Exhibit 10.4
All references herein to the Bank, Central Bank or Central
Bank of the South refer to Compass Bank.
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FILE
UNDER:
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, ALABAMA $
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LOAN
,19 OFFICER
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CENTRAL BANK [LOGO]
PROMISSORY NOTE
1. Promise to Pay
FOR VALUE RECEIVED, this the 20 day of April, 1994, the undersigned,
jointly and severally, if more than one (herein, the "Borrower", whether one or
more), promise to pay to the order of COMPASS BANK (herein called "Bank", or
Bank and any subsequent holder hereof, as applicable, are referred to as the
"Holder"), at the Bank's office or at such other place as Holder may designate
from time to time without grace and in lawful money of the United States of
America, the principal sum of FIVE HUNDRED FIFTY THOUSAND and 00/100 Dollars
($550,000.00), (or if there is more than one advance hereunder, the aggregate
principal amount of all advances by Holder to Borrower pursuant to this Note),
together with interest thereon, all as evidenced by the records of Holder.
Borrower promises to pay principal and interest as set forth in Sections 2 and 3
below. Unless otherwise elected by Holder, all payments shall be applied as
billed by Holder, and if not billed, then first to late and other charges, if
any, payable hereunder or under any Loan Document, then to interest and then to
principal.
2. Payment of Principal (2.4 relates to principal and interest) Principal
shall be paid as follows: (check one)
2.1 |_| On demand.
2.2 |_| ____________ after the date hereof, due on _________, 19__.
2.3 |_| Principal payments shall be made in _________ consecutive
_______________ installments of $______________ each, commencing
_________________, 19__, and a final installment equal to the total
unpaid principal, interest and charges, due and payable in full on
_______________, which date shall be the maturity date of this Note.
2.4 |X| Principal and interest payments shall be made in 59 consecutive
monthly installments of $4,715.82 each, based on a 180 month
amortization schedule, commencing May 20, 1994, and a final
installment equal to the total unpaid principal, interest and
charges due and payable in full on April 20, 2009, which date shall
be the maturity date of this Note.,
3. Interest, Payment of Interest
Interest from date on the outstanding unpaid principal balance shall be
calculated by multiplying the product of the principal amount and the applicable
rate set forth herein by the actual number of days elapsed, and dividing by 360.
"Central Bank Prime", as used herein, is a reference rate established by the
Bank for use in computing and adjusting interest, is subject to increase,
decrease or change at the Bank's discretion, and is only one of the reference
rates or indices that the Bank uses. The Bank may lend to others at rates of
interest at, or greater or less than, Central Bank Prime or the rate provided
herein. In no event shall the rate of interest calculated hereunder exceed the
maximum amount allowed by law. Any principal amounts outstanding hereunder after
maturity shall continue to bear interest at the rate, and calculated in the
manner, set forth herein. The applicable rate hereunder shall be determined and
paid as follows (check one):
3.1 |_| The applicable rate shall be ________%. Interest shall be billed
and paid __________________________________.
3.2 |X| The applicable rate shall be equal to Central Bank Prime from
time to time prevailing at Bank. In no event shall the applicable
rate exceed 99% or be less than 4%. Any change in said rate
resulting from a change in Central Bank Prime shall take effect
immediately. Interest shall be billed and paid monthly as provided
in 2.4 above.
3.3 |_| The applicable rate shall be equal to ________ percentage points
above Central Bank Prime from time to time prevailing Bank. The
applicable rate is subject to adjustment in accordance with the
provisions of this Section 3.3 based on the formula set forth below,
relating (i) the average net usable funds of the non-interest
bearing deposit balances maintained during the preceding _______
months ("Averaging Period") by Borrower with Bank to (ii) the
Borrower's average outstanding loan balance during the Average
Period (herein "Compensation"). The Averaging Period may not be the
immediate preceding _______ month period because of time needed for
computational purposes. Any change in the applicable rate resulting
from a change in Central Bank Prime shall take effect
____________________________.
Interest shall be billed and paid ______________________________. As
used herein, the term "net usable funds" shall mean the investable,
collected funds held by Bank after deducting the reserve
requirements imposed upon Bank and Bank's standard service charges
and other actual charges incurred by Bank with respect to the
account(s). Collected funds are determined and calculated based on
the then current Federal Reserve Bank availability schedules, and,
if not covered thereby, when actually collected. The average net
usable funds shall be reviewed monthly, at which time the applicable
rate will be adjusted in increments of 1/2 (.50) percentage points,
based on Central Bank Prime on the last day of the Averaging Period
pursuant to the following formula. No reduction shall be applicable
when Central Bank Prime on the last day of the Averaging Period is
less than 5%.
Central Bank Prime Compensation Required To Central Bank Prime Compensation Required To
on the Last Day of the Reduce Applicable Rate on the Last Day of the Reduce Applicable Rate
Averaging Period by 1/2 Percentage Point Averaging Period by 1/2 Percentage Point
---------------------- ------------------------- ---------------------- ------------------------
5% to 5.9% 14% 12% to 12.9% 5%
6% to 6.9% 11% 13% to 14.9% 4.5%
7% to 7.9% 9% 15% to 16.9% 4%
8% to 8.9% 8% 17% to 18.9% 3.5%
9% to 9.9% 7% Greater than 19% 3%
10% to 11.9% 6%
A minimum of $__________________ in average net usable funds is
required to qualify for any reduction to the applicable rate. If the
greater of (i) this minimum amount, or (ii) an amount of
compensation sufficient to qualify for a 1/2 percentage point rate
reduction has not been satisfied for any three (3) consecutive
monthly review periods, the Bank shall have no further obligations
to make such reviews, and the Borrower thereafter shall not be
entitled to any reduction to the applicable rate.
Rate floor and ceiling
(a) |_| In no event shall the applicable rate under this Section
3.3 exceed ____________% or be less than ______________%. If a
minimum of $___________ in average net usable funds is not
maintained for three (3) consecutive monthly reviews,
thereafter the provisions of paragraph (b) below shall apply
in lieu of the provisions of this paragraph (a).
(b) |_| In no event shall the applicable rate under this Section
3.3 exceed _________% or be less than the greater of
__________ percentage points ______________ Central Bank Prime
or __________%.
3.4 |_| If checked, see Addendum 1 for applicable interest formula and
payment of interest.
4. Security
(Check and complete applicable options) Borrower has given Bank:
4.1 |_| title to and a security interest under the Uniform Commercial
Code of Alabama or other state, as applicable, in the collateral
described in the separate security agreement(s) ("Security
Agreement");
4.2 |X| a mortgage on, or deed of trust, deed to secure debt, or other
lien or interest in real property and improvements ("Mortgage")
4.3 |_| ______________________________________________________________
The Security Agreement, Mortgage, loan agreement and any other Loan
Document evidencing, securing or guaranteeing all or any part of the
indebtedness hereunder are sometimes collectively referred to as "Loan
Documents". Borrower acknowledges having read and understood the Holder's rights
under such separate agreements. References to the Loan Documents and to such
other agreements shall not affect or impair the absolute and unconditional
obligation of the Borrower to pay the principal of and interest on this Note
when due.
To the extent permitted by applicable law, Holder may, but shall not be
required to, apply to or set off against any amount owed under this Note,
without notice to Borrower, any funds, credit or property held by, in transit to
or in possession of, Holder for the account of any Borrower.
5. Purpose of Loan
The purpose of the loan is: to refinance existing indebtedness. The
Borrower represents and warrants to the Bank that this transaction is
exclusively for the business purposes of the Borrower.
6. Prepayment
Prepayments may result in an early maturity date. (check one)
|X| This Note may be prepaid in whole or in part at any time without a
prepayment charge.
|_| This Note may be prepaid __________________________________________
__________________________________________________________________.
Section 7, 8, 9 & 10 appearing on the reverse side are a part of this
Note.
CAUTION - IT IS IMPORTANT THAT YOU THOROUGHLY READ THE CONTRACT BEFORE YOU
SIGN IT.
1301 N. FORTH AVENUE EAGLE SUPPLY, INC.
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Address
TAMPA, FLORIDA 33605 By /s/ , as V.P.
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Its Vice President
(813) 248-4911
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S.S. No or TAX I.D. No. Phone Number
All references herein to Central Bank or
Central Bank of the South are references
to Compass Bank.
CENTRAL BANK [LOGO]
FUTURE ADVANCE MORTGAGE,
ASSIGNMENT OR RENTS AND LEASES
AND SECURITY AGREMENTS
(ALABAMA)
STATE OF ALABAMA
COUNTY OF JEFFERSON
THIS INDENTURE (herein this "Mortgage") made this 20th day of April, 1994,
between EAGLE SUPPLY, INC., a ____________________________ (hereinafter called
the "Borrower", whether one or more), Mortgagor, and COMPASS BANK (hereinafter
called "Bank"), Mortgagee.
THIS MORTGAGE IS FILED AS, AND SHALL CONSTITUTE A FIXTURE FILING IN ACCORDANCE
WITH THE PROVISIONS OF SECTION 7-9-402(6) OF THE CODE OF ALABAMA.
check if |_| THIS MORTGAGE IS A "CONSTRUCTION MORTGAGE" AS DEFINED IN
applicable SECTION 7-9-313(1)(C) OF THE CODE OF ALABAMA, AND SECURES,
AMOUNT OTHER OBLIGATIONS, AN OBLIGATION INCURRED FOR THE
CONSTRUCTION OF AN IMPROVEMENT OF LAND
WITNESSETH:
WHEREAS, Borrower is justly indebted to Bank on a loan in the principal
sum of Five Hundred Fifty Thousand AND 00/100 DOLLARS ($550,000.00) (the
"Loan"), or so much as may from time to time be disbursed thereunder, as
evidenced by a promissory note dated April, 1994, payable to Bank with interest
thereon (the "Note") as follows:
check if |_| On _____________, ___________ or such earlier maturity date as
applicable provided in the Note or as provided in any Loan Document as
defined below;
If not checked above, then on demand or as otherwise provided
in the Note; and
WHEREAS, Borrower may hereafter become indebted to Bank or to a subsequent
holder of this Mortgage on loans or otherwise (the Bank and any subsequent
holder of this Mortgage being referred to herein as "Lender"); and
WHEREAS, the parties desire to secure the principal amount of the Note
with interest, and all renewals, extensions and modifications thereof, and all
refinancings of any part of the Note.
NOW, THERFORE, the Borrower, in consideration of making the Loan, and to
secure the prompt payment of same, with the interest thereon, and any
extensions, renewals, modifications and refinancings of same, and any charges
herein incurred by Lender on account of Borrower, including but not limited to
attorney's fees, and any and all Other Indebtedness as set forth above, and
further to secure the performance of the covenants, conditions and agreements
hereinafter set forth and set forth in the Note and set forth in all other
documents evidencing, securing or executed in connection with the Loan,
including, when executed, a loan agreement (the "Loan Documents"), and as may be
set forth in instruments evidencing or securing Other Indebtedness (the "Other
Indebtedness Instruments") has bargained and sold and does hereby grant,
bargain, sell, alien and convey unto the Lender, its successors and assigns, the
following described land, real estate, estates, buildings, improvements,
fixtures, furniture, and personal property (which together with any additional
such property in the possession of the Lender or hereafter acquired by the
Borrower and subject to the lien of this Mortgage, or intended to be so, as the
same may be constituted from time to time is hereinafter sometimes referred to
as the "Mortgaged Property") to-wit:
(a) All that tract or parcel or parcels of land and estates particularly
described in Exhibit A attached hereto and made a part hereof (the
"Land");
(b) All buildings, structures, and improvements of every nature
whatsoever nor or hereafter situated on the Land, and all fixtures
and fittings, building materials, machinery and equipment that
constitute fixtures whatsoever now or hereafter owned by the
Borrower and used or intended to be used in connection with or with
the operation of said property, buildings, structures or other
improvements, including all extensions, additions, improvements,
betterments, renewals, substitutions, replacements and accessions to
any of the foregoing, whether such fixtures, fittings, building
materials, machinery, equipment, are actually located on or adjacent
to the Land or not and whether in storage or otherwise wheresoever
the same may be located;
(c) Together with all easements, rights of way, gores of land, streets,
ways, alleys, passages, sewer rights, waters, water courses, water
rights and powers, and all estates, leases, subleases, licenses,
rights, titles, interest, privileges, liabilities, tenements,
hereditaments, and appurtenances whatsoever, in any way belonging,
relating or appertaining to any of the property hereinabove
described, or which hereafter shall in any way belong, relate or be
appurtenant thereto, whether now owned or hereafter acquired by the
Borrower, and
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LOAN NO.________________ THIS INSTRUMENT ________________________
PREPARED BY: ________________________
________________________
____ /33-2265 (5/89) ________________________
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the reversion and reversions, rents, issues and profits thereof, and
all the estate, right, title, interest, property, possession, claim
and demand whatsoever at law, as well as in equity, of the Borrower
of, in and to the same, including but not limited to:
(i) All rents, royalties, profits, issues and revenues of the
Mortgaged Property from time to time accruing, whether under
leases or tenancies now existing or hereafter created; and
(ii) All judgments, awards of damages and settlements hereafter
made resulting from condemnation proceedings of the taking of
the Mortgaged Property or any part thereof under the power of
eminent domain, or for any damage (whether caused by such
taking or otherwise) to the Mortgaged Property or the
improvements thereon or any part thereof, or to any rights
appurtenant thereto, including any award for change of grade
or streets. Lender is hereby authorized on behalf of and in
the name of Borrower to execute and deliver valid acquittances
for, and appeal from, any such judgments or awards. Lender may
apply all such sums or any part thereof so received, after the
payment of all its expenses, including costs and attorneys'
fees, on any of the indebtedness secured hereby in such manner
as it elects or, at its option, the entire amount or any part
thereof so received may be released.
