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EXHIBIT 10.2
COMPASS BANK
SECURITY AGREEMENT
KNOW ALL MEN BY THESE PRESENTS: That
WHEREAS, ▇▇▇▇ ▇▇▇▇▇▇▇▇ TRANSPORTATION COMPANY, INC., an Alabama
corporation ("DEBTOR") is, contemporaneously with the execution hereof, becoming
indebted to COMPASS BANK (the "BANK"), on loan in the principal amount of TEN
MILLION AND NO/100 DOLLARS ($10,000,000.00), or so much thereof as may be
advanced under the Note as hereafter defined (the "LOAN"), as evidenced by one
or more Promissory Notes of various dates, payable to Bank with interest thereon
and as provided therein (each a "NOTE" and collectively, the "NOTES"), and as
secured by a Credit and Security Agreement from Debtor to Bank (the "LOAN
AGREEMENT") and the other Loan Documents defined therein (the "LOAN
DOCUMENTS"); and
WHEREAS, Debtor may hereafter become indebted to Bank or a subsequent
holder of this Security Agreement on loans or otherwise (said Bank and any
subsequent holder of this Security Agreement being referred to herein as
"SECURED PARTY"); and
WHEREAS, Debtor agrees to make this Security Agreement (the
"AGREEMENT") to further secure said Notes and any and all other future or
additional Liabilities of Debtor to Secured Party (said Liabilities, as defined
in paragraph 5, being referred to herein as "LIABILITIES").
NOW, THEREFORE, the undersigned Debtor, in consideration of making the
Loan, and to secure the prompt payment of same, with the interest thereon, and
any extensions, modifications, or renewals of same, and any and all Liabilities
of Debtor to Secured Party, and further to secure the performance of the
covenants, conditions, and agreements hereinafter set forth and set forth in the
Note, and as may be set forth in the Loan Agreement and other Loan Documents or
other instruments evidencing or securing other Liabilities of Debtor to Secured
Party, and further to secure any and all charges incurred by Secured Party on
account of Debtor, including but not limited to attorney's fees, does hereby
agree as follows:
1. DEFINITIONS. All terms used herein which are defined in the Alabama
Uniform Commercial Code (the "CODE") shall have the same meaning herein as in
the Code unless otherwise indicated herein.
2. INCORPORATION BY REFERENCE. All of the terms and provisions of the
Note are hereby incorporated by reference as though set forth in full herein.
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3. SECURITY INTERESTS. Debtor hereby grants to Secured Party title to
and a security interest in the Collateral described in paragraph 4 hereof to
secure the performance and payment of the Liabilities described in paragraph 5
hereof.
4. COLLATERAL. As security for the payment and performance of all
Liabilities of the Debtor, Debtor grants Secured Party title to and a security
interest in the following described property of the Debtor (herein collectively
referred to as the "COLLATERAL"):
4.01 Equipment. The items of personal property described on Exhibit
"A" hereto and all equipment and other personal property of every nature
whatsoever now or hereafter owned by the Debtor and purchased with the proceeds
of the Loan, wheresoever the same may be located.
4.02 Proceeds. Proceeds (including insurance, contract and tort
claims) and products of all of the foregoing Collateral.
5. LIABILITIES. "LIABILITIES" of Debtor, as used herein, shall mean:
5.01 Notes. The Notes, with interest as therein provided, and all
extensions, modifications, or renewals thereof.
5.02 Other Indebtedness. Any and all other obligations,
indebtedness, and liabilities of the Debtor to the Secured Party, whether joint
or several, due or to become due, liquidated or unliquidated, now existing or
hereafter arising, absolute or contingent, direct or indirect, and all
extensions, modifications, and renewals thereof, and whether incurred or given
as maker, endorser, guarantor, surety, or otherwise.
6. REPRESENTATIONS, WARRANTIES, AND COVENANTS. The Debtor hereby
represents, warrants, and covenants as follows:
6.01 No Adverse Liens. Except for any security interest specifically
set forth on an addendum attached hereto, and except for the security interest
granted hereby, the Debtor is or (with respect to Collateral not presently owned
by Debtor will be) the lawful owner of all Collateral free from any adverse
lien, security interest, or encumbrance, and shall have full right to pledge,
sell, assign, or transfer the same to Secured Party. Debtor will defend the
Collateral against all claims and demands of all persons at any time claiming
the same or any interest therein.
