LIEN SUBORDINATION AGREEMENT
between
TORONTO DOMINION (TEXAS), INC., as Liquidity Agent
and
TORONTO DOMINION (TEXAS), INC., as Existing Debt Agent
DATED AS OF MARCH 16, 2000
This document was prepared by, and when
recorded, please return to:
Simpson Thacher & Bartlett
3373 Hillview Avenue - Suite 250
Palo Alto, California 94304
Attn: Erin L. Rothfuss, Esq.
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LIEN SUBORDINATION AGREEMENT
----------------------------
LIEN SUBORDINATION AGREEMENT (this "Agreement") dated as of
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March 16, 2000 between TORONTO DOMINION (TEXAS), INC., a Delaware corporation,
as administrative agent and collateral agent for the Liquidity Lenders referred
to below (in such capacity, the "Liquidity Agent"), and TORONTO DOMINION
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(TEXAS), INC., a Delaware corporation, as general administrative agent for the
Existing Lenders referred to below (in such capacity, the "Existing Debt
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Agent").
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RECITALS
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A. Safety-Kleen Systems, Inc. (formerly known as Safety-Kleen
Corp.), a Wisconsin corporation ("Safety-Kleen"), is a subsidiary of
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Safety-Kleen Corp., a Delaware corporation ("Parent"). The Liquidity Agent,
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Safety-Kleen, Safety-Kleen Services, Inc., a Delaware corporation ("Services"),
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and the several banks and other financial institutions or entities from time to
time parties thereto (collectively, the "Liquidity Lenders") have entered into
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that certain Demand Loan Agreement dated as of March 14, 2000 (as the same may
be amended, supplemented, extended, renewed, restated, replaced, substituted or
otherwise modified from time to time, the "Liquidity Credit Agreement") which
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contains certain terms and provisions concerning a loan made by the Liquidity
Lenders to Safety-Kleen in the aggregate principal amount of up to $20,000,000
(the "Liquidity Loan"). The Liquidity Loan may be evidenced by promissory notes
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of Safety-Kleen made payable to the order of the relevant Liquidity Lender (as
the same may be amended, supplemented, modified, extended, restated or replaced
from time to time, the "Liquidity Notes"). The Liquidity Agent is the
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administrative agent and collateral agent for the Liquidity Lenders pursuant to
the Liquidity Credit Agreement.
B. The Existing Debt Agent, Parent, Services, the financial
institutions described and defined therein (collectively, the "Existing
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Lenders"), Safety-Kleen (Canada) Ltd., The Toronto-Dominion Bank, as Canadian
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administrative agent, TD Securities (USA) Inc., as arranger, Bank of America,
N.A., as syndication agent, and The Bank of Nova Scotia, Bank of America, N.A.,
The First National Bank of Chicago and Wachovia Bank, N.A., as managing agents
have entered into that certain Amended and Restated Credit Agreement dated as of
April 3, 1998 (as the same may be amended, supplemented, extended, renewed,
restated, replaced, substituted or otherwise modified from time to time, the
"Existing Credit Agreement") which contains certain terms and provisions
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concerning loans and other extensions of credit made by the Existing Lenders to
Services in the aggregate principal amount of up to $2,100,000,000 (the
"Existing Debt"). The Existing Debt is evidenced by promissory notes of Borrower
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made payable to the order of the relevant Existing Lender (as the same may be
amended, supplemented, modified, extended, restated or replaced from time to
time, the "Existing Notes"). In recognition of the benefits conferred on
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Safety-Kleen, as a subsidiary of Services, from Services entering into the
Existing Credit Agreement, Safety-Kleen executed that certain Guarantee and
Collateral Agreement dated as of April 3, 1998 (the "Guarantee"), pursuant to
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which Safety-Kleen guaranteed to the Existing Debt Agent the prompt and complete
payment
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and performance by Parent when due of the Borrower Obligations and the Working
Capital Obligations (each as defined in the Guarantee). The Existing Debt Agent
is the general administrative agent for the Existing Lenders pursuant to the
Existing Credit Agreement and the Guarantee.
C. The Existing Debt is, and the Liquidity Loan shall be, each
secured by liens encumbering the interests of Safety-Kleen in the real property
described on Exhibit A attached and the improvements located or to be located
thereon (such interests, real property and improvements being collectively
referred to as, the "Property").
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D. The Liquidity Agent and the Existing Debt Agent desire to
enter into this Agreement for the purpose of establishing the priorities of
their respective interests in the Property, and for the purpose of setting forth
certain other agreements between them with respect to their agreements with
Safety-Kleen.
AGREEMENT
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NOW, THEREFORE, in consideration of the premises, the payment
of good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Liquidity Agent and the Existing Debt Agent agree as
follows:
1. Defined Terms. As used in this Agreement, the following
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terms shall have the meanings hereinafter set forth:
Existing Credit Agreement: As defined in the Recitals to this
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Agreement.
Existing Debt Documents: All loan documents, loan agreements,
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notes, security agreements, mortgages, guaranties, collateral security
agreements and other instruments evidencing, representing, securing
and/or guaranteeing the Existing Debt, including, without limitation,
the Existing Notes and the Existing Mortgage, as any of the same may be
amended, supplemented, extended, renewed, restated, replaced,
substituted or otherwise modified from time to time.
Existing Mortgage: That certain Mortgage, Assignment of Rents
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and Leases and Security Agreement dated as of May 22, 1998 made by
Safety-Kleen in favor of the Existing Debt Agent securing repayment of
the Existing Debt and encumbering the Property and recorded in the
Recorder's Office on May 22, 1998 as Document 98K044699, as the same
may be amended, supplemented, extended, renewed, restated, replaced,
substituted or otherwise modified from time to time.
