COMMERCIAL SECURITY AGREEMENT
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Principal
$2,000,000.00
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Loan
Date
April
1, 2010
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Maturity
April
1, 2011
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Loan
No
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Call
/ Coll
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Account
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Officer
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Initials
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References
in the boxes above are for Xxxxxx’s use only and do not limit the
applicability of this document to any particular loan or
item.
Any
item above containing “***” has been omitted due to text length
limitations.
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Grantor:
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Wyoming
Financial Lenders, Inc.
00000
X Xxxxxx, Xxxxx 000
Xxxxx,
XX 00000
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Lender:
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WERCS
000
Xxxx 0xx
Xxxxxx
Xxxxxx,
XX 00000
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THIS COMMERCIAL SECURITY
AGREEMENT dated April 1, 2010, is made and executed between Wyoming
Financial Lenders, Inc. (“Grantor”) and WERCS (“Lender”).
GRANT
OF SECURITY INTEREST. For valuable consideration, Grantor grants to Lender
a security interest in the Collateral to secure the Indebtedness and agrees that
Xxxxxx shall have the rights stated in this Agreement with respect to the
Collateral, in addition to all other rights which Lender may have by
law.
COLLATERAL DESCRIPTION.
The word “Collateral” as used in this Agreement means the following described
property, whether now owned or hereafter acquired, whether now existing or
hereafter arising, and wherever located, in which Grantor is giving to Lender a
security interest for the payment of the Indebtedness and performance of all
other obligations under the Note and this Agreement:
All
property, assets, rights and interest in property of Debtor, of any kind or
description, tangible or intangible, whether now owned or existing or hereafter
acquired or arising and wheresoever located including, but not being limited to,
the following: All deposit accounts, accounts and accounts receivable of
Debtor, whether now in existence or hereafter coming into existence; all letter
of credit rights; all chattel paper (whether tangible or electronic), contract
rights, instruments (including promissory notes), documents, general intangibles
(including, without limitation, payment intangibles, trademarks, service marks,
trade names, patents, copyrights and licenses), inventory (including raw
materials inventory, finished goods inventory, parts, supplies) and goods in
process of Debtor, whether now in existence or owned or hereafter coming into
existence or acquired, wherever located, and all returned goods, and
repossessions and replacements thereof; all vehicles, furniture, machinery and
equipment now owned and hereafter acquired by Debtor (including all embedded
software); all investment property; all supporting obligations, software and
commercial tort claims; all accessions, additions, replacements, and
substitutions relating to any of the foregoing; all records of any kind relating
to any of the foregoing; all proceeds relating to any of the foregoing
(including insurance, general intangibles and accounts proceeds); all insurance
policies insuring the foregoing property or any part thereof including unearned
premiums and all refunds.
In
addition, the word “Collateral” also includes all the following, whether now
owned or hereafter acquired, whether now existing or hereafter arising, and
wherever located:
(A)
All accessions, attachments, accessories, replacements of and additions to any
of the collateral described herein, whether added now or later.
(B)
All products and produce of any of the property described in this Collateral
section.
(C)
All accounts, general intangibles, instruments, rents, monies, payments, and all
other rights, arising out of a sale, lease, consignment or other disposition of
any of the property described in this Collateral section.
(D)
All proceeds (including insurance proceeds) from the sale, destruction, loss, or
other disposition of any of the property described in this Collateral section,
and sums due from a third party who has damaged or destroyed the collateral or
from that party’s insurer, whether due to judgment, settlement or other
process.
(E)
All records and data relating to any of the property described in this
Collateral section, whether in the form of a writing, photograph, microfilm,
microfiche, or electronic media, together with all of Grantor’s right, title,
and interest in and to all computer software required to utilize, create,
maintain, and process any such records or data on electronic media.
CROSS-COLLATERALIZATION.
In addition to the Note, this Agreement secures all obligations, debts and
liabilities, plus interest thereon, of Grantor to Lender, or any one or more of
them, as well as all claims by Lender against Grantor or any one or more of
them, whether now existing or hereafter arising, whether related or unrelated to
the purpose of the Note, whether voluntary or otherwise, whether due or not due,
direct or indirect, determined or undetermined, absolute or contingent,
liquidated or unliquidated, whether Grantor may be liable individually or
jointly with others, whether obligated as guarantor, surety, accommodation party
or otherwise, and whether recovery upon such amounts may be or hereafter may
become barred by any statute of limitations, and whether the obligation to repay
such amounts may be or hereafter may become otherwise
unenforceable.
