Exhibit 8
ACQUISITION AGREEMENT
PURCHASE OF QUANTUM CHEMICAL COMPANY'S ASSETS
FOR FIX-CORP INTERNATIONAL'S STOCK
THIS AGREEMENT, executed on the date (or dates) set forth below, by and
between:
FIX-CORP INTERNATIONAL, Inc., a Delaware corporation with its principal
place of business located at 00000 Xxxxx Xxxx, Xxxxx 000, Xxxxxxxxx, Xxxx 00000,
acting through its authorized agent Xxxxxx Xxxxx, and hereafter referred to as
interchangeably as "Fix-Corp International, Inc." or "Purchaser";
- and -
FIX-COR INDUSTRIES, Inc., a Delaware corporation with offices at 00000
Xxxxx Xxxx, Xxxxx 000, Xxxxxxxxx, Xxxx 00000, and with a plastics recycling
plant located at Mid-Ohio Industrial Part, 0000 Xxxxx Xxxxxxx, Xxxxx, Xxxx
00000, formerly known as Quantum Chemical Company, acting through its authorized
agent Xxxx DeLorentis and hereafter referred to as "Fix-Cor";
- and -
Xxxx Xxxxxx, an individual residing at 0000 Xxxxxxxxxxx Xxxx, Xxxxxxxx,
Xxxxxxx 00000, acting on his behalf and hereafter referred to as the
"Stockholder";
Declare as their mutual intent and purpose as follows.
RECITALS:
WHEREAS, Fix-Corp International, Inc. and Quantum Chemical Corporation, a
Virginia corporation with its principal offices at 00000 Xxxxxxxxx Xxxxx,
Xxxxxxxxxx, Xxxx 00000 entered into a Purchase and Sale Agreement for the
Quantum Resource Recovery plant located at Heath, Ohio, involving Quantum's
post-consumer plastic recycling business and said Purchase and Sale Agreement
was consummated on December 16, 1996. A copy of said Purchase and Sale Agreement
is hereby attached and labeled Exhibit A.; and
WHEREAS, Fix-Corp International lacked the financial capacity to consummate
this transaction by itself and, because of this lack of capacity, Xxxx Xxxxxx,
Stockholder herein and the President of Fix-Corp International, was engaged in a
personal capacity and was asked to sign and in fact did sign as Guarantor on a
Loan and Security Agreement with Xxxxxx Xxxxxxxx Capital Corporation, a Delaware
corporation with its principal office located at 00 Xxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000 and, without Xx. Xxxxxx'x signature on this Loan and
Security Agreement, the transaction between Fix-Corp International, Inc. and
Quantum Chemical Corporation would not have been consummated. A copy of the Loan
and Security Agreement is attached and labeled Exhibit B; and
WHEREAS, Fix-Corp International, Inc. has established a wholly owned
subsidiary called Fix-Cor Industries, Inc. and Fix-Cor Industries purpose for
existing is to operate the assets and the business acquired from Quantum
Chemical Corporation on behalf of Fix-Corp International, Inc.; and
WHEREAS, Fix-Corp International, Inc. desires to compensate Xxxx Xxxxxx,
Stockholder herein, for his assistance in the procurement of financing for the
acquisition of Quantum Chemical Company assets and, in addition to providing
compensation for Stockholder's guarantee, Purchaser further desires to acquire
all legal and equitable interest acquired by Stockholder in said Quantum
Chemical Company assets, thereby vesting full legal and equitable title in said
Quantum Chemical Company with Fix-Corp International, Inc., Purchaser herein;
and
WHEREAS, Purchaser further desires to transfer all assets acquired from
Quantum Chemical Company and place said assets with Fix-Cor Industries, Inc.;
WHEREAS, Purchaser further desires to accomplish its acquisition of all
legal and equitable interest held by Stockholder, Xxxx Xxxxxx, through a noncash
transaction involving an exchange of restricted Common Stock with par value of
$0.001 per share; and
WHEREAS, Stockholder is also amenable to accepting a block of Restricted
Common Stock with par value of $0.001 and with market value, calculated pursuant
to the terms set forth below, of six million dollars ($6,000,000); and
WHEREAS; Fix-Cor is agreeable to accepting all assets acquired from Quantum
Chemical Corporation and operating said assets on behalf of Purchaser and for
Purchaser's benefit, pursuant to the terms and conditions set forth below;
NOW, THEREFORE, in exchange for the above covenants and with all Parties
intending to be legally bound, Purchaser hereby agrees to convey, transfer and
vest Fix-Cor Industries with all assets acquired by Purchaser from Quantum
Chemical Company and Purchaser further agrees to acquire all legal and equitable
interest held by Stockholder in said Quantum Chemical Company assets in exchange
for the Purchaser's restricted voting common stock, pursuant to the terms and
conditions which follow.
REPRESENTATIONS AND WARRANTIES
OF FIX-COR AND STOCKHOLDER
Section One : Fix-Cor and Stockholder represent and warrant to Purchaser as
follows:
Section 1.01 Organization and Qualification
(a) Fix-Cor possesses the requite personnel and knowledge to operate all
the assets and properties formerly known and referred to as Quantum Resource
Recovery plant and acquired from Quantum Chemical Company, and said assets and
properties are listed in Exhibit C.
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Other than the assets of Quantum Chemical Company, Fix-Cor is operating and
engaging in no other business or economic enterprise of any nature whatsoever
and Fix-Cor further warrants that it has no subsidiaries or affiliates
(excluding Purchaser) which are engaging in any other enterprise or business
activity.
(b) Fix-Cor is a corporation duly organized, validly existing, and in good
standing under the laws of Delaware, with all requisite power and authority, and
all necessary consents, authorizations, approvals, orders, licenses,
certificates, and permits of and from, and declarations and filings with, all
pertinent governmental authorities to own, lease, license, and use its
properties and assets, and to carry on the business in which it is now engaged
and the business in which it contemplates engaging. Fix-Cor is duly qualified to
transact the business in which it is engaged and is in the process of applying
for good standing as a foreign corporation in Ohio, and it is further warranted
that said application of good standing from Ohio will be perfunctorily granted
once a Franchise Tax return is filed.
Section 1.02 Capitalization
(a) The authorized capital stock of Fix-Cor consists of one thousand
(1,000) shares of common stock, par value $0.001 per share ("Fix-Cor Common
Stock"), of which one thousand shares are outstanding. Each outstanding share of
Fix-Cor Common Stock is validly authorized, validly issued, fully paid, and
subject to any liability imposed by Section 630 of the New York Business
Corporation Law, nonassessable, has not been issued and is not owned or held in
violation of any preemptive right of stockholders, and is owned of record and
beneficially by Purchaser in accordance with the following table:
NAME OF STOCKHOLDER NUMBER OF SHARES
Fix-Corp International, Inc. 1,000
(b) There is no commitment, plan, or arrangement to issue, and no
outstanding option, warrant, or other right calling for the issuance of, any
share of capital stock of Fix-Cor, or any security or other instrument
convertible into, exercisable for, or exchangeable for capital stock of Fix-Cor.
There is outstanding no security or other instrument convertible into or
exchangeable for capital stock of Fix-Cor.
Section 1.03 Financial Worth
(a) The following appraisals of the Quantum Chemical Company are hereby
attached and labeled as set forth below.
(1) An appraisal prepared for Quantum Chemical Company by Selvage &
Associates, a firm located on 0000 Xxxxx Xxxx xx Xxxxx Xxxx, Xxxx 00000, signed
by Xxxxx Xxxxxxx and dated February 8, 1996 (Exhibit D); and
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(2) An appraisal prepared for Purchaser by Xxxxxx X. Xxxxxx, real estate
appraiser whose business is located at 00 Xxxxx Xxxx Xxxxx, Xxxxx 000, Xxxxxx,
Xxxx 00000 signed by Xxxxxx Xxxxxx and Xxxxx Progtor, and dated December 23,
1996 (Exhibit E).
(b) Since January 8, 1997, during which time Fix-Cor operated the assets
and properties of Quantum Chemical Company on behalf of Purchaser in a de facto
capacity, Fix-Cor warrants that:
(1) There has been no material adverse change in the financial condition,
results of operations, business, properties, assets, liabilities, or future
prospects of Fix-Cor; and the plastics recycling business has operated
profitably.
(2) Fix-Cor has not authorized, declared, paid, or effected any dividend,
or liquidating or other distribution, in respect of its capital stock, or any
direct or indirect redemption, purchase, or other acquisition of any of that
stock.
(3) The operations and business of Fix-Cor have been conducted in all
respects only in the ordinary course.
(4) Management of Fix-Cor reasonably believes that the plastic recycling
operations will meet or exceed the pro forma statements and, further, management
of Fix-Cor is not aware of any purchase order or quotation for the future sale
of the plastic products produced by Fix-Cor which will not be profitable.
(5) Fix-Cor has not suffered an extraordinary loss (whether or not covered
by insurance) or waived any right of substantial value.
(6) Management of Fix-Cor further asserts that there are no known facts to
Fix-Cor which would materially affects in an adverse manner, the financial
condition, results of operations, business, properties, assets, liabilities, or
future prospects of Fix-Cor; provided, however, that Fix-Cor expresses no
opinion as to political or economic matters of general applicability.
Section 1.04 Tax and Other Liabilities
(a) Fix-Cor has no liability of any nature, accrued or contingent,
including, without limitation, liabilities for federal, state, local, or foreign
taxes and liabilities to customers or suppliers, other than the following:
(1) Liabilities for which full provision has been made on the last interim
balance sheet ("Last Balance Sheet") as of February 29, 1997 (hereafter referred
to as the "Last Balance Sheet Date"); and
(2) Other liabilities arising since the Last Balance Sheet Date and prior
to the Closing in the ordinary course of business (which shall not include
liabilities to customers on account of
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defective products or services) which are not inconsistent with the
representations and warranties of Fix-Cor or Stockholder or any other provision
of this Agreement.
Section 1.05 Litigation and Claims
(a) There is no litigation, arbitration, claim, governmental or other
proceeding (formal or informal), or investigation pending, threatened, or in
prospect or any basis therefor known to Fix-Cor or to Stockholder with respect
to the assets and properties formerly known as Quantum Chemical Company. Fix-Cor
is not affected by any present or threatened strike or other labor disturbance
nor, to the knowledge of Fix-Cor, is any union attempting to represent any
employee of Fix-Cor as collective bargaining agent. Fix-Cor is not in violation
of, or in default with respect to, any law, rule, regulation, order, judgment,
or decree; nor is Fix-Cor required to take any action in order to avoid such a
violation or default.
Section 1.06 Properties
(b) Quantum Chemical Company has passed good and marketable title in fee
simple absolute to Fix-Cor for all real properties and good title to all other
properties and assets used in their business or formerly owned by them, except
for permanent easements to a railroad siding and access to a truck scale plus
other properties (if any) operated pursuant to a license, free and clear of all
liens, mortgages, security interests, pledges, charges, and encumbrances.
(a) All accounts and notes receivable reflected on the Last Balance Sheet,
or arising since the Last Balance Sheet Date, have been collected, or are and
will be good and collectible, in each case at the aggregate recorded amounts
thereof without right of recourse, defense, deduction, return of goods,
counterclaim, offset, or set off on the part of the obligor, and, if not
collected, can reasonably be anticipated to be paid within 90 days of the date
incurred.
(b) All inventory of raw materials and work in process of Fix-Cor is
usable, and all inventory of finished goods is good and marketable, on a normal
basis in the existing product lines of Fix-Cor, as the case may be. In no event
do the inventories represent more than a 1 month supply measured by the
projected volume of sales or use for the year ended December 31, 1997,
predicated upon the pro forma operating statements referenced herein. All
inventory is merchantable and fit for the particular purpose for which it is
intended.
(c) Attached as Exhibit F is a true and complete list of all real and
other properties and assets owned, leased, or licensed to Fix-Cor (including
inventory but not including Intangibles, as defined in Section 1.09), including,
with respect to properties and assets owned by Fix-Cor, a statement of cost,
book value and (except for land) reserve for depreciation of each item for tax
purposes, and net book value of each item for financial reporting purposes, and,
with respect to properties and assets leased or licensed by Fix-Cor, a
description of that lease or license. All real and other properties and assets
(including Intangibles) owned by Fix-Cor are reflected on the Last Balance Sheet
(except for acquisitions subsequent to the Last Balance Sheet Date and prior to
the Closing which are either noted on Exhibit B or C or are approved in writing
by the Purchaser). All real and other tangible properties and assets owned,
leased, or licensed by Fix-Cor are in good
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and usable condition (which is herein defined as reflecting reasonable wear and
tear which does not adversely affect the operation of the business of Acquired
Corporation or of that Subsidiary excepted).
(d) No real property owned, leased, licensed, or used by Fix-Cor is, or to
the knowledge of Fix-Cor will be subject to zoning, use, or building code
restrictions which would prohibit its use in the commercial business in which
Fix-Cor is engaged, and no state of facts relating to the actions or inaction of
another person or entity or his or its ownership, leasing, licensing, or use of
any real or personal property exists or will exist which would prevent, the
continued effective ownership, leasing, licensing, or use of that real property
in the business in which Fix-Cor is now engaged or the business in which it
contemplates engaging.
(e) The real and other properties and assets (including Intangibles)
owned, leased or licensed by Fix-Cor constitute all properties and assets which
are necessary to the business of recycling plastic as presently conducted and as
it is contemplated conducting in the foreseeable future.
Section 1.07 Contracts and Other Instruments
(a) Exhibit G, titled List of Contracts, Agreements and Instruments and
Arrangements, accurately and completely sets forth the information required to
be contained therein with respect to Fix-Cor, identifying whether the matter
disclosed therein relates to Fix-Cor or to Stockholder.
(1) The certificate of incorporation (or other charter document) and
By-laws of Fix-Cor and all amendments thereto, as presently in effect, certified
by the Secretary of the corporation, and
(b) The following, initialed by the chief executive officer of Fix-Cor:
(i) true and correct copies of all contracts, agreements, and instruments
referred to in Exhibit G;
(ii) true and correct copies of all leases and licenses (if any); and
(iii)true and correct written descriptions of all supply, distribution,
agency, financing, or other arrangements or understandings referred to in
Exhibit G.
(c) Neither Fix-Cor, nor to the knowledge of Fix-Cor or Stockholder, any
other party to any of those contracts, agreements, instruments, leases, or
licenses is now or expects in the future to be in violation of, or in default
with respect to complying with, any material provision thereof, and each
contract, agreement, instrument, lease, or license is in full force and
constitutes the legal, valid, and binding obligation of the parties and is
enforceable in accordance with its terms.
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(d) Each supply, distribution, agency, financing, or other arrangement or
understanding is a valid and continuing arrangement or understanding; neither
Fix-Cor, nor any other party to any arrangement or understanding has given
notice of termination or taken any action inconsistent with the continuance of
that arrangement or understanding; and the execution, delivery, and performance
of this Agreement will not prejudice any of those arrangements or understandings
in any way.
(e) Fix-Cor enjoys peaceful and undisturbed possession under all leases
and licenses under which it is operating. Fix-Cor is not a party to or bound by
any contract, agreement, instrument, lease, license, arrangement, or
understanding, or subject to any charter or other restriction, which has had, or
to the knowledge of Fix-Cor or Stockholder may in the future have, a material
adverse effect on the financial condition, results of operations, business,
properties, assets, liabilities, or future prospects of Fix-Cor.
Fix-Cor has not engaged nor is it engaging in, nor does it intend to
engage in any transaction with any Stockholder, any director, officer, or
employee of Fix-Cor, any relative or affiliate of any Stockholder or of any
director, officer, or employee, or any other corporation or enterprise in
which any Stockholder, any director, officer, or employee, or any relative or
affiliate then had or now has a 5 percent [5 %] or greater equity or voting
or other substantial interest, other than contracts and agreements listed and
so specified in Exhibit D.
Fix-Cor is not in violation or breach of, or in default with respect to any
term of its certificate of incorporation (or other charter document) or Bylaws.
Section 1.08 Questionable Payments
Neither Fix-Cor, nor any director, officer, agent, employee, or other
person associated with or acting on behalf of Fix-Cor, nor any Stockholder has,
directly or indirectly:
(a) Used any corporate funds for unlawful contributions, gifts,
entertainment, or other unlawful expenses relating to political activity;
(b) Made any unlawful payment to foreign or domestic government officials
or employees, or to foreign or domestic political parties or campaigns, from
corporate funds;
(c) Violated any provision of the Foreign Corrupt Practices Act of 1977;
(d) Established or maintained any unlawful or unrecorded fund of corporate
monies or other assets;
(e) Made any false or fictitious entry on the books or records of Fix-Cor;
(f) Made any bribe, rebate, payoff, influence payment, kickback, or other
unlawful payment;
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(g) Given any favor or gift which is not deductible for federal income tax
purposes; or
(h) Made any bribe, kickback, or other payment of a similar or comparable
nature, whether lawful or not, to any person or entity, private or public,
regardless of form, whether in money, property, or services, to obtain favorable
treatment in securing business or to obtain special concessions, or to pay for
favorable treatment for business secured or for special concessions already
obtained.
Section 1.09 Authority to Sell
(a) Fix-Cor and Stockholder have all requisite power and authority to
execute, deliver, and perform this Agreement. All necessary corporate
proceedings of Fix-Cor have been duly taken to authorize the execution,
delivery, and performance of this Agreement by Fix-Cor. This Agreement has been
duly authorized, executed, and delivered by Fix-Cor, and it has been duly
executed and delivered by Stockholder, and this Agreement constitutes the legal,
valid, and binding obligation of Fix-Cor and Stockholder, and is enforceable in
accordance with its terms.
(b) No consent, authorization, approval, order, license, certificate, or
permit of or from, or declaration or filing with, any federal, state, local, or
other governmental authority or any court or other tribunal is required by
Fix-Cor, or by Stockholder for the execution, delivery, or performance of this
Agreement by Fix-Cor and Stockholder. No consent of any party to any contract,
agreement, instrument, lease, license, arrangement, or understanding to which
Fix-Cor or Stockholder is a party, or to which any of its or his properties or
assets are subject, is required for the execution, delivery, or performance of
this Agreement; and the execution, delivery, and performance of this Agreement
will not violate, result in a breach of, conflict with, or (with or without the
giving of notice or the passage of time or both) entitle any party to terminate
or call a default under any contract, agreement, instrument, lease, license,
arrangement, or understanding, or violate or result in a breach of any term of
the certificate of incorporation (or other charter document) or By-laws of
Fix-Cor, or violate, result in a breach of, or conflict with any law, rule,
regulation, order, judgment, or decree binding on Fix-Cor or any Stockholder, or
to which any of its or his operations, business, properties, or assets are
subject. Upon the Closing, Purchaser will pass to Fix-Cor good and marketable
title in fee simple absolute to all the real properties and good title to all
other properties and assets used in the business of Fix-Cor (except real and
other properties and assets held pursuant to leases or permanent easements
described in Exhibits B and C), free and clear of all liens, mortgages, security
interests, pledges, charges, and encumbrances (except those listed in Exhibit
D).
Section 1.10 Nondistributive Intent
Stockholder is acquiring the shares of Purchaser Common Stock to be issued
hereunder for his own account for investment and not with a view to the
distribution thereof. Stockholder will not sell or otherwise dispose of those
shares (whether pursuant to a liquidating dividend or otherwise) for at least
two years and then, only when such sale shall become eligible for an exemption
from registration. The certificate or certificates representing the shares will
contain a legend to the foregoing effect. By virtue of its position, Stockholder
has access to the kind of
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financial and other information about the Purchaser as would be contained in a
registration statement filed under the Securities Act of 1933. Stockholder
understands that he cannot sell or otherwise dispose of the shares for at least
two years and, after two years, Stockholder must still procure an exemption from
the registration provisions of the Securities Act of 1933.
Section 1.11 Completeness of Disclosure
No representation or warranty by Fix-Cor or Stockholder in this Agreement
contains any untrue statement of material fact, or omits to state a material
fact necessary to make the statements made herein not misleading.
II. Representations and Warranties of Purchaser: Purchaser represents and
warrants to Fix-Cor and Stockholder as follows:
Section 2.01 Organization
Purchaser is a corporation duly organized, validly existing, and in good
standing under the laws of its jurisdiction of incorporation, with all requisite
power and authority to own, lease, license, and use its properties and assets,
and to carry on the business in which it is now engaged and the business in
which it contemplates engaging.
Section 2.02 Validity of Shares
The shares of Purchaser Common Stock delivered to Stockholder pursuant to
this Agreement are validly authorized, validly issued, fully paid, and subject
to any liability imposed by Section 630 of the New York Business Corporation Law
nonassessable.
Section 2.03 Authority to Buy
Purchaser has all requisite power and authority to execute, deliver, and
perform this Agreement. All necessary corporate proceedings of the Purchaser
have been duly taken to authorize the execution, delivery, and performance of
this Agreement by the Purchaser. This Agreement has been duly authorized,
executed, and delivered by the Purchaser. This Agreement further constitutes the
legal, valid, and binding obligation of the Purchaser and is enforceable in
accordance with its terms.
III. Exchange
Section 3.01 Terms of Exchange
On the basis of the representations, warranties, covenants, and
agreements contained in this Agreement and subject to the terms and
conditions of this Agreement:
(a) Purchaser shall sell, assign, transfer, and convey as a going concern
to Fix-Cor at the Closing all properties and assets of the business formerly
known as Quantum Chemical
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Company at the date of the Closing of every kind and nature whatsoever,
including the names, trademarks, contractual rights, books and records and
business and goodwill of the business formerly known as Quantum Chemical
Company; and, in consideration therefor, Purchaser shall:
(i) Deliver at the Closing to Stockholder, a stock certificate registered
in his name for the equivalent of six million dollars worth of Purchaser's
Stock, determined to be 8,000,000 shares, and
(ii) Purchaser shall assume at the Closing all obligations and liabilities
of a certain loan agreement tided Loan and Security Agreement, previously
executed by Stockholder whose signature appears thereon as a party personally
liable and responsible for the obligations contained therein, and Purchaser
shall further indemnify and hold Stockholder harmless from the obligations
contained therein.
(b) Except as set forth in Section 3.01(a)(ii), neither the Stockholder
nor Fix-Cor shall assume or be responsible for any obligation or liability of
Quantum Chemical Company of any nature, accrued or contingent.
(c) With respect to any properties or assets sold hereunder that cannot be
physically delivered to Fix-Cor because they are in the possession of third
parties or otherwise, Purchaser shall give irrevocable instructions to the party
in possession thereof, if such be the case, with copies to Fix-Cor, that all
right, title, and interest therein have been vested in Fix-Cor, and that the
same are to be held for Fix-Cor's exclusive use and benefit.
Section 3.02 Closing
(a) The closing of the transaction contemplated by Sections 3.01(a)(i) and
3.01(a)(ii) shall take place at the offices of Fix-Corp International, 00000
Xxxxx Xxxx - Xxxxx 000, Xxxxxxxxx, Xxxx 00000, at :00 _.M., local time, on
[ , 19 ]. The closing of the transaction contemplated by Sections 3.01(a)(i)
and 3.01(a)(ii) is herein called the "Closing."
Section 3.03 Transactions at Closing
(a) The following transactions shall take place at the Closing
(1) Fix-Cor shall deliver to Purchaser all such documents representing all
the outstanding shares of capital stock of Fix-Cor.
(b) Purchaser shall deliver to Stockholder a stock certificate registered
in Stockholders name for six million dollars ($6,000,000) worth of shares of
Purchaser Common Stock, and all said shares shall bear a Restrictive Legend,
stating that these shares are not registered and that these shares are being
exchanged pursuant to the Private Offering Exemption, under Section 4(2) of the
Securities Act of 1933.
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(c) Purchaser shall deliver to Stockholder an instrument of assumption of
the obligations and liabilities of Stockholder which Purchaser has agreed to
assume pursuant to Section 3.01(a)(ii).
(d) Purchaser shall deliver to Fix-Cor an undertaking to transfer the
title of all properties held by Purchaser to Fix-Cor, immediately upon payment
of all incumbent indebtedness or upon the transition to permanent financing of
said properties, whichever should occur first in time.
Section 3.04 Right of Purchaser to Withhold Future Payments
(a) If, prior to the time all shares of Purchaser's Common Stock are
delivered pursuant to Section 3.01(a)(i), Purchaser has learned of a breach of
any representation, warranty, covenant, or agreement of Fix-Cor or Stockholder
contained in this Agreement, Purchaser, in its discretion by written notice to
Stockholder, can deduct from the number of shares of Purchaser's Common Stock
otherwise deliverable by Purchaser, a number of shares whose aggregate value is
equal to the aggregate of
(i) the amount necessary to cure or make whole that breach; and
(ii) the amount of losses, deficiencies, damages, and legal and other
expenses (including legal fees and expenses of attorneys chosen by any
Indemnitee) incurred or demonstrably in prospect of being incurred by any
Indemnitee in connection with claims, suits, actions, proceedings (formal or
informal), investigations, judgments, or settlements as a result of, or to
remedy a situation or circumstance caused by, the breach.
(b) Shares of Purchaser's Common Stock shall be valued for purposes of
this Section 3.04 as follows:
(i) If shares of Purchaser Common Stock are traded on a national
securities exchange, at the average closing price per share during the period
commencing 40 days prior to the date of the Closing and ending 10 days prior to
the date of the Closing ("Valuation Period") on the principal securities
exchange on which those shares are traded.
(ii) If the shares are traded in the over-the-counter market, at the
average closing asked price per share during the Valuation Period.
(c) If no public market exists for Purchaser Common Stock, at a price
equal to the fair market value per share of the shares, as determined by an
independent appraiser selected by the Purchaser.
IV. Conditions to Obligations of Purchaser
The obligations of Purchaser under this Agreement are subject, at the
option of Purchaser to the following conditions:
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Section 4.01 Accuracy of Representations and Compliance With Conditions
(a) All representations and warranties of Fix-Cor and Stockholder
contained in this Agreement shall be accurate when made and, in addition, shall
be accurate as of the Closing, as though the representations and warranties were
then made in exactly the same language by Fix-Cor or Stockholder and regardless
of knowledge or lack thereof on the part of Fix-Cor or Stockholder or changes
beyond its or his control; as of the Closing, Fix-Cor and Stockholder shall have
performed and complied with all covenants and agreements and satisfied all
conditions required to be performed and complied with by any of them at or
before that time by this Agreement; and Purchaser shall have received
certificates signed by the chief executive officer of Fix-Cor and by Stockholder
dated the date of the Closing to that effect, substantially in the form of
Exhibits I and J, respectively.
Section 4.02 Opinion of Counsel
(a) Fix-Cor and Stockholder shall have delivered to Purchaser on the date
this Agreement is executed and on the date of the Closing the opinion of counsel
to Fix-Cor and Stockholder, dated as of those dates, in form and substance
satisfactory to counsel for the Purchaser, that:
(1) Fix-Cor is a corporation validly existing and in good standing under
the laws of the State of Delaware, with all requisite corporate power and
authority to own its properties and to carry on the business in which it is now
engaged.
(b) Fix-Cor is duly qualified to transact the business in which it is
engaged and is in the process of applying for good standing as a foreign
corporation in the Ohio. Furthermore, Ohio is the only jurisdiction in which the
real or personal property owned or leased, or business conducted by the former
Quantum Chemical Company is material to the operations of its plastics recycling
business taken as a whole.
(c) The authorized and outstanding capital stock of Fix-Cor is as set
forth in Section 1.02 of this Agreement; and all outstanding shares of capital
stock of Fix-Cor are validly authorized and issued, fully paid, and
nonassessable.
(d) All necessary corporate proceedings of Fix-Cor have been duly taken to
authorize the execution, delivery. and performance of this Agreement by Fix-Cor
and the consummation of the transactions contemplated by this Agreement.
(f) Fix-Cor has corporate power and authority to execute, deliver, and
perform this Agreement, and the Stockholder has power and authority to execute,
deliver, and perform this Agreement, and this Agreement has been duly
authorized, executed, and delivered by Fix-Cor, and this Agreement has been duly
executed and delivered by Stockholder, and this Agreement constitutes the legal,
valid, and binding obligation of Fix-Cor and Stockholder, and (subject to
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applicable bankruptcy, insolvency, and other laws affecting the enforceability
of creditors' rights) is enforceable as to Fix-Cor and Stockholder in accordance
with its terms.
(g) The execution, delivery, and performance of this Agreement will not
violate or result in a breach of any term of Fix-Cor's certificate of
incorporation (or other charter document) or of Fix-Cor's by-laws; and the
execution, delivery, and performance of this Agreement by Fix-Cor and
Stockholder will not violate, result in a breech of, or constitute a default
under any term of any of the following agreements: Loan and Security Agreement
with Xxxxxx Xxxxxxxx Capital Corporation, and the Purchase and Sale Agreement
with Quantum Chemical Corporation.
(h) After reasonable investigation, counsel has no actual knowledge of any
consent of, or declaration or filing with, any governmental authority which is
required of Fix-Cor for execution or performance of this Agreement by Fix-Cor.
(i) After reasonable investigation, such counsel has no actual knowledge
of any action, suit, or proceeding pending or threatened against Fix-Cor at law
or in equity, or before any federal, state, municipal, or other governmental
department, commission, board, bureau, agency, or instrumentality that
(i) Can reasonably be expected to result in any materially adverse change
in the business, properties, operations, prospects, or assets, or in the
condition, financial or otherwise, of Fix-Cor, or
(ii) Seeks to prohibit or otherwise challenge the consummation of the
transaction contemplated by this Agreement.
Section 4.03 Accountants' Letter
(a) Fix-Cor and Stockholder shall deliver to the Purchaser on the date of
Closing, a letter from a Certified Public Accountant addressed to Purchaser in
form and substance satisfactory to Purchaser, stating, in effect:
(1) They are, and during the period covered by their report relating to
the financial statements referred to in Section 1.03 they were, certified public
accountants with respect to Fix-Cor.
(2) On the basis of procedures (but not an examination made in accordance
with generally accepted auditing standards) consisting of a reading of the
latest available unaudited consolidated interim financial statements of Fix-Cor
(with an indication of the date of the latest available unaudited interim
financial statements), a reading of the latest available minutes of the
stockholders and Boards of Directors of Fix-Cor, inquiries to certain officers
and other employees of Fix-Cor responsible for financial and accounting matters,
and other specified procedures and inquiries, nothing has come to their
attention that caused them to believe that
13
(i) There was any change in the capital stock or debt of Fix-Cor or any
decrease in the net current assets or stockholders' equity of Fix-Cor as of the
date of the latest available consolidated monthly financial statements of
Fix-Cor or as of a specified date not more than five business days prior to the
date of that letter, each as compared with the amounts shown in the Last Balance
Sheet, other than as disclosed in this Agreement or any change or decrease
(which shall be set forth in that letter) which the Purchaser in its sole
discretion shall accept, or
Section 4.04 Review of Proceedings
(a) All actions, proceedings, instruments, and documents required to carry
out this Agreement or incidental thereto and all other related legal matters
shall be subject to the reasonable approval of counsel to the Purchaser, and
Fix-Cor and Stockholder shall have furnished that counsel those documents
counsel may have reasonably requested for the purpose of enabling him to pass
upon such matters.
Section 4.05 Legal Action
(a) There shall not have been instituted or threatened any legal
proceeding relating to, or seeking to prohibit or otherwise challenge the
consummation of, the transaction contemplated by this Agreement, or to obtain
substantial damages with respect thereto.
(b) There shall not have been any action taken, or any law, rule,
regulation, order, or decree proposed, promulgated, enacted, entered, enforced,
or deemed applicable to the transaction contemplated by this Agreement by any
federal, state, local, or other governmental authority, or by any court or other
tribunal, including the entry of a preliminary or permanent injunction, which,
in the sole judgment of Purchaser,
(i) Makes any of the transactions contemplated by this Agreement illegal,
(ii) Results in a delay in the ability of Purchaser to consummate the
transaction contemplated by this Agreement,
(iii)Imposes material limitations on the ability of Purchaser to
effectively to exercise full rights of ownership with respect to the properties
and assets purported to be sold pursuant to this Agreement, or
(iv) Otherwise prohibits, restricts, or delays consummation of the
transaction contemplated by this Agreement, or impairs the contemplated benefits
to Purchaser of the transaction contemplated by this Agreement.
Section 4.06 Title Insurance
(a) Purchaser shall have received, at or prior to the Closing, a
commitment for title insurance by a title insurance company or companies
designated by the Purchaser to issue an American Land Title Association Owner's
Policy Form B-1976 (or a policy Purchaser considers
14
its equivalent), and, if requested by Purchaser, a current survey certified to
Purchaser and to that title insurance company showing all improvements,
rights-of-way, and easements and no encroachments, all at Purchaser's expense,
with respect to the real property owned by Purchaser, that commitment to show to
the satisfaction of Fix-Cor that immediately prior to the time of the Closing,
Purchaser had good and marketable title in fee simple absolute to the real
property, free and clear of all liens, mortgages, security interests, pledges,
charges, and encumbrances (except those listed in Exhibit _).
Section 4.07 Release of Guarantee
(a) In so far as Purchaser is concerned and, by inference, in so far as
the stockholders of Purchaser are concerned (but not with regard to any
third-party lender), Stockholder shall be released at or prior to the Closing
from the guarantee of an obligation of Purchaser listed in Exhibit _ and, if any
suit or action of any kind should be initiated by any officer or stockholder of
Purchaser against Stockholder, the Purchaser shall defend Stockholder and hold
Stockholder harmless from any ensuing litigation which should arise, including
all attorney fees.
V. Conditions to Obligations of Fix-Cor and Stockholder
The obligations of Purchaser under this Agreement are subject, at the
option of Fix-Cor and Stockholder, to the following conditions:
Section 5.01 Accuracy of Representations and Compliance With Conditions
(a) All representations and warranties of Purchaser contained in this
Agreement shall be accurate when made and, in addition, shall be accurate as of
the Closing, as though the representations and warranties were then made in
exactly the same language by Purchaser and regardless of knowledge or lack
thereof on the part of Purchaser or changes beyond its control; as of the
Closing, Purchaser shall have performed and complied with all covenants and
agreements and satisfied all conditions required to be performed and complied
with by any of them at or before that time by this Agreement; and Fix-Cor and
Stockholder shall have received written assurances signed by an authorized
executive officer of Purchaser dated the date of the Closing to that effect.
Section 5.02 Review of Proceedings
(a) All actions, proceedings, instruments, and documents required to carry
out this Agreement or incidental thereto and all other related legal matters
shall be subject to the reasonable approval of counsel to Fix-Cor and
Stockholder, and Purchaser shall have furnished that counsel those documents
counsel may have reasonably requested for the purpose of enabling him to pass
upon such matters.
15
5.03 Legal Action
(a) There shall not have been instituted or threatened any legal
proceeding relating to, or seeking to prohibit or otherwise challenge the
consummation of, the transaction contemplated by this Agreement, or to obtain
substantial damages with respect thereto.
(b) There shall not have been any action taken, or any law, rule,
regulation, order, or decree proposed, promulgated, enacted, entered, enforced,
or deemed applicable to the transaction contemplated by this Agreement by any
federal, state, local, or other governmental authority, or by any court or other
tribunal, including the entry of a preliminary or permanent injunction, which,
in the sole judgment of Purchaser,
(i) Makes any of the transactions contemplated by this Agreement illegal,
(ii) Results in a delay in the ability of Fix-Cor and Stockholder to
consummate the transaction contemplated by this Agreement,
(iii) Imposes material limitations on the ability of Purchaser to
effectively to exercise full rights of ownership with respect to the
properties and assets purported to be transferred pursuant to this Agreement,
or
(iv) Otherwise prohibits, restricts, or delays consummation of the
transaction contemplated by this Agreement, or impairs the contemplated
benefits to Fix-Cor and Stockholder of the transaction contemplated by this
Agreement.
VI. Covenants and Agreements of Fix-Cor and Stockholder
Acquired Corporation and Stockholders covenant and agree as follows:
Section 6.01 Access
(a) Fix-Cor will afford the officers, employees, attorneys, agents,
investment bankers, accountants, and other representatives of Purchaser free and
full access to the plants, properties, books, and records of Fix-Cor, and will
permit them to make extracts from and copies of such books and records, and
will, from time to time, furnish Purchaser with additional financial and
operating data and other information as to the financial condition, results of
operations, business, properties, assets, liabilities, or future prospects of
Fix-Cor that Purchaser from time to time may request. Fix-Cor will cause its
independent certified public accountants to make available to Purchaser and its
independent certified public accountants the work papers relating to the audits
of Fix-Cor.
Section 6.02 Conduct of Business
(a) Fix-Cor will conduct their affairs so that at the Closing no
representation or warranty of Fix-Cor will be inaccurate, no covenant or
agreement of Fix-Cor will he breached,
16
and no condition in this Agreement will remain unfulfilled by reason of the
actions or omissions of Fix-Cor. Except as otherwise requested by Purchaser in
writing, until the Closing or the earlier rightful termination of this
Agreement, Fix-Cor will use its best efforts to preserve the business operations
of the former Quantum Chemical Company intact, and to the extent feasible (given
the fact that the plant did not operate for approximately one year) keep
available the services of their present personnel, to preserve in full force and
effect the contracts, agreements, instruments, leases, licenses, arrangements,
and understandings of the former Quantum Chemical Company, and to preserve the
goodwill of their suppliers, customers, and others having business relations
with any of them. Until the Closing or earlier rightful termination of this
Agreement, Fix-Cor will conduct the business and operations of the former
Quantum Chemical Company, in all respects, only in the ordinary course.
Section 6.03 Advise of Changes
(a) Until the Closing or the earlier rightful termination of this
Agreement, Fix-Cor and Stockholder will immediately advise Purchaser, in a
detailed written notice, of any fact or occurrence or any pending or threatened
occurrence of which any of them obtains knowledge and which (a) (if existing and
known at the date of the execution of this Agreement) would have been required
to be set forth or disclosed in or pursuant to this Agreement or an Exhibit
hereto, (b) (if existing and known at any time prior to or at the Closing) would
make the performance by any party of a covenant contained in this Agreement
impossible or make that performance materially more difficult than in the
absence of that fact or occurrence, or (c) (if existing and known at the time of
the Closing) would cause a condition to any party's obligations under this
Agreement not to be fully satisfied.
Section 6.04 Confidentiality
(a) Fix-Cor shall insure that all confidential information which it has
acquired directly or indirectly through Quantum Chemical Company, or through any
of its respective officers, directors, employees, attorneys, agents, investment
bankers, or accountants, or any former employees, attorneys, agents, investment
bankers, or accountants of Quantum Chemical Company, or any of its attorneys,
agents, investment bankers, or accountants may now possess or may hereafter
create or obtain relating to the financial condition, results of operations,
business, properties, assets, liabilities, or future prospects of Fix-Cor shall
not be published, disclosed, except as required in duly issued reports to
stockholders, or made accessible by any of them to any other person or entity at
any time or used by any of them except for the benefit of Purchaser.
Section 6.05 Public Statements
(a) Before Fix-Cor releases any information concerning this Agreement or
the transactions contemplated by this Agreement which is intended for or may
result in public dissemination thereof, Fix-Cor shall cooperate with Purchaser,
shall furnish drafts of all documents or proposed oral statements to Purchaser
for comments, and shall not release any information without the written consent
of Purchaser. Nothing contained herein shall prevent Fix-
17
Cor or Stockholder from furnishing any information to any governmental authority
if required to do so by law.
VII. Covenants and Agreements of Purchaser
Purchaser covenants and agrees as follows.
Section 7.01 Conduct of Business
(a) Purchaser will conduct its affairs so that at the Closing no
representation or warranty of Purchaser will be inaccurate, no covenant or
agreement of Purchaser will be breached, and no condition in this Agreement will
remain unfulfilled by reason of the actions or omissions of Purchaser. Except as
otherwise requested by Fix-Cor in writing, until the Closing or the earlier
rightful termination of this Agreement, Purchaser will use its best efforts to
preserve the business operations of its company and preserve in full force and
effect the contracts, agreements, instruments, leases, licenses, arrangements,
and understandings of the Purchaser's business, in all respects, only in the
ordinary course.
Section 7.02 Advise of Changes
(a) Until the Closing or the earlier rightful termination of this
Agreement, Purchaser will immediately advise Fix-Cor and Stockholder, in a
detailed written notice, of any fact or occurrence or any pending or threatened
occurrence of which any of them obtains knowledge and which (a) (if existing and
known at the date of the execution of this Agreement) would have been required
to be set forth or disclosed in or pursuant to this Agreement or an Exhibit
hereto, (b) (if existing and known at any time prior to or at the Closing) would
make the performance by any party of a covenant contained in this Agreement
impossible or make that performance materially more difficult than in the
absence of that fact or occurrence, or (c) (if existing and known at the time of
the Closing) would cause a condition to any party's obligations under this
Agreement not to be fully satisfied.
Section 7.03 Confidentiality
(a) Purchaser shall insure that all confidential information which it has
acquired directly or indirectly or may now possess or may hereafter create or
obtain relating to the financial condition, results of operations, business,
properties, assets, liabilities, or future prospects of Purchaser shall not be
published, disclosed, except as required in duly issued reports to stockholders,
or made accessible by any of them to any other person or entity at any time or
used by any of them except for the benefit of Fix-Cor and Stockholder.
