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EXHIBIT 4.11
MORTGAGE AND SECURITY AGREEMENT
(INCLUDES FUTURE ADVANCES)
THIS MORTGAGE AND SECURITY AGREEMENT (INCLUDES FUTURE ADVANCES) dated
as of April 25, 1995 (the "Mortgage") is from STRIKER HOLDINGS, INC., a Texas
corporation (the "Company" having its principal office at Xxx Xxxxxxxx, Xxxxx
0000, Xxxxxxx, Xxxxx 00000 to FINOVA CAPITAL CORPORATION, a Delaware
corporation (the "Mortgagee" or "FINOVA") having its principal place of
business located at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
This Mortgage is also a Security Agreement and Financing Statement
under the Uniform Commercial Code of Arkansas and in compliance therewith the
following information is set forth:
1. The names and addresses of the Debtor and Mortgagee are:
Debtor: STRIKER HOLDINGS, INC.
Xxx Xxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Mortgagee: FINOVA CAPITAL CORPORATION
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
2. The property covered by this Mortgage, Security Agreement and
Financing Statement is described in the Granting Clauses hereof.
3. Some or all of the furniture, fixtures, equipment and other
property described herein is or may become fixtures.
4. The Company is the record owner of the real estate described
in Annex A attached hereto and made a part hereof.
RECITALS:
A. The Company has entered into a revolving credit Security
Agreement (Accounts Receivable, Inventory, Machinery and Equipment) dated as of
April 25, 1995, (the "Agreement") in which the Mortgagee agrees to provide to
the Company a revolving credit facility maturing three (3) years from date and
renewed from year to year thereafter, unless and until terminated pursuant to
the terms of the Agreement, which indebtedness shall consist of loans, advances
and other financial accommodations to or for the benefit of the Company of up
to: (a) 80% of the Net Amount of Eligible Accounts, as defined in the
Agreement, (or such greater or lesser percentage
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thereof as FINOVA shall, in its sole and absolute discretion determine); (b)
$590,000 based upon a percentage of the orderly liquidation value of the
Company's machinery and equipment (the "M & E Advance"). The M & E Advance
shall be repaid to FINOVA in installments in the amount of $9,850 per month
commencing on the last day of the month in which the Agreement is executed and
delivered to FINOVA and continuing on the last day of each month thereafter for
thirty-five (35) months at which time the entire balance of the M & E Advance
shall be paid to FINOVA. Notwithstanding the foregoing, FINOVA shall have the
right at any time to demand and receive the immediate repayment of the entire
balance of the M & E Advance in the event (a) of any default or termination
under the Agreement; (b) of any reduction in the value of the Borrower's
machinery and equipment; or (c) that FINOVA, in its sole and absolute
discretion, shall consider the M & E Advance insecure.
B. Pursuant to said Agreement, the Company is granting to FINOVA
a first perfected security interest in: (a) All of the Company's present and
future accounts; (b) all of the Company's monies, securities and other property
and the proceeds thereof, now or hereafter held or received by, or in transit
to, FINOVA from or for the Company, or for the account of the Company, whether
for safekeeping, pledge, custody, transmission, collection or otherwise, and
all of the Company's deposits (general or special) including, but not limited
to security deposits, balances, sum and credits with FINOVA at any time
existing or with a third party for the Company's account; (c) all of the
Company's present and future right, title and interest, and all of the
Company's present and future rights, remedies, security and liens, in, to and
in respect of the accounts as defined in the Agreement and other collateral, as
defined in the Agreement, including, without limitation, rights of stoppage
in transit, replevin, repossession and reclamation and other rights and
remedies of an unpaid vendor, lienor or secured party, guarantees or other
contracts of suretyship with respect to the accounts, deposits or other
security for the obligation of any Account Debtor, as defined in the Agreement,
and credit and other insurance; (d) all of the Company's present and future
right, title and interest in, to and in respect of all goods relating to, or
which by sale have resulted in, accounts including, without limitation, all
goods described in invoices, documents, contracts or instruments with respect
to, or otherwise representing or evidencing, any accounts or other collateral,
including without limitation, all returned, reclaimed or repossessed goods; (e)
all of the Company's present and future deposit accounts; (f) all of the
Company's present and future books, records, ledger cards, computer programs
(including all software and data contained in or by any computer whether in the
possession of the Company or any other party) and other property and general
intangibles evidencing or relating to the accounts and any other collateral or
any Account Debtor, together with the file cabinets, containers, tapes or
disks, in which the foregoing are stored ("Records"); (g) all of the Company's
presently owned or hereafter acquired inventory; (h) all of the Company's
machinery and equipment, whether presently owned or hereinafter acquired; (i)
all other of the Company's present and future general intangibles of every kind
and description, including, without limitation, customer lists, stock options,
patent, trademark and copy right applications, trade names and trademarks, and
the goodwill of the business symbolized thereby, patents, copyrights, licenses
and Federal, State and local tax refund claims, leases, rents and insurance
claims of all
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kinds; and (j) all proceeds of the foregoing, in any form, including, without
limitation, all claims against third parties for loss or damage to or
destruction of any or all of the foregoing.
C. In addition, the Company has agreed to unconditionally
guarantee the performance of all obligations and liabilities and payment of all
amounts due and payable, including any renewals, extensions, and modifications
thereof under the terms of three Security Agreements (Accounts Receivable,
Inventory Machinery and Equipment) entered on April 25, 1995, between FINOVA
and Striker Industries, Inc., a Delaware corporation, Striker Paper
Corporation, an Arkansas corporation, and Striker Services, Inc., a Texas
corporation, hereinafter the "Corporate Guaranty".
D. In order to further secure the payment of all Obligations (as
that term is defined in Section 1.12 of the Agreement) under the Agreement and
under the said Corporate Guaranty, the Company is hereby granting to FINOVA a
first mortgage in certain Real Property and other Collateral as hereafter
defined and described in the Granting Clauses herein.
E. All amounts due and payable and all obligations and
liabilities, including all renewals, extensions and modifications thereof, and
the performance by the Company of its obligations and agreements under and
pursuant to the Agreement or this Mortgage and the other Security Documents as
hereinafter defined, are fully and unconditionally guaranteed by Xxxxx X.
Xxxxxxx, Xxxxxxx X. Xxxx and Xxxxxx X. Xxxxxx pursuant to a Guaranty Agreement
dated as of April 25, 1995 from Guarantors to the Mortgagee.
F. All indebtedness and Obligations (as that term is defined in
Section 1.12 of the Agreement), all fees and additional amounts and other sums
at any time due and owing from, or required to be paid by the Company under the
terms of the Agreement, this Mortgage, the Corporate Guaranty and any other
security documents executed by Company to secure same (hereinafter "Security
Documents"), or any other note, mortgage or security agreement executed and
delivered by the Company pursuant to the Agreement or the Corporate Guaranty
and any extensions, renewals or modifications of any of the above are
hereinafter sometimes referred to as the "Indebtedness Hereby Secured".
G. The Company is duly authorized under all applicable provisions
of law, its Certificate of Incorporation and By-laws to issue, execute, and
deliver this Mortgage and to convey, assign and grant a security interest in
the Collateral (as hereinafter defined) to the Mortgagee, as security for the
Indebtedness Hereby Secured and all corporate action and all consents,
approvals and other authorizations and all other acts and things necessary to
make this Mortgage the valid, binding and legal instrument for the security of
the Indebtedness Hereby Secured have been done and performed.
NOW, THEREFORE, THIS MORTGAGE WITNESSETH that the, Company, in
consideration of the premises and of the sum of Ten Dollars ($10.00) received
by the Company from the Mortgagee and other good and valuable consideration,
receipt whereof is hereby
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acknowledged, and in order to secure the payment of the said Obligations
evidenced by the said Agreement, the said Corporate Guaranty and the payment of
all other Indebtedness Hereby Secured and the performance and observance of all
the covenants, agreements and conditions contained in this Mortgage, the
Security Documents, the Corporate Guaranty and the Agreement, the Company does
hereby warrant, mortgage, pledge, assign, bargain, hypothecate, convey, grant,
transfer, grant a first perfected security interest in and set over unto the
Mortgagee and its successors and assigns, all of its estate, right, title and
interest in and to all and singular the following described properties, rights,
interest and privileges and all of the, Company's estate, right, title and
interest therein, thereto and thereunder, if any (all of which properties
hereby mortgaged, assigned, pledged and in which a first perfected security
interest has been granted or intended so to be are hereinafter collectively
referred to as the "Collateral"):
GRANTING CLAUSES
I. REAL PROPERTY
The parcels of land in Ouachita County, State of Arkansas described in
Annex A attached hereto and made a part hereof, together with the entire
interest of the Company in and to all buildings, structures, improvements and
appurtenances now standing, or at any time hereafter construed or placed, upon
such land, including all right, title and interest of the Company, if any, in
and to all building material, building equipment and fixtures of every kind
and nature whatsoever on said land or in any building, structure or improvement
now or hereafter standing on said land which are classified as fixtures under
applicable law and which are, used in connection with the operation,
maintenance or protection of said buildings, structures and improvements as
such (including, without limitation, all air conditioning, ventilating,
plumbing, heating, lighting and electrical systems and apparatus, all
communications equipment and intercom systems and apparatus, all sprinkler
equipment and apparatus and all elevators and escalators) and the reversion or
reversions, remainder or remainders, in and to said land, and together with the
entire interest of the Company in and to all and singular the tenements,
hereditaments, easements, rights of way, rights, privileges and appurtenances
to said land, belonging or in anywise appertaining thereto, including, without
limitation, the entire right, title and interest of the Company in, to and
under any xxxxxxx, xxxx, xxxxxx, xxxxx or strips of land adjoining said land,
and all claims or demands whatsoever of the Company either in law or in equity,
in possession or expectancy, of, in and to said land, it being the intention of
the parties hereto that, so far as may be permitted by law, all property of the
character hereinabove described, which is now owned or is hereafter acquired by
the Company and is affixed or attached or annexed to said land, shall be and
remain or become and constitute a portion of said land and the, security
covered by and subject to the Lien of this Mortgage, together with all
accessions, parts and appurtenances appertaining or attached thereto and all
substitutions, renewals or replacements of and additions, improvements,
accessions and accumulations to any and all thereof, and together with all
rents and the present and continuing right to make claim for, collect, receive
and receipt for any and all of such rents (all of which properties are
hereinafter referred to as the "Real Property").
