EXHIBIT 10.21
XXXXX COUNTY BANK & TRUST CO. D W LEASING COMPANY, LLC KJW / DFS
000 X XXXX XX XXXXX XXXXXXXXX PRESIDENT Loan Number 18999
P0 BOX 000 000 XXXXXXXXX XXXX Xxxx
XXXXX XX 00000 TUPELO MS 38801 Maturity Date
LENDER'S NAME AND ADDRESS Loan Amount $
"You" means the Lender, its BORROWER'S NAME AND Renewal of
successors and assigns. ADDRESS
"I" includes each Borrower
above, jointly and
severally.
TERMS FOLLOWING A APPLY ONLY IF CHECKED
NOTE - For value received, I promise to pay to you, or your order, at your
address above, the principal sum of: -----------------------------------------
Dollars $
plus Interest from at the rate of % per year until ---------- .
ADDITIONAL FINANCE CHARGE - I also agree to pay a nonrefundable service charge
of $ __ , and it will be __ paid in cash. __ paid pro rata over the loan term.
__ withheld from the proceeds. (If this fee is withheld from the proceeds, the
amount is included in the principal sum.)
PAYMENT - I will pay this note as follows:
(a) ___ Interest due:
Principal due:
(b) _X_ This note has payments. The first payment will be in
the amountof $ and will be due
A payment of $ will be due on the day of each MONTH
thereafter.
The final payment of the entire unpaid balance of principal and interest
will be due .
INTEREST - Interest accrues on a [X] P0ST-MATURITY INTREST. Interest will
360/ACTUAL basis accrue at the rate of _______ per
[ ]MINIMUM INTEREST CHARGE - I agree year on the balance of this note not
to pay a minimum interest charge of paid at maturity, including maturity by
$ ______________ if I pay this loan acceleration
off before you have earned that much
[X] LATE CHARGE - I agree to pay a 7.00% ABOVE YOUR CURRENT CONTRACT RATE
late charge on any payment made more ON ANY AMOUNT 30 DAYS PAST DUE
than 10 days after it is due
equal to 5% of the payment, or THE PURPOSE OF THIS LOAN IS -
$10.00, whichever is greater.
SECURITY - You have certain rights that may affect my property As explained on
page 2. This loan [ ] is [X] is not further secured.
(a) This loan is secured by , dated .
(b) [X} Security Agreement - I give you a security interest in the Property
described below. The rights I am giving you in this Property and the
obligations this agreement secures are defined on page 2 of this agreement.
This Property will be used for BUSINESS purposes.
ANNUAL PERCENTAGE RATE FINANCE CHARGE AMOUNT FINANCED TOTAL OF PAYMENTS I have the right to
The cost of my credit The dollar amount The amount of credit The amount I will have receive at this time an
as a yearly rate. the provided to me or on my paid when I have made itemization of the
credit will cost me. behalf. all scheduled payments. Amount Financed.
% YES - I want
$ $ $ an itemization.
NO
-
I
do
not
want
an
itemization.
My Payment Schedule will
be:
Number of Payments Amount of Payments When Payments Are Due
"e"
means an estimate
$________ Filing Fees
$________ Nonfiling Insurance
1[ ]This note has a demand feature. [ ]This note is payable on demand end all
disclosures are based on an assumed maturity of one year.
Security - I am giving a security interest in:
[ ] the goods or property being purchased.
[X] the goods or property being purchased. 2001 PREVOST COACH
[ ] collateral securing other loans with you may also secure this loan.
[ ] my deposit accounts and other rights to the payment of money from you.
[X] Late Charge - I will be charged a late charge on any payment made more than
10 day, after It is due equal to 5% of the payment, or *10.00, whichever is
greater.
[ ] Required Deposit - The annual percentage rate does not take Into account my
required deposit.
Prepayment - If I pay off this note early, I
[ ] may [X] will not have to pay a penalty.
[ ] may [X] will not be entitled to a refund of part of the
finance charge
[X] ~Assumption -Someone buying the property securing this obligation cannot
assume the remainder of the obligation on the original terms. I can see my
contract documents for any additional Information about nonpayment, default, any
required repayment before the scheduled date, and prepayment refunds arid
penalties.
CREDIT INSURANCE - Credit life Insurance and credit disability Insurance are not
reqired to obtain credit, and will not be provided unless I agree to pay the
additional premiums
ITEMIZATION OF AMOUNT FINANCED
AMOUNT GIVEN TO ME DIRECTLY $------------------
AMOUNT PAID ON MY (LOAN) ACCOUNT
Type Premium Term __________________________ $ -----------------
Credit Life AMOUNTS PAID TO OTHERS ON MY BEHALF:
Credit Disability Insurance Premiums $ -----------------
Joint Credit Life to Public Officials$ ------------------
------------------------------- ---------------------- $-----------------
I [ ] do [X} do not want credit life Insurance. $-----------------
I [ ] do [X} do not want credit disability insurance. $-----------------
I [ ] do [X} do not want joint credit life insurance.
(less) PREPAID FINANCE CHARGE(S)$-----------------
I [ ] do _________________________________________________ insurance.
X Amount Financed $
X (You are retaining a portion of the
Items marked above with an asterisk)
(Add all items financed and subtract
prepaid finance charges.)
PROPERTY INSURANCE - I may obtain property Insurance from anyone I want that
is acceptable to you. if I get the insurance from or through you I will pay $
______________________ for __________________________ of coverage.
INTEREST INSURANCE - I may obtain a single interest insurance from _________
Is acceptable to you. If I get the insurance from anyone I want or through you
I will pay $_______ for ____________ of coverage.
(optional)
SIGNATURES. IAGREE TO THE TERMS SET OUT ON PAGE 1 SINGLE AND
PAGE 2 OF THIS AGREEMENT. I HAVE RECEIVED A COPY OF THIS
DOCUMENT ON TODAY'S DATE.
COSIGNERS - SEE NOTICE ON PAGE 2 BEFORE SIGNING.
