HomeMy WebLinkAboutC03-160 Wells Fargo Bank~v~~~ ~nvlo
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SECURITY AGREEMENT:
SPECIFIC RIGHTS TO PAYMENT
1. GRANT OF SECURITY INTEREST. For valuable consideration, the
undersigned EAGLE COUNTY, COLORADO, or any of them ("Debtor"), hereby grants and
trans~~rs to WELLS FARGO BANK WEST, NATIONAL ASSOCIATION ("Bank") a security
interES~ in the following accounts, deposit accounts, chattel paper (wf`~ether electronic or
tangiiol~:), instruments, promissory notes, documents, general intangii~les, payment intangibles,
software, letter of credit rights, health-care insurance receivables and other rights to payment
(collectively called "Collateral"):
~~ ~~
Certificate of Deposit No. ~~ ~O'Z issued by or maintained with Wells
Fargo Bank West, N. A., however evidenced, and all monies, now or
hereafter deposited therein and due or to become due and payable thereon,
and all instruments, documents, claims and rights to payment with respect
thereto, and replacements, substitutions and renewals thereof,
and all renewals thereof, including all securities, guaranties, warranties, indemnity agreements,
insurance policies, supporting obligations and other agreements pertaining to the same or the
property described therein, together with whatever is receivable or received when any of the
Collateral or proceeds thereof are sold, collected, exchanged or otherwise disposed of, whether
such disposition is voluntary or involuntary, including without limitation, all rights to payment,
including returned premiums, with respect to any insurance relating to any of the foregoing, and
all rights to payment with respect to any cause of claim or action affecting or relating to any of
the foregoing (hereinafter called "Proceeds").
2. OBLIGATIONS SECURED. The obligations secured hereby are the payment
and perFormance of: (a) all present and future Indebtedness of Debtor to Bank; (b) all
obligations of Debtor and rights of Bank under this Agreement; and (c) all present and future
obligations of Debtor to Bank of other kinds. The word "Indebtedness" is used herein in its most
comprehensive sense and includes any and all advances, debts, obligations and liabilities of
Debtor, or any of them, heretofore, now or hereafter made, incurred or created, whether
voluntary or involuntary and however arising, whether due or not due, absolute or contingent,
liquidated or unliquidated, determined or undetermined, and whether Debtor may be liable
individually or jointly with others, or whether recovery upon such Indebtedness may be or
hereafter becomes unenforceable.
3. TERMINATION. This Agreement will terminate upon the performance of all
obligations of Debtor to Bank, including without limitation, the payment of all Indebtedness of
Debtor to Bank, and the termination of all commitments of Bank to extend credit to Debtor,
existing at the time Bank receives written notice from Debtor of the termination of this
Agreement.
4. OBLIGATIONS OF BANK. Bank has no obligation to make any loans
hereunder. Any money received by Bank in respect of the Collateral may be deposited, at
Bank's option, into anon-interest bearing account over which Debtor shall have no control, and
the same shall, for all purposes, be deemed Collateral hereunder.
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5. REPRESENTATIONS AND WARRANTIES. Debtor represents and warrants to
Bank that: (a) Debtor's legal name is exactly as set forth on the first page of this Agreement,
and all of Debtor's organizational documents or agreements delivered to Bank are complete and
accurate in every respect; (b) Debtor is the owner and has possession or control of the
Collateral and Proceeds; (c) Debtor has the exclusive right to grant a security interest in the
Collateral and Proceeds; (d) all Collateral and Proceeds are genuine, free from liens, adverse
claims, setoffs, default, prepayment, defenses and conditions precedent of any kind or
character, except the lien created hereby or as otherwise agreed to by Bank, or as heretofore
disclosed by Debtor to Bank, in writing; (e) all statements contained herein and, where
applicable, in the Collateral are true and complete in all material respects; (f) no financing
statement covering any of the Collateral or Proceeds, and naming any secured party other than
Bank, is on file. in any public office; (g) all persons appearing to be obligated on Collateral and
Proceeds have authority and capacity to contract and are bound as they appear to be; (h) all
property subject to chattel paper has been properly registered and filed in compliance with law
and to perfect the interest of Debtor in such property; and (i) all Collateral and Proceeds comply
with all applicable laws concerning form, content and manner of preparation and execution,
including where applicable Federal Reserve Regulation Z and any State consumer credit laws.
