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EXHIBIT 10.102
MASTER SECURITY AGREEMENT
(Wholesale and Fleet Rental Finance)
This Master Security Agreement (this "Agreement") is entered into by and between
Associates Commercial Corporation ("Secured Party") and the party signing below
as debtor ("Debtor"). Debtor and Secured Party agree (hat the security interest
granted herein is limited to Inventory upon which indebtedness or obligation is
owed by Debtor to Secured Party.
1. INVENTORY
1.1 Inventory. Debtor is now or may hereafter be engaged in the business of
selling or renting to Debtor's retail customers the types of property described
in any Supplemental Security Agreement now or hereafter executed by Secured
Party and Debtor relating to this Agreement. The property described on such
Supplemental Security Agreements, together with all attachments exchanges,
replacement parts, repairs and additions to any such property (whether a part of
such property at the time of Debtor's purchase or incorporated in or attached to
such property by Debtor at a later time) is individually referred to in this
Agreement as an "item of Inventory", by classification as a "type of Inventory"
and is collectively referred to in this Agreement as "Inventory."
1.2 Wholesale Inventory. "Wholesale Inventory" is an item of Inventory or type
of Inventory subject to the terms of this Agreement which is (a) acquired or
held by Debtor solely for the purpose of sale and not for the purpose of rental
and/or lease, or (b) acquired by Debtor under the terms of a Special Finance
Plan (as defined below) designating the item or type of Inventory as Wholesale
Inventory. Any item or type of Inventory subject to the terms of this Agreement
and which is not Fleet Rental Inventory (as defined below) will be considered
Wholesale Inventory.
1.3 Fleet Rental Inventory. "Fleet Rental Inventory" is an item of Inventory or
type of Inventory subject to the terms of this Agreement which is (a) designated
by Debtor with the written consent of Secured Party as being acquired or held by
Debtor for the purposes of rental or lease as well as for the purposes of sale,
or (b) acquired by Debtor under the terms of a Special Finance Plan (as defined
below) designating the item or type of Inventory as Fleet Rental Inventory. An
item of Inventory classified as wholesale Inventory may be re-classified as
Fleet Rental Inventory only upon the written consent and agreement of Secured
Party. An item of Wholesale Inventory re-classified as Fleet Rental Inventory
will be considered as reclassified effective as of the first day of the month in
which the written consent and agreement to re-classification is executed or as
otherwise provided in such agreement.
2. ADVANCES AND INTEREST
2.1 Advances. Debtor has requested that Secured Party from time to time make
loans or otherwise extend credit (herein individually referred to as "Advances")
to or on behalf of Debtor, the proceeds of which will be used by Debtor to
acquire one or more items of Inventory or for other legitimate purposes of
Debtor in carrying on the business for which Debtor is acquiring or maintaining
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the Inventory. Debtor agrees and acknowledges that any Advance to or on behalf
of Debtor will be in the sole discretion of Secured Party and that no Advance
made by Secured Party will obligate Secured Party to make any additional
Advance.
2.2 Special Finance Plans. From time to time, a manufacturer or distributor
(herein called "Manufacturer") of one or more items of Inventory may arrange
with Secured Party for Secured Party to offer special finance terms with respect
to Advances made by Secured Party on behalf of Debtor which are used by Debtor
to acquire specified items or types of Inventory from a Manufacturer (herein
called a "Special Finance Plan"). Neither Secured Party nor any Manufacturer
will be obligated in any way to arrange or continue a Special Finance Plan or
offer or continue offering the terms of any Special Finance Plan to Debtor. In
the event a Manufacturer arranges for a Special Finance Plan, Secured Party
offers the Special Finance Plan to Debtor and Debtor accepts the terms of the
Special Finance Plan, Debtor will evidence Debtor's acceptance by executing an
appropriate Special Finance Plan Supplemental Agreement which outlines the terms
of the Special Finance Plan. Secured Party may, in its sole discretion, modify
the terms of a Special Finance Plan with respect to Advances made under the
Special Finance Plan after the date of notice to Debtor and Debtor's acceptance
of Advances after the date of notice will be Debtor's consent to the
modification to the Special Finance Plan. Debtor hereby directs Secured Party to
disburse the proceeds of any Advance made under a Special Finance Plan directly
to the Manufacturer based upon sales invoices presented to Secured Party from
time to time by the Manufacturer which evidence the sale by the Manufacturer to
Debtor of one or more items of Inventory. The Advance to the Manufacturer will
be considered made on the date of the Manufacturer's invoice upon which the
Advance is made regardless of any special funding instructions agreed upon
between Secured Party and Manufacturer.
2.3 Wholesale Inventory/Payment and Interest. Debtor agrees to pay to Secured
Party the unpaid balance of each Advance with respect to an item of Wholesale
Inventory as follows: (a) an Advance which is evidenced by a Supplemental
Security Agreement will be payable as provided in the Supplemental Security
Agreement, (b) an Advance made pursuant to a Special Finance Plan will be
payable as provided in the Special Finance Plan Supplemental Agreement, and (c)
an Advance not subject to a Special Finance Plan or evidenced by a Supplemental
Security Agreement will be payable upon demand.
Debtor agrees to pay Secured Party promptly as billed at the beginning of each
month interest and other charges on the unpaid balance of each Advance from time
to time outstanding with respect to an item of Wholesale Inventory, computed in
accordance with the terms of this section. Interest charges for each item of
Wholesale Inventory for which an Advance was outstanding during the prior month
shall be computed and accrued at the lesser of (a) the Applicable Wholesale Rate
(as defined below) which is in effect on the first business day of the month in
which the interest accrues, or (b) the Maximum Legal Rate (as defined below).
The "Applicable Wholesale Rate" with respect to each Advance is as follows: (a)
the Applicable Wholesale Rate with respect to an Advance evidenced by a
Supplemental Security Agreement will be the rate of interest provided in such
Supplemental Security Agreement, (b) the Applicable Wholesale Rate with respect
to an Advance made pursuant to a Special Finance Plan will be the rate of
interest provided in the Special Finance Plan, and (c) the
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Applicable Wholesale Rate with respect to an Advance not subject to a Special
Finance Plan or evidenced by a Supplemental Security Agreement will be a simple
interest per annum rate equal to the greater of N/A % per annum or the Base Rate
(as defined below).
2.4 Fleet Rental Inventory Payment and Interest. Debtor agrees to pay Secured
Party the unpaid balance of each Advance outstanding with respect to an item of
Fleet Rental Inventory as follows: (a) an Advance which is evidenced by a
Supplemental Security Agreement will be payable as provided in the Supplemental
Security Agreement, (b) an Advance made pursuant to a Special Finance Plan will
be payable as provided in the Special Finance Plan, and (c) an Advance not
subject to a Special Finance Plan or evidenced by a Supplemental Security
Agreement will be payable in monthly installments such that the unpaid balance
will be repaid in full no later than 24 months after the earlier of(a) the date
of Secured Party's Advance with respect to the item of Inventory (whether the
Advance was made based upon a classification of the item of Inventory as
Wholesale Inventory or Fleet Rental Inventory) and (b), if the Advance was made
by Secured Party to enable the Debtor to acquire the item of Inventory from a
manufacturer (whether or not pursuant to a Special Finance Plan), the date of
the manufacturer's invoice to Debtor with respect to the item of Inventory. The
amount of each monthly installment payment will be in amount equal to the
greater of(a) the amount necessary to repay the Advance in full in substantially
equal monthly payments as provided above, and (b) 80% of the Revenues invoiced
by Debtor upon the rental of the item of Inventory during the prior calendar
month.
Debtor agrees to pay Secured Party promptly as billed at the beginning of each
month interest and other charges on the unpaid balance of each Advance from time
to time outstanding with respect to an item of Fleet Rental Inventory, computed
in accordance with the terms of this section. Interest charges for each item of
Fleet Rental Inventory for which an Advance was outstanding during the prior
month shall be computed and accrued at the lesser of (a) the Applicable Fleet
Rental Rate (as defined below) which is in effect on the first business day of
the month in which the interest accrues, or (b) the Maximum Legal Rate (as
defined below). The "Applicable Fleet Rental Rate" with respect to each Advance
is as follows: (a) the Applicable Fleet Rental Rate with respect to an Advance
evidenced by a Supplemental Security Agreement will be the rate of interest
provided in such Supplemental Security Agreement, (b) the Applicable Fleet
Rental Rate with respect to an Advance made pursuant to a Special Finance Plan
will be the rate of interest provided in the Special Finance Plan, and (c) the
Applicable Fleet Rental Rate with respect to an Advance not subject to a Special
Finance Plan or evidenced by a Supplemental Security Agreement will be a simple
interest per annum rate equal to the greater of N/A % per annum the Base Rate
(as defined below).
2.5 Interest Free Periods. If the terms of a Special Finance Plan provide that
interest will not accrue with respect to specified Advances on specified items
or types of Inventory for an initial period of time (the "Interest Free
Period"), so long as Debtor is in compliance with the conditions or restrictions
contained in the Special Finance Plan and is not in default under the terms of
this Agreement, interest will not accrue or be payable on such Advances for the
period from the date of the Advance until the earlier of the date the Advance is
payable to Secured Party or the end of the Interest Free Period. If, however,
Debtor at any time defaults in any obligation to Associates with
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respect to an item of Inventory to which the Advance relates, Debtor will
forfeit Debtor's rights with respect to the Interest Free Period, and interest
will accrue on the related Advance as provided in this Agreement from the date
of such Advance.
2.6 Administrative Charges. Debtor further agrees to pay Secured Party, promptly
as billed, any charge ("Flat Charge") related to each item of Inventory or
Advance which is specified in the Supplemental Security Agreement or under a
Special Finance Plan applicable to such item of Inventory or Advance.
2.7 Calculations of Interest Rate. Wherever used in this Agreement, in any
Supplemental Security Agreement referring to this Agreement or in any Special
Finance Plan Supplemental Agreement, the term "Base Rate" shall mean the Prime
Rate as published from time to time in the Money Rates section of the Wall
Street Journal as the base rate on corporate loans. If more than one Prime Rate
or a range of rates is published, the Prime Rate will be the highest of the
published rates. In the event the Prime Rate as published in the Wall Street
Journal ceases to exist or the Wall Street Journal ceases publishing a Prime
Rate, Associates will substitute a comparable index which is outside the control
of Associates. In the event of an error by the Wall Street Journal, the "Prime
Rate" will be based upon the Prime Rate as corrected. Interest will be computed
at the option of Secured Party on the basis of a 360-day year for the actual
number of days elapsed.
2.8 Maximum Legal Rate. In no event shall the interest rate or other charges
provided in this Agreement or in any Supplemental Security Agreement or Special
Finance Plan exceed the highest rate or charges that Debtor can legally obligate
itself to pay or Secured Party can legally collect (the "Maximum Legal Rate").
If at any time the implementation if any provision of this Agreement would
function to raise the interest rate or other charges of Secured Party above the
Maximum Legal Rate, if any, in effect from time to time in the jurisdiction
whose laws govern this Agreement, including ally applicable Federal laws, for
loans to borrowers of the type, in the amount, for the purposes, and otherwise
of the kind contemplated in this Agreement, then the interest rate or other
charges will be limited to the Maximum Legal Rate and any excess interest or
charges inadvertently collected will be deemed a partial prepayment of the
principal portion of the Advances and applied or reapplied by Secured Party
accordingly.
2.9 Statement of Account. Secured Party will furnish to Debtor from time to time
on a monthly or other periodic basis a statement of Debtor's account with
Secured Party, prepared from Secured Party's records showing all applicable
credits and debits, including all Advances, other charges and payments with
respect to each item of Inventory against which an Advance has been made
pursuant to this Agreement (any error in the identification of one or more items
of Inventory on such statement will not prejudice Secured Party's security
interest in such item). Each such statement will be considered true and correct
and to have been accepted by Debtor and will be conclusively binding on Debtor
with respect to all matters contained therein, unless Debtor notifies Secured
Party in writing of any discrepancy or exception within 30 days of the date of
the mailing by Secured Party to Debtor of any such statement. All payments will
be applied, at Secured Party's option, to accrued changes and interest and then
to principal.