GRANTOR’S REPRESENTATIONS AND
WARRANTIES WITH RESPECT TO THE COLLATERAL. With respect to the
Collateral, Grantor represents and promises to Lender that:
Perfection of Security
Interest. Xxxxxxx agrees to take whatever actions are requested by
Xxxxxx to perfect and continue Xxxxxx’s security interest in the
Collateral. Upon request of Xxxxxx, Grantor will deliver to Lender any and
all of the documents evidencing or constituting the Collateral, and Grantor will
note Xxxxxx’s interest upon any and all chattel paper and instruments if not
delivered to Lender for possession by Xxxxxx. This is a continuing Security
Agreement and will continue in effect even though all or any part of the
Indebtedness is paid in full and even though for a period of time Grantor may
not be indebted to Lender.
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Loan
No: 10101
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(Continued)
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Page
2
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Notices to Lender.
Grantor will promptly notify Lender in writing at Xxxxxx’s address shown above
(or such other addresses as Lender may designate from time tot time prior to any
(1) change in Grantor’s name; (2) change in Grantor’s assumed business
name(s); (3) change in themanagement of the Corporation Grantor; (4) change
in the authorized signer(s); (5) change in Grantor’s principal office
address; (6) change in Grantor’s state of organization; (7) conversion
of Grantor to a new or different type of business entity; or (8) change in
any other aspect of Grantor that directly or indirectly relates to any
agreements between Grantor and Lender. No change in Grantor’s name or
state of organization will take effect until after Xxxxxx has received
notice.
No Violation. The
execution and delivery of this Agreement will not violate any law or agreement
governing Grantor or to which Grantor is a party, and its certificate or
articles of incorporation and bylaws do not prohibit any term or condition of
this Agreement.
Enforceability of
Collateral. To the extent the Collateral consists of accounts,
chattel paper, or general intangibles, as defined by the Uniform Commercial
Code, the Collateral is enforceable in accordance with its terms, is genuine,
and fully complies with all applicable laws and regulations concerning form,
content and manner of preparation and execution, and all persons appearing to be
obligated on the Collateral have authority and capacity to contract and are in
fact obligated as they appear to be on the Collateral. There shall be no
setoffs or counterclaims against any of the collateral, and no agreement shall
have been made under which any deductions or discounts may be claimed concerning
the Collateral except those disclosed to Lender in writing.
Location of the
Collateral. Except in the ordinary course of Xxxxxxx’s business,
Xxxxxxx agrees to keep the Collateral at Grantor’s address shown above or at
such other locations as are acceptable to Lender. Upon Lender’s request,
Grantor will deliver to Lender in form satisfactory to Lender a schedule of real
properties and Collateral locations relating to Grantor’s operations, including
without limitation the following: (1) all real property Grantor owns or is
purchasing; (2) all real property Grantor is renting or leasing;
(3) all storage facilities Grantor owns, rents, leases, or uses; and
(4) all other properties where Collateral is or may be
located.
Removal of the
Collateral. Except in the ordinary course of Grantor’s business,
Grantor shall not remove the Collateral from its existing location without
Lender’s prior written consent. Grantor shall, whenever requested, advise
Lender of the exact location of the Collateral.
Transactions Involving
Collateral. Except for inventory sold or accounts collected in the
ordinary course of Grantor’s business, or as otherwise provided for in this
Agreement, Grantor shall not sell, offer to sell, or otherwise transfer or
dispose of the Collateral. Grantor shall not pledge, mortgage, encumber or
otherwise permit the collateral to be subject to any lien, security interest,
encumbrance, or charge, other than the security interest provided for in this
Agreement, without the prior written consent of Lender. This includes
security interests even if junior in right to the security interests granted
under this Agreement. Unless waived by Xxxxxx, all proceeds from any
disposition of the Collateral (for whatever reason) shall be held in trust for
Lender and shall not be commingled with any other funds; provided however, this
requirement shall not constitute consent by Lender to any sale or other
disposition. Upon receipt, Grantor shall immediately deliver any such
proceeds to Lender.
Title. Grantor
represents and warrants to Lender that Grantor holds good and marketable title
to the Collateral, free and clear of all liens and encumbrances except for the
lien of this Agreement. No financing statement covering any of the
Collateral is on the file in any public office other than those which reflect
the security interest created by this Agreement or to which Lender has
specifically consented. Grantor shall defend Xxxxxx’s rights in the
Collateral against the claims and demands of all other persons.
Repairs and Maintenance.
Grantor agrees to keep and maintain, and to cause others to keep and maintain,
the Collateral in good order, repair and condition at all times while this
Agreement remains in effect. Xxxxxxx further agrees to pay when due all
claims for work done on, or services rendered or material furnished in
connection with the Collateral so that no lien or encumbrance may ever attach to
or be filed against the Collateral.
Inspection of
Collateral. Lender and Xxxxxx’s designated representatives and
agents shall have the right at all reasonable times to examine and inspect the
Collateral wherever located.