6. COVENANTS OF DEBTOR.
(a) Debtor agrees in general: (i) to pay Indebtedness secured hereby when due; (ii)
to indemnify Bank against all losses, claims, demands, liabilities and expenses of every kind
caused by property subject hereto; (iii) to pay all costs and expenses, including reasonable
attorneys' fees, incurred by Bank in the perfection and preservation of the Collateral or Bank's
interest therein and/or the realization, enforcement and exercise of Bank's rights, powers and
remedies hereunder; (iv) to permit Bank to exercise its powers; (v) to execute and deliver such
documents as Bank deems necessary to create, perfect and continue the security interests
contemplated hereby; (vi) not to change its name, and as applicable, its chief executive office,
its principal residence or the jurisdiction in which it is organized and/or registered without giving
Bank prior written notice thereof; (vii) not to change the places where Debtor keeps any
Collateral or Debtor's records concerning the Collateral and Proceeds without giving Bank prior
written notice of the address to which Debtor is moving same; and (viii) to cooperate with Bank
in perfecting all security interests granted herein and in obtaining such agreements from third
parties as Bank deems necessary, proper or convenient in connection with the preservation,
perfection or enforcement of any of its rights hereunder.
(b) Debtor agrees with regard to the Collateral and Proceeds, unless Bank agrees
otherwise in writing: (i) that Bank is authorized to file financing statements in the name of Debtor
to perfect Bank's security interest in Collateral and Proceeds; (ii) where applicable, to insure the
Collateral with Bank named as loss payee, in form, substance and amounts, under agreements,
against risks and liabilities, and with insurance companies satisfactory to Bank; (iii) not to permit
any lien on the Collateral or Proceeds, except in favor of Bank; (iv) not to sell, hypothecate or
otherwise dispose of, nor permit the transfer by operation of law of, any of the Collateral or
Proceeds or any interest therein, nor withdraw any funds from any deposit account pledged to
Bank hereunder; (v) to keep, in accordance with generally accepted accounting principles,
complete and accurate records regarding all Collateral and Proceeds, and to permit Bank to
inspect the same and make copies thereof at any reasonable time; (vi) if requested by Bank, to
receive and use reasonable diligence to collect Proceeds, in trust and as the property of Bank,
and to immediately endorse as appropriate and deliver such Proceeds to Bank daily in the exact
form in which they are received together with a collection report in form satisfactory to Bank; (vii)
not to commingle Collateral or Proceeds, or collections thereunder, with other property; (viii) in
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the event Bank elects to receive payments of Collateral and Proceeds hereunder, to pay all
expenses incurred by Bank in connection therewith, including expenses of accounting,
correspondence, collection efforts, reporting to account or contract debtors, filing, recording,
record keeping and expenses incidental thereto; and (ix) to provide any service and. do any
other acts which may be necessary to keep all Collateral and Proceeds free and clear of all
defenses, rights of offset and counterclaims.
