2004033146
04/23/2004 01:35:22 PM Filed &
Recorded in
Official Records of
CAROLYN STFILEY PULASKI
COUNTY CIRCUIT/COUNTY
CLERK Fees $32.00
- -State of Arkansas-
-SPACE ABOVE THIS LINE FOR RECORDING DATA-
This instrument was prepared by (name,address): BANK OF THE OZARKS
LENDER TELEPHONE NO.
PERSON TO RELEASE LIEN (NAME AND TITLE)
REAL ESTATE MORTGAGE
(WITH FUTURE ADVANCE CLAUSE)
1. DATE AND PARTIES. The date of this Mortgage is APRIL 20, 2004 and the parties
and their addresses are as follows:
MORTGAGOR:
CAPITOL DEVELOPMENT OF ARKANSAS,INC.
Refer to the Addendum which is attached and incorporated herein for additional
Mortgagors.
LENDER:
BANK OF THE OZARKS (CHENAL)
P 0 BOX 8811 LITTLE ROCK
AR 72231-8811
2. MORTGAGE. FOR GOOD AND VALUABLE CONSIDERATION, THE RECEIPT AND SUFFICIENCY
OF WHICH IS ACKNOWLEDGED, AND TO SECURE THE SECURED DEBT (HEREAFTER
DEFINED), MORTGAGOR GRANTS, BARGAINS, CONVEYS AND MORTGAGES TO^LENDER THE
FOLLOWING DESCRIBED PROPERTY:
TRACT D-R AND TRACT D-1 , REPLAT OF TRACT D , MAUMELLE TOWN
CENTER ADDITION TO THE CITY OF MAUMELLE, PULASKI COUNTY,
ARKANSAS.
SEE "EXHIBIT A"
The property is located in PULASKI at TOWN CENTER ADDITION, MAUMELLE,
Arkansas
FORM 15 (ADDRESS) (CITY) (ZIP CODE)
ARKANSAS-AGRICULTURAL/COMMERCIAL REAL ESTATE SECURITY INSTRUMENT (NOT FOR FNMA.
FHLMC. FH,
(C)1993,2001 BANKERS SYSTEMS, INC., ST. CLOUD, MN FORM AGCO-RESI-AR 1/2/2003
TOGETHER WITH ALL RIGHTS, EASEMENTS, APPURTENANCES, ROYALTIES, MINERAL RIGHTS,
OIL AND GAS RIGHTS, CROPS, TIMBER, ALL DIVERSION PAYMENTS OR THIRD PARTY
PAYMENTS MADE TO CROP PRODUCERS WHICH ARE NOT DIRECTLY RELATED TO CROP
PRODUCTION PROCEEDS, AND ALL EXISTING AND FUTURE IMPROVEMENTS, STRUCTURES,
FIXTURES, AND REPLACEMENTS THAT MAY NOW, OR AT ANY TIME IN THE FUTURE, BE PART
OF THE REAL ESTATE DESCRIBED ABOVE (ALL REFERRED TO AS "PROPERTY"). THE TERM
PROPERTY ALSO INCLUDES, BUT IS NOT LIMITED TO, ANY AND ALL WATER WELLS, WATER,
DITCHES, RESERVOIRS, RESERVOIR SITES AND DAMS LOCATED ON THE REAL ESTATE AND ALL
RIPARIAN AND WATER RIGHTS ASSOCIATED WITH THE PROPERTY, HOWEVER ESTABLISHED.
3. MAXIMUM OBLIGATION LIMIT. THE TOTAL PRINCIPAL AMOUNT OF THE SECURED DEBT
(HEREAFTER DEFINED) SECURED BY THIS MORTGAGE AT ANY ONE TIME SHALL NOT
EXCEED $ ________2 , 050 ,000.00________ O THIS LIMITATION OF AMOUNT DOES
NOT INCLUDE INTEREST, LOAN CHARGES, COMMITMENT FEES, BROKERAGE COMMISSIONS,
ATTORNEYS' FEES AND OTHER CHARGES VALIDLY MADE PURSUANT TO THIS MORTGAGE
AND DOES NOT APPLY TO ADVANCES (OR INTEREST ACCRUED ON SUCH ADVANCES) MADE
UNDER THE TERMS OF THIS MORTGAGE TO PROTECT LENDER'S SECURITY AND TO
PERFORM ANY OF THE COVENANTS CONTAINED IN THIS MORTGAGE. FUTURE ADVANCES
ARE CONTEMPLATED AND, ALONG WITH OTHER FUTURE OBLIGATIONS, ARE SECURED BY
THIS MORTGAGE EVEN THOUGH ALL OR PART MAY NOT YET BE ADVANCED. NOTHING IN
THIS MORTGAGE, HOWEVER, SHALL CONSTITUTE A COMMITMENT TO MAKE ADDITIONAL OR
FUTURE LOANS OR ADVANCES IN ANY AMOUNT. ANY SUCH COMMITMENT WOULD NEED TO
BE AGREED TO IN A SEPARATE WRITING.
4. SECURED DEBT DEFINED. THE TERM "SECURED DEBT" INCLUDES, BUT IS NOT LIMITED
TO, THE FOLLOWING:
A. THE PROMISSORY NOTE(S), CONTRACT(S), GUARANTY(IES) OR OTHER EVIDENCE
OF DEBT DESCRIBED BELOW AND ALL EXTENSIONS, RENEWALS, MODIFICATIONS OR
SUBSTITUTIONS (EVIDENCE OF DEBT) (E.G., BORROWER'S NAME, NOTE AMOUNT,
INTEREST RATE, MATURITY DATE):
BORROWER: CAPITOL DEVELOPMENT OF ARKANSAS, INC
NOTE AMOUNT: $2,050,000.00
MATURITY DATE: 04/15/2006
B. ALL FUTURE ADVANCES FROM LENDER TO MORTGAGOR OR OTHER FUTURE
OBLIGATIONS OF MORTGAGOR TO LENDER UNDER ANY PROMISSORY NOTE,
CONTRACT, GUARANTY, OR OTHER EVIDENCE OF DEBT EXISTING NOW OR EXECUTED
AFTER THIS MORTGAGE WHETHER OR NOT THIS MORTGAGE IS SPECIFICALLY
REFERRED TO IN THE EVIDENCE OF DEBT, AND WHETHER OR NOT SUCH FUTURE
ADVANCES OR FUTURE OBLIGATIONS ARE INCURRED FOR ANY PURPOSE THAT WAS
RELATED OR UNRELATED TO THE PURPOSE OF THE EVIDENCE OF DEBT.
C. ALL OBLIGATIONS MORTGAGOR OWES TO LENDER, WHICH NOW EXIST OR MAY LATER
ARISE, TO THE EXTENT NOT PROHIBITED BY LAW, INCLUDING, BUT NOT LIMITED
TO, LIABILITIES FOR OVERDRAFTS RELATING TO ANY DEPOSIT ACCOUNT
AGREEMENT BETWEEN MORTGAGOR AND LENDER.
D. ALL ADDITIONAL SUMS ADVANCED AND EXPENSES INCURRED BY LENDER FOR
INSURING, PRESERVING OR OTHERWISE PROTECTING THE PROPERTY AND ITS
VALUE AND ANY OTHER SUMS ADVANCED AND EXPENSES INCURRED BY LENDER
UNDER THE TERMS OF THIS MORTGAGE, PLUS INTEREST AT THE SAME RATE
PROVIDED IN THE EVIDENCE OF DEBT.
E. MORTGAGOR'S PERFORMANCE UNDER THE TERMS OF ANY INSTRUMENT EVIDENCING A
DEBT BY MORTGAGOR TO LENDER AND ANY MORTGAGE SECURING, GUARANTYING, OR
OTHERWISE RELATING TO THE DEBT.
IF MORE THAN ONE PERSON SIGNS THIS MORTGAGE AS MORTGAGOR, EACH MORTGAGOR
AGREES THAT THIS MORTGAGE WILL SECURE ALL FUTURE ADVANCES AND FUTURE
OBLIGATIONS DESCRIBED ABOVE THAT ARE GIVEN TO OR INCURRED BY ANY ONE OR
MORE MORTGAGOR, OR ANY ONE OR MORE MORTGAGOR AND OTHERS. THIS MORTGAGE WILL
NOT SECURE ANY OTHER DEBT IF LENDER FAILS, WITH RESPECT TO SUCH OTHER DEBT,
TO MAKE ANY REQUIRED DISCLOSURE ABOUT THIS MORTGAGE OR IF LENDER FAILS TO
GIVE ANY REQUIRED NOTICE OF THE RIGHT OF RESCISSION.
5. PAYMENTS. MORTGAGOR AGREES TO MAKE ALL PAYMENTS ON THE SECURED DEBT WHEN
DUE AND IN ACCORDANCE WITH THE TERMS OF THE EVIDENCE OF DEBT OR THIS
MORTGAGE.
