Exhibit 10.12
SECURITY AGREEMENT - ACCOUNTS AND INVENTORY
1. Grant of Security Interest. FUTUREFUEL CHEMICAL COMPANY, a
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Delaware corporation with its principal place of business located at ▇▇▇▇ ▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Debtor"), in order to induce REGIONS BANK
("Bank") to extend certain financial accommodations and in consideration
thereof and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, hereby transfers, assigns, and
grants to Bank a continuing and irrevocable security interest and general lien
in and to all of the following property and rights of Debtor:
(a) All now owned or hereafter acquired Accounts,
accounts receivable, other receivables, any right
to payment of a monetary obligation, whether or not
earned by performance, leases and lease payments,
contract rights, any other obligations or
indebtedness owed to Debtor from whatever source
arising; all other rights of Debtor to receive
performance or any payments in money or in kind,
whether or not earned by performance, all
guaranties, security interests and Supporting
Obligations of any of the foregoing and insurance
policies and proceeds relating thereto, and all
rights of Debtor as an unpaid seller of Goods and
services, including, but not limited to, the rights
to stoppage in transit, replevin, reclamation, and
resale, and rights to payment for money or funds
advanced or sold. The rights and property described
in this Section 1(a) are referred to herein
collectively as the "Accounts Collateral."
(b) All now owned or hereafter acquired Inventory,
merchandise, raw materials, goods in process, work
in progress, materials used or consumed in a
business, finished goods, findings or component
materials, and all supplies, incidentals, office
supplies, packaging materials, and any and all
property or items used or consumed in the operation
of the business of Debtor and which contribute to
the finished products or to the sale, promotion and
shipment thereof, all property held by Debtor for
sale or lease or to be furnished under a contract
for service and all Documents evidencing any part
of any of the foregoing. The rights and property
described in this Section 1(b) are referred to
herein collectively as the "Inventory Collateral."
(c) All now owned or hereafter acquired General
Intangibles which specifically relate to, are used
in connection with, or are necessary in order for
Bank to realize the benefits of its security
interest in the Accounts Collateral and the
Inventory Collateral, including but not limited to
all claims and causes of action, and all other
intangible personal property of Debtor of every
kind and nature, whether registered or
unregistered, Payment Intangibles, corporate or
other business records, all books, mailing and
customer lists, ledgers, books of account, records,
writings, data bases, software, information and
data however stored or embedded, inventions,
designs, blueprints, plans specifications, patents,
patent applications, service marks, trademarks,
trade names, trade secrets, domain names,
processes, formulas, goodwill, copyrights,
registrations, licenses, permits, leases,
contracts, governmental approvals, franchises,
applications and renewals of any of the foregoing,
privileges, rights, tax refunds and tax claims, any
swap, hedging or derivatives agreements, insurance
proceeds, pension and insurance surpluses. The
rights and property described in this Section 1(c)
are referred to herein as the "General Intangibles
Collateral."
(d) All now owned or hereafter acquired, Chattel Paper,
Instruments, Notes, Promissory Notes, Deposit
Accounts, Investment Property, Securities, letters
of credit, Letter-of-Credit Rights, Documents,
Payment Intangibles and Financial Assets which
specifically relate to, are used in connection
with, or are necessary in order for Bank to realize
the benefits of its security interest in the
Accounts Collateral and the Inventory Collateral,
including but not limited all Supporting
Obligations for any of the foregoing, as well as
any and all tolling agreements or similar
arrangements entered into by Debtor, including but
not limited to those specific tolling agreements
listed on Exhibt A hereto ("Other Property
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Collateral").
(e) All Proceeds including proceeds and products of all
of the foregoing and all additions and accessions
to, replacements and substitutions of, insurance
policies and payments, condemnation proceeds of,
and documents covering all of the foregoing, all
property received wholly or partly in trade or
exchange for all of the foregoing, and all income,
rents, revenues, dividends, distributions, issues,
profits, cash or non-cash proceeds and accessions
arising from the sale, lease, license, encumbrance,
collection, or any other temporary or permanent
disposition of any of the foregoing or any interest
therein (the "Proceeds").
Capitalized terms used and not defined herein shall have the meanings
given to them in the Uniform Commercial Code as adopted and in force in the
State of Arkansas, as from time to time amended.
The Accounts Collateral, Inventory Collateral General Intangibles
Collateral, Other Property Collateral and Proceeds are collectively referred
to herein as the "Collateral."
2. Proceeds. The security interests granted to Bank in any proceeds
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or other property arising out of the disposition of the Collateral and
anything contained herein or in any financing statement shall not be deemed
permission or assent by Bank to any sale of disposition of the Collateral
except to the extent expressly provided herein or as may be provided in that
certain Credit Agreement by and between Debtor and Bank and dated of even date
herewith (the "Credit Agreement").
