EXHIBIT 4A.
FIRST SECURITY BANK & TRUST Co. CONTINUING
809 CLARK GUARANTY
P.O. BOX 607 (LIMITED)
CHARLES CITY, IA 50616
LENDER
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GUARANTOR BORROWER
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WINNEBAGO INDUSTRIES, INC. FOREST CITY ECONOMIC DEVELOPMENT,
INC.
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ADDRESS ADDRESS
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P.O. BOX 152, FOREST CITY, IA 50436 P.O. BOX 347, FOREST CITY, IA 50436
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TELEPHONE NO. | IDENTIFICATION NO. TELEPHONE NO. | IDENTIFICATION NO.
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1. CONSIDERATION. This Guaranty is being executed to induce Lender
indicated above to enter into one or more loans or other financial
accommodations with or on behalf of Borrower.
2. GUARANTY. Guarantor hereby unconditionally guarantees the prompt and
full payment and performance of Borrower's present and future, joint and/or
several, direct or indirect, absolute and contingent, express and implied,
indebtedness, liabilities, obligations and covenants (cumulatively
"Indebtedness") to Lender when due (whether upon maturity or by demand,
acceleration or otherwise) as follows:
[X] LIMITED TO AN AMOUNT: Guarantor's liabilities and obligations under
this Guaranty ("Obligations") shall include al present and future
written agreements between Borrower and Lender (whether executed for
the same or different purposes), but shall be limited to the principal
amount of
BALANCE OVER TWO MILLION, FOUR HUNDRED TWENTY-FIVE THOUSAND AND NO/100
Dollars, together with all interest and all of Lender's expenses and
costs, incurred in connection with the indebtedness, including any
amendments, extensions, modifications, renewals, replacements or
substitutions thereto. The limitation on the liability of Guarantor
shall not apply to any costs incurred by Lender in connection with
paragraph 22 hereof.
[ ] LIMITED TO A PERCENTAGE: Guarantor's liabilities
and obligations under this Guaranty ("Obligations") shall include all
present and future written agreements between Borrower and Lender
(whether executed for the same or different purposes) evidencing the
indebtedness, but shall be limited to _________________% of the
indebtedness (as the same may change from time to time), together with
all interest thereon and all of Lender's expenses and costs incurred in
connection with the indebtedness. This limitation on the liability of
Guarantor shall not apply to any costs incurred by Lender pursuant to
paragraph 22 hereof.
[X] LIMITED TO THE FOLLOWING DESCRIBED NOTES/AGREEMENTS: Guarantor's
liabilities and obligations under this Guaranty ("Obligations") shall
be limited to the following described promissory notes and agreements
between Borrower and Lender, together with all interest and all of
Lender's expenses and costs, incurred in connection with the
indebtedness, including any amendments, extensions, modifications,
renewals, replacements or substitutions thereto:
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INTEREST PRINCIPAL AMOUNT/ FUNDING/ MATURITY CUSTOMER LOAN
RATE CREDIT LIMIT AGREEMENT DATE DATE NUMBER NUMBER
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VARIABLE $2,925,000.000 10/01/03 08/01/12 102271
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3. SECURITY INTEREST: [ ] If checked, the Obligations under this Guaranty
are secured by a lien on and/or security interest in the property described in
the documents executed in connection with this Guaranty as well as any other
property designated as security for this Guaranty now or in the future.
4. ABSOLUTE AND CONTINUING NATURE OF GUARANTY: Guarantor's Obligations are
absolute and continuing and shall not be affected or impaired if Lender amends,
renews, extends, compromises, exchanges, fails to exercise, impairs or releases
any of the indebtedness owed by any Borrower, Co-Guarantor or third party or any
of Lender's rights against Borrower, Co-Guarantor, third party, or collateral.
In addition, the Obligations shall not be affected or impaired by the death,
incompetency, termination, dissolution, insolvency, business cessation, or other
financial deterioration of any Borrower, Guarantor, or third party or by any of
the following: The invalidity, illegality or unenforceability if, or any defect
in, the promissory note or any agreement or any collateral security for the
Obligations; Any present or future law or order of any government or of any
agency thereof purporting to reduce, amend or otherwise affect the indebtedness
of the Borrower or any other obligor or any other terms of payment. The waiver,
compromise, settlement, release or termination of any or all of the Obligations,
covenants or agreements under or arising out of the promissory note or any
agreement or of any party named as Guarantor under this Guaranty; The failure to
give notice to the Guarantor of the occurrence of any event of default under the
promissory note or any other agreement; The loss, release, sale, exchange,
surrender or other change in any collateral; The extension of the time for
payment of any principal of or interest on the indebtedness or of the time for
performance of any obligations, covenants or agreements under or arising out of
the promissory note or any agreement set forth in the promissory note or any
agreement; The taking of , or the omission t take, any of the actions referred
to in the promissory note or any agreement; Any failure, omission or delay on
the part of the Lender to enforce, assert or exercise any right, power or remedy
conferred on the Lender in the promissory note or any agreement; The voluntary
or involuntary liquidation, dissolution, sale or other disposition of all or
substantially all the assets, marshalling of assets, receivership, insolvency,
bankruptcy, assignment for the benefit of creditors, reorganization, or other
similar proceedings affecting the Guarantor or the Borrower or any of their
assets, or any allegation or contest of the validity of the promissory note or
any agreement; The default or failure of the Guarantor to fully perform any
Obligations set forth in this Guaranty; Any event or action that would, in the
absence of this paragraph, result in the release of discharge of the Guarantor
from the performance or observance of any Obligation, covenant or agreement
contained in this Guaranty; And any other circumstanced which might otherwise
constitute a legal or equitable discharge or defense of a surety or a guarantor.
5. DIRECT AND UNCONDITINAL NATURE OF GUARANTY. Guarantor's Obligations are
direct and unconditional and may be enforced without requiring Lender to
exercise, enforce, or exhaust any right or remedy against any Borrower,
Co-guarantor, third party, or any security or collateral.
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IMPORTANT: READ BEFORE SIGNING. THE TERMS OF THIS AGREEMENT SHOULD BE READ
CAREGULLY BECAUISE ONLY THOSE THERMS IN WRITING ARE ENFORCEABLE. NO OTHER TERMS
OR ORAL PROMISES NOT CONTAINED IN THIS WRITTEN CONTRACT MAY BE LEGALYY ENFORCED.
YOU MAY CHANGE THE TERMS OF THIS AGREEMETN ONLY BY ANOTHER WRITTEN AGREEMENT.
THIS NOTICE ALSO APPLIES TO ANY OTHER CREDIT AGREEMENTS (EXCEPT EXEMPT
TRANSACTIONS) NOW IN EFFECT BETWEEN YOU AND THIS LENDER.
GUARANTOR ACKNOWLEDGES GUARANTOR HAS READ, UNDERSTANDS, AND AGREES TO THE TERMS
AND CONDITIONS OF THIS AGFREEMETN INCLUDING THE TERMS AND CONDITIONS ON THE
REVERSE SIDE. GUARANTOR HAS EXECUTED THIS AGREEMENT WITH THE INTENT TO BE
LEGALLY BOUND. GUARANTOR ACKNOWLEDGES RECEIPT OF AN EXACT COPY OF THIS
AGREEMENT.
DATED: 10/01/2003
GUARANTOR: WINNEBAGO INDUSTRIES, INC. GUARANTOR: WINNEBAGO INDUSTRIES, INC.
/s/ Edwin F. Barker /s/ Joseph L. Soczek, Jr.
