EXHIBIT 10.52
FORM
OF
SECURITY AGREEMENT
THIS SECURITY AGREEMENT ("Agreement") is made as of the 30th day of May,
2003, by U.S. REMODELERS, INC., a Delaware corporation (hereinafter called
"Debtor", whether one or more), whose principal place of business and chief
executive office, as applicable (as those terms are used in the Code) is located
at 000 Xxxxx Xxxxxxx 000 Xxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxx 00000 whose
organization number is 2709848, in favor of THE FROST NATIONAL BANK, a national
banking association ("Secured Party"), whose address is X.X. Xxx 0000, Xxx
Xxxxxxx, Xxxxx 00000. Debtor hereby agrees with Secured Party as follows:
1. Definitions. As used in this Agreement, the following terms shall have
the meanings indicated below:
(a) The term "Obligor" shall mean U.S. HOME SYSTEMS, INC.
(b) The term "Code" shall mean the Texas Business and Commerce Code as in
effect in the State of Texas on the date of this Agreement or as it may
hereafter be amended from time to time.
(c) The term "Collateral" shall mean all of the personal property of Debtor
as set forth below (as indicated), wherever located, and now owned or
hereafter acquired:
(i) All "accounts", as defined in the Code (including
health-care-insurance receivables), together with any and all books of
account, customer lists and other records relating in any way to the
foregoing (including, without limitation, computer software, whether
on tape, disk, card, strip, cartridge or any other form), and in any
case where an account arises from the sale of goods, the interest of
Debtor in such goods.
(ii) All "inventory" as defined in the Code, and all records relating
in any way to the foregoing (including, without limitation, any
computer software, whether on tape, disk, card, strip, cartridge or
any other form).
(iii) All "chattel paper" as defined in the Code, and all records
relating in any way to the foregoing (including, without limitation,
any computer software, whether on tape, disk, card, strip, cartridge
or any other form).
(iv) All "equipment" as defined in the Code, of whatsoever kind and
character now or hereafter possessed, held, acquired, leased or owned
by Debtor and used or usable in Debtor's business, and in any event
shall include, but shall not be limited to, all machinery, tools,
computer software, office equipment, furniture, appliances,
furnishings, fixtures, vehicles, motor vehicles, together with all
replacements, accessories, additions, substitutions and accessions to
all of the foregoing, and all manuals, instructions and records
relating in any way to the foregoing (including, without limitation,
any computer software, whether on tape, disk, card, strip, cartridge
or any other form).
(v) All "instruments" as defined in the Code (including promissory
notes), and all records relating in any way to the foregoing
(including, without limitation, any computer software, whether on
tape, disk, card, strip, cartridge or any other form).
(vi) All "investment property" as defined in the Code, and all records
relating in any way to the foregoing (including, without limitation,
any computer software, whether on tape, disk, card, strip, cartridge
or any other form).
(vii) All "documents" as defined in the Code, and all records relating
in any way to the foregoing (including, without limitation, any
computer software, whether on tape, disk, card, strip, cartridge or
any other form).
(viii) All "deposit accounts" as defined in the Code, and all records
relating in any way to the foregoing (including, without limitation,
any computer software, whether on tape, disk, card, strip, cartridge
or any other form).
(ix) All "letter of credit rights" as defined in the Code, and all
records relating in any way to the foregoing (including, without
limitation, any computer software, whether on tape, disk, card, strip,
cartridge or any other form).
(x) All "general intangibles" as defined in the Code, and all records
relating in any way to the foregoing (including, without limitation,
any computer software, whether on tape, disk, card, strip, cartridge
or any other form), including all permits, regulatory approvals,
copyrights, patents, trademarks, service marks, trade names, mask
works, goodwill, licenses and all other intellectual property owned by
Debtor or used in Debtor's business.
(xi) All "supporting obligations" as defined in the Code, and all
records relating in any way to the foregoing (including, without
limitation, any computer software, whether on tape, disk, card, strip,
cartridge or any other form).
The term Collateral, as used herein, shall also include all PRODUCTS and
PROCEEDS of all of the foregoing (including without limitation, insurance
payable by reason of loss or damage to the foregoing property) and any
property, securities, guaranties or monies of Debtor which may at any time
come into the possession of Secured Party; provided that the term
Collateral shall not include any real property owned by Debtor or its
affiliates, including without limitation, that certain real property owned
by Debtor or one of its affiliates, that is located in Xxxxxxx Xxxx,
Xxxxxxxx xxx Xxxxxxxxxx, Xxxxxxxx. The designation of proceeds does not
authorize Debtor to sell, transfer or otherwise convey
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any of the foregoing property except finished goods intended for sale in
the ordinary course of Debtor's business or as otherwise provided herein.