3. Indebtedness Secured. The security interest granted hereby is to
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secure payment in full of (i) any and all sums from time to time due from
Debtor to Bank under the Note (as such term is defined in the Credit
Agreement), any other instruments evidencing the indebtedness of Debtor to
Bank under the Credit Agreement or any other Loan Document (as such term is
defined in the Credit Agreement) and the full and complete performance of all
agreements contained in the Credit Agreement, this Security Agreement and the
other Loan Documents, all as same may be amended, modified or extended from
time to time, (ii) all advances made by Bank to discharge taxes or levies on,
or made for repairs to, maintenance of, or insurance on, the Collateral, (iv)
all costs and expenses incurred in the collection of the foregoing, including
representation in any bankruptcy proceedings, including reasonable attorney's
fees, and (v) all obligations and liabilities of Debtor arising pursuant to or
in connection with any interest rate swap, basis swap, forward rate, interest
rate option, collar or corridor agreement or transaction or any similar
transaction between the Debtor and Bank or any of Bank's affiliates which
relates to the obligations of Debtor to Bank pursuant to the Credit Agreement,
which may now or hereafter be entered into or amended, modified, extended, or
renewed (all of the above being referred to, collectively, as the
"Obligations").
It is the true, clear, and express intention of Debtor that the
continuing grant of this security interest remain as security for payment and
performance of the Obligations, whether now existing, or
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which may hereinafter be incurred, or whether or not contemplated by the
parties at the time of the granting of this security interest. The notice of
the continuing grant of this security interest, therefore, shall not be
required to be stated on the face of any document representing any
Obligations, nor otherwise identify it as being secured hereby; and if such
Obligations shall remain, or become that of less than all of Debtors herein,
any Debtor not liable therefrom hereby expressly hypothecates his, her, its or
their ownership interest in the Collateral to the extent required to satisfy
the Obligations, without restriction, or limitation. To the extent permitted
by law, any Obligations shall be deemed to have been made pursuant to Section
400.9-204 of the Uniform Commercial Code of Missouri.
4. Debtor's Name, Place of Business and Location of Collateral.
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Debtor's (i) chief executive office and primary Collateral location is ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and Debtor agrees that it will promptly
notify Bank of the address and location of any Collateral not stored or
located at the primary location referenced above (other than Inventory
Collateral in transit as may be permitted by the Credit Agreement); (ii) its
State of incorporation is Delaware and Debtor shall not change its State of
incorporation until such time as all outstanding Obligations to Bank have been
satisfied in full; and (iii) its exact legal name is as first provided above.
Collateral shall not be attached to any real estate ("Real
Property"). Debtor agrees to notify Bank in writing of any intended sale,
mortgage or conveyance of any Real Property on which the Collateral is located
and to give written notice of the terms and conditions of this Security
Agreement to any prospective purchaser, mortgagee or grantee of said Real
Property and a copy of such notice to Bank.
When any Collateral is in the possession of a third party, the Debtor
will join with the Bank in notifying the third party of the Bank's security
interest and obtaining an acknowledgement from the third party that it is
holding the Collateral for the benefit of the Debtor and the Bank. The Debtor
will obtain control agreements in form satisfactory to the Bank as deemed
necessary by the Bank for purposes of further perfecting or enforcing the
security interests of the Bank hereunder.
5. Collateral Use. To the extent reasonable or practical, the
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Collateral shall be kept in good order and repair and Debtor will not permit
waste or do anything to impair the value of the Collateral or any part thereof
(other than obsolescence in the ordinary course of the Debtor's business) or
use or permit others to use the Collateral in violation of any insurance
policy covering the Collateral or any statute, ordinance or state or federal
regulation that may be applicable to the Collateral. Debtor shall give Bank
immediate written notice of any damage, destruction, theft, loss or the
occurrence of any material event which materially impairs the value of the
Collateral, normal wear and tear or obsolescence excepted.
6. Adverse Security Interests and Liens. Except for the security
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interest granted hereby, Debtor is, or, to the extent that the Collateral will
be acquired after the date hereof, will be, the owner of the Collateral free
from any and all liens, security interests or encumbrances; Debtor shall not
transfer or assign any interest in this Security Agreement or the Collateral
except as may be permitted by Section 12 hereof or by the terms and conditions
of the Credit Agreement; and Debtor, at Debtor's expense, will defend the
Collateral against all claims and demands of all other persons at any time
claiming the same or an interest therein. There is no financing statement now
on file in any public office covering the Collateral, or intended so to be, or
in which Debtor is named or signed as debtor, and Debtor will not execute and
there will not be on file in any public office any financing statement or
statements covering the Collateral except the financing statement to be filed
in respect of and for the security interest in Bank hereby granted or provided
for.
