE: through the existing right -of -way of Jones Road and along the northerly lines
of said 0.744 acre tract for the following calls:
N 44 39' 18" E for a distance of 254.37 feet to a 5/8 inch iron rod found;
N 76° 28' 02" E for a distance of 119.31 feet to a 5/8 inch iron rod found;
N 89° 59' 18" E for a distance of 445.95 feet to a point in the existing south fenced line
of Jones Road marking the east corner of this herein described tract;
THENCE: along the existing south fenced line of Jones Road, same being the northerly
line of said remainder of 175 acre tract, for the following calls:
S 81' 02' 30" W for a distance of 486.30 feet to a point;
S 62 54' 01" W for a distance of 292.47 feet to the POINT OF BEGINNING, containing
0.744 of an acre of land, more or less.
Parcel Four
Metes and bounds description of all that certain tract or parcel of land lying and being
situated in the J. H. JONES SURVEY, ABSTRACT NO. 26, Brazos County, Texas.
Said tract being the remainder of a called 1.00 acre tract as described by a Deed to
Steve Hudetts and wife, Barbara D. Hudetts, recorded in Volume 366, Page 8 of the
Deed Records of Brazos County, Texas.
Said tract being more particularly described by metes and bounds as follows:
BEGINNING at a 5/8 inch iron rod found on the southwest line of Jones Road (variable
width R.O.W.) marking the east corner of said remainder of 1.00 acre tract and a
northerly corner of the remainder of a called 175 acre tract as described by a Deed to
Steve Hudetts recorded in Volume 63, Page 182 of the Deed Records of Brazos
County, Texas, for reference a 5/8 inch iron rod found on the northwest line of FM 60
marking the east corner of said remainder of 175 acre tract bears: S 47 39' 02" E for a
distance of 588.53 feet;
THENCE: S 42° 24'01" W along the common line of said remainder of 1.00 acre tract
and said remainder of 175 acre tract for a distance of 285.00 feet to a 5/8 inch iron rod
found marking the south comer of said remainder of 1.00 acre tract;
THENCE: N 47 35'59" W continuing along the common line of said remainder of 1.00
acre tract and said remainder of 175 acre tract for a distance of 145.20 feet to a 5/8
inch iron rod found marking the west corner of said remainder of 1.00 acre tract;
THENCE: N 42° 24'01" E continuing along the common line of said remainder of 1.00
acre tract and said remainder of 175 acre tract for a distance of 284.90 feet to a 60D
nail found in a fence post on the southwest line of Jones Road marking the north corner
of said remainder of 1.00 acre tract;
THENCE: S 47 39'02" E along the southwest line of Jones Road for a distance of
145.20 feet to the POINT OF BEGINNING, containing 0.95 of an acre of land, more or
less.
SAVE AND EXCEPT FROM TRACT ONE
Lot Two (2), Block One (1) and Lots Fifteen (15), Sixteen (16), Seventeen (17),
Eighteen (18) and Nineteen (19), Block Three (3), Aggieland Business Park, Phase 1,
an addition to Brazos County, Texas, according to the plat recorded in Volume 8562,
Page 146, Official Records of Brazos County, Texas.
and
Lots One -A (1A), One -B (1 B), Block One (1), Aggieland Business Park, an addition to
Brazos County, Texas, according to the replat recorded in Volume 8930, Page 158,
Official Records of Brazos County, Texas.
and
Lots Seven (7) and Eight (8), Block Four (4), Aggieland Business Park, Phase 4, an
addition to Brazos County, Texas, according to plat recorded in Volume 8169, Page
135, Official Records of Brazos County, Texas.
TRACT TWO
Lot Two (2), Block One (1) and Lots Fifteen (15), Sixteen (16), Seventeen (17),
Eighteen (18) and Nineteen (19), Block Three (3), Aggieland Business Park, Phase 1,
an addition to Brazos County, Texas, according to the plat recorded in Volume 8562,
Page 146, Official Records of Brazos County, Texas.
TRACT THREE
Lots One -A (1A) and One -B (1 B), Block One (1), Aggieland Business Park, an addition
to Brazos County, Texas, according to the replat recorded in Volume 8930, Page 158,
Official Records of Brazos County, Texas.
The search contained herein was made with the benefit of Mortgagee Title Policy Nos.
G82- 0404476, L85- Z007369 and 7422243 - 77199375.
The above name(s) and legal description was searched for deeds, deeds of trust,
mechanics liens, judgments, federal tax liens, state tax liens, and all other filings in the
official records which would affect title, from August 27, 2007 at 10:29 a.m. to June 15,
2009 at 8:00 a.m. and we find no other actions or conveyance affecting the title to said
land from August 27, 2007 at 10:29 a.m. except the following:
Third Lien Deed of Trust executed by 60 -Jones Associates, Ltd., a Texas
limited partnership to Michael R. Rudloff, Trustee for the benefit of The
Brenham National Bank, dated August 14, 2007, recorded in Volume
8204, Page 229, Official Records of Brazos County, Texas (in the amount
of $1,000,000.00). (As to Tracts 1, 2 & 3)
• Affidavit of Certification of On-Site Sewage Facility (OSSF) Maintenance
executed by 60 -Jones LLC, dated December 28, 2007, recorded in
Volume 8412, Page 263, Official Records of Brazos County, Texas. (As
to Tract 2, Lot 19, Block 3 ONLY)
• Deed of Trust executed by 60-Jones Associates, Ltd. to Stephen F.
Marquart, Trustee for the benefit of Wells Fargo Bank, National
Association, dated June 3, 2008, recorded in Volume 8642, Page 31,
Official Records of Brazos County, Texas (in the amount of $538,000.00).
