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Exhibit 10.56
MASTER SECURITY AGREEMENT
NO. RG99
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1. GRANT OF SECURITY INTEREST; DESCRIPTION OF COLLATERAL.
Debtor grants to Secured Party a security interest in the property described in
the Schedules of indebtedness and Collateral now or hereafter executed by or
pursuant to the authority of the Debtor and accepted by Secured Party in
writing (collectively the "Schedules"), along with any present and future
attachments and accessories thereto and replacements and proceeds thereof,
including amounts payable under any insurance policy, all hereinafter referred
to collectively as "Collateral." Each Schedule shall be serially numbered.
Unless and only to the extent otherwise expressly provided in a schedule, no
Schedule shall replace any previous Schedule but shall be supplementary to al
previous Schedules.
2. WHAT OBLIGATIONS THE COLLATERAL SECURES.
EACH ITEM OF COLLATERAL SHALL SECURE NOT ONLY THE SPECIFIC AMOUNT WHICH DEBTOR
PROMISES TO PAY IN EACH SCHEDULE, BUT ALSO ALL OTHER PRESENT AND FUTURE
INDEBTEDNESS OR OBLIGATIONS OF DEBTOR TO SECURED PARTY OF EVERY KIND AND NATURE
WHATSOEVER.
3. PROMISE TO PAY; TERMS AND PLACE OF PAYMENT
Debtor promises to pay Secured Party the amounts set forth on each Schedule at
the rate and upon such terms as provided therein.
4. USE AND LOCATION OF COLLATERAL.
Debtor warrants and agrees that the Collateral is to be used primarily for:
X business or commercial purposes (other than agricultural),
X agricultural purposes (see definition on the final page), or
X both agricultural and business or commercial purposes
Location: 0000 XXXXXXXXX XX. XX. XXXXXXX XXXXX XX 00000
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Address City County State Zip Code
Debtor and Secured Party agree that regardless of the manner of affixation, the
Collateral shall remain personal property and not become part of the real
estate. Debtor agrees to keep the Collateral at the location set forth above,
and will notify Secured Party promptly in writing of any change in the location
of the Collateral within such State, but will not remove the collateral from
such State without the prior written consent of Secured Party (except that in
the State of Pennsylvania, the Collateral will not be moved from the above
location without such prior written consent.
5. LATE CHARGES AND OTHER FEES.
Any payment not made when due shall, at the option of Secured Party, bear late
charges thereon calculated at the rate of 1 1/2% per month, but in no event
greater than the highest rate permitted by relevant law. Debtor shall be
responsible for and pay to Secured Party a returned check fee, not to exceed
the maximum permitted by law, which fee will be equal to the sum of (i) the
actual bank charges incurred by Secured Party plus (ii) all other actual costs
and expenses incurred by Secured Party. The returned check fee is payable upon
demand as indebtedness secured by the Collateral under this Security Agreement
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6. DEBTOR'S WARRANTIES AND REPRESENTATIONS.
Debtor warrants and represents:
(a) that Debtor is justly indebted to Secured Party for the full amount of the
indebtedness set forth on each Schedule;
(b) that except for the security interest granted hereby, the Collateral is
free from and will be kept free from all liens, claims, security Interests
and encumbrances;
(c) that no financing statement covering the Collateral or any proceeds
thereof is on file in favor of anyone other than Secured Party, but if
such other financing statement is on file, it will be terminated or
subordinated;
(d) that all information supplied and statements made by Debtor in any
financial, credit or accounting statement or application for credit prior
to, contemporaneously with or subsequent to the execution of this Security
Agreement with respect to this transaction are and shall be true, correct,
valid and genuine; and
(e) that Debtor has full authority to enter into this agreement and in so
doing it is not violating its charter or by-laws, any law or regulation or
agreement with third parties, and it has taken all such action as may be
necessary or appropriate to make this Security Agreement binding upon it.
