EXHIBIT 10.3
DEED OF TRUST, SECURITY AGREEMENT AND FINANCING STATEMENT
DATE: September 30, 1996
GRANTOR: DOCUCON, INCORPORATED ("Grantor")
XXXXXXX'S
MAILING ADDRESS: 0000 Xxxxxxxxx
Xxx Xxxxxxx, Xxxxx Xxxxxx, Xxxxx 00000
TRUSTEE: Xxxxxxxxxxx X. Xxxxxx ("Trustee")
TRUSTEE'S
MAILING ADDRESS: 000 X. Xx. Xxxx'x
Xxx Xxxxxxx, Xxxxx Xxxxxx, Xxxxx 00000
BENEFICIARY: BANK ONE, TEXAS, N.A.
BENEFICIARY'S
MAILING ADDRESS: 000 X. Xx. Xxxx'x
Xxx Xxxxxxx, Xxxxx Xxxxxx, Xxxxx 00000
For value received and to secure payment of the Note and other
Indebtedness described herein, Grantor conveys the Property to Trustee in trust.
Grantor warrants and agrees to defend the title to the Property. If Grantor
performs all the covenants of this Deed of Trust and pays the Note and other
Indebtedness herein described according to their terms, this Deed of Trust shall
have no further effect, and Beneficiary shall release it at Grantor's expense.
INDEBTEDNESS SECURED:
This conveyance is made, IN TRUST, to secure and enforce the payment of
the following Indebtedness, obligation and liability, to-wit:
1. Term Note dated of even date herewith, in the original principal amount
of $1,550,000.00, executed by Grantor and payable to the order of Beneficiary
and a Promissory Note Revolving of even date herewith, in the original principal
amount of $750,000.00, executed by Xxxxxxx and payable to the order of
Beneficiary (collectively referred to herein as the "Note").
2. The payment of all loans and future advances made by the Beneficiary to
Grantor and all other debts, obligations and liabilities of every kind and
character of Grantor now or hereafter existing in favor of the Beneficiary,
whether such debts, obligations or liabilities are direct or indirect, primary
or secondary, joint or several, fixed or contingent, and whether originally
payable to the Beneficiary or to a third party and subsequently acquired by the
Beneficiary and whether such debts, obligations and liabilities are evidenced by
a note, open account, overdraft, endorsement, surety agreement, guaranty or
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otherwise, the foregoing being sometimes collectively referred to herein as
"Other Obligations."
3. Any and all renewals and extensions of the above-described
Indebtedness, whether or not such renewals and extensions are evidenced in
writing, and the liens under this Deed of Trust being cumulative of all other
liens and security of any and every other kind or character whatsoever securing
the above-described Indebtedness.
The words "Indebtedness" and "said Indebtedness" wherever used in this
Deed of Trust shall refer to all present and future debts, obligations and
liabilities described or referred to in this and the foregoing paragraphs.
PROPERTY:
As used in the Deed of Trust, the term "Property" shall mean the
following:
4. That certain real property situated in Bexar County, Texas, and being
more particularly described in Exhibit "A" to this Deed of Trust, together with
all and singular the rights, titles, interests, servitudes, hereditaments,
prescriptions, profits, and advantages thereto in anywise belonging (all of the
foregoing hereinafter collectively referred to as the "Land").
5. Any and all buildings, structures, sidewalks, parking areas, fences and
other improvements, and any and all additions, alterations or appurtenances
thereto now or at any time hereafter placed or constructed upon or which may be
used in connection with or related to the Land or any part thereof (all of the
foregoing hereinafter collectively referred to as the "Improvements").
6. All materials, supplies, equipment, apparatus and other items now or
hereafter attached to, installed in or used, whether temporarily or permanently,
in connection with any of the Improvements, or the Land, and all renewals,
replacements, substitutions thereof and additions thereto, including but not
limited to, any and all partitions, ducts, shafts, pipes, radiators, conduits,
wiring, window screens and shades, drapes, rugs and other floor coverings,
awnings, motors, engines, boilers, pumps, transformers, generators, fans,
blowers, vents, switchboards, elevators, escalators, compressors, furnaces,
cleaning, call and sprinkler systems, fire extinguishing apparatus, water tanks,
swimming pools, heaters, ventilators, pumps, laundry, incinerators, air
conditioning and other cooling systems, water, gas and electrical equipment,
disposals, dishwashers, refrigerators and ranges, cafeteria equipment,
recreational equipment and facilities of all kinds, and water, gas, electrical,
storm and sanitary sewer facilities and all other utilities whether or not
situated in easements, all of which property and things, to the extent permitted
by law, are hereby declared to be permitted accessions to the Land (all of the
foregoing hereinafter collectively referred to as the "Fixtures").