Signature--------------------------------------
D W LEASING COMPANY, LLC
Signed _____________________________
Title XXXXX XXXXXXXX~ PRESIDENT
Signature-------------------------------------
XXXXX XXXXXXXXX PRESIDENT
ADDITIONAL TERMS OF THE NOTE
DEFINITIONS - "I," "me" or "my' means each Borrower who signs this note and each
other person or legal entity (including guarantors, endorser,, and sureties) who
agrees to pay this note (together referred to as "us"). "You" or `your' means
the Lender and its successor, and assigns.
APPLICABLE LAW - This note and any agreement securing this note will be governed
by the laws of the state of Illinois. The federal Truth-in-Lending disclosures
on page 1 are disclosures only and are not intended to be terms of this
agreement. The fact that any part of this note cannot be enforced will not
affect the rest of this note. Any change to this note or any agreement securing
this note must be in writing and signed by you and me. PAYMENTS - Each payment I
make on this loan will be applied first to any charge. I owe other than
principal and interest, then to interest that is due, and finally to principal
that is due. No late charge will be assessed on any payment when the only
delinquency is due to late fees assessed on earlier payments and the payment is
otherwise a full payment. The actual amount of my final payment will depend on
my payment record.
I understand and agree that some payments to third parties as a part of
this contract may involve money retained by you or paid back to you as
commissions or other remuneration.
PREPAYMENT - I may prepay this loan in whole or in part at any time. If I prepay
in part, I must still make each later payment in the original amount as it
becomes due until this note is paid in full.
ACCRUAL METHOD - The amount of interest that I will pay on this loan will
be calculated using the interest rate and accrual method stated on page 1. For
interest calculation, the accrual method will determine the number of days in a
year. if no accrual method is stated, than you may use any accrual method for
calculating interest allowed by law.
POST-MATURITY INTEREST - Interest will accrue on the principal balance remaining
unpaid after final maturity at the rate specified on page 1. For purposes of
this section, final maturity occurs: (a) If this loan is payable on demand, on
the date you make demand for payment; (b) If this loan is payable on demand with
alternate payment date(s), on the date you make demand for payment or on the
final alternate payment date, whichever is earlier; (c) On the date of the last
scheduled payment of principal; or (d) On the date you accelerate the due date
of this loan (demand immediate payment).
REAL ESTATE OR RESIDENCE SECURITY - If this loan is secured by real estate or a
residence that is personal property, the existence of a default and your
remedies for such a default will be determined by applicable law, by the terms
of any separate instrument creating the security Interest and, to the extent not
prohibited by law end not contrary to the terms of the separate security
Instrument, by this agreement.
DEFAULT - Subject to any limitations in the "REAL ESTATE OR RESIDENCE SECURITY"
paragraph above, I will be in default on this loan and any agreement securing
this loan if any one or more of the following occurs:
(a) I fail to make a payment in lull when due;
(b) I die, am declared Incompetent, or become insolvent;
(c) I fail to keep any promise I have made in connection with this loan;
(d) I fail to pay, or keep any other promise on, any other loan or agreement I
have with you;
(e) I make any written statement or provide any financial information that is
untrue or inaccurate at the time it is provided;
(f) Any creditor of mine attempts to collect any debt I owe through court
proceedings, set-off or self-help repossession;
(g) The Property Is damaged, destroyed or stolen;
(h) I fail to provide any additional security that you may require;
(i) Any legal entity (such as a partnership or corporation) that has agreed to
pay this note merges, dissolves, reorganizes, ends its business or
existence, or a partner or majority stockholder dies or is declared
incompetent; or
(j) Anything else happens that causes you to believe that you will have
difficulty collecting the amount I owe you. If any of us are In default on
this note or any security agreement, you may exercise your remedies against
any or all of us.
REMEDIES - Subject to any limitations In the `REAL ESTATE OR
RESIDENCE SECURITY' paragraph above, if I am In default on this loan or any
agreement securing this loan, you may:
(a) Make unpaid principal, earned interest and all other agreed charges I owe
you under this loan immediately due;
(b) Use the right of set-off as explained below;
(c) Demand more security or new parties obligated to pay this loan (or both) in
return for not using any other remedy;
(d) Make a claim for any and all insurance benefits or refunds that may be
available on my default;
(e) Use any remedy you have under state or federal law; and
(f) Use any remedy given to you In any agreement securing this loan.
By choosing any one or more of these remedies you do not give up your right
to use another remedy later. By deciding not to use any remedy should I be in
default, you do not give up your right to consider the event a default if it
happens again.
COSTS OF COLLECTION AND ATTORNEYS' FEES - I agree to pay you all reasonable
costs you incur to collect this debt or realize on any security. This includes,
unless prohibited by law, reasonable attorneys' fees. This provision also shall
apply ill file a petition or any other claim for relief under any bankruptcy
rule or law of the United States, or if such petition or other claim for relief
is filed against me by another.
SET-OFF - I agree that you may set off any amount due end payable under this
note against any right I have to receive money from you. "Right to receive money
from you" means:
(a) Any deposit account balance I have with you;
(b) Any money owed to me on an item presented to you or in your possession I or
collection or exchange; and
(c) Any repurchase agreement or other nondeposit obligation.
"Any amount due and payable under this note" means the total amount of
which you are entitled to demand payment under the terms of this note at the
time you set off. This total includes any balance the due date for which you
properly accelerate under this note.
If my right to receive money from you is also owned by someone who has not
agreed to pay this note, your right of set-off will apply to my interest in the
obligation and to any other amounts I could withdraw on my sole request or
endorsement. Your right of set-off does not apply to an account or other
obligation where my rights arise only in a representative capacity. it also does
not apply to any Individual Retirement Account or other tax-deferred retirement
account.
You will not be liable for the dishonor of any check when the dishonor
occurs because you set off this debt against any of my accounts. I agree to hold
you harmless from any such claims arising as a result of your exercise of your
right of set-off.
OTHER SECURITY - Any present or future agreement securing any other debt I owe
you also will secure the payment of this loan. Property securing another debt
will not secure this loan If such property is my principal dwelling and you fail
to provide any required notice of right of rescission. Also, property securing
another debt will not secure this loan to the extant such property is in
household goods.
OBLIGATIONS INDEPENDENT - I understand that my obligation to pay this loan is
independent of the obligation of any other person who has also agreed to pay it.
