This Application is required by Webb Concrete and Building Materials, Inc., for the purposes of evaluating credit applications and for establishing terms unpon which credit may be granted. Neither this Application nor any extension of credit hereunder creates any continuing obligation on the part of Webb Concrete and Building Materials, Inc., its owners, agents, or employees. The applicant understands that Webb Concrete and Building Materials, Inc., reserves the right to terminate any extension of credit at any time, with or without notice, for any reason, and to change the terms by which credit is extended at any time, with or without notice, for any reason.
The preceding information is for the purpose of obtaining credit and is warranted to be true. The undersigned applicant (“Applicant”) hereby authorizes Webb Concrete & Building Materials, Inc. (“Webb”) to investigate all references and customary credit information sources including consumer credit reporting repositories regarding Applicant’s credit and financial responsibility for the purpose of obtaining credit and periodic review for the purpose of maintaining the credit relationship.
WHERE MATERIALS ARE USED: Applicant agrees to provide Webb with the locations, stret addressess, and, when necessary, property descriptions of all properties where materials are delivered and used, as well as provide any other information about such properties (e.g., property owner, status of liens on such property) as Webb may request.
CREDIT POLICY: Statements are rendered monthly. C.O.D. restrictions may be placed on any past due account.
INVOICES: Applicant agrees that the terms, amounts of materials, and prices included or listed on any invoice issued by Webb to Applicant are presumed correct, and that Applicant assents to the terms, amounts of materials, and prices thereon, unless Applicant objects in writing to an invoice within five (5) business days of th issuance of an invoice.
CREDIT TERMS: All invoices are payable on 30 day terms. A service charge of one and one half percent (1 1/2%) per month or eighteen percent (18%) per annum or the highest legal rate, whichever is less, may be assessed on delinquent invoices. Applicant and Guarantors agree to pay all costs of collecting any amounts due, including, but not limited to, reasonable attorneys’ fees.
Applicant agrees to the terms, conditions, and agreements contained in the Rider to Webb Concrete & Building Materials Credit Application and Agreement attached hereto and incorporated herein by reference.
Applicant certifies that this request is for the extension of credit for business purposes only and not for the extension of credit for personal, family, or household purposes.
The undersigned individual(s) who is/are either the Applicant(s) individually, a principal, related party, or sole proprietor of the Applicant, recognizing that his or her credit history may be a factor in the evaluation of the credit history of the Applicant, hereby consents to and authorizes the use of a consumr credit report on the undersigned, from time to time as may be needed, in the credit evaluation process.
APPLICANT’S SIGNATURE ATTESTS FINANCIAL RESPONSIBILITY, ABILITY, AND WILLINGNESS TO PAY IN ACCORDANCE WITH THE ABOVE TERMS:
For valuable considration, the receipt of which is acknowledged, the undersigned (as individuals and jointly and severally, hereinafter referred to collectively as the “Guarantors”) hereby absolutely and unconditionally guarantee to Webb the prompt and complete performance by Applicant of each and all of Applicant’s obligations to Webb and the full and prompt payment by Applicant of all amounts, damages, costs and expenses(including attorneys’ fees) that Applicant may be obligated to pay to Webb (the ”Obligations“). Guarantor’s liability hereunder is direct, immediate, absolute, continuing, unconditional, and unlimited, and shall remain in full force and effect until the Obligations of Applicant under or pursuant to the Agreement or to any other Obligations owing from Applicant to Webb have been performed in full, irrespective of bankruptcy, insolvency, merger, reorganization, termination, discontinuation, or dissolution of Applicant or any assignment by Applicant. Webb shall not be required to proceed against Applicant or any security interest or lien it may have or to enforce any other remedy before proceeding against the Guarantors. Guarantors hereby waive any claim or any other right which the Guarantors might now have or hereafter acquire against Webb, its agents, and its assigns. This guaranty is of payment and performance and not of collection. This Personal Guaranty does not impose any obligation on Webb to extend or continue to extend credit or otherwise deal with Applicant at any subsequent time.
The undersigned personal Guarantors, rcognizing that his or her individual credit history may be a necessary factor in the evaluation of this personal guarantee, hereby consents to and authorizes the use of a consumer credit report on the undersigned, by the above named business credit grantor, from time to time as may ne needed, in the credit evaluation process.
AFFIRMATIVE COVENANTS. Applicant agrees that from the date of the execution of this Agreement and until final payment in full of the Obligations under this Agreement or any prior or subsequent agreements with Webb, unless Webb shall otherwise explicitly consent in writing, Applicant will: Business Continuity. Conduct its business in substantially the same manner and locations as such business is now and has previously been conducted. Payment of Debts. Pay and discharge when due, and before subject to penalty or further charge, and otherwise satisfy before maturity or delinquency, all Obligations, debts, taxes, and liabilities of whatever nature or amount, except those which Applicant in good faith disputes. Providing Information: Deliver promptly such other information regarding the operation, business affairs, and financial condition of Applicant which Webb may reasonably request at Webb’s sole and subjective discretion, including, without limitation, the address and legal description of any real property where any materials supplied by Webb to Applicant may be used, the owner of such real property, and the date when the materials supplied by Webb may have first been used at such real property.
CORPORATE OR OTHER POWER. Applicant warrants that it has the power and authority to execute and perform this Agreement, to borrow hereunder and to execute and deliver this Agreement. Applicant further warrants that its performance hereunder shall not constitute a breach of any agreement to which Applicant is a party.
DETERMINATION OF AMOUNTS DUE. Webb’s determination of the amounts due to it from Applicant shall at all times be indisputable and deemed correct.
