EXHIBIT 10.2
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SECURITY AGREEMENT - Equipment and Motor Vehicles DATE OF AGREEMENT
APRIL 29, 1997
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DEBTOR NAME AND ADDRESS LENDER NAME AND ADDRESS
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Silverado Foods, Inc. Bank of Oklahoma, N.A.
6846 S. Canton #110 P. O. ▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
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As of the Date indicated above, the undersigned Debtor and the undersigned
Lender, with addresses as they appear herein, agree as follows:
▇. ▇▇▇▇▇ OF A SECURITY INTEREST. For value received, Debtor hereby grants to
Lender a security interest in the property described in Paragraph II, which
property is hereinafter referred to collectively as "Collateral". This security
interest is given to secure the obligations of the Debtor to Lender as more
fully set forth in Paragraphs IV and V hereof.
II. COLLATERAL. The collateral shall include the property described below, all
additions, accessions and substitutions thereto and therefor, and all
accessories, parts and equipment now or hereafter affixed thereto or used in
connection therewith. The Collateral shall also include all similar property
hereafter acquired. The Collateral shall in addition include the proceeds and
products of the Collateral and all money and property owned by Debtor which is
now or which hereafter may be possessed or controlled by Lender, whether by
pledge, deposit or otherwise.
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COLLATERAL
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A. SPECIFICALLY DESCRIBED COLLATERAL. All Machinery and Equipment of Debtor, now
owned or hereafter acquired, all additions, accessions and substitutions
thereto and therefor and all accessories, parts and equipment now or
hereafter affixed thereto or used in connection therewith and all goods
acquired with the proceeds thereof.
B. USE OF COLLATERAL. Debtor warrants that the Collateral is to be used
primarily for one or more of the following purposes only:
[ ] Farming operations, or [X] Business other than farming operations.
C. OWNERSHIP OF COLLATERAL. Debtor warrants that the Collateral is:
[X] Now owned solely by Debtor, or [ ] Being acquired solely by Debtor
with the proceeds of loans secured by this Agreement.
D. LOCATION OF COLLATERAL. Debtor warrants that the location of the Collateral
will not be changed except with the written prior consent of Lender, and that
the Collateral is or promptly will be located as follows: ▇▇▇▇ ▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
[ ] At Debtor's address as shown above,
or
[X] at the following address:
▇▇▇▇ ▇. ▇▇▇▇ ▇▇., ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
E. VEHICLES. If Collateral includes a vehicle (or vehicles) covered by a
certificate of title registration, Debtor warrants that the location of the
Collateral indicated above is the place where the Collateral normally will be
garaged, hangared, moored or otherwise kept between uses. Debtor warrants
said vehicle (or vehicles) is now or promptly will be registered and licensed
as follows:
State of Oklahoma
F. MOBILE GOODS. If the Collateral includes "mobile equipment" not covered by a
certificate of title registration (examples being some motor vehicles,
trailers, airplanes, shipping containers, road building and construction
machinery, commercial harvesters, oil rigs and such other mobile goods which
are capable of being used in more than one jurisdiction whether or not Debtor
intends to so use), Debtor warrants that the locations of such Collateral as
set forth above is the place where it will be normally located when not in
use.
G. FIXTURES. If the Collateral is to become a fixture, Debtor warrants that it
has not yet been affixed to any real property, and when it is, it will be
affixed to real property having the following legal description:
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III. ADDRESS OF DEBTOR. Debtor warrants that the address shown above is
Debtor's residence, or if Debtor is a corporation or a partnership, that the
above address is its place of business or its chief executive office if it has
more than one place of business. Debtor agrees to notify Lender promptly of any
change of address.
IV. OBLIGATIONS OF DEBTOR SECURED BY THIS AGREEMENT. The security interest
herein granted is given to secure all of the obligations of Debtor to Lender
including: A. The performance of all agreements, covenants and warranties of
the Debtor as set forth in this or any other agreement between the parties; B.
