10.19a
NATIONSBANK. N.A. (SOUTH)
SECURITY AGREEMENT
(Floor Plan)
Date April 11, 1997
Between: and
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BANK: (SECURED PARTY) DEBTOR: (BORROWER)
NATIONSBANK, N.A. (SOUTH) Kia of Chattanooga, LLC
000 Xxxxxxxxx Xxxxxx 17th Floor 0000 Xxxxxxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000 Xxxxxxxxxxx, Xxxxxxxxx 00000
Xxxxxx County Xxxxxxxx County
(address including county) Name and address, including county)
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Debtor is: [ ] Individual [ ] Corporation [ ] Partnership [X] Other Limited
Liability
Corporation
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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 11 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 (now existing or hereafter acquired)
[ ] Used Motor Vehicles (now existing or hereafter acquired)
including all parts and accessories added to vehicles, 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 present and 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 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, Floor Plan Note and this Floor Plan Security
Agreement. See attached schedule for additional Collateral, if applicable.
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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 demand or 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 April 11, 1997, 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 perfect, continue and 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.
Debtor shall bear the risk of loss and damage to Collateral at all times.
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
except in the ordinary course of business or be subjected to any other security
interest 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.
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.
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10. The office where Debtor keeps its records is 0000 Xxxxxxxxxxxxx Xxxxx,
Xxxxxxxxxxx, XX 00000 (Xxxxxxxx County).
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 to 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 any officer of 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 April 11, 1997, 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 occurrence of any events of default referred to in a Floor Plan
Agreement between Debtor and Secured Party dated April ____, 1997 all of which
are hereby incorporated by reference for all purposes as if copied word for word
herein.
2. Debtor defaults in the due observance or performance of any terms or
provisions of this Security Agreement or other Loan Documents.
3. 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.
SECTION VII. 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 it 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.
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(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 as enacted in the
State of Georgia, O.C.G.A. ss. 11-9 and all other applicable laws,
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 amounts
outstanding under the Floor Plan Agreement, the Note and this 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. Secured Party may remedy any default and may waive any
default 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.
(4) Debtor hereby waives all rights which Debtor has or may have under
and by virtue of O.C.G.A. ss. 44-14, including, without limitation, the
right of Debtor to notice and to a judicial hearing prior to seizure of any
Collateral by Secured Party.
SECTION VIII. ADDITIONAL AGREEMENTS.
1. The terms and conditions contained in a Floor Plan Agreement between
Debtor and Secured Party dated April 11, 1997, 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, without limitations, 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 AND/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, (OR IF NOT
APPLICABLE, THE APPLICABLE STATE LAW), AND JUDGMENT UPON THE AWARD RENDERED BY
THE ARBITRATOR MAY BE ENTERED BY ANY
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COURT HAVING JURISDICTION THEREOF. THE PARTIES RECOGNIZE THAT BANK COULD BE
PREJUDICED BY NOT BEING ABLE TO FORECLOSE ON PROPERTY PLEDGED AS COLLATERAL TO
BANK. THE PARTIES AGREE THAT NOTHING IN THIS AGREEMENT SHALL BE DEEMED TO (I)
LIMIT THE APPLICABILITY OF ANY OTHERWISE APPLICABLE STATUTES OF LIMITATION OR
REPOSE AND ANY WAIVERS CONTAINED IN THIS AGREEMENT; OR (II) BE A WAIVER BY THE
BANK OF THE PROTECTION AFFORDED TO IT BY 12 U.S.C. SEC. 91 OR ANY SUBSTANTIALLY
EQUIVALENT STATE LAW; OR (III) LIMIT THE RIGHT OF THE BANK HERETO (A) TO
EXERCISE SELF HELP REMEDIES SUCH AS (BUT NOT LIMITED TO) SETOFF, OR (B) TO
FORECLOSE AGAINST ANY REAL OR PERSONAL PROPERTY COLLATERAL, OR (C) TO OBTAIN
FROM A COURT PROVISI0NAL OR ANCILLARY REMEDIES SUCH AS (BUT NOT LIMITED TO)
INJUNCTIVE RELIEF OR THE APPOINTMENT OF A RECEIVER. THE BANK MAY EXERCISE SUCH
SELF HELP RIGHTS, FORECLOSURE UPON SUCH PROPERTY, OR OBTAIN SUCH PROVISIONAL OR
ANCILLARY REMEDIES BEFORE, DURING OR AFTER THE PENDENCY OF ANY ARBITRATION
PROCEEDING BROUGHT PURSUANT TO THIS AGREEMENT. AT BANK'S OPTION, FORECLOSURE
UNDER A DEED OF TRUST OR MORTGAGE MAY BE ACCOMPLISHED BY ANY OF THE FOLLOWING:
THE EXERCISE OF A POWER OF SALE UNDER THE DEED OF TRUST OR MORTGAGE, OR BY
JUDICIAL SALE UNDER THE DEED OF TRUST OR MORTGAGE, OR BY JUDICIAL FORECLOSURE.
NEITHER THIS EXERCISE OF SELF HELP REMEDIES NOR THE INSTITUTION OR MAINTENENCE
OF AN ACTION FOR FORECLOSURE OR PROVISIONAL OR ANCILLARY REMEDIES SHALL
CONSTITUTE A WAIVER OF THE RIGHT OF ANY PARTY, INCLUDING THE CLAIMANT IN ANY
SUCH ACTION, TO ARBITRATE THE MERITS OF THE CONTROVERSY OR CLAIM OCCASIONING
RESORT TO SUCH REMEDIES.
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 under seal this 11th day of April, 1997.
NationsBank, N.A. (South) Kia of Chattanooga, LLC (Seal)
Secured Party Debtor
By: By /s/ Xxxxxx X. Xxxxxx, XX
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Xxxxxxx X. Xxxxxx Xxxxxx X. Xxxxxx, XX
Assistant Vice President Chief Manager
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