Deed of Trust and
Security Agreement
THE STATE OF TEXAS
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KNOW ALL MEN BY THESE
PRESENTS:
COUNTY OF CHAMBERS
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NOTICE OF CONFIDENTIALITY RIGHTS: IF
YOU ARE A NATURAL PERSON, YOU MAY REMOVE OR STRIKE ANY OF THE
FOLLOWING INFORMATION FROM THIS INSTRUMENT BEFORE IT IS FILED FOR
RECORD IN THE PUBLIC RECORDS: YOUR SOCIAL SECURITY NUMBER OR YOUR
DRIVER'S LICENSE NUMBER.
That the undersigned, BLUE RIDGE
REAL ESTATE COMPANY, a Pennsylvania Corporation, hereinafter called
Grantors (whether one or more), in consideration of TEN AND NO/100
DOLLARS ($10.00) cash in hand paid by KENNETH D. MOORE, hereinafter
called Trustee, whose address is P.O. Drawer N, Anahuac, Texas
77514, the receipt of which payment is hereby acknowledged and
confessed, and of the debt and trust hereinafter mentioned have
Granted, Bargained, Sold and Conveyed, and by these presents do
Grant, Bargain, Sell and Convey unto Trustee, and unto the
successor or substitute Trustee hereinafter provided, the following
described property situated in Chambers County, Texas,
to-wit:
SEE EXHIBIT "A" ATTACHED HERETO AND MADE
A PART HEREOF FOR ALL INTENTS AND PURPOSES;
together with all improvements
thereon and hereafter placed thereon, and all fixtures, materials,
equipment, apparatus, and other property, real and personal, now or
hereafter installed on the above described property or the
improvements thereon which property upon installation becomes
legally known as a "fixture" under the common and/or statutory law
of the State of Texas, including, but not limited to, all heating,
lighting, refrigeration, plumbing, ventilating, incinerating,
water-heating, cooking and air-conditioning equipment, fixtures and
appurtenances, window screens, window shades, Venetian blinds,
awnings, floor coverings and shrubbery and all renewals,
replacements and substitutions thereof and additions thereto, all
of which said property and fixtures shall be deemed to be a part of
and affixed to the above described real property; and all rents,
income and profits arising from any part of the above described
property and the use thereof:
TO HAVE AND TO HOLD the above
described property, together with all and singular the rights,
privileges, hereditaments and appurtenances thereunto in anywise
incident, appertaining or belonging (all of which is hereinafter
called premises) unto Trustee, and his successors or substitutes
forever; and Grantors hereby bind themselves, their heirs,
successors and legal representatives, to warrant and forever defend
said premises unto Trustee, his successors and substitutes, against
every person whomsoever lawfully claiming or to claim the same or
any part thereof.
This conveyance is made in trust on
the following trusts, terms and conditions, and for the purpose of
securing and enforcing the payment of an indebtedness, as evidenced
in part by a certain promissory note (hereinafter called Note) of
even date herewith in the principal sum of ONE MILLION FIFTY
THOUSAND AND NO/100 DOLLARS ($1,050,000.00), being payable and
bearing interest before and after maturity thereof as therein
specified, containing certain accelerating maturity and attorney's
fee collection clauses, as specified therein, executed by Grantors
and payable to the order of BARBERS HILL BANKING CENTER, a branch
of ANAHUAC NATIONAL BANK, (hereinafter, together with any
subsequent holder of this Note, called Beneficiary), in lawful
money of the United States.
In addition to the Note, the
indebtedness secured hereby shall cover and include all other sums
of money which may be hereafter paid and advanced by Beneficiary
under the terms and provisions of this Deed of Trust, which said
sums of money and the Note shall be hereinafter jointly called
"indebtedness."
Grantors hereby expressly covenant
and agree that:
1.
They will pay the Note secured
hereby in accordance with the terms and provisions
thereof.
2. This Deed of Trust shall cover
any and all rearrangements and renewals of the indebtedness secured
hereby and all extensions in the time of payment thereof. Likewise,
the execution of this Deed of Trust shall not impair or affect any
other security which may be given to secure the payment of the
indebtedness secured hereby, and all such additional security shall
be considered as cumulative. The taking of additional security,
execution of partial release of the security or any extension of
time of payment of the indebtedness secured hereby shall not
diminish the force, effect, or lien of this Deed of Trust and shall
not affect or impair the liability of any maker, surety or endorser
for the payment of said indebtedness.
3. They will pay as same come due
and before they become delinquent, all taxes, assessments and other
charges imposed, levied or assessed against the
premises.
4. They will keep the premises in
good condition and repair and will not commit or permit any waste,
impairment or deterioration of the same and generally will not do
any act by which the value of the above described premises may
become impaired. Neither shall any improvements or fixtures be
altered, destroyed or removed from said property without the
written consent of Beneficiary.
