DEED OF TRUST, ASSIGNMENT OF RENTS AND LEASES, SECURITY AGREEMENT AND FIXTURE FILING
Exhibit
4.30
NOTICE
OF CONFIDENTIALITY RIGHTS: IF YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR STRIKE
ANY OF THE FOLLOWING INFORMATION FROM THIS INSTRUMENT BEFORE IT IS FILED FOR
RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR DRIVER'S
LICENSE NUMBER.
ASSIGNMENT
OF RENTS AND LEASES,
SECURITY AGREEMENT AND
FIXTURE FILING
THIS DEED
OF TRUST, ASSIGNMENT OF RENTS AND LEASES, SECURITY AGREEMENT AND FIXTURE FILING
("Security
Instrument") is
made as of this 16th day of
July, 2008 by Valcent Manufacturing, Ltd., a Texas limited partnership, as
Grantor ("Borrower"), to Xxxxxxx X. Xxxxxxx,
Trustee ("Trustee"), for the benefit of
Platinum Long Term Growth VI, LLC, a Delaware limited liability company, as
Agent (for the benefit of the Lenders (as defined below)), as Beneficiary
(together with its successors and assigns, "Agent").
BACKGROUND
Pursuant
to the Note and Warrant Purchase Agreement, dated as of July 16, 2008 (the "Note
Purchase Agreement"), between Valcent
Products, Inc. ("Valcent"), as issuer of the Note
(defined below), and the Agent and other purchasers named therein (the Agent and
the purchasers are collectively referred to as the "Lenders"), the Lenders are making a
loan to Valcent in the maximum principal amount of $2,428,166 (the "Valcent
Loan"). The
obligations of Valcent to the Lenders will be evidenced by one or more
promissory notes of even date herewith in the original aggregate principal
amount of the Valcent Loan and are referred to herein collectively as the "Note". Borrower, pursuant to
the Guaranty, dated on or about the date hereof (the "Guaranty"), has unconditionally
guaranteed the obligations of Valcent under the Note and the other Transaction
Documents (as defined in the Note Purchase Agreement). The obligations of the
Borrower under the Guaranty are referred to herein as the "Guaranteed Obligations". Borrower desires to
secure payment and performance of Borrower's Guaranteed Obligations in respect
of the Guaranty, the Note and the Valcent Loan by granting to Agent for itself
and for the benefit of the Lenders, the security described in this Security
Instrument. The Borrower is a subsidiary of Valcent and the Lenders would not
make the Valcent Loan unless the Borrower executed and delivered this Security
Instrument to the Agent for the benefit of the Lenders.
NOW,
THEREFORE, to induce Lenders to make the Valcent Loan to Valcent, and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound hereby, Borrower agrees as
follows:
ARTICLE
1
DEFINED
TERMS
1.01
Defined Terms.
Capitalized terms used in this Security Instrument and not specifically defined
in this Security Instrument have the meaning provided in the Note Purchase
Agreement.
ARTICLE
2
GRANT OF
SECURITY
2.01
Property
Mortgaged. Borrower does hereby irrevocably deed, mortgage, grant,
bargain, sell, assign, pledge, warrant, transfer and convey to Trustee, and to
its successors and assigns, as trustee, in trust for the benefit of Agent, as
security for the Guaranty and the Obligations (defined herein) and for the
benefit of the Lenders, with power of sale, the following property, rights,
interests and estates, now owned or hereafter acquired by Borrower and whether
now existing or hereafter arising (collectively, "Property"):
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(a) Land. The land
described in Exhibit
A attached hereto and made a part hereof, together with all estates and
development rights now existing or hereafter acquired for use in connection
therewith ("Land");
(b) Additional Land. All
land that, from time to time, by supplemental deed or otherwise, may be
expressly made subject to this Security Instrument, and all estates and
development rights hereafter acquired by Borrower for use in connection with
such land (also, the "Land");
(c) Improvements. All
buildings, structures, improvements and fixtures now or hereafter erected or
located on the Land ("Improvements");
(d) Easements. All
easements, rights-of-way or use, rights, strips and gores of land, streets,
ways, alleys, passages, sewer rights, oil, gas, and minerals, and rights thereto
or therein, water, water courses, water rights and powers, air rights and
development rights, and all estates, rights, titles, interests, privileges,
liberties, servitudes, tenements, hereditaments and appurtenances of any nature
whatsoever, in any way now or hereafter belonging, relating or pertaining to the
Property and the reversion and reversions, remainder and remainders, and all
land lying in the bed of any street, road or avenue, opened or proposed, in
front of or adjoining the Land, to the center line thereof, and all the estates,
rights, titles, interests, dower and rights of dower, curtesy and rights of
curtesy, property, possession, claim and demand whatsoever, both at law and in
equity, of Borrower of, in and to the Property and every part and parcel
thereof, with all appurtenances thereto;
(e) Fixtures and Personal
Property. All machinery, equipment, fixtures (including, without
limitation, all heating, air conditioning, plumbing, lighting, communications
and elevator fixtures), furnishing, building supplies and materials, and all
other personal property of every kind and nature whatsoever owned by Borrower
(or in which Borrower has or hereafter acquires an interest) and now or
hereafter located upon, or appurtenant to, the Property or used or useable in
the present or future operation and occupancy of the Property, along with all
accessions, replacements, betterments, or substitutions of all or any portion
thereof (collectively, "Personal
Property");
(f) Leases and Rents. All
leases, subleases, licenses and other agreements granting others the right to
use or occupy all or any part of the Property together with all restatements,
renewals, extensions, amendments and supplements thereto ("Leases"), now existing or hereafter
entered into, and whether entered before or after the filing by or against
Borrower of any petition for relief under the Bankruptcy Code, and all of
Borrower's right, title and interest in the Leases, including, without
limitation (i) all guarantees, letters of credit and any other credit support
given by any tenant or guarantor in connection therewith ("Lease
Guaranties"), (ii) all cash, notes, or
security deposited thereunder to secure the performance by the tenants of their
obligations thereunder ("Tenant
Security Deposits"),
(iii) all claims and rights to the payment of damages and other claims
arising from any rejection by a tenant of its Lease under the Bankruptcy Code
("Bankruptcy
Claims"), (iv) all of the
landlord's rights in casualty or condemnation proceeds of a tenant in respect of
the leased premises ("Tenant
Claims"), (v) all
rents, ground rents, additional rents, revenues, termination and similar
payments, issues and profits (including all oil and gas or other mineral
royalties and bonuses) from the Property (collectively with the Lease
Guaranties, Tenant Security Deposits, Bankruptcy Claims and Tenant Claims, "Rents"), whether paid or accruing
before or after the filing by or against Borrower of any petition for relief
under the Bankruptcy Code, (vi) all proceeds or streams of payment from the sale
or other disposition of the Leases or disposition of any Rents, and (vii) the
right to receive and apply the Rents to the payment of the Debt and to do all
other things which Borrower or a lessor is or may become entitled to do under
the Leases or with respect to the Rents;
(g) Condemnation Awards.
