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EXHIBIT 10.50
DEED OF TRUST
(WITH ASSIGNMENT OF RENTS AND FIXTURE FILING)
STATE OF TEXAS )
) KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF DALLAS )
GRANT OF LIEN
BY THIS AGREEMENT, August 16, 1996, the undersigned, XXXXXXXXX
INDUSTRIES, L.P., a Texas limited partnership (herein referred to as the
"Grantor"), whose address is 000 Xxxx Xxxxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx,
Xxxxx 00000, to secure the indebtedness and obligations hereinafter described,
does hereby GRANT, BARGAIN, SELL, ASSIGN and CONVEY unto Xxxxx X. Xxxxx, as
trustee ("Trustee"), the following described real property located in Dallas
County, Texas (the "Land"):
as described on Exhibit A attached hereto and incorporated
herein by reference;
TOGETHER WITH the following, whether now owned or hereafter
acquired by Grantor: (a) all improvements now or hereafter attached to or
placed, erected, constructed or developed on the Land (the "Improvements"); (b)
all equipment, fixtures, furnishings, inventory and articles of personal
property (the "Personal Property") owned by Grantor and now or hereafter
attached to or used in or about the Improvements or that are necessary or
useful for the complete and comfortable use and occupancy of the Improvements
for the purposes for which they were or are to be attached, placed, erected,
constructed or developed, or which Personal Property is or may be used in or
related to the planning, development, financing or operation of the
Improvements, and all renewals of or replacements or substitutions for any of
the foregoing, whether or not the same are or shall be attached to the Land or
Improvements; (c) all water and water rights, timber, crops, and mineral
interests pertaining to the Land; (d) all building materials and equipment
owned by Grantor and now or hereafter delivered to and intended to be installed
in or on the Land or the Improvements; (e) all plans and specifications owned
by Grantor for the Improvements or the Personal Property, (f) all deposits
(including tenants' security deposits), bank accounts, funds, documents,
contract rights, accounts, commitments, construction contracts, architectural
agreements, general intangibles (including without limitation trademarks, trade
names and symbols) and instruments, notes or chattel paper arising from or by
virtue of any transactions related to the Land, the Improvements or the
Personal Property; (g) all permits, licenses, franchises, certificates, and
other rights and privileges obtained in connection with the Land, the
Improvements and the Personal Property; (h) all proceeds arising from or by
value of the sale, lease or other disposition of the Land, the Improvements or
the Personal Property; (i) all proceeds (including premium refunds) of each
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and Assignment of Rents) - Page 1
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policy of insurance relating to the Land, the Improvements or the Personal
Property; (j) all proceeds from the taking of the Land, the Improvements, the
Personal Property or any rights appurtenant thereto by right of eminent domain
or by private or other purchase in lieu thereof, including change of grade of
streets, curb cuts or other rights of access, for any public or quasi-public
use under any law; (k) all right, title and interest of Grantor in and to all
streets, roads, public places, easements and rights-of-way, existing or
proposed, public or private, adjacent to or used in connection with, belonging
or pertaining to the Land; (l) all of the leases, rents, royalties, bonuses,
issues, profits, revenues or other benefits of the Land, the Improvements or
the Personal Property, including, without limitation, cash or securities
deposited pursuant to leases to secure performance by the lessees of their
obligations thereunder; (m) all consumer goods owned by Grantor and located in,
on or about the Land or the Improvements or used in connection with the use or
operation thereof; (n) all rights, hereditaments and appurtenances pertaining
to the foregoing, and (o) other interests of every kind and character that
Grantor now has or at any time hereafter acquires in and to the Land,
Improvements, and Personal Property described herein and all property that is
used or useful in connection therewith, including rights of ingress and egress
and all reversionary rights or interests of Grantor with respect to such
property. This conveyance shall include, and the lien and security interest
created hereby shall encumber, all additional title, estate, interest, and
other rights that may hereafter be acquired by Grantor in the Land. The
above-described property is collectively referred to herein as the "Mortgaged
Property."
TO HAVE AND TO HOLD the Mortgaged Property, together with the
rights, privileges and appurtenances thereto belonging, unto the Trustee and
his substitutes or successors, forever, and Grantor hereby binds Grantor and
Grantor's heirs, executors, administrators, personal representatives,
successors and assigns to warrant and forever defend the Mortgaged Property
unto the Trustee, his substitutes or successors and assigns, against the claim
or claims of all persons claiming or to claim the same or any part thereof,
together with such future exceptions to title as may hereafter be created by
Grantor with the written consent of Beneficiary (the "Permitted Exceptions").
ARTICLE 1
INDEBTEDNESS
This Deed of Trust is given to secure the following:
1.1 Payment of Loan. Payment to Beneficiary of all
indebtedness evidenced by or arising under that certain Loan and Security
Agreement between Grantor and Foothill Capital Corporation, whose address is
00000 Xxxxx Xxxxxx Xxxxxxxxx, Xxxxx 0000, Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
("Beneficiary"), dated of even date herewith (the "Loan Agreement"), together
with interest thereon, including sums added to the principal balance of the
Loan Agreement in accordance with the terms thereof, and all prepayment, late
or other charges or fees payable thereunder, and any and all modifications,
extensions, renewals or substitutions thereof. This loan includes revolving
and future advances and repayments on a revolving basis. Future and revolving
advances and other future obligations and indebtedness owed by Grantor to
Beneficiary shall be secured hereunder.
