[LOGO] SECURITY AGREEMENT
First National Bank (Stock & Partnership Interests)
of Omaha
Date: April 24, 1992
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1. The undersigned TRANSTERRA CO. (herein called "PLEDGOR"), for value
received, the receipt and sufficiency of which is hereby acknowledged by
these presents hereby Conveys, Assigns, Transfers and Delivers and Grants a
Security Interest to and/or confirms that PLEDGOR has Conveyed, Assigned,
Transferred and Delivered and Granted a Security Interest to First National
Bank of Omaha, a national banking association, with offices at One First
National Center, Omaha, Nebraska (herein called "BANK"), in the following
property (herein called the "COLLATERAL"), vis:
(a) 6,595 shares of AmeriTrade, Inc. stock, certificate #18
964 shares of AmeriTrade, Inc. stock, certificate #19
(herein called the "SECURITIES"), as to shares of stock which are
described above, the stock powers executed in blank and attached to the
SECURITIES, and the income and dividends thereon, including cash and
stock dividends, stock splits and rights to subscribe, and any
exchange of any of the SECURITIES for other property upon
reorganization, recapitalization or other readjustment of the
issuer thereof; in the event that PLEDGOR receives any such
property, PLEDGOR will immediately deliver same to BANK to be held
by BANK in the same manner as property originally deposited as
COLLATERAL;
(b) The proceeds of any and all property described in subparagraph (a)
above.
2. This assignment and security interest is granted to BANK to secure the
prompt and unconditional payment and performance when due of the following
(all of which is herein called the "INDEBTEDNESS"):
(a) any and all indebtedness obligations and liabilities of PLEDGOR to
BANK (including all claims of every nature and description of BANK
against PLEDGOR), now or hereafter existing or arising , absolute or
contingent, direct or indirect, secured or unsecured, due or to
become due, whether originally contracted with BANK or acquired in any
manner (including by way of participation) by BANK;
(b) all amounts which might be advanced by BANK to satisfy amounts
required to be paid by PLEDGOR under this Security Agreement or under
any other instrument at any time executed in connection with or as
security for the payment of any part of the INDEBTEDNESS or any amount
secured hereby or to pay any taxes, insurance premiums, liens, claims
and charges against any or all of the COLLATERAL, or any properties
covered by any instrument executed or to be executed by PLEDGOR to
secure any part of the INDEBTEDNESS or any amount secured hereby,
together with interest thereon to the extent provided;
(c) all advances, charges, costs and expenses (including reasonable
attorneys' fees and legal expenses) incurred by BANK in connection
with the transaction which gives rise to this Security Agreement, in
connection with any of the INDEBTEDNESS or any amount secured hereby
and in exercising any right, power or remedy conferred by this
Security Agreement or by law (including, but not limited to,
attorneys' fees and legal expenses incurred by BANK in the collection
of instruments deposited with or purchased by BANK and amounts
incurred in connection with the operation, maintenance or foreclosure
of any or all of the COLLATERAL);
(d) all of PLEDGOR's obligations in this Security Agreement or any other
document or agreement now or hereafter executed in connection with or
as security for any part of the INDEBTEDNESS or any amount secured
hereby; and
(e) any and all INDEBTEDNESS, obligations and liabilities of TRANSTERRA
CO. to BANK (including all claims of every nature and description of
BANK against such person), now or hereafter existing or arising,
absolute or contingent, direct or indirect, secured or unsecured, due
or to become due, whether originally contracted with BANK or acquired
in any manner (including by way of participation) by BANK and any and
all renewals, extensions for any period, and rearrangements thereof.
REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS.
PLEDGOR represents, warrants, covenants and agrees as follows:
3. As to any SECURITIES which are stock or other interest in corporations, the
SECURITIES are duly authorized, are validly issued and are validly
outstanding, are fully paid and are nonassessable, and were not issued in
violation of the preemptive rights of any person or entity or of any
agreement by which PLEDGOR or any issuer of the SECURITIES is bound. As to
any SECURITIES which are interest in partnerships, such interests are
valid, nonassessable interests in the partnerships indicated.
4. All information supplied and statements made by PLEDGOR in any financial,
credit or accounting statement or application for credit prior to,
contemporaneously with or subsequent to the execution of this Security
Agreement are and shall be true, correct, complete, valid and genuine.
