EXHIBIT 10.18
SECURITY AGREEMENT
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THIS SECURITY AGREEMENT is made and entered into effective the
18th day of October, 1996, by COMMONWEALTH PREMIUM FINANCE CORPORATION,
a Kentucky corporation, whose address is ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ (hereinafter referred to as "Debtor");
and BANK ONE, KENTUCKY, NA, a National Banking Association, ▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (hereinafter
referred to as "Secured Party").
IT IS AGREED BY THE PARTIES AS FOLLOWS:
1. For value received, Debtor does hereby grant unto Secured Party a
security interest in and to all the collateral described in numerical
Paragraph two (2) hereof to secure all the indebtedness referred to in
numerical Paragraph three (3) hereof.
2. The collateral covered by this Security Agreement is (a) all of
Debtor's property described in Schedule A hereto and any supplemental
exhibits thereto, and (b) all proceeds and products thereof (all of
which collateral is hereinafter collectively referred to as the
"Collateral").
3. This Security Agreement is made as collateral security for:
a. The payment of an indebtedness for borrowed money evidenced
by a certain Revolving Credit Note (the "Note") dated
October 18, 1996, executed by Debtor, as maker, in the
original principal amount of One Million and No/100 Dollars
($1,000,000.00) with interest thereon from date at the rate
set forth therein, payable according to the terms and
conditions set forth therein to the order of Secured Party.
b. Performance of all obligations of Debtor under a Loan
Agreement (the "Loan Agreement") by and among Debtor, ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇., and D. ▇▇▇▇▇▇▇ ▇▇▇▇▇,
and Secured Party relating to the loan evidenced by the
Note, and each agreement of Debtor therein is incorporated
by reference herein; and
c. All other liabilities and obligations of whatever kind or
type of Debtor to Secured Party, including any guarantees of
the Debtor to Secured Party, whether created directly or
acquired by Secured Party by assignment or otherwise,
whether now existing or hereafter created, arising or
acquired, absolute or contingent, joint or several, due or
to become due (the foregoing obligations are herein
collectively referred to as "Indebtedness").
4. Debtor represents and warrants to Secured Party that:
a. All the Collateral is used or will be used for business;
b. Debtor is the absolute owner of the legal and beneficial
title to the Collateral, (exclusive of hereafter acquired,
replacement or hereafter created items), and is in full possession
thereof; and
c. Except as previously disclosed in writing, the Collateral is
free and clear of all liens, encumbrances and adverse claims
whatsoever;
d. Debtor has the right to enter into this Security Agreement.
5. Debtor represents, warrants and agrees that:
a. Debtor shall defend the Collateral against the claims and
demands of all persons.
b. Debtor shall not:
i. permit any loan or security interest (other than
Secured Party's security interest granted herein and those
liens previously disclosed in writing) to attach to any of
the Collateral;
ii. permit any of the Collateral to be levied upon under
any legal process; or
iii. dispose of or enter or agree to enter into any sale of
any of the Collateral, whether or not inventory,
without prior written consent of Secured Party.
c. Debtor shall insure or have insured the tangible Collateral
for the benefit of Secured Party (who shall be the loss payee) in such
amounts, for such risks and with such company as Secured Party may
request, and promptly deliver all policies with respect thereto to
Secured Party, or in the event Debtor at any time has not maintained and
delivered to Secured Party such requested policies of insurance, Secured
Party shall, in its sole and absolute discretion, whether or not any
Event of Default, as defined in this Security Agreement, has occurred,
have the right to place and effect such insurance as Secured Party deems
appropriate at the Debtor's expense and in the event Secured Party
elects to pay for such insurance coverage, Debtor shall reimburse
Secured Party for the amount(s) so paid plus interest thereon at the
rate charged on the unpaid balance of the promissory note mentioned in
Paragraph 3(a) of this Security Agreement.
d. Debtor shall keep the Collateral consisting of tangible
property, if any, in good condition.
e. Debtor shall advise Secured Party in writing, at least
thirty (30) days prior thereto, of any change in Debtor's place of
business or mailing address.
