HomeMy WebLinkAbout912424
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RECORDATION REQUESTED BY:
Tolleson Private Bank
5550 Preston Road. Suite B
Dallas. TX 75205-2661
"RECEIVED 10/3/2005 at 4:07 PM
RECEIVING # 912424
BOOK: 600 PAGE: 100
JEANNE WAGNER
LINCOLN COUNTY CLERK, KEMMERER, WY
WHEN RECORDED MAIL TO:
Tolleson Private Bank
5550 Preston Road, Suite B
Dallas, TX 75205-2661
SEND TAX NOTICES TO:
Tolleson Private Bank
5550 Preston Road, Suite B
Dallas. TX 75205-2661
SPACE ABOVE THIS LINE IS FOR RECORDER'S USE ONLY
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CONSTRUCTIQN MORTGAGE
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THIS MORTGAGE dated September 27, 2005, is mad~\and executed between Heath Properties, L.P., whose
address is 2121 Midway Road, Carrollton, TX 75006 (referred to below as "Grantor") ~nd Tolleson Private Bank,
whose address is 5550 Preston Road, Suite B, Dallas, TX 75205-2661 (referred to below as "Lender").
GRANT OF MORTGAGE. For valuable consideration. Grantor mortgages and conveys to lender all of Grantor's right, title, and interest in and to
the following described real property, together with all existing or ~ubsequently erected or affixed buildings, improvements and fixtures; all
easements, rights of way, and appurtenances; all water, water rights, watercourses and ditch rights (including stock in utilities with ditch or
irrigation rights);. and all other rights\, royalties, and pf,0fits relatif1~ to. the real property, including without . limitation all minerals, oil, gas,
geothermal and similar matters, (the Real Property ) locate~ ~n Lincoln County, State of Wyoming:
Lot 16 of Shadow Dancer Estates, Lincoln County~ Wyoming as described on the official plat thereof
The Real Property or its address is commonly known as Lot 16 o( Shadow Dancer Estates, Alpine, WY 83128.
Grantor presently assigns to lender all of Grantor's right, title, and interest in and to all present and future leases of the Property and all Rents
from the Property. In addition, Grantor grants to lender a Unifor~¡Commercial Code security interest in the Personal Property and Rents.
THIS MORTGAGE. INCLUDING THE ASSIGNMENT OF RENTS AND THE SECURITY INTEREST IN THE RENTS AND PERSONAL PROPERTY. IS
GIVEN TO SECURE (AI PAYMENT OF THE INDEBTEDNESS AND (BI PERFORMANCE OF ANY AND All OBLIGATIONS UNDER THE NOTE.
THE RELATED DOCUMENTS, AND THIS MORTGAGE. THIS MORTGAGE IS GIVEN AND ACCEPTED ON THE FOllOWING TERMS:
PA YMENT AND PERFORMANCE. Except as otherwise provided in this Mortgage, Grantor shall pay to lender all amounts secured by this
Mortgage as they become due and shall strictly perform all of Granto¡'s obligations under this Mortgage.
CONSTRUCTION MORTGAGE. This Mortgàge is a "construction mortgage" for the purposes of Sections 9-334 and 2A-309 of the Uniform
Commercial Code, as those sections have been adopted by the State of Wyoming.
POSSESSION AND MAINTENANCE OF THE PROPERTY. Grantor agrees that Grantor's possession and use of the Property shall be governed by
the following provisions:
Possession and Use. Until Default, Grantor may (1) remain in possession and control of the Property; (2) use, operate or manage the
Property; and (3) collect the Rents from the Property.
Duty to Maintain. Grantor shall maintain the Property in tenantable condition and promptly perform all repairs, replacements, and
maintenance necessary to preserve its value.
Compliance With Environmental laws. Grantor represents and warrants to lender that: (11 During the period of Grantor's ownership of
the Property, there has been no use, generation, manufacture: storage, treatment, disposal, release or threatened release of any Hazardous
Substance by any person on, under, about or from the Property; (2) Grantor has no knowledge of, or reason to believe that there has
been, except as previously disclosed to and acknowledged by lender in writing, la) any breach or violation of any Environmental laws,
(b) any use, generation, manufacture, storage, treatment, disposal, release or threatened release of any Hazardous Substance on, under,
about or from the Property by any prior Qwners or occupants, ,,:>f the Property, or (c) ! ny actual or threatened litigation or claims of any
kind by any person relating to such matters; and (3) Except ,1;; previously disclosed to and acknowled'ded by Lender in writing, (a) neither
Grantor nor any tenant, contractor, agent or other authorized u¡;er of the Property shall use, generate, 'manufacture, store, treat, dispose of
or release any Hazardous Substance on, under, about or from the Property; and (b) any such activity shall be conducted in compliance
with all applicable federal. state, and local laws, regulations a~id ordinances, including without limitation all Environmental Laws. Grantor
authorizes lender and its agents to enter upon the Property to make such inspections and tests, at Grantor's expense, as Lender may deem
appropriate to determine compliance of the Property with this section of the Mortgage. Any inspections or tests made by Lender shall be
for lender's purposes only and shall not be construed to create any responsibility or liability on the part of Lender to Grantor or to any other
person, The representations and warranties contained herein are based on Grantor's due diligence in investigating the Property for
Hazardous Substances. Grantor hereby (1) releases and waives any future claims against lender for indemnity or contribution in the
event Grantor becomes liable for cleanup or other costs under any such laws; and (2) agrees ',0 indemnify and hold harmless lender
against any and all claims, losses, liabilities, damages, penalties, and expenses which lender may directly or indirectly sustain or suffer
resulting from a breach of this section of the Mortgage or as a C\3nsequence of any use, generation, manufacture, storage, disposal, release
or threatened release occurring prior to Grantor's ownership or ir'te,rest in the Property, whether or not, the same was or should have been
known to Grantor. The provisions of this section of the Mortga;:'.; including the obligation to indemnrtv, shall survive the payment of the
Indebtedness and the satisfaction and reconveyance of the lien 6f this Mortgage and shall not be aU 3Gted by lender's acquisition of any
interest in the Property, whether by foreclosure or otherwise.