You may, without notice, release me or any of us, give up any right you may have
against any of us, extend new credit to any of us, or renew or change this note
one or more times and for any term, and I will still be obligated to pay this
loan. You may, without notice. I all to perfect your security interest in.
impair, or release any security and I will still be obligated to pay this loan.
XXXXXX - X xxxxx (to the extent permitted by law) demand, presentment, protest.
notice of dishonor and notice of protest.
PRIVACY - I agree that from time to time you may receive credit information
about me from others, including other lenders and credit reporting agencies. I
agree that you may furnish on a regular basis credit and experience Information
regarding my loan to others seeking such Information. To the extent permitted by
law, I agree that you will not be liable for any claim arising from the use of
Information provided to you by others or for providing such information to
others.
FINANCIAL STATEMENTS - I will give you any financial statements or information
that you feel is necessary. All financial statements and information I give you
will be correct end complete.
PURCHASE MONEY LOAN - If this is a purchase money loan, you may include the name
of the seller on the check or draft for this loan.
ADDITIONAL TERMS OF THE SECURITY AGREEMENT
SECURED OBLIGATIONS - This security agreement secures this loan (Including all
extensions, renewals, refinancings and modifications) and any other debt I have
with you now or later. Property described In this security agreement will not
secure other such debt, if you fail to give any required notice of the right of
rescission with respect to the Property. Also, this security agreement will not
secure other debts if this security interest is in household goods and the other
debt is a consumer loan. This security agreement will last until it is
discharged in writing.
For the sole purpose of determining the extent of a purchase money security
interest arising under this security agreement:
(a) Payments on any nonpurchase money loan also secured by this agreement not
be deemed to apply to the purchase money loan; and
(b) Payments on the purchase money loan will be deemed to a p ply first to the
nonpurchase money portion of the loan, if any, and then to the purchase
money obligations in the order in which the items were acquired.
No security interest will be terminated by application of this formula.
"Purchase money loan" means any loan the proceeds of which, in whole or in part,
are used to acquire any property securing the loan and all extensions, renewals,
consolidations end refinancing. of such loan.
PROPERTY - The word "Property" as used here, includes all property that is
listed in the security agreement on page 1. If a general description is used,
the word Property includes all my property fitting the general description.
Property also means all benefits that arise from the described Property
(including all proceeds, insurance benefits, payments from others, interest,
dividends, stock splits and voting rights). It also means property that now or
later is attached to, is a part of, or results from the Property.
OWNERSHIP AND DUTIES TOWARD PROPERTY - Unless a co-owner(s) of the Property
signed a third party agreement, I represent that I own all the Property. will
defend the Property against any other claim. I agree to do whatever you require
to perfect your Interest and keep your priority. I will not do anything to harm
your position.
I will keep the Property in my possession (except if pledged and delivered
to you). I will keep it in good repair and use it only for its intended
purposes. I will keep it at my address unless we agree otherwise in writing.
I will not try to sell or transfer the Property, or permit the Property to
become attached to any real estate, without your written consent. I will pay all
taxes and charges on the Property as they become due. I will inform you of any
loss or damage to the Property. You have the right of reasonable access in order
to inspect the Property.
INSURANCE - I agree to buy insurance on the Property against the risks and for
the amounts you require. I will name you as loss payee on any such policy. You
may require added security on this loan if you agree that insurance proceeds may
be used to repair or replace the Property. I agree that if the insurance
proceeds do not cover the amounts I still owe you, I will pay the difference. I
will buy the insurance from a firm authorized to do business in Illinois. The
firm will be reasonably acceptable to you. I will keep the insurance until all
debts secured by this agreement are aid.
COLLATERAL PROTECTION INSURANCE NOTICE - Unless I provide you with evidence of
the insurance coverage required by my agreement with you, you may purchase
Insurance at my expense to protect your interests In my collateral. This
insurance may, but need not, protect my interests. The coverage that you
purchase may not pay any claim that I make or any claim that is made against me
in connection with the collateral. I may later cancel any insurance purchased by
you, but only after providing you with evidence that I have obtained insurance
as required by our agreement. If you purchase insurance for the collateral, I
will be responsible for the premiums for that insurance, including interest and
any other charges you may impose in connection with the placement of the
Insurance, until the effective date of the cancellation or expiration of the
insurance. The premiums may be added to my total outstanding balance or
obligation. The premiums may be more than the premiums for insurance I may be
able to obtain on my own.
DEFAULT AND REMEDIES - If I am in default, in addition to the remedies listed
the note portion of this document and subject to any of the limitations in "REAL
ESTATE OR RESIDENCE SECURITY" paragraph, you may (after giving notice and
waiting a period of time, if required by law):
(a) Pay taxes or other charges, or purchase any required insurance, if I fail
to do these things (but you are not required to do so). You may add the
amount you pay to this loan and accrue interest on that amount at the
interest rate disclosed on page 1 until paid in full
(b) Require me to gather the Property and any related records and make it
available to you in a reasonable fashion;
(c) Take immediate possession of the Property, but In doing so you may not
breach the peace or unlawfully enter onto my premises. You may sell, lease
or dispose of the Property as provided by law. (If the Property includes a
manufactured home, you will begin the repossession by giving me notice and
an opportunity to cure my default, if required by law.) You may apply what
you receive from the sale of the Property to your expenses and then to the
debt, If what you receive from the sale of the Property is less than what I
owe you, you may take me to court to recover the difference to the extent
permitted by law); and
(d) Keep the Property to satisfy the debt.
I agree that when you must give notice to me of your intended sale or
disposition of the Property, the notice is reasonable if it is sent to me at my
last known address by first class mail 10 days before the intended sale or
disposition. I agree to inform you in writing of any change in my ad dress.
FILING - A copy of this security agreement may be used as a financing
statement when allowed by law.
THIRD PARTY AGREEMENT
For the purposes of the provisions within this enclosure, `I," "me" or `my"
means the person signing below and "you" means the Lender identified on page 1.
I agree to give you a security interest In the Property that Is described on
page 1. I agree to the terms of this note and security agreement but I am in no
way personally liable for payment of the debt. This means that If the Borrower
defaults, my interest in the secured Property may be used to satisfy the
Borrower's debt. I agree that you may, without releasing me or the Property from
this Third Party Agreement and without notice or demand upon me, extend new
credit to any borrower, renew or change this note or security agreement one or
more times and for any term, or fail to perfect your security interest in,
impair, or release any security (including guaranties) for the obligations of
any borrower.
