SECURITY AGREEMENT
Exhibit 10.10
DATE AND PARTIES. The date of this Security Agreement (Agreement) is November 2, 2011. The parties and their addresses are:
SECURED PARTY:
HOME FEDERAL BANK
000 X XXXX XXX
XXXXX XXXXX, XX 00000
DEBTOR:
MANITEX LOAD KING, INC.
a Michigan Corporation
000 X XXXX XXXXXX
XXX XXXXX, XX 00000
The pronouns “you” and “your” refer to the Secured Party. The pronouns “I,” “me” and “my” refer to each person or entity signing this Agreement as Debtor and agreeing to give the Property described in this Agreement as security for the Secured Debts.
1. SECURED DEBTS. The term “Secured Debts” includes and this Agreement will secure each of the following:
A. Specific Debts. The following debts and all extensions, renewals, refinancings, modifications and replacements. A promissory note, No. 9549601, dated November 2, 2011, from me to you, in the amount of $400,000.00.
B. All Debts. All present and future debts from me to you, even if this Agreement is not specifically referenced, the future debts are also secured by other collateral, or if the future debt is unrelated to or of a different type than this debt. Nothing in this Agreement constitutes a commitment to make additional or future loans or advances. Any such commitment must be in writing.
This Agreement will not secure any debt for which you fail to give any required notice of the right of rescission. This Agreement will not secure any debt for which a non-possessory, non-purchase money security interest is created in “household goods” in connection with a “consumer loan,” as those terms are defined by federal law governing unfair and deceptive credit practices. In addition, this Agreement will not secure any other debt if, with respect to such other debt, you fail to fulfill any necessary requirements or limitations of Sections 19(a), 32 or 35 of Regulation Z or if, as a result, the other debt would become subject to Section 670 of the Xxxx Xxxxxx National Defense Authorization Act for Fiscal Year 2007.
C. Sums Advanced. All sums advanced and expenses incurred by you under the terms of this Agreement.
Loan Documents refer to all the documents executed in connection with the Secured Debts.
2. SECURITY INTEREST. To secure the payment and performance of the Secured Debts, I give you a security interest in all of the Property described in this Agreement that I own or have sufficient rights in which to transfer an interest, now or in the future, wherever the Property is or will be located, and all proceeds and products from the Property (including, but not limited to, all
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parts, accessories, repairs, replacements, improvements, and accessions to the Property). Property is all the collateral given as security for the Secured Debts and described in this Agreement, and includes all obligations that support the payment or performance of the Property. “Proceeds” includes cash proceeds, non-cash proceeds and anything acquired upon the sale, lease, license, exchange, or other disposition of the Property; any rights and claims arising from the Property; and any collections and distributions on account of the Property. This Agreement remains in effect until terminated in writing, even if the Secured Debts are paid and you are no longer obligated to advance funds to me under any loan or credit agreement.
3. PROPERTY DESCRIPTION. The Property is described as follows:
A. Equipment. All equipment including, but not limited to, all machinery, vehicles, furniture, fixtures, manufacturing equipment, farm machinery and equipment, shop equipment, office equipment, excluding computers and recordkeeping equipment, and tools. All equipment described in a list or schedule which I give to you will also be included in the Property, but such a list is not necessary for a valid security interest in my equipment.
4. WARRANTIES AND REPRESENTATIONS. I make to you the following warranties and representations which will continue as long as this Agreement is in effect:
A. Power. I am in good standing in South Dakota. I have the power and authority to enter into this transaction and to carry on my business or activity as it is now being conducted and, as applicable, am qualified to do so in South Dakota.
B. Authority. The execution, delivery and performance of this Agreement and the obligation evidenced by this Agreement are within my powers, have been duly authorized, have received all necessary governmental approval, will not violate any provision of law, or order of court or governmental agency, and will not violate any agreement to which I am a party or to which I am or any of my property is subject.
C. Name and Location. My name indicated in the DATE AND PARTIES section is my exact legal name. I am an entity organized and registered under the laws of Michigan. I will provide verification of registration and location upon your request. I will provide you with at least 15 days notice prior to any change in my name, address, or state of organization or registration.
D. Business Name. Other than previously disclosed in writing to you I have not changed my name or principal place of business within the last 2 years and have not used any other trade or fictitious name in the last 2 years. I will preserve my existing name, trade names and franchises.
E. Ownership of Property. I represent that I own all of the Property. Your claim to the Property is ahead of the claims of any other creditor, except as disclosed in writing to you prior to any advance on the Secured Debts.
5. DUTIES TOWARD PROPERTY.
A. Protection of Secured Party’s Interest. I will defend the Property against any other material claim. I agree to take commercially reasonable steps to protect your security interest and to keep your claim in the Property ahead of the claims of other creditors.
I will keep books, records and accounts about the Property and my business in general. I will let you examine these and make copies on reasonable notice and at any reasonable time. I will prepare any report or accounting you request which deals with the Property.
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B. Use, Location, and Protection of the Property. I will keep the Property in my possession and in good repair to the extent required by my business. I will use it only for commercial purposes. I will not change this specified use without your prior written consent. You have the right of reasonable access to inspect the Property and I will immediately inform you of any loss or damage to the Property. I will not cause or permit waste to the Property except reasonable wear and tear.
I will keep the Property at my address listed in the DATE AND PARTIES section, unless I give you notice, that I plan to keep it at another location. If the Property is to be used in other states, I will give you a list of those states. The location of the Property is given to aid in the identification of the Property. It does not in any way limit the scope of the security interest granted to you. I will notify you in writing and obtain your prior written consent to any change in location of any of the Property. I will not use the Property in violation of any law. I will notify you in writing of any change in my address, name or, if an organization, any change in my identity or structure.
Until the Secured Debts are fully paid and this Agreement is terminated, I will not grant a security interest in any of the Property without your prior written consent. I will pay all taxes and assessments levied or assessed against me or the Property and provide timely proof of payment of these taxes and assessments upon request unless such taxes or assessments are being contested.
C. Selling, Leasing or Encumbering the Property. I will not sell, offer to sell, lease, or otherwise transfer or encumber any material part of the Property without your prior written permission, except for Property sold in the ordinary course of business at fair market value. Any disposition of the Property contrary to this Agreement will violate your rights. Your permission to sell the Property may be reasonably withheld without regard to the creditworthiness of any buyer or transferee. I will not permit the Property to be the subject of any court order affecting my rights to the Property in any action by anyone other than you.
6. INSURANCE. I agree to obtain the insurance described in this Loan Agreement.
A. Property Insurance. I will insure or retain insurance coverage on the Property and abide by the insurance requirements of any security instrument securing the Loan.
X. Xxxxx Insurance. Flood insurance is not required at this time. It may be required in the future should the property be included in an updated flood plain map. If required in the future, I may obtain flood insurance from anyone I want that is reasonably acceptable to you.
C. Insurance Warranties. I agree to purchase any insurance coverages that are, in the amounts that, in my judgment are reasonably prudent. I will provide you with continuing proof of coverage. I will have the insurance company name you as loss payee on any insurance policy. You will apply the insurance proceeds toward what I owe you on the outstanding balance. I agree that if the insurance proceeds do not cover the amounts I still owe you, I will pay the difference. I will keep the insurance until all debts secured by this agreement are paid.
7. AUTHORITY TO PERFORM. I authorize you to do anything you deem reasonably necessary to protect the Property, and perfect and continue your security interest in the Property. If I fail to perform any of my duties under this Agreement or any other Loan Document, you are authorized, without notice to me, to perform the duties or cause them to be performed.
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These authorizations include, but are not limited to, permission to:
A. pay and discharge taxes, liens, security interests or other encumbrances at any time levied or placed on the Property.
B. pay any rents or other charges under any lease affecting the Property.
C. order and pay for the repair, maintenance and preservation of the Property.
D. file any financing statements on my behalf and pay for filing and recording fees pertaining to the Property.
E. take any commercially reasonable action you feel necessary to realize on the Property.
F. handle any suits or other proceedings involving the Property in my name.
G. make an entry on my books and records showing the existence of this Agreement.
If you perform for me, you will use reasonable care. If you exercise the care and follow the procedures that you generally apply to the collection of obligations owed to you, you will be deemed to be using reasonable care. Reasonable care will not include: any steps necessary to preserve rights against prior parties; the duty to send notices, perform services or take any other action in connection with the management of the Property; or the duty to protect, preserve or maintain any security interest given to others by me or other parties. Your authorization to perform for me will not create an obligation to perform and your failure to perform will not preclude you from exercising any other rights under the law or this Agreement. All cash and non-cash proceeds of the Property may be applied by you only upon your actual receipt of cash proceeds against such of the Secured Debts, matured or unmatured, as you determine in your sole discretion.
If you come into actual or constructive possession of the Property, you will preserve and protect the Property. For purposes of this paragraph, you will be in actual possession of the Property only when you have physical, immediate and exclusive control over the Property and you have affirmatively accepted that control. You will be in constructive possession of the Property only when you have both the power and the intent to exercise control over the Property.
8. DEFAULT. I will be in default if any of the following events (known separately and collectively as an Event of Default) occur:
A. Payments. I fail to make a payment in full within 15 days of when due.
B. Insolvency or Bankruptcy. The dissolution or appointment of a receiver by or on behalf of, application of any debtor relief law, the assignment for the benefit of creditors by or on behalf of, the voluntary or involuntary termination of existence by, or the commencement of any proceeding under any present or future federal or state insolvency, bankruptcy, reorganization, composition or debtor relief law by or against me or any co-signer, endorser, surety or guarantor of this Note or any other obligations I have with you which is not stayed or dismissed within 60 days.
C. Business Termination. I dissolve, reorganize, end my business or existence.
D. Failure to Perform. I fail, in a material manner, to perform any condition or to keep any promise or covenant of this Note which failure continues for a period of 15 days after notice by you of such failure.
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E. Other Documents. A default occurs under the terms of any other Loan Documents and such default continues for a period of 15 days.
F. Other Agreements. I am in default on any other debt or agreement I have with you.
G. Misrepresentation. I make any written statement or provide any financial information that is materially untrue, inaccurate, or conceals a material fact at the time it is made or provided.
H. Judgment. I fail to satisfy or appeal any judgment against me in excess of $500,000.
I. Forfeiture. The Property is used in a manner or for a purpose that threatens confiscation by a legal authority.
J. Name Change. I change my name without notifying you and you suffer a loss as a result of such failure.
K. Property Transfer. I transfer all or a substantial part of my property.
L. Property Value. You determine in good faith that the value of the Property is materially impaired.
M. Material Change. I will notify you if there is a material change in the ownership of my business.
9. DUE ON SALE OR ENCUMBRANCE. You may, at your option, declare the entire balance of this Agreement to be immediately due and payable upon the creation of, or contract for the creation of, any lien, encumbrance, transfer or sale of all or any part of the Property. This right is subject to the restrictions imposed by federal law (12 C.F.R. 591), as applicable.
10. REMEDIES. After I default, and the expiration of a 30 day cure period, you may at your option do any one or more of the following.
A. Acceleration. You may make all or any part of the amount owing by the terms of the Secured Debts immediately due.
B. Sources. You may use any and all remedies you have under state or federal law or in any Loan Document.
C. Insurance Benefits. You may make a claim for any and all insurance benefits or refunds that may be available on my default.
D. Payments Made On My Behalf. Amounts advanced on my behalf will be immediately due and may be added to the Secured Debts.
