EXHIBIT 10.3
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SECURITY AGREEMENT
(Stock)
THIS SECURITY AGREEMENT ("Agreement") dated as of June 7, 2006, is made
between GMX RESOURCES INC., an Oklahoma corporation ("Borrower") and CAPITAL
ONE, NATIONAL ASSOCIATION ("Agent"), who agree as follows:
RECITALS
A. The Borrower is or will be indebted unto the Agent and the
Banks for loans made or to be made pursuant to the terms of an amended and
restated loan agreement (as amended, supplemented or restated from time to time,
the "Loan Agreement") dated as of June 7, 2006, by and among the Borrower, the
Agent and the Banks.
B. In order to induce the Agent and the Banks to enter into the
Loan Agreement and the Secured Hedge Providers to enter into the Secured Hedge
Agreements (as such terms are defined in the Loan Agreement), and to secure the
full and punctual payment and performance of the Secured Liabilities as defined
in the Loan Agreement, the Borrower has agreed to execute and deliver this
Agreement and to pledge, deliver and grant a continuing security interest in and
to the Collateral (as hereafter defined).
AGREEMENT
NOW, THEREFORE, in consideration of the premises, the Borrower and the
Agent agree as follows:
Section 1. Definitions. (A) As used in this Agreement, the terms
"Agent", "Agreement", "Borrower", and "Loan Agreement" shall have the meanings
indicated above.
(B) As used in this Agreement, the terms "Banks", "Event of
Default", "Person", "Secured Hedge Agreements", "Secured Hedge Obligations",
"Secured Hedge Provider", "Secured Liabilities" and "Secured Parties" have the
respective meanings defined in the Loan Agreement.
(C) As used in this Agreement, the terms "Collateral," "Diamond",
"Endeavor", and "Subsidiary" shall have the meanings indicated in Section 2
below.
Section 2. Security Interest. (A) To secure the full and punctual
payment and performance of all present and future Secured Liabilities to the
Secured Parties or any successor or transferee thereof, including without
limitation all promissory notes heretofore or hereafter executed by the Borrower
pursuant to the Loan Agreement, in principal, interest, deferral and delinquency
charges, prepayment premiums, costs and attorney's fees, as therein stipulated,
and all present and future Secured Hedge Obligations, the Borrower hereby
pledges, pawns, transfers and grants to the Agent, for its benefit and the
ratable benefit of the Secured Parties, a continuing security interest in and to
all of the following property of the Borrower, whether now owned or existing or
hereafter acquired or arising (collectively the "Collateral"):
A. 1,000 shares of the common stock of Endeavor Pipeline Inc.,
an Oklahoma corporation ("Endeavor") represented by Certificate No.
1, dated April 9, 1998, registered in the Borrower's name, together
with any additional shares of Endeavor issued hereafter as stock
dividends, stock splits or otherwise, or shares received as a result
of any merger or consolidation of Endeavor, all rights of any nature
whatsoever which may be issued or granted by Endeavor to the
Borrower, all right, title and interest of the Borrower as a
shareholder of Endeavor including without limitation the right to
vote, all certificates and instruments representing or evidencing
all such shares and rights, all cash, liquidation and other
dividends now or hereafter declared thereon, all stock redemption
payments and all other monies due or to become due thereunder, all
stock warrants and other rights to subscribe to securities now or
hereafter incident thereto or declared or granted in connection
therewith, and all distributions (cash or property) made or to be
made in connection therewith or incident thereto, and together with
all proceeds of all or any of the foregoing, in whatever form.
B. 10,000 shares of the common stock of Diamond Blue Drilling
Co., an Oklahoma corporation ("Diamond") represented by Certificate
No. 1, dated December 7, 2005, registered in the Borrower's name,
together with any additional shares of Diamond issued hereafter as
stock dividends, stock splits or otherwise, or shares received as a
result of any merger or consolidation of Diamond, all rights of any
nature whatsoever which may be issued or granted by Diamond to the
Borrower, all right, title and interest of the Borrower as a
shareholder of Diamond including without limitation the right to
vote, all certificates and instruments representing or evidencing
all such shares and rights, all cash, liquidation and other
dividends now or hereafter declared thereon, all stock redemption
payments and all other monies due or to become due thereunder, all
stock warrants and other rights to subscribe to securities now or
hereafter incident thereto or declared or granted in connection
therewith, and all distributions (cash or property) made or to be
made in connection therewith or incident thereto, and together with
all proceeds of all or any of the foregoing, in whatever form.
Endeavor and Diamond are hereinafter each sometimes referred to collectively as
a "Subsidiary".
(C) The security interests are granted as security only and shall
not subject the Agent to, or transfer or in any way affect or modify, any
obligation or liability of the Borrower with respect to any of the Collateral or
any transaction in connection therewith.
Section 3. Delivery of Collateral. The Agent hereby accepts the
delivery of the Collateral on behalf of itself and the other Secured Parties and
on behalf of any future transferee of the Secured Liabilities. The Borrower will
execute and deliver to the Agent all assignments, endorsements, powers and other
documents reasonably requested at any time and from time to time by the Agent
with respect to the Collateral and the rights and powers granted
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to the Agent hereunder, and will deliver to the Agent any stock certificates
representing stock dividends on, or stock splits of, any of the Collateral.
Section 4. Representations. (A) The Borrower has not performed
any acts or signed any agreements which might prevent the Agent from enforcing
any of the terms of this Agreement or which would limit the Agent in any such
enforcement. No security agreement or similar or equivalent document or
instrument covering all or any part of the Collateral has been executed by the
Borrower and remains in effect. No Collateral is in the possession of any Person
(other than the Borrower) asserting any claim thereto or security interest
therein, except that the Agent or its designee may have possession of Collateral
as contemplated hereby.
(B) The certificated securities evidencing the Collateral are each
owned legally, directly and beneficially and of record by the Borrower, and each
is not subject to any interest, option or right of any Person. The Collateral
constitutes all of the interest that the Borrower owns in each Subsidiary, which
as of the date of this Agreement is one hundred (100%) percent of the stock
issued by each Subsidiary. The Borrower has delivered a complete and accurate
copy of each Subsidiary's articles of incorporation and bylaws to the Agent.
Section 5. Covenants. (A) The Borrower agrees not to sell, offer
to sell, transfer or otherwise dispose of any of the Collateral or any interest
therein, and not to create, incur or permit to exist any pledge, security
interest, lien, charge, encumbrance, restriction on transfer, right to purchase,
option, right of first refusal or other impediment to title whatsoever with
respect to any of the Collateral, other than this Agreement.
(B) The Borrower will not amend or agree to amend any Subsidiary's
articles of incorporation or bylaws, or otherwise enter into any further
agreement pertaining to any of the Collateral. The Borrower will not consent to
or permit the issuance to any Person of any additional shares in any Subsidiary.
Section 6. Voting Rights. (A) So long as no Event of Default as
defined in the Loan Agreement shall have occurred, the Borrower shall have the
right, from time to time, to exercise voting and other consensual rights to give
approvals, ratifications and waivers pertaining to the Collateral, and the Agent
upon receiving a written request from the Borrower accompanied by a certificate
stating that no Event of Default has occurred will deliver to the Borrower (or
as specified in such request) such proxies, approvals, ratifications, waivers
and other instruments pertaining to the Collateral as may be specified in such
request and be in form and substance satisfactory to the Agent.
(B) Upon the occurrence of an Event of Default, the Agent shall
have the right, at Agent's option, to exercise the voting and other consensual
rights to give approvals, ratifications and waivers and to take any other action
with respect to all the Collateral with the same force and effect as if the
Agent were the absolute and sole owner thereof, and the Borrower's right to
exercise such voting and other consensual rights shall, at Agent's option, cease
and become vested in the Agent.
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Section 7. Remedies upon Default. (A) Upon the occurrence of an
Event of Default as defined in the Loan Agreement the Agent may exercise all
rights of a secured party under the Louisiana Commercial Laws -- Secured
Transactions and other applicable law (including the Uniform Commercial Code as
in effect in another applicable jurisdiction) and, in addition, the Agent may,
without being required to give any notice, except as herein provided or as may
be required by mandatory provisions of law, (i) transfer the whole or any part
of the Collateral into the name of the Agent or its nominee, (ii) sell the
Collateral or any part thereof at a broker's board or on a securities exchange,
or (iii) sell the Collateral or any part thereof at public or private sale, for
cash, upon credit or for future delivery, and at such price or prices as the
Agent may deem satisfactory. The Agent may be the purchaser of any or all of the
Collateral so sold at any public sale (or, 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, at any private sale). The Borrower
will execute and deliver such documents and take such other action as the Agent
deems necessary or advisable in order that any such sale may be made in
compliance with law. Upon any such sale the Agent shall have the right to
deliver, assign and transfer to the purchaser thereof the Collateral so sold.
