EXHIBIT 10.4
COMPASS BANK COMMERCIAL
0000 XXXXXXX XXXX. XXXXXXXX
XXXXXXXXXX, XX 00000 AGREEMENT
(000) 000-0000 "LENDER"
BORROWER BORROWER
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XXXX XXXXXXXX TRANSPORTATION, XXXX XXXXXXXX TRANSPORTATION,
CO., INC. CO., INC.
ADDRESS ADDRESS
------- -------
0000 XXXXXXX 00 0000 XXXXXXX 00
XXXXXXX, XX 00000-0000 XXXXXXX, XX 00000-0000
TELEPHONE NO. IDENTIFICATION NO. TELEPHONE NO. IDENTIFICATION NO.
------------- ------------------ ------------- ------------------
(000) 000-0000 636006515 (000) 000-0000 636006515
1. SECURITY INTEREST. For good and valuable consideration, Owner grants to
Lender identified above a continuing security interest in the Collateral
described below to secure the Obligations described in this Agreement.
2. OBLIGATIONS. The collateral shall secure the payment and performance of all
of Borrower's and Owner's present and future, joint and/or several, direct and
indirect, absolute and contingent, express and implied indebtedness to Lender
under any promissory note or agreement described below, including all future
advances made by Lender to Borrower or Owner and expenditures incurred by Lender
upon the occurrence of an Event of Default (collectively "Obligations"):
a. this Agreement and/or the following promissory notes and
agreements:
INTEREST PRINCIPAL AMOUNT/ FUNDING MATURITY CUSTOMER LOAN
RATE CREDIT LIMIT AGREEMENT DATE DATE NUMBER NUMBER
-------- ---------------- -------------- -------- -------- ------
VARIABLE $630,250.00 11/08/02 11/01/14
b. [X] all other presently existing or future, evidences of
indebtedness, obligations, agreements, instruments, guaranties
or otherwise of Borrower or Owner to Lender (whether incurred
for the same or different purposes than the foregoing); and
c. all renewals, extensions, amendments, modifications,
replacements or substitutions to any of the foregoing.
3. COLLATERAL. All of Owner's right, title and interest in the following
described property, as defined by the Uniform Commercial Code presently or as
hereafter amended or replaced, whether now or hereafter existing or now owned or
hereafter acquired by Owner and wherever located shall constitute the
"Collateral":
[ ] All accounts including, but not limited to, any accounts
described on Schedule A attached hereto and incorporated
herein by this reference;
[ ] All chattel paper including, but not limited to, any chattel
paper described on Schedule A attached hereto and incorporated
herein by this reference;
[ ] All deposit accounts including, but not limited to, any
deposit accounts described on Schedule A attached hereto and
incorporated herein by this reference;
[ ] All documents including, but not limited to, any documents
described on Schedule A attached hereto and incorporated
herein by this reference;
[ ] All equipment, including, but not limited to, any equipment
described on Schedule A attached hereto and incorporated
herein by this reference;
[ ] All fixtures, including, but not limited to, any fixtures
described on Schedule A and located or to be located on the
real property described on Schedule B attached hereto and
incorporated herein by this reference;
[ ] All general intangibles including, but not limited to, any
general intangibles described on Schedule A attached hereto
and incorporated herein by this reference;
[ ] All instruments including, but not limited to, any instruments
described on Schedule A attached hereto and incorporated
herein by this reference;
[ ] All inventory including, but not limited to, any inventory
described on Schedule A attached hereto and incorporated
herein by this reference;
[ ] All investment property including, but not limited to, any
investment property described on Schedule A attached hereto
and incorporated herein by this reference;
[ ] All letter-of-credit rights including, but not limited to, any
letter-of-credit rights described on Schedule A attached
hereto and incorporated herein by this reference;
[ ] All as-extracted collateral including, but not limited to, all
minerals or the like and accounts resulting from sales at the
well or minehead located on or related to the real property
described on Schedule B attached hereto and incorporated
herein by this reference;
[ ] All standing timber which is to be cut and removed under a
conveyance or contract for sale located on the real property
described on Schedule B attached hereto and incorporated
herein by this reference;
[ ] Other:
The property described on Schedule A;
All monies, instruments, and savings, checking or other accounts of Owner
(excluding XXX, Xxxxx, trust accounts, and other accounts subject to tax
penalties if so assigned) that are now or in the future in Lender's custody or
control;
All monies or instruments pertaining to the Collateral described above;
All accessions, accessories, additions, amendments, attachments, modifications,
replacements and substitutions to any of the above;
All proceeds and products of any of the above; and
All supporting obligations of any of the above.