Existing Notes: As defined in the Recitals to this Agreement.
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Existing Obligations: the principal amount of, and accrued
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interest on (including, without limitation, any interest which accrues
after the commencement of any case, proceeding or other action relating
to the bankruptcy, insolvency or reorganization of Safety-Kleen), the
Existing Notes and the Existing Credit Agreement, and all other
indebtedness, obligations and liabilities of Safety-Kleen to the
Existing Debt Agent now existing or hereafter incurred or created under
or with respect to or in connection with the Existing Notes and the
Existing Credit Agreement.
Existing Security Documents: The Existing Mortgage and any
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other mortgages, assignment of rents or security agreements executed in
connection with the Existing Debt from time to time as any of the same
may be amended, supplemented, extended, renewed, restated, replaced,
substituted or otherwise modified from time to time.
Governmental Authority: Any nation or government, any state or
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other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
Liquidity Credit Agreement: As defined in the Recitals to this
--------------------------
Agreement.
Liquidity Loan: As defined in the Recitals to this Agreement.
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Liquidity Loan Documents: All loan documents, loan agreements,
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notes, security agreements, mortgages, guaranties, collateral security
agreements and other instruments evidencing, representing, securing
and/or guaranteeing the Liquidity Loan, including, without limitation,
the Liquidity Credit Agreement, the Liquidity Notes and the Liquidity
Mortgage, as any of the same may be amended, supplemented, extended,
renewed, restated, replaced, substituted or otherwise modified from
time to time.
Liquidity Mortgage: The Mortgage, Assignment of Rents and
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Leases and Security Agreement dated as of the date hereof made by
Safety-Kleen in favor of the Liquidity Agent securing repayment of the
Liquidity Loan and encumbering the Property and to be recorded in the
Recorder's Office, as the same may be amended, supplemented, extended,
renewed, restated, replaced, substituted or otherwise modified from
time to time.
Liquidity Notes: As defined in the Recitals to this Agreement.
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Liquidity Obligations: All obligations, liabilities and
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indebtedness of Safety-Kleen under any Liquidity Loan Document,
including, without limitation (A) the principal amount of, and accrued
interest on (including, without limitation, any interest which accrues
after the commencement of any case, proceeding or other action relating
to the bankruptcy, insolvency or reorganization of Safety-Kleen,
whether or not such interest would be allowed in such case, proceeding
or action), the Liquidity Loan, (B) all other indebtedness, obligations
and liabilities of Safety-Kleen to the Liquidity Agent now existing or
hereafter incurred or created under the Liquidity Loan Documents, and
(C) all
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5
other indebtedness, obligations and liabilities of Safety-Kleen to the
Liquidity Agent now existing or hereafter incurred or created.
Liquidity Security Documents: The Liquidity Mortgage and any
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other mortgages, assignment of rents or security agreements executed in
connection with the Liquidity Loan from time to time as any of the same
may be amended, supplemented, extended, renewed, restated, replaced,
substituted or otherwise modified from time to time.
Parent: As defined in the Recitals to this Agreement.
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Person: An individual, partnership, corporation, business
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trust, joint stock company, trust, unincorporated association, joint
venture, Governmental Authority or other entity of whatever nature.
Property: As defined in the Recitals to this Agreement.
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Recorder's Office: The Office of the Kane County Recorder of
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Deeds, Elgin, Illinois.
Safety-Kleen: As defined in the Recitals to this Agreement.
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2. Subordination and Priority. (a) The lien of the Liquidity
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Security Documents and any future advances made thereunder shall be and remain a
first lien against the Property and the lien of the Existing Security Documents
shall at all times, whether before, after or during the pendency of any
bankruptcy, reorganization or other insolvency proceeding, be junior, subject
and subordinate to the lien of the Liquidity Security Documents and any future
advances made thereunder.
(b) Notwithstanding any provision of the Existing Mortgage to
the contrary, all obligations of Safety-Kleen thereunder and all rights of the
Existing Debt Agent, including, without limitation, the Existing Debt Agent's
rights with respect to insurance proceeds, condemnation awards and assignment of
rents, are and shall be subordinate and subject to the prior obligations of
Safety-Kleen and the prior rights of the Liquidity Agent under the Liquidity
Mortgage.
(c) (A) In the event of any distribution, division or
application, partial or complete, voluntary or involuntary, by operation of law
or otherwise, of all or any substantial part of the property, assets or business
of Safety-Kleen or the proceeds thereof to any creditor or creditors of
Safety-Kleen or (B) upon any indebtedness of Safety-Kleen becoming due and
payable by reason of any liquidation, dissolution or other winding-up of
Safety-Kleen or its business or by reason of any sale, receivership, insolvency,
reorganization or bankruptcy proceedings, assignment for the benefit of
creditors, arrangement or any proceeding by or against Safety-Kleen for any
relief under any bankruptcy, reorganization or insolvency law or laws, Federal
or state, or any law, Federal or state, relating to the relief of debtors,
readjustment of indebtedness, reorganization, composition, or extension, or (C)
in the event that any of the Existing Debt is declared due and payable prior to
its stated maturity (under circumstances when
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6
the preceding clause (A) or (B) shall not be applicable), or (D) in the event
that any of the Liquidity Obligations have become, or have been declared to be,
due and payable (and have not been paid in accordance with their terms), then
and in any such event, any payment or distribution of any kind or character,
whether in cash, property or securities which, but for the subordination
provisions contained herein, would otherwise be payable or deliverable to the
Existing Debt Agent upon or in respect of the Existing Debt, shall instead be
paid over or delivered to, and for the account of, the Liquidity Agent, and the
Existing Debt Agent shall not receive any such payment or distribution or any
benefit therefrom unless and until the Liquidity Obligations shall have been
fully paid and satisfied in cash.
