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EXHIBIT 4.21
MORTGAGE AGREEMENT
MORTGAGE AGREEMENT, dated as of January 21, 1997, between Striker
Holdings, Inc., a corporation duly organized and validly existing under the
laws of the State of Texas, with an address at Xxx Xxxxxxxx, Xxxxx 0000,
Xxxxxxx, XX 00000 (the "Company"), and BlueStone Capital Partners, L.P., a New
York limited partnership, with an address at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Agent (the "Mortgagee"), as agent for the holders (the "Holders")
of the Original Issue Discount Promissory Notes (the "Notes") issued by Striker
Industries, Inc. ("Striker") and guaranteed by the Company. Terms used not
otherwise defined herein shall have the meanings ascribed to them in the Notes.
WHEREAS, the Company has guaranteed all of Striker's obligations (the
"Obligations") under the Notes issued by Striker to the Holders;
WHEREAS, it is an event of default under the Notes if the Company does
not grant this mortgage to Mortgagee; and
WHEREAS, Finova Capital Corporation ("Finova") has recorded a mortgage
and security Agreement dated as of April 25, 1995 with respect to the
Collateral (hereinafter defined),
NOW, THEREFORE, THIS MORTGAGE WITNESSETH that the, Company, in
consideration of the premises and of the sum of Ten Dollars ($10.00) received
by the Company from the Mortgagee and other good and valuable consideration,
receipt whereof is hereby acknowledged, and in order to secure the payment of
the Obligations, the Company does hereby warrant, mortgage, pledge, assign,
bargain, hypothecate, convey, grant, transfer, and set over unto the Mortgagee
and its successors and assigns, all of its estate, right, title and interest in
and to all and singular the following described properties, rights, interest
and privileges and all of the Company's estate, right, title and interest
therein, thereto and thereunder, if any (all of which properties hereby
mortgaged, assigned, pledged are hereinafter collectively referred to as the
"Collateral"):
GRANTING CLAUSES
1. REAL PROPERTY
The parcels of land in Ouachita County, State of Arkansas described in
Annex A attached hereto and made a part hereof, together with the entire
interest of the Company in and to all buildings, structures, improvements and
appurtenances now standing, or at any time hereafter construed or placed, upon
such land, including all right, title and interest of the Company, if any, in
and to all building material, building equipment and fixtures of every kind and
nature
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whatsoever on said land or in any building, structure or improvement now or
hereafter standing on said land which are classified as fixtures under
applicable law and which are, used in connection with the operation, maintenance
or protection of said buildings, structures and improvements as such (including,
without limitation, all air conditioning, ventilating, plumbing, heating,
lighting and electrical systems and apparatus, all communications equipment and
intercom systems and apparatus, all sprinkler equipment and apparatus and all
elevators and escalators) and the reversion or reversions, remainder or
remainders, in and to said land, and together with the entire interest of the
Company in and to all and singular the tenements, hereditaments, easements,
rights of way, rights, privileges and appurtenances to said land, belonging or
in anywise appertaining thereto, including, without limitation, the entire
right, title and interest of the Company in, to and under any xxxxxxx, xxxx,
xxxxxx, xxxxx or strips of land adjoining said land, and all claims or demands
whatsoever of the Company either in law or in equity, in possession or
expectancy, of, in and to said land, it being the intention of the parties
hereto that, so far as may be permitted by law, all property of the character
hereinabove described, which is now owned or is hereafter acquired by the
Company and is affixed or attached or annexed to said land, shall be and remain
or become and constitute a portion of said land and the, security covered by and
subject to the Lien of this Mortgage, together with all accessions, parts and
appurtenances appertaining or attached thereto and all substitutions, renewals
or replacements of and additions, improvements, accessions and accumulations to
any and all thereof, and together with all rents and the present and continuing
right to make claim for, collect, receive and receipt for any and all of such
rents (all of which properties are hereinafter referred to as the "Real
Property").
