THIS INSTRUMENT PREPARED BY:
KEVIN R. BURNS
ROSE LAW FIRM
120 EAST FOURTH STREET
LITTLE ROCK, AR 72201
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MORTGAGE, SECURITY AGREEMENT, ASSIGNMENT
OF RENTS AND FIXTURE FILING
THIS MORTGAGE, SECURITY AGREEMENT, ASSIGNMENT OF RENTS AND FIXTURE
FILING ("Mortgage"), dated as of September 11, 2003 is executed and delivered by
Capitol Development of Arkansas, Inc., an Arkansas corporation, having a mailing
address of 900 North Federal Highway, Suite 410, Boca Raton, FL 33432,
("Mortgagor") in favor of Noble International Investments, Inc., a Florida
corporation, as collateral agent (in such capacity, "Agent") for the purchasers
(collectively, the "Lenders") of Mortgagor's 8% Senior Notes dated of even date
herewith (collectively, as the same may hereafter be renewed, extended,
converted or modified, the "Notes") having a mailing address of 6501 Congress
Avenue, Suite 100, Boca Raton, FL 33487.
W I T N E S S E T H:
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WHEREAS, pursuant to a Note Purchase Agreement of even date herewith by
and among Mortgagor, Capitol Communities Corporation, a Nevada corporation
("Communities"), Lenders and Agent (the "Note Purchase Agreement"), Mortgagor
and Communities have issued promissory notes of even date herewith in the
aggregate principal amount of U.S. Three Million and no/100 Dollars
($3,000,000.00) (collectively, the "Notes") to the Lenders.
NOW, THEREFORE, the undersigned, in consideration of the indebtedness
arising under the Notes and said premises, the receipt and sufficiency of which
is hereby acknowledged by Mortgagor, and to secure the prompt payment of said
indebtedness with interest thereon, and all renewals, extensions, modifications
and replacements thereof, and all obligations, judgments, decrees, awards and
orders in connection therewith, the payment of any further sum or sums for which
Mortgagor may hereafter become indebted to the Agent and the Lenders under the
provisions hereof, (all such indebtedness is hereinafter collectively referred
to as the "Secured Indebtedness"), and further to secure the performance of the
covenants, conditions and agreements contained herein, in the Note Purchase
Agreement, the Note Purchase Documents (as such term is defined in the Note
Purchase Agreement) and any other instruments now or hereafter securing the
Notes (collectively, the "Loan Documents"), Mortgagor has bargained and sold and
hereby grants, bargains, sells and conveys to Agent, its successors and assigns,
the following described land, real estate, buildings, improvements, fixtures,
furniture, and other personal property (which together with any additional such
property hereinafter acquired by the Mortgagor and subject to the lien of this
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THE FINAL MATURITY DATE OF THE INDEBTEDNESS SECURED HEREBY IS SEPTEMBER 11,
2006.
Mortgage, or intended to be so, as the same may be from time to time
constituted, hereinafter referred to as the "Mortgaged Property") to wit:
(a) All of the Mortgagor's interest in the tract(s) or parcel(s) of
land particularly described in Exhibit A attached hereto and made a part hereof
(the "Land");
(b) All of the Mortgagor's interest in streets, curbs, gutters, water
systems and lines, water towers, sewer systems and lines, buildings, structures,
and improvements of every nature whatsoever now or hereafter situated on the
Land, and all fixtures, machinery, equipment, furniture, furnishings, and
personal property of every nature whatsoever now or hereafter owned by the
Mortgagor and located in, on, or used or intended to be used in connection with
or with the operation of said property, buildings, structures, or other
improvements, including all extensions, additions, improvements, betterments,
renewals and replacements to any of the foregoing (the "Improvements");
(c) All of the Mortgagor's interest in the building materials,
equipment, fixtures, fittings, and personal property of every kind or character
now owned or hereafter acquired by the Mortgagor for the purpose of being used
or useful in connection with the improvements located or to be located on the
Land, whether such materials, equipment, fixtures, fittings, and personal
property are actually located on or adjacent to the Land or not, and whether in
storage or otherwise, wheresoever the same may be located, including, but
without limitation, all lumber and lumber products, bricks, building stones, and
building blocks, sand and cement, roofing material, paint, doors, windows,
hardware, nails, wires and wiring, plumbing and plumbing fixtures, heating and
air conditioning equipment and appliances, compressors, electrical and gas
equipment and appliances, pipes and piping, ornamental and decorative fixtures,
furniture, ranges, refrigerators, dishwashers, disposals, and in general all
building materials and equipment of every kind and character used or useful in
connection with said Improvements.
TOGETHER with all easements, cross easements, rights of way, strips and
gores of land, streets, ways, alleys, passages, sewer rights, waters, water
courses, water rights and powers, and all estates, rights, titles, interests,
privileges, liberties, tenements, hereditaments, and appurtenances whatsoever,
in any way belonging, relating or appertaining to any of the property
hereinabove described, or which hereafter shall in any way belong, relate or be
appurtenant thereto, whether now owned or hereafter acquired by the Mortgagor,
and the reversion and reversions, remainder and remainders, rents, issues, and
profits thereof, and all the estate, right, title, interest, property,
possession, claim, and demand whatsoever at law, as well as in equity, of the
Mortgagor of, in and to the same, including but not limited to:
(a) All of Mortgagor's interest in the rents, profits, issues, and
revenues of the Mortgaged Property from time to time accruing, whether under
leases or tenancies now existing or hereafter created, not as collateral but
absolutely and directly, reserving to Mortgagor, however, so long as Mortgagor
is not in default hereunder, the right to receive and retain the rents, issues,
and profits thereof; and
(b) All of Mortgagor's interest in the judgments, awards of damages,
and settlements hereafter made resulting from condemnation proceedings or the
79685-1 2
taking of the Land and/or Improvements or any part thereof under the power of
eminent domain, or for any damage (whether caused by such taking or otherwise)
to the Land and/or Improvements thereon or any part thereof, or to any rights
appurtenant thereto, including any award for change of grade or streets. Agent
may apply all such sums or any part thereof so received, after the payment of
all its expenses, including costs and attorneys' fees, on the indebtedness
secured hereby in such manner as it elects, or at its option, the entire amount
or any part thereof so received may be released.
TO HAVE AND TO HOLD the Mortgaged Property, and every part thereof,
unto Agent, its successors and assigns, forever.
