EXHIBIT 10.15
SECURITY AGREEMENT
THIS SECURITY AGREEMENT (this "SECURITY AGREEMENT") dated August 29, 2003
is entered into by and between Xxxxxxxxx Mobile Fueling, Inc. ("Company"), a
Florida corporation having its principal place of business at 000 X. Xxxxxxx
Xxxxx Xxxx, Xxxxx 000, Xxxx Xxxxxxxxxx, Xxxxxxx 00000, and The Bank of Cherry
Creek, a Branch of Western National Bank, a Colorado corporation, located at
0000 Xxxx 0xx Xxxxxx, Xxxxxx, XX 00000 (the "Trustee"), as indenture trustee for
the holders (the "HOLDERS") of certain promissory notes issued by Company to
Holders due August 28, 2008, (as amended, supplemented or otherwise modified
from time to time, the "NOTES") pursuant to an indenture between Company and
Trustee of even date herewith (the "INDENTURE").
WHEREAS, Company wishes to grant to the Trustee, for the benefit of
Holders, a first priority security interest in Company's specialized fueling
truck fleet and related equipment (the "VEHICLES") and other property of Company
to secure the Notes, and
WHEREAS, Company and Congress Financial Corporation (Florida) ("Congress")
are parties to that certain Loan and Security Agreement by and between Company
and Congress, dated September 26, 2002, as amended (as it may be amended from
time to time, the "CONGRESS AGREEMENT") and, along with certain other persons, a
Subordination Agreement effective as of January 21, 2003 (the "SUBORDINATION
AGREEMENT"); and
WHEREAS, in the Congress Agreement, Company previously assigned to Congress
a security interest in certain patents (the "PATENTS") relating to the Vehicles
as additional security for the amounts owed by Company to Congress under the
Congress Agreement, but Congress and Company have entered into an amendment to
the Congress Agreement, which includes a release of Congress' security interest
in the Patents so that the Patents can be assigned to Holders as part of the
collateral for the Notes.
NOW, THEREFORE, in consideration of the foregoing premises and to induce
Holders to purchase the Notes, Company hereby agrees as follows:
SECTION 1. DEFINITIONS. As used herein, the following terms shall have the
following meanings, and shall be equally applicable to both the singular and
plural forms of the terms defined:
APPLICABLE LAW shall mean the laws of the State of Florida (or any other
jurisdiction whose laws are mandatorily applicable notwithstanding the parties'
choice of Florida law) or the laws of the United States of America, whichever
laws allow the greater interest, as such laws now exist or may be changed or
amended or come into effect in the future.
BUSINESS DAY shall mean any day other than a Saturday, Sunday or public
holiday or the equivalent for banks in New York, New York.
EVENT OF DEFAULT shall mean any event specified in SECTION 6 hereof.
GAAP shall mean generally accepted accounting principles in the United
States of America, as in effect from time to time.
LOAN DOCUMENTS shall mean, collectively, this Security Agreement, the
Securities Purchase Agreement between Holders and Company of even date herewith
(the "SECURITIES PURCHASE AGREEMENT") evidencing the sale of the Notes and the
Stock Purchase Warrants (the "WARRANTS") by Company to Holders, the Indenture,
the Notes, the Warrants and all other documents, agreements, certificates,
instruments and opinions executed and delivered in connection therewith, as the
same may be modified, extended, restated or supplemented from time to time.
MATERIAL ADVERSE CHANGE shall mean, with respect to any Person, a material
adverse change in the business, prospects, operations, results of operations,
assets, liabilities or condition (financial or otherwise) of such Person taken
as a whole.
MATERIAL ADVERSE EFFECT shall mean, with respect to any Person, a material
adverse effect on the business, prospects, operations, results of operations,
assets, liabilities or condition (financial or otherwise) of such Person taken
as a whole.
OBLIGATIONS shall mean all indebtedness, obligations and liabilities of
Company under the Note and under this Security Agreement, whether on account of
principal, interest, indemnities, fees (including, without limitation,
attorneys' fees, remarketing fees, origination fees, collection fees and all
other professionals' fees), costs, expenses, taxes or otherwise.
PERSON shall mean any individual, sole proprietorship, partnership, joint
venture, trust, unincorporated organization, association, corporation,
institution, entity, party or government (including any division, agency or
department thereof), and the successors, heirs and assigns of each.