All liabilities of Debtor to Lender of every kind and description including:
(1) all future advances, (2) both direct and indirect liabilities, (3)
liabilities due or to become due and whether absolute or contingent, and (4)
liabilities now existing or hereafter arising and however evidenced; C. All
extensions and renewals of liabilities for any term or terms; D. All interest
due or to become due on the liabilities of Debtor to Lender; E. All
expenditures by Lender for taxes and insurance on, repairs to and maintenance of
Collateral; F. All expenditures by Lender involving the performance of or
enforcement of any agreement, covenant or warranty provided for by this or any
other agreement between the parties; and G. All costs, attorneys' fees and
other expenditures of Lender in the collection and enforcement of any obligation
or liability of Debtor to Lender and in the collection and enforcement of or
realization upon any of the Collateral.
V. FUTURE ADVANCES. It is specifically agreed that the obligations of Debtor
secured by this Agreement include all future advances by Lender to Debtor as set
forth in Paragraph IV above.
VI. ADDITIONAL PROVISIONS. This Agreement is subject to Additional Provisions
set forth on the second page hereof, the same being incorporated herein by
reference.
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LENDER NAME DEBTOR SIGNATURE
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Bank of Oklahoma, N.A. Silverado Foods, Inc.
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Vice Pres ▇▇▇▇▇▇▇▇ Field, CEO
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ADDITIONAL PROVISIONS
DEBTOR EXPRESSLY WARRANTS, COVENANTS AND AGREES:
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WARRANTIES AND COVENANTS
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A. RECORDS AND INFORMATION
1. Financial Information. All loan applications, balance sheets, earnings
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statements, other financial information and other representations which have
been, or may hereafter be, furnished to Lender to induce it to enter into or
continue a financial transaction with Debtor fairly represent the financial
condition of Debtor as of the date and for the period shown therein, and all
other information, reports, documents, papers and data furnished to Lender are
or shall be, at the time furnished, accurate and correct in all material
respects and complete insofar as completeness may be necessary to give Lender a
true and accurate knowledge of the subject matter. There has been no material
change in the financial condition of Debtor since the effective date of the last
furnished financial information which has not been reported to Lender in
writing.
2. Furnishing of Information on Collateral. Debtor will furnish Lender
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information adequate to identify with accuracy all Collateral in a form and
substance and at times as may be requested by Lender. Debtor will also upon
request deliver to Lender true copies of purchase orders, shipping and delivery
receipts and invoices evidencing and describing the Collateral. Debtor will
execute such documents as Lender may from time to time require to enable Lender
to perfect the security interest granted hereby and to receive proceeds of and
distributions from or interests in the Collateral.
3. Residence, Use and Location. Statements herein as to Debtor's address and
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as to location, possession and use of the Collateral are true. Debtor agrees
immediately to notify Lender in writing of any proposed change in Debtor's
address and to provide such notification prior to the proposed effective date
thereof. Debtor will not permit any of the Collateral to be removed (except for
normal use) from the location specified herein without the written consent of
Lender.
4. Maintenance, Inspection and Records. Debtor, at own expense, shall keep
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the Collateral in good condition and repair, shall not permit it to be misused
or abused or wasted or allowed to deteriorate except for the ordinary wear and
tear of its intended primary use, shall prudently protect the Collateral from
the elements, shall use the described property lawfully and not permit its
illegal use or its use in a manner not permitted by the written insurance
coverage. Debtor will at all times maintain accurate books and records covering
the Collateral. Lender is hereby given the right and privilege of making such
inspections of the collateral and records of the Debtor relating to the
Collateral at any time and from time to time. Debtor agrees to assist Lender in
every way necessary to facilitate such inspections, audits and verifications.
▇. ▇▇▇▇ STATUS, INSURANCE AND ORDINARY COURSE DISPOSITION
1. Ownership Free of Encumbrances. Except for the security interest granted
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hereby, Debtor now owns, or will use the proceeds of the advances hereunder to
become the owner of, the Collateral free from any prior lien, security interests
or encumbrances, and Debtor warrants title to all will defend the Collateral
against all claims and demands of persons claiming any interest therein adverse
to the Lender. Debtor will not permit any liens or security interests other than
the Lender's security interest to attach to any of the Collateral, will not
permit the Collateral to be levied upon, garnished or attached under any legal
process, or permit any other thing to be done that may impair the value of the
Collateral or the security interest afforded hereby.