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II. TRADE PROPERTY
All materials, furniture, furnishings, machinery, goods, fixtures,
equipment to be erected or located on the Real Property and including, but
not limited to, all heating, plumbing, lighting, water heating, cooking,
laundry, refrigerating, incinerating, communications, ventilating and
air conditioning equipment, disposals, dishwashers, recreational, lawn
maintenance equipment, sprinkler systems, fire extinguishing apparatus and
equipment, water tanks, engines, machines, boilers, dynamos, stokers,
elevators, motors, cabinets, shades, blinds, partitions, window screens, screen
doors, storm windows, awnings, drapes, rugs, and other floor coverings,
furniture, furnishings, radios and television sets and wiring and antennae
therefor, and all fixtures, accessions and appurtenances thereto, and all
renewals or replacements of or substitutions for any of the foregoing, together
with all other goods, equipment, furnishings, fixtures, machinery and furniture
owned by the Company now or hereafter attached or affixed to or used in and
about the building or buildings now erected or hereafter to be erected on the
Real Property, or otherwise located on the Real Property and all fixtures,
accessions and appurtenances thereto, and all renewals or replacements of or
substitutions for any of the, foregoing (all of which properties are
hereinafter referred to as "Trade Property").
III. CONDEMNATION AWARDS AND PAYMENTS
All judgments, awards of damages, settlements and other compensation
heretofore or hereafter made resulting from condemnation proceedings or the
taking of the Real Property or any part thereof or any improvements now or at
any time hereafter located thereon or any easement or other appurtenances
thereto under the power of eminent domain, or any similar power or right
(including any award from the United States Government at any time after the
allowance of the claim therefor, the ascertainment of the amount thereof and
the issuance of the warrant for the payment thereof), whether permanent or
temporary, or for any damage (whether caused by such taking or otherwise) to
said Real Property or any part thereof or the improvements thereon or any part
thereof, or to any rights appurtenant thereto, including severance and
consequential damage, and any award for change of grade of streets
(collectively, "Condemnation Awards").
IV. PROCEEDS
All proceeds of the conversion, voluntary or involuntary, of any of
the foregoing into cash or other liquidated claims, including, without
litigation, all proceeds and payments of insurance, related to the Collateral.
SUBJECT HOWEVER, as to all property or rights in property at any time
subject to the Lien hereof (whether now owned or hereafter acquired), to
Permitted Encumbrances, as defined in Section 1.8 hereof.
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TO HAVE AND TO HOLD the Collateral unto the Mortgagee and its
successors and assigns forever for the purpose of securing performance of each
agreement, covenant and warranty of the Company contained in the Agreement, the
Corporate Guaranty, this Mortgage, the Security Documents and payment of the
Indebtedness Hereby Secured. It is understood and agreed that this Mortgage is
to secure the obligation of the Company to repay, without preference or
priority, all sums due or to become due in respect to the indebtedness pursuant
to the Agreement and the Corporate Guaranty, including those sums heretofore
advanced, those of even date herewith and those to be earned or advanced in the
future as specified in said Agreement and the Corporate Guaranty. THIS
CONVEYANCE SHALL ALSO STAND AS SECURITY FOR ALL FUTURE ADVANCES AND ANY
ADDITIONAL INDEBTEDNESS OF THE COMPANY TO MORTGAGEE, WHETHER IT BE INCURRED FOR
ANY BUSINESS OR NON-BUSINESS PURPOSE THAT WAS RELATED, WHOLLY UNRELATED, SIMILAR
OR DISSIMILAR TO THE PURPOSE OF THE ORIGINAL OBLIGATIONS AND INDEBTEDNESS
EVIDENCED BY THE AGREEMENT AND/OR THE CORPORATE GUARANTY.
PROVIDED NEVERTHELESS, and these presents are upon the express
condition that if the Company performs the covenants herein contained and the
Mortgagee is paid the full amount of all indebtedness and all other sums due or
payable hereunder, under the Agreement, the Corporate Guaranty or under the
Security Documents and all other Indebtedness Hereby Secured, the estate, right
and interest of the Mortgagee in the property hereby conveyed and granted a
first perfected security interest in shall cease and this Mortgage shall become
null and void, but otherwise to remain in full force and effect.
It is agreed and understood by the parties hereto that:
1. Any part of the security herein described, and any
security described in the Agreement, the Corporate Guaranty, Security
Documents or any other mortgage or other instrument now or hereafter
given to secure the Indebtedness Hereby Secured, may be released by or
at the direction of the Mortgagee without affecting the Lien hereof on
the remainder or the obligations of the Company on and in respect of
the Indebtedness Hereby Secured and any person acquiring any direct or
indirect interest in the security herein described or in any security
described in the Agreement, the Corporate Guaranty or Security
Documents or any other mortgage, or other instrument now or hereafter
given to secure the Indebtedness Hereby Secured shall take the same
subject to all of the provisions hereof.
2. The Company for itself and all who may claim through
or under it waives to the extent permitted by law any and all right to
have the property and estates comprising the Collateral or any other
property of the Company constituting security for the Indebtedness
Hereby Secured marshalled upon any foreclosure of the Lien hereof, or
to have the Collateral hereunder and the property covered by any other
mortgage or deed of trust securing the Indebtedness Hereby Secured
marshalled upon any foreclosure of any
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of said mortgages or deeds of trust, and agrees that any court having
jurisdiction to foreclose such Lien may order the Collateral sold as
an entirety.
3. Upon the occurrence and during the continuance of any
Event of Default hereunder the Mortgagee has, among other things, the
right to foreclose on the Collateral and dispose of the same. The
Mortgagee's deed (if permitted by law) or Sheriff's deed or other
instrument of conveyance, transfer or release (which, if permitted by
law, may be executed by the Mortgagee in its own name or as
attorney-in-fact for the Company and the Mortgagee is hereby
irrevocably appointed attorney-in-fact for the Company to, in the
event that an Event of Default shall have occurred and be continuing,
so execute such deed or other instruments of conveyance, transfer or
release) shall be effective to convey and transfer to the grantee an
indefeasible title to the property covered thereby, discharged of all
rights of redemption (to the extent permitted by law) by the Company
or any person claiming under it, and to bar forever all claims by the
Company or the Mortgagee to the property covered thereby and no
grantee from the Mortgagee or Sheriff shall be under any duty to
inquire as to the authority of the Mortgagee or Sheriff to execute the
same, or to see to the application of the purchase money.
SECTION 1. DEFINITIONS.
Except as otherwise specifically provided herein, the following terms
shall have the following meanings for all purposes of this Mortgage:
"Account", "Chattel Paper", "Documents", "General Intangibles",
"Instruments", "Inventory", "Patents", "Securities", "Trademarks," and
"Tradenames" shall each have the meaning set forth in the Uniform Commercial
Code.
"Agreement" shall have the meaning ascribed to it in Recital A of this
Mortgage.
"Company" shall mean not only Striker Holdings, Inc., but also its
successors and assigns.
"Default" shall mean any event which would constitute an Event of
Default as that term is defined in Section 8.1 of the Agreement if all
requirements in connection therewith for the giving of notice, the lapse of
time and the happening of any further condition, event or act had been
satisfied.
"Default Rate" shall mean the rate set forth in Paragraph 3.2 of the
Agreement.
"Eligible Investments" shall mean:
(a) Investments in commercial paper maturing in 270 days or less
from the date of issuance which, at the time of acquisition thereof, is
accorded the highest rating by at least two
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of the following rating agencies: Standard & Poor's Corporation, Xxxxx'x
Investors Service, Inc. or Duff & Xxxxxx;
(b) Investments in direct obligations of the United States of
America or any agency or instrumentality of the United States of America, the
payment or guarantee of which constitutes a full faith and credit obligation of
the United States of America, in either case, maturing in twelve months or less
from the date of acquisition thereof;
(c) Investments in certificates of deposit maturing within one
year from the date of issuance thereof, issued by a bank or trust company
organized under the laws of the United States or any state thereof, having
capital, surplus and undivided profits aggregating at least $500,000,000 and
whose long-term certificates of deposit are, at the time of acquisition
thereof, rated AA or better by Standard & Poor's Corporation or Aa or better by
Xxxxx'x Investors Service, Inc; and
(d) Investments in Federally tax-exempt municipal bonds maturing
in twelve months or less from the date of acquisition thereof and, at the time
of acquisition, is rated "AAA" or better by Standard & Poor's Corporation or
"Aaa" or better by Xxxxx'x Investors Service, Inc.
