SECURITY AGREEMENT
Exhibit 10.10
As used
in this Security Agreement, the following underlined terms shall have the
respective meanings as indicated, unless the context otherwise
requires:
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Debtor:
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VERTEX
ENERGY, INC., a Nevada corporation
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Debtor's Mailing Address:
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0000
Xxxxxx, Xxxxx 000, Xxxxxxx, XX 00000
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Secured Party:
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REGIONS
BANK
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Secured Party's Mailing
Address:
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0000
Xxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxx
00000
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Notes:
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Date:
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Of
even date herewith
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Amounts:
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$3,500,000.00
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$1,600,000.00
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Borrower:
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VERTEX
ENERGY, INC., a Nevada corporation
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Payee:
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REGIONS
BANK
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Final Maturity Date:
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As
specified in the Notes
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Location of Collateral:
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0000
Xxxxxx, Xxxxxx Xxxxxxxx, Xxxxxxx, Xxxxxx Xxxxxx, Xxxxx 00000
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ARTICLE I
SECURITY
INTEREST
1.1 Collateral. For value
received, Debtor hereby grants to Secured Party a security interest in and
agrees and acknowledges that Secured Party has and shall continue to have a
security interest in the following described property:
A. Accounts. All of
Debtor's accounts (as such term is defined in the Chapter 9 of the Texas
Business and Commerce Code (the "Code") now owned or existing, as well as any
and all that may hereafter arise or be acquired by Debtor, and all the proceeds
and products thereof, including without limitation, all notes, drafts,
acceptances, instruments and chattel paper arising therefrom, and all returned
or repossessed goods arising from or relating to any such accounts, or other
proceeds of any sale or other disposition of inventory or other property of
Debtor.
B. Inventory. All of
Debtor's inventory (as such term is defined in Chapter 9 of the Code), including
all goods, merchandise, raw materials, goods in process, finished goods and
other tangible personal property, wheresoever located, now owned or hereafter
acquired and held for sale or lease or furnished or to be furnished under
contracts for service or used or consumed in Debtor's business and all additions
and accessions thereto and contracts with respect thereto and all documents of
title evidencing or representing any part thereof, and all products and proceeds
thereof.
C. Fixtures. All
of Debtor's fixtures (as such term is defined in Chapter 9 of the Code) and
appurtenances thereto, and such other goods, chattels, equipment, and personal
property affixed or in any manner attached to the real estate and/or
building(s), including all
additions, accessions thereto, replacements thereof, and
articles in substitution therefor, howsoever attached or
affixed, located at the Collateral Location stated above.
D. Equipment. All
of Debtor's equipment (as such term is defined in Chapter 9 of the Code) of
every nature and description whatsoever, now owned or hereafter acquired by
Debtor, all appurtenances and additions thereto and substitutions therefor,
wheresoever located, together with all tools, parts, and accessories used in
connection therewith.
E. General Intangibles.
All of Debtor's general intangibles (as such term is defined in Chapter 9 of the
Code) and other personal property now owned or hereafter acquired by Debtor
including, without limitation, the following: all goodwill, trademarks, trade
names, corporate names, company names, business names, fictitious business
names, trade styles, service marks, logos, other source and business identifying
marks, patents and copyrights, all registrations and applications for
registration for any of the foregoing, all renewals, extensions and
continuations in part of the above, any written agreement granting any right to
use any of the foregoing, the right to xxx for past, present and future
infringements of the foregoing, all other intellectual property rights of any
kind, and all computer software, computer programs, licenses, printouts and
other computer materials.
F. Investment
Property. All of Debtor's investment property (as
such term is defined in Chapter 9 of Code), and all proceeds
thereof.
G. Certificates of
Deposit. Each Certificate of Deposit issued by
Lender to Borrower and described on Exhibit "A" hereto, together with any
certificate of deposit issued in renewal,
exchange or substitution therefor (the "Certificates of Deposit"), and all
proceeds of any of the foregoing.
