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DEED OF TRUST, ASSIGNMENT OF LEASES AND RENTS,
SECURITY AGREEMENT AND FIXTURE FILING FOR COMMERCIAL PURPOSES
by
XXXXXX AMERICAN CHECKS, INC.
as Grantor
to
X.X. XXXXXXXXX, XX.
as Trustee
for the benefit of
BEAR XXXXXXX CORPORATE LENDING INC.
as Beneficiary
Dated as of: December 15, 2005
Property Address:
0000 Xxxxxxx Xxxxx
Xxx Xxxxxxx, Xxxxx
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THIS INSTRUMENT WAS PREPARED BY AND
RECORD AND RETURN TO:
XXXXXXXX XXXXXXXXX, ESQ.
XXXXXX & XXXXXXX LLP
000 XXXXX XXXXXX, XXXXX 0000
XXX XXXX, XX 00000
TABLE OF CONTENTS
1. DEFINITIONS........................................................... 1
GRANT................................................................. 3
2. WARRANTIES, REPRESENTATIONS AND COVENANTS............................. 3
2.1 Title to Mortgaged Property and Lien of this Instrument........ 3
2.2 First Lien Status.............................................. 3
2.3 Payment and Performance........................................ 3
2.4 Replacement of Fixtures and Personalty......................... 3
2.5 Maintenance of Rights of Way, Easements and Licenses........... 4
2.6 Inspection..................................................... 4
2.7 Other Covenants................................................ 4
2.8 Condemnation Awards and Insurance Proceeds..................... 4
2.9 Transfer or Encumbrance of the Mortgaged Property.............. 4
3. DEFAULT AND FORECLOSURE............................................... 5
3.1 Remedies....................................................... 5
3.2 Separate Sales................................................. 6
3.3 Remedies Cumulative, Concurrent and Nonexclusive............... 6
3.4 Release of and Resort to Collateral............................ 7
3.5 Waiver of Redemption, Notice and Marshalling of Assets......... 7
3.6 Discontinuance of Proceedings.................................. 7
3.7 Application of Proceeds........................................ 7
3.8 Occupancy After Foreclosure.................................... 8
3.9 Protective Advances and Disbursements; Costs of Enforcement.... 8
3.10 No Mortgagee in Possession..................................... 8
4. ASSIGNMENT OF RENTS AND LEASES........................................ 8
4.1 Assignment..................................................... 8
4.2 No Obligation.................................................. 9
4.3 Right to Apply Rents........................................... 9
4.4 No Merger of Estates........................................... 9
5. SECURITY AGREEMENT.................................................... 9
5.1 Security Interest.............................................. 9
5.2 Financing Statements........................................... 10
5.3 Fixture Filing................................................. 10
6. MISCELLANEOUS......................................................... 10
6.1 Notices........................................................ 10
6.2 Covenants Running with the Land................................ 11
6.3 Attorney-in-Fact............................................... 11
6.4 Successors and Assigns......................................... 11
6.5 No Waiver...................................................... 12
6.6 Subrogation.................................................... 12
6.7 Credit Agreement............................................... 12
6.8 Release........................................................ 12
6.9 Waiver of Stay, Moratorium and Similar Rights.................. 12
6.10 Obligations of Grantor, Joint and Several...................... 12
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6.11 Governing Law.................................................. 12
6.12 Headings....................................................... 12
6.13 Entire Agreement............................................... 12
6.14 Future Advances................................................ 12
7. RIGHTS AND RESPONSIBILITIES OF TRUSTEE; OTHER PROVISIONS RELATING TO
TRUSTEE............................................................... 13
7.1 Exercise of Remedies by Trustee................................ 13
7.2 Rights and Privileges of Trustee............................... 13
7.3 Authority of Beneficiary....................................... 13
7.4 Effect of Appointment of Successor Trustee..................... 13
7.5 Confirmation of Transfer and Succession........................ 14
7.6 Exculpation.................................................... 14
7.7 Endorsement and Execution of Documents......................... 14
7.8 Multiple Trustees.............................................. 14
7.9 No Required Action............................................. 14
7.10 Terms of Trustee's Acceptance.................................. 15
8. Recordation........................................................... 15
Exhibit A: legal description
INDEX OF DEFINED TERMS
Covenants................................................................... 1
Credit Agreement............................................................ 1
Fixtures.................................................................... 1
Improvements................................................................ 1
Land........................................................................ 1
Leases...................................................................... 2
Loan Documents.............................................................. 1
Mortgage.................................................................... 1
Mortgaged Property.......................................................... 1
Mortgagor................................................................... 1
Obligations................................................................. 2
Permitted Encumbrances...................................................... 2
Personalty.................................................................. 2
Plans....................................................................... 2
Property Agreements......................................................... 2
Rents....................................................................... 2
UCC......................................................................... 3
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DEED OF TRUST, ASSIGNMENT OF LEASES AND RENTS,
SECURITY AGREEMENT AND FIXTURE FILING FOR COMMERCIAL PURPOSES
This Deed of Trust, Assignment of Leases and Rents, Security Agreement and
Fixture Filing for Commercial Purposes (this "Deed of Trust") is executed as of
December 15, 2005, by and from XXXXXX AMERICAN CHECKS, INC., a Delaware
corporation ("Grantor"), whose address is 00000 Xxxxxxxx Xxxxx, Xxx Xxxxxxx,
Xxxxx 00000, to X.X. Xxxxxxxxx, Xx., an individual, whose address is c/o
LandAmerica, 0000 Xxxxxxx Xxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, as trustee
(together with its successors and assigns, collectively, "Trustee"), in favor of
BEAR XXXXXXX CORPORATE LENDING, INC., (together with its successors and assigns,
collectively, "Beneficiary"), a Delaware corporation, as Administrative Agent
and Beneficiary for the Lenders under the Credit Agreement more fully described
below, whose address is 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
1. DEFINITIONS
As used herein, the following terms shall have the following meanings:
"Covenants": All of the agreements, covenants, conditions, warranties,
representations and other obligations made or undertaken by Grantor or any other
person or entity to Beneficiary or others as set forth in the Loan Documents.