7. Insurance. Debtor, at Debtor's sole cost, shall at all times keep
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the insurable Collateral insured against physical loss or damage with coverage
to be in special coverage form, plus earthquake, flood and other hazards (to
the extent necessary or required by Bank) in an amount not less than the
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greater of (1) the full replacement cost or (2) such other amount as may from
time to time be required by Bank, with no co-insurance clauses or deductibles
in excess of $250,000.00 (other than deductibles relating to tornado and
earthquake insurance, which Bank acknowledges exceeds $250,000.00) in the
policies of insurance unless Bank shall consent thereto in writing (such
consent not to be unreasonably withheld, conditioned or delayed), in such
form, for such periods and written by such companies as may be reasonably
satisfactory to Bank, payable to and protecting Bank for not less than the
total amount owing on the Obligations secured hereby. Debtor shall maintain
combined form business interruption and extra expense coverage. In addition,
Debtor shall maintain commercial general liability insurance in occurrence
form with coverage limits of at least $2,000,000.00 annual aggregate,
$1,000,000.00 per occurrence or as otherwise acceptable to Bank. All such
insurance shall be carried by companies authorized to insure in Arkansas and
which have an AM Best rating of AX or better and are otherwise acceptable to
Bank, and all such policies shall be in form reasonably acceptable to Bank.
All policies of property damage insurance covering the insurable Collateral
shall provide that Bank be the loss payee with respect thereto and that such
proceeds shall be paid first to Bank and that Bank shall be protected against
loss from any act or neglect of Debtor or third parties, and such other
endorsements as Bank may from time to time reasonably request. Debtor will
promptly provide Bank with evidence of such insurance. Such insurance shall
require a minimum of thirty (30) days prior written notice to Bank of any
cancellation thereof or any changes affecting coverage, and no act or omission
by Company shall invalidate the obligation of the insurer to Bank. Debtor
hereby assigns to Bank, its successors and assigns, the proceeds of all such
property damage insurance on the insurable Collateral to the extent of the
unpaid balance of the Obligations secured hereby; and appoints Bank as its
attorney-in-fact (exercisable only upon and during the continuance of an Event
of Default (as such term is defined in the Credit Agreement)) to file claims
under any such insurance policies, to receive, receipt and give acquittance
for any payments that may be payable thereunder, and to execute any and all
endorsements, receipts, releases, assignments, reassignments or other
documents that may be necessary to effect the collection, compromise or
settlement of any claims under any such insurance policies. Upon or during the
continuance of an Event of Default, Bank or its successors or assigns may
cancel such insurance at any time and shall receive the return premium, if
any, therefor, and may apply such return premium to the purchase of similar
insurance or to the balance due on the Obligations secured hereby at its
election. The insurance provisions herein contained are in addition to and not
in limitation of any other insurance requirements contained in other
agreements of Debtor to Bank. Any such insurance proceeds received by Bank
will be returned to the Debtor except upon the occurrence of an Event of
Default, in which case any such insurance proceeds may be retained and applied
by the Bank in the manner set forth in the Credit Agreement.
8. Records. The records concerning the Collateral will be kept at the
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address indicated in Section 4 hereof. Bank may inspect such records or the
Collateral at any time at such address or at any other address set forth in
the Credit Agreement. Debtor will not remove any part of such records from
said location without the prior written consent of Bank, with consent may not
be unreasonably withheld, conditioned or delayed.
9. Financing Statement and Others Acts. Debtor irrevocably authorizes
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Bank at any time and from time to time to file financing or continuation
statements and/or amendments thereof, without the signature of Debtor, and
Debtor shall execute and deliver such other instruments and documents as may
be requested by Bank to perfect, confirm and further evidence the security
interest and assignments hereby granted and shall pay the fees incurred in
filing all such financing statements or other instruments or documents. If any
applicable law requires the registration of the Collateral or the issuance of
a certificate of title therefor or both, Debtor agrees to promptly comply with
such law(s) and shall cause notice of the security interest of Bank to be
shown on any such certificate of title and will join in executing such
application for the title forms as Bank shall require.