(d) The Existing Debt Agent agrees that any increase in the
amount of, or any extension, acceleration, restructuring or refinancing of, the
Liquidity Obligations shall not affect the obligations of the Existing Debt
Agent hereunder so long as the principal amount of such Liquidity Obligations
does not exceed $20,000,000.
3. Rights of Liquidity Agent. (a) Nothing herein contained
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shall be deemed to preclude the Existing Debt Agent from appearing or being
heard in any bankruptcy, insolvency, or other similar proceedings affecting
Safety-Kleen, nor from collecting from Safety-Kleen (or any other party which
may be liable therefor) the full amount due to the Existing Debt Agent (through
subrogation to the rights of the Liquidity Agent or otherwise) after all amounts
due to the Liquidity Agent have been fully paid and satisfied by payment in full
in cash.
(b) Should any payment or distribution or security, or the
proceeds of any thereof, be collected or received by the Existing Debt Agent in
respect of the Existing Mortgage, and such collection or receipt is not
expressly permitted hereunder, the Existing Debt Agent will forthwith turn over
the same to, and for the account of, the Liquidity Agent, in the form received
(except for the endorsement or the assignment of the Existing Debt Agent when
necessary) and, until so turned over, the same shall be held in trust by the
Existing Debt Agent as the property of the Liquidity Agent and kept separately
from and not commingled with other assets or funds of the Existing Debt Agent.
(c) If at any time payment of all or any part of the Liquidity
Obligations is rescinded or must otherwise be restored or returned by the
Liquidity Agent upon the insolvency, bankruptcy, dissolution, liquidation or
reorganization of Safety-Kleen or upon the appointment of a receiver, intervenor
or conservator of, or trustee or similar officer for Safety-Kleen or any
substantial part of its property, or otherwise and the Existing Debt Agent has
received proceeds of the Existing Mortgage, the Existing Debt Agent shall
forthwith turn over the same to, and for the account of, the Liquidity Agent,
until the Liquidity Agent has received the full amount of the Liquidity
Obligations which have been so rescinded, restored or returned.
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7
(d) The Existing Debt Agent hereby waives all rights of
marshalling of assets or proration of security interests in the event of any
sale of the Property pursuant to a foreclosure of the Liquidity Loan Documents
or otherwise.
(e) The Existing Debt Agent agrees that it shall not acquire
any lien, by subrogation or otherwise, prior in right to the lien of the
Liquidity Loan Documents on any portion of the Property.
4. Liquidity Obligations. The Existing Debt Agent consents
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that, without the necessity of any reservation of rights against the Existing
Debt Agent, and without notice to or further assent by the Existing Debt Agent,
(i) any demand for payment of any of the Liquidity Obligations made by the
Liquidity Agent may be rescinded in whole or in part by the Liquidity Agent, and
any of the Liquidity Obligations may be continued, and the Liquidity
Obligations, or the liability of Safety-Kleen or any other Person upon or for
any part thereof, or any collateral security or guaranty therefor or right of
offset with respect thereto, or any obligation or liability of Safety-Kleen or
any other Person under the Liquidity Loan Documents, may, from time to time, in
whole or in part, be renewed, extended, modified, accelerated, compromised,
waived, surrendered, or released by the Liquidity Agent and (ii) the Liquidity
Loan Documents and any document or instrument evidencing or governing the terms
of any other Liquidity Obligations or any collateral security documents or
guaranties or documents in connection therewith may be amended, modified,
supplemented or terminated, in whole or in part, as the Liquidity Agent may deem
advisable from time to time, and any collateral security at any time held by the
Liquidity Agent for the payment of any of the Liquidity Obligations may be sold,
exchanged, waived, surrendered or released, in each case all without notice to
or further assent by the Existing Debt Agent, which will remain bound under this
Agreement, and all without impairing, abridging, releasing or affecting the
subordination provided for herein, notwithstanding any such renewal, extension,
modification, acceleration, compromise, amendment, supplement, termination,
sale, exchange, waiver, surrender or release. The Existing Debt Agent waives any
and all notice of the creation, renewal, extension or accrual of any of the
Liquidity Obligations and notice of or proof of reliance by the Liquidity Agent
upon this Agreement, and the Liquidity Obligations, and any of them, shall
conclusively be deemed to have been created, contracted or incurred in reliance
upon this Agreement, and all dealings between Safety-Kleen and the Liquidity
Agent shall be deemed to have been consummated in reliance upon this Agreement.
The Existing Debt Agent acknowledges and agrees that the Liquidity Agent has
relied upon the subordination provided for herein in entering into the Liquidity
Loan Documents and in making funds available to Safety-Kleen thereunder. The
Existing Debt Agent waives notice of or proof of reliance of this Agreement and
protest, demand for payment and notice of default and nothing contained in this
Agreement will be construed to require reliance as a condition to enforcement of
any provision of this Agreement.
5. Decisions Regarding Collateral. (a) Notwithstanding the
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existence of the Existing Debt Documents, the Liquidity Agent shall be free to
initiate proceedings, make modifications, grant consents and otherwise deal with
respect to the Property or any other collateral under the Liquidity Loan
Documents in the same manner and to the same extent as it would have been able
to do had the liens under the Existing Debt Documents not been granted.
