Exhibit 10.6


 


ASSIGNMENT
OF DEPOSIT ACCOUNT


 


	
  Principal
  

  	
   

  	
  Loan
  Date 

  	
   

  	
  Maturity
  

  	
   

  	
  Loan No
  

  	
   

  	
  Call /
  Coll 

  	
   

  	
  Account

  	
   

  	
  Officer
  

  	
   

  	
  Initials

  
	
  $10,000,000.00

  	
   

  	
  04-28-2009

  	
   

  	
  01-05-2010

  	
   

  	
  15525078252

  	
   

  	
  1A2 /
  101

  	
   

  	
   

  	
   

  	
  Krugeg

  	
   

  	
   

  



 


References in the boxes above
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.


 


	
  Grantor:

  	
   

  	
  TOWER
  TECH SYSTEMS INC

  	
   

  	
  Lender:

  	
  GREAT
  WESTERN BANK

  
	
   

  	
   

  	
  101 S
  16TH ST PO BOX 1957

  	
   

  	
   

  	
  Sioux
  Falls

  
	
   

  	
   

  	
  MANITOWOC,
  WI 54221-1957

  	
   

  	
   

  	
  200 E
  10th Street

  Sioux Falls, SD 57104

  



 


THIS ASSIGNMENT OF DEPOSIT ACCOUNT dated April 28, 2009,
is made and executed between TOWER TECH SYSTEMS INC (“Grantor”) and GREAT
WESTERN BANK (“Lender”).


 


ASSIGNMENT. For valuable consideration,
Grantor assigns and grants to Lender a security interest in the Collateral, including
without limitation the deposit accounts described below, to secure the
Indebtedness and agrees that Lender shall have the rights stated in this
Agreement with respect to the Collateral, in addition to all other rights which
Lender may have by law.


 


COLLATERAL DESCRIPTION. The word “Collateral” means
the following described deposit account (“Account”):


 


Savings Account Number 1347401 with
Lender


 


together
with (A) all interest, whether now accrued or hereafter accruing; (B) all
additional deposits hereafter made to the Account; (C) any and all
proceeds from the Account; and (D) all renewals, replacements and
substitutions for any of the foregoing.


 


CROSS-COLLATERALIZATION. In addition to the Note, this
Agreement secures all obligations, debts and liabilities, plus interest
thereon, of Grantor to Lender, or any one or more of them, as well as all
claims by Lender against Grantor or any one or more of them, whether now
existing or hereafter arising, whether related or unrelated to the purpose of
the Note, whether voluntary or otherwise, whether due or not due, direct or
indirect, determined or undetermined, absolute or contingent, liquidated or
unliquidated, whether Grantor may be liable individually or jointly with
others, whether obligated as guarantor, surety, accommodation party or
otherwise, and whether recovery upon such amounts may be or hereafter may
become barred by any statute of limitations, and whether the obligation to
repay such amounts may be or hereafter may become otherwise unenforceable.


 


RIGHT OF SETOFF. To the extent permitted by
applicable law, Lender reserves a right of setoff in all Grantor’s accounts
with Lender (whether checking, savings, or some other account). This includes
all accounts Grantor holds jointly with someone else and all accounts Grantor
may open in the future. However, this does not include any IRA or Keogh
accounts, or any trust accounts for which setoff would be prohibited by law. Grantor
authorizes Lender, to the extent permitted by applicable law, to charge or
setoff all sums owing on the Indebtedness against any and all such accounts.


 


GRANTOR’S REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE
COLLATERAL. With respect to the Collateral, Grantor represents
and promises to Lender that:


 


Ownership. Grantor is the lawful owner
of the Collateral free and clear of all loans, liens, encumbrances, and claims
except as disclosed to and accepted by Lender in writing.


 


Right to Grant Security Interest. Grantor has the
full right, power, and authority to enter into this Agreement and to assign the
Collateral to Lender.