All awards or payments, including interest thereon, which may heretofore and
hereafter be made with respect to the Property, whether from the exercise of the
right of eminent domain (including, without limitation, any transfer made in
lieu of or in anticipation of the exercise of the right), or for a change of
grade, or for any other injury to or decrease in the value of the
Property;
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(h) Insurance Proceeds.
All proceeds of, and any unearned premiums on, any insurance policies covering
the Property, including, without limitation, the exclusive right to receive and
apply the proceeds of any claim awards, judgments, or settlements made in lieu
thereof, for damage to the Property;
(i)
Tax
Certiorari. All refunds, abatements, rebates or credits in connection
with a reduction in Taxes, including, without limitation, rebates as a result of
tax certiorari or any other applications or proceedings for
reduction;
(j)
Operating
Agreements. All contracts (including, without limitation, service,
supply, maintenance and construction contracts), registrations, franchise
agreements, permits, licenses (including, without limitation, liquor licenses,
if any, to the fullest extent assignable by Borrower), plans and specifications,
and other agreements, now or hereafter entered into, and all rights therein and
thereto, respecting or pertaining to the use, occupation, construction,
management or operation of the Property, or respecting any business or activity
conducted by Borrower from the Property, and all right, title and interest of
Borrower therein and thereunder, including, without limitation, the right, while
an Event of Default remains uncured, to receive and collect any sums payable to
Borrower thereunder (collectively, "Operating
Agreements");
(k)
Rate Cap
Agreements. All interest rate cap agreements, swaps or other interest
hedging agreements now or hereafter executed with respect to the Guaranteed
Obligations or to guard against interest rate exposure in connection with the
Guaranteed Obligations, if any;
(1)
Intangibles.
All accounts, escrows, chattel paper, claims, deposits, trade names, trademarks,
service marks, logos, copyrights, books and records, goodwill, and all other
general intangibles relating to or used in connection with the operation of the
Property;
(m) Accounts. All
reserves, escrows and deposit accounts maintained by Borrower with respect to
the Property or in which Borrower has any interest (including, without
limitation, all reserves, escrows, and deposit accounts), together with all
cash, checks, drafts, certificates, securities, investment property, financial
assets, instruments and other property from time to time held therein, and all
proceeds, products, distributions, dividends or substitutions thereon or
thereof;
(n) Rights to Conduct Legal
Actions. The right, in the name and on behalf of Borrower, to commence
any action or proceeding to protect the interest of Agent in the Property, and
to appear in and defend any action or proceeding brought with respect to the
Property;
(o) Proceeds. All
proceeds and profits arising from the conversion, voluntary or involuntary, of
any of the foregoing into cash (whether made in one payment or a stream of
payments) and any liquidation claims applicable thereto; and
(p) Rights. Any and all
other rights of Borrower in and to the items set forth in the foregoing subsections (a)
through (o),
inclusive, and in and to the Property.
TO HAVE
AND TO HOLD the above granted and described Property unto Trustee, and its
successors and assigns, in trust, with power of sale in accordance with the
terms and conditions hereof, for the use and benefit of the Agent, for the
benefit of the Lenders, and the successors and assigns of the Agent, forever;
subject, however, to Section 2.05
below.
2.02
Grant of Security
Interest; Security Agreement. Borrower hereby grants to Agent, as
security for the Guaranteed Obligations and for the benefit of the Lenders, a
security interest in the Property to the fullest extent that the Property now or
hereafter may be subject to a security interest under the UCC. Borrower intends
for this Security Instrument to be a "security instrument" within the meaning of
the UCC. Borrower hereby irrevocably authorizes Agent to prepare, execute and
file all initial financing statements, and any restatements, extensions,
continuations, renewals or amendments thereof, in such form as Agent may require
to perfect or continue the perfection of this security interest or other
statutory liens held by Agent. Unless prohibited by applicable law, Borrower
agrees to pay all reasonable expenses incident to the preparation, execution,
filing and/or recording of any of the foregoing. With respect to any of the
Property in which a security interest is not perfected by the filing of a
financing statement, Borrower consents and agrees to undertake, and to cooperate
fully with Agent, to perfect the security interest hereby granted to Agent in
the Property. Without limiting the foregoing, if and to the extent any of the
Property is held by a bailee for the benefit of Borrower, Borrower shall
promptly notify Agent thereof and, if required by Agent promptly obtain an
acknowledgment from such bailee that is satisfactory to Agent and confirms that
such bailee holds the Property for the benefit of Agent as secured party and
shall only act upon instructions from Agent with respect to the
Property.