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8
Further, if the Liquidity Agent, acting under the Liquidity Loan Documents,
consents to or approves of any action by Safety-Kleen with respect to the
Property which will require the Existing Debt Agent's acquiescence or joinder or
other affirmative act to implement, then Existing Debt Agent shall grant its
consent, execute any necessary instrument or take such other action as may be
required and the Existing Debt Agent hereby irrevocably authorizes and empowers
the Liquidity Agent, at the Liquidity Agent's option and in the Liquidity
Agent's sole discretion, as attorney-in-fact for the Existing Debt Agent to
execute, acknowledge and deliver any necessary instruments in the name of the
Existing Debt Agent and to do and perform any acts to effectuate the provisions
of this paragraph. This power of attorney is a power coupled with an interest
and cannot be revoked.
(b) If the Liquidity Agent shall at any time release to
Safety-Kleen any insurance proceeds or condemnation award for the purpose of
restoration of the Property, such proceeds or award shall be applied to such
restoration notwithstanding any provision in the Existing Debt Documents to the
contrary.
(c) If the Liquidity Agent shall enter into a non-disturbance
agreement with a tenant of any portion of the Property, then the Existing Debt
Agent shall be obligated to execute a non-disturbance agreement with such
tenant, provided that such agreement shall not impose any obligations on the
Existing Lenders.
(d) In the event that the Liquidity Agent enforces its right
to sell the Property pursuant to the Liquidity Mortgage, the Liquidity Agent
agrees to act in a commercially reasonably manner to maximize the value of the
Property.
6. Distribution of Proceeds. The proceeds of (i) any sale or
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refinancing of the Property or any part thereof or any interest therein, (ii)
any insurance proceeds or condemnation awards in respect of the Property which
are not released to Safety-Kleen for restoration, (iii) any other proceeds or
other payments or receipts on account of the Liquidity Mortgage and the Existing
Mortgage shall be applied to pay:
(a) first, all costs and expenses (including, without limitation,
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attorneys' fees and disbursements) incurred by the Liquidity
Agent in collecting or realizing any such sums;
(b) second, all interest and other amounts (other than principal)
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due to the Liquidity Agent under the Liquidity Loan Documents
(including, without limitation, interest accruing after the
commencement of a bankruptcy, reorganization or other
insolvency proceeding whether such interest is allowable in
such proceeding or not);
(c) third, to all principal on account of the Liquidity Loan due
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to the Liquidity Agent under the Liquidity Loan Documents;
(d) fourth, principal and accrued interest due to the Existing
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Debt Agent on account of the Existing Debt (including, without
limitation, interest accruing after the
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9
commencement of a bankruptcy, reorganization or other insol-
vency proceeding whether such interest is allowable in such
proceeding or not);
(e) fifth, the balance, if any, to Safety-Kleen or any other
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person lawfully entitled to suchamounts.
7. Reinstatement. This Agreement or any provision hereof
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shall continue to be effective, or be reinstated, as the case may be, including,
without limitation the reinstatement of the Liquidity Agent, to its capacity as
the Liquidity Agent with all of the rights set forth in this Agreement, if at
any time payment, or any part thereof, of any of the Liquidity Obligations is
avoided, rescinded or must otherwise be restored or returned by the Liquidity
Agent upon or as a result of the insolvency, bankruptcy, dissolution,
liquidation or reorganization of Safety-Kleen, or upon or as a result of the
appointment of a receiver, intervenor or conservator of, or trustee or similar
officer for, Safety-Kleen or any substantial part of its property, or otherwise,
all as though such payments had not been made.
8. Severability. Any provision of this Agreement which is
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prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
9. No Waiver. No waiver shall be deemed to be made by the
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Liquidity Agent of any of its rights hereunder, or under the Liquidity Loan
Documents, unless the same shall be in writing and signed by the Liquidity
Agent, and each waiver, if any, shall be a waiver only with respect to the
specific instances involved and shall in no way impair the rights of the
Liquidity Agent in any other respect at any other time.
10. Recordation of this Agreement. This Agreement is intended
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to be recorded in the Recorder's Office.
11. Parties. This Agreement shall be binding upon, and shall
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inure to the benefit of the Liquidity Agent and Existing Debt Agent and their
respective successors and assigns, including, without limitation, all future
holders of the Liquidity Loan and the Existing Debt.
12. Amendments. No provision of this Agreement shall be
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waived, amended or supplemented except by written agreement of the party charged
with such waiver, amendment or supplement.
13. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND
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OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF ILLINOIS.
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14. Submission to Jurisdiction. Each party hereto hereby
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submits to the jurisdiction of the Courts of the State of New York and the
United States District Court of the Southern District of New York for the
purpose of resolution of any and all actions brought hereunder. Each party
hereto irrevocably waives any objections, including without limitation any
objection to the laying of venue or based on the grounds of forum non
conveniens, which it may now or hereafter have to the bringing of any such
action or proceeding in any such jurisdiction.
15. WAIVERS OF JURY TRIAL. THE LIQUIDITY AGENT, THE EXISTING
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DEBT AGENT AND SAFETY-KLEEN HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL
BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT AND FOR ANY
COUNTERCLAIM THEREIN.
16. No Third Party Beneficiaries. Nothing contained in this
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Agreement shall be deemed to indicate that this Agreement has been entered into
for the benefit of any person other than the Liquidity Agent and the Existing
Debt Agent.
17. Notices. All notices required to be given hereunder shall
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be sent by the methods and at the addresses set forth in the Liquidity Loan
Agreement or, in the case of the Existing Debt Agent, in the Existing Credit
Agreement.