Page 1 of 5 ___________________
4. OWNER'S TAXPAYER IDENTIFICATION. Owner's social security number or federal
taxpayer identification number is: 636006515
5. OWNER'S LOCATION. [ ] Owner is an individual and maintains his or her
principal residence in the state of: __________________________.
[X] Owner is a Corporation duly incorporated, registered, formed or organized,
validly existing and in good standing under the laws of the state of: Alabama.
[ ] Owner is a ___________ and maintains its principal place of business or, if
it has more than one place of business, its chief executive office in the state
of _____________
6. REPRESENTATIONS, WARRANTIES, AND COVENANTS. Owner represents, warrants and
covenants to Lender that:
(a) Owner is and shall remain the sole owner of the Collateral;
(b) Neither Owner, nor, to the best of Owner's knowledge, has any
other party used, generated, released, discharged, stored, or
disposed of any hazardous waste, toxic substance, or related
material (collectively "Hazardous Materials") or transported
any Hazardous Materials across the property except as allowed
by and in accordance with applicable federal, state and local
law and regulation. Owner shall not commit or permit such
actions to be taken in the future. The term "Hazardous
Materials" shall mean any substance, material, or waste which
is or becomes regulated by any governmental authority
including, but not limited to, (i) petroleum; (ii) asbestos;
(iii) polychlorinated biphenyls; (iv) those substances,
materials or wastes designated as a "hazardous substance"
pursuant to Section 311 of the Clean Water Act or listed
pursuant to Section 307 of the Clean Water Act or any
amendments or replacements to these statutes; (v) those
substances, materials or wastes defined as a "hazardous waste"
pursuant to Section 1004 of the Resource Conservation and
Recovery Act or any amendments or replacements to that
statute; or (vi) those substances, materials or wastes defined
as a "hazardous substance" pursuant to Section 101 of the
Comprehensive Environmental Response, Compensation and
Liability Act, or any amendments or replacements to that
statute. Owner is in compliance in all respects with all
applicable federal, state and local laws and regulations,
including, without limitation, those relating to "Hazardous
Materials", as defined herein, and other environmental matters
(the "Environmental Laws") and neither the federal government
nor any other governmental or quasi governmental entity has
filed a lien on the Collateral, nor are there any pending or
threatened governmental, judicial or administrative actions
with respect to environmental matters, which involve the
Collateral;
(c) Owner's location (Owner's place of organization, principal
place of business, or if more than one place of business,
chief executive office or principal residence) is in the state
indicated in paragraph 5. Owner shall not change its state of
location without first notifying Lender in writing;
(d) The Collateral is located and has been located during the four
(4) month period prior to the date hereof, at Owner's address
described above or any address described on Schedule C
attached hereto and incorporated herein by this reference.