(d) All cash proceeds and all products of any of the foregoing items or
types of property described in (a), (b) or (c) above, including, but
not limited to, all insurance, contract and tort proceeds and
claims.
TO HAVE AND TO HOLD the Mortgaged Property and all parts thereof unto the
Lender, its successors and assigns forever, subject however to the terms and
conditions herein;
PROVIDED HOWEVER, that these presents are upon the condition that, if the
Borrower shall fully pay or cause to be fully paid to the Lender the principal
and interest payable in respect to the Note, and any extensions, renewals,
modifications and refinancings of same, at the times and in the manner
stipulated therein and herein, all without any deduction or credit for taxes or
other similar charges paid by the Borrower, and shall pay all charges incurred
herein by Lender on account of Borrower, including, but not limited to,
attorneys' fees, and shall pay any and all Other Indebtedness, and shall keep,
perform and observe all and singular the covenants, conditions and agreements in
this Mortgage, in the Note, in the Loan Documents, and in the Other Indebtedness
Instruments expressed to be kept, performed, and observed by or on the part of
the Borrower, all without fraud or delay, then this Mortgage, and all the
properties, interest and rights hereby granted, bargained, sold and conveyed
shall cease, terminate and be void, but shall otherwise remain in full force and
effect.
AND the Borrower further represents, warrants, covenants and agrees with
the Lender as follows:
ARTICLE I
GENERAL
1.01 Performance of Mortgage, Note and Loan Documents. The Borrower shall
perform, observe and comply with all provisions hereof, and of the Note, and of
the Loan Documents, and of the Other Indebtedness Instruments, and shall duly
and punctually pay to the Lender the sum of money expressed in the Note, with
interest thereon,, and all other sums required to be paid by the Borrower
pursuant to the provisions of this Mortgage, of the Note, of the Loan Documents,
and of the Other Indebtedness Instruments, all without any deductions or credit
for taxes or other similar charges paid by the Borrower.
1.02 Warranty of Title. Borrower hereby warrants that, subject to any
exceptions described on Exhibit A, it is lawfully seized of an indefeasible
estate in fee simple in the land and real property hereby Mortgaged, or is
lawfully seized of such other estate or interest as is described on Exhibit A
hereto, and has good and absolute title to all existing personal property hereby
granted as security, and has good right, full power and lawful authority to
sell, convey, mortgage and grant a security interest in the same in the manner
and form aforesaid; that the same is free and clear of all grants,
reservations, security interests, liens, charges, and encumbrances whatsoever,
including, as to the personal property and fixtures, conditional sales
contracts, chattel mortgages, security agreements, financing statements, and
anything of a similar nature, and that Borrower shall and will warrant and
forever defend the title thereto and the quite use and enjoyment thereof unto
the Lender, its successors and assigns, against the lawful claims of all persons
whomsoever.
1.03 Further Advances, Revolving and Open-End Loans, and Other Debts. It
is expressly understood that this Mortgage is intended to and does secure not
only the Loan, but also future advances and any and all Other Indebtedness,
obligations and liabilities, direct or contingent, of the Borrower to the
Lender, whether now existing or hereafter arising, and any and all extensions,
renewals, modifications and refinancings of same, of any part thereof, existing
at any time before actual cancellation of this instrument on the probate records
of the county or counties where the Mortgaged Property is located, and whether
the same be evidenced by note, open account, assignment, endorsement, guaranty,
pledge or otherwise. The Loan and the Other Indebtedness may, if provided in the
applicable loan instruments, provide for revolving or open-end loans and
advances, all of which shall be secured by this Mortgage.
Page 2
1.05 Other Taxes, Utilities and Liens.
(a) The Borrower shall pay promptly, when and as due, and, if requested,
will exhibit promptly to the Lender receipts for the payment of all taxes,
assessments, water rates, utility charges, dues, charges, fines, penalties,
costs and other expenses incurred, and impositions of every nature whatsoever
imposed, levied or assessed or to be imposed, levied or assessed upon or against
the Mortgaged Property or any part thereof or upon the revenues, rents, issues
and profits of the Mortgaged Property or arising in respect of the occupancy,
use or possession thereof, or upon the interest of the Lender in the Mortgaged
Property (other than any of the same for which provisions has been made in
paragraph 1.04 of this Article I), or any charge which, if unpaid, would become
a lien or charge upon the Mortgaged Property.
(b) The Borrower promptly shall pay and shall not suffer any mechanic's,
laborer's, statutory or other lien to be created or to remain outstanding upon
any of the Mortgaged Property.
(c) In the event of the passage of any state, federal, municipal or other
governmental law, order, rule or regulation, subsequent to the date hereof, in
any manner changing or modifying the laws now in force governing the taxation of
mortgages or debts secured by mortgages or the manner of collecting taxes, then
Borrower immediately shall pay any increased taxes if allowed by law, and if
Borrower fails to pay such additional taxes, or if Borrower is prohibited from
paying such taxes, or if Lender in any way is adversely affected by such law,
order, rule or regulation, then in any of such events, all indebtedness secured
by this Mortgage and all interest accrued thereon shall without notice become
due and payable forthwith at the option of the Lender.
1.06 Insurance.
(a) The Borrower shall procure for, deliver to, and maintain for the
benefit of the Lender during the terms of this Mortgage insurance policies in
such amounts as the Lender shall require, insuring the Mortgaged Property
against fire, extended coverage, war damage (if available), and such other
insurable hazards, casualties and contingencies as the Lender may require. The
form of such policies and the companies issuing them shall be acceptable to the
Lender, and, unless otherwise agreed by the Lender in writing, shall provide for
coverage without coinsurance or deductibles. All policies shall contain a New
York standard, non-contributory mortgage endorsement making losses payable to
the Lender, as mortgagee. At least fifteen (15) days prior to the expiration
date of all such policies, renewals thereof satisfactory to the Lender shall be
delivered to the Lender. The Borrower shall deliver to the Lender receipts
evidencing the payment of all such insurance policies and renewals. In the event
of the foreclosure of this Mortgage or any transfer of title to the Mortgaged
Property in partial or full extinguishment of the indebtedness secured hereby,
all right, title and interest of the Borrower, or its assigns, in and to all
insurance policies then in force shall pass to the purchase or grantee.
(b) The Lender is hereby authorized and empowered, at its option, to
adjust or compromise any loss under any insurance policies on the Mortgaged
Property, and to collect and receive the proceeds from any such policy or
policies. Each insurance company is hereby authorized and directed to make
payment for all such losses directly to the Lender instead of to the Borrower
and Lender jointly. After deducting from said insurance proceeds any expenses
incurred by Lender in the collection or handling of said funds, the Lender may
apply the net proceeds, at its option, either toward repairing or restoring the
improvements on the Mortgaged Property, or as a credit on any portion of the
Borrower's indebtedness selected by Lender, whether then matured or to mature in
the future, or at the option of the Lender, such sums either wholly or in part
may be used to repair such improvements, or to build new improvements in their
place or for any other purpose and in a manner satisfactory to the Lender, all
without affecting the lien of this Mortgage for the full amount secured hereby
before such payment took place. Lender shall not be liable to Borrower or
otherwise responsible for any failure to collect any insurance proceeds due
under the terms of any policy regardless of the cause of such failure.
1.07 Condemnation. If all or any part of the Mortgaged Property shall be
damaged or taken through condemnation (which term when used in this Mortgage
shall include any damage or taking by any governmental or private authority, and
any transfer by private sale in lieu thereof), either temporarily or
permanently, the entire indebtedness secured hereby shall at the option of the
Lender become immediately due and payable. The Lender shall be entitled to all
compensation, awards, and other payments or relief for any condemnation and is
hereby authorized, at its option, to commence, appear in and prosecute, in its
own or the Borrower's name, any action or proceeding relating to any
condemnation, and to settle or compromise any claim in connection therewith. All
such compensation, awards, damages, claims, rights of action and proceeds and
the right thereto are hereby assigned by the Borrower to the Lender, which,
after deducting therefrom all its expenses, including attorneys' fees, may
release any moneys so received by it without affecting the lien of this Mortgage
or may apply the same in such manner as the Lender shall determine to the
reduction of the indebtedness secured hereby, and any balance of such moneys
then remaining shall be paid to the Borrower. The Borrower agrees to execute
such further assignments of any compensations, awards, damages, claims, rights
of action and proceeds as the Lender may require. The Borrower shall promptly
notify the Lender in the event of the institution of any condemnation or eminent
domain proceeding or in the event of any threat thereof. The Lender shall be
entitled to retain, at the expense of Borrower, its own legal counsel in
connection with any such proceedings or threatened proceedings. Lender shall be
under no obligation to the Borrower or to any other person to determine the
sufficiency or legality of any condemnation award and may accept any such award
without question or further inquiry.
1.08 Care of the Property.
(a) The Borrower will preserve and maintain the Mortgaged Property in good
condition and repair, and will not commit or suffer any waste and will not do or
suffer to be done anything which will increase the risk of fire or other hazard
to the Mortgaged Property or any part thereof.
(b) Except as otherwise provided herein, no buildings, fixtures, personal
property, or other part of the Mortgaged Property shall be removed, demolished
or substantially altered without the prior written consent of the Lender.
Page 3
(c) If the Mortgaged Property or any part thereof is damaged by fire or
any other cause, the Borrower will give immediate written notice of the same to
the Lender.
(d) The Lender is hereby authorized to enter upon and inspect the
Mortgaged Property, and to inspect the Borrower's or Borrower's agent's records
with respect to the ownership, use, management and operation of the Mortgaged
Property, at any time during normal business hours.
(e) The Borrower will promptly comply with all present and future laws,
ordinances, rules, regulations, orders and decrees of any governmental authority
affecting the Mortgaged Property or any part thereof.
(f) If all or any part of the Mortgaged Property shall be damaged by fire
or other casualty, the Borrower will promptly restore the Mortgaged Property to
the equivalent of its original condition, regardless of whether or not there
shall be any insurance proceeds therefor; provided, however, that if there are
insurance proceeds, the Borrower shall not be required to restore the Mortgaged
Property as aforesaid unless the Lender shall apply any net proceeds from the
casualty in question and held by Lender, as allowed under Paragraph 1.06, toward
restoring the damaged improvements. If a part of the Mortgaged Property shall be
physically damaged through condemnation, the Borrower will promptly restore,
repair or alter the remaining property in a manner satisfactory to the Lender;
provided, however, that if there are condemnation proceeds or awards, the
Borrower shall not be required to store the Mortgaged Property as aforesaid
unless the Lender shall apply any net proceeds or awards from the condemnation
and held by Lender, as provided in Paragraph 1.07, toward restoring the damaged
improvements.
1.09 Further Assurances; After-Acquired Property.
(a) At any time, and from time to time, upon request by the Lender, the
Borrower, at Borrower's expense, will make, execute and deliver or cause to be
made, executed and delivered to the Lender and, where appropriate, to cause to
be recorded and/or filed and from time to time thereafter to be re-recorded
and/or refiled at such time and in such offices and places as shall be deemed
desirable by the Lender any and all such other and further mortgages,
instruments of further assurance, certificates and other documents as may, in
the opinion of the Lender, be necessary or desirable in order to effectuate,
complete, or perfect, or to continue and preserve the obligation of the Borrower
under the Note and this Mortgage, and the priority of this Mortgage as a first
and prior lien upon all of the Mortgaged Property, whether now owned or
hereafter acquired by the Borrower. Upon any failure by the Borrower so to do,
the Lender may make, execute, and record any and all such mortgages,
instruments, certificates, and documents for and in the name of the Borrower and
the Borrower hereby irrevocably appoints the Lender the agent and
attorney-in-fact of the Borrower so to do. The lien and rights hereunder
automatically will attach, without further act, to all after-acquired property
(except consumer goods, other than accessions, not acquired within ten (10) days
after the Lender has given value under the Note) attached to and/or used in the
operation of the Mortgaged Property or any part thereof.