I HAVE RECEIVED A COMPLETED COPY OF THIS NOTE AND SECURITY
AGREEMENT.
NAME __________________________________________________________________________
X _____________________________________________________________________________
NOTICE TO COSIGNER
You (the cosigner) are being asked to guaranty this debt. Think carefully
before you do. If the borrower, doesn't pay the debt, you will have to. Be sure
you can afford to pay if you have to. and that you want to accept this
responsibility.
You may have to pay up to the full amount of the debt If the borrower does
not pay. You also may have to pay late fees or collection costs, which increase
this amount.
The creditor can collect this debt from you without first trying to collect
from the borrower. The creditor can use the same collection methods against you
that can be used against the borrower, such as suing you, garnishing your wages.
etc. If this debt Is ever in default, that fact may become part of your credit
record.
This notice is not the Contract that makes you liable for the debt.
Attach FTC "Preservation of Consumer Claims and Defenses" Notice If Applicable
GUARANTY
PARIS , IL
(City) (State)
For good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, and to induce XXXXX COUNTY BANK & TRUST CO. 000 X XXXX
XX (herein, with its participants, successors and assigns, called "Lender"), at
its option, at any time or from time to time to make loans or extend other
accommodations to or for the account of D W LEASING COMPANY, LLC AND XXXXX
XXXXXXXXX PRESIDENT (herein called "Borrower") or to engage in any other
transactions with Borrower, the Undersigned hereby absolutely and
unconditionally guarantees to Lender the full and prompt payment when due,
whether at maturity or earlier by reason of acceleration or otherwise, of the
debts, liabilities and obligations described as follows:
A. If this [X] is checked, the Undersigned guarantees to Lender the payment
and performance of the debt, liability or obligation of Borrower to Lender
evidenced by or arising out of the following:
D.W. LEASING COMPANY, LLC, LOAN
and any extensions, renewals or replacements thereof (hereinafter referred
to as the "Indebtedness").
B. If this [X] is checked, the Undersigned guarantees to Lender the payment
and performance of each and every debt, liability and obligation of every
type and description which Borrower may now or at any time hereafter owe to
Lender (whether such debt, liability or obligation now exists or is
hereafter created or incurred, and whether it is or may be direct or
indirect, due or to become due, absolute or contingent, primary or
secondary, liquidated or unliquidated, or joint, several, or joint and
several; all such debts, liabilities and obligations being hereinafter
collectively referred to as the "Indebtedness"). Without limitation, this
guaranty includes the following described debt(s):
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The term "Indebtedness" as used in this guaranty shall not include any
obligations entered into between Borrower and Lender after the date hereof
(including any extensions, renewals or replacements of such obligations) for
which Borrower meets the Lender's standard of creditworthiness based on
Borrower's own assets and income without the addition of a guaranty, or for
which a guaranty is required but Borrower chooses someone other than the joint
Undersigned to guaranty the obligation.
The Undersigned further acknowledges and agrees with Xxxxxx that:
1. No act or thing need occur to establish the liability of the Undersigned
hereunder, and no act or thing, except full payment and discharge of all
indebtedness, shall in any way exonerate the Undersigned or modify, reduce,
limit or release the liability of the Undersigned hereunder.
2. This is an absolute, unconditional and continuing guaranty of payment of
the Indebtedness and shall continue to be in force and be binding upon the
Undersigned, whether or not all Indebtedness is paid in full, until this
guaranty is revoked by written notice actually received by the Lender, and such
revocation shall not be effective as to Indebtedness existing or committed for
at the time of actual receipt of such notice by the Lender, or as to any
renewals, extensions and refinancings thereof. If there be more than one
Undersigned, such revocation shall be effective only as to the one so revoking.
The death or incompetence of the Undersigned shall not revoke this guaranty,
except upon actual receipt of written notice thereof by Xxxxxx and then only as
to the decedent or the Incompetent and only prospectively, as to future
transactions, as herein set forth.
3. If the Undersigned shall be dissolved, shall die, or shall be or become
insolvent (however defined) or revoke this guaranty, then the Lender shall have
the right to declare immediately due and payable, and the Undersigned will
forthwith pay to the Lender, the full amount of all Indebtedness, whether due
and payable or unmatured. If the Undersigned voluntarily commences or there is
commenced involuntarily against the Undersigned a case under the United States
Bankruptcy Code, the full amount of all Indebtedness, whether due and payable or
unmatured, shall be immediately due and payable without demand or notice
thereof.
4. The liability of the Undersigned hereunder shall be limited to a
principal amount of $ (if unlimited or if no amount is stated, the Undersigned
shall be liable for all Indebtedness, without any limitation as to amount), plus
accrued interest thereon and all attorneys' fees, collection costs and
enforcement expenses thereto. Indebtedness may be created and continued in any
amount, whether or not in excess of such principal amount, without affecting or
impairing the liability of the Undersigned hereunder. The Lender may apply any
sums received by or available to Lender on account of the Indebtedness from
Borrower or any other person (except the Undersigned), from their properties,
out of any collateral security or from any other source to payment of the
excess. Such application of receipts shall not reduce, affect or impair the
liability of the Undersigned hereunder. If the liability of the Undersigned is
limited to a stated amount pursuant to this paragraph 4, any payment made by the
Undersigned under this guaranty shall be effective to reduce or discharge such
liability only if accompanied by a written transmittal document, received by the
Lender, advising the Lender that such payment is made under this guaranty for
such purpose.
5. The Undersigned will pay or reimburse Lender for all costs and expenses
(including reasonable attorneys' fees and legal expenses) incurred by Lender in
connection with the protection, defense or enforcement of this guaranty in any
litigation or bankruptcy or insolvency proceedings.
This guaranty includes the additional provisions on page 2, all of which are
made a part hereof.
This guaranty is [X] unsecured; [ ]secured by a mortgage or security
agreement dated _________________________;
[ ] secured by _______________________________________________________________
IN WITNESS WHEREOF, this guaranty has been duly executed the Undersigned the
day and year first above written.