Section 7.04 Public Statements
(a) Before Purchaser releases any information concerning this Agreement or
the transactions contemplated by this Agreement which is intended for or may
result in public dissemination thereof, Purchaser shall cooperate with Fix-Cor,
shall furnish drafts of all
18
documents or proposed oral statements to Fix-Cor for comments, and shall not
release any information without the written consent of Fix-Cor. Nothing
contained herein shall prevent Purchaser from furnishing any information to any
governmental authority if required to do so by law.
VIII. Miscellaneous
Section 8.01 Brokerage Fees
(a) If any person shall assert a claim to a fee, commission, or other
compensation on account of alleged employment as a broker or finder, or alleged
performance of services as a broker or finder, in connection with or as a result
of the transaction contemplated by this Agreement, Fix-Cor and Stockholder shall
indemnify and hold harmless the Purchaser against and in respect of any and all
claims, suits, actions, and proceedings (formal or informal), investigations,
judgments, deficiencies, damages, settlements, liabilities, and legal and other
expenses (including legal fees and expenses of attorneys chosen by any
Indemnitee) as and when incurred arising out of or based upon that claim by that
person, and Fix-Cor and Stockholder shall, at their sole expense, defend any and
all suits, actions, proceedings (formal or informal), or investigations
involving the claim that may at any time be brought against any Indemnitee and
satisfy promptly any settlement or judgment arising therefrom; but, if Fix-Cor
and Stockholder fail to defend that suit, action, proceeding, or investigation
in a timely manner, Purchaser or any Indemnitee made a defendant therein or a
party thereto shall have the right to defend and settle the same and pay any
judgment or settlement pertaining thereto, as it or he may reasonably deem
appropriate, at the cost and expense of Fix-Cor and Stockholder. If, however, it
is ultimately determined in any suit, action, or proceeding (in which Purchaser
and all Indemnitees made a defendant therein or a party thereto were afforded
the opportunity to have their counsel participate in the defense) that Purchaser
or any Indemnitee made a defendant therein or a party thereto was the sole
employer of the broker or finder, or services were performed solely for
Purchaser or any Indemnitee made a defendant therein or a party thereto, then
Fix-Cor and Stockholder shall not be responsible under this Section 8.01 and
amounts theretofore paid by them by reason of this Section 8.01 shall be
reimbursed by Purchaser or the Indemnitee, as the case may be, who was the sole
employer.
Section 8.02 Further Actions
(a) At any time and from time to time, each party agrees, at its or his
expense, to take actions and to execute and deliver documents as may be
reasonably necessary to effectuate the purposes of this Agreement.
Section 8.03 Availability of Equitable Remedies
Since a breach of the provisions of this Agreement could not adequately be
compensated by money damages, any party shall be entitled, either before or
after the Closing, in addition to any other right or remedy available to it, to
an injunction restraining the breach or threatened breach and to specific
performance of any provision of this Agreement, and, in either case, no
19
bond or other security shall be required in connection therewith, and the
parties hereby consent to the issuance of such an injunction and to the ordering
of specific performance.
8.04 Survival
(a) The covenants, agreements, representations, and warranties contained
in or made pursuant to this Agreement shall survive the Closing and any delivery
of shares of Purchaser's Common Stock by Purchaser, irrespective of any
investigation made by or on behalf of any party.
8.05 Modification
(a) This Agreement and the Exhibits hereto set forth the entire
understanding of the parties with respect to the subject matter hereof (except
as provided in Section 8.04), supersede all existing agreements among them
concerning the subject matter, and may be modified only by a written instrument
duly executed by each party with the approval of the Board of Directors of each
corporate party.
Section 8.06 Notices
(a) Any notice or other communication required or permitted to be given
hereunder shall be in writing and shall be mailed by certified mail, return
receipt requested or by the most nearly comparable method if mailed from or to a
location outside of the United States, or delivered against receipt to the party
to whom it is to be given at the address of that party set forth in the preamble
to this Agreement (or to another address the party shall have furnished in
writing in accordance with the provisions of this Section 8.07) with a copy to
each of the other parties hereto. Any notice given to any corporate party shall
be addressed to the attention of the Corporate Secretary. Notice to the estate
of any party shall be sufficient if addressed to the party as provided in this
Section 8.07. Any notice or other communication given by certified mail shall be
deemed given at the time of certification thereof, except for a notice changing
a party's address which will be deemed given at the time of receipt thereof.
Section 8.07 Waiver
(a) Any waiver by any party of a breach of any provision of this Agreement
shall not operate as or be construed to be a waiver of any other breach of that
provision or of any breach of any other provision of this Agreement. The failure
of a party to insist upon strict adherence to any term of this Agreement on one
or more occasions will not be considered a waiver or deprive that party of the
right thereafter to insist upon strict adherence to that term or any other term
of this Agreement. Any waiver must be in writing and, in the case of a corporate
party, be authorized by a resolution of the Board of Directors or by an officer
of the waiving xxxxx.
Section 8.08 Binding Effect
20
(a) The provisions of this Agreement shall be binding upon and inure to
the benefit of Stockholder, Purchaser, and Fix-Cor, and their respective
successors and assigns, and each Stockholder, and his assigns, heirs, and
personal representatives.
Section 8.09 No Third-Party Beneficiaries
(a) This Agreement does not create, and shall not be construed as
creating, any rights enforceable by any person not a party to this Agreement.
Section 8.10 Separability
(a) If any provision of this Agreement is invalid, illegal, or
unenforceable, the balance of this Agreement shall remain in effect, and if any
provision is inapplicable to any person or circumstance, it shall nevertheless
remain applicable to all other persons and circumstances.
Section 8.11 Headings
(a) The headings in this Agreement are solely for convenience of reference
and shall be given no effect in the construction or interpretation of this
Agreement.
Section 8.14 Counterparts; Governing Law
(a) This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument. It shall be governed by and construed in
accordance with the laws of Delaware, without giving effect to conflict of laws.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
date (or dates) set forth below.
Purchaser Fix-Cor Industries, Inc.
/s/ Xxxxxx X. Xxxxx /s/ Xxxx XxXxxxxxxxxx
----------------------------------- -------------------------------------
By: Xxxxxx Xxxxx By:
Title: Assistant Secretary Title: President
Dated: 4-16-97 Dated: 4-16-97
----------------------------- -------------------------------
Stockholder
/s/ Xxxx Xxxxxx
-----------------------------------
Xxxx Xxxxxx
Dated: 4-16-97
-----------------------------
21
NOTARY PUBLIC
SUBSCRIBED AND SWORN TO before me, __________________, a duly licensed
officer of the Court and administer of oaths, by Xxxx Xxxxxx, Xxxxxx Xxxxx and
Xxxx DeLorentis, all of whom were personally identified and all of whom further
averred that their signatures above have been duly authorized by their
respective corporate bodies and said signatures appear hereon by each party's
own free will.
/s/ X. Xxx
--------------------------------------------------
My Commission Expires
-----------------------------
X. Xxx
Notary Public, State of Ohio,
My Commission Expires
Dec. 28, 2000
22
Exhibit A to Exhibit 8
PURCHASE AND SALE AGREEMENT
THIS AGREEMENT made this 14th day of August, 1996, by and between QUANTUM
CHEMICAL CORPORATION, a Virginia corporation having its principal offices at
00000 Xxxxxxxxx Xxxxx, Xxxxxxxxxx, Xxxx 00000 ("Quantum"), and FIX-CORP
INTERNATIONAL, INC., an Ohio Corporation, having its principal offices at 00000
Xxxxx Xxxx, Xxxxx 000, Xxxxxxxxx, XX 00000 ("Buyer");
WITNESSETH:
WHEREAS, Quantum owns and has operated facilities at
Heath, Ohio, for the recycling of post consumer
polyethylene and other plastic resins; and,
WHEREAS, Quantum desires to sell such facilities and
portions of its post-consumer recycling business
associated therewith to Buyer; and
WHEREAS, Buyer desires to purchase such facilities and
portions of the post-consumer recycling from Quantum
upon the terms and conditions set forth in this
Agreement.
NOW, THEREFORE, in consideration of the mutual agreements set forth in this
Agreement, the parties hereto do hereby agree as follows:
1. ASSETS TO BE ACQUIRED. Subject to the terms and conditions set
forth in this Agreement, at Closing (as later defined) Quantum agrees to sell,
convey, transfer, assign and deliver to Buyer and Buyer agrees to purchase and
accept, as hereinafter provided, the following assets, rights and property (i)
constituting Quantum's Resource Recovery plant at Heath. Ohio and (ii) relating
to portions of Quantum's post-consumer plastic recycling business (collectively
referred to as the "Assets").
1.01. A parcel of land and all buildings and improvements upon it (the
"Premises") as described more full described in Schedule 1.01A, subject to the
reservations, easements, and
exceptions set forth in Schedule 1.01B and the existing or potential claims,
litigation, suits, charges, actions, governmental investigations or other
proceedings set forth in Schedule 5.08.
1.02. Personal property consisting of two parallel plastics recycling
lines (known as Line 7 and Line 8) composed of three primary processing areas
(dry processing, wet processing and finishing); bulk blending; truck scale;
office and shipping facilities; and other machinery and equipment. A listing of
the machinery and equipment for Line 7 and Line 8, plant support and obsolete
machinery and equipment to be sold and purchased is set forth in Schedule 1.02A.
Those assets attributable to that portion of Quantum's post consumer plastics
recycling business which is to be acquired by Buyer are set forth in Schedule
1.02B. Notwithstanding those items set forth on Schedule 1.02A, it is the
intention of the parties that all personal property, fixtures, equipment and
improvements located in the facility as of August 12, 1996 shall be included in
the personal property being sold to Buyer as set forth in Schedule 1.02A and
1.02B.
1.03. Buyer shall not purchase or acquire from Quantum pursuant to this
Agreement:
(a) Quantum's accounts receivable or notes receivable attributable to
Quantum's post-consumer plastics recycling business;
(b) Any of Quantum's covered xxxxxx rail cars and vehicles not listed in
Schedule 1.02A;
(c) Any trade name of Quantum or any right to use any trade name of
Quantum;
(d) Any trademarks of Quantum or any right to use any trademarks of
Quantum;
(e) Any portion of Quantum's post consumer plastics recycling business
not set forth in Schedule 1.02B;
(C) Any finished goods inventories not located upon the Premises at
Closing;
(g) Any office equipment (including, but not limited to, personal
computers, Telephones and copy machines) located upon the Premises
at Closing and covered under master leases held by Quantum or owned
by Quantum which is not listed in Schedule 1.02A; and,
2
(h) Any records or documents related to the operation of the Assets
which are not located on the Premises at Closing.
2. PURCHASE PRICE. Buyer shall pay to Quantum for the Assets a total
purchase price of THREE MILLION FOUR HUNDRED THOUSAND DOLLARS ($3,400,000.00)
(the "Purchase Price").
2.01. The parties have agreed to allocate the purchase price among the
Assets on the basis set forth in Schedule 2.01.
2.02. The Purchase Price shall be paid as follows:
(a) TWO HUNDRED FIFTY THOUSAND DOLLARS ($250,000.00) to be paid upon the
signing of this Agreement and to be held and administered in
accordance with the terms and conditions of this Agreement;
(b) THREE MILLION ONE HUNDRED FIFTY THOUSAND DOLLARS ($3,150,000.00) to
be paid at Closing;
2.03. The payment specified in Sections 2.02(a) shall be allocated as
follows:
(a) FIFTY THOUSAND DOLLARS ($50,000.00) shall be deemed to be a
non-refundable deposit, subject only to Section 2.03(c), required by
Quantum in order to remove sale of the facility from the market
pending the Closing of this transaction.
(b) TWO HUNDRED THOUSAND DOLLARS ($200,000.00) to be held in trust by
Quantum's attorney subject to release of Buyer's contingencies.
(c) In addition to the other terms and conditions set forth in this
agreement, the deposits referred to Section 2.03(a) and (b) above
shall be refunded to Buyer if Quantum fails to perform any of the
terms or provisions of this agreement and/or any representation of
Quantum as set forth in this agreement is not true or accurate.
3. CLOSING.
3.01. The consummation of the sale and acquisition of the Assets pursuant
to this Agreement ("Closing") shall take place at the offices of Quantum at
00000 Xxxxxxxxx Xxxxx, Xxxxxxxxxx, Xxxx, during normal banking hours, Eastern
Standard Time, at a mutually convenient
3
and agreeable date and as soon as practical after Buyer has been satisfied with
respect to or has waived the due diligence contingencies set forth in Section
9.04, but in no event later than sixty-six (66) days after the execution of this
Agreement. In the event the transaction does not close within said sixty-six
(66) day period, subject to the conditions precedent set forth in this
Agreement, this Agreement shall terminate in accordance with Section 11.03 or
any other provision dealing with termination based up failure to release
contingencies.
3.02. At Closing Quantum will deliver to Buyer a general warranty deed in
the form of Exhibit A to this Agreement for the Plant, a xxxx of sale in the
form of Exhibit B to this Agreement for the remainder of the Assets and such
other documents as specified in Section 9 of this Agreement or as mutually
agreed by the parties or as reasonably required by Buyer.
3.03. At Closing Buyer will deliver to Quantum all documents to be
delivered by Buyer to Quantum pursuant to Article 10 of this Agreement.
3.04. All documents to be delivered at Closing by either party to the
other shall have been reviewed and approved by the parties and their respective
legal counsel prior to Closing and as a condition precedent to Closing, subject
to the sixty-six day limit for Closing in Section 3.01.
4. TAXES. ASSESSMENTS. UTILITIES. TRANSFER TAXES AND FEES
4.01. Real estate and personal property taxes ("Tax" or "Taxes") imposed
upon the Assets for tax year 1995 have been or will be paid by Quantum. Quantum
shall give to Buyer at Closing a credit to the Purchase Price sufficient for
that portion of the 1996 Taxes representing Quantum's proportionate ownership of
the Plant during tax year 1996.
4.02. Any other similar ad valorem tax, tax or any special assessment
imposed on the real or personal property of the Plant shall be prorated between
Quantum and Buyer on the basis of the portion of the assessment period falling
before and after Closing, respectively.
4
4.03. The parties shall make all reasonable efforts to change the billing
for water, electricity, sewer, telephone and other utilities from Quantum to
Buyer as of the date of Closing. All charges for water, electricity, sewage,
telephone and other utilities for the billing period encompassing Closing shall
be prorated between Buyer and Quantum as of Closing.
4.04. Any payments by either party to the other pursuant to Sections 4.02
and 4.03, or the prorations therein prescribed, shall be made within ten (10)
business days after receipt of invoices from the payee.
4.05. Buyer will pay or reimburse Quantum for all taxes, fees or other
charges payable to any federal, state or local governmental entity, except taxes
on or measured by the net income of either party or taxes imposed upon Quantum
as a result of any gain on this transaction, as a result of the sale or transfer
of the assets and business pursuant to this Agreement or any documents executed,
filed or recorded in connection with this Agreement.
5. REPRESENTATIONS AND WARRANTIES OF QUANTUM
Quantum represents and warrants as follows:
5.01. Quantum is a corporation duly organized, validly existing and in
good standing under the laws of the Commonwealth of Virginia and is qualified
and in good standing as a foreign corporation in the State of Ohio.
5.02. Quantum has full corporate power and authority to make and perform
this Agreement and to transfer and vest in Buyer title to all of the Assets.
5.03. The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated by this Agreement by Quantum have
been or will have been, prior to Closing, duly authorized by all requisite
corporate action.
5
5.04. The execution of this Agreement by Quantum and the performance of
its obligations under this Agreement will not violate any contract, mortgage,
indenture or similar agreement or restriction to which Quantum is a party or
constitute a default under any collective bargaining agreement or other
agreement to which Quantum is a party and which pertains to the Plant.
5.05. Quantum has and will convey to Buyer fee simple title to all of
the real estate and appurtenances set forth in Schedule 1.01 A free and clear
of all liens, encumbrances or other charges, except as disclosed in Schedule
1.01B with possession of the Premises and Assets to take place immediately
after Closing.
5.06. Quantum is the sole and exclusive title owner of all the personal
and other tangible property to be transferred to Buyer as set forth in Schedule
1.02A and Schedule 1.02B. Quantum shall transfer such assets to Buyer in the
same condition they were in on June 5, 1996, ordinary wear and tear excepted,
free and clear of all liens, encumbrances and/or claims by any other person or
entity except those listed on Schedule 5.08.
5.07. Quantum's facility is in compliance in all material respects with
all laws, regulations, ordinances, decrees and orders relating to health and
environmental controls, including but not limited to sprinkler system and
pollution control equipment relating to health and environmental controls.
5.08. Except with respect to the matters listed in Schedule 5.08 or to
which Quantum has given or shall give notice to Buyer in writing, there are (a)
no litigation, suits, charges, actions, findings, governmental investigations,
reports or orders or other proceedings of any kind or nature threatened or
pending against Quantum which would materially effect Quantum's right to convey
the real and personal property required by this Agreement. (Such governmental
6
investigations and reports as referred to above shall include the Department of
Labor, OSHA and any EPA agency; the plant, facility and assets are not subject
to any contract or agreement with any labor union, organization or collective
bargaining agreement which would be subject to of materially effect transfer of
the assets as contemplated by this agreement; that none of the restrictions and
matters set forth in Schedule 1.01B, materially affect the use and operation of
the facility and assets), and (b) no administrative or judicial proceedings
arising under any federal, state or local law or provision relating to the
regulation of the discharge of materials into the environment or otherwise
relating to the protection of health and environment, whether initiated by a
third party or by Quantum, pending or, to the knowledge, information and belief
of Quantum, threatened against or relating to or involving the Premises or
Assets or the business to be sold to Buyer pursuant to this Agreement, or the
transaction contemplated by this Agreement.
5.09 EXCEPT AS OTHERWISE PROVIDED HEREIN, THERE ARE NO EXPRESS OR IMPLIED
WARRANTIES THAT APPLY TO THE TRANSACTIONS CONTEMPLATED HEREIN AND QUANTUM
SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY AND ANY IMPLIED
WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE.
5.10 That the plant, facility and assets are not subject to any contract
or agreement with any labor union, organization or collective bargaining
agreement.
7
5.11 That the plant, facility and assets are not subject to any employee
or employment contracts, employment benefit or retirement programs of any kind
or nature as such relate to this Agreement.
5.11A That Quantum's Resource Recovery plant located at Heath, Ohio when
shut down in October, 1995 was fully operational and would produce the goods
and/or products for which it was intended and which it has in the past produced
and sold and no modifications or changes to the equipment, plant and facility
have been made since October, 1995 which, to the best of Quantum's knowledge,
would prevent the facility from starting up and becoming operational. Further
that operation of the facility in its current condition which is consistent with
its operation in October, 1995 will not violate any Environmental statute,
regulation or order. Any previous additions or modifications to the plant and
facility by 3DM are not being warranted by Quantum as to their environmental
qualifications or acceptability.
5.12 All inventories, buildings, and fixed assets owned or leased by
Quantum located at the facility in Heath, Ohio are and will be adequately
insured against fire to the closing date and valid policies therefore are and
will be outstanding and duly in force and the premiums will be paid prior to the
closing date.
5.13 That Quantum will make available after Closing for a period of one
(1) year as time permits and with reasonable notice from Buyer, personnel to
consult with Buyer and to assist Buyer in re-starting the plant and equipment to
the extent that Quantum employs such personnel. Quantum will also make available
to Buyer any and all records, manuals, permits, drawings, blueprints,
specifications, etc. which deal with equipment specifications and operation,
overall operation of the facility and building layout, design and construction.
During the period of time from the Closing until 90 days thereafter, Buyer will
not be charged by Quantum for any expenses
8
incurred by Quantum in sending its personnel to the facility to assist and
consult with the Buyer. Thereafter, Buyer will be responsible for paying Quantum
for expenses incurred by Quantum's personnel in travel to and from the facility.
6. REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants as follows:
6.01. Buyer is a corporation duly organized and validly existing under the
laws of the State of Ohio and is in good standing therewith.
6.02 Buyer has full corporate power and authority to make and perform
this Agreement and to acquire title to the Assets Buyer is purchasing under this
Agreement.
6.03. The execution, delivery and performance of this Agreement and the
documents contemplated by this Agreement due from Buyer at Closing have been or
will have been, prior to Closing, duly authorized by all requisite corporate
action.
6.04. Buyer will complete its due diligence (including, but not limited
to, physical inspection of the Premises, the personal property and machinery and
equipment) prior to Closing based upon the fact that Buyer is not fully aware of
the condition of the Premises and machinery and equipment, and does not have
sufficient knowledge and awareness of any potential claims which it may need to
assume or resolve.
7. SURVIVAL OF REPRESENTATIONS
The representations and warranties of Quantum and Buyer contained in this
Agreement shall survive Closing in accordance with the applicable statutes of
limitations.
8. COVENANTS AND AGREEMENTS
8.01. Except as provided elsewhere in this Agreement, Buyer shall assume
no liabilities of Quantum including, without limiting the foregoing, any
accounts payable relating to the
9
Premises, the Assets and the portions of the business to be acquired or any
liability of Quantum arising from acts or events occurring prior to Closing.
8.02. Except as provided elsewhere in this Agreement, Quantum agrees to
defend, indemnify and hold harmless Buyer, its officers, directors and employees
against and in respect of any and all claims, losses, costs, expenses,
obligations and liabilities (including without limiting the foregoing, and
subject to the provisions of Section 8.05, below, costs and expenses of
litigation and reasonable attorneys' fees) to the extent they arise or result
from or relate to (i) any breach by Quantum of any of its representations,
warranties, guarantees, agreements, commitments or covenants in this Agreement,
(ii) the operations at or upon the Premises and Quantum's plastics recycling
business prior to Closing which shall include, but not be limited to, any
liability arising out of or associated with any product, goods or processes
sold, delivered or distributed by Quantum, or (iii) any obligation, debt or
liability which Quantum shall have agreed to pay, perform or discharge pursuant
to this Agreement and/or any undisclosed debt, liability or obligation which
occurred, arose or accrued prior to Closing. This Section 8.02 shall not apply
to nor include any and all claims, losses, costs, expenses, obligations and
liabilities related to environmental damage, contamination, pollution, toxic or
hazardous chemicals which claims, losses, costs, expenses, obligations and
liabilities are the subject matter of a separate environmental indemnification
agreement between the parties in the form of Exhibit C to this Agreement.
8.03. Buyer agrees to and does hereby indemnify, defend and hold Quantum,
its officers, directors and employees harmless against and in respect of any and
all claims, losses, costs, expenses, obligations and liabilities (including
without limiting the foregoing, and subject to the provisions of Section 8.05
hereof, costs and expenses of litigation and reasonable attorneys' fees)
10
to the extent they arise or result from or relate to (i) any breach by Buyer of
any of its representations, warranties, guarantees, commitments or covenants in
this Agreement, (ii) the operations at or upon the Premises and Buyer's plastics
recycling business on and after Closing to the extent unrelated to the items set
forth in Section 8.02(iii) above, or (iii) any obligation, debt or liability
which Buyer shall have agreed to pay, perform or discharge pursuant to this
Agreement. This Section 8.02 shall not apply to nor include any and all claims,
losses, costs, expenses, obligations and liabilities related to environmental
damage, contamination, pollution, toxic or hazardous chemicals which claims,
losses, costs, expenses, obligations and liabilities are the subject matter of a
separate environmental indemnification agreement between the parties in the form
of Exhibit C to this Agreement.
8.04. The indemnification provided for in Sections 8.02 and 8.03 shall
include any and all claims of liability of any type or nature against the
Indemnitee (as this term is defined in Section 8.05, below), except for claims
of gross negligence or willful misconduct against the Indemnitee.
8.05. With respect to any claim for which indemnification is sought
pursuant to this Agreement, the party seeking indemnification ("Indemnitee")
shall promptly after knowledge of such claim, notify in writing the party from
whom indemnification is sought or is owed ("Indemnitor"), in as much detail as
is feasible, of the existence and nature of the claim. At its sole cost and
expense, and with counsel of its choosing, Indemnitor shall defend against any
claim of a third party and shall pay any resulting settlements, judgments or
decrees. Indemnitee must have taken reasonable steps to mitigate any damages
resulting from any such third party claim. In its notice to the Indemnitor,
Indemnitee must grant to Indemnitor the full power, authority and right on
Indemnitee's behalf to control the defense or settlement of any such claim, so
long as
11
Indemnitor diligently prosecutes the defense of the claim or suit. Indemnitor
shall keep Indemnitee informed at all times as to the status of the claim, and
Indemnitee may, at its own election and expense, participate in the defense of
any such claim. Should the Indemnitor, after the Indemnitee has fulfilled its
obligations under this Section, fail to defend or to prosecute diligently the
defense of any claim of a third party, the Indemnitee, without waiving any
rights against the Indemnitor, may defend or settle any such claim and shall be
entitled to recover from the Indemnitor the amount of any settlement or judgment
or decree and all costs and expenses, including, without limitation, reasonable
attorneys' fees. Each of the parties to this Agreement shall extend reasonable
cooperation to the other parties in connection with such defense or settlement.
The right of the Indemnitor to defend against any such claim shall be limited by
the right of an insurance company to defend against the claim if the claim
involves an insured risk.
8.06. After Closing Quantum shall give Buyer, its counsel, accountants,
engineers and other representatives access to the Assets' operational records,
including customer lists, which had been stored and/or were available prior to
Closing either at the adjacent compounding plant or off site of the Plant.
Access to such records shall be granted at reasonable times during the regular
daytime work hours of the facility or facilities in which the records and
documents are stored. Representatives of Buyer inspecting these records and
documents must upon request of Quantum execute confidentiality agreements and
must comply with the safety and security regulations of the facility in which
such inspections are made. Quantum shall have the right to have representatives
present at all times during such inspections. Buyer shall have the right to make
copies of such records and documents and shall reimburse Quantum for its costs
in making any such copies.
12
8.07. Buyer recognizes that Quantum has shared operations and operating
systems between the Premises and the adjacent compounding plant. Buyer will
grant access to the Premises to Quantum, its employees, agents and contractors
for the purpose of utilizing, repairing, replacing, maintaining or disconnecting
shared operations and operating systems for which Quantum shall be financially
responsible. With respect to the shared operations or operating systems, Quantum
and Buyer agree that:
(a) Within twelve (12) months after Closing, Quantum shall disconnect
its adjacent compounding plant from the Premises' fire pump system
at Quantum's sole expense;
(b) Buyer shall grant to Quantum an easement, in the form of Exhibit D
to this Agreement, for the purpose of ingress and egress to and
utilization of the truck scale and the rail car unloading area;
(c) Quantum will maintain and repair the unloading ramps for the rail
car unloading area within the easement granted to it by Buyer at its
sole expense; and
(d) Buyer will maintain and repair the truck scale upon the Premises so
as to keep its operation in accordance with the standards of the
State of Ohio for certified scales at its sole expense.
8.08. Quantum shall lease to Buyer, in the form of Exhibit E to this
Agreement, sufficient linear footage for three (3) rail car spots on the
railroad spur located upon the premise of Quantum's adjacent compounding plant.
8.08A. This agreement is contingent upon Buyer's due diligence and
approval of Sections 8.07 and 8.08 above prior to Closing. Should Buyer after
completion of its due diligence find the provisions of Sections 8.07 and/or
8.08 to interfere with operation of the equipment, plant or facility or cause
excessive expense, the parties shall first endeavor to negotiate a resolution
thereof. If they cannot resolve their differences, then this agreement shall
terminate,
13
Buyers full deposit shall be returned and each of the parties shall be released
from the terms and conditions of this agreement.
8.09. Without Quantum's prior approval, Buyer shall not accept any return
of products purchased by Quantum's post-consumer plastic resin customers from
Quantum. In the event any customer attempts to return product or notifies Buyer
that it intends to return product sold by Quantum, Buyer shall immediately
notify Quantum and shall inform Quantum of any reasons stated by a customer for
the return of product. Quantum shall then deal directly with the customer
concerning such return of product and any credits or refund associated therewith
and shall defend, save harmless and indemnify Buyer in regard to any matters
associated therewith.
8.10. Buyer shall not use "Quantum", "Quantum Chemical" or any other
similar name for the Premises or the business operated at the Premises which
might create the false or erroneous appearance or impression that the Premises
is owned or operated by Quantum after the Closing without specific written
consent from Quantum, although Buyer shall be entitled to retain as its own and
use the telephone number(s) which Quantum used during its ownership of the
facility.
8.11. Quantum agrees to immediately cease any further attempts to market,
sell or dispose of the Assets and/or Premises to, and to solicit offers for the
purchase or transfer of the Assets and/or Premises from, any prospective third
party purchasers or transferee unless or until this Agreement is terminated.
8.12. For the period between the execution of this Agreement and Closing,
Buyer shall have the right to limited, escorted access to the Premises in order
to complete its due diligence and/or to show the Premises and machinery and
equipment to lenders, investors and employees and to determine how to operate
the facility and Buyer's obligation pursuant to this agreement is
14
contingent upon completion of such due diligence to Buyer's satisfaction prior
to Closing. In no event will Buyer be permitted to operate the machinery or
equipment without Quantum's written consent and without a representative of
Quantum present or to make improvements, modifications or repairs to the
Premises or the machinery and equipment prior to Closing without Quantum's
written consent. Buyer shall make prior arrangements with Quantum's designee for
access to the Premises.
9. CONDITIONS PRECEDENT TO BUYER'S OBLIGATION TO CLOSE. The obligation
of Buyer to proceed with Closing are, at Buyer's option, subject to the
satisfaction, waiver or release of the following conditions on or before
Closing.
9.01. All of the representations and warranties made by Quantum in this
Agreement shall be true and correct as of the time of Closing.
9.02. Quantum shall have delivered to Buyer an opinion of Quantum's
counsel, dated as of Closing, to the effect that:
(a) Quantum is a corporation duly organized, validly existing and in
good standing under the laws of the Commonwealth of Virginia and is
qualified and in good standing as a foreign corporation in the State
of Ohio.
(b) All proceedings required by law or by the provisions of this
Agreement or by Quantum's certificate of incorporation or by-laws,
or any other document binding upon Quantum, to be taken by Quantum
in connection with the due consummation of the transactions
contemplated by this Agreement have been duly and validly taken.
(c) Quantum has complete and unrestricted power to sell, convey,
transfer, assign and deliver to Buyer all of the assets to be sold
by Quantum to Buyer under this Agreement.
(d) The sale, conveyances, transfers, and deliveries under this
Agreement to Buyer are not in contravention of any applicable
federal, state or local law, or of any contract, indenture or other
instrument or document to which Quantum is a party or is bound.
15
9.03. The Assets and the intended use thereof are not or have not been
adversely affected in a material way by a casualty or other event, whether
insured or uninsured, between the date of this Agreement and Closing. If such a
casualty or other event occurs, Buyer shall have the option: (i) proceed with
Closing according to the terms of this Agreement, (ii) proceed with Closing
except that the Purchase Price shall be reduced by the dollar amount of the cost
of repair or replacement of the assets affected, providing the parties to this
Agreement can agree on said dollar amount, or (iii) terminate this Agreement, in
which event the parties shall have no further obligation under this Agreement
and Buyer's entire deposit as set forth in Section 2.02(a) shall be immediately
returned to Buyer. Buyer may elect course (ii) and then select course (i) or
(iii) in the event the parties are unable to agree on the cost of repair or
replacement. For purposes of this Section 9.03 only, "adversely affected in a
material way" shall mean an estimated cost of $250,000.00 or more.
9.03A. Buyer makes a good faith effort to complete its financing of this
transaction by obtaining a firm commitment from its lender or lenders within
sixty-six (66) days after the date this Agreement is executed. If Buyer does not
obtain a firm commitment for financing satisfactory to Buyer or if this
financing contingency is not waived and/or released by Buyer in writing prior to
Closing, then all but $50,000.00 of Buyer's deposit as described in Section
2.02(a) shall be promptly returned to Buyer and the parties shall each be
released from further liability on this Agreement and Quantum shall be entitled
to retain $50,000.00 of Buyer's deposit free and clear of any claim by Buyer.
9.04 Buyer's obligation to Close this transaction is further contingent
upon Buyer's completion of its due diligence within twenty one (21) days after
execution of this Agreement by all parties and further that the results of the
Buyer's due diligence is satisfactory to Buyer. Such
16
due diligence shall include but not be limited to the following: (a) Buyer
verifying and being satisfied that the assets being purchased are sufficient to
currently startup and operate the facility and are of the quality represented;
(b) Buyer being satisfied that Quantum's shutting down of the shared operation
as described in Section 8.05 and those matters described in Sections 8.07 and
8.08 above will not interfere with Buyer's operation of the facility or cause
Buyer to incur additional expenses associated with the shut down and/or the
operation of its facility thereafter; (c) Buyer being satisfied that the
facility as shut down and when started up and operated after the Closing is in
conformance with all Environmental laws, statutes, regulations and orders and
has not been notified of any violation in regards thereto and all equipment
located in the facility used to comply with Environmental laws, statutes,
regulations and orders is operating and in good order and repair; (d) Buyer
being satisfied that the plant and facility can be operated and will manufacture
the products as represented by Quantum; (e) Buyer being satisfied that it will
be able to obtain assistance from Quantum in putting the plant and facility back
into operation; and (f) review of Quantum's financials relating to this
transaction as described on Schedule 5.08A. This contingency must be released in
writing by notice from the Buyer to Quantum within Twenty one (21) days after
execution of this Agreement as provided above, otherwise should Buyer fail to
release this contingency in writing, each of the parties' obligations pursuant
to this Agreement shall terminate and each shall be released therefrom with
Buyer's payment/deposit as described in Section 2.02(a) being returned to Buyer
within five (5) days thereafter.
10. CONDITIONS PRECEDENT TO QUANTUM'S OBLIGATION TO CLOSE. The
obligation of Quantum to proceed with Closing are, at Quantum's option, subject
to the satisfaction, waiver or release of the following conditions on or before
Closing.
17
10.01. Quantum have received the consideration to be paid at or before
Closing by Buyer to Quantum pursuant to Sections 2.02(a) and 2.02(b).
10.02. Buyer shall have delivered to Quantum an opinion of Buyer's counsel
dated as of Closing, to the effect that:
(a) Buyer is a corporation duly organized and validly existing under the
laws of the State of Ohio and in good standing therewith.
(b) All proceedings required by law or by the provisions of this
Agreement or by Buyer's articles of organization or operating
agreement, or any other document binding upon Buyer, to be taken by
Buyer in connection with the due consummation of the transactions
contemplated by this Agreement have been duly and validly taken.
(c) Buyer has complete and unrestricted power to purchase and accept all
of the assets sold by Quantum to Buyer under this Agreement and the
specific power and authority to execute the promissory note and
mortgage contemplated by this Agreement.
(d) That the purchase and receipt of the Assets from Quantum are not in
contravention of any applicable federal, state or local law, or of
any contract, indenture or other instrument or document to which
Buyer is a party or is bound.
11. MISCELLANEOUS.
11.01. BROKER'S. Quantum and Buyer each represents to the other that it has
not retained any broker or finder and that no fee, commission or other
compensation is payable to any broker or finder in connection with the
transactions contemplated by this Agreement as a result of each one's respective
actions.
11.02. PUBLICITY. Buyer agrees that it will make no public statements,
press releases or announcements regarding this transaction until Closing. Should
the Buyer breach this provision, then Quantum shall have the right, at its sole
discretion, to retain the payment made pursuant to Section 2.02(a) and to
terminate this Agreement without recourse by Buyer.
18
11.03. SURVIVAL OF TERMS. In the event this Agreement is terminated by
either party, Sections 8.02 (Quantum's Indemnification of Buyer), 8.03 (Buyer's
Indemnification of Quantum), 8.04 (Exceptions to Indemnification), 8.05 (Claims
for Indemnification) and 11.02 (Publicity) shall survive such termination and
shall be effective in accordance with their respective terms.
11.04. PARTIES. This Agreement shall inure to the benefit of and be binding
upon the parties to this Agreement and their respective successors and assigns.
11.05. ENTIRE AGREEMENT. This Agreement contains the full and complete
agreement between the parties with respect to the sale by Quantum and purchase
by Buyer of the assets which are the subject matter of this Agreement. This
Agreement may only be modified or amended by written instrument signed by both
parties.
11.06. NOTICES. All notices, requests, demands and other communications
either required or given under this Agreement shall be in writing and shall be
deemed to have been duly given on the date of delivery in person to the officers
named below or three (3) days after mailing by certified or registered mail,
postage prepaid, return receipt requested to the following address:
IF TO QUANTUM: IF TO BUYER:
Quantum Chemical Company Fix-Corp International, Inc.
00000 Xxxxxxxxx Xxxxx 00000 Xxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000 Xxxxxxxxx, XX 00000
Attention: President Attention: President
or such other address or person as the parties may designate from time to time.
11.07. APPLICABLE LAW. This Agreement shall be construed and enforced in
accordance with the laws of the State of Ohio.
19
11.08. SCHEDULES AND EXHIBITS. All schedules and exhibits referred to in
this Agreement are incorporated into and made a part of this Agreement.
11.09. BULK SALES. Quantum and Buyer agree that the Uniform Commercial Code
and other statutes relating to the bulk sale or transfer of property are not
applicable to the transactions contemplated by this Agreement.
11.10. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original. This Agreement and any
counterpart so executed shall be deemed to be one and the same instrument. It
shall not be necessary in making proof of this Agreement or any counterpart of
this Agreement to produce or account for any of the other counterparts.
11.11. INVALIDITY. In the event any provision is held invalid or
unenforceable, the Parties shall attempt to agree on a valid or enforceable
provision which shall be a reasonable substitute for such invalid or
unenforceable provision in light of the tenor of the Agreement and, on so
agreeing, shall incorporate such substitute provision into this Agreement.
11.12. EXPENSES. Except as the parties may otherwise agreed, the parties
shall bear their respective fees, costs and expenses in connection with the
transactions contemplated by this Agreement.
11.13. WAIVER. No waiver by any party, whether express or implied, of any
right under any provision of the Agreement shall constitute a waiver of such
party's right at any other time or a waiver of such party's rights under any
other provision of the Agreement unless it is made in writing and signed by the
President or a Vice President of the party waiving the condition. No failure by
any party to this Agreement to take any action with respect to any breach of the
Agreement or default by another party shall constitute a waiver of the former
party's right to
20
enforce any provision of the Agreement or to take action with respect to such
breach or default or any subsequent breach or default by such other party.
11.14. SECTION HEADINGS. The section and subsection headings in this
Agreement are for convenience of reference only.
11.15. LIQUIDATED DAMAGES. In the event Buyer fails to consummate the
transaction for any reason other than the failure of the contingencies set forth
in this Agreement, Quantum will be entitled to retain as liquidated damages, in
lieu of any other damages, liabilities, cost or expenses incurred by Quantum and
in complete satisfaction of the Buyer's liabilities to Quantum on account of
such failure or action, Buyer's payment in the amount of TWO HUNDRED FIFTY
THOUSAND DOLLARS ($250,000.00) pursuant to Section 2.02(a).
11.16. TIME OF ESSENCE. The parties to this Agreement agree that time is of
the essence in the performance of duties and obligations required of or pursuant
to this Agreement.
11.17. RELEASE; TERMINATION. Upon execution of this Agreement, Quantum
hereby releases and discharges Buyer and Buyer's officers and directors from any
claims, demands or liabilities associated with Case No. A-96-2928 pending in the
Common Pleas Court of Xxxxxxxx County, Ohio. Furthermore, prior to the
completion of Closing, in the event that any legal action is commenced against
Buyer by any person or entity not a party to this transaction which has as a
basis for the claim alleged therein Buyer's proposed purchase of Quantum's
Heath, Ohio facility and/or any of the assets being set forth in this agreement,
then Buyer shall have the option of terminating this agreement and receiving an
immediate return of its payment/deposit made to Quantum as set forth in Section
2.02(a) above.
IN WITNESS WHEREOF, the parties to this Agreement have caused this
Agreement to be duly executed by their authorized representatives as of the day
and year first set forth above.
21
QUANTUM CHEMICAL CORPORATION FIX-CORP INTERNATIONAL, INC.
[Signatures -See Page 24]
By: By:
---------------------------- -----------------------------
Attest: Attest:
----------------------- -------------------------
22
IN WITNESS WHEREOF, the parties to this Agreement have caused this
Agreement to duly executed by their authorized representatives as of the day and
year first set forth above.
QUANTUM CHEMICAL CORPORATION FIX-CORP INTERNATIONAL, INC.