(d) The term "Indebtedness" shall mean (i) all indebtedness, obligations
and liabilities of Obligor to Secured Party of any kind or character, now
existing or hereafter arising, whether direct, indirect, related,
unrelated, fixed, contingent, liquidated, unliquidated, joint, several or
joint and several, and regardless of whether such indebtedness, obligations
and liabilities may, prior to their acquisition by Secured Party, be or
have been payable to or in favor of a third party and subsequently acquired
by Secured Party (it being contemplated that Secured Party may make such
acquisitions from third parties), including without limitation all
indebtedness, obligations and liabilities of Obligor to Secured Party now
existing or hereafter arising by note, draft, acceptance, guaranty,
endorsement, letter of credit, assignment, purchase, overdraft, discount,
indemnity agreement or otherwise, including, without limitation (a) that
one certain promissory note dated of even date herewith, in the original
principal amount of $5,000,000, executed by Obligor and payable to the
order of Secured Party, (b) that one certain promissory note dated of even
date herewith, in the original principal amount of $2,000,000, executed by
Obligor and payable to the order of Secured Party and (c) that one certain
promissory note dated of even date herewith, in the original principal
amount of $775,000 executed by Obligor and payable to the order of Secured
Party, (ii) all accrued but unpaid interest on any of the indebtedness
described in (i) above, (iii) all obligations of Obligor to Secured Party
under any documents evidencing, securing, governing and/or pertaining to
all or any part of the indebtedness described in (i) and (ii) above, (iv)
all costs and expenses incurred by Secured Party in connection with the
collection and administration of all or any part of the indebtedness and
obligations described in (i), (ii) and (iii) above or the protection or
preservation of, or realization upon, the collateral securing all or any
part of such indebtedness and obligations, including without limitation all
reasonable attorneys' fees, and (v) all renewals, extensions, modifications
and rearrangements of the indebtedness and obligations described in (i),
(ii), (iii) and (iv) above.
(e) The term "Loan Documents" shall mean all instruments and documents
evidencing, securing, governing, guaranteeing and/or pertaining to the
Indebtedness.
(f) The term "Obligated Party" shall mean any party other than Obligor,
including, without limitation, Debtor, who secures, guarantees and/or is
otherwise obligated to pay all or any portion of the Indebtedness.
All words and phrases used herein which are expressly defined in Section 1.201
or Chapter 9 of the Code shall have the meaning provided for therein. Other
words and phrases defined elsewhere in the Code shall have the meaning specified
therein except to the extent such meaning is inconsistent with a definition in
Section 1.201 or Chapter 9 of the Code.
2. Security Interest. As security for the Indebtedness, Debtor, for value
received, hereby pledges and grants to Secured Party a continuing security
interest in the Collateral.
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3. Representations and Warranties. In addition to any representations and
warranties of Debtor set forth in the Loan Documents, which are incorporated
herein by this reference, Debtor hereby represents and warrants the following to
Secured Party:
(a) Authority. The execution, delivery and performance of this Agreement
and all of the other Loan Documents by Debtor have been duly authorized by
all necessary corporate action of Debtor, to the extent Debtor is a
corporation, by all necessary partnership action, to the extent Debtor is a
partnership, or by all necessary limited liability company action, to the
extent Debtor is a limited liability company.
(b) Accuracy of Information. All information heretofore, herein or
hereafter supplied to Secured Party by or on behalf of Debtor with respect
to the Collateral is true and correct. The exact legal name, social
security number (if applicable), tax identification number, employee
identification number and organization number of Debtor is correctly shown
in the first paragraph hereof.
(c) Enforceability. This Agreement and the other Loan Documents constitute
legal, valid and binding obligations of Debtor, enforceable in accordance
with their respective terms, except as limited by bankruptcy, insolvency or
similar laws of general application relating to the enforcement of
creditors' rights and except to the extent specific remedies may generally
be limited by equitable principles.
(d) Ownership and Liens. Debtor has good and marketable title to the
Collateral free and clear of all liens, security interests, encumbrances or
adverse claims, except for the security interest created by this Agreement.
No dispute, right of setoff, counterclaim or defense exists with respect to
all or any part of the Collateral. Debtor has not executed any other
security agreement currently affecting the Collateral and no effective
financing statement or other instrument similar in effect covering all or
any part of the Collateral is on file in any recording office except as may
have been executed or filed in favor of Secured Party.
(e) No Conflicts or Consents. Neither the ownership, the intended use of
the Collateral by Debtor, the grant of the security interest by Debtor to
Secured Party herein nor the exercise by Secured Party of its rights or
remedies hereunder, will (i) conflict with any provision of (A) any
domestic or foreign law, statute, rule or regulation, (B) the articles or
certificate of incorporation, charter, bylaws, partnership agreement,
articles or certificate of organization, or regulations as the case may be,
of Debtor, or (C) any agreement, judgment, license, order or permit
applicable to or binding upon Debtor, or (ii) result in or require the
creation of any lien, charge or encumbrance upon any assets or properties
of Debtor or of any person except as may be expressly contemplated in the
Loan Documents. Except as expressly contemplated in the Loan Documents, no
consent, approval, authorization or order of, and no notice to or filing
with, any court, governmental authority or third party is required in
connection with the grant by Debtor of the security interest herein or the
exercise by Secured Party of its rights and remedies hereunder.
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(f) Security Interest. Debtor has and will have at all times full right,
power and authority to grant a security interest in the Collateral to
Secured Party in the manner provided herein, free and clear of any lien,
security interest or other charge or encumbrance. This Agreement creates a
legal, valid and binding security interest in favor of Secured Party in the
Collateral securing the Indebtedness. To the extent permitted in the Code,
possession by Secured Party of all certificates, instruments and cash
constituting Collateral from time to time and/or the filing of the
financing statements delivered prior hereto and/or concurrently herewith by
Debtor to Secured Party will perfect and establish the first priority of
Secured Party's security interest hereunder in the Collateral.