Nuisance. Waste. Grantor shall not cause, conduct or permit any nuisance nor commit, permit, or suffer any stripping of or waste on or to
the Property or any portion of the Property. Without limi~nj! the generality of the foregoing, Grantor will not remove, or grant to any other
party the right to remove, any timber, minerals (including oíl' and gas), coal, clay, scoria, soil, gravel or rock products without Lender's prior
written consent.
Removal of Improvements. Grantor shall not demolishpr renlove any Improvements from the Real Property without lender's prior written
consent. As a condition to the removal of any Improvements, lender may require Grantor to make arrangements satisfactory to lender to
replace such Improvements with Improvements of at least equal value.
lender's Right to Enter. lender and lender's agents and representatives may enter upon the Real Property at all reasonable times to attend
to lender's interests and to inspect the Real Property for purposes of Grantor's corrpliance with the terms and conditions of this Mortgage.
Compliance with Governmental Requirements. Grantor sha!! promptly comply with all laws, ordinances, and regulations, now or hereafter
in effect, of all governmental authorities applicable to the use or occupancy of the Property, including without limitation, the Americans
With Disabilities Act. Grantor may contest in good faith any such law, ordinance, or regulation and withhold compliance during any
proceeding, including appropriate appeals, so long as Grantor has notified Lender in writing prior to doing so and so long as, in Lender's
sole opinion, Lender's interests in the Property are not jeopardized. Lender may re.quire Grantor to post adequate security or a surety bond,
reasonably satisfactory to Lender, to protect lender's intereste
Duty to Protect. Grantor agrees neither to abandon or leave unattended the Property. Grantor shall do all other acts, in addition to those
acts set forth above in this section, which from the character and use of the Property are reasonably necessary to protect and preserve the
Property.
CONSTRUCTION lOAN. If some or all of the proceeds of the loan creating the Indebtedness are to be used to construct or complete
construction of any Improvements on the Property, the Improvements shall be completed no later thail the maturity date of the Note (or such
earlier date as lender may reasonably establish) and Grantor'shall pay in full all costs and expenses in connection with the work. lender will
disburse loan proceeds under such terms and conditions as lender may deem reasonably necessary to insure that the interest created by this
Mortgage shall have priority over all possible liens, including those of material suppliers and workmen. lender may require, among other things,
that disbursement requests be supported by receipted bills, expense affidavits, waivers of liens, construction progress reports, and such other
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0912424
MORTGAGE
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GOOI01
Page 2
Loan No: 13854
documentation as Lender may reasonably request,
DUE ON SALE - CONSENT BY LENDER. Lender may, at Lender's option, declare immediately due and payable all sums secured by this
Mortgage upon the sale or transfer, without Lender's prior written consent, of all or any part of the Real Property, or any interest in the Real
Property, A "sale or transfer" means the conveyance of Real PropHty or any right, title or interest in the Real Property; whether legal, beneficial
or equitable; whether voluntary or involuntary; whether by outri1~lt sale, deed, installment sale contraèt, land contract, contract for deed,
leasehold interest with a term greater than three (3) years, lease-option contract, or by sale, assignment, or transfer of any beneficial interest in
or to any land trust holding title to the Real Property, or by any other method of conveyance pf an interest in the Real Property. If any Grantor is
a corporation, partnership or limited liability company, transfer also i.dudes any change in oWnership of more than twenty-five percent (25%) of
the voting stock, partnership interests or limited liability company inerests, as the case may be, of such Grantor. However, this option shall not
be exercised by Lender if such exercise is prohibited by federal law or by Wyoming law.
