Exhibit 10.3
SECURITY
AGREEMENT
THIS SECURITY
AGREEMENT , dated as of
January 30, 2006, between GOLDEN GRAIN ENERGY, LLC, an Iowa
limited liability company (“ Borrower ”),
and HOME FEDERAL SAVINGS BANK (“ Lender
”).
WHEREAS , Borrower has entered into a Credit Agreement
dated as of the date hereof (as amended and in effect from time to
time, the “ Credit Agreement ”) with
Lender, pursuant to which Lender, subject to the terms and
conditions contained therein, is to make loans to Borrower;
and
WHEREAS , it is a condition precedent to Lender’s
making any loans to Borrower under the Credit Agreement that
Borrower execute and deliver to Lender a security agreement in
substantially the form hereof; and
WHEREAS , Borrower wishes to grant security interests in
favor of Lender as herein provided;
NOW, THEREFORE
, in consideration of the promises
contained herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Borrower
and Lender agree as follows:
1.
Definitions
. All capitalized terms which are not defined
herein shall have the respective meanings provided for in the
Credit Agreement. The term “ State ” as
used herein means the State of Minnesota. All terms defined in
Article 9 of the Uniform Commercial Code of the State and
used herein shall have the same meanings as specified therein. The
term “ Event of Default ” as used herein
means any Event of Default described or listed in the Credit
Agreement, including the failure of Borrower to pay or
perform any of the Obligations as and when due to be paid or
performed under the terms of the Credit Agreement.
2.
Grant of Security
Interest . Borrower
hereby grants to Lender, to secure the payment and performance in
full of all of the Obligations, a security interest in, and pledges
and assigns to Lender, the following properties, assets and rights
of Borrower, wherever located, whether now owned or hereafter
acquired or arising, and all proceeds (including casualty insurance
proceeds) and products thereof (all of the same being hereinafter
called the “ Collateral ”): all personal
and fixture property of every kind and nature including without
limitation all goods (including inventory, equipment and any
accessions thereto), instruments (including notes), documents,
accounts (including health-care-insurance receivables), chattel
paper (whether tangible or electronic), deposit accounts,
letter-of-credit rights (whether or not the letter of credit is
evidenced by a writing), commercial tort claims, securities and all
other investment property, supporting obligations, any other
contract rights or rights to the payment of money (including
without limitation all United States Department of Agriculture
payments and
Commodity Credit Corporation payments such as
payments related to the bioenergy program described at 7 C.F.R.
Part 1424), including without limitation all management
contracts, supply contracts, off-take contracts, all railroad,
trucking and other transportation contracts, and all power
contracts, insurance claims and proceeds, tort claims, and all
general intangibles including, without limitation, all payment
intangibles, patents, patent applications, trademarks, trademark
applications, trade names, copyrights, copyright applications,
software, engineering drawings, service marks, customer lists,
goodwill, and all licenses, permits, agreements of any kind or
nature pursuant to which Borrower possesses, uses or has authority
to possess or use property (whether tangible or intangible) of
others or others possess, use or have authority to possess or use
property (whether tangible or intangible) of Borrower, and all
recorded data of any kind or nature, regardless of the medium of
recording including, without limitation, all software, writings,
plans, specifications and schematics. Lender acknowledges that the
attachment of its security interest in any commercial tort claim as
original collateral is subject to Borrower’s compliance with
Section 4.07 .
3.
Authorization to File Financing
Statements .
Borrower hereby
irrevocably authorizes Lender at any time and from time to time to
file in any Uniform Commercial Code jurisdiction any initial
financing statements and amendments thereto that (a) indicate
the Collateral (i) as all assets of Borrower or words of
similar effect, regardless of whether any particular asset
comprised in the Collateral falls within the scope of
Article 9 of the Uniform Commercial Code of the State or
such jurisdiction, or (ii) as being of an equal or lesser
scope or with greater detail, and (b) contain any other
information required by Article 9 of the
Uniform Commercial Code of the State or any other state for
the sufficiency or filing office acceptance of any financing
statement or amendment, including (i) whether Borrower is an
organization, the type of organization and any organization
identification number issued to Borrower and, (ii) in the case
of a financing statement filed as a fixture filing or indicating
Collateral as as-extracted collateral or timber to be cut, a
sufficient description of real property to which the Collateral
relates. Borrower agrees to furnish any such information to Lender
promptly upon request. Borrower also ratifies its authorization for
Lender to have filed in any Uniform Commercial Code
jurisdiction any like initial financing statements or amendments
thereto if filed prior to the date hereof.
4.
Other Actions
. Further to
insure the attachment, perfection and first priority of, and the
ability of Lender to enforce, Lender’s security interest in
the Collateral, Borrower agrees, in each case at Borrower’s
own expense, to take the following actions with respect to the
following Collateral:
4.01.
