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EXHIBIT 10.32
CONTINUING SECURITY AGREEMENT:
EQUIPMENT, RIGHTS TO PAYMENT AND INVENTORY
1. GRANT OF SECURITY INTEREST. For valuable consideration, the
undersigned, American Coin Merchandising, Inc., a Delaware corporation
("Debtor"), hereby grants and transfers to XXXXX FARGO BANK (COLORADO),
NATIONAL ASSOCIATION ("Bank") a security interest in all accounts, deposit
accounts, accounts receivable, chattel paper, instruments, documents and
general intangibles (collectively called "Rights to Payment"), now existing or
at any time hereafter, and prior to the termination hereof, arising (whether
they arise from the sale, lease or other disposition of inventory or from
performance of contracts for service, manufacture, construction, repair or
otherwise or from any other source whatsoever), including all securities,
guaranties, warranties, indemnity agreements, insurance policies, franchise
agreements, copyrights, patents, trademarks, service marks and other agreements
pertaining to the same or the property described therein, and in all goods
returned by Debtor's customers, together with a security interest in all
inventory, goods held for sale or lease or to be furnished under contracts for
service, goods so leased or furnished, raw materials, component parts, work in
process or materials used or consumed in Debtor's business and all warehouse
receipts, bills of lading and other documents evidencing goods owned or
acquired by Debtor, and all goods covered thereby, now or at any time
hereafter, and prior to the termination hereof, whether or not delivered by
Debtor to another under any contract for sale or service, in hands of
manufacturers or suppliers or in process of delivery or in hands of any agent
or representative, owned or acquired by Debtor, wherever located, and all
products thereof (collectively called "Inventory"), and all tools, machinery,
including vehicles (whether titled or untitled), furnishings, furniture and
other equipment now or at any time owned or acquired by Debtor, and all
accessions or additions thereto (collectively called "Equipment") whether in
the possession of Debtor, warehousemen, bailees or any other person and whether
located at Debtor's places of business or elsewhere (with all Rights to Payment
Inventory and Equipment referred to herein collectively as the "Collateral"),
together with whatever is receivable or received when any of the Collateral or
proceeds thereof are sold, leased, collected, exchanged or otherwise disposed
of, whether such disposition is voluntary or involuntary, including without
limitation, all Rights to Payment, including returned premiums, with respect to
any insurance relating to any of the foregoing, and all Rights to Payment with
respect to any cause of action affecting or relating to any of the foregoing
(hereinafter called "Proceeds").
2. OBLIGATIONS SECURED. The obligations secured hereby are the
payment and performance of: (a) all present and future Indebtedness of Debtor
to Bank; (b) all obligations of Debtor and rights of Bank under this Agreement;
and (c) all present and future obligations of Debtor to Bank of other kinds.
The word "Indebtedness" is used herein in its most comprehensive sense and
includes any and all advances, debts, obligations and liabilities of Debtor, or
any of them, heretofore, now or hereafter made, incurred or created, whether
voluntary or involuntary and however arising, whether due or not due, absolute
or contingent, liquidated or unliquidated, determined or undetermined, and
whether Debtor may be liable individually or jointly with others, or whether
recovery upon such Indebtedness may be or hereafter becomes unenforceable.
3. TERMINATION. This Agreement will terminate upon the
performance of all obligations of Debtor to Bank, including without limitation,
the payment of all Indebtedness of Debtor to Bank existing or committed by Bank
and the termination of all commitments, credit agreements or other
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obligations of Bank to extend credit to Debtor which exist at the time Bank
receives written notice from Debtor of the termination of this Agreement.
4. OBLIGATIONS OF BANK. Bank has no obligation to make any loans
hereunder. Any money received by Bank in respect of the Collateral may be
deposited, at Bank's option, into a non-interest bearing account over which
Debtor shall have no control, and the same shall, for all purposes, be deemed
Collateral hereunder.
