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EXHIBIT 10.12
SECURITY AGREEMENT
1. Grant of Security Interest. Xxxxxxxx Equipment, Inc., 0000
Xx-Xxxxx Xxxxxxxxxx Xxxxx, Xx. Xxxxx, XX 00000, a Missouri corporation (the
"Debtor"), in order to induce SOUTHWEST BANK OF ST. LOUIS, 0000 Xxxxx
Xxxxxxxxxxxx, Xx. Xxxxx, Xxxxxxxx 00000-0000 (the "Bank") to extend certain
financial accommodations and in consideration thereof and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, hereby transfers, assigns, and grants to Bank a continuing and
irrevocable security interest and general lien in and to all of the following
property and rights of Debtor:
(a) All accounts, accounts receivable, other receivables,
leases and lease payments, contract rights, chattel paper,
instruments and documents, and notes; any other obligations or
indebtedness owed to Debtor from whatever source arising; all
rights of Debtor to receive any performance or any payments in
money or kind; all guaranties of the foregoing and insurance
policies and proceeds relating thereto, and all rights of
Debtor as an unpaid seller of goods and services, including,
but not limited to, the rights to stoppage in transit,
replevin, reclamation, and resale; and all of the foregoing
whether now owned or existing or hereafter created or acquired
or arising. The rights and property described in this Section
1(a) are referred to herein collectively as the "Accounts
Collateral."
(b) All inventory (including without limitation all
goods, merchandise, raw materials, goods in process, finished
goods, findings or component materials, and all supplies,
incidentals, goods, office supplies, packaging materials, and
any and all goods or items used or consumed in the operation
of the business of Debtor or which contribute to the finished
products or to the sale, promotion and shipment thereof,
without exception) now owned or hereafter acquired by Debtor
and held for sale, lease or resale or furnished or to be
furnished under contracts of service, or used or consumed in
Debtor's business and all documents of title evidencing any
part of any of the foregoing accounts, contract rights, notes,
drafts, acceptances, instruments and chattel paper, all
returned or repossessed goods arising from or relating to any
contract rights, accounts or other sale or disposition of
inventory all wherever located; as well as products,
accessions and all cash and non-cash proceeds, immediate or
remote, of any sale or other disposition of any of the
foregoing. The rights and property described in this Section
1(b) are referred to herein collectively as the "Inventory
Collateral."
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(c) All now owned or hereafter acquired equipment,
computers, including hardware and software, machinery,
furniture, furnishings, fixtures, tools, aircraft, vessels and
vehicles of every kind and description, all parts and
accessories for and relating to all of the foregoing, together
with the products of all of the foregoing and all additions and
accessions to, replacements of, insurance or condemnation
proceeds of, and documents covering all of the foregoing, all
property received wholly or partly in trade or exchange for
all of the foregoing, and all rents, revenues, issues,
profits, accessions, proceeds arising from the sale, lease,
rent, license, encumbrance, collection, use or any other
temporary or permanent disposition of, all of the foregoing or
any interest therein. The rights and property described in
this Section 1(c) are referred to herein collectively as the
"Equipment Collateral."
(d) All choses in action and causes of action, general
intangibles and all other intangible personal property of
Debtor of every kind and nature now owned or hereafter
acquired by Debtor or arising, including, without limitation,
corporate or other business records, all books, ledgers, books
of account, records, writings, data bases, information and
other property of Debtor, inventions, designs, blueprints,
plans specifications, patents, patent applications, service
marks, trademarks, trade names, trade secrets, goodwill,
copyrights, registrations, licenses, franchises, tax refund
claims, insurance proceeds thereof, pension and insurance
surpluses, and any letter of credit, guarantee, claim,
security interest or other security held by or granted to
Debtor to secure payment by an account debtor of any of the
accounts of Debtor. The rights and property described in this
section 1(d) are referred to herein as the "General
Intangibles Collateral".
