Exhibit 10.9.4
MORTGAGE
KNOW ALL MEN BY THESE PRESENTS:
That for and in consideration of the sum of One Dollar cash in hand paid,
the receipt of which is hereby acknowledged, and the premises hereinafter set
forth, TSI Redfield Laboratories, Inc., ("Mortgagor"), does hereby grant,
bargain, sell and convey unto Simmons First National Bank, ("Mortgagee"), and
unto its successors and assigns forever, certain lands situated in Jefferson
County, Arkansas, as more particularly described on Appendix A Attached
hereto (hereinafter "Property").
Together with all buildings and other improvements now or hereafter
constructed on the Property and all and singular the tenements, hereditaments
and appurtenances thereunto belonging and all of the apparatus and fixtures
of every kind placed thereon for the purpose of supplying or distributing
heat, light, water, gas, power or air conditioning, including among other
things but without limitation, central heating and air conditioning systems,
electric wiring, electric light fixtures, hot water tanks, wash basins, water
closets, bath tubs, faucets, gas pipes, gas fixtures, window screens, door
screens, any shades, awnings, ornamental plants, shrubs and wall to wall
carpeting and also including built in dishwashers, cook tops and ovens
together with all similar apparatus or fixtures of any kind, similar or
dissimilar, in any building now or hereafter constructed upon the Property.
TO HAVE AND TO HOLD the same unto said Mortgagee, and unto its successors
and assigns forever, together with all improvements and all rights,
privileges and appurtenances thereunto belonging.
And Mortgagor does hereby covenant unto and with Mortgagee, its
successors and assigns, that Mortgagor is seized in fee simple of the said
real property included in this mortgage; that there are no liens or
encumbrances on the Property, other than as listed on Appendix B and that
Mortgagor will forever warrant and defend the title to the property hereby
mortgaged against the lawful claims of all persons whomsoever.
This conveyance, however, is made upon the following conditions, to-wit:
WHEREAS, this mortgage is given as security for an indebtedness, due
Mortgagee as is evidenced by two (2) promissory notes ("Notes") of Mortgagor
payable to Mortgagee of even date herewith, in the original principal amount
of $700,000 and $350,000, respectively, each bearing interest at the rate of
10% per annum, with interest and principal payable as set forth therein.
This conveyance is made to secure the prompt payment of the Notes, as and
when they become due, together with any and all renewals or extensions
thereof, and any other indebtedness which Mortgagor may come to owe Mortgagee
prior to the satisfaction or foreclosure of this mortgage, whether evidenced
by a note of the Mortgagor or by the records of the Mortgagee; and,
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WHEREAS, it is necessary to provide for the security of this mortgage and
to set forth certain understandings and conditions between Mortgagor and
Mortgagee with respect thereto, Mortgagor hereby covenants and agrees with
Mortgagee as follows:
1. Maintenance, Repair and Restoration of Improvements and Payment of
Prior Liens. Mortgagor shall (a) promptly repair, restore or rebuild any
buildings or improvements now or hereafter on the Property which may become
damaged or destroyed, except to the extent that such damage or destruction
shall be covered by insurance, in which event, the Mortgagee shall determine
whether the proceeds of such insurance coverage shall be used for repairs or
replacement or whether the same shall be applied against the outstanding
balance of one or both of the Notes hereby secured; (b) keep the Property in
good repair and condition, without waste committed thereon, and free from
liens of materialmen or mechanics or any other liens, except taxes not yet
due, not expressly subordinated to the lien hereof; (c) pay when due any
indebtedness which may be secured by a lien or charge on the Property which
is or might become superior to the lien hereof and upon request exhibit
satisfactory evidence of the discharge of such lien to the Mortgagee; and (d)
pay each item of indebtedness secured by this mortgage when due according to
the terms hereof.