(b) Without limitation to the generality of the other provisions of this
Mortgage, including subparagraph (a) of this Paragraph 1.09, it hereby expressly
is covenanted, agreed and acknowledged that the lien and rights hereunder
automatically will attach to any further, greater, additional, or different
estate, rights, titles or interests in or to any of the Mortgaged Property at
any time acquired by the Borrower by whatsoever means, including that in the
event that the Borrower is the owner of an estate or interest in the Mortgaged
Property or any part thereof (such, as for example, as the lessee or tenant)
other than as the fee simple owner thereof, and prior to the satisfaction of
record of this Mortgage the Borrower obtains or otherwise acquired such fee
simple or other estate, then such further, greater, additional, or different
estate in the Mortgaged Property, or a part thereof, shall automatically, and
without any further action or filing or recording on the part of the Borrower or
the Lender or any other person or entity, be and become subject to this Mortgage
and the lien hereof. In consideration of Lender making the Loan as aforesaid,
and to secure the same indebtedness and obligations set forth above, Borrower
hereby grants, bargains, sells and conveys to Lender, on the same terms as set
forth in this Mortgage and intended to be a part hereof, all such after-acquired
property and estates.
1.10 Applicable of Funds; Default. On an Event of Default, the Lender may,
in addition to any other rights provided by this Mortgage or any other of the
Loan Documents, but shall not be obligated to, apply to the payment of the Note
or Other Indebtedness secured hereby, and in such manner as the Lender may
determine, any such monies, securities or other property of the Borrower held or
controlled by the Lender. No such application of funds shall, unless otherwise
expressly agreed by the Lender in writing, reduce, alter, delay or otherwise
affect any regularly schedules payment with respect to the Note or such Other
Indebtedness or obligations.
1.11 Leases Affecting Mortgaged Property. The Borrower shall comply with
and observe its obligations as landlord or tenant under all leases affecting the
Mortgaged Property or any part thereof. If requested by Lender, Borrower will
furnish Lender with executed copies of all leases now or hereafter created on
the Mortgaged Property; and all leases nor or hereafter entered into will be in
form and substance subject to the approval of Lender. Borrower will not accept
payment of rent more than one (1) month in advance without the express written
consent of Lender. If requested by the Lender, the Borrower will execute and
deliver to Lender, as additional security, such other documents as may be
requested by Lender to further evidence the assignment to Lender hereunder, and
to assign any and all such leases whether now existing or hereafter created,
including, without limitation, all rents, royalties, issues and profits of the
Mortgaged Property from time to time accruing. The Borrower shall not cancel,
surrender or modify any lease affecting the Mortgaged Property or any part
thereof without the written consent of the Lender.
1.12 Expenses. The Borrower will pay or reimburse the Lender for all
reasonable attorneys' fees, costs and expenses incurred by the Lender in
connection with the collection of the indebtedness secured hereby or the
enforcement of any rights or remedies provided for in its Mortgage, in any of
the Loan Documents or the Other Indebtedness Instruments, or as may otherwise be
provided by law, or incurred by Lender in any proceeding involving the estate of
a decedent or an insolvent, or in any action, proceeding or dispute of any kind
in which the Lender is made a party, or appears
Page 4
as party plaintiff or defendant, affecting this Mortgage, the Note, any of the
Loan Documents, any of the Other Indebtedness Instruments, Borrower or the
Mortgaged Property, including but not limited to the foreclosure of this
Mortgage, any condemnation action involving the Mortgaged Property, any
environmental condition of or affecting the Mortgaged Property, or any action to
protect the security hereof; and any such amounts paid or incurred by the Lender
shall be added to the indebtedness secured hereby and shall be further secured
by this Mortgage.
1.13 Performance by Lender of Defaults by Borrower. If the Borrower shall
default in the payment of any tax, lien, assessment or charge levied or assessed
against the Mortgaged Property, or otherwise described in Paragraphs 1.04 and
1.05 hereof; in the payment of any utility charge, whether public or private; in
the payment of insurance premiums; in the procurement of insurance coverage and
the delivery of the insurance policies required hereunder; or in the performance
or observance of any other covenant, condition or term of this Mortgage, of the
Note, of any of the Loan Documents, or of any of the Other Indebtedness
Instruments, then the Lender, at its option, may perform or observe the same;
and all payments made for costs or expenses incurred by the Lender in connection
therewith shall be secured hereby and shall be, without demand, immediately
repaid by the Borrower to the Lender with interest thereon calculated in the
manner and at the rate set forth in the Note, plus two percentage points (2%).
The Lender shall be the sole judge of the legality, validity and priority of any
such tax, lien, assessment, charge, claim and premium, of the necessity for any
such actions and of the amount necessary to be paid in satisfaction thereof. The
Lender is hereby empowered to enter and to authorize others to enter upon the
Mortgaged Property or any part thereof for the purpose of performing or
observing any such defaulted covenant, condition or term, without thereby
becoming liable to the Borrower or any person in possession holding under the
Borrower for trespass or otherwise.
1.15 Estoppel Affidavits. The Borrower within ten (10) days after written
request from the Lender shall furnish a written statement, duly acknowledged,
setting forth the unpaid principal of an interest on the Note and Other
Indebtedness and whether or not any offsets or defenses exist against any
principal and interest.
1.16 Alienation or Sale or Mortgaged Property. The Borrower shall not
sell, assign, mortgage, encumber, grant a security interest in or otherwise
convey all or any part of the Mortgaged Property, or any of the rents thereof,
without obtaining the express written consent of the Lender at least thirty (30)
days prior to such conveyance. If Borrower should sell, assign, mortgage,
encumber, grant a security interest in or convey all, or any part of, the
Mortgaged Property, or any of the rents thereof, without such consent by Lender,
then, in such event, the entire balance of the indebtedness (including the Loan
and all Other Indebtedness) secured by this Mortgage and all interest accrued
thereon (or such parts as Lender may elect) shall without notice become due and
payable forthwith at the option of the Lender.
1.17 Environmental Matters. Borrower represents, warrants and covenants as
follows:
(a) No Hazardous Materials (hereinafter defined) have been, are, or will
be while any part of the indebtedness secured this Mortgage remains unpaid,
contained in, treated, stored, handled, located on, discharged from, or disposed
of on, or constitute a part of, the Mortgaged Property. As used herein, the term
"Hazardous Materials" include without limitation, any asbestos, urea
formaldehyde foam insulation, flammable explosives, radioactive materials,
hazardous materials, hazardous wastes, hazardous or toxic substances, or related
or unrelated substances or materials defined, regulated, controlled, limited or
prohibited in the Comprehensive Environmental Response Compensation and
Liability Act of 1980 (CERCLA), as amended (42 U.S.C. Sections 9601, et seq.),
the Hazardous Materials Transportation Act, as amended (49 U.S.C. Sections 1801
et seq.), the Resource Conservation and Recovery Act (RCRA), as amended (42
U.S.C. Sections 6901, et seq.), the Clean Water Act, as amended (33 U.S.C.
Sections 1251, et seq.), the Clean Air Act, as amended (42 U.S.C. Sections 7401,
et seq.), the Toxic Substances Control Act, as amended (15 U.S.C. Sections 2601,
et seq.), and in the rules and regulations adopted and publications promulgated
pursuant thereto, and in the rules and regulations of the Occupational Safety
and Health Administration (OSHA) pertaining to occupational exposure to
asbestos, as amended, or in any other federal, state or local environmental law,
ordinance, rule, or regulation now or hereafter in effect;
(b) No underground storage tanks, whether in use or not in use, are
located in, on or under any part of the Mortgaged Property;
(c) All of the Mortgaged Property complies and will comply in all respects
with applicable environmental laws, rules, regulations, and court or
administrative orders;
(d) There are no pending claims or threats of claims by private or
governmental or administrative authorities relating to environmental impairment,
conditions, or regulatory requirements with respect to the Mortgaged Property;
and
(e) Borrower shall give immediate oral and written notice to Bank of its
receipt of any notice of a violation of any law, rule or regulation covered by
this Paragraph 1.17, or of any notice of other claim relating to the
environmental condition of the Mortgaged Property, or of its discovery of any
matter which would make the representations, warranties and/or covenants herein
to be inaccurate or misleading in any respect.
Borrower hereby agrees to indemnify and hold Lender harmless from all
loss, cost, damage, claim and expense incurred by Lender on account of (i) the
violation of any representation, warranty or covenant set forth in this
Paragraph 1.17, (ii) Borrower's failure to perform any obligations of this
Paragraph 1.17, (iii) Borrower's or the Mortgaged Property's failure to fully
comply with all environmental laws, rules and regulations, or with all
occupational health and safety laws, rules and regulations, or (iv) any other
matter related to environmental conditions on, under or affecting the Mortgaged
Property. This indemnification shall survive the closing of the Loan, payment of
the Loan, the exercise of any right or remedy under any Loan Document, any
subsequent sale or transfer of the Mortgaged Property, and all similar or
related events or occurrences.
ARTICLE II
ASSIGNMENT OF RENTS AND LEASES
2.01 Assignment. Borrower, in consideration of Lender's making the Loan as
aforesaid and for other good and valuable consideration, and to secure the
prompt payment of same, with the interest thereon, and any extensions, renewals,
modifications and refinancings of same, and any charges herein incurred by
Lender on account of Borrower, including but not limited to attorneys' fees, and
any and all Other Indebtedness, and further
Page 5
to secure the performance of the covenants, conditions and agreements
hereinafter set forth and set forth in the Note, in the Loan Documents, and in
the Other Indebtedness Instruments, does hereby sell, assign and transfer unto
the Lender all leases and subleases of all or part of the Mortgaged Property,
including without limitation those certain leases, if any, specifically
described on an exhibit to this Mortgage, and all the rents, issues and profits
now due and which may hereafter become due under or by virtue of any such lease,
whether written or verbal, or any letting of, or of any agreement for the use or
occupancy of the Mortgaged Property or any part thereof, which may have been
heretofore or may be hereafter made or agreed to or which may be made or agreed
to by the Lender under the powers herein granted, it being the intention of the
parties to hereby establish an absolute transfer and assignment of all the said
leases, subleases and agreements, and all the avails thereof, to the Lender, and
the Borrower does hereby appoint irrevocably the Lender its true and lawful
attorney in its name and stead (with or without taking possession of the
aforesaid Mortgaged Property as hereinafter provided), to rent, lease or let all
or any portion of the Mortgaged Property to any party or parties at such rental
and upon such term, in its discretion as it may determine, and to collect all of
said avails, rents, issues and profits arising from or accruing at any time
hereafter, and all now due, or that may hereafter become due under each and all
of the leases, subleases and agreements, written or verbal, or other tenancy
existing or which may hereafter exist on the Mortgaged Property, with the same
rights and powers and subject to the same immunities, exoneration of liability
and rights of recourse and indemnity as the Lender would have upon taking
possession of the Mortgaged Property pursuant to the provisions hereinafter set
forth.
2.02. Prepayment of Rent. The Borrower represents and agrees that no rent
has been or will be paid by any person in possession of any portion of the
Mortgaged Property for more than one installment in advance and that the payment
of none of the rents to accrue for any portion of said Mortgaged of said
Mortgaged Property has been or will be waived, released, reduced, or discounted,
or otherwise discharged or compromised by the Borrower. The Borrower waives any
right of setoff against any person in possession of any portion of the Mortgaged
Property. The Borrower agrees that it will not assign any of the rents or
profits except to the purchaser or grantee of the Mortgaged Property.
2.03 Not Mortgagee in Possession; No Liability. Nothing herein contained
shall be construed as constituting the Lender as "mortgagee in possession" in
the absence of the taking of actual possession of the Mortgaged Property by the
Lender pursuant to the provisions hereinafter contained. In the exercise of the
powers herein granted the Lender, no liability shall be asserted or enforced
against the Lender, all such liability being expressly waived and released by
the Borrower.
2.04 Present Assignment. Although it is the intention of the parties that
this assignment of rents and leases shall be a present assignment, it is
expressly understood and agreed, anything herein contained to the contrary
notwithstanding, that the Lender shall not exercise any of the rights and powers
conferred upon it in this Article II until and unless an Event of Default shall
occur under this Mortgage.
2.05 No Obligation of Lender Under Leases. The Lender shall not be
obligated to perform or discharge, nor does it hereby undertake to perform or
discharge, any obligation, duty or liability under any leases, subleases or
rental agreements relating to the Mortgaged Property, and the Borrower shall and
does hereby agree to indemnify and hold the Lender harmless of and from any and
all liability, loss or damage which it may or might incur under any leases,
subleases or agreements or under or by reason of the assignment thereof and of
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 said leases,
subleases or agreements. Should the Lender incur any such liability, loss or
damage, under said leases or under or by reason of the assignment thereof, or in
the defense of any claims or demands asserted against the Lender in connection
with any one or more of said leases, subleases or agreements, the Borrower
agrees to reimburse the Lender for the amount thereof, including costs, expenses
and reasonable attorneys' fees immediately upon demand, and until the same are
fully reimbursed by the Borrower, all such costs, expenses and attorneys' fees
shall be secured by the assignment hereunder and by this Mortgage.