(g) Location/Identity. Debtor's principal place of business and chief
executive office (as those terms are used in the Code), as the case may be
is located at the address set forth on the first page hereof. Except as
specified elsewhere herein, all Collateral and records concerning the
Collateral shall be kept at such address. Debtor's organizational
structure, state of organization, and organizational number (the
"Organizational Information") are as set forth on the first page hereof.
Except as specified herein, the Organizational Information shall not
change.
(h) Solvency of Debtor. As of the date hereof, and after giving effect to
this Agreement and the completion of all other transactions contemplated by
Debtor at the time of the execution of this Agreement, (i) Debtor is and
will be solvent, (ii) the fair saleable value of Debtor's assets exceeds
and will continue to exceed Debtor's liabilities (both fixed and
contingent), (iii) Debtor is paying and will continue to be able to pay its
debts as they mature, and (iv) if Debtor is not an individual, Debtor has
and will have sufficient capital to carry on Debtor's businesses and all
businesses in which Debtor is about to engage.
(i) Exclusion of Certain Collateral. Unless otherwise agreed by Secured
Party, the Collateral does not include any aircraft, watercraft or vessels,
railroad cars, railroad equipment, locomotives or other rolling stock
intended for a use related to interstate commerce.
(j) Inventory. The security interest in the inventory shall continue
through all stages of manufacture and shall, without further action, attach
to the accounts or other proceeds resulting from the sale or other
disposition thereof and to all such inventory as may be returned to Debtor
by its account debtors.
(k) Accounts. Each account represents the valid and legally binding
indebtedness of a bona fide account debtor arising from the sale or lease
by Debtor of goods or the rendition by Debtor of services and is not
subject to contra accounts, setoffs, defenses or counterclaims by or
available to account debtors obligated on the accounts except as disclosed
by Debtor to Secured Party from time to time in writing. The amount shown
as
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to each account on Debtor's books is the true and undisputed amount owing
and unpaid thereon, subject only to discounts, allowances, rebates, credits
and adjustments to which the account debtor has a right and which have been
disclosed to Secured Party in writing.
(l) Chattel Paper, Documents and Instruments. The chattel paper, documents
and instruments of Debtor pledged hereunder have only one original
counterpart and no party other than Debtor or Secured Party is in actual or
constructive possession of any such chattel paper, documents or
instruments.
4. Affirmative Covenants. In addition to all covenants and agreements of
Debtor set forth in the Loan Documents, which are incorporated herein by this
reference, Debtor will comply with the covenants contained in this Section 4 at
all times during the period of time this Agreement is effective unless Secured
Party shall otherwise consent in writing.
(a) Ownership and Liens. Debtor will maintain good and marketable title to
all Collateral free and clear of all liens, security interests,
encumbrances or adverse claims, except for the security interest created by
this Agreement and the security interests and other encumbrances expressly
permitted herein or by the other Loan Documents. Debtor will not permit any
dispute, right of setoff, counterclaim or defense to exist with respect to
all or any part of the Collateral. Debtor will cause any financing
statement or other security instrument with respect to the Collateral to be
terminated, except as may exist or as may have been filed in favor of
Secured Party. Debtor hereby irrevocably appoints Secured Party as Debtor's
attorney-in-fact, such power of attorney being coupled with an interest,
with full authority in the place and stead of Debtor and in the name of
Debtor or otherwise, for the purpose of terminating any financing
statements currently filed with respect to the Collateral. Debtor will
defend at its expense Secured Party's right, title and security interest in
and to the Collateral against the claims of any third party.
(b) Further Assurances. Debtor will from time to time at its expense
promptly execute and deliver all further instruments and documents and take
all further action necessary or appropriate or that Secured Party may
request in order (i) to perfect and protect the security interest created
or purported to be created hereby and the first priority of such security
interest, (ii) to enable Secured Party to exercise and enforce its rights
and remedies hereunder in respect of the Collateral, and (iii) to otherwise
effect the purposes of this Agreement, including without limitation: (A)
executing (if requested) and filing such financing or continuation
statements, or amendments thereto; and (B) furnishing to Secured Party from
time to time statements and schedules further identifying and describing
the Collateral and such other reports in connection with the Collateral,
all in reasonable detail satisfactory to Secured Party.
(c) Inspection of Collateral. Debtor will keep adequate records concerning
the Collateral and will permit Secured Party and all representatives and
agents appointed by Secured Party to inspect any of the Collateral and the
books and records of or relating to the Collateral at any time during
normal business hours, to make and take away
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photocopies, photographs and printouts thereof and to write down and record
any such information.
(d) Payment of Taxes. Debtor (i) will timely pay all property and other
taxes, assessments and governmental charges or levies imposed upon the
Collateral or any part thereof, (ii) will timely pay all lawful claims
which, if unpaid, might become a lien or charge upon the Collateral or any
part thereof, and (iii) will maintain appropriate accruals and reserves for
all such liabilities in a timely fashion in accordance with generally
accepted accounting principles. Debtor may, however, delay paying or
discharging any such taxes, assessments, charges, claims or liabilities so
long as the validity thereof is contested in good faith by proper
proceedings and provided Debtor has set aside on Debtor's books adequate
reserves therefor; provided, however, Debtor understands and agrees that in
the event of any such delay in payment or discharge and upon Secured
Party's written request, Debtor will establish with Secured Party an escrow
acceptable to Secured Party adequate to cover the payment of such taxes,
assessments and governmental charges with interest, costs and penalties and
a reasonable additional sum to cover possible costs, interest and penalties
(which escrow shall be returned to Debtor upon payment of such taxes,
assessments, governmental charges, interests, costs and penalties or
disbursed in accordance with the resolution of the contest to the claimant)
or furnish Secured Party with an indemnity bond secured by a deposit in
cash or other security acceptable to Secured Party. Notwithstanding any
other provision contained in this Subsection, Secured Party may at its
discretion exercise its rights under Subsection 6(c) at any time to pay
such taxes, assessments, governmental charges, interest, costs and
penalties.