In addition to, and not by way of limitation of, the grant of
a security interest in service marks, trademarks and
patents set forth above Debtor hereby, effective upon the
occurrence of a default under this Agreement and upon the
written demand of Bank, assigns, grants, sells, conveys,
transfers title to and sets over to Bank for the benefit of
the Bank all of Debtor's right, title and interest, whether
now or hereafter existing or acquired, in and to such service
marks, trademarks and patents.
(e) All products and proceeds of all of the foregoing and all
additions and accessions to, replacements
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of, insurance condemnation proceeds of, and documents covering
all of the foregoing, all property received wholly or partly in
trade or exchange for all of the foregoing, and all rents,
revenues, issues, profits cash or non-cash, proceeds and
accessions arising from the sale, lease, license, encumbrance,
collection, or any other temporary or permanent disposition of,
all of the foregoing or any interest therein (the "Proceeds").
The Accounts Collateral, Inventory Collateral, Equipment Collateral,
General Intangibles Collateral and Proceeds are collectively referred to herein
as the "Collateral".
2. Proceeds. The security interests granted Bank in any proceeds or
other property arising out of the disposition of the Collateral and anything
contained herein or in any financing statement shall not be deemed permission or
assent by the Bank to any sale or disposition of the Collateral except to the
extent expressly provided herein.
3. Indebtedness Secured. The security interest granted hereby is to
secure payment in full of (i) any and all sums from time to time due from
Debtor to the Bank, any instruments evidencing the indebtedness of Debtor to the
bank and the full and complete performance of all agreements and documents
executed or delivered pursuant to any indebtedness due from Debtor to the Bank
all as same may be amended, modified or extended from time to time, (ii) any
other indebtedness of Debtor, whether evidenced by instruments executed by
Debtor or not, payable and owing to the Bank as provided by the terms of any
such instrument (iii) all advances made by the Bank to discharge taxes or
levies on, or made for repairs to, maintenance of, or insurance of, the
Collateral, (iv) all money or other credit heretofore and hereafter advanced by
the Bank to or for the account of Debtor, (v) all other present or future,
direct or contingent, liabilities of Debtor to the Bank of any nature whatsoever
and (vi) all costs and expenses incurred in the collection of the foregoing,
including representation in any bankruptcy proceedings, including attorney's
fees.
It is the true, clear, and express intention of the Debtor that the
continuing grant of this security interest remain as security for payment and
performance of the indebtedness secured hereby, whether now existing, or
which may hereinafter be incurred, or whether or not contemplated by the
parties at the time of the granting of this security interest. The notice of
the continuing grant of this security interest, therefore, shall not be
required to be stated on the face of any document representing any such
indebtedness, nor otherwise identify it as being secured hereby; and if such
indebtedness shall remain, or become that of less than all of the Debtors
herein, any Debtor not liable therefrom hereby expressly hypothecates his, her,
its, or their ownership interest in the collateral to the extent required to
satisfy said
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Indebtedness, without restriction, or limitation. Any such Indebtedness shall
be deemed to have been made pursuant to Section 400.9-204(5) of the Uniform
Commercial Code of Missouri.
4. Debtor's Name and Place of Business. Debtor's name and address
indicated in Section 1 hereof are the sole name and business address of Debtor
and Debtor shall not change its name or address nor establish any other name(s)
or addresses without the Bank's prior written consent.
5. Collateral Use. The Collateral shall be kept in good order and repair
and Debtor will not permit waste or do anything to impair the value of the
Collateral or any part thereof or use or permit others to use the Collateral in
violation of any insurance policy covering the collateral or any statute,
ordinance or state federal regulation. Debtor shall give Bank immediate written
notice of any damage, destruction, theft, loss or the occurrence of any event
which impairs the value of the Collateral.