Taxes, Assessments and
Liens. Grantor will pay when due all taxes, assessments and liens
upon the Collateral, its use or operation, upon this Agreement, upon any
promissory note or notes evidencing the Indebtedness, or upon any of the other
Related Documents. Grantor may withhold any such payment or may elect to
contest any lien if Grantor is in good faith conducting an appropriate
proceeding to contest the obligation to pay and so long as Xxxxxx’s interest in
the Collateral is not jeopardized in Xxxxxx’s sole opinion. If the
Collateral is subjected to a lien which is not discharged within fifteen
(15) days, Grantor shall deposit with Lender cash, a sufficient corporate
surety bond or other security satisfactory to Lender in an amount adequate to
provide for the discharge of the lien plus any interest, costs, attorneys’ fees
or other charges that could accrue as a result of foreclosure or sale of the
Collateral. In any contest Grantor shall defend itself and Xxxxxx and
shall satisfy any final adverse judgment before enforcement against the
Collateral. Grantor shall name Xxxxxx as an additional obligee under any
surety bond furnished in the contest proceedings. Xxxxxxx further agrees
to furnish Lender with evidence that such taxes, assessments, and governmental
and other charges have been paid in full and in a timely manner. Grantor
may withhold any such payment or may elect to contest any lien if Grantor is in
good faith conducting an appropriate proceeding to the contest the obligation to
pay and so long as Xxxxxx’s interest in the Collateral is not
jeopardized.
Compliance with Governmental
Requirements. Grantor shall comply promptly with all laws,
ordinances, rules and regulations of all governmental authorities, now or
hereafter in effect, applicable to the ownership, production, disposition, or
use of the Collateral, including all laws or regulations relating to the undue
erosion of highly-erodible land or relating to the conversion of wetlands for
the production of an agricultural product or commodity. Grantor may
contest in good faith any such law, ordinance or regulation and withhold
compliance during any proceeding, including appropriate appeals, so long as
Xxxxxx’s interest in the Collateral, in Xxxxxx’s opinion, is not
jeopardized.
Hazardous Substances.
Grantor represents and warrants that the Collateral never has been, and never
will be so long as this Agreement remains a lien on the Collateral, used in
violation of any Environmental Laws or for the generation, manufacture, storage,
transportation, treatment, disposal, release or threatened release of any
Hazardous Substance. The representations and warranties contained herein
are based on Grantor’s due diligence in investigating the Collateral for
Hazardous Substances. Grantor hereby (1) releases and waives any
future claims against Lender for indemnity or contribution in the event Grantor
becomes liable for cleanup or other costs under any Environmental Laws, and
(2) agrees to indemnify, defend, and hold harmless Lender against any and
all claims and losses resulting from a breach of this provision of this
Agreement. This obligation to indemnify and defend shall survive the
payment of the Indebtedness and the satisfaction of this Agreement.
Maintenance of Casualty
Insurance. Grantor shall procure and maintain all risks insurance,
including without limitation fire, theft and liability coverage together with
such other insurance as Lender may require with respect to the Collateral, in
form, amounts, coverages and basis reasonably acceptable to Lender and issued by
a company or companies reasonably acceptable to Lender. Grantor, upon
request of Xxxxxx, will deliver to Lender from time to time the policies or
certificates of insurance in form satisfactory to Lender, including stipulations
that coverages will not be cancelled or diminished without at least sixty
(60) days’ prior written notice to Xxxxxx and not including any disclaimer
of the insurer’s liability for failure to give such a notice. Each
insurance policy also shall include an endorsement providing that coverage in
favor of Lender will not be impaired in any way by any act, omission or default
of Grantor or any other person. In connection with all policies covering
assets in which Lender holds or is offered a security interest, Grantor will
provide Lender with such loss payable or other endorsements as Lender may
require. If Grantor at any time fails to obtain or maintain any insurance
as required under this Agreement, Lender may (but shall not be obligated to)
obtain such insurance as Lender deems appropriate, including if Lender so
chooses “single interest insurance,” which will cover only Xxxxxx’s interest in
the Collateral.
Application of Insurance
Proceeds. Grantor shall promptly notify Lender of any loss or
damage to the Collateral if the estimated cost of repair or replacement exceeds
$1,000.00, whether or not such casualty or loss is covered by insurance.
Lender may make proof of loss if Grantor fails to do so within fifteen
(15) days of the casualty. All proceeds of any insurance on the
Collateral, including accrued proceeds thereon, shall be held by Lender as part
of the Collateral. If Lender consents to repair or replacement of the
damaged or destroyed Collateral, Lender shall, upon satisfactory proof of
expenditure, pay or reimburse Grantor from the proceeds for the reasonable cost
of repair or restoration. If Lender does not consent to repair or
replacement of the Collateral, Lender shall retain a sufficient amount of the
proceeds to pay all of the Indebtedness, and shall pay the balance to
Grantor. Any proceeds which have not been disbursed within six
(6) months after their receipt and which Grantor has not committed to the
repair or restoration of the Collateral shall be used to prepay the
Indebtedness.