 


No Prior Assignment. Grantor has not
previously granted a security interest in the Collateral to any other creditor.


 


No Further Transfer. Grantor shall
not sell, assign, encumber, or otherwise dispose of any of Grantor’s rights in
the Collateral except as provided in this Agreement.


 


No Defaults. There are no
defaults relating to the Collateral, and there are no offsets or counterclaims
to the same. Grantor will strictly and promptly do everything required of
Grantor under the terms, conditions, promises, and agreements contained in or
relating to the Collateral.


 


Proceeds. Any and all
replacement or renewal certificates, instruments, or other benefits or proceeds
related to the Collateral that are received by Grantor shall be held by Grantor
in trust for Lender and immediately shall be delivered by Grantor to Lender to
be held as part of the Collateral.


 


Validity; Binding Effect. This Agreement
is binding upon Grantor and Grantor’s successors and assigns and is legally
enforceable in accordance with its terms.


 


Financing Statements. Grantor
authorizes Lender to file a UCC financing statement, or alternatively, a copy
of this Agreement to perfect Lender’s security interest. At Lender’s request,
Grantor additionally agrees to sign all other documents that are necessary to
perfect, protect, and continue: Lender’s
security interest in the Property. This includes making sure Lender is shown as
the first and only security interest holder on the title covering the Property.
Grantor will pay all filing fees, title transfer fees, and other fees and costs
involved unless prohibited by law or unless Lender is required by law to pay
such fees and costs. Grantor irrevocably appoints Lender to execute documents
necessary to transfer title if there is a default. Lender may file a copy of
this Agreement as a financing statement. If Grantor changes Grantor’s name or
address, or the name or address of any person granting a security interest
under this Agreement changes, Grantor will promptly notify the Lender of such
change.


 


LENDER’S RIGHTS AND OBLIGATIONS WITH RESPECT TO THE
COLLATERAL. While this Agreement is in effect, Lender may retain
the rights to possession of the Collateral, together with any and all evidence
of the Collateral, such as certificates or passbooks. This Agreement will
remain in effect until (a) there no longer is any Indebtedness owing to
Lender; (b) all other obligations secured by this Agreement have been
fulfilled; and (c) Grantor, in writing, has requested from Lender a
release of this Agreement.


 


LENDER’S EXPENDITURES. If any action or proceeding
is commenced that would materially affect Lender’s interest in the Collateral
or if Grantor fails to comply with any provision of this Agreement or any
Related Documents, including but not limited to Grantor’s failure to discharge
or pay when due any amounts Grantor is required to discharge or pay under this
Agreement or any Related Documents, Lender on Grantor’s behalf may (but shall
not be obligated to) take any action that Lender deems appropriate, including
but not limited to discharging or paying all taxes, liens, security interests,
encumbrances and other claims, at any time levied or placed on the Collateral
and paying all costs for insuring, maintaining and preserving the Collateral.
All such expenditures incurred or paid by Lender for such purposes will then
bear interest at the rate charged under the Note from the date incurred or paid
by Lender to the date of repayment by Grantor. All such expenses will become a
part of the Indebtedness and, at Lender’s option, will (A) be payable on
demand; (B) be added to the balance of the Note and be apportioned among
and be payable with any installment payments to become due during either (1) the
term of any applicable insurance policy; or (2) the remaining term of the
Note; or (C) be treated as a balloon payment which will be due and payable
at the Note’s maturity. The Agreement also will secure payment of these
amounts. Such right shall be in addition to all other rights and remedies to
which Lender may be entitled upon Default.


 


LIMITATIONS ON OBLIGATIONS OF LENDER. Lender shall use
ordinary reasonable care in the physical preservation and custody of any
certificate or passbook for the Collateral but shall have no other obligation
to protect the Collateral or its value. In particular, but without limitation,
Lender shall have no responsibility (A) for the collection or protection
of any income on the Collateral; (B) for the preservation of rights
against issuers of the Collateral or against third persons; (C) for
ascertaining any maturities, conversions, exchanges, offers, tenders, or similar
matters relating to the Collateral; nor (D) for informing the Grantor
about any of the above, whether or not Lender has or is deemed to have
knowledge of such matters.


