ASSIGNMENT OF DEPOSIT ACCOUNT
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PRINCIPAL LOAN DATE MATURITY LOAN NO CALL/COLL ACCOUNT OFFICER INITIALS
$800,000.00 05-03-2007 05-02-2008 422 086
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References in the shaded area are for Lender's use only and do not limit the
applicability of this document to any particular loan or item. Any item above
containing "- - - " has been omitted due to text length limitations.
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GRANTOR: AMERICAN CONSUMERS, INC. DBA SHOP RITE LENDER: GATEWAY BANK & TRUST
00 XXXXXX XXX XXXX
XXXXXXXXX, XX 00000 0000 XXXXXXX XXX
XXXXXXXX, XX 00000
(000) 000-0000
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THIS ASSIGNMENT OF DEPOSIT ACCOUNT dated May 3, 2007, is made and executed
between AMERICAN CONSUMERS, INC. DBA SHOP RITE ("Grantor") and GATEWAY BANK &
TRUST ("Lender").
ASSIGNMENT. For valuable consideration, Grantor assigns and grants to Lender a
security interest in the Collateral, including without limitation the deposit
accounts described below, to secure the Indebtedness and agrees that Lender
shall have the rights stated in this Agreement with respect to the Collateral,
in addition to all other rights which Lender may have by law.
COLLATERAL DESCRIPTION. The word "Collateral" means the following described
deposit account ("Account"):
CD#28-6873622 WITH THE APPROXIMATE BALANCE OF $312,161.01 HELD AT
NORTHWEST GEORGIA BANK
together with (A) all interest, whether now accrued or hereafter accruing; (B)
all additional deposits hereafter made to the Account; (C) any and all proceeds
from the Account; and (D) all renewals, replacements and substitutions for any
of the foregoing.
CROSS-COLLATERALIZATION. In addition to the Note, this Agreement secures all
obligations, debts and liabilities, plus interest thereon, of Grantor to Lender,
or any one or more of them, as well as all claims by Lender against Grantor or
any one or more of them, whether now existing or hereafter arising, whether
related or unrelated to the purpose of the Note, whether voluntary or otherwise,
whether due or not due, direct or indirect, determined or undetermined, absolute
or contingent, liquidated or unliquidated, whether Grantor may be liable
individually or jointly with others, whether obligated as guarantor, surety,
accommodation party or otherwise, and whether recovery upon such amounts may be
or hereafter may become barred by any statute of limitations, and whether the
obligation to repay such amounts may be or hereafter may become otherwise
unenforceable.
RIGHT OF SETOFF. To the extent permitted by applicable law, Lender reserves a
right of setoff in all Grantor's accounts with Lender (whether checking,
savings, or some other account). This includes all accounts Grantor holds
jointly with someone else and all accounts Grantor may open in the future.
However, this does not include any IRA or Xxxxx accounts, or any trust accounts
for which setoff would be prohibited by law. Grantor authorizes Xxxxxx, to the
extent permitted by applicable law, to charge or setoff all sums owing on the
Indebtedness against any and all such accounts, and, at Xxxxxx's option, to
administratively freeze all such accounts to allow Lender to protect Xxxxxx's
charge and setoff rights provided in this paragraph.
XXXXXXX'S REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE COLLATERAL. With
respect to the Collateral, Grantor represents and promises to Lender that:
Ownership. Grantor is the lawful owner of the Collateral free and
clear of all loans, liens, encumbrances, and claims except as disclosed to
and accepted by Xxxxxx in writing.
Right to Grant Security Interest. Grantor has the full right, power,
and authority to enter into this Agreement and to assign the Collateral to
Lender.
No Prior Assignment. Grantor has not previously granted a security
interest in the Collateral to any other creditor.
No Further Transfer. Grantor shall not sell, assign, encumber, or
otherwise dispose of any of Grantor's rights in the Collateral except as
provided in this Agreement.