PROVIDED, HOWEVER, the foregoing conveyance is given as a mortgage and
lien for the Secured Indebtedness and as a mortgage and lien for the
indebtedness under the Notes and that if Mortgagor shall pay the Secured
Indebtedness, including without limitation any future payments, advances, or
expenditures made by the Lenders under the provisions of any of the Loan
Documents and including the indebtedness under the Notes, and shall reimburse
the Lenders, their respective successors and assigns, for their attorneys' fees
in documenting the Notes and Mortgage and enforcing same, if necessary, and for
any amounts it may have expended pursuant to any authorizations contained in any
of the Loan Documents, including, without limitation, sums spent in payment of
taxes, assessments, insurance, other liens, and repairs, and interest thereon,
and shall pay any other sums required to be paid by it under any of the
provisions of any of the Loan Documents agreed to be done, all of which is part
of the Secured Indebtedness then and only then, shall this conveyance be null
and void (except for provisions hereof which expressly survive); otherwise it
shall remain in full force and effect.
ARTICLE I
1.01 Performance of Loan Documents. The Mortgagor will perform, observe
and comply with all provisions of the Loan Documents and duly and punctually
will pay to each Lender the sum of money expressed in each such Lender's Note
with interest thereon and all other sums required to be paid by the Mortgagor
pursuant to the provisions of this Mortgage or the other Loan Documents, all
without any deductions or credit for taxes or other similar charges paid by the
Mortgagor.
1.02 Warranty of Title. The Mortgagor is lawfully seized of an
indefeasible estate in fee simple in the Land. The Mortgagor is lawfully seized
of an undivided indefeasible estate in fee simple in the Improvements. Mortgagor
has good and absolute title to all existing personal property hereby conveyed
and has good right, full power and lawful authority to sell, convey and encumber
its interest in the Mortgaged Property in the manner and form aforesaid. Except
as otherwise set forth in any title insurance policy insuring this Mortgage as
approved by Agent (the "Permitted Encumbrances"), the same is free and clear of
all liens, charges, and encumbrances whatsoever, including, as to the personal
property and fixtures, conditional sales contracts, chattel mortgages, security
agreements, financing statements, and anything of a similar nature, and that
Mortgagor shall and will warrant and forever defend the title thereto unto the
Lenders, their successors and assigns, against the lawful claims of all persons
whomsoever.
79685-1 3
1.03 Monthly Tax Deposits. If requested by Agent after the occurrence
of an Event of Default, the Mortgagor will pay to the Agent for the account of
Mortgagor on the first day of each month in addition to the regular installment
of interest, until the Notes are fully paid, an amount equal to one-twelfth
(1/12th) of the yearly taxes and assessments as estimated by the Agent to be
sufficient to enable the Agent to pay, at least thirty (30) days before they
become delinquent, all taxes, assessments, and other similar charges against the
Mortgaged Property or any part thereof. Until taxes become due and payable, such
payments shall be held in a segregated escrow fund or trust account with a
federally insured financial institution, and no interest shall be payable in
respect thereof. Upon demand of Agent, the Mortgagor agrees to deliver to Agent
such additional moneys as are necessary to make up any deficiencies in the
amounts necessary to enable Agent to pay such taxes, assessments and similar
charges.
1.04 Other Taxes, Utilities and Liens.
(a) The Mortgagor will pay promptly, prior to delinquency, and will
exhibit promptly to Agent receipts for the payment of all taxes, assessments,
water rates, dues, charges, fines and impositions of every nature whatsoever
imposed, levied or assessed or to be imposed, levied or assessed upon or against
the Mortgaged Property or any part thereof, or upon the interest of Agent in the
Mortgaged Property (other than any of the same for which provision has been made
in Section 1.03 hereof), as well as all income taxes, assessments and other
governmental charges lawfully levied and imposed by the United States of America
or any state, county, municipality, borough or other taxing authority upon the
Mortgagor or in respect of the Mortgaged Property or any part thereof, or any
charge which, if unpaid, would become a lien or charge upon the Mortgaged
Property prior to or equal to the lien of this Mortgage.
(b) The Mortgagor will pay promptly all charges by utility companies,
whether public or private, for electricity, gas, water, sewer, or other
utilities.
(c) The Mortgagor shall pay promptly and will not suffer any
mechanic's, laborer's, statutory, or other lien which might or could be prior to
or equal to the lien of this Mortgage to remain outstanding upon any of the
Mortgaged Property, unless arrangements satisfactory to Agent are made with
respect thereto.
(d) In the event of the passage of any state, federal, municipal or
other governmental law, order, rule or regulation, subsequent to the date
hereof, in any manner changing or modifying the laws now in force governing the
taxation of mortgages, deeds of trust or debts secured by deeds of trust or the
manner of collecting taxes so as to affect adversely Agent or the Lenders, the
Mortgagor shall have a period of thirty (30) days from Agent's demand to make,
or reimburse Agent and the Lenders for, payment of same. If it shall be unlawful
for Mortgagor to pay the same, the entire Secured Indebtedness shall, at the
option of Agent, become immediately due and payable.
1.05 Insurance. The Mortgagor will procure (or cause to be procured)
for, deliver to, and maintain for the benefit of Agent and the Lenders during
the life of this Mortgage, insurance with responsible insurance companies on the
Mortgaged Property, in such amounts and against such risks as is customarily
maintained by similar businesses operating in the same vicinity, with such
79685-1 4
companies and in such amounts as are satisfactory to Agent and providing for at
least 30 days prior notice to Agent of any cancellation thereof. Satisfactory
evidence of such insurance will be supplied to Agent prior to funding under the
Notes and 30 days prior to each policy renewal. Agent shall be named as
mortgagee and loss payee in all casualty insurance policies and as an additional
insured under all liability policies. In the event of the foreclosure of this
Mortgage or any other transfer of title to the Mortgaged Property in
extinguishment of the indebtedness secured hereby, all right, title and interest
of the Mortgagor in and to all insurance policies then in force shall pass to
the purchaser or grantee. The Agent and the Lenders acknowledge that the
Mortgaged Property is undeveloped real estate and that no Improvements currently
exist on the Mortgaged Property. Further, as the Improvements Mortgagor intends
to construct on the Mortgaged Property consists of roads and utilities which
will be dedicated for public use, the Agent and the Lenders acknowledge that
there will be no Improvement to insure for property casualty coverage. The Agent
and the Lenders agree that the current insurance company utilized by the
Mortgagor is an acceptable insurance company to provide the liability insurance
coverage required by this Section 1.05.