7. DEBTOR'S AGREEMENTS.
Debtor agrees:
(a) to defend at Debtor's own cost any action, proceeding, or claim affecting
the Collateral;
(b) to pay reasonable attorneys' fees (at least 15% of the unpaid balance if
not prohibited by law) and other expenses incurred by Secured Party in
enforcing its rights against Debtor under this Security Agreement
(c) to pay promptly all taxes, assessments, license fees and other public or
private charges when levied or assessed against the Collateral or this
Security Agreement and this obligation shall survive the termination of
this Security Agreement;
(d) that if a certificate of title be required or permitted by law, Debtor
shall obtain such certificate with respect to the Collateral, showing the
security interest of Secured Party thereon and in any event do everything
necessary or expedient to preserve or perfect the security interest of
Secured Party;
(e) that Debtor will not misuse, fail to keep in good repair, secrete or
without the prior written consent of Secured Party, sell, rent, lend,
encumber or transfer any of the Collateral notwithstanding Secured Party's
right to proceeds;
(f) that Secured Party may enter upon Debtor's premises or wherever the
Collateral may be located at any reasonable time to inspect the Collateral
and Debtor's books and records pertaining to the Collateral, and Debtor
shall assist Secured Party In making such inspection; and
(g) that the security interest granted by Debtor to Secured Party shall
continue effective irrespective of any retaking or redelivery of any
Collateral and irrespective of the payment of the amount described in any
Schedule so long as there are any obligations of any kind, including
obligations under guaranties or assignments owed by Debtor to Secured
Party, provided, however, upon any assignment of this Security Agreement
the Assignee shall thereafter be deemed for the purpose of this Paragraph
the Secured Party under this Security Agreement
(h) Debtor shall indemnify and defend the Secured Party, its successors and
assigns, and their respective directors, officers and employees, from and
against any and all claims, actions and suits (including, without
limitation, related attorneys' fees) of any kind, nature or description
whatsoever arising, directly or indirectly, in connection with any of the
Collateral.
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8. INSURANCE AND RISK OF LOSS.
All risk of loss, damage to or destruction of the Collateral shall at all times
be on Debtor. Debtor will procure forthwith and maintain at Debtor's expense
insurance against all risks of loss or physical damage to the Collateral for
the full insurable value thereof for the life of this Security Agreement plus
breach of warranty Insurance and such other insurance thereon in amounts and
against such risks as Secured Party may specify, and shall promptly deliver
each policy to Secured Party with a standard long-form mortgagee endorsement
attached thereto showing loss payable to Secured Party; and providing Secured
Party with not less than 30 days written notice of cancellation; each such
policy shall be in form, terms and amount and with insurance carriers
satisfactory to Secured Party; Secured Party's acceptance of policies in lesser
amounts or risks shall not be a waive of Debtor's foregoing obligations. As to
Secured Party's interest in such policy, no act or omission of Debtor or any of
its officers, agents, employees or representatives shall affect the obligations
of the insurer to pay the full amount of any loss.
Debtor hereby assigns to Secured Party any monies which may become payable
under any such policy of insurance and irrevocably constitutes and appoints
secured Party as Debtor's attorney In fact (a) to hold each original insurance
policy, (b) to make, settle and adjust claims under each policy of Insurance,
(c) to make claims for any monies which may become payable under such and other
Insurance on the Collateral including returned or unearned premiums, and (d) to
endorse Debtor's name on any check, draft or other instrument received in
payment of claims or returned or unearned premiums under each policy and to
apply the funds to the payment of the indebtedness owing to Secured Party;
provided, however, Secured Party is under no obligation to do any of the
foregoing.
Should Debtor fail to furnish such insurance policy to Secured Party, or to
maintain such policy in full force, or to pay any premium in whole or in part
relating thereto, then Secured Party, without waiving or releasing any default
or obligation by Debtor, may (but shall be under no obligation to) obtain and
maintain insurance and pay the premium therefor on behalf of Debtor and charge
the premium to Debtor's indebtedness under this Security Agreement. The full
amount of any such premium paid by Secured Party shall be payable by Debtor
upon demand, and failure to pay same shall constitute an event of default under
this Security Agreement.
9. EVENTS OF DEFAULT; ACCELERATION.
A VERY IMPORTANT ELEMENT OF THIS SECURITY AGREEMENT IS THAT DEBTOR MAKE ALL ITS
PAYMENTS PROMPTLY AS AGREED UPON. IT IS ESSENTIAL THAT THE COLLATERAL REMAIN IN
GOOD CONDITION AND ADEQUATE SECURITY FOR THE INDEBTEDNESS. THE FOLLOWING ARE
EVENTS OF DEFAULT UNDER THIS SECURITY AGREEMENT WHICH WILL ALLOW SECURED PARTY
TO TAKE SUCH ACTION UNDER THIS PARAGRAPH AND UNDER PARAGRAPH 10 AS IT DEEMS
NECESSARY:
(a) any of Debtor's obligations to Secured Party under any agreement with
Secured Party is not paid promptly when due;
(b) Debtor breaches any warranty or provision hereof, or of any note or of any
other instrument or agreement delivered by Debtor to Secured Party in
connection with this or any other transaction;
(c) Debtor dies, becomes insolvent or ceases to do business as a going
concern;
(d) it is determined that Debtor has given Secured Party materially misleading
information regarding its financial condition,
(e) any of the Collateral is lost or destroyed;
(f) a complaint in bankruptcy or for arrangement or reorganization or for
relief under any insolvency law is filed by or against Debtor or Debtor
admits its inability to pay its debts as they mature;
(g) property of Debtor is attached or a receiver is appointed for Debtor;
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(h) whenever Secured Party in good faith believes the prospect of payment or
performance is impaired or in good faith believes the Collateral is
insecure;
(i) any guarantor, surety or endorser for Debtor dies or defaults in any
obligation or liability to Secured Party or any guaranty obtained in
connection with this transaction is terminated or breached.