2. Payment of Taxes. Mortgagor shall pay before penalty or default all
general taxes and any special assessments, water charges, sewer service
charges and other charges which accrue against the Property when due, and
shall, upon written request of the Mortgagee, furnish to the Mortgagee
duplicate receipts therefor. To prevent further default, the Mortgagor shall
pay in full and if necessary, under protest, any tax or assessment which the
Mortgagor may desire to contest.
In order to satisfy such obligation, the Mortgagor covenants and agrees
to deposit at a place to be designated by the Mortgagee, from time to time,
and in the absence of any specification, at the offices of the Mortgagee,
beginning on July 1, 1997, and on the first day of each month thereafter
until full payment of the indebtedness secured by this mortgage, a sum equal
to one-twelfth (1/12th) of the last total annual real property taxes and
special assessments on the Property or upon the anticipated taxes for the
next succeeding year to the extent that previous taxes have not included
improvements now or hereafter constructed upon the Property but based upon a
reasonable estimate as to the amount thereof (currently $2,433.51 per month).
In addition, Mortgagor upon execution of the Mortgage has deposited an
amount equal to six (6) monthly escrow payments, as necessary to cause the
escrow fund to contain a pro-rated current balance for 1997. Such deposits
shall be held, without interest, for the purpose of making payment, when due
and before default, of real property taxes and assessments on the mortgaged
premises. If the funds so deposited are insufficient to pay any such taxes
or assessments for any year when the same become due and payable, the
Mortgagor shall within ten (10) days after receipt of demand therefor deposit
such additional funds as may be necessary to pay such taxes or assessments in
full. If the funds so deposited shall exceed the amount required to pay real
property taxes or assessments for any years, such excess may be applied
toward subsequent payments on such future obligations.
3. Insurance. Mortgagor shall keep all buildings and improvements, now
or hereafter situated on the Property, insured against loss or damage by fire
and such other hazards as may
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reasonably be required by the Mortgagee, with standard mortgagee clauses
therein making the losses, if any, payable to the Mortgagee as its interest
may appear. All such insurance policies shall be in form, amount and issued
by companies satisfactory to the Mortgagee, and shall provide that the
coverage evidenced thereby shall not be terminated or modified materially
without ten (10) days prior written notice to the Mortgagee. Renewal
policies of insurance shall be delivered to the Mortgagee not less than ten
(10) days prior to the expiration date of the prior policies.
4. Adjustment of Losses and Application of Insurance Proceeds. In the
event of a loss by reason of an insured hazard to the improvements upon the
Property, the Mortgagee (or after entry of a decree of foreclosure, any
purchaser at the sale, or the decree creditor, as the case may be) is hereby
authorized either (a) to settle and adjust any claim under such insurance
policies without the Mortgagor's consent or joinder, or (b) to allow
Mortgagor to agree with the insurance company or companies on the amount to
be paid upon the loss. In either case, the Mortgagee is hereby fully
authorized and empowered to collect and receipt for any such insurance
proceeds. At the Mortgagee's option, insurance proceeds may either be
applied to the reduction of the indebtedness hereby secured, whether or not
due, or may be held by the Mortgagee and used to reimburse the Mortgagor for
the costs of rebuilding or restoring the buildings and improvements on the
Property.
In case of loss after foreclosure proceedings have been instituted, the
proceeds of any such insurance policy or policies, if not applied in
rebuilding or restoring the buildings or improvements upon the Property,
shall be used to pay the amount due in accordance with any decree of
foreclosure that may be entered in any such proceedings, and the balance, if
any, shall be paid to the owner of the equity of redemption, if such owner
shall then be entitled to the same or as the court may direct.
5. Effect of Extensions of Time. If the payment of said indebtedness or
any part thereof be extended or varied or if any part of the security is
released, all persons now or at any time hereafter liable therefor, or
interested in the Property, shall be held to agree to such extension,
variation or release, and their liability under the Notes, the lien created
hereunder and all provisions hereof shall continue in force, the right of
recourse against all such persons being expressly reserved by the Mortgagee,
notwithstanding such extension, variation or release.