"Environmental Claim" shall mean any written administrative,
regulatory or judicial action, judgment, order, consent decree, suit, demand,
demand letter, claim, lien, notice of noncompliance or violation, enforcement
or adjudicatory proceeding arising (a) pursuant to any Environmental Law or
Governmental Approval issued under any such Environmental Law, (b) from the
presence, use, generation, storage, treatment, Release, threatened Release,
disposal, remediation or other existence of any Hazardous Substance, (c) from
any removal, remedial, corrective or other response action pursuant to an
Environmental Law or the order of a Governmental Authority, (d) from any third
party seeking damages, contribution, indemnification, cost recovery,
compensation, injunctive relief in connection with a Hazardous Substance
arising from alleged injury or threat of injury to health, safety, natural
resources or the environment, or (e) from any lien in favor of a Governmental
Authority or other Person in connection with a Release, threatened Release or
disposal of a Hazardous Substance.
"Environmental Law" shall mean any international, federal, state or
local statute, law, regulation, order, consent decree, judgment, permit,
license, code, covenant, deed restriction, common law, treaty, convention,
ordinance or other legal requirement relating to public health, safety or
protection of the environment, including, without limitation, those relating to
releases, discharges or emissions to air, water, land or groundwater, to the
withdrawal or use of groundwater, to the use and handling of polychlorinated
biphenyls or asbestos, to the disposal, treatment, storage or management of
hazardous or solid waste, or Hazardous Substances or crude oil, or any fraction
thereof, or to exposure to toxic or hazardous materials, to the handling,
transportation, discharge or release of gaseous or liquid Hazardous Substances
and any regulation, order, notice or demand having the force and effect of law
issued pursuant to such law, statute or ordinance, in each case applicable to
the property of the Company, Holdings or their Subsidiaries or the operation,
construction or modification of any thereof, including without limitation the
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following: the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended by the Superfund Amendments and
Reauthorization Act of 1986, the Solid Waste Disposal Act, as amended by the
Resource Conservation and Recovery Act of 1976 and the Hazardous and Solid
Waste Amendments of 1984, the Hazardous Materials Transportation Act, as
amended, the Federal Water Pollution Control Act, as amended by the Clean Water
Act of 1976, the Safe Drinking Water Control Act, the Clean Air Act of 1966, as
amended, the Toxic Substances Control Act of 1976, the Occupational Safety and
Health Act of 1977, as amended, the Emergency Planning and Community
Right-to-Know Act of 1986, the National Environmental Policy Act of 1975, the
Oil Pollution Act of 1990 and any similar or implementing state law, and any
state statute and any further amendments to these laws providing for financial
responsibility for cleanup or other actions with respect to the release or
threatened release of Hazardous Substances or crude oil, or any fraction
thereof and all rules, regulations, guidance documents and publication
promulgated thereunder.
"Event of Loss" with respect to the Collateral shall mean the loss or
destruction of the Collateral or a substantial portion thereof, which shall
include, without limitation, damage which renders repair impractical or
uneconomical, or any other event which shall render the Collateral permanently
unfit for use.
"Governmental Authority" shall mean any international, foreign,
federal, state, regional county, local or other governmental authority.
"Guaranty Agreement" shall have the meaning assigned thereto in
Recital C hereof.
"Hazardous Substance" shall mean any hazardous, or toxic chemical,
waste, byproduct, pollutant, contaminant, compound, product or substance,
including, without limitation, asbestos, polychlorinated biphenyls, petroleum
(including crude oil or any fraction thereof), and any material the exposure,
to, or manufacture, possession, presence, use generation, storage,
transportation, treatment, release, disposal, abatement, cleanup, removal,
remediation or handling of which, is prohibited, controlled or regulated by any
Environmental Law.
"Impositions" shall have the meaning assigned thereto in Section
2.7(a) hereof.
"Lien" shall mean any interest in property securing an obligation owed
to, or a claim by, a Person other than the owner of the property, whether such
interest is based on the common law, statute or contract, and including but not
limited to the security interest lien arising from a mortgage, encumbrance,
pledge, conditional sale or trust receipt or a lease consignment or bailment
for security purposes. The term shall include reservations, exceptions,
encroachments, easements, rights-of-way, covenants, conditions, restrictions,
leases and other title exceptions and encumbrances; (including, with respect to
stock, stockholder agreements, voting trust agreements, buy-back agreements and
all similar arrangements) affecting property.
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"Material Adverse Effect" shall mean any change or changes or effect
or effects that individually or in the aggregate are or are reasonably likely
to be materially adverse to (a) the assets, business, operations, income or
condition (financial or otherwise) of the Company, (b) transactions
contemplated by this Agreement or the Corporate Guaranty, or (c) the ability of
the Company perform its respective obligations under this Agreement, the
Corporate Guaranty, Security Documents, or this Mortgage.
"Permitted Encumbrances" shall mean the liens described in clauses (a)
through (j) of Section 2.8.
"Person" shall mean an individual, partnership, corporation, trust or
unincorporated organization.
"Restoration" shall have the meaning assigned hereto in Section 3.1(a)(1)
hereof.
"Subsidiary" shall mean any corporation of which more than 50% (by
number of votes) of the Voting Stock is owned and controlled by the Company
and/or one or more corporations which are Subsidiaries.
"Trade Property" shall have the meaning ascribed to it in Granting Clause of
this Mortgage.
"Uniform Commercial Code" shall mean the Uniform Commercial Code as in
effect in the State of Arkansas, as amended.
"Voting Stock" shall mean securities of any class or classes of a
corporation, the holders of which are ordinarily, in the absence of
contingencies, entitled to elect a majority of the corporate directors (or
Persons performing similar functions);
SECTION 2. GENERAL COVENANTS AND WARRANTIES.
The Company covenants, warrants and agrees as follows:
Section 2.1. Agreement and Mortgage Covenants. Each and all of the
provisions, restrictions, covenants and agreements set forth in the Agreement
and the Corporate Guaranty and in each and every supplement thereto or
amendment thereof which at any time or from time to time may be executed and
delivered by the parties thereto or their successors and assigns, are
incorporated herein by reference to the same extent as though each and all of
said terms, provisions, restrictions, covenants and agreements were fully set
out herein and as though any amendment or supplement to the Agreement and
Corporate Guaranty were fully set out in an amendment or supplement to this
Mortgage; and the Company does hereby covenant and agree well and truly to
abide by, perform and be governed and restricted by each and all of the matters
provided for by the Agreement and Corporate Guaranty and so incorporated herein
to the same extent and with the same force and effect as if each and all of
said terms, provisions, restrictions, covenants and agreements so incorporated
herein by reference were set out and repeated herein
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at length, Without limiting the foregoing, the Company covenants and agrees to
pay all taxes, assessments and governmental charges or levies imposed upon this
Mortgage or the Indebtedness Hereby Secured (other than income taxes of the
Mortgagee).
Section 2.2. Ownership of Collateral. The Company covenants and
warrants that it has fee simple title to the Real Property and good and
marketable title to the other Collateral hereinbefore conveyed to the Mortgagee
free and clear of all liens, charges and encumbrances whatever except Permitted
Encumbrances, and the Company has full right, power and authority to convey,
transfer, mortgage arid grant a first perfected security interest in the same to
the, Mortgagee for the uses and purposes in this Mortgage set forth; and the
Company will warrant and defend the title to the Collateral against all claims
and demands whatsoever except Permitted Encumbrances.
Section 2.3. Further Assurances. The Company will, at its own
expense, do, execute, acknowledge and deliver all and every further reasonable,
act, deed, conveyance, transfer and assurance necessary or proper for (a) the
better assuming, conveying, assigning and confirming unto the Mortgagee all of
the Collateral, or property intended so to be, whether, now owned or
hereafter acquired and (b) the perfection of the first security interest
provided for in the Collateral whether now owned or hereafter acquired. The
Mortgagee, as secured party, to the extent permitted by law, may file one or
more financing statements disclosing its security interest in any or all of the
Collateral without the Company's signature appearing thereon. The Company also
hereby grants the Mortgagee, as such secured party a power of attorney to
execute any such financing statement, or amendments and supplements to
financing statements, on behalf of the Company without notice thereof to the
Company, which power of attorney is coupled with an interest and is irrevocable
until the Indebtedness Hereby Secured has been fully satisfied.
Section 2.4. Payment of Principal and Interest. The Company will
duly and punctually pay the principal and interest on all loans, advances,
financial accommodations, obligations and indebtedness evidenced by the
Agreement and the Corporate Guaranty secured hereby according to the terms
thereof
Section 2.5. Maintenance Of Collateral, Other Liens, Compliance
with Laws, tens, Environmental Matters, Etc. Without limiting the provisions of
the Agreement, (a) the Company shall (1) promptly repair, restore, replace, or
rebuild any material buildings, improvements or Trade Property now or hereafter
on the Real Property which may become damaged or be destroyed, (2) keep the
Collateral in good condition and repair, ordinary wear and tear excepted,
without waste, and free from all claims, liens, charges and encumbrances
(except for claims, liens, charges and encumbrances that are being contested
under and in compliance with Section 2.7(c) hereof) other than Permitted
Encumbrances, (3) pay when due any indebtedness which may be secured by a Lien
or charge on the Collateral and upon request provide satisfactory evidence of
the discharge of such Lien to the Mortgagee (unless such payment is being
contested under and in compliance with Section 2.7(c)), (4) comply with all
requirements of law or municipal ordinances, including without limitation all
Environmental Laws, with respect to the Collateral and the use
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thereof, failure to comply with which would be reasonably likely to result in
any material interference with the use or operation of the Collateral by the
Company or would materially adversely affect the assets, business, operations,
income or condition (financial or otherwise) of the Company and its
Subsidiaries, taken as a whole, and (5) make no material alterations in said
Collateral except as required by law or municipal ordinance; provided that the
Company may make such other material alterations so long as such alterations
are completed in compliance with the requirements of paragraphs (b) and (c) of
this Section 2.5.
