SECURITY AGREEMENT - CONDITIONAL SALE CONTRACT
This form is subject to Federal and State legal requirements. See Page 5 of this
form for list of States in which to use this form.
1. Describe Collateral fully including make, kind of unit, model and serial
numbers and any other pertinent information.
1-Vermeer D4x40 Navigator s/n 0XXX00000X0000000
1-Xxxxxxx XX-750 Mixing System s/n 0XXX00000X0000000
And all additions, substitutions, attachments, replacements and accessions
Thereof, plus the proceeds of all the foregoing.
2. Buyer warrants and agrees that the Collateral is to be used primarily for:
|X| business or commercial purposes (other than agricultural),
[ ] agricultural purposes (see definition on the final page), or
[ ] both agricultural and business or commercial purposes.
Location: 0000 Xxxxxxx Xx. Xxxxxxxxxxxx Xxxxxxxxxx XX 00000
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Address City County State Zip Code
Buyer and Seller agree that regardless of the manner of affixation, the
Collateral shall remain personal property and not become part of the real
estate. Buyer agrees to keep the Collateral at the location set forth above, and
will notify Seller promptly in writing of any change in the location of the
Collateral within such State, but will not remove the Collateral from such State
without the prior written consent of Seller (except that in the State of
Pennsylvania, the Collateral will not be moved from the above location without
such prior written consent).
3. BUYER'S PROMISE TO PAY; TERMS OF PAYMENT.
Buyer agrees to pay Seller the full contract time price (Item 3a) on the terms
shown below
(a) Full Contract Time Price...................................................... $ 350,382.60
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(b) Cash Down Payment paid to Seller. If none, enter "0".................. $ 67,500.00
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(c) Value of Trade-In. If none, enter "0"....................................... $ 0.00
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(d) Payment Upon Delivery. If none, enter "0"............................... $ 0.00
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(e) Contract Time Price Balance (Item 3a minus Items 3b, 3c, and 3d).... $ 282,882.60
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The Contract Time Price Balance is payable in 60 (total number) payments as
follows:
EQUAL SUCCESSIVE MONTHLY PAYMENTS
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$4,714.71 beginning on 09-26-99, and the same amount on the same date of
each month thereafter until fully paid, provided, however, that the final
payment shall be in the amount of the then unpaid balance.
OTHER THAN EQUAL SUCCESSIVE MONTHLY PAYMENTS
Principal-$227,655.36; Interest-$55,227.24
4. The Seller has offered the Buyer a choice of buying the personal property
described in Paragraph 1 for a stated cash sale price payable immediately or
within a limited number of days, or of buying such property for a contract time
which permits the Buyer to purchase it now but pay in installments over an
extended period of time. The contract time price is more than the cash sale
price because it includes charges by the Seller to compensate the Seller for
having to wait a period of time before ________ its full purchase price and for
taking a risk in waiting such period of time. The Seller hereby sells and the
Buyer hereby purchases the property from the Seller and elects to pay the
contract time price set forth in Paragraph 3. Any payment not made when due
shall, at the option of Secured Party, bear late charges thereon calculated at
the rate of 1 1/2% per month, but in no event greater than the highest rate
permitted by relevant law. Buyer shall be responsible for and pay to Seller a
returned check fee, not to exceed the maximum permitted by law, which fee will
be equal to the sum of (i) the actual bank charges incurred by Lessor plus (ii)
all other actual costs and expenses incurred by Seller. The returned check fee
is payable upon demand as indebtedness secured by the Collateral under this
Security Agreement.
5. As security for its obligation to pay the contract time price and its other
obligations under this Security Agreement, the Buyer hereby grants to the Seller
a security interest in the personal property described in Paragraph 1 together
with all attachments, replacements, substitutions, additions and proceeds,
including amounts payable under any insurance policy, all hereinafter referred
to as "Collateral."