Notes and Tangible Chattel
Paper .
If Borrower at any time holds or
acquires any notes or tangible chattel paper, Borrower will
forthwith endorse, assign and deliver the same to Lender,
accompanied by such instruments of transfer or assignment duly
executed in blank as Lender may from time to time
specify.
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4.02.
Deposit
Accounts . For
each deposit account that Borrower at any time opens or maintains,
Borrower shall, at Lender’s request and option, pursuant to
an agreement in form and substance satisfactory to Lender,
either (a) cause the depositary bank to agree to comply at any
time with instructions from Lender to such depositary bank
directing the disposition of funds from time to time credited to
such deposit account, without further consent of Borrower, or
(b) arrange for Lender to become the customer of the
depositary bank with respect to the deposit account, with Borrower
being permitted, only with the consent of Lender, to exercise
rights to withdraw funds from such deposit account. The provisions
of this paragraph shall not apply to (i) any deposit account
for which Borrower, the depositary bank and Lender have entered
into a cash collateral agreement specially negotiated among
Borrower, the depositary bank and Lender for the specific purpose
set forth therein, (ii) deposit accounts for which Lender is
the depositary and (iii) deposit accounts specially and
exclusively used for payroll, payroll taxes and other employee wage
and benefit payments to or for the benefit of Borrower’s
salaried employees.
4.03.
Investment
Property . If
Borrower at any time holds or acquires any certificated securities,
Borrower will forthwith endorse, assign and deliver the same to
Lender, accompanied by such instruments of transfer or assignment
duly executed in blank as Lender may from time to time
specify. If any securities now or hereafter acquired by Borrower
are uncertificated and are issued to Borrower or its nominee
directly by the issuer thereof, Borrower will immediately notify
Lender thereof and, at Lender’s request and option, pursuant
to an agreement in form and substance satisfactory to Lender,
either (a) cause the issuer to agree to comply with
instructions from Lender as to such securities, without further
consent of Borrower or such nominee, or (b) arrange for Lender
to become the registered owner of the securities. If any
securities, whether certificated or uncertificated, or other
investment property now or hereafter acquired by Borrower are held
by Borrower or its nominee through a securities intermediary or
commodity intermediary, Borrower will immediately notify Lender
thereof and, at Lender’s request and option, pursuant to an
agreement in form and substance satisfactory to Lender, either
(i) cause such securities intermediary or (as the case
may be) commodity intermediary to agree to comply with
entitlement orders or other instructions from Lender to such
securities intermediary as to such securities or other investment
property, or (as the case may be) to apply any value
distributed on account of any commodity contract as directed by
Lender to such commodity intermediary, in each case without further
consent of Borrower or such nominee, or (ii) in the case of
financial assets or other investment property held through a
securities intermediary, arrange for Lender to become the
entitlement holder with respect to such investment property, with
Borrower being permitted, only with the consent of Lender, to
exercise rights to withdraw or otherwise deal with such investment
property. The provisions of this paragraph shall not apply to any
financial assets credited to a securities account for which Lender
is the securities intermediary.
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4.04.
Collateral in the Possession
of a Bailee . If
any goods are at any time in the possession of a bailee, Borrower
will promptly notify Lender thereof and, if requested by Lender,
will promptly obtain an acknowledgment from the bailee, in
form and substance satisfactory to Lender, that the bailee
holds such Collateral for the benefit of Lender and will act upon
the instructions of Lender, without the further consent of
Borrower.
4.05.
Electronic Chattel Paper and
Transferable Records. If Borrower at any time holds or acquires
an interest in any electronic chattel paper or any
“transferable record,” as that term is defined in
Section 201 of the Federal Electronic Signatures in Global and
National Commerce Act, or in Section 16 of the
Uniform Electronic Transactions Act as in effect in any
relevant jurisdiction, Borrower will promptly notify Lender thereof
and, at the request of Lender, will take such action as Lender
may reasonably request to vest control in Lender, under
Section 9-105 of the Uniform Commercial Code, of such
electronic chattel paper or control under Section 201 of the
Federal Electronic Signatures in Global and National Commerce Act
or, as the case may be, Section 16 of the
Uniform Electronic Transactions Act, as so in effect in such
jurisdiction, of such transferable record. Lender agrees with
Borrower that Lender will arrange, pursuant to procedures
satisfactory to Lender and so long as such procedures will not
result in Lender’s loss of control, for Borrower to make
alterations to the electronic chattel paper or transferable record
permitted under UCC Section 9-105 or, as the case may be,
Section 201 of the Federal Electronic Signatures in Global and
National Commerce Act or Section 16 of the
Uniform Electronic Transactions Act for a party in control to
make without loss of control, unless an Event of Default has
occurred and is continuing or would occur after taking into account
any action by Borrower with respect to such electronic chattel
paper or transferable record.