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Upon request of Bank, Debtor will promptly do all other acts and
things, and will execute and file all other instruments deemed necessary by
Bank under applicable law to establish, maintain and continue Bank's perfected
first priority security interest in the Collateral and to effectuate the
intent of this Security Agreement and will pay all costs and expenses of
filing and recording or promptly reimburse Bank there for if such costs and
expenses are incurred by Bank, including the costs of any searches deemed
necessary by Bank to establish, determine or maintain the validity and the
priority of the security interest of Bank, and pay or otherwise satisfy all
other claims and charges which in the opinion of Bank might prejudice, imperil
or otherwise affect the Collateral or Bank's security interest therein. A
photocopy of this Security Agreement shall be deemed an original for purposes
of filing or recording.
10. Taxes and Assessments. Debtors will pay promptly when due all
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taxes, assessments and other charges levied or assessed upon the Collateral or
for its use or operation or upon this Security Agreement or upon any or other
documents evidencing the Obligations.
11. Collateral Certificates and Schedules. Debtor shall furnish to
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Bank from time to time, upon request, written statements, certificates and
schedules which may be required by the terms and conditions of the Credit
Agreement, which shall identify and describe the Collateral and any additions
thereto and substitutions therefor in such detail as Bank may reasonably
require and which shall be certified as to accuracy by the President or Chief
Executive Officer of Debtor.
12. Collateral Disposition. Until the occurrence of an Event of
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Default:
(a) Debtor may have possession of the Collateral and
use it in any lawful manner not inconsistent with
this Agreement or with any policy of insurance
thereon;
(b) Debtor may sell the Inventory Collateral in the
ordinary course of Debtor's business (excluding,
however, transfers or dispositions on satisfaction
of debt), and Debtor may use and consume raw
materials or supplies, or dispose of any obsolete
Inventory Collateral, the use, consumption or
disposition of which is necessary in order to carry
on Debtor's business in the ordinary course; and
(c) Debtor will, at its own expense, collect, as and
when due, all amounts due under the Accounts
Collateral, including the taking of such action
with respect to such collection as Bank may
reasonably request or, in the absence of such
request, as Debtor may deem advisable, and may
grant, in the ordinary course of Debtor's business,
to any party obligated on any of the Accounts
Collateral, any rebate, refund or adjustment to
which such party may be lawfully entitled, and may
accept, in connection therewith, the lawful return
of goods, the sale or lease or which shall have
given rise to such Accounts Collateral. Bank may,
however, at any time after and during the
continuance of an Event of Default and at Debtor's
expense, notify any parties obligated on any of the
Accounts Collateral to make payment directly to
Bank of any amounts due or to become due thereunder
and enforce collection of any of the Accounts
Collateral by suit or otherwise and surrender,
release or exchange all or any part thereof, or
compromise, extend or renew same for any period.
13. Undertakings by Bank. Bank may from time to time, at its sole
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option, and with notice to Debtor (except that, in the case of an Event of
Default and the continuation thereof, no notice to Debtor is required),
perform any undertaking of Debtor hereunder which Debtor shall fail to perform
and take any other action which Bank deems necessary for the maintenance or
preservation of any of the Collateral or the interest of Bank therein
(including, without limitation, the discharge of taxes or liens of any kind
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against the Collateral or the procurement of insurance) and Debtor agrees to
forthwith reimburse Bank, on demand, for all expenses of Bank in connection
with the foregoing, together with interest thereon at a per annum rate equal
to the highest rate of interest applicable to any of the Obligations secured
hereby, until reimbursed by Debtor and all amounts not so reimbursed shall be
added to and become a part of the Obligations secured hereby. Bank may, for
the foregoing purposes, act in its own name or that of Debtor and may also act
for the purpose of adjusting or settling any policy of insurance on the
Collateral, or endorsing any draft received in connection therewith. For all
of the foregoing purposes, Debtor hereby grants to any officer of Bank its
power of attorney, irrevocable so long as any of the Obligations secured
hereby shall be outstanding.
14. Warranties Correct. Debtor hereby warrants and represents that
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all financial statements, certificates and schedules heretofore and hereafter
delivered to Bank by or on behalf of Debtor, and any statement and data
submitted in writing to Bank in connection with this Security Agreement or any
Obligations of Debtor to Bank, are true and correct in all material respects
and fairly present the financial condition of Debtor for the periods involved.