7. POWERS OF BANK. Debtor appoints Bank its true attorney in fact to perform
any of the following powers, which are coupled with an interest, are irrevocable until termination
of this Agreement and may be exercised from time to time by Bank's officers and employees, ~r
any of them, whether or not Debtor is in default: (a) to perform any obligation of Debtor
hereunder in Debtor's name or otherwise; (b) to give notice to account debtors or others of
Bank's rights in the Collateral and Proceeds, to enforce or forebear from enforcing the same
and make extension or modification agreements with respect thereto; (c) to release persons
liable on Collateral or Proceeds and to give receipts and acquittances and compromise disputes
in connection therewith; (d) to release or substitute security; (e) to resort to security in any order,
(f) to prepare, execute, file, record or deliver notes, assignments, schedules, designation
statements, financing statements, continuation statements, termination statements, statements
of assignment, applications for registration or like papers to perfect, preserve or release Bank's
interest in the Collateral and Proceeds; (g) to receive, open and read mail addressed to Debtor;
(h) to take cash, instruments for the payment of money and other property to which Bank is
entitled; (i) to verify facts concerning the Collateral and Proceeds by inquiry of obligors thereon,
or otherwise, in its own name or a fictitious name; (j) to endorse, collect, deliver and receive
payment under instruments for the payment of money constituting or relating to Proceeds; (k) to
prepare, adjust, execute, deliver and receive payment under insurance claims, and to collect
and receive payment of and endorse any instrument in payment of loss or returned premiums or
any other insurance refund or return, and to apply such amounts received by Bank, at Bank's
sole option, toward repayment of the Indebtedness; (I) to exercise all rights, powers and
remedies which Debtor would have, but for this Agreement, with respect to all Collateral and
Proceeds subject hereto; (m) to make withdrawals from and to close deposit accounts or other
accounts with any financial institution, wherever located, into which Proceeds may have been
deposited, and to apply funds so withdrawn to payment of the Indebtedness; (n) to preserve or
release the interest evidenced by chattel paper to which Bank is entitled hereunder and to
endorse and deliver any evidence of title incidental thereto; and (o) to do all acts and things and
execute all documents in the name of Debtor or otherwise, deemed by Bank as necessary,
proper and convenient in connection with the preservation, perfection or enforcement of its
rights hereunder.
8. PAYMENT OF PREMIUMS, TAXES, CHARGES. LIENS AND ASSESSMENTS.
Debtor agrees to pay, prior to delinquency, all insurance premiums, taxes, charges, liens and
assessments against the Collateral and Proceeds, and upon the failure of Debtor to do so, Bank
at its option may pay any of them and shall be the sole judge of the legality or validity thereof
and the amount necessary to discharge the same. Any such payments made by Bank shall be
obligations of Debtor to Bank, due and payable immediately upon demand, together with
interest at a rate determined in accordance with the provisions of this Agreement, and shall be
secured by the Collateral and Proceeds, subject to all terms and conditions of this Agreement.
9. EVENTS OF DEFAULT. The occurrence of any of the following shall constitute
an "Event of Default" under this Agreement: (a) any default in the payment or performance of
any obligation, or any defined event of default, under (i) any contract or instrument evidencing
any Indebtedness, or (ii) any other agreement between Debtor and Bank, including without
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limitation any loan agreement, relating to or executed in connection with any Indebtedness; (b)
any representation or warranty made by Debtor herein shall prove to be incorrect, false or
misleading in any material respect when made; (c) Debtor shall fail to observe or pertorm any
obligation or agreement contained herein; (d) any impairment of the rights of Bank in any
Collateral or Proceeds, or any attachment or like levy on any property of Debtor, and (e) Bank,
in good faith, believes any or all of the Collateral and/or Proceeds to be in danger of misuse,
dissipation, commingling, loss, theft, damage or destruction, or otherwise in jeopardy or
unsatisfactory in character or value.