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EDWIN F. BARKER, VICE PRESIDENT & CFO JOSEPH L. SOCZEK, JR., TREASURER
GUARANTOR: GUARANTOR:
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6. WAIVER. Guarantor hereby waives notice of the acceptance of this
Guaranty; notice of present and future extensions of credit and other financial
accommodations by Lender to any Borrower; notice of the obtaining or release of
any guaranty, assignment, or other security for any of the indebtedness; notice
of presentment for payment, demand, protest, dishonor, default, and nonpayment
pertaining to the indebtedness and this Guaranty and all other notices and
demands pertaining to the indebtedness and this Guaranty; any and all defenses
to payment as permitted by law. The Guarantor hereby waives the right to require
that any action be brought first against the Borrower or any other Guarantor, or
any security, or to require that resort be made to any security or to any
balance of any deposit account on credit on the books of the Lender in favor of
the Borrower or of any Guarantor. The Guarantor will not assert against the
Lender any defense of waiver, release, discharge in bankruptcy, statute of
limitations, res judicata, statue of frauds, anti-deficiency statute, fraud,
incapacity, illegality or unenforceability which may be available to Borrower or
any third party, whether or not on account of a related transaction. The
Guarantor agrees that the Guarantor shall be liable for any deficiency remaining
after foreclosure of any mortgage or security interest securing the Obligations,
whether or not the liability of Borrower or any other third party for the
deficiency is discharged by statute or judicial decision.
7. DEFAULT. Guarantor shall be in default under this Guaranty in the event
that any Borrower or Guarantor;
(a) fails to pay any amount under this Guaranty or any indebtedness to
Lender when due (whether such amount is due at maturity by
acceleration or otherwise);
(b) fails to perform any obligation or breaches any warranty or covenant
to Lender contained in any loan document or this Guaranty or any other
present or future promissory note or written agreement;
(c) provides or causes any false or misleading signature or representation
to be provided to Lender;
(d) allows any collateral for the indebtedness or this Guaranty to be
destroyed, lost or stolen, or damaged in any material respect;
(e) permits the entry or service of any garnishment, judgment, tax levy,
attachment or lien against Borrower, Guarantor, or ay of their
property;
(f) dies, becomes legally incompetent, is dissolved or terminated, ceases
to operate its business, becomes insolvent, makes an assignment for
the benefit of creditors, has an adverse material change in its
financial condition, or becomes the subject of any bankruptcy,
insolvency or debtor rehabilitation proceeding; or
(g) causes Lender, in good faith, to believe the prospect of payment of
performance is impaired.
8. RIGHTS OF LENDER ON DEFAULT. If there is a default under this Guaranty,
Lender shall be entitled to exercise one or more of the following remedies
without notice or demand (except as required by law);
(a) to declare Guarantor's Obligations under this Guaranty immediately due
and payable in full;
(b) to collect the outstanding Obligations under this Guaranty with or
without resorting to judicial process;
(c) to take possession of any collateral in any manner permitted by law;
(d) to require Guarantor to deliver and make available to Lender any
Collateral at a place reasonably convenient to Guarantor and Lender;
(e) to sell, lease or otherwise dispose of any collateral and collect any
deficiency balance with or without resorting to judicial process;
(f) to set-off Guarantor's Obligations under this Guaranty against any
amounts due to Guarantor including, but not limited to, monies,
instruments, and deposit accounts maintained with Lender; and
(g) to exercise all other rights available to Lender under any other
written agreement or applicable law.
Lender's rights are cumulative and may be exercised together, separately, and in
any order. Lender's remedies under this paragraph are in addition to those
available at common law, including, but not limited to, the right of set-off.
9. SUBORDINATION. The payment of any present or future indebtedness of
Borrower to Guarantor will be postponed and subordinated to the payment in full
of any present or future indebtedness of Borrower to Lender during the term of
this Agreement. In the event that Guarantor receives any monies, instruments, or
other remittances to be applied against Borrower's obligations to Guarantor,
Guarantor will hold these funds in trust for Lender and immediately endorse or
assign (if necessary) and deliver these monies, instruments and other
remittances to Lender. Guarantor agrees that Lender shall be preferred to
Guarantor in any assignment for the benefit of Borrower's creditors in any
bankruptcy, insolvency, liquidation, or reorganization proceeding commenced by
or against Borrower in any federal or state court.
10. INDEPENDENT INVESTIGATION. Guarantor's execution and delivery to Lender
of this Guaranty is based solely upon Guarantor's Independent investigation of
Borrower's financial condition and not upon any written or oral representation
of Lender in any manner. Guarantor assumes full responsibility for obtaining any
additional information regarding Borrower's financial condition and Lender shall
not be required to furnish Guarantor with any information of any kind regarding
Borrower's financial condition.
11. ACCEPTANCE OF RISKS. Guarantor acknowledges the absolute and continuing
nature of this Guaranty and voluntarily accepts the full range of risks
associated herewith including, but not limited to, the risk that Borrower's
financial condition shall deteriorate or, if this Guaranty is unlimited, the
risk that Borrower shall incur additional indebtedness to Lender in the future.
12. SUBROGATION. The Guarantor hereby irrevocably waives and releases the
Borrower from all "claims" (as defined in Section 101(5) of the Bankruptcy Code)
to which the Guarantor is or would, at any time, be entitled by virtue of its
obligations under this Guaranty, including, without limitation, any right of
subrogation (whether contractual, under Section 509 of the Bankruptcy Code or
otherwise), reimbursement, contribution, exoneration or similar right against
the Borrower.
13. APPLICATION OF PAYMENTS. Lender will be entitled to apply any payments
or other monies received from Borrower, any third party, or any collateral
against Borrower's present and future indebtedness to Lender in any order.
14. ESSENCE OF TIME. Guarantor and Lender agree that time is of the
essence.
15. TERMINATION. This Guaranty shall remain in full force and effect until
Lender executes and delivers to Guarantor a written release thereof.
16. ASSIGNMENT. Guarantor shall not be entitled to assign any of its rights
or Obligations described in this Guaranty without Lender's prior written consent
which may be withheld by Lender in its sole discretion. Lender shall be entitled
to assign some or all of its rights and remedies described in this Guaranty
without notice to or the prior consent of Guarantor in any manner. Unless the
Lender shall otherwise consent in writing, the Lender shall have an unimpaired
right prior and superior to that any assignee, to enforce this Guaranty for the
benefit of the Lender, as to those Obligations that the Lender has not assigned.
17. MODIFICATION AND WAIVER. The modification or waiver of any of
Guarantor's Obligations or Lender's rights under this Guaranty must be contained
in a writing signed by Lender. Lender may delay in exercising or fail to
exercise any of its rights without causing a waiver of those rights. A waiver on
one occasion shall not constitute a waiver on any other occasion.
18. SUCCESSORS AND ASSIGNS. This Guaranty shall be binding upon and inure
to the benefit of Guarantor and Lender and their respective successors, assigns,
trustees, receivers, administrators, personal representatives, legatees, and
devisees.
19. NOTICE. Any notice or other communication to be provided under this
Guaranty shall be in writing and sent to the parties at the addresses described
in this Guaranty or such other addresses as the parties may designate in writing
from time to time.
20. SEVERABILITY. If any provision of this Guaranty violates the law or is
unenforceable, the rest of the Guaranty shall remain valid.
21. APPLICABLE LAW. This Guaranty shall be governed by the laws of the
state indicated in Lender's address. Guarantor consents to the jurisdiction and
venue of any court located in such state in the event of any legal proceeding
under this Guaranty.