 


DEFAULT. Each of the following shall
constitute an Event of Default under this Agreement:


 


Payment Default. Grantor fails to
make any payment when due under the Indebtedness.


 


Other Defaults. Grantor fails to
comply with or to perform any other term, obligation, covenant or condition
contained in this Agreement or in any of the Related Documents or to comply
with or to perform any term, obligation, covenant or condition contained in any
other agreement between Lender and Grantor.


 


False Statements. Any warranty,
representation or statement made or furnished to Lender by Grantor or on
Grantor’s behalf under this Agreement or the Related Documents is false or
misleading in any material respect, either now or at the time made or furnished
or becomes false or misleading at any time thereafter.


 


Defective Collateralization. This Agreement or any of the Related Documents
ceases to be in full force and effect (including failure of any collateral
document to create a valid and perfected security interest or lien) at any time
and for any reason.


 


Insolvency. The dissolution
or termination of Grantor’s existence as a going business, the insolvency of
Grantor, the appointment of a receiver for any part of Grantor’s property, any
assignment for the benefit of creditors, any type of creditor workout, or the
commencement of any proceeding under any bankruptcy or insolvency laws by or
against Grantor.


 


Creditor or Forfeiture Proceedings. Commencement of
foreclosure or forfeiture proceedings, whether by judicial proceeding,
self-help, repossession or any other method, by any creditor of Grantor or by
any governmental agency against any collateral securing the Indebtedness. This
includes a garnishment of any of Grantor’s accounts, including deposit
accounts, with Lender. However, this Event of Default shall not apply if there
is a good faith dispute by Grantor as to the validity or reasonableness of the
claim which is the basis of the creditor or forfeiture proceeding


 

















 


ASSIGNMENT OF DEPOSIT ACCOUNT


(Continued)


 


and if Grantor gives Lender written notice of the
creditor or forfeiture proceeding and deposits with Lender monies or a surety
bond for the creditor or forfeiture proceeding, in an amount determined by
Lender, in its sole discretion, as being an adequate reserve or bond for the
dispute.


 


Events Affecting Guarantor. Any of the
preceding events occurs with respect to any Guarantor of any of the
Indebtedness or Guarantor dies or becomes incompetent or revokes or disputes
the validity of, or liability under, any Guaranty of the Indebtedness.


 


Adverse Change. A material
adverse change occurs in Grantor’s financial condition, or Lender believes the
prospect of payment or performance of the Indebtedness is impaired.


 


Cure Provisions. If  any default,
other than a default in payment is curable and if Grantor has not been given a
notice of a breach of the same provision of this Agreement within the preceding
twelve (12) months, it may be cured if Grantor, after receiving written notice
from Lender demanding cure of such default: (1) cures the default within
fifteen (15) days; or (2) if the cure requires more than fifteen (15)
days, immediately initiates steps which Lender deems in Lender’s sole
discretion to be sufficient to cure the default and thereafter continues and
completes all reasonable and necessary steps sufficient to produce compliance
as soon as reasonably practical.


 


RIGHTS AND REMEDIES ON DEFAULT. Upon the
occurrence of an Event of Default, or at any time thereafter, Lender may
exercise any one or more of the following rights and remedies, in addition to
any rights or remedies that may be available at law, in equity, or otherwise:


 


Accelerate Indebtedness. Lender may
declare all Indebtedness of Grantor to Lender immediately due and payable,
without notice of any kind to Grantor.


