XXXX OWNER OF COLLATERAL COMMERCIAL
XXXXX SECURITY
BANKS XXXXXX INC. AGREEMENT
000 XXXXX XXXXXX
XXXXXX XXXX, XX 00000
Telephone Number
XXXX XXXXX KANSAS CITY BANK
0000 XXXX
XXXXXXX, XX 00000
(Lender)
BORROWER LOCATION OF COLLATERAL
ROTHERWOOD CORPORATION 000 XXXXX XXXXXX
000 XXXXX XX. XXXXXX XXXX, XX 00000
XXXXXX XXXX, XX 00000-0000
Telephone Number
1. SECURITY INTEREST. For good and valuable
consideration, Owner of Collateral ("Owner") grants to Lender
identified above a continuing security interest in the Collateral
described below to secure the obligations described in this
Agreement.
2. OBLIGATIONS. The Collateral shall secure the payment
and performance of all of Borrower's and Owner's present and
future, joint and/or several, direct and indirect, absolute and
contingent, express and implied, indebtedness, (including costs
of collection, legal expenses and attorneys' fees, to the extent
permitted by applicable law, incurred by Lender upon the
occurrence of a default under this Agreement, in collecting or
enforcing payment of such indebtedness, or preserving, protecting
or realizing on the Collateral herein), liabilities, obligations
and covenants (cumulatively "Obligations") to Lender including
(without limitation) those arising under or pursuant to:
a. this Agreement and the following promissory notes
and agreements:
INTEREST PRINCIPAL AMOUNT/ FUNDING/ MATURITY CUSTOMER LOAN
RATE CREDIT LIMIT AGREEMENT DATE DATE NUMBER NUMBER
VARIABLE $3,750,000.00 08/27/96 08/27/97 1619572504 54080
CONTINUING CONTRACT OF GUARANTY DATED AUGUST 27, 1996.
b. all other present or future, Obligations of
Borrower or Owner to Lender (whether incurred for
the same or different purposes than the
foregoing);
c. all amendments, modifications, replacements or
substitutions to any of the foregoing; and
d. applicable law.
3. COLLATERAL. The Collateral shall consist of all of the
following-described property and Owner's rights, title and
interest in such property whether now owned or hereafter acquired
by Owner and wheresoever located:
[X] All accounts and contract rights including, but
not limited to, any accounts and contract rights
described on Schedule A attached hereto and
incorporated herein by this reference;
[X] All chattel paper including, but not limited to,
any chattel paper described on Schedule A attached
hereto and incorporated herein by this reference;
[X] All documents including, but not limited to, any
documents described on Schedule A attached hereto
and incorporated herein by this reference;
[X] All equipment, including, but not limited to, any
equipment described on Schedule A attached hereto
and incorporated herein by this reference;
[ ] All fixtures, including, but not limited to, any
fixtures located or to be located on the real
property described on Schedule B attached hereto
and incorporated herein by this reference;
[X] All general intangibles including, but not limited
to, any general intangibles described on Schedule
A attached hereto and incorporated herein by this
reference;
[X] All instruments including, but not limited to, any
instruments described on Schedule A attached
hereto and incorporated herein by this reference;
[X] All inventory including, but not limited to, any
inventory described on Schedule A attached hereto
and incorporated herein by this reference;
[ ] All minerals or the like located on or related to
the real property described on Schedule B attached
hereto and incorporated herein by this reference;
[ ] All standing timber located on the real property
described on Schedule B attached hereto and
incorporated herein by this reference;
[ ] Other:
All monies, instruments, and savings, checking or other deposit
accounts that are now or in the future in Lender's custody or
control (excluding XXX, Xxxxx, trust accounts, and deposits
subject to tax penalties if so assigned);
All accessions, accessories, additions, amendments, attachments,
modifications, replacements and substitutions to any of the
above;
All proceeds and products of any of the above;
All policies of insurance pertaining to any of the above as well
as any proceeds and unearned premiums pertaining to such
policies; and
All books and records pertaining to any of the above.