Each purchaser at any such sale shall hold the Collateral so sold to it
absolutely and free from any claim or right of whatsoever kind, including any
equity or right of redemption of the Borrower which may be waived, and the
Borrower, to the extent permitted by law, hereby specifically waives all rights
of redemption, stay or appraisal which it has or may have under any law now
existing or hereafter adopted. The Borrower agrees that ten (10) days prior
written notice of the time and place of any sale or other intended disposition
of any of the Collateral constitutes "reasonable notification" within the
meaning of Sections 9-611 and 9-612 of the UCC except that shorter or no notice
shall be reasonable as to any Collateral which is perishable or threatens to
decline speedily in value or is of a type customarily sold on a recognized
market. The notice (if any) of such sale shall (l) in case of a public sale,
state the time and place fixed for such sale, and (2) in the case of a private
sale, state the day after which such sale may be consummated. Any such public
sale shall be held at such time or times within ordinary business hours and at
such place or places as the Agent may fix in the notice of such sale. At any
such sale the Collateral may be sold in one lot as an entirety or in separate
parcels, as the Agent may determine. The Agent shall not be obligated to make
any such sale pursuant to any such notice. The Agent may, without notice or
publication, adjourn any public or private sale or cause the same to be
adjourned from time to time by announcement at the time and place fixed for the
sale, and such sale may be made at any time or place to which the same may be so
adjourned. In case of any sale of all or any part of the Collateral on credit or
for future delivery, the Collateral so sold may be retained by the Agent until
the selling price is paid by the purchaser thereof, but the Agent shall not
incur any liability in case of the failure of such purchaser to take up and pay
for the Collateral so sold and, in case of any such failure, such Collateral may
again be sold upon like notice.
(B) The Agent, instead of exercising the power of sale herein
conferred upon it, may proceed by a suit or suits at law or in equity to
foreclose the security interests and sell the Collateral, or any portion
thereof, under a judgment or decree of a court or courts of competent
jurisdiction. For the purposes of Louisiana executory process procedures, the
Borrower does hereby acknowledge the Secured Liabilities and confess judgment in
favor of the Agent and the
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other Secured Parties for the full amount of the Secured Liabilities. The
Borrower does by these presents consent, agree and stipulate that upon the
occurrence of an Event of Default it shall be lawful for the Agent, and the
Borrower does hereby authorize the Agent, to cause all and singular the
Collateral to be seized and sold under executory or ordinary process, at the
Agent's sole option, without appraisement, appraisement being hereby expressly
waived, in one lot as an entirety or in separate parcels as the Agent may
determine, to the highest bidder, and otherwise exercise the rights, powers and
remedies afforded herein and under applicable Louisiana law. Any and all
declarations of fact made by authentic act before a Notary Public in the
presence of two witnesses by a person declaring that such facts lie within his
knowledge shall constitute authentic evidence of such facts for the purpose of
executory process. The Borrower hereby waives in favor of the Agent: (a) the
benefit of appraisement as provided in Louisiana Code of Civil Procedure
Articles 2332, 2336, 2723 and 2724, and all other laws conferring the same; (b)
the demand and three days delay accorded by Louisiana Code of Civil Procedure
Article 2721; (c) the notice of seizure required by Louisiana Code of Civil
Procedure Articles 2293 and 2721; (d) the three days delay provided by Louisiana
Code of Civil Procedure Articles 2331 and 2722; and (e) the benefit of the other
provisions of Louisiana Code of Civil Procedure Articles 2331, 2722 and 2723,
not specifically mentioned above.
