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EXHIBIT 10.11
PLEDGE AND SECURITY AGREEMENT
THIS PLEDGE AND SECURITY AGREEMENT (this "Security
Agreement"), dated the 25th day of October, 1996, made and entered into by NDE
ENVIRONMENTAL CORPORATION, a Delaware corporation ("Pledgor"), in favor of BANK
ONE, TEXAS, N.A., a national banking association (the "Bank").
W I T N E S S E T H
WHEREAS, Pledgor, Tanknology/NDE Corporation, a Delaware
corporation, USTMAN Industries, Inc., a Delaware corporation, ProEco, Inc., a
Delaware corporation, and Tanknology Canada (1988) Inc., a Canadian federal
corporation (individually, an "NDE Party", and collectively, the "NDE Parties")
and the Bank, have entered into a Loan Agreement dated as of even date herewith
(hereinafter, as the same may from time to time be amended, supplemented,
extended or otherwise modified referred to as the "Loan Agreement"), pursuant
to which the Bank has agreed to make Loans to the NDE Parties, and further,
that pursuant to the Loan Agreement, the NDE Parties have delivered and will
execute and deliver to the Bank, among other documents, Notes and other Loan
Documents (as defined in the Loan Agreement); and
WHEREAS, the obligation of the Bank to make Loans under the
Loan Agreement is conditioned on, among other things, the execution and
delivery of this Security Agreement; and
WHEREAS, the Pledgor has duly authorized the execution,
delivery, and performance of this Security Agreement;
NOW, THEREFORE, in consideration of the Bank's agreement to
make Loans on the terms and conditions of the Loan Agreement, Pledgor hereby
agrees with the Bank as follows:
ARTICLE I.
DEFINITIONS
As used in this Security Agreement, the following terms shall
have the meanings indicated:
Collateral is defined in Article II.
Event of Default is defined in Article XI.
NDE Stock Companies is defined in Article II.
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Secured Obligations is defined in Article III.
Stock is defined in Article II.
Unless otherwise indicated, capitalized terms used and not
defined herein shall have the respective meanings given to them in the Loan
Agreement. Whenever the context requires, reference herein made to the single
number shall be understood to include the plural and likewise the plural shall
be understood to include the singular. Words denoting sex shall be construed
to include the masculine, feminine, and neuter, when such construction is
appropriate, and specific enumeration shall not exclude the general, but shall
be construed as cumulative.
ARTICLE II.
GRANT OF SECURITY INTEREST
To secure the full and punctual payment of the Secured
Obligations, as and when the same become due and payable in accordance with the
tenor and effect thereof, and the performance of all other obligations of the
NDE Parties under the Loan Documents, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged and
confessed by Pledgor, and upon and subject to the terms, provisions and
conditions hereinafter set forth, Pledgor hereby assigns, pledges, transfers
and grants unto the Bank, for the benefit of the Bank, a continuing security
interest in and to the following, whether now or after existing or acquired
(collectively, the "Collateral"):
2.01 Stock Collateral.
(a) All of the issued and outstanding shares of the
common capital stock of: Tanknology/NDE Corporation, being 1,000
shares of common stock, par value $0.01 per share, evidenced by
Certificate No. 001; USTMAN Industries, Inc., being 1,000 shares of
common stock, par value $0.01 per share, evidenced by Certificate No.
1; Tanknology Canada (1988) Inc., being 10,000 shares of common stock,
no par value, evidenced by Certificate No. 1; ProEco, Inc., being
8,850,000 shares of common stock, par value $.01 per share, evidenced
by Certificate No. 26; (collectively, the "Stock"; Tanknology/NDE
Corporation, USTMAN Industries, Inc., Tanknology Canada (1988) Inc.