4. OWNER'S TAXPAYER IDENTIFICATION. Owner's social
security number or federal taxpayer identification number is:
______.
5. RESIDENCY/LEGAL STATUS. Owner is a resident of the
state of: n/a. Owner is a: Corporation ; duly
organized, validly existing and in good standing under the laws
of the state of: KANSAS .
6. REPRESENTATIONS, WARRANTIES AND COVENANTS: Owner
represents, warrants and covenants to Lender that:
(a) Owner is and shall remain the sole owner of the
Collateral;
(b) Neither Owner nor, to the best of Owner's
knowledge, any other party has used, generated,
released, discharged, stored, or disposed of any
hazardous waste, toxic substance, or related
material (cumulatively "Hazardous Materials") or
transported any Hazardous Materials. Owner shall
not commit or permit such actions to be taken in
the future. The term "Hazardous Materials" shall
mean any substance, material, or waste which is or
becomes regulated by any governmental authority
including, but not limited to, (i) petroleum; (ii)
asbestos; (iii) polychlorinated biphenyls; (iv)
those substances, materials or wastes designated
as a "hazardous substance" pursuant to Section 311
of the Clean Water Act or listed pursuant to
Section 307 of the Clean Water Act or any
amendments or replacements to these statutes; (v)
those substances, materials or wastes defined as a
"hazardous waste" pursuant to Section 1004 of the
Resource Conservation and Recovery Act or any
amendments or replacements to that statute; or
(vi) those substances, materials or wastes defined
as a "hazardous substance" pursuant to Section 101
of the Comprehensive Environmental Response,
Compensation and Liability Act, or any amendments
or replacements to that statute;
(c) Owner's chief executive office, chief place of
business, office where its business records are
located, or residence is the address identified
above. Owner's other executive offices, places of
business, locations of its business records, or
domiciles are described on Schedule C attached
hereto and incorporated herein by this reference.
Owner shall immediately advise Lender in writing
of any change in or addition to the foregoing
addresses;
(d) Owner shall not become a party to any
restructuring of its form of business or
participate in any consolidation, merger,
liquidation or dissolution without providing
Lender with thirty (30) or more days' prior
written notice of such change;
(e) Owner shall notify Lender of the nature of any
intended change of Owner's name, or the use of any
trade name, and the effective date of such change;
(f) The Collateral is and shall at all times remain
free of all tax and other liens, security
interests, encumbrances and claims of any kind
except for those belonging to Lender and those
described on Schedule D attached hereto and
incorporated herein by this reference. Without
waiving the event of default as a result thereof,
Owner shall take any action and execute any
document needed to discharge the foregoing liens,
security interests, encumbrances and claims;
(g) Owner shall defend the Collateral against all
claims and demands of all persons at any time
claiming any interest therein;
(h) All of the goods, fixtures, minerals or the like,
and standing timber constituting the Collateral is
and shall be located at Owner's executive offices,
places of business, residence and domiciles
specifically described in this Agreement. Owner
shall not change the location of any Collateral
without the prior written consent of Lender;
(i) Owner shall provide Lender with possession of all
chattel paper and instruments constituting the
Collateral, and Owner shall promptly xxxx all
chattel paper, instruments, and documents
constituting the Collateral to show that the same
are subject to Lender's security interest;
(j) All of Owner's accounts or contract rights;
chattel paper; documents; general intangibles;
instruments; and federal, state, county, and
municipal government and other permits and
licenses; trusts, liens, contracts, leases, and
agreements constituting the Collateral are and
shall be valid, genuine and legally enforceable
obligations and rights belonging to Owner against
one or more third parties and not subject to any
claim, defense, set-off or counterclaim of any
kind;
(k) Owner shall not amend, modify, replace, or
substitute any account or contract right; chattel
paper; document; general intangible; or instrument
constituting the Collateral without the prior
written consent of Lender;
(l) Owner has the right and is duly authorized to
enter into and perform its obligations under this
Agreement. Owner's execution and performance of
these obligations do not and shall not conflict
with the provisions of any statute, regulation,
ordinance, rule of law, contract or other
agreement which may now or hereafter be binding on
Owner;
(m) No action or proceeding is pending against Owner
which might result in any material or adverse
change in its business operations or financial
condition or materially affect the Collateral;
(n) Owner has not violated and shall not violate any
applicable federal, state, county or municipal
statute, regulation or ordinance (including but
not limited to those governing Hazardous
Materials) which may materially and adversely
affect its business operations or financial
condition or the Collateral;
(o) Owner shall, upon Lender's request, deposit all
proceeds of the Collateral into an account or
accounts maintained by Owner or Lender at Lender's
institution; and
(p) This Agreement and the obligations described in
this Agreement are executed and incurred for
business and not consumer purposes.
