THIRD PARTY SECURITY AGREEMENT
Exhibit
4.6
This Agreement is made this 1st day of
October, 2008, by and between _________________, a
____________ corporation (“Debtor”) whose business address is
___________________________ and CHOICE FINANCIAL
GROUP, a North Dakota
state bank (“Secured Party”) whose address is ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇.
WHEREAS, Heartland, Inc., a
Maryland corporation (“Borrower”) is obligated to Secured Party under a
Promissory Note (the “Note”) in the original principal amount of $3,250,000.00
of even date herewith issued pursuant to that certain Loan Agreement and other
agreements dated of even date herewith by and among Borrower and Secured Party
(collectively, the “Loan Documents”); and
WHEREAS, as a condition
precedent to advancing any sums under the Note, Secured Party has required
Debtor’s execution of this Agreement.
WHEREAS, Debtor is an
affiliate of Borrower and will benefit from the loan from Secured Party to
Borrower; and
NOW, THEREFORE, in
consideration of the premises and the mutual undertakings herein contained, and
for other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties hereto agree as follows:
ARTICLE
1.
SECURITY
INTEREST AND COLLATERAL
To secure the payment and performance
of each and every debt, liability, and obligation of every type, and description
which Borrower may now, or at any time hereafter owe to Secured Party, all such
debts, liabilities, and obligations herein collectively referred to as the
“Obligations,” Debtor hereby grants Secured Party a security interest (the
“Security Interest”) in all of Debtor’s right, title and interest in and to the
following property, whether now owned or hereafter acquired (the
“Collateral”):
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A.
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All
of Debtor’s present and future accounts, receivables, contract rights,
rents, instruments, unearned insurance premiums, chattel paper, deposits,
deposit accounts, documents, tax refunds, proceeds from insurance and
condemnation relating to any of the property of Debtor in which Secured
Party has a security interest, all forms of obligations whatsoever owing
to Debtor together with all right, title, security and guaranties with
respect to each receivable or obligation owed to Debtor (the
“Accounts”);
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B.
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All
of Debtor’s present and future inventory, wherever located, including, but
not limited to all merchandise, raw materials, parts, supplies, work in
process, and finished products, intended for sale, rent, or lease, and all
packaging materials of every kind and description now or at any time
hereafter owned by and in the custody or possession, actual or
constructive, of Debtor, including such inventory as is temporarily out of
custody or possession of Debtor and including any returns upon any
accounts or other proceeds, including insurance proceeds, resulting from
the sale or disposition of any of the foregoing (the
“Inventory”);
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C.
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All
of Debtor’s present and future supplies, furniture, fixtures, machinery
and equipment, wherever located, including, without limitation, data
processing, computer equipment, software, computer software systems,
office machinery, furniture, material handling equipment, conveyors,
tools, attachments, accessories, automobiles, automotive equipment,
trailers, trucks, forklifts, motor vehicles, and other equipment of every
kind and nature, all whether now owned or hereafter acquired, and wherever
situated, together with all additions and accessions thereto, replacements
therefor, together with all maintenance and repair parts and supplies
therefor, all substitutes for any of the foregoing and all manuals,
drawings, instructions, warranties and rights with respect thereto, and
all proceeds thereof, of whatever kind, including insurance proceeds and
condensation awards (the
“Equipment”);
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D.
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All
of Debtor’s general intangibles and intellectual property wherever
located, whether now owned or hereafter acquired, created or arising,
including without limitation all choses in action, customer lists,
business records, corporate or other business records, commercial tort
claims, sales literature, name plates, catalogs, dealer contracts,
supplier contracts, distributor agreements, confidential information,
consulting agreements, engineering contracts, and such other assets as
uniquely reflect the goodwill of the business of Debtor, applications for
patents, patents, copyrights, trademarks, trade secrets, service marks,
inventions, methods, processes, research and development, good will, trade
names, customer lists, permits and franchises and Debtor’s name (the
“General Intangibles and Intellectual
Property”);
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E.
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All
present and future cash, certificates of deposit, investment property,
securities (whether certificated or uncertificated), security
entitlements, securities accounts, commodity contracts, commodity
accounts, membership interests, financial rights, governance rights,
brokerage accounts, bank accounts, letters of credit, and all other assets
of any type or nature; and
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F.
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All
additions, accessions, increases, parts, fittings, accessories,
replacements, substitutions, betterments, repairs and proceeds of or to
any or all of the foregoing, including, without limitation, all insurance
proceeds and condemnation awards.
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Upon default pursuant to the provisions
of this Agreement, Secured Party becomes entitled to all remedies set forth
herein or otherwise provided to secured parties by the Uniform Commercial Code
as adopted in the State of North Dakota.
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ARTICLE
2.
REPRESENTATIONS,
WARRANTIES AND AGREEMENTS
Debtor represents, warrants and agrees
that:
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2.1
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Debtor
is a Virginia corporation and will not change its state of incorporation
without the prior written consent of the Secured
Party.
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2.2
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The
Collateral will be used solely for: Business
purposes.
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2.3
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Debtor’s
chief executive office is located at
___________________________.
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2.4
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Debtor
has (or will have at the time Debtor acquires rights in Collateral
hereafter arising) absolute title to each item of Collateral free and
clear of all security interests, liens, and encumbrances, except this
Security Interest, and will defend the Collateral against all claims or
demands of all persons other than Secured Party. Debtor will
not sell or otherwise dispose of the Collateral or any interest therein
without the prior written consent of Secured
Party.
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2.5
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Debtor
will not permit any tangible Collateral to be located in any state (and,
if county filing is required, in any county) in which a financing
statement covering such Collateral is required to be, but has not in fact
been, filed in order to perfect the Security
Interest.
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2.6
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Each
right to payment and each instrument, document, chattel paper, and other
agreement constituting or evidencing Collateral is (or will be when
arising or issued) the valid, genuine, and legally enforceable obligation,
subject to no defense, no set-off, or counterclaim of the account debtors
or other obligor named therein. Debtor will neither agree to
any material modification or amendment nor agree to any cancellation of
any such obligation without Secured Party’s prior written consent, and
will not subordinate any such right to payment to claims of other
creditors of such account debtors or other
obligor.
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2.7
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This
Agreement has been duly and validly authorized by all necessary company
action of Debtor.
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2.8
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Debtor
will:
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A.
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Keep
all tangible Collateral in good repair, working order, and condition,
normal depreciation excepted, and will, from time to time, replace any
worn, broken, or defective parts
thereof,
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B.
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Promptly
pay all taxes and other governmental charges levied or assessed upon or
against any Collateral or upon or against the creation, perfection, or
continuance of the Security
Interest;
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C.
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Keep
all Collateral free and clear of all security interests, liens, and
encumbrances except this Security
Interest;
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D.
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At
all reasonable times, permit Secured Party or its representative to
examine or inspect any Collateral wherever located, and to examine,
inspect, and copy Debtor’s books and records pertaining to the Collateral
and its business and financial
condition;
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E.
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Keep
accurate and complete records pertaining to the Collateral and pertaining
to Debtor’s business and financial condition and submit to Secured Party
such periodic reports concerning the Collateral as Secured Party may from
time to time reasonably request;
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F.
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Promptly
notify Secured Party of material loss of or material damage to any
Collateral or of any adverse change, known to Debtor, in the amount of
Five Thousand and 00/100 Dollars ($5,000) or
more;
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G.
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If
Secured Party at any time so requests after the occurrence of an Event of
Default, promptly deliver to Secured Party any instrument, document, or
chattel paper constituting Collateral, duly endorsed or assigned by
Debtor;
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H.
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At
all times keep all tangible Collateral insured against risks of fire
(including so-called extended coverage), theft, and such other risks and
in such amounts as Secured Party may reasonably request, with any loss
payable to Secured Party to the extent of its
interest;
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2
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I.
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From
time to time consent to the filing of financing statements in connection
with the Collateral in order to perfect the Security Interest and execute
such documents as may be required to have the Security Interest properly
noted on a certificate of title, if
applicable;
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J.
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Pay
when due or reimburse Secured Party on demand for all costs of collection
of any of the Obligations and all other out-of-pocket expenses (including
in each case all attorneys’ fees) incurred by Secured Party in connection
with the creation, perfection, satisfaction, protection, defense, or
enforcement of the Security Interest or the creation, continuance,
protection, defense, or enforcement of this Agreement or any or all of the
Obligations, including expenses incurred in any litigation or bankruptcy
or insolvency proceedings;
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K.
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Execute,
deliver, or endorse any and all instruments, documents, assignments,
security agreements, and other agreements and writings which Secured Party
may at any time reasonably request in order to secure, protect, perfect,
or enforce the Security Interest and Secured Party’s rights under this
Agreement;
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L.
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Not
use or keep any Collateral, or permit it to be used or kept, for any
unlawful purpose or in violation of any federal, state, or local law,
statute, or ordinance;
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M.