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2.10 Miscellaneous Payment Provisions. Debtor's obligation to pay Secured Party
the entire amount of each Advance will be absolute and unconditional
notwithstanding any contrary agreement, modification or substitution with any
Manufacturer. All amounts payable pursuant to this Agreement are payable at
Secured Party's address set forth below or at such other address as Secured
Party may specify from time to time in writing. After the maturity of any such
payment or upon the acceleration of all indebtedness under this Agreement,
Debtor agrees to pay interest thereon at the rate of 1 1/2% per month if not
prohibited by law, otherwise at the highest rate permitted by applicable law.
Any instrument or agreement which is executed by Debtor and specifies an amount
payable will evidence indebtedness and not payment.
3. SECURITY INTEREST
3.1 Security Interest. To secure payment of all Advances which Secured Party may
elect to make pursuant to this Agreement from time to time, Debtor hereby grants
to Secured Party a security interest in all of the Collateral as described and
defined in any Supplemental Security Agreement executed by Debtor and Secured
Party in connection with this Agreement from time to time (collectively herein
called "Collateral"). Debtor agrees that at any time and from time to time, upon
the request of Secured Party, Debtor will promptly (a) deliver to Secured Party
all Collateral other than Inventory, (b) xxxx all chattel paper, documents and
instruments and debtor's books of account, ledger cards and other records
relative to the Collateral with a notation satisfactory to Secured Party
disclosing that they are subject to Secured Party's security interest, (c)
execute and deliver to Secured Party such instruments, Uniform Commercial Code
financing statements, statements and agreements as Secured Party may request to
further evidence each Advance and the security interests granted under this
Agreement, provided, however, Debtor's failure to comply with such request shall
not affect or limit Secured Party's security interest or other rights in and to
the Collateral, and (d) permit Secured Party or its representatives to examine
the Collateral and Debtor's books and records at any and all reasonable times.
Debtor shall pay all expenses and costs of any nature whatsoever incurred by
Secured Party in connection with any Advances made pursuant hereto, including,
but not limited to, all filing fees and recording costs, and stamp taxes
actually incurred.
4. SALE AND LEASE OF INVENTORY
4.1 Location. The Collateral shall be kept at Debtor's place of business at the
address set forth below Debtor's signature or at one of the following places of
business of Debtor except when the Collateral is being leased or demonstrated
pursuant to the provisions of this Agreement: Dallas, TX; Houston, TX; Corpus
Christi, TX; Beaumont, TX; San Antonio, TX: Austin, TX; Tulsa, OK; Oklahoma
City, OK; Van Wert, Ohio
4.2 Lease of Fleet Rental Inventory. So long as Debtor is not in default under
this Agreement, Debtor may lease any item of Fleet Rental Inventory to retail
customers in the normal course of Debtor's business in accordance with the
following terms and conditions: (a) each lease agreement (herein called a
"Lease") relating to one or more items of Fleet Rental Inventory shall: (i) be
in a
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form approved by Secured Party and be in conformity with all applicable
governmental laws and regulations, (ii) provide that any assignee of the lessor
shall not be obligated to perform or fulfill any of lessor's obligations
thereunder, including, without limitation, any obligation to furnish
maintenance, repairs, or services or to provide insurance, (iii) contain a
waiver by the lessee thereunder of all rights to any set-off, abatement,
defense, counterclaim or cross-claim against an assignee of the lessor, (iv) be
the only agreement (other than this Agreement) then covering the items of
Inventory being leased thereunder, (v) be the entire agreement between Debtor
and the lessee thereunder relating to the items of Inventory being leased
thereunder, (vi) not contain any purchase or renewal options or grant any rights
to the lessee thereunder or any other third parties in or to any Fleet Rental
Inventory, except as approved in writing by Secured Party, and (vii) otherwise
conform to such requirements as Secured Party may specify from time to time; (b)
Debtor will comply with all of its warranties and other obligations under the
Lease; and (c) Debtor will report in writing to Secured Party each month (or at
such other times as Secured Party may request) the location of the Inventory,
the name and address of each lessee, the Revenues billed during such period and
such other information as Secured Party may request. Neither the leasing of any
Inventory nor any Lease shall relieve Debtor of any of its obligations to
Secured Party under this Agreement, and the assignment of and security interest
granted in the Documents shall not be construed as authorizing Debtor to do
anything with the Inventory other than to lease the same in accordance with the
provisions hereof. Debtor agrees that Secured Party does not, by this Agreement
or otherwise, assume any of the obligations of Debtor under the Lease or other
Documents. Debtor hereby grants to Secured Party the right (in debtor's name or
otherwise, and without affecting Debtor's obligations to Secured Party) to
demand, receive, compromise extend the time of payment of, or give a discharge
for, any and all Revenues, to endorse any checks or other instruments or orders
in connection with the Revenues and to file any claims or take such actions or
institute such proceedings as Secured Party may deem necessary or desirable to
protect Secured Party's interests. Debtor shall have no authority to, and will
not, without Secured Party's prior written consent, accept collections,
repossess, substitute or consent to the return of the Inventory or modify the
terms of the Documents, provided, however, until Secured Party notifies Debtor
to the contrary, Debtor may collect the rents and monies owing under the
Documents as the same become due but not otherwise. Debtor agrees, upon request
of Secured Party, to notify the lessees and all other obligors under the
Documents of the interest of Secured Party and to direct the lessees and all
other obligors under the Documents to pay all Revenues directly to Secured
Party. Debtor agrees to promptly render monthly xxxxxxxx to all lessees of the
Inventory.
4.3 Sale of Inventory. So long as Debtor is not in default under this Agreement,
Debtor may sell any item of Inventory in the regular course of Debtor's business
for a price not less than the amount of the Advance applicable thereto except as
otherwise agreed to in writing by Secured Party. All sales of Inventory shall be
for cash or upon such terms and conditions as Secured Party may approve in
writing. Upon the sale of any item of Inventory (with or without the consent of
Secured Party) the amount of the Advance applicable thereto shall become
immediately due and payable and Debtor shall immediately pay such amount in cash
to Secured Party without notice or demand. All Collateral resulting from such
sale shall be held by Debtor in trust for Secured Party, separated from all
other funds and assets of Debtor.
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5. REPRESENTATIONS AND WARRANTIES
5.1 Representations and Warranties. Debtor warrants and agrees that: the
execution of and performance by Debtor under the terms of this Agreement has
been approved for Debtor by all necessary action and by Debtor's partners or
board of directors, as applicable; the Inventory is currently and will continue
be maintained in good operating condition, repair and appearance and is
currently and will continue be used and operated with care only by qualified
personnel in the regular course of Debtor's business and in conformity with all
applicable governmental laws and regulations, manufacturer's specifications and
the restrictions contained in any insurance policy insuring the Inventory; the
Inventory is not currently and will not be used in conjunction with the storage,
transportation or disposal of substances considered to be toxic or hazardous or
in conjunction with any activity or for any use that would subject the Inventory
to seizure or confiscation by any governmental body; and the Inventory is
currently located at and will be kept by Debtor at the location set forth in
this Agreement and will not be removed from said location without the prior
written consent of Secured Party. Secured Party shall have the right to inspect
the Inventory at all reasonable times and from time to time.
Debtor further warrants and agrees that: the security interest in the Collateral
granted to or retained by Secured Party is and will continue to be superior to
any title to or interest in the Inventory now or hereafter held or claimed by
any other party; the Collateral is free from and will be kept free from all
liens, claims, security interests and encumbrances (whether superior or inferior
to the interests of Secured Party) other than that created by this Agreement;
notwithstanding Secured Party's interest in proceeds, Debtor will not and will
not allow any other party to consign, sell, rent, lend, encumber, pledge,
transfer, secrete or otherwise dispose of any of the Collateral other than as
authorized in this Agreement without Secured Party's prior written consent;
Debtor will do everything Secured Party deems necessary or expedient to perfect
or preserve the interests granted to Secured Party under this Agreement and the
first priority of such interests; any Manufacturer's Statement or Certificate of
Origin or Certificate of Title relating to the Inventory shall be immediately
delivered to Secured Party and, if a Certificate of Title or registration is
required to be issued for any item of Inventory, Debtor will cooperate with
Secured Party in obtaining the Certificate of Title or registration disclosing
the interests of Debtor and Secured Party in the Inventory; Debtor will defend
any action, proceeding or claim affecting the Collateral or the interests of
Secured Party in the Collateral; Debtor shall promptly pay all amounts payable
in conjunction with the storage, maintenance or repair of the Inventory and all
taxes, assessments, license fees and other public or private charges levied or
assessed in conjunction with the ownership, operation or use of the Inventory or
levied or assessed against the Collateral, this Agreement or any accompanying
note except for those which are being contested by Debtor in good faith by
appropriate proceedings and which do not constitute a lien or encumbrance upon
the Collateral; and Debtor will from time to time furnish Secured Party with
such financial statements and other information as Secured Party may reasonably
request.
5.2 Insurance and Risk of Loss. Debtor will at all times bear all risk of loss
of, damage to or destruction of the Inventory. Debtor agrees to immediately
procure and maintain insurance on the Inventory for the full insurable value
thereof and for the life of this Agreement, in the form of "All
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Risk" or similar insurance (insuring the Inventory for fire, extended coverage,
vandalism, theft and collision and containing only those exclusions from
coverage which are acceptable to Secured Party) plus such other insurance as
Secured Party may specify from time to time, all in form and amount and with
insurers satisfactory to Secured Party. Debtor agrees to deliver promptly to
Secured Party certificates or, if requested, policies of insurance satisfactory
to Secured Party, each with a standard long-form loss-payable endorsement naming
Secured Party or assigns as loss-payee and providing that Secured Party's rights
under such policy will not be invalidated by any act, omission or neglect of
anyone other than Secured Party, and containing the insurers agreement to give
30 days prior written notice to Secured Party before any cancellation of or
material change in the policy(s) will be effective as to Secured Party, whether
such cancellation or change is at the direction of Debtor or insurer. Secured
Party's acceptance of policies in lesser amounts or risks will not be a waiver
of Debtor's obligation to procure insurance complying with the provisions hereof
promptly after notice from Secured Party. Debtor assigns to Secured Party all
proceeds of any physical damage or credit insurance which is maintained by
Debtor in accordance herewith, including returned and unearned premiums, up to
the amount owing hereunder by Debtor. Debtor directs all insurers to pay such
proceeds solely to the order of Secured Party for application to Debtor's
indebtedness to Secured Party. Secured Party may, at its option, apply any such
proceeds received by Secured Party to the final maturing installments due
hereunder in the inverse order of their maturity.
5.3 Performance by Secured Party, If Debtor fails to perform any of Debtor's
obligations pursuant to Paragraphs 1 or 2 above, Secured Party may perform the
same for the account of Debtor. Any such action by Secured Party will be in
Secured Party's sole discretion and Secured Party will not be obligated in any
way to do so. Secured Party's performance on behalf of Debtor will not obligate
Secured Party to perform the same or any similar act in the future and will not
cure or waive Debtor's failure of performance as an event of default hereunder.
All sums advanced or costs and expenses incurred by Secured Party pursuant to
this Paragraph, including the reasonable fees of any attorney retained by
Secured Party, will be for the account of Debtor, will constitute indebtedness
secured by Secured Party's security interest in the Collateral, will bear
interest at the rate as specified on the reverse side of this Agreement in the
event of acceleration and, unless Secured Party, in Secured Party's sole
discretion agrees otherwise in writing, shall be immediately due and payable.
6. DEFAULT
6.1 Events of Default. Time is of the essence. An event of default will occur
if: (a) Debtor fails to pay when due any amount owed by it to Secured Party
under this Agreement or under the terms of any promissory note delivered in
conjunction with this Agreement or if Debtor fails to pay when due any amount
owed by it to Secured Party or to any affiliate of Secured Party under any other
document, agreement or instrument; (b) Debtor fails to perform in compliance
with any of its agreements hereunder or any warranty made by Debtor in this
Agreement is or becomes incorrect or if Debtor fails to perform or observe any
term or provision to be performed or observed by it under any other document,
instrument or agreement furnished by Debtor to Secured Party or any affiliate of
Secured Party or otherwise acquired by Secured Party or any affiliate of Secured
Party; (c) any
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information, representation, or warranty furnished by Debtor to Secured Party or
to any affiliate of Secured Party is inaccurate or incorrect in any material
respect when furnished; (d) Debtor becomes insolvent or ceases to do or is
prohibited by any court order or govern mental action from conducting the
business in which Debtor is principally engaged on the date of this Agreement as
a going concern; (e) any surety or bonding company assumes any of Debtor's
responsibilities under any contract or job; (f) if any of the Inventory is lost,
stolen, destroyed, confiscated by any governmental agency, abandoned, or
relocated, used or maintained in violation of the terms hereof or if Debtor
attempts to consign, sell, rent, lend or encumber any of the Inventory or allows
another to do so; (g) Debtor files a petition in bankruptcy, or for an
arrangement, reorganization, or similar relief, or makes an assignment for the
benefit of creditors, or applies for the appointment of a receiver or trustee
for a substantial part of its assets or for any of the Inventory, or attempt to
take advantage of any process or proceeding for the relief of debtors, or if any
such action is taken against Debtor; (h) any other party attempts to attach,
repossess or execute upon any of the Collateral; (i) Debtor ceases to exist as a
legal entity or Debtor or any party in control of Debtor takes any action
looking to Debtor's dissolution as a legal entity; (1) there shall be a material
change in the management, ownership or control of Debtor; or (k) Secured Party
in good faith believes that the prospect of payment or performance hereunder is
impaired. Secured Party's inaction with respect to an event of default shall not
be a waiver of such default and Secured Party's waiver of any default shall not
be a waiver of any other default.