5. Except for the security interest of BANK and unless otherwise agreed in
writing, PLEDGOR owns (and at the time of transfer or delivery of the
COLLATERAL to BANK owned or will own) good and indefeasible title to the
COLLATERAL free and clear of any other security interests, liens, adverse
claims or options; PLEDGOR has (and at the time of transfer or delivery of
the COLLATERAL to BANK had or will have) full right, power and authority to
convey, assign, transfer and deliver the COLLATERAL and to grant a security
interest in the COLLATERAL to BANK in the manner provided herein and free
and clear of any other security interests, liens, adverse claims and
options; no security interest or lien has been created by PLEDGOR or is
known by PLEDGOR to exist with respect to any COLLATERAL; and, to the best
of PLEDGOR's information and belief, no financing statement or other
security instrument is on file in any jurisdiction covering any COLLATERAL.
6. The SECURITIES which evidence interests in corporations were properly
issued, drawn, made and/or accepted and are genuine; the issuer, drawer,
maker, and/or acceptor thereof has no defenses (including defenses of any
party which would be available in an action on a simple contract and the
defenses of want or failure of consideration, non-performance of any
condition precedent, non-delivery, or delivery for a special purpose),
right of set off or claims to the securities; PLEDGOR has no knowledge that
the signature of the issuer, drawer, maker and/or acceptor is unauthorized;
none of the SECURITIES has been materially altered; all signatures on each
of the SECURITIES are genuine or authorized; no defense of any party is
good against PLEDGOR; PLEDGOR has no knowledge or any insolvency
proceedings instituted with respect to the issuer, maker and/or acceptor
of the SECURITIES; PLEDGOR's transfer of the SECURITIES to BANK is
effective and rightful; and PLEDGOR knows of no fact which might impair the
validity of the SECURITIES.
7. PLEDGOR agrees to pay prior to any deliquency all taxes, charges, liens and
assessments against the COLLATERAL, and upon the failure of PLEDGOR to do
so, BANK at its option may pay any of them and shall be the sole judge of
the legality or validity thereof and the amount necessary to discharge the
same.
8. PLEDGOR will at all times maintain with BANK COLLATERAL of a character
and value satisfactory to BANK. If at any time any of the COLLATERAL shall
depreciate in character or value or otherwise be unsatisfactory to BANK,
BANK in its discretion may demand such further COLLATERAL or such payment
on account of the INDEBTEDNESS as will be satisfactory to BANK.
9. BANK shall be deemed to have possession any of the COLLATERAL in transit
to it or set apart.
10. PLEDGOR will sign, execute, deliver and file, alone or with BANK, any
financing statement, security agreements or other documents or procure any
document as may be requested by BANK from time to time to confirm, perfect
and preserve the security interest created hereby, and in addition,
PLEDGOR hereby authorizes BANK to execute and deliver on behalf of PLEDGOR
and to file such financing statements, security agreements and other
documents without the signature of PLEDGOR. PLEDGOR shall do all such
additional and further acts, things, deeds, give such assurances and
execute such instruments as BANK requires to vest more completely in and
assure to BANK its rights under this Security Agreement. At the option of
BANK, a carbon, photographic or other reproduction of this Security
Agreement or of a financing statement covering the COLLATERAL shall be
sufficient as a financing statement and may be filed as a financing
statement.
11. PLEDGOR will transmit to BANK promptly all information that PLEDGOR may
have or receive (i) with respect to the COLLATERAL or (ii) with respect to
obligors of the COLLATERAL which might in any way affect the value of the
COLLATERAL or BANK's rights or remedies with respect thereto.
12. Unless otherwise agreed in writing, PLEDGOR will not pledge, mortgage,
otherwise encumber, create or suffer a security interest to exist in, any
of the COLLATERAL (other than in favor of BANK) or sell, assign or
otherwise transfer any of the COLLATERAL, to or in favor of anyone other
than BANK, and PLEDGOR will not file or permit to be filed any financing
statement or other security instrument with respect to the COLLATERAL
other than in favor of BANK.
13. PLEDGOR will not adjust, settle or compromise any of the COLLATERAL
without the prior written consent of BANK.