By: /s/ Xxxx X. Xxxxxx By: /s/ Xxxx Xxxxxx, Pres/CEO
---------------------------- -----------------------------
Attest: Attest:
----------------------- -------------------------
23
SCHEDULE 1.01A
DESCRIPTION OF REAL PROPERTY
A single parcel situated in the State of Ohio, County of Licking and City of
Heath of 9.5 acres more or less being more fully bounded and described as
follows:
BEING IN T-1, X-00 XX XXX XXXXXX XXXXXX MILITARY LANDS, AND IN THE
MID-OHIO INDUSTRIAL PARK, ADDITION NO. 3, AS RECORDED IN PLAT BOOK
13, PAGE 51, IN THE LICKING COUNTY DEED RECORDS, AND BEING MORE FULLY
BOUNDED AND DESCRIBED AS FOLLOWS:
BEING ALL OF RESERVE "A", XXX 00 XXX XXX XXXXXXXXX XXXXXXX XX XXX 00;
BEGINNING IN THE WESTERLY RIGHT OF WAY LINE OF XXXXX PARKWAY, SAID
POINT BEING THE SOUTHEAST CORNER OF SAID LOT 41;
THENCE SOUTH 89 DEG. 25'37" WEST, ALONG THE SOUTH LINE OF LOT 41,
662.49 FEET TO THE SOUTHWEST CORNER LOT 41;
THENCE NORTH 0 DEG. 45 '14" WEST, ALONG THE EASTERLY LINE OF THE NEW
YORK CENTRAL RAILWAY COMPANY, 243.50 FEET, TO A POINT;
THENCE SOUTH 89 DEG. 25'37" EAST, PASSING THROUGH LOT 41, A DISTANCE
OF 663.41 FEET TO A POINT;
THENCE SOUTH 0 DEG. 31 '52" EAST, PASSING ALONG THE WESTERLY RIGHT OF
WAY LINE OF XXXXX PARKWAY, 243.50 FEET TO THE PLACE OF BEGINNING;
THE ABOVE 10.00 ACRE SURVEY INCLUDES 0.79 ACRES IN RESERVE "A", 5.504
ACRES IN XXX 00 XXX 0.000 XXXXX XX XXX 00.
SUBJECT TO ALL LEGAL HIGHWAYS, ALL LIMITATIONS OF ACCESS TO PUBLIC
ROADS OR HIGHWAYS, LEASES AND RIGHTS OF WAY, ZONING REGULATIONS,
EASEMENTS OF RECORD AND RESTRICTIVE COVENANTS.
THE ABOVE DESCRIPTION WAS PREPARED AS THE RESULT OF A SURVEY BY
XXXXXXX X. XXXXXXXXX, REGISTERED SURVEYOR NO. 5242, DATED JULY 6,
1989.
BEING PART OF THE SAME REAL ESTATE CONVEYED BY XXXXXXX X. XXXXXX, XX.
AND XXXXXXXX X. XXXXXX, HIS WIFE, TO MID-OHIO DEVELOPMENT CORPORATION
BY DEED DATED DECEMBER 3, 1971, AND RECORDED IN VOLUME 681, PAGE 608,
DEED RECORDS, LICKING COUNTY, OHIO.
THIS PROPERTY IS SUBJECT TO THE RESTRICTIVE COVENANTS FOR MID-OHIO
INDUSTRIAL PARK ADDITION NO. 3, FILED FOR RECORD WITH THE LICKING
COUNTY RECORDER ON JULY 30, 1976, IN VOLUME 750, PAGE 363, DEED
RECORDS, LICKING COUNTY, OHIO.
SCHEDULE 1.01B
DESCRIPTION OF RESERVATIONS, EASEMENTS, RESTRICTIONS AND EXCEPTIONS
TO REAL PROPERTY
RESERVATIONS, EASEMENTS, RESTRICTIONS AND EXCEPTIONS OF RECORD
1. Mid-Ohio Industrial Park No. 3 is subject to those restrictive covenants
filed for record on July 30, 1976 at 11:00 A.M., in Volume 750, page 363 of
the Deed Records, Licking County, Ohio.
2. Mid-Ohio Development Corporation gave to Ohio Power Company an easement by
instrument dated August 4, 1976, and recorded in Volume 751, page 462, Deed
Records, Licking County, Ohio.
3. Xxxxxxx X. Xxxxxx, Xx. and Xxxxxxxx X. Xxxxxx, his wife, gave to Ohio Power
Company an easement by instrument dated January 22, 1969, and recorded in
Volume 643, page 670, Deed Records, Licking County, Ohio.
4. Xxxxxxx X. Xxxxxxxx and Xxx X. Xxxxxxxx gave to the State of Ohio an
easement for highway purposes by instrument dated March 17, 1930, and
recorded in Volume 1, page 159 of the Highway Easement Records in the
Office of the Recorder of Licking County, Ohio.
5. Xxxxxx Xxxxxxxxx and Xxx Xxxxxxxxx, his wife, gave to the Ohio Power
Company an easement by instrument dated January 17, 1934, and recorded in
Volume 307, page 278, Deed Records, Licking County, Ohio.
6. Xxxxxxxx Xxxx, unmarried, gave to Columbus & Southern Ohio Electric Company
an easement by instrument dated May 9, 1957, and recorded in Volume 495,
page 376 of the Deed Records, Licking County, Ohio.
7. X.X. Xxxxxxxx gave to Newark Heat & Light Co. an easement by instrument
dated May 24, 1910 and recorded in Volume 57, page 297, Lease Records,
Licking County, Ohio.
8. X.X. Xxxxxxxx and Xxx X. Xxxxxxxx gave to The Hopewell Fuel & Gas Co. an
easement by instrument dated June 7, 1930, and recorded in Volume 58, page
274, Lease Records, Licking County, Ohio.
9. X.X. Xxxxxxxx and Xxx X. Xxxxxxxx gave to X.X. Xxxxxx & Co. an easement by
instrument dated July 22, 1930, and recorded in Volume 58, page 368, Lease
Records, Licking County, Ohio.
10. There is an affidavit filed by Quantum Chemical Corporation stating that it
is the direct successor to Northern Petrochemical Company, dated January
20, 1989, and recorded in Volume 254 page 26, Official Records, Licking
County, Ohio.
11. Mid-Ohio Industrial Park Addition No. 3 is recorded in Plat Book 13, page
51, et seq. in the office of the Recorder of Licking County, Ohio. This
property is subject to those restrictions, reservations and easements as
shown on the plat of said subdivision. Said plat calls for minimum setback
of 50 feet from Xxxxx Parkway unless local regulations require a greater
setback. Utilities are 10 feet in width along all rear and side lot lines.
No septic tanks shall be used in the addition. All sanitary effluent shall
be processed through sewage treatment plants meeting the approval of the
Health Department.
12. Mid-Ohio Development Corporation gave to the City of Heath an easement for
the construction, operation, maintenance, and repair of a water line by
instrument dated October 13, 1989 and recorded in Volume 295, page 174,
Official Records, Licking County, Ohio.
13. Mid-Ohio Development Corporation gave to the City of Heath an easement for
the construction, operation, maintenance, and repair of a water line by
instrument dated October 13, 1989 and recorded in Volume 295, page 180,
Official Records, Licking County, Ohio.
14. Mechanics' Lien of Xxxxxxx Constructions Services dated June 10, 1996 and
recorded as document number 66466 in volume unknown at pages 217 through
224, Official Records, Licking County, Ohio.
RESERVATIONS EASEMENTS. RESTRICTIONS AND EXCEPTIONS TO BE GIVEN
15. Fix-Corp International, Inc. to give to Quantum Chemical Corporation an
easement for the purpose of loading, weighing and transferring products by
and between motor and rail modes of transportation and for the maintenance
and repair of railroad car loading and unloading ramps.
3 of 3
SCHEDULE 1.02A
PERSONAL PROPERTY SOLD TO BUYER
SCHEDULE 1.02B
PERSONAL PROPERTY ASSOCIATED WITH
THAT PORTION OF QUANTUM'S PLASTICS RECYCLING BUSINESS
SOLD TO BUYER
o Raw Material Supplier List (1994 & 1995)
o Parts Suppliers and Service Vendors List (current)
o Raw Materials Purchasing Records
o Plant Operating Procedures
o Quality Control Procedures
SCHEDULE 5.08
EXISTING OR POTENTIAL CLAIMS, LITIGATION, SUITS, CHARGES,
ACTIONS, GOVERNMENTAL INVESTIGATIONS OR OTHER PROCEEDINGS
1. General Safe & Lock - potential claim for equipment ordered by 3DM LLC and
delivered to the Premises
2. Vendor Unknown - potential claim for office furniture ordered by 3DM LLC
and delivered to the Premises
3. Vendor Unknown - potential claim for granulators ordered by 3DM LLC and
delivered to the Premises
4. Newark Business Equipment - potential claim for fax machine and copier
ordered by 3DM LLC and delivered to the Premises
5. Vendor Unknown - potential claim for telephone system ordered by 3DM LLC
and installed on the Premises
6. Vendor Unknown - potential claims for process equipment improvements
ordered by 3DM LLC and partial completed
7. Xxxx Xxxxxx - potential materialman's lien for materials ordered by 3DM LLC
and delivered to and installed on the Premises
8. Unknown Individuals - potential claim for personal property left upon the
Premises
9. Ohio Power Co. - potential claims for utility service ordered by 3DM LLC
10. Producers Gas Sales - potential claims for utility service ordered by 3DM
LLC
11. City of Heath, OH - potential claims for water and sewerage services
ordered by 3DM LLC
12. Rumpke - potential claims for refuse disposal services ordered by 3DM LLC
13. United Telephone - potential claims for telephone service ordered by 3DM
LLC
14. ADT - potential claim for equipment and services ordered by 3DM LLC and
installed upon the Premises
SCHEDULE 5.08 (con't)
15. Litigation pending in the Court of Common Pleas for Xxxxxxxx County, Ohio
and styled QUANTUM CHEMICAL CORPORATION V. 3DM LLC, ET AL., case number
A-96-2928
EXHIBIT A
GENERAL WARRANTY DEED
KNOW ALL MEN BY THESE PRESENTS THAT, QUANTUM CHEMICAL CORPORATION, a Corporation
incorporated under the laws of the State of Virginia (the "Grantor"), for the
consideration of $10.00 and other valuable considerations, received to its full
satisfaction of FIX-CORP INTERNATIONAL, INC., a Corporation incorporated under
the laws of the State of Ohio (the "Grantee"), does GIVE, GRANT, BARGAIN, SELL
AND CONVEY unto the said Grantee, its successors and assigns, the following
described premises, situated in the City of Heath, County of Licking and State
of Ohio:
SITUATED IN THE STATE OF OHIO, COUNTY OF LICKING AND CITY OF
HEATH, AND BOUNDED AND DESCRIBED AS FOLLOWS:
BEING IN T-1, X-00 XX XXX XXXXXX XXXXXX MILITARY LANDS, AND IN
THE MID-OHIO INDUSTRIAL PARK, ADDITION NO. 3, AS RECORDED IN PLAT
BOOK 13, PAGE 51, IN THE LICKING COUNTY DEED RECORDS, AND BEING
MORE FULLY BOUNDED AND DESCRIBED AS FOLLOWS:
BEING ALL OF RESERVE "A", XXX 00 XXX XXX XXXXXXXXX XXXXXXX XX XXX
00;
BEGINNING IN THE WESTERLY RIGHT OF WAY LINE OF XXXXX PARKWAY,
SAID POINT BEING THE SOUTHEAST CORNER OF SAID LOT 41;
THENCE SOUTH 89 DEG. 25'37" WEST, ALONG THE SOUTH LINE OF LOT 41,
662.49 FEET TO THE SOUTHWEST CORNER OF LOT 41;
THENCE NORTH 0 DEG. 45'14" WEST, ALONG THE EASTERLY LINE OF THE
NEW YORK CENTRAL RAILWAY COMPANY, 243.50 FEET, TO A POINT;
THENCE SOUTH 89 DEG. 25'37" EAST, PASSING THROUGH LOT 41, A
DISTANCE OF 663.41 FEET TO A POINT;
THENCE SOUTH 0 DEG. 31'52" EAST, PASSING ALONG THE WESTERLY RIGHT
OF WAY LINE OF XXXXX PARKWAY, 243.50 FEET TO THE PLACE OF
BEGINNING;
THE ABOVE 10.00 ACRE SURVEY INCLUDES 0.79 ACRES IN RESERVE "A",
5.504 ACRES IN XXX 00 XXX 0.000 XXXXX XX XXX 00.
SUBJECT TO ALL LEGAL HIGHWAYS, ALL LIMITATIONS OF ACCESS TO
PUBLIC ROADS OR HIGHWAYS, LEASES AND RIGHTS OF WAY, ZONING
REGULATIONS, EASEMENTS OF RECORD AND RESTRICTIVE COVENANTS.
THE ABOVE DESCRIPTION WAS PREPARED AS THE RESULT OF A SURVEY BY
XXXXXXX X. XXXXXXXXX, REGISTERED SURVEYOR NO. 5242, DATED JULY 6,
1989.
BEING PART OF THE SAME REAL ESTATE CONVEYED BY XXXXXXX X. XXXXXX,
XX. AND XXXXXXXX X. XXXXXX, HIS WIFE, TO MID-OHIO DEVELOPMENT
CORPORATION BY DEED DATED DECEMBER 3, 1971, AND RECORDED IN
VOLUME 681, PAGE 608, DEED RECORDS, LICKING COUNTY, OHIO.
THIS PROPERTY IS SUBJECT TO THE RESTRICTIVE COVENANTS FOR
MID-OHIO INDUSTRIAL PARK ADDITION NO. 3, FILED FOR RECORD WITH
THE LICKING COUNTY RECORDER ON JULY 30, 1976, IN VOLUME 750,
PAGE 363, DEED RECORDS, LICKING COUNTY, OHIO.
Be the same more or less, but subject to all legal highways.
1 of 3
Exhibit A
To have and to hold the above granted and bargained premises,
with the appurtenances thereunto belonging, unto the said Grantee, its
successors and assigns forever.
The Grantor, does for itself and its successors and assigns, covenant with the
Grantee its successors and assigns, that at and until the ensealing of these
presents, it is well seized of the above described premises, as a good and
indefeasible estate in FEE SIMPLE and has good right to bargain and sell the
same in manner and form as above written, and that the same are free and
clear from all incumbrances whatsoever, except those existing restrictions,
conditions and easements of record and that it will Warrant and Defend said
premises, with the appurtenances thereunto belonging, to the said Grantee, its
successors and assigns, forever, against all lawful claims and demands
whatsoever.
Subject to a Purchase and Sale Agreement between Quantum Chemical Corporation
and Fix-Corp International, Inc. dated August 14, 1996 and an Environmental
Indemnification Agreement dated August 14, 1996 Grantee covenants and agrees
that it will not directly or indirectly attempt to compel Grantor, its parent,
affiliates, subsidiaries, successors or assigns to clean up or remove any
underground petroleum or other hazardous substance or pollutant or any
contamination of tile soil or groundwater and any effect related thereto, or
seek damages for same. This shall be a covenant running with the land, and
shall be binding on any successor to or assignee of Grantee or subsequent
owners.
IN WITNESS WHEREOF, said corporation sets its hand and corporate
seal, by___________________________, its _____________________ this ________ day
of ___________________, 1996.
Signed and acknowledged in presence of: QUANTUM CHEMICAL CORPORATION
-------------------------------------- By:-------------------------------
-------------------------------------- -------------------------------
TYPED NAME
-------------------------------
TITLE
2 of 3
EXHIBIT A
THE STATE OF OHIO )
) SS.
COUNTY OF XXXXXXXX )
Before me, a notary public, in and for said County, personally
appeared the above named by ___________________, its __________________, who
acknowledged that he did sign the foregoing instrument and that the same is
the free act and deed of said Corporation, and the free act and deed of him
personally as such officer.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official
seal, at Cincinnati, County of Xxxxxxxx, State of Ohio, this _____ day of
________________, A.D. 1996.
------------------------------
Notary Public
THIS INSTRUMENT PREPARED BY XXXXXXX X. XXXXX, ATTORNEY.
EXHIBIT B
GENERAL XXXX OF SALE
GENERAL XXXX OF SALE, dated ____________, 1996 from QUANTUM
CHEMICAL CORPORATION, a Virginia corporation ("Quantum"), to Fix-Corp
International, Inc., an Ohio corporation ("Buyer").
WITNESSETH:
WHEREAS, Quantum and Buyer are parties to a Purchase and Sale
Agreement dated August 14, 1996 (the "Agreement"), which provides, among
other things, for the sale by Quantum to Buyer of assets, machinery and
equipment, personal property and a portion of Quantum's post-consumer plastic
recycling business (as defined in the Agreement).
NOW, THEREFORE, for and in consideration of the premises and
other good and valuable consideration, the receipt and adequacy of which are
acknowledged by Quantum:
1. Quantum does hereby sell, transfer, assign, convey, set
over and deliver to Buyer all of Quantum's right, title and interest in and
to assets set forth in Schedules 1.02A and 1.02B of the Agreement.
2. Quantum hereby conveys to Buyer good and marketable title
to the assets being conveyed hereby, free and clear of all liens, security
interests or any other encumbrances of any kind whatsoever.
3. Quantum, for itself, its successors and assigns, hereby
covenants that, from time to time after the delivery of this instrument, at
Buyer's request and without further consideration, Quantum will do, execute,
acknowledge and deliver, or will cause to be done, executed, acknowledged and
delivered, all such further acts, conveyances, transfers, assignments, powers
of attorney and assurances as Buyer reasonably may require to more
effectively convey, transfer to and vest in Buyer, and to put Buyer in
possession of, any of the assets.
4. This instrument shall be binding upon Quantum and its
successors and assigns and shall inure to the benefit of Buyer and its
successors and assigns.
5. This instrument shall be governed by and construed in
accordance with the laws of the State of Ohio.
IN WITNESS WHEREOF, Quantum has caused this General Xxxx of
Sale to be duly executed as of the date first above written.
QUANTUM CHEMICAL CORPORATION
BY: -------------------------------------
NAME (PRINTED): -------------------------
TITLE: ----------------------------------
EXHIBIT C
ENVIRONMENTAL INDEMNIFICATION AGREEMENT
THIS AGREEMENT, made August 14, 1996 is among QUANTUM CHEMICAL
CORPORATION, a Virginia corporation ("Quantum"), and Fix-Corp International,
Inc., an Ohio corporation ("Buyer").
WHEREAS, simultaneously with the execution and delivery of this
Environmental Indemnification Agreement (this "Agreement"), Quantum and Buyer
are consummating the transactions contemplated by that certain Purchase and Sale
Agreement, dated August 14, 1996 (the "Purchase Agreement"); and
WHEREAS, in connection with the Purchase agreement, the
parties desire to set forth their understandings with respect to certain
environmental matters which, by the terms of the Purchase agreement, are
specifically excluded from the scope of that agreement.
NOW, THEREFORE, Quantum and Buyer agree as follows:
SECTION 1. DEFINITIONS:
(a) The terms defined in the Purchase Agreement and otherwise
not defined in this Agreement are being used as defined in the Purchase
agreement.
(b) "Environmental Claims" shall mean any claim or demand by any
governmental authority or any person for personal injury (including sickness,
disease or death), property damage or damage to the environment resulting from
the release of any chemical, material or emission into the environment at or in
the vicinity of the Plant.
(c) "Environmental Matter" means any pollution or disposal of
materials at or in the vicinity of the Plant in connection with the operation
of the Plant.
(d) "Exposed Person" shall mean (i) any employee or former
employee, (ii) any contractor or former contractor, or (iii) any employee of
any contractor or former contractor in each case of Quantum and Buyer who
works or has worked or performs or has performed work at the Plant.
(e) "Shared Environmental Claim" shall mean an Environmental
Claim arising out of any operations conducted, commitment made, product
manufactured or any action taken or omitted to be taken by Quantum or Buyer
in respect of the Assets (including but not limited to the business
operations, transactions or conduct of the business directly or indirectly
related thereto) during periods both prior to and after the Closing Date.
SECTION 2. INDEMNIFICATION AGAINST ENVIRONMENTAL CLAIMS.
(a) BY QUANTUM FOR PRE-CLOSING ACTIVITY. On and after the
Closing Date, Quantum shall fully and promptly pay, perform, discharge,
defend, indemnify and hold harmless Buyer, its parent and subsidiaries and
affiliates, and their respective directors, officers and employees from and
against any claim, demand, action or suit, loss, cost, damage, fine, penalty
or expense (including reasonable attorneys' fees) resulting from any
Environmental Claim arising out of any operations conducted, commitment made,
product manufactured or any action taken or omitted solely by Quantum with
respect to the Assets (including but not limited to the business operations,
transactions or conduct of the business directly or indirectly related
thereto) during periods prior to and including the Closing Date.
(b) BY BUYER FOR POST-CLOSING ACTIVITY. On and after the Closing Date,
Buyer shall fully and promptly pay, perform and discharge, defend, indemnify
and hold harmless Quantum its parent, subsidiaries and affiliates and their
respective directors, officers and employees from and against any claim,
demand, action or suit, loss, cost, damage, fine, penalty or expense
(including reasonable attorneys' fees) resulting from any Environmental Claim
arising out of any operations conducted, commitment made, product
manufactured or any action taken or omitted solely by Buyer with respect to
the Assets (including but not limited to business operations, transactions or
conduct of the business directly or indirectly related thereto) during
periods after the Closing Date other than any action taken by Buyer, in good
faith exercising reasonable care, following the Closing Date on behalf or at
the direction of Quantum pursuant to this Agreement.
(c) CERTAIN SHARED ENVIRONMENTAL CLAIMS OF EXPOSED PERSONS.
All liabilities or obligations of Quantum or Buyer arising out of any Shared
Environmental Claim for personal injury (including sickness, disease or
death) made by an Exposed Person (including workmen's compensation claims)
shall be apportioned between Buyer and quantum in the proportion that such
Exposed Person's length of service (x) prior to and including the Closing
Date, in the case of Quantum and (y) after the Closing Date, in the case of
Buyer, bears to such Exposed Person's total length of service both prior to
and after the Closing Date. For the purposes of this provision, with respect
to (A) any contractor or employee of any contractor, the term "length of
service" means the period or periods of time during which such person was
actually exposed to such chemical, material or emission, that is the basis of
the Shared Environmental Claim, while working at the Plant or the Facility,
irrespective of the period of time during which such person was otherwise
employed by such contractor, and (B) any employee of Quantum or Buyer, the
term "length of service" means that period or periods of time when such
employee was actually exposed to the chemical, material or emission while
working for Quantum or Buyer. The calculations required in this agreement
shall be rounded to the nearest month.
(d) ENVIRONMENTAL CLAIMS OTHER THAN OF EXPOSED PERSONS.
Except as otherwise provided in subsection (c) above, all liabilities or
obligations of Quantum or Buyer arising out of Environmental Claims not
solely attributable to either Buyer's or Quantum's operation of the Plant
shall be born as follows:
(i) Any such claim asserted prior to January 1, 2001 shall
be the sole responsibility of Quantum.
(ii) Any such claim asserted on or after January 1, 2001
will be the sole responsibility of the Buyer.
For the purposes of subparagraphs (i) and (ii) above, a claim shall be deemed to
have been asserted at such time as a summons and complaint (or their equivalent)
is served on either Buyer or Quantum.
(e) BUSINESS INTERRUPTION, CESSATION, SHUTDOWN. Any claim
for losses arising out of a business interruption, cessation or shutdown at
the Plant shall be included in subsection (a) of this Section 2 above only if
the business interruption, cessation or shutdown is directly caused by a
lawful governmental or judicial order to cease or reduce operations of the
Plant for reasons directly relating to an Environmental Matter which occurred
solely on or before the Closing Date. Except as expressly provided in this
subsection (e), Buyer shall not be entitled to any indemnification under this
Agreement for any losses arising out of any business interruption, cessation
or shutdown of the Plant.
Losses for the purpose of this subsection shall consist only of
Buyer's out-of-pocket expenses, which include only the following costs:
maintenance, insurance, labor, utilities and taxes. Buyer shall use its best
efforts to minimize such losses. Quantum shall not be responsible for loss of
profits, revenues, business advantage, or business opportunity or any
consequential loss or damage. The maximum amount for which Quantum shall be
liable under this subsection shall never exceed, in the aggregate, $250,000 for
all such business interruptions, cessations or shutdowns.
SECTION 3. INDEMNIFICATION PROCEDURES.
(a) NOTICE OF CLAIMS. Promptly following receipt by Buyer or
Quantum of any claim, determination, suit, action or proceeding which is
subject to the provisions of Section 2 (an "Action"), such party shall give
written notice of such action to the other party hereto, accompanied by
copies of any written documentation with respect thereto received by the
notifying party and stating the basis upon which indemnification is being
sought pursuant to this Agreement (whether pursuant to subsections (a), (b),
(c) or (d) of Section 2). Such notice shall constitute a claim for
indemnification under this Agreement (hereinafter referred to as "Claim").
(b) DEFENSE OF CLAIMS. (i) ONE PARTY SOLELY RESPONSIBLE.
With respect to Claims asserted under subsection (a), (b), (d)(i) or (d)(ii)
of Section 2 in respect of which Buyer or Quantum, as the case may be, is
solely responsible, the party required to provide indemnification under this
Agreement (the "Indemnifying Party") shall have the right, at its option, to
compromise or defend, at its own expense and with its own counsel, any such
Action. The other party (the "Indemnified Party") shall have the right, at
its option, to participate in the
settlement or defense of any such Action, with its own counsel and at its own
expense, but the Indemnifying Party shall have the right to control such
settlement or defense. Notwithstanding the foregoing, should any such action
have the potential for materially and adversely affecting the operations at
the Plant, Buyer shall have the right to jointly participate and approve the
settlement or defense thereof without waiving any rights to indemnification
under this Agreement. The parties agree to cooperate in any such settlement
or defense and to give each other full access to all information relevant to
any Claim. In the event that the Indemnifying Party fails to notify the
Indemnified Party of its intent to take any action within 15 days after
receipt of a Claim, the Indemnified Party (without waiving any rights to
indemnification under this Agreement) may defend such Action and may enter
into any good faith settlement of such Claim without the prior written
consent of the Indemnifying Party.
(ii) BOTH PARTIES RESPONSIBLE. With respect to Claims
asserted under subsection (c) of Section 2 in respect of which responsibility
is apportioned between Buyer and Quantum, Buyer and Quantum shall be
represented by joint counsel selected by the party who, as of the date the
Claim is made, would bear more than 50% of the liability therefore
(determined in accordance with the applicable apportionment provisions
contained in such subsections), which counsel shall be reasonably acceptable
to the other party. The fees and expenses of such counsel shall be shared by
Buyer and Quantum in the same proportion as their respective liability
(determined in accordance with the applicable apportionment provisions). The
parties agree to cooperate with each other in the defense and settlement of
such Action, to give each other full access to all information relevant
thereto, and, so long as the other party hereto complies with the terms of
this Agreement, not to file a cross-claim against the other. Either party
shall have the right, at its
option, to participate in the settlement or defense of such Action with its
own counsel, at its own expense, but joint counsel shall have the right to
control such settlement or defense.
In the event that either party receives a settlement offer
from, or desires to make a settlement offer to, the plaintiff(s) in any such
Action (as the case may be, a "Settlement Offer"), such party shall promptly
give written notice to the other party, describing in reasonable detail the
proposed terms of the Settlement Offer. The following provisions shall
govern with respect any such Settlement Offer:
(A) Each party shall have 15 days after receipt of a
Settlement Offer within which to notify the other party of its
intention to accept or reject the Settlement Offer.
(B) (i) Neither party may make or accept a Settlement
Offer unless the Settlement Offer is made (x) jointly available
to or on behalf of, both parties or (y) an identical Settlement
Offer is made to or on behalf of, each party; provided, however,
(ii) where a settlement offer originates with one Defendant,
that Defendant shall advise the other Defendant of its
intention to make an offer to the Plaintiff(s). If both
Defendants agree on an offer then such offer shall be
communicated to the Plaintiff(s). Where only one Defendant
wants to offer to settle, it may proceed individually to
settle, but must keep the other defendant advised of the
negotiations, and give the other Defendant the opportunity to
join in a settlement offer.
(C) In the event that any party unilaterally makes or
accepts a Settlement Offer in violation of subparagraph (B),
the provisions of Section 2 shall not apply to such Action and
the settling party shall be solely liable for the entire
amount of any judgment rendered
against the non-settling party and for all costs incurred by
the non-settling party in defending such Action.
(D) In the event that both parties settle the Action,
the settlement shall be apportioned between Buyer and Quantum
in accordance with the applicable provisions of Section 2.
(E) In the event that only one party settles the Action
(under circumstances not prohibited by subparagraph (B), such
party shall have no further liability under Section 2, and all
costs incurred by the non-settling party subsequent to such
settlement shall be born entirely by the non-settling party.
Notwithstanding such settlement, however, the settling party
will continue to cooperate with the non-settling party in the
defense of such action, at the non-settling party's expense,
and shall give the non-settling party full access to all
information relevant thereto.
(F) In the event that one party desires to settle the
action, but the Plaintiff will not settle with only one
Defendant, and the matter goes to judgment against both
Defendants, then the Defendant which refused to settle shall
be liable for the entire judgment in excess of the amount for
which the party desiring to settle could have settled the
claims against it.
SECTION 4. ADDITIONAL AGREEMENTS.
(a) COOPERATION. Buyer agrees to cooperate in good faith
with Quantum to provide Quantum and their representatives (including
employees and independent contractors) access during normal business hours to
such facilities, employees, records, documents, including copies
thereof, office space to the extent reasonably necessary to permit Quantum to
discharge, on a timely basis, their obligations under this Agreement or under
any consent decree entered into with the EPA. Except as otherwise provided
in this Agreement, Quantum will reimburse Buyer for its cost in providing
such utilities and services.
(b) FURTHER ASSURANCE. Quantum agree to cooperate with Buyer,
in discharging their obligations under this Agreement, and not to
unreasonably interfere with the operation of the Plant in doing so and to use
all best efforts to insure that discharging Quantum's obligations does not
materially interfere with the operation of the Plant.
(c) COSTS. Except as otherwise provided, the costs of
testing, assessment and remediations shall be paid by Quantum.
(d) SCOPE OF UNDERTAKINGS. Except as otherwise provided in
this Agreement, the obligation of Quantum to perform assessment or remedial
actions contemplated hereby shall be conducted as Quantum deems in good faith
to be necessary. Quantum shall, to the exclusion of Buyer, undertake all
contacts, discussions, negotiations, decisions and any other dealings of like
nature or kind relating to any of the environmental matters which are
Quantum's responsibility under this Agreement with any federal, state or
local governmental matters which are Quantum's responsibility under this
Agreement with any federal, state or local governmental or judicial authority
having jurisdiction with respect thereto. Notwithstanding the foregoing
should any such action have the potential for materially and adversely
affecting the operations of the Plant, Buyer shall have the right to jointly
participate in any such dealings.
(e) PURPOSES OF AGREEMENT. It is expressly understood and
agreed that Quantum's entering into this Agreement with Buyer for the purpose
of facilitating the Closing of
the transaction contemplated by the Purchase Agreement and that this
Agreement does not constitute any admission, express or implied, by Quantum
of any violation, liability or wrongdoing by Quantum. This Agreement shall
inure to the benefit of and be binding on Quantum and Buyer and their
respective successors and assigns, nothing in this agreement, express or
implied, being intended to confer upon any other person any rights or
remedies under this Agreement. In consideration of the undertaking of
Quantum contained in this agreement, Buyer agrees to use its reasonable
efforts not to disclose the terms and provisions of this Agreement to any
third party, except as is necessary to carry out the purposes of this
Agreement or pursuant to applicable legal requirements.
(f) COMPLIANCE WITH LAWS. The parties agree to comply, in
good faith, with all applicable laws relating to the subject matter of this
Agreement. Each party will obey the terms of any final judgment or decree of
any court of competent jurisdiction rendered against it or any final order of
the EPA or any governmental or judicial authority with jurisdiction with
respect to the subject matter of this Agreement (PROVIDED, HOWEVER, that no
such party shall be required to obey any judgment, decree or order being
protested or appealed, in good faith, by such party by appropriate
proceedings).
(g) GENERAL. This Agreement sets forth the entire
understanding of the parties with respect to the environmental matters and
supersedes all prior and contemporaneous agreements, arrangements and
understandings relating to the subject matter hereof, whether oral or written
and whether consistent or inconsistent. No representation, promise,
inducement or statement of intention has been made by the parties hereto
which is not embodied in this agreement, and no party shall be bound by or
liable for any alleged representation, promise,
inducement or statement of intention not so set forth. To the extent that
any provision of this Agreement is inconsistent with the provisions of the
Purchase Agreement, the provisions of this Agreement shall govern. This
Agreement may be amended or modified only by a written instrument executed by
Buyer and Quantum or by their successors and assigns. All notices, requests,
demands and other communications under this Agreement shall be in writing and
shall be deemed to have been duly given if given in manner provided in the
Purchase Agreement. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Ohio, without giving
effect to the conflict of law principles of the State of Ohio.
SECTION 5. COVENANT-NOT-TO-XXX.
Buyer covenants and agrees that it will not directly or
indirectly, attempt to compel Quantum, its parents, affiliates, successors or
assigns to clean up or remove any underground petroleum or other hazardous
substance or pollutant or any contamination of the soil or groundwater and
any effect related thereto, or seek damages therefor, and Buyer further
agrees that the foregoing covenant-not-to-xxx will be inserted in the deeds
of conveyance for the Plant site, shall be a covenant running with the land,
and shall be binding on any successor to or assignee of Buyer or subsequent
owners; PROVIDED, HOWEVER, that this covenant is conditioned on Quantum's
compliance with the terms of this Agreement.
SECTION 6. TERM OF AGREEMENT.
The liabilities and obligations contained in this Agreement
shall survive the Closing and shall be effective and enforceable until the
expiration of any liability or obligation provided in this
agreement, by discharge, performance or otherwise; PROVIDED, HOWEVER, that
nothing in this agreement shall constitute any waiver by any party of any
defense based on laches or any similar legal or equitable grounds for
estoppel relating to the failure of a party to have asserted its rights on a
timely basis.
IN WITNESS WHEREOF, the parties have caused their authorized
representatives to execute this Agreement effective this 14th day of August,
1996.
QUANTUM CHEMICAL CORPORATION FIX-CORP INTERNATIONAL, INC.
By: By:
-------------------------- ----------------------------
Title: Title:
----------------------- -------------------------
ATTEST: ATTEST:
---------------------- ------------------------
By: By:
-------------------------- ----------------------------
EXHIBIT D
EASEMENT
KNOW ALL MEN BY THESE PRESENTS, That FIX-CORP INTERNATIONAL,
INC., an Ohio corporation, ("Grantor") for and in consideration of the sum of
One Dollar ($1.00) and for other good and valuable consideration paid by
QUANTUM CHEMICAL CORPORATION, a Virginia corporation, ("Grantee") the receipt
of which is acknowledged, do by this instrument remise, release, grant and
convey to Grantee, its successors and assigns forever, an easement in and to
a certain plot of land 145 feet wide by 465.30 feet on the longest side, as
shown by the attached plat and described as follows:
Situated in the State of Ohio, County of Licking, City of
Heath, in part of Reserve "A" and in part of Lot No. 40 in
Mid-Ohio Industrial Park, Addition No. 3, as shown of record
in Plat Book 13, Pages 51 and 52, said Reserve "A" and Lot
No. 40 having been conveyed to Quantum Chemical Corporation
by deed of record in Official Record 314, Page 867, all
references to Recorder's Office, Licking County, Ohio, said
easement bounded and described as follows;
Beginning at a point in the curved westerly right-of-way of
Xxxxx Parkway (50-feet wide), at the northeast corner of Lot
No. 39 and at the southeast corner of Reserve "A" in said
Mid-Ohio Industrial Park, Addition No. 3;
thence S 89DEG. 25' 27" W along a portion of the south line
of said Reserve "A" and along a portion of the north line of
said Xxx Xx. 00 a distance of 465.30 feet to a point;
thence N 0DEG. 31' 52" W crossing said Reserve "A" and
crossing a portion of said Xxx Xx. 00 a distance of 145.00
feet to a point;
thence N 89DEG. 25' 37" E parallel with and 145.00 feet
northerly by perpendicular measurement from the south line of
said Reserve "A" and crossing a portion of said Xxx Xx. 00 a
distance of 433.09 feet to a point in the curved westerly
right-of-way of Xxxxx Parkway and in the curved easterly line
of said Lot No. 40;
thence southerly along a portion of the curved westerly line
of Xxxxx Parkway, along a portion of the curved easterly line
of said Xxx Xx. 00 and along the curved easterly line of said
Reserve "A" and with a curve to the left, data of which is:
radius = 625.00 feet and sub-delta = 13DEG. 38' 48" a
sub-chord distance of 148.51 feet bearing S 13DEG. 03' 23" E
to the place of beginning;
containing 64,695 square feet (= 1.485 acres) of land more or
less.
It is the intention of the Grantor to grant this easement in the plot of land
along the line described giving Grantee the right and privilege of ingress and
egress to and use of the plot of land for the purpose of the loading, unloading,
weighing and transferring products by and between motor and rail modes of
transportation.
It is further understood in addition to the easement conveyed by this
instrument, Grantee shall have the right to go in and upon the premises of
the Grantor along the sides of the easement as may be necessary for the
loading, unloading, weighting, transfer of products by and between motor and
rail modes of transportation and the maintenance and repair of the railroad
car loading and unloading ramps.
Grantor has the full power to convey this easement, and warrants and will
defend the same against all claims by any persons.
IN WITNESS WHEREOF, the Grantor sets its hand and corporate seal
by____________________________, its ____________________________ and by
____________________________, its ____________________________ this 14th day of
August, 1996.
FIX-CORP INTERNATIONAL, INC.
By:
------------------------------------
By:
------------------------------------
Signed and acknowledged in the presence of:
-------------------------------------------
-------------------------------------------
STATE OF OHIO )
) SS:
COUNTY OF XXXXXXXX )
BEFORE ME, a Notary Public in and for the County, personally
appeared the above-named FIX-CORP INTERNATIONAL, INC. by
_____________________, its ___________________ and _____________________, its
_______________, who acknowledge that they did sign the foregoing instrument
and that the same is the free act and deed of said company and the free act
and deed of each of them personally and as such officers.
IN TESTIMONY WHEREOF I have set my hand and official seal at
Cincinnati, Ohio, this 14th day of August, 1996.
--------------------------------------
Notary Public
THIS DOCUMENT WAS PREPARED BY XXXXXXX X. XXXXX, ATTORNEY.
EXHIBIT E
TRACK LEASE AGREEMENT
THIS AGREEMENT, made as of August 14th, 1996 by and between Quantum Chemical
Corporation, a Virginia corporation, with its office and principal place of
business at 00000 Xxxxxxxxx Xxxxx, Xxxxxxxxxx, XX 00000 ("Landlord"), and
Fix-Corp International, Inc. an Ohio corporation, with a place of business at
00000 Xxxxx Xxxx, Xxxxx 000, Xxxxxxxxx, XX 00000 ("Tenant"):
WITNESSETH:
1. LEASE: Landlord leases to Tenant and Tenant hires from Landlord
for the term and according to the covenants and conditions
contained in this Lease certain land at 0000 Xxxxx Xxxxxxx,
Xxxxx, XX, consisting of a railroad siding of Two Hundred
linear feet (200') of track including all land under said
tracks, as described and as outlined in red in the attached
Exhibit A, which is made a part of this Agreement,
("Premises"), for the sole purpose of the storage of railcars
owned, leased or consigned to Tenant containing plastics,
other than liquid, and for no other purpose whatsoever.
Landlord specifically reserves the right, at any time during
this Lease, to substitute other track of the same length or
aggregate length. Tenant shall have the right of ingress and
egress to the Premises over the Landlord's property which lies
between the Premises and the Tenant's property.
2. TERM: The tenancy of this Lease shall be for a period of ten
(10) years beginning August 14, 1996 and ending August 14,
2006, with an option for an additional period of ten (10)
years beginning August 14, 2006 and ending August 14, 2016.
The term of this Lease is subject to termination at any time
by Tenant upon 90 days advance written notice to Landlord.
3. RENT: Tenant shall pay to Landlord or its
agent an annual rent in advance in the amount of One Thousand
Dollars ($1,000.00) each year or part thereof this Lease
continues in effect subject to annual adjustment not to
exceed the regional cost-of-living index for the preceding
twelve month period. Rent payments, unless Tenant is
otherwise notified in writing, shall be delivered to:
Quantum Chemical Corporation
00000 Xxxxxxxxx Xxxxx
XXX 00
Xxxxxxxxxx, XX 00000
Attn: Logistics Contracts Administrator
FAX: (000) 000-0000
4. UTILITIES: Tenant shall pay the cost of
utilities consumed by it on the Premises, including but not
limited to gas, electricity, water, sewer, power, and
telephone service. Any utility accounts shall be maintained
in Tenant's own name.
5. RISK OF LOSS: Notwithstanding any other term
or provision herein, Tenant shall bear all risk of injury or
loss to any person or property upon the Premises, except as
may be the result of any the intentional or willful act or
omission by or the gross negligence of Landlord.
6. INDEMNIFICATION OF LANDLORD: Tenant agrees to
pay, and to protect, indemnify, defend and hold harmless
Landlord from and against all liability, damages, costs and
expenses from causes of action, suits, claims, demands and
judgments of any nature whatever arising out of or in any way
connected with Tenant's occupancy of the Premises. Tenant
expressly acknowledges that it agrees to indemnify Landlord
for its own negligence, except to the extent that the causes
of action, suits, claims, demands and judgments of any nature
are the result of Landlord's gross or sole negligence.
7. USE: The Premises shall be used and occupied
by Tenant as a spur line for the spotting, loading and
off-loading of rail cars. Tenant shall be responsible to
obtain any Certificate of Occupancy or any other license or
permit as may be required by law.