Insurance Reserves.
Lender may require Grantor to maintain with Lender reserves for payment of
insurance premiums, which reserves shall be created by monthly payments from
Grantor of a sum estimated by Lender to be sufficient to produce, at least
fifteen (15) days before the premium due date, amounts at least equal to
the insurance premiums to be paid. If fifteen (15) days before
payment is due, the reserve funds are insufficient, Grantor shall upon demand
pay any deficiency to Lender. The reserve funds shall be held by Lender as
a general deposit and shall constitute a non-interest-bearing account which
Lender may satisfy by payment of the insurance premiums required to be paid by
Grantor as they become due. Lender does not hold the reserve funds in
trust for Grantor, and Xxxxxx is not the agent of Grantor for payment of the
insurance premiums required to be paid by Grantor. The responsibility for
the payment of premiums shall remain Grantor’s sole responsibility.
Insurance Reports.
Grantor, upon request of Xxxxxx, shall furnish to Lender reports on each
existing policy of insurance showing such information as Lender may reasonably
request including the following: (1) the name of the insurer; (2) the risks
insured; (3) the amount of the policy; (4) the property insured; (5) the then
current value on the basis of which insurance has been obtained and the manner
of determining that value; and (6) the expiration date of the policy. In
addition, Grantor shall upon request by Lender (however not more often than
annually) have an independent appraiser satisfactory to Lender determine, as
applicable, the cash value or replacement cost of the Collateral.
Financing Statements.
Grantor authorizes Lender to file a UCC financing statement, or alternatively, a
copy of this Agreement to perfect Xxxxxx’s security interest. At Lender’s
request, Xxxxxxx additionally agrees to sign all other documents that are
necessary to perfect, protect, and continue Xxxxxx’s security interest in the
Property. Grantor will pay all filing fees, title transfer fees, and other
fees and costs involved unless prohibited by law or unless Lender is required by
law to pay such fees and costs. Grantor irrevocably appoints Xxxxxx to
execute documents necessary to transfer title if there is a default.
Lender may file a copy of this Agreement as a financing statement. If
Grantor changes Grantor’s name or address, or the name or address of any person
granting a security interest under this Agreement changes, Grantor will promptly
notify the Lender of such change.
GRANTOR’S RIGHT TO
POSSESSION. Until default, Grantor may have possession of the
tangible personal property and beneficial use of all the Collateral and may use
it in any lawful manner not inconsistent with this Agreement or the Related
Documents, provided that Grantor’s right to possession and beneficial use shall
not apply to any Collateral where possession of the Collateral by Lender is
required by law to perfect Lender’s security interest in such Collateral.
If Lender at any time has possession of any Collateral, whether before or after
an Event of Default, Lender shall be deemed to have exercised reasonable care in
the custody and preservation of the Collateral if Lender takes such action for
that purpose as Grantor shall request or as Lender, in Xxxxxx’s sole discretion,
shall deem appropriate under the circumstances, but failure to honor any request
by Grantor shall not of itself be deemed to be a failure to exercise reasonable
care. Lender shall not be required to take any steps necessary to preserve
any rights in the Collateral against prior parties, nor to protect, preserve or
maintain any security interest given to secure the Indebtedness.
XXXXXX’S EXPENDITURES.
If any action or proceeding is commenced that would materially affect Lender’s
interest in the Collateral or if Grantor fails to comply with any provision of
this Agreement or any Related Documents, including but not limited to Grantor’s
failure to discharge or pay when due any amounts Grantor is required to
discharge or pay under this Agreement or any Related Documents, Lender on
Grantor’s behalf may (but shall not be obligated to) take any action that Lender
deems appropriate, including but not limited to discharging or paying all taxes,
liens, security interests, encumbrances and other claims, at any time levied or
placed on the Collateral and paying all costs for insuring, maintaining and
preserving the Collateral. All such expenditures incurred or paid by
Lender for such purposes will then bear interest at the rate charged under the
Note from the date incurred or paid by Lender to the date of repayment by
Grantor. All such expenses will become a part of the Indebtedness and, at
Lender’s option, will (A) be payable on demand; (B) be added to the
balance of the Note and be apportioned among and be payable with any installment
payments to become due during either (1) the term of any applicable
insurance policy; or (2) the remaining term of the Note; or (C) be
treated as a balloon payment which will be due and payable at the Note’s
maturity. The Agreement also will secure payment of these amounts.