14. PLEDGOR agrees to pay to BANK at BANK's banking quarters, all advances,
charges, costs and expenses (including reasonable attorneys' fees and
legal expenses) incurred by BANK in connection with the transaction
which gives rise to this Security Agreement, in connection with
confirming, perfecting and preserving the security interest created
under this Security Agreement, in connection with protecting BANK
against the claims or interests of any third person against the
COLLATERAL, and in exercising any right, power or remedy conferred to
this Security Agreement or by law (including, but not limited to,
attorney's fees and legal expenses incurred by BANK in the collection of
instruments deposited with or purchased by BANK and amounts incurred in
connection with the operation, maintenance of foreclosure of any or all
of the COLLATERAL). The amount of all such advances, charges, costs and
expenses shall be due and payable by PLEDGOR to BANK upon demand
together with interest thereon from the date of demand at the maximum
rate specified in any document evidencing INDEBTEDNESS.
15. The term "COLLATERAL" shall include the property described or referred to
in Paragraph 1 above and the balance of every deposit account of PLEDGOR
with BANK and any other claim of PLEDGOR against BANK, now or hereafter
existing, and all money, instruments, securities, documents, chattel
paper, credits, claims, demands and any other property, rights and
interests of PLEDGOR which are now or at any time shall come into the
possession or custody or under the control of the BANK, for any purpose,
and shall include the proceeds of any thereof.
RIGHTS AND REMEDIES
16. BANK is hereby fully authorized and empowered (without the necessity of
any further consent or authorization from PLEDGOR)and the right is
expressly granted to BANK, and PLEDGOR hereby constitutes, appoints and
makes BANK as PLEDGOR's true and lawful Attorney and Agent-in-Fact for
PLEDGOR and in PLEDGOR's name, place and stead with full power of
substitution, in BANK's name or PLEDGOR's name or otherwise, for BANK's
sole use and benefit, but at PLEDGOR's cost and expense, to exercise,
without notice, all or any of the following powers at any time with
respect to all or any of the COLLATERAL (regardless of whether any of
the INDEBTEDNESS is due or not):
(a) notify account debtors or the obligors on the COLLATERAL to make and
deliver payment to BANK;
(b) receive, endorse, collect by legal proceedings or otherwise, and
demand payment directly from the makers, drawers, acceptors, issuers
and/or obligors of the COLLATERAL and receipt for all sums and amounts
now or hereafter payable on or with respect to the COLLATERAL;
provided that all such sums so paid to and received by BANK shall be
applied on the INDEBTEDNESS as provided herein;
(c) from time to time extend the time of payment, arrange for payment in
installments or otherwise modify the terms of or enter into any other
agreement in any wise relating to or affecting the COLLATERAL, and in
connection therewith may deposit or surrender control of any security
held therefor, accept other property in exchange for any security held
therefor and take such action as it may deem proper, and any money or
property received in exchange for any security held therefor shall be
applied on the INDEBTEDNESS or thereafter held by BANK pursuant to the
provisions hereof;
(d) make any compromise or settlement BANK deems desirable with respect
the the COLLATERAL;
(e) insure, process and preserve the COLLATERAL;
(f) exercise and enforce all of the other rights, powers and remedies of
the holder and owner of the COLLATERAL and the liens, if any, securing
the payment thereof, including (but not by way of limitation) the
right to demand payment of the COLLATERAL in the event of any default
thereunder and provided further that BANK is and shall be fully
subrogated to all rights and liens existing unto and in favor of PLEDGOR
under the provisions of the instrument or instruments securing the
COLLATERAL and in the event of default in the payment or performance
of COLLATERAL, or default or failure in the performance of any of the
covenants or agreements contained in said instruments, or any one of
them, BANK shall be entitled to foreclose said rights and liens and
have the properties covered by said instruments sold, in whole or in
part, in the manner and under the terms and conditions provided in
said instruments. The proceeds from any and all such sales shall be
applied to the payment of the INDEBTEDNESS as herein provided, and any
excess shall be paid to PLEDGOR or deposited to the account of
PLEDGOR, with BANK;
(g) transfer to or register in the name of BANK or any nominee of BANK
any of the COLLATERAL, and whether or not so transferred or
registered, to receive the income, interest and/or dividends
thereon, including cash and (in the case of interests in corporations)
stock dividends, stock splits and rights to subscribe, and to hold the
same as part of the COLLATERAL and/or apply the same as hereinafter
provided, but BANK may not exercise voting rights or direct the voting
of the SECURITIES until after the INDEBTEDNESS becomes due and payable
as specified in paragraph 17, and to exchange any of the COLLATERAL
for other property upon reorganization, recapitalization or other
readjustment and in connection therewith to deposit any of the
COLLATERAL with any committee or depository upon such terms as the
BANK may determine; all without notice and without liability except
to account for property actually received by BANK; and
(h) demand, xxx for, collect, receive, receipt for, compound and give
acquittance for any and all amounts, money or property at any time
payable or receivable on account of or in exchange for, any of the
COLLATERAL,
provided, however, BANK shall be under no obligation or duty to exercise
any of the powers hereby conferred upon it and shall be without liability
for any act or failure to act in connection with the collection of, or the
preservation of any rights under, any COLLATERAL.