5. REPRESENTATIONS AND WARRANTIES. Debtor represents and
warrants to Bank that: (a) Debtor is the owner and has possession or control
of the Collateral and Proceeds; (b) Debtor has the right to grant a security
interest in the Collateral and Proceeds; (c) all Collateral and Proceeds are
genuine, free from liens, adverse claims, setoffs, default, prepayment,
defenses and conditions precedent of any kind or character, except for the lien
created hereby and as heretofore disclosed to Bank in writing; (d) all
statements contained herein and, where applicable, in the Collateral, including
the amount of any account debtor's obligation, are true and complete in all
material respects; (e) no financing statement covering any of the Collateral or
Proceeds, and naming any secured party other than Bank, is on file in any
public office except as disclosed to the Bank in writing heretofore and as
hereafter consented to by the Bank in writing or as permitted by Section 5.6 of
the Credit Agreement between Debtor and Bank of even date herewith ("Credit
Agreement"); (f) all persons appearing to be obligated on Rights to Payment and
Proceeds have authority and capacity to contract and are bound as they appear
to be; (g) all property subject to chattel paper has been properly registered
and filed in compliance with law and to perfect the interest of Debtor in such
property; and (h) all Rights to Payment and Proceeds comply with all applicable
laws concerning form, content and manner of preparation and execution,
including, where applicable Federal Reserve Regulation Z and any State consumer
credit laws.
6. COVENANTS OF DEBTOR.
(a) Debtor Agrees in General: (i) to pay Indebtedness
secured hereby when due; (ii) to indemnify Bank against all losses, claims,
demands, liabilities and expenses of every kind caused by property subject
hereto; (iii) to pay all costs and expenses, including reasonable attorneys'
fees, incurred by Bank in the perfection, preservation, realization, of the
collateral or its interest in the collateral and/or the enforcement and
exercise of its rights, powers and remedies hereunder so long as the Bank
prevails in any of its claims or defenses; (iv) to permit Bank to exercise its
powers; (v) to execute and deliver such documents as Bank deems necessary to
create, perfect and continue the security interests contemplated hereby; and
(vi) not to change its chief place of business or the places where Debtor keeps
any of the Collateral or Debtor's records concerning the Collateral and
Proceeds without first giving Bank written notice of the address to which
Debtor is moving same.
(b) Debtor Agrees with Regard to the Collateral and
Proceeds: (i) to insure Inventory and, where applicable, Rights to Payment
with Bank as loss payee, in form and amounts, under agreements, against risks
and liabilities, and with insurance companies satisfactory to Bank and which
require notification to the Bank ten (10) days prior to cancellation; (ii) not
to use any Inventory for any unlawful purpose or in any way that would void any
insurance required to be carried in connection therewith; (iii) not to remove
Inventory from Debtor's premises without Bank's prior written consent and upon
such terms and conditions as Bank may require, except for sales in the ordinary
course of Debtor's business and except Inventory which consists of mobile goods
as defined in the Colorado Uniform Commercial Code, in which case Debtor agrees
not to remove or permit the removal of the Inventory from its state of domicile
for a period in excess of thirty (30) calendar days; (iv) not to permit any
lien on the
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Collateral or Proceeds, including without limitation, liens arising from the
storage of Inventory, except in favor of Bank or as permitted under Sections
5.3 and 5.6 of the Credit Agreement; (v) not to sell, hypothecate or dispose of
any of the Collateral or Proceeds, or any interest therein, except sales of
Inventory to buyers in the ordinary course of Debtor's business, without Bank's
prior written consent; (vi) to furnish reports to Bank of all acquisitions,
returns, sales and other dispositions of Inventory in such form and detail and
at such times as Bank may require; (vii) to permit Bank to inspect the
Collateral at any time; (viii) to keep, in accordance with generally accepted
accounting principles, complete and accurate records regarding all Collateral
and Proceeds, and to permit Bank to inspect the same and make copies thereof at
any reasonable time; (ix) if requested by Bank, to receive and use reasonable
diligence to collect Rights to Payment and Proceeds, in trust and as the
property of Bank, and to immediately endorse as appropriate and deliver such
Rights to Payment and Proceeds to Bank daily in the exact form in which they
are received together with a collection report in form satisfactory to Bank;