(e) Mortgagee's and Landlord's Waivers. Debtor shall cause each mortgagee
of real property owned by Debtor and each landlord of real property leased
by Debtor to execute and deliver agreements satisfactory in form and
substance to Secured Party by which such mortgagee or landlord waives or
subordinates any rights it may have in the Collateral.
(f) Control Agreements. Debtor will cooperate with Secured Party in
obtaining a control agreement in form and substance satisfactory to Secured
Party with respect to Collateral consisting of:
(i) Deposit Accounts;
(ii) Investment Property;
(iii) Letter-of-credit rights; and
(iv) Electronic chattel paper.
(g) Insurance. Debtor will, at its own expense, maintain insurance with
respect to all Collateral which constitutes goods in such amounts, against
such risks, in such form and with such insurers, as shall be satisfactory
to Secured Party from time to time. If
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requested by Secured Party, each policy for property damage insurance shall
provide for all losses to be paid directly to Secured Party. If requested
by Secured Party, each policy of insurance maintained by Debtor shall (i)
name Debtor and Secured Party as insured parties thereunder (without any
representation or warranty by or obligation upon Secured Party) as their
interests may appear, (ii) contain the agreement by the insurer that any
loss thereunder shall be payable to Secured Party notwithstanding any
action, inaction or breach of representation or warranty by Debtor, (iii)
provide that there shall be no recourse against Secured Party for payment
of premiums or other amounts with respect thereto, and (iv) provide that at
least thirty (30) days prior written notice of cancellation or of lapse
shall be given to Secured Party by the insurer. Debtor will, if requested
by Secured Party, deliver to Secured Party original or duplicate policies
of such insurance and, as often as Secured Party may reasonably request, a
report of a reputable insurance broker with respect to such insurance.
Debtor will also, at the request of Secured Party, duly execute and deliver
instruments of assignment of such insurance policies and cause the
respective insurers to acknowledge notice of such assignment. All insurance
payments in respect of loss of or damage to any Collateral shall be paid to
Secured Party and applied as Secured Party in its sole discretion deems
appropriate.
(h) Accounts and General Intangibles. Debtor will, except as otherwise
provided in Subsection 6(e), collect, at Debtor's own expense, all amounts
due or to become due under each of the accounts and general intangibles. In
connection with such collections, Debtor may and, at Secured Party's
direction, will take such action not otherwise forbidden by Subsection 5(e)
as Debtor or Secured Party may deem necessary or advisable to enforce
collection or performance of each of the accounts and general intangibles.
Debtor will also duly perform and cause to be performed all of its
obligations with respect to the goods or services, the sale or lease or
rendition of which gave rise or will give rise to each account and all of
its obligations to be performed under or with respect to the general
intangibles. Debtor also covenants and agrees to take any action and/or
execute any documents that Secured Party may request in order to comply
with the Federal Assignment of Claims Act, as amended.
(i) Chattel Paper, Documents and Instruments. Debtor will take such action
as may be requested by Secured Party in order to cause any chattel paper,
documents or instruments to be valid and enforceable and will cause all
chattel paper to have only one original counterpart. Upon request by
Secured Party, Debtor will deliver to Secured Party all originals of
chattel paper, documents or instruments and will xxxx all chattel paper
with a legend indicating that such chattel paper is subject to the security
interest granted hereunder.
5. Negative Covenants. Debtor will comply with the covenants contained in
this Section 5 at all times during the period of time this Agreement is
effective, unless Secured Party shall otherwise consent in writing.
(a) Transfer or Encumbrance. Debtor will not (i) sell, assign (by operation
of law or otherwise), transfer, exchange, lease or otherwise dispose of any
of the Collateral,
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(ii) xxxxx x xxxx or security interest in or execute, authorize, file or
record any financing statement or other security instrument with respect to
the Collateral to any party other than Secured Party, or (iii) deliver
actual or constructive possession of any of the Collateral to any party
other than Secured Party, except for (A) sales and leases of inventory in
the ordinary course of business, and (B) the sale or other disposal of any
item of equipment which is worn out or obsolete and which has been replaced
by an item of equal suitability and value, owned by Debtor and made subject
to the security interest under this Agreement, but which is otherwise free
and clear of any lien, security interest, encumbrance or adverse claim;
provided, however, the exceptions permitted in clauses (A) and (B) above
shall automatically terminate upon the occurrence of an Event of Default.
(b) Impairment of Security Interest. Debtor will not take or fail to take
any action which would in any manner impair the value or enforceability of
Secured Party's security interest in any Collateral.
(c) Possession of Collateral. Debtor will not cause or permit the removal
of any Collateral from its possession, control and risk of loss, nor will
Debtor cause or permit the removal of any Collateral (or records concerning
the Collateral) from the address on the first page hereof other than (i) as
permitted by Subsection 5(a), or (ii) in connection with the possession of
any Collateral by Secured Party or by its bailee. If any Collateral is in
the possession of a third party, Debtor will join with Secured Party in
notifying the third party of Secured Party's security interest therein and
obtaining an acknowledgment from the third party that it is holding the
Collateral for the benefit of Secured Party.
