Exhibit 10(i).3
COMMERCIAL PLEDGE AND SECURITY AGREEMENT
--------- ---------- ---------- ---------- --------- ------- ------- --------
Principal Loan Date Maturity Loan No Call/Coll Account Officer Initials
$6,250,000.00 08-30-2007 08-28-2009 1089921654 410 / 4 703
--------- ---------- ---------- ---------- --------- ------- ------- --------
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.
--------------------------------------------------------------------------------
Grantor: MorAmerica Capital Corporation
000 0xx Xxxxxx XX Xxx 000
Xxxxx Xxxxxx, XX 00000
Lender: Cedar Rapids Bank and Trust Company
000 0xx Xxxxxx XX Xxx 000, X.X. Xxx 000
Xxxxx Xxxxxx, XX 00000-0000
================================================================================
THIS COMMERCIAL PLEDGE AND SECURITY AGREEMENT dated August 30, 2007, is made and
executed between MorAmerica Capital Corporation ("Grantor") and Cedar Rapids
Bank and Trust Company ("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
Lender 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
all of Grantor's property (however owned if more than one), in the possession of
Lender (or in the possession of a third party subject to the control of Lender),
whether existing now or later and whether tangible or intangible in character,
including without limitation each and all of the following:
See Attached Exhibit "A"
In addition, the word "Collateral" includes all of Grantor's property (however
owned), in the possession of Lender (or in the possession of a third party
subject to the control of Lender), whether now or hereafter existing and whether
tangible or intangible in character, including without limitation each of the
following:
(A) All property to which Lender acquires title or documents of title.
(B) All property assigned to Lender.
(C) All promissory notes, bills of exchange, stock certificates, bonds,
savings passbooks, time certificates of deposit, insurance policies,
and all other instruments and evidences of an obligation.
(D) All records relating to any of the property described in this
Collateral section, whether in the form of a writing, microfilm,
microfiche, or electronic media.
(E) All Income and Proceeds from the Collateral as defined herein.
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 XXX or Xxxxx accounts, or any trust accounts
for which setoff would be prohibited by law. Grantor authorizes Lender, 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 Lender 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
COMMERCIAL PLEDGE AND SECURITY AGREEMENT
(Continued)
Loan No.: 1089921654 Page 2
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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
Lender's security interest. At Lender's request, Grantor additionally
agrees to sign all other documents that are necessary to perfect,
protect, and continue Lender'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 Lender to execute documents necessary to transfer title if
there is a default. Lender may file a copy of this Agreement as a
financing statement. If Grantor changes Grantor's name or address, or
the name or address of any person granting a security interest under
this Agreement changes, Grantor will promptly notify the Lender of such
change.
LENDER'S RIGHTS AND OBLIGATIONS WITH RESPECT 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:
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. Lender may charge Grantor for any cost incurred in so
doing. When applicable law provides more than one method of perfection
of Lender's security interest, Lender 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
Lender's request, either to request issuance of an appropriate
certificate or to give instructions on Lender's forms to the issuer,
transfer agent, mutual fund company, or broker, as the case may be, to
record on its books or records Lender's security interest in the
Collateral. Grantor also agrees to execute any additional documents,
including but not limited to, a control agreement, necessary to perfect
Lender's security interest as Lender may desire.
Income and Proceeds from the Collateral. Lender may receive all Income
and Proceeds and add it to the Collateral. Grantor agrees to deliver to
Lender 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.
COMMERCIAL PLEDGE AND SECURITY AGREEMENT
(Continued)
Loan No.: 1089921654 Page 3
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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 Lender decides to collect the
Income and Proceeds, to pay and deliver to Lender all Income and
Proceeds from the Collateral and to accept Lender'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, xxx 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 Lender'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.
Perfection of Security Interest. Upon Lender'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 Lender's security interest, Lender may choose
the method(s) to be used. Upon Lender's request, Grantor will sign and
deliver any writings necessary to perfect Lender's security interest.
