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Filed
11 November 14 P5:34
Gary Fitzsimmons
District Clerk
Dallas District
CAUSE NO. DC-11-14033-D
FIRST AMERICAN COMMERCIAL § IN THE DISTRICT COURT
BANCORP, INC. AND BANK OF
THE WEST
Plaintiff,
Vv
95" JUDICIAL DISTRICT
WEIR BROS, INC., WEIR
TRANSPORTATION, INC., WEIR
INDUSTRIES, INC., and WEIR
EQUIPMENT, INC.
Defendants. DALLAS COUNTY, TEXAS
PLAINTIFF’S FIRST SUPPLEMENT TO ORIGINAL PETITION AND EX PARTE
VERIFIED APPLICATION FOR PRE-JUDGMENT WRIT OF SEQUESTRATION
TO THE HONORABLE JUDGE OF SAID COURT:
Plaintiffs First American Commercial Bancorp, Inc. (“First American”) and Bank of the
West (“BOTW”) supplements their original petition and application for pre-judgment writ of
sequestration with the following:
1 Attached at Exhibit “M2” is the first supplement to the affidavit of First American
Commercial Bancorp, Inc. - Mike Ziegelmann; and
2 Attached at Exhibit “N2” is the first supplement to the affidavit of Bank of the
West — James Roach.
Both exhibits M2 and N2 are to be incorporated herein by reference and made a part of Plaintiff's
Original Petition and Ex Parte Verified Application for Pre-judgment Writ of Sequestration.
Plaintiff's First Supplement to its Original Petition and Ex Parte Verified
Application for Pre-Judgment Writ of Sequestration Page | of 3
PRAYER
WHEREFORE, PREMISES CONSIDERED, Plaintiffs First American and BOTW
request that this Court grant:
a. a writ of sequestration in this cause to the proper officer, commanding the officer to
take into his/her possession Equipment 1, Equipment 2, and Equipment 3 and keep
Equipment 1, Equipment 2, and Equipment 3 subject to the further orders of this
court unless Equipment 1, Equipment 2, and Equipment 3 be replevied according to
the law and that a bond (including the filing ofa cash bond in lieu of a surety bond)
be set at a reasonable amount (no more than $5,000) under the circumstances:
First American and BOTW’s actual damages against Defendants;
First American and BOTW’s reasonable and necessary attorneys’ fees, costs and
expenses;
prejudgment interest at the maximum rate allowed by law;
post-judgment interest at the legal rate:
costs of court; and
all other and further relief, both general and special, legal and equitable, to which
First American and BOTW may be entitled.
Plaintiff's First Supplement to its Original Petition and Ex Parte Verified
Application for Pre-Judgment Writ of Sequestration Page 2 of3
Respectfully submitted,
BICKERSTAFF HEATH DELGADO ACOSTA, LLP
1700 Pacific Avenue, Suite 4501
Dallas, Texas 75201
(214) 397-0390 (Telephone)
(214) 397-0389 (Facsimile)
(wi) Pp j
By J
JOHN R. JONES
Texas Bar No. 10919500
.
ones@bickerstaff.com
JOHN CLARK LONG IV
Texas Bar No. 12520500
jlong@bickerstaff.com
CATHERINE THAN
Texas Bar No.24034704
ATTORNEYS FOR PLAINTIFF
Plaintiff's First Supplement to its Original Petition and Ex Parte Verified
Application for Pre-Judgment Writ of Sequestration Page 3 of3
CAUSE NO. DC-11-14033-D
FIRST AMERICAN COMMERCIAL IN THE DISTRICT COURT
BANCORP, INC. AND BANK OF
THE WEST
Plaintiff,
§
Vv §
95"" JUDICIAL DISTRICT
WEIR BROS, INC., WEIR
TRANSPORTATION, INC., WEIR
INDUSTRIES, INC., and WEIR
EQUIPMENT, INC.
Defendants. DALLAS COUNTY, TEXAS
FIRST SUPPLEMENT TO AFFIDAVIT OF
FIRST AMERICAN COMMERCIAL BANCORP, INC.
STATE OF NEW YORK §
S
3
COUNTY OF MONROE §
BEFORE ME, the undersigned authority, on this day personally appeared Mike
Ziegelmann, who swore on oath that the following facts are within his personal knowledge and
true and correct.
lam over 18 years of age and I have never been convicted of a crime and | am fully
competent to make this affidavit. I am employed by Plaintiff First American Commercial
Bancorp, Inc. (“First American”) as its Executive Vice President and as a result of my duties and
responsibilities, | have personal knowledge of and am authorized to execute this affidavit on
behalf of First American and I have authority to place past due accounts for recovery, which
includes the account in the name of Weir Bros., Inc.”
1 On November 3, 2011, First American filed its Original Petition and Verified
Application for Prejudgment Writ of Sequestration to sue Weir Bros., Inc. (the “Lessee”) for title
First Supplement to Affidavit of First American Commercial Bancorp, Inc Page | of5
EXHIBIT
"M2"
and possession of certain equipment under the Parties’ Master Lease Agreement 2010172 dated
August 23, 2010 (the “Master Lease”) with First American. The Master Lease contemplates that
the lessee and lessor will enter into one or more equipment schedules which describe certain
equipment to be leased, the applicable rental charges and end of term purchase option. Each
equipment schedule incorporates the terms and conditions of the Master Lease and forms a
separate and distinct lease transaction in which the lessee’s obligations to the lessor are absolute,
unconditional, non-cancellable and not subject to defense, reduction, abatement, set-off for any
reason.