B. WARRANTY OF TITLE. MORTGAGOR COVENANTS THAT MORTGAGOR IS LAWFULLY
SEIZED OF THE ESTATE CONVEYED BY THIS MORTGAGE AND HAS THE RIGHT TO
GRANT, BARGAIN, CONVEY, SELL, AND MORTGAGE THE PROPERTY AND WARRANTS
THAT THE PROPERTY IS UNENCUMBERED, EXCEPT FOR ENCUMBRANCES OF RECORD.
7. CLAIMS AGAINST TITLE. MORTGAGOR WILL PAY ALL TAXES, ASSESSMENTS, LIENS,
ENCUMBRANCES, LEASE PAYMENTS, GROUND RENTS, UTILITIES AND OTHER CHARGES
RELATING TO THE PROPERTY WHEN DUE. LENDER MAY REQUIRE MORTGAGOR TO PROVIDE
TO LENDER COPIES OF ALL NOTICES THAT SUCH AMOUNTS ARE DUE AND THE RECEIPTS
EVIDENCING MORTGAGOR'S PAYMENT. MORTGAGOR WILL DEFEND TITLE TO THE PROPERTY
AGAINST ANY CLAIMS THAT WOULD IMPAIR THE LIEN OF THIS MORTGAGE. MORTGAGOR
AGREES TO ASSIGN TO LENDER, AS REQUESTED BY LENDER, ANY RIGHTS, CLAIMS OR
DEFENSES WHICH MORTGAGOR MAY HAVE AGAINST PARTIES WHO SUPPLY LABOR OR
MATERIALS TO IMPROVE OR MAINTAIN THE PROPERTY.
8. PRIOR SECURITY INTERESTS. WITH REGARD TO ANY OTHER MORTGAGE, DEED OF TRUST
OR SECURITY AGREEMENT THAT CREATED A PRIOR SECURITY INTEREST OR ENCUMBRANCE
ON THE PROPERTY AND THAT MAY HAVE PRIORITY OVER THIS MORTGAGE, MORTGAGOR
AGREES:
A. TO MAKE ALL PAYMENTS WHEN DUE AND TO PERFORM OR COMPLY WITH ALL
COVENANTS.
B. TO PROMPTLY DELIVER TO LENDER ANY NOTICES THAT MORTGAGOR RECEIVES FROM
THE HOLDER. C. NOT TO MAKE OR PERMIT ANY MODIFICATION OR EXTENSION OF,
AND NOT TO REQUEST OR ACCEPT ANY FUTURE ADVANCES UNDER ANY NOTE OR
AGREEMENT SECURED BY, THE OTHER MORTGAGE, DEED OF TRUST OR SECURITY
AGREEMENT UNLESS LENDER CONSENTS IN WRITING.
9. DUE ON SALE OR ENCUMBRANCE. LENDER MAY, AT ITS OPTION, DECLARE THE ENTIRE
BALANCE OF THE SECURED DEBT TO BE IMMEDIATELY DUE AND PAYABLE UPON THE
CREATION OF ANY LIEN, ENCUMBRANCE, TRANSFER, OR SALE, OR CONTRACT FOR ANY
OF THESE ON THE PROPERTY. HOWEVER, IF THE PROPERTY INCLUDES MORTGAGOR'S
RESIDENCE, THIS SECTION SHALL BE SUBJECT TO THE RESTRICTIONS IMPOSED BY
FEDERAL LAW (12 C.F.R. 591 ET SEQ.), AS APPLICABLE. FOR THE PURPOSES OF
THIS PARAGRAPH, THE TERM "PROPERTY" ALSO INCLUDES ANY INTEREST TO ALL OR
ANY PART OF THE PROPERTY. THIS COVENANT SHALL RUN^WITH THE PROPERTY AND
SHALL REMAIN IN EFFECT UNTIL THE SECURED DEBT IS PAID IN FULL AND THIS
MORTGAGE IS RELEASED.
FORM 215,
S1993, 2001 BANKERS SYSTEMS.
10. TRANSFER OF AN INTEREST IN THE MORTGAGOR. IF MORTGAGOR IS AN ENTITY OTHER
THAN A NATURAL PERSON (SUCH AS A CORPORATION OR OTHER ORGANIZATION). LENDER
MAY DEMAND IMMEDIATE PAYMENT IF (1) A BENEFICIAL INTEREST IN MORTGAGOR IS
SOLD OR TRANSFERRED; (2) THERE IS A CHANGE IN EITHER THE IDENTITY OR NUMBER
OF MEMBERS OF A PARTNERSHIP; OR (3) THERE IS A CHANGE IN OWNERSHIP OF MORE
THAN 25 PERCENT OF THE VOTING STOCK OF A CORPORATION. HOWEVER, LENDER MAY
NOT DEMAND PAYMENT IN THE ABOVE SITUATIONS IF IT IS PROHIBITED BY LAW AS OF
THE DATE OF THIS MORTGAGE.
11. ENTITY WARRANTIES AND REPRESENTATIONS. IF MORTGAGOR IS AN ENTITY OTHER THAN
A NATURAL PERSON (SUCH AS A CORPORATION OR OTHER ORGANIZATION). MORTGAGOR
MAKES TO LENDER THE FOLLOWING WARRANTIES AND REPRESENTATIONS WHICH SHALL BE
CONTINUING AS LONG AS THE SECURED DEBT REMAINS OUTSTANDING:
A. MORTGAGOR IS AN ENTITY WHICH IS DULY ORGANIZED AND VALIDLY EXISTING IN
THE MORTGAGOR'S STATE OF INCORPORATION (OR ORGANIZATION). MORTGAGOR IS
IN GOOD STANDING IN ALL STATES IN WHICH MORTGAGOR TRANSACTS BUSINESS.
MORTGAGOR HAS THE POWER AND AUTHORITY TO OWN THE PROPERTY AND TO CARRY
ON ITS BUSINESS AS NOW BEING CONDUCTED AND, AS APPLICABLE, IS
QUALIFIED TO DO SO IN EACH STATE IN WHICH MORTGAGOR OPERATES.
B. THE EXECUTION, DELIVERY AND PERFORMANCE OF THIS MORTGAGE BY MORTGAGOR
AND THE OBLIGATION EVIDENCED BY THE EVIDENCE OF DEBT ARE WITHIN THE
POWER OF MORTGAGOR, HAVE BEEN DULY AUTHORIZED, HAVE RECEIVED ALL
NECESSARY GOVERNMENTAL APPROVAL, AND WILL NOT VIOLATE ANY PROVISION OF
LAW, OR ORDER OF COURT OR GOVERNMENTAL AGENCY. C. OTHER THAN DISCLOSED
IN WRITING MORTGAGOR HAS NOT CHANGED ITS NAME WITHIN THE LAST TEN
YEARS AND HAS NOT USED ANY OTHER TRADE OR FICTITIOUS NAME. WITHOUT
LENDER'S PRIOR WRITTEN CONSENT. MORTGAGOR DOES NOT AND WILL NOT USE
ANY OTHER NAME AND WILL PRESERVE ITS EXISTING NAME, TRADE NAMES AND
FRANCHISES UNTIL THE EVIDENCE OF DEBT IS SATISFIED.
12. PROPERTY CONDITION, ALTERATIONS AND INSPECTION. MORTGAGOR WILL KEEP THE
PROPERTY IN GOOD CONDITION AND MAKE ALL REPAIRS THAT ARE REASONABLY
NECESSARY. MORTGAGOR WILL GIVE LENDER PROMPT NOTICE OF ANY LOSS OR DAMAGE
TO THE PROPERTY. MORTGAGOR WILL KEEP THE PROPERTY FREE OF NOXIOUS WEEDS AND
GRASSES. MORTGAGOR WILL NOT INITIATE, JOIN IN OR CONSENT TO ANY CHANGE IN
ANY PRIVATE RESTRICTIVE COVENANT, ZONING ORDINANCE OR OTHER PUBLIC OR
PRIVATE RESTRICTION LIMITING OR DEFINING THE USES WHICH MAY BE MADE OF THE
PROPERTY OR ANY PART OF THE PROPERTY, WITHOUT LENDER'S PRIOR WRITTEN
CONSENT. MORTGAGOR WILL COMPLY WITH ALL LEGAL REQUIREMENTS AND
RESTRICTIONS, WHETHER PUBLIC OR PRIVATE, WITH RESPECT TO THE USE OF THE
PROPERTY. MORTGAGOR ALSO AGREES THAT THE NATURE OF THE OCCUPANCY AND USE
WILL NOT CHANGE WITHOUT LENDER'S PRIOR WRITTEN CONSENT. MORTGAGOR WILL
NOTIFY LENDER OF ALL DEMANDS, PROCEEDINGS, CLAIMS AND ACTIONS AGAINST
MORTGAGOR OR ANY OTHER OWNER MADE UNDER ANY LAW OR REGULATION REGARDING
USE, OWNERSHIP AND OCCUPANCY OF THE PROPERTY. NO PORTION OF THE PROPERTY
WILL BE REMOVED, DEMOLISHED OR MATERIALLY ALTERED WITHOUT LENDER'S PRIOR
WRITTEN CONSENT EXCEPT THAT MORTGAGOR HAS THE RIGHT TO REMOVE ITEMS OF
PERSONAL PROPERTY COMPRISING A PART OF THE PROPERTY THAT BECOME WORN OR
OBSOLETE, PROVIDED THAT SUCH PERSONAL PROPERTY IS REPLACED WITH OTHER
PERSONAL PROPERTY AT LEAST EQUAL IN VALUE TO THE REPLACED PERSONAL
PROPERTY, FREE FROM ANY TITLE RETENTION DEVICE, SECURITY AGREEMENT OR OTHER
ENCUMBRANCE. SUCH REPLACEMENT OF PERSONAL PROPERTY WILL BE DEEMED SUBJECT
TO THE SECURITY INTEREST CREATED BY THIS MORTGAGE. MORTGAGOR SHALL NOT
PARTITION OR SUBDIVIDE THE PROPERTY WITHOUT LENDER'S PRIOR WRITTEN CONSENT.