(As to Tract 2, Lot 19, Block 3 ONLY)
• Assignment of Rents executed by 60 -Jones Associates, Ltd. to Wells
Fargo Bank, National Association, dated June 3, 2008, recorded in
Volume 8642, Page 41, Official Records of Brazos County, Texas. (As to
Tract 2, Lot 19, Block 3 ONLY)
• Release of Lien executed by The Brenham National Bank to 60 -Jones
Associates, Ltd., dated June 12, 2008, recorded in Volume 8650, Page
140, Official Records of Brazos County, Texas; said document partially
releases Deed of Trust recorded in Volume 8030, Page 68, Official
Records of Brazos County, Texas. (As to Tract 2, Lot 19, Block 3 ONLY)
• Partial Release of Lien executed by The Brenham National Bank to 60-
Jones Associates, Ltd., dated June 12, 2008, recorded in Volume 8650,
Page 142, Official Records of Brazos County, Texas; said document
partially releases Deed of Trust recorded in Volume 8204, Page 229,
Official Records of Brazos County, Texas. (As to Tract 2, Lot 19, Block 3
ONLY)
Partial Release of Lien executed by The Brenham National Bank to 60-
Jones Associates, Ltd., dated June 12, 2008, recorded in Volume 8650,
Page 144, Official Records of Brazos County, Texas, said document
partially releases Deed of Trust recorded in Volume 7020, Page 251,
Official Records of Brazos County, Texas. (As to Tract 2, Lot 19, Block 3
ONLY)
Plat executed by 60- Jones, LLC dba Aggieland Business, dated January
16, 2009, recorded in Volume 8930, Page 158, Official Records of Brazos
County, Texas. (As to Tract 3)
Deed of Trust executed by 60 -Jones Associates, Ltd., a Texas limited
partnership to Michael R. Rudloff, Trustee for the benefit of The Brenham
National Bank, dated February 17, 2009, recorded in Volume 8967, Page
214, Official Records of Brazos County, Texas (in the amount of
$1,000,000.00). (As to Tract 3, Lot 1A, Block 1 ONLY)
Release of Lien executed by The Brenham National Bank to 60 -Jones
Associates, Ltd., dated February 18, 2009, recorded in Volume 8967,
Page 228, Official Records of Brazos County, Texas; said document
releases Deed of Trust recorded in Volume 7020, Page 251, Official
Records of Brazos County, Texas. (As to Tracts 1, 2 & 3)
Release of Lien executed by The Brenham National Bank to 60 -Jones
Associates, ltd, dated February 18, 2009, recorded in Volume 8967, Page
234, Official Records of Brazos County, Texas; said document releases
Deed of Trust recorded in Volume 8030, Page 68, Official Records of
Brazos County, Texas. (As to Tracts 1, 2 & 3)
Partial Release of Lien executed by The Brenham National Bank to 60-
Jones Associates, Ltd., dated February 18, 2009, recorded in Volume
8967, Page 240, Official Records of Brazos County, Texas; said
document partially releases Deed of Trust recorded in Volume 8204, Page
229, Official Records of Brazos County, Texas. (As to Tract 3, Lot 1A,
Block 1 ONLY)
THIS REPORT IS ISSUED WITH THE EXPRESS UNDERSTANDING, EVIDENCED
BY THE ACCEPTANCE OF SAME, THAT THE, UNDERSIGNED, LAWYERS TITLE
COMPANY OF BRAZOS COUNTY DOES NOT UNDERTAKE HEREIN TO GIVE OR
EXPRESS ANY OPINION AS TO THE VALIDITY OF THE TITLE TO THE PROPERTY
ABOVE DESCRIBED, NOR AS TO THE VALIDITY OF ANY OF THE INSTRUMENTS
REPORTED HEREIN, INCLUDING THE PURPORTED DEED(S) ESTABLISHING THE
RECORD OWNER(S) CITED ABOVE, BUT 1S SIMPLY REPORTING BRIEFLY
HEREIN, AS TO THE INSTRUMENTS FOUNDS OF RECORD PERTAINING TO THE
SUBJECT PROPERTY, AND IT IS EXPRESSLY UNDERSTOOD AND AGREED
THAT THIS REPORT IS NEITHER A GUARANTY OR WARRANTY OF THE TITLE. Y
ACCEPTANCE OF THIS TITLE REPORT, IT IS UNDERSTOOD THAT THE LIABILITY
OF THE ISSUER HEREOF IS EXPRESSLY LIMITED TO $162.38. THIS SEARCH
HAS BEEN LIMITED TO THE ABOVE MATTERS AND THE ABOVE TIME PERIOD
AND LAWYERS TITLE COMPANY OF BRAZOS COUNTY HAS NOT SEARCHED #
FOR, NOR HAS REFLECTED HEREIN, ANY EXAMINATION AS TO TAX SUITS,..
SPECIAL ASSESSMENTS, CONFLICTS OR OTHER INSTRUMENTS WHICH MAY x
AFFECT TITLE TO THE SUBJECT PROPERTY. IF TITLE INSURANCE COVERAGE,
WHICH IS NOT PROVIDED BY THIS REPORT, IS NEEDED, SAID COVERAGE IS
AVAILABLE THROUGH THE APPLICABLE PROMULGATED POLICY(IES), AT THE
SPECIFIED PROMULGATED PREMIUM. )
OFFICIAL PUBLIC RECORDS OF BRAZOS COUNTY, TEXAS, HAVE BEEN
CHECKEDTHROUGH June 15,2009@ 8:00 a.m.
Lawyers Title Company of Brazos County
By
in Ticor Title Insurance Company
WOOD
Policy No.: TX2667- 48- S31190- 2009.7422243 - 77199375
LOAN POLICY OF TITLE INSURANCE (T-2)
Issued by
Ticor Title Insurance Company
Any notice of claim and any other notice or statement In writing required to be given the Company under this Policy must
be given to the Company at the address shown in Section 17 of the Conditions.
COVERED RISKS
SUBJECT TO THE EXCLUSIONS FROM COVERAGE, THE EXCEPTIONS FROM COVERAGE CONTAINED IN SCHEDULE B
AND THE CONDITIONS, TICOR TITLE INSURANCE COMPANY, a California corporation (the "Company ") insures, as of
Date of Policy and, to the extent stated in Covered Risks 11, 13 and 14, after Date of Policy, against loss or damage, not exceeding the
Amount of Insurance, sustained or incurred by the Insured by reason of-
1. Title being vested other than as stated in Schedule A.
2. Any defect in or lien or encumbrance on the Title. This Covered Risk includes but is not limited to insurance against loss from:
(a) A defect in the Title caused by:
(i) forgery, fraud, undue influence, duress, incompetency, incapacity or impersonation;
(ii) failure of any person or Entity to have authorized a transfer or conveyance;
(iii) a document affecting Title not properly created, executed, witnessed, sealed, acknowledged, notarized or delivered;
(iv) failure to perform those acts necessary to create a document by electronic means authorized by law;
(v) a document executed under a falsified, expired or otherwise invalid power of attorney;
(vi) a document not properly filed, recorded or indexed in the Public Records including failure to perform those acts by
electronic means authorized by law; or
(vii) a defective judicial or administrative proceeding.
(b) The lien of real estate taxes or assessments imposed on the Title by a governmental authority due or payable, but
unpaid.
(c) Any encroachment, encumbrance, violation, variation, or adverse circumstance affecting the Title that would be disclosed
by an accurate and complete land survey of the Land.
The term "encroachment" includes encroachments of existing improvements located on the Land onto adjoining land, and
encroachments onto the Land of existing improvements located on adjoining land.
3. Lack of good and indefeasible Title.
4. No right of access to and from the Land.
5. The violation or enforcement of any law, ordinance, permit, or governmental regulation (including those relating to building and
zoning) restricting, regulating, prohibiting or relating to:
(a) the occupancy, use or enjoyment of the Land;
(b) the character, dimensions or location of any improvement erected on the Land;
(c) subdivision of land; or
(d) environmental protection
if a notice, describing any part of the Land, is recorded in the Public Records setting forth the violation or intention to
enforce, but only to the extent of the violation or enforcement referred to in that notice.
