COMMERCIAL SECURITY AGREEMENT
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Principal
|
Loan
Date
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Maturity
|
Loan
No
|
Call/Coll
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Account
|
Officer
|
Initials
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$241,932.71
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03-04-2008
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03-04-2011
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9002
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4149431
|
792
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References
in the boxes above are for Xxxxxx’s use only and do not limit the applicability
of this document to any particular loan or item.
Any item
above containing ***** has been omitted due to text length
limitations.
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Grantor:
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Labwire,
Inc. (TIN: 00-0000000)
00000
Xxxxxxxx Xxx 0
Xxxxxxx,
Xx 00000
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Lender:
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The
Frost National Bank
Bellaire
Financial Center
PO
Box 0000
Xxx
Xxxxxxx, Xx 00000
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THIS COMMERCIAL SECURITY
AGREEMENT dated March 4, 2008, Is made and executed between LABWlRE, INC.
(“Grantor”) and THE FROST NATIONAL BANK (“Lender”).
GRANT OF SECURITY INTEREST.
For valuable consideration. Grantor grants to Lender II security interest in the
Collateral to secure the Indebtedness and agrees that Xxxxxx shall have the
rights stated in this Agreement with respect to the Collateral. In addition to
all other rights which Lender may have by law.
COLLATERAL DESCRIPTION. The
word “Collateral”·as used in this Agreement means the following described
property. whether now owned or hereafter acquired, whether now existing or
hereafter arising, and wherever located, in which Grantor is giving to Lender a
security interest for the payment of the Indebtedness and performance of all
other obligations under the Note and this Agreement:
All
Accounts
In
addition, the word “Collateral” also includes all the following, whether now
owned or hereafter acquired, whether now existing or hereafter arising, and
wherever located:
(A) All
accessions, attachments, accessories, replacements of and additions to any of
the collateral described herein, whether added now or later.
(B) All
products and produce of any of the property described in this Collateral
section.
(C) All
accounts, general intangibles, instruments, rents, monies, payments, and all
other rights, arising out of a sale, lease, consignment or other disposition of
any of the property described in this Collateral section.
(D) All
proceeds (including insurance proceeds) from the sale, destruction, loss, or
other disposition of any of the property described in this Collateral section,
and sums due from a third party who has damaged or destroyed the Collateral or
from that party’s insurer, whether due to judgment, settlement or other
process.
(E) All
records and data relating to any of the property described in this Collateral
section, whether in the form of a writing, photograph, microfilm, microfiche, or
electronic media, .together with all of Grantor’s right, title, and interest in
and to all computer software required to utilize-, create, maintain, and process
any such records or data on electronic media.
CROSS-COLLATERALIZATION. In
addition to the Note, this Agreement secures all obligations, debts and
liabilities, plus interest thereon, of Grantor of Lender, or anyone or more of
them, as well as all claims by lender against Grantor or anyone or more of them,
whether now existing or hereafter arising, whether related or unrelated to the
purpose of the Note, whether voluntary or otherwise, whether due or not due,
direct or indirect, determined Of undetermined, absolute or contingent,
liquidated or unliquidated, whether Grantor may be liable Individually or
jointly with others, whether obligated as guarantor, surety, accommodation party
or otherwise. However, this Agreement shall not secure, and the “Indebtedness”
shall not include, any obligations arising under Subchapters E end F of Chapter
342 of the Texas Finance Code, as amended.
RIGHT OF SETOFF, To the extent
permitted by applicable law, Lender reserves a right of setoff in all Grantor’s
accounts with lender (whether checking, savings, or some other account). This
includes all accounts Grantor holds jointly with someone else and all accounts
Grantor may open In the future, However, this does not Include any IRA or Xxxxx
accounts, or any trust accounts for which setoff would be prohibited by law,
Grantor authorizes lender, to the extent permitted by applicable law, to charge
or setoff all sums owing on the Indebtedness against any and all such
accounts.
GRANTOR’S REPRESENTATIONS AND
WARRANTIES WITH RESPECT TO THE COLLATERAL. With respect to the
Collateral, Grantor represents and promises to lender that:
Perfection of Security
Interest. Xxxxxxx agrees to take whatever actions are requested by lender
to perfect and continue Xxxxxx’s security interest in the Collateral. Upon
request of Xxxxxx, Grantor will deliver to Lender any and all of the documents
evidencing or constituting the Collateral and Grantor will note Xxxxxx’s
interest upon any and all chattel paper and instruments if not delivered to
Lender for possession by lender. This is a continuing Security Agreement and
will continue in effect even though all or any part of the Indebtedness is paid
in full and even though for a period of time Grantor may not be indebted to
lender.