8. CONDITION AND MAINTENANCE OF PREMISES: Tenant
accepts the Premises in their "as is" condition. Landlord
shall be responsible performing routine maintenance and
repair to keep the premises in a well maintained safe, clean
and sightly condition. Tenant agrees to reimburse Landlord
for Twenty-five percent (25%) of the actual cost of
maintenance and repair for the benefit of the entire spur
track and One Hundred Percent (100%) of the actual costs of
maintenance and repair for the sole benefit of the Tenant or
the Premises. Tenant shall not use, store, generate, treat
or dispose of any hazardous substance on the Premises without
the prior written consent of the Landlord. Such consent
shall not be unreasonably withheld.
8.01. In the event that any hazardous
substance is discovered to have been released upon or from
the Premises during the term of this Lease and such release
is due to any act or omission of Tenant, Landlord shall, at
its sole discretion, take all steps necessary to remove and
properly dispose of such hazardous substance and clean-up or
repair any contamination or damage resulting therefrom, in
full compliance with all applicable laws and regulations.
The actual costs of such removal, disposal, clean-up or
repair shall be for the account of Tenant and Tenant shall
reimburse Landlord for these costs within thirty days after
demand is made by the Landlord. Tenant agrees to defend,
indemnify and hold Landlord harmless from and against any
liabilities, including judgments, court costs, and reasonable
attorney fees claimed or asserted against or sustained by
Landlord resulting from Tenant's failure to fully comply with
the provisions of this Section.
9. ALTERATIONS AND IMPROVEMENTS: Tenant may with
Landlord's written consent make improvements to the Premises
at its sole cost and expense as may be required by Tenant's
business. Such improvements and installations shall become
the property of Landlord to the extent affixed to the
Premises at any time during the term of Tenant's occupancy
under this Lease. Any damage caused by removal of any item
retained by Tenant shall be repaired by Tenant. Tenant
agrees that any and all alterations or additions shall be
made in compliance with the building codes and ordinances,
laws and regulations applicable to the Premises including,
but not limited to, the rules and regulations of the American
Association of Railroads ("AAR") and the railroad providing
rail transportation and switching service to the spur track.
Should a building or other permit be required by Tenant to
accomplish any improvement, Landlord agrees to execute all
documents required to obtain such permit if Landlord has
consent to the improvements.
10. ASSIGNMENT AND SUBLETTING: Tenant may not sublet the Premises or
assign this Lease.
11. TAXES AND ASSESSMENT: During the term of this
Lease, Tenant shall pay on or prior to the due date all City,
County, State and Federal taxes or assessments as may accrue
based on Tenant's activities or improvements made by Tenant,
if any, and penalties imposed, assessed or levied upon the
same. Landlord will provide Tenant with timely written notice
of the above-referenced taxes so as to enable Tenant to pay
same when due. Landlord shall otherwise pay general real
estate taxes as levied upon the Premises.
12. DEFAULT BY TENANT: If Tenant defaults in any of the covenants or
agreements on its part to be performed under this Lease, and
if Tenant fails to cure any such default within ten (10) days
after receipt of written notice from Landlord or after the
expiration of a reasonable time from receipt of such notice
if such default could not be cured within ten (10) days by
Tenant's diligent efforts, then Landlord may at its option at
any time afterwards declare this Lease and all rights under
it immediately terminated, re-enter and take possession of
the Premises pursuant to a applicable provision of law, and
remove all persons and all Tenant's property from the
Premises.
13. HOLDING OVER: Unless otherwise agreed in
writing, any holding over by Tenant after expiration or
termination of the term of this Lease shall be construed as a
default of this Lease and rents shall be assessed at the rate
of Fifty Dollars ($50.00) per day or portion of a day.
14. SURRENDER: At the expiration or termination
of this Lease, Tenant agrees to quit and surrender possession
of the Premises to Landlord in its original condition,
reasonable wear and tear expected, with all of Tenant's
property removed, except as may be provided in Article 9,
ALTERATIONS AND IMPROVEMENTS.
15. RIGHTS OF PARTIES: Either Landlord or Tenant
may from time to time at its option exercise all rights and
remedies which any may have at law or in equity and nothing
in this Lease shall be construed as in any way abridging or
waiving any such rights or remedies. Any consent, waiver,
compromise or indulgence by one party of or under any of the
provisions of this Lease, or as to any breach or default
under this Lease committed by any other
party, shall not constitute or be construed as a waiver of
the that party's right to enforce strict interpretations and
performance of the conditions and terms of this Lease at any
other times.
16. NOTICES: Any written notice required or given
under this Lease to Landlord shall be given to Landlord at
the above address in Article 3 and any notice given to Tenant
at the above address, or any other address as the parties may
designate from time to time.
17. RIGHT OF ENTRY: Landlord may enter the
Premises for the purpose of making inspection, in connection
with any portion of the Premises during regular business
hours, or at any time in the event of emergency.
18. QUIET ENJOYMENT: Subject to the terms of this
Lease, Landlord covenants and agrees that Tenant, so long as
it shall not be in default under this Lease, shall peacefully
and quietly hold, occupy and enjoy the Premises during this
Lease.
19. BINDING FUTURE PARTIES: Each and all of the
terms and agreements contained in this Lease shall be binding
upon and inure to the benefit of the Landlord and the Tenant,
their successors and assigns.
20. PARAGRAPH HEADINGS: Paragraph headings
contained in this Lease shall in no way limit or restrict the
interpretation to be placed upon any word or phrase following
such heading.
21. NO ORAL MODIFICATION: This instrument
contains the entire agreement made between the parties and
may not be modified orally or in any manner other than by an
agreement in writing signed by the Landlord and the Tenant or
their respective successor in interest.
IN WITNESS WHEREOF, the Landlord and the Tenant have duly executed this Lease on
the day and year first above written. Individuals signing on behalf of a
principal warrant that they have the authority to bind their principals.
LANDLORD TENANT
QUANTUM CHEMICAL CORPORATION FIX-CORP INTERNATIONAL, INC.
By: By:
------------------------------ ------------------------------------
Title: Title:
--------------------------- ---------------------------------
Date: Date:
---------------------------- ----------------------------------
LINE 7 EQUIPMENT AND MACHINERY LIST
ASSET ID ASSET NAME MAKE MODEL NOTE
------------------------------------------------------------------------------------------------------------------------------------
CY1001 BALE CONVEYOR HUSTLER B2677 (SER.#) 72" W x 27' L 1/4" PLATE
STEEL BELT
B81002 BALE BREAKER HUSTLER B2679 (SER #) 72" W x 72' L w/ 30 HP - EDDY
CURRENT DRIVE
CY1003 VIBRATORY CONVEYOR & PUNCH-PLATE SCREEN HUSTLER B2680 (SER. #) 60" W x 23' X XXXXX-XXXXX
0" x 00 XXXX - XXXXXXXX BED
CY1004 FLAT-BELT, REFUSE CONVEYOR HUSTLER B2682 (SER. #) 12" W x 6' L FLAT BELT w/
CLEATS
CY1005 INCLINED, CLEATED, WASTE CONVEYOR HUSTLER B2684 (SER. #) 12" x 12' L FLAT BELT WITH
CLEATS
CY1006 MANUAL SORTING CONVEYOR HUSTLER B2686 (SER. #) 36" W x 30' L FLAT BELT
CY1007 INCLINED, CLEATED CONVEYOR HUSTLER B2689 (SER. #) 36" W x 20' l FLAT BELT
w/ MAG. HEAD PULLEY
CY1007A SLIDE CONVEYOR CUSTOM BRIDGES INCLINED CLEATED
CONVEYORS
CY1011 INCLINED, CLEATED CONVEYOR HUSTLER B2692 (SER. #) 36" W x 19'6" L FLAT BELT w/
CLEATS & MAG. HEAD PULLEY
GR1013 GRANULATOR CUMBERLAND 00X 000 XX XXXXX - 0 XXXXX
XXXXX - 0/0" BED-SCREEN
BL1014 PRIMARY ELUTRIATOR BLOWER STERLING SYSTEMS 7075FV (CCWUD) COMPONENT OF STERLING'S
3210EL SYSTEM
FS1015 ELUTRIATION VESSEL STERLING SYSTEMS EL32C IBID - SS - 7" OD INLET ON
146" STAND
BL1016 SECONDARY ELUTRIATOR BLOWER STERLING SYSTEMS 1115 FV (CCWUD) IBID - PROVIDES FLUIDIZATION
IN ELUTRIATOR - DISCHARGES
TO CYCLONE
FS1017 AIR CYCLONE STERLING SYSTEMS #13 IBID - SS #13 CYCLONE
w/ SIDE-MOUNTED FILTER HEAD
- 16" D x 144" LONG
VS1019 DIRTY-FLAKE PICK-UP BIN AND FEED AUGER CUSTOM SS - 6"D x 13' L INCLINED
XXXXX - XXXXXX VIBRATOR
CD 36-250
VS1021 COLD WASH TANK CUSTOM SS - 500 GAL. - 6-SECTION
XXX-XXXX
XXX0000X,X,X COLD WASH TANK MIXERS PHILADELPHIA MIXER PG 13 1/3 HP
MXP1021A,B,C,D COLD WASH TANK PULLERS CUSTOM PNEUMATIC MIXERS
FS1023 COLD-WASH, DEEP-BED FILTER CUSTOM SS - 270 GAL - INDEXING,
REUSABLE FILTER MEDIUM
P1024 COLD WASH FEED PUMP XXXXXX 1-1/4" x 1-1/2" x 7" SS
IMPELLER
FS1022 COLD WASH DEWATERING DRYER XXXXXX DAY D312 10 HP DRYER MOTOR - SS
FRAME AND ROTOR -
STELLITED ROTOR
VS1027 INTERMEDIATE FLAKE XXXXXX AND AUGER CUSTOM SS - 3.5 CU YD BIN - 6"D x
22'L INCLINED AUGER AND
LEVEL CONTROL
VS1030 HOT WASH TANK (1 OF 2) CUSTOM SS - 390 GAL - STEAM-
JACKETED - INSULATED
VS1031 HOT WASH TANK (2 OF 2) CUSTOM SS - 390 GAL - STEAM-
JACKETED - INSULATED
MXM1030 HOT WASH TANK MIXER (1 OF 2) PHILADELPHIA MIXER PG 13 5 HP - SS SHAFT & IMPELLERS
MXM1031 HOT WASH TANK MIXER (2 OF 2) PHILADELPHIA MIXER PG 13 5 HP - SS SHAFT & IMPELLERS
FS1032 HOT WASH DEWATERING DRYER XXXXXX DAY D312 SS FRAME AND ROTOR - 10 HP
MOTOR
FS1042 HOT WASH-WATER, DEEP-BED FILTER CUSTOM SS - 270 GAL. - INDEXING,
REUSABLE, FILTER MEDIUM
P1043 HOT WASH, DEEP-BED FILTER, SUMP PUMP XXXXXX XX HOUSING AND IMPELLER -
70 GPM - 5 HP
VS1044 HOT WASH-WATER HEATING RESERVOIR TANK CUSTOM 4' W x 6' H x 10' L - SS -
STEAM-HEATED - INSULATED -
1200 GAL.
P1044&47 HOT WATER PUMPS WEMCO FL 3" x 5-1/4" - SS HOUSINGS
AND IMPELLERS - 60 GMP -
5 HP DRIVE MOTORS
VS1033 HOT-WASH, CLEAN-FLAKE BIN CUSTOM SS - 1.5 CU YD
CY1034 HOT-WASH, CLEAN-FLAKE AUGER CUSTOM SS - 6"D x 8'L - 2500 LB/
HR - 1 HP MOTOR
LINE 7 EQUIPMENT AND MACHINERY LIST
ASSET ID ASSET NAME MAKE MODEL NOTE
------------------------------------------------------------------------------------------------------------------------------------
VS1035 RINSE/SEPARATION TANK CUSTOM SS - 225 GAL.
MXM1035A&B RINSE/SEPARATION TANK MIXERS PHILADELPHIA MIXER PG 13 SS SHAFTS AND IMPELLERS -
0 XX XXXXX XXXXXX
X0000&00 HYDROCYCLONE PUMPS WEMCO FL 3" x 5-1/5" w/ SS IMPELLERS
FS1036 HYDROCYCLONE SEPARATOR XXXXX ENGINEERING D10B-841
FS1037 HYDROCYCLONE SEPARATOR XXXXX ENGINEERING D10B-841
FS1040 VIBRATORY FILTER SWECO LS30S66
FS1041 PRIMARY CLEAN FLAKE SPIN DRYER XXXXXX DAY D512 SS FRAME AND ROTOR - 00 XX
XXXXX MOTOR
FS1048 FINAL CLEAN FLAKE SPIN DRYER - AIR ASSISTED XXXXXX DAY D532 SS FRAME AND ROTOR - 00 XX
XXXXX XXXXX
XX0000 EXHAUST BLOWER TWIN CITY FAN BC-SW SIZE 000 - 0000 XXX - 0 XX
XXXXX MOTOR
FS1049 DRYER BLOWER EXHAUST FILTERS CUSTOM 4 - 15" DIA. FILTER SOCKS
VS1050 INTERMEDIATE DRY FLAKE BIN w/ VIBRATOR & AIRVEYOR STERLING SYSTEMS SGB-03080 COMPONENT OF STERLING'S
3210EL SYSTEM - AL -
30 CU FT
BL1051 CLEAN FLAKE ELUTRIATOR BLOWER STERLING SYSTEMS 7075FV (CCWUD) IBID - 7.5 HP MOTOR
FS1052 CLEAN FLAKE ELUTRIATOR STERLING SYSTEMS EL32C IBID - SS - 7" INLET NOZZLE
BL1054 CYCLONE BLOWER STERLING SYSTEMS 1115FV IBID - 15 HP MOTOR
FS1055 ELUTRIATED-WASTE CYCLONE STERLING SYSTEMS #13 IBID - SS - #13 CYCLONE
w/SIDE MOUNTED FILTER HEAD
FS1056 CYCLONE EXHAUST FILTER STERLING SYSTEMS IBID - 6 - 16"d x 144" LONG
FILTER BAGS
VS1053 ELUTRIATED FLAKE RECEIVER L - 4 SYSTEMS AL - 4W x 4'L x 4' DEEP
(2.2 CU YD) - w/ LEVEL
CONTROL & VIBRATOR
FR1099 ELUTRIATED, CLEAN-FLAKE VACUUM TRANSFER SYSTEM L - R SYSTEMS VL-500 10 HP w/L-R 36FR003C FILTERS
VS1057 ELUTRIATED, CLEAN-FLAKE SURGE BIN L - R SYSTEMS 7' x 7' x 14'H (5000 LB) -
AL - HIGH LEVEL SENSOR -
SIGHT GLASS
FR1100 BLENDING-STATION, VACUUM TRANSFER SYSTEM L - R SYSTEMS VL-500 20 HP VACUUM BLOWER
w/SOUND ENCLOSURE
VS1077A WEIGH BLENDER - CLEAN FLAKE BIN L - R SYSTEMS WSB-2000 4 L-R ENGR SYSTEM, 36" x 36"
x 70" AL BIN w/ LEVEL SENSOR
& 2 CU FT RCVR
VS1077B,C,D WEIGH BLENDER - ADDITIVE BINS (3) L - R SYSTEMS STOCK 14" x 14" x 48"
SF1079A,B,C,D VIBRATORY FEEDERS SYNTRON FMC #8F-01 8 X 20 AND FMC
#F-10C VIBRATORY FEEDERS
VS1076 WEIGH XXXXXX L - R SYSTEMS WBS-2000 150 LB CAP-PROGRAMMABLE
WEIGH SCALE BLENDER
BD1060 CLEAN FLAKE & ADDITIVES RIBBON BLENDER L - R SYSTEMS CUSTOM 200 # CAP - AL MIXING
BARREL w/ 2 HP GEAR DRIVE
AND MIXING PADDLE
FR1101 EXTRUDER-FEED, VACUUM TRANSFER SYSTEM L - R SYSTEMS VL-500 20 HP VACUUM BLOWER
VS1063 EXTRUDER FEED XXXXXX XXXX CUSTOM 13 CU FT w/ L-R SYSTEMS
VPW-500 POWDER RECEIVER
EXM1060 EXTRUDER MOTOR XXXXXXX 508AT 400 HP DC w/ COOLING BLOWER
ATTACHMENT
GB1061 EXTRUDER GEAR-BOX XXXX 6H-6026 XX 00 6.1 GEAR RATIO
EX1060 EXTRUDER XXXX 6"D - 36 1L/D -
VACUUM-VENTED
SP1074 SCREEN CHANGER KREYENBORG SWE-200-88/RS 2 BOLT, AUTO-BACKFLUSHING
TYPE - 206 mm SCREENS
PZ1069 PELLETIZER XXXXXXXX WRP-12V WATER-RING TYPE - VARIABLE
SPEED - 2HP/3600 RPM, MAX
VS1072 PELLET WATER DEWATERING TROUGH XXXXXXXX PART OF WRP-12V SYSTEM
2
LINE 7 EQUIPMENT AND MACHINERY LIST
ASSET ID ASSET NAME MAKE MODEL NOTE
------------------------------------------------------------------------------------------------------------------------------------
FS1071 PELLET DRYER - AIR ASSISTED XXXXXXXX XX FRAME AND ROTOR -
2HP/1200 RPM - PART OF
WRP-12V SYSTEM
VS1085 PELLETIZER SURGE BIN L - R SYSTEMS 30"x30"x36" AL - 1/2" SCREEN - MAGNEETIC
SCREEN - LEVEL CONTROLLED
LINE 8 EQUIPMENT AND MACHINERY LIST
ASSET ID ASSET NAME MAKE MODEL NOTE
------------------------------------------------------------------------------------------------------------------------------------
CY2001 BALE CONVEYOR HUSTLER B2676 (SER.#) 72" W x 27' L 1/4" plate
steel belt
BB2002 BALE XXXXXX HUSTLER B2678 (SER. #) 72" W x 72' L
CY2003 VIBRATORY CONVEYOR & PUNCH PLATE SCREEN HUSTLER B2681 (SER. #) 60" W x 23' L BED - PUNCH-
PLATE: 2x10 ROWS
CY2004 RESIDUE SLIDE CONVEYOR HUSTLER B2683 (SER. #) 12" W x 6' L FLAT BELT
w/ CLEATS
CY2005 CLEATED, INCLINED, RESIDUE CONVEYOR HUSTLER B2685 (SER. #) 12" W x 12' L FLAT BELT
w/ CLEATS
CY2006 INCLINED, CLEATED, SORTING STATION FEED CONVEYOR HUSTLER B2687 (SER. #) 36" W x 20' L BELT w/ MAG.
HEAD PULLEY
CY2007 SORTING CONVEYOR HUSTLER B2688 (SER. #) 36" W x 15' L FLAT SLIDE
BELT - TWO THROW-OUT XXXXXX
CY2008 WASTE/BY-PRODUCT SLIDE CONVEYOR HUSTLER B2691 (SER #) 24" W x 20' L FLAT BELT
(REVERSIBLE)
CY2009 WASTE/BY-PRODUCT BALER FEED CONVEYOR VALLEY FORGE 700 18" W x 15' L FLAT BELT
w/ CLEATS
BA2011 WASTE/BY-PRODUCT BALER PIQUA 54-40 HD HYDRAULIC VERTICAL BALER
CY2012 SORTING-LINE TAKE-AWAY CONVEYOR (INCLINED, CLEATED) HUSTLER B2690 (SER. #) 36" W x 15' L FLAT BELT
w/ MAG. HEAD PULLEY
CY2012A SLIDE CONVEYOR CUSTOM BRIDGES INCLINED, CLEATED
CONVEYORS
CY2016 GRANULATOR FEED CONVEYOR (INCLINED, CLEATED) HUSTLER B2693 (SER. #) 36" W x 19'-6" L FLAT BELT
w/ CLEATS
GR2018 GRANULATOR CUMBERLAND 508 100 HP - 1/2" BED-SCREEN -
3-BLADE ROTOR -
SOUND-PROOFED
BL2019 DIRTY FLAKE ELUTRIATOR BLOWER STERLING SYSTEMS 7075FV (CCWUD) A COMPONENT OF STERLING'S
3210EL SYSTEM
FS2020 DIRTY FLAKE ELUTRIATION VESSEL STERLING SYSTEMS EL32C IBID - SS - 7" OD INLET,
146" STAND
BL2021 CYCLONE BLOWER STERLING SYSTEMS 1115FV (CCWUD) IBID - 15 HP BLOWER MOTOR
FS2022 AIR CYCLONE & BAG FILTER STERLING SYSTEMS #13 SS - #13 CYCLONE w/ SIDE
MOUNTED FILTER HEAD
VS2023 DIRTY FLAKE PICK-UP BIN AND FEED AUGER CUSTOM SS - 3.5 CU YD CAPACITY
w/ 6"D x 13' L INCLINED
AUGER
VS2027 HOT WATER WASH TANK (1 OF 2) CUSTOM SS - 390 GAL. - STEAM
JACKETED - INSULATED
VS2026 HOT WATER WASH TANK (2 OF 2) CUSTOM SS - 390 GAL. - STEAM
JACKETED - INSULATED
MXM2027&28 HOT WATER WASH TANK MIXERS PHILADELPHIA MIXER PG 13 SS SHAFT AND IMPELLERS -
5 HP DRIVE MOTORS
FS2029 HOT WASH DEWATERING DRYER XXXXXX DAY D312 SS ROTOR AND FRAME -
STELLITED ROTOR - 10 HP
DRIVE
FS2045 HOT WASH-WATER, DEEP-BED FILTER CUSTOM SS - 270 GAL. - INDEXING,
REUSABLE FILTER MEDIUM
P2046 HOT WASH, DEEP-BED FILTER, SUMP PUMP XXXXXX 70 GPM PUMP - 5 HP MOTOR -
SS HOUSING & IMPELLER
VS2047 HOT WASH WATER HEATING TANK CUSTOM SS - STEAM-HEATED -
INSULATED - 1200 GAL.
P2047&50 HOT WASH WATER PUMPS XXXXXX FL 3" x 5-1/4" 60 GPM - 5 HP
MOTOR - SS HOUSING &
IMPELLER
VS2030 HOT WASH CLEAN FLAKE BIN CUSTOM SS - 1.5 CU YD
CY2031 HOT WASH CLEAN FLAKE BIN AUGER CUSTOM SS - 6"D x 8' L - 2500
LB/HR
VS2032 PRIMARY CLEAN FLAKE RINSE TANK CUSTOM 3' W x 6' L x 3 H, SS -
260 GAL. - 3 COMP. XXXXXX-
XXXXXX XXXXXXXXX
XXX0000X,X,X PRIMARY RINSE TANK MIXERS PHILADELPHIA MIXER PG-13 SS SHAFT AND IMPELLER -
1/4 HP
P2038 RINSE TANK SUMP PUMP (COMPARTMENT C) WEMCO FL 190 GPM - 10 HP - SS HOUSING
AND IMPELLER
FS2037 HYDROCYCLONE SEPARATOR (COMPARTMENT C) XXXXX ENGINEERING D108-841
LINE 8 EQUIPMENT AND MACHINERY LIST
ASSET ID ASSET NAME MAKE MODEL NOTE
------------------------------------------------------------------------------------------------------------------------------------
FS2044 PRIMARY RINSE SYSTEM SPIN DRYER XXXXXX DAY D512 SS FRAME AND ROTOR - 10 HP
P2034&36 PRIMARY RINSE SYSTEM SUMP PUMPS (COMPARTMENTS A&B) WEMCO FL 190 GPM - 10 HP MOTOR - SS
HOUSING & IMPELLER
XX0000&00 XXXXXXXXXXXX SEPARATORS (COMPARTMENTS A&B) XXXXX ENGINEERING D108-841
FS2039 HEAVIES SPIN DRYER XXXXXX DAY D312 SS FRAME AND ROTOR - 10 HP
DRYER MOTOR
VS2040 SECONDARY, CLEAN-FLAKE RINSE TANK CUSTOM SS - 200 GAL.
MXM2040 SECONDARY RINSE TANK MIXER PHILADELPHIA MIXER PC-13 SS SHAFT AND IMPELLER -
1/4 HP
P2041 SECONDARY RINSE TANK SUMP PUMP WEMCO FL 190 G PM - 10 HP - SS
HOUSING AND IMPELLER
FS2042 HYDROCYCLONE SEPARATOR XXXXX ENGINEERING D108-841
FS2043 VIBRATORY FILTER SWECO LS30S66
FS2051 FIRST-STAGE DEWATERING DRYER XXXXXX DAY D312 SS FRAME AND ROTOR- 10 HP
MOTOR
FS2052 SECOND-STAGE DEWATERING DRYER XXXXXX DAY D312 SS FRAME AND ROTOR - 10 HP
MOTOR
FS2053 FINAL DEWATERING DRYER WITH AIR-ASSIST XXXXXX DAY D532 SS HOUSING AND ROTOR - 15 HP
MOTOR
BL2053 EXHAUST BLOWER TWIN CITY FAN BC-SW SIZE 165; 4800 CFM - 3HP
w/ 4-15" DIA. FILTER SOCKS
VS2057 INTERMEDIATE DRY FLAKE BIN w/ VIBRATOR & AIRVEYOR STERLING SYSTEMS SGB-03060 COMPONENT OF STERLING'S
3210EL SYSTEM - AL - 30
CU FT
BL2058 ELUTRIATOR XXXXX XXXXXXXX SYSTEMS 7075FV (CCWUD) IBID - 7.5 HP BLOWER MOTOR
FS2059 CLEAN FLAKE ELUTRIATION VESSEL STERLING SYSTEMS EL32C IBID - SS
BL2060 CYCLONE BLOWER STERLING SYSTEMS 1115FV (CCWUD) IBID - 15 HP BLOWER
FS2061 ELUTRIATED WASTE CYCLONE STERLING SYSTEMS #13 IBID - SS - #13 CYCLONE
w/ SIDE MOUNTED FILTER HEAD
FS2062 CYCLONE EXHAUST FILTER STERLING SYSTEMS IBID - 6 - 16" D x 114"
LONG FILTER BAGS
VS2063 ELUTRAITED FLAKE RECEIVER L - R SYSTEMS STOCK AL - 4W x 4'L x 4' DEEP -
WITH LEVEL CONTROLLERS
FR2104 ELUTRIATED, CLEAN-FLAKE VACUUM TRANSFER SYSTEM L - R SYSTEMS VL-500 15 HP VACUUM BLOWER w/ L-R
36FR003C RCVR
VS2065 ELUTRIATED, CLEAN-FLAKE SURGE BIN L - R SYSTEMS CUSTOM AL - 7' x 7' x 14' H
(5000 LB) - HIGH LEVEL
SENSOR - SIGHT GLASS
FR2105 BLENDING STATION VACUUM TRANSFER SYSTEM L - R SYSTEMS VL-500 20 HP VACUUM BLOWER
VS2065A WEIGH BLENDER - CLEAN FLAKE BIN L - R SYSTEMS CUSTOM 36 CU FT XX XXXXXX
w/ L-R VL-4500/02 VACUUM
RECVR
VS2065B,C,D WEIGH BLENDER - ADDITIVE BINS (3) L - R SYSTEMS STOCK 14" x 14" x 48" AL BIN w/
L-R VPW-400 POWDER RECEIVER
SF2067A,B,C,D VIBRATORY FEEDERS SYNTRON BF-01C FMC #8F-01 8 x 20 AND FMC
#F-10C VIBRATORY FEEDERS
VS2067 WEIGH XXXXXX L - R SYSTEMS WSB-2000 4 150 LB CAPACITY -
PROGRAMMABLE
BD2068 CLEAN FLAKE & ADDITIVES RIBBON BLENDER X - X XXXXXXX XXXXX 000 # XXX - XX MIXING BARREL
w/ 2 HP GEAR DRIVE & MIXING
PADDLE
FR2106 EXTRUDER FEED VACUUM TRANSFER SYSTEM L - R SYSTEMS VL-500 20 HP VACUUM BLOWER
VS2091 EXTRUDER FEED XXXXXX XXXX CUSTOM 13 CU FT CAP w/L-R VPW -
500 POWDER RECEIVER
EXM2068 EXTRUDER MOTOR XXXXXXX 508AT 400 HP DC w/ COOLING BLOWER
GB2069 EXTRUDER GEAR-BOX XXXX 6:H-6026 RH 20.6 1 GEAR RATIO
EX2068 EXTRUDER XXXX 6: - 36 1 LL/D - VACUUM
VENTED
2
LINE 8 EQUIPMENT AND MACHINERY LIST
ASSET ID ASSET NAME MAKE MODEL NOTE
------------------------------------------------------------------------------------------------------------------------------------
SP2082 SCREEN CHANGER KREYENBORG SWE-200-88/RS 2-BOLT - AUTO BACKFLUSHING
TYPE - 205 mm SCREENS
PZ2082 PELLETIZER XXXXXXXX WRP-12V WATER RING-TYPE - 2 HP,
VARIABLE SPEED MOTOR, 3600
RPM, MAX.
VS2080 PELLET WATER DEWATERING TROUGH XXXXXXXX COMPONENT OF WRP-12V PACKAGE
FS2079 PELLET DRYER - AIR ASSISTED XXXXXXXX IBID - SS FRAME AND ROTOR -
2 HP, 1200 RPM
VS2083 XXXXXXXXXX XXXXX XXX X - X XXXXXXX 00"x00"x00"X XX - 0/0" SCREEN - MAGNETIC
SCREEN - LEVEL CONTROLLED
FS2045A HOT FILTRATE SIEVE HYCOR HS36/A44 SS CONSTRUCTION
VENTED
3
PLANT SUPPORT EQUIPMENT AND MACHINERY LIST
ASSET ID ASSET NAME MAKE MODEL NOTE
------------------------------------------------------------------------------------------------------------------------------------
F-2 AUTO BACK-FLUSH FILTER YARDNEY MM3660-3A (3) 200 GPM MULTI-MEDIA
FILTERS w/AUTO CONTROLS
F-101 FILTER PRESS PAC PRESS MODEL P800E132A-10/15; 15
CU FT CAP
FLOWMETER XXXXXXXX MODEL FM 621-031-401-0
SIZE 3
P-103 PROCESS FEED PUMPS MCM 3 x 4 x 11
P-109 RECYCLE PUMP XXXXXX 10 ICU - 1 100GPM 5HP
P-105 FILTER PRESS FEED PUMP XXXXXX XXXX SA2-A SANDPIPER TYPE 5; 50 GPM,
AIR POWERED, DOUBLE
DIAGRAM PUMP
P-112 SKIM TRANSFER PUMP XXXXXX XXXX SA2-A SANDPIPER TYPE 5; 50 GPM,
AIR POWERED, DOUBLE DIAGRAM
PUMP
RE-USE WATER PUMP (2) XXXXXXX 3G5-4 250 GPM @ 00 XXX
X-000/0 XXXX XXXX XXXXXX XXXX X0X00-X SELF PRIMING CENTRIFUGAL
PUMP
T-111 SAMPLE TANK NORWESCO STOCK 550 GAL. 67" D x 42" H
POLETHYLENE
T-107 DAF CELL TANK PCE 120 DISSOLVED AIR FILTER
w/ SKIMMER AND MIXERS MFG
1/95
HILLSIDE SCREEN GALA 160 FRS
SCREW PRESS HYCOR SPR 260 HELIXPRESS UNIT, SPR 260,
HYCOR S/N H-0011096
T-101 EQUALIZATION TANK NORWESCO STOCK 5000 GAL. POLY TANK 102"
D x 152" H w/ MIXER
A-101 EQ TANK MIXER 3/4 HP GEAR DRIVE MIXER
FITS INTO EQ TANK
T-102 EQUALIZATION TANK NORWESCO STOCK 5000 GAL. POLY TANK 102" D
x 152" H
T-103 SKIM HOLDING TANK NORWESCO STOCK 1700 GAL. POLY TANK 87"D x
72" H
FACILITY BOILER CLEAVOR XXXXXX C8-700-1505 150 PSI PACKAGED BOILER
SYSTEM
FLOOR SCALE GSE 550 PORTABLE FLOOR SCALE
REFUSE COMPACTOR XxXXXXX 40067 HYDRAULIC COMPACTOR FOR A
42 CU FT REFUSE BOX
TRUCK SCALE FAIRBANKS 90-161-1 35 TON SCALE
PLANT AIR SUPPLY COMPRESSOR SULLAIR SRF (2) SRF 1/4000 AIR
COMPRESSORS FOR PLANT AIR
BALE WIRE DICER SWEED 510 CUTS BALE WIRES
FLOOR SWEEPER POWERBOSS TSS/80-HD DRIVING FLOOR MACHINE
FORK LIFTS (2) TCM FCG 18N7T
FORK LIFT TCM FG20N3T
FIRE WATER AND SPRINKLER PUMP PEERLESS 6AEF14G 13" D IMP 100 HP w/ XXXXXX
XXXXX CONTROL C 38204-4J
SYSTEM
COOLING TOWER MARLEY 28144
FR1103 SILO VACUUM TRANSFER SYSTEM L - R SYSTEMS VL-500 15 HP BLOWER MOTOR
w/ FILTERS
VS1066 15000 LB PELLET SILO PEABODY TECHTANK CUSTOM 12' D x 16' H AL CONST
RA1068 15000 LB SILO ROTARY AIR LOCK XXXXX & SONS HD SIZE 10" x 10" - 1 HP DRIVE
MOTOR
VS1069 50000 LB PELLET BLENDING SILO PEABODY TECHTANK CUSTOM 11' D x 29' H - AL CONST
w/ BLENDING TUBE & LEVEL
SENSOR
FR1102 VACUUM, PELLET RECIRCULATING L - R SYSTEMS VL-500 w/ AIR FILTERS
PLANT SUPPORT EQUIPMENT AND MACHINERY LIST
ASSET ID ASSET NAME MAKE MODEL NOTE
------------------------------------------------------------------------------------------------------------------------------------
RA1092 ROTARY AIR LOCK - 50000 XX XXXXX & SONS HD SIZE 10" x 00" - 0 XX XXXXX
XXXXX
XX0000 PACKAGING SCALE - 50000 LB SILO SYNTEST SP320 BLENDING SILO FITTED WITH
HI AND LO OUTPUT SLIDE
VALVES
BL1095 BLOWER - BULK LOADING SYSTEMS L - R SYSTEMS LSP400-30 30 HP MOTOR
FS1107 TRUCK LOADING CYCLONE L - R SYSTEMS 750 SS - 0 XX XX XXXXXXXX
XX0000 RAILCAR LOADING LINES (2) CUSTOM 4" LINES - PEENED
FR2108 SILO VACUUM TRANSFER SYSTEM L - R SYSTEMS VL-500 15 HP VACUUM BLOWER
VS2094 15000 LB PELLET SILO PEABODY TECH TANK CUSTOM AL CONST - 12' D 16' H
RA2109 15000 LB SILO ROTARY AIR LOCK XXXXX & SONS HD SIZE 10 x 10 1 HP DRIVE
MOTOR
VS2097 50000 LB PELLET BLENDING SILO PEABODY TECHTANK CUSTOM 11' D x 29' H - AL CONST -
w/ BLENDING TUBE & LEVEL
SENSOR
FR2107 VACUUM, PELLET RECIRCULATING L - R SYSTEMS VL-500 15 HP VACUUM BLOWER
RA2100 ROTARY AIR-LOCK - 50000 XX XXXXX & SONS HD 0 XX XXXXX XXXXX
XX0000 PACKAGING SCALE - 50000 LB SILO SYNTEST SP320 BLENDING SILO FITTED WITH
HI AND LO OUTPUT SLIDE
VALVES
2
LIST OF OBSOLETE EQUIPMENT AND MACHINERY
ASSET ID ASSET NAME MAKE MODEL NOTE
------------------------------------------------------------------------------------------------------------------------------------
FS2055 FLAKE DRYER - AIR ASSISTED XXXXXX DAY D532 SS FRAME & ROTOR - 15 HP
MOTOR - NEEDS NEW ROTOR
VS2054 METAL DETECTOR & DIVERTER ERIEZ EZ TEC III REJECTS AL FROM CLEAN PET
SERIES FLAKE
SP-1074 (OLD) SLDE-PLATE SCREEN-CHANGER XXXXXXXX XXX-00 0" XXXXXXX XXXX - XXXXXXXXX
UNIT - NEEDS NEW INLET
ADAPTOR
SP-2062 (OLD) SLDE-PLATE SCREEN-CHANGER XXXXXXXX XXX-00 0" XXXXXXX XXXX - XXXXXXXXX
UNIT - NEEDS NEW INLET
ADAPTOR
VS2112 PET FLAKE POLISHING TANK & AUGER CUSTOM SS - APPROX. 100 GAL. CAP.
SH1009 SHREDDER SHRED TECH ST-50 2 x 30 HP DRIVE MOTORS -
NEEDS NEW ROTORS &
PNEUMATIC XXXXXXX
SH2014 SHREDDER SHRED TECH ST.50 2 x 30 HP DRIVE MOTORS -
NEEDS NEW MOTORS &
PNEUMATIC XXXXXXX
DM1010 DRUM MAGNET DINGS MAGNETIC 12 x 36 FC DRUM SCAVENGES FERROMAGNETICS
FROM SHREDDER OUTPUT
DM2015 DRUM MAGNET DINGS MAGNETIC 12 x 36 FC DRUM SCAVENGES FERROMAGNETICS
FROM SHREDDER OUTPUT
Exhibit B to Exhibit 8
LOAN AND SECURITY AGREEMENT
This LOAN AND SECURITY AGREEMENT dated as of December 16, 1996, between
Fix-Corp International, Inc., an Ohio corporation, with an address of 00000
Xxxxx Xxxx, Xxxxx 000, Xxxxxxxxx, Xxxx 00000 (the "Borrower") and Xxxxxx
Xxxxxxxx Capital Corporation, a Delaware corporation, with an address of 00
Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 (the "Lender").
FOR VALUE RECEIVED, and in consideration of the granting by the Lender of
financial accommodations to Borrower, Borrower represents and agrees with the
Lender, as of the date hereof and as of the date of each credit and/or other
financial accommodation, as follows.
1. THE LOAN
1.1 LOAN. Subject to the terms and conditions of this Agreement, the Lender
hereby agrees to make a loan to the Borrower in the original principal amount of
$2,500,000.00 (the "Loan") to Borrower. The Loan shall be evidenced by that
certain Note, of even date herewith, (the "Note") by the Borrower in favor of
the lender in the original principal amount of $2,500,000.00, and is secured,
without limitation, by that certain Open-End Mortgage, dated of even date
herewith (the Mortgage"), by the Borrower in favor of the Lender in and to the
premises located at 0000 Xxxxx Xxxxxxx, Xxxxx, Xxxx 00000 (the "Real Property").
This Agreement, the Note, the Mortgage and any and all other documents,
amendments or renewals executed and delivered in connection with any of the
foregoing are collectively hereinafter referred to as the "Loan Documents".
2. GRANT OF SECURITY INTEREST
2.1 GRANT OF SECURITY INTEREST. In consideration of the Lender's extending
credit and other financial accommodations to the Borrower, the Borrower
hereby grants to the Lender a security interest in (including, without
limitation, a lien on and pledge of) all of the Borrowers Collateral (as
hereinafter defined). The security interest granted by this Agreement is
given to and shall be held by the Lender as security for the payment and
performance of all Obligations.
2.2 DEFINITIONS. The following definitions shall apply.
(a) "Code" shall mean the Massachusetts Uniform Commercial Code
(General Law, Chapter 106) as amended from time to time.
(b) "Collateral" shall mean all the Borrower's present and future
right, title and interest in and to any and all of the following property,
whether such property is now existing or hereafter created.
(i) All goods including without limitation all Inventory (as
hereinafter defined), farm products, Equipment (as
hereinafter defined), including without limitation
machinery, furniture, trade fixtures;
(ii) All accounts, accounts receivable, contract rights and
chattel paper, regardless of whether or not they constitute
proceeds of other Collateral;
(iii) All general intangibles, regardless of whether or not
they constitute proceeds of other Collateral, including,
without limitation, all of the Borrower's rights to tax
refunds and all the Borrowers rights (which the Lender may
exercise or not as it in its sole discretion may determine)
to acquire or obtain goods and/or services with respect to
the manufacture, processing, storage, sale, shipment,
delivery or installation of any of the Borrower's inventory
or other Collateral;
(iv) All products of and accessions to any of the Collateral;
(v) All liens, guaranties, securities, rights, remedies and
privileges pertaining to any of the Collateral, including
the right of stoppage in transit;
(vi) All obligations owing to the Borrower of every kind and
nature, and all choses in action;
(vii) All goodwill, trade secrets, computer programs,
customer lists, trade names, trademarks and patents;
(viii) All documents and instruments (whether negotiable or
nonnegotiable, and regardless of their being attached to
chattel paper);
(ix) All proceeds of Collateral of every kind and nature in
whatever form, including, without limitation, both cash and
noncash proceeds resulting or arising from the rendering of
services by the Borrower or the sale or other disposition by
the Borrower of the Inventory or other Collateral;
(x) All books and records relating to the conduct of the
Borrower's business including, without in any way limiting
the generality of the foregoing, those relating to its
accounts; and
(xi) All deposit accounts maintained by the Borrower with any
Lender, trust company, investment firm or fund, or any
similar institution or organization.
