OPEN-END MORTGAGE DEED AND SECURITY AGREEMENT
FROM: ARDMORE HOSPITALITY, LLC
2700 West Broadway Street
Ardmore, OK 73401
TO: RAIM CORP.
C/O CNH PARTNERS, LLC
Two Greenwich Plaza, 1st Floor
Greenwich, CT 06830
Dated: October 2, 2006
Record and Return to:
CNH PARTNERS, LLC
Two Greenwich Plaza, 1st Floor
Greenwich, Connecticut 06830
Attention: Mark Mitchell
(C) Service Equipment
(D) Condemnation Proceeds
(F) Property Income
ARTICLE I. COVENANTS AND REPRESENTATIONS OF BORROWER
1.01 Payment and Performance
1.05 Compliance with Law; Etc.
1.06 Financial Statements
1.07 Maintenance and Repair; Inspection; Sign
1.08 Sale, Encumbrance and Use
1.10 Property Income
1.11 Removals, Alterations and Demolition
1.12 Protection of Lien and Other Expenses
1.13 Books, Records and Accounts
1.14 Security Agreement
1.15 Required Notices
1.16 Other Documents
1.17 General Representations and Warranties
1.18 Environmental Protection
ARTICLE II. DEFAULT
2.01 Events of Default
ARTICLE III. REMEDIES
3.03 Possession of Premises; Appointment of Receiver
3.04 Lender Advances
3.05 No Marshalling
3.06 Remedies Cumulative; Lender's Discretion
3.07 No Waiver
3.08 No Merger
ARTICLE IV. MISCELLANEOUS PROVISIONS
4.01 Future Advances
4.02 Governing Law; Binding Effect
4.04 No Agency or Joint Venture
4.05 Invalid Provisions
4.06 Prejudgment Remedy Waiver
4.07 Jury Trial Waiver
Schedule A - (Description)
Schedule B (Permitted Encumbrances)
Schedule C - (Promissory Note)
OPEN-END MORTGAGE DEED AND SECURITY AGREEMENT
TO ALL PEOPLE TO WHOM THESE PRESENTS SHALL COME, GREETINGS:
KNOW YE, that ARDMORE HOSPITALITY, LLC, a limited liability company having an office
located at 2700 West Broadway Street, Ardmore, OK 73401, the “Borrower”), for the consideration of ONE
HUNDRED SIXTY THOUSAND ($160,000.00) DOLLARS and other valuable consideration received by
Borrower to Borrower’s full satisfaction of RAIM CORP., having an address located at 2 Greenwich Plaza, 1st
Floor, Greenwich, Connecticut 06830 (the “Lender”), does hereby give, grant, bargain, sell, convey and
confirm, with MORTGAGE COVENANTS, unto the Lender, its successors and assigns forever the following
(collectively, the “Collateral”):
A. Land: That certain piece or parcel of real property known as 2700 West Broadway Street,
Ardmore, Oklahoma, more particularly described in the attached Schedule A, and all rights, privileges and
easements appurtenant thereto (the “Premises”).
B. Improvements: All the buildings, structures, improvements, fixtures and building equipment
now or subsequently placed on the Premises (the “Improvements”).
C. Service Equipment: All fixtures, appliances, machinery, equipment and furnishings now or
hereafter installed and such other goods, chattels and personal property as are now or subsequently attached to,
used, or furnished in connection with the letting or operation of the Premises or in connection with the
activities conducted thereon, and all renewals or replacements thereof or additions thereto, or articles of
substitution thereof (the “Service Equipment”).
D. Condemnation Proceeds: All awards or payments, including interest thereon, which may be
made with respect to the Premises as a result of the exercise of the right of eminent domain in accordance with,
and subject, to the terms and conditions of Section 1.04.
E. Leases: All right, title and interest of the Borrower in and to any and all leases, tenancies or
rights of use and occupancy, with amendments, if any, and any extensions, renewals or guarantees of the
tenants' obligations thereunder, now or hereafter on or affecting the Premises, whether or not recorded, with all
security therefor and all monies payable thereunder, and all books and records which contain payments made
under the leases and all security therefor (the “Leases”) in accordance with, and subject to, the terms and
conditions of Section 1.09.
F. Property Income: All rents, income, profits, security deposits and other benefits to which the
Borrower may now or hereafter be entitled from the Premises, the leasing of the Premises, or the business
operations conducted at or from the Premises (the “Property Income”) in accordance with, and subject to, the
terms and conditions of Section 1.10 below.
TO HAVE AND TO HOLD the above granted and bargained Premises, with the privileges and
appurtenances thereof but subject to those encumbrances listed upon Schedule B (the “Permitted
Encumbrances”), unto the Lender, its successors and assigns forever, for its proper use and benefit.
THE CONDITION OF THIS DEED IS SUCH THAT:
A. The Borrower is indebted to the Lender through a Note and other Security in the original
principal amount of ONE HUNDRED NINETY THOUSAND DOLLARS ($190,000.00) (the “Loan”)
secured by Collateral and the property owned by Borrower and located at 2700 West Broadway Street,
Ardmore, Oklahoma, and as described on the attached Schedule A, which sum is evidenced by a Promissory
Note to Borrower, Cross Development, LLC, Randy Bailey, and Calvin R. Bailey jointly and severally in the
original principal amount of up to ONE HUNDRED NINETY THOUSAND DOLLARS ($190,000.00) (the
“Note ”), a copy of which is attached as Schedule B and is subject to the additional terms and conditions
contained in this Mortgage.
B. The Borrower is granting this Mortgage to the Lender to secure the payment of the Note,
subject to the additional terms and conditions contained in this Mortgage.