"Loan Documents": The (1) Credit Agreement dated as of December 15, 2005 among
Xxxxxx American Corp., as borrower; CA Acquisition Holdings, Inc., a Delaware
corporation, the Lenders from time to time party thereto; Bear, Xxxxxxx & Co.
Inc. and X.X. Xxxxxx Securities, Inc., as joint lead arrangers and joint book
running managers; JPMorgan Chase Bank, N.A., as syndication agent; and Bear
Xxxxxxx Corporate Lending Inc., as administrative agent (the "Credit
Agreement"), (2) the Security Documents, and the Notes, each as defined in the
Credit Agreement, (3) this Deed of Trust, (4) the Intercompany Note, as defined
in the Credit Agreement, (5) all other documents now or hereafter executed by
Grantor or any other person or entity to evidence or secure the payment and
performance of the Obligations and (6) all modifications, restatements,
consolidations, extensions, renewals and replacements of any of the foregoing.
"Mortgaged Property": All of Grantor's right title and interest in or to (1) the
real property described in Exhibit A, together with any greater estate therein
as hereafter may be acquired by Grantor (the "Land"), (2) buildings, structures
and other improvements, now or at any time situated, placed or constructed upon
the Land (the "Improvements"), (3) fixtures, materials, supplies, equipment,
apparatus and other items of personal property now owned or hereafter acquired
by Grantor and now or hereafter attached to, installed in or used in connection
with any of the Improvements or the Land, and all water, gas, electrical, storm
and sanitary sewer facilities and all other utilities whether or not situated in
easements (the "Fixtures"), (4) all goods, instruments, documents, chattel paper
and all other personal property of any kind or character, including such items
of personal property as defined in the UCC, now owned or
hereafter acquired by Grantor and now or hereafter affixed to, placed upon, used
in connection with, arising from or otherwise related to the Land and
Improvements or that may be used in or relating to the planning, development,
financing or operation of the Mortgaged Property, including, without limitation,
furniture, furnishings, equipment, machinery, money, insurance proceeds,
accounts, contract rights, goodwill, chattel paper, documents, property licenses
and/or franchise agreements, rights of Grantor under leases of Fixtures or other
personal property or equipment, 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
authorities, boards, corporations, providers of utility services, public or
private, including specifically, but without limitation, all refundable,
returnable or reimbursable tap fees, utility deposits, commitment fees and
development costs but only to the extent assignable (the "Personalty"), (5)
reserves, escrows or impounds required under the Credit Agreement and all
deposit accounts maintained by Grantor with respect to the Mortgaged Property,
(6) plans, specifications, shop drawings and other technical descriptions
prepared for construction, repair or alteration of the Improvements, and all
amendments and modifications thereof (the "Plans"), (7) all leases, subleases,
licenses, concessions, occupancy agreements or other agreements (written or
oral, now or at any time in effect) which grant a possessory interest in, or the
right to use, all or any part of the Mortgaged Property (the "Leases"), together
with all related security and other deposits, (8) all of the rents, revenues,
income, proceeds, profits, security and other types of deposits, and other
benefits paid or payable by parties to the Leases other than Grantor for using,
leasing, licensing, possessing, operating from, residing in, selling or
otherwise enjoying the Mortgaged Property (the "Rents"), (9) to the extent
assignable, all other agreements, such as construction contracts, architects'
agreements, engineers' contracts, utility contracts, maintenance agreements,
management agreements, service contracts, permits, licenses, certificates and
entitlements in any way relating to the development, construction, use,
occupancy, operation, maintenance, enjoyment, acquisition or ownership of the
Mortgaged Property (the "Property Agreements"), (10) all rights, privileges,
tenements, hereditaments, rights-of-way, easements, appendages and appurtenances
appertaining to the foregoing, and all right, title and interest, if any, of
Grantor in and to any streets, ways, alleys, strips or gores of land adjoining
the Land or any part thereof, (11) accessions, replacements and substitutions
for any of the foregoing and all proceeds thereof, (12) insurance policies,
unearned premiums therefor and proceeds from such policies covering any of the
above property now or hereafter acquired by Grantor, (13) all mineral, water,
oil and gas rights now or hereafter acquired and relating to all or any part of
the Mortgaged Property and (14) any awards, remunerations, reimbursements,
settlements or compensation heretofore made or hereafter to be made by any
governmental authority pertaining to the Land, Improvements, Fixtures or
Personalty. As used in this Deed of Trust, the term "Mortgaged Property" shall
mean all or, where the context permits or requires, any portion of the above or
any interest therein.
"Obligations": As defined in the Credit Agreement, as well as all obligations
arising under the Guarantee and Collateral Agreement (as defined in the Credit
Agreement) and including, without limitation, all other indebtedness,
obligations and liabilities now or hereafter existing of any kind of Grantor to
Beneficiary under documents that recite that they are intended to be secured by
this Deed of Trust.
"Permitted Encumbrances": The outstanding liens, easements, restrictions,
security interests and other exceptions to title set forth in the policy of
title insurance insuring the lien of this Deed of
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Trust issued on the date hereof, together with the liens and security interests
in favor of Beneficiary created or permitted by the Loan Documents.
"UCC": The Uniform Commercial Code of the State of Texas.
Capital terms used herein but not otherwise defined shall have the meanings set
forth for such terms in the Credit Agreement.
GRANT. For good and valuable consideration, the receipt and legal sufficiency of
which are hereby acknowledged, the Grantor has GRANTED, BARGAINED, ASSIGNED,
SOLD, TRANSFERRED and CONVEYED and by these presents does GRANT, BARGAIN,
ASSIGN, SELL, TRANSFER and CONVEY unto the Trustee, or his substitutes,
successors and assigns as hereinafter permitted, the Mortgaged Property, in
trust, for the use and benefit of the Beneficiary, subject, however, to the
Permitted Encumbrances and the Permitted Liens. The maturity date of the secured
debt is December 15, 2011.
