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HomeMy WebLinkAbout21-07 RESOLUTIONRESOLUTION NO. 21-07 Or A RESOLUTION TO AUTHORIZE MAYOR COODY TO SIGN A LEASEHOLD MORTGAGE AND SECURITY AGREEMENT FOR FAYETTEVILLE AS A LANDLORD SO THAT T SEVEN HILLS HOMELESS SHELTER,' INC: CAN BORROW $200,000.00 FROM REGIONS BANK BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE, ARKANSAS: Section 1: That the City Council of the City of Fayetteville, Arkansas hereby authorizes Mayor Dan Coody to sign a Leasehold Mortgage and Security Agreement (attached as Exhibit "A") for Fayetteville as a landlord so that Seven Hills Homeless Shelter, Inc. can borrow $200,000.00 from Regions Bank PASSED and APPROVED this 6th day of February, 2007. APPROVED: By /Staa DAN COOD , Mayor ATTEST: �By:tGV SONDRA SMITH, City Clerk/Treasurer ��`�"RK/TRp,'...,, o .4,9 ;' :FAYETTEVILLE: :yP•9'5)kANS:�' �. THIS INSTRUMENT PREPARED BY AND UPON RECORDING SHOULD BE RETURNED TO: J. Keith Windle, Esq. Bradley Arant Rose & White LLP One Federal Place 1819 Fifth Avenue North Birmingham, AL 35203-2119 STATE OF ARKANSAS ) )ss. COUNTY OF WASHINGTON ) • LEASEHOLD MORTGAGE AND SECURITY AGREEMENT THIS LEASEHOLD MORTGAGE AND SECURITY AGREEMENT (this "Mortgage"), dated this the 4 fh day of [ &loru,an/ ], 2007 between SEVEN HILLS HOMELESS SHELTER, INC., an Arkansas corporation whose address is P.O. Box 474, Fayetteville, Arkansas 72702 (the "Mortgagor"), and REGIONS BANK, an Alabama banking corporation, whose address is 3000 Galleria Tower, Suite 1600, Birmingham, Alabama 35244 (the "Mortgagee"). RECITALS: A. In connection with the development and rehabilitation by Mortgagor of a certain residential apartment project located in Washington County, Arkansas, Federal Home Loan Bank of Atlanta ("FHLB") has agreed to fund its AHP Project No. 05A0495 in connection with the FHLB's Affordable Housing Program (the "Program"), whereby the sum of $200,000.00 (the "Direct Subsidy Funds") will be loaned to Seven Hills Homeless Center, a [ ] (the "Sponsor") and subsequently loaned by Sponsor to Mortgagor to fund certain rehabilitation costs pursuant to a FHLB -approved application by Mortgagor and all FHLB approved amendments thereto (collectively, the "Application"). in<lA4CG B. Mortgagor has leased the Real Property (hereinafter defined) pursuant to that certain lease between Mortgagor and the City of Fayetteville, Arkansas, an Arkansas Corporation, whose address is [ ), (the "Landlord") dated December 1, 2004 that will terminate on November 30, 2103, and filed [or "a memorandum of which is filed") in the real property records of Washington County, Arkansas as Instrument No. (the "Lease"). The Lease includes all extensions, renewals, modifications and replacements. Landlord's acknowledgement and consent to this Mortgage are required. C. Mortgagor and Sponsor have agreed to comply with the terms and conditions of' that certain Affordable Housing Program Agreement (Rental Project) dated as of June 23, 2005 by and between FHLB, the Mortgagee, the Sponsor, and the Mortgagor (the "AHP Agreement"). D. Mortgagor and Mortgagee desire to enter into this Mortgage in order to provide security for Mortgagee's performance of certain obligation set forth in the AHP Agreement and to require the Mortgagor and the Property (as hereinafter defined) to comply with the requirements of the Program. NOW, THEREFORE, in consideration of the Recitals and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, to secure to lender: (a) the repayment of that certain Promissory Note of even date herewith in the amount of $200,000.00, including future loans and advances thereunder, and all renewals, extensions, and modifications thereof and any and all other wntten obligations with respect thereto (the "Note"); (b) the payment of all other sums with interest thereon advanced in accordance herewith to protect the security of this Mortgage; (c) the performance of the covenants and agreements of Mortgagor herein contained; and (d) the payment of all future and additional indebtedness, direct or indirect, created after the date of this Mortgage, which may be owing by Mortgagor to Mortgagee at any time prior to the payment in full with interest of the Indebtedness (hereinafter defined) or the foreclosure of this Mortgage (the event occurring first to be controlling), such additional indebtedness to be secured hereby regardless of whether it shall be predicated upon future loans or advances hereafter made by Mortgagee or obligations hereafter acquired by Mortgagee through assignment or subrogation or otherwise, or shall represent indirect obligations (created after the date of this Mortgage) based upon any endorsements, guaranties or suretyship; AND IT IS AGREED THAT THIS MORTGAGE SHALL STAND AS SECURITY FOR ALL SUCH FUTURE AND ADDITIONAL INDEBTEDNESS WHETHER IT BE INCURRED FOR ANY BUSINESS PURPOSE THAT WAS RELATED OR WHOLLY UNRELATED TO THE PURPOSE OF THE INDEBTEDNESS, OR WHETHER IT WAS INCURRED FOR SOME PERSONAL OR NONBUSINESS PURPOSE, OR FOR ANY OTHER PURPOSE RELATED OR UNRELATED, OR SIMILAR OR DISSIMILAR, TO THE PURPOSE OF THE INDEBTEDNESS; Mortgagor does hereby grant, bargain, sell, convey, and deliver to Mortgagee, and its successors and assigns, with power of sale, a security interest in and to all of Mortgagor's rights, title and interest in the Lease and Mortgagor's leasehold estate in and to that certain real property situate, lying, and being in Washington County, Arkansas (the "Real Property") described as follows, to -wit: A part of the Northwest Quarter (NE/4) of the Northeast Quarter (NE/4) of Section Twenty -Two (22), Township Sixteen (16) North, Range Thirty (30) West of the 5th Principal Mendian, being more particularly described herewith as follows: Beginning at a point South 02°47'37" East 44.29 feet from the Northwest corner of the NE/4 of the NE/4 of said Section 22, said point being on the West 40 acre tract line and thence South 87°50'21" East 155.34 feet; thence South 87°28'1V' East 60.00 feet; thence South 01°28' 1" East 65.00 feet; thence South 02°47'36" West 396:89 -feet; thence North 87°50'21" West 239:38 feet -to -the -west „ «4..44 line of the NE/4 of NE/4 of said Section 22; thence along said West line North 02°47'36" East 720.00 feet to the Point of Beginning containing 3.51. acres, more or Tess, being subject to the rights of way and easements of record. SUBJECT, HOWEVER, to easements, covenants, conditions, restrictions, building setback lines, and prior oil, gas, and other mineral reservations, conveyances, and/or leases heretofore made and presently of record, if any, in the real estate recording office respecting the Real Property hereinabove described. TO HAVE AND TO HOLD unto Mortgagee and Mortgagee's successors and assigns, forever. TOGETHER WITH all of Mortgagor's right, title and interest in all existing or subsequently erected or affixed buildings,. Improvements,. and fixtures; all easements, rights of way, and appurtenances, all water, water rights, watercourses, and ditch nghts (including stock in utilities with ditch or imgation rights); and all other rights, royalties, and profits relating to the Real Property, including, without limitation, all