22. COLLECTION COSTS. If Lender hires an attorney to assist in collecting
any amount due or enforcing any right or remedy under this Guaranty, Guarantor
agrees to pay Lender's reasonable attorneys' fees, legal expenses and other
costs as permitted by law.
23. REPRESENTATIONS OF GUARANTOR. Guarantor acknowledges receipt of
reasonably equivalent value in consideration for the execution of this Guaranty
and represents that, after giving effect to this Guaranty, the fair market value
of Guarantor's assets exceeds Guarantor's total liabilities, including
contingent, subordinate and unliquidated liabilities, that Guarantor has
sufficient cash flow to meet debts as they mature, and that Guarantor does not
have unreasonably small capital. Guarantor represents that all required director
and shareholder consents to enter into this Guaranty have been obtained.
24. MISCELLANEOUS. Guarantor will provide Lender with a current financial
statement and other financial information upon request. All references to
Guarantor in this Guaranty shall include all entities or persons signing this
Guaranty. If there is more than one Guarantor, their obligation shall be joint
and several. Nothing in this Guaranty is intended to require, nor should it be
construed to require, the signature of Borrower's spouse in violation of
Regulation B (12 C.F.R. Part 202.7) in connection with this or any other
indebtedness of Borrower to Lender. This Guaranty and any related documents
represent the complete and integrated understanding between Guarantor and Lender
pertaining to the terms and conditions of those documents.
25. WAIVER OF JURY TRIAL. LENDER AND GUARANTOR KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE THE RIGHT EITHER MAY HAVE TO A TRIAL BY JURY IN RESPECT TO
ANY LITIGATION BASED ON, OR ARISING OUT OR, UNDER OR IN CONJUCTION WITH THE
INDEBTEDNESS GUARANTEED HEREBY, THIS GUARANTY AND ANY OTHER AGREEMENT
CONTEMPLATED TO BE EXECUTED IN CONJUCTION HEREWITH, OR ANY COURSE OF CONDUCT,
COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OR EITHER
PARTY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR LENDER MAKING THE LOAN OR
LOANS GUARANTEED HEREBY.
26. ADDITIONAL TERMS.
FIRST SECURITY BANK & TRUST CO. COMMERCIAL
809 CLARK, P.O. BOX 607 SECURITY
CHARLES CITY, IA 50616 AGREEMENT
"LENDER"
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BORROWER OWNER OF COLLATERAL
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FOREST CITY ECONOMIC DEVELOPMENT, INC. WINNEBAGO INDUSTRIES, INC.
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ADDRESS ADDRESS
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P.O. Box 347 P.O. Box 474
Forest City, IA 50436 Forest City, IA 50436
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TELEPHONE NO. IDENTIFICATION NO. TELEPHONE NO. IDENTIFICATION NO.
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1. SECURITY INTEREST. For good and valuable consideration, Owner of
Collateral ("Owner") grants to Lender identified above a continuing security
interest in the Collateral described below to secure the obligations described
in this Agreement.
2. OBLIGATIONS. The Collateral shall secure the payment and performance of
all of Borrower's and Owner's present and future, joint and/or several, direct
and indirect, absolute and contingent, express and implied, indebtedness,
(including costs of collection, legal expenses, and reasonable attorney's fees,
incurred by Lender upon the occurrence of a default under this Agreement, in
collecting or enforcing payment of such indebtedness or preserving, protecting,
or realizing on the Collateral herein), liabilities, obligations, and covenants
(cumulatively "Obligations") to Lender including, without limitation, (except
obligations requiring a notice of the right of rescission required by law,
unless such notice is given), those arising under or pursuant to:
a. this Agreement and the following promissory notes and agreements:
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INTEREST PRINCIPAL AMOUNT/ FUNDING/ MATURITY CUSTOMER LOAN
RATE CREDIT LIMIT AGREEMENT DATE DATE NUMBER NUMBER
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5.75% $2,925,000.00 10/01/03 08/01/12 102271
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b [X]if checked, all other present or future, evidences of
indebtedness, agreements, instruments, guaranties, or otherwise of
Borrower of Owner to Lender (WHETHER INCURRED FOR THE SAME OF
DIFFERENT PURPOSES THAN THE FOREGOING);
c. all renewals, extensions, amendments, modifications, replacements, or
substitutions to any of the foregoing; and
d. applicable law.
3. COLLATERAL. The Collateral shall consist of all of the
following-described property, as defined by the Uniform Commercial Code
presently or as hereafter amended or replaced, and Owner's rights, title, and
interest in such property whether now or hereafter existing or now owned or
hereafter acquired by Owner and wherever located (collectively the
"Collateral"):
[ ] All accounts including, but not limited to, the accounts described on
Schedule A attached hereto and incorporated herein by this reference;
[ ] All chattel paper including, but not limited to, the chattel paper
described on Schedule A attached here to and incorporated here in by this
reference;
[X] All deposit accounts including, but not limited to, the deposit accounts
described on Schedule A attached hereto and incorporated herein by this
reference;
[ ] All documents including, but not limited to, the documents described on
Schedule A attached hereto and incorporated herein by this reference;
[ ] All equipment, including, but not limited to, the equipment described on
Schedule A attached hereto and incorporated herein by this reference;
[ ] All fixtures, including, but not limited to, the fixtures located or to
be located on the real property described on Schedule B attached hereto
and incorporated herein by this reference;
[ ] All general intangibles including, but not limited to, the general
intangibles described on Schedule A attached hereto and incorporated
herein by this reference;
[X] All instruments including, but not limited to, the instruments described
on Schedule A attached hereto and incorporated herein by this reference;
[ ] All inventory including, but not limited to, the inventory described on
Schedule A attached hereto and incorporated herein by this reference;
[ ] All investment property including, but not limited to, the investment
described on Schedule A attached hereto and incorporated herein by this
reference;
[ ] All letter-of-credit rights including, but not limited to, the
letter-of-credits described on Schedule A attached hereto and
incorporated herein by this reference;
[ ] All as-extracted collateral including, but not limited to, all minerals
of the like located on or related to the real property described on
Schedule B attached hereto and incorporated herein by this reference;
[ ] All standing timber located on the real property described on Schedule B
attached hereto and incorporated herein by this reference;
[ ] Other;
All monies, instruments, and savings, checking, or other deposit accounts that
are now or in the future in Lender's custody or control (excluding IRA, Keogh,
trust accounts, and deposits subject to tax penalties if so assigned);
All monies or instruments pertaining to the Collateral described above;
All accessions, accessories, additions, amendments, attachments, modifications,
replacements, and substitutions to any of the above;
All proceeds and products of any of the above; and
All supporting obligations of any of the above.
4. OWNER'S TAXPAYER IDENTIFICATION. Owner's social security number or
federal taxpayer identification number is: 42-0802678.
5. OWNER'S LOCATION. [ ] Owner is an individual and maintains his or her
principal residence in the state of: ______________. [X] Owner is a: CORPORATION
duly incorporated, registered, formed or organized, validly existing and in good
standing under the laws of the state of: IOWA. [ ] Owner is a: _________________
and maintains its principal place of business or, if it has more than one place
of business, its chief executive office in the state of: ________.