(C) The Borrower recognizes that the Agent may be unable to effect
a public sale of all or part of the Collateral by reason of certain prohibitions
contained in the Securities Act of 1933, as amended, and applicable state
securities laws but may be compelled to resort to one or more private sales to a
restricted group of purchasers who will be obligated to agree, among other
things, to acquire all or a part of the Collateral for their own account, for
investment, and not with a view to the distribution or resale thereof. If the
Agent deems it advisable to do so for the foregoing or for other reasons, the
Agent is authorized to limit the prospective bidders on or purchasers of any of
the Collateral to such a restricted group of purchasers and may cause to be
placed on certificates for any or all of the Collateral a legend to the effect
that such security has not been registered under the Securities Act of 1933, as
amended, and may not be disposed of in violation of the provision of said act,
and to impose such other limitations or conditions in connection with any such
sale as the Agent deems necessary or advisable in order to comply with said act
or any other securities or other laws. The Borrower acknowledges and agrees that
any private sale so made may be at prices and on other terms less favorable to
the seller than if such Collateral were sold at public sale and that the Agent
has no obligation to delay the sale of such Collateral for the period of time
necessary to permit the registration of such Collateral for public sale under
any securities laws. The Borrower agrees that a private sale or sales made under
the foregoing circumstances shall be deemed to have been made in a commercially
reasonable manner. If any consent, approval, or authorization of any federal,
state, municipal or other governmental department, agency or authority should be
necessary to effectuate any sale or other disposition of the Collateral, or any
partial sale or other disposition of the Collateral, the Borrower will execute
all applications and other instruments as may be required in connection with
securing any such consent, approval or authorization and will otherwise use its
best efforts to secure same. In addition, if the Collateral is disposed of
pursuant to Rule 144, the Borrower agrees to complete and execute a Form 144, or
comparable successor form, at the Agent's request; and the Borrower agrees to
provide any material adverse
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information in regard to the current and prospective operations of any
corporation whose stock constitutes all or a portion of the Collateral of which
the Borrower has knowledge and which has not been publicly disclosed, and the
Borrower hereby acknowledges that the Borrower's failure to provide such
information may result in criminal and/or civil liability.
Section 8. Limitation on Duty of Agent. Beyond the exercise of
reasonable care in the custody thereof, the Agent shall have no duty as to any
Collateral in its possession or control or in the possession or control of any
agent or bailee or any income thereon. The Agent shall be deemed to have
exercised reasonable care in the custody of the Collateral in its possession if
the Collateral is accorded treatment substantially equal to that which it
accords its own property, and shall not be liable or responsible for any loss or
damage to any of the Collateral, or for any diminution in the value thereof, by
reason of the act or omission of any broker or other agent or bailee selected by
the Agent in good faith. The Agent shall be deemed to have exercised reasonable
care with respect to any of the Collateral in its possession if the Agent takes
such action for that purpose as the Borrower shall reasonably request in
writing; but no failure to comply with any such request shall, of itself, be
deemed a failure to exercise reasonable care.
Section 9. Appointment of Agent. At any time or times, in order
to comply with any legal requirement in any jurisdiction, the Agent may appoint
a bank or trust company or one or more other Persons with such power and
authority as may be necessary for the effectual operation of the provisions
hereof and may be specified in the instrument of appointment.
Section 10. Expenses. In the event that the Borrower fails to
comply with any provisions of the Loan Agreement or this Agreement, such that
the value of any Collateral or the validity, perfection, rank or value of any
security interest hereunder is thereby diminished or potentially diminished or
put at risk, the Agent may, but shall not be required to, effect such compliance
on behalf of the Borrower, and the Borrower shall reimburse the Agent for the
costs thereof on demand. All insurance expenses and all expenses of protecting,
storing, appraising, preparing for sale, handling, maintaining and shipping the
Collateral, any and all excise, property, sales, and use taxes imposed by any
federal, state or local authority on any of the Collateral, all expenses in
respect of periodic appraisals and inspections of the Collateral to the extent
the same may be requested from time to time, and all expenses in respect of the
sale or other disposition thereof shall be borne and paid by the Borrower; and
if the Borrower fails to promptly pay any portion thereof when due, the Agent
may, at its option, but shall not be required to, pay the same and charge the
Borrower's account therefor, and the Borrower agrees to reimburse the Agent
therefor on demand. All sums so paid or incurred by the Agent for any of the
foregoing and any and all other sums for which the Borrower may become liable
hereunder and all costs and expenses (including reasonable attorneys' fees,
legal expenses and court costs) incurred by the Agent in enforcing or protecting
any of the rights or remedies under this Agreement, together with interest
thereon until paid at the Default Rate, shall be additional Secured Liabilities
hereunder and the Borrower agrees to pay all of the foregoing sums promptly on
demand.