(d) Goods. Debtor will not permit any Collateral which constitutes goods to
at any time (i) be covered by any document except documents in the
possession of the Secured Party, (ii) become so related to, attached to or
used in connection with any particular real property so as to become a
fixture upon such real property, or (iii) be installed in or affixed to
other goods so as to become an accession to such other goods unless such
other goods are subject to a perfected first priority security interest
under this Agreement.
(e) Compromise of Collateral. Debtor will not adjust, settle, compromise,
amend or modify any Collateral, except an adjustment, settlement,
compromise, amendment or modification in good faith and in the ordinary
course of business; provided, however, this exception shall automatically
terminate upon the occurrence of an Event of Default or upon Secured
Party's written request. Debtor shall provide to Secured Party such
information concerning (i) any adjustment, settlement, compromise,
amendment or modification of any Collateral, and (ii) any claim asserted by
any account debtor for credit, allowance, adjustment, dispute, setoff or
counterclaim, as Secured Party may request from time to time.
(f) Financing Statement Filings. Debtor recognizes that financing
statements pertaining to the Collateral have been or may be filed in one or
more of the following jurisdictions: the jurisdiction of Debtor's
organization, or other such place as the Debtor
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may be "located" under the provisions of the Code; where Debtor maintains
any Collateral, or has its records concerning any Collateral, as the case
may be. Without limitation of any other covenant herein, Debtor will
neither cause or permit any change in the location of (i) any Collateral,
(ii) any records concerning any Collateral, or (iii) the jurisdiction of
Debtor's organization, to a jurisdiction other than as represented in
Subsection 3(g), nor will Debtor change its name or the Organizational
Information as represented in Subsection 3(g), unless Debtor shall have
notified Secured Party in writing of such change at least thirty (30) days
prior to the effective date of such change, and shall have first taken all
action required by Secured Party for the purpose of further perfecting or
protecting the security interest in favor of Secured Party in the
Collateral. In any written notice furnished pursuant to this Subsection,
Debtor will expressly state that the notice is required by this Agreement
and contains facts that may require additional filings of financing
statements or other notices for the purpose of continuing perfection of
Secured Party's security interest in the Collateral. Without limiting
Secured Party's rights hereunder, Debtor authorizes Secured Party to file
financing statements and amendments thereto under the provisions of the
Code as amended from time to time.
(g) Marking of Chattel Paper. Debtor will not create any Chattel Paper
without placing a legend on the Chattel Paper acceptable to Secured Party
indicating that Secured Party has a security interest in the Chattel Paper.
6. Rights of Secured Party. Secured Party shall have the rights contained
in this Section 6 at all times during the period of time this Agreement is
effective.
(a) Additional Financing Statements Filings. Debtor hereby authorizes
Secured Party to file, without the signature of Debtor, one or more
financing or continuation statements, and amendments thereto, relating to
the Collateral. Debtor further agrees that a carbon, photographic or other
reproduction of this Security Agreement or any financing statement
describing any Collateral is sufficient as a financing statement and may be
filed in any jurisdiction Secured Party may deem appropriate.
(b) Power of Attorney. Debtor hereby irrevocably appoints Secured Party as
Debtor's attorney-in-fact, such power of attorney being coupled with an
interest, with full authority in the place and stead of Debtor and in the
name of Debtor or otherwise, after the occurrence of an Event of Default,
to take any action and to execute any instrument which Secured Party may
deem necessary or appropriate to accomplish the purposes of this Agreement,
including without limitation: (i) to obtain and adjust insurance required
by Secured Party hereunder; (ii) to demand, collect, xxx for, recover,
compound, receive and give acquittance and receipts for moneys due and to
become due under or in respect of the Collateral; (iii) to receive, endorse
and collect any drafts or other instruments, documents and chattel paper in
connection with clause (i) or (ii) above; and (iv) to file any claims or
take any action or institute any proceedings which Secured Party may deem
necessary or appropriate for the collection and/or preservation of the
Collateral or otherwise to enforce the rights of Secured Party with respect
to the Collateral.
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(c) Performance by Secured Party. If Debtor fails to perform any agreement
or obligation provided herein, Secured Party may itself perform, or cause
performance of, such agreement or obligation, and the expenses of Secured
Party incurred in connection therewith shall be a part of the Indebtedness,
secured by the Collateral and payable by Debtor on demand.
(d) Debtor's Receipt of Proceeds. All amounts and proceeds (including
instruments and writings) received by Debtor in respect of such accounts or
general intangibles shall be received in trust for the benefit of Secured
Party hereunder and, upon request of Secured Party, shall be segregated
from other property of Debtor and shall be forthwith delivered to Secured
Party in the same form as so received (with any necessary endorsement) and
applied to the Indebtedness in such manner as Secured Party deems
appropriate in its sole discretion.
(e) Notification of Account Debtors. Secured Party may at its discretion
from time to time notify any or all obligors under any accounts or general
intangibles (i) of Secured Party's security interest in such accounts or
general intangibles and direct such obligors to make payment of all amounts
due or to become due to Debtor thereunder directly to Secured Party, and
(ii) to verify the accounts or general intangibles with such obligors.
