EXHIBIT 10.2
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SECURITY AGREEMENT
(Stock)
THIS SECURITY AGREEMENT ("Agreement") dated as of July 29,
2005, is made between GMX RESOURCES INC., an Oklahoma corporation ("Borrower")
and HIBERNIA NATIONAL BANK ("Lender"), who agree as follows:
RECITALS
A. The Borrower is or will be indebted unto the Lender for
loans made or to be made pursuant to the terms of a loan agreement (as amended,
supplemented or restated from time to time, the "Loan Agreement") dated as of
July 29, 2005, by and between the Borrower and the Lender.
B. In order to secure the full and punctual payment and
performance of the Indebtedness 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 Lender agree as follows:
Section 1. Definitions. (A) As used in this Agreement, the
terms "Agreement", "Borrower", "Lender" and "Loan Agreement" shall have the
meanings indicated above.
(B) As used in this Agreement, the terms "Event of Default",
"Indebtedness" and "Person" have the respective meanings defined in the Loan
Agreement.
(C) As used in this Agreement, the terms "Collateral,"
"Endeavor", and "Subsidiary" shall have the meanings indicated in Section 2
below.
Section 2. Security Interest. (A) To secure the full and
punctual payment and performance of all present and future Indebtedness to the
Lender 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, or under
or pursuant to any present or future hedging or derivative agreements relating
to interest rates, currency exchange rates or commodity prices (such as any swap
agreement, any cap, collar, floor, exchange or forward transaction, any option,
or other similar transaction), the Borrower hereby pledges, pawns, transfers and
grants to the Lender 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"):
1,000 shares of the common stock of Endeavor Pipeline Inc., an Oklahoma
corporation ("Endeavor") represented by Certificate No. 1, dated April
9, 1998, registered in the Borrower's name, together with any
additional shares of Endeavor issued hereafter as stock dividends,
stock splits or otherwise, or shares received as a result of any merger
or consolidation of Endeavor, all rights of any nature whatsoever which
may be issued or granted by Endeavor to the Borrower, all right, title
and interest of the Borrower as a shareholder of Endeavor including
without limitation the right to vote, all certificates and instruments
representing or evidencing all such shares and rights, all cash,
liquidation and other dividends now or hereafter declared thereon, all
stock redemption payments and all other monies due or to become due
thereunder, all stock warrants and other rights to subscribe to
securities now or hereafter incident thereto or declared or granted in
connection therewith, and all distributions (cash or property) made or
to be made in connection therewith or incident thereto, and together
with all proceeds of all or any of the foregoing, in whatever form.
Endeavor is hereinafter sometimes referred to collectively as the "Subsidiary".
(C) The security interests are granted as security only and
shall not subject the Lender 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 Lender hereby accepts
the delivery of the Collateral on behalf of itself and on behalf of any future
transferee of the Indebtedness. The Borrower will execute and deliver to the
Lender all assignments, endorsements, powers and other documents reasonably
requested at any time and from time to time by the Lender with respect to the
Collateral and the rights and powers granted to the Lender hereunder, and will
deliver to the Lender any stock certificates representing stock dividends on, or
stock splits of, any of the Collateral.
Section 4. Representations. (A) The Borrower has not performed
any acts or signed any agreements which might prevent the Lender from enforcing
any of the terms of this Agreement or which would limit the Lender 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 Lender or its designee may have possession of
Collateral as contemplated hereby.
(B) The certificated securities evidencing the Collateral are
each owned legally, directly and beneficially and of record by the Borrower, and
each is not subject to any interest, option or right of any Person. The
Collateral constitutes all of the interest that the Borrower owns in the
Subsidiary, which as of the date of this Agreement is one hundred (100%) percent
of the stock issued by the Subsidiary. The Borrower has delivered a complete and
accurate copy of the Subsidiary's articles of incorporation and bylaws to the
Lender.
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Section 5. Covenants. (A) The Borrower agrees not to sell,
offer to sell, transfer or otherwise dispose of any of the Collateral or any
interest therein, and not to create, incur or permit to exist any pledge,
security interest, lien, charge, encumbrance, restriction on transfer, right to
purchase, option, right of first refusal or other impediment to title whatsoever
with respect to any of the Collateral, other than this Agreement.
(B) The Borrower will not amend or agree to amend any
Subsidiary's articles of incorporation or bylaws, or otherwise enter into any
further agreement pertaining to any of the Collateral. The Borrower will not
consent to or permit the issuance to any Person of any additional shares in any
Subsidiary.