No Defaults. There are no defaults relating to the Collateral, and
there are no offsets or counterclaims to the same. Grantor will strictly
and promptly do everything required of Grantor under the terms, conditions,
promises, and agreements contained in or relating to the Collateral.
Notice to Third Party Issuer. With regard to any certificates of
deposit or similar Collateral for which Xxxxxx is not the issuer, Xxxxxxx
agrees to notify the issuer or obligor of the interests hereby granted to
Lender and to obtain from such issuer or obligor (a) acknowledgment of the
interests in favor of Xxxxxx, and (b) the issuer's or obligor's agreement
to waive in favor of Lender any and all rights of set-off or similar rights
or remedies to which issuer or obligor may be entitled. Xxxxxxx further
agrees, in connection therewith, to execute and cause the issuer or obligor
to execute any and all acknowledgments, waivers and other agreements in
such form and upon such terms as Lender may request.
Proceeds. Any and all replacement or renewal certificates,
instruments, or other benefits or proceeds related to the Collateral that
are received by Grantor shall be held by Grantor in trust for Lender and
immediately shall be delivered by Grantor to Lender to be held as part of
the Collateral.
Validity; Binding Effect. This Agreement is binding upon Grantor and
Xxxxxxx's successors and assigns and is legally enforceable in accordance
with its terms.
Financing Statements. Grantor authorizes Lender to file a UCC
financing statement, or alternatively, a copy of this Agreement to perfect
Xxxxxx's security interest. At Xxxxxx's request, Xxxxxxx additionally
agrees to sign all other documents that are necessary to perfect, protect,
end continue Xxxxxx's security interest in the Property. Grantor will pay
all filing fees, title transfer fees, and other fees and costs involved
unless prohibited by law or unless Lender is required by law to pay such
fees and costs. Grantor irrevocably appoints Xxxxxx to execute documents
necessary to transfer title if there is a default. Lender may file a copy
of this Agreement as a financing statement. If Grantor changes Grantor's
name or address, or the name or address of any person granting a security
interest under this Agreement changes, Grantor will promptly notify the
Lender of such change.
XXXXXX'S RIGHTS AND OBLIGATIONS WITH RESPECT TO THE COLLATERAL. While this
Agreement is in effect, Lender may retain the rights to possession of the
Collateral, together with any and all evidence of the Collateral, such as
certificates or passbooks. Lender may notify the institution which issued the
Collateral of this Agreement. Grantor agrees that such institution will not pay
any amount on the Collateral, other than to Lender, so long as this Agreement is
in effect. This Agreement will remain in effect until (a) there no longer is any
Indebtedness owing to Lender; (b) all other obligations secured by this
Agreement have been fulfilled; and (c) Grantor, in writing, has requested from
Lender a release of this Agreement.
XXXXXX'S EXPENDITURES. If any action or proceeding is commenced that would
materially affect Xxxxxx's interest in the Collateral or if Grantor fails to
comply with any provision of this Agreement or any Related Documents, including
but not limited to Grantor's failure to discharge or pay when due any amounts
Grantor is required to discharge or pay under this Agreement or any Related
Documents, Lender on Grantor's behalf may (but shall not be obligated to) take
any action that Lender deems appropriate, including but not limited to
discharging or paying all taxes, liens, security interests, encumbrances and
other claims, at any time levied or placed on the Collateral and paying all
costs for insuring, maintaining and preserving the Collateral. All such
expenditures incurred or paid by Lender for such purposes will then bear
interest at the rate charged under the Note from the date incurred or paid by
Lender to the date of repayment by Grantor. All such expenses will become a part
of the Indebtedness and, at Lender's option, will (A) be payable on demand; (B)
be added to the balance of the Note and be apportioned among and be payable with
any installment payments to become due during either (1) the term of any
applicable insurance policy; or (2) the remaining term of the Note; or (C) be
treated as a balloon payment which will be due and payable at the Note's
maturity. The Agreement also will secure payment of these amounts. Such right
shall be in addition to all other rights and remedies to which Xxxxxx may be
entitled upon Default.