TAXES AND LIENS. The following provisions relating to the taxes and liens on the Property are part of this Mortgage:
Payment. Grantor shall pay when due (and in all events prior to delinquency) all taxes, payroll taxes, 'special taxes, assessments, water
charges and sewer service charges levied against or on account of the Property, and shall pay when'dueilll claims for work done on or for
services rendered or material furnished to the Property. Grantor shall maintain the Property free of any liens having priority over or equal to
the interest of Lender under this Mortgage, except for those liens;~pecifically agreed to in writing by Lender, and except for the lien of taxes
and assessments not due as further specified in the Right to Conte,st paragraph,
Right to Contest. Grantor may withhold payment of any tax, Ò!;sessment, or claim in connection with a good faith dispute over the
obligation to pay, so long as Lender's interest in the Property is not jeopardized. If a lien arises or is filed as a result of nonpayment,
Grantor shall within fifteen (15) days after the lien arises or, if a lien is filed, within fifteen (15) days after Grantor has notice of the filing,
secure the discharge of the lien, or if requested by Lender, deposit with lender cash or a sufficient corporate surety bond or other security
satisfactory to Lender in an amount sufficient to discharge :re lien plus any costs and Lender's reasonable attorneys' fees, or other charges
that could accrue as a result of a foreclosure or sale under the lien. In any contest, Grantor shall defend itself and Lender and shall satisfy
any adverse judgment before enforcement against the Property. Grantor shall name Lender as an .additional obligee under any surety bond
furnished in the contest proceedings. "
Evidence of Payment. Grantor shall upon demand furnish to Lender satisfactory evidence of payment of the taxes or assessments and shall
authorize the appropriate governmental official to deliver to Lerder at any time a written statement of the taxes and assessments against
the Property.
Notice of Construction. Grantor shall notify Lender at least fifteen (15) days before any work is comm~nced, any services are furnished, or
any materials are supplied to the Property, if any mechanic's lien, materialmen's lien, or other lien could be asserted on account of the
work, services, or materials. Grantor will upon request of Lerlder furnish to Lender advance assurances satisfactory to Lender that Grantor
can..and will pay the cost of such improvements.
PROPERTY DAMAGE INSURANCE, The following provisions relating to insuring the Property are a part of this Mortgage:
Maintenance of Insurance. Grantor shall procure and maintain policies of fire insurance with standard extended coverage endorsements on
a replacement basis for the full insurable value covering all Improvements on the Real Property in an amount sufficient to avoid application
of any coinsurance clause, and with a standard mortgagee clause in favor of Lender. Grantor shall also procure and maintain
comprehensive general liability insurance in such coverage amuunts as Lender may request with Lender being named as additional insureds
in such liability insurance policies. Additionally, Grantor shall maintain such other insurance, including but not limited to hazard, business
interruption and boiler insurance as Lender may require, Policies shall be written by such insurance companies and in such form as may be
reasonably acceptable to Lender. Grantor shall deliver to Le ider certificates of coverage from each insurer containing a stipulation that
coverage will not be cancelled or diminished without a minimum of thirty (30) days' prior written notice to Lender and not containing any
disclaimer of the insurer's liability for failure to give such notice. Each insurance policy also shall include an endorsement providing that
coverage in favor of Lender will not be impaired in any way by any act, omission or default of Grantor or any other person. Should the Real
Property be located in an area designated by the Director of the Federal Emergency Management Agency as a special flood hazard area,
Grantor agrees to obtain and maintain Federal Flood Insuranc€\, if available, within 45 days after notice is given by Lender that the Property
is located in a special flood hazard area, for the full unpaid principal balance of the loan and any prior liens on the property securing the
loan, lip to the maximum policy limits set under the National Flood Insurance Program, or as otherwise required by Lender, and to maintain
such insurance for the term of the loan.
Application of Proceeds. Grantor shall promptly notify Lender of any loss or damage to the Property. Lender may make proof of loss if
Grantor fails to do so within fifteen (15) days of the casualt\'_ Whether or not Lender's security is impaired, Lender may, at Lender's
election, receive and retain the proceeds of any insurance and apply the proceeds to the reduction of the Indebtedness, payment of any lien
affecting the Property, or the restoration and repair of the Pro :.<;:rty. If Lender elects to apply the proceeds to restoration and repair, Grantor
shall repair or replace the damaged or destroyed Improvements in a manner satisfactory to Lender. Lender shall, upon satisfactory proof of
such expenditure, payor reimburse Grantor from the proceeds for the reasonable cost of repair or restoration if Grantor is not in default
under this Mortgage. Any proceeds which have not been Jisbursed within 180 days after their receipt and which Lender has not
committed to the repair or restoration of the Property shall be used first to pay any amount owing to Lender under this Mortgage, then to
pay accrued interest, and the remainder, if any, shall be applied to the principal balance of the Indebtedness. If Lender holds any proceeds
after payment in full of the Ir:¡debtedness, such proceeds shall be paid to Grantor as Grantor's interests may appear,
Grantor's Report on Insurance. Upon request of Lender, however not more than once a year, Grantor shall furnish to Lender a report on
each existing policy of insurance showing: (1) the name of the insurer; (2) the risks insured; (3) ti;e amount of the policy; (4) the
property insured, the then current replacement value of such property, and the manner of determining that value; and (5) the expiration
date of the policy. Grantor shall, upon request of lender, have é'n independent appraiser satisfactory to Lender determine the cash value
replacement cost of the Property.
