10.25a
NATIONSBANK. N.A. (SOUTH)
SECURITY AGREEMENT
(Floor Plan)
Date September 1, 1996
Between: and
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BANK: (SECURED PARTY) DEBTOR: (BORROWER)
NATIONSBANK, N.A. (SOUTH) Xxxx & Xxxx, Inc.
000 Xxxxxxxxx Xxxxxx 17th Floor 0000 Xxxxxxxxx Xxxxxxxxxx Xxxx.
Xxxxxxx, Xxxxxxx 00000 Xxxxxxxx, Xxxxxxx 00000
Xxxxxx County Dekalb County
(address including county) Name and address, including county)
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Debtor is: [ ] Individual [X] Corporation [ ] Partnership [ ] Other _________
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Address is Debtor's: [ ] Residence [X] Place of Business [ ] Chief Executive
Office if more than one place of business
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[This Agreement contains some provisions preceded by boxes. Xxxx only those
boxes beside provisions which will be applicable to this transaction. A box
which is not marked means that the provision beside it is not applicable to this
transaction.]
SECTION I. CREATION OF SECURITY INTEREST.
For good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged and subject to the applicable terms of a Floor Plan
Agreement, Floor Plan Promissory Note and this Floor Plan Security Agreement,
Debtor hereby grants to Secured Party (Bank) a security interest in the
Collateral described in Section II of this Security Agreement to secure
performance and payment of all obligations and indebtedness of Debtor to Bank of
whatever kind and whenever or however created or incurred. Said obligations and
indebtedness includes but is not limited to any and all liabilities, fixed or
contingent, whether arising by notes, discounts, overdraws, or in any other
manner whatsoever.
SECTION II. COLLATERALS
The Collateral of this Security Agreement is inventory of the following
description:
[X] New Motor Vehicles
[X] Used Motor Vehicles
including all parts and accessories, now existing or hereafter acquired by
Debtor (Borrower), including any such goods as may be leased or held for
leasing, together with any and all accounts and Proceeds arising from the sale,
lease or disposition of said property and all returned, refused and repossessed
goods, all monies received from manufacturers by way of credits, refunds or
otherwise with respect to Collateral, and all Proceeds thereof (Collateral) to
secure all debt of Debtor (Borrower) to Secured Party (Bank) under any and all
future Advances of whatever kind and further including but not limited to the
Line and all other debt of Debtor (Borrower) to Secured Party (Bank) of any
nature now existing or hereafter arising, including but not limited to
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debt arising directly between Debtor (Borrower) and Bank or acquired outright,
conditionally or as Collateral security from another by Secured Party, absolute
or contingent, joint or several, secured or unsecured, due or not due,
contractual or tortious, liquidated or unliquidated, arising under the operation
of law or otherwise, direct or indirect, whether incurred directly or as part of
a partnership, association or other group, or whether incurred as principal,
surety, indorser, accommodation party or otherwise. Debtor (Borrower) will
execute and deliver any documents, instruments or agreements required by Secured
Party (Bank) to evidence debt hereunder, grant, perfect and preserve the
security interest, and otherwise carry out the terms of the Floor Plan Agreement
and Floor Plan Security Agreement. See attached schedule for additional
Collateral, if applicable.
The inclusion of Proceeds in this Security Agreement does not authorize
Debtor to sell, dispose of or otherwise use the Collateral in any manner not
specifically authorized by the Floor Plan Agreement or this Security Agreement.
The term "Proceeds" means proceeds as said term is defined in the Uniform
Commercial Code and includes without limitation cash, accounts, general
intangibles, documents, inventory (including trade-ins), instruments, chattel
paper, equipment, and all other property of every kind received upon the sale,
exchange, collection, lease or other disposition of inventory.
SECTION III. PAYMENT OBLIGATIONS OF DEBTOR.
1. Debtor shall pay to Secured Party on demand all expenses and
expenditures, including attorney fees, plus interest thereon at the highest
legal rate per annum, pursuant to the provisions of the Floor Plan Agreement,
Floor Plan Note and this Security Agreement.