NO THIRD PARTY BENEFICIARY; NO WARRANTY BY WEBB; INDEMNIFICATION. No Third Party Beneficiary. The parties hereto do not intend the benefits of this Agreement to inure any third party. Notwithstanding anything contained in this Agreement or any other agreement of representation or any course of conduct by any of the parties hereto, this Agreement shall not be construed as creating any rights, claims, or causes of action against Wbb, or any of its officers, agents, or employees, in favor of any owner or possessor of any property at which the materials provided in contemplation of this agreement may be used, contractor, subcontractor, supplier of labor, othr materials or services, or any of their respective creditors, or any other person or entity other than Applicant. No Warranty by Webb; Indemnification. Nothing contained in this Agreement or any other accompanying documentation or representation by Webb to Application shall constitute or create any duty on or warranty by Webb regarding (i) the proper application of the proceeds or materials provided in contemplation of this Agreement by Applicant or any general contractor or any subcontractor, (ii) the quality or condition of any project wherein the materials provided in contemplation of this Agreement are provided, or (iii) the competence or qualifications of the general contractor or any other party furnishing labor or other materials in connection with construction of the project. Applicant (a) acknowledges that Applicant has not relied and will not rely upon any experience, awareness, or expertise of Webb regarding such matters, and (b) shall indemnify, hold harmless, and defend Webb from any costs, expenses, damages, judgments, or liabilities, including without limitation, attorneys&rquo; fees, arbitration fees, and expert witness fees, arising from or connected with (i) such matters, (ii) payment or non-payment for labor or materials furnished for construction of any project, (iii) any claims of mechanics or materialmen, or (iv) any action or inaction by Applicant with respect to the foregoing. Moreover, Applicant will indemnify Webb and its affiliates from and against any losses, liabilities, claims, damages, penalties, or fines imposed upon, asserted, or assessed against, or incurred by Webb arising out of the inaccuracy or breach of any of the representations contained in this Agreement or any other agreement between Webb and Applicant.
FEES, APPLICABLE LAW, JURISDICTION. Fees. Applicant shall pay all of Webb’s reasonable expenses actually incurred to enforce or collect any of the obligations associated with this Agreement including, without limitation, reasonable arbitration, paralegals’, attorneys’, and experts’ fees and expenses, whether incurred without the commencement of a suit, in any trial, arbitration, or administrative proceeding, or any appellate or bankruptcy proceeding (together with all other principal, interest, fees, costs, and other expenses Applicant owes to Webb, collectively, the “Obligations”). Applicable Law. This Agreement shall be governed by and construed under the laws of the State of Alabama. Jurisdiction. Applicant irrevocably agrees to non-exclusive personal jurisdiction in the State of Alabama.
OTHER PROVISIONS. Final Agreement. This Agreement (and the terms of any and all invoices issued to Applicant) represents the final agreement between the parties and may not be contradicted by evidence of prior, contemporaneous, or subsequent oral agreements of the parties. There are no unwritten oral agreements between the parties. Time is of the Essence. In all matters pertaining to this Agreement, time is of the essence. Notice of Guarantor’s Incapacity. Applicant convenants to inform Webb within ten (10) days’ time upon learning of the death or incapacity (legal or physical) of any Guarantor.
LIMITATION ON LIABILITY; WAIVER OF PUNITIVE DAMAGES. EACH OF THE PARTIES HERETO, INCLUDING WEBB BY ACCEPTANCE HEREOF, AGREES THAT IN ANY JUDICIAL, MEDIATION, OR ARBITRATION PROCEEDING OR ANY CLAIM OR CONTROVERSY BETWEEN OR AMONG THEM THAT MAY ARISE OUT OF OR BE IN ANY WAY CONNECTED WITH THIS AGREEMENT, ANY OTHER AGREEMENT OR DOCUMENT BETWEEN OR AMONG THEM OR THE OBLIGATIONS EVIDENCED HEREBY OR RELATED HERETO, IN NO EVENT SHALL ANY PARTY HAVE A REMEDY OF, OR BE LIABLE TO THE OTHER FOR, (1) INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES OR (2) PUNITIVE OR EXEMPLARY DAMAGES THEY MAY HAVE OR WHICH MAY ARISE IN THE FUTURE IN CONNECTION WITH ANY SUCH PROCEEDING, CLAIM, OR CONTROVERSY, WHETHER THE SAME IS RESOLVED BY ARBITRATION, MEDIATION, JUDICIALLY, OR OTHERWISE.
WAIVER OF JURY TRIAL. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH APPLICANT BY EXECUTION HEREOF AND WEBB BY ACCEPTANCE HEREOF, KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVES ANY RIGHT EACH MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED ON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH THIS AGREEMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY WITH RESPECT HERETO. THIS PROVISION IS A MATRIAL INDUCEMENT TO WEBB TO APPROVE THIS APPLICATION. EACH OF THE PARTIES AGREES THAT THE TERMS HEREOF SHALL SUPERSEDE AND REPLACE ANY PRIOR AGREEMENT RELATED TO ARBITRATION OF DISPUTES BETWEEN THE PARTIES CONTAINED IN ANY LOAN DOCUMENT OR ANY OTHER DOCUMENT OR AGREEMENT HERETOFORE EXECUTED IN CONNECTION WITH, RELATED TO, OR BEING REPLACED, SUPPLEMENTED, EXTENDED, OR MODIFIED BY, THIS AGREEMENT.
Questions? 800.600.2195 | Main Business Office fax 256.463.2180 | Pell City Office fax 205.338.0989