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and Assignment of Rents) - Page 2
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1.2 Payment of Further Loans. Payment of such further
indebtedness with interest thereon, and performance of and compliance with such
further obligations as Grantor may undertake to pay, perform or comply with for
the benefit of Beneficiary, its successors or assigns, when such borrowing or
obligation is evidenced by a note or by any writing reciting that it or they
are so secured.
1.3 Performance Under Loan Documents. Performance of and
compliance with each agreement, undertaking, obligation, warranty or
representation of Grantor contained in the Loan Documents (as such term is
defined in the Loan Agreement), or incorporated therein by reference, or in any
and all documents, leases or instruments assigned to Beneficiary or executed in
Beneficiary's favor and delivered thereunder, and payment of all sums, fees,
costs and expenses as therein set forth or which may otherwise be advanced by
or due to Trustee or Beneficiary under any provision thereof with interest
thereon at the rate provided therein.
1.4 Deed of Trust. Payment of all sums advanced by
Beneficiary to or for the benefit of Grantor contemplated hereby and
performance of all obligations and covenants herein contained.
The obligations above described are hereinafter collectively
called the "Indebtedness."
ARTICLE 2
FIXTURE FILING
Some of the items of the Mortgaged Property described herein
are goods that are or are to become fixtures related to the Land on which such
fixtures are located, and it is intended that, as to those goods, this Deed of
Trust shall be effective as a financing statement filed as a fixture filing
from the date of its filing for record in the real estate records of the county
in which the Mortgaged Property is situated. Information concerning the
security interest created by this instrument may be obtained from Beneficiary,
as secured party, at the address of Beneficiary stated above. The mailing
address of the Grantor, as debtor, is as stated above.
ARTICLE 3
REPRESENTATIONS, WARRANTIES,
COVENANTS AND AGREEMENTS OF GRANTOR
Grantor does hereby covenant, warrant and represent to and
agree with Beneficiary as follows:
3.1 Payment and Performance. Grantor shall make all
payments on the Indebtedness when due and shall punctually and properly perform
all of Grantor's covenants, obligations and liabilities under the Loan
Documents.
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and Assignment of Rents) - Page 3
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3.2 Title to Mortgaged Property and Lien of this Deed of
Trust. Grantor has good and indefeasible title to the Land free and clear of
any liens, charges, encumbrances, security interests, and adverse claims except
the Permitted Exceptions. If the interest of Beneficiary in the Mortgaged
Property or any part thereof shall be endangered or shall be attacked, directly
or indirectly, Grantor hereby authorizes Beneficiary, at Grantor's expense, to
take all necessary and proper steps for the defense of such interest, including
the employment of counsel, the prosecution or defense of litigation, and the
compromise or discharge of claims made against such interest.
3.3 Insurance. Grantor shall provide, obtain, maintain
and keep in full force and effect for each tract comprising the Land, during
the term of this Deed of Trust, insurance of the types and in the amounts set
forth in the Loan Agreement. Each such insurance policy is hereby deemed to be
an incident to the title to the Mortgaged Property and is hereby assigned and
pledged as additional security for the indebtedness secured hereby. If this
Deed of Trust is foreclosed, the purchaser at the foreclosure sale shall become
the sole and absolute owner of any and all such insurance policies with the
sole right to collect and retain all unearned premiums thereon.
In no event shall Beneficiary be held responsible for failure
to pay for any insurance required hereby or for any loss or damage growing out
of a defect in any policy thereof or growing out of any failure of any
insurance company to pay for any loss or damage insured against or for failure
by Beneficiary to effect such insurance or for failure to collect or to
exercise diligence in the collection of any proceeds of any insurance required
hereby.
3.4 Taxes and Assessments. Grantor shall pay all taxes
and assessments against or affecting the Mortgaged Property as the same become
due and payable, and Grantor shall deliver to Beneficiary, on demand, paid
receipts or other evidence of the payment thereof, and, if Grantor fails to do
so, Beneficiary may pay them, together with all costs and penalties thereon, at
Grantor's expense.
3.5 Condemnation. All judgments, decrees and awards for
injury or damage to the Mortgaged Property, and all awards pursuit to
proceedings for condemnation thereof, are hereby assigned in their entirety to
Beneficiary, who may apply the same to the Indebtedness in such manner as it
may elect. Beneficiary is hereby authorized, in the name of Grantor, to
execute and deliver valid acquittances for, and to appeal from, any such award,
judgment or decree. Immediately upon its obtaining knowledge of the
institution or the threatened institution of any proceedings for the
condemnation Mortgaged Property, Grantor shall notify Beneficiary of such fact.
Grantor shall then, if requested by Beneficiary, file or defend its claim
thereunder and prosecute same with due diligence to its final disposition and
shall cause any awards or settlements (less reasonable costs and expenses
incurred in connection therewith) to be paid over to Beneficiary for
disposition pursuant to the terms of this Deed of Trust. Beneficiary shall be
entitled to participate in and to control same and to be represented therein by
counsel of its own choice, and Grantor shall deliver, or cause to be delivered,
to Beneficiary such instruments as may be requested by it from time to time to
permit such participation. In the event Beneficiary, as a result of any such
judgment, decree or award, reasonably believes that the payment or performance
of any obligation secured by this Deed of Trust is impaired, Beneficiary shall
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and Assignment of Rents) - Page 4
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provide written notice to Grantor of the extent of the principal payment under
the Loan Agreement which would, in the reasonable belief of Beneficiary, remove
such impairment and Grantor shall have thirty (30) days thereafter to make such
principal payment required (and any prepayment penalty or prohibition on
prepayment shall be amended to allow Grantor to make such prepayment without
penalty) and if such payment is not made within thirty (30) day period
Beneficiary may, without further notice, declare all of the Indebtedness due
and payable.