(b) The Company may, at its expense, (1) construct upon the
Collateral additional buildings, structures and other improvements and (2)
install, assemble and place upon the Collateral any items of Trade Property,
signs, furniture, furnishings, equipment, machinery and other tangible personal
property used or useful in the Company's business, in each case upon compliance
with the provisions of paragraph (a) of this Section 2.5. All such buildings,
structures and other improvements shall be and remain part of the realty and
shall be subject to this Mortgage with respect thereto.
(c) Any repair, restoration, rebuilding, substitution,
replacement, modification, alteration of or addition to the Collateral pursuant
to Section 2.5(b) must not materially impair the market value, structural
integrity or usefulness of the Collateral for use in the ordinary course of
business; shall be performed in a good and workmanlike manner and be
expeditiously completed in compliance in all material respects with all laws,
ordinances, orders, rules, regulations and requirements applicable thereto,
including to the extent necessary to maintain in full force and effect the
policies of insurance required by Section 2.6 hereof. All costs and expenses of
each such repair, restoration, rebuilding, substitution, replacement, the
discharge of all liens filed against the Collateral arising out of the same,
together with all costs and expenses necessary to obtain any permits or
licenses required in connection therewith shall be promptly paid by the Company
(except to the extent such costs and expenses are being contested under and in
compliance with Section 2.7(c)).
(d) The Company:
(1) shall maintain the Collateral in compliance in all material
respects with any applicable Environmental Law;
(2) shall require that all of its tenants and subtenants at the
Collateral comply in all material respects with any applicable
Environmental Law;
(3) shall obtain and maintain in full force and effect all
material Governmental Approvals required for its operations at or on
the Collateral by any applicable Environmental Law;
(4) shall cure any violation of applicable Environmental Law by
any Person at the Collateral;
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(5) shall not, and shall not permit any other Person to,
own or operate on the Collateral any (i) landfill or dump or (ii)
hazardous waste treatment, storage or disposal facility as defined
pursuant to RCRA or any comparable state law;
(6) shall not use, generate, treat, store, release or
dispose Hazardous Substances at or on the Collateral except in the,
ordinary course of its business;
(7) shall within ten (10) Business Days notify the
Mortgagee in writing, of and provide any reasonably requested
documents, upon learning of any of the following which arise in
connection with the Collateral:
(A) any material liability for response or
corrective action, natural resource damage or other harm
pursuant to CERCLA, RCRA or any comparable state law;
(B) any material Environmental Claim,
(C) any material violation of an Environmental
Law or Release of a Hazardous Substance;
(D) any material restriction on the ownership,
occupancy, use or transferability arising pursuing to any (1)
Release, threatened Release, or disposal of a Hazardous
Substance or (ii) Environmental Law; or
(E) any other environmental, natural resource,
health or safety condition, which would reasonably be expected
to have a Material Adverse Effect; and,
(8) at its expense, will conduct any investigation,
study, sampling and testing, and undertake any cleanup, removal,
remedial or other response action necessary to remove, clean up or
xxxxx any material quantity of Hazardous Substance Released or
disposed at or on the Collateral as required by any applicable
Environmental Law and any order or directive from a Governmental
Authority having jurisdiction, except to the extent the Company is
reasonably contesting any Environmental Law or any order or directive
from a Governmental Authority, so long as (i) such contest is in good
faith and by appropriate proceedings, (ii) adequate reserves are
maintained in accordance with GAAP and (iii) no forfeiture will result
from a failure to comply with the contested requirement.
(e) The Company at its own expense and at the reasonable written
request of the Mortgagee shall provide reasonably expeditiously an
environmental report of reasonable scope, form and depth by a consultant
reasonably acceptable to the Mortgagee as to any matter for which notice is
provided pursuant to Section 2.5(d)(7) above or which may reasonably be
believed
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by the Mortgagee to form the basis of an Environmental Claim in connection with
the Collateral. If such a requested environmental report is not delivered
within seventy-five (75) days after receipt of the Mortgagee's request, then
the Mortgagee may arrange for same, and the Company hereby grants to the
Mortgagee and its representatives access to the Collateral and a license to
undertake such an assessment. The reasonable cost of any assessment arranged
for by the Mortgagee pursuant to this provision will be payable by the Company
on demand and added to the obligations secured by this Mortgage and the other
Security Documents.
(f) The Company may use and operate the Collateral for any lawful
purpose not inconsistent with the provisions of the Agreement.
Section 2.6. Insurance. The Company shall, at Company's sole cost and
expense, obtain and maintain or cause to be obtained and maintained in some
company or companies (having a Best's rating of A:XI or better) approved by
FINOVA:
(a) Comprehensive public liability insurance covering claims for
bodily injury, death, and property damage, with such minimum limits as FINOVA
shall, from time to time, specify, but in any event not less than those amounts
customarily maintained by owners of substantially similar property; and
(b) During the course of construction and until all improvements
have been completed, a standard form Builder's Risk Policy on a replacement
cost basis, with an "all risk" endorsement, a course of construction
endorsement, and with a collapse insurance provision, in an amount approved by
FINOVA, with loss payable to the FINOVA under a lender's loss payable
endorsement; and
(c) If any of the Mortgaged Property is within an area known as a
"special flood hazard area" as defined in the Flood Disaster [Protection Act of
1973, a Standard Flood Insurance Policy on the Mortgaged Property as required
by the Act or in the amount of the Indebtedness Hereby Secured, which is
greater; and
(d) Statutory workmen's compensation insurance and employer's
liability insurance for all persons working in or about the Mortgaged Property;
and
(e) Business interruption or loss of rents insurance in a minimum
amount specified by FINOVA; and
(f) hazard insurance upon the Improvements and Tangible Personal
Property, insuring against loss by fire and all other hazards covered by
extended coverage and special extended coverage endorsements (including but not
limited to loss by windstorm, hail, flood, earthquake, tornado, explosion,
riot, aircraft, smoke, vandalism, malicious mischief and vehicle damage) as
FINOVA, in its sole discretion, shall from time to time require, all such
insurance to be issued in such form, with such deductible provision, and for
such amount (which shall, in any event be
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at least equal to the full replacement value of the Collateral) as shall be
satisfactory to FINOVA; and
(g) Such other insurance as the Beneficiary may, from time to time,
reasonably require by notice in writing to the Grantor.
All required insurance policies shall provide for not less than thirty
(30) days' prior written notice to FINOVA of any cancellation, termination, or
material amendment thereto. The Company will cause all policies of hazard
insurance, business interruption insurance and loss of rents insurance to be
payable to FINOVA pursuant to a standard mortgagee clause acceptable to FINOVA
and shall have FINOVA named as loss payee pursuant to a standard loss payee
clause acceptable to FINOVA; and the Company will cause all liability insurance
policies to name FINOVA as additional insured, if FINOVA so requires. Each such
policy shall, in addition, provide that there shall be no recourse against
FINOVA for payment of premiums or other amounts with respect thereto. Hazard
insurance policies shall contain the agreement of the insurer that any loss
thereunder shall be payable to FINOVA notwithstanding any action, inaction or
breach of representation or warranty by the Company. The Company will deposit
said policy or policies of insurance with the FINOVA as further security for
the Obligations, no responsibility for the approval or maintenance of any
insurance (required to be maintained pursuant hereto) being imposed upon
FINOVA. In the event of damage to or destruction of the Collateral by fire or
other casualty, the net proceeds of the insurance shall be applied upon the
Obligations in such manner as FINOVA may elect; or, at the option of FINOVA,
such proceeds may be released to the Company to be used to restore such
property to its former condition. Any insurance policies furnished FINOVA shall
become its property in the event FINOVA becomes the owner of the Mortgaged
Property by foreclosure or otherwise. FINOVA is hereby authorized and
empowered, at its option, to adjust or compromise any loss under any insurance
policies, and to collect and receive the proceeds from any such policy or
policies.
Section 2.7. Payment of Taxes and Other Charges; Contests Thereof.
(a) Without limiting the provisions of the Agreement or the Corporate Guaranty,
the Company will pay and discharge, before the same shall become delinquent,
together, with interest and penalties thereon, if any, (1) all taxes,
assessments (including assessments for benefits from public works or
improvements whenever begun or completed), levies, fees, water and sewer rents
and charges, and all other Governmental charges, general and special, ordinary
and extraordinary, and whether or not within the contemplation of the parties
hereto, which are at any time, levied upon or assessed against it or the
Collateral or any part thereof or upon this Mortgage or the Indebtedness
Secured Hereby, or upon the revenues, rents, issues, income and profits in
respect of the Collateral, or arising, in respect of the occupancy, use or
possession thereof, which failure to pay would result in the creation of a Lien
upon the Collateral or any part thereof, or upon the revenues, rents, issue,
income and profits of the Collateral or in the diminution thereof or would
result in any material interference with the use or operation of the Collateral
by the Company, (2) all corporate franchise, excise and other taxes, fees and
charges assessed, levied or imposed in respect of its corporate existence or
its right to do business in any state, (3) all income, excess
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profits, excise, sales, franchise, gross receipts and other taxes, duties or
imposts, whether of a like or different nature, assessed, levied or imposed by
any governmental authority on it or the Collateral, or any portion thereof, or
upon the revenues, rents, issues, income and profits of the Collateral whether
or not the failure to pay any such tax, duty or impost might in the creation of
a Lien upon any asset of the, Company or the Collateral or any part thereof or
upon the revenues, rents, issues, income and profits of the Collateral or in
the diminution thereof, and whether or not any such tax, duty or impost is
payable directly by the Company or is subject to withholding at the source and
(4) all lawful claims and demands of mechanics, laborers, materialmen and
others which, if unpaid, might result in the creation of a Lien on the
Collateral or upon the revenues, rents, issues, income and profits of the
Collateral and, in general, will do or cause to be done everything necessary so
that the Lien hereof shall be fully preserved at the cost of the Company,
without expense to the Mortgagee (all of which taxes, assessments, levies, fees
and other governmental or non-governmental charges, claims and demands of like
nature are hereinafter, referred to as (Impositions"). The Company shall
discharge any claims or Lien relating to Impositions upon the Collateral.