LENDER OR LENDER'S AGENTS MAY, AT LENDER'S OPTION, ENTER THE PROPERTY AT
ANY REASONABLE TIME FOR THE PURPOSE OF INSPECTING THE PROPERTY. ANY
INSPECTION OF THE PROPERTY SHALL BE ENTIRELY FOR LENDER'S BENEFIT AND
MORTGAGOR WILL IN NO WAY RELY ON LENDER'S INSPECTION.
13. AUTHORITY TO PERFORM. IF MORTGAGOR FAILS TO PERFORM ANY OF MORTGAGOR'S
DUTIES UNDER THIS MORTGAGE, OR ANY OTHER MORTGAGE, DEED OF TRUST, LIEN OR
OTHER SECURITY INTEREST THAT HAS PRIORITY OVER THIS MORTGAGE, LENDER MAY,
WITHOUT NOTICE, PERFORM THE DUTIES OR CAUSE THEM TO BE PERFORMED. MORTGAGOR
APPOINTS LENDER AS ATTORNEY IN FACT TO SIGN MORTGAGOR'S NAME OR PAY ANY
AMOUNT NECESSARY FOR PERFORMANCE. IF ANY CONSTRUCTION ON THE PROPERTY IS
DISCONTINUED OR NOT CARRIED ON IN A REASONABLE MANNER. LENDER MAY DO
WHATEVER IS NECESSARY TO PROTECT LENDER'S SECURITY INTEREST IN THE
PROPERTY. THIS MAY INCLUDE COMPLETING THE CONSTRUCTION. LENDER'S RIGHT TO
PERFORM FOR MORTGAGOR SHALL NOT CREATE AN OBLIGATION TO PERFORM, AND
LENDER'S FAILURE TO PERFORM WILL NOT PRECLUDE LENDER FROM EXERCISING ANY OF
LENDER'S OTHER RIGHTS UNDER THE LAW OR THIS MORTGAGE. ANY AMOUNTS PAID BY
LENDER FOR INSURING, PRESERVING OR OTHERWISE PROTECTING THE PROPERTY AND
LENDER'S SECURITY INTEREST WILL BE DUE ON DEMAND AND WILL BEAR INTEREST
FROM THE DATE OF THE PAYMENT UNTIL PAID IN FULL AT THE INTEREST RATE IN
EFFECT FROM TIME TO TIME ACCORDING TO THE TERMS OF THE EVIDENCE OF DEBT.
14. ASSIGNMENT OF LEASES AND RENTS. MORTGAGOR ASSIGNS, GRANTS, BARGAINS,
CONVEYS AND MORTGAGES TO LENDER AS ADDITIONAL SECURITY ALL THE RIGHT, TITLE
AND INTEREST IN THE FOLLOWING (PROPERTY).
A. EXISTING OR FUTURE LEASES, SUBLEASES, LICENSES, GUARANTIES AND ANY
OTHER WRITTEN OR VERBAL AGREEMENTS FOR THE USE AND OCCUPANCY OF THE
PROPERTY, INCLUDING BUT NOT LIMITED TO, ANY EXTENSIONS, RENEWALS,
MODIFICATIONS OR REPLACEMENTS (LEASES).
B. RENTS, ISSUES AND PROFITS, INCLUDING BUT NOT LIMITED TO, SECURITY
DEPOSITS, MINIMUM RENTS, PERCENTAGE RENTS, ADDITIONAL RENTS, COMMON
AREA MAINTENANCE CHARGES, PARKING CHARGES, REAL ESTATE TAXES, OTHER
APPLICABLE TAXES, INSURANCE PREMIUM CONTRIBUTIONS, LIQUIDATED DAMAGES
FOLLOWING DEFAULT, CANCELLATION PREMIUMS, "LOSS OF RENTS" INSURANCE,
GUEST RECEIPTS, REVENUES, ROYALTIES, PROCEEDS, BONUSES, ACCOUNTS,
CONTRACT RIGHTS, GENERAL INTANGIBLES, AND ALL RIGHTS AND CLAIMS WHICH
MORTGAGOR MAY HAVE THAT IN ANY WAY PERTAIN TO OR ARE ON ACCOUNT OF THE
USE OR OCCUPANCY OF THE WHOLE OR ANY PART OF THE PROPERTY (RENTS).
IN THE EVENT ANY ITEM LISTED AS LEASES OR RENTS IS DETERMINED TO BE
PERSONAL PROPERTY, THIS ASSIGNMENT WILL ALSO BE REGARDED AS A SECURITY
AGREEMENT.
MORTGAGOR WILL PROMPTLY PROVIDE LENDER WITH COPIES OF THE LEASES AND WILL
CERTIFY THESE LEASES ARE TRUE AND CORRECT COPIES. THE EXISTING LEASES WILL
BE PROVIDED ON EXECUTION OF THE ASSIGNMENT, AND ALL FUTURE LEASES AND ANY
OTHER INFORMATION WITH RESPECT TO THESE LEASES WILL BE PROVIDED IMMEDIATELY
AFTER THEY ARE EXECUTED. MORTGAGOR MAY COLLECT, RECEIVE, ENJOY AND USE THE
RENTS SO LONG AS MORTGAGOR IS NOT IN DEFAULT. MORTGAGOR WILL NOT COLLECT IN
ADVANCE ANY RENTS DUE IN FUTURE LEASE PERIODS, UNLESS MORTGAGOR FIRST
OBTAINS LENDER'S WRITTEN CONSENT. UPON DEFAULT, MORTGAGOR WILL RECEIVE
ANY RENTS IN TRUST FOR LENDER AND MORTGAGOR WILL NOT COMMINGLE THE RENTS
WITH ANY OTHER FUNDS. WHEN LENDER SO DIRECTS, MORTGAGOR WILL ENDORSE AND
DELIVER ANY PAYMENTS OF RENTS FROM THE PROPERTY TO LENDER. AMOUNTS
COLLECTED WILL BE APPLIED AT LENDER'S DISCRETION TO THE SECURED DEBTS, THE
COSTS OF MANAGING, PROTECTING AND PRESERVING THE PROPERTY, AND OTHER
NECESSARY EXPENSES. MORTGAGOR AGREES THAT THIS SECURITY INSTRUMENT IS
IMMEDIATELY EFFECTIVE BETWEEN MORTGAGOR AND LENDER AND EFFECTIVE AS TO
THIRD PARTIES ON THE RECORDING OF THIS ASSIGNMENT.
AS LONG AS THIS ASSIGNMENT IS IN EFFECT, MORTGAGOR WARRANTS AND REPRESENTS
THAT NO DEFAULT EXISTS UNDER THE LEASES, AND THE PARTIES SUBJECT TO THE
LEASES HAVE NOT VIOLATED ANY APPLICABLE LAW ON LEASES, LICENSES AND
LANDLORDS AND TENANTS. MORTGAGOR, AT ITS SOLE COST AND EXPENSE, WILL KEEP,
OBSERVE AND PERFORM, AND REQUIRE ALL OTHER PARTIES TO THE LEASES TO COMPLY
WITH THE LEASES AND ANY APPLICABLE LAW. IF MORTGAGOR OR ANY PARTY TO THE
LEASE DEFAULTS OR FAILS TO OBSERVE ANY "* APPLICABLE LAW, MORTGAGOR WILL
PROMPTLY NOTIFY LENDER. IF MORTGAGOR NEGLECTS OR REFUSES TO ENFORCE
COMPLIANCE WITH THE TERMS OF THE LEASES, THEN LENDER MAY, AT LENDER'S
OPTION, ENFORCE COMPLIANCE. MORTGAGOR WILL NOT SUBLET, MODIFY, EXTEND,
CANCEL, OR OTHERWISE ALTER THE LEASES, OR ACCEPT THE SURRENDER OF THE
PROPERTY COVERED BY THE LEASES (UNLESS THE LEASES SO REQUIRE) WITHOUT
LENDER'S CONSENT. MORTGAGOR WILL NOT ASSIGN, COMPROMISE, SUBORDINATE OR
ENCUMBER THE LEASES AND RENTS WITHOUT LENDER'S PRIOR WRITTEN CONSENT.
