Exhibit 10.38
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DEBTOR
NAME AND ADDRESS
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LENDER
NAME AND ADDRESS
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LOAN
DESCRIPTION
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Tower Tech Holdings
Inc.
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Investors Community
Bank
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Number
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44938101
mas
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101 S. 16th St.,
P.O. Box 1957
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860 N. Rapids
Road
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Amount $
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2,500,000.00
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Manitowoc, WI
54221-1957
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P.O. Box
700
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Date
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10-04-2007
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Manitowoc,Wl
54221-0700
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o Refer to
the attached Signature Addendum, incorporated herein, for
additional Debtors and their signatures.
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COMMERCIAL SECURITY
AGREEMENT
This Commercial
Security Agreement (Security Agreement) is an Addendum to a
Commercial Loan Agreement, dated 10-04-2007, (Loan Agreement)
between Tower Tech Systems Inc . (Borrower) and
Lender. This Security Agreement is further governed by the
terms of the Loan Agreement, where applicable. References in
this Addendum to terms defined in the Loan Agreement shall have the
definitions given to them in the Loan Agreement, unless otherwise
indicated. Debtor and Borrower may be the same. Where
Borrower and Debtor are not the same, Debtor means the owner of the
Property subject to this Security Agreement and Borrower means the
obligor on the Loan Agreement.
SECURED DEBTS.
This Security Agreement will secure the following debts
(Secured Debts), together with all extensions, renewals,
refinancings, modifications, and replacements of the Secured
Debts:
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(1)
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Sums Advanced. All
sums advanced and expenses incurred by Lender under the terms of
the Loan Agreement or this Security Agreement.
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(2)
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Specific Debts .
Debts created by the following instruments or agreements (
include items such as borrowers’ names, note amounts,
interest rates, maturity dates, etc. ):
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x
(3) All
Debts. Notice - The Property may also serve as
collateral for future advances. All present and future
debts from Borrower to Lender, even if this Security Agreement is
not specifically referenced, or if the future debt is unrelated to
or of a different type than this debt. If more than one
person signs the Loan Agreement as Borrower, Debtor agrees that
this Security Agreement will secure debts incurred by any Borrower
either individually or with others who may not sign the Loan
Agreement. Nothing in this Security Agreement constitutes a
commitment to make additional or future loans or advances.
Any such commitment must be in writing pursuant to the terms of the
Loan Agreement.
SECURITY INTEREST
. To secure the payment and performance of the Secured Debts,
Debtor gives Lender a security interest in all of the Property
described in this Security Agreement that Debtor owns or has
sufficient rights in which to transfer an interest, now or in the
future, wherever the Property is or will be located, and all
proceeds and products of the Property. “Property”
includes all parts, accessories, repairs, replacements,
improvements, and accessions to the Property; any original evidence
of title or ownership; and all obligations that support the payment
or performance of the Property. “Proceeds”
includes anything acquired upon the sale, lease, license, exchange,
or other disposition of the Property; any rights and claims arising
from the Property; and any collections and distributions on account
of the Property. This Security Agreement remains in effect
until terminated in writing, even if the Secured Debts are paid and
Lender is no longer obligated to advance funds to Debtor or
Borrower.
PROPERTY
DESCRIPTION . The Property is described as follows:
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x
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Accounts and Other Rights to
Payment: All rights to payment, whether or not earned by
performance, including, but not limited to, payment for property or
services sold, leased, rented, licensed, or assigned. This includes
any rights and interests (including all liens) which Debtor may
have by law or agreement against any account debtor or obligor of
Debtor.
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x
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Inventory: All
inventory held for ultimate sale or lease, or which has been or
will be supplied under contracts of service, or which are raw
materials, work in process, or materials used or consumed in
Debtor’s business.
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x
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Equipment: All
equipment including, but not limited to, machinery, vehicles,
furniture, fixtures, manufacturing equipment, farm machinery and
equipment, shop equipment, office and record keeping equipment,
parts, and tools. The Property includes any equipment described in
a list or schedule Debtor gives to Lender, but such a list is not
necessary to create a valid security interest in all of
Debtor’s equipment.
