1
EXHIBIT 4.8
COMMERCIAL SECURITY AGREEMENT
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PRINCIPAL DATE MATURITY LOAN NO CALL COLLATERAL ACCOUNT OFFICER INITIALS
$25,000,000.00 09-11-1996 09-11-1999 855
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References in the shaded area are for Lender's use only and do not limit the
applicability of this document to any particular loan or item.
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BORROWER/GRANTOR: SEARCH FUNDING II, INC. LENDER: HIBERNIA NATIONAL BANK
(TIN: 00-0000000) (TIN: 00-0000000)
000 XXXXX XXXXX XXXXXX 313 CARONDELET STREET
SUITE 400, L.B. 000 XXXX XXXXXX XXX 00000
XXXXXX, XXXXX 00000-0000 XXX XXXXXXX, XXXXXXXXX 00000
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THIS COMMERCIAL SECURITY AGREEMENT is entered into between SEARCH FUNDING II,
INC. (referred to below as "GRANTOR"); and HIBERNIA NATIONAL BANK (referred to
below as "LENDER"). For valuable consideration, Grantor hereby pledges to
Lender and grants to Lender a continuing security interest in the Collateral to
secure Grantor's present and future Indebtedness and agrees that Lender shall
have the rights stated in this Agreement with respect to the Collateral, in
addition to all other rights which Lender may have by law or otherwise.
DEFINITIONS. The following words shall have the following meanings when used
in this Agreement. Terms not otherwise defined in this Agreement shall have
the meanings attributed to such terms in the Louisiana Commercial Laws -
Secured Transactions (La.-R.S. 10: 9-101, et seq.). All references to dollar
amounts shall mean amounts in lawful money of the United States of America.
AGREEMENT. The word "Agreement" means this Commercial Security
Agreement, as this Commercial Security Agreement may be amended or
modified from time to time, together with all exhibits and schedules
attached or to be attached to this Commercial Security Agreement from
time to time.
COLLATERAL. The word "Collateral" means individually, collectively
and interchangeably any and all of Grantor's present and future
rights, title and interest in and to the following described property,
wherever located, together with any and all present and future
additions thereto, substitutions therefor, and replacements thereof:
ALL CHATTEL PAPER, INSTRUMENTS, DOCUMENTS, ACCOUNTS, INVENTORY,
AND GENERAL INTANGIBLES
The Collateral includes any and all of Grantor's present and future
chattel paper, equipment leases, retail installment contracts, notes
and chattel mortgages, notes and security agreements, instruments,
documents, and all other similar obligations and indebtedness that may
now and in the future be owed to or held by Grantor from whatever
source arising, and all monies and proceeds payable thereunder, and
all of Grantor's rights and remedies to collect and enforce payment
and performance thereof, as well as to enforce any guaranties of the
foregoing and security therefor, and all of Grantor's present and
future rights, title and interest in and with respect to the goods or
other property that may give rise to or that may secure any of the
foregoing, including without limitation Grantor's insurance rights
with regard thereto, and any and all present and future general
intangibles of Grantor in any way related or pertaining to any of the
foregoing, including without limitation Grantor's account ledgers,
books, records, files, computer disks and software, and all rights
that Grantor may have with regard thereto.
The Collateral includes any and all of Grantor's present and future
accounts, instruments, documents, notes, and all other similar
obligations and indebtedness that may now and in the future be owed to
or held by Grantor from whatever source arising, and all monies and
proceeds payable thereunder, and all of Grantor's rights and remedies
to collect and enforce payment and performance thereof, as well as to
enforce any guaranties of the foregoing and security therefor, and all
of Grantor's present and future rights, title and interest in and with
respect to the goods, services, and other property that may give rise
to or that may secure any of the foregoing, including without
limitation Grantor's insurance rights with regard thereto, and all
present and future general intangibles of Grantor in any way related
or pertaining to any of the foregoing, including without limitation
Grantor's account ledgers, books, records, files, computer disks and
software, and all rights that Grantor may have with regard thereto.
The Collateral includes any and all of Grantor's present and future
inventory (including consigned inventory), merchandise and other items
of personal property held for sale or lease, no matter where located,
of every type and description, including without limitation any and
all of Grantor's present and future raw materials, components,
work-in-process, finished items, packing and shipping materials,
containers, items held for sale, items held for lease, items for which
Grantor is lessor, goods to be furnished under contract for services,
materials used or consumed in Grantor's business, whether held by
Grantor or by others, and all documents of title, warehouse receipts,
bills of lading, and other documents of every type covering all or any
part of the foregoing, and any and all additions thereto and
substitutions or replacements therefor, and all accessories,
attachments, and accessions thereto, whether added now or later, and
all products and proceeds derived or to be derived therefrom,
including without limitation all insurance proceeds and refunds of
insurance premiums, if any, and all sums that may be due from third
parties who may cause damage to any of the foregoing, or from any
insurer, whether due to judgment, settlement, or other process, and
any and all present and future accounts, chattel paper, instruments,
documents, and notes that may be derived from the sale, lease or other
disposition of any of the foregoing, and any rights of Grantor to
collect or enforce payment thereof, as well as to enforce any
guarantees of the forgoing and security therefor, and all of Grantor's
present and future general intangibles in any way related or
pertaining to the ownership, operation, use, or collection of any of
the foregoing, including without limitation Grantor's books, records,
files, computer disks and software, and all rights that Grantor may
have with regard thereto. Inventory includes inventory temporarily
out of Grantor's possession or custody and all returns on accounts,
chattel paper and instruments.
The Collateral includes all general intangibles, choses in action and
causes of action and all other intangible personal property and rights
of Grantor of every nature and kind, now owned or hereafter acquired,
including without limitation corporate or other business records,
inventions, designs, blueprints, plans, specifications, patents,
patent applications, trade marks, trade names, trade secrets,
goodwill, copyrights, registrations, licenses, franchises, insurance
proceeds, including without limitation insurance covering the lives of
key employees on which Grantor is beneficiary, and any letter of
credit, guaranty, claim, security interest, or other security held or
granted to Grantor to secure payment of any indebtedness.
The word "Collateral" also includes any and all present or future
parts, accessories, attachments, additions, accessions, substitutions
and replacements to and for the collateral. The word "Collateral"
further includes any and all of Grantor's present and future rights to
any proceeds derived or to be derived from the sale, lease, damage,
destruction, insurance loss, expropriation and other disposition of
the collateral, including without limitation, any and all of Grantor's
rights to enforce collection and payment of such proceeds.
ENCUMBRANCES. The word "Encumbrances" means individually,
collectively and interchangeably any and all presently existing and/or
future mortgages, liens, privileges and other contractual and/or
statutory security interests and rights of every nature and kind that,
now and/or in the future, may affect the Collateral or any part or
parts thereof.
EVENT OF DEFAULT. The words "Event of Default" mean individually,
collectively, and interchangeably any of the Events of Default set
forth below in the section titled "Events of Default."