6. Effect of Changes in Laws Regarding Taxation. In the event of the
enactment, after the date hereof, of any law of the State of Arkansas
deducting from the value of land, for the purpose of taxation, any
improvements thereon, or imposing upon the Mortgagee the obligation for the
payment of the whole or any part of the taxes, assessments, charges or liens
herein required to be paid by the Mortgagor, or imposing any taxation of
mortgages or debts secured by mortgages or any interest of the Mortgagee in
the Property, or in the manner of collection of taxes so as to affect this
mortgage or the debt secured hereby or the holder hereof, then in such event,
the Mortgagor, upon demand by the Mortgagee, shall pay such taxes or
assessments, or reimburse the Mortgagee therefor; provided, however, that if
in the opinion of counsel for the Mortgagee (a) it might be unlawful to
require Mortgagor to make such payment or (b) the making of any such payment
might result in the imposition of interest beyond the maximum amounts
permitted by law, then and in such event, the Mortgagee may elect, by notice
in writing, given to the Mortgagor, to declare all of the indebtedness
secured hereby to be due and payable sixty (60) days from and after the date
notice was given.
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7. Mortgagee's Performance of Defaulted Acts. In case of a default
herein by Mortgagor, the Mortgagee may, at its option, make any payment or
perform any act herein required of the Mortgagor in any form and in any
manner which it deems expedient, including the making of any full or partial
payments of principal and interest on prior encumbrances, if any, and may
purchase, discharge, compromise or settle any tax lien or other prior liens
or title or claim thereof, or redeem from any tax sale or forfeiture
affecting the Property or contest any tax or assessment, but all without any
obligation to do so. All moneys paid for any of the purposes herein
authorized and all expenses paid or incurred in connection therewith by the
Mortgagee, including attorneys fees, and any other moneys advanced by the
Mortgagee to protect the Property and the lien hereof, shall be additional
indebtedness secured hereby, and shall become immediately due and payable
without notice and with interest thereon at the highest legal rate of
interest per annum from the date of payment until repaid. Any inaction by the
Mortgagee shall not be construed as a waiver of any right granted hereunder
upon any default by Mortgagor.
8. Mortgagee's Reliance on Tax Bills. The Mortgagee in making any
payment hereby authorized: (a) relating to taxes and assessments, may do so
according to any bill, statement or estimate procured from the appropriate
public office without inquiry into the accuracy of such bill, statement or
estimate or into the validity of any tax, assessment, sale, forfeiture, tax
lien or title or claim thereof; or (b) for the purchase, discharge,
compromise or settlement of any other prior lien, may do so without inquiry
as to the validity or amount of any claim for lien which may be asserted.
9. Acceleration of Indebtedness in Case of Default. If (a) default be
made for thirty (30) days in the due and prompt payment of one or both of the
Notes secured hereby, or any installment due in accordance with the terms
thereof, either of principal or interest, or any part thereof; or (b) the
Mortgagor shall file a petition under any bankruptcy law or have such a
petition filed against it, shall have a receiver appointed for any of its
assets, shall file any answer or responsive pleadings admitting insolvency or
inability to pay any of its indebtedness, or fail to obtain a vacation or
stay of any involuntary proceedings in solvency or bankruptcy against it
within thirty (30) days, as herein provided; or (c) all or any part of its
property shall be taken by execution, levy or any other involuntary
proceedings, or any court shall have taken jurisdiction of the property of
the Mortgagor or the major part thereof for reorganization, dissolution,
liquidation or winding up of its affairs, and such trustee or receiver shall
not be discharged or such jurisdiction relinquished or vacated or stayed on
appeal or otherwise stayed within thirty (30) days; or (d) the Mortgagor
shall make any assignment for the benefit of its creditors or shall admit in
writing its inability to pay its debts generally as they become due, or shall
consent to the appointment of a receiver or trustee or liquidator of all of
its property or the major part thereof; or (e) default shall be made in due
observance or performance of any other of the covenants, agreements, or
conditions, herein contained, required to be kept or performed or observed by
the Mortgagor and the same shall continue for thirty (30) days, then the
entire indebtedness hereby secured shall, at the option of the Mortgagee,
immediately become due and payable together with the accrued interest thereon
without notice to the Mortgagor, provided, however, that with respect to (c),
(d), and (e) notice of the claimed default has been given to the Mortgagor by
the Mortgagee within the time specified and the default has not been cured.
