COMMERCIAL SECURITY AGREEMENT
EXHIBIT
10.58
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Principal
$800,000.00
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Loan
Date
04-20-2009
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Maturity
04-20-2010
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Loan
No.
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Call/Coll
422
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Account
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Officer
086
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Initials
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References
in the boxes above are for Xxxxxx'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:
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AMERICAN
CONSUMERS INC DBA SHOP RITE
00
XXXXXX XXX
XXXXXXXXX,
XX 00000
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Lender:
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GATEWAY
BANK & TRUST
Main
0000
Xxxxxxx Xxx
Xxxxxxxx,
XX 00000
(706)
965-5500
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THIS COMMERCIAL SECURITY
AGREEMENT dated April 20, 2009, is made and
executed between AMERICAN CONSUMERS, INC. DBA
SHOP RITE ("Grantor") and GATEWAY BANK
& TRUST ("Lender").
GRANT OF SECURITY INTEREST.
For valuable consideration, Grantor grants to Lender a security interest in the
Collateral to secure the Indebtedness and agrees that Xxxxxx 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" as used in this Agreement means the following described
property, whether now owned or hereafter acquired, whether now existing or
hereafter arising, and wherever located, in which Grantor is giving to Lender a
security interest for the payment of the Indebtedness and performance of all
other obligations under the Note and this Agreement:
UCC ON
ALL BUSINESS ASSETS, INCLUDED BUT NOT LIMITED TO: ACCOUNTS, A/R, CASH
FLOW, INVENTORY, FURNITURE, FIXTURES, EQUIPMENT, REFRIGERATORS, FREEZERS,
MACHINERY, COMPUTERS, REGISTERS, LEASEHOLD IMPROVEMENTS.
In addition,
the word "Collateral" also includes all the following, whether
now owned or hereafter acquired, whether now
existing or hereafter arising, and wherever located:
(A) All accessions, attachments, accessories, replacements of and additions to any
of the collateral described herein, whether added now
or later.
(B) All products and produce of any
of the property described in this Collateral section.
(C) All accounts, general intangibles, instruments, rents, monies, payments, and all
other rights, arising out of a sale, lease,
consignment or other disposition of any of the property
described in this Collateral section.
(D) All proceeds (including insurance proceeds) from the sale, destruction,
loss, or other disposition of any of the property described in this
Collateral section, and sums due from a third party who has damaged
or destroyed the Collateral or from that party's
insurer, whether due
to judgment, settlement or other process.
(E) All records and data relating to
any of the property described
in this Collateral section, whether in the form of
a writing, photograph, microfilm, microfiche, or electronic media,
together with all of
Grantor's right, title, and interest in and to all
computer software required
to utilize, create, maintain, and process any such records or data
on electronic media.
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:
Perfection of Security
Interest. Xxxxxxx agrees to take whatever actions are requested
by Xxxxxx to perfect and continue Xxxxxx's security interest in the
Collateral. Upon request of Xxxxxx, Grantor will deliver
to Lender any and all of the documents evidencing or constituting
the Collateral, and Grantor will note Xxxxxx's interest upon
any and all chattel paper and instruments if not delivered to Lender
for possession by Xxxxxx. This is a continuing Security
Agreement and will continue in effect even though all or any part of the
Indebtedness is paid in full and even though for a period of time Grantor may
not be indebted to Lender.
Notices to
Lender. Grantor will promptly notify Lender in
writing
at Xxxxxx's address shown above (or such other addresses as
Lender may designate from time to time) prior to any (1) change in
Grantor's name; (2) change in Grantor's assumed business name(s); (3)
change in the
management of the Corporation Grantor; (4) change in
the authorized signer(s); (5) change in Grantor's principal office address;
(6) change in Grantor's
state of organization; (7) conversion of Grantor to a new or
different type of business entity; or (8) change in any other aspect of
Grantor that
directly or indirectly relates to any agreements
between Grantor and
Lender. No change in Grantor's name or state of
organization will take effect
until after Xxxxxx has received notice.
No
Violation. The execution and delivery of this Agreement
will not violate any law or agreement governing Grantor
or to which Grantor is a party, and its certificate or articles
of incorporation and bylaws do
not prohibit any term or condition of this Agreement.
Enforceability of Collateral.
