EXHIBIT 10.18
SECURITY AGREEMENT
THIS SECURITY AGREEMENT, dated as of November 23, 2004, between EAST
KANSAS AGRI-ENERGY, L.L.C., a Kansas limited liability company ("BORROWER"), and
HOME FEDERAL SAVINGS BANK ("LENDER").
WHEREAS, Borrower has entered into a Credit Agreement dated as of the
date hereof (as amended and in effect from time to time, the "Credit Agreement")
with Lender, pursuant to which Lender, subject to the terms and conditions
contained therein, is to make loans to Borrower; and
WHEREAS, it is a condition precedent to Lender's making any loans to
Borrower under the Credit Agreement that Borrower execute and deliver to Lender
a security agreement in substantially the form hereof; and
WHEREAS, Borrower wishes to grant security interests in favor of Lender
as herein provided;
NOW, THEREFORE, in consideration of the promises contained herein and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, Borrower and Lender agree as follows:
1. DEFINITIONS. All capitalized terms which are not defined herein
shall have the respective meanings provided for in the Credit Agreement. The
term "State" as used herein means the State of Minnesota. All terms defined in
Article 9 of the Uniform Commercial Code of the State and used herein shall have
the same meanings as specified therein. The term "Event of Default" as used
herein means any Event of Default described or listed in the Credit Agreement,
including the failure of Borrower to pay or perform any of the Obligations as
and when due to be paid or performed under the terms of the Credit Agreement.
2. GRANT OF SECURITY INTEREST. Borrower hereby grants to Lender,
to secure the payment and performance in full of all of the Obligations, a
security interest in, and pledges and assigns to Lender, the following
properties, assets and rights of Borrower, wherever located, whether now owned
or hereafter acquired or arising, and all proceeds (including casualty insurance
proceeds) and products thereof (all of the same being hereinafter called the
"Collateral"): all personal and fixture property of every kind and nature
including without limitation all goods (including inventory, equipment and any
accessions thereto), instruments (including notes), documents, accounts
(including health-care-insurance receivables), chattel paper (whether tangible
or electronic), deposit accounts, letter-of-credit rights (whether or not the
letter of credit is evidenced by a writing), commercial tort claims, securities
and all other investment property, supporting obligations, any other contract
rights or rights to the payment of money (including without limitation all
United States Department of Agriculture payments and Commodity Credit
Corporation payments such as payments related to the bioenergy program described
at 7 C.F.R. Part 1424),
including without limitation all management contracts, supply contracts, off
take contracts, all railroad, trucking and other transportation contracts, and
all power contracts, insurance claims and proceeds, tort claims, and all general
intangibles including, without limitation, all payment intangibles, patents,
patent applications, trademarks, trademark applications, trade names,
copyrights, copyright applications, software, engineering drawings, service
marks, customer lists, goodwill, and all licenses, permits, agreements of any
kind or nature pursuant to which Borrower possesses, uses or has authority to
possess or use property (whether tangible or intangible) of others or others
possess, use or have authority to possess or use property (whether tangible or
intangible) of Borrower, and all recorded data of any kind or nature, regardless
of the medium of recording including, without limitation, all software,
writings, plans, specifications and schematics. Lender acknowledges that the
attachment of its security interest in any commercial tort claim as original
collateral is subject to Borrower's compliance with SECTION 4.07.
3. AUTHORIZATION TO FILE FINANCING STATEMENTS. Borrower hereby
irrevocably authorizes Lender at any time and from time to time to file in any
Uniform Commercial Code jurisdiction any initial financing statements and
amendments thereto that (a) indicate the Collateral (i) as all assets of
Borrower or words of similar effect, regardless of whether any particular asset
comprised in the Collateral falls within the scope of Article 9 of the Uniform
Commercial Code of the State or such jurisdiction, or (ii) as being of an equal
or lesser scope or with greater detail, and (b) contain any other information
required by Article 9 of the Uniform Commercial Code of the State or any other
state for the sufficiency or filing office acceptance of any financing statement
or amendment, including (i) whether Borrower is an organization, the type of
organization and any organization identification number issued to Borrower and,
(ii) in the case of a financing statement filed as a fixture filing or
indicating Collateral as as-extracted collateral or timber to be cut, a
sufficient description of real property to which the Collateral relates.
Borrower agrees to furnish any such information to Lender promptly upon request.