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6.02 Financing Statements. No financing statement covering any
Collateral or any proceeds thereof is on file in any public office, except for
financing statements specifically set forth on an addendum attached hereto, if
any, and except for the financing statements executed by Debtor and Secured
Party. At the Secured Party's request, the Debtor will join with Secured Party
in executing one or more financing statements pursuant to the Code in form
satisfactory to the Secured Party, and will pay the cost of filing the same in
all public offices wherever filing is deemed by the Secured Party to be
necessary or desirable. The Debtor authorizes the Secured Party to prepare and
to file financing statements covering the Collateral signed only by the Secured
Party and to sign the Debtor's signature to such financing statements in
jurisdictions where Debtor's signature is required. The Debtor promises to pay
the Secured Party the fees incurred in filing the financing statements, which
fees shall become part of the Liabilities secured by this Agreement.
6.03 Inspection of Collateral and Records. The Secured Party may
examine and inspect the Collateral and records and documents related to the
Collateral at any time, wherever located.
6.04 Assignment or Sale. Debtor, its agents, servants, or employees
will not sell, assign, or offer to sell or assign or otherwise transfer the
Collateral, either in whole or in part, or any interest therein without the
written consent of the Secured Party.
6.05 Payment of Taxes and Insurance. Debtor will pay promptly all taxes
and assessments upon or with respect to the Collateral. Debtor hereby authorizes
Secured Party to discharge taxes, assessments, liens, security interests, or
other encumbrances at any time levied or placed on the Collateral, to pay for
any insurance on the Collateral required to be maintained by Debtor hereunder,
and to pay for, make, or provide for any maintenance, repair, or preservation of
the Collateral as the Secured Party shall deem reasonably necessary to preserve
its interests; provided, however, that Secured Party shall be under no
obligation to do so. Debtor agrees to reimburse Secured Party on demand with
interest at the rate set forth in the Note for any payment made or any expense
incurred by Secured Party pursuant to the foregoing authorization. Payments made
or expenses incurred by Secured Party pursuant to the foregoing authorization
shall be included in the Liabilities secured hereunder.
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6.06 Additional Representations of Debtor (Collateral). With respect to
all of the Collateral:
6.06(a) Such Collateral is used or bought primarily for
business purposes.
6.06(b) Such Collateral is being acquired with the proceeds of
the Note.
6.06(c) All such Collateral will be kept at the address of
Debtor shown below Debtor's signature. Debtor will promptly notify
Secured Party of any change in the location of the Collateral.
Except for transactions in the ordinary course of Debtor's trucking
business, Debtor, its agents or employees will not remove such
Collateral from said location without the prior written consent of
the Secured Party.
6.06(d) If certificates of title are issued or outstanding
with respect to such Collateral, the Debtor will cause the Secured
Party's interest to be properly noted thereon.
6.06(e) Debtor has and will maintain insurance on such
Collateral to the extent and against such hazards and liabilities as
is commonly done by companies of like nature, similarly situated,
including but not limited to public liability, theft, fire (with
extended coverage) insurance, and in the case of motor vehicles,
collision insurance, all containing such terms and for such periods
as may be reasonably satisfactory to the Secured Party; provided,
however, that Debtor may self-insure the Collateral against physical
damage up to an aggregate of $500,000 and provide insurance against
catastrophic loss thereof in excess of such self-insurance amount.
All such insurance will be maintained with insurance companies
reasonably acceptable to the Secured Party and will be payable to
the Secured Party and to the Debtor as their interests may appear.
All insurance policies shall provide for a minimum of ten (10) days'
written cancellation notice to the Secured Party and, at the Secured
Party's request, all policies shall be delivered to and held by the
Secured Party. If at any time the Secured Party is of the opinion
that the Debtor's insurance
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coverage is inadequate, the Debtor will, within ten (10) days after
written request by the Secured Party, obtain such insurance as the
Secured Party shall reasonably request. Secured Party is hereby made
attorney-in-fact for Debtor to obtain, adjust, and settle, in its
sole discretion, such insurance and to endorse any drafts or checks
issued in connection with such insurance.
6.06(f) Debtor agrees to prevent and protect against any
waste, damage, or destruction of such Collateral, and Debtor will
maintain the same in as good condition as it now is in, ordinary and
reasonable wear and tear excepted.
6.07 Name of Debtor. Debtor's name has always been as set forth on
the first page of this Agreement, except as otherwise disclosed in writing
to the Secured Party. Debtor will promptly advise the Secured Party in
writing of any change in Debtor's name.
7. SET OFF. The Secured Party is hereby given a continuing lien as
additional security for the Liabilities hereunder upon any and all monies,
securities, and other property of Debtor, and the proceeds thereof, now or
hereafter held or received by or in transit to the Secured Party from or for
Debtor, whether for safekeeping, custody, pledge, transmission, collection, or
otherwise, and also upon any and all deposit balances (general or special) and
credits of Debtor with, and any and all claims of Debtor against, the Secured
Party at any time existing, and upon an event of default hereunder, the Secured
Party may apply or set off the same against the Liabilities hereby secured.