3.6 Taxes on Deed of Trust. At any time any law shall be
enacted imposing or authorizing the imposition of any tax upon this Deed of
Trust, or upon any rights, titles, liens, or security interests created hereby,
Grantor shall immediately pay all such taxes.
3.7 Repair, Waste, Alterations, etc. Grantor shall keep
every part of the Mortgaged Property in good operating order, repair and
condition and shall not commit or permit any waste thereof. Grantor shall make
promptly all repairs, renewals and replacements necessary to such end. Grantor
shall discharge all claims for labor performed and material furnished therefor,
and shall not suffer any lien or mechanics or materialmen to attach to any part
of the Mortgaged Property unless bonded in an amount satisfactory to
Beneficiary while being contested. If Grantor shall fail to discharge any such
lien, then, in addition to any other right or remedy of Beneficiary,
Beneficiary may, but shall not be obligated to, discharge the same, either by
paying the amount claimed to be due, or by procuring the discharge of such lien
by depositing in court a bond for the amount, or otherwise giving security for
such claim, or by taking such action as may be prescribed by law.
3.8 No Drilling or Exploration. Without the prior
written consent of Beneficiary, there shall be no drilling or exploring for or
extraction, removal, or production of minerals from the surface or subsurface
of the land. The term "minerals" as used herein shall include, without
limiting the generality of such term, oil, gas, casinghead gas, coal, lignite,
hydrocarbons, methane, carbon dioxide, helium, uranium and all other natural
elements, compounds and substances, including sand and gravel.
3.9 Compliance With Restrictive Covenants. Grantor shall
ensure that the Mortgaged Property complies at all times with the terms of all
restrictive covenants and other agreements of record that pertain to the
Mortgaged Property.
3.10 Compliance With Laws. Grantor, the Mortgaged
Property, and the use thereof by Grantor shall comply with all laws, rules,
ordinances, regulations, covenants, conditions, restrictions, orders and
decrees of any governmental authority or court applicable to Grantor or the
Mortgaged Property and its use, and Grantor shall pay all fees or charges of
any kind in connection therewith.
3.11 Hold Harmless. Grantor shall defend, at its own cost
and expense, and hold Beneficiary harmless from any proceeding or claim
affecting the Mortgaged Property, this Deed of Trust or any of the other Loan
Documents, except claims arising as a result of Beneficiary's gross negligence
or willful misconduct. All costs and expenses incurred by Beneficiary in
protecting its interest hereunder, including all court costs and reasonable
attorneys' fees, shall be borne by Grantor.
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and Assignment of Rents) - Page 5
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3.12 Further Assurances. Grantor, upon the request of
Beneficiary, shall execute, acknowledge, deliver, and record such further
instruments and do such further acts as may be necessary, reasonably desirable
or reasonably proper to carry out the purposes of this Deed of Trust and the
other Loan Documents and to subject to the liens and security interests created
thereby any property intended by the terms thereof to be covered thereby,
including specifically, but without limitation, any renewals, additions,
substitutions, replacements, improvements, or appurtenances to the Mortgaged
Property.
3.13 Recording and Filing. Grantor shall cause this Deed
of Trust and the other Loan Documents and all amendments, supplements and
extensions thereto and substitutions therefor to be recorded, filed,
re-recorded and refiled in such manner and in such places as Beneficiary shall
reasonably request, and shall pay all such recording, filing, re-recording and
refiling fees, title insurance premiums, and other charges.
ARTICLE 4
SUBORDINATE DEED OF TRUST
AND OTHER ENCUMBRANCES
4.1 Subordinate Deed of Trusts. Grantor shall not,
without the prior written consent of Beneficiary, grant any lien, security
interest, or other encumbrance (hereinafter called "Subordinate Deed of Trust")
covering any of the Mortgaged Property. Any Subordinate Deed of Trust to which
Beneficiary hereafter consents or which is created by Grantor in the event the
foregoing prohibition is determined by a court of competent jurisdiction to be
unenforceable, shall contain express covenants to the effect that:
(a) the Subordinate Deed of Trust is unconditionally
subordinate to this Deed of Trust;
(b) if any action (whether judicial or pursuant to a
power of sale) shall be instituted to foreclose or otherwise enforce the
Subordinate Deed of Trust, no tenant of any lease of any part of the Mortgaged
Property, Land, or Improvements shall be named as a party defendant, and no
action shall be taken that would terminate any occupancy or tenancy without the
prior written consent of Beneficiary;
(c) rents, if collected by or for the holder of the
Subordinate Deed of Trust, shall be applied first to the payment of the
Indebtedness then due and expenses incurred in the ownership, operation and
maintenance of the Mortgaged Property in such order as Beneficiary may
determine, prior to being applied to any indebtedness secured by the
Subordinate Deed of Trust; and
(d) written notice of default under the Subordinate Deed of
Trust and written notice of the commencement of any action (whether judicial or
pursuant to a power of sale) to foreclose or otherwise enforce the Subordinate
Deed of Trust shall be given to Beneficiary with or immediately after the
occurrence of any such default or commencement.
