EXHIBIT 10.17
After recording return to:
William Johnson
Nathan Sommers Lippman Jacobs & Gorman
2800 Post Oak Blvd., 61st Floor
Houston, Texas 77056
DEED OF TRUST, SECURITY AGREEMENT, ASSIGNMENT OF RENTS
AND FINANCING STATEMENT
STATE OF TEXAS )
) KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF HARRIS )
THIS DEED OF TRUST, SECURITY AGREEMENT, ASSIGNMENT OF RENTS AND
FINANCING STATEMENT is dated as of September 10, 2003, by OYOG OPERATIONS, LP, a
Texas limited partnership, whose address is 12750 South Kirkwood, Suite 200,
Stafford, Texas 77477, to Ben H. Riggs of Harris County, Texas, as Trustee, for
the benefit of COMPASS BANK, with offices at 24 Greenway Plaza, Suite 1601,
Houston, Texas, 77046, as follows:
A. DEFINITIONS. The following terms shall have the defined meaning ascribed
to such terms, as set forth below:
1. "Beneficiary" shall mean Compass Bank, as well as any subsequent
holder or holders of the Note (as defined below).
2. "Claims" shall mean all liabilities, actions, demands,
penalties, losses, costs or expenses (including reasonable consultants' fees,
reasonable investigation and reasonable laboratory fees, reasonable attorneys'
fees, expenses and remedial costs), suits, costs of any settlement or judgment
and claims of any kind.
3. "Code" shall mean the Texas Business and Commerce Code, as now
written or as hereafter amended or succeeded.
4. "Deed of Trust" shall mean this Deed of Trust, Security
Agreement, Assignment of Rents and Financing Statement, as the same may be
amended, modified or supplemented from time to time.
5. "Event of Default" shall mean the occurrence at any time and
from time to time of any Event of Default as defined in the Note.
6. "Fixtures" shall mean all materials, supplies, equipment,
apparatus and other items now or hereafter attached to, installed in or used
(temporarily or permanently) in connection
with any of the Improvements (as defined below) or the Land (as defined below),
and all renewals, replacements, and substitutions thereof and additions thereto,
including, without limitation, any and all partitions, ducts, shafts, pipes,
radiators, conduits, wiring, window screens and shades, drapes, rugs and other
floor coverings, awnings, motors, engines, boilers, stokers, pumps, dynamos,
transformers, generators, fans, blowers, vents, switchboards, elevators, mail
conveyors, escalators, compressors, furnaces, cleaning, call and sprinkler
systems, fire extinguishing apparatus, water tanks, heating, ventilating,
plumbing, laundry, incinerating, air conditioning and air cooling systems,
water, gas and electric equipment, disposals, dishwashers, washers, dryers,
refrigerators and ranges, cafeteria equipment, and recreational equipment and
facilities of all kinds, all of which property and things are hereby declared to
be permanent accessions to the Land, excluding, however, trade fixtures not
necessary for the use and enjoyment of the Improvements.
7. "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.
8. "Grantor" shall mean the party or parties, whether one or more,
who execute this Deed of Trust and who are identified first in the initial
paragraph of this Deed of Trust, as well as the successors, assigns, heirs and
legal representatives of such party or parties.
9. "Impositions" shall mean all rates and charges (including
deposits), insurance, taxes (both realty and personalty), water, gas, sewer,
electricity, telephone and other utilities any easement, license or agreement
maintained for the benefit of the Property, and all other charges, and any
interest, costs or penalties with respect thereto, of any nature whatsoever
which may now or hereafter be assessed, levied or imposed upon the Property or
the Rents (as defined below) or the ownership, use, occupancy or enjoyment
thereof.
10. "Improvements" shall mean any and all buildings, parking areas
and other improvements, and any and all additions, alterations, or appurtenances
thereto, now or at any time hereafter placed or constructed upon the Land or any
part thereof.
11. "Land" shall mean the real estate (or interest therein)
described in Exhibit "A", attached hereto and incorporated herein by this
reference, all Improvements and Fixtures, and all rights, titles and interests
appurtenant thereto.
12. "Leases" shall mean all leases (including, oil, gas and other
mineral leases), subleases, licenses, concessions, contracts or other agreements
(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.
13. "Legal Requirements" shall mean any and all of the following
that may now or hereafter be applicable to Grantor or the Property: judicial
decisions, statutes, rulings, rules, regulations, permits, certificates or
ordinances of any Governmental Authority; Grantor's Bylaws and Articles of
Incorporation, Agreement of Partnership, Limited Partnership, or Joint Venture,
Trust
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Declarations or other agreements pertaining to Grantor's business entity;
restrictions of record; and other written agreements or promises enforceable by
Governmental Authority of any nature.
14. "Loan Documents" shall mean the Note, this Deed of Trust and all
promissory notes, security agreements, deeds of trust, assignments, guaranties,
and other instruments, documents, and agreements executed and delivered pursuant
to or in connection with the Note, or this Deed of Trust, as such instruments,
documents, and agreements may be amended, modified, renewed, extended, or
supplemented from time to time.
15. "Note" shall mean collectively (a) that certain promissory note,
dated September 10, 2003, in the original principal amount of $3,040,000.00,
maturing on September 1, 2010, executed by Grantor and payable to the order of
Beneficiary, and (b) all extensions, renewals and modifications thereof and all
other notes given in substitution therefor.