Notices to Lender. Grantor
will promptly notify lender in writing at lender’s address shown above (or such
other addresses as Lender may designate from time to time prior to any (1)
change in Grantor’s name; (2) change in Grantor’s assumed business name(s); (3)
change in the management of the Corporation Grantor; (4) change in the
authorized signer(s); (5) change in Grantor’s principal office address; (6)
change In Grantor’s state of organization; (7) conversion of Grantor to a new or
different type of business entity: or (8) change in any other aspect of Grantor
that directly or indirectly relates to any agreements between Grantor and
lender. No change in Grantor’s name or state of organization will take effect
until after Xxxxxx has received notice.
No Violation. The execution
and delivery of this Agreement will not violate any law or agreement governing
Grantor or to which Grantor Is a party, and its certificate or articles of
incorporation and bylaws do not prohibit any term or condition of this
Agreement.
Enforceability of Collateral.
To the extent the Collateral consists of accounts, chattel paper, or general
intangibles, as defined by the Uniform Commercial Code, the Collateral is
enforceable in accordance with its terms, is genuine, and fully complies with
all applicable laws and regulations concerning form, content and manner of
preparation and execution, and all persons appearing to be obligated on the
Collateral have authority and capacity to contract and are in fact obligated as
they appear to be on the Collateral. At the time any account becomes subject to
a security interest In favor of Xxxxxx, the account shall be a good and valid
account representing an undisputed, bona fide indebtedness incurred by the
account debtor, for merchandise held subject to delivery instructions or
previously shipped or delivered pursuant to a contract of sale, or for services
previously performed by Grantor with or for the account debtor. So 10nlI as this
Agreement remains in effect, Grantor shall not, without Xxxxxx’s prior written
consent, compromise, settle, adjust, or extend payment under or with regard to
any such Accounts. There shall be no setoffs or counterclaims against any of the
Collateral, and no agreement shall have been made under which any deductions or
discounts may be claimed concerning the Collateral except those disclosed to
Lender in writing.
Location of the Collateral.
Except in the ordinary course of Xxxxxxx’s business, Xxxxxxx agrees to keep the’
Collateral (or to the extent the Collateral consists of intangible property such
as accounts or general Intangibles, the records concerning the Collateral at
Grantor’s address shown above or at such other locations as are acceptable to
Lender. Upon Lender’s request, Grantor will deliver to Lender in form
satisfactory to Lender a schedule of real properties and Collateral locations
relating to Grantor’s operations, including without limitation the following:
(11 all real property Grantor owns or is purchasing; (2) all real property
Grantor is renting or leasing: (3) all storage facilities Grantor owns, rents,
leases, or uses; end (4) all other properties where Collateral is or may be
located.
Removal of the Collateral.
Except in the ordinary course of Grantor’s business, Grantor shall not remove
the Collateral from its existing location without Lender’s prior written
consent. Grantor shall, whenever requested advise Lender of the exact location
of the Collateral.
Transactions Involving
Collateral. Except for inventory sold or accounts collected in the
ordinary course of Grantor’s business, or as otherwise provided for In this
Agreement, Grantor shall not sell, offer to sell, or otherwise transfer or
dispose of the Collateral. Grantor shall not pledge, mortgage, encumber or
otherwise permit the Collateral to be subject to any lien, security interest,
encumbrance, or charge, other than the security interest provided for in this
Agreement, without the prior written consent of Lender. This Includes security
interests even if junior in right to the security interests granted under this
Agreement. Unless waived by Xxxxxx, all proceeds from any disposition of the
Collateral (for whatever reason shall be held in trust for Lender and shall not
be commingled with any other funds: provided however, this requirement shall not
constitute consent by Lender to any sale or other disposition. Upon receipt,
Grantor shall immediately deliver any such proceeds to Lender.
Title. Grantor represents and
warrants to Lender that Grantor holds good and marketable title to the
Collateral, free and clear of all liens and encumbrances except for the lien of
this Agreement. No financing statement covering any of the Collateral is on file
in any public office other than those which reflect the security interest
created by this Agreement or to which lender has specifically consented. Grantor
shall defend Xxxxxx’s rights in the Collateral against the claims end demands of
all other persons.
Repairs and Maintenance.
Grantor agrees to keep and maintain, and to cause others to keep and maintain,
the Collateral in good order, repair and condition at all times while this
Agreement remains in effect. Xxxxxxx further agrees to pay when due all claims
for work done on, or services rendered or material furnished in connection with
the Collateral so that no lien or encumbrance may ever attach to or be filed
against the Collateral,
Inspection of Collateral.
Lender and Xxxxxx’s designated representatives and agents shall have the right
at all reasonable times to examine and Inspect the Collateral wherever
located.
