DEED OF TRUST
Exhibit
10.9
DEED
OF TRUST
This
combined Deed of Trust (Security Agreement and Financing Statement) (“Deed of
Trust”) is made on the date stated below among the Grantor, Beneficiary and
Trustee who are identified and whose addresses are stated below. By
signing this Deed of Trust, Grantor agrees to the terms and conditions and makes
the covenants stated in this Deed of Trust.
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Date:
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March
23, 0000
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Xxxxxxx:
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XXX
Xxx Xxxxxxx Xxxxxxxxx XX, LP
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Grantor’s
Address:
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0000
Xxxxx Xxxxx, Xxxxx 000
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Xxxxxx,
Xxxxx 00000
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Type
of Organization:
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Limited
Partnership
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Jurisdiction
of Organization:
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Organizational
ID No.:
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800597971
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Beneficiary:
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PlainsCapital
Bank
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Beneficiary’s
Address:
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000
Xxxxxxxx Xxxxxx, Xxxxx 000
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Xxxxxx,
Xxxxx 00000
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Trustee:
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Xxxxx
Xxxxxx
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Trustee’s
Address:
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000
Xxxxxxxx Xxxxxx, Xxxxx 000
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Xxxxxx,
Xxxxx 00000
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Note:
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Promissory
Note dated March 23, 2007, in the original principal amount of
$8,900,000.00 executed by Grantor and payable to Beneficiary as stated in
the Note.
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Land:
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ARTICLE
1
SECURITY
1.01 Conveyance in
Trust. For value received, the receipt and sufficiency of
which Grantor acknowledges, and to secure the payment of the Indebtedness
described in Section 2.01 and performance of the covenants and agreements of
Grantor stated in this Deed of Trust and in the Loan Documents (as hereafter
defined), Grantor conveys the Property described in Section 1.02, including
without limitation the Land, to the Trustee in trust, with power of sale, TO
HAVE AND TO HOLD the Property, together with the rights, privileges, and
appurtenances thereto belonging unto the Trustee and the Trustee's substitutes
or successors forever. Grantor binds itself and its heirs, executors,
administrators, personal representatives, successors, and assigns to WARRANT AND
FOREVER DEFEND the Property unto the Trustee, and the Trustee's substitutes or
successors and assigns, against the claim or claims of all persons claiming or
to claim the same or any part thereof.
1.02 Property. The
Property covered by this Deed of Trust includes the Land and the following items
described in this Section 1.02, whether now owned or hereafter acquired by
Grantor, all of which, including replacements and additions thereto, shall be
deemed to be and remain a part of the Property covered by this Deed of Trust,
and all rights, hereditaments and appurtenances pertaining thereto, all of which
are referred to as the “Property”:
(a) any
and all buildings, improvements, and tenements now or hereafter attached to or
placed, erected, constructed, or developed on the Land (the
“Improvements”);
(b) all
equipment, fixtures, furnishings, inventory, account receivables, and articles
of personal property (the “Personal Property”) now or hereafter attached to or
used in or about the Improvements;
(c) all
proceeds arising from or by virtue of the sale, lease or other disposition of
the Land, the Improvements, or the Personal Property, including any sale by
virtue of eminent domain proceedings;
(d) all
proceeds (including premium refunds) of each policy of insurance relating to the
Land, the Improvements, or the Personal Property;
(e) all
rents, royalties, bonuses, issues, profits, revenues, or other benefits of the
Land or the Improvements or the Personal Property;
(f)
other interests of every kind and character that Grantor now has or at any time
hereafter acquires in and to the Land, Improvements, and Personal Property and
all property that is used or useful in connection therewith, including rights of
ingress and egress and all reversionary rights or interests of Grantor with
respect to such property; and
(g) all
products and proceeds of the Property described in this Section
1.02.
1.03 Subrogation. Any
of the proceeds of the Note utilized to take up any outstanding liens against
all or any part of the Property have been advanced by Beneficiary at Grantor's
request and upon Grantor's representation that such amounts are due and are
secured by valid liens against the Property. Beneficiary shall be
subrogated to any and all rights, powers, superior titles, liens, and equities
owned or claimed by any owner or holder of any outstanding liens and debts,
however remote, regardless of whether said liens or debts are acquired by
Beneficiary by assignment or are released by the holder thereof upon
payment.
Without
limiting the foregoing, it is expressly understood that this Deed of Trust is
given in renewal, extension and modification of, but expressly not in
extinguishment of, the liens contained in the following instrument:
Deed of
Trust dated December 22, 2006 to Xxxxx Xxxxxx, Trustee recorded under Volume
12685, Page 65 of the Official Public Records of Bexar County,
Texas.
1.04 Assignment of Rents,
Profits, Etc. Grantor hereby assigns to Beneficiary, and
grants to Beneficiary a security interest in, all of the rents, royalties,
bonuses, issues, profits, revenue, income and other benefits derived from the
Property or arising from the use or enjoyment of any portion thereof or from any
lease or agreement pertaining thereto, and liquidated damages following default
under such leases, and all proceeds payable under any policy of insurance
covering loss of rents resulting from untenantability caused by damage to any
part of the Property, together with any and all rights that Grantor may have
against any tenant under such leases or any subtenants or occupants of any part
of the Property (hereinafter called the “Rents”).
1.05 Assignment of
Leases. Grantor hereby assigns to Beneficiary, and grants to
Beneficiary a security interest in, all existing and future leases, including
subleases thereof, and any and all extensions, renewals, modifications and
replacements thereof, upon any part of the Property (the
“Leases”). Grantor hereby further assigns to Beneficiary, and grants
to Beneficiary a security interest in, all guaranties of tenants' performance
under the Leases. Prior to foreclosure, Grantor shall have the right,
without joinder of Beneficiary, to enforce the Leases, unless Beneficiary
directs otherwise.
ARTICLE
2
INDEBTEDNESS AND
PAYMENTS
2.01 Indebtedness. The
indebtedness secured by this Deed of Trust (the “Indebtedness”) shall mean and
include the following:
(a) Any
and all sums becoming due and payable pursuant to the Note;
(b) Any
and all other sums becoming due and payable by Grantor (or any one or more of
them, if more than one) to Beneficiary as a result of advancements made by
Beneficiary pursuant to the terms and conditions of this Deed of Trust or any
loan agreement, tri-party financing agreement, security agreement, guaranty
agreement or other agreement or instrument pertaining to the disbursement and
use of the proceeds of the Note or given to secure the Note (all of which
documents are collectively referred to herein as the “Loan Documents”, and
individually as a “Loan Document”);
(c) Any
and all other indebtedness owed by Grantor to Beneficiary presently existing or
which may in any manner or means hereafter be incurred by Grantor and evidenced
in any manner whatsoever, either by promissory notes, open accounts, advances,
overdrafts, bookkeeping entries, surety agreements, guaranties or any other
method or means; and
(d) Any
and all renewals, extensions, replacements, rearrangements, substitutions, or
modifications of the Indebtedness, or any part of the Indebtedness.