LENDER DOES NOT ASSUME OR BECOME LIABLE FOR THE PROPERTY'S MAINTENANCE,
DEPRECIATION, OR OTHER LOSSES OR DAMAGES WHEN LENDER ACTS TO MANAGE,
PROTECT OR PRESERVE THE PROPERTY, EXCEPT FOR LOSSES AND DAMAGES DUE TO
LENDER'S GROSS NEGLIGENCE OR INTENTIONAL TORTS. OTHERWISE, MORTGAGOR WILL
INDEMNIFY LENDER AND HOLD LENDER HARMLESS FOR ALL LIABILITY, LOSS OR DAMAGE
THAT LENDER MAY INCUR WHEN LENDER OPTS TO EXERCISE ANY OF ITS REMEDIES
AGAINST ANY PARTY OBLIGATED UNDER THE LEASES.
15. CONDOMINIUMS; PLANNED UNIT DEVELOPMENTS. IF THE PROPERTY INCLUDES A UNIT IN
A CONDOMINIUM OR A PLANNED UNIT DEVELOPMENT, MORTGAGOR WILL PERFORM ALL OF
MORTGAGOR'S DUTIES UNDER THE COVENANTS, BY-LAWS, OR REGULATIONS OF THE
CONDOMINIUM OR PLANNED UNIT DEVELOPMENT.
16. DEFAULT. MORTGAGOR WILL BE IN DEFAULT IF ANY OF THE FOLLOWING OCCUR:
A. ANY PARTY OBLIGATED ON THE SECURED DEBT FAILS TO MAKE PAYMENT WHEN
DUE;
B. A BREACH OF ANY TERM OR COVENANT IN THIS MORTGAGE, ANY PRIOR MORTGAGE
OR ANY CONSTRUCTION LOAN AGREEMENT, SECURITY AGREEMENT OR ANY OTHER
DOCUMENT EVIDENCING, GUARANTYING, SECURING OR OTHERWISE RELATING TO
THE SECURED DEBT;
C. THE MAKING OR FURNISHING OF ANY VERBAL OR WRITTEN REPRESENTATION,
STATEMENT OR WARRANTY TO LENDER THAT IS FALSE OR INCORRECT IN ANY
MATERIAL RESPECT BY MORTGAGOR OR ANY PERSON OR ENTITY OBLIGATED ON THE
SECURED DEBT;
D. THE DEATH, DISSOLUTION, APPOINTMENT OF A RECEIVER, INSOLVENCY, OR
APPLICATION OF ANY DEBTOR RELIEF LAW TO OR OF MORTGAGOR OR ANY PERSON
OR ENTITY OBLIGATED ON THE SECURED DEBT;
E. A GOOD FAITH BELIEF BY LENDER AT ANY TIME THAT LENDER IS INSECURE WITH
RESPECT TO ANY PERSON OR ENTITY OBLIGATED ON THE SECURED DEBT OR THAT
THE PROSPECT OF ANY PAYMENT IS IMPAIRED OR THE PROPERTY IS IMPAIRED;
F. A MATERIAL ADVERSE CHANGE IN MORTGAGOR'S BUSINESS INCLUDING OWNERSHIP,
MANAGEMENT, AND FINANCIAL CONDITIONS, WHICH LENDER IN ITS OPINION
BELIEVES IMPAIRS THE VALUE OF THE PROPERTY OR REPAYMENT OF THE SECURED
DEBT; OR
G. ANY LOAN PROCEEDS ARE USED FOR A PURPOSE THAT WILL CONTRIBUTE TO
EXCESSIVE EROSION OF HIGHLY ERODIBLE LAND OR TO THE CONVERSION OF
WETLANDS TO PRODUCE AN AGRICULTURAL COMMODITY, AS FURTHER EXPLAINED IN
7 C.F.R. PART 1940, SUBPART G, EXHIBIT M.
17. REMEDIES ON DEFAULT. IN SOME INSTANCES, FEDERAL AND STATE LAW WILL REQUIRE
LENDER TO PROVIDE MORTGAGOR WITH NOTICE OF THE RIGHT TO CURE, MEDIATION
NOTICES OR OTHER NOTICES AND MAY ESTABLISH TIME SCHEDULES FOR FORECLOSURE
ACTIONS. SUBJECT TO THESE LIMITATIONS, IF ANY. LENDER MAY ACCELERATE THE
SECURED DEBT AND FORECLOSE THIS MORTGAGE IN A MANNER PROVIDED BY LAW IF
THIS MORTGAGOR IS IN DEFAULT.
AT THE OPTION OF LENDER, ALL OR ANY PART OF THE AGREED FEES AND
CHARGES, ACCRUED INTEREST AND PRINCIPAL SHALL BECOME IMMEDIATELY DUE
AND PAYABLE, AFTER GIVING NOTICE IF REQUIRED BY LAW, UPON THE
OCCURRENCE OF A DEFAULT OR ANYTIME THEREAFTER. IN ADDITION. LENDER
SHALL BE ENTITLED TO ALL THE REMEDIES PROVIDED BY LAW, THE SECURED
DEBT, THIS MORTGAGE AND ANY RELATED DOCUMENTS INCLUDING WITHOUT
LIMITATION, THE POWER TO SELL THE PROPERTY. ALL REMEDIES ARE DISTINCT,
CUMULATIVE AND NOT EXCLUSIVE, AND THE LENDER IS ENTITLED TO ALL
REMEDIES PROVIDED AT LAW OR EQUITY, WHETHER EXPRESSLY SET FORTH OR
NOT.
THE ACCEPTANCE BY LENDER OF ANY SUM IN PAYMENT OR PARTIAL PAYMENT ON
THE SECURED DEBT AFTER THE BALANCE IS DUE OR IS ACCELERATED OR AFTER
FORECLOSURE PROCEEDINGS ARE FILED SHALL NOT CONSTITUTE A WAIVER OF
LENDER'S RIGHT TO REQUIRE FULL AND COMPLETE CURE OF ANY EXISTING
DEFAULT. BY NOT EXERCISING ANY REMEDY ON MORTGAGOR'S DEFAULT. LENDER
DOES NOT WAIVE LENDER'S RIGHT TO LATER CONSIDER THE EVENT A DEFAULT IF
IT CONTINUES OR HAPPENS AGAIN.
18. EXPENSES; ADVANCES ON COVENANTS; ATTORNEYS' FEES; COLLECTION COSTS. EXCEPT
WHEN PROHIBITED BY LAW, MORTGAGOR AGREES TO PAY ALL OF LENDER'S EXPENSES IF
MORTGAGOR BREACHES ANY COVENANT IN THIS MORTGAGE. MORTGAGOR WILL ALSO PAY
ON DEMAND ALL OF LENDER'S EXPENSES INCURRED IN COLLECTING, INSURING,
PRESERVING OR PROTECTING THE PROPERTY OR IN ANY INVENTORIES, AUDITS,
INSPECTIONS OR OTHER EXAMINATION BY LENDER IN RESPECT TO THE PROPERTY.
MORTGAGOR AGREES TO PAY ALL COSTS AND EXPENSES INCURRED BY LENDER IN
ENFORCING OR PROTECTING LENDER'S RIGHTS AND REMEDIES UNDER THIS MORTGAGE,
INCLUDING BUT NOT LIMITED TO REASONABLE ATTORNEYS' FEES (AS DETERMINED
UNDER A.C.A. 1 6-22-308), COURT COSTS, AND OTHER LEGAL EXPENSES. ONCE THE
SECURED DEBT IS FULLY AND FINALLY PAID, LENDER AGREES TO RELEASE THIS
MORTGAGE AND MORTGAGOR AGREES TO PAY FOR ANY RECORDATION COSTS. ALL SUCH
AMOUNTS ARE DUE ON DEMAND AND WILL BEAR INTEREST FROM THE TIME OF THE
ADVANCE AT THE SAME RATE PROVIDED IN THE EVIDENCE OF DEBT AND AS PERMITTED
BY LAW.