f. Debtor shall not conduct business under any other name than
that given above nor change or reorganize the type of business entity
under which it does business except upon prior written approval of
Secured Party. If such approval is given, Debtor agrees that all
documents, instruments and agreements demanded by Secured Party shall be
prepared and filed at Debtor's expense before such change of name or
business entity occurs.
g. Debtor shall execute and deliver to Secured Party upon
request new UCC-1 Financing Statements describing the same Collateral
specified herein for recordation where necessary in Secured Party's sole
discretion to perfect Security Party's security interest in the
Collateral, and Debtor shall pay all filing and recording fees and
filing and recording taxes in connection with the filing and/or
recordation of such Statements, and, if paid by the Secured Party,
Debtors will reimburse Secured Party therefor upon demand of Secured
Party.
h. Debtor hereby irrevocably appoints Secured Party as Debtor's
attorney-in-fact to do all acts and things which Secured Party may deem
necessary or appropriate to perfect and continue perfected the security
interest created by this Security Agreement and to protect and, in case
of an Event of Default hereunder, sell the Collateral, including, but
not limited to, the execution in Debtor's name as Debtor's irrevocable
attorney-in-fact:
i. notifications and agreements to sell where sale is
permitted,
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ii. any documents or papers necessary or helpful to comply
with the terms of any agreements relative to any of
the Collateral, and
iii. UCC-1 (and other) Financing Statements covering the
Collateral and filing and recordation of same wherever
Secured Party deems appropriate, with Debtor to
reimburse Secured Party for all filing and recording
fees, taxes and other expenses in connection therewith
upon demand of Secured Party.
Provided, however, the power of attorney granted hereby shall
survive the disability of the principal but when all the Indebtedness is
fully paid and performed and Debtor has no obligation to or commitment
for loan(s) from Secured Party, this power of attorney shall become null
and void upon Secured Party's receipt of written notification from
Debtor to such effect.
i. The Indebtedness shall be paid to Secured Party in
accordance with the terms thereof.
j. Debtor shall comply in all respects with any other agreement
between Debtor and Secured Party.
k. Debtor shall permit Secured Party and/or its agents to
inspect and appraise the Collateral and inspect the books and records of
Debtor at all reasonable times and from time to time, and shall pay all
expenses Secured Party may incur in connection with any such
inspection(s) and appraisal(s).
6. Upon the occurrence of any "Event of Default," which, for the
purposes of this Security Agreement means any default in, or breach of,
any covenant, agreement, representation or warranty by Debtor under the
provisions of any document evidencing any of the Indebtedness or other
obligations of Debtor to Secured Party or of any other agreement
regarding any of the Indebtedness, this Security Agreement, the Loan
Agreement and any mortgage(s) or other security agreement(s) securing or
otherwise relating to any of the Indebtedness, Secured Party shall have
all rights and remedies in and against the Collateral and otherwise of a
secured party under the Uniform Commercial Code and the other applicable
law of Kentucky (and all such other states where any part of the
Collateral may be located, if applicable) and all other applicable laws
and all rights provided herein, in all other documents evidencing,
securing or related to any of the Indebtedness, or in any other
applicable security or loan agreement, all of which rights and remedies
shall, to the full extent permitted by law, be cumulative. In addition,
Secured Party may require Debtor, at Debtor's sole expense, to assemble
the Collateral and make it available to Secured Party at the place or
places to be designated by Secured Party and Debtor. Secured Party
shall have the right to sell the Collateral at public or private sale.
Debtor agrees to pay to Secured Party, as part of the Indebtedness, all
amounts paid by Secured Party, including, but not limited to:
a. Secured Party's attorney's fees, to the extent not
prohibited by applicable law, in connection with the
enforcement of any of Debtor's obligations hereunder or
contained in the documents evidencing the Indebtedness, with
interest thereon at the highest rate provided for in any of
the Indebtedness,
b. for taxes, levies and prior liens and insurance on, repairs
to, maintenance of, or transporting or otherwise caring for,
the Collateral, and
c. in taking possession of or preserving the Collateral.