ARTICLE I. COVENANTS AND REPRESENTATIONS OF THE BORROWER
The Borrower covenants, represents and warrants to the Lender as follows:
1.01 Payment and Performance. The Borrower to the extent of a default under the terms and
conditions of the Note will pay the debt evidenced by the Note and all other sums due thereunder in lawful
money of the United States and pay and perform all of its obligations under the Note, and this Mortgage, and
every other instrument now or hereafter securing, evidencing or relating to the Note, this Mortgage and any
documents associated with the Loan (collectively, the “Loan Documents”) at the times and in the manner set
forth in such Loan Documents. All amounts due the Lender under any of the Loan Documents shall be secured
by the lien of this Mortgage and shall hereinafter be referred to as the “Mortgage Debt”.
A. Until the Loan is paid in full, the Borrower shall insure that it obtains and maintains
in effect insurance coverage as follows:
(i) An original physical damage hazard insurance policy or policies, in a format
and issued by an insurance company or companies satisfactory to the Lender. The original policy or policies
must contain a mortgagee clause naming the Lender as mortgagee and loss payee and shall be supplied to the
Lender together with a paid receipted bill for at least one annual premium.
(ii) The amount of insurance shall be in amounts sufficient to prevent the
application of any insurance policy co-insurance contribution on any loss, but shall not be less than the full face
amount of the Loan and any other encumbrances which are prior in right, provided such amount is less than or
equal to the replacement cost of the improvements for insurance purposes. The policy or policies shall contain
provisions for thirty (30) days advance notice to the Lender of policy cancellation or material change.
(iii) The insurance covering the Premises shall not be less than that encompassed
by “Fire, Extended Coverage, and Vandalism and Malicious Mischief” perils broadened to include the so
called “All Risk of Physical Loss”. From and after the date the initial tenant first takes occupancy of the
building to be constructed at the Premises, the policy further shall provide rental insurance in an amount not
less than the minimum annual rental income scheduled to be derived from tenants at the Premises each year,
said policy limits to be adjusted when said rentals are adjusted.
(iv) Additionally, the Lender shall be supplied with evidence of Comprehensive
General Liability Insurance covering the Premises in an amount of not less than [$1,000,000] Bodily Injury
and/or Property Damage Liability written on an occurrence basis with a broad form endorsement. Such
certificate shall be in the form of a Certificate of Insurance in favor of the Lender requiring thirty (30) days
advance notice to the Lender of policy cancellation or material change.
(v) The Lender reserves the right, when it deems necessary, to require additional
physical damage hazard insurance such as, but not limited to:
(a) Builder’s Risk;
(c) Water Damage;
(d) Flood, including surface waters; and
(e) Collapse due to faulty construction, design errors and/or faulty
B. The Borrower will be responsible to insure that all insurance requirements contained herein
notwithstanding the subsequent transfer of such obligation to other parties. Borrower shall cause any tenants at
the Premises to name Lender as an additional insured and loss payee on all liability insurance obtained by said
tenants relating to the Premises. Nothing contained within any agreement transferring the Borrower’s
obligations hereunder shall relieve the Borrower of the obligation to maintain insurance coverage as required
by the Lender or to deliver to the Lender any required insurance documentation.
C. The Lender reserves the right to increase the amount of any insurance coverage required
hereunder to an amount deemed reasonably necessary by the Lender and to approve the form and content of all
insurance policies evidencing such coverage. Any failure on the part of the Lender to secure physical evidence
of any insurance required herein shall not relieve the Borrower of its responsibilities.
D. In the event of any loss or damage to the Property, the Borrower shall give prompt notice
thereof to the Lender. The Lender is authorized and empowered, at its sole option, to collect and receive, or
cause to be collected and received for its account, the proceeds from any insurance policy covering the
Improvements and the Premises, not to exceed the outstanding balance of the Loan, together with all accrued
and unpaid interest and any other sums due the Lender in connection therewith. These proceeds shall be held
and expended, at the Lender’s option, for the repair, restoration and rebuilding of the Premises or applied
toward any sums due Lender in connection with the Loan.
E. The Lender will, at its option, require an escrow of insurance premiums.
A. Subject to the provisions of Section 1.03B below, the Borrower shall insure payment of all
taxes, water rates, sewer rents, utility charges, assessments, and governmental or other charges and impositions
of any kind whatsoever including any assessment for local improvements, whether payable in installments or
otherwise, for which lien rights exist, which may now or hereafter be assessed or levied upon any part of the
Premises, or in lieu of or in addition to a tax on the Premises (all such charges and payments collectively
referred to herein as the “Taxes”). The Borrower shall promptly notify the Lender of the delinquency in the
payment of any Taxes.
1.04 Condemnation. The Borrower will give the Lender prompt notice of any eminent domain
proceedings affecting any part of the Premises. The Borrower hereby appoints the Lender as its
attorney-in-fact, coupled with an interest, and authorizes the Lender, at its option, on behalf of the Borrower, to
collect, receive, and retain, subject to the terms hereof, the proceeds of any such award or payment, to give
proper receipts therefor and, to adjust, compromise and settle the claim therefor. The Lender shall have the
right to intervene and participate in any eminent domain proceedings and the Borrower shall consult with the
Lender in all matters pertaining to the adjustments, compromise or settlement of such proceedings and shall not
enter into any agreement with respect to such matters without the prior written consent of the Lender. The
Lender may, in its sole discretion, retain and apply any eminent domain award, at the Lender’s option, either in
whole or in part, to the payment of the Mortgage Debt or to the restoration of the Property.
1.05 Compliance with Law, etc.. The Borrower warrants that it presently does, and covenants that it
will continue to observe and comply in all material respects with (1) all laws, regulations, ordinances, rules,
and orders affecting the Premises or the Borrower’s business operations thereon; and (2) the terms of each
insurance policy applicable to the Collateral (for the purposes of this Section 1.05, a “legal requirement”)
provided, however, that the Borrower shall have the right to contest, in good faith, the application of any legal
requirement affecting either the Premises and/or the business operations thereon without said contest violating
the provisions of this Section 1.05, provided that the following requirements must be satisfied:
(i) Noncompliance with the legal requirement shall not, in the Lender’s discretion,
constitute a crime or misdemeanor, or expose the Lender to any criminal or civil liability;
(ii) All costs incurred in contesting the legal requirement shall be paid solely at the
expense of the Borrower;
(iii) The Borrower shall, upon demand by the Lender, deposit with the Lender such
amounts as may be required by the Lender as security against the estimated costs of complying with the legal
requirement, said amount to be held in a non-interest bearing account; and
(iv) The Borrower shall diligently pursue the contest of the legal requirement.
