COMMERCIAL PLEDGE AGREEMENT
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Principal
$2,800,327.00
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Loan
date
04-12-2006
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Maturity
04-17-2009
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Loan
No.
89528
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Call/CoB
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Account
730738754
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Officer
DDC
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Initials
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References
in the shaded area are for Lender's use only and do not limit the
applicability of this document to any particular loan or
item.
Any
item above containing **** has been omitted due to text length
limitations.
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Borrower: First
Industries Capital Corporation Lender: THE
BANK
OF UNION
(TIN:
00-0000000) THE
BANK
OF UNION, EL RENO
P.O.
Box 705 0000
X. XXXXXXX XXXX
XX.
Oklahoma
City, OK 73101 P.O.
BOX
1010
EL
RENO, OK 73036
(000)
000-0000
Grantor: SBL
Corporation
(TIN:
00-0000000)
16
S.
Pennsylvania
Oklahoma
City, OK 73101
THIS
COMMERCIAL PLEDGE AGREEMENT dated April 12, 2006, is made and executed
among SBL Corporation ("Grantor"); First Industries Capital Corporation
("Borrower"); and THE BANK OF UNION ("Lender").
GRANT
OF SECURITY INTEREST.
For
valuable consideration, Grantor grants to Lender a security interest in the
Collateral to secure the Indebtedness and agrees that Xxxxxx shall have the
rights stated in this Agreement with respect to the Collateral, in addition
to
all other rights which Lender may have by law.
COLLATERAL
DESCRIPTION.
The word
"Collateral" as used in this Agreement means Grantor's present and future
rights, title and interest in and to, together with any and all present and
future additions thereto, substitutions therefore, and replacements thereof,
together with any and all present and future certificates and/or instruments
evidencing any Stock and further together with all Income and Proceeds as
described herein:
20,000
Shares of SBL Corporation Stock, Cusip No. 10763
20,000
Shares of SBL Corporation Stock, Cusip No. 10764
20,000
Shares of SBL Corporation Stock, Cusip No. 10765
20,000
Shares of SBL Corporation Stock, Cusip No. 10766
20,000
Shares of SBL Corporation Stock, Cusip No. 10767
20,000
Shares of SBL Corporation Stock, Cusip No. 10768
20,000
Shares of SBL Corporation Stock, Cusip No. 10769
20,000
Shares of SBL Corporation Stock, Cusip No. 10770
20,000
Shares of SBL Corporation Stock, Cusip No. 10771
20,000
Shares of SBL Corporation Stock, Cusip No. 10772
20,000
Shares of SBL Corporation Stock, Cusip No. 10773
20,000
Shares of SBL Corporation Stock, Cusip No. 10774
20,000
Shares of SBL Corporation Stock, Cusip No. 10775
20,000
Shares of SBL Corporation Stock, Cusip No. 10776
20,000
Shares of SBL Corporation Stock, Cusip No. 10777
20,000
Shares of SBL Corporation Stock, Cusip No. 10778
20,000
Shares of SBL Corporation Stock, Cusip No. 10779
20,000
Shares of SBL Corporation Stock, Cusip No. 10780
20,000
Shares of SBL Corporation Stock, Cusip No. 10781
20,000
Shares of SBL Corporation Stock, Cusip No. 10782
20,000
Shares of SBL Corporation Stock, Cusip No. 10783
1
CROSS-COLLATERALIZATION.
In
addition to the Note, this Agreement secures all obligations, debts and
liabilities, plus interest thereon, of either Grantor or Borrower to Lender,
or
any one or more of them, as well as all claims by Xxxxxx against Borrower and
Grantor or any one or more of them, owed to Lender, whether of a like nature
to
the Note Indebtedness or not, whether arising from a loan or a purchased
obligation, whether incurred for a consumer or a business purpose, whether
now
existing or hereafter arising, whether related to unrelated to the purpose
of
the Note, whether voluntary or otherwise, whether due or not due, direct or
indirect, determined or undetermined, absolute or contingent, liquidated or
unliquidated, whether Borrower or Grantor may be liable individually or jointly
with others, whether obligated as guarantor, surety, accommodation party or
otherwise, and whether recovery upon such amounts may be or hereafter may become
barred by any statute of limitations, and whether the obligation to repay such
amounts may be or hereafter may become otherwise unenforceable.
XXXXXXXX'S
WAIVERS AND RESPONSIBILITIES.