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2.03
Assignment of Leases
and Rents.
(a) Rights Granted to
Agent. Borrower hereby absolutely and unconditionally assigns to Agent
all of Borrower's right, title and interest in and to all current and future
Leases and Rents. Borrower hereby declares its intention to establish a present,
absolute and irrevocable transfer and assignment to Agent of all Rents and
Leases and to authorize and empower Agent to collect and receive all Rents and
exercise all of Borrower's rights under the Leases (including, without
limitation, the right to modify, extend or terminate any Lease) without any
further action by Borrower; it being intended that this assignment is effective
immediately and not an assignment made for security only, notwithstanding any
provision hereof to the contrary. For purposes of giving effect to this
assignment of Rents and Leases and for no other purpose, Rents and Leases shall
not be deemed to be part of the "Property" as that term is defined in Section 2.01 of this
Security Instrument. If, however, this assignment of Rents and Leases is not
enforceable by its terms under the laws of the State where the Property is
located, then Rents and Leases shall be included as part of the Property and it
is Borrower's intention that, in this circumstance, this Security Instrument
creates and perfects a lien of the Rents and Leases in favor of Agent, which
lien shall be effective as of the date of this Security Instrument.
(b) License to Borrower;
Revocation. Nevertheless, subject to the terms of this Security
Instrument and the Note Purchase Agreement, Agent grants to Borrower a revocable
license (i) to manage the leasing activities of the Property, and (ii) to
exercise all of Borrower's rights under the Leases. So long as no Event of
Default exists, the Rents remaining after application pursuant to the preceding
sentence may be retained by Borrower free and clear of, and released from,
Agent's rights with respect to Rents under this Security Instrument. From and
after the occurrence of an Event of Default, and without the necessity of notice
or prior demand or Agent's entering upon and taking and maintaining control of
the Property (whether directly or through a receiver), the license granted to
Borrower by this Section shall terminate automatically, and Agent shall be
entitled to receive and collect the Rents as they become due and payable and
exercise all of Borrower's rights or the rights of lessor under the Leases and
with respect to the Rent. Agent's right to revoke the license granted to
Borrower is in addition to all other rights and remedies available to Agent
following an Event of Default.
(c) No Obligations Assumed by
Agent. Neither the granting of this assignment to Agent, nor Agent's
exercise of any rights or remedies with respect to this assignment, shall be
construed (i) to make Agent a "mortgagee in possession" of the Property in the
absence of Agent itself taking actual possession of the Property or (ii) to
obligate Agent to take any action with respect to the Leases, including, without
limitation, the performance of any obligation to be performed on the part of
Borrower under any of the Leases, which shall remain exclusively with Borrower.
Without limiting the foregoing, this assignment shall not operate to place on
Agent any obligation or liability for: (i) the control, care, management or
repair of the Property; (ii) for carrying out any of the terms and conditions of
the Leases; (iii) any waste committed on the Property by tenants or any other
parties; (iv) any dangerous or defective
condition of the Property (including, without limitation, the presence of any
Hazardous Materials as defined in the Environmental Indemnity); or (v) any
negligence in the management, upkeep, repair or control of the Property
resulting in injury or death to any tenant or any other party or any loss of
personal property. Borrower, for itself and any party claiming under or through
Borrower, hereby releases and discharges Agent from any such liability to the
fullest extent permitted by law. Agent shall be obligated to account only for
Rents actually collected or received by Agent, and Agent shall not be liable for
any loss sustained by Borrower resulting from Agent's failure to lease the
Property after an Event of Default.
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2.04 Fixture
Filing. Certain of the Property is or will become "fixtures" (as that
term is defined in the UCC)
On the
Land, and this Security Instrument upon being filed for record in the real
estate records of the city or county wherein such fixtures are situated, shall
operate also as a financing statement filed as a fixture filing in accordance
with the applicable provisions of the UCC upon such of the Property that is or
will become fixtures.
2.05
Pledge of Monies
Held. Borrower hereby pledges to Agent, as security for the Obligations
and for the benefit of the Lenders, all money now or hereafter held by Agent in
escrow or reserve or on deposit pursuant to the terms hereof or pursuant to any
Transaction Document, until expended or applied as provided in this Security
Instrument or such other Transaction Document.
2.06
Release of
Security. The grants, deed of trust, mortgage, liens, security interests,
assignments, pledges and transfers by this Security Instrument are subject to
the express condition that, if Borrower pays to Lenders the Debt at the time and
in the manner provided in the Transaction Documents and performs all Obligations
when and as required by the Guaranty and each other Transaction Documents, Agent
shall release the Property from the grants, deed of trust, mortgage, liens,
security interests, assignments, pledges and transfers created by this Security
Instrument and reconvey the Property to Borrower. Agent shall prepare (at
Borrower's expense) and deliver to Borrower such documents as are necessary to
effect such release and reconveyance.