Taxes, Assessments and Liens.
Grantor will pay when due all taxes, assessments and liens upon the Collateral,
its use or operation, upon this Agreement, upon any promissory note or notes
evidencing the Indebtedness, or upon any of the other Related Documents. Grantor
may withhold any such payment or may elect to contest any lien if Grantor is in
good faith conducting an appropriate proceeding to contest the obligation to pay
and so long as Xxxxxx’s Interest in the Collateral is not Jeopardized In
lender’s sole opinion. In any contest Grantor shall defend itself and Xxxxxx and
shall satisfy any final adverse judgment before enforcement against the
Collateral Grantor shall name Xxxxxx as an additional obligee under any surety
bond furnished in the contest proceedings. Xxxxxxx further agrees to furnish
Lender with evidence that such taxes, assessments, and governmental and other
charges have been paid in full and in a timely manner. Grantor may withhold any
such payment or may elect to contest any lien if Grantor is in good faith
conducting an appropriate proceeding to contest the obligation to pay and 90
long as lender’s interest in the Collateral is not jeopardized.
Compliance with Governmental
Requirements. Grantor shall comply promptly with all laws, ordinances,
rules and regulations of all governmental authorities, now or hereafter in
effect. applicable to the ownership, production, disposition, or use of the
Collateral, including all laws or regulations relating to the undue erosion of
highly erodible land or relating to the conversion of wetlands for the
production of an agricultural product or commodity. Grantor may contest in good
faith any such law, ordinance or regulation and withhold compliance during any
proceeding, including appropriate appeals, so long as Xxxxxx’x interest in the
Collateral, in Lender’s opinion, is not jeopardized.
Hazardous Substances. Grantor
represents and warrants that the Collateral never has been, and never will be so
long as this Agreement remains a lien on the Collateral, used in violation of
any Environmental Laws or for the generation manufacture, storage,
transportation, treatment, disposal, release or threatened release of any
Hazardous Substance. The representations and warranties contained heroin are
based on Grantor’s due diligence in investigating the Collateral for Hazardous
Substances. Grantor hereby (1) releases and waives any future claims against
Xxxxxx for indemnity or contribution in the event Grantor becomes liable for
cleanup or other costs under any Environmental laws, and (2) agrees to
indemnify, defend and hold harmless Lender against any and all claims and losses
resulting from n breach of this provision of this Agreement. This obligation to
indemnify and defend shall survive the payment of the Indebtedness and the
satisfaction of this Agreement.
Maintenance of Casualty
Insurance. Grantor shall procure and maintain ell risks insurance,
including without limitation fire, theft and liability coverage together with
such other insurance as Lender may require with respect to the Collateral, in
form, amounts, coverages and basis reasonably acceptable to Lender. Grantor,
upon request of Xxxxxx, will deliver to Lender from time to time the policies or
certificates of insurance in form satisfactory to lender, including stipulations
that coverages will not be cancelled or diminished without at least ten (10)
days’ prior written notice to Lender and not including any disclaimer of the
Insurer’s liability for failure to give such a notice. Each insurance policy
also shall include an endorsement providing that coverage in favor of Lender
will not be impaired in any way by any act, omission or default of Grantor or
any other person. In connection with all policies covering assets in which
Lender holds or is offered a security interest, Grantor will provide lender with
such loss payable or other endorsements as Lender may require. If Grantor at any
time fails to obtain or maintain any insurance as required under this Agreement,
lender may (but shall not be obligated to) obtain such Insurance as Lender deems
appropriate, including if Lender so chooses “single Interest insurance,” which
will cover only Lender’s interest in the Collateral.
Application of Insurance
Proceeds. Grantor shall promptly notify Lender of any loss or damage to
the Collateral, whether or not such casualty or loss is covered by Insurance.
Lender may make proof of loss if Grantor fails to do so within fifteen (15) days
of the casualty.
All
proceeds of any insurance on the Collateral, including accrued proceeds thereon,
shall be held by Lender as part of the Collateral. If Lender consents to repair
or replacement of the damaged or destroyed Collateral, Lender shall, upon
satisfactory proof of expenditure, pay or reimburse Grantor from the proceeds
for the reasonable cost of repair or restoration. If Lender does not consent to
repair or replacement of the Collateral, Lender shall retain a sufficient amount
of the proceeds to pay all of the Indebtedness, and shall pay the balance to
Grantor. Any proceeds which have not been disbursed within six (6) months after
their receipt and which Grantor has not committed to the repair or restoration
of the Collateral shall be used to prepay the Indebtedness.