Grantor hereby appoints Lender as Grantor's irrevocable
attorney-in-fact for the purpose of executing any documents necessary
to perfect, amend, or to continue the security interest granted in this
Agreement or to demand termination of filings of other secured parties.
LENDER'S EXPENDITURES. If any action or proceeding is commenced that would
materially affect Lender'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 from the date incurred or paid by
Lender to the date of repayment by Grantor. All such expenses will become a part
of the Indebtedness and, at Lender's option, will (A) be payable on demand; (B)
be added to the balance of the Note and be apportioned among and be payable with
any installment payments to become due during either (1) the term of any
applicable insurance policy; or (2) the remaining term of the Note; or (C) be
treated as a balloon payment which will be due and payable at the Note's
maturity. The Agreement also will secure payment of these amounts. Such right
shall be in addition to all other rights and remedies to which Lender may-be
entitled upon Default.
LIMITATIONS ON OBLIGATIONS OF LENDER. Lender shall use ordinary reasonable care
in the physical preservation and custody of the Collateral in Lender'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. Grantor fails to make any payment when due under the
Indebtedness.
Other Defaults. 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 Grantor.
Default in Favor of Third Parties. Should Grantor or any Grantor
default under any loan, extension of credit, security agreement,
purchase or sales agreement, or any other agreement, in favor of any
other creditor or person that may materially affect any of Grantor's
property or Grantor's or any Grantor's ability to repay the
Indebtedness or perform their respective obligations under this
Agreement or any of the Related Documents.
COMMERCIAL PLEDGE AND SECURITY AGREEMENT
(Continued)
Loan No.: 1089921654 Page 4
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False Statements. Any warranty, representation or statement made or
furnished to Lender by Grantor or on 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 Grantor's existence as a
going business, the insolvency of Grantor, the appointment of a
receiver for any part of 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
Grantor.
Creditor or Forfeiture Proceedings. Commencement of foreclosure or
forfeiture proceedings, whether by judicial proceeding, self-help,
repossession or any other method, by any creditor of Grantor or by any
governmental agency against any collateral securing the Indebtedness.
This includes a garnishment of any of Grantor's accounts, including
deposit accounts, with Lender. However, this Event of Default shall not
apply if there is a good faith dispute by Grantor as to the validity or
reasonableness of the claim which is the basis of the creditor or
forfeiture proceeding and if Grantor gives Lender written notice of the
creditor or forfeiture proceeding and deposits with Lender monies or a
surety bond for the creditor or forfeiture proceeding, in an amount
determined by Lender, in its sole discretion, as being an adequate
reserve or bond for the dispute.
Events Affecting Guarantor. Any of the preceding events occurs with
respect to any Guarantor 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 Grantor's
financial condition.
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
thirty (30) days; or (2) if the cure requires more than thirty (30)
days, immediately initiates steps which Lender deems in Lender's sole
discretion to be sufficient to cure the default and thereafter
continues and completes all reasonable and necessary steps sufficient
to produce compliance as soon as reasonably practical.
RIGHTS AND REMEDIES ON DEFAULT. If an Event of Default occurs under this
Agreement, at any time thereafter, Lender may exercise any one or more of the
following rights and remedies:
Accelerate Indebtedness. Declare all Indebtedness, including any
prepayment penalty which Grantor would be required to pay, immediately
due and payable, without notice of any kind to Grantor.