(b) The Company will pay when due all utility charges which are
incurred by the Company for the benefit of the Collateral or which may become a
charge or Lien against the Collateral for gas, electricity, water or sewer
services furnished to the Collateral and all other assessments or charges of a
similar nature, whether public or private, affecting the Collateral or any
portion thereof, whether or not such taxes, assessments or charges are or may
become Liens thereon.
(c) Contest. Without limiting the Agreement or the Corporate
Guaranty, and always subject to the terms and conditions thereof, the Company
may, in good faith and with reasonable diligence and by appropriate proceedings
diligently prosecuted, contest or cause to be contested the validity or amount
of any such Impositions, provided that:
(1) such contest shall have the effect of preventing (i)
sale, forfeiture of loss of the Collateral or any part thereof or
interest therein to satisfy the same, and (ii) any material
interference with the value, use or occupancy of the Collateral or any
part thereof; and
(2) the Company shall have established with respect to
such Impositions (and any attendant penalties or late fees) reserves
deemed by it to be adequate reserve with respect thereto.
Section 2.8. Limitation on Liens. The Company will not create or incur
or suffer to be incurred or to exist, any mortgage, pledge, security interest,
encumbrance, charge or other Lien of any kind upon the Collateral, whether now
owned or hereafter, acquired, or upon any income or proceeds therefrom, except
the following:
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(a) Liens for property taxes and assessments or governmental
charges or levies, and liens securing claims or demands of mechanics and
materialmen, provided that payment thereof is not overdue or, if overdue, is
being contested in accordance with Section 2.7(c);
(b) Liens of or resulting from any judgment or award, the time for
the, appeal or petition for rehearing of which shall not have expired, or
in respect of which the Company shall at any time in good faith be prosecuting
an appeal or proceeding for, a review and in respect of which a stay of
execution pending such appeal or proceeding for review shall have been secured;
(c) Liens, charges, encumbrances and priority claims incidental to
the conduct of business or the ownership of properties and assets (including
Liens in connection with worker's compensation, unemployment insurance and
other like laws, warehousemen' and attorneys' liens and statutory landlords'
liens) and Liens to secure the performance of bids, tender, or trade contracts,
or to secure statutory obligations, surety or appeal bonds or other Liens of
like general natural incurred in the ordinary course of business and not in
connection with the borrowing of money, provided in each case, the obligation
secured is not overdue or, if overdue, is being contested in accordance with
Section 2.7(c),
(d) minor survey exceptions or minor encumbrances, easements or
reservations, or rights of others for right-of-way, utilities and other similar
purposes, or zoning or other restrictions as to the use of real properties,
and which do not in any event detract from the value of said properties or
materially impair the value thereof or their use in the operation of the
business of the Company;
(e) Liens securing indebtedness of a Subsidiary to the Company or
to another Subsidiary:
(f) Liens created by the Agreement, the Corporate Guaranty, and
the other Security Documents, including without limitation this Mortgage and
Security Agreement and Liens expressly permitted pursuant thereto;
(g) Liens created or incurred after the Closing Date given to
secure the payment of the purchase price incurred in connection with the
acquisition or construction of fixed assets useful and intended to be used in
carrying on the business of the Company, including Liens existing on such fixed
assets at the time of acquisition thereof or at the time of acquisition by the
Company of any business entity then owning such fixed assets, whether or not
such existing Liens were given to secure the payment of the purchase price of
the fixed assets to which they attach so long as they were not incurred,
extended or renewed in contemplation of such acquisition, provided that (1) the
Lien shall attach solely to the fixed assets acquired or constructed, (2) such
Lien shall have been created or incurred within six months of the date of
acquisition or the date of completion of
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construction, (3) at the time of acquisition or construction of such fixed
assets, the aggregate amount remaining unpaid on all indebtedness secured by
Liens on such fixed assets whether or not assumed by the Company shall not
exceed an amount equal to the lesser of the total acquisition price or fair
market value at the time of acquisition or construction of such fixed assets
(as determined in good faith by the Board of Directors of the Company), and (4)
all such indebtedness shall have been incurred within the applicable
limitations provided in the Agreement and the Corporate Guaranty; and
Section 2.9. Advances. If the Company shall fail to comply with
the covenants contained herein or contained in the Agreement and the Corporate
Guaranty and incorporated herein by reference, the Mortgagee, without waiving
any Default or Event of Default or releasing any obligation, may (but shall be
under no obligation to) at any time, thereafter make such payment or perform
such act for the account and at the expense of the Company, and may enter upon
the Collateral or any part thereof for such purpose and take all such action
thereon as, in the opinion of the Mortgagee, may be necessary or reasonably
appropriate therefore. All such so paid by the Mortgagee and all costs and
expenses (including, without limitation, reasonable attorneys' fee and
expenses) so incurred, together with interest thereon at the Default Rate from
the date of payment or incurrence, shall be secured hereby and shall be paid by
the Company to the Mortgagee on demand. The Mortgagee in making any payment
authorized under this Section 2.9 relating to taxes or assessments may do so
according to any xxxx, statement or estimate procured from the appropriate
public office without inquiry into the accuracy of such xxxx, statement or
estimate or into the validity of any tax assessment, sale, forfeiture, tax lien
or title or claim thereof. The Mortgagee, in performing any act hereunder, shall
be the sole judge of whether the Company is required to perform the same under
the terms of this Mortgage and no such advance shall be deemed to relieve the
Company from any default hereunder.
Section. 2.10. Recordation. The Company will, at its own expense,
cause this Mortgage and all supplements hereto and any financing statements and
continuation statements required by the Uniform Commercial Code or other law in
respect thereof at all times to be kept recorded and filed at its own expense in
such manner and in such places as may be required by law in order to fully
preserve and protect the rights of the Mortgagee hereunder, and will furnish to
the Mortgagee promptly after the execution and delivery of this Mortgage and of
each supplement and each financing statement or continuation statement, as the
case may be, an opinion of counsel stating that in the opinion of such counsel
this Mortgage or such supplement and/or such financing statement or
continuation statement, as the case may be, has been properly recorded or filed
for record so as to make effective of record the Lien and (subject to Permitted
Encumbrances) the first perfected security interest intended to be created
hereby.
Section 2.11. After-Acquired Property. Any and all property
hereafter acquired which is of the kind or nature described in the Granting
Clauses hereof and is or is intended to become a part thereof, shall ipso facto,
and without any further conveyance, assignment or act on the part of the
Company or the Mortgagee, become and be, subject to the Lien and first
perfected security interest of this Mortgage as fully and completely as though
specifically described herein; but
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nevertheless the Company shall from time to time, if requested by the
Mortgagee, execute, and deliver any and all such further assurances,
conveyances and assignments thereof as the Mortgagee may reasonably require for
the purpose of expressly and specifically subjecting to the Lien and first
perfected security interest of this Mortgage any and all such property subject
to Permitted Encumbrances.
Section 2.12. Indemnification; Waiver of Offset. (a) If the
Mortgagee is made a party defendant to any litigation concerning this Mortgage
or the Collateral or any part thereof or interest therein, then the Company
shall indemnify, defend and hold the Mortgagee harmless from all liability by
reason of said litigation, including reasonable attorneys' fees and expenses
incurred by the Mortgagee in any such litigation, whether or not any such
litigation is prosecuted to judgment. If the Mortgagee commences an action
against the Company to enforce any of the terms hereof or because of the breach
by the Company of any of the terms hereof, or for the recovery of any of the
indebtedness hereby secured, the Mortgagee shall have its reasonable attorneys'
fees and expenses paid by the Company. If the Mortgagee is a party to any
discussion or negotiations relating to any amendment, waivers or consents to
the Agreement, the Corporate Guaranty or this Mortgage or relating to any loan
modification, recasting, settlement or other agreement relating to the
Indebtedness Hereby Secured, then the Company shall indemnify, defend and hold
the Mortgagee harmless from all liability, costs and expenses incurred in
connection therewith, including reasonable attorneys' fees and expenses.
(b) All sums payable by the company hereunder shall be paid without
notice, demand, counterclaim, setoff, deduction or defense and without
abatement, suspension, deferment, diminution or reduction, and the obligations
and liabilities of the Company hereunder shall in no way be released,
discharged or otherwise affected (except as expressly provided herein) by
reason of: (i) any damage to or destruction or of any condemnation or similar
taking of the Collateral or any part thereof; (ii) any restriction or
prevention of or interference with any use of the Collateral or any part
hereof; (iii) any title defect or encumbrance on the Collateral or any part
thereof by title paramount or otherwise; (iv) any bankruptcy, insolvency,
reorganization, liquidation or other like proceeding relating to the
composition, adjustment, dissolution, Mortgagee, or any action taken with
respect to this Mortgage by any trustee or receiver of the Mortgagee, or by any
court, in any such proceeding; (v) any claim which the Company has or might
have against the Mortgagee; (vi) any default or failure on the part of the
Mortgagee to perform or comply with any of the terms hereof or of any other
agreement with the Company; or (vii) any other occurrence whatsoever, whether
similar or dissimilar to the foregoing; whether or not the Company shall have
notice or knowledge of any of the foregoing. Except as expressly proved herein,
the Company waives to the extent permitted by law all rights now or hereafter
conferred by statute or otherwise to any abatement, suspension, deferment,
diminution or reduction of any of the indebtedness Hereby Secured and payable
to the Company.