Upon an Event of Default, Agent is hereby authorized and empowered, at
its option, to adjust or compromise any loss under any insurance policies on the
Mortgaged Property. In any event Agent is entitled to receive the proceeds from
any such policy or policies. Each insurance company is hereby authorized and
directed to make payment for all such losses, directly to the Agent, instead of
to the Mortgagor and Agent jointly. After deducting from said insurance proceeds
any reasonable expenses incurred by it in the collection or handling of said
fund, Agent may apply the net proceeds, at its option, either toward restoring
the Improvements, or as a pro-rata credit on the Notes; whether then matured or
to mature in the future, or at the option of Agent, such sums either wholly or
in part may be paid over to the Mortgagor to be used to repair such Improvements
or to build new Improvements in its place or for any other purpose or object
satisfactory to Agent without affecting the lien of this Mortgage for the full
amount secured hereby before such payment took place. Agent shall not be held
responsible for any failure to collect any insurance proceeds due under the
terms of any policy regardless of the cause of such failure.
Following Agent's request after an Event of Default, the Mortgagor will
pay to Agent for the account of Mortgagor on the first day of each month,
together with and in addition to the regular installment of principal and
interest and monthly tax deposit (as required by Section 1.03 hereof) until the
Notes are fully paid, an amount equal to one-twelfth (1/12th) of the yearly
premiums for insurance. Until insurance premiums become due and payable, such
payments shall be held in a segregated escrow fund or trust account with a
federally insured financial institution, and no interest shall be payable in
respect thereof. Upon demand of Agent, the Mortgagor agrees to deliver to Agent
such additional moneys as are necessary to make up any deficiencies in the
amounts necessary to enable Agent to pay such insurance premiums. Upon the
occurrence of an Event of Default Agent may apply to the reduction of the sums
secured hereby, in such manner as Agent shall determine, any amount paid in
accordance herewith remaining to the Mortgagor's credit.
1.06 Condemnation. If all or any part of the Mortgaged Property shall
be damaged or taken through condemnation (which term when used in this Mortgage
shall include any damage or taking by any Governmental Authority, and any
79685-1 5
transfer by private sale in lieu thereof, either temporarily (but only if such
temporary taking exceeds ninety (90) days), or permanently, the entire
indebtedness secured hereby shall become immediately due and payable. The
Mortgagor, immediately upon obtaining knowledge of the institution of any
proceeding for the condemnation of the Mortgaged Property, or any portion
thereof (a "Proceeding"), will notify Agent immediately of the pendency of such
Proceeding. Agent shall be entitled to all compensation, awards, and other
payments or relief therefor and upon Mortgagor's consent so long as no Event of
Default exists, is hereby authorized, at its option, to commence, appear in and
prosecute, in its own or the Mortgagor's name, any proceeding and to settle or
compromise any claim in connection therewith. All such compensation, awards,
damages, claims, rights of action and proceeds and the right thereto are hereby
assigned by the Mortgagor to Agent, and the Mortgagor agrees to execute such
further assignments of any compensations, awards, damages, claims, rights of
action and proceeds as Agent may require. Agent, after deducting therefrom all
its reasonable expenses, including reasonable attorney's fees, may release any
moneys so received by it from a proceeding without affecting the lien of this
Mortgage or may apply the same in such manner as Agent shall determine to the
reduction of the sums secured hereby (without prepayment premium or penalty),
and any balance of such moneys then remaining shall be paid to the Mortgagor.
1.07 Care of the Mortgaged Property.
(a) The Mortgagor will preserve and maintain the Mortgaged Property in
good condition and repair and will not commit or suffer any waste and will not
do or suffer to be done anything which will increase the risk of fire or other
hazard to the Mortgaged Property or any part thereof.
(b) No Improvements, buildings, fixtures, personal property, or other
part of the Mortgaged Property shall be removed, demolished or substantially
altered without the prior written consent of Agent. The Mortgagor may sell or
otherwise dispose of, free from the lien of this Mortgage, furniture,
furnishings, equipment, tools, appliances, machinery, fixtures or appurtenances,
subject to the lien hereof, which may become worn out, undesirable, obsolete,
disused or unnecessary for use in the operation of the Mortgaged Property, upon
replacing the same by, or substituting for the same, other furniture,
furnishings, equipment, tools, appliances, machinery, fixtures, or appurtenances
not necessarily of the same character but of equal usefulness in the operation
of the Mortgagor's business, and of at least equal value to the Mortgagor and
costing not less than the amount realized from the property sold or otherwise
disposed of, which shall forthwith become, without further action, subject to
the lien of this Mortgage with the same priority as the replaced property. Agent
hereby consents to Mortgagor clearing and grubbing the Mortgaged Property and
constructing roads, utilities and other infrastructure improvements necessary to
subdivide the Mortgaged Property for sale in individual lots.
(c) If the Mortgaged Property or any part thereof is damaged by fire or
any other cause, the Mortgagor will give immediate written notice of the same to
Agent.
(d) Agent is hereby authorized to enter upon and inspect the Mortgaged
Property at any time during normal business hours.
79685-1 6
(e) The Mortgagor will comply promptly with all present and future
laws, ordinances, rules and regulations of any governmental authority affecting
the Mortgaged Property or any part thereof, including, without limitation, all
laws, ordinances, rules and regulations relating to zoning, building codes, set
back requirements, and environmental matters, and all present and future
restrictive covenants affecting the Mortgaged Property.
1.08 Further Assurances: After Acquired Mortgaged Property. At any
time, and from time to time, upon request by Agent, the Mortgagor will make,
execute and deliver or cause to be made, executed and delivered, to Agent and,
where appropriate, to cause to be recorded and/or filed and from time to time
thereafter to be re-recorded and/or refiled at such time and in such offices and
places as shall be deemed desirable by Agent any and all such other and further
mortgages, instruments of further assurance, certificates and other documents as
may, in the opinion of Agent, be necessary or desirable in order to effectuate,
complete, perfect, or to continue and preserve the obligation of the Mortgagor
under the Notes, this Mortgage and all Loan Documents, and the lien of this
Mortgage as a first and prior lien upon all of the Mortgaged Property, whether
now owned or hereafter acquired by the Mortgagor. Upon any failure by the
Mortgagor so to do, Agent may make, execute, and record any and all such
mortgages, instruments, certificates, and documents for and in the name of the
Mortgagor as permitted by law. The lien hereof will automatically attach,
without further act, to all after acquired property attached to and/or used in
the operation of the Mortgaged Property or any part thereof.