2. WARRANTIES, REPRESENTATIONS AND COVENANTS. Grantor warrants, represents and
covenants to Trustee and Beneficiary as follows:
2.1 Title to Mortgaged Property and Lien of this Instrument. Grantor owns the
Mortgaged Property free and clear of any liens, claims or interests, except the
Permitted Encumbrances and the Permitted Liens. This Deed of Trust creates a
valid, enforceable first priority lien and security interest against the
Mortgaged Property, subject only to the Permitted Encumbrances.
2.2 First Lien Status. Grantor shall preserve and protect the first lien and
security interest status of this Deed of Trust and the other Loan Documents. If
any lien or security interest other than a Permitted Encumbrance or a Permitted
Lien is asserted against the Mortgaged Property, Grantor shall promptly, and at
its expense, (a) give Beneficiary a detailed written notice of such lien or
security interest (including origin, amount and other terms), and (b) pay the
underlying claim in full or take such other action so as to cause it to be
released or contest the same in compliance with the requirements of the Credit
Agreement (including the requirement of providing a bond or other security
satisfactory to Beneficiary to the extent required by the Credit Agreement).
2.3 Payment and Performance. Grantor shall pay and perform the Obligations when
due under the Loan Documents to which it is a party and shall perform the
Covenants under the Loan Documents to which it is a party in full when they are
required to be performed.
2.4 Replacement of Fixtures and Personalty. Except as permitted by the Credit
Agreement, Grantor shall not, without the prior written consent of Beneficiary,
not to be unreasonably withheld, permit 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
immaterial or is obsolete and in either case, is replaced by an article of equal
or better suitability and value, owned by Grantor subject to the liens and
security interests of this Deed of Trust and the other Loan Documents, and free
and clear of any other lien or security interest except such as may be first
approved in writing by Beneficiary.
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2.5 Maintenance of Rights of Way, Easements and Licenses. Grantor shall maintain
all rights of way, easements, grants, privileges, licenses, certificates,
permits, entitlements and franchises necessary for the use of the Mortgaged
Property and will not, without the prior consent of Beneficiary, not to be
unreasonably withheld or delayed, consent to any public restriction (including
any zoning ordinance) or private restriction as to the use of the Mortgaged
Property which restriction is reasonably likely to materially and adversely
effect the current use of the Mortgaged Property. Grantor shall comply in all
material respects with all restrictive covenants affecting the Mortgaged
Property, and all zoning ordinances and other public or private restrictions as
to the use of the Mortgaged Property.
2.6 Inspection. Grantor shall permit Beneficiary, and Beneficiary's respective
agents, representatives and employees, to inspect the Mortgaged Property to the
extent permitted in Section 6.6 of the Credit Agreement.
2.7 Other Covenants. All of the covenants in the Credit Agreement are
incorporated herein by reference. All property-related covenants in the Credit
Agreement are incorporated as though Grantor were the "Borrower" thereunder.
2.8 Condemnation Awards and Insurance Proceeds.
2.8.1 Condemnation Awards. Grantor assigns all awards and compensation for
any condemnation or other taking, or any purchase in lieu thereof, to
Beneficiary and authorizes Beneficiary to collect and receive such awards and
compensation and to give proper receipts and acquaintances therefor, subject to
the terms of the Credit Agreement.
2.8.2 Insurance Proceeds. Grantor assigns to Beneficiary all proceeds of
any insurance policies insuring against loss or damage to the Mortgaged
Property. Grantor authorizes and directs the issuer of each of such insurance
policies to make payment for all such losses to Beneficiary, to be released by
Beneficiary or applied in accordance with the terms of the Credit Agreement.
Notwithstanding the foregoing, Beneficiary shall make available to Grantor the
foregoing awards, compensation and proceeds of condemnation and insurance, for
the purpose of restoration and rebuilding the Mortgaged Property, to the same
extent that Grantor or the borrowers would be entitled to retain Net Cash
Proceeds in connection with a Recovery Event (as both of those terms are defined
in the Credit Agreement), under the terms of the Credit Agreement.
2.9 Transfer or Encumbrance of the Mortgaged Property. Grantor shall not, except
as and to the extent permitted in the Credit Agreement, sell, convey, alienate,
mortgage, encumber, pledge or otherwise transfer the Mortgaged Property or any
part thereof, or permit the Mortgaged Property or any part thereof to be sold,
conveyed, alienated, mortgaged, encumbered, pledged or otherwise transferred.
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3. DEFAULT AND FORECLOSURE
3.1 Remedies. During the occurrence and continuance of an Event of Default (as
defined in the Credit Agreement), Beneficiary may, at Beneficiary's election and
by or through Beneficiary or otherwise, exercise any or all of the following
rights, remedies and recourses:
3.1.1 Acceleration. To the extent permitted by the Credit Agreement,
declare the Obligations to be immediately due and payable, without further
notice, presentment, protest, notice of intent to accelerate, notice of
acceleration, demand or action of any nature whatsoever (each of which hereby is
expressly waived by Grantor), whereupon the same shall become immediately due
and payable.
3.1.2 Entry on Mortgaged Property. Enter the Mortgaged Property and take
exclusive possession thereof and obtain possession of all books, records and
accounts relating thereto. If Grantor remains in possession of the Mortgaged
Property after an Event of Default and without Beneficiary's prior written
consent, Beneficiary may invoke any legal remedies to dispossess Grantor.
3.1.3 Operation of Mortgaged Property. Hold, lease, develop, manage,
operate or otherwise use the Mortgaged Property upon such terms and conditions
as Beneficiary may deem reasonable under the circumstances (making such repairs,
alterations, additions and improvements and taking other actions, from time to
time, as Beneficiary deems necessary or desirable), and apply all Rents and
other amounts collected by Trustee or Beneficiary in connection therewith in
accordance with the provisions of the Credit Agreement.