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XXXXX XXXXXXXXX
=======================================
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Undersigned shall refer to all persona who sign this
guaranty, severally and jointly.
ADDITIONAL PROVISIONS
6. Whether or not any existing relationship between the Undersigned and
Borrower has been changed or ended and whether or not this guaranty has been
revoked, Lender may, but shall not be obligated to, enter into transactions
resulting in the creation or continuance of Indebtedness, without any consent or
approval by the Undersigned and without any notice to the Undersigned. The
liability of the Undersigned shall not be affected or impaired by any of the
following acts or things (which Lender is expressly authorized to do, omit or
suffer from time to time, both before and after revocation of this guaranty,
without notice to or approval by the Undersigned):
(i) any acceptance of collateral security, guarantors, accommodation parties or
sureties for any or all Indebtedness; (ii) any one or more extensions or
renewals of Indebtedness (whether or not for longer than the original period) or
any modification of the interest rates, maturities or other contractual terms
applicable to any Indebtedness; (iii) any waiver, adjustment, forbearance,
compromise or indulgence granted to Borrower, any delay or lack of diligence in
the enforcement of Indebtedness, or any failure to institute proceedings, file a
claim, give any required notices or otherwise protect any Indebtedness; (iv) any
full or partial release of, settlement with, or agreement not to sue, Borrower
or any other guarantor or other person liable in respect of any Indebtedness;
(v) any discharge of any evidence of Indebtedness or the acceptance of any
instrument in renewal thereof or substitution therefor; (vi) any failure to
obtain collateral security (including rights of setoff) for Indebtedness, or to
see to the proper or sufficient creation and perfection thereof, or to establish
the priority thereof, or to protect, insure, or enforce any collateral security;
or any release, modification, substitution, discharge, impairment,
deterioration, waste, or loss of any collateral security; (vii) any foreclosure
or enforcement of any collateral security; (viii) any transfer of any
Indebtedness or any evidence thereof; (ix) any order of application of any
payments or credits upon Indebtedness; (x) any election by the Lender under ss.
1111 (b)(2) of the United States Bankruptcy Code.
7. The Undersigned waives any and all defenses, claims and discharges of
Borrower, or any other obligor, pertaining to Indebtedness, except the defense
of discharge by payment in full. Without limiting the generality of the
foregoing, the Undersigned will not assert, plead or enforce against Lender any
defense of waiver, release, statute of limitations, res judicata, statute of
frauds, fraud, incapacity, minority, usury, illegality or unenforceability which
may be available to Borrower or any other person liable in respect of any
Indebtedness, or any setoff available against Lender to Borrower or any such
other person, whether or not on account of a related transaction. The
Undersigned expressly agrees that the Undersigned shall be and remain liable, to
the fullest extent permitted by applicable law, for any deficiency remaining
after foreclosure of any mortgage or security interest securing Indebtedness,
whether or not the liability of Borrower or any other obligor for such
deficiency is discharged pursuant to statute or judicial decision. The
undersigned shall remain obligated, to the fullest extent permitted by law, to
pay such amounts as though the Borrower's obligations had not been discharged.
8. The Undersigned further agrees that the Undersigned shall be and remain
obligated to pay Indebtedness even though any other person obligated to pay
Indebtedness, including Borrower, has such obligation discharged in bankruptcy
or otherwise discharged by law. "Indebtedness" shall include post-bankruptcy
petition interest and attorneys' fees and any other amounts which Borrower is
discharged from paying or which do not otherwise accrue to Indebtedness due to
Borrower's discharge, and the Undersigned shall remain obligated to pay such
amounts as though Borrower's obligations had not been discharged.
9. If any payment applied by Lender to Indebtedness is thereafter set
aside, recovered, rescinded or required to be returned for any reason
(including, without limitation, the bankruptcy, insolvency or reorganization of
Borrower or any other obligor), the Indebtedness to which such payment was
applied shall for the purposes of this guaranty be deemed to have continued in
existence, notwithstanding such application, and this guaranty shall be
enforceable as to such Indebtedness as fully as if such application had never
been made.
10.The Undersigned waives any claim, remedy or other right which the
Undersigned may now have or hereafter acquire against Borrower or any other
person obligated to pay Indebtedness arising out of the creation or performance
of the Undersigned's obligation under this guaranty, including, without
limitation, any right of subrogation, contribution, reimbursement,
indemnification, exoneration, and any right to participate in any claim or
remedy the Undersigned may have against the Borrower, collateral, or other party
obligated for Borrower's debts, whether or not such claim, remedy or right
arises in equity, or under contract, statute or common law.
11.The Undersigned waives presentment, demand for payment, notice of
dishonor or nonpayment, and protest of any instrument evidencing Indebtedness.
Lender shall not be required first to resort for payment of the -. Indebtedness
to Borrower or other persons or their properties, or first to enforce, realize
upon or exhaust any collateral security for Indebtedness, before enforcing this
guaranty.
12.The liability of the Undersigned under this guaranty is in addition to
and shall be cumulative with all other liabilities of the Undersigned to Lender
as guarantor or otherwise, without any limitation as to amount, unless the
instrument or agreement evidencing or creating such other liability specifically
provides to the contrary.
13.This guaranty shall be enforceable against each person signing this
guaranty, even if only one person signs and regardless of any failure of other
persons to sign this guaranty. If there be more than one signer, all agreements
and promises herein shall be construed to be, and are hereby declared to be,
joint and several in each of every particular and shall be fully binding upon
and enforceable against either, any or all the Undersigned. This guaranty shall
be effective upon delivery to Lender, without further act, condition or
acceptance by Lender, shall be binding upon the Undersigned and the heirs,
representatives, successors and assigns of the Undersigned and shall inure to
the benefit of Lender and its participants, successors and assigns. Any
invalidity or unenforceability of any provision or application of this guaranty
shall not affect other lawful provisions and application hereof, and to this end
the provisions of this guaranty are declared to be severable. Except as
authorized by the terms herein, this guaranty may not be waived, modified,
amended, terminated, released or otherwise changed except by a writing signed by
the Undersigned and Lender. This guaranty shall be governed by the laws of the
State in which it is executed. The Undersigned waives notice of Xxxxxx's
acceptance hereof.