4.06.
Letter-of-Credit
Rights . If
Borrower is at any time a beneficiary under a letter of credit now
or hereafter issued in favor of Borrower, Borrower will promptly
notify Lender thereof and, at the request and option of Lender,
Borrower will, pursuant to an agreement in form and substance
satisfactory to Lender, either (i) arrange for the issuer and
any confirmer of such letter of credit to consent to an assignment
to Lender of the proceeds of any drawing under the letter of credit
or (ii) arrange for Lender to become the transferee
beneficiary of the letter of credit.
4.07
Commercial Tort
Claims . If
Borrower at any time holds or acquires a commercial tort claim,
Borrower will immediately notify Lender in a writing signed by
Borrower of the brief details thereof and grant to Lender in such
writing a security interest therein and in the proceeds thereof,
all upon the terms of this Agreement, with such writing to be in
form and substance satisfactory to Lender.
4.08
Other Actions as to any and
all Collateral . Borrower further agrees to take any other action
reasonably requested by Lender to insure the attachment,
perfection
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and first priority of, and the
ability of Lender to enforce, Lender’s security interest in
any and all of the Collateral including, without limitation,
(a) executing, delivering and, where appropriate, filing
financing statements and amendments relating thereto under the
Uniform Commercial Code, (b) causing Lender’s name
to be noted as secured party on any certificate of title for a
titled good if such notation is a condition to attachment,
perfection or priority of, or ability of Lender to enforce,
Lender’s security interest in such Collateral,
(c) complying with any provision of any statute, regulation or
treaty of the United States as to any Collateral if compliance with
such provision is a condition to attachment, perfection or priority
of, or ability of Lender to enforce, Lender’s security
interest in such Collateral, (d) obtaining governmental and
other third party consents and approvals, including without
limitation any consent of any licensor, lessor or other person
obligated on Collateral, (e) obtaining waivers from mortgagees
and landlords in form and substance satisfactory to Lender and
(f) taking all actions required by any earlier versions of the
Uniform Commercial Code or by other law, as applicable in any
relevant Uniform Commercial Code jurisdiction, or by other law
as applicable in any foreign jurisdiction.
5.
Relation to Other Security
Documents . The
provisions of this Agreement supplement the provisions of any real
estate mortgage or deed of trust granted by Borrower to Lender and
securing the payment or performance of any of the Obligations.
Nothing contained in any such real estate mortgage or deed of trust
derogates from any of the rights or remedies of Lender
hereunder.
6.
Representations and Warranties
Concerning Borrower’s Legal Status
. Borrower represents and warrants to Lender as
follows: (a) Borrower’s exact legal name is that
indicated on the signature page hereof, (b) Borrower is a
limited liability company organized under the laws of the State of
Iowa, (c) Borrower’s organizational identification
number is 263439, (d) Borrower’s tax payer
identification number is 02-0575361 and (e) Borrower’s
place of business, chief executive office, as well as mailing
address is 1822 43 rd Street SW, Mason City, Iowa
50401.
7.
Covenants Concerning
Borrower’s Legal Status . Borrower covenants with Lender as
follows: (a) without providing at least 30 days prior
written notice to Lender, Borrower will not change its name, its
place of business or, if more than one, chief executive office, or
its mailing address or organizational identification number if it
has one, (b) if Borrower does not have an organizational
identification number and later obtains one, Borrower shall
forthwith notify Lender of such organizational identification
number, and (c) Borrower will not change its type of
organization, jurisdiction of organization or other legal
structure.
8.
Representations and Warranties
Concerning Collateral, Etc . Borrower further represents and warrants to
Lender as follows: (a) Borrower is the owner of the
Collateral, free from any adverse lien, security interest or other
encumbrance, except for the security interest created by this
Agreement and other liens permitted by the Credit Agreement,
(b) to the extent that any of the Collateral constitutes, or
is the proceeds of, “farm products” as defined
in
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Section 9-102(a)(34) of the
Uniform Commercial Code of the State or any other relevant
state, Borrower has taken all required acts to ensure that
Lender’s security interest in such Collateral is first and
prior, (c) none of the account debtors or other persons
obligated on any of the Collateral is a governmental authority
subject to the Federal Assignment of Claims Act or like federal,
state or local statute or rule in respect of such Collateral,
(d) Borrower holds no commercial tort claim except as set
forth on Schedule 8(d) and (e) Borrower has
at all times operated its business in compliance with all
applicable provisions of the feder