Insurance Reserves. Lender may
require Grantor to maintain with Lender reserves for payment of insurance
premiums, which reserves shall be created by monthly payments from Grantor of a
sum estimated by Lender to be sufficient to produce, at least fifteen (15) days
before the premium due data, amounts at least equal to the Insurance premiums to
be paid. If fifteen (15) days before payment is due, the reserve funds are
insufficient, Grantor shall upon demand pay any deficiency to Lender. The
reserve funds shall be held by Lender as a general deposit and shell constitute
a non-interest-bearing account which Lender may satisfy by payment of the
insurance premiums required to be paid by Grantor as they become due. Lender
does not hold the reserve funds in trust for Grantor, and Xxxxxx Is not the
agent of Grantor for payment of the insurance premiums required to be paid by
Grantor. The responsibility for the payment of premiums shall remain Grantor’s
sale responsibility.
Insurance Reports. Grantor,
upon request of Xxxxxx, shall furnish to Lender reports on each existing policy
of Insurance showing such information as Lender may reasonably request including
the following: (1) the name of the insurer; (2) the risks insured; (31 the
amount of the policy; (4) the property insured; (5) the then current value on
the basis of which Insurance has been obtained and the manner of determining
that value; end (6) the expiration date of the policy. In addition, Grantor
shall upon request by Xxxxxx (however not more often than annually have an
independent appraiser satisfactory to Lender determine, as applicable, the cash
value or replacement cost of the Collateral.
Financing Statements. Grantor
authorizes Lender to file a UCC Financing statement, or alternatively, a copy of
this Agreement to perfect Lender’s security interest. At Lender’s request,
Xxxxxxx additionally agrees to sign all other documents that are necessary to
perfect, protect, and continue Xxxxxx’s security interest in the Property.
Grantor will pay all filing fees, title transfer fees, and other fees and costs
involved unless prohibited by law or unless Lender is required by law to pay
such fees and costs. Grantor irrevocably appoints Xxxxxx to execute documents
necessary to transfer title if there is a default. Lender may file a copy of
this Agreement as a financing statement. If Grantor changes Grantor’s name or
address, or the name or address of any person granting a security interest under
this Agreement changes, Grantor will promptly notify the Lender of such
change.
XXXXXXX’S RIGHT TO POSSESSION AND TO
COLLECT ACCOUNTS. Until default and except as otherwise provided below
with respect to accounts, Grantor may have possession of the tangible personal
property and beneficial use of all the Collateral and may use it in any lawful
manner not inconsistent with this Agreement or any Related Documents, provided
that Grantor’s right to possession and beneficial use shall not apply to any
Collateral where possession of the Collateral by Lender is required by law to
perfect Lender’s security interest in such Collateral. Until otherwise notified
by lender, Grantor may collect any of the Collateral consisting at accounts. At
any time and even though no Event of Default exists, Lender may exercise its
rights to collect the accounts and to notify account debtors to make payments
directly to Lender for application to the Indebtedness. If Lender at any time
has possession of any Collateral, whether before or after an Event of Default,
Lender shall be deemed to have exercised reasonable care in the custody and
preservation of the Collateral if Lender takes such action for that purposes
Grantor shall request or as Lender, in Xxxxxx’s sale discretion, shall deem
appropriate under the circumstances, but failure to honor any request by Grantor
shall not of itself be deemed to be a failure to exercise reasonable care,
Lender shell not be required to take any steps necessary to preserve any rights
in the Collateral against prior parties, nor to protect, preserve or maintain
any security interest given to secure the Indebtedness.
XXXXXX’S EXPENDITURES. If any
action or proceeding is commenced that would materially affect Lender’s interest
in the Collateral or if Grantor fails to comply with any provision of this
Agreement or any Related Documents, including but not limited to Grantor’s
failure to discharge or pay when due any amounts Grantor is required to
discharge or pay under this Agreement or any Related Documents, Lender on
Grantor’s behalf may (but shall not be Obligated to take any action that Lender
deems appropriate, Including but not limited to discharging or paying all taxes,
liens, security Interests, encumbrances and other claims, at any time levied or
placed on the Collateral and Paying all costs for insuring, maintaining and
preserving the Collateral. All such expenditures paid by lender for such
purposes will then bear interest at the Note rate from the date paid by Lender
to the date of repayment by Grantor. To the extent permitted by applicable law,
all such expenses will become a part of the Indebtedness and, at Lender’s
option, will (A) be payable on demand; (B) be added to the balance of the Note
and, be portioned among end be payable with any installment payments to become
due during either (1) the term of any applicable Insurance policy; or (2) the
remaining term of the Note; or (C) be treated as a balloon payment which will be
due and payable at the Note’s maturity. The Agreement’ also will secure payment
of these amounts. Such right shall be in addition to all other rights and
remedies to which Xxxxxx may be entitled upon Default.