7. All of the right, title and interest of Grantor in and to all personal
property other than fixtures, of any kind, as defined in Chapter 9 of the Texas
Business and
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Commerce Code ("UCC"), now or hereafter located upon, within or about the Land
and the Improvements, or which are or may be used in or related to the
development, financing or operation of the Property, together with all now owned
or hereafter acquired personal property, accessories and spare parts, and all
additions, replacements and substitutions therefor, and the proceeds thereof
including, but not limited to, all furniture, furnishings, equipment, machinery,
tools, vehicles, goods, general intangibles (including, but not limited to
patents and good will) insurance proceeds, accounts, contract rights, inventory,
all refundable, returnable or reimbursable fees, deposits or other funds or
evidences of credit or indebtedness deposited by or on behalf of Grantor with
any governmental agencies, boards, corporations, providers of utility services,
public or private, including, but not limited to, all refundable, returnable or
reimbursable tap fees utility deposits, commitment fees and development costs
(all of the foregoing hereinafter collectively referred to as the "Personalty").
8. All leases, subleases, licenses, concessions, contracts or other
agreements, whether written or oral, now or hereafter in effect, which grant a
possessory interest in and to or the right to use any portion of the Property or
which relate to the use or construction of the Improvements, and all other
agreements, such as utility contracts, maintenance agreements and service
contracts, which in any way relate to the use, occupancy, development,
operation, maintenance, enjoyment or ownership of the Property (all of the
foregoing hereinafter collectively referred to as the "Leases").
9. All consideration, whether money or otherwise, paid or payable by
parties to the Leases other than Grantor for using, occupying, leasing,
licensing, possessing, operating from, selling or otherwise enjoying the
Property and all rents, issues, income, profits, insurance proceeds, benefits
and advantages of every nature whatsoever that arise, accrue or are derived from
the Property, pursuant to the Leases or any renewals thereof (all of the
foregoing hereinafter collectively at times referred to as the "Rents").
10. Rights, privileges, tenements, hereditaments, rights-of-way,
easements, appendages and appurtenances in any way pertaining to any of the
above-described property, and rights, titles and interests of Grantor in and to
any streets, alleys, driveways and strips of land adjoining the Land or any part
thereof.
11. All plans, specifications, drawings, feasibility studies, cost
estimates, permits, licenses and certificates for any improvements to be placed
upon the Land, and all contracts and subcontracts relating to the construction
of any such improvements (all of the foregoing hereinafter collectively referred
to as the "Contracts").
12. Additions, substitutions, replacements and revisions of and to and
proceeds of any of the above-described property and all remainders therein.
13. Other security and collateral of any nature whatsoever, now or
hereafter given for the repayment of the Indebtedness hereby secured or the
performance and discharge of the obligations under this Deed of Trust, the Note
hereby secured, or any other document executed in connection herewith
("Obligations").
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PRIOR LIEN(S):
None
OTHER EXCEPTIONS TO CONVEYANCE AND WARRANTY:
This conveyance is made and accepted subject to the matters set forth in
Exhibit "B" attached hereto and incorporated herein for all purposes to
the extent, if any, such matters affect the Property ("Permitted
Encumbrances").
SECURITY AGREEMENT:
14. This Deed of Trust shall also constitute a security agreement under
Chapter 9 of the UCC, subject only to the Permitted Encumbrances, with respect
to the Improvements, Fixtures, Personalty, Contracts, Leases and Rents (all of
the foregoing being hereinafter at times referred to as the "Collateral") to the
extent such Chapter 9 is applicable to any such Collateral. To this end, without
limiting any of the provisions of this Deed of Trust, Grantor, as debtor, has
granted, bargained, conveyed, assigned, transferred and set over, and by these
presents do grant, bargain, convey, assign, transfer and set over unto the
Beneficiary, as secured party, a security interest in all of Grantor's right,
title and interest in and to the Collateral to secure the full and timely
payment of the Indebtedness hereby secured and performance of the Obligations
and Other Obligations.
