SECURITY AGREEMENT
This SECURITY AGREEMENT is entered into as of November 8, 2001, by Cash
Systems, Inc., a Delaware corporation (the "Debtor"), in favor of the
XxxxxxxXxxx.xxx, Inc., a Minnesota corporation ("Secured Party").
RECITALS
A. Secured Party has agreed to make a loan of up to $500,000 to the
Debtor and its wholly owned subsidiary, Cash Systems, Inc., a Minnesota
corporation (the "Subsidiary").
To secure repayment of Secured Party's loan, the Debtor has agreed to
grant to Secured Party a security interest in the property described below.
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the Debtor agrees as follows:
1. Grant of Security Interest. The Debtor grants to Secured Party a
security interest in the following described property of the Debtor (the
"Collateral"):
Accounts (rights to payment for goods sold or leased or for services
rendered whether or not earned by performance) and, to the extent not
included with "Accounts" by law, "Contract Rights" now existing or
hereafter at any time acquired or arising;
Chattel Paper (any writing or writings evidencing both a monetary
obligation and a security interest in specific goods, a security
interest in specific goods and license of software used in the goods,
a lease of specific goods, or a lease of specific goods and license
of software used in the goods) now owned or hereafter acquired;
Deposit Accounts (demand, time, savings, passbook, or similar account
maintained with a bank);
Equipment and Fixtures (goods used or bought for use primarily in
business whether or not an interest therein arises under real property
law) now owned or hereafter acquired;
General Intangibles (any personal property other than accounts,
contract rights, chattel paper, deposit accounts, documents, goods,
instruments, money, payment intangibles and software, including but
not limited to things in or choses in action, licenses, rights of all
types under leases and license agreements and all licenses, trademarks,
trade names and copyrights) now or hereafter arising;
Inventory (property held for sale or lease, or furnished or to be
furnished under contracts of service, or held as raw materials, work
in process or materials used or consumed or to be used or consumed in
business) now owned or hereafter acquired;
Investment Property (securities, security entitlements, securities
accounts, commodity contracts, commodity accounts, stocks, bonds,
mutual fund shares, money market shares and U.S. Government securities);
All Proceeds (whatever is received upon the sale, exchange, collection or
other disposition of Collateral or Proceeds, including but not limited
to insurance payable by reason of loss or damage to the Collateral)
whether cash or non-cash proceeds, including but not limited to
Inventory, Equipment or Fixtures acquired with cash proceeds;
to secure payment to the Secured Party of the "Secured Obligations" as defined
below. Definitions in the Uniform Commercial Code as adopted and in effect in
the State of Minnesota shall apply to words and phrases used in this Security
Agreement.
2. The Secured Obligations. Secured Party's security interest in the
Collateral shall secure payment and performance of each and every debt,
liability and obligation of Debtor and Subsidiary to Secured Party, due or to
become due, direct or indirect, absolute or contingent, joint or several,
howsoever created, arising or evidenced, now existing or hereafter at any time
created, arising or incurred, under that certain Convertible Promissory Note
executed by Debtor and Subsidiary in favor of Secured Party, of even date
herewith, in the original principal amount of up to Five Hundred Thousand
Dollars ($500,000) (the "Secured Obligations").
3. Representations, Warranties and Covenants. Debtor represents,
warrants and agrees that so long as any of the Secured Obligations remain
outstanding and unsatisfied:
(a) The Debtor shall be the sole owner of the Collateral free and
clear of all levies, attachments, liens, charges, encumbrances and
security interests of every kind or character other than the security
interest granted to the Secured Party hereby, except for the liens set
forth on Exhibit A, as such liens may be extended, amended or
supplemented from time to time.
(b) The Debtor has full power and authority to execute this
Security Agreement and to subject the Collateral to the security
interest created hereby, except to the extent that the assignment of
certain Contract Rights may be restricted by applicable rules and
regulations of gaming authorities and entities with whom the Company
has contracted. Except as set forth on Exhibit A, Debtor has not
previously granted a security interest in favor of any creditor other
than the Secured Party covering all or any part of the Collateral.
(c) The location of the chief executive office of Debtor as well
as the location where Debtor maintains all books and records regarding
the Collateral is set forth on the signature page hereof and will not
be changed without prior written notice to the Secured Party.
(d) Debtor's true name is as set forth below. Neither Debtor nor
any predecessor in title to any of the Collateral has executed any
financing statements which remain of record or security agreements
which remain in effect as "Debtor" covering any of the Collateral in
any other name within the past five years.
(e) Debtor will at any time or times hereafter, execute such
financing statements and other instruments and perform such acts as
the Secured Party may request to establish and maintain an attached,
perfected and first priority (except as set forth on Exhibit A)
security interest in the Collateral and will pay all costs of filing
and recording. Debtor authorizes the Secured Party to file all of the
Secured Party's financing statements and amendments thereto relative
to the Collateral or any part thereof, in such form and substance as
the Secured Party, in its sole discretion, may determine.
