NOTICE
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"), AS A COMMERCIAL LOAN NOT CONSTITUTING A SECURITY OR IN
RELIANCE ON AN EXEMPTION PROVIDED IN THE ACT AND/OR RULES AND REGULATIONS
PROMULGATED BY THE SECURITIES AND EXCHANGE COMMISSION, AND MAY NOT BE SOLD,
TRANSFERRED, ASSIGNED, OR OTHERWISE DISPOSED OF BY ANY PAYEE, OR HOLDER THEREIN
UNLESS THE NOTE IS REGISTERED UNDER THE ACT OF THE MAKER RECEIVES AN OPINION OF
COUNSEL ACCEPTABLE TO IT THAT SUCH REGISTRATION IS NOT REQUIRED, AND THEN ONLY
IN COMPLIANCE WITH STATE SECURITIES LAWS. IN ADDITION, THE NOTE HAS NOT BEEN
REGISTERED UNDER THE COLORADO SECURITIES ACT OF 1990 BY REASON OF THE COMMERCIAL
LOAN NOT CONSTITUTING A SECURITY OR SPECIFIC EXEMPTIONS THEREUNDER RELATING TO
THE LIMITED AVAILABILITY OF THE NOTE. THE NOTE CANNOT BE SOLD, TRANSFERRED,
ASSIGNED OR OTHERWISE DISPOSED OF TO ANY PERSON OF ENTITY UNLESS SUBSEQUENTLY
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE COLORADO
SECURITIES ACT OF 1990, IF SUCH REGISTRATION IS REQUIRED. FURTHER, THE NOTE HAS
NOT BEEN REVIEWED APPROVED OR DISAPPROVED BY THE SECRETARY OF STATE, OR OTHER
SIMILAR GOVERNMENTAL OFFICE, OF ANY OTHER STATE.
PROMISSORY NOTE
(Commercial Loan)
$515,077.12 January 31, 1996
FOR VALUE RECEIVED, the undersigned promises to pay to WESTERN FRATERNAL
LIFE ASSOCIATION (individually referred to as "Holder") at the address for
Holder shown in the Notice provision hereof, or as such other address as any
Holder may from time to time designate in writing in accordance with the Notice
provision, in the legal and lawful tender of the United States, the principal
sum of FIVE HUNDRED FIFTHTEEN THOUSAND SEVENTY SEVEN AND 12/100'S DOLLARS
($515,077,12), together with interest which shall accrue at the rate of nine and
eighty five one hundredths percent (9.85%) per annum payable on the terms set
forth in paragraph I hereof.
I. Terms of Repayment. The principal shall be amortized over fifty (50)
months with interest at the rate of nine and eighty five one hundredths percent
(9.85%) per annum resulting in monthly payments of principal and interest in the
amount of TWELVE THOUSAND SIX HUNDRED ONE AND 34/100-S DOLLARS ($12,601.34). An
amortization schedule is attached hereto as Exhibit A and incorporated herein by
this reference. Said monthly payments shall commence on the twentieth day of
February, 1996 and on the twentieth day of each month thereafter until this Note
is paid in full. The first monthly payment shall be adjusted to reflect only
that interest due in arrears from the date the principal is advanced by Holder
to Maker. The last monthly payment shall be adjusted to reflect any prepayments
or principal reductions during the term of this Note. Payments shall be due on
the twentieth day of each month and shall be considered delinquent on the
thirtieth day of each month.
2. Application of Payment. All payments of principal and interest by Maker
to the Holder of this Note shall be first applied to accrued interest with the
balance applied to principal.
3. Security. This Note shall be secured by Maker's Security Agreement and
Pledge Agreement which pledges retail installment sale contracts entered into
between various customers and the Maker for the purchase of automobiles, more
particularly described in the Security Agreement and Pledge Agreement (the
"Contracts" or "Collateral"). Maker shall continue to service and collect the
payments on said Contracts in accordance with their terms from the life of the
Contracts, Maker covenants and agrees that the outstanding principal balance
plus accrued interest payable over the life of said Contracts in monthly
payments from customers shall be equal to or greater than principal and interest
payable to Holder under this Note, which payments due under the Contracts are to
be pledged by Maker as security for this Note.
4. Substitution of Collateral. Maker agrees in the event any individual
retail installment contract contained in the Contracts is prepaid by a customer,
prepaid from insurance proceeds in the event of destruction of any automobile
which is security for any retail installment sale contract or becomes sixty (60)
days or more past due (the "Substitution Events"), Maker will substitute a
similar retail installment contract to be replaced. The Security Agreement and
Pledge Agreement which secure this Note shall continue to apply to any
substituted retail installment contract which replaces any retail installment
contract previously included in the Contracts or Collateral.
5. Release of Collateral. As the principal balance of this Note is repaid
(including prepayments), the Holder agrees to release that portion of the
Collateral from the Security Agreement and Pledge Agreement which secures this
Note as corresponds to the reduction of the principal balance and accrued
interest due under this Note. For each one dollar reduction in the principal and
accrued interest due under this Note, a proportionate amount of Collateral shall
be released from the Security Agreement and Pledge Agreement and shall
thereafter be free of the lien and encumbrance created thereunder. In no event
shall the amount of principal and interest remaining on the Contracts
constituting the Collateral be less than the amount of principal and interest
outstanding on the Note.
6. No Sale, Transfer or Assignment. This Note constitutes a non-negotiable
instrument and shall not be sold, transferred or assigned without the consent of
Maker and without meeting the possible securities registration requirement set
forth in the NOTICE contained above.
7. Miscellaneous.
(a) There shall be no acceleration of any amount due under this Note,
except as specifically provided in this Note,
(b) Upon payment of monies due on this Note, in accordance with its
terms, Holder shall release the collateral or the applicable portion thereof in
accordance with the terms of the Security Agreement and Pledge Agreement.
(c) In the event of a default by Maker on this Note, Holder shall look
solely to the assets of Maker for repayment, including the property, cash and
other property or assets of Maker, but none of the officers, directors, or
shareholders shall have any personal liability for payment hereunder, and no
such action or other legal proceedings shall be brought against any of the
officers, directors or shareholders of Maker, for any deficiency if the
Collateral and assets of Maker are not sufficient to satisfy the repayment of
this Note.
(d) If Maker fails to make any Payment when due hereunder, whether of
principal, interest or otherwise, or commits any default hereunder or under the
Security Agreement, Pledge Agreement or any other instrument related hereto, the
Holder shall have those options set forth in the Security Agreement and Pledge
Agreement after ten (10) days notice to Maker specifying the event of default
after which time this Note shall bear interest at the rate of twelve percent
(12%) per annum, unless the default is timely cured. During the ten (1 0) days
following notice from Holder, the Maker shall have the right to cure any
monetary or non-monetary default and if the cure be made, this Note and the
security therefore shall continue in full force and effect as if no default had
occurred.
(e) This Note sets forth the entire understanding of the parties
hereto with respect to the subject matter hereof and shall not be changed,
modified, or terminated except by a written instrument, duly executed by all
parties hereto. No waiver of any term or condition herein by any party hereto
shall be effective unless such waiver shall be expressed in a written instrument
duly executed by the party or parties against whom enforcement of such waiver is
sought.
(f) Any un-enforceability for any reason against any person or persons
or in any particular circumstance of any provision of the Note shall not limit
or impair the operation or validity or any other provision of this Note and
shall not limit or impair the operation and validity of the same provision or
provisions against any other person or persons or in any other particular
circumstance.
(g) It is the intention of Maker and Holder that this Note be
construed tin accordance with and governed by the laws of the State of Colorado
for contracts entered into and wholly performed in such state.
(h) The Maker and all other parties who are now or who may hereafter
become liable on this Note severally waive, except as expressly set forth
herein, demand, presentment for payment, protest, notice of dishonor, protest or
intent to accelerate and acceleration and diligence in collecting and bringing
suit against any party liable on this Note.
(i) Holder shall be entitled to collect a reasonable attorney's fee
from the Maker, as well as other costs and expenses reasonably incurred, in
curing any default of or attempting collection of the payment due under the Note
and to receive from the Maker (or in lieu thereof, the Maker may advance) all
expenses paid by the Holder under the terms of the Security Agreement.
(i) This Note is secured by a Security Agreement and Pledge Agreement
Of even date made by Maker for the benefit of the Holder hereof and the terms
and provisions of said Security Agreement and Pledge Agreement by this reference
are make a part hereof,
(k) All actions or proceedings in any way, manner or respect, arising
from or related to this Note may be litigated in Courts having situs within the
State of Colorado. Maker and Holder hereby consent and submit to the
jurisdiction of any local, state or federal court located in said state. Each
party hereby waives any right it may have to transfer or change of venue of any
litigation in accordance herewith.
(1) Each party hereto waives any right to a trial by jury in any
action or proceeding to enforce or defend any rights (i) under this Note or any
amendment, instrument, document or agreement delivered or which may in the
future be delivered in connection herewith, or (ii) arising from any
relationship existing in connection with this Note, and agree that any such
action or proceeding shall be tried before a court and not before a jury.
(m) Legal matters in connection with the Note and any Security
Agreement, Pledge Agreement or other documents securing the Note have been
prepared or reviewed on behalf of the Maker as its counsel by Xxxxx X. Xxxxxxx
("Maker's Counsel"). Maker's Counsel does not purport to have made any
investigation or to have acted independently on behalf of any payee, holder, or
assignee of any note or any secured party and has relied upon representations
made by Western Fidelity Funding, Inc. as to all matters which affect the Note
or any security agreement or pledge agreement must look to its own counsel in
connection with the commercial loan represented by the Note or any collateral
therefore and understand that Xxxxx X. Xxxxxxx has acted only as Maker's
Counsel.
(n) All notices, requests and other communications hereunder shall be
given in writing and shall be deemed sufficiently given, served, or received for
all purposes when delivered personally, by United States mail, postage prepaid,
return receipt requested, by express courier, or by immediate notice, and
properly addressed as follows, or to such other address as shall be set forth in
a notice given in accordance with this sub-section n
(a) in the case of Holder to:
Western Fraternal Life Association
0000 Xxxxx Xxxxxx XX
Xxxxx Xxxxxx, Xxxx 00000
Attention: Xx. Xxxxxx X. Xxxxxxxxxx
Telephone # (000)000-0000
(b) in the case of Maker to:
Western Fidelity Funding, Inc.
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000-7417
Attention: Xx. Xxxx Xxxxxx, President
Telephone #: (000) 000-0000
Telefax # (000) 000-0000
IN WITNESS WHEREOF, the Maker has caused this instrument to be executed this the
31day of January, 1996
MAKER: WESTERN FIDELITY FUNDING, INC. a Colorado
corporation
By:
------------------------------------
Xxxx X. Xxxxxx, President
PLEDGE AGREEMENT
This pledge is made as of this 31st day of January, 1996 by WESTERN
FIDELITY FUNDING, INC. (hereinafter referred to as "WFFI"), to WESTERN FRATERNAL
LIFE ASSOCIATION (hereinafter referred to as "Lender").