Except
as otherwise required under this Agreement or by applicable law,
(A) Borrower agrees that Lender need not tell Borrower about any action or
inaction Lender takes in connection with this Agreement; (B) Borrower
assumes the responsibility for being and keeping informed about the Collateral;
and (C) Borrower waives any defenses that may arise because of any action
or inaction of Lender, including without limitation any failure of Lender to
realize upon the Collateral or any delay by Lender in realizing upon the
Collateral; and Xxxxxxxx agrees to remain liable under the Note no matter what
action Lender takes or fails to take under this Agreement.
XXXXXXX'S
REPRESENTATIONS AND WARRANTIES.
Grantor
warrants that: (A) this Agreement is executed at Borrower's request and not
at the request of Xxxxxx; (B) Grantor has the full right, power and
authority to enter into this Agreement and to pledge the Collateral to Lender;
(C) Grantor has established adequate means of obtaining from Borrower on a
continuing basis information about Borrower's financial condition; and
(D) Lender has made no representation to Grantor about Borrower or
Xxxxxxxx's creditworthiness.
GRANTOR'S
WAIVERS.
Grantor
waives all requirements of presentment, protest, demand, and notice of dishonor
or non-payment to Borrower or Grantor, or any other party to the Indebtedness
or
the Collateral. Lender may do any of the following with respect to any
obligation of any Borrower, without first obtaining the consent of Grantor:
(A) grant any extension of time for any payment, (B) grant any
renewal, (C) permit any modification of payment terms or other terms, or
(D) exchange or release any Collateral or other security. No such act or
failure to act shall affect Xxxxxx's rights against Grantor or the
Collateral.
RIGHT
OF SETOFF.
To the
extent permitted by applicable law, Lender reserves a right of setoff in all
Grantor's accounts with Lender (whether checking, savings, or some other
account). This includes all accounts Grantor holds jointly with someone else
and
all accounts Grantor may open in the future. However, this does not include
any
IRA or Xxxxx accounts, or any trust accounts for which setoff would be
prohibited by law. Grantor authorizes Xxxxxx, to the extent permitted by
applicable law, to charge or setoff all sums owing on the Indebtedness against
any and all such accounts.
REPRESENTATIONS
AND WARRANTIES WITH RESPECT TO THE COLLATERAL.
Grantor
represents and warrants to Lender that:
Ownership.
Grantor
is the lawful owner of the Collateral free and clear of all security interests,
liens, encumbrances and claims of others except as disclosed to and accepted
by
Xxxxxx in writing prior to execution of this Agreement.
Authority;
Binding Effect.
Grantor
has the full right, power and authority to enter into this Agreement and to
grant a security interest in the Collateral to Lender. This Agreement is binding
upon Grantor as well as Grantor's successors and assigns, and is legally
enforceable in accordance with its terms. The foregoing representations and
warranties, and all other representations and warranties contained in this
Agreement are and shall be continuing in nature and shall remain in full force
and effect until such time as this Agreement is terminated or cancelled as
provided herein.
No
Further Assignment.
Grantor
has not, and shall not, sell, assign, transfer, encumber or otherwise dispose
of
any of Grantor's rights in the Collateral except as provided in this
Agreement.
No
Defaults.
There
are no defaults existing under the Collateral, and there are no offsets or
counterclaims to the same. Grantor will strictly and promptly perform each
of
the terms, conditions, covenants and agreements, if any, contained in the
Collateral which are to be performed by Grantor.
No
Violation.
The
execution and delivery of this Agreement will not violate any law or agreement
governing Grantor or to which Grantor is a party, and its certificate or
articles of incorporation and bylaws do not prohibit any term or condition
of
this Agreement.
Financing
Statements.
Grantor
authorizes Lender to file a UCC financing statement, or alternatively, a copy
of
this Agreement to perfect Xxxxxx's security interest. At Xxxxxx's request,
Xxxxxxx additionally agrees to sign all other documents that are necessary
to
perfect, protect, and continue Xxxxxx's security interest in the Property.
Grantor will pay all filing fees, title transfer fees, and other fees and costs
involved unless prohibited by law or unless Lender is required by law to pay
such fees and costs. Grantor irrevocably appoints Xxxxxx to execute lien entry
forms and documents necessary to transfer title if there is a default. Lender
may file a copy of this Agreement as a financing statement. If Grantor changes
Grantor's name or address, or the name or address of any person granting a
security interest under this Agreement changes, Grantor will promptly notify
the
Lender of such change.
XXXXXX'S
RIGHTS AND OBLIGATIONS WITH REXPECT TO THE COLLATERAL.
Lender
may hold the Collateral until all Indebtedness has been paid and satisfied.