10. Foreclosure and Expense of Litigation. When the indebtedness hereby
secured, or any part thereof, shall become due, whether by acceleration or
otherwise, Mortgagee shall have the right
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to foreclose the lien hereof for such indebtedness or part thereof. In any
suit to foreclose the lien hereof, there shall be allowed and included an
additional indebtedness in the decree for sale all expenditures and expenses
which may be paid or incurred by or on behalf of the Mortgagee for attorneys
fees, appraisal charges, documentary and expert evidence, stenographer
charges, publication costs, and any costs, which may be estimated, for
procuring abstracts of title, title searches and examinations, title
insurance policies, and similar data and assurances with respect to title, as
the Mortgagee may deem reasonably necessary, either to prosecute such suit or
to evidence to bidders at any sale which may be made pursuant to such decree
the true condition of the title to or the value of the premises. All
expenditures and expenses of the nature set forth in this paragraph, and such
expenses and fees as may be incurred in the protection of the Property and
the maintenance of the lien of this mortgage, including the fees of any
attorney employed by the Mortgagee in any litigation or proceeding affecting
this mortgage, the Notes or the Property, including bankruptcy proceedings,
or in preparations for the commencement or defense of any proceedings or
threatened suit or proceeding, shall be immediately due and payable by the
Mortgagor, with interest thereon at the highest legal rate of interest per
annum, from the date expended until repaid and shall be secured by this
mortgage.
11. Application of Proceeds of Foreclosure Sale. The proceeds of any
sale at foreclosure of the Property shall be distributed and applied in the
following order of priority, subject to the decree of a court of competent
jurisdiction. First, for all costs and expenses incident to the foreclosure
proceedings, including all items as are mentioned in Paragraph 10 hereof;
second, all other items which under the terms hereof constitute secured
indebtedness additional to that evidenced by the Notes, with interest thereon
as herein provided; third, all principal and interest remaining unpaid on the
Notes with equal priority; fourth, any surplus to Mortgagor, its successors
or assigns, as its rights may appear.
12. Appointment of a Receiver. Upon, or at any time after, the filing
of a complaint to foreclose this mortgage, the court may appoint a receiver
of the Property. Such appointment may be made either before or after sale,
with or without notice, and without regard to the insolvency or solvency of
the Mortgagor at the time of the application for such receiver and without
regard to the then value of the Property. Such receiver shall have the power
to collect the rents, issues and profits of the Property during the pendency
of any such foreclosure suit and, in case of a sale and a deficiency, up to
time when possession shall be given to the purchaser at such foreclosure
sale, and all other powers which may be necessary or are usual in such cases
for the protection, possession, control, management and operation of the
Property during the whole of said period. The court from time to time may
authorize the receiver to apply the net income in its hands in payment in
whole or in part to (a) the indebtedness secured hereby, or by any decree
foreclosing this mortgage, or any tax, special assessment or other lien which
may be or become superior to the lien hereof or of such decree, provided such
application is made prior to foreclosure sale; and (b) the payment of the
deficiency in case of a sale under foreclosure and a deficiency judgment.