2
(c) "Contract Rights" or "contract rights" means rights of the
Borrower to payment under contracts not yet earned by performance and not
evidenced by instruments or chattel paper.
(d) "Debtors" shall mean the Borrower's customers who are indebted to
the Borrower.
(e) "Equipment" shall mean and include all the Borrower's machinery,
equipment, furniture, trade fixtures and motor vehicles and intending to
include all tangible personal property, or goods, utilized in the conduct
of the Borrower's business, but excluding therefrom inventory, as that term
is defined in the Code, and all replacements or substitutions therefor and
all accessions thereto.
(f) "Inventory" means all inventory of whatever name, nature, kind or
description, all goods held for sale or lease or to be furnished under
contracts of service, finished goods, work in process, raw materials,
materials used or consumed by Borrower, parts, supplies, all wrapping,
packaging, advertising labeling, and shipping materials, devices, names and
marks, all contract rights and documents relating to any of the foregoing,
whether any of the foregoing be now existing or hereafter arising, wherever
located, now owned or hereafter acquired by Borrower.
(g) "Obligation(s)" shall mean, without limitation, all loans,
advances, indebtedness, notes, liabilities and amounts, liquidated or
unliquidated, owing by the Borrower to the Lender at any time, of each and
every kind, nature and description, whether arising under this Agreement or
otherwise, and whether secured or unsecured, direct or indirect (that is,
whether the same are due directly by the Borrower to the Lender, or are due
indirectly by the Borrower to the lender as endorser, guarantor or other
surety, or as Borrower of obligations due third persons which have been
endorsed or assigned to the Lender, or otherwise), absolute or contingent,
due or to become due, now existing or hereafter contracted. Said term shall
also include all interest and other charges chargeable to the Borrower or
due from the Borrower to the Lender from time to time and all costs and
expenses referred to in this Agreement.
(h) "Person or "party" shall include individuals, firms, corporations
and all other entities.
All words and terms used in this Agreement other than those specifically
defined herein shall have the meanings accorded to them in the Code.
2.3 ORDINARY COURSE OF BUSINESS. The Lender hereby authorizes and permits the
Borrower to hold, process, sell, use or consume in the manufacture or processing
of finished goods, or otherwise dispose of the Inventory for fair consideration,
all in the ordinary course of the Borrower's business, excluding, without
limitation, sales to creditors or in bulk or sales or other dispositions
occurring under circumstances which would or could create any lien or interest
adverse to the Lender's security interest or other right hereunder in the
proceeds resulting
3
therefrom. The Lender also hereby authorizes and permits the Borrower to
receive from the Debtors all amounts due as proceeds of the Collateral at the
Borrower's own cost and expense, and also liability, if any, subject to the
direction and control of the Lender at all times, and the Lender may at any
time, without cause or notice, and whether or not a default has occurred or
demand has been made, terminate all or any part of the authority and
permission herein or elsewhere in this Agreement granted to the Borrower with
reference to the Collateral.
Until the Lender shall otherwise notify the Borrower, all proceeds of
and collections of Collateral shall be retained by the Borrower and used
solely for the ordinary and usual operation of the Borrower's business, from
and after notice by the Lender to the Borrower, all proceeds of and
collections of the Collateral shall be held in trust by the Borrower for the
Lender and shall not be commingled with the Borrowers other funds or
deposited in any Lender account of the Borrower; and the Borrower agrees to
deliver to the Lender on the dates of receipt thereof by the Borrower, duly
endorsed to the Lender or to bearer, or assigned to the Lender, as may be
appropriate, all proceeds of the Collateral in the identical form received by
the Borrower.
2.4 ALLOWANCES. The Borrower may grant such allowances or other adjustments
to Debtors (exclusive of extending the time for payment of any item which
shall not be done without first obtaining the Lender's written consent in
each instance) as the Borrower may reasonably deem to accord with sound
business practice, including, without limiting the generality of the
foregoing, accepting the return of all or any part of the Inventory (subject
to the provisions set forth in this Agreement with reference to returned
Inventory).
2.5 RECORDS. The Borrower shall hold its books and records relating to the
collateral segregated from all the Borrower's other books and records in a
manner satisfactory to the Lender; and shall deliver to the Lender from time
to time promptly at its request all invoices, original documents of title,
contracts, chattel paper, instruments and any other writings relating
thereto, and other evidence of performance of contracts, or evidence of
shipment or delivery of the merchandise or of the rendering of services; and
the Borrower will deliver to the Lender promptly at the Lender's request from
time to time additional copies of any or all such papers or writings, and
such other information with respect to any of the Collateral and such
schedules of Inventory, schedules of accounts and such other writings as the
Lender may in its sole discretion deem to be necessary or effectual to
evidence any loan hereunder or the Lender's security interest in the
Collateral.
2.6 LEGENDS. The Borrower shall promptly make, stamp or record such entries
or legends on the Borrower's books and records or on any of the Collateral as
the Lender shall request from time to time, to indicate and disclose that the
Lender has a security interest in such Collateral.
2.7 INSPECTION. The Lender, or its representative, at any time and from
time to time, shall have the right and the Borrower will permit it and them:
(a) to examine, check, make copies of or tracts from any of the
Borrower's books, records and files (including, without limitation, orders
and original correspondence);
4
(b) to inspect and examine the Collateral and to check and test the
same as to quality, quantity, value and condition; and the Borrower agrees
to reimburse the Lender for its reasonable costs and expenses in so doing;
and
(c) to verify the Collateral or any portion or portions thereof or
the Borrower's compliance with the provisions of this Agreement.
3. REPRESENTATIONS AND WARRANTIES
3.1 ORGANIZATION AND QUALIFICATION. The Borrower is a duly organized and
existing corporation under the laws of the State of its incorporation, as
indicated above, in good standing under the laws of said state, and is duly
qualified to do business under the laws of each state where the nature of the
business done or property owned requires such qualification.
3.2 SUBSIDIARIES. The Borrower has no subsidiaries other than those listed
on Schedule 3.2, if any, and the Borrower has never consolidated, merged or
acquired substantially all of the assets of any other entity or person other
than those listed on Schedule 3.2, if any.
3.3 CORPORATE RECORDS. The Borrower's Corporate Charter, Articles of
Organization or Incorporation and all amendments thereto have been duly filed
and are in proper order. All outstanding capital stock issued by the Borrower
was and is properly issued and all books and records of the Borrower,
including but not limited to its minute books, bylaws and books of account,
are accurate and up to date and will be so maintained.
3.4 TITLE TO PROPERTIES; ABSENCE OF LIENS. Borrower has good and clear
record and marketable title to all of its properties and assets, and all of
its properties and assets including the Collateral are free and clear of all
mortgages, liens, pledges, charges, encumbrances, setoffs, except (a) the
mortgages and security interests as set forth on Schedule 3.4a if any, and
(b) the leases of personal property as set forth on Schedule 3.4b, if any.
3.5 PLACES OF BUSINESS. Borrower's chief executive office is correctly
stated in the preamble to this Agreement, and Borrower shall, during the term
of this Agreement, keep the Lender currently and accurately informed in
writing of each of its other places of business, and shall not change the
location of such chief executive office or open or close, move or change any
existing or new place of business without giving the Lender at least thirty
(30) days prior written notice thereof.
3.6 VALID OBLIGATIONS. The execution, delivery and performance of the Loan
Documents have been duly authorized by all necessary corporate action and
each represents a legal, valid and binding obligation of Borrower and is
fully enforceable according to its terms, except as limited by laws relating
to the enforcement of creditors' rights.
5
3.7 CONFLICTS WITH OTHER AGREEMENTS. There is no provision in any
indenture, contract or agreement to which Borrower is a party which prohibits
the execution, delivery or performance of the Loan Documents.
3.8 GOVERNMENTAL APPROVALS. The execution, delivery and performance of the
Loan Documents does not require any approval of any governmental agency or
authority.
3.9 LITIGATION. There are no actions, suits or proceedings pending or to
the knowledge of Borrower threatened against Borrower which might materially
adversely affect the ability of Borrower to perform its obligations under the
Loan Documents.
3.10 FINANCIAL STATEMENTS. The Borrower has furnished to the Lender the
following Financial Statements (the "Financial Statements") balance sheet as
of September 30, 1996, and statement of profit and loss for the period ending
September 30, 1996. The balance sheet fairly presents the condition of the
Borrower at the date thereof and the statement of profit and loss fairly
presents the results of the operations of the Borrower for the period
indicated, all in conformity with generally accepted accounting principles,
consistently applied.
3.11 ACCOUNTS AND CONTRACT RIGHTS. All accounts arise out of legally
enforceable and existing contracts; and represent unconditional and
undisputed bonafide indebtedness by the Debtor for sales or leases of
Inventory shipped and delivered or services rendered by the Borrower to a
Debtor, and are not and will not be subject to any discount (except such cash
or trade discount as may be shown on any invoice, contract or other writing
delivered to the Lender). No contract right, account, general intangible or
chattel paper is, or will be represented by any note or other instrument, and
no contract right, account or general intangible is, or will be represented
by any conditional or installment sales obligation or other chattel paper,
except such instruments or chattel paper as have been immediately upon
receipt by the Borrower will be delivered to the Lender (duly endorsed or
assigned), such delivery, in the case of chattel paper, to include all
executed copies except those in the possession of the installment buyer and
any security for or guaranty of any of the Collateral shall be delivered to
the Lender immediately upon receipt thereof by the Borrower, with such
assignments and endorsements thereof as the Lender may request.
3.12 TITLE TO COLLATERAL. At the date hereof the Borrower is (and as to
Collateral that the Borrower may acquire after the date hereof, will be) the
lawful owner of the Collateral, and that the Collateral and each item thereof
is, will be and shall continue to be free of all restrictions, liens,
encumbrances or other rights, title or interests (other than the security
interest therein granted to the Lender hereby), credits, defenses, recoupments,
set-offs or counterclaims whatsoever; that the Borrower has and will have full
power and authority to grant to the Lender a security interest therein, and that
the Borrower has not transferred, assigned, sold, pledged, encumbered, subjected
to lien or granted any security interest in, and will not transfer, assign, sell
(except sales or other dispositions in the ordinary course of business in
respect to inventory as expressly permitted in this Agreement), pledge,
encumber, subject to lien or grant any security interest in any of the
Collateral (or any of the Borrower's right, title or interest therein), to any
person other than the Lender; that the Collateral is and will be valid and
genuine in all respects;
6
that all accounts arise out of legally enforceable and existing contracts in
accordance with their tenor; and that upon the Borrower's acquisition of any
interest in contract rights, it shall in writing immediately notify the
Lender thereof, specifically identifying the same as contract rights, and,
except for such contract rights, no part of the Collateral (or the validity
or enforceability by the Lender thereof) is or shall be contingent upon the
fulfillment of any agreement or condition whatsoever and that the Collateral,
other than Inventory and equipment, shall represent unconditional and
undisputed bona fide indebtedness by the Debtor for sales or leases of
Inventory shipped and delivered or services rendered by the Borrower to
Debtor, and is not and will not be subject to any discount (except such cash
or trade discount as may be shown on any invoice, contract or other writing
delivered to the Lender); and that the Borrower will warrant and defend the
Lender's right to and interest in the Collateral against all claims and
demands of all persons whatsoever.
3.13 LOCATION OF COLLATERAL. Except for sale, processing, use, consumption
or other disposition in the ordinary course of business, the Borrower will
keep all Inventory and Equipment only at locations specified in this
Agreement; that the Borrower shall, during the term of this Agreement, keep
the Lender currently and accurately informed in writing of each location
where the Borrower's records relating to its accounts and contract rights,
respectively, are kept, and shall not remove such records or any of them to
another state without giving the Lender at least thirty (30) days prior
written notice thereof.
3.14 THIRD PARTIES. The Lender shall not be deemed to have assumed any
liability or responsibility to the Borrower or any third person for the
correctness, validity or genuineness of any instruments or documents that may
be released or endorsed to the Borrower by the Lender (which shall
automatically be deemed to be without recourse to the Lender in any event) or
for the existence, character, quantity, quality, condition, value or delivery
of any goods purporting to be represented by any such documents; and that the
Lender, by accepting such security interest in the Collateral, or by
releasing any Collateral to the Borrower, shall not be deemed to have assumed
any obligation or liability to any supplier or Debtor or to any other third
party, and the Borrower agrees to indemnify and defend the Lender and hold it
harmless in respect to any claim or proceeding arising out of any matter
referred to in this paragraph.
3.15 PAYMENT OF ACCOUNTS. Each account or other item of Collateral, other
than Inventory and Equipment, will be paid in full on or before the date
shown as its due date in the schedule of Collateral, in the copy of the
invoice(s) relating to the account or other Collateral or in contracts
relating thereto, that upon any suspension of business, assignment or trust
mortgage for the benefit of creditors, dissolution, petition in receivership
or under any chapter of the Bankruptcy Code as amended from time to time by
or against any Debtor, any Debtor becoming insolvent or unable to pay its
debts as they mature or any other act of the same or different nature
amounting to a business failure, the Borrower will forthwith notify the
Lender thereof.
3.16 NOTIFICATION OF DAMAGE. The Borrower will immediately notify the Lender of
any loss or damage to, or material diminution in or any occurrence that would
adversely affect the value of the Inventory, the Equipment of other Collateral.
7
3.17 CHANGES. Since the date of the Financial Statements, there have been no
changes in the assets, liabilities, financial condition or business of the
Borrower, other than changes in the ordinary course of business, the effect
of which have, in the aggregate, been materially adverse.
3.18 TAXES. Borrower has filed all Federal, state and other tax returns
required to be filed (except for such returns for which current and valid
extensions have been filed), and all taxes, assessments and other
governmental charges due from the Borrower have been fully paid. Borrower
has established on its books reserves adequate for the payment of all
Federal, state and other tax liabilities (if any).
3.19 USE OF PROCEEDS. No portion of any Loan is to be used for the purpose
of purchasing or carrying any "margin security" or "margin stock" as such
terms are used in Regulations G and U of the Board of Governors of the
Federal Reserve System, 12 C.F.R. 207 and 221.
4. AFFIRMATIVE COVENANTS
4.1 PAYMENTS. Borrower will duly and punctually pay all interest and
principal becoming due the Lender and will duly and punctually perform all
things on its part to be done or performed under this Agreement.
4.2 FACILITY COLLATERAL MONITORING FEE. In addition to all amounts due and
payable respecting the Loan pursuant to the Note and the other Loan
Documents, Borrower hereby agrees to pay to Lender a "Facility/Collateral
Monitoring Fee" equal to $7,500 per month payable in advance, the first such
payment due on December ___, 1996 and each subsequent payment due on the
first business day of every calendar month commencing January 2, 1997 so long
as any amounts are outstanding respecting the Loan and the Note.
4.3 APPRAISAL OF REAL ESTATE. On or before January 1, 1997, the Lender
shall have received a satisfactory written appraisal by an appraiser
acceptable to Lender and Borrower for the Real Property, which appraisal
shall be paid for by Borrower and addressed to the Lender. Such appraisal
shall be acceptable to the Lender in its sole discretion and confirm that the
value of the Real Property must be at least $1,400,000 based upon an orderly
liquidation. In the event the value of the Real Property in such appraisal is
less than $1,400,000 on a quick sale basis, Borrower hereby agrees to (i)
provide additional collateral acceptable to Lender in Lender's sole
discretion to cover the difference between $1,400,000 and such appraised
value of the Real Property (the "Shortfall"); or (ii) to make an immediate
payment to Lender in the amount of the Shortfall to reduce the principal
balance of the Loan.
4.4 SUBORDINATION OF SECURITY INTEREST BY LENDER. Lender hereby agrees to
subordinate its security interest in the Collateral upon payment to Lender of
an amount equal to $1,500,000 (the "Collateral Prepayment") plus 60% of the
Exit Fee (as such term is defined in the Note) which would be due and payable
at the time the Collateral Prepayment is paid if all amounts outstanding
respecting the Note had been paid at such time. In the, event 60% of the
Exit Fee (the "Collateral Exit Fee Amount") is paid to Lender in accordance
with this paragraph the amount of the Exit Fee due at the time all amounts
outstanding respecting the Note are paid in full shall be reduced by the
Collateral Exit Fee Amount. The Lender shall subordinate its lien in the
Collateral only to the
8
extent of amounts actually paid to Lender and upon execution and delivery of
a Subordination and Intercreditor Agreement between Lender and such parties
funding the repayment of amounts paid to Lender containing terms reasonably
acceptable to Lender.
4.5 SUBORDINATION OF MORTGAGE BY LENDER. Lender hereby agrees to
subordinate its Mortgage in the Real Property upon payment to Lender of an
amount equal to $1,000,000 (the "Real Estate Prepayment") plus 40% of the
Exit Fee (as such term is defined in the Note) which would be due and payable
at the time the Real Estate Prepayment is paid if all amounts outstanding
respecting the Note had been paid at such time. In the event 40% of the Exit
Fee (the "Real Estate Exit Fee Amount') is paid to Lender in accordance with
this paragraph the amount of the Exit Fee due at the time all amounts
outstanding respecting the Note are paid in full shall be reduced by the Real
Estate Exit Fee Amount. The Lender shall subordinate its Mortgage only to
the extent of amounts actually paid to Lender and upon execution and delivery
of a Subordination and Intercreditor Agreement between Lender and such
parties funding the repayment of amounts paid to Lender containing terms
reasonably acceptable to Lender.
4.6 BOOKS AND RECORDS; INSPECTION. Borrower will at all times keep proper
books of account in which full, true and correct entries will be made of its
transactions in accordance with generally accepted accounting principles,
consistently applied and which are, in the opinion of a Certified Public
Accountant acceptable to Lender, adequate to determine fairly the financial
condition and the results of operations of Borrower. Borrower will at all
reasonable times make its books and records available in its offices for
inspection and examination by the Lender and the Lender's representatives and
will permit inspection of the Collateral and all of its properties by the
Lender and the Lender's representatives. Borrower will from time to time
furnish the Lender with such information and statements as the Lender may
request in its sole discretion with respect to the Obligations or the
Lender's security interest in the Collateral. Borrower shall, during the
term or this Agreement, keep the Lender currently and accurately informed in
writing of each location where the Borrower's records relating to its
accounts and contract rights are kept, and shall not remove such records to
another state without giving the Lender at least thirty (30) days prior
written notice thereof.
4.7 FINANCIAL STATEMENTS. Borrower will furnish to Lender:
(a) as soon as available to Borrower, but in any event within 15 days
after the close of each month, a full and complete signed copy of financial
statements, which shall include a balance sheet of the Borrower, as at the
end of such month, and statement of profit and loss of the Borrower
reflecting the results of its operations during such month and shall be
prepared by the Borrower and certified by Borrower's chief financial
officer as to correctness in accordance with generally accepted accounting
principles, consistently applied, subject to year-end adjustments;
(b) as soon as available to Borrower, but in any event within 30 days
after the close of each quarterly period of its fiscal year, a full and
complete signed copy of financial statements, prepared by certified public
accountants acceptable to Lender, which shall include a balance sheet of
the Borrower, as at the end of such quarter, and statement of
9
profit and loss of the Borrower reflecting the results of its operations
during such quarter, bearing the opinion of such certified public
accountants and prepared on a compiled basis in accordance with generally
accepted accounting principles, consistently applied, subject to year-end
adjustments;
(c) as soon as available to Borrower, but in any event within 90 days
after the close of each fiscal year, a full and complete signed copy of
financial statements, prepared by certified public accountants acceptable
to Lender, which shall include a balance sheet of the Borrower, as at the
end of such year, and statement of profit and loss of the Borrower
reflecting the results of its operations during such year, bearing the
opinion of such certified public accountants and prepared on an audited
basis in accordance with generally accepted accounting principles,
consistently applied together with any so-called management letter;
(d) on or before May 1 of each year or such other date approved by
the Lender, Borrower's filed federal and state tax returns for the prior
year;
(e) from time to time, such financial data and information about
Borrower as Lender may reasonably request; and
(f) any financial data and information about any guarantors of the
Obligations as Lender may reasonably request.
4.8 CONDUCT OF BUSINESS. The Borrower will maintain its corporate existence
in good standing and comply with all laws and regulations of the United
States and of any state or states thereof and of any political subdivision
thereof, and of any governmental authority which may be applicable to it or
to its business; provided that this covenant shall not apply to any tax,
assessment or charge which is being contested in good faith and with respect
to which reserves have been established and are being maintained.
4.9 NOTICE TO ACCOUNT DEBTORS. The Borrower agrees, at the request of the
Lender, to notify all or any of the Debtors in writing of the Lender's
security interest in the Collateral in whatever manner the Lender requests
and, if the Lender so requests, to permit the Lender to notify all or any of
the Debtors at the Borrower's expense.
4.10 TAXES. Borrower will promptly pay all real and personal property taxes,
assessments and charges and all franchise, income, unemployment, old age
benefits, withholding, sales and other taxes assessed against it or payable
by it before delinquent; provided that this covenant shall not apply to any
tax assessment or charge which is being contested in good faith and with
respect to which reserves have been established and are being maintained.
The Lender may, at its option, from time to time, discharge any taxes, liens
or encumbrances of any of the Collateral, and the Borrower will pay to the
Lender on demand or the Lender in its sole discretion may charge to the
Borrower all amounts so paid or incurred by it.
10
4.11 MAINTENANCE. Borrower will keep and maintain the Collateral and its
other properties, if any, in good repair, working order and condition. The
Borrower will immediately notify the Lender of any loss or damage to or any
occurrence which would adversely affect the value of any Collateral. The
Lender may, at its option, from time to time, take any other action that the
Lender may deem proper to repair, maintain or preserve any of the Collateral,
and the Borrower will pay to the Lender on demand or the Lender in its sole
discretion may charge to the Borrower all amounts so paid or incurred by it.
4.12 INSURANCE. Borrower will maintain in force casualty insurance on all
Collateral and any property of the Borrower, if any, against risks
customarily insured against by companies engaged in businesses similar to
that of the Borrower containing such terms and written by such companies as
may be satisfactory to the Lender, such insurance to be payable to the Lender
as its interest may appear in the event of loss; no loss shall be adjusted
thereunder without the Lender's approval; and all such policies shall provide
that they may not be canceled without first giving at least ten (10) days'
written notice of cancellation to the Lender. In the event that the Borrower
fails to provide evidence of such insurance, the Lender may, at is option,
secure such insurance and charge the cost thereof to the Borrower. At the
option of the Lender, all insurance proceeds received from any loss or damage
to any of the Collateral shall be applied either to the replacement or repair
thereof or as a payment on account of the Obligations. From and after the
occurrence of an Event of Default, the Lender is authorized to cancel any
insurance maintained hereunder and apply any returned or unearned premiums,
all of which are hereby assigned to the Lender, as a payment on account of
the Obligations.
4.13 NOTIFICATION OF DEFAULT. Within five (5) days of becoming aware of the
existence of any condition or event which constitutes an Event of Default, or
any condition or event which would upon notice or lapse of time, or both,
constitute an Event of Default, Borrower shall give Lender written notice
thereof specifying the nature and duration thereof and the action being or
proposed to be taken with respect thereto.
4.14 NOTIFICATION OF MATERIAL LITIGATION. Borrower will promptly notify the
Lender in writing of any litigation or of any investigative proceedings of a
governmental agency or authority commenced or threatened against it which
would or might be materially adverse to the financial condition of Borrower.
4.15 PENSION PLANS. With respect to any pension or benefit plan maintained
by Borrower, or to which Borrower contributes (Plan"), the benefits under
which are guarantied, in whole or in part, by the Pension Benefit Guaranty
Corporation created by the Employee Retirement Income Security Act of 1974,
P. L. 93-406, or any governmental authority succeeding to any or all of the
functions of the Pension Benefit Guaranty Corporation ("Pension Benefit
Guaranty Corporation"), Borrower will (a) fund each Plan as required by the
provisions of Section 412 of the Internal Revenue Code of 1986, as amended;
(b) cause each Plan to pay all benefits when due; (c) furnish Lender (i)
promptly with a copy of any notice of each Plan's termination sent to the
Pension Benefit Guaranty Corporation and (ii) no later than the date of
submission to the Department of Labor or to the Internal Revenue Service, as
the case may be, a copy of any request for waiver from the funding standards
or extension of the amortization periods required
11
by Section 412 of the Internal Revenue Code of 1954, as amended; and (d)
subscribe to any contingent liability insurance provided by the Pension
Benefit Guaranty Corporation to protect against employer liability upon
termination of a guarantied pension plan, if available to Borrower.
4.16 ENVIRONMENTAL. As of the date hereof neither the Borrower nor any of
Borrower's agents, employees or independent contractors (1) have caused or
are aware of a release or threat of release of Materials (as defined herein)
on any of the premises or personal property owned or controlled by Borrower,
or any abutting property, which could give rise to liability under any
Superfund and Hazardous Waste Laws (as defined herein) or any other federal,
state or local law, rule or regulation; (2) have arranged for the transport
of or transported any Materials in a manner as to violate, or result in
potential liabilities under, any Superfund and Hazardous Waste Laws; (3) have
received any notice, order or demand from the Environmental Protection Agency
or the Ohio Department of Environmental Protection under any Superfund and
Hazardous Waste Laws; (4) have incurred any liability under any Superfund and
Hazardous Waste Laws in connection with the mismanagement, improper disposal
or release of Materials; (5) are aware of any inspection or investigation of
any of the premises or personal property owned or controlled by Borrower or
abutting property by any federal, state or local agency for possible
violations of the Superfund and Hazardous Waste Laws.
To the best of Borrower's knowledge, no prior owner or tenant of any
premises or property presently controlled or owned by Borrower committed or
omitted any act which caused the release of Materials on such premises or
property which could give rise to a lien thereon by any federal, state or
local government. No notice or statement of claim or lien affecting any
property or premises owned or controlled by Borrower has been recorded or
filed in any public records by any federal, stale or local government for
costs, penalties, fines or other charges as to such property.
Borrower agrees to indemnify and hold Lender harmless from all
liability, loss, cost, damage and expense, including attorney fees and costs
of litigation, arising from any and all of its violations of the Superfund
and Hazardous Waste Laws including those arising from any lien on any
premises or property owned or controlled by Borrower by any federal, state
and local government arising from the presence of Materials. Borrower
further agrees to reimburse Lender upon demand for any costs incurred by
Lender in connection with the foregoing. Borrower agrees its obligations
hereunder shall be continuous and shall survive the repayment of all debts to
Lender including repayment of all Obligations.
The term "Materials" means any "oil," "hazardous material," "hazardous
wastes" or "hazardous substances" as defined under the Comprehensive
Environmental Response, Compensation, and Liability Act, 42 U.S.C. Section
9601 ET SEQ., as amended, the Resource Conservation and Recovery Act of 1976,
42 U.S.C. Section 6901 ET SEQ., as amended, and Ohio hazardous waste laws and
regulations, and the foregoing are collectively the "Superfund and Hazardous
Waste Laws."
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5. NEGATIVE COVENANTS
5.1 NET OPERATING INCOME. Borrower hereby agrees to pay to Lender, in
addition to all other amounts due respecting the Note, $100,000 of the
outstanding principal balance of the Note within 20 days of the start of any
calendar month following any period of two consecutive months in which
Borrower fails to maintain monthly net operating income before income taxes,
as defined in accordance with generally accepted accounting principles,
consistently applied. equal to at least the amount shown on Schedule 5.1 for
the calendar months indicated on Schedule 5.1.
5.2 LIMITATIONS ON INDEBTEDNESS. Borrower will not issue any evidence of
indebtedness or create, assume, guarantee, become contingently liable for, or
suffer to exist indebtedness in addition to indebtedness to the Lender,
except indebtedness or liabilities of Borrower, other than for money
borrowed, incurred or arising in the ordinary course of business.
5.3 SALE OF INTEREST. There shall not be any sale or transfer of ownership
of any interest in the Borrower without the Bank's prior written consent.
5.4 LOANS OR ADVANCES. Borrower will not make any loans or advances to any
individual, firm or corporation, including without limitation its officers
and employees; provided, however, that Borrower may make advances to its
employees, including its officers, with respect to expenses incurred or to be
incurred by such employees which expenses are reimbursable by Borrower; and
provided further, however, that Borrower may extend credit in the ordinary
course of business in accordance with customary trade practices.
5.5 DIVIDENDS AND DISTRIBUTIONS. Borrower will not, without prior written
permission of the Lender, pay any dividends on or make any distribution on
account of any class of Borrower's capital stock in cash or in property
(other than additional shares of such stock), or redeem, purchase or
otherwise acquire, directly or indirectly, any of such stock, except if
Borrower is a Subchapter S corporation, under the regulations of the Internal
Revenue Service of the United States, in which event, so long as Borrower is
not in default hereunder, Borrower may distribute to the stockholders of
Borrower such amounts as are necessary to pay the tax liability of such
stockholders due as a result of such stockholders interest in the Borrower.
5.6 INVESTMENTS. Without the prior written consent of Lender, which shall
not be unreasonably withheld, the Borrower will not (i) make investments in,
or advances to, any individual, partnership, corporation, limited liability
company, trust or other organization or person; or (ii) purchase or otherwise
invest in or hold securities, nonoperating real estate or other nonoperating
assets or purchase all or substantially all the assets of any entity.
5.7 MERGER. Borrower will not merge or consolidate or be merged or
consolidated with or into any other corporation.
SALE OF ASSETS. Borrower will not without Lender's prior written consent
sell, lease or otherwise dispose of any of its assets, except in the ordinary
and usual course of business and
13
except for the purpose of replacing machinery, equipment or other personal
property which, as a consequence of wear, duplication or obsolescence, is no
longer used or necessary in the Borrower's business, provided that fair
consideration is received therefor; provided, however, the Lender shall not
unreasonably withhold consent in the event Borrower proposes to transfer any
assets to a corporation (a "Subsidiary") for which one hundred percent of the
issued and outstanding capital stock is owned by Borrower, provided such
Subsidiary executes and delivers such guarantees, security agreements and
other agreements reasonably requested by Lender to perfect and preserve
Lender's rights under this Agreement and the other Loan Documents.
5.9 RESTRICTION ON LIENS. Borrower will not grant any security interest in,
or mortgage of, any of its properties or assets including the Collateral.
5.10 OTHER BUSINESS. Borrower will not engage in any business other than the
business in which it is currently engaged or a business reasonably allied
thereto.
6. DEFAULT
6.1 DEFAULT. "Event of Default" shall mean the occurrence of one or more of
any of the following events:
(a) Default of any liability, obligation or undertaking of the
Borrower to the Lender, hereunder or otherwise, including failure to pay in
full and when due any installment of principal or interest continuing for 5
business days with respect to any monetary obligation or continuing for 5
business days after the giving of notice by the Lender with respect to all
other obligations.
(b) Failure of the Borrower to maintain aggregate collateral security
value satisfactory to the Lender continuing for 5 business days after the
giving of notice by the Lender.
(c) Default of any material liability, obligation or undertaking of
the Borrower to any other party continuing for 5 business days after the
giving of notice by the Lender.
(d) If any statement, representation or warranty heretofore, now or
hereafter made in connection with this Agreement or in any supporting
financial statement of the Borrower shall be determined by Lender to have
been false in any material respect when made continuing for 5 business days
after the giving of notice by the Lender.
(e) The liquidation, termination or dissolution of, or the merger
consolidation of the Borrower, into another entity or the Borrower ceasing
to carry on actively its present business or the appointment of a receiver
for the Borrower.
(f) The liquidation, termination or dissolution of any guarantor of
the Obligations or if a corporation, the merger or consolidation of any
such guarantor into
14
another entity, or any guarantor of the Obligations ceasing to carry on
actively its present business, or the appointment of a receiver for any
guarantor of the Obligations or the death of any guarantor of the
Obligations or any partner or trustee of any guarantor of the Obligations.
(g) The institution by or against the Borrower or guarantor of the
Obligations of any proceedings under the Bankruptcy Code 11 U.S.C. Section
101 ET SEQ. or any other law in which the Borrower any guarantor of the
Obligations is alleged to be insolvent or unable to pay their respective
debts as they mature, or the making by the Borrower or any guarantor of the
Obligations of an assignment for the benefit of creditors or the granting
of a trust mortgage for the benefit of creditors.
(h) The service upon the Lender hereof of a writ in which the Lender
is named as trustee of the Borrower or of any guarantor of the Obligations.
(i) A judgment or judgments for the payment of money shall be
rendered against the Borrower and any such judgment shall remain
unsatisfied and in effect for any period of thirty (30) consecutive days
without a stay of execution.
(j) Any levy, seizure, attachment, execution or similar process shall
be issued or levied on any of the property of the Borrower.
(k) The termination of any guaranty of the Obligations.
(l) The occurrence of such a change in the condition or affairs
(financial or otherwise) of the Borrower or any guarantor or other surety
for any of the obligations, or the occurrence of any event or circumstance
such that the Lender, in its sole discretion, deems that it is insecure or
that the prospects for timely or full payment or performance of any of the
Obligations have been or may be impaired.
6.2 DEFAULT. If an Event of Default shall occur, at the election of the
Lender, all Obligations shall become immediately due and payable without
notice or demand, except with respect to Obligations payable on DEMAND, which
shall be due and payable on DEMAND, whether or not an Event of Default has
occurred.
The Lender is hereby authorized, at its election, after an Event of Default
or after Demand, without any further demand or notice except to such extent as
notice may be required by applicable law, to take possession and/or sell or
otherwise dispose of all or any of the Collateral at public or private sale; and
the Lender may also exercise any and all other rights and remedies of a secured
party under the Code or which are otherwise accorded to it by applicable law,
all as the Lender may determine. If notice of a sale or other action by the
Lender is required by applicable law, unless the Collateral is perishable or
threatens to decline speedily in value or is of a type customarily sold on a
recognized market, the Borrower agrees that five (5) days' written notice to the
Borrower, or the shortest period of written notice permitted by such law,
whichever is larger, shall be sufficient notice; and that to the extent
permitted by law, the Lender, its officers, attorneys and agents may bid and
become purchasers at any such sale, if public, and may purchase
15
at any private sale any of the Collateral that is or a type customarily sold
on a recognized market or which is the subject of widely distributed standard
price quotations. Any sale (public or private) shall be free from any right
of redemption, which the Borrower hereby waives and releases. No purchaser
at any sale (public or private) shall be responsible for the application of
the purchase money. Any balance of the net proceeds of sale remaining after
paying all Obligations of the Borrower to the Lender shall be returned to the
Borrower or to such other party as may be legally entitled thereto; and if
there is a deficiency, the Borrower shall be responsible for the same, with
interest. Upon demand by the Lender, the Borrower shall assemble the
Collateral and make it available to the Lender at a place designated by the
Lender which is reasonably convenient to the Lender and the Borrower. The
Borrower hereby acknowledges that the Lender has extended credit and other
financial accommodations to the Borrower upon reliance of the Borrower's
granting the Lender the rights and remedies contained in this Agreement
including without limitation, the right to take immediate possession of the
Collateral upon the occurrence of an Event of Default or after DEMAND with
respect to Obligations payable on DEMAND and the Borrower hereby acknowledges
that the Lender is entitled to equitable and injunctive relief to reinforce
any of its rights and remedies hereunder or under the Code and the Borrower
hereby waives any defense to such equitable or injunctive relief based upon
any allegation of the absence of irreparable harm to the Lender.
6.3 POWER OF ATTORNEY. The Borrower hereby irrevocably constitutes and
appoints the Lender as the Borrower's true and lawful attorney, with full
power of substitution, at the sole cost and expense of the Borrower but for
the sole benefit of the Lender, upon the occurrence of an Event of Default or
after DEMAND with respect to Obligations payable on DEMAND, to convert the
Collateral into cash, including, without limitation, completing the
manufacture or processing of work in process, and the sale (either public or
private) of all or any portion or portions of the Inventory and other
Collateral; to enforce collection of the Collateral, either in its own name
or in the name of the Borrower, including, without limitation, executing
releases, compromising or settling with any Debtors and prosecuting,
defending, compromising or releasing any action relating to the Collateral;
to receive, open and dispose of all mail addressed to the Borrower and to
take therefrom any remittances or proceeds of Collateral in which the Lender
has a security interest; to notify Post Office authorities to change the
address for delivery of mail addressed to the Borrower to such address as the
Lender shall designate to endorse the name of the Borrower in favor of the
Lender upon any and all checks, drafts, money orders, notes, acceptances or
other instruments of the same or different nature; to sign and endorse the
name of the Borrower on and to receive as secured party any of the
Collateral, any invoices schedules of Collateral, freight or express
receipts, or bills of lading, storage receipts, warehouse receipts, or other
documents of title of the same or different nature relating to the
Collateral; to sign the name of the Borrower on any notice of the Debtors or
on verification of the Collateral; and to sign and file or record on behalf
of the Borrower any financing or other statement in order to perfect or
protect the Lender's security interest. The Lender shall not be obliged to
do any of the acts or exercise any of the powers hereinabove authorized, but
if the Lender elects to do any such act or exercise any such power, it shall
not be accountable for more than it actually receives as a result of such
exercise of power, and it shall not be responsible to the Borrower except for
willful misconduct in bad faith. All powers conferred upon the Lender by this
Agreement, being coupled with an interest, shall be irrevocable so long as
any Obligation of the Borrower to the Lender shall remain unpaid.
16
6.4 NONEXCLUSIVE REMEDIES. All of the Lender's rights and remedies not only
under the provisions of this Agreement but also under any other agreement or
transaction shall be cumulative and not alternative or exclusive, and may be
exercised by the Lender at such time or times and in such order of preference
as the Lender in its sole discretion may determine.
6.5 REASSIGNMENT TO BORROWER. Whenever the Lender deems it desirable that
any legal action he instituted with respect to any Collateral or that any
other action be taken in any attempt to effectuate collection of any
Collateral, the Lender may reassign the item in question to the Borrower (and
if the Lender shall execute any such reassignment, it shall automatically be
deemed to be without recourse to the Lender in any event) and require the
Borrower to proceed with such legal or other action at the Borrower's sole
liability, cost and expense, in which event all amounts collected by the
Borrower on such item shall nevertheless be subject to the Lender's security
interest.
7. MISCELLANEOUS
7.1 WAIVERS. The Borrower waives notice of nonpayment, demand, presentment,
protest or notice of protest of the Collateral, and all other notices,
consents to any renewals or extensions of time of payment thereof, and
generally waives any and all suretyship defenses and defenses in the nature
thereof.
7.2 SEVERABILITY. If any provision of this Agreement or portion of such
provision or the application thereof to any person or circumstance shall to
any extent be held invalid or unenforceable, the remainder of this Agreement
(or the remainder of such provision) and the application thereof to other
persons or circumstances shall not be affected thereby.
7.3 SET-OFF. Any deposits, balances or other sums credited by or due from
the Lender or any of its affiliates to Borrower and any security or other
property of the Borrower in the possession of the Lender, whether for
safekeeping or otherwise, may, at any time whether or not an Event of Default
has occurred or demand has been made, without notice to Borrower, or
compliance with any other condition precedent now or hereafter imposed by
statute, rule of law, or otherwise (all of which are hereby expressly waived)
be set off, appropriated and applied by Lender against any and all of the
Obligations in such manner as the Lender in its sole discretion may determine.
7.4 INDEMNIFICATION. The Borrower shall indemnify, defend and hold the
Lender harmless of and from any claim brought or threatened against the
Lender by Borrower, any guarantor or endorser of the Obligations, or any
other person (as well as from attorneys' reasonable fees and expenses in
connection therewith) on account of the Lender's relationship with the
Borrower, or any guarantor or endorser of the Obligations (each of which may
be defended, compromised, settled or pursued by the Lender with counsel of
the Lender's election, but at the expense of the Borrower), except for any
claim arising out of the gross negligence or willful misconduct of the
Lender. The within indemnification shall survive payment of the Obligations,
and/or any termination, release or discharge executed by the Lender in favor
of the Borrower.
17
7.5 COSTS AND EXPENSES. The Borrower shall pay to the Lender any and all
costs and expenses (including, without limitation, reasonable attorneys'
fees, court costs, litigation and other expenses) incurred or paid by the
Lender in establishing, maintaining, protecting or enforcing any of the
Lender's rights or the Obligations, including, without limitation, any and
all such costs and expenses incurred or paid by the Lender in defending the
Lender's security interest in, title or right to the Collateral or in
collecting or attempting to collect or enforcing or attempting to enforce
payment of the Collateral.
7.6 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be an original, but all of which shall
constitute but one agreement.
7.7 BINDING EFFECT OF AGREEMENT. This Agreement shall be binding upon and
inure to the benefit of the respective heirs, executors, administrators,
legal representatives. successors and assigns of the parties hereto, and
shall remain in full force and effect (and the Lender shall be entitled to
rely thereon) until terminated as to future transactions by written notice
from either Party to the other party of the termination hereof; provided that
any such termination shall not release or affect any Collateral in which the
Lender already has a security interest or any Obligations incurred or rights
accrued hereunder prior to the effective date of such notice (as hereinafter
defined) of such termination. Notwithstanding any such termination, the
Lender shall have a security interest in all Collateral to secure the payment
and performance of Obligations arising after such termination as a result of
commitments of undertakings made or entered into by the Lender prior to such
termination. The Lender may transfer and assign this Agreement and deliver
the Collateral to the assignee, who shall thereupon have all of the rights of
the Lender; and the Lender shall then be relieved and discharged of any
responsibility or liability with respect to this Agreement and the Collateral.