Owner shall immediately advise Lender in writing of any change
in or addition to the foregoing addresses;
(e) Owner shall not become a party to any restructuring of its
form of business or participate in any consolidation, merger,
liquidation or dissolution without Lender's prior written
consent;
(f) Owner's exact legal name is as set forth on the first page of
this Agreement. Owner shall not change such name or use any
trade name without Lender's prior written consent, and shall
notify Lender of the nature of any intended change of Owner's
name, or the use of any trade name, and the proposed effective
date of such change;
(g) The Collateral is and shall at all times remain free of all
tax and other liens, security interests, encumbrances and
claims of any kind except for those belonging to Lender and
those described on Schedule D attached hereto and incorporated
herein by this reference. Without waiving the Event of Default
as a result thereof, Owner shall take any action and execute
any document needed to discharge any liens, security
interests, encumbrances and claims not described on Schedule
D;
(h) Owner shall defend the Collateral against all claims and
demands of all persons at any time claiming any interest
therein;
(i) Owner will cooperate with Lender in obtaining and maintaining
control with respect to all deposit accounts, investment
property, letter-of-credit rights and electronic chattel paper
constituting the Collateral;
(j) Owner shall provide Lender with possession, as appropriate, of
all chattel paper, documents, instruments and investment
property constituting the Collateral, and Owner shall promptly
xxxx all chattel paper, instruments, investment property and
documents constituting the Collateral to show that the same
are subject to Lender's security interest;
(k) All of Owner's accounts; chattel paper; deposit accounts;
documents; general intangibles; instruments; investment
property; letter-of-credit rights; and federal, state, county,
and municipal government and other permits and licenses;
trusts, liens, contracts, leases, and agreements constituting
the Collateral are and shall be valid, genuine and legally
enforceable obligations and rights belonging to Owner against
one or more third parties and not subject to any claim,
defense, set-off or counterclaim of any kind;
(1) Owner shall not amend, modify, replace, or substitute any
account; chattel paper; deposit account; document; general
intangible; instrument; investment property; or
letter-of-credit right constituting the Collateral without the
prior written consent of Lender. Owner shall not create any
chattel paper constituting the Collateral without placing a
legend on the chattel paper acceptable to Lender indicating
that Lender has a security interest in the chattel paper;
(m) No person shall file an amendment that is a termination
statement for a financing statement concerning any of the
Collateral without the prior written consent of Lender, except
to the extent permitted by the Uniform Commercial Code
presently or as hereafter amended or replaced;
(n) Owner has the right and is duly authorized to enter into and
perform its obligations under this Agreement. Owner's
execution and performance of these obligations do not and
shall not conflict with the provisions of any statute,
regulation, ordinance, rule of law, contract or other
agreement which may now or hereafter be binding on Owner;
(o) No action or proceeding is pending against Owner which might
result in any material or adverse change in its business
operations or financial condition or materially affect the
Collateral;
(p) Owner has not violated and shall not violate any applicable
federal, state, county or municipal statute, regulation or
ordinance (including but not limited to those governing
Hazardous Materials) which may materially and adversely affect
its business operations or financial condition or the
Collateral;
(q) Owner shall, upon Lender's request, deposit all proceeds of
the Collateral into an account or accounts maintained by Owner
or Lender at Lender's institution;
(r) Owner will, upon receipt, deliver to Lender as additional
Collateral all securities distributed on account of the
Collateral such as stock dividends and securities resulting
from stock splits, reorganizations and recapitalizations;
(s) Owner agrees to the terms of the Obligations and to the terms
of any renewals, extensions, amendments, modifications,
replacements or substitutions of the Obligations; Lender may
enter into agreements in the future with Borrower which, if
this Agreement so provides, will become Obligations secured by
the Collateral described in this Agreement; property other
than the Collateral may also secure the Obligations, that
Lender shall have no obligation to exercise its rights against
such property prior to exercising its rights against the
Collateral, that Lender may accept substitutions or exchanges
for any such property, and that Lender may release its
security interest in such property at any time; parties other
than Borrower may be or may become obligated under the
Obligations; and
(t) This Agreement and the obligations described in this Agreement
are executed and incurred for business and not consumer
purposes.
7. SALE OF COLLATERAL. Owner shall not assign, convey, lease, sell, license,
exchange or transfer any of the Collateral to any third party without the prior
written consent of Lender except for sales of inventory to buyers in the
ordinary course of business.