1.09 Expenses. The Mortgagor will pay or reimburse Agent for all
reasonable attorney's fees, costs, and expenses incurred by Agent in any
proceeding involving the estate of a decedent or an insolvent, or in any action,
proceeding, or dispute of any kind in which Agent is made a party, or appears as
party plaintiff or defendant, affecting any of the Loan Documents, Mortgagor, or
the Mortgaged Property, including but not limited to the foreclosure of this
Mortgage, any condemnation action involving the Mortgaged Property, or any
action to protect the security hereof; and any such amounts paid by Agent in
connection therewith shall bear interest at the lesser of the maximum lawful
rate allowed by law (the "Maximum Lawful Rate") or ten percent (10%) per annum,
which shall be payable upon demand, and shall be secured by the lien of this
Mortgage.
1.10 Performance by Agent of Defaults by Mortgagor. If the Mortgagor
shall default in the payment of any tax, lien, assessment, or charge levied or
assessed against the Mortgaged Property, in the payment of any utility charge,
whether public or private, in the payment of insurance premium; in the
procurement of insurance coverage and the delivery of the insurance policies
required hereunder, or in the performance or observance of any covenant,
condition, or term of this Mortgage, then Agent, at its option, at the end of
any applicable cure period may perform or observe the same, and all payments
made for costs or incurred by Agent in connection therewith, shall be secured
hereby and shall be, immediately repaid by the Mortgagor to Agent on demand with
interest thereon at the lesser of the Maximum Lawful Rate or ten percent (10%)
per annum. Agent is hereby empowered to enter and to authorize others to enter
upon the Mortgaged Property or any part thereof for the purpose of performing or
observing any such defaulted covenant, condition or term, without thereby
becoming liable to the Mortgagor or any person in possession holding under the
Mortgagor. Agent shall be responsible for any grossly negligent or willful
79685-1 7
misconduct of Agent, its officers, employees, agents, successors, assigns or
others authorized by Agent to enter the Mortgaged Property while on the
Mortgaged Property and no indemnification obligations of Mortgagor in any Loan
Documents shall be applicable thereto.
1.11 Books and Records. The Mortgagor shall keep and maintain at all
times full, true and accurate books of accounts and records, adequate to reflect
correctly the results of the operation of the Mortgaged Property and will
furnish to Agent such financial and operating statements as may be requested by
Agent from time to time.
1.12 Environmental Matters.
(a) The following definitions are used hereafter:
(i) "Applicable Environmental Laws" shall mean any law,
statute, ordinance, rule, regulation, order or determination of any
Governmental Authority (as hereinafter defined) or any board of fire
underwriters (or other body exercising similar functions), affecting
any real or personal property owned, operated or leased by Mortgagor or
any party affiliated or related to Mortgagor, in any way pertaining to
health, safety or the environment, including, without limitation, all
applicable zoning ordinances and building codes, flood disaster laws
and health, safety and environmental laws and regulations, and further
including, without limitation, (a) the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended by the
Superfund Amendments and Reauthorization Act of 1986 (as amended from
time to time, herein referred to as "CERCLA"), (b) the Resource
Conservation and Recovery Act of 1976, as amended by the Used Oil
Recycling Act of 1980, the Solid Waste Recovery Act of 1976, as amended
by the Solid Waste Disposal Act of 1980, and the Hazardous and Solid
Waste Amendments of 1984 (as amended from time to time, herein referred
to as "RCRA"), (c) the Safe Drinking Water Act, as amended, (d) the
Toxic Substances Control Act, as amended, (e) the Clean Air Act, as
amended, (f) the Occupational Safety and Health Act of 1970, as
amended, (g) the laws, rules and regulations of any state having
jurisdiction over any real or personal property owned, operated or
leased by Mortgagor or any party affiliated or related to Mortgagor,
which relates to health, safety or the environment, as each may be
amended from time to time, and (h) any federal, state or municipal
laws, ordinances or regulations which may now or hereafter require
removal of asbestos or other Hazardous Substances (as hereinafter
defined) or impose any liability related to asbestos or other Hazardous
Substances.
(ii) "Environmental Liability" shall mean any liability, loss,
fine, penalty, charge, lien, damage, cost, or expense of any kind that
results directly or indirectly, in whole or in part (a) from the
violation of any Applicable Environmental Law, (b) from the release or
threatened release of any Hazardous Substance, (c) from removal,
remediation, or other actions in response to the release or threatened
release of any Hazardous Substance, (d) from actual or threatened
damages to natural resources, (e) from the imposition of injunctive
relief or other orders, (f) from personal injury, death, or property
damage which occurs as a result of Mortgagor's or any party affiliated
or related to Mortgagor's use, storage, handling, or the release or
threatened release of a Hazardous Substance, or (g) from any
79685-1 8
environmental investigation performed at, on, or for any real property
owned by Mortgagor or any party affiliated or related to Mortgagor.
(iii) "Governmental Authority" shall mean any nation, state,
province, commonwealth, country, parish, territory, possession or
municipality or any court or governmental department, commission,
board, bureau, agency or instrumentality of any nation or of any
province, state, commonwealth, nation, territory, possession, county,
parish or municipality, whether now or hereafter constituted or
existing.
(iv) "Hazardous Substance" shall mean any pollutant, toxic
substance, hazardous waste, compound, element or chemical that is
defined as hazardous, toxic, noxious, dangerous or infectious pursuant
to any Applicable Environmental Law or which is otherwise regulated by
any Applicable Environmental Law.
(b) Mortgagor represents and warrants to Agent and the Lenders that
neither the Mortgaged Property nor Mortgagor has any Environmental Liability or
is in violation of or subject to any existing, pending, or to the best of
Mortgagor's knowledge, threatened investigation or inquiry by any Governmental
Authority or any remedial obligations under any Applicable Environmental Law.