Thereafter Lender may deliver the Collateral to Grantor or to any other owner
of
the Collateral. Lender shall have the following rights in addition to all other
rights Lender may have by law:
2
Maintenance
and Protection of Collateral.
Lender
may, but shall not be obligated to, take such steps as it deems necessary or
desirable to protect, maintain, insure, store, or care for the Collateral,
including paying of any liens or claims against the Collateral. This may include
such things as hiring other people, such as attorneys, appraisers or other
experts. Xxxxxx may charge Grantor for any cost incurred in so doing. When
applicable law provides more than one method of perfection of Xxxxxx's security
interest, Xxxxxx may choose the method(s) to be used. If the Collateral consists
of stock, bonds or other investment property for which no certificate has been
issued, Grantor agrees, at Xxxxxx's request, either to request issuance of
an
appropriate certificate or to give instructions on Xxxxxx's forms to the issuer,
transfer agent, mutual fund company, or broker, as the case may be, to record
on
its books or records Xxxxxx's security interest in the Collateral. Xxxxxxx
also
agrees to execute any additional documents, including but not limited to, a
control agreement, necessary to perfect Xxxxxx's security interest as Xxxxxx
may
desire.
Income
and Proceeds from the Collateral.
Lender
may receive all Income and Proceeds and add it to the Collateral. Xxxxxxx agrees
to deliver to Xxxxxx immediately upon receipt, in the exact form received and
without commingling with other property, all Income and Proceeds from the
Collateral which may be received by, paid, or delivered to Grantor or for
Grantor's account, whether as an addition to, in discharge of, in substitution
of, or in exchange for any of the Collateral.
Application
of Cash.
At
Lender's option, Lender may apply any cash, whether included in the Collateral
or received as Income and Proceeds or through liquidation, sale, or retirement,
of the Collateral, to the satisfaction of the Indebtedness or such portion
thereof as Lender shall choose, whether or not matured.
Transactions
with Others.
Lender
may (1) extend time for payment or other performance, (2) grant a
renewal or change in terms or conditions, or (3) compromise, compound or
release any obligation, with any one or more Obligors, endorsers, or Guarantors
of the Indebtedness as Lender deems advisable, without obtaining the prior
written consent of Grantor, and no such act or failure to act shall affect
Lender's rights against Grantor or the Collateral.
All
Collateral Secures Indebtedness.
All
Collateral shall be security for the Indebtedness, whether the Collateral is
located at one or more offices or branches of Lender. This will be the case
whether or not the office or branch where Grantor obtained Grantor's loan knows
about the Collateral or relies upon the Collateral as security. In the event
Grantor comes into the possession of any Collateral, Grantor will deliver it
immediately to Lender.
Collection
of Collateral.
Lender
at Lender's option may, but need not, collect the Income and Proceeds directly
from the Obligors. Grantor authorizes and directs the Obligors, if Xxxxxx
decides to collect the Income and Proceeds, to pay and deliver to Lender all
Income and Proceeds from the Collateral and to accept Xxxxxx's receipt for
the
payments.
Power
of Attorney.
Grantor
irrevocably appoints Lender as Grantor's attorney-in-fact, with full power
of
substitution, (a) to demand, collect, receive, receipt for, sue and recover
all Income and Proceeds and other sums of money and other property which may
now
or hereafter become due, owing or payable from the Obligors in accordance with
the terms of the Collateral; (b) to execute, sign and endorse any and all
instruments, receipts, checks, drafts and warrants issued in payment for the
Collateral; (c) to settle or compromise any and all claims arising under
the Collateral, and in the place and stead of Grantor, execute and deliver
Grantor's release and acquittance for Grantor; (d) to file any claim or
claims or to take any action or institute or take part in any proceedings,
either in Xxxxxx's own name or in the name of Grantor, or otherwise, which
in
the discretion of Lender may seem to be necessary or advisable; and (e) to
execute in Grantor's name and to deliver to the Obligors on Grantor's behalf,
at
the time and in the manner specified by the Collateral, any necessary
instruments or documents.
Protection
of Security Interest.
Upon
Xxxxxx's request, Grantor will deliver to Lender any and all of the documents
evidencing or constituting the Collateral. When applicable law provides more
than one method of perfection of Xxxxxx's security interest, Xxxxxx may choose
the method(s) to be used. Upon Xxxxxx's request, Grantor will sign and deliver
any writings necessary to perfect Xxxxxx's security interest. If any of the
Collateral consists of securities for which no certificate has been issued,
Grantor agrees, at Xxxxxx's option, either to request issuance of an appropriate
certificate or to execute appropriate instructions on Xxxxxx's forms instructing
the issuer, transfer agent, mutual fund company, or broker, as the case may
be,
to record on its books or records, by book-entry or otherwise, Xxxxxx's security
interest in the Collateral. Grantor hereby appoints Xxxxxx as Xxxxxxx's
irrevocable attorney-in-fact for the purpose of executing any documents
necessary to perfect, amend, or to continue the security interest granted in
this Agreement or to demand termination of filings of other secured
parties.