and ProEco, Inc., being known collectively as the "NDE Stock
Companies"), together with any and all additional shares of stock,
bonds, notes, obligations and other evidences of indebtedness, and
other securities and cash, if any, which may be from time to time
hereafter by the terms of this Security Agreement subjected to the
security interest hereof or required so to be (collectively, the
"Stock Collateral");
(b) All substitutes and replacements for, and all
accessions and other additions to, and all proceeds of, the
above-described Stock Collateral, including,
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without limitation, all income and benefits therefrom, such as
dividends payable or distributable in cash, property or stock;
redemption proceeds and subscription rights; and shares, rights,
options, interests and/or other proceeds of any kind realized from any
dividend, reclassification, subdivision or combination of shares or in
rights, warrants, options or other securities issued with respect
thereto; and
(c) Any and all present and future accounts, general
intangibles, chattel paper, documents, instruments, cash and non-cash
proceeds, and all other rights and interests arising from or by virtue
of or with respect to the above-described Stock Collateral and any
other properties, including, but not limited to, all payments and
distributions (either in money or property) with respect to any of the
foregoing.
Except with respect to Stock made subject to Permitted Liens
(as described in the Loan Agreement), certificates representing the Stock,
accompanied by properly completed stock powers with respect to all of the
Stock, without representation or warranty except as set forth herein, are being
concurrently herewith deposited by Pledgor with the Bank. All other Stock
Collateral shall be immediately delivered to the Bank as and when it is
received by Pledgor, and Pledgor hereby authorizes the Bank to demand and
receive for, in the name and on behalf of Pledgor, all such Collateral directly
from Pledgor or any other party issuing or delivering the same.
2.02 Other Personal Property.
(a) All inventory in all of its forms of the Pledgor,
wherever located, and all accessions thereto, products thereof and
documents therefor;
(b) All accounts, contracts, contract rights, chattel
paper, documents, instruments, and general intangibles of the Pledgor,
whether or not arising out of or in connection with the sale or lease
of goods or the rendering of services, and all rights of the Pledgor
now or hereafter existing in and to all security agreements,
guaranties, leases, letters of credit (including confirmations and
advices of letters of credit) and other contracts securing or
otherwise relating to any such accounts, contracts, contract rights,
chattel paper, documents, instruments, and general intangibles, and
any renewals or extensions of the foregoing;
(c) All General Intangibles of the Pledgor, including
without limitation any patents, trademarks, goodwill, any licenses in
connection therewith or rights thereunder, and any rights under
license agreements;
(d) All proprietary software of the Pledgor, any licenses
in connection therewith and any rights thereunder;
(e) All vehicles, machinery, and goods of Pledgor
wherever located, in which Pledgor has an ownership, leasehold or
other interest, including all accessions thereto;
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(f) All furniture and equipment of the Pledgor, wherever
located;
(g) All books, records, writings, data bases,
information, computer hardware and software (and all documentation
therefor or relating thereto and all licenses relating to or covering
such computer hardware, software and/or documentation), trademarks,
service marks, business names, designs, logos, indicia, and/or other
source and/or business identifiers (and the goodwill of the business
relating thereto) and all registrations which have heretofore been or
may hereafter be issued thereon throughout the world, and other
property applicable to, relating to, used or useful in connection
with, evidencing, embodying, incorporating or referring to, any of the
foregoing in this Article II; and
(h) All products, offspring, rents, issues, profits,
returns, income and proceeds of and from any and all of the foregoing
Collateral (including proceeds which constitute property of the types
described in this Section 2.02, and, to the extent not otherwise
included, all payments under insurance (whether or not the Bank is the
loss payee thereof), or any indemnity, warranty or guaranty, payable
by reason of loss or damage to or otherwise with respect to any of the
foregoing Collateral).
2.03 Bank's Rights in Collateral; Continuing Security
Interest. The Bank is hereby authorized to receive any and all of the
Collateral as and for security for the payment of the Secured Obligations, and
to hold and apply the same in payment of the Secured Obligations. This
Security Agreement shall: (a) remain in full force and effect until payment in
full of all Obligations under the Loan Documents; (b) be binding upon Pledgor,
its successors, transferees and assigns; and (c) inure, together with the
rights and remedies of the Bank hereunder, to the benefit of the Bank.
ARTICLE III.