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09-11-1996 COMMERCIAL SECURITY AGREEMENT PAGE 2
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GRANTOR. The word "Grantor" means individually, collectively and
interchangeably SEARCH FUNDING II, INC. Any Grantor who signs this
Agreement, but does not sign the Note, is signing this Agreement
solely to grant a security interest as affecting Grantor's interest in
the Collateral and will not be personally liable to Lender under the
Note except as otherwise provided by contract or by law (e.g.,
personal liability under a guaranty or as a surety).
GUARANTOR. The word "Guarantor" means and includes individually,
collectively, interchangeably and without limitation, each and all of
the guarantors, sureties, and accommodation parties in connection with
the Indebtedness.
INDEBTEDNESS. The word "Indebtedness" means the indebtedness
evidenced by the Note, in principal, interest, costs, expenses and
attorneys' fees and all other fees and charges, together with all
other indebtedness and costs and expenses for which Grantor is
responsible under this Agreement or under any of the Related
Documents. In addition, the word "Indebtedness" also includes any and
all other loans, extensions of credit, obligations, debts and
liabilities, plus interest thereon, of Grantor that may now and in the
future be owed to or incurred in favor of Lender, as well as all
claims by Lender against Grantor, whether existing now or later;
whether they are voluntary or involuntary, whether related or
unrelated, whether committed or purely discretionary, due or to become
due, direct or indirect or by way of assignment, determined or
undetermined, absolute or contingent, liquidated or unliquidated;
whether Grantor may be liable individually or jointly with others, of
every nature and kind whatsoever, in principal, interest, costs,
expenses and attorneys' fees and all other fees and charges; whether
Grantor may be obligated as guarantor, surety, accommodation party or
otherwise; whether recovery upon such indebtedness may be or hereafter
may become barred by any statute of limitations; and whether such
indebtedness may be or hereafter may become void or otherwise
unenforceable.
LENDER. The word "Lender" means HIBERNIA NATIONAL BANK (TIN:
00-0000000), its successors and assigns, and any subsequent holder or
holders of the Note, or any interest therein.
NOTE. The word "Note" means the promissory note DATED SEPTEMBER 11,
1996, in the principal amount of $25,000,000.00 from Grantor to
Lender, together with all substitute or replacement notes therefor, as
well as all renewals, extensions, modifications, refinancings,
consolidations and substitutions of and for such promissory note.
PERMITTED LIENS. The words "Permitted Liens" mean (a) liens and
security interests securing Indebtedness owed by Grantor to Lender;
(b) liens for taxes, assessments, or similar charges either not yet
due or being contested in good faith; (c) liens of materialmen,
mechanics, warehousemen, or carriers, or other like liens securing
obligations which were incurred prior to Grantor's acquisition of the
property subject to such liens and security interests; (d) liens of
materialmen, mechanics, warehousemen, or carriers, or other like liens
arising in the ordinary course of business and securing obligations
which are not yet delinquent or are being contested in good faith; and
(e) liens and security interests which, as of the date of this
Agreement, have been disclosed to and approved by Lender in writing.
RELATED DOCUMENTS. The words "Related Documents" mean and include
individually, collectively, interchangeably and without limitation,
the Loan Agreement between Grantor and Lender dated SEPTEMBER 11,
1996, as amended or modified from time to time ("THE LOAN AGREEMENT"),
and all promissory notes, credit agreements, other loan agreements,
environmental agreements, guaranties, security agreements, mortgages,
collateral mortgages, deeds of trust, and all other instruments,
agreements and documents, whether now or hereafter existing, executed
in connection with the Indebtedness.
CONTINUING SECURITY INTEREST TO SECURE PRESENT AND FUTURE INDEBTEDNESS.
Grantor affirms that Grantor has granted a continuing security interest in the
Collateral in favor of Lender to secure any and all present and future
Indebtedness of Grantor in favor of Lender, as may be outstanding from time to
time set forth above, in principal, interest, costs, expenses, attorneys' fees
and other fees and charges, with the continuing preferences and priorities
provided under applicable law. Grantor agrees that all such additional loans
and Indebtedness will be secured under this Agreement without the necessity
that Grantor agree or consent to such a result at the time such additional
loans are made and Indebtedness incurred, without the further necessity that
the note or notes evidencing such additional loans or Indebtedness refer to the
fact that such notes are secured by this Agreement. Grantor further agrees
Grantor may not subsequently have a change of mind and insist that any such
additional loans or Indebtedness not be secured by this Agreement unless Lender
specifically agrees to such a request in writing.
DURATION. This Agreement shall remain in full force and effect until such time
as this Agreement and the security interests created hereby are terminated and
canceled by Lender under a written cancellation instrument in favor of Grantor.
Lender agrees to deliver a written cancellation instrument to Grantor, at the
request of Grantor, after repayment of the Indebtedness and all obligations of
Lender to Grantor, and of Grantor to Lender, have been fully performed or
otherwise terminated.
DEPOSIT ACCOUNTS. As collateral security for repayment of the Indebtedness and
all renewals and extensions, as well as to secure any and all other loans,
notes, indebtedness and obligations that Grantor may now and in the future owe
to Lender or incur in Lender's favor, whether direct or indirect, absolute or
contingent, due or to become due, of any nature and kind whatsoever, Grantor is
granting Lender a continuing security interest in any and all funds that
Grantor may now and in the future have on deposit with Lender or in
certificates of deposit or other deposit accounts as to which Grantor is an
account holder (with the exception of XXX, pension, and other tax-deferred
deposits). Grantor further agrees that Lender may, after an Event of Default
has occurred, apply any funds that Grantor may have on deposit with Lender or
in certificates of deposit or other deposit accounts as to which Grantor is an
account holder (with the exception of XXX, pension, and other tax-deferred
deposits) against the unpaid balance of any of the Indebtedness; provided,
however, that the Event of Default prerequisite for application authority shall
not apply to any dominion account required to be maintained by Grantor under
any of the Related Documents.
REPRESENTATIONS, WARRANTIES AND COVENANTS OF GRANTOR. Grantor represents,
warrants and covenants to Lender as follows:
ORGANIZATION. Grantor is a corporation which is duly organized,
validly existing, and in good standing under the laws of the State of
Texas. Grantor has its registered office at 000 XXXXX XXXXX XXXXXX,
XXXXX 000, X.X. 000, XXXXXX, XXXXX 00000-0000. Grantor's chief
executive office is located at 000 XXXXX XXXXX XXXXXX, XXXXX 000, X.X.
000, XXXXXX, XXXXX 00000-0000. Grantor will notify Lender of any
change in the location of Grantor's registered office or chief
executive office.
AUTHORIZATION. Grantor's execution, delivery and performance of this
Agreement have been duly authorized, and do not conflict with, and
will not result in a violation of, or constitute or give rise to any
default under Grantor's Articles of Incorporation or Bylaws, or any
agreement or other instrument which may be binding upon Grantor, or
under any law or governmental regulation or court decree or order
applicable to Grantor and/or its properties.