minerals, oil, gas, geothermal, and similar matters; TOGETHER WITH any and all amendments and supplements to the Lease consented to by Mortgagee, and any and all renewals or extensions thereof consented to by Mortgagee, together with all Mortgagor's right, title, interest, powers, privilege and remedies of every kind and description in, to, under or accruing to Mortgagor by virtue of said Lease, including without limitation all right to extend the term of the Lease, development' rights, right of first refusal and purchase options related to the Real Property, and such other right, title and interest which Mortgagor may now or hereafter acquire in and to the Real Property. In addition to the foregoing, Mortgagor presently assigns to Mortgagee all of Mortgagor's right, title, and' interest in and` to all Leases of the Property and all Rents from the Property. In addition, Mortgagor also grants to Mortgagee a Uniform Commercial Code security interest in the Personal Property and the Rents. The rights, title and interests granted, conveyed and mortgaged by Mortgagor to Mortgagee pursuant to this Mortgage are hereinafter collectively referredto as the "Mortgaged Property". PROVIDED, HOWEVER, that these presents are upon the condition that, if: (a) the Mortgagor shall pay or cause to be paid to the Mortgagee all of Mortgagor's obligations under the Note, at the times and in the manner stipulated therein and herein, all without any deduction or credit for taxes or other similar charges paid by Mortgagor, and any renewal; extension or modification thereof; and- any and' all other written obligations with respect thereto; and (b) Mortgagor shall keep, perform, and observe all of its covenants and promises in this Mortgage expressed to be kept, ,performed and observed by and on the part of Mortgagor, all without fraud or delay; then this Mortgage, and all the properties, interest and rights herein granted, bargained, and sold shall cease, terminate and be void, but shall otherwise remain in full force and effect. WARRANTIES AND REPRESENTATIONS. Landlord holds goodand marketable title of record to the Property in fee simple Landlord warrants that Mortgagor has complied with all obligations owed Landlord by Mortgagor including the payment of all rent when due Landlord and Mortgagor warrant that 1I1C2Al.CC ') neither is in default under the Lease and that they will comply with all provisions of the Lease and this Mortgage until all debts under the Note are fully paid and this Mortgage is no longer in effect. Landlord and Mortgagor have full power and lawful authority to enter into this Mortgage. The execution and delivery of this Mortgage will not violate any agreement governing Mortgagor or Landlord or to which either is a party. Mortgagor shall and will warrant and forever defend the title thereto unto Mortgagee, its successors and assigns, against the lawful claims of all persons whomsoever. DEFINITIONS. The following words shall have the following meanings when used in this Mortgage. Terms not otherwise defined in this Mortgage shall have the meanings attributed to such terms in the Uniform Commercial Code. All references to dollar amounts shall mean amounts in lawful money of the' United States of America. Improvements. The word "Improvements" means and includes, without limitation, all existing and future improvements, buildings, structures, mobile homes affixed on the Real Property, facilities, additions, replacements, and other construction on the Real Property. Leases. The word "Leases" means all present and future Leases pertaining to the Mortgaged Property entered into by Mortgagor as lessor. Personal Property. The words "Personal Property" mean all equipment, fixtures, and other articles of personal property now, or hereafter owned by Mortgagor and now or hereafter attached or affixed to the Real Property; together with all accessions, parts, and additions to, all replacements of, and all substitutions for any of such property; and together with all proceeds (including, without limitation, all insurance proceeds and refunds of premiums) from any sale or other disposition of the Property. Property. The word "Property" means collectively the Real Property and the Personal Property. Real Property. The words "Real Property" mean the real property hereinabove described and mortgaged hereby. Rents. The word "Rents" means all present and future rents, revenues, income, issues, royalties, profits, and other benefits derived by Mortgagor from the Property. Mortgagor and Landlord covenant and agree with Mortgagee as follows: • 1. PAYMENT AND PERFORMANCE. Except as otherwise provided in this Mortgage, Mortgagor shall pay or cause to be paid to Mortgagee all amounts secured by this Mortgage as they become due, and shall strictly perform all of Mortgagor's obligations under this Mortgage. 2. LANDLORD CONSENT. Landlord hereby consents to and acknowledges the assignment of all of Mortgagor's rights title and interest in the Lease and the Property. If an Event of Default (as hereinafter defined) occurs, Landlord will not withhold any consent necessary for Lender to exercise any available remedy. 3. AHP RESTRICTIONS. a. Occupancy Restrictions During 15 -Year AHP Period. The rental units comprising the Property, or the applicable portion thereof shall be and remain occupied by and affordable for households with incomes at or below the levels committed to be served in the Application for the duration of the 15 -year AHP retention period (as contemplated by the AHP Agreement), which extends for III52A.CC 7 15 years (the "AHP Retention Period") following Project Completion, as hereinafter defined. The Mortgagor further agrees to comply with all terns, conditions, obligations and agreements set forth in the AHP Agreement. The income eligibility and affordability restrictions set forth in this Paragraph 3(a) and in the AHP Agreement shall terminate upon any foreclosure of this Mortgage and deed in lieu of foreclosure thereof or any similar transaction. As used herein, the term "Project Completion" means that (i) the construction of the Project is 100% complete, (ii) at least 75% of the rental units comprising the Project shall have been leased, (iii) a certificate of occupancy (or equivalent document) shall have been issued for the Project by the appropriate governmental authonty, and (iv) all Direct Subsidy Funds shall have been disbursed to the Mortgagor for use in the Project. b. Prohibition on Sale or Refinancing. In the case of a sale or refinancing of the Real Property prior to the end of the AHP Retention Period, (i) Mortgagor shall provide Mortgagee and FHLB wntten notice of such sale or refinancing pnor to the consummation of such sale or refinancing and (ii) an amount equal to the full amount of the Direct Subsidy Funds (as evidenced by the Note) shall be immediately repaid to Mortgagee, unless the Real Property continues to be subject to a deed restriction or other legally enforceable retention agreement or mechanism incorporating the income eligibility and affordability restrictions committed to in the Application for the remainder of the AHP Retention Period. 