The Lender may apply the security to satisfy the legal requirement if, in the Lender’s judgment, there
is any under delay in the prosecution of the contest and/or the Lender believes the protection of the Premises or
the Lender’s interest therein shall be put at risk. In the event any such contest shall be finally determined in
favor of the Borrower, and upon the expiration of any applicable appeal periods, then the Lender shall return
any remaining security to the Borrower, without interest.
If the Borrower receives notice that it is not in compliance with any such law or condition, the
Borrower will promptly provide the Lender with a copy of such notice.
1.06 Financial Statements. The Borrower annually shall furnish to the Lender or cause to be
furnished, (a) within one hundred and twenty (120) days after the close of each fiscal year of Borrower that
ends during the life of the Loan, financial statements with respect to the Premises showing the annual rent roll,
income and expenses, and the detailed operating expenses of the Premises securing the Loan prepared by
Borrower, all in such detail as the Lender may reasonably require and certified by a certified public accountant
acceptable to the Lender if the Lender so requests, together with financial statements of Guarantor, in such
form and detail as Lender may require, and (b) within thirty (30) days of filing, copies of Borrower’s and
Guarantor’s federal, state, and local tax returns together with all supporting schedules, and (c) such other
financial information in such detail as the Lender may reasonably require within fifteen (15) days of the
Lender’s request for same.
1.07 Maintenance and Repair; Inspection; Sign
A. The Borrower will (1) keep and maintain the Collateral in good condition, working order and
repair; (2) not commit or suffer any waste of the Premises; (3) repair, replace, rebuild or restore any part of the
Collateral which may be damaged or destroyed subject to the provisions of Section 1.02; and (4) make all other
repairs and replacements to the Collateral which the Lender may reasonably require to prevent termination of
the Lease. All such repairs shall be done promptly in good and workmanlike manner.
B. Upon an Event of Default, the Lender shall have the right to enter the Premises and make any
repairs or other construction work on behalf of the Borrower necessary to preserve the Collateral. All costs
incurred by the Lender shall be payable by the Borrower within 20 days of demand, and shall become part of
the Mortgage Debt secured hereby.
C. The Lender and any person authorized by the Lender shall have the right to enter and inspect
the Premises at all reasonable times.
1.08 Sale, Encumbrance and Use
A. The Borrower shall not, without the Lender's prior written consent which may be withheld in
the Lender’s sole discretion for any reason whatsoever, (1) transfer, lease or otherwise dispose of, or contract to
dispose of, legal or equitable title to all or any part of the Collateral; (2) voluntarily create any liens or
encumbrances against such title; (3) initiate or allow any change in the nature of the use and occupancy of the
B. The Borrower may not sell, assign, or otherwise transfer title to the Collateral or the Project
during the term of the Loan without the Lender’s prior written consent. The Borrower shall not, without the
prior written consent of the Lender, pledge, mortgage, grant a deed of trust or otherwise encumber all or any
portion of the Collateral or any other collateral given the Lender in connection with the Loan as security for
any other obligation or debt.
C. The Borrower will keep the Collateral free from the lien of all persons supplying labor or
materials in connection with the construction or repair of any Improvements constituting a part of the Property;
provided, however, that the Borrower may, in good faith, challenge the invoice from such persons provided
any lien arising from such challenge is handled in accordance with subparagraph D below.
D. The Borrower shall promptly notify the Lender if any lien, attachment or encumbrance is
recorded against the Collateral without the Borrower’s consent, and will cause the lien to be bonded or
canceled and discharged of record within thirty (30) days after its recording.
1.09 Leases. The Borrower will not take any action, the effect of which would be to cause any
Leases to cease to be in full force and effect, and will not, without the prior written consent of Lender, (1)
cancel or terminate any Leases, or consent to any cancellation, termination or surrender thereof, or any
assignment thereof or any leasehold mortgage or similar collateral arrangement; (2) amend, modify or
subordinate any material provision of any Leases, or renew any Leases; (3) enter into any new Leases except
for the Leases; (4) waive any material default under or breach of any Leases; (5) consent to any prepayment or
discount of rent or advance rent under any Leases (more than 30 days in advance); or (6) take any action in
connection with any Leases which may impair or jeopardize the validity of such Leases or the Lender’s interest
therein. The Lender shall have the right to review and refuse written consent to any of the above proposed
actions of the Borrower based upon the substance of the proposed transaction, the creditworthiness of the
Borrower or the tenant, the financial condition of the Premises or otherwise. All new Leases and any renewals
or amendments to existing Leases shall be subject to the Lender’s approval. Borrower shall furnish copies of
all new or modified leases to Lender within fifteen (15) days of execution. Furthermore, Borrower as Landlord
shall have the right to commence any legal action including seeking termination of a lease if a tenant is in
default under the payment of any rent after the applicable expiration of the period. Borrower shall keep Lender
informed of any progress and copies of leases therewith. Borrower shall be obligated to forward promptly to
each tenant or occupant the bank’s standard form of subordination, ratification, attornment agreement after the
closing of the Loan and use reasonable efforts in obtaining the execution of the same from said tenants, if
requested or required by Lender.