6. REPRESENTATIONS, WARRANTIES, AND COVENANTS. Owner represents, warrants
and covenants to Lender that:
(a) Owner is and shall remain the sole owner of the Collateral:
(b) Neither Owner nor, to the best of Owner's knowledge, any other party
has used, generated, released, discharged, stored, or disposed of any
hazardous waste, toxic substance, or related material (cumulatively
"Hazardous Materials") or transported any Hazardous Materials across
the property. Owner shall not commit or permit such actions to be
taken in the future. The term "Hazardous Materials" shall mean any
substance, material, or waste which is or becomes regulated by any
governmental authority including, but not limited to, (i) petroleum;
(ii) asbestos; (iii) polychlorinated biphenyls; (iv) those substances,
materials or wastes designated as a "hazardous substance" pursuant to
Section 311 of the Clean Water Act or listed pursuant to Section 307
of the Clean Water Act or any amendments or replacements to these
statutes; (v) those substances, materials or wastes defined as a
"hazardous waste" pursuant to Section 1004 of the Resource
Conservation and Recover Act or any amendments or replacements to that
statue/ or (vi) those substances, materials or wastes defined as a
"hazardous substance" pursuant to Section 101 of the Comprehensive
Environmental Response, Compensation and Liability Act, or any
amendments or replacements to the statue;
(c) Owners' location (Owner's place of organization, principal place of
business or, if more than one place of business, chief executive
office or principal residence) is the state indicated in paragraph 5.
Owner shall not change its state of location without first notifying
Lender of writing.
(d) The Collateral is located and has been located during the four (4)
month period prior to the date here of at Owner's address described
above or any address described on Schedule C attached hereto and
incorporated herein by this reference. Owner shall immediately advise
Lender in writing of any change in or addition to the foregoing
addresses;
(e) Owner hall not become a party to any restructuring of its form of
business or participate in any consolidation, merger, liquidation or
dissolution without Lender's prior written consent'
(f) Owner's exact legal name is as set forth on the first page of this
Agreement. Owner shall not change such name or sue any trade name
without Lender's prior written consent, and shall notify Lender of the
nature of any intended change of Owner's name, or the use of any trade
name, and the proposed effective date of such change.
(g) The Collateral is and shall at all times remain free of all tax an
other liens, security interests, encumbrances and claims of any kind
except for those belonging to Lender and those described on Schedule D
attached hereto and incorporated herein by this reference. Without
waiving the event of default as a result thereof, Owner shall take any
action and execute any document needed to discharge the foregoing
liens, security interests, encumbrances and claims;
(h) Owner shall defend the Collateral against all claims and demands of
all persons at any time claiming any interest therein;
(i) Owner will cooperate with Lender in obtaining and maintaining control
with respect to all deposit accounts, investment property,
letter-of-credit rights and electronic chattel paper constituting the
Collateral;
(j) Owner shall provide Lender with possession as appropriate, of all
chattel paper, documents, instruments and investment property,
constituting the Collateral, and Owner shall promptly mark all chattel
paper, instruments, documents and investment property constituting the
Collateral to show that the same are subject to Lender's security
interest;
(k) All of Owner's accounts; chattel paper; deposit accounts; documents;
general intangibles' instruments; investment property;
letter-of-credit rights; and federal, state; county; and municipal
government and other permits and licenses; trusts, liens, contracts,
leases, and agreements, constituting the Collateral are and shall be
valid, genuine and legally enforceable obligations and rights
belonging to Owner against one or more third parties and not subject
to any claim, defense, set-off or counterclaim of any kind;
(l) Owner shall not amend, modify, replace, or substitute any account;
chattel paper; deposit account; document; general intangible;
instrument; investment property; or letter-of-credit right
constituting the Collateral without the prior consent of Lender. Owner
shall not create any chattel paper constituting the Collateral without
placing a legend on the chattel paper acceptable to Lender indicating
that Lender has a security interest in the chattel paper;
(m) No person shall file an amendment that is a termination statement for
a financing statement concerning any of the Collateral without the
prior written consent of Lender, except to the extent permitted by the
Uniform Commercial Code presently or as hereafter amended or replaced;
(n) Owner has the right and is duly authorized to enter into and perform
its obligations under this Agreement. Owner's execution and
performance of these obligations do not and shall not conflict with
the provisions of any statue, regulation, ordinance, rule of law,
contract or other agreement which may or hereafter be binding on
Owner;
(o) No action or proceeding is pending against Owner which may result in
any material or adverse change in its business operations or financial
condition or materially affect the Collateral:
(p) Owner has not violated and shall not violate any applicable federal,
state, county or municipal statue, regulation or ordinance (including
but not limited to those governing Hazardous Materials) which may
materially and adversely affect its business operations or financial
condition or the Collateral;
(q) Owner shall, upon Lender's request, deposit all proceeds of the
Collateral into an account or accounts maintained by Owner or Lender
at Lender's institution;
(r) Owner will, upon receipt, deliver to Lender as additional Collateral
all securities distributed on account of the Collateral such as stock
dividends and securities resulting from stock splits, reorganizations
and recapitalizations; and
(s) Owner agrees to the terms of the Obligations and to the terms of any
renewals, extensions, amendments, modifications, replacements or
substitutions of the Obligations; Lender may enter into agreements in
the future with Borrower, which, if this Agreement so provides, will
become Obligations secured by the Collateral described in this
Agreement; property other than the Collateral may also secure the
Obligations, that Lender shall have no obligation to exercise its
rights against such property prior to exercising its rights against
the Collateral, that Lender may accept substitutions or exchanges for
any such property; and that Lender may release its security interest
in such property at any time; parties other than Borrower may be or
may become obligated under the Obligations; and
(t) This Agreement and the obligations described in this Agreement are
executed and incurred for business and not consumer purposes.
7. SALE OF COLLATERAL. Owner shall not assign, convey, lease, sell,
license, exchange or transfer any of the Collateral to any third party without
the prior written consent of Lender except for sales of inventory to buyers in
the ordinary course of business.
8. FINANCING STATEMENTS AND OTHER DOCUMENTS. Owner shall at any time and
from time to time take all actions and execute all documents required by Lender
to attach, perfect and maintain Lender's security interest in the Collateral and
establish and maintain Lender's right to receive the payment of the proceeds of
the Collateral including, but not limited to, executing any financing
statements, fixture filings, continuation statements, notices of security
interest and other documents required by the Uniform Commercial Code, presently
or as hereafter amended or replaced, and other applicable law. Owner shall pay
the costs of filing such documents in all offices wherever filing or recording
is deemed by Lender to be necessary or desirable. Lender shall be entitled to
perfect its security interest in the Collateral by filing carbon, photographic
or other reproductions of the aforementioned documents with any authority
required by the Uniform Commercial Code presently or as hereafter amended or
replaced, or other applicable law. Owner authorizes Lender to execute and file
any financing statements, as well as extensions, renewals and amendments of
financing statements in such form as Lender may require to perfect and maintain
perfection of any security interest granted in this Agreement.
9. INQUIRIES AND NOTIFICATION TO THIRD PARTIES. Owner hereby authorizes
Lender to contact any third party and make any inquiry pertaining to Owner's
financial condition or the Collateral. In addition, Lender is authorized to
provide oral or written notice of its security interest in the Collateral to any
third party and, following a default hereunder, to make payment to Lender.
10. LOCK BOX, COLLATERAL ACCOUNT. If Lender so requests at any time
(whether or not Owner is in default of this Agreement), Owner will direct each
of its account debtors to make payments due under the relevant account or
chattel paper directly to a special lock box to be under the control of Lender.