Such right shall be in addition to all other rights and remedies to which Xxxxxx
may be entitled upon Default.
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Loan
No: 10101
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(Continued)
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Page
4
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DEFAULT. Each of the
following shall constitute an Event of Default under this
Agreement:
Payment Default. Grantor
fails to make any payment when due under the Indebtedness.
Other Defaults. Grantor
fails to comply with or to perform any other term, obligation, covenant or
condition contained in this Agreement or in any of the Related Documents or to
comply with or to perform any term, obligation, covenant or condition contained
in any other agreement between Lender and Grantor.
Default in Favor of Third
Parties. Any guarantor or Grantor defaults under any loan,
extension of credit, security agreement, purchase or sales agreement, or any
other agreement, in favor of any other creditor or person that may materially
affect any of any guarantor’s or Grantor’s property or ability to perform their
respective obligations under this Agreement or any of the Related
Documents.
False Statements. Any
warranty, representation or statement made or furnished to Lender by Grantor or
on Grantor’s behalf under this Agreement or the Related Documents is false or
misleading in any material respect, either now or at the time made or furnished
or becomes false or misleading at any time thereafter.
Defective
Collateralization. This Agreement or any of the Related Documents
ceases to be in full force and effect (including failure of any collateral
document to create a valid and perfected security interest or lien) at any time
and for any reason.
Insolvency. The
dissolution or termination of Grantor’s existence as a going business, the
insolvency of Grantor, the appointment of a receiver for any part of Grantor’s
property, any assignment for the benefit of creditors, any type of creditor
workout, or the commencement of any proceeding under any bankruptcy or
insolvency laws by or against Grantor.
Creditor or Forfeiture
Proceedings. Commencement of foreclosure or forfeiture proceedings,
whether by judicial proceeding, self-help, repossession or any other method, by
any creditor of Grantor or by any governmental agency against any collateral
securing the Indebtedness. This includes a garnishment of any of Grantor’s
accounts, including deposit accounts, with Xxxxxx. However, this Event of
Default shall not apply if there is a good faith dispute by Grantor as to the
validity or reasonableness of the claim which is the basis of the creditor or
forfeiture proceeding and if Grantor gives Xxxxxx written notice of the creditor
or forfeiture proceeding and deposits with Lender monies or a surety bond for
the creditor or forfeiture proceeding, in an amount determined by Lender, in its
sole discretion, as being an adequate reserve or bond for the
dispute.
Events Affecting
Guarantor. Any of the preceding events occurs with respect to any
Guarantor of any of the Indebtedness or Guarantor dies or becomes incompetent or
revokes or disputes the validity of, or liability under, any Guaranty of the
Indebtedness.
Adverse Change. A
material adverse change occurs in Grantor’s financial condition, or a change
occurs in Grantor’s current management, or Xxxxxx believes the prospect of
payment or performance of the Indebtedness is impaired.
Insecurity. Lender in
good faith believes itself insecure.
Cure Provisions. If any
default, other than a default in payment is curable and if Grantor has not been
given a notice of a breach of the same provision of this Agreement within the
preceding twelve (12) months, it may be cured if Grantor, after Lender
sends written notice to Grantor demanding cure of such default: (1) cures
the default within ten (10) days; or (2) if the cure requires more
than ten (10) days, immediately initiates steps which Lender deems in
Lender’s sole discretion to be sufficient to cure the default and thereafter
continues and completes all reasonable and necessary steps sufficient to produce
compliance as soon as reasonably practical.
RIGHTS AND REMEDIES ON
DEFAULT. If an Event of Default occurs under this Agreement, at any
time thereafter, Lender shall have all the rights of a secured party under the
Wyoming Uniform Commercial Code. In addition and without limitation,
Lender may exercise any one or more of the following rights and
remedies:
Accelerate Indebtedness.
Xxxxxx may declare the entire Indebtedness, including any prepayment penalty
which Grantor would be required to pay, immediately due and payable, without
notice of any kind to Grantor.
Assemble Collateral.
Lender may require Grantor to deliver to Lender all or any portion of the
Collateral and any and all certificates of title and other documents relating to
the Collateral. Lender may require Grantor to assemble the Collateral and
make it available to Lender at a place to be designated by Lender. Xxxxxx
also shall have full power to enter upon the property of Grantor to take
possession of and remove the Collateral. If the Collateral contains other
goods not covered by this Agreement at the time of repossession, Grantor agrees
Lender may take such other goods, provided that Xxxxxx makes reasonable efforts
to return them to Grantor after repossession.
Sell the Collateral.