DEFAULT. Each of the following
shall constitute an Event of Default under this Agreement:
Payment Default. Grantor fails
to make any payment when due under the Indebtedness.
Other Defaults. Grantor fails
to comply with or to perform any other term, obligation, covenant or condition
contained in this Agreement or in any of the Related Documents or to comply with
or to perform any term, obligation, covenant or condition contained in any other
agreement between lender and Grantor.
Default in Favor of Third
Parties. Should Borrower or any Grantor default under any loan, extension
of credit, security agreement, purchase or sales agreement, or any other
agreement, in favor of any other creditor or person that may materially affect
any of Grantor’s property or Grantor’s or any Grantor’s ability to repay the
Indebtedness or perform their respective obligations under this Agreement or any
of the Related Documents.
False Statements. Any
warranty, representation or statement made or furnished to Lender by Grantor or
on Grantor’s behalf under this Agreement or the Related Documents is false or
misleading in any material respect, either now or at the time made or furnished
or becomes false or misleading at any time thereafter.
Defective Collateralization.
This Agreement or any o’ the Related Documents ceases to be in full force and
effect (including failure of any collateral document to create e valid and
perfected security Interest or lien) at any time and for any
reason.
Insolvency. The dissolution or
termination of Grantor’s existence as a going business, the insolvency of
Grantor, the appointment of a receiver for any pan of Xxxxxxx’s property, any
assignment for the benefit of creditors, any type of creditor workout, or the
commencement of any proceeding under any bankruptcy or insolvency laws by or
against Grantor,
Creditor or Forfeiture
Proceedings. Commencement of foreclosure or forfeiture proceedings,
whether by judicial proceeding, self-help, repossession or any other’ method, by
any creditor of Grantor or by any governmental agency against any collateral
securing the Indebtedness. This includes a garnishment of any of Grantor’s
accounts, including deposit accounts, with Xxxxxx. However, this Event of
Default shall not apply II there is a good faith dispute by Grantor as to the
validity or reasonableness of the claim which is the basis of the creditor or
forfeiture proceeding and if Grantor gives Xxxxxx written notice of the creditor
or forfeiture proceeding and deposits with Lender monies or 8 surety bond for
the creditor or forfeiture proceeding, in an amount determined by Lender, in its
sale discretion, as being an adequate reserve or bond for the
dispute.
Events Affecting Guarantor.
Any of the preceding events occurs with respect to any Guarantor of any of the
Indebtedness or Guarantor dies or becomes Incompetent or revokes or disputes the
validity of, or liability under, any Guaranty of the Indebtedness.
Adverse Change. A material
adverse change occurs In Grantor’s financial condition, or lender believes the
prospect of payment or performance of the Indebtedness is Impaired.
Insecurity. Lender in good
faith believes itself insecure.
RIGHTS AND REMEDIES ON DEFAULT.
If an Event of Default occurs under this Agreement, at any time thereafter, Lender
shall have all the rights of a secured party under the Texas Uniform Commercial
Code. In addition and without limitation, lender may exercise anyone or more of
the following rights and remedies:
Accelerate Indebtedness.
Xxxxxx may declare the entire Indebtedness immediately due and payable,
without notice of any kind to Grantor. Assemble Collateral. lender may require
Grantor to deliver to Lender all or any portion of the Collateral and any and
all certificates of title and other documents relating to the Collateral, Lender
may require Grantor to ·assemble the Collateral and make it available to Lender
at a place to be designated by Lender. Xxxxxx also shall have full power to
enter, provided lender does so without a breach of the peace or a trespass, upon
the property of Grantor to take possession of and remove the Collateral. If the
Collateral contains other goods not covered by this Agreement at the lime of
repossession, Grantor agrees Lender may take such other goods, provided that
Xxxxxx makes reasonable efforts to return them to Grantor alter
repossession.
Sell the Collateral. Lender
shall have full power to sell, lease, transfer, or otherwise deal with the
Collateral or proceeds thereof in Lender’s own name or that of Grantor. Lender
may sell the Collateral at public auction or private sale. Unless the Collateral
threatens to decline speedily in value or is of a type customarily sold on a
recognized market, lender will give Grantor, and other persons as required by
law, reasonable notice of the time and place at any public sale, or the time
after which any private sale or any other disposition of the Collateral is to be
made. However, no notice need be provided to any person who, after Event of
Default occurs, enters into and authenticates an agreement waiving that person’s
right to notification of sale. The requirements at reasonable notice shall be
met if such notice is given at least ten (10) days before the time of the sale
or disposition. All expenses relating to the disposition of the Collateral,
including without limitation the expenses of retaking, holding, insuring,
preparing for sale and selling the Collateral, shall become a part at the
Indebtedness secured by this Agreement and shall be payable on demand, with
interest at the Note rate from date of expenditure until repaid.