Borrower also ratifies its authorization for Lender to have filed in any Uniform
Commercial Code jurisdiction any like initial financing statements or amendments
thereto if filed prior to the date hereof.
4. OTHER ACTIONS. Further to insure the attachment, perfection and
first priority of, and the ability of Lender to enforce, Lender's security
interest in the Collateral, Borrower agrees, in each case at Borrower's own
expense, to take the following actions with respect to the following Collateral:
4.01. NOTES AND TANGIBLE CHATTEL PAPER. If Borrower shall at
any time hold or acquire any notes or tangible chattel paper, Borrower
shall, at Lender's request, forthwith endorse, assign and deliver the
same to Lender, accompanied by such instruments of transfer or
assignment duly executed in blank as Lender may from time to time
specify.
4.02. DEPOSIT ACCOUNTS. For each deposit account that
Borrower at any time opens or maintains, Borrower shall, at Lender's
request and option, pursuant
to an agreement in form and substance satisfactory to Lender, either
(a) cause the depositary bank to agree to comply at any time with
instructions from Lender to such depositary bank directing the
disposition of funds from time to time credited to such deposit account,
without further consent of Borrower, or (b) arrange for Lender to become
the customer of the depositary bank with respect to the deposit account,
with Borrower being permitted, only with the consent of Lender, to
exercise rights to withdraw funds from such deposit account. The
provisions of this paragraph shall not apply to (i) any deposit account
for which Borrower, the depositary bank and Lender have entered into a
cash collateral agreement specially negotiated among Borrower, the
depositary bank and Lender for the specific purpose set forth therein,
(ii) deposit accounts for which Lender is the depositary and
(iii) deposit accounts specially and exclusively used for payroll,
payroll taxes and other employee wage and benefit payments to or for the
benefit of Borrower's salaried employees.
4.03. INVESTMENT PROPERTY. If Borrower shall at any time hold
or acquire any certificated securities, Borrower shall forthwith
endorse, assign and deliver the same to Lender, accompanied by such
instruments of transfer or assignment duly executed in blank as Lender
may from time to time specify. If any securities now or hereafter
acquired by Borrower are uncertificated and are issued to Borrower or
its nominee directly by the issuer thereof, Borrower shall immediately
notify Lender thereof and, at Lender's request and option, pursuant to
an agreement in form and substance satisfactory to Lender, either
(a) cause the issuer to agree to comply with instructions from Lender as
to such securities, without further consent of Borrower or such nominee,
or (b) arrange for Lender to become the registered owner of the
securities. If any securities, whether certificated or uncertificated,
or other investment property now or hereafter acquired by Borrower are
held by Borrower or its nominee through a securities intermediary or
commodity intermediary, Borrower shall immediately notify Lender thereof
and, at Lender's request and option, pursuant to an agreement in form
and substance satisfactory to Lender, either (i) cause such securities
intermediary or (as the case may be) commodity intermediary to agree to
comply with entitlement orders or other instructions from Lender to such
securities intermediary as to such securities or other investment
property, or (as the case may be) to apply any value distributed on
account of any commodity contract as directed by Lender to such
commodity intermediary, in each case without further consent of Borrower
or such nominee, or (ii) in the case of financial assets or other
investment property held through a securities intermediary, arrange for
Lender to become the entitlement holder with respect to such investment
property, with Borrower being permitted, only with the consent of
Lender, to exercise rights to withdraw or otherwise deal with such
investment property. The provisions of this paragraph shall not apply to
any financial assets credited to a securities account for which Lender
is the securities intermediary.
4.04. COLLATERAL IN THE POSSESSION OF A BAILEE. If any goods
are at any time in the possession of a bailee, Borrower shall promptly
notify Lender thereof and, if requested by Lender, shall promptly obtain
an acknowledgment from the bailee, in form and substance satisfactory to
Lender, that the bailee holds such
Collateral for the benefit of Lender and shall act upon the instructions
of Lender, without the further consent of Borrower.