2 Weir Bros., Inc. entered into two (2) equipment schedules under the Master Lease.
The first, Equipment Schedule No. 01 dated September 16, 2010 (“Schedule |”), contains the
following listing of equipment leased by Weir Bros., Inc. (the equipment listed below is
hereinafter collectively known as “Equipment 1"):
Quantity Description of Equipment Serial Number(s)
4 Spectra Focus 10 (3”) Robotic Total Station Systems 85120120
with 2.4 GHz Long Range Radios, Ranger 500x Data 85120152
Collectors with Survey Pro 4.8x, Power Kits, Chargers, 85120154
Prisim Poles, 360 Degree Prism/RMTs, and Accessory 85120173
Cases Systems including Full 2 Year Factory Warranty
SiteVision Dozer System including the following GPS 4327B24407
Receiver, GPS Antenna, Data Radio, Repeater Data 4414B33256
Radio, SiteVision GPS Machine Mounted System, JD 4334B26414
Dozer Value Package, SiteVision Office Software and
Installation a
3 Complete BladePro 3D System including the following: 1492
Job Site Digital Design Data, In-cab Display and 1559
Computer Unit, Hydraulic Control Package, Position 1722
nnn Subsystem, Software, and Installation —
3 The second equipment schedule, Equipment Schedule No. 02 dated December 2,
3”
2010 (“Schedule 2 » and together with Schedule 1, the “Schedules”), contains the following
First Supplement to Affidavit of First American Commercial Bancorp. Inc Page 2 of 5
listing of equipment leased by Weir Bros., Inc. (the equipment listed below is hereinafter
collectively known as “Equipment 2”):
-
Quantity Descript ion of Equ ipment
1 Duetz, 670 HP Engine, Four Cutting Dept Speeds, Operators Cabin with He
and Air, 24383MM Working Width and Depth up to SO0OMM, Hydraulic
Adjustable Scraper Blades, 2438MM Drum with HT11 Quick Change Holder
System, Slope Control, Knockout Tools, and Scraper with Blade with Breaker
Bar
— -
4 Weir Bros., Inc.’s actions and omissions have forced First American to seek
sequestration of the Equipment | and Equipment 2.
5 Equipment | and Equipment 2 are easily portable and mobile. First American
fears that there is immediate danger that Defendants will conceal, dispose of, ill-treat, waste or
destroy Equipment | and Equipment 2 or remove same out of the jurisdiction of the court during
the pendency of this suit. Equipment | and Equipment 2 are primarily excavation equipment.
Equipment | consi s of four units of land surveying equipment (Spectra Focus), three Site Vision
units that are used to guide the cold recycler through the dirt, and three BladePro 3D units of
portable equipment (inclusive of display/computer components and a robotic tracking sensor
station) that act as machine control systems to, among other things, enable operators of earth-
moving machines to guide and contro! the blades of such machines. All units within Equipment |
are small, portable, and mobile. Equipment 2 is a four wheeled cold recycler that is used as a soil
stabilizer and resembles a farm tractor in its appearance. The four wheels on the cold recycler
make this unit easily mobile. Photographs of Equipment | and Equipment 2 are attached at
Exhibit “M2-1” and incorporated herein by reference.
6. Furthermore, because Equipment 1 and Equipment 2 are used in the construction
industry, the units are typically used at various job sites and are constantly on the move.
First Supplement (o Affidavit of First American Commercial Ba rp. Inc Page 3 of 5
7
Additionally, Defendants’ actions have caused First American to believe that
Equipment | and Equipment 2 are in immediate danger. Specifically, Weir Bros, Inc. has failed
and refused to make regularly scheduled payments as required by Schedule | and Schedule 2. As
shown in the payment history attached at Exhibit “M2-2” and incorporated herein by reference,
Weir Bros, Inc.’s payments to First American have been returned 10 times in the past five
months. Four out of the ten payments were returned due to insufficient funds and the other six
payments were returned because Weir Bros. Inc.'s checking/opcrational bank account was closed.
Furthermore, Weir Bros., Inc. is also 104 days past due on Equipment | and Equipment 2’s
property taxes. Despite demand and opportunities to cure default, Weir Bros., Inc. still owes
lease payments for the months of September, October, and November 201 | and property taxes for
July 2011 through November 2011. Lee Weir, Mike Weir, and Cindy Weir, principles of Weir
Bros., Inc., have consistently ignored and not returned First American’s calls regarding its default
status and payment. Weir Bros., Inc. has also repeatedly refused to return Equipment | and
Equipment 2 to First American as required under the Master Lease First. American’s
repossession agents have not been able to locate Equipment | and Equipment 2 at Weir Bros.,
Inc.'s office and their repossession attempts have all been foiled by Weir Bros., Inc.
8 Equally important, since Weir Bros., Inc.'s defaults, First American has learned of
at least two other creditors who have tried to repossess their equipment from Weir Bros., Inc.
9 Based on the facts set out in this affidavit, and as First American’s representative, I
reasonably believe that the Defendants will conceal, or dispose of, or ill-treat, or waste, or
destroy, or remove all or part of Equipment | and Equipment 2 during the pendency of this action.
10. All documents attached to this affidavit, including but not limited to photographs
of Equipment | and Equipment 2 and Weir Bros., Inc.'s payment history under this account are
First Supplement to Affidavit of First American Commercial Bancorp, Inc Page 4 of5
true and correct copies of the original business records maintained by First American and it was
the regular course of business of First American for an employee or representative of First
American with knowledge of the act, event, condition, opinion or diagnosis to make the record or
to transmit information thereof to be included in such record; and the record was made at or near
the time or reasonably soon thereafter. The records attached hereto are the original or exact
duplicates of the original.
Further affiant sayeth not.”
za Z
oo
Name: Mike, Ziegelmann
Tide: Ex€cutive Vice President
Company: First American Commercial
Bancorp, Inc.
SIGNED under oath before me on this /f” day of November
‘ » 2011.