LIMITATIONS ON OBLIGATIONS OF LENDER. Lender shall use ordinary reasonable care
in the physical preservation and custody of any certificate or passbook for the
Collateral but shall have no other obligation to protect the Collateral or its
value. In particular, but without limitation, Lender shall have no
responsibility (A) for the collection or protection of any income on the
Collateral; (B) for the preservation of rights against issuers of the Collateral
or against third persons; (C) for ascertaining any maturities, conversions,
exchanges, offers, tenders, or similar matters relating to the Collateral; nor
(D) for informing the Grantor about any of the above, whether or not Lender has
or is deemed to have knowledge of such matters.
DEFAULT. Each of the following shall constitute an Event of Default under this
Agreement:
Payment Default. Grantor fails to make any payment when due under the
Indebtedness.
Other Defaults. Grantor fails to comply with or to perform any other
term, obligation, covenant or condition contained in this Agreement or
ASSIGNMENT OF DEPOSIT ACCOUNT
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in any of the Related Documents or to comply with or to perform any
term, obligation, covenant or condition contained in any other agreement
between Lender and Grantor.
Default in Favor of Third Parties. Should Grantor or any Grantor
default under any loan, extension of credit, security agreement, purchase
or sales agreement, or any other agreement, in favor of any other creditor
or person that may materially affect any of Grantor's property or Grantor's
or any Grantor's ability to repay the Indebtedness or perform their
respective obligations under this Agreement or any of the Related
Documents.
False Statements. Any warranty, representation or statement made or
furnished to Lender by Grantor or on Grantor's behalf under this Agreement
or the Related Documents is false or misleading in any material respect,
either now or at the time made or furnished or becomes false or misleading
at any time thereafter.
Defective Collateralization. This Agreement or any of the Related
Documents ceases to be in full force and effect (including failure of any
collateral document to create a valid and perfected security interest or
lien) at any time and for any reason.
Insolvency. The dissolution or termination of Xxxxxxx's existence as a
going business, the insolvency of Grantor, the appointment of a receiver
for any part of Grantor's property, any assignment for the benefit of
creditors, any type of creditor workout, or the commencement of any
proceeding under any bankruptcy or insolvency laws by or against Grantor.
Creditor or Forfeiture Proceedings. Commencement of foreclosure or
forfeiture proceedings, whether by judicial proceeding, self-help,
repossession or any other method, by any creditor of Grantor or by any
governmental agency against any collateral securing the Indebtedness. This
includes a garnishment of any of Grantor's accounts, including deposit
accounts, with Xxxxxx. However, this Event of Default shall not apply if
there is a good faith dispute by Grantor as to the validity or
reasonableness of the claim which is the basis of the creditor or
forfeiture proceeding and if Grantor gives Xxxxxx written notice of the
creditor or forfeiture proceeding and deposits with Lender monies or a
surety bond for the creditor or forfeiture proceeding, in an amount
determined by Lender, in its sole discretion, as being an adequate reserve
or bond for the dispute.
Events Affecting Guarantor. Any of the preceding events occurs with
respect to any Guarantor of any of the Indebtedness or Guarantor dies or
becomes incompetent or revokes or disputes the validity of, or liability
under, any Guaranty of the Indebtedness.
Adverse Change. A material adverse change occurs in Grantor's
financial condition, or Xxxxxx believes the prospect of payment or
performance of the Indebtedness is impaired.
Insecurity. Lender in good faith believes itself insecure.
RIGHTS AND REMEDIES ON DEFAULT. Upon the occurrence of an Event of Default, or
at any time thereafter, Xxxxxx may exercise any one or more of the following
rights and remedies, in addition to any rights or remedies that may be available
at law, in equity, or otherwise:
Accelerate Indebtedness. Xxxxxx may declare all Indebtedness of
Grantor to Lender immediately due and payable, without notice of any kind
to Grantor.
Surrender of Account. Xxxxxx may surrender the Account to the Issuer
and obtain payment thereunder subject to any early withdrawal penalty
imposed by the Issuer, when applicable.