4.05. ELECTRONIC CHATTEL PAPER AND TRANSFERABLE RECORDS. If
Borrower at any time holds or acquires an interest in any electronic
chattel paper or any "transferable record," as that teats is defined in
Section 201 of the Federal Electronic Signatures in Global and National
Commerce Act, or in Section 16 of the Uniform Electronic Transactions
Act as in effect in any relevant jurisdiction, Borrower shall promptly
notify Lender thereof and, at the request of Lender, shall take such
action as Lender may reasonably request to vest in Lender control, under
Section 9-105 of the Uniform Commercial Code, of such electronic chattel
paper or control under Section 201 of the Federal Electronic Signatures
in Global and National Commerce Act or, as the case may be, Section 16
of the Uniform Electronic Transactions Act, as so in effect in such
jurisdiction, of such transferable record. Lender agrees with Borrower
that Lender will arrange, pursuant to procedures satisfactory to Lender
and so long as such procedures will not result in Lender's loss of
control, for Borrower to make alterations to the electronic chattel
paper or transferable record permitted under UCC Section 9-105 or, as
the case may be, Section 201 of the Federal Electronic Signatures in
Global and National Commerce Act or Section 16 of the Uniform Electronic
Transactions Act for a party in control to make without loss of control,
unless an Event of Default has occurred and is continuing or would occur
after taking into account any action by Borrower with respect to such
electronic chattel paper or transferable record.
4.06. LETTER-OF-CREDIT RIGHTS. If Borrower is at any time a
beneficiary under a letter of credit now or hereafter issued in favor of
Borrower, Borrower shall promptly notify Lender thereof and, at the
request and option of Lender, Borrower shall, pursuant to an agreement
in form and substance satisfactory to Lender, either (i) arrange for the
issuer and any confirmer of such letter of credit to consent to an
assignment to Lender of the proceeds of any drawing under the letter of
credit or (ii) arrange for Lender to become the transferee beneficiary
of the letter of credit.
4.07 COMMERCIAL TORT CLAIMS. If Borrower shall at any time
hold or acquire a commercial tort claim, Borrower shall immediately
notify Lender in a writing signed by Borrower of the brief details
thereof and grant to Lender in such writing a security interest therein
and in the proceeds thereof, all upon the terms of this Agreement, with
such writing to be in form and substance satisfactory to Lender.
4.08 OTHER ACTIONS AS TO ANY AND ALL COLLATERAL. Borrower
further agrees to take any other action reasonably requested by Lender
to insure the attachment, perfection and first priority of, and the
ability of Lender to enforce, Lender's security interest in any and all
of the Collateral including, without limitation, (a) executing,
delivering and, where appropriate, filing financing statements and
amendments relating thereto under the Uniform Commercial Code,
(b) causing Lender's name to be noted as secured party on any
certificate of title for a titled good if such notation is a condition
to attachment, perfection or priority of, or ability of Lender to
enforce, Lender's security interest in such Collateral, (c) complying
with any provision of any statute, regulation or treaty of the United
States as to any Collateral if compliance with such provision is a
condition to attachment, perfection or priority of, or ability of Lender
to enforce, Lender's security interest in such Collateral, (d) obtaining
governmental and other third party consents and approvals, including
without limitation any consent of any licensor, lessor or other person
obligated on Collateral, (e) obtaining waivers from mortgagees and
landlords in form and substance satisfactory to Lender and (f) taking
all actions required by any earlier versions of the Uniform Commercial
Code or by other law, as applicable in any relevant Uniform Commercial
Code jurisdiction, or by other law as applicable in any foreign
jurisdiction.
5. RELATION TO OTHER SECURITY DOCUMENTS. The provisions of this
Agreement supplement the provisions of any real estate mortgage or deed of trust
granted by Borrower to Lender and securing the payment or performance of any of
the Obligations. Nothing contained in any such real estate mortgage or deed of
trust shall derogate from any of the rights or remedies of Lender hereunder.
6. REPRESENTATIONS AND WARRANTIES CONCERNING BORROWER'S LEGAL
STATUS. Borrower represents and warrants to Lender as follows: (a) Borrower's
exact legal name is that indicated on the signature page hereof, (b) Borrower is
a limited liability company organized under the laws of the State of Kansas, (c)
Borrower's organizational identification number is 3236049, (d) Borrower's tax
payer identification number is 484251578 and (e) Borrower's place of business,
chief executive office, as well as mailing address is 210 112 East 4th Avenue,
X.X. Xxx 000, Xxxxxxx, Xxxxxx 00000.
7. COVENANTS CONCERNING BORROWER'S LEGAL STATUS. Borrower
covenants with Lender as follows: (a) without providing at least 30 days prior
written notice to Lender, Borrower will not change its name, its place of
business or, if more than one, chief executive office, or its mailing address or
organizational identification number if it has one, (b) if Borrower does not
have an organizational identification number and later obtains one, Borrower
shall forthwith notify Lender of such organizational identification number, and
(c) Borrower will not change its type of organization, jurisdiction of
organization or other legal structure.