XXXXXX'S
EXPENDITURES.
If any
action or proceeding is commenced that would materially affect Xxxxxx's interest
in the Collateral or if Grantor fails to comply with any provision of this
Agreement or any Related Documents, including but not limited to Grantor's
failure to discharge or pay when due any amounts Grantor is required to
discharge or pay under this Agreement or any Related Documents, Lender on
Grantor's behalf may (but shall not be obligated to) take any action that Lender
deems appropriate, including but not limited to discharging or paying all taxes,
liens, security interests, encumbrances and other claims, at any time levied
or
placed on the Collateral and paying all costs for insuring, maintaining and
preserving the Collateral. All such expenditures incurred or paid by Lender
for
such purposes will then bear interest at the rate charged under the Note or
at
the highest rate authorized by law, from the date incurred or paid by Xxxxxx
to
the date of repayment by Xxxxxxx. All such expenses will become a part of the
Indebtedness and, at Lender's option, will (A) be payable on demand;
(B) be added to the balance of the Note and be apportioned among and be
payable with any installment payments to become due during either (1) the
term of any applicable insurance policy; or (2) the remaining term of the
Note; or (C) be treated as a balloon payment which will be due and payable
at the Note's maturity. The Agreement also will secure payment of these amounts.
Such right shall be in addition to all other rights and remedies to which Xxxxxx
may be entitled upon Default. If Lender is required by law to give Grantor
notice before or after Lender
3
makes
an
expenditure, Xxxxxxx agrees that notice sent by regular mail at least five
(5)
days before the expenditure is made or notice delivered two (2) days before
the
expenditure is made is sufficient, and that notice within sixty (60) days after
the expenditure is made is reasonable.
LIMITATIONS
ON OBLIGATIONS OF LENDER.
Lender
shall use ordinary reasonable care in the physical preservation and custody
of
the Collateral in Xxxxxx's possession, but shall have no other obligation to
protect the Collateral or its value. In particular, but without limitation,
Lender shall have no responsibility for (A) any depreciation in value of
the Collateral or for the collection or protection of any Income and Proceeds
from the Collateral, (B) preservation of rights against parties to the
Collateral or against third persons, (C) ascertaining any maturities,
calls, conversions, exchanges, offers, tenders, or similar matters relating
to
any of the Collateral, or (D) informing Grantor about any of the above,
whether or not Lender has or is deemed to have knowledge of such matters. Except
as provided above, Lender shall have no liability for depreciation or
deterioration of the Collateral.
DEFAULT.
Each of
the following shall constitute an Event of Default under this
Agreement:
Payment
Default.
Borrower
fails to make any payment when due under the Indebtedness.
Other
Defaults.
Borrower
or Grantor fails to comply with or to perform any other term, obligation,
covenant or condition contained in this Agreement or in any of the Related
Documents or to comply with or to perform any term, obligation, covenant or
condition contained in any other agreement between Lender and Borrower or
Grantor.
False
Statements.
Any
warranty, representation or statement made or furnished to Lender by Borrower
or
Grantor or on Borrower's or Grantor's behalf under this Agreement or the Related
Documents is false or misleading in any material respect, either now or at
the
time made or furnished or becomes false or misleading at any time
thereafter.
Defective
Collateralization.
This
Agreement or any of the Related Documents ceases to be in full force and effect
(including failure of any collateral document to create a valid and perfected
security interest or lien) at any time and for any reason.
Insolvency.
The
dissolution or termination of Borrower's or Grantor's existence as a going
business, the insolvency of Borrower or Grantor, the appointment of a receiver
for any part of Xxxxxxxx's or Grantor's property, any assignment for the benefit
of creditors, any type of creditor workout, or the commencement of any
proceeding under any bankruptcy or insolvency laws by or against Borrower or
Grantor.
Creditor
or Forfeiture Proceedings.