(x) not to commingle Rights to Payment, Proceeds or collections thereunder with
other property; (xi) to give only normal allowances and credits and to advise
Bank thereof immediately in writing if individually or collectively they affect
any Rights to Payment or Proceeds in any material respect; (xii) on demand, to
deliver to Bank returned property resulting from, or payment equal to, such
allowances or credits on any Rights to Payment or Proceeds or to execute such
documents and do such other things as Bank may reasonably request for the
purpose of perfecting, preserving and enforcing its security interest in such
returned property; (xiii) from time to time, when requested by Bank, and
without respect to whether or not a default has occurred or is continuing, to
prepare and deliver a schedule of all Collateral and Proceeds subject to this
Agreement, to assign in writing and deliver to Bank all accounts, contracts,
leases and other chattel paper, instruments, documents and other evidences
thereof to xxxx or stamp each of its individual ledger sheets or cards
pertaining to Accounts with the legend "For value received, this Account has
been assigned to Xxxxx Fargo Bank," and to give such written notice to Account
Debtors as Bank shall require; (xiv) in the event Bank elects to receive
payments of Rights to Payment or Proceeds hereunder, to pay all expenses
incurred by Bank in connection therewith, including expenses of accounting,
correspondence, collection efforts, reporting to account or contract debtors,
filing, recording, record keeping and expenses incidental thereto; and (xv) to
provide any service and do any other acts which may be necessary to maintain,
preserve and protect all Collateral and, as appropriate and applicable, to keep
all Collateral in good and saleable condition, to deal with the Collateral in
accordance with the standards and practices adhered to generally by users and
manufacturers of like property, and to keep all Collateral and Proceeds free
and clear of all defenses, rights of offset and counterclaims.
7. POWERS OF BANK. Debtor appoints Bank its true attorney in
fact to perform any of the following powers, which are coupled with an
interest, are irrevocable until termination of this Agreement and may be
exercised from time to time by Bank's officers and employees, or any of them,
whether or not Debtor is in default: (a) to perform any obligation of Debtor
hereunder in Debtor's name or otherwise; (b) to give notice of Bank's rights in
the Collateral and Proceeds to account debtors or others, to enforce the same
and make extension agreements with respect thereto; (c) to release persons
liable on Collateral or Proceeds and to give receipts and acquittances and
compromise disputes in connection therewith; (d) to release security; (e) to
resort to security in any order; (f) to prepare, execute, file, record or
deliver notes, assignments, schedules, designation statements, financing
statements, continuation statements, termination statements, statements of
assignment, applications for registration or like papers to perfect, preserve
or release Bank's interest in the Collateral and Proceeds; (g) to receive, open
and read mail addressed to Debtor; (h) to take cash, instruments for the
payment of money and other property to which Bank is entitled; (i) to verify
facts concerning the Collateral and Proceeds by inquiry of obligors thereon, or
otherwise; (j) to endorse, collect, deliver and receive payment under
instruments for the payment of money constituting or relating to Proceeds; (k)
to prepare, adjust, execute, deliver and receive payment under
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insurance claims, and to collect and receive payment of and endorse any
instrument in payment of loss or returned premiums or any other insurance
refund or return, and to apply such amounts received by Bank, at Bank's sole
option, toward repayment of the Indebtedness or replacement of the Collateral;
(l) to exercise all rights, powers and remedies which Debtor would have, but
for this Agreement, with respect to all Collateral and Proceeds subject hereto;
(m) to enter onto Debtor's premises in inspecting the Collateral; (n) to make
withdrawals from and to close deposit accounts or other accounts with any
financial institution, wherever located, into which Proceeds may have been
deposited, and to apply funds so withdrawn to payment of the Indebtedness; (o)
to preserve or release the interest evidenced by chattel paper to which Bank is
entitled hereunder and to endorse and deliver evidences of title incidental
thereto; and (p) to do all acts and things and execute all documents in the
name of Debtor or otherwise, deemed by Bank as necessary, proper and convenient
in connection with the preservation, perfection or enforcement of its rights
hereunder.