15. Xxxxxxx agrees to execute and deliver to the Beneficiary in the form
and substance satisfactory to the Beneficiary such financing statements and such
further assurances as Beneficiary may from time to time consider necessary to
create, perfect and preserve the security interest granted herein and Grantor
shall cause such statements and assurances to be recorded and filed at such
times and places as may be required or permitted by law to create, perfect and
preserve such security interest.
16. Trustee, on Beneficiary's behalf, as well as the Beneficiary, shall
have all rights, remedies and recourses with respect to the Collateral afforded
a "secured party" by Chapter 9 of the UCC in addition and not in limitation of
the other rights, remedies and recourses afforded the Beneficiary and/or Trustee
by this Deed of Trust.
17. The security interest herein granted shall not be deemed or construed
to constitute the Trustee or the Beneficiary as a party in possession of the
Property or to obligate the Trustee or Beneficiary to lease the Property, or to
take any action, incur any expense, or perform any obligation whatsoever under
any of the Leases or otherwise.
18. Upon the occurrence of an Event of Default as provided herein, and at
any time thereafter:
a. Trustee or Beneficiary shall have, with regard to the Collateral,
the remedies provided in this Deed of Trust and in the UCC. No such remedy
granted
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by the UCC is or shall be deemed to be accepted, modified or waived in any
manner by this Deed of Trust.
b. Trustee and Beneficiary shall be entitled, in their sole
discretion, to apply the proceeds of any disposition of any of the
Collateral in the order set forth in the UCC, or, if allowed by the UCC,
in the order set forth in the body of the Deed of Trust. If the proceeds
are not sufficient to pay the Indebtedness and the Other Indebtedness in
full, Grantor shall remain liable for any deficiency.
c. Notwithstanding anything herein to the contrary, the Beneficiary
or the Trustee acting on the Beneficiary's behalf may, at its option and
to the extent permitted by applicable law, dispose of the Collateral and
other items of personal property covered by this Deed of Trust, in
accordance with the Beneficiary's rights and remedies in respect of the
Land, pursuant to the provisions of this Deed of Trust in lieu of
proceeding under the UCC.
19. Beneficiary may require Grantor to assemble the Collateral and make it
available to Beneficiary or the Trustee acting on Beneficiary's behalf at a
place to be designated that is reasonably convenient to both parties. All
expenses of retaking, holding, preparing for sale, lease or other use or
disposition, selling, leasing or otherwise using or disposing of the Collateral
and the like, which are incurred or paid by the Beneficiary, or the Trustee
acting on behalf of the Beneficiary, as authorized and permitted hereunder,
including all reasonable attorney's fees, legal expenses and costs, shall be
added to the Indebtedness and Grantor shall be liable therefor.