16. "Obligations" shall mean: (a) the obligations and indebtedness
of Grantor to Beneficiary evidenced by the Note;
(b) the obligations and indebtedness of Grantor to Beneficiary under
the Loan Documents;
(c) all future advances by Beneficiary to Grantor pursuant to the
Loan Documents;
(d) all reasonable costs and expenses, including, without
limitation, all reasonable attorneys' fees and legal expenses, incurred by
Beneficiary to preserve and maintain the lien created hereby, collect the
obligations herein described, and enforce this Deed of Trust; and
(e) all extensions, renewals, and modifications of any of the
foregoing and all promissory notes given in renewal, extension, modification or
substitution of any of the foregoing.
17. "Obligated Party" shall mean any guarantor, surety, endorser,
partner of Grantor or other person that guarantees or secures payment or
performance of any portion of the Obligations or otherwise directly or
indirectly is obligated, primarily or secondarily, for the payment or
performance of any portion of the Obligations.
18. "Permitted Encumbrances" shall mean those encumbrances listed on
Exhibit "B" hereto.
19. "Property" shall mean the Land, Improvements, and Fixtures,
together with all or any part of, and any interest in, the following: rights,
privileges, tenements, hereditaments, rights-of-way, easements, appendages, and
appurtenances in any way pertaining thereto, and rights, titles, and interests
of Grantor in and to any streets, ways, alleys, strips of land adjoining the
Land or any part thereof; additions, substitutions, replacements and revisions
thereof and thereto and all reversions and remainders therein; and other
security and collateral of any nature whatsoever, now or hereafter given for the
payment, performance and discharge of the Obligations.
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20. "Rents" shall mean all consideration, whether money or
otherwise, paid or payable for the use or occupancy of the Property, including,
without limitation, the proceeds of all hydrocarbons or other minerals produced
from the Property and all delay rentals and bonuses from any oil, gas or other
mineral lease.
21. "Trustee" shall mean the party identified second in the initial
paragraph of this Deed of Trust, and his or its substitutes, successors and
assigns.
B. GRANT. To secure the full and timely payment and performance of the
Obligations, and in consideration of the sum of TEN AND NO/100 DOLLARS ($10.00)
and other valuable consideration in hand paid by Beneficiary to Grantor, the
receipt and legal sufficiency of which are hereby acknowledged, Grantor has
GRANTED, BARGAINED, ASSIGNED, SOLD and CONVEYED, and by these presents does
GRANT, BARGAIN, ASSIGN, SELL and CONVEY, unto Trustee the Property in trust
hereunder, for the use and benefit of Beneficiary, TO HAVE AND TO HOLD the
Property unto Trustee forever.
C. WARRANTIES, REPRESENTATIONS, COVENANTS AND OTHER AGREEMENTS. Grantor
unconditionally warrants, represents, covenants and agrees that:
1. The Loan Documents to which Grantor is a party are legal, valid
and binding obligations of Grantor, enforceable against Grantor in accordance
with their terms, and the execution and delivery of, and performance under, the
Loan Documents: are within Grantor's powers and have been duly authorized by all
requisite action (corporate, partnership, trust or otherwise); have received all
requisite approval by applicable Governmental Authorities; and will not violate,
conflict with, breach or constitute a default under, any Legal Requirement or
result in the imposition of any lien, charge or encumbrance of any nature upon
any of Grantor's assets, except as contemplated in the Loan Documents.
2. Grantor has good and indefeasible title to the Land,
Improvements and Fixtures, free and clear of any liens, encumbrances, security
interests or adverse claims except for Permitted Encumbrances. This Deed of
Trust shall constitute a valid, subsisting, first lien on the Land, Improvements
and Fixtures and a valid, subsisting, perfected and prior security interest in
and to the Personalty and Leases subject only to Permitted Encumbrances, all in
accordance with the terms hereof.
3. The Property forms no part of any property owned, used or
claimed by Grantor as a residence or business homestead, is not exempt from
forced sale under the laws of the State of Texas, and Grantor hereby disclaims
and renounces all and every claim to the Property as a homestead.
4. Grantor is now solvent, and no bankruptcy or insolvency
proceedings are pending or contemplated by or against any of them, and all
reports, statements, cost estimates and other data, furnished by or on behalf of
it are true and correct.
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5. Grantor will promptly and fully comply with all present and
future Legal Requirements and Leases, and all Improvements included or to be
included in the Property comply or will comply with all Legal Requirements.
6. Grantor will duly and punctually: pay and perform the
Obligations, as and when called for in the Loan Documents; and cause each of the
Impositions to be paid and discharged not later than the due dates thereof and
furnish Beneficiary with evidence of such payment.
7. Grantor will cause the Property to be maintained and operated in
first-class order and condition, and will make all interior and exterior
repairs, replacements, additions, improvements and alterations thereof and
thereto, both structural and non-structural, which are reasonably appropriate to
keep same in such first-class order and condition.
8. Grantor will keep the Property insured against fire, tornado,
flood (if the Property is located in an identified "flood hazard area", in which
flood insurance has been made available, pursuant to the National Flood
Insurance Act of 1968), hail, explosion and such other risks, and in such
amounts and with such companies, all as may be acceptable to Beneficiary, with
loss made payable to Beneficiary by mortgage clauses of standard form. Such
policies of insurance shall be delivered to Beneficiary promptly as issued,
containing written undertakings from such insurance companies to provide
Beneficiary with at least thirty (30) days written notice prior to cancellation
of any such policy. All renewal and substitute policies of insurance shall be
delivered at the office of Beneficiary, with evidence of premiums paid, at least
fifteen (15) days before termination of any existing policies. In case of loss,
Beneficiary, at its option, shall be entitled to receive and retain the proceeds
of the insurance policies, applying the same against the Obligations or to apply
such proceeds to the repair or restoration of the Improvements. If any loss
shall occur at any time when Grantor shall be in default as to the performance
of this covenant, Beneficiary shall nonetheless be entitled to the benefit of
all insurance held by or for Grantor, to the same extent as if it had been made
payable to Beneficiary.