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Section 11. Termination. Upon the payment in full of the Secured
Liabilities and the termination of the Loan Agreement and the Secured Hedge
Agreements, this Agreement shall terminate. Upon request of the Borrower, the
Agent shall deliver the remaining Collateral (if any) to the Borrower.
Section 12. Notices. Any notice or demand which, by provision of
this Agreement, is required or permitted to be given or served to the Borrower
and the Agent shall be deemed to have been sufficiently given and served for all
purposes if made in accordance with the Loan Agreement.
Section 13. Amendment. Neither this Agreement nor any provisions
hereof may be changed, waived, discharged or terminated orally or in any manner
other than by an instrument in writing signed by the party against whom
enforcement of the change, waiver, discharge or termination is sought.
Section 14. Waivers. No course of dealing on the part of the
Agent, its officers, employees, consultants or agents, nor any failure or delay
by the Agent with respect to exercising any of its rights, powers or privileges
under this Agreement shall operate as a waiver thereof.
Section 15. Cumulative Rights. The rights and remedies of the
Agent under this Agreement shall be cumulative and the exercise or partial
exercise of any such right or remedy shall not preclude the exercise of any
other right or remedy.
Section 16. Titles of Sections. All titles or headings to sections
of this Agreement are only for the convenience of the parties and shall not be
construed to have any effect or meaning with respect to the other content of
such sections, such other content being controlling as to the agreement between
the parties hereto.
SECTION 17. GOVERNING LAW. THIS AGREEMENT IS A CONTRACT MADE UNDER
AND SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE UNITED
STATES OF AMERICA AND THE STATE OF TEXAS.
Section 18. Successors and Assigns. All covenants and agreements
contained by or on behalf of the Borrower in this Agreement shall bind
Borrower's successors and assigns and shall inure to the benefit of the Agent
and the other Secured Parties and their successors and assigns. This Agreement
is for the benefit of the Agent and the other Secured Parties and for such other
Person or Persons as may from time to time become or be the holders of any of
the Secured Liabilities, and this Agreement shall be transferable with the same
force and effect and to the same extent as the Secured Liabilities may be
transferable, it being understood that, upon the transfer or assignment by any
Secured Party of any of the Secured Liabilities, the legal holder of such
Secured Liabilities shall have all of the rights granted to a Secured Party
under this Agreement. Borrower specifically agrees that upon any transfer of all
or any portion of the
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Secured Liabilities, the Collateral shall secure any and all of the Secured
Liabilities in favor of such a transferee, that such transfer shall not affect
the priority and ranking thereof, and that the Collateral shall secure with
retroactive rank the then existing Secured Liabilities of the Borrower to the
transferee and any and all Secured Liabilities thereafter arising. Upon the
appointment of a successor Agent under the Loan Agreement, the Agent may
transfer and deliver the Collateral to such successor Agent and after any such
transfer has taken place, the Agent shall be fully discharged from any and all
future liability and responsibility to the Borrower with respect to the
Collateral and the transferee thereafter shall be vested with all the powers,
rights and duties with respect to the Collateral.
Section 19. Counterparts. This Agreement may be executed in two or
more counterparts, and it shall not be necessary that the signatures of all
parties hereto be contained on any one counterpart hereof; each counterpart
shall be deemed an original, but all of which when taken together shall
constitute one and the same instrument.
Section 20. Loan Agreement. The provisions of Section 3.4 of the
Loan Agreement pertaining to "Shared Collateral" (as defined therein) shall
apply to this Agreement and the Collateral hereunder. Without limiting the
generality of the foregoing, the Agent shall be required to act only at the
direction of the Required Banks (as defined in the Loan Agreement) or such other
vote of the Banks as required by the Loan Agreement, and not at the direction of
the Secured Hedge Providers.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
BORROWER: GMX RESOURCES INC.,
an Oklahoma corporation
BY: /s/ Xxx X. Xxxxxxxxx, Xx.
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Name: Xxx X. Xxxxxxxxx, Xx.
Title: Executive Vice President & CFO
AGENT: CAPITAL ONE NATIONAL
ASSOCIATION, as Agent
BY: /s/ Xxxxx Xxxxxxxx
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Name: Xxxxx Xxxxxxxx
Title: Vice President
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