SECURED OBLIGATIONS
This Security Agreement secures the payment of all obligations
and liabilities of Pledgor to the Bank now or hereafter existing under or in
connection with the Loan Agreement, the Notes and other Loan Documents, whether
in respect of principal, interest, fees, expenses or otherwise, and all
obligations and liabilities of the Pledgor to the Bank now or hereafter
existing under or in connection with this Security Agreement, together with all
renewals, extensions, rearrangements, modifications, refinancings or
replacements of any of the above, (collectively, the "Secured Obligations").
ARTICLE IV.
CUSTODY OF STOCK COLLATERAL
So long as the Secured Obligations, or any portion thereof,
shall remain outstanding and unpaid, the Stock Collateral shall be held by and
in custody of the Bank, and Pledgor shall not
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have the right to procure the release of any of the Stock Collateral from the
security interest hereby created except upon and in compliance with the terms
and conditions herein set forth. To induce the Bank to deliver the Collateral
to the Subordinated Lender (as defined in that certain Subordinated Security
Agreement made by Pledgor in favor of Banc One Capital Partners, L.P., an Ohio
limited partnership, dated as of even date herewith (the "Subordinated Security
Agreement")) when demanded by Subordinate Lender pursuant to the Subordinated
Security Agreement and when Pledgor would otherwise be entitled to demand such
release hereunder, Pledgor expressly waives, and releases the Bank from, and
releases and indemnifies the Bank from and against, any claim, action or
damages arising from or out of any such delivery to Subordinated Lender.
ARTICLE V.
DELIVERY OF STOCK; REGISTRATION AND RIGHT TO VOTE
5.01 All stock certificates and other instruments in
registered form which may constitute at any time or from time to time a part of
the Collateral shall be endorsed in blank, without representation or warranty,
except as set forth herein, for transfer or be accompanied by proper
instruments of assignment and transfer in blank upon delivery to the Bank. All
instruments not registered as to principal which may constitute at any time or
from time to time a part of the Collateral shall be endorsed in blank. Except
as otherwise herein provided, until the happening of an Event of Default
specified in Article XI hereof and its continuation beyond the period of grace,
if any, applicable thereto, all certificates for shares of stock included in
the Collateral shall remain registered in the name of Pledgor.
5.02 Until the occurrence of an Event of Default, Pledgor
shall have the exclusive right to vote any and all shares of stock constituting
a part of the Collateral, at any and all meetings of the shareholders of the
NDE Stock Companies, for any and all purposes not inconsistent with the
covenants of Pledgor contained in this Security Agreement, the Loan Agreement
and the other Loan Documents. Following the occurrence of an Event of Default,
the Bank shall have the right, at its sole discretion and without liability
therefor, to cause the Collateral to be registered in its name or in the name
of any other party, and to exercise all voting privileges and other rights with
respect thereto.
ARTICLE VI.
COVENANTS OF PLEDGOR
Pledgor covenants and agrees that (i) until the Secured
Obligations shall have been either fully paid or shall have been satisfied and
discharged by action under this Security Agreement, whichever shall first
occur, or (ii) unless the prior written consent of the holder of the Notes
shall have been first obtained, Pledgor will not, except as otherwise provided
in the Loan Documents:
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(a) sell, assign, transfer or further encumber any of the
Collateral or any interest therein;
(b) dissolve, liquidate, or consolidate with or merge
into any other corporation, or merge into it; or sell, lease, transfer
or otherwise dispose of any of its properties and assets, whether by a
single or successive transactions; or to make any amendment to its
Articles of Incorporation or By-laws;
(c) make any loan or advances of any kind whatsoever to
any NDE Party, to any subsidiary or affiliate of Pledgor, or to any
other party;
(d) declare or pay any dividends or other distributions,
either in cash or property, on any class of its stock, directly or
indirectly, issue any additional shares of its capital stock or other
securities or options or rights to purchase the same, or purchase,
redeem or retire any of its capital stock or make any other
distribution with respect to its capital stock;
(e) mortgage, pledge or subject to any lien or other
encumbrance, any of its assets, tangible or intangible, or sell or
transfer any of its tangible assets or cancel any debts or claims,
except as permitted by the Loan Documents;
(f) dispose or otherwise divest itself of the ownership,
possession, custody or control of any books and records of any NDE
Party of any nature which, in accordance with prudent and accepted
business practice, are retained for a period of time after their use,
creation or receipt;
(g) make any investments, loans or commitments, or incur
any expenses, except as permitted by the Loan Documents; and
(h) take any action that would result in an Event of
Default hereunder or under the Loan Agreement, or a default under the
other Loan Documents.