6. Seller may hold this Security Agreement or it may assign it for value to The
CIT Group/Equipment Financing, Inc. ("CIT"). If Seller does not in fact assign
this Security Agreement to CIT, then after such assignment: (a) CIT as assignee,
shall have all the rights and remedies of Seller hereunder and all of Buyer's
agreements, representations and warranties shall be deemed to have been made to
CIT with the same force and effect as if CIT were an original party hereto; (b)
Seller shall not be CIT's agent for any purposes; (c) Seller shall not have any
power or authority to change or modify this Security Agreement or any related
document or instrument in any way (except any relevant warranty or service
agreement which is exclusively between Seller and Buyer and shall not bind CIT
or affect any of Buyer's or CIT's rights or obligations under this Security
Agreement); and (d) Buyer will settle all claims, defenses, setoffs and
counterclaims of any nature, it may have against Seller, including but not
limited to delivery of Collateral, defects in the Collateral and the like,
directly with Seller, and not set up any such claim, defense, setoff or
counterclaim against CIT, Seller hereby agreeing to remain responsible therefor.
7. Buyer acknowledges that: CIT is in no way related to or connected with
Seller; CIT has no knowledge or information as to the condition or suitability
of the Collateral for Buyer's
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purposes; and CIT's decision to purchase this Security Agreement from Seller,
if so offered, will be made in reliance on Buyer's warranties, agreements and
covenants herein, including Buyer's express agreement not to assert against CIT
any claims, defenses, setoffs or counterclaims it may now or in the future have
against Seller named below. If this Security Agreement is assigned to CIT, then
after assignment to CIT, Buyer will make all payments directly to CIT at such
places as CIT may from time to time designate in writing to Buyer.
8. Buyer warrants and represents: (a) that Buyer is justly indebted to Seller
for the full amount of the foregoing indebtedness; (b) that, except for the
security interest granted hereby, the Collateral is free from and will be kept
free from all liens, claims, security interests and encumbrances; (c) that no
financing statement covering the Collateral or any proceeds is on file in favor
of anyone other than Seller but if such other financing statement is on file, it
will be terminated or subordinated; (d) that all information supplied and
statements made by Buyer in any financial, credit or accounting statement or
application for credit prior to, contemporaneously with or subsequent to the
execution of this Security Agreement with respect to this transaction are and
shall be true, correct, valid and genuine; and (e) Buyer has full authority to
enter into this Security Agreement and in so doing it is not violating any law
or regulation or agreement with third parties, and it has taken all such action
as may be necessary or appropriate to make this Security Agreement binding upon
it.
9. Buyer agrees: (a) to defend at Buyer's own cost any action, proceeding or
claim affecting or arising from the Collateral; (b) to pay reasonable attorneys'
fees (at least 15% of the unpaid balance if not prohibited by law) and other
expenses incurred by Seller in enforcing its rights after Buyer's default; (c)
to pay promptly all taxes, assessments, license fees and other public or private
charges when levied or assessed against the Collateral or this Security
Agreement and this obligation shall survive the termination of this Security
Agreement; (d) that if a certificate of title is required or permitted by law,
Buyer shall obtain such certificate with respect to the Collateral, showing the
security interest of Seller thereon, and in any event do everything necessary
to expedient to preserve or perfect the security interest of Seller; (e) that
Buyer will not misuse, fail to keep in good repair, secrete, or without the
prior written consent of Seller, and notwithstanding Seller's claim to proceeds,
sell, rent, lend, encumber or transfer any of the Collateral; and (f) that
Seller may enter upon Buyer's premises or wherever the Collateral may be located
at any reasonable time to inspect the Collateral.
10. All risk of loss, damage to, destruction of or arising from the Collateral
shall, at all times, be on Buyer. Buyer will procure forthwith and maintain at
Buyer's expense insurance against all risks of loss or physical damage to the
Collateral for the full insurable value thereof for the life of this Security
Agreement plus breach of warranty insurance and such other insurance thereon in
amounts and against such risks as Seller may specify, and shall promptly deliver
each policy to Seller with a standard long-form mortgagee endorsement attached
thereto showing loss payable to Seller; and providing Seller with not less than
30 days written notice of cancellation; each such policy shall be in form, terms
and amount and with insurance carriers satisfactory to Seller; Seller's
acceptance of policies in lesser amounts or risks shall not be a waiver of
Buyer's foregoing obligations. As to Seller's interest in such policy, no act or
omission of Buyer or any of its officers, agents, employees or representatives
shall affect the obligations of the insurer to pay the full amount of any loss.