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Permit
Secured Party at any time and from time to time to send requests after the
occurrence of an Event of Default to account debtors or other obligors for
verification of amounts owed to Debtor;
and
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N.
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Comply
with all permits issued by any federal, state or local governmental agency
or authority in connection with the Collateral or Debtor’s
operations.
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If Debtor at any time fails to perform
or observe any agreement contained herein, Secured Party may (but need not)
after 15 days prior written notice to Debtor and failure of Debtor to remedy
within said 15 day period, or longer if reasonably required to remedy, however,
in no event shall the total remedy period exceed 45 days from date of notice,
perform or observe such agreement on behalf, and in the name, place, and stead,
of Debtor (or, at Secured Party’s option, in Secured Party’s own name) and may
(but need not) take any and all other actions which Secured Party may reasonably
deem necessary to cure or correct such failure (including without limitation,
the payment of taxes, the satisfaction of security interests, liens, or
encumbrances, the performance of obligations under contracts or agreements with
account debtors or other obligors, the procurement and maintenance of insurance,
the filing of financing statements, the endorsements of instruments, and the
procurement of repairs, transportation, or insurance); and, except to the extent
that the effect of such payment would be to render any loan or forbearance of
money usurious or otherwise illegal under any applicable law, Debtor shall
thereupon pay Secured Party, on demand, the amount of all moneys expended and
all costs and expenses (including reasonable attorneys’ fees) incurred by
Secured Party in connection with or as a result of Secured Party’s performing or
observing such agreements or taking such actions, together with interest thereon
from the date expended or incurred by Secured Party at the rate set forth in the
Note. To facilitate the performance or observance by Secured Party of
such agreements of Debtor, Debtor hereby irrevocably appoints (which appointment
is coupled with an interest) Secured Party, or its delegate, as the
attorney-in-fact of Debtor with the right (but not the duty) from time to time
to consent, create, prepare, complete, execute, deliver, endorse, or file, in
the name of and on behalf of Debtor, any and all instruments, documents,
financing statements, applications for insurance, and other agreements and
writings required to be obtained, executed, delivered, or endorsed by Debtor
hereunder.
ARTICLE
3.
COLLECTION
RIGHTS OF SECURED PARTY
Secured Party may at any time after the
occurrence of any Event of Default notify any account debtors, or any other
person obligated to pay any amount due, that such chattel paper, account, or
other right to payment has been assigned or transferred to Secured Party for
security and shall be paid directly to Secured Party. If Secured
Party so requests at any time after an Event of Default, Debtor will notify such
account debtors and other obligors in writing and will indicate on all invoices
to such account debtors or other obligors that the payment due is payable
directly to Secured Party. At any time after Secured Party gives such
notice to an account debtor or other obligor, Secured Party may (but need not),
in its own name or in Debtor’s name, demand, ▇▇▇ for, collect, or receive any
money or property at any time payable or receivable on account of, or securing,
any such chattel paper, account, or other right to payment, or grant any
extension to, make any compromise or settlement with, or otherwise agree to
waive, modify, amend, or change the obligations (including collateral
obligations) of any such account debtor or other obligor.
ARTICLE
4.
ASSIGNMENT
OF INSURANCE
Debtor hereby assigns to Secured Party
as additional security for the payment of the Obligations, right to any and all
moneys (including but not limited to proceeds of insurance and refunds of
unearned premiums) due or to become due under, and all other rights of Debtor
under or with respect to, any and all policies of insurance covering the
Collateral, and Debtor hereby directs the issuer of any such policy to show
Secured Party as loss payee thereon and to pay any such moneys directly to
Secured Party and not jointly to Secured Party and Debtor. After the
occurrence of an Event of Default, Secured Party may (but need not), in its own
name or in Debtor’s name, execute and deliver proofs of claim, receive all
moneys, endorse checks, and other instruments representing payment of such
moneys, and adjust, litigate, compromise, or release any claim against the
issuer of any such policy.
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ARTICLE
5.
EVENTS
OF DEFAULT
Each and any one of the following
occurrences shall constitute an event of default under this Agreement (herein
called “Event of Default”):
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A.
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Any
failure to pay when due according to the terms of the Note and/or the
other Loan Documents, after the expiration of any applicable cure period;
or
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B.
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Any
other default shall occur in the performance of any agreement, term,
provision, condition, or covenant required to be performed or observed
under the Note, the Loan Documents, after the expiration of any applicable
cure period; or
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C.
