SECURITY AGREEMENT
Exhibit 10.11
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THE STATE OF TEXAS
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KNOW
ALL MEN BY THESE PRESENTS:
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COUNTY
OF XXXXXX
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THAT
COIL TUBING TECHNOLOGY,
INC., a Nevada corporation, whose address of principal place of business
is 00000 Xxxx Xxxx, Xxxxx X, Xxxxxx, Xxxxx 00000 (hereinafter called “Debtor”), hereby grants
to XXXXXXX XXXXX XXXXX,
an individual, whose address is 0000 Xxxxxxxxx Xxxx, Xxxx Xxxxx, Xxxxxxxx, 00000
(hereinafter called “Secured Party”), a security
interest in the following described personal property (hereinafter called “Collateral”),
to-wit:
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1.
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All
machinery and equipment, owned or hereafter acquired;
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2.
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All
inventory owned and all proceeds and products thereof in any form derived
therefrom. By way of illustration and not by way of limitation,
the term “inventory” shall be deemed to include within its meanings any
and all of Debtor’s goods, merchandise, and other personal property of the
Debtor, held for sale or lease or to be furnished under contracts of
service, wherever located or in transit, together with all attachments,
accessories, replacements, substitutions, additions, and improvements to
any of the foregoing, whether now owned or hereafter
acquired;
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3.
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All
rights under any contracts, chose in actions or causes of action owned or
hereafter acquired and all proceeds and products thereof in any form
derived therefrom; and
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4.
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All
documents and documents of title, receipts, and the like, evidencing title
to the inventory and contract rights, chose in actions or causes of action
described in the previous two (2)
paragraphs.
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These
personal properties will be referred to herein as “Collateral” and are of the
following classifications:
MACHINERY
& EQUIPMENT, INVENTORY AND GENERAL INTANGIBLES
This
security interest is created to secure the payment by Debtor of that certain
Line of Credit Promissory Note of even date herewith (and to secