SECURITY AGREEMENT
THIS SECURITY AGREEMENT ("Agreement") dated May 17, 1999, is
made between XCL Land, Ltd. ("Borrower") and Northern Securities
Limited ("Lender"), who agree as follows:
Recitals
1. The Borrower is or will be indebted unto the Lender for
loans made or to be made and evidenced by certain notes,
including, but not limited to that certain Promissory Note by
Borrower payable to the order of Lender dated of even date
herewith (the "Note").
2. In order to secure the full and punctual payment and
performance of the Indebtedness as defined herein, the Borrower
has agreed to execute and deliver this Agreement and to pledge,
deliver and grant a continuing security interest in and to the
Collateral (as hereafter defined).
AGREEMENT
NOW, THEREFORE, in consideration of the premises, the
Borrower and the Lender agree as follows:
Section 2. Definitions.
1. The terms "Agreement," "Borrower," "Lender" and "Note" shall
have the meanings indicated above.
2. As used in this Agreement, the following terms shall have
the following meaning:
"Event of Default" shall have the meaning defined in
the Note.
"General Intangibles" has the meaning given to it in
the UCC.
"Lien" shall mean any interest in property securing an
obligation owed to, or a claim by, a Person other than the owner
of the property, whether such interest is based on jurisprudence,
statute or contract, and including but not limited to the lien or
security interest arising from a mortgage, encumbrance, pledge,
security agreement, conditional sale or trust receipt or a lease,
consignment or bailment for security purposes. The term "Lien"
shall include reservations, exceptions, encroachments, easements,
servitudes, usufructs, rights-of-way, covenants, conditions,
restrictions, leases and other title exceptions and encumbrances
affecting property. For the purposes of this Agreement, the
Borrower shall be deemed to be the owner of any property which it
has accrued or holds subject to a conditional sale agreement,
financing lease or other arrangement pursuant to which title to
the property has been retained by or vested in some other Person
for security purposes.
"New Funds" means funds advanced to Borrower on or
after November 6, 1998 through the purchase of Units or otherwise
up to the aggregate outstanding principal amount of $6,200,000.
"Permitted Liens" means (i) the Security Interests and
any other Liens created, assumed or existing with respect to the
Collateral in favor of Lender or in favor of any other purchaser
of Units or other provider of New Funds to Borrower (provided
that the Liens in favor of such other persons do not cause the
percentage stated in Sections 2(A)(1) and 2(A)(2) hereof to be
less than the percentage of total New Funds provided by Lender)
and (ii) any other Liens permitted by Lender in writing to be
created or assumed or to exist with respect the Collateral.
"Person" means any individual, corporation,
partnership, joint venture, association, joint stock company,
trust, unincorporated organization, government or any agency or
political subdivision thereof, or any other form of entity.
"Proceeds" has the meaning giving to it in the UCC.
"Security Interests" means the security interests in
the Collateral and Proceeds granted hereunder in favor of Lender
securing the Indebtedness.
"Subscription Agreement" means that certain
Subscription Agreement dated May 17, 1999 by and between
Borrower, Lender and XCL Ltd. and any subsequent subscription
agreements for additional Units entered into between the same
parties.
"UCC" means the Uniform Commercial Code, Commercial
Laws - Secured Transactions (Louisiana Revised Statutes 10:9-101
through :9-605) in the State of Louisiana, as amended from time
to time; provided that if by reason of mandatory provisions of
law, the perfection or the effect of perfection or non-perfection
of the Security Interests in any Collateral is governed by the
Uniform Commercial Code as in effect in a jurisdiction other than
Louisiana, "UCC" means the Uniform Commercial Code as in effect
in such other jurisdiction for purposes of the provisions hereof
relating to such perfection or effect of perfection or
non-perfection.
"Units" has the meaning defined in the Subscription
Agreement.
Section 3. Security Interest.
1. To secure the full and punctual payment and performance of
all present and future amounts, liabilities, obligations and
indebtedness of Borrower to the Lender, including, without
limitation all promissory notes (including, but not limited to
the Note) heretofore or hereafter executed by the Borrower, in
principal, interest, deferral and delinquency charges as therein
stipulated, whether such amounts, liabilities, obligations and
indebtedness be liquidated or unliquidated, now existing or
hereafter arising (collectively, the "Indebtedness"), the
Borrower hereby pledges, pawns, transfers and grants to the
Lender a continuing security interest in and to all of the
following property of the Borrower, whether now owned or existing
or hereafter acquired or arising (collectively the "Collateral"):
(1) 35.71% of Borrower's now owned or hereafter acquired
partnership interest (the "Partnership Interest") (which
Partnership Interest is currently a general partner interest) in
▇.▇. Holding Associates, L.P., a Louisiana Partnership in
Commendam (the "Partnership"), which Partnership was created by
that certain Agreement of Limited Partnership dated May 27, 1991,
as amended by amendments filed with the Louisiana Secretary of
State on February 25, 1993, August 19, 1994, September 1, 1994,
October 7, 1994 and January 8, 1997 (the "Partnership
Agreement");
(2) 35.71% of any and all monies and other distributions (cash
or property), allocations or payments made or to be made to
Borrower pursuant to the Partnership Agreement or attributable to
the Partnership Interest;
(3) all General Intangibles related in any way to the collateral
described in clauses 1 or 2 above; and
(4) all Proceeds and products of all or any of the collateral
described in clauses 1-3 above.
2. The security interests are granted as security only and
shall not subject the Lender to, or transfer or in any way affect
or modify, any obligation or liability of the Borrower with
respect to any of the Collateral or any transaction in connection
therewith.
Section 4. Delivery of Collateral if Ever Represented by
Certificates. If the Partnership Interest is ever represented by
a certificate of interest or any similar document, the Borrower
will immediately deliver such certificate or document to the
Lender or to an agent that Lender and all other holders of
security interests in Borrower's Partnership Interest have agreed
shall hold the certificate or document on their behalf.
Section 5. No Liens. Other than financing statements or
other similar or equivalent documents or instruments with respect
to the Security Interests and Permitted Liens, no financing
statement, mortgage, security agreement or similar or equivalent
document or instrument covering all or any part of the Collateral
is on file or of record in any jurisdiction in which such filing
or recording would be effective to perfect a Lien on such
Collateral. No Collateral is in the possession of any Person
(other than Borrower) asserting any claim thereto or security
interest therein, except that Lender or its designee may have
possession of Collateral as contemplated hereby. Except with
respect to Permitted Liens, the Liens granted pursuant to this
Agreement constitute perfected first priority Liens on the
Collateral in favor of the Lender.
Section 6. No Conflict. The Borrower has not performed any
acts or signed any agreements which might prevent the Lender from
enforcing any of the terms of this Agreement or which would limit
the Lender in any such enforcement.
Section 7. Name. The full name of Borrower is as it appears
on page 1 of this Agreement.
Section 8. Federal Taxpayer Number. The federal taxpayer
identification number of Borrower is as follows: ▇▇-▇▇▇▇▇▇▇.
Section 9. Chief Executive Office. The chief executive
office of Borrower is ▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇.
Section 10. Location of Collateral. Borrower will keep and
maintain all books or records relating to any of the Collateral
at its chief executive office.
Section 11. Filing Location. When a UCC financing statement
has been filed in the offices of a Louisiana Clerk of Court of
any parish other than Orleans (or in the case of Orleans Parish,
with the Recorder of Mortgages), the Security Interests shall
constitute perfected security interests in the Collateral to the
extent that a security interest therein may be perfected by
filing pursuant to the UCC, prior to all other Liens except for
the Permitted Liens and rights of others therein to the extent
that such priority is afforded by the UCC.
Section 12. Title. Borrower has good and merchantable title
to the Collateral, free of Liens except Permitted Liens.
Furthermore, Borrower has not heretofore conveyed or agreed to
convey or encumber any Collateral in any way, except in favor of
Lender or other holders of Permitted Liens. Lender understands
and agrees, however, that Borrower has granted a security
interest in all of its Partnership Interest in the Partnership
(other than the percentage of its Partnership Interest covered
hereby) to those persons or entities who have previously
purchased Units or provided other New Funds. Lender further
agrees and acknowledges that in the event that additional Units
are sold or additional New Funds are provided to Borrower after
the date hereof by persons other than Lender and secured by
partnership interests in ▇.▇. Holding, Lender will immediately
upon demand by Borrower (one or more times, as appropriate)
execute amendments to this Agreement releasing a percentage of
the Borrower's Partnership Interest sufficient to allocate the
security interests in the partnership interest of ▇.▇. Holding
among the Unit holders or other providers of New Funds on a
proportionate basis (provided that no reduction in such security
interest need be made with respect to amounts of New Funds in
excess of an aggregate of $6,200,000 principal outstanding).
Section 13. Incorporation and Existence. Borrower is a
corporation duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization and has
the corporate power and authority and the legal right to own and
operate the Collateral and to conduct the business in which it is
currently engaged.
