EXHIBIT 10(viii)
BUSINESS SECURITY AGREEMENT
See attached.
Page 76 or 115
[LOGO]
BUSINESS SECURITY AGREEMENT
(FOR USE WITH FIRSTAR LOAN DOCUMENTS ONLY)
This Business Security Agreement ("AGREEMENT") is made and entered into by
the undersigned borrower, guarantor and/or other obligor/pledgor (the
"DEBTOR") in favor of FIRSTAR BANK, N.A. (the "BANK") as of the date set
forth on the last page of this Agreement.
ARTICLE 1. SECURITY INTEREST
1.1 Grant of Security Interest. The Debtor hereby grants a security
interest in and collaterally assigns the Collateral (defined below) to the
Bank to secure all of the Debtor's Obligations (defined below) to the Bank.
The intent of the parties hereto is that the Collateral secures all
Obligations of the Debtor to the Bank, whether or not such Obligations exist
under this Agreement or any other agreements, whether now or hereafter
existing, between the Debtor and the Bank or in favor of the Bank, including,
without limitation, any note, any loan or security agreement, any lease, any
mortgage, deed of trust or other pledge of an interest in real or personal
property, any guaranty, any letter of credit or banker's acceptance, any
agreement for any other services or credit extended by the Bank to the Debtor
even though not specifically enumerated herein, and any other agreement with
the Bank (together and individually, the "LOAN DOCUMENTS").
1.2 "COLLATERAL" means all of the following whether now owned or existing
or hereafter acquired by the Debtor (or by the Debtor with spouse), wherever
located (including all documents, general intangibles, additions and
accessions, spare and repair parts, special tools, replacements, returned or
repossessed goods and books and records relating to the following; and all
proceeds and products of the following) [CHECK ALL THAT APPLY]:
/X/ All accounts, instruments, documents, chattel paper, general intangibles,
contract rights, all investment property (including any securities
entitlements and/or securities accounts held by Debtor), securities and
certificates of deposit, and all funds on deposit with and all property in
the possession of the Bank or any other depository institution;
/X/ All inventory;
/X/ All equipment;
/ / All fixtures; and
/ / Specific Collateral (the following, whether constituting equipment,
inventory or fixtures):
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The terms set forth in this Agreement shall have the meanings set forth in
the Uniform Commercial Code as adopted in the state where the Bank's main
office is located, unless otherwise defined herein.
1.3 "OBLIGATIONS" means all the Debtor's debts (except for consumer credit
if the Debtor is a natural person), liabilities, obligations, covenants,
warranties, and duties to the Bank (plus its affiliates including any credit
card debt due Firstar Bank U.S.A., N.A.), whether now or hereafter existing
or incurred, whether liquidated or unliquidated, whether absolute or
contingent, whether arising out of the Loan Documents or otherwise, and
regardless of whether such Obligations arise out of existing or future credit
granted by the Bank to any Debtor, to any Debtor and others, to others
guaranteed, endorsed or otherwise secured by any Debtor or to any
debtor-in-possession or other successor-in-interest of any Debtor, and
including principal, interest, fees, expenses and charges relating to any of
the foregoing.
ARTICLE II. WARRANTIES AND COVENANTS
In addition to all other warranties and covenants of the Debtor under the
Loan Documents which are expressly incorporated herein as part of this
Agreement and while any part of the credit granted the Debtor under the Loan
Documents is available or any Obligations of the Debtor to the Bank are
unpaid or outstanding, the Debtor continuously warrants and agrees as follows:
2.1 DEBTOR'S NAME, LOCATION; NOTICE OF LOCATION CHANGES. The Debtor's name
and organizational structure has remained the same during the past five (5)
years. The Debtor will continue to use only the name set forth with the
Debtor's signature unless the Debtor gives the Bank prior written notice of
any change. Furthermore, the Debtor shall not do business under another name
nor use any trade name without giving ten (10) days prior written notice to
the Bank. The address appearing in SCHEDULE A below is the Debtor's chief
executive office and principal place of business; and all Collateral shall be
located at such address or the other addresses listed on SCHEDULE A except to
the extent the Debtor has provided written notice to the Bank of any change
of address/new location. SCHEDULE A does not limit the Bank's rights to
Collateral wherever located.
2.2 STATUE OF COLLATERAL. All Collateral is genuine and validly existing.
Except for items of insignificant value or as otherwise reflected in writing
by the Debtor to the Bank under a borrowing base or otherwise, (i) Collateral
constituting inventory, equipment and fixtures is in good condition, not
obsolete and is other currently saleable or usable; and (ii) Collateral
constituting accounts, contract rights, notes, chattel paper and other
third-party obligations to pay is fully enforceable in accordance with its
terms and not subject to return, dispute, setoff, credit allowance or
adjustment, except for discounts for prompt payment. Unless the Debtor
provides the Bank with written notice to the contrary, the Debtor has no
notice or knowledge of anything that would impair the ability of any
third-party obligor to pay any debt to the Debtor when due
Page 77 or 115
2.3 OWNERSHIP; MAINTENANCE OF COLLATERAL; RESTRICTIONS ON LIENS AND
DISPOSITIONS. The Debtor is the sole owner of the Collateral use of all
liens, claims, other encumbrances and security interests except as permitted
in writing by the Bank. The Debtor shall: (i) maintain the Collateral in good
condition and repair (reasonable wear and tear expected), and not permit its
value to be impaired; (ii) not permit waste, removal or loss of identity of
the Collateral; (iii) keep the Collateral free from all liens executions,
attachments, claims, encumbrances and security interests (other than the
Bank's paramount security interest and those permitted in writing by the
Bank); (iv) defend the Collateral against all claims and legal proceedings by
persons other than the Bank; (v) pay and discharge when due all taxes, levies
and other charges or fees upon the Collateral except for payment of taxes
contested by the Debtor in good faith by appropriate proceedings so long as
no levy or lien has been imposed upon the Collateral; (vi) not lease, sell or
transfer the Collateral to any party nor have it to any new location outside
of the ordinary course of business; (vii) not permit the Collateral, without
the consent of the Bank, to become a fixture or an accession to other goods;
(viii) not permit the Collateral to be used in violation of any applicable
law, regulation or policy of insurance; and, (ix) as to the Collateral
consisting of instruments and chattel paper, preserve the Bank's rights in it
against all other parties. Notwithstanding the above, the Debtor may sell,
lease or transfer inventory in the ordinary course of its business provided
that no sale, lease or transfer shall include any transfer or sale in
satisfaction (partial or complete) of a debt owed by the Debtor; title
will not pass to buyer until the Debtor physically delivers the goods to
buyer or the Debtor ships the goods F.O.B. to buyer's destination; and sales
and/or leases to the Debtor's affiliates shall be for fair market value, cash
on delivery, with the proceeds remitted to the Bank.
2.4 MAINTENANCE OF SECURITY INTEREST; PURCHASE MONEY SECURITY INTERESTS.
The Debtor shall take any action requested by the Bank to preserve the
Collateral and to establish the value of, the priority of, to perfect, to
continue the perfection of or to enforce the Bank's interest in the
Collateral and the Bank's rights under this Agreement; and shall pay all
costs and expenses related thereto. The Debtor and the Bank intend to
maintain the full effect of any purchase money security interest granted in
favor of the Bank notwithstanding the act that the Collateral so purchased is
also pledged as security for other Obligations under the Loan Documents.
2.5 COLLATERAL INSPECTIONS; MODIFICATIONS AND CHANGES IN COLLATERAL. At
reasonable times, the Bank may examine the Collateral and the Debtor's
records pertaining to it, wherever located, and make copies of such records
at the Debtor's expense; and the Debtor shall assist the Bank is so doing.
Without the Bank's prior written consent, the Debtor shall not alter, modify,
discount, extend, renew or cancel any Collateral, except for ordinary
discounts for prompt payment on accounts, physical modifications to the
inventory occurring in the manufacturing process or alterations to equipment
which do not materially affect its value. The Debtor shall promptly notify
the Bank in writing of any material change in the condition of the Collateral
and of any change in location of the Collateral.
2.6 COLLATERAL RECORDS, REPORTS AND STATEMENTS. The Debtor shall keep
accurate and complete records respecting the Collateral in such form as the
Bank may approve. At such times as the Bank may require, the Debtor shall
furnish to the Bank any records/information the Bank might require,
including, without limitation, a statement certified by the Debtor and in
such form and containing such information as may be prescribed by the Bank
showing the current status and value of Collateral.
2.7 CHATTEL PAPER, INSTRUMENTS, ETC. Chattel paper, instruments, drafts,
notes, acceptances, and other documents which constitute Collateral shall be
on forms satisfactory to the Bank. The Debtor shall promptly xxxx chattel
paper to indicate conspicuously the Bank's security interest therein, shall
not deliver any chemical paper or negotiable instruments to any other entity
and, upon request, shall deliver all original chattel paper, instruments,
drafts, notes, acceptances and other documents which constitute Collateral to
the Bank.