2.02 Payment of Principal and
Interest. Grantor shall promptly pay when due the principal of
and interest on the Indebtedness evidenced by the Note, any prepayment and late
charges provided in the Note, and all other sums secured by this Deed of
Trust.
2.03 Application of
Payments. Unless applicable law provides otherwise, all
payments received by Beneficiary from Grantor under the Note or this Deed of
Trust shall be applied by Beneficiary in the following order of
priority: (a) amounts payable to Beneficiary by Grantor under this
Deed of Trust; (b) sums payable to Beneficiary under the Note, to be applied to
principal or interest as Beneficiary may determine in its discretion; and (c)
any other sums secured by this Deed of Trust in such order as Beneficiary, at
Beneficiary's option, may determine.
2.04 Guarantor. The
term “Guarantor” shall include any person, company or entity obligated to pay or
guaranteeing collection of all or any portion of the Indebtedness, directly or
indirectly.
ARTICLE
3
SECURITY
AGREEMENT
3.01 Uniform Commercial Code
Security Agreement. This Deed of Trust is also intended to be
a security agreement between Grantor, as debtor, and Beneficiary, as secured
party, pursuant to the Texas Uniform Commercial Code [Texas Business and
Commerce Code Section 1.01, et seq. (“Texas UCC”)] for any of the items
specified above as part of the Property which, under applicable law, may be
subject to a security interest pursuant to the Texas UCC, and Grantor hereby
grants Beneficiary a security interest in all such items. Grantor
agrees that Beneficiary may file this Deed of Trust, or a reproduction thereof,
in the real estate records or other appropriate index, as a financing statement
for any of the items specified above as part of the Property. Any
reproduction of this Deed of Trust or of any other security agreement or
financing statement shall be sufficient as a financing
statement. Grantor hereby irrevocably authorizes Beneficiary to
prepare, execute and file all initial financing statements, and any
restatements, extensions, continuations, renewals or amendments thereof, in such
form as Beneficiary may require to perfect or continue the perfection of this
security interest or other statutory liens held by Beneficiary. In
addition, Grantor agrees to execute and deliver to Beneficiary, upon
Beneficiary's request, any financing statement, as well as extensions, renewals,
and amendments thereof, and reproduction of this Deed of Trust in such form as
Beneficiary may require to perfect a security interest with respect to said
items. Grantor shall pay all costs of filing such financing statement
and any extensions, renewals, amendments, and releases thereof and shall pay all
reasonable costs and expenses of any record searches for financing statements
Beneficiary may reasonably require. Without the prior written consent
of Beneficiary, Grantor shall not create or suffer to be created pursuant to the
Texas UCC any other security interest in said items, including replacements and
additions thereto. Upon the occurrence of an Event of Default (as
that term is defined in Article 5 below), including the covenants to pay when
due all sums secured by this Deed of Trust, Beneficiary shall have the remedies
of a secured party under the Texas UCC and, at Beneficiary's option, may also
invoke the remedies provided in Article 6 of this Deed of Trust as to such
items. In exercising any remedies, Beneficiary may proceed against
the items of real property and any items of personal property specified above as
part of the Property separately or together and in any order whatsoever, without
in any way affecting the availability of Beneficiary's remedies under the Texas
UCC or of the remedies provided in Article 6 of this Deed of Trust.
3.02 Notice of
Changes. Grantor shall give advance notice in writing to
Beneficiary of any proposed change in Grantor's name, identity, or structure and
shall execute and deliver to Beneficiary, prior to or concurrently with the
occurrence of any such change, all additional financing statements that
Beneficiary may require to establish and maintain the validity and priority of
Beneficiary's security interest with respect to any of the
Property.
3.03 Fixtures. Some
of the items of the Property are goods that are or are to become fixtures,
related to the Land. Grantor and Beneficiary intend that, as to those
goods, this Deed of Trust shall be effective as a financing statement filed as a
fixture filing from the date of its filing for record in the real estate records
of the county in which the Property is situated. Information
concerning the security interest created by this Deed of Trust may be obtained
from Beneficiary, as secured party, at the address of Beneficiary stated
above. The mailing address of the Grantor, as debtor, is as stated
above.
ARTICLE
4
GRANTOR'S
REPRESENTATIONS, WARRANTIES,
COVENANTS, AND
AGREEMENTS
Grantor
represents, warrants, and covenants to and agrees with Beneficiary as
follows:
4.01 Payment and
Performance. Grantor shall make all payments on the
Indebtedness when due and shall punctually and properly perform all of Grantor's
covenants, obligations and liabilities under this Deed of Trust and the other
Loan Documents.
4.02 Title to Property and Liens
of this Instrument. Grantor has good and indefeasible title to
the Land and the Improvements, and good and marketable title to the Personal
Property, free and clear of any liens, charges, encumbrances, security
interests, and adverse claims whatsoever, except as otherwise provided
herein. If the interest of Beneficiary in the Property or any part
thereof shall be endangered or shall be attacked, directly or indirectly,
Grantor authorizes Beneficiary, at Grantor's expense, to take all necessary and
proper steps for the defense of such interest, including the employment of
attorneys, the prosecution or defense of litigation, and the compromise or
discharge of claims made against such interest.
4.03 Title
Insurance. If required by Beneficiary, Grantor shall, at its
sole cost and expense, obtain and maintain mortgagee title insurance (in the
form of a commitment, binder, or policy as Beneficiary may require) in form
acceptable to Beneficiary in an amount equal to the amount of the
Note.