Application of Account Proceeds. Xxxxxx may obtain all funds in the
Account from the issuer of the Account and apply them to the Indebtedness
in the same manner as if the Account had been issued by Xxxxxx. If the
Account is subject to an early withdrawal penalty, that penalty shall be
deducted from the Account before its application to the Indebtedness,
whether the Account is with Lender or some other institution. Any excess
funds remaining after application of the Account proceeds to the
Indebtedness will be paid to Grantor as the interests of Grantor may
appear. Xxxxxxx agrees, to the extent permitted by law, to pay any
deficiency after application of the proceeds of the Account to the
Indebtedness. Xxxxxx also shall have all the rights of a secured party
under the Georgia Uniform Commercial Code, even if the Account is not
otherwise subject to such Code concerning security interests, and the
parties to this Agreement agree that the provisions of the Code giving
rights to a secured party shall nonetheless be a part of this Agreement.
Transfer Title. Lender may effect transfer of title upon sale of all
or part of the Collateral. For this purpose, Xxxxxxx irrevocably appoints
Xxxxxx as Xxxxxxx's attorney-in-fact to execute endorsements, assignments
and instruments in the name of Grantor and each of them (if more than one)
as shall be necessary or reasonable.
Other Rights and Remedies. Lender shall have and may exercise any or
all of the rights and remedies of a secured creditor under the provisions
of the Georgia Uniform Commercial Code, at law, in equity, or otherwise.
Deficiency Judgment. If permitted by applicable law, Xxxxxx may obtain
a judgment for any deficiency remaining in the Indebtedness due to Lender
after application of all amounts received from the exercise of the rights
provided in this section.
Election of Remedies. Except as may be prohibited by applicable law,
all of Lender's rights and remedies, whether evidenced by this Agreement or
by any other writing, shall be cumulative and may be exercised singularly
or concurrently. Election by Xxxxxx to pursue any remedy shall not exclude
pursuit of any other remedy, and an election to make expenditures or to
take action to perform an obligation of Grantor under this Agreement, after
Xxxxxxx's failure to perform, shall not affect Xxxxxx's right to declare a
default and exercise its remedies.
Cumulative Remedies. All of Xxxxxx's rights and remedies, whether
evidenced by this Agreement or by any other writing, shall be cumulative
and may be exercised singularly or concurrently. Election by Xxxxxx to
pursue any remedy shall not exclude pursuit of any other remedy, and an
election to make expenditures or to take action to perform an obligation of
Grantor under this Agreement, after Xxxxxxx's failure to perform, shall not
affect Xxxxxx's right to declare a default and to exercise its remedies.
MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of
this Agreement:
Amendments. This Agreement, together with any Related Documents,
constitutes the entire understanding and agreement of the parties as to the
matters set forth in this Agreement. No alteration of or amendment to this
Agreement shall be effective unless given in writing and signed by the
party or parties sought to be charged or bound by the alteration or
amendment.
Attorneys' Fees; Expenses. Xxxxxxx agrees to pay upon demand all of
Xxxxxx's costs and expenses, including Xxxxxx's attorneys' fees and
Xxxxxx's legal expenses, incurred in connection with the enforcement of
this Agreement. Lender may hire or pay someone else to help enforce this
Agreement, and Grantor shall pay the costs and expenses of such
enforcement. Costs and expenses include Xxxxxx's attorneys' fees and legal
expenses whether or not there is a lawsuit, including attorneys' fees and
legal expenses for bankruptcy proceedings (including efforts to modify or
vacate any automatic stay or injunction), appeals, and any anticipated
post-judgment collection services. Grantor also shall pay all court costs
and such additional fees as may be directed by the court.
Caption Headings. Caption headings in this Agreement are for
convenience purposes only and are not to be used to interpret or define the
provisions of this Agreement.