9. Upon request from time to time and at any time during the
existence of an Event of Default, Grantor will deposit with Beneficiary each
month in advance a monetary sum estimated by Beneficiary to equal on a monthly
basis all or such portion of the Impositions as Beneficiary may require. At
least thirty (30) days prior to the date on which any tax or insurance premium
must be paid to prevent delinquency thereof, Grantor will, on the request of
Beneficiary, deliver to Beneficiary a statement or statements showing the amount
of tax or premium required to be paid and the concern or authority to which same
is payable and will, at the same time, deposit with Beneficiary such amount as
will, when added to the amount of such deposits previously made and then
remaining available for the purpose, be sufficient to pay such insurance or tax
obligations. Beneficiary shall have the right (but not the obligation) to apply
any or all of the foregoing deposits in payment of such insurance, tax and other
Impositions.
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10. Grantor will duly and punctually perform and comply with all
representations, warranties, covenants and agreements binding upon it under the
Leases, not voluntarily terminate or waive its rights under any of the Leases,
use all reasonable efforts to maintain each of the Leases in force and effect
during the full term thereof, and appear in and defend any action or proceeding
in any manner connected with any of the Leases.
11. Grantor will permit Trustee or Beneficiary, and their agents,
attorneys, representatives and employees, to enter upon and inspect the Property
at all reasonable times and intervals.
12. Grantor will indemnify, defend and hold Beneficiary harmless
from any action, proceeding or Claim affecting the Property or the Loan
Documents or the lien or security interests created thereby. Further, Grantor
will notify Beneficiary, in writing, promptly of the commencement of any legal
proceedings affecting the Property, or any part thereof, and will take such
action as necessary to preserve Beneficiary's rights affected thereby; and
Beneficiary may, at its election, take such action in behalf of and in the name
of Grantor, and at Grantor's expense if Grantor fails to promptly do so.
13. Grantor will promptly pay all debts and liabilities of any
character, including, without limitation, all debts and liabilities for labor,
material and equipment incurred in the construction, operation or development of
the Property, and will complete in a good and workmanlike manner any
Improvements that may be constructed or repaired thereon.
14. Upon reasonable request from time to time and at any time,
Grantor will promptly correct any defect, error or omission, which may be
discovered in the contents of this Deed of Trust or the Loan Documents, and will
execute and deliver any and all additional instruments as may be reasonably
requested by Beneficiary to correct such defect, error or omission or to
identify any additional properties which are or become subject to this Deed of
Trust.
15. Grantor will give immediate written notice to Beneficiary of any
condemnation proceeding or casualty loss affecting the Property and in each such
instance, afford Beneficiary an opportunity to participate in any such
proceeding or in the settlement of any awards thereunder.
16. Grantor will not use or occupy, or permit any use or occupancy
of, the Property in any manner which violates any Legal Requirements, may be
dangerous, constitutes a public or private nuisance, or makes void or voidable
any of the Leases or any insurance on the Property.
17. Grantor will not permit any waste or deterioration of any part
of the Property, any alterations or additions to the Property of a material
nature, or any of the Fixtures or Personalty to be removed at any time from the
Land or Improvements unless the removed item is removed temporarily for
maintenance and repair or, if removed permanently, is replaced by an article of
at least equal suitability and value, and owned by Grantor free and clear of any
other lien or security interest.
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18. Grantor will not, without the prior written consent of
Beneficiary create, place or permit to be created or placed, or allow to remain,
any mortgage, pledge, lien (statutory, constitutional or contractual), security
interest, encumbrance or charge, or conditional sale or other title retention
agreement other than Permitted Encumbrances, regardless of whether same are
expressly subordinate to the liens and security interests of the Loan Documents,
with respect to the Property, or sell, lease, exchange, assign, convey, transfer
possession of or otherwise dispose of all or any portion of the Property, or any
interest therein, but if ownership of the Property or any part thereof or
interest therein becomes vested in any person or entity other than Grantor,
Beneficiary or any other holder of the Obligations may, without notice to
Grantor, deal with such successor or successors in interest with reference to
this Deed of Trust and the Obligations in the same manner as with Grantor
without in any way discharging Grantor or any Obligated Party from the
Obligations. Without limiting the right of Beneficiary to withhold its consent
or to make other requirements prior to granting its consent, Beneficiary may
require evidence satisfactory to Beneficiary that transferee is creditworthy and
has such management ability as Beneficiary shall deem in its sole discretion to
be necessary and may require transferee to execute such written modification and
assumption agreements with regard to the Loan Documents as Beneficiary shall
deem necessary or desirable, including, without limitation, provisions
increasing the interest rate on the Note. No transfer of the Property, no
forbearance by Beneficiary and no extension of the time for the payment or
performance of the Obligations granted by Beneficiary shall release, discharge
or affect in any way Grantor's or any Obligated Party's liability hereunder.
19. Environmental representations and notification requirements are
contained in the Environmental Indemnity Agreement between Beneficiary and
Grantor, attached hereto as Exhibit "C" (the "Environmental Indemnity").