PERFECTION OF SECURITY INTEREST. Grantor agrees to execute such
financing statements and to take whatever other reasonable actions are
requested by Lender to perfect and continue Lender's security interest
in the Collateral. Upon reasonable request of Lender, Grantor will
deliver to Lender any and all of the documents evidencing or
constituting the Collateral, and Grantor will note Lender's interest
upon any and all chattel paper if not delivered to Lender for
possession by Lender. Grantor hereby appoints Lender as its
irrevocable attorney-in-fact for the purpose of executing any
documents necessary to perfect or to continue the security interest
granted in this Agreement. Lender may at any time, and without
further authorization from Grantor, file a carbon, photographic,
facsimile, or other reproduction of any financing statement. Grantor
will reimburse Lender for all expenses for the perfection,
termination, and the continuation of the perfection of Lender's
security interest in the Collateral. Grantor promptly will notify
Lender before any change in Grantor's name including any change to the
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assumed business names of Grantor. Grantor also promptly will notify
Lender of any change in Grantor's Employer Identification Number.
Grantor represents and warrants to Lender that Grantor has provided
Lender with Grantor's correct Employer Identification Number and that
Grantor has no other Employer Identification Numbers. Grantor
promptly shall notify Lender should Grantor apply for or obtain a new
Employer Identification Number.
NO VIOLATION. The execution and delivery of this Agreement will not
violate any law or agreement governing Grantor or to which Grantor is
a party, and its certificate or articles of incorporation and bylaws
do not prohibit any term or condition of this Agreement.
ENFORCEABILITY OF COLLATERAL. The Collateral that comprises Eligible
Paper under the Loan Agreement is enforceable in accordance with its
terms, is genuine, and complies with applicable state and federal laws
and regulations concerning form, content and manner of preparation and
execution, and, to the best of Grantor's knowledge, all persons
appearing to be obligated on the Eligible Paper have authority and
capacity to contract and are in fact obligated as they appear to be on
the Eligible Paper, free of any offset, compensation, deduction or
counterclaim. To the extent the Collateral consists of accounts,
chattel paper, instruments, or general intangibles that are not
Eligible Paper under the Loan Agreement, such ineligible Collateral is
enforceable in accordance with its terms, is genuine, and complies in
all material respects with applicable state and federal laws and
regulations concerning form, content and manner of preparation and
execution, and, to the best of Grantor's knowledge, all persons
appearing to be obligated on the Collateral have authority and
capacity to contract and are in fact obligated as they appear to be on
the Collateral, free of any offset, compensation, deduction or
counterclaim. At the time any account, chattel paper, instrument or
general intangible becomes subject to a security interest in favor of
Lender, the account, chattel paper, instrument or general intangible
shall be a good and valid account, chattel paper, instrument or
general intangible representing an undisputed, bona fide indebtedness
incurred by the account debtor, for merchandise held subject to
delivery instructions or theretofore shipped or delivered pursuant to
a contract of sale, or for services theretofore performed by Grantor
with or for the account debtor; there shall be no setoffs or
counterclaims against any such account, chattel paper, instrument or
general intangible; and no agreement under which any deductions or
discounts may be claimed shall have been made with the account debtor
except those disclosed to Lender in writing. So long as this
Agreement remains in effect, Grantor shall not, without Lender's prior
written consent, compromise, settle, adjust, or extend payment under
or with regard to any such accounts, chattel paper, instruments or
general intangibles, except in the ordinary course of Grantor's
business.
LOCATION OF COLLATERAL RECORDS. Grantor shall keep all records
concerning the Collateral at Grantor's chief executive office, or at
such other locations as are acceptable to Lender.
TRANSACTIONS INVOLVING COLLATERAL. Grantor shall not sell or
otherwise transfer or dispose of any the Collateral, except for (a)
inventory sold in the ordinary course of Grantor's business, (b)
accounts, chattel paper and instruments collected in the ordinary
course of Grantor's business, and (c) sales of Collateral under terms
and conditions permitted under the Loan Agreement. As long as no
Event of Default has occurred, Grantor may sell inventory, but only in
the ordinary course of its business and only to buyers who qualify as
a buyer in the ordinary course of business, unless Lender has agreed
to release the Collateral sold under the terms of the Loan Agreement.
A sale in the ordinary course of Grantor's business does not include a
transfer in partial or total satisfaction of a debt or any bulk sale.
Grantor shall not pledge, mortgage, encumber or otherwise permit the
Collateral to be subject to any Encumbrance or charge, other than
Permitted Liens, without the prior written consent of Lender. This
includes security interests even if junior in right to the security
interests granted under this Agreement. Unless waived by Lender, all
proceeds from any disposition of the Collateral (for whatever reason)
shall be held in trust for Lender and shall not be commingled with any
other funds; provided however, this requirement shall not constitute
consent by Lender to any sale or other disposition. Upon receipt,
Grantor shall immediately deliver any such proceeds to Lender for
deposit into the Dominion Account.
RELEASE OF COLLATERAL. Grantor may apply to Lender for a release of
Collateral from this Agreement in connection with a sale of Collateral
by Grantor outside of the ordinary course of Grantor's business or in
bulk in accordance with the terms and conditions of the Loan
Agreement. Lender agrees to allow the requested release in accordance
with the terms and conditions of the Loan Agreement.
TITLE, AUTHORITY, BINDING EFFECT. Grantor represents and warrants to
Lender that it holds good and marketable title to the Collateral, free
and clear of all Encumbrances except for Permitted Liens. Except for
Permitted Liens, no financing statement covering any of the Collateral
is on file in any public office other than those which reflect the
security interest created by this Agreement or to which Lender has
specifically consented. Grantor further represents and warrants that
it has requisite authority to enter into this Agreement in favor of
Lender and to grant to Lender the security interest in the Collateral
as provided herein. Grantor additionally represents and warrants that
this Agreement is binding upon Grantor as well as Grantor's heirs,
successors, representatives, transferees and assigns, and is legally
enforceable in accordance with its terms. The foregoing
representations and warranties and all other representations and
warranties of Grantor under this Agreement shall be continuing and
shall survive the termination of this Agreement.
COLLATERAL SCHEDULES AND LOCATIONS. As often as Lender shall require,
and insofar as the Collateral consists of accounts, chattel paper,
instruments and general intangibles, Grantor shall deliver to Lender
schedules of such Collateral, including such information as Lender may
require, including without limitation names and addresses of account
debtors and agings of accounts, chattel paper, instruments and general
intangibles. Insofar as the Collateral consists of inventory, Grantor
shall deliver to Lender, as often as Lender shall require, such lists,
descriptions, and designations of such Collateral as Lender may
require to identify the nature, extent, and location of such
Collateral. Such information shall be submitted for Grantor and each
of its subsidiaries or related companies.
REPAIRS AND MAINTENANCE. Grantor shall keep and maintain and shall
cause others to keep and maintain Grantor's inventory in good order,
repair and merchantable condition, subject to the discretion of
Grantor using reasonable business judgment considering the value of
the inventory and costs of repairs and maintenance. Grantor shall
further make and/or cause all necessary repairs to be made to the
Collateral, including the repair and restoration of any portion of
Grantor's inventory that may be damaged, lost or destroyed, subject to
the discretion of Grantor using reasonable business judgment
considering the value of the inventory and costs of repairs and
restoration.