6. Adverse Security Interests and Liens. Except for the security interest
granted hereby, Debtor is, or, to the extent that the Collateral will be
acquired after the date hereof, will be, the owner of the Collateral free from
any and all liens, security interests or encumbrances; Debtor shall not transfer
or assign any interest in the Agreement or the Collateral; and Debtor, at
Debtor's expense, will defend the Collateral against all claims and demands of
all other persons at any time claiming the same or an interest therein. There is
no financing statement now on file in any public office covering the Collateral,
or intended so to be, or in which Debtor is named or signed as debtor, and
Debtor will not execute and there will not be on file in any public office any
financing statement or statements covering the Collateral except the financing
statement to be filed in respect of and for the security interest in
Bank hereby granted or provided for.
7. Insurance. Debtor, at Debtor's sole cost, shall at all times keep the
Collateral insured at the replacement value thereof against fire with extended
coverage insurance and such other risks as Bank may require, in such form, for
such periods and written by such companies as may be satisfactory to Bank,
payable to and protecting Bank for not less than the total amount owing on all
indebtedness and obligations secured hereby. All policies of insurance shall
provide that Bank be the loss payee and that the proceeds shall be paid first to
Bank and that Bank shall be protected against loss from any act or neglect of
Debtor or third parties, and such other endorsements as Bank may from time to
time request. Debtor will promptly provide Bank with evidence of such insurance.
Such insurance policies shall provide for at least ten (10) days written notice
to Bank prior to cancellation. Debtor hereby assigns to Bank, its successors and
assigns, the proceeds of all such insurance to the extent of the unpaid balance
of the indebtedness secured hereby; and appoints Bank as its attorney-in-fact to
file claims under any such insurance policies, to receive, receipt and give
acquittance for any payments that may be payable
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thereunder, and to execute any and all endorsements, receipts, releases,
assignments, reassignments or other documents that may be necessary to effect
the collection, compromise or settlement of any claims under any such insurance
policies. Bank or its successors or assigns may cancel such insurance at any
time and shall receive the return premium, if any, therefor, and may apply such
return premium to the purchase of similar insurance or to the balance due on
the indebtedness secured hereby at its election.
8. Location of Collateral. The Collateral will be kept only at
Debtor's place of business as indicated above in Section 1 hereof. Collateral
shall not be attached to any real estate. To the extent collateral is located
on premises owned by any person other than Debtor or subject to a lien, deed of
trust or mortgage, Debtor will provide Bank an executed N/A (Landlord/Mortgage
Lien Waiver) agreement. Debtor agrees to notify Bank in writing of any intended
sale, mortgage or conveyance of the realty and to give written notice of the
terms and conditions of this Agreement to any prospective purchaser, mortgagee
or grantee of said realty and a copy of such notice to Bank. None of the
Collateral has, within four (4) months preceding the date hereof, been located
at any place other than the location(s) shown in Section 1.
9. Records. The records concerning the Collateral will be kept at
the address indicated in Section 1 hereof. Bank may inspect such records or the
Collateral at any time at any address. Debtor will not remove any part of such
records from said location without the prior written consent of the Bank.
10. Financing Statement and Other Acts. Debtor will join with the
Bank in executing Financing Statements, including continuations and amendments
of same, pursuant to the Uniform Commercial Code in form satisfactory to Bank
and will pay the cost of filing the same in all public offices wherever filing
is deemed by Bank to be necessary or desirable. Debtor hereby irrevocably
authorizes and appoints Bank the attorney-in-fact of Debtor to execute any and
all Financing Statements, including continuations and amendments of same, which
Bank deems necessary. If any applicable law requires the registration of the
Collateral or the issuance of a certificate of title therefor or both, Debtor
agrees to promptly comply with such law(s) and shall cause notice of the
security interest of Bank to be shown on any such certificate of title and will
join in executing such application for the title forms as Bank shall require.