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The term
"Collateral" as used in this Security Agreement shall mean and include, and the
security interest, pledge, and/or assignment as applicable granted herein, shall
cover, all of the foregoing property, as well as (i) all of Debtor's corporate
and other business books, reports, memoranda, customer lists, credit files, data
compilations, and computer software, in any form, including, without limitation,
whether on tape, disk, card, strip, cartridge, or any other form, pertaining to
any and all of the foregoing property, and (ii) any accessions, additions and
attachments thereto and the proceeds and products thereof, including without
limitation, all cash, general intangibles, accounts, inventory, equipment,
fixtures, farm products, notes, drafts, acceptances, securities, instruments,
chattel paper, insurance proceeds payable because of loss or damage, or other
property, benefits or rights arising therefrom, and in and to all returned or
repossessed goods arising from or relating to any of the property described
herein or other proceeds of any sale or other disposition of such
property.
1.2 Limited License.
Without limiting the security interest granted hereby, Debtor hereby grants to
Secured Party a limited license in Debtor's assignable trade names, trademarks,
and service marks, together with Debtor's goodwill associated with such
tradenames, trademarks, and service marks, for purposes of allowing Secured
Party to use the same in connection with any foreclosure sale or any other
disposition pursuant to the Code or this Security Agreement.
ARTICLE
II OBLIGATIONS
SECURED
2.1 Obligations. The
security interest granted hereby is to secure full, prompt and complete payment
as and when the same becomes due and payable on the following (collectively, the
"Obligations"):
A. The
Notes, together with all modifications, renewals,
rearrangements and extensions thereof;
B. All
obligations of Debtor to Secured Party pursuant to loans or leases entered into
under the $500,000.00 Equipment Guidance Line (as such term is defined in that
certain Letter Loan Agreement of even date herewith between Debtor and Secured
Party (the "Loan Agreement"));
C. All
other obligations of Debtor to Secured Party under or described in the Loan
Agreement or any of the other Loan Documents defined therein;
D. All
funds hereafter advanced by Secured Party to or for the benefit of Debtor, as
contemplated by any covenant or provision herein contained;
and
E. All
other indebtedness, of whatever kind or character, presently owing or which may
hereafter become owing by Debtor and/or Borrower to Secured Party, whether such
indebtedness is secured or unsecured, direct or indirect, fixed or contingent,
primary or secondary, joint or several or both, and whether evidenced by
promissory note, open account, overdraft, endorsement, security agreement,
guaranty, or otherwise, including, but not limited to, any and all of the
Borrower's obligations under or in connection with existing or future Swap
Agreements (as defined in 11 U.S.C. § 101, as in effect from time to time) with
Lender or any of its affiliates.
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ARTICLE
III REPRESENTATIONS
AND WARRANTIES OF DEBTOR
3.1 Ownership. Except for
the security interest granted hereby, Debtor warrants that Debtor is the owner
of the Collateral free of any adverse claim, security interest or encumbrance.
Debtor agrees to defend the Collateral against all claims and demands of all
persons at any time claiming the same or interest therein.
3.2 No Other Liens:
Authority. There is no lien, security interest or other
encumbrance on the Collateral at the time of the execution of this Security
Agreement, except as previously disclosed in writing to Secured
Party. Debtor owns the Collateral and has the full right and
authority to transfer the full legal interest therein to Secured
Party.
3.3 Debtor's Principal Place of
Business. Debtor's principal place of business and executive offices are
located at Debtor's Mailing Address.
3.4 All Information
Correct. All information contained herein and the statements
furnished to Secured Party by a party by or on behalf of Debtor in connection
with Obligations secured by this Security Agreement are complete and
accurate.
ARTICLE
IV AFFIRMATIVE
COVENANTS AND AGREEMENTS OF DEBTOR
4.1 Operation and Condition of
Collateral. Debtor agrees to maintain and use the Collateral solely in
the conduct of its own business, in a careful and proper manner, and in
conformity with all applicable permits and licenses. Debtor shall maintain,
service and repair the Collateral so as to keep it in good operating condition.
