[FORM OF SECURITY
AGREEMENT]
THIS SECURITY
AGREEMENT (the “Security Agreement”) is made this 14th
day of November, 2006, between [NAME OF COMPANY AND EACH OF ITS
SUBSIDIARIES] (“Debtor”), and First National Bank of
Omaha, a national banking association (“Secured
Party”).
This Security
Agreement is entered into with respect to certain Loans to be made
by Secured Party to Debtor pursuant to the Loan Agreement by and
among Debtor, ProConn, LLC, Exact Logistics, LLC and Secured Party
of even date herewith (the “Loan Agreement”). All
capitalized terms used in this Security Agreement, except terms
otherwise defined herein, shall have the same meaning as such terms
have in the Loan Agreement.
Secured Party and
Debtor agree as follows:
1.1
“Collateral”. The collateral shall consist of all of
the personal property of Debtor, wherever located, and now owned or
hereafter acquired, including:
|
|
a.
|
|
Accounts;
|
|
|
|
|
|
|
|
b.
|
|
Chattel Paper;
|
|
|
|
|
|
|
|
c.
|
|
Inventory;
|
|
|
|
|
|
|
|
d.
|
|
Equipment;
|
|
|
|
|
|
|
|
e.
|
|
Instruments (including Promissory
Notes);
|
|
|
|
|
|
|
|
f.
|
|
Investment Property;
|
|
|
|
|
|
|
|
g.
|
|
Documents;
|
|
|
|
|
|
|
|
h.
|
|
Deposit Accounts;
|
|
|
|
|
|
|
|
i.
|
|
Letter-of-Credit Rights;
|
|
|
|
|
|
|
|
j.
|
|
General Intangibles (including
payment intangibles);
|
|
|
|
|
|
|
|
k.
|
|
Supporting Obligations;
and
|
|
|
|
|
|
|
|
l.
|
|
to
the extent not listed above as original collateral, proceeds and
products of the foregoing.
|
1.2
“Obligations.” This Security Agreement secures the
following:
|
|
a.
|
|
Debtor’s obligations under the
Loan Agreement, the Notes and the Collateral Agreements;
|
|
|
|
|
|
|
|
b.
|
|
all
of Debtor’s other present and future obligations to Secured
Party;
|
1
|
|
c.
|
|
the
repayment of (i) any amounts that Secured Party may advance or
spend for the maintenance or preservation of the Collateral and
(ii) any other expenditures that Secured Party may make under
the provisions of the Loan Agreement, the Notes, the Collateral
Agreements or for the benefit of Debtor;
|
|
|
|
|
|
|
|
d.
|
|
all
amounts owed under any modifications, renewals or extensions of any
of the foregoing obligations;
|
|
|
|
|
|
|
|
e.
|
|
all
other amounts now or in the future owed by Debtor to Secured Party;
and
|
|
|
|
|
|
|
|
f.
|
|
any
of the foregoing that arises after the filing by or against Debtor
under the Bankruptcy Code, even if the obligations do not accrue
because of the automatic stay under the Bankruptcy Code
Section 362 or otherwise.
|
1.3
“UCC.” Any term used in the Uniform Commercial Code
(“UCC”) and not defined in this Security Agreement has
the meaning given to the term in the UCC.
2. Grant of
Security Interest.
Debtor grants a
security interest in the Collateral to Secured Party to secure the
payment or performance of the Obligations.
3.
Perfection of Security Interest.