18. Counterparts. This Agreement and the consent hereto may
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be executed in counterparts, all of which, taken together, shall constitute one
and the same instrument, and any of the parties hereto may execute this Agree-
ment by signing any such counterpart.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
Liquidity Agent:
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TORONTO DOMINION (TEXAS), INC.,as
administrative agent and collateral
agent for the Liquidity Lenders
By: /s/ Warren Finlay
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Name: Warren Finlay
Title: President
Existing Debt Agent:
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TORONTO DOMINION (TEXAS), INC.,
as general amdinistrative agent for
the Existing Lenders
By: /s/ Warren Finlay
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Name: Warren Finlay
Title: President
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The undersigned, Safety-Kleen, hereby agrees to comply with
all the terms and provisions of this Agreement in all respects.
SAFETY-KLEEN SYSTEMS, INC.(formerly
known as Safety-Kleen Corp.)
By: /s/ Henry H. Taylor
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Name: Henry H. Taylor
Title: Secretary
<PAGE>
COUNTY OF HARRIS )
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STATE OF TEXAS ) ss.:
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On the 16th day of March in the year 2000 before me, the undersigned, a notary
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notary public in and for said State, personally appeared Warren Finlay
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personally known to me or proved to me on the basis of satisfactory evidence to
be the individual whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his/her capacity, and that by
his/her signature on the instrument, the individual, or the person upon behalf
of which the individual acted, executed the instrument.
/s/ Stacey L. Ahrendt [Notary Seal]
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Notary Public
<PAGE>
COUNTY OF RICHLAND )
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STATE OF SOUTH CAROLINA ) ss.:
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On the 16TH day of March in the year 2000 before me, the undersigned, a notary
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notary public in and for said State, personally appeared Henry H. Taylor
------------------
personally known to me or proved to me on the basis of satisfactory evidence to
be the individual whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his/her capacity, and that by
his/her signature on the instrument, the individual, or the person upon behalf
of which the individual acted, executed the instrument.
/s/ Helen P. Smith
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Notary Public
My commission expires 01-30-09
[Notary Seal]
<PAGE>
SCHEDULE A
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DESCRIPTION THE PREMISES
PARCEL ONE:
THAT PART OF SECTIONS 5, 8 AND 9. TOWNSHIP 41 NORTH, RANGE 6 EAST OF THE THIRD
PRINCIPAL MERIDIAN, DESCRIBED AS FOLLOWS: COMMENCING AT THE NORTH EAST CORNER OF
SAID SECTION 8; THENCE NORTH 89 DEGREES, 41 MINUTES, 46 SECONDS WEST, ALONG THE
NORTH LINE OF SAID SECTION 8, A DISTANCE OF 1134.97 FEET (RECORD BEING 1139.38
FEET); THENCE SOUTH 00 DEGREES, 02 MINUTES, 50 SECONDS WEST, ALONG A LINE THAT
IF EXTENDED SOUTHERLY WOULD INTERSECT THE SOUTH LINE OF SAID SECTION 8 AT A
POINT THAT IS 1067.26 FEET (RECORD BEING 1065.24 FEET: WESTERLY OF, AS MEASURED
ALONG SAID SOUTH LINE, THE SOUTH EAST CORNER OF SAID SECTION 8, (THIS LINE
HEREAFTER REFERRED TO AS "LINE A"). A DISTANCE OF 33.31 FEET FOR THE POINT OF
BEGINNING; THENCE CONTINUING SOUTH 00 DEGREES, 02 MINUTES, 50 SECONDS WEST,
ALONG SAID "LINE A", A DISTANCE OF 336.69 FEET; THENCE NORTH 49 DEGREES, 44
MINUTES, 45 SECONDS WEST, A DISTANCE OF 410.00 FEET; THENCE NORTH 40 DEGREES, 15
MINUTES, 15 SECONDS EAST, A DISTANCE OF 50.00 FEET; THENCE NORTH 49 DEGREES, 44
MINUTES, 45 SECONDS WEST, A DISTANCE OF 200.00 FEET; THENCE NORTH 13
-1-
<PAGE>
SCHEDULE A CONTINUED
DEGREES, 15 MINUTES, 15 SECONDS EAST, A DISTANCE OF 360.00 FEET; THENCE NORTH 78
DEGREES, 44 MINUTES, 45 SECONDS WEST, A DISTANCE OF 310.00 FEET; THENCE SOUTH 34