7. SALE OF COLLATERAL. Owner shall not assign, convey,
lease, sell or transfer any of the Collateral to any third party
without the prior written consent of Lender except for sales of
inventory to buyers in the ordinary course of business.
8. FINANCING STATEMENTS AND OTHER DOCUMENTS. Owner shall
take all actions and execute all documents required by Lender to
attach, perfect and maintain Lender's security interest in the
Collateral and establish and maintain Lender's right to receive
the payment of the proceeds of the Collateral including, but not
limited to, executing any financing statements, fixture filings,
continuation statements, notices of security interest and other
documents required by the Uniform Commercial Code and other
applicable law. Owner shall pay the costs of filing such
documents in all offices wherever filing or recording is deemed
by Lender to be necessary or desirable. Lender shall be entitled
to perfect its security interest in the Collateral by filing
carbon, photographic or other reproductions of the aforementioned
documents with any authority required by the Uniform Commercial
Code or other applicable law. Lender may execute and file any
financing statements, as well as extensions, renewals and
amendments of financing statements in such form as Lender may
require to perfect and maintain perfection of any security
interest granted in this Agreement.
9. INQUIRIES AND NOTIFICATION TO THIRD PARTIES. Owner
hereby authorizes Lender to contact any third party and make any
inquiry pertaining to Owner's financial condition or the
Collateral. In addition, Lender is authorized to provide oral or
written notice of its security interest in the Collateral to any
third party.
10. COLLECTION OF INDEBTEDNESS FROM THIRD PARTIES. Lender
shall be entitled to notify, and upon the request of Lender,
Owner shall notify any account debtor or other third party
(including, but not limited to, insurance companies) to pay any
indebtedness or obligation owing to Owner and constituting the
Collateral (cumulatively "indebtedness") to Lender whether or not
a default exists under this Agreement. Owner shall diligently
collect the indebtedness owing to Owner from its account debtors
and other third parties until the giving of such notification.
In the event that Owner possesses or receives possession of any
instruments or other remittances with respect to the indebtedness
following the giving of such notification or if the instruments
or other remittances constitute the prepayment of any
indebtedness or the payment of any insurance proceeds, Owner
shall hold such instruments and other remittances in trust for
Lender apart from its other property, endorse the instruments and
other remittances to Lender, and immediately provide Lender with
possession of the instruments and other remittances. Lender
shall be entitled, but not required, to collect (by legal
proceedings or otherwise), extend the time for payment,
compromise, exchange or release any obligor or collateral upon,
or otherwise settle any of the indebtedness whether or not an
event of default exists under this Agreement. Lender shall not
be liable to Owner for any action, error, mistake, omission or
delay pertaining to the actions described in this paragraph or
any damages resulting therefrom.
11. POWER OF ATTORNEY. Owner hereby appoints Lender as its
attorney-in-fact to endorse Owner's name on all instruments and
other remittances payable to Owner with respect to the
indebtedness or other documents pertaining to Lender's actions in
connection with the indebtedness. In addition, Lender shall be
entitled, but not required, to perform any action or execute any
document required to be taken or executed by Owner under this
Agreement. Lender's performance of such action or execution of
such documents shall not relieve Owner from any obligation or
cure any default under this Agreement. The powers of attorney
described in this paragraph are coupled with an interest and are
irrevocable.