7. The requirement of reasonable notice of the time and place of
disposition of Collateral by Secured Party shall be conclusively deemed
to have been met if such notice is mailed, postage prepaid, to Debtor's
address specified above at least ten (10) days before the time of the
sale or disposition. Secured
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Party may bid upon and purchase any or all of the Collateral at any
public sale thereof. Secured Party may dispose of all or any part of
the Collateral at one or more times and from time to time and in one or
more lots or parcels, and upon such terms and conditions, including a
credit sale, as Secured Party determines in its sole discretion.
Secured Party shall apply the net proceeds of any such disposition of
the Collateral (after deducting therefrom all costs incurred in
connection therewith, or incidental to the holding, preparing for sale,
in whole or in part, of the Collateral, including Secured Party's
attorney's fees and court costs) to the Indebtedness and any other
obligations of Debtor to Secured Party in the order elected by Secured
Party in its sole discretion, and any remaining proceeds shall be paid
to the Debtor or such other party as is entitled thereto.
8. This is a continuing Security Agreement and all the rights, powers
and remedies hereunder shall apply to all past, present and future
indebtedness of Debtor to Secured Party, including any indebtedness
arising under subsequent transactions which shall either continue the
Indebtedness, increase or decrease it, or from time to time create new
indebtedness or additional indebtedness whether or not all or any prior
indebtedness has been satisfied, and notwithstanding the death,
incapacity or bankruptcy of Debtor, or any other event or proceeding
affecting Debtor.
9. The rights, powers and remedies given to Secured Party by this
Security Agreement shall be in addition to all rights, powers and
remedies given to the Secured Party by virtue of any other agreement now
existing or subsequently entered into by and between the parties hereto
and any statute or rule of law. Secured Party may exercise its right of
set off with respect to the Indebtedness in the same manner as if the
Indebtedness were unsecured. Any waiver, forbearance, failure or delay
by Secured Party in exercising any right, power or remedy hereunder
shall not be deemed to be a waiver of such right, power or remedy, and
any single or partial exercise of any right, power or remedy hereunder
shall not preclude the further exercise thereof; and every right, power
and remedy of Secured Party shall continue in full force and effect
until such right, power or remedy is specifically waived by an
instrument in writing executed by Secured Party.
10. DEBTOR HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY
RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED
HEREON OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS SECURITY
AGREEMENT OR ANY OTHER DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF SECURED
PARTY, DEBTOR AND ANY GUARANTORS. DEBTOR ACKNOWLEDGES AND AGREES THAT
IT HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION AND
THAT THIS PROVISION IS A MATERIAL INDUCEMENT TO SECURED PARTY.
11. The Debtor agrees that the sole proper venue for the determination
of any litigation commenced by either Debtor or Secured Party on any
basis shall be in a court of competent jurisdiction which is located in
Fayette County, Kentucky, and the parties hereby expressly declare that
any other venue shall be improper and Debtor expressly waives any right
to a determination of any such litigation against Debtor by a court in
any other venue. Debtor further agrees that service of process by any
judicial officer or by registered or certified U.S. mail shall establish
personal jurisdiction over Debtor, and Debtor waives any rights under
the laws of any state to object to jurisdiction within the Commonwealth
of Kentucky. The aforesaid means of obtaining personal jurisdiction and
perfecting service of process are not intended to be exclusive, but are
cumulative and in addition to all other means of obtaining personal
jurisdiction and perfecting service of process now or hereafter provided
by the laws of the Commonwealth of Kentucky or by any other state in an
action brought by Secured Party in such state.
12. The laws of the Commonwealth of Kentucky shall govern the
construction of this Security Agreement and the rights, remedies and
duties of the parties hereto, unless the laws of the state where the
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Collateral or part thereof is situated dictate that the laws of such
other state shall govern with respect thereto.
13. This Security Agreement shall bind Debtor and Debtor's heirs,
successors and assigns and shall inure to the benefit of Secured Party
and its successors and assigns.