6.2 Remedies Upon Default. Upon the occurrence of an event of default, and at
any time thereafter as long as the default continues, Secured Party may, at its
option, with or without notice to Debtor (i) declare this Agreement to be in
default, (ii) declare the indebtedness hereunder to be immediately due and
payable, (iii) declare all other debts then owing by Debtor to Secured Party to
be immediately due and payable, (iv) cancel any insurance and credit any refund
to the indebtedness, and (v) exercise all of the rights and remedies of a
Secured Party under the Uniform Commercial Code and any other applicable laws,
including, without limitation, the right to require Debtor to assemble the
Inventory and deliver it to Secured Party at a place to be designated by Secured
Party which is reasonably convenient to both parties and to lawfully enter any
premises where the Collateral may be without judicial process and take
possession thereof. Acceleration of any or all indebtedness, if so elected by
Secured Party, shall be subject to all applicable laws including those
pertaining to refunds and rebates of unearned charges. Any property other than
the Collateral which is in or upon the Collateral at the time of repossession
may be taken and held without liability until its return is requested by Debtor.
Any sale or other disposition of any of the Collateral may be made at public or
private sale or through public auction for a wholesale or retail price at the
option of Secured Party. Secured Party may buy at any sale and become the owner
of the Collateral. Unless otherwise provided by law, any requirement of
reasonable notice which Secured Party may be obligated to give regarding the
sale or other disposition of Collateral will be met if such notice is mailed to
Debtor at its address shown herein at least ten days before the time of sale or
other disposition. Debtor agrees that Secured Party may bring any legal
proceedings it deems necessary to enforce the payment and performance of
Debtor's obligations hereunder in any court in the State shown in Secured
Party's address set forth herein, and service of process may be made upon Debtor
by mailing a copy of the summons to Debtor at its address shown herein. The
filing by Secured Party of any action or
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proceeding with respect to the Collateral or any of Debtor's obligations
hereunder shall not constitute an election by Secured Party of Secured Party's
remedies or a waiver of Secured Party's rights to take possession of the
Collateral as provided above. Expenses of retaking, holding, preparing for sale,
selling and the like shall include (a) the reasonable fees of any attorneys
retained by Secured Party, (b) any amounts advanced or expenses incurred by
Secured Party pursuant to Paragraph 3 hereof and (c) all other legal and other
expenses incurred by Secured Party. Debtor agrees that it is liable for and will
promptly pay any deficiency remaining after any disposition of Collateral after
default and all costs and expenses, including the reasonable fees of any
attorney, incurred by Secured Party in the collection of any such deficiency.
7. ADDITIONAL PROVISIONS
7.1 Power of Attorney. Debtor hereby appoints Secured Party or any duly
authorized officer or employee of Secured Party as Debtor's attorney-in-fact to,
in Debtor's or Secured Party's name: (a) prepare, execute and submit any notice
or proof of loss in order to realize the benefits of any insurance policy
insuring the Collateral; (b) prepare, execute and file any instrument which. in
Secured Party's opinion, is required by law to perfect and give or modify public
notice of Secured Party's interest in the Collateral; and (c) endorse Debtor's
name on any remittance representing proceeds of any insurance insuring the
Collateral or the proceeds of the sale, or other disposition of any of the
Collateral (whether or not such disposition is a default hereunder). This power
is coupled with an interest and is irrevocable so long as any indebtedness
secured hereunder remains unpaid.
7.2 Assignment. Debtor shall not assign this Agreement without the prior written
consent of Secured Party. Secured Party may assign this Agreement with or
without notice to or the consent of Debtor. Upon assignment, the term "Secured
Party" shall mean and refer to any assignee who is the holder of this Agreement.
After assignment of this Agreement by Secured Party, the assignor will not be
the assignee's agent for any purpose and Debtor's obligations to the assignee
will be absolute and unconditional and, to the extent permitted by applicable
law, will not be subject to any abatement, reduction, recoupment, defense,
set-off or counterclaim available to Debtor for breach of warranty or for any
other reason whatsoever. Upon full payment of all obligations secured by this
Agreement, the assignee may deliver all original papers to the assignor for
Debtor.
7.3 Miscellaneous. (A) All of Secured Party's rights hereunder are cumulative
and not alternative. (B) The inclusion of a trade name or division name in the
identification of Debtor hereunder does not limit Secured Party's rights, after
the occurrence of an event of default, to proceed against all of Debtor's
assets, including those held or used by Debtor individually or under another
trade or division name. (C) If permitted by law, Debtor agrees that a carbon,
photographic or other reproduction of this Agreement or of a financing statement
may be filed as a financing statement. (D) Secured Party may correct patent
errors herein and fill in blanks. (E) All of the terms and provisions hereof
will apply to and be binding upon Debtor, its heirs, personal representatives,
successors and assigns and shall inure to the benefit of Secured Party, its
successors and assigns. (F) Debtor and Secured Party hereby waive any right to
trial by jury in any action or proceeding relating to this Agreement or the
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transaction contemplated hereby. (G) Debtor hereby expressly waives notice of
nonpayment, presentment, protest, dishonor, default, intent to accelerate the
maturity hereof and of acceleration of the maturity hereof. (H) Deleted (I) To
the extent allowed by law, Debtor hereby waives any exemptions or appraisals.
(J) No waiver or change in this Agreement or in any related note will be binding
upon Secured Party, or Secured Party's assignee, unless such waiver or change is
in writing and signed by one of its officers and any such waiver or change shall
then be effective only upon the terms and to the extent provided in such
writing. (K) The acceptance by Secured Party of any remittance from a party
other than Debtor will in no way constitute Secured Party's consent to the
transfer of any of the Collateral to such party. (L) Any captions or headings
included in this Agreement are for convenience of reference only and shall not
limit or otherwise affect the meaning of any provision contained in this
Agreement. (M) Any provision contained herein which is contrary to, prohibited
by or invalid under applicable laws or regulations will be deemed inapplicable
and omitted herefrom, but shall not invalidate the remaining provisions hereof
(N) The only copy of this Agreement which constitutes "chattel paper" is the
original executed copy designated as "Original For Associates".
8. GOVERNING LAW
8.1 Governing Law. This Agreement shall in all respects be governed by, and
construed in accordance with, the laws of the State of Texas including all
matters of construction, validity and performance. No oral agreement, guaranty,
promise. representation or warranty shall be binding upon Secured Party.
Dated: January 5, 1999
Crescent Machinery Company
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Schedule A
(Inventory Description)
This Schedule A (Description of Inventory) is attached to and made a part of
that certain Master Security Agreement (Wholesale and Fleet Rental Finance) (the
"Agreement") dated January 5,1999 between Associates Commercial Corporation
("Secured Party") and Crescent Machinery Company ("Debtor").
I. Description of Inventory. The following items or types of inventory are
subject to the terms of the Agreement and to the security interest granted by
Debtor to Secured Party pursuant to the Agreement:
All new and used equipment, machines, products, attachments and/or parts
financed by Secured Party and upon which any financing or related charges remain
unpaid.
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MASTER SECURITY AGREEMENT
(Wholesale and Fleet Rental Finance)
This Master Security Agreement (this "Agreement") is entered into by and between
Associates Commercial Corporation ("Secured Party") and the party signing below
as debtor ("Debtor"). Debtor and Secured Party agree (hat the security interest
granted herein is limited to Inventory upon which indebtedness or obligation is
owed by Debtor to Secured Party.
1. INVENTORY
1.1 Inventory. Debtor is now or may hereafter be engaged in the business of
selling or renting to Debtor's retail customers the types of property described
in any Supplemental Security Agreement now or hereafter executed by Secured
Party and Debtor relating to this Agreement. The property described on such
Supplemental Security Agreements, together with all attachments exchanges,
replacement parts, repairs and additions to any such property (whether a part of
such property at the time of Debtor's purchase or incorporated in or attached to
such property by Debtor at a later time) is individually referred to in this
Agreement as an "item of Inventory", by classification as a "type of Inventory"
and is collectively referred to in this Agreement as "Inventory."
1.2 Wholesale Inventory. "Wholesale Inventory" is an item of Inventory or type
of Inventory subject to the terms of this Agreement which is (a) acquired or
held by Debtor solely for the purpose of sale and not for the purpose of rental
and/or lease, or (b) acquired by Debtor under the terms of a Special Finance
Plan (as defined below) designating the item or type of Inventory as Wholesale
Inventory. Any item or type of Inventory subject to the terms of this Agreement
and which is not Fleet Rental Inventory (as defined below) will be considered
Wholesale Inventory.
1.3 Fleet Rental Inventory. "Fleet Rental Inventory" is an item of Inventory or
type of Inventory subject to the terms of this Agreement which is (a) designated
by Debtor with the written consent of Secured Party as being acquired or held by
Debtor for the purposes of rental or lease as well as for the purposes of sale,
or (b) acquired by Debtor under the terms of a Special Finance Plan (as defined
below) designating the item or type of Inventory as Fleet Rental Inventory. An
item of Inventory classified as wholesale Inventory may be re-classified as
Fleet Rental Inventory only upon the written consent and agreement of Secured
Party. An item of Wholesale Inventory re-classified as Fleet Rental Inventory
will be considered as reclassified effective as of the first day of the month in
which the written consent and agreement to re-classification is executed or as
otherwise provided in such agreement.
2. ADVANCES AND INTEREST
2.1 Advances. Debtor has requested that Secured Party from time to time make
loans or otherwise extend credit (herein individually referred to as "Advances")
to or on behalf of Debtor, the proceeds of which will be used by Debtor to
acquire one or more items of Inventory or for other legitimate purposes of
Debtor in carrying on the business for which Debtor is acquiring or maintaining
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the Inventory. Debtor agrees and acknowledges that any Advance to or on behalf
of Debtor will be in the sole discretion of Secured Party and that no Advance
made by Secured Party will obligate Secured Party to make any additional
Advance.
2.2 Special Finance Plans. From time to time, a manufacturer or distributor
(herein called "Manufacturer") of one or more items of Inventory may arrange
with Secured Party for Secured Party to offer special finance terms with respect
to Advances made by Secured Party on behalf of Debtor which are used by Debtor
to acquire specified items or types of Inventory from a Manufacturer (herein
called a "Special Finance Plan"). Neither Secured Party nor any Manufacturer
will be obligated in any way to arrange or continue a Special Finance Plan or
offer or continue offering the terms of any Special Finance Plan to Debtor. In
the event a Manufacturer arranges for a Special Finance Plan, Secured Party
offers the Special Finance Plan to Debtor and Debtor accepts the terms of the
Special Finance Plan, Debtor will evidence Debtor's acceptance by executing an
appropriate Special Finance Plan Supplemental Agreement which outlines the terms
of the Special Finance Plan. Secured Party may, in its sole discretion, modify
the terms of a Special Finance Plan with respect to Advances made under the
Special Finance Plan after the date of notice to Debtor and Debtor's acceptance
of Advances after the date of notice will be Debtor's consent to the
modification to the Special Finance Plan. Debtor hereby directs Secured Party to
disburse the proceeds of any Advance made under a Special Finance Plan directly
to the Manufacturer based upon sales invoices presented to Secured Party from
time to time by the Manufacturer which evidence the sale by the Manufacturer to
Debtor of one or more items of Inventory. The Advance to the Manufacturer will
be considered made on the date of the Manufacturer's invoice upon which the
Advance is made regardless of any special funding instructions agreed upon
between Secured Party and Manufacturer.