Mortgagor further represents and warrants that, to the best of Mortgagor's
knowledge, there are no facts, conditions or circumstances known to it which
could result in any such investigation or inquiry if such facts, conditions and
circumstances, if any, were fully disclosed to the applicable Governmental
Authority and the Mortgagor will promptly notify Agent if Mortgagor becomes
aware of any such facts, conditions, or circumstances or any such investigation
or inquiry. Mortgagor represents and warrants that it has obtained, will
continue to obtain and maintain, and will not be in default under any permits,
licenses, or similar authorizations to construct, occupy, operate or use any
buildings, improvements, fixtures or equipment in connection with the Mortgaged
Property or Improvements constructed or to be constructed by reason of any
Applicable Environmental Laws. Mortgagor represents and warrants that, to the
best of its knowledge, no Hazardous Substance has been disposed of or released
on the Mortgaged Property, and Mortgagor agrees that it will not in its use of
the Mortgaged Property dispose of or release any Hazardous Substance on the
Mortgaged Property in amounts in excess of those permitted under Applicable
Environmental Law unless remediated promptly and in accordance with all
Applicable Environmental Laws.
1.13 Hazardous Substances. Mortgagor shall indemnify Agent and the
Lenders against, and reimburse on demand for, any and all liabilities, costs and
expenses (including without limitation reasonable fees and expenses of attorneys
and other professional consultants and experts) of every kind which may be
incurred by Agent and any Lender as a result of the presence of any Hazardous
Substance about the Mortgaged Property, or the migration or release or
threatened migration or release of any Hazardous Substance on, to, from or
through the Mortgaged Property, or any act, omission or event existing or
occurring in connection with the handling, storage, removal or disposal of any
such Hazardous Substance or any violation of any Applicable Environmental Law,
or the filing or imposition of any environmental lien or claim against the
Mortgaged Property as a result of any of the above occurrences. This indemnity
shall survive repayment of the Notes.
79685-1 9
1.14 Security Agreement. This Mortgage, Security Agreement, Assignment
of Rents and Fixture Filing shall be construed as a mortgage on real property
and it shall also constitute and serve as a "Security Agreement" on personal
property within the meaning of the Arkansas Uniform Commercial Code. Mortgagor
does hereby grant, bargain, convey, assign, transfer and set over unto Agent a
security interest in all of Mortgagor's right, title and interest into and under
the Mortgaged Property to secure any and all of Mortgagor's obligations under
this Mortgage, under the Notes or any judgment as to the same. Mortgagor agrees
to execute and deliver to Agent such financing statements as Agent shall
reasonably require. Agent shall have all rights, remedies and recourses with
respect to any property that is deemed personalty afforded a secured party by
Article IX of the Arkansas Uniform Commercial Code in addition to, and not
limitation of, the other rights, remedies and recourses afforded Agent under
this Mortgage or any other document providing security for the Notes.
ARTICLE II
2.01 Events of Default. The term "Event of Default," wherever used in
the Mortgage, shall mean the occurrence of any one
(a) Failure by the Mortgagor to make any payment of interest or
principal or any other sum due under the Notes, this Mortgage, or any other Loan
Document when due, whether by acceleration or otherwise and the failure to cure
the same within ten (10) days after notification of agent; or
(b) Failure by the Mortgagor duly to observe any other covenant,
condition, or agreement of this Mortgage or any of the Loan Documents or any
other document or instrument evidencing, securing or guaranteeing the Secured
Indebtedness, which is not cured within any applicable cure period as set forth
herein or therein; or
(c) The creation or suffering to exist by the Mortgagor of any Lien on
the Mortgaged Property without the prior written consent of Agent, other than as
expressly permitted hereby; or
(d) The occurrence of an Event of Default under any Note or under the
Note Purchase Agreement.
With respect to any of the foregoing wherein a notice is required, such
Event of Default will be deemed to have occurred upon the occurrence of such
event without notice being required if Mortgagor or Agent is prevented from
giving notice by bankruptcy or other applicable law. Nothing herein shall
require notice in any item of this Section where notice is not expressly
required.
2.02 Acceleration of Maturity. If an Event of Default should occur
hereunder or an Event of Default or Default occurs under the other Loan
Documents, then notwithstanding any other action Agent may have taken to protect
its interests herein, the whole of the Secured Indebtedness shall, at the option
of the then holder of the Secured Indebtedness, be and become immediately due
and payable without notice or demand, time being of the essence.
79685-1 10
2.03 Agent's Right to Collect Rent. Subject to any grace periods
contained in Section 2.01 of this Mortgage or in the Notes, if an Event of
Default shall occur in the performance of any of the covenants, agreements or
conditions hereof or of any of the other Loan Documents or if Mortgagor shall
default in the prepayment of any of the Secured Indebtedness, Agent may, in
addition to any other remedies available at law or in equity to Agent, proceed
to collect the rent, income and profits from the Mortgaged Property, either with
or without the appointment of a receiver. Any rents, income and profits
collected by Agent prior to foreclosure of this Mortgage, less the reasonable
cost of maintaining and operating the Mortgaged Property and the reasonable cost
of collecting same, including any real estate commissions or attorney's fees and
expenses incurred, shall be credited to such portions of all the Secured
Indebtedness in such order as Agent may determine.
2.04 Right of Agent to Enter and Take Possession. Upon the occurrence
of any Event of Default, irrespective of whether (i) the right to foreclose the
mortgage has accrued to Agent, (ii) the entire Secured Indebtedness has then
been accelerated, or (iii) foreclosure proceedings have been commenced, Agent
may, without notice to or demand upon Mortgagor, take possession of the
Mortgaged Property. While in possession of the Mortgaged Property, Agent shall
have the following rights and powers:
(a) To collect the rents and manage, lease, alter and repair the
Mortgaged Property, cancel or modify existing leases, obtain insurance and in
general have all powers and rights customarily incident to absolute ownership;
and
(b) To pay out of the rents so collected any management and repair
charges, taxes, insurance, commissions, fees and all other expenses and, after
creating reasonable reserves, apply the balance (if any) on account of the
Secured Indebtedness in such order as Agent may determine.
Agent shall incur no liability for, nor shall Mortgagor assert any
claim or setoff as a result of, any action taken while Agent is in possession of
the Mortgaged Property, except only for Agent's own gross negligence or willful
misconduct. In the event no foreclosure proceedings are commenced, Agent may
remain in possession as long as there exists an Event of Default.
