COMMERCIAL SECURITY AGREEMENT
|
Principal
$4,500,000.00
|
Loan
Date
12-16-
2008
|
Maturity
04-30-
2009
|
Loan
No
70290
|
Call/Coll
|
Account
0000128524-01
|
Officer
322
|
Initials
|
|
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.
|
|||||||
|
Borrower:
|
ARTS-WAY
MANUFACTURING COMPANY, INC.
|
Lender:
|
WEST
BANK
|
||
|
(TIN: 00-0000000)
|
MAIN
BANK
|
||||
|
0000
XXXXXXX 0 XXXX, BOX 288
|
0000
00XX XXXXXX
|
||||
|
ARMSTRONG,
IA 00000
|
XXXX
XXX XXXXXX, XX
|
||||
|
50265
|
|||||
|
(000)
000-0000
|
|||||
|
Grantor:
|
ARTS-WAY
VESSELS, INC. (TIN: 00-0000000)
|
||||
|
0000
XXXXXXXXXX
|
|||||
|
DUBUQUE,
IA 52001
|
THIS
COMMERCIAL SECURITY AGREEMENT dated December 16, 2008, is made and executed
among ARTS-WAY VESSELS, INC. Canute); ARTS-WAY MANUFACTURING COMPANY,
INC. (Borrower”); and WEST BANK (“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
inventory, equipment, accounts (including but not limited to all
health-care-insurance receivables), chattel paper, instruments (including but
not limited to all promissory notes), letter-of-credit rights, letters of
credit, documents, deposit accounts, Investment property, money, other rights to
payment and performance, and general intangibles (including but not limited to
all software and all payment intangibles); all oil, gas and other minerals
before extraction; all oil, gas, other minerals and accounts constituting
as-extracted collateral; all fixtures; all timber to be cut; all attachments,
accessions, accessories, fittings, increases, tools, parts, repairs, supplies,
and commingled goods relating to the foregoing property, and all additions,
replacements of and substitutions for all or any part of the foregoing property;
all insurance refunds relating to the foregoing property; all good will relating
to the foregoing property; all records and data and embedded software relating
to the foregoing property, and all equipment, inventory and software to utilize,
create, maintain and process any such records and data on electronic media; mid
all supporting obligations relating to the foregoing property; all whether now
existing or hereafter arising, whether now owned or hereafter acquired or
whether now or hereafter subject to any rights in the foregoing property; and
all products and proceeds (including but not limited to all insurance payments)
of or relating to the foregoing property.
- 1
-
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, tools, parts, supplies, 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
otter 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.
FUTURE ADVANCES. In
addition to the Note, this Agreement secures all future advances made by Xxxxxx
to Borrower regardless of whether the advances are made a) pursuant to a
commitment or b) for the same purposes.
XXXXXXXX’S WAIVERS AND
RESPONSIBIUTIES. Except as otherwise required under this
Agreement or by applicable law, (A) Borrower agrees that Lender need not tell
Borrower about any action or inaction Lender takes in connection with this
Agreement (B) Borrower assumes the responsibility for being and keeping Informed
about the Collateral; and (C) Borrower waives any defenses that may arise
because of any action or inaction of Lender, Including without limitation any
failure of Lender to realize upon the Collateral or any delay by Lender in
realizing upon the Collateral; and Xxxxxxxx agrees to remain liable under the
Note no matter what action Lender takes or fails to take under this
Agreement.
GRANTOR’S REPRESENTATIONS AND
WARRANTIES. Grantor warrants that (A) this Agreement is
executed at Borrower’s request and not at the request of Xxxxxx; (B) Grantor has
the full right, power and authority to enter into this Agreement and to pledge
the Collateral to Lender; (C) Grantor has established adequate means of
obtaining from Borrower on a continuing basis Information about Borrower’s
financial condition; and (D) Xxxxxx has made no representation to Grantor about
Borrower or Xxxxxxxx’s creditworthiness.
- 2
-
GRANTOR’S
WAIVERS. Grantor waives all requirements of presentment,
protest, demand, and notice of dishonor or non-payment to Borrower or Grantor,
or any other party to the Indebtedness or the Collateral. Lender may
do any of the following with respect to any obligation of any Borrower, without
first obtaining the consent of Grantor; (A) grant any extension of time for any
payment, (B) grant any renewal, (C) permit any modification of payment terms or
other terms, or (D) exchange or release any Collateral or other
security. No such act or failure to act shall affect Lender’s rights
against Grantor or the Collateral.