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and Assignment of Rents) - Page 6
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ARTICLE 5
ASSIGNMENT OF RENTS AND LEASES
5.1 Assignment of Rents, Profits, etc. All of the rents,
royalties, bonuses, issues, profits, revenue, income, and other benefits
derived from the Mortgaged Property or arising from the use or enjoyment of any
portion thereof or from any lease or agreement pertaining thereto and
liquidated damages following default under such leases, and all proceeds
payable under any policy of insurance covering loss of rents resulting from
untenantability caused by damage to any part of the Mortgaged Property,
together with any and all rights that Grantor may have against any tenant under
such leases or any subtenants or occupants of any part of the Mortgaged
Property (hereinafter called the "Rents"), are hereby absolutely and
unconditionally assigned to Beneficiary, to be applied by Beneficiary in
payment of the Indebtedness. Prior to an Event of Default (as hereinafter
defined), Grantor shall have a license to collect and receive all Rents as
trustee for the benefit of Beneficiary and Grantor, and Grantor shall apply the
funds so collected first to the payment of the portions of the Indebtedness
then due and payable and thereafter to the account of Grantor.
5.2 Beneficiary in Possession. Beneficiary's acceptance
of this assignment shall not, prior to entry upon and taking possession of the
Mortgaged Property by Beneficiary, be deemed to constitute Beneficiary a
"mortgagee in possession," nor obligate Beneficiary to appear in or defend any
proceeding relating to any of the Leases or to the Mortgaged Property, take any
action hereunder, expend any money, incur any expenses, or perform any
obligation or liability under the leases in effect with respect to the
Property, or assume any obligation for any deposits delivered to Grantor by any
tenant and not delivered to Beneficiary. Beneficiary shall not be liable for
any injury or damage to person or property in or about the Mortgaged Property,
except injury or damage caused by Beneficiary's gross negligence or willful
misconduct.
5.3 Right to Rely. Grantor hereby authorizes and directs
the tenants under the Leases to pay Rents to Beneficiary upon written demand by
Beneficiary upon the occurrence of an Event of Default, without further consent
of Grantor, and the tenants may rely upon any written statement delivered by
Beneficiary to the tenants. Any such payment to Beneficiary shall constitute
payment to Grantor under the Leases.
ARTICLE 6
MISCELLANEOUS
6.1 Collection. If the Indebtedness shall be collected
by legal proceedings, whether through a probate or bankruptcy court or
otherwise, or shall be placed in the hands of an attorney for collection after
default or maturity, Grantor agrees to pay the reasonable attorneys' and
collection fees in the amount set forth in the Loan Agreement, and such fees
shall be part of the Indebtedness.
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and Assignment of Rents) - Page 7
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6.2 Change in Ownership. If the ownership (legal or
beneficial) of the Mortgaged Property or any part thereof becomes vested in a
person other than Grantor (legal or beneficial), Beneficiary may, without
written notice to Grantor, deal with such successor or successors in interest
with reference to this Deed of Trust and to the Indebtedness in the same manner
as with Grantor without in any way vitiating or discharging Grantor's liability
hereunder or upon the Indebtedness. No sale of the Mortgaged Property, and no
forbearance on the part of Beneficiary, and no extension of the time for the
payment of the Indebtedness, shall operate to release or affect the original
liability of Grantor.
6.3 Release of Lien. If Grantor shall perform each of
the other covenants and agreements herein contained, then this conveyance shall
become null and void and shall be released at Grantor's written request and
expense; otherwise, it shall remain in full force and effect. No release or
modification of this conveyance, or of the lien, security interest or
assignment created and evidenced hereby, shall be valid unless executed by
Beneficiary.
6.4 Waiver of Marshalling and Certain Rights. To the
extent that Grantor may lawfully do so, Grantor hereby expressly waives any
right pertaining to the marshalling of assets, the exemption of homestead, the
administration of estates of decedents, or other matter to defeat, reduce or
affect the right of Beneficiary to sell the Mortgaged Property for the
collection of the Indebtedness (without any prior or different resort for
collection), or the right of Beneficiary to the payment of the Indebtedness out
of the proceeds of sale of the Mortgaged Property in preference to every other
person and claimant.
6.5 Renewal and Subrogation. To the extent that proceeds
of the Indebtedness are used to pay any outstanding lien, charge or encumbrance
affecting the Mortgaged Property, such proceeds have been advanced by
Beneficiary at Grantor's request, and Beneficiary shall be subrogated to all
rights, interests and liens owned or held by any owner or holder of such
outstanding liens, charges and encumbrances, irrespective of whether such
liens, charges or encumbrances are released of record, provided, however, that
the terms and provisions hereof shall govern the rights and remedies of
Beneficiary and shall supersede the terms, provisions, rights, and remedies
under the prior deed of trust and any lien or liens to which Beneficiary is
subrogated hereunder.
6.6 No Waiver. No waiver of any default on the part of
Grantor or breach of any of the provisions of this Deed of Trust or of any
other instrument executed in connection with the Indebtedness shall be
considered a waiver of any other or subsequent default or breach, and no delay
or omission in exercising or enforcing the rights and powers, and likewise no
exercise or enforcement of any rights or powers hereunder shall be held to
exhaust such rights and powers, and every such right and power may be exercised
from time to time. Acceptance by Beneficiary of partial payments shall not
constitute a waiver of the default by failure to make full payments.