Appoint Receiver. Lender shall
have the right to have a receiver appointed to take possession of all or any
part of the Collateral, with the power to protect and preserve the Collateral,
to operate the Collateral preceding foreclosure or sale, and to collect the
Rents from the Collateral and apply the proceeds, over and above the cost of the
receivership, against the Indebtedness. The receiver may serve without bond If
permitted by law. Xxxxxx’s right to the appointment of a receiver shall exist
whether or not the apparent value of the Collateral exceeds the Indebtedness by
a substantial amount. Employment by Xxxxxx shall not disqualify e person from
serving as a receiver.
Collect Revenues, Apply
Accounts. Lender, either itself or through a receiver, may collect the
payments, rents, income, and revenues from the Collateral, Lender may at any
time In Lender’s discretion transfer any Collateral into Lender’s own name or
that of lender’s nominee and receive the payments, rents, income, and revenues
therefrom and hold the same as security for the Indebtedness or apply
it to payment of the Indebtedness in such order of preference as lender may
determine. Insofar as the Collateral consists of accounts, general intangibles,
insurance policies, instruments, chattel paper, chases in action, or similar
property, Lender may demand, collect receipt for settle, compromise, adjust, sue
for, foreclose, or realize on the Collateral so Lender may determine, whether or
not Indebtedness or Collateral is then due. For these purposes, Xxxxxx may, on
behalf of and in the name of Grantor, receive, open and dispose of mail
addressed to Grantor; change any address to which mail and payments are to be
sent; and endorse notes, checks, drafts, money orders, documents of title, instruments and items
pertaining to payment, shipment, or storage of any Collateral. To facilitate
collection, Xxxxxx may notify account debtors and obligors on any Collateral to
make payments directly to Lender.
Obtain Deficiency. If Xxxxxx
chooses to sell any or
all of the Collateral, Xxxxxx may obtain a judgment against Grantor for any
deficiency remaining on the Indebtedness due to Lender after application of all
amounts received from the exercise at the rights provided in this Agreement.
Grantor shall be liable for a deficiency even if the transaction described in
this subsection is a sale of accounts or chattel paper.
Other Rights and Remedies.
Lender shall have all the rights end remedies of a secured creditor under the
provisions of the Uniform Commercial Code, as may be amended tram time to time.
In addition, Lender shall have and may exercise any or all other tights and remedies
It may have available at law, in equity, or otherwise,
Election of Remedies. Except
as may be prohibited by applicable law, all of Lender’s rights and remedies,
whether evidenced by this Agreement, the Related Documents, or by any other
writing, shall be cumulative and may be exercised singularly or concurrently.
Election by Xxxxxx to pursue any remedy shall not exclude pursuit of any other
remedy, and an election to make expenditures or to take action to perform en
obligation of Grantor under this Agreement, after Xxxxxxx’s failure to perform,
shall not affect lender’s right to declare a default and exercise its
remedies.
WAIVER OF
RIGHT TO TRIAL BY JURY. THE UNDERSIGNED HEREBY WAIVES TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT TO ENFORCE THIS AGREEMENT, TO COLLECT
DAMAGES FOR THE BREACH OF THIS AGREEMENT, OR WHICH IN ANY OTHER WAY ARISE OUT
OF, ARE CONNECTED TO OR ARE RELATED TO THIS AGREEMENT OR THE SUBJECT MANNER OF
THIS AGREEMENT. ANY SUCH ACTION SHALL BE TRIED BY THE JUDGE WITHOUT A
JURY.
FACSIMILE DOCUMENTS AND
SIGNATURES. For purposes of negotiating and finalizing this document, if
this document is transmitted by facsimile machine (“fax”), it shall be treated
for all purposes as an original document. Additionally, the signature of any
party on this document transmitted by way of a fax machine shall be considered
for all purposes as an original signature. Any such faxed document shall be
considered to have the same binding legal effect as an original document. At the
request of any party, any faxed document shall be re-executed by each signatory
party in an original form.
MISCELLANEOUS PROVISIONS. The
following miscellaneous provisions are a part of this Agreement:
Amendments. This Agreement,
together with any Related Documents constitutes the entire understanding and
agreement of the parties as to the matters set forth in this Agreement. No
alteration of or amendment to this Agreement shall be effective unless given in
writing and signed by the party or parties sought to be charged or bound by the
alteration or amendment.