8. REPRESENTATIONS AND WARRANTIES CONCERNING COLLATERAL, ETC.
Borrower further represents and warrants to Lender as follows: (a) Borrower is
the owner of the Collateral, free from any adverse lien, security interest or
other encumbrance, except for the security interest created by this Agreement
and other liens permitted by the Credit Agreement, (b) to the extent that any of
the Collateral constitutes, or is the proceeds of, "farm products" as defined in
Section 9-102(a)(34) of the Uniform Commercial Code of the State or any other
relevant state, Borrower has taken all required acts to ensure that Lender's
security interest in such Collateral is first and prior, (c) none of the account
debtors or other persons obligated on any of the Collateral is a governmental
authority
subject to the Federal Assignment of Claims Act or like federal, state or local
statute or rule in respect of such Collateral, (d) Borrower holds no commercial
tort claim except as set forth on SCHEDULE 8(d) and (e) Borrower has at all
times operated its business in compliance with all applicable provisions of the
federal Fair Labor Standards Act, as amended, and with all applicable provisions
of federal, state and local statutes and ordinances dealing with the control,
shipment, storage or disposal of hazardous materials or substances.
9. COVENANTS CONCERNING COLLATERAL, ETC. Borrower further
covenants with Lender as follows: (a) the Collateral, to the extent not
delivered to Lender pursuant to SECTION 4, will be kept at those locations
listed on SCHEDULE 9(a) and Borrower will not remove the Collateral from such
locations, without providing at least 30 days prior written notice to Lender,
except for Collateral sold or used in the ordinary course of business, (b)
except for the security interest herein granted and liens permitted by the
Credit Agreement, Borrower shall be the owner of the Collateral free from any
lien, security interest or other encumbrance, and Borrower shall defend the same
against all claims and demands of all persons at any time claiming the same or
any interests therein adverse to Lender, (c) Borrower shall not pledge, mortgage
or create, or suffer to exist a security interest in the Collateral in favor of
any person other than Lender except for liens permitted by the Credit Agreement,
(d) Borrower will keep the Collateral in good order and repair and will not use
the same in violation of law or any policy of insurance thereon, (e) Borrower
will permit Lender, or its designee, to inspect the Collateral at any reasonable
time, upon prior written notice, wherever located, (f) Borrower will pay
promptly when due all taxes, assessments, governmental charges and levies upon
the Collateral or incurred in connection with the use or operation of such
Collateral or incurred in connection with this Agreement unless contested in
good faith and Borrower has adequately reserved for the contested taxes,
assessments, penalties or other charges, (g) Borrower will continue to operate,
its business in compliance with all applicable provisions of the federal Fair
Labor Standards Act, as amended, and with all applicable provisions of federal,
state and local statutes and ordinances dealing with the control, shipment,
storage or disposal of hazardous materials or substances, and (h) Borrower will
not sell or otherwise dispose, or offer to sell or otherwise dispose, of the
Collateral or any interest therein except for (i) sales of inventory and
licenses of general intangibles in the ordinary course of business and (ii)
sales or other dispositions of obsolescent items of equipment in the ordinary
course of business consistent with past practices and permitted by the Credit
Agreement.
10. INSURANCE.
10.01. MAINTENANCE OF INSURANCE. Borrower will maintain with
financially sound and reputable insurers insurance with respect to its
properties and business against such casualties and contingencies as
shall be in accordance with general practices of businesses engaged in
similar activities in similar geographic areas. Such insurance shall be
in such minimum amounts that Borrower will not be deemed a co-insurer
under applicable insurance laws, regulations and policies and otherwise
shall be in such amounts, contain such terms, be in such forms and be
for such periods as may he
reasonably satisfactory to Lender. In addition, all such insurance shall
be payable to Lender as loss payee under a standard loss payee clause.
Without limiting the foregoing, Borrower will (i) keep all of its
physical property insured with casualty or physical hazard insurance on
an "all risks" basis, with electronic data processing coverage, with a
full replacement cost endorsement and in an amount equal to 100% of the
full replacement cost of such property, (ii) maintain all such workers'
compensation or similar insurance as may be required by law and
(iii) maintain, in amounts and with deductibles equal to those generally
maintained by businesses engaged in similar activities in similar
geographic areas, general public liability insurance against claims of
bodily injury, death or property damage occurring, on, in or about the
properties of Borrower; business interruption insurance; and product
liability insurance.