6. An enforcement action based on the exercise of a governmental police power not covered by Covered Risk 5 if a notice of the
enforcement action, describing any part of the Land, is recorded in the Public Records, but only to the extent of the
enforcement referred to in that notice.
7. The exercise of the rights of eminent domain if a notice of the exercise, describing any part of the Land, is recorded in the Public
Records,
S. Any taking by a governmental body that has occurred and is binding on the rights of a purchaser for value without Knowledge.
9. The invalidity or unenforceability of the lien of the Insured. Mortgage upon the Title. This Covered Risk includes but is not limited
to insurance against loss from any of the following impairing the lien of the Insured Mortgage:
(a) forgery, fraud, undue influence, duress, incompetency, incapacity or impersonation;
(b) failure of any person or Entity to have authorized a transfer or conveyance;
(c) the Insured Mortgage not being properly created, executed, witnessed, sealed, acknowledged, notarized or delivered;
(d) failure to perform those acts necessary to create a document by electronic means authorized by law;
(e) a document executed under a falsified, expired or otherwise invalid power of attorney;
(f) a document not properly filed, recorded or indexed in the Public Records including failure to perform those
acts by electronic means authorized by law; or
7422243 (4/08) Loan Policy of Title Insurance (T -2) (05/01/08)
(g) a defective judicial or administrative proceeding.
10. The lack of priority of the lien of the Insured Mortgage over any other lien or encumbrance.
11. The lack of priority of the lien of the Insured Mortgage
(a) as security for each and every advance of proceeds of the loan secured by the Insured Mortgage over any statutory or
constitutional mechanic's, contractor's, or materialman's lien for services, labor or material having its inception on or before
Date of Policy; and
(b) over the lien of any assessments for street improvements under construction or completed at Date of Policy.
12. The invalidity or unenforceability of any assignment of the Insured Mortgage, provided the assignment is shown in Schedule A,
or the failure of the assignment shown in Schedule A to vest title to the Insured Mortgage in the named Insured assignee free
and clear of all liens.
13. The invalidity, unenforceability, lack of priority or avoidance of the lien of the Insured Mortgage:
(a) resulting from the avoidance in whole or in part, or from a.court order providing an alternative remedy, of any transfer of all
or any part of the title to or any interest in the Land occurring prior to the transaction creating the lien of the Insured
Mortgage because that prior transfer constituted a fraudulent or preferential transfer under federal bankruptcy, state
insolvency or similar creditors' rights laws; or
(b) because the Insured Mortgage constitutes a preferential transfer under federal bankruptcy, state insolvency or similar
creditors' rights laws by reason of the failure of its recording in the Public Records:
(i) to be timely, or
(ii) to impart notice of its existence to a purchaser for value or a judgment or lien creditor.
14. Any defect in or lien or encumbrance on the Title or other matter included in Covered Risks I through 13 that has been created
or attached or has been filed or recorded in the Public Records subsequent to Date of Policy and prior to the recording of
the Insured Mortgage in the Public Records.
The Company will also pay the costs, attorneys' fees and expenses incurred in defense of any matter insured against by this Policy,
but only to the extent provided in the Conditions.
i TiCOR T[
I T1,E•,1JNUR1 COMPANY
Authorized Signatory
TX2667 531190
Lawyers Title Company of Brazos County
1450 Copperfield Parkway
College Station, TX 77845
Tel:(979) 776 -3600
Fax:(979) 776 -3700
Seeto Wry
7422243 (4/08) Loan Policy of Title Insurance (T -2) (05/01/08)
LOAN POLICY OF TITLE INSURANCE
Issued by
Ticor Title Insurance Company
SCHEDULE A
Name and Address of Title Insurance Company:
TICOR TITLE INSURANCE COMPANY
2001 Bryan Street, Suite 1700, Dallas, Texas 75201
File No.: S31190
Loan No.:
Address for Reference only: Jones Rd., College Station, TX 77845
Amount of Insurance: $1,000,000.00
Date of Policy: February 19, 2009, at 3:08 pm
1. Name of Insured: The Brenham National Bank
2. The estate or interest in the Land that is encumbered by the Insured Mortgage is: Fee Simple
3. Title is insured as vested in: 60 -Jones Associates, Ltd.
4. The Insured Mortgage, and its assignments, if any, are described as follows:
Premium: $5,674.00
Deed of Trust executed by 60 -Jones Associates, Ltd., a Texas limited partnership, to Michael R. Rudloff, Trustee, dated
effective February 17, 2009; securing the payment of one note of even date therewith in the principal sum of
$1,000,000.00, payable to The Brenham National Bank, said Deed of Trust filed for record with the Office of the County
Clerk of Brazos County, Texas on February 19, 2009, recorded in Volume 8967, Page 214, Official Records of Brazos
County, Texas.
5. The Land referred to in this policy is described as follows:
Lot 1A, Block 1, AGGIELAND BUSINESS PARK, a subdivision in Brazos County, Texas, according to the Replat
recorded in Volume 8930, Page 158, Official Records of Brazos County, Texas.
6. This policy incorporates by reference those endorsements selected below:
❑ T -5 (Leasehold Mortgagee Policy Endorsement)
❑ T -17 (Planned Unit Development) The following subparagraph(s) of this endorsement are deleted:
❑ T -19 (Restrictions, Encroachments, Minerals) The following subparagraph(s) of this endorsement are deleted:
❑ T -28 (Condominium) The following subparagraph(s) of this endorsement are deleted:
❑ T -30 (Tax Deletion)
❑ T-31 (Manufactured Housing) referring to manufactured housing unit serial number:
❑ T -31.1 (Supplemental Coverage Manufactured Housing Unit)
❑ T -33 (Variable Rate)
❑ T -33.1 (Variable Rate -- Negative Amortization)
❑ T35 (Revolving Credit/Future Advance)
❑ T -36 (Environmental Protection Lien) Paragraph b refers to the following state statute(s): TEX. HEALTH &
❑ T -39 (Balloon Mortgage)
❑ T -42 (Equity oan Mortgage) and subparagraph 2(f) of the Equity Loan Mortgage Endorsement set forth in Procedural Rule P- 44.C(2)
f ] is � is not added. The following subparagraph(s) of this endorsement are deleted:
❑ T -42.1 (Supplemental Coverage Equity Loan Mortgage) The following subparagraph(s) of this endorsement are deleted:
❑ T -43 (Texas Reverse Mortgage) The following subparagraph(s) of this endorsement are deleted:
® Section 13 of the Conditions of this policy, which relates to Arbitration, is hereby deleted.
