RIDER TO SECURITY AGREEMENT EXECUTED BY NONBORROWER GRANTOR (Premier Power California)
Exhibit
10.6
RIDER
TO SECURITY AGREEMENT
EXECUTED
BY NONBORROWER GRANTOR
(Premier
Power California)
That certain Commercial Security
Agreement dated July 13, 2009 (“Security Agreement”) is given
as security to UMPQUA BANK, an Oregon corporation (“Lender”) by PREMIER POWER
RENEWABLE ENERGY, INC., a California corporation("Grantor" and “Nonborrower Grantor”) to
secure Indebtedness of PREMIER POWER RENEWABLE ENERGY, INC.,a Delaware
corporation (“Borrower”)
to Lender. Capitalized terms used but not defined in this Rider shall
have the meanings ascribed in the Security Agreement. In
consideration of the Loan extended by the Lender to Borrower, Grantor, as
Nonborrower Grantor, agrees as follows:
1. The
obligations under the Security Agreement are joint and several and are
independent of and in addition to the undertakings of Borrower pursuant to the
Notes and the other documents evidencing and securing the Loans (the “Loan Documents”), any evidence
of indebtedness issued in connection with the Loan to Borrower, or any deed of
trust or security agreement given to secure the Loan to Borrower, any guaranties
given in connection with the Loan to Borrower, and any other obligations of
Borrower or any guarantor to Lender;
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2.
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Lender
may at any time, or from time to time, in its sole
discretion:
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(A) extend
or change the time of payment or performance or the manner, place, or terms of
payment or performance of any of the Indebtedness;
(B) exchange,
release, or surrender any of the collateral security, or any part of it, by
whomever deposited, which is now or may later be held by Lender in connection
with any of the Indebtedness;
(C) sell
or purchase any of the collateral at public or private sale, or at any broker's
board, in the manner permitted by law, and after all costs and expenses of every
kind for collection, sale, or delivery, the net proceeds of any sale may be
applied by Lender on any of the Indebtedness; and
(D) settle
or compromise with Borrower, or any other person liable, any of the
Indebtedness, or subordinate the payment of it, or any part of it, to the
payment of any other debts or claims, that may at any time be due or owing to
Lender or any other person or entity;
3. Lender
will be under no obligation to marshal any assets in favor of Borrower or
Nonborrower Grantor or in payment of any of the Indebtedness; and
4.
The Nonborrower Grantor’s liability hereunder shall be the immediate, direct,
and primary obligation of the Nonborrower Grantor and shall not be contingent
upon the Lender’s exercise or enforcement of any remedy it may have against the
Borrower or any other person, or against any collateral for the Loan to Borrower
or other security for any of the Indebtedness.
5. Nonborrower
Grantor waives:
(A) presentment,
demand, protest, notice of acceptance, notice of dishonor, notice of
nonperformance, and any other notice with respect to any of the Indebtedness and
this Security Agreement, and promptness in commencing suit against any party, or
in giving any notice to or making any claim or demand on Nonborrower
Grantor;
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(B) any
right to require Lender to proceed against Borrower or any other guarantor,
proceed against or exhaust any security held from Borrower or any other
guarantor, or pursue any remedy in Lender's power;
(C) any
defense based on any legal disability or other defense of Borrower, any other
guarantor, or other person or by reason of the cessation or limitation of the
liability of Borrower from any cause other than full payment of all sums payable
under the Note and the performance of the Indebtedness;
(D) any
defense based on any lack of authority of the officers, directors, partners, or
agents purporting to act on behalf of Borrower or any principal of Borrower or
any defect in the formation of Borrower or any principal of any
Borrower;
(E) to
the fullest extent permitted by law, all rights and benefits under Civil Code §
2809 purporting to reduce a guarantor's obligations in proportion to the
principal obligation, including without limitation, any defense based on any
statute or rule of law that provides that the obligation of a surety must be
neither larger in amount nor in any other respects more burdensome than that of
a principal;
(F) any
defense based on the application by Borrower of the proceeds of the Loan to
Borrower for purposes other than the purposes represented by Borrower to Lender
or intended or understood by Lender or Nonborrower Grantor, or based on Lender’s
acts or omissions in administration of the Loan to Borrower;
(G) any
defense it may acquire by reason of Lender's election of any remedy against
Nonborrower Grantor or Borrower or both, including, without limitation, election
by Lender to exercise its rights under the power of sale in the Security
Agreement and the consequent loss by Nonborrower Grantor of the right to recover
any deficiency from Borrower;
(H) any
defense based on Lender's failure to disclose to Nonborrower Grantor any
information concerning Borrower’s financial condition or any other circumstances
bearing on Borrower’s ability to pay all sums payable under the Note or any of
the Indebtedness or on Lender’s failure to disclose any information with respect
to the Indebtedness, the collateral for the Loan to Borrower or other security
for any or all Indebtedness, the existence or nonexistence of any other
guarantees of all or any part of the Indebtedness, any action or inaction on the
part of the Lender or any other party, or any other matter, fact, or occurrence
whatsoever;
(I)
any defense based on Lender's election, in any proceeding
instituted under the Federal Bankruptcy Code, of the application of Section
1111(b)(2) of the Federal Bankruptcy Code or any successor statute;
(J)
any defense based on any borrowing or any grant of
a security interest under § 364 of the Federal Bankruptcy Code;
(K) any
right of subrogation, contribution, or reimbursement against Borrower, any right
to enforce any remedy that Lender has or may in the future have against
Borrower, any other right that Lender may now or later acquire against Borrower
that arises from the existence or performance of Nonborrower Grantor's
obligations under this Security Agreement or would arise with respect to the
Indebtedness, and any benefit of, and any right to participate in, any security
for the Indebtedness now or in the future held by Lender;
(L) the
benefit of any statute of limitations affecting the liability of Nonborrower
Grantor or the enforcement of the Security Agreement, including, without
limitation, any rights arising under Code of Civil Procedure §
359.5;
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(M) any
rights to setoffs or counterclaims on Borrower’s or Nonborrower Grantor’s
part;
(N) to
the fullest extent permitted by law, all rights and benefits under Code of Civil
Procedure § 580a, purporting to limit the amount of any deficiency judgment that
might be recoverable following the occurrence of a trustee's sale under a deed
of trust; Code of Civil Procedure § 580b, stating that no deficiency may be
recovered on a real property purchase money obligation; and Code of Civil
Procedure § 580d, stating that no deficiency may be recovered on a note secured
by a deed of trust on real property in case the real property is sold under the
power of sale contained in the deed of trust, if those statutory sections have
any application;
(O) all
rights and defenses that Nonborrower Grantor may have because the Borrower’s
debt is secured by real property. This means, among other
things:
(1) Lender
may foreclose on the real property without first foreclosing on any other real
or personal property collateral pledged by Nonborrower Grantor or the
Borrower.
