EXHIBIT 10.2
SECURITY AGREEMENT
SECURITY AGREEMENT dated effective as of April 8, 1999, by and
between MOBILE PET SYSTEMS, INC., a Delaware corporation ("Lessee") and FINOVA
CAPITAL CORPORATION, a Delaware corporation ("Lessor"), executed pursuant to
that certain Equipment Lease No. 4125 between Lessee and Lessor, as the same may
be supplemented from time to time by the addition of Lease Schedules referencing
further items of equipment which shall become subject thereto (as so
supplemented, the "Lease").
1. DEFINITIONS. All terms used herein which are defined in
the Arizona Uniform Commercial Code (the "Code") shall have the same meanings
herein as in the Code unless the context in which such terms are used herein
indicates otherwise. All capitalized terms defined in the Lease and which are
used as defined terms in this Security Agreement, unless otherwise defined
herein, shall have the meanings ascribed to them in the Lease, the applicable
provisions of which are incorporated herein.
2. SECURITY INTEREST. To secure the performance and payment
of all obligations of Lessee pursuant to the Lease (collectively, the "Lessee's
Obligations"), Lessee hereby grants to Lessor a security interest in all of
Lessee's right, title and interest in the property and property rights more
fully described on EXHIBIT A attached hereto and incorporated herein by
reference (collectively, the "Collateral"). Such security interests shall be
superior and prior to all other liens.
3. REPRESENTATIONS, WARRANTIES AND COVENANTS. Lessee hereby
represents, warrants and covenants to Lessor as follows:
3.1 Lessee is the owner of the Collateral, except the
portion thereof consisting of after-acquired property, and Lessee will be
the owner of such after-acquired property, free from any lien except the
lien created hereby in favor of Lessor.
3.2 There is listed in EXHIBIT B attached hereto the
location of the chief place of business of Lessee and, if different, the
location(s) where any Tangible Collateral (as hereafter defined) and the
books and records of Lessee are kept. Lessee shall not (a) change any
such locations(s), (b) open any new places of business, (c) change its
corporate name, or (d) conduct a business under any other names or use
any trade names or fictitious names, other than its own corporate name,
without, in each case, giving to Lessor
thirty days' prior written notice of any such change. "Tangible
Collateral" consists of all items which would be considered "goods,"
"equipment," "inventory" or "fixtures" under the Code.
3.3 Lessee will at all times keep the Tangible
Collateral in good operating condition and repair, operate and maintain
the same in compliance with all laws and insurance policies applicable
thereto, and pay promptly when due all taxes, insurance premiums and
other governmental charges upon or relating to any of the property,
income or receipts of Lessee.
4. INSURANCE. Lessee shall maintain such insurance, written
by such insurers and in such amounts and on such forms as are satisfactory to
Lessor. The net proceeds collected by Lessor, after deducting all costs and
expenses (including attorneys' fees) of collection shall be applied, at Lessor's
option, either toward replacing or restoring the Collateral, in a manner and on
terms satisfactory to Lessor, or to the payment of Lessee's obligations. Any
proceeds applied to the payment of Lessee's Obligations shall be applied in such
manner as Lessor may elect. In no event shall such application relieve Lessee
from payment in full of all installments of rent coming due under the Lease.
5. PROTECTION OF COLLATERAL. In the event of the failure of
Lessee to (a) maintain in force and pay for any insurance which Lessee is
required to provide pursuant to this Security Agreement or the Lease, (b) keep
the Tangible Collateral in good repair and operating condition, (c) keep the
Collateral free from any other liens, and (d) pay when due all taxes, levies and
assessments on or in respect of the Collateral, Lessor, at its option, may (but
shall not be required to) procure and pay for such insurance, place the Tangible
Collateral in good repair and operating condition, or otherwise make good any
other aforesaid failure of Lessee and all sums advanced by Lessor, with interest
thereon at the rate of fourteen percent (14%) per annum, shall be part of
Lessee's Obligations, payable on demand.
6. FINANCING STATEMENTS; FURTHER ASSURANCES. Lessee,
concurrently with the execution of this Security Agreement, and from time to
time thereafter as requested by Lessor, shall execute and deliver to Lessor such
financing statements, continuation statements, amendments to financing
statements and other documents, in form satisfactory to Lessor, as Lessor may
require to perfect and continue in effect the lien of Lessor. Lessee
irrevocably appoints Lessor its attorney-in-fact, in the name of Lessee or
Lessor, to execute and file from time to time any such financing statements,
continuation statements and amendments thereto, which appointment shall be
deemed to be a power coupled with an interest.
7. EVENTS OF DEFAULT. Lessee shall be in default under this
Security Agreement upon the occurrence of (i) any failure of Lessee to perform
its
2
obligations hereunder or (ii) any default under the Lease (collectively herein,
an "Event of Default").
8. REMEDIES UPON DEFAULT. Upon the occurrence of an Event of
Default, Lessor shall have all the rights and remedies of a secured party under
the Arizona Uniform Commercial Code and all other rights and remedies accorded
to a secured party in equity or law. Upon the request of Lessor, Lessee shall
assemble and make the Tangible Collateral available to Lessor at a place
reasonably convenient to Lessor. Any notice of sale or other disposition of the
Collateral given not less than ten (10) days prior to such proposed action shall
constitute reasonable and fair notice of such action. Lessee shall be liable
for any deficiency. Lessee expressly waives any right to have the Collateral
marshalled on any foreclosure, sale or other enforcement hereof.