(f) Debtor shall not transfer or otherwise dispose of the
Collateral outside its usual and ordinary course of business without
the prior written consent of the Secured Party.
(g) Debtor shall keep the Collateral free and clear of all levies,
attachments, liens, charges, encumbrances and security interests of
every kind or character (except for the security interest granted to
Secured Party hereunder and the existing security interest set forth
on Exhibit A); and shall forever defend title thereto against claims
of all persons.
(h) Debtor shall maintain all records, instruments or other
documentation evidencing or otherwise relating to the Collateral at
Debtor's chief executive office and will not remove any part thereof
without the prior written consent of the Secured Party.
(i) At any time and from time to time, upon the written request
of the Secured Party, the Debtor will promptly and duly execute and
deliver such further instruments and documents and take such further
actions as the Secured Party reasonably may request for the purposes
of obtaining or preserving the full benefits of this Security Agreement
and of the rights and powers granted by this Security Agreement.
(j) Debtor and Subsidiary shall at all times maintain a minimum
aggregate cash balance of $300,000.00 in their Deposit Accounts,
including ACH amounts received by the bank for deposit to their
Deposit Accounts.
4. Secured Party's Authority; Power of Attorney. Upon the occurrence
of an Event of Default, the Secured Party shall have the authority, but shall
not be obligated to:
(a) demand, collect, receive and receipt for, compound, compromise,
settle and prosecute and discontinue any suits or proceedings in respect
of any or all of the Collateral in the name of Debtor or otherwise; and
(b) take any action which the Secured Party may deem necessary or
desirable in order to realize on the Collateral, including, without
limitation, performance of any contract and endorsement in the name
of Debtor of any checks, drafts, notes or other instruments or documents
received on account of the Collateral.
Debtor hereby irrevocably appoints the Secured Party as Debtor's agent and
attorney-in-fact, with full authority in the place and stead of Debtor and in
the name of Debtor, or otherwise, from time to time in the Secured Party's
discretion to take any action and to execute any instrument which the Secured
Party may deem necessary or advisable in pursuing or taking the foregoing
rights and actions.
All powers, authorizations and agencies contained in this Security
Agreement are coupled with an interest and are irrevocable until this Security
Agreement is terminated and the liens created hereby are released.
5. Default/Event of Default. The terms "default" or "Event of Default"
shall mean (a) any default in performance of any of Debtor's obligations
hereunder or under the Secured Obligations or any default of any provision of
the Pledge Agreement delivered to and for the benefit of Secured Party in
connection with the Secured Obligations, provided that a default shall not
occur if Debtor remedies the violation or the failure to perform within
five (5) business days after receiving written notice from Secured Party by
personal delivery or certified mail; or (b) cessation of business operations,
termination of business, dissolution or insolvency of Debtor, the commission
of any act of bankruptcy by Debtor, or the commencement of any bankruptcy,
receivership or similar proceeding under bankruptcy or Debtor's relief laws by
or against Debtor. Upon the happening of any of the foregoing events, Secured
Party may, at its option, and without notice to or demand on Debtor, do any
one or more of the following immediately:
(a) Secured Party may exercise in respect of the Collateral, in
addition to other rights and remedies otherwise available to it, all
the rights and remedies of a secured party under the Uniform Commercial
Code as adopted and in effect in the State of Minnesota (the "UCC").
(b) Without limiting the generality of the foregoing, the Secured
Party may, upon default, to the fullest extent permitted by applicable
law, without notice, hearing or process except as specified below,
sell the Collateral or any part thereof in one or more parcels at public
or private sale, for cash, on credit or for future delivery, and upon
such other terms as the Secured Party may deem commercially reasonable,
and the Secured Party may purchase all or any part of the 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 purchase
price against the Secured Obligations. The Secured Party may adjourn
any public or private sale from time to time by announcement at the time
and place fixed therefor, and such sale may, with notice, be made at the
time and place to which it was so adjourned. The Secured Party may
abandon any such proposed sale. The Secured Party may also elect to
retain the Collateral in partial or full satisfaction of the Secured
Obligations and Debtor agrees not to oppose such election. Debtor
acknowledges that any private sales of Collateral effected by the
Secured Party may result in terms less favorable to a seller than public
sales but Debtor agrees that such private sales shall nevertheless be
deemed commercially reasonable.
(c) If any notification of intended disposition of any of the
Collateral is required by law, such notification shall be deemed
reasonably and properly given if deposited in the United States Postal
Service at least ten (10) days before such disposition, postage prepaid,
addressed to the Debtor at the address set forth on the signature page
hereof. Such disposition shall be established by affidavit of a
representative of Secured Party, receipts or other reasonable method.