13. Assignment of Rents. To further secure the indebtedness secured
hereby, the Mortgagor does hereby sell, assign and transfer unto the
Mortgagee all of the rents, issues and profits, now due and which may
hereafter become due, under or by virtue of any lease, whether written or
oral, or any letting of, or of any agreement for the use or occupancy of the
premises or any part thereof, which may have been heretofore or may be
hereafter made or agreed
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to or which may be made or agreed to by the Mortgagee under the powers herein
granted, it being the intention hereby to establish an absolute transfer and
assignment of all of such leases and agreements, and all the avails
thereunder, unto the Mortgagee, and the Mortgagor does hereby irrevocably
appoint the Mortgagee as its true and lawful attorney and agent in its name
and stead (with or without the taking of possession of the Property as
authorized under Paragraph 14 hereof) to rent, lease and let all or any
portion of the Property to any party or parties at such rent and upon such
terms as the Mortgagee shall, in its discretion, determine, and to collect
all rents, issues and profits arising from or accruing hereafter, and all now
due or that may hereafter become due under each of the leases and agreements,
written or oral, or other tenancy existing, or which may hereafter exist on
the Property, with the same rights and powers and subject to the same
immunities, exoneration of liability and rights of recourse and indemnity set
forth in the provisions of Paragraph 14 hereof.
The Mortgagor represents and agrees that no rent has been or will be paid
by any person in possession of any portion of the Property for more than one
installment in advance and that the payment of none of the rents to accrue
for any portion of the Property has been or will be waived, released,
reduced, discounted or otherwise discharged or compromised by the Mortgagor.
The Mortgagor waives any right of set-off against any person in possession of
any portion of the Property. If any lease provides for the abatement of
rentals during repairs of the premises demised thereunder by reason of fire
or other casualty, the Mortgagor shall furnish to the Mortgagee rental
insurance, the policies to be in amounts and forms and written by such
insurance companies as shall be satisfactory to the Mortgagee. The Mortgagor
agrees that it will not assign any of the rents or profits of the Property,
except to a purchaser or grantee of premises.
Nothing herein contained shall be construed as constituting the Mortgagee
a Mortgagee in possession in the absence of the actual taking of possession
of the Property by the Mortgagee pursuant to Paragraph 14 hereof. In the
exercise of the powers herein granted to the Mortgagee, no liability shall be
asserted or enforced against the Mortgagee, all such liability being
expressly waived and released by the Mortgagor.
The Mortgagor further agrees to assign and transfer to the Mortgagee all
future leases upon all or any part of the Property and to execute and
deliver, at the request of the Mortgagee, all such further assurances and
assignments in the premises as the Mortgagee shall from time to time require.
Although it is the intention of the parties that the assignment contained
in this Paragraph 13 shall be a present assignment, it is expressly
understood and agreed anything herein contained to the contrary
notwithstanding, that the Mortgagee shall not exercise any of the rights or
powers conferred upon it by this Paragraph 13 until a default shall exist
hereunder.
So long as any part of the obligation hereby secured remains unpaid, the
Mortgagor, with respect to each such lease assigned hereunder, will not
modify nor in any way alter the terms of the lease; will not terminate the
term of the lease nor accept a surrender thereof unless required to do so by
the terms of the lease; will not waive nor release the lessee from any
obligations or conditions to be performed, and will, as lessor, fulfill or
perform each and every condition and covenant in the lease by the lessor to
be fulfilled or performed and to take every action required on its part to
preserve and continue the lease in force.