SECTION 2. CREATION OF SECURITY INTEREST; COLLATERAL. Company hereby
assigns and grants to Holders a continuing general, first priority lien on and
security interest in, all Company's right, title and interest in and to the
collateral described in the next sentence (the "COLLATERAL") to secure the
payment and performance of all the Obligations. The Collateral consists of (i)
the Vehicles, as listed on SCHEDULE A hereto, including future additions, parts,
accessories, attachments, substitutions, repairs, improvements and replacements
to or of any Vehicle, and any proceeds from the sale, assignment, or other
transfer of one or more Vehicles, including, without limitation, proceeds of
insurance and (ii) the Patents.
SECTION 3. COMPANY'S REPRESENTATIONS AND WARRANTIES.
SECTION 3.1 GOOD STANDING; QUALIFIED TO DO BUSINESS. Company (i) is a
duly organized, validly existing, corporation in good standing under the laws of
the State of Florida, (ii) has the power and authority to own its properties and
assets and to transact the businesses in which it is presently, or proposes to
be, engaged and (iii) is duly qualified and authorized to do business and is in
good standing in every jurisdiction in which the failure to be so qualified
could have a Material Adverse Effect on (a) Company, (b) Company's ability to
perform its obligations under the Loan Documents or (c) the rights of Holders or
the Trustee under this Agreement.
SECTION 3.2 DUE EXECUTION, ETC. The execution, delivery and
performance by Company of each of the Loan Documents to which it is a party are
within the powers of
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Company, do not contravene the Articles of Incorporation or Bylaws of Company,
and do not (i) violate any law or regulation, or any order or decree of any
court or governmental authority, (ii) conflict with or result in a breach of, or
constitute a default under, any material indenture, mortgage or deed of trust or
any material lease, agreement or other instrument binding on Company or any of
its properties, or (iii) require the consent, authorization by or approval of or
notice to, or filing or registration with, any governmental authority or other
Person except for Congress. This Security Agreement is, and each of the other
Loan Documents to which Company is or will be a party when delivered will be,
the legal, valid and binding obligation of Company enforceable against Company
in accordance with its terms.
SECTION 3.3 SOLVENCY; NO LIENS. On the date hereof, Company is
solvent, is paying its debts as they become due and has sufficient capital to
conduct its business; the security interests granted herein constitute and shall
at all times constitute the first and only liens on the Collateral; and Company
is, or will be at the time such Collateral is acquired by it, the absolute owner
of the Collateral with full right to pledge, sell, consign, transfer and create
a security interest therein, free and clear of any and all claims or liens in
favor of any other Person.
SECTION 3.4 NO JUDGMENTS, LITIGATION. No judgments are outstanding
against Company nor is there now pending or, to the best of Company's knowledge
after diligent inquiry, threatened any litigation, contested claim, or
governmental proceeding by or against Company except judgments and pending or
threatened litigation, contested claims and governmental proceedings which would
not, in the aggregate, have a Material Adverse Effect on Company.
SECTION 3.5 NO DEFAULTS. On the date hereof, Company is not in
material default under any material contract, lease, or commitment to which it
is a party or by which it is bound. Company knows of no dispute regarding any
contract, lease, or commitment which could have a Material Adverse Effect on
Company.
SECTION 3.6 COLLATERAL LOCATIONS. On the date hereof, each item of the
Collateral is located or based at the place of business specified for such item
in SCHEDULE A hereto.
SECTION 3.7 NO EVENTS OF DEFAULT. No Event of Default has occurred and
is continuing nor has any event occurred which, with the giving of notice or the
passage of time, or both, would constitute an Event of Default.
SECTION 3.8 NO LIMITATION ON HOLDERS' RIGHTS. Except as permitted
herein, none of the Collateral is subject to contractual obligations that may
restrict or inhibit Holders' or Trustee's rights or abilities to sell or dispose
of the Collateral or any part thereof after the occurrence of an Event of
Default.
SECTION 3.9 PERFECTION AND PRIORITY OF SECURITY INTEREST. This
Security Agreement creates a valid and, upon completion of all required filings
of financing statements, perfected, first priority and exclusive security
interest in the Collateral, securing the payment of all the Obligations.
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SECTION 3.10 IDENTIFYING NUMBERS. SCHEDULE A hereto sets forth the
true and correct model number and serial number, vehicle identification number
or other identifying number of each item of Collateral.