Secured Party shall have the right, at the expense of Debtor, to enforce
collection of any such accounts or general intangibles and to adjust,
settle or compromise the amount or payment thereof, in the same manner and
to the same extent as Debtor.
7. Events of Default. Each of the following constitutes an "Event of
Default" under this Agreement:
(a) Event of Default. The occurrence of an "Event of Default" as defined in
the Loan Agreement of even date herewith between Obligor and Secured Party,
as from time to time amended, modified or restated;
(b) Abandonment. Debtor abandons the Collateral or any portion thereof;
(c) Action by Other Lienholder. The holder of any lien or security interest
on any of the assets of Debtor, including without limitation, the
Collateral (without hereby implying the consent of Secured Party to the
existence or creation of any such lien or security interest on the
Collateral), declares a default thereunder or institutes foreclosure or
other proceedings for the enforcement of its remedies thereunder;
(d) Liquidation, Death and Related Events. If Obligor or any Obligated
Party is an entity, the liquidation, dissolution, merger or consolidation
of any such entity or, if Obligor or any Obligated Party is an individual,
the death or legal incapacity of any such individual; or
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(e) Search Report. Secured Party shall receive at any time following the
execution of this Agreement a search report indicating that Secured Party's
security interest is not prior to all other security interests or other
interests reflected in the report.
8. Remedies and Related Rights. If an Event of Default shall have occurred,
and without limiting any other rights and remedies provided herein, under any of
the other Loan Documents or otherwise available to Secured Party, Secured Party
may exercise one or more of the rights and remedies provided in this Section.
(a) Remedies. Secured Party may from time to time at its discretion,
without limitation and without notice except as expressly provided in any
of the Loan Documents:
(i) exercise in respect of the Collateral all the rights and remedies
of a secured party under the Code (whether or not the Code applies to
the affected Collateral);
(ii) require Debtor to, and Debtor hereby agrees that it will at its
expense and upon request of Secured Party, assemble the Collateral as
directed by Secured Party and make it available to Secured Party at a
place to be designated by Secured Party which is reasonably convenient
to both parties;
(iii) reduce its claim to judgment or foreclose or otherwise enforce,
in whole or in part, the security interest granted hereunder by any
available judicial procedure;
(iv) sell or otherwise dispose of, at its office, on the premises of
Debtor or elsewhere, the Collateral, as a unit or in parcels, by
public or private proceedings, and by way of one or more contracts (it
being agreed that the sale or other disposition of any part of the
Collateral shall not exhaust Secured Party's power of sale, but sales
or other dispositions may be made from time to time until all of the
Collateral has been sold or disposed of or until the Indebtedness has
been paid and performed in full), and at any such sale or other
disposition it shall not be necessary to exhibit any of the
Collateral;
(v) buy the Collateral, or any portion thereof, at any public sale;
(vi) buy the Collateral, or any portion thereof, at any private sale
if the Collateral is of a type customarily sold in a recognized market
or is of a type which is the subject of widely distributed standard
price quotations;
(vii) apply for the appointment of a receiver for the Collateral, and
Debtor hereby consents to any such appointment; and
(viii) at its option, retain the Collateral in satisfaction of the
Indebtedness whenever the circumstances are such that Secured Party is
entitled to do so under the Code or otherwise, to the full extent
permitted by the Code, Secured Party
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shall be permitted to elect whether such retention shall be in full or
partial satisfaction of the Indebtedness.
In the event Secured Party shall elect to sell the Collateral, Secured
Party may sell the Collateral without giving any warranties as and shall be
permitted to specifically disclaim any warranties of title or the like. Further,
if Secured Party sells any of the Collateral on credit, Debtor will be credited
only with payments actually made by the purchaser, received by Secured Party and
applied to the Indebtedness. In the event the purchaser fails to pay for the
Collateral, Secured Party may resell the Collateral and Debtor shall be credited
with the proceeds of the sale. Debtor agrees that in the event Debtor or any
Obligor is entitled to receive any notice under the Code, as it exists in the
state governing any such notice, of the sale or other disposition of any
Collateral, reasonable notice shall be deemed given when such notice is
deposited in a depository receptacle under the care and custody of the United
States Postal Service, postage prepaid, at such party's address set forth on the
first page hereof, ten (10) days prior to the date of any public sale, or after
which a private sale, of any of such Collateral is to be held. Secured Party
shall not be obligated to make any sale of Collateral regardless of notice of
sale having been given. Secured Party may adjourn any public or private sale
from time to time by announcement at the time and place fixed therefor, and such
sale may, without further notice, be made at the time and place to which it was
so adjourned.
(b) Application of Proceeds. If any Event of Default shall have occurred,
Secured Party may at its discretion apply or use any cash held by Secured
Party as Collateral, and any cash proceeds received by Secured Party in
respect of any sale or other disposition of, collection from, or other
realization upon, all or any part of the Collateral as follows in such
order and manner as Secured Party may elect:
(i) to the repayment or reimbursement of the reasonable costs and
expenses (including, without limitation, reasonable attorneys' fees
and expenses) incurred by Secured Party in connection with (A) the
administration of the Loan Documents, (B) the custody, preservation,
use or operation of, or the sale of, collection from, or other
realization upon, the Collateral, and (C) the exercise or enforcement
of any of the rights and remedies of Secured Party hereunder;
(ii) to the payment or other satisfaction of any liens and other
encumbrances upon the Collateral;
(iii) to the satisfaction of the Indebtedness;
(iv) by holding such cash and proceeds as Collateral;
(v) to the payment of any other amounts required by applicable law
(including without limitation, Section 9.615(a)(3) of the Code or any
other applicable statutory provision); and
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(vi) by delivery to Debtor or any other party lawfully entitled to
receive such cash or proceeds whether by direction of a court of
competent jurisdiction or otherwise.