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14. Mortgagee's Right of Possession in Event of Default. In any case in
which under the provisions of this mortgage, the Mortgagee has a right to
institute foreclosure proceedings, whether before or after acceleration of
the entire balance of the principal secured hereby in accordance with its
option so to do, or whether before or after the institution of legal
proceedings to foreclose the lien hereof or before or after sale thereunder,
forthwith, upon demand of the Mortgagee, the Mortgagor shall surrender to the
Mortgagee and Mortgagee shall be entitled to take actual possession of the
Property or any part thereof personally, or by its agents or attorneys, as
for a condition broken, and the Mortgagee, in its discretion may, with or
without force and with or without process of law, enter upon and take and
maintain possession of all or any part of the Property, together with all
documents, books, records, papers and accounts of the Mortgagor or the then
owner of the premises relating thereto, and may exclude the Mortgagor, its
agents or servants wholly therefrom and may as attorney-in-fact or agent of
the Mortgagor, or in its own name as Mortgagee and under the powers herein
granted, hold, operate, manage, and control the Property and conduct the
business, if any, thereof, either personally or by its agents, and with full
power to use such measures, legal or equitable, as in its discretion or in
the proper discretion of its successors or assigns may be deemed proper or
necessary to enforce the payment or security of the rents, issues and profits
of the Property, including action for the recovery of rents, action in
unlawful detainer and actions in distress for rent, hereby granting full
power and authority to exercise each and every of the rights, privileges and
powers herein granted at any and all times hereafter, without notice to the
Mortgagor, and with full power to cancel or terminate any lease or sublease
for any cause on any ground which would entitle the Mortgagor to cancel the
same, to elect to disaffirm any lease or sublease made subsequent to this
mortgage or subordinated to the lien hereof, to make all necessary or proper
repairs, decorating, renewals, replacements, alterations, additions and
improvements to the Property as it may deem judicious, insure and reinsure
the same and all risks incident to Mortgagee's possession, operation and
management thereof and to receive all of such rents, issues and profits.
The Mortgagee shall not be obligated to perform or discharge, nor does it
hereby undertake to perform or discharge, any obligation, duty or liability
under any lease, and the Mortgagor shall and does hereby agree to indemnify
and hold the Mortgagee harmless of and from any and all liability, loss or
damage which it may incur under any such leases or by reason of the
assignment thereof and from any and all claims and demands whatsoever which
may be asserted against it by reason of any alleged obligations or
undertakings on its part to perform or discharge any of the terms, covenants
or agreements contained in the leases. Should the Mortgagee incur any such
liability, loss or damage, under the leases or under or by reason of the
assignment thereof, or in the defense of any claims or demands, the amount
thereof including costs, expenses and reasonable attorneys fees, shall be
hereby secured, and the Mortgagor shall reimburse the Mortgagee therefor
immediately upon demand.
15. Application of Income Received by Mortgagee. The Mortgagee in the
exercise of the rights and powers hereinabove conferred upon it by Paragraph
13 and 14 hereof shall have full power to use and apply the rents, issues and
profits of the premises to the payment of or on account of the following, in
such order as the Mortgagee may determine: (a) to the payment of the
operating expenses of Property, including the cost of management and leasing
thereof (which shall include reasonable compensation to the Mortgagee and its
agents or agent, if management be delegated to an agent or agents, and shall
also include lease commissions and other compensations and expenses of
seeking and procuring tenants and entering into leases), established claims
for damages, if any,
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and premiums on insurance hereinabove authorized; (b) to the payment of taxes
and special assessments now due or which may hereafter become due on the
Property; (c) to the payment of all repairs, decorating, renewals,
replacements, alterations, additions, betterments and improvements on the
Property, including the cost of installing or replacing air conditioning or
heating units therein, and of placing said property in such condition as
will, in the judgment of the Mortgagee, make it readily rentable; (d) to the
payment of any indebtedness secured hereby or any deficiency which may result
from a foreclosure sale.
16. Environmental and Industrial Hygiene Compliance. Mortgagor
covenants, represents and warrants that to the extent it uses, generates,
manufactures, stores or disposes of, on, under or about the Property or
transports to or from the Property any flammable explosives, radioactive
materials, hazardous wastes, toxic substances, or related materials
(hereinafter "Hazardous Materials"), it will do so only in full compliance
with the Comprehensive Environmental Response, Compensation and Liability Act
of 1980, as amended (42 U.S.C. Section 9601 et seq.); the Hazardous Materials
Transportation Act (49 U.S.C. Section 1801, et seq.); the Resource
Conservation and Recovery Act (42 U.S.C. Section 6901 et seq.); and all other
statutes and regulations governing, defining or regulating the manner and
method of storage, transportation or disposition of Hazardous Materials.