SECTION 4. COVENANTS OF COMPANY.
SECTION 4.1 EXISTENCE, ETC. Company will (i) maintain its existence
and its current yearly accounting cycle, (ii) maintain in full force and effect
all licenses, bonds, franchises, leases, trademarks, patents, contracts and
other rights necessary or desirable to the profitable conduct of its business,
(iii) continue in the same general lines of business as those presently
conducted by it and (iv) comply with all applicable laws and regulations of any
federal, state or local governmental authority, except for such laws and
regulations the violations of which would not, in the aggregate, have a Material
Adverse Effect on Company.
SECTION 4.2 NOTICE TO TRUSTEE AND HOLDERS.
(a) As soon as possible, and in any event within five (5) days
after Company learns of it, Company will give written notice to Trustee and
Holders of (i) any proceeding instituted or threatened to be instituted by
or against Company in any federal, state, local or foreign court or before
any commission or other regulatory body (federal, state, local or foreign)
which, in the opinion of management, could have a Material Adverse Effect
on Company, (ii) the occurrence of any Material Adverse Change with respect
to Company and (iii) the occurrence of any Event of Default or event or
condition which, with notice or lapse of time or both, would constitute an
Event of Default, together with a statement of the action which Company has
taken or proposes to take with respect thereto.
(b) Company further covenants to provide all such notices as
required by the Indenture and the Notes.
SECTION 4.3 MAINTENANCE OF BOOKS AND RECORDS. Company will maintain
books and records pertaining to the Collateral in such detail, form and scope as
Trustee shall require in Trustee's commercially reasonable judgment. Company
agrees that Trustee or Trustee's agents, prior to an event of default and upon
five (5) days notice, may enter upon Company's premises at any time and from
time to time during normal business hours, and at any time on and after the
occurrence of an Event of Default, for the purpose of inspecting the Collateral
and any and all records pertaining thereto.
SECTION 4.4 INSURANCE. Company will maintain insurance on the
Collateral under such policies of insurance, with such insurance companies, in
such amounts and covering such risks as are at all times satisfactory to
Trustee. All such policies shall be made payable to Trustee, for the benefit of
Holders, in case of loss, under a standard non-contributory "lender" or "secured
party" clause and are to contain such other provisions as Trustee may reasonably
require to protect Holders' interests in the Collateral and to any payments to
be made under such policies. True copies of all original insurance policies are
to be delivered to Trustee, premium prepaid, with the loss payable endorsement
in favor of Trustee, for the benefit of Holders, and shall provide for not less
than thirty (30) days' prior written notice to Trustee and Holders of any
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alteration or cancellation of coverage. If Company fails to maintain such
insurance, Trustee may arrange for (at Company's expense and without any
responsibility on Trustee's or Holders' part for) obtaining the insurance. If
Company is in default, and unless Trustee shall otherwise agree with Company in
writing, Trustee shall have the sole right, in the name of Holders or Company,
to file claims under any insurance policies, to receive and give acquittance for
any payments that may be payable thereunder, and to execute any endorsements,
receipts, releases, assignments, reassignments or other documents that may be
necessary to effect the collection, compromise or settlement of any claims under
any such insurance policies.
SECTION 4.5 TAXES. Company will pay, when due, all taxes, assessments,
claims and other charges (the "TAXES") lawfully levied or assessed against
Company or the Collateral other than Taxes that are being diligently contested
in good faith by Company by appropriate proceedings promptly instituted and for
which an adequate reserve is being maintained by Company in accordance with
GAAP. If any Taxes remain unpaid after the date fixed for the payment thereof,
or if any lien shall be claimed therefor, then, without notice to Company, and
on Company's behalf, Trustee may pay such Taxes, and the amount thereof shall be
added to the Obligations.
SECTION 4.6 COMPANY TO DEFEND COLLATERAL AGAINST CLAIMS; FEES ON
COLLATERAL. Company will defend the Collateral against all claims and demands of
all Persons at any time claiming the same or any interest therein. Company will
not permit any notice creating or otherwise relating to liens on the Collateral
or any portion thereof to exist or be on file in any public office. Company
shall promptly pay, when due, all transportation, storage and warehousing
charges and license fees, registration fees, assessments, charges, permit fees
and taxes (municipal, state and federal) which may now or hereafter be imposed
upon the ownership, leasing, renting, possession, sale or use of the Collateral,
excluding, however, all taxes on or measured by Holders' income.