ARTICLE VII.
PAYMENT OF SECURED OBLIGATIONS
If the NDE Parties shall pay to the Bank in full all of the
Secured Obligations and sums payable by the NDE Parties, then these presents
and the security interest hereby granted shall cease, terminate and become
void; and immediately thereafter the Bank shall deliver to Pledgor the
Collateral and, on demand of Pledgor, shall also execute, acknowledge, and
deliver to Pledgor at Pledgor's expense such instruments of release and/or
transfer in respect of the Collateral; otherwise, this Security Agreement shall
remain in full force.
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ARTICLE VIII.
REPRESENTATIONS AND WARRANTIES
Pledgor represents and warrants to the Bank that:
(a) Pledgor (a) is a duly organized and validly existing
corporation in good standing under the laws of the State of Delaware,
and (b) has all requisite power and authority to own its properties
and conduct its business as presently conducted and to execute and
deliver, and to perform its obligations under, this Security
Agreement. All of the outstanding stock of the NDE Stock Companies is
owned beneficially and of record by Pledgor and constitutes the Stock.
(b) There is no action, suit, proceeding, or
investigation at law or in equity by or before any court, governmental
body, agency, commission or other tribunal now pending or, to the best
knowledge of Pledgor after due inquiry, threatened which questions or
would question the validity of this Security Agreement to which
Pledgor is a party.
(c) The execution, delivery and performance of this
Security Agreement has been duly authorized by all necessary action of
Pledgor. This Security Agreement has been duly executed and delivered
by Pledgor. This Security Agreement when executed and delivered by
Pledgor will constitute a legal, valid and binding obligation of
Pledgor, enforceable according to its terms, subject, as to
enforceability, to applicable bankruptcy, insolvency and similar laws
affecting creditors' rights generally and to general principles of
equity (regardless of whether enforcement is sought in a proceeding in
equity or at law).
(d) All authorizations, consents, approvals,
registrations, filings, exemptions and licenses with or from
governmental or regulatory authorities which are necessary for the
execution and delivery of this Security Agreement or for the
performance by Pledgor of its obligations hereunder have been effected
and obtained are in full force and effect.
(e) Pledgor has good title to the Collateral and is the
sole legal owner thereof, and there are no Liens (other than the
Permitted Liens) existing against any of the Collateral of Pledgor.
(f) The Stock constitutes all of the issued and
outstanding capital stock of the NDE Stock Companies.
(g) This Security Agreement creates a valid security
interest in the Collateral securing the payment of the Secured
Obligations.
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(h) On the date hereof, the Pledgor is "located" (as that
term is defined in Section 9-103(3)(d) of the Uniform Commercial
Code) at 0000 Xxxxx Xxxxx, Xxxx. 000, Xxxxxx, Xxxxx 00000.
ARTICLE IX.
FURTHER ASSURANCES
Pledgor covenants and agrees to from time to time promptly
execute and deliver to the Bank all such other assignments, certificates,
supplemental writings and financing statements, and do all other acts or
things, as the Bank may reasonably request in order to more fully evidence and
perfect the security interest herein created.
ARTICLE X.
PRESERVATION OF RIGHTS
The Bank shall have no duty to fix or preserve rights against
prior parties to the Collateral, and shall never be liable for its failure to
use diligence to collect any amount payable in respect of the Collateral, but
shall be liable only to account to Pledgor for what it may actually collect or
receive thereon.
ARTICLE XI.
DEFAULT
The term "Event of Default" as used herein, means the
occurrence of an Event of Default as defined and as provided in the Loan
Agreement.
ARTICLE XII.
