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SECURITY AGREEMENT
BETWEEN
EDGE PETROLEUM CORPORATION
EDGE PETROLEUM EXPLORATION COMPANY
(DEBTOR)
AND
COMPASS BANK, AGENT
(SECURED PARTY)
April 1, 1998
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TABLE OF CONTENTS
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Page
ARTICLE I DEFINITIONS AND INTERPRETATION . . . . . . . . . . . . . . . . 1
1.1 Terms Defined Above. . . . . . . . . . . . . . . . . . 1
1.2 Terms Defined in Credit Agreement. . . . . . . . . . . 1
1.3 Additional Defined Terms . . . . . . . . . . . . . . . 1
1.4 Undefined Financial Accounting Terms . . . . . . . . . 3
1.5 References.. . . . . . . . . . . . . . . . . . . . . . 3
1.6 Articles and Sections. . . . . . . . . . . . . . . . . 3
1.7 Number and Gender. . . . . . . . . . . . . . . . . . . 3
ARTICLE II GRANT OF SECURITY INTEREST . . . . . . . . . . . . . . . . . . 4
ARTICLE III REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . 4
3.1 Validity, Perfection and Priority. . . . . . . . . . . 4
3.2 No Liens; Other Financing Statements . . . . . . . . . 4
3.3 Location of Debtor and Collateral. . . . . . . . . . . 5
3.4 Accounts . . . . . . . . . . . . . . . . . . . . . . . 5
3.5 Tradenames; Prior Names. . . . . . . . . . . . . . . . 5
ARTICLE IV COVENANTS. . . . . . . . . . . . . . . . . . . . . . . . . . . 5
4.1 Further Assurances . . . . . . . . . . . . . . . . . . 5
4.2 Change of Chief Executive Office . . . . . . . . . . . 6
4.3 Change of Name or Corporate Structure. . . . . . . . . 6
4.4 Maintain Records and Accounts. . . . . . . . . . . . . 6
4.5 Right of Inspection. . . . . . . . . . . . . . . . . . 6
4.6 Possession of Collateral . . . . . . . . . . . . . . . 7
4.7 Financing Statement Filings; Notifications . . . . . . 7
ARTICLE V ACCOUNTS . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
5.1 Debtor Remains Liable under Accounts . . . . . . . . . 7
5.2 Collections on Accounts. . . . . . . . . . . . . . . . 8
ARTICLE VI POWER OF ATTORNEY. . . . . . . . . . . . . . . . . . . . . . . 8
6.1 Appointment as Attorney-in-Fact. . . . . . . . . . . . 8
6.2 No Duty on the Part of Secured Party . . . . . . . . . 9
ARTICLE VII REMEDIES; RIGHTS UPON DEFAULT. . . . . . . . . . . . . . . . . 10
7.1 Rights and Remedies Generally. . . . . . . . . . . . . 10
7.2 Proceeds . . . . . . . . . . . . . . . . . . . . . . . 10
7.3 Collection of Accounts . . . . . . . . . . . . . . . . 10
7.4 Disposition of Collateral. . . . . . . . . . . . . . . 10
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7.5 Debtor's Accounts. . . . . . . . . . . . . . . . . . . 11
7.6 Possession of Collateral . . . . . . . . . . . . . . . 11
7.7 Disposition of the Collateral. . . . . . . . . . . . . 11
7.8 Recourse . . . . . . . . . . . . . . . . . . . . . . . 12
7.9 Expenses; Attorneys' Fees. . . . . . . . . . . . . . . 12
7.10 Application of Proceeds. . . . . . . . . . . . . . . . 12
7.11 Limitation on Duties Regarding Preservation of
Collateral . . . . . . . . . . . . . . . . . . . . . 13
7.12 Waiver of Claims . . . . . . . . . . . . . . . . . . . 13
7.13 Discontinuance of Proceedings. . . . . . . . . . . . . 14
ARTICLE VIII INDEMNITY. . . . . . . . . . . . . . . . . . . . . . . 14
8.1 INDEMNITY. . . . . . . . . . . . . . . . . . . . . . . 14
8.2 Indemnity Obligations Secured by Collateral;
Survival . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE IX MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . . . . 15
9.1 No Waiver; Remedies Cumulative . . . . . . . . . . . . 15
9.2 Termination; Release . . . . . . . . . . . . . . . . . 15
9.3 Counterparts . . . . . . . . . . . . . . . . . . . . . 16
9.4 Marshalling. . . . . . . . . . . . . . . . . . . . . . 16
9.5 Severability . . . . . . . . . . . . . . . . . . . . . 16
9.6 Financing Statement Filing . . . . . . . . . . . . . . 16
9.7 Notices and Other Communications . . . . . . . . . . . 16
9.8 Parties in Interest. . . . . . . . . . . . . . . . . . 16
9.9 Amendments . . . . . . . . . . . . . . . . . . . . . . 16
9.10 ENTIRE AGREEMENT . . . . . . . . . . . . . . . . . . . 16
9.11 GOVERNING LAW. . . . . . . . . . . . . . . . . . . . . 17
9.12 JURISDICTION AND VENUE . . . . . . . . . . . . . . . . 17
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SECURITY AGREEMENT
This SECURITY AGREEMENT (this "AGREEMENT"), dated as of April 1, 1998,
is by and between EDGE PETROLEUM CORPORATION, a Delaware corporation and EDGE
PETROLEUM EXPLORATION COMPANY, a Delaware corporation (collectively the
"DEBTOR"), and COMPASS BANK, a Texas state chartered banking institution, as
AGENT for itself and The First National Bank of Chicago and other Lenders who
are signatory to the Credit Agreement ("SECURED PARTY").