10. REMEDIES. Upon the occurrence of any Event of Default, Bank shall have the
right to declare immediately due and payable all or any Indebtedness secured hereby and to
terminate any commitments to make loans or otherwise extend credit to Debtor. Bank shall
have all other rights, powers, privileges and remedies granted to a secured party upon default
under the Colorado Uniform Commercial Code or otherwise provided by law, including without
limitation, the right (a) to contact all persons obligated to Debtor on any Collateral or Proceeds
and to instruct such persons to deliver all Collateral and/or Proceeds directly to Bank, and (b) to
sell, lease, license or otherwise dispose of any or all Collateral. All rights, powers, privileges
and remedies of Bank shall be cumulative. No delay, failure or discontinuance of Bank in
exercising any right, power, privilege or remedy hereunder shall affect or operate as a waiver of
such right, power, privilege or remedy; nor shall any single or partial exercise of any such right,
power, privilege or remedy preclude, waive or otherwise affect any other or further exercise
thereof or the exercise of any other right, power, privilege or remedy. Any waiver, permit,
consent or approval of any kind by Bank of any default hereunder, or any such waiver of any
provisions or conditions hereof, must be in writing and shall be effective only to the extent set
forth in writing. It is agreed that public or private sales or other dispositions, for cash or on
credit, to a wholesaler or retailer or investor, or user of properly of the types subject to this
Agreement, or public auctions, are all commercially reasonable since differences in the prices
generally realized in the different kinds of dispositions are ordinarily offset by the differences in
the costs and credit risks of such dispositions. While an Event of Default exists: (a) Debtor will
deliver to Bank from time to time, as requested by Bank, current lists of all Collateral and
Proceeds; (b) Debtor will not dispose'of any Collateral or Proceeds except on terms approved
by Bank; (c) Bank may, at any time and at Bank's sole option, liquidate any time deposits
pledged to Bank hereunder and apply the Proceeds thereof to payment of the Indebtedness,
whether or not said time deposits have matured and notwithstanding the fact that such
liquidation may give rise to penalties for early withdrawal of funds; and (d) at Bank's request,
Debtor will assemble and deliver all Collateral and Proceeds, and books and records pertaining
thereto, to Bank at a reasonably convenient place designated by Bank. Debtor further agrees
that Bank shall have no obligation to process or prepare any Collateral for sale or other
disposition.
11. DISPOSITION OF COLLATERAL AND PROCEEDS: TRANSFER OF
INDEBTEDNESS. In disposing of Collateral hereunder, Bank may disclaim all warranties of
title, possession, quiet enjoyment and the like. Upon the transfer of all or any part of the
Indebtedness, Bank may transfer all or any part of the Collateral or Proceeds and shall be fully
discharged thereafter from all liability and responsibility with respect to any of the foregoing so
transferred, and the transferee shall be vested with all rights and powers of Bank hereunder with
respect to any of the foregoing so transferred; but with respect to any Collateral or Proceeds not
so transferred Bank shall retain all rights, powers, privileges and remedies herein given. Any
proceeds of any disposition of any of the Collateral or Proceeds, or any part thereof, may be
applied by Bank to the payment of expenses incurred by Bank in connection with the foregoing,
including reasonable attorneys' fees, and the balance of such proceeds may be applied by Bank
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toward the payment of the Indebtedness in such order of application as Bank may from time to
time elect.
12. STATUTE OF LIMITATIONS. Until all Indebtedness shall have been paid in full
and all commitments by Bank to extend credit to Debtor have been terminated, the power of
sale or other disposition and all other rights, powers, privileges and remedies granted to Bank
hereunder shall continue to exist and may be exercised by Bank at any time and from time to
time irrespective of the fact that the Indebtedness or any part thereof may have become barred
by any statute of limitations, or that the personal liability ~+f Debtor may have ceased, unless
such liability shall have ceased due to the payment in full. of all Indebtedness secured
hereunder.
13. MISCELLANEOUS. (a) The obligations of Debtor are joint and several; (b)
Debtor hereby waives any right (i) to require Bank to make any presentment or demand, or give
any notice of nonpayment or nonperformance, protest, notice of protest or notice of dishonor
hereunder, (ii) to direct the application of payments or security for any Indebtedness of Debtor,
or indebtedness of customers of Debtor, or (iii) to require proceedings against others or to
require exhaustion of security; and (c) Debtor hereby consents to extensions, forbearances or
alterations of the terms of Indebtedness, the release or substitution of security, and the release
of any guarantors. Until all Indebtedness shall have been paid in full, no Debtor shall have any
right of subrogation or contribution, and each Debtor hereby waives any benefit of or right to
participate in any of the Collateral or Proceeds or any other security now or hereafter held by
Bank.