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SECTION 3. APPLICATION OF INSURANCE AND CERTAIN OTHER MONEYS RECEIVED
BY THE MORTGAGEE.
Section 3.1. Insurance Proceeds and Condemnation Awards. (a) The
amounts received by or payable to the Mortgagee from time to time which
constitute insurance proceeds in respect of any damage to or destruction of the
Collateral or any part thereof or Condemnation Awards or compensation covering
the Collateral (less the actual costs, fees and expenses incurred in the
collection thereof) shall be held by the Mortgagee as part of the Collateral
and shall be applied by the Mortgagee as set forth below:
(1) In the case of an Event of Loss or upon the receipt
of Condemnation Awards or compensation, such proceeds shall be paid
over to the Company from time to time as it may direct upon a written
application signed by the President or any Vice President of the
Company. Such application shall be accompanied by evidence
satisfactory to the Mortgagee supporting such application for the
purpose of paying, or reimbursing the Company for the payment of, the
reasonable cost, as shown by such application, of repairing or
replacing part or all of the Collateral damaged, destroyed or
condemned ("Restoration"), but only if written application is made
therefore within twelve months of the receipt of such proceeds or
Condemnation Award or compensation by the Company, and then only for
and to the extent that the Company shows by such evidence of costs
that the portion of such proceeds or award of compensation remaining
on deposit with the Mortgagee, together with any additional funds
irrevocably allocated or otherwise provided for in a manner
satisfactory to the Mortgagee for such purpose, shall be sufficient to
complete such Restoration and restore or replace the Collateral at
least to the market value and condition which existed immediately
prior to the damage, destruction, condemnation or taking, as the case
may be, free from liens or encumbrances except Permitted Encumbrances.
Every such application for the payment of such proceeds or
Condemnation Award or compensation shall state that no Event of
Default has occurred and is continuing. So long as no Event of Default
shall have occurred and be continuing and upon the written request of
the Company accompanied by evidence satisfactory to the Mortgagee that
the Restoration has been completed and the costs thereof paid in full,
the balance, if any, of such proceeds in excess thereof shall be paid
to the Company. The Mortgagee shall receive a supplement hereto
sufficient, as shown by an opinion of counsel (which may be counsel
for the Company) if requested by the Mortgagee, to grant a valid first
Lien and first perfected security interest (subject to Permitted
Encumbrances) in any additions to or substitutions for the Collateral
to or for the benefit of the Mortgagee, which opinion shall also cover
the filing and/or recording of such supplement (and a financing
statement or similar notice thereof if and to the extent permitted or
required by applicable law) so as to perfect the Lien and security
interest In such additions or substitutions, or in the alternative an
opinion that no such supplement required for such purpose.
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(2) In the event that a written application shall not
have been made within the twelve-month period provided for in Section
3.1(a)(1) for any portion of the insurance proceeds or Condemnation
Award or compensation, as the case may be, the Mortgagee shall apply
such insurance proceeds or awards of compensation in accordance with
Section 4.3.
Section 3.2. Mortgage Title Insurance. Any moneys received by the
Mortgagee as payment for any lost under any policy of mortgage title insurance
which was delivered by the Company shall become part of the Collateral.
Section 3.3. Other Proceeds. Any other moneys received by the
Mortgagee in connection with the release of the Collateral shall be held by the
Mortgagee as part of the Collateral and shall be applied by the Mortgagee upon
the terms and in the manner provided in Section 4.3 hereof.
Section 3.4 Application if Event of Default Exists. If an Event
of Default has occurred and is continuing, all amounts received by the
Mortgagee under this Mortgage, including without limitation, all amounts held
pursuant to Section 3.5 shall be applied in the manner provided for in Section
4.3 hereof in respect of proceeds and avails of the Collateral.
Section 3.5. Investment of Collateral. All monies held by the
Mortgagee hereunder as Collateral shall be invested and reinvested by the
Mortgagee at the direction of the Company in one or more Eligible Investments.
The Mortgagee shall not in any way be held liable by reason of any insufficiency
of such invested Collateral resulting from any loss on any Eligible Investment
included therein. All interest carried on such Eligible Investments shall be
held by the Mortgagee as Collateral hereunder and shall be invested and
reinvested pursuant to this Section 3.5.
SECTION 4. DEFAULTS AND REMEDIES THEREFOR.
Section 4.1. Events of Default. The Company acknowledges and
agrees, without limitation, that each and all of the terms and provisions of
Sections 8.1 through 8.7 of the Agreement, inclusive, have been and are
incorporated into this Mortgage by reference to the same extent as though fully
set out herein and that the term Event of Default wherever used in this
Mortgage shall mean either: (a) an Event of Default as defined in Section 8.1
of the Agreement, or (b) the failure of the Company to comply with any
covenant, agreement or warranty contained in this Mortgage within 30 days after
the earlier of (1) the Mortgagee shall have given written notice thereof to the
Company, or (2) such failure shall first become actually known to a Responsible
Officer of the Company.
Section 4.2. Remedies. When any Event of Default has occurred and
is continuing, the Mortgagee may exercise any one or more or all, and in any
order, of the remedies hereinafter set forth, it being expressly understood
that no remedy herein or in the Agreement or the Corporate Guaranty conferred
is intended to be exclusive of any other remedy or remedies; but each and every
remedy shall be cumulative and shall be, in addition to every other remedy
given herein or now or hereafter existing at law or in equity or by statute:
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(a) Subject to compliance with the Agreement and the Corporate
Guaranty, the Mortgagee may, by notice in writing to the Company declare the
entire unpaid balance of the Indebtedness Hereby Secured to be immediately due
and payable; and thereupon all outstanding principal, together with all accrued
interest thereon and premium, if any, and all other fees or other amounts
payable with respect thereto shall be and become immediately due and payable.
(b) The Mortgagee, personally or by agents or attorneys may, to
the extent permitted by law, enter into and take possession of all or any part
of the Collateral, and may forthwith use, operate and manage the Collateral,
collect the earnings and income therefrom, pay all charges including taxes and
assessments levied thereon and operating and maintenance expenses and all
disbursements and liabilities of the Company hereunder and apply the net
proceeds arising from any such operation of tile Collateral as provided in
Section 4.3 hereof in respect of the, proceeds of a sale of the Collateral. The
right to enter and take possession of the Collateral and use any personal
property therein, to manage, operate and conserve the same, and to collect the
rents, issues and profits thereof, shall be in addition to all other rights or
remedies of the Mortgage hereunder or afforded by law, and may be exercised
concurrently therewith or independently thereof. The expenses (including any
reasonable receiver's, fees, reasonable counsel fees, costs and agent's
compensation) incurred pursuant to the powers herein contained shall be secured
hereby and the Company promises to pay all such expenses upon demand together
with interest thereon at the Default Rate. The Mortgagee shall not be liable to
account to the Company for any action taken pursuant hereto other than to
account for any rents actually received by the Mortgagee. Without taking
possession of the Collateral, the Mortgagee may, in the event the Collateral
becomes vacant or is abandoned, take such reasonable steps as it deems
appropriate to protect and secure the Collateral (including hiring watchmen
therefor) and all costs incurred in so doing shall constitute so much
additional Indebtedness Hereby Secured payable upon demand with interest
thereon at the Default Rate.
(c) The Mortgagee may, if at the time such action may be lawful
and always subject to compliance with any mandatory legal requirements, either
with or without taking possession and either before or after taking possession,
and without instituting any legal proceedings whatsoever, and having first
given notice of such sale to the Company at least 30 days prior to the date of
such sale and having given any other notice which may be required by law, sell
and dispose of said Collateral or any part thereof at public auction or private
sale to the highest bidder, which may be the Company in one lot as an entirety
or in separate lots (the Company for itself and for all who may claim by,
through or under it hereby expressly waiving and releasing all rights to have
the Collateral marshalled to the extent permitted by law), and either for cash
or on credit and on such terms as the Mortgagee may determine and at any place
(whether or not it be the location of the Collateral or any part thereof)
designated in the notice above referred to. Any such sale or sales may be
adjourned from time to time by announcement at the time and place
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appointed for such sale or sales or for any such adjourned sale or sales,
without further published notice.
(d) The Mortgagee may proceed to protect and enforce its rights by
a suit or suits in equity or at law, or for the specific performance of any
covenant or agreement contained herein or in the Agreement, or in aid of the
execution of any power herein or therein granted, or for the foreclosure of
this Mortgage, or for the enforcement of any other appropriate legal or
equitable remedy. Upon the bringing of any suit to foreclose this Mortgage or
to enforce any other remedy available hereunder, the plaintiff shall he
entitled as a matter of right without notice and without giving bond to the
Company or anyone claiming under, by or through it, and without regard to the
solvency or in solvency of the Company or the then value of the promises, to
apply to an appropriate court to have a receiver appointed of all the
Collateral and of the earnings, income, rents, issues, profits and proceeds
thereof, with such power as the court making such appointment shall confer, and
the Company does hereby irrevocably consent to such appointment.