SECTION 4.7 NO CHANGE OF LOCATION, STRUCTURE OR IDENTITY. Company will
not (i) change the location of its principal place of business or establish any
place of business other than those specified herein or (ii) move or permit the
movement of any Collateral from the location specified in SCHEDULE A hereto,
except that Company may change its principal place of business and keep
Collateral at other locations within the United States provided that Company has
delivered to Trustee (A) prior written notice thereof and (B) duly executed
financing statements and other agreements and instruments (all in form and
substance satisfactory to Trustee) necessary or, in the opinion of Trustee,
desirable to perfect and maintain in favor of Holders a first priority security
interest in the Collateral. Notwithstanding anything to the contrary in the
immediately preceding sentence, Company may keep any Collateral consisting of
motor vehicles or rolling stock at any location in the United States provided
that Holder's security interest in any such Collateral is conspicuously marked
on the certificate of title thereof and Company has complied with the provisions
of SECTION 4.9 hereof.
SECTION 4.8 USE OF COLLATERAL; LICENSES. The Collateral shall be
operated by competent, qualified personnel in connection with Company's business
purposes, for the purpose for which the Collateral was designed and in
accordance with applicable operating instructions, laws and government
regulations, and Company shall use every reasonable precaution to prevent loss
or damage to the Collateral from accidents, fire and other hazards.
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The Collateral shall not be used or operated for personal, family or household
purposes. Company shall procure and maintain in effect all orders, licenses,
certificates, permits, approvals and consents required by federal, state or
local laws or by any governmental body, agency or authority in connection with
the delivery, installation, use and operation of the Collateral.
SECTION 4.9 FURTHER ASSURANCES. Company will, promptly upon request by
Trustee, execute and deliver, or use its best efforts to obtain, any document
reasonably required by Trustee (including, without limitation, warehouseman or
processor disclaimers, mortgagee waivers, landlord disclaimers, or subordination
agreements with respect to the Obligations and the Collateral), give any
notices, execute and file any financing statements, mortgages or other documents
(all in form and substance satisfactory to Trustee), xxxx any chattel paper,
deliver any chattel paper or instruments to Trustee, and take any other actions
that are necessary or, in the opinion of Trustee, desirable to perfect or
continue the perfection and the first priority of Holders' security interest in
the Collateral, to protect the Collateral against the rights, claims, or
interests of any Persons, or to effect the purposes of this Security Agreement.
As long as amounts remain due to Holders from Company under the Loan Documents,
Company hereby authorizes Trustee or Holders 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 Company where permitted by law. A copy
of this Security Agreement or any financing statement covering the Collateral or
any part thereof shall be sufficient as a financing statement where permitted by
law. To the extent required under this Security Agreement, Company will pay all
reasonable costs incurred in connection with any of the foregoing.
SECTION 4.10 NO DISPOSITION OF COLLATERAL. Without the prior written
approval of Trustee, Company will not in any way hypothecate or create or permit
to exist any lien, security interest, charge or encumbrance on or other interest
in any of the Collateral, except for the lien and security interest granted
hereby, and Company will not sell, transfer, assign, pledge, collaterally
assign, exchange or otherwise dispose of any of the Collateral. In the event the
Collateral, or any part thereof, is sold, transferred, assigned, exchanged, or
otherwise disposed of, irrespective of whether it is approved by the Trustee,
the security interest of Holders shall continue in such Collateral or part
thereof notwithstanding such sale, transfer, assignment, exchange or other
disposition, and Company will hold the proceeds thereof in a separate account
for the benefit of Holders. Following such a sale, Company will transfer such
proceeds to Trustee, for the benefit of Holders, in kind.
SECTION 4.11 NO LIMITATION ON HOLDERS' RIGHTS. Company will not enter
into any contractual obligations which may restrict or inhibit Trustee's or
Holders' rights or ability to sell or otherwise dispose of the Collateral or any
part thereof.