Xiu g a giaonO
Notary Public? State of New York
LAURA Y. INGRASSIO
NOTARY PUBLIC-STATE OF NEW Y° an
No. O11N6144429
Qualifled in Monroe County
My Commission Expires April 24, 2014
First Supplement to Affidavit of First American Commereial Bancorp, Inc Page 5 of 5
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Payment History of Weir Bros., Inc. from June 1, 2011 to November 9, 2011
Summary of scheduled items from June 1, 2011 to November 9, 2011
Due as of Nov 9, 2011
Item Due Date Sch 01 Sch 02 Total Amount Days Past Due
Rent 11/1/2011 4,544.74 s 4,472.07 s 9,016.81 $ 9,016.81 8
Rent 10/1/2011 4,544.74 $ 4,472.07 $ 9,016.81 $ 9,016.81 39
Rent 9/1/2011 4,544.74 $ 4,472.07 $s 9,016.81 $ 9,016.81 69
Rent 8/1/2011 4,544.74 $s 4,472.07 $ 9,016.81 $ -
Property Taxes 7/28/2011 5,697.71 $ 14,730.12 $s 20,427.83 $ 20,427.83 104
Rent 7/1/2011 4,544.74 $ 4,472.07 $ 9,016.81 $ -
Rent 6/1/2011 4,544.74 $ 4,472.07 $ 9,016.81 $
Cleared payments received from June 1, 2011 to November 9, 2011
Applied to
Date Item Due Date Sch 01 Sch 02 Total
10/3/2011 Rent 8/1/2011 $ 4,544.74 §$ 4,472.07 $ 9,016.81
9/16/2011 Rent 7/1/2011 $ 4,544.74 § 4,472.07 § 9,016.81
7/8/2011 Rent 6/1/2011 $ 4,771.98 $ 4,695.67 $ 9,467.65
Uncleared payments from June 1, 2011 to November 9, 2011
Date Sch 01 Sch 02 Total Description
11/3/2011 4,544.74 $s 4,472.07 $ 9,016.81 Returned ACH - Insufficient funds
9/30/2011 4,544.74 $ 4,472.07 $ 9,016.81 Returned ACH - Insufficient funds
9/14/2011 4,544.74 s 4,472.07 $ 9,016.81 Returned ACH - Insufficient funds
8/15/2011 4,544.74 $ 4,472.07 $s 9,016.81 Returned ACH - Account closed
8/3/2011 5,697.71 s 14,730.12 $ 20,427.83 Returned ACH - Account closed
8/3/2011 4,544.74 4,472.07 9,016.81 Returned ACH - Account closed
8/3/2011 4,544.74 4,472.07 9,016.81 Returned ACH - Account closed
6/17/2011 4,544.74 4,472.07 9,016.81 Returned ACH - Insufficient funds
6/14/2011 4,544.74 4,472.07 9,016.81 Returned ACH - Account closed
6/3/2011 4,544.74 4,472.07 9,016.81 Returned ACH - Account closed
EXHIBIT
I omaa"
CAUSE NO. DC-11-14033-D
_
FIRST AMERICAN COMMERCIAL § IN THE DISTRICT COURT
BANCORP, INC. AND BANK OF
THE WEST §
Plaintiff,
Vv.
95" JUDICIAL DISTRICT
WEIR BROS, INC., WEIR
TRANSPORTATION, INC., WEIR
INDUSTRIES, INC., and WEIR
EQUIPMENT, INC. §
Defendants. DALLAS COUNTY, TEXAS
FIRST SUPPLEMENT TO AFFIDAVIT OF BANK OF THE WEST
STATE OF CALIFORNIA §
§
COUNTY OF SAN FRANCISCO §
BEFORE ME, the undersigned authority, on this day personally appeared James Roach,
who swore on oath that the following facts are within his personal knowledge and true and
correct.
"lam over 18 years of age and I have never been convicted of a crime and I am fully
competent to make this affidavit. | am employed by Plaintiff Bank of the West (“BOTW”) as its
Assistant Vice President, Special Assets Officer and as a result of my duties and responsibilities, I
have personal knowledge of and am authorized to execute this affidavit on behalf of BOTW and I
have authority to place past due accounts for recovery, which includes the account in the name of
Weir Bros., Inc.”
1 On November 3, 2011, BOTW filed its Original Petition and Verified Application
for Prejudgment Writ of Sequestration to sue Weir Bros., Inc. (the “Lessee”) for title and
First Supplement to Affidavit of Bank of the West Page 1 of4
EXHIBIT
e N2"
st =
possession of certain equipment under the Parties’ Equipment Financing Agreement 856187-001
dated May 15, 2008 (the “EFA”) with BOTW.
2 Under the EFA, BOTW financed the following (the equipment listed below is
hereinafter collectively known as “Equipment 3”):
Quantity Description of Equipment Serial Number(s) |
1 New 2008 JC JS220LC Crawler JCBJS22CL71610077
Including the following options:
360 Crawler Excavator
Long undercarriage
Triple Grouser: 800MM
MonoBoom 0 HBCV S 3
Tipping Link
USA Homologation
Hammer/Auxiliary 3.0
3 Weir Bros., Inc.’s actions and omissions have forced BOTW to seek sequestration
of the Equipment 3.
4 Equipment 3 is easily portable and mobile. BOTW fears that there is immediate
t 3 or remove
danger that Defendants will conceal, dispose of, ill-treat, waste or destroy Equipmen
same out of the jurisdiction of the court during the pendency of this suit. Equipment 3 is a
crawler excavator. The continuous tracks on the crawler excavator make this unit easily mobile.
5 Furthermore, because Equipment 3 is used in the construction industry, the unit is
typically used at various job sites and is constantly on the move.
6 Additionally, Weir Bros., Inc.’s actions have caused BOTW to believe that
Equipment 3 is in immediate danger. Specifically, Weir Bros. Inc. has failed and refused to make
regularly scheduled payments as required by the EFA. As shown in the payment history attached
at Exhibit “N2-1” and incorporated herein by reference, Weir Bros, Inc. is past due on its
payments for the months of July, August, September, October, and November 2011. Weir Bros.,
First Supplement to Affidavit of Bank of the West Page 2 of4
~
r
Inc.’s last two payments to BOTW were both returned for insufficient funds. Despite demand and
opportunities to cure default, Weir Bros., Inc. still owes finance payments for the past 5 months.
7 Lee Weir and Weir Bros. Inc.’s management/principles have consistently ignored
and not returned BOTW’s calls regarding its default status and payment. Weir Bros., Inc, has
also repeatedly refused to return Equipment 3 to BOTW as required under the EFA. BOTW’s
repossession agents have not been able to locate Equipment 3 at Weir Bros., Inc.’s office and their
repossession attempts have all been foiled by Weir Bros., Inc. In addition, despite several
requests by BOTW to inspect Equipment 3 (which is an express right under the EFA), Weir Bros.,
Inc. has refused to comply nor has it provided the requested and required insurance binder on
Equipment 3.
8 Equally important, since Weir Bros., Inc.’s defaults under the EFA, BOTW has
learned of at least two other creditors who have tried to repossess their equipment from Weir
Bros., Inc. and one instance where Weir Bros., Inc. has used an auction company to sell
equipment.
