EXHIBIT 10.17
SECURITY AGREEMENT
This Security Agreement (the "Agreement") is given as of the 17th day
of June, 2004 by TSL ACQUISITION CORP. (the "Debtor"), whose address is
0000 Xxxxxxxxx Xxxx, Xxxxx, Xxxxxxxx 00000, to TRINITY SPRINGS LTD., an
Idaho corporation ("Trinity"), whose address is 000 0xx Xxxxxx X. #2C,
X.X. Xxx 0000, Xxxxxxx, Xxxxx 00000.
Preliminary Statement. Contemporaneous herewith, the Debtor is
executing and delivering to Trinity (a) a Promissory Note in the original
principal amount of FIVE HUNDRED THOUSAND DOLLARS AND 00/100 DOLLARS
($500,000.00) (the "Three Year Note"); (b) a Promissory Note in the
original principal amount of TWO MILLION EIGHT HUNDRED TWENTY EIGHT
THOUSAND FOUR HUNDRED FORTY AND 00/100 DOLLARS ($2,828,440.00) (the "Ten
Year Note"); and (c) an Asset Purchase Agreement dated as of April 24,
2004, and as amended on June 17, 2004 (the "Purchase Agreement"), among
Debtor, Trinity and AMCON Distributing Company, the parent of Debtor
("AMCON"), pursuant to which, in Section 11.1 of the Purchase Agreement,
Debtor has agreed to make certain royalty payments to Trinity (the "Water
Royalty"). To secure the payment of the Three Year Note, the Ten Year
Note and the Water Royalty, and in consideration for Trinity's execution,
delivery and performance of the Purchase Agreement, the Debtor is
executing and delivering to Trinity (x) this Agreement to grant Trinity a
security interest in certain of the Assets; and (y) a Mortgage (the
"Mortgage") to grant Trinity a security interest in Real Property.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Debtor and Trinity agree
as follows:
1. Defined Terms. All capitalized terms used but not otherwise
defined herein shall have the meaning set froth in the Purchase Agreement.
2. Grant of Security Interest. The Debtor hereby grants, conveys,
mortgages, pledges, transfers and assigns to Trinity a continuing first-
priority security interest in all of the Debtor's right, title and
interest in and to the property and rights listed in Exhibit A attached
hereto (collectively, the "Collateral").
3. Security for Obligations. This Agreement secures the payment and
performance of all present and future obligations of the Debtor to Trinity
under the Three Year Note, the Ten Year Note and the Water Royalty,
together with any amounts expended by or on behalf of Trinity for the
protection, preservation and collection of the security interest granted
herein by the Debtor to Trinity, including, without limitation, reasonable
attorneys fees (collectively, the "Obligations").
4. Representations and Covenants. Debtor hereby represents,
warrants and covenants to Trinity that: (a) Debtor shall own the
Collateral free and clear of any lien, security interest, claim or
encumbrance, except for (i) any lien, security interest, claim or
encumbrance on the Collateral that existed prior to the Closing of the
transaction contemplated in the Purchase Agreement; (ii) the security
interest granted by this Agreement, (iii) any subordinate lien or
subordinate security interest hereafter created by Debtor, and (iv) any
purchase money security interest in property hereafter acquired by Debtor;
(b) Debtor will notify Trinity in writing at least thirty (30) days prior
to any change in Debtor's name, address or form of entity; (c) all of the
Collateral is kept at the place where delivered to Debtor by Trinity and
Debtor promptly will notify Trinity at least thirty (30) days prior to any
change in location of any Collateral; and (d) except in the ordinary
course of Debtor's business consistent with past practices, Debtor will
not sell or offer to sell, assign, lease or otherwise dispose of any
material portion of the Collateral without Trinity's prior written
consent, not to be unreasonably withheld or delayed.
5. Further Assurances.
a. The Debtor agrees that from time to time, at the sole expense
of the Debtor, the Debtor shall promptly execute and deliver all further
instruments and documents, and take all further action, that may be
necessary or desirable, or that Trinity may reasonably request, in order
to perfect and protect any security interest granted or purported to be
granted hereby or to enable Trinity to exercise and enforce its rights and
remedies hereunder with respect to any Collateral. Without limiting the
generality of the foregoing, the Debtor shall execute and file such
financing or continuation statements, or amendments thereto, as Trinity
may request, and shall execute a Mortgage and/or Deed of Trust or any
other document reasonably requested by Trinity to perfect Trinity's first
priority security interest in the Water Rights which is the subject of the
Water Royalty.
b. The Debtor hereby authorizes Trinity to file one or more
financing or continuation statements, and amendments thereto, relating to
all or any part of the Collateral, without the signature of the Debtor to
the extent permitted by law. A copy of this Agreement shall be sufficient
as a financing statement to the extent permitted by law.