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x
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Instruments and Chattel
Paper: All instruments, including negotiable instruments
and promissory notes and any other writings or records that
evidence the right to payment of a monetary obligation, and
tangible and electronic chattel paper.
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x
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General
Intangibles: All general intangibles including, but not
limited to, tax refunds, patents and applications for patents,
copyrights, trademarks, trade secrets, goodwill, trade names,
customer lists, permits and franchises, payment intangibles,
computer programs and all supporting information provided in
connection with a transaction relating to computer programs, and
the right to use Debtor’s name.
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x
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Documents: All
documents of title including, but not limited to, bills of lading,
dock warrants and receipts, and warehouse receipts.
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o
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Farm Products and
Supplies: All farm products including, but not limited
to, all poultry and livestock and their young, along with their
produce, products, and replacements; all crops, annual or
perennial, and all products of the crops; and all feed, seed,
fertilizer, medicines, and other supplies used or produced in
Debtor’s farming operations. North Dakota only - This
Security Agreement covers crops now growing. This Security
Agreement also covers future crops to be grown in the current year
or any year hereafter.
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x
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Government Payments and
Programs: All payments, accounts, general intangibles,
and benefits including, but not limited to, payments in kind,
deficiency payments, letters of entitlement, warehouse receipts,
storage payments, emergency assistance and diversion payments,
production flexibility contracts, and conservation reserve payments
under any preexisting, current, or future federal or state
government program.
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x
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Investment
Property: All investment property including, but not
limited to, certificated securities, uncertificated securities,
securities entitlements, securities accounts, commodity contracts,
commodity accounts, and financial assets.
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x
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Deposit Accounts:
All deposit accounts including, but not limited to, demand, time,
savings, passbook, and similar accounts.
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o
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Specific Property
Description: The Property includes, but is not limited
by, the following (if required, provide real estate
description):
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USE OF PROPERTY
. The Property will be used for o personal x business o agricultural o
purposes.
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o
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ADDITIONAL TERMS:
(include additional Security Agreement terms and contract
requirements) .
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Debtor
Type: o Individual
o Partnership x Corporation o
State of
Registration (if applicable)
NV
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SIGNATURES . By
signing under seal, Debtor agrees to all the terms and conditions
beginning on page 1 through the bottom of page 2 of this
Agreement. Debtor acknowledges receipt of a copy of this Security
Agreement.
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DEBTOR:
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Tower Tech Holdings
Inc.
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Entity Name
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/s/ Steven A.
Huntington
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(Seal)
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(Seal)
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Signature
Steven A. Huntington,
C.F.O Date
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Signature
Date
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(Seal)
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(Seal)
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Signature
Date
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Signature
Date
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LENDER:
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Investors Community
Bank
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Entity Name
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/s/ Robert
Boerger
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(Seal)
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(Seal)
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Signature
Robert Boerger, Senior Commercial Lender
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Date
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Signature
Date
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COMMERCIAL SECURITY
AGREEMENT: to be used with Form COMM-AGREE
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NOT TO BE USED FOR
LOANS SUBJECT TO CONSUMER LENDING LAWS
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1
GENERALLY .
This Security Agreement is governed by the terms of the Loan
Agreement and the laws of the state in which Lender is
located. In the event of a dispute, the exclusive forum,
venue, and place of jurisdiction will be the state in which Lender
is located, unless otherwise required by law. Each
Debtor’s obligations under this Security Agreement are
independent of the obligations of any other Debtor. Lender
may sue each Debtor individually or together with any other
Debtor. Lender may release any part of the Property and
Debtor will remain obligated under this Security Agreement for the
remaining Property. The duties and benefits of this Security
Agreement will bind and benefit the successors and assigns of
Debtor and Lender. No modification of this Security Agreement
is effective unless made in writing and signed by Debtor and
Lender. If any provision of this Security Agreement is
unenforceable, then the unenforceable provision will be severed and
the remaining provisions will still be enforceable. Whenever
used, the plural includes the singular and the singular includes
the plural. Section headings are for convenience only
and should not he used to define or interpret the terms of this
Security Agreement. Time is of the essence.
NAME AND LOCATION
. Debtor’s name indicated on page 1 is
Debtor’s exact legal name. If Debtor is an individual,
Debtor’s address is Debtor’s principal resid
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