4.04 Taxes and
Assessments. Grantor shall pay all taxes and assessments
against or affecting the Property as the same become due and payable, and, upon
request by Beneficiary, Grantor shall deliver to Beneficiary such evidence of
the payment thereof as Beneficiary may require. If Grantor fails to
do so, Beneficiary may pay them, together with all costs and penalties thereon,
at Grantor's expense; provided, however, that Grantor may in good faith, in lieu
of paying such taxes and assessments as they come due and payable, by
appropriate proceedings, contest their validity. Pending such
contest, Grantor shall not be deemed in default under this Deed of Trust because
of such nonpayment if: (a) prior to delinquency of the asserted tax
or assessment, Grantor furnishes Beneficiary an indemnity bond secured by a
deposit in cash or other security acceptable to Beneficiary, or with a surety
acceptable to Beneficiary, in the amount of the tax or assessment being
contested by Grantor plus a reasonable additional sum to pay all costs, interest
and penalties that may be imposed or incurred in connection therewith,
conditioned that such tax or assessment, with interest, cost and penalties, be
paid as herein stipulated; and (b) Grantor promptly pays any amount adjudged by
a court of competent jurisdictions to be due, with all costs, penalties and
interest thereon, on or before the date such judgment becomes
final. In any event, the tax, assessment, penalties, interest, and
costs shall be paid prior to the date on which any writ or order is issued under
which the Property or any part of the Property may be sold in satisfaction
thereof.
4.05 Insurance. Grantor
shall, at its sole cost and expense, obtain and maintain insurance upon and
relating to all insurable Property by all-risk insurance policies and, if
requested by Beneficiary, shall include perils of collapse, flood, and
earthquake, as well as other insurance coverages, all in form and in companies
acceptable to Beneficiary, in amounts equal to 100% of the replacement cost of
the Improvements during the construction thereof and at least 100% of the
replacement cost of the Improvements not under construction, or in such
additional amounts as Beneficiary may require, with loss made payable to
Beneficiary and with a standard form mortgage clause. Grantor shall
deliver the policies of insurance to Beneficiary promptly as issued; and, if
Grantor fails to do so, Beneficiary, at its option, may procure such insurance
at Grantor's expense. All renewal and substitute policies of
insurance shall be delivered at the office of Beneficiary, premiums paid, at
least ten (10) days before termination of policies theretofore delivered to
Beneficiary. In case of loss, Beneficiary, at its option, shall be
entitled to receive and retain the proceeds of the insurance policies, applying
the same to payment of the Indebtedness in such order and manner as Beneficiary,
in its sole discretion, may elect. If any loss shall occur at any
time when Grantor shall be in default hereof, Beneficiary shall be entitled to
the benefit of all insurance held by or for any Grantor, to the same extent as
if it had been made payable to Beneficiary, and upon foreclosure hereunder
Beneficiary shall become the owner thereof.
4.06 Tax and Insurance
Escrow.
(a) Subject
to applicable law or to a written waiver by Beneficiary, Grantor shall pay to
Beneficiary on a day each month to be designated by Beneficiary, until the Note
is paid in full, a sum (“Funds”) equal to (i) one-twelfth of the yearly taxes
and assessments which may be levied on the Property as reasonably estimated
initially and from time to time by Beneficiary on the basis of assessments and
bills and reasonable estimates thereof, plus (ii) one-twelfth of the yearly
insurance premiums. Any waiver by Beneficiary of a requirement that
Grantor pay such Funds may be revoked by Beneficiary, in Beneficiary's sole
discretion, at any time upon notice in writing to
Grantor. Beneficiary may require Grantor to pay to Beneficiary, in
advance, such other Funds for other taxes, charges, premiums, assessments and
impositions in connection with Grantor or the Property which Beneficiary shall
reasonably deem necessary to protect Beneficiary's interests (“Other
Impositions”). Unless otherwise provided by applicable law,
Beneficiary may require Funds for Other Impositions to be paid by Grantor in a
lump sum or in periodic installments, at Beneficiary's option.
(b) If
the amount of the Funds held by Beneficiary shall exceed the amount deemed
necessary by Beneficiary to provide for payment of water and sewer rates, taxes,
assessments, and Other Impositions, as they fall due, such excess shall be
credited to Grantor on the next installment or installments of Funds
due. If at any time the amount of the Funds held by Beneficiary shall
be less than the amount deemed necessary by Beneficiary to pay water and sewer
rates, taxes, assessments, and Other Impositions, as they fall due, Grantor
shall pay to Beneficiary any amount necessary to make up the deficiency within
thirty (30) days after notice from Beneficiary to Grantor requesting payment
thereof.
4.07 Condemnation.
(a) Grantor
assigns to Beneficiary all judgments, decrees, and awards for injury or damage,
direct or consequential, to the Property, and all awards pursuant to proceedings
for condemnation or other taking, whether direct or indirect, of the Property or
any part of the Property. Beneficiary may apply any proceeds from
such sources to the Indebtedness in such manner as Beneficiary may
elect. Grantor shall promptly notify Beneficiary of any action or
proceeding (or threatened action or proceeding) relating to any condemnation or
other taking, whether direct or indirect, of all or any part of the
Property. Grantor shall, unless otherwise directed by Beneficiary in
writing, file or defend its claim under any such action and prosecute same with
due diligence to its final disposition and shall cause any awards or settlements
to be paid over to Beneficiary for disposition pursuant to the terms of this
Deed of Trust. Grantor authorizes Beneficiary, at Beneficiary's
option, as attorney-in-fact for Grantor, to commence, appear in, and prosecute,
in Beneficiary's or Grantor's name, any action or proceeding relating to any
condemnation or other taking of the Property, whether direct or indirect, and to
settle or compromise any claim in connection with such condemnation or other
taking. The proceeds of any award, payment, or claim for damages,
direct or consequential, in connection with any condemnation or other taking,
whether direct or indirect, of the Property, or part thereof, or for conveyances
in lieu of condemnation, are hereby assigned to and shall be paid to
Beneficiary. Beneficiary shall be entitled to participate in,
control, and be represented by attorneys of Beneficiary's own choice in any such
action. Grantor shall deliver, or cause to be delivered, to
Beneficiary such instruments as may be requested by it from time to time to
permit such participation.
(b) Grantor
authorizes Beneficiary to apply such awards, payments, proceeds, or damages,
after the deduction of Beneficiary's expenses incurred in the collection of such
amounts, at Beneficiary's option, to restoration or repair of the Property, or
to payment of the sums secured by this Deed of Trust, whether or not then due,
in the order of application set forth in Section 2.03, with the balance, if any,
to Grantor. Unless Grantor and Beneficiary otherwise agree in
writing, any application of proceeds to principal shall not extend or postpone
the due date of the installments due under the Note or other payments required
by this Deed of Trust, or change the amount of such installments or
payments. Grantor agrees to execute such further evidence of
assignment of any awards, proceeds, damages, or claims arising in connection
with such condemnation or taking as Beneficiary may require.
(c) In
the event Beneficiary, as a result of any such judgment, decree, or award,
reasonably believes that the payment or performance of any obligation secured by
this Deed of Trust is impaired, Beneficiary may, without notice, declare all of
the Indebtedness immediately due and payable.