4. MAINTENANCE OF THE PROPERTY. Mortgagor shall maintain the Property in tenantable condition and promptly perforin all repairs, replacements, and maintenance necessary to preserve its value. 5. TAXES AND LIENS. Mortgagor shall pay, when due (and in all events prior to delinquency), all taxes, payroll taxes, special taxes, assessments, water charges and sewer service charges levied against or on account of the Property, and shall pay, when due, all claims for work done on or for services rendered or material furnished to the Property. Mortgagor shall maintain the Property free of all liens having priority over or equal to the interest of Mortgagee under this Mortgage, except for the lien of taxes and assessments not due; but Mortgagor may withhold payment of any tax, assessment, or claim in connection with a good faith dispute over the obligation to pay, so long as Mortgagee's interest in the Property is not jeopardized. 6. PROPERTY DAMAGE INSURANCE. Mortgagor shall procure and maintain policies of fire insurance with standard extended coverage endorsements for the full insurable value covering all Improvements of the Real Property in an amount sufficient to avoid application of any coinsurance clause, and with a standard mortgagee clause in favor of Mortgagee. Policies shall be written by such insurance companies and in such form as may be reasonably acceptable to Mortgagee. Mortgagor shall deliver to Mortgagee certificates of coverage from each insurer containing a stipulation that coverage will not be cancelled or diminished without a minimum of ten (10) days pnor written notice to Mortgagee and not containing any disclaimer of the insurer's liability for failure to give such notice. Should the Real Property at any time become located in an area designated by the Director of the Federal Emergency Management Agency as a special flood hazard area, Mortgagor agrees to obtain and maintain Federal Flood Insurance for the full insurable value thereof, up to the maximum policy limits set under the National Flood Insurance Program, or as otherwise required by Mortgagee, and to maintain such insurance for the tern of the loans. 7. ENVIRONMENTAL LAWS AND HAZARDOUS SUBSTANCES. Mortgagor and Landlord further represent warrant and covenant as follows: 1l1GRALAC a. No Hazardous Materials (as hereinafter defined) have been, are, or will be while any part of the indebtedness secured by this Mortgage remains unpaid, contained in, treated, stored, handled, located on, discharged from, or disposed of on, or constitute a part of, the Property As used herein, the tern "Hazardous Materials" includes without limitation,. any asbestos, urea formaldehyde foam insulation, flammable explosives, radioactive matenals, hazardous materials, hazardous wastes, hazardous or toxic substances, or related or unrelated substances or matenals defined, regulated, controlled, limited or prohibited in the Comprehensive Environmental Response Compensation and Liability Act of 1980 (CERCLA), as amended (42 U.S.C. Sections 9601, et seq.), the Hazardous Materials Transportation Act, as amended (49 U.S C. Sections 1801, et seq.), the Resource Conservation and Recovery Act (RCRA), as amended (42 U.S.C. Sections 6901, et seq.), the Clean Water Act, as amended (33 U.S.C. Sections 1251, et seq.), the Clean Air Act, as amended (42 U.S.C. Sections 7401, et seq.), the Toxic Substances Control Act, as amended (15 U.S.C. Sections 2601, et seq ), and in the rules and regulations adopted and publications promulgated pursuant thereto, and in the rules and regulations of the Occupational Safety and Health Administration (OSHA) pertaimng to occupational exposure to asbestos, as amended, or in any other federal, state or local environmental law, ordinance, rule, or regulation now or hereafter in effect; b. No underground storage tanks, private dumps or open wells, whether in use or not in use, are located in, on or under any part of the Property, and no such tank, dump or well shall be added unless Mortgagee first consents in writing; All of the Property complies and will comply in every respect with all applicable environmental laws, rules, regulations, and court or administrative orders, and Mortgagor will regularly inspect the Property and monitor the activities and operations on the Property to ensure such compliance; d. There are no pending claims or threats of claims by pnvate or governmental or admimstrative authorities relating to environmental impairment, conditions, or regulatory requirements with respect to the Property; e. Mortgagor and Landlord, at Mortgagor's expense, promptly upon the wntten request of Mortgagee from time to time, shall provide Mortgagee with an environmental audit report, or an update of such report, all in scope, form and content satisfactory to Mortgagee; f. Mortgagor and Landlord will permit or cause any tenant to permit Mortgagee or Mortgagee's agent to inspect the Property and review all records at any reasonable time to determine (i) the existence, location and nature of any Hazardous Materials on, under or about the Property; (ii) the existence, location, nature and magnitude of any Hazardous Materials that have been released on, under or about the Property; or (iii) whether or not Landlord, Mortgagor or any tenant are in compliance with applicable environmental laws; 1/141ACKC In the event of any spill or disposal of Hazardous Materials on the Property, whether or not the same originates or emanates from the Property or any such contiguous real estate, and/or if Mortgagor or Landlord shall fail to comply with any environmental law or regulation, Mortgagee may, at its election, but without the obligation so to do, give such notices as may be required by law and/or cause any remedial work that may be necessary to be performed at the Property and/or take any and all other actions as Mortgagee shall deem necessary or advisable in order to remedy said spill or disposal of Hazardous Materials or cure said failure of compliance and any amounts paid as a result thereof, together with interest thereon at the default rate (as specified in the Note) from the date of payment by Mortgagee, shall be immediately due and payable by Mortgagor to Mortgagee and until paid shall be added to and become a part of the indebtedness secured hereby and shall have the benefit of the lien hereby created as a part thereof; h. Mortgagor hereby agrees to indemnify and hold Mortgagee harmless from all loss, cost, damage, claim and expense incurred by Mortgagee on account of Q) the violation of any representation, warranty or covenant set forth in this Paragraph 6, (ii) Mortgagor's failure to perform any obligations of this Paragraph 6, (iii) Mortgagor's or the Property's failure to fully comply with all environmental laws, rules and regulations, or with all occupational health and safety laws, rules and regulations, and (iv) any other matter related to environmental conditions on, under or affecting the Property. This indemnification shall survive payment of the indebtedness secured by this Mortgage, the exercise of any right or remedy hereunder or under any other loan document securing or evidencing said indebtedness, any subsequent sale or transfer of the Property, and all similar or related events or occurrences. Mortgagor shall give immediate oral and wntten notice to Mortgagee of its receipt of any notice of a violation of any law, rule or regulation covered by this Paragraph 6 or of any notice or other claim relating to the environmental condition of the Property, or of its discovery of any matter which would make the representations, warranties and/or covenants herein to be inaccurate or misleading in any respect; and i. Notwithstanding any of the language contained in this Mortgage to the contrary, the terms of this section will survive any foreclosure or satisfaction of this Mortgage, regardless of any passage of title to Mortgagee or any disposition by Mortgagee of any or all of the Property. 