14. NOTICES. All notices, requests and demands required under this Agreement
must be in writing, addressed to Bank at the address specified in any other loan documents
entered into between Debtor and Bank and to Debtor at the address of its chief executive office
(or principal residence, if applicable) specified below or to such other address as any party may
designate by written notice to each other party, and shall be deemed to have been given or
made as follows: (a) if personally delivered, upon delivery; (b) if sent by mail, upon the earlier of
the date of receipt or three (3) days after deposit in the U.S. mail, first class and postage
prepaid; and (c) if sent by telecopy, upon receipt.
15. COSTS. EXPENSES AND ATTORNEYS' FEES. Debtor shall pay to Bank
immediately upon demand the full amount of all payments, advances, charges, costs and
expenses, including reasonable attorneys' fees (to include outside counsel fees and all
allocated costs of Bank's in-house counsel), expended or incurred by Bank in exercising any
right, power, privilege or remedy conferred by this Agreement or in the enforcement thereof,
whether incurred at the trial or appellate level, in an arbitration proceeding or otherwise, and
including any of the foregoing incurred in connection with any bankruptcy proceeding (including
without limitation, any adversary proceeding, contested matter or motion brought by Bank or any
other person) relating to Debtor or in any way affecting any of the Collateral or Bank's ability to
exercise any of its rights or remedies with respect thereto. All of the foregoing shall be paid by
Debtor with interest from the date of demand until paid in full at a rate per annum equal to the
greater of ten percent (10%) or Bank's Prime Rate in effect from time to time.
16. SUCCESSORS: ASSIGNS• AMENDMENT. This Agreement shall be binding
upon and inure to the benefit of the heirs, executors, administrators, legal representatives,
successors and assigns of the parties, and may be amended or modified only in writing signed
by Bank and Debtor.
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17. SEVERABILITY OF PROVISIONS. If any provision of this Agreement shall be
held to be prohibited by or invalid under applicable law, such provision shall be ineffective only
to the extent of such prohibition or invalidity, without invalidating the remainder of such provision
or any remaining provisions of this Agreement.
18. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Colorado.
Debtor warrants that Debtor is an organization registered under the laws of the State of
Colorado.
Debtor warrants that its chief executive office (or principal residence, if applicable) is
located at the following address:
IN WITNESS WHEREOF, this Agreement has been duly executed as of
EAGLE COON ,COLORADO
By:
Name: Michael L. Galls r
Title: Chairman
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GOVEPNMENTPL CERTIFICATE
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.
Entity: EAGLE COUNTY TREASURER
P.O. BOX 479
EAGLE , CO 81631-0479
Lender: Wells Fargo Bank West, N.A.
Eagle
P.O. Box 667 / 246 Broadway
Eagle, CO 81631
I, THE UNDERSIGNED, DO HEREBY CERTIFY THAT:
THE ENTITY'S EXISTENCE. The complete and correct name of the governmental entity is EAGLE COUNTY TREASURER ("Entity"-. The Entity
is a governmental entity which is, and at all times shall be, duly organized, validly existing, and in good standing under and by virtue of the laws
and regulations of the State of Colorado The Entity has the full power and authority to own its properties and to transact the business and
activities in which it is presently engaged or presently proposes to engage. The Entity maintains an office at 500 BROADWAY, EAGLE , CO
81631. The Entity shall do all things necessary to preserve and to keep in full force and effect its existence, rights and privileges, and shall
comply with all regulations, rules, ordinances, statutes, orders and decrees of the Entity and any other governmental or quasi-governmental
authority or court applicable to the Entity and the Entity's business activities.
CERTIFlCATES ADOPTED. At a meeting of the appropriate governing body of the Entity, duly called and held on , at
which a quorum was present and voting, or by other duly authorized action in lieu of a meeting, the resolutions set forth in this Certificate were
adopted.