REMEDIES
Upon the occurrence of an Event of Default, in addition to any
and all other rights and remedies which the Bank may then have hereunder,
including without limitation the provisions of Article XIV, or under the
Uniform Commercial Code of the State of Texas (hereinafter called "Code"), or
otherwise, the Bank at its option may: (i) declare the entire unpaid balance
of principal of and all accrued interest on the Secured Obligations immediately
due and payable, without notice, demand, presentment or notice of intention to
accelerate, which are hereby expressly waived; (ii) reduce its claim to
judgment, foreclose or otherwise enforce its security interest in all or any
part of the Collateral by any available judicial procedure; (iii) after
notification, if any, provided for in Article XIII hereof, sell or otherwise
dispose of, at its office, or elsewhere, as chosen by the Bank, all or any part
of the Collateral, and any such sale or other disposition may be as a unit or
in parcels,
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at public or private sale, and by way of one or more contracts (it being agreed
that the sale of any part of the Collateral shall not exhaust the Bank's power
of sale, but sales may be made from time to time until all of the Collateral
has been sold or until all sums payable under the Secured Obligations and
hereunder have been paid in full), and at any such sale it shall not be
necessary to exhibit the Collateral; (iv) at its discretion, retain the
Collateral in satisfaction of the unpaid balance of principal of and interest
upon the Secured Obligations whenever the circumstances are such that the Bank
is entitled to do so under the Code; (v) apply by appropriate judicial
proceedings for appointment of a receiver for the Collateral, or any part
thereof, and Pledgor hereby consents to any such appointment; or (vi) buy the
Collateral at any public or private sale. The Bank shall be entitled to apply
the proceeds of any sale or other disposition of the Collateral in the
following order: first, to the payment of all of its reasonable expenses,
including attorneys' fees and other legal expenses, incurred in holding and
preparing the Collateral, or any part thereof, for sale(s) or other
disposition, in arranging for such sale(s) or other disposition, and in
actually selling the same; and next, toward payment of the unpaid balance of
principal of and interest upon the Secured Obligations and other sums secured
hereby in such order and manner as the Bank, in its discretion, may deem
advisable. The Bank shall account to Pledgor for any surplus. If the proceeds
are not sufficient to pay the Secured Obligations in full, Pledgor shall remain
liable for any deficiency.
ARTICLE XIII.
NOTICE OF SALE
Reasonable notification of the time and place of any public
sale of the Collateral, or reasonable notification of the time after which any
private sale or other intended disposition of the Collateral is to be made,
shall be sent to Pledgor and to any other person entitled under the Code to
notice. It is agreed that notice sent or given not less than ten (10) calendar
days prior to the taking of the action to which the notice relates is
reasonable notification and notice for the purpose of this paragraph.
ARTICLE XIV.
SECURITIES LAWS LIMITATIONS
It is provided in this Security Agreement that upon Event of
Default the Bank may sell the Collateral (including any additions thereto or
substitutions therefor) at public or private sale. Pledgor acknowledges that
because of present or future circumstances, a question may arise under the
Securities Act of 1933, as amended, in connection with such a sale. In that
connection, compliance with that Act may impose limitations on the Bank if it
were to attempt to dispose of certain portions of the Collateral. Similarly,
because of the Pledgor's position as a stockholder of the NDE Stock Companies
or because of other circumstances, there may be other legal restrictions or
limitations affecting the Bank in any attempts to dispose of the Collateral.
For these reasons the Bank is hereby authorized by Pledgor, in the event of any
Event of Default giving rise to the Bank's rights to sell or otherwise dispose
of the Collateral, to sell all or any part of the Collateral at private
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sale, subject to investment letters from the purchasers of the Collateral or in
any other manner which will not require the Collateral, or any part thereof, to
be registered in accordance with the Securities Act of 1933, as amended, or the
rules and regulations promulgated thereunder, at the best price reasonably
obtainable by the Bank at any such private sale or other disposition in the
manner mentioned above. Pledgor clearly understands that the Bank may approach
a restricted number of potential purchasers and that a sale under such
circumstances may yield a lower price for the Collateral, or any part or parts
thereof, than would otherwise be obtainable if the same were registered and
sold in the open market. Pledgor agrees that in the event the Bank shall, upon
a default under the Notes or hereunder sell the Collateral, or any portion
thereof, at such private sale or sales, the Bank shall have the right, but
shall not be obligated, to rely upon the advice and opinion of any national
brokerage firm having a seat on the New York Stock Exchange as to the best
price reasonably obtainable upon such a private sale thereof.