D. DEFAULT AND FORECLOSURE. To the fullest extent permitted in equity or at
law, by statute or otherwise:
1. If an Event of Default shall occur, Beneficiary may, at
Beneficiary's sole election and by or through Trustee or otherwise, exercise any
or all of the following:
(a) Declare all unpaid amounts under the Note and any other
unpaid portion of the Obligations immediately due and payable, without
further notice, presentment, protest, demand or action of any nature
whatsoever (each of which is hereby expressly waived by Grantor),
whereupon the same shall become immediately due and payable.
(b) Enter upon the Property and take exclusive possession
thereof and of all books, records and accounts relating thereto, and, if
necessary to obtain such possession, Beneficiary may invoke any and all
legal remedies to dispossess Grantor, including specifically one or more
actions for forcible entry and detainer, trespass to try title and writ
of restitution.
(c) Hold, lease, manage, operate or otherwise use or permit
the use of the Property, either itself or by other persons, firms or
entities, in such manner, for such time and upon such other terms as
Beneficiary may deem prudent under the circumstances
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(making such repairs, alterations, additions and improvements thereto
and taking such other action from time to time as Beneficiary shall deem
necessary or desirable), and apply all Rents collected in connection
therewith in accordance with the provisions of Paragraph 7 of this
Section D.
(d) Sell or offer for sale the Property in such portions,
order and parcels as Beneficiary may determine, with or without having
first taken possession of same, to the highest bidder for cash at public
auction. Such sale shall be made at the location designated by the
commissioner's court of the county where the Land is situated pursuant
to V.T.C.A. Property Code Section 51.002 or if no such designation has
been made, at the courthouse door of the county where the Land is
situated (or if the Land is situated in more than one county, then the
Property shall be sold at the designated location or the courthouse door
of any of such counties as designated in the notices of sale provided
for herein) on the first Tuesday of any month between 10:00 A.M. and
4:00 P.M. after giving adequate legal notice of the time, place and
terms of sale, by posting or causing to be posted written or printed
notices thereof for at least twenty-one (21) consecutive days preceding
the date of said sale at the courthouse door of the foregoing county,
and if the Land is situated in more than one county, one notice shall be
posted at the courthouse door of each county in which the Land is
situated, and by Beneficiary serving written notice of such proposed
sale on each debtor obligated to pay the Obligations, at least
twenty-one (21) days preceding the date of said sale by certified mail
at the most recent address for such parties in the records of
Beneficiary, or by accomplishing all or any of the aforesaid in such
manner as permitted or required by V.T.C.A. Property Code Section 51.002
(as now written or as hereafter amended or succeeded) relating to the
sale of real estate and/or by Chapter 9 of the Code relating to the sale
of collateral after default by a debtor, or by any other present or
subsequent laws. At any such sale (i) Trustee shall not be required to
have physically present, or to have constructive possession of, the
Property (Grantor hereby covenants and agrees to 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 thereof
as completely as if the same had been actually present and delivered to
purchaser at such sale; (ii) each instrument of conveyance executed by
Trustee shall contain a general warranty of title, binding upon Grantor;
(iii) each and every recital contained in any instrument of conveyance
made by Trustee shall conclusively establish the truth and accuracy of
the matters recited therein, including, without limitation, nonpayment
of the Obligations, advertisement and conduct of such sale in the manner
provided herein and otherwise by law and by appointment of any successor
Trustee hereunder; (iv) any and all prerequisites to the validity of
such sale shall be conclusively presumed to have been performed; (v) the
receipt of Trustee or of such other party making the sale shall be a
sufficient discharge to the purchaser for his purchase money and no such
purchaser, or his 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
thereof; (vi) Grantor shall be completely and irrevocably divested of
all of its 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 both at law
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and in equity against Grantor, and against any and all other persons
claiming or to claim the property sold or any part thereof; and (vii)
Beneficiary may be a purchaser at any such sale.
(e) Upon, or at any time after, commencement of foreclosure
of the lien and security interest provided for herein, or any legal
proceedings hereunder, 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 Property for the repayment of the
Obligations, for appointment of a receiver of the 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.
(f) Exercise any and all other rights, remedies and
recourses granted under the Loan Documents or as may be now or hereafter
existing in equity or at law, by virtue of statute or otherwise.
2. Should the Property be sold in one or more parcels as permitted
by Paragraph l(d) of this Section D, the right of sale arising out of any Event
of Default shall not be exhausted by any one or more such sales, but other and
successive sales may be made until all of the Property has been sold or until
the Obligations have been fully satisfied.
3. All rights, remedies and recourses of Beneficiary granted in the
Loan Documents or otherwise available at law or equity shall be cumulative and
concurrent, may be pursued separately, successively or concurrently against
Grantor or any Obligated Party, or against the Property, or against any one or
more of them, at the sole discretion of Beneficiary, may be exercised as often
as occasion therefor shall arise, it being agreed by Grantor that the exercise
or failure to exercise any of same shall in no event be construed as a waiver or
release thereof or of any other right, remedy or recourse, and shall be
non-exclusive.
4. Beneficiary may release, regardless of consideration, any part
of the Property without, as to the remainder, in any way impairing, affecting,
subordinating or releasing the lien or security interests evidenced by the Loan
Documents or affecting the obligations of Grantor or any Obligated Party to pay
or perform, as their interests may appear, the Obligations. For payment of the
Obligations, Beneficiary may resort to any of the security therefor in such
order and manner as Beneficiary may elect. No security heretofore, herewith or
subsequently taken by Beneficiary shall in any manner impair or affect the
security given by the Loan Documents, and all security shall be taken,
considered and held as cumulative.