2.06 Instruction to Lessees. The Borrower does further specifically
authorize and instruct each and every present and future lessee, tenant,
sublessee or subtenant of the whole or any part of the Mortgaged Property to pay
all unpaid rental agreed upon in any lease, sublease or tenancy to the Lender
upon receipt of demand for said Lender to pay the same.
2.07 Default (Assignment). Upon the occurrence of any Event of Default, as
described in paragraph 4.01 of this Mortgage, then Lender shall have all rights
and remedies set forth in Article IV or elsewhere in this Mortgage.
ARTICLE III
SECURITY AGREEMENT
Page 6
ARTICLE IV
EVENTS OF DEFAULT AND REMEDIES
4.01 Event of Default. The term "Event of Default", wherever used in this
Mortgage, shall mean the occurrence or existence of any one or more of the
following events or circumstances:
(a) Failure by the Borrower to pay as and when due and payable any
installment of principal, interest or escrow deposit, or other charge payable
under the Note, this Mortgage or under any other Loan Document; or
(b) Failure by the Borrower to duly observe any other covenant, condition
or agreement of this Mortgage, of the Note, of any of the Loan Documents, or of
any of the Other Indebtedness Instruments, and the continuance of such failure
for ten (10) days or more; or
(c) The filing by the Borrower or any guarantor of any indebtedness
secured hereby or of any of Borrower's obligations hereunder, of a voluntary
petition in bankruptcy or the Borrower's or any such guarantor's adjudication as
a bankrupt or insolvent, or the filing by the Borrower or any such guarantor of
any petition or answer seeking or acquiescing in any reorganization,
arrangement, composition, readjustment, liquidation, dissolution or similar
relief for itself under any present or future federal, state or other statute,
law or regulation relating to bankruptcy, insolvency or other relief for
debtors, or the Borrower's or any such guarantor's seeking or consenting to or
acquiescence in the appointment of any trustee, receiver or liquidator of the
Borrower or any such guarantor or of all or any substantial part of the
Mortgaged Property or of any or all of the rents, revenues, issues, earnings,
profits or income thereof, or of any interest or estate therein, or the making
of any general assignment for the benefit of creditors or the admission in
writing of its inability to pay its debts generally as they become due; or
(d) The entry by a court of competent jurisdiction or any order, judgment,
or decree approving a petition filed against the Borrower or any guarantor of
any of the indebtedness secured hereby or of any of Borrower's obligations
hereunder, seeking any reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under any present of future federal,
state or other statute, law or regulation relating to bankruptcy, insolvency or
other relief for debtors, which order, judgment or decree remains unvacated and
unstayed for an aggregate of thirty (30) days (whether or not consecutive) from
the date of entry thereof, or the appointment of any trustee, receiver or
liquidator of the Borrower or any such guarantor or of all or any substantial
part of the Mortgaged Property or of any or all of the rents, revenues, issues,
earnings, profits or income thereof, or of any interest or estate therein,
without the consent or acquiescence of the Borrower and/or any such guarantor
which appointment shall remain unvacated and unstayed for an aggregate of thirty
(30) days (whether or not consecutive); or
(e) The filing or enforcement of any other mortgage, lien or encumbrance
on the Mortgaged Property or any part thereof, or of any interest or estate
therein; or
(f) If any portion of the Mortgaged Property is a leasehold estate, the
occurrence of a default under such lease or other instrument creating the
estate.
4.02 Acceleration of Maturity. If an Event of Default shall have occurred,
then the entire balance of the indebtedness (including but not limited to the
Loan and the Other Indebtedness) secured hereby (or such parts as Lender may
elect) with interest accrued thereon (or such parts as Lender may elect) shall,
at the option of the Lender, become due and payable without notice or demand,
time being of the essence. Any omission on the part of the Lender to exercise
such option when entitled to do so shall not be considered as a waiver of such
right.
4.03 Right of Lender to Enter and Take Possession.
(a) If an Event of Default shall have occurred and be continuing, the
Borrower, upon demand of the Lender, shall forthwith surrender to the Lender the
actual possession of the Mortgaged Property, and if and to the extent permitted
by law, the Lender of its agents may enter and take and maintain possession of
all the Mortgaged Property, together with all the documents, books, records,
papers and accounts of the Borrower or then owner of the Mortgaged Property
relating thereto, and may exclude the Borrower and its agents and employees
wholly therefrom.
(b) Upon every such entering upon or taking possession, the Lender, as
attorney-in-fact or agent of the Borrower, or in its own name as mortgagee and
under the powers herein granted, may hold, store, use, operate, manage and
control the Mortgaged Property (or any portion thereof selected by Lender) and
conduct the business thereof either personally or by its agents, and, from time
to time (i) make all necessary and proper
Page 7
maintenance, repairs, renewals, replacements, additions, betterments and
improvements thereto and thereon and purchase or otherwise acquire additional
fixtures, personalty and other property; (ii) insure or keep the Mortgaged
Property (or any portion thereof selected by Lender) insured; (iii) manage and
operate the Mortgaged Property (or any portion thereof selected by Lender) and
exercise all the rights and powers of the Borrower in its name or otherwise,
with respect to the same, including legal actions for the recovery of rent,
legal dispossessory actions against tenants holding over and legal actions in
distress of rent, and with full power and authority to cancel or terminate any
lease or sublease for any cause or on any ground which would entitle the
Borrower to cancel the same, and to elect to disaffirm any lease or sublease
made subsequent to this Mortgage or subordinated to the lien hereof; (iv) enter
into any and all agreements with respect to the exercise by others of any of the
powers herein granted the Lender, all as the Lender from time to time may
determine to be to its best advantage; and the Lender may collect and receive
all the income, revenues, rents, issues and profits of the Mortgaged Property
(or any portion thereof selected by Lender), including those past due as well as
those accruing thereafter, and, after deducting (aa) all expenses of taking,
holding, managing, and operating the Mortgaged Property (including compensation
for the services of all persons employed for such purposes); (bb) the cost of
all such maintenance, repairs, renewals, replacements, additions, betterments,
improvements and purchases and acquisitions; (cc) the cost of such insurance;
(dd) such taxes, assessments and other charges prior to this Mortgage as the
Lender may determine to pay; (ee) other proper charges upon the Mortgaged
Property or any part thereof; and (ff) the reasonable compensation, expenses and
disbursements of the attorneys and agents of the Lender; shall apply the
remainder of the moneys so received by the Lender, first to the payment of
accrued interest under the Note; second to the payment of tax deposits required
in Paragraph 1.04; third to the payment of any other sums required to be paid by
Borrower under this Mortgage or under the Loan Documents; fourth to the payment
of overdue installments of principal on the Note; fifth to the payment of any
sums due under Other Indebtedness Instruments, whether principal, interest or
otherwise; and the balance, if any, as otherwise required by law.
(c) Whenever all such Events of Default have been cured and satisfied, the
Lender may, at its option, surrender possession of the Mortgaged Property to the
Borrower, or to whomsoever shall be entitled to possession of the Mortgaged
Property as a matter of law. The same right of taking possession, however, shall
exist if any subsequent Event of Default shall occur and be continuing.
4.04 Receiver
(a) If an Event of Default shall have occurred and be continuing, the
Lender, upon application to a court of competent jurisdiction, shall be entitled
without notice and regard to the adequacy of any security for the indebtedness
hereby secured or the solvency of any party bound for its payment, to the
appointment of a receiver to take possession of and to operate the Mortgaged
Property and to collect the rents, profits, issues, royalties and revenues
thereof.
(b) The Borrower shall pay to the Lender upon demand all costs and
expenses, including receiver's fees, attorneys' fees, costs and agent's
compensation, incurred pursuant to the provisions contained in this Paragraph
2.04; and all such expenses shall e secured by this Mortgage.
4.05 Lender's Power of Enforcement. If an Event of Default shall have
occurred and be continuing, the Lender may, either with or without entry or
taking possession as hereinabove provided or otherwise, proceed by suit or suits
at law or in equity or any other appropriate proceeding or remedy (a) to enforce
payment of the Note; (b) to foreclose this Mortgage; (c) to enforce or exercise
any right under any Other Indebtedness Instrument; and (d) to pursue any other
remedy available to Lender, all as the Lender may elect.
4.06 Rights of a Secured Party. Upon the occurrence of an Event of
Default, the Lender, in addition to any and all remedies it may have or exercise
under this Mortgage, the note, the Loan Documents, the Other Indebtedness
Instruments or under applicable law, may immediately and without demand,
exercise any and all of the rights of a secured party upon default under the
Uniform Commercial Code, all of which shall be cumulative. Such rights shall
include, without limitation:
(a) The right to take possession of the Collateral without judicial
process and to enter upon any premises where the Collateral may be located for
the purposes of taking possession of, securing, removing, and/or disposing of
the Collateral without interference from Borrower and without any liability for
rent, storage, utilities or other sums;
(b) The right to sell, lease, or otherwise dispose of any or all of the
Collateral, whether in its then condition or after further processing or
preparation, at public sale, and unless the Collateral is perishable or
threatens to decline speedily in value or is of a type customarily sold on a
recognized market, Lender shall give to Borrower at least ten (10) days' prior
notice of the time and place of any public sale of the Collateral or of the time
after which any private sale or other intended disposition of the Collateral is
to be made, all of which Borrower agrees shall be reasonable notice of any sale
or disposition of the Collateral;
(c) The right to require Borrower, upon request of Lender, to assemble and
make the Collateral available to Lender at a place reasonably convenient to
Borrower and Lender; and
(d) The right to notify account debtors, and demand and receive payment
therefrom.
To effectuate the rights and remedies of Lender upon default, Borrower
does hereby irrevocably appoint Lender attorney-in-fact for Borrower, with full
power of substitution to sign, execute, and deliver any and all instruments and
documents and do all acts and things to the same extent as Borrower could do,
and to sell, assign, and transfer any collateral to Lender or any other party.
4.07 Power of Sale. If an Event of Default shall have occurred Lender may
sell the Mortgaged Property to the highest bidder at public auction in front of
the courthouse door in the county or counties, as may be required, where the
Mortgaged Property is located, either in person or by auctioneer, after having
first given notice of the time, place and terms of sale, together with a
description of the property to be sold, by publication once a week for three (3)
successive weeks prior to said sale in some newspaper published in said county
or counties, as may be required, and, upon payment of the purchase money, Lender
or any person conducting the sale for Lender is authorized to execute to the
purchaser at said sale a deed to the Mortgaged Property so purchased. Lender may
bid at said sale and purchase the Mortgaged Property, or any part thereof, if
the highest bidder therefor. At the foreclosure sale the Mortgaged Property may
be offered for sale and sold as a whole without first offering it in any other
manner or may be offered for sale and sold in any other manner as Lender may
elect. The provisions of Paragraph 4.06 of this Mortgage shall apply with
respect to Lender's enforcement of rights or interests in personal property
which constitutes Mortgaged Property hereunder.
4.08 Application of Foreclosure or Sale Proceeds. The proceeds of any
foreclosure sale pursuant to Paragraph 4.07, or any sale pursuant to Paragraph
4.06 shall be applied as follows:
Page 8
(a) First, to the costs and expenses of (i) retaking, holding, storing and
processing the Collateral and preparing the Collateral or the Mortgaged Property
(as the case may be) for sale, and (ii) making the sale, including a reasonable
attorneys' fee for such services as may be necessary in the collection of the
indebtedness secured by this Mortgage or the foreclosure of this Mortgage;
(b) Second, to the repayment of any money, with interest thereon to the
date of sale at the applicable rate or rates specified in the Note, this
Mortgage, the Loan Documents or the Other Indebtedness instruments, as
applicable, which Lender may have paid, or become liable to pay, or which it may
then be necessary to pay for taxes, insurance, assessments or other charges,
liens, or debts as hereinabove provided, and as may be provided in the Note or
the Loan Documents, such repayment to be applied in the manner determined by
Lender;
(c) Third, to the payment of the indebtedness (including but not limited
to the Loan, and the Other Indebtedness) secured hereby, with interest to date
of sale at the applicable rate or rates specified in the Note, this Mortgage,
the Loan Documents or the Other Indebtedness Instruments, as applicable, whether
or not all of such indebtedness is then due;
(d) Fourth, the balance, if any, shall be paid as provided by law.