W I T N E S S E T H:
WHEREAS, pursuant to the terms and conditions of the Credit Agreement
dated April 1, 1998, by and among Debtor, et al., and the Secured Party (as
amended, restated, or supplemented from time to time, the "CREDIT AGREEMENT"),
the Secured Party has agreed to extend credit to or for the benefit of Debtor;
and
WHEREAS, pursuant to the Credit Agreement and as an inducement to the
Secured Party to extend credit to or for the benefit of the Debtor pursuant to
the Credit Agreement, Debtor has agreed to execute this Agreement in favor of
the Secured Party;
NOW, THEREFORE, in consideration of the premises and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND INTERPRETATION
I.1 TERMS DEFINED ABOVE. As used herein, each of the terms
"AGREEMENT," "CREDIT AGREEMENT," "DEBTOR," and "SECURED PARTY" shall have the
meaning assigned to such term hereinabove.
I.2 TERMS DEFINED IN CREDIT AGREEMENT. Each capitalized term used
but not defined herein shall have the meaning assigned to such term in the
Credit Agreement.
I.3 ADDITIONAL DEFINED TERMS. As used herein, each of the following
terms shall have the following meanings:
"ACCOUNTS" shall mean all accounts receivable, book debts, notes,
drafts, instruments, documents, acceptances, and other forms of
obligations now owned or hereafter received or acquired by or
belonging or owing to Debtor (including, without limitation, under any
trade names, styles, or divisions thereto), whether arising from the
sale or lease of goods or the rendition of services or any other
transaction (including, without limitation,
any such obligation which might be characterized as an account, general
intangible, other than contract rights under contracts containing
prohibitions against assignment of or the granting of a security interest
in the rights of a party thereunder, or chattel paper under the Uniform
Commercial Code in effect in any jurisdiction), and all rights of Debtor
in, to, and under all purchase orders now owned or hereafter received or
acquired by it for goods or services, and all rights of Debtor to any goods
the sale or lease of which gave rise to any of the foregoing (including,
without limitation, returned or repossessed goods and rights of unpaid
sellers), and all moneys due or to become due to Debtor under all contracts
for the sale or lease of goods or the performance of services (whether or
not earned by performance) or in connection with any other transaction, now
in existence or hereafter arising, including, without limitation, all
collateral security and guarantees of any kind given by any Person with
respect to any of the foregoing.
"ACCOUNT DEBTOR" shall mean each Person obligated on an Account,
Chattel Paper, or General Intangible.
"ACCOUNT RECORDS" shall mean (a) all original copies of all
documents, instruments, or other writings evidencing the Accounts, (b)
all books, correspondence, credit or other files, records, ledger
sheets or cards, invoices, and other papers relating to the Accounts,
including, without limitation, all tapes, cards, computer tapes,
computer discs, computer runs, record keeping systems, and other
papers and documents relating to the Accounts, whether in the
possession or under the control of Debtor or any computer bureau or
agent from time to time acting for or on behalf of Debtor or
otherwise, (c) all evidences of the filing of financing statements and
the registration of other instruments in connection therewith and
amendments, supplements, or other modifications thereto, notices to
other creditors or secured parties, and certificates,
acknowledgements, or other writings, including, without limitation,
lien search reports, from filing or other registration offices, (d)
all credit information, reports, and memoranda relating thereto, and
(e) all other written or non-written forms of information related in
any way to the foregoing or any Account.
"CHATTEL PAPER" shall mean all chattel paper (as such term is
defined in Section 9-105(a)(2) of the UCC) of the Debtor.
"COLLATERAL" shall have the meaning assigned to it in Article II.
"COMMODITY HEDGE AGREEMENT" shall mean any agreement, device or
arrangement entered into by one Person with another Person providing
for payments which are related to fluctuations in the price of
petroleum (or any fraction thereof), natural gas, or natural gas
liquids (including, but not limited to, swaps, caps, collars, options,
puts, calls, futures and forward contracts).
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"GENERAL INTANGIBLES" shall mean all general intangibles (as such
term is defined in Section 9-106 of the UCC) of Debtor, including,
without limitation, rights to the payment of money (other than
Accounts), net profit interests, contracts, licenses, and franchises
(excluding licenses and franchises which prohibit the assignment or
grant of a security interest by Debtor), federal income tax refunds,
trade names, distributions on certificated securities (as defined in
Section 8-102(a)(1) of the UCC) and uncertificated securities (as
defined in Section 8-102(a)(2) of the UCC), computer programs and
other computer software, inventions, designs, trade secrets, goodwill,
proprietary rights, customer lists, supplier contracts, sale orders,
correspondence, advertising materials, payments due in connection with
any requisition, confiscation, condemnation, seizure or forfeiture of
any property, reversionary interests in pension and profit-sharing
plans and reversionary, beneficial and residual interests in trusts,
credits with and other claims against any Person, together with any
collateral for any of the foregoing and the rights under any security
agreement granting a security interest in such collateral.
"INDEMNITEES" shall mean the Secured Party and its shareholders,
officers, directors, employees, agents, attorneys-in-fact, and
affiliates.
"PROCEEDS" shall mean proceeds (as such term is defined in
Section 9-306(a) of the UCC).
"SECURED OBLIGATIONS" shall mean the Obligations.
"UCC" shall mean the Uniform Commercial Code as in effect from
time to time in the State of Texas.
I.4 UNDEFINED FINANCIAL ACCOUNTING TERMS. Undefined financial
accounting terms used in this Agreement shall have the meanings assigned to such
terms according to GAAP.
I.5 REFERENCES. The words "hereby," "herein," "hereinabove,"
"hereinafter," "hereinbelow," "hereof," "hereunder," and words of similar import
when used in this Agreement shall refer to this Agreement as a whole and not to
any particular Article, Section, or provision of this Agreement. References in
this Agreement to Articles, Sections, or Exhibits are to such Articles,
Sections, or Exhibits of this Agreement unless otherwise specified.
I.6 ARTICLES AND SECTIONS. This Agreement, for convenience only, has
been divided into Articles and Sections; and it is understood that the rights
and other legal relations of the parties hereto shall be determined from this
instrument as an entirety and without regard to the aforesaid division into
Articles and Sections and without regard to headings prefixed to such Articles
or Sections.