Section 14. No Consents or Approvals. Except for those
filings and registrations required to perfect the Liens created
by this Agreement, the Borrower is not required to obtain any
order, consent, approval or authorization of, or required to make
any declaration or filing with, any governmental authority or any
other Person in connection with the execution and delivery of
this Agreement and the granting and perfection of the Security
Interests pursuant to this Agreement.
Section 15. Due Execution; Binding Obligation. This Agreement
has been duly executed and delivered on behalf of the Borrower,
and this Agreement constitutes a legal, valid and binding
obligation of Borrower, enforceable against Borrower in
accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the enforcement of
creditors' rights generally and except as enforceability may be
subject to general principles of equity, whether such principles
are applied in a court of equity or at law.
Section 16. No Conflicts. The execution, delivery and
performance of this Agreement will not (I) result in any
violation of or be in conflict with or constitute a default under
any terms of any agreement, contract, statute, regulation, law or
ordinance; (ii) have a material adverse effect on the Collateral;
(iii) materially adversely affect the ability of Borrower to
perform its obligations under this Agreement or the Note, or
(iv) result in the creation of any Lien upon any of the
properties or revenues of Borrower other than the Liens in favor
of the Lender created pursuant to this Agreement.
Section 17. Voting Rights. Notwithstanding the security
interest granted hereby and whether or not an Event of Default
(as defined in the Note) shall have occurred, the Borrower shall
have the exclusive right to exercise all voting and other rights
under the Partnership Agreement until such time (if and when)
Lender forecloses on the Collateral and becomes the owner
thereof.
Section 18. Notice of Changes. Borrower will not change its
name, corporate identity or taxpayer identification number in any
manner unless it shall have given Lender at least five (5) days
prior written notice thereof.
Section 19. Remedies upon Default.
1. Sale. Upon the occurrence of an Event of Default, Lender
may exercise all rights of a secured party under the UCC and
other applicable law (including the Uniform Commercial Code as in
effect in another applicable jurisdiction) and, in addition,
Lender may, without being required to give any notice, except as
herein provided or as may be required by mandatory provisions of
law, sell the Collateral or any part thereof at public or private
sale, for cash, upon credit or for future delivery, and at such
price or prices as Lender may deem satisfactory. Lender may be
the purchaser of any or all of the Collateral so sold at any
public sale (or, if the Collateral is of a type customarily sold
in a recognized market or is of a type which is the subject of
widely distributed standard price quotations, at any private
sale). Borrower will execute and deliver such documents and take
such other action as Lender deems necessary or advisable in order
that any such sale may be made in compliance with law. Upon any
such sale Lender shall have the right to deliver, assign and
transfer to the purchaser thereof the Collateral so sold. Each
purchaser at any such sale shall hold the Collateral so sold to
it absolutely and free from any claim or right of whatsoever
kind, including any equity or right of redemption of Borrower
which may be waived, and Borrower, to the extent permitted by
law, hereby specifically waives all rights of redemption, stay or
appraisal which it has or may have under any law now existing or
hereafter adopted. Borrower agrees that ten (10) days prior
written notice of the time and place of any sale or other
intended disposition of any of the Collateral constitutes
"reasonable notification" within the meaning of Section 9-504(3)
of the UCC, except that shorter notice or no notice shall be
reasonable as to any Collateral which is perishable or threatens
to decline speedily in value or is of a type customarily sold on
a recognized market. The notice (if any) of such sale shall
(1) in case of a public sale, state the time and place fixed for
such sale, and (2) in the case of a private sale, state the day
after which such sale may be consulted. Any such public sale
shall be held at such time or times within ordinary business
hours and at such place or places as Lender may fix in the notice
or such sale. At any such sale the Collateral may be sold in one
lot as an entirety or in separate parcels, as Lender may
determine. Lender shall not be obligated to make any such sale
pursuant to any such notice. Lender may, without notice or
publication, adjourn any public or private sale or cause the same
to be adjourned from time to time by announcement at the time and
place fixed for the sale, and such sale may be made at any time
or place to which the same may be so adjourned. In case of any
sale of all or any part of the Collateral on credit or for future
delivery, the Collateral so sold may be retained by Lender until
the selling price is paid by the purchaser thereof, but Lender
shall not incur any liability in case of the failure of such
purchaser to take up and pay for the Collateral so sold and, in
case of any such failure, such Collateral may again be sold upon
like notice.
2. Foreclosure. Instead of exercising the power of sale herein
conferred upon it, Lender may proceed by a suit or suits at law
or in equity to foreclose the Security Interests and sell the
Collateral, or any portion thereof, under a judgment or decree of
a court or courts of competent jurisdiction. FOR THE PURPOSES OF
LOUISIANA EXECUTORY PROCESS PROCEDURES, BORROWER DOES HEREBY
CONFESS JUDGMENT IN FAVOR OF LENDER FOR THE FULL AMOUNT OF THE
INDEBTEDNESS. BORROWER DOES BY THESE PRESENTS CONSENT, AGREE AND
STIPULATE THAT UPON THE OCCURRENCE OF AN EVENT OF DEFAULT IT
SHALL BE LAWFUL FOR LENDER, AND THE BORROWER DOES HEREBY
AUTHORIZE LENDER, TO CAUSE ALL AND SINGULAR THE COLLATERAL TO BE
SEIZED AND SOLD UNDER EXECUTORY OR ORDINARY PROCESS, AT LENDER'S
SOLE OPTION, WITH OR WITHOUT APPRAISEMENT, APPRAISEMENT BEING
HEREBY EXPRESSLY WAIVED, IN ONE LOT AS AN ENTIRETY OR IN SEPARATE
PARCELS AS LENDER MAY DETERMINE, TO THE HIGHEST BIDDER, AND
OTHERWISE EXERCISE THE RIGHTS, POWERS AND REMEDIES AFFORDED
HEREIN AND UNDER APPLICATION LOUISIANA LAW. ANY AND ALL
DECLARATIONS OF FACT MADE BY AUTHENTIC ACT BEFORE A NOTARY PUBLIC
IN THE PRESENCE OF TWO WITNESSES BY A PERSON DECLARING THAT SUCH
FACTS LIE WITHIN HIS KNOWLEDGE SHALL CONSTITUTE AUTHENTIC
EVIDENCE OF SUCH FACTS FOR THE PURPOSE OF EXECUTORY PROCESS.
BORROWER HEREBY WAIVES IN FAVOR OF LENDER: (A) THE BENEFIT OF
APPRAISEMENT AS PROVIDED IN LOUISIANA CODE OF CIVIL PROCEDURE
ARTICLES 2332, 2336, 2723 AND 2724, AND ALL OTHER LAWS CONFERRING
THE SAME; (B) THE DEMAND AND THREE DAYS DELAY ACCORDED BY
LOUISIANA CODE OF CIVIL PROCEDURE ARTICLES 2639 AND 2721; (C) THE
NOTICE OF SEIZURE REQUIRED BY LOUISIANA CODE OF CIVIL PROCEDURE
ARTICLES 2293 AND 2721; (D) THE THREE DAYS DELAY PROVIDED BY
LOUISIANA CODE OF CIVIL PROCEDURE ARTICLES 2331 AND 2722; AND
(E) THE BENEFIT OF THE OTHER PROVISIONS OF LOUISIANA CODE OF
CIVIL PROCEDURE ARTICLES 2331, 2722 AND 2723, NOT SPECIFICALLY
MENTIONED ABOVE.
3. Effect of Securities Laws. The Borrower recognizes that the
Lender may be unable to effect a public sale of all or part of
the Collateral by reason of certain prohibitions contained in the
Securities Act of 1933, as amended, and applicable state
securities laws but may be compelled to resort to one or more
private sales to a restricted group of purchasers who will be
obligated to agree, among other things, to acquire all or a part
of the Collateral for their own account, for investment, and not
with a view to the distribution or resale thereof. If the Lender
deems it advisable to do so for the foregoing or for other
reasons, the Lender is authorized to limit the prospective
bidders on or purchasers of any of the Collateral to such a
restricted group of purchasers and may cause to be placed on
certificates for any or all of the Collateral a legend to the
effect that such security has not been registered under the
Securities Act of 1933, as amended, and may not be disposed of in
violation of the provision of said act, and to impose such other
limitations or conditions in connection with any such sale as the
Lender deems necessary or advisable in order to comply with said
act or any other securities or other laws. The Borrower
acknowledges and agrees that any private sale so made may be at
prices and on other terms less favorable to the seller than if
such Collateral were sold at public sale and that the Lender has
no obligation to delay the sale of such Collateral for the period
of time necessary to permit the registration of such Collateral
for public sale under any securities laws. The Borrower agrees
that a private sale or sales made under the foregoing
circumstances shall be deemed to have been made in a commercially
reasonable manner. If any consent, approval, or authorization of
any federal, state, municipal or other governmental department,
agency or authority should be necessary to effectuate any sale or
other disposition of the Collateral, or any partial sale or other
disposition of the Collateral, the Borrower will execute all
applications and other instruments as may be required in
connection with securing any such consent, approval or
authorization and will otherwise use its best efforts to secure
same.