To the extent the Collateral consists of accounts, chattel paper, or general
intangibles, as defined by the Uniform Commercial Code, the Collateral is
enforceable in accordance with its terms, is genuine, and fully complies with
all applicable laws and regulations concerning form, content and manner of
preparation and execution, and all persons appearing to be obligated on the
Collateral have authority and capacity to contract and are in fact obligated as
they appear to be on the Collateral. There shall be no setoffs or counterclaims
against any of the Collateral, and no agreement shall have been made under which
any deductions or discounts may be claimed concerning the Collateral except
those disclosed to Lender in writing.
Location of the
Collateral. Except in the ordinary course of
Xxxxxxx's business, Xxxxxxx agrees to keep the Collateral at Grantor's
address shown above or at such other locations as are acceptable to
Lender. Upon
Lender's request, Grantor will deliver to Lender in form
satisfactory to Lender a schedule of real properties and Collateral
locations relating to
Grantor's operations, including without limitation the following: (1) all
real property Grantor owns or is purchasing; (2) all real
property Grantor is renting or leasing; (3) all storage facilities Grantor
owns, rents,
leases, or uses; and (4) all other properties where Collateral
is or may be located.
Removal of the
Collateral. Except in the ordinary course of
Xxxxxxx's business, Grantor shall not remove the Collateral from its
existing location without Lender's prior written
consent. Grantor shall,
whenever requested, advise Lender of the exact location of the Collateral.
Transactions Involving
Collateral. Except for inventory sold or
accounts collected in the ordinary course of Grantor's
business, or as otherwise provided for in this Agreement, Grantor
shall not sell, offer to sell, or otherwise transfer or dispose of the
Collateral. Grantor shall not pledge, mortgage, encumber or
otherwise permit the Collateral to be subject to
any lien, security interest, encumbrance, or charge, other
than the security interest provided for in this Agreement, without the
prior written consent of Lender. This includes security
interests even if junior in right to
the security interests granted under this
Agreement. Unless waived by Xxxxxx, all proceeds from
any disposition of the Collateral (for whatever
reason) shall be held in trust for Lender and
shall not be commingled with
any other funds; provided however, this requirement shall not
constitute consent by Lender to any sale or other
disposition. Upon receipt,
Grantor shall immediately deliver any such proceeds to Lender.
Title. Grantor represents and
warrants to Lender that Grantor holds good and marketable title to the
Collateral, free and clear of all liens and encumbrances except for the lien of
this Agreement. No financing statement covering any of the Collateral is on file
in any public office other than those which reflect the security interest
created by this Agreement or to which Lender has specifically consented. Grantor
shall defend Xxxxxx's rights in the Collateral against the claims and demands of
all other persons.
Repairs and
Maintenance. Grantor agrees to keep and
maintain, and to cause others to keep and maintain, the Collateral in good
order, repair
and condition at all times while this Agreement
remains in
effect. Xxxxxxx further agrees to pay when due all claims for work done <PAGE>
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(Continued)
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on, or
services rendered or material furnished in connection with the Collateral so
that no lien or encumbrance may ever attach to or be filed against the
Collateral.
Inspection of
Collateral. Lender and Xxxxxx's designated representatives and
agents shall have the right at all reasonable times to examine and inspect the
Collateral wherever located.
Taxes, Assessments and
Liens. Grantor will pay when due all taxes, assessments and
liens upon the Collateral, its use or operation, upon this Agreement, upon any
promissory note or notes evidencing the Indebtedness, or upon any of the other
Related Documents. Grantor may withhold any such payment or may elect
to contest any lien if Grantor is in good faith conducting an appropriate
proceeding to contest the obligation to pay and so long as Xxxxxx's interest in
the Collateral is not jeopardized in Xxxxxx's sole opinion. If the
Collateral is subjected to a lien which is not discharged within fifteen (15)
days, Grantor shall deposit with Lender cash, a sufficient corporate surety bond
or other security satisfactory to Lender in an amount adequate to provide for
the discharge of the lien plus any interest, costs, attorneys' fees or other
charges that could accrue as a result of foreclosure or sale of the
Collateral. In any contest Grantor shall defend itself and Xxxxxx and
shall satisfy any final adverse judgment before enforcement against the
Collateral. Grantor shall name Xxxxxx as an additional obligee under
any surety bond furnished in the contest proceedings. Xxxxxxx further
agrees to furnish Lender with evidence that such taxes, assessments, and
governmental and other charges have been paid in full and in a timely
manner. Grantor may withhold any such payment or may elect to contest
any lien if Grantor is in good faith conducting an appropriate proceeding to
contest the obligation to pay and so long as Xxxxxx's interest in the Collateral
is not jeopardized.