8. EVENTS OF DEFAULT. Debtor shall be in default under this Agreement
upon the happening of any of the following events or conditions which is not
completely cured within any specific time period provided in any Loan Document:
8.01 Any Event of Default or failure to perform any obligation,
covenant, or liability contained or referred to herein, in the Notes, the
Loan Agreement, or any other Loan Document.
8.02 Assignment, transfer, or encumbrance or any unreimbursed loss,
theft, damage or destruction to or of any part of the Collateral (except
for sales or encumbrances of Collateral expressly authorized by the terms
of this Agreement), or any levy, seizure, injunction, or attachment
thereon.
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9. BIGHTS AND REMEDIES UPON DEFAULT. Upon occurrence of any of the
above events of default, the Secured Party shall have the following rights which
shall be cumulative with all other rights and remedies of Secured Party:
9.01 Acceleration and Other Rights. The right to declare all
Liabilities secured hereby to be immediately due and payable without
notice to or demand upon the Debtor or any other person. The Secured
Party, in addition to any remedies it may exercise under this Security
Agreement, the Note, under other documents executed in connection with the
Liabilities secured hereby, or under applicable law, may immediately and
without demand, exercise any and all of the rights of a secured party upon
default under the Alabama Uniform Commercial Code, all of which shall be
cumulative. Such rights shall include, without limitation:
9.01(a) The right to take possession of the Collateral
without judicial process and to enter upon any premises where the
Collateral may be located for the purposes of taking possession of,
securing, removing, and/or disposing of the Collateral without
interference from the Debtor and without any liability for rent,
storage, utilities or other sums.
9.01(b) The right to sell, lease, or otherwise dispose of any
or all of the Collateral, whether in its then condition or after
further processing or preparation, at public or private sale. Unless
the Collateral is perishable or threatens to decline speedily in
value or is of a type customarily sold on a recognized market, the
Secured Party shall give the Debtor at least five (5) days' prior
notice of the time and place of any public sale of the Collateral or
of the time after which any private sale or other intended
disposition of the Collateral is to be made, all of which the Debtor
agrees shall be reasonable notice of any sale or disposition of the
Collateral.
9.01(c) Upon request of Secured Party, Debtor shall assemble
and make the Collateral available to Secured Party at a place
reasonably convenient to Debtor and Secured Party.
9.02 Attorney-in-Fact. To effectuate the rights and remedies of the
Secured Party upon default, Debtor does hereby irrevocably appoint Secured
Party attorney-in-fact for the Debtor, with full power of
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substitution to, after default of Debtor, sign, execute, and deliver any and all
instruments and documents and do all acts and things to the same extent as
Debtor could do, and to sell, assign, and transfer any Collateral to Secured
Party or any other party.
9.03 Receiver. Secured Party shall have the right to apply for and have
a receiver appointed by a court of competent jurisdiction, in connection with
any action taken by the Secured Party to enforce its rights and remedies
hereunder, to manage, protect, and preserve the Collateral and continue the
business of the Debtor, to collect all revenues and profits thereof, and to
apply the same to the payment of all expenses and other charges of such
receivership, including but not limited to the compensation of the receiver, and
to the payment of Liabilities secured hereby, until a sale or other disposition
of such Collateral shall be finally made and consummated, or until all
Liabilities secured hereby shall have been paid.
9.04 Proceeds of Sale; Deficiency. The proceeds of any sale or other
disposition of Collateral by the Secured Party shall be applied first to the
expenses (including, but not limited to legal expenses and reasonable attorneys'
fees) of retaking, holding, storing, and processing the Collateral and preparing
the Collateral for sale, selling and the like and collecting or attempting to
collect the Liabilities secured by this Agreement; then to the satisfaction of
the Liabilities secured hereby with the application of such proceeds to
particular Liabilities or to interest or principal as the Secured Party, in its
sole discretion, shall determine; and the balance, if any, to be paid to Debtor
or to be paid as otherwise provided by Law. The enumeration of the foregoing
rights is not intended to be exhaustive, and the exercise of any right shall not
preclude the exercise of any other rights, all of which shall be cumulative.
Debtor agrees that any delay by the secured party in exercising any right or
remedy hereby granted shall not be construed as a waiver by the Secured Party of
any of its rights or remedies hereunder. Secured Party may permit the Debtor to
remedy any default, but such shall not be a waiver of the default so remedied,
and Secured Party's waiver of any default shall not be a waiver of any
subsequent or prior defaults.