Policy No.: 7422243 - 77199375
FORM T -2: Loan Policy of Title Insurance Page 1
LOAN POLICY OF TITLE INSURANCE
Issued by
Ticor Title Insurance Company
File No.: S31190 Policy No.: 7422243 - 77199375
EXCEPTIONS FROM COVERAGE
This policy does not insure against loss or damage (and the Company will not pay costs, attorneys' fees or expenses) that arise by
reason of the terms and conditions of leases and easements, if any, shown in Schedule A, and the following matters:
1. The following restrictive covenants of record itemized below, but the Company insures that any such restrictive covenants have
not been violated so as to affect, and that future violation thereof will not affect, the validity or priority of the Insured Mortgage
(insert specific recording data or delete this exception):
Plat: Volume 8562, Page 146; Volume 8930, Page 158, Official Records of Brazos County, Texas.
Restrictions: Volume 7959, Page 1, Official Records of Brazos County, Texas.
NOTE: TO THE EXTENT THAT THESE RESTRICTIONS VIOLATE 42 USC 3604 (c) BY INDICATING A
PREFERENCE, LUMTATION OR DISCREKINATION BASED ON RACE, COLOR, RELIGION, SEX,
HANDICAP, FAMILIAL STATUS OR NATIONAL ORIGIN, SUCH RESTRICTIONS ARE HEREBY OMITTED.
Any discrepancies, conflicts, or shortages in area or boundary lines, or any encroachments or protrusions, or any overlapping
of improvements.
Item 2 of Schedule B is hereby amended to read: "shortages in area ".
Standby fees, taxes and assessments by any taxing authority for the year 2009, and subsequent years; and subsequent taxes
and assessments by any taxing authority for prior years due to change in land usage or ownership, but not those taxes or
assessments for prior years because of an exemption granted to a previous owner of the property under Section IL 13, Texas
Tax Code, or because of improvements not assessed for a previous tax year.
® Item 3 of Schedule B is hereby amended to delete: "and subsequent taxes and assessments by any taxing authority for
prior years due to change in land usage or ownership,"
0 \� ® Item 3 of Schedule B is hereby to add the following: "Company insures that standby fees, taxes and assessments by any
� taxing authority for the year 2009 are not yet due and payable."
4. Liens and leases that affect the Title, but that are subordinate to the lien of the Insured Mortgage.
(Insert here all other specific exceptions as to superior liens, easements, outstanding mineral and royalty interests, etc.)
a. 25' building line along the lot lines adjoining Jones Road and Imperial Loop right -of -ways; 25' building line
along rear lot line; 30' Access Easement along the northwesterly lot line; 30' Access Easement along the
northwesterly lot line; 20' Public Utility Easements along the northeasterly and northwesterly lot lines; a
portion of a 20' Public Utility Easement along the southwesterly lot line; 16' Public Utility Easement along the
southeasterly lot line; 15' Public Utility Easement bisecting the lot running northeasterly -to- southwesterly; 5'
easement for anchors and guy wires necessary to help support overhead utility lines, extending 20' beyond
any utility easement, and any and all easements as reserved on Plat recorded in Volume 8562, Page 146, and
in the Replat recorded in Volume 8930, Page 158, and as set out in restrictions recorded in Volume 7959, Page
1, Official Records of Brazos County, Texas.
FORM T -2: Loan Policy of Title Insurance Page 2
Continuation of Schedule B
Policy No. 7422243 - 77199375
b. Easement executed by Steve Hudetts, et ux to City of Bryan, dated August 4,1960, recorded in Volume 208,
Page 461, Deed Records, and as shown on Plat recorded in Volume 8562, Page 146 and in the Replat recorded
in Volume 8930, Page 158, all of Brazos County, Texas.
C. Blanket Easement executed by Lucy Hudetts Walker, et vir to Brushy Water Supply, dated November Z8,
1966, recorded in Volume 259, Page 272, Deed Records of Brazos County, Texas; assigned to Wellborn
Special Utility District in Volume 6379, Page 287, Official Records of Brazos County, Texas.
d. Blanket Easement executed by Steve Hudetts, et ux to City of Bryan, dated April 21, 1937, recorded in
Volume 98, Page 299, Deed Records of Brazos County, Texas.
e. Easement executed by Lucy Hudetts Walker to City of Bryan, dated September 23, 1993, recorded in Volume
1935, Page 279, Official Records of Brazos County, Texas, and as shown on Plat recorded in Volume 8562,
Page 146 and in the Replat recorded in Volume 8930, Page 158, all of Brazos County, Texas.
L "Mineral reservation contained in Deed executed by Rosie Brown, et al to 60 -Jones Associates, Ltd., dated
November 10, 2005, recorded in Volume 7020, Page 244, Official Records of Brazos County, Texas.
g. *Oil, Gas and Mineral Lease executed by Lucy Hudetts Walker, et al to Union Pacific Resources Company,
dated June 28, 2000, recorded in Volume 3856, Page 164, Official Records of Brazos County, Texas.
*Title to said interest has not been investigated subsequent to the date of the aforementioned instrument.
h. Affidavit to the Public regarding Certification of Ou -site Sewage Facility (OSSF) Maintenance, executed by
James Jett, dated September 3, 2008, recorded in Volume 8791, Page 273, Official Records of Brazos County,
Texas.
i. Any and all liens arising by reason of unpaid bills or claims for work performed or materials furnished in
connection with improvements placed, or to be placed, upon the subject land. However, the Company does
insure the Insured against Loss, if any, sustained by the Insured under this Policy if such liens have been filed
with the County Clerk of Brazos County, Texas, prior to the date hereof
j. Pending disbursement of the full proceeds of the loan secured by the lien instrument set forth under Schedule
"A" hereof, this policy insures only to the extent of the amount actually disbursed, but increases as each
disbursement is made in good faith and without knowledge of any defects in, or objections to, the title up to
the face amount of the policy. Nothing contained in this paragraph shall be construed as limiting any
exception under Schedule 'B ", or any printed provision of this policy.
Countersigned
Lawyers Title Company of razos County
By
A thorized Countersignature
FORM T -2: Loan Policy of Title Insurance Page 3
IMPORTANT NOTICE
To obtain information or make a complaint:
You may call Ticor Title Insurance Company's
toll -free telephone number for information or to
make a complaint at
1. 800 - 4224303
You may also write to Ticor Title Insurance
Company at:
2001 Bryan Street, Suite 1700
Dallas, Texas 75201
You may contact the Texas Department of
Insurance to obtain information on companies,
coverages, rights or complaints at:
1- 800- 252 -3439
You may write the Texas Department of
Insurance:
P.O. Box 149104
Austin, TX 78714 -9104
Fax: (512) 475 -1771
Web: http: / /www.tdi.state.tx.us
E -mail: ConsumerProtection _( )tdi.state.tx.us
PREMIUM OR CLAIM DISPUTES:
Should you have a dispute concerning your
premium or about a claim you should contact
the company first. If the dispute is not
resolved, you may contact the Texas
Department of Insurance.