3.1.4 Foreclosure and Sale. Sell or offer for sale the Mortgaged Property
in such portions, orders and parcels as the 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 after giving adequate legal notice of
the time and place thereof and in all other respects in accordance with the
provisions of Section 51.002 of the Texas Property Code, as now written or as
hereafter amended or succeeded, relating to the sale of real estate or (with
respect to the Personalty) by Chapter 9 of the UCC relating to the sale of
collateral after default by a debtor or by other applicable present or
subsequent laws. At such sale:
3.1.4.1 The Trustee shall not be required to be physically present or
have constructive possession of the Mortgaged Property, the Grantor hereby
promising to deliver to the Trustee any portion of the Mortgaged Property not
actually or constructively possessed by the Trustee, immediately upon demand by
the Trustee, and the title to and right of possession of any such property shall
pass to the purchaser thereof as completely as if same had been actually present
and delivered to the purchaser at such sale.
3.1.4.2 Each instrument of conveyance executed by the Trustee shall
contain a special warranty of title binding upon the Grantor.
3.1.4.3 Each and every recital contained in any instrument of
conveyance made by the Trustee shall presumptively establish the truth and
accuracy of the matters recited therein, including, without limitation,
non-payment of the Indebtedness, advertisement and conduct of
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such sale in the manner provided herein, and otherwise by law, and by
appointment of any substitute or successor trustee hereunder.
3.1.4.4 Any and all prerequisites to the validity of such sale shall
be presumed to have been performed.
3.1.4.5 The receipt of the Trustee or of any other party making the
sale shall be a sufficient discharge to the purchaser for his purchase price 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 non-application of the proceeds.
3.1.4.6 The Grantor shall be completely and irrevocably divested of
all right, title and 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 and in equity, against the Grantor and against any and all other
persons claiming or to claim the property sold or any part thereof, by or
through the Grantor.
3.1.4.7 The Beneficiary may be a purchaser at any such sale.
3.1.5 Receiver. Make application to a court of competent jurisdiction for,
and obtain from such court as a matter of strict right and without notice to
Grantor or regard to the adequacy of the Mortgaged Property for the repayment of
the Obligations, the appointment of a receiver of the Mortgaged Property, and
Grantor irrevocably consents to such appointment. Any such receiver shall have
all the usual powers and duties of receivers in similar cases, including the
full power to rent, maintain and otherwise operate the Mortgaged Property upon
such terms as may be approved by the court, and shall apply such Rents in
accordance with the provisions of the Credit Agreement.
3.1.6 Other. Exercise all other rights, remedies and recourses granted
under the Loan Documents or otherwise available at law or in equity and under
the UCC (including an action for specific performance of any covenant contained
in the Loan Documents, or a judgment on the Note either before, during or after
any proceeding to enforce this Deed of Trust).
3.2 Separate Sales. The Mortgaged Property may be sold in one or more parcels
and in such manner and order as Beneficiary in its sole discretion may elect;
the right of sale arising out of any Event of Default shall not be exhausted by
any one or more sales.
3.3 Remedies Cumulative, Concurrent and Nonexclusive. Trustee and Beneficiary
shall have all rights, remedies and recourses granted in the Loan Documents and
available at law or equity (including the UCC), which rights (a) shall be
cumulative and concurrent, (b) may be pursued separately, successively or
concurrently against Grantor or others obligated under the Note and the other
Loan Documents, or against the Mortgaged Property, or against any one or more of
them, at the sole discretion of Beneficiary, (c) may be exercised as often as
occasion therefor shall arise, and the exercise or failure to exercise any of
them shall not be construed as a waiver or release thereof or of any other
right, remedy or recourse, and (d) are intended to be, and shall be,
nonexclusive. No action by Trustee or Beneficiary in the enforcement of any
rights,
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remedies or recourses under the Loan Documents or otherwise at law or equity
shall be deemed to cure any Event of Default.
3.4 Release of and Resort to Collateral. Beneficiary may release, regardless of
consideration and without the necessity for any notice to or consent by the
holder of any subordinate lien on the Mortgaged Property, any part of the
Mortgaged Property without, as to the remainder, in any way impairing,
affecting, subordinating or releasing the lien or security interests created in
or evidenced by the Loan Documents or their stature as a first and prior lien
and security interest in and to the remaining Mortgaged Property. For payment of
the Obligations, Beneficiary may resort to any other security in such order and
manner as Beneficiary may elect.
3.5 Waiver of Redemption, Notice and Marshalling of Assets. To the fullest
extent permitted by law, Grantor hereby irrevocably and unconditionally waives
and releases (a) all benefit that might accrue to Grantor by virtue of any
present or future statute of limitations or law or judicial decision exempting
the Mortgaged 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, (b) all notices of any
Event of Default or of Beneficiary's election to exercise or its actual exercise
of any right, remedy or recourse provided for under the Loan Documents, and (c)
any right to a marshalling of assets or a sale in inverse order of alienation.
3.6 Discontinuance of Proceedings. If Beneficiary shall have proceeded to invoke
any right, remedy or recourse permitted under the Loan Documents and shall
thereafter elect to discontinue or abandon it for any reason, Beneficiary shall
have the unqualified right to do so and, in such an event, Grantor, Trustee and
Beneficiary shall be restored to their former positions with respect to the
Obligations, the Loan Documents, the Mortgaged Property and otherwise, and the
rights, remedies, recourses and powers of Trustee and Beneficiary shall continue
as if the right, remedy or recourse had never been invoked, but no such
discontinuance or abandonment shall waive any Event of Default that may then
exist or the right of Trustee and Beneficiary thereafter to exercise any right,
remedy or recourse under the Loan Documents for such Event of Default.