15. Identification of Collateral. Upon request of Bank, Debtor will
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stamp on its records concerning the Collateral, a notation, in form reasonably
satisfactory to Bank, of the security interest of Bank hereunder, and when
requested by Bank, Debtor shall further affix to the Collateral such signs or
labels as shall be reasonably satisfactory to Bank to indicate the security
interest of Bank in the Collateral. Upon request of Bank at any time, Debtor
will promptly deliver to Bank such lists or copies of the Collateral as may be
required by the terms and conditions of the Credit Agreement and will deliver
to Bank, promptly upon receipt, all proceeds of Collateral received by Debtor,
including proceeds of the Accounts Collateral referred to above, in the exact
form in which they are received. To protect Bank's rights hereunder, Debtor
will assign or endorse proceeds to Bank as Bank may request, and hereby
constitutes any officer or employee of Bank its true and lawful
attorney-in-fact, with full power to endorse the name of Debtor upon any
invoice, freight or express ▇▇▇▇ or ▇▇▇▇ of lading relating to any such
accounts, upon drafts against account debtors and assignments and
verifications of accounts and notices to account debtors, upon any and every
remittance or instrument of payment, including checks, drafts and money
orders, and in whatever form received, and to do and perform all other acts
and things necessary, proper and requisite to carry out the intent of this
Security Agreement. The power herein granted shall be deemed to be coupled
with an interest and shall not be revoked by Debtor until Bank has been paid
all Obligations due it, including all proper expenses, with interest. All such
items received by Bank for the Collateral shall be deposited to the credit of
Debtor in an account maintained at Bank, as security for the payment of the
Obligations as set forth in the Credit Agreement, and shall be applied in
accordance with the terms and conditions of the Credit Agreement.
16. Account Debtors. With respect to the Accounts Collateral, Bank
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may at any time following an Event of Default but only during the continuance
thereof, notify account debtors that the accounts have been assigned to Bank
and shall be paid to Bank. Upon request of Bank at any time following an Event
of Default but only during the continuance thereof, Debtor will so notify such
account debtors and will indicate on all invoices to such account debtors that
the accounts are payable directly to Bank.
17. Accounts Collateral Warranties. Debtor warrants and represents
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with respect to the Accounts Collateral that:
(a) All accounts are due and payable in cash not more
than forty-five (45) days from the date of the
invoice evidencing the account;
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(b) The accounts are genuine in all respects and are as
purported and to Debtor's knowledge the account
debtor has the capacity to enter into the
transaction;
(c) The accounts have not been previously assigned or
encumbered;
(d) Debtor has full right and authority to assign them;
(e) If arising from the sale or lease of goods, such
goods have been shipped or delivered to the account
debtor;
(f) To Debtor's knowledge, the accounts are valid,
legally enforceable obligation of the account
debtor thereunder and are not subject to any
offset, counterclaim or other defense on the part
of such account debtor or to any claim on the part
of such account debtor denying liability thereunder
in whole or in part;
(g) No partial payment not shown upon the accounts has
been made by anyone;
(h) To Debtor's knowledge, the accounts are enforceable
according to terms; and
(i) The accounts are evidenced by invoices, dated not
later than three (3) days after shipment or
performance rendered to such account debtor and are
not evidenced by any instrument or chattel paper.
18. Default. Debtor shall be in default under this Security Agreement
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upon the occurrence of an Event of Default.
19. Remedies. Upon the occurrence of an Event of Default, Bank may at
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its option, without notice or demand (except as may be set forth in the Credit
Agreement or as may otherwise be required by applicable law), declare
Obligations secured hereby immediately due and payable and Bank, upon the
occurrence of any such Event of Default, may exercise any and all of the
rights and remedies of a secured party under the Uniform Commercial Code of
Arkansas, then in effect. Bank may take immediate possession of the Collateral
or any part thereof wherever the same may be found, and for said purposes may,
and is hereby appointed Debtor's agent and authorized by Debtor to, enter
Debtor's premises for the purpose of removing, assembling or taking possession
of the Collateral without liability for trespass or any other right of action
by reason of taking possession of said Collateral. Whenever the Collateral is
in Bank's possession, Bank may use and operate same as appropriate for the
purpose of protecting Bank's interest with respect thereto. In addition, if
any Collateral shall require rebuilding, repairing, maintenance, preparation,
or is in process or other unfinished state, Bank shall have the right at its
option to do such rebuilding, repairing preparation, processing or completion
of manufacturing on or off Debtor's premises, for the purpose of putting the
Collateral in such saleable form as Bank shall deem appropriate. Bank may
require Debtor, at Debtor's expense, to assemble the Collateral and make it
available to Bank at a place to be designated by Bank. Debtor agrees to pay
all costs of Bank in the collection of the Obligations and enforcement of
rights hereunder, including reasonable attorney's fees and legal expense, and
of any repairs to any realty or other property to which any of the Collateral
may be affixed or be a part. Any notice of any sale, lease, or other
disposition, or other intended action by Bank shall be deemed reasonable if it
is in writing and deposited in the United States mail at least ten (10) days
in advance of the intended disposition or other intended action or, with
respect to a private sale, at least ten (10) days in advance of the date after
which a private sale or sales shall occur, first class postage prepaid,
addressed to Debtor at the address set forth in Section 4 hereof or to any
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other address of Debtor appearing on the records of Bank. At any sale, the
Bank may specifically disclaim any warranties including of title or the like.
