IOWA STATE BAR ASSOCIATION FOR THE LEGAL EFFECT OF THE USE OF
Official Form No. 171 THIS FORM, CONSULT YOUR LAWYER
CAVEAT:DO NOT USE THIS FORM IF THIS TRANSACTION IS A CONSUMER CREDIT TRANSACTION
SECURITY AGREEMENT -- GENERAL FORM
1. GRANT OF SECURITY INTEREST. For value received, as security for the
Obligations (as defined below) the undersigned ("Debtor")
hereby grants to
Xxxxxxx Xxxxxx & Company Leasing, Inc. ("Secured
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Party") a security interest in the property described in the paragraphs checked
below:
|X| All of Debtor's inventory now owned or hereafter acquired;
|X| All of Debtor's accounts, now existing or hereafter arising,
together with all interest of Debtor in any goods, the sale or
lease of which give rise to any of Debtor's accounts, and all
chattel paper, documents and instruments relating to accounts;
|X| All of Debtor's general intangibles, now owned or hereafter
acquired; |X| All of Debtor's equipment now owned or hereafter
acquired; |_| All of Debtor's farm products now owned or hereafter
acquired |_| All of Debtor's fixtures on the real estate described in
Paragraph 3 below;
|X| Property described as See Attached Schedule "A"
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together with the proceeds, products, increase, issue, accessions, attachments,
accessories, parts, additions, repairs, replacements and substitutes of, to, and
for all of the foregoing. Debtor will promptly deliver to Secured Party, duly
endorsed when necessary, all such chattel paper, documents and instruments and
related guaranties, now on hand or hereafter received.
All such property in which a security interest is granted is herein called the
"Collateral."
2. OBLIGATIONS. The aforesaid security interests secure payment and
performance of the following obligations (the "Obligations"): Xxxxxxx
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Xxxxxx & Company Leasing, Inc. Lease Agreement No.
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together with all other obligations of Debtor to Secured Party now existing or
hereafter arising, whether direct or indirect, contingent or absolute and
whether as maker or surety and including, but not limited to, future advances
and amounts advanced and expenses and attorneys' fees incurred pursuant to this
Security Agreement.
3. REAL ESTATE. Any Collateral attached to, or grown upon, land (such as
fixtures, crops, timber or minerals) will be grown upon or
attached to the following described real estate: N/A
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and the name of the record owner of such real estate (if other than Debtor) is:
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4. COPY -- FILING. A carbon, photocopy or other reproduction of this
Security Agreement may be filed as a financing statement. IF FOR FIXTURES TIMBER
OR MINERALS, SUCH A FILING SHALL BE FILED FOR RECORDING IN THE REAL ESTATE
RECORDS.
5. DEBTORS. Each of the undersigned, if more than one, execute this
Security Agreement as his, her, its, their joint and several obligation and it
shall be binding upon and fully enforceable against either or both, or any or
all of them, and reference herein to "Debtor" shall in such case be deemed to be
plural, provided however that nothing contained herein shall extend personal
liability under any of the Obligations as to which such Debtor is not otherwise
liable.
6. COLLATERAL. Debtor represents, warrants and agrees:
a. All Collateral is bona fide and genuine and Debtor is authorized to
grant a security interest in the Collateral, free and clear of all liens and
encumbrances, except the security interest created hereby and except for the
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security interests of Firstar Bank Iowa, N.A., being paid off with the proceeds
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of this transaction.
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b. Debtor's principal place of operation is the address shown herein,
and Debtor shall promptly give Secured Party written notice of any change
thereof, unless prior written consent of Secured Party is obtained. All
Collateral and all of the Debtor's business records are now kept, and shall
continue to be kept, at such address, or if not, at 000 Xxxx Xxxxx Xxxxxx, Xxxxx
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2950, Charlotte, NC 28002
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THIS AGREEMENT SPECIFICALLY INCLUDES ALL OF THE ADDITIONAL PROVISIONS SET FORTH
BELOW AND ON THE REVERSE SIDE HEREOF. DEBTOR ACKNOWLEDGES RECEIPT OF A FULLY
COMPLETED COPY OF THIS SECURITY AGREEMENT.
DATED: May 29 19 97
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/s/ Xxxxxx X. Xxxxxx ADDRESS OF SECURED PARTY (FROM WHICH INFORMATION
-------------------------------------------------------------------- CONCERNING THE SECURITY INTEREST MAY BE OBTAINED)
Xxxxxx X. Xxxxxx, President (Debtor)
Xxxxxx Xxxx Xxxxx Inc.