ATTACH THIS NOTICE TO YOUR POLICY:
This notice is for information only and does not
become a part or condition of the attached
document.
AVISO IMPORTANTE
Para obtener informaclon o para someter una
queja:
Usted puede Ilamar al numero de telefono
gratis Compania de Seguros de Tltulo de Ticor
Title pars informacion o pare someter una
queja al:
1.800. 4224303
Usted tambien puede escribir a Compania
Seguros de Titulo de Ticor Title
2001 Bryan Street, Suite 1700
Dallas, Texas 75201
Puede comunicarse con el Departamento de
Seguros de Texas para obtener informacion
acerca de companias, coberturas, derechos o
quejas al:
1- 800 -252 -3439
Puede escribir al Departamento de Seguros de
Texas:
P.O. Box 149104
Austin, TX 78714 -9104
Fax: (512) 475 -1771
Web: htto: / /www.tdi.state.tx.us
E -mail: ConsumerProtection @tdi.state.tx.us
DISPUTAS SOBRE PRIMAS O RECLAMOS:
Si tiene una disputa concerniente a su prima o '
a un reclamo, debe comunicarse con el la
compania) primero. SI no se resueive la
disputa, puede entonces comunicarse con el
deparamento (TDI).
UNA ESTE AVISO A SU POLIZA: Este aviso
es solo para proposito de informacion y no se
convierte en parte o condicion del documento
adjunto.
Texas Form B- 0023 -07 Important Notice
EXCLUSIONS FROM COVERAGE
The following matters are expressly excluded from the coverage of this policy and the Company will not pay loss or damage, costs, attorneys' fees or expenses that arise by reason
of:
1. (a) Any law, ordinance, permit, or governmental regulation (including those relating to building and zoning) restricting, regulating, prohibiting or relating to:
(i) the occupancy, use, or enjoyment of the Land,
(ii) the character, dimensions or location of any improvement erected on the Land;
(iii) subdivision of land; or
(iv) environmental protection;
or the effect of any violation ofthese laws, ordinances or governmental regulations. This Exclusion 1(a) does not modify or limit the coverage provided under Covered Risk 5.
(b) Any governmental police power. This Exclusion I(b) does not modify or limit the coverage provided under Covered Risk 6.
2. Rights of eminent domain. This Exclusion does not modify or limit the coverage provided under Covered Risk 7 or 8.
3. Defects, liens, encumbrances, adverse claims or other matters:
(a) created, suffered, assumed or agreed to by the Insured Claimant;
(b) not Known to the Company, not recorded in the Public Records at Date of Policy, but Known to the Insured Claimant and not disclosed in writing to the Company by the
Insured Claimant prior to the date the Insured Claimant became an Insured under this policy;
(c) resulting in no loss or damage to the Insured Claimant;
(d) attaching or created subsequent to Date of Policy (however, this does not modify or limit the coverage provided under Covered Risk 11, 13 or 14); or
(e) resulting in loss or damage that would not have been sustained if the Insured Claimant had paid value for the Insured Mortgage.
4, Unenforceability of the lien of the Insured Mortgage because of the inability or failure of an Insured to comply with applicable doing business laws of the state where the
Landis situated.
5. Invalidity or unenforceability in whole or In part of the lien of the Insured Mortgage that arises out of the transaction evidenced by the Insured Mortgage and is based upon usury
or any consumer credit protection or truth in lending law.
6. Any claim, by reason of the operation of federal bankruptcy, state insolvency, or similar creditors' rights laws, that the transaction creating the lien of the Insured Mortgage, is:
(a) a fraudulent conveyance or fraudulent transfer; or
(b) a preferential transfer for any reason not stated in Covered Risk 13(b) of this policy.
7. Any lien on the Title for real estate taxes or assessments imposed by governmental authority and created or attaching between Date of Policy and the date of recording of the
Insured Mortgage in the Public Records. This exclusion does not modify or limit the coverage provided under Covered Risk 11(b).
8. The refusal ofany person to purchase, lease or lend money on the estate or interest covered hereby in the land described in Schedule A because of Unmarketable Title.
CONDITIONS
1. DEFIN111ONOFTERMS.
(a) "Amount of Insurance ": the amount stated in Schedule A, as maybe increased
or decreased by endorsement to this policy, increased by Section 8(b), or
decreased by Section 10 of these Conditions.
(b) "Date of Policy ": The date designated as "Date of Policy" in Schedule A.
(c) "Entity": A corporation, partnership, trust, limited liability company or other
similar legal entity.
(d) "Indebtedness ": The obligation secured by the Insured Mortgage including
one evidenced by electronic means authorized by law, and if that obligation is
the payment of a debt, the Indebtedness is the sum of:
(i) the amount of the principal disbursed as of Date of Policy;
(ii) the amount of the principal disbursed subsequent to Date of Policy;
(iii) construction loan advances made subsequent to Date of Policy for the
purpose of financing in whole or in part the construction of an
improvement to the Land or related to the Land that the Insured was
and continued to be obligated to advance at Date of Policy and at the
date of the advance;
(iv) interest on the loan;
(v) prepayment premiums, exit fees and other similar fees or penalties al-
lowed by law;
(vi) expenses of foreclosure and any other costs of enforcement;
(vii) amounts advanced to assure compliance with laws or to protect the lien
or the priority of the lien of the Insured Mortgage before the acquisition
of the estate or interest in the Title;
(viii) amounts to pay taxes and insurance; and,
(ix) reasonable amounts"expended to prevent deterioration of improvements;
but reduced by the total of all payments and by any amount forgiven by
an Insured.
(e) "Insured ": the Insured named in Schedule A.
(i) The term "Insured" also includes:
(A) the owner of the Indebtedness and each successor in ownership of
the Indebtedness, whether the owner or successor owns the
Indebtedness for its own account or as a trustee or other
fiduciary, except a successor who is an obligor under the
provisions of Section 12(c) of these Conditions;
(B) if the Indebtedness is evidenced by a "transferable record,"
the person or Entity who has "control" of the 'transferable
record," as these terms are defined by applicable electronic
transactions law;
(C) successors to an Insured by dissolution, merger, consolidation
,distribution or reorganization;
(D) successors to an Insured by its conversion to another kind of
Entity;
(E) a grantee of an Insured under a deed delivered without payment of
actual valuable consideration conveying the Title:
(1) If the stock, shares, memberships, or other equity interests
of the grantee are wholly owned by the named Insured,
(2) If the grantee wholly owns the named Insured, or
(3) If the grantee is wholly -owned by an affiliated Entity
of the named Insured, provided the affiliated Entity and the
named Insured are both wholly -owned by the same person
or Entity;
(F) any government agency or instrumentality that is an insurer or
guarantor under an insurance contract or guaranty insuring or
guaranteeing the Indebtedness secured by the Insured Mortgage,
or any part of it, whether named as an Insured or not
(ii) With regard to (A), (B), (C), (D) and (E) reserving, however, all rights
and defenses as to any successor that the Company would have had
against any predecessor Insured, unless the successor acquired the
Indebtedness as a purchaser for value without Knowledge of the
asserted defect, lien, encumbrance or other matter insured against by this
policy.