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I.7 NUMBER AND GENDER. 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. Definitions of terms
defined in the singular or plural shall be equally applicable to the plural or
singular, as the case may be, unless otherwise indicated.
ARTICLE II
GRANT OF SECURITY INTEREST
As security for the prompt and complete payment and performance in
full of all Secured Obligations, Debtor hereby assigns and transfers for the
purpose of security and pledges to the Secured Party and grants to the Secured
Party a security interest in and continuing lien on all right, title, and
interest of Debtor in, to, and under the following, in each case, whether now
owned or existing or hereafter acquired or arising, and wherever located (all of
which is herein collectively called the "COLLATERAL"):
(a) all Accounts;
(b) all Account Records;
(c) all Chattel Paper;
(d) all General Intangibles;
(e) all Commodity Hedge Agreements; and
(f) all accessions and additions to any or all of the foregoing,
all substitutions and replacements for any or all of the
foregoing, and all Proceeds and products of any or all of
the foregoing.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Debtor hereby represents and warrants to the Secured Party, which
representations and warranties shall survive execution and delivery of this
Agreement, as follows:
III.1 VALIDITY, PERFECTION AND PRIORITY. The security interests in the
Collateral granted to the Secured Party hereunder constitute valid and
continuing security interests in the Collateral. Upon the filing of financing
statements, naming Debtor as
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"debtor" and the Secured Party as "secured party" and describing the Collateral,
in the filing offices set forth on Exhibit A, the security interests granted to
the Secured Party hereunder will constitute valid first-priority perfected
security interests in all Collateral with respect to which a security interest
can be perfected by the filing of a financing statement, subject only to
Permitted Liens.
III.2 NO LIENS; OTHER FINANCING STATEMENTS. (a) Except for the Lien
granted to the Secured Party hereunder and Permitted Liens, Debtor owns each
item of the Collateral free and clear of any and all Liens, rights, or claims of
all other Persons, and Debtor shall defend the Collateral against all claims and
demands of all Persons at any time claiming the same or any interest therein
adverse to the Secured Party.
(b) No financing statement or other evidence of Lien covering or
purporting to cover any of the Collateral is on file in any public office other
than (i) financing statements in favor of the Secured Party, (ii) financing
statements for which proper termination statements have been delivered to the
Secured Party for filing, and (iii) financing statements filed in connection
with Permitted Liens.
III.3 LOCATION OF DEBTOR AND COLLATERAL. The chief executive office of
Debtor is located at 0000 Xxxxxx Xxxxxxxx Xxxxx, Xxxxxxx, Xxxxx 00000. The
primary copies of the Account Records are located at, and all Accounts and
General Intangibles are maintained at, and controlled and directed (including,
without limitation, for general accounting purposes) from, such chief executive
office.
III.4 ACCOUNTS. (a) Each Account (i) is and will be, in all material
respects, the genuine, legal, valid, and binding obligation of the Account
Debtor in respect thereof, representing an unsatisfied obligation of such
Account Debtor, (ii) is and will be, in all material respects, enforceable in
accordance with its terms, (iii) is not and will not be subject to any setoffs,
defenses, taxes, counterclaims (except (A) with respect to refunds, returns, and
allowances in the ordinary course of business, and (B) to the extent that such
Account may not yet have been earned by performance), and (iv) is and will be,
in all material respects, in compliance with all applicable laws, whether
federal, state, local, or foreign.
(b) No Accounts which are evidenced by Chattel Paper require the
consent of the Account Debtor in respect thereof in connection with their
assignment hereunder.
III.5 TRADENAMES; PRIOR NAMES. Debtor has not conducted business under
any name other than its current name during the last five years.
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ARTICLE IV
COVENANTS
Debtor covenants and agrees with the Secured Party that from and after
the date of this Agreement:
IV.1 FURTHER ASSURANCES. At any time and from time to time, upon the
request of the Secured Party, and at the sole expense of Debtor, Debtor will
promptly and duly execute and deliver any and all such further instruments,
endorsements, powers of attorney, and other documents, make such filings, give
such notices, and take such further action as the Secured Party may reasonably
deem desirable in obtaining the full benefits of this Agreement and the rights,
remedies, and powers herein granted, including, without limitation, the
following:
(a) the filing of financing statements, in form acceptable to
the Secured Party under the Uniform Commercial Code in effect in any
jurisdiction with respect to the liens and security interests granted
hereby;
(b) the performance of all searches of public records deemed
necessary by the Secured Party to establish and determine the priority
of the security interests of the Secured Party or to determine the
presence or priority of other secured parties; and
(c) the furnishing to the Secured Party from time to time of
reports and schedules in connection with the Collateral as required
pursuant to the Credit Agreement, all in reasonable detail and in form
reasonably satisfactory to the Secured Party.
IV.2 CHANGE OF CHIEF EXECUTIVE OFFICE. Debtor will not move its chief
executive office except to such new location as Debtor may establish in
accordance with the last sentence of this Section. The originals of all Account
Records and General Intangibles will be kept at such chief executive office or
at the locations referred to in Section 3.3, or at such new locations as Debtor
may establish in accordance with the last sentence of this Section. All
Accounts, Account Records, and General Intangibles of Debtor will be maintained
at and controlled and directed (including, without limitation, for general
accounting purposes) from the locations referred to in Section 3.3 or such new
locations as the Debtor may establish in accordance with the last sentence of
this Section. With respect to any new location, promptly upon the request of the
Secured Party, Debtor shall take all such action as the Secured Party may
request to maintain the security interest of the Secured Party in the Collateral
granted hereby at all times fully perfected with the same or better priority and
in full force and effect. Debtor shall not establish a new location for its
chief executive office or such activities (or move any such activities from the
locations referred to in Section 3.3) until it shall have given to the Secured
Party not less than ten days' prior written notice of its intention to do so,
clearly describing such new location and providing
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such other information in connection therewith as the Secured Party may
reasonably request.