IF DEBTOR SHALL BE IN DEFAULT HEREUNDER, THE INDEBTEDNESS DESCRIBED IN EACH
SCHEDULE AND ALL OTHER INDEBTEDNESS THEN OWING BY DEBTOR TO SECURED PARTY UNDER
THIS OR ANY OTHER PRESENT OR FUTURE AGREEMENT (COLLECTIVELY, THE
"INDEBTEDNESS") SHALL, IF SECURED PARTY SHALL SO ELECT BECOME IMMEDIATELY DUE
AND PAYABLE. After acceleration:
(a) the unpaid principal balance of the indebtedness described in any Schedule
in which interest has been precomputed shall bear interest at the rate of
18% per annum (or, if less, the maximum rate permitted by law) until paid
in full; and
(b) the unpaid principal balance of the indebtedness described in any Schedule
in which interest has not been precomputed shall bear interest at the same
rate as before acceleration until paid in full.
In no event shall the Debtor upon demand by Secured Party for payment of the
Indebtedness by acceleration of the maturity thereof or otherwise, be obligated
to pay any interest in excess of the amount permitted by law. Any acceleration
of the Indebtedness, if elected by Secured Party, shall be subject to all
applicable laws, including laws relating to rebates and refunds of unearned
charges.
10. SECURED PARTY'S REMEDIES AFTER DEFAULT; CONSENT TO ENTER PREMISES.
UPON DEBTOR'S DEFAULT AND AT ANY TIME THEREAFTER, SECURED PARTY SHALL HAVE ALL
THE RIGHTS AND REMEDIES OF A SECURED PARTY UNDER THE UNIFORM COMMERCIAL CODE
AND ANY OTHER APPLICABLE LAWS, INCLUDING THE RIGHT TO ANY DEFICIENCY REMAINING
AFTER DISPOSITION OF THE COLLATERAL FOR WHICH DEBTOR HEREBY AGREES TO REMAIN
FULLY LIABLE. DEBTOR AGREES THAT SECURED PARTY, BY ITSELF OR ITS AGENT MAY
WITHOUT NOTICE TO ANY PERSON AND WITHOUT JUDICIAL PROCESS OF ANY KIND, ENTER
INTO ANY PREMISES OR UPON ANY LAND OWNED, LEASED OR OTHERWISE UNDER THE REAL OR
APPARENT CONTROL OF DEBTOR OR ANY AGENT OF DEBTOR WHERE THE COLLATERAL MAY BE
OR WHEN SECURED PARTY BELIEVES THE COLLATERAL MAY BE, AND DISASSEMBLE, RENDER
UNUSABLE AND/OR REPOSSESS ALL OR ANY ITEM OF THE COLLATERAL, DISCONNECTING AND
SEPARATING ALL COLLATERAL FROM ANY OTHER PROPERTY AND USING ALL FORCE
NECESSARY. Debtor expressly waives all further rights to possession of the
Collateral after default and all claims for injuries suffered through or loss
caused by such entering and/or repossession. Secured Party may require Debtor
to assemble the Collateral and return it to Secured party at a place to be
designated by Secured Party which is reasonably convenient to both parties.
Secured Party may sell or Lease the Collateral at a time and location of its
choosing provided that the Secured Party acts In good faith and in a
commercially reasonable manner. Secured Party will give Debtor reasonable
notice of the time and place of any public sale of the Collateral or of the
time after which any private sale or any other intended disposition of the
Collateral is to be made. Unless otherwise provided by law, the requirement of
reasonable notice shall be met if such notice Is mailed, postage prepaid to the
address of Debtor shown herein at least ten days before the time of the sale or
disposition. Expenses of retaking, holding, preparing for sale, selling and the
like shall include reasonable attorneys' fees (at least 15% of the outstanding
principal balance if not prohibited by law) and other legal expenses. Debtor
understands that the Secured Party's rights are cumulative and not alternative.