Collect the Collateral. Collect any of the Collateral and, at Lender'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 Lender'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) 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, Lender is unable, or
believes Lender is unable, to sell the
COMMERCIAL PLEDGE AND SECURITY AGREEMENT
(Continued)
Loan No.: 1089921654 Page 5
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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, Grantor agrees that neither Grantor, nor any member of
Grantor's family, nor any other person signing this Agreement will
sell or dispose of any securities of such issuer without obtaining
Lender'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 Lender'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 Lender 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 Lender'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 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, Grantor irrevocably appoints Lender
as Grantor'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 Grantor to Lender, with any excess funds
to be paid to Grantor as the interests of Grantor may appear. Grantor
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
Lender to pursue any remedy shall not exclude pursuit of any other
remedy, and an
COMMERCIAL PLEDGE AND SECURITY AGREEMENT
(Continued)
Loan No.: 1089921654 Page 6
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election to make expenditures or to take action to perform an
obligation of Grantor under this Agreement, after Grantor's failure to
perform, shall not affect Lender's right to declare a default and
exercise its remedies.
COMMERCIAL PLEDGE AND SECURITY AGREEMENT ADDENDUM. An exhibit, titled
"Commercial Pledge and Security Agreement Addendum," is attached to this
Agreement and by this reference is made a part of this Agreement just as if all
the provisions, terms and conditions of the Exhibit had been fully set forth in
this Agreement.
MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of
this Agreement:
Amendments. This Agreement, together with any Related Documents,
constitutes the entire understanding and agreement of the parties as to
the matters set forth in this Agreement. No alteration of or amendment
to this Agreement shall be effective unless given in writing and signed
by the party or parties sought to be charged or bound by the alteration
or amendment.
Attorneys' Reasonable Fees; Expenses. Grantor agrees to pay upon demand
all of Lender's costs and expenses, including Lender's attorneys' fees
and Lender'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 Lender'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 Iowa without regard to its conflicts of law
provisions. This Agreement has been accepted by Lender in the State of
Iowa.
Choice of Venue. If there is a lawsuit, Grantor agrees upon Lender's
request to submit to the jurisdiction of the courts of Linn County,
State of Iowa.
No Waiver by Lender. Lender shall not be deemed to have waived any
rights under this Agreement unless such waiver is given in writing and
signed by Lender. 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 Lender of a provision of this Agreement shall
not prejudice or constitute a waiver of Lender's right otherwise to
demand strict compliance with that provision or any other provision of
this Agreement. No prior waiver by Lender, nor any course of dealing
between Lender 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. 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, Grantor agrees
to keep Lender informed at all times of Grantor's current address.
Unless otherwise provided or required by law, if there is more than one
Grantor, any notice given by Lender to any Grantor is deemed to be
notice given to all Grantors.
Severability. If a court of competent jurisdiction finds any provision
of this Agreement to be illegal, invalid, or unenforceable as to any
circumstance, that finding shall not make the offending provision
illegal, invalid, or unenforceable as to any other circumstance. If
feasible, the offending provision shall be considered modified so that
it becomes legal, valid and enforceable. If the offending provision
cannot be so modified, it shall be considered deleted from this
Agreement. Unless otherwise required by law, the illegality,
invalidity, or unenforceability of any provision of this Agreement
shall not affect the legality, validity or enforceability of any other
provision of this Agreement.
COMMERCIAL PLEDGE AND SECURITY AGREEMENT
(Continued)
Loan No.: 1089921654 Page 7
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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.
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.
DEFINITIONS. The following capitalized words and terms shall have the following
meanings when used in this Agreement. Unless specifically stated to the
contrary, all references to dollar amounts shall mean amounts in lawful money of
the United States of America. Words and terms used in the singular shall include
the plural, and the plural shall include the singular, as the context may
require. Words and terms not otherwise defined in this Agreement shall have the
meanings attributed to such terms in the Uniform Commercial Code:
Agreement. The word "Agreement" means this Commercial Pledge and
Security Agreement, as this Commercial Pledge and Security Agreement
may be amended or modified from time to time, together with all
exhibits and schedules attached to this Commercial Pledge and Security
Agreement from time to time.
Borrower. The word "Borrower" means MorAmerica 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 MorAmerica Capital 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
Grantor is responsible under this Agreement or under any of the Related
Documents.