TAXES. Grantor shall promptly pay or cause to be paid when due, all
taxes, local and special assessments, and governmental and other
charges of every type and description, that may from time to time be
imposed, assessed and levied against the Collateral or against
Grantor. Grantor further agrees, upon Lender's request, to furnish
Lender with evidence that such taxes, assessments, and governmental
and other charges have been paid in full and in a timely manner.
Grantor may withhold any such payment or elect to contest any lien if
Grantor is in good faith conducting an appropriate proceeding to
contest the obligation to pay and so long as Lender's interest in the
Collateral is not materially jeopardized.
COMPLIANCE WITH GOVERNMENTAL REQUIREMENTS. Grantor shall comply
promptly with, and shall cause others to comply with, all laws,
ordinances and regulations of all governmental authorities applicable
to the production, disposition, or use of the Collateral. Grantor may
contest in good faith any such law, ordinance or regulation and
withhold compliance during any proceeding, including appropriate
appeals, so long as, in Lender's reasonable opinion, Lender's interest
in any of the Collateral that is included in Eligible Paper under the
Loan Agreement, is not jeopardized. Grantor shall not use the
Collateral, and shall not permit others to use the Collateral, for any
purpose other than those previously agreed to by Lender in writing;
but in no event shall any of the Collateral be used in any manner that
would damage, depreciate or diminish its value or that may result in
cancellation or termination of insurance coverage. Grantor
additionally agrees not to do or suffer to be done anything that may
increase the risk of fire or other hazards to the Collateral.
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HAZARDOUS SUBSTANCES. Grantor represents and warrants that the
Collateral never has been, and never will be so long as this Agreement
remains a lien on the Collateral, used for the generation,
manufacture, storage, transportation, treatment, disposal, release or
threatened release of any hazardous waste or substance, as those terms
are defined in the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980, as amended, 42 U.S.C. Section 9601, et seq.
("CERCLA"), the Superfund Amendments and Reauthorization Act of 1986,
Pub. L. No. 99-499 ("XXXX"), the Hazardous Materials Transportation
Act, 49 U.S.C. Section 1801, et seq., the Resource Conservation and
Recovery Act, 49 U.S.C. Section 6901, et seq., or other applicable
state or Federal laws, rules, or regulations adopted pursuant to any
of the foregoing. The terms "hazardous waste" and "hazardous
substance" shall also include, without limitation, petroleum and
petroleum by-products or any fraction thereof and asbestos. The
representations and warranties contained herein are based on Grantor's
due diligence in investigating the Collateral for hazardous wastes and
substances. Grantor hereby (a) releases and waives any future claims
against Lender for indemnity or contribution in the event Grantor
becomes liable for cleanup or other costs under any such laws, and (b)
agrees to indemnify and hold harmless Lender against any and all
claims and losses resulting from a breach of this provision of this
Agreement. This obligation to indemnify shall survive the payment of
the Indebtedness and the satisfaction of this Agreement.
ENCUMBRANCES. Grantor shall not, without the prior written consent of
Lender, grant any Encumbrance that may affect the Collateral, or any
part or parts thereof, nor shall Grantor permit or consent to any
Encumbrance, other than a Permitted Lien, attaching to or being filed
against any of the Collateral in favor of anyone other than Lender.
Grantor shall further promptly pay when due all statements and charges
of mechanics, materialmen, laborers and others incurred in connection
with the alteration, improvement, repair and maintenance of Grantor's
inventory, or otherwise furnish appropriate security or bond, so that
no future Encumbrance, other than a Permitted Lien, may ever attach to
or be filed against any Collateral. Grantor additionally agrees to
obtain, upon request by Lender, and in form and substance as may then
be satisfactory to Lender, appropriate waivers and/or subordinations
of any lessor's liens or privileges, vendor's liens or privileges,
purchase money security interests, and any other Encumbrances, other
than Permitted Liens, that may affect the Collateral at any time.
NOTICE OF ENCUMBRANCES. Grantor shall immediately notify Lender in
writing upon the filing of each attachment, lien or other Encumbrance,
other than Permitted Liens, involving $100,000.00 or more. Grantor
additionally agrees to notify Lender immediately in writing upon the
occurrence of any default, or event that with the passage of time,
failure to cure, or giving of notice, might result in a default under
any of Grantor's obligations that may be secured by any presently
existing or future Encumbrance or that might result in an Encumbrance
affecting the Collateral, other than a Permitted Lien, or should any
of the Collateral be seized or attached or levied upon, or threatened
by seizure or attachment or levy, by any person other than Lender.
BOOKS AND RECORDS. Grantor will keep proper books and records with
regard to Grantor's business activities and the Collateral in which a
security interest is granted hereunder, in accordance with generally
accepted accounting principles, applied on a consistent basis
throughout, which books and records shall at all reasonable times be
open to inspection and copying by Lender or its designated agents.
Lender shall also have the right to inspect Grantor's books and
records, and to discuss Grantor's affairs and finances with Grantor's
officers and representatives, at such reasonable times as Lender may
designate.
GRANTOR'S RIGHT TO POSSESSION AND TO COLLECT ACCOUNTS, CHATTEL PAPER AND
INSTRUMENTS. Until an Event of Default has occurred and except as otherwise
provided below with respect to accounts, chattel paper and instruments, Grantor
may have possession and beneficial use of all the Collateral and may use it in
any lawful manner not inconsistent with this Agreement or the Related
Documents, provided that Grantor's right to possession and beneficial use shall
not apply to any Collateral where possession of the Collateral by Lender is
required by law to perfect Lender's security interest in such Collateral.
Until otherwise notified by Lender, Grantor may collect any of the Collateral
consisting of accounts, chattel paper and instruments. At any time and even
though no Event of Default exists, Lender may exercise its rights to collect
the accounts, chattel paper and instruments and to notify account debtors to
make payments directly to Lender for deposit into the dominion account provided
for in the Loan Agreement. Lender or Lender's agents may also periodically
contact individual obligors and debtors to verify the amounts then owing under
such obligations, to determine whether such obligors and debtors have any
offsets or counterclaims against the accounts, chattel paper and instruments
and/or Grantor, and to inquire about such other matters as Lender may deem
necessary or desirable. If Lender at any time has possession of any
Collateral, whether before or after an Event of Default, Lender shall be deemed
to have exercised reasonable care in the custody and preservation of the
Collateral if Lender takes such action for that purpose as Grantor shall
request or as Lender, in Lender's sole discretion, shall deem appropriate under
the circumstances, but failure to honor any request by Grantor shall not of
itself be deemed to be a failure to exercise reasonable care. Lender shall not
be required to take any steps necessary to preserve any rights in the
Collateral against prior parties, nor to protect, preserve or maintain any
security interest given to secure the Collateral.