LENDER'S EXPENDITURES. If any action or proceeding is commenced tat would materially affect Lender's i:1terest in the Property or if Grantor
fails to comply with any provision of this Mortgage or any Related Doc;urr.ents, including but not limited to Grantor's failure to discharge or pay
when due any amounts Grantor is required to discharge or pay under this Mortgage or any Related Documents, Lender on Grantor's behalf may
(but shall not be obligated to) take any action that Lender deems appropriate, including but not limited to discharging or paying all taxes, liens,
security interests, encumbrances and other claims, at any time 13\!Ìed or placed on the Property and paying all CQsts for insuring, maintaining and
preserving the Property, All such expenditures paid by Lender tor such purposes will then bear interest at the Note rate from the date paid by
Lender to the date of repayment by Grantor. All such expenses will become a part of the Indebtedness and, at Lender's option, will (A) be
payable on demand; (8) be added to the balance of the Note and be apportioned among and be payable with any installment payments to
become due during either (1) the term of any applicable insurahce policy; or (2) the remaining term of the Note; or (C) be treated as a
balloon payment which will be due and payable at the Note's maWrity. The Mortgage also will secure payment of these amounts. Such right
shall be in addition to all other rights and remedies to which Lender may be entitled upon Default.
WARRANTY; DEFENSE OF TITLE. The following provisions relating to ownership of the Property are a part of this Mortgage:
Title. Grantor warrants that: (a) Grantor holds good and marketable title of record to the Property in fee simple, free and clear of all liens
and encumbrances other than those set forth in the Real Property description or in any title insurance policy, title report, or final title opinion
issued in favor of, and accepted by, Lender in connection with this Mortgage, and (b) Grantor has the full right, power, and authority to
execute and deliver this Mortgage to Lender.
Defense of Title. Subject to the exception in the paragraph above, Grantor warrants and will forever defend the title to the Property against
the lawful claims of all persons, In the event any action or proceeding is commenced that questions Grantor's title or the interest of Lender
under this Mortgage, Grantor shall defend the action at Grantor's expense. Grantor may be the nominal party in such proceeding, but
Lender shall be entitled to participate in the proceeding and to be, represented in the proceeding by counsel of Lender's own choice, and
Grantor will deliver, or cause to be delivered, to Lender such instruments as Lender may request from time to time to permit such
participation,
Compliance With Laws. Grantor warrants that the Property :md Grantor's use of the Property complies with all existing applicable laws,
ordinances, and regulations of governmental authorities.
Survival of Representations and Warranties. All representåtions, warranties, and agreements made by Grantor in this Mortgage shall
survive the execution and delivery of this Mortgage, shall be continuing in nature, and shall remain in full force and effect until such time as
Grantor's Indebtedness shall be paid in full.
CONDEMNATION. The following provisions relating to condemnatÎon proceedings are a part of this Mortgage:
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Loan No: 13854
MORTGAGE
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Page 3
C00102
Proceedings. If any proceedinb, in condemnation is filed, Grantor shall promptly notify lender in writing, and Grantor shall promptly take
such steps as may be necessary to defend the action and obtain the f,ward. Grantor may be the nominal party in such proceeding, but
lender shall be entitled to participate hi the proceeding and to be represented in the proceeding by counsel of its own choice, and Grantor
will deliver or cause to be deliyered to lender such instruments and documentation as may be requested by lender from time to time to
permit such participation.
Application of Net Proceeds. If all or any part of the Property is condemned by eminent domain proceedings or by any proceeding or
purchase in lieu of condemnation, lender may at its election require that all or any portion of the net proceeds of the award be applied to
the Indebtedness or the repair or restoration of the Property. The net proceeds of the award shall mean the award after payment of all
reasonable costs, expenses, and attorneys' fees incurred by lençler in connection with the condemnation.
IMPOSITION OF TAXES, FEES AND CHARGES BY G¿VERNMENTAl AUTHORITIES. The following provisions relating to governmental taxes,
fees and charges are a part of this Mortgage:
Current Taxes, Fees and Charges. Upon request by lend,er, Grantor shall execute such documents ¡naddition to this Mortgage and take
whatever other action is requested by lender to perfect an'd continue lender's lien on the Real Property. Grantor shall reimburse lender for
all taxes, as described below, together with all expenses ,incurred in recording, perfecting or continuing this Mortgage, including without
limitation all taxes, fees, documentary stamps, and other charges for recording or registering this Mortgage.
Taxes. The following shall constitute taxes to which this section applies: (1) a specific tax upon this type of Mortgage or upon all or any
part of the Indebtedness secured by this Mortgage; (2) a specific tax on Grantor which Grantor is authorized or required to deduct from
payments on the Indebtedness secured by this type of Mortgage; (3) a tax on this type of Mortgage chargeable against the lender or the
holder of the Note; and (4) a specific tax on all or any portion of the Indebtedness or on payments of principal and interest made by
Grantor.,
Subsequent Taxes. If any taxito which this section applies is ene-::ted subsequent to the date of this Mortgage, this event shall have the
same effect as Default, and lender may exercise any or all of its available remedies for Default as provided below unless Grantor either (1)
pays the tax before it becomes delinquent, or (2), cont~sts the tax as provided above in the Taxes and Liens section and deposits with
lender cash or a sufficient corporate surety bond or other security satisfactory to lender.