3.7 Application of Proceeds. The proceeds of any sale of, and the Rents and
other amounts generated by the holding, leasing, management, operation or other
use of the Mortgaged Property, shall be applied by Trustee or Beneficiary (or
the receiver, if one is appointed) in the following order unless otherwise
required by the Credit Agreement or applicable law:
3.7.1 to the payment of the costs and expenses actually incurred by
Beneficiary in taking possession of the Mortgaged Property and of holding,
using, leasing, repairing, improving and selling the same, including, without
limitation: (1) Trustee's and receiver's reasonable fees and expenses, (2) court
costs, (3) reasonable attorneys' and accountants' fees and expenses, (4) costs
of advertisement, and (5) the payment of all ground rent, real estate taxes and
assessments, except any taxes, assessments or other charges subject to which the
Mortgaged Property shall have been sold;
3.7.2 to the payment of all amounts (including interest), other than the
unpaid principal balance of the Note and accrued but unpaid interest, which may
be due to Beneficiary under the Loan Documents;
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3.7.3 to the payment of the Obligations and performance of the Covenants
under the Loan Documents in such manner and order of preference as Beneficiary
in its sole discretion may determine; and
3.7.4 the balance, if any, to the payment of the persons legally entitled
thereto.
3.8 Occupancy After Foreclosure. The purchaser at any foreclosure sale pursuant
to this Deed of Trust shall become the legal owner of the Mortgaged Property.
All occupants of the Mortgaged Property shall, at the option of such purchaser,
become tenants of the purchaser at the foreclosure sale and shall deliver
possession thereof immediately to the purchaser upon demand. It shall not be
necessary for the purchaser at said sale to bring any action for possession of
the Mortgaged Property other than the statutory action of forcible detainer in
any justice court having jurisdiction over the Mortgaged Property.
3.9 Protective Advances and Disbursements; Costs of Enforcement.
3.9.1 If any Event of Default exists, Beneficiary shall have the right, but
not the obligation, to cure such Event of Default in the name and on behalf of
Grantor. All sums advanced and expenses incurred at any time by Beneficiary
under this Section, or otherwise under this Deed of Trust or any of the other
Loan Documents or applicable law, shall bear interest from the date that such
sum is advanced or expense incurred, to and including the date of reimbursement,
computed at the interest rate applicable to overdue Reimbursement Obligations
under Section 2.14(c) of the Credit Agreement, and all such sums, together with
interest thereon, shall be secured by this Deed of Trust.
3.9.2 Grantor shall pay all expenses (including reasonable attorneys' fees
and expenses) of or incidental to the perfection and enforcement of this Deed of
Trust and the other Loan Documents, or the enforcement, compromise or settlement
of the Obligations or any claim under this Deed of Trust and the other Loan
Documents, and for the curing thereof, or for defending or asserting the rights
and claims of Beneficiary in respect thereof, by litigation or otherwise.
3.10 No Mortgagee in Possession. Neither the enforcement of any of the remedies
under this Article, the assignment of the Rents and Leases under Article 4, the
security interests under Article 5, nor any other remedies afforded to Trustee
or Beneficiary under the Loan Documents, at law or in equity shall cause Trustee
or Beneficiary to be deemed or construed to be a mortgagee in possession of the
Mortgaged Property, to obligate Trustee or Beneficiary to lease the Mortgaged
Property or attempt to do so, or to take any action, incur any expense, or
perform or discharge any obligation, duty or liability whatsoever under any of
the Leases or otherwise.
4. ASSIGNMENT OF RENTS AND LEASES
4.1 Assignment. Grantor hereby grants to Beneficiary a present, absolute
assignment of the Leases and Rents; provided, however, that subject to the
provisions of this Deed of Trust and the other Loan Documents, Beneficiary
hereby gives Grantor a revocable license, so long as no Event of Default has
occurred hereunder, to collect and use the Rents as they become due and payable,
but not in advance thereof. While any Event of Default exists and is continuing,
Beneficiary shall be entitled to (a) notify any person that the Leases have been
assigned to
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Beneficiary and that all Rents are to be paid directly to Beneficiary, whether
or not Trustee or Beneficiary has commenced or completed foreclosure or taken
possession of the Mortgaged Property; (b) settle, compromise, release, extend
the time of payment of, and make allowances, adjustments and discounts of any
Rents or other obligations under the Leases; (c) enforce payment of Rents and
other rights under the Leases, prosecute any action or proceeding, and defend
against any claim with respect to Rents and Leases; (d) enter upon, take
possession of and operate the Mortgaged Property; (e) lease all or any part of
the Mortgaged Property; and/or (f) perform any and all obligations of Grantor
under the Leases and exercise any and all rights of Grantor therein contained to
the full extent of Grantor's rights and obligations thereunder, with or without
the bringing of any action or the appointment of a receiver.
4.2 No Obligation. Notwithstanding Beneficiary's rights hereunder, Beneficiary
shall not be obligated to perform, and Beneficiary does not undertake to
perform, any obligation, duty or liability with respect to the Leases or Rents
on account of this Deed of Trust. Trustee and Beneficiary shall have no
responsibility on account of this Deed of Trust for the control, care,
maintenance or repair of the Mortgaged Property, for any waste committed on the
Mortgaged Property, for any dangerous or defective condition of the Mortgaged
Property, or for any negligence in the management, upkeep, repair or control of
the Mortgaged Property except to the extent any of the foregoing are caused by
Beneficiary or its agents.
4.3 Right to Apply Rents. Beneficiary shall have the right, but not the
obligation, to use and apply any Rents received hereunder in such order and such
manner as Beneficiary may determine, including, without limitation, for: (a) the
payment of costs and expenses of enforcing or defending the terms of this Deed
of Trust or the rights of Beneficiary hereunder, and collecting any Rents and
(b) the payment of costs and expenses of the operation and maintenance of the
Mortgaged Property.
4.4 No Merger of Estates. So long as any part of the Obligations and Covenants
secured hereby remain unpaid and undischarged, the fee and leasehold estates to
the Mortgaged Property shall not merge, but shall remain separate and distinct,
notwithstanding the union of such estates either in Grantor, Beneficiary, any
lessee or any third party by purchase or otherwise.