ADDITIONAL COVENANTS. Grantor additionally agrees:
NO SETTLEMENT OR COMPROMISE. Grantor will not, without the prior
written consent of Lender, compromise, settle, adjust or extend
payment under any of the Collateral, except in the ordinary course of
Grantor's business.
BOOKS AND RECORDS. Grantor will keep proper books and records with
regard to Grantor's business activities and the Collateral, which
books and records shall at all times be open to inspection and copying
by Lender or its designated agent. Lender shall also have the right
to inspect Grantor's books and records, and to discuss Grantor's
affairs and finances with Grantor at such reasonable times as Lender
may designate.
LOCK BOX. Grantor agrees that Lender may at any time require Grantor
to institute procedures whereby the proceeds and/or payments of any
accounts, chattel paper and instruments subject to this Agreement
shall be paid by the debtors thereof under a lock box arrangement to
Lender, or to Lender's agent, or to one or more financial institutions
designated by Lender. Grantor further agrees that, if no Event of
Default exists under this Agreement, any and all of such funds
received under such a lock box arrangement shall, at Lender's sole
election and discretion, either be (a) paid and/or turned over to
Grantor; (b) deposited into one or more accounts for the benefit of
Grantor (which deposit accounts shall be subject to collateral
assignment and pledge in favor of Lender as provided under this
Agreement); (c) deposited into one or more accounts for the joint
benefit of Grantor and Lender (which deposit accounts shall likewise
be subject to assignment and pledge in favor of Lender as provided
under this Agreement); (d) paid and/or turned over to Lender to be
applied to the Indebtedness in such order and priority as Lender may
determine within its sole discretion; or (e) any combination of the
foregoing as Lender shall determine from time to time. Grantor
further agrees that, should one or more Events of Default exist under
this Agreement, any and all funds received under such a lock box
arrangement shall be paid and/or turned over to Lender to be applied
to principal, accrued interest, costs, expenses, attorneys' fees and
other fees and charges under the Indebtedness, again in such order and
priority as Lender may determine within its sole discretion.
NOTICE TO OBLIGORS. Upon request by Lender, Grantor will immediately
notify individual obligors with regard to the Collateral, advising
such obligors and/or debtors of the fact that Lender has been granted
a security interest in their obligations. In the event that Grantor
should fail to provide such notices for any reason upon request by
Lender, Grantor agrees that Lender may forward appropriate notices to
such obligors and debtors, either in Lender's name or in the name of
Grantor.
ADDITIONAL DOCUMENTS. Grantor shall at any time, from time to time,
one or more times, upon written request by Lender, execute and deliver
such further documents and do any and all such further acts and things
as Lender may reasonably request, within its sole discretion, to
effect the purposes of this Agreement.
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09-11-1996 COMMERCIAL SECURITY AGREEMENT PAGE 5
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VERIFICATIONS. Grantor additionally agrees that Lender or Lender's
agents may periodically contact individual debtors whose Notes,
Instruments and Chattel Paper have been assigned and pledged hereunder
in order to verify the amounts then owing under such obligations, to
determine whether such debtors have any offsets or counterclaims
against Grantor, and such other matters about which Lender may
inquire.
NOTIFICATION OF LENDER. Grantor will promptly deliver to Lender all
written notices, and will promptly give Lender written notice of any
other notices received by Grantor with respect to any matter that
adversely affects the Collateral, as a whole, in a material respect,
and Lender will promptly give like notice to Grantor of any such
notices received by Lender or its nominee.
EXPENDITURES BY LENDER. Grantor recognizes and agrees that Lender may incur
certain expenses in connection with Lender's exercise of rights under this
Agreement. If not discharged or paid when due and not being contested by
Grantor in good faith, Lender may (but shall not be obligated to) discharge or
pay any amounts required to be discharged or paid by Grantor under this
Agreement, including without limitation all taxes, Encumbrances and other
claims, at any time levied or placed on the Collateral. After an Event of
Default has occurred, Lender also may (but shall not be obligated to) pay all
reasonable costs for insuring, maintaining and preserving the Collateral,
including without limitation, the purchase of insurance protecting only
Lender's interest in the Collateral. Lender may further take such other action
or actions and incur such additional expenditures as Lender may reasonably deem
to be necessary and proper to cure or rectify any actions or inactions on
Grantor's part as may be required under this Agreement. Nothing under this
Agreement or otherwise shall obligate Lender to take any such actions or to
incur any such additional expenditures on Grantor's behalf, or as making Lender
in any way responsible or liable for any loss, damage, or injury to the
Collateral, to Grantor, or to any other person or persons, resulting from
Lender's election not to take such actions or to incur such additional
expenses. In addition, Lender's election to take any such actions or to incur
such additional expenditures shall not constitute a waiver or forbearance by
Lender of any Event of Default under this Agreement. All such expenditures for
such purposes, to the extent reasonably incurred for reasonable amounts, will
then bear interest at the rate charged under the Note from the date incurred or
paid by Lender to the date of repayment. All such expenditures for such
purposes, to the extent reasonably incurred for reasonable amounts, shall
become a part of the Indebtedness and, at Lender's option, will be payable on
demand. This Agreement also will secure payment of these amounts. Such right
shall be in addition to all other rights and remedies to which Lender may be
entitled upon the occurrence of an Event of Default.
EVENTS OF DEFAULT. The following actions or inactions or both shall constitute
Events of Default under this Agreement:
DEFAULT UNDER THIS AGREEMENT. Should Grantor violate, or fail to
comply fully with any of the terms and conditions of, or default under
this Agreement, and such violation or failure shall not have been
remedied within fifteen (15) days after notice of such violation or
failure by Lender to Grantor.
DEFAULT UNDER RELATED DOCUMENT. Should any event of default occur
under any Related Document, after expiration of any applicable cure
period.
RIGHTS AND REMEDIES ON DEFAULT. After an Event of Default occurs under this
Agreement, Lender shall have all the rights of a secured party under applicable
law, including, without limitation, those rights available to secured creditors
under the Louisiana Commercial Laws - Secured Transactions (La.-R.S. 10:9-101,
et seq.). In addition and without limitation, Lender may exercise any one or
more of the following rights and remedies:
ACCELERATE INDEBTEDNESS. Lender, at its sole option, may accelerate
the maturity and declare and demand immediate payment in full of any
and all Indebtedness secured hereby in principal, interest, costs,
expenses, attorneys' fees and other fees and charges.
SEIZURE AND SALE OF COLLATERAL IN LOUISIANA. In the event that Lender
elects to commence appropriate Louisiana foreclosure proceedings under
this Agreement after an Event of Default has occurred, Lender may
cause the Collateral, or any part or parts thereof, to be immediately
seized wherever found, and sold, whether in term of court or in
vacation, under ordinary or executory process, in accordance with
applicable Louisiana law, to the highest bidder for cash, with or
without appraisement, and without the necessity of making additional
demand upon or notifying Grantor or placing Grantor in default, all of
which are expressly waived.