5. Grantor hereby irrevocably and unconditionally waives and
releases all benefits that might accrue to Grantor by virtue of any present or
future law exempting the Property from attachment, levy or sale on execution or
providing for any appraisement, valuation, stay of execution, exemption from
civil process, redemption or extension of time for payment, all notices of any
Event of Default or of Trustee's exercise of any right, remedy or recourse
provided for under the Loan Documents, and any right to a marshalling of assets
or a sale in inverse order of alienation.
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6. In case Beneficiary shall have proceeded to invoke any right,
remedy or recourse permitted under the Loan Documents and shall thereafter elect
to discontinue or abandon same for any reason, Beneficiary shall have the
unqualified right so to do and, in such event, Grantor and Beneficiary shall be
restored to their former positions with respect to the Obligations, the Loan
Documents, the Property and otherwise, and the rights, remedies, recourses and
powers of Beneficiary shall continue as if same had never been invoked.
7. Any proceeds of any sale of, and any Rents, except as otherwise
provided in Paragraph 2 of Section G, or other amounts generated by the holding,
leasing, operation or other use of, the Property shall be applied in the
following orders of priority: first, to the payment of all costs and expenses of
taking possession of the Property and of holding, leasing, operating, using,
repairing, improving and selling the same, including, without limitation,
reasonable fees of the Trustee and attorneys retained by Beneficiary or Trustee;
reasonable fees of any receiver or accountants; recording and filing fees; court
costs; costs of advertisement, and the payment of any and all Impositions,
liens, security interests or other rights, titles or interests equal or superior
to the lien and security interest of this Deed of Trust (except those to which
the Property has been sold subject to and without in any way implying
Beneficiary's consent to the creation thereof); second, to the payment of all
accrued and unpaid interest due on the Note; third, to the payment of the unpaid
principal balance of the Note; fourth, to the payment of all amounts, other than
unpaid principal and accrued interest on the Note, which may be due to
Beneficiary under the Loan Documents, together with interest thereon as provided
therein; fifth, to the payment of the unpaid Obligations; sixth, to Grantor.
8. In addition to the remedies set forth in this Section D, upon
the occurrence of an Event of Default the Beneficiary and Trustee shall, in
addition, have available to them the remedies set forth in Sections F and G
herein, as well as all other remedies available to them at law or in equity.
E. CONDEMNATION AND OTHER AWARDS. 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,
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
Beneficiary, who may apply the same to the Obligations in such manner as
Beneficiary may elect and 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.
F. SECURITY AGREEMENT. Grantor hereby grants to Beneficiary a security
interest in and to certain property as follows:
10 This Deed of Trust shall also constitute and serve as a
"Security Agreement" on personal property within the meaning of, and shall
constitute a first and prior security interest under Chapter 9 of the Code, with
respect to the Fixtures and Leases, subject only to Permitted Encumbrances. To
this end, Grantor has granted, bargained, conveyed, assigned, transferred and
set over, and by these presents does grant, bargain, convey, assign, transfer
and set over, unto Trustee,
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for the benefit of Beneficiary as a secured party, a first and prior security
interest (subject only to Permitted Encumbrances) and all of Grantor's right,
title and interest in, to and under the Fixtures and Leases, in trust, to secure
the full and timely payment and performance of the Obligations.
20 Grantor agrees to execute and deliver to Beneficiary, in form
and substance reasonably satisfactory to 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 herein granted,
and Beneficiary may 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.
30 Beneficiary, as well as Trustee on Beneficiary's behalf, shall
have all the rights, remedies and recourses with respect to the Fixtures and
Leases afforded a "Secured Party" by Chapter 9 of the Code, in addition to, and
not in limitation of, the other rights, remedies and recourses afforded
Beneficiary or Trustee by the Loan Documents.
40 The security interest herein granted shall not be deemed or
construed to constitute Trustee or Beneficiary as a party in possession of the
Property, to obligate Trustee or Beneficiary to lease the Property, or to take
any action, incur any expenses or perform any obligation whatsoever under any of
the Leases or otherwise.
50 Upon the occurrence of an Event of Default and at any time
thereafter:
(a) Trustee or Beneficiary shall have, with regard to the
Fixtures and Leases the remedies provided in this Deed of Trust and in
the Code (no such remedy granted by the Code being excepted, modified or
waived herein). Trustee or Beneficiary may use his or its discretion in
exercising the rights and electing the remedies; provided, however, all
acts shall be in compliance with the standards of the Code, where
applicable and required. For purposes of the notice requirements of the
Code and this Section F, it is agreed that notice sent or given not less
than ten (10) calendar days prior to the taking of the action to which
the notice relates, is reasonable notice.
(b) Trustee or Beneficiary shall be entitled, acting in his
or its sole discretion, to apply the proceeds of any disposition of the
Fixtures and Leases in the order set forth in Chapter 9 of the Code, or,
if allowed by the Code, in the order set forth in Paragraph 7 of Section
D hereof.
(c) Notwithstanding anything herein to the contrary,
Beneficiary, or the Trustee acting on Beneficiary's behalf, may at its
or his option, dispose of the Fixtures and other items of personal
property covered by this Deed of Trust in accordance with 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 Code.