Owner hereby authorizes and directs Lender to deposit into a special collateral
account to be established and maintained with Lender all checks, drafts and cash
payments received in said lock box. All deposits in said collateral account
shall constitute proceeds of Collateral and shall not constitute payment of any
obligation. At its option, Lender may, at any time, apply finally collected
funds on deposit in said collateral account to the payment of the Obligations in
such order of application as Lender may determine, or permit Owner to withdraw
all or any part of the balance on deposit in said collateral account. If a
collateral account is so established, Owner agrees that Owner will promptly
deliver to Lender in the form received (except for Owner's endorsement if
necessary). Until so deposited, all payments on accounts and chattel paper
received by Owner shall be held in trust by Owner for and as the property of
Lender and shall not be commingled with any funds or property of Owner.
11. COLLECTION OF INDEBTEDNESS FROM THIRD PARTIES. Lender shall be entitled
to notify, and upon the request of Lender, Owner shall notify any account debtor
or other third party (including, but not limited to, insurance companies) to pay
any indebtedness or obligation owing to Owner and constituting the Collateral
(cumulatively "Indebtedness") to Lender whether or not a default exists under
this Agreement. Owner shall diligently collect the Indebtedness owing to Owner
from its account debtors and other third parties until the giving of such
notification. In the event that Owner possesses or receives possession of any
instruments or other remittances with respect to the Indebtedness following the
giving such notification or if the instruments or other remittances constitute
the prepayment of any Indebtedness or the payment of any insurance proceeds,
Owner shall hold such instruments and other remittances in trust for Lender
apart from its other property, endorse the instruments and other remittances to
Lender, and immediately provide Lender with possession of the instruments and
other remittances. Lender shall be entitled, but not required, to collect (by
legal proceedings or otherwise), extend the time for payment, compromise,
exchange or release any obligor or collateral upon, or otherwise settle any of
the Indebtedness whether or not an event of default exists under this Agreement.
Lender shall not be liable to Owner for any action, error, mistake, omission or
delay pertaining to the actions described in this paragraph or any damages
resulting therefrom.
12. POWER OF ATTORNEY. Owner hereby appoints Lender as its attorney-in-fact
and agent to endorse Owner's name on all instruments and other remittances
payable to owner with respect to the indebtedness, including any items received
by Lender in any lockbox account, or other documents pertaining to Lender's
actions in connection with the Indebtedness. In addition, Lender shall be
entitled, but not required, to perform any action or execute any document
required to be taken or executed by Owner under this Agreement. Lender's
performance of such action or execution of such documents shall not relieve
Owner from any obligation or cure any default under this Agreement. The powers
of attorney described in this paragraph are coupled with an interest and are
irrevocable.
13. USE AND MAINTENANCE OF COLLATERAL. Owner shall use the Collateral
solely in the ordinary course of its business, for the usual purposes intended
by the manufacturer (if applicable), with due care, and in compliance with the
laws, ordinances, regulations, requirements and rules of all federal, state,
county and municipal authorities including environmental laws and regulations
and insurance policies. Owner shall not make any alterations, additions or
improvements to the Collateral without the prior written consent of Lender.
Owner shall ensure that Collateral which is not now a fixture does not become a
fixture. Without limiting the foregoing, all alterations, additions and
improvements made to the Collateral shall be subject to the security interest
belonging to the Lender, shall not be removed without the prior written consent
of Lender, and shall be made at Owner's sole expense. Owner shall take all
actions and make any repairs or replacements needed to maintain the Collateral
in good condition and working order.
14. LOSS OR DAMAGE. Owner shall bear the entire risk of any loss, theft,
destruction or damage (cumulatively "Loss or Damage") to all or any part of the
Collateral. In the event of any Loss or Damage, Owner will either restore the
Collateral to its previous condition, replace the Collateral with similar
property acceptable to Lender in its sole discretion, or pay or cause to be paid
to Lender the decrease in the fair market value of the affected Collateral.
Lender has no duty to collect any income accruing on the Collateral or to
preserve any rights relating to the Collateral.
15. INSURANCE. The collateral will be kept insured for its full value
against all hazards including loss or damage caused by fire, collision, theft,
hail or other casualty. If the Collateral consists of a motor vehicle, Owner
will obtain comprehensive and collision coverage in amounts at least equal to
the actual cash value of the vehicle with deductible not to exceed $___________.
Insurance coverage obtained by Owner shall be from a licensed insurer subject to
Lender's approval. Owner shall assign to Lender all rights to receive proceeds
of insurance not exceeding the amount owed under the obligations described
above, and direct the insurer to pay all proceeds directly to Lender. The
insurance policies shall require the insurance company to provide Lender with at
least _______________ days' written notice before such policies are altered or
cancelled in any manner. The insurance policies shall name Lender as a loss
payee and provide that no act or omission of Owner or any other person shall
affect the right of Lender to be paid the insurance proceeds pertaining to the
loss or damage of the Collateral. In the event Owner fails to acquire or
maintain insurance, Lender (after providing notice as may be required by law)
may in its discretion procure appropriate insurance coverage upon the Collateral
and change the insurance cost as an advance of principal under the promissory
note. Owner shall furnish Lender with evidence of insurance indicating the
required coverage. Lender may act as attorney-in-fact and agent for Owner in
making and settling claims under insurance policies, canceling any policy or
endorsing Owner's name on any draft or negotiable instrument drawn by any
insurer.
16. INDEMNIFICATION. Lender shall not assume or be responsible for the
performance of any of Owner's obligations with respect to the Collateral under
any circumstances. Owner shall immediately provide Lender with written notice of
and indemnify and hold Lender and its shareholders, directors, officers,
employees and agents harmless from all claims, damages, liabilities (including
attorneys' fees and legal expenses), causes of action, actions, suits and other
legal proceedings (cumulatively "Claims") pertaining to its business operations
or the Collateral including, but not limited to, those arising from Lender's
performance of Owner's obligations with respect to the Collateral. Owner, upon
the request of Lender, shall hire legal counsel to defect Lender from such
Claims, and pay the attorney's fees, legal expenses and other costs to the
extent permitted by applicable law, incurred in connection therewith. In the
alternative, Lender shall be entitled to employ its own legal counsel to defect
such Claims at Owner's cost.
17. TAXES AND ASSESSMENTS. Owner shall execute and file all tax returns by
pay all taxes, licenses, fees and assessments relating to its business
operations and the Collateral (including, but not limited to, income taxes,
personal property taxes, withholding taxes, sales taxes, use taxes, excise taxes
and workers' compensation premiums) in a timely manner.
18. INSPECTION OF COLLATERAL AND BOOKS AND RECORDS. Owner shall allow
Lender or its agents to examine, inspection and make abstracts and copies of the
Collateral and Owner's books and records pertaining to Owner's business
operations and financial condition or the Collateral during normal business
hours. Owner shall provide any assistance required by Lender for these purposes.
All of the signatures and information pertaining to the Collateral or contained
in the books and records shall be genuine, true, accurate and complete in all
respects. Owner shall note the existence of Lender's security interest in its
books and records pertaining to the Collateral.
19. DEFAULT. Owner shall be in default under this Agreement in the event
that Owner, Borrower or any guarantor:
(a) fails to make any payment under this Agreement or any other
indebtedness to Lender when due;
(b) fails to perform any obligation or breaches any warranty or covenant
to Lender contained in this Agreement or any other present or future
written agreement regarding this or any other indebtedness to Lender;
(c) provides or causes any false or misleading signature or representation
to be provided to Lender;
(d) allows the Collateral to be destroyed, lost or stolen, damaged in any
material respect, or subjected to seizure or confiscation;
(e) seeks to revoke, terminate or otherwise limit its liability under any
continuing guaranty;
(f) permits the entry or service of any garnishment, judgment, tax levy,
attachment or lien against Owner, any guarantor, or any of their
property;
(g) dies, becomes legally incompetent, its dissolved or terminated, ceases
to operate its business, becomes insolvent, makes an assignment for
the benefit of creditors, has a material change in its financial
condition, fails to pay any debts as they become due, or becomes the
subject of any bankruptcy, insolvency or debtor rehabilitation
proceeding.