14. Time shall be of the essence in the performance of each of the
Debtor's obligations under this Security Agreement.
15. A judicial decree, order or judgment holding any provision herein
invalid or unenforceable shall not in any way impair or preclude
enforcement of the remaining provisions herein, and shall not in any way
impair or preclude enforcement of rights or remedies of Secured Party
under Chapter 355 of the Kentucky Revised Statutes, or other applicable
law.
16. This Security Agreement may, in the sole discretion of Secured
Party, be filed as a financing statement and Debtor agrees to also
execute any additional financing statements with respect hereto which
may be requested by Secured Party. Secured Party may, in its sole
discretion, attach this Security Agreement or any other document
executed pursuant hereto or in connection herewith with any person or
organization which registers, sells or is in any manner involved with
any or all of the Collateral. Secured Party shall be entitled to notify
the person in possession of the Collateral, or any other person Secured
Party deems appropriate of the security interest herein granted and to
notify such person or entity to forward all documents with respect to
the Collateral to Secured Party and otherwise as Secured Party deems
appropriate.
IN TESTIMONY WHEREOF, witness the signature of the parties hereto,
to be effective the day, month and year first above written.
COMMONWEALTH PREMIUM FINANCE
CORPORATION, a Kentucky corporation
By: /s/ ▇. ▇. ▇▇▇▇▇
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Title: President
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BANK ONE, LEXINGTON, NA
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Vice President
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EXHIBIT A TO FINANCING STATEMENT AND/OR SECURITY AGREEMENT
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This Property covered by this Financing Statement and/or Security
Agreement includes all of the Debtor's right, title and interest in, to
and under the following described property, whether now owned or
hereafter acquired by the Debtor, and whether now existing or hereafter
created, arising, accruing, incurred or entered into (all of which
hereinafter collectively called the "Collateral"):
1. All right, title, interest, security interests, accounts, contract
rights, and general intangibles of Debtor, its successors and assigns,
whether now existing or hereinafter arising, under or in connection with
any and all insurance premium financing contracts and agreements entered
into between Debtor, its successors and assigns, and any and all other
parties, including but not limited to the rights of Debtor to unearned
insurance premiums under such insurance premium financing contracts and
the rights in favor of Debtor to cancel insurance contracts under such
insurance premium financing contracts.
2. All books, records, ledger cards, data processing records,
computer software and other property at any time evidencing or relating
to any of the foregoing; and
3. All "Proceeds", as such term is defined in the Uniform Commercial
Code of the State of Kentucky, and in any event shall include, but not
be limited to, (a) any and all proceeds of any insurance, indemnity,
warranty or guaranty payable to Secured Party or the Debtor, from time
to time, and claims for insurance, indemnity, warranty or guaranty
effected or held for the benefit of the Debtor, with respect to any of
the Collateral (as hereinafter defined), (b) any and all payments (in
any form whatsoever) made or due and payable to the Debtor, from time to
time in connection with any requisition, confiscation, condemnation,
seizure or forfeiture of all or any part of the Collateral by any
governmental authority (or any person acting under color of governmental
authority) and (c) any and all other amounts from time to time paid or
payable under or in connection with any of the Collateral (all of the
foregoing in this section 3, collectively, the "Proceeds"); and
4. Any and all additions and accessions to any of the foregoing, all
improvements thereto, all substitutions and replacements thereof and all
products and Proceeds thereof.
5. There is excepted from the Security Agreement, Financing Statement
and definition of Collateral, Insurance Premium Finance Contracts and
all rights thereunder, whether constituting accounts, general
intangibles, instruments or chattel paper sold to Premium Financing
Specialists, Inc., its successors and assigns, under a Purchase
Agreement dated May 3, 1996, and proceeds thereof.
The undersigned confirms that this Exhibit is
part of a financing statement and security
agreement signed by it:
COMMONWEALTH PREMIUM FINANCE CORPORATION
BY: /s/ ▇. ▇. ▇▇▇▇▇
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TITLE: President
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"DEBTOR"