Upon request of the Bank, Debtor will promptly do all other acts and
things, and will execute and file all other instruments deemed necessary to
Bank under applicable law to establish, maintain and continue perfected the
Bank's first priority security interest in the Collateral and to effectuate the
intent of this Agreement and will pay all costs and expenses of filing and
recording or promptly reimburse Bank therefor if such costs and expenses are
incurred by Bank, including the costs of any searches
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deemed necessary by Bank to establish, determine or maintain the validity and
the priority of the security interest of Bank, and pay or otherwise satisfy all
other claims and charges which in the opinion of Bank might prejudice, imperil
or otherwise affect the Collateral or Bank's security interest therein. A
photocopy of this Agreement shall be deemed an original for purposes of filing
or recording.
11. Taxes and Assessments. Debtor will pay promptly when due all
taxes, assessments and other charges levied or assessed upon the Collateral or
for its use or operation or upon this Agreement or upon any or other documents
evidencing the indebtedness or obligations secured hereby.
12. Collateral Certificates and Schedules. Debtor shall furnish to
Bank from time to time, upon request, written statements, certificates and
schedules identifying and describing the Collateral and any additions thereto
and substitutions therefor in such detail as Bank may require and certified as
to accuracy by the President or Chief Executive Officer of Debtor.
13. Collateral Disposition. Until default hereunder or receipt of
contrary instructions from Bank:
(a) Debtor may have possession of the Collateral and use
it in any lawful manner not inconsistent with this
Agreement or with any policy of insurance thereon.
(b) Debtor may sell the Inventory Collateral in the
ordinary course of business, but not a transfer or
disposition on satisfaction of debt, and Debtor may
use and consume raw materials or supplies, the use and
consumption of which is necessary in order to carry on
Debtor's business.
(c) Debtor will, at its own expense, collect, as and when
due, all amounts due under the Accounts Collateral,
including the taking of such action with respect to
such collection as Bank may reasonably request or, in
the absence of such request, as Debtor may deem
advisable, and may grant, in the ordinary course of
business, to any party obligated on any of the Accounts
Collateral, any rebate, refund or adjustment to which
such party may be lawfully entitled, and may accept, in
connection therewith, the lawful return of goods, the
sale or lease or which shall have given rise to such
Accounts Collateral. Bank may, however, at any time and
at Debtor's expense, notify any parties obligated on
any of the Accounts Collateral to make payment directly
to Bank of any amounts due or to become due thereunder
and enforce collection of any of the Accounts
Collateral by suit or
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otherwise and surrender, release or exchange all or any part
thereof, or compromise, extend or renew same for any period.
14. Undertakings by Bank. Bank may from time to time, at its sole
option, and without notice to Debtor, perform any undertaking of Debtor
hereunder which the Debtor shall fail to perform and take any other action which
Bank deems necessary for the maintenance or preservation of any of the
Collateral or the interest of the Bank therein (including, without limitation,
the discharge of taxes or liens of any kind against the Collateral or the
procurement of insurance) and Debtor agrees to forthwith reimburse Bank, on
demand, for all expenses of Bank in connection with the foregoing, together
with interest thereon at a per annum rate equal to the highest rate of
interest applicable to any of the indebtedness secured hereby, until reimbursed
by Debtor and all amounts not so reimbursed shall be added to and become a part
of the indebtedness secured hereby. Bank may, for the foregoing purposes, act
in its own name or that of Debtor and may also act for the purpose of adjusting
or settling any policy of insurance on the Collateral, or endorsing any draft
received in connection therewith. For all of the foregoing purposes, Debtor
hereby grants to any officer of Bank its power of attorney, irrevocable so long
as any of the indebtedness secured hereby shall be outstanding.
15. Warranties Correct. Debtor hereby warrants and represents that all
financial statements, certificates and schedules heretofore and hereafter
delivered to Bank by or on behalf of Debtor, and any statement and data
submitted in writing to Bank in connection with this Agreement or any
indebtedness of Debtor to Bank, are true and correct and fairly present the
financial condition of Debtor for the periods involved.