2.05 Agent's Power of Enforcement. If an Event of Default should occur
hereunder or under any of the other Loan Documents Agent may, either with or
without entry or taking possession as hereinabove provided or otherwise, proceed
by suit or suits at law or in equity or any other appropriate proceeding or
remedy (i) to foreclose this Mortgage and to sell, as an entirety or in separate
lots or parcels, the Mortgaged Property, as provided by law, and (ii) to pursue
any other remedy available to it, all as Agent shall deem most effectual for
such purposes. Agent shall take action either by such proceedings or by the
exercise of its powers with respect to entry or taking possession, as Agent may
determine.
2.06 Receiver. Following an Event of Default, either before or after
commencement of foreclosure but after any notice required by the Loan Agreement
or applicable law, a receiver may be appointed by the court, without regard to
the solvency or insolvency of Mortgagor, or the then value of the Mortgaged
79685-1 11
Property. The receiver shall have the power to collect the rents and income from
the Mortgaged Property during the pendency of the foreclosure sale and, in the
case of a sale and a deficiency, during the full statutory period of redemption
(if any), whether there be redemption or not. The receiver shall have all other
powers for the protection, possession, management and operation of the Mortgaged
Property which an absolute owner would have, but the net rents in the hands of
the receiver shall be applied to all the Secured Indebtedness in such order as
Agent shall determine and/or to such expenses of the receivership or foreclosure
suit as the court may direct.
2.07 Power of Sale and Judicial Foreclosure. If an Event of Default
should occur hereunder, Agent or the then holder of the indebtedness secured
hereby shall have the right to enter upon and take possession of the Mortgaged
Property and thereafter, or without taking possession, shall be entitled, at its
option, to elect the following remedies:
(a) To pursue its remedies provided by judicial proceedings at law or
in equity; or
(b) To foreclose this Mortgage and sell the Mortgaged Property pursuant
to and in compliance with Act 53 of 1987, as amended, codified as Ark. Code Ann.
ss. 18-50-101, et seq. Notice required under Act 53 of 1987 will be directed to
Mortgagor at the address supplied by Mortgagor on page 1 of this Mortgage.
Election of either paragraph (a) or (b) by Agent is not irrevocable and Agent
may at any time subsequent to commencement of the proceedings terminate such
proceedings and continue with the other procedure.
2.08 Application of Foreclosure Proceeds. The proceeds of any such sale
referred to in Section 2.07 shall be applied: (a) to the expenses incurred in
making the sale and in all prior efforts to effect collection of the
indebtedness secured hereby, including reasonable attorneys' fees and expenses
for such services as may be, or have been, performed in any one or more of (i)
the foreclosure of this Mortgage, or (ii) the collection of the Secured
Indebtedness, or (iii) the pursuit of any efforts theretofore directed to that
end, including, but without limitation to, the defense of any proceedings
instituted by the Mortgagor, or anyone liable for said indebtedness, or
interested in the Mortgaged Property, to prevent or delay, by any means, the
exercise of said power of sale or the foreclosure of this Mortgage; (b) to the
payment of whatever sum or sums Agent may have paid out or become liable to pay
in accordance with the provisions of this Mortgage, together with interest
thereon at the lesser of the Maximum Lawful Rate or ten percent (10%) per annum;
(c) to the payment and satisfaction of the Secured Indebtedness; in such order
of application to the items of indebtedness referred to in clauses (b) and (c)
as Agent shall determine; and (d) the balance, if any, shall be paid over to
Mortgagor, or Mortgagor's successors or assigns. In any event, the purchaser
under the foreclosure sale, as provided herein, shall be under no obligation to
see to the proper application of the purchase money.
2.09 Delay or Omission No Waiver. No delay or omission of Agent to
exercise any option herein given to declare the maturity of the Secured
Indebtedness shall be taken or construed as a waiver of its right to exercise
such option or to declare such maturity by reason of any past, present or future
default on the part of Mortgagor; and the procurement of insurance or the
79685-1 12
payment of taxes or other liens, debts or charges by Agent, or the making of any
repairs or the performance of any other agreement, condition or covenant of this
Mortgage shall not be taken or construed as a waiver of its right to any
remedies to which Agent may be entitled including, without limitation to, the
right to declare the maturity of the Secured Indebtedness by reason of the
failure of Mortgagor to procure such insurance or to pay such taxes, debts,
liens or charges or to perform any such other obligations.
2.10 Remedies Cumulative. No right, power, or remedy conferred upon or
reserved to Agent by this Mortgage is intended to be exclusive of any other
right, power or remedy given hereunder or under the other Loan Documents or now
or hereafter existing as law or in equity or by statute, but each every such
right, power and remedy shall be cumulative and concurrent and shall be in
addition to any other right, power and remedy given hereunder or in any of the
other Loan Documents or hereafter existing at law or in equity or by statute.
2.11 Multiple Sales. Agent may conduct any number of sales from time to
time. The power of sale or judicial remedies allowed and set forth in Section
2.07 hereof shall not be exhausted by any one or more such sales as to any part
of the Mortgaged Property which shall not have been sold, nor by any sale which
is not completed or is defective, until the Secured Indebtedness shall have been
paid in full. Said sales may be as a whole or in part or parcels and Mortgagor
hereby waives its right to direct the order in which the Mortgaged Property or
any parcel that is part thereof is sold. Any sale may be postponed or adjourned
by public announcement at the time and place appointed for such sale.
2.12 Additional Provisions as to Remedies In the event that Agent shall
have proceeded to enforce any right or remedy hereunder by foreclosure, sale,
entry or otherwise, and such proceeding shall be discontinued, abandoned or
determined adversely for any reason, then Mortgagor and Agent shall be restored
to their former positions and rights hereunder with respect to the Mortgaged
Property, subject to the lien hereof. Notwithstanding anything contained herein
to the contrary, Agent shall have all rights, remedies and recourses granted in
this Mortgage and the other Loan Documents and available at law and equity and
the same, to the extent allowed at law or in equity, (i) are intended to be and
shall be nonexclusive, (ii) shall be cumulative and concurrent, (iii) may be
pursued separately, successively or concurrently against Mortgagor; and (iv) the
exercise thereof by Agent shall in no event be construed as an election of
remedy, or a waiver or release of any right, remedy or recourse as to the
Mortgaged Property.
ARTICLE III
MISCELLANEOUS
3.01 Notices. Whenever notice may appropriately be given under this
Mortgage, such notice shall be given as set forth in the Note Purchase
Agreement.