RIGHT OF SETOFF. To
the extent permitted by applicable law, Lender reserves a right of setoff in all
Grantor’s accounts with Lender (whether checking, savings, or some other
account). This includes all accounts Grantor holds jointly with
someone else and all accounts Grantor may open in the
future. However, this does not include any IRA or Xxxxx accounts, or
any trust accounts for which setoff would be prohibited by
law. Grantor authorizes Xxxxxx, to the extent permitted by applicable
law, to charge or setoff all sums owing on the indebtedness against any and all
such accounts, and, at Xxxxxx’s option, to administratively freeze all such
accounts to allow Lender to protect Xxxxxx’s charge and setoff rights provided
in this Paragraph.
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 Borrower may not be indebted to Lender.
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 to time) prior to any (1) change In Grantor’s name; (2) change in
Grantor’s assumed business name(s): (3) change in the management 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 raw 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.
- 3
-
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. At the time
any account becomes subject to a security interest in favor of Xxxxxx, the
account shall be a good and valid account representing an undisputed, bona fide
indebtedness incurred by the account debtor, for merchandise held subject to
delivery instructions or previously shipped or delivered pursuant to a contract
of sale, or for services previously performed by Grantor with or for the account
debtor. So long as this Agreement remains In effect Grantor shall
not, without Xxxxxx’s prior written consent, compromise, settle, adjust, or
extend payment under or with regard to any such Accounts. 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 Grantors
business, Xxxxxxx agrees to keep the Collateral (or to the extent the Collateral
consists of intangible property such as accounts or general intangibles, the
records concerning the Collateral) at Grantor’s address shown above or at such
other locations as are acceptable to Lender. Upon Lender’s request,
Grantor red 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, including the sales of inventory, Grantor shall not remove the
Collateral from its existing location without Lender’s prior written consent To
the extent that the Collateral consists of vehicles, or other titled property,
Grantor shall not take or permit any action which would require application for
certificates of title for the vehicles outside the State of Iowa, 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. While Grantor is not in default under this
Agreement, Grantor may sell inventory, but arty in the ordinary course of its
business and only to buyers who qualify as a buyer in the ordinary course of
business. A sale in the ordinary course of Xxxxxxx’s business does
not Include a transfer in partial or total satisfaction of a debt or any bulk
sale. 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 deposition 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.
- 4
-
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. The liens granted hereby are not the type of
lien referred to in Chapter 575 of the Iowa Code Supplement, as now enacted or
hereafter modified, amended or replaced. Grantor, for itself and all
persons claiming by, through or under Xxxxxxx, agrees that it claims no lien or
right to a lien of the type contemplated by Chapter 575 or any other chapter of
the Code of Iowa and further waives all notices and rights pursuant to said law
with respect to the liens hereby granted, and represents and warrants that it is
the sole party entitled to do so and agrees to indemnify, defend, and hold
harmless Lender from any loss, damage, and costs, including reasonable attorney
fees, threatened or suffered by Xxxxxx xxxxxxx either directly or indirectly as
a result of any claim of the applicability of said law to the liens hereby
granted. No financing statement covering any of the Collateral is on
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, end to cause
others to keep and maintain, the Collateral in good order, repair
.. and condition at all times while this Agreement remains In effect
Grantor 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 Lender 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
contest the obligation to pay and so long as Xxxxxx’s interest in the Collateral
is not jeopardized.
- 5
-
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 thirty (30) 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 Lender’s interest in the Collateral.
- 6
-
Application of Insurance
Proceeds. Grantor shall promptly notify Lender of any loss or
damage to the Collateral, 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 pert 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. My 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 Xxxxxx to file a UCC financing
statement, or alternatively, a copy of this Agreement to perfect Xxxxxx’s
security interest At Xxxxxx’s request, Grantor additionally agrees to sign all
other documents that are necessary to perfect, protect, and continue Xxxxxx’s
security Interest in the Property. This includes making sure Xxxxxx
is shown as the first and only security Interest holder on the title covering
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.
- 7
-
XXXXXXX’S RIGHT TO POSSESSION AND TO
COLLECT ACCOUNTS. Until default and except as otherwise
provided below with respect to accounts, 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. Until otherwise notified by Xxxxxx, Grantor may collect
any of the Collateral consisting of accounts. At any time and even
though no Event of Default exists, Lender may exercise its rights to collect the
accounts and to notify account debtors to make payments directly to Lender for
application to the Indebtedness. 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 Xxxxxx’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 lime 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.
DEFAULT. Each of
the following shall constitute an Event of Default under this
Agreement:
Payment
Default. Borrower fails to make any payment when due under the
Indebtedness.
Other
Defaults. Borrower or 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 b perform any
term, obligation, covenant or condition contained in any other agreement between
Lender and Borrower or Grantor.