6. Trinity's Duties. The powers conferred on Trinity hereunder are
solely to protect its interest in the Collateral and shall not impose any
duty upon it to exercise any such powers. Except for the safe custody of
any Collateral in its possession and the accounting for monies actually
received by it hereunder, Trinity shall have no duty as to any Collateral
or as to the taking of any necessary steps to preserve rights against
other parties or any other rights pertaining to any Collateral.
7. Debtor Remains Liable. Notwithstanding anything herein to the
contrary, (a) the Debtor shall remain liable under the contracts and
agreements included in the Collateral, if any, to the extent set forth
therein to perform all of its duties and obligations thereunder to the
same extent as if this Agreement had not been executed, (b) the exercise
by Trinity of any of its rights hereunder shall not release the Debtor
from any of its duties or obligations under any contracts and agreements
included in the Collateral, and (c) Trinity shall not have any obligation
or liability under any contracts and agreements included in the Collateral
by reason of this Agreement, nor shall Trinity be obligated to perform any
of the obligations or duties of the Debtor thereunder or to take any
action to collect or enforce any claim for payment assigned thereunder.
8. Events of Default. The occurrence of any one or more of the
following events shall constitute an event of default ("Event of Default")
hereunder:
a. An "Event of Default" as described in the Three Year Note;
b. An "Event of Default" as described in the Ten Year Note;
c. Debtor shall fail to pay any installment when due of the
Water Royalty pursuant to Section 11.1 of the Asset Purchase Agreement and
such failure shall continue for a period of five (5) days after Trinity
provides written notice of such failure to Debtor; provided, however, that
in the event any amount of the Water Royalty is subject to any bona fide
dispute, an Event of Default hereunder shall not occur unless Debtor fails
to pay the amount of the Water Royalty that is not in dispute when
originally due (subject to the five (5) day notice and right to cure
period) or fails to pay the disputed amount finally adjudicated to be due
by a court of competent jurisdiction from which no further appeal may be
effected, and such payment is not made within twenty (20) days after the
judgment of such court becomes final and no longer subject to appeal;
9. Remedies. If any Event of Default shall have occurred:
a. Trinity shall have the right to take immediate possession of
the Collateral, and (i) to require the Debtor to assemble the Collateral,
at the Debtor's expense, and make it available to Trinity at a place
designated by Trinity which is reasonably convenient to both parties, and
(ii) to enter any of the premises of the Debtor or wherever any of the
Collateral shall be located, and to keep and store the same on such
premises until sold or otherwise realized upon (and if such premises are
the property of the Debtor, the Debtor agrees not to charge Trinity for
storage thereof).
b. Trinity shall have the right to sell or otherwise dispose of
all or any Collateral at public or private sale or sales, with such notice
as may be required by law, all as Trinity, in its sole discretion, may
deem advisable. The Debtor agrees that ten (10) days written notice to
the Debtor of any public or private sale or other disposition of such
Collateral shall be reasonable notice thereof, and such sale shall be at
such locations as Trinity may designate in such notice. Trinity shall
have the right to conduct such sales on the Debtor's premises, without
charge therefor. All public or private sales may be adjourned from time
to time in accordance with applicable law. Trinity shall have the right
to sell, lease or otherwise dispose of such Collateral, or any part
thereof, for cash, credit or any combination thereof, and Trinity may
purchase all or any part of such Collateral at public or, if permitted by
law, private sale and, in lieu of actual payment of such purchase price,
may set off the amount of such price against the Obligations.
c. Trinity may exercise in respect of the Collateral, in
addition to other rights and remedies provided for herein, all the rights
and remedies of a secured party on default under the Uniform Commercial
Code or otherwise available at law or in equity.
d. All rights and remedies of Trinity after a default shall be
cumulative. No waiver by Trinity of any default will waive any other
default or the same default on a different occasion.