2. Debtor shall pay to Secured Party the earned outstanding indebtedness of
Debtor to Secured Party upon Debtor's default pursuant to the terms and
conditions contained in a Floor Plan Note, Floor Plan Agreement or this Security
Agreement.
SECTION IV. DEBTOR'S REPRESENTATIONS AND WARRANTIES.
1. The representations and warranties contained in a Floor Plan Agreement
between Debtor and Secured Party dated September 1, 1996, are hereby
incorporated by reference for all purposes as if copied herein word for word.
2. Debtor will execute alone or with Secured Party any Financing Statement
or other document or procure any document, and pay all connected costs,
necessary to protect the security interest under this Security Agreement against
the rights or interest of third persons.
3. Debtor will at all times keep Collateral and its Proceeds separate and
distinct from other property of Debtor and shall keep accurate and complete
records of the Collateral and its Proceeds.
4. Debtor shall pay prior to delinquency all taxes, charges, liens and
assessments against the Collateral, and upon Debtor's failure to do so, Secured
Party at its option may pay any of them and shall be the sole judge of the
legality or validity thereof and the amount necessary to discharge the same.
Such payment shall become part of the indebtedness secured by this Agreement and
shall be paid to Secured Party by Debtor immediately and without demand, with
interest thereon at the highest legal rate per annum.
5. The Collateral shall remain in Debtor's possession or control at all
times at Debtor's risk of loss; and be kept at the address shown at the
beginning of this Agreement, or at _____________________________________________
________________________________________________________________________________
(No. and Street) (City) (County) (State)
where Secured Party may inspect it at any time. Except for its temporary removal
in connection with its ordinary use, Debtor shall not remove the Collateral from
the above address without obtaining prior written consent from Secured Party.
6. The Collateral will not be misused or abused, wasted or allowed to
deteriorate, except for the ordinary wear and tear of its intended primary use,
and will not be used in violation of any statute or ordinance.
7. The Collateral will not be sold, transferred or disposed of by Debtor or
be subjected to any unpaid charge, including rent and taxes, or to any
subsequent interest of a third person created or suffered by Debtor voluntarily
or involuntarily unless Secured Party consents in advance in writing to such
sale, transfer, disposition, charge, or subsequent interest, or unless otherwise
provided in this Agreement.
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8. Debtor will promptly notify Secured Party in writing of any addition to,
change in or discontinuance of: (i) its address as shown at the beginning of
this Security Agreement; (ii) the location of its place of business if it has
one location or its chief executive office if it has more than one place of
business as set forth in this Security Agreement; and (iii) the location of the
office where it keeps its records as set forth in this Security Agreement.
9. If any Collateral is leased or held for lease to customers of Debtor and
is of a type normally used in more than one State (such as automotive equipment,
rolling stock, airplanes, road building equipment, commercial harvesting
equipment, construction machinery and the like), Debtor's place of business if
it has one location or its chief executive office if it has more than one place
of business is the address shown at the beginning of this Agreement.
10. The office where Debtor keeps its records is
0000 Xxxxxxxxx Xxxxxxxxxx Xxxx.
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(No. and Street)
Xxxxxxxx Dekalb Georgia
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(City) (County) (State)
11. Debtor shall account fully and faithfully to Secured Party for Proceeds
from disposition of the Collateral in any manner and shall pay or turn over
pursuant to paragraph 5(a) of the Floor Plan Agreement in cash, negotiable
instruments, drafts, assigned accounts or chattel paper, all Proceeds from each
sale lo be applied to Debtor's indebtedness to Secured Party, subject, if other
than cash, to final payment or collection.
12. If any Collateral or Proceeds includes obligations of third parties to
Debtor, the transactions giving rise to the Collateral shall conform in all
respects to the applicable State or Federal law including but not limited to
consumer credit law. Debtor shall hold harmless and indemnify Bank against any
cost, loss or expense arising from Debtor's breach of this covenant.