2.8 UNITED STATES GOVERNMENT CONTRACTS. If any accounts or contract rights
arose out of contracts with the United States or any of its departments,
agencies or instrumentalities, the Debtor shall promptly notify the Bank and
execute any writings required by the Bank so that all money due or to become
due under such contracts shall be assigned to the Bank under the Federal
Assignment of Claims Act.
2.9 ENVIRONMENTAL MATTERS. Except as disclosed in a written schedule
attached to this Agreement (if no schedule is attached, there are no
exceptions), there exists no uncorrected violation by the Debtor of any
federal, state or local laws (including statutes, regulations, ordinances or
other governmental restrictions and requirements) relating to the discharge
of air pollutants, water pollutants or process waste water or otherwise
relating to the environment or Hazardous Substances as hereinafter defined,
whether such laws currently exist or are enacted in the future (collectively
"ENVIRONMENTAL LAWS"). The term "HAZARDOUS SUBSTANCES" shall mean any
hazardous or toxic wastes, chemicals or other substances, the generation,
possession or existence of which is prohibited or governed by any
Environmental Laws. The Debtor is not subject to any judgment, decree, order
or citation, or a party to (or threatened with) any litigation or
administrative proceeding, which asserts that the Debtor (i) has violated any
Environmental Laws; (ii) is required to clean up, remove or take remedial or
other action with respect to any Hazardous Substances (collectively "REMEDIAL
ACTION"); or (iii) is required to pay all or a portion of the cost of any
Remedial Action, as a potentially responsible party. There are not now, nor
to the Debtor's knowledge after reasonable investigation have there ever
been, any Hazardous Substances (or tanks or other facilities for the storage
of Hazardous Substances) stored, deposited, recycled or disposed of on, under
or at any real estate owned or occupied by the Debtor during the periods that
the Debtor owned or occupied such real estate, which if present on the real
estate or in soils or ground water, could require Remedial Action. To the
Debtor's knowledge, there are no proposed or pending changes in Environmental
Laws which would adversely affect the Debtor or its business, and there are
no conditions existing currently or likely to exist while the Loan Documents
are in effect which would subject the Debtor to Remedial Action or other
liability. The Debtor currently complies with and will continue to timely
comply with all applicable Environmental Laws; and will provide the Bank,
immediately upon receipt, copies of any correspondence, notice, complaint,
order or other document from any source asserting or alleging any
circumstance or condition which requires or may require a financial
contribution by the Debtor or Remedial Action or other response by or on the
part of the Debtor under Environmental Laws, or which seeks damages or civil,
criminal or punitive penalties from the Debtor for an alleged violation of
Environmental Laws.
2.10 INSURANCE. The Debtor will maintain insurance to such extent, covering
such risks and with such insurers as is usual and customary for businesses
operating similar properties, and as is satisfactory to the Bank, including
insurance for fire and other risks insured against by extended or
comprehensive coverage, public liability insurance and workers' compensation
insurance; and will designate the Bank as loss payee with a "Lender's Loss
Payable" endorsement on any casualty policies and take such other action as
the Bank may reasonably request to ensure that the Bank will receive (subject
to no other interests) the insurance proceeds of the Collateral. The Debtor
hereby assigns all insurance proceeds to and irrevocably directs, while any
Obligations remain unpaid, any insurer to pay to the Bank the proceeds of all
such insurance and any premium refund; and authorizes the Bank to endorse the
Debtor's name to effect the same, to make, adjust or settle, in the Debtor's
name, any claim on any insurance policy relating to the Collateral; and, at
the option of the Bank, to apply such proceeds and refunds to the Obligations
or to restoration of the Collateral, returning any excess to the Debtor.
Page 78 or 115
ARTICLE III. COLLECTIONS
3.1 DEPOSIT WITH THE BANK. At any time the Bank may require that all proceeds
of Collateral received by the Debtor shall be held by the Debtor upon an
express trust for the Bank, shall not be commingled with any other funds or
property of the Debtor and shall be turned over to the Bank in precisely the
form received (but endorsed by the Debtor, if necessary for collection) not
later than the business day following the day of their receipt. All proceeds
of Collateral received by the Bank directly or from the Debtor shall be
applied against the obligations in such order and at such times as the Bank
shall determine.