SECURITY AGREEMENT; FINANC!r~G STATEMENTS. The following provisions relating to this Mortgage as a security agreement are a part of
this Mortgage:
Security Agreement. This instrument shall constitute a Security Agreement to the extent any of the Property constitutes fixtures, and
lender shall have all of the rights of a secured party under the Uniform Commercia! Code as amended from time to time.
Security Interest. Upon request by lender, Grantor shall take whate~er action is requested by lender to perfect and continue lender's
security interest in the Rents' and Personal Property. In addition to recording this Mortgage in the real property records, lender may, at any
time and without further authorization from Grantor, file executed counterparts, copies or reproductions of this Mortgage as a financing
statement. Grantor shall reimburse lender for all expenses incurred ili perfecting or continuing this security interest. Upon default, Grantor
shall not remove, sever or detach the Personal Property from the Property. Upon default, Grantor shall assemble any Personal Property not
affixed to the Property in a manner and at a place reasonably convenien: to Grantor and lender and make it available to lender within three
(3) days aher receipt of written demand from lender to the extent permitted by applicable law.
Addresses. The mailing addresses of Grantor (debtor) and lender (secured party) from which information concerning the security interest
granted by this Mortgage may be obtained (each as required by th:3 Uniform Comm8'rcial Code) are as stated on the first page of this
Mortgage, .
FURTHER ASSURANCES; ATTORNEY-IN-FACT. The following provisions reiating to further assurances and attorney-in-fact are a part of this
Mortgage:
Further Assurances. At any time, and from time to time, upon request of lender, Grantor will make, execute and deliver, or will cause to
be made, executed or delivered, to lender or to tender's designee, and when requested by lender, cause to be filed, recorded, refiled, or
rerecorded, as the case may be, at such times and in such offices and places as lender may deem appropriate, any and all such mortgages,
deeds of trust, security deeds, security agreements, financing statements, continuation statements, instruments of further assurance,
certificates, and other documents as may, in the sole opinion of lender. be necessary or desirable in order to effectuate, complete, perfect,
continue, or preserve (1) Grantor's obligations under the Note, this Mortgage, and the Related Documents, and (2) the liens and
security interests created by this Mortgage as first and prior liens on the Property, whether now owned or hereaher acquired by Grantor.
Unless prohibited by law or lender agrees to the contrary in writing, Grantor shall reimburse lender for all costs and expenses incurred in
connection with the matters referred to in this paragraph.
Attorney-in-Fact. If Grantor fails to do any of the things referred to in the preceding paragraph, lender may do so for and in the name of
Grantor and at Grantor's expense. For such purposes, Grantor hereby irrevocably appoints lender as Grantor's attorney-in-fact for the
purpose of making, executing, delivering, filing, recording, and doing all other things as may be necessary or desirable, in lender's sole
opinion, to accomplish the matters referred to in the preceding paragraph.
FULL PERFORMANCE. If Grantor nays all the Indebtedhess when due, and otherwise performs all the obligations imposed upon Grantor under
this Mortgage, lender shall execute and deliver to Grantor a suitable satisfaction of this Mortgage and suitable statements of termination of any
financing statement on file evid~ncing lender's security interest in the Rents and the Personal Property. Grantor will pay, if permitted by
applicable law, any reasonable termination fee as determined by lender from time to time.
DEFAULT. Default will occur if payment in full is not made immediately whM'due.
RIGHTS AND REMEDIES ON DEFAULT. Upon Default and at any time thereaher, lender, at lender's option, may exercise anyone or more of
the following rights and remedies; in àddition to any other rights or remedies p¡;ovided by law:
Accelerate Indebtedness. l~nder shall have the right at its option without potice to Grantor'to declare the entire Indebtedness immediately
due and payable, including any prepayment penalty which Grantor would be required to pay.
UCC Remedies. With resPElct to all or any part of the Personal ProPElrty, lender shall have all the rights and remedies of a secured party
under the Uniform Commerci,al, Code. iL
Collect Rents. Lender shall have the right, without notice to Grantqr, to take possession of the Property, including during the pendency of
foreclosure, whether judicial or non-judicial, and collect the Rents, i",eluding amounts past due and unpaid, and apply the net proceeds, over
and above lender's costs, against the Indebtedness. In furtherance of this right, lender may require any tenant or other user of the
Property to make payments of retit or use fees directly to lender. If the Rents are collected by lender, then Grantor irrevocably designates
Lender as Grantor's attorney"in-fact to endorse instruments received in payment thereof in the name of Grantor and to negotiate the same
and collect the proceeds, Páyments by tenants or other users to lender in response to lender's demand shall satisfy the obligations for
which the payments are made, whether or not any proper grounds for the demand existed. Lender, may exercise its rights under this
subparagraph either in persòn, by agent, or through a receiver.