16. Identification of Collateral. Upon request of the Bank, Debtor will
stamp on its records concerning the Collateral, a notation, in form satisfactory
to the Bank, of the security interest of the Bank hereunder and when requested
by the Bank, Debtor shall further affix to the Collateral such signs or labels
as shall be satisfactory to Bank to indicate the security interest of Bank in
the Collateral. Upon request of Bank at anytime, Debtor will deliver to Bank
lists or copies of all Collateral promptly and will deliver to Bank, promptly
upon receipt, all proceeds of Collateral received by Debtor, including proceeds
of the Accounts Collateral referred to above, in the exact form in which they
are received. To protect Bank's rights hereunder, Debtor will assign or endorse
proceeds to Bank as Bank may request, and hereby constitutes any officer or
employee of Bank its true and lawful attorney-in-fact, with full power to
endorse the name of Debtor upon any invoice, freight or express xxxx or xxxx of
lading relating to any such accounts, upon drafts against account debtors and
assignments and verifications of accounts and notices to account debtors; upon
any and every remittance or instrument of payment, including checks, drafts and
money orders, and in whatever form received; and to do and perform all other
acts and things
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necessary, proper and requisite to carry out the intent of this Agreement. The
power herein granted shall be deemed to be coupled with an interest and shall
not be revoked by Debtor until Bank has been paid all sums due it, including
all proper expenses, with interest. All such items received by Bank for the
Collateral shall be deposited to the credit of Debtor in an account maintained
at Bank, as security for the payment of the indebtedness. Bank may, from time
to time, in its discretion, (a) apply all of the then balance, representing
collected funds, in such deposit account, toward payment of all or any part of
the indebtedness secured hereby, whether or not then due, in such order of
application as Bank, in its sole discretion, may determine, or (b) permit
Debtor to use all or part of said account in the normal course of Debtor's
business.
17. Account Debtors. With respect to the Accounts collateral, Bank may
at anytime notify account debtors that the accounts have been assigned to Bank
and shall be paid to Bank. Upon request of Bank at any time, Debtor will so
notify such account debtors and will indicate on all invoices to such account
debtors that the accounts are payable to Bank.
18. Accounts Collateral Warranties. The Debtor warrants and represents
with respect to the Accounts Collateral that:
(a) All accounts are due and payable in cash not more than thirty
(30) days from the date of the invoice evidencing the account.
(b) The accounts are genuine in all respects and are as purported and
the account debtor has the capacity to enter into the
transaction.
(c) The accounts have not been previously assigned or encumbered.
(d) Debtor has full right and authority to assign them.
(e) If arising from the sale or lease of goods, such goods have been
shipped or delivered to the account debtor.
(f) The accounts are valid, legally enforceable obligation of the
account debtor thereunder and are not subject to any offset,
counterclaim or other defense on the part of such account debtor
or to any claim on the part of such account debtor denying
liability thereunder in whole or in part.
(g) No partial payment not shown upon the accounts have been made by
anyone.
(h) They are enforceable according to terms.
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(i) They are evidenced by invoices, dated not later than the date of
shipment or performance rendered to such account debtor and are
not evidenced by any instrument or chattel paper.
(j) Bank has not notified Debtor that any such account or account
debtor is unsatisfactory.