II. TRADE PROPERTY
All materials, furniture, furnishings, machinery, goods, fixtures,
equipment to be erected or located on the Real Property and including, but not
limited to, all heating, plumbing, lighting, water heating, cooking, laundry,
refrigerating, incinerating, communications, ventilating and air conditioning
equipment, disposals, dishwashers, recreational, lawn maintenance equipment,
sprinkler systems, fire extinguishing apparatus and equipment, water tanks,
engines, machines, boilers, dynamos, stokers, elevators, motors, cabinets,
shades, blinds, partitions, window screens, screen doors, storm windows,
awnings, drapes, rugs, and other floor coverings, furniture, furnishings,
radios and television sets and wiring and antennae therefor, and all fixtures,
accessions and appurtenances thereto, and all renewals or replacements of or
substitutions for any of the foregoing, together with all other goods,
equipment, furnishings, fixtures, machinery and furniture owned by the Company
now or hereafter attached or affixed to or used in and about the building or
buildings now erected or hereafter to be erected on the Real Property, or
otherwise located on the Real Property and all fixtures, accessions and
appurtenances thereto, and all renewals or replacements of or substitutions for
any of the, foregoing (all of which properties are hereinafter referred to as
"Trade Property").
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III. CONDEMNATION AWARDS AND PAYMENTS
All judgments, awards of damages, settlements and other compensation
heretofore or hereafter made resulting from condemnation proceedings or the
taking of the Real Property or any part thereof or any improvements now or at
any time hereafter located thereon or any easement or other appurtenances
thereto under the power of eminent domain, or any similar power or right
(including any award from the United States Government at any time after the
allowance of the claim therefor, the ascertainment of the amount thereof and
the issuance of the warrant for the payment thereof whether permanent or
temporary, or for any damage (whether caused by such taking or otherwise) to
said Real Property or any part thereof or the improvements thereon or any part
thereof, or to any rights appurtenant thereto, including severance and
consequential damage, and any award for change of grade of streets
(collectively, "Condemnation Awards").
IV. PROCEEDS
All proceeds of the conversion, voluntary or involuntary, of any of the
foregoing into cash or other liquidated claims, including, without litigation,
all proceeds and payments of insurance, related to the Collateral.
SUBJECT, in all respects, to the Permitted Liens.
TO HAVE AND TO HOLD the Collateral unto the Mortgagee and its successors
and assigns forever for the purpose of securing payment of the Obligations when
due. It is understood and agreed that this Mortgage is to secure all sums due
or to become due in respect to the Obligations guaranteed by the Company. THIS
CONVEYANCE SHALL ALSO STAND AS SECURITY FOR ALL FUTURE ADVANCES AND ANY
ADDITIONAL INDEBTEDNESS OF STRIKER OR THE COMPANY TO MORTGAGEE, WHETHER IT BE
INCURRED FOR ANY BUSINESS OR NON-BUSINESS PURPOSE THAT WAS RELATED, WHOLLY
UNRELATED, SIMILAR OR DISSIMILAR TO THE PURPOSE OF THE ORIGINAL OBLIGATIONS
AND/OR THE GUARANTEE THEREOF BY THE COMPANY.
PROVIDED NEVERTHELESS, and these presents are upon the express
condition that if all Obligations are paid in full, the estate, right and
interest of the Mortgagee in the property hereby conveyed and granted a
perfected security interest in shall cease and this Mortgage shall become null
and void, but otherwise to remain in full force and effect.
It is agreed and understood by the parties hereto that:
1. The Company for itself and all who may claim through or
under it waives to the extent permitted by law any and all right to have the
property and estates comprising the Collateral or any other property of the
Company constituting security for the Obligations.
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marshalled upon any foreclosure of the Lien hereof, or to have the Collateral
hereunder and the property covered by any other mortgage or deed of trust
securing the Obligations marshalled upon any foreclosure of any of said
mortgages or deeds of trust, and agrees that any court having jurisdiction to
foreclosure such Lien may order the Collateral sold as an entirety.