RECITALS
WHEREAS WFFI has acquired and is the owner of the automobile installment
sale contracts ("Contracts") listed on Exhibit A attached hereto and
incorporated herein by this reference, and
WHEREAS Lender requires the right to collect payments made by the maker(s)
of the Contracts, and the right to enforce all of WFFI's rights, claims and
interests related to said Contracts, (including but not limited to the right to
repossess the auto(s) which are the subject of the Contracts herein pledged).
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, WFFI and Xxxxxx agree as follows:
1. The Contracts are hereby pledged to Lenders to secure payment of
Xxxxxx's loan to WFFI evidenced by a Promissory Note dated January 31, 1996 in
the amount of $515,077.12.
2. In accordance with the terms of the Promissory Note which is secured by
this Pledge Agreement, WFFI agrees that in the event any individual retail
installment contract contained in the Contracts is prepaid by a customer,
prepaid from insurance proceeds in the event of destruction of any automobile
which is security for any retail installment sale contract or becomes sixty (60)
days or more past due (the "Substitution Events"), WFFI will substitute a
similar retail installment contract in substantially like amount and terms for
the retail installment contract to be replaced. This Pledge Agreement shall
continue to apply to any substitute retail installment sale contract which
replaces any retail installment sale contract previously included in the
Contracts pledged hereunder.
3. XXXX agrees to notify Xxxxxx promptly of any material changes involving
the Contracts, including, but not limited to, prompt notice of any Substitution
Event or any other proceeding which WFF] may be notified of which may materially
and adversely affects WFFI's or Lender's rights under the terms and conditions
of the Contracts or to the collateral encumbered by said Contracts.
4. As the principal balance of the Note secured hereby is repaid, the
Lender agrees to release that portion of the Contracts from this Pledge
Agreement as corresponds to the reduction or the principal balance and accrued
interest due under the Note for each one dollar reduction in the principal and
accrued interest due under the Note, a proportionate amount of Contracts shall
be released from this Pledge Agreement and shall thereafter be free of the lien
or pledge created hereunder. In no event shall the amount of principal and
interest remaining on the Contracts pledged hereunder be less that the amount of
principal and interest outstanding on the Note.
5. This Pledge Agreement shall terminate when the obligation has been paid
in full. No waiver by the Lenders of any default shall be effective unless in
writing nor operate as a waiver of any other default or of the same default on a
future occasion. All rights of the Lender hereunder shall inure to the benefit
of its successors and bind the successors and assigns of the WFFI, This Pledge
Agreement shall take effect when signed by the parties hereto.
6. XXXX agrees to pay any and all of Xxxxxx's costs, including reasonable
attorney's fees, incurred in exercising or enforcing its rights under this
Pledge Agreement.
7. All notices, requests and other communications hereunder shall be given
in writing and shall be deemed sufficiently given, served, or received for all
purposes when delivered personally, by United States mail, postage prepaid,
return receipt requested, by express courier, or by Immediate Notice, and
properly addressed as follows, or to such other address as shall be set forth in
a notice given in accordance with this Section 7.
(a) in the case of Holder to
Western Fraternal Life Association
0000 Xxxxx Xxxxxx XX
Xxxxx Xxxxxx, Xxxx 00000
Attention: Xx. Xxxxxx X. Xxxxxxxxx
Telephone #: (000)000-0000
(b) in the case of Maker to:
Western Fidelity Funding, Inc.
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000-7417
Attention: Xx. Xxxx Xxxxxx, President
Telephone #: (000) 000-0000
Telefax # (000) 000-0000
8. Miscellaneous.
(a) This Pledge Agreement sets forth the entire understanding of the
parties hereto with respect to the subject matter hereof and shall not be
changed, modified, or terminated except by a written instrument, duly executed
by all parties hereto. No waiver of any term or condition herein by any party
hereto shall be effective unless such waiver shall be expressed in a written
instrument duly executed by the party or parties against whom enforcement of
such waiver is sought.
(b) Any un-enforceability for any reason against any person or persons
or in any particular circumstance of any provision of this Pledge Agreement
shall not limit or impair the operation of validity of any other provision of
this Pledge Agreement and shall not limit or impair the operation and validity
of the same provision or provisions against any other person or persons or in
any other particular circumstances.
(c) Should any provision of this Pledge Agreement violate any federal,
state or local law or ordinance, that provision shall be deemed amended to so
comply with such law or ordinance, and shall be construed in a manner so as to
comply.
(d) This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective heirs, executors, administrators, legal
representatives, successors, and permitted assigns.
(e) This Agreement shall be deemed entered into within Colorado and
shall be governed by and interpreted in accordance with the laws of the State of
Colorado (without giving effect to principles relating to conflicts of laws).
(f) Legal matters in connection with the Note(s) and any security
agreement, Pledge Agreement or other documents securing the Note(s) have been
prepared or reviewed on behalf of WFFI as its counsel by Xxxxx X. Xxxxxxx
("WFFI's Counsel"). XXXX's Counsel does not purport to have made any
investigation or to have acted independently on behalf of any payee, holder, or
assignee of any note or any secured party or pledgee and has relied upon
representations made by XXXX as to all matters which affect the Note(s) or any
collateral security therefore. Each payee, holder, assignee, pledgee or secured
party of the Note(s) or any security agreement or Pledge Agreement must look to
its own counsel in connection with any loan represented by the Note(s) or any
collateral therefore and understand that Xxxxx X. Xxxxxxx has acted only as
XXXX's Counsel.
(g) All actions or proceedings in any way, manner or respect, arising
from or related to this Agreement may be litigated in courts having situs within
the State of Colorado. WFFI and Lender hereby consent and submit to the
jurisdiction of any local, state or federal court located in said state. Each
party hereby waives any right it may have to transfer or change of venue of any
litigation in accordance herewith.
(h) Each party hereto waives any right to a trial by jury in any
action or proceeding to enforce or defend any rights (i) under this Agreement or
any amendment, instrument, document or agreement delivered or which may in the
future be delivered in connection herewith, or (ii) arising from any
relationship existing in connection with this Agreement, and agree that any such
action or proceeding shall be tried before a court and not before a jury.
(i) This Agreement may be executed in any number of counterparts, and
each such counterpart shall be deemed to any original and all such counterparts
shall constitute but one and the same instrument. Facsimile signatures shall be
considered as original signatures.
Dated this 31st day of January, 1996.
WESTERN FIDELITY FUNDING, INC.
By: /s/ Xxxx X. Xxxxxx
------------------------------------
Xxxx X. Xxxxxx, President
WESTERN FRATERNAL LIFE ASSOCIATION
By: /s/ Xxxxxx X. Xxxxxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
----------------------------------
Its: Vice President
----------------------------------
SECURITY AGREEMENT
This Agreement entered into between WESTERN FIDELITY FUNDING, INC., a
Colorado corporation ("Debtor") and WESTERN FRATERNAL LIFE ASSOCIATION (the
"Secured Party"), The Debtor hereby warrants and covenants that:
Section 1.0 Collateral. The Debtor is the beneficial owner of the
"Collateral" which consists of the retail installment sale contracts entered
into between the customer and the Debtor (the "Contracts"). The Contracts which
comprise the Collateral are listed on Exhibit A attached hereto and incorporated
herein by this reference. The Collateral will be maintained by the Debtor at its
principal office and Debtor will service the collection of the Contracts. Except
for the security interest granted hereby, the collateral will be free from any
prior lien, security interest, pledge or encumbrance, and the Debtor will defend
the Collateral against all claims and demands of all persons at any time
claiming the same or any interest therein.
Section 2.0 No Transfer. The Debtor will not sell or otherwise transfer or
encumber the Collateral or any interest therein without the prior written
consent of the Secured Party,
Section 3.0 Perfection of Interest. The Debtor will immediately notify the
Secured Party in writing of any change in address from that shown in this
Agreement and will also upon demand furnish to the Secured Party such further
information and will execute and deliver to the Secured Party such financing
statements, mortgages and other papers and will do all such acts and things as
the Secured Party may at any time or from time to time reasonably request and/or
as may be necessary or appropriate to establish and maintain a valid security
interest in the Collateral as security for the obligations, subject to no prior
liens or encumbrances.
Section 4.0 Insurance. The Debtor will keep the Collateral at all times
insured against risks of loss and such other casualties as the Secured Party may
reasonably require, all in such amounts, under such forms of policies, including
the Indemnity Policy currently issued by Empire Fire & Marine, upon such terms,
for such periods and written by such other companies or underwriters as the
Secured Party may approve, but in no event less than the face value of the loan
on the Vehicle, losses in all cases to be payable to the Secured Party and
Debtor as their respective interests may appear. All policies of insurance shall
provide for at least ten days prior written notice cancellation to the Secured
Party, and the Debtor shall furnish the Secured Party with certificates of such
insurance or other evidence satisfactory to the Secured Party as to compliance
with the provisions of this paragraph. The Secured Party may act as attorney for
the Debtor in making, adjusting and settling claims under or canceling such
insurance and endorsing the Debtors name on any drafts drawn by insurers of the
Collateral.
Section 5.0 Free of Liens. The Debtor will keep the Collateral free from
any adverse lien, security interest, pledge or encumbrance and will not waste or
destroy the Collateral or any part thereof and will not use the Collateral in
violation of any applicable statute, ordinance or policy of insurance thereon.
Upon reasonable notice, the Secured Party may examine and inspect the books and
records of Debtor at any reasonable time or times.
Section 6.0 Substitution of Collateral. In accordance with the terms of the
Promissory Note which is secured by this Security Agreement, Debtor agrees that
in the event any individual retail installment contract contained in the
Contracts is prepaid by a customer, prepaid from insurance proceeds in the event
of destruction of any automobile which is security for any retail installment
sale contract or becomes sixty (60) days or more past due (the "Substitution
Events"), Debtor will substitute a similar retail installment contract in
substantially like amount and terms for the retail installment contract to be
replaced. This Security Agreement shall continue to apply to any substituted
retail installment contract which replaces any retail installment sale contract
previously included in the Contracts listed as collateral hereunder.
Section 7.0 Notice of Matters Affecting Collateral. Xxxxxx agrees to notify
secured party promptly of any material changes involving the Contracts,
including, but not limited to, prompt notice of any Substitution Event or any
other proceeding which Debtor may be notified of which may materially and
adversely affect Debtor' s or Xxxxxx's rights under the terms and conditions of
the Contracts or to the collateral encumbered by said Contracts.
Section 8.0 Taxes. The Debtor will pay promptly when due all taxes and
assessments upon the Collateral, if any.