IV.3 CHANGE OF NAME OR CORPORATE STRUCTURE. Debtor shall not change
its name or corporate structure or conduct business under any name other than
its current name without giving notice thereof to the Secured Party within ten
days thereafter, clearly describing such new name, or corporate structure or
such new tradename and providing such other information in connection therewith
as the Secured Party may reasonably request. With respect to such new name,
corporate structure, or tradename, promptly upon the request of the Secured
Party, Debtor shall take all such action as the Secured Party may reasonably
request to maintain the security interest of the Secured Party in the Collateral
granted hereby at all times fully perfected with the same or better priority and
in full force and effect.
IV.4 MAINTAIN RECORDS AND ACCOUNTS. Debtor will keep and maintain, or
cause to be kept and maintained, at its own cost and expense satisfactory and
complete records of the Collateral, including, but not limited to, the originals
of all documentation with respect to all Accounts and General Intangibles and
records of all payments received and all credits granted on the Accounts, all
merchandise returned, and all other dealings therewith.
IV.5 RIGHT OF INSPECTION. The Secured Party shall upon reasonable
notice to Debtor have full and free access during normal business hours of
Debtor to all the books, correspondence, and records of Debtor; and the Secured
Party and its representatives may examine the same, take extracts therefrom, and
make photocopies thereof.
IV.6 POSSESSION OF COLLATERAL. The Secured Party shall be deemed to
have possession of any of the Collateral in transit to it or set apart for it.
Otherwise the Collateral shall remain in Debtor's constructive possession and
control at all times, at Debtor's risk of loss, and shall (except for sales
permitted by Section 6.4 of the Credit Agreement) be kept at the locations
represented in Section 3.3.
IV.7 FINANCING STATEMENT FILINGS; NOTIFICATIONS. Debtor recognizes
that financing statements pertaining to the Collateral have been or will be
filed with the offices of the Secretary of State for the States listed in
Exhibit A hereto. Debtor will immediately notify the Secured Party of any
condition or event that may change the proper location for the filing of any
financing statement or other public notice or recording for the purpose of
perfecting a security interest in the Collateral. Without limiting the
generality of the foregoing, Debtor will (a) notify the Secured Party within a
reasonable period of time in advance of any change to a jurisdiction other than
as represented in Section 3.3 hereof, (i) in the location of Debtor's chief
place of business, (ii) in the location of the office where Debtor keeps its
records concerning the Accounts and the General Intangibles and the original of
all the Accounts Records, or (iii) in the "location" of Debtor within the
meaning of Section 9-103(c) of the UCC, and (b) immediately notify Secured Party
of any change in Debtor's name. In any notice furnished pursuant to this
Section, Debtor will expressly state that the notice is required by this
Agreement and contains facts that will or may require
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additional filings of financing statements or other notices for the purpose of
continuing perfection of the Secured Party's security interest in the
Collateral.
ARTICLE V
ACCOUNTS
V.1 DEBTOR REMAINS LIABLE UNDER ACCOUNTS. Anything herein to the
contrary notwithstanding (including, without limitation, the grant of any rights
to the Secured Party), Debtor shall remain liable under each of the Accounts to
observe and perform all the conditions and obligations to be observed and
performed by it thereunder, all in accordance with the terms of any agreement
giving rise to each such Account. The Secured Party shall have no obligation or
liability under any Account (or any agreement giving rise thereto) by reason of
or arising out of this Agreement or the receipt by the Secured Party of any
payment relating to such Account pursuant hereto, nor shall the Secured Party be
obligated in any manner to perform any of the obligations of Debtor under or
pursuant to any Account (or any agreement giving rise thereto), to make any
payment, to make any inquiry as to the nature or the sufficiency of any payment
received by it or as to the sufficiency of any performance by any party under
any Account (or any agreement giving rise thereto), to present or file any
claim, to take any action to enforce any performance, or to collect the payment
of any amounts which may have been assigned to it or to which it may be entitled
at any time or times.
V.2 COLLECTIONS ON ACCOUNTS. Prior to the occurrence of an Event of
Default, the Secured Party hereby authorizes Debtor to collect the Accounts. At
any time following and during the continuance of any Event of Default, the
Secured Party may curtail or terminate said authority at any time and itself, or
by its agents, collect all Accounts, and any payments of Accounts collected by
Debtor shall be held by Debtor in trust for the Secured Party, segregated from
other funds of Debtor. All Proceeds, while held by the Secured Party (or by
Debtor in trust for the Secured Party) shall continue to be Collateral securing
all of the Secured Obligations and shall not constitute payment thereof until
applied as hereinafter provided.