ARTICLE
3
DEBT AND OBLIGATIONS
SECURED
3.01
Debt. This
Security Instrument and the interests created in favor of Agent hereunder are
given for the purpose of securing (a) payment of principal, interest and all
other amounts due at anytime under the Guaranty, the Note and each of the other
Transaction Documents, including, without limitation, interest at the Default
Rate, any late fee for delinquent payment, and amounts advanced by Agent or any
other Lender to protect and preserve the Property and the Liens hereby created
for the benefit of Agent (collectively "Debt"), and (b) performance of all
obligations of Borrower contained in the Guaranty, the Note and each of the
other Transaction Documents (collectively with the Debt, the "Obligations"). Notwithstanding any
provision of this Security Instrument to the contrary, the obligations of
Borrower and the other indemnitors under the Environmental Indemnity Agreement
(as defined in the Purchase Agreement) shall not be deemed secured by this
Security Instrument unless and until Agent expressly declares in writing such
obligations to be secured hereby.
ARTICLE
4
BORROWER
COVENANTS
4.01
Payment of Debt and
Performance of Obligations. Borrower will pay the Debt at the time and in
the manner provided in the Guaranty and the other Transaction Documents and
fully and punctually perform the Obligations when and as required by the
Transaction Documents.
4.02
Compliance with
Transaction Documents. Borrower shall comply with all covenants and
agreements in the Transaction Documents, including, without limitation, all
obligations regarding the ownership, operation, management and condition of the
Property and the protection and perfection of the Liens hereby created in favor
of Agent. Without limiting the foregoing, Borrower agrees:
(a)
Borrower
shall not cause or permit any Transfer of the legal or beneficial ownership of
the Property or Borrower.
(b)
To
keep the Property in good repair and condition;
(c) To pay
all taxes and assessments on the Property before delinquency;
(d)
To
defend title to the Property subject to the Other Exceptions to Conveyance and
Warranty and preserve the lien's priority as it is established in this deed of
trust;
(e)
To
maintain, in a form acceptable to Agent, an insurance policy
that-
5
(i)
covers
all improvements for their full insurable value as determined when the policy is
issued and renewed, unless Agent approves a smaller amount in
writing;
(ii)
contains
an 80 percent coinsurance clause;
(iii)
provides
fire and extended coverage, including windstorm coverage;
(iv) protects
Agent with a standard mortgage clause;
(v)
provides
flood insurance at any time the Property is in a flood hazard area;
and
(vi)
contains
such other coverage as Agent may reasonably require;
(vii)
comply at
all times with the requirements of the 80 percent coinsurance
clause;
(viii)
deliver
the insurance policy to Agent within ten days of the date of the deed of trust
and deliver renewals to Agent at least fifteen days before
expiration;
(f)
To
obey all laws, ordinances, and restrictive covenants applicable to
the Property;
6
(g). To keep
any buildings occupied as required by the insurance policy;
and
(h) Obligations upon
Condemnation or Casualty. Borrower shall comply with all obligations
required under the Transaction Documents in the event the Property is damaged by
a Casualty or becomes involved in any Condemnation. All proceeds or awards
recovered or payable to Borrower as a result of a Casualty or Condemnation shall
be paid to, and administered by Agent, in accordance with the Note Purchase
Agreement.
(i)
Operating Agreements.
Borrower shall observe and perform in a timely manner each and every obligation
to be observed or performed by Borrower pursuant to the terms of each Operating
Agreement and shall not terminate any Operating Agreement.
4.03
Warranty of
Title. Borrower has good, marketable and insurable fee simple title of
record to the Property, free and clear of all liens, encumbrances and charges
whatsoever except for the Permitted Encumbrances. Borrower shall forever
warrant, defend and preserve the title and the validity and priority of the lien
of this Security Instrument and shall forever warrant and defend the same to
Agent and/or Trustee against the claims of all Persons
ARTICLE
5
SUBROGATION
5.01
Subrogation. If
the Guaranteed Obligations is used to pay, satisfy, discharge, extend or renew
any indebtedness secured by a pre-existing mortgage, deed of trust or other lien
encumbering the Property ("Prior
Lien"), then
to the extent of funds so used, Agent shall automatically, and without further
action on its part, be subrogated to all rights, including lien priority, held
by the holder of the indebtedness secured by the Prior Lien, whether or not the
Prior Lien is released, and such former rights are not waived but rather are
continued in full force and effect in favor of Agent and are merged with the
lien and security interest created herein as cumulative security for payment of
the Debt and performance of the Obligations.
ARTICLE 6
DEFAULT
6.01
Events of
Default. The occurrence of default under the Guaranty shall constitute an
"Event of
Default" under this Security
Instrument.
6.02
Remedies. If an
Event of Default occurs, Agent may, at its option, acting directly or through
Trustee and without prior notice or demand, exercise, and hereby is authorized
and empowered by Borrower so to exercise, any or all of the remedies set forth
in the Note (including, without limitation, the right to accelerate the
Guaranteed Obligations and the right to appoint a receiver, trustee, liquidator
or conservator of the Property) or otherwise permitted by law or in
equity.