19. Default. Debtor shall be in default under this Agreement upon the
occurrence of any one or more of the following events or conditions:
(a) Failure of Debtor to pay any sum due under any indebtedness or
liability secured hereby;
(b) Breach or failure to perform by Debtor of any covenant, promise,
condition, obligation or liability contained or refrred to
herein, in the indebtedness secured hereby or in any other
agreement to which Debtor and Bank are parties;
(c) The making or furnishing in any manner of any representation,
statement or warranty to Bank by or on behalf of Debtor in
connection with this Agreement or all or any part of the
indebtedness secured hereby, which representation, statement or
warranty was false in any material respect when made or
furnished;
(d) Any loss, theft, damage, destruction, sale or encumbrance to or
of any of the Collateral;
(e) Any tax levy, attachment, garnishment, levy or execution or other
process issued against Debtor or the Collateral;
(f) Any suspension of payment by Debtor to any creditor or any event
or occurrence which constitutes an event of default or which
results in the acceleration of the maturity of any indebtedness
of Debtor to others, under any indenture, agreement, undertaking
or other instrument;
(g) Merger, consolidation dissolution, termination of existence,
insolvency, business failure, bankruptcy, appointment of a
custodian or receiver of any part of the property of, the
commencement of any bankruptcy or insolvency proceedings or any
assignment for the benefit of any creditors by or against Debtor
or any co-maker, accommodation maker, surety or guarantor of
Debtor, or entry of any judgment against any of them, or failure
of any
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guarantor or surety of Debtor to provide Bank with financial
information promptly when requested by Bank;
(h) Any modification or change of the name of Debtor, as set forth
Section 1 hereof, without the express prior written consent of
Bank;
(i) Determination by Bank that a material adverse change has occurred
in the financial condition of Debtor from that disclosed in the
financial statement of Debtor heretofore furnished to Bank, or
from the condition of Debtor or the Collateral as heretofore
most recently disclosed to Bank in any manner.
20. Remedies. Upon the occurrence of any default in this Agreement, Bank
may at its option, without notice or demand, declare all indebtedness secured
hereby immediately due and payable and Bank, upon the occurrence of any such
default, may exercise any and all of the rights and remedies of a secured party
under the Uniform Commercial Code of Missouri, then in effect. Bank may take
immediate possession of the Collateral or any part, thereof wherever the same
may be found, and for said purposes may, and is hereby appointed Debtor's agent
and authorized by Debtor to, enter Debtor's premises for the purpose of
removing, assembling or taking possession of the Collateral without liability
for trespass or any other right of action by reason of taking possession of said
Collateral. Whenever the Collateral is in Bank's possession, Bank may use and
operate same as appropriate for the purpose of protecting Bank's interest with
respect thereto. In addition, if any Collateral shall require rebuilding,
repairing, maintenance, preparation, or is in process or other unfinished state,
Bank shall have the right at its option to, do such rebuilding, repairing
preparation, processing or completion of manufacturing on or off Debtor's
premises, for the purpose of putting the Collateral in such saleable form as
Bank shall deem appropriate. Bank may require Debtor at Debtor's expense to
assemble the Collateral and make it available to Bank at a place to be
designated by Bank. Debtor agrees to pay all costs of Bank in the collection of
the indebtedness and enforcement of rights hereunder, including reasonable
attorney's fees and legal expense of any repairs to any realty or other property
to which any of the Collateral may be affixed or be a part. Any notice of any
sale, lease, or other disposition, or other intended action by Bank shall be
deemed reasonable if it is in writing and deposited in the United States mail at
least ten (10) days in advance of the intended disposition or other intended
action or, with respect to a private sale, at least ten (10) days in advance of
the date after which a private sale or sales shall occur, first class postage
prepaid, addressed to Debtor at the address first above set forth or to any
other address of Debtor appearing on the records of Bank. Debtor waives all
rights to require any marshalling of assets.
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Bank shall also have the right to apply for and have a receiver appointed
by a court of competent jurisdiction to enforce its rights and remedies
hereunder in order to manage, protect and preserve the Collateral, continue the
operation of the business of the Debtor; and collect all revenues and profits
thereof and apply the same to the payment of (i) all expenses and other charges
of such receivership, including the compensation of the receiver, and (ii) the
indebtedness secured hereby until a sale or other disposition of such Collateral
shall be finally made and consummated.