 


Application of Account Proceeds. Lender may take
directly all funds in the Account and apply them to the Indebtedness. If the
Account is subject to an early withdrawal penalty, that penalty shall be
deducted from the Account before its application to the Indebtedness, whether
the Account is with Lender or some other institution. Any excess funds remaining
after application of the Account proceeds to the Indebtedness will  be paid to Grantor as the interests of
Grantor may appear. Grantor agrees, to the extent permitted by law, to pay any
deficiency after application of the proceeds of the Account to the
Indebtedness. Lender also shall have all the rights of a secured party under
the South Dakota Uniform Commercial Code, even if the Account is not otherwise
subject to such Code concerning security interests, and the parties to this
Agreement agree that the provisions of the Code giving rights to a secured
party shall nonetheless be a part of this Agreement.


 


Transfer Title. Lender may
effect transfer of title upon sale of all or part of the Collateral. For this
purpose, Grantor irrevocably appoints Lender as Grantor’s attorney-in-fact to
execute endorsements, assignments and instruments in the name of Grantor and
each of them (if more than one) as shall be necessary or reasonable.


 


Other Rights and Remedies. Lender shall
have and may exercise any or all of the rights and remedies of a secured
creditor under the provisions of the South Dakota Uniform Commercial Code, at
law, in equity, or otherwise.


 


Deficiency Judgment. If permitted by
applicable law, Lender may obtain a judgment for any deficiency remaining in
the Indebtedness due to Lender after application of all amounts received from
the exercise of the rights provided in this section.


 


Election of Remedies. Except as may be
prohibited by applicable law, all of Lender’s rights and remedies, whether evidenced
by this Agreement or by any other writing, shall be cumulative and may be
exercised singularly or concurrently. Election by Lender to pursue any remedy
shall not exclude pursuit of any other remedy, and an election to make
expenditures or to take action to perform an obligation of Grantor under this
Agreement, after Grantor’s failure to perform, shall not affect Lender’s right
to declare a default and exercise its remedies.


 


Cumulative Remedies. All of Lender’s
rights and remedies, whether evidenced by this Agreement or by any other
writing, shall be cumulative and may be exercised singularly or concurrently. Election
by Lender to pursue any remedy shall not exclude pursuit of any other remedy,
and an election to make expenditures or to take action to perform an obligation
of Grantor under this Agreement, after Grantor’s failure to perform, shall not
affect Lender’s right to declare a default and to exercise its remedies.


 


MISCELLANEOUS PROVISIONS. The following miscellaneous
provisions are a part of this Agreement:


 


Amendments. This Agreement,
together with any Related Documents, constitutes the entire understanding and
agreement of the parties as to the matters set forth in this Agreement. No
alteration of or amendment to this Agreement shall be effective unless given in
writing and signed by the party or parties sought to be charged or bound by the
alteration or amendment.


 


Attorneys’
Fees; Expenses. Grantor agrees to pay upon demand all of Lender’s
costs and expenses, including Lender’s attorneys’ fees and Lender’s legal
expenses, incurred in connection with the enforcement of this Agreement. Lender
may hire or pay someone else to help enforce this Agreement, and Grantor shall
pay the costs and expenses of such enforcement. Costs and expenses include Lender’s
attorneys’ fees and legal expenses whether or not there is a lawsuit, including
attorneys’ fees and legal expenses for bankruptcy proceedings (including
efforts to modify or vacate any automatic stay or injunction), appeals, and any
anticipated post-judgment collection services. Grantor also shall pay all court
costs and such additional fees as may be directed by the court.


 


Caption Headings. Caption headings
in this Agreement are for convenience purposes only and are not to be used to
interpret or define the provisions of this Agreement.


 


Governing Law. This Agreement will
be governed by federal law applicable to Lender and, to the extent not
preempted by federal law, the laws of the State of South Dakota without regard
to its conflicts of law provisions. This Agreement has been accepted by Lender
in the State of South Dakota.


 


Choice of Venue. If there is a
lawsuit, Grantor agrees upon Lender’s request to submit to the jurisdiction of
the courts of Minnehaha County, State of South Dakota.