8. FINANCING STATEMENTS AND OTHER DOCUMENTS. Owner shall at any time and from
time to time take all actions and execute all documents required by Lender to
attach, perfect and maintain Lender's security interest in the Collateral and
establish and maintain Lender's right to receive the payment of the proceeds of
the Collateral including, but not limited to, executing any financing
statements, fixture filings, continuation statements, notices of security
interest and other documents required by the Uniform Commercial Code, presently
or as hereafter amended or replaced, and other applicable law. Owner shall pay
the costs of filing such documents in all offices wherever filing or recording
is deemed by Lender to be necessary or desirable. Lender shall be entitled to
perfect its security interest in the Collateral by filing carbon, photographic
or other reproductions of this Agreement and/or the aforementioned documents
with any authority required by the Uniform Commercial Code, presently or as
hereafter amended or replaced, or other applicable law. Owner authorizes Lender
to execute and file any financing statements, as well as extensions, renewals
and amendments of financing statements in such form as Lender may require to
perfect and maintain perfection of any security interest granted in this
Agreement.
9. INQUIRIES AND NOTIFICATION TO THIRD PARTIES. Owner hereby authorizes Lender
to contact any third party and make any inquiry pertaining to Owner's financial
condition or the Collateral. In addition, Lender is authorized to provide oral
or written notice of its security interest in the Collateral to any third party.
10. LOCKBOX, COLLATERAL ACCOUNT. If Lender so requests at any time (whether or
not Owner is in default of this Agreement), Owner will direct each of its
account debtors to make payments due under the relevant account or chattel paper
directly to a special lock box to be under the control of Lender. Owner hereby
authorizes and directs Lender to deposit into a special collateral account to be
established and maintained with Lender all checks, drafts and cash payments
received in the lock box. All deposits in the collateral account shall
constitute proceeds of Collateral and shall not constitute payment of any
Obligation. At its option, Lender may, at any time, apply finally collected
funds on deposit in the collateral account to the payment of the Obligations in
such order of application as Lender may determine, or permit Owner to withdraw
all or any part of the balance on deposit in the collateral account. If a
collateral account is so established, Owner agrees that Owner will promptly
deliver to Lender, for deposit into the collateral account, all payments on
accounts and chattel paper received by Owner. All such payments shall be
delivered to Lender in the form received (except for Owner's endorsement if
necessary). Until so deposited, all payments on accounts and chattel paper
received by Owner shall be held in trust by Owner for and as the property of
Lender and shall not be commingled with any funds or property of Owner.
11. COLLECTION OF INDEBTEDNESS FROM THIRD PARTIES. Lender shall be entitled to
notify, and upon the request of Lender, Owner shall notify any account debtor or
other third party (including, but not limited to, insurance companies) to pay
any indebtedness or obligation owing to Owner and constituting the Collateral
(collectively "Indebtedness") to Lender whether or not a default exists under
this Agreement. Owner shall diligently collect the Indebtedness owing to Owner
from its account debtors and other third parties until the giving of such
notification. In the event that Owner possesses or receives possession of any
instruments or other remittances with respect to the
Page 2 of 5 _________________
Indebtedness following the giving of such notification or if the instruments or
other remittances constitute the prepayment of any Indebtedness or the payment
of any insurance proceeds, Owner shall hold such instruments and other
remittances in trust for Lender apart from its other property, endorse the
instruments and other remittances to Lender, and immediately provide Lender with
possession of the instruments and other remittances. Lender shall be entitled,
but not required, to collect (by legal proceedings or otherwise), extend the
time for payment, compromise, exchange or release any obligor or collateral, or
otherwise settle any of the Indebtedness whether or not an event of default
exists under this Agreement. Lender shall not be liable to Owner for any action,
error, mistake, omission or delay pertaining to the actions described in this
paragraph or any damages resulting therefrom.
12. POWER OF ATTORNEY. Owner hereby appoints Lender as its attorney-in-fact to
endorse Owner's name on all instruments and other remittances payable to Owner
with respect to the Indebtedness, including any items received by Lender in any
lockbox account, or other documents pertaining to Lender's actions in connection
with the Indebtedness. In addition, Lender shall be entitled, but not required,
to perform any action or execute any document required to be taken or executed
by Owner under this Agreement. Lender's performance of such action or execution
of such documents shall not relieve Owner from any obligation or cure any
default under this Agreement. The powers of attorney described in this paragraph
are coupled with an interest and are irrevocable.
