Exhibit 99(b)(5)
[LOGO OMITTED]
Guaranty Bank ----------------------------------
and Trust Company OWNER OF COLLATERAL
Seventeenth & Market Street BUMGARNER ENTERPRISES INC
P.O. Box 5847 COMMERCIAL
Denver, Colorado 80217 SECURITY
(303) 296-9600 AGREEMENT
"LENDER"
ADDRESS
3400 82ND WAY NORTH
ST PETERSBURG, FL 33710
TELEPHONE NO. IDENTIFICATION NO.
----------------------------------
------------------------------------ -------------------------------------
BORROWER LOCATION OF COLLATERAL
BUMGARNER ENTERPRISES INC
GUARANTY BANK AND TRUST COMPANY
SEVENTEENTH & MARKET STREET
DENVER CO 80217
ADDRESS
3400 82ND WAY NORTH
ST PETERSBURG, FL 33710
TELEPHONE NO. IDENTIFICATION NO.
------------------------------------ -------------------------------------
1. SECURITY INTEREST. 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, 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
- --------------------------------------------------------------------------------
6.400% $8,500,000.00 01/29/01 01/29/03 4600240001
- --------------------------------------------------------------------------------
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:
| | All accounts and contract rights including, but not limited to, the
accounts and contract rights described on Schedule A attached hereto
and incorporated herein by this reference;
| | All chattel paper including, but not limited to, the chattel paper
described on Schedule A attached hereto and incorporated herein by this
reference;
| | All documents including, but not limited to, the documents described on
Schedule A attached hereto and incorporated herein by this reference;
| | All equipment, including, but not limited to, the equipment described
on Schedule A attached hereto and incorporated herein by this
reference;
| | All fixtures, including, but not limited to, the fixtures located or to
be located on the real property described on Schedule B attached hereto
and incorporated herein by this reference;
| | All general intangibles including, but not limited to, the general
intangibles described on Schedule A attached hereto and incorporated
herein by this reference;
| | All instruments including, but not limited to, the instruments
described on Schedule A attached hereto and incorporated herein by this
reference;
| | All inventory including, but not limited to, the 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;
|X| Other: ASSIGNMENT OF MMDA #21221494 WITH GUARANTY BANK AND TRUST
COMPANY
All monies, instruments, and savings, checking or other deposit accounts that
are now or in the future in Lender's custody or control (excluding IRA, Keogh,
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: 59-3676898 .
------------
5. RESIDENCY/LEGAL STATUS. Owner Is an individual(s) and a resident of the
state of:
-------------------
|X| Owner is a Corporation duly organized, validly existing and in good
-------------------
standing under the laws of the state of Florida .
-------------
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 across the property. 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 shaII defend the Collateral against all claims and demands
of all persons at any time claiming an 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 mark 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, notify, 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 "lndebtedness") 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 . Insurance
coverage obtained by Owner shall be from a licensed insurer subject to Lender's
approval. Owner shall assign to Lender all rights to receive proceeds of
insurance not exceeding the amount owed under the obligations described above,
and direct the insurer to pay all proceeds directly to Lender. 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
or any draft on 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, liabilites (including
attorneys' fees and legal expenses), 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 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 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 in good faith 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;
(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, Lender will provide reasonable notification
of the time and place of any sale or intended disposition as
required under the Uniform Commercial Code. 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) 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 Operations, 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 pertaining to the negotiation, execution,
performance or enforcement of any term or condition contained in this Agreement
or any related document and agrees not to commence or seek to remove such legal
proceeding in or to a different court.
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 and collection costs.
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 as requested by
Lender from time to time. 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:
Owner acknowledges that Owner has read, understands, and agrees to the terms and
conditions of this Agreement.
Dated: JANUARY 29, 2001
LENDER: GUARANTY BANK AND TRUST
COMPANY
/s/ Jack L Moore
------------------------------------
JACK L MOORE
SENIOR VICE PRESIDENT
OWNER: BUMGARNER ENTERPRISES INC OWNER:
/s/ Charles G Masters
- ------------------------------------ ------------------------------------
CHARLES G MASTERS
PRESIDENT
OWNER: OWNER:
- ------------------------------------ ------------------------------------
OWNER: OWNER:
- ------------------------------------ ------------------------------------
OWNER: OWNER:
- ------------------------------------ ------------------------------------
OWNER: OWNER:
- ------------------------------------ ------------------------------------
SCHEDULE A
MMDA Account No. 21221494 in the amount of $9,000,000.00 on deposit with Lender
SCHEDULE B
SCHEDULE C
SCHEDULE D