(e) In case of any sale of the Collateral, or of any part thereof,
pursuant to any judgment or decree of any court or otherwise in connection with
the enforcement of any of the terms of this Mortgage the Mortgagee may bid and
become the purchaser, and the purchaser or purchasers, for the purpose of
making settlement for or payment of the purchase price, shall be entitled to
turn in and use the Agreement, the Corporate Guaranty and Guaranties thereof,
and any claims for interest and premium matured and unpaid thereon, in order
that there may be credited as paid on the purchase price the sum apportionable
and applicable to the Agreement and Guaranties thereof, including principal and
interest and premium thereof, out of the net proceeds of such sale after
allowing for the proportion of the total purchase price required to be paid in
actual cash. If at any foreclosure proceeding the Collateral shall be sold for
a sum less than the total amount of indebtedness for which is therein given,
the Mortgagee shall be entitled to the entry of a deficiency decree against the
Company and against the property of the Company for the amount of such
deficiency.
(f) The Mortgagee shall have any and all rights and remedies
(including, without limitation, extra judicial power of sale) provided to a
secured party by the Uniform Commercial Code with respect to any and all parts
of the Collateral which are and which are deemed to be governed by the Uniform
Commercial Code. Without limiting the generality of the foregoing, the
Mortgagee shall, with respect to any part of the Collateral constituting
property of the type in respect of which realization on a Lien or security
interest granted therein is governed by the Uniform Commercial Code, have all
the rights, options and remedies of a secured parry under the Uniform
Commercial Code, including, without limitations the right to the possession of
any such property, or any part thereof, and the right to enter without legal
process any promises where any such property may be found. Any requirement of
said Uniform Commercial Code for
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reasonable notification shall be met by mailing written notice to the
Company at its address set forth in Section 5.3 at least five (5) days
prior to the sale or other event for which such notice is required.
(g) The Mortgagee shall have any and all rights and
remedies provided for in the Agreement.
Section 4.3. Application of Proceeds. The purchase money proceeds
and/or avails of any sale of the Collateral, or any part thereof and the
proceeds and the avails of any remedy hereunder shall be paid to and applied
its follows:
(a) first, to the payment pro rata of costs and expenses of
foreclosure or, suit, if any, and of such sale, and to the extent
permitted by applicable law, the reasonable, compensation of the
Mortgagee, its agents, attorneys and counsel, and of all proper
expenses, liability and advances incurred or made hereunder by the
Mortgagee or such to agents, attorneys and counsel, and of all taxes,
assessments or other superior to the Lien of these presents, except
any taxes, assessments or other superior Lien subject to which said
sale may have been made;
(b) second, the amount then owing or unpaid on the
Agreement and the Corporate Guaranty with respect to principal, premium
and/or fees, if any, and interest; and in case such proceeds shall be
insufficient to pay in full the whole amount so due, owing or unpaid,
upon the Agreement and Corporate Guaranty thereof, first, to the unpaid
premium and/or fees thereon, if any, second to unpaid interest thereon,
and third, to unpaid principal thereof;
(c) third, to the payment of any other sum required to be
paid by the Company pursuant to any provision of this Mortgage, the
Agreement, and the Corporate Guaranty (including indebtedness with
respect to any other instrument given to secure the Indebtedness Hereby
Secured); and
(d) fourth, to the payment of the surplus, if any, to the
Company, its successors and assigns, or to whomsoever may be lawfully
entitles to receive the same.
Section 4.4. Waiver of Extension, Appraisement and Stay Laws. The
Company covenants that, upon the occurrence and the continuance of an Event of
Default and the acceleration of the Indebtedness Hereby Secured pursuant to
Section 4.2(a) and to the extent that such rights may then be lawfully waived,
it will not at any time thereafter insist upon or plead, or in any manner
whatever claim or take any benefit or advantage of, any stay or extension law
both statutory and common law, now or at any time hereafter in force, or claim,
take or insist upon any benefit or advantage of or from any law both statutory
and common law, now or hereafter, in force providing for the valuation or
appraisement of the Collateral or any part thereof prior to any sale or sales
thereof to be made pursuant to any provision herein contained, or to the
decree, judgment or order of
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any court of competent jurisdiction or, after confirmation of any such sale or
sales claim or exercise any right under common law or any statute now or
hereafter made, or enacted by any state or otherwise to redeem the property so
sold or any part thereof, and hereby expressly waives for itself and on behalf
of each and every person who may claim under it, all benefit and advantage of
any such law or laws both statutory and common law, which would otherwise be
available to any such Person in connection with the enforcement of any of the
Mortgagee's remedies hereunder; and covenants that it will not in connection
with any such enforcement proceedings invoke or utilize any such law or laws or
otherwise hinder, delay or impede the execution of any power herein granted and
delegated to the Mortgagee but will suffer and permit the execution of every
such power as though no such law or laws had been made, enacted or existed. The
foregoing waivers as well as the waivers hereinafter set forth in this Section
4.4 shall particularly include but not be limited to all of the Company's
rights of appraisement and redemption under the Act of the General Assembly of
the State of Arkansas approved May 8, 1899, and all rights under the Act of the
General Assembly of the State of Arkansas entitled ' "An Act to Regulate the
Foreclosure of Mortgages" ', approved February 9, 1933.".
The Company hereby waives any and all rights of redemption from sale
under any order or decree of foreclosure pursuant to rights herein granted, on
behalf of the Company, and each and every Person acquiring any interest in, or
title, to the Collateral described herein subsequent to the date of this
Mortgage, and on behalf of all other Persons to the extent permitted by
applicable law.
Any sale, whether under any power of sale hereby given or by virtue of
judicial proceedings, shall operate to divest all right, title, interest, claim
and demand whatsoever, either at law or in equity, of the Company in and to the
property sold and shall be a perpetual bar, both at law and in equity, against
the Company, its successors and assigns, and against any and all Persons
claiming the property sold or any part thereof under, by or through the Company,
its successors or assigns.
Section 4.5. Effect of Discontinuance of Proceedings. In case the
Mortgagee shall have proceeded to enforce any right under the Mortgage by
foreclosure, sale, entry or otherwise, and such proceedings shall have been
discontinued through written notice to the Company by the Mortgagee or shall
have been determined adversely, then and in every such case the Company and the
Mortgagee shall be restored to its position and rights hereunder as they
existed immediately prior to the commencement of such proceedings with respect
to the property subject to the Lien and first perfected security interest of
this Mortgage.
Section 4.6. Delay of Omission Not a Waiver. No delay, failure, or
omission of the Mortgagee to exercise any right or power arising from any Event
of Default on the part of the Company shall exhaust or impair any such right or
power or prevent its exercise during the continuance of such Event of Default.
No waiver by the Mortgagee of any such Event of Default, whether such waiver be
full or partial, shall extend to or be taken to affect any subsequent Event of
Default or to impair the rights resulting therefrom, except as may be otherwise
provided
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herein. No right, power or remedy hereunder, is intended to be exclusive of any
other right, power or remedy but each and every right, power or remedy shall be
cumulative and in addition to any and every other right, power or remedy given
hereunder or otherwise existing. Nor shall the giving, taking or enforcement of
any other or additional security, collateral or guaranty for the payment of the
indebtedness secured under this Mortgage operate to prejudice, waive or affect
the security of this Mortgage, or any rights, powers or remedies hereunder; nor
shall the Mortgagee be required to first look to, enforce or exhaust such other
or additional security, collateral or guaranties.
Section 4.7. Costs and Expenses of Foreclosure. In any suit to
foreclose the Lien or first perfected security interest hereon there shall be
allowed and included as additional Indebtedness Hereby Secured in the decree
for sale till expenditures and expenses which may be, paid or incurred by or on
behalf of the Mortgagee for reasonable attorney's fees, reasonable appraiser's
fees, outlays for documentary and expert evidence, stenographic charges,
publication costs and costs (which may be, estimated as the items to be
expended after the entry of the decree) of procuring all such abstracts of
title, title searches and examination, guarantee policies, and similar data and
assurances with respect to title as the Mortgagee may deem to be reasonably
necessary either to prosecute any foreclosure action or to evidence to the
bidder at any sale pursuant thereto the true condition of the title to or the
value of the Collateral, all of which expenditures shall become so much
additional Indebtedness Hereby Secured which the Company agrees to pay and all
of such shall be immediately due and payable with interest thereon from the
date of expenditure until paid at the Default Rate.
Section 4.8. Note to Become Due Upon Sale By Mortgagee. Upon any sale
under or by virtue of this Mortgage, whether pursuant to foreclosure, power of
sale or otherwise, the entire, unpaid principal amount due to the Mortgagee
under the Agreement, the Corporate Guaranty, and the Guaranties thereof,
hereunder, or otherwise, shall, unless the Mortgagee shall expressly declare
otherwise, or, if not previously declared due and payable, immediately become
due and payable, together with interest accrued thereon and premium and/or
fees, if any, and all other indebtedness which this Mortgage by its terms
secures, anything contrary in this Mortgage, the Agreement, the Corporate
Guaranty, the Guaranties thereof, or any other instrument to the contrary
notwithstanding.
SECTION 5. MISCELLANEOUS:
Section 5.1. Successors and Assigns. Whenever any of the parties
hereto is referred to, such reference shall be deemed to include the,
successors and assigns of such party; and all the covenants, promises and
agreements in this Mortgage contained by or on behalf of the Company, or by or
on behalf of the Mortgagee, shall bind and inure to the benefit of the
respective successors and assigns of such parties whether so expressed or not.
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Section 5.2. Severability. The unenforceability or invalidity of
any provision of provisions of this Mortgage shall not render any other
provision or provisions herein contained unenforceable or invalid.
Section 5.3. Addresses for Notices and Demands. All communications
provided for herein shall be in writing and shall be deemed to have been given
(unless otherwise required by the specific provisions hereof in respect of any
matter) when delivered personally or when deposited in the United States mail,
registered or certified, postage prepaid, or mailed prepaid overnight air
courier, addressed as follows:
If to the Company: STRIKER HOLDINGS, INC.