Governing Law. This Agreement will be governed by federal law
applicable to Lender and, to the extent not preempted by federal law, the
laws of the State of Georgia without regard to its conflicts of law
provisions. This Agreement has been accepted by Lender In the State of
Georgia.
No Waiver by Xxxxxx. Lender shall not be deemed to have waived any
rights under this Agreement unless such waiver is given in writing and
signed by Xxxxxx. No delay or omission on the part of Lender in exercising
any right shall operate as a waiver of such right or any other right. A
waiver by Xxxxxx of a provision of this Agreement shall not prejudice or
constitute a waiver of Lender's right otherwise to demand strict compliance
with that provision or any other provision of this Agreement. No prior
waiver by Xxxxxx, nor any course of dealing between Xxxxxx and Grantor,
shall constitute a waiver of any of Lender's rights or of any of Grantor's
obligations as to any future transactions. Whenever the consent of Lender
is required under this Agreement, the granting of such consent by Lender in
any instance shall not constitute continuing consent to subsequent
instances where such consent is required and in all cases such consent may
be granted or withheld in the sole discretion of Lender.
Notices. Any notice required to be given under this Agreement shall be
given in writing, and shall be effective when actually delivered, when
actually received by telefacsimile (unless otherwise required by law), when
deposited with a nationally recognized overnight courier, or, if mailed,
when deposited in the United States mail, as first class, certified or
registered mail postage prepaid, directed to the addresses shown near the
beginning of this Agreement. Any party may change its address for notices
under this Agreement by giving formal written notice to the other parties,
specifying that the purpose of the notice is to change the party's address.
For notice purposes, Xxxxxxx agrees to keep Xxxxxx informed at all times of
Xxxxxxx's current address. Unless otherwise provided or required by law, if
there is more than one Grantor, any notice given by Lender to any Grantor
is deemed to be notice given to all Grantors.
Power of Attorney. Grantor hereby appoints Lender as its true and lawful
attorney-in-fact, irrevocably, with full power of substitution to do the
following: (1) to demand, collect, receive, receipt for, sue and recover
all sums of money or other property which may now or hereafter become due,
owing or payable from the Collateral; (2) to execute, sign and endorse any
and all claims, instruments, receipts, checks, drafts or warrants issued in
payment for the Collateral; (3) to settle or compromise any and all claims
arising under the Collateral,
ASSIGNMENT OF DEPOSIT ACCOUNT
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and in the place and stead of Grantor, to execute and deliver its release
and settlement for the claim; and (4) to file any claim or claims or to
take any action or institute or take part in any proceedings, either in its
own name or in the name of Grantor, or otherwise, which in the discretion
of Lender may seem to be necessary or advisable. This power is given as
security for the indebtedness, and the authority hereby conferred is and
shall be irrevocable and shall remain in full force and effect until
renounced by Xxxxxx.
Severability. If a court of competent jurisdiction finds any provision of
this Agreement to be illegal, invalid, or unenforceable as to any
circumstance, that finding shall not make the offending provision illegal,
invalid, or unenforceable as to any other circumstance. If feasible, the
offending provision shall be considered modified so that it becomes legal,
valid and enforceable. If the offending provision cannot be so modified, it
shall be considered deleted from this Agreement. Unless otherwise required
by law, the illegality, invalidity, or unenforceability of any provision of
this Agreement shall not affect the legality, validity or enforceability of
any other provision of this Agreement.
Successors and Assigns. Subject to any limitations stated in this Agreement
on transfer of Grantor's interest, this Agreement shall be binding upon and
inure to the benefit of the parties, their successors and assigns. If
ownership of the Collateral becomes vested in a person other than Grantor,
Lender, without notice to Grantor, may deal with Grantor's successors with
reference to this Agreement and the Indebtedness by way of forbearance or
extension without releasing Grantor from the obligations of this Agreement
or liability under the Indebtedness.
Survival of Representations and Warranties. All representations,
warranties, and agreements made by Grantor in this Agreement shall survive
the execution and delivery of this Agreement, shall be continuing in
nature, and shall remain in full force and effect until such time as
Grantor's Indebtedness shall be paid in full.