8. PAYMENT OF PREMIUMS, TAXES, CHARGES, LIENS AND ASSESSMENTS.
Subject to its right to contest or dispute taxes that may exist in other
documents relates to the indebtedness, Debtor agrees to pay, prior to
delinquency, all insurance premiums, taxes, charges, liens and assessments
against the Collateral and Proceeds, and upon the failure of Debtor to do so,
Bank 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.
Any such payments made by Bank shall be obligations of Debtor to Bank, due and
payable immediately upon demand, together with interest at a rate determined in
accordance with the provisions of Section 12 hereof, and shall be secured by
the Collateral and Proceeds, subject to all terms and conditions of this
Agreement.
9. EVENTS OF DEFAULT. The occurrence of any of the following
shall constitute an "Event of Default" under this Agreement: (a) any default
in the payment or performance, subject to any applicable cure period, of any
obligation, or any defined event of default, under (i) any contract or
instrument evidencing any Indebtedness, or (ii) any other agreement between any
Debtor and Bank, including without limitation any loan agreement, relating to
or executed in connection with any Indebtedness; (b) any representation or
warranty made by any Debtor herein shall prove to be incorrect, false or
misleading in any material respect when made; (c) any Debtor shall fail to
observe or perform, subject to any applicable cure period, any obligation or
agreement contained herein; (d) any attachment or like levy on any property of
any Debtor; and (e) Bank, in good faith, believes any or all of the Collateral
and/or Proceeds to be in danger of misuse, dissipation, commingling, loss,
theft, damage or destruction, or otherwise in jeopardy or unsatisfactory in
character or value.
10. REMEDIES. Upon the occurrence of any Event of Default, Bank
shall have the right to declare immediately due and payable all or any
Indebtedness secured hereby and to terminate any commitments to make loans or
otherwise extend credit to Debtor. Bank shall have all other rights, powers,
privileges and remedies granted to a secured party upon default under the
Colorado Uniform Commercial Code or otherwise provided by law, including
without limitation, the right to contact all persons obligated to Debtor on any
Collateral or Proceeds and to instruct such persons to deliver all Collateral
and/or Proceeds directly to Bank. All rights, powers, privileges and remedies
of Bank shall be cumulative. No delay, failure or discontinuance of Bank in
exercising any right, power, privilege or remedy hereunder shall affect or
operate as a waiver of such right, power, privilege or remedy; nor shall any
single or partial exercise of any such right, power, privilege or remedy
preclude, waive or otherwise affect any other or further exercise thereof or
the exercise of any other right, power, privilege or remedy. Any waiver,
permit, consent or approval of any kind by Bank of any default hereunder, or
any such waiver of any provisions or conditions hereof, must be in writing and
shall be effective only to the extent set forth in writing. It is
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agreed that public or private sales, for cash or on credit, to a wholesaler or
retailer or investor, or user of property of the types subject to this
Agreement, or public auction, are all commercially reasonable since differences
in the sales prices generally realized in the different kinds of sales are
ordinarily offset by the differences in the costs and credit risks of such
sales. While an Event of Default exists: (a) Debtor will deliver to Bank from
time to time, as requested by Bank, current lists of all Collateral and
Proceeds; (b) Debtor will not dispose of any of the Collateral or Proceeds
except on terms approved by Bank; (c) at Bank's request, Debtor will assemble
and deliver all Collateral and Proceeds, and books and records pertaining
thereto, to Bank at a reasonably convenient place designated by Bank; and (d)
Bank may, without notice to Debtor, enter onto Debtor's premises and take
possession of the Collateral. With respect to any sale by Bank of any
Collateral subject to this Agreement, Debtor hereby expressly grants to Bank
the right to sell such Collateral using any or all of Debtor's trademarks,
trade names, trade name rights and/or proprietary labels or marks.
11. DISPOSITION OF COLLATERAL AND PROCEEDS. Upon the transfer of
all or any part of the Indebtedness, Bank may transfer all or any part of the
Collateral or Proceeds and shall be fully discharged thereafter from all
liability and responsibility with respect to any of the foregoing so
transferred, and the transferee shall be vested with all rights and powers of
Bank hereunder with respect to any of the foregoing so transferred; but with
respect to any Collateral or Proceeds not so transferred, Bank shall retain all
rights, powers, privileges and remedies herein given. Any proceeds of any
disposition of any of the Collateral or Proceeds, or any part thereof, may be
applied by Bank to the payment of expenses incurred by Bank in connection with
the foregoing, including reasonable attorneys' fees, and the balance of such
proceeds may be applied by Bank toward the payment of the Indebtedness in such
order of application as Bank may from time to time elect.