10. WAIVERS. In addition to any other waivers, as set forth herein or
in the Note, against the Liabilities secured hereby, Debtor expressly waives, to
the extent allowed by law, all claims and rights to claim any exemptions allowed
or allowable under the Constitution or laws of the United States, the State of
Alabama, or any other jurisdiction. All rights and remedies of Secured Party
hereunder or with respect to Liabilities or Collateral shall be cumulative, and
in addition to any other right
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available to Secured Party by statute or at law or in equity, and may be
exercised singularly or concurrently. In the event that any one or more of the
terms or provisions of this Agreement or of the Note shall be invalid, illegal,
or unenforceable in any respect, the validity of the remaining terms or
provisions shall in no way be affected, prejudiced or disturbed thereby.
11. ASSIGNMENT OF LIABILITIES. If at any time or times by sale,
assignment, negotiation, pledge, or otherwise, Secured Party transfers any or
all of the Liabilities, such transfer shall, unless otherwise specified in
writing, carry with it Secured Party's rights and remedies under this Agreement
with respect to such Liabilities transferred, and the transferee shall become
vested with such rights and remedies whether or not they are specifically
referred to in the transfer. If and to the extent Secured Party retains any of
the Liabilities, Secured Party shall continue to have the rights and remedies
herein set forth with respect thereto.
12. NOTICES. Any demand upon or notice to Debtor that the Secured
Party may elect to give shall be effective if hand delivered to Debtor,
deposited in the United States mail, postage prepaid, return receipt requested,
or delivered to a telegraph company addressed to Debtor at the address shown
below Debtor's signature, or if Debtor has notified the Secured Party in writing
of a change of address, to Debtor's last address so notified. Demands or notices
addressed to Debtor's address at which the Secured Party customarily
communicates with Debtor shall also be effective.
13. AGREEMENT UNDER SEAL. This Agreement is given under the seal of
all persons signing as and for the Debtor. It is intended by Debtor and all
persons signing for Debtor that this instrument is and shall constitute a sealed
instrument according to law.
14. HEADINGS. The headings of the sections, paragraphs, and
subdivisions of this Agreement are for convenience of reference only, are not to
be considered a part hereof, and shall not limit or otherwise affect any of the
terms hereof.
15. SUCCESSORS AND ASSIGNS. The provisions of this Agreement shall
inure to and bind not only the parties hereto, but also their respective heirs,
executors, administrators, successors, and assigns.
16. APPLICABLE LAW. This Agreement, the Note, and the Loan Documents,
except as may otherwise be provided therein, shall be construed and governed,
and their validity determined, according to the laws of the State of Alabama.
State of Alabama.
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IN WITNESS WHEREOF, the undersigned Debtor and Secured Party have
caused this Agreement to be duly executed and delivered effective on the 16th
day of March, 1999.
ATTEST: DEBTOR:
▇▇▇▇ ▇▇▇▇▇▇▇▇ TRANSPORTATION
COMPANY, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------- ----------------------------------
Its: Secretary Its: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇-CFO/Exec VP
------------ -----------------------------
Debtor's address: ▇▇▇▇▇ ▇, ▇▇▇ ▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
WITNESS: SECURED PARTY:
COMPASS BANK
/s/ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------- --------------------------------
Its:▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇-City
President
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Secured Party's address: ▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
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STATE OF ALABAMA )
COUNTY OF ▇▇▇▇▇▇▇ )
I, the undersigned, a Notary Public in and for said County in said
State, hereby certify that ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, whose name as CFO/Exec VP of ▇▇▇▇
▇▇▇▇▇▇▇▇ TRANSPORTATION COMPANY, INC., an Alabama corporation, is signed to the
foregoing instrument, and who is known to me, acknowledged before me on this day
that, being informed of the contents of the above and foregoing instrument, he,
as such officer and with full authority, executed the same voluntarily for and
as the act of said corporation.
Given under my hand and official seal of office this 16th day of March,
1999.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Notary Public
[NOTARIAL SEAL] My commission expires: MY COMMISSION
EXPIRES JAN. 5,2002
STATE OF ALABAMA )
COUNTY OF ▇▇▇▇▇▇▇ )
I, the undersigned, a Notary Public in and for said County in said
State, hereby certify that ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, whose name as City President of
COMPASS BANK, an Alabama banking corporation, is signed to the foregoing
instrument, and who is known to me, acknowledged before me on this day that,
being informed of the contents of the above and foregoing instrument, he, as
such officer and with full authority, executed the same voluntarily for and as
the act of said corporation.
Given under my hand and official seal of office this 16th day of March,
1999.
/s/ Raybell Pethon
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Notary Public
[NOTARIAL SEAL] My commission expires:
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