12. USE AND MAINTENANCE OF COLLATERAL. Owner shall use the
Collateral solely in the ordinary course of its business, for the
usual purposes intended by the manufacturer (if applicable), with
due care, and in compliance with the laws, ordinances,
regulations, requirements and rules of all federal, state, county
and municipal authorities including environmental laws and
regulations and insurance policies. Owner shall not make any
alterations, additions or improvements to the Collateral without
the prior written consent of Lender. Without limiting the
foregoing, all alterations, additions and improvements made to
the Collateral shall be subject to the security interest
belonging to Lender, shall not be removed without the prior
written consent of Lender, and shall be made at Owner's sole
expense. Owner shall take all actions and make any repairs or
replacements needed to maintain the Collateral in good condition
and working order.
13. LOSS OR DAMAGE. Owner shall bear the entire risk of
any loss, theft, destruction or damage (cumulatively "Loss or
Damage") to all or any part of the Collateral. In the event of
any Loss or Damage, Owner will either restore the Collateral to
its previous condition, replace the Collateral with similar
property acceptable to Lender in its sole discretion, or pay or
cause to be paid to Lender the decrease in the fair market value
of the affected Collateral.
14. INSURANCE. The Collateral will be kept insured for its
full value against all hazards including loss or damage caused by
fire, collision, theft or other casualty. If the Collateral
consists of a motor vehicle, Owner will obtain comprehensive and
collision coverage in amounts at least equal to the actual cash
value of the vehicle with deductibles not to exceed $ n/a .
Owner may obtain insurance on the Collateral from such companies
as are acceptable to Lender in its sole discretion. The
insurance policies shall require the insurance company to provide
Lender with at least thirty (30) days' written notice before such
policies are altered or cancelled in any manner. The insurance
policies shall name Lender as a loss payee and provide that no
act or omission of Owner or any other person shall affect the
right of Lender to be paid the insurance proceeds pertaining to
the loss or damage of the Collateral. In the event Owner fails
to acquire or maintain insurance, Lender (after providing notice
as may be required by law) may in its discretion procure
appropriate insurance coverage upon the Collateral and charge the
insurance cost as an advance of principal under the promissory
note. Owner shall furnish Lender with evidence of insurance
indicating the required coverage. Lender may act as attorney-
in-fact for Owner in making and settling claims under insurance
policies, cancelling any policy or endorsing Owner's name on any
draft or negotiable instrument drawn by any insurer.
15. INDEMNIFICATION. Lender shall not assume or be
responsible for the performance of any of Owner's obligations
with respect to the Collateral under any circumstances. Owner
shall immediately provide Lender with written notice of and
indemnify and hold Lender and its shareholders, directors,
officers, employees and agents harmless from all claims, damages,
liabilities (including attorneys' fees and legal expenses to the
extent permitted by applicable law), causes of action, actions,
suits and other legal proceedings (cumulatively "Claims")
pertaining to its business operations or the Collateral
including, but not limited to, those arising from Lender's
performance of Owner's obligations with respect to the
Collateral. Owner, upon the request of Lender, shall hire legal
counsel to defend Lender from such Claims, and pay the attorneys'
fees, legal expenses and other costs to the extent permitted by
applicable law, incurred in connection therewith. In the
alternative, Lender shall be entitled to employ its own legal
counsel to defend such Claims at Owner's cost.
16. TAXES AND ASSESSMENTS. Owner shall execute and file
all tax returns and pay all taxes, licenses, fees and assessments
relating to its business operations and the Collateral
(including, but not limited to, income taxes, personal property
taxes, withholding taxes, sales taxes, use taxes, excise taxes
and workers' compensation premiums) in a timely manner.
17. INSPECTION OF COLLATERAL AND BOOKS AND RECORDS. Owner
shall allow Lender or its agents to examine, inspect and make
abstracts and copies of the Collateral and Owner's books and
records pertaining to Owner's business operations and financial
condition or the Collateral during normal business hours. Owner
shall provide any assistance required by Lender for these
purposes. All of the signatures and information pertaining to
the Collateral or contained in the books and records shall be
genuine, true, accurate and complete in all respects. Owner
shall note the existence of Lender's security interest in its
books and records pertaining to the Collateral.
