EXHIBIT 10.4
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SECURITY AGREEMENT
(Promissory Note)
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",
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"):
Amended and Restated Revolving Note dated June 7, 2006, by Diamond
Blue Drilling Co. ("Diamond") in the amount of $50,000,000.00
payable to the order of the Borrower, and all proceeds of the
Revolving Note, together with the Security Agreement dated as of
June 7, 2006 (the "Revolving Note"), by Diamond in favor of the
Borrower securing the Revolving Note and all rights, remedies and
benefits under the Security Agreement with respect to the collateral
of Diamond, and all payments (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.
Diamond is hereinafter sometimes referred to collectively as the "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 to the Agent
hereunder.
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 Revolving Note is owned legally, directly and beneficially
by the Borrower, and is not subject to any interest, option or right of any
Person. The Borrower has delivered the complete original of the Diamond Note to
the Agent.
Section 5. Covenants. 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.
Section 6. 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
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(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 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
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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 Agent may exercise all of the rights of the secured party
under the Security Agreement securing the Diamond Note.
Section 7. 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 8. 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 9. 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,
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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.
Section 10. 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 11. 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 12. 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 13. 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 14. 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 15. 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.
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SECTION 16. 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 17. 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 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 18. 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 19. 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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