5. SECURITY AGREEMENT
5.1 Security Interest. This Deed of Trust constitutes a "Security Agreement" on
personal property within the meaning of the UCC and other applicable law and
with respect to the Personalty, Fixtures, Plans, Leases, Rents and Property
Agreements. To this end, Grantor grants to Trustee and Beneficiary a first and
prior security interest in the Personalty, Fixtures, Plans, Leases, Rents and
Property Agreements and all other Mortgaged Property that is personal property
to secure the payment of the Obligations and performance of the Covenants under
the Loan Documents, and agrees that Beneficiary shall have all the rights and
remedies of a secured party under the UCC with respect to such property. Any
notice of sale, disposition or other intended action by Trustee and Beneficiary
with respect to the Personalty, Fixtures, Plans, Leases, Rents and Property
Agreement sent to Grantor at least ten (10) days prior to any action under the
UCC shall constitute reasonable notice to Grantor.
9
5.2 Financing Statements. Grantor shall execute and deliver to Beneficiary, in
form and substance satisfactory to Beneficiary, such financing statements and
such further assurances as Beneficiary may, from time to time, reasonably
consider necessary to create, perfect and preserve Beneficiary's security
interest hereunder 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 so create, perfect and preserve such security interest. Grantor's
chief executive office is in the State of Texas at the address set forth in the
first paragraph of this Deed of Trust.
5.3 Fixture Filing. This Deed of Trust shall also constitute a "fixture filing"
for the purposes of the UCC against all of the Mortgaged Property that is or is
to become fixtures. Information concerning the security interest herein granted
may be obtained at the addresses of Debtor (Grantor) and Secured Party
(Beneficiary) as set forth in the first paragraph of this Deed of Trust. Grantor
is the record owner of the Mortgaged Property.
6. MISCELLANEOUS
6.1 Notices. Any notice required or permitted to be given under this Deed of
Trust shall be in writing and either shall be mailed by certified mail, postage
prepaid, return receipt requested, or sent by overnight air courier service, or
personally delivered to a representative of the receiving party, or sent by
telecopy. All such communications shall be mailed, sent or delivered, addressed
to the party for whom it is intended at its address set forth below:
If to Grantor, to:
Xxxxxx American Checks, Inc.
00000 Xxxxxxxx Xxxxx
Xxx Xxxxxxx, Xxxxx 00000
Attention: Chief Financial Officer
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxxxx Xxxxxx, Esq.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to Beneficiary, to
Bear Xxxxxxx Corporate Lending Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X'Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
10
with a copy to:
Xxxxxx & Xxxxxxx LLP
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Attn: Xxxxxxxx Xxxxxxxxx, Esq.
Telephone: 000-000-0000
Telecopy: 000-000-0000
Any communication so addressed and mailed shall be deemed to have been duly
given or made when delivered, or three business days after being deposited in
the mail, postage prepaid, or, in the case of telecopy notice, when received,
addressed as set forth above or in the case of any party, to such other address
as such party may hereafter notify to the other parties hereto.
6.2 Covenants Running with the Land. All Obligations contained in this Deed of
Trust are intended by Grantor, Trustee and Beneficiary to be, and shall be
construed as, covenants running with the Mortgaged Property. As used herein,
"Grantor" shall refer to the party named in the first paragraph of this Deed of
Trust and to any subsequent owner of all or any portion of the Mortgaged
Property (without in any way implying that Beneficiary has or will consent to
any such conveyance or transfer of the Mortgaged Property). All persons or
entities who may have or acquire an interest in the Mortgaged Property shall be
deemed to have notice of, and be bound by, the terms of the Credit Agreement and
the other Loan Documents; however, no such party shall be entitled to any rights
thereunder without the prior written consent of Beneficiary.
6.3 Attorney-in-Fact. Grantor hereby irrevocably appoints Beneficiary and its
successors and assigns, as its attorney-in-fact, which agency is coupled with an
interest, (a) to execute and/or record any notices of completion, cessation of
labor or any other notices that Beneficiary deems appropriate to protect
Beneficiary's interest, if Grantor shall fail to do so within ten (10) days
after written request by Beneficiary, (b) upon the issuance of a deed pursuant
to the foreclosure of this Deed of Trust or the delivery of a deed in lieu of
foreclosure, to execute all instruments of assignment, conveyance or further
assurance with respect to the Leases, Rents, Personalty, Fixtures, Plans and
Property Agreements in favor of the grantee of any such deed and as may be
necessary or desirable for such purpose, (c) to prepare, execute and file or
record financing statements, continuation statements and applications for
registration necessary to create, perfect or preserve Beneficiary's security
interests and rights in or to any of the collateral, and (d) while any Event of
Default exists and is continuing, to perform any obligation of Grantor
hereunder; however: (1) Beneficiary shall not under any circumstances be
obligated to perform any obligation of Grantor; (2) any sums advanced by
Beneficiary in such performance shall be added to and included in the
Obligations and shall bear interest at the interest rate applicable to overdue
Reimbursement Obligations under Section 2.14(c) of the Credit Agreement; (3)
Beneficiary as such attorney-in-fact shall only be accountable for such funds as
are actually received by Beneficiary; and (4) Beneficiary shall not be liable to
Grantor or any other person or entity for any failure to take any action that it
is empowered to take under this Section.
6.4 Successors and Assigns. This Deed of Trust shall be binding upon and inure
to the benefit of Beneficiary and Grantor and their respective successors and
assigns. Grantor shall not, without the prior written consent of Beneficiary,
assign any rights, duties or obligations hereunder.
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6.5 No Waiver. Any failure by Beneficiary to insist upon strict performance of
any of the terms, provisions or conditions of the Loan Documents shall not be
deemed to be a waiver of same, and Beneficiary shall have the right at any time
to insist upon strict performance of all of such terms, provisions and
conditions.
6.6 Subrogation. To the extent proceeds of the Loan have been used to
extinguish, extend or renew any indebtedness against the Mortgaged Property,
then Beneficiary shall be subrogated to all of the rights, liens and interests
existing against the Mortgaged Property and held by the holder of such
indebtedness and such former rights, liens and interests, if any, are not
waived, but are continued in full force and effect in favor of Beneficiary.