9 Based on the facts set out in this affidavit, and as BOTW’s representative, I
reasonably believe that the Weir Bros., Inc. will conceal, or dispose of, or ill-treat, or waste, or
destroy, or remove all or part of Equipment 3 outside Dallas County during the pendency of this
action.
10. All documents attached to this affidavit, including but not limited to Weir Bros.,
Inc.’s payment history under this account are true and correct copies of the original business
records maintained by BOTW and it was the regular course of business of BOTW for an
employee or representative of BOTW with knowledge of the act, event, condition, opinion or
diagnosis to make the record or to transmit information thereof to be included in such record; and
First Supplement to Affidavit of Bank of the West Page 3 of4
—
the record was made at or near the time or reasonably soon thereafter. The records attached
hereto are the original or exact duplicates of the original
Die Rowe Z
Further affiant sayeth not.
James Roach
Title. Assistant Vice President, Special
Assets Officer
Company Bank of the West
SIGNED under oath before me on this “¥ day of __
AVaveewbaz-, 2011
Notary Public, State of California
First Supplement to Affidavit of Bank of the West Page 4 of 4
a
CMAINT.11 Lease Contract Maintenance 11/08/2011
Payment History Inquiry
Contract 300-0856187-001 WEIR BROS Inc
-
Trans Type Check/Memo Date Due Date Revd Amount Revd Tot Rental
0001) 3416107 Retn 10527 06/15/11 09/22/11 ~3,277 12 ~3,269. 12
0002) 3411627 Over 10527 06/15/11 09/22/11 3,277 12 3,269. 12
06/15/11
ae
0003) 2216854 Retn 10355 07/29/11 -6,554 24 -6,554.
0004) 2211981 Stand 1035S 06/15/11 07/29/ 1 1 6,554 24 6,554
0005) 2176178 Over 11284 03/15/11 05/25/11 10,486 78 9,831 36
0006) 2136076 Over 56795 03/15/11 655 42
0007) 2136031 Over 56795 01/15/11 03/15/11 5,898 82 5,898 82
0008) 2136030 Over 56796 03/15/11 917 59
0005) 2092268 Stand 55436 12/15/10 12/27/10 3,932 54 3,932 $4
0010) 2092267 Stand 55430 11/15/10 12/27/10 3,277 12 3,277 12
0011) 2058144 Over 54156 04/15/10 10/22/10 12,475 04 9,831 36
0012) 1998073 Over 51452 06/15/10 06/29/10 6,554 24 6,554 24
0013) 1997761 Over 51571 05/15/10 06/29/10 3,285 12 3,277 12
0014) 1981496 Over $0919 03/15/10 05/28/10 6,562 24 6,554 24
0015) 1970182 Stand $0405 02/15/10 05/11/10 3,277 12 3,277 12
0016) 1953566 Retn 49834 02/15/10 03/26/10 -6,554 24 -6,554. 24
Selection More.
EXHIBIT
i “tya-\"
—— _
CMAINT.11 Lease Contract Maintenance 11/08/2011
Payment History Inquiry
Contract. 300-0856187-001 WEIR BROS INC
Trans Type Check/Memo Date Due Date Revd Amount Revd Tot Rental
0017) 946206 Over 49834 02/15/10 03/26/10 6,554 24 6,554 24
0018) 1931897 Over 49331 01/15/10 02/26/10 3,277 12 3,277 12
0019) 1866158 Stand 47116 11/15/09 10/27/09 7,209 66 6,554 24
0020) 1859979 Stand 46714 09/15/09 10/14/09 6,554 24 6,554 24
0021) 1830812 Over 45993 07/15/09 08/24/09 9,077 62 6,554 24
0022) 1799919 Stand 44882 06/15/09 06/30/09 3,277 12 3,277 12
0023) 1779135 Over 44370 04/15/09 05/28/09 6,554 24 6,554 24
0024) 1745505 Over 43122 03/15/09 03/30/09 3,277 12 3,277 12
0025) 1731826 Over 42903 02/15/09 03/10/09 3,277 12 3,277 12
0026) 1718293 Over 42481 01/15/09 02/17/09 3,277 12 2,949 42
0027) 1695851 Over 41767 12/15/08 01/12/09 3,277 12 3,277 12
0028) 1678742 Stand 41487 11/15/08 12/11/08 3,277 12 3,277 12
0029) 1659785 Over 40945 10/15/08 11/10/08 4,587 95 3,604 82
0030) 1644953 Over 40258 09/15/08 10/14/08 3,277 12 3,277 12
0031) 1634618 Over 40008 08/15/08 09/26/08 3,932 54 3,277 12
0032) 1605435 Stand 38954 06/15/08 08/08/08 6,554 24 6,554 24
Selection More...