10.02. INSURANCE PROCEEDS. The proceeds of any casualty
insurance in respect of any casualty loss of any of the Collateral
shall, subject to the rights, if any, of other parties with a prior
interest in the property covered thereby, (i) so long as no Default or
Event of Default has occurred and is continuing and to the extent that
the amount of such proceeds is less than $200,000, be disbursed to
Borrower for direct application by Borrower solely to the repair or
replacement of Borrower's property so damaged or destroyed and (ii) in
all other circumstances, be held by Lender as cash collateral for the
Obligations. Lender may, at its sole option, disburse from time to time
all or any part of such proceeds so held as cash collateral, upon such
terms and conditions as Lender may reasonably prescribe, for direct
application by Borrower solely to the repair or replacement of
Borrower's property so damaged or destroyed, or Lender may apply all or
any part of such proceeds to the Obligations with the Commitments (if
not then terminated) being reduced by the amount so applied to the
Obligations.
10.03. NOTICE OF CANCELLATION, ETC. All policies of insurance
shall provide for at least 30 days prior written cancellation notice to
Lender. In the event of failure by Borrower to provide and maintain
insurance as herein provided, Lender may, at its option, provide such
insurance and charge the amount thereof to Borrower. Borrower shall
furnish Lender with certificates of insurance and policies evidencing
compliance with the foregoing insurance provision.
11. COLLATERAL PROTECTION EXPENSES: PRESERVATION OF COLLATERAL.
11.01. EXPENSES INCURRED BY LENDER. In its discretion, Lender
may discharge taxes and other encumbrances at any time levied or placed
on any of the Collateral, make repairs thereto and pay any necessary
filing fees or, if the debtor fails to do so, insurance premiums.
Borrower agrees to reimburse Lender on demand for any and all
expenditures so made. Lender shall have no obligation to Borrower to
make any such expenditures, nor shall the making thereof relieve
Borrower of any default.
11.02. LENDER'S OBLIGATIONS AND DUTIES. Anything herein to the
contrary notwithstanding, Borrower shall remain liable under each
contract or agreement comprised in the Collateral to be observed or
performed by Borrower thereunder.
Lender shall not have any obligation or liability under any such
contract or agreement by reason of or arising out of this Agreement or
the receipt by Lender of any payment relating to any of the Collateral,
nor shall Lender be obligated in any manner to perform any of the
obligations of Borrower under or pursuant to any such contract or
agreement, to make inquiry as to the nature or sufficiency of any
payment received by Lender in respect of the Collateral or as to the
sufficiency of any performance by any party under any such contract or
agreement, to present or file any claim, to take any action to enforce
any performance or to collect the payment of any amounts which may have
been assigned to Lender or to which Lender may be entitled at any time
or times. Lender's sole duty with respect to the custody, safe keeping
and physical preservation of the Collateral in its possession, under
Section 9-207 of the Uniform Commercial Code of the State or otherwise,
shall be to deal with such Collateral in the same manner as Lender deals
with similar property for its own account.
12. SECURITIES AND DEPOSITS. Lender may at any time at its option,
transfer to itself or any nominee any securities constituting Collateral,
receive any income thereon and hold such income as additional Collateral or
apply it to the Obligations. Upon the occurrence of a Default or Event of
Default, Lender may demand, xxx for, collect, or make any settlement or
compromise which it deems desirable with respect to the Collateral. Regardless
of the adequacy of Collateral or any other security for the Obligations, any
deposits or other sums at any time credited by or due from Lender to Borrower
may at any time be applied to or set off against any of the Obligations then due
and owing.