Compliance with Governmental
Requirements. Grantor shall comply promptly with all laws,
ordinances, rules and regulations of all governmental authorities, now or
hereafter in effect, applicable to the ownership, production, disposition, or
use of the Collateral, including all laws or regulations relating to the undue
erosion of highly-erodible land or relating to the conversion of wetlands for
the production of an agricultural product or commodity. Grantor may
contest in good faith any such law, ordinance or regulation and withhold
compliance during any proceeding, including appropriate appeals, so long as
Xxxxxx's interest in the Collateral, in Xxxxxx's opinion, is not
jeopardized.
Hazardous
Substances. Grantor represents and warrants that the
Collateral never has been, and never will be so long as this Agreement remains a
lien on the Collateral, used in violation of any Environmental Laws or for the
generation, manufacture, storage, transportation, treatment, disposal, release
or threatened release of any Hazardous Substance. The representations
and warranties contained herein are based on Grantor's due diligence in
investigating the Collateral for Hazardous Substances. Grantor hereby
(1) releases and waives any future claims against Lender for indemnity or
contribution in the event Grantor becomes liable for cleanup or other costs
under any Environmental Laws, and (2) agrees to indemnify, defend, and hold
harmless Lender against any and all claims and losses resulting from a breach of
this provision of this Agreement. This obligation to indemnify and
defend shall survive the payment of the Indebtedness and the satisfaction of
this Agreement.
Maintenance of Casualty
Insurance. Grantor shall procure and maintain all risks
insurance, including without limitation fire, theft and liability coverage
together with such other insurance as Lender may require with respect to the
Collateral, in form, amounts, coverages and basis reasonably acceptable to
Lender and issued by a company or companies reasonably acceptable to
Lender. Grantor, upon request of Xxxxxx, will deliver to Lender from
time to time the policies or certificates of insurance in form satisfactory to
Lender, including stipulations that coverages will not be cancelled or
diminished without at least thirty (30) days' prior written notice to Xxxxxx and
not including any disclaimer of the insurer's liability for failure to give such
a notice. Each insurance policy also shall include an endorsement
providing that coverage in favor of Lender will not be impaired in any way by
any act, omission or default of Grantor or any other person. In
connection with all policies covering assets in which Lender holds or is offered
a security interest, Grantor will provide Lender with such loss payable or other
endorsements as Lender may require. If Grantor at any time fails to
obtain or maintain any insurance as required under this Agreement, Lender may
(but shall not be obligated to) obtain such insurance as Lender deems
appropriate, including if Lender so chooses "single interest insurance," which
will cover only Xxxxxx's interest in the Collateral.
Application of Insurance
Proceeds. Grantor shall promptly notify Lender of any loss or
damage to the Collateral, whether or not such casualty or loss is covered by
insurance. Lender may make proof of loss if Grantor fails to do so
within fifteen (15) days of the casualty. All proceeds of any
insurance on the Collateral, including accrued proceeds thereon, shall be held
by Lender as part of the Collateral. If Lender consents to repair or
replacement of the damaged or destroyed Collateral, Lender shall, upon
satisfactory proof of expenditure, pay or reimburse Grantor from the proceeds
for the reasonable cost of repair or restoration. If Lender does not
consent to repair or replacement of the Collateral, Lender shall retain a
sufficient amount of the proceeds to pay all of the Indebtedness, and shall pay
the balance to Grantor. Any proceeds which have not
been
disbursed within six (6) months after their receipt and which Grantor has not
committed to the repair or restoration of the Collateral shall be used to prepay
the Indebtedness.
Insurance
Reserves. Lender may require Grantor to maintain with Lender
reserves for payment of insurance premiums, which reserves shall be created by
monthly payments from Grantor of a sum estimated by Lender to be sufficient to
produce, at least fifteen (15) days before the premium due date, amounts at
least equal to the insurance premiums to be paid. If fifteen (15)
days before payment is due, the reserve funds are insufficient, Grantor shall
upon demand pay any deficiency to Lender. The reserve funds shall be
held by Lender as a general deposit and shall constitute a non-interest-bearing
account which Lender may satisfy by payment of the insurance premiums required
to be paid by Grantor as they become due. Lender does not hold the
reserve funds in trust for Grantor, and Xxxxxx is not the agent of Grantor for
payment of the insurance premiums required to be paid by Grantor. The
responsibility for the payment of premiums shall remain Grantor's sole
responsibility.