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Filed 11 November 14 P5:34 Gary Fitzsimmons District Clerk Dallas District CAUSE NO. DC-11-14033-D FIRST AMERICAN COMMERCIAL § IN THE DISTRICT COURT BANCORP, INC. AND BANK OF THE WEST Plaintiff, Vv 95" JUDICIAL DISTRICT WEIR BROS, INC., WEIR TRANSPORTATION, INC., WEIR INDUSTRIES, INC., and WEIR EQUIPMENT, INC. Defendants. DALLAS COUNTY, TEXAS PLAINTIFF’S FIRST SUPPLEMENT TO ORIGINAL PETITION AND EX PARTE VERIFIED APPLICATION FOR PRE-JUDGMENT WRIT OF SEQUESTRATION TO THE HONORABLE JUDGE OF SAID COURT: Plaintiffs First American Commercial Bancorp, Inc. (“First American”) and Bank of the West (“BOTW”) supplements their original petition and application for pre-judgment writ of sequestration with the following: 1 Attached at Exhibit “M2” is the first supplement to the affidavit of First American Commercial Bancorp, Inc. - Mike Ziegelmann; and 2 Attached at Exhibit “N2” is the first supplement to the affidavit of Bank of the West — James Roach. Both exhibits M2 and N2 are to be incorporated herein by reference and made a part of Plaintiff's Original Petition and Ex Parte Verified Application for Pre-judgment Writ of Sequestration. Plaintiff's First Supplement to its Original Petition and Ex Parte Verified Application for Pre-Judgment Writ of Sequestration Page | of 3 PRAYER WHEREFORE, PREMISES CONSIDERED, Plaintiffs First American and BOTW request that this Court grant: a. a writ of sequestration in this cause to the proper officer, commanding the officer to take into his/her possession Equipment 1, Equipment 2, and Equipment 3 and keep Equipment 1, Equipment 2, and Equipment 3 subject to the further orders of this court unless Equipment 1, Equipment 2, and Equipment 3 be replevied according to the law and that a bond (including the filing ofa cash bond in lieu of a surety bond) be set at a reasonable amount (no more than $5,000) under the circumstances: First American and BOTW’s actual damages against Defendants; First American and BOTW’s reasonable and necessary attorneys’ fees, costs and expenses; prejudgment interest at the maximum rate allowed by law; post-judgment interest at the legal rate: costs of court; and all other and further relief, both general and special, legal and equitable, to which First American and BOTW may be entitled. Plaintiff's First Supplement to its Original Petition and Ex Parte Verified Application for Pre-Judgment Writ of Sequestration Page 2 of3 Respectfully submitted, BICKERSTAFF HEATH DELGADO ACOSTA, LLP 1700 Pacific Avenue, Suite 4501 Dallas, Texas 75201 (214) 397-0390 (Telephone) (214) 397-0389 (Facsimile) (wi) Pp j By J JOHN R. JONES Texas Bar No. 10919500 . ones@bickerstaff.com JOHN CLARK LONG IV Texas Bar No. 12520500 jlong@bickerstaff.com CATHERINE THAN Texas Bar No.24034704 ATTORNEYS FOR PLAINTIFF Plaintiff's First Supplement to its Original Petition and Ex Parte Verified Application for Pre-Judgment Writ of Sequestration Page 3 of3 CAUSE NO. DC-11-14033-D FIRST AMERICAN COMMERCIAL IN THE DISTRICT COURT BANCORP, INC. AND BANK OF THE WEST Plaintiff, § Vv § 95"" JUDICIAL DISTRICT WEIR BROS, INC., WEIR TRANSPORTATION, INC., WEIR INDUSTRIES, INC., and WEIR EQUIPMENT, INC. Defendants. DALLAS COUNTY, TEXAS FIRST SUPPLEMENT TO AFFIDAVIT OF FIRST AMERICAN COMMERCIAL BANCORP, INC. STATE OF NEW YORK § S 3 COUNTY OF MONROE § BEFORE ME, the undersigned authority, on this day personally appeared Mike Ziegelmann, who swore on oath that the following facts are within his personal knowledge and true and correct. lam over 18 years of age and I have never been convicted of a crime and | am fully competent to make this affidavit. I am employed by Plaintiff First American Commercial Bancorp, Inc. (“First American”) as its Executive Vice President and as a result of my duties and responsibilities, | have personal knowledge of and am authorized to execute this affidavit on behalf of First American and I have authority to place past due accounts for recovery, which includes the account in the name of Weir Bros., Inc.” 1 On November 3, 2011, First American filed its Original Petition and Verified Application for Prejudgment Writ of Sequestration to sue Weir Bros., Inc. (the “Lessee”) for title First Supplement to Affidavit of First American Commercial Bancorp, Inc Page | of5 EXHIBIT "M2" and possession of certain equipment under the Parties’ Master Lease Agreement 2010172 dated August 23, 2010 (the “Master Lease”) with First American. The Master Lease contemplates that the lessee and lessor will enter into one or more equipment schedules which describe certain equipment to be leased, the applicable rental charges and end of term purchase option. Each equipment schedule incorporates the terms and conditions of the Master Lease and forms a separate and distinct lease transaction in which the lessee’s obligations to the lessor are absolute, unconditional, non-cancellable and not subject to defense, reduction, abatement, set-off for any reason. 