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Buyer hereby assigns to Seller any monies which may become payable under any
such policy of insurance and irrevocably constitutes and appoints Seller as
Buyer's attorney in fact (a) to hold each original insurance policy, (b) to
make, settle and adjust claims under each policy of insurance, (c) to make
claims for any monies which may become payable under such and other insurance on
the Collateral including returned or unearned premiums, and (d) to endorse
Buyer's name on any check, draft or other instrument received in payment of
claims or turned or unearned premiums under each policy and to apply the funds
to the payment of the indebtedness owing to Seller; provided, however, Seller is
under no obligation to do any of the foregoing. Should Buyer fail to furnish
such insurance policy to Seller, or to maintain such policy in full force, or to
pay any premium in whole or in part relating thereto, then Seller, without
waiving or releasing any default or obligation by Buyer, may (but shall be under
no obligation to) obtain and maintain insurance and pay the premium therefor on
behalf of Buyer and charge the premium to Buyer's indebtedness under this
Security Agreement. The full amount of any such premium paid by Seller shall be
payable by Buyer upon demand, and failure to pay same shall constitute an event
of default under this Security Agreement.
11. A very important element of this Security Agreement is that Buyer make all
its payments promptly as agreed upon. Also essential is that the Collateral
continue to be in good condition and adequate security for the indebtedness. The
following are events of default under this Security Agreement which will allow
Seller to take such action under this Paragraph and under Paragraph 12 as it
deems necessary: (a) any of Buyer's obligations to Seller under any agreement
with Seller is not paid promptly when due; (b) Buyer breaches any warranty or
provision hereof, or of any other instrument or agreement delivered by Buyer to
Seller in connection with this or any other transaction; (c) Buyer dies, becomes
insolvent or ceases to do business as a going concern; (d) it is determined that
Buyer has given Seller materially misleading information regarding its financial
condition; (e) any of the Collateral is lost or destroyed; (f) a petition or
complaint in bankruptcy or for arrangement or reorganization or for relief under
any insolvency laws is filed by or against Buyer or Buyer admits its inability
to pay its debts as they mature; (g) property of Buyer is attached or a receiver
is appointed for Buyer; (h) whenever Seller in good faith believes the prospect
of payment or performance is impaired or in good faith believes the Collateral
is insecure; or (i) any guarantor, surety or endorser for Buyer dies or defaults
in any obligation or liability to Seller or any guaranty obtained in connection
with this transaction is terminated or breached.
If Buyer shall be in default hereunder, the indebtedness herein described and
all other debts then owning by Buyer to Seller under this or any other present
or future agreement shall, if Seller shall so elect, become immediately due and
payable. This acceleration of all indebtedness, if elected by Seller, shall be
subject to all applicable laws, including laws as to rebates and refunds of
unearned charges.
12. So long as any obligations are owed by Buyer to Seller hereunder, Seller
shall have all the rights and remedies provided by this Security Agreement and
provided a secured party under the Uniform Commercial Code and any other
applicable law.
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After default by Buyer, Seller's rights and remedies include but are not limited
to a number of choices. Buyer acknowledges that if it defaults Seller is justly
entitled to do whatever the law allows to avoid loss to itself and also to
obtain for itself the benefit of the bargain under this Security Agreement.