13. NOTIFICATION TO ACCOUNT DEBTORS AND OTHER PERSONS OBLIGATED ON
COLLATERAL. If a Default or an Event of Default shall have occurred and be
continuing, Borrower shall, at the request of Lender, notify account debtors and
other persons obligated on any of the Collateral of the security interest of
Lender in any account, chattel paper, general intangible, instrument or other
Collateral and that payment thereof is to be made directly to Lender or to any
financial institution designated by Lender as Lender's agent therefor, and
Lender may itself, if a Default or an Event of Default shall have occurred and
be continuing beyond the applicable cure period, if any, without notice to or
demand upon Borrower, so notify account debtors and other persons obligated on
Collateral. After the making of such a request or the giving of any such
notification, Borrower shall hold any proceeds of collection of accounts,
chattel paper, general intangibles, instruments and other Collateral received by
Borrower as trustee for Lender without commingling the same with other funds of
Borrower and shall turn the same over to Lender in the identical form received,
together with any necessary endorsements or assignments. Lender shall apply the
proceeds of collection of accounts, chattel paper, general intangibles,
instruments and other Collateral received by Lender to the Obligations, such
proceeds to be immediately entered after final payment in cash or other
immediately available funds of the items giving rise to them.
14. POWER OF ATTORNEY.
14.01. APPOINTMENT AND POWERS OF LENDER. Borrower hereby
irrevocably constitutes and appoints Lender and any officer or agent
thereof, with full power of substitution, as its true and lawful
attorneys-in-fact with full irrevocable power and authority in the place
and stead of Borrower or in Lender's own name, for the purpose of
carrying out the terms of this Agreement, to take any and all
appropriate action and to execute any and all documents and instruments
that may be necessary or desirable to accomplish the purposes of this
Agreement and, without limiting the generality of the foregoing, hereby
gives said attorneys the power and right, on behalf of Borrower, without
notice to or assent by Borrower, to do the following:
(a) upon the occurrence and during the continuance of an
Event of Default beyond the applicable cure period, if any, generally to
sell, transfer, pledge, make any agreement with respect to or otherwise
deal with any of the Collateral in such manner as is consistent with the
Uniform Commercial Code of the State and as fully and completely as
though Lender were the absolute owner thereof for all purposes, and to
do at Borrower's expense, at any time, or from time to time, all acts
and things which Lender deems necessary to protect, preserve or realize
upon the Collateral and Lender's security interest therein, in order to
effect the intent of this Agreement, all as fully and effectively as
Borrower might do, including, without limitation, (i) the filing and
prosecuting of registration and transfer applications with the
appropriate federal or local agencies or authorities with respect to
trademarks, copyrights and patentable inventions and processes,
(ii) upon written notice to Borrower, the exercise of voting rights with
respect to voting securities, which rights may be exercised, if Lender
so elects, with a view to causing the liquidation in a commercially
reasonable manner of assets of the issuer of any such securities and
(iii) the execution, delivery and recording, in connection with any sale
or other disposition of any Collateral, of the endorsements, assignments
or other instruments of conveyance or transfer with respect to such
Collateral; and
(b) to the extent that Borrower's authorization given in
SECTION 3 is not sufficient, to file such financing statements with
respect hereto, with or without Borrower's signature, or a photocopy of
this Agreement in substitution for a financing statement, as Lender may
deem appropriate and to execute and/or file in Borrower's name such
financing statements and amendments thereto and continuation statements
which may require Borrower's signature.
14.02. RATIFICATION BY BORROWER. To the extent permitted by
law, Borrower hereby ratifies all that said attorneys shall lawfully do
or cause to be done by virtue hereof This power of attorney is a power
coupled with an interest and shall be irrevocable.
14.03. NO DUTY ON LENDER. The powers conferred on Lender
hereunder
are solely to protect its interests in the Collateral and shall not
impose any duty upon it to exercise any such powers. Lender shall be
accountable only for the amounts that it actually receives as a result
of the exercise of such powers and neither it nor any of its officers,
directors, employees or agents shall be responsible to Borrower for any
act or failure to act, except for Lender's own gross negligence or
willful misconduct.
15. REMEDIES. If an Event of Default shall have occurred and be
continuing beyond the applicable cure period, if any, Lender may, without notice
to or demand upon Borrower, declare this Agreement to be in default, and Lender
shall thereafter have in any jurisdiction in which enforcement hereof is sought,
in addition to all other rights and remedies, the rights and remedies of a
secured party under the Uniform Commercial Code of the State or of any
jurisdiction in which Collateral is located, including, without limitation, the
right to take possession of the Collateral, and for that purpose Lender may, so
far as Borrower can give authority therefor, enter upon any premises on which
the Collateral may be situated and remove the same therefrom. Lender may in its
discretion require Borrower to assemble all or any part of the Collateral at
such location or locations within the jurisdictions of Borrower's principal
office(s) or at such other locations as Lender may reasonably designate. 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 to Borrower at
least ten Business Days prior written notice of the time and place of any public
sale of Collateral or of the time after which any private sale or any other
intended disposition is to be made. Borrower hereby acknowledges that ten
Business Days prior written notice of such sale or sales shall be reasonable
notice. In addition, Borrower waives any and all rights that it may have to a
judicial hearing in advance of the enforcement of any of Lender's rights
hereunder, including, without limitation, its right following an Event of
Default to take immediate possession of the Collateral and to exercise its
rights with respect thereto.