Debtor shall replace within a reasonable time all pads that may be worn out,
lost, destroyed or otherwise rendered unfit for use, with the appropriate
replacement parts.
4.2 Filing. Debtor
authorizes Secured Party to file, in jurisdictions where this authorization will
be given effect, a Financing Statement covering the Collateral. Debtor will pay
the cost of filing the same or in filing or recording this Security Agreement in
all public offices wherever filing or recording is deemed by Secured Party to be
necessary or desirable, it being further stipulated in this regard that Secured
Party may also, at any time or times, file any counterpart of this Security
Agreement signed by Debtor as a financing statement if Secured Party shall elect
to do so.
4.3 Alienation. Except as
otherwise provided in this Agreement, Debtor will not sell or offer to sell or
otherwise transfer or encumber the Collateral or any interest therein without
the written consent of Secured Party.
4.4 No Removal. Except as
otherwise provided in this Agreement, Debtor shall not remove the Collateral
from the Collateral Location(s) stated above, without Secured Party's prior
written consent.
4.5 Inspection. Debtor
shall at all reasonable times allow Secured Party by or through any of its
officers, agents, attorneys or accountants, to examine the Collateral, wherever
located, and to examine and make extracts from Debtor's books and
records.
4.6 Insurance. Debtor
shall have and maintain insurance at all times with respect to all tangible
Collateral insuring against risk of fire (including so-called Extended
Coverage), theft and other risk as
Secured Party may require, containing such terms, in such form and amounts and
written by such companies as may be satisfactory to Secured Party, all such
insurance to contain loss payable clauses in favor of Secured Party as its
interest may appear. All policies of insurance shall provide for 10 days written
minimum cancellation notice to Secured Party and at the request of Secured Party
shall be delivered to and held by it. Secured Party is hereby authorized to act
as attorney for Debtor in obtaining, adjusting, settling, and canceling such
insurance and endorsing any drafts or instruments. In the event of a loss
covered by the policies of insurance, provided Debtor is not in default under
the terms of this Security Agreement, the proceeds of the insurance policies
will be applied first to the reimbursement of all costs and expenses incurred by
Secured Party and Debtor in connection with such casualty and the balance, to
the replacement or restoration of the Collateral. Debtor specifically authorizes
Secured Party to disclose information from the policies of insurance to
prospective insurers regarding the Collateral.
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4.7 Other Liens. Debtor
will keep the Collateral free from any and all adverse liens, security interests
and encumbrances.
4.8 Landlord's
Waiver. Debtor shall furnish to Secured Party, if
requested, a landlord's waiver of all liens with respect to any Collateral
covered by this Security Agreement that is or may be located upon leased
premises, such landlord waiver is to be in such form and upon such terms as are
acceptable to Secured Party.
4.9 Expenses. Debtor will
pay to Secured Party, on demand, all expenses and expenditures, including
reasonable attorney's fees and legal expenses, incurred or paid by Secured Party
in exercising or protecting its interest, rights and remedies under this
Security Agreement. Debtor agrees to pay interest on such amounts at the maximum
non-usurious rate of interest permitted by Applicable Law (as defined
below).
4.10 Payment of Taxes and
Fees. Debtor shall promptly pay when due (unless they are being contested
in good faith) all taxes, assessments, costs, expenses and fees necessary to
preserve, protect, maintain, and collect the Collateral; defend the Collateral
against all claims and demands of all persons at any time claiming an interest
therein adverse to Secured Party; and in the event of a failure to do so, Debtor
agrees that Secured Party may make expenditures for any and all such purposes,
and the amount so expended together with interest thereon at the highest rate
allowed by law shall constitute one of Debtor's Obligations to Secured Party
secured by this Security Agreement.