3.02 Headings, etc. The headings of the Articles and sections of this
Mortgage are for convenience of reference only, are not to be considered a part
hereof, and shall not limit or otherwise affect any of the terms hereof.
Singular or plural words used herein to designate the Mortgagor shall be
construed to refer to the maker or makers of this Mortgage, whether one or more
79685-1 13
persons or a corporation, and all covenants and agreements herein contained
shall bind the successors and assigns in title of Mortgagor, and every option,
right and privilege herein reserved or secured to Agent shall inure to the
benefit of its successors and assigns. All references herein to "Mortgagor,"
"Agent," and "Lender" shall include all such successors and assigns in title of
Mortgagor and successors and assigns of Agent and each Lender.
3.03 Severability; Rights and Remedies Cumulative. The unenforceability
or invalidity of any provision or provisions of this Mortgage shall not render
any other provision or provisions herein contained unenforceable or invalid. If
any application of any term, restriction or covenant to any person or
circumstance is deemed unenforceable or invalid, the application of such term,
restriction, or covenant to any other person or circumstances shall remain
unaffected to the extent permitted by law. All rights or remedies of Agent
hereunder are cumulative and not alternative, and are in addition to those
provided by law.
3.04 Governing Law. The provisions of this Mortgage regarding the
creation, perfection and enforcement of the liens and security interests herein
granted shall be governed by and construed under the laws of the state in which
the Mortgaged Property is located. All other provisions of this Mortgage shall
be governed by the laws of the State of Florida, without regard to conflicts of
laws principles.
3.05 Time of the Essence. Time is of the essence with respect to each
and every covenant and obligation of Mortgagor under this Mortgage, the Notes,
and the other Loan Documents.
3.06 Release of Appraisement and Redemption Rights. The Mortgagor
releases all right of appraisement hereunder and also releases unto Agent and
the Lenders all right of redemption under the laws of Arkansas, including
particularly all rights of redemption under Ark. Code Ann. ss. 18-49-106.
3.07 Effective as Financing Statement. The Mortgage shall be effective
as a financing statement filed as a fixture filing with respect to all fixtures
included within the Mortgaged Property and is to be filed for record in the real
estate records of each city or county where the Mortgaged Property (including
said fixtures) is situated.
3.08 Entire Agreement; Further Assurances. The Notes and Loan Documents
constitute the entire understanding and agreement between Mortgagor, Agent, and
the Lenders with respect to the transactions arising in connection with the
indebtedness secured hereby and supersede all prior written or oral
understandings and agreements between Mortgagor, Agent, and the Lenders with
respect to the matters addressed in the Loan Documents. Mortgagor will, promptly
on Agent's request, execute, deliver, procure and/or file such further
documents, and take such further action as is necessary, desirable or proper to
carry out more effectively the purposes of the Loan Documents, to correct any
defect in the Loan Documents, or to more fully identify and subject to the
Mortgage any property intended to be covered by the Mortgage.
79685-1 14
3.09 Partial Releases.
(a) If the Mortgagor sells a portion of the Mortgaged Property in an
arms-length sale at a price not less than fair market value, Mortgagor will be
entitled to request and receive a release of the lien created by this Mortgage
on such portion of the Mortgaged Property upon satisfaction of the following
conditions:
(i) Each release requested hereunder must result in an
aggregate prepayment to the Lenders of at least $1,000,000.00.
(ii) No Event of Default hereunder shall have occurred and be
continuing.
(iii) (A) For the first year following the date of this
Mortgage, Mortgagor shall pay the Lenders, on a pro rata basis a
redemption release amount equal to the greater of 102% of the net sales
price;
(B) For the second year following the date of this
Mortgage, Mortgagor shall pay the Lenders, on a pro rata
basis, a redemption release amount equal to the greater of
101% of the net sales price; and
(C) For the third year following the date of this
Mortgage, Mortgagor shall pay the Lenders, on a pro rata
basis, a redemption release amount equal to the greater of
100% of the net sales price.
(iv) Mortgagor will pay all costs and expenses incurred in
connection with each release including recording fees, premiums for
title insurance endorsements, Agent's attorneys fees and expenses, and
escrow and closing fees.
(v) For purposes of this Section 3.09, the term "net sales
price" means the sales price of any portion of the Mortgaged Property
sold, less any real estate commissions or referral fees payable to
unrelated third parties arising from such sale, title insurance
premiums, tax stamps, recording fees, closing costs, pro-rated real
estate taxes and similar and related costs of closing such sale.
(b) At least fifteen (15) days prior to the scheduled funding of the
release price, Mortgagor shall deliver a written request for the release to
Agent containing a description of the portion of the Mortgaged Property to be
released and shall request that Agent deposit Agent's partial release with a
title insurance company selected by Mortgagor and reasonably acceptable to
Agent. At least one business day prior to the scheduled funding of the release
price, Agent shall deposit with the title insurance company Agent's partial
release together with instructions authorizing the title insurance company to
issue the release upon receipt of the applicable pro rata portion of the release
price by each Lender.
(c) No release by Agent will affect any of the Mortgagor's obligations
under any of the Loan Documents except to the extent that payment on the Notes
is actually received by the applicable Lender. Any payments made by Mortgagor to
79685-1 15
the Lenders for the release will be credited against the Notes only on the
actual receipt of the funds by the applicable Lender; checks received by a
Lender will not be considered as payment until collected.
3.10 Mortgagee as Agent; Successor Agents.
(a) Agent has been appointed to act as agent hereunder by the Lenders.
Agent shall have the right hereunder to make demands, to give notices, to
exercise or refrain from exercising any rights, and to take or refrain from
taking any action (including, without limitation, the release or substitution of
the Mortgaged Property) in accordance with the terms of any related agency
agreement among Agent and the Lenders (collectively, as amended, supplemented or
otherwise modified or replaced from time to time, the "Agency Documents") and
this Mortgage. Mortgagor and all other persons shall be entitled to rely on
releases, waivers, consents, approvals, notifications and other acts of Agent,
without inquiry into the existence of required consents or approvals of the
Lenders therefor.