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60 Beneficiary may require Grantor to assemble the Fixtures and
Leases and make them available to Beneficiary or Trustee at a place to be
designated by Beneficiary 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 Fixtures
and Leases and the like which are incurred or paid by Beneficiary as authorized
or permitted hereunder, including also all attorneys' fees, legal expenses and
costs, shall be added to the Obligations and Grantor shall be liable therefor.
70 As to the Fixtures and Leases, this Deed of Trust shall be
effective as a financing statement when filed for record in the Deed of Trust
Records of any county in which any portion of the Land is located. The record
owner of the Land is Grantor, whose mailing address for purposes of such
financing statement is set forth in the opening recital hereinabove. Information
concerning the security interest created by this instrument may be obtained from
Beneficiary at its address similarly set forth in such opening recital.
G. ASSIGNMENT OF RENTS. Grantor does hereby absolutely and unconditionally
assign, transfer and convey to Beneficiary, as well as to Trustee on
Beneficiary's behalf, all Rents under the following provisions:
1 Grantor reserves the right, unless and until an Event of Default
occurs, to collect the Rents as a trustee for the benefit of Beneficiary, and
Grantor shall apply the Rents so collected in the order set forth in Paragraph 7
of Section D hereof.
2 Beneficiary, or Trustee on Beneficiary's behalf, may at any
time, and without notice, either in person, by agent, or by receiver to be
appointed by a court, enter and take possession of the Property or any part
thereof, and in its own name, sue for or otherwise collect such Rents. Grantor
hereby agrees with Beneficiary that the other parties under the Leases may, upon
notice from Trustee or Beneficiary of the occurrence of an Event of Default,
thereafter pay directly to Beneficiary the Rents due and to become due under the
Leases and attorn to all other obligations thereunder direct to Beneficiary, or
Trustee on Beneficiary's behalf, without any obligation on their part to
determine whether an Event of Default does in fact exist or has in fact
occurred. All Rents collected by Beneficiary, or Trustee acting on Beneficiary's
behalf, shall be applied as provided for in Paragraph 7 of Section D above;
provided, however, that if the reasonable costs, expenses and reasonable
attorneys' fees shall exceed the amount of Rents collected, the excess shall be
added to the Obligations, shall bear interest as provided in Paragraph 5 of
Section L below and shall be immediately due and payable. The entering upon and
taking possession of the Property, the collection of Rents, and the application
thereof as aforesaid shall not cure or waive any Event of Default or notice of
default, if any, hereunder nor invalidate any act done pursuant to such notice,
except to the extent any such default is fully cured. Failure or discontinuance
of Beneficiary, or Trustee on Beneficiary's behalf, at any time or from time to
time, to collect said Rents shall not in any manner impair the subsequent
enforcement by Beneficiary, or Trustee on Beneficiary's behalf, of the right,
power and authority herein conferred upon it. Nothing contained herein, nor the
exercise of any right, power or authority herein granted to Beneficiary, or
Trustee on Beneficiary's behalf, shall be or be construed to be, an affirmation
by it of any tenancy, lease, or option, nor an
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assumption of liability under nor the subordination of the lien or charge of
this Deed of Trust, to any such tenancy, lease, or option.
3 Grantor will not (a) execute an assignment of any of its right,
title or interest in the Rents, or (b) except where the lessee is in default
thereunder, terminate or consent to the cancellation or surrender of any Lease
affecting the Property or any part thereof, now or hereafter existing, having an
unexpired term of one year or more except that any Lease may be cancelled,
provided that promptly after the cancellation or surrender thereof a new Lease
is entered into with a new lessee acceptable to Beneficiary in its sole
judgment, on substantially the same terms as the terminated or cancelled Lease,
or (c) modify any Lease affecting the Property or any part thereof so as to
shorten the unexpired term thereof or so as to decrease the amount of the Rents,
or (d) accept prepayments of any Rents in excess of sixty (60) days, except
prepayments in the nature of security for the performance of the lessee under
any Lease, or (e) in any other manner impair the value of the Property or the
security of this Deed of Trust. Grantor will not execute any Lease of all or any
substantial portion of the Property except for actual occupancy by the lessee
thereunder, and will at all times promptly and faithfully perform, or cause to
be performed, each covenant, condition and agreement contained in each Lease
affecting the Property now or hereafter existing on the part of lessor
thereunder to be kept and performed. Grantor shall furnish to Beneficiary,
within ten (10) days after a request by Beneficiary to do so, a written
statement containing the names of all lessees of the Property, the terms of
their respective Leases, the spaces occupied and the rentals payable thereunder.
H. THE TRUSTEE. The following provisions shall govern with respect to the
Trustee:
10 Trustee shall not be liable for any error of judgment or act
done by Trustee in good faith, or be otherwise responsible or accountable to
Grantor under any circumstances whatsoever, nor shall Trustee be personally
liable in case of entry by him, or anyone entering by virtue of the powers
herein granted, upon the Property for debts contracted or liability or damages
incurred in the management or operation of the Property. Trustee shall have the
right to rely on any instrument, document or signature authorizing or supporting
any action taken or proposed to be taken by him hereunder, believed by him in
good faith to be genuine. Trustee shall be entitled to reimbursement for
expenses incurred by him in the performance of his duties hereunder and to
reasonable compensation for such of his services hereunder as shall be rendered.
Grantor will, from time to time, pay the compensation due to Trustee hereunder
and reimburse Trustee for, and save him harmless against, any and all liability
and expenses which may be incurred by him in the performance of his duties.
20 All moneys received by Trustee 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 law), and Trustee shall be under no liability for interest on
any money received by him hereunder.