2. Sale, Lease or Disposition of Collateral Prohibited. Debtor shall not
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sell, transfer, exchange, lease or otherwise dispose of the Collateral or any
part thereof or the Debtor's rights therein without first obtaining the prior
written consent of Lender, except as to inventory sold or disposed of in the
ordinary course of business. The consent of Lender may be conditioned upon any
requirements which the Lender deems to be for its protection; and it is
understood and agreed that such consent will not be deemed to be effective
unless and until such requirements and conditions have been fulfilled.
3. Financing Statement. No Financing Statement, or other instrument of
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encumbrance, covering Collateral is on file in any public office. Debtor agrees
to join with Lender in executing one or more Financing Statements, or other
instrument of encumbrance, in form satisfactory to Lender, in order to perfect,
or to continue perfection of, the security interest of Lender which may arise
hereunder.
4. Taxes. Debtor shall promptly pay any and all taxes, assessments and
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license fees with respect to the Collateral or the use of the Collateral.
5. Adequate Insurance. Debtor at own expense shall insure Collateral with
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companies acceptable to Lender against such casualties and in such amounts as
prudent and adequate to protect Lender or as Lender shall require. All insurance
policies shall be written for benefit of Debtor and Lender as their interests
appear and such policies or certified copies thereof evidencing same shall be
furnished to Lender within ten days of date of this Agreement. All policies of
insurance shall provide for at least ten days prior written notice of
cancellation to Lender. Lender may act as attorney for Debtor in the procuring
of insurance, in making, adjusting, and settling claims under or cancelling such
insurance and in endorsing Debtor's name on any drafts or checks drawn by
insurers of Collateral.
6. Affixing to Real or Personal Property Prohibited. Debtor shall not permit
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any of the Collateral to become an accession or affixed to other personal
property or to become attached or affixed to real property without first
obtaining prior written consent of Lender. The consent of Lender may be
conditional upon any requirements (including, but not limited to, the
subrogation of other interest owners in and to such other personal or real
property to the rights and interest of Lender) which requirements Lender deems
to be for its protection; and it is understood and agreed that such consent will
not be deemed to be effective until such conditions and requirements have been
fulfilled.
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EVENTS OF DEFAULT
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Debtor shall be in default under this Agreement upon the happening of any of the
following events or conditions, herein called "Events of Default":
1. Any warranty, covenant, agreement, representation, financial information
or statement made or furnished to Lender by or in behalf of Debtor to induce
Lender to enter into this Agreement, or in conjunction therewith, is violated or
proves to have been false in any material respect when made or furnished.
2. Any payment required hereunder or under any not or obligation of Debtor to
this Lender or to others is not made when due or in accordance with terms of the
applicable contract.
3. Debtor defaults in the performance of any covenant, obligation, warranty
or provision contained in any Loan Agreement or in any other note or obligation
of Debtor to Lender or to others.
4. The occurrence of any event or condition which results in acceleration of
the maturity of any obligation of Debtor to Lender or to others under any note,
indenture, agreement or undertaking.
5. Loss, theft, substantial damage to or destruction of Collateral.
6. The making of any levy against or seizure, garnishment or attachment of
any Collateral, the consensual encumbrance thereof by Debtor, or the sale, lease
or other disposition of Collateral by Debtor without the prior written consent
of Lender as required elsewhere in the Agreement, except inventory sold in the
ordinary course of business.
7. When in the judgment of Lender the Collateral becomes unsatisfactory or
insufficient in character or value, and upon request Debtor fails to provide
additional Collateral as required by Lender.
8. Any time Lender in its sole discretion believes the prospect of payment or
performance of any liability, covenant, warranty or obligation secured hereby is
impaired.
9. The death, dissolution, termination or existence or insolvency of Debtor,
the appointment of a receiver over any part of debtor's property or any part of
the Collateral, an assignment for the benefit of creditors, or the commencement
of any proceeding under any bankruptcy or insolvency law by or against debtor or
any guarantor or surety for Debtor.