ARTICLE V
ADDITIONAL PROVISIONS
REGARDING ACCOUNTS
5.1 Additional
Warranties. As of the time any Account becomes subject
to the security interest (or pledge or assignment as applicable) granted hereby,
Debtor shall be deemed further to have warranted as to each and all of such
Accounts as follows: (i) each Account and all papers and documents relating
thereto are genuine and in all respects what they purport to be; (ii) each
Account is valid and subsisting and arises out of a bona fide sale of goods sold
and delivered to, or out of and for services theretofore actually rendered by
Debtor to, the Account debtor named in the Account; (iii) the amount of the
Account represented as owing is the correct amount actually and unconditionally
owing except for normal cash discounts and is not subject to any setoffs,
credits, defenses, deductions or countercharges; and (iv) Debtor is the owner
thereof free and clear of any charges, liens, security interests, adverse claims
and encumbrances of any and every nature whatsoever.
5.2 Collection of
Accounts. Secured Party shall have the right in its own
name or in the name of Debtor, whether before or after default, to require
Debtor forthwith to transmit all proceeds of collection
on all Accounts to Secured Party, to notify any and all Account debtors to make
payments of the Accounts directly to Secured Party, to demand, collect, receive,
receipt for, xxx for, compound and give acquittal for, any and all amounts due
or to become due on the Accounts and to endorse the name of Debtor on all
commercial paper given in payment or part payment thereof, and in Secured
Party's discretion to file any claim or take any other action or proceeding that
Secured Party may deem necessary or appropriate to protect and preserve and
realize upon the Accounts and related Collateral. Unless and until Secured Party
elects to collect Accounts, and the privilege of Debtor to collect Accounts is
revoked by Secured Party in writing, Debtor shall continue to collect Accounts,
for same to Secured Party and shall not commingle the proceeds of collection of
Accounts with any funds of Debtor. In order to assure collection of Accounts in
which Secured Party has a security interest (or pledge or assignment of as
applicable) hereunder, Secured Party may notify the post office authorities to
change the address for delivery of mail addressed to Debtor to such address as
Secured Party may designate, and to open and dispose of such mail and receive
the collections of Accounts included herewith. Secured Party shall have no duty
or obligation whatsoever to collect any Account, or to take any other action to
preserve or protect the Collateral; however, should Secured Party elect to
collect any Account or take possession of any Collateral, Debtor releases
Secured Party from any claim or claims for loss or damage arising from any act
or omission therewith.
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5.3 Identification and
Assignment of Accounts. Upon Secured Party's
request, whether before or after default, Debtor shall take such action and
execute and deliver such documents as Secured Party may reasonably request in
order to identify, confirm, xxxx, segregate and assign Accounts and to evidence
Secured Party's interest in same. Without limitation of the
foregoing, Debtor, upon request, agrees to assign Accounts to Secured Party,
identify and xxxx Accounts as being subject to the security interest (or pledge
or assignment as applicable) granted hereby, xxxx Debtor's books and records to
reflect such assignments, and forthwith to transmit to Secured Party in the form
as received by Debtor any and all proceeds of collection of such
Accounts.
5.4 Account Reports. If
requested by Secured Party, Debtor will deliver to Secured Party, a written
report in form and content satisfactory to Secured Party, showing a listing and
aging of Accounts and such other information as Secured Party may request from
time to time. Debtor shall immediately notify Secured Party of the
assertion by any Account debtor of any setoff, defense or claim regarding an
Account or any other matter adversely affecting an Account.
5.5 Segregation of Returned
Goods. Returned or repossessed goods arising from or relating to any
Accounts included within the Collateral shall, if requested by Secured Party, be
held separate and apart from any other property. Debtor shall as often as
requested by Secured Party, but not less often than weekly even though no
special request has been made, report to Secured Party the appropriate
identifying information with respect to any such returned or repossessed goods
relating to Accounts included in assignments or identifications made pursuant
hereto.