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30 Trustee may resign at any time with or without notice. If
Trustee shall die, resign or become disqualified from acting in the execution of
this trust or shall fail or refuse to execute the same when requested by
Beneficiary so to do, or if, for any reason, Beneficiary shall prefer to appoint
a substitute trustee to act instead of the forenamed Trustee, Beneficiary shall
have full power to appoint a substitute trustee and, if preferred several
substitute trustees who shall succeed to all the estates rights, powers and
duties of the forenamed Trustee.
40 Any new Trustee or Trustees appointed pursuant to any of the
provisions hereof shall, without any further act, deed or conveyance, become
vested with all the estates, properties, rights, powers and trusts of its, his
or their predecessor in the rights hereunder with like effect as if originally
named as Trustee herein; but nevertheless, upon the written request of
Beneficiary or of the successor Trustee(s), the Trustee ceasing to act shall
execute and deliver an instrument transferring to such successor Trustee(s),
upon the trusts herein expressed, all the estates, properties, rights, powers
and trusts of the Trustee so ceasing to act, and shall duly assign, transfer and
deliver any of the property and money held by such Trustee to the successor
Trustee(s) so appointed in his place.
I. ENVIRONMENTAL MATTERS. Beneficiary's right to conduct site assessments
and remove Hazardous Substances shall be governed by the terms of the
Environmental Indemnity.
J. INDEMNIFICATION. Grantor's obligations to indemnify Beneficiary shall be
governed by the terms of the Environmental Indemnity.
K. MISCELLANEOUS. The following provisions shall also apply to and govern
this Deed of Trust and the interpretation hereof:
1 Each and all of the representations, warranties, covenants and
other obligations made or undertaken by Grantor hereunder shall survive the
execution and delivery of the Loan Documents and the consummation of the loan
called for therein, and shall continue in full force and effect until the
Obligations shall have been paid in full.
2 Grantor, upon the request of Trustee or Beneficiary will
execute, acknowledge, deliver and record or file such further instruments and do
such further acts as may be reasonably necessary, desirable or proper to carry
out more effectively the purposes of the Loan Documents and to subject to the
liens and security interests thereof any property intended by the terms thereof
to be covered thereby, including specifically, but without limitation, any
renewals, additions, substitutions, replacements, or appurtenances to the then
Property. Grantor will pay all such recording, filing, re-recording and
re-filing taxes, fees and other charges, including those for security interest
searches.
3 All notices or other communications required or permitted to be
given pursuant to this Deed of Trust (except for notices of a foreclosure sale
which shall be given in the manner set forth in Paragraph l(d) of Section D
hereof) shall be given as provided in the Note.
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4 Any failure by Trustee or Beneficiary to insist, or any election
by Trustee or Beneficiary not to insist, upon strict performance by Grantor of
any of the terms, provisions or conditions of the Loan Documents shall not be
deemed to be a waiver of same or of any other term, provision or condition
thereof, and Trustee or Beneficiary shall have the right at any time or times
thereafter to insist upon strict performance by Grantor of any and all of such
terms, provisions and conditions.
5 If Grantor shall fail, refuse or neglect to make any payment or
perform any act required 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 have because of same,
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 the Land and Improvements for such purpose and to take all such
action thereon and with respect to the Property as it may deem necessary or
appropriate. Grantor shall indemnify Beneficiary for all Claims incurred or
accruing by reason of any acts performed by Beneficiary pursuant to this
Paragraph 5 of Section L or by reason of any other provision in the Loan
Documents. All sums paid by Beneficiary pursuant to this Paragraph 5 of this
Section L and all other sums expended by Beneficiary to which it shall be
entitled to be indemnified, together with interest thereon at the Default Rate
(as defined in the Note) shall constitute additional Obligations secured by this
Deed of Trust.
6 All of the covenants and other obligations made or undertaken by
Grantor pursuant to this Deed of Trust are intended by the parties to be, and
shall be construed as, covenants running with the Property.
7 All of the terms of the Loan Documents shall apply to, be
binding upon and inure to the benefit of the parties thereto, their respective
successors, assigns, heirs and legal representatives, and all other persons
claiming by, through or under them.
8 The Loan Documents are intended to be performed in accordance
with, and only to the extent permitted by, all applicable Legal Requirements. If
any provision of any of the Loan Documents or the application thereof to any
person or circumstance shall, for any reason and to any extent, be invalid or
unenforceable, neither the remainder of the instrument in which such provision
is contained nor the application of such provision to other persons or
circumstances nor the other instruments referred to hereinabove shall be
affected thereby, but rather shall be enforced to the greatest extent permitted
by law. It is hereby expressly stipulated and agreed to be the intent of Grantor
and Beneficiary at all times to comply with the usury, and all other laws
relating to the Loan Documents. If, at any time, the applicable Legal
Requirements render usurious any amount called for in any Loan Document, then it
is Grantor's, Trustee's and Beneficiary's express intent that such document be
immediately deemed reformed and the amounts collectible reduced or spread,
without the necessity of the execution of any new document, so as to comply with
the then applicable law but so as to permit the recovery of the fullest amount
otherwise called for in such Loan Documents.
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9 This Deed of Trust may be executed in any number of
counterparts, each of which shall be an original but all of which together shall
constitute but one instrument.