(f) "Insured Claimant": an Insured claiming loss or damage.
(g) "Insured Mortgage": the Mortgage described in paragraph 4 of Schedule A,
(h) "Knowledge' or "Known': actual knowledge, not constructive knowledge or
notice that may be imputed to an Insured by reason of the Public Records or
any other records that impart constructive notice of matters affecting the
Title.
(i) "Land ": the land described in Schedule A, and affixed improvements that by
law constitute real property. The term "Land" does not include any property
beyond the lines of the area described in Schedule A, not any right, title,
interest, estate or easement in abutting streets, roads, avenues, alleys, lanes,
ways or waterways, but this does not modify or limit the extent that it right of
access to and from the Land is insured by this policy.
(j) "Mortgage ": mortgage, deed of trust, trust deed, or other security instrument,
including one evidenced by electronic means authorized by law.
(k) "Public Records ": records established under state statutes at Date of Policy
for the purpose of imparting constructive notice of matters relating to real
property to purchasers for value and without Knowledge. With respect to
Covered Risk 5(d), "Public Records" shall also include environmental
protection liens filed in the records of the clerk of the United States District
Court for the district where the Land is located.
(1) "Title ": the estate or interest described in Schedule A.
(m) "Unmarketable Title ": Title affected by an alleged or apparent matter that would
permit a prospective purchaser or lessee of the Title or lender on the Title or a
prospective purchaser of the Insured Mortgage to be released from the
obligation to purchase, lease or lend if there is a contractual condition
requiring the delivery of marketable title.
CONTINUATION OF INSURANCE.
The coverage of this' policy shall continue in force as of Date of Policy in favor of
an Insured after acquisition of the Title by an Insured or after conveyance by an
Insured, but only so long as the Insured retains an estate or interest in the Land, or
holds an obligation secured by a purchase money Mortgage given by a purchaser
from the Insured, or only so long as the Insured shall have liability by reason of
warranties in any transfer or conveyance of the Title. This policy shall not continue
in force in favor of any purchaser from the Insured of either (i) an estate or interest in
the Land, or (ii) an obligation secured by a purchase money Mortgage given to the
Insured.
NOTICE OF CLAIM TO BE GIVEN BY INSURED CLAIMANT.
The Insured shall notify the Company promptly in writing (i) in case of any
litigation as set forth in Section 5(a) below, or (ii) in case Knowledge shall come
to an Insured of any claim of title or interest that is adverse to the Title or the lien
7422243 (4/08) Loan Policy of Title Insurance (T -2) (05101/08)
4.
6.
of the Insured Mortgage, as insured, and that might cause loss or damage for
which the Company may be liable by virtue of this policy. If the Company is
prejudiced by the failure of the Insured Claimant to provide prompt notice, the
Company's liability to the Insured Claimant under the policy shall be reduced to
the extent of the prejudice. Subject to the provisions of this policy, upon
acquisition of all or any part of the Title pursuant to the provisions of Section 2
of these Conditions, when, after the Date of the Policy, the Insured notifies the
Company as required herein of a lien, encumbrance, adverse claim or other defect
in Title insured by this policy that is not excluded or excepted from the coverage
of this policy, the Company shall promptly investigate the charge to determine
whether the lien, encumbrance, ad- verse claim or defect or other matter is valid
and not barred by law or statute. The Company shall notify the Insured in writing,
within a reasonable time, of its determination as to the validity or invalidity of the
Insured's claim or charge under the policy. If the Company concludes that the
lien, encumbrance, adverse claim or defect is not covered by this policy, or was
otherwise addressed in the closing of the transaction in connection with which this
policy was issued, the Company shall specifically advise the Insured ofthe reasons
for its determination. If the Company concludes that the lien, encumbrance,
adverse claim or defect is valid, the Company shall take one of the following
actions: (i) institute the necessary proceedings to clear the lien, encumbrance,
adverse claim or defect from the Title as insured; (ii) indemnify the Insured as
provided in this policy; (iii) upon payment of appropriate premium and charges
therefor, issue to the Insured Claimant or to a subsequent owner, mortgagee or
holder of the estate or interest in the Land insured by this policy, a policy of title
insurance without exception for the lien, encumbrance, ad- verse claim or defect,
said policy to be in an amount equal to the current value of the Land or, if a
mortgagee policy, the amount of the loan; (iv) indemnify another title insurance
company in connection with its issuance of a policy(ies) of title insurance
without exception for the lien, encumbrance, adverse claim or defect; (v) secure a
release or other document discharging the lien, encumbrance, adverse claim or defect,
or (A) undertake a combination of (i) through (v) herein.
PROOF OF LOSS.
In the event the Company is unable to determine the amount of loss or damage, the
Company may, at its option, require as a condition of payment that the Insured
Claimant furnish a signed proof of loss. The proof of loss must describe the defect,
lien, encumbrance or other matter insured against by this policy that constitutes the
basis of loss or damage and shall state, to the extent possible, the basis of
calculating the amount of the loss or damage.
DEFENSE AND PROSECUTION OFACTIONS.
(a) Upon written request by the Insured, and subject to the options contained in
Sections 3 and 7 of these Conditions, the Company, at its own cost and with-
out unreasonable delay, shall provide for the defense of an Insured in
litigation in which any third party asserts a claim covered by this policy
adverse to the Insured. This obligation is limited to only those stated causes
of action alleging matters insured against by this policy. The Company shall
have the right to select counsel of its choice (subject to the right of the
Insured to object for reasonable cause) to represent the Insured as to those
stated causes of action. It shall not be liable for and will not pay the fees
of any other counsel. The Company will not pay any fees, costs or expenses
incurred by the Insured in the defense of those causes of action that allege
matters not insured against by this policy.
(b) The Company shall have the right, in addition to the options contained in
Sections 3 and 7, at its own cost, to institute and prosecute any action or
proceeding or to do any other act that in its opinion may be necessary or
desirable to establish the Title or the lien of the Insured Mortgage, as Insured, or
to prevent or reduce loss or damage to the Insured. The Company may take any
appropriate action under the terms of this policy, whether or not it shall be liable
to the Insured. The exercise of these rights shall not be an admission of liability
or waiver of any provision of this policy. If the Company exercises its rights
under this subsection, it must do so diligently,
(c) Whenever the Company brings an action or asserts a defense as required or
permitted by this policy, the Company may pursue the litigation to a final
determination by a court of competent jurisdiction and it expressly reserves
the right, in its sole discretion, to appeal from any adverse judgment or order.
When the Company has reasonable grounds to dispute coverage under this
policy, the Company may reserve its rights to pay the claim and the costs of
defense and seek reimbursement from the Insured for all amounts paid for
which there was no coverage.