1.10 Property Income. The Borrower hereby assigns, transfers and grants a security interest to the
Lender in and to the Collateral to secure the Mortgage Debt. The Borrower will not otherwise assign, transfer
or encumber in any manner any of the Collateral. The Borrower may collect and use the Property Income, as
same becomes due and payable, so long as an Event of Default, has not occurred, but may not collect Property
Income more than thirty (30) days in advance of the date the same becomes due. This Section shall constitute
an absolute and present assignment of the Property Income. The existence or exercise of the Borrower’s
conditional permission to collect Property Income shall not operate to subordinate this assignment to any
1.11 Removals, Alterations and Demolition. No Improvement or Service Equipment of any material
nature and owned by Borrower shall be removed, altered, demolished or erected without the prior written
consent of the Lender, not to be unreasonably withheld. All such changes, additions and alterations shall
become part of the Property immediately upon installation. Any replacement equipment shall constitute Service
Equipment and be subject to the lien of this Mortgage.
1.12 Protection of Lien and Other Expenses. The Borrower shall pay, indemnify, defend and hold
the Lender harmless from all costs, disbursements, expenses and reasonable counsel fees incurred by the
Lender in connection with protecting or sustaining the lien of this Mortgage or collection of the Mortgage
Debt, either before or after obtaining judgment of foreclosure of the Mortgage or judgment on or with respect
to the Mortgage Debt.
1.13 Books, Records and Accounts. The Borrower will keep and maintain proper and accurate
books, records and accounts reflecting all items of income and expense received or paid by the Borrower or
any other person in connection with the Collateral and all business operations of Borrower conducted at or
from the Premises. The Lender shall have the right at any time during normal business hours upon reasonable
notice to examine and copy any such books, records and accounts wherever located.
1.14 Security Agreement. This Mortgage is intended to be effective as a security agreement
pursuant to the Oklahoma Uniform Commercial Code. The Lender is the secured party and the Borrower is the
debtor with respect to this security agreement and the mailing addresses of the secured party and the debtor for
the purpose of this security agreement are set forth in the first paragraph of this Mortgage.
1.15 Required Notices. In addition to any other notices required under this Mortgage, the Borrower
shall promptly notify the Lender of the (1) receipt of notice from any governmental authority relating to the
Collateral; (2) receipt of notice from the holder of any other lien or security interest in the Collateral; (3) receipt
of any notice from any tenants alleging any default or violation of the lease(s) by Borrower; or (4)
commencement of any judicial or administrative proceedings by or against or otherwise affecting the Borrower
or the Collateral.
1.16 Other Documents. The Borrower, upon request, shall deliver to the Lender all reports,
licenses, permits approvals, orders, agreements, options, and applications relating to or affecting the Collateral.
1.17 General Representations and Warranties. The Borrower represents and warrants that as of the
date of this Mortgage:
A. The Borrower is generally paying its debts as such debts become due, the fair market value of
its assets exceeds its liabilities and to the best of the Borrower’s knowledge, no bankruptcy or insolvency
proceedings are pending or contemplated by or against the Borrower.
B. All reports, statements and other data furnished by the Borrower to the Lender in connection
with the Loan are true, correct and complete in all material respects and do not omit any fact or circumstance
which would make the statements contained therein misleading; present fairly the financial position of the
Borrower as of the date stated therein, and the results of the Borrower’s operation and changes in financial
position for the years then ended and the statements are prepared in conformity with generally accepted
accounting principles applied on a consistent basis; and that no material adverse change has occurred to the
Collateral or in the financial condition of the Borrower.
C. The Premises and all Improvements thereon are not subject to any liens, encumbrances or
restrictions except those listed in Schedule B, which encumbrances will not interfere with construction,
completion or operation of the Improvements and are in good order and repair, have not suffered any damage
from fire or other casualty, no part of the Premises has been condemned or taken by eminent domain and no
condemnation or other taking of the Premises or any part thereof is threatened or pending, or has been
threatened with, any other title proceedings.
D. The Borrower is a limited liability company duly formed and validly existing under the laws of
the State of Oklahoma.
E. The Borrower has the legal capacity and is authorized to execute and deliver the Loan
Documents and the Loan Documents are valid and binding obligations enforceable in accordance with their
F. There is no action, suit or proceeding pending, or to the knowledge of the Borrower threatened
against, or materially affecting the Borrower or the Collateral or the business operations conducted at or from
the Premises or which involve the possibility of any judgment or liability not fully covered by insurance or
which, in the Borrower’s opinion, might result in any adverse change in the business, assets or operations of
the Borrower which would, in any way, materially and adversely affect the Collateral or the validity or
enforceability of the Loan Documents.
G. The Borrower is not a party to or bound by any contract, agreement or other instrument, or
subject to any charter or other restriction or any judgment, order, writ, injunction, decree, rule or regulation
which now or in the future may materially and adversely affect the business, operations, properties, assets or
condition, financial or otherwise, of the Borrower.
H. The Borrower has not received any notice, order, petition, or similar document in connection
with or arising out of any violation or possible violation, of any environmental, health or safety law, regulation
or order, and the Borrower knows of no basis for any such violation or threat thereof for which it may become
I. The Borrower has filed all required federal, state and local tax returns, and no claims have
been asserted or unpaid with respect to such taxes.
J. The Premises has frontage on, and direct access for ingress and egress to, a public street.
K. Electric, gas, sewer, septic, water facilities and any other necessary utilities are available in
sufficient capacity to service the Premises satisfactorily, and any easements necessary to the furnishing of such
utility service by the Borrower have been obtained and duly recorded.
L. The Borrower is not in default under the terms of any instrument evidencing or securing any
indebtedness of the Borrower and there has occurred no event which would, if uncured or uncorrected,
constitute a default under any such instrument with the giving of notice, passage of time, or both.