8. EXPENDITURES BY AGENT. If Mortgagor fails to comply with any provision of this Mortgage, or if any action or proceeding is commenced that would matenally affect Mortgagee's interests in the Property, Mortgagee on Mortgagor's behalf may, but shall not be required to, take any action that Mortgagee deems appropriate. Any amount that Mortgagee expends in so doing will bear interest at the lesser of (i) the rate of ten percent (10%) per annum, or (ii) the maximum rate permitted by applicable law. All such expenses, at Mortgagee's option, will be payable on demand This Mortgage also will secure payment of these amounts. The rights provided for in this paragraph shall be in addition to any other rights or any remedies to which Mortgagee may be entitled on account of the default Any such action by Mortgagee shall not be construed as curing the default so as to bar Mortgagee from any remedy that it otherwise would have had. 9. SECURITY AGREEMENT; FINANCING STATEMENTS. The following provisions relating to this Mortgage as a secunty agreement are a part of this Mortgage. a. Security Agreement. This instrument shall constitute a security agreement to the extent any of the Property constitutes fixtures or other personal property, and Mortgagee shall have all of the rights of a secured party under the Uniform Commercial Code as amended from time to time. b. Security Interest. Upon request by Mortgagee, Mortgagor shall execute financing statements and take whatever other action is requested by Mortgagee to perfect and continue Mortgagee's security interest in the Rents and Personal Property In addition to recording this Mortgage in the real property records, Mortgagee may, at any time and without further authorization from 1/1534665.2 7 Mortgagor, file executed counterparts, copies or reproductions of this Mortgage as a financing statement and also file financing statements Mortgagor shall reimburse Mortgagee for all expenses incurred in perfecting or continuing this security interest. Upon default, Mortgagor shall assemble the Personal Property in a manner and at a place reasonably convenient to Mortgagor and Mortgagee and make it available to Mortgagee within three (3) days after receipt of written demand from Mortgagee. c. Addresses. The mailing addresses of Landlord, Mortgagor (debtor) and Mortgagee (secured party), from which information concerning the security interest granted by this Mortgage may be obtained (each as required by the Uniform Commercial Code), are as stated on the first page of this Mortgage. 10. FURTHER ASSURANCES: ATTORNEY-IN-FACT. The following provisions relating to further assurances and attorney-in-fact are a part of this Mortgage. a. Further Assurances. At any time, and from time to time, upon request of Mortgagee, Mortgagor will make, execute and deliver, or will cause to be made, executed or delivered, to Mortgagee or to Mortgagee's designee, and when required by Mortgagee, cause to be filed, recorded, refiled, or rerecorded, as the case may be, at such times and in such offices and places as Mortgagee may deem appropriate, any and all such mortgages, deeds of trust, security deeds, security agreements, financing statements, continuation statements, instruments of further assurance, certificates, and other documents as may, in the sole opinion of Mortgagee, be necessary or desirable in order to effectuate, complete, perfect, continue, or preserve (i) the obligations of Mortgagor under the Note, this Mortgage, and the AHP Agreement, and (ii) the liens and security interests created by this Mortgage as first and prior liens on the Property, whether now owned or hereafter acquired by Mortgagor. Unless prohibited by law or agreed to the contrary by Mortgagee in writing, Mortgagor shall reimburse Mortgagee for all costs and expenses incurred in connection with the matters referred to in this paragraph. b. Attorney -in -Fact. If Mortgagor fails to do any of the things referred to in the preceding paragraph, Mortgagee may do so for and in the name of Mortgagor and at Mortgagor's expense. For such purposes, Mortgagor hereby irrevocably appoints Mortgagee as Mortgagor's attorney-in-fact for the purpose of making, executing, delivering, filing, recording, and doing all other things as may be necessary or desirable, in Mortgagee's sole opinion, to accomplish the matters referred to in the preceding paragraph, and this power is hereby declared to be coupled with an interest and irrevocable until this Mortgage is cancelled of record. 11. DEFAULT. Each of the following, at the option of Mortgagee, shall constitute an event of default ("Event of Default") under this Mortgage: a. Default with Respect to Mortgagor Obligations. The failure of the Mortgagor to pay, perform or observe any of Mortgagor's obligations under this Mortgage, the Note, the Lease or the AHP Agreement. 1/1534665.2 8 b. Default on Other Payments. Failure of Mortgagor within the time required by this Mortgage to make any payment for taxes or insurance, or any other payment necessary to prevent filing of or to effect discharge of any lien. c. Default under any Loan Agreement. The happemng or occurrence of any default or event of default under or pursuant to any loan agreement between the Mortgagor and Mortgagee. d. Insolvency. The dissolutionor termination of the existence of Mortgagor as a going business, the insolvency of Mortgagor, the appointment of a receiver for any part of the Property or any property owned by Mortgagor, any assignment for the benefit of creditors, or the commencement of any proceeding under any bankruptcy or insolvency laws by or against Mortgagor. e. Sale of Mortgaged Property. The sale, transfer or conveyance of all or any part of the Property in violation of Paragraph 3(b) of this Mortgage. The provisions of this Paragraph 11(e) shall apply to any and all sales, transfers, conveyances, exchanges, leases, assignments or other dispositions by Mortgagor, its successors and assigns, and any subsequent owners of the Property, or any part thereof. f. Foreclosure, Forfeiture, etc. Commencement of foreclosure or forfeiture proceedings, whether by judicial proceeding, self-help, repossession or any other method, by any creditor of Mortgagor or by any governmental agency against any of the Property or any property owned by Mortgagor. Breach of Other Agreement. Any breach by Mortgagor under the terms of any other agreement between Mortgagor and Mortgagee that is not remedied within any grace period provided therein, including, without limitation, any agreement concerning any indebtedness or other obligation of Mortgagor to Mortgagee, whether existing now or later. Modification of the Lease. Mortgagor and Landlord modify, terminate or replace the Lease without prior written consent of Lender. i. Misrepresentation. Mortgagor makes any verbal or written statement or provides any financial information that is untrue or inaccurate or conceals a material fact at the time rt 1s made or provided. 