17. At the option of BANK and without necessity of demand or notice, all or
any part of the INDEBTEDNESS shall immediately become due and payable
irrespective of any agreed maturity or period of grace (provided, however,
such consideration that constitutes interest under applicable law may
never include more than the maximum amount allowed by applicable law, and
excess interest, if any, shall be automatically cancelled as of the date
of such acceleration and if theretofore paid, shall be credited on the
INDEBTEDNESS) and/or any obligation of BANK for further financial
accommodation shall terminate upon the happening of any of the following
events:
(a) any breach of this Security Agreement or any other agreement between
BANK and PLEDGOR or any other party primarily or secondarily liable
for all or any part of the INDEBTEDNESS (herein collectively and
individually called "OTHER LIABLE PARTY");
(b) default in the payment of any of the INDEBTEDNESS when due;
(c) any deterioration, impairment or decline in character or value of any
part of the COLLATERAL or any other collateral subject to a security
interest in favor of BANK as security for the INDEBTEDNESS (whether
actual or reasonably anticipated) that causes the COLLATERAL or any
such other COLLATERAL in the judgement of BANK to become unsatisfactory
as to character or value;
(d) the entry of a judgment, issuance of an injunction or order of
attachment, or any other process against PLEDGOR, or any of the
COLLATERAL, or OTHER LIABLE PARTY;
(e) the application for the appointment of, or the appointment of, a
receiver, trustee, liquidator, conservator, rehabilitator, or similar
individual, officer or committee of, or for any property of, PLEDGOR or
OTHER LIABLE PARTY;
(f) the death, incapacity, insolvency, dissolution, commission of an act
of bankruptcy, assignment for the benefit of creditors, calling of a
meeting of any creditors, appointment of a committee of any creditors
or a liquidating agent, offering to or receiving from any creditors a
composition or extension of any of the indebtedness of any of them,
making a bulk transfer, granting a security interest in any property,
the whole or partial suspension, discontinuance or liquidation of
usual business or failure in business of or by PLEDGOR or OTHER LIABLE
PARTY, including the imminent or threatened occurrence of any of the
foregoing events;
(g) the commencement of any proceeding, suit or action under any
provisions of the Bankruptcy Code, as amended, or any similar statute,
for adjudication as a bankrupt, reorganization, composition,
extension, arrangement, wage earner's plan, receivership, liquidation
or dissolution by or against PLEDGOR or OTHER LIABLE PARTY;
(h) the admission in writing by PLEDGOR or OTHER LIABLE PARTY of
inability to pay its debts as they become due;
(i) failure of the PLEDGOR, OTHER LIABLE PARTY or the COLLATERAL to
comply with Regulations U or X of the Board of Governors of the
Federal Reserve System, as amended;
(j) failure by PLEDGOR or OTHER LIABLE PARTY, after demand, to furnish any
financial information to BANK or to permit BANK to inspect books or
records of account, making any misrepresentation to BANK for the
purpose of obtaining credit, failure to pay when due any obligations,
failure to pay any tax or failure to withhold, collect or remit any
tax or tax deficiency when assessed or due;
(k) failure by PLEDGOR, upon demand from BANK to furnish such further
COLLATERAL or make such payment on account of the INDEBTEDNESS as
will be satisfactory to BANK; or
(l) if in the reasonable exercise of its judgement, BANK determines that
the financial responsibility of PLEDGOR or OTHER LIABLE PARTY has
become otherwise unsatisfactory.