1.18 Environmental Protection. The Borrower, after having conducted an appropriate investigation,
consistent with customary commercial practice, of the Premises, represents and covenants to the best of its
A. No toxic or hazardous substances including, without limitation, asbestos and the group of
organic compounds known as polychlorinated biphenyls, have been, are or shall be generated, treated, stored or
disposed of, or otherwise deposited in or located on the Premises including, without limitation, the surface and
subsurface waters of the Premises;
B. No activity has been, is or shall be undertaken on the Premises which has caused or would
cause (i) the Premises to become a hazardous waste treatment, storage or disposal facility within the meaning
of, or otherwise bring the Premises within the ambit of, the Resource Conservation and Recovery Act, 42
U.S.C. 6901 et seq., as the same may be amended from time to time (“RCRA”), or any similar state laws,
regulations or local ordinances, (ii) a release or threatened release of a hazardous substance from the Premises
within the meaning of, or otherwise bring the Premises within the ambit of, the Comprehensive Environmental
Response, Compensation and Liability Act, 42 U.S.C. 9601 et seq., as the same may be amended from time to
time (“CERCLA”), or the Toxic Substances Control Act, 15 U.S.C. 2601 et seq. (“TSCA”) any similar state
laws, regulations or local ordinances, or (iii) the discharge of pollutants or effluents into any water source or
system, or the discharge into the air of any emissions, which would require a permit under the Federal Water
Pollution Control Act, 33 U.S.C. 1251 et seq., or the Clean Air Act, 42 U.S.C. 7401, et seq., or any similar
state laws, regulations or local ordinances;
C. Neither the Borrower, nor any tenant or other occupant of the Premises, nor any other party
has caused or suffered to occur, and Borrower will not hereafter cause or suffer to occur, a discharge, spillage,
uncontrolled loss, seepage or filtration of oil or petroleum or chemical liquids or solids, liquid or gaseous
products or hazardous waste (a “spill”), as those terms are used in Chapter 446k of the Oklahoma General
Statutes Revision of 1958, as the same may be amended from time to time (the “Act”), at, upon, under or
within the Premises or any contiguous real estate which has been included in the property description of the
Premises within the preceding three years, and neither the Borrower, nor to the best knowledge of the
Borrower, any tenant or other occupant of the Premises, nor any other party has been, is or will be involved in
operations at, adjacent to or near the Premises, nor are there or will there be any substances or conditions in or
on the Premises, which could support a claim or cause of action or lead to the imposition on the Borrower or
any other owner of the Premises of liability or the creation of a lien on the Premises, under RCRA, CERCLA,
TSCA, the Act, or any other federal, state or local environmental laws, regulations or ordinances (collectively,
the “Environmental Laws”);
D. The Borrower shall comply strictly and in all respects with the requirements of the
Environmental Laws and shall notify the Lender promptly in the event of any spill upon the Premises, and shall
promptly forward to the Lender copies of all orders, notices, permits, applications or other communications and
reports in connection with any such spill or any other matters relating to the Environmental Laws as they may
affect the Premises;
E. The Borrower does and shall indemnify the Lender and hold the Lender, its successors and
assigns harmless from and against all loss, liability, damage and expense, including reasonable attorneys' fees,
suffered or incurred by Lender, whether as holder of this Mortgage, as mortgagee in possession or as successor
in interest to the Borrower as owner of the Premises, by virtue of foreclosure or acceptance of a deed in lieu of
foreclosure (i) under or on account of the Environmental Laws including, without limitation, the assertion of
any lien thereunder; (ii) with respect to any spill or hazardous substance affecting the Premises, including any
loss of value of the Premises as a result of a spill; (iii) with respect to any other matter affecting the Premises
within the jurisdiction of the Environmental Protection Agency or the Department of Environmental
Protection, it being understood that in the event a separate indemnification document is executed by the
Borrower in connection herewith, and to the extent of any conflict with this Mortgage, the terms of such
separate indemnity shall govern.
ARTICLE II. DEFAULT
2.01 Events of Default. Any one or more of the following shall constitute an “Event of Default”
A. The failure of Borrower to pay any installment of principal or interest or any other sums due
with respect to the Note and mortgage debt within ten (10) days after such sums are due in accordance with the
provisions of this Mortgage and the Loan Documents.
B. The occurrence of an Event of Default (as defined therein) under any other Loan Document.
C. The actual waste, removal or demolition of, or material alteration to, any part of the Premises
without the Lender’s prior written consent.
D. The failure to observe or perform any other agreements, covenants or representations of the
Borrower contained in this Mortgage or of any guarantor contained in the guaranty after the expiration of
fifteen (15) days after written notice from the Lender to the Borrower or such additional time as may
reasonably be required if it cannot be cured within such fifteen (15) day period.
E. The occurrence of a default under or demand for the payment of any other note or obligation
of the Borrower secured by a mortgage on or security interest in the Premises.
F. The cancellation, revocation, suspension or failure to receive a grant or renewal of any and all
licenses and permits necessary for the construction, operation or use of the Improvements.
G. The occurrence of a material default or demand for the payment under the terms of any other
note or obligation of a material amount or nature of the Borrower or any guarantor of the Loan whether now
existing or hereafter arising and failure to timely pay any such note, or a material default under any guaranty or
obligation of the Borrower or any guarantor to the Lender or any other party.
H. The failure of the Borrower within fifteen (15) days after written notice to allow the Lender (or
its representatives) at all reasonable times, permission to enter upon the Premises, inspect the Improvements
and all materials, fixtures and articles used, or to be used, on the Premises and to examine all detailed plans,
show drawings and specifications which relate to the Improvements, or if the Borrower shall fail to furnish to
the Lender or its authorized representatives, when requested, copies of such plans, drawings and specifications.
I. The leasing by the Borrower of all or part of the Premises for purposes other than the actual
occupancy by the lessee under, and pursuant to, a written lease in form and substance and with a lessee
reasonably satisfactory to the Lender.
J. The dissolution of the Borrower or the insolvency (failure to pay its debts as they mature or the
failure to maintain the fair salable value of its assets in an amount greater than its liabilities) of the Borrower,
or the filing by or against the Borrower, which is not removed within a reasonable period of time not to exceed
ninety (90) days, of any petition, arrangement, reorganization, or the like under any insolvency or bankruptcy
law, or the adjudication of the Borrower as a bankrupt, or the making of an assignment for the benefit of
creditors, or the appointment of a receiver or custodian for any part of any of the Borrower's properties, or a
calling of a meeting of creditors or liquidating agents or offering of a composition extension to creditors by,
for, or on behalf of the Borrower.