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(Debtor)
000 Xxxx Xxxxx Xxxxxx, Suite 0000 000 Xxxxxx Xxxxxx XX
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Number and Street Number and Street
Charlotte Cedar Rapids
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City City
North Carolina Iowa
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County State County State
1. REPRESENTATIONS AND AGREEMENTS. Debtor represents and warrants to
Secured Party, and agrees that:
a. If a corporation or other business entity, Debtor is duly
organized, existing, and is qualified and in good standing in all states in
which it is doing business, and the execution, delivery and performance of this
Security Agreement are within Debtor's powers. have been duly authorized, and
are not in contravention of law or the terms of Debtor's charter, bylaws, if
any, or any indenture, agreement, or undertaking to which Debtor is a party, or
by which it is bound. If an individual, Debtor is of legal age. Debtor will not
change his, her or its name, or identity unless written notice is given in
advance to Secured Party.
b. Debtor shall maintain insurance upon the Collateral which is
tangible property against all customarily insured risks for the full insurable
value thereof (and furnish Secured Party with duplicate policies if Secured
Party so requests), loss to be payable to Debtor and Secured Party as their
respective interests may appear. In the event of any loss or damage to any
Collateral, Debtor will give Secured Party written notice thereof forthwith,
promptly file proof of loss with the appropriate insurer and take all other
steps necessary or appropriate to collect such insurance. If Secured Party so
elects, Secured Party shall have full authority to collect all such insurance
and to apply any amount collected to amounts owed hereunder, whether or not
matured. Secured Party shall have no liability for any loss which may occur by
reason of the omission or the lack of coverage of any such insurance.
c. Debtor shall at all times maintain Collateral which is tangible
property in good condition and repair, defend at Debtor's expense all Collateral
rom all adverse claims and shall not use any of the Collateral for any illegal
purpose.
d. Debtor shall (i) keep such books and records pertaining to the
Collateral and to Debtor's business operations as shall be satisfactory to
Secured Party; (ii) permit representatives of Secured Party at any time to
inspect the Collateral and inspect and make abstracts from Debtor's books and
records and (iii) furnish to Secured Party such information and reports
regarding the Collateral and Debtor's business operations and its financial
status, as Secured Party may from time to time reasonably require. SECURED PARTY
IS HEREBY AUTHORIZED TO REQUEST CONFIRMATION OF SUCH INFORMATION OR ADDITIONAL
INFORMATION OF ANY KIND WHATSOEVER DIRECTLY FROM ANY THIRD PARTY HAVING DEALINGS
WITH DEBTOR. SECURED PARTY IS FURTHER IRREVOCABLY AUTHORIZED TO ENTER DEBTOR'S
PREMISES TO INSPECT THE COLLATERAL.
e. Debtor shall give such notice in writing (including but not limited
to notice of assignment or notice to pay Secured Party directly) as Secured
Party may require at any time to any or all account debtors, with respect to
accounts which are Collateral, and, if Secured Party shall so request, deliver
to Secured Party copies of any and all such notices.
f. Debtor shall promptly transmit to Secured Party all information
that it may have or receive with respect to Collateral or with respect to any
account debtor which might in any way affect the value of the Collateral or
Secured Party's rights or remedies with respect thereto.
g. Unless in default under this Security Agreement, Debtor may sell
inventory in the ordinary course of business and consume any raw materials or
supplies, the use and consumption of which are necessary to carry on Debtor's
business. Debtor shall not otherwise consume, assign or transfer any Collateral
without prior written consent of Secured Party. The provision of this Security
Agreement granting a security interest in proceeds shall not be construed to
mean that Secured Party consents to any sale or disposition of any Collateral.
h. Debtor shall pay when due all taxes, assessments, and any other
governmental levy which is, or may be, levied against any Collateral, and shall
otherwise maintain the Collateral tree of all liens, charges, and encumbrances
(except liens set forth herein and the security interest created hereby).
i. Debtor shall not store any Collateral with any warehouseman without
Secured Party's consent.
j. Debtor shall promptly, unless Secured Party shall waive such
requirement in writing, deliver to Secured Party all certificates of title, if
any, (or any other documents evidencing title) to all Collateral with such
proper notations, assignments or endorsements as may be necessary or appropriate
to create, preserve or perfect Secured Party's security interest in the
Collateral.
k. Debtor shall, at its cost and expense, execute, deliver, file or
record (in such manner and form as Secured Party may require) any assignment,
financing statement or other paper that may be necessary or desirable, or that
Secured Party may request, in order to create, preserve or perfect any security
interest granted hereby or to enable Secured Party to exercise and enforce its
rights hereunder or under any Collateral. Secured Party is further granted the
power, coupled with an interest, to sign on behalf of Xxxxxx as attorney-in-fact
and to file one or more financing statements under the Uniform Commercial Code
naming Debtor as debtor and Secured Party as secured party and describing the
Collateral herein specified.