4.08 Statements by
Grantor. At the request of Beneficiary, Grantor shall furnish
promptly a written statement or affidavit, in such form as may be required by
Beneficiary, stating the unpaid balance of the Note, the date to which interest
has been paid and that there are no offsets or defenses against full payment of
the Note and performance of the terms of the Loan Documents, or, if there are
any such offsets or defenses, specifying them.
4.09 Repair, Waste, Alterations,
Etc. Grantor shall keep every part of the Property in good
operating order, repair, and condition and shall not commit or permit any waste
thereof. Grantor shall make promptly all repairs, renewals, and
replacements necessary to such end. Grantor shall discharge all
claims for labor performed and material furnished therefor, and shall not suffer
any lien of mechanics or materialmen to attach to any part of the
Property. Grantor shall have the right to contest in good faith the
validity of any such mechanic's or materialman's lien, provided Grantor shall
first furnish Beneficiary a bond or other security satisfactory to Beneficiary
in such amount as Beneficiary shall reasonably require, but not more than one
hundred fifty percent (150%) of the amount of the claim, and provided further
that Grantor shall thereafter diligently proceed to cause such lien to be
removed and discharged. If Grantor shall fail to discharge any such
lien, then, in addition to any other right or remedy of Beneficiary, Beneficiary
may, but shall not be obligated to, discharge the lien, either by paying the
amount claimed to be due, or by procuring the discharge of such lien by
depositing in court a bond for the amount claimed, or otherwise giving security
for such claim, or by taking such action as may be prescribed by
law. Grantor shall guard every part of the Property from removal,
destruction, and damage, and shall not do or suffer to be done any act whereby
the value of any part of the Property may be lessened.
Grantor
or any tenant or other person shall not materially alter the Property without
the prior written consent of Beneficiary.
4.10 Compliance with
Laws. Grantor, the Property, and Grantor's use of the Property
shall comply with all laws, rules, ordinances, regulations, covenants,
conditions, restrictions, orders and decrees of any governmental authority or
court applicable to Grantor or the Property and its use, and Grantor shall pay
all fees or charges of any kind in connection therewith. Grantor
shall not initiate, participate in, or acquiesce in a change in the zoning
classification of the Property without Beneficiary's prior written
consent.
4.11 Hold
Harmless. Grantor shall defend, at Grantor's own cost and
expense, and hold Beneficiary harmless from, any proceeding or claim in any way
relating to the Property or the Loan Documents. All costs and
expenses incurred by Beneficiary in protecting its interests under this Deed of
Trust, including all court costs and reasonable attorneys' fees and expenses,
shall be borne by Grantor. The provisions of this Section shall
survive the payment in full of the Indebtedness and the release of this Deed of
Trust as to events occurring and causes of action arising before such payment
and release.
4.12 Further
Assurances. Grantor, upon the request of Beneficiary, shall
execute, acknowledge, deliver, and record such further instruments and do such
further acts as may be necessary, desirable, or proper to carry out the purposes
of this Deed of Trust or the other Loan Documents and to subject to the liens
and security interests created by this Deed of Trust or the other Loan Documents
any property intended to be covered by this Deed of Trust and the other Loan
Documents pursuant to their terms, including without limitation any renewals,
additions, substitutions, replacements, improvements, or appurtenances to the
Property.
4.13 Recording and
Filing. Grantor shall cause this Deed of Trust and the other
recordable Loan Documents and all amendments, supplements, extensions, and
substitutions thereof to be recorded, filed, re-recorded, and refiled in such
manner and in such places as Beneficiary shall reasonably
request. Grantor shall pay all such recording, filing, re-recording,
and refiling fees, title insurance premiums, and other charges.
4.14 Payment of
Debts. Grantor shall promptly pay when due all obligations
regarding the ownership and operation of the Property, except any such
obligations which are being diligently contested in good faith by appropriate
proceedings and as to which Grantor, if requested by Beneficiary, shall have
furnished to Beneficiary security satisfactory to Beneficiary.
4.15 Modification by Subsequent
Owners. Grantor agrees that Grantor shall be bound by any
modification of this Deed of Trust or any of the other Loan Documents made by
Beneficiary and any subsequent owner of the Property, with or without notice to
such Grantor, and no such modifications shall impair the obligations of such
Grantor under this Deed of Trust or any other Loan Document. Nothing
in this Section shall be construed as permitting any transfer of the Property
which would constitute an Event of Default under other provisions of this Deed
of Trust.
4.16 Inspection. Beneficiary
may make or cause to be made reasonable entries upon and inspections of the
Property.
4.17 Protection of Beneficiary's
Security.
(a) If
Grantor fails to perform the covenants and agreements contained in this Deed of
Trust, or if any action or proceeding is commenced which affects the Property or
title thereto or the interest of Beneficiary therein, including without
limitation eminent domain, insolvency, code enforcement, or arrangements or
proceedings involving a bankrupt or decedent, then Beneficiary, at Beneficiary's
option, may make such appearances, disburse such sums and take such action as
Beneficiary deems necessary, in its sole discretion, to protect Beneficiary's
interest.
(b) Any
amounts disbursed by Beneficiary pursuant to this Section 4.17, with interest
thereon, shall become additional indebtedness of Grantor secured by this Deed of
Trust. Unless Grantor and Beneficiary agree to other terms of
payment, such amounts shall be immediately due and payable and shall bear
interest from the date of disbursement at the rate stated in the Note unless
collection from Grantor of interest at such rate would be contrary to applicable
law, in which event such amounts shall bear interest at the highest non-usurious
rate which may be collected from Grantor under applicable
law. Grantor covenants and agrees that Beneficiary shall be
subrogated to the lien of any mortgage or other lien discharged, in whole or in
part, by the Indebtedness. Nothing contained in this Section 4.17
shall require Beneficiary to incur any expense or take any action under this
Deed of Trust.
4.18 Subordinate Deed of
Trust. Grantor shall not, without the prior written consent of
Beneficiary, grant any lien, security interest, or other encumbrance (a
“Subordinate Deed of Trust”) covering any of the Property. If
Beneficiary consents to a Subordinate Deed of Trust or if the foregoing
prohibition is determined by a court of competent jurisdiction to be
unenforceable, any such Subordinate Deed of Trust shall contain express
covenants to the effect that: (a) the Subordinate Deed of Trust is
unconditionally subordinate to this Deed of Trust; and (b) written notice of
default under the Subordinate Deed of Trust and written notice of the
commencement of any action (whether judicial or pursuant to a power of sale) to
foreclose or otherwise enforce the Subordinate Deed of Trust shall be given to
Beneficiary with or immediately after the occurrence of any such default or
commencement.