SECURITY
SECURITY INTEREST: I give you a security interest in all of the Property
described below that I now own and that I may own in the future (including,
but not limited to, all parts, accessories, repairs, improvements, and
accessions to the Property), wherever the Property is or may be located, and
all proceeds and products from the Property.
[ ] Inventory: All inventory which I hold for ultimate sale or lease, or which
has been or will be supplied under contracts of service, or which are raw
materials, work in process, or materials used or consumed in my business.
[ ] Equipment: All equipment including, but not limited to, all machinery,
vehicles, furniture, fixtures, manufacturing equipment, farm machinery or
equipment, shop equipment, office and recordkeeping equipment, and parts
and tools. All equipment described in a list or schedule which I to you
will also be included in the secured property, but such a list is not
necessary for a valid security interest in my equipment.
[ ] Farm Products: All farm products including, but not limited to:
(a) all poultry and livestock and their young, along with their products,
produce and replacements; (b) all crops, annual or perennial, and all
products of the crops; and (c) all feed, seed, fertilizer, medicines, and
other supplies used or produced in my farming operations.
[ ] Accounts. Instruments, Documents, Chattel Paper and Other Rights to
Payment: All rights I have now and that I may have in the future to the
payment of money including, but not limited to:
(a) payment for goods and other property sold or leased or for services
rendered, whether or not I have earned such payment by performance; and
(b) rights to payment arising out of all present and future debt
instruments, chattel paper and loans and obligations receivable. The above
include any rights and interests (including all liens and security
interests) which I may have by law or agreement against any account debtor
or obligor of mine.
[ ] General Intangibles: All general intangibles including,
but not limited to, tax refunds, applications for patents, patents,
copyrights, trademarks, trade secrets, good will, trade names, customer
lists, permits and franchises, and the right to use my name.
[ ] Government Payments and Programs: All payments, accounts, general
intangibles, or other benefits (including, but not limited to, payments
in kind, deficiency payments, letters of entitlement, warehouse receipts,
storage payments, emergency assistance payments, diversion payments, and
conservation reserve payments in which I now have and in the future may
have any rights or interest and which arise under or as a result of any
preexisting, current or future Federal or state governmental program
(including, but not limited to, all programs administered by the
Commodity Credit Corporation and the ASCS).
[X] The secured property includes, but is not limited by, the following:
If this agreement covers timber to be cut, minerals (including oil and gas),
fixtures or crops growing or to be grown, the description of the real estate is:
[ ]If checked, file this agreement on the real estate records. Record owner
(if not me)
The Property will be used for a [ ] personal [X]business [X] agricultural [ ]
[ ] CONFESSION OF JUDGMENT: I agree to the terms of the "Confession of
Judgment" paragraph on page 3.
ADDITIONAL TERMS OF THE SECURITY AGREEMENT
GENERALLY - This agreement secures this note and any other debt I have with you,
now or later. However, it will not secure other debts if you fail with respect
to such other debts, to make any required disclosure about this security
agreement or if you fail to give any required notice of the right of rescission.
If property described in this agreement is located in another state, this
agreement may also, in some circumstances, be governed by the law of the state
in which the Property is located.
OWNERSHIP AND DUTIES TOWARD PROPERTY - I represent that I own all of the
Property, or to the extent this is a purchase money security interest I will
acquire ownership of the Property with the proceeds of the loan. I will defend
it against any other claim. Your claim to the Property is ahead of the claims of
any other creditor. I agree to do whatever you require to protect your security
interest and to keep your claim in the Property ahead of the claims of other
creditors, I will not do anything to harm your position.
I will keep books, records and accounts about the Property and my business
in general. I will let you examine these records at any reasonable time. I will
prepare any report or accounting you request, which deals with the Property.
I will keep the Property in my possession and will keep it in good repair
and use it only for the purpose(s) described on page 1 of this agreement. I will
not change this specified use without your express written permission. I
represent that I am the original owner of the Property and, if I am not, that I
have provided you with a list of prior owners of the Property.
I will keep the Property at my address listed on page 1 of this agreement,
unless we agree I may keep it at another location. If the Property is to be used
in another state, I will give you a list of those states. I will not try to sell
the Property unless it is inventory or I receive your written permission to do
so. If I sell the Property I will have the payment made payable to the order of
you and me.
You may demand immediate payment of the debt(s) if the debtor is not a
natural person and without your prior written consent; (1) a beneficial interest
in the debtor is sold or transferred, or (2) there is a change in either the
identity or number of members of a partnership, or (3) there is a change in
ownership of more than 25 percent of the voting stock of a corporation.
I will pay all taxes and charges on the Property as they become due, you
have the right of reasonable access in order to inspect the Property. I will
immediately inform you of any loss or damage to the Property.
If I fail to perform any of my duties under this security agreement, or any
mortgage, deed of trust, lien or other security interest, you may without notice
to me perform the duties or cause them to be performed. Your right to perform
for me shall not create an obligation to perform and your failure to perform
will not preclude you from exercising any of your other rights under the law or
this security agreement.
PURCHASE MONEY SECURITY INTEREST - For the sole purpose of determining the
extent of a purchase money security interest arising under this security
agreement: (al payments on any nonpurchase money loan also secured by this
agreement will not be deemed to apply to the Purchase Money Loan, and (b)
payments on the Purchase Money Loan will be deemed to apply first to the
nonpurchase money portion of the loan, if any, and then to the purchase money
obligations in the order in which the items of collateral were acquired or if
acquired at the same time, in the order selected by you. No security interest
will be terminated by application of this formula. "Purchase Money Loan" means
any loan the proceeds of which, in whole or in part, are used to acquire any
collateral securing the loan and all extensions, renewals, consolidations and
refinancing of such loan.
PAYMENTS BY LENDER - You are authorized to pay, on my behalf, charges I am or
may become obligated to pay to preserve or protect the secured property (such as
property insurance premiums). You may treat those payments as advances and add
them to the unpaid principal under the note secured by this agreement or you may
demand immediate payment of the amount advanced.