ARTICLE IV. RIGHTS AND DUTIES OF THE BANK
In addition to all other rights (including setoff) and duties of the Bank
under the Loan Documents which are expressly incorporated herein as a part of
this Agreement, the following provisions shall also apply:
4.1 AUTHORITY TO PERFORM FOR THE DEBTOR. The Debtor presently appoints any
officer of the Bank as the Debtor's attorney-in-fact (coupled with an interest
and irrevocable while any Obligations remain unpaid) to do any of the
following upon default by the Debtor hereunder (notwithstanding any notice
requirements or grace/cure periods under this or other agreements between the
Debtor and the Bank): (i) to endorse or place the name of the Debtor on any
invoice or document of title relating to accounts, drafts against customers,
notices to customers, notes, acceptances, assignments of government
contracts, instruments, financing statements, checks, drafts, money orders,
insurance claims or payments or other documents evidencing payment or a
security interest relating to the Collateral; (ii) to receive, open and
dispose of all mail addressed to the Debtor and to notify the Post Office
authorities to change the address for delivery of mail addressed to the
Debtor to an address designated by the Bank; (iii) to do all such other acts
and things necessary to carry out the Debtor's duties under this Agreement
and the other Loan Documents; and (iv) to perfect, protect and/or realize
upon the Bank's interest in the Collateral. If the Collateral includes funds
or property in depository accounts, the Debtor authorizes each of its
depository institutions to remit to the Bank, without liability to the Debtor,
all of the Debtor's funds on deposit with such institution upon written
direction by the Bank after default by the Debtor hereunder. All acts by the
Bank are hereby ratified and approved, and the Bank shall not be liable for
any acts of commission or omission, nor for any errors of judgment or
mistakes of fact or law.
4.2 VERIFICATION AND NOTIFICATION; BANK'S RIGHTS. The Bank may verify
Collateral in any manner, and the Debtor shall assist in the Bank in so
doing. Upon the occurrence of a default hereunder, the bank may at any time
and the Debtor shall, upon request of the Bank, notify the account debtors to
make payment directly to the Bank; and the Bank may enforce collection of,
sell, settle, compromise, extend or renew the indebtedness of such account
debtors; all without notice to or the consent of the Debtor. Until account
debtors are so notified, the Debtor, as agent of the Bank, shall make
collections on the Collateral. The Bank may at any time notify any bailee
possessing Collateral of the Bank's security interest, and upon the occurence
of a default hereunder, direct such bailee to turn over the Collateral to the
Bank.
4.3 COLLATERAL PRESERVATION. The Bank shall use reasonable care in the
custody and preservation of any Collateral in its physical possession
but in determining such standard of reasonable care, the Debtor expressly
acknowledges that the Bank has no duty to: (i) insure the Collateral against
hazards; (ii) ensure that the Collateral will not cause damage to property or
injury to third parties; (iii) protect it from seizure, theft or conversion
by third parties, third parties' claims or acts of God; (iv) give to the
Debtor any notices received by the Bank regarding the Collateral; (v) perfect
or continue perfection of any security interest in favor of the Debtor; (vi)
perform any services, complete any work-in-process or take any other action
in connection with the management or maintenance of the Collateral; or (vii)
xxx or otherwise effect collection upon any accounts even if the Bank shall
have made a demand for payment upon individual account debtors.
Notwithstanding any failure by the Bank to use reasonable care in preserving
the Collateral, the Debtor agrees that the Bank shall not be liable for
consequential or special damages arising therefrom.
ARTICLE V. DEFAULTS AND REMEDIES
The Bank may enforce its rights and remedies under this Agreement upon
default. A default shall occur if the Debtor fails to comply with the terms
of any Loan Documents (including this Agreement or any guaranty by the
Debtor), a demand for payment is made under a demand loan, or any other
obligor fails to comply with the terms of any Loan Documents for which the
Debtor has given the Bank a guaranty or pledge.
5.1 CUMULATIVE REMEDIES; NOTICE; WAIVER. In addition to the remedies for
default set forth in the Loan Documents, the Bank upon default shall have all
other rights and remedies for default provided by the Uniform Commercial
Code, as well as any other applicable law and this Agreement, INCLUDING,
WITHOUT LIMITATION, THE RIGHT TO REPOSSESS, RENDER UNUSABLE AND/OR DISPOSE OF
THE COLLATERAL WITHOUT JUDICIAL PROCESS. The rights and remedies specified
herein are cumulative and are not exclusive of any rights or remedies which
the Bank would otherwise have. With respect to such rights and remedies:
(a) ASSEMBLING COLLATERAL; STORAGE; USE OF THE DEBTOR' NAME/OTHER
PROPERTY. The Bank may require the Debtor to assemble the
Collateral and to make it available to the Bank at any convenient
place designated by the Bank. The Debtor recognizes that the Bank
will not have an adequate remedy in Law if this obligation is
breached and accordingly, Debtor's obligation to assemble the
Collateral shall be specifically enforceable. The Bank shall have
the right to take immediate possession of said Collateral and the
Debtor irrevocably authorizes the Bank to enter any of the
premises wherever said Collateral shall be located, and to store,
repair, maintain, assemble, manufacture, advertise and sell, lease
or dispose of (by public sale or otherwise) the same on said
premises until sold, all without charge or rent to the Bank. The
Bank is hereby granted an irrevocable license to use, without
charge, the Debtor's equipment, inventory, labels, patents,
copyrights, franchises, names, trade secrets, trade names,
trademarks and advertising matter and any property of a similar
nature; and the Debtor's rights under all licenses and franchise
agreements shall inure to the Bank's benefit. Further, the Debtor
releases the Bank from obtaining a bond or surety with respect to
any repossession and/or disposition of the Collateral.