2.3 Wholesale Inventory/Payment and Interest. Debtor agrees to pay to Secured
Party the unpaid balance of each Advance with respect to an item of Wholesale
Inventory as follows: (a) an Advance which is evidenced by a Supplemental
Security Agreement will be payable as provided in the Supplemental Security
Agreement, (b) an Advance made pursuant to a Special Finance Plan will be
payable as provided in the Special Finance Plan Supplemental Agreement, and (c)
an Advance not subject to a Special Finance Plan or evidenced by a Supplemental
Security Agreement will be payable upon demand.
Debtor agrees to pay Secured Party promptly as billed at the beginning of each
month interest and other charges on the unpaid balance of each Advance from time
to time outstanding with respect to an item of Wholesale Inventory, computed in
accordance with the terms of this section. Interest charges for each item of
Wholesale Inventory for which an Advance was outstanding during the prior month
shall be computed and accrued at the lesser of (a) the Applicable Wholesale Rate
(as defined below) which is in effect on the first business day of the month in
which the interest accrues, or (b) the Maximum Legal Rate (as defined below).
The "Applicable Wholesale Rate" with respect to each Advance is as follows: (a)
the Applicable Wholesale Rate with respect to an Advance evidenced by a
Supplemental Security Agreement will be the rate of interest provided in such
Supplemental Security Agreement, (b) the Applicable Wholesale Rate with respect
to an Advance made pursuant to a Special Finance Plan will be the rate of
interest provided in the Special Finance Plan, and (c) the
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Applicable Wholesale Rate with respect to an Advance not subject to a Special
Finance Plan or evidenced by a Supplemental Security Agreement will be a simple
interest per annum rate equal to the greater of N/A % per annum or the Base Rate
(as defined below).
2.4 Fleet Rental Inventory Payment and Interest. Debtor agrees to pay Secured
Party the unpaid balance of each Advance outstanding with respect to an item of
Fleet Rental Inventory as follows: (a) an Advance which is evidenced by a
Supplemental Security Agreement will be payable as provided in the Supplemental
Security Agreement, (b) an Advance made pursuant to a Special Finance Plan will
be payable as provided in the Special Finance Plan, and (c) an Advance not
subject to a Special Finance Plan or evidenced by a Supplemental Security
Agreement will be payable in monthly installments such that the unpaid balance
will be repaid in full no later than 24 months after the earlier of(a) the date
of Secured Party's Advance with respect to the item of Inventory (whether the
Advance was made based upon a classification of the item of Inventory as
Wholesale Inventory or Fleet Rental Inventory) and (b), if the Advance was made
by Secured Party to enable the Debtor to acquire the item of Inventory from a
manufacturer (whether or not pursuant to a Special Finance Plan), the date of
the manufacturer's invoice to Debtor with respect to the item of Inventory. The
amount of each monthly installment payment will be in amount equal to the
greater of(a) the amount necessary to repay the Advance in full in substantially
equal monthly payments as provided above, and (b) 80% of the Revenues invoiced
by Debtor upon the rental of the item of Inventory during the prior calendar
month.
Debtor agrees to pay Secured Party promptly as billed at the beginning of each
month interest and other charges on the unpaid balance of each Advance from time
to time outstanding with respect to an item of Fleet Rental Inventory, computed
in accordance with the terms of this section. Interest charges for each item of
Fleet Rental Inventory for which an Advance was outstanding during the prior
month shall be computed and accrued at the lesser of (a) the Applicable Fleet
Rental Rate (as defined below) which is in effect on the first business day of
the month in which the interest accrues, or (b) the Maximum Legal Rate (as
defined below). The "Applicable Fleet Rental Rate" with respect to each Advance
is as follows: (a) the Applicable Fleet Rental Rate with respect to an Advance
evidenced by a Supplemental Security Agreement will be the rate of interest
provided in such Supplemental Security Agreement, (b) the Applicable Fleet
Rental Rate with respect to an Advance made pursuant to a Special Finance Plan
will be the rate of interest provided in the Special Finance Plan, and (c) the
Applicable Fleet Rental Rate with respect to an Advance not subject to a Special
Finance Plan or evidenced by a Supplemental Security Agreement will be a simple
interest per annum rate equal to the greater of N/A % per annum the Base Rate
(as defined below).
2.5 Interest Free Periods. If the terms of a Special Finance Plan provide that
interest will not accrue with respect to specified Advances on specified items
or types of Inventory for an initial period of time (the "Interest Free
Period"), so long as Debtor is in compliance with the conditions or restrictions
contained in the Special Finance Plan and is not in default under the terms of
this Agreement, interest will not accrue or be payable on such Advances for the
period from the date of the Advance until the earlier of the date the Advance is
payable to Secured Party or the end of the Interest Free Period. If, however,
Debtor at any time defaults in any obligation to Associates with
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respect to an item of Inventory to which the Advance relates, Debtor will
forfeit Debtor's rights with respect to the Interest Free Period, and interest
will accrue on the related Advance as provided in this Agreement from the date
of such Advance.
2.6 Administrative Charges. Debtor further agrees to pay Secured Party, promptly
as billed, any charge ("Flat Charge") related to each item of Inventory or
Advance which is specified in the Supplemental Security Agreement or under a
Special Finance Plan applicable to such item of Inventory or Advance.
2.7 Calculations of Interest Rate. Wherever used in this Agreement, in any
Supplemental Security Agreement referring to this Agreement or in any Special
Finance Plan Supplemental Agreement, the term "Base Rate" shall mean the Prime
Rate as published from time to time in the Money Rates section of the Wall
Street Journal as the base rate on corporate loans. If more than one Prime Rate
or a range of rates is published, the Prime Rate will be the highest of the
published rates. In the event the Prime Rate as published in the Wall Street
Journal ceases to exist or the Wall Street Journal ceases publishing a Prime
Rate, Associates will substitute a comparable index which is outside the control
of Associates. In the event of an error by the Wall Street Journal, the "Prime
Rate" will be based upon the Prime Rate as corrected. Interest will be computed
at the option of Secured Party on the basis of a 360-day year for the actual
number of days elapsed.
2.8 Maximum Legal Rate. In no event shall the interest rate or other charges
provided in this Agreement or in any Supplemental Security Agreement or Special
Finance Plan exceed the highest rate or charges that Debtor can legally obligate
itself to pay or Secured Party can legally collect (the "Maximum Legal Rate").
If at any time the implementation if any provision of this Agreement would
function to raise the interest rate or other charges of Secured Party above the
Maximum Legal Rate, if any, in effect from time to time in the jurisdiction
whose laws govern this Agreement, including ally applicable Federal laws, for
loans to borrowers of the type, in the amount, for the purposes, and otherwise
of the kind contemplated in this Agreement, then the interest rate or other
charges will be limited to the Maximum Legal Rate and any excess interest or
charges inadvertently collected will be deemed a partial prepayment of the
principal portion of the Advances and applied or reapplied by Secured Party
accordingly.
2.9 Statement of Account. Secured Party will furnish to Debtor from time to time
on a monthly or other periodic basis a statement of Debtor's account with
Secured Party, prepared from Secured Party's records showing all applicable
credits and debits, including all Advances, other charges and payments with
respect to each item of Inventory against which an Advance has been made
pursuant to this Agreement (any error in the identification of one or more items
of Inventory on such statement will not prejudice Secured Party's security
interest in such item). Each such statement will be considered true and correct
and to have been accepted by Debtor and will be conclusively binding on Debtor
with respect to all matters contained therein, unless Debtor notifies Secured
Party in writing of any discrepancy or exception within 30 days of the date of
the mailing by Secured Party to Debtor of any such statement. All payments will
be applied, at Secured Party's option, to accrued changes and interest and then
to principal.
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2.10 Miscellaneous Payment Provisions. Debtor's obligation to pay Secured Party
the entire amount of each Advance will be absolute and unconditional
notwithstanding any contrary agreement, modification or substitution with any
Manufacturer. All amounts payable pursuant to this Agreement are payable at
Secured Party's address set forth below or at such other address as Secured
Party may specify from time to time in writing. After the maturity of any such
payment or upon the acceleration of all indebtedness under this Agreement,
Debtor agrees to pay interest thereon at the rate of 1 1/2% per month if not
prohibited by law, otherwise at the highest rate permitted by applicable law.
Any instrument or agreement which is executed by Debtor and specifies an amount
payable will evidence indebtedness and not payment.
3. SECURITY INTEREST
3.1 Security Interest. To secure payment of all Advances which Secured Party may
elect to make pursuant to this Agreement from time to time, Debtor hereby grants
to Secured Party a security interest in all of the Collateral as described and
defined in any Supplemental Security Agreement executed by Debtor and Secured
Party in connection with this Agreement from time to time (collectively herein
called "Collateral"). Debtor agrees that at any time and from time to time, upon
the request of Secured Party, Debtor will promptly (a) deliver to Secured Party
all Collateral other than Inventory, (b) xxxx all chattel paper, documents and
instruments and debtor's books of account, ledger cards and other records
relative to the Collateral with a notation satisfactory to Secured Party
disclosing that they are subject to Secured Party's security interest, (c)
execute and deliver to Secured Party such instruments, Uniform Commercial Code
financing statements, statements and agreements as Secured Party may request to
further evidence each Advance and the security interests granted under this
Agreement, provided, however, Debtor's failure to comply with such request shall
not affect or limit Secured Party's security interest or other rights in and to
the Collateral, and (d) permit Secured Party or its representatives to examine
the Collateral and Debtor's books and records at any and all reasonable times.
Debtor shall pay all expenses and costs of any nature whatsoever incurred by
Secured Party in connection with any Advances made pursuant hereto, including,
but not limited to, all filing fees and recording costs, and stamp taxes
actually incurred.
4. SALE AND LEASE OF INVENTORY
4.1 Location. The Collateral shall be kept at Debtor's place of business at the
address set forth below Debtor's signature or at one of the following places of
business of Debtor except when the Collateral is being leased or demonstrated
pursuant to the provisions of this Agreement: Union City, CA; Fresno, CA;
Pleasant Grove, CA; Sparks, Nevada; Honolulu, Hawaii.
4.2 Lease of Fleet Rental Inventory. So long as Debtor is not in default under
this Agreement, Debtor may lease any item of Fleet Rental Inventory to retail
customers in the normal course of Debtor's business in accordance with the
following terms and conditions: (a) each lease agreement (herein called a
"Lease") relating to one or more items of Fleet Rental Inventory shall: (i) be
in a form approved by Secured Party and be in conformity with all applicable
governmental laws and
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regulations, (ii) provide that any assignee of the lessor shall not be obligated
to perform or fulfill any of lessor's obligations thereunder, including, without
limitation, any obligation to furnish maintenance, repairs, or services or to
provide insurance, (iii) contain a waiver by the lessee thereunder of all rights
to any set-off, abatement, defense, counterclaim or cross-claim against an
assignee of the lessor, (iv) be the only agreement (other than this Agreement)
then covering the items of Inventory being leased thereunder, (v) be the entire
agreement between Debtor and the lessee thereunder relating to the items of
Inventory being leased thereunder, (vi) not contain any purchase or renewal
options or grant any rights to the lessee thereunder or any other third parties
in or to any Fleet Rental Inventory, except as approved in writing by Secured
Party, and (vii) otherwise conform to such requirements as Secured Party may
specify from time to time; (b) Debtor will comply with all of its warranties and
other obligations under the Lease; and (c) Debtor will report in writing to
Secured Party each month (or at such other times as Secured Party may request)
the location of the Inventory, the name and address of each lessee, the Revenues
billed during such period and such other information as Secured Party may
request. Neither the leasing of any Inventory nor any Lease shall relieve Debtor
of any of its obligations to Secured Party under this Agreement, and the
assignment of and security interest granted in the Documents shall not be
construed as authorizing Debtor to do anything with the Inventory other than to
lease the same in accordance with the provisions hereof. Debtor agrees that
Secured Party does not, by this Agreement or otherwise, assume any of the
obligations of Debtor under the Lease or other Documents. Debtor hereby grants
to Secured Party the right (in debtor's name or otherwise, and without affecting
Debtor's obligations to Secured Party) to demand, receive, compromise extend the
time of payment of, or give a discharge for, any and all Revenues, to endorse
any checks or other instruments or orders in connection with the Revenues and to
file any claims or take such actions or institute such proceedings as Secured
Party may deem necessary or desirable to protect Secured Party's interests.