(c) Deficiency. In the event that the proceeds of any sale of, collection
from, or other realization upon, all or any part of the Collateral by
Secured Party are insufficient to pay all amounts to which Secured Party is
legally entitled, Obligor and any party who guaranteed or is otherwise
obligated to pay all or any portion of the Indebtedness shall be liable for
the deficiency, together with interest thereon as provided in the Loan
Documents, to the full extent permitted by the Code.
(d) Non-Judicial Remedies. In granting to Secured Party the power to
enforce its rights hereunder without prior judicial process or judicial
hearing, Debtor expressly waives, renounces and knowingly relinquishes any
legal right which might otherwise require Secured Party to enforce its
rights by judicial process. Debtor recognizes and concedes that
non-judicial remedies are consistent with the usage of trade, are
responsive to commercial necessity and are the result of a bargain at arm's
length. Nothing herein is intended to prevent Secured Party or Debtor from
resorting to judicial process at either party's option.
(e) Other Recourse. Debtor waives any right to require Secured Party to
proceed against any third party, exhaust any Collateral or other security
for the Indebtedness, or to have any third party joined with Debtor in any
suit arising out of the Indebtedness or any of the Loan Documents, or
pursue any other remedy available to Secured Party. Debtor further waives
any and all notice of acceptance of this Agreement and of the creation,
modification, rearrangement, renewal or extension of the Indebtedness.
Debtor further waives any defense arising by reason of any disability or
other defense of any third party or by reason of the cessation from any
cause whatsoever of the liability of any third party. Until all of the
Indebtedness shall have been paid in full, Debtor shall have no right of
subrogation and Debtor waives the right to enforce any remedy which Secured
Party has or may hereafter have against any third party, and waives any
benefit of and any right to participate in any other security whatsoever
now or hereafter held by Secured Party. Debtor authorizes Secured Party,
and without notice or demand and without any reservation of rights against
Debtor and without affecting Debtor's liability hereunder or on the
Indebtedness to (i) take or hold any other property of any type from any
third party as security for the Indebtedness, and exchange, enforce, waive
and release any or all of such other property, (ii) apply such other
property and direct the order or manner of sale thereof as Secured Party
may in its discretion determine, (iii) renew, extend, accelerate, modify,
compromise, settle or release any of the Indebtedness or other security for
the Indebtedness, (iv) waive, enforce or modify any of the provisions of
any of the Loan Documents executed by any third party, and (v) release or
substitute any third party.
9. Indemnity. As provided in the Code, Debtor hereby indemnifies and agrees
to hold harmless Secured Party, and its officers, directors, employees, agents
and representatives (each an "Indemnified Person") from and against any and all
liabilities, obligations, claims,
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losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature (collectively, the "Claims") which may be
imposed on, incurred by, or asserted against, any Indemnified Person arising in
connection with the Loan Documents, the Indebtedness or the Collateral
(including without limitation, the enforcement of the Loan Documents and the
defense of any Indemnified Person's actions and/or inactions in connection with
the Loan Documents), WHETHER OR NOT THE CLAIMS ARE IN ANY WAY OR TO ANY EXTENT
CAUSED BY OR ARISE OUT OF SUCH INDEMNIFIED PARTY'S OWN NEGLIGENCE OR ANY CLAIM
OR THEORY OF STRICT LIABILITY, except to the extent the Claims are proximately
caused by such Indemnified Party's individual gross negligence or willful
misconduct. The indemnification provided for in this Section shall survive the
termination of this Agreement and shall extend and continue to benefit each
individual or entity who is or has at any time been an Indemnified Person
hereunder.
10. Miscellaneous.
(a) Entire Agreement. This Agreement contains the entire agreement of
Secured Party and Debtor with respect to the Collateral. If the parties
hereto are parties to any prior agreement, either written or oral, relating
to the Collateral, the terms of this Agreement shall amend and supersede
the terms of such prior agreements as to transactions on or after the
effective date of this Agreement, but all security agreements, financing
statements, guaranties, other contracts and notices for the benefit of
Secured Party shall continue in full force and effect to secure the
Indebtedness unless Secured Party specifically releases its rights
thereunder by separate release.
(b) Amendment. No modification, consent or amendment of any provision of
this Agreement or any of the other Loan Documents shall be valid or
effective unless the same is authenticated by the party against whom it is
sought to be enforced, except to the extent of amendments specifically
permitted by the Code without authentication by the Debtor or Obligor.
(c) Actions by Secured Party. The lien, security interest and other
security rights of Secured Party hereunder shall not be impaired by (i) any
renewal, extension, increase or modification with respect to the
Indebtedness, (ii) any surrender, compromise, release, renewal, extension,
exchange or substitution which Secured Party may grant with respect to the
Collateral, or (iii) any release or indulgence granted to any endorser,
guarantor or surety of the Indebtedness. The taking of additional security
by Secured Party shall not release or impair the lien, security interest or
other security rights of Secured Party hereunder or affect the obligations
of Debtor hereunder.
(d) Waiver by Secured Party. Secured Party may waive any Event of Default
without waiving any other prior or subsequent Event of Default. Secured
Party may remedy any default without waiving the Event of Default remedied.