9. NOTICES. All notices and communications under this
Security Agreement shall be given in accordance with the Lease.
10. SUCCESSORS AND ASSIGNS. This Security Agreement shall be
binding upon and inure to the benefit of and be enforceable by the respective
successors and assigns of Lessor and Lessee.
11. APPLICABLE LAW. THIS SECURITY AGREEMENT SHALL BE GOVERNED
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF ARIZONA, EXCEPT TO THE
EXTENT THAT APPLICABLE LAW REQUIRES THAT THE LAWS OF ANOTHER JURISDICTION GOVERN
THE PERFECTION AND ENFORCEMENT OF THE SECURITY INTERESTS GRANTED TO LESSOR.
12. TERMINATION. This Security Agreement shall terminate upon
the payment in full of Lessee's Obligations.
13. COUNTERPARTS; FACSIMILE EXECUTION. This Security Agreement
may be executed in any number of separate counterparts, all of which, when taken
together, shall constitute one and the same instrument, admissible into
evidence, notwithstanding the fact that all parties did not sign the same
counterpart. Delivery of an executed counterpart of this Security Agreement by
telefacsimile shall be equally as effective as delivery of a manually executed
counterpart of this Security Agreement. Any party delivering an executed
counterpart of this Security Agreement by telefacsimile shall also deliver a
manually executed counterpart of this Security Agreement, but the failure to
deliver a manually executed counterpart shall not affect the validity,
enforceability, and binding effect of this Security Agreement.
3
This Security Agreement has been executed and delivered by each of
the parties hereto by a duly authorized officer of each such party on the date
first set forth above.
LESSOR: LESSEE:
FINOVA CAPITAL CORPORATION, MOBILE PET SYSTEMS, INC., a
a Delaware corporation Delaware corporation
By: /s/ Xxxx X. XxXxxx By: /s/ Xxxx X. Xxxxx
--------------------- ---------------------
Name: Xxxx X. XxXxxx Name: Xxxx X. Xxxxx
Title: Vice President Title: CEO/PRESIDENT
Address: 000 Xxxxx Xxxxxx Xxxxx Address: 0000 Xxxxxxx Xxxxxx Xxxxx
Xxxxx 0000 ---------------------------
Xxxxxxx, Xxxxxxxx 00000 Xxx Xxxxx, XX 00000
Attn: Vice President - Group ---------------------------
Counsel
---------------------------
Telecopy No.: (000) 000-0000
---------------------
Telecopy No.: (000) 000-0000
4
EXHIBIT A
COLLATERAL
A. All equipment of Lessee, whether now owned or hereafter
acquired and wherever located, including, but not limited to, all present and
future machinery, vehicles, furniture, fixtures, manufacturing equipment, office
and record keeping equipment, parts, and tools;
B. All general intangibles of Lessee, whether now owned or
hereafter acquired, including, but not limited to, applications for patents,
patents, copyrights, trademarks, trade secrets, good will, trade names, customer
lists, permits and franchises, and the right to use Lessee's name;
C. All inventory of Lessee, whether now owned or hereafter
acquired and wherever located, including, without limitation, all inventory
wherever located in which Lessee now has or hereafter may acquire any right,
title or interest, including, without limitation, all goods and other personal
property now or hereafter owned by Lessee which are held for sale or lease or
are furnished or are to be furnished under a contract of service or which
constitute raw materials, stock-in-trade, work in process or materials used or
consumed or to be used or consumed in Lessee's business, or in the processing,
packaging or shipping of the same, and all finished goods;
D. Each and every right of Lessee to the payment of money,
including, but not limited to, all present and future debt instruments, chattel
paper, accounts, loans and obligations receivable, and tax refunds, whether such
right to payment now exists or hereafter arises, whether such right to payment
arises out of a sale, lease or other disposition of good or other property by
Lessee, out of a rendering of services by Lessee, out of a loan by Lessee, out
of the overpayment of taxes or other liabilities of Lessee, or otherwise arises
under any contract or agreement, whether such right to payment is or is not
already earned by performance, and howsoever such right to payment may be
evidenced, together with all other rights and interests (including all liens and
security interests) which Lessee may at any time have by law or agreement
against any account debtor or other obligor obligated to make any such payment
or against any of the property of such account debtor or other obligor; and
E. All of Lessee's right, title and interest in and to any
fixtures;
together with all substitutions and replacements for and products of any of the
foregoing property and together with all proceeds of the sale, lease or other
disposition of any and all of the foregoing property, any and all proceeds of
insurance thereon and, in the case of all Tangible Collateral, together with all
accessions and, together with (i) all accessories, attachments, additions,
parts, equipment and repairs now or hereafter attached or affixed to or used in
connection with any such collateral, and (ii) all warehouse receipts, bills of
lading and other documents of title now or hereafter covering such collateral.
2
EXHIBIT B
Chief Place of Business of Lessee:
0000 XXXXXXX XXXXXX XXXXX
---------------------------
XXX XXXXX, XX 00000
---------------------------
SUITE 205
---------------------------
Location of Tangible Collateral and Books and Records of Lessee:
0000 XXXXXXX XXXXXX XXXXX
---------------------------
XXX XXXXX, XX 00000
---------------------------
SUITE 205
---------------------------