6.7 Credit Agreement. If any conflict or inconsistency exists between this Deed
of Trust and the Credit Agreement, the Credit Agreement shall govern.
6.8 Release. Upon payment in full of the Obligations, the termination or
expiration of all Commitments (as defined in the Credit Agreement), and provided
that no Letter of Credit (as defined in the Credit Agreement) shall be
outstanding, Beneficiary, at Grantor's expense, shall release the liens and
security interests created by this Deed of Trust or, at Grantor's request (but
at no cost to Beneficiary) assign this Deed of Trust to a Beneficiary designated
by Grantor.
6.9 Waiver of Stay, Moratorium and Similar Rights. Grantor agrees, to the full
extent that it may lawfully do so, that it will not at any time insist upon or
plead or in any way take advantage of any appraisement, valuation, stay,
marshalling of assets, extension, redemption or moratorium law now or hereafter
in force and effect so as to prevent or hinder the enforcement of the provisions
of this Deed of Trust or the indebtedness secured hereby, or any agreement
between Grantor and Beneficiary or any rights or remedies of Beneficiary.
6.10 Obligations of Grantor, Joint and Several. If more than one person or
entity has executed this Deed of Trust as "Grantor," the obligations of all such
persons or entities hereunder shall be joint and several.
6.11 Governing Law. This Deed of Trust shall be governed by the laws of the
State of Texas.
6.12 Headings. The Article, Section and Subsection titles hereof are inserted
for convenience of reference only and shall in no way alter, modify or define,
or be used in construing, the text of such Articles, Sections or Subsections.
6.13 Entire Agreement. This Deed of Trust and the other Loan Documents embody
the entire agreement and understanding between Beneficiary and Grantor and
supersede all prior agreements and understandings between such parties relating
to the subject matter hereof and thereof. Accordingly, the Loan Documents may
not be contradicted by evidence of prior, contemporaneous or subsequent oral
agreements of the parties. There are no unwritten oral agreements between the
parties.
6.14 Future Advances. Upon request of Grantor, and at Beneficiary's option prior
to release of this Deed of Trust, Beneficiary may make future advances to
Grantor. Such future advances, with interest thereon, shall be secured by this
Deed of Trust unless the parties shall agree otherwise in writing.
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7. RIGHTS AND RESPONSIBILITIES OF TRUSTEE; OTHER PROVISIONS RELATING TO TRUSTEE
Notwithstanding anything to the contrary in this Deed of Trust, Grantor and
Beneficiary agree as follows.
7.1 Exercise of Remedies by Trustee. Trustee hereby covenants to faithfully
perform and fulfill the trusts herein created. To the extent that this Deed of
Trust or applicable law authorizes or empowers Beneficiary to exercise any
remedies set forth in Section 3 hereof or otherwise, or perform any acts in
connection therewith, Trustee (but not to the exclusion of Beneficiary unless so
required under the law of the State) shall have the power to exercise any or all
such remedies, and to perform any acts provided for in this Deed of Trust in
connection therewith, all for the benefit of Beneficiary and on Beneficiary's
behalf in accordance with applicable law of the State. In connection therewith,
Trustee: (a) shall not exercise, or waive the exercise of, any Beneficiary's
remedies (other than any rights of Trustee to any indemnity or reimbursement),
except at Beneficiary's request, and (b) shall exercise, or waive the exercise
of, any or all of Beneficiary's remedies at Beneficiary's request, and in
accordance with Beneficiary's directions as to the manner of such exercise or
waiver. Trustee may, however, decline to follow Beneficiary's request or
direction if Trustee shall be advised by counsel that the action or proceeding,
or manner thereof, so directed may not lawfully be taken or waived.
7.2 Rights and Privileges of Trustee. To the extent that this Deed of Trust
requires Grantor to reimburse Beneficiary for any expenditures Beneficiary may
incur, Trustee shall be entitled to the same rights to reimbursement of expenses
as Beneficiary, subject to such limitations and conditions as would apply in the
case of Beneficiary. To the extent that this Deed of Trust negates or limits
Beneficiary's liability as to any matter, Trustee shall be entitled to the same
negation or limitation of liability. To the extent that Grantor, pursuant to
this Deed of Trust, appoints Beneficiary as Grantor's attorney in fact for any
purpose, Beneficiary or (when so instructed by Beneficiary) Trustee shall be
entitled to act on Grantor's behalf without joinder or confirmation by the
other.
7.3 Authority of Beneficiary. If Beneficiary is a banking corporation, state
banking corporation or a national banking association and the instrument of
appointment of any successor or replacement Trustee is executed on Beneficiary's
behalf by an officer of such corporation, state banking corporation or national
banking association, then such appointment may be executed by any authorized
officer or agent of Beneficiary and such appointment shall be conclusively
presumed to be executed with authority and shall be valid and sufficient without
proof of any action by the board of directors or any superior officer of
Beneficiary.
7.4 Effect of Appointment of Successor Trustee. The Trustee may resign by the
giving of notice of such resignation in writing to the Beneficiary. If the
Trustee shall die, resign or become disqualified from acting in the execution of
this trust, or shall fail or refuse to exercise the same when requested by the
Beneficiary to do so, or if for any reason and without cause the Beneficiary
shall prefer to appoint a substitute trustee to act instead of the original
Trustee named herein, or any prior successor or substitute trustee, the
Beneficiary shall have full power to appoint a substitute trustee and, if
preferred, several substitute trustees in succession. Upon the appointment and
designation of any successor, substitute or replacement Trustee, Trustee's
13
entire estate and title in the Mortgaged Property shall vest in the designated
successor, substitute or replacement Trustee. Such successor, substitute or
replacement Trustee shall thereupon succeed to and shall hold, possess and
execute all the rights, powers, privileges, immunities and duties herein
conferred upon Trustee. All references herein to Trustee shall be deemed to
refer to Trustee (including any successor or substitute appointed and designated
as herein provided) from time to time acting hereunder.