18. If all or any part of the INDEBTEDNESS shall become due and payable as
specified in paragraph 17, BANK may then, or at any time thereafter, apply,
set-off, collect, sell in one or more sales, lease, or otherwise dispose of,
any or all of the COLLATERAL, in its then condition or following any
commercially reasonable preparation or processing, in such order as BANK may
elect, and any such sale may be made either at public or private sale at its
place of business or elsewhere, or at any brokers' board or securities
exchange, either for cash or upon credit or for future delivery, at such
price as BANK may deem fair, and BANK may be the purchaser of any or all
COLLATERAL so sold and may hold the same thereafter in its own right free
from any claim of PLEDGOR or right of redemption. No such purchase or
holding by BANK shall be deemed a retention by BANK in satisfaction of the
INDEBTEDNESS. All demands, notices and advertisements, and the presentment
of property at sale are hereby waived. If, notwithstanding the foregoing
provisions, any applicable provision of the Uniform Commercial Code or other
law requires BANK to give reasonable notice of any such sale or disposition
or other action, five days' prior written notice shall constitute reasonable
notice. BANK may require PLEDGOR to assemble the COLLATERAL and make it
available to BANK at a place designated by BANK in Xxxxxxx County, Nebraska
which is reasonably convenient to BANK and PLEDGOR. Any sale hereunder may
be conducted by an auctioneer or any officer or agent of BANK.
19. Prior to all or any part of the INDEBTEDNESS becoming due and payable as
specified in paragraph 17, all cash sums paid to and received by BANK
on account of the COLLATERAL shall be promptly applied by BANK on the
INDEBTEDNESS whether or not such INDEBTEDNESS shall have by its terms
matured, such application to be made first to interest and then to
principal or exclusively to principal as BANK may determine; provided,
however, BANK need not apply or give credit for any item included in
such sums until BANK has received final payment thereof at its banking
quarters or solvent credits accepted as such by BANK. After all or any
part of the INDEBTEDNESS becomes due and payable as specified in paragraph
17, the proceeds of any sale or other disposition of the COLLATERAL and
all sums received or collected by BANK from or on account of the
COLLATERAL the shall be applied by BANK in the manner set forth in
Section 9.504 of the Nebraska Uniform Commercial Code as presently in
effect. PLEDGOR shall remain liable to BANK for any INDEBTEDNESS,
advances, costs, charges and expenses, together with interest thereon
remaining unpaid and shall pay the same immediately to BANK at BANK's
banking quarters.
20. BANK shall be under no duty whatsoever to make or give any presentment,
demand for performance, notice of nonperformance, protest, notice of
protest, notice of dishonor, or other notice or demand in connection with
any COLLATERAL or the INDEBTEDNESS, or to take any steps necessary to
preserve any rights against prior parties. BANK shall not be liable for
failure to collect or realize upon any or all of the INDEBTEDNESS or
COLLATERAL, or for any delay in so doing, nor shall BANK be under any duty
to take any action whatsoever with regard thereto. BANK shall use
reasonable care in the custody and preservation of any COLLATERAL in its
possession but need not take any steps to keep the COLLATERAL
identifiable. BANK shall have no duty to comply with any recording,
filing, or other legal requirements necessary to establish or maintain the
validity, priority or enforceability of, or BANK's rights in or to, any
of the COLLATERAL.
21. PLEDGOR waives any right to require BANK to proceed against any person,
exhaust any COLLATERAL or pursue any other remedy in BANK's power; waives
any and all notice of acceptance of this Security Agreement or of
creation, modification, renewal or extension for any period of any of the
INDEBTEDNESS from time to time; and waives any defense arising by reason of
any disability or other defense of any OTHER LIABLE PARTY, or by reason of
the cessation from any cause whatsoever of the liability of any OTHER
LIABLE PARTY. All dealings between PLEDGOR and BANK, whether or not
resulting in the creation of INDEBTEDNESS, shall conclusively be presumed
to have been had or consummated in reliance upon this Security Agreement.