ARTICLE XV.
BANK APPOINTED ATTORNEY-IN-FACT
Pledgor hereby irrevocably appoints the Bank as Pledgor's
attorney-in-fact, with full authority in the place and stead of Pledgor and in
the name of Pledgor or otherwise, from time to time after the occurrence of an
Event of Default, to take any action, to execute any instruments and to
exercise any rights, privileges, options, elections or powers of Pledgor
pertaining or relating to the Collateral which the Bank may reasonably deem
necessary or desirable to preserve and enforce its security interest in the
Collateral and otherwise to accomplish the purposes of this Security Agreement.
The Bank shall not have any duty to take any such action, to execute any such
instrument, to exercise any such rights, privileges, options, elections or
powers or to sell or otherwise to realize upon any of the Collateral, as
hereinafter authorized, and the Bank shall not be responsible for any failure
to do so or delay in so doing.
ARTICLE XVI.
BANK MAY PERFORM
If Pledgor fails to perform any agreement contained herein,
the Bank may (but shall not be obligated to) perform, or cause performance of,
such agreement. Pledgor shall reimburse the Bank on demand for any amounts
paid or any expenses incurred by the Bank in connection therewith.
ARTICLE XVII.
BANK'S DUTIES
The powers conferred on the Bank hereunder are solely to
protect its interest in the Collateral and shall not impose any duty upon it to
exercise any such powers. The Bank shall have
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no duty whatsoever to (i) take any steps to preserve the security interest
granted hereby, or (ii) preserve or protect or take any action whatsoever with
respect to, any of the Collateral.
ARTICLE XVIII.
AMENDMENTS, ETC.
No amendment or waiver of any provision of this Security
Agreement, nor consent to any departure by Pledgor therefrom, shall in any
event be effective unless the same shall be in writing and signed by the Bank,
and then such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given.
ARTICLE XIX.
CUMULATIVE RIGHTS
All rights and remedies of the Bank are cumulative of each
other and of every other right or remedy which the Bank may otherwise have at
law or in equity or under any other contract or other writing for the
enforcement of the security interest herein or the collection of the
indebtedness evidenced by the Secured Obligations, and the exercise of one or
more rights or remedies shall not prejudice or impair the concurrent or
subsequent exercise of other rights or remedies.
ARTICLE XX.
ASSIGNABILITY
The rights, powers and interests held by the Bank hereunder,
together with the Collateral, may be transferred and assigned by the Bank, in
whole or in part, at such time and upon such terms as it may deem advisable;
and the term "Bank" shall be deemed to refer to and include such transferees
and assignees and the holder or holders from time to time of the Secured
Obligations.
ARTICLE XXI.
NO WAIVER
The acceptance by the Bank at any time and from time to time
of part payment of the aggregate amount of the Secured Obligations then matured
shall not be deemed to be a waiver of any default then existing. No waiver by
the Bank of any default shall be deemed to be a waiver of any subsequent
default, nor shall any such waiver by the Bank be deemed to be a continuing
waiver. No delay or omission by the Bank in exercising any right or power
hereunder, or under any other writings executed by Pledgor as security for or
in connection with the Secured Obligations, shall impair any such right or
power or be construed as a waiver thereof or any acquiescence therein, nor
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shall any single or partial exercise of any such right or power preclude other
or further exercise of any other right or power of the Bank hereunder.
ARTICLE XXII.
GOVERNING LAW; SEVERABILITY
THIS SECURITY AGREEMENT IS EXECUTED UNDER AND SHALL BE
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, AND THIS SECURITY
AGREEMENT IS PERFORMABLE IN TEXAS, AND PLEDGOR WAIVES THE RIGHT TO BE SUED
ELSEWHERE. Any provision of this Security Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
ARTICLE XXIII.