6.03
Cumulative Remedies:,
No Waiver:, Other Security. Agent's remedies under this Security
Instrument are cumulative with the remedies provided in the other Transaction
Documents, by law or in equity and may be exercised independently, concurrently
or successively in Agent's sole discretion and as often as occasion therefor
shall arise. Agent's delay or failure to accelerate the Guaranteed Obligations
or exercise any other remedy upon the occurrence of an Event of Default shall
not be deemed a waiver of such right as remedy. No partial exercise by Agent of
any right or remedy will preclude further exercise thereof Notice or demand
given to Borrower in any instance will not entitle Borrower to notice or demand
in similar or other circumstances nor constitute Agent's waiver of its right to
take any future action in any circumstance without notice or demand (except
where expressly required by this Security Instrument to be given). Agent may
release other security for the Debt, may release any party liable for the Debt,
may grant extensions, renewals or forbearances with respect thereto, may accept
a partial or past due payment or grant other indulgences, or may apply any other
security held by it to payment of the Debt, in each case without prejudice to
its rights under this Security Instrument and without such action being deemed
an accord and satisfaction or a reinstatement of the Debt. Agent will not be
deemed as a consequence of its delay or failure to act, or any forbearances
granted, to have waived or be estopped from exercising any of its rights or
remedies.
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6.04
Enforcement
Costs. Borrower shall pay, on written demand by Agent, all costs incurred
by Agent in (a) collecting any amount payable under the Transaction
Documents including, without limitation, any and all costs and expenses incurred
in connection with any foreclosure of this Security Instrument or the exercise
of any power or sale hereunder, or (b) enforcing its rights under the
Transaction Documents, in each case whether or not legal proceedings are
commenced. Such fees and expenses include, without limitation, reasonable fees
for attorneys, paralegals, law clerks and other hired professionals, a
reasonable assessment of the cost of services performed by Agent's default
management staff, court fees, costs incurred in connection with pre-trial, trial
and appellate level proceedings, including discovery, and costs incurred in post
judgment collection efforts or in any bankruptcy proceeding. Amounts incurred by
Agent shall be added to the Debt, shall be immediately due and payable, and
shall bear interest at the Default Rate from the date of disbursement until paid
in full, if not paid in full within five (5) days after Agent's written demand
for payment.
6.05
Application of
Proceeds. The proceeds from disposition of the Property shall be applied
by Agent to the payment of the Debt (including, without limitation, advances
made by Agent and enforcement costs incurred by Agent) in such priority and
proportion as Agent determines in its sole discretion.
6.06
Continuing Lien:,
Right to Release Property. If less than all of the Property is, at any
time, sold through foreclosure, power of sale, or otherwise, or if Agent
releases any portion of the Property (for whatever consideration Agent deems
appropriate), this Security Instrument shall continue as a lien and security
interest on the remaining portion of the Property, unimpaired and without loss
of priority.
ARTICLE
7
WAIVER OF RIGHT OF
REDEMPTION AND OTHER RIGHTS
7.01
Waiver of Rights of
Redemption, Marshalling and Other Rights. Borrower hereby waives, to the
fullest extent permitted by law, the benefit of all laws, now or hereafter in
force, providing for (a) the valuation or appraisement of the Property, or any
part thereof, prior to any sale or sales thereof pursuant to this Security
Instrument or any decree, judgment or order of a court of competent
jurisdiction; (b) the right to stay or extend any such proceeding, to have this
Security Instrument reinstated or to redeem the Property or any portion thereof
so sold; (c) rights of marshalling relating to any such sale or sales; (d) any
right to require that the Property be sold as separate tracts or units in
connection with enforcement of this Security Instrument; and (e) the benefit of
any moratorium, exemption or homestead rights now or hereafter provided.
Borrower makes such waivers on its own behalf and on behalf of all parties now
or hereafter claiming or having an interest (direct or indirect) by, through or
under Borrower.
7.02
Waiver of
Counterclaim. Borrower hereby waives, to the fullest extent permitted by
law, the right to assert a counterclaim, other than a mandatory or compulsory
counterclaim, in any action or proceeding brought against it by Trustee or Agent
arising out of, or in any way connected with, the Obligations.
7.03
Waiver of Foreclosure
Defense. Borrower hereby waives, to the fullest extent permitted by law,
any defense Borrower might have by reason of Agent's failure to make any tenant
or tenant of the Property a party defendant in any foreclosure instituted by
Agent.
7.04
Waiver of Notices
Generally. Borrower hereby waives, to the fullest extent permitted by
law, its rights to notice from Agent except when this Security Instrument or the
other Transaction Documents expressly provides for Agent to give notice to
Borrower.
7.05
Waiver of Statute of
Limitations and Laches. Borrower hereby waives, to the fullest extent
permitted by law, the benefit of any statute of limitations or laches defense to
payment of the Debt or performance of the Obligations.
7.06
WAIVER OF
TRIAL BY JURY. BORROWER
WAIVES ITS RIGHT, TO THE FULLEST EXTENT PERMITTED BY LAW, AND AGREES NOT TO
ELECT, A TRIAL BY JURY WITH RESPECT TO ANY ISSUE ARISING OUT OF THIS SECURITY
INSTRUMENT OR THE RELATIONSHIP BETWEEN THE PARTIES AS BORROWER AND
AGENT.
7.07
Consent to
Jurisdiction. Borrower hereby consents and submits to the exclusive
jurisdiction and venue of any state or federal court sitting in the county and
state where the Land is located with respect to any legal action or proceeding
arising with respect to this Security Instrument and waives all objections which
it may have to such jurisdiction and venue. Nothing herein shall, however,
preclude or prevent Agent from bringing actions against Borrower in any other
jurisdiction as may be necessary to enforce or realize upon the security herein
provided.
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ARTICLE
S
MISCELLANEOUS
PROVISIONS
8.01
Further Acts.