2 Weir Bros., Inc. entered into two (2) equipment schedules under the Master Lease. The first, Equipment Schedule No. 01 dated September 16, 2010 (“Schedule |”), contains the following listing of equipment leased by Weir Bros., Inc. (the equipment listed below is hereinafter collectively known as “Equipment 1"): Quantity Description of Equipment Serial Number(s) 4 Spectra Focus 10 (3”) Robotic Total Station Systems 85120120 with 2.4 GHz Long Range Radios, Ranger 500x Data 85120152 Collectors with Survey Pro 4.8x, Power Kits, Chargers, 85120154 Prisim Poles, 360 Degree Prism/RMTs, and Accessory 85120173 Cases Systems including Full 2 Year Factory Warranty SiteVision Dozer System including the following GPS 4327B24407 Receiver, GPS Antenna, Data Radio, Repeater Data 4414B33256 Radio, SiteVision GPS Machine Mounted System, JD 4334B26414 Dozer Value Package, SiteVision Office Software and Installation a 3 Complete BladePro 3D System including the following: 1492 Job Site Digital Design Data, In-cab Display and 1559 Computer Unit, Hydraulic Control Package, Position 1722 nnn Subsystem, Software, and Installation — 3 The second equipment schedule, Equipment Schedule No. 02 dated December 2, 3” 2010 (“Schedule 2 » and together with Schedule 1, the “Schedules”), contains the following First Supplement to Affidavit of First American Commercial Bancorp. Inc Page 2 of 5 listing of equipment leased by Weir Bros., Inc. (the equipment listed below is hereinafter collectively known as “Equipment 2”): - Quantity Descript ion of Equ ipment 1 Duetz, 670 HP Engine, Four Cutting Dept Speeds, Operators Cabin with He and Air, 24383MM Working Width and Depth up to SO0OMM, Hydraulic Adjustable Scraper Blades, 2438MM Drum with HT11 Quick Change Holder System, Slope Control, Knockout Tools, and Scraper with Blade with Breaker Bar — - 4 Weir Bros., Inc.’s actions and omissions have forced First American to seek sequestration of the Equipment | and Equipment 2. 5 Equipment | and Equipment 2 are easily portable and mobile. First American fears that there is immediate danger that Defendants will conceal, dispose of, ill-treat, waste or destroy Equipment | and Equipment 2 or remove same out of the jurisdiction of the court during the pendency of this suit. Equipment | and Equipment 2 are primarily excavation equipment. Equipment | consi s of four units of land surveying equipment (Spectra Focus), three Site Vision units that are used to guide the cold recycler through the dirt, and three BladePro 3D units of portable equipment (inclusive of display/computer components and a robotic tracking sensor station) that act as machine control systems to, among other things, enable operators of earth- moving machines to guide and contro! the blades of such machines. All units within Equipment | are small, portable, and mobile. Equipment 2 is a four wheeled cold recycler that is used as a soil stabilizer and resembles a farm tractor in its appearance. The four wheels on the cold recycler make this unit easily mobile. Photographs of Equipment | and Equipment 2 are attached at Exhibit “M2-1” and incorporated herein by reference. 6. Furthermore, because Equipment 1 and Equipment 2 are used in the construction industry, the units are typically used at various job sites and are constantly on the move. First Supplement (o Affidavit of First American Commercial Ba rp. Inc Page 3 of 5 7 Additionally, Defendants’ actions have caused First American to believe that Equipment | and Equipment 2 are in immediate danger. Specifically, Weir Bros, Inc. has failed and refused to make regularly scheduled payments as required by Schedule | and Schedule 2. As shown in the payment history attached at Exhibit “M2-2” and incorporated herein by reference, Weir Bros, Inc.’s payments to First American have been returned 10 times in the past five months. Four out of the ten payments were returned due to insufficient funds and the other six payments were returned because Weir Bros. Inc.'s checking/opcrational bank account was closed. Furthermore, Weir Bros., Inc. is also 104 days past due on Equipment | and Equipment 2’s property taxes. Despite demand and opportunities to cure default, Weir Bros., Inc. still owes lease payments for the months of September, October, and November 201 | and property taxes for July 2011 through November 2011. Lee Weir, Mike Weir, and Cindy Weir, principles of Weir Bros., Inc., have consistently ignored and not returned First American’s calls regarding its default status and payment. Weir Bros., Inc. has also repeatedly refused to return Equipment | and Equipment 2 to First American as required under the Master Lease First. American’s repossession agents have not been able to locate Equipment | and Equipment 2 at Weir Bros., Inc.'s office and their repossession attempts have all been foiled by Weir Bros., Inc. 8 Equally important, since Weir Bros., Inc.'s defaults, First American has learned of at least two other creditors who have tried to repossess their equipment from Weir Bros., Inc. 9 Based on the facts set out in this affidavit, and as First American’s representative, I reasonably believe that the Defendants will conceal, or dispose of, or ill-treat, or waste, or destroy, or remove all or part of Equipment | and Equipment 2 during the pendency of this action. 10. All documents attached to this affidavit, including but not limited to photographs of Equipment | and Equipment 2 and Weir Bros., Inc.'s payment history under this account are First Supplement to Affidavit of First American Commercial Bancorp, Inc Page 4 of5 true and correct copies of the original business records maintained by First American and it was the regular course of business of First American for an employee or representative of First American with knowledge of the act, event, condition, opinion or diagnosis to make the record or to transmit information thereof to be included in such record; and the record was made at or near the time or reasonably soon thereafter. The records attached hereto are the original or exact duplicates of the original. Further affiant sayeth not.” za Z oo Name: Mike, Ziegelmann Tide: Ex€cutive Vice President Company: First American Commercial Bancorp, Inc. SIGNED under oath before me on this /f” day of November ‘ » 2011. Xiu g a giaonO Notary Public? State of New York LAURA Y. INGRASSIO NOTARY PUBLIC-STATE OF NEW Y° an No. O11N6144429 Qualifled in Monroe County My Commission Expires April 24, 2014 First Supplement to Affidavit of First American Commereial Bancorp, Inc Page 5 of 5 Photo Page Page | of8 