(h) allows the Collateral to be used by anyone to transport or store
goods, the possession, transportation, or use of which, is illegal; or
(i) causes Lender, in good faith, to believe the prospect of payment
or performance is impaired.
20. RIGHTS OF LENDER ON DEFAULT. If there is a default under this
Agreement, Lender shall be entitled to exercise one or more of the following
remedies without notice or demand (except as required by law):
(a) to declare the Obligations immediately due and payable in full;
(b) to collect the outstanding Obligations with or without resorting to
judicial process;
(c) to change Owner's mailing address, open Owner's mail, and retain any
instruments or other remittances constituting the Collateral contained
therein;
(d) to take possession of any Collateral in any manner permitted by law;
(e) to apply for an obtain, without notice and upon ex parte application,
the appointment of a receiver for the Collateral without regard to
Owner's financial condition or solvency, the adequacy of the
Collateral to secure the payment or performance of the obligations, or
the existence of any waste to the Collateral;
(f) to require Owner to deliver and make available to Lender any
Collateral at a place reasonably convenient to Owner and Lender;
(g) to sell, lease or otherwise dispose of any Collateral and collect any
deficiency balance with or without resorting to legal process;
(h) to set-off Owner's obligations against any amounts due to Owner
including, but not limited to, monies, instruments, and deposit
accounts maintained with Lender; and
(i) to exercise all other rights available to Lender under any other
written agreement or applicable law.
Lender's rights are cumulative and may be exercised tighter, separately, and in
any order. Unless the Collateral is perishable, threatens to decline speedily in
value or is of a type customarily sold on a recognized market, Lender will
provide reasonable notification of the time and place of any sale or intended
disposition as required under the Uniform Commercial Code, presently or as
hereafter amended or replaced. Lender has no obligation to clean up or otherwise
prepare the Collateral for sale. Lender may comply with any applicable state or
federal law requirements in connection with a disposition of the Collateral and
compliance will not be considered adversely to affect the commercial
reasonableness of any sale of the Collateral. If the Collateral consists of
securities, Lender shall be entitled to transfer the securities into the name of
Lender or its designee and to vote the securities. Lender shall be authorized to
notify the issue of the securities to remit any related dividends, interest and
securities resulting from stock splits, reorganizations and capitalizations
directly to Lender or its designee. In the event that Lender institutes an
action to recover any Collateral or seeks recovery of any Collateral by way of a
prejudgment remedy in an action against Owner, Owner waives the posting of any
bond which might otherwise be required. Upon any default, Owner shall segregate
all proceeds of Collateral and hold such proceeds in trust for Lender. Lender's
remedies under this paragraph are in addition to those available at common law,
such as setoff.
21. APPLICATION OF PAYMENTS. Whether or not a default has occurred under
this Agreement, all payments made by or on behalf of Owner and all credits due
to Owner from the disposition of the Collateral or otherwise may be applied
against the amounts paid by Lender (including attorney's fees and legal
expenses) in connection with the exercise of its rights or remedies described in
this Agreement any interest theron and then to the payment of the remaining
Obligations in whatever order Lender chooses.
22. REIMBURSEMENT OF AMOUNTS EXPENDED BY LENDER. Owner shall reimburse
Lender for all amounts (including attorneys' fees and legal expenses) expended
by Lender in the performance of an action required to be taken by Owner or the
exercise of any right or remedy belonging to Lender under this Agreement,
together with interest thereon at the lower of the highest rate described in any
promissory note or credit agreement executed by Borrower or Owner or the highest
rate allowed by law from the date of payment until the date of reimbursement.
These sums shall be included in the definition of Obligations, shall be secured
by the Collateral identified in this Agreement and shall be payable upon demand.
23. ASSIGNMENT. Owner shall not be entitled to assign any of its rights,
remedies, or obligations described in this Agreement without the prior written
consent of Lender. Consent maybe withheld by Lender in its sole discretion.
Lender shall be entitled to assign some or all of its rights and remedies
described in this Agreement without notice to or the prior consent of Owner in
any manner.
24. MODIFICATION AND WAIVER. The modification or waiver of any of Owner's
Obligations or Lender's rights under this Agreement must be contained in a
writing signed by Lender. Lender may perform any or Owner's Obligations or delay
or fail to exercise any of its rights without causing a waiver of those
Obligations or rights. A waiver on one occasion shall not constitute a waiver on
any other occasion. Owner's Obligations under this Agreement shall not be
affected if Lender amends, compromises, exchanges, fails to exercise, impairs or
releases any of the obligations belonging to any Owner or third party or any if
its rights against any Owner, third party or collateral. Owner waives any right
it may have to require Lender to pursue any third person for any of the
Obligations.
25. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon the inure
to the benefit of Owner and Lender and their respective successors, assign,
trustees, receivers, administrators, personal representatives, legatees, and
devisees.
26. NOTICES. Any notice or other communication to be provided under this
Agreement shall be in writing and sent to the parties at the addresses described
in this Agreement or such other address as the parties may designate in writing
from time to time.
27. SEVERABILITY. If any provision of this Agreement violates the law or is
unenforceable, the rest of the Agreement shall remain valid.
28. APPLICABLE LAW. This Agreement shall be governed by the laws of the
state identified in Lender's address, except to the extent that the Uniform
Commercial Code, presently or as hereafter amended or replaced, provides for the
application of the law of the state of Owner's location, as indicated in
Paragraph 5. Owner consents to the jurisdiction and venue of any court located
in the state indicated in Lender's address in the event of any legal proceeding
pertaining to the negotiation, execution, performance or enforcement of any term
or condition contained in this Agreement or any related document and agrees not
to commence or seek to remove such legal proceeding in or to a different court.
29. COLLECTION COSTS. If Lender hires an attorney to assist in collecting
any amount due or enforcing any right or remedy under this Agreement, Owner
agrees to pay Lender's reasonable attorney's fees and collection costs,
including, without limitation, any and all reasonable attorney's fees and costs
incurred on appeal of in any bankruptcy proceeding.
30. MISCELLANEOUS. This Agreement is executed for commercial purposes.
Owner shall supply information regarding Owner's business operations and
financial condition or the Collateral in the form and manner as requested by
Lender from time to time. All information furnished by Owner to Lender shall be
true, accurate, and complete in all respects. Owner and Lender agree that time
is of the essence. Owner waives presentment, demand for payment, notice of
dishonor, and protest except as required by law. All references to Owner in this
Agreement shall include all parties signing below except Lender. This Agreement
shall be binding upon the heirs, successors and assigns of Owner and Lender. If
there is more than one Owner, their obligations shall be joint and several. This
Agreement shall remain in full force and effect until Lender provides Owner with
written notice of termination. This Agreement and any related documents
represent the complete and integrated understanding between Owner and Lender
pertaining to the terms and conditions of those documents.
31. WAIVER OF JURY TRIAL. LENDER AND OWNER HEREBY KNOWINGLY, VOLUNTARILY
AND INTENTIONALLY WAIVE THE RIGHT EITHER MAY HAVE TO A TRIAL BY JURTY IN RESPECT
TO ANY LITIGATION BASED ON, OR ARISING OUT OF, UNDER OR IN CONJUNCTION WITH THE
PROMISSORY NOTE, THIS AGREEMENT AND ANY OTHER AGREEMENT CONTEMPLATED TO BE
EXECUTED IN CONJUNCTION HEREWITH OR THEREWITH, OR ANY COURSE OF CONDUCT, COURSE
OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF EITHER PARTY.