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ARTICLE VI
POWER OF ATTORNEY
VI.1 APPOINTMENT AS ATTORNEY-IN-FACT. Debtor hereby irrevocably
constitutes and appoints the Secured Party and any officer or agent thereof,
with full power of substitution, as its true and lawful attorney-in-fact, with
full irrevocable power and authority in the place and stead of Debtor and in the
name of Debtor or in its own name, from time to time in the discretion of the
Secured Party, for the purpose of carrying out the terms of this Agreement, to
take any and all appropriate action and to execute any and all documents and
instruments which may be necessary or desirable to accomplish the purposes of
this Agreement, and, without limiting the generality of the foregoing, Debtor
hereby gives the Secured Party the power and right, on behalf of Debtor, without
notice to or assent by the Debtor, to do the following:
(a) in the case of any Account, at any time when the authority
of Debtor to collect the Accounts has been curtailed or terminated
pursuant hereto, or in the case of any other Collateral, at any time
when any Event of Default shall have occurred and be continuing, in
the name of Debtor or its own name, or otherwise, to take possession
of and indorse and collect any checks, drafts, notes, acceptances, or
other instruments for the payment of moneys due under, or with respect
to, any Collateral; in the name of Debtor or otherwise to direct any
party liable for any payment under any of the Collateral to make
payment of any and all moneys due or to become due thereunder directly
to the Secured Party or as the Secured Party shall direct; to ask or
demand for, collect, receive payment of, and receipt for, any and all
moneys, claims, and other amounts due or to become due at any time in
respect of or arising out of any Collateral;
(b) at any time when an Event of Default shall have occurred and
be continuing, to prepare, sign, and file financing statements and
amendments thereto in the name of Debtor;
(c) at any time when an Event of Default shall have occurred and
be continuing, to take or cause to be taken all actions necessary to
perform or comply or cause performance or compliance with the terms of
this Agreement, including, without limitation, actions to pay or
discharge taxes and Liens levied or placed on or threatened against
the Collateral, to effect any repairs or obtain any insurance called
for by the terms of this Agreement, and to pay all or any part of the
premiums therefor and the costs thereof;
(d) upon the occurrence and during the continuance of any Event
of Default, (i) to sign and indorse any invoices, freight or express
bills, bills of lading, storage or warehouse receipts, drafts against
debtor, assignments, verifications, notices, and other documents in
connection with any of the
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Collateral, (ii) to commence and prosecute any suits, actions, or
proceedings at law or in equity in any court of competent jurisdiction to
collect the Collateral or any portion thereof and to enforce any other
right in respect of any Collateral, (iii) to defend any suit, action, or
proceeding brought against Debtor with respect to any Collateral, (iv) to
settle, compromise, or adjust any suit, action, or proceeding described in
the preceding clause and, in connection therewith, to give such discharges
or releases as the Secured Party may deem appropriate, and (v) generally,
to sell or transfer and make any agreement with respect to or otherwise
deal with any of the Collateral as fully and completely as though the
Secured Party were the absolute owner thereof for all purposes, and to do,
at the option of the Secured Party and the expense of Debtor, at any time,
or from time to time, all acts and things which the Secured Party deems
necessary to protect, preserve, or realize upon the Collateral and the
Liens of the Secured Party thereon and to effect the intent of this
Agreement, all as fully and effectively as Debtor might do; and
(e) at any time when an Event of Default shall have occurred and
be continuing, to execute, in connection with any foreclosure, any
endorsements, assignments, or other instruments of conveyance or
transfer with respect to the Collateral.
Debtor hereby ratifies all that said attorneys shall lawfully do or
cause to be done by virtue hereof. This power of attorney is a power coupled
with an interest and shall be irrevocable so long as any Obligation remains
outstanding or any Commitment exists. Debtor hereby acknowledges and agrees
that in acting pursuant to this power-of-attorney the Secured Party shall be
acting in its own interest and shall have no fiduciary duties to the Debtor, and
Debtor hereby waives any claims to the rights of a beneficiary of a fiduciary
relationship hereunder.
VI.2 NO DUTY ON THE PART OF SECURED PARTY. The powers conferred on
the Secured Party hereunder are solely to protect the interests of the Secured
Party in the Collateral and shall not impose any duty upon the Secured Party to
exercise any such powers. The Secured Party shall be accountable only for
amounts that it actually receives as a result of the exercise of such powers,
and, except for its own gross negligence, neither it nor any of its officers,
directors, employees, or agents shall be responsible to the Debtor for any act
or failure to act hereunder.
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ARTICLE VII
REMEDIES; RIGHTS UPON DEFAULT
VII.1 RIGHTS AND REMEDIES GENERALLY. If an Event of Default shall
occur and be continuing, then and in every such case, the Secured Party shall
have all the rights of a secured party under the UCC, all rights now or
hereafter existing under all other applicable laws, and, subject to any
mandatory requirements of applicable law then in effect, all rights set forth in
this Agreement and the other Loan Documents. No enumeration of rights in this
Section or elsewhere in this Agreement or in any other Loan Document or other
agreement shall be deemed to in any way limit the rights of the Secured Party as
described in this Section.
VII.2 PROCEEDS. If an Event of Default shall occur and be continuing,
in addition to the rights of the Secured Party specified with respect to the
payment of Accounts, (a) all Proceeds received by Debtor consisting of cash,
checks, and other near-cash items shall be held by Debtor in trust for the
Secured Party, segregated from other funds of Debtor, and shall forthwith upon
receipt by Debtor, be turned over to the Secured Party, in the same form
received by Debtor (appropriately indorsed or assigned by the Debtor to the
order of the Secured Party or in such other manner as shall be satisfactory to
the Secured Party), and (b) any and all such Proceeds received by the Secured
Party (whether from Debtor or otherwise), or any part thereof, shall be applied
by the Secured Party as provided in Section 7.10 hereof.
VII.3 COLLECTION OF ACCOUNTS. If an Event of Default shall occur and
be continuing:
(a) the Secured Party may instruct the obligor or obligors on
any obligation owing or purporting to be owed to Debtor constituting
the Collateral (including, without limitation, the Accounts) to make
any payment required by the terms of such obligation directly to the
Secured Party;
(b) the Secured Party shall have the right from time to time to
modify (including, without limitation, to extend the time for payment
or arrange for payment in installments) or waive rights under any such
obligation and to compromise or settle counterclaims or setoffs with
the obligor under any such obligation; and
(c) any and all of such proceeds of such collections paid to the
Secured Party, or any part thereof, (after deduction of the Secured
Party's expenses of collection, including, without limitation,
reasonable attorneys' fees and disbursements), shall be applied by the
Secured Party as provided in Section 7.10 hereof.
VII.4 DISPOSITION OF COLLATERAL. If an Event of Default shall occur
and be continuing:
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(a) the Secured Party may direct Debtor to sell, assign, or
otherwise liquidate or dispose of all or from time to time any portion
of the Collateral, and Debtor shall do so, and the Secured Party may
take possession of the Proceeds of such Collateral. The Secured Party
may direct Debtor to direct that all Proceeds of such Collateral be
paid directly to the Secured Party or may permit the Proceeds of such
Collateral to be paid to Debtor and all such Proceeds consisting of
cash, checks, or near-cash items shall be held by Debtor in trust for
the Secured Party, segregated from other funds of Debtor in a separate
deposit account containing only Proceeds and shall forthwith upon
receipt by Debtor, be turned over to the Secured Party, in the same
form received by Debtor (appropriately indorsed or assigned by Debtor
to the order of the Secured Party or in such other manner as shall be
satisfactory to the Secured Party); and
(b) any and all such Proceeds received by the Secured Party
(whether from Debtor or otherwise), shall be applied by the Secured
Party as provided in Section 7.10 hereof.