The Bank may comply with any applicable state or federal law requirements
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in connection with a disposition of the Collateral and compliance will not be
considered adversely to affect the commercial reasonableness of any sale or
disposition of the Collateral. Debtor waives all rights to require any
marshalling of assets.
Bank shall also have the right to apply for and have a receiver
appointed by a court of competent jurisdiction to enforce its rights and
remedies hereunder in order to mange, protect and preserve the Collateral,
continue the operation of the business of Debtor, and to collect all revenues
and profits thereof and apply the same to the payment of (i) all expenses and
other charges of such receivership, including the compensation of the
receiver, and (ii) the Obligations secured hereby until a sale or other
disposition of such Collateral shall be finally made and consummated.
Bank may notify any and all parties obligated on any of the
Collateral that the Collateral has been assigned to Bank and that all payments
thereon are to be made directly to Bank. Bank may settle, compromise or
release, on terms acceptable to Bank, in whole or in part, any amounts owing
on such Collateral; ▇▇▇ to enforce payments and prosecute any action or
proceeding with respect to the Collateral in its own name or the name of
Debtor; and extend the time of payment, make allowance and adjustments, and
issue credits in its own name or the name of Debtor.
The proceeds of any sale shall be applied in the following order:
first, to pay all costs and expenses of every kind for care, safekeeping,
collection, sale, delivery or otherwise (including expenses incurred in the
protection of Bank's title to or lien upon or right in any such property,
expenses for legal services of any kind in connection therewith or in making
any such sale or sales, insurance, commission for sale and guaranty), then to
interest on Obligations of Debtor to Bank; then to the principal thereof,
whether or not such Obligations are due or accrued. Any remaining surplus
shall be paid to whomever shall be legally entitled thereto. Application of
proceeds as between particular Obligations to Bank shall be in the absolute
and sole discretion of Bank. If the proceeds of any such sales are
insufficient to pay Obligations of Debtor to Bank, Debtor shall remain liable
for the deficiency.
20. Inspection. Subject to the relevant provisions of the Credit
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Agreement, Bank or its nominee shall have the privilege at any time, upon
request, of inspecting during reasonable business hours any of the business
properties or premises of Debtor and the books and records of Debtor relating
not only to the Collateral, or the processing or collecting thereof, but also
those relating to its general business affairs and financial condition of
Debtor. Debtor further agrees from time to time to furnish such other reports,
data and financial statements, in respect of its business and financial
condition, as Bank may reasonably require.
21. The Bank's Duties. The powers conferred on the Bank hereunder are
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solely to protect its interest in the Collateral and shall not impose any duty
upon it to exercise any such powers. Unless otherwise required by law, the
Debtor has the risk of loss of the Collateral, and the Bank shall have no duty
as to any Collateral or as to the taking of any necessary steps to preserve
the rights against other parties or any other rights pertaining to any
Collateral.
22. Miscellaneous. Debtor and Bank further agree as follows:
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(a) Governing Law. This Security Agreement shall be
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governed by and construed in accordance with the
laws of the State of Missouri without regard to
conflict of laws principles.
(b) Non-Waiver. Waiver of or acquiescence by Bank in
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any default by Debtor, or failure of Bank to insist
upon strict performance by Debtor of any
warranties, agreements or other obligations
contained in this Security Agreement shall not
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constitute a waiver of any subsequent or other
default, failure or waiver of strict performance,
whether similar or dissimilar.
(c) Modifications. No modification of any provision of
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this Security Agreement, no approvals required from
Bank and no consent by Bank to any departure
therefrom by Debtor shall be effective unless such
modification, approval or consent shall be in
writing and signed by a duly authorized officer of
Bank, and the same shall then be effective only for
the period and on the conditions and for the
specific instances and purposes specified in such
writing. No notice to or demand on Debtor in any
case shall entitle Debtor to any other or further
notice or demand in similar or other circumstances.
(d) Severability. Wherever possible, each provision of
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this Security Agreement shall be interpreted in
such manner as to be effective and valid under
applicable law, but if any provision of this
Security Agreement shall be prohibited by or
invalid under applicable law, such provision shall
be ineffective only to the extent of such
prohibition or invalidity, without invalidating the
remainder of such provision or the remaining
provisions of this Security Agreement.