11. WAIVER OF DEFAULTS; AGREEMENT INCLUSIVE.
Secured Party may in its sole discretion waive a default, or cure, at Debtor's
expense, a default. Any such waiver In a particular instance or of a particular
default shall not be a waiver of other defaults or the same kind of default at
another time. No modification or change in this Security Agreement or any
related note, instrument or agreement shall bind Secured Party unless in
writing signed Secured Party. No oral agreement shall be binding.
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12. FINANCING STATEMENTS; CERTAIN EXPENSES.
If permitted by law, Debtor authorizes Secured Party to file a financing
statement with respect to the Collateral signed only by Secured Party, and to
file a carbon, photograph or other reproduction of this Security Agreement or
of financing statement. At the request of Secured Party, Debtor will execute
any financing statements, agreements or documents, in form satisfactory to
Secured Party which Secured Party may deem necessary or advisable to establish
and maintain a perfected security interest in the Collateral and will pay the
cost of filing or recording the same In all public offices deemed necessary or
advisable by Secured Party. Debtor also agrees to pay all costs end expenses
incurred by Secured Party in conducting UCC, tax or other lien searches against
the Debtor or the Collateral and such other fees as may be agreed.
13. WAIVER OF DEFENSES ACKNOWLEDGMENT
If Secured Party assigns this Security Agreement to a third party (?Assignee?),
then after such assignment:
(a) Debtor will make all payments directly to such Assignee at such place as
Assignee may from time to time designate in writing;
(b) Debtor agrees that it will settle all claims, defenses, setoffs and
counterclaims it may have against Secured Party directly with Secured
Party and will not set up any such claim, defense, setoff or counterclaim
against Assignee, Secured Party hereby agreeing to remain responsible
therefor;
(c) Secured Party shall not be Assignee's agent for any purpose and shall have
no authority to change or modify this Security Agreement or any related
document or instrument; and
(d) Assignee shall have all of the rights and remedies of Secured Party
hereunder but none of Secured Party's obligations.
14. MISCELLANEOUS.
Debtor waives all exemptions. Secured Party may correct patent errors herein
and fill in such blanks as serial numbers, date of first payment and the like.
Any provisions hereof contrary to, prohibited by or invalid under applicable
laws or regulations shall be inapplicable and deemed omitted herefrom, but
shall not invalidate the remaining provisions hereof.
This Security Agreement shall be governed by and shall be interpreted
pursuant to the laws of the State of Utah. DEBTOR HEREBY UNCONDITIONALLY WAIVES
ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR
ARISING OUT OF, DIRECTLY OR INDIRECTLY. THIS SECURITY AGREEMENT, ANY OF THE
RELATED DOCUMENTS, ANY DEALINGS BETWEEN DEBTOR AND SECURED PARTY (OR ANY
ASSIGNEE OF SECURED PARTY) RELATING TO THE SUBJECT MATTER OF THIS TRANSACTION
OR ANY RELATED TRANSACTIONS, AND/OR THE RELATIONSHIP THAT IS BEING ESTABLISHED
BETWEEN DEBTOR AND SECURED PARTY (OR ITS ASSIGNEE). THE SCOPE OF THIS WAIVER IS
INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN
ANY COURT (INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, BREACH
OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS). THIS WAIVER IS
IRREVOCABLE MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING,
AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS
OR MODIFICATIONS TO THIS SECURITY AGREEMENT, ANY RELATED DOCUMENTS, OR TO ANY
OTHER DOCUMENTS OR AGREEMENTS RELATING TO THIS TRANSACTION OR ANY RELATED
TRANSACTION. IN THE EVENT OF LITIGATION, THIS SECURITY AGREEMENT MAY BE FILED
AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
Debtor shall have no right to prepay the indebtedness described in any
Schedule. DEBTOR ACKNOWLEDGES RECEIPT OF A TRUE COPY AND WAIVES ACCEPTANCE
HEREOF.