Appoint Receiver. lender shall have the right to have a receiver appoInted to take possession of all or any part of the Property, with the
power to protect and preserve 'the Property, to operate the Property preceding foreclosure or sale, and to collect the Rents from the
Property and apply the proceeds, over and above the cost of the receivership, against the Indebtedness, The receiver may serve without
bond if permitted by law. lender's right to the appointment of a recøiver shall exist whether or not the apparent value of the Property
exceeds the Indebtedness by a substantial amount. Employment by le'!1der shall not disqualify a person from serving as a receiver.
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Judicial Foreclosure. lender may obtain a judicial decree foreclosing Grantor's interest in all or any part of the Property.
Nonjudicial Sale. lender may foreclose Grantor's interest in all or in any part of the Property by non-judicial sale, and specifically by "power
of sale" or "advertisement and sale" foreclosure as provided by statute.,
Deficiency Judgment. If permitted by applicable law, lender may obtain a judgment for any deficiency remaining in the Indebtedness due
to lender after application of all amounts received from the exercise of the rights provided in this section.
Tenancy at Sufferance. If Grantor remains in possession of the Property aher the Property is sold as provided above or lender otherwise
becomes entitled to possession of the Property upon default of Grantor, Grantor shall become a tenant at sufferance of lender or the
purchaser of the Property and shall, at lender's option, either (1) pay'a reasonable rental for the use of the Property or (2) vacate the
Property immediately :U1J0r;¡, t~eJ:iEtlJ.1anp. of lender. '
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Loan No: 13854
MORTGAGE
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Page 4
C00103
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Other Remedies. Le éJer s all have all other rights and remedies provided in this Mortgage or the Note or available at law or in equity.
Sale of the Property. To the extent permitted by applicable law, Grantùr hereby waives any and all right to have the Property marshalled.
In exercising its rights and remedies, Lender shall be free to sell all or any part of the Property together or separately, in one sale or by
separate sales. Lender shall be entitled to bid at any public sale on al! or 'any portion of the Property.
Notice of Sale. Lender shall give Grantor reason¡¡ble notice of the time and place of any public sale of the Personal Property or of the time
after which any private sale or other intended disposition of the Personal Property is to be made. Reasonable notice shall mean notice
given at least ten (10) days before the time of the sale or disposition. Any sale of the Personal Property may be made in conjunction with
any sale of the Real Property.
Election of Remedies. Election by Lender to pursue any remedy shall not exclude pursuit of any other remedy, and an election to make
expenditures or to take action to perform an obligation 0f Grantor under this Mortgage, after Grantor's failure to perform, shall not. af.fect
Lender's right to declare a default and exercise its remedies. Nothing under this Mortgage or otherwise shall be construed so as to limit or
restrict the rights and remedies available to Lender following Default, or in any way to limit or restrict the rights and ability of Lender to
proceed directly against Grantor and/or against any other co-maker, guarantor, surety or endorser and/or to proceed against any other
collateral directly or indirec~ly securing the Indebtedness.
Attorneys' Fees; Expenses. If Lender institutes any suit or action to enforce any of the terms of this Mortgage, Lender shall be entitled to
recover such sum as the court may adjudge reasonable as Lender's attorneys' fees at trial and upon any appeal. Whether or not any court
action is involved, and to the extent not prohibited by law, all reasonable expenses Lender incurs that in Lender's opinion are necessary at
any time for the protection of its interest or the enforcement of its rights shall become a part of the Indebtedness payable on demand and
shall bear interest at the Note rate from the date of the expenditure until repaid. Expenses covered by this paragraph include, without
limitation, however subject to any limits under applicable law, Lender's Lender's reasonable attorneys' fees and Lender's legal expenses,
whether or not there is a lawsuit, including Lender's reasonable attorneys' fees and expenses for bankruptcy proceedings (including efforts
to modify or vacate any automatic stay or injunction), appeals, and ¡¡ny anticipated post-judgment collection services, the cost of searching
records, obtaining title reports [Including foreclosure reports), su"/eyors' reports, and appraisal fees and title insurance, to the extent
permitted by applicable law, Grantor also will pay any court uo~ts, in addition to all other sums provided by law. In the event of
foreclosure of this Mortgage, Lender shall be entitled to recover from Grantor Lender's ,reasonable attorneys' fees and actual disbursements
that Lender necessarily incurs, in pursuing such foreclosure.
NOTICES. Any notice required to::öègiven under this Mortgage, including without lim'itation any notice of default and any notice of sale shall be
given in writing, and shall be effective when actually delivered, when actually receive(j, by telefacsimile (unless otherwise required by law), when
deposited with a nationally recognized overnight courier, or, if mailed, when deposited in the United States mail, as first class, certified or
registered mail postage prepaid, directed to the addresses shown near the beginning of this Mortgage, All copies of notices of foreclosure from
the holder of any lien which has priority over this Mortgage shall be sent 10 Lender's address, as shown near the beginning of this Mortgage.