Section 20. Limitation on Duty of Lender. Beyond the exercise
of reasonable care in the custody thereof, the Lender shall have
no duty as to any Collateral in its possession or control or in
the possession or control of any agent or bailee or any income
thereon. The Lender shall be deemed to have exercised reasonable
care in the custody of the Collateral in its possession if the
Collateral is accorded treatment substantially equal to that
which it accords its own property, and shall not be liable or
responsible for any loss or damage to any of the Collateral, or
for any diminution in the value thereof, by reason of the act or
omission of any broker or other agent or bailee selected by the
Lender in good faith. The Lender shall be deemed to have
exercised reasonable care with respect to any of the Collateral
in its possession if the Lender takes such action for that
purpose as the Borrower shall reasonably request in writing; but
no failure to comply with any such request shall, of itself, be
deemed a failure to exercise reasonable care.
Section 21. Appointment of Agent. At any time or times, in
order to comply with any legal requirement in any jurisdiction,
the Lender may appoint a bank or trust company or one or more
other Persons with such power and authority as may be necessary
for the effectual operation of the provisions hereof and may be
specified in the instrument of appointment.
Section 22. Expenses. All sums incurred by the Lender in
enforcing or protecting any of the rights or remedies under this
Agreement, together with interest thereon until paid at the rate
equal the then highest rate of interest charged on the principal
of any of the Indebtedness plus one percent (1%), shall be
additional Indebtedness hereunder and the Borrower agrees to pay
all of the foregoing sums promptly on demand.
Section 23. Termination. Upon the payment in full of the
Indebtedness, this Agreement shall terminate. Upon request of the
Borrower, the Lender shall deliver the remaining Collateral (if
any) to the Borrower. Upon request of Borrower, Lender shall
execute and deliver to Borrower at Borrower's expense such
termination statements as Borrower may reasonably request to
evidence such termination.
Section 24. Notices. Any notice or demand which, by provision
of this Agreement, is required or permitted to be given or served
to the Borrower and the Lender shall be deemed to have been
sufficiently given and served for all purposes if made in
accordance with the Note.
Section 25. Amendment. Neither this Agreement nor any
provisions hereof may be changed, waived, discharged or
terminated orally or in any manner other than by an instrument in
writing signed by the party against whom enforcement of the
change, waiver, discharge or termination is sought.
Section 26. Waivers. No course of dealing on the part of the
Lender, its officers, employees, consultants or agents, nor any
failure or delay by the Lender with respect to exercising any of
its rights, powers or privileges under this Agreement shall
operate as a waiver thereof.
Section 27. Cumulative Rights. The rights and remedies of the
Lender under this Agreement shall be cumulative and the exercise
or partial exercise of any such right or remedy shall not
preclude the exercise of any other right or remedy.
Section 28. Titles of Sections. All titles or headings to
sections of this Agreement are only for the convenience of the
parties and shall not be construed to have any effect or meaning
with respect to the other content of such sections, such other
content being controlling as to the agreement between the parties
hereto.
Section 29. Governing Law. This Agreement is a contract made
under and shall be construed in accordance with and governed by
the laws of the United States of America and the State of
Louisiana.
Section 30. Successors and Assigns. All covenants and
agreements made by or on behalf of the Borrower in this Agreement
shall bind Borrower's successors and assigns and shall inure to
the benefit of the Lender and its successors and assigns.
Section 31. Counterparts. This Agreement may be executed in
two or more counterparts, and it shall not be necessary that the
signatures of all parties hereto be contained on any one
counterpart hereof, each counterpart shall be deemed an original,
but all of which when taken together shall constitute one and the
same instrument.
IN WITNESS WHEREOF, the Borrower and the Lender have caused
this Agreement to be duly executed as of the date first above
written.
WITNESSES: XCL LAND, LTD.
_________________________
By:___________________________________
Name:____________________ Name:______________________________
(Please Print) Title:_______________________________
_________________________
Name:____________________
(Please Print)
LENDER:
NORTHERN SECURITIES LIMITED
_________________________ By:______________________________________
Name:____________________ Name:____________________________
(Please Print) Title:____________________________
_________________________
Name:____________________
(Please Print)