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If Debtor is a corporation, this Security Agreement is executed pursuant to
authority of its Board of Directors. Except where the context otherwise
requires, "Debtor" and "Secured Party" include the heirs, executors or
administrators, successors or assigns of those parties; nothing herein shall
authorize Debtor to assign this Security Agreement or its rights in and to the
Collateral. If more than one Debtor executes this Security Agreement, their
obligations under this Security Agreement shall be joint and several,
If at any time this transaction would be usurious under applicable law, then
regardless of any provision contained in this Security Agreement or in any
other agreement made in connection with this transaction, it is agreed that:
(a) the total of all consideration which constitutes interest under applicable
law that is contracted for, charged or received upon this Security
Agreement or any such other agreement shall under no circumstances exceed
the maximum rate of interest authorized by applicable law and any excess
shall be credited to the Debtor; and
(b) If Secured Party elects to accelerate the maturity of, or if Secured Party
permits Debtor to prepay the indebtedness described in Paragraph 3, any
amounts which because of such action would constitute interest may never
include more than the maximum rate of interest authorized by applicable
law and any excess interest, if any, provided for in this Security
Agreement or otherwise, shall be credited to Debtor automatically as of
the date of acceleration or prepayment.
15. SPECIAL PROVISIONS.
See Special Provisions Instructions.
DATED:
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DEBTORS:
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ROADHOUSE GRILL, INC.
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By
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Title
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SECURED PARTY:
PACIFIC FINANCIAL COMPANY BY PFR MANAGEMENT, INC. GENERAL PARTNER
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000 X. Xxxxx Xxxxxx, #000
Xxxx Xxxx Xxxx, XX 00000
By Title
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If Debtor is a partnership, enter:
PARTNERS' NAMES HOME ADDRESSES
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NOTICE: DO NOT USE THIS FORM FOR TRANSACTIONS FOR PERSONAL, FAMILY OR HOUSEHOLD
PURPOSES. FOR AGRICULTURAL AND OTHER TRANSACTIONS SUBJECT TO FEDERAL OR STATE
REGULATIONS, CONSULT LEGAL COUNSEL TO DETERMINE DOCUMENTATION REQUIREMENTS.
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AGRICULTURAL PURPOSES generally means farming, including dairy farming, but it
also includes the transportation, harvesting, and processing of farm, dairy, or
forest products if what is transported, harvested, or processed is farm, dairy,
or forest products grown or bred by the user of the equipment itself. It does
not apply, for instance, to a logger who harvests someone else's forest, or a
contractor who prepares land or harvests products on someone else's farm.
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SPECIAL PROVISIONS INSTRUCTIONS - THE NOTATIONS TO BE ENTERED IN THE SPECIAL
PROVISIONS SECTION OF THIS DOCUMENT FOR USE IN ALABAMA, FLORIDA, GEORGIA,
IDAHO, NEVADA, NEW HAMPSHIRE, OREGON, SOUTH DAKOTA AND WISCONSIN ARE SHOWN IN
THE APPLICABLE STATE PAGES OF THE LOANS AND MOTOR VEHICLES MANUAL.
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SCHEDULE NO. 1
Schedule of Indebtedness and Collateral
Attached to and made a part of Master Security Agreement No. RG99 dated _______,
between the undersigned Secured Party and Debtor.
The equipment listed on this Schedule will be located at:
0000 XXXXXXXXX XX. XX. XXXXXXX XX 00000
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Address City State Zip Code
Debtor grants to Secured Party a security interest in the property described
below, along with all present and future attachments and accessories thereto
and replacements and proceeds thereof, including amounts payable under any
insurance policy, all hereinafter referred to collectively as "Collateral".
Collateral Description (Describe Collateral fully including make, kind of unit,
model and serial numbers and any other pertinent information,)
All Furniture, Fixtures and Equipment now owned, in existence or
hereafter acquired, located at 0000 Xxxxxxxxx Xx. Xx., Xxxxxxx, XX
00000, including but not limited to the property more fully described
on Exhibit A
attached hereto and
made a part hereof, together with all additions, attachments and
replacements thereto and proceeds thereof, including without
limitation, insurance proceeds.
Debtor promises to pay Secured Party the total sum $ 569,174.85 which
represents principal and interest precomputed over the term hereof, payable in
60 COMBINED PRINCIPAL AND INTEREST PAYMENTS of $ 8,750.56 each and a balloon
payment of $ 44,141.25 commencing on 1/15/99 and a like sum on a like date each
month thereafter until fully paid, provided however, that the final payment
shall be in the amount of the unpaid balance and interest. Payment shall be
made at the address of Secured Party shown on the Master Security Agreement or
such other place as Secured Party may designate from time to time.
See Special Provisions instructions below.
ACCEPTED
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SECURED PARTY:
Pacific Financial Company
by PFR Management, Inc. General Partner
By Title
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EXECUTED ON
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DEBTOR:
ROADHOUSE GRILL, INC.
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Name of individual, corporation or partnership
By Title
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