18. DEFAULT. Owner shall be in default under this
Agreement in the event that Owner, Borrower or any guarantor:
(a) fails to make any payment under this Agreement or
any other indebtedness to Lender when due;
(b) fails to perform any obligation or breaches any
warranty or covenant to Lender contained in this
Agreement or any other present or future, written
or oral, agreement regarding this or any other
indebtedness to Lender;
(c) provides or causes any false or misleading
signature or representation to be provided to
Lender;
(d) allows the Collateral to be destroyed, lost or
stolen, damaged in any material respect, or
subjected to seizure or confiscation;
(e) seeks to revoke, terminate or otherwise limit its
liability under any continuing guaranty;
(f) permits the entry or service of any garnishment,
judgment, tax levy, attachment or lien against
Owner, any guarantor, or any of their property;
(g) dies, becomes legally incompetent, is dissolved or
terminated, ceases to operate its business,
becomes insolvent, makes an assignment for the
benefit of creditors, or becomes the subject of
any bankruptcy, insolvency or debtor
rehabilitation proceeding;
(h) allows the Collateral to be used by anyone to
transport or store goods, the possession,
transportation, or use of which, is illegal; or
(i) causes Lender to deem itself insecure for any
reason.
19. RIGHTS OF LENDER ON DEFAULT. If there is a default
under this Agreement, Lender shall be entitled to exercise one or
more of the following remedies without notice or demand (except
as required by law):
(a) to declare the Obligations immediately due and
payable in full;
(b) to collect the outstanding Obligations with or
without resorting to judicial process;
(c) to change Owner's mailing address, open Owner's
mail, and retain any instruments or other
remittances constituting the Collateral contained
therein;
(d) to take possession of any Collateral in any manner
permitted by law;
(e) to apply for and obtain, without notice and upon
ex parte application, the appointment of a
receiver for the Collateral without regard to
Owner's financial condition or solvency, the
adequacy of the Collateral to secure the payment
or performance of the obligations, or the
existence of any waste to the Collateral;
(f) to require Owner to deliver and make available to
Lender any Collateral at a place reasonably
convenient to Owner and Lender;
(g) to sell, lease or otherwise dispose of any
Collateral and collect any deficiency balance with
or without resorting to legal process (if notice
to Borrower of the intended disposition of the
Collateral is required by law, five (5) days
notice shall constitute reasonable notification);
(h) to set-off Owner's obligations against any amounts
due to Owner including, but not limited to,
monies, instruments, and deposit accounts
maintained with Lender; and
(i) to exercise all other rights available to Lender
under any other written agreement or applicable
law.
Lender's rights are cumulative and may be exercised together,
separately, and in any order. If notice to Owner of intended
disposition of Collateral is required by law, five (5) days'
notice shall constitute reasonable notification. In the event
that Lender institutes an action to recover any Collateral or
seeks recovery of any Collateral by way of a prejudgment remedy
in an action against Owner, Owner waives the posting of any bond
which might otherwise be required. Lender's remedies under this
paragraph are in addition to those available at common law, such
as setoff.
20. WAIVER OF JURY TRIAL. LENDER AND OWNER HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT EITHER
MAY HAVE TO A TRIAL BY JURY IN RESPECT TO ANY LITIGATION BASED
ON, OR ARISING OUT OF, UNDER OR IN CONJUNCTION WITH THE
PROMISSORY NOTE, THIS AGREEMENT AND ANY OTHER AGREEMENT
CONTEMPLATED TO BE EXECUTED IN CONJUNCTION HEREWITH OR THEREWITH,
OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER
VERBAL OR WRITTEN) OR ACTIONS OF EITHER PARTY. THIS PROVISION IS
A MATERIAL INDUCEMENT FOR LENDER MAKING THE LOAN EVIDENCED BY THE
PROMISSORY NOTE.
21. APPLICATION OF PAYMENTS. Whether or not a default has
occurred under this Agreement, all payments made by or on behalf
of Owner and all credits due to Owner from the disposition of the
Collateral or otherwise may be applied against the amounts paid
by Lender (including attorneys' fees and legal expenses to the
extent permitted by applicable law) in connection with the
exercise of its rights or remedies described in this Agreement
and any interest thereon and then to the payment of the remaining
Obligations in whatever order Lender chooses.