7.8 FURTHER ASSURANCES. Borrower will from time to time execute and deliver
to the Lender, and take or cause to be taken, all such other further action
as the Lender may request in order to effect and confirm or vest more
securely in the Lender all rights contemplated or to vest more fully in or
assure to the Lender the security interest in the Collateral granted to the
Lender by this Agreement or to comply with applicable statute or law and to
facilitate the collection of the Collateral.
7.9 AMENDMENTS AND WAIVERS. This Agreement may be amended and Borrower may
take any action herein prohibited, or omit to perform any act herein required
to be performed by it, if Borrower shall obtain the Lender's prior written
consent to each such amendment, action or omission to act. No delay or
omission on the part of Lender in exercising any right hereunder shall
operate as a waiver of such right or any other right and waiver on any one or
more occasions shall not be construed as a bar to or waiver of any right or
remedy of Lender on any future occasion.
7.10 TERMS OF AGREEMENT. This Agreement shall continue in force and effect so
long as any Obligations or obligation of Borrower to Lender shall be outstanding
and is supplementary to each and every other agreement between Borrower and
Lender and shall not be so construed as to
18
limit or otherwise derogate from any of the rights or remedies of Lender or
any of the liabilities, obligations or undertakings of Borrower under any
such agreement, nor shall any contemporaneous or subsequent agreement between
Borrower and the Lender be construed to limit or otherwise derogate from any
of the rights or remedies of Lender or any of the liabilities, obligations or
undertakings of Borrower hereunder, unless such other agreement specifically
refers to this Agreement and expressly so provides.
7.11 NOTICES. Any notices under or pursuant to this Agreement shall be
deemed duly received and effective if delivered in hand to any officer of
agent of the Borrower or Lender, or if mailed by registered or certified
mail, return receipt requested, addressed to the Borrower or Lender at
address set forth in this Agreement or as any Party may from time to time
designate by written notice to the other party.
7.12 MASSACHUSETTS LAW. This Agreement is intended to take effect as a
sealed instrument and has been executed or completed and is to be performed
in Massachusetts, and it and all transactions thereunder or pursuant thereto
shall be governed as to interpretation, validity, effect, rights, duties and
remedies of the parties thereunder and in all other respects by the domestic
laws of Massachusetts.
7.13 REPRODUCTIONS. This Agreement and all documents which have been or may
be hereinafter furnished by Borrower to the Lender may be reproduced by the
Lender by any photographic, photostatic, microfilm, xerographic or similar
process, and any such reproduction shall be admissible in evidence as the
original itself in any judicial or administrative proceeding (whether or not
the original is in existence and whether or not such reproduction was made in
the regular course of business).
7.14 VENUE. Borrower irrevocably submits to the nonexclusive jurisdiction of
any federal or state court sitting in Massachusetts, over any suit, action or
proceeding arising out of or relating to this Agreement. Borrower
irrevocably waives, to the fullest extent it may effectively do so under
applicable law, any objection it may now or hereafter have to the laying of
the venue of any such suit, action or proceeding brought in any such court
and any claim that the same has been brought in an inconvenient forum.
Borrower irrevocably appoints the Secretary of State of the Commonwealth of
Massachusetts as its authorized agent to accept and acknowledge on its behalf
any and all process which may be served in any such suit, action or
proceeding, consents to such process being served (i) by mailing a copy
thereof by registered or certified mail, postage prepaid, return receipt
requested to Borrower and (ii) by serving the same upon such agent, and
agrees that such service shall in every respect be deemed effective service
upon Borrower.
7.15 JURY WAIVER. THE BORROWER AND LENDER EACH HEREBY KNOWINGLY, VOLUNTARILY
AND INTENTIONALLY, AND AFTER AN OPPORTUNITY T0 CONSULT WITH LEGAL COUNSEL, WAIVE
ANY AND ALL RIGHTS TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING IN CONNECTION
WITH THIS AGREEMENT, THE OBLIGATIONS, ALL MATTERS CONTEMPLATED HEREBY AND
DOCUMENTS EXECUTED IN CONNECTION HEREWITH. THE BORROWER CERTIFIES THAT NEITHER
THE LENDER NOR
19
ANY OF ITS REPRESENTATIVES, AGENTS OR COUNSEL HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT THE LENDER WOULD NOT IN THE EVENT OF ANY SUCH PROCEEDING SEEK
TO ENFORCE THIS WAIVER OF RIGHT TO TRIAL BY JURY.
Witness Borrower
Fix-Corp International, Inc.
/s/ Xxxxxx Xxxxx By: /s/ Xxxx Xxxxxx
---------------------------- ---------------------------
Xxxx Xxxxxx, President
Accepted at Boston, Massachusetts: Xxxxxx Xxxxxxxx Capital Corporation
By:/s/ Xxxxxx X. Xxxxx
-----------------------
Name: Xxxxxx X. Xxxxx
Title: President
20
SCHEDULE 5.1
February 1997 $ 20,907
March 1997 84,271
April 1997 79,734
May 1997 79,734
June 1997 79,734
July 1997 79,734
August l997 123,122
September 1997 250,517
October 1997 394,198
November 1997 394,198
December 1997 394,198
January 1998 394,198
21
_________________________________________________Quantum Exhibit C to Exhibit 8
SCHEDULE 1.02A
PERSONAL PROPERTY SOLD TO BUYER
-----------------------------------------------------------------------------------------------------------------------------------
LINE 7 EQUIPMENT AND MACHINERY LIST
ASSET ID ASSET NAME MAKE MODEL NOTE
-----------------------------------------------------------------------------------------------------------------------------------
CY1001 BALE CONVEYOR HUSTLER B2677 (SER.#) 72" W x 27' L 1/4" PLATE STEEL BELT
B81002 BALE BREAKER HUSTLER B2679 (SER #) 72" W x 72' L w/ 30 HP - EDDY CURRENT
DRIVE
CY1003 VIBRATORY CONVEYOR &
PUNCH-PLATE SCREEN HUSTLER B2680 (SER. #) 60" W x 23' L PUNCH-PLATE
2"x10 ROWS - CONVEYOR BED
CY1004 FLAT-BELT, REFUSE CONVEYOR HUSTLER B2682 (SER. #) 12" W x 6' L FLAT BELT w/ CLEATS
CY1005 INCLINED, CLEATED, WASTE
CONVEYOR HUSTLER B2684 (SER. #) 12" x 12' L FLAT BELT WITH CLEATS
CY1006 MANUAL SORTING CONVEYOR HUSTLER B2686 (SER. #) 36" W x 30' L FLAT BELT
CY1007 INCLINED, CLEATED CONVEYOR HUSTLER B2689 (SER. #) 36" W x 20' l FLAT BELT
w/ MAG. HEAD PULLEY
CY1007A SLIDE CONVEYOR CUSTOM BRIDGES INCLINED CLEATED CONVEYORS
CY1011 INCLINED, CLEATED CONVEYOR HUSTLER B2692 (SER. #) 36" W x 19'6" L FLAT BELT
w/ CLEATS & MAG. HEAD PULLEY
GR1013 GRANULATOR CUMBERLAND 00X 000 XX XXXXX - 0 XXXXX XXXXX -
0/0" BED-SCREEN
BL1014 PRIMARY ELUTRIATOR BLOWER STERLING SYSTEMS 7075FV (CCWUD) COMPONENT OF STERLING'S 3210EL SYSTEM
FS1015 ELUTRIATION VESSEL STERLING SYSTEMS EL32C IBID - SS - 7" OD INLET ON 146" STAND
BL1016 SECONDARY ELUTRIATOR BLOWER STERLING SYSTEMS 1115 FV (CCWUD) IBID - PROVIDES FLUIDIZATION IN
ELUTRIATOR - DISCHARGES TO CYCLONE
FS1017 AIR CYCLONE STERLING SYSTEMS #13 IBID - SS #13 CYCLONE w/ SIDE-MOUNTED
FILTER HEAD - 16" D x 144" LONG
VS1019 DIRTY-FLAKE PICK-UP BIN AND
FEED AUGER CUSTOM SS - 6"D x 13' L INCLINED XXXXX -
XXXXXX VIBRATOR CD 36-250
VS1021 COLD WASH TANK CUSTOM SS - 500 GAL. - 6-SECTION XXX-XXXX
XXX0000X,X,X COLD WASH TANK MIXERS PHILADELPHIA MIXER PG 13 1/3 HP
MXP1021A,B,C,D COLD WASH TANK PULLERS CUSTOM PNEUMATIC MIXERS
FS1023 COLD-WASH, DEEP-BED FILTER CUSTOM SS - 270 GAL - INDEXING, REUSABLE
FILTER MEDIUM
P1024 COLD WASH FEED PUMP XXXXXX 1-1/4" x 1-1/2" x 7" SS IMPELLER
FS1022 COLD WASH DEWATERING DRYER XXXXXX DAY D312 10 HP DRYER MOTOR - SS FRAME AND
ROTOR - STELLITED ROTOR
VS1027 INTERMEDIATE FLAKE XXXXXX AND
AUGER CUSTOM SS - 3.5 CU YD BIN - 6"D x 22'L
INCLINED AUGER AND LEVEL CONTROL
VS1030 HOT WASH TANK (1 OF 2) CUSTOM SS - 390 GAL - STEAM-JACKETED -
INSULATED
VS1031 HOT WASH TANK (2 OF 2) CUSTOM SS - 390 GAL - STEAM-JACKETED -
INSULATED
MXM1030 HOT WASH TANK MIXER (1 OF 2) PHILADELPHIA MIXER PG 13 5 HP - SS SHAFT & IMPELLERS
MXM1031 HOT WASH TANK MIXER (2 OF 2) PHILADELPHIA MIXER PG 13 5 HP - SS SHAFT & IMPELLERS
FS1032 HOT WASH DEWATERING DRYER XXXXXX DAY D312 SS FRAME AND ROTOR - 10 HP MOTOR
FS1042 HOT WASH-WATER, DEEP-BED FILTER CUSTOM SS - 270 GAL. - INDEXING, REUSABLE,
FILTER MEDIUM
P1043 HOT WASH, DEEP-BED FILTER,
SUMP PUMP XXXXXX XX HOUSING AND IMPELLER -
70 GPM - 5 HP
VS1044 HOT WASH-WATER HEATING
RESERVOIR TANK CUSTOM 4' W x 6' H x 10' L - SS -
STEAM-HEATED - INSULATED - 1200 GAL.
P1044&47 HOT WATER PUMPS WEMCO FL 3" x 5-1/4" - SS HOUSINGS AND
IMPELLERS - 60 GMP - 5 HP DRIVE
MOTORS
VS1033 HOT-WASH, CLEAN-FLAKE BIN CUSTOM SS - 1.5 CU YD
CY1034 HOT-WASH, CLEAN-FLAKE AUGER CUSTOM SS - 6"D x 8'L - 2500 LB/HR -
1 HP MOTOR
-----------------------------------------------------------------------------------------------------------------------------------
LINE 7 EQUIPMENT AND MACHINERY LIST
ASSET ID ASSET NAME MAKE MODEL NOTE
-----------------------------------------------------------------------------------------------------------------------------------
VS1035 RINSE/SEPARATION TANK CUSTOM SS - 225 GAL.
MXM1035A&B RINSE/SEPARATION TANK MIXERS PHILADELPHIA MIXER PG 13 SS SHAFTS AND IMPELLERS - 0 XX XXXXX
XXXXXX
X0000&00 HYDROCYCLONE PUMPS WEMCO FL 3" x 5-1/5" w/ SS IMPELLERS
FS1036 HYDROCYCLONE SEPARATOR XXXXX ENGINEERING D10B-841
FS1037 HYDROCYCLONE SEPARATOR XXXXX ENGINEERING D10B-841
FS1040 VIBRATORY FILTER SWECO LS30S66
FS1041 PRIMARY CLEAN FLAKE SPIN DRYER XXXXXX DAY D512 SS FRAME AND ROTOR - 00 XX
XXXXX MOTOR
FS1048 FINAL CLEAN FLAKE SPIN
DRYER - AIR ASSISTED XXXXXX DAY D532 SS FRAME AND ROTOR - 00 XX
XXXXX XXXXX
XX0000 EXHAUST BLOWER TWIN CITY FAN BC-SW SIZE 000 - 0000 XXX - 0 XX
XXXXX MOTOR
FS1049 DRYER BLOWER EXHAUST FILTERS CUSTOM 4 - 15" DIA. FILTER SOCKS
VS1050 INTERMEDIATE DRY FLAKE BIN
w/ VIBRATOR & AIRVEYOR STERLING SYSTEMS SGB-03080 COMPONENT OF STERLING'S 3210EL
SYSTEM - AL - 30 CU FT`
BL1051 CLEAN FLAKE ELUTRIATOR BLOWER STERLING SYSTEMS 7075FV (CCWUD) IBID - 7.5 HP MOTOR
FS1052 CLEAN FLAKE ELUTRIATOR STERLING SYSTEMS EL32C IBID - SS - 7" INLET NOZZLE
BL1054 CYCLONE BLOWER STERLING SYSTEMS 1115FV IBID - 15 HP MOTOR
FS1055 ELUTRIATED-WASTE CYCLONE STERLING SYSTEMS #13 IBID - SS - #13 CYCLONE w/ SIDE
MOUNTED FILTER HEAD
FS1056 CYCLONE EXHAUST FILTER STERLING SYSTEMS IBID - 6 - 16" d x 144" LONG
FILTER BAGS
VS1053 ELUTRIATED FLAKE RECEIVER L - 4 SYSTEMS AL - 4W x 4'L x 4' DEEP (2.2 CU YD) -
w/ LEVEL CONTROL & VIBRATOR
FR1099 ELUTRIATED, CLEAN-FLAKE VACUUM
TRANSFER SYSTEM L - R SYSTEMS VL-500 10 HP w/ L-R 36FR003C FILTERS
VS1057 ELUTRIATED, CLEAN-FLAKE SURGE BIN L - R SYSTEMS 7' x 7' x 14'H (5000 LB) - AL - HIGH
LEVEL SENSOR - SIGHT GLASS
FR1100 BLENDING-STATION, VACUUM
TRANSFER SYSTEM L - R SYSTEMS VL-500 20 HP VACUUM BLOWER w/ SOUND
ENCLOSURE
VS1077A WEIGH BLENDER - CLEAN FLAKE BIN L - R SYSTEMS WSB-2000 4 L-R ENGR SYSTEM, 36" x 36" x 70" AL
BIN w/ LEVEL SENSOR & 2 CU FT RCVR
VS1077B,C,D WEIGH BLENDER - ADDITIVE
BINS (3) L - R SYSTEMS STOCK 14" x 14" x 48"
SF1079A,B,C,D VIBRATORY FEEDERS SYNTRON FMC #8F-01 8 X 20 AND FMC #F-10C
VIBRATORY FEEDERS
VS1076 WEIGH XXXXXX L - R SYSTEMS WBS-2000 150 LB CAP-PROGRAMMABLE WEIGH SCALE
BLENDER
BD1060 CLEAN FLAKE & ADDITIVES
RIBBON BLENDER L - R SYSTEMS CUSTOM 200 # CAP - AL MIXING BARREL w/ 2 HP
GEAR DRIVE AND MIXING PADDLE
FR1101 EXTRUDER-FEED, VACUUM
TRANSFER SYSTEM L - R SYSTEMS VL-500 20 HP VACUUM BLOWER
VS1063 EXTRUDER FEED XXXXXX XXXX CUSTOM 13 CU FT w/ L-R SYSTEMS VPW-500
POWDER RECEIVER
EXM1060 EXTRUDER MOTOR XXXXXXX 508AT 400 HP DC w/ COOLING BLOWER ATTACHMENT
GB1061 EXTRUDER GEAR-BOX XXXX 6"H-6026 XX 00 6.1 GEAR RATIO
EX1060 EXTRUDER XXXX 6"D - 36 1L/D - VACUUM-VENTED
SP1074 SCREEN CHANGER KREYENBORG SWE-200-88/RS 2 BOLT, AUTO-BACKFLUSHING
TYPE - 206 mm SCREENS
PZ1069 PELLETIZER XXXXXXXX WRP-12V WATER-RING TYPE - VARIABLE SPEED -
2HP/3600 RPM, MAX
VS1072 PELLET WATER DEWATERING TROUGH XXXXXXXX PART OF WRP-12V SYSTEM
2
-----------------------------------------------------------------------------------------------------------------------------------
LINE 7 EQUIPMENT AND MACHINERY LIST
ASSET ID ASSET NAME MAKE MODEL NOTE
-----------------------------------------------------------------------------------------------------------------------------------
FS1071 ELLET DRYER - AIR ASSISTED XXXXXXXX XX FRAME AND ROTOR - 2HP/1200 RPM -
PART OF WRP-12V SYSTEM
VS1085 XXXXXXXXX XXXXX XXX X - X XXXXXXX 00"x00"x00"X XX - 0/0" SCREEN - MAGNEETIC SCREEN -
LEVEL CONTROLLED
3
-----------------------------------------------------------------------------------------------------------------------------------
LINE 8 EQUIPMENT AND MACHINERY LIST
ASSET ID ASSET NAME MAKE MODEL NOTE
-----------------------------------------------------------------------------------------------------------------------------------
CY2001 BALE CONVEYOR HUSTLER B2676 (SER.#) 72" W x 27' L 1/4" plate steel belt
BB2002 BALE XXXXXX HUSTLER B2678 (SER. #) 72" W x 72' L
CY2003 VIBRATORY CONVEYOR & PUNCH
PLATE SCREEN HUSTLER B2681 (SER. #) 60" W x 23' L BED - PUNCH-PLATE:
2"x10 ROWS
CY2004 RESIDUE SLIDE CONVEYOR HUSTLER B2683 (SER. #) 12" W x 6' L FLAT BELT w/ CLEATS
CY2005 CLEATED, INCLINED, RESIDUE
CONVEYOR HUSTLER B2685 (SER. #) 12" W x 12' L FLAT BELT w/ CLEATS
CY2006 INCLINED, CLEATED, SORTING
STATION FEED CONVEYOR HUSTLER B2687 (SER. #) 36" W x 20' L BELT w/ MAG. HEAD PULLEY
CY2007 SORTING CONVEYOR HUSTLER B2688 (SER. #) 36" W x 15' L FLAT SLIDE BELT - TWO
THROW-OUT XXXXXX
CY2008 WASTE/BY-PRODUCT SLIDE CONVEYOR HUSTLER B2691 (SER #) 24" W x 20' L FLAT BELT (REVERSIBLE)
CY2009 WASTE/BY-PRODUCT BALER
FEED CONVEYOR VALLEY FORGE 700 18" W x 15' L FLAT BELT w/ CLEATS
BA2011 WASTE/BY-PRODUCT BALER PIQUA 54-40 HD HYDRAULIC VERTICAL BALER
CY2012 SORTING-LINE TAKE-AWAY CONVEYOR
(INCLINED, CLEATED) HUSTLER B2690 (SER. #) 36" W x 15' L FLAT BELT w/ MAG.
HEAD PULLEY
CY2012A SLIDE CONVEYOR CUSTOM BRIDGES INCLINED, CLEATED CONVEYORS
CY2016 GRANULATOR FEED CONVEYOR
(INCLINED, CLEATED) HUSTLER B2693 (SER. #) 36" W x 19'-6" L FLAT BELT w/ CLEATS
GR2018 GRANULATOR CUMBERLAND 508 100 HP - 1/2" BED-SCREEN - 3-BLADE
ROTOR - SOUND-PROOFED
BL2019 DIRTY FLAKE ELUTRIATOR BLOWER STERLING SYSTEMS 7075FV (CCWUD) A COMPONENT OF STERLING'S
3210EL SYSTEM
FS2020 DIRTY FLAKE ELUTRIATION VESSEL STERLING SYSTEMS EL32C IBID - SS - 7" OD INLET, 146" STAND
BL2021 CYCLONE BLOWER STERLING SYSTEMS 1115FV (CCWUD) IBID - 15 HP BLOWER MOTOR
FS2022 AIR CYCLONE & BAG FILTER STERLING SYSTEMS #13 SS - #13 CYCLONE w/ SIDE MOUNTED
FILTER HEAD
VS2023 DIRTY FLAKE PICK-UP BIN AND
FEED AUGER CUSTOM SS - 3.5 CU YD CAPACITY
w/ 6"D x 13' L INCLINED AUGER
VS2027 HOT WATER WASH TANK (1 OF 2) CUSTOM SS - 390 GAL. - STEAM JACKETED -
INSULATED
VS2026 HOT WATER WASH TANK (2 OF 2) CUSTOM SS - 390 GAL. - STEAM JACKETED -
INSULATED
MXM2027&28 HOT WATER WASH TANK MIXERS PHILADELPHIA MIXER PG 13 SS SHAFT AND IMPELLERS - 5 HP
DRIVE MOTORS
FS2029 HOT WASH DEWATERING DRYER XXXXXX DAY D312 SS ROTOR AND FRAME - STELLITED
ROTOR - 10 HP DRIVE
FS2045 HOT WASH-WATER, DEEP-BED FILTER CUSTOM SS - 270 GAL. - INDEXING, REUSABLE
FILTER MEDIUM
P2046 HOT WASH, DEEP-BED FILTER,
SUMP PUMP XXXXXX 70 GPM PUMP - 5 HP MOTOR -
SS HOUSING & IMPELLER
VS2047 HOT WASH WATER HEATING TANK CUSTOM SS - STEAM-HEATED - INSULATED -
1200 GAL.
P2047&50 HOT WASH WATER PUMPS XXXXXX FL 3" x 5-1/4" 60 GPM - 5 HP MOTOR -
SS HOUSING & IMPELLER
VS2030 HOT WASH CLEAN FLAKE BIN CUSTOM SS - 1.5 CU YD
CY2031 HOT WASH CLEAN FLAKE BIN AUGER CUSTOM XX - 0" X x 0' X - 0000 XX/XX
VS2032 PRIMARY CLEAN FLAKE RINSE TANK CUSTOM 3' W x 6' L x 3 H, SS - 260 GAL. -
3 COMP. STATIC-SCREEN XXXXXXXXX
XXX0000X,X,X PRIMARY RINSE TANK MIXERS PHILADELPHIA MIXER PG-13 SS SHAFT AND IMPELLER - 1/4 HP
P2038 RINSE TANK SUMP PUMP
(COMPARTMENT C) WEMCO FL 190 GPM - 10 HP - SS HOUSING AND
IMPELLER
FS2037 HYDROCYCLONE SEPARATOR
(COMPARTMENT C) XXXXX ENGINEERING D108-841
-----------------------------------------------------------------------------------------------------------------------------------
LINE 8 EQUIPMENT AND MACHINERY LIST
ASSET ID ASSET NAME MAKE MODEL NOTE
-----------------------------------------------------------------------------------------------------------------------------------
FS2044 PRIMARY RINSE SYSTEM
SPIN DRYER XXXXXX DAY D512 SS FRAME AND ROTOR - 10 HP
P2034&36 PRIMARY RINSE SYSTEM SUMP
PUMPS (COMPARTMENTS A&B) WEMCO FL 190 GPM - 10 HP MOTOR - SS HOUSING &
IMPELLER
XX0000&00 XXXXXXXXXXXX SEPARATORS
(COMPARTMENTS A&B) XXXXX ENGINEERING D108-841
FS2039 "HEAVIES" SPIN DRYER XXXXXX DAY D312 SS FRAME AND ROTOR - 10 HP DRYER MOTOR
VS2040 SECONDARY, CLEAN-FLAKE
RINSE TANK CUSTOM SS - 200 GAL.
MXM2040 SECONDARY RINSE TANK MIXER PHILADELPHIA MIXER PC-13 SS SHAFT AND IMPELLER - 1/4 HP
P2041 SECONDARY RINSE TANK
SUMP PUMP WEMCO FL 190 GPM - 10 HP - SS HOUSING AND
IMPELLER
FS2042 HYDROCYCLONE SEPARATOR XXXXX ENGINEERING D108-841
FS2043 VIBRATORY FILTER SWECO LS30S66
FS2051 FIRST-STAGE DEWATERING DRYER XXXXXX DAY D312 SS FRAME AND ROTOR- 10 HP MOTOR
FS2052 SECOND-STAGE DEWATERING DRYER XXXXXX DAY D312 SS FRAME AND ROTOR - 10 HP MOTOR
FS2053 FINAL DEWATERING DRYER
WITH AIR-ASSIST XXXXXX DAY D532 SS HOUSING AND ROTOR - 15 HP MOTOR
BL2053 EXHAUST BLOWER TWIN CITY FAN BC-SW SIZE 165; 4800 CFM - 3HP
w/ 4-15" DIA. FILTER SOCKS
VS2057 INTERMEDIATE DRY FLAKE BIN
w/ VIBRATOR & AIRVEYOR STERLING SYSTEMS SGB-03060 COMPONENT OF STERLING'S 3210EL
SYSTEM - AL - 30 CU FT
BL2058 ELUTRIATOR XXXXX XXXXXXXX SYSTEMS 7075FV (CCWUD) IBID - 7.5 HP BLOWER MOTOR
FS2059 CLEAN FLAKE ELUTRIATION VESSEL STERLING SYSTEMS EL32C IBID - SS
BL2060 CYCLONE BLOWER STERLING SYSTEMS 1115FV (CCWUD) IBID - 15 HP BLOWER
FS2061 ELUTRIATED WASTE CYCLONE STERLING SYSTEMS #13 IBID - SS - #13 CYCLONE w/ SIDE
MOUNTED FILTER HEAD
FS2062 CYCLONE EXHAUST FILTER STERLING SYSTEMS IBID - 6 - 16" D x 114" LONG
FILTER BAGS
VS2063 ELUTRAITED FLAKE RECEIVER L - R SYSTEMS STOCK AL - 4W x 4'L x 4' DEEP - WITH
LEVEL CONTROLLERS
FR2104 ELUTRIATED, CLEAN-FLAKE VACUUM
TRANSFER SYSTEM L - R SYSTEMS VL-500 15 HP VACUUM BLOWER w/ L-R 36FR003C
RCVR
VS2065 ELUTRIATED, CLEAN-FLAKE
SURGE BIN L - R SYSTEMS CUSTOM AL - 7' x 7' x 14' H (5000 LB) -
HIGH LEVEL SENSOR - SIGHT GLASS
FR2105 BLENDING STATION VACUUM
TRANSFER SYSTEM L - R SYSTEMS VL-500 20 HP VACUUM BLOWER
VS2065A WEIGH BLENDER - CLEAN FLAKE BIN L - R SYSTEMS CUSTOM 36 CU FT XX XXXXXX
w/ L-R VL-4500/02 VACUUM RECVR
VS2065B,C,D WEIGH BLENDER - ADDITIVE
BINS (3) L - R SYSTEMS STOCK 14" x 14" x 48" AL BIN
w/ L-R VPW-400 POWDER RECEIVER
SF2067A,B,C,D VIBRATORY FEEDERS SYNTRON BF-01C FMC #8F-01 8 x 20 AND FMC #F-10C
VIBRATORY FEEDERS
VS2067 WEIGH XXXXXX L - R SYSTEMS WSB-2000 4 150 LB CAPACITY - PROGRAMMABLE
BD2068 CLEAN FLAKE & ADDITIVES
RIBBON BLENDER X - X XXXXXXX XXXXX 000 # XXX - XX MIXING BARREL w/ 2 HP
GEAR DRIVE & MIXING PADDLE
FR2106 EXTRUDER FEED VACUUM
TRANSFER SYSTEM L - R SYSTEMS VL-500 20 HP VACUUM BLOWER
VS2091 EXTRUDER FEED XXXXXX XXXX CUSTOM 13 CU FT CAP w/L-R VPW - 500
POWDER RECEIVER
EXM2068 EXTRUDER MOTOR XXXXXXX 508AT 400 HP DC w/ COOLING BLOWER
GB2069 EXTRUDER GEAR-BOX XXXX 6:H-6026 RH 20.6 1 GEAR RATIO
EX2068 EXTRUDER XXXX 6: - 36 1 LL/D - VACUUM VENTED
2
-----------------------------------------------------------------------------------------------------------------------------------
LINE 8 EQUIPMENT AND MACHINERY LIST
ASSET ID ASSET NAME MAKE MODEL NOTE
-----------------------------------------------------------------------------------------------------------------------------------
SP2082 SCREEN CHANGER KREYENBORG SWE-200-88/RS 2-BOLT - AUTO BACKFLUSHING TYPE -
205 mm SCREENS
PZ2082 PELLETIZER XXXXXXXX WRP-12V WATER RING-TYPE - 2 HP, VARIABLE
SPEED MOTOR, 3600 RPM, MAX.
VS2080 PELLET WATER DEWATERING TROUGH XXXXXXXX COMPONENT OF WRP-12V PACKAGE
FS2079 PELLET DRYER - AIR ASSISTED XXXXXXXX IBID - SS FRAME AND ROTOR - 2 HP,
1200 RPM
VS2083 XXXXXXXXXX XXXXX XXX X - X XXXXXXX 00"x00"x00"X XX - 0/0" SCREEN - MAGNETIC SCREEN -
LEVEL CONTROLLED
FS2045A HOT FILTRATE SIEVE HYCOR HS36/A44 SS CONSTRUCTION
3
-----------------------------------------------------------------------------------------------------------------------------------
PLANT SUPPORT EQUIPMENT AND MACHINERY LIST
ASSET ID ASSET NAME MAKE MODEL NOTE
-----------------------------------------------------------------------------------------------------------------------------------
F-2 AUTO BACK-FLUSH FILTER YARDNEY MM3660-3A (3) 200 GPM MULTI-MEDIA FILTERS
w/AUTO CONTROLS
F-101 FILTER PRESS PAC PRESS MODEL P800E132A-10/15; 15 CU FT CAP
FLOWMETER XXXXXXXX MODEL FM 621-031-401-0 SIZE 3
P-103 PROCESS FEED PUMPS MCM 3 x 4 x 11
P-109 RECYCLE PUMP XXXXXX 10 ICU - 1 100GPM 5HP
P-105 FILTER PRESS FEED PUMP XXXXXX XXXX SA2-A SANDPIPER TYPE 5; 50 GPM, AIR POWERED,
DOUBLE DIAGRAM PUMP
P-112 SKIM TRANSFER PUMP XXXXXX XXXX SA2-A SANDPIPER TYPE 5; 50 GPM, AIR POWERED,
DOUBLE DIAGRAM PUMP
RE-USE WATER PUMP (2) XXXXXXX 3G5-4 250 GPM @ 00 XXX
X-000/0 XXXX XXXX XXXXXX XXXX X0X00-X SELF PRIMING CENTRIFUGAL PUMP
T-111 SAMPLE TANK NORWESCO STOCK 550 GAL. 67" D x 42" H POLETHYLENE
T-107 DAF CELL TANK PCE 120 DISSOLVED AIR FILTER w/ SKIMMER AND
MIXERS MFG 1/95
HILLSIDE SCREEN GALA 160 FRS
SCREW PRESS HYCOR SPR 260 HELIXPRESS UNIT, SPR 260, HYCOR
S/N H-0011096
T-101 EQUALIZATION TANK NORWESCO STOCK 5000 GAL. POLY TANK 102" D x 152" H
w/ MIXER
A-101 EQ TANK MIXER 3/4 HP GEAR DRIVE MIXER FITS INTO
EQ TANK
T-102 EQUALIZATION TANK NORWESCO STOCK 5000 GAL. POLY TANK 102" D x 152" H
T-103 SKIM HOLDING TANK NORWESCO STOCK 1700 GAL. POLY TANK 87"D x 72" H
FACILITY BOILER CLEAVOR XXXXXX C8-700-1505 150 PSI PACKAGED BOILER SYSTEM
FLOOR SCALE GSE 550 PORTABLE FLOOR SCALE
REFUSE COMPACTOR XxXXXXX 40067 HYDRAULIC COMPACTOR FOR A
42 CU FT REFUSE BOX
TRUCK SCALE FAIRBANKS 90-161-1 35 TON SCALE
PLANT AIR SUPPLY COMPRESSOR SULLAIR SRF (2) SRF 1/4000 AIR COMPRESSORS
FOR PLANT AIR
BALE WIRE DICER SWEED 510 CUTS BALE WIRES
FLOOR SWEEPER POWERBOSS TSS/80-HD DRIVING FLOOR MACHINE
FORK LIFTS (2) TCM FCG 18N7T
FORK LIFT TCM FG20N3T
FIRE WATER AND SPRINKLER PUMP PEERLESS 6AEF14G 13" D IMP 100 HP w/ XXXXXX XXXXX
CONTROL C 38204-4J SYSTEM
COOLING TOWER MARLEY 28144
FR1103 SILO VACUUM TRANSFER SYSTEM L - R SYSTEMS VL-500 15 HP BLOWER MOTOR w/ FILTERS
VS1066 15000 LB PELLET SILO PEABODY TECHTANK CUSTOM 12' D x 16' H AL CONST
RA1068 15000 LB SILO ROTARY AIR LOCK XXXXX & SONS HD SIZE 10" x 10" - 1 HP DRIVE MOTOR
VS1069 50000 LB PELLET BLENDING SILO PEABODY TECHTANK CUSTOM 11' D x 29' H - AL CONST w/ BLENDING
TUBE & LEVEL SENSOR
FR1102 VACUUM, PELLET RECIRCULATING L - R SYSTEMS VL-500 w/ AIR FILTERS
-----------------------------------------------------------------------------------------------------------------------------------
PLANT SUPPORT EQUIPMENT AND MACHINERY LIST
ASSET ID ASSET NAME MAKE MODEL NOTE
-----------------------------------------------------------------------------------------------------------------------------------
RA1092 ROTARY AIR LOCK - 50000 XX XXXXX & SONS HD SIZE 10" x 00" - 0 XX XXXXX XXXXX
XX0000 PACKAGING SCALE - 50000 LB SILO SYNTEST SP320 BLENDING SILO FITTED WITH HI AND
LO OUTPUT SLIDE VALVES
BL1095 BLOWER - BULK LOADING SYSTEMS L - R SYSTEMS LSP400-30 30 HP MOTOR
FS1107 TRUCK LOADING CYCLONE L - R SYSTEMS 750 SS - 0 XX XX XXXXXXXX
XX0000 RAILCAR LOADING LINES (2) CUSTOM 4" LINES - PEENED
FR2108 SILO VACUUM TRANSFER SYSTEM L - R SYSTEMS VL-500 15 HP VACUUM BLOWER
VS2094 15000 LB PELLET SILO PEABODY TECH TANK CUSTOM AL CONST - 12' D 16' H
RA2109 15000 LB SILO ROTARY AIR LOCK XXXXX & SONS HD SIZE 10 x 10 1 HP DRIVE MOTOR
VS2097 50000 LB PELLET BLENDING SILO PEABODY TECHTANK CUSTOM 11' D x 29' H - AL CONST -
w/ BLENDING TUBE & LEVEL SENSOR
FR2107 VACUUM, PELLET RECIRCULATING L - R SYSTEMS VL-500 15 HP VACUUM BLOWER
RA2100 ROTARY AIR-LOCK - 50000 XX XXXXX & SONS HD 0 XX XXXXX XXXXX
XX0000 PACKAGING SCALE - 50000 LB SILO SYNTEST SP320 BLENDING SILO FITTED WITH HI AND
LO OUTPUT SLIDE VALVES
2
-----------------------------------------------------------------------------------------------------------------------------------
LIST OF OBSOLETE EQUIPMENT AND MACHINERY
ASSET ID ASSET NAME MAKE MODEL NOTE
-----------------------------------------------------------------------------------------------------------------------------------
FS2055 FLAKE DRYER - AIR ASSISTED XXXXXX DAY D532 SS FRAME & ROTOR - 15 HP MOTOR -
NEEDS NEW ROTOR
VS2054 METAL DETECTOR & DIVERTER ERIEZ EZ TEC III SERIES REJECTS AL FROM CLEAN PET FLAKE
SP-1074 (OLD) SLDE-PLATE SCREEN-CHANGER XXXXXXXX XXX-00 0" XXXXXXX XXXX - XXXXXXXXX UNIT -
NEEDS NEW INLET ADAPTOR
SP-2062 (OLD) SLDE-PLATE SCREEN-CHANGER XXXXXXXX XXX-00 0" XXXXXXX XXXX - XXXXXXXXX UNIT -
NEEDS NEW INLET ADAPTOR
VS2112 PET FLAKE POLISHING
TANK & AUGER CUSTOM SS - APPROX. 100 GAL. CAP.
SH1009 SHREDDER SHRED TECH ST-50 2 x 30 HP DRIVE MOTORS - NEEDS NEW
ROTORS & PNEUMATIC XXXXXXX
SH2014 SHREDDER SHRED TECH ST.50 2 x 30 HP DRIVE MOTORS - NEEDS NEW
MOTORS & PNEUMATIC XXXXXXX
DM1010 DRUM MAGNET DINGS MAGNETIC 12 x 36 FC DRUM SCAVENGES FERROMAGNETICS FROM
SHREDDER OUTPUT
DM2015 DRUM MAGNET DINGS MAGNETIC 12 x 36 FC DRUM SCAVENGES FERROMAGNETICS FROM
SHREDDER OUTPUT
Exhibit D to Exhibit 8
[SELVAGE & ASSOCIATES LETTERHEAD]
February 8, 1996
Fix-Corp International, Inc.
00000 Xxxxx Xxxx
Xxxxx 000
Xxxxxxxxx, Xxxx 00000
RE: APPRAISAL
Per your request, I inspected the equipment and related items located in the Mid
Ohio Corporate Park, Heath, Ohio, for the purpose of estimating the current
value of the property.
I have provided you with "Fair Market" value, in place for continuation of the
present operations.
The total value of all appraised property is $6,850,500.00 (Six Million Eight
Hundred Fifty Thousand Five Hundred Dollars).
The "Liquidation" value of the equipment and related items would be
approximately 68% (sixty-eight percent) of the total "Fair Market" evaluation.
This appraisal is a disinterested statement prepared by our company evaluating
the property on the date of this document. We assume no responsibility as to
the ownership of the items listed in this appraisal, not having examined
property titles.
If you have any questions, or need any additional assistance, please do not
hesitate to contact me.
Yours truly,
/s/ Xxxxx Xxxxxxx
Xxxxx Xxxxxxx
XXXXXXX & ASSOCIATES
Enclosures:
[SELVAGE & ASSOCIATES LETTERHEAD]
February 8, 1996
QUANTUM PLASTICS, INC.
MID OHIO CORPORATE PARK
XXXXX XXXXX 00
XXXXX, XXXX
RE: APPRAISAL
Equipment and machinery "IN PLACE AND OPERATIONS", FOR CONTINUED
USAGE" in the reclamation and reprocessing of plastic materials.
QUANTUM PROCESSING LINE #7 consisting of: bale conveyor, bale breaker,
vibratory conveyor & punch-plate screen, flat belt refuse conveyor, inclined
cleated waste conveyor, manual sorting conveyor, inclined cleated conveyor,
slide conveyor, inclined cleated conveyor, granulator, primary elutriator
blower, elutriation vessel, secondary elutriator blower, air cyclone, dirty
flake pickup bin and feed auger, cold wash tank, cold wash tank mixers, cold
wash tank pullers, cold wash deep bed filter, cold wash feed pump, cold wash
dewatering dryer, intermediate flake xxxxxx and xxxxx, hot wash tank (1 of 2) ,
hot wash tank (2 of 2), hot wash tank mixer (1 of 2), hot wash tank mixer (2 of
2), hot wash dewatering dryer, hot wash deep bed filter, hot wash deep bed
filter, sump pump, hot wash water heating reservoir tank, hot water pumps, hot
wash clean flake bin, hot wash clean flake auger, rinse/separation tank,
rinse/separation tank mixers, hydrocyclone pumps, hydrocyclone separator,
hydrocyclone separator, vibratory filter, primary clean flake spin dryer, final
clean flake spin dryer-air assisted, exhaust blower, dryer blower exhaust
filters, intermediate dry flake bin w/vibrator & airveyor, clean flake
elutriator blower, clean flake elutriator, cyclone blower, elutriated waste
cyclone, cyclone exhaust filter, elutriated flake receiver, elutriated clean
flake vacuum transfer system, elutriated clean flake surge bin, blending
station, vacuum transfer system, weigh blender clean flake bin, weight blender
additive bins (3), vibratory feeders, weigh xxxxxx, clean flake & additives
ribbon blender, extruder feed vacuum transfer system, extruder feed xxxxxx,
extruder motor, extruder gear box, extruder, screen changer, pelletizer, pellet
water dewatering trough, pellet dryer-air assisted, pelletizer surge bin, silo
vacuum transfer system, 15,000 lb. pellet silo, 15,000 lb. silo rotary air lock,
50,000 lb. pellet blending silo, vacuum pellet recirculating system, rotary air
lock-50,000 lb. blending silo, packaging scale-50,000 lb. silo, blower-bulk
loading system, truck loading cyclone, rail car loading lines (2)
VALUE .................................................. $2,963,000.00
QUANTUM LINE #8 consisting of: bale conveyor, bale breaker, vibratory conveyor
& punch plate screen, residue slide conveyor, cleated incline residue conveyor,
inclined cleated sorting station feed conveyor, sorting conveyor, waste/by
product slide conveyor, waste/by product baler
feed conveyor, waste/by product baler, sorting line take away conveyor
(inclined, cleated), slide conveyor, granulator feed conveyor (inclined,
cleated), granulator, dirty flake elutriator blower, dirty flake elutriation
vessel, cyclone blower, air cyclone & bag filter, dirty flake pickup bin &
feed auger, hot water wash tank (1 of 2), hot water wash tank (2 of 2), hot
water wash tank mixers, hot wash dewatering dryer, hot wash water deep bed
filter, hot wash deep bed filter sump pump, hot wash water heating tank, hot
wash water pumps, hot wash clean flake bin, hot wash clean flake bin auger,
primary clean flake rinse tank, primary rinse-tank mixers, rinse tank sump
pump (compartment C), hydrocyclone separator (compartment C), primary rinse
system spin dryer, primary rinse system sump pumps (compartments A & B),
"heavies" spin dryer, secondary clean flake rinse tank, secondary rinse tank
mixer, secondary rinse tank sump pump, hydrocyclone separator, vibratory
filter, first stage dewatering dryer, second stage dewatering dryer, final
dewatering dryer with air assist, exhaust blower, intermediate dry flake bin
w/vibrator & airveyor, elutriator blower, clean flake elutriation vessel,
cyclone blower, elutriated waste cyclone, cyclone exhaust filter, elutriated
flake receiver, elutriated clean flake vacuum transfer system, elutriated
clean flake surge bin, blending station vacuum transfer system, weigh
blender-clean flake bin, weigh blender-additive bins (3), vibratory feeders,
weight xxxxxx, clean flake & additives ribbon blender, extruder feed vacuum
transfer system, extruder feed xxxxxx, extruder motor, extruder gear box,
extruder, screen changer, pelletizer, pellet water dewatering trough, pellet
drier-air assisted, pelletizer surge bin, silo vacuum transfer system, 15,000
lb. pellet silo, 15,000 lb. silo rotary air lock, 50,000 pellet blending
silo, vacuum pellet recirculating system-50,000 lb. silo, rotary air
lock-50,000 blending silo, packaging scale-50,000 lb. silo, hot filtrate
sieve.