Commencement of foreclosure or forfeiture proceedings, whether by judicial
proceedings, self-help, repossession or any other method, by any creditor of
Borrower or Grantor or by any governmental agency against any collateral
securing the Indebtedness. This includes a garnishment of any of Borrower's
or
Grantor's accounts, including deposit accounts, with Lender. However, this Event
of Default shall not apply if there is a good faith dispute by Borrower or
Grantor as to the validity or reasonableness of the claim which is the basis
of
the creditor or forfeiture proceeding and if Borrower or Grantor gives Xxxxxx
written notice of the creditor or forfeiture proceeding and deposits with Lender
monies or a surety bond for the creditor or forfeiture proceeding, in an amount
determined by Lender, in its sole discretion, as being an adequate reserve
or
bond for the dispute.
Events
Affecting Guarantor.
Any of
the preceding events occurs with respect to any Guarantor of any of the
Indebtedness or Guarantor dies or becomes incompetent or revokes or disputes
the
validity of, or liability under, any Guaranty of the Indebtedness.
Adverse
Change.
A
material adverse change occurs in Borrower's or Grantor's financial condition,
or Xxxxxx believes the prospect of payment or performance of the Indebtedness
is
impaired.
Insecurity.
Lender
in good faith believes itself insecure.
Cure
Provisions.
If any
default, other than a default in payment is curable and if Grantor has not
been
given a notice of a breach of the same provision of this Agreement within the
preceding twelve (12) months, it may be cured if Grantor, after receiving
written notice from Lender demanding cure of such default: (1) cures the
default within fifteen (15) days; or (2) if the cure requires more than
fifteen (15) days, immediately initiates steps which Lender deems in Lender's
sole discretion to be sufficient to cure the default and thereafter continue
and
completes all reasonable and necessary steps sufficient to produce compliance
as
soon as reasonably practical.
RIGHTS
AND REMEDIES ON DEFAULT.
If an
Event of Default occurs under this Agreement, at any time thereafter, Lender
may
exercise any one or more of the following rights and remedies:
Accelerate
Indebtedness.
Declare
all Indebtedness, including any prepayment penalty which Borrower would be
required to pay, immediately due and payable, without notice of any kind to
Borrower or Grantor.
Collect
the Collateral.
Collect
any of the Collateral and, at Xxxxxx's option and to the extent permitted by
applicable law, retain possession of the Collateral while suing on the
Indebtedness.
Sell
the Collateral.
Sell the
Collateral, at Xxxxxx's discretion, as a unit or in parcels, at one or more
public or private sales. Unless the Collateral is perishable or threatens to
decline speedily in value or is of a type customarily sold on a recognized
market, Lender shall give or mail to Grantor, and other persons as required
by
law, notice at least ten (10)
4
days
in
advance of the time and place of any public sale, or of the time after which
any
private sale may be made. However, no notice need be provided to any person
who,
after an Event of Default occurs, enters into and authenticates an agreement
waiving that person's right to notification of sale. Grantor agrees that any
requirement of reasonable notice as to Grantor is satisfied if Lender mails
notice by ordinary mail addressed to Grantor at the last address Grantor has
given Lender in writing. If a public sale is held, there shall be sufficient
compliance with all requirements of notice to the public by a single publication
in any newspaper of general circulation in the county where the Collateral
is
located, setting forth the time and place of sale and a brief description of
the
property to be sold. Lender may be a purchaser at any public sale.
Sell
Securities.
Sell any
securities included in the Collateral in a manner consistent with applicable
federal and state securities laws. If, because of restrictions under such laws,
Xxxxxx is unable, or believes Xxxxxx is unable, to sell the securities in an
open market transaction, Grantor agrees that Lender will have no obligation
to
delay sale until the securities can be registered. Then Lender may make a
private sale to one or more persons or to a restricted group of persons, even
though such sale may result in a price that is less favorable than might be
obtained in an open market transaction. Such a sale will be considered
commercially reasonable. If any securities held as Collateral are "restricted
securities" as defined in the Rules of the Securities and Exchange Commission
(such as Regulation D or Rule 144) or the rules of state securities
departments under state "Blue Sky" laws, or if Grantor or any other owner of
the
Collateral is an affiliate of the issuer of the securities. Xxxxxxx agrees
that
neither Grantor, not any member of Xxxxxxx's family, nor any other person
signing this Agreement will sell or dispose of any securities of such issuer
without obtaining Xxxxxx's prior written consent.
Rights
and Remedies with Respect to Investment Property, Financial Assets and Related
Collateral.