6.7 Successors and Assigns; Use of Terms. The covenants
herein contained shall bind, and the benefits and advantages shall inure to,
the respective heirs, executors, administrators, personal representatives,
successors, and assigns of the parties hereto. Whenever used, the singular
number shall include the plural and the plural the singular, and the use of any
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and Assignment of Rents) - Page 8
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gender shall be applicable to all genders. The term "Grantor" shall include in
their individual capacities and jointly all parties hereinabove named a
Grantor. The term "Beneficiary" shall include any lawful owner, holder,
pledges, or assignee of any of the Indebtedness. The duties, covenants,
conditions, obligations, and warranties of Grantor in this Deed of Trust shall
be joint and several obligations of Grantor and each Grantor, if more than one,
and each Grantor's heirs, executors, administrators, personal representatives,
successors and assigns. Except as expressly limited herein, each party who
executes this Deed of Trust and each subsequent owner of the Mortgaged
Property, or any part thereof (other than Beneficiary), covenants and agrees
that it will perform, or cause to be performed, each term and covenant of this
Deed of Trust.
6.8 Severability. If any provision of this Deed of Trust
is held to be illegal, invalid, or unenforceable under present or future laws
effective while this Deed of Trust is in effect, the legality, validity, and
enforceability of the remaining provisions of this Deed of Trust shall not be
affected thereby, and in lieu of each such illegal, invalid or unenforceable
provision there shall be added automatically as a part of this Deed of Trust a
provision that is legal, valid and enforceable and as similar in terms to such
illegal, invalid or unenforceable provision as may be possible. If any of the
Indebtedness shall be unsecured, the unsecured portion of the Indebtedness
shall be completely paid prior to the payment of the secured portion of such
Indebtedness, and all payments made on account of the Indebtedness shall be
considered to xxxx been paid on and applied first to the complete payment of
the unsecured portion of the Indebtedness.
6.9 Modification or Termination. This Deed of Trust may
only be modified or terminated by a written instrument or instruments executed
by the party against whom enforcement of the modification or termination is
asserted. Any alleged modification or termination that is not so documented
shall not be effective as to any party.
6.10 Headings. The Article, Paragraph and Subparagraph
headings hereof are inserted for convenience of reference only and shall not
alter, define, or be used in construing the text of such Articles, Paragraphs
or Subparagraphs.
6.11 CHOICE OF LAW. THIS DEED OF TRUST SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF TEXAS, AND THE
LAWS OF THE UNITED STATES APPLICABLE TO TRANSACTIONS WITHIN THE STATE OF TEXAS.
6.12 ENTIRE AGREEMENT. THE LOAN DOCUMENTS CONSTITUTE THE
ENTIRE UNDERSTANDING AND AGREEMENT BETWEEN GRANTOR AND BENEFICIARY WITH RESPECT
TO THE TRANSACTIONS ARISING IN CONNECTION WITH THE INDEBTEDNESS AND SUPERSEDE
ALL PRIOR WRITTEN OR ORAL UNDERSTANDINGS AND AGREEMENTS BETWEEN GRANTOR AND
BENEFICIARY IN CONNECTION THEREWITH.
6.13 Inspection. Beneficiary or its agent may make
reasonable entries upon and inspections of the Property. Beneficiary shall
give Borrower five days' prior written notice to an inspection specifying
reasonable cause for the inspection.
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and Assignment of Rents) - Page 9
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6.14 Notices. All notices or demands by any party
relating to this Agreement or Deed of Trust shall be in writing and shall be
personally delivered or sent by registered or certified mail, postage prepaid,
return receipt requested, or by prepaid telex, telefacsimile, or telegram (with
messenger delivery specified) to Grantor, Beneficiary or Trustee, as the case
may be, at its address set forth below:
If to Grantor: 000 Xxxx Xxxxxxx Xxxxxxx
Xxxxxx, Xxxxx 00000
Attn: Xxxxx X. Xxxxxxxxx
Telefacsimile: (000) 000-0000
With copies to: Xxxxxx X. Xxxxx
Xxxxx & Xxxxxxx, L.L.P.
000 Xxxx 0xx Xxxxxx, Xxxxx 000
Xxxxx Xxxxx, Xxxxx 00000
If to Beneficiary FOOTHILL CAPITAL COOPERATION
or Trustee: 00000 Xxxxx Xxxxxx Xxxxxxxxx
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000-000
Attn: Business Finance Division Manager
Telefacsimile: (000) 000-0000
Xxxxxxxx X. Xxxxxxxx, Xx.
Xxxxxx Xxxx & Xxxxxx LLP
000 Xxxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
The parties hereto may change the address at which they are to
receive notices hereunder, by notice in writing in the foregoing manner given
to the other. All notices or demands under this Agreement shall be deemed
received on the earlier of the date of actual receipt or three (3) business
days after the deposit thereof in the mail.
6.15 Conveying or Encumbering the Mortgaged Property. If
Grantor shall voluntarily or involuntarily cause, suffer or permit any sale or
transfer of any interest of Grantor, legal or equitable, in the Mortgaged
Property or any part or portion thereof, or shall create, suffer or permit to
be outstanding any mortgage, pledge (other than mechanics' and materialmen's
liens which are bonded pursuant to Section 3.7) on the Mortgaged Property, or
security interest therein, without in each instance the prior written consent
of the Beneficiary, Beneficiary shall have the right to accelerate the
Indebtedness and to declare the same to be immediately due and payable.