 


No Waiver by Lender. Lender shall not
be deemed to have waived any rights under this Agreement unless such waiver is
given in writing and  signed by
Lender. No delay or omission on the part of Lender in exercising any right
shall operate as a waiver of such right or any other right. A waiver by Lender
of a provision of this Agreement shall not prejudice or constitute a waiver of
Lender’s right otherwise to demand strict compliance with that provision or any
other provision of this Agreement. No prior waiver by Lender, nor any course of
dealing between Lender and Grantor, shall constitute a waiver of any of Lender’s
rights or of any of Grantor’s obligations as to any future transactions. Whenever
the consent of Lender is required under this Agreement, the granting of such
consent by Lender in any instance shall not constitute continuing consent to
subsequent instances where such consent is required and in all cases such
consent may be granted or withheld in the sole discretion of Lender.


 


Notices. Any notice
required to be given under this Agreement shall be given in writing, and shall
be effective when actually delivered, when actually received by telefacsimile
(unless otherwise required by law), when deposited with a nationally recognized
overnight courier, or, if mailed, when deposited in the United States mail, as
first class, certified or registered mail postage prepaid, directed to the
addresses shown near the beginning of this Agreement. Any party may change its
address for notices under this Agreement by giving formal written notice to the
other parties, specifying that the purpose of the notice is to change the party’s
address. For notice purposes, Grantor agrees to keep Lender informed at all
times of Grantor’s current address. Unless otherwise provided or required by
law, if there is more than one Grantor, any notice given by Lender to any
Grantor is deemed to be notice given to all Grantors.


 


Power of Attorney. Grantor hereby
appoints Lender as its true and lawful attorney-in-fact, irrevocably, with full
power of substitution to do the following: (1) to demand, collect,
receive, receipt for, sue and recover all sums of money or other property which
may now or hereafter become due, owing or payable from the Collateral; (2) to
execute, sign and endorse any and all claims, instruments, receipts, checks,
drafts or warrants issued in payment for the Collateral; (3) to settle or
compromise any and all claims arising under the Collateral, and in the place
and stead of Grantor, to execute and deliver its release and settlement for the
claim; and (4) to file any claim or claims or to take any action or
institute or take part in any proceedings, either in its own name or in the
name of Grantor, or otherwise, which in the discretion of Lender may seem to be
necessary or advisable. This power is given as security for the Indebtedness,
and the authority hereby conferred is and shall be irrevocable and shall remain
in full force and effect until renounced by Lender.


 


Severability. If a court of
competent jurisdiction finds any provision of this Agreement to be illegal,
invalid, or unenforceable as to any circumstance, that finding shall not make
the offending provision illegal, invalid, or unenforceable as to any other
circumstance. If feasible, the offending provision shall be considered modified
so that it becomes legal, valid and enforceable. If the offending provision
cannot be so modified, it shall be considered deleted from this Agreement. Unless
otherwise required by law, the illegality, invalidity, or unenforceability of any
provision of this Agreement shall not affect the legality, validity or
enforceability of any other provision of this Agreement.


 


Successors and Assigns. Subject to any
limitations stated in this Agreement on transfer of Grantor’s interest, this
Agreement shall be binding upon and inure to the benefit of the parties, their
successors and assigns. If ownership of the Collateral becomes vested in a
person other than Grantor, Lender, without notice to Grantor, may deal with
Grantor’s successors with reference to this Agreement and the Indebtedness by
way of forbearance or extension without releasing Grantor from the obligations
of this Agreement or liability under the Indebtedness.


 


Survival of Representations and
Warranties. All representations, warranties, and agreements made
by Grantor in this Agreement shall survive the execution and delivery of this
Agreement, shall be continuing in nature, and shall remain in full force and
effect until such time as Grantor’s Indebtedness shall be paid in full.


 


Time is of the Essence. Time is of the
essence in the performance of this Agreement.