2. EXPENSES. Debtor upon demand shall pay to Secured Party forthwith the
amounts of all expenses, including reasonable attorneys' fees and legal
expenses, incurred by Secured Party in seeking to collect any sums secured
hereunder or to enforce any rights in the Collateral. Such amounts shall be
secured hereby, and if not paid on demand shall bear interest at the highest
rate payable on any of the Obligations.
3. COLLECTION AUTHORITY ON ACCOUNTS. Debtor hereby irrevocably appoints
Secured Party its true and lawful attorney, with full power to substitution, in
Secured Party's name, Xxxxxx's name or otherwise, for Secured Party's sole use
and benefit, but at Debtor's cost and expense, to exercise, if Secured Party
shall elect after an event of default has occurred (whether or not Secured Party
then elects to exercise any other of its rights arising upon default) all or any
of the following powers with respect to all or any accounts which are
Collateral:
a. To execute on Xxxxxx's behalf assignments of any or all accounts
which are Collateral to Secured Party, and to notify account debtors thereunder
to make payments directly to Secured Party;
b. To demand, sue for, collect, receive and give acquittance
for any and all moneys due or to become due upon or by virtue
thereof;
c. To receive, take, endorse, assign and deliver any and all checks,
notes, drafts, documents and other negotiable and non-negotiable instruments and
chattel paper taken or received by Secured Party in connection therewith;
d. To settle, compromise, compound, prosecute or defend any action or
proceeding with respect thereto;
e. To sell, transfer, assign or otherwise deal in or with the same or
the proceeds thereof or the relative goods, as fully and effectually as if
Secured Party were the absolute owner thereof; and
f. To extend the time of payment of any or all thereof and to make any
allowance and other adjustments with reference thereto.
Any funds collected pursuant lo such powers shall be applied to the payment of
the Obligations. The exercise by Secured Party of, or failure to so exercise,
any of the foregoing authority, shall in no manner affect Debtor's liability to
Secured Party on any of the Obligations. Secured Party shall be under no
obligation or duty to exercise any of the powers hereby conferred upon it and it
shall be without liability for any act or failure to act in connection with the
collection of or the preservation of any rights under any such accounts. Secured
Party shall not be bound to take any steps necessary to preserve rights in any
instrument or chattel paper against prior parties.
4. SET OFF. In the event of default hereunder, Secured Party, at its option
at any time, and without notice to Debtor, may apply against the Obligations any
property of Debtor held by Secured Party. As additional security for payment of
the Obligations, Debtor hereby grants to Secured Party a security interest in
any funds or property of Debtor now or hereafter in possession of Secured Party
and with respect thereto Secured Party will have all rights and remedies herein
specified.
5. WAIVER. Debtor waives protest, notice of dishonor, and presentment of
all commercial paper at any time held by Secured Party on which Debtor is in any
way liable, notice of non-payment at maturity of any account or chattel paper,
and notice of any action taken by Secured Party except where notice is expressly
required by this Security Agreement or cannot by law be waived.
6. DEFAULT. Debtor will be in default upon the occurrence of any of the
following events: (a) failure to make the payment, when due and payable. of any
of the Obligations, (b) failure of the performance of any obligation or covenant
contained or referred to herein; (c) any warranty, representation or statement
made or furnished to Secured Party by or on behalf of Debtor proves to have been
false in any material respect when made or furnished; (d) any event which
results in the acceleration of the maturity of the indebtedness of Debtor or any
guarantor or co-maker of any of the Obligations to others under any indenture,
agreement or undertaking; (e) loss, theft, damage, destruction or encumbrance
to, or of, the Collateral or the making of any levy, seizure of attachment
thereof or thereon, (f) death of (if an acceptable management substitute has not
been named within ninety (90) days), dissolution of, termination of existence
of, insolvency of, business failure of, appointment of a receiver of any part of
the property of, assignment for the benefit of creditors by, or the commencement
of any proceeding under any bankruptcy or insolvency law by or against, Debtor
or any guarantor or co-maker of any of the Obligations; (9) the occurrence or
nonoccurrence of any event or events which causes the Secured Party, in good
faith, to deem itself insecure for any reason whatsoever.