OFFlCIAL. The following named person is an Official of EAGLE COUNTY TREASURER
NAMES TITLES AUTHORIZED CTUAL SI NATURE
MICHAEL L. GALLAGHER CHAIRMAN Y X
ACTIONS AUTHORIZED. The authorized person listed above may enter into any agreements of any nature w' h Le d those agreements
will bind the Entity. Specifically, but without limitation, the authorized person is authorized, empowered, an directed to do a following for
and on behalf of the Entity:
Borrow Money. To borrow, as a cosigner or otherwise, from time to time from Lender, on such terms as may be agreed upon between the
Entity and Lender, such sum or sums of money as in his or her judgment should be borrowed, without limitation.
Execute Notes. To execute and deliver to Lender the promissory note or notes, or other evidence of the Entity's credit accommodations, on
Lender's forms, at such rates of interest and on such terms as may be agreed upon, evidencing the sums of money so borrowed or any of
the Entity's indebtedness to Lender, and also to execute and deliver to Lender one or more renewals, extensions, modifications,
refinancings, consolidations, or substitutions for one or more of the notes, any portion of the notes, or any other evidence of credit
accommodations.
Grant Security. To mortgage, pledge, transfer, endorse, hypothecate, or otherwise encumber and deliver to Lender any property now or
hereafter belonging to the Entity or in which the Entity now or hereafter may have an interest, including without limitation all real property
and all personal property (tangible or intangible) of the Entity, as security for the payment of any loans or credit accommodations so
obtained, any promissory notes so executed (including any amendments to or modifications, renewals, and extensions of such promissory
notes), or any other or further indebtedness of the Entity to Lender at any time owing, however the same may be evidenced. Such property
may be mortgaged, pledged, transferred, endorsed, hypothecated or encumbered at the time such loans are obtained or such indebtedness
is incurred, or at any other time or times, and may be either in addition to or in lieu of any property theretofore mortgaged, pledged,
transferred, endorsed, hypothecated or encumbered.
Execute Security Documents. To execute and deliver to Lender the forms of mortgage, deed of trust, pledge agreement, hypothecation
agreement, and other security agreements and financing statements which Lender may require and which shall evidence the terms and
conditions under and pursuant to which such liens and encumbrances, or any of them, are given; and also to execute and deliver to Lender
any other written instruments, any chattel paper, or any other collateral, of any kind or nature, which Lender may deem necessary or proper
in connection with or pertaining to the giving of the liens and encumbrances.
Negotiate Items. To draw, endorse, and discount with Lender all drafts, trade acceptances, promissory notes, or other evidences of
indebtedness payable to or belonging to the' Entity or in which the Entity may have an interest, and either to receive cash for the same or to
cause such proceeds to be credited to the Entity's account with Lender, or to cause such other disposition of the proceeds derived
therefrom as he .or she may deem advisable.
Further Acts. In the case of lines of credit, to designate additional or alternate individuals as being authorized to request advances under
such lines, and in all cases, to do and perform such other acts and things, to pay any and all fees and costs, and to execute and deliver
such other documents and agreements as the Official may in his or her discretion deem reasonably necessary or proper in order to carry
into effect the provisions of this Certificate.
ASSUMED BUSINESS NAMES. The Entity has filed or recorded all documents or filings required by law relating to all assumed business names
used by the Entity. Excluding the name of the Entity, -the following is a complete list of all assumed business names under which the Entity does
business: None.
NOTICES TO LENDER. The Entity will promptly notify Lender in writing at Lender's address shown above (or such other addresses as Lender
may designate from time to time) prior to any IA) change in the Entity's name; IB) change in the Entity's assumed business namels); IC)
change in the structure of the Entity; ID- change in the authorized signerls); (E) change in the Entity's principal office address; IFl change in
the Entity's principal residence; or (G- change in any other aspect of the Entity that directly or indirectly relates to any agreements between the
Entity and Lender.