VII.5 DEBTOR'S ACCOUNTS. If an Event of Default shall occur and be
continuing, the Secured Party may liquidate any securities held in any accounts
of Debtor and apply the proceeds thereof and any other amounts held in any
accounts of Debtor as provided in Section 7.10 hereof.
VII.6 POSSESSION OF COLLATERAL. If an Event of Default shall occur and
be continuing, (a) the Secured Party may, personally or by agents or attorneys,
immediately retake possession of the Collateral (including the originals of all
or any Accounts and Account Records) or any part thereof, from Debtor or any
other Person which then has possession of any part thereof with or without
notice or judicial process, and for that purpose may enter upon Debtor's
premises where any of the Collateral is located and remove the same and may make
reasonable use in connection with such removal of any and all services,
supplies, aids, and other facilities of Debtor, and (b) upon three days' notice
to Debtor, Debtor shall, at its own expense, assemble the Collateral, including,
without limitation, the originals of all Account Records (or from time to time
any portion thereof) and make it available to the Secured Party by delivery to
the Secured Party at any location designated by the Secured Party which is
reasonably convenient to both parties, whether at the premises of Debtor or the
Secured Party or elsewhere. Debtor shall, at its sole expense, store and keep
any Collateral so assembled at such place or places pending further action by
the Secured Party and while the Collateral shall be so stored and kept, provide
such guards and maintenance services as shall be reasonably necessary to protect
the same and to preserve and maintain the Collateral in good condition.
Debtor's obligation to so assemble and deliver the Collateral is of the essence
of this Agreement and, accordingly, upon application to a court of equity having
jurisdiction, the Secured Party shall be entitled to a decree requiring specific
performance by the Debtor of such obligation.
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VII.7 DISPOSITION OF THE COLLATERAL. If an Event of Default shall
occur and be continuing, the Secured Party may sell, assign, lease, give an
option or options to purchase, or otherwise dispose of the Collateral (or
contract to do any of the foregoing) under one or more contracts or as an
entirety, and, to the extent permitted by applicable law, without the necessity
of gathering at the place of sale the property to be sold, at public or private
sale or sales, conducted by any officer, nominee or agent of, or auctioneer or
attorney for the Secured Party at any location of any third party conducting or
otherwise involved in such sale or any office of the Secured Party or elsewhere
and in general in such manner, at such time or times and upon such terms and
conditions and at such price as may be commercially reasonable, for cash or on
credit or for future delivery without assumption of any credit risk. Any of the
Collateral may be sold, leased, assigned, or options or contracts entered to do
so, or otherwise disposed of, in the condition in which the same existed when
taken by the Secured Party or after any overhaul or repair which may be
commercially reasonable. Any such disposition which shall be a private sale or
other private proceeding shall be made upon not less than ten days' written
notice to Debtor specifying the time after which such disposition is to be made
and the intended sale price or other consideration therefor. Any such
disposition which shall be a public sale shall be made upon not less than ten
days' written notice to Debtor (which Debtor agrees to be commercially
reasonable) specifying the time and place of such sale and, in the absence of
applicable requirements of law to the contrary, shall be by public auction
(which may, at the option or the Secured Party, be subject to reserve), after
publication of commercially reasonable notice of such auction. To the extent
permitted by applicable law, the Secured Party may bid for and become the
purchaser of the Collateral or any item thereof, offered for sale in accordance
with this Section without accountability to Debtor (except to the extent of
surplus money received) as provided below. In the payment of the purchase price
of the Collateral, the purchaser shall be entitled to have credit on account of
the purchase price thereof of amounts owing to such purchaser on account of any
of the Secured Obligations and any such purchaser may deliver notes, claims for
interest, or claims for other payment with respect to such Secured Obligations
in lieu of cash up to the amount which would, upon distribution of the net
proceeds of such sale, be payable thereon. Such notes, if the amount payable
hereunder shall be less than the amount due thereon, shall be returned to the
holder thereof after being appropriately stamped to show partial payment.
Notwithstanding the foregoing, if the Collateral or any portion thereof is
perishable or threatens to decline speedily in value or is of a type customarily
sold in a recognized market only such notice as shall be reasonably practicable
shall be required.
VII.8 RECOURSE. Debtor shall remain liable for any deficiency if the
proceeds of any sale or other disposition of the Collateral are insufficient to
satisfy the Secured Obligations. Debtor shall also be liable for all reasonable
expenses of the Secured Party incurred in connection with collecting such
deficiency, including, without limitation, the reasonable fees and disbursements
of any attorneys employed by the Secured Party to collect such deficiency.
VII.9 EXPENSES; ATTORNEYS' FEES. Debtor shall reimburse the Secured
Party for all its reasonable expenses in connection with the exercise of its
rights and remedies hereunder, including, without limitation, reasonable
attorneys' fees and legal expenses incurred by the Secured Party.
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VII.10 APPLICATION OF PROCEEDS. The proceeds of any disposition of
Collateral shall be applied pursuant to Section 7.3 of the Credit Agreement.
VII.11 LIMITATION ON DUTIES REGARDING PRESERVATION OF COLLATERAL. The
Secured Party's sole duty with respect to the custody, safekeeping, and physical
preservation of the Collateral in its possession, under Section 9.207 of the UCC
or otherwise, shall be to deal with it in the same manner as the Secured Party
deals with similar property for its own account. The Secured Party shall have
no obligation to take any steps to preserve rights against prior parties to any
Collateral. Except for matters constituting gross negligence, neither the
Secured Party nor any of its directors, officers, employees, or agents shall be
liable for failure to demand, collect, or realize upon all or any part of the
Collateral or for any delay in doing so or shall be under any obligation to sell
or otherwise dispose of any Collateral upon the request of the Debtor or
otherwise.