CONFESSION OF JUDGMENT. For purposes of foreclosure under Louisiana
executory process procedures, Grantor confesses judgment and
acknowledges to be indebted unto and in favor of Lender, up to the
full amount of the Indebtedness, in principal, interest, costs,
expenses, attorneys' fees and other fees and charges. Grantor further
confesses judgment and acknowledges to be indebted unto and in favor
of Lender in the amount of all additional advances that Lender may
make on Grantor's behalf pursuant to this Agreement, together with
interest thereon, up to a maximum of two (2) times the face amount of
the aforesaid Note. To the extent permitted under applicable
Louisiana law, Grantor additionally waives (a) the benefit of
appraisal as provided in Articles 2332, 2336, 2723 and 2724 of the
Louisiana Code of Civil Procedure, and all other laws with regard to
appraisal upon judicial sale; (b) the demand and three (3) days' delay
as provided under Articles 2639 and 2721 of the Louisiana Code of
Civil Procedure; (c) the notice of seizure as provided under Articles
2293 and 2721 of the Louisiana Code of Civil Procedure; (d) the three
(3) days' delay provided under Articles 2331 and 2722 of the Louisiana
Code of Civil Procedure; and (e) all other benefits provided under
Articles 2331, 2722 and 2723 of the Louisiana Code of Civil Procedure
and all other Articles not specifically mentioned above.
KEEPER. Should any or all of the Collateral be seized as an incident
to an action for the recognition or enforcement of this Agreement, by
executory process, sequestration, attachment, writ of fieri facias or
otherwise, Grantor hereby agrees that the court issuing any such order
shall, if requested by Lender, appoint Lender, or any agent designated
by Lender, or any person or entity named by Lender at the time such
seizure is requested, or any time thereafter, as Keeper of the
Collateral as provided under La.-R.S. 9:5136, et seq. Such a Keeper
shall be entitled to reasonable compensation. Grantor agrees to pay
the reasonable fees of such Keeper, which are hereby fixed at $150.00
per hour, which compensation to the Keeper shall also be secured by
this Agreement in the form of an additional advance as provided
herein.
DECLARATION OF FACT. Should it become necessary for Lender to
foreclose under this Agreement, all declarations of fact, which are
made under an authentic act before a Notary Public in the presence of
two witnesses, by a person declaring such facts to lie within his or
her knowledge, shall constitute authentic evidence for purposes of
executory process and also for purposes of La.-R.S. 9:3509.1, La.-R.S.
9:3504(D)(6) and La.-R.S. 10:9-508, as applicable.
DELIVER COLLATERAL. This provision applies, to the extent applicable,
if and when the Collateral for any reason is located outside the State
of Louisiana following the occurrence of any Event of Default, or
should there be a subsequent change in Louisiana law permitting such
remedies. Lender may require Grantor to deliver to Lender all or any
portion of the Collateral and any and all certificates of title and
other documents relating to the Collateral. Lender may require
Grantor to assemble the Collateral and make it available to Lender at
a place to be designated by Lender. Lender also shall have full power
to enter upon the property of Grantor to take possession of and remove
the Collateral. If the Collateral contains other goods not covered by
this Agreement at the time of repossession, Grantor agrees Lender may
take such other goods, provided that Lender makes reasonable efforts
to return them to Grantor after repossession.
PUBLIC OR PRIVATE SALE OF COLLATERAL. To the extent that any of the
Collateral is then in Lender's possession, Lender shall have full
power to sell, lease, transfer, or otherwise deal with the Collateral
or proceeds thereof in its own name or that of Grantor. Lender may
sell the Collateral at public auction or private sale. Unless the
Collateral threatens to decline speedily in value or is of a type
customarily sold on
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09-11-1996 COMMERCIAL SECURITY AGREEMENT PAGE 6
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a recognized market, Lender shall give or mail to Grantor, or any of
them, notice at least ten (10) days in advance of the time and place
of any public sale, or of the date after which any private sale may be
made. Grantor agrees that any requirement of reasonable notice is
satisfied if Lender mails notice by ordinary mail addressed to
Grantor, or any of them, at the last address Grantor has given Lender
in writing. If a public sale is held, there shall be sufficient
compliance with all requirements of notice to the public by a single
publication in any newspaper of general circulation in the parish or
county where the Collateral is located, setting forth the time and
place of sale and a brief description of the property to be sold.
Lender may be a purchaser at any public sale. Grantor agrees that any
such sale shall be conclusively deemed to be conducted in a
commercially reasonable manner if it is made consistent with the
standard of similar sales of collateral by commercial banks in New
Orleans, Louisiana.
APPOINT RECEIVER. This provision applies if and when the Collateral
for any reason is located outside the State of Louisiana following the
occurrence of any Event of Default, or should Louisiana law change or
be interpreted to permit such a remedy. Lender shall have the
following rights and remedies regarding the appointment of a receiver:
(a) Lender may have a receiver appointed as a matter of right, (b) the
receiver may be an employee of Lender and may serve without bond, and
(c) all fees of the receiver and his or her attorney shall become part
of the Indebtedness secured by this Agreement and shall be payable on
demand, with interest at the Note rate from date of expenditure until
repaid.
COLLECT AND APPLY REVENUES. Lender shall have the right, at its sole
option and election, at any time, whether or not one or more Events of
Default then exist under this Agreement, to directly collect and
receive all proceeds and/or payments arising under or in any way
accruing from the Collateral, as such amounts become due and payable.
In order to permit the foregoing, Grantor unconditionally agrees to
deliver to Lender, immediately following demand, any and all of
Grantor's records, ledger sheets, and other documentation, in the form
requested by Lender, with regard to the Collateral and any and all
proceeds and/or payments applicable thereto. Lender shall have the
further right, whether or not an Event of Default then exists under
this Agreement, where appropriate and within Lender's sole discretion,
to collect any and all proceeds and payments that may then and/or in
the future be due and owing under this Agreement. Until an Event of
Default has occurred and Lender has exercised the right to accelerate
the maturity of any or all of the Indebtedness, all amounts so
collected and received will be deposited into the dominion account
provided for in the Loan Agreement. All proceeds and/or payments
arising under or in any way accruing from the Collateral directly
collected and received by Lender under this Agreement in excess of the
amounts owed under all of the Indebtedness secured by this Agreement
will be paid by Lender to Grantor by deposit into an account
maintained by Grantor with Lender or as otherwise requested, in
writing, by Grantor.
ADDITIONAL EXPENSES. In the event that it should become necessary for
Lender to conduct a search for any of the Collateral in connection
with any foreclosure action, or should it be necessary to remove the
Collateral, or any part or parts thereof, from the premises in which
or on which the Collateral is then located, and/or to store and/or
refurbish such Collateral, Grantor agrees to reimburse Lender for the
reasonable cost of conducting such a search and/or removing and/or
storing and/or refurbishing such Collateral, which additional expense
shall also be secured by the lien of this Agreement.
SPECIFIC PERFORMANCE. Lender may, in addition to the foregoing
remedies, or in lieu thereof, in Lender's sole discretion, commence an
appropriate action against Grantor seeking specific performance of any
covenant contained herein, or in aid of the execution or enforcement
of any power herein granted.