Consequently, Buyer agrees that Seller, among its other rights and remedies, may
by itself or its agent enter the premises or upon the land where the Collateral
is located and without removing the Collateral render any equipment which is
part of the Collateral unusable and/or take possession of the Collateral without
notice to anyone and without judicial process of any kind, provided such
self-help is done without breach of the peace (meaning actual or threatened
violence to a person at the time of repossession). In order to afford itself
these and related remedies, Seller must be able to enter the premises or land in
or upon which the Collateral is located. BUYER, THEREFORE, AGREES THAT SELLER BY
ITSELF OR ITS AGENT, MAY WITHOUT NOTICE TO ANY PERSON AND WITHOUT JUDICIAL
PROCESS OF ANY KIND, ENTER INTO ANY PREMISES OR UPON ANY LAND (INCLUDING ACCESS
ROADS AND RIGHTS OF WAY) OWNED, LEASED OR OTHERWISE UNDER THE REAL OR APPARENT
CONTROL OF BUYER OR ANY AGENT OF BUYER WHERE THE COLLATERAL MAY BE OR WHERE
SELLER BELIEVES THE COLLATERAL MAY BE, AND USING ANY REASONABLE FORCE WITH
RESPECT TO THE COLLATERAL AND ANY PROPERTY CONNECTED TO THE COLLATERAL,
DISASSEMBLE, RENDER UNUSABLE, DISCONNECT AND SEPARATE ALL COLLATERAL FROM ANY
OTHER PROPERTY AND/OR REPOSSESS AND REMOVE ALL OR ANY ITEM OF THE COLLATERAL.
Buyer will not hinder or delay Seller or its agent in any way and will, if
requested, assist Seller or its agent in disassembling and/or removing the
Collateral. Seller may require Buyer to assemble the Collateral and return it to
Seller at a place to be designated by Seller which is reasonably convenient to
both parties. Buyer expressly waives all further rights to possession of the
Collateral after default and all claims for damages related to such removal,
disassembling, entering and/or repossession. The security interest granted
hereby shall continue effective irrespective of any retaking and redelivery of
the Collateral to Buyer until all amounts secured hereby are fully paid in
money. Unless otherwise provided by law, the requirement of reasonable notice of
sale or other intended disposition of Collateral shall be met if such notice is
mailed, postage prepaid, to the address of Buyer shown herein at least ten days
before the time of the sale or disposition. Expenses of retaking, holding,
preparing for sale, selling and the like shall include reasonable attorneys'
fees (at least 15% of the unpaid balance if not prohibited by law) and other
legal expenses. Buyer understands that Seller's rights are cumulative and not
alternative and that Buyer will remain fully liable for any deficiency remaining
after disposition of the Collateral.
13. Seller may in its sole discretion waive a default, or cure a default at
Buyer's expense. Any such waiver in a particular instance or of a particular
default shall not be a waiver of other defaults or the same kind of default at
another time. No modification or change in this Security Agreement shall bind
Seller (after assignment, "Seller," as stated above, means "CIT") unless in
writing signed by Seller. No oral agreement shall be binding.
14. If permitted by law, Buyer authorizes Seller to file a financing statement
with respect to the Collateral signed only by Seller, and to file a carbon,
photograph or other reproduction of this Security Agreement or of a financing
statement. Buyer waives all exemptions. Seller may correct patent errors herein
and fill in such blanks as serial numbers, date of first payment and the like.
Any provisions hereof contrary to, prohibited by, or invalid under applicable
laws or regulations shall be inapplicable and deemed omitted herefrom, but shall
not invalidate the remaining provisions hereof.
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BUYER ACKNOWLEDGES RECEIPT OF A TRUE COPY AND WAIVES ACCEPTANCE. Except where
the context otherwise requires, "Buyer" and "Seller" also mean "debtor" and
"secured party" respectively and include the heirs, executors, or
administrators, successors or assigns to those parties but nothing herein shall
authorize Buyer to assign this Security Agreement or its rights in and to the
Collateral. Except as otherwise provided herein or by applicable law, the Buyer
shall have no right to a trial by jury in any action or proceeding with respect
to, in connection with, or arising out of this Security Agreement, or any
document delivered pursuant to this Security Agreement. If more than one Buyer
executes this Security Agreement, their obligations under this Security
Agreement shall be joint and several.