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REMEDIES
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Upon the occurrence of an Event of Default, and at any time thereafter, Lender
may at is option and without notice or demand to Debtor except as otherwise
provided by law, exercise any and all rights and remedies provided by the
Uniform Commercial Code of the state in which Lender is organized or holds its
certificate of authority, as well as all other rights and remedies possessed by
Lender, including, but not limited to:
1. Declare all liabilities secured hereby immediately due and payable, and/or
proceed to enforce payment and performance of all liabilities secured hereby.
2. Require Debtor to assemble Collateral or evidence thereof and make it
available to Lender at any place designated by Lender which is reasonably
convenient to both parties.
3. Repossess the Collateral, and for this purpose Lender is hereby granted
authority to enter into and upon any premises on which Collateral or any party
may be situated, and to remove it as a part of such repossession. Debtor also
consents to the removal of any other personal property attached to or contained
in the Collateral, to its retention by Lender until called for by Debtor and, if
not called for within thirty (30) days, to its disposition in any manner by
Lender.
4. Possess all books and records evidencing or pertaining to the Collateral,
and for this purpose Lender is hereby given authority to enter into and upon any
premises at which such books and records or any part of them may be situated,
and to remove them.
5. Apply that portion of the Collateral consisting of cash or cash equivalent
items such as checks, drafts or deposited funds against any liabilities of
Debtor selected by Lender, and for this purpose Debtor agrees that cash or
equivalents will be considered identical to cash proceeds. Lender shall have the
right immediately and without further action by it to set off against the
liabilities secured hereby all money owed by Lender to Debtor, whether due or
not due, and Lender shall be deemed to have exercised such right to set off and
to have made a charge against such money at the time of any acceleration upon
default even though such charges made are entered on the Lender's books
subsequent thereto.
6. Transfer any of the Collateral or evidence thereof into its own name or
that of a nominee and receive the proceeds therefrom and hold the same as
security for the liabilities of Debtor to Lender or apply it on or against any
such liability. Lender may also demand, collect, receipt for, settle,
compromise, adjust, ▇▇▇ for, foreclose, release or realize upon Collateral in
its own name or int he name of the Debtor as Lender may determine.
7. Sell or otherwise dispose of the Collateral. Unless Collateral in whole or
part is perishable or threatens to decline speedily in value or is of a type
customarily sold on a recognized market, Lender will give Debtor reasonable
notice of the time and place of any public sale, or of the time after which any
private sale or other disposition is to be made. Any requirement of notice shall
be met if notice is mailed, postage prepaid, to the address of Debtor provided
herein at least ten days before sale or other disposition or action. Lender
shall be entitled to, and Debtor shall be liable for, all reasonable costs, fees
for replevin bonds, storage, repossession costs, repair and preparation costs
for sale, selling costs and reasonable attorneys' fees as set forth in any
promissory note. All such costs shall be secured by the security interest in the
Collateral covered herein.
8. Lender shall not be liable for failure to collect any account, enforce any
contract right, or for any other act or omission on the part of Lender, its
officers, agents or employees, except as the same constitutes a lack of good
faith or failure to act in a commercially reasonable manner. Lender shall have
acted in a commercially reasonable manner if its action or non-action is
consistent with the general usage of lenders in the area of Lender's location at
the time the action or non-action occurs, but this standard shall not constitute
disapproval of any procedures which may be otherwise reasonable under the
circumstances nor require Lender to take necessary steps to preserve rights
against prior parties in an instrument or chattel paper.