2. Upon the occurrence and during the continuance of any Event
of Default hereunder the Mortgagee has, among other things, the right to
foreclose on the Collateral and dispose of the same. The Mortgagee's deed (if
permitted by law) or Sheriff's deed or other instrument of conveyance, transfer
or release (which, if permitted by law, may be executed by the Mortgagee in its
own name or as attorney-in-fact for the Company and the Mortgagee is hereby
irrevocably appointed attorney-in-fact for the Company to, in the event that an
Event of Default shall have occurred and be continuing, so execute such deed or
other instruments of conveyance, transfer or release) shall be effective to
convey and transfer to the grantee an indefeasible title to the property
covered thereby, discharged of all rights of redemption (to the extent
permitted by law) by the Company or any person claiming under it, and to bar
forever all claims by the Company or the Mortgagee to the property covered
thereby and no grantee from the Mortgagee or Sheriff shall be under any duty to
inquire as to the authority of the Mortgagee or Sheriff to execute the same, or
to see to the application of the purchase money.
3. The Company and Mortgagee acknowledge and agree that the
Lien created hereby shall be subordinate to the lien in favor of Finova and
that this mortgage is intended to be a second mortgage junior in priority to
that of Finova which lien is sometimes referred to herein as the "Permitted
Liens".
SECTION 1. DEFAULTS AND REMEDIES THEREFOR.
Section 1.1 Events of Default. The Company acknowledges and agrees,
without limitation, that each and all of the terms and provisions of the Notes
and of each other instrument guaranteeing or securing payment thereof,
including, without limitation, the Guarantee and Security Agreement, have been
and are incorporated into this Mortgage by reference to the same extent as
though fully set out herein and that the term Event of Default wherever used in
this Mortgage shall include an Event of Default as defined in any such
document.
Section 1.2. Remedies. When any Event of Default has occurred and is
continuing, the Mortgagee may exercise any one or more or all, and in any
order, or the remedies now or hereafter set forth in any of the documents
referred to in Section 1.1 hereof, it being understood, however, that none of
such remedies is intended to be exclusive of any other remedy or remedies, but
each and all thereof are cumulative and shall be in addition to every other
remedy now or hereafter available to Mortgagee at law or in equity or by
statute.
Section 1.3. Waiver of Extension, Appraisement and Stay Laws. The
Company covenants that, upon the occurrence and the continuance of an Event of
Default and to the extent that such rights may then be lawfully waived, it will
not at any time thereafter insist upon or
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plead, or in any manner whatever claim or take any benefit or advantage of, any
stay or extension law both statutory and common law, now or at any time
hereafter in force, or claim, take or insist upon any benefit or advantage of or
from any law both statutory and common law, now or hereafter, in force
providing for the valuation or appraisement of the Collateral or any part
thereof prior to any sale or sales thereof to be made pursuant to any provision
herein contained, or to the decree, judgement or order of any court of competent
jurisdiction or, after confirmation of any such sale or sales claim or exercise
any right under common law or any statute now or hereafter made, or enacted by
any state or otherwise to redeem the property so sold or any part thereof, and
hereby expressly waives for itself and on behalf of each and every person who
may claim under it, all benefit and advantage to any such law or laws both
statutory and common law, which would otherwise be available to any such Person
in connection with the enforcement of any of the Mortgagee's remedies hereunder;
and covenants that it will not in connection with any such enforcement
proceedings invoke or utilize any such law or laws or otherwise hinder, delay or
impede the execution of any power herein granted and delegated to the Mortgagee
but will suffer and permit the execution of every such power as though no such
law or laws had been made, enacted or existed. The foregoing waivers as well as
the waivers hereinafter set forth in this Section 1.3 shall particularly include
but not be limited to all of the Company's rights of appraisement and redemption
under the Act of the General Assembly of the State of Arkansas approved May 8,
1899, and all the rights under the Act of the General Assembly of the State of
Arkansas entitled "An Act to Regulate the Foreclosure of Mortgages", approved
February 9, 1933.