Neither the failure by Secured Party to exercise, nor the delay by Secured
Party in exercising, any right or remedy upon any Event of Default shall be
construed as a waiver of such Event of Default or as a waiver of the right
to exercise any such right or remedy at a later date. No single or
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partial exercise by Secured Party of any right or remedy hereunder shall
exhaust the same or shall preclude any other or further exercise thereof,
and every such right or remedy hereunder may be exercised at any time. No
waiver of any provision hereof or consent to any departure by Debtor
therefrom shall be effective unless the same shall be in writing and signed
by Secured Party and then such waiver or consent shall be effective only in
the specific instances, for the purpose for which given and to the extent
therein specified. No notice to or demand on Debtor in any case shall of
itself entitle Debtor to any other or further notice or demand in similar
or other circumstances.
(e) Costs and Expenses. Debtor will upon demand pay to Secured Party the
amount of any and all costs and expenses (including without limitation,
attorneys' fees and expenses), which Secured Party may incur in connection
with (i) the transactions which give rise to the Loan Documents, (ii) the
preparation of this Agreement and the perfection and preservation of the
security interests granted under the Loan Documents, (iii) the
administration of the Loan Documents, (iv) the custody, preservation, use
or operation of, or the sale of, collection from, or other realization
upon, the Collateral, (v) the exercise or enforcement of any of the rights
of Secured Party under the Loan Documents, or (vi) the failure by Debtor to
perform or observe any of the provisions hereof.
(f) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS AND APPLICABLE FEDERAL LAWS,
EXCEPT TO THE EXTENT PERFECTION AND THE EFFECT OF PERFECTION OR
NON-PERFECTION OF THE SECURITY INTEREST GRANTED HEREUNDER, IN RESPECT OF
ANY PARTICULAR COLLATERAL, ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER
THAN THE STATE OF TEXAS.
(g) Venue. This Agreement has been entered into in the county in Texas
where Secured Party's address for notice purposes is located, and it shall
be performable for all purposes in such county. Courts within the State of
Texas shall have jurisdiction over any and all disputes arising under or
pertaining to this Agreement and venue for any such disputes shall be in
the county or judicial district where this Agreement has been executed and
delivered.
(h) Severability. If any provision of this Agreement is held by a court of
competent jurisdiction to be illegal, invalid or unenforceable under
present or future laws, such provision shall be fully severable, shall not
impair or invalidate the remainder of this Agreement and the effect thereof
shall be confined to the provision held to be illegal, invalid or
unenforceable.
(i) No Obligation. Nothing contained herein shall be construed as an
obligation on the part of Secured Party to extend or continue to extend
credit to Obligor.
(j) Notices. All notices, requests, demands or other communications
required or permitted to be given pursuant to this Agreement shall be in
writing and given by
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(i) personal delivery, (ii) expedited delivery service with proof of
delivery, or (iii) United States mail, postage prepaid, registered or
certified mail, return receipt requested, sent to the intended addressee at
the address set forth on the first page hereof or to such different address
as the addressee shall have designated by written notice sent pursuant to
the terms hereof and shall be deemed to have been received either, in the
case of personal delivery, at the time of personal delivery, in the case of
expedited delivery service, as of the date of first attempted delivery at
the address and in the manner provided herein, or in the case of mail, upon
deposit in a depository receptacle under the care and custody of the United
States Postal Service. Either party shall have the right to change its
address for notice hereunder to any other location within the continental
United States by notice to the other party of such new address at least
thirty (30) days prior to the effective date of such new address.
(k) Binding Effect and Assignment. This Agreement (i) creates a continuing
security interest in the Collateral, (ii) shall be binding on Debtor and
the heirs, executors, administrators, personal representatives, successors
and assigns of Debtor, and (iii) shall inure to the benefit of Secured
Party and its successors and assigns. Without limiting the generality of
the foregoing, Secured Party may pledge, assign or otherwise transfer the
Indebtedness and its rights under this Agreement and any of the other Loan
Documents to any other party. Debtor's rights and obligations hereunder may
not be assigned or otherwise transferred without the prior written consent
of Secured Party.
(l) Cumulative Rights. All rights and remedies of Secured Party hereunder
are cumulative of each other and of every other right or remedy which
Secured Party may otherwise have at law or in equity or under any of the
other Loan Documents, and the exercise of one or more of such rights or
remedies shall not prejudice or impair the concurrent or subsequent
exercise of any other rights or remedies. Further, except as specifically
noted as a waiver herein, no provision of this Agreement is intended by the
parties to this Agreement to waive any rights, benefits or protection
afforded to Secured Party under the Code.
(m) Gender and Number. Within this Agreement, words of any gender shall be
held and construed to include the other gender, and words in the singular
number shall be held and construed to include the plural and words in the
plural number shall be held and construed to include the singular, unless
in each instance the context requires otherwise.
(n) Descriptive Headings. The headings in this Agreement are for
convenience only and shall in no way enlarge, limit or define the scope or
meaning of the various and several provisions hereof.
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EXECUTED as of the date first written above.
DEBTOR: SECURED PARTY:
U.S. REMODELERS, INC. THE FROST NATIONAL BANK,
a national banking association
By:
------------------------------ By:
Printed Name: ----------------------------
---------------- Printed Name: Xxxxxxx Xxxxxx
Title: Title: Vice President
-----------------------
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