Borrower, at Borrower's expense, agrees to take such further actions and execute
such further documents as Agent reasonably may request to carry out the intent
of this Security Instrument or to establish and protect the rights and remedies
created or intended to be created in favor of Agent hereunder or to protect the
value of the Property and the Liens and security hereby created in favor of
Agent. Borrower agrees to pay all filing, registration or recording fees or
taxes, and all expenses incident to the preparation, execution, acknowledgement
or filing/recording of this Security Instrument or any such instrument of
further assurance, except where prohibited by law so to do.
8.02
No Third Party
Beneficiary. Notwithstanding any provision of this Security Instrument to
the contrary, this Security Instrument is not intended by the parties to create,
and shall not create, benefits on behalf of any tenant or other occupant of the
Property or anyone claiming rights through any tenant or other occupant of the
Property.
8.03
No Agency or
Partnership. Nothing contained in this Security Instrument shall
constitute Agent as a joint venturer, partner or agent of Borrower, or render
Agent liable for any debts, obligations, acts, omissions, representations, or
contracts of Borrower.
ARTICLE
9
TRUSTEE
PROVISIONS
9.01
Trustee's Fees and
Expenses. Borrower shall pay all reasonable fees and expenses incurred by
Trustee for legal counsel and other professional advisors in connection with
Trustee's performance of its duties hereunder. Amounts incurred by Trustee shall
be deemed a part of the Debt secured by this Security Instrument and bear
interest at 18 percent if not paid in full within five (5) days after Trustee's
written demand for payment. Trustee hereby waives any statutory fee or
compensation for services rendered hereunder.
9.02
Duties of
Trustee.
(a)
Trustee, by acceptance of this Security Instrument, covenants to perform and
fulfill the trusts and duties herein created and conferred upon Trustee.
Notwithstanding the foregoing, Trustee agrees not to execute any of the powers
conferred upon Trustee hereunder, nor to take any action to protect or enforce
Agent's rights hereunder, nor to provide any interpretation of this Security
Instrument or any of the other Transaction Documents without Agent's prior
written consent thereto in each instance. Trustee, however, has an affirmative
duty to reasonably cooperate with Agent as Agent may require to protect the
Property and to enforce Agent's rights hereunder, but Trustee shall not be
obligated to institute or defend any suit in respect hereof or to perform any
act which would involve Trustee in any expense or liability unless, in each
case, properly indemnified to Trustee's reasonable satisfaction. Trustee also
has no duty to see to any recording, filing or registration of this Security
Instrument or any other instrument in addition or supplemental hereto, or to
give any notice thereof, or to see to the payment of, or be under any duty in
respect of, any tax or assessment or other governmental charge which may be
levied or assessed on the Property or against Borrower, or to see to the
performance or observance by Borrower of any of the covenants and agreements
contained herein. Trustee shall not be responsible for the sufficiency of the
security purported to be created hereby and makes no representation or warranty
in respect thereof or in respect of the rights of Agent.
(b) Trustee
shall not be liable for any error of judgment or act done by Trustee in good
faith or otherwise responsible or accountable under any circumstances whatsoever
(including Trustee's negligence), except for Trustee's gross negligence or
willful misconduct. Trustee has the right to advice of counsel upon any matters
arising hereunder and shall be fully protected in relying on the advice of
counsel. Trustee has the right to rely on any instrument, document or signature
authorizing or supporting any action taken or proposed to be taken by Trustee
hereunder, believed by Trustee in good faith to be genuine. Trustee shall not be
personally liable in case of entry upon the Property by Trustee, or anyone
entering by virtue of the powers herein granted to Trustee, or for liability or
damages incurred in the management or operation of the
Property.
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(c) All
money received by Trustee with respect to the Debt and Obligations shall, until
used or applied as herein provided, be held in trust for
the purposes for which they were received, but need not be segregated in any
manner from any other moneys (except to the extent required by applicable law),
and Trustee shall be under no liability for interest on any moneys received by
Trustee hereunder.
9.03
Resignation and
Substitution of Trustee.
(a) Trustee
may resign at any time upon written notice to Agent delivered not less than
thirty (30) days prior to the intended date of resignation. In the event of
Trustee's death, resignation, refusal to act, disqualification or other
inability to act, or if Agent shall deem it desirable to remove Trustee for any
reason with or without cause, Agent has the right, in its sole discretion, to
select and appoint a successor trustee (who may be Agent or an affiliate of
Agent if permitted by law), without application to court or compliance with any
formality other than appointment and designation in writing by Agent. If Agent
is a corporation or association and such appointment is executed in its behalf
by an officer of such corporation or association, such appointment shall be
conclusively presumed to be executed with authority and shall be valid and
sufficient without proof of any action by the board of directors or any superior
officer of the corporation or association.
(b) Any
successor appointed as Trustee shall, without further act, deed or conveyance,
become vested with all of the estates, properties, rights, powers, privileges,
immunities and duties herein conferred upon Trustee with like effect as if such
successor were originally named as trustee herein. Nevertheless, upon the
written request of Agent or of the successor as Trustee, the party ceasing to
act as Trustee shall execute and deliver an instrument, in recordable form,
transferring to such successor as Trustee, all of the estates, properties,
rights, powers, privileges, immunities and duties herein conferred upon Trustee
and shall duly assign, transfer and deliver to such successor, in trust, any of
the property and money then held by the party ceasing to act as
Trustee.