Section 9.0 Additional Rights of Parties. At its option but without
obligation to do so, the Secured party may (a) discharge taxes, liens, security
interests or other encumbrances at any time levied or placed on the Collateral;
(b) place and pay for insurance on Collateral in the event Debtor fails to keep
the Collateral insured.
Section 10.0 Events of Default-Remedies. Upon the happening of any of the
following events or conditions and within ten day notice thereof, namely; (a)
default in the payment or performance of any of the obligations or of any
covenant contained or referred to herein or in any note evidencing any of the
obligations; (b) any warranty, representation or statement make or furnished to
the Secured Party by or on behalf of the Debtor in connection with this
Agreement proving to have been false in material respect when made or furnished,
(c) substantial amount of sale or encumbrance of the Collateral as determined in
the sale or encumbrance of the Collateral as determined in the reasonable
discretion of the Secured Party, or the making of any levy, seizure or
attachment thereof or thereon, (d) death, dissolution, termination of existence,
insolvency, business failure, appointment of a receiver of any part of the
Collateral of, assignment for the benefit of creditors by, or the commencement
of any proceedings under any bankruptcy or insolvency laws by, against or of
Debtor or any guarantor or surety for the Debtor, thereupon or at any time
thereafter (such default not having previously been cured), the Secured Party at
its option may declare all obligations that are in default to be immediately due
and payable, subject to any notice required by law or agreement, and shall then
have the remedies of a secured party under the Uniform Commercial Code ("UCC"),
or other applicable law, including, without limitation thereto, the right to
take possession of the Collateral, and for that purpose may pursue the
Collateral whenever the same may be found and with or without legal process, but
without a breach of the peace, may enter any premises where the Collateral may
be found and take possession thereof and remove the same.
Section 11.0 No Waste. The Secured Party may require the Debtor to make the
Collateral available to the Secured Party at a place to be designated by the
Secured Party which is reasonably convenient to both parties. The Secured Party
will give at least ten (10) days written notice to Debtor at the address shown
herein of the time and place of any public sale thereof or of the time after
which any private sale or any other intended disposition thereof is to be made.
Expenses of retaking, holding. preparing for sale, selling or the like shall,
subject to UCC limits if applicable, include the Secured Party's reasonable
attorney's fees and costs.
Section 12.0 Release of Collateral. As the principal balance of the Note
secured hereby is repaid, the Secured Party agrees to release that portion of
the Collateral from this Security Agreement as corresponds to the reduction of
the principal balance and accrued interest due under the Note. For each one
dollar reduction in the principal and accrued interest due under the Note, a
proportionate amount of Collateral shall be released from this Security
Agreement and shall thereafter be free of the lien and encumbrance created
hereunder. In no event shall the amount of principal and interest remaining on
the contracts constituting the Collateral be less than the amount of principal
and interest outstanding on the Note.
Section 13.0 General. This Agreement and the security interest in the
Collateral created hereby shall terminate when the obligation has been paid in
full. No waiver by the Secured Party of any default shall be effective unless in
writing nor operate as a waiver of any other default or of the same default on a
future occasion. All rights of the Secured Party hereunder shall inure to the
benefit of its successors and bind the successors and assigns of the Debtor. If
there be more than one Debtor, their obligations hereunder shall be joint and
several. This Agreement shall take effect when signed by the parties hereto.
Section 14.0 Construction. Should any provision of this Agreement violate
any federal, state or local law or ordinance, that provision shall be construed
in a manner so as to comply.
Section 15.0 Notices. All notices, requests and other communications
hereunder shall be given in writing and shall be deemed sufficiently given,
served, or received for all purposes when delivered personally, by United States
mail, postage prepaid, return receipt requested, by express courier, or by
Immediate Notice, and properly addressed as follows, or to such other address as
shall be set forth in a notice given in accordance with this Section 15.0.
(a) in the case of Holder to:
Western Fraternal Life Association
0000 Xxxxx Xxxxxx XX
Xxxxx Xxxxxx, Xxxx 00000
Attention: Xx. Xxxxxx X. Xxxxxxxxxx
Telephone #: (000)000-0000
(b) in the case of Maker to:
Western Fidelity Funding, Inc.
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000-7417
Attention: Xx. Xxxx Xxxxxx, President
Telephone # (000) 000-0000
Telefax #: (000) 000-0000
Section 16.0 Miscellaneous.
(a) This Security Agreement sets forth the entire understanding of the
parties hereto with respect to the subject matter hereof and shall not be
changed, modified, or terminated except by a written instrument, duly executed
by all parties hereto. No waiver of any term or condition herein by any party
hereto shall be effective unless such waiver shall be expressed in a written
instrument duly executed by the party or parties against whom enforcement of
such waiver is sought.
(b) Any un-enforceability for any reason against any person or persons
or in any particular circumstance of any provision of this Security Agreement
shall not limit or impair the operation of validity of any other provision of
this Security Agreement and shall not limit or impair the operation and validity
of the same provision or provisions against any other person or persons or in
any other particular circumstances.
(c) This Security Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective heirs, executors,
administrators, legal representatives, successors, and permitted assigns.
(d) This Agreement shall be deemed entered into within Colorado and
Shall be governed by and interpreted in accordance with the laws of the State of
Colorado (without giving effect to principles relating to conflicts of laws).
(e) Legal matters in connection with the Note(s) and any security
agreement, pledge or other documents securing the Note(s) have been prepared or
reviewed on behalf of the debtor as its counsel by Xxxxx X. Xxxxxxx ("Debtor's
Counsel"). Xxxxxx's Counsel does not purport to have made any investigation or
to have acted independently on behalf of any payee, holder, or assignee of any
note or any secured party and has relied upon representations made by Western
Fidelity Funding, Inc., as to all matters which affect the Note(s) or any
collateral security therefore. Each payee, holder, assignee or secured party of
the Note(s) or any security agreement or pledge agreement must look to its own
counsel in connection with any loan represented by the Note(s) or any collateral
therefore and understand that Xxxxx X. Xxxxxxx has acted only as Xxxxxx's
Counsel.
If) All actions or proceedings in any way, manner or respect, arising
from or related to this Security Agreement may be litigated in courts having
situs within the State of Colorado. Debtor and Secured Party hereby consent and
Submit to the jurisdiction of any local, state or federal court located in said
state. Each party hereby waives any right it may have to transfer or change of
venue of any litigation in accordance herewith.
(g) Each party hereto waives any right to a trial by jury in any
action or proceeding to enforce or defend any rights (i) under this Security
Agreement or any amendment, instrument, document or agreement delivered or which
may in the future be delivered in connection herewith, or (ii) arising from any
relationship existing in connection with this Agreement, and agree that any such
action or proceeding shall be tried before a court and not before a jury.
(h) This Agreement may be executed in any number of counterparts, and
each such counterpart shall be deemed to an original and all such counterparts
shall constitute but one and the same instrument. Facsimile signatures shall be
considered as original signatures,
Dated this 31st day of January, 1996.
DEBTOR: SECURED PARTY:
WESTERN FIDELITY FUNDING, INC. WESTERN FRATERNAL LIFE ASSOCIATION
By: /s/ Xxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxxx
------------------------------------- -------------------------------
Xxxx X.Xxxxxx, President
Name: Xxxxxx X. Xxxxxxxxxx
----------------------------
Its: Vice President
-----------------------------
NOTICE
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"), AS A COMMERCIAL LOAN NOT CONSTITUTING A SECURITY OR IN
RELIANCE ON AN EXEMPTION PROVIDED IN THE ACT AND/OR RULES AND REGULATIONS
PROMULGATED BY THE SECURITIES AND EXCHANGE COMMISSION, AND MAY NOT BE SOLD,
TRANSFERRED, ASSIGNED, OR OTHERWISE DISPOSED OF BY ANY PAYEE, OR HOLDER THEREIN
UNLESS THE NOTE IS REGISTERED UNDER THE ACT OF THE MAKER RECEIVES AN OPINION OF
COUNSEL ACCEPTABLE TO IT THAT SUCH REGISTRATION IS NOT REQUIRED, AND THEN ONLY
IN COMPLIANCE WITH STATE SECURITIES LAWS. IN ADDITION, THE NOTE HAS NOT BEEN
REGISTERED UNDER THE COLORADO SECURITIES ACT OF 1990 BY REASON OF THE COMMERCIAL
LOAN NOT CONSTITUTING A SECURITY OR SPECIFIC EXEMPTIONS THEREUNDER RELATING TO
THE LIMITED AVAILABILITY OF THE NOTE. THE NOTE CANNOT BE SOLD, TRANSFERRED,
ASSIGNED OR OTHERWISE DISPOSED OF TO ANY PERSON OF ENTITY UNLESS SUBSEQUENTLY
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE COLORADO
SECURITIES ACT OF 1990, IF SUCH REGISTRATION IS REQUIRED. FURTHER, THE NOTE HAS
NOT BEEN REVIEWED APPROVED OR DISAPPROVED BY THE SECRETARY OF STATE, OR OTHER
SIMILAR GOVERNMENTAL OFFICE, OF ANY OTHER STATE.
PROMISSORY NOTE
(Commercial Loan)
$508,145.79 February 12, 1996
FOR VALUE RECEIVED, the undersigned promises to pay to WESTERN FRATERNAL
LIFE ASSOCIATION (individually referred to as "Holder") at the address for
Holder shown in the Notice provision hereof, or as such other address as any
Holder may from time to time designate in writing in accordance with the Notice
provision, in the legal and lawful tender of the United States, the principal
sum of FIVE HUNDRED EIGHT ONE HUNDRED FORTY FIVE AND 79/100'S DOLLARS
($508,145.79), together with interest which shall accrue at the rate of nine and
eighty five one hundredths percent (9.85%) per annum payable on the terms set
forth in paragraph I hereof.
I. Terms of Repayment. The principal shall be amortized over forty eight
(48) months with interest at the rate of nine and eighty five one hundredths
percent (9.85%) per annum resulting in monthly payments of principal and
interest in the amount of TWELVE THOUSAND EIGHT HUNDRED FIFTY ONE AND 32/100'S
DOLLARS ($12,851.32). An amortization schedule is attached hereto as Exhibit A
and incorporated herein by this reference. Said monthly payments shall commence
on the twentieth day of March, 1996 and on the twentieth day of each month
thereafter until this Note is paid in full. The first monthly payment shall be
adjusted to reflect only that interest due in arrears from the date the
principal is advanced by Holder to Maker. The last monthly payment shall be
adjusted to reflect any prepayments or principal reductions during the term of
this Note. Payments shall be due on the twentieth day of each month and shall be
considered delinquent on the thirtieth day of each month.
2. Application of Payment. All payments of principal and interest by Maker
to the Holder of this Note shall be first applied to accrued interest with the
balance applied to principal.