DEGREES, 15 MINUTES, 15 SECONDS WEST, A DISTANCE OF 310.00 FEET; THENCE SOUTH 00
DEGREES, 18 MINUTES, 14 SECONDS WEST, A DISTANCE OF 204.24 FEET TO THE SOUTH
LINE OF THE SOUTH EAST 1/4 OF SAID SECTION 5; THENCE SOUTH 89 DEGREES, 41
MINUTES, 46 SECONDS EAST, ALONG SAID SOUTH LINE, A DISTANCE OF 360.40 FEET TO A
POINT THAT IS 440.00 FEET WESTERLY OF "LINE A", AS MEASURED ALONG THE SOUTH LINE
OF SAID SECTION 5; THENCE SOUTH 00 DEGREES, 02 MINUTES, 50 SECONDS WEST,
PARALLEL WITH SAID "LINE A", A DISTANCE OF 834.95 FEET: THENCE SOUTH 89 DEGREES,
57 MINUTES, 10 SECONDS EAST, A DISTANCE OF 407.00 FEET TO A POINT ON A LINE THAT
IS 33.00 FEET WESTERLY OF, AS MEASURED AT RIGHT ANGLES AND PARALLEL WITH SAID
"LINE A"; THENCE SOUTH 00 DEGREES, 02 MINUTES, 50 SECONDS WEST, ALONG SAID
PARALLEL LINE, A DISTANCE OF 386.51 FEET TO A POINT THAT IS 1400.00 FEET, AS
MEASURED ALONG SAID LINE, NORTHERLY OF THE CENTER LINE OF HIGHLAND AVENUE ROAD
AS PLATTED ON WEST HIGHLAND ACRES, BEING A SUBDIVISION OF PART OF SAID SECTION
8; THENCE SOUTH 74 DEGREE, 42 MINUTES, 18 SECONDS EAST, A DISTANCE OF 764.00
FEET; THENCE SOUTH 08 DEGREES, 39 MINUTES, 29 SECONDS WEST, A DISTANCE OF
1219.57 FEET TO A POINT ON THE SOUTH LINE ON THE NORTH EAST 1/4 OF SAID SECTION
8 THAT IS 586.10 FEET, AS MEASURED ALONG SAID SOUTH LINE, WEST OF THE SOUTH EAST
CORNER OF THE NORTH EAST 1/4 OF SAID SECTION 8; THENCE NORTH 89 DEGREES, 32
MINUTES, 11 SECONDS EAST, ALONG SAID SOUTH LINE, A DISTANCE OF 576.99 FEET TO
THE WESTERLY RIGHT OF WAY LINE OF RANDALL ROAD; THENCE NORTHERLY, ALONG SAID
WESTERLY RIGHT OF WAY LINE, BEING ALONG A CURVE TO THE RIGHT, HAVING A RADIUS OF
2361.83 FEET, A DISTANCE OF 380.11 FEET; THENCE NORTH 22 DEGREES, 59 MINUTES, 59
SECONDS EAST, ALONG SAID WESTERLY RIGHT OF WAY LINE, TANGENT TO THE LAST
DESCRIBED CURVE, A DISTANCE OF 133.22 FEET; THENCE NORTHEASTERLY, ALONG SAID
WESTERLY RIGHT OF WAY LINE, BEING ALONG A CURVE TO THE LEFT HAVING A RADIUS OF
15,556.13 FEET AND BEING TANGENT TO THE LAST DESCRIBED COURSE, A DISTANCE OF
1135.72 FEET; THENCE NORTH 18 DEGREES, 49 MINUTES, 00 SECONDS EAST, ALONG SAID
WESTERLY RIGHT OF WAY LINE, BEING TANGENT TO THE LAST DESCRIBED CURVE, A
DISTANCE OF 336.25 FEET TO THE SOUTHERLY LINE OF FLETCHER DRIVE AS MONUMENTED IN
OAK CREEK. BEING A SUBDIVISION OF PART OF SAID SECTIONS 8 AND 9; THENCE NORTH 84
DEGREES, 07 MINUTES, 20 SECONDS WEST, ALONG SAID SOUTHERLY LINE, A DISTANCE OF
109.34 FEET; THENCE SOUTHWESTERLY, ALONG SAID SOUTHERLY LINE, BEING ALONG A
CURVE TO THE LEFT HAVING A RADIUS OF 128.00 FEET (RECORD BEING 128.03 FEET) AND
BEING TANGENT TO THE LAST DESCRIBED COURSE, A DISTANCE OF 77.07 FEET (RECORD
BEING 77.09 FEET); THENCE SOUTH 61 DEGREES, 22 MINUTES, 45 SECONDS WEST, ALONG
SAID SOUTHERLY LINE, BEING TANGENT TO THE LAST DESCRIBED CURVE, A DISTANCE OF
60.30 FEET; THENCE SOUTHWESTERLY AND NORTHWESTERLY, ALONG SAID SOUTHERLY LINE,
BEING ALONG A CURVE TO THE RIGHT, HAVING A RADIUS OF 193.99 FEET AND BEING
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<PAGE>
SCHEDULE A CONTINUED
TANGENT TO THE LAST DESCRIBED COURSE, A DISTANCE OF 159.13 FEET; THENCE NORTH 71
DEGREES, 37 MINUTES, 16 SECONDS WEST, ALONG SAID SOUTHERLY LINE, BEING TANGENT
TO THE LAST DESCRIBED CURVE, A DISTANCE OF 55.28 FEET; THENCE NORTHWESTERLY,
ALONG SAID SOUTHERLY LINE, BEING ALONG A CURVE TO THE RIGHT HAVING A RADIUS OF
552.26 FEET AND BEING TANGENT TO THE LAST DESCRIBED COURSE, A DISTANCE OF 106.02
FEET; THENCE NORTH 60 DEGREES, 37 MINUTES, 18 SECONDS WEST, ALONG SAID SOUTHERLY
LINE, BEING TANGENT TO THE LAST DESCRIBED CURVE, A DISTANCE OF 254.65 FEET TO
THE SOUTHWESTERLY CORNER OF SAID FLETCHER DRIVE AS MONUMENTED; THENCE NORTH 17
DEGREES, 28 MINUTES, 12 SECONDS EAST, ALONG THE WESTERLY LINE OF SAID OAK CREEK
AS MONUMENTED, A DISTANCE 346.63 FEET TO THE NORTH WEST CORNER OF LOT 2; THENCE
NORTH 37 DEGREES, 36 MINUTES, 29 SECONDS WEST, A DISTANCE OF 394.75 FEET; THENCE
SOUTH 57 DEGREES, 38 MINUTES, 53 SECONDS WEST, A DISTANCE OF 180.00 FEET; THENCE
SOUTH 20 DEGREES, 3 MINUTES, 49 SECONDS WEST, A DISTANCE OF 309.98 FEET; THENCE
NORTH 58 DEGREES, 03 MINUTES, 53 SECONDS WEST, A DISTANCE OF 588.89 FEET; THENCE
NORTH 60 DEGREES, 2 MINUTES, 26 SECONDS WEST, A DISTANCE OF 143.96 FEET TO THE
POINT OF BEGINNING, IN THE CITY OF OF ELGIN AND OF TOWNSHIP OF ELGIN, KANE
COUNTY, ILLINOIS.