Debtor shall have no authority to, and will not, without Secured Party's prior
written consent, accept collections, repossess, substitute or consent to the
return of the Inventory or modify the terms of the Documents, provided, however,
until Secured Party notifies Debtor to the contrary, Debtor may collect the
rents and monies owing under the Documents as the same become due but not
otherwise. Debtor agrees, upon request of Secured Party, to notify the lessees
and all other obligors under the Documents of the interest of Secured Party and
to direct the lessees and all other obligors under the Documents to pay all
Revenues directly to Secured Party. Debtor agrees to promptly render monthly
xxxxxxxx to all lessees of the Inventory.
4.3 Sale of Inventory. So long as Debtor is not in default under this Agreement,
Debtor may sell any item of Inventory in the regular course of Debtor's business
for a price not less than the amount of the Advance applicable thereto except as
otherwise agreed to in writing by Secured Party. All sales of Inventory shall be
for cash or upon such terms and conditions as Secured Party may approve in
writing. Upon the sale of any item of Inventory (with or without the consent of
Secured Party) the amount of the Advance applicable thereto shall become
immediately due and payable and Debtor shall immediately pay such amount in cash
to Secured Party without notice or demand. All Collateral resulting from such
sale shall be held by Debtor in trust for Secured Party, separated from all
other funds and assets of Debtor.
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5. REPRESENTATIONS AND WARRANTIES
5.1 Representations and Warranties. Debtor warrants and agrees that: the
execution of and performance by Debtor under the terms of this Agreement has
been approved for Debtor by all necessary action and by Debtor's partners or
board of directors, as applicable; the Inventory is currently and will continue
be maintained in good operating condition, repair and appearance and is
currently and will continue be used and operated with care only by qualified
personnel in the regular course of Debtor's business and in conformity with all
applicable governmental laws and regulations, manufacturer's specifications and
the restrictions contained in any insurance policy insuring the Inventory; the
Inventory is not currently and will not be used in conjunction with the storage,
transportation or disposal of substances considered to be toxic or hazardous or
in conjunction with any activity or for any use that would subject the Inventory
to seizure or confiscation by any governmental body; and the Inventory is
currently located at and will be kept by Debtor at the location set forth in
this Agreement and will not be removed from said location without the prior
written consent of Secured Party. Secured Party shall have the right to inspect
the Inventory at all reasonable times and from time to time.
Debtor further warrants and agrees that: the security interest in the Collateral
granted to or retained by Secured Party is and will continue to be superior to
any title to or interest in the Inventory now or hereafter held or claimed by
any other party; the Collateral is free from and will be kept free from all
liens, claims, security interests and encumbrances (whether superior or inferior
to the interests of Secured Party) other than that created by this Agreement;
notwithstanding Secured Party's interest in proceeds, Debtor will not and will
not allow any other party to consign, sell, rent, lend, encumber, pledge,
transfer, secrete or otherwise dispose of any of the Collateral other than as
authorized in this Agreement without Secured Party's prior written consent;
Debtor will do everything Secured Party deems necessary or expedient to perfect
or preserve the interests granted to Secured Party under this Agreement and the
first priority of such interests; any Manufacturer's Statement or Certificate of
Origin or Certificate of Title relating to the Inventory shall be immediately
delivered to Secured Party and, if a Certificate of Title or registration is
required to be issued for any item of Inventory, Debtor will cooperate with
Secured Party in obtaining the Certificate of Title or registration disclosing
the interests of Debtor and Secured Party in the Inventory; Debtor will defend
any action, proceeding or claim affecting the Collateral or the interests of
Secured Party in the Collateral; Debtor shall promptly pay all amounts payable
in conjunction with the storage, maintenance or repair of the Inventory and all
taxes, assessments, license fees and other public or private charges levied or
assessed in conjunction with the ownership, operation or use of the Inventory or
levied or assessed against the Collateral, this Agreement or any accompanying
note except for those which are being contested by Debtor in good faith by
appropriate proceedings and which do not constitute a lien or encumbrance upon
the Collateral; and Debtor will from time to time furnish Secured Party with
such financial statements and other information as Secured Party may reasonably
request.
5.2 Insurance and Risk of Loss. Debtor will at all times bear all risk of loss
of, damage to or destruction of the Inventory. Debtor agrees to immediately
procure and maintain insurance on the Inventory for the full insurable value
thereof and for the life of this Agreement, in the form of "All Risk" or similar
insurance (insuring the Inventory for fire, extended coverage, vandalism, theft
and collision and containing only those exclusions from coverage which are
acceptable to Secured Party)
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plus such other insurance as Secured Party may specify from time to time, all in
form and amount and with insurers satisfactory to Secured Party. Debtor agrees
to deliver promptly to Secured Party certificates or, if requested, policies of
insurance satisfactory to Secured Party, each with a standard long-form
loss-payable endorsement naming Secured Party or assigns as loss-payee and
providing that Secured Party's rights under such policy will not be invalidated
by any act, omission or neglect of anyone other than Secured Party, and
containing the insurers agreement to give 30 days prior written notice to
Secured Party before any cancellation of or material change in the policy(s)
will be effective as to Secured Party, whether such cancellation or change is at
the direction of Debtor or insurer. Secured Party's acceptance of policies in
lesser amounts or risks will not be a waiver of Debtor's obligation to procure
insurance complying with the provisions hereof promptly after notice from
Secured Party. Debtor assigns to Secured Party all proceeds of any physical
damage or credit insurance which is maintained by Debtor in accordance herewith,
including returned and unearned premiums, up to the amount owing hereunder by
Debtor. Debtor directs all insurers to pay such proceeds solely to the order of
Secured Party for application to Debtor's indebtedness to Secured Party. Secured
Party may, at its option, apply any such proceeds received by Secured Party to
the final maturing installments due hereunder in the inverse order of their
maturity.
5.3 Performance by Secured Party, If Debtor fails to perform any of Debtor's
obligations pursuant to Paragraphs 1 or 2 above, Secured Party may perform the
same for the account of Debtor. Any such action by Secured Party will be in
Secured Party's sole discretion and Secured Party will not be obligated in any
way to do so. Secured Party's performance on behalf of Debtor will not obligate
Secured Party to perform the same or any similar act in the future and will not
cure or waive Debtor's failure of performance as an event of default hereunder.
All sums advanced or costs and expenses incurred by Secured Party pursuant to
this Paragraph, including the reasonable fees of any attorney retained by
Secured Party, will be for the account of Debtor, will constitute indebtedness
secured by Secured Party's security interest in the Collateral, will bear
interest at the rate as specified on the reverse side of this Agreement in the
event of acceleration and, unless Secured Party, in Secured Party's sole
discretion agrees otherwise in writing, shall be immediately due and payable.
6. DEFAULT
6.1 Events of Default. Time is of the essence. An event of default will occur
if: (a) Debtor fails to pay when due any amount owed by it to Secured Party
under this Agreement or under the terms of any promissory note delivered in
conjunction with this Agreement or if Debtor fails to pay when due any amount
owed by it to Secured Party or to any affiliate of Secured Party under any other
document, agreement or instrument; (b) Debtor fails to perform in compliance
with any of its agreements hereunder or any warranty made by Debtor in this
Agreement is or becomes incorrect or if Debtor fails to perform or observe any
term or provision to be performed or observed by it under any other document,
instrument or agreement furnished by Debtor to Secured Party or any affiliate of
Secured Party or otherwise acquired by Secured Party or any affiliate of Secured
Party; (c) any information, representation, or warranty furnished by Debtor to
Secured Party or to any affiliate of Secured Party is inaccurate or incorrect in
any material respect when furnished; (d) Debtor becomes
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insolvent or ceases to do or is prohibited by any court order or govern mental
action from conducting the business in which Debtor is principally engaged on
the date of this Agreement as a going concern; (e) any surety or bonding company
assumes any of Debtor's responsibilities under any contract or job; (f) if any
of the Inventory is lost, stolen, destroyed, confiscated by any governmental
agency, abandoned, or relocated, used or maintained in violation of the terms
hereof or if Debtor attempts to consign, sell, rent, lend or encumber any of the
Inventory or allows another to do so; (g) Debtor files a petition in bankruptcy,
or for an arrangement, reorganization, or similar relief, or makes an assignment
for the benefit of creditors, or applies for the appointment of a receiver or
trustee for a substantial part of its assets or for any of the Inventory, or
attempt to take advantage of any process or proceeding for the relief of
debtors, or if any such action is taken against Debtor; (h) any other party
attempts to attach, repossess or execute upon any of the Collateral; (i) Debtor
ceases to exist as a legal entity or Debtor or any party in control of Debtor
takes any action looking to Debtor's dissolution as a legal entity; (1) there
shall be a material change in the management, ownership or control of Debtor; or
(k) Secured Party in good faith believes that the prospect of payment or
performance hereunder is impaired. Secured Party's inaction with respect to an
event of default shall not be a waiver of such default and Secured Party's
waiver of any default shall not be a waiver of any other default.
6.2 Remedies Upon Default. Upon the occurrence of an event of default, and at
any time thereafter as long as the default continues, Secured Party may, at its
option, with or without notice to Debtor (i) declare this Agreement to be in
default, (ii) declare the indebtedness hereunder to be immediately due and
payable, (iii) declare all other debts then owing by Debtor to Secured Party to
be immediately due and payable, (iv) cancel any insurance and credit any refund
to the indebtedness, and (v) exercise all of the rights and remedies of a
Secured Party under the Uniform Commercial Code and any other applicable laws,
including, without limitation, the right to require Debtor to assemble the
Inventory and deliver it to Secured Party at a place to be designated by Secured
Party which is reasonably convenient to both parties and to lawfully enter any
premises where the Collateral may be without judicial process and take
possession thereof. Acceleration of any or all indebtedness, if so elected by
Secured Party, shall be subject to all applicable laws including those
pertaining to refunds and rebates of unearned charges. Any property other than
the Collateral which is in or upon the Collateral at the time of repossession
may be taken and held without liability until its return is requested by Debtor.
Any sale or other disposition of any of the Collateral may be made at public or
private sale or through public auction for a wholesale or retail price at the
option of Secured Party. Secured Party may buy at any sale and become the owner
of the Collateral. Unless otherwise provided by law, any requirement of
reasonable notice which Secured Party may be obligated to give regarding the
sale or other disposition of Collateral will be met if such notice is mailed to
Debtor at its address shown herein at least ten days before the time of sale or
other disposition. Debtor agrees that Secured Party may bring any legal
proceedings it deems necessary to enforce the payment and performance of
Debtor's obligations hereunder in any court in the State shown in Secured
Party's address set forth herein, and service of process may be made upon Debtor
by mailing a copy of the summons to Debtor at its address shown herein. The
filing by Secured Party of any action or proceeding with respect to the
Collateral or any of Debtor's obligations hereunder shall not constitute an
election by Secured Party of Secured Party's remedies or a waiver of Secured
Party's rights to take
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possession of the Collateral as provided above. Expenses of retaking, holding,
preparing for sale, selling and the like shall include (a) the reasonable fees
of any attorneys retained by Secured Party, (b) any amounts advanced or expenses
incurred by Secured Party pursuant to Paragraph 3 hereof and (c) all other legal
and other expenses incurred by Secured Party. Debtor agrees that it is liable
for and will promptly pay any deficiency remaining after any disposition of
Collateral after default and all costs and expenses, including the reasonable
fees of any attorney, incurred by Secured Party in the collection of any such
deficiency.
7. ADDITIONAL PROVISIONS
7.1 Power of Attorney. Debtor hereby appoints Secured Party or any duly
authorized officer or employee of Secured Party as Debtor's attorney-in-fact to,
in Debtor's or Secured Party's name: (a) prepare, execute and submit any notice
or proof of loss in order to realize the benefits of any insurance policy
insuring the Collateral; (b) prepare, execute and file any instrument which. in
Secured Party's opinion, is required by law to perfect and give or modify public
notice of Secured Party's interest in the Collateral; and (c) endorse Debtor's
name on any remittance representing proceeds of any insurance insuring the
Collateral or the proceeds of the sale, or other disposition of any of the
Collateral (whether or not such disposition is a default hereunder). This power
is coupled with an interest and is irrevocable so long as any indebtedness
secured hereunder remains unpaid.
7.2 Assignment. Debtor shall not assign this Agreement without the prior written
consent of Secured Party. Secured Party may assign this Agreement with or
without notice to or the consent of Debtor. Upon assignment, the term "Secured
Party" shall mean and refer to any assignee who is the holder of this Agreement.