(b) The mortgagee hereunder shall at all times be the same person that
is designated as the agent under the Agency Documents. Written notice of
resignation by Agent pursuant to the Agency Documents shall also constitute
notice of resignation as mortgagee under this Mortgage. Removal of Agent
pursuant to any provision of the Agency Documents shall also constitute removal
as mortgagee under this Mortgage. Appointment of a successor agent pursuant to
the Agency Documents shall also constitute appointment of a successor mortgagee
under this Mortgage. Upon the acceptance of any appointment as agent by a
successor agent under the Agency Documents, that successor agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring or removed mortgagee under this Mortgage, and the retiring or
removed mortgagee shall promptly (i) assign and transfer to such successor
mortgagee all of its right, title and interest in and to this Mortgage and the
Mortgaged Property, and (ii) execute and deliver to such successor mortgagee
such assignments and amendments and take such other actions, as may be necessary
or appropriate in connection with the assignment to such successor mortgagee of
the liens and security interests created under this Mortgage. After any retired
or removed agent's resignation or removal hereunder as mortgagee, the provisions
of this Mortgage and the Agency Documents shall inure to its benefit as to any
actions taken or omitted to be taken by it under this Mortgage while it was the
mortgagee hereunder.
[The remainder of this page is left blank intentionally.]
79685-1 16
IN WITNESS WHEREOF, Mortgagor has caused this instrument to be executed
as of the date set forth above.
MORTGAGOR:
Capitol Development of Arkansas, Inc., an
Arkansas corporation
By: /s/ Michael G. Todd
Its: President
79685-1 17
ACKNOWLEDGMENT
STATE OF Arkansas
) ss.
COUNTY OF Pulaski
On this day before me, a Notary Public, duly commissioned, qualified,
and acting within and for the State and County aforesaid, appeared in person,
Michael G. Todd, who stated that he was an authorized officer of Capitol
Development of Arkansas, Inc., an Arkansas corporation, and was duly authorized
in his capacity to execute the foregoing instrument for and in the name and
behalf of said company; and further stated that he had so signed, executed and
delivered said instrument for the consideration, uses and purposes therein
mentioned and set forth.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal
this 11th day of September 2003.
---------------------------
Notary Public
My Commission Expires:
- ---------------------
79685-1 18
EXHIBIT A
Lands lying in Section 29 and a part of the East 1/2 of Section 30,
Township 3 North, Range 13 West, Pulaski County, Arkansas and more particularly
described as follows:
Commencing at the Northwest Corner of said Section 29; thence North 90
degrees 00 minutes 00 seconds East 2564.28 feet; thence South 00 degrees 00
minutes 00 seconds West 611.08 feet to the point of beginning which is also on
the south right of way of Odom Boulevard; thence leaving the said South right of
way line of Odom Boulevard along a 143.2394 degree curve to the right 61.20 feet
to a point having a chord bearing and distance of South 81 degrees 31 minutes 11
seconds East 55.40 feet which is also on the west right of way of Naylor Drive;
thence continue along said right of way line South 37 degrees 41 minutes 32
seconds East 30.45 feet; thence along a 5.6169 degree curve to the right 358.75
feet to a point having a chord bearing and distance of South 27 degrees 37
minutes 01 seconds East 356.90 feet; thence South 17 degrees 32 minutes 30
seconds East 251.53 feet; thence along a 6.1069 degree curve to the left 498.81
feet to a point having a chord bearing and distance of South 32 degrees 46
minutes 21 seconds East 492.96 feet; thence South 48 degrees 00 minutes 13
seconds East 642.29 feet; thence along a 5.7569 degree curve to the right 387.16
feet to a point having a chord bearing and distance of South 36 degrees 51
minutes 33 seconds East 384.72 feet; thence South 25 degrees 42 minutes 53
seconds East 31.71 feet; thence leaving said right of way along a 229.1831
degree curve to the right 38.46 feet to a point having a chord bearing and
distance of South 18 degrees 21 minutes 48 seconds West 34.78 feet which is also
on the west right of way of Millwood Circle; thence continue along said right of
way line South 62 degrees 26 minutes 30 seconds West 22.62 feet; thence along a
5.7103 degree curve to the left 1492.75 feet to a point having a chord bearing
and distance of South 16 degrees 40 minutes 41 seconds Wet 1358.84 feet; thence
South 25 degrees 56 minutes 35 seconds East 441.69 feet; thence along a 4.2642
degree curve to the right 385.98 feet to a point having a chord bearing and
distance of South 17 degrees 42 minutes 50 seconds East 384.65 feet; thence
leaving said west right of way South 84 degrees 03 minutes 51 seconds West
170.32 feet; thence North 73 degrees 20 minutes 45 seconds West 1097.68 feet;
thence South 33 degrees 01 minutes 16 seconds West 254.89 feet; thence South 45
degrees 24 minutes 03 seconds West 349.34 feet; thence South 58 degrees 31
minutes 12 seconds West 399.77 feet; thence North 77 degrees 45 minutes 58
seconds West 156.73 feet to a point which is also on the east right of way of
Odom Boulevard; thence North 77 degrees 45 minutes 58 seconds West 62.24 feet;
thence along the centerline of proposed Odom Boulevard North 11 degrees 57
minutes 24 seconds East 8.19 feet; thence along a 20.8347 degree curve to the
left 266.72 feet to a point having a chord bearing and distance of North 15
degrees 49 minutes 44 seconds West 256.39 feet; thence North 43 degrees 36
minutes 53 seconds West 729.52 feet; thence along a 9.5492 degree curve to the
left 221.93 feet to a point having a chord bearing and distance of North 54
degrees 12 minutes 39 seconds West 220.67 feet; thence North 64 degrees 48
minutes 26 seconds West 622.59 feet; thence along a 6.3661 degree curve to the
left 1607.78 feet to a point having a chord bearing and distance of North 13
degrees 37 minutes 48 seconds West 1402.36 feet; thence North 37 degrees 32
minutes 49 seconds East 1031.88 feet; thence along a 3.3661 degree curve to the
right 517.56 feet to a point having a chord bearing and distance of North 54
degrees 01 minutes 17 seconds East 510.46 feet; thence North 70 degrees 29
minutes 45 seconds East 406.83 feet; thence leaving said road centerline South
19 degrees 30 minutes 15 seconds East 60.00 feet to a point on the east right of
way line of Odom Boulevard; thence continue along said right of way line North
70 degrees 29 minutes 45 seconds East 914.54 feet; thence along a 4.5558 degree
curve to the left 347.84 feet to a point having a chord bearing and distance of
North 62 degrees 34 minutes 34 seconds East 346.73 feet to the point of
beginning containing 250.134 acres more or less.
79685-1 19