Insurance
Reports. Grantor, upon request of Xxxxxx, shall furnish to
Lender reports on each existing policy of insurance showing such information as
Lender may reasonably request including the following: (1) the name of the
insurer; (2) the risks insured; (3) the amount of the policy; (4) the property
insured; (5) the then current value on the basis of which insurance has been
obtained and the manner of determining that value; and (6) the expiration date
of the policy. In addition, Grantor shall upon request by Lender
(however not more often than annually) have an independent appraiser
satisfactory to Lender determine, as applicable, the cash value or replacement
cost of the Collateral.
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, and 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.
XXXXXXX'S RIGHT TO POSSESSION.
Until default, Grantor may have possession of the tangible personal property and
beneficial use of all the Collateral and may use it in any lawful manner not
inconsistent with this Agreement or the Related Documents, provided that
Grantor's right to possession and beneficial use shall not apply to any
Collateral where possession of the Collateral by Lender is required by law to
perfect Lender's security interest in such Collateral. If Lender at any time has
possession of any Collateral, whether before or after an Event of Default,
Lender shall be deemed to have exercised reasonable care in the custody and
preservation of the Collateral if Lender takes such action for that purpose as
Grantor shall request or as Lender, in Xxxxxx's sole discretion, shall deem
appropriate under the circumstances, but failure to honor any request by Grantor
shall not of itself be deemed to be a failure to exercise reasonable care.
Lender shall not be required to take any steps necessary to preserve any rights
in the Collateral against prior parties, nor to protect, preserve or maintain
any security interest given to secure the Indebtedness.
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.
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 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.
<PAGE>
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Default in Favor of Third
Parties. Any guarantor or Grantor defaults 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 any
guarantor’s or Grantor's property or ability to 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. If an Event of Default occurs under this Agreement, at any time
thereafter, Lender shall have all the rights of a secured party under the
Georgia Uniform Commercial Code. In addition and without limitation, Lender may
exercise any one or more of the following rights and remedies:
Accelerate Indebtedness.
Xxxxxx may declare the entire Indebtedness, including any prepayment penalty
which Grantor would be required to pay, immediately due and payable, without
notice of any kind to Grantor.
Assemble
Collateral. Lender may require Grantor to deliver to Lender all
or any portion of the Collateral and any and all
certificates of title and other documents relating to the
Collateral. Lender may require Grantor
to assemble the Collateral and make it available to Lender
at a place to be designated by Lender. Xxxxxx also
shall have full power to enter upon the property of Grantor to take
possession of and remove the Collateral. If
the Collateral contains other goods not covered by this Agreement
at the time of repossession, Grantor agrees Lender may take such other
goods,
provided that Xxxxxx makes reasonable efforts to return them
to Grantor after repossession.
Sell the
Collateral. Lender shall have full power to sell, lease,
transfer, or otherwise deal with the Collateral or proceeds
thereof in Xxxxxx's own name or that of
Grantor. Lender may sell the Collateral at public
auction or private sale. Unless the Collateral
threatens to decline speedily in value or is of a type customarily
sold on a recognized market, Lender
will give Grantor, and other persons as required by law,
reasonable notice of the time and place of any public sale, or the
time after which any private sale or any other disposition of the
Collateral is to be made. However, no notice need be
provided to any person who, after Event of Default
occurs, enters into and authenticates an agreement waiving that
person's right to notification of sale. The requirements of
reasonable notice shall be met if such notice is given at least ten
(10) days before the time of the sale
or disposition. All expenses relating to the
disposition of the Collateral, including without limitation
the
expenses
of retaking, holding, insuring, preparing for sale and selling
the Collateral, shall become a part of the Indebtedness secured by this
Agreement and shall be payable on demand,
with interest at the Note rate from date of expenditure until repaid.
Appoint Receiver. Lender shall
have the right to have a receiver appointed to take possession of all or any
part of the Collateral, with the power to protect and preserve the Collateral,
to operate the Collateral preceding foreclosure or sale, and to collect the
Rents from the Collateral and apply the proceeds, over and above the cost of the
receivership, against the Indebtedness. The receiver may serve without bond if
permitted by law. Xxxxxx's right to the appointment of a receiver shall exist
whether or not the apparent value of the Collateral exceeds the Indebtedness by
a substantial amount. Employment by Xxxxxx shall not disqualify a person from
serving as a receiver.
Collect Revenues, Apply
Accounts. Lender, either itself or through a receiver, may collect the
payments, rents, income, and revenues from the Collateral. Lender may at any
time in Xxxxxx's discretion transfer any Collateral into Xxxxxx's own name or
that of Xxxxxx's nominee and receive the payments, rents, income, and revenues
therefrom and hold the same as security for the Indebtedness or apply it to
payment of the Indebtedness in such order of preference as Lender may determine.