Lender shall have full power to sell, lease, transfer, or otherwise deal with
the Collateral or proceeds thereof in Lender’s own name or that of
Grantor. Lender may sell the Collateral at public auction or private
sale. Unless the Collateral threatens to decline speedily in value or is
of a type customarily sold on a recognized market, Lender will give Grantor, and
other persons as required by law, reasonable notice of the time and place of any
public sale, or the time after which any private sale or any other disposition
of the Collateral is to be made. However, no notice need be provided to
any person who, after Event of Default occurs, enters into and authenticates an
agreement waiving that person’s right to notification of sale. The
requirements of reasonable notice shall be met if such notice is given at least
ten (10) days before the time of the sale or disposition. All expenses
relating to the disposition of the Collateral, including without limitation the
expenses of retaking, holding, insuring, preparing for sale and selling the
Collateral, shall become a part of the Indebtedness secured by this Agreement
and shall be payable on demand, with interest at the Note rate from date of
expenditure until repaid.
Appoint Receiver. Lender
shall have the right to have a receiver appointed to take possession of all or
any part of the Collateral, with the power to protect and preserve the
Collateral, to operate the Collateral preceding foreclosure or sale, and to
collect the Rents from the Collateral and apply the proceeds, over and above the
cost of the receivership, against the Indebtedness. The receiver may serve
without bond if permitted by law. Xxxxxx’s right to the appointment of a
receiver shall exist whether or not the apparent value of the Collateral exceeds
the Indebtedness by a substantial amount. Employment by Xxxxxx shall not
disqualify a person from serving as a receiver.
Collect Revenues, Apply
Accounts. Lender, either itself or through a receiver, may collect
the payments, rents, income, and revenues from the Collateral. Lender may
at any time in Xxxxxx’s discretion transfer any Collateral into Xxxxxx’s own
name or that of Xxxxxx’s nominee and receive the payments, rents, income, and
revenues therefrom and hold the same as security for the Indebtedness or apply
it to payment of the Indebtedness in such order of preference as Lender may
determine. Insofar as the Collateral consists of accounts, general
intangibles, insurance policies, instruments, chattel paper, choses in action,
or similar property, Lender may demand, collect, receipt for, settle,
compromise, adjust, sue for, foreclose, or realize on the Collateral as Lender
may determine, whether or not Indebtedness or Collateral is then due. For
these purposes, Xxxxxx may, on behalf of and in the name of Grantor, receive,
open and dispose of mail addressed to Grantor; change any address to which mail
and payments are to be sent; and endorse notes, checks, drafts, money orders,
documents of title, instruments and items pertaining to payment, shipment, or
storage of any Collateral. To facilitate collection, Xxxxxx may notify
account debtors and obligors on any Collateral to make payments directly to
Lender.
Obtain Deficiency. If
Xxxxxx chooses to sell any or all of the Collateral, Lender may obtain a
judgment against Grantor for any deficiency remaining on the Indebtedness due to
Lender after application of all amounts received from the exercise of the rights
provided in this Agreement. Grantor shall be liable for a deficiency even
if the transaction described in this subsection is a sale of accounts or chattel
paper.
Other Rights and
Remedies. Lender shall have all the rights and remedies of a
secured creditor under the provisions of the Uniform Commercial Code, as may be
amended from time to time. In addition, Lender shall have and may exercise
any or all other rights and remedies it may have available at law, in equity, or
otherwise.
Election of Remedies.
Except as may be prohibited by applicable law, all of Lender’s rights and
remedies, whether evidenced by this Agreement, the Related Documents, or by any
other writing, shall be cumulative and may be exercised singularly or
concurrently. Election by Xxxxxx to pursue any remedy shall not exclude
pursuit of any other remedy, and an election to make expenditures or to take
action to perform an obligation of Grantor under this Agreement, after Xxxxxxx’s
failure to perform, shall not affect Xxxxxx’s right to declare a default and
exercise its remedies.
MISCELLANEOUS
PROVISIONS. The following miscellaneous provisions are a part of
this Agreement:
Amendments. This
Agreement, together with any Related Documents, constitutes the entire
understanding and agreement of the parties as to the matters set forth in this
Agreement. No alteration of or amendment to this Agreement shall be
effective unless given in writing and signed by the party or parties sought to
be charged or bound by the alteration or amendment.
Attorneys’ Fees;
Expenses. Xxxxxxx agrees to pay upon demand all of Xxxxxx’s costs
and expenses, including Xxxxxx’s attorneys’ fees and Xxxxxx’s legal expenses,
incurred in connection with the enforcement of this Agreement. Lender may
hire or pay someone else to help enforce this Agreement, and Grantor shall pay
the costs and expenses of such enforcement. Costs and expenses include
Xxxxxx’s attorneys’ fees and legal expenses whether or not there is a lawsuit,
including attorneys’ fees and legal expenses for bankruptcy proceedings
(including efforts to modify or vacate any automatic stay or injunction),
appeals, and any anticipated post-judgment collection services. Grantor
also shall pay all court costs and such additional fees as may be directed by
the court.