4.19 Liens. Grantor
shall promptly discharge any lien which has, or may have, priority over or
equality with, the lien of this Deed of Trust, and Grantor shall pay, when due,
the claims of all persons supplying labor or materials to or in connection with
the Property. Without Beneficiary's prior written permission, Grantor
shall not allow any lien inferior to this Deed of Trust to be perfected against
the Property.
4.20 Mineral
Production. Grantor will not permit the drilling or exploring
for, or extraction, removal, or production of minerals (which shall include oil,
gas, casinghead gas, coal, lignite, hydrocarbons, methane, carbon dioxide,
helium, uranium, gold, silver and all other natural elements, compounds and
substances, including sand, rock and gravel) from the surface or subsurface of
the Land without Beneficiary's prior written permission.
4.21 Organization and
Power. Grantor (a) is a limited partnership duly organized,
validly existing under the laws of the State of Texas and in good standing under
the laws of the State of Texas, (b) has complied with all conditions
prerequisite to its lawfully doing business in Texas, and (c) has all requisite
partnership power and all governmental certificates of authority, licenses,
permits, qualifications, and documentation to own, lease, and operate its
properties and to carry on its business as now being, and as proposed to be,
conducted, and the execution of this Deed of Trust, the Note and any and all
other Loan Documents is within Grantor's powers, has been duly authorized by all
requisite action, and is not in contravention of law or the Grantor's
partnership agreement.
4.22 Existence of
Grantor. Grantor shall preserve and keep in full force and
effect its existence, rights, franchises, and trade names.
ARTICLE
5
EVENTS OF
DEFAULT
The
occurrence of any one of the following shall be a default under this Deed of
Trust and the Loan Documents (“Event of Default”):
5.01 Failure to Pay
Indebtedness. Any of the Indebtedness is not paid when due,
whether by acceleration or otherwise, subject to any notice and opportunity to
cure provisions in the Note.
5.02 Nonperformance of
Covenants. Any covenant in this Deed of Trust or any of the
other Loan Documents is not fully and timely performed, or the occurrence of any
default or event of default under this Deed of Trust or any other Loan Document,
subject to any notice and opportunity to cure provisions in the
Note.
5.03 False
Representation. Any statement, representation or warranty in
this Deed of Trust or any of the other Loan Documents, any financial statement,
or any other writing delivered to Beneficiary in connection with the
Indebtedness is false, misleading, or erroneous in any material
respect.
5.04 Bankruptcy or
Insolvency. The owner of the Property or any person obligated
to pay any part of the Indebtedness:
(a) does
not pay its debts as they become due or admits in writing its inability to pay
its debts or makes a general assignment for the benefit of creditors;
or
(b) commences
any case, proceeding, or other action seeking reorganization, arrangement,
adjustment, liquidation, dissolution, or composition of it or its debts under
any law relating to bankruptcy, insolvency, reorganization, or relief of
debtors; or
(c) in
any involuntary case, proceeding, or other action commenced against it which
seeks to have an order for relief entered against it, as debtor, or seeks
reorganization, arrangement, adjustment, liquidation, dissolution, or
composition of it or its debts under any law relating to bankruptcy, insolvency,
reorganization, or relief of debtors, (i) fails to obtain a dismissal of such
case, proceeding or other action within sixty (60) days of its commencement, or
(ii) converts the case from one chapter of the Federal Bankruptcy Code to
another chapter, or (iii) is the subject of an order for relief; or
(d) conceals,
removes, or permits to be concealed or removed, any part of its property, with
intent to hinder, delay, or defraud its creditors or any of them, or makes or
suffers a transfer of any of its property which may be fraudulent under any
bankruptcy, fraudulent conveyance, or similar law; or makes any transfer of its
property to or for the benefit of a creditor at a time when other creditors
similarly situated have not been paid; or suffers or permits, while insolvent,
any creditor to obtain a lien upon any of its property through legal proceedings
which is not vacated within sixty (60) days from the date thereof;
or
(e) has
a trustee, receiver, custodian, or other similar official appointed for or take
possession of all or any part of the Property or any other of its property or
has any court take jurisdiction of any other of its property which remains in
place for a period of sixty (60) days (except where a shorter period is
specified in the immediately following paragraph (f)); or
(f)
fails to have discharged within a period of ten (10) days any attachment,
sequestration, or similar writ levied upon any property of such person;
or
(g) fails
to pay immediately any final money judgment against such person.
5.05 Transfer of the
Property. Title to all or any part of the Property (other than
obsolete or worn Personal Property replaced by adequate substitutes of equal or
greater value than the replaced items when new) shall become vested in any party
other than Grantor, whether by operation of law or
otherwise. Beneficiary may, in its sole discretion, waive this Event
of Default, but it shall have no obligation to do so, and any waiver may be
conditioned upon such one or more of the following which Beneficiary may
require: (a) the grantee's integrity, reputation, character,
creditworthiness, and management ability being satisfactory to Beneficiary in
its sole judgment; and (b) grantee executing, prior to such sale or transfer, a
written assumption agreement containing such terms as Beneficiary may require,
such as a principal paydown on the Note, an increase in the rate of interest
payable under the Note, a transfer fee, and any other modification of the Note,
this Deed of Trust or any of the other Loan Documents which Beneficiary may
require.
5.06 Grant of Inferior
Liens. Without the prior written consent of Beneficiary,
Grantor creates, places or permits to be created or placed or allow to remain
any mortgage, deed of trust, pledge, lien, security interest, encumbrance or
charge, save and except this Deed of Trust, whether constitutional, statutory or
otherwise, regardless of whether same is expressly subordinate to the liens and
security interests set forth in this Deed of Trust with respect to the
Property.
5.07 Grant of Easement,
Etc. Without the prior written consent of Beneficiary,
Grantor grants any easement or dedication, files any plat, condominium
declaration, or restriction, or otherwise encumbers the Property, unless such
action is expressly permitted by this Deed of Trust or any of the other Loan
Documents.
5.08 Abandonment. Grantor
abandons or vacates any of the Property.
5.09 Foreclosure of Other
Liens. The holder of any lien, security interest or assignment
on the Property institutes foreclosure or other proceedings for the enforcement
of its remedies thereunder.
5.10 Liquidation, Death,
Etc. The liquidation, termination, dissolution, failure to
maintain good standing in the State of Texas (if applicable), death, or legal
incapacity of Grantor or any Guarantor.
5.11 Material, Adverse
Change. The occurrence of any material, adverse change in the
financial condition of Grantor or any Guarantor.
5.12 Default by
Partner. A default by any general partner under Grantor's
partnership agreement.