12. ACCELERATION RIGHTS AND REMEDIES ON DEFAULT. Upon the happening or occurrence of any Event of Default and at any time thereafter Mortgagee, at its option, may exercise any one or more of the following rights and remedies, in addition to any other rights or remedies provided by law: a. Acceleration. Mortgagee at Mortgagee's option may declare all of the sums secured by this Mortgage to be immediately due and payable without further demand. b. Power of Sale. Mortgagee is hereby given and granted a power of sale to sell the Mortgaged Property at public outcry to the highest bidder in accordance with the conditions and other requirements for non judicial mortgage foreclosure sales under the laws of the State of Arkansas, either in person or by auctioneer, after having first given notice as may be required by Arkansas law and, upon payment of the purchase money, Mortgagee or any person 1/1534665.2 9 g. conducting the sale for Mortgagee is authorized to execute to the purchaser at said sale a deed to the premises so purchased. Mortgagee may bid at said sale and purchase said premises, or any part thereof, if the highest bidder therefor. At the foreclosure sale, the Mortgaged Property may be offered for sale and sold as a whole without first offering it in any other manner or may be offered for sale and sold in any other manner Mortgagee may elect, including, without limitation, en masse or in groups of parcels or in separate parcels. Mortgagee may postpone sale of all or any parcel of the Mortgaged Property by public announcement at the time and place of any previously scheduled sale. Mortgagee shall deliver to the purchaser Mortgagee's deed conveying the Mortgaged Property so sold without any covenant or warranty, expressed or implied. The recitals in Mortgagee's deed shall be prima facie evidence of the truth of the statements made therein. Mortgagorcovenants and agrees that the proceeds of any sale shall be applied in the following order: (i) to all costs and expenses of the sale, Including, but not limited to, attorney fees and costs of title evidence; (ii) to all sums secured by this Mortgage in such order as Mortgagee, in Mortgagee's sole discretion, directs; and (iii) the excess, if any, to the person or persons legally entitled thereto. c. Foreclosure. Mortgagee may foreclose this Mortgage under the power of sale herein set forth or through equity proceedings in respect to any Mortgaged Property encumbered hereby. d. Personal Property. Mortgagee may require Mortgagor to assemble (at Mortgagor's expense) any or all of the Personal Property encumbered hereby and make it available to Mortgagee at a place specified by Mortgagee which is reasonably convenient to both parties; and Mortgagee may enforce all of its remedies in respect to the encumbered Personal Property that may be available under the Uniform Commercial Code. In this last event all expenses of retaking, holding, preparing for sale, selling or the like, as well as reasonable attorney's fees (not exceeding 10 percent of the outstanding Indebtedness plus accrued interest) and lawful expenses incurred by Mortgagee in enforcing such remedies shall be payable to Mortgagee by Mortgagor and shall constitute a part of the Indebtedness. e. Order of Enforcement. Mortgagee may enforce the lien of this Mortgage in respect to all Real and Personal Property encumbered hereby by proceedings that are prosecuted simultaneously or are prosecuted -in such order as Mortgagee may select. f. Waiver of Marshaling. Notwithstanding the existence of any other security interests in the Property held by Mortgagee or by any other party, Mortgagee shall have the right to determine the order in which any or all of the Property shall be subjected to the remedies provided herein. Mortgagee shall have the right to determine the order in which any or all portions of the indebtedness secured hereby are satisfied from the proceeds realized upon the exercise of the remedies provided herein. Mortgagor, any party who consents to this Mortgage, and any party who now or hereafter acquires a security interest in the Property and who has actual or constructive notice hereof, hereby waive any and all right to require the marshaling of assets in connection with the exercise of any of the remedies permitted by applicable law or provided herein. Mortgagee's Option on Foreclosure. At the option of Mortgagee, this Mortgage may be foreclosed as provided by law or in equity, in which event a reasonable attorney's fee shall, g. 1/1534665.2 10 among other costs and expenses, be allowed and paid out of the proceeds of the sale. In the event Mortgagee exercises its option to foreclose this Mortgage in equity, Mortgagee may, at its option, foreclose this Mortgage subject to the rights of any tenants of the Mortgaged Property, and the failure to make any such tenants parties defendants to any such foreclosure proceedings and to foreclose their nghts will not be, nor be asserted to be by Mortgagor, a defense to any proceedings instituted by Mortgagee to collect the sums secured hereby, or any deficiency remaining unpaid after the foreclosure sale of the Mortgaged Property. h. UCC Remedies. With respect to all or any part of the Personal Property, Mortgagee shall have all the rights and remedies of a secured party under the Uniforms Commercial Code. i. Notice of Sale. Mortgagee shall give Mortgagor reasonable notice of the time and place of any public sale of the Personal Property or of the time after which any pnvate sale or other intended disposition of the Personal Property is to be made. Reasonable notice shall mean notice given at least ten (10) days before the time of the sale or disposition. If Mortgagee exercises any remedy, Mortgagee shall be obligated to Landlord under the terms of the Lease only for the time Mortgagee is in possession of the Real Property. Mortgagee shall have no further obligation to Landlord and shall be deemed to be released by Landlord from the terms of the Lease when Mortgagee relinquishes possession of the Real Property. Mortgagee shall have no obligation to cure any defaults under the Lease except as specifically and expressly undertaken by Mortgagee. 