Caption Headings.
Caption headings in this Agreement are for convenience purposes only and are not
to be used to interpret or define the provisions of this Agreement.
Governing
Law. With respect to procedural matters related to the perfection and
enforcement of Xxxxxx’s rights against the Collateral, this Agreement will be
governed by federal law applicable to Lender and to the extent not preempted by
federal law, the laws of the State of Wyoming. In all other respects, this
Agreement will be governed by federal law applicable to Lender and, to the
extent not preempted by federal law, the laws of the State of Nebraska without
regard to its conflicts of law provisions. However, if there ever is a
question about whether any provision of this Agreement is valid or enforceable,
the provision that is questioned will be governed by whichever state or federal
law would find the provision to be valid and enforceable. The loan
transaction that is evidenced by the Note and this Agreement has been applied
for, considered, approved and made, and all necessary loan documents have been
accepted by Lender in the State of Nebraska.
Choice of Venue. If
there is a lawsuit, Xxxxxxx agrees upon Xxxxxx’s request to submit to the
jurisdiction of the courts of Xxxxxxx County, State of Nebraska.
No Waiver by Xxxxxx.
Lender shall not be deemed to have waived any rights under this Agreement unless
such waiver is given in writing and signed by Xxxxxx. No delay or omission
on the part of Lender in exercising any right shall operate as a waiver of such
right or any other right. A waiver by Xxxxxx of a provision of this
Agreement shall not prejudice or constitute a waiver of Lender’s right otherwise
to demand strict compliance with that provision or any other provision of this
Agreement. No prior waiver by Xxxxxx, nor any course of dealing between
Xxxxxx and Grantor, shall constitute a waiver of any of Lender’s rights or of
any of Grantor’s obligations as to any future transactions. Whenever the
consent of Lender is required under this Agreement, the granting of such consent
by Lender in any instance shall not constitute continuing consent to subsequent
instances where such consent is required and in all cases such consent may be
granted or withheld in the sole discretion of Lender.
Notices. Any notice
required to be given under this Agreement shall be given in writing, and shall
be effective when actually delivered, when actually received by telefacsimile
(unless otherwise required by law), when deposited with a nationally recognized
overnight courier, or, if mailed, when deposited in the United States mail, as
first class, certified or registered mail postage prepaid, directed to the
addresses shown near the beginning of this Agreement. Any party may change
its address for notices under this Agreement by giving formal written notice to
the other parties, specifying that the purpose of the notice is to change the
party’s address. For notice purposes, Xxxxxxx agrees to keep Xxxxxx
informed at all times of Xxxxxxx’s current address. Unless otherwise
provided or required by law, if there is more than one Grantor, any notice given
by Lender to any Grantor is deemed to be notice given to all
Grantors.
Power of Attorney.
Grantor hereby appoints Xxxxxx as Xxxxxxx’s irrevocable attorney-in-fact for the
purpose of executing any documents necessary to perfect, amend, or to continue
the security interest granted in this Agreement or to demand termination of
filings of other secured parties. Lender may at any time, and without
further authorization from Grantor, file a carbon, photographic or other
reproduction of any financing statement or of this Agreement for use as a
financing statement. Grantor will reimburse Lender for all expenses for
the perfection and the continuation of the perfection of Xxxxxx’s security
interest in the Collateral.
Severability. If a court
of competent jurisdiction finds any provision of this Agreement to be illegal,
invalid, or unenforceable as to any circumstance, that finding shall not make
the offending provision illegal, invalid, or unenforceable as to any other
circumstance. If feasible, the offending provision shall be considered
modified so that it becomes legal, valid and enforceable. If the offending
provision cannot be so modified, it shall be considered deleted from this
Agreement. Unless otherwise required by law, the illegality, invalidity,
or unenforceability of any provision of this Agreement shall not affect the
legality, validity or enforceability of any other provision of this
Agreement.
Successors and Assigns.
Subject to any limitations stated in this Agreement on transfer of Grantor’s
interest, this Agreement shall be binding upon and inure to the benefit of the
parties, their successors and assigns. If ownership of the Collateral
becomes vested in a person other than Grantor, Lender, without notice to
Grantor, may deal with Xxxxxxx’s successors with reference to this Agreement and
the Indebtedness by way of forbearance or extension without releasing Grantor
from the obligations of this Agreement or liability under the
Indebtedness.
Survival of Representations and
Warranties. All representations, warranties, and agreements made by
Grantor in this Agreement shall survive the execution and delivery of this
Agreement, shall be continuing in nature, and shall remain in full force and
effect until such time as Grantor’s Indebtedness shall be paid in
full.