BINDING EFFECT
This Security Agreement shall be binding on Pledgor and
Pledgor's successors and assigns and shall inure to the benefit of the Bank and
the Bank's successors and assigns.
ARTICLE XXIV.
NOTICES
Unless otherwise specified herein all notices, requests and
other communications to any party hereunder shall be in writing (including
telex, facsimile or similar writing) and shall be given to such party at its
address or telex or facsimile number set forth below or such other address or
telex or facsimile number as such party may hereafter specify by notice to the
other party. Each such notice, request or other communication shall be
effective (i) if given by telex, when such telex is transmitted to the telex
number specified in this Article XXIV and the appropriate answerback is
received, (ii) if given by facsimile or other form of facsimile transmission,
when the recipient confirms legible transmission thereof, or (iii) if given by
any other means, when delivered at the address specified in this Article:
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(a) If to Pledgor:
NDE ENVIRONMENTAL CORPORATION
0000 Xxxxx Xxxxx, Xxxx. 000
Xxxxxx, Xxxxx 00000
Attention: President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to:
NDE ENVIRONMENTAL CORPORATION
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxx Xxxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(b) If to the Bank:
BANK ONE, TEXAS, N.A.
000 Xxxxxx
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxxx Xxxxxxxxx-Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Any party hereto may at any time, by giving five (5) days written notice to the
other parties hereto, designate any other address in substitution of the
foregoing address to which such notice shall be given.
ARTICLE XXV.
HEADINGS
The article and section headings contained in this Security
Agreement are for reference purposes only and shall have no effect upon the
meaning or interpretation of any provision hereof.
ARTICLE XXVI.
MISCELLANEOUS
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26.01 The principal office of the Pledgor is in Austin,
Texas.
26.02 Pledgor shall, at its expense, make, procure, execute
and deliver such financing statement or amendments thereof or supplements
thereto, or other instruments, certificates and supplemental writings, and do
and deliver all acts, things, writings and assurances as the Bank may from time
to time reasonably require in order to comply with the Code, or any other
applicable law, and to preserve and protect the security interest hereby
granted. In the event, for any reason, that the law of any jurisdiction other
than the State of Texas becomes or is applicable to the Collateral, or any part
thereof, or to any of the Obligation, Pledgor agrees to execute and deliver all
such instruments and do all such other things as may be necessary or
appropriate to preserve, protect and enforce the security interests or liens of
the Bank, under the law of such other jurisdiction, to at least the same extent
as such security interests would be protected under the Code.
26.03 Pledgor shall perform, at its sole cost and expense,
any and all steps, and shall pay the amount of all expenses necessary to
obtain, preserve, perfect, defend and enforce the security interest in any of
the Collateral, the collection of the Obligation, and preserve, defend, enforce
and collect the Collateral.
26.04 Should the Collateral or any part thereof, ever be in
any manner converted into another type of property or any money or other
proceeds ever be paid or delivered to the Pledgor as a result of Pledgor's
rights in the Collateral, then, in any such event, all such property, money or
other proceeds shall become part of the Collateral, and Pledgor covenants to
forthwith pay and deliver to the Bank all of the same, which are acceptable of
delivery, and, at the same time Pledgor will properly endorse or assign the
same.
26.05 THIS WRITTEN AGREEMENT REPRESENTS THE FINAL AGREEMENT
BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
[THE REST OF THIS PAGE LEFT INTENTIONALLY BLANK.]
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EXECUTED as of the day and year first above written.
PLEDGOR:
NDE ENVIRONMENTAL CORPORATION,
a Delaware corporation
By: /s/ XXX XXXXX XXXXXXX
------------------------------------------
Xxx Xxxxx Xxxxxxx
Chairman of the Board
BANK:
BANK ONE, TEXAS, N.A.
By: /s/ XXXXXXX XXXXXXXXX-XXXXX
------------------------------------------
Xxxxxxx Xxxxxxxxx-Xxxxx
Vice President
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