19. ENVIRONMENTAL LAWS AND HAZARDOUS SUBSTANCES. AS USED IN THIS SECTION, (1)
"ENVIRONMENTAL LAW" MEANS, WITHOUT LIMITATION, THE COMPREHENSIVE
ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY ACT (CERCLA, 42 U.S.C.
9601 ET SEQ.), ALL OTHER FEDERAL, STATE AND LOCAL LAWS, REGULATIONS,
ORDINANCES, COURT ORDERS, ATTORNEY GENERAL OPINIONS OR INTERPRETIVE LETTERS
CONCERNING THE PUBLIC HEALTH, SAFETY, WELFARE, ENVIRONMENT OR A HAZARDOUS
SUBSTANCE; AND (2) "HAZARDOUS SUBSTANCE" MEANS ANY TOXIC, RADIOACTIVE OR
HAZARDOUS MATERIAL, WASTE, POLLUTANT OR CONTAMINANT WHICH HAS
CHARACTERISTICS WHICH RENDER THE SUBSTANCE DANGEROUS OR POTENTIALLY
DANGEROUS TO THE PUBLIC HEALTH, SAFETY, WELFARE OR ENVIRONMENT. THE TERM
INCLUDES, WITHOUT LIMITATION, ANY SUBSTANCES DEFINED AS "HAZARDOUS
MATERIAL," "TOXIC SUBSTANCES,"
"HAZARDOUS WASTE" OR "HAZARDOUS SUBSTANCE" UNDER ANY ENVIRONMENTAL LAW.
MORTGAGOR REPRESENTS, WARRANTS AND AGREES THAT, EXCEPT AS PREVIOUSLY DISCLOSED
AND ACKNOWLEDGED IN WRITING:
A. NO HAZARDOUS SUBSTANCE HAS BEEN, IS, OR WILL BE LOCATED, TRANSPORTED,
MANUFACTURED, TREATED, REFINED, OR HANDLED BY ANY PERSON ON, UNDER OR
ABOUT THE PROPERTY, EXCEPT IN THE ORDINARY COURSE OF BUSINESS AND IN
STRICT COMPLIANCE WITH ALL APPLICABLE ENVIRONMENTAL LAW.
B. MORTGAGOR HAS NOT AND WILL NOT CAUSE, CONTRIBUTE TO, OR PERMIT THE
RELEASE OF ANY HAZARDOUS SUBSTANCE ON THE PROPERTY.
C. MORTGAGOR WILL IMMEDIATELY NOTIFY LENDER IF (1) A RELEASE OR
THREATENED RELEASE OF HAZARDOUS SUBSTANCE OCCURS ON, UNDER OR ABOUT
THE PROPERTY OR MIGRATES OR THREATENS TO MIGRATE FROM NEARBY PROPERTY;
OR (2) THERE IS A VIOLATION OF ANY ENVIRONMENTAL LAW CONCERNING THE
PROPERTY. IN SUCH AN EVENT, MORTGAGOR WILL TAKE ALL NECESSARY REMEDIAL
ACTION IN ACCORDANCE WITH ENVIRONMENTAL LAW.
D. MORTGAGOR HAS NO KNOWLEDGE OF OR REASON TO BELIEVE THERE IS ANY
PENDING OR THREATENED INVESTIGATION, CLAIM, OR PROCEEDING OF ANY KIND
RELATING TO (1) ANY HAZARDOUS SUBSTANCE LOCATED ON, UNDER OR ABOUT THE
PROPERTY; OR (2) ANY VIOLATION BY MORTGAGOR OR ANY TENANT OF ANY
ENVIRONMENTAL LAW. MORTGAGOR WILL IMMEDIATELY NOTIFY LENDER IN WRITING
AS SOON AS MORTGAGOR HAS REASON TO BELIEVE THERE IS ANY SUCH PENDING
OR THREATENED INVESTIGATION, CLAIM, OR PROCEEDING. IN SUCH AN EVENT,
LENDER HAS THE RIGHT, BUT NOT THE OBLIGATION, TO PARTICIPATE IN ANY
SUCH PROCEEDING INCLUDING THE RIGHT TO RECEIVE COPIES OF ANY DOCUMENTS
RELATING TO SUCH PROCEEDINGS.
E. MORTGAGOR AND EVERY TENANT HAVE BEEN, ARE AND SHALL REMAIN IN FULL
COMPLIANCE WITH ANY APPLICABLE ENVIRONMENTAL LAW.
F. THERE ARE NO UNDERGROUND STORAGE TANKS, PRIVATE DUMPS OR OPEN WELLS
LOCATED ON OR UNDER THE PROPERTY AND NO SUCH TANK, DUMP OR WELL WILL
BE ADDED UNLESS LENDER FIRST CONSENTS IN WRITING.
G. MORTGAGOR WILL REGULARLY INSPECT THE PROPERTY, MONITOR THE ACTIVITIES
AND OPERATIONS ON THE PROPERTY, AND CONFIRM THAT ALL PERMITS, LICENSES
OR APPROVALS REQUIRED BY ANY APPLICABLE ENVIRONMENTAL LAW ARE OBTAINED
AND COMPLIED WITH.
H. MORTGAGOR WILL PERMIT, OR CAUSE ANY TENANT TO PERMIT, LENDER OR
LENDER'S AGENT TO ENTER AND INSPECT THE PROPERTY AND REVIEW ALL
RECORDS AT ANY REASONABLE TIME TO DETERMINE (1) THE EXISTENCE,
LOCATION AND NATURE OF ANY HAZARDOUS SUBSTANCE ON, UNDER OR ABOUT THE
PROPERTY; (2) THE EXISTENCE, LOCATION, NATURE AND MAGNITUDE OF ANY
HAZARDOUS SUBSTANCE THAT HAS BEEN RELEASED ON, UNDER OR ABOUT THE
PROPERTY; OR (3) WHETHER OR NOT MORTGAGOR AND ANY TENANT ARE IN
COMPLIANCE WITH APPLICABLE ENVIRONMENTAL LAW.
I. UPON LENDER'S REQUEST AND AT ANY TIME. MORTGAGOR AGREES, AT
MORTGAGOR'S EXPENSE, TO ENGAGE A QUALIFIED ENVIRONMENTAL ENGINEER TO
PREPARE AN ENVIRONMENTAL AUDIT OF THE PROPERTY AND TO SUBMIT THE
RESULTS OF SUCH AUDIT TO LENDER. THE CHOICE OF THE ENVIRONMENTAL
ENGINEER WHO WILL PERFORM SUCH AUDIT IS SUBJECT TO LENDER'S APPROVAL.
J. LENDER HAS THE RIGHT, BUT NOT THE OBLIGATION, TO PERFORM ANY OF
MORTGAGOR'S OBLIGATIONS UNDER THIS SECTION AT MORTGAGOR'S EXPENSE.
K. AS A CONSEQUENCE OF ANY BREACH OF ANY REPRESENTATION, WARRANTY OR
PROMISE MADE IN THIS SECTION, (1) MORTGAGOR WILL INDEMNIFY AND HOLD
LENDER AND LENDER'S SUCCESSORS OR ASSIGNS HARMLESS FROM AND AGAINST
ALL LOSSES, CLAIMS, DEMANDS, LIABILITIES, DAMAGES, CLEANUP, RESPONSE
AND REMEDIATION COSTS, PENALTIES AND EXPENSES, INCLUDING WITHOUT
LIMITATION ALL COSTS OF LITIGATION AND ATTORNEYS' FEES, WHICH LENDER
AND LENDER'S SUCCESSORS OR ASSIGNS MAY SUSTAIN; AND (2) AT LENDER'S
DISCRETION, LENDER MAY RELEASE THIS MORTGAGE AND IN RETURN MORTGAGOR
WILL PROVIDE LENDER WITH COLLATERAL OF AT LEAST EQUAL VALUE TO THE
PROPERTY SECURED BY THIS MORTGAGE WITHOUT PREJUDICE TO ANY OF LENDER'S
RIGHTS UNDER THIS MORTGAGE.
L. NOTWITHSTANDING ANY OF THE LANGUAGE CONTAINED IN THIS MORTGAGE TO THE
CONTRARY, THE TERMS OF THIS SECTION SHALL SURVIVE ANY FORECLOSURE OR
SATISFACTION OF THIS MORTGAGE REGARDLESS OF ANY PASSAGE OF TITLE TO
LENDER OR ANY DISPOSITION BY LENDER OF ANY OR AIL OF THE PROPERTY. ANY
CLAIMS AND DEFENSES TO THE CONTRARY ARE HEREBY WAIVED.