Until all the INDEBTEDNESS shall have been paid in full, PLEDGOR shall
have no right to subrogation, and PLEDGOR waives any right to enforce any
remedy which BANK now has or may hereafter have against PLEDGOR or OTHER
LIABLE PARTY and waives any benefit of and any right to participate in
any COLLATERAL or security whatsoever now or hereafter held by BANK.
PLEDGOR authorizes BANK, without notice or demand and without any
reservation of rights against PLEDGOR and without affecting PLEDGOR's
liability hereunder or on the INDEBTEDNESS, from time to time to (a)
renew, extend for any period, accelerate, modify, compromise, settle or
release the obligation of PLEDGOR or any OTHER LIABLE PARTY with respect
to any or all of the INDEBTEDNESS or COLLATERAL, (b) take and hold any
other property as collateral, other than the COLLATERAL, for the payment
of any or all of the INDEBTEDNESS, and exchange, enforce, waive and
release any or all of the COLLATERAL or such other property; (c) apply the
COLLATERAL or such other property and direct the order or manner of sale
thereof as BANK in its discretion may determine; and (d) release or
substitute PLEDGOR or any OTHER LIABLE PARTY.
22. BANK may transfer any or all of the INDEBTEDNESS, and upon any such
transfer BANK may transfer any or all of the COLLATERAL and shall be fully
discharged thereafter from all liability with respect to the COLLATERAL
so transferred, and the transferee shall be vested with all rights, powers
and remedies of BANK hereunder with respect to COLLATERAL so transferred;
but with respect to any COLLATERAL not so transferred BANK shall retain
all rights, powers and remedies hereby given. BANK may at any time deliver
any or all of the COLLATERAL to PLEDGOR whose receipt shall be a complete
and full acquittance for the COLLATERAL so delivered, and BANK shall
thereafter be discharged from any liability therefor.
23. The execution and delivery of this Security Agreement in no manner shall
impair or affect any other security (by endorsement or otherwise) for the
payment of the INDEBTEDNESS. No security taken hereafter as security for
payment of the INDEBTEDNESS shall impair in any manner or affect this
Security Agreement. All such present and future additional security is
to be considered as cumulative security.
24. This is a continuing agreement and the conveyance hereunder shall remain
in full force and effect and all the rights, powers and remedies of BANK
hereunder shall continue to exist until the INDEBTEDNESS is paid in full
as the same becomes due and payable; until BANK has no further
obligation to advance monies to PLEDGOR, or any OTHER LIABLE PARTY; and
until BANK, upon request of PLEDGOR has executed a written termination
statement, reassigned to PLEDGOR without recourse, the COLLATERAL and all
rights and liens conveyed hereby and returned possession of the COLLATERAL
to PLEDGOR. Furthermore, it is contemplated by the parties hereto that
there may be times when no INDEBTEDNESS is owing; but notwithstanding such
occurrence, this Security Agreement shall remain valid and shall be in
full force and effect as to subsequent INDEBTEDNESS provided that BANK has
not executed a written termination statement and returned possession of
the COLLATERAL to PLEDGOR. Otherwise this Security Agreement shall
continue irrespective of the fact that the liability of OTHER LIABLE
PARTY may have ceased, and notwithstanding the death or incapacity of
PLEDGOR or the death, incapacity or bankruptcy of OTHER LIABLE PARTY, or
any other event or proceeding affecting PLEDGOR and/or OTHER LIABLE PARTY.
25. The rights, powers and remedies of BANK hereunder shall be in addition to
all rights, powers and remedies given by statute or rule of law and are
cumulative. The exercise of any one or more of the rights, powers and
remedies provided herein shall not be construed as a waiver of any other
rights, powers and remedies of BANK. Furthermore, regardless of whether
or not the Uniform Commercial Code is in effect in the jurisdiction where
such rights, powers and remedies are asserted, BANK shall have the rights,
powers and remedies of a secured party under the Nebraska Uniform
Commercial Code, as amended. BANK may exercise its bankers' lien or right
of set-off with respect to the INDEBTEDNESS in the same manner as if the
INDEBTEDNESS were unsecured. Time shall be of the essence for the
performance of any act under this Security Agreement or the INDEBTEDNESS by
PLEDGOR or OTHER LIABLE PARTY, but neither BANK's acceptance of partial or
delinquent payments nor any forbearance, failure or delay by BANK in
exercising any right, power or remedy shall be deemed a waiver of any
obligation of PLEDGOR or OTHER LIABLE PARTY or of any right, power or
remedy of BANK or preclude any other or further exercise thereof; and
no single or partial exercise of any right, power or remedy shall preclude
any other or further exercise thereof, or the exercise of any other right,
power or remedy.