ARTICLE
VI ADDITIONAL
PROVISIONS REGARDING INVENTORY
6.1
Inventory
Reports. If requested by Secured Party, Debtor will deliver to Secured
Party, a written report in a form and content satisfactory to Secured Party,
with respect to the preceding month or other applicable period, showing
..Debtor's opening Inventory acquired, Inventory sold, Inventory returned,
Inventory used in Debtor's business, closing Inventory, any other Inventory not
within the preceding categories, and such other information as Secured Party may
request from time to time. Debtor shall immediately notify Secured Party of any
matter adversely affecting the Inventory, including, without limitation,
any event causing loss or depreciation in the value of the Inventory and the
amount of such possible loss or depreciation.
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6.2 Location of
Inventory. Debtor will promptly notify Secured Party in
writing of any addition to, change in or discontinuance of its place(s) of
business as shown in this Security Agreement, the places at which Inventory is
located as shown herein, the location of its chief executive office and the
location of the office where it keeps its records as set forth herein. All
Collateral will be located at the Collateral Location(s), as modified by any
written notice given pursuant hereto.
6.3 Use of
Inventory. Unless and until the privilege of Debtor to
use Inventory in the ordinary course of Debtor's business is revoked by Secured
Party in the event of default, Debtor may use the Inventory in any manner not
inconsistent with this Security Agreement, may sell that part of the Collateral
consisting of Inventory provided that all such sales are in the ordinary course
of business, and may use and consume any raw materials or supplies that are
necessary in order to carry on Debtor's business. A sale
in the ordinary course of business does not include a transfer in partial or
total satisfaction of a debt.
6.4 Accounts as
Proceeds. All Accounts that are proceeds of the Inventory
included within the Collateral shall be subject to all of the terms and
provisions hereof pertaining to Accounts.
6.5 Protection of
Inventory. Debtor shall take all action necessary to protect and preserve
the Inventory.
ARTICLE
VII EVENTS OF DEFAULT
AND REMEDIES
7.1 Event of
Default. Debtor shall be in default under this Security
Agreement upon the happening of an Event of Default under and as defined in the
Loan Agreement.
7.2 Remedies and Rights.
Upon the occurrence of any Event of Default, Secured Party may take any one or
more of the following actions:
A. Any
or all of the Obligations shall become immediately due and payable without
presentment, demand, notice of intention to accelerate, notice of acceleration,
notice of non payment, protest, notice of dishonor, or any other notice
whatsoever to Debtor, all of which are hereby expressly waived by Debtor, or any
other person obligated thereon, and Secured Party shall have and may exercise,
with reference to the Collateral and Obligations, any and all of the rights and
remedies of a secured party under the Code, and as otherwise granted herein or
under any other Applicable Law or under any other agreement executed by Debtor
(all of which rights and remedies shall be cumulative).
B. With
regard to that portion of the Collateral consisting of cash or cash equivalent
items (i.e., checks or other items convertible at face) Secured Party may
immediately apply them against the Obligations, and for this purpose, Debtor
agrees that such items will be considered identical in character to cash
proceeds.
C. Secured
Party will have the right immediately and without further action by it to
set-off against the Obligations the Certificates of Deposit and all other money
owed by Secured Party in any capacity to Debtor, including any such sums owed
under property that is included in the Collateral, such as certificates of
deposit or demand, savings or passbook accounts, whether or not
due, and Secured Party will be deemed to have exercised such right of set off
and to have made a charge against any such money at the time of any acceleration
upon default even though such charge is made or entered on Secured Party's books
subsequent thereto.