* •
00000000000000315
GOVERNMENTAL CERTIFICATE
Loan Nm: 2719660107 (Continued) page 2
FACSIMILE AND COUNTERPART. This document may be signed in any number of separate copies, each of which shall be effective as an
original, but all of which taken together shall constitute a single document. An electronic transmission or other facsimile of this document or
any related document shall be deemed an original and shall be admissible as evidence of the document and the signer's execution.
ARBITRATION AGREEMENT. Arbitration -Binding Arbitration. Lender and each party to this agreement hereby agree, upon demand by any
party, to submit any Dispute to binding arbitration in accordance with the terms of this Arbitration Program. A °Dispute" shall include any
dispute, claim or controversy of any kind, whether in contract or in tort, Legai or equitable, now existing or hereafter arising, relating in any way
to this Agreement or any related agreement incorporating this Arbitration Program (the "Documents"), or any past, present, or future loans,
transactions, contracts, agreements, relationships, incidents or injuries of any kind whatsoever relating to or involving Business Banking,
Regional Banking, or any successor group or department of Lender. DISPUTES SUBMITTED TO ARBITRATION ARE NOT RESOLVED IN COURT
BY A JUDGE OR JURY.
Governing Rules. Any arbitration proceeding will li) be governed by the Federal Arbitration Act (Title 9 of the United States Code),
notwithstanding any conflicting choice of law provision in any of the documents between the parties; and (ii) be conducted by the AAA
(American Arbitration Association), or such other administrator as the parties shall mutually agree upon, in accordance with the AAA's
commercial dispute resolution procedures, unless the claim or counterclaim is at least $1,000,000.00 exclusive of claimed interest, arbitration
fees and costs in which case the arbitration shall be conducted in accordance with the AAA's optional procedures for large, complex
commercial disputes (the commercial dispute resolution procedures or the optional procedures for large, complex commercial disputes to be
referred to, as applicable, as the °Rules"). If there is any inconsistency between the terms hereof and the Rules, the terms and procedures set
forth herein shall control. Arbitration proceedings hereunder shall be conducted at a location mutually agreeable to the parties, or if they cannot
agree, then at a location selected by the AAA in the state of the applicable substantive law primarily governing the Credit. Any party who fails
or refuses to submit to arbitration following a demand by any other party shall bear all costs and expenses incurred by such other party in
compelling arbitration of any Dispute. Arbitration may be demanded at any time, and may be compelled by summary proceedings in Court. The
institution and maintenance of an action for judicial relief or pursuit of a provisional or ancillary remedy shall not constitute a waiver of the right
of any party, including the plaintiff, to submit the controversy or claim to arbitration if any other party contests such action for judicial relief.
The arbitrator shall award all costs and expenses of the arbitration proceeding. Nothing contained herein shall be deemed to be a waiver by any
party that is a Bank of the protections afforded to it under 12 U.S.C. °91 or any similar applicable state law.
No Waiver of Provisional Remedies, Self-Help and Foreclosure. The arbitration requirement does not limit the right of any party to (i) foreclose
against real or personal property collateral; (ii) exercise self-help remedies relating to collateral or proceeds of collateral such as setoff or
repossession; or (iii) obtain provisional or ancillary remedies such as replevin, injunctive relief, attachment or the appointment of a receiver,
before during or after the pendency of any arbitration proceeding. This exclusion does not constitute a waiver of the right or obligation of any
party to submit any Dispute to arbitration or reference hereunder, including those arising from the exercise of the actions detailed in sections lil,
(ii) and (iii) of this paragraph.