13. DEFAULT UNDER LEASE. If Mortgagor defaults under any term of the Lease, Landlord agrees to notify Mortgagee in writing of the default before exercising any rights or remedies available to Landlord as a result of the default. In addition, Landlord agrees that Mortgagee` will have the right to cure any default within 30 days of receipt of such notice unless the nature of the default is such that it cannot be cured within 30 days, in which case Mortgagee will have a reasonable time to cure so long as Lender exercises reasonable diligence in affecting such cure. During the applicable cure penod, Landlord agrees that Landlord will take no action to exercise any rights or remedies available under the Lease or by law as a result of such default without Mortgagee's prior written consent In the event Mortgagee cures any default by Mortgagor under the Lease, Mortgagor agrees to indemnify and hold Mortgagee harmless from any expenses incurred by Mortgagee to cure or contests the default under the Lease. Mortgagor agrees that Mortgagee shall be subrogated to all the rights and remedies of the Landlord under the Lease. Mortgagee is not responsible for any prior default of Mortgagor under the Lease and in no way assumes or guarantees Mortgagor's performance under the Lease. At Mortgagee's option, Mortgagee may: a. Contest any allegations by Landlord of default under the Lease. b. Cure the default and retain Mortgagor in possession of the Property. c. Cure the default and foreclose by subrogation to Landlord's rights against Mortgagor's interest in the Property and assume all responsibilities of Mortgagor under the Lease. 14. ATTORNEY'S FEES; EXPENSES Mortgagor will pay or reimburse Mortgagee for all reasonable attorney's fees, costs and expenses incurred by Mortgagee in any proceeding involving the estate of a decedent or an insolvent, or in any action, proceeding or dispute of any kind in which Mortgagee is made a party, or appears as party plaintiff or defendant, affecting this Mortgage, the Note, the 1/1534665.2 11 AHP Agreement, the Mortgagor, the Property, any condemnation action involving the Property, or any action to protect the security hereof; and any such amounts paid by Mortgagee shall be added to the indebtedness and secured by the lien of this Mortgage. Any expenses referred to in the preceding sentence, with interest thereon at the lesser of (i) the rate of ten percent (10%) per annum, or (ii) the maximum amount permitted by applicable law, shall become additional indebtedness of Mortgagor secured by this Mortgage. Unless Mortgagor and Mortgagee agree to other terms of payment, such amounts shall be immediately due and payable and shall bear interest from the date of disbursement at the rate of ten percent (10%) per annum, unless collection from Mortgagor of interest at such rate would be contrary to applicable law, in which event such amounts shall bear interest at the highest rate which may be collected from Mortgagor under applicable law. Mortgagor hereby covenants and agrees that Mortgagee shall be subrogated to the hen of any mortgage or other lien discharged, in whole or in part, by the indebtedness secured hereby. Nothing contained in this paragraph shall require Mortgagee to incur any expense or take any action hereunder. 15. CONDEMNATION. Mortgagor and Landlord will give Mortgagee prompt notice of any pending or threatened action by private or public entities to purchase or take any or all of the Property through condemnation, eminent domain or any other means. Mortgagor authorizes Mortgagee to intervene in Mortgagor's name in any of the above described actions or claims. 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 will be considered payments and will be applied as provided in this Mortgage. This assignment of proceeds Is subject to the terns of any pnor mortgage or other lien document. 16. FORBEARANCE BY AGENT NOT A WAIVER Any forbearance by Mortgagee in exercising any right or remedy hereunder, or otherwise afforded by applicable law, shall not bea waiver of or preclude the exercise of any right or remedy. The acceptance by Mortgagee of payment of any sum secured by this Mortgage after the due date of such payment shall not be a waiver of Mortgagee's right to either require prompt payment when due of all other sums so secured or to declare a default for failure to make prompt payment. The procurement of insurance or the payment of taxes or other hens or charges by Mortgagee shall not be a waiver of Mortgagee's right to accelerate the maturity of the indebtedness secured by this Mortgage. 17. REMEDIES CUMULATIVE Each remedy provided in this Mortgage is distinct and cumulative to all other rights or remedies under this Mortgage or afforded by law or equity, and may be exercised concurrently, independently, or successively, in any order whatsoever. No waiver or release by Mortgagee of any of its rights or remedies hereunder, or otherwise, shall be considered a waiver or release of any other or subsequent right or remedy of Mortgagee; no delay or omission in the exercise or enforcement by Mortgagee of any rights or remedies shall ever be construed as a waiver of any right or remedy of Mortgagee; and no exercise or enforcement of any such rights or remedies shall ever be held to exhaust any right or remedy of Mortgagee. 18. ACCELERATION IN CASE OF INSOLVENCY. If Mortgagor shall voluntarily file a petition under the Federal Bankruptcy Code, as such Code may from time to time be amended, or under any similar or successor Federal Statute relating to bankruptcy, insolvency, arrangements or reorganizations, or under any state bankruptcy or insolvency act, or file an answer in an involuntary proceeding admitting insolvency or failure to pay debts as they come due, or if Mortgagor shall fail within thirty (30) days to 1/1534665.2 12 obtain a vacation, stay or dismissal of involuntary proceedings brought for the reorganization, dissolution or liquidation of Mortgagor, or if any order for relief under the Federal Bankruptcy Code shall be entered against Mortgagor, or if a trustee, receiver or custodian shall be appointed for Mortgagor or the property owned by Mortgagor, or if the Property shall become subject to the junsdiction of a Federal bankruptcy court or similar state court, or if Mortgagor shall make an assignment for the benefit of its creditors, or if there is an attachment, execution or other judicial seizure of any portion of its assets and such seizure is not discharged within thirty (30) days, then Mortgagee may, at Mortgagee's option, declare all of the sums secured by this Mortgage to be immediately due and payable without prior notice to Mortgagor, and Mortgagee may invoke any remedies permitted upon default. Any attorney's fees and other expenses incurred by Mortgagee in connection with Mortgagor's bankruptcy or any of the other aforesaid events shall be additional indebtedness of Mortgagor secured by this Mortgage. 19. RELEASE OF RIGHT OF APPRAISEMENT AND REDEMPTION. To the extent permitted by law Mortgagor releases all nght of appraisement hereunder and also releases unto Mortgagee all nght of redemption under the laws of Arkansas, including particularly all right of redemption under Sections 18-49-106 and 16-66-502 of the Arkansas Code Annotated. 20. JOINT AND INDIVIDUAL LIABILITY AND SUCCESSORS. Each party's obligations under this Mortgage are independent of the obligations of any other party Mortgagee may release any part of the Property and Mortgagor and Landlord will still be obligated under this Mortgage for the remaining Property. Mortgagor agrees that Mortgagee and any party to this Mortgage may extend, modify or make any change in the terms of this Mortgage or any 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 will bind and benefit the successors and assigns of Mortgagor, Landlord and Mortgagee. 