The Company hereby waives any and all rights of redemption from sale
under any order or decree of foreclosure pursuant to rights herein granted, on
behalf of the Company, and each and every Person acquiring any interest in, or
title, to the Collateral described herein subsequent to the date of this
Mortgage, and on behalf of all other Persons to the extent permitted by
applicable law.
Any sale, whether under any power of sale hereby given or by virtue of
judicial proceedings, shall operate to divest all right, title, interest, claim
and demand whatsoever, either a law or in equity, of the Company in and to the
property sold and shall be perpetual bar, both at law and in equity, against
the Company, its successors and assigns, and against any and all Persons
claiming the property sold or any part thereof under, by or through the
Company, its successors or assigns.
Section 1.4 Effect of Discontinuance of Proceedings. In case the
Mortgagee shall have proceeded to enforce any right under the Mortgage by
foreclosure, sale, entry or otherwise, and such proceedings shall have been
discontinued through written notice to the Company by the Mortgagee or shall
have been determined adversely, then and in every such case the Company and the
Mortgagee shall be restored to its position and rights hereunder as they existed
immediately prior to the commencement of such proceedings with respect to the
property subject to the Lien and security interest of this Mortgage.
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Section 1.5 Delay of Omission Not a Waiver. No delay, failure, or
omission of the Mortgagee to exercise any right or power arising from any Event
of Default on the part of the Company shall exhaust or impair any such right or
power or prevent its exercise during the continuance of such Event of Default.
No waiver by the Mortgagee of any such Event of Default, whether such waiver be
full or partial, shall extend to or be taken to affect any subsequent Event of
Default or to impair the rights resulting therefrom, except as may be otherwise
provided herein. No right, power or remedy hereunder, is intended to be
exclusive of any other right, power or remedy but each and every right, power or
remedy shall be cumulative and in addition to any and every other right, power
or remedy given hereunder or otherwise existing. Nor shall the giving, taking or
enforcement of any other or additional security, collateral or guaranty for the
payment of the indebtedness secured under this Mortgage operate to prejudice,
waive or affect the security of this Mortgage, or any rights, powers or remedies
hereunder; nor shall the Mortgagee be required to first look to, enforce or
exhaust such other or additional security, collateral or guaranties.
Section 1.6 Costs and Expenses of Foreclosure. In any suit to foreclose
the Lien created hereby, there shall be allowed and included as additional
Obligations in the decree for sale the expenditures and expenses which may be
paid or incurred by or on behalf of the Mortgagee for reasonable attorney's
fees, reasonable appraiser's fees, outlays for documentary and expert evidence,
stenographic charges, publication costs and costs (which may be estimated as the
items to be expended after the entry of the decree) of procuring all such
abstracts of title, title searches and examination, guarantee policies, and
similar data and assurances with respect to title as the Mortgagee may deem to
be reasonably necessary either to prosecute any foreclosure action or to
evidence to the bidder at any sale pursuant thereto the true condition of the
title to or the value of the Collateral.
SECTION 2. MISCELLANEOUS:
Section 2.1. Successors and Assigns. Whenever any of the parties hereto
is referred to, such reference shall be deemed to include the, successors and
assigns of such party; and all the covenants, promises and agreements in this
Mortgage contained by or on behalf of the Company, or by or on behalf of the
Mortgagee, shall bind and inure to the benefit of the respective successors and
assigns of such parties whether so expressed or not.
Section 2.2. Severability. The unenforceability or invalidity of any
provision of provisions of this Mortgage shall not render any other provision
or provisions herein contained unenforceable or invalid.
Section 2.3. Addresses for Notices and Demands. All communications
provided for herein shall be in writing and shall be deemed to have been given
(unless otherwise required by the specific provisions hereof in respect of any
matter) when delivered personally or when deposited in the United States mail,
registered or certified, postage prepaid, or mailed prepaid overnight air
courier, addressed as follows:
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If to the Company: STRIKER HOLDINGS, INC.