(d) Debtor agrees to pay all costs and expenses incurred by the
Secured Party, including reasonable attorney's fees and court costs,
in connection with any sale held pursuant to this Security Agreement
or otherwise in connection with enforcing the rights of the Secured
Party hereunder.
(e) The rights and remedies of the Secured Party hereunder are
cumulative and nonexclusive and the exercise of any one or more of
the remedies provided for herein or under the UCC shall not be
construed as a waiver of any of the other remedies of the Secured Party
so long as any part of the Secured Obligations remain unsatisfied. No
failure on the part of the Secured Party to exercise, and no delay in
exercising, any right, power or remedy hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any such
right, power or remedy by the Secured Party preclude any other or
further exercise thereof or the exercise of any other right, power or
remedy.
(f) Any payments or proceeds received by the Secured Party from the
Collateral shall be applied to the payment of costs and expenses
incurred by the Secured Party in connection with performing, managing,
maintaining or selling the Collateral, including reasonable attorneys'
fees and expenses, and the balance, if any, shall be applied by the
Secured Party to payment of the Secured Obligations, in order of
application as the Secured Party shall determine.
6 No Waiver. Any forbearance or failure to delay by Secured Party in
exercising any right, power or remedy shall not preclude the further exercise
thereof, and every right, power or remedy of Secured Party shall continue
in full force and effect until such right, power or remedy is specifically
waived by any instrument in writing executed by Secured Party
7. Debtor's Waiver of Rights. Except as otherwise set forth herein, to
the fullest extent permitted by law, the Debtor waives the benefit of all laws
now existing or that may subsequently be enacted providing for (a) any
appraisement before sale of any portion of the Collateral, (b) any extension
of the time for the enforcement of the collection of the indebtedness or the
creation or extension of a period of redemption from any sale made in
collecting such debt and (c) exemption of any portion of the Collateral from
attachment, levy or sale under execution or exemption from civil process.
Except as otherwise set forth herein, to the fullest extent the Debtor may do
so, the Debtor agrees that the Debtor will not at any time insist upon, plead,
claim or take the benefit or advantage of any law now or hereafter in force
providing for any appraisement, valuation, stay, exemption, extension or
redemption, or requiring foreclosure of this Security Agreement before
exercising any other remedy granted hereunder and the Debtor, for the Debtor
and its successors and assigns, and for any and all persons ever claiming any
interest in the Collateral, to the extent permitted by law, hereby waives and
releases all rights of redemption, valuation, appraisement, stay of execution,
notice of election to mature or declare due the whole of the Secured
Obligations and marshalling in the event of foreclosure of the liens hereby
created.
Executed and delivered at Minneapolis, Minnesota as of the 8th day of
November, 2001.
CASH SYSTEMS, INC.
a Delaware corporation
By: /s/ Xxxxx Xxxxx
--------------------------
Name: Xxxxx Xxxxx
--------------------------
Title: President
--------------------------
Address:
0000 Xxxx Xxxxxx Xxxx 00, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxxx 00000
EXHIBIT A
Secured Party Collateral Date Filed Filing Office File No.
----------------------------------------------------------------------------
Fidelity Bank Account receivable; 6/16/2000 Minnesota 2236807
0000 Xxxxxxxx Xxx. contract rights; Sec. of Xxxxx
Xxxxx, XX 00000 inventory; equipment
machinery; fixtures;
general intantibles -
all including proceeds
and products
Fidelity Bank Account receivable; 10/28/1999 Minnesota 2173634
0000 Xxxxxxxx Xxx. contract rights; Sec. of Xxxxx
Xxxxx, XX 00000 inventory; equipment
machinery; fixtures;
General intangibles -
all including proceeds
and products
A C Financial Corp Equipment 10/19/1999 Minnesota 2171112
000 Xxxx Xxxxxx Sec. of State
XX xxx 000
Xxxx, XX 00000
GNB Financial Co.
(Assignee)
000 0xx Xx
Xxxxxx Xxxxxx, XX 00000
A C Financial Corp Equipment 09/30/1999 Minnesota 2166176
000 Xxxx Xxxxxx Sec. of State
XX xxx 000
Xxxx, XX 00000
GNB Financial Co.
(Assignee)
000 0xx Xx
Xxxxxx Xxxxxx, XX 00000
Freedom Financial Equipment 03/16/1999 Minnesota 2114209
Leasing Corporation Sec. of State
0000 Xxxx Xx., Xxxxx X
Xxxxxxxxx, XX 00000
The Manifest Group
(Assignee)
000 Xxxx Xxxxxxxx
Xxxxxxxx, XX 00000
Fidelity Bank Account receivable; 03/01/1999 Minnesota 2110443
0000 Xxxxxxxx Xxx. contract rights; (Amend. Sec. of Xxxxx
Xxxxx, XX 00000 inventory; equipment filed
machinery; fixtures; 10/01/1999
general intangibles #2166546)
all including
proceeds and products