3. Security. This Note shall be secured by Maker's Security Agreement and
Pledge Agreement which pledges retail installment sale contracts entered into
between various customers and the Maker for the purchase of automobiles, more
particularly described in the Security Agreement and Pledge Agreement (the
"Contracts" or "Collateral"). Maker shall continue to service and collect the
payments on said Contracts in accordance with their terms from the life of the
Contracts, Maker covenants and agrees that the outstanding principal balance
plus accrued interest payable over the life of said Contracts in monthly
payments from customers shall be equal to or greater than principal and interest
payable to Holder under this Note, which payments due under the Contracts are to
be pledged by Maker as security for this Note.
4. Substitution of Collateral. Maker agrees in the event any individual
retail installment contract contained in the Contracts is prepaid by a customer,
prepaid from insurance proceeds in the event of destruction of any automobile
which is security for any retail installment sale contract or becomes sixty (60)
days or more past due (the "Substitution Events"), Maker will substitute a
similar retail installment contract to be replaced. The Security Agreement and
Pledge Agreement which secure this Note shall continue to apply to any
substituted retail installment contract which replaces any retail installment
contract previously included in the Contracts or Collateral.
5. Release of Collateral. As the principal balance of this Note is repaid
(including prepayments), the Holder agrees to release that portion of the
Collateral from the Security Agreement and Pledge Agreement which secures this
Note as corresponds to the reduction of the principal balance and accrued
interest due under this Note. For each one dollar reduction in the principal and
accrued interest due under this Note, a proportionate amount of Collateral shall
be released from the Security Agreement and Pledge Agreement and shall
thereafter be free of the lien and encumbrance created thereunder. In no event
shall the amount of principal and interest remaining on the Contracts
constituting the Collateral be less than the amount of principal and interest
outstanding on the Note.
6. No Sale, Transfer or Assignment. This Note constitutes a non-negotiable
instrument and shall not be sold, transferred or assigned without the consent of
Maker and without meeting the possible securities registration requirement set
forth in the NOTICE contained above.
7. Miscellaneous.
(a) There shall be no acceleration of any amount due under this Note,
except as specifically provided in this Note,
(b) Upon payment of monies due on this Note, in accordance with its
terms, Holder shall release the collateral or the applicable portion thereof in
accordance with the terms of the Security Agreement and Pledge Agreement.
(c) In the event of a default by Maker on this Note, Holder shall look
solely to the assets of Maker for repayment, including the property, cash and
other property or assets of Maker, but none of the officers, directors, or
shareholders shall have any personal liability for payment hereunder, and no
such action or other legal proceedings shall be brought against any of the
officers, directors or shareholders of Maker, for any deficiency if the
Collateral and assets of Maker are not sufficient to satisfy the repayment of
this Note.
(d) If Maker fails to make any Payment when due hereunder, whether of
principal, interest or otherwise, or commits any default hereunder or under the
Security Agreement, Pledge Agreement or any other instrument related hereto, the
Holder shall have those options set forth in the Security Agreement and Pledge
Agreement after ten (10) days notice to Maker specifying the event of default
after which time this Note shall bear interest at the rate of twelve percent
(12%) per annum, unless the default is timely cured. During the ten (10) days
following notice from Holder, the Maker shall have the right to cure any
monetary or non-monetary default and if the cure be made, this Note and the
security therefore shall continue in full force and effect as if no default had
occurred.
(e) This Note sets forth the entire understanding of the parties
hereto with respect to the subject matter hereof and shall not be changed,
modified, or terminated except by a written instrument, duly executed by all
parties hereto. No waiver of any term or condition herein by any party hereto
shall be effective unless such waiver shall be expressed in a written instrument
duly executed by the party or parties against whom enforcement of such waiver is
sought.
(f) Any un-enforceability for any reason against any person or persons
or in any particular circumstance of any provision of the Note shall not limit
or impair the operation or validity or any other provision of this Note and
shall not limit or impair the operation and validity of the same provision or
provisions against any other person or persons or in any other particular
circumstance.
(g) It is the intention of Maker and Holder that this Note be
construed tin accordance with and governed by the laws of the State of Colorado
for contracts entered into and wholly performed in such state.
(h) The Maker and all other parties who are now or who may hereafter
become liable on this Note severally waive, except as expressly set forth
herein, demand, presentment for payment, protest, notice of dishonor, protest or
intent to accelerate and acceleration and diligence in collecting and bringing
suit against any party liable on this Note.
(i) Holder shall be entitled to collect a reasonable attorney's fee
from the Maker, as well as other costs and expenses reasonably incurred, in
curing any default of or attempting collection of the payment due under the Note
and to receive from the Maker (or in lieu thereof, the Maker may advance) all
expenses paid by the Holder under the terms of the Security Agreement.
(i) This Note is secured by a Security Agreement and Pledge Agreement
Of even date made by Maker for the benefit of the Holder hereof and the terms
and provisions of said Security Agreement and Pledge Agreement by this reference
are make a part hereof,
(k) All actions or proceedings in any way, manner or respect, arising
from or related to this Note may be litigated in Courts having situs within the
State of Colorado. Maker and Holder hereby consent and submit to the
jurisdiction of any local, state or federal court located in said state. Each
party hereby waives any right it may have to transfer or change of venue of any
litigation in accordance herewith.
(1) Each party hereto waives any right to a trial by jury in any
action or proceeding to enforce or defend any rights (i) under this Note or any
amendment, instrument, document or agreement delivered or which may in the
future be delivered in connection herewith, or (ii) arising from any
relationship existing in connection with this Note, and agree that any such
action or proceeding shall be tried before a court and not before a jury.
(m) Legal matters in connection with the Note and any Security
Agreement, Pledge Agreement or other documents securing the Note have been
prepared or reviewed on behalf of the Maker as its counsel by Xxxxx X. Xxxxxxx
("Maker's Counsel"). Maker's Counsel does not purport to have made any
investigation or to have acted independently on behalf of any payee, holder, or
assignee of any note or any secured party and has relied upon representations
made by Western Fidelity Funding, Inc. as to all matters which affect the Note
or any security agreement or pledge agreement must look to its own counsel in
connection with the commercial loan represented by the Note or any collateral
therefore and understand that Xxxxx X. Xxxxxxx has acted only as Maker's
Counsel.
(n) All notices, requests and other communications hereunder shall be
given in writing and shall be deemed sufficiently given, served, or received for
all purposes when delivered personally, by United States mail, postage prepaid,
return receipt requested, by express courier, or by immediate notice, and
properly addressed as follows, or to such other address as shall be set forth in
a notice given in accordance with this sub-section n
(a) in the case of Holder to:
Western Fraternal Life Association
0000 Xxxxx Xxxxxx XX
Xxxxx Xxxxxx, Xxxx 00000
Attention: Xx. Xxxxxx X. Xxxxxxxxxx
Telephone # (000)000-0000
(b) in the case of Maker to:
Western Fidelity Funding, Inc.
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000-7417
Attention: Xx. Xxxx Xxxxxx, President
Telephone #: (000) 000-0000
Telefax # (000) 000-0000
IN WITNESS WHEREOF, the Maker has caused this instrument to be executed this the
12th day of February, 1996
MAKER: WESTERN FIDELITY FUNDING, INC. a Colorado
corporation
By: /s/ Xxxx X. Xxxxxx
------------------------------------
Xxxx X. Xxxxxx, President
PLEDGE AGREEMENT
This pledge is made as of this 12th day of February, 1996 by WESTERN
FIDELITY FUNDING, INC. (hereinafter referred to as "WFFI"), to WESTERN FRATERNAL
LIFE ASSOCIATION (hereinafter referred to as "Lender").
RECITALS
WHEREAS WFFI has acquired and is the owner of the automobile installment
sale contracts ("Contracts") listed on Exhibit A attached hereto and
incorporated herein by this reference, and
WHEREAS Lender requires the right to collect payments made by the maker(s)
of the Contracts, and the right to enforce all of WFFI's rights, claims and
interests related to said Contracts, (including but not limited to the right to
repossess the auto(s) which are the subject of the Contracts herein pledged).
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, WFFI and Xxxxxx agree as follows:
1. The Contracts are hereby pledged to Lenders to secure payment of
Xxxxxx's loan to WFFI evidenced by a Promissory Note dated February 12, 1996 in
the amount of $508,145.79.
2. In accordance with the terms of the Promissory Note which is secured by
this Pledge Agreement, WFFI agrees that in the event any individual retail
installment contract contained in the Contracts is prepaid by a customer,
prepaid from insurance proceeds in the event of destruction of any automobile
which is security for any retail installment sale contract or becomes sixty (60)
days or more past due (the "Substitution Events"), WFFI will substitute a
similar retail installment contract in substantially like amount and terms for
the retail installment contract to be replaced. This Pledge Agreement shall
continue to apply to any substitute retail installment sale contract which
replaces any retail installment sale contract previously included in the
Contracts pledged hereunder.
3. XXXX agrees to notify Xxxxxx promptly of any material changes involving
the Contracts, including, but not limited to, prompt notice of any Substitution
Event or any other proceeding which WFF] may be notified of which may materially
and adversely affects WFFI's or Lender's rights under the terms and conditions
of the Contracts or to the collateral encumbered by said Contracts.
4. As the principal balance of the Note secured hereby is repaid, the
Lender agrees to release that portion of the Contracts from this Pledge
Agreement as corresponds to the reduction or the principal balance and accrued
interest due under the Note for each one dollar reduction in the principal and
accrued interest due under the Note, a proportionate amount of Contracts shall
be released from this Pledge Agreement and shall thereafter be free of the lien
or pledge created hereunder. In no event shall the amount of principal and
interest remaining on the Contracts pledged hereunder be less that the amount of
principal and interest outstanding on the Note.
5. This Pledge Agreement shall terminate when the obligation has been paid
in full. No waiver by the Lenders of any default shall be effective unless in
writing nor operate as a waiver of any other default or of the same default on a
future occasion. All rights of the Lender hereunder shall inure to the benefit
of its successors and bind the successors and assigns of the WFFI, This Pledge
Agreement shall take effect when signed by the parties hereto.
6. XXXX agrees to pay any and all of Xxxxxx's costs, including reasonable
attorney's fees, incurred in exercising or enforcing its rights under this
Pledge Agreement.
7. All notices, requests and other communications hereunder shall be given
in writing and shall be deemed sufficiently given, served, or received for all
purposes when delivered personally, by United States mail, postage prepaid,
return receipt requested, by express courier, or by Immediate Notice, and
properly addressed as follows, or to such other address as shall be set forth in
a notice given in accordance with this Section 7.
(a) in the case of Holder to
Western Fraternal Life Association
0000 Xxxxx Xxxxxx XX
Xxxxx Xxxxxx, Xxxx 00000
Attention: Xx. Xxxxxx X. Xxxxxxxxx
Telephone #: (000)000-0000
(b) in the case of Maker to:
Western Fidelity Funding, Inc.