(e) Notices. All notices and other communications
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provided for herein shall, unless otherwise stated
herein, be in writing and shall be personally
delivered or sent by certified mail, postage
prepaid, by prepaid overnight nationally recognized
courier, or by facsimile, to the intended party at
the address or facsimile number of such party set
forth as follows:
to the Bank:
Regions Bank
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇ ▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President
Facsimile No: (▇▇▇) ▇▇▇-▇▇▇▇
and with a copy to:
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Facsimile No: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Debtor:
FutureFuel Chemical Company
Attn: Chief Financial Officer
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▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
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With a copy to:
FutureFuel Corp.
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Executive Vice President
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No: (▇▇▇) ▇▇▇-▇▇▇▇
or at such other address or facsimile number as shall be
designated by such party in a written notice to the other
parties hereto. All such notices and communications shall be
effective (a) if personally delivered, when delivered, (b)
if sent by certified mail, three (3) days after having been
deposited in the mail, postage prepaid, (c) if sent by
overnight courier, one business day after having been given
to such courier, or (d) if transmitted by facsimile, when
sent.
(f) Rights and Remedies Cumulative. The rights and
------------------------------
remedies of Bank under this Security Agreement are
cumulative and are not in lieu of, but are in
addition to any other rights or remedies which Bank
shall have under this Security Agreement or any
other instrument, or at law or in equity. No course
of dealing between Bank and Debtor or any failure
or delay on the part of Bank in exercising any
rights or remedies hereunder shall operate as a
waiver of any rights or remedies of Bank and no
single or partial exercise of any rights or
remedies hereunder shall operate as a waiver or
preclude the exercise of any other rights or
remedies hereunder.
(g) Security Interest and Pledge Absolute. All rights,
-------------------------------------
including the security interest of Bank granted
hereunder, and all obligations of Debtor hereunder,
shall be absolute and unconditional irrespective
of:
(i) any lack of validity or enforceability of
the Obligations or any other agreement or
instrument relating thereto:
(ii) any change in the time, manner or place of
payment of, or in any other term of, all or
any of the Obligations, or any other
amendment or waiver of or any consent to any
departure from the Obligations or any
agreement or instrument relating thereto; or
(iii) any exchange, release or non-perfection of
any other collateral, or any release or
amendment or waiver of or consent to
departure from any guaranty, for all or any
of the Obligations.
(h) Costs of Enforcement. In the event that Bank shall
--------------------
retain or engage an attorney or attorneys to
collect or enforce or protect its interests with
respect to this Security Agreement or any
instrument or document delivered pursuant to this
Security Agreement, including the representation of
Bank in connection with any bankruptcy,
reorganization, receivership or any other action
affecting creditor's rights, and regardless of
whether a suit or action is commenced, Debtor shall
pay all of the costs and expenses of such
collection, enforcement or protection, including
reasonable attorneys' fees, and Bank may take
judgment for all such amounts.
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(i) Successors and Assigns. This Security Agreement
----------------------
shall be binding upon and inure to the benefit of
Bank and its successors and assigns Debtor and its
heirs, successors and permitted assigns.
(j) Assignment; Sale of Interest. Debtor hereby
----------------------------
consents to Bank's participation, sale, assignment,
transfer or other disposition, at any time or times
hereafter, of this Security Agreement, or of any
portion hereof or thereof, including, without
limitation, Bank's rights, title, interests,
remedies, powers and duties hereunder; provided
that Bank agrees to give Debtor notice of its
intent to participate, sell, assign or transfer
this Security Agreement, along with notice of any
such intended participant, purchaser, assignee or
transferee.
(k) Fees and Expenses. Debtor shall pay all reasonable
-----------------
out-of-pocket costs and expenses, including
attorneys' fees and expenses, incurred by Bank in
connection with the preparation of this Security
Agreement and any document or instrument delivered
pursuant to or in connection with this Security
Agreement and all related documentation, recording
or filing fees. Debtor shall also pay all
reasonable like costs and expenses incurred by Bank
in connection with any amendments, waivers,
renewals or modifications of or made pursuant to
this Security Agreement or any document or
instrument delivered pursuant to or in connection
with this Security Agreement and all other related
documentation.
(l) Reinstatement of Obligations. Debtor expressly
----------------------------
agrees that to the extent a payment or payments to
Bank, or any part thereof, are subsequently
invalidated, declared to be void or voidable, set
aside and are required to be repaid to a trustee,
custodian, receiver or any other party under any
bankruptcy act, state or federal law, common law or
equitable cause, then to the extent of such payment
or repayment, the obligation or part thereof
intended to be satisfied and any collateral given
therefore including this Agreement shall be revived
and continued in full force and effect as if said
payment had not been made.