(2) If
Lender forecloses on any real property collateral:
(a) The
amount of the debt may be reduced only by the price for which that collateral is
sold at the foreclosure sale, even if the collateral is worth more than the sale
price.
(b) Lender
may foreclose on the real property even if Lender, by foreclosing on the real
property collateral, has destroyed any right the Nonborrower Grantor may have to
collect from Borrower.
This is
an unconditional and irrevocable waiver of any rights and defenses Nonborrower
Grantor may have because Borrower’s debt is secured by real
property. These rights and defenses include, but are not limited to,
any rights or defenses based upon Section 580a, 580b, 580d, or 726 of the
California Code of Civil Procedure; and
(P) all
rights and defenses arising out of an election of remedies by the Lender, even
though that election of remedies, such as a nonjudicial foreclosure with respect
to security for the Indebtedness, has destroyed Nonborrower Grantor's rights of
subrogation and reimbursement against Borrower by the operation of Section 580d
of the California Code of Civil Procedure or otherwise.
6. Nonborrower
Grantor agrees that the payment of all sums payable under the Note or any of the
Indebtedness or Obligations or any other act that tolls any statute of
limitations applicable to the Note or any of the Indebtedness will similarly
operate to toll the statute of limitations applicable to Nonborrower Grantor’s
liability. Without limiting the generality of the foregoing or any other
provision of this Rider, Nonborrower Grantor expressly waives all benefits that
might otherwise be available to Nonborrower Grantor under Civil Code §§ 2809,
2810, 2819, 2839, 2845, 2849, 2850, 2899, and 3433 and Code of Civil Procedure
§§ 580a, 580b, 580d, and 726, or similar sections.
7. Nonborrower
Grantor, by execution hereof, represents to Lender that the relationship between
Nonborrower Grantor and Borrower is such that Nonborrower Grantor has access to
all relevant facts and information concerning the Indebtedness and Borrower and
that Lender can rely upon Nonborrower Grantor having such
access. Nonborrower Grantor waives and agrees not to assert any duty
on the part of Lender to disclose to Nonborrower Grantor any facts that it may
now or hereafter know about Borrower, regardless of whether Lender has reason to
believe that any such facts materially increase the risk beyond that which
Nonborrower Grantor intends to assume or has reason to believe that such facts
are unknown to Nonborrower Grantor or has a reasonable opportunity to
communicate such facts to Nonborrower Grantor. Nonborrower Grantor is
fully responsible for being and keeping informed of the financial condition of
Borrower and all circumstances bearing on the risk of nonpayment of any
Indebtedness hereby secured.
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8. With
or without notice to Nonborrower Grantor, Lender, in its sole discretion, at any
time and from time to time, in such manner and upon such terms as it considers
best, may (a) apply any and all payments or recoveries from Borrower, from
Nonborrower Grantor, from any guarantor or endorser, or realized from any
security, in such manner, order and priority as Lender elects, to any
Indebtedness of Borrower to Lender, whether or not such Indebtedness is secured
hereby or is otherwise secured or is due at the time of such application; and
(b) refund to Borrower any payment received by Lender upon any Indebtedness
hereby secured and payment of the amount refunded shall be fully secured
hereby.
9. No
exercise or nonexercise by Lender of any right hereby given it, no dealing
by Lender with Borrower or any other person, and no change,
impairment or suspension of any right or remedy of Lender shall in any way
affect any of the obligations of Nonborrower Grantor hereunder or give
Nonborrower Grantor any recourse against Lender.
10. Capitalized
terms not defined herein shall have the definitions set forth in the Security
Agreement.
This Rider to Security Agreement
Executed by Nonborrower Grantor in made effective this 13th day of July, 2009
and is made a part of and is incorporated into the Security Agreement dated July
13, 2009.
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NONBORROWER
GRANTOR:
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PREMIER
POWER RENEWABLE ENERGY, INC., a California corporation
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By:
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Its:
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