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000-7417
Attention: Xx. Xxxx Xxxxxx, President
Telephone #: (000) 000-0000
Telefax # (000) 000-0000
8. Miscellaneous.
(a) This Pledge Agreement sets forth the entire understanding of the
parties hereto with respect to the subject matter hereof and shall not be
changed, modified, or terminated except by a written instrument, duly executed
by all parties hereto. No waiver of any term or condition herein by any party
hereto shall be effective unless such waiver shall be expressed in a written
instrument duly executed by the party or parties against whom enforcement of
such waiver is sought.
(b) Any un-enforceability for any reason against any person or persons
or in any particular circumstance of any provision of this Pledge Agreement
shall not limit or impair the operation of validity of any other provision of
this Pledge Agreement and shall not limit or impair the operation and validity
of the same provision or provisions against any other person or persons or in
any other particular circumstances.
(c) Should any provision of this Pledge Agreement violate any federal,
state or local law or ordinance, that provision shall be deemed amended to so
comply with such law or ordinance, and shall be construed in a manner so as to
comply.
(d) This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective heirs, executors, administrators, legal
representatives, successors, and permitted assigns.
(e) This Agreement shall be deemed entered into within Colorado and
shall be governed by and interpreted in accordance with the laws of the State of
Colorado (without giving effect to principles relating to conflicts of laws).
(f) Legal matters in connection with the Note(s) and any security
agreement, Pledge Agreement or other documents securing the Note(s) have been
prepared or reviewed on behalf of WFFI as its counsel by Xxxxx X. Xxxxxxx
("WFFI's Counsel"). XXXX's Counsel does not purport to have made any
investigation or to have acted independently on behalf of any payee, holder, or
assignee of any note or any secured party or pledgee and has relied upon
representations made by XXXX as to all matters which affect the Note(s) or any
collateral security therefore. Each payee, holder, assignee, pledgee or secured
party of the Note(s) or any security agreement or Pledge Agreement must look to
its own counsel in connection with any loan represented by the Note(s) or any
collateral therefore and understand that Xxxxx X. Xxxxxxx has acted only as
XXXX's Counsel.
(g) All actions or proceedings in any way, manner or respect, arising
from or related to this Agreement may be litigated in courts having situs within
the State of Colorado. WFFI and Lender hereby consent and submit to the
jurisdiction of any local, state or federal court located in said state. Each
party hereby waives any right it may have to transfer or change of venue of any
litigation in accordance herewith.
(h) Each party hereto waives any right to a trial by jury in any
action or proceeding to enforce or defend any rights (i) under this Agreement or
any amendment, instrument, document or agreement delivered or which may in the
future be delivered in connection herewith, or (ii) arising from any
relationship existing in connection with this Agreement, and agree that any such
action or proceeding shall be tried before a court and not before a jury.
(i) This Agreement may be executed in any number of counterparts, and
each such counterpart shall be deemed to any original and all such counterparts
shall constitute but one and the same instrument. Facsimile signatures shall be
considered as original signatures.
Dated this 12th day of February, 1996.
WESTERN FIDELITY FUNDING, INC.
By: /s/ Xxxx X. Xxxxxx
-----------------------------------------
Xxxx X. Xxxxxx, President
WESTERN FRATERNAL LIFE ASSOCIATION
By: /s/ Xxxxxx X. Xxxxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
--------------------------------------
Its: Vice President
--------------------------------------
SECURITY AGREEMENT
This Agreement entered into between WESTERN FIDELITY FUNDING, INC., a
Colorado corporation ("Debtor") and WESTERN FRATERNAL LIFE ASSOCIATION (the
"Secured Party"), The Debtor hereby warrants and covenants that:
Section 1.0 Collateral. The Debtor is the beneficial owner of the
"Collateral" which consists of the retail installment sale contracts entered
into between the customer and the Debtor (the "Contracts"). The Contracts which
comprise the Collateral are listed on Exhibit A attached hereto and incorporated
herein by this reference. The Collateral will be maintained by the Debtor at its
principal office and Debtor will service the collection of the Contracts. Except
for the security interest granted hereby, the collateral will be free from any
prior lien, security interest, pledge or encumbrance, and the Debtor will defend
the Collateral against all claims and demands of all persons at any time
claiming the same or any interest therein.
Section 2.0 No Transfer. The Debtor will not sell or otherwise transfer or
encumber the Collateral or any interest therein without the prior written
consent of the Secured Party,
Section 3.0 Perfection of Interest. The Debtor will immediately notify the
Secured Party in writing of any change in address from that shown in this
Agreement and will also upon demand furnish to the Secured Party such further
information and will execute and deliver to the Secured Party such financing
statements, mortgages and other papers and will do all such acts and things as
the Secured Party may at any time or from time to time reasonably request and/or
as may be necessary or appropriate to establish and maintain a valid security
interest in the Collateral as security for the obligations, subject to no prior
liens or encumbrances.
Section 4.0 Insurance. The Debtor will keep the Collateral at all times
insured against risks of loss and such other casualties as the Secured Party may
reasonably require, all in such amounts, under such forms of policies, including
the Indemnity Policy currently issued by Empire Fire & Marine, upon such terms,
for such periods and written by such other companies or underwriters as the
Secured Party may approve, but in no event less than the face value of the loan
on the Vehicle, losses in all cases to be payable to the Secured Party and
Debtor as their respective interests may appear. All policies of insurance shall
provide for at least ten days prior written notice cancellation to the Secured
Party, and the Debtor shall furnish the Secured Party with certificates of such
insurance or other evidence satisfactory to the Secured Party as to compliance
with the provisions of this paragraph. The Secured Party may act as attorney for
the Debtor in making, adjusting and settling claims under or canceling such
insurance and endorsing the Debtors name on any drafts drawn by insurers of the
Collateral.
Section 5.0 Free of Liens. The Debtor will keep the Collateral free from
any adverse lien, security interest, pledge or encumbrance and will not waste or
destroy the Collateral or any part thereof and will not use the Collateral in
violation of any applicable statute, ordinance or policy of insurance thereon.
Upon reasonable notice, the Secured Party may examine and inspect the books and
records of Debtor at any reasonable time or times.
Section 6.0 Substitution of Collateral. In accordance with the terms of the
Promissory Note which is secured by this Security Agreement, Debtor agrees that
in the event any individual retail installment contract contained in the
Contracts is prepaid by a customer, prepaid from insurance proceeds in the event
of destruction of any automobile which is security for any retail installment
sale contract or becomes sixty (60) days or more past due (the "Substitution
Events"), Debtor will substitute a similar retail installment contract in
substantially like amount and terms for the retail installment contract to be
replaced. This Security Agreement shall continue to apply to any substituted
retail installment contract which replaces any retail installment sale contract
previously included in the Contracts listed as collateral hereunder.
Section 7.0 Notice of Matters Affecting Collateral. Xxxxxx agrees to notify
secured party promptly of any material changes involving the Contracts,
including, but not limited to, prompt notice of any Substitution Event or any
other proceeding which Debtor may be notified of which may materially and
adversely affect Debtor' s or Xxxxxx's rights under the terms and conditions of
the Contracts or to the collateral encumbered by said Contracts.
Section 8.0 Taxes. The Debtor will pay promptly when due all taxes and
assessments upon the Collateral, if any.
Section 9.0 Additional Rights of Parties. At its option but without
obligation to do so, the Secured party may (a) discharge taxes, liens, security
interests or other encumbrances at any time levied or placed on the Collateral;
(b) place and pay for insurance on Collateral in the event Debtor fails to keep
the Collateral insured.
Section 10.0 Events of Default-Remedies. Upon the happening of any of the
following events or conditions and within ten day notice thereof, namely; (a)
default in the payment or performance of any of the obligations or of any
covenant contained or referred to herein or in any note evidencing any of the
obligations; (b) any warranty, representation or statement make or furnished to
the Secured Party by or on behalf of the Debtor in connection with this
Agreement proving to have been false in material respect when made or furnished,
(c) substantial amount of sale or encumbrance of the Collateral as determined in
the sale or encumbrance of the Collateral as determined in the reasonable
discretion of the Secured Party, or the making of any levy, seizure or
attachment thereof or thereon, (d) death, dissolution, termination of existence,
insolvency, business failure, appointment of a receiver of any part of the
Collateral of, assignment for the benefit of creditors by, or the commencement
of any proceedings under any bankruptcy or insolvency laws by, against or of
Debtor or any guarantor or surety for the Debtor, thereupon or at any time
thereafter (such default not having previously been cured), the Secured Party at
its option may declare all obligations that are in default to be immediately due
and payable, subject to any notice required by law or agreement, and shall then
have the remedies of a secured party under the Uniform Commercial Code ("UCC"),
or other applicable law, including, without limitation thereto, the right to
take possession of the Collateral, and for that purpose may pursue the
Collateral whenever the same may be found and with or without legal process, but
without a breach of the peace, may enter any premises where the Collateral may
be found and take possession thereof and remove the same.
Section 11.0 No Waste. The Secured Party may require the Debtor to make the
Collateral available to the Secured Party at a place to be designated by the
Secured Party which is reasonably convenient to both parties. The Secured Party
will give at least ten (10) days written notice to Debtor at the address shown
herein of the time and place of any public sale thereof or of the time after
which any private sale or any other intended disposition thereof is to be made.
Expenses of retaking, holding. preparing for sale, selling or the like shall,
subject to UCC limits if applicable, include the Secured Party's reasonable
attorney's fees and costs.
Section 12.0 Release of Collateral. As the principal balance of the Note
secured hereby is repaid, the Secured Party agrees to release that portion of
the Collateral from this Security Agreement as corresponds to the reduction of
the principal balance and accrued interest due under the Note. For each one
dollar reduction in the principal and accrued interest due under the Note, a
proportionate amount of Collateral shall be released from this Security
Agreement and shall thereafter be free of the lien and encumbrance created
hereunder. In no event shall the amount of principal and interest remaining on
the contracts constituting the Collateral be less than the amount of principal
and interest outstanding on the Note.
Section 13.0 General. This Agreement and the security interest in the
Collateral created hereby shall terminate when the obligation has been paid in
full. No waiver by the Secured Party of any default shall be effective unless in
writing nor operate as a waiver of any other default or of the same default on a
future occasion. All rights of the Secured Party hereunder shall inure to the
benefit of its successors and bind the successors and assigns of the Debtor. If
there be more than one Debtor, their obligations hereunder shall be joint and
several. This Agreement shall take effect when signed by the parties hereto.
Section 14.0 Construction. Should any provision of this Agreement violate
any federal, state or local law or ordinance, that provision shall be construed
in a manner so as to comply.
Section 15.0 Notices. All notices, requests and other communications
hereunder shall be given in writing and shall be deemed sufficiently given,
served, or received for all purposes when delivered personally, by United States
mail, postage prepaid, return receipt requested, by express courier, or by
Immediate Notice, and properly addressed as follows, or to such other address as
shall be set forth in a notice given in accordance with this Section 15.0.