20. As to such portion of the Collateral which constitutes fixtures under
applicable law, this Deed of Trust shall be effective as a financing statement
when filed for record in the UCC Records in the Clerk's Office of Bexar County,
Texas, pursuant to Section 9.402(f) of the UCC. The record owner of the Land is
Grantor named in this Deed of Trust, whose mailing address for purposes of such
financing statement is:
7461 Callaghan
San Antonio, Texas 78229
GRANTOR'S OBLIGATIONS:
Grantor agrees to:
21. keep the Property in good repair and condition;
22. pay all taxes and assessments on the Property when due;
23. preserve the lien's priority as it is established in this Deed of
Trust;
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24. maintain insurance policies, in a form acceptable to Beneficiary,
including, but not limited to flood insurance in an amount and in a form which
is acceptable to Beneficiary;
25. deliver the insurance policies to Beneficiary and deliver renewals to
Beneficiary at least ten (10) days before expiration;
26. if this is not a first lien, pay all prior lien notes and abide by all
prior lien instruments;
27. deliver or cause to be delivered to Beneficiary within one hundred
twenty (120) days after the last day of each fiscal year, financial statements
of Grantor (audited by a Certified Public Account who is acceptable to
Beneficiary), as of the end of such year. Such statements shall include a
balance sheet, cash flow statement and contingent liability information and
shall be in a form acceptable to Beneficiary;
28. deliver or cause to be delivered to Beneficiary within thirty (30)
days after the last day of each quarterly period, quarterly reports summarizing
financial performance in comparison with the annual budget. Said reports shall
be certified by Grantor to be true and correct and shall be in a form acceptable
to Beneficiary;
29. deliver or cause to be delivered to Beneficiary within thirty (30)
days after the last day of each month, a monthly (i) accounts receivable aging
report, (ii) borrowing base certificate and (iii) compliance certificate
relating to the previous month. Said reports and certificates shall be certified
by Grantor to be true and correct and shall be in a form acceptable to
Beneficiary;
30. deliver or cause to be delivered to Beneficiary within forty five (45)
days after the last day of each quarterly period, quarterly 10Q reports. Said
reports and shall be certified by Grantor to be true and correct and shall be in
a form acceptable to Beneficiary;
31. maintain the following financial ratios:
Minimum current ratio 1.0/1.0
Maximum debt-to-net worth ratio 2.0/1.0
Minimum annual debt coverage ratio 1.25/1.0*
Minimum Tangible Net Worth $1,900,000.00**
*For purposes of this paragraph, "debt coverage ratio" means Net Income,
plus Depreciation, plus Amortization, plus Interest Expense, less
Dividends, DIVIDED by Current Maturities of Long Term Debt, plus Current
Portion of Capitalized Leases, plus Interest Expense.
**The minimum Tangible Net Worth which Grantor shall be required to
maintain hereunder shall increase each year the Note is in effect, by 75%
of the preceding
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year's net income. Intangibles do not include software development costs.
The term "Tangible Net Worth" has the meaning set out in the Loan
Agreement.
All other terms used herein shall have the meanings given to them by
generally accepted accounting principles consistently applied.
32. provide other financial information relating to Grantor as is
reasonably required by Beneficiary from time to time and provide access to
Grantor's books and records at such time during ordinary business hours as
Beneficiary may request;
33. provide notice to Beneficiary within ten (10) days after receipt of
any notice of default, notice of acceleration, posting for foreclosure or notice
of any legal action regarding any asset or obligation of Grantor;
34. limit its annual capital expenditures to $500,000.00 per year, unless
prior written approval has been given by Beneficiary, such approval not to be
unreasonably withheld;
35. notify Beneficiary of any claim with a potential liability in excess
of $75,000.00; and
36. comply with any and all other obligations imposed on Grantor by the
Note, that certain Loan Agreement dated of even date herewith entered into by
and between Grantor and Beneficiary ("Loan Agreement"), that certain Loan
Commitment Letter dated September 11, 1996, by and between Grantor and
Beneficiary ("Loan Commitment") and all other documents evidencing, securing,
governing, guaranteeing and/or pertaining to the Note and any other documents
securing the Indebtedness ("Loan Documents").
ADDITIONAL OBLIGATIONS OF GRANTOR:
Xxxxxxx agrees not to:
-- make any investments in or loans or advances to any company, person, or
entity, except in the ordinary course of Grantor's business;
-- pay any cash dividends unless approved by Beneficiary;
-- merge or consolidate with any corporation, or enter into any
partnership, joint venture, or acquire any stock or ownership interest in all or
substantially all of the assets of any other entity unless approved by the
Beneficiary;
-- sell, transfer, or otherwise dispose of any of its assets, or enter
into any arrangement accomplishing substantially the same, except for
transactions which occur in the Grantor's ordinary course of business;
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-- incur additional indebtedness except for payables or accruals incurred
in the ordinary course of Xxxxxxx's business; and
-- pledge assets, guarantee indebtedness of others, nor permit any liens
on its assets.
BENEFICIARY'S RIGHTS:
1. Beneficiary may appoint in writing a substitute or successor trustee,
succeeding to all rights and responsibilities of Trustee.
2. If the proceeds of the Note are used to pay any debt secured by prior
liens, Beneficiary is subrogated to all of the rights and liens of the holders
of any debt so paid.