13. USE AND MAINTENANCE OF COLLATERAL. Owner shall use the Collateral solely in
the ordinary course of its business, for the usual purposes intended by the
manufacturer (if applicable), with due care, and in compliance with the laws,
ordinances, regulations, requirements and rules of all federal, state, county
and municipal authorities including environmental laws and regulations and
insurance policies. Owner shall not make any alterations, additions or
improvements to the Collateral without the prior written consent of Lender.
Owner shall ensure that Collateral which is not now a fixture does not become a
fixture. Without limiting the foregoing, all alterations, additions and
improvements made to the Collateral shall be subject to the security interest
belonging to Lender, shall not be removed without the prior written consent of
Lender, and shall be made at Owner's sole expense. Owner shall take all actions
and make any repairs or replacements needed to maintain the Collateral in good
condition and working order.
14. LOSS OR DAMAGE. Owner shall bear the entire risk of any loss, theft,
destruction or damage (collectively "Loss or Damage") to all or any part of the
Collateral. In the event of any Loss or Damage, Owner will either restore the
Collateral to its previous condition, replace the Collateral with similar
property acceptable to Lender in its sole discretion, or pay or cause to be paid
to Lender the decrease in the fair market value of the affected Collateral.
Lender has no duty to collect any income accruing on the Collateral or to
preserve any rights relating to the Collateral.
15. INSURANCE. If the original amount of the Obligations is $300 or more,
exclusive of the charges for insurance, and the value of the Collateral to be
insured is $300 or more ($500 or more if the collateral is a motor vehicle), the
Collateral will be kept insured for its full value against all loss or damage
caused by fire, collision, theft or other casualty. If the Collateral consists
of a motor vehicle having a retail value of at least $500, Owner will obtain
comprehensive and collision coverage in amounts at least equal to the actual
cash value of the vehicle with deductibles not to exceed $ n/a. OWNER HAS THE
RIGHT TO PROVIDE SUCH INSURANCE THROUGH AN EXISTING POLICY OR A POLICY
INDEPENDENTLY OBTAINED AND PAID FOR BY OWNER, subject to the right of Lender to
decline the insurance offered by Owner for reasonable cause before credit is
extended. Owner shall assign to Lender all rights to receive proceeds of
insurance not exceeding the amount owed under the obligations described above,
and direct the insurer to pay all proceeds directly to Lender. The insurance
policies shall require the insurance company to provide Lender with at least n/a
days written notice before such policies are altered or cancelled in any manner.
The insurance policies shall name Lender as a loss payee and provide that no act
or omission of Owner or any other person shall affect the right of Lender to be
paid the insurance proceeds pertaining to the loss or damage of the Collateral.
In the event Owner fails to acquire or maintain insurance, Lender (after
providing notice as may be required by law) may in its discretion procure
appropriate insurance coverage upon the Collateral and charge the insurance cost
as an advance of principal under the promissory note. Owner shall furnish Lender
with evidence of insurance indicating the required coverage. Lender may act as
attorney-in-fact for Owner in making and settling claims under insurance
policies, canceling any policy or endorsing Owner's name on any draft or
negotiable instrument drawn by any insurer.
16. INDEMNIFICATION. Lender shall not assume or be responsible for the
performance of any of Owner's obligations with respect to the Collateral under
any circumstances. Owner shall immediately provide Lender with written notice of
and hereby indemnifies and holds Lender and its shareholders, directors,
officers, employees and agents harmless from all claims, damages, liabilities
(including attorneys' fees and legal expenses), causes of action, actions, suits
and other legal proceedings (collectively "Claims") pertaining to its business
operations or the Collateral including, but not limited to, those arising from
Lender's performance of Owner's obligations with respect to the Collateral or
claims involving Hazardous Materials. Owner, upon the request of Lender, shall
hire legal counsel to defend Lender from such Claims, and pay the attorneys'
fees, legal expenses and other costs to the extent permitted by applicable law,
incurred in connection therewith. In the alternative, Lender shall be entitled
to employ its own legal counsel to defend such Claims at Owner's cost.
17. TAXES AND ASSESSMENTS. Owner shall execute and file all tax returns and pay
all taxes, licenses, fees and assessments relating to its business operations
and the Collateral (including, but not limited to, income taxes, personal
property taxes, withholding taxes, sales taxes, use taxes, excise taxes and
workers' compensation premiums) in a timely manner.