4.09 Lender's Option on Foreclosure. At the option of the Lender, this
Mortgage may be foreclosed as provided by law or in equity, in which event a
reasonable attorneys' fee shall, among other costs and expenses, be allowed and
paid out of the proceeds of the sale. In the event Lender exercises its option
to foreclose this Mortgage in equity, Lender may, at its option, foreclose this
Mortgage subject to the rights of any tenants of the Mortgaged Property, and the
failure to make any such tenants parties defendants to any such foreclosure
proceeding and to foreclose their rights will not be, nor be asserted to be by
the Borrower, a defense to any proceedings instituted by the Lender to collect
the sums secured hereby, or to collect any deficiency remaining unpaid after the
foreclosure sale of the Mortgaged Property.
4.10 Waiver of Exemption. Borrower waives all rights of exemption
pertaining to real or personal property as to any indebtedness secured by or
that may be secured by this Mortgage, and Borrower waives the benefit of any
statute regulating the obtaining of a deficiency judgment or requiring that the
value of the Mortgaged Property be set off against any part of the indebtedness
secured hereby.
4.11 Suits to Protect the Mortgaged Property. The Lender shall have power
(a) to institute and maintain such suits and proceedings as it may deem
expedient to prevent any impairment of the Mortgaged Property by any acts which
may be unlawful or in violation of this Mortgage; (b) to preserve or protect its
interest in the Mortgaged Property and in the income, revenues, rents and
profits arising therefrom; and (c) to restrain the enforcement of or compliance
with any legislation or other governmental enactment, rule or order that may be
unconstitutional or otherwise invalid, if the enforcement of or compliance with,
such enactment, rule or order would impair the security hereunder or be
prejudicial to the interest of the Lender.
4.12 Borrower to Pay the Note on any Default in Payment; Application of
Moneys by Lender. If default shall be made in the payment of any amount due
under this Mortgage, the Note, any of the Loan Documents or any of the Other
Indebtedness Instruments, or if any Event of Default shall occur under this
Mortgage, then, upon demand of the Lender, the Borrower shall pay to the Lender
the whole amount due and payable under the Note and under all Other Indebtedness
Instruments; and in case the Borrower shall fail to pay the same forthwith upon
such demand, the Lender shall be entitled to sue for and to recover judgment for
the whole amount so sue and unpaid together with costs, which shall include the
reasonable compensation, expenses and disbursements of the Lender's agents and
attorneys.
4.13 Delay or Omission No Waiver.. No delay or omission of the Lender or
of any holder of the Note to exercise any right, power or remedy accruing upon
any default shall exhaust or impair any such right, power or remedy or shall be
construed to be a waiver of any such default, or acquiescence therein; and every
right, power and remedy given by the Note, this Mortgage, the Loan Documents, or
the Other Indebtedness Instruments to the Lender may be exercised from time to
time and as often as may be deemed expedient by the Lender.
4.14 No Waiver of One Default to Affect Another. No waiver of any default
hereunder, under any of the Loan Documents, or under any of the Other
Indebtedness Instruments shall extend to or shall affect any subsequent or any
other then existing default or shall impair any rights, powers or remedies
consequent thereon.
If the Lender (a) grants forbearance or an extension of time for the
payment of any indebtedness secured hereby; (b) takes other or additional
security for the payment thereof; (c) waives or does not exercise any right
granted herein, in the Note, in any of the Loan Documents, or in any of the
Other Indebtedness Instruments; (d) releases any part of the Mortgaged Property
from this Mortgage or otherwise changes any of the terms of this Mortgage, the
Note, the Loan Documents or the Other Indebtedness Instruments; (e) consents to
the filing of any map, plat, or replat of or consents to the granting of any
easement on, all or any part of the Mortgaged Property; or (f) makes or consents
to any agreement subordinating the priority of this Mortgage, any such act or
omission shall not release, discharge, modify, change, or affect the original
liability under this Mortgage, the Note, the Loan Documents, or the Other
Indebtedness Instruments of the Borrower or any subsequent purchaser of the
Mortgaged Property or any part thereof, or any maker, co-signer, endorser,
surety or guarantor; nor shall any such act or omission preclude the Lender from
exercising any right, power or privilege herein granted or intended to be
granted in the event of any other default then made or of any subsequent
default, nor, except as otherwise expressly provided in an instrument or
instruments executed by the Lender shall the provisions of this Mortgage be
altered thereby. In the event of the sale or transfer by operation of law or
otherwise of all or any part of the Mortgaged Property, the Lender, without
notice to any person, corporation or other entity (except notice shall be given
to Borrower so long as Borrower remains liable under the Note, this Mortgage and
the Loan Documents) is hereby authorized and empowered to deal with any such
vendee or transferee with reference to the Mortgaged Property or the
indebtedness secured hereby, or with reference to any of the terms or conditions
hereof, or of the Loan Documents, as fully and to the same extent as it might
deal with the original parties hereto and without in any way releasing or
discharging any of the liabilities or undertakings hereunder.
4.15 Discontinuance of Proceedings - Position of Parties, Restored. In
case the Lender shall have proceeded to enforce any right or remedy under this
Mortgage by foreclosure, entry or otherwise, and such proceedings shall have
been discontinued or abandoned for any reason, or shall have been determined
adversely to the Lender, then and in every such case the Borrower and the Lender
shall be restored to their former positions and rights hereunder, and all
rights, powers and remedies of the Lender shall continue as if no such
proceeding had been taken.
4.16 Remedies Cumulative. No right, power, or remedy conferred upon or
reserved to the Lender by this Mortgage is intended to be exclusive of any other
right, power or remedy, but each and every such right, power and remedy shall be
cumulative and concurrent and shall be in addition to any other right, power and
remedy given hereunder, or under the Note, the Loan Documents, the Other
Indebtedness Instruments or now or hereafter existing at law or in equity or by
statute.
Page 9
ARTICLE V
MISCELLANEOUS
5.01 Binding Effect. Wherever in this Mortgage one of the parties hereto
is named or referred to, the heirs, administrators, executors, successors,
assigns, distributees, and legal and personal representatives of such party
shall be included, and all covenants and agreements contained in this Mortgage
by or on behalf of the Borrower or by or on behalf of Lender shall bind and
inure to the benefit of their respective heirs, administrators, executors,
successors, assigns, distributees, and legal and personal representatives,
whether so expressed or not. Notwithstanding the foregoing, the Borrower shall
not be entitled to assign any of its rights, titles, and interest hereunder, or
to delegate any of its obligations, liabilities, duties, or responsibilities
hereunder, and will not permit any such assignment or delegation to occur
(voluntarily or involuntarily, or directly or indirectly), without the prior
written consent of the Lender.
5.02 headings. The headings of the articles, sections, paragraphs and
subdivisions of this Mortgage are for convenience of reference only, are not to
be considered a part hereof, and shall not limit or otherwise affect any of the
terms hereof. "Herein," "hereby," "hereunder." "hereof," and other equivalent
words or phrases refer to this Mortgage and not solely to the particular portion
thereof in which any such word or phrase is used, unless otherwise clearly
indicated by the context.
5.03 Gender; Number. Whenever the context so requires, the masculine
includes the feminine and neuter, the singular includes the plural, and the
plural includes the singular.
5.04 Invalid Provisions to Affect No Others. In case any one or more of
the covenants, agreements, terms or provisions contained in this Mortgage, in
the Note, in the Loan Documents, or in the Other Indebtedness Instruments shall
be invalid, illegal or unenforceable in any respect, the validity of the
remaining covenants, agreements, terms or provisions contained herein, and in
the Note, the Loan Documents and the Other Indebtedness Instruments shall be in
no way affected, prejudiced or disturbed thereby.
5.05 Conflict in Loan Documents. In the event of conflict in the terms of
any provisions in this Mortgage, the Note, the Loan Documents, or the Other
Indebtedness Instruments, the terms of the provisions most favorable to the
Lender shall apply.
5.06 Instrument Under Seal. This Mortgage is given under the seal of all
parties hereto, and it is intended that this Mortgage is and shall constitute
and have the effect of a sealed instrument according to law.
5.07 Addresses and Other Information. The following information is
provided in order that this Mortgage shall comply with the requirements of the
Uniform Commercial Code, as enacted in the State of Alabama, for instruments to
be filed as financing statements.
(a) Name of Borrower (Debtor): EAGLE SUPPLY, INC.
Address of Borrower 1301 Fourth Avenue
Tampa, Florida 33605
(b) Name of Lender (Secured Party): COMPASS BANK
Address of Lender: Post Office Box 10566
Birmingham, Alabama 35296
Attention: Laura Clarke
(c) Record Owner of Real Estate
described on Exhibit A hereto: EAGLE SUPPLY, INC.
5.08 Rider. Additional provisions of this Mortgage, if any, are set forth
below or on a Rider attached hereto and made a part hereof.
See attached Rider to Future Advance Mortgage, Assignment of Rents
and leases and Security Agreement (Alabama).
5.09 Notwithstanding any provision herein to the contrary, the Borrower
hereunder is granting a security interest only in the real property described on
Exhibit "A" and the personalty so affixed thereto is to constitute a fixture.
5.10 Notwithstanding any provision herein to the contrary, this Mortgage
secured only indebtedness created under the Note or any extensions,
modifications or renewals thereof, and all references herein or in any other
Loan Documents to indebtedness and other indebtedness refer only to indebtedness
created under the Note, any extensions, modifications or renewals thereof.
================================================================================
Page 10
IN WITNESS WHEREOF, Borrower has caused this Mortgage to be executed and
effective as of the day and year first above written, although actually executed
on the date or dates reflected below.
LENDER: (Mortgagee, Secured Party):
COMPASS BANK
By: /s/ Laura R. Clarke
-------------------------------------
Its: Sr. Com'l Loan Officer
BORROWER: (Mortgagor, Debtor):
EAGLE SUPPLY, INC.
ATTEST:
By: /s/ Lucille Manno By: /s/ Frederick Friedman, as V.P.
------------------------------- --------------------------------------
Its: Its: Vice President
WITNESS:
- ---------------------------------- -----------------------------------------
WITNESS:
- ---------------------------------- -----------------------------------------
CORPORATE OR PARTNERSHIP ACKNOWLEDGMENT
STATE OF NEW YORK
COUNTY OF NEW YORK
I, Lucille Manno, a notary public in and for said county in said state,
hereby certify that Frederick M. Friedman, whose name as Vice Pres. of Eagle
Supple, Inc., a Corporation, is signed to the foregoing instrument and who is
known to me, acknowledged before me on this day that, being informed of the
contents of such instrument, *, as such Vice Pres. and with full authority,
executed the same voluntarily for and the act of said Corporation.
Given under my hand and official seal this 19th day of April, 1994.
/s/ Lucille Manno
----------------------------------------
Notary Public
My commission Expires: 11/30/94
Lucille Manno
Notary Public, State of New York
No. 01MA4518395
Qualified in Suffolk county
Commission Expires 11/30/94
Page 11
INDIVIDUAL ACKNOWLEDGMENTS
STATE OF ALABAMA
CONTY OF JEFFERSON
I, Linda G. Arrowood, a notary public in and or said county in said state,
hereby certify that Laura R. Clarke, whose name is signed to the foregoing
instrument and who is known to me, acknowledged before me on this day, that,
being informed of the contents of such instrument, she executed the same
voluntary on the day the same bears date.
Given under my hand and official seal this 20th day of April, 1994.
/s/ Linda G. Arrowood
----------------------------------------
Notary Public
[Notarial Seal] My Commission Expires: 5/4/95
STATE OF ALABAMA
COUNTY OF
I _______________________________, a notary public in and for said county
in said state, hereby certify that ______________________, whose name
__________________ signed to the foregoing instrument and who _________________
known to me on this day, that, being informed of the contents of such
instrument, ________________________ executed the same voluntary on the day the
same bears date.
Given under my hand and official seal this _____ day of _____________,
19__.
-----------------------------
Notary Public
[Notarial Seal] My Commission Expires: _____________
Page 12
EXHIBIT A
Description of Mortgaged Property
A parcel of land located in the Southwest 1/4 of the Northeast 1/4 of Section
27, Township 18 South, Range 3 West, Jefferson County, Alabama, more
particularly described as follows:
Commence at the Northwest corner of Section 27, Township 18 South, Range 3 West
and run Easterly 2.084.08 feet along the North line of said section to a point
on the centerline of Oxmoor Road; thence right 91 (degrees) 47'45" and run
Southerly 469.97 feet along said centerline to a point of intersection with the
centerline extended of Snow Drive; thence left 91 (degrees) 47'45" and run
Easterly 1,418.92 feet along said centerline of Snow Drive to a point of
intersection with the centerline of a proposed 60-foot road right of way; thence
right 90 (degrees) 00'00" and run Southerly 695.54 feet along said centerline to
a point, said point being the point of beginning and the Southeast corner of a
tract of land conveyed to the United States Postal Service as recorded in Real
Volume 1524, page 419, in the Office of the Judge of Probate of Jefferson
County; thence continue Southerly along said centerline 272.23 feet to a point
on the centerline of a proposed 20 feet easement for drainage purposes; thence
right 90 (degrees) 00'00" and run Northerly 272.23 feet to a point on the South
line of said tract conveyed to the United States Postal Service; thence right 90
(degrees) 00'00" and run Easterly along the South line of said United States
Postal Service tract 450.51 feet to the point of beginning.