3. Beneficiary, at its election, may apply any proceeds received under the
insurance policies either to reduce the Note or, as long as Grantor is not in
default hereunder, to repair or replace damaged or destroyed improvements
covered by the policy.
4. If Grantor fails to perform any of Grantor's Obligations, Beneficiary
may perform those Obligations and be reimbursed by Grantor on demand at the
place where the Note is payable for any sums so paid, including attorney's fees,
plus interest on those sums from the dates of payment at the rate stated in the
Note for matured, unpaid amounts. The sum to be reimbursed shall be secured by
this Deed of Trust.
5. If an Event of Default occurs hereunder, Beneficiary may:
a. declare the unpaid principal balance and earned interest on the
Note immediately due and payable;
b. request Trustee to foreclose this lien, in which case Beneficiary
or Beneficiary's agent shall give notice of the foreclosure sale as
provided by the Texas Property Code as then amended; and
c. purchase the Property at any foreclosure sale by offering the
highest bid and then have the bid credited on the Note.
TRUSTEE'S DUTIES:
If requested by Beneficiary to foreclose this lien, Trustee shall:
6. either personally or by agent give notice of the foreclosure sale as
required by the Texas Property Code as then amended;
7. sell and convey all or part of the Property to the highest bidder for
cash with a general warranty binding Grantor, subject to prior liens and to
other exceptions to conveyance and warranty; and
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8. from the proceeds of the sale, pay, in this order:
a. expenses of foreclosure, including a commission to Trustee of 5%
of the bid;
b. to Beneficiary, the full amount of principal, interest,
attorney's fees, and other charges due and unpaid;
c. any amounts required by law to be paid before payment to Grantor;
and
d. to Grantor, any balance.
EVENT OF DEFAULT:
As used herein, the term "Event of Default" shall include the following:
9. Any default in the payment of any installment, principal or interest,
of the Note or of any other Indebtedness hereby secured, in accordance with the
terms thereof;
10. Any breach of any of the covenants herein contained or contained in
the Note or in the Loan Documents, including, but not limited to, the Loan
Agreement or the Loan Commitment.;
11. Any failure to perform any of the Obligations to be performed, after
the expiration of all applicable grace or curative periods without cure of such
failure;
12. The Grantor admitting in writing its inability to pay its debts as
they mature or an administrative or judicial order of dissolution or
determination of insolvency being entered against the Grantor; or the Grantor
applying for, consenting to, or acquiescing in the appointment of a trustee or
receiver for the Grantor or any property thereof, or the Grantor making a
general assignment for the benefit of creditors; or, in the absence of such
application, consent or acquiescence, a trustee or receiver being appointed for
the Grantor or for a substantial part of its property and not being discharged
within sixty (60) days; or any bankruptcy, reorganization, debt arrangement, or
other proceeding under any bankruptcy or insolvency law, or any dissolution or
liquidation proceeding being instituted by or against the Grantor, and, if
involuntary, being consented to or acquiesced in by the Grantor or remaining for
sixty (60) days undismissed;
13. Any warranty or representation made by the Grantor herein or in the
Loan Documents proving to have been false or misleading in any material respect
when made, or any schedule, certificate, financial statement, report, notice, or
other writing furnished by the Grantor to the Beneficiary proving to have been
false or misleading in any material respect when made or delivered;
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14. Any material change following the date of this agreement in the
assets, net worth or credit standing of Grantor, or any judgment against Grantor
which in Beneficiary's judgment would materially and adversely affect the credit
standing of the Grantor or the ability of Grantor to perform under the Loan
Documents;
SALE OR OTHER DISPOSITION:
If all or any part of the Property or any interest therein or any rents or
income therefrom is sold; transferred; conveyed; assigned; mortgaged or
otherwise encumbered or otherwise disposed of by Grantor without Beneficiary's
prior written consent, any such event shall constitute an "Event of Default" as
provided in this Deed of Trust, and Beneficiary may, at its option, declare the
entire principal indebtedness hereby secured with all interest accrued thereon
and all other sums hereby secured (hereinafter referred to as the "Entire
Indebtedness") immediately due and payable and in the event of default in the
payment of the Entire Indebtedness when declared due, Beneficiary may, at its
option, direct the Trustee, or his successor or substitute, to sell the Property
as herein provided and may exercise any and all other rights and remedies
permitted herein. Any waiver by Beneficiary of or any forbearance by Beneficiary
to exercise its option to accelerate with respect to any particular sale or
transfer shall not be deemed to constitute a waiver of such option with respect
to any other sale or transfer.