THIS PROVISION IS A MATERIAL INDUCEMENT FOR LENDER MAKING THE LOAN EVIDENCED BY
THE PROMISSORY NOTE.
32. ADDITIONAL TERMS:
IMPORTANT: READ BEFORE SIGNING. THE TERMS OF THIS AGREEMENT SHOULD
BE READ CAREFULLY BECAUSE ONLY THOSE TERMS IN WRITING ARE ENFORCEABLE. NO OTHER
TERMS OR ORAL PROMISES NOT CONTAINED IN THIS WRITTEN CONTRACT MAY BE LEGALLY
ENFORCED. YOU MAY CHANGE THE TERMS OF THIS AGREEMENT ONLY BY ANOTHER WRITTEN
AGREEMENT. THIS NOTICE ALSO APPLIES TO ANY OTHER CREDIT AGREEMENTS (EXCEPT
EXEMPT TRANSACTIONS) NOW IN EFFECT BETWEEN YOU AND THIS LENDER.
Owner acknowledges that Owner has read, understands, and agrees to the terms and
conditions of this Agreement. Owner acknowledges receipt of any exact copy of
this Agreement.
Dated: October 1, 2003
OWNER: WINNEBAGO INDUSTRIES, INC. OWNER: WINNEBAGO INDUSTRIES, INC.
/s/ Edwin F. Barker /s/ Joseph L. Soczek, Jr.
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EDWIN F. BARKER, VICE PRESIDENT & CFO JOSEPH L. SOCZEK, JR., TREASURER
OWNER: OWNER:
- ------------------------------------- --------------------------------------
OWNER: OWNER:
- ------------------------------------- --------------------------------------
OWNER: OWNER:
- ------------------------------------- --------------------------------------
SCHEDULE A
MANUFACTUERS BANK & TRUST COMPANY CERTIFICATE OF DEPOSIT NUMBER 34303 DATED
MARCH 27, 2002 FOR $500,000.00 IN THE NAME OF WINNEBAGO INDUSTRIES, INC.
SCHEDULE B
Record Owner Name:
SCHEDULE C
SCHEDULE D
FIRST SECURITY BANK & TRUST CO.
809 CLARK
PO BOX 607 DEPOSIT ACCOUNT
CHARLES CITY, IA 50616 CONTROL AGREEMENT
LENDER
- ----------------------------------- ---------------------------------------
OWNER DEPOSITORY INSTITUTION
- ----------------------------------- ---------------------------------------
WINNEBAGO INDUSTRIES, INC. MANUFACTURERS BANK & TRUST COMPANY
- ----------------------------------- ---------------------------------------
ADDRESS ADDRESS
- ----------------------------------- ---------------------------------------
PO BOX 474 PO BOX 450
FOREST CITY, IA 50436 FOREST CITY, IA 50436
- ----------------------------------- ---------------------------------------
- -----------------------------------
TELEPHONE NO. IDENTIFICATION NO.
- -----------------------------------
- ---------------- ------------- ---------------- ------------ -------------- --------------- -----------
OFFICER INTEREST PRINCIPAL FUNDING MATURITY CUSTOMER LOAN
INITIALS RATE AMOUNT DATE DATE NUMBER NUMBER
- ---------------- ------------- ---------------- ------------ -------------- --------------- -----------
5.75% $2,925,000.00 10/01/03 08/01/12 102271
- ---------------- ------------- ---------------- ------------ -------------- --------------- -----------
1. AGREEMENT, in consideration of the provisions of this Agreement, and for
other good and valuable consideration, which has been received by the parties,
Owner, Lender and Depository Institution identified above agree to all of the
provisions of this Agreement.
2. SECURITY INTEREST. Owner has given Lender a security interest, and has
pledged and assigned to Lender the following property (the "Collateral"):
[ ] All of Owner's existing and future accounts with Depository
Institution (collectively, and "Account"), all amendments, extensions,
renewals, and replacements of the Account, all existing and future
amounts of the Account, all existing and future interest and other
earnings on the account and all proceeds.
[X] Account number(s) 34303 CERTIFICATE OF DEPOSIT ISSUED MARCH 27, 2002
with Depository Institution (collectively, the "Account"), all
amendments, extensions, renewals and replacements of the Account, all
existing and future amounts in the Account, all existing and future
interest and other earnings on the Account, and all proceeds.
Owner and Lender hereby notify Depository Institution of the security
interest and Depository Institution acknowledges receipt of such
notification.
3. CONTROL. If the Collateral is one or more deposit accounts as defined by the
Uniform Commercial Code, presently or as hereafter amended or replaced, by
executing this Agreement, Owner and Depository Institution are giving Lender
control over the Account, and are perfecting the security interest of the
Collateral by control. Whether or not the Collateral is a deposit account as
defined by the Uniform Commercial Code, presently or as hereafter amended or
replaced, Depository Institution will comply with all instructions originated by
Lender directing disposition of the funds in the Account without any further
consent by Owner. This means that Depository Institution will comply with all
orders, requests and other instructions of Lender relating to the Account
including, but not limited to orders, notices, requests and other instructions
to withdraw or transfer any of the funds in the Account, to redeem or terminate
the Account, and to pay or transfer any of the funds in the Account to Lender or
any other person or entity. Depository Institution will promptly mark its
records to register Lender's security interest in the Collateral.
4. RIGHTS OF OWNER AND OTHERS.
[ ] Until Depository Institution receives notice from Lender that Owner's
rights in the Account are terminated, Depository Institution will
comply with all notices, requests and other instructions from Owner
for disposition of the funds in the Account. This includes, but is not
limited to orders, notices, requests or instructions to withdraw or
transfer any of the funds in the Account, and to pay or transfer any
of the funds in the Account to Owner or any other person or entity,
but not to redeem or terminate the Account. At all times after
Depository Institution receives notice of Lender's termination of
Owner's rights in the Account, Depository Institution will not honor
any check or other item drawn by Owner on the Account or any other
withdrawal or transfer by Owner from the Account, except in favor of
Lender.
[X] Until Depository Institution receives notice from Lender that Owner's
rights in the Account are terminated, Depository Institution will pay
to Owner all interest and other earnings on the account. Except as
noted in the previous sentence or unless Lender agrees in writing,
Depository Institution will not: (a) permit Owner to withdraw or
transfer any of the funds in the Account; (b) comply with any order,
notice, request or other instruction from Owner or any other person or
entity except Lender relating to the Account; or (c) pay or transfer
any of the funds in the Account to Owner or any other person or entity
except Lender or to any other account except the Account. At all times
after Depository Institution receives notice of Lender's termination
of Owner's rights in the Account, Depository Institution will not
honor any check or other item drawn by Owner of the Account or any
other withdrawal or transfer by Owner from the Account, except in
favor of Lender.
[X] Unless Lender agrees in writing, Depository Institution will not: (a)
permit Owner to withdraw or transfer any of the funds in the Account;
(b) comply with any order, notice, request or other instruction from
Owner or any other person or entity except Lender relating to the
Account; (c) pay or transfer any of the funds in the Account to Owner
or any other person or entity except Lender or to any other account
except the Account; or (d) honor any check or other item drawn by
Owner on the Accounts or any other withdrawal or transfer by Owner
from the Account, except in favor of Lender.