15. YEAR 2000. The Buyer shall take all action necessary to assure that its
computer-based systems are able to effectively process data including dates and
date sensitive functions. The Buyer represents and warrants that the Year 2000
problem (that is, the inability of certain computer applications to recognize
and correctly perform properly date-sensitive functions involving certain dates
prior to and after December 31, 1999) will not result in a material adverse
effect on the Buyer's business condition or ability to perform hereunder. Upon
request, the Buyer shall provide assurance acceptable to the Seller that the
Buyer's computer systems and software are or will be Year 2000 compliant on a
timely basis. The Buyer shall immediately advise Seller in writing of any
material changes in the Buyer's Year 2000 plan, timetable or budget.
NO ORAL AGREEMENT, GUARANTY, PROMISE, REPRESENTATION OR WARRANTY SHALL BE
BINDING.
BUYER ACKNOWLEDGES RECEIPT OF A TRUE COPY OF THIS CONTRACT WHICH WAS COMPLETELY
FILED IN PRIOR TO BUYER'S EXECUTION HEREOF.
DATED: 8/16/99
BUYER (DEBTOR):
Midwest Cable Communications of Arkansas, Inc.
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Name of individual, corporation or partnership
By: /s/ Xxxxxx Xxxxxxx Title Pres.
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If corporation, have signed by President, Vice President or Treasurer,
and give official title. If owner or partner, state which.
By _____________________________ Title __________________________
0000 Xxxxxxx Xx.
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Xxxxxxxxxxxx XX 00000
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City State Zip Code
SELLER (SECURED PARTY):
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Vermeer Sales & Service, Inc.
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Name of individual, corporation or partnership
By: _____________________________________ Title _____________________________
If corporation, give official title. If owner or partner, state which.
By /s/ Xxxxxxx X. Xxxxx Title Sec. Treas.
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621 S. Knoxville
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Xxxxxxxxxxxx XX 00000
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City State Zip Code
________________________________________________________________________________
If Debtor's actual chief place of business is in a state other than state where
Collateral is located (as set forth above), specify actual chief place of
business:
________________________________________________________________________________
Address City County State Zip Code
If Debtor is a partnership, enter:______________________________________________
Partners' name Home addresses
______________________________________________________________________________2
NOTICE: DO NOT USE THIS FORM FOR TRANSACTIONS FOR PERSONAL, FAMILY OR HOUSEHOLD
PURPOSES. FOR AGRICULTURAL AND OTHER TRANSACTIONS SUBJECT TO FEDERAL OR
STATE REGULATIONS, CONSULT LEGAL COUNSEL TO DETERMINE DOCUMENTATION
REQUIREMENTS.
AGRICULTURAL PURPOSES generally means farming, including dairy farming, but it
also includes the transportation, harvesting, and processing of farm, dairy, or
forest products if what is transported, harvested, or processed is farm, dairy,
or forest products grown or bred by the user of the equipment itself. It does
not apply, for instance, to a logger who harvests someone else's forest, or a
contractor who prepares land or harvests products on someone else's farm.
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FOR USE IN COMMERCIAL OR BUSINESS TRANSACITONS IN THE FOLLOWING STATES:
AK CO GA KS MA NE ND SC VA(1)
AL CT(2) IA KY MI(1) NJ OH SD WA
AR DC(1) IL ME MS(3) NY PA(1) UT WI(1)
CA FL(1) ID LA MN NM(5) OK TN WV(5)
AZ(1) DE(1) IN MD MO(4) NC RI VT(1) WY
(1) DO NOT USE FOR MOTOR VEHICLE TRANSACTIONS.
(2) DO NOT USE IF CASH PRICE IS $8,000 OR LESS.
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(3) DO NOT USE FOR MOTOR VEHICLE OR COMMERCIAL VEHICLE TRANSACTIONS.
(4) USE FOR MOTOR VEHICLE IF CASH PRICE EXCEEDS $7,500 AND FOR ALL NON-MOTOR
VEHICLES.
(5) DO NOT USE FOR MOTOR VEHICLE OR SPECIAL MOBILE EQUIPMENT TRANSACTIONS.
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