LOAN PURPOSE:
The Note hereby secured is given in order to refinance the Property and to
provide financing for the working capital needs of the Grantor.
REPRESENTATIONS AND WARRANTIES:
Grantor makes the following representations and warranties concerning the
Property and the use of the Property:
15. That there has been no storage, production, transportation, disposal,
treatment, release or threatened release of any solid waste, as that term is
defined by the Texas Solid Waste Disposal Act, as amended, Tex. Health & Safety
Code, Ch. 361 (Xxxxxx Pamphlet 1989), or the Resource Conservation and Recovery
Act, 42 U.S.C. ss. 6901 ET. SEQ. ("Solid Waste"), or any hazardous waste, as
that term is defined by the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980, as amended, 42 U.S.C. ss. 9601 ET. SEQ. ("Hazardous
Waste"), or any substance subject to regulation under the Toxic Substance
Contract Act, 15 U.S.C. ss. 2601 ET. SEQ. ("Regulated Substance"), or any other
pollutants or contaminants on, in, upon or under the Property.
16. That, to the best of Xxxxxxx's knowledge, there has been no storage,
disposal, production, treatment, transportation, release or threatened release
of any Solid Waste, Hazardous Waste, Regulated Substance or any other pollutants
or contaminants on adjacent or neighboring properties to the Property which
through soil or groundwater migration could have come to be located on the
Property.
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17. To the full extent permitted by applicable law, Grantor and each
Guarantor hereby agree to defend, indemnify and hold harmless Beneficiary and
its directors, officers, employees, attorneys and agents (each an "Indemnified
Party") from and against any and all loss, cost, expenses or liability
(including attorneys' fees and court costs) incurred by any Indemnified Party in
connection with or otherwise arising out of any and all claims or proceedings
(whether brought by a private party, governmental agency or otherwise) for
bodily injury, property damage, abatement, remediation, environmental damage or
impairment or any other injury or damage resulting from or relating to any
hazardous or toxic substance or contaminated material located upon, migrating
into, from or through or otherwise relating to the Property (whether or not the
release of such materials was caused by Grantor, a tenant or subtenant of
Grantor, a prior owner, a tenant or subtenant of any prior owner or any other
party and whether or not the alleged liability is attributable to the handling,
storage, generation, transportation or disposal of such substance or the mere
presence of the substance on the Property), which any Indemnified Party may
incur due to the making of the loan evidenced by the Note, the exercise of any
of its rights under this Deed of Trust or any of the Loan Documents, or
otherwise. For the purposes of the indemnity contained in this paragraph,
hazardous or toxic substances or contaminated material include but are not
limited to asbestos, oil and petroleum products and those substances within the
scope of all federal, state and local environmental laws and ordinances,
including the Resource Conservation and Recovery Act, the Comprehensive
Environmental Response, Compensation and Liability Act and the Superfund
Amendment and Reauthorization Act of 1986. The provisions of this paragraph
shall survive any exercise of the power of sale granted in this Deed of Trust,
any foreclosure of the liens created by this Deed of Trust or conveyance in lieu
of foreclosure and the repayment of the indebtedness and the discharge and
release of this Deed of Trust and other Loan Documents.
GENERAL PROVISIONS:
18. If any of the Property is sold under this Deed of Trust, Grantor shall
immediately surrender possession to the purchaser. If Grantor fails to do so,
Grantor shall become a tenant at sufferance of the purchaser, subject to an
action for forcible detainer.
19. Recitals in any Trustee's deed conveying the Property will be presumed
to be true.
20. Proceeding under this Deed of Trust, filing suit for foreclosure, or
pursuing any other remedy will not constitute an election of remedies.
21. This lien shall remain superior to liens later created even if the
time of payment of all or part of the Note is extended or part of the Property
is released.
22. If any portion of the Note cannot be lawfully secured by this Deed of
Trust, payments shall be applied first to discharge that portion.