K. The insolvency (failure to pay its debts as they mature or the failure to maintain the fair salable
value of its assets in an amount greater than its liabilities) of any guarantor, or the filing by or against any
guarantor, which is not removed within a reasonable period of time not to exceed ninety (90) days, of any
petition, arrangement, reorganization, or the like under any insolvency or bankruptcy law, or the adjudication
of any guarantor as a bankrupt, or the making of an assignment for the benefit of creditors, or the appointment
of a receiver or custodian for any part of any of the guarantor’s properties, or a calling of a meeting of creditors
or liquidating agents or offering of a composition extension to creditors by, for, or on behalf of any guarantor.
L. The failure of the Borrower to keep in full force and effect any necessary permit or approval of
the Improvements and such failure is not remediated within thirty (30) days after notice from the Lender.
M. The breach of any material warranty or the untruth of any material representation when made
of the Borrower or any guarantor in the Loan Documents.
N. The passage or enforcement of any federal, state, or local law or the rendition of a final
decision of any court (other than a law or decision with respect to a tax upon the general revenues of the
Lender) in any way directly changing or affecting the Loan in any material respect or lessening the net income
thereon in a fashion which cannot be, and is not, corrected or reimbursed by the Borrower.
O. The sale, conveyance, or transfer, whether voluntary, by operation of law or otherwise, of all
or any portion of, or interest in, the Premises or the placing of any mortgage, lien or other encumbrance on the
Premises, or upon any sale, transfer of ownership or other change in the controlling interest in Borrower
without prior written consent of the Lender in any case or upon the death, incapacity, consolidation, merger,
dissolution, liquidation, insolvency or bankruptcy of the Borrower or any guarantor of the Loan. The Borrower
shall give prior written notice to the Lender of any such proposed sale, conveyance, transfer, change or
P. If the Borrower, or any guarantor of the Loan shall default under any other loan obligation to
Q. The failure by Borrower to obtain the Lender’s prior written consent, to be given or withheld
in Lender’s sole discretion, regarding any secondary financing obtained by the Borrower and/or secured by the
Premises or any part thereof or interest therein.
ARTICLE III. REMEDIES
Whenever an Event of Default has occurred, the Lender shall not be required to advance any part of
the remainder of the Loan and the Lender may take any one or more of the following remedial steps:
3.01 Acceleration. The Lender may declare, without demand or notice to the Borrower, the
outstanding principal amount of the Note and the interest accrued thereon, and the Mortgage Debt, to be due
and payable immediately, and upon such declaration such principal and interest and other sums shall
immediately become, and be, due and payable.
3.02 Foreclosure. The Lender may foreclose this Mortgage and exercise its rights as a secured party
for all or any portion of the Mortgage Debt which is then due and payable, subject to the continuing lien of this
Mortgage for the balance not then due and payable.
3.03 Possession of Premises; Appointment of Receiver.
A. The Lender may, at its option (1) enter upon and take possession and control of the Premises
and the Property Income with those rights and powers more particularly set forth in Section 3.03 C.; (2) make
application to a court of competent jurisdiction for and obtain the immediate ex parte appointment of a receiver
authorized to immediately enter upon and take possession and control of the Premises and the Property Income
with those rights and powers more particularly set forth in Section 3.03 C.; and (3) without taking possession
and control of the Premises, immediately commence action to collect directly all Property Income in the place
and stead of the Borrower with full rights and powers to notify all parties liable to make payments of Property
Income to make said payments directly to the Lender or its agents, and the Lender or its agents shall have the
further power and authority to sue for or otherwise collect and receive all Property Income.
B. THE BORROWER HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY
LAW ALL RIGHTS TO PRIOR NOTICE OR COURT HEARING IN CONNECTION WITH ANY ACTION
BY THE LENDER OF THE TYPES SET FORTH IN SECTION 3.03 A., AND THE BORROWER FURTHER
WAIVES ANY REQUIREMENT THAT THE LENDER PROVIDE ANY BOND, SURETY, OR OTHER
SECURITY IN CONNECTION WITH ANY SUCH ACTION.
C. In the event the Lender or a receiver enters upon and takes possession and control of the
Premises or the Property Income pursuant to Section 3.03 A., said person or entity shall in addition to such
other rights and powers as may subsequently be authorized, have the right and power to (1) operate, manage
and control the Premises and exercise all the rights and powers of the Borrower in its name or otherwise with
respect to the same; (2) complete the construction of the Improvements and make all necessary and proper
maintenance, repairs, replacements, and improvements to the Premises; (3) collect and receive all Property
Income; and (4) enforce all terms of existing contracts pertaining to the Premises and enter into such new
contracts as the Lender or the receiver may determine necessary in its sole discretion.
D. All Property Income collected by the Lender, the Lender’s agent or a receiver pursuant to
Section 3.03 A., shall be applied in such order of priority as the Lender may determine in its sole discretion to
(1) interest and principal due on the Mortgage Debt; (2) taxes, assessments and insurance premiums due with
respect to the Premises or the business operations conducted from the Premises; (3) all reasonable costs and
expenses of operating, maintaining, repairing and improving the Premises; and (4) the reasonable
compensation, salaries, expenses and disbursements of any agents, employees, attorneys or other
representatives of the Lender, the Lender's agent or the receiver in connection with the possession, control or
operation of the Premises and the business operations conducted therefrom.
E. The Lender, its agents, or any receiver acting pursuant to Section 3.03 A., shall in no event be
liable or accountable for more moneys than actually are received from the Premises during the period which the
Lender, its agent or any receiver actually, is in possession and control of the Premises. Neither the Lender, its
agents or any receiver shall be liable or accountable in any manner for the failure to collect Property Income for
any reason whatsoever.