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and Assignment of Rents) - Page 10
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ARTICLE 7
EVENTS OF DEFAULT
The occurrence of any one of the following shall be a default hereunder ("Event
of Default"):
7.1 Failure to Pay Principal. Grantor shall default in
the payment of principal due according to the terms hereof or of the Loan
Agreement, subject to the notice and opportunity to cure provision set forth in
the Loan Agreement.
7.2 Failure to Pay Interest or Other Amounts. Grantor
shall default in the payment of interest on advances made by Beneficiary or in
the payment of fees or other amounts payable to Beneficiary hereunder or under
any one or more of the Loan Documents, subject to the notice and opportunity to
cure provision set forth in the Loan Agreement.
7.3 Failure to Perform Covenants. Grantor shall default
in the performance or observance of any other agreements, covenants or
conditions required to be performed or observed by Grantor under the terms of
this Deed of Trust, the Loan Agreement, or any of the other Loan Documents,
subject to the notice and opportunity to cure provision, set forth in the Loan
Agreement.
7.4 False Representations. Any representation or
warranty made by Grantor in this Deed of Trust or contained in any one or more
of the Loan Documents or in any certificate or document furnished under or
pursuant to the terms of this Deed of Trust or in connection with the Loan
Agreement shall prove untrue in any material respect, subject, to the notice
and opportunity to cure provisions set forth in the Loan Agreement.
7.5 Grant of Easement, etc. Without the prior written
consent of Beneficiary, Grantor grants any easement (over than an easement
designed to service the Mortgaged Property) or dedication, or files any plat,
condominium declaration, or restriction, unless such action is contemplated by
the Loan Documents or does not affect the Mortgaged Property.
7.6 Foreclosure of Other Liens. The holder of any lien,
security interest or assignment on the Mortgaged Property institutes
foreclosure or other proceedings for the enforcement of its remedies
thereunder.
ARTICLE 8
REMEDIES
8.1 Exercise of Specific Remedies. If an Event of
Default shall occur and such Event of Default has not been cured within any
applicable cure period as provided by the Loan Agreement, Beneficiary may
exercise any one or more of the following remedies, without notice (except as
may be expressly provided for in the Loan Agreement or herein):
Deed of Trust (with Security Agreement
and Assignment of Rents) - Page 11
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(a) Acceleration. Beneficiary may declare Indebtedness
immediately due and payable, without notice, whereupon the same shall become
immediately due and payable. Grantor hereby waives notice of intent to
accelerate and notice of acceleration.
(b) Foreclosure. Beneficiary may require the Trustee to
sell all or part of the Mortgaged Property, at public auction, to the highest
bidder, for cash, at the county courthouse of the county in Texas in which such
Mortgaged Property or any part thereof is situated, between the hours of 10:00
o'clock a.m. and 4:00 o'clock p.m. on the first Tuesday of any month, after
giving notice of the time, place and terms of said sale and of the property to
be sold, by posting written notice thereof at the courthouse door of the county
in which the sale is to be made at least twenty-one (21) days preceding the
date of the sale, and if the property to be sold is in more than one county, a
notice shall be posted at the courthouse door and filed with the County Clerk
of each county in which the property is to be sold is situated. In addition,
Beneficiary shall, at least twenty-one (21) days preceding the date of sale,
serve written notice of the proposed sale by certified mail on each debtor
obligated to pay the debt secured hereby according to the records of
Beneficiary. Service of such notice shall be completed upon deposit of the
notice, enclosed in a postpaid wrapper, properly addressed to such debtor at
the most recent address as shown by the records of Beneficiary, 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. Any notice that is required or permitted to be given to
Grantor may be addressed to Grantor at Grantor's address as stated above. Any
notice that is to be given by certified mail to any other debtor may, if no
address for such other debtor is shown by the records of Beneficiary, be
addressed to such other debtor at the address of Grantor as is shown by the
records of Beneficiary. Notwithstanding the foregoing provisions of this
paragraph, notice of such sale given in accordance with the requirements of the
applicable laws of the State of Texas in effect at the time of such sale shall
constitute sufficient notice of such sale. Trustee may sell all or any portion
of the Mortgaged Property, together or in lots or parcels, and may execute and
deliver to the purchaser or purchasers of such property good and sufficient
deeds of conveyance of fee simple title with covenants of general warranty made
on behalf of Grantor, subject, however, to the Permitted Exceptions. In no
event shall Trustee be required to exhibit, present or display at any such sale
any of the personalty described herein to be sold at such sale. The Trustee
making such sale shall receive the proceeds thereof and shall apply the same as
follows: (i) first, he shall pay the reasonable expenses of Trustee and a
reasonable Trustee's fee or commission; (ii) second, he shall pay, so far as
may be possible, the Indebtedness, pursuant to the terms of the Loan Agreement;
(iii) third, he shall pay the residue, if any, to the persons legally entitled
thereto. Payment of the purchase price to Trustee shall satisfy the obligation
of the purchaser at such sale therefor, and such purchaser shall not be
responsible for the application thereof. The sale or sales by Trustee of less
than the whole of the Mortgaged Property shall not exhaust the power of sale
herein granted, and Trustee is specifically empowered to make a successive sale
or sales under such power until the whole of the Mortgaged Property shall be
sold; and if the proceeds of such sale or sales of less than the whole of the