Xxx Xxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
If to the Mortgagee: FINOVA CAPITAL CORPORATION
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
with a copy to: Xxxxxxx X. Xxxxx, Esq.
RUSKIN, MOSCOU, XXXXX &
FALTISHCHEK, P.C.
000 Xxx Xxxxxxx Xxxx
Xxxxxxx, Xxx Xxxx 00000
or as to either party at such other address as such party may designate by
notice duly given in accordance with this Section to the other party.
Section 5.4. Headings and Table of Contents. The headings of the
sections of this Mortgage and the table of contents are inserted for purposes
of convenience only and shall not be construed to affect the meaning or
construction of any of the provisions hereof.
Section 5.5. Release of Mortgage. This Mortgage shall be a
continuing agreement in every respect and shall remain in full force and effect
until all of the Indebtedness Hereby Secured shall have been fully paid and
satisfied and any commitment of the Mortgagee to extend any credit to the
Company under the Agreement, the Corporate Guaranty, or otherwise, shall have
terminated. Upon such termination of the Agreement and the Corporate Guaranty,
the mortgagee shall, upon the request and at the expense of the Company,
forthwith release all its liens and security interests hereunder.
Section 5.6. Counterparts. This Mortgage may be executed, edged
and delivered in any number of counterparts, each of such counterparts
constituting an original but all together only one Mortgage.
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Section 5.7. Successor Mortgagee. The Mortgagee may, at any time,
by instrument in writing, appoint a successor or successors to, or discharge
and appoint a new Mortgagee the place of, any Mortgagee named herein or acting
hereunder, which instrument, executed and acknowledged by the Mortgagee; and
recorded in the office of the County Recorder of the county wherein the
Collateral is situated, shall be conclusive proof of the proper substitution of
such successor or successors or new Mortgagee, who shall have all the estate
powers, duties, rights and privileges of the predecessor Mortgagee,
Section 5.8. Governing Law. This Mortgage shall be governed by and
construed and interpreted in accordance with the laws of the State of New York
except to the extent the real and personal property laws of the Sate of
Arkansas, including laws relating to the creation, perfection and enforcement
of liens on real and personal property located in Arkansas, shall necessarily
apply to the enforcement of the security covered by this Mortgage.
Section 5.9. Time. Time shall be of the essence of this Mortgage.
Section 5.10. No Oral Change. This Mortgage may only be modified or
amended by an agreement in writing signed by Mortgagor and Mortgagee, and may
only be released, discharged, or satisfied of record by an agreement in writing
signed by Mortgagee.
Section 5.11. Security Agreement (Accounts Receivable Inventory,
Machinery and Equipment). This Mortgage is subject to all of the terms,
covenants and conditions of a certain revolving credit security Agreement dated
as of April 25, 1995 and entered into between the Company and Mortgagee (such
Agreement, as it may be amended, supplemented or otherwise modified) and the
Corporate Guaranty, which Agreement, Corporate Guaranty and all of the terms,
covenants and conditions thereof are by this reference incorporated herein and
made a part hereof with the same force and effect as if set forth at length
herein. All advances made and all indebtedness arising and accruing under this
Agreement and the Corporate Guaranty from time to time shall be secured by this
Mortgage. In the event of any conflict or ambiguity between the terms,
covenants and conditions of this Mortgage and the Agreement or the Corporate
Guaranty, the terms, covenants and conditions which shall enlarge the rights
and remedies of Mortgagee and the interest of Mortgagee in the Collateral,
afford Mortgagee greater financial security in the Collateral and better assure
payment of the Indebtedness Secured Hereby in full, shall control.
IN WITNESS WHEREOF, the Company has caused this Mortgage to be executed
in its behalf by its President and attested by its Secretary as of the day and
year first above written.
STRIKER HOLDINGS, INC.
By: /s/ XXXXX X. XXXXXXX
----------------------------------
Printed Name: Xxxxx X. Xxxxxxx
Its President and CEO
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ATTEST:
By: /s/ XXXXXXX X. XXXX
--------------------------
Printed Name: Xxxxxxx X. Xxxx
----------------
Its Secretary
-------------------------
ACKNOWLEDGEMENT
STATE OF TEXAS )
) ss.
COUNTY OF XXXXXX )
I, Xxxxxx Benz Xxxxxx a Notary Public in and for the County and State
aforesaid, do hereby certify that Xxxxx X. Xxxxxxx personally known to me to be
the same person whose name is as President & CEO of STRIKER HOLDINGS, INC., a
Texas corporation, subscribed to the foregoing instrument, appeared before me
this day in person and acknowledged that he, being thereunto duly authorized,
signed and sealed with the seal of said Corporation, and delivered the said
instrument as the free and voluntary act of said Corporation and a his own free
and voluntary act, for the uses and purposes therein set forth.
Given under by hand and notarial seal this 18th day of August, 1995.
/s/ XXXXXX BENZ XXXXXX
--------------------------------
Notary Public
County of Residence: Xxxxxx
--------------------------------
[SEAL]
My Commission Expires:
February 13, 1999
-------------------------
This Instrument was prepared by:
XXXXXXXXXX, XXXXX, XXXXXX
XXXXX & XXXXXXX, P.A.
000 X. Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx Xxxx, Xxxxxxxx 00000-0000
(000)000-0000
30
A part of the NW 1/2 NE 1/2 and a part of the NE 1/2 NW 1/2 of Section 00,
Xxxxxxxx 00 Xxxxx, Xxxxx 19 West, Ouachita County, Arkansas particularly
described as follows:
COMMENCE at the Southeast corner of the NW 1/2 NE 1/2 and run N02 degrees 02'
09" E 42.09 feet to a net wire fence;
THENCE, N87 degrees 48' 10"W 87.30 feet along said fence to a 5/8" rod for
the POINT OF BEGINNING of the tract herein described being described as 68 feet
North and 155 West of the Southeast corner of said NW 1/2 NE 1/2 in a warranty
deed from Xxxxxx and Xxxxxx to Elk Roofing Manufacturing Company recorded in
Book 273 at page 239;
THENCE, N87 degrees 18' 00"W along said fence 534.57 feet to a 1" pipe;
THENCE, N88 degrees 08' 27"W along said fence 363.09 feet to a 3/4" pipe;
THENCE, S88 degrees 46' 43"W along said fence 80.13 feet to a 5/8" rod;
THENCE, N87 degrees 44' 59"W along said fence 419.87 feet to a 3/4" pipe;
THENCE, N87 degrees 48' 36"W along said fence and fence-line extended 229.00
feet to a 3/8" rebar;
THENCE, N32 degrees 04' 50"W 63.00 feet to a 3/4" iron rod;
THENCE, N00 degrees 55' 24"W 226.37 feet to a 3/8" rebar set in the
Southeastern right-of-way of the St. Louis-Southwestern Railway: point being at
1,187 feet Southwesterly along the right-of-way from the South right of way of
a county road;
THENCE, N55 degrees 25' 13"E along said Southeastern right-of-way 307.38
feet to a 3/8" rebar;
THENCE, N12 degrees 51' 53"W 99.65 feet to a 1/2" rod set as the Southwest
corner of a tract conveyed by Xxxxx X. and Xxx Xxxxxx Roofing Company recorded
in Book 362 at Page 187, said rod being in a fence corner;
THENCE, N12 degrees 51' 53"W along said fence 406.27 feet to a 3/4" pipe;
THENCE, N41 degrees 25' 17"E 485.04 feet to a 1-1/4" pipe set as the
Xxxxxxxxx xxxxxx xx xxx XX 0/0 XX 0/0;
THENCE, S87 degrees 16' 34"E along the North line of said NW 1/2 N 1/2E
403.00 feet to a 3/8" rebar;
THENCE, S34 degrees 30' 09"W 66.84 feet to a 3/8" rebar set in the East
right-of-way of a gravel public road as located by a sur Pipeline Corporation
in 1962;
THENCE, S25 degrees 46' 50"E along said right-of-way 80.00 feet to a 3/8"
rebar;
THENCE, S23 degrees 06' 53"E along said right-of-way 142,65 feet to a 3/8"
rebar set in the Northwestern right-of-way of said rebar
THENCE, S61 degrees 28' 05"E parallel with the centerline of a county road
112.56 feet to a 3/8" rebar set in the Southeastern of said railroad, said
point also being the Southwestern corner of a tract conveyed by Xxxxxxxx
Trucking Company to Elk Roofing recorded in Book 323 at page 291;
THENCE, N55 degrees 51' 52"E along the Southeastern right-of-way of said
railroad 112.20 feet;
THENCE, N57 degrees 55' 23"E along said right-of way 67.66 feet to a 3/8"
rebar;
THENCE, S02 degrees 02' 09"W 135.69 feet to a 3/8" rebar in the Northern
right-of-way of said county road;
THENCE, S20 degrees 10' 16"W 41.14 feet to a 3/8" rebar set in the South
right-of-way of said county road;
THENCE, S74 degrees 01' 11"E along said right-of-way 642.98 feet to a 3/8
rebar in the East line of said NW 1/2 NE 1/2;
THENCE, S02 degrees 02' 09"W along said East line 830.51 feet to a fence;
THENCE, N87 degrees 48' 10"W along said fence 87.30 feet to the point of
beginning, containing 40.414 acres more or less.
LESS AND EXCEPT 1.955 acres in St. Louis - Southwestern Railway right-of-ways
leaving an aggregate of 38.459 acres, of acres are in the NW 1/2 NE 1/2 and
7.460 acres are in the NE 1/2 NW 1/2.