(a) in the case of Holder to:
Western Fraternal Life Association
0000 Xxxxx Xxxxxx XX
Xxxxx Xxxxxx, Xxxx 00000
Attention: Xx. Xxxxxx X. Xxxxxxxxx
Telephone #: (000)000-0000
(b) in the case of Maker to:
Western Fidelity Funding, Inc.
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000-7417
Attention: Xx. Xxxx Xxxxxx, President
Telephone # (000) 000-0000
Telefax #: (000) 000-0000
Section 16.0 Miscellaneous.
(a) This Security Agreement sets forth the entire understanding of the
parties hereto with respect to the subject matter hereof and shall not be
changed, modified, or terminated except by a written instrument, duly executed
by all parties hereto. No waiver of any term or condition herein by any party
hereto shall be effective unless such waiver shall be expressed in a written
instrument duly executed by the party or parties against whom enforcement of
such waiver is sought.
(b) Any un-enforceability for any reason against any person or persons
or in any particular circumstance of any provision of this Security Agreement
shall not limit or impair the operation of validity of any other provision of
this Security Agreement and shall not limit or impair the operation and validity
of the same provision or provisions against any other person or persons or in
any other particular circumstances.
(c) This Security Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective heirs, executors,
administrators, legal representatives, successors, and permitted assigns.
(d) This Agreement shall be deemed entered into within Colorado and
Shall be governed by and interpreted in accordance with the laws of the State of
Colorado (without giving effect to principles relating to conflicts of laws).
(e) Legal matters in connection with the Note(s) and any security
agreement, pledge or other documents securing the Note(s) have been prepared or
reviewed on behalf of the debtor as its counsel by Xxxxx X. Xxxxxxx ("Debtor's
Counsel"). Xxxxxx's Counsel does not purport to have made any investigation or
to have acted independently on behalf of any payee, holder, or assignee of any
note or any secured party and has relied upon representations made by Western
Fidelity Funding, Inc., as to all matters which affect the Note(s) or any
collateral security therefore. Each payee, holder, assignee or secured party of
the Note(s) or any security agreement or pledge agreement must look to its own
counsel in connection with any loan represented by the Note(s) or any collateral
therefore and understand that Xxxxx X. Xxxxxxx has acted only as Xxxxxx's
Counsel.
If) All actions or proceedings in any way, manner or respect, arising
from or related to this Security Agreement may be litigated in courts having
situs within the State of Colorado. Debtor and Secured Party hereby consent and
Submit to the jurisdiction of any local, state or federal court located in said
state. Each party hereby waives any right it may have to transfer or change of
venue of any litigation in accordance herewith.
(g) Each party hereto waives any right to a trial by jury in any
action or proceeding to enforce or defend any rights (i) under this Security
Agreement or any amendment, instrument, document or agreement delivered or which
may in the future be delivered in connection herewith, or (ii) arising from any
relationship existing in connection with this Agreement, and agree that any such
action or proceeding shall be tried before a court and not before a jury.
(h) This Agreement may be executed in any number of counterparts, and
each such counterpart shall be deemed to an original and all such counterparts
shall constitute but one and the same instrument. Facsimile signatures shall be
considered as original signatures.
Dated this 12th day of February, 1996.
DEBTOR: SECURED PARTY:
WESTERN FIDELITY FUNDING, INC. WESTERN FRATERNAL LIFE ASSOCIATION
By: /s/ Xxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx
----------------------------------- ------------------------------
Xxxx X. Xxxxxx, President
Name: Xxxxxx X. Xxxxxxxxx
----------------------------
Its: Vice President
NOTICE
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT"), AS A COMMERCIAL LOAN NOT CONSTITUTING A SECURITY OR IN
RELIANCE ON AN EXEMPTION PROVIDED IN THE ACT AND/OR RULES AND REGULATIONS
PROMULGATED BY THE SECURITIES AND EXCHANGE COMMISSION, AND MAY NOT BE SOLD,
TRANSFERRED, ASSIGNED, OR OTHERWISE DISPOSED OF BY ANY PAYEE, OR HOLDER THEREIN
UNLESS THE NOTE IS REGISTERED UNDER THE ACT OF THE MAKER RECEIVES AN OPINION OF
COUNSEL ACCEPTABLE TO IT THAT SUCH REGISTRATION IS NOT REQUIRED, AND THEN ONLY
IN COMPLIANCE WITH STATE SECURITIES LAWS. IN ADDITION, THE NOTE HAS NOT BEEN
REGISTERED UNDER THE COLORADO SECURITIES ACT OF 1990 BY REASON OF THE COMMERCIAL
LOAN NOT CONSTITUTING A SECURITY OR SPECIFIC EXEMPTIONS THEREUNDER RELATING TO
THE LIMITED AVAILABILITY OF THE NOTE. THE NOTE CANNOT BE SOLD, TRANSFERRED,
ASSIGNED OR OTHERWISE DISPOSED OF TO ANY PERSON OF ENTITY UNLESS SUBSEQUENTLY
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE COLORADO
SECURITIES ACT OF 1990, IF SUCH REGISTRATION IS REQUIRED. FURTHER, THE NOTE HAS
NOT BEEN REVIEWED APPROVED OR DISAPPROVED BY THE SECRETARY OF STATE, OR OTHER
SIMILAR GOVERNMENTAL OFFICE, OF ANY OTHER STATE.
PROMISSORY NOTE
(Commercial Loan)
$499,490.21 January 23, 1997
FOR VALUE RECEIVED, the undersigned promises to pay to WESTERN FRATERNAL
LIFE ASSOCIATION (individually referred to as "Holder") at the address for
Holder shown in the Notice provision hereof, or as such other address as any
Holder may from time to time designate in writing in accordance with the Notice
provision, in the legal and lawful tender of the United States, the principal
sum of FOUR HUNDRED NINETY-NINE THOUSAND FOUR HUNDRED NINETY AND 21/100'S
DOLLARS ($499,490.21), together with interest which shall accrue at the rate of
nine and eighty five one hundredths percent (9.85%) per annum payable on the
terms set forth in paragraph I hereof.
I. Terms of Repayment. The principal shall be amortized over forty eight
(57) months with interest at the rate of nine and eighty five one hundredths
percent (9.85%) per annum resulting in monthly payments of principal and
interest in the amount of ELEVEN THOUSAND SEVEN AND 52/100'S DOLLARS
($11,007.52). An amortization schedule is attached hereto as Exhibit A and
incorporated herein by this reference. Said monthly payments shall commence on
the twentieth day of February, 1996 and on the twentieth day of each month
thereafter until this Note is paid in full. The first monthly payment shall be
adjusted to reflect only that interest due in arrears from the date the
principal is advanced by Holder to Maker. The last monthly payment shall be
adjusted to reflect any prepayments or principal reductions during the term of
this Note. Payments shall be due on the twentieth day of each month and shall be
considered delinquent on the thirtieth day of each month.
2. Application of Payment. All payments of principal and interest by Maker
to the Holder of this Note shall be first applied to accrued interest with the
balance applied to principal.
3. Security. This Note shall be secured by Maker's Security Agreement and
Pledge Agreement which pledges retail installment sale contracts entered into
between various customers and the Maker for the purchase of automobiles, more
particularly described in the Security Agreement and Pledge Agreement (the
"Contracts" or "Collateral"). Maker shall continue to service and collect the
payments on said Contracts in accordance with their terms from the life of the
Contracts, Maker covenants and agrees that the outstanding principal balance
plus accrued interest payable over the life of said Contracts in monthly
payments from customers shall be equal to or greater than principal and interest
payable to Holder under this Note, which payments due under the Contracts are to
be pledged by Maker as security for this Note.
4. Substitution of Collateral. Maker agrees in the event any individual
retail installment contract contained in the Contracts is prepaid by a customer,
prepaid from insurance proceeds in the event of destruction of any automobile
which is security for any retail installment sale contract or becomes sixty (60)
days or more past due (the "Substitution Events"), Maker will substitute a
similar retail installment contract to be replaced. The Security Agreement and
Pledge Agreement which secure this Note shall continue to apply to any
substituted retail installment contract which replaces any retail installment
contract previously included in the Contracts or Collateral.
5. Release of Collateral. As the principal balance of this Note is repaid
(including prepayments), the Holder agrees to release that portion of the
Collateral from the Security Agreement and Pledge Agreement which secures this
Note as corresponds to the reduction of the principal balance and accrued
interest due under this Note. For each one dollar reduction in the principal and
accrued interest due under this Note, a proportionate amount of Collateral shall
be released from the Security Agreement and Pledge Agreement and shall
thereafter be free of the lien and encumbrance created thereunder. In no event
shall the amount of principal and interest remaining on the Contracts
constituting the Collateral be less than the amount of principal and interest
outstanding on the Note.
6. No Sale, Transfer or Assignment. This Note constitutes a non-negotiable
instrument and shall not be sold, transferred or assigned without the consent of
Maker and without meeting the possible securities registration requirement set
forth in the NOTICE contained above.
7. Miscellaneous.
(a) There shall be no acceleration of any amount due under this Note,
except as specifically provided in this Note,
(b) Upon payment of monies due on this Note, in accordance with its
terms, Holder shall release the collateral or the applicable portion thereof in
accordance with the terms of the Security Agreement and Pledge Agreement.
(c) In the event of a default by Maker on this Note, Holder shall look
solely to the assets of Maker for repayment, including the property, cash and
other property or assets of Maker, but none of the officers, directors, or
shareholders shall have any personal liability for payment hereunder, and no
such action or other legal proceedings shall be brought against any of the
officers, directors or shareholders of Maker, for any deficiency if the
Collateral and assets of Maker are not sufficient to satisfy the repayment of
this Note.
(d) If Maker fails to make any Payment when due hereunder, whether of
principal, interest or otherwise, or commits any default hereunder or under the
Security Agreement, Pledge Agreement or any other instrument related hereto, the
Holder shall have those options set forth in the Security Agreement and Pledge
Agreement after ten (10) days notice to Maker specifying the event of default
after which time this Note shall bear interest at the rate of twelve percent
(12%) per annum, unless the default is timely cured. During the ten (1 0) days
following notice from Holder, the Maker shall have the right to cure any
monetary or non-monetary default and if the cure be made, this Note and the
security therefore shall continue in full force and effect as if no default had
occurred.
(e) This Note sets forth the entire understanding of the parties
hereto with respect to the subject matter hereof and shall not be changed,
modified, or terminated except by a written instrument, duly executed by all
parties hereto. No waiver of any term or condition herein by any party hereto
shall be effective unless such waiver shall be expressed in a written instrument
duly executed by the party or parties against whom enforcement of such waiver is
sought.