12. COSTS, EXPENSES AND ATTORNEYS' FEES. Debtor shall pay to Bank
immediately upon demand the full amount of all payments, advances, charges,
costs and expenses, including reasonable attorneys' fees (to include outside
counsel fees and all allocated costs of Bank's in-house counsel), incurred by
Bank in exercising any right, power, privilege or remedy conferred by this
Agreement so long as the Bank prevails in any of its claims or defenses or in
the enforcement thereof, including any of the foregoing incurred in connection
with any bankruptcy proceeding relating to Debtor or the valuation of the
Collateral and/or Proceeds, including without limitation, the seeking of relief
from or modification of the automatic stay or the negotiation and drafting of a
cash collateral order. All of the foregoing shall be paid by Debtor with
interest at a rate per annum equal to four percentage points (4%) per annum
above the Prime Rate in effect from time to time. The "Prime Rate" is a base
rate that Bank from time to time establishes and which serves as the basis upon
which effective rates of interest are calculated for those loans making
reference thereto, so long as the Bank prevails in any of its claims or
defenses.
13. STATUTE OF LIMITATIONS. Until all Indebtedness shall have
been paid in full, the power of sale and all other rights, powers, privileges
and remedies granted to Bank hereunder shall continue to exist and may be
exercised by Bank at any time and from time to time irrespective of the fact
that the Indebtedness or any part thereof may have become barred by any statute
of limitations, or that the personal liability of Debtor may have ceased,
unless such liability shall have ceased due to the payment in full of all
Indebtedness secured hereunder.
14. MISCELLANEOUS. The obligations of Debtor are joint and
several; presentment, protest, notice of protest, notice of dishonor and notice
of nonpayment are waived with respect to any Proceeds to which Bank is entitled
hereunder; any right to direct the application of payments or
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security for any Indebtedness of Debtor, or indebtedness of customers of
Debtor, and any right to require proceedings against others or to require
exhaustion of security are waived; and consent to extensions, forbearances or
alterations of the terms of Indebtedness, the release or substitution of
security, and the release of guarantors is given with respect to Proceeds
subject to this Agreement Until all Indebtedness shall have been paid in full,
no Debtor shall have any right of subrogation or contribution, and each Debtor
hereby waives any benefit of or right to participate in any of the Collateral
or Proceeds or any other security now or hereafter held by Bank.
15. NOTICES. All notices, requests and demands required under
this Agreement must be in writing, addressed to Bank at the address specified
in any other loan documents entered into between Debtor and Bank and to Debtor
at the address of its chief executive office (or personal residence, if
applicable) specified below or to such other address as any party may designate
by written notice to each other party, and shall be deemed to have been given
or made as follows: (a) if personally delivered, upon delivery; (b) if sent by
mail, upon the earlier of the date of receipt or three (3) days after deposit
in the U.S. mail, first class and postage prepaid; and (c) if sent by telecopy,
upon receipt.
16. GOVERNING LAW; SUCCESSORS, ASSIGNS. This Agreement shall be
governed by and construed in accordance with the laws of the State of Colorado,
and shall be binding upon and inure to the benefit of the heirs, executors,
administrators, legal representatives, successors and assigns of the parties.
17. SEVERABILITY OF PROVISIONS. If any provision of this
Agreement shall be held to be prohibited by or invalid under applicable law,
such provision shall be ineffective only to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or any
remaining provisions of this Agreement.
Debtor warrants that its chief executive office is located at the
following address: 0000 Xxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000.
IN WITNESS WHEREOF, this Agreement has been duly executed as of
September 23, 1996.
DEBTOR:
AMERICAN COIN MERCHANDISING, INC., a
Delaware corporation
By: /s/Xxxxxx X. Xxxxx
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Title: President & CEO
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