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If
Debtor fails to duly and punctually perform or observe any of covenants or
agreements contained herein and such default shall continue for a period
of 15 days after notice to Debtor of default, provided, however, that
despite Debtor’s best efforts the default may not reasonably be cured
within that period, Debtor shall have an additional 30 day period to cure,
but in no event shall the total cure period exceed 45 days;
or
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D.
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If
Debtor shall make an assignment for the benefit of its creditors, or shall
be unable to pay its debts as they become due, or shall file a petition in
bankruptcy, or shall be adjudicated a bankrupt or insolvent, or shall file
a petition seeking any reorganization, dissolution, liquidation,
arrangement, composition, readjustment or similar relief under any present
or future bankruptcy or insolvency statute, law or regulation or shall
file an answer admitting to or not contesting the material allegations of
a petition filed against it in such proceedings;
or
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E.
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If
Debtor, Borrower or any guarantor of the indebtedness evidenced by the
Note or the Obligations shall default in the performance of any agreement,
whether now existing or hereafter arising, with the Secured Party, and
such default is not cured within the applicable cure period, if
any.
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ARTICLE
6.
REMEDIES
UPON EVENT OF DEFAULT
Upon the occurrence of an Event of
Default hereunder and at any time thereafter, Secured Party may exercise any one
or more of the following rights and remedies:
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A.
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Exercise
and enforce any or all rights and remedies available upon default to a
secured party under the Uniform Commercial Code, as adopted in the State
of North Dakota, including but not limited to, the right to take
possession of any Collateral, proceeding without judicial process or by
judicial process, and the right to sell, lease, or otherwise dispose of
any or all of the Collateral, and in connection therewith, Secured Party
may require Debtor to assemble the Collateral and make it available to
Secured Party at a place to be designated by Secured Party which is
reasonably convenient to both parties, and if notice to Debtor of any
intended disposition of Collateral or any other intended action is
required by law in a particular instance, such notice shall be deemed
commercially reasonable if given (in the manner specified herein) at least
ten (10) calendar days prior to the date of intended disposition or other
action).
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B.
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Exercise
or enforce any and all other rights or remedies available to Secured Party
by law or agreement against the Collateral, against Debtor, or against any
other person or property.
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Secured Party is hereby granted a
non-exclusive, world-wide, and royalty-free license to use or otherwise exploit
all tradenames, trademarks, trade secrets, franchises, copyrights, and patents
of Debtor that Secured Party deems necessary or appropriate to the disposition
of any Collateral.
ARTICLE
7.
OTHER
PERSONAL PROPERTY
Unless at the time Secured Party takes
possession of any tangible Collateral, or within seven (7) days thereafter,
Debtor gives written notice to Secured Party of the existence of any goods,
papers, or other property of Debtor, not affixed to or constituting a part of
such Collateral, but which are located or found upon or within such Collateral,
describing such property, Secured Party shall not be responsible or liable to
Debtor for any action taken or omitted by or on behalf of Secured Party with
respect to such property without actual knowledge of the existence of any such
property or without actual knowledge that it was located or to be found upon or
within such Collateral.
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ARTICLE
8.
MISCELLANEOUS
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8.1
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No
delay on the part of Secured Party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any right, power or privilege hereunder
preclude other or further exercise thereof or the exercise of any other
right, power or privilege. The rights and remedies herein
specified are cumulative and are not exclusive of any rights or remedies
which Secured Party would otherwise have. No amendment,
modification or waiver of, or consent with respect to any provision hereof
shall in any event be effective against Secured Party unless the same
shall be in writing and signed by Secured
Party.
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8.2
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The
rights, options, powers and remedies granted in this Agreement shall
extend to Secured Party and to its participating lenders, successors and
assigns, and shall be binding upon Debtor and its successors and assigns
and shall be applicable hereto and to all renewals and/or extensions
hereof.
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8.3
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Debtor
agrees to pay all fees and out-of-pocket disbursements incurred by Secured
Party in connection with the enforcement of this Agreement, including all
costs of collection and including, without limitation, reasonable fees and
disbursements of attorneys for Secured Party, or arising from or relating
to any bankruptcy or insolvency proceeding by or against the
Debtor.
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8.4
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Any
notice, request or demand, document, consent or other instrument to be
given, sent or furnished by any party to any other party shall be in
writing and personally delivered or sent by United States regular or
express mail or other similar types of overnight mail
delivery. Notice shall be deemed received: (i) two (2) business
days after the same is deposited in the United States post office box, via
regular mail, postage prepaid; (ii) one (1) business day after the same is
deposited in a United States post office for overnight mail delivery,
postage prepaid or deposited in a similar type of overnight mail delivery;
or (iii) on the same day of personal delivery; if properly addressed to
Secured Party or Debtor, as applicable, at the address above, or such
other addresses as Secured Party or Debtor may from time to time specify
in writing.
