EXHIBIT 10.4
MASTER SECURITY AGREEMENT
THIS MASTER SECURITY AGREEMENT, made as of ("AGREEMENT"), by and between
General Electric Capital Corporation, a New York corporation with an address at
00 Xxx Xxxxxxxxx Xxxx, Xxxxxxx, XX ("SECURED PARTY"), and Xxxxxxxxx Mobile
Fueling, Inc., a corporation organized and existing under the laws of the state
of Florida with its chief executive offices located at 0000 X. X. 00xx Xxxxx,
Xxxx Xxxxxxxxxx. XX 33309("DEBTOR")
In consideration of the promises herein contained and of certain other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Debtor and Secured Party hereby agree as follows:
1. CREATION OF SECURITY INTEREST.
Debtor hereby gives, grants and assigns to Secured Party, its successors and
assigns forever, a security interest in and against any and all property listed
on any collateral schedule now or hereafter annexed hereto or made a part hereof
("COLLATERAL Sehedule"), and in and against any and all additions, attachments,
accessories and accessions thereto, any and all substitutions, replacements or
exchanges therefor, and any and all insurance and/or other proceeds thereof (all
of the foregoing being hereinafter individually and collectively referred to as
the "COLLATERAL"). The foregoing security interest is given to secure the
payment and performance of any and all debts, obligations and liabilities of any
kind, nature or description whatsoever (whether primary, secondary, direct,
contingent, sole, joint or several, or otherwise, and whether due or to become
due) of Debtor to Secured Party, now existing or hereafter arising, including
but not limited to the payment and performance of certain Promissory Notes from
time to time identified on any Collateral Schedule (collectively "NOTES" and
each a "NOTE"), and any renewals, extensions and modifications of such debts,
obligations and liabilities (all of the foregoing being hereinafter referred to
as the AINDEBTEDNESS@). Notwithstanding the foregoing, and notwithstanding
anything to the contrary contained elsewhere in this Agreement, to the extent
that Secured Party asserts a purchase money security interest in any items of
Collateral ("PMSI COLLATERAL"): (i) the PMSI Collateral shall secure only that
portion of the Indebtedness which has been advanced by Secured Party to enable
Debtor to purchase, or acquire rights in or the use of such PMSI Collateral (the
"PMSI INDEBTEDNESS"), and (ii) no other Collateral shall secure the PMSI
Indebtedness.
2. REPRESENTATIONS, WARRANTIES AND COVENANTS OF DEBTOR
Debtor hereby represents, warrants and covenants as of the date hereof and as of
the date of execution of each Collateral Schedule hereto that:
(a) Debtor is, and will remain, duly organized, existing and in good standing
under the laws of the State set forth in the first paragraph of this Agreement,
has its chief executive off'ces at the location set forth in such paragraph, and
is, and will remain, duly qualified and licensed in every jurisdiction wherever
necessary to carry on its business and operations;
(b) Debtor has adequate power and capacity to enter into, and to perform its
obligations, under this Agreement, each Note and any other documents evidencing,
or given in connection with, any of the Indebtedness (all of the foregoing being
hereinafter referred to as the "DEBT DOCUMENTS");
(c) This Agreement and the other Debt Documents have been duly authorized,
executed and delivered by Debtor and constitute legal, valid and binding
agreements enforceable under all applicable laws in accordance with their terms,
except to the extent that the enforcement of remedies may be limited under
applicable bankruptcy and insolvency laws;
(d) No approval, consent or withholding of objections is required from any
governmental authority or instrumentality with respect to the entry into, or
performance by, Debtor of any of the Debt Documents, except such as may have
already been obtained;
(e) The entry into, and performance by, Debtor of the Debt Documents will not
(i) violate any of the organizational documents of Debtor or any judgment,
order, law or regulation applicable to Debtor, or (ii) result in any breach of,
constitute a default under, or result in the creation of any lien, claim or
encumbrance on any of Debtor's property (except for liens in favor of Secured
Party) pursuant to, any indenture mortgage, deed of trust, bank loan, credit
agreement, or other agreement or instrument to which Debtor is a party;
(f) There are no suits or proceedings pending or threatened in court or before
any commission, board or other administrative agency against or affecting Debtor
which could, in the aggregate, have a material adverse effect on Debtor, its
business or operations, or its ability to perform its obligations under the Debt
Documents;
(g) All financial statements delivered to Secured Party in connection with the
Indebtedness have been prepared in accordance with generally accepted accounting
principles, and since the date of the most recent finamcial statement, there has
been no material adverse change;
(h) The Collateral is not, amd will not be, used by Debtor for personal,
family or household purposes;
(i) The Collateral is, and will remain, in good condition and repair amd
Debtor will not be negligent in the care and use thereof;
(j) Debtor is, and will remain, the sole and lawful owner, and in possession
of, the Collateral, and has the sole right and lawful authority to grant the
security interest described in this Agreement; and
(k) The Collateral is, and will remain, free and clear of all liens, claims
and encumbrances of every kind, nature and description, except for (i) liens in
favor of Secured Party, (ii) liens for taxes not yet due or for taxes being
contested in good faith and which do not involve, in the reasonable judgment of
Secured Party, any risk of the sale, forfeiture or loss of any of the
Collateral, and (iii) inchoate materialmen's, mechanic's, repairmen's and
similar liens arising by operation of law in the normal course of business for
amounts which are not delinquent (all of such permitted liens being hereinafter
referred to as "PERMITTED LIENS").