18. INSPECTION OF COLLATERAL AND BOOKS AND RECORDS. Owner shall allow Lender or
its agents to examine, inspect and make abstracts and copies of the Collateral
and Owner's books and records pertaining to Owner's business operations and
financial condition or the Collateral during normal business hours. Owner shall
provide any assistance required by Lender for these purposes. All of the
signatures and information pertaining to the Collateral or contained in the
books and records shall be genuine, true, accurate and complete in all respects.
Owner shall note the existence of Lender's security interest in its books and
records pertaining to the Collateral.
19. EVENTS OF DEFAULT. An Event of Default will occur under this Agreement in
the event that Owner, Borrower, any guarantor or any other third party pledging
Collateral to secure this Agreement: (a) fails to make any payment under this
Agreement, any other document or instrument relating to the foregoing or
executed in favor of Lender, or under any other indebtedness to Lender when due;
(b) fails to perform any obligation or breaches any warranty or covenant to
Lender contained in this Agreement or any other present or future written
agreement regarding this or any other indebtedness to Lender; (c) provides or
causes any false or misleading signature or representation to Lender; (d) sells,
conveys, or transfers rights in any Collateral without the prior written
approval of Lender; (e) seeks to revoke, terminate or otherwise limit its
liability under any continuing guaranty; (f) has a garnishment, judgment, tax
levy, attachment or lien entered or served against any of them or any of their
property; (g) dies, becomes legally incompetent, is dissolved or terminated,
ceases to operate its business, becomes insolvent, makes an assignment for the
benefit of creditors, or becomes the subject of any bankruptcy, insolvency or
debtor rehabilitation proceeding; (h) fails to provide Lender evidence of
satisfactory financial condition; or (i) has a majority of its outstanding
voting securities or other ownership interest sold, transferred or conveyed to
any person or entity other than any person or entity that has the majority
ownership as of the date of the execution of this Agreement.
In addition, an Event of Default will occur under this Agreement in the event
that: (a) the Collateral is used by anyone to transport or store goods, the
possession, transportation, or use of which, is illegal; (b) Lender reasonably
deems itself insecure or reasonably believes the prospect of payment or
performance is impaired due to a significant decline in the value of any of the
Collateral or a material adverse change in Owner's, Borrower's or any
guarantor's business or financial condition; or (c) any Collateral is destroyed,
damaged or lost in any material respect or is subjected to seizure,
confiscation, or condemnation.
20. RIGHTS OF LENDER ON EVENT OF DEFAULT. Upon the occurrence of an Event of
Default under this Agreement, Lender shall be entitled to exercise one or more
of the following remedies without notice or demand (except as required by law):
(a) to declare the Obligations immediately due and payable in full, such
acceleration shall be automatic and immediate if the Event of Default is a
filing under the Bankruptcy Code; (b) to collect the outstanding Obligations
with or without resorting to judicial process; (c) to change Owner's mailing
address, open Owner's mail, and retain any instruments or other remittances
constituting the Collateral contained therein; (d) to take possession of any
Collateral in any manner permitted by law; (e) to apply for and obtain, without
notice and upon ex parte application, the appointment of a receiver for the
Collateral without regard to Owner's financial condition or solvency, the
adequacy of the Collateral to secure the payment or performance of the
obligations, or the existence of any waste to the Collateral; (f) to require
Owner to deliver and make available to Lender any Collateral at a place
reasonably convenient to Owner and Lender; (g) to sell, lease or otherwise
dispose of any Collateral and collect any deficiency balance with or without
resorting to legal process; (h) to set-off Owner's obligations against any
amounts due to Owner including, but not limited to, monies, instruments, and
deposit accounts maintained with Lender; and (i) to exercise all other rights
available to Lender under any other written agreement or applicable law.