5. REPRESENTATIONS AND AGREEMENTS. Owner and Depository Institution represents
to Lender and agree that:
(a) No person or entity except Lender has control over any of the
Collateral. Neither Owner nor Depository Institution has entered into
any acknowledgement or agreement (including, but not limited to any
control agreement, pledged account agreement, blocked account
agreement or other acknowledgement or agreement) that gives any person
or entity other than Lender control over any of the Collateral or any
other security interest, pledge, assignment lien or other right or
title in any of the Collateral. Neither Owner nor Depository
Institution will permit any person or entity except Lender to have
control over any of the Collateral or any other security interest,
pledge, assignment, lien or other right or title in any of the
Collateral. Neither Owner nor Depository Institution will enter into
any acknowledgement or agreement (including, but not limited to any
control agreement, pledged account agreement, blocked account
agreement or other acknowledgement or agreement) that gives any person
or entity other than Lender control over any of the Collateral or any
other security interest, pledge, assignment, lien or other right or
title in any of the Collateral. Unless Lender agrees in writing, Owner
is and will remain the sole account holder of the Account. Owner and
Depository Institution will immediately notify Lender if any person or
entity makes a claim against any of the Collateral, or claims any
security interest, pledge, assignment, lien or other right or title in
any of the Collateral.
(b) Depository Institution has not issued, and will not issue, any
security (as defined by the Uniform Commercial Code presently or as
hereafter amended or replaced) for any of the Collateral, and has not
given, and will not give, any security for any of the Collateral to
Owner or any other person or entity.
(c) All of Depository Institution's existing and future security
interests, pledges, assignments, liens, claims, rights of set off and
recoupment, and other right, title and interest in any of the
Collateral are and will remain fully subordinate to Lender's security
interest. Depository Institution will not assert or enforce any of its
existing or future security interests, pledges, assignments, liens,
claims, rights of set off or recoupment, or other right, title or
interest in any of the Collateral, except that Depository Institution
may charge standard account fees for the Account and for any checks or
other items that are deposited into the Account and returned unpaid.
Lender is not liable to Depository Institution for any such fees,
returned checks or other returned items.
(d) Depository Institution is a bank as defined by the Uniform Commercial
Code, presently or as hereafter amended or replaced.
(e) At Lender's request, Depository Institution will send to Lender copies
of account statements and any other information concerning the
Collateral.
6. RIGHTS OF DEPOSITORY INSTITUTION. Depository Institution does not have to pay
uncollected funds or make funds available before it is otherwise required to do
so under federal law. Depository Institution may comply with all applicable
laws, regulations, rules, court orders and other legal processes pertaining to
the Account.
7. TAX REPORTING. Until and unless Lender notifies Depository Institution to use
a different name, Depository Institution will make all reports relating to the
Account to all federal, state and local tax authorities under the name
identification number of Owner.
8. TERMINATION. No provision in this Agreement can be changed, waived or
terminated, except by a writing executed by Lender, Owner and Depository
Institution, except that this Agreement may be terminated by a writing executed
by Lender and sent to Depository Institution in which Lender releases its
security interest with respect to all of the Collateral.
9. GOVERNING LAW. This Agreement will be governed by the laws of the State of
IOWA. Depository institution and Owner may not change the law governing the
Account without Lender's express written consent.
10. ENTIRE AGREEMENT. The Agreement is the entire agreement and supersedes any
prior agreement and contemporaneous oral agreements of the parties concerning
the subject matter.
11. AMENDMENTS. No amendment of, or waiver of a right under, this Agreement will
be binding unless it is in writing and signed by the party to be charged.
12. SEVERABILITY. If any provision of this Agreement violates the law or is
otherwise unenforceable, the rest of the Agreement shall remain valid.
13. SUCCESSORS AND ASSIGNS. A successor to and assignee of Lender's rights and
obligations under the security agreement between Lender and Owner will succeed
to Lender's rights and obligations under this Agreement.
14. NOTICES. Any notice or other communication to be provided under this
Agreement shall be in writing and sent to the parties at the address described
in this Agreement or such other addresses as the parties may designate in
writing from time to time.
- --------------------------------------------------------------------------------
Dated: OCTOBER 1, 2003
OWNER: WINNEBAGO INDUSTRIES, INC. OWNER: WINNEBAGO INDUSTRIES, INC.
/s/ Edwin F. Barker /s/ Joseph L. Soczek, Jr.
- ---------------------------------------- --------------------------------------
EDWIN F. BARKER, VICE PRESIDENT & CFO JOSEPH L. SOCZEK, JR. TREASURER
OWNER: OWNER:
- ---------------------------------------- --------------------------------------
OWNER: OWNER:
- ---------------------------------------- --------------------------------------
BORROWER: FOREST CITY ECONOMIC BORROWER: FOREST CITY ECONOMIC
DEVELOPMENT, INC. DEVELOPMENT, INC.
/s/ Lloyd M. Willig /s/ Mary Ann Farus
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LLOYD M. WILLIG, TREASURER MARY ANN FARUS, VICE PRESIDENT
LENDER: FIRST SECURITY BANK & DEPOSITORY INSTITUTION: MANUFACTURERS
TRUST CO. BANK AND
TRUST COMPANY
/s/ Norman J. Gerdes /s/ Richard M. Fischer
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NORMAN J. GERDES, RICHARD M. FISCHER
EXECUTIVE VICE PRESIDENT SENIOR VICE PRESIDENT
RELEASE BY LENDER
This is to advise Depository Institution that Lender's Security Interest in the
Collateral has been RELEASED.
LENDER:
BY:
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TITLE:
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DATED:
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First Security Bank & Trust Co.
803 Clark
PO Box 607 COLLATERAL RECEIPT
Charles City, IA 50616 NO. 102271
"LENDER"
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BORROWER OWNER
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FOREST CITY ECONOMIC DEVELOPMENT, INC. WINNEBAGO INDUSTRIES, INC.
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ADDRESS ADDRESS
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PO BOX 347 PO BOX 347
FOREST CITY, IA 50436 FOREST CITY, IA 50436
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TELEPHONE NO. IDENTIFICATION NO. TELEPHONE NO. IDENTIFICATION NO.
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OFFICER INTEREST PRINCIPAL AMOUNT/ FUNDING/ MATURITY CUSTOMER LOAN NUMBER
INITIALS RATE CREDIT LIMIT AGREEMENT DATE DATE NUMBER
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5.75% $2.925,000.00 10/01/03 8/01/12 102271
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Owner hereby deposits with Lender as collateral to secure the Obligations of
Borrower or Owner to Lender the following described property:
MANUFACTURERS BANK & TRUST COMPANY CERTIFICATE OF DEPOSIT NO. 34303 ISSUED TO
WINNEBAGO INDUSTRIES, INC. IN THE AMOUTN OF $500,000.00
Owner and Lender acknowledge delivery of the above described collateral.
Date: 10/01/2003
LENDER: FIRST SECURITY BANK & TRUST CO.
/s/ Norman J. Gerdes
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NORMAN J. GERDES,
EXECUTIVE VICE PRESIDENT
OWNER: WINNEBAGO INDUSTRIES, INC. OWNER: WINNEBAGO INDUSTRIES, INC.
/s/ Edwin F. Barker /s/ Joseph L. Soczek, Jr.
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EDWIN F. BARKER, VICE PRESIDENT & CFO JOSEPH L. SOCZEK, JR. TREASURER
OWNER OWNER
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OWNER OWNER
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OWNER OWNER
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