21. AMENDMENT, INTEGRATION AND SEVERABILITY. This Mortgage may not be amended or modified by oral agreement. No amendment or modification of this Mortgage is effective unless made in wnting and executed by Mortgagor, Landlord and Mortgagee. This Mortgage, the Note and any other documents relating to this loan are the complete and final expression of the agreement. If any provision of this Mortgage is unenforceable, then the unenforceable provision will be severed and the remaining provisions will still be enforceable. 22. INTERPRETATION. Whenever used, the singular includes the plural and the plural includes the singular. The section headings are for convenience only and are not to be used to interpret or define the terms of this Mortgage. 23. APPLICABLE LAW. This Mortgage shall be governed by and construed in accordance with the laws of the State of Arkansas and the United States of America, including but not limited to 12 U S.C. § 1735f -7a. 24. COVENANTS AND AGREEMENTS APPLICABLE TO LEASEHOLD. a. Mortgagor shall fully perform and comply with all covenants, warranties, representations, and other obligations (including without limitation the obligation to pay rents and other sums) imposed upon or assumed by it as lessee under the Lease and, upon Mortgagor's failure or alleged failure (notwithstanding that the alleged failure may be contested by 1/1534665.2 13 • Mortgagor) so to do, Mortgagee shall have the absolute and immediate right to enter upon the Mortgaged Property and to take such other action, to such extent and as often as mortgagee, in its opinion, deems necessary or desirable to prevent or cure any such failures or alleged failures by Mortgagor; and b. Mortgagor hereby agrees with Mortgagee that it shall not, without Mortgagee's prior written consent, (i) terminate or modify, or consent to the termination or modification of, the lease in any respect or (ii) permit the fee title to the Mortgaged Property demised by the lease (if fee title be so demised) and the leasehold estate so created to merge, but rather the said fee title and the said leasehold estate shall always be separate and distinct c. Mortgagor hereby represents, warrants, covenants and agrees that (i) this Mortgage is lawfully executed and delivered in conformity with the Lease, (n) Mortgagor will promptly notify Mortgagee in wasting of any covenants or conditions on the part of the Mortgagor to be performed or observed under the Lease, (iii) Mortgagor will (A) promptly notify Motgagee in writing of the receipt by Mortgagor of any notice (other than notices customarily sent on a regular periodic basis) from the lessor under the performance or observance of any of the terms, covenants or conditions on the part of the Mortgagor to be performed or observed under the Lease, (B) promptly notify Mortgagee in writing of the receipt by Mortgagor of any notice from the lessor under the Lease to Mortgagor of termination of the Lease pursuant to the provisions of the Lease or otherwise, and (C) promptly cause a copy of each such notice received by Mortgagor from the lessor under the Lease to be delivered to Mortgagee, (iv) Mortgagor will furnish to Mortgagee, upon demand, proof of payment of all items which are required to be paid by Mortgagor pursuant to the Lease and proof of payment of which is required to be given to the lessor under the Lease, (v) Mortgagor shall not consent or agree to any subordination of the Lease to any mortgage or mortgagees upon the fee interest of the lessor in the Mortgaged Property of any part thereof, and (vi) Mortgagor shall execute and deliver, on request of Mortgagee, such instruments as Mortgagee may deem useful or required to permit Mortgagee to cure any default under the Lease or permit Mortgagee to take such other action as Mortgagee considers desirable to cure or remedy the matter in default and preserve the interest of Mortgagee in the Mortgaged Property 1/1534665.2 [Signature and acknowledgement pages follow] 14 IN WITNESS WHEREOF, Mortgagor and Landlord have duly executed this Mortgage on the day and year first above written. Mortgagor and Landlord also acknowledge receipt of a copy of this Mortgage. 1/1534665.2 MORTGAGOR: SEVEN HILLS HOMELESS SHELTER, INC., an Arkan s corpora on. By: Name: L• e//F.%G•;s�„ Its: lit skit.$ -ts,k_ dowro/ LANDLORD: CITY OF FA TEVILLE, ARKANSAS, an Arkansas c rporation By: Name: Its: 15 State of Arkansas )ss. County of Washington ACKNOWLEDGEMENTS On this the day of iii�. 1, 2007, before me, LWntLtL4` —r the undersigned officer, . - rsonally appeared� / (,2Ji , &i - , whkI acknowledged hrmself/herselPthemselves to be the 1, �_ of SE N HIL HOMELESS SHELTER, INC., an Arkansas corporation, and that he/she they, ' such fP' 4 O/ &844,111, being authorized so to do, executed the foregoing instrument for the purpose therein contained,Uby szgmng the name of the corporation by himself/herself/themselves as ill \-14-06 Paaadt4 In witness whereof, I hereunto set my hand and official seal. My Commission Expires: (22(Z06 State of Arkansas )ss. County of Washington (Notary Public) P- tit o uy Craoil 1/4 -- On this the elieday of [ F,tio Ycda vs1 1, 2007, before me, U&ntJtdtioLot' Pala.) the undersigned officer personally appeared Nay. Cao eki , who acknowledged himself/herself/themselves to be the 1 "Mpu,(pr 1 of CITY OF FAYET'IEVILLE, an Arkansas corporation and that}jp/she/they, as such 1 Mt.V p r 1, being authorized so to do, executed the foregoing instrument for the purpose therein contained, by signing the name of the corporation by himself/herself/themselves as [ Mica yo P 1. In witness whereof, I hereunto set my hand and official seal. My Commission Expires. ... F pt9HEgpfpii `%zal #113•;•tp t (Notary Public) 1/1534665.2 • •u1•• *PAT WOO eddeal- 16 PROMISSORY NOTE $200,000.00 Fayetteville, Arkansas [ February 1, 200[7] FOR VALUE RECEIVED, the undersigned SEVEN HILLS HOMELESS SHELTER, INC., an Arkansas corporation, (the "Borrower") promises to pay to the order of REGIONS BANK, an Alabama banking corporation (the "Creditor" or, together with any other holder of this Note, the "Holder"), at the office of the Creditor at whose address is 3000 Galleria Tower, Suite 1600, Birmingham, Alabama 35244, or at such other place as the Holder may designate, the principal sum of Two Hundred Thousand and No/100 Dollars ($200,000.00) in legal tender of the United States of America and immediately available funds at the place payment is due, on the terms set forth in the Note. 1. Background In connection with the development and rehabilitation by Seven Hills Homeless Center (the "Owner") of a certain residential apartment project located in Washington County, Arkansas, Federal Home Loan Bank of Atlanta ("FHLB") has agreed to fund its AHP Project No. 05A0495 in connection with the FHLB's Affordable Housing Program (the "Program''), whereby the sum of $200,000.00 (the "Direct Subsidy Funds") will be loaned to Borrower and subsequently loan by Borrower to Owner to fund certain rehabilitation costs pursuant to a FHLB -approved application by Borrower and all FHLB approved amendments thereto (collectively, the "Application"). Borrower and Owner have agreed to comply with the terms and conditions of that certain Affordable Housing Program Agreement (Rental Project) dated as of June 23, 2005 by and between FHLB, the Creditor, Borrower and Owner (the "AHP Agreement"). Borrower and Creditor desire to enter into this Note in order to evidence Borrower's obligation to repay the Direct Subsidy Funds upon the occurrence of certain events. 