Attorneys’ Fees; Expenses.
Xxxxxxx agrees to pay upon demand all of Xxxxxx’s costs and expenses including
Xxxxxx’s reasonable attorneys’ fees and Xxxxxx’s legal expenses incurred in
connection with the enforcement of this Agreement. Lender may hire or pay
someone else to help enforce this Agreement and Grantor shall pay the costs and
expenses of such enforcement. Costs and expenses include Xxxxxx’s reasonable
attorneys’ fees and legal expenses whether or not there is a lawsuit, including
Xxxxxx’s reasonable attorneys’ fees and legal expenses for bankruptcy
proceedings (including efforts to modify or vacate any automatic stay or
injunction), appeals, and any anticipated post-judgment collection services.
Grantor also shall pay all court costs and such additional fees as may be
directed by the court.
Caption Headings. Caption
headings in this Agreement are for convenience purposes only and are not to be
used to interpret or define the provisions of this Agreement.
Governing Law. This Agreement
will be governed by federal law applicable to lender and, to the extent not
preempted by federal law. the laws of the State of Texas without regard to its
conflicts of law provisions. This Agreement has been accepted by lender in the
State of Texas.
Choice of Venue. II there is a
lawsuit, and if the transaction evidenced by this Agreement occurred In BEXAR
County, Xxxxxxx agrees upon Xxxxxx’s request to submit to the jurisdiction of
the courts of BEXAR County, State of Texas.
No Waiver by Xxxxxx. Lender
shell not be deemed to have waived any rights under this Agreement unless such
waiver is given in writing and signed by Xxxxxx. No delay or omission on the
part of Lender In exercising any right shall operate as a waiver of such right
or any other right. A waiver by Xxxxxx of e provision of this Agreement shall
not prejudice or constitute a waiver of Lender’s right otherwise to demand
strict compliance with that provision or any other provision of this Agreement.
No prior waiver by Lender nor any course of dealing between Xxxxxx and Grantor,
shall constitute a waiver of any of Lender’s rights or of any of Grantor’s
obligations as to any future transactions. Whenever the consent of Lender is
required under this Agreement the granting of such consent by lender in any
instance shall not constitute continuing consent to subsequent instances where
such consent is required and in all cases such consent may be granted or
withheld in the sole discretion of Lender.
Notices. Any notice required
to be given under this Agreement shall be given in writing, and shall be
effective when actually delivered, when actually received by tale facsimile
(unless otherwise required by law), when deposited with a nationally recognized
overnight courier, or, if mailed when deposited in the United States mail as
first class, certified or registered mail postage prepaid, directed to the
addresses shown near the beginning of this Agreement. Any party may change its
address for notices under this Agreement by giving formal written notice to the
other parties, specifying that the xxxxx.xx of the notice is to change the
party’s address. For notice purposes, Xxxxxxx agrees to keep Xxxxxx informed at
all times of Xxxxxxx’s current address. Unless otherwise provided or required by
law if there is more than one Grantor, any notice given by Lender to any Grantor
is deemed to be notice given to all Grantors.
Power of Attorney. Grantor
hereby appoints Xxxxxx as Xxxxxxx’s irrevocable attorney-in-fact for the purpose
of executing any documents necessary to perfect, amend, or to continue the
security interest granted in this Agreement or to demand termination of filings
of other secured parties Lender may at any time and without further
authorization from Grantor file a carbon, photographic or, other reproduction of
any financing statement or of this Agreement for use as a financing statement.
Grantor will reimburse Lender for all expenses for the perfection and the
continuation of the perfection of Xxxxxx’s security interest in the
Collateral.
Severability. If a court of
competent jurisdiction finds any provision of this Agreement to be illegal
invalid; or unenforceable as to any circumstance, that finding shall not make
the offending provision illegal, invalid, or unenforceable as to any other
circumstance. If feasible, the offending provision shall be considered modified
so that it becomes legal, valid and enforceable. If the offending provision
cannot be so modified. It shall be considered deleted from this Agreement.
Unless otherwise required by law, the illegality, invalidity or unenforceability
of any provision of this Agreement shall not affect the legality, validity or
enforceability of any other provision of this Agreement.
Successors and Assigns.
Subject to any limitations stated in this Agreement on transfer of Grantor’s
Interest this Agreement shall be binding upon and Inure to the benefit of the
parties their successors and assigns. If ownership of the Collateral becomes
vested in a person other than Grantor, lender. without notice to Grantor, may
deal with Xxxxxxx’s successors with reference to this Agreement end the
Indebtedness by way of forbearance or extension without releasing Grantor from
the obligations of this Agreement or liability under the
Indebtedness.