After assignment of this Agreement by Secured Party, the assignor will not be
the assignee's agent for any purpose and Debtor's obligations to the assignee
will be absolute and unconditional and, to the extent permitted by applicable
law, will not be subject to any abatement, reduction, recoupment, defense,
set-off or counterclaim available to Debtor for breach of warranty or for any
other reason whatsoever. Upon full payment of all obligations secured by this
Agreement, the assignee may deliver all original papers to the assignor for
Debtor.
7.3 Miscellaneous. (A) All of Secured Party's rights hereunder are cumulative
and not alternative. (B) The inclusion of a trade name or division name in the
identification of Debtor hereunder does not limit Secured Party's rights, after
the occurrence of an event of default, to proceed against all of Debtor's
assets, including those held or used by Debtor individually or under another
trade or division name. (C) If permitted by law, Debtor agrees that a carbon,
photographic or other reproduction of this Agreement or of a financing statement
may be filed as a financing statement. (D) Secured Party may correct patent
errors herein and fill in blanks. (E) All of the terms and provisions hereof
will apply to and be binding upon Debtor, its heirs, personal representatives,
successors and assigns and shall inure to the benefit of Secured Party, its
successors and assigns. (F) Debtor and Secured Party hereby waive any right to
trial by jury in any action or proceeding relating to this Agreement or the
transaction contemplated hereby. (G) Debtor hereby expressly waives notice of
nonpayment, presentment, protest, dishonor, default, intent to accelerate the
maturity hereof and of acceleration
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23
of the maturity hereof. (H) Deleted (I) To the extent allowed by law, Debtor
hereby waives any exemptions or appraisals. (J) No waiver or change in this
Agreement or in any related note will be binding upon Secured Party, or Secured
Party's assignee, unless such waiver or change is in writing and signed by one
of its officers and any such waiver or change shall then be effective only upon
the terms and to the extent provided in such writing. (K) The acceptance by
Secured Party of any remittance from a party other than Debtor will in no way
constitute Secured Party's consent to the transfer of any of the Collateral to
such party. (L) Any captions or headings included in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning of any provision contained in this Agreement. (M) Any provision
contained herein which is contrary to, prohibited by or invalid under applicable
laws or regulations will be deemed inapplicable and omitted herefrom, but shall
not invalidate the remaining provisions hereof (N) The only copy of this
Agreement which constitutes "chattel paper" is the original executed copy
designated as "Original For Associates".
8. GOVERNING LAW
8.1 Governing Law. This Agreement shall in all respects be governed by, and
construed in accordance with, the laws of the State of Texas including all
matters of construction, validity and performance. No oral agreement, guaranty,
promise. representation or warranty shall be binding upon Secured Party.
Dated: January 5, 1999
Western Traction Company
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24
Schedule A
(Inventory Description)
This Schedule A (Description of Inventory) is attached to and made a part of
that certain Master Security Agreement (Wholesale and Fleet Rental Finance) (the
"Agreement") dated January 5,1999 between Associates Commercial Corporation
("Secured Party") and Western Traction Company ("Debtor").
I. Description of Inventory. The following items or types of inventory are
subject to the terms of the Agreement and to the security interest granted by
Debtor to Secured Party pursuant to the Agreement:
All new and used equipment, machines, products, attachments and/or parts
financed by Secured Party and upon which any financing or related charges remain
unpaid.
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25
SECURITY AGREEMENT
Made this 31 day of August 1994, by Associates Commercial Corporation,
a Delaware corporation (herein called "CREDIT"), having a place of business at
X.X. Xxx 000000 Xxxxxxxxxx, XX and Western Traction Company a California
Corporation, with its chief executive office at 0000 Xxxxxxxx Xx., Xxxxx Xxxx,
XX 00000, and additional places of business at 0000 X. Xxxx, Xxxxxx, XX 00000,
000 X. Xxxx Xxxx., Xxxxxx, XX 00000 and 0000 Xxxxxxx Xxxxxx, Xxxxxxxx Xxxxx, XX
00000 (herein called "DEALER").
1. STATEMENT OF PURPOSE
Dealer normally purchases and maintains a substantial inventory of
Products and Parts for sale to its customers. In addition, DEALER purchases
Products which it rents or leases to its customers. In the course of these
activities, DEALER may desire financing of many different varieties.
CREDIT is engaged in making financing available to DEALER on a
continuing basis.
CREDIT, at its option, when DEALER requests, will make loans to DEALER
to finance DEALER's acquisition of Products or Parts to be held as inventory for
ultimate sale to DEALER's customers or to be held for rental or lease to
DEALER's customers, and further at its option, will furnish financing to
DEALER's customers, and may make loans for such other purposes as may be
mutually agreed by DEALER and CREDIT.
Since it is expected that financing activities between DEALER and
CREDIT will be continuing and that there will be numerous separate transactions,
the parties intend by this agreement to establish herein, without the need for
further documentation, a Security Interest in all Collateral to secure all
Liability of DEALER to CREDIT, and to further establish certain obligations of
DEALER to CREDIT.
2. DEFINITIONS
When capitalized in this Agreement, the terms defined in this Section 2
have the meanings specified below:
2.1 Account - has the meaning accorded it by the Uniform Commercial
Code as in effect from time to time under applicable state law.
2.2 Account Debtor - has the meaning accorded it by the Uniform
Commercial Code as in effect from time to time under applicable state law.
2.3 Chattel Paper - has the meaning accorded it by the Uniform
Commercial Code as in effect from time to time under applicable state law.
26
2.4 Collateral - means all of the following, whether now owned or
hereafter acquired: (a) Products; (b) Parts; (c) returned or repossessed
Products or Parts; (d) Accounts and Chattel Paper arising out of or relating to
the sale, lease, rental or other disposition of Products or Parts; and (e) all
proceeds of any of the foregoing items described in (a)-(d).
2.5 Financed Inventory - means Products or Parts which are now or
hereafter financed by CREDIT.
2.6 Financing Plan - means the policies announced to DEALER by CREDIT
from time to time as the amounts that will be loaned to finance the acquisition
of any Financed Inventory and the amounts that will be loaned for other
purposes, the terms of any such loan and interest, service charge and conditions
thereof and any related terms or conditions, whether such policies are contained
in a finance manual or other documents, including any separate agreement or
documents relating to the financing extended to DEALER by CREDIT.
2.7 Inventory - has the meaning accorded it by the Uniform Commercial
Code as in effect time to time under applicable state law.
2.8 Liability - means any and all direct and indirect obligations,
contingent or otherwise, of DEALER to CREDIT, of every kind and description, now
existing or hereafter arising, whether under this Agreement or otherwise.
Liability includes obligations to perform acts or refrain from taking action, as
well as obligations to pay money.
2.9 Parts - means Inventory consisting of service and replacements
parts and kits of parts for repair or modification, for use on Products or
similar goods.
2.10 Products - means Inventory whether now or owned or hereafter
acquired by DEALER consisting of: (i) all trenching, construction, material
handling, agricultural, road building, earth moving, compaction, paving, mining,
logging, forestry, commercial or industrial equipment or other similar goods;
and (ii) accessory items and attachments for use or installation on goods of the
type listed in (i) above.
2.11 Security Interest - has the meaning accorded it by the Uniform
Commercial Code as in effect from time to time under applicable state law.
3. GRANT OF SECURITY INTEREST
To secure performance or payment of Liability, DEALER hereby grants to
CREDIT a security interest in the Collateral. As additional security for
Liability, DEALER hereby assigns to CREDIT, as its interests may appear, all of
DEALER's right, title and interest in and to insurance proceeds payable to
DEALER by reason of loss of or damage to all or any part of the Collateral.
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4. FINANCING TERMS
4.1 CREDIT will announce from time to time its Financing Plans. DEALER
shall abide by and adhere to the applicable Financing Plan, which may be changed
from time to time in whole or in part without prior notice to DEALER.
4.2 When DEALER wishes to obtain financing from CREDIT for itself or
for DEALER's customers, it shall request such financing in accordance with
applicable procedures established by CREDIT in the Financing Plan.
4.3 If CREDIT, at its sole option, agrees to provide financing
requested by DEALER, such financing shall be on such terms and subject to such
condition as may be established in accordance with this Agreement, the
Applicable Financing Plan or otherwise by CREDIT and DEALER.
4.4 CREDIT may, from time to time, prepare and deliver to DEALER one or
more statements of account reflecting the loans and financing extended by CREDIT
to DEALER hereunder. Unless DEALER objects thereto within 10 days of receipt of
any such statement of account, the terms, conditions and contents of such
statements of account shall be conclusively deemed accurate and correct and
shall constitute a valid and binding obligation of the DEALER to pay the amounts
set forth therein at the time specified therein.
4.5 DEALER agrees to execute and deliver to CREDIT any and all
documents requested by CREDIT, including but not limited to promissory notes, in
connection with the financing extended by CREDIT to DEALER hereunder.
5. DISPOSITION OF FINANCED INVENTORY
5.1 Financed Inventory may be sold by DEALER only in the ordinary
course of business and only in accordance with the terms and upon the conditions
of the applicable Financing Plan in effect from time to time. In the event any
piece of Financed Inventory is sold by DEALER, DEALER shall remit to CREDIT the
unpaid balance of the amount financed by CREDIT plus all interest due at the
earliest of (a) The expiration of 24 hours after DEALER receives the proceeds of
such sale or (b) 30 days after such sale DEALER shall hold all proceeds of any
disposition of Financed Inventory as trustee for CREDIT and shall not sell,
assign or otherwise dispose of all or any part of such proceeds without the
prior written consent of CREDIT.
5.2 Financed Inventory may be placed in the possession of a customer
for demonstration purposes only in accordance with the terms of the applicable
Financing Plan.
5.3 DEALER will not rent or lease any piece of Financed Inventory that
has not previously been identified by CREDIT as being held by DEALER for lease
or rental and for which DEALER has not previously submitted to and had approved
CREDIT a Request for Rental Financing. The rental or lease by DEALER of any
piece of Financed Inventory shall at all times comply and be in accordance with
the terms of the applicable Financing Plan.
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5.4 The sale of any Financed Inventory for which CREDIT is not paid as
required by Section 5.1 and the lease or rental of any Financed Inventory
without the prior written consent of CREDIT, will constitute an "Out-of-Trust"
occurrence in violation of this Agreement.
6. COVENANTS OF DEALER
DEALER covenants and warrants to CREDIT as follows:
6.1 Payment or Performance of Liability - Dealer shall pay when due all
Liability and shall observe or perform all Liability in accordance with the
terms thereof. The obligation of DEALER to pay such Liability shall be absolute
and unconditional and shall not be affected by any offset, counterclaim or
occurrence whatsoever, whether against CREDIT or any other person, including but
not limited to any damage to, loss or destruction of, or defect in any of the
Products.
6.2 Maintenance of Collateral - Dealer shall maintain and preserve the
Collateral in good order and condition; shall not permit the Collateral to be
wasted or destroyed, and shall protect the Security Interest of CREDIT. DEALER
will not cause or permit the removal of any component or accessory from a piece
of Financed Inventory except during the course of maintenance or repair. If
Financed Inventory shall not, in the opinion of CREDIT, be maintained in good
order and condition, CREDIT may, without prejudice to any other rights, give
written notice to DEALER to put such Financed Inventory in good order and
condition, and if DEALER does not, within the (10) days from the date of such
notice, comply with the requirements therein set forth, CREDIT may cause such
Financed Inventory to be put in good order and condition, the expense thereof to
be paid or reimbursed by DEALER on demand. DEALER will immediately notify CREDIT
of any loss of or damage to, or material diminution in value (including but not
limited to diminution in value through demonstration to prospective customers)
or any occurrence which adversely affects the value of the Collateral. If
CREDIT, in its xxxx discretion, determines there has been any such loss, damage
or diminution in value, DEALER shall upon the request of CREDIT, pay to CREDIT,
within such period as specified by CREDIT, such amount as CREDIT has determined
to represent the amount of such loss, damage or diminution in value.
6.3 Taxes - DEALER shall be liable for all taxes, fees or assessments
in the Collateral, or the use thereof and shall reimburse CREDIT for amounts
equal to all taxes, fees, or assessments including penalties and interest levied
or based on the Agreement, the Collateral or the use or operation thereof,
excepting only franchise taxes or taxes measured by net income or net worth of
CREDIT.