7.5 Confirmation of Transfer and Succession. Any new Trustee 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 his 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 any successor, substitute or replacement Trustee, any
former Trustee ceasing to act shall execute and deliver an instrument
transferring to such successor, substitute or replacement Trustee all of the
right, title, estate and interest in the Mortgaged Property of Trustee so
ceasing to act, together with all the rights, powers, privileges, immunities and
duties herein conferred upon Trustee, and shall duly assign, transfer and
deliver all properties and moneys held by said Trustee hereunder to said
successor, substitute or replacement Trustee.
7.6 Exculpation. Trustee shall not be liable for any error of judgment or act
done by Trustee in good faith, or otherwise be responsible or accountable under
any circumstances whatsoever, except for Trustee's gross negligence, willful
misconduct or knowing violation of law. Trustee shall not be personally liable
in case of entry by him, or anyone entering by virtue of the powers herein
granted him, upon the Mortgaged Property for debts contracted or liability or
damages incurred in the management or operation of the Mortgaged 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 it
hereunder, believed by it in good faith to be genuine. 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). Trustee
shall be under no liability for interest on any moneys received by it hereunder.
7.7 Endorsement and Execution of Documents. Upon Beneficiary's written request,
Trustee shall, without liability or notice to Grantor, execute, consent to, or
join in any instrument or agreement in connection with or necessary to
effectuate the purposes of the Credit Documents. Grantor hereby irrevocably
designates Trustee as its attorney in fact to execute, acknowledge and deliver,
on Grantor's behalf and in Grantor's name, all instruments or agreements
necessary to implement any provision(s) of this Deed of Trust or to further
perfect the lien created by this Deed of Trust on the Mortgaged Property. This
power of attorney shall be deemed to be coupled with an interest and shall
survive any disability of Grantor.
7.8 Multiple Trustees. If Beneficiary appoints multiple trustees, then any
Trustee, individually, may exercise all powers granted to Trustee under this
instrument, without the need for action by any other Trustee(s).
7.9 No Required Action. Trustee shall not be required to take any action under
this Deed of Trust or to institute, appear in or defend any action, suit or
other proceeding in connection therewith where in his opinion such action will
be likely to involve him in expense or liability,
14
unless requested so to do by a written instrument signed by Beneficiary and, if
Trustee so requests, unless Trustee is tendered security and indemnity
satisfactory to him against any and all costs, expense and liabilities arising
therefrom. Trustee shall not be responsible for the execution, acknowledgment or
validity of the Credit Documents, or for the proper authorization thereof, or
for the sufficiency of the lien and security interest purported to be created
hereby, and makes no representation in respect thereof or in respect of the
rights, remedies and recourses of Beneficiary.
7.10 Terms of Trustee's Acceptance. Trustee accepts the trust created by this
Deed of Trust upon the following terms and conditions:
(a) DELEGATION. Trustee may exercise any of its powers through
appointment of attorney(s) in fact or agents, to the extent permitted by
applicable law.
(b) SECURITY. Trustee shall be under no obligation to take any action
upon any Event of Default unless furnished security or indemnity, in form
satisfactory to Trustee, against costs, expenses, and liabilities that Trustee
may incur.
(c) COSTS AND EXPENSES. Grantor shall reimburse Trustee, as part of
the Loan Obligations secured hereunder, for all reasonable disbursements and
expenses (including reasonable legal fees and expenses) incurred by reason of or
arising from an actionable Default and as provided for in this Deed of Trust,
including any of the foregoing incurred in Trustee's administering and executing
the trust created by this Deed of Trust and performing Trustee's duties and
exercising Trustee's powers under this Deed of Trust. Trustee hereby waives any
and all rights to any statutory compensation as may be provided for under state
laws.
8. Recordation. The Grantor will cause this Deed of Trust and every additional
instrument which shall be executed supplemental or amendatory hereto, or
pursuant to the provisions hereof, forthwith upon execution, to be filed and
recorded as a Deed of Trust and Financing Statement in such manner as may, in
the opinion of the Beneficiary, be required to preserve and protect the lien and
security interest of this Deed of Trust, and will, to the extent permitted by
law, pay all taxes and costs upon such recording and filing, and will punctually
and fully comply with the requirements of any and every mortgage, recording tax
or other law, affecting the due recording and filing of this Deed of Trust and
all other additional instruments.
15
IN WITNESS WHEREOF, the parties hereto have executed this Deed of Trust as of
the date first above written.
XXXXXX AMERICAN CHECKS, INC., a
Delaware corporation
By: /s/ Xxxxx X. Xxxx, Xx.
------------------------------------
Name: Xxxxx X. Xxxx, Xx.
----------------------------------
Title: Chief Financial Officer
---------------------------------
[DEED OF TRUST - SAN ANTONIO, TX]
THE STATE OF New York Section
----------
Section
COUNTY OF New York Section
--------------
This instrument was acknowledged before me on the 14th day of December, 2005, by
Xxxxx X. Xxxx, Xx. [name], CFO [title] of Xxxxxx
--------------------------------- --------------------
American Checks, Inc., a Delaware corporation, on behalf of said corporation.
/s/ Xxxxxxxx X. Xxxxxx
----------------------------------------
Notary Public
My Commission Expires:
----------------------
XXXXXXXX X. XXXXXX
Notary Public, State of New York
No. 02KU6122294
Qualified in Kings County
Commission Expires February 7, 2009
[DEED OF TRUST - SAN ANTONIO, TX]
EXHIBIT A
[Legal Description]
Xxx 0, Xxxxx 0, XXX 00000, TECHNOLOGY PARK, XXXX 0, Xxxx xx Xxx Xxxxxxx, XXXXX
Xxxxxx, Xxxxx, according to plat recorded in Volume 9100, Page 181, Deed and
Plat Records, BEXAR County, Texas.