3. COLLATERAL.
(a) Until the declaration of any default hereunder, Debtor sha11 remain in
possession of the Collateral; provided, however, that Secured Party shall have
the right to possess (i) any chattel paper or instrument that constitutes a part
of the Collateral, and (ii) any other Collateral which because of its nature may
require that Secured Party's security interest therein be perfected by
possession. Secured Party, its successors and assigns, and their respective
agents, shall have the right to examine and inspect any of the Collateral at any
time during normal business hours. Upon any request from Secured Party, Debtor
shall provide Secured Partv with notice of the then current location of the
Collateral.
(b) Debtor shall (i) use the Collateral only in its trade or business, (ii)
maintain all of the Collateral in good condition and working order, (iii) we and
maintain the Collateral only in compliance with all applicable laws, and (iv)
keep all of the Collateral free and clear of all liens, claims and encumbrances
(except for Permitted Liens).
(c) Debtor shall not, without the prior written consent of Secured Party, (i)
part with possession of any of the Collateral (except to Secured Party or for
maintenance and repair), (ii) remove any of the Collateral from the continental
United States, or (iii) sell, rent, lease, mortgage, grant a security interest
in or otherwise transfer or encumber (except for Permitted Liens) any of the
Collateral.
(d) Debtor shall pay promptly when due all taxes, license fees, assessments
and public and private charges levied or assessed on any of the Collateral, on
the use thereof, or on this Agreement or any of the other Debt Documents. At its
option, Secured Party may discharge taxes, liens, security interests or other
encumbrances at any time levied or placed on the Collateral and may pay for the
maintenance, insurance and preservation of the Collateral or to effect compl
iance with the terms of this Agreement or any of the other Debt Documents.
Debtor shall reimburse Secured Party, on demand, for any and all costs and
expenses incurred by Secured Party in connection therewith and agrees that such
reimbursement obligation shall be secured hereby.
(e) Debtor shall, at all times, keep accurate and complete records of the
Collateral, and Secured Party, its successors and assigns, and their respective
agents, shall have the right to examine, inspect, and make extracts from all of
Debtor's books and records relating to the Collateral at any time during normal
business hours.
(f) If agreed by the parties, Secured Party may, but shall in no event be
obligated to, accept substitutions and exchanges of property for property, and
additions to the property, constituting all or any part of the Collateral. Such
substitutions, exchanges and additions shall be accomplished at any time and
from time to time, by the substitution of a revised Collateral Schedule for the
Collateral Schedule now or hereafter annexed. Any property which may be
substituted, exchanged or added as aforesaid shall constitute a portion of the
Collateral and shall be subject to the security interest granted herein.
Additions to, reductions or exchanges of, or substitutions for, the Collateral,
payments on account of any obligation or liability secured hereby, increases in
the obligations and liabilities secured hereby, or the creation of additional
obligations and liabilities secured hereby, may from time to time be made or
occur without affecting the provisions of this Agreement or the provisions of
any obligation or liability which this Agreement secures.