10 If any or all of the proceeds of the Note have been used to
extinguish, extend or renew any indebtedness heretofore existing against the
Property, then, to the extent of such funds so used, the Obligations and this
Deed of Trust shall be subrogated to all of the rights, claims, liens, titles
and interests heretofore existing against the Property to secure the
indebtedness so extinguished, extended or renewed and the former rights, claims,
liens, titles and interests, if any, are not waived but rather are continued in
full force and effect in favor of Beneficiary and are merged with the lien and
security interest created herein as cumulative security for the repayment of the
Obligations and the satisfaction of the Obligations.
11 THIS DEED OF TRUST SHALL BE GOVERNED BY AND CONSTRUED ACCORDING
TO THE LAWS OF THE STATE OF TEXAS AND THE APPLICABLE LAWS OF THE UNITED STATES
OF AMERICA.
12 Whenever the context hereof requires, references herein to the
singular number shall include the plural, and likewise the plural shall include
the singular; words denoting gender shall be construed to include the masculine,
feminine and neuter, where appropriate; and specific enumeration shall not
exclude the general, but shall be considered as cumulative.
13 All obligations of Grantor hereunder to indemnify Beneficiary
against Claims shall apply to Claims which arise as a result of the negligence
(sole, joint or contributory) of Beneficiary, but shall not apply to Claims
which arise as a result of the gross negligence or willful misconduct of
Beneficiary.
14 THIS DEED OF TRUST EMBODIES THE FINAL, ENTIRE AGREEMENT AMONG
THE PARTIES HERETO WITH RESPECT TO THE SUBJECT MATTER HEREOF AND SUPERSEDES ANY
AND ALL PRIOR COMMITMENTS, AGREEMENTS, REPRESENTATIONS, AND UNDERSTANDINGS,
WHETHER WRITTEN OR ORAL, RELATING TO THE SUBJECT MATTER HEREOF AND THEREOF AND
MAY NOT BE CONTRADICTED OR VARIED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR
SUBSEQUENT ORAL AGREEMENTS OR DISCUSSIONS OF THE PARTIES HERETO. THERE ARE NO
ORAL AGREEMENTS AMONG THE PARTIES HERETO.
EXECUTED and effective as of, although not necessarily on, the day and
year first above written.
GRANTOR:
OYOG OPERATIONS, LP
By: OYOG, LLC, its general partner
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By: OYO Geospace Corporation, its
managing member
By: /s/ Gary D. Owens
-------------------------------------
Name: Gary D. Owens
Title: President
STATE OF TEXAS )
)
COUNTY OF HARRIS )
This instrument was acknowledged before me on the 10th day of September,
2003, by Gary D. Owens, President of OYO Geospace Corporation, a Delaware
corporation, sole member of OYOG, LLC, a Delaware limited liability company,
general partner of OYOG Operations, LP, a Texas limited partnership, on behalf
of said limited partnership.
/s/ P J Whitworth
----------------------------------
Notary Public in and for
The State of T E X A S
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EXHIBIT "A"
Real Property
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EXHIBIT "B"
Permitted Encumbrances
1. Those easements granted in that certain instrument executed by Reed
Roller Bit Company to Houston Lighting & Power Co., dated May 26, 1996,
and recorded in Volume 6410 at Page 576 of the Deed Records of Harris
County, Texas, being (a) an easement for electric power distribution
line ten (10) feet wide adjoining the South, Southeast and East lines of
the said tract, together with an unobstructed aerial easement five (5)
feet wide adjacent thereto, extending upward from a plane twenty (20)
feet above the ground, (b) an easement ten (10) feet wide running East
to West two hundred (200) feet long for underground conduits, conductors
and devices and (c) an unobstructed easement seventeen (17) feet wide by
eighteen (18) feet long for a ground type transformer station.
2. An unobstructed aerial easement for power distribution lines twenty (20)
feet wide, extending upward from a plane twenty (20) feet above the
ground (centered on the ten (10) feet wide easement identified
hereinabove), said easement being granted by Reed Roller Bit company to
Houston Lighting & Power Co., dated June 19, 1966 and recorded in Volume
6410 at Pag 592 of the Deed Records of Harris County, Texas, the exact
location of said easement being shown by the plat attached to the said
instrument.
3. An unobstructed easement for electric power distribution lines ten (10)
feet wide adjoining the East line of the said tract, together with an
unobstructed aerial easement five (5) feet wide adjacent thereto,
extending upward from a plane twenty (20) feet above the ground, said
easement being granted by Dresser Industries, Inc. to Houston Lighting &
Power Co. by instrument dated March 4, 1969, and recorded in Volume 7563
at Page 45 of the Deed Records of Harris County, Texas, the exact
location of the said easements being shown on the plat attached to the
said instrument.
4. Storm Sewer Easement twenty (20) feet wide along the North property line
granted to the City of Houston by instrument(s) recorded in Volume 302,
Page 16, of the Map Records of Harris County, Texas, and filed for
record in the Office of the County Clerk of Harris County, Texas under
Clerk's File No(s). G-956077, and as shown on sketch attached thereto.
5. 1/2 non-participating royalty interest in all of the oil, gas and other
minerals in and under the herein described property, as reserved in
instrument filed for record in the office of the County Clerk of Harris
County, Texas, under Clerk's File No(s). E-135299.
6. The following matters disclosed by survey dated August 8, 2003, made by
Fred W. Lawton, Registered Professional Land Surveyor No. 2321:
a. Right of adjoining landowner in possession of land lying West of
a fence along the West line of the Property;
b. Sanitary sewer manhole, inlets, loading docks, and light poles;
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c. One story brick and tin warehouse, two story brick and tin
buildings; and
d. Gas tank and ditch.
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