Survival of Representations and
Warranties. All representations, warranties, and agreements made by
Grantor in this Agreement shall survive the execution and delivery of this
Agreement shall be continuing in nature and shall remain in full force and
effect until such time as Grantor’s Indebtedness shall be paid in
full.
Time is of the Essence. Time
is of the essence in the performance of this Agreement.
DEFINITIONS. The following
capitalized words and terms shall have the following meanings when used in this
Agreement. Unless specifically stated to the contrary, all references to dollar
amounts shall mean amounts in lawful money of the United States of America.
Words and terms used in the singular shall include the plural, and the plural
shall include the singular, as the context may require. Words and terms not
..otherwise defined in this Agreement shall have the meanings attributed to such
terms in the Uniform Commercial Code:
Agreement. The word
“Agreement” means this Commercial Security Agreement as this Commercial Security
Agreement may be amended or modified from time to time, together with all
exhibits and schedules attached to this Commercial Security Agreement from time
to time.
Borrower. The word “Borrower”
means LABWIRE, INC. end includes all co-signers and co-makers signing the Note
and all their successors and assigns.
Collateral. The word
‘Collateral” means ell of Grantor’s right, title and interest in and to all the
Collateral as described in the Collateral Description section of this
Agreement.
Default. The word “Default”
means the Default set forth in this Agreement in the section titled
“Default”.
Environmental Laws. The words
“Environmental Laws” mean any and all state, federal and local statutes,
regulations and ordinances relating to the protection of human health or the
environment, including without limitation the Comprehensive Environmental
Response. Compensation and Liability Act of 1980, as amended. 42 U.S.C, Section
9601. et seq. (“CERCLA”), the Superfund Amendments and Reauthorization Act of
1986. Pub. L. No. 99·499 ‘‘‘XXXX “I, the Hazardous Materials Transportation Act,
49 U.S.C. Section 1801, et seq. the Resource Conservation and Recovery Act. 42
U.S.C. Section 6901, et seq., or other applicable state or federal laws, rules
or regulations adopted pursuant thereto.
Event of Default. The words
“Event of Default” mean any of the events of default set forth in this Agreement
in the default section of this Agreement.
Grantor. The word “Grantor”
means LABWIRE, INC.
Guarantor. The word
“Guarantor” means any guarantor, surety, or accommodation party of any or all of
the Indebtedness.
Guaranty. The word “Guaranty”
means the guaranty from Guarantor to Lender, including without limitation a
guaranty of all or part of the Note.
Hazardous Substances. The
words “Hazardous Substances” mean materials that because of their quantity,
concentration or physical, chemical or infectious characteristics, may cause or
pose a present or potential hazard to human health or the environment when
improperly used, treated, stored. disposed of, generated, manufactured,
transported or otherwise handled. The words “Hazardous Substances” are used in
their very broadest sense and include without limitation any and all hazardous
or toxic substances, materials or waste as defined by or listed under the
Environmental Laws. The term “Hazardous Substances” also includes, without
limitation, petroleum and petroleum by-products or any fraction thereof and
asbestos.
Indebtedness. The word
“Indebtedness” means the indebtedness evidenced by the Note or Related
Documents, including all principal and interest together with all other
indebtedness and costs and expenses for which Grantor is responsible under this
Agreement or under any of the Related Documents. Specifically, without
limitation, Indebtedness includes all amounts that may be indirectly secured by
the Cross-Collateralization provision of this Agreement.
Lender. The word “Lender”
means THE FROST NATIONAL BANK its successors and assigns.
Note. The word “Note” means
the Note executed by XXXXXXX, INC. in the principal amount of $241,932.71 dated
March 4, 2008, together with all renewals of, extensions of, modifications of,
refinancing of, consolidations of, and substitutions for the note or credit
agreement.
Property. The word “Property”
means all of Grantor’s right, title and interest in and to all the Property as
described in the “Collateral Description” section of this
Agreement.
Related Documents. The words
“Related Documents” mean all promissory notes, credit agreements, loan
agreements, environmental agreements, guaranties, security agreements,
mortgages, deeds of trust, security deeds, collateral mortgages, and ail other
instruments, agreements and documents, whether now or hereafter existing,
executed in connection with the Indebtedness.
GRANTOR
HAS READ AND UNDERSTOOD ALL THE PROVISIONS OF THIS COMMERCIAL SECURITY AGREEMENT
AND AGREES TO ITS TERMS. THIS AGREEMENT IS DATED MARCH 4, 2008.
GRANTOR:
LABWIRE,
INC.
By: //s// Xxxxxx
Xxxxxx
Xxxxxx X.
Xxxxxx, President of LABWIRE, INC.