5.13 Other
Defaults. The occurrence of any other event or condition
specified herein or in any of the Loan Documents as being a
default.
ARTICLE
6
DEFAULT AND
REMEDIES
6.01 Acceleration and Waiver of
Notices. Upon the occurrence of an Event of Default,
Beneficiary, at Beneficiary's option, may declare all of the sums secured by
this Deed of Trust to be immediately due and payable without further demand and
may invoke the power of sale and any other remedies permitted by applicable law
or provided herein. Grantor acknowledges that the power of sale
granted to Beneficiary may be exercised by Beneficiary without prior judicial
hearing. Grantor and each Guarantor, surety, and endorser of all or
any part of the Indebtedness expressly waive all presentations for payment,
notices of intention to accelerate maturity, notices of acceleration of
maturity, notices of intention to demand payment, demands for payment, protests,
and notices of protest.
6.02 Notice of
Sale. Notice of sale of all or part of the Property by the
Trustee shall be given by posting written notice thereof at the courthouse door
(or other area in the courthouse as may be designated for such public notices)
of the county in which the sale is to be made, and by filing a copy of the
notice in the office of the county clerk of the county in which the sale is to
be made, at least twenty-one (21) days preceding the date of the sale, and if
the Property to be sold is in more than one county a notice shall be posted at
the courthouse door (or other area in the courthouse as may be designated for
such public notices) and filed with the county clerk of each county in which the
Property to be sold is situated. In addition, Beneficiary shall, at
least twenty-one (21) days preceding the date of sale, serve written notice of
the proposed sale by certified mail on Grantor and each debtor obligated to pay
the Indebtedness secured hereby according to the records of
Beneficiary. Service of such notice shall be completed upon deposit
of the notice, enclosed in a postpaid wrapper, properly addressed to such debtor
at the most recent address as shown by the records of Beneficiary, in a post
office or official depository under the care and custody of the United States
Postal Service. The affidavit of any person having knowledge of the
facts to the effect that such service was completed shall be prima facie
evidence of the fact of service. Any notice that is required or
permitted to be given to Grantor may be addressed to Grantor at Grantor's
address as stated in this Deed of Trust. Any notice that is to be
given by certified mail to any other debtor may, if no address for such other
debtor is shown by the records of Beneficiary, be addressed to such other debtor
at the address of Grantor as is shown by the records of
Beneficiary. Notwithstanding the foregoing provisions of this
Section, notice of such sale given in accordance with the requirements of the
applicable laws of the State of Texas in effect at the time of such sale shall
constitute sufficient notice of such sale.
6.03 Trustee's
Sale. Beneficiary may require the Trustee to sell all or part
of the Property, at public auction, to the highest bidder, for cash, at the
county courthouse of the county in Texas in which the Property or any part
thereof is situated, or if the Property is located in more than one county such
sale or sales may be made at the courthouse in any county in which the Property
is situated. All sales shall take place at such area of the
courthouse as shall be properly designated from time to time by the
commissioners court (or, if not so designated by the commissioners court, at
such other area in the courthouse as may be provided in the notice of sale
hereinafter described) of the specified county, between the hours of 10:00
o'clock a.m. and 4:00 o'clock p.m. (the commencement of such sale to occur
within three hours following the time designated in the above described notice
of sale as the earliest time at which such sale shall occur, if required by
applicable law) on the first Tuesday of any month, after giving notice of the
time, place and terms of said sale (including the earliest time at which such
sale shall occur) and of the Property to be sold in the manner hereinafter
described. Trustee may sell all or any portion of the Property,
together or in lots or parcels. In no event shall Trustee be required
to exhibit, present or display at any such sale any of the Personal Property
described herein to be sold at such sale. Beneficiary may bid and
become the purchaser of all or any part of the Property at any trustee's or
foreclosure sale hereunder, and the amount of Beneficiary's successful bid may
be credited on the Indebtedness.
6.04 Partial
Sales. The sale by Trustee of less than the whole of the
Property shall not exhaust the power of sale herein granted, and Trustee is
specifically empowered to make successive sales under such power until the whole
of the Property shall be sold; and if the proceeds of such sale of less than the
whole of the Property shall be less than the aggregate of the Indebtedness and
the expenses thereof, this Deed of Trust and the lien, security interest and
assignment hereof shall remain in full force and effect as to the unsold portion
of the Property just as though no sale had been made; provided, however, that
Grantor shall never have any right to require the sale of less than the whole of
the Property, but Beneficiary shall have the right, at its sole election, to
request Trustee to sell less than the whole of the Property. If there
is a default on the payment of any installment on the Note or any portion of the
Indebtedness, and Beneficiary elects not to accelerate the unpaid balance of the
Note or Indebtedness, Beneficiary shall have the option to proceed with
foreclosure in satisfaction of such unpaid installment or other amount either
through judicial proceedings or by directing Trustee to proceed as if under a
full foreclosure, conducting the sale as herein provided without declaring the
entire Indebtedness due. It is agreed that such sale, if so made,
shall not in any manner affect the unmatured part of the Indebtedness, but as to
such unmatured part this Deed of Trust shall remain in full force and effect as
though no sale had been made under the provisions of this
Section. Several sales may be made hereunder without exhausting the
right of sale for any unmatured part of the Indebtedness.
6.05 Foreclosure of all
Property. The Land, Improvements, and Personal Property may be
sold in one or more public sales pursuant to Texas Property Code Section 51.002
and Texas UCC Section 9.610. Grantor and all persons obligated to pay
the Indebtedness agree that notice of sale of the Property provided pursuant to
Section 6.02 above and pursuant to Texas Property Code Section 51.002 is and
shall constitute commercially reasonable notice of the sale of the Property or
any part of the Property. Beneficiary shall also be entitled to
foreclose its security interests against the Personal Property in accordance
with any other rights and remedies Beneficiary may have as a secured party under
the Texas UCC.