(m) Financing Statement. At the option of Bank, this
-------------------
Security Agreement, or a carbon, photographic or
other reproduction of this Security Agreement or of
any Uniform Commercial Code financing statement
covering the Collateral or any portion thereof,
shall be sufficient as a Uniform Commercial Code
financing statement and may be filed as such.
(n) Capitalized Terms. Capitalized terms used and not
-----------------
defined herein shall have the meanings given to
them in the Uniform Commercial Code as adopted and
in force in the State of Arkansas, as from time to
time amended.
(o) Controlling Provisions. If any item of Collateral
----------------------
hereunder also constitutes collateral granted to
Bank under any other mortgage, deed of trust,
agreement or instrument, in the event of any
conflict between the provisions under this Security
Agreement and those under such other mortgage,
agreement or instrument relating to such
Collateral, the provision or provisions selected by
Bank shall control with respect to such Collateral.
(p) Setoff. In addition to any rights now or hereafter
------
granted under the provisions of any applicable law,
rule or regulation and, not by way of limitation of
any such rights, upon the occurrence of (a) any
Event of Default, or (b) any event which
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with the lapse of time or the giving of notice, or
both, would constitute an Event of Default, Bank is
hereby authorized by Debtor, at any time or from
time to time, without notice to Debtor or to any
other person, any such notice being hereby
expressly waived, to exercise the right of setoff
that is granted to Bank pursuant to the terms and
conditions of the Credit Agreement.
(q) Consent to Forum. DEBTOR HEREBY CONSENTS TO THE
----------------
JURISDICTION OF ANY STATE COURT LOCATED WITHIN ST.
LOUIS COUNTY, MISSOURI OR FEDERAL COURT IN THE
EASTERN DISTRICT OF MISSOURI, EASTERN DIVISION.
DEBTOR WAIVES ANY OBJECTION TO JURISDICTION AND
VENUE OF ANY ACTION INSTITUTED AGAINST IT AS
PROVIDED HEREIN AND AGREES NOT TO ASSERT ANY
DEFENSE BASED ON LACK OF JURISDICTION OR VENUE.
DEBTOR FURTHER AGREES NOT TO ASSERT AGAINST BANK
(EXCEPT BY WAY OF A DEFENSE OR COUNTERCLAIM IN A
PROCEEDING INITIATED BY BANK) ANY CLAIM OR OTHER
ASSERTION OF LIABILITY WITH RESPECT TO THIS
SECURITY AGREEMENT, BANK'S CONDUCT OR OTHERWISE IN
ANY JURISDICTION OTHER THAN THE FOREGOING
JURISDICTIONS.
(r) Waiver of Jury Trial. DEBTOR HEREBY WAIVES ANY
--------------------
RIGHT TO TRIAL BY JURY (WHICH BANK ALSO WAIVES) IN
ANY ACTION, SUIT, PROCEEDING OR COUNTERCLAIM OF ANY
KIND ARISING OUT OF OR RELATING TO THIS SECURITY
AGREEMENT, THE OBLIGATIONS OF DEBTOR HEREUNDER OR
BANK'S CONDUCT IN RESPECT OF ANY OF THE FOREGOING.
(s) Mo.Rev.Stat. Section 432.047 Statement. The following
--------------------------------------
notice is given pursuant to Section 432.047 of the
Missouri Revised Statutes; nothing contained in
such notice shall be deemed to limit or modify the
terms of this Agreement: "ORAL AGREEMENTS OR
COMMITMENTS TO LOAN MONEY, EXTEND CREDIT OR TO
FOREBEAR FROM ENFORCING REPAYMENT OF A DEBT
INCLUDING PROMISES TO EXTEND OR RENEW SUCH DEBT ARE
NOT ENFORCEABLE REGARDLESS OF THE LEGAL THEORY UPON
WHICH IT IS BASED, THAT IS IN ANY WAY RELATED TO
THE CREDIT AGREEMENT. TO PROTECT YOU (COMPANY) AND
US (CREDITOR) FROM MISUNDERSTANDING OR
DISAPPOINTMENT, ANY AGREEMENTS WE REACH COVERING
SUCH MATTERS ARE CONTAINED IN THIS WRITING, WHICH
IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE
AGREEMENT BETWEEN US, EXCEPT AS WE MAY LATER AGREE
IN WRITING TO MODIFY IT."
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SIGNATURE PAGE FOLLOWS
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IN WITNESS WHEREOF, this Security Agreement has been executed and
delivered by Debtor this 14th day of March, 2007.
FUTUREFUEL CHEMICAL COMPANY,
a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Executive Vice President
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