5. As additional
security for the payment of the Note and all sums to become due
under this Deed of Trust, Grantors hereby assign to Beneficiary all
rents, revenues, and incomes from the premises, including all
rents, revenues, bonus money, royalties, rights and benefits
accruing to Grantors under all present and future oil, gas, and
mineral leases on said premises. On default in the prompt payment
of any sums secured by this Deed of Trust, Beneficiary, or any
Agent of Beneficiary, shall have the right, but not the obligation,
to demand, collect, receive, sue for and recover in its own name
all such presently owing or future rents, revenues, and incomes and
to apply the same to the payment of the indebtedness secured
hereby, after first deducting therefrom all expenses of collection.
On such default, Beneficiary shall also have the right to take
possession of the premises, remove all persons therefrom and rent
the same for the account of Grantors. (Likewise, on such default,
Beneficiary shall be entitled to have a receiver appointed without
notice to Grantors and without regard to the valuation of said
premises or the solvency or insolvency of Grantors or any other
person liable for any part of the indebtedness secured
hereby.)
6. Grantors will keep the premises
insured against such hazards and in such companies, forms and
amounts as may be required by Beneficiary. All such insurance
policies shall contain loss payable clauses payable to Beneficiary
as its interest may appear, and all insurance policies and renewals
thereof shall be delivered to Beneficiary immediately upon issuance
thereof, together with receipts showing payment of all premiums
thereon. Beneficiary shall have the right to collect and receive
all money that may become payable and collectable on all such
policies (whether through loss or damage to the premises, or
otherwise) and Beneficiary, upon collection of any such proceeds
may, at its option, after deducting a reasonable collection
expense, use or apply the funds so collected to any or a
combination of the following, to-wit: (i) use of such proceeds in
full or in part by Beneficiary for the rebuilding and restoration
of any part of the damaged or destroyed premises; (ii) release of
such funds in full or in part in a lump sum or in installments to
Grantors for their use in rebuilding and restoration of any part of
the damaged or destroyed premises; (iii) release of such funds in
full or in part to Grantors without restriction on their use; or
(iv) application of such funds in full or in part to the
indebtedness secured hereby, even though such indebtedness may not
be due according to its terms. In the event Beneficiary elects to
apply any of such funds under the provisions of item (iv) above,
Beneficiary shall have the option to apply such funds as a
prepayment of the last installments due and payable under the
aforementioned note, and Grantors shall be liable to continue the
required payments set forth in such note without any reduction
therein by reason of such prepayment, or Beneficiary may apply such
funds to any delinquent installments owing on such note or as a
prepayment of the next installments or principal, interest or
principal and interest due and payable on such note, or to any
combination of such delinquent and/or future installments due on
such note. Any such money held by Beneficiary for rebuilding or
restoration shall be held without payment or allowance of interest.
This provision shall not create any duty on the part of the
Beneficiary to collect insurance proceeds and the Beneficiary shall
not be responsible for the failure to collect the same regardless
of the cause of such failure.
7. If Grantors fail to pay before
delinquency all taxes, assessments and other charges imposed,
levied or assessed against said property or to maintain the
insurance coverage, all as herein provided Beneficiary may, at its
option and without waiver of any other rights granted by this Deed
of Trust for breach of the covenants contained herein, procure and
pay for any such insurance coverage and pay any such taxes,
assessments and other charges, including any sums that may be
necessary to redeem the premises from tax sale, without obligation
to inquire into the validity of any such taxes, assessments,
charges and tax sales, the receipts of the proper officers being
conclusive evidence of the validity and amount thereof. All amounts
so paid by Beneficiary shall immediately become due to Beneficiary,
together with interest thereon from the first day of the calendar
month in which such payments were made at the rate provided in the
Note secured hereby, and all such amounts shall be added to and
become a part of the indebtedness secured by this Deed of
Trust.
8. Grantors will not suffer or
permit any lien superior or equal to the lien created hereby to
attach to or be enforced against the premises.
9. If any part of the premises
shall be taken for public use under the power of eminent domain,
Beneficiary shall have the right to receive and collect all amounts
and damages awarded by such condemnation proceedings and apply the
same on the last maturing installments of the indebtedness secured
hereby.
10. Beneficiary may deal with any
subsequent owner or successors in interest of the premises or any
part thereof without notice to Grantors and without limiting or
discharging the liability of Grantors under this Deed of Trust and
the indebtedness secured hereby. Sale of the premises, forbearance
by Beneficiary or extensions of the time of payment of the
indebtedness secured hereby shall not operate to release,
discharge, modify, change or affect the original liability of
Grantors in whole or in part under this Deed of Trust or the note
secured hereby.
11. Grantors expressly waive and
renounce the benefit of all present and future laws providing for
any appraisement before sale of any of the property covered by this
Deed of Trust, commonly known as "appraisement law", and all
present and future laws extending in any manner the time for
enforcement of collection of the indebtedness secured hereby
commonly known as "stay laws" and "redemption laws".
12. If, subsequent to the execution
and delivery of this Deed of Trust, it should be ascertained that
there is a defect in the title of Grantors to the premises, or that
there is a lien of any nature whatsoever on any part of the
premises, which is equal or superior in rank to the lien granted by
this instrument, or if a homestead claim is asserted to any part of
the premises adverse to this trust, or if Grantors or any
subsequent owner of the premises become insolvent or bankrupt, or a
receiver be appointed for their property, or a petition for
reorganization be filed against Grantors, then in any such event
Beneficiary shall have the right to declare the indebtedness
secured hereby at once due and payable without demand or notice,
and the lien granted by this Deed of Trust may be
foreclosed.