22. REIMBURSEMENT OF AMOUNTS EXPENDED BY LENDER. Owner
shall reimburse Lender for all amounts (including attorneys' fees
and legal expenses) expended by Lender in the performance of any
action required to be taken by Owner or the exercise of any right
or remedy belonging to Lender under this Agreement, together with
interest thereon at the lower of the highest rate described in
any promissory note or credit agreement executed by Borrower or
Owner or the highest rate allowed by law from the date of payment
until the date of reimbursement. These sums shall be included in
the definition of Obligations, shall be secured by the Collateral
identified in this Agreement and shall be payable upon demand.
23. ASSIGNMENT. Owner shall not be entitled to assign any
of its rights, remedies or obligations described in this
Agreement without the prior written consent of Lender. Consent
may be withheld by Lender in its sole discretion. Lender shall
be entitled to assign some or all of its rights and remedies
described in this Agreement without notice to or the prior
consent of Owner in any manner.
24. MODIFICATION AND WAIVER. The modification or waiver of
any of Owner's Obligations or Lender's rights under this
Agreement must be contained in a writing signed by Lender.
Lender may perform any of Owner's Obligations or delay or fail to
exercise any of its rights without causing a waiver of those
Obligations or rights. A waiver on one occasion shall not
constitute a waiver on any other occasion. Owner's Obligations
under this Agreement shall not be affected if Lender amends,
compromises, exchanges, fails to exercise, impairs or releases
any of the obligations belonging to any Owner or third party or
any of its rights against any Owner, third party or collateral.
25. SUCCESSORS AND ASSIGNS. This Agreement shall be
binding upon and inure to the benefit of Owner and Lender and
their respective successors, assigns, trustees, receivers,
administrators, personal representatives, legatees, and devisees.
26. NOTICES. Any notice or other communication to be
provided under this Agreement shall be in writing and sent to the
parties at the addresses described in this Agreement or such
other address as the parties may designate in writing from time
to time.
27. SEVERABILITY. If any provision of this Agreement
violates the law or is unenforceable, the rest of the Agreement
shall remain valid.
28. APPLICABLE LAW. This Agreement shall be governed by
the laws of the state identified in Lender's address. Owner
consents to the jurisdiction and venue of any court located in
the state indicated in Lender's address in the event of any legal
proceeding under this Agreement.
29. COLLECTION COSTS. If Lender hires an attorney to
assist in collecting any amount due or enforcing any right or
remedy under this Agreement, Owner agrees to pay Lender's
attorneys' fees to the extent permitted by applicable law, and
collection costs (subject to any restrictions imposed by law).
30. MISCELLANEOUS. This Agreement is executed for
commercial purposes. Owner shall supply information regarding
Owner's business operations and financial condition or the
Collateral in the form and manner requested by Lender. All
information furnished by Owner to Lender shall be true, accurate
and complete in all respects. Owner and Lender agree that time
is of the essence. Owner waives presentment, demand for payment,
notice of dishonor and protest except as required by law. All
references to Owner in this Agreement shall include all parties
signing below except Lender. If there is more than one Owner,
their obligations shall be joint and several. This Agreement
shall remain in full force and effect until Lender provides Owner
with written notice of termination. This Agreement and any
related documents represent the complete and integrated
understanding between Owner and Lender pertaining to the terms
and conditions of those documents.
31. ADDITIONAL TERMS:
THE UNDERSIGNED AGREE THAT THE CONSENT TO JURISDICTION
AND VENUE HEREIN SHALL NOT PROHIBIT OR LIMIT LENDER
FROM BRINGING ANY ACTION OR PROCEEDING HEREUNDER IN ANY
JURISDICTION OR VENUE THAT IS OTHERWISE PROPER.
Owner acknowledges that Owner has read, understands, and agrees
to the terms and conditions of this Agreement.
Dated: AUGUST 27, 1996
OWNER: XXXXXX INC. OWNER:
BY: /s/ Xxxx Xxxxx BY:
XXXX XXXXX
TITLE: SECRETARY TITLE:
OWNER: OWNER:
BY: BY:
TITLE: TITLE:
LENDER: XXXX XXXXX KANSAS CITY BANK
BY:
TITLE:
SCHEDULE A
SCHEDULE B
SCHEDULE C
SCHEDULE D
NONE