(f) Any un-enforceability for any reason against any person or persons
or in any particular circumstance of any provision of the Note shall not limit
or impair the operation or validity or any other provision of this Note and
shall not limit or impair the operation and validity of the same provision or
provisions against any other person or persons or in any other particular
circumstance.
(g) It is the intention of Maker and Holder that this Note be
construed tin accordance with and governed by the laws of the State of Colorado
for contracts entered into and wholly performed in such state.
(h) The Maker and all other parties who are now or who may hereafter
become liable on this Note severally waive, except as expressly set forth
herein, demand, presentment for payment, protest, notice of dishonor, protest or
intent to accelerate and acceleration and diligence in collecting and bringing
suit against any party liable on this Note.
(i) Holder shall be entitled to collect a reasonable attorney's fee
from the Maker, as well as other costs and expenses reasonably incurred, in
curing any default of or attempting collection of the payment due under the Note
and to receive from the Maker (or in lieu thereof, the Maker may advance) all
expenses paid by the Holder under the terms of the Security Agreement.
(i) This Note is secured by a Security Agreement and Pledge Agreement
of even date made by Maker for the benefit of the Holder hereof and the terms
and provisions of said Security Agreement and Pledge Agreement by this reference
are make a part hereof,
(k) All actions or proceedings in any way, manner or respect, arising
from or related to this Note may be litigated in Courts having situs within the
State of Colorado. Maker and Holder hereby consent and submit to the
jurisdiction of any local, state or federal court located in said state. Each
party hereby waives any right it may have to transfer or change of venue of any
litigation in accordance herewith.
(1) Each party hereto waives any right to a trial by jury in any
action or proceeding to enforce or defend any rights (i) under this Note or any
amendment, instrument, document or agreement delivered or which may in the
future be delivered in connection herewith, or (ii) arising from any
relationship existing in connection with this Note, and agree that any such
action or proceeding shall be tried before a court and not before a jury.
(m) Legal matters in connection with the Note and any Security
Agreement, Pledge Agreement or other documents securing the Note have been
prepared or reviewed on behalf of the Maker as its counsel by Xxxxx X. Xxxxxxx
("Maker's Counsel"). Maker's Counsel does not purport to have made any
investigation or to have acted independently on behalf of any payee, holder, or
assignee of any note or any secured party and has relied upon representations
made by Western Fidelity Funding, Inc. as to all matters which affect the Note
or any security agreement or pledge agreement must look to its own counsel in
connection with the commercial loan represented by the Note or any collateral
therefore and understand that Xxxxx X. Xxxxxxx has acted only as Maker's
Counsel.
(n) All notices, requests and other communications hereunder shall be
given in writing and shall be deemed sufficiently given, served, or received for
all purposes when delivered personally, by United States mail, postage prepaid,
return receipt requested, by express courier, or by immediate notice, and
properly addressed as follows, or to such other address as shall be set forth in
a notice given in accordance with this sub-section n
(a) in the case of Holder to:
Western Fraternal Life Association
0000 Xxxxx Xxxxxx XX
Xxxxx Xxxxxx, Xxxx 00000
Attention: Xx. Xxxxxx X. Xxxxxxxxxx
Telephone # (000)000-0000
(b) in the case of Maker to:
Western Fidelity Funding, Inc.
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000-7417
Attention: Xx. Xxxx Xxxxxx, President
Telephone #: (000) 000-0000
Telefax # (000) 000-0000
IN WITNESS WHEREOF, the Maker has caused this instrument to be executed this the
31day of January, 1996
MAKER: WESTERN FIDELITY FUNDING, INC. a Colorado
corporation
By: /s/ Xxxx X. Xxxxxx
------------------------------------
Xxxx X. Xxxxxx, President
PLEDGE AGREEMENT
This pledge is made as of this 31st day of January, 1996 by WESTERN
FIDELITY FUNDING, INC. (hereinafter referred to as "WFFI"), to WESTERN FRATERNAL
LIFE ASSOCIATION (hereinafter referred to as "Lender").
RECITALS
WHEREAS WFFI has acquired and is the owner of the automobile installment
sale contracts ("Contracts") listed on Exhibit A attached hereto and
incorporated herein by this reference, and
WHEREAS Lender requires the right to collect payments made by the maker(s)
of the Contracts, and the right to enforce all of WFFI's rights, claims and
interests related to said Contracts, (including but not limited to the right to
repossess the auto(s) which are the subject of the Contracts herein pledged).
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, WFFI and Xxxxxx agree as follows:
1. The Contracts are hereby pledged to Lenders to secure payment of
Xxxxxx's loan to WFFI evidenced by a Promissory Note dated January 23, 1997 in
the amount of $499,490.21.
2. In accordance with the terms of the Promissory Note which is secured by
this Pledge Agreement, WFFI agrees that in the event any individual retail
installment contract contained in the Contracts is prepaid by a customer,
prepaid from insurance proceeds in the event of destruction of any automobile
which is security for any retail installment sale contract or becomes sixty (60)
days or more past due (the "Substitution Events"), WFFI will substitute a
similar retail installment contract in substantially like amount and terms for
the retail installment contract to be replaced. This Pledge Agreement shall
continue to apply to any substitute retail installment sale contract which
replaces any retail installment sale contract previously included in the
Contracts pledged hereunder.
3. XXXX agrees to notify Xxxxxx promptly of any material changes involving
the Contracts, including, but not limited to, prompt notice of any Substitution
Event or any other proceeding which WFF] may be notified of which may materially
and adversely affects WFFI's or Lender's rights under the terms and conditions
of the Contracts or to the collateral encumbered by said Contracts.
4. As the principal balance of the Note secured hereby is repaid, the
Lender agrees to release that portion of the Contracts from this Pledge
Agreement as corresponds to the reduction or the principal balance and accrued
interest due under the Note for each one dollar reduction in the principal and
accrued interest due under the Note, a proportionate amount of Contracts shall
be released from this Pledge Agreement and shall thereafter be free of the lien
or pledge created hereunder. In no event shall the amount of principal and
interest remaining on the Contracts pledged hereunder be less that the amount of
principal and interest outstanding on the Note.
5. This Pledge Agreement shall terminate when the obligation has been paid
in full. No waiver by the Lenders of any default shall be effective unless in
writing nor operate as a waiver of any other default or of the same default on a
future occasion. All rights of the Lender hereunder shall inure to the benefit
of its successors and bind the successors and assigns of the WFFI, This Pledge
Agreement shall take effect when signed by the parties hereto.
6. XXXX agrees to pay any and all of Xxxxxx's costs, including reasonable
attorney's fees, incurred in exercising or enforcing its rights under this
Pledge Agreement.
7. All notices, requests and other communications hereunder shall be given
in writing and shall be deemed sufficiently given, served, or received for all
purposes when delivered personally, by United States mail, postage prepaid,
return receipt requested, by express courier, or by Immediate Notice, and
properly addressed as follows, or to such other address as shall be set forth in
a notice given in accordance with this Section 7.
(a) in the case of Holder to
Western Fraternal Life Association
0000 Xxxxx Xxxxxx XX
Xxxxx Xxxxxx, Xxxx 00000
Attention: Xx. Xxxxxx X. Xxxxxxxxx
Telephone #: (000)000-0000
(b) in the case of Maker to:
Western Fidelity Funding, Inc.
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000-7417
Attention: Xx. Xxxx Xxxxxx, President
Telephone #: (000) 000-0000
Telefax # (000) 000-0000
8. Miscellaneous.
(a) This Pledge Agreement sets forth the entire understanding of the
parties hereto with respect to the subject matter hereof and shall not be
changed, modified, or terminated except by a written instrument, duly executed
by all parties hereto. No waiver of any term or condition herein by any party
hereto shall be effective unless such waiver shall be expressed in a written
instrument duly executed by the party or parties against whom enforcement of
such waiver is sought.
(b) Any un-enforceability for any reason against any person or persons
or in any particular circumstance of any provision of this Pledge Agreement
shall not limit or impair the operation of validity of any other provision of
this Pledge Agreement and shall not limit or impair the operation and validity
of the same provision or provisions against any other person or persons or in
any other particular circumstances.
(c) Should any provision of this Pledge Agreement violate any federal,
state or local law or ordinance, that provision shall be deemed amended to so
comply with such law or ordinance, and shall be construed in a manner so as to
comply.
(d) This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective heirs, executors, administrators, legal
representatives, successors, and permitted assigns.
(e) This Agreement shall be deemed entered into within Colorado and
shall be governed by and interpreted in accordance with the laws of the State of
Colorado (without giving effect to principles relating to conflicts of laws).
(f) Legal matters in connection with the Note(s) and any security
agreement, Pledge Agreement or other documents securing the Note(s) have been
prepared or reviewed on behalf of WFFI as its counsel by Xxxxx X. Xxxxxxx
("WFFI's Counsel"). XXXX's Counsel does not purport to have made any
investigation or to have acted independently on behalf of any payee, holder, or
assignee of any note or any secured party or pledgee and has relied upon
representations made by XXXX as to all matters which affect the Note(s) or any
collateral security therefore. Each payee, holder, assignee, pledgee or secured
party of the Note(s) or any security agreement or Pledge Agreement must look to
its own counsel in connection with any loan represented by the Note(s) or any
collateral therefore and understand that Xxxxx X. Xxxxxxx has acted only as
XXXX's Counsel.
(g) All actions or proceedings in any way, manner or respect, arising
from or related to this Agreement may be litigated in courts having situs within
the State of Colorado. WFFI and Lender hereby consent and submit to the
jurisdiction of any local, state or federal court located in said state. Each
party hereby waives any right it may have to transfer or change of venue of any
litigation in accordance herewith.
(h) Each party hereto waives any right to a trial by jury in any
action or proceeding to enforce or defend any rights (i) under this Agreement or
any amendment, instrument, document or agreement delivered or which may in the
future be delivered in connection herewith, or (ii) arising from any
relationship existing in connection with this Agreement, and agree that any such
action or proceeding shall be tried before a court and not before a jury.
(i) This Agreement may be executed in any number of counterparts, and
each such counterpart shall be deemed to any original and all such counterparts
shall constitute but one and the same instrument. Facsimile signatures shall be
considered as original signatures.
Dated this 23rd day of January, 1997.
WESTERN FIDELITY FUNDING, INC.
By: /s/ Xxxx X. Xxxxxx
-----------------------------------------
Xxxx X. Xxxxxx, President
WESTERN FRATERNAL LIFE ASSOCIATION
By: /s/ Xxxxxx X. Xxxxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
--------------------------------------
Its: Vice President
--------------------------------------
SECURITY AGREEMENT
This Agreement entered into between WESTERN FIDELITY FUNDING, INC., a
Colorado corporation ("Debtor") and WESTERN FRATERNAL LIFE ASSOCIATION (the
"Secured Party"), The Debtor hereby warrants and covenants that:
Section 1.0 Collateral. The Debtor is the beneficial owner of the
"Collateral" which consists of the retail installment sale contracts entered
into between the customer and the Debtor (the "Contracts"). The Contracts which
comprise the Collateral are listed on Exhibit A attached hereto and incorporated
herein by this reference. The Collateral will be maintained by the Debtor at its
principal office and Debtor will service the collection of the Contracts. Except
for the security interest granted hereby, the collateral will be free from any
prior lien, security interest, pledge or encumbrance, and the Debtor will defend
the Collateral against all claims and demands of all persons at any time
claiming the same or any interest therein.