In
addition to other rights and remedies granted under this Agreement and under
applicable law, Lender may exercise any or all of the following rights and
remedies: (1) register with any issuer or broker or other securities
intermediary any of the Collateral consisting of investment property or
financial assets (collectively herein, "investment property") in Lender's sole
name or in the name of Xxxxxx's broker, agent or nominee; (2) cause any
issuer, broker or other securities intermediary to deliver to Lender any of
the
Collateral consisting of securities, or investment property capable of being
delivered; (3) enter into a control agreement or power of attorney with any
issuer or securities intermediary with respect to any Collateral consisting
of
investment property, on such terms as Lender may deem appropriate, in its sole
discretion, including without limitation, an agreement granting to Lender any
of
the rights provided hereunder without further notice to or consent by Grantor;
(4) execute any such control agreement on Grantor's behalf and in Grantor's
name, and hereby irrevocably appoints Xxxxxx as agent and attorney-in-fact,
coupled with an interest, for the purpose of executing such control agreement
on
Grantor's behalf; (5) exercise any and all rights of Lender under any such
control agreement or power of attorney; (6) exercise any voting,
conversion, registration, purchase, option, or other rights with respect to
any
Collateral; (7) collect, with or without legal action, and issue receipts
concerning any notes, checks, drafts, remittances or distributions that are
paid
or payable with respect to any Collateral consisting of investment property.
Any
control agreement entered with respect to any investment property shall contain
the following provisions, at Xxxxxx's discretion. Lender shall be authorized
to
instruct the issuer, broker or other securities intermediary to take or to
refrain from taking such actions with respect to the investment property as
Lender may instruct, without further notice to or consent by Grantor. Such
actions may include without limitation the issuance of entitlement orders,
account instructions, general trading or buy or sell orders, transfer and
redemption orders, and stop loss orders. Lender shall be further entitled to
instruct the issuer, broker or securities intermediary to sell or to liquidate
any investment property, or to pay the cash surrender or account termination
value with respect to any and all investment property, and to deliver all such
payments and liquidation proceeds to Lender. Any such control agreement shall
contain such authorizations as are necessary to place Lender in "control" of
such investment collateral, as contemplated under the provisions of the Uniform
Commercial Code, and shall fully authorize Lender to issue "entitlement orders"
concerning the transfer, redemption, liquidation or disposition of investment
collateral, in conformance with the provisions of the Uniform Commercial
Code.
Foreclosure.
Maintain
a judicial suit for foreclosure and sale of the Collateral.
Transfer
Title.
Effect
transfer of title upon sale of all or part of the Collateral. For this purpose,
Xxxxxxx irrevocably appoints Xxxxxx as Xxxxxxx's attorney-in-fact to execute
endorsements, assignments and instruments in the name of Grantor and each of
them (if more than one) as shall be necessary or reasonable.
Other
Rights and Remedies.
Have and
exercise any or all of the rights and remedies of a secured creditor under
the
provisions of the Uniform Commercial Code, at law, in equity, or
otherwise.
Application
of Proceeds.
Apply
any cash which is part of the Collateral, or which is received from the
collection or sale of the Collateral, to reimbursement of any expenses,
including any costs for registration of securities, commissions incurred in
connection with a sale, attorneys' fees and court costs, whether or not there
is
a lawsuit and including any fees on appeal, incurred by Lender in connection
with the collection and sale of such Collateral and to the payment of the
Indebtedness of Borrower to Lender, with any excess funds to be paid to Grantor
as the interests of Grantor may appear. Xxxxxxxx agrees, to the extent permitted
by law, to pay any deficiency after application of the proceeds of the
Collateral to the Indebtedness.
Election
of Remedies.
Except
as may be prohibited by applicable law, all of Lender's rights and remedies,
whether evidenced by this Agreement, the Related Documents, or by any other
writing, shall be cumulative and may be exercised singularly or concurrently.
Election by Xxxxxx to pursue any remedy shall not exclude pursuit of any other
remedy, and an election to make expenditures or to take action to perform an
obligation of Grantor under this Agreement, after Xxxxxxx's failure to perform,
shall not affect Xxxxxx's right to declare a default and exercise its
remedies.
5
MISCELLANEOUS
PROVISIONS.
The
following miscellaneous provisions are a part of this Agreement.
Amendments.
This
Agreement, together with any Related Documents, constitutes the entire
understanding and agreement of the parties as to the matters set forth in this
Agreement. All prior and contemporaneous representations and discussions
concerning such matters either are included in this document or do not
constitute an aspect of the agreement of the parties. Except as may be
specifically set forth in this Agreement, no conditions precedent or subsequent,
of any kind whatsoever, exist with respect to Grantor's obligations under this
Agreement. No alteration of or amendment to this Agreement shall be effective
unless given in writing and signed by the party or parties sought to be charged
or bound by the alteration or amendment.