Mortgagor further agrees to indemnify and hold harmless the Mortgagee, its
directors, officers, employees and agents, from and against any and all
liability (i) including foreseeable and unforeseeable consequential damages,
directly or indirectly arising out of use, generation, storage or disposition
of Hazardous Materials by the Mortgagor or any operator of the Property
during Mortgagor's ownership thereof, and (ii) including, without limitation,
the cost of any required or necessary remediation, repair, cleanup or
detoxification and the preparation of any closure or other required plans,
whether such action is required or necessary prior to or following transfer
of title to the Premises, to the full extent that such action is
attributable, directly or indirectly, to the presence or use, generation,
storage, release, threatened release, or disposal of Hazardous Materials by
any person on the Property during Mortgagor's ownership thereof, and the
Mortgagor's obligations pursuant to this indemnity shall survive satisfaction
or discharge of this Mortgage, and shall survive, notwithstanding that the
alleged liability of the Mortgagee shall be by reason of any exercise by it
of control or dominion over the Property or the activities of the Mortgagor.
17. Mortgagee's Right of Inspection. The Mortgagee shall have the right
to inspect the mortgaged property at all reasonable times and access thereto
shall be permitted for that purpose.
18. Release. The Mortgagee shall release this instrument and the lien
hereof by proper instrument upon payment and discharge of all indebtedness
hereby secured and the payment of all costs to the Mortgagee for the
execution and recording of any such release.
19. Condemnation. Mortgagor hereby assigns, transfers and sets over
unto Mortgagee the entire proceeds of any award or any claim for damages for
any of the Property taken or damaged under the power of eminent domain or by
condemnation. Mortgagee may elect to apply the proceeds of the award upon or
in reduction of the indebtedness secured hereby, whether or not due, or to
require Mortgagor restore or rebuild, in which event the proceeds shall be
held the Mortgagee and used by it to reimburse the Mortgagor for the costs of
rebuilding or restoring of buildings or improvements on the Property, in
accordance with plans and specifications to be submitted to and approved, in
advance, by the Mortgagee. If the Mortgagor is obligated to restore or
replace the damaged or destroyed buildings or improvements under the terms of
any lease or leases which are or may be prior to the lien of this mortgage
and if such taking does not result in cancellation or
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termination of such lease, the award shall be used to reimburse the Mortgagor
for the cost of rebuilding or restoring of buildings or improvements on the
Property, provided the Mortgagor is not then in default under this mortgage.
In the event the Mortgagor is required or authorized, either by Mortgagee's
election, or by virtue of any such lease, to rebuild or restore, the proceeds
of the award shall be paid out in the same manner as provided in Paragraph 4
hereof for the payment of insurance proceeds toward the cost of rebuilding or
restoration. If the amount of such award is insufficient to cover the cost
of rebuilding or restoration, the Mortgagor shall pay such cost in excess of
the award before being entitled to reimbursement out of the award. Any
surplus which may remain out of rebuilding or restoration shall, at the
option of the Mortgagee, be applied to the indebtedness hereby secured or be
paid to any other party entitled hereto.
20. Giving of Notice. Any notice which either party may desire or be
required to give to the other party shall be in writing and the mailing
thereof by certified mail addressed to the Mortgagor at its telephone book
address or to the Mortgagee at its principal place of business or at such
other place as either party may by notice in writing designate as a place for
service of notice.
21. Waiver of Defenses and Statutory Rights. No action for the
enforcement of the lien or of any provision hereof shall be subject to any
defense which would not be available to the party interposing the same in an
action at law upon one or both of the Notes hereby secured. Mortgagor agrees
that it will not apply for or avail itself of any appraisement, stay,
valuation, extension or exemption laws or so-called "moratorium laws", now
existing or hereafter enacted, in order to prevent or hinder the enforcement
or foreclosure of this mortgage, and hereby waives the benefit of such laws,
and the Mortgagor specifically waives all rights of appraisement and
redemption and particularly all rights of redemption from any sale made by
decree of court upon foreclosure.