9.04
Multiple
Trustees. If more than one Trustee is appointed hereunder at any one
time, or from time to time, all rights granted to and all powers conferred upon
Trustee hereunder may be exercised by any or all of such Trustees, independently
or jointly. Action exercised by one Trustee shall be deemed valid and binding on
all Trustees.
ARTICLE
10
LOCAL LAW
PROVISIONS
The
provisions set forth below control in the event of any conflict with the other
terms of this Security Instrument.
10.01
Acceleration;
Remedies. At any time during the existence of an Event of Default, Agent,
at Agent's option, may declare the Debt to be immediately due and payable
without further demand, and may invoice the power of sale and any other remedies
permitted by Texas law or provided in this Security Instrument or in any other
Transaction Document. Borrower acknowledges that the power of sale granted in
this Security Instrument may be exercised by Agent without prior judicial
hearing. Agent shall be entitled to collect all reasonable costs and expenses
incurred in pursuing such remedies, including reasonable attorneys' fees, costs
of documentary evidence, abstracts and title reports.
(a) If
Agent invokes the power of sale, Agent may, by and through the Trustee, or
otherwise, sell or offer for sale the Property in such portions, order and
parcels as Agent may determine, with or without having first taken possession of
the Property, to the highest bidder at public auction. Such sale shall be made
at the courthouse door of the county in which all or any part of the Land to be
sold is situated (whether the parts or parcel, if any, situated in different
counties are contiguous or not, and without the necessity of having any Property
present at such sale) on the first Tuesday of any month between the hours of
10:00 A.M. and 4:00 P.M., after advertising the time, place and terms of sale
and that portion of the Property to be sold by posting or causing to be posted
written or printed notice of sale at least twenty-one (21) days before the date
of the sale at the courthouse door of the county in which the sale is to be made
and at the courthouse door of any other county in which a portion of the Land
may be situated, and by filing such notice with the County Clerk(s) of the
county(s) in which all or a portion of the Land may be situated, which notice
may be posted and filed by the Trustee acting, or by any person acting for the
Trustee, and Agent has, at least twenty-one (21) days before the date of the
sale, served written or printed notice of the proposed sale by certified mail on
each debtor obligated to pay the Debt according to Agent's records by the
deposit of such notice, enclosed in a postpaid wrapper, properly addressed to
such debtor at debtor's most recent address as shown by Agent's records, in a
post office or official depository under the care and custody of the United
States Postal Service. The affidavit of any person having knowledge of the facts
to the effect that such service was completed shall be prima facie evidence
of the fact of service.
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(b) Trustee
shall deliver to the purchaser at the sale, within a reasonable time after the
sale, a deed conveying the Property so sold in fee simple with covenants of
special warranty. Borrower covenants and agrees to defend the purchaser's title
to the Property against all claims and demands, subject to the Permitted
Encumbrances and any other exceptions hereafter approved by Agent in writing.
The recitals in Trustee's deed shall be prima facie evidence
of the truth of the statements contained in those recitals. Trustee shall apply
the proceeds of the sale in the following order: (i) to all reasonable costs and
expenses of the sale, including reasonable Trustee's fees not to exceed 5% of
the gross sales price, attorneys' fees and costs of title evidence; (ii) to the
Debt in such order as Agent, in Agent's discretion, directs; and (iii) the
excess, if any, to the person or persons legally entitled to the
excess.
(c) If
all or any part of the Property is sold pursuant to this Section, Borrower will
be divested of any and all interest and claim to the Property, including,
without limitation, any interest or claim to all insurance policies, utility
deposits, bonds, loan commitments and other intangible property included as a
part of the Property. Additionally, after a sale of all or any part of the Land,
Improvements, and Personal Property, Borrower will be considered a tenant at
sufferance of the purchaser of the same, and the purchaser shall be entitled to
immediate possession of such property. If Borrower shall fail to vacate the
Property immediately, the purchaser may and shall have the right, without
further notice to Borrower, to go into any justice court in any precinct or
county in which the Property is located and file an action in forcible entry and
detainer, which action shall lie against Borrower or its assigns or legal
representatives, as a tenant at sufferance. This remedy is cumulative of any and
all remedies the purchaser may have under this Security Instrument or
otherwise.
(d) In
any action for a deficiency after a foreclosure under this Security Instrument,
if any person against whom recovery is sought requests the court in which the
action is pending to determine the fair market value of the Property, as of the
date of the foreclosure sale, the following shall be the basis of the court's
determination of fair market value:
(i) the
Property shall be valued "as is" and in its condition as of the date of
foreclosure, and no assumption of increased value because of post-foreclosure
repairs, refurbishment, restorations or improvements shall be made;
(ii) any
adverse effect on the marketability of title because of the foreclosure or
because of any other title condition not existing as of the date of this
Security Instrument shall be considered;
(iii) the
valuation of the Property shall be based upon an assumption that the foreclosure
purchaser desires a prompt resale of the Property for cash within a six
month-period after foreclosure;
(iv) although
the Property may be disposed of more quickly by the foreclosure purchaser, the
gross valuation of the Property as of the date of foreclosure shall be
discounted for a hypothetical reasonable holding period (not to exceed 6 months)
at a monthly rate equal to the average monthly interest rate on the Note for the
twelve months before the date of foreclosure;
(v) the
gross valuation of the Property as of the date of foreclosure shall be further
discounted and reduced by reasonable estimated costs of disposition, including
brokerage commissions, title policy premiums, environmental assessment and
clean-up costs, tax and assessment, prorations, costs to comply with legal
requirements and attorneys' fees, reduced by the discounted value of estimated
net operating income to be generated by the Property pending disposition, if
any;
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(vi) expert
opinion testimony shall be considered only from a licensed appraiser certified
by the State of Texas and, to the extent permitted under Texas law, a member of
the Appraisal Institute, having at least five years' experience in appraising
property similar to the Property in the county where the Property is located,
and who has conducted and prepared a complete written appraisal of the Property
taking into considerations the factors set forth in this Security Instrument; no
expert opinion testimony shall be considered without such written
appraisal;
(vii) evidence
of comparable sales shall be considered only if also included in the expert
opinion testimony and written appraisal referred to in subsection (vi), above;
and
(viii) an
affidavit executed by Agent to the effect that the foreclosure bid accepted by
Trustee was equal to or greater than the value of the Property determined by
Agent based upon the factors and methods set forth in subsections (i) through
(vii) above before the foreclosure shall constitute prima facie evidence that the
foreclosure bid was equal to or greater than the fair market value of the
Property on the foreclosure date.