Lender's rights are cumulative and may be exercised together, separately, and in
any order. Unless the Collateral is perishable, threatens to decline speedily in
value or is of a type customarily sold on a recognized market, Lender will
provide reasonable notification of the time and place of any sale or intended
disposition as required under the Uniform Commercial Code, presently or as
hereafter amended or replaced. Lender has no obligation to clean up or otherwise
prepare the Collateral for sale. Lender may comply with any applicable state or
federal law requirements in connection with a disposition of the Collateral and
compliance will not be considered adversely to affect the commercial
reasonableness of any sale of the Collateral. If the Collateral consists of
securities, Lender shall be entitled to transfer the securities into the name of
Lender or its designee and to vote the securities. Lender shall be authorized to
notify the issuer of the securities to remit any related dividends, interest and
securities resulting from stock splits, reorganizations and capitalizations
directly to Lender or its designee. In the event that Lender institutes an
action to recover any Collateral or seeks recovery of any Collateral by way of a
prejudgment remedy in an action against Owner, Owner waives the posting of any
bond which might otherwise be required. Upon default, Owner shall segregate all
proceeds of Collateral and hold such proceeds in trust for Lender. Lender's
remedies under this paragraph are in addition to those available at common law,
such as offset.
Page 3 of 5 ______________
21. APPLICATION OF PAYMENTS. Whether or not a default has occurred under this
Agreement, all payments made by or on behalf of Owner and all credits due to
Owner from the disposition of the Collateral or otherwise may be applied against
the amounts paid by Lender (including attorneys' fees and legal expenses) in
connection with the exercise of its rights or remedies described in this
Agreement and any interest thereon and then to the payment of the remaining
Obligations in whatever order Lender chooses.
22. REIMBURSEMENT OF AMOUNTS EXPENDED BY LENDER. Owner shall reimburse Lender
for all amounts (including attorneys' fees and legal expenses) expended by
Lender in the performance of any action required to be taken by Owner or the
exercise of any right or remedy belonging to Lender under this Agreement,
together with interest thereon at the lower of the highest rate described in any
promissory note or credit agreement executed by Borrower or Owner or the highest
rate allowed by law from the date of payment until the date of reimbursement.
These sums shall be included in the definition of Obligations, shall be secured
by the Collateral identified in this Agreement and shall be payable upon demand.
Lender has no duty to take any action to protect the value of the Collateral or
to exercise any rights of the Owner with respect to the Collateral.
23. ASSIGNMENT. Owner shall not be entitled to assign any of its rights,
remedies or obligations described in this Agreement without the prior written
consent of Lender. Consent may be withheld by Lender in its sole discretion.
Lender shall be entitled to assign some or all of its rights and remedies
described in this Agreement without notice to or the prior consent of Owner in
any manner.
24. MODIFICATION AND WAIVER. The modification or waiver of any of Owner's
Obligations or Lender's rights under this Agreement must be contained in a
writing signed by Lender. Lender may perform any of Owner's Obligations or delay
or fail to exercise any of its rights without causing a waiver of those
Obligations or rights. A waiver on one occasion shall not constitute a waiver on
any other occasion. Owner's Obligations under this Agreement shall not be
affected if Lender amends, compromises, exchanges, fails to exercise, impairs or
releases any of the obligations belonging to any Owner or third party or any of
its rights against any Owner, third party, Collateral or any other property
securing the Obligations. Owner waives any right it may have to require Lender
to pursue any third person for any of the Obligations.
25. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and inure to
the benefit of Owner and Lender and their respective successors, assigns,
trustees, receivers, administrators, personal representatives, legatees, and
devisees.
26. NOTICES. Any notice or other communication to be provided under this
Agreement shall be in writing and sent to the parties at the addresses described
in this Agreement or such other address as the parties may designate in writing
from time to time.
27. SEVERABILITY. If any provision of this Agreement violates the law or is
unenforceable, the rest of the Agreement shall remain valid.
28. APPLICABLE LAW. This Agreement shall be governed by the laws of the state
indicated in Lender's address, except to the extent that the Uniform Commercial
Code, presently or as hereafter amended or replaced, provides for the
application of the law of the state of Owner's location, as indicated in
paragraph 5. Unless applicable law provides otherwise, Owner consents to the
jurisdiction and venue of any court located in such state selected by Lender in
the event of any legal proceeding under this Agreement.