Lender. The word "Lender" means Cedar Rapids Bank and Trust Company,
its successors and assigns.
Note. The word "Note" means the Notes executed by MorAmerica Capital
Corporation dated August 30, 2007, together with all renewals of,
extensions of, modifications of, refinancings of, consolidations of,
and substitution.
COMMERCIAL PLEDGE AND SECURITY AGREEMENT
(Continued)
Loan No.: 1089921654 Page 8
================================================================================
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.
GRANTOR HAS READ AND UNDERSTOOD ALL THE PROVISIONS OF THIS COMMERCIAL PLEDGE AND
SECURITY AGREEMENT AND AGREES TO ITS TERMS. THIS AGREEMENT IS DATED AUGUST 30,
2007.
GRANTOR ACKNOWLEDGES RECEIPT OF A COMPLETED COPY OF THIS COMMERCIAL PLEDGE AND
SECURITY AGREEMENT AND ALL OTHER DOCUMENTS RELATING TO THIS DEBT.
GRANTOR:
MORAMERICA CAPITAL CORPORATION
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------------------------------------------
Xxxxx X. Xxxxxxxx, President of MorAmerica Capital Corporation
LENDER:
CEDAR RAPIDS BANK AND TRUST COMPANY
By: /s/ Xxxx X. Xxxxxxx
--------------------------------------------------------------
Xxxx X. Xxxxxxx, Senior Vice President
COMMERCIAL PLEDGE AND SECURITY AGREEMENT ADDENDUM
--------- ---------- ---------- ---------- --------- ------- ------- --------
Principal Loan Date Maturity Loan No Call/Coll Account Officer Initials
$6,250,000.00 08-30-2007 08-28-2009 1089921654 410 / 4 703
--------- ---------- ---------- ---------- --------- ------- ------- --------
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.
--------------------------------------------------------------------------------
Grantor: MorAmerica Capital Corporation
000 0xx Xxxxxx XX Xxx 000
Xxxxx Xxxxxx, XX 00000
Lender: Cedar Rapids Bank and Trust Company
000 0xx Xxxxxx XX Xxx 000, X.X. Xxx 000
Xxxxx Xxxxxx, XX 00000-0000
================================================================================
This COMMERCIAL PLEDGE AND SECURITY AGREEMENT ADDENDUM is attached to and by
this reference is made a part of the Commercial Pledge and Security Agreement,
dated August 30, 2007, and executed in connection with a loan or other financial
accommodations between CEDAR RAPIDS BANK AND TRUST COMPANY and MorAmerica
Capital Corporation.
The following subsection is added to the Representations and Warranties with
Respect to the Collateral:
Right to Pledge. Grantor does have the full right, power and authority to enter
into this Agreement and pledge the Collateral, except that Grantor's right to
pledge the instruments and securities listed on Schedule 2 attached are subject
to certain contractual restrictions which prohibit or limit Grantor's ability to
pledge those instruments or securities.
Transactions Involving Collateral. Grantor may liquidate portions of the
Collateral with the terms of respective securities or instruments in the
ordinary course of business.
Lender acknowledges that Lender has been granted all rights of Borrower in the
collateral and that Lender will be subject to any and all restrictions and
conditions contained in the underlying instruments and securities.
Notwithstanding any other provisions, the net cash proceeds from the sale of
collateral will be applied as provided in the Promissory Notes.
THIS COMMERCIAL PLEDGE AND SECURITY AGREEMENT ADDENDUM IS EXECUTED ON AUGUST 30,
2007.
GRANTOR:
MORAMERICA CAPITAL CORPORATION
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------------------------------------------
Xxxxx X. Xxxxxxxx, President of MorAmerica Capital Corporation
LENDER:
CEDAR RAPIDS BANK AND TRUST COMPANY
By: /s/ Xxxx X. Xxxxxxx
--------------------------------------------------------------
Xxxx X. Xxxxxxx, Senior Vice President