Arbitrator O.ualtficatlons and Powers. Any arbitration proceeding in which the amount in controversy is $5,000,000.00 or less will be decided
by a single arbitrator selected according to the Rules, and who shall not render an award of greater than $5,000,000.00. Any Dispute in which
the amount in controversy exceeds $5,000,000.00 shall be decided by majority vote of a panel of three arbitrators; provided however, that all
three arbitrators must actively participate in all hearings and deliberations. Every arbitrator must be a practicing attorney or a retired member of
the state or federal judiciary, in either case with a minimum of ten years experience in the substantive law applicable to the subject matter of the
Dispute. The arbitrator will determine whether or not an issue is arbitratable and will give effect to the statutes of limitation in determining any
claim. In any arbitration proceeding the arbitrator will decide (by documents only or with a hearing at the arbftrator's discretion) any pre-hearing
motions which are similar to motions to dismiss for failure to state a claim or motions for summary adjudication. The arbitrator shall resolve ell
Disputes in accordance with the applicable substantive law and may grant any remedy or relief that a court of such state could order or grant
within the scope hereof and such ancillary relief as is necessary to make effective any award. The arbitrator shall also have the power to award
recovery of all costs and fees, to impose sanctions and to take such other action as the arbitrator deems necessary to the same extent a judge
could pursuant to the Federal Rules of Civil Procedure, the applicable State Rules of Civil Procedure, or other applicable law. Judgment upon the
award rendered by the arbitrator may be entered in any court having jurisdiction.
Discovery. In any arbitration proceeding discovery will be permitted in accordance with the Rules. All discovery shall be expressly limited to
matters directly relevant to the Dispute being arbitrated and must be completed no later than 20 days before the hearing date and within 180
days of the filing of the Dispute with the AAA. Any requests for an extension of the discovery periods, or any discovery disputes, will be
subject to final determination by the arbitrator upon a showing that the request for discovery is essential for the party's presentation and that no
alternative means for obtaining information is available.
Miscellaneous. To the maximum extent practicable, the AAA, the arbitrators and the parties shall take all action required to conclude any
arbitration proceeding within 180 days of the filing of the Dispute with the AAA. The resolution of any Dispute shall be determined by a
separate arbitration proceeding and such Dispute shall not be consolidated with other disputes or included in any class proceeding. No arbitrator
or other party to an arbitration proceeding may disclose the existence, content or results thereof, except for disclosures of information by a
party required in the ordinary course of its business or by applicable law or regulation. If more than one agreement for arbitration by or between
the parties potentially applies to a Dispute, the arbitration provision most directly related to the documents between the parties or the subject
matter of the Dispute shall control. This arbitration provision shall survive termination, amendment or expiration of any of the documents or any
relationship between the parties.
CERTIFICATION CONCERNING OFFICIALS AND CERTIFICATES. The Official named above is duly elected, appointed, or employed by or for the
Entity, as the case may be, and occupies the position set opposite his or her respective name. This Certificate now stands of record on the
books of the Entity, is in full force and effect, and has not been modified or revoked in any manner whatsoever.
CONTINUING VALIDITY. Any and all acts authorized pursuant to this Certificate and performed prior to the passage of this Certificate are
hereby ratified and approved. This Certificate shall be continuing, shall remain in full force and effect and Lender may rely on it until written
notice of its revocation shall have been delivered to and received by Lender at Lender's address shown above (or such addresses as Lender may
designate from time to time. Any such notice shall not affect any of the Entity's agreements or commitments in effect at the time notice is
given.
IN TESTIMONY WHEREOF, I have hereunto set my hand and attest that the signature set opposite the name listed above is his or her genuine
signature.
•I~~~~d~~~~~~~BB~~nm~+
GOVERNMENTAL CERTIFICATE
Loan No: 2719660107 (Continued) Page 3
I have read all the provisions of this Certificate, and I personally and on behalf of the Entity certffy that all statements and~resentatlons made
In th9s Certificate are true and correct. This Governmental Certificate is dated
CERTIFlED TO~AIIID ATTES1f1ED BY:
X
NOTE: If the Official signing this Certificate is designated by the foregoing document as one of the officials authorized to act on the Entity's behalf, h is advisable to have thia Certificate signed by
et least one non-authorized official of the Entity.
LA9811 PRO Lmdio& Vs. 8.21.80.002 Copy. Ne,imA PL,m~del Bolutlone, Ino. 1897. 20Ri. A9 Fiiphb Raomved. - CO N:\YANAOP981LPCRCPIILPLICffifC TR-17082 PR-242 '