29. COLLECTION COSTS. To the extent permitted by law, Owner agrees to pay
Lender's reasonable fees and costs of attorneys and other agents (including
without limitation paralegals, clerks and consultants), whether or not such
attorney or agent is an employee of Lender, which are incurred by Lender in
collecting any amount due or enforcing any right or remedy under this Agreement,
whether or not suit is brought, and including, but not limited to, all fees and
costs incurred on appeal, in bankruptcy, and for post-judgment collection
actions.
30. MISCELLANEOUS. This Agreement is executed for commercial purposes. Owner
shall supply information regarding Owner's business operations and financial
condition or the Collateral in the form and manner as requested by Lender from
time to time. All information furnished by Owner to Lender shall be true,
accurate and complete in all respects. Owner and Lender agree that time is of
the essence. Owner waives presentment, demand for payment, notice of dishonor
and protest except as required by law. All references to Owner in this Agreement
shall include all parties signing below except Lender. This Agreement shall be
binding upon the heirs, successors and assigns of Owner and Lender. If there is
more than one Owner, their obligations under this Agreement shall be joint and
several. This Agreement shall remain in full force and effect until Lender
provides Owner with written notice of termination. This Agreement represents the
complete and integrated understanding between Owner and Lender regarding the
terms hereof.
31. WAIVER OF JURY TRIAL. LENDER AND OWNER HEREBY WAIVE ANY RIGHT TO A TRIAL BY
JURY IN ANY CIVIL ACTION ARISING OUT OF, OR BASED UPON, THIS SECURITY AGREEMENT.
32. ADDITIONAL TERMS:
-------------------------------------------------------------------------------
OWNER ACKNOWLEDGES THAT OWNER HAS READ, UNDERSTANDS, AND AGREES TO THE TERMS AND
CONDITIONS OF THIS AGREEMENT. OWNER ACKNOWLEDGES RECEIPT OF AN EXACT COPY OF
THIS AGREEMENT.
Dated: November 08, 2002
LENDER: COMPASS BANK
By: /s/ Xxxxxx X. XxXxxxxxx
----------------------------------
XXXXX XXXXXXXXX
CITY PRESIDENT
OWNER: XXXX XXXXXXXX TRANSPORTATION, OWNER:
CO., INC.
By: /s/ Xxxxxxx Xxxxxx
---------------------------------- -------------------------------------
XXXXXXX XXXXXX
CFO
OWNER: OWNER:
------------------------------------- -------------------------------------
OWNER: OWNER:
------------------------------------- -------------------------------------
OWNER: OWNER:
------------------------------------- -------------------------------------
Page 4 of 5 ______________
SCHEDULE A
THIRTY SIX (00) 0000 XXXXXXXX PLATFORM TRAILERS PER LIEN DATE OF 10/18/02 AS PER
EXHIBIT "A" ATTACHED HERETO AND FORMING A PART HEREOF.
SCHEDULE B
Record Owner Name;
SCHEDULE C
SCHEDULE D
Page 5 of 5 ______________
EXHIBIT "A"
Xxxx Xxxxxxxx Transportation Co., Inc.
November 8, 2002
Loan i/a/o $630,000
Titles are reflecting a lien date of 10/18/02 Description of collateral:
Thirty-six (36) 2003 Xxxxxxxx Platform Trailers, Serial numbers:
00X00000000000000
00X00000X00000000
00X00000000000000
00X00000000000000
00X00000000000000
00X00000000000000
00X00000000000000
00X00000000000000
00X00000000000000
00X00000000000000
00X00000000000000
00X00000000000000
00X00000000000000
00X00000000000000
00X00000000000000
00X00000X00000000
00X00000000000000
00X00000000000000
00X00000000000000
00X00000000000000
00X00000X00000000
00X00000000000000
00X00000000000000
00X00000000000000
00X00000000000000
00X00000000000000
00X00000000000000
00X00000000000000
00X00000000000000
0X000000000000000
00X00000000000000
00X00000000000000
00X00000000000000
00X00000000000000
00X00000X00000000
00X00000000000000