22. Successive Effect of the Obligations of this Mortgage. This
mortgage and all provisions hereof shall extend to and be binding upon the
Mortgagor and all persons claiming by, through or under the Mortgagor, and
the word "Mortgagor" when used herein shall include all persons liable for
the payment of the indebtedness secured hereby or any part thereof, whether
or not such persons shall have executed the Notes or this mortgage. The word
"Mortgagee" when used herein shall include the successors and assigns of the
Mortgagee named herein, and the holder or holders, from time to time, of
either or both of the Notes secured hereby.
23. Nonassumibility. Upon the sale or transfer of the Property, or any
part thereof, the entire outstanding principal balance and accrued interest
under the Notes shall, at the option of the Mortgagee, become immediately due
and payable.
24. Captions. The captions and headings of various paragraphs of this
mortgage are for convenience only and are not to be construed as defining or
limiting in any way, the scope or intent of the provisions hereof.
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IN WITNESS WHEREOF, Mortgagor has caused this Mortgage to be executed
this 27th day of June, 1997.
TSI REDFIELD LABORATORIES, INC.
By /s/ John B. Green
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John B. Green, Treasurer
ACKNOWLEDGEMENT
STATE OF ARKANSAS )
COUNTY OF Jefferson ) SS
BE IT REMEMBERED, that on this day appeared in person before me, the
undersigned, a Notary Public within and for the county and state aforesaid,
duly commissioned, qualified and acting, the within named John B. Green, to
me well known, who stated that he was the Treasurer of TSI Redfield
Laboratories, Inc., and that he was duly authorized in that capacity to
execute the foregoing instrument and that he had so executed the same for the
consideration and purposes therein mentioned and set forth, and I do hereby
so certify.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal as
such Notary Public this 22nd day of May 1997.
Alicia J. Kitchens
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Notary Public
My commission expires:
7-01-04
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APPENDIX A
The East Half (E 1/2) of the Southwest Quarter (SW 1/4) of the Northeast
Quarter (NE 1/4) of Section 22, Township 3 South, Range 11 West of the 5th
P.M.; AND ALSO,
That portion of Block Thirteen (13) of the Town of Redfield, Arkansas,
according to the plat thereof shown of record in the office of the Circuit Clerk
and Ex-Officio Recorder of Jefferson County, Arkansas, in Plat Book 3 at page 28
specifically described as:
Beginning at the Easterly corner of Block Thirteen (13) of the Town of
Redfield and running thence in a Southwesterly direction 150 feet to the line
dividing Block Thirteen (13) into two equal halves and running thence
Northwesterly along that line 300 feet to a point on the Southeasterly line of
Boone Street; thence Northeasterly 150 feet, more or less, to the Northerly
corner of Block Thirteen (13); and thence in a Southeasterly direction along the
Northeasterly line of Block Thirteen (13) 300 feet, more or less, to the point
of beginning; which is also described as Lots One (1), Two (2), Three (3), Four
(4), Five (5) and Six (6) in Block Thirteen (13) of the Town of Redfield,
Arkansas; AND ALSO,
The South Half (S 1/2) of the Northwest Quarter (NW 1/4) of the Northeast
Quarter (NE 1/4) of Section 22, Township 3 South, Range 11 West of the 5th
P.M.;
LESS AND EXCEPT, a parcel of land lying in the Northwest Quarter (NW 1/4)
of the Northeast Quarter (NE 1/4) of Section 22, Township 3 South, Range 11
West of the 5th P.M., more particularly described as follows:
Commencing at the Southwest corner of the Northwest Quarter (NW 1/4) of
the Northeast Quarter (NE 1/4) of said Section 22, thence, North 205 feet
North 40 degrees West 150 feet; and thence South 195.2 feet to the point of
beginning.
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APPENDIX B
1. A mortgage from TSI Redfield Laboratories, Inc. to Jefferson County,
Arkansas dated November 29, 1990 and recorded in the records of Jefferson
County, Arkansas in Mortgage Book 574 at page 298, and assigned to the
Arkansas Industrial Development Corporation by assignment of record in
Mortgage Book 576 at page 33.
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