E. Assembly of Property. You may require me to gather the Property and make it available to you in a reasonable fashion.
F. Repossession. You may repossess the Property so long as the repossession does not involve a breach of the peace or violate any law. You may sell, lease or otherwise dispose of the Property as provided by law. You may apply what you receive from the disposition of the Property to your expenses, your attorneys’ fees and legal expenses (where not prohibited by law), and any debt I owe you. If what you receive from the disposition of the Property does not satisfy the debt, I will be liable for the deficiency (where permitted by law). In some cases, you may keep the Property to satisfy the debt.
Where a notice is required, I agree that ten days prior written notice sent by first class mail to my address listed in this Agreement will be reasonable notice to me under the South Dakota Uniform Commercial Code. If the Property is perishable or threatens to decline speedily in value, you may, without notice to me, dispose of any or all of the Property in a commercially reasonable manner at my expense following any commercially reasonable preparation or processing.
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If any items not otherwise subject to this Agreement are contained in the Property when you take possession, you may hold these items for me at my risk and you will not be liable for taking possession of them.
G. Use and Operation. You may, upon reasonable notice and at reasonable times, enter upon my premises and take possession of all or any part of my property for the purpose of preserving the Property or its value, so long as you do not breach the peace or violate other law. You may use and operate my property for the length of time you feel is necessary to protect your interest, all without payment or compensation to me.
H. Waiver. By choosing any one or more of these remedies you do not give up your right to use any other remedy. You do not waive a default if you choose not to use a remedy. By electing not to use any remedy, you do not waive your right to later consider the event a default and to use any remedies if the default continues or occurs again.
11. WAIVER OF CLAIMS. I waive all claims for loss or damage caused by your acts or omissions where you acted reasonably and in good faith.
12. PERFECTION OF SECURITY INTEREST AND COSTS. I authorize you to file a financing statement and/or security agreement, as appropriate, covering the Property. I will comply with, facilitate, and otherwise assist you in connection with obtaining perfection or control over the Property for purposes of perfecting your security interest under the Uniform Commercial Code. I agree to pay all taxes, fees and costs you pay or incur in connection with preparing, filing or recording any financing statements or other security interest filings on the Property. I agree to pay all actual costs of terminating your security interest.
13. APPLICABLE LAW. This Agreement is governed by the laws of South Dakota, the United States of America, and to the extent required, by the laws of the jurisdiction where the Property is located, except to the extent such state laws are preempted by federal law. In the event of a dispute, the exclusive forum, venue and place of jurisdiction will be in South Dakota, unless otherwise required by law.
14. JOINT AND INDIVIDUAL LIABILITY AND SUCCESSORS. Each Debtor’s obligations under this Agreement are independent of the obligations of any other Debtor. You may xxx each Debtor individually or together with any other Debtor. You may release any part of the Property and I will still be obligated under this Agreement for the remaining Property.
If you assign any of the Secured Debts, you may assign all or any part of this Agreement without notice to me or my consent, and this Agreement will inure to the benefit of your assignee to the extent of such assignment. You will continue to have the unimpaired right to enforce this Agreement as to any of the Secured Debts that are not assigned. This Agreement shall inure to the benefit of and be enforceable by you and your successors and assigns and any other person to whom you may grant an interest in the Secured Debts and shall be binding upon and enforceable against me, my successors, heirs and assigns.
15. AMENDMENT, INTEGRATION AND SEVERABILITY. This Agreement may not be amended or modified by oral agreement. No amendment or modification of this Agreement is effective unless made in writing and executed by you and me. This Agreement and the other Loan Documents are the complete and final expression of the understanding between you and me. If any provision of this Agreement is unenforceable, then the unenforceable provision will be severed and the remaining provisions will still be enforceable.
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SIGNATURES. By signing under seal, I agree to the terms contained in this Agreement. I also acknowledge receipt of a copy of this Agreement.
| DEBTOR: |
| MANITEX LOAD KING, INC. |
| By Xxxxx X. Xxxxxxx (Seal) None |
| XXXXX X XXXXXXX, VICE PRESIDENT |
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