Section 6. Voting Rights. (A) So long as no Event of Default
as defined in the Loan Agreement shall have occurred, the Borrower shall have
the right, from time to time, to exercise voting and other consensual rights to
give approvals, ratifications and waivers pertaining to the Collateral, and the
Lender upon receiving a written request from the Borrower accompanied by a
certificate stating that no Event of Default has occurred will deliver to the
Borrower (or as specified in such request) such proxies, approvals,
ratifications, waivers and other instruments pertaining to the Collateral as may
be specified in such request and be in form and substance satisfactory to the
Lender.
(B) Upon the occurrence of an Event of Default, the Lender
shall have the right, at Lender's option, to exercise the voting and other
consensual rights to give approvals, ratifications and waivers and to take any
other action with respect to all the Collateral with the same force and effect
as if the Lender were the absolute and sole owner thereof, and the Borrower's
right to exercise such voting and other consensual rights shall, at Lender's
option, cease and become vested in the Lender.
Section 7. Remedies upon Default. (A) Upon the occurrence of
an Event of Default as defined in the Loan Agreement the Lender may exercise all
rights of a secured party under the Louisiana Commercial Laws -- Secured
Transactions and other applicable law (including the Uniform Commercial Code as
in effect in another applicable jurisdiction) and, in addition, the Lender 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 Lender 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
Lender may deem satisfactory. The Lender 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 Lender
deems necessary or advisable in order that any such sale may be made in
compliance with law. Upon any such sale the Lender 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
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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 Lender 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 Lender may determine. The Lender shall
not be obligated to make any such sale pursuant to any such notice. The Lender
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 Lender until the selling price is paid by the purchaser thereof,
but the Lender 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 Lender, 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 Indebtedness and confess judgment in favor
of the Lender for the full amount of the Indebtedness. The Borrower does by
these presents consent, agree and stipulate that upon the occurrence of an Event
of Default it shall be lawful for the Lender, and the Borrower does hereby
authorize the Lender, to cause all and singular the Collateral to be seized and
sold under executory or ordinary process, at the Lender's sole option, without
appraisement, appraisement being hereby expressly waived, in one lot as an
entirety or in separate parcels as the Lender 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 Lender: (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.
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(C) The Borrower recognizes that the Lender may be unable to
effect a public sale of all or part of the Collateral by reason of certain
prohibitions contained in the Securities Act of 1933, as amended, and applicable
state securities laws but may be compelled to resort to one or more private
sales to a restricted group of purchasers who will be obligated to agree, among
other things, to acquire all or a part of the Collateral for their own account,
for investment, and not with a view to the distribution or resale thereof. If
the Lender deems it advisable to do so for the foregoing or for other reasons,
the Lender is authorized to limit the prospective bidders on or purchasers of
any of the Collateral to such a restricted group of purchasers and may cause to
be placed on certificates for any or all of the Collateral a legend to the
effect that such security has not been registered under the Securities Act of
1933, as amended, and may not be disposed of in violation of the provision of
said act, and to impose such other limitations or conditions in connection with
any such sale as the Lender deems necessary or advisable in order to comply with
said act or any other securities or other laws. The Borrower acknowledges and
agrees that any private sale so made may be at prices and on other terms less
favorable to the seller than if such Collateral were sold at public sale and
that the Lender has no obligation to delay the sale of such Collateral for the
period of time necessary to permit the registration of such Collateral for
public sale under any securities laws. The Borrower agrees that a private sale
or sales made under the foregoing circumstances shall be deemed to have been
made in a commercially reasonable manner. If any consent, approval, or
authorization of any federal, state, municipal or other governmental department,
agency or authority should be necessary to effectuate any sale or other
disposition of the Collateral, or any partial sale or other disposition of the
Collateral, the Borrower will execute all applications and other instruments as
may be required in connection with securing any such consent, approval or
authorization and will otherwise use its best efforts to secure same. In
addition, if the Collateral is disposed of pursuant to Rule 144, the Borrower
agrees to complete and execute a Form 144, or comparable successor form, at the
Lender's request; and the Borrower agrees to provide any material adverse
information in regard to the current and prospective operations of any
corporation whose stock constitutes all or a portion of the Collateral of which
the Borrower has knowledge and which has not been publicly disclosed, and the
Borrower hereby acknowledges that the Borrower's failure to provide such
information may result in criminal and/or civil liability.
Section 8. Limitation on Duty of Lender. Beyond the exercise
of reasonable care in the custody thereof, the Lender 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 Lender 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 Lender in good faith. The Lender shall be deemed to have exercised
reasonable care with respect to any of the Collateral in its possession if the
Lender 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.