20. CONDEMNATION. MORTGAGOR WILL GIVE LENDER PROMPT NOTICE OF ANY ACTION, REAL
OR THREATENED, BY PRIVATE OR PUBLIC ENTITIES TO PURCHASE OR TAKE ANY OR ALL
OF THE PROPERTY, INCLUDING ANY EASEMENTS, THROUGH CONDEMNATION, EMINENT
DOMAIN, OR ANY OTHER MEANS. MORTGAGOR FURTHER AGREES TO NOTIFY LENDER OF
ANY PROCEEDINGS INSTITUTED FOR THE ESTABLISHMENT OF ANY SEWER, WATER,
CONSERVATION, DITCH, DRAINAGE, OR OTHER DISTRICT RELATING TO OR BINDING
UPON THE PROPERTY OR ANY PART OF IT. MORTGAGOR AUTHORIZES LENDER TO
INTERVENE IN MORTGAGOR'S NAME IN ANY OF THE ABOVE DESCRIBED ACTIONS OR
CLAIMS AND TO COLLECT AND RECEIVE ALL SUMS RESULTING FROM THE ACTION OR
CLAIM. MORTGAGOR ASSIGNS TO LENDER THE PROCEEDS OF ANY AWARD OR CLAIM FOR
DAMAGES CONNECTED WITH A CONDEMNATION OR OTHER TAKING OF ALL OR ANY PART OF
THE PROPERTY. SUCH PROCEEDS SHALL BE CONSIDERED PAYMENTS AND WILL BE
APPLIED AS PROVIDED IN THIS MORTGAGE. THIS ASSIGNMENT OF PROCEEDS IS
SUBJECT TO THE TERMS OF ANY PRIOR SECURITY AGREEMENT.
21. INSURANCE. MORTGAGOR AGREES TO MAINTAIN INSURANCE AS FOLLOWS:
A. MORTGAGOR SHALL KEEP THE IMPROVEMENTS NOW EXISTING OR HEREAFTER BUILT
ON THE PROPERTY INSURED AGAINST LOSS BY FIRE, HAZARDS INCLUDED WITHIN
THE TERM "EXTENDED COVERAGE" AND ANY OTHER HAZARDS, INCLUDING FLOODS
OR FLOODING, FOR WHICH LENDER REQUIRES INSURANCE. THIS INSURANCE SHALL
BE MAINTAINED IN THE AMOUNTS AND FOR THE PERIODS THAT LENDER REQUIRES.
WHAT LENDER REQUIRES PURSUANT TO THE PRECEDING TWO SENTENCES CAN
CHANGE DURING THE TERM OF THE SECURED DEBT. THE INSURANCE CARRIER
PROVIDING THE INSURANCE SHALL BE CHOSEN BY MORTGAGOR SUBJECT TO
LENDER'S APPROVAL, WHICH SHALL NOT BE UNREASONABLY WITHHELD. IF
MORTGAGOR FAILS TO MAINTAIN THE COVERAGE DESCRIBED ABOVE. LENDER MAY,
AT LENDER'S OPTION, OBTAIN COVERAGE TO PROTECT LENDER'S RIGHTS IN THE
PROPERTY ACCORDING TO THE TERMS OF THIS MORTGAGE.
ALL INSURANCE POLICIES AND RENEWALS SHALL BE ACCEPTABLE TO LENDER AND
SHALL INCLUDE A STANDARD "MORTGAGE CLAUSE" AND, WHERE APPLICABLE,
"LENDER LOSS PAYEE CLAUSE." LENDER SHALL HAVE THE RIGHT TO HOLD THE
POLICIES AND RENEWALS. IF
LENDER REQUIRES. MORTGAGOR SHALL PROMPTLY GIVE TO LENDER AIL RECEIPTS
OF PAID PREMIUMS AND RENEWAL NOTICES. UPON LOSS, MORTGAGOR SHALL GIVE
PROMPT NOTICE TO THE INSURANCE CARRIER AND LENDER. LENDER MAY MAKE
PROOF OF LOSS IF NOT MADE PROMPTLY BY MORTGAGOR.
UNLESS LENDER AND MORTGAGOR OTHERWISE AGREE IN WRITING, INSURANCE
PROCEEDS SHALL BE APPLIED TO RESTORATION OR REPAIR OF THE PROPERTY
DAMAGED IF THE RESTORATION OR REPAIR IS ECONOMICALLY FEASIBLE AND
LENDER'S SECURITY IS NOT LESSENED. IF THE RESTORATION OR REPAIR IS NOT
ECONOMICALLY FEASIBLE OR LENDER'S SECURITY WOULD BE LESSENED, THE
INSURANCE PROCEEDS SHALL BE APPLIED TO THE SECURED DEBT, WHETHER OR
NOT THEN DUE, WITH ANY EXCESS PAID TO MORTGAGOR. IF MORTGAGOR ABANDONS
THE PROPERTY, OR DOES NOT ANSWER WITHIN 30 DAYS A NOTICE FROM LENDER
THAT THE INSURANCE CARRIER HAS OFFERED TO SETTLE A CLAIM, THEN LENDER
MAY COLLECT THE INSURANCE PROCEEDS. LENDER MAY USE THE PROCEEDS TO
REPAIR OR RESTORE THE PROPERTY OR TO PAY THE SECURED DEBT WHETHER OR
NOT THEN DUE. THE 30-DAY PERIOD WILL BEGIN WHEN THE NOTICE IS GIVEN.
UNLESS LENDER AND MORTGAGOR OTHERWISE AGREE IN WRITING, ANY
APPLICATION OF PROCEEDS TO PRINCIPAL SHALL NOT EXTEND OR POSTPONE THE
DUE DATE OF SCHEDULED PAYMENTS OR CHANGE THE AMOUNT OF THE PAYMENTS.
IF THE PROPERTY IS ACQUIRED BY LENDER, MORTGAGOR'S RIGHT TO ANY
INSURANCE POLICIES AND PROCEEDS RESULTING FROM DAMAGE TO THE PROPERTY
BEFORE THE ACQUISITION SHALL PASS TO LENDER TO THE EXTENT OF THE
SECURED DEBT IMMEDIATELY BEFORE THE ACQUISITION.
B. MORTGAGOR AGREES TO MAINTAIN COMPREHENSIVE GENERAL LIABILITY INSURANCE
NAMING LENDER AS AN ADDITIONAL INSURED IN AN AMOUNT ACCEPTABLE TO
LENDER, INSURING AGAINST CLAIMS ARISING FROM ANY ACCIDENT OR
OCCURRENCE IN OR ON THE PROPERTY.
C. MORTGAGOR AGREES TO MAINTAIN RENTAL LOSS OR BUSINESS INTERRUPTION
INSURANCE, AS REQUIRED BY LENDER, IN AN AMOUNT EQUAL TO AT LEAST
COVERAGE OF ONE YEAR'S DEBT SERVICE, AND REQUIRED ESCROW ACCOUNT
DEPOSITS (IF AGREED TO SEPARATELY IN WRITING), UNDER A FORM OF POLICY
ACCEPTABLE TO LENDER.
22. NO ESCROW FOR TAXES AND INSURANCE. UNLESS OTHERWISE PROVIDED IN A SEPARATE
AGREEMENT, MORTGAGOR WILL NOT BE REQUIRED TO PAY TO LENDER FUNDS FOR TAXES
AND INSURANCE IN ESCROW.
23. FINANCIAL REPORTS AND ADDITIONAL DOCUMENTS. MORTGAGOR WILL PROVIDE TO
LENDER UPON REQUEST, ANY FINANCIAL STATEMENT OR INFORMATION LENDER MAY DEEM
NECESSARY. MORTGAGOR WARRANTS THAT ALL FINANCIAL STATEMENTS AND INFORMATION
MORTGAGOR PROVIDES TO LENDER ARE OR WILL BE ACCURATE, CORRECT, AND
COMPLETE. MORTGAGOR AGREES TO SIGN, DELIVER, AND FILE AS LENDER MAY
REASONABLY REQUEST ANY ADDITIONAL DOCUMENTS OR CERTIFICATIONS THAT LENDER
MAY CONSIDER NECESSARY TO PERFECT, CONTINUE, AND PRESERVE MORTGAGOR'S
OBLIGATIONS UNDER THIS MORTGAGE AND LENDER'S LIEN STATUS ON THE PROPERTY.
IF MORTGAGOR FAIIS TO DO SO. LENDER MAY SIGN, DELIVER, AND FILE SUCH
DOCUMENTS OR CERTIFICATES IN MORTGAGOR'S NAME AND MORTGAGOR HEREBY
IRREVOCABLY APPOINTS LENDER OR LENDER'S AGENT AS ATTORNEY IN FACT TO DO THE
THINGS NECESSARY TO COMPLY WITH THIS SECTION.