(g) Any third person at any time and from time to time holding all or any
portion of the Collateral shall be deemed to, and shall, hold the Collateral as
the agent of, and as pledge holder for, Secured Party. At any time and from time
to time, Secured Party may give notice to any third person holding all or any
portion of the Collateral that such third person is holding the Collateral as
the agent of, and as pledge holder for, the Secured Party.
4. INSURANCE.
The Collateral shall at all times be held at Debtor's risk, and Debtor shall
keep it insured against loss or damage by fire and extended coverage perils,
theft, burglary, and for any or all Collateral which are vehicles, for risk of
loss by collision, and where requested by Secured Party, against other risks as
required thereby, for the full replacement value thereof, with companies, in
amounts and under policies acceptable to Secured Party. Debtor shall, if Secured
Party so requires, deliver to Secured Party policies or certificates of
insurance evidencing such coverage. Each policy shall name Secured Party as loss
payee thereunder, shall provide for coverage to Secured Party regardless of the
breach by Debtor of any warranty or representation made therein, shall not be
subject to co-insurance, and shall provide for thirty (30) days written notice
to Secured Party of the cancellation or material modification thereof Debtor
hereby appoints Secured Party as its attorney in fact to make proof of loss,
claim for insurance and adjustments with insurers, and to execute or endorse all
documents, checks or drafts in connection with payments made as a result of any
such insurance policies. Proceeds of insurance shall be applied, at tbe option
of Secured Party, to repair or replace the Collateral or to reduce any of the
Indebtedness secured hereby.
5. REPORTS.
(a) Debtor shall promptly notify Secured Party in the event of (i) any change
in the name of Debtor, (ii) any relocation of its chief executive offtces, (iii)
uny relocation of any OF the Collateral, (iv) any of the Collateral being lost,
stolen, missing, destroyed, materially damaged or wom out, or (v) any lien,
claim or encumbrance attaching or being made against any of the Collateral other
than Permitted Liens.
(b) Debtor agrees to fumish its annual financial statements and such interim
statements as Secured Party may require in form satisfactory to Secured Party.
Any and all financial statements submitted and to be submitted to Secured Party
have and will have been prepared on a basis of generally accepted accounting
principles, and are and will be complete and correct and fairly present Debtor's
financial condition as at the date thereof. Secured Party may at any reasonable
time examine the books and records of Debtor and make copies thereof
6. FURTHER ASSURANCES.
(a) Debtor shall, upon request of Secured Party, fumish to Secured Party such
further information, execute and deliver to Secured Party such documents and
instruments (including, without limitation, Uniform Commercial Code financing
statements) and do such other acts and things, as Secured Party may at any time
reasonably request relating to the perfection or protection of the security
interest created by this Agreement or for the purpose of carrying out the intent
of this Agreement. Without limiting the foregoing, Debtor shall cooperate and do
all acts deemed necessary or advisable by Secured Party to continue in Secured
Party a perfected first security interest in the Collateral, and shall obtain
and fumish to Secured Party any subordinations, releases, landlord, lessor, or
mortgagee waivers, and similar documents as may be from time to time requested
by, and which are in form and substance satisfactory to, Secured Party.
(b) Debtor hereby grants to Secured Party the power to sign Debtor's name and
generally to act on behalf of Debtor to execute and file applications for title,
transfers of title, financing statements, notices of lien and other documents
pertaining to any or all of the Collateral. Debtor shall, if any certificate of
title be required or pemmitted by law for any of the Collateral, obtain such
certificate showing the lien hereof with respect to the Collateral and promptly
deliver same to Secured Party.
(c) Debtor shall indemnify and defend the Secured Party, its successors and
assigns, and their respective directors, officers and employees, from and
against any and all claims, actions and suits (including, without limitation,
related attomeys' fees) of any kind, nature or description whatsoever arising,
directly or indirectly, in connection with any OF the Collateral.
7. EVENTS OF DEFAULT.
Debtor shall be in default under this Agreement and each of the other Debt
Documents upon the occurrence of any of the following AEvent(s) of Default:@
(a) Debtor fails to pay any installment or other amount due or coming due
under any of the Debt Documents within ten (10) days after its due date;
(b) Any attempt by Debtor, without the prior written consent of Secured Party,
to sell, rent, Iease, mortgage, grant a security interest in, or otherwise
transfer or encumber (except for Permitted Liens) any of thc Collateral;
(c) Debtor fails to procure, or maintain in effect at all times, any of the
insurance on the Collateral in accordance with Section 4 of this Agreement;
(d) Debtor breaches any of its other obligations under any of the Debt
Documents and fails to cure the same within thirty (30) days after written
notice thereof;
(e) Any warranty, representation or statement made by Debtor in any of thc
Debt Documents or otherwise in connection with any of the Indebtedness shall be
false or misleading in any material respect;
(f) Any of the Collateral being subjected to, or being threatened with,
attachment, execution, levy, seizure or confiscation in any legal proceeding or
otherwise:
(g) Any default by Debtor under any other agreement between Debtor and Secured
Party;
(h) Any dissolution, termination of existence, merger, consolidation, change
in controlling ownership, insolvency, or business failure of Debtor or any
guarantor or other obligor for any of the Indebtedness (collectively
"Guarantor"), or if Debtor or any Guarantor is a natural person, any death or
incompetency of Debtor or such Guarantor;
(i) The appointment of a receiver for all or of any part of the property of
Debtor or any Guarantor, or any assignment for the benefit of creditors by
Debtor or any Guarantor; or
(j) The filing of a petition by Debtor or any Guarantor under any bankruptcy,
insolvency or similar law, or the filing of any such petition against Debtor or
any Guarantor if the same is not dismissed within thirty (30) days of such
filing.
8. REMEDIES ON DEFAULT.
(a) Upon the occurrence of an Event of Default under this Agreement, the
Secured Party, at its option, may declare any or all of the Indebtedness,
including without limitation the Notes, to be immediately due and payable,
without demand or notice to Debtor or any Guarantor. Thc obligations and
liabilities accelerated thereby shall bear interest (both before and after any
judgment) until paid in full at the lower of eighteen percent (18%) per annum or
the maximum rate not prohibited by applicable law.
(b) Upon such declaration of default, Sccured Party shall have all of the
rights and remedies of a Sccured Party under the Uniform Commercial Code, and
under any other applicable law. Without limiting the foregoing, Sccured Party
shall have thc right to (i) notify any account debtor of Dcbtor or any obligor
on any instrument which constitutes part of the Collateral to make payment to
the Secured Party, (ii) with or without legal process, enter any premises where
the Collateral may be and take possession and/or remove said Collateral from
said premises, (iii) sell the Collateral at public or private sale, in whole or
in part, and have the right to bid and purchase at said sale, and/or (iv) Iease
or otherwise dispose of all or part of thc Collateral, applying proceeds
therefrom to the obligations then in default. If requested by Secured Party,
Debtor shall promptly assemble the Collateral and make it available to Secured
Party at a place to be designated by Secured Party which is reasonably
convenient to both parties. Secured Party may also render any or all of the
Collateral unusable at the Debtor's premises and may dispose of such Collateral
on such premises witbout liability for rent or costs. Any notice which Secured
Party is required to give to Debtor under the Uniform Commercial Code of the
time and place of any public sale or the time after which any private sale or
other intended disposition of thc Collateral is to be made shall be deemed to
constitute reasonable notice if such notice is given to the last known address
of Debtor at least five (5) days prior to such action.
(c) Proceeds from any sale or lease or other disposition shall be applied:
first, to all costs of repossession, storage. and disposition including without
limitation attomeys', appraisers', and auctioneers' fees; second, to discharge
the obligations then in default; third, to discharge any other Indebtedness of
Debtor to Secured Party, whether as obligor, endorsor, guarantor, surety or
indemnitor; fourth, to expenses incurred in paying or settling liens and claims
against the Collateral; and lastly, to Debtor, if there exists any surplus.
Debtor shall remain fully liable for any deficiency.
(d) In the event this Agreement, any Note or any other Debt Documents are
placed in the hands of an attomey for collection of money due or to become due
or to obtain performance of any provision hereof, Debtor agrees to pay all
reasonable attorneys' fees incurred by Secured Party, and further agrees that
payment of such fees is secured hereunder. Debtor and Secured Party agree that
such fees to the extent not in excess of twenty percent (20%) of subject amount
owing after default (if Dcrmitted by law, or such lesser sum as may otherwise be
permitted by law) shall be deemed reasonable.