OBTAIN DEFICIENCY. Lender may obtain a judgment against Grantor for
any deficiency remaining on the Indebtedness due to Lender after
application of all amounts received from the exercise of the rights
provided in this Agreement and any Related Document.
OTHER RIGHTS AND REMEDIES. Have and exercise any or all of the rights
and remedies of a secured creditor under the provisions of the
Louisiana Commercial Laws - Secured Transactions (La.-R.S. 10:9-101,
et seq.), at law, in equity, or otherwise.
CUMULATIVE REMEDIES. All of Lender's rights and remedies, whether
evidenced by this Agreement or the Related Documents or by any other
writing, shall be cumulative and may be exercised singularly or
concurrently. Election by Lender to pursue any remedy shall not
exclude pursuit of any other remedy, and an election to make
expenditures or to take action to perform an obligation of Grantor
under this Agreement, after Grantor's failure to perform, shall not
affect Lender's right to declare a default and to exercise its
remedies. Nothing under this Agreement or otherwise shall be
construed so as to limit or restrict the rights and remedies available
to Lender following an Event of Default, or in any way to limit or
restrict the rights and ability of Lender to proceed directly against
Grantor and/or against any Guarantor and/or to proceed against any
other collateral directly or indirectly securing the Indebtedness.
ASSIGNMENT OF INDEBTEDNESS; TRANSFER OF COLLATERAL. Grantor hereby recognizes
and agrees that Lender may assign all or any portion of the Indebtedness to one
or more third party creditors subject to the terms and conditions of the Loan
Agreement. Grantor additionally agrees that any and all of Grantor's other and
future loans, extensions of credit, liabilities and obligations in favor of
such a third party assignee will be secured by the Collateral. Grantor further
agrees that Lender may transfer all or any portion of the Collateral to such a
third party assignee, in which case Lender will be fully released from any and
all of Lender's obligations and responsibilities to Grantor with regard to the
transferred Collateral. Subject to the notice provisions of the Loan
Agreement, any third party creditor to whom the Collateral is transferred will
acquire all of Lender's rights and powers with respect to the transferred
Collateral, with Lender retaining all powers and rights with regard to any of
the Collateral which is not transferred to another party.
PROTECTION OF LENDER'S SECURITY RIGHTS. Grantor agrees to appear in and to
defend all actions or proceedings purporting to affect Lender's security rights
and interests granted under this Agreement. In the event that Lender elects to
defend any such action or proceeding, Grantor agrees to reimburse Lender for
Lender's reasonable costs associated therewith, including without limitation,
Lender's attorneys' fees, which additional costs and expenses shall be secured
by this Agreement.
INDEMNIFICATION OF LENDER. Grantor agrees to indemnify, to defend and to save
and hold Lender harmless from any and all claims, suits, obligations, damages,
losses, costs, expenses (including without limitation, Lender's reasonable
attorneys' fees), demands, liabilities, penalties, fines and forfeitures of any
nature whatsoever which may be asserted against or incurred by Lender, arising
out of or in any manner occasioned by this Agreement or the rights and remedies
granted to Lender hereunder; provided, however, that this indemnity and hold
harmless provision shall not apply to any such claims asserted against Lender
by any participant, transferee, shareholder, officer, director of Lender or a
subsidiary or affiliate of Lender (who is not also a shareholder, officer,
director of Grantor or SEARCH CAPITAL GROUP, INC., or a subsidiary or affiliate
of Grantor or SEARCH CAPITAL GROUP, INC. The foregoing indemnity provision
shall survive the cancellation of this Agreement as to all matters arising or
accruing prior to such cancellation, and the foregoing indemnity provision
shall further survive in the event that Lender elects to exercise any of the
remedies as provided under this Agreement following any Event of Default
hereunder.
EXECUTION OF ADDITIONAL DOCUMENTS. Grantor agrees to execute all additional
documents, instruments and agreements that Lender may deem to be reasonably
necessary and proper, within its sole discretion, in form and substance
satisfactory to Lender, to keep this Agreement in effect, to better reflect the
true intent of this Agreement, and to consummate fully all of the transactions
contemplated hereby and by any other agreement, instrument or document
heretofore, now or at any time or times hereafter executed by Grantor and
delivered to Lender.
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LOAN NO. (CONTINUED)
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INSPECTION; AUDITS. Lender and its agents may periodically enter upon
Grantor's premises at reasonable hours and inspect the Collateral. Lender and
its agents may also periodically conduct audits of the Collateral and may
further inspect and audit Grantor's books and records that in any way pertain
to the Collateral and any part or parts thereof.
APPLICATION OF PAYMENTS. Grantor agrees that all payments and other sums and
amounts received by Lender under the Indebtedness or under this Agreement,
shall be applied: first, to reimburse Lender for its costs of collecting the
same (including but not limited to, reimbursement of Lender's reasonable
attorneys' fees); second, to the repayment of interest on all additional
advances that Lender may have made on Grantor's behalf pursuant to this
Agreement; third, to the payment of principal of all such additional advances;
and finally, to the payment of principal and interest on the Indebtedness then
outstanding, which may be applied in such order and priority as Lender may
determine within its sole discretion.
TAXATION. In the event that there should be any change in law with regard to
taxation of security agreements or the debts they secure, Grantor agrees to pay
any taxes, assessments or charges that may be imposed upon Lender as a result
of this Agreement, subject to the right of Grantor to contest imposition of
such taxes, assessments or charges. Payment by Grantor to Lender of such
taxes, assessments and charges shall not be due and payable as long as the
imposition of same is being contested in good faith by Grantor.
EFFECT OF WAIVERS. Grantor has waived, and/or does by these presents waive,
presentment for payment, protest, notice of protest, notice of nonpayment,
notice of acceleration and notice of intent to accelerate under all of the
Indebtedness secured by this Agreement. Grantor has further waived, and/or
does by these presents waive, all pleas of division and discussion, and all
similar rights with regard to the Indebtedness, and agrees that Grantor shall
remain liable, together with any and all Guarantors of the Indebtedness, on a
"solidary" or "joint and several" basis. Grantor further agrees that discharge
or release of any party who is, may, or will be liable to Lender under any of
the Indebtedness, or the release of the Collateral or any other collateral
directly or indirectly securing repayment of the same, shall not have the
effect of releasing or otherwise diminishing or reducing the actual or
potential liability of Grantor and/or any other party or parties guaranteeing
payment of the Indebtedness, who shall remain liable to Lender, and/or remain
liable to Lender, and/or of releasing any Collateral or other collateral that
is not expressly released by Lender. Grantor additionally agrees that Lender's
acceptance of payments other than in accordance with the terms of any
agreement, or agreements governing repayment of the Indebtedness, or Lender's
subsequent agreement to extend or modify such repayment terms, shall likewise
not have the effect of releasing Grantor, and/or any other party or parties
guaranteeing payment of the Indebtedness, from their respective obligations to
Lender, and/or of releasing any of the Collateral or other collateral directly
or indirectly securing repayment of the Indebtedness. In addition, no course
of dealing between Grantor and Lender, nor any failure or delay on the part of
Lender to exercise any of the rights and remedies granted to Lender under this
Agreement, or under any other agreement or agreements by and between Grantor
and Lender, shall have the effect of waiving any of Lender's rights and
remedies. Any partial exercise of any rights and remedies granted to Lender
shall furthermore not constitute a waiver of any of Lender's other rights and
remedies, it being Grantor's intent and agreement that Lender's rights and
remedies shall be cumulative in nature. Grantor further agrees that, upon the
occurrence of any Event of Default under this Agreement, any waiver or
forbearance on the part of Lender to pursue the rights and remedies available
to Lender, shall be binding upon Lender only to the extent that Lender
specifically agrees to any such waiver or forbearance in writing. A waiver or
forbearance as to one Event of Default shall not constitute a waiver or
forbearance as to any other Event of Default. None of the warranties,
conditions, provisions and terms contained in this Agreement or any other
agreement, document, or instrument now or hereafter executed by Grantor and
delivered to Lender, shall be deemed to have been waived by any act or
knowledge of Lender, Lender's agents, officers or employees; but only by an
instrument in writing specifying such waiver, signed by a duly authorized
officer of Lender and delivered to Grantor.
MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of
this Agreement:
AMENDMENTS. No alteration of or amendment to this Agreement shall be
effective unless given in writing and signed by the party or parties
sought to be charged or bound by the alteration or amendment.
APPLICABLE LAW. THIS AGREEMENT HAS BEEN DELIVERED TO LENDER AND
ACCEPTED BY LENDER IN THE STATE OF LOUISIANA. LENDER AND GRANTOR
HEREBY WAIVE THE RIGHT TO ANY JURY TRIAL IN ANY ACTION, PROCEEDING, OR
COUNTERCLAIM BROUGHT BY EITHER LENDER OR GRANTOR AGAINST THE OTHER.
EXCEPT TO THE EXTENT THAT THE APPLICATION OF THE LAW OF ANOTHER STATE
IS MANDATORY, THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF LOUISIANA.
ATTORNEYS' FEES; EXPENSES. Grantor agrees to pay upon demand all of
Lender's costs and expenses, including attorneys' fees and Lender's
legal expenses, incurred in connection with the enforcement of this
Agreement. Lender may pay someone else to help enforce this
Agreement, and Grantor shall pay the costs and expenses of such
enforcement. Costs and expenses include Lender's attorneys' fees and
legal expenses whether or not there is a lawsuit, including attorneys'
fees and legal expenses for bankruptcy proceedings (and including
efforts to modify or vacate any automatic stay or injunction),
appeals, and any anticipated post-judgment collection services.
Grantor also shall pay all court costs and such additional fees as may
be directed by the court.
CAPTION HEADINGS. Caption headings in this Agreement are for
convenience purposes only and are not to be used to interpret or
define the provisions of this Agreement.
ENTIRE AGREEMENT. This Agreement, the Note, and the other Related
Documents, embody the final, entire agreement of the parties hereto
and supersede any and all prior commitments, agreements,
representations, and understandings, whether written or oral, relating
to the subject matter hereof and may not be contradicted or varied by
evidence of prior, contemporaneous, or subsequent oral agreements or
discussions of the parties hereto. THERE ARE NO ORAL AGREEMENTS
BETWEEN THE PARTIES TO THIS AGREEMENT.
NOTICES. To give Grantor any notice required under this Agreement,
Lender may hand deliver or mail such notice to Grantor at the address
specified for Grantor in this Agreement, or at any other address that
Grantor may have given to Lender by written notice as provided in this
paragraph. To give Lender any notice under this Agreement, Grantor
may hand deliver or mail such notice to Lender at the address
specified in this Agreement, or at any other address that Lender may
have given to Grantor by written notice as provided in this paragraph.
All notices required or permitted under this Agreement must be in
writing and will be considered as given on the day it is delivered by
hand or deposited in the U. S. Mail in the form and to the address
specified in this Agreement.
POWER OF ATTORNEY. At all times and even though no Event of Default
exists, Grantor hereby appoints Lender as its true and lawful
attorney-in-fact, irrevocably, with full power of substitution to do
the following: (a) to demand, collect, receive, receipt for, and
recover all sums of money or other property which may now or hereafter
become due, owing or payable from the Collateral; (b) to execute, sign
and endorse any and all claims, instruments, receipts, checks, drafts
or warrants issued in payment for the Collateral; and (c) to notify
postal authorities to change the address for delivery of mail
addressed to Grantor to such address as Lender may designate. After
an Event of Default has occurred, Grantor hereby appoints Lender as
its true and lawful attorney-in-fact, irrevocably, with full power of
substitution to do the following: (i) to xxx for all sums of money or
other property which may now or hereafter become due, owing or payable
from the Collateral; (ii) to settle or compromise any and all claims
arising under the Collateral, and, in the place and stead of Grantor,
to execute and deliver its release and settlement for the claim; and
(iii) to file any claim or claims or to take any action or institute
or take part in any proceedings, either in its own name or in the name
of Grantor, or otherwise, which in the discretion of Lender may seem
to be necessary or advisable. These powers are given as security for
the Indebtedness, and the authorities hereby conferred are, and shall
be irrevocable, and shall remain in full force and effect until
renounced by Lender.
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SEVERABILITY. If a court of competent jurisdiction finds any
provision of this Agreement to be invalid or unenforceable as to any
person or circumstance, such finding shall not render that provision
invalid or unenforceable as to any other persons or circumstances. If
feasible, any such offending provision shall be deemed to be modified
to be within the limits of enforceability or validity; however, if the
offending provision cannot be so modified, it shall be stricken and
all other provisions of this Agreement in all other respects shall
remain valid and enforceable.
SOLE DISCRETION OF LENDER. Whenever Lender's consent or approval is
required under this Agreement, the decision as to whether or not to
consent or approve shall be in the sole and exclusive discretion of
Lender, reasonably exercised, and Lender's decision shall be final and
conclusive, absent manifest error.
SUCCESSORS AND ASSIGNS BOUND; SOLIDARY LIABILITY. Grantor's
obligations and agreements under this Agreement shall be binding upon
Grantor's successors, heirs, legatees, devisees, administrators,
executors and assigns. In the event that there is more than one
Grantor under this Agreement, all of the agreements and obligations
made and/or incurred by Grantors under this Agreement shall be on a
"solidary" or "joint and several" basis.
GRANTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS COMMERCIAL SECURITY
AGREEMENT AND GRANTOR AGREES TO ITS TERMS. THIS AGREEMENT IS DATED SEPTEMBER
11, 1996.
GRANTOR:
SEARCH FUNDING II, INC.
By: /s/ Xxxxxx X. Xxxx
-----------------------------------------------------
Xxxxxx X. Xxxx, Senior Executive Vice President
LENDER:
HIBERNIA NATIONAL BANK
By: /s/ Xxxx Xxxxxxx
-----------------------------------------------------
Authorized Officer