SECTION 4.12 PROTECTION OF COLLATERAL. Trustee, upon three (3)
business days' notification to Company (except after an Event of Default) shall
have the right at any time to make any payments and do any other acts Trustee
may deem necessary to protect Holders' security interests in the Collateral,
including, without limitation, the rights to satisfy, purchase, contest or
compromise any encumbrance, charge or lien which, in the reasonable judgment of
Trustee, appears to be prior to or superior to the security interests granted
hereunder, and appear in and defend any action or proceeding purporting to
affect its security interests in, or the value of, any of the Collateral.
Company hereby agrees to reimburse Holders for all reasonable
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payments made and expenses incurred under this Security Agreement, including
fees, expenses and disbursements of attorneys and paralegals (including the
allocated costs of in-house counsel) acting for Holders, including any of the
foregoing payments under, or acts taken to protect its security interests in,
any of the Collateral, which amounts shall be secured under this Security
Agreement, and agrees it shall be bound by any payment made or act taken by
Trustee or Holders hereunder absent Trustee's gross negligence or willful
misconduct. Holders shall have no obligation to make any of the foregoing
payments or perform any of the foregoing acts.
SECTION 4.13 DELIVERY OF ITEMS. Company will promptly (but in no event
later than three (3) Business Days) after its receipt thereof, deliver to
Trustee any documents or certificates of title issued with respect to any
property included in the Collateral, and any promissory notes, letters of credit
or instruments related to or otherwise in connection with any property included
in the Collateral, which in any such case come into the possession of Company,
or shall cause the issuer thereof to deliver any of the same directly to
Trustee, in each case with any necessary endorsements in favor of Trustee for
the benefit of Holders.
SECTION 4.14 FUNDAMENTAL CHANGES. Without the prior written consent of
Trustee, Company shall not merge or consolidate with any other Person, or sell
or otherwise dispose of all or substantially all of its assets.
SECTION 5. COVENANTS OF TRUSTEE. Trustee shall comply with the provisions
of the Indenture, including, but not limited to, notice provisions required
therein.
SECTION 6. FINANCIAL STATEMENTS. Until the payment and satisfaction in full
of all Obligations, Company shall deliver to Trustee and to Holders the
following financial information:
SECTION 6.1 ANNUAL FINANCIAL STATEMENTS. As soon as available, but not
later than one hundred twenty (120) days after the end of each fiscal year of
Company and its consolidated subsidiaries, the consolidated balance sheet,
income statement and statements of cash flows and shareholders equity for
Company and its consolidated subsidiaries (the "FINANCIAL STATEMENTS") for such
year, reported on by independent certified public accountants; and
SECTION 6.2 QUARTERLY FINANCIAL STATEMENTS. As soon as available, but
not later than sixty (60) days after the end of each of the first three (3)
fiscal quarters in any fiscal year of Company and its consolidated subsidiaries,
the Financial Statements for such fiscal quarter, together with a certification
duly executed by a responsible officer of Company that such Financial Statements
have been prepared in accordance with GAAP and are fairly stated in all material
respects (subject to normal year-end audit adjustments).
SECTION 7. EVENTS OF DEFAULT. The occurrence of any of the following events
shall constitute an Event of Default hereunder:
(a) failure of Company to pay any of the Obligations when payable,
whether at stated maturity, by acceleration, or otherwise;
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(b) failure of Company to perform, comply with or observe in any
material respect any term, covenant or agreement applicable to it contained
in any of the Loan Documents;
(c) any representation or warranty made or deemed made by Company
hereunder, under or in connection with the Financial Statements, under any
other Loan Document as defined herein or under any other agreement between
Company and Holders, or under any document, instrument or certificate
executed by Company in favor of Holders, shall prove to have been false or
incorrect in any material respect when made;
(d) any material provision of any Loan Document as defined herein to
which Company is a party shall for any reason cease to be valid and binding
on Company, or Company shall so assert in writing;
(e) dissolution, liquidation, winding up or cessation of any of
Company's business, or the failure of Company to pay its debts as they
mature; or the admission in writing by Company of its inability to pay its
debts as they mature; or the calling of a meeting of Company's creditors
for purposes of compromising Company's debts;
(f) the commencement by or against Company of any bankruptcy,
insolvency, arrangement, reorganization, receivership or similar
proceedings under any federal or state law and, in the case of any such
involuntary proceeding, such proceeding remains undismissed or unstayed for
forty-five (45) days following the commencement thereof, or any action by
Company is taken authorizing any such proceedings;
(g) Company suffers or sustains a Material Adverse Change;
(h) an assignment for the benefit of creditors is made by Company,
whether voluntary or involuntary, or Company consents to the appointment of
a trustee or receiver, or if a trustee or receiver is appointed for Company
or for a substantial part of its property;