(e) Secured Party's rights and remedies hereunder or otherwise arising are
cumulative and may be exercised singularly or concurrently. Neither the failure
nor any delay on the part of the Secured Party to exercise any right, power or
privilege hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any nght, power or privilege preclude any other or further
exercise thereof or tne exercise of any other right, power or privilege. Secured
Party shall not be deemed to have waived any of its rights hereunder or under
any other agreement, instrument or paper signed by Debtor unless such waiver be
in writing and signed by Secured Party. A waiver on any one occasion shall not
be construed as a bar to or waiver of any right or remedy on any future
(f) DEBTOR HEREBY UNCONDITIONALLY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY
CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF, DIRECTLY OR INDIRECTLY,
THIS AGREEMENT, ANY OF THE OTHER DEBT DOCUMENTS, ANY OF THE INDEBTEDNESS SECURED
HEREBY, ANY DEALINGS BETWEEN DEBTOR AND SECURED PARTY RELATING TO THE SUBJECT
MATTER OF THIS TRANSACTION OR ANY RELATED TRANSACTIONS, AND/OR THE RELATIONSHIP
THAT IS BEING ESTABLISHED BETWEEN DEBTOR AND SECURED PARTY. THE SCOPE OF THIS
WAIVER IS lNTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE
FILED IN ANY COURT (INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS,
BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS). THIS
WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN
WRITING, AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS,
SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT, ANY OTHER DEBT DOCUMENTS, OR TO
ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THIS TRANSACTION OR ANY RELATED
TRANSACTION. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A
WRITTEN CONSENT TO A TRIAL BY THE COURT.
9. MISCELLANEOUS.
(a) This Agreement, any Note and/or any of the other Debt Documents may be
assigned, in whole or in part, by Secured Party without notice to Debtor, and
Debtor hereby waives any defense, counterclaim or cross-complaint by Debtor
against any assignee, agreeing that Secured Party should be soley responsible
therefor.
(b) All notices to be given in connection with this Agreement should be in
writing, should be addressed to the parties at their respective addresses set
forth hereinabove (unless and until 8 different address may be specified in a
written notice to the other party), and should be deemed given (I) on the date
of receipt if delivered in hand or by facsimile transmission, (ii) on the next
business day after being sent by express mail, and (iii) on the fourth business
day after being sent by regular, registered or certified mail. As used herein,
the term Abusiness day@ shall mean and include any day other than Saturdays,
Sundays or other days on which commercial banks in New York, New York are
required or authorized to be closed
(c) Secured Party may correct patent errors herein and fill in all blanks
herein or in any Collateral Schedule consistent with the agreement of the
parties.
(d) Time is of the essence hereof. This Agreement shall be binding, jointly
and severally, upon all parties described as the ADebtor@ and their respective
heirs, executors, representatives, successors and assigns, and shall inure to
the benefit of Secured Party, its successors and assigns.
(e) This Agreement and its Collateral Schedules constitute the entire
agreement between the parties with respect to the subject matter hereof and
supercede all prior understandings (whether written, verbal or implied) with
respect thereto. This Agreement and its Collateral Schedules shall not be
changed or terminated orally or by course of conduct, but only by a writing
signed by both parties hereto. Section headings contained in this Agreement have
been included for convenience only, and shall not affect the construction or
interpretation hereof
(f) This Agreement shall continue in full force and effect until all of the
Indebtedness has been indefeasibly paid in full to Secured Party. The surrender,
upon payment or otherwise, of any Note or any of the other documents evidencing
any of the Indebtedness shall not affect the right of Secured Party to retain
the Collateral for such other Indebtedness as may then exist or as it may be
reasonably contemplated will exist in the future. This Agreement shall
automatically be reinstated in the event that Secured Party is ever required to
return or restore the payment of all or any portion of the Indebtedness (all as
though in such payment had never been made).
IN WITNESS WHEREOF, Debtor and Secured Party, intending to be legally bound
hereby, have duly executed this Agneement in one or more counterparts, each of
which shall be deemed to be an original, as of the day and year first aforesaid.
SECURED PARTY: DEBTOR:
GENERAL ELECTRIC CAPITAL CORPORATION Xxxxxxxxx Mobile
Fueling, Inc.
By: ________________________________ By: ________________________________
Title: _____________________________ Title: _________________________