DUTY OF INSURED CLAIMANT TO COOPERATE.
(a) In all cases where this policy permits or requires the Company to prosecute or
provide for the defense of any action or proceeding and any appeals, the
Insured shall secure to the Company the right to so prosecute or provide
defense in the action or proceeding, including the right to use, at its option,
the name of the Insured for this purpose. Whenever requested by the
Company, the Insured, at the Company's expense, shall give the Company
all reason- able aid (i) in securing evidence, obtaining witnesses, prosecuting
or defending the action or proceeding, or effecting settlement, and (ii) in
any other lawful act that in the opinion of the Company may be necessary or
desirable to establish the Title, the lien of the Insured Mortgage, or any other
matter as insured. If the Company is prejudiced by the failure of the Insured
7422243 (4108)
to furnish the required cooperation, the Company's obligations to the Insured
under the policy shall terminate, including any liability or obligation to
defend, prosecute, or continue any litigation, with regard to the matter or
matters requiring such cooperation.
(b) The Company may reasonably require the Insured Claimant to submit to
examination under oath by any authorized representative of the Company
and to produce for examination, inspection and copying, at such reasonable
titres and places as may be designated by the authorized representative of the
Company, all records, in whatever medium maintained, including books,
ledgers, checks, memoranda, correspondence, reports, e- mails, disks, tapes,
and videos whether bearing a date before or after Date of Policy, that
reasonably pertain to the loss or damage. Further, if requested by any
authorized representative of the Company, the Insured Claimant shall grant
its permission, in writing, for any authorized representative of the Company
to examine, inspect and copy all of these records in the custody or control of
a third party that reasonably pertain to the loss or damage. All information
designated as confidential by the Insured Claimant provided to the
Company pursuant to this Section shall not be disclosed to others unless, in
the reasonable judgment of the Company, it is necessary in the administration
of the claim. Failure of the Insured Claimant to submit for examination
under oath, produce any reasonably requested information or grant
permission to secure reason- ably necessary information from third parties
as required in this subsection, unless prohibited by law or governments]
regulation, shall terminate any liability of the Company under this policy as
to that claim.
(c) If the Insured demands that the Company accept a settlement offer that is not
greater than the Amount of Insurance or if the Insured expressly agrees that a
settlement offer should be accepted, the Company has a right to be
reimbursed if it has timely asserted its reservation of rights and notified the
Insured that it intends to seek reimbursement if it pays to settle or defend
a claim that is not covered by the policy.
OPTIONS TO PAY OR OTHERWISE SETTLE CLAIMS; TERMINATION
OF LIABILITY
In case of a claim under this policy, the Company shall have the following
additional options:
(a) To Pay or Tender Payment of the Amount of Insurance or to Purchase the
Indebtedness.
(i) to pay or tender payment of the Amount of Insurance under this policy
together with any costs, attorneys' fees and expenses incurred by the
Insured Claimant that were authorized by the Company up to the time
of payment or tender of payment and that the Company is obligated to
pay; or
(ii) to purchase the Indebtedness for the amount of the Indebtedness on the
date of purchase, together with any costs, attorneys' fees and expenses
incurred by the Insured Claimant that were authorized by the Company
up to the time of purchase and that the Company is obligated to pay.
When the Company purchases the Indebtedness, the Insured shall
transfer, assign, and convey to the Company the Indebtedness and the
Insured Mortgage, together with any collateral security,
Upon the exercise by the Company of either of the options provided for in
subsections (a)(i) or (ii), all liability and obligations of the Company to the
Insured under this policy, other than to make the payment required in those
subsections, shall terminate, including any liability or obligation to defend,
prosecute, or continue any litigation.
(b) To Pay or Otherwise Settle With Parties Other than the Insured or With the
Insured Claimant.
(i) to pay or otherwise settle with other parties for or in the name of an
Insured Claimant any claim insured against under this policy. In
addition, the Company will pay any costs, attorneys' fees and expenses
incurred by the Insured Claimant that were authorized by the
Company up to the time of payment and that the Company is obligated
to pay; or
(ii) to pay or otherwise settle with the Insured Claimant the loss or damage
provided for under this policy, together with any costs, attorneys' fees
and expenses incurred by the Insured Claimant that were authorized by
the Company up to the time of payment and that the Company is
obligated to pay. Upon the exercise by the Company of either of the
options provided for in subsections (b)(i) or (ii), the Company's
obligations to the Insured under this policy for the claimed loss or
damage, other than the payments required to be made, shall terminate,
including any liability or obligation to defend, prosecute or continue
any litigation.
S. DETERMINATION AND EXTENT OF LIABILITY.
This policy is a contract of indemnity against actual monetary loss or damage
sustained or incurred by the Insured Claimant who has suffered loss or damage
by reason of matters insured against by this policy.
(a) The extent of liability of the Company for loss or damage under this
policy shall not exceed the least of:
(I) the Amount of Insurance;
(ii) the Indebtedness;
Loan Policy of Title Insurance (T -2) (05101108)
9.
10,
11.
12.
(iii) the difference between the value of the Title as insured and the value
of the Title subject to the risk insured against by this policy; or
(iv) if a government agency or instrumentality is the Insured Claimant, the
amount it paid in the acquisition of the Title or the Insured Mortgage in
satisfaction of its insurance contract or guaranty.
(b) If the Company pursues its rights under Section 3 or 5 and is unsuccessful in
establishing the Title or the lien oftbe Insured Mortgage, as insured,
(i) the Amount of Insurance shall be increased by 10 %, and
(ii) the Insured Claimant shall have the right to have the loss or damage
determined either as of the date the claim was made by the Insured Claim-
ant or as of the date it is settled and paid.
(c) In the event the Insured has acquired the Title in the manner described in
Section 2 of these Conditions or has conveyed the Title, then the extent of
liability of the Company shall continue as set forth in Section 8(a) of these
Conditions.
(d) In addition to the extent of liability under (a), (b) and (c), the Company will
also pay those costs, attorneys' fees and expenses incurred in accordance with
Sections 5 and 7 of these Conditions.
LIMITATION OF LIABILITY.
(a) If the Company establishes the Title, or removes the alleged defect, lien or
encumbrance, or cures the lank of a right of access to or from die Land, or
establishes the lien of the Insured Mortgage, all as insured, or takes action in
accordance with Section 3 or 7, in a reasonably diligent manner by any method,
including litigation and the completion of any appeals, it shall have fully per-
formed its obligations with respect to that matter and shall not be liable for
any loss or damage caused to the Insured.
(b) In the event of any litigation, including litigation by the Company or with
the Company's consent, the Company shall have no liability for loss or
damage until there has been a final determination by a court of competent
jurisdiction, and disposition of all appeals, adverse to the Title or to the lien
of the Insured Mortgage, as insured.