6.06 Trustee's
Deed. Trustee shall deliver to the purchaser a Trustee's deed
and such other assignments and documents of transfer and sale as Trustee may
deem necessary conveying the Property so sold in fee simple with covenants of
general warranty. Grantor covenants and agrees to defend generally
the purchaser's title to the Property against all claims and
demands. At any such sale (a) Grantor hereby agrees, in its behalf
and in behalf of Grantor's heirs, executors, administrators, successors,
personal representatives and assigns, that any and all recitals made in any deed
of conveyance given by Trustee with respect to the identity of Beneficiary, the
occurrence or existence of any default, the acceleration of the maturity of any
of the Indebtedness, the request to sell, the notice of sale, the giving of
notice to all debtors legally entitled thereto, the time, place, terms and
manner of sale, and receipt, distribution and application of the money realized
therefrom, or the due and proper appointment of a substitute Trustee, and,
without being limited by the foregoing, with respect to any other act or thing
having been duly done by Beneficiary or by Trustee hereunder, shall be taken by
all courts of law and equity as prima facie evidence that the statements or
recitals state facts and are without further question to be so accepted, and
Grantor hereby ratifies and confirms every act that Trustee or any substitute
Trustee hereunder may lawfully do in the premises by virtue hereof, and (b) the
purchaser may disaffirm any easement granted, subdivision plat filed, or rental,
lease or other contract made in violation of any provision of this Deed of
Trust, and may take immediate possession of the Property free from, and despite
the terms of, such grant of easement, subdivision plat, or rental, lease or
other contract.
6.07 Proceeds of
Sale. Trustee shall apply the proceeds of the sale in the
following order: (a) to all reasonable costs and expenses of the
sale, including but not limited to, reasonable Trustee's fees and attorney's
fees and costs of title evidence; (b) to all sums secured by this Deed of Trust
in such order as Beneficiary, in Beneficiary's sole discretion, directs; and (c)
the excess, if any, to the person or persons legally entitled
thereto.
6.08 Possession After
Sale. If the Property is sold pursuant to Section 6.03,
Grantor or any person holding possession of the Property through Grantor shall
immediately surrender possession of the Property to the purchaser at such sale
upon the purchaser's written demand. If possession is not surrendered
upon the purchaser's written demand, Grantor or such person shall be a tenant at
sufferance and may be removed by writ of possession or by an action for forcible
entry and detainer.
6.09 Costs and
Expenses. Beneficiary shall be entitled to collect all costs
and expenses incurred in pursuing such remedies, including but not limited to,
attorney's fees and costs of documentary evidence, abstracts, and title
reports.
6.10 Substitute
Trustee. Beneficiary, at Beneficiary's option, with or without
cause, may from time to time remove Trustee and appoint a successor trustee to
any Trustee appointed hereunder without other formality than a designation in
writing. Without conveyance of the Property, the successor trustee
shall succeed to all title, power, and duties conferred upon the Trustee by this
Deed of Trust and by applicable law.
6.11 Remedies
Cumulative. Each remedy provided in this Deed of Trust is
distinct and cumulative to all other rights or remedies under this Deed of Trust
or afforded by law or equity, and may be exercised concurrently, independently,
or successively, in any order whatsoever.
6.12 Forbearance by Beneficiary
Not a Waiver. Any forbearance by Beneficiary in exercising any
right or remedy hereunder, or otherwise afforded by applicable law, shall not be
a waiver of or preclude the exercise of any right or remedy. The
acceptance by Beneficiary of payment of any sum secured by this Deed of Trust
after the due date of such payment shall not be a waiver of Beneficiary's right
to either require prompt payment when due of all other sums so secured or to
declare a default for failure to make prompt payment. The procurement
of insurance or the payment of taxes or other liens or charges by Beneficiary
shall not be a waiver of Beneficiary's right to accelerate the maturity of the
Indebtedness, nor shall Beneficiary's receipts of any awards, proceeds or
damages under Article 4 operate to cure or waive Grantor's default in payment of
sums secured by this Deed of Trust.
6.13 Waiver of
Marshalling. Notwithstanding the existence of any other
security interests in the Property held by Beneficiary or by any other party,
Beneficiary shall have the right to determine the order in which any or all
portions of the Indebtedness are satisfied from the proceeds realized upon the
exercise of the remedies provided in this Article 6. Grantor, any
party who consents to this Deed of Trust, and any party who now or hereafter
acquires a security interest in the Property and who has actual or constructive
notice of this Deed of Trust and Beneficiary's rights and interests under this
Deed of Trust, hereby waive any and all right to require the marshalling of
assets in connection with the exercise of any of the remedies permitted by
applicable law or provided by this Deed of Trust.
ARTICLE
7
HAZARDOUS
MATERIALS
7.01 Hazardous
Materials. For the purposes of this Deed of Trust, “Hazardous
Materials” shall mean (i) any “hazardous waste” as defined by the Resource
Conservation and Recovery Act of 1976 (42 U.S.C. Section 6901 et seq.), as
amended from time to time, and regulations promulgated thereunder; (ii) any
“hazardous substance” as defined by the Comprehensive Environmental Response,
Compensation and Liability Act of 1980 (42 U.S.C. Section 9601 et seq.)
(“CERCLA”), as amended from time to time, and regulations promulgated
thereunder; and (iii) any other substance which by any applicable governmental
requirements and regulations requires special handling or notification of any
federal, state, or local governmental entity in its collection, storage,
treatment, or disposal. Grantor represents and warrants that, except
as is presently used or will be used in the ordinary course of the business of a
nursing home, and in compliance with all applicable federal, state and local
laws and regulations, no Hazardous Materials are now located on the Property,
and neither Grantor nor, to Grantor's knowledge, any other person has ever
caused or permitted any Hazardous Materials to be placed, held, located, or
disposed of on, under, or at the Property or any part
thereof. Grantor agrees to immediately give Beneficiary notice upon
Grantor's acquiring knowledge of the presence of any Hazardous Materials on the
Property, and to promptly comply with any applicable governmental requirements
and regulations requiring the removal, treatment or disposal of such Hazardous
Materials. Beneficiary may, at Grantor's expense, perform
environmental site assessments on the Property for the purpose of determining
whether any Hazardous Materials exist on the Property. Grantor shall
defend, indemnify and hold Beneficiary and Trustee harmless from all liabilities
(including strict liability), costs or expenses resulting from the presence of
Hazardous Materials on the Property. Beneficiary shall have the
right, but not the obligation, to enter onto the Property for the purpose of
taking such actions it deems necessary or advisable to clean up, remove or
otherwise deal with Hazardous Materials on the Property, the expenses of which
shall be paid by Grantor. The representations, covenants, warranties
and indemnifications contained in this Article 7 shall survive the release of
this Deed of Trust.
ARTICLE
8
MISCELLANEOUS
PROVISIONS
8.01 Release. Upon
payment of all sums and the performance of all obligations secured by this Deed
of Trust, Beneficiary shall release this Deed of Trust. Grantor shall
pay Beneficiary's reasonable costs incurred in releasing this Deed of
Trust.