F. All costs, expenses and liabilities of every character incurred by the Lender in completing
construction of, managing, operating and maintaining the Premises, not paid from Property Income as
hereinabove provided, shall constitute Lender advances pursuant to Section 3.04.
G. In the event of foreclosure, the Lender, its agent or any receiver acting pursuant to Section
3.03 A., may, if a deficiency exists, remain in possession of the Premises until (1) the foreclosure sale; (2) the
redemption of the Premises; or (3) the expiration of any redemption period of the United States of America
extending subsequent to the foreclosure sale. The Lender, its agents or the receiver shall incur no liability for,
nor shall the Borrower assert any claim or setoff as a result of, any action taken while the Lender, its agent or a
receiver is in possession of the Premises.
3.04 Lender Advances. The Lender may, without notice or demand, pay any expense or items
which the Borrower has failed to pay, or perform any act which the Borrower has failed to perform hereunder.
In such event such advances, together with interest thereon from the date advanced, at the interest rate allowed
under the Note shall be (1) added to the Mortgage Debt, (2) payable on demand by the Lender and (3) secured
by the lien of this Mortgage.
3.05 No Marshalling. The Lender shall not be (1) compelled to release, or be prevented from
foreclosing or enforcing this Mortgage upon all or any part of the Premises, unless the entire Mortgage Debt
shall be paid; (2) required to accept any part or parts of the Premises, as distinguished from the entire whole
thereof, as payment of the Mortgage Debt to the extent of the value of such part or parts; (3) compelled to
accept or allow any apportionment of the Mortgage Debt to or among any separate parts of the Premises; or (4)
prevented from selling the Premises in one or more parcels or as an entirety and in such manner and order as
the Lender in its sole discretion may elect.
3.06 Remedies Cumulative; Lender’s Discretion. No remedy conferred upon or reserved to the
Lender hereunder is or shall be deemed to be exclusive but shall be cumulative, and may be exercised in the
sole discretion of the Lender at any time, in any manner, and in any order, and shall be in addition to and
separate and distinct from every other remedy given the Lender under this Mortgage, the Note, or any other
Loan Documents, or now or hereafter existing in favor of the Lender at law or in equity or by statute. The
Lender, in exercising any remedy provided herein under which it may make reasonable payments or perform
actions which the Borrower has failed to do or make, may do so in its sole discretion whenever in its opinion
such payment or performance is necessary or desirable to protect the full security intended by this Mortgage.
3.07 No Waiver. Time and punctuality shall be of the essence in this Mortgage, but any delay or
failure by the Lender to exercise any right or remedy available to it upon the occurrence of an Event of Default
hereunder, shall not constitute a waiver of such Event of Default or relinquishment of the right in the future to
enforce strict compliance by the Borrower with all of the covenants, conditions and agreements herein, or of
the right to exercise any such rights or remedies if such Event of Default by the Borrower is continued or
repeated. No modification, amendment, change, or discharge of any term or provision of this Mortgage shall be
valid or binding unless the same is in writing and signed by the Lender and the Borrower. The Lender may
however, without notice to or the consent of the Borrower, any other person primarily or contingently liable for
the payment of the Mortgage Debt or the holders of any subordinate lien on the Property, (1) release any part of
the security described herein, (2) release the obligation of any person primarily or contingently liable for the
Mortgage Debt secured hereby, (3) extend the time for payment or otherwise modify the terms of the Mortgage
Debt of this Mortgage, and (4) take any additional security for the Mortgage Debt. No such release, extension,
modification or additional security shall impair or affect the lien of this Mortgage or its priority over any
subordinate lien and no such party shall be relieved of any liability by reason thereof.
3.08 No Merger. In the event the Lender shall acquire title to the Premises by conveyance from the
Borrower or as a result of the foreclosure of any other mortgage which the Lender at any time holds with
respect to the Premises, this Mortgage shall not merge in the fee of the Premises but shall remain and continue
as an existing and enforceable lien for the Mortgage Debt secured hereby until the same shall be released of
record by the Lender in writing.
ARTICLE IV. MISCELLANEOUS PROVISIONS
4.01 Future Advances. This is an “Open-End Mortgage” and the holder hereof shall have all of the
rights, powers and protection to which the holder of any Open-End Mortgage is entitled under Oklahoma law.
Upon request the Lender may, in its discretion, make future advances to the Borrower. Any future advance and
the interest payable thereon, shall be secured by this Mortgage when evidenced by a promissory note stating
that the note is secured hereby. At no time shall the principal amount of the debt secured by this Mortgage
exceed the original principal amount of the Note, nor shall the maturity of any future advance secured hereby
extend beyond the date on which the final principal payment is due on the Note.
4.02 Governing Law; Binding Effect. This Mortgage shall be governed by and construed,
interpreted, regulated and enforced in accordance with the applicable laws of the State of Oklahoma. All
covenants, conditions and agreements contained herein shall run with the land, and shall be binding upon and
inure to the benefit of the respective successors and assigns of the Lender and the Borrower.
A. Any notice or other communications permitted or required to be given under this Mortgage
shall be in writing, signed by the party giving or making the same, and shall be sent by overnight courier
service or mailed first class United States mail, postage prepaid, registered or certified mail, return receipt
requested, to the address which is set forth at the beginning of this Mortgage.
B. Any notice shall be deemed to be received on, and shall be effective from, the earlier of (1) the
date of the actual receipt of such notice, or (2) three days after same is deposited in the United States mail as
provided above, whether or not the same is actually received by such party. Any party hereto shall have the
right to change the address to which any such notice shall be sent by sending a notice in like manner to all
4.04 No Agency or Joint Venture. Nothing contained in this Mortgage shall be construed to cause
the Borrower to become the agent for, or joint venturer with, the Lender for any purpose whatsoever, nor shall
the Lender be responsible for any shortage, discrepancy, damage, loss or destruction of any part of the Property
for whatever cause unless same is the direct result of the gross negligence of the Lender.