VALUE ................................................... $2,875,000.00
PLANT SUPPORT EQUIPMENT & MACHINERY consisting of: auto back flush filter,
filter press, flow meter, process feed pumps, recycle pump, filter press feed
pump, skim transfer pump, reuse water pump (2), feed pump, sample tank, daf cell
tank, hillside screen, screw press, equalization tank, eq tank mixer,
equalization tank, skim holding tank, facility boiler, floor scale, refuse
compactor, truck scale, plant air supply compressor, bale wire dicer, floor
sweeper, forklifts (2), forklift, fire water & sprinkler, cooling tower, water
treatment plant, 6000 amp electrical substation & switch gear.
VALUE ................................................... $920,000.00
OBSOLETE EQUIPMENT & MACHINERY consisting of: flake dryer-air assisted, metal
detector & diverter, slide plate screen changers (2), pet flake polishing tank &
auger, shredders (2), drum magnets (2).
VALUE ................................................... $92,500.00
*****PLEASE SEE ATTACHED DOCUMENTS*****
REFERENCES
Xx. Xxxx Xxxxxxxxxx Xx. Xxxxx Xxxxxx
Star Bank, Central Ohio Bank One, Columbus, NA
000 X. Xxxxxxx Xxxx 000 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, XX 00000 Xxxxxxxx, XX 00000
(000) 000-0000 (000) 000-0000
Xx. Xxxxxx Xxxxxxx Xx. Xxxxx X. Xxxxxxx
The Huntington National Bank The Citizens Savings Bank
P.O. Box 1558 Fourth at Walnut Street
Columbus, OH 43260 Xxxxxxx Xxxxx, XX 00000
(000) 000-0000 (000) 000-0000
Xx. Xxxxxxxx Xxxxxx Xx. Xxxx Cokson
Huntington Leasing Company Kingston National bank
X.X. Xxx 0000 X.X. Xxx 000
Xxxxxxxx, XX 00000 Xxxxxxxx, XX 00000
(000) 000-0000 (000) 000-0000
Ms. Xxx Xxxx Mr. Xxxxxx Xxxxxx
BancOhio National Bank Attorney-at-Law
000 Xxxx Xxxxx Xxxxxx 000 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, XX 00000 Xxxxxxxx, XX 00000
(000) 000-0000 (000) 000-0000
Xx. Xxxxxxx X. Xxxxx, Xx. Xx. Xxxxxx X. Xxxxx
BancOhio National Bank Attorney-at-Law
000 Xxxx Xxxxx Xxxxxx One X. Xxxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000 Xxxxxxxx, XX 00000
(000) 000-0000 (000) 000-0000
Xx. Xxxxx Xxxxxx Xx. Xxxxxx X. Xxxx
BancOhio National Bank Attorney-at-Law
000 Xxxx Xxxxx Xxxxxx 00 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000 Xxxxxxxx, XX 00000
(000) 000-0000 (000) 000-0000
Mr. Xxxxx Xxxxx Mr. Xxxxxxx Xxxxxxxxx
Star Bank, Central Ohio Xxxx, Xxxxxxxxx & Xxxx
000 Xxxx Xxxxxxx Xxxx 00 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, XX 00000 Xxxxxxxx, XX 00000
(000) 000-0000 (000) 000-0000
Xx. Xxx Xxxx
U.S. Small Business Adm.
00 Xxxxxxx Xxxx.
Xxxxxxxx, XX 00000
(000) 000-0000
Xx. Xxxx X. Xxxxxxx
Attorney-at-Law
00 X. Xxxx Xxxxxx
Xxxxxxxx, XX 00000
(000) 000-0000
Exhibit E to Exhibit 8
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
A SUMMARY APPRAISAL REPORT
OF
A COMPLETE APPRAISAL
OF
0000 XXXXX XXXXXXX
XXXXX, XXXX
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
PREPARED FOR
FIX-CORP INTERNATIONAL, INC.
00000 XXXXX XXXX XXXXX 000
XXXXXXXXX, XXXX 00000
AS OF
DECEMBER 23, 1996
ESTIMATED MARKET VALUE - $2,100,000.
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
PREPARED BY
XXXXXX X. XXXXXX, MSA, CSI, BCBA, CPA
STATE CERTIFIED GENERAL REAL ESTATE APPRAISER
00 XXXXX XXXX XXXXX, XXXXX 000
XXXXXX, XXXX 00000-0000
000-000-0000
FAX-349-7386
#C612042F
-------------------------------------------------------------------------------
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TABLE OF CONTENTS
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
DESCRIPTIONS
Property Identification - Appraisal Engagement........................... 01
Three Year Ownership History - Environmental Issues...................... 02
Area Map - Area Description & Economic Data.............................. 03
Neighborhood Map......................................................... 04
Neighborhood Description................................................. 05
Site Description......................................................... 06
Description of Improvements.............................................. 07
Highest & Best Use - Valuations Methods Selected......................... 08
VALUATION
Cost Approach - Land..................................................... 09
Cost Approach - Improvements............................................. 10
Income Approach.......................................................... 11
Sales Comparison Approach................................................ 12
Reconciliation & Final Value Estimate.................................... 13
Definition of Market Value - Certification............................... 14
Contingent and Limiting Conditions....................................... 15
Appraiser Requirements Mandated by FIRREA................................ 16
EXHIBITS
Building Sketch.......................................................... 17
Subject Photographs...................................................... 18
Rental Comparable Photographs............................................ 19
Comparable Sales Photographs............................................. 20
Location Map............................................................. 21
Legal Description & Restrictive Covenants................................ 22
Engineers Map............................................................ 23
Appraiser Disclosure Statement........................................... 24
Qualifications Of Appraiser.............................................. 25
PAGE 01
-------------------------------------------------------------------------------
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PROPERTY IDENTIFICATION
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
THE GENERAL LOCATION OF THE SUBJECT IS IN THE STATE OF OHIO, THE COUNTY OF
LICKING AND THE CITY OF HEATH. THE SUBJECT IS ON THE WEST SIDE OF XXXXX
PARKWAY AT 1835. THE SUBJECT IS DESCRIBED IN OFFICIAL RECORD VOLUME 861 PAGE
39. A COPY OF THE LEGAL DESCRIPTION IS ONE OF THE EXHIBITS. THE COUNTY
AUDITOR'S PARCEL NUMBER IS 00-000000-00. THE SUBJECT IS ON THE COUNTY
ENGINEER'S TAX MAP OF HEATH NUMBER 7. A PARTIAL COPY IS ONE OF THE EXHIBITS.
SEE SUBJECT PROPERTY PHOTOGRAPHS EXHIBITS.
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
APPRAISAL ENGAGEMENT
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
THE PURPOSE OF THIS APPRAISAL IS TO ESTIMATE THE MARKET VALUE OF THE SUBJECT.
THE USE OF THIS APPRAISAL REPORT IS FOR LENDING PURPOSES.
THE SCOPE OF THIS APPRAISAL IS A COMPLETE APPRAISAL ACCORDING TO THE UNIFORM
STANDARDS OF PROFESSIONAL APPRAISAL PRACTICE AS PUBLISHED BY THE APPRAISAL
FOUNDATION.
THE PROPERTY RIGHTS TO BE APPRAISED ARE FEE SIMPLE.
PAGE 02
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
THREE YEAR OWNERSHIP HISTORY
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
THERE HAS BEEN A CHANGE OF OWNERSHIP OF THE SUBJECT DURING THE PAST THREE
YEARS. THE GENERAL WARRANTY DEED RECORDED AT OFFICIAL RECORD VOLUME 861 PAGE
39 INDICATES THAT THE SUBJECT WAS TRANSFERRED FROM QUANTUM CHEMICAL
CORPORATION TO FIX-CORP INTERNATIONAL, INC. ON DECEMBER 16, 1996. THE
TRANSFER TAX AMOUNT OF $4,200. INDICATES THAT OF THE PURCHASE PRICE FOR REAL
ESTATE, FIXTURES AND EQUIPMENT, $2,100,000. WAS ALLOCATED TO THE SUBJECT REAL
ESTATE.
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
ENVIRONMENTAL ISSUES
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
I KNOW OF NO ENVIRONMENTAL ISSUES THAT WOULD ADVERSELY AFFECT THE VALUE OF
THE SUBJECT. HOWEVER, THE PREVIOUS OWNER OF THE SUBJECT WAS QUANTUM CHEMICAL.
THE CLIENT HAS ORDERED AN ENVIRONMENTAL INSPECTION. I ASSUME THAT THIS REPORT
WILL NOT AFFECT THE ESTIMATED MARKET VALUE.
MID-OHIO APPRAISAL SERVICES CO., LTD
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PAGE 3
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AREA MAP
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
BLACK AND WHITE 60-MILE RADIUS ROAD MAP OF AREA WITH AN ARROW POINTING TO
SUBJECT AREA.
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
MID-OHIO APPRAISAL SERVICES CO., LTD 3A
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
AREA DESCRIPTION AND ECONOMIC DATA
-------------------------------------------------------------------------------
Identification: LICKING COUNTY
----------------------------------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
Population Data Source: NEWARK AREA CHAMBER OF COMMERCE
-------------------------------
-------------------------------------------------------------------------------
Area Year 1990 Year 1995 Total % Chg. Xxx. % Chg. Est. Yr. Total % Chg. Xxx. % Chg.
---- ---- ----
128,300 159,000 23,93 4.38
----- -------- --------- ------------ ------------ ------------ ------------ -----------
----- -------- --------- ------------ ------------ ------------ ------------ -----------
-------------------------------------------------------------------------------
Per Capital Income Data Source: NEWARK AREA CHAMBER OF COMMERCE
-------------------------------
-------------------------------------------------------------------------------
Area Year 1987 Year 1990 Total % Chg. Xxx. % Chg. Est. Yr. 2010 Total % Chg. Xxx. % Chg.
---- ---- ----
10,910 12,864 17,91 5.645
----- -------- --------- ------------ ------------ ------------ ------------ -----------
----- -------- --------- ------------ ------------ ------------ ------------ -----------
-------------------------------------------------------------------------------
New Construction Area Data Source:
-------------------- ------------------------
-------------------------------------------------------------------------------
Building Type Year Square Feet # Permits Year Square Feet # Permits
------------------ ------ ---------------- ---------- ----- ----------------- -----------
------------------ ------ ---------------- ---------- ----- ----------------- -----------
-------------------------------------------------------------------------------
Analysis/Comments:
LICKING COUNTY IS GROWING IN POPULATION AND IN PER CAPITA INCOME.
THERE IS MUCH NEW CONSTRUCTION IN PROGRESS.
THE AUGUST 1995 UNEMPLOYMENT RATE WAS 4.1%.
LABOR MARKET INFORMATION, STATE OF OHIO
-------------------------------------------------------------------------------
Employment Area LICKING COUNTY Date Source: OHIO BUREAU OF EMPLOYMENT SERVICES
--------------- ----------------------------------
----------------------------------------------------------------------------------------------------------
Employment Type Year 1974 % Total Year 1994 % Total Total Change % Change
----- ------
Agricultural 81 .26 711 1.62 630 4.86
---------- ------------ ---------- ------------- ---------------- ----------------
Mining 321 1.04 000 .00 -000 -0.00
---------- ------------ ---------- ------------- ---------------- ----------------
Manufacturing 11,253 36.49 10,482 23.93 -771 -5.94
---------- ------------ ---------- ------------- ---------------- ----------------
Transportation 1,683 5.46 1,478 3.37 -205 -1.58
---------- ------------ ---------- ------------- ---------------- ----------------
Wholesale 747 2.42 1.385 3.16 638 4.92
---------- ------------ ---------- ------------- ---------------- ----------------
Retail 6,110 19.82 10,727 24.49 4,617 35.59
---------- ------------ ---------- ------------- ---------------- ----------------
Fin / Ins / RE 1,351 4.38 2,875 6.56 1,524 11.75
---------- ------------ ---------- ------------- ---------------- ----------------
Services 4,160 13.49 9,990 22.80 5,830 44.94
---------- ------------ ---------- ------------- ---------------- ----------------
GOVERNMENT 5,129 16.63 6,008 13.71 879 6.78
---------- ------------ ---------- ------------- ---------------- ----------------
---------- ------------ ---------- ------------- ---------------- ----------------
Total 30,835 99.99 43,809 99.99 12,974 100.03
----------------------------------------------------------------------------------------------------------
Unemployment Rate % 4.8 %
---------- ----------
----------------------------------------------------------------------------------------------------------
Change in Economic Base: Undersupply Balanced Oversupply
/X/ Unlikely / / Likely / / Taking Place
From: Single Family / / /X/ / /
--------------------------------------- Multifamily / / /X/ / /
To: Office / / /X/ / /
--------------------------------------- Retail / / /X/ / /
Impact on Value: Industrial / / /X/ / /
/ / Positive / / None / / Negative
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
BLACK AND WHITE ENLARGED NEIGHBORHOOD MAP OF SUBJECT AREA AND SURROUNDING
AREAS WITHIN A 20-MILE RADIUS.
05
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
NEIGHBORHOOD DESCRIPTION
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
THE SUBJECT IS LOCATED IN MID-OHIO INDUSTRIAL PARK. TO THE WEST IS THE
RAILROAD TRACK AND VACANT LAND. TO THE SOUTH IS THE QUANTUM CHEMICAL
INDUSTRIAL BUILDING. ACROSS THE STREET IS THE LABEL GRAPHIX INDUSTRIAL
BUILDING. TO THE NORTH IS VACANT LAND WHICH IS AVAILABLE FOR ADDITIONAL
INDUSTRIAL BUILDINGS.
IN THIS INDUSTRIAL PARK THERE ARE SEVERAL INDUSTRIAL BUILDINGS AND
WAREHOUSES. THIS INDUSTRIAL PARK FRONTS ON SR 79. IT IS ABOUT 3 MILES FROM I
70 AND ABOUT 2 MILES FROM US 40. IT IS IN THE SOUTHERN PART OF THE CITY OF
HEATH. THE CITY OF NEWARK IS JUST A FEW MILES NORTH. IT IS THE COUNTY SEAT OF
LICKING COUNTY. THE CITY OF COLUMBUS IS ABOUT 30 MILES WEST. IT IS THE
CAPITAL OF THE STATE OF OHIO. THE COLUMBUS AIRPORT IS ABOUT 25 MILES WEST.
THE NEWARK OHIO INDUSTRIAL PARK IS ABOUT 1 MILE SOUTH OF THE MID-OHIO
INDUSTRIAL PARK.
PAGE 06
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SITE DESCRIPTION
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THE SUBJECT SITE SIZE IS 10 ACRES. IT INCLUDES 0.79 ACRES IN RESERVE "A",
5.504 ACRES IN LOT 40 AND 3.706 ACRES IN LOT 41. THE SITE DIMENSIONS ARE
657.07 X 606.12 X 653.57 X 663.41. THE STREET FRONTAGE IS 657.07. THE LEGAL
DESCRIPTION IS ONE OF THE EXHIBITS. ALSO, SEE THE COUNTY ENGINEER'S MAP
EXHIBIT. THE SITE IS LEVEL AND IS SLIGHTLY ABOVE STREET LEVEL.
OFF SITE IMPROVEMENTS
XXXXX PARKWAY IS PAVED AND IS MAINTAINED BY THE CITY OF HEATH. THE CITY OF
HEATH PROVIDES WATER, SANITARY AND STORM SEWERS. LOCAL UTILITIES PROVIDE
NATURAL GAS AND ELECTRIC POWER. RAIL SERVICE IS AT THE REAR OF THE SITE. SEE
THE SUBJECT PROPERTY PHOTOGRAPHS OF THE RAILROAD SPUR THAT IS USEABLE BY THIS
SITE.
FLOOD ZONE
THE FLOOD MAP #390328-0200B DATED 12/1/83 INDICATES THAT THE SUBJECT IS IN
ZONE C. THE FEDERAL EMERGENCY MANAGEMENT AGENCY HAS MANDATED THAT FEMA FORM
81-93 BE COMPLETED BY THE LENDER FOR EVERY FEDERALLY RELATED LOAN. WE HAVE
ANSWERED THE QUESTIONS CONCERNING FEMA SPECIAL FLOOD HAZARD AREA. THE
ACCURACY OF THIS INFORMATION IS NOT GUARANTEED BY US. WE HAVE NOT COMPLETED
THE FEMA FORM 81-93.
SOIL CONDITION, EASEMENTS AND ENCROACHMENTS
WE DO NOT KNOW OF ANY OF THE ABOVE THAT WOULD ADVERSELY AFFECT THE VALUE OF
THE SUBJECT. WE DO NOT KNOW OF ANY EASEMENTS OR ENCROACHMENTS.
ZONING
THE SUBJECT LAND IS ZONED M-2 HEAVY MANUFACTURING. THE SUBJECT IS LEGALLY
CONFORMING. IT IS NOT LIKELY THAT THE ZONING WILL BE CHANGED.
REAL ESTATE TAXES
THE AMOUNT OF THE 1995 REAL ESTATE TAXES IS $3,348.80. THE SUBJECT IS IN AN
ENTERPRISE ZONE. THERE IS A TAX ABATEMENT FOR THE BUILDING. THE TAX CARD
INDICATES THAT THE TRUE VALUE FOR THE SUBJECT LAND IS $250,000. AND FOR THE
BUILDINGS $2,086,900. FOR A TOTAL TRUE VALUE OF $2,336,900.
RESTRICTIVE COVENANTS
SEE EXHIBIT. IT IS RECORDED IN DEED RECORD 750-363.
PAGE 07
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DESCRIPTION OF IMPROVEMENTS
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SEE THE SUBJECT PROPERTY PHOTOGRAPHS IN THE EXHIBITS. THIS BUILDING WAS
CONSTRUCTED IN 1991. SEE THE SKETCH OF THE IMPROVEMENTS IN THE EXHIBITS. THE
PLANT PORTION OF THE BUILDING HAS A TOTAL SQUARE FOOTAGE OF 48,000. THE
FINISHED OFFICE AREA IS 1,643 SQUARE FEET. THERE IS A CONCRETE SLAB IN THE
REAR WITH A PORTION OF IT COVERED BY A CANOPY. THE CEILING HEIGHT IN THE
PLANT IS ABOUT 22 FEET. THERE IS A PARKING LOT IN FRONT OF THE BUILDING WITH
ABOUT 20 PARKING SPACES. THERE IS A RAILROAD SPUR TO THE SOUTH OF THE
BUILDING. THERE ARE FOUR DOCKING BAYS ON THE SOUTH SIDE OF THE BUILDING AND
TWO ADDITIONAL 12 X 12 OVERHEAD DOORS FOR ACCESS TO THE REAR CANOPY COVERED
AREA.
THE QUALITY OF CONSTRUCTION IS GOOD. THE CONDITION OF THE IMPROVEMENTS IS
GOOD.
THE FIXTURES AND EQUIPMENT ARE NOT INCLUDED IN THIS APPRAISAL.
BUILDING DESCRIPTION
FOUNDATION - CONCRETE
FRAME - METAL & CONCRETE
EXTERIOR WALLS - METAL
ROOF COVER - METAL
PLUMBING - COPPER & GALVANIZED
HEATING - 14 SUSPENDED HEATERS IN PLANT - CFA IN OFFICES
AIR CONDITIONING - OFFICES ONLY
ELECTRICAL - VARIOUS 3 PHASE
ELEVATORS - NONE
PARKING - ASPHALT
INSULATION - ADEQUATE
SPRINKLER - WET SYSTEM
ROOF SUPPORT - METAL TRUSSES
08
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HIGHEST AND BEST USE
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LEGALLY PERMISSIBLE USES - ANY USES PERMITTED IN M-2 HEAVY MANUFACTURING
PHYSICALLY POSSIBLE USES - ANY LEGALLY PERMISSIBLE USES SUBJECT TO SITE AND
IMPROVEMENT SIZES.
FEASIBLE AND MARKETABLE USES - MANUFACTURING
HIGHEST AND BEST USE AS IF THE SITE WERE VACANT - MANUFACTURING & COMMERCIAL
HIGHEST AND BEST USE AS CURRENTLY IMPROVED - MANUFACTURING
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VALUATION METHODS SELECTED
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COST APPROACH, INCOME APPROACH, AND THE SALES COMPARISON APPROACH.
09
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COST APPROACH
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THE PRINCIPLE OF SUBSTITUTION STATES THAT THE PRUDENT BUYER WILL PAY NO MORE
FOR A PARCEL OF REAL PROPERTY THAN THE COST OF ACQUIRING AN EQUALLY DESIRABLE
SUBSTITUTE IN THE OPEN MARKET.
LAND VALUE INDICATION
THE TRUE VALUE OF THE SITE PER THE COUNTY AUDITOR'S APPRAISERS IS $250,000.
OR $25,000. PER ACRE.
IN APRIL 1996 BAYER PURCHASED 11.81 ACRES ON ENTERPRISE DRIVE FOR $531,315.
OR $44,989. PER ACRE. THIS PARCEL IS LOCATED IN THE NEWARK OHIO INDUSTRIAL
PARK WHICH IS ABOUT 1 MILE SOUTH OF MID-OHIO INDUSTRIAL PARK.
IN FEBRUARY 1996 MID-OHIO GOLF PURCHASED 3.7 ACRES AT HEBRON RD AND XXXXX
PARKWAY FOR $127,520. OR $34,465. PER ACRE. THIS MAY BE A BETTER LOCATION
THAN THE SUBJECT. IF WE MAKE A MINUS ADJUSTMENT OF 10% FOR LOCATION THE
INDICATED MARKET VALUE WOULD BE $31,019.
IN MAY 1995 ECOLAB PURCHASED 00 XXXXX XX XXXXXX XXXX FOR $400,000. OR
$40,000. PER ACRE. THIS PARCEL IS LOCATED IN THE NEWARK OHIO INDUSTRIAL PARK.
THE NEWARK OHIO INDUSTRIAL PARK IS A LITTLE CLOSER TO INTERSTATE 70 AND MAY
BE PERCEIVED BY BUYERS TO BE A BETTER LOCATION THAN THE MID-OHIO INDUSTRIAL
PARK.
IN APRIL 1991 FUNN ENTERPRISES PURCHASED 4.33 ACRES ON XXXXX PARKWAY FOR
$100,000. OR $23,095. PER ACRE. IF WE MAKE A PLUS ADJUSTMENT OF 5% PER YEAR
FOR TIME, THE INDICATED MARKET VALUE WOULD BE $30,950. PER ACRE.
IN FEBRUARY 1991 LABEL GRAPHIX PURCHASED 3.95 ACRES ON XXXXX PARKWAY ACROSS
THE STREET FROM THE SUBJECT FOR $89,505. OR $22,659. PER ACRE. IF WE MAKE A
PLUS ADJUSTMENT OF 5% PER YEAR FOR TIME, THE INDICATED MARKET VALUE WOULD BE
$30,365. PER ACRE.
IN MARCH 1990 QUANTUM CHEMICAL PURCHASED 9.26 ACRES ON XXXXX PARKWAY FOR
$200,000. OR $21,598. PER ACRE. IF WE MAKE A PLUS ADJUSTMENT OF 5% PER YEAR
FOR TIME, THE INDICATED MARKET VALUE WOULD BE $30,391, PER ACRE.
IT IS MY OPINION THAT THE ESTIMATED MARKET VALUE OF THE SUBJECT IS $30,000.
PER ACRE FOR A TOTAL ESTIMATED MARKET VALUE OF $300,000.
PAGE 10
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COST APPROACH
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THE PRINCIPLE OF SUBSTITUTION STATES THAT THE PRUDENT BUYER WILL PAY NO MORE
FOR A PARCEL OF REAL PROPERTY THAN THE COST OF ACQUIRING AN EQUALLY DESIRABLE
SUBSTITUTE IN THE OPEN MARKET.
THE COST SOURCE FOR THIS APPRAISAL IS THE XXXXXXXX & SWIFT COMMERCIAL COST
VALUATION SERVICE. REPLACEMENT COST WILL BE USED FOR A BUILDING OF SIMILAR
UTILITY. REPRODUCTION COST IS NOT USED.
CLASS S - AVG 49,643 SF @ 53.79 X 1.02 = $2,723,703.
WET SPRINKLER 49,643 SF @ 1.38 X 1.02 = 69,877.
STEEL CANOPY 7,171 SF @ 19.25 = 138,042.
SITE PREP 56,814 SF @ .16 = 9,090.
CONCRETE 13,990 SF @ 2.50 = 34,975.
ASPHALT PAV 43,000 SF @ 2.00 = 86,000.
MISC 3,500.
TOTAL COSTS $3,065,187.
PHYSICAL DEPRECIATION - 5% $ 153,259.
FUNCTIONAL OBSOLESCENCE - 5% $ 145,596.
DEPRECIATED VALUE OF IMPROVEMENTS $2,766,332.
ESTIMATED MARKET VALUE OF THE LAND $ 300,000.
ESTIMATED MARKET VALUE BY THE COST APPROACH $3,066,332.
ROUNDED $3,000,000.
THE IMPROVEMENTS WERE BUILT ABOUT 1991. THE ACTUAL AGE IS 5 YEARS. THE
IMPROVEMENTS ARE IN GOOD CONDITION. THE EFFECTIVE AGE IS 3 YEARS. THE
ECONOMIC LIFE IS 60 YEARS. THE REMAINING ECONOMIC LIFE IS 57 YEARS. THE
PHYSICAL DEPRECIATION PERCENTAGE IS 5%. NO EXTERNAL OBSOLESCENCE WAS
OBSERVED. BECAUSE A BUYER WOULD LIKELY REMOVE SOME OF THE FIXTURES TO BETTER
UTILIZE THE PLANT A FUNCTIONAL OBSOLESCENCE OF 5% IS TAKEN.
PAGE 11
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INCOME APPROACH
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THE PRINCIPLE OF SUBSTITUTION STATES THAT THE PRUDENT BUYER WILL PAY NO MORE
FOR A PARCEL OF REAL PROPERTY THAN THE COST OF ACQUIRING AN EQUALLY DESIRABLE
SUBSTITUTE IN THE OPEN MARKET. SUBSTITUTION MAY TAKE THE FORM OF THE
ACQUISITION OF AN INVESTMENT WHICH WILL PRODUCE AN INCOME STREAM OF THE SAME
QUANTITY, QUALITY AND DURABILITY AS THAT OF THE SUBJECT PROPERTY.
ADJUSTMENTS FOR THE DIFFERENCE BETWEEN HEAVY MANUFACTURING AND LIGHT
MANUFACTURING IS BASED UPON XXXXXXXX XXXXX COSTS AS OF JUNE 1995. HEAVY
MANUFACTURING CLASS S AVERAGE TYPE COST AS OF JUNE 1995 WAS $53.79. PER
SQUARE FOOT. LIGHT MANUFACTURING CLASS S AVERAGE TYPE COST AS OF JUNE 1995
WAS $23.95. $53.79 IS 225% OF $23.95. I WILL MAKE AN ADJUSTMENT OF 50% OF
THIS 125% INCREASE OR 62.5%.
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RENTAL COMPARABLES
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1. ABOUT 1988 THE XXXXX CORPORATION WAS LEASING A MANUFACTURING BUILDING OF
ABOUT 50,000 SQUARE FEET FOR $3.72 PER SQUARE FOOT. THIS WAS A TRIPLE NET
LEASE. AN ADJUSTMENT OF 3% PER YEAR FOR TIME WOULD INDICATE A RENTAL OF $4.71
PER SQUARE FOOT. THIS BUILDING IS LOCATED AT 0000 XXXXXX XXXX IN THE NEWARK
OHIO INDUSTRIAL PARK. THIS IS THE BEST RENTAL COMPARABLE THAT I HAVE FOUND.
MOST HEAVY MANUFACTURING BUILDINGS ARE NOT RENTED.
2. GENERAL FASTENERS IS RENTING A LIGHT MANUFACTURING BUILDING WITH 20,000
SQUARE FEET FOR $3.50 PER SQUARE FOOT. THIS LEASE IS TRIPLE NET. THIS
BUILDING IS LOCATED AT 000 XXXXXXXX XXXXX XX THE NEWARK OHIO INDUSTRIAL PARK.
THE PLUS ADJUSTED VALUE FOR TYPE OF BUILDING IS 162.5% X $3.50 OR $5.69 PER
SQUARE FOOT. I WILL MAKE A MINUS ADJUSTMENT OF 20% FOR SIZE. THE INDICATED
MARKET RENT FOR THE SUBJECT IS $5.69 X 80% OR $4.55 PER SQUARE FOOT. I WILL
NOT GIVE MUCH WEIGHT TO THIS COMPARABLE BECAUSE OF THE LARGE ADJUSTMENTS.
HOWEVER IT SUPPORTS THE MARKET RENT IN #1 OF $4 .71 PER SQUARE FOOT.
3. XXXXXXXXXXX IS RENTING A LIGHT MANUFACTURING BUILDING WITH 20,000 SQUARE
FEET FOR $3.50 PER SQUARE FOOT. THIS LEASE IS TRIPLE NET. THIS BUILDING IS
LOCATED AT 000 XXXXXXXX XXXXX IN THE NEWARK OHIO INDUSTRIAL PARK. THE PLUS
ADJUSTED VALUE FOR TYPE OF BUILDING IS 162.5% X $3.50 OR $5.69 PER SQUARE
FOOT. I WILL MAKE A MINUS ADJUSTMENT OF 20% FOR SIZE. THE INDICATED MARKET
RENT FOR THE SUBJECT IS $5.69 X 80% OR $4.55 PER SQUARE FOOT. I WILL NOT GIVE
MUCH WEIGHT TO THIS COMPARABLE BECAUSE OF THE LARGE ADJUSTMENTS.
11A
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INCOME APPROACH - CONTINUED
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4. MAIDWARE IS RENTING A LIGHT MANUFACTURING BUILDING WITH 72,000 SQUARE
FEET FOR $3.00 PER SQUARE FOOT. THIS LEASE IS TRIPLE NET. THIS BUILDING IS
LOCATED ON HEBRON ROAD AT 000 X XXXX XXXXXX XX XXX XXXXXX XXXX INDUSTRIAL
PARK. THE PLUS ADJUSTED VALUE FOR TYPE OF BUILDING IS 162.5% X $3.00 OR $4.88
PER SQUARE FOOT.]
THE BUSINESS FIRST RENTAL SUPPLEMENT FOR THE COLUMBUS AREA DATED 2/26/96 DOES
NOT PROVIDE USEFUL DATA CONCERNING RENTAL OF HEAVY MANUFACTURING REAL ESTATE
-------------------------------------------------------------------------------
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RECONCILIATION AND FINAL ESTIMATED MARKET RENT
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THE INDICATED ESTIMATED MARKET RENTS ARE:
1. XXXXX CORPORATION $4.71 PER SQUARE FOOT.
2. GENERAL FASTENERS $4.55 PER SQUARE FOOT.
3. XXXXXXXXXXX $4.55 PER SQUARE FOOT.
4. MAIDWARE $4.88 PER SQUARE FOOT.
#1 IS THE MOST RELIABLE INDICATOR OF THE ESTIMATED MARKET RENT FOR THE
SUBJECT. *4 IS THE NEXT BEST INDICATOR.
IT IS MY OPINION THAT $4.71 IS THE ESTIMATED MARKET RENT FOR THE SUBJECT.
THE INDICATED ESTIMATED MARKET RENT IS $4.71 X 49,643 = $233,819. THIS RENTAL
IS TRIPLE NET. HOWEVER, THE BUILDING AT THE END OF 57 YEARS IS ASSUMED TO
HAVE NO VALUE. A SINKING FUND RESERVE WILL BE PROVIDED FOR $2,000,000. @ 6%
FOR 57 YEARS WHICH WOULD REQUIRE AN ANNUAL DEPOSIT OF $4,495.
THE ESTIMATED NET OPERATING INCOME WOULD BE $233,819. MINUS $4,495. OR
$229,324.
CAPITALIZATION OF NET OPERATING INCOME
ASSUMING AN 80% LOAN AT AN INTEREST RATE OF 9.75% AND THE OWNER REQUIRING A
14% RETURN THE OVERALL CAPITALIZATION RATE WOULD BE 10.6.
INDICATED VALUE BY THE INCOME APPROACH: $229,324. DIVIDED BY 10.6 EQUALS
$2,163,435. I WILL ROUND TO $2,163,000.
PAGE 12
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DIRECT SALES COMPARISON APPROACH
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THE DIRECT SALES COMPARISON APPROACH TO VALUE IS BASED ON THE ECONOMIC
PRINCIPLE OF SUBSTITUTION. THE PRINCIPLE OF SUBSTITUTION STATES THAT THE
PRUDENT BUYER WILL PAY NO MORE FOR A PARCEL OF REAL PROPERTY THAN THE COST OF
ACQUIRING AN EQUALLY DESIRABLE SUBSTITUTE IN THE OPEN MARKET.
SALES SELECTED MUST EITHER BE COMPARABLE TO THE SUBJECT OR THE SALES PRICE OF
THE COMPARABLE MUST BE ADJUSTED FOR DIFFERENCES IN ORDER FOR THE VALUE TO BE
AN INDICATION OF THE VALUE OF THE SUBJECT.
ALL SALES REPORTED BY PACE OF HEAVY AND LIGHT MANUFACTURING REAL ESTATE
LOCATED IN LICKING COUNTY HAVE BEEN CONSIDERED. MOST SUCH SALES ARE OF LIGHT
MANUFACTURING.
XXXXXXXXXXX FOR TIME OF SALE ARE BASED UPON XXXXXXXX XXXXX "DISTRICT
XXXXXXXXXXX COST MULTIPLIERS" FOR THE CENTRAL DISTRICT.
ADJUSTMENTS FOR THE DIFFERENCE BETWEEN HEAVY MANUFACTURING AND LIGHT
MANUFACTURING IS BASED UPON XXXXXXXX XXXXX COSTS AS OF JUNE 1995. HEAVY
MANUFACTURING CLASS S AVERAGE TYPE COST AS OF JUNE 1995 WAS $53.79 PER SQUARE
FOOT. LIGHT MANUFACTURING CLASS S AVERAGE TYPE COST AS OF JUNE 1995 WAS
$23.95. $53.79 IS 225% OF $23.95. I WILL MAKE AN ADJUSTMENT OF 50% OF THIS
125% INCREASE OR 62.5%.
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COMPARABLE SALES
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1. IN JANUARY 1992 XXXXX CORPORATION PURCHASED MANUFACTURING REAL ESTATE
LOCATED AT 0000 XXXXXX XXXX IN THE NEWARK OHIO INDUSTRIAL PARK FOR
$3,972,249. THIS BUILDING HAS 107,956 SQUARE FEET. THE SQUARE FOOT SELLING
PRICE WAS $36.80 PER SQUARE FOOT. THE PLUS ADJUSTED VALUE FOR TIME IS 1.14 X
$36.80 WHICH IS $41.95. THE INDICATED ADJUSTED VALUE PER SQUARE FOOT WOULD BE
$41.95
2. IN SEPTEMBER 1992 ENGLEFIELD'S PURCHASED WAREHOUSE REAL ESTATE LOCATED AT
000 XXXXX XXXXXXX IN THE MID-OHIO INDUSTRIAL PARK FOR $1,241,610. THIS
BUILDING HAS 54,400 SQUARE FEET. THE SELLING PRICE WAS $22.82 PER SQUARE
FOOT. THE PLUS ADJUSTED VALUE FOR TIME IS 1.129 X $22.82 WHICH IS $25.76. THE
PLUS ADJUSTED VALUE FOR TYPE OF BUILDING IS 162.5% X $25.76 WHICH IS $41.86.
I WILL NOT GIVE MUCH WEIGHT TO THIS COMPARABLE BECAUSE OF THE LARGE
ADJUSTMENT FOR TYPE OF BUILDING. HOWEVER, IT SUPPORTS THE VALUE IN #1 OF
$41.95.
12A
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DIRECT SALES COMPARISON APPROACH - CONTINUED
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3. IN OCTOBER 1993 PARRY CORPORATION PURCHASED THE BUCKEYE WELDING BUILDING
LOCATED AT 0000 XXXXX XXXXXXX IN THE MID-OHIO INDUSTRIAL PARK FOR $143,000.
THIS BUILDING HAS 4,557 SQUARE FEET. THE SELLING PRICE WAS $31.38 PER SQUARE
FOOT. THE PLUS ADJUSTED VALUE FOR TIME IS 1.097 X $31.38 WHICH IS $34.42. THE
PLUS ADJUSTED VALUE FOR TYPE OF BUILDING IS 162.5% X $34.42 WHICH IS $55.93.
A MINUS ADJUSTMENT SHOULD BE MADE FOR SIZE. I WILL NOT GIVE MUCH WEIGHT TO
THIS COMPARABLE BECAUSE OF THE LARGE ADJUSTMENTS. HOWEVER, IT SUPPORTS THE
VALUE IN #1 OF $41.95.
4. IN DECEMBER 1995 SUBURBAN STEEL SUPPLY CO. PURCHASED TWO BUILDINGS AND
FIVE STORAGE SHEDS LOCATED AT 000 XXXXXX XX, XXX XXXXXXXX XXXX, XXXXXXXXX,
XXXX FOR $712,690.67. THE SQUARE FOOTAGE OF THE TWO BUILDINGS IS 13,588. THE
SQUARE FOOTAGE OF THE FIVE STORAGE SHEDS IS 9,868. I WILL MAKE A MINUS
ADJUSTMENT OF $98,680. FOR THE STORAGE SHEDS REDUCING THE PURCHASE PRICE TO
$614,010.67. THIS COMPARABLE HAS 16.904 ACRES OF LAND. I WILL MAKE A MINUS
ADJUSTMENT OF $185,382. FOR 13.904 ACRES OF EXCESS LAND AT $13,333. PER ACRE.
THIS LEAVES A PURCHASE PRICE OF $428,628.67. DIVIDED BY 13,588 SQUARE FEET OR
A PURCHASE PRICE OF $31.54 PER SQUARE FOOT. THE PLUS ADJUSTED VALUE FOR TYPE
OF BUILDING IS 162.5% X $31.54 OR $51.25 PER SQUARE FOOT. I WILL NOT GIVE
MUCH WEIGHT TO THIS COMPARABLE BECAUSE OF THE MANY AND LARGE ADJUSTMENTS.
HOWEVER, IT SUPPORTS THE VALUE IN #1 OF $41.95.