13. Without the written consent of Bank, Debtor shall not change its name,
change its corporate status, use any trade name or engage in any business in
which it was not engaged on the date of this Agreement.
14. Debtor appoints Bank as Debtor's attorney-in-fact with full power in
Debtor's name and behalf to do every act which Debtor is obligated to do or may
be required to do hereunder, however, nothing in this paragraph shall be
construed to obligate Bank to take any action hereunder nor shall Bank be liable
to Debtor for failure to take any action hereunder. This appointment shall be
deemed a power coupled with an interest and shall not be terminable as long as
the obligations are outstanding and shall not terminate on the disability or
incompetence of the Debtor.
15. Debtor will comply with all State and Federal laws and regulations
applicable to its business, whether now in effect or hereafter enacted including
but not limited to the wage and hours laws and relating to the use or disposal
of hazardous materials and wastes.
SECTION V. COVENANTS.
The Covenants contained in a Floor Plan Agreement between Debtor and
Secured Party dated September 1, 1996, are hereby incorporated by reference for
all purposes as if copied word for word herein.
SECTION VI. Events of Default.
Debtor shall be in default under this Security Agreement upon the happening
of any of the following events or conditions (hereinafter called an "Event of
Default"):
1. The Events of Default contained in a Floor Plan Agreement between Debtor
and Secured Party dated September 1, 1996, are hereby incorporated by reference
for all purposes as if copied word for word herein.
2. If any Physical Damage, property and/or other insurance, insuring said
Collateral and the respective interests of the parties therein, is cancelled for
any reason and the Debtor fails or refuses to furnish written proof to Secured
Party of his having obtained substitute insurance coverage replacing the
cancelled policies.
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SECTION VI. SECURED PARTY'S RIGHTS AND REMEDIES.
A. Rights Exclusive of Default.
(1) This Security Agreement, Secured Party's rights hereunder or the
indebtedness hereby secured may be assigned from time to time, and in any
such case the Assignee shall be entitled to all of the rights, privileges
and remedies granted in this Security Agreement to Secured Party, and
Debtor will assert no claims or defenses he may have against Secured Party
against the Assignee except those granted in this Security Agreement.
(2) At its option, Secured Party may discharge taxes, liens or
security interests or other encumbrances at any time levied or placed on
the Collateral, may pay for insurance on the Collateral and may pay for the
maintenance and preservation of the Collateral. Debtor agrees to reimburse
Secured Party on demand for any payment made, or any expense incurred by
Secured Party pursuant to the foregoing authorization, plus interest
thereon at the highest legal rate per annum.
(3) Secured Party may execute, sign, endorse, transfer or deliver in
the name of Debtor notes, checks, drafts or other instruments for the
payment of money and receipts, certificates of origin, applications for
certificates of title or any other documents, necessary to evidence,
perfect or realize upon the security interest and obligations created by
this Security Agreement.
(4) Secured Party may notify the account Debtors or Obligors of any
accounts, chattel paper, negotiable instruments or other evidences of
indebtedness remitted by Debtor to Secured Party as Proceeds to pay Secured
Party directly.
(5) Secured Party may at any time demand, xxx for, collect or make any
compromise or settlement with reference to the Collateral as Secured Party,
in its sole discretion, chooses.
(6) Secured Party may enter upon Debtor's premises at any reasonable
time to inspect the Collateral and Debtor's books and records pertaining to
the Collateral; Secured Party may require the Debtor to assemble the
Collateral for such inspection in a reasonably convenient place; and in all
other ways the Debtor shall assist the Secured Party in making such
inspection.