Bank may notify any and all parties obligated on any of the Collateral that
the Collateral has been assigned to Bank and that all payments thereon are to be
made directly to Bank. Bank may settle, compromise or release, on terms
acceptable to Bank, in whole or in part, any amounts owing on such Collateral;
xxx to enforce payments and prosecute any action or proceeding with respect to
the Collateral in its own name or the name of Debtor; and extend the time of
payment, make allowance and adjustments, and issue credits in its own name or
the name of the Debtor.
The proceeds of any sale shall be applied in the following order: first, to
pay all costs and expenses of every kind for care, safekeeping, collection,
sale, delivery or otherwise (including expenses incurred in the protection of
Bank's title to or lien upon or right in any such property, expenses for legal
services of any kind in connection therewith or in making any such sale or
sales, insurance, commission for sale and guaranty) then to interest on all
indebtedness or obligations of Debtor to Bank; then to principal thereof,
whether or not such indebtedness or obligations are due or accrued. Any
remaining surplus shall be paid to whomever shall be legally entitled.
Application of proceeds as between particular indebtedness or obligations to
Bank shall be in the absolute and sole discretion of Bank. If the proceeds of
any such sales are insufficient to pay all indebtedness or obligations of Debtor
with interest, Debtor shall remain liable for the deficiency.
21. Set Off Rights. Regardless of the adequacy of any security which
Bank may at any time hold hereunder or of the adequacy of any other security
which Bank may obtain from Debtor in connection with any other transactions and
regardless of any other rights which Bank may have herein and in addition to all
rights Bank has pursuant to any agreement, instrument, guaranty, certificate,
assignment, document or note or notes held by Bank to which Debtor and the Bank
are parties or relating to this Agreement, any deposits or other monies due from
Bank at any of its offices to Debtor shall constitute additional security for,
and may be set off against, the indebtedness or obligations secured hereby even
though said indebtedness or obligations may not then be due. Any and all
instruments, documents, policies and certificates of insurance, securities,
goods, accounts receivable, choses in action, chattel paper, cash, property and
proceeds thereof owned by Debtor or in which Debtor has an interest, which now
or hereafter
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are at any time in possession or control of Bank, or in transit by mail or
carrier to or from Bank, or in the possession of any third party acting in
Bank's behalf, without regard to whether Bank received the same in pledge, for
safekeeping, as agent for collection or transmission, or otherwise, or whether
Bank has conditionally released the same shall constitute additional security
for the indebtedness and obligations of Debtor to Bank. Bank shall have the
right in its sole discretion to determine which rights, security liens,
security interest or remedies it shall at any time, pursue, relinquish,
subordinate, modify or take any action with respect thereto, without in any way
modifying or affecting any other security or any of Bank's rights hereunder.
22. Inspection. Bank or its nominee shall have the privilege at any
time, upon request, of inspecting during reasonable business hours any of the
business properties or premises of the Debtor and the books and records of the
Debtor relating not only to the Collateral, or the processing or collecting
thereof, but also those relating to its general business affairs and financial
condition. The Debtor further agrees from time to time to furnish such other
reports, data and financial statements, in respect of its business and
financial condition, as Bank may reasonably require.
23. Miscellaneous.
(a) Bank shall not be deemed to have waived or modified any
of Bank's right hereunder, by course of conduct of
otherwise, or under any other writing signed by Debtor
unless such waiver or modification be in writing
and signed by an officer of Bank and then such waiver
or modification shall be effective only for the period
and under the terms and conditions as are specifically
set forth therein. No delay or commission on the part
of Bank in exercising any right shall operate as a
waiver or modification of such right or any other
right. No waiver of any default on one occasion shall
operate as a waiver of any other default or of the same
default on a future or different occasion. All Bank's
rights and remedies, whether evidenced hereby or by any
other writing, shall be cumulative and may be exercised
from time to time singularly, concurrently or
sucessively. If any Section or any part of any Section
of this Agreement shall be construed to be illegal or
invalid, such Section shall be considered separately
from the remainder of this Agreement and shall have no
effect on the validity or legality of the remainder of
this Agreement.