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Section 9. Appointment of Agent. At any time or times, in
order to comply with any legal requirement in any jurisdiction, the Lender may
appoint a bank or trust company or one or more other Persons with such power and
authority as may be necessary for the effectual operation of the provisions
hereof and may be specified in the instrument of appointment.
Section 10. Expenses. In the event that the Borrower fails to
comply with any provisions of the Loan Agreement or this Agreement, such that
the value of any Collateral or the validity, perfection, rank or value of any
security interest hereunder is thereby diminished or potentially diminished or
put at risk, the Lender may, but shall not be required to, effect such
compliance on behalf of the Borrower, and the Borrower shall reimburse the
Lender for the costs thereof on demand. All insurance expenses and all expenses
of protecting, storing, appraising, preparing for sale, handling, maintaining
and shipping the Collateral, any and all excise, property, sales, and use taxes
imposed by any federal, state or local authority on any of the Collateral, all
expenses in respect of periodic appraisals and inspections of the Collateral to
the extent the same may be requested from time to time, and all expenses in
respect of the sale or other disposition thereof shall be borne and paid by the
Borrower; and if the Borrower fails to promptly pay any portion thereof when
due, the Lender 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 Lender therefor on demand. All sums so paid or incurred by the Lender 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 Lender 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 Indebtedness hereunder and the Borrower agrees to pay all of the
foregoing sums promptly on demand.
Section 11. Termination. Upon the payment in full of the
Indebtedness and the termination of the Loan Agreement, this Agreement shall
terminate. Upon request of the Borrower, the Lender shall deliver the remaining
Collateral (if any) to the Borrower.
Section 12. Notices. Any notice or demand which, by provision
of this Agreement, is required or permitted to be given or served to the
Borrower and the Lender shall be deemed to have been sufficiently given and
served for all purposes if made in accordance with the Loan Agreement.
Section 13. Amendment. Neither this Agreement nor any
provisions hereof may be changed, waived, discharged or terminated orally or in
any manner other than by an instrument in writing signed by the party against
whom enforcement of the change, waiver, discharge or termination is sought.
Section 14. Waivers. No course of dealing on the part of the
Lender, its officers, employees, consultants or agents, nor any failure or delay
by the Lender with respect to exercising any of its rights, powers or privileges
under this Agreement shall operate as a waiver thereof.
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Section 15. Cumulative Rights. The rights and remedies of the
Lender under this Agreement shall be cumulative and the exercise or partial
exercise of any such right or remedy shall not preclude the exercise of any
other right or remedy.
Section 16. Titles of Sections. All titles or headings to
sections of this Agreement are only for the convenience of the parties and shall
not be construed to have any effect or meaning with respect to the other content
of such sections, such other content being controlling as to the agreement
between the parties hereto.
SECTION 17. GOVERNING LAW. THIS AGREEMENT IS A CONTRACT MADE
UNDER AND SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE
UNITED STATES OF AMERICA AND THE STATE OF TEXAS.
Section 18. Successors and Assigns. All covenants and
agreements contained by or on behalf of the Borrower in this Agreement shall
bind Borrower's successors and assigns and shall inure to the benefit of the
Lender and its successors and assigns. This Agreement is for the benefit of the
Lender and for such other Person or Persons as may from time to time become or
be the holders of any of the Indebtedness, and this Agreement shall be
transferable with the same force and effect and to the same extent as the
Indebtedness may be transferable, it being understood that, upon the transfer or
assignment by the Lender of any of the Indebtedness, the legal holder of such
Indebtedness shall have all of the rights granted to the Lender under this
Agreement. Borrower specifically agrees that upon any transfer of all or any
portion of the Indebtedness, the Lender may transfer and deliver the Collateral
to the transferee of such Indebtedness and the Collateral shall secure any and
all of the Indebtedness in favor of such a transferee, that such transfer of the
Collateral shall not affect the priority and ranking thereof, and that the
Collateral shall secure with retroactive rank the then existing Indebtedness of
the Borrower to the transferee and any and all Indebtedness thereafter arising.
After any such transfer has taken place, the Lender shall be fully discharged
from any and all future liability and responsibility to the Borrower with
respect to the Collateral and the transferee thereafter shall be vested with all
the powers, rights and duties with respect to the Collateral.
Section 19. Counterparts. This Agreement may be executed in
two or more counterparts, and it shall not be necessary that the signatures of
all parties hereto be contained on any one counterpart hereof; each counterpart
shall be deemed an original, but all of which when taken together shall
constitute one and the same instrument.
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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
LENDER: HIBERNIA NATIONAL BANK
BY: /s/ H. Xxxxxxx Xxxxxxxx XX
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Name: H. Xxxxxxx Xxxxxxxx XX
Title: Vice President
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