QUIKPRO Job No: 1385090 Weir Bros., Inc Photos a i oc on a eens. i a ee ce Wien SPECIAO es BN = 8211, a EXHIBIT » yn M2. https://secure.quiktrak.com/ext2/Shared/PhotoPage.aspx 5/3/2011 Photo Page Page 2 of 8 QUIKPRO Job No: 1385090 Weir Bros., Inc Photos if rt | | fi : a sae De TE =e — 5 bai pote ase Box a $E-18214 Danderyd Swese 5, Ns, 2267003 ti Sermo: 85120173 te7 yy vn rns a at ‘oh https://secure.quiktrak.com/ext2/Shared/PhotoPage.aspx 5/3/2011 Photo Page Page 3 of8 QUIKPRO Job No: 1385090 Weir Bros., inc Photos Uf, ag N } W x a hoo36 Py = ea i ie i ry Tt i 4i ih pti | |e te a) 4° = aa ah https://secure.quiktrak.com/ext2/Shared/PhotoPage.aspx 5/3/2011 Photo Page Page 4 of 8 QUIKPRO Job No: 1385090 Weir Bros., Inc Photos i od eh ee _ us Pr) ie H) Naan a v a2 nae 9 ~ 010529 ria https://secure.quiktrak.com/ext2/Shared/PhotoPage.aspx 5/3/2011 Photo Page Page 5 of 8 QUIKPRO Job No: 1385090 Weir Bros., Inc Photos RY PROPERTY OF FIRST EQUIPMENT FINANCE “WT RICAN wees (800) 236-7474 www.laef.com 09 — 0105 ah Buty, J Lert od a St | 1 \ CY https://secure.quiktrak.com/ext2/Shared/PhotoPage.aspx 5/3/2011 Photo Page Page 6 of 8 QUIKPRO Job No: 1385090 Weir Bros., Inc Photos PERTY OF FIRST AME mCAN FQUIPREERNT FrNANCE Ni (000) 236-7478 Minas) i a a = B lt Ganderyd Swauwk cus Part no: 572257003 iN324 Ser.no: 85120164 Will i € & | “1 https://secure.quiktrak.com/ext2/Shared/PhotoPage.aspx 5/3/2011 Photo Page Page 7 of8 QUIKPRO : ob No: 1385090 Weir Bros., Inc Photos qi “2. pus. oe no Stevego ta i a B oh aoe ht ES aa ae Tk ~— &) Ar ok | https://secure quiktrak.com/ext2/Shared/PhotoPage.aspx 5/3/2011 Photo Page Page | of2 ____ QUIKPRO a oe — Job No: oe 1382413 “Weir Bros . Ine Photos 5 TS aie ak one et —S 1; Ss feel LY fe Soe baht Sey. A Hy ¥ ai — a Bei Sim \3 ‘ ig 3 _ os © Ge (€ Reinhard-Wirtyen-Strafe 2 3 phagen Gersnan q e 09~ 04 rego} Lise 5 | “a https://secure.quiktrak.com/ext2/Shared/PhotoPage.aspx 4/28/2011 Photo Page Page 2 of 2 QUIKPRO Job No: 1382413 Weir Bros.. Inc Photos etn Ut © # Reinhard-Wirtgen-Strate 2. 53578 Windhagen: Germany| NG abs ler OAV O40 aa Ptct) ae pz Oy s https://secure.quiktrak.com/ext2/Shared/PhotoPage.aspx 4/28/2011 Payment History of Weir Bros., Inc. from June 1, 2011 to November 9, 2011 Summary of scheduled items from June 1, 2011 to November 9, 2011 Due as of Nov 9, 2011 Item Due Date Sch 01 Sch 02 Total Amount Days Past Due Rent 11/1/2011 4,544.74 s 4,472.07 s 9,016.81 $ 9,016.81 8 Rent 10/1/2011 4,544.74 $ 4,472.07 $ 9,016.81 $ 9,016.81 39 Rent 9/1/2011 4,544.74 $ 4,472.07 $s 9,016.81 $ 9,016.81 69 Rent 8/1/2011 4,544.74 $s 4,472.07 $ 9,016.81 $ - Property Taxes 7/28/2011 5,697.71 $ 14,730.12 $s 20,427.83 $ 20,427.83 104 Rent 7/1/2011 4,544.74 $ 4,472.07 $ 9,016.81 $ - Rent 6/1/2011 4,544.74 $ 4,472.07 $ 9,016.81 $ Cleared payments received from June 1, 2011 to November 9, 2011 Applied to Date Item Due Date Sch 01 Sch 02 Total 10/3/2011 Rent 8/1/2011 $ 4,544.74 §$ 4,472.07 $ 9,016.81 9/16/2011 Rent 7/1/2011 $ 4,544.74 § 4,472.07 § 9,016.81 7/8/2011 Rent 6/1/2011 $ 4,771.98 $ 4,695.67 $ 9,467.65 Uncleared payments from June 1, 2011 to November 9, 2011 Date Sch 01 Sch 02 Total Description 11/3/2011 4,544.74 $s 4,472.07 $ 9,016.81 Returned ACH - Insufficient funds 9/30/2011 4,544.74 $ 4,472.07 $ 9,016.81 Returned ACH - Insufficient funds 9/14/2011 4,544.74 s 4,472.07 $ 9,016.81 Returned ACH - Insufficient funds 8/15/2011 4,544.74 $ 4,472.07 $s 9,016.81 Returned ACH - Account closed 8/3/2011 5,697.71 s 14,730.12 $ 20,427.83 Returned ACH - Account closed 8/3/2011 4,544.74 4,472.07 9,016.81 Returned ACH - Account closed 8/3/2011 4,544.74 4,472.07 9,016.81 Returned ACH - Account closed 6/17/2011 4,544.74 4,472.07 9,016.81 Returned ACH - Insufficient funds 6/14/2011 4,544.74 4,472.07 9,016.81 Returned ACH - Account closed 6/3/2011 4,544.74 4,472.07 9,016.81 Returned ACH - Account closed EXHIBIT I omaa" CAUSE NO. DC-11-14033-D _ FIRST AMERICAN COMMERCIAL § IN THE DISTRICT COURT BANCORP, INC. AND BANK OF THE WEST § Plaintiff, Vv. 95" JUDICIAL DISTRICT WEIR BROS, INC., WEIR TRANSPORTATION, INC., WEIR INDUSTRIES, INC., and WEIR EQUIPMENT, INC. § Defendants. DALLAS COUNTY, TEXAS FIRST SUPPLEMENT TO AFFIDAVIT OF BANK OF THE WEST STATE OF CALIFORNIA § § COUNTY OF SAN FRANCISCO § BEFORE ME, the undersigned authority, on this day personally appeared James Roach, who swore on oath that the following facts are within his personal knowledge and true and correct. "lam over 18 years of age and I have never been convicted of a crime and I am fully competent to make this affidavit. | am employed by Plaintiff Bank of the West (“BOTW”) as its Assistant Vice President, Special Assets Officer and as a result of my duties and responsibilities, I have personal knowledge of and am authorized to execute this affidavit on behalf of BOTW and I have authority to place past due accounts for recovery, which includes the account in the name of Weir Bros., Inc.” 1 On November 3, 2011, BOTW filed its Original Petition and Verified Application for Prejudgment Writ of Sequestration to sue Weir Bros., Inc. (the “Lessee”) for title and First Supplement to Affidavit of Bank of the West Page 1 of4 EXHIBIT e N2" st = possession of certain equipment under the Parties’ Equipment Financing Agreement 856187-001 dated May 15, 2008 (the “EFA”) with BOTW. 2 Under the EFA, BOTW financed the following (the equipment listed below is hereinafter collectively known as “Equipment 3”): Quantity Description of Equipment Serial Number(s) | 1 New 2008 JC JS220LC Crawler JCBJS22CL71610077 Including the following options: 360 Crawler Excavator Long undercarriage Triple Grouser: 800MM MonoBoom 0 HBCV S 3 Tipping Link USA Homologation Hammer/Auxiliary 3.0 3 Weir Bros., Inc.’s actions and omissions have forced BOTW to seek sequestration of the Equipment 3. 