INSURANCE - I agree to buy insurance on the Property against the risks and for
the amounts you require and to furnish you continuing proof of coverage. I will
have the insurance company name you as loss payee on any such policy. You may
require added security if you agree that insurance proceeds may be used to
repair or replace the Property. I will buy insurance from a firm licensed to do
business in the state where you are located. The firm will be reasonably
acceptable to you. The insurance will last until the Property is released from
this agreement. If (fail to buy or maintain the insurance (or fail to name you
as loss payee) you may purchase it yourself.
COLLATERAL PROTECTION INSURANCE NOTICE - Unless I provide you with evidence of
the insurance coverage required by my agreement with you, you may purchase
insurance at my expense to protect your interests in my collateral. This
insurance may, but need not, protect my interests. The coverage that you
purchase may not pay any claim that I make or any claim that is made against me
in connection with the collateral. I may later cancel any insurance purchased by
you, but only after providing you with evidence that I have obtained insurance
as required by our agreement. If you purchase insurance for the collateral, I
will be responsible for the premiums for that insurance, including interest and
any other charges you may impose in connection with the placement of the
insurance, until the effective date of the cancellation or expiration of the
insurance. The premiums may be added to my total outstanding balance or
obligation. The premiums may be more than the premiums for insurance I may be
able to obtain on my own.
WARRANTIES AND REPRESENTATIONS - If this agreement includes accounts, I will not
settle any account for less than its full value without your written permission.
I will collect all accounts until you tell me otherwise. I will keep the
proceeds from all the accounts and any go which are returned to me or which I
take back in trust for you. I will mix them with any other property of mine. I
will deliver them to you at your request. If you ask me to pay you the full
price on any returned items or items retaken by myself, I will do so.
If this agreement covers inventory, I will not dispose of it except in my
ordinary course of business at the fair market value for the Property, or at a
minimum price established between you and me. If this agreement covers farm
products I will provide you, at your request, a written list of the buyers,
commission merchants or selling agents to or through whom I may sell my farm
products. In addition to those parties named on this written list, I authorize
you to notify at your sole discretion any additional parties regarding your
security interest in my farm products. I remain subject to all applicable
penalties for selling my farm products in violation of my agreement with you and
the Food Security Act. In this paragraph the terms farm products, buyers,
commission merchants and selling agents have the meanings given to them in the
Federal Food Security Act of 1985.
REMEDIES - I will be in default on this security agreement if I am in default on
any note this agreement secures or if I fail to keep any promise contained in
the terms of this agreement. If I default, you have all of the rights and
remedies provided in the note and under the Uniform Commercial Code. You may
require me to make the secured property available to you at a place which is
reasonably convenient, You may take possession of the secured property and sell
it as provided by law. The proceeds will be applied first to your expenses and
then to the debt agree that 10 days written notice sent to my last known address
by first class mail will be reasonable notice under the Uniform Commercial Code,
my current address is on page 1. I agree to inform you in writing of any change
of my address.
FILING - A carbon, photographic or other reproduction of this security agreement
or the financing statement covering the Property described in this agreement may
be used as a financing statement where allowed by law, Where permitted by law,
you may file a financing statement which does not contain my signature, covering
the Property secured by this agreement.
Any person who signs within this box does so to give you a security
interest in the Property described in this document, this person does not
promise to pay the note. "I" as used in this security agreement will include the
borrower and any person who signs within this box.
Date ___________________________
Signed ____________________________
ADDITIONAL TERMS OF THE NOTE
DEFINITIONS - As used on pages 1 and 2, "" means the terms that apply to this
loan, "I," "me" or "my" means each Borrower who signs this note and each other
person or legal entity (including guarantors, endorsers, and Xxxxxxxx) who
agrees to pay this note (together referred to as "us"). "You" or "your" means
the Lender and its successors and assigns.
APPLICABLE LAW - The law of the state of Illinois will govern this agreement.
Any term of this agreement which is contrary to applicable law will not be
effective, unless the law permits you and me to agree to such a variation. If
any provision of this agreement cannot be enforced according to its terms, this
fact will not affect the enforceability of the remainder of this agreement. No
modification of this agreement may be made without your express written consent.
Time is of the essence in this agreement.
PAYMENTS - Each payment I make on this note will first reduce the amount I owe
you for charges which are neither interest nor principal. The remainder of each
payment will then reduce accrued unpaid interest, and then unpaid principal, If
you and I agree to a different application of payments, we will describe our
agreement on this note, I may prepay a part of, or the entire balance of this
loan without penalty, unless we specify to the contrary on this note. Any
partial prepayment will not excuse or reduce any later scheduled payment until
this note is paid in full (unless, when I make the prepayment, you and I agree
in writing to the contrary).
INTEREST - Interest accrues on the principal remaining unpaid from time to time,
until paid in full. If I receive the principal in more than one advance, each
advance will start to earn interest only when I receive the advance. The
interest rate in effect on this note at any given time will apply to the entire
principal sum outstanding at that time. Notwithstanding anything to the
contrary, I do not agree to pay and you do not intend to charge any rate of
interest that is higher than the maximum rate of interest you could charge under
applicable law for the extension of credit that is agreed to in this note
(either before or after maturity). If any notice of interest accrual is sent and
is in error, we mutually agree to correct it, and if you actually collect more
interest than allowed by law and this agreement, you agree to refund it to me.
INDEX RATE - The index will serve only as a device for setting the interest rate
on this note. You do not guarantee by selecting this index, or the margin, that
the interest rate on this note will be the same rate you charge on any other
loans or class of loans you make to me or other borrowers.
POST MATURITY RATE - For purposes of deciding when the "Post Maturity Rate"
(shown on page 1) applies, the term "maturity" means the date of the last
scheduled payment indicated on page 1 of this note or the date you accelerate
payment on the note, whichever is earlier.
SINGLE ADVANCE LOANS - If this is a single advance loan, you and I expect that
you will make only one advance of principal. However, you may add other amounts
to the principal if you make any payments described in the "PAYMENTS BY LENDER"
paragraph on page 2.
MULTIPLE ADVANCE LOANS - If this is a multiple advance loan, you and I expect
that you will make more than one advance of principal. If this is closed end
credit, repaying a part of the principal will not entitle me to additional
credit.
SET-OFF - I agree that you may set off any amount due and payable under this
note against any right I have to receive money from you.