(c) The Company shall not be liable for loss or damage to the Insured for liability
voluntarily assumed by the Insured in settling any claim or suit without
the prior written consent of the Company.
REDUCTION OF INSURANCE; REDUCTION OR TERMINATION OF
LIABII,TTY.
(a) All payments under this policy, except payments made for costs, attorneys'
fees and expenses, shall reduce the Amount of Insurance by the amount of the
payment, However, any payments made prior to the acquisition of Title
as provided in Section 2 of these Conditions shall not reduce the Amount
of Insurance afforded under this policy except to the extent that the
payments reduce the Indebtedness.
(b) The voluntary satisfaction or release of the Insured Mortgage shall terminate
all liability of the Company except as provided in Section 2 of these
Conditions.
PAYMENT OF LOSS.
When liability and the extent of loss or damage have been definitely fixed in
accordance with these Conditions, the payment shall be made within 30 days.
RIGHTS OF RECOVERY UPON PAYMENT OR SETTLEMENT.
(a) The Company's Right to Recover.
Whenever the Company shall have settled and paid a claim under this
policy, it shall be subrogated and entitled to the rights of the Insured
Claimant in the Title or Insured Mortgage and all other rights and remedies
in respect to the claim that the Insured Claimant has against any person or
property, to the extent of the amount of any loss, costs, attorneys' fees and
expenses paid by the Company. If requested by the Company, the Insured
Claimant shall execute documents to evidence the transfer to the Company
of these rights and remedies. The Insured Claimant shall permit the
Company to sue, compromise or settle in the name of the Insured Claimant
and to use the name of the Insured Claimant in any transaction or
litigation involving these rights and remedies. If a payment on account of
a claim does not fully cover the loss of the Insured Claimant, the
Company shall defer the exercise of its right to recover until after the
Insured Claimant shall have recovered its loss.
(b) The Insured's Rights and Limitations.
(i) The owner of the Indebtedness may release or substitute the personal
liability of any debtor or guarantor, extend or otherwise modify the terms
of payment, release a portion of the Title from the lien of the Insured
Mortgage, or release any collateral security for the Indebtedness, if it
does not affect the enforceability or priority of the lien of the Insured
Mortgage.
(ii) If the Insured exercises a right provided in (bxi), but has Knowledge of
any claim adverse to the Title or the lien of the Insured Mortgage
insured against by this policy, the Company shall be required to pay
only that part of any losses insured against by this policy that shall
exceed the amount, if any, lost to the Company by reason of the
impairment by the Insured Claimant of the Company's right of
subrogation.
(c) The Company's Rights Against Non - insured Obligors.
The Company's right of subrogation includes the Insured's rights against
non - insured obligors including the rights of the Insured to indemnities,
guaranties, other policies of insurance or bonds, notwithstanding any terms
or conditions contained in those instruments that address subrogation rights.
The Company's right of subrogation shall not be avoided by acquisition of
the Insured Mortgage by an obligor (except an obligor described in Section
I(e)(i)(F) of these Conditions) who ac- quires the Insured Mortgage as a
result of an indemnity, guarantee, other policy of insurance, or bond and the
obligor will not be an Insured under this policy.
13. ARBITRATION.
Either the Company or the Insured may demand that the claim or controversy shall
be submitted to arbitration pursuant to the Title Insurance Arbitration Rules of
the American Land Tide Association ( "Rules "). Except as provided in the Rules,
there shall be no joinder or consolidation with claims or controversies of other
persons. Arbitrable matters may include, but are not limited to, any controversy
or claim between the Company and the Insured arising out of or relating to this
policy, any service in connection with its issuance or the breach of a policy
provision, or to any other controversy or claim arising out of the transaction
giving rise to this policy. All arbitrable matters when the Amount of Insurance is
$2,000,000 or less shall be arbitrated at the option of either the Company or the
Insured, unless the Insured is an individual person (as distinguished from an
Entity). All arbitrable matters when the Amount of Insurance is in excess of
$2,000,000 shall be arbitrated only when agreed to by both the Company and the
Insured. Arbitration pursuant to this policy and under the Rules shall be binding
upon the parties. Judgment upon the award rendered by the Arbitrator(s) may be
entered in any court of competent jurisdiction.
14. LIABILrrY LIMITED TO THIS POLICY; POLICY ENTIRE CONTRACT.
(a) This policy together with all endorsements, if any, attached to it by the
Company is the entire policy and contract between the Insured and the
Company. In interpreting any provision of this policy, this policy shall be
construed as a whole.
(b) Any claim of loss or damage that arises out of the status of the Title or lien of
the Insured Mortgage or by any action asserting such claim, shall be
restricted to this policy.
(c) Any amendment of or endorsement to this policy must be in writing and
authenticated by an authorized person, or expressly incorporated by
Schedule A of this policy.
(d) Each endorsement to this policy issued at any time is made a part of this
policy and is subject to all of its terms and provisions. Except as the
endorsement expressly states, it does not (i) modify any of the terms and
provisions of the policy, (ii) modify any prior endorsement, (iii) extend the
Date of Policy or (iv) increase the Amount of Insurance. Each Commitment,
endorsement or other form, or provision in the Schedules to this policy that
refers to a term defined in Section I of the Conditions shall be deemed to
refer to the term regardless of whether the term is capitilized in the
Commitment, endorsement or other form, or Schedule.
Each Commitment, endorsement or other form, or provision in the Schedules
that refers to the Conditions and Stipulations shall be deemed to refer to the
Conditions of this policy,
15. SEVERABILITY.
In the event any provision of this policy, in whole or in part, is held invalid or
unenforceable under applicable law, the policy shall be deemed not to include that
provision or such part held to be invalid and all other provisions shall remain in full
force and effect.
16. CHOICE OF LAW, FORUM.
(a) Choice of Law: The Insured acknowledges the Company has underwritten
the risks covered by this policy and determined the premium charged therefor
in reliance upon the law affecting interests in real property and applicable to
the interpretation, rights, remedies or enforcement of policies of title
insurance of the jurisdiction where the Land is located. Therefore, the court
or an arbitrator shall apply the law of the jurisdiction where the Land is
located to determine the validity of claims against the Title or the lien of the
Insured Mortgage that are adverse to the Insured, and in interpreting and
enforcing the terms of this policy, In neither case shall the court or
arbitrator apply its conflicts of laws principles to determine the applicable law,
(b) Choice of Forum: Any litigation or other proceeding brought by the Insured
against the Company must be filed only in a state or federal court within the
United States of America or its territories having appropriate jurisdiction.
17. NOTICES, WHERE SENT.
Any notice of claim and any other notice or statement in writing required to be
given the Company under this Policy must be given to the Company at National
Claims Administration, P.O. Box 45023, Jacksonville, Florida 32232 -5023.
7422243 (4/08) Loan Policy of Title Insurance (T-2) (05/01/08)