6.4 Liability and Insurance - DEALER shall indemnify, save and hold
CREDIT harmless in respect to all claims, demands, suits and expenses on account
of bodily injury, sickness or disease, including death, sustained by any person
or persons, injury to or the destruction or property, and any and all other
losses, accidents, claims, suits and expenses whatsoever and howsoever arising
or incurred in the course of the business activities carried on by DEALER.
DEALER assumes all risk of physical loss or damage to the Collateral and shall
provide and maintain insurance evidencing fire, extended coverage perils,
vandalism and malicious mischief and theft insurance in an amount not less than
the full insurable value of the Collateral. Such insurance shall include a loss
payable clause
29
showing DEALER and CREDIT as loss payees, as their interest may appear. DEALER,
at its own expense, shall also carry public liability insurance with bodily
injury limits of not less than $250,000.00/$500,000.00 and with property damage
limits of not less than $100,000.00 per accident for the contractual liability
coverage of the hold harmless clause provided herein. DEALER shall furnish to
CREDIT certificates evidencing the insurance coverage required herein which
certificates shall require ten (10) days' prior written notice to CREDIT prior
to cancellation. If DEALER does not secure any or all of the insurance required
to be carried hereunder, CREDIT may, but it not obligated to, purchases such
insurance, the cost of which must be reimbursed to CREDIT by DEALER immediately.
6.5 Records - DEALER shall maintain at its permanent office full and
complete records with respect to COLLATERAL, which records shall include the
location of each item of Collateral at all times. Such records shall be
available as all times to CREDIT or its duly authorized representatives for
purposes of inspection, and CREDIT and its representatives shall have free
access at all reasonable time to inspect any item of Collateral.
6.6 Security Interest - DEALER shall sign and execute alone or with
CREDIT any financing statement or other document or certificate of title or
procure any document or certificate of title, and pay all connected costs,
necessary or desirable to perfect or otherwise protect CREDIT's Security
Interest under this Agreement against the rights or interest of third persons.
If permitted by applicable law, DEALER authorizes CREDIT to sign and file on
behalf of DEALER any financing statement or amendment thereof necessary or
desirable to perfect the Security Interest of CREDIT. A carbon, photographic or
other reproduction of this Agreement is sufficient as a financing statement and
may be filed by CREDIT, at its option, in such filing offices as it deems
appropriate.
6.7 Notification of Account Debtors - DEALER agrees that at any time or
times, CREDIT may notify any Account Debtor or other person obligated on any
Account, Chattel Paper or other item of Collateral of the interest of CREDIT
therein. If DEALER is in default under this Agreement, CREDIT may further notify
such Account Debtor or other person that such Account Debtor or other Person
shall make all payments directly to CREDIT. DEALER shall, at the request of
CREDIT, execute any such notifications.
6.8 Signatory Authorization - DEALER hereby constitutes and appoints
such of CREDIT's employees or designees as CREDIT may decide from time to time
as DEALER's true and lawful attorney-in-fact to perform the following: (a) to
write in the description of Products, the quantities, prices, interest rates,
repayment schedules and other details of the transaction on the instruments
evidencing DEALER's obligation to CREDIT, which instruments shall be
substantially in the form of promissory note as designated by CREDIT from time
to time; (b) to sign in DEALER's name by use of a facsimile signature or by any
other appropriate means, and promissory notes or other evidences of
indebtedness; and (c) to execute on behalf of DEALER the notification letters
described in Section 6.7 hereof.
DEALER further agrees that, if DEALER is in default hereunder and, as a result
of such default, Liability is accelerated by CREDIT, any employee or authorized
representative of CREDIT may
30
execute, sign, endorse and transfer in the name of DEALER notes, checks, drafts,
or other instruments for the payment of money and receipts, certificate of
origin and applications for certificates of title or other documents, necessary
to evidence, perfect and realize upon the Security Interest and Liability.
6.9 Name Change - DEALER shall notify CREDIT of any proposed changed in
its name, identity, ownership or structure not less than thirty (30) days before
such change is effective. If any such change would, in the opinion of CREDIT,
adversely affect its Security Interest or otherwise adversely affect its
interest under this Agreement or otherwise, CREDIT in its sole discretion, may
notify DEALER of corrective action it will be required to take (including,
without limitation, execution and filing any financing statements evidencing
such change). DEALER shall promptly comply with all the terms of any such
notification.
6.10 Location of Collateral; Offices - Except for a sale, lease or
rental of Products and Parts in accordance with this Agreement, DEALER shall
keep the Collateral in its possession or control at one of DEALER's places of
business specified in this Agreement, unless CREDIT consents in writing to
removal of such Collateral to another location. DEALER shall promptly notify
CREDIT in writing of any proposed change of the location of its chief executive
office, and of all proposed additional places of its business.
6.11 Partnership - If DEALER is a partnership, all Liability shall
remain in force and shall apply to and shall be binding upon those individuals
or entities which are the partners at the time this Agreement is signed and any
individuals or entities who subsequently become partners DEALER, notwithstanding
any changes in the individuals or entities comprising the partnership. The term
"DEALER" shall include any alternate or successor partnerships.
6.12 Transactions with Affiliates - Without the prior approval of
CREDIT, DEALER shall not sell, transfer, assign or otherwise convey any item of
Collateral to any person or entity which controls, is controlled by, or is under
common control with DEALER.
6.13 Financial Statements - DEALER shall furnish to CREDIT as soon as
available and in any event within 120 days after the end of each fiscal year a
copy of the financial statements of DEALER and each of its affiliates (including
balance sheet and statement of income and retained earnings) for such year,
prepared in accordance with generally accepted accounting principles and, except
as otherwise permitted by CREDIT, audited by independent auditors. DEALER shall
also furnish other periodic financial statements and reports as shall be
requested by CREDIT.
6.14 Accuracy of Statement - DEALER covenants and warrants that all
representations and warranties now or hereafter made to CREDIT, whether in this
Agreement or in any supporting or supplemental reports, statements or
documentation, including, without limitation, statements relating to the
Collateral and financial statements, are, and shall continue to be, true and
correct.
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7. Default
DEALER shall be in default on this Agreement upon the happening of any
of the following events.
7.1 Failure to pay, perform or observe any Liability in accordance with
its terms, including without limitation any Out-Of-Trust occurrence.
7.2 Insolvency of DEALER or the making of an assignment for the benefit
of creditors by Dealer or the commencement of proceedings in bankruptcy or for a
receivership by or against DEALER.
7.3 Breach by DEALER of any terms, conditions or covenants of this
Agreement or any Financing Plan of CREDIT in effect from time to time or any
term of any other agreement previously or hereafter entered into between DEALER
and CREDIT or any of CREDIT's subsidiaries or affiliates.
7.4 Termination of or failure to renew, for any reason, any agreement
which is material to DEALER's or any affiliate of DEALER, business pursuant to
which the manufacturer name in such agreement has appointed DEALER or any
affiliate of DEALER a distributor of Products.
7.5 At any time that CREDIT in good faith believe the prospect of
payment or performance hereunder is impaired or the Collateral is insecure,
including without limitation DEALER's default under any agreement with any third
party which default materially and adversely affects DEALER's business.
8. REMEDIES
If any of the events of Default specified herein shall occur, all
Liability due or to become due shall accelerate and become immediately due and
payable without notice or demand and CREDIT may exercise and shall have any and
all rights and remedies accorded to it by the Uniform Commercial Code as in
effect from time to time under applicable state law. In addition, CREDIT may
require DEALER to assemble the Collateral and make it available to CREDIT at a
place designated by CREDIT which is reasonably convenient to all parties. CREDIT
is also hereby authorized and empowered to enter in a lawful manner and without
breaching the peace, any premises of DEALER or other place where Collateral may
be located and take possession of the Collateral without notice or demand, and
DEALER waives any rights DEALER may have to such notice or demand. CREDIT may
take possession of Collateral wherever found except as otherwise provided by
applicable law. In connection with the enforcement of its Security Interest
hereunder, CREDIT may take possession of any goods installed in, affixed to or
otherwise in or upon the Collateral at the time of repossession, an hold such
goods for DEALER at DEALER's risk without any liability on the part of CREDIT.
As to any Collateral which is rented to a customer of DEALER, CREDIT shall be
deemed to have taken possession of DEALER's interest in such Collateral by
giving notice to the lessee of such Collateral that CREDIT has acquired DEALER's
interest. DEALER agrees that notice sent to it by any of the methods provided in
Section 10.1 hereof at least five (5) days before the action or occurrence
described in such notice shall, constitute reasonable notice under applicable
law; provided
32
however, that is the circumstances indicate that a shorter period of notice is
reasonable, such shorter period shall constitute reasonable notice under
applicable law. DEALER shall pay CREDIT on demand any and all expenses,
including reasonable attorney's fees and court costs, incurred or paid by CREDIT
in protecting or enforcing any of their rights or remedies hereunder. Rights and
remedies provided for herein are cumulative, and shall not limit rights or
remedies otherwise available to CREDIT under any other agreement or applicable
law.
9. APPLICATION OF PAYMENTS - OFFSET
DEALER waives any right it may have to direct the application of any
payments made by it to CREDIT, and CREDIT may at its option offset and deduct
any Liability of DEALER from any or all sums owed by it to DEALER.
10. GENERAL
10.1 Notices - Any notice required or permitted under the terms of this
Agreement may be delivered in person to the party to whom the notice is being
given and shall be in writing; or may be sent by facsimile transmission or
mailed by ordinary, certified or registered mail, potage fully prepaid, in a
properly addressed envelope to the party to whom notice is being given at the
last know address.
10.2 Waivers - Failure of any party at any time to require performance
of any provision shall not affect the right to require full performance thereof
at any time thereafter, and the waiver by any party of a breach of any such
provision shall not constitute a waiver of any subsequent breach.
10.3 Assignment - This Agreement shall be binding upon and inure to the
benefit of the successors and assigns of the parties hereto; provided, however,
DEALER shall not without the prior written consent of CREDIT assign any right to
credit advances from CREDIT or delegate any of its obligations under this
Agreement to any third party. CREDIT may assign its rights and obligations under
this Agreement at any time.
10.4 Effective Date; Prior Agreements - This Agreement shall take
effect on the first date above written and shall govern the relationship of the
parties in respect to its subject matter after such date. If DEALER and CREDIT
or any of CREDIT's subsidiaries or affiliates have previously executed a
security agreement or related financing agreements, such agreements shall not be
terminated by this Agreement.
10.5 Applicable Law - THE AGREEMENT IS ENTERED INTO AND ALL LOANS AND
OTHER EXTENSIONS OF CREDIT ARE GRANTED IN THE CITY OF XXXXXXXX, STATE OF
MICHIGAN AND THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED
BY THE LAWS OF THE STATE OF CALIFORNIA. IF ANY PROVISION HEREOF IS PROHIBITED BY
SUCH LAW OR ANY OTHER LAW WHICH IS FOUND TO BE APPLICABLE, SUCH PROVISIONS SHALL
BE INEFFECTIVE WITHOUT INVALIDATING THE REMAINING PROVISIONS HEREOF.
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10.6 Jury Waiver - IN ANY LITIGATION ARISING OUT OF OR RELATING TO ANY
OF THE MATTERS CONTAINED HEREIN, OR ANY OTHER DOCUMENTS EXECUTED IN CONNECTION
HEREWITH, IN WHICH THE DEALER AND CREDIT ARE ADVERSE PARTIES, THE DEALER WAIVES
TRIAL BY JURY.
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ADDENDUM TO SECURITY AGREEMENTS
THIS ADDENDUM, is by and between Associates Commercial Corporation ("Secured
Party"), Western Traction Company ("Western") and Crescent Machinery Company,
(Western and Crescent shall hereafter be referred to individually and
collectively as "Crescent").
WHEREAS, Crescent and Secured Party have entered into that certain Security
Agreement dated _______________________; and
WHEREAS, Crescent and Secured Party have entered into that certain Security
Agreement dated _______________________; and
WHEREAS Secured Party and Crescent hereby desire to modify the terms of the
Security Agreements referenced above (collectively the "Security Agreements").
Now therefore, for good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, Secured Party and Crescent agreed that the
following terms shall be incorporated into the Security Agreements as if
originally set forth therein:
1. Definitions. As used herein, the following terms have the following meanings:
"GAAP" means generally accepted accounting principles, applied on a
consistent basis, as set forth in opinions of the Accounting Principles
Board of the American Institute of Certified Public Accountants and/or
in statements of the Financial Accounting Standards Board and/or their
respective successors and which are applicable in the circumstances as
of the date in question. Accounting principles are applied on a
"consistent basis" when the accounting principles observed in a current
period are comparable in all material respects to those accounting
principles applied in a preceding period.