(b) NOTICE OF DISPOSITION. Written notice, when required by law, sent
to any address of the Debtor in this Agreement, at least ten (10)
calendar days (counting the day of sending) before the date of a
proposed disposition of the Collateral is reasonable notice.
Notification to account debtors by the Bank shall not be deemed a
disposition of the Collateral.
Page 79 or 115
(c) POSSESSION OF COLLATERAL/COMMERCIAL REASONABLENESS. The Bank shall
not, at any time, be obligated to either take or retain possession
or control of the Collateral. With respect to Collateral in the
possession or control of the Bank, the Debtor and the Bank agree
that as a standard for determining commercial reasonableness, the
Bank need not liquidate, collect, sell or otherwise dispose of any
of the Collateral if the Bank believes, in good faith, that
disposition of the Collateral would not be commercially
reasonable, would subject the Bank to third-party claims or
liability, that other potential purchasers could be attracted or
that a better price could be obtained if the Bank held the
Collateral for up to one year; and the Bank shall not then be
deemed to have retained the Collateral in satisfaction of the
Obligations. Furthermore, the Bank may sell the Collateral on
credit (and reduce the Obligations only when payment is received
from the buyer), at wholesale and/or with or without an agent or
broker, and the Bank need not complete, process or repair the
Collateral prior to disposition.
(d) WAIVER BY THE BANK. The Bank may permit the Debtor to attempt to
remedy any default without waiving its rights and remedies
hereunder, and the Bank may waive any default without waiving any
other subsequent or prior default by the Debtor. Furthermore,
delay on the part of the Bank in exercising any right, power or
privilege hereunder or at law shall not operate as a waiver
thereof, nor shall any single or partial exercise of such right,
power or privilege preclude other exercise thereof or the exercise
of any other right, power or privilege. NO WAIVER OR SUSPENSION
SHALL BE DEEMED TO HAVE OCCURRED UNLESS THE BANK HAS EXPRESSLY
AGREED IN WRITING SPECIFYING SUCH WAIVER OR SUSPENSION.
ARTICLE VI. MISCELLANEOUS
All other provisions in the Loan Documents are expressly incorporated as a
part of this Agreement
ALL DOCUMENTS ATTACHED HERETO, INCLUDING ANY APPENDICES, SCHEDULES, RIDERS,
AND EXHIBITS TO THIS AGREEMENT, ARE HEREBY EXPRESSLY INCORPORATED BY REFERENCE.
IN WITNESS WHEREOF, the undersigned has/have executed this BUSINESS SECURITY
AGREEMENT as of SEPTEMBER 26, 2000.
(Individual Debtor) UNIVERSAL MFG. CO.
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-------------------------(SEAL) Debtor Name (Organization)
Debtor Name N/A a NEBRASKA Corporation
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-------------------------(SEAL) By Xxxxxx X. Xxxxxx
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Debtor Name N/A Name and Title XXXXXX X XXXXXX, PRESIDENT
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By
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Name and Title------------------------------
SCHEDULE A
IDENTIFICATION, CHIEF EXECUTIVE OFFICE AND COLLATERAL LOCATIONS LIST
Taxpayer Identification Number: 00-0000000
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(or Social Security Number) Name of Landlord or Warehouse (if applicable)
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Address of Chief Executive Office: Street
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City State Zip Code
000 XXXXXXXX XXXXXX
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Street
ALGONA, IA 50511-0190
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City State Zip Code Name of Landlord or Warehouse (if applicable)
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Street
Other Collateral Locations List
(Include name of third party ---------------------------------------------
[landlord, warehouse, etc.] City State Zip Code
if applicable and collateral location address)
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Name of Landlord or Warehouse (if applicable) Name of Landlord or Warehouse (if applicable)
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Street Street
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City State Zip Code City State Zip Code
Page 80 or 115