Xxx Xxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attn: Xxxxx X. Xxxxxxx, President
If to the Mortgagee: BLUESTONE CAPITAL PARTNERS, L.P., Agent
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: President
with a copy to: Xxxxxx X. Xxxxxx, Esq.
Xxxxxxxxxxx & Xxxxxx
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
or as to either party at such other address as such party may designate by
notice duly given in accordance with this Section to the other party.
Section 2.4. Headings and Table of Contents. The headings of the
Sections of this Mortgage are inserted for purposes of convenience only and
shall not be construed to affect the meaning or construction of any of the
provisions hereof.
Section 2.5. Release of Mortgage. This Mortgage shall be a continuing
agreement in every respect and shall remain in full force and effect until all
of the Obligations shall have been fully paid and satisfied. Upon the
termination of this Mortgage, the Mortgagees shall, at the expense of the
Company, promptly release all of its Lien and security interests hereunder.
Section 2.6. Counterparts. This Mortgage may be executed, edged and
delivered in any number of counterparts, each of such counterparts constituting
an original but altogether only one Mortgage.
Section 2.7. Successor Mortgagee. The Mortgagee may, at any time, by
instrument in writing, appoint a successor or successors to, or discharge and
appoint a new Mortgagee in the place of, any Mortgagee named herein or acting
hereunder, which instrument, executed and acknowledged by the Mortgagees and
recorded in the office of the County Recorder of the county wherein the
Collateral is situated, with a copy of such recorded instruments delivered to
the Company, shall be conclusive proof of the proper substitution of such
successor or successors or new Mortgagee, who shall have all the estate,
powers, duties, rights, rights and privileges of the predecessor Mortgagee.
Section 2.8. Governing Law. This Mortgage shall be governed by and
construed and interpreted in accordance with the laws of the State of New York
except to the extent the real and personal property laws of the State of
Arkansas, including laws relating to the creation,
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perfection and enforcement of liens on real and personal property located in
Arkansas, shall necessarily apply to the enforcement of the security covered by
this Mortgage.
Section 2.9. Time. Time shall be of the essence of this Mortgage.
Section 2.10. No Oral Change. This Mortgage may only be modified or
amended by an agreement in writing signed by the Company and Mortgagee, and may
only be released, discharged, or satisfied of record by an agreement in writing
signed by Mortgagee.
IN WITNESS WHEREOF, the Company has caused this Mortgage to be executed
in its behalf by its President and attested by its Secretary as of the day and
year first above written.
STRIKER HOLDINGS, INC.
By: /s/ XXXXX X. XXXXXXX
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Xxxxx X. Xxxxxxx
President and CEO
ATTEST:
By: /s/ XXXXXXX X. XXXX
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Printed Name: Xxxxxxx X. Xxxx
Its Secretary
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ACKNOWLEDGMENT
STATE OF TEXAS )
)ss.
COUNTY OF XXXXXX )
I, Xxxxxx X. Xxxxxxx, a Notary Public in and for the County and State
aforesaid, do hereby certify that Xxxxx X. Xxxxxx personally known to me to be
the same person whose name as president & CEO of STRIKER HOLDINGS, INC., a
Texas corporation, is subscribed to the foregoing instrument, appeared before
me this day in person and acknowledged that he, being thereunto duly
authorized, signed and sealed with the seal of said Corporation, and delivered
the said instrument as the free and voluntary act of said Corporation and as
his own free and voluntary act, for the uses and purposes therein set forth.
Given under by hand and notarial seal this 21st day of January, 1997.
/s/ XXXXXX X. XXXXXXX
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[STATE OF TEXAS NOTARY PUBLIC SEAL] Notary Public
XXXXXX X. XXXXXXX
NOTARY PUBLIC, STATE OF TEXAS County of Residence:
MY COMMISSION EXPIRES
SEPT. 13, 1998 Xxxxxx County
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My Commission Expires:
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