16. STANDARDS FOR EXERCISING REMEDIES. To the extent that
applicable law imposes duties on Lender to exercise remedies in a commercially
reasonable manner, Borrower acknowledges and agrees that it is not commercially
unreasonable for Lender (a) to fail to incur expenses reasonably deemed
significant by Lender to prepare Collateral for disposition or otherwise to
complete raw material or work in process into finished goods or other finished
products for disposition, (b) to fail to obtain third party consents for access
to Collateral to be disposed of, or to obtain or, if not required by other law,
to fail to obtain governmental or third party consents for the collection or
disposition of Collateral to be collected or disposed of, (c) to fail to
exercise collection remedies against account debtors or other persons obligated
on Collateral or to remove liens or encumbrances on or any adverse claims
against Collateral, (d) to exercise collection remedies against account debtors
and other persons obligated on Collateral directly or through the use of
collection agencies and other collection specialists, (e) to advertise
dispositions of Collateral through publications or media of general circulation,
whether or not the Collateral is of a specialized nature, (f) to contact other
persons, whether or not in the same business as Borrower, for expressions of
interest in acquiring all or any portion of the Collateral, (g) to hire one or
more professional auctioneers to
assist in the disposition of Collateral, whether or not the collateral is of a
specialized nature, (h) to dispose of Collateral by utilizing Internet sites
that provide for the auction of assets of the types included in the Collateral
or that have the reasonable capability of doing so, or that match buyers and
sellers of assets, (i) to dispose of assets in wholesale rather than retail
markets, (j) to disclaim disposition warranties, (k) to purchase insurance or
credit enhancements to insure Lender against risks of loss, collection or
disposition of Collateral or to provide to Lender a guaranteed return from the
collection or disposition of Collateral, or (l) to the extent deemed appropriate
by Lender, to obtain the services of other brokers, investment bankers,
consultants and other professionals to assist Lender in the collection or
disposition of any of the Collateral. Borrower acknowledges that the purpose of
this SECTION 16 is to provide non-exhaustive indications of what actions or
omissions by Lender would not be commercially unreasonable in Lender's exercise
of remedies against the Collateral and that other actions or omissions by Lender
shall not be deemed commercially unreasonable solely on account of not being
indicated in this SECTION 16. Without limitation upon the foregoing, nothing
contained in this SECTION l6 shall be construed to grant any rights to Borrower
or to impose any duties on Lender that would not have been granted or imposed by
this Agreement or by applicable law in the absence of this SECTION 16.
17. NO WAIVER BY LENDER, ETC. Lender shall not be deemed to have
waived any of its rights upon or under the Obligations or the Collateral unless
such waiver shall be 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 on any one occasion shall not be construed as
a bar to or waiver of any right on any future occasion. All rights and remedies
of Lender with respect to the Obligations or the Collateral, whether evidenced
hereby or by any other instrument or papers, shall be cumulative and may be
exercised singularly, alternatively, successively or concurrently at such time
or at such times as Lender deems expedient.
18. SURETYSHIP WAIVERS BY BORROWER. Borrower waives demand, notice,
protest, notice of acceptance of this Agreement, notice of loans made, credit
extended, Collateral received or delivered or other action taken in reliance
hereon and all other demands and notices of any description. With respect to
both the Obligations and the Collateral, Borrower assents to any extension or
postponement of the time of payment or any other indulgence, to any
substitution, exchange or release of or failure to perfect any security interest
in any Collateral, to the addition or release of any party or person primarily
or secondarily liable, to the acceptance of partial payment thereon and the
settlement, compromising or adjusting of any thereof, all in such manner and at
such time or times as Lender may deem advisable. Lender shall have no duty as to
the collection or protection of the Collateral or any income thereon, nor as to
the preservation of rights against prior parties, nor as to the preservation of
any rights pertaining thereto beyond the safe custody thereof as set forth in
SECTION 11.02. Borrower further waives any and all other suretyship defenses.