Section 2.0 No Transfer. The Debtor will not sell or otherwise transfer or
encumber the Collateral or any interest therein without the prior written
consent of the Secured Party,
Section 3.0 Perfection of Interest. The Debtor will immediately notify the
Secured Party in writing of any change in address from that shown in this
Agreement and will also upon demand furnish to the Secured Party such further
information and will execute and deliver to the Secured Party such financing
statements, mortgages and other papers and will do all such acts and things as
the Secured Party may at any time or from time to time reasonably request and/or
as may be necessary or appropriate to establish and maintain a valid security
interest in the Collateral as security for the obligations, subject to no prior
liens or encumbrances.
Section 4.0 Insurance. The Debtor will keep the Collateral at all times
insured against risks of loss and such other casualties as the Secured Party may
reasonably require, all in such amounts, under such forms of policies, including
the Indemnity Policy currently issued by Empire Fire & Marine, upon such terms,
for such periods and written by such other companies or underwriters as the
Secured Party may approve, but in no event less than the face value of the loan
on the Vehicle, losses in all cases to be payable to the Secured Party and
Debtor as their respective interests may appear. All policies of insurance shall
provide for at least ten days prior written notice cancellation to the Secured
Party, and the Debtor shall furnish the Secured Party with certificates of such
insurance or other evidence satisfactory to the Secured Party as to compliance
with the provisions of this paragraph. The Secured Party may act as attorney for
the Debtor in making, adjusting and settling claims under or canceling such
insurance and endorsing the Debtors name on any drafts drawn by insurers of the
Collateral.
Section 5.0 Free of Liens. The Debtor will keep the Collateral free from
any adverse lien, security interest, pledge or encumbrance and will not waste or
destroy the Collateral or any part thereof and will not use the Collateral in
violation of any applicable statute, ordinance or policy of insurance thereon.
Upon reasonable notice, the Secured Party may examine and inspect the books and
records of Debtor at any reasonable time or times.
Section 6.0 Substitution of Collateral. In accordance with the terms of the
Promissory Note which is secured by this Security Agreement, Debtor agrees that
in the event any individual retail installment contract contained in the
Contracts is prepaid by a customer, prepaid from insurance proceeds in the event
of destruction of any automobile which is security for any retail installment
sale contract or becomes sixty (60) days or more past due (the "Substitution
Events"), Debtor will substitute a similar retail installment contract in
substantially like amount and terms for the retail installment contract to be
replaced. This Security Agreement shall continue to apply to any substituted
retail installment contract which replaces any retail installment sale contract
previously included in the Contracts listed as collateral hereunder.
Section 7.0 Notice of Matters Affecting Collateral. Xxxxxx agrees to notify
secured party promptly of any material changes involving the Contracts,
including, but not limited to, prompt notice of any Substitution Event or any
other proceeding which Debtor may be notified of which may materially and
adversely affect Debtor' s or Xxxxxx's rights under the terms and conditions of
the Contracts or to the collateral encumbered by said Contracts.
Section 8.0 Taxes. The Debtor will pay promptly when due all taxes and
assessments upon the Collateral, if any.
Section 9.0 Additional Rights of Parties. At its option but without
obligation to do so, the Secured party may (a) discharge taxes, liens, security
interests or other encumbrances at any time levied or placed on the Collateral;
(b) place and pay for insurance on Collateral in the event Debtor fails to keep
the Collateral insured.
Section 10.0 Events of Default-Remedies. Upon the happening of any of the
following events or conditions and within ten day notice thereof, namely; (a)
default in the payment or performance of any of the obligations or of any
covenant contained or referred to herein or in any note evidencing any of the
obligations; (b) any warranty, representation or statement make or furnished to
the Secured Party by or on behalf of the Debtor in connection with this
Agreement proving to have been false in material respect when made or furnished,
(c) substantial amount of sale or encumbrance of the Collateral as determined in
the sale or encumbrance of the Collateral as determined in the reasonable
discretion of the Secured Party, or the making of any levy, seizure or
attachment thereof or thereon, (d) death, dissolution, termination of existence,
insolvency, business failure, appointment of a receiver of any part of the
Collateral of, assignment for the benefit of creditors by, or the commencement
of any proceedings under any bankruptcy or insolvency laws by, against or of
Debtor or any guarantor or surety for the Debtor, thereupon or at any time
thereafter (such default not having previously been cured), the Secured Party at
its option may declare all obligations that are in default to be immediately due
and payable, subject to any notice required by law or agreement, and shall then
have the remedies of a secured party under the Uniform Commercial Code ("UCC"),
or other applicable law, including, without limitation thereto, the right to
take possession of the Collateral, and for that purpose may pursue the
Collateral whenever the same may be found and with or without legal process, but
without a breach of the peace, may enter any premises where the Collateral may
be found and take possession thereof and remove the same.
Section 11.0 No Waste. The Secured Party may require the Debtor to make the
Collateral available to the Secured Party at a place to be designated by the
Secured Party which is reasonably convenient to both parties. The Secured Party
will give at least ten (10) days written notice to Debtor at the address shown
herein of the time and place of any public sale thereof or of the time after
which any private sale or any other intended disposition thereof is to be made.
Expenses of retaking, holding. preparing for sale, selling or the like shall,
subject to UCC limits if applicable, include the Secured Party's reasonable
attorney's fees and costs.
Section 12.0 Release of Collateral. As the principal balance of the Note
secured hereby is repaid, the Secured Party agrees to release that portion of
the Collateral from this Security Agreement as corresponds to the reduction of
the principal balance and accrued interest due under the Note. For each one
dollar reduction in the principal and accrued interest due under the Note, a
proportionate amount of Collateral shall be released from this Security
Agreement and shall thereafter be free of the lien and encumbrance created
hereunder. In no event shall the amount of principal and interest remaining on
the contracts constituting the Collateral be less than the amount of principal
and interest outstanding on the Note.
Section 13.0 General. This Agreement and the security interest in the
Collateral created hereby shall terminate when the obligation has been paid in
full. No waiver by the Secured Party of any default shall be effective unless in
writing nor operate as a waiver of any other default or of the same default on a
future occasion. All rights of the Secured Party hereunder shall inure to the
benefit of its successors and bind the successors and assigns of the Debtor. If
there be more than one Debtor, their obligations hereunder shall be joint and
several. This Agreement shall take effect when signed by the parties hereto.
Section 14.0 Construction. Should any provision of this Agreement violate
any federal, state or local law or ordinance, that provision shall be construed
in a manner so as to comply.
Section 15.0 Notices. All notices, requests and other communications
hereunder shall be given in writing and shall be deemed sufficiently given,
served, or received for all purposes when delivered personally, by United States
mail, postage prepaid, return receipt requested, by express courier, or by
Immediate Notice, and properly addressed as follows, or to such other address as
shall be set forth in a notice given in accordance with this Section 15.0.
(a) in the case of Holder to:
Western Fraternal Life Association
0000 Xxxxx Xxxxxx XX
Xxxxx Xxxxxx, Xxxx 00000
Attention: Xx. Xxxxxx X. Xxxxxxxxx
Telephone #: (000)000-0000
(b) in the case of Maker to:
Western Fidelity Funding, Inc.
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000-7417
Attention: Xx. Xxxx Xxxxxx, President
Telephone # (000) 000-0000
Telefax #: (000) 000-0000
Section 16.0 Miscellaneous.
(a) This Security Agreement sets forth the entire understanding of the
parties hereto with respect to the subject matter hereof and shall not be
changed, modified, or terminated except by a written instrument, duly executed
by all parties hereto. No waiver of any term or condition herein by any party
hereto shall be effective unless such waiver shall be expressed in a written
instrument duly executed by the party or parties against whom enforcement of
such waiver is sought.
(b) Any un-enforceability for any reason against any person or persons
or in any particular circumstance of any provision of this Security Agreement
shall not limit or impair the operation of validity of any other provision of
this Security Agreement and shall not limit or impair the operation and validity
of the same provision or provisions against any other person or persons or in
any other particular circumstances.
(c) This Security Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective heirs, executors,
administrators, legal representatives, successors, and permitted assigns.
(d) This Agreement shall be deemed entered into within Colorado and
Shall be governed by and interpreted in accordance with the laws of the State of
Colorado (without giving effect to principles relating to conflicts of laws).
(e) Legal matters in connection with the Note(s) and any security
agreement, pledge or other documents securing the Note(s) have been prepared or
reviewed on behalf of the debtor as its counsel by Xxxxx X. Xxxxxxx ("Debtor's
Counsel"). Xxxxxx's Counsel does not purport to have made any investigation or
to have acted independently on behalf of any payee, holder, or assignee of any
note or any secured party and has relied upon representations made by Western
Fidelity Funding, Inc., as to all matters which affect the Note(s) or any
collateral security therefore. Each payee, holder, assignee or secured party of
the Note(s) or any security agreement or pledge agreement must look to its own
counsel in connection with any loan represented by the Note(s) or any collateral
therefore and understand that Xxxxx X. Xxxxxxx has acted only as Xxxxxx's
Counsel.
(f) All actions or proceedings in any way, manner or respect, arising
from or related to this Security Agreement may be litigated in courts having
situs within the State of Colorado. Debtor and Secured Party hereby consent and
Submit to the jurisdiction of any local, state or federal court located in said
state. Each party hereby waives any right it may have to transfer or change of
venue of any litigation in accordance herewith.
(g) Each party hereto waives any right to a trial by jury in any
action or proceeding to enforce or defend any rights (i) under this Security
Agreement or any amendment, instrument, document or agreement delivered or which
may in the future be delivered in connection herewith, or (ii) arising from any
relationship existing in connection with this Agreement, and agree that any such
action or proceeding shall be tried before a court and not before a jury.
(h) This Agreement may be executed in any number of counterparts, and
each such counterpart shall be deemed to an original and all such counterparts
shall constitute but one and the same instrument. Facsimile signatures shall be
considered as original signatures.
Dated this23rd day of January, 1997.
DEBTOR: SECURED PARTY:
WESTERN FIDELITY FUNDING, INC. WESTERN FRATERNAL LIFE ASSOCIATION
By: /s/ Xxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxxxx
----------------------------------- ------------------------------
Xxxx X. Xxxxxx, President
Name: Xxxxxx X. Xxxxxxxxx
----------------------------
Its: Vice President