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GENERAL
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1. Expenditures of Lender. At its option and after any written notice to
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Debtor required by law, which notice Debtor and Lender hereby agrees is
sufficient if mailed, postage prepaid, to the address of Debtor provided for
herein at least ten days before the commencement of the performance of the
duties specified therein, it is agreed Lender may discharge taxes, liens,
security interests or other encumbrances on the Collateral and may pay for the
repair of any damage to the Collateral, for the maintenance and preservation
thereof and for insurance thereon. Debtor shall be liable for and agrees to pay
Lender for all expenditures of Lender for taxes on the Collateral, for the
discharge of liens, security interests or other encumbrances on the Collateral,
for the repair of any damage to Collateral, and for all costs, attorneys' fees
and other disbursements of Lender in connection with the foregoing. Debtor
agrees promptly to reimburse Lender for all such expenditures and until such
reimbursement the amounts of such expenditures shall be considered a liability
of Debtor to Lender which is secured by this Agreement. In addition, Debtor
shall be liable for and agrees to pay Lender for all costs, attorney's fees and
other disbursements of Lender as allowed by law or provided for herein in the
enforcement or collection of any note, warranty or liability of Debtor to
Lender, or in the realization upon or the enforcement or collection of any
account receivable, contract right, promissory note, chattel paper, instrument,
documents or other Collateral in which Lender has a security interest. Debtor
agrees promptly to reimburse Lender for all such expenditures, and until such
reimbursement the amounts of such expenditures shall be considered a liability
of Debtor to Lender which is secured by this Agreement.
2. Right of Offset. Any property, tangible or intangible, of Debtor in
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possession of Lender at any time during the term hereof, or any indebtedness due
from Lender to Debtor and any deposit or credit balances due from Lender to
Debtor, or any of the foregoing of any party hereto, is pledged to secure
payment hereof and may at any time while the whole or any part of Debtor's
indebtedness to Lender remains unpaid, whether before or after maturity thereof,
be appropriated, held or applied toward the payment of any obligation of Debtor
to Lender.
3. Applicable Law. The law of the jurisdiction where Lender is organized or
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holds its certificate of authority shall control this Agreement.
4. Waivers. No act, delay or omission, including Lender's waiver of remedy
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because of any default hereunder, shall constitute a waiver of any of Lender's
rights and remedies under this Agreement or any other agreement between the
parties. All rights and remedies of Lender are cumulative and may be exercised
singularly or concurrently, and the exercise of any one or more remedy will not
be a waiver of any other. No waiver, change, modification or discharge of any of
Lender's rights or of Debtor's duties as so specified or allowed will be
effective unless in writing and signed by a duly authorized officer of Lender,
and any such waiver will not be a bar to the exercise of any right or remedy on
any subsequent default. No officer or employee of Lender has authority to waiver
or modify the provisions of this paragraph.
5. Agreement Binding on Assigns. This Agreement shall inure to the benefit of
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the successors and assigns of Lender and shall be binding upon the heirs,
executors, administrators, successors and assigns of Debtor.
6. Rights of Lender Assignable. Lender at any time and at its option may
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pledge, transfer or assign its rights under this Agreement in whole or in part,
and any pledgee, transferee or assignee shall have all the rights of Lender as
to the rights or parts thereof so pledged, transferred or assigned. The rights
of the Debtor hereunder may not be assigned.
7. Joint and Several Responsibility of Debtor. If more than one Debtor
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executes this Agreement, their responsibility hereunder shall be joint and
several and the reference to Debtor herein shall be deemed to refer to each
Debtor.
8. Separability of Provisions. If any provision of this Agreement shall
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for any reason be held to be invalid or unenforceable, such invalidity or shall
not affect any other provision hereof, and this Agreement shall be construed as
if such invalid or unenforceable provision had never been contained herein.
9. Copies. A carbon, photographic, or other reproduction of this Security
Agreement or of any financing statement prepared or filed with respect hereto is
sufficient as a financing statement.
10. Notice of Name Change, etc. Debtor will immediately notify Lender of any
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change in his, her, its or their name, identity, or organizational or corporate
structure. 11. Notice of Movement of Collateral. Debtor will immediately notify
Lender of any movement or relocation of the Collateral, or any part thereof or
any records relating thereto, from any county or state to another county or
state.
11. Notice of Movement of Collateral. Dealer will immediately notify Lender
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of any movement or relocation of the Collateral, or any part thereof or any
records relating thereto, from any county or state or another county or state.
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Page 2 of 2 ___________ Borrower's Initials