(i) Company shall (i) default in the payment of principal of or
interest on any indebtedness (other than the Obligations) beyond the period
of grace, if any, provided in the instrument or agreement under which such
indebtedness was created; or (ii) default in the observance or performance
of any other agreement or condition relating to any such indebtedness or
contained in any instrument or agreement relating thereto, or any other
event shall occur or condition exist, the effect of which default or other
event or condition is to cause, or to permit the holder or holders of such
indebtedness to cause, with the giving of notice if required, such
indebtedness to become due prior to its stated maturity;
(j) any material Federal tax lien is filed of record against Company
and is not bonded or discharged within five (5) business days;
(k) any material judgment shall be rendered against Company which
shall not be stayed, vacated, bonded or discharged within sixty (60) days;
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(l) any material covenant, agreement or obligation of Company
contained in or evidenced by any of the Loan Documents shall cease to be
enforceable, or shall be determined to be unenforceable, in accordance with
its terms; any of the Loan Parties shall deny or disaffirm its obligations
under any of the Loan Documents or any liens granted in connection
therewith; or any liens granted on any of the collateral shall be
determined to be void, voidable or invalid, are subordinated or are not
given the priority contemplated by this Security Agreement; or
(m) this Security Agreement shall for any reason (other than pursuant
to the terms hereof) cease to create a valid and perfected first priority
lien on the Collateral purported to be covered hereby.
SECTION 8. REMEDIES. If any Event of Default shall have occurred and be
continuing:
(a) Trustee, on behalf of Holders, may, without prejudice to any of
Trustee's or Holders' other rights under any Loan Document or applicable
law, declare all Obligations to be immediately due and payable (except with
respect to any Event of Default set forth in SECTION 6(F) hereof, in which
case all Obligations shall automatically ------------ become immediately
due and payable without necessity of any declaration) without presentment,
representation, demand of payment or protest, which are hereby expressly
waived;
(b) Trustee, on behalf of Holders, may, after ten (10) business days
prior written notice to Congress (unless (i) there are no amounts then owed
to Congress under the Congress Agreement and (ii) the Congress Agreement
has been terminated), take possession of the Collateral and, for that
purpose, may enter, with the aid and assistance of any person or persons,
any premises where the Collateral or any part hereof is, or may be placed,
and remove the same;
(c) the obligation of Trustee or Holders, if any, to give additional
(or to continue) financial accommodations of any kind to Company shall
immediately terminate;
(d) Trustee, on behalf of Holders, may, after ten (10) business days
prior written notice to Congress (unless (i) there are no amounts then owed
to Congress under the Congress Agreement and (ii) the Congress Agreement
has been terminated), exercise in respect of the Collateral, in addition to
other rights and remedies provided for herein (or in any Loan Document) or
otherwise available to it, all the rights and remedies of a secured party
under the Uniform Commercial Code (the "CODE") whether or not the Code
applies to the affected Collateral and also may (i) require Company to, and
Company hereby agrees that it will at its expense and upon request of
Trustee or Holders forthwith, assemble all or part of the Collateral as
directed by Holders and make it available to Trustee and Holders at a place
to be designated by Holders that is reasonably convenient to both patties
and (ii) without notice except as specified below, sell the Collateral or
any part thereof in one or more parcels at public or private sale, at any
of Trustee's offices or elsewhere, for cash, on credit or for future
delivery, and upon such
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other terms as Trustee, on behalf of Holders, may deem commercially
reasonable. Trustee agrees to provide at least ten (10) days' notice to
Congress and Company of the time and place of any public sale or the time
after which any private sale is to be made pursuant to or at any time
following a foreclosure or repossession. Trustee or Holders shall not be
obligated to make any sale of Collateral regardless of notice of sale
having been given. Trustee or Holders may adjourn any public or private
sale from time to time by announcement at the time and place fixed
therefor, and such sale may, without further notice, be made at the time
and place to which it was so adjourned; and
(e) all cash proceeds received by Trustee or Holders in respect of any
sale of, collection from, or other realization upon all or any part of the
Collateral may, at the discretion of Trustee or Holders, be held by Trustee
or Holders as collateral for, or then or at any time thereafter applied in
whole or in part by Holders against, all or any part of the Obligations in
such order as Trustee or Holders shall elect. Unless otherwise required by
applicable law, as determined by a court of competent jurisdiction, any
surplus of such cash or cash proceeds held by Trustee or Holders and
remaining after the full and final payment of all the Obligations shall be
paid over to Congress unless (i) there are no amounts then owed to Congress
under the Congress Agreement and (ii) the Congress Agreement has been
terminated, in which case such surplus will be paid over to the Company.