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D. As
regards to that portion of the Collateral other than cash or cash equivalent
items, unless such portion is perishable or threatens to decline speedily in
value or is of the type customarily sold in a recognized market, Secured Party
shall have, without limitation, the right and power to sell, at public or
private sale or sales, or otherwise dispose of or utilize the Collateral and any
part or parts thereof in any manner authorized or permitted under this Security
Agreement or under the Code and to apply the proceeds thereof toward payment of
any costs, expenses, and legal expenses thereby incurred by Secured Party and
toward payment of the Obligations, in such order or manner as Secured Party may
elect. To the extent permitted by law, Debtor expressly waives any notice of
sale or other disposition of the Collateral and any other rights or remedies of
Debtor or formalities prescribed by law relative to sale or disposition of the
Collateral or exercise of any other right or remedy of Secured Party existing
after default hereunder; and, to the extent any such notice is required and
cannot be waived, Debtor agrees that if such notice is given as provided below
at least ten (10) days before the time of the sale or disposition, such notice
shall be deemed reasonable and shall fully satisfy any requirement for giving of
notice. Specifically, Debtor agrees that Secured Party shall have the
right to sell the Collateral at public or private sale to the highest bidder for
cash and Secured Party shall transfer to the Purchaser at such sale the
Collateral, together with all liens, rights, titles, equities and interests in
and to the Collateral and their recitals in such transfer shall be prima facie
evidence of the truth of the matters therein stated and all prerequisites to
such sale required hereunder and under the laws of this state shall be presumed
to have been performed. Secured Party shall have the right to purchase at any
public sale or sales, being the highest bidder therefor, for credit against the
Obligations. In the event the Collateral is sold at a public
sale pursuant to the provisions hereof, Debtor expressly agrees that the sale
will be conclusively deemed to have been conducted in a "commercially reasonable
manner", as that term is used in the Code. All of the collections or
proceeds from the sale or disposition of the Collateral will be applied by
Secured Party, first to the payment of the expenses of said sale or disposition,
including reasonable attorney's fees, if any, and then to the due payment of the
principal, interest and attorney's fees due and unpaid upon the Obligations,
rendering the balance, if any, and surplus, if any, to the person or persons
legally entitled thereto under the Code, but if there be any deficiency, Debtor
shall remain liable therefor.
E. Secured
Party may, at its option, demand, xxx for, collect or make any compromise or
settlement Secured Party deems desirable with reference to the Collateral.
Secured Party shall not be obligated to take any steps necessary to preserve any
rights in the Collateral against prior parties all which shall be the
responsibility of Debtor.
ARTICLE
VIII MISCELLANEOUS
8.1 Waiver. No
delay or omission on the part of Secured Party in exercising any rights ereunder
shall operate as a waiver of any such right or any other right. A
waiver on any one or more ccasions shall not be construed as a bar to or waiver
of any right or remedy on any future occasion.
8.2 Applicable
Law. The law of the State of Texas and the United States (the
"Applicable
aw") shall apply to this Security Agreement and its construction and
interpretation shall be enforceable in the
county of the Location of Collateral. As used herein, the term "Code" shall
include any amendment to the Code that becomes effective after the date of
execution hereof.
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8.3 Interest Rate. It is
the intention of the parties hereto to comply with the Applicable Law.
Accordingly, it is agreed that notwithstanding any provisions to the contrary in
the Notes, any instrument evidencing the Obligations, or in any of the documents
or instruments securing payment of the Obligations or otherwise relating
thereto, in no event shall the Notes or such documents require the payment or
permit the collection of interest in excess of the maximum amount permitted by
such Applicable Law. If any such excess of interest is contracted for, charged
or received, under the Notes or any instrument evidencing the Obligations, under
this Security Agreement or under the terms of any of the other documents
securing payment of the Obligations or otherwise relating thereto, or if the
maturity of any of the Obligations is accelerated in whole or in part, or if all
or part of the principal or interest of the Obligations shall be prepaid, so
that under any of such circumstances, the amount of interest contracted for,
charged or received, under the Notes or any instruments evidencing the
Obligations, under this Security Agreement or under any of the instrument
securing payment of the Obligations or otherwise relating thereto, on the amount
of principal actually outstanding from time to time under the Notes and other
instruments evidencing the Obligations shall exceed the maximum amount of
interest permitted by applicable usury laws, then in any such event (a) the
provisions of this paragraph shall govern and control, (b) neither Debtor nor
any other person or entity now or hereafter liable for the payment of the Notes
or any instrument evidencing the Obligations, shall be obligated to pay the
amount of such interest to the extent that it is in excess of the maximum amount
of interest permitted by applicable usury laws; (c) any such excess that may
have been collected shall be either applied as a credit against the then unpaid
principal amount of the Notes or refunded to Debtor, at Secured Party's option
and (d) the effective rate of interest shall be automatically reduced to the
maximum non- usurious rate allowed under Applicable Law as now or hereafter
construed by the courts having jurisdiction thereof. It is further
agreed that without limitation of the foregoing, all calculations of the rate of
interest contracted for, charged or received under the Notes, or any instrument
evidencing the Obligations, under this Security Agreement or under such other
documents that are made for the purpose of determining whether such rate exceeds
the maximum non-usurious applicable rate, shall be made, to the extent
permitted, by amortizing, prorating, allocating and spreading in equal parts
during the period of the full stated term of the loans evidenced by the Notes or
the instruments evidencing the Obligations, all interest at any time contracted
for, charged or received from Debtor or otherwise by the holder or holders
hereof in connection with such loans or Obligations.