2. Occupancy Restrictions During 15 -Year AHP Period. The rental units comprising the Mortgaged Property, or the applicable portion thereof shall be and remain occupied by and affordable for households with incomes at or below the levels committed to be served in the AHP Application for the duration of the 15 -year AHP retention period (as contemplated by the AHP Agreement), which extends for 15 years (the "AHP Retention Period") following Project Completion, as hereinafter defined.. The Borrower further agrees to comply with all terms, conditions, obligations and agreements set forth in the AHP Agreement. The income eligibility and affordability restrictions set forth in this Paragraph 2. and in the AHP Agreement shall terminate upon anyforeclosure of this Mortgage, or the First Mortgage, and deed in lieu of foreclosure thereof or any similar transaction. As used herein, the term "Project Completion" means that (i) the construction of the Project is 100% complete, (ii) at least 75% of the rental units comprising the Project shall have been leased, (iii) a certificate of occupancy (or equivalent document) shall have been issued for the Project by the appropriate governmental authority, and (iv) all Direct Subsidy Funds shall have been disbursed to the Borrower for use in the Project. 3. Prohibition on Sale or Refinancing In the case of a sale or refinancing of the Mortgaged Property prior to the end of the AHP Retention Period, (i) Borrower shall provide Creditor and FHLB written notice of such sale or refinancing prior to the consummation of such 1/1535131.1 1 • sale or refinancing and (ii) an amount equal to the full amount of the Direct Subsidy Funds (as evidenced by the Note) shall be immediately repaid to Creditor, unless the Mortgaged Property continues to be subject to a deed restriction or other legally enforceable retention agreement or mechanism incorporating the income eligibility and affordability restrictions committed to in the AHP Application for the remainder of the AHP Retention Period. 4. Repayment Terms. In the event that Borrower fails to comply with the terms set forth in Section 2 or Section 3 of this Note, Borrower shall immediately repay to Creditor the entire outstanding balance of the Direct Subsidy Funds. In the event that any such repayment becomes due, Borrower shall also pay to Lender a prepayment fee in the amount of the economic loss suffered by Creditor as a result of such repayment and the event giving rise to such repayment. 5. Loan Documents. This Note is the note referred to in, and is entitled to the security of, each of the following documents (which are sometimes hereinafter collectively referred to as the "Loan Documents"): (a) Leasehold Mortgage and Security Agreement (the "Mortgage") on certain real property located in Washington County, Arkansas (the "Property") of even date herewith, executed and delivered to the Creditor by Owner; (b) (c) The Application; and The AHP Agreement. 6. Events of Default, Remedies. Without in any way limiting the generality of the foregoing, the occurrence of any one or more of the following events shall constitute an Event of Default under this Note: (a) If the Borrower fails to repay the Direct Subsidy Funds at such time that such repayment becomes due under the terms of this Note or the Mortgage; or (b) If an "Event of Default" occurs under the terms of the Mortgage and is not cured within the applicable cure period, if any,specified in the Mortgage; (c) If any warranty, representation or certificate made or furnished by the Borrower in or pursuant to the Loan Documents or otherwise in connection with the indebtedness evidenced hereby should be materially false, incorrect, or incomplete when made. If any one or more of the foregoing Events of Default shall occur, the entire unpaid balance of this Note, at the option of the Holder of this Note (but without requirement of notice 1/1535131.1 r 2 to or demand on any other party), shall be and become due and payable immediately, and the Holder of this Note may proceed to exercise any remedy available to it at law or in equity. Each of the Loan Documents contains additional provisions whereby the maturity of this Note may be accelerated, and immediate payment in full of the unpaid amount of the principal sum advanced hereunder and accrued but unpaid interest thereon may be required, upon the occurrence of certain events described in such instruments. 7. Waivers. The Borrower hereby waives demand, presentment, dishonor, notice of dishonor and any other requirement necessary to hold the Borrower obligated hereon. The Borrower hereby agrees that the obligations evidenced by this Note may, from time to time, in whole or in part, be released or modified without notice to, or reservation of rights against, any Guarantor, and that any collateral now or hereafter held for the obligations of the Borrower under this Note may hereafter be released, compromised, or exchanged, and that the Holder may fail to perfect its lien or security interest in such collateral or may permit the perfection of its lien or security interest in such collateral to lapse, all without in any way affecting or releasing the liability of the Borrower under this Note. 8. Costs and Expenses. The Borrower agrees to pay all intangibles taxes; documentary stamp taxes, recording fees or taxes and other taxes and fees due to any governmental authority in connection with the execution and delivery of this Note, the Loan Documents or any other agreement which provides collateral for this Note. The Borrower agrees to pay all costs and expenses, including reasonable attorneys' fees, incurred by the Holder of this Note in collecting or attempting to collect this Note. 9. Miscellaneous; Governing Law. The Holder shall not by any act, delay, omission or otherwise be deemed to have waived any of its rights or remedies under the Note, under any agreement which provides collateral for this Note, or under applicable law. The Holder may accept late payments and/or partial payments under this Note without waiving or otherwise impairing its right to require strict conformance to the terms hereof. All rights and remedies of the Holder under this Note, under any such agreement providing collateral for this Note, and under applicable law shall be cumulative and may be exercised successively or concurrently. This Note shall be govemed by and construed in accordance with the laws of the United States and of the State of Arkansas. Any provision of this Note which shall be deemed to be unenforceable or invalid under any such law shall be ineffective to .the extent of such unenforceability or invalidity without affecting the enforceability or validity of any other provision hereof. 1/1535131.1 [Signature page follows] 3