19. MARSHALING. Lender shall not be required to marshal any present
or future collateral security (including but not limited to this Agreement and
the Collateral) for, or other assurances of payment of, the Obligations or any
of them or to resort to such
collateral security or other assurances of payment in any particular order, and
all of its rights hereunder and in respect of such collateral security and other
assurances of payment shall be cumulative and in addition to all other rights,
however existing or arising. To the extent that it lawfully may, Borrower hereby
agrees that it will not invoke any law relating to the marshalling of collateral
which might cause delay in or impede the enforcement of Lender's rights under
this Agreement or under any other instrument creating or evidencing any of the
Obligations or under which any of the Obligations is outstanding or by which any
of the Obligations is secured or payment thereof is otherwise assured, and, to
the extent that it lawfully may, Borrower hereby irrevocably waives the benefits
of all such laws.
20. PROCEEDS OF DISPOSITIONS; EXPENSES. Borrower shall pay to
Lender on demand any and all expenses, including reasonable attorneys' fees and
disbursements, incurred or paid by Lender in protecting, preserving or enforcing
Lender's rights under or in respect of any of the Obligations or any of the
Collateral. After deducting all of said expenses, the residue of any proceeds of
collection or sale of the Obligations or Collateral shall, to the extent
actually received in cash, be applied to the payment of the Obligations in such
order or preference as Lender may determine, proper allowance and provision
being made for any Obligations not then due. Upon the final payment and
satisfaction in full of all of the Obligations and after making any payments
required by Sections 9-608(a)(1)(C) or 9-615(a)(3) of the Uniform Commercial
Code of the State, any excess shall be returned to Borrower, and Borrower shall
remain liable for any deficiency in the payment of the Obligations.
21. OVERDUE AMOUNTS. Until paid, all amounts due and payable by
Borrower hereunder shall be a debt secured by the Collateral and shall bear,
whether before or after judgment, interest at the rate of interest for overdue
principal set forth in the Credit Agreement.
22. GOVERNING LAW; CONSENT TO JURISDICTION. THIS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE. Borrower
agrees that any suit for the enforcement of this Agreement may be brought in the
courts of the State or any federal court sitting therein and consents to the
non-exclusive jurisdiction of such court. Borrower hereby waives any objection
that it may now or hereafter have to the venue of any such suit or any such
court or that such suit is brought in an inconvenient court.
23. WAIVER OF JURY TRIAL. THE PARTIES WAIVE THEIR RIGHT TO A JURY
TRIAL WITH RESPECT TO ANY ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN
CONNECTION WITH THIS AGREEMENT, ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THE
PERFORMANCE OF ANY SUCH RIGHTS OR OBLIGATIONS. Except as prohibited by law,
Borrower waives any right which it may have to claim or recover in any
litigation referred to in the preceding sentence any special, exemplary,
punitive or consequential damages or any damages other than, or in addition to,
actual damages. Borrower (i) certifies that neither Lender nor any
representative, agent or attorney of Lender has represented, expressly or
otherwise, that
Lender would not, in the event of litigation, seek to enforce the foregoing
waivers and (ii) acknowledges that, in entering into the Credit Agreement and
the other loan documents to which Lender is a party, Lender is relying upon,
among other things, the waivers and certifications contained in this SECTION 23.
24. MISCELLANEOUS. The headings of each section of this Agreement
are for convenience only and shall not define or limit the provisions thereof.
This Agreement and all rights and obligations hereunder shall be binding upon
Borrower and its respective successors and assigns, and shall inure to the
benefit of Lender and its successors and assigns. If any term of this Agreement
shall be held to be invalid, illegal or unenforceable, the validity of all other
terms hereof shall in no way be affected thereby, and this Agreement shall be
construed and be enforceable as if such invalid, illegal or unenforceable term
had not been included herein. Borrower acknowledges receipt of a copy of this
Agreement.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
BORROWER:
EAST KANSAS AGRI-ENERGY, L.L.C.
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
LENDER:
HOME FEDERAL SAVINGS BANK
By: /s/ Xxxx Xxxxxxxx
-------------------------------------
Name: Xxxx Xxxxxxxx
Title: Vice President
SCHEDULE 9(a)
LOCATION OF COLLATERAL
000 0/0 Xxxx 0xx Xxxxxx, X.X. Xxx 000, Xxxxxxx, Xxxxxx 00000