24. JOINT AND INDIVIDUAL LIABILITY; CO-SIGNERS; SUCCESSORS AND ASSIGNS SOUND.
ALL DUTIES UNDER THIS MORTGAGE ARE JOINT AND INDIVIDUAL. IF MORTGAGOR SIGNS
THIS MORTGAGE BUT DOES NOT SIGN THE EVIDENCE OF DEBT, MORTGAGOR DOES SO
ONLY TO MORTGAGE MORTGAGOR'S INTEREST IN THE PROPERTY TO SECURE PAYMENT OF
THE SECURED DEBT AND MORTGAGOR DOES NOT AGREE TO BE PERSONALLY LIABLE ON
THE SECURED DEBT. MORTGAGOR AGREES THAT LENDER AND ANY PARTY TO THIS
MORTGAGE MAY EXTEND, MODIFY OR MAKE ANY CHANGE IN THE TERMS OF THIS
MORTGAGE OR THE EVIDENCE OF DEBT WITHOUT MORTGAGOR'S CONSENT. SUCH A CHANGE
WILL NOT RELEASE MORTGAGOR FROM THE TERMS OF THIS MORTGAGE. THE DUTIES AND
BENEFITS OF THIS MORTGAGE SHALL BIND AND BENEFIT THE SUCCESSORS AND ASSIGNS
OF MORTGAGOR AND LENDER. IF THIS MORTGAGE SECURES A GUARANTY BETWEEN LENDER
AND MORTGAGOR AND DOES NOT DIRECTLY SECURE THE OBLIGATION WHICH IS
GUARANTIED. MORTGAGOR AGREES TO WAIVE ANY RIGHTS THAT MAY PREVENT LENDER
FROM BRINGING ANY ACTION OR CLAIM AGAINST MORTGAGOR OR ANY PARTY INDEBTED
UNDER THE OBLIGATION INCLUDING, BUT NOT LIMITED TO, ANTI-DEFICIENCY OR
ONE-ACTION LAWS.
25. APPLICABLE LAW; SEVERABILITY; INTERPRETATION. THIS MORTGAGE IS GOVERNED BY
THE LAWS OF THE JURISDICTION IN WHICH LENDER IS LOCATED, EXCEPT TO THE
EXTENT OTHERWISE REQUIRED BY THE LAWS OF THE JURISDICTION WHERE THE
PROPERTY IS LOCATED. THIS MORTGAGE IS COMPLETE AND FULLY INTEGRATED. THIS
MORTGAGE MAY NOT BE AMENDED OR MODIFIED BY ORAL AGREEMENT. ANY SECTION OR
CLAUSE IN THIS MORTGAGE, ATTACHMENTS, OR ANY AGREEMENT RELATED TO THE
SECURED DEBT THAT CONFLICTS WITH APPLICABLE LAW WILL NOT BE EFFECTIVE,
UNLESS THAT LAW EXPRESSLY OR IMPLIEDLY PERMITS THE VARIATIONS BY WRITTEN
AGREEMENT. IF ANY SECTION OR CLAUSE OF THIS MORTGAGE CANNOT BE ENFORCED
ACCORDING TO ITS TERMS, THAT SECTION OR CLAUSE WILL BE SEVERED AND WILL NOT
AFFECT THE ENFORCEABILITY OF THE REMAINDER OF THIS MORTGAGE. WHENEVER USED,
THE SINGULAR SHALL INCLUDE THE PLURAL AND THE PLURAL THE SINGULAR. THE
CAPTIONS AND HEADINGS OF THE SECTIONS OF THIS MORTGAGE ARE FOR CONVENIENCE
ONLY AND ARE NOT TO BE USED TO INTERPRET OR DEFINE THE TERMS OF THIS
MORTGAGE. TIME IS OF THE ESSENCE IN THIS MORTGAGE.
26. NOTICE. UNLESS OTHERWISE REQUIRED BY LAW, ANY NOTICE TO MORTGAGOR SHALL BE
GIVEN BY DELIVERING IT OR BY MAILING IT BY FIRST CLASS MAIL TO MORTGAGOR'S
ADDRESS ON PAGE 1 OF THIS MORTGAGE, OR TO ANY OTHER ADDRESS THAT MORTGAGOR
HAS DESIGNATED IN WRITING. MORTGAGOR WILL GIVE ANY NOTICE TO LENDER BY
MAILING IT FIRST CLASS TO LENDER'S ADDRESS ON PAGE 1 OF THIS MORTGAGE, OR
TO ANY OTHER ADDRESS THAT LENDER HAS DESIGNATED IN WRITING. ANY NOTICE
SHALL BE DEEMED TO HAVE BEEN GIVEN TO EITHER PARTY WHEN GIVEN IN THE MANNER
STATED ABOVE.
27. WAIVERS. TO THE EXTENT APPLICABLE, MORTGAGOR WAIVES ALL RIGHTS RELATING TO
APPRAISEMENT, SALE, REDEMPTION AND HOMESTEAD UNDER THE LAWS OF THE STATE OF
ARKANSAS, ESPECIALLY UNDER 18-49-106. TO THE EXTENT APPLICABLE, MORTGAGOR
RELINQUISHES ALL RIGHTS OF CURTESY AND DOWER IN THE PROPERTY.
28. CONSTRUCTION LOAN. IF THIS SECURITY INSTRUMENT SECURED A CONSTRUCTION LOAN,
MORTGAGOR AGREES THAT LENDER IS NOT TRUSTEE FOR THE BENEFIT OF THE
CONTRACTOR, SUBCONTRACTOR OR MATERIALMEN AND THAT SUCH CONTRACTOR,
SUBCONTRACTOR OR MATERIALMEN DO NOT HAVE EQUITABLE LIENS ON THE LOAN
PROCEEDS AND THAT THEY DO NOT HAVE THIRD-PARTY BENEFICIARY STATUS TO ANY OF
THE LOAN PROCEEDS. LENDER IS OBLIGATED TO MAKE THE CONSTRUCTION ADVANCES.
THE CONSTRUCTION ADVANCES SHALL BE APPLIED BY MORTGAGOR TO THE PAYMENT OF
INTEREST, FEES, EXPENSES AND LABOR AND MATERIAL COSTS INCURRED IN THE
CONSTRUCTION OF THE IMPROVEMENTS, AND/OR REMODELING AND REPAIRS OF THE
EXISTING IMPROVEMENTS, LOCATED ON THE PROPERTY. NOTICE IS HEREBY GIVEN THAT
TO THE FULL EXTENT PERMITTED UNDER ARK. STAT. ANN. SS. 18-44-110, THE LIEN
OF THIS SECURITY INSTRUMENT WIIL HAVE PRIORITY OVER ANY STATUTORY LIENS ON
ACCOUNT OF LABOR AND MATERIALS SUPPLIED FOR CONSTRUCTION.
29. U.C.C. PROVISIONS. IF CHECKED, THE FOLLOWING ARE APPLICABLE TO, BUT DO NOT
LIMIT, THIS MORTGAGE:
CONSTRUCTION LOAN. THIS MORTGAGE SECURES AN OBLIGATION INCURRED FOR THE
CONSTRUCTION OF AN IMPROVEMENT ON THE PROPERTY.
FIXTURE FILING. MORTGAGOR GRANTS TO LENDER A SECURITY INTEREST IN ALL GOODS THAT
MORTGAGOR OWNS NOW OR IN THE FUTURE AND THAT ARE OR WILL BECOME FIXTURES
RELATED TO THE PROPERTY.
CROPS; TIMBER; MINERALS; RENTS, issues and Profits. MORTGAGOR GRANTS TO LENDER A
SECURITY INTEREST IN ALL CROPS, TIMBER, AND MINERALS LOCATED ON THE
PROPERTY AS WELL AS ALL RENTS, ISSUES, AND PROFITS OF THEM INCLUDING, BUT
NOT LIMITED TO, ALL CONSERVATION RESERVE PROGRAM (CRP) AND PAYMENT IN KIND
(PIK) PAYMENTS AND SIMILAR GOVERNMENTAL PROGRAMS (ALL OF WHICH SHALL ALSO
BE INCLUDED IN THE TERM "PROPERTY").
PERSONAL PROPERTY. MORTGAGOR GRANTS TO LENDER A SECURITY INTEREST IN ALL
PERSONAL PROPERTY LOCATED ON OR CONNECTED WITH THE PROPERTY. THIS SECURITY
INTEREST INCLUDES ALL FARM PRODUCTS, INVENTORY, EQUIPMENT, ACCOUNTS,
DOCUMENTS, INSTRUMENTS, CHATTEL PAPER, GENERAL INTANGIBLES, AND ALL OTHER
ITEMS OF PERSONAL PROPERTY MORTGAGOR OWNS NOW OR IN THE FUTURE AND THAT ARE
USED OR USEFUL IN THE CONSTRUCTION, OWNERSHIP, OPERATION, MANAGEMENT, OR
MAINTENANCE OF THE PROPERTY. THE TERM "PERSONAL PROPERTY" SPECIFICALLY
EXCLUDES THAT PROPERTY DESCRIBED AS "HOUSEHOLD GOODS" SECURED IN CONNECTION
WITH A "CONSUMER" LOAN AS THOSE TERMS ARE DEFINED IN APPLICABLE FEDERAL
REGULATIONS GOVERNING UNFAIR AND DECEPTIVE CREDIT PRACTICES.