26. BANK may remedy any default and may waive any default without waiving the
default remedied or waiving any prior or subsequent default.
GENERAL.
27. The term "PLEDGOR", as used throughout this Security Agreement shall
(regardless of use of the singular form) mean PLEDGOR individually and/or
collectively and shall include the respective successors, legal
representatives, heirs and assigns of PLEDGOR. The obligations and
agreements of PLEDGOR hereunder are joint and several. The PLEDGOR is and
shall be deemed to be a "Debtor" within the meaning of that term as
defined in the Uniform Commercial Code.
28. Neither this Security Agreement nor the exercise by BANK of (or the
failure to so exercise) any right, power or remedy conferred herein or by
law shall be construed as relieving any person liable on the INDEBTEDNESS
from full liability on the INDEBTEDNESS and for any deficiency thereon.
29. Any notice or demand to PLEDGOR under this Security Agreement or in
connection with the Security Agreement may be given and shall conclusively
be deemed and considered to have been given and received upon the deposit
thereof, in writing, duly stamped and addressed to PLEDGOR at the address
of PLEDGOR appearing on the records of the BANK, in the U.S. Mail, but
actual notice, however given or received, shall always be effective.
30. This Security Agreement has been made in and the conveyance, assignment,
transfer and delivery has been made in and the security interest granted
hereby is granted in and each shall be governed by the laws of the State
of Nebraska in all respects, including matters of construction, validity,
enforcement and performance. This Security Agreement may not be amended
(nor may any of its terms be waived) except in writing duly signed by an
authorized officer of BANK and by PLEDGOR. Except as the context may
otherwise require, any term used herein that is defined in the
Nebraska Uniform Commercial Code shall have the meaning given therein.
If any provision of this Security Agreement is rendered or declared
illegal or unenforceable by reason of any existing or subsequently
enacted legislation or by a judicial decision which shall have become
final, PLEDGOR and BANK shall promptly meet and negotiate substitute
provisions for those rendered illegal or unenforceable, but all of the
remaining provisions shall remain in full force and effect.
31. The covenants, representations, warranties and agreements herein set forth
shall be binding upon PLEDGOR and shall inure to the benefit of BANK, its
successors and assigns.
33. BANK MAY ENFORCE ITS RIGHTS HEREUNDER WITHOUT PRIOR JUDICIAL PROCESS OR
JUDICIAL HEARING, AND PLEDGOR EXPRESSLY WAIVES, RENOUNCES AND KNOWINGLY
RELINQUISHES ANY AND ALL LEGAL RIGHTS WHICH MIGHT OTHERWISE REQUIRE BANK
TO ENFORCE ITS RIGHTS BY JUDICIAL PROCESS. IN SO PROVIDING FOR NONJUDICIAL
REMEDIES, PLEDGOR RECOGNIZES AND CONCEDES THAT SUCH REMEDIES ARE
CONSISTENT WITH THE USAGE OF THE TRADE, ARE RESPONSIVE TO COMMERCIAL
NECESSITY, AND ARE THE RESULT OF BARGAIN AT ARM'S LENGTH. NOTHING HEREIN
IS INTENDED TO PREVENT BANK OR PLEDGOR FROM RESORTING TO JUDICIAL PROCESS
AT EITHER PARTY'S OPTION.
IN WITNESS WHEREOF the PLEDGOR has executed this Agreement this the 24th
day of April, 1992 in Omaha, Nebraska.
PLEDGOR: TRANSTERRA CO.
By: /s/ Xxxx Xxx Xxxxxxxx
-----------------------------------
Title: Chairman/President
Address:
000 X. 00xx Xxxxxx
Xxxxx, XX 00000