Insofar as the Collateral consists of accounts, general intangibles, insurance
policies, instruments, chattel paper, choses in action, or similar property,
Lender may demand, collect, receipt for, settle, compromise, adjust, sue for,
foreclose, or realize on the Collateral as Lender may determine, whether or not
Indebtedness or Collateral is then due. For these purposes, Xxxxxx may, on
behalf of and in the name of Grantor, receive, open and dispose of mail
addressed to Grantor; change any address to which mail and payments are to be
sent; and endorse notes, checks, drafts, money orders, documents of title,
instruments and items pertaining to payment, shipment, or storage of any
Collateral. To facilitate collection, Xxxxxx may notify account debtors and
obligors on any Collateral to make payments directly to Lender.
Obtain Deficiency. If Xxxxxx
chooses to sell any or all of the Collateral, Lender may obtain a judgment
against Grantor for any deficiency remaining on the Indebtedness due to Lender
after application of all amounts received from the exercise of the rights
provided in this Agreement. Grantor shall be liable for a deficiency even if the
transaction described in this subsection is a sale of accounts or chattel
paper.
Other Rights and
Remedies. Lender shall have all the rights and remedies
of a secured creditor under the provisions of the Uniform Commercial
Code, as may be amended from time to time. In
addition, Lender shall have and may exercise any or all other rights and
remedies it may have available at
law, in equity, or otherwise.
Election of Remedies. Except
as may be prohibited by applicable law, all of Lender's rights and remedies,
whether evidenced by this Agreement, the Related Documents, 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.
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 Xxxxxx 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
<PAGE>
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(Continued)
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any of
Xxxxxx'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 Xxxxxx as Xxxxxxx's irrevocable attorney-in-fact for the purpose
of executing any documents necessary to perfect, amend, or to continue the
security interest granted in this Agreement or to demand termination of filings
of other secured parties. Lender may at any time, and without further
authorization from Grantor, file a carbon, photographic or other reproduction of
any financing statement or of this Agreement for use as a financing statement.
Grantor will reimburse Lender for all expenses for the perfection and the
continuation of the perfection of Xxxxxx's security interest in the
Collateral.
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:
Agreement. The word
"Agreement" means this Commercial Security Agreement, as this Commercial
Security Agreement may be amended or modified from time to time, together with
all exhibits and schedules attached to this Commercial Security Agreement 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".
Environmental Laws. The words
"Environmental Laws" mean any and all state, federal and local statutes,
regulations and ordinances relating to the protection of human health or the
environment, including without limitation the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended, 42 U.S.C. Section
9601, et seq. ("CERCLA"), the Superfund Amendments and Reauthorization Act of
1986, Pub. L. No. 99-499 ("XXXX"), the Hazardous Materials Transportation Act,
49 U.S.C. Section 1801, et seq., the Resource Conservation and Recovery Act, 42
U.S.C. Section 6901, et seq., or other applicable state or federal laws, rules,
or regulations adopted pursuant thereto.
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.
Hazardous Substances. The
words "Hazardous Substances" mean materials that, because of their quantity,
concentration or physical, chemical or infectious characteristics, may cause or
pose a present or potential hazard to human health or the environment when
improperly used, treated, stored, disposed of, generated, manufactured,
transported or otherwise handled. The words "Hazardous Substances" are used in
their very broadest sense and include without limitation any and all hazardous
or toxic substances, materials or waste as defined by or listed under the
Environmental Laws. The term "Hazardous Substances" also includes, without
limitation, petroleum and petroleum by-products or any fraction thereof and
asbestos.
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 April 20, 2009, 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.
GRANTOR
HAS READ AND UNDERSTOOD ALL THE PROVISIONS OF THIS COMMERCIAL SECURITY AGREEMENT
AND AGREES TO ITS TERMS. THIS AGREEMENT IS DATED APRIL 20, 2009.
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:
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AMERICAN
CONSUMERS INC DBA SHOP RITE
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By: /s/ Xxxxxxx X.
Xxxxxxxxxx (Seal)
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By: /s/ Xxxx X.
Xxxx (Seal)
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XXXXXXX X.
XXXXXXXXXX, President of
AMERICAN CONSUMERS INC DBA
SHOP RITE
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XXXX X.
XXXX, Chief Financial Officer of
AMERICAN CONSUMERS INC DBA
SHOP RITE
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