VII.12 WAIVER OF CLAIMS. Except as otherwise provided in this
Agreement, Debtor hereby waives, to the extent permitted by applicable law,
notice of and judicial hearing in connection with the Secured Party's taking
possession or the Secured Party's disposition of any of the Collateral in
accordance herewith, including, without limitation, any and all prior notice and
hearing for any prejudgment remedy or remedies and any such right which the
Debtor would otherwise have under the constitution or any statute of the United
States or any state, and Debtor hereby further waives, to the extent permitted
by law:
(a) all damages occasioned by such taking of possession except
any damages which are the direct result of the gross negligence of the
Secured Party;
(b) all other requirements as to the time, place, and terms of
sale or other requirements with respect to the enforcement of the
rights of the Secured Party hereunder;
(c) demand of performance or other demand, notice of intent to
demand or accelerate, notice of acceleration, presentment, protest,
advertisement, or notice of any kind to or upon Debtor or any other
Person, except as may be required by the Credit Agreement; and
(d) all rights of redemption, appraisement, valuation,
diligence, stay, extension, or moratorium now or hereafter in force
under any applicable law in order to stay or delay the enforcement of
this Agreement, including the absolute sale of the Collateral or any
portion thereof, and Debtor, for itself and all who may claim under
it, insofar as it or they now or hereafter lawfully may, hereby waives
the benefit of all such laws.
VII.13 DISCONTINUANCE OF PROCEEDINGS. In case the Secured Party shall
have instituted any proceeding to enforce any right, power, or remedy under this
Agreement by foreclosure, sale, entry, or otherwise, and such proceeding shall
have been discontinued or
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abandoned for any reason, then and in every such case, Debtor and the Secured
Party shall be returned to their former positions and rights hereunder with
respect to the Collateral subject to the security interest created under this
Agreement, and all rights, remedies, and powers of the Secured Party shall
continue as if no such proceeding had been instituted.
ARTICLE VIII
INDEMNITY
VIII.1 INDEMNITY. (a) DEBTOR AGREES TO INDEMNIFY, REIMBURSE, AND HOLD
THE INDEMNITEES HARMLESS FROM ANY AND ALL LIABILITIES, OBLIGATIONS, LOSSES,
DAMAGES, PENALTIES, CLAIMS, ACTIONS, JUDGMENTS, SUITS, COSTS, EXPENSES, OR
DISBURSEMENTS (INCLUDING REASONABLE ATTORNEYS' FEES AND EXPENSES) (FOR THE
PURPOSES OF THIS SECTION ALL OF THE FOREGOING ARE COLLECTIVELY CALLED
"EXPENSES") OF WHATSOEVER KIND OR NATURE WHICH MAY BE IMPOSED ON, ASSERTED
AGAINST, OR INCURRED BY ANY OF SUCH INDEMNITEES IN ANY WAY RELATING TO OR
ARISING OUT OF THIS AGREEMENT OR THE DOCUMENTS EXECUTED IN CONNECTION HEREWITH
OR IN ANY OTHER WAY CONNECTED WITH THE ADMINISTRATION OF THE TRANSACTIONS
CONTEMPLATED HEREBY OR THE ENFORCEMENT OF ANY OF THE TERMS OF OR THE
PRESERVATION OF ANY RIGHTS HEREUNDER, INCLUDING, WITHOUT LIMITATION, THOSE
ARISING FROM THE NEGLIGENCE, WHETHER SOLE OR CONCURRENT, OF ANY INDEMNITEE;
PROVIDED THAT NO SUCH INDEMNITEE SHALL BE INDEMNIFIED PURSUANT TO THIS SECTION
FOR EXPENSES TO THE EXTENT ARISING FROM THE GROSS NEGLIGENCE OF SUCH INDEMNITEE.
(b) Debtor agrees that upon written notice by any such
Indemnitee of any assertion that could give rise to an Expense, Debtor shall
assume full responsibility for the defense thereof. Without limiting the
application of part (a) of this Section, Debtor agrees to pay or reimburse such
Indemnitee on demand for any and all reasonable fees, costs, and expenses of
whatever kind or nature incurred in connection with the creation, preservation,
or protection of the Secured Party's Liens on, and security interests in, the
Collateral, including, without limitation, all reasonable fees and taxes in
connection with the recording or filing of instruments and documents in public
offices, payment, or discharge of any taxes or Liens or security interests upon
or in respect of the Collateral, premiums for insurance with respect to the
Collateral, all reasonable expenses incurred in the custody, preservation, use,
or operation of the Collateral when Collateral is in the Secured Party's
possession, and all other reasonable fees, costs, and expenses in connection
with protecting, maintaining, or preserving the Collateral and the Secured
Party's interest therein, whether through judicial proceedings or otherwise, or
in defending or prosecuting any actions, suits, or proceedings arising out of or
relating to the Collateral.
(c) Without limiting the application of parts (a) or (b) of this
Section, Debtor agrees to pay, indemnify, and hold each Indemnitee harmless from
and
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against any Expenses which such Indemnitee may suffer, expend, or incur in
consequence of or growing out of any misrepresentation by any Debtor in this
Agreement or in any statement or writing contemplated by or made or delivered
pursuant to or in connection with this Agreement.
(d) If and to the extent that the obligations of Debtor under
this Section are unenforceable for any reason, Debtor hereby agrees to make the
maximum contribution to the payment and satisfaction of such obligations which
is permissible under applicable law.
VIII.2 INDEMNITY OBLIGATIONS SECURED BY COLLATERAL; SURVIVAL. Any
amounts paid by any Indemnitee as to which such Indemnitee has the right to
reimbursement shall constitute Secured Obligations secured by the Collateral.
The indemnity obligations of the Debtor contained in this Article VIII shall
continue in full force and effect notwithstanding the full payment and
performance of the Secured Obligations and the termination of this Agreement.