"Right to receive money from you" means:
(1) any deposit account balance I have with you;
(2) any money owed to me on an item presented to you or in your possession
for collection or exchange; and
(3) any repurchase agreement or other nondeposit obligation.
"Any amount due and payable under this note" means the total amount of
which you are entitled to demand payment under the terms of this note at the
time you set off. This total includes any balance the due date for which you
properly accelerate under this note.
If my right to receive money from you is also owned by someone who has not
agreed to pay this note, your right of set-off will apply to my interest in the
obligation and to any other amounts I could withdraw on my sole request or
endorsement. Your right of set-off does not apply to an account or other
obligation where my rights are only as a representative. It also does not apply
to any Individual Retirement Account or other tax-deferred retirement account.
You will not be liable for the dishonor of any check when the dishonor occurs
because you set off this debt against any of my accounts. I agree to hold you
harmless from any such claims arising as a result of your exercise of your right
to set-off.
DEFAULT - I will be in default if any one or more of the following occur: (1) I
fail to make a payment on time or in the amount due; (2) I fail to keep the
Property insured, if required; (3) I fail to pay, or keep any promise, on any
debt or agreement I have with you; (4) any other creditor of mine attempts to
collect any debt I owe him through court proceedings; (5) I die, am declared
incompetent, make an assignment for the benefit of creditors, or become
insolvent (either because my liabilities exceed my assets or I am unable to pay
my debts as they become duel; (61 I make any written statement or provide any
financial information that is untrue or inaccurate at the time it was provided;
(7) I do or fail to do something which causes you to believe you will have
difficulty collecting the amount I owe you; (8) any collateral securing this
note is used in a manner or for a purpose which threatens confiscation by a
legal authority; (9) I change my name or assume an additional name without first
notifying you before making such a change; 110) I fail to plant, cultivate and
harvest crops in due season; 11 1) any loan proceeds are used for a purpose that
will contribute to excessive erosion of highly erodible land or to the
conversion of wetlands to produce an agricultural commodity, as further
explained in 7 C.F.R. Part 1940, Subpart G, Exhibit M.
REMEDIES - If I am in default on this note you have, but are not limited to, the
following remedies:
(1) You may demand immediate payment of all I owe you under this note
(principal, accrued unpaid interest and other accrued unpaid charges).
(2) You may set off this debt against any right I have to the payment of
money from you, subject to the terms of the "SET-OFF" paragraph
herein.
(3) You may demand security, additional security, or additional parties to
be obligated to pay this note as a condition for not using any other
remedy.
(4) You may refuse to make advances to me or allow purchases on credit by
me.
(5) You may use any remedy you have under state or federal law.
(6) You may make use of any remedy given to you in any agreement securing
this note.
By selecting any one or more of these remedies you do not give up your
right to use later any other remedy. By waiving your right to declare an event
to be a default, you do not waive your right to consider later the event a
default if it continues or happens again.
COLLECTION COSTS AND ATTORNEY'S FEES - I agree to pay all costs of collection,
replevin or any other or similar type of cost if I am in default. In addition,
if you hire an attorney to collect this note, I also agree to pay any fee you
incur with such attorney plus court costs (except where prohibited by law). To
the extent permitted by the United States Bankruptcy Code, I also agree to pay
the reasonable attorney's fees and costs you incur to collect this debt as
awarded by any Court exercising jurisdiction under the Bankruptcy Code. WAIVER -
I give up my rights to require you to do certain things. I will not require you
to:
11) demand payment of amounts due (presentment;
(2) obtain official certification of nonpayment (protest); or
(3) give notice that amounts due have not been paid (notice of dishonor).
I waive any defenses I have based on suretyship or impairment of
collateral.
OBLIGATIONS INDEPENDENT - I understand that I must pay this note even if someone
else has also agreed to pay it (by, for example, signing this form or a separate
guarantee or endorsement). You may sue me alone, or anyone else who is obligated
on this note, or any number of us together, to collect this note. You may
without notice release any party to this agreement without releasing any other
party. If you give up any of your rights, with or without notice, it will not
affect my duty to pay this note. Any extension of new credit to any of us, or
renewal of this note by all or less than all of us will not release me from my
duty to pay it, (Of course, you are entitled to only one payment in full.) I
agree that you may at your option extend this note or the debt represented by
this note, or any portion of the note or debt, from time to time without limit
or notice and for any term without affecting my liability for payment of the
note, I will not assign my obligation under this agreement without your prior
written approval.
CREDIT INFORMATION - I agree and authorize you to obtain credit information
about me from time to time (for example, by requesting a credit report) and to
report to others your credit experience with me (such as a credit reporting
agency). I agree to provide you, upon request, any financial statement or
information you may deem necessary. I warrant that the financial statements and
information I provide to you are or will be accurate, correct and complete.
CONFESSION OF JUDGMENT - If agreed on page 2, then in addition to your remedies
listed herein, I authorize any attorney to appear in any court of record having
jurisdiction over this matter and to confess judgment, without process, against
me, in favor of you, for any unpaid principal, accrued interest and accrued
charges due on this agreement, together with collection costs including
reasonable attorney's fees,
SIGNATURES: I AGREE TO THE TERMS OF THIS NOTE (INCLUDING THOSE ON PAGES 1 AND
2). I have received a copy on today's date.
D W LEASING COMPANY, LLC
XXXXX XXXXXXXXX PRESIDENT
XXXXX XXXXXXXX PRESIDENT
SCHEDULE OF MATERIAL DETAILS FOR LOANS BY
XXXXX COUNTY BANK TO DW LEASING COMPANY, LLC
FOR COACHES
Line of Credit/ Maturity Date No. of Payments Amount of
Loan Date Loan Amount Interest Rate Payment
1/15/01 5/15/01 $ 484,558.00 11.650 84 $ 18,065.02
5/15/01 5/15/06 $ 470,058.00 11.150 60* $ 6,558.10
2/11/00 2/11/05 $ 550,000.00 11.250 61** $ 7,723.59
9/7/00 9/7/05 $ 527,530.00 11.150 60*** $ 7,359.00
* Plus balloon payment in amount of $306,022.66 in 60th month. ** Plus balloon
payment in amount of $360,476.78 in 61st month. ***Plus balloon payment in
amount of $342,138.67 in 60th month.