13. (a) If the
indebtedness secured hereby is fully paid in accordance with the
terms and provisions of this instrument and Note, and if the
covenants and agreements contained herein are kept and performed,
then this conveyance shall become null and void and shall be
released at the expense of Grantors; otherwise, the same shall
remain in full force and effect; and if default is made in the
payment of any part of the indebtedness secured hereby or in the
performance of any of the covenants and agreements contained in
this instrument or in the Note, then the entire indebtedness
secured hereby shall, at once or at any time thereafter while any
part of said indebtedness remains unpaid, at the option of the
Beneficiary, become due and payable without demand or notice,
notice of intent to accelerate the maturity of the indebtedness
being hereby expressly waived by Grantors, and it shall thereupon
be the duty of the above named Trustee,
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or his successors or
substitute, as hereinafter provided, to enforce this trust at the
request of Beneficiary (which request shall be presumed) and to
sell the premises with or without first having taken possession of
the same and in whole or in part, as the acting Trustee may elect,
(all rights to a marshalling of assets by Grantors being expressly
waived hereby) to the highest bidder for cash at public auction at
the Courthouse door of the County in which said premises are
situated on the first Tuesday of any month between the hours of 10
A.M. and 4 P.M., after giving notice of the time, place and terms
of sale and the premises to be sold by posting or causing to be
posted written or printed notices thereof for at least twenty-one
(21) consecutive days prior to the date of said sale at the County
Courthouse door of each County in which any part or portion of the
premises are located. In addition, Beneficiary or its Attorney
shall at least 21 days preceding the date of sale serve written
notice of the proposed sale by certified mail on Grantors and each
debtor obligated to pay such debt according to the records of such
holder. Service of such notice shall be completed upon deposit of
the notice, enclosed in a postpaid wrapper, properly addressed to
the Grantors and any other such debtor at the most recent address
as shown by the records of the holder of the debt, 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. Said notices may be
posted by the acting Trustee or by any person chosen by him. After
such sale, the acting Trustee shall make due conveyance with
general warranty to the purchaser or purchasers, and the Grantors
bind themselves, their heirs and legal representatives to warrant
and forever defend the title of such purchaser or
purchasers.
(b) The proceeds from
any such sale shall be applied by the acting Trustee as
follows:
FIRST: To the payment of
all expenses of advertising, selling and conveying said premises,
including a commission to the acting Trustee of five per cent (5%)
of the amount of the unpaid indebtedness secured hereby.
SECOND: To the payment
to Beneficiary of all unpaid indebtedness and accrued interest to
the date of sale. Any abstract of title to the premises furnished
in connection with this loan shall be delivered and become the
property of the purchaser at said sale.
THIRD: The balance, if
any, shall be paid to Grantors.
(c) The acting Trustee
hereunder shall have the right to sell the premises in whole or in
part and in such parcels and order as he may determine, and the
right of sale hereunder shall not be exhausted by one or more
sales, but successive sales may be had until all of the premises
have been legally sold. Likewise, Beneficiary may become the
purchaser at any such sale if it is the highest bidder.
(d) It shall not be
necessary for the acting Trustee to have constructively in his
possession any part of the property covered by this Deed of Trust,
and the title and right of possession of said property shall pass
to the purchaser or purchasers at such sale as fully as if the same
had been actually present and delivered. Likewise, on foreclosure
of this Deed of Trust whether by power of sale herein contained or
otherwise, Grantors, or any person claiming any part of the
premises by, through or under Grantors, shall not be entitled to a
marshalling of said premises or a sale in inverse order of
alienation.
(e) The recitals and
statements of fact contained in any conveyance to the purchaser or
purchasers at any such sale shall be prima facie evidence of the
truth of such facts, and all prerequisites and requirements
necessary to the validity of any such sale shall be presumed to
have been performed.
(f) Any sale under the
powers granted by this Deed of Trust shall be a perpetual bar
against Grantors, their heirs, successors, assigns and legal
representatives.
14. In the event of a
foreclosure under the powers granted by this Deed of Trust,
Grantors, and all other persons in possession of any part of the
premises, shall be deemed tenants at will of the purchaser at such
foreclosure sale and shall be liable for a reasonable rental for
the use of said premises; and if any such tenants refuse to
surrender possession of said premises upon demand, the purchaser
shall be entitled to institute and maintain the statutory action of
forcible entry and detainer and procure a writ of possession
thereunder, and all damages sustained by reason thereof are hereby
expressly waived.
15. In case of the
death, inability, refusal or incapacity of the herein named Trustee
to act, or at the option of the Beneficiary at any time and without
cause or notice, a successor or substitute Trustee may be named,
constituted and appointed. Successor or substitute trustees may be
named, constituted and appointed without procuring the resignation
of the former trustee and without other formality than the
execution and acknowledgement by Beneficiary of a written
instrument (which instrument, if Beneficiary is a corporation,
shall be executed by the President or any