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8.5
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This
Agreement shall be governed by the laws of the State of North
Dakota. The parties consent to the exclusive
jurisdiction of the state and federal courts located in the State of North
Dakota in connection with any controversy related in any way to this
Agreement, and waive any argument that venue in such forum is not
convenient.
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8.6
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Debtor
shall do all things and deliver all instruments reasonably requested by
Secured Party to protect, perfect or enforce any security interest given
to Secured Party hereunder. Debtor hereby authorizes Secured
Party to file a financing statement, file a copy or duplicate original of
this document or other document or instrument that Secured Party may
require to perfect, protect or establish a lien or security interest
granted to Secured Party hereunder or any of the documents and instruments
delivered to Secured Party pursuant to this
Agreement.
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8.7
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Secured
Party is not a partner or joint venturer with Debtor and Debtor agrees to
defend, indemnify and hold Secured Party harmless from any and all damages
resulting from such a construction or alleged construction of the
relationship between the parties.
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8.8
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DEBTOR ACKNOWLEDGES THAT THE RIGHT TO
TRIAL BY JURY IS A CONSTITUTIONAL ONE, BUT THAT IT MAY BE WAIVED AND THAT
THE TIME AND EXPENSE REQUIRED FOR TRIAL BY A JURY MAY EXCEED THE TIME AND
EXPENSE REQUIRED FOR TRIAL WITHOUT A JURY. DEBTOR, AFTER
CONSULTING (OR HAVING HAD THE OPPORTUNITY TO CONSULT) WITH COUNSEL OF
DEBTOR’S CHOICE, KNOWINGLY AND VOLUNTARILY, AND FOR THE MUTUAL BENEFIT OF
SECURED PARTY AND DEBTOR, WAIVES ANY RIGHT TO TRIAL BY JURY IN THE EVENT
OF LITIGATION REGARDING THE PERFORMANCE OR ENFORCEMENT OF, OR IN ANY WAY
RELATED TO, THIS AGREEMENT, ANY RELATED AGREEMENTS OR OBLIGATIONS
THEREUNDER. DEBTOR HAS READ ALL OF THIS AGREEMENT AND
UNDERSTANDS ALL OF THE PROVISIONS OF THIS AGREEMENT. DEBTOR
ALSO AGREES THAT COMPLIANCE BY SECURED PARTY WITH THE EXPRESS PROVISIONS
OF THIS AGREEMENT SHALL CONSTITUTE GOOD FAITH AND SHALL BE CONSIDERED
REASONABLE FOR ALL PURPOSES.
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8.9
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This
Agreement constitutes the entire agreement with respect to the subject
matter hereof. All prior discussions, agreements and statements
are superceded and merged into this Agreement. No change,
addition or modification of this Agreement shall be valid or binding
unless it is in writing and signed by the party to be
charged. No waiver of any provision of this Agreement shall be
valid unless it is in writing and signed by the party against whom the
waiver is sought to be enforced. No valid waiver of any
provision of this Agreement shall be deemed a waiver of any other
provision of this Agreement.
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8.10
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This
Agreement may be executed in any number of counterparts (no one of which
need contain the signature of more than one party hereto so long as each
party hereto executes at least one such counterpart), which counterparts
shall have the same effect as if the signature thereto and hereto were
upon the same instrument.
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8.11
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This
Agreement is a continuing obligation on the part of Debtor and shall be
binding upon Debtor, its successors and assigns and shall inure to the
benefit of and be enforceable by Secured Party and its participating
lenders, successors, transferees and
assigns.
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[signature
page to follow]
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IN WITNESS WHEREOF, the
parties have caused this Third Party Security Agreement to be executed as of the
date first above written.
| ▇▇▇ OIL COMPANY, INC. | CHOICE FINANCIAL GROUP | |||
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/s/
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/s/
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Name
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Name
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Title
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Title
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| STATE OF | ) | ||
| ) ss | |||
| COUNTY OF | ) |
The
foregoing instrument was acknowledged before me this ___ day of ____________,
2008, by __________________, the ________________ of ▇▇▇ Oil Company, Inc., a
Virginia corporation, on behalf of the corporation.
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Notary
Public
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4054801v1
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