(e)
Agent may, at Agent's option, comply with these provisions in the manner
permitted or required by Title 5, Section 51.002 of the Texas Property Code
(relating to the sale of real estate) or by Chapter 9 of the Texas Business and
Commerce Code (relating to the sale of collateral after default by a debtor), as
those titles and chapters now exist or may be amended or succeeded in the
future, or by any other present or future articles or enactments relating to
same subject. Unless expressly excluded, the Property shall include Rents
collected before a foreclosure sale, but attributable to the period following
the foreclosure sale, and Borrower shall pay such Rents to the purchaser at such
sale. At any such sale whether made under the power contained in this Security
Instrument, Section 51.002 of the Texas Property Code, Chapter 9 of the Texas
Business and Commerce Code, any other legal requirement or by virtue of any
judicial proceedings or any other legal right, remedy or recourse, it shall not
be necessary for Trustee to have physically present, or to have constructive
possession of, the Property (Borrower shall deliver to Trustee any portion of
the Property not actually or constructively possessed by Trustee immediately
upon demand by Trustee) and the title to and right of possession of any such
property shall pass to the purchaser as completely as if the property had been
actually present and delivered to the purchaser at the sale:
(i) each
instrument of conveyance executed by Trustee shall contain a special warranty of
title, binding upon Borrower;
(ii) the
recitals contained in any instrument of conveyance made by Trustee shall
conclusively establish the truth and accuracy of the matters recited therein,
including nonpayment of the Debt and the advertisement and conduct of the sale
in the manner provided in this Security Instrument and otherwise by law and the
appointment of any successor Trustee;
(iii) all
prerequisites to the validity of the sale shall be conclusively presumed to have
been satisfied;
(iv) the
receipt of Trustee or of such other party or officer making the sale shall be
sufficient to discharge to the purchaser or purchasers for such purchaser(s)'
purchase money, and no such purchaser or purchasers, or such purchaser(s)'
assigns or personal representatives, shall thereafter be obligated to see to the
application of such purchase money or be in any way answerable for any loss,
misapplication or nonapplication of such purchase money;
(v) to
the fullest extent permitted by law, Borrower shall be completely and
irrevocably divested of all of Borrower's right, title, interest, claim and
demand whatsoever, either at law or in equity, in and to the property sold, and
such sale shall be a perpetual bar to any claim to all or any part of the
property sold, both at law and in equity, against Borrower and against any
person claiming by, through or under Borrower; and
(vi) to
the extent and under such circumstances as are permitted by law, Agent may be a
purchaser at any such sale.
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10.02
No Fiduciary
Duty. Agent owes no fiduciary or other special duty to
Borrower.
10.03
Fixture Filing.
This Security Instrument is also a fixture filing under the Uniform Commercial
Code of Texas.
10.04
Additional Provisions
Regarding Assignment of Rents. Section 2.03 shall
not be construed to require a
pro tanto or
other reduction of the Debt resulting from the assignment of Rents. If the
provisions of Section
2.03 and the preceding sentence cause the assignment of Rents in Section 2.03 to be
deemed to be an assignment for additional security only, Agent shall be entitled
to all rights, benefits and remedies attendant to such collateral assignment.
The assignment of Rents contained in Section 2.03 shall
terminate upon the release of this Security Instrument.
10.05
[Reserved]
10.06
Waiver of
Appraisement. Borrower hereby waives any rights of appraisement or for
determination of the fair market value of the Property under Sections 51.003 and
51.004 of the Texas Property Code or as Borrower may otherwise be entitled under
Texas law.
[Remainder
of page is blank; signatures appear on next page.]
13
IN
WITNESS WHEREOF, the undersigned hereby signs, seals and delivers this Security
Instrument.
BORROWER:
VALCENT
MANUFACTURING, LTD.
BY:
VALCENT MANAGEMENT, L.L.C.
ITS:
General Partner
By: /S/ XXXXX
XXXXXX
Name: Xxxxx X.
Xxxxxx
Title: President
THE STATE
OF
TEXAS §
COUNTY
OF EL
PASO §
This
instrument was acknowledged before me on the 15th day of July, 2008, by Xxxxx
X. Xxxxxx, the President of Valcent Management, LLC, the General Partner of
Valcent Manufacturing, Ltd., on behalf of said company.
/s/ Xxxx Xxxxxxxxx
Notary
Public in and for the State of Texas
6-07-2012
(Date Commission Expires)
EXHIBIT
A
Description
of the Land
14