SECTION 9. MISCELLANEOUS PROVISIONS.
SECTION 9.1 NOTICES. Except as otherwise provided herein, all notices,
approvals, consents, correspondence or other communications required or desired
to be given hereunder shall be given in writing and shall be delivered by
overnight courier, hand delivery or certified or registered mail, postage
prepaid, (i) if to Trustee, to the address noted under Trustee's name on the
signature page attached hereto or to such other address as shall be designated
by Trustee to Company in writing, (ii) if to Holder(s), to the address noted
under each Holder's name on the signature page attached to the Stock Purchase
Agreement or to such other address as shall be designated by Holder to Company
in writing, and (iii) if to Company, to the address noted on the first page of
this Security Agreement. All such notices and correspondence shall be effective
when received.
SECTION 9.2 HEADINGS. The headings in this Security Agreement are for
purposes of reference only and shall not affect the meaning or construction of
any provision of this Security Agreement.
SECTION 9.3 ASSIGNMENTS. Company shall not have the right to assign
the Notes or this Security Agreement or any interest therein. Holders may assign
its rights and delegate its obligations under the Notes or this Security
Agreement.
SECTION 9.4 AMENDMENTS, WAIVERS AND CONSENTS. Any amendment or waiver
of any provision of this Security Agreement and any consent to any departure by
Company from any provision of this Security Agreement shall be effective only by
a writing signed by the Trustee, PROVIDED, HOWEVER, that Trustee shall not
consent to any such amendment without the prior written consent of a majority of
the Holders, and shall bind and benefit
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Company and Holders and their respective successors and assigns, subject, in the
case of Company, to the first sentence of SECTION 8.3 hereof.
SECTION 9.5 INTERPRETATION OF AGREEMENT. Time is of the essence in
each provision of this Security Agreement of which time is an element. All terms
not defined herein or in the Notes shall have the meaning set forth in the
applicable Code, except where the context otherwise requires. To the extent a
term or provision of this Security Agreement conflicts with the Notes and is not
dealt with herein with more specificity, this Security Agreement shall control
with respect to the subject matter of such term or provision. Acceptance of or
acquiescence in a course of performance rendered under this Security Agreement
shall not be relevant in determining the meaning of this Security Agreement even
though the accepting or acquiescing party had knowledge of the nature of the
performance and opportunity for objection.
SECTION 9.6 CONTINUING SECURITY INTEREST. This Security Agreement
shall create a continuing security interest in the Collateral and shall (i)
remain in full force and effect until the indefeasible payment in full of the
Obligations, (ii) be binding upon Company and its successors and assigns and
(iii) inure, together with the rights and remedies of Holders hereunder, to the
benefit of Holders and its successors, transferees and assigns.
SECTION 9.7 REINSTATEMENT. To the extent permitted by law, this
Security Agreement and the rights and powers granted to Trustee and Holders
hereunder and under the other Loan Documents shall continue to be effective or
be reinstated if at any time any amount received by Holders in respect of the
Obligations is rescinded or must otherwise be restored or returned by Trustee or
Holders upon the insolvency, bankruptcy, dissolution, liquidation or
reorganization of Company or upon the appointment of any receiver, intervenor,
conservator, trustee or similar official for Company or any substantial part of
its assets, or otherwise, all as though such payments had not been made.
SECTION 9.8 SURVIVAL OF PROVISIONS. All representations, warranties
and covenants of Company contained herein shall survive the execution and
delivery of this Security Agreement, and shall terminate only upon the full and
final payment and performance by Company of the Obligations secured hereby.
SECTION 9.9 INDEMNIFICATION. Company agrees to indemnify and hold
harmless Trustee, Holders and their respective directors, officers, agents,
employees and counsel from and against any and all costs, expenses, claims, or
liability incurred by Holders or such Person hereunder and under any other Loan
Document or in connection herewith or therewith, unless such claim or liability
shall be due to willful misconduct or gross negligence on the part of Holders or
such Person.