Mortgaged Property shall be less than the aggregate of the Indebtedness and the
expenses thereof, this Deed of Trust and the lien, security interest and
assignment hereof shall remain in full force and effect as to the unsold
portion of the Mortgage Property just as though no sale or sales had been made;
provided, however, that Grantor shall never have any right to
Deed of Trust (with Security Agreement
and Assignment of Rents) - Page 12
13
require the sale or sales of less than the whole of the Mortgaged Property, but
Beneficiary shall have the right, at its sole election, to request Trustee to
sell less than the whole of the Mortgaged Property. If default is made
hereunder, the holder of the Indebtedness or any part thereof on which the
payment is delinquent shall have the option to proceed with foreclosure in
satisfaction of such item either through judicial proceedings or by directing
Trustee to proceed as if under a full foreclose, conducting the sale as herein
provided without declaring the entire Indebtedness due, and if sale is made
because of default of an installment, or a part of an installment, such sale
may be made subject to the unmatured part of the Indebtedness; and it is agreed
that such sale, if so made, shall not in any manner affect the unmatured part
of the Indebtedness, but as to such unmatured part this Deed of Trust shall
remain in full force and effect as though no sale had been made under the
provisions of this paragraph. Several sales may be made hereunder without
exhausting the right of sale for any unmatured part of the Indebtedness. At
such sale (1) Grantor hereby agrees, in its behalf and in behalf of its heirs,
executors, administrators, successors persona representatives and assigns, that
any and all recitals made in any deed of conveyance given by Trustee with
respect to the identity of Beneficiary, the occurrence or existence of any
default, the acceleration of the maturity of any of the Indebtedness, the
request to sell, the notice of sale, the giving of notice to all debtors
legally entitled thereto, the time, place, terms, and manner of sale, and
receipt, distribution and application of the money realized therefrom, or the
due and proper appointment of a substitute Trustee, and, without being limited
by the foregoing, with respect to any other act or thing having been duly done
by Beneficiary or by Trustee hereunder, shall be taken by all courts of law and
equity as prima fame evidence that the statements or recitals state facts, and
Grantor hereby ratifies and confirms every act that Trustee or any substitute
Trustee hereunder may lawfully do in the premises by virtue hereof, and (2) the
purchaser may disaffirm any easement granted, or rental, lease or other
contract made in violation of any provision of this Deed of Trust, and may take
immediate possession of the Mortgaged Property free from, and despite the terms
of, such grant of easement and rental or lease contract. Beneficiary may bid
and become the purchaser of all or any part of the Mortgaged Property at any
trustee's or foreclosure sale hereunder, and the amount of Beneficiary's
successful bid may be credited on the Indebtedness.
(c) Lawsuits. Beneficiary may proceed by a suit or suits
in equity or at law, whether for the specific performance of any covenant or
agreement herein contained or in aid of the execution of any power herein
granted, or for any foreclosure hereunder or for the sale of the Mortgaged
Property under the judgment or decree of any court or courts of competent
jurisdiction.
(d) Entry on Mortgaged Property. Upon occurrence of an
Event of Default hereunder, Beneficiary may enter into and upon and take
possession of all or any part of the Mortgaged Property, and may exclude
Grantor, and all persons claiming upon Grantor, and its or their agents or
servants, wholly or partly therefrom; and, holding the same, Beneficiary may
use, administer, manage, operate, and control the Mortgaged Property and may
exercise all rights and powers of Grantor in the name, place and stead of
Grantor, or otherwise, as the Beneficiary shall deem best; and in the exercise
of any of the foregoing rights and powers Beneficiary shall not be liable to
Grantor for any loss or damage thereby sustained unless due solely to the
willful misconduct or gross negligence of Beneficiary.
Deed of Trust (with Security Agreement
and Assignment of Rents) - Page 13
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(e) Trustee or Receiver. Beneficiary may make
application to a court of competent jurisdiction, as a matter of strict right
and without notice to Grantor or regard to the adequacy of the Mortgaged
Property for the repayment of the Indebtedness, for appointment of a receiver
of the Mortgaged Property, and Grantor does hereby irrevocably consent to such
appointment. Any such receiver shall have all the usual powers and duties of
receivers in similar cases, including the full power to rent, maintain and
otherwise operate the Mortgaged Property upon such terms as may be approved by
the court.
8.2 Tenancy at Will. In the event of a trustee's sale
hereunder and if at the time of such sale Grantor or any other party occupies
the portion of the Mortgaged Proper so sold or any part thereof, such occupant
shall immediately become the tenant of the purchaser at such sale, which
tenancy shall be a tenancy from day to day, terminable at the will of either
tenant or landlord, at a reasonable rental per day based upon the value of the
portion of the Mortgaged Property so occupied, such rental to be due and
payable daily to the purchaser. An action of forcible detainer shall lie if the
tenant holds over after a demand in writing for possession of such Mortgaged
Property.
8.3 Substitute Trustee. If, for any reason, Beneficiary
prefers to appoint a substitute Trustee hereunder, Beneficiary may, from time
to time, by written instrument, appoint one or more substitute Trustees, who
shall succeed to all the estate, rights, powers, and duties of the original
Trustee named herein. Such appointment may be executed by anyone acting in a
representative capacity, and such appointment shall be presumed to have been
executed with appropriate authority, absent proof to the contrary.