Any party may change its address for notices under this Mortgage by ¡jiving formal written notice to the other parties, specifying that the
purpose of the notice is to change the party's address. For notice purposes, Grantor agrees to keep Lender informed at all times of Grantor's
current address. Unless otherwise provided or required by law, if there is r,lore than one Grantor, any notice given by Lender to any Grantor is
deemed to be notice given to all Grantors.
MISCELLANEOUS PROVISIONS. The following miscellaneous provisions arB a part of this Mortgage:
Amendments. This Mortgage, together with any Related Documents, constitutes the entire understanding and agreement of the parties as
to the matters set forth in this Mortgage. No alteration of or amendment to this Mortgage shall be effective unless given in writing and
signed by the party or parties sought to be charged or bound by the alteration or amendment.
Annual Reports. If the Property is used for purposes other than Grantor's residence, Grantor shall furnish to Lender, upon request, a
certified statement of net operating income received from the Property during Grantor's previous fiscal year in such form and detail as
Lender shall require. "Net operating income" shall mean all cash receipts from the Property less all cash expenditures made in connection
with the operation of the Property.
Caption Headings. Caption headings in this Mortgage are for convenience purposes only and are not to be used to interpret or define the
provisions of this Mortgage.
Governing Law. With respect to procedural matters related to the perfection and enforcement of Lender's rights against the Property, this
Mortgage will be governed by federal law applicable to Lender and to the extent not preempted by federal law, the laws of the State of
Wyoming. In all other respects, this Mortgage will be governed by fe.leral law applicable to Lender and, to the extent not preempted by
federal law, the laws of theStatl3 of Texas without regard to its conflicts of law provisions. However, if there ever is a question about
whether any provision of this Mortgage is valid or enforceable, the provision that is questioned will be governed by whichever state or
federal law would find the provision to be valid and enforceable. The loan transaction that is evidenced by the Note and this Mortgage has
been applied for, considered, approved and made, and all necessary loan documents have been accepted by' lender in the State of Texas.
Choice of Venue. If there is a lawsuit, and if the transaction evidenceé by this Mortgage occurred in Dallas County, Grantor agrees upon
Lender's request to submit to the jurisdiction of the courts of Dallas County, State of Texas,
No Waiver by Lender. Lender shall not be deemed to have waived any rights under this Mortgage unless such waiver is given În writing
and signed by Lender. No delay or omission on the part of Lender in exercising any right shall operate as a waiver of such right or any
other right. A waiver by Lender of a provision of this Mortgage shall not prejudice or constitute a waiver of Lender's right otherwise to
demand strict compliance with that provision or any other provision of this Mortgage. No prior waiver by Lender, nor any course of dealing
between Lender and Grantor, shall constitute a waiver of any of Lender's rights or of any of Grantor's obligations as to any future
transactions. Whenever the consent of Lender is required under this' Mortgage, the granting of such consent by Lender in any instance
shall not constitute continuing consent to subsequent instances wherE. such consent is required and in all cases such consent may be
granted or withheld in the sole discretion of Lender.
Severability. If a court of competent jurisdiction finds any provision of this Mortgage to be illegal, invalid, or unenforceable as to any
circumstance, that finding shall not make the offending provision illegal, invalid, Or unenforceable as to any other circumstance. If feasible,
the offending provision shall be considered modified so that it becomes legal, valid and enforceable. If the offending provision cannot be so
modified, it shall be considered deleted from this Mortgage. Unless otl]erwise required by law, the illegality, invalidity, or unenforceability
of any provision of this Mortgage shall not affect the legality, validity ur enforceability of any other provision of this Mortgage.
, .
Merger. There shall be no merger of the interest or estate createj by this Mortgage with any other interest or estate in the Property at any
time held by or for the benefit of Lender in any capacity, without th~ written consent of Lender.
Successors and Assigns. Subject to any limitations stated in this Mortgage on transfer of Grantor's interest, this Mortgage shall be binding
upon and inure to the beneflt·of the parties, their successors and assigns. If ownership of the Property becomes vested in a person other
than Grantor, Lender, without notice to Grantor, may deal with Grantor's successors with reference to this Mortgage and the Indebtedness
by way of forbearance or extension without releasing Grantor from the obligations of this Mortgage or liability under the Indebtedness.
Time is of the Essence. Time is of the essence in the performance of this Mortgage.
Waiver of Homestead Exel11ption. Grantor hereby releases and waives all rights and benefits of the homestead exemption laws of the State
of Wyoming as to all Indebtedness secured by this Mortgage,
DEFINITIONS. The following capitalized words and terms shall have the following meanings when used in this Mortgage. Unless specifically
stated to the contrary, all references to dollar amounts shall mean amounts, ;n lawful money of the United States of America. Words and terms
used in the singular shall include the plural, and the plural shall include the singular, as the context may require, Words and terms not otherwise
defined in this Mortgage shall have the meanings attributed to such terr.1S in the Uniform Commercial Code:
Borrower. The word "Borrower" means Heath Properties, L.P, and includes all co-signers and co-makers signing the Note.