SECTION 9.10 GOVERNING LAW. THE VALIDITY, INTERPRETATION AND
ENFORCEMENT OF THIS SECURITY AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF FLORIDA WITHOUT GIVING EFFECT TO THE
CONFLICT OF LAW PRINCIPLES THEREOF.
SECTION 9.11 VENUE; SERVICE OF PROCESS. ANY LEGAL ACTION OR PROCEEDING
WITH RESPECT TO THIS SECURITY AGREEMENT OR ANY OTHER
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LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF FLORIDA SITUATED IN
BROWARD COUNTY, OR OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF
FLORIDA AND, BY EXECUTION AND DELIVERY OF THIS SECURITY AGREEMENT, COMPANY
HEREBY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS. COMPANY HEREBY
IRREVOCABLY WAIVES, IN CONNECTION WITH ANY SUCH ACTION OR PROCEEDING, (A) ANY
OBJECTION, INCLUDING, WITHOUT LIMITATION, ANY OBJECTION TO THE LAYING OF VENUE
OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, THAT IT MAY NOW OR HEREAFTER
HAVE TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING IN SUCH RESPECTIVE
JURISDICTIONS AND (B) THE RIGHT TO INTERPOSE ANY NONCOMPULSORY SETOFF,
COUNTERCLAIM OR CROSS-CLAIM. COMPANY IRREVOCABLY CONSENTS TO THE SERVICE OF
PROCESS OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY
THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID,
TO COMPANY AT THE ADDRESS FOR IT SPECIFIED IN SECTION 9.1 HEREOF. NOTHING HEREIN
SHALL AFFECT THE RIGHT OF TRUSTEE OR HOLDERS TO SERVE PROCESS IN ANY OTHER
MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED
AGAINST COMPANY IN ANY OTHER JURISDICTION, SUBJECT IN EACH INSTANCE TO THE
PROVISIONS HEREOF WITH RESPECT TO RIGHTS AND REMEDIES.
SECTION 9.12 DELAYS; PARTIAL EXERCISE OF REMEDIES. No delay or
omission of Trustee or Holders to exercise any right or remedy hereunder,
whether before or after the happening of any Event of Default, shall impair any
such right or shall operate as a waiver thereof or as a waiver of any such Event
of Default. No single or partial exercise by Trustee or Holders of any right or
remedy shall preclude any other or further exercise thereof, or preclude any
other right or remedy.
SECTION 9.13 WAIVER OF JURY TRIAL. COMPANY, TRUSTEE AND HOLDERS
IRREVOCABLY WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS SECURITY AGREEMENT, ANY OTHER
LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED BY THOSE AGREEMENTS.
SECTION 9.14 ENTIRE AGREEMENT. Company, Trustee and Holders agree that
this Security Agreement and the Schedule(s) hereto are the complete and
exclusive statement and agreement between the parties with respect to the
subject matter hereof, superseding all proposals and prior agreements, oral or
written, and all other communications between the parties with respect to the
subject matter hereof.
SECTION 9.15 COUNTERPARTS; FACSIMILE. This Security Agreement may be
executed in two or more counterparts, each of which shall be deemed to be an
original but all of which taken together shall constitute one agreement.
Signatures to this Security Agreement may be transmitted by facsimile and such
transmission shall be deemed to be an original.
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IN WITNESS WHEREOF, the parties hereto have caused this Security Agreement
to be duly executed and delivered by their proper and duly authorized officers
as of the date first set forth above.
COMPANY
XXXXXXXXX MOBILE FUELING, INC.
By: /S/XXXXXXX X. XXXXXXXXX
---------------------------------------
Xxxxxxx X. Xxxxxxxxx
President and Chief Executive Officer
FED ID NO. 00-0000000
-------------------------------
TRUSTEE
THE BANK OF CHERRY CREEK, A BRANCH OF
WESTERN NATIONAL BANK
By: /S/XXXXXXX X. XXXXXXX
--------------------------------------
Xxxxxxx X. Xxxxxxx
Senior Vice President
By: /S/XXXXXX XXXXXXXX
--------------------------------------
Xxxxxx Xxxxxxxx
Senior Trust Officer
FED ID NO. 00-0000000
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