8.4 Binding
Effect. All rights of Secured Party hereunder
shall inure to the benefit of Secured Party's successors and assigns; and all
Obligations of Debtor shall bind Debtor's heirs, executors, administrators,
successors and/or assigns. If this Security Agreement is
executed by more than one Debtor, the Obligations of each party constituting
Debtor, shall be joint and several.
8.5 Cumulative Rights.
The rights and remedies of Secured Party hereunder are cumulative, and the
exercise of any one or more of the remedies provided herein shall not be
construed as a waiver of any of the other remedies of Secured
Party.
8.6 Notice. Except
as otherwise provided herein, all notices, demands, requests, and other
communications required or permitted hereunder shall be given in writing and
sent by (a) personal delivery, or (b) expedited delivery service with proof of
delivery, or (c) United States mail, postage prepaid, registered or certified
mail, return receipt requested, or (d) facsimile (provided that such facsimile
is confirmed by expedited delivery service or by United States mail in the
manner previously described), addressed to the addressee at such party's address
set forth herein, or to such other address as such party may specify by written
notice, sent in accordance with this paragraph at least 30 days prior to the
date of the giving of such notice. Any such notice or communication shall be
deemed to have been given and received either at the time of personal delivery,
or in the case of mail, as of 3 days following deposit
in an official depository of the United States mail, or in the case of either
delivery service, or facsimile, upon receipt. To the extent actual receipt is
required, rejection or other refusal to accept or the inability to deliver
because of changed address of which no notice was received shall be deemed to be
receipt of the notice, demand, request or other communication
sent.
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8.7 Termination. The
security interest hereby granted and all the terms and provisions hereof shall
be deemed a continuing security agreement and shall continue in full force and
effect, and all the terms and provisions hereof shall remain effective until the
repayment of all Obligations secured hereby and the specific release hereof by
Secured Party.
8.8 Prior
Agreements. This Security Agreement and the security interest
herein granted are in addition to, and not in substitution, novation or
discharge of, any and all prior or contemporaneous security agreements and
security interests in favor of Secured Party or assigned to Secured Party by
others. All rights, powers and remedies of Secured Party in all such security
agreements are cumulative, but in the event of actual conflict in terms and
conditions, the terms and conditions of the latest security agreement shall
govern and control.
8.9 Invalidity. Any
provision found to be invalid under Applicable Law shall be invalid only with
respect to the offending provision.
IN
WITNESS WHEREOF, the undersigned have/has duly executed this Security Agreement
as of the date(s) of the acknowledgments) set forth below, to be effective for
all purposes, however, as of the date first above written.
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DEBTOR:
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VERTEX
ENERGY, INC.
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By:
/s/ Xxxxxxxx X.
Xxxxxx
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Xxxxxxxx
X. Xxxxxx,
President
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EXHIBIT "A" Certificates of Deposit
[TO
COME]
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