3.1 Filing of
Financing Statement.
|
|
a.
|
|
Debtor authorizes Secured Party to
file a financing statement (the “Financing Statement”)
describing the Collateral.
|
|
|
|
|
|
|
|
b.
|
|
Debtor also authorizes Secured Party
to file a Financing Statement describing any agricultural liens or
other statutory liens held by Secured Party.
|
|
|
|
|
|
|
|
c.
|
|
Secured Party shall receive prior to
the funding of any Advance under the Loan Agreement an official
report from the Secretary of State of each Collateral State, Chief
Executive Office State and the Debtor State (each as defined in
Exhibit A to this Security Agreement) (the “SOS
Reports”) indicating that Secured Party’s security
interest is prior to all other security interests or other
interests reflected in the report.
|
|
|
a.
|
|
Debtor shall have possession of the
Collateral, except where expressly otherwise provided in this
Security Agreement or where Secured Party chooses to perfect its
security interest by possession in addition to the filing of a
Financing Statement.
|
|
|
|
|
|
|
|
b.
|
|
Where Collateral is in the
possession of a third party, Debtor will join with the Secured
Party in notifying the third party of Secured Party’s
security interest and obtaining an acknowledgement from the third
party that it is holding the Collateral for the benefit of Secured
Party.
|
2
3.3 Control.
Debtor will cooperate with Secured Party in obtaining control with
respect to Collateral consisting of:
|
|
a.
|
|
Deposit Accounts;
|
|
|
|
|
|
|
|
b.
|
|
Investment Property;
|
|
|
|
|
|
|
|
c.
|
|
Letter-of-Credit Rights;
and
|
|
|
|
|
|
|
|
d.
|
|
Electronic Chattel Paper.
|
3.4 Marking of
Chattel Paper. Debtor will not create any Chattel Paper without
placing a legend on the Chattel Paper acceptable to Secured Party
indicating that Secured Party has a security interest in the
Chattel Paper.
4.
Post-Closing Covenants and Rights Concerning the
Collateral.
4.1 Inspection.
The parties to this Security Agreement may inspect any Collateral
in the other party’s possession, at any time upon reasonable
notice.
4.2 Personal
Property. The Collateral shall remain personal property at all
times. Debtor shall not affix any of the Collateral to any real
property in any manner which would change its nature from that of
personal property to real property or to a fixture.
4.3 Secured
Party’s Collection Rights. Secured Party shall have the right
upon the occurrence of an Event of Default to enforce
Debtor’s rights against the account debtors and
obligors.
4.4 Limitations on
Obligations Concerning Maintenance of Collateral.
|
|
a.
|
|
Risk of Loss. Debtor has the risk of
loss of the Collateral.
|
|
|
b.
|
|
No
Collection Obligation. Secured Party has no duty to collect any
income accruing on the Collateral or to preserve any rights
relating to the Collateral.
|
|
|
|
|
|
|
|
4.5
|
|
No
Disposition of Collateral. Secured Party does not authorize and
Debtor agrees not to:
|
|
|
|
|
|
|
|
a.
|
|
make any sales or leases of any of
the Collateral;
|
|
|
|
|
|
|
|
b.
|
|
license any of the Collateral;
or
|
|
|
|
|
|
|
|
c.
|
|
grant any other security interest in
any of the Collateral.
|
4.6 Purchase Money
Security Interests. To the extent Debtor uses the Loans to purchase
Collateral, Debtor’s repayment of the Loans shall apply on a
“first-in-first-out” basis so that the portion of the
Loans used to purchase a particular item of Collateral shall be
paid in the chronological order the Debtor purchased the
Collateral.
5.
Debtor’s Representations and Warranties.
Debtor
warrants and represents that:
3
5.1 Title To and
Transfer of Collateral. It has rights in or the power to transfer
the Collateral and its title to the Collateral is free of all
adverse claims, liens, security interests and restrictions on
transfer or pledge except as created by this Security
Agreement.
5.2 Location of
Collateral. All Collateral consisting of goods is located solely in
the Collateral States identified in Exhibit A to this Security
Agreement.
5.3 Location,
State of Incorporation and Name of Debtor.
Debtor’s:
|
|
a.
|
|
chief executive office is located in
the Chief Executive Office State identified in Exhibit A to
this Security Agreement;
|
|
|
|
|
|
|
|
b.
|
|
state of incorporat
|
|