5. IN SEPTEMBER 1996 DOERMANS D/B/A EVCO INDUSTRIES PURCHASED TWO BUILDINGS
LOCATED AT 12477 & 00000 XXXXX XX XXXX XX XXXXXXXXX, XXXX FOR $875,000. THE
BUILDING AT 00000 XXXXX XXXXXX, I WILL USE AS A COMPARABLE. I WILL REDUCE THE
PURCHASE PRICE $350,410. WHICH IS THE AMOUNT ALLOCATED BY THE COUNTY AUDITORS
APPRAISERS FOR THE BUILDING AT 00000 XXXXX XXXXXX. THE AMOUNT OF THE PURCHASE
PRICE OF $875,000. ALLOCATED TO THIS COMPARABLE IS $524,590. THIS BUILDING
HAS 14,708 SQUARE FEET. THE ALLOCATED PURCHASE PRICE IS $35.67 PER SQUARE
FOOT. A MINUS ADJUSTMENT IS MADE FOR LOCATION AND LAND VALUE OF $1.35 WHICH
REDUCES THE VALUE TO $34.32 PER SQUARE FOOT. THIS COMPARABLE HAS 2,708 SQUARE
FEET OF FINISHED OFFICE AREA COMPARED TO 1,643 SQUARE FEET FOR THE SUBJECT. I
WILL MAKE A MINUS ADJUSTMENT OF $7.15 PER SQUARE FOOT FOR THIS DIFFERENCE
REDUCING THE ADJUSTED VALUE TO $27.17 PER SQUARE FOOT. THE PLUS ADJUSTED
VALUE FOR THE TYPE OF BUILDING IS 162.5% X $27.17 OR $44.15 PER SQUARE FOOT.
I WILL NOT GIVE MUCH WEIGHT TO THIS COMPARABLE BECAUSE OF THE MANY AND LARGE
ADJUSTMENTS. HOWEVER, IT SUPPORTS THE VALUE IN #1 OF $41.95 PER SQUARE FOOT.
PAGE 13
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RECONCILIATION & FINAL VALUE ESTIMATES
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INDICATED VALUES
BY THE COST APPROACH.......................................... $3,000,000.
BY THE INCOME APPROACH........................................ $2,163,000.
BY THE SALES COMPARISON APPROACH.............................. $2,083,000.
THE INCOME AND THE SALES COMPARISON APPROACHES ARE THE BETTER INDICATORS OF
THE ESTIMATED MARKET VALUE. THE COST APPROACH INDICATOR OF VALUE SUPPORTS
THESE TWO VALUES AND IS AN INDICATOR OF THE UPPER LIMIT OF VALUE.
IN MY OPINION, AS OF DECEMBER 23, 1996 THE ESTIMATED MARKET VALUE OF THE
SUBJECT PROPERTY IS:
[$2,100,000.]
/s/ Xxxxxx X. Xxxxxx 12/30/96
------------------------------------------
XXXXXX X. XXXXXX, MSA, CSI, BCBA, CPA
CERTIFIED GENERAL REAL ESTATE APPRAISER
/s/ Xxxxx X. Xxxxxxx 12/30/96
------------------------------------------
XXXXX X. XXXXXXX
LICENSED RESIDENTIAL REAL ESTATE APPRAISER
MID-OHIO APPRAISAL SERVICES CO., LTD
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Page 14
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PURPOSE OF THE APPRAISAL
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It is to estimate the current market value of the subject property.
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DEFINITION OF MARKET VALUE
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The most probable price which a property should bring in a competitive
and open market under all conditions requisite to a fair sale, the
buyer and seller each acting prudently and knowledgeably and assuming
the price is not affected by undue stimulus. Implicit in this
definition is the consummation of a sale as of a specified date and
the passing of title from seller to buyer under conditions whereby:
(1) buyer and seller are typically motivated; (2) both parties are
well informed or well advised, and each acting in what they consider
their own best interest; (3) a reasonable time is allowed for exposure
in the open market; (4) payment is made in terms of cash in U. S.
Dollars or in terms of financial arrangements comparable thereto; and
(5) the price represents the normal consideration for the property
sold unaffected by special or creative financing or sales concessions*
granted by anyone associated with the sale.
*Adjustments to the comparables must be made for special or creative
financing or sales concessions. No adjustments are necessary for those
costs which are normally paid by sellers as a result of tradition or
law in a market area; these costs are readily identifiable since the
seller pays these costs in virtually all sales transactions. Special
or creative financing adjustments can be made to the comparable
property by comparisons to financing terms offered by a third party
institutional lender that is not already involved in the property or
transaction. Any adjustment should not be calculated on a mechanical
dollar for dollar cost of the financing or concession but the dollar
amount of any adjustments should approximate the market's reaction to
the financing or concessions based on the appraiser's judgment.
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CERTIFICATION
-------------------------------------------------------------------------------
I certify that, to the best of my knowledge and belief:
1. The statements of fact contained in this report are true and correct.
The appraiser has not knowingly withheld any pertinent information.
2. The reported analysis, opinions, and conclusions are limited only by
the reported assumptions and limiting conditions, and are my personal,
unbiased professional analysis, opinions and conclusions.
3. I have no present or prospective interest in the property that is the
subject of this report, and I have no personal interest or bias with
respect to the parties involved.
4. My compensation is not contingent upon the reporting of a predetermined
value or direction in value that favors the cause of the client, the
amount of the value estimate, the attainment of a stipulated result, or
the occurrence of a subsequent event.
5. My analysis, opinions, and conclusions were developed, and this report
has been prepared, in conformity with the Uniform Standards of
Professional Appraisal Practice.
6. I have (or have not) made a personal inspection of the property that is
the subject of this report. (If more than one person signs the report,
this certification must clearly specify which individuals did, and
which individuals did not make a personal inspection of the appraised
property).
7. No one provided significant professional assistance to the person
signing this report. (If there are exceptions, the name of each
individual providing significant professional assistance must be
stated).
8. The 'Estimate of Market Value' in the appraisal report is not based in
whole or in part upon the race, color or national origin of the
prospective owners or occupants of the property appraised or of the
properties in the vicinity of the property appraised.
9. All contingent and limiting conditions are contained herein (imposed by
the terms of the assignment or by the undersigned affecting the
analysis, opinions, and conclusions contained in this report).
10. All conclusions and opinions concerning the real estate that are set
forth in the appraisal report were prepared by the appraiser whose
signature appears on the appraisal report. No change of any item in the
appraisal report shall be made by anyone other than the appraiser, and
the appraiser shall have no responsibility for any such unauthorized
change.
11. This form has not been altered, except for the possible expansion of
the analysis/comments areas.
12. The appraiser has read and understands the instruction manual that
accompanies this form.
13. The appraisal assignment was not based on a requested minimum
valuation, a specific valuation, or the approval of a loan.
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MID-OHIO APPRAISAL SERVICES CO., LTD
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Page 15
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STATEMENT OF CONTINGENT AND LIMITING CONDITIONS
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This appraisal report is subject to the following Assumptions and
Limiting Conditions.
1. The Appraiser assumes no responsibility for matters of a legal nature
affecting the property appraised or the title thereto, nor does the
Appraiser render any opinion as to the title, which is assumed to be
good and marketable. The property is appraised as though under
responsible ownership.
2. Any sketch in the report may show approximate dimensions and is included
to assist the reader in visualizing the property. The Appraiser has made
no survey of the property.
3. The Appraiser is not required to give testimony or appear in court
because of having made the appraisal with reference to the property in
question, unless arrangements have been previously made therefor.
4. Any distribution of the valuation in the report between land and
improvements applies only under the existing program of utilization. The
separate valuations for land and building must not be used in
conjunction with any other appraisal and are invalid if so used.
5. The Appraiser assumes that there are no hidden or unapparent conditions
of the property, subsoil, or structures, which would render it more or
less valuable. The Appraiser assumes no responsibility for such
conditions, or for engineering which might be required to discover such
factors.
6. Information, estimates, and opinions furnished to the Appraiser, and
contained in the report, were obtained from sources considered reliable
and believed to be true and correct. However, no responsibility for
accuracy of such items furnished the Appraiser can be assumed by the
Appraiser.
7. Disclosure of the contents of the appraisal report is governed by the
bylaws and regulations of the professional appraisal organizations with
which the Appraiser is affiliated.
8. Neither all, nor any part of the content of the report, or copy thereof
(including conclusions as to the property value, the identity of the
Appraiser, professional designations, reference to any professional
appraisal organizations, or the firm with which the appraisal is
connected), shall be used for any purposes by anyone but the client
specified in the report, the borrower if appraisal fee paid by same, the
mortgagee or its successors and assigns, mortgage insurers, consultants,
professional appraisal organizations, any state or federally approved
financial institution, any department, agency, or instrumentality of the
united states or any state or the District of Columbia, without the
previous written consent of the Appraiser; nor shall it be conveyed by
anyone to the public through advertising, public relations, news, sales,
or other media, without the written consent and approval of the
Appraiser.
9. On all appraisals, subject to satisfactory completion, repairs, or
alterations, the appraisal report and value conclusion are contingent
upon completion of the improvements in a workmanlike manner.
/ / See Attached
Date DECEMBER 30, 1996 DECEMBER 30, 1996
------------------------------- ---------------------------
Appraiser(S): /s/ Xxxxxx X. Xxxxxx /s/ Xxxxx X. Xxxxxxx
------------------------------- ---------------------------
XXXXXX X. XXXXXX #385247 XXXXX X. XXXXXXX #420879
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
MID-OHIO APPRAISAL SERVICES CO., LTD
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
File No. C612042F
-------------------------------------------------------------------------------
ADDENDUM TO APPRAISAL
-------------------------------------------------------------------------------
APPRAISAL REQUIREMENTS
MANDATED BY FIRREA
I certify that the appraisal conforms to the Uniform Standards of
Professional Appraisal Practice (USPAP) promulgated by the Appraisal
Standards Board of the Appraisal Foundation.
The subject / / (is) /X/ (is not) listed for sale, the listing price is
$ _______________ . My estimate of the reasonable marketing period of
the subject property is 1 to 5 years.
------------
If an approach to value was not used, the following is an explanation
why it was not considered.
Cost:
------------------------------------------------------------------
--------------------------------------------------------------------------
Market:
------------------------------------------------------------------
--------------------------------------------------------------------------
Income:
------------------------------------------------------------------
The appraisal assignment / / (was) /X/ (was not) based on requested
minimum or specific valuation or on the approval of a loan.
I / / (have) /X/ (have no) financial interest in the loan transaction
and do not stand to benefit in any way from the value placed on the
property.
I / / (have) /X/ (have not) included a separate assessment of personal
property, fixtures, or intangible items which are attached to or located
on the real property. These items / / (do) /X/ (do not) affect the
market value of the real property.
Any creative financial or sales concessions that are known to the
appraiser have been adjusted in the comparables of this appraisal.
In performing this appraisal, I was not able to review the:
(insert N/A
if inapplicable)
-----------------------------------------------------------
N/A
-----------------------------------------------------------
The above items should be obtained by the lender when reviewing the
appraisal report.
This appraisal valuation of the subject property is in an "as is"
condition as of the date of inspection.
I certify that i have the appropriate knowledge and experience that was
necessary to complete this assignment.
/s/ Xxxxxx X. Xxxxxx December 30, 1996
-------------------------------- ----------------------------------
XXXXXX X. XXXXXX #385247 DATE
/s/ Xxxxx X. Xxxxxxx
XXXXX X. XXXXXXX #420879 DATE DECEMBER 30, 1996
-------------------------------------------------------------------------------
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SKETCH/AREA TABLE ADDENDUM
File No. C612042F
----------------------------------------------------------------------------
S Property Address 0000 XXXXX XXXXXXX
U ----------------------------------------------------------------------------
B City HEATH State OHIO County LICKING Zip Code 43056
J ----------------------------------------------------------------------------
E Borrower FIX-CORP INTERNATIONAL, INC.
C ----------------------------------------------------------------------------
T Lender/Client PARK NATIONAL BANK-COMMERCIAL
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I
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--------------------------------------------------- ----------------------------
AREA CALCULATIONS SUMMARY LIVING AREA CALCULATIONS
AREA NAME OF AREA SIZE TOTALS BREAKDOWN SUBTOTALS
--------------------------------------------------- ----------------------------
GBA1 Xxxxxxxxxx Xxxx Xxxx 00000.00
Finished Office Area 1643.00 49643.00
DTH Canopy 7171.00
Concrete Slab 6819.00 13990.00
C
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SUBJECT
Our File No. C612042F Page
-------- ----
Client Ref. No.
-----------------
Date 12-23-96
---------------------------
PROPERTY PHOTOGRAPHS
There are 2 colored photographs on the page.
The top photograph is a picture of the front view of the outside of the
subject factory and office taken from the northeast. The building is white
and the section of the building to the front of the photograph is situated in
the middle of the larger potion of building, is two-thirds the height of the
rest of the building and appear to be the office area of the building. There
are at least three windows visible on this portion of the building and a door
with walk way in the middle of this portion of the building. There is a
parking lot in front of the building and there is a dark-colored truck in the
parking lot. The building is sitting in an open field and the photograph was
taken on a cloudy day in central Ohio. In the background are four blue
cylinder shaped buildings which appear to be silos.
The bottom photograph is a picture of the front view of the outside of the
subject factory and office taken from the southeast. There are electrical
boxes along the side of the building. From this view the paved area leading
to the building and parking area can be seen. The photograph was taken on a
cloudy day in central Ohio.
SUBJECT
Our File No. C612042F Page
-------- ----
Client Ref. No.
-----------------
Date
---------------------------
PROPERTY PHOTOGRAPHS
There are 2 colored photographs on the page.
The top photograph is a picture of the rear view of the outside of the
subject factory and office taken from the northwest. The portion of the
building in the forefront of the photograph appears to be approximately
one-third the length of the entire building is an open area with a roof, no
windows and side walls that are one-third the height of the building from the
ground up. The other two-thirds of the building is enclosed and appears to
be sectioned off in at least 6 sections. The building is sitting in an open
field and the photograph was taken on a cloudy day in central Ohio.
The bottom photograph is a picture of the rear view of the outside of the
subject factory and office taken from the southwest. The portion of the
building in the forefront of the photograph appears to be approximately
one-third the length of the entire building is the loading dock area with
four separate garage doors. The is a trash compactor sitting outside the far
left load dock door. To the right of the loading dock area is a walkway that
leads to a door. The other two-thirds of the building is enclosed and
appears to be sectioned off in at least 6 sections. There is a paved area in
front of the building. The photograph was taken on a cloudy day in central
Ohio.
SUBJECT
Our File No. C612042F Page
-------- ----
Client Ref. No.
-----------------
Date 12-23-96
---------------------------
PROPERTY PHOTOGRAPHS
There are 2 colored photographs on the page.
The top photograph is of the outside of the building and shows the ramp
access to the canopy area.
The bottom photograph is of the outside of the building and is a close up
photo of the loading dock. Outside of the loading dock door to the left
there is a trash compactor. In the background on the left side of the
picture part of the canopy area of the building can be seen.
SUBJECT
Our File No. C612042F Page
-------- ----
Client Ref. No.
-----------------
Date 12-23-96
---------------------------
PROPERTY PHOTOGRAPHS
There are 2 colored photographs on the page.
The top photo is a north view of the street scene. To the upper right of the
picture is a portion of the parking area and there are 4 vehicles in the lot.
There is a dark colored truck on the street in the background of the picture.
The rest of the view is open fields and wooded area in the background.
The bottom photo is a south view of the street scene. In the background you
can see 2 buildings on each side of the photo. The building on the right has
cars parked in front of it. There are utility poles seen throughout the
picture and the asphalt is wet and has puddles of water throughout.
SUBJECT
Our File No. C612042F Page
-------- ----
Client Ref. No.
-----------------
Date 12-23-96
---------------------------
PROPERTY PHOTOGRAPHS
There is 1 colored photograph on the page.
This is a photo of the railroad spur. In the upper left of the photograph
there are 4 blue cylinder shaped storage areas. To the right of these
storage areas are 3 railroad cars. In the upper right of the photo is a
building. The rest of the photo is open field, utility poles and trees.
SUBJECT
Our File No. C612042F Page
-------- ----
Client Ref. No.
-----------------
Date 12-23-96
---------------------------
PROPERTY PHOTOGRAPHS
There are 2 colored photographs on the page.
The top photo is of the foyer entry to the office portion of the building.
The foyer has overhead lighting and a sprinkler sytems. One portion of the
wall in the background of the photo is brick. The other portion of the wall
is white. There is a fire alarm box on the wall. The door to the office area
is framed in steel with glass from top to bottom and a horizontal handle
across the middle. The door in the office area is wood. There is a burgundy
chair in the forefront of the photo.
The bottom photo is of the copier room. There is a copier, work table with
paper cutter, white 3-drawer filing cabinet, a white storage cabinet.
SUBJECT
Our File No. C612042F Page
-------- ----
Client Ref. No.
-----------------
Date 12-23-96
---------------------------
PROPERTY PHOTOGRAPHS
There are 2 colored photographs on the page.
The top photo is of the northeast office area. The back office has a wooden
door and a window along the back wall. In the office are 3 duffle bags on
the floor and a chair. The outer office or hall has two cardboard boxes to
the right of the picture a black secretarial chair with arms and a xxxx
office chair with arms. There is a box leaning up against the wall to the
left of the photograph.
The bottom photo is of the south office area. In this photo there are 2
office entrances which can be seen. The office on the right has a window on
the back wall. There is a desk in the office and the office door is
completely opened. The door to the office on the left is slightly closed.
There is a window on the back wall. There is a desk and, xxxx chair with
arms and floor mat in this office. The area outside the offices has a desk
with storage area above it and there if a red chair in the right forefront of
the photo.
SUBJECT
Our File No. C612042F Page
-------- ----
Client Ref. No.
-----------------
Date 12-23-96
---------------------------
PROPERTY PHOTOGRAPHS
There are 2 colored photographs on the page.
The top photo is of the production office and lunch room. The production
office and lunchroom are to the back of the photo and are sealed areas with
large glass windows from which the warehouse can be seen. In the production
office a computer and tack boards can be seen. In the lunchroom a
refrigerator and cabinets can be seen. In the warehouse is a forklift, a
chair, a broom and a 4-wheel dolly.
The bottom photo is of the shipping and receiving area. In this photo There
is a forklift, interior lighting, support poles holding up the roof, 4
overhead bay doors, three ceiling heat units, exit door, trash can, insulated
ceiling and painted concrete floor.
SUBJECT
Our File No. C612042F Page
-------- ----
Client Ref. No.
-----------------
Date 12-23-96
---------------------------
PROPERTY PHOTOGRAPHS
There are 2 colored photographs on the page.
The top photo is the shipping office. There is an interior door to the
shipping office. In the office is a desk, three chairs, an easel, space
heater in the wall near the ceiling, a glass window with a view of the
interior of the building and window with a view of the outside. Outside the
office is a fire pole. The office is finished in concrete block.
The bottom photo is the maintenance machine shop. Along the left wall is
assorted bins filled with equipment. Along, the right wall is machinery,
including band saws and other various machine tools. There are 2 chairs to
the right forefront of the photo. There is overheard fluorescent lighting
and the walls are finished in concrete block and the floor is painted
concrete.
SUBJECT
Our File No. C612042F Page
-------- ----
Client Ref. No.
-----------------
Date 12-23-96
---------------------------
PROPERTY PHOTOGRAPHS
There are 2 colored photographs on the page.
The top photo is the electrical room. Clean concreted floor, concrete block
walls, trash can, numerous panels boxes and electrical lines.
The bottom photo is the boiler room. There is a boiler and boiler system.
The walls and floor are concrete
SUBJECT
Our File No. C612042F Page
-------- ----
Client Ref. No.
-----------------
Date 12-23-96
---------------------------
PROPERTY PHOTOGRAPHS
There are 2 colored photographs on the page.
The top photo is a close-up view of the inside of the production office.
There is a free standing desk with desk calendar and other office supplies on
it. There are two blue chairs in the office. The walls and floor are
concrete. There is a room air conditioner and what appears to be a steel door.
The bottom photo is a close-up view of the inside of the lunch room. There
is a rectangular table in the center of the room with 6 chairs around it.
There is drinking fountain, kitchen cabinets, refrigerator and microwave. In
the left forefront of the photo is a stand with a coffee maker, coffee and
cups on it. The walls and floor are concrete and there is fluorescent
lighting in the ceiling.
SUBJECT
Our File No. C612042F Page
-------- ----
Client Ref. No.
-----------------
Date 12-23-96
---------------------------
PROPERTY PHOTOGRAPHS
There are 2 colored photographs on the page.
The top photo is a west view of the south wall of the inside of the
warehouse. The floors are concrete, insulated ceiling, interior lighting,
machinery, support poles and shipping palets.
The bottom photo is an east view of the south wall of the inside of the
warehouse. The floors are concrete, there are two forklifts, insulated
ceiling, interior lights, support poles, large machinery, and ceiling
heaters.
SUBJECT
Our File No. C612042F Page
-------- ----
Client Ref. No.
-----------------
Date 12-23-96
---------------------------
PROPERTY PHOTOGRAPHS
There are 2 colored photographs on the page.
The top photo is an east view of the north wall of the inside of the
warehouse. In this photo there are concrete floors, rolling steel trash cans,
interior lighting, insulated ceilings, ceiling heaters, shelves with various
equipment on them, stairwell.
The bottom photo is a west view of the north wall of the inside of the
warehouse. In this photo there are concrete floors, interior lighting,
insulated ceilings, various machines and switches.
SUBJECT
Our File No. C612042F Page
-------- ----
Client Ref. No.
-----------------
Date 12-23-96
---------------------------
PROPERTY PHOTOGRAPHS
There are 2 colored photographs on the page.
The top photo is the northwest access to outside canopy area. In this photo
are two overhead bay doors, concrete floors, ceiling heaters, insulated
ceiling, interior lighting, large machinery, steel walls and wall supports.
The bottom photo is a southeast view under the canopy area. In this photo
are two overhead bay doors, a steel entrance door, concrete floors, support
posts, and exterior lighting.
IMPROVED SALES
Our File No. C612042F Page
-------- ----
Client Ref. No.
-----------------
Date
---------------------------
PROPERTY PHOTOGRAPHS
There is 1 colored photograph on the page.
This is a photo of the outside of a one-story office building located at
00000 Xxxxx Xxxxxx, Xxxxxxxxx, Xxxx. In the front of the building is an open
grassy area. To the right of the biulding is an asphalt driveway and parking
area.
IMPROVED SALES
Our File No. C612042F Page
-------- ----
Client Ref. No.
-----------------
Date
---------------------------
PROPERTY PHOTOGRAPHS
There are 2 colored photographs on the page.
The top photo is the outside of an office building located at 0000 Xxxxx
Xxxxxxx.
The bottom photo is the outside of an office building located at 000 Xxxxxx X
Xxxxxxxx Xxxx, Xxxxxxxxx, Xxxx.
IMPROVED SALES
Our File No. C612042F Page
-------- ----
Client Ref. No.
-----------------
Date
---------------------------
PROPERTY PHOTOGRAPHS
There are 2 colored photographs on the page.
The top photo is the outside of an office building located at 0000 Xxxxxx
Xxxx.
The bottom photo is the outside of an office building located at 000 Xxxxx
Xxxxxxx.
IMPROVED SALES
Our File No. C612042F Page
-------- ----
Client Ref. No.
-----------------
Date
---------------------------
PROPERTY PHOTOGRAPHS
There are 2 colored photographs on the page.
The top photo is the outside of an office building located at 199 Xxxxxxxx.
The bottom photo is the outside of an office building located at Xxxxxx Xx,
000 X. Xxxx.
Photocopy of a map with the words "LOCATION MAP" stamped at the top and
bottom of the page and read arrow stamps pointing to various areas to show
the exact location on the map of the subject area and comparison sites.
81928
861-39
QUANTUM
-----------------------------------------------------------------------------
GENERAL WARRANTY DEED
KNOW ALL MEN BY THESE PRESENTS THAT, QUANTUM CHEMICAL CORPORATION, a
Corporation incorporated under the laws of the State of Virginia (the
"Grantor") for the consideration of $10.00 and other valuable considerations,
received to its full satisfaction of FIX-CORP INTERNATIONAL, INC., a
corporation incorporated under the laws of the State of Delaware (the
"Grantee"), does GIVE, GRANT, BARGAIN, SELL AND CONVEY unto the said Grantee,
its successors and assigns, the following described premises, situated in the
City of Heath, County of Licking and State of Ohio:
SITUATED IN THE STATE OF OHIO, COUNTY OF LICKING AND CITY OF HEATH,
AND BOUNDED AND DESCRIBED A: FOLLOWS:
BEING IN T-1, X-00 XX XXX XXXXXX XXXXXX MILITARY LANDS, AND IN THE
MID-OHIO INDUSTRIAL PARK, ADDITION NO. 3, AS RECORDED IN PLAT BOOK
13, PAGE 51, IN THE LICKING COUNTY DEED RECORDS, AND BEING MORE FULLY
BOUNDED AND DESCRIBED AS FOLLOWS:
BEING ALL OF RESERVE "A", XXX 00 XXX XXX XXXXXXXXX XXXXXXX XX XXX 00;
BEGINNING IN THE WESTERLY RIGHT OF WAY LINE OF XXXXX PARKWAY, SAID
POINT BEING THE SOUTHEAST CORNER OF SAID LOT 41;
THENCE SOUTH 89 DEG. 25'37" WEST, ALONG THE SOUTH LINE OF LOT 41,
662.49 FEET TO THE SOUTHWEST CORNER OF LOT 41;
THENCE NORTH 0 DEG. 45'14" WEST, ALONG THE EASTERLY LINE OF THE NEW
YORK CENTRAL RAILWAY COMPANY, 243.50 FEET, TO A POINT;
THENCE SOUTH 89 DEG. 25'37" EAST, PASSING THROUGH LOT 41, A DISTANCE
OF 663.41 FEET TO A POINT;
THENCE SOUTH 0 DEG. 31'52" EAST, PASSING ALONG THE WESTERLY RIGHT OF
WAY LINE OF XXXXX PARKWAY. 243.50 FEET TO THE PLACE OF BEGINNING;
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
THE ABOVE 10.00 ACRE SURVEY INCLUDES 0.79 ACRES IN RESERVE "A", 5.504
ACRES IN XXX 00 XXX 0.000 XXXXX XX XXX 00.
THE ABOVE DESCRIPTION WAS PREPARED AS THE RESULT OF A SURVEY BY
XXXXXXX X. XXXXXXXXX, REGISTERED SURVEYOR NO. 5242, DATED JULY 6,1989.
BEING PART OF THE SAME REAL ESTATE CONVEYED BY XXXXXXX X XXXXXX, XX.
AND XXXXXXXX X. XXXXXX, HIS WIFE, TO MID-OHIO DEVELOPMENT CORPORATION
BY DEED DATED DECEMBER 3, 1971, AND RECORDED IN VOLUME 681, PAGE 608,
DEED RECORDS, LICKING COUNTY, OHIO.
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
be the same more or less.
----------------------------
DESCRIPTION APPROVED
XXX XXXXX
1 OF 3 LICKING COUNTY ENGINEER
----------------------------
Tax Map Approved by:
Drawing No
7 /s/ AF
----------------------------
81928
861-39
QUANTUM
-----------------------------------------------------------------
To have and to hold the above granted and bargained premises, with the
appurtenances thereunto belonging, unto the said grantee, its successors and
assigns forever.
The grantor, does for itself and its successors and assigns, covenant with
the Grantee its successors and assigns, that at and until the ensealing of
these presents, it is well seized of the above described premises, as a good
and indefeasible estate in FEE SIMPLE and has good right to bargain and sell
the same in manner and form as above written, and that the same are free and
clear from all incumbrances whatsoever and that it will Warrant and Defend
said premises, with the appurtenances thereunto belonging, to the said
Grantee, its successors and assigns, forever, against all lawful claims and
demands whatsoever.
IN WITNESS WHEREOF, said corporation sets its hand and corporate seal, by
Xxxxxx X. Xxxxx , its President , this 16 day of
---------------------------- -------------------- ---------
December, 1996.
--------------
Signed and acknowledged in presence of: QUANTUM CHEMICAL CORPORATION
/s/ illegible By: /s/ Xxxxxx X. Xxxxx
------------------------------------------ ----------------------------
/s/ illegible Xxxxxx X. Xxxxx
------------------------------------------ ----------------------------
Typed Name
President
----------------------------
Title
TRANSFERRED
[SEAL
QUANTUM CHEMICAL CORPORATION] Date December 16, 1996
/s/ Xxxxxx X. Xxxxxxxx, as
--------------------------------
Licking County Auditor
SEC 3.9.202 COMPLIED WITH
XXXXXX X. XXXXXXXX, AUDITOR
BY /s/ as 4200.00 /s/ as
------------------------
2 OF 3
750/363
61751
MID-OHIO INDUSTRIAL PARK ADDITION NO. 3
RESTRICTIVE COVENANTS
---------------------
1. These building and other restrictive covenants shall run with the
land and shall be binding on all parties and all persons claiming under them
until the year A. D. 2020.
2. Said real estate shall be used exclusively for all types of
commercial and industrial activity except those considered dangerous or
unsafe as to other property in the addition, or violative of applicable
federal or state standards regarding odor, dust, fumes, smoke or noise, as to
other property in the addition.
3. All buildings and other structures erected in the additions shall be
of substantial construction and design and comply with all existing building
codes.
4. No building or structure shall be erected, placed or suffered to
remain in said additions until the plans and specifications hereof and the
location thereof have been approved in writing by Xxxxxxx X. Xxxxxx, Xx., as
long as he shall live and retain his mental competency, or by his assignee.
If Xxxxxxx X. Xxxxxx, Xx. becomes mentally incompetent or dies, such approval
shall be obtained in writing from a majority of the owners of the Mid-Ohio
Industrial Park Additions Nos. 1, 2 and 3, unless the right to approve plans
has been previously assigned.
5. No building or structure shall be erected on any of said real
estate closer than 50 feet to the front lot line on Xxxxx Parkway and closer
than 20 feet to the front lot line of any other street and to the side or
rear lines of any lot.
6. No building or structure on said real estate shall be allowed to
occupy more than fifty percent of the land in said lot. The term structure
is not intended to include parking lot areas.
7. No fences, masonry wall, hedge or mass planting shall be permitted
to extend beyond the building setback lines of said additions, except upon
written approval of Xxxxxxx X. Xxxxxx, Xx., as long as he shall live and
retain his mental competency, or by his assignee. If Xxxxxxx X. Xxxxxx, Xx.
becomes mentally incompetent or dies, such approval shall be obtained in
writing from a majority of the owners of the Mid-Ohio Industrial Park
Additions Nos. 1, 2 and 3, unless the right to approve plans has been
previously assigned.
8. All parking and loading areas shall be provided on each lot in
said additions and must be of a dust free surface. No loading docks may be
placed on Xxxxx Parkway. Provision for handling all freight either by
railroad or truck shall be on those sides of any buildings which do not face
on Xxxxx Parkway.
9. The owner of said real estate shall provide off-street parking
facilities for all employees and visitors. Sufficient parking facilities
shall be provided at a minimum rate of one parking space for each two
employees who are employed by the owner of said real estate at this site.
364
364
61751
10. All outside storage shall be confined to the rear of the building
site and protected by screening. Outside storage refers to materials stored
in the open.
11. Where the owner of two or more adjacent lots or tracts uses two
or more of such lots or tracts for a single purpose, the front, side and rear
setback requirements and restrictions set forth in said restrictive covenants
shall apply to such lots or tracts as though said two or more adjacent lots
or tracts were a single lot or tract.
12. Further, where the owner of two or more adjacent lots or tracts
uses two or more of said lots or tracts for a single purpose, the easement
reserved for utility purposes in the dedication along the common line or
lines of said adjacent lots or tracts shall not be reserved but shall be
conveyed to said lot or tract owner.
Recorder's Office, Licking Co. Ohio
Received July 30, 1976
at 11:00 o'clock A.M.
In Vol 750 of Deeds
Page 363
--------------------
/s/ Xxxxxx X. Xxxx
------------------------------------
Xxxxxx X. XXXX, Recorder
Fee $19.20
See Plat
recorded Vol. 13
Pages 51 & 52
Photocopy of the engineers map showing the subject lot and parcel along with
surrounding lots and parcels.
24
----------------------------
----------------------------
APPRAISER DISCLOSURE
STATEMENT
----------------------------
----------------------------
In compliance with Ohio Revised Code Section 4763.12 (C)
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
1. Name of Appraiser: Xxxxxx X. Xxxxxx
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
2. Class of Certification Licensure:
X Certified General
------
Certified Residential
------
Licensed Residential
------
Temporary General Licensed
------ ------ ------
Certification/Licensure Number: 385247
-----------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
3. Scope: this report X is within the scope of my certification/license
-----
is not within the scope of my certification/license
-----
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
4. Service provided by: X disinterested & unbiased third party
-----
interested & biased third party
-----
interested third party on contingent fee basis
-----
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
5. Signature of person preparing and reporting the appraisal
/s/ Xxxxxx X. Xxxxxx
-----------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
THIS FORM MUST BE INCLUDED IN CONJUNCTION WITH ALL APPRAISAL ASSIGNMENTS OR
SPECIALIZED SERVICES PERFORMED BY A STATE-CERTIFIED OR STATE-LICENSED REAL
ESTATE APPRAISER.
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
State of Ohio
Department of Commerce
Division of Real Estate
Appraiser Section
Cleveland OH
(000)000-0000
24A
----------------------------
----------------------------
APPRAISER DISCLOSURE
STATEMENT
----------------------------
----------------------------
In compliance with Ohio Revised Code Section 4763.12 (C)
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
1. Name of Appraiser: Xxxxxx X. Xxxxxx
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
2. Class of Certification Licensure:
Certified General
------
Certified Residential
------
X Licensed Residential
------
Temporary General Licensed
------ ------ ------
Certification/Licensure Number: 385247
-----------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
3. Scope: this report is within the scope of my certification/license
-----
X is not within the scope of my certification/license
-----
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
4. Service provided by: X disinterested & unbiased third party
-----
interested & biased third party
-----
interested third party on contingent fee basis
-----
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
5. Signature of person preparing and reporting the appraisal
/s/ Xxxxx X. Xxxxxxx
-----------------------------------------
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
THIS FORM MUST BE INCLUDED IN CONJUNCTION WITH ALL APPRAISAL ASSIGNMENTS OR
SPECIALIZED SERVICES PERFORMED BY A STATE-CERTIFIED OR STATE-LICENSED REAL
ESTATE APPRAISER.
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
State of Ohio
Department of Commerce
Division of Real Estate
Appraiser Section
Cleveland OH
(000)000-0000
25
QUALIFICATIONS OF APPRAISER - XXXXXX X XXXXXX
-------------------------------------------------------------------------------
-------------------------------------------------------------------------------
STATE CERTIFIED GENERAL REAL ESTATE APPRAISER #385247-EXPIRES 12/19/97
STATE LICENSED REAL ESTATE BROKER - #266512
APPRAISAL EDUCATION
12/85 - Real Estate Appraisal - Central Ohio Technical College
7/86 - Location & Market Analysis - Commercial Inv R E Institute
2/89 - Principles of R. E. Appraisal - Lincoln Graduate Center
3/89 - Practice of R. E. Appraisal - Lincoln Graduate Center
3/89 - Narrative Appraisal Report - Lincoln Graduate Center
3/89 - Farm And Land Appraisal - Lincoln Graduate Center
3/89 - Commercial Investment Appraisal - Lincoln Graduate Center
3/89 - Advanced Commercial Appraisal - Lincoln Graduate Center
10/90 - Effective Court Testimony - Lincoln Graduate Center
12/91 - Residential Appraisal Review - Ohio Assoc. of Realtors
12/91 - Commercial Appraisal Review - Ohio Assoc. of Realtors
2/93 - Manufactured Housing Appraisals - Lincoln Graduate Center
10/93 - Residential Construction - Ohio Association of Realtors
12/93 - Americans With Disabilities Act - Lincoln Graduate Center
1/94 - New URAR - Ohio Association of Realtors
10/94 - Property Inspection - Lincoln Graduate Center
1/95 - Small Investment Properties - Ohio Assoc of Realtors
1/95 - Evaluation Reports - Ohio Assoc of Realtors
2/95 - How To Appraise FHA Property - Appraisal Institute
4/95 - Commercial Secondary Market Securitization - OAR
5/95 - Electronic Data Interchange - OAR
5/95 - Business Appraisals - Lincoln Graduate Center
5/96 - Property Inspection - Lincoln Graduate Center
8/96 - HUD 203 (K) - M A Young & Co
PROFESSIONAL MEMBERSHIP
National Association of Master Appraisers - #6267
National Association of Realtors - Appraisal Section
Ohio Association of Realtors
Licking County Board of Realtors
National Association of Property Inspectors - #934
PROFESSIONAL DESIGNATIONS
MSA - Master Senior Appraiser - 1989
MFLA- Master Farm & Land Appraiser - 1989
MRA - Master Residential Appraiser - 1989
CPA - Certified Public Accountant - 1950
BCBA- Board Certified In Business Appraisals - 1994
CSI - Certified Senior Inspector - 1996
The foregoing is true to the best of my knowledge and belief
/s/ Xxxxxx X. Xxxxxx
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25A
QUALIFICATIONS OF APPRAISER - XXXXX X XXXXXXX
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STATE LICENSED RESIDENTIAL REAL ESTATE APPRAISER - #420879
EXPIRES - 07/01/97
COMMERCIAL APPRAISER APPRENTICE
APPRAISAL EDUCATION
8/94 - Permitted Departures From Specific Guidelines of USPAP-Ohio Assoc of
Realtors
8/94 - The Basics of Appraisal - Ohio Assoc of Realtors
9/94 - Real Estate Analysis - Ohio Assoc of Realtors
10/94 - Sales Comparison Approach - Ohio Assoc of Realtors
9/95 - Cost & Income Approaches/Valuation of Partial Interest - Ohio Assoc of
Realtors
10/95 - Appraisal Standards & Ethics - Ohio Assoc of Realtors
EMPLOYMENT HISTORY
7/95 To Date - Mid-Ohio Appraisal Services Co., LTD
3/94 - 6/95 - Xxxxx X Xxxxx & Associates, Inc.
11/81 - 8/93 - Webcraft Technologies, Inc.
6/76 - 11/81 - Communicolor Division of Standard Register
The foregoing is true to the best of my knowledge and belief
/s/ Xxxxx X. Xxxxxxx
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Exhibit F to Exhibit 8
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SCHEDULE 1.01A
DESCRIPTION OF REAL PROPERTY
A single parcel situated in the State of Ohio, County of Licking and City of
Heath of 9.5 acres more or less being more fully bounded and described as
follows:
BEING IN T-1, X-00 XX XXX XXXXXX XXXXXX MILITARY LANDS, AND IN THE
MID-OHIO INDUSTRIAL PARK, ADDITION NO. 3, AS RECORDED IN PLAT BOOK
13, PAGE 51, IN THE LICKING COUNTY DEED RECORDS, AND BEING MORE FULLY
BOUNDED AND DESCRIBED AS FOLLOWS:
BEING ALL OF RESERVE "A", XXX 00 XXX XXX XXXXXXXXX XXXXXXX XX XXX 00;
BEGINNING IN THE WESTERLY RIGHT OF WAY LINE OF XXXXX PARKWAY, SAID
POINT BEING THE SOUTHEAST CORNER OF SAID LOT 41;
THENCE SOUTH 89 DEG. 25'37" WEST, ALONG THE SOUTH LINE OF LOT 41,
662.49 FEET TO THE SOUTHWEST CORNER LOT 41;
THENCE NORTH 0 DEG. 45'14" WEST, ALONG THE EASTERLY LINE OF THE NEW
YORK CENTRAL RAILWAY COMPANY, 243.50 FEET, TO A POINT;
THENCE SOUTH 89 DEG. 25'37" EAST, PASSING THROUGH LOT 41, A DISTANCE
OF 663.41 FEET TO A POINT;
THENCE SOUTH 0 DEG. 31'52" EAST, PASSING ALONG THE WESTERLY RIGHT OF
WAY LINE OF XXXXX PARKWAY, 243.50 FEET TO THE PLACE OF BEGINNING;
THE ABOVE 10.00 ACRE SURVEY INCLUDES 0.79 ACRES IN RESERVE "A", 5.504
ACRES IN XXX 00 XXX 0.000 XXXXX XX XXX 00.
SUBJECT TO ALL LEGAL HIGHWAYS, ALL LIMITATIONS OF ACCESS TO PUBLIC
ROADS OR HIGHWAYS, LEASES AND RIGHTS OF WAY, ZONING REGULATIONS,
EASEMENTS OF RECORD AND RESTRICTIVE COVENANTS.
THE ABOVE DESCRIPTION WAS PREPARED AS THE RESULT OF A SURVEY BY
XXXXXXX X. XXXXXXXXX, REGISTERED SURVEYOR NO. 5242, DATED JULY 6,
1989.
BEING PART OF THE SAME REAL ESTATE CONVEYED BY XXXXXXX X. XXXXXX, XX.
AND XXXXXXXX X. XXXXXX, HIS WIFE, TO MID-OHIO DEVELOPMENT CORPORATION
BY DEED DATED DECEMBER 3, 1971, AND RECORDED IN VOLUME 681, PAGE 608,
DEED RECORDS, LICKING COUNTY, OHIO.
THIS PROPERTY IS SUBJECT TO THE RESTRICTIVE COVENANTS FOR MID-OHIO
INDUSTRIAL PARK ADDITION NO. 3, FILED FOR RECORD WITH THE LICKING
COUNTY RECORDER ON JULY 30, 1976, IN VOLUME 750, PAGE 363, DEED
RECORDS, LICKING COUNTY, OHIO.
Exhibit G to Exhibit 8
Contracts, Agreements, and Instruments and Arrangements
None.