In any such event Secured Party may at its option declare any or all of the
Obligations to be due and payable and such sums shall then be due and payable
immediately, without notice or demand.
7. RIGHTS AND REMEDIES ON DEFAULT. After the occurrence of any event of
default, Secured Party may exercise at any time and from time to time any rights
and remedies available to it under applicable law, including but not limited to
the right to sell, lease or otherwise dispose of the Collateral, and the right
to take possession of the Collateral. FOR THAT PURPOSE SECURED PARTY MAY ENTER
UPON ANY PREMISES ON WHICH THE COLLATERAL OR ANY PART THEREOF MAY BE SITUATED
AND REMOVE IT. Secured Party may require Debtor to assemble the Collateral and
make it available at a place to be designated by Secured Party which is
reasonably convenient to both parties. If at the time of repossession any of the
Collateral contains other personal property not included in the Collateral,
Secured Party may take such personal property into custody and store it at the
risk and expense of Debtor. Xxxxxx agrees to notify Secured Party within
forty-eight (48) hours after repossession of the Collateral of any such other
personal property claimed, and failure to do so will release Secured Party and
its representatives from any liability for loss or damage thereto. Any notice of
intended disposition of any of the Collateral required by law shall be deemed
reasonable if such notice is given at least ten (10) days before the time of
such disposition. Any proceeds of any disposition by Secured Party of any of the
Collateral may be applied by it to the payment of expenses in connection with
the Collateral, including but not limited to repossession expenses and
reasonable attorneys' fees and legal expenses, and any balance of such proceeds
shall be then applied against the obligations and other amounts secured hereby
in such order of application as Secured Party may elect.
8. GENERAL
a. Secured Party may, as its option, pay any tax, assessment, or other
Governmental levy, or insurance premium or any other expense or charge relating
to Collateral which is payable by Debtor (and not timely paid by it), and
further may pay any filing or recording fees. Any amount or amounts so paid,
with interest thereon at the highest rate payable on any of the Obligations
(from the date of payment until repaid) shall be secured hereby and shall be
payable upon demand.
b. Secured Party shall not be deemed to have waived any of its rights
hereunder or under any other agreement, instrument or paper signed by Debtor
unless such waiver be in writing and signed by Secured Party. No delay or
omission on the part of Secured Party in exercising any right shall operate as a
waiver of such right or any other right. A waiver on any one occasion shall not
be construed as a bar to, or waiver of, any right or remedy on any future
occasion.
c. Any notice, if mailed, shall be deemed given when mailed postage
prepaid, addressed to Debtor at its address shown above, or at any other address
of Debtor appearing on Secured Party's records.
d. Covenants, representations, warranties and agreements herein set
forth shall be binding upon Debtor, its legal representatives, successors and
assigns. This Security Agreement may be assigned by Secured Party and all rights
and privileges of Secured Party under this Security Agreement shall then inure
to the benefit of its successors and assigns.
e. If any provision of this Security Agreement shall be for any reason
held to be invalid or unenforceable, such invalidity or unenforceability not
affect any other provision hereof, but this Security Agreement shall be
construed as if such invalid or unenforceable provision had never been contained
herein.
f. If Debtor is a guarantor, endorser, co-maker, or an accommodation
party with respect to the Obligations, Debtor hereby waives the benefit of any
and all defenses and claims of damage which are dependent upon Xxxxxx's
character as a party other than the maker. Each party to any of the Obligations
hereby consents to and waives notice of (1) any and all extensions (whether or
not for longer than the original period) granted as to the time of payment of
any or all of the Obligations, and (2) any renewal of any or all of the
Obligations.
g. This Security Agreement and all rights and duties hereunder,
including but not limited to all matters of construction, validity, and
performance shall be governed by the law of Iowa.
h. Unless otherwise defined in the context otherwise requires, all
terms used herein which are defined in the Iowa Uniform Commercial Code shall
have the meanings therein stated. The rights and remedies herein conferred upon
Secured Party shall be in addition to, and not in substitution or in derogation
of, rights and remedies conferred by the Iowa Uniform Commercial Code and other
applicable law.
i. All words and phrases used herein shall be construed as in the
singular or plural number, and as masculine, feminine or neuter gender. as
context may require.
j. Captions are inserted for convenience only and shall not be taken
as altering the text.