 


2

















 


ASSIGNMENT OF DEPOSIT ACCOUNT


(Continued)


 


DEFINITIONS. The following capitalized
words and terms shall have the following meanings when used in this Agreement. Unless
specifically stated to the contrary, all references to dollar amounts shall
mean amounts in lawful money of the United States of America. Words and terms
used in the singular shall include the plural, and the plural shall include the
singular, as the context may require. Words and terms not otherwise defined in
this Agreement shall have the meanings attributed to such terms in the Uniform
Commercial Code:


 


Account. The word “Account”
means the deposit accounts described in the “Collateral Description” section.


 


Agreement. The word “Agreement”
means this Assignment of Deposit Account, as this Assignment of Deposit Account
may be amended or modified from time to time, together with all exhibits and
schedules attached to this Assignment of Deposit Account from time to time.


 


Borrower. The word “Borrower”
means TOWER TECH SYSTEMS INC and includes all co-signers and co-makers signing
the Note and all their successors and assigns.


 


Collateral. The word “Collateral”
means all of Grantor’s right, title and interest in and to all the Collateral
as described in the Collateral Description section of this Agreement.


 


Default. The word “Default”
means the Default set forth in this Agreement in the section titled “Default”.


 


Event of Default. The words “Event
of Default” mean any of the events of default set forth in this Agreement in
the default section of this Agreement.


 


Grantor. The word “Grantor”
means TOWER TECH SYSTEMS INC.


 


Guarantor. The word “Guarantor”
means any guarantor, surety, or accommodation party of any or all of the
Indebtedness.


 


Guaranty. The word “Guaranty”
means the guaranty from Guarantor to Lender, including without limitation a
guaranty of all or part of the Note.


 


Indebtedness. The word “Indebtedness”
means the indebtedness evidenced by the Note or Related Documents, including
all principal and  interest
together with all other indebtedness and costs and expenses for which Grantor
is responsible under this Agreement or under any of the Related Documents. Specifically,
without limitation, Indebtedness includes all amounts that may be indirectly
secured by the Cross-Collateralization provision of this Agreement.


 


Lender. The word “Lender”
means GREAT WESTERN BANK, its successors and assigns.


 


Note. The word “Note”
means the Note executed by TOWER TECH SYSTEMS INC in the principal amount of
$10,000,000.00 dated April 28, 2009, together with all renewals of,
extensions of, modifications of, refinancings of, consolidations of, and substitutions
for the note or credit agreement.


 


Property. The word “Property”
means all of Grantor’s right, title and interest in and to all the Property as
described in the “Collateral Description” section of this Agreement.


 


Related Documents. The words “Related
Documents” mean all promissory notes, credit agreements, loan agreements,
environmental agreements, guaranties, security agreements, mortgages, deeds of
trust, security deeds, collateral mortgages, and all other instruments,
agreements and documents, whether now or hereafter existing, executed in
connection with the Indebtedness.


 


GRANTOR HAS READ AND UNDERSTOOD ALL THE PROVISIONS OF
THIS ASSIGNMENT OF DEPOSIT ACCOUNT AND AGREES TO ITS TERMS. THIS AGREEMENT IS
DATED APRIL 28, 2009.


 


	
  GRANTOR:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  TOWER TECH SYSTEMS INC

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ Steve Huntington

  	
   

  
	
   

  	
  STEVE HUNTINGTON, CHIEF FINANCIAL OFFICER

  of TOWER TECH SYSTEMS INC

  	
   

  
	
   

  	
   

  
	
  LENDER:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  GREAT WESTERN BANK

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  X

  	
  /s/ Gerald E. Kruger

  	
   

  
	
   

  	
  Authorized Signer

  	
   

  
				



 


LASER PRO Lending,
Vet, 5,43,00,003 Copr, Harlend Financial Solutions, Inc. 1997, 2009. All Rights
Reserved, -SD o:\officers\apps\CFI\LPL\E90.FC TR-14464 PR-34


 


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