8.4 Indemnification of Trustee. Except for gross
negligence or willful misconduct, Trustee shall not be liable for any act or
omission or error of judgment. Trustee may rely on any document believed by
him in good faith to be genuine. All money received by Trustee shall, until
used or applied as herein provided, be held in trust, but need not be
segregated (except to the extent required by law), and Trustee shall not be
liable for interest thereon.
8.5 Beneficiary's Right to Perform. Upon Grantor's
failure to make a payment or perform an act required by the Loan Documents
(after giving effect to any cure period provided by the Loan Documents), then
at any time thereafter, and without notice to or demand upon Grantor and
without waiving or releasing any other right, remedy or recourse, Beneficiary
may (but shall not be obligated to) make such payment or perform such act for
the account of and at the expense of Grantor, and shall have the right to enter
upon the Mortgaged Property for such purpose and to take all such action as it
may deem necessary or appropriate.
8.6 Reimbursement of Expenditure. If Beneficiary shall
expend any money chargeable to Grantor or subject to reimbursement by Grantor
under the terms of the Loan Documents, Grantor shall repay the same to
Beneficiary immediately at the place where the Loan Agreement is payable,
together with interest thereon at the Default Rate (as defined in the Loan
Agreement).
Deed of Trust (with Security Agreement
and Assignment of Rents) - Page 14
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8.7 Other Rights. Beneficiary may exercise any and all
over rights, remedies and recourses granted in the Loan Documents and available
at law or equity (including, without limitation, those granted by the Code and
applicable to the Mortgaged Property, or any portion thereof), and same (a)
shall be cumulative and concurrent, (b) may be pursued separately, successively
or concurrently against Grantor or others obligated for the Indebtedness, or
any part thereof or against any one or more of them, or against the Mortgaged
Propped, at the sole discretion of Beneficiary, (c) may be exercised as often
as occasion therefor shall arise, it being agreed by Grantor that the exercise
of or failure to exercise any of same shall in no event be construed as a
waiver or release thereof or of ally other right, remedy or recourse, and (d)
are intended to be, and shall be, nonexclusive.
DATED AND EFFECTIVE AS OF the date first set forth above
GRANTOR:
XXXXXXXXX INDUSTRIES, L.P.,
a Texas limited partnership
By: Xxxxxxxxx Operating Corp.,
a general partner
By: /s/ XXXXX X. XXXXXXXXX
------------------------------
Name: Xxxxx X. Xxxxxxxxx
----------------------------
Title: Vice Chairman
Deed of Trust (with Security Agreement
and Assignment of Rents) - Page 15
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CALIFORNIA ALL-PURPOSE ACKNOWLEDGEMENT
================================================================================
STATE OF CALIFORNIA )
)
COUNTY OF LOS ANGELES )
On August 16, 1996 before me, Xxxxxx X. Xxxxxxxx, Notary Public, personally
appeared Xxxxx Xxxxxxxxx,
[ ] personally known to me - OR - [x] proved to me on the basis of
satisfactory evidence to be the
person whose name is subscribed to
[NOTARY STAMP] the within instrument and
acknowledged to me that he executed
the same in his authorized capacity,
and that by his signature on the
instrument the person, or the entity
upon behalf of which the person
acted, executed the instrument.
WITNESS my hand and official seal.
/s/ XXXXXX X. XXXXXXXX
-------------------------------------
SIGNATURE OF NOTARY
====================================OPTIONAL====================================
Though the data below is not required by law, it may prove valuable to persons
relying on the document and could prevent fraudulent reattachment of this form.
CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT
[ ] INDIVIDUAL
[x] CORPORATE OFFICER(S)
DEED OF TRUST/GRANT OF LIEN
------------------------------------- ------------------------------------
TITLE(S) TITLE OR TYPE OF DOCUMENT
[ ] PARTNER(S) [ ] LIMITED DEED OF TRUST (WITH ASSIGNMENT OF
RENTS AND FIXTURE FILING)
[ ] GENERAL ------------------------------------
[ ] ATTORNEY-IN-FACT NUMBER OF PAGES
[ ] TRUSTEE(S)
[ ] GUARDIAN/CONSERVATOR ------------------------------------
DATE OF DOCUMENT
[ ] OTHER:
------------------------------------- ------------------------------------
SIGNER IS REPRESENTING: SIGNER(S) OTHER THAN NAMED ABOVE
(NAME OF PERSON(S) OR ENTITY(IES))
-------------------------------------
================================================================================
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EXHIBIT A
BEING a tract of land out of the X.X. Read Survey, Abstract No. 1182, in the
City of Irving, Dallas County, Texas, described by metes and bounds as follows:
BEGINNING at a point at the intersection of the South line of Xxxxx Xxxxxxx Xx.
000 with the West line of Xxxxx Drive (a 50 feet wide street);
THENCE South 00 degrees 34 minutes 42 seconds West along said West line of
Xxxxx Drive, for a distance of 413.48 feet to a point for corner;
THENCE North 89 degrees 38 minutes 02 seconds West for a distance of 174.83
feet to a point for corner;
THENCE North 00 degrees 28 minutes 38 seconds East for a distance of 413.48
feet to a point in the South line of Xxxxx Xxxxxxx Xx. 000 for corner;
THENCE South 89 degrees 38 minutes 00 seconds East along said Xxxxx Xxxx xx
Xxxxx Xxxxxxx Xx. 000, for a distance of 175.56 feet to the PLACE OF BEGINNING.