Time is of the Essence. Time is of the essence in the performance of this
Agreement.
DEFINITIONS. The following capitalized words and terms shall have the following
meanings when used in this Agreement. Unless specifically stated to the
contrary, all references to dollar amounts shall mean amounts in lawful money of
the United States of America. Words and terms used in the singular shall include
the plural, and the plural shall include the singular, as the context may
require. Words and terms not otherwise defined in this Agreement shall have the
meanings attributed to such terms in the Uniform Commercial Code:
Account. The word "Account" means the deposit accounts described in the
"Collateral Description" section.
Agreement. The word "Agreement" means this Assignment of Deposit Account,
as this Assignment of Deposit Account may be amended or modified from time
to time, together with all exhibits and schedules attached to this
Assignment of Deposit Account from time to time.
Borrower. The word "Borrower" means AMERICAN CONSUMERS, INC. DBA SHOP RITE
and includes all co-signers and co-makers signing the Note and all their
successors and assigns.
Collateral. The word "Collateral" means all of Grantor's right, title and
interest in and to all the Collateral as described in the Collateral
Description section of this Agreement.
Default. The word "Default" means the Default set forth in this Agreement
in the section titled "Default".
Event of Default. The words "Event of Default" mean any of the events of
default set forth in this Agreement in the default section of this
Agreement.
Grantor. The word "Grantor" means AMERICAN CONSUMERS, INC. DBA SHOP RITE.
Guarantor. The word "Guarantor" means any guarantor, surety, or
accommodation party of any or all of the Indebtedness.
Guaranty. The word "Guaranty" means the guaranty from Guarantor to Lender,
including without limitation a guaranty of all or part of the Note.
Indebtedness. The word "Indebtedness" means the indebtedness evidenced by
the Note or Related Documents, including all principal and interest
together with all other indebtedness and costs and expenses for which
Grantor is responsible under this Agreement or under any of the Related
Documents. Specifically, without limitation, Indebtedness includes all
amounts that may be indirectly secured by the Cross-Collateralization
provision of this Agreement.
Lender. The word "Lender" means GATEWAY BANK & TRUST, its successors and
assigns.
Note. The word "Note" means the Note executed by AMERICAN CONSUMERS, INC.
DBA SHOP RITE in the principal amount of $800,000.00 dated May 3, 2007,
together with all renewals of, extensions of, modifications of,
refinancings of, consolidations of, and substitutions for the note or
credit agreement.
Property. The word "Property" means all of Grantor's right, title and
interest in and to all the Property as described in the "Collateral
Description" section of this Agreement.
Related Documents. The words "Related Documents" mean all promissory notes,
credit agreements, loan agreements, environmental agreements, guaranties,
security agreements, mortgages, deeds of trust, security deeds, collateral
mortgages, and all other instruments, agreements and documents, whether now
or hereafter existing, executed in connection with the Indebtedness.
XXXXXXX HAS READ AND UNDERSTOOD ALL THE PROVISIONS OF THIS ASSIGNMENT OF DEPOSIT
ACCOUNT AND AGREES TO ITS TERMS. THIS AGREEMENT IS DATED MAY 3, 2007.
THIS AGREEMENT IS GIVEN UNDER SEAL AND IT IS INTENDED THAT THIS AGREEMENT IS AND
SHALL CONSTITUTE AND HAVE THE EFFECT OF A SEALED INSTRUMENT ACCORDING TO LAW.
GRANTOR:
AMERICAN CONSUMERS, INC. DBA SHOP RITE
By: /s/ Xxxxxxx X. Xxxxxxxxxx (Seal) By: /s/ Xxxx X. Xxxx (Seal)
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XXXXXXX X. XXXXXXXXXX, President of XXXX X. XXXX, Chief Financial Officer of
AMERICAN CONSUMERS, INC. DBA SHOP RITE AMERICAN CONSUMERS, INC. DBA SHOP RITE