4 Equipment 3 is easily portable and mobile. BOTW fears that there is immediate t 3 or remove danger that Defendants will conceal, dispose of, ill-treat, waste or destroy Equipmen same out of the jurisdiction of the court during the pendency of this suit. Equipment 3 is a crawler excavator. The continuous tracks on the crawler excavator make this unit easily mobile. 5 Furthermore, because Equipment 3 is used in the construction industry, the unit is typically used at various job sites and is constantly on the move. 6 Additionally, Weir Bros., Inc.’s actions have caused BOTW to believe that Equipment 3 is in immediate danger. Specifically, Weir Bros. Inc. has failed and refused to make regularly scheduled payments as required by the EFA. As shown in the payment history attached at Exhibit “N2-1” and incorporated herein by reference, Weir Bros, Inc. is past due on its payments for the months of July, August, September, October, and November 2011. Weir Bros., First Supplement to Affidavit of Bank of the West Page 2 of4 ~ r Inc.’s last two payments to BOTW were both returned for insufficient funds. Despite demand and opportunities to cure default, Weir Bros., Inc. still owes finance payments for the past 5 months. 7 Lee Weir and Weir Bros. Inc.’s management/principles have consistently ignored and not returned BOTW’s calls regarding its default status and payment. Weir Bros., Inc, has also repeatedly refused to return Equipment 3 to BOTW as required under the EFA. BOTW’s repossession agents have not been able to locate Equipment 3 at Weir Bros., Inc.’s office and their repossession attempts have all been foiled by Weir Bros., Inc. In addition, despite several requests by BOTW to inspect Equipment 3 (which is an express right under the EFA), Weir Bros., Inc. has refused to comply nor has it provided the requested and required insurance binder on Equipment 3. 8 Equally important, since Weir Bros., Inc.’s defaults under the EFA, BOTW has learned of at least two other creditors who have tried to repossess their equipment from Weir Bros., Inc. and one instance where Weir Bros., Inc. has used an auction company to sell equipment. 9 Based on the facts set out in this affidavit, and as BOTW’s representative, I reasonably believe that the Weir Bros., Inc. will conceal, or dispose of, or ill-treat, or waste, or destroy, or remove all or part of Equipment 3 outside Dallas County during the pendency of this action. 10. All documents attached to this affidavit, including but not limited to Weir Bros., Inc.’s payment history under this account are true and correct copies of the original business records maintained by BOTW and it was the regular course of business of BOTW for an employee or representative of BOTW with knowledge of the act, event, condition, opinion or diagnosis to make the record or to transmit information thereof to be included in such record; and First Supplement to Affidavit of Bank of the West Page 3 of4 — the record was made at or near the time or reasonably soon thereafter. The records attached hereto are the original or exact duplicates of the original Die Rowe Z Further affiant sayeth not. James Roach Title. Assistant Vice President, Special Assets Officer Company Bank of the West SIGNED under oath before me on this “¥ day of __ AVaveewbaz-, 2011 Notary Public, State of California First Supplement to Affidavit of Bank of the West Page 4 of 4 a CMAINT.11 Lease Contract Maintenance 11/08/2011 Payment History Inquiry Contract 300-0856187-001 WEIR BROS Inc - Trans Type Check/Memo Date Due Date Revd Amount Revd Tot Rental 0001) 3416107 Retn 10527 06/15/11 09/22/11 ~3,277 12 ~3,269. 12 0002) 3411627 Over 10527 06/15/11 09/22/11 3,277 12 3,269. 12 06/15/11 ae 0003) 2216854 Retn 10355 07/29/11 -6,554 24 -6,554. 0004) 2211981 Stand 1035S 06/15/11 07/29/ 1 1 6,554 24 6,554 0005) 2176178 Over 11284 03/15/11 05/25/11 10,486 78 9,831 36 0006) 2136076 Over 56795 03/15/11 655 42 0007) 2136031 Over 56795 01/15/11 03/15/11 5,898 82 5,898 82 0008) 2136030 Over 56796 03/15/11 917 59 0005) 2092268 Stand 55436 12/15/10 12/27/10 3,932 54 3,932 $4 0010) 2092267 Stand 55430 11/15/10 12/27/10 3,277 12 3,277 12 0011) 2058144 Over 54156 04/15/10 10/22/10 12,475 04 9,831 36 0012) 1998073 Over 51452 06/15/10 06/29/10 6,554 24 6,554 24 0013) 1997761 Over 51571 05/15/10 06/29/10 3,285 12 3,277 12 0014) 1981496 Over $0919 03/15/10 05/28/10 6,562 24 6,554 24 0015) 1970182 Stand $0405 02/15/10 05/11/10 3,277 12 3,277 12 0016) 1953566 Retn 49834 02/15/10 03/26/10 -6,554 24 -6,554. 24 Selection More. EXHIBIT i “tya-\" —— _ CMAINT.11 Lease Contract Maintenance 11/08/2011 Payment History Inquiry Contract. 300-0856187-001 WEIR BROS INC Trans Type Check/Memo Date Due Date Revd Amount Revd Tot Rental 0017) 946206 Over 49834 02/15/10 03/26/10 6,554 24 6,554 24 0018) 1931897 Over 49331 01/15/10 02/26/10 3,277 12 3,277 12 0019) 1866158 Stand 47116 11/15/09 10/27/09 7,209 66 6,554 24 0020) 1859979 Stand 46714 09/15/09 10/14/09 6,554 24 6,554 24 0021) 1830812 Over 45993 07/15/09 08/24/09 9,077 62 6,554 24 0022) 1799919 Stand 44882 06/15/09 06/30/09 3,277 12 3,277 12 0023) 1779135 Over 44370 04/15/09 05/28/09 6,554 24 6,554 24 0024) 1745505 Over 43122 03/15/09 03/30/09 3,277 12 3,277 12 0025) 1731826 Over 42903 02/15/09 03/10/09 3,277 12 3,277 12 0026) 1718293 Over 42481 01/15/09 02/17/09 3,277 12 2,949 42 0027) 1695851 Over 41767 12/15/08 01/12/09 3,277 12 3,277 12 0028) 1678742 Stand 41487 11/15/08 12/11/08 3,277 12 3,277 12 0029) 1659785 Over 40945 10/15/08 11/10/08 4,587 95 3,604 82 0030) 1644953 Over 40258 09/15/08 10/14/08 3,277 12 3,277 12 0031) 1634618 Over 40008 08/15/08 09/26/08 3,932 54 3,277 12 0032) 1605435 Stand 38954 06/15/08 08/08/08 6,554 24 6,554 24 Selection More... e ee —