- 8
-
Default in Favor of Third
Parties. Borrower 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 Borrower’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 Borrower or Grantor or on Borrower’s or 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 arty
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 Borrower’s or Grantor’s existence as a going
business, the insolvency of Borrower or Grantor, the appointment of a receiver
for any part of Xxxxxxxx’s or 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 taws by or against Borrower or
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 Borrower or Grantor or by any governmental
agency against any collateral securing the Indebtedness. This
includes a garnishment of any of Borrower’s or Grantor’s accounts, including
deposit accounts, with Lender. However, this Event of Default shall
not apply If there is a good faith dispute by Borrower or Grantor as to the
validity or reasonableness of the claim which is the basis of the creditor or
forfeiture proceeding and if Borrower or Grantor gives Lender 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, endorser, surety, or accommodation party of any of the
Indebtedness or guarantor, endorser, surety, or accommodation party 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 Borrowers or Grantor’s financial condition, or
Xxxxxx believes the prospect of payment or performance of the Indebtedness is
Impaired.
Insecurity. Lender
in good faith believes itself insecure.
- 9
-
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 receiving
written notice from Lender demanding cure of such default (1) cures the default
within twenty (20) days; or (2) if the cure requires more than twenty (20) 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 Iowa 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 Xxxxxxxx would be required to pay,
immediately due and payable, without notice of any kind to Borrower or
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 art 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 safe 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, arid 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.
- 10
-
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 Lenders 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 Borrower for any deficiency
remaining on the Indebtedness due to Lender after application of at amounts
received from the exercise of the rights provided In this Agreement Borrower
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.
- 11
-
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
conversance purposes only and are not to be used to interpret or define the
provisions of this Agreement.
Governing Law. 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 Iowa without
regard to its conflicts of law provisions. This Agreement has been
accepted by Lender In the State of Iowa.
Choice of Venue. If
there is a lawsuit, Xxxxxxx agrees upon Xxxxxx’s request to submit to the
jurisdiction of the courts of POLK County, State of Iowa.
Joint and Several
Liability. All obligations of Borrower and Grantor under this
Agreement shall be joint and several, and all references to Grantor ‘shall mean
each and every Grantor, and all references to Borrower shall mean each and every
Borrower. This means that each Borrower and Grantor signing below is
responsible for all obligations in this Agreement Where any one or more of the
parties is a corporation, partnership, limited liability company or similar
entity, it Ls not necessary for Lender to inquire into the powers of any of the
officers, directors, partners, members, or other agents acting or purporting to
act on the entity’s behalf, and any obligations made or created in reliance upon
the professed exercise of such powers shall be guaranteed under this
Agreement.
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 past of Lender in exercising any
right shall operate as a waiver of such tight 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
Lender, 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.
- 12
-
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 Ness, 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, Se 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 Borrower’s Indebtedness shall be paid in
full.
Time Is of the
Essence. Time is of the essence In the performance of this
Agreement.
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:
- 13
-
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 ARTS-WAY MANUFACTURING COMPANY, 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 ARTS-WAY VESSELS, INC..
Guaranty. The word
‘Guaranty’ means the guaranty from guarantor, endorser, surety, or accommodation
party 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.
- 14
-
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 Borrower is responsible under this
Agreement or under any of the Related Documents. Specifically,
without limitation, Indebtedness includes the future advances set forth in the
Future Advances provision of this Agreement together with all Interest
thereon.
Lender. The word
“Lender means WEST BANK, its successors and assigns.
Note. The word
‘Note” means the Note executed by ART’S-WAY MANUFACTURING COMPANY,
INC. in the principal amount of $4,500,000.00 dated December 16,
2008, together with all renewals of, extensions of, modifications of,
refinancings of, consolidations of, and substitutions for the note or credit
agreement.
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.
XXXXXXXX
AND GRANTOR HAVE READ AND UNDERSTOOD ALL THE PROVISIONS OF THIS COMMERCIAL
SECURITY AGREEMENT AND AGREE TO ITS TERMS. THIS AGREEMENT IS DATED
DECEMBER 16, 2008.
GRANTOR
ACKNOWLEDGES RECEIPT OF A COMPLETED COPY OF THIS COMMERCIAL SECURITY AGREEMENT
AND ALL OTHER DOCUMENTS RELATING TO THIS DEBT.
- 15
-
|
ART’S-WAY
VESSELS, INC.
|
|
|
By:
|
COPY
|
|
XXXXXX
X XXXXXXX, PRESIDENT of
|
|
|
ART’S-WAY
VESSELS, INC.
|
|
|
BORROWER:
|
|
|
ART’S-WAY
MANUFACTURING COMPANY, INC.
|
|
|
By:
|
COPY
|
|
XXXXXX X XXXXXXX, PRESIDENT of
|
|
|
ARTS-WAY MANUFACTURING COMPANY, INC.
|
|
- 16
-