Attorneys'
Fees; Expenses.
Xxxxxxx
agrees to pay upon demand all of Xxxxxx's cost and expenses, including Xxxxxx's
attorneys' fees and Xxxxxx's legal expenses, incurred in connection with the
enforcement of this Agreement. Lender may hire or pay someone else to help
enforce this Agreement, and Grantor shall pay the costs and expenses of such
enforcement. Costs and expenses include Xxxxxx's attorneys' fees and legal
expenses whether or not there is a lawsuit, including attorneys' fees and legal
expenses for bankruptcy proceedings (including efforts to modify or vacate
any
automatic stay or injunction), appeals, and any anticipated post-judgment
collection services. Grantor also shall pay all court costs and such additional
fees as may be directed by the court.
Caption
Headings.
Caption
headings in this Agreement are for convenience purposes only and are not to
be
used to interpret or define the provisions of this Agreement.
Governing
Law.
This
Agreement will be governed by federal law applicable to Lender and, to the
extent not preempted by federal law, the laws of the State of Oklahoma without
regard to its conflicts of law provisions. This Agreement has been accepted
by
Xxxxxx in the State of Oklahoma.
Joint
and Several Liability.
All
obligations of Borrower and Grantor under this Agreement shall be joint and
several, and all references to Grantor shall mean each and every Grantor, and
all references to Borrower shall mean each and every Borrower. This means that
each Borrower and Grantor signing below is responsible for all obligations
in
this Agreement. Where any one or more of the parties is a corporation,
partnership, limited liability company or similar entity, it is not necessary
for Lender to inquire into the powers of any of the officers, directors,
partners, members, or other agents acting or purporting to act on the entity's
behalf, and any obligations made or created in reliance upon the professed
exercise of such powers shall be guaranteed under this Agreement.
No
Waiver by Xxxxxx.
Lender
shall not be deemed to have waived any rights under this Agreement unless such
waiver is given in writing and signed by Xxxxxx. No delay or omission on the
part of Lender in exercising any right shall operate as a waiver of such right
or any other right. A waiver by Xxxxxx of a provision of this Agreement shall
not prejudice or constitute a waiver of Lender's right otherwise to demand
strict compliance with that provision or any other provision of this Agreement.
No prior waiver by Xxxxxx, nor any course of dealing between Xxxxxx and Grantor,
shall constitute a waiver of any of Lender's rights or of any of Grantor's
obligations as to any future transactions. Whenever the consent of Lender is
required under this Agreement, the granting of such consent by Lender in any
instance shall not constitute continuing consent to subsequent instances where
such consent is required and in all cases such consent may be granted or
withheld in the sole discretion of Lender.
Notices.
To the
extent permitted by applicable law, any notice required to be given under this
Agreement shall be given in writing, and shall be effective when actually
delivered, when actually received by telefacsimile (unless otherwise required
by
law), when deposited with a nationally recognized overnight courier, or, if
mailed, when deposited in the United States mail, as first class, certified
or
registered mail postage prepaid, directed to the addresses shown near the
beginning of this Agreement. Any party may change its address for notices under
this Agreement by giving formal written notice to the other parties, specifying
that the purpose of the notice is to change the party's address. For notice
purposes, Xxxxxxx agrees to keep Xxxxxx informed at all times of Xxxxxxx's
current address. To the extent permitted by applicable law, if there is more
than one Grantor, any notice given by Lender to any Grantor is deemed to be
notice given to all Grantors.
Severability.
If a
court of competent jurisdiction finds any provision of this Agreement to be
illegal, invalid, or unenforceable as to any circumstance, that finding shall
not make the offending provision illegal, invalid, or unenforceable as to any
other circumstances. If feasible, the offending provision shall be considered
modified so that it becomes legal, valid and enforceable. If the offending
provision cannot be so modified, it shall be considered deleted from this
Agreement. Unless otherwise required by law, the illegality, invalidity, or
unenforceability of any provision of this Agreement shall not affect the
legality, validity or enforceability of any other provision of this
Agreement.
Successors
and Assigns.
Subject
to any limitations stated in this Agreement on transfer of Grantor's interest,
this Agreement shall be binding upon and inure to the benefit of the parties,
their successors and assigns. If ownership of the Collateral becomes vested
in a
person other than Grantor, Lender, without notice to Grantor, may deal with
Grantor's successors with reference to this Agreement and the Indebtedness
by
way of forbearance or extension without releasing Grantor from the obligations
of this Agreement or liability under the Indebtedness.