8.02 Grantor and Lien Not
Released. From time to time, Beneficiary may, at Beneficiary's
option, without giving notice to or obtaining the consent of Grantor, Grantor's
successors or assigns or any junior lienholder or Guarantor, without liability
on Beneficiary's part and notwithstanding the existence of an Event of Default,
extend the time for payment of the Indebtedness or any part thereof, reduce the
payments thereon, release anyone liable on any of the Indebtedness, accept a
renewal note or notes therefor, modify the terms and time of payment of the
Indebtedness, release from the liens of this Deed of Trust any part of the
Property, take or release other or additional security, reconvey any part of the
Property, consent to any map or plan of the Property, consent to the granting of
any easement, join in any extension or subordination agreement, and agree in
writing with Grantor to modify the rate of interest or period of amortization of
the Note or change the amount of the installments payable
thereunder. Any actions taken by Beneficiary pursuant to the terms of
this Section 8.02 shall not affect the obligation of Grantor or Grantor's
successors or assigns to pay the sums secured by this Deed of Trust and to
observe the covenants of Grantor contained herein, shall not affect the guaranty
of any person, corporation, partnership, or other entity for payment of the
Indebtedness or any part thereof, and shall not affect the liens or priority of
liens of this Deed of Trust on the Property. Grantor shall pay
Beneficiary a reasonable charge, together with such title insurance premiums and
attorney's fees as may be incurred at Beneficiary's option, for any such action
if taken at Grantor's request.
8.03 Notice. Except
for any notice required under applicable law to be given in another manner, (a)
any notice to Grantor provided for in this Deed of Trust or in the Note shall be
given by mailing such notice by United States mail, postage prepaid, addressed
to Grantor at Grantor's address stated in this Deed of Trust or at such other
address as Grantor may designate by notice to Beneficiary as provided herein,
and (b) any notice to Beneficiary shall be given by United States mail, postage
prepaid, addressed to Beneficiary at Beneficiary's address stated in this Deed
of Trust or to such other address as Beneficiary may designate by notice to
Grantor as provided herein. Any notice provided for in this Deed of
Trust or in the Note shall be deemed to have been given to Grantor or
Beneficiary when given in the manner designated herein, but actual notice,
however given or received, shall always be effective.
8.04 Successors and Assigns
Bound. The covenants and agreements herein contained shall
bind, and the rights hereunder shall inure to, the respective successors and
assigns of Beneficiary and Grantor, subject to the provisions of Section
5.05.
8.05 Joint and Several
Liability. All covenants and agreements of Grantor shall be
joint and several.
8.06 Agents. In
exercising any rights hereunder or taking any actions provided for herein,
Beneficiary may act through its employees, agents or independent contractors as
authorized by Beneficiary.
8.07 Governing
Law. This Deed of Trust shall be governed by the applicable
laws of the State of Texas and the United States of America.
8.08 Severability. In
the event that any provision of this instrument or the Note conflicts with
applicable law, such conflict shall not affect other provisions of this Deed of
Trust or the Note which can be given effect without the conflicting provisions,
and to this end the provisions of this Deed of Trust and the Note are declared
to be severable.
8.09 Usury
Disclaimer. The term “Maximum Lawful Rate” means the maximum
lawful contractual rate of interest, and the term “Maximum Lawful Amount” means
the maximum lawful contractual amount of interest, that are permissible and
nonusurious under applicable state or federal law for the type of loan evidenced
by the Note and the other Loan Documents. All agreements between
Beneficiary, whether now existing or hereafter arising and whether written or
oral, are hereby limited so that in no contingency, whether by reason of demand
for payment or acceleration of the maturity of the Note or any other
circumstance whatsoever, shall the interest contracted for, charged or received
by Beneficiary exceed the Maximum Lawful Amount. If, from any
circumstance whatsoever, interest would otherwise be payable to Beneficiary in
excess of the Maximum Lawful Amount, the interest payable to Beneficiary shall
be reduced to the Maximum Lawful Amount; and if from any circumstance
Beneficiary shall ever receive any interest in excess of the Maximum Lawful
Amount, an amount equal to any excessive interest shall be applied to the
reduction of the principal amount of the Note and not to the payment of
interest, or if such excessive interest exceeds the unpaid principal amount of
the Note such excess shall be refunded to Grantor. All interest paid or agreed
to be paid to Beneficiary shall, to the extent permitted by applicable law, be
amortized, prorated, allocated, and spread throughout the full period until
payment in full of the principal amount of the Note (including the period of any
renewal or extension thereof) so that the interest thereon for such full period
shall not exceed the Maximum Lawful Amount. For purposes of this
paragraph, the term interest shall include all considerations and amounts that
constitute interest under applicable usury law. This paragraph shall
control all agreements between Grantor and Beneficiary.
8.10 Partial
Invalidity. In the event any portion of the sums intended to
be secured by this Deed of Trust cannot be lawfully secured hereby, payments in
reduction of such sums shall be applied first to those portions not secured
hereby.
8.11 Captions. The
captions and headings of the Articles and Sections of this Deed of Trust are for
convenience only and are not to be used to interpret or define the terms and
provisions of this Deed of Trust.
|
GRANTOR:
|
HHC
San Antonio Northwest NC, LP,
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|
a Texas limited partnership
|
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|
By:
|
CapWest
– Texas, LLC,
|
||
|
a Texas limited liability company,
|
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|
General
Partner
|
|||
|
By:
|
/s/ Xxx Xxxxxx
|
||
|
Name: Xxx
Xxxxxx
|
|||
|
Title: Manager
|
|||
|
By:
|
/s/ Xxxxx XxXxxxx
|
||
|
Name: Xxxxx
XxXxxxx
|
|||
|
Title: Manager
|
|||
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STATE
OF TEXAS
|
§
|
|
§
|
|
|
COUNTY
OF XXXXXX
|
§
|
This
instrument was acknowledged before me on March _____, 2007 by Xxx Xxxxxx,
Manager of CapWest – Texas, LLC, a Texas limited liability company, on behalf of
said limited liability company in its capacity as General Partner of HHC San
Antonio Northwest NC, LP, a Texas limited partnership.
|
|
|
|
Notary
Public, State of Texas
|
|
STATE
OF TEXAS
|
§
|
|
§
|
|
|
COUNTY
OF XXXXXX
|
§
|
This
instrument was acknowledged before me on March _____, 2007 by Xxxxx XxXxxxx,
Manager of CapWest – Texas, LLC, a Texas limited liability company, on behalf of
said limited liability company in its capacity as General Partner of HHC San
Antonio Northwest NC, LP, a Texas limited partnership.
|
|
|
|
Notary
Public, State of Texas
|
After recording, please
return to:
Xx. Xxxxx
Xxxxxx
PlainsCapital
Bank
000
Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx,
Xxxxx 00000