e. Debtor hereby authorizes and empowers Trinity, and appoints
Trinity as attorney in fact of Debtor, which authorization, power and
appointment, being coupled with an interest, is irrevocable until payment
of all Obligations, at any time after a default, in Trinity's sole and
absolute discretion, to: (a) request, in Debtor's name, Trinity's name or
the name of a third party, confirmation from any account debtor or party
obligated under or with respect to any Collateral of the amount shown by
the accounts or other Collateral to be payable, or any other matter stated
therein; (b) endorse in Debtor's name and to collect any chattel paper,
checks, notes, drafts, instruments or other items of payment tendered to
or received by Trinity in payment of any account or other obligation owing
to Debtor with respect to any Collateral; (c) notify, either in Debtor's
name or Trinity's name, and/or to require Debtor to notify, any account
debtor or other person obligated under or in respect of any Collateral, of
the fact of Trinity's lien thereon and of the collateral assignment
thereof to Trinity; and (d) demand, collect, surrender, release or
exchange all or any part of any Collateral or any amounts due thereunder
or with respect thereto, or compromise or extend or renew for any period
(whether or not longer than the initial period) any and all sums which are
now or may hereafter become due or owing upon or with respect to any of
the Collateral, or enforce, by suit or otherwise, payment or performance
of any of the Collateral either in Trinity's own name or in the name of
Debtor. Under no circumstances shall Trinity be under any duty to act in
regard to any of the foregoing matters and nothing herein shall be deemed
an assignment to, or assumption by, Trinity of any obligations or
liabilities under or with respect to any Collateral, all of which
obligations and liabilities shall remain Debtor's sole responsibility.
10. Indemnity and Expenses.
a. The Debtor agrees to indemnify Trinity from and against any
and all claims, losses and liabilities arising out of or relating to this
Agreement and/or any of the Obligations (including, without limitation,
enforcement of this Agreement and Trinity's exercise of its rights and
remedies hereunder).
b. The Debtor shall upon demand pay to Trinity the amount of
any and all expenses, including, without limitation, the fees and
disbursements of its counsel and of any experts and agents, which Trinity
may incur following an Event of Default in connection with (i) the
administration of this Agreement, (ii) the custody, preservation, use of,
or the sale of, collection from, or other realization upon, any of the
Collateral, (iii) the exercise or enforcement of any of the rights of
Trinity hereunder, or (iv) the failure by the Debtor to perform or observe
any of the provisions hereof. All such fees, expenses and disbursements
shall be deemed Obligations that are secured by this Agreement.
11. Notice. All notices, requests and demands to or upon a party
hereto shall be given in writing at the addresses set forth above and in
accordance with the notices provisions set forth in the Mortgage.
12. Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of Idaho
without giving effect to any choice of law rules thereof; provided,
however, that if any of the Collateral shall be located in any
jurisdiction other than Idaho, the laws of such jurisdiction shall govern
the method, manner and procedure for foreclosure of Trinity's lien upon or
other interest in such Collateral and the enforcement of Trinity's other
remedies in respect of such Collateral to the extent that the laws of such
jurisdiction are different from or inconsistent with the laws of Idaho.
13. Miscellaneous. No amendment or waiver of any provision of this
Agreement nor consent to any departure by the Debtor herefrom, shall in
any event be effective unless the same shall be in writing and signed by
the party against whom enforcement of such amendment, waiver or consent is
sought, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given. The
paragraph and section headings herein are solely for convenience and shall
not be deemed to limit or otherwise affect the meaning or construction of
any part of this Agreement. This document shall be construed without
regard to any presumption or rule requiring construction against the party
causing such document or any portion thereof to be drafted. If any
provision or provisions of this Agreement shall be unlawful, then such
provision or provisions shall be null and void, but the remainder of the
Agreement shall remain in full force and effect and be binding on the
parties. A facsimile or other electronically transmitted signature of the
Debtor shall be deemed an original signature.
IN WITNESS WHEREOF, the Debtor has caused this Agreement to be
executed and delivered by its duly authorized representative as of the
date first above written.
TSL ACQUISITION CORP.
By: Xxxxxxx X. Xxxxxx
--------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Chairman of the Board and
Chief Executive Officer
EXHIBIT A
a. Collateral. All Tangible Personal Property (but excluding
Inventory), Governmental Authorizations (including, without limitation,
the Seller's Water Rights or the Real Property, the Real Property Leases
and all Appurtenances thereto), the Intellectual Property Rights, Records,
and all other tangible and intangible property acquired by Debtor from
Trinity, pursuant to the terms of the Purchase Agreement other than and
excluding, for all purposes, Inventory and Accounts Receivable.
b. Products and Proceeds. All accessions, additions, attachments,
improvements, substitutions and replacements thereto and therefor, and all
proceeds, products, offspring, rents, issues, profits and returns of and
from any of the Collateral described in subsection (a) above and, to the
extent not otherwise included, all payments under any insurance policy or
payments (whether or not Trinity is the loss payee thereof), and any
indemnity, warranty or guaranty, payable by reason of loss or damage to or
otherwise with respect to any of the foregoing Collateral.
c. Capitalized Terms. All capitalized terms in this Agreement and
Exhibit B, not otherwise defined herein, shall have the meaning given to
such terms by the Purchase Agreement.