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23. All judgments, decrees or awards now or hereafter made for injury or
damage to the Property, or awards, settlements or other compensation now or
hereafter made by any Governmental Authority (as hereinafter defined) including
those for any variation of, or change of grade in, any streets affecting the
Land or the Improvements, are hereby assigned in their entirety to the
Beneficiary, who shall apply same in such manner as the Beneficiary may elect.
Beneficiary, at its election, may apply any proceeds received hereunder either
to reduce the Note or, as long as Grantor is not in default hereunder, to repair
or replace damage or destruction of the Property. Beneficiary or the Trustee on
behalf of the Beneficiary is hereby authorized, in the name of Grantor, to
execute and deliver valid acquittance for, and to appeal from, any such award,
judgment or decree. As used herein, the term "Governmental Authority" shall mean
any and all governmental or quasi-governmental entities of any nature
whatsoever, whether federal, state, county, district, city or otherwise, and
whether now or hereafter in existence. Beneficiary shall not be liable for
failure to collect or to exercise diligence in collecting any such sums.
24. Grantor assigns to Beneficiary absolutely, all present and future rent
and other income and receipts from the Property. Grantor warrants the validity
and enforceability of the assignment. Grantor may as Beneficiary's licensee
collect rent and other income and receipts as long as Grantor is not in default
under the Note or this Deed of Trust. Grantor will apply all rent and other
income and receipts, except receipts for real property tax or interest earned
pursuant to property sales contracts, to payment of the Note and performance of
this Deed of Trust. If Grantor defaults in payment of the Note or performance of
this Deed of Trust, Beneficiary may terminate Grantor's license to collect and
then as Grantor's agent may rent the Property if it is vacant and collect all
rent and other income and receipts. Beneficiary neither has nor assumes any
obligations as lessor or landlord with respect to any occupant of the Property.
Beneficiary may exercise Beneficiary's rights and remedies under this paragraph
without taking possession of the Property. Beneficiary shall apply all rent and
other income and receipts collected under this paragraph first to expenses
incurred in exercising Beneficiary's rights and remedies and then to Grantor's
obligations under the Note and this Deed of Trust in the order determined by
Beneficiary. Beneficiary is not required to act under this paragraph, and acting
under this paragraph does not waive any of Beneficiary's other rights or
remedies. If Grantor becomes a voluntary or involuntary bankrupt, Beneficiary's
filing a proof of claim in bankruptcy will be tantamount to the appointment of a
receiver under Texas law.
25. Interest on the indebtedness secured by this Deed of Trust shall not
exceed the maximum amount of nonusurious interest that may be contracted for,
taken, reserved, charged, or received under law; any interest in excess of that
maximum amount shall be credited on the principal of the indebtedness or, if
that has been paid, refunded. On any acceleration or required or permitted
prepayment, any such excess shall be canceled automatically as of the
acceleration or prepayment or, if already paid, credited on the principal of the
indebtedness or, if the principal of the indebtedness has been paid, refunded.
This provision overrides other provisions in this and all other instruments
concerning the indebtedness.
26. When the context requires, singular nouns and pronouns include the
plural.
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27. The term "Note" includes all sums secured by this deed of trust.
28. This Deed of Trust shall bind, inure to the benefit of, and be
exercised by successors in interest of all parties.
29. If Grantor and Borrower are not the same person, the term "Grantor"
shall include Borrower.
30. If there shall be more than one Grantor, each shall be jointly and
severally liable for all obligations and liabilities of Grantor under this Deed
of Trust.
31. THIS WRITTEN DEED OF TRUST REPRESENTS THE FINAL AGREEMENT BETWEEN
GRANTOR AND BENEFICIARY AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS BETWEEN GRANTOR AND BENEFICIARY.
EXECUTED as the ________ day of __________________, 1996.
GRANTOR:
DOCUCON, INCORPORATED
By:
Name:
Its:
STATE OF TEXAS ss.
ss.
COUNTY OF BEXAR ss.
This instrument was acknowledged before me on the _____ day of
______________, 1996, by ___________________, ________________ of Docucon,
Incorporated, on behalf of said corporation.
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Notary Public, State of Texas
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