"Minimum Tangible Net Worth" means a Tangible Net Worth that is the
greater of Twenty Million and no/dollars ($20,000,000) or 80% of the
internal credit limit established by Secured Party for wholesale and
fleet and rental as set forth in that certain letter dated 1/19/99,
from Secured Party to Crescent, which letter is attached hereto as
Exhibit 1 and incorporated herein by reference.
"Tangible Net Worth" means, at any particular time, all amounts which,
in conformity with GAAP, would be included as stockholders' equity on a
balance sheet of Crescent; provided, however, there shall be excluded
therefrom: (a) any amount at which shares of capital stock of Crescent
appear as an asset on Crescent's balance sheet, (b) goodwill, including
any amounts, however designated, that represent the excess of the
purchase price paid for assets or stock over the value assigned
thereto, (c) patents, trademarks, trade names, and
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copyrights, (d) deferred expenses, (e) loans and advances to any
stockholder, director, officer, or employee of Crescent or any
Subsidiary or any Affiliate, and (f) all other assets which are
properly classified as intangible assets.
2. Tangible Net Worth Covenant. Crescent will at all times, during the term of
any of the Security Agreements, maintain a Tangible Net Worth in an amount not
less than the Minimum Tangible Net Worth. If at any time the Tangible Net Worth
of Crescent falls below the Minimum Tangible Net Worth, Crescent shall, within
30 days thereof, either increase its Tangible Net Worth to an amount not less
than the Minimum Tangible Net Worth or reduce the amount of Crescent's
outstandings under the Security Agreements to an amount which is less than
Crescent's Tangible Net Worth. Commensurate with any such reduction in
Crescent's outstandings under the Security Agreements, Secured Party may in its
sole discretion, and as otherwise outlined in Exhibit I, adjust its internal
credit limits to reflect an amount not in excess of Crescent's then Tangible Net
Worth. If the Tangible Net Worth of Crescent thereafter increases, Associates
may, in its sole discretion, elect to increase Crescent's internal credit
limits.
3. Reporting Requirements. Crescent will furnish to Secured Party:
a. Annual Financial Statements. As soon as available, and in any
event within one hundred eighty (180) days after the end of
each fiscal year of Crescent, beginning with the fiscal year
ending December 31, 1998, (i) a copy of the annual audit
report of Crescent for such fiscal year containing, on a
consolidated basis, balance sheets, statements of income,
statements of retained earnings, statements of changes in
financial position, and cash flows as at the end of such
fiscal year and for the 12-month period then ended, in each
case setting forth in comparative form the figures for the
preceding fiscal year, all in reasonable detail and audited
and certified by Xxxxx Xxxxx or other independent certified
public accountants of recognized standing acceptable to
Secured Party, to the effect that such report has been
prepared in accordance with GAAP; and (ii) a certificate from
the Vice President of Finance of Crescent to Secured Party (A)
stating that to their knowledge no event of default and no
event which with notice or lapse of time or both would be an
event of default has occurred and is continuing, or if in
their opinion an event of default or such event has occurred
and is continuing, a statement as to the nature thereof, and
(13)confirming the calculations set forth in the officer's
certificate delivered simultaneously therewith;
b. Quarterly Financial Statements. As soon as available, and in
any event within thirty (30) days after the end of each
calendar quarter a copy of an unaudited financial report of
Crescent as of the end of such calendar quarter and for the
portion of the fiscal year then ended, containing, on a
consolidated basis, balance sheets, statements of income,
statements of retained earnings, statements of changes in
financial position, and cash flows, in each case setting forth
in comparative form the figures for the corresponding period
of the preceding fiscal year, all in reasonable detail
certified by the Vice President of Finance of Crescent to have
been prepared in accordance with
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GAAP and to fairly and accurately present (subject to year-end
audit adjustments) the financial condition and results of
operations of Crescent, on a consolidated basis, at the date
and for the periods indicated therein;
c. General Information. Promptly, such other information
concerning Crescent as Secured Party may from time to time
reasonably request.
All terms not specifically defined herein shall have the same meanings as forth
in the respective Crescent Security Agreements.
Crescent and Secured Party acknowledge and agree that (i) the Security
Agreements as amended hereby do not obligate Crescent to borrow any monies from
Secured Party and do not obligate Secured Party to advance fluids to Crescent
and that (ii) the Secured Party's internal guidelines are one of many factors
considered by Secured Party when reviewing a specific request for an advance to
Crescent. The guidelines are not a commitment by Secured Party to make any
particular advance. Crescent further represents and warrants to Secured Party
that Western is a wholly owned subsidiary of Crescent.
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CONTINUING GUARANTY
For Valuable Consideration, the receipt and sufficiency of which is hereby
acknowledged, the undersigned, for themselves, their heirs, executors, personal
representatives, successors and assigns (individually called "Guarantor" end
collectively called "Guarantors") jointly and severally and in solido, hereby
unconditionally guarantee to Associates Commercial Corporation, its successors,
endorsees end assigns, (collectively called "Associates") that Western Traction
Company (the "Company") whose address is 0000 Xxxxxxxx Xxxxxx, Xxxxx Xxxx, XX
00000 shall promptly and fully perform, pay and discharge all of its present and
future liabilities, obligations and indebtedness to Associates, whether direct
or indirect, joint or several, absolute or contingent, secured or unsecured,
matured or unmatured, and whether originally contracted with or otherwise
acquired by Associates (all of which liabilities, obligations and indebtedness
are herein individually and collectively called the "Indebtedness"). This
Guaranty is an absolute and unconditional guarantee of payment and not of
collectibility. The liability of each Guarantor hereunder is not conditional or
contingent upon the genuineness, validity, sufficiency or enforceability of the
Indebtedness or any instruments, agreements or chattel paper related thereto
(collectively called "Agreements") or any security or collateral therefor
(collectively called "Security") or the pursuit by Associates of any rights or
remedies which it now has or may hereafter have. If the Company fails to pay the
indebtedness promptly as the same becomes due, or otherwise fails to perform any
obligation under any of the Agreements, each Guarantor agrees to pay on demand
the entire Indebtedness and all losses, costs, attorneys' fees and expenses
which may be suffered by Associates by reason of the Company's default or the
default of any Guarantor hereunder, and agrees to be bound by and to pay on
demand any deficiency established by the sale of any of the Agreements or
Security, all without relief from valuation and appraisement laws and without
requiring Associates to (i) proceed against the Company by suit or otherwise,
(ii) foreclose, proceed against, liquidate or exhaust any of the Agreements or
Security, or (iii) exercise, pursue or enforce any right or remedy Associates
may have against the Company, any co-Guarantor (whether hereunder or under a
separate instrument) or any other party. Each Guarantor agrees that: this
Guaranty shall not be discharged or affected by any circumstances which
constitute a legal or equitable discharge of a Guarantor or surety, or by the
death of any Guarantor; the records of Associates shall be received as
conclusive evidence of the amount of the Indebtedness at any time owing; one or
more successive or concurrent suits may be brought and maintained against any or
all of the Guarantors, at the option of Associates, with or without joinder of
the Company or any of the other Guarantors as parties thereto; such Guarantor
will not avail itself of any defense whatsoever which the Company may have
against Associates, other than full payment of the Indebtedness; and such
Guarantor will not seek a change of venue from any jurisdiction or court in
which any action, proceeding or litigation is commenced.
EACH GUARANTOR HEREBY WAIVES NOTICE OF ANY ADVERSE CHANGE IN THE COMPANY'S
CONDITION OR OF ANY OTHER FACT WHICH MIGHT MATERIALLY INCREASE SUCH GUARANTOR'S
RISK, WHETHER OR NOT ASSOCIATES HAS KNOWLEDGE OF THE SAME. EACH GUARANTOR ALSO
HEREBY WAIVES ANY CLAIM, RIGHT OR REMEDY WHICH SUCH GUARANTOR MAY NOW HAVE OR
HEREAFTER ACQUIRE AGAINST THE COMPANY THAT ARISES HEREUNDER AND/OR FROM THE
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PERFORMANCE BY ANY GUARANTOR HEREUNDER INCLUDING, WITHOUT LIMITATION, ANY CLAIM,
REMEDY OR RIGHT OF SUBROGATION, REIMBURSEMENT, EXONERATION, CONTRIBUTION,
INDEMNIFICATION, OR PARTICIPATION IN ANY CLAIM, RIGHT OR REMEDY OF ASSOCIATES
AGAINST THE COMPANY OR ANY SECURITY WHICH ASSOCIATES NOW HAS OR HEREAFTER
ACQUIRES; WHETHER OR NOT SUCH CLAIM, RIGHT OR REMEDY ARISES IN EQUITY, UNDER
CONTRACT, BY STATUTE, UNDER COMMON LAW OR OTHERWISE.
No termination hereof shall be effective until the Guarantors deliver to
Associates a written notice signed by them electing not to guarantee any new
extension of credit that may be granted by Associates to the Company after its
receipt of such notice, but such notice shall not effect the obligations of the
guarantors hereunder as to any and all Indebtedness existing at the time such
notice is received. Each Guarantor hereby waives (i) notice of acceptance hereof
and notice of extensions of credit given by Associates to the Company from time
to time; (ii) presentment, demand, protest, and notice of non-payment or protest
as to any note or other evidence of indebtedness signed, accepted, endorsed or
assigned to Associates by the Company, (iii) all exemptions and homestead laws;
(iv) any other demands and notices required by law; and (v) any right to trial
by jury. Associates may at any time and from time to time, without notice to or
the consent of any Guarantor, and without affecting or impairing the obligation
of any Guarantor hereunder; (a) renew, extend or refinance any part or all of
the Indebtedness of the Company or any Indebtedness of its customers, or of any
co-Guarantor (whether hereunder or under a separate instrument) or any other
party; (b) accept partial payments of the Indebtedness and apply such payments
to any part of the Indebtedness; (c) settle, release (by operation of law or
otherwise), compound, compromise, collect or liquidate, in any manner, any of
the Indebtedness, any Security, or any Indebtedness of any Guarantor (whether
hereunder or under a separate instrument) or any other party; (d) consent to the
transfer of any Security; (e) bid end purchase at any sale of any of the
Agreements or Security; and (f) exercise any and all rights and remedies
available to Associates by law or agreement even if the exercise thereof may
affect, modify or eliminate any rights or remedies which a Guarantor may have
against the Company. Each Guarantor shall continue to be liable under this
Guaranty, the provisions hereof shall remain in full force and effect, and
Associates shall not be estopped from exercising any rights hereunder,
notwithstanding (i) Associates waiver of or failure to enforce any of the terms,
covenants or conditions contained in any of the Agreements; (iii) any release
of, or failure on the part of Associates to perfect any security interest in or
foreclose, proceed against, or exhaust, any Security; or (iii) Associates
failure to take new, additional or substitute security or collateral for the
Indebtedness.
Each Guarantor agrees that Associates may bring any legal proceedings it deems
necessary to enforce any or all of such Guarantor's obligations hereunder in any
court in the State in which Associates' office administering the Indebtedness is
located; and service of process may be made upon such Guarantor by mailing a
copy of the summons to such Guarantor at its address last known to Associates.
All rights and remedies of Associates are cumulative and not alternative. Each
provision of this Guaranty is intended to be severable. Any term or provision
hereof declared to be contrary to, prohibited by or invalid under applicable
laws or regulations shall be inapplicable and deemed omitted herefrom, but shall
not invalidate the remaining terms and provisions hereof.
IN WITNESS WHEREOF, the Guarantors have executed this Guaranty on 08/10/98.
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Schedule A
Attached to and made a part of a Uniform Commercial Code Financing Statement
Form UCC-1 between Associates Commercial Corporation as Secured Party and
Western Traction Company as Debtor.
All of the Debtor's new and used inventory and equipment which is financed by
Secured Party or against which Secured Party has advanced monies and for which
Secured Party has not been paid in full, whether now owned or hereafter acquired
by Debtor, together with all present and future attachments, accessories,
exchanges, repairs, and additions thereto, and all chattel paper, documents,
general intangibles, instruments, accounts and contract rights now existing or
hereafter arising with respect to any thereof, and all cash and non-cash
proceeds of any of the foregoing.
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