Time
is of the Essence.
Time is
of the essence in the performance of this Agreement.
6
Waive
Jury.
All
parties to this Agreement hereby waive the right to any jury trial in any
action, proceeding, or counterclaim brought by any party against any other
party.
DEFINTIOINS.
The
following capitalized words and terms shall have the following meanings when
used in this Agreement. Unless specifically stated to the contrary, all
references to dollar amounts shall mean amounts in lawful money of the United
States of America. Words and terms used in the singular shall include the
plural, and the plural shall include the singular, as the context may require.
Words and terms not otherwise defined in this Agreement shall have the meanings
attributed to such terms in the Uniform Commercial Code:
Agreement.
The word
"Agreement" means this Commercial Pledge Agreement, as this Commercial Pledge
Agreement may be amended or modified from time to time, together with all
exhibits and schedules attached to this Commercial Pledge Agreement from time
to
time.
Borrower.
The word
"Borrower" means First Industries Capital Corporation and includes all
co-signers and co-makers signing the Note and all their successors and
assigns.
Collateral.
The word
"Collateral" means all of Grantor's right, title and interest in and to all
the
Collateral as described in the Collateral Description section of this
Agreement.
Default.
The word
"Default" means the Default set forth in this Agreement in the section titled
"Default".
Event
of Default.
The
words "Event of Default" mean any of the events of default set forth in this
Agreement in the default section of this Agreement.
Grantor.
The word
"Grantor" means SBL Corporation.
Guarantor.
The word
"Guarantor" means any guarantor, surety, or accommodation party of any or all
of
the Indebtedness.
Guaranty.
The word
"Guaranty" means the guaranty from Guarantor to Lender, including without
limitation a guaranty of all or part of the Note.
Income
and Proceeds.
The
words "Income and Proceeds" mean all present and future income, proceeds,
earnings, increases, and substitutions from or for the Collateral of every
kind
and nature, including without limitation all payments, interest, profits,
distributions, benefits, rights, options, warrants, dividends, stock dividends,
stock splits, stock rights, regulatory dividends, subscriptions, monies, claims
for money due and to become due, proceeds of any insurance on the Collateral,
shares of stock of different par value or no par value issued in substitution
or
exchange for shares included in the Collateral, and all other property Grantor
is entitled to receive on account of such Collateral, including accounts,
documents, instruments, chattel paper, and general intangibles.
Indebtedness.
The word
"Indebtedness" means the indebtedness evidenced by the Note or Related
Documents, including all principal and interest together with all other
indebtedness and costs and expenses for which Borrower is responsible under
this
Agreement or under any of the Related Documents. Specifically, without
limitation, Indebtedness includes all amounts that may be indirectly secured
by
the Cross-Collateralization provision of this Agreement.
Lender.
The word
"Lender" means THE BANK OF UNION, its successors and assigns.
Note.
The word
"Note" means the Note executed by First Industries Capital Corporation in the
principal amount of $2,800,327.00 dated April 12, 2006, together with all
renewals of, extensions of, modifications of, refinancings of, consolidations
of, and substitutions for the note or credit agreement.
Obligor.
The word
"Obligor" means without limitation any and all persons obligated to pay money
or
to perform some other act under the Collateral.
Property.
The word
"Property" means all of Grantor's right, title and interest in and to all the
Property as described in the "Collateral Description" section of this
Agreement.
Related
Documents.
The
words "Related Documents" mean all promissory notes, credit agreements, loan
agreements, environmental agreements, guaranties, security agreements,
mortgages, deeds of trust, security deeds, collateral mortgages, and all other
instruments, agreements and documents, whether now or hereafter existing,
executed in connection with the Indebtedness.
7
XXXXXXXX
AND GRANTOR HAVE READ AND UNDERSTOOD ALL THE PROVISIONS OF THIS COMMERCIAL
PLEDGE AGREMENT AND AGREE TO ITS TERMS. THIS AGREEMENT IS DATED APRIL12,
2006.
GRANTOR:
SBL
CORPORATION
By: /s/
Xxxx X.
Xxxxxx
XXXX
X.
XXXXXX, President of SBL Corporation
BORROWER:
FIRST
INDUSTRIES CAPITAL CORPORATION
By: /s/
Xxxx X. Xxxxxx
XXXX
X.
XXXXXX, President of First Industries
Capital
Corporation
LENDER:
THE
BANK
OF UNION
By: /s/
Xxxxxx Xxxxxx
XXXXXX
XXXXXX, Asst. Vice President
8