ARTICLE IX
MISCELLANEOUS
IX.1 NO WAIVER; REMEDIES CUMULATIVE. No failure or delay on the part
of the Secured Party in exercising any right, power, or privilege hereunder and
no course of dealing between any Debtor and the Secured Party shall operate as a
waiver thereof; nor shall any single or partial exercise of any right, power, or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, power, or privilege. A waiver by the Secured Party
of any right or remedy hereunder on any one occasion shall not be construed as a
bar to any right or remedy which the Secured Party would otherwise have on any
future occasion. The rights and remedies herein expressly provided are
cumulative, may be exercised singly or concurrently and as often and in such
order as the Secured Party deems expedient, and are not exclusive of any rights
or remedies which the Secured Party would otherwise have whether by agreement or
now or hereafter existing under applicable law. No notice to or demand on
Debtor in any case shall entitle Debtor to any other or further notice or demand
in similar or other circumstances or constitute a waiver of the rights of the
Secured Party to any other or further action in any circumstances without notice
or demand.
IX.2 TERMINATION; RELEASE. When the Secured Obligations have been
indefeasibly paid and performed in full and the Commitment has terminated, this
Agreement shall terminate, and the Secured Party, at the request and sole
expense of Debtor, will execute and deliver to Debtor the proper instruments
(including Uniform Commercial Code termination statements) acknowledging the
termination of this Agreement, and will duly assign, transfer, and deliver to
Debtor, without recourse, representation, or warranty of any kind whatsoever,
such of the Collateral as may be in possession of the Secured Party and has not
theretofore been disposed of, applied, or released.
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IX.3 COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument.
IX.4 MARSHALLING. The Secured Party shall not be under any obligation
to xxxxxxxx any assets in favor of Debtor or any other Person or against or in
payment of any or all of the Secured Obligations.
IX.5 SEVERABILITY. In case any provision in or obligation under this
Agreement or the Secured Obligations shall be invalid, illegal, or unenforceable
in any jurisdiction, the validity, legality, and enforceability of the remaining
provisions or obligations, or of such provision or obligation in any other
jurisdiction, shall not in any way be affected or impaired thereby.
IX.6 FINANCING STATEMENT FILING. A photocopy or other reproduction of
this Agreement shall be sufficient as a financing statement and may be filed in
lieu of the original to the extent permitted by applicable law.
IX.7 NOTICES AND OTHER COMMUNICATIONS. Except as to oral notices
expressly authorized herein, all notices, requests, and communications under
this Agreement shall be in writing (including by telecopy). Unless otherwise
expressly provided herein, any such notice, request, or communication shall be
deemed to have been duly given or made when provided in accordance with the
terms of the Credit Agreement.
IX.8 PARTIES IN INTEREST. This Agreement shall be binding upon and
inure to the benefit of Debtor, the Secured Party, and their respective legal
representatives, successors, and assigns. No other Person shall have any right,
benefit, priority, or interest hereunder or as a result hereof or have standing
to require satisfaction of provisions hereof in accordance with their terms, and
any or all of such provisions may be freely waived in whole or in part by the
Secured Party at any time if the Secured Party in its sole discretion deems it
advisable to do so.
IX.9 AMENDMENTS. Neither this Agreement nor any provision hereof may
be amended, supplemented, modified, discharged, or terminated orally, but only
by an instrument in writing signed by the party against whom enforcement of the
amendment, supplement, modification, discharge, or termination is sought.
IX.10 ENTIRE AGREEMENT. THIS AGREEMENT CONSTITUTES THE ENTIRE
AGREEMENT BETWEEN THE PARTIES HERETO WITH RESPECT TO THE SUBJECT HEREOF AND
SHALL SUPERSEDE ANY PRIOR AGREEMENTS, WHETHER WRITTEN OR ORAL, BETWEEN THE
PARTIES HERETO RELATING TO THE SUBJECT HEREOF. FURTHERMORE, IN THIS REGARD,
THIS AGREEMENT AND THE OTHER WRITTEN LOAN DOCUMENTS REPRESENT, COLLECTIVELY, THE
FINAL AGREEMENT AMONG THE PARTIES THERETO
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AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT
ORAL AGREEMENTS OF SUCH PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG
SUCH PARTIES.
IX.11 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS (WITHOUT GIVING EFFECT TO
PRINCIPLES THEREOF RELATING TO CONFLICTS OF LAWS).
IX.12 JURISDICTION AND VENUE. ALL ACTIONS OR PROCEEDINGS WITH RESPECT
TO, ARISING DIRECTLY OR INDIRECTLY IN CONNECTION WITH, OUT OF, RELATED TO OR
FROM THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT TO WHICH ANY DEBTOR IS A PARTY
MAY BE LITIGATED, AT THE SOLE DISCRETION AND ELECTION OF THE SECURED PARTY, IN
COURTS HAVING SITUS IN HOUSTON, XXXXXX COUNTY, TEXAS. DEBTOR HEREBY SUBMITS TO
THE JURISDICTION OF ANY LOCAL, STATE, OR FEDERAL COURT LOCATED IN HOUSTON,
XXXXXX COUNTY, TEXAS, AND HEREBY WAIVES ANY RIGHTS IT MAY HAVE TO TRANSFER OR
CHANGE THE JURISDICTION OR VENUE OF ANY LITIGATION BROUGHT AGAINST IT BY THE
SECURED PARTY IN ACCORDANCE WITH THIS SECTION.
IN WITNESS WHEREOF, this Agreement is executed as of the date first
above written.
DEBTOR:
------
EDGE PETROLEUM CORPORATION
By: /s/ Xxxxxxx X. Xxxx
-------------------------------------
Xxxxxxx X. Xxxx
Chief Financial Officer
EDGE PETROLEUM EXPLORATION
COMPANY
By: /s/ Xxxxxxx X. Xxxx
-------------------------------------
Xxxxxxx X. Xxxx
Chief Financial Officer
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SECURED PARTY:
-------------
COMPASS BANK, AGENT
By: /s/ Xxxxxxx Xxxxxx
-------------------------------------
Xxxxxxx Xxxxxx
Vice President
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EXHIBIT A
Section 3.1: FILING LOCATIONS
Secretary of State of Texas.
A-i