(b) If there be more than one Debtor, all undertakings,
warranties, convenants and agreements made by Debtor
and all rights, powers and authorities given to or
conferred on Bank shall be made or given jointly
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and severally. When used herein, the male gender shall include
the female and neuter, as the case may be and the singular shall
include the plural and vice versa where appropriate.
(c) This Agreement and all rights and liabilities hereunder and in
and to any and all Collateral shall inure to the benefit of Bank
and it successors and assigns, and shall be binding on Debtor
and Debtor's heirs, executors, administrators, successors and
assigns.
(d) This Agreement and the rights and obligations of the parties
hereunder shall be construed and interpreted in accordance with
the law of the State of Missouri.
(e) Debtor expressly agrees that to the extent a payment or
payments to Bank, or any part thereof, are subsequently
invalidated, declared to be void or voidable, set aside and are
required to be repaid to a trustee, custodian, receiver or any
other party under any bankruptcy act, state or federal law,
common law or equitable cause, then to the extent of such payment
or repayment, the obligation or part thereof intended to be
satisfied and any collateral given therefore including this
Agreement shall be revived and continued in full force and effect
as if said payment has not been made.
(f) This Agreement may be executed in any number of counterparts
and by the different parties on separate counterparts and each
such counterpart shall for all purposes be deemed an original,
but all such counterparts shall together constitute but one and
the same Agreement. Debtor hereby acknowledges receipt of a
true, correct and complete counterpart of this Agreement.
(g) The Bank, from time to time, without notice to Debtor, assign
or transfer any or all of its interest in the indebtedness
secured hereby; and, notwithstanding any such assignment or
transfer or any subsequent assignment or transfer thereof, such
indebtedness secured hereby shall be and remain indebtedness
secured hereby for the purposes of this Agreement, and each and
every immediate and successive assignee or transferee of any of
the indebtedness secured hereby or of any interest therein shall,
to the extent of the interest of such assignee or transferee in
the indebtedness secured hereby, be entitled to the benefits of
this Agreement.
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(h) This agreement shall be construed in accordance with
and governed by the internal laws of the State of
Missouri without regard to its principles of conflicts
of law. Whenever possible, each provision of this
agreement shall be interpreted in such manner as to be
effective and valid under applicable law, but if any
provision of this agreement shall be prohibited by or
invalid under such law, such provision shall be
ineffective to the extent of such prohibition or
invalidity, without invalidating the remainder of such
provision or the remaining provisions of this agreement.
All obligations of Debtor, and rights of the Bank shall
be in addition to and not in limitation of those
provided in applicable law or in other written
instrument or agreement relating to any of the
indebtedness or liabilities secured hereby.
(i) At the option of the Bank, this Agreement, or a carbon,
photographic or other reproduction of this Agreement or
of any Uniform Commericial Code financing statement
covering the Collateral or any portion thereof, shall
be sufficient as a Uniform Commercial Code financing
statement and may be filed as such.
(j) The section headings in this Agreement are inserted for
convenience of reference and shall not be considered a
part of this Agreement or used in its interpretation.
(k) Debtor hereby acknowledges that there are no conditions
to the effectiveness of this Agreement.
(l) If any item of Collateral hereunder also constitutes
collateral granted to the Bank under any other
mortgage, deed of trust, agreement or
instrument, in the event of any conflict between the
provisions under this Agreement and those under such
other mortgage, agreement or instrument relating to
such Collateral, the provision or provisions selected
by the Bank shall control with respect to such
Collateral.
IN WITNESS WHEREOF, this Security Agreement has been executed and
delivered by Debtor this 19th day of May, 1994.
XXXXXXXX EQUIPMENT, INC.
By: /s/ Xxxx Xxxxxxxx
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