PARCEL TWO: EASEMENT FOR UTILITIES, INGRESS AND EGRESS AS RESERVED IN DEED
RECORDED JANUARY 15, 1985 AS DOCUMENT 1708349 MADE BY CLARENCE D. BURNIDGE AND
OTHERS TO WESTMINISTER PRESBYTERIAN CHURCH FOR THE BENEFIT OF PARCEL 1 OVER THAT
PART OF THE EAST 1/2 OF SECTION 8, TOWNSHIP 41 NORTH, RANGE 8 EAST OF THE THIRD
PRINCIPAL MERIDIAN. DESCRIBED AS FOLLOWS: COMMENCING AT THE NORTH EAST CORNER OF
SAID SECTION 8; THENCE NORTH 89 DEGREES, 41 MINUTES, 46 SECONDS WEST, ALONG THE
NORTH LINE OF SAID SECTION 8, A DISTANCE OF 1134.97 FEET (RECORD BEING 1139.38
FEET); THENCE SOUTH 00 DEGREES, 02 MINUTES, 5 SECONDS WEST, ALONG A LINE THAT IF
EXTENDED SOUTHERLY WOULD INTERSECT THE SOUTH LINE OF SAID SECTION 8 AT A POINT
THAT IS 1067.26 FEET (RECORD BEING 1065.24 FEET), WESTERLY OF, AS MEASURED ALONG
SAID SOUTHERLY LINE, THE SOUTH EAST CORNER OF SAID SECTION 8, (THIS LINE
HEREAFTER REFERRED TO AS "LINE A"), A DISTANCE OF 370.00 FEET; THENCE NORTH 4
DEGREES, 44 MINUTES, 45 SECONDS WEST, A DISTANCE OF 410.00 FEET; THENCE NORTH 40
DEGREES, 15 MINUTES, 15 SECONDS EAST, A DISTANCE OF 50.00 FEET; THENCE NORTH 49
DEGREES, 44 MINUTES, 45 SECONDS WEST, A DISTANCE OF 200.00 FEET; THENCE NORTH 18
DEGREES, 15 MINUTES, 15 SECONDS EAST, A DISTANCE OF 360.00 FEET; THENCE NORTH 78
DEGREES, 4 MINUTES, 45 SECONDS WEST, A DISTANCE OF 310.00 FEET; THENCE SOUTH
[ILLEGIBLE] DEGREES, 15 MINUTES, 15 SECONDS WEST, A DISTANCE OF 310.00 FEET;
THENCE SOUTH 0 DEGREES, 18 MINUTES, 14 SECONDS WEST, A DISTANCE OF 204.24 FEET
TO THE SOUTH LINE OF THE SOUTH EAST 1/4 OF SECTION 5, TOWNSHIP AND RANGE
AFORESAID; THENCE SOUTH 89 DEGREES, 41 MINUTES,
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<PAGE>
SCHEDULE A CONTINUED
SECONDS EAST, ALONG SAID SOUTH LINE, A DISTANCE OF 360.40 FEET TO A POINT THAT
IS 440.00 FEET WESTERLY OF "LINE A", AS MEASURED ALONG THE SOUTH LINE OF SAID
SECTION 5; THENCE SOUTH 00 DEGREES, 02 MINUTES, 50 SECONDS WEST, PARALLEL WITH
SAID "LINE A", A DISTANCE OF 884.94 FEET; THENCE SOUTH 89 DEGREES, 57 MINUTES,
10 SECONDS EAST, A DISTANCE OF 407.00 FEET TO A POINT ON A LINE THAT IS 33.00
FEET WESTERLY OF, AS MEASURED AT RIGHT ANGLES AND PARALLEL WITH SAID "LINE A";
THENCE SOUTH 00 DEGREES, 02 MINUTES, 50 SECONDS WEST, ALONG SAID PARALLEL LINE,
A DISTANCE OF 386.51 FEET TO A POINT (THIS POINT HEREAFTER REFERRED TO AS POINT
"B"); THENCE CONTINUING SOUTH 00 DEGREES, 02 MINUTES, 50 SECONDS WEST, ALONG
SAID PARALLEL LINE, A DISTANCE OF 1400.00 FEET TO THE CENTER LINE OF HIGHLAND
AVENUE ROAD AS PLATTED ON WEST HIGHLAND ACRES, BEING A SUBDIVISION OF PART OF
SAID SECTION 8; THENCE SOUTH 44 DEGREES, 19 MINUTES, 17 SECONDS EAST, ALONG SAID
CENTER LINE, A DISTANCE OF 47.19 FEET; THENCE SOUTH 44 DEGREES, 36 MINUTES, 23
SECONDS EAST, ALONG THE CENTER LINE OF HIGHLAND AVENUE ROAD AS PLATTED ON THE
THIRD ADDITION TO ALMORA HEIGHTS, BEING A SUBDIVISION OF PART OF SECTIONS 5 AND
17, TOWNSHIP AND RANGE AFORESAID, A DISTANCE OF 311.25 FEET; THENCE
SOUTHEASTERLY, ALONG SAID CENTER LINE, BEING ALONG A CURVE TO THE LEFT HAVING A
RADIUS OF 8040.94 FEET AND BEING TANGENT TO THE LAST DESCRIBED COURSE, A
DISTANCE OF 147.00 FEET FOR THE POINT OF BEGINNING; THENCE CONTINUING
SOUTHEASTERLY, ALONG SAID CURVE AND CENTER LINE, A DISTANCE OF 163.03 FEET TO A
POINT THAT IS 471.64 FEET, AS MEASURED ALONG A LINE THAT BEARS SOUTH 09 DEGREES,