30. OTHER TERMS. IF CHECKED, THE FOLLOWING ARE APPLICABLE TO THIS MORTGAGE:
Line of Credit. THE SECURED DEBT INCLUDES A REVOLVING LINE OF CREDIT PROVISION.
ALTHOUGH THE SECURED DEBT MAY BE REDUCED TO A ZERO BALANCE, THIS MORTGAGE
WILL REMAIN IN EFFECT UNTIL RELEASED.
Agricultural PROPERTY. MORTGAGOR COVENANTS AND WARRANTS THAT THE PROPERTY WILL
BE USED PRINCIPALLY FOR AGRICULTURAL OR FARMING PURPOSES AND THAT MORTGAGOR
IS AN INDIVIDUAL OR ENTITY ALLOWED TO OWN AGRICULTURAL LAND AS SPECIFIED BY
LAW.
SEPARATE Assignment. THE MORTGAGOR HAS EXECUTED OR WILL EXECUTE A SEPARATE
ASSIGNMENT OF LEASES AND RENTS. IF THE SEPARATE ASSIGNMENT OF LEASES AND
RENTS IS PROPERLY EXECUTED AND RECORDED/THEN THE SEPARATE ASSIGNMENT WILL
SUPERSEDE THIS SECURITY INSTRUMENT'S "ASSIGNMENT OF LEASES AND RENTS"
SECTION.
Additional Terms.
SIGNATURES: BY SIGNING BELOW, MORTGAGOR AGREES TO THE TERMS AND COVENANTS
CONTAINED IN THIS MORTGAGE AND IN ANY ATTACHMENTS THAT MORTGAGOR HAS
SIGNED. MORTGAGOR ALSO ACKNOWLEDGES RECEIPT OF A COPY OF THIS MORTGAGE ON
THE DATE STATED ABOVE ON PAGE 1.
G ACTUAL AUTHORITY WAS GRANTED TO THE PARTIES SIGNING BELOW BY RESOLUTION SIGNED
AND DATED ________________.
ENTITY NAME: CAPITOL DEVELOPMENT OF ARKANSAS, INC NAME:
/s/ Michael G. Todd 04/20/2004 (DATE)
- ----------------------------------------
MICHAEL G TODD PRESIDENT
(Signature
- --------------------------------------------------------------------------------
LJ REFER TO THE ADDENDUM WHICH IS ATTACHED AND INCORPORATED HEREIN FOR
ADDITIONAL MORTGAGORS, SIGNATURES AND ACKNOWLEDGMENTS.
FORM 715
(C)1993. 2001 BANKERS SYSTEMS. INC.. ST.
CLOUD. MN FORM AGCO-HESL-AR 1/2/2003
STATE OF ARKANSAS, COUNTY OF PULASKI } SS
ON THIS 22ND DAY OF APRIL 2004 , BEFORE ME , A NOTARY, PERSONALLY APPEARED
MICHAEL G. TODD (TITLE(S) OF PRESIDENT
(NAME OF BUISNESS OR ENTITY) CAPITOL DEVELOPMENT OF ARKANSAS, INC, AND THAT
THEY, AS SUCH OFFICERS, BEING AUTHORIZED SO TO DO, EXECUTING THE FORGOING
INSTRUMENT FOR THE PURPOSES THEREIN CONTAINED, BY SIGNING THE NAME OF THE
BUISNESS OR ENTITY AS SUCH OFFICERS.
MY COMMISSION EXPIRES : 3-20-2013
2004033146
Exhibit "A"
Tract One:
Tract D-R, being a Re-Plat of Tract D Maumelle Town Center Addition to the City
of Maumelle, Arkansas, which includes Shared Access Easement 'B', and being
shown on plat recorded as Plat No. G-607, records of Pulaski County, Arkansas,
lying in the Southwest 1/4 of Section 33, Township 3 North, Range 13 West more
particularly described as follows:
Commencing at the Northwest corner of the Southwest Quarter of Section 33,
Township 3 North, Range 13 West (Arkansas State Plane Coordinates of North
188,568.425 East 1,877,503.537); thence North 00 degrees 00 minutes 00 seconds
East 211.92 feet; thence North 90 degrees 00 minutes 00 seconds East 597.77 feet
to the point of beginning which is also on the East right of way of Club Manor
Drive; thence along a 81.1453 degree curve to the right 56.65 feet to a point
having a chord bearing and distance of North 85 degrees 21 minutes 01 seconds
East 52.03 feet to a point on the South right of way of Audubon Drive; thence
along a 4.5752 degree curve to the left 509.35 feet to a point having a chord
bearing and distance of South 56 degrees 04 minutes 53 seconds East 505.85 feet;
thence South 67 degrees 44 minutes 00 seconds East 11.00 feet; thence leaving
said right of way South 22 degrees 16 minutes 00 seconds West 297.00 feet;
thence South 67 degrees 44 minutes 00 seconds East 220.00 feet to a point which
is also on the West right of way of Maumelle Boulevard; thence continuing along
said right of way line South 22 degrees 16 minutes 00 seconds West 193.02 feet;
thence South 22 degrees 16 minutes 07 seconds West 685.52 feet; thence leaving
said right of way North 67 degrees 43 minutes 53 seconds West 503.11 feet;
thence South 22 degrees 26 minutes 51 seconds West 339.61 feet; thence along a
24.9113 degree curve to the left 83.37 feet to a point having a chord bearing
and distance of South 12 degrees 03 minutes 47 seconds West 82.92 feet; thence
South 01 degree 40 minutes 43 seconds West 33.04 feet; thence South 45 degrees
49 minutes 57 seconds West 34.83 feet to a point which is also on the North
right of way of Odom Boulevard; thence continuing along said right of way South
89 degrees 59 minutes 11 seconds West 102.44 feet; thence North 89 degrees 02
minutes 25 seconds West 60.77 feet; thence North 89 degrees 59 minutes 27
seconds West 261.99 feet; thence leaving said North right of way line along a
81.1453 degree curve to the right 62.83 feet to a point having a chord bearing
and distance of North 44 degrees 59 minutes 26 seconds West 56.57 feet to a
point which is also on the East right of way of Club Manor Drive; thence
continuing along said right of way North 00 degrees 00 minutes 34 seconds East
299.72 feet; thence along a 4.7837 degree curve to the right 919.67 feet to a
point having a chord bearing and distance of North 22 degrees 00 minutes 23
seconds East 897.24 feet; thence North 44 degrees 00 minutes 13 seconds East
754.39 feet to the point of beginning.
Tract Two:
Tract Dl, being a Re-Plat of Tract D Maumelle Town Center Addition to the City
of Maumelle, Arkansas, which includes Shared Access Easement 'A', and being
shown on plat recorded as Plat NOL G-607, records of Pulaski County, Arkansas,
lying in the Southwest 1/4 of Section 33, Township 3 North, Range 13 West more
particularly described as follows:
Commencing at the Northwest corner of the Southwest Quarter of Section 33,
Township 3 North, Range 13 West (Arkansas State Plane coordinates of North
188,568.425 East 1,877,503.537); thence South 00 degrees 00 minutes 00 seconds
West 1050.91 feet; thence South 90 degrees 00 minutes 00 seconds East 372.08
feet to the point of beginning; thence South 67 degrees 43 minutes 53 seconds
East 503.11 feet to a point which is also on the West right of way of Maumelle
Boulevard; thence South 22 . degrees 15 minutes 07 seconds West 347.67 feet;
thence leaving said right of way along a 90.5503 degree curve to the right 79.02
feet to point having a chord bearing and distance of South 66 degrees 59 minutes
21 seconds West 71.05 feet to a point which is also on the North right of way of
Odom Boulevard; thence continuing along said right of way North 68 degrees 17
minutes 25 seconds West 20.70 feet; thence along a 5.0682 degree curve to the
left 324.55 feet to a point having a chord bearing and distance of North 76
degrees 30 minutes 41 seconds West 323.43 feet; thence along a 5.0662 degree
curve to the left 104.25 feet to a point having a chord bearing and distance of
North 87 degrees 22 minutes 23 seconds West 104.21 feet; thence South 89 degrees
59 minutes 11 seconds West 3.50 feet; thence leaving said right of way North 45
degrees 49 minutes 57 seconds East 34.83 feet; thence North 01 degrees 40
minutes 43 seconds East 33.04 feet; thence along a 24.9115 degree curve to the
right 83.37 feet to a point having a chord bearing and distance of North 12
degrees 03 minutes 47 seconds East 82.92 feet; thence North 22 degrees 26
minutes 51 seconds East 339.61 feet to the point of beginning.
April 21, 2004
2004-4033
I si