Default. The word "Default" means the Default set forth in this Mortgage in the section titled "Default",
Envi~onmental Laws. ,The words "Environmental Laws" mean any and all state, federal and local statutes, regulations and ordinances
relating to ,the protec,tlo~. of human health or the environment, including without limitation the Comprehensive Environmental Response,
Compens.atl~n, and Liability Act of 1980, as amended, 42 U.S.C. Section 9601, et seq. ("CERCLA"), the Superfund Amendments and
Reauthorization Act of 1 ~86, Pub. L. No. 99-499 ("SARA"), the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, et seq.,
the Re~ource ConservatIOn and Recovery Act, 42 U,S.C. Section 6901, et seq., or other applicable state or federal laws, rules, or
regulations adopted pursuant thereto.
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Loan No: 13854
O·91242i1
MORTGAGE
(Continued)
COOI04
Page 5
Grantor. The word "Grantor" means Heath Properties, L.P..
Hazardous Substances. The words "Hazardous Substances" mean materials that, because of their quantity, concentration or physical,
chemical or infectious characteristics, may cause or pose a present or potential hazard to human health or the environment when
improperly used, treated, stored, disposed of, generated, manufactured, transported or otherwise handled. The words "Hazardous
Substances" are used in their very broadest sense and include without limitation any and all hazardous or toxic substances, materials or
waste as defined by or listed under the Environmental Laws, The term "Hazardous Substances" also includes, without limitation, petroleum
and petroleum by-products 0:' any fraction theréo.f and asbestos.
Improvements. The word "Improvements" means all existing and future improvements, buildings, structures, mobile homes affixed on the
Real Property, facilities, additions, replacements and other construction on the Real Property.
Indebtedness. The word "Indebtedness" means all principal, interest, and other amounts, costs and expenses payable under the Note or
Related Documents, together with all renewals of, extensions of, modifications of, consolidations of and substitutions for the Note or
Related Documents and any amounts expended or advanced by Lender to discharge Grantor's obligations or expenses incurred by Lender to
enforce Grantor's obligations under this Mortgage, together with interest on such amounts as provided in this Mortgage.
Lender. The word "Lender" means Tolleson Private Bank, its successors and assigns.
Mortgage. The word "Mortgage" means this Mortgage between Grantor and Lender,
Note. The word "Note" means the promissory note dated September 27, 2005, in the original principal amount of
$750,000.00 from Grantor to Lender, together withall renewals of, extensions of, modifications of, refinancings of, consolidations of,
and substitutions for the promissory note or agreement, Thor. .1laturity date of this Mortgage is September 27, 2006. NOTICE TO
GRANTOR: THE NOTE CONTAINS A VARIABLE INTEREST RATE.
Personal Property. The words "Personal Property" mean all equipment, fixtures, and other articles of personal property now or hereafter
owned by Grantor, and now or hereafter attached or affixed to the Real Property; together with all accessions, parts, and additions to, all
replacements of, and all substitutions for; any òf such property; and together with all proceeds (including without limitation all insurance
proceeds and refunds of premiums) from any sale or other disposition of the Property.
Property. The word "Property" means collectively the Real Property and the Personal Property.
Real Property. The words "Real Property" mean the real property, interests and rights, as further described in this Mortgage,
Related Documents. The words "Related Documents" mean all promissory notes, credit agreements, loan agreements, environmental
agreements, guaranties, security agreements, mortgages, deeds of trust, security deeds, collateral mortgages, and all other instruments,
agreements and documents, whether now or hereafter existing, executed in connection with the Indebtedness.
Rents. The word "Rents" means all present and future rents, revenues, income, issues, royalties, profits, and other benefits derived from
the Property.
GRANTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS MORTGAGE, AND GRANTOR AGREES TO ITS TERMS.
GRANTOR:
STATE OF 1eíaç¿!
tJaJJJt,ç¡
PARTNERSHIP ACKNOWLEDGMENT
COUNTY OF
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On this c9...*..). day of c;.n frtf¡ 1/\1 ~j) ',20 OS-, before me, the undersigned Notary Public, personally
appeared Richard W. Heath, President or~~e~~ and known to me to be a partner or designated agent of the partnership that
executed the Mortgage and acknowledged the Mortgage to be the free and voluntary act and deed of the partnership, by authority of statute or
its Partnershir¡ Agreement, for the uses and purposes therein mentioned, and on oath stated that he or she is authorized to execute this
:ortgage an fact x;cuted the Mor gob h f f the partnership. 6"5lJO <p(~ t2..&..
JULIA
Notary Publi:lIOT~flNrfM~1
CO..lnIO. EXPIREI:
.JANUARY 17, 2007
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l..ASER PRO L.ndlng, Ver. 6.26.00.005 Cop!". Harl.nd Fir1,ncjel Solution., Ino, 1991. 2005, All Right. R''''ved. ,wYrrx 1:\BANK\CF1ILPLIG03.FC TR-663 PR.34
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