Time is of the Essence.
Time is of the essence in the performance of this Agreement.
Waive Jury. All parties to this Agreement hereby
waive the right to any jury trial in any action, proceeding, or counterclaim
brought by any party against any other party.
DEFINITIONS. The
following capitalized words and terms shall have the following meanings when
used in this Agreement. Unless specifically stated to the contrary, all
references to dollar amounts shall mean amounts in lawful money of the United
States of America. Words and terms used in the singular shall include the
plural, and the plural shall include the singular, as the context may
require. Words and terms not otherwise defined in this Agreement shall
have the meanings attributed to such terms in the Uniform Commercial
Code:
Agreement. The word
“Agreement” means this Commercial Security Agreement, as this Commercial
Security Agreement may be amended or modified from time to time, together with
all exhibits and schedules attached to this Commercial Security Agreement from
time to time.
Borrower. The word
“Borrower” means Wyoming Financial Lenders, Inc. and includes all co-signers and
co-makers signing the Note and all their successors and assigns.
Collateral. The word
“Collateral” means all of Grantor’s right, title and interest in and to all the
Collateral as described in the Collateral Description section of this
Agreement.
Default. The word
“Default” means the Default set forth in this Agreement in the section titled
“Default”.
Environmental Laws. The
words “Environmental Laws” mean any and all state, federal and local statutes,
regulations and ordinances relating to the protection of human health or the
environment, including without limitation the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended, 42 U.S.C. Section
9601, et seq. (“CERCLA”), the Superfund Amendments and Reauthorization Act of
1986, Pub. L. No. 99-499 (“XXXX”), the Hazardous Materials Transportation Act,
49 U.S.C. Section 1801, et seq., the Resource Conservation and Recovery Act, 42
U.S.C. Section 6901, et seq., or other applicable state or federal laws, rules,
or regulations adopted pursuant thereto.
Event of Default. The
words “Event of Default” mean any of the events of default set forth in this
Agreement in the default section of this Agreement.
Grantor. The word
“Grantor” means Wyoming Financial Lenders, Inc.
Guarantor. The word
“Guarantor” means any guarantor, surety, or accommodation party of any or all of
the Indebtedness.
Guaranty. The word
“Guaranty” means the guaranty from Guarantor to Lender, including without
limitation a guaranty of all or part of the Note.
Hazardous Substances.
The words “Hazardous Substances” mean materials that, because of their quantity,
concentration or physical, chemical or infectious characteristics, may cause or
pose a present or potential hazard to human health or the environment when
improperly used, treated, stored, disposed of, generated, manufactured,
transported or otherwise handled. The words “Hazardous Substances” are
used in their very broadest sense and include without limitation any and all
hazardous or toxic substances, materials or waste as defined by or listed under
the Environmental Laws. The term “Hazardous Substances” also includes,
without limitation, petroleum and petroleum by-products or any fraction thereof
and asbestos.
Indebtedness. The word
“Indebtedness” means the indebtedness evidenced by the Note or Related
Documents, including all principal and interest together with all other
indebtedness and costs and expenses for which Grantor is responsible under this
Agreement or under any of the Related Documents. Specifically, without
limitation, Indebtedness includes all amounts that may be indirectly secured by
the Cross-Collateralization provision of this Agreement.
Lender. The word
“Lender” means WERCS, its successors and assigns.
Note. The word “Note”
means the Note executed by Wyoming Financial Lenders, Inc. in the principal
amount of $2,000,000.00 dated April 1, 2010, together with all renewals of,
extensions of, modifications of, refinancings of, consolidations of, and
substitutions for the note or credit agreement.
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COMMERCIAL
SECURITY AGREEMENT
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Loan
No: 10101
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(Continued)
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Page 7
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Property. The word
“Property” means all of Grantor’s right, title and interest in and to all the
Property as described in the “Collateral Description” section of this
Agreement.
Related Documents. The
words “Related Documents” mean all promissory notes, credit agreements, loan
agreements, environmental agreements, guaranties, security agreements,
mortgages, deeds of trust, security deeds, collateral mortgages, and all other
instruments, agreements and documents, whether now or hereafter existing,
executed in connection with the Indebtedness.
GRANTOR
HAS READ AND UNDERSTOOD ALL THE PROVISIONS OF THIS COMMERCIAL SECURITY AGREEMENT
AND AGREES TO ITS TERMS. THIS AGREEMENT IS DATED APRIL 1,
2010.
GRANTOR:
WYOMING
FINANCIAL LENDERS, INC.
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By:
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Xxxx
Xxxxxxxx, President of Wyoming
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Financial
Lenders, Inc.
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