B. Rights in Event of Default.
(1) Upon the occurrence of an Event of Default, or if Secured Party
deems payment of Debtor's obligations to Secured Party to be insecure, and
at any time thereafter, Secured Party may declare all obligations secured
hereby immediately due and payable and shall have the rights and remedies
of a Secured Party under the Uniform Commercial Code of Georgia, including
without limitation thereto, the right to sell, lease or otherwise dispose
of any or all of the Collateral and the right to take possession of the
Collateral, and for that purpose Secured Party may enter upon any premises
on which the Collateral or any part thereof may be situated and remove the
same therefrom. Secured Party may require Debtor to assemble the Collateral
and make it available to Secured Party at a place to be designated by
Secured Party which is reasonably convenient to both parties. Unless
Collateral threatens to decline speedily in value or is a type customarily
sold in a recognized market, Secured Party will give Debtor reasonable
notice of the time and place of any public sale thereof or of the time
after which any private or any other intended disposition thereof is to be
made. The requirements of reasonable notice shall be met as such notice is
mailed, postage prepaid, to the address of Debtor shown at the beginning of
this Security Agreement at least five (5) days before the time of sale or
disposition. After sale, all monies will be applied to Security Agreement,
and Debtor will be liable for any remaining deficiencies. Expenses of
retaking, holding, preparing for sale, selling or the like shall include
Secured Party's reasonable attorneys' fees and legal expenses, plus
interest thereon at the highest legal rate per annum. Debtor shall remain
liable for any deficiency.
(2) Secured Party may remedy any default and may waive any default
without waiving the default remedied or without waiving any other prior or
subsequent default. '
(3) The remedies of Secured Party hereunder are cumulative, and the
exercise of any one or more of the remedies provided for herein shall not
be construed as a waiver of any of the other remedies of Secured Party.
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SECTION VII. ADDITIONAL AGREEMENTS.
1. The terms and conditions contained in a Floor Plan Agreement between
Debtor and Secured Party dated September 1, 1996, are hereby incorporated by
reference for all purposes as if copied word for word herein.
2. The term "Debtor" (Borrower) as used in this instrument shall be
construed as singular or plural to correspond with the number of persons
executing this instrument as Debtor. The pronouns used in this instrument are in
the masculine gender but shall be construed as feminine or neuter as occasion
may require. "Secured Party" (Bank) and "Debtor" as used in this instrument
include the heirs, executors or administrators, successors, representatives,
receivers, trustees and assigns of those parties.
3. Floor Plan inventory inspections will be conducted by Secured Party from
time to time at the sole discretion of Secured Party. Debtor agrees to pay in
full any item or unit of Collateral that is not located at Debtor's premises or
accounted for by Debtor to Secured Party. Debtor shall make payment to Secured
Party (Bank) immediately upon notice of demand being given to Debtor pursuant to
paragraph 29 (NOTICES) of the Floor Plan Agreement.
4. (Write in any additional agreements or conditions): See attached
Schedule, if appropriate.
5. MEDIATION, BINDING ARBITRATION. THE PARTIES WILL ATTEMPT IN GOOD FAITH
TO RESOLVE ANY CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT
BY PARTICIPATING IN MEDIATION AND/OR BINDING ARBITRATION. EACH PARTY AGREES THAT
EACH WILL BEAR THEIR RESPECTIVE EXPENSES RELATED TO EITHER MEDIATION OR
ARBITRATION. THE PARTIES FURTHER AGREE IF THE MATTER HAS NOT BEEN RESOLVED
PURSUANT TO MEDIATION WITHIN THIRTY (30) DAYS OF NOTICE TO MEDIATE GIVEN BY
EITHER PARTY, THE CONTROVERSY SHALL BE SETTLED BY ARBITRATION AND SHALL BE
GOVERNED BY THE UNITED STATES ARBITRATION ACT, 9 U.S.C. ss.1-16, AND JUDGMENT
UPON THE AWARD RENDERED BY THE ARBITRATOR MAY BE ENTERED BY ANY COURT HAVING
JURISDICTION THEREOF.
6. NOTICE OF FINAL AGREEMENT: THIS WRITTEN SECURITY AGREEMENT REPRESENTS
THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE
OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE
ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
Executed this 9th day of November, 1996
NationsBank, N.A. (South) Xxxx &: Xxxx. Inc.
Secured Party Debtor
By _______________________________ By ________________________________
Xxxxx X. Xxxxxx, Vice President Xxxxxxx X. Xxxx. Jr. President
(Print or Type Name and Title) (Print or Type Name and Title)
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