Situated in Jefferson County, Alabama.
[LOGO] Compass Bank
RIDER TO
FUTURE ADVANCE MORTGAGE, ASSIGNMENT OF RENTS
AND LEASES AND SECURITY AGREEMENT (ALABAMA)
March 24, 1994
Mr. Fred Friedman
Eagle Supply, Inc.
122 East 42nd Street
New York, NY 10168
Dear Mr. Friedman:
We are pleased to advise you that Compass Bank ("Bank") has approved a loan (the
"Loan") for Eagle Supply, Inc. (the "Borrower") subject to the following terms
and conditions.
AMOUNT
The Loan shall consist of a $550,000.00 term Loan.
PURPOSE
The proceeds of the Loan shall be used to refinance some of Borrower's existing
indebtedness.
INTEREST RATE
At least 5 business days prior to the closing, Borrower must select one of the
following interest rate options for the Loan:
(1) Compass Bank Prime; provided, however, that in no event shall the
applicable interest rate be less than four percent (4%), or
(2) the fixed rate, which the Bank would be required to pay, for a Loan of
this size, term and structure, if the Bank obtained an interest rate swap
for five years pursuant to which the Bank would receive a rate equal to
"Prime" (as defined in the international Swap Dealers Associates Code).
"Compass Bank Prime" is a reference rate established by Bank for use in
computing and adjusting interest, is subject to increase, decrease or change at
Bank's discretion and is only one of the reference rates or indices Bank uses.
Bank may lend to others at rates at or greater or less than Compass Bank Prime
or the rate(s) provided for herein. Interest on all Loan facilities shall be
calculated on the basis of a 360-day year multiplying the product of the
principle amount outstanding and the applicable rate by the actual number of
days elapsed and dividing by 360.
TERMS AND PAYMENTS
The Loan shall have payments as follows: (i) installment payments of principal
and accrued interest due and payable monthly based on a 180 month amortization;
and (ii) a final payment due in 60 months, which shall be the final maturity
date and termination date for the Loan, at which time, all unpaid principal,
interest and charges shall be due and payable in full unless due sooner by
reason of default or otherwise.
PREPAYMENT CHARGE
With respect to the Loan, during any period in which a floating interest rate is
applicable, the Loan may be prepaid in whole or in part without penalty.
During any period in which a fixed rate is applicable, there shall be charged a
fee in the amount of 5% of loan balance prepaid during the first year of the
Loan, 4% of the Loan balance prepaid during the second year of the Loan, 3% of
the Loan balance prepaid during the third year of the Loan, 2% of the Loan
balance prepaid during the fourth year of the loan, and 1% of the Loan balance
prepaid during the fifth year of the loan.
Eagle Supply, Inc.
March 24, 1994
Page 2
DISBURSEMENTS
Prior to obtaining any proceeds under the Loan, the Borrower shall comply with
the conditions imposed by Bank. Without limiting the generality of the forgoing,
the Bank shall, among other reasons, be under no obligation to make any
disbursements under the Loan at any time after any event of default has occurred
or is continuing under any one or more of the Loan Documents of if Borrower are
not otherwise in compliance with all terms and conditions of all Loan Documents.
LATE CHARGE
Any scheduled payment of principal and/or interest which is not paid within ten
(10) days from the date due will be subject to a late charge of five percent
(5%) of such scheduled payment.
COLLATERAL
The Loan shall be secured by a first mortgage lien on all property and
improvement located at 289 Snow Drive, Birmingham, Alabama.
APPRAISAL
This commitment is subject to receipt, review and approval by the Bank of a
current appraisal (within the last six months) of the property at 289 Snow
Drive, addressed to Bank and prepared by an independent MAI appraiser selected
and engaged by Bank. Such appraisal shall be in form and content satisfactory to
Bank. Bank shall select the appraiser and order all appraisals required for the
Loan, and the cost of such appraisal shall be the responsibility of the
Borrower.
COVENANTS
In addition to the other terms, events of default, conditions, representations,
warranties, and affirmative and negative covenants, the Loan Documents will
contain covenants covering the following:
A. That Borrower's Tangible Net Worth shall not be less than
$2,000,000.00. Borrower's Tangible Net Worth shall be defined and
calculated in accordance with generally accepted accounting
principles.
B. That the Borrower shall not cause, allow or suffer to occur any
change in the controlling ownership, nature, or structure of the
Borrower, nor the merger or consolidation of or involving the
Borrower, which would result in a change in the controlling
ownership of Borrower, or the sale of all or substantially all the
assets of Borrower.
C. That Borrower's Funded Debt to Tangible Net Worth Ratio shall not
exceed 0.4:1. Borrower's Funded Debt to Tangible Net Worth Ratio
shall be defined as the ratio of Borrower's total debt and
guarantees, if any, but excluding current liabilities (except for
the current portion of long term debt) and intercompany debt, to
Borrower's Tangible Net Worth.
D. That Borrower shall maintain a minimum fixed Charge Coverage Ratio
of 1.1:1.0. Fixed Charge Coverage Ratio shall be defined as the sum
of net income before taxes divided by the annual required principal
payment of Funded Debt.
GENERAL TERMS AND CONDITIONS
Addendum "A" is attached hereto and made a part of this Commitment letter
regarding additional terms and conditions to this Commitment and necessary
documentation required to close this transaction. All documents, exhibits,
certificates or instruments required by Addendum "A" here of and such other
matters as the Bank, or its counsel, may require in the documentation of the
Loan shall be in form and content acceptable to the Bank.
Eagle Supply, Inc.
March 24, 2994
Page 3
EXPENSES
Borrower, by acceptance of this commitment, agrees to and will pay to Bank all
expenses incurred in connection with the Loan and the Loan Documents, including,
without limitation, fees and expenses of Bank's counsel, filing fees, appraisal
fees, recording costs, insurance premiums, taxes and costs of collection,
irrespective of whether the Loan closes or funds.
FINANCIAL STATEMENTS
Borrower shall submit to the Bank such financial and other information which
Bank shall request regarding Borrower and the Collateral, including, without
limitation, quarterly financial statements of Borrower which may be internally
prepared, no later than forty-five (45) days after the period then ending, and
audited fiscal year end statements of the Borrower, bearing an unqualified
opinion from a certified public accountant acceptable to Bank, no later than one
hundred twenty (120) days after the period then ending. Bank shall also receive
annual audited financial statements on TDA Industries, Inc., bearing an
unqualified opinion from a certified public accountant acceptable to Bank, no
later than one hundred twenty (120) days after the period then ending.
ACCEPTANCE
This commitment letter constitutes the entire agreement between Bank and
Borrower concerning the Loan and, when accepted, supersedes all prior
agreements, negotiations and undertakings, whether written or oral. Any
amendment or modification of this commitment letter must be in writing, signed
by Bank and Borrower. THIS COMMITMENT LETTER REPRESENTS THE FINAL AGREEMENT
BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NOT
UNWRITTEN ORAL AGREEMENTS BETWEEN THE BANK AND BORROWER.
By acceptance of this commitment letter, Borrower acknowledges that this
commitment letter is issued at a time when Bank has not undertaken a full
business, credit and legal analysis of Borrower, the Collateral and the
transactions contemplated by the commitment letter. As the Lender, Bank is the
sole judge of what is an impediment to closing and whether the impediment is so
serious as to preclude closing.
This commitment letter shall be accepted by borrower by March 25, 1994, or it
shall become null and void at Bank's option. Acceptance is to be indicated by
the return of an executed copy of this letter to Bank by mail courier or
facsimile.
This commitment, once accepted, will continue in force until April 30, 1994, by
which date, if all closing papers required by Bank have not been executed and
delivered to Bank, and all conditions of this commitment have not been
satisfied, this commitment will expire and become null and void, at Bank's
option.
Compass Bank wishes to thank you for the opportunity to issue this commitment
letter. We look forward to working with you toward consummating a rewarding and
mutually beneficial relationship.
Sincerely,
COMPASS BANK
By: /s/ Laura Clarke
------------------------------
Its: Sr. Commercial Loan Officer
------------------------------
Eagle Supply, Inc.
March 24, 1994
Page 4
Accepted this 24th day of March, 1994
BORROWER:
Eagle Supply, Inc.
By: /s/ Frederick Friedman
---------------------------------
Its: Vice President
[LOGO] Compass Bank ADDENDUM A
GENERAL TERMS AND CONDITIONS
Borrower's Name: Eagle Supply Inc.
Date Of Commitment
Letter: March 21, 1994
1. DEFINITIONS:
a. "360-Day Year". Interest shall be calculated on the basis of a
360-day year, by multiplying the product of the principal amount
outstanding and the applicable rate by the actual number of days
elapsed, and dividing by 360.
b. "Compass Bank Prime". If the interest rate is based on Compass Bank
Prime prevailing at the Bank from time to time, then this paragraph
1.b. is applicable. "Compass Bank Prime" is a reference rate
established by Bank for use in computing and adjusting interest, is
subject to increase, decrease or change at the Bank's discretion,
and is only one of the reference rates or indices the Bank uses.
The Bank may lend to others at rates at or greater or less than
Compass Bank Prime or the rate provided herein.
c. "Collateral". Any and all property, real or personal, tangible or
intangible, mortgaged, pledged, conveyed, delivered or otherwise
granted to Bank to secure the Loan, including without limitation,
the Mortgaged Property.
d. "Commitment". The Commitment Letter, together with this Addendum A
and all other addenda and exhibits referenced herein or in such
Commitment Letter.
e. "Commitment Letter". The commitment letter to Borrower from Bank
dated as of the date first set forth above.
f. "Index Rate". If the interest is based on the Index Rate, as
adjusted, then this paragraph 1.e. is applicable. The "Index Rate"
is the auction rate for United Sates Treasury Bills having
maturities of twenty-six (26) weeks, as established at the most
recent auction prior tot he date reference is first made in the Note
to the Index Rate, and prior to each subsequent interest adjustment
date.
g. "Loan". The Loan referenced in the Commitment Letter.
h. "Loan Document". The Note the Loan Agreement, the Commitment Letter
and all other documents evidenced or securing the Note, or otherwise
given in connection with the Loan.
i. "Mortgaged Property". All that certain property which is to be
mortgaged to Bank to secure the Loan.
j. "Note". The promissory note or notes given to evidence the Loan.
2. TITLE INSURANCE: Bank shall be furnished a mortgagee's title insurance
policy in the amount of the Loan on the standard ALTA form (the "Title
Policy"). The Title Policy shall be issued by the title insurance company
acceptable to Bank, and shall insure the validity of the first mortgage on
the Mortgaged Property, subject only to such exception as may be approved
in writing by Bank. Further, unless waived in writing by Bank, the title
Policy shall contain the following affirmative endorsements: (i)
endorsement for a affirmative coverage regarding legal and physical access
to one or more dedicated, open and accepted public roads or streets; (ii)
zoning endorsements (ALTA form 3.1); (iii) endorsement for affirmative
coverage against disturbance of the surface in the exercise of any mining
or mineral rights not consented to by Bank; (iv) same land - survey
endorsement; (v) endorsement for affirmative coverage regarding mechanic's
and materialmen's liens; (vi) future advances endorsement; (vii) usury
endorsement; (viii) doing business endorsement; (ix) street assessments
endorsement (ALTA form 1); (x) variable rate mortgage endorsement (ALTA
form 6.1); and (xi) comprehensive general endorsement ("California 100").
The Title Policy shall contain no exception for (i) matters that would be
revealed by a survey, or (ii) mechanics' and materialmen's liens.
The Title Policy shall name Bank as mortgages payable, and shall be
satisfactory to Bank as to form and substance. Prior to the date of each
construction disbursement, Bank may require a "date-down endorsement" to
the Title Policy to insure that no mechanics' and materialmen's liens or
other liens have been filed.
3. ORGANIZATION; AUTHORITY: Bank shall receive proof acceptable to Bank, as
applicable, of the organization, due incorporation, good standing and
authorization to enter into the transaction contemplated hereby, for all
corporations, partnerships or other business organizations involved in the
Loan.
4. SURVEY: Prior to the closing, Bank shall be furnished and shall have
approved an accurate survey of the Mortgaged Property, certified within 60
days of closing by a registered surveyor to the Bank and to the title
insurance company, showing the location of all present and proposed
improvements, boundaries, means of public ingress and egress, building
setback lines, right-of-way, easements and encroachments. The survey must
contain a certification as to whether or not the Mortgaged Properties
within a designated flood hazard
area. Borrower shall provide foundation and as-built surveys as
construction progresses. The survey shall be prepared in accordance with
the instruction attached hereto as Exhibit A-1.
5. SOILS ANALYSIS AND ENVIRONMENTAL REPORT: Prior to the closing, Bank shall
receive and approve (i) a soils analysis report relating to the Mortgaged
Property in form and content satisfactory to Bank (ii) an environmental
report which shall certify results related to toxic and other hazardous
substances on the Mortgaged Property, such report to be prepared in
accordance with the instructions attached hereto as Exhibit A-2. All soil
and environmental reports must be acceptable to the Bank.
7. GOVERNMENTAL AUTHORIZATION AND APPROVAL; UTILITIES: Prior to the closing,
Borrower shall provide to Bank a certificate of proper zoning, and a copy
of all governmental and other licenses, permits, approvals and
authorizations necessary for making of the Loan by Borrower and the
construction (or, as appropriate, for the occupancy and operation) of the
project.
All of said licenses, permits, authorizations, and approvals shall be in
form and content satisfactory to counsel for Bank. Borrower shall furnish
to Bank (i) such information as required by Bank to assure that proper
zoning, permits and licenses to construct (or, as appropriate, to occupy
and operate) the Project for its intended purposes have been obtained,
including but not limited to, the issuance of building permits and
certificates of occupancy, and (ii) such additional information as Bank
deems necessary or desirable to insure that the Project complies with all
applicable laws, regulations and requirements including but not limited to
environmental laws, the Americans With Disabilities Act of 1990 and
similar legislation, and rules and regulations promulgated with respect
thereto. The Project shall at all times fully comply with all laws, rules
and regulations applicable to the Project and to Borrower. Borrower shall
provide evidence satisfactory to Bank of the availability of sewer, water,
gas, electrical and telephone service to the Project, including letters of
availability from the providers of such services.
8. BUDGET; DISBURSEMENTS; ADDITIONAL EQUITY:
10. INSURANCE: Borrower shall provide builders risk/extended multi-peril
hazard insurance in an amount not less than the Loan amount, along with
workmen's compensation and general liability insurance on and with respect
to the Mortgaged Property, all with companies approved by Bank and in form
and substance and containing such coverage as shall be required by Bank.
Such builders risk/extended multi-peril hazard policies shall cover risks,
pursuant to one hundred percent (100%) non-reporting policies. Unless
waived in writing, loss of rent insurance must be provided in an amount at
lease equal to twelve (12) months' gross rental. Bank shall be named as
mortgages loss payee in all builders risk/extended multi-peril hazard
insurance policies in the New York standard mortgagee clause, and as an
additional insured on all liability insurance policies. Flood insurance
will be required if it is determined that any improvement lie within a
designed flood hazard area. All policies of insurance shall contain a
commitment of the insurer to give at least thirty (30) days' notice to the
Bank prior to any cancellation, termination or expiration of such policy.
Page 2
11. HAZARDOUS MATERIALS; ENVIRONMENTAL REPRESENTAITONS AND INDEMNITY: The Loan
documents shall contain representations, warranties and covenants of the
Borrower in substantially the following form:
a. No Hazardous Materials (hereinafter defined) have been, are, or will
be any part of the indebtedness secured by the Mortgage remains
unpaid, contained in, treated, stored, handled, generated, located
on, discharged from, or disposed of on, or constitute a part of,
the Mortgaged Property. As used herein, the term "Hazardous
Materials" includes without limitation, any asbestos, urea
formaldehyde foam insulation, flammable explosives, radioactive
materials, hazardous materials, hazardous wastes, hazardous or toxic
substances, or related or unrelated substances or materials defined,
regulated, controlled, limited or prohibited in the Comprehensive
Environmental Response Compensation and Liability Act of 19980
(CERCLA), (42 U.S.C. Sections 9601, et seq.), the Hazardous
Materials Transportation Act, (49 U.S.C. Sections 1801 et seq.), the
Resource Conservation and Recovery Act (RCRA), (42 U.S.C. Sections
6901, et seq.), the Clean Water Act. (33 U.S.C. Sections 1251, et
seq.), the Clean Air Act, (42 U.S.C. Sections 7401, et seq.), the
Toxic Substances Control Act, (15 U.S.C. Sections 2601, et seq.),
each such Act as amended from time to time, or in the rules,
regulations and publications adopted and promulgated pursuant
thereto, or in the rules and regulations of the Occupational Safety
and Health Administration (OSHA) pertaining to occupational exposure
to asbestos, as amended from time to time, or in any other federal ,
state or local environmental law, ordinance, rule, or regulation now
or hereafter in effect;
b. No underground storage tanks, whether in use or not in use, are or
will be located in, on or any part of the Mortgaged Property;
c. All of the Mortgaged Property complies and will comply in all
respects with applicable environmental laws, rules, regulations, and
court or administrative orders;
d. there are no pending claims or threats of claims by private or
governmental or administrative authorities relating to environmental
impairment, conditions, or regulatory requirements with respect to
the Mortgaged Property; and
e. Borrower shall give immediate oral and written notice to Bank of its
receipt of any notice of a violation of any law, rule or regulation
covered by this Paragraph, or of any notice of other claim relating
to the environmental condition of the Mortgaged Property, or of its
discovery of any matter which would make the representations,
warranties and/or covenants herein to be inaccurate or misleading in
any respect.
Borrower agrees to and does hereby indemnify and hold Bank harmless from
all loss, cost, damage, claim and expense incurred by Bank on account of
(i) the violation of any representation or warranty set forth in this
Paragraph, (ii) Borrowers' failure to perform any obligations of this
Paragraph, (iii) Borrower's or the Mortgaged Property's failure to fully
comply with all environment laws, rules and regulations, or with all
occupational health and safety laws, rules and regulations, or (iv) any
other matter related to environmental conditions on, under or affecting
the Mortgaged Property. This indemnification shall survive the closing of
the Loan payment of the Loan, the exercise of any right or remedy under
any Loan Document, and any subsequent sale or transfer of the Mortgaged
Property, and all similar or related events or occurrences. However, this
indemnification shall not apply to any new Hazardous Materials first
stored, generated or placed on the Mortgaged Property after the
acquisition of title to the Mortgaged property by Bank through foreclosure
or deed in lieu of foreclosure or purchase from a third party after the
Loan has been paid in full. Borrower hereby releases and waives any future
claims against Bank for indemnity or contribution in the event Borrower
becomes liable for cleanup or other costs related to the Mortgaged
Property including without limitation under any applicable laws, rules,
regulations or court orders.
The Borrower shall furnish to Bank prior to closing appropriate
certifications of Borrower's architect, engineer, surveyor and/or other
appropriate persons (i) regarding the absence of Hazardous Materials on
the Mortgaged Property or in any structure or improvements constructed or
to be constructed on the Mortgaged property, (ii) regarding the absence of
any underground storage tanks, whether in use or not in use, in, on or
under any part of the Mortgaged Property, (iii) regarding compliance with
environmental laws, and (iv) that the Mortgaged Property is not located on
or near sites listed on the CERCLA National Priorities list, CERCLIS list
or applicable State environmental agency list of sites where Hazardous
Materials have been disposed. Bank has the right to require such
certificates from an engineer or consultant selected by Bank, the expense
of which shall be reimbursed by Borrower. Borrower shall obtain and
furnish to Bank similar certificates upon completion of construction.
In addition to other inspection rights of Bank, the Borrower shall and
hereby does grant and convey to the Bank, its agents, representatives,
contractors, and employees, an easement and license to enter on the
Mortgaged Property at any time and from time to time for the purpose of
making such audits, tests, inspections, and examinations, including,
without limitation, inspection of buildings and improvements, subsurface
exploration and testing and groundwater testing, as the Bank, in its sole
discretion, deems necessary, convenient, or proper to determine whether
the ownership, use and operation of the Mortgaged Property are in
compliance with the terms and conditions set forth in the Loan Documents
and with all federal, state, and local environmental laws, ordinances,
rules and regulations. Any tests or inspections made by Bank shall be for
Bank's purposes only and shall not be construed to create any
responsibility or liability on the part of Bank to Borrower or to any
other person or entity. Bank shall have no obligation to perform any such
audits, tests, inspections, or examinations, or to take any remedial
action. All the costs and expenses incurred by the Bank with respect to
any audits, tests, inspections, examinations, and interviews which the
Bank may conduct or take pursuant to this paragraph, including, without
limitation, the fees of any engineers, laboratories, and contractors,
shall be repaid by the Borrower, with interest, and shall be secured by
the Mortgage and the other Loan Documents.
12. EXPENSES: By Borrower's acceptance of the commitment, Borrower
unconditionally agrees to pay all expenses incurred by Bank in connection
with the underwriting, closing, servicing or collection of the Loan,
including, but not limited to, legal fees, including the fees of Bank's
counsel, appraisal fees, the fees of the Construction Consultant, all
title insurance and other title report fees and premiums, other insurance
premiums, survey costs, intangible taxes, note taxes, transfer taxes, all
recording costs, and all license and
Page 3
permit fees, whether or not the Loan is closed. All such expenses will be
paid at the loan closing or, in the event that the loan does not close,
then upon the expiration of this Commitment.
13. OPINIONS OF COUNSEL: Bank shall be provided with opinions of counsel for
such persons and entities and covering such matters as Bank shall deem
necessary or desirable in connection with the Loan, including without
limitation, opinion of counsel to the Borrower and any Guarantors with
respect to the due authorization, execution and enforceability of the Loan
Documents. Without limitation to the foregoing, if the Collateral is
located in a state other than Alabama, Borrower will provide for local
counsel to give the Bank appropriate opinions as to the enforceability of
the Loan Documents in such state, local usury laws, and whether the Bank,
by making the Loan, will be considered to be "doing business" in such
state.
14. DOCUMENTATION: The title commitment (with copies of all exceptions to
title), the survey, and the soil and environmental reports must be
furnished to Bank at least 10 business days in advance of closing the
Loan.
The provisions of this Commitment are intended to serve only as a general
outline of the terms and conditions under which Bank will make the Loan.
The documentation to be executed in connection with the Loan shall be
prepared or approved by Bank's counsel, shall contain such terms and
conditions as the Bank deems necessary or desirable, and may, in the
Bank's sole discretion and without limitation, include a promissory note,
a loan agreement, a mortgage and security agreement, an assignment of
rents and leases, UCC financing statements, an assignment of any
management contracts, an assignment of construction and architect
contracts, lien subordination and indemnity agreements from the general
contractor(s) and the architect, guarantees (as applicable), and any other
documents deemed appropriate by Bank or its counsel. The costs of the
preparation of all documents shall be borne by the Borrower, whether or
not the Loan is closed.
16. DEFAULT: In addition to other events or circumstances that may be set
forth in the Loan documentation, and at the option of Bank, the following
shall be events of default under the Loan: (a) failure to pay when due or
to perform or comply with any of the (i) obligations or provisions under
the promissory note, (ii) obligations or provisions under any Loan
Document, or (iii) other obligations or indebtedness of Borrower to Bank,
now existing or hereafter incurred or arising, and whether direct or
indirect; (b) the general assignment by, judgment against or filing of
petition in bankruptcy by or against Borrower, or any general partner of
Borrower; (c) the filing of application in any court for a receiver for
Borrower, or any general partner of Borrower; or (d) the death,
incapacity, dissolution or liquidation of Borrower or any general partner
of Borrower.
20. MERGER OF PRIOR STATEMENTS; AMENDMENTS: No statements, agreements or
representations, oral or written, which may have been made to you or
Borrower or to any employee or agent of yours or Borrower's, either by
Bank or by any employee, agent or broker acting on Bank's behalf, with
respect to the Loan, shall be of any force or effect, except to the extent
stated in this Commitment, and all prior agreements and representations in
respect of the Loan are merged herein. This Commitment may not be (i)
changed except by written agreement signed by Borrower and Banks, or (ii)
assigned by Borrower by operation of law or otherwise, unless Bank shall
consent in writing to such assignment.
21. CANCELLATION: Bank may, at its option, terminate and cancel this
Commitment without further notice or obligation upon the occurrence of any
one or more of the following:
a. If all applicable conditions contained in this commitment have not
been met to Bank's satisfaction and the satisfactions of Bank's
counsel, and the Loan has not been closed, b the date specified in
the Commitment Letter; or
b. If any representation made in connection with, or as an inducement
to the issuance of this commitment or any extension of the Loan is
untrue or misleading in any respect; or
c. (illegible) respect to the Project, the Borrower, any Guarantor, the
Collateral, or any others
Page 4
22. RESTRICTIOIN OF SECONDARY FINANCING AND SALE OF COLLATERAL: So long at
this Commitment or any part of (illegible) outstanding, the collateral
shall remain free and clear of all encumbrances, liens, mortgages,
security interests and secondary financing, except those approved in
advance in writing by Bank, and Borrower shall not and shall not allow or
suffer any other person or entity without the prior written consent of
Bank, to sell, transfer or convey all or any part of its interest in the
Collateral or any portion thereof. Unless otherwise agreed in writing by
Bank, the ownership of Borrower shall at all times remain unchanged.
The occurrence of any of the foregoing shall, at the option of Bank,
constitute grounds for terminating this Commitment and for accelerating
any and all sums unpaid under the Loan.
23. ASSIGNMENT: NO THIRD PARTY BENEFICIARIES: This Commitment may not be
assigned by Borrower Bank has the right at all times to assign the Loan
or any part thereof to third parties and to otherwise participate the Loan
or any part thereof to third parties. Monitoring, inspections and review
of financial information by Bank may not be relied upon by Borrower or any
other person or entity and shall be for the sole benefit of Bank. There
are no third party beneficiaries of this Commitment and no person or
entity other than Bank and Borrower shall be entitled to rely hereon or
benefit herefrom.
24. APPLICABLE LAW: JURISDICTION: The Borrower and Guarantors agree that this
Commitment and the Loan Documents shall be governed by and constituted
under the laws of the State of Alabama. Borrower and Guarantor hereby
acknowledge that (i) the negotiation, execution, and delivery of the Loan
Documents constitutes the transaction of business within the State of
Alabama, (ii) any cause of action arising under any of said Loan Documents
will be a cause of action arising from such transaction of business, and
(iii) Borrower and Guarantor understand, anticipate and foresee that any
action for enforcement of the Loan or the Loan documents may be brought
against them in the State of Alabama. To the extent allowed by law,
Borrower and Guarantor hereby submit themselves to jurisdiction in the
State of Alabama for any action or cause of action arising out of in
connection with the Loan or the Loan Documents, agree that venue for any
such action shall be in Jefferson County, Alabama, and waive any and all
rights under the laws of any state to object to jurisdiction or venue
within Jefferson County, Alabama. Notwithstanding the foregoing, nothing
contained in this paragraph shall prevent Bank from bringing any action or
exercising any rights against Borrower, any Guarantor, any security for
the Loan, or any of Borrower's properties in any other county, state or
jurisdiction. Initiating such action or proceeding or taking any such
action in any other state shall in no event constitute a waiver by Bank
of any of the foregoing.
25. SURVIVAL OF COMMITMENT: The terms and conditions of this Commitment shall
survive the closing of the Loan; provided, however, that if any of the
terms and conditions of this Commitment shall conflict with all of the
terms and conditions of the Loan Documents, the terms and conditions of
the Loan Documents shall prevail.
26. BORROWER-LENDER RELATIONSHIP: Nothing contained herein, or in any of the
documents contemplated hereby, shall be deemed to render the Bank on the
one hand, and the Borrower on the other hand partners or venturers for any
purpose.
27. PLACE OF CLOSING: The Loan shall be closed, and the Loan Documents shall
be executed in the State of Alabama.
28. RIDER: Additional provisions of these General Terms and Conditions, if any
are set forth below or on a Rider attached hereto and made a part thereof.
================================================================================
Page 5
GEORGE R. REYNOLDS, JUDGE MICHAEL F. BOLIN, JUDGE
PROBATE COURT OF JEFFERSON COUNTY
BIRMINGHAM, ALABAMA 35263 BESSEMER, ALABAMA 35020
(205) 325-5420 (205) 481-4100
04/20/94
CASE/BOOK/FILE NUMBER: 9/405/4597 INSTRUMENT 340 PR
RECEIVED OF: BERKOWITZ AMOUNT $882.00
EAGLE SUPPLY INC. I CERTIFY THAT THIS DOCUMENT
COMPASS BANK WAS FILED WITH DATE, TIME AND
MTG. TAX: 825.00 GEORGE R. REYNOLDS
DEED TAX: JUDGE OF PROBATE
FEE AMT: 57.00
CHECK BATCH NBR 989 TELLER 12 12:28 P.M.
BY:
CLOSING STATEMENT
Lender: Compass Bank
Borrower: Eagle Supply, Inc.
Date: April 20, 1994
Property: Snow Drive
Birmingham, Alabama
LOAN PROCEEDS $550,000.00
Plus Cash From Borrower $5,352.00
- -----------------------
Less Disbursement:
- ------------------
Land Title 1,070.00
(Insurance Premium)
Phase I Assessment-Reliance Letter 50.00
Berkowitz, Lefkovits, Isom 1,350.00
& Kushner
(Fees and Expenses, including
federal express, facsimile and
photocopying.)
Appraisal 2,000.00
Recording Fees 882.00
(Mortgage, Probate Judge, Jefferson County) ---------
Total Disbursements $5,352.00
NET PROCEEDS AVAILABLE TO BORROWER: $550,000.00
The foregoing statement has been examined and found to be correct, the
disbursement of the loan proceeds as above stated is hereby authorized and
directed. Receipt of the loan proceeds as above stated and a copy of this
statement are hereby acknowledge by Borrower. Berkowitz, Lefkovits, Isom &
Kushner, P.C. represents only the Lender in the within transaction and Borrower
acknowledges that no advice or certificates have been made to the Borrower with
regard to this Loan. If any of the costs or disbursements reflected above are
based upon incorrect information or if any additional amounts are needed to
close this loan in accordance with the terms of the loan commitment, Borrower
agrees to pay the same immediately upon demand.
This statement can be signed in two or more counterparts.
LENDER: BORROWER:
- ------- ---------
COMPASS BANK EAGLE SUPPLY, INC.
By:/s/ Laura R. Clarke By:/s/ Frederick Friedman
-------------------------- -----------------------------
Its: Sr. Com'l Loan Officer Its: Vice President
STATE OF ALABAMA )
JEFFERSON COUNTY )
BORROWER'S CLOSING AFFIDAVIT
WHEREAS, EAGLE SUPPLY, INC., a Florida corporation, located at 1301 Fourth
Avenue, Tampa, Florida 33605 (the "Borrower"), has entered into an Agreement for
financing with COMPASS BANK (the "Lender") as of April 20, 1994, providing for a
mortgage loan (the "Loan") secured by a lien upon the real property described in
Exhibit "A" attached hereto and made a part hereof (the "Property"); and
WHEREAS, the following instruments, among others (the "Loan documents")
have this day been duly executed and delivered to the Lender by the Borrower
pursuant to the terms, provision and conditions of the Loan Agreement:
1. Promissory Note of even date herewith (the "Note") made by the Borrower
in the principal sum of Five hundred Fifty Thousand and 00/100 dollars
($550,000.00) and payable to the order of the Lender with interest at the rate
or rates therein provided; and
2. Future Advance Mortgage, Assignment of Rents and Leases and Security
Agreement (the "Mortgage") of even date herewith, from the Borrower to the
Lender, creating a lien on and security interest in the Property, securing the
payment of the Note.
NOW, THERFORE, the undersigned being first duly sworn, on oath,
represents, warrants, and state as follows:
1. There are no mechanics' or materialmen's liens, lienable bills, or other
claims constituting or that may constitute a lien on the Property, or any part
thereof.
2. The Property and the use which the Borrower contemplates therefor
comply with all applicable restrictive covenants, zoning ordinances, and
building codes, all applicable health and environmental laws and regulations,
and all other applicable laws, rules and regulation. The Borrower has obtained
all requisite zoning, utility, health, and operating permits from the
governmental authority or municipality having jurisdiction over the Property.
All engineering specifications with respect to the Property are within
applicable standards. The sanitary water supply, storm sewers, sanitary sewer
service, water lines, electrical and gas facilities are available to the
Property within the boundary lines of the Property, are sufficient to meet the
reasonable needs of the Property as it is intended to be used. None of the
Property is within a flood plain.
3. The Property is free and clear from all liens and security interests
except the lien and security interest created by the Mortgage and is not the
subject of any financing statement filed in any public office except for the
Mortgage.
4. The Property is free and clear from all leases.
5. No consent or approval of any regulatory body to the execution,
delivery, or performance of the Loan Documents is required by law, except as may
be specifically referred to therein.
6. The undersigned is aware of no suits, proceedings, or investigations
pending or threatened against or affecting the Borrower at law or in equity, or
before or by any governmental or administrative agency or instrumentality,
which, if adversely determined, would have a material adverse effect on the
Property.
7. There is no judgment, decree, or order of any court or governmental or
administrative agency or instrumentality which has been issued against the
Borrower and which has or may have any material adverse effort on the Property.
8. The execution and the delivery of the Loan Documents do not contravene
any law, order, decree, rule or regulation to which the Borrower or the Property
is subject.
9. The Borrower is solvent, is not bankrupt, is not contemplating nor has
recently contemplated bankruptcy, receivership, or reorganization (nor is there
any prospect of such), and there are no outstanding liens, suits, garnishments,
bankruptcies, or court actions which could render Borrower insolvent or
bankrupt.
10. There has been no material adverse change, financial or otherwise, in
the condition of the Borrower or in any feature of the Loan, from that therefore
disclosed to Lender in writing or in other supporting data submitted therewith.
All payment and accounts with respect to the Property are current and are not in
default.
11. Unless otherwise specifically permitted in the Loan Documents, the
Borrower will not place any additional financing on the Property without the
prior written consent of Lender.
12. The execution and delivery by the Borrower of the Loan Documents will
not violate any indenture, agreement, or other instrument to which the Borrower
is a party or by which the Borrower or any of the Borrower's property is bound,
or be in conflict with, result in the breach of or constitute (with due notice
and/or lapse of time) a default under any such indenture, agreement, or other
instrument, or result in the creation or imposition of any lien, charge, or
encumbrance of any nature whatsoever upon any of the property or assets of the
Borrower, except as contemplated by the provisions of the Loan Documents, and no
action or approval with respect thereto by any third person (except as otherwise
specifically disclosed to Lender in the Loan Agreement and other supporting data
therewith) is required.
13. All documents necessary to authorize the Borrower to execute the Loan
Documents and to engage in any transaction or business in connection with which
the Loan is made have been duly authorized, executed, and filed with the
appropriate governmental authorities having jurisdiction over the Borrower and
the Property.
14. The Borrow hereby certifies that it has thoroughly reviewed the
provisions of the Note and the Mortgage and other Loan Documents executed and
delivered by the Borrower in connection with the Loan, that it has been advised
and represented by counsel of its own choice in said transaction and that it
understands and consents to the provisions of such instruments.
15. This affidavit is made by the undersigned for the purpose of inducing
the Lender to consummate and close the transactions contemplated by the Loan.
Executed and delivered this 20th day of April, 1994.
BORROWER:
EAGLE SUPPLY, INC.,
A Florida corporation
By: /s/Frederick Friedman, V.P.
----------------------------
Its: Vice President
STATE OF NEW YORK )
NY COUNTY )
I, the undersigned authority, a Notary Public in and for said County, in said
State, hereby certify that Frederick M. Friedman, whose name as Vice President
of Eagle Supple, Inc., a Florida corporation, is signed to the foregoing
BORROWER'S CLOSING AFFIDAVIT and who is known to me, acknowledged before me on
this day that, being informed of the contents of the BORROWER'S CLOSING
AFFIDAVIT, he, in his capacity as such officer and with full authority, executed
the same voluntarily for and as the act of said corporation on the day the same
bears date.
Given under my hand the 19th day of April, 1994.
/s/ Lucille Manno
-----------------------------
Notary Public
My Commission Expires 11/30/94
Lucille Manno
Notary Public, State of New York
No. 01MA4518395
Qualified in Suffolk County
Commission Expires 11/30/94
2
EXHIBIT "A"
LEGAL DESCRIPTION OF PROPERTY
A parcel of land located in the Southwest 1/4 of the Northeast 1/4 of Section
27, Township 18 South, Range 3 West, Jefferson County, Alabama, more
particularly described as follows:
Commence at the Northwest corner of Section 27 , Township 18 South, Range 3 West
and run Easterly 2,084.08 feet along the North line of said section to a point
on the centerline of Oxmoor Road; thence right 91 (degrees) 47'45" and run
Southerly 469.97 feet along said centerline to a point of intersection with the
centerline extended of Snow Drive; thence left 91 (degrees) 47'45" and run
Easterly 1,418.92 feet along said centerline of Snow Drive to a point of
intersection with the centerline of a proposed 60-foot road right of way; thence
right 90 (degrees) 00'00" and run Southerly 695.54 feet along said centerline to
a point, said point being the point of beginning and the Southeast corner of a
tract of land conveyed to the United States Postal Service as recorded in Real
Volume 1524, page 419, in the Office of the Judge of Probate of Jefferson
County; thence continue Southerly along said centerline 272.23 feet to a point
on the centerline of a proposed 20 feet easement for drainage purposes; thence
right 90 (degrees) 00'00" and run Northerly 272.23 feet to a point on the South
line of said tract conveyed to the United States Postal Service; thence right 90
(degrees) 00'00" and run Easterly along the South line of said United States
Postal Service tract 450.51 feet to the point of beginning.
Situated in Jefferson County, Alabama.
3