53 MINUTES, 43 SECONDS WEST, FROM A POINT ON THE SOUTH LINE OF THE NORTH EAST
1/4 OF SAID SECTION 8 THAT IS 586.10 FEET WESTERLY OF, AS MEASURED ALONG SAID
SOUTH LINE, THE SOUTH EAST CORNER OF SAID NORTH EAST 1/4; THENCE NORTH 09
DEGREES, 53 MINUTES, 43 SECONDS EAST, A DISTANCE OF 471.64 FEET TO SAID POINT ON
THE SOUTH LINE OF THE NORTH EAST 1/4; THENCE NORTH 08 DEGREES, 39 MINUTES, 29
SECONDS EAST, A DISTANCE OF 250.00 FEET, BEING ALONG A LINE THAT IF EXTENDED
NORTHEASTERLY WOULD INTERSECT A LINE THAT BEARS SOUTH 74 DEGREES, 42 MINUTES, 13
SECONDS EAST AT A POINT THAT IS 764.00 FEET FROM THE AFORESAID POINT "B"; THENCE
NORTH 81 DEGREES, 20 MINUTES, 31 SECONDS WEST, A DISTANCE OF 66.00 FEET; THENCE
SOUTH 08 DEGREES, 39 MINUTES, 29 SECONDS WEST, A DISTANCE OF 249.29 FEET; THENCE
SOUTH 09 DEGREES, 53 MINUTES, 43 SECONDS WEST, A DISTANCE OF 194.65 FEET TO A
POINT OF CURVE; THENCE SOUTHWESTERLY ALONG A CURVE TO THE RIGHT HAVING A RADIUS
OF 271.03 FEET AND BEING TANGENT TO THE LAST DESCRIBED COURSE, A DISTANCE OF
161.78 FEET; THENCE SOUTH 44 DEGREES, 06 MINUTES, 40 SECONDS WEST, TANGENT TO
THE LAST DESCRIBED CURVE, A DISTANCE OF 40.00 FEET TO THE POINT OF BEGINNING, IN
THE TOWNSHIP OF ELGIN, KANE COUNTY, ILLINOIS.
PARCEL THREE:
FLETCHER DRIVE (A PRIVATE ROAD) AS ESTABLISHED ON THE PLAT OF OAK CREEK, IN THE
TOWNSHIP OF ELGIN, KANE COUNTY, ILLINOIS.
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<PAGE>
SCHEDULE A CONTINUED
PARCEL FOUR:
LOT 1 OF OAK CREEK, IN THE TOWNSHIP OF ELGIN, KANE COUNTY, ILLINOIS.
PARCEL FIVE:
LOT 2 OF OAK CREEK, IN THE TOWNSHIP OF ELGIN, KANE COUNTY, ILLINOIS.
PARCEL SIX: THAT PART OF THE NORTH WEST 1/4 OF SECTION 9, TOWNSHIP 41 NORTH,
RANGE 8 EAST OF THE THIRD PRINCIPAL MERIDIAN, DESCRIBED AS FOLLOWS: COMMENCING
AT THE INTERSECTION OF THE NORTH LINE OF SAID NORTH WEST 1/4 WITH THE CENTER
LINE OF RANDALL ROAD; THENCE SOUTHWESTERLY ALONG SAID CENTER LINE, A DISTANCE OF
839.3 FEET; THENCE WESTERLY ALONG A LINE THAT FORMS AN ANGLE OF 71 DEGREES, 30
MINUTES, 0 SECONDS TO THE RIGHT WITH THE PROLONGATION OF THE LAST DESCRIBED
COURSE, A DISTANCE OF 42.18 FEET TO THE WESTERLY LINE OF RANDALL ROAD FOR THE
POINT OF BEGINNING; THENCE WESTERLY ALONG AN EXTENSION OF THE LAST DESCRIBED
COURSE, BEING ALONG THE NORTHERLY LINE OF FLETCHER DRIVE, AS PLATTED IN OAK
CREEK, A SUBDIVISION OF PART OF SECTIONS 8 AND 9, TOWNSHIP AND RANGE AFORESAID,
A DISTANCE OF 211.31 FEET; THENCE WESTERLY ALONG SAID NORTHERLY LINE, BEING
ALONG A CURVE TO THE LEFT HAVING A RADIUS OF 194.03 FEET AND BEING TANGENT TO
THE LAST DESCRIBED COURSE, A DISTANCE OF 76.93 FEET TO THE SOUTH EAST CORNER OF
LOT 1 IN SAID OAK CREEK; THENCE NORTHERLY ALONG THE EAST LINE OF SAID LOT 1; A
DISTANCE OF 385.70 FEET TO THE NORTH EAST CORNER OF SAID LOT 1; THENCE
SOUTHEASTERLY ALONG A LINE THAT FORMS AN ANGLE OF 98 DEGREES, 53 MINUTES, 0
SECONDS TO THE RIGHT WITH THE PROLONGATION OF THE LAST DESCRIBED COURSE, A
DISTANCE OF 428.09 FEET TO A POINT ON THE WESTERLY LINE OF RANDALL ROAD THAT IS
352.95 FEET NORTHEASTERLY OF, AS MEASURED ALONG SAID WESTERLY LINE, THE POINT OF
BEGINNING; THENCE SOUTHWESTERLY ALONG SAID WESTERLY LINE, A DISTANCE OF 352.95
FEET TO THE POINT OF BEGINNING (EXCEPT THAT PART FALLING EASTERLY OF THE NEW
WESTERLY RIGHT OF WAY LINE, AS MONUMENTED, OF RANDALL ROAD), IN THE TOWNSHIP OF
ELGIN, KANE COUNTY, ILLINOIS.
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