4.05 Invalid Provisions. If any term or provision contained herein is judicially determined invalid or
unenforceable then the same shall either be severed from this Mortgage or if possible reduced in scope to the
extent necessary to be valid or enforceable.
4.06 Prejudgment Remedy Waiver. THE BORROWER REPRESENTS, WARRANTS AND
ACKNOWLEDGES THAT THE TRANSACTION OF WHICH THIS MORTGAGE IS A PART IS A
“COMMERCIAL TRANSACTION” AS DEFINED BY THE STATUTES OF THE STATE OF
OKLAHOMA. MONIES NOW OR IN THE FUTURE TO BE ADVANCED TO OR ON BEHALF OF
BORROWER ARE NOT AND WILL NOT BE USED FOR PERSONAL, FAMILY OR HOUSEHOLD
PURPOSES. THE BORROWER HEREBY WAIVES ALL RIGHTS TO NOTICE AND PRIOR COURT
HEARING OR COURT OR UNDER ANY OTHER STATE OR FEDERAL LAW WITH RESPECT TO
ANY AND ALL PREJUDGMENT REMEDIES THE LENDER MAY DESIRE TO EMPLOY TO
ENFORCE ITS RIGHTS AND REMEDIES HEREUNDER.
4.07 Jury Trial Waiver. THE BORROWER WAIVES TRIAL BY JURY IN ANY COURT IN
ANY SUIT, ACTION OR PROCEEDING ON ANY MATTER ARISING IN CONNECTION WITH OR IN
ANY WAY RELATED TO THE FINANCING TRANSACTIONS OF WHICH THIS MORTGAGE IS A
PART AND THE DEFENSE OR ENFORCEMENT OF ANY OF THE LENDER’S RIGHTS AND
REMEDIES. THE BORROWER ACKNOWLEDGES THAT IT MAKES THIS WAIVER KNOWINGLY,
WITHOUT DURESS, VOLUNTARILY AND ONLY AFTER EXTENSIVE CONSIDERATION OF THE
RAMIFICATIONS OF THIS WAIVER WITH ITS ATTORNEYS.
4.08 Cross-Default. The Borrower acknowledges that the Loan is cross-defaulted with current and
future financing accommodations extended or to be extended by the Lender to the Borrower so that a default
under any loan to the Borrower shall be an event of default hereunder and under all of the other loans.
4.09 Interpretation. In this Mortgage, unless the context otherwise requires:
A. Words of the masculine gender shall mean and include correlative words of the feminine and
neuter genders and words importing the singular number shall mean and include the plural number and vice
B. Any headings or captions preceding the texts of the several sections of this Mortgage shall be
solely for convenience of reference and shall not constitute a part of this Mortgage, nor shall they affect its
meaning, construction or effect.
4.10 No Violations of Governmental Prohibitions. Neither the making of the Loan, nor the receipt
of Loan proceeds by Borrower, violates any Law applicable to Borrower, including, without limitation, any of
the Terrorism Laws. Neither the making of the Loan, nor the receipt of the Loan proceeds by Borrower (a
“Principal Party”) violates any of the Terrorism Laws applicable to any of the Principal Parties. To Borrower’s
best knowledge, no holder of any direct or indirect equitable, legal or portion of the Loan proceeds will be
used, disbursed or distributed by Borrower for any purpose, or to any Person, directly or indirectly, in violation
of any Law including, without limitation, any of the Terrorism Laws. As used in this Agreement, the term
“Terrorism Laws” means Executive Order 13224 issued by the President of the United States of America, the
Terrorism Sanctions Regulations (Title 31 Part 595 of the U.S. Code of Federal Regulations), and the Foreign
Terrorist Organizations Sanctions Regulations (Title 31 Part 597 of the U.S. Code of Federal Regulations), and
all other present and future federal, state and local laws, ordinances, regulations, policies and any other
requirements of any Governmental Agency (including, without limitation, the United States Department of the
Treasury Office of Foreign Assets Control) addressing, relating to, or attempting to eliminate, terrorist acts and
acts of war, each as hereafter supplemented, amended or modified from time to time, and the present and future
rules, regulations and guidance documents promulgated under any of the foregoing, or under similar laws,
ordinances, regulations, policies or requirements of other States or localities.
4.11 Compliance with Governmental Prohibitions. No portion of the Loan proceeds will be used,
disbursed or distributed by Borrower for any purpose, or to any Person, in violation of any Law including,
without limitation, any of the Terrorism Laws. Borrower shall provide Lender with immediate written notice
(a) of any failure of any of the representations and warranties set forth in Section 17 of this Note to be true,
correct and complete in all respect at any time, or (b) if Borrower obtains knowledge that Borrower, or any
holder at any time of any direct or indirect equitable, legal or beneficial interest in Borrower is the subject of
any of the Terrorism Laws. Borrower shall immediately and diligently take, or cause to be immediately and
diligently taken, all necessary action to comply with all Terrorism Laws and to cause the representations and
warranties set forth in Section 17 of this Note and, if applicable, in Section 3.5 of the Guaranty to be true,
correct and complete in all respects.
NOW, THEREFORE, if all agreements and provisions contained herein are fully kept and performed
by the Borrower, and all the Mortgage Debt shall be fully paid in all respects, then this Mortgage shall be void;
otherwise to remain in full force and effect.
[INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the Borrower has executed this document this 2nd day of October, 2006.
Signed in the presence of:
______________________________ ARDMORE HOSPITALITY, LLC
Name: Calvin R. Bailey
Title: Managing Member
STATE OF LOUISIANA )
PARISH OF )
On this 2nd day of October, 2006, before me personally appeared Calvin R. Bailey, known to me to
be a Managing Member of Ardmore Hospitality, LLC, a limited liability company, who, being by me duly
sworn, acknowledged said instrument to be his free act and deed in his capacity as such ManagingMember, and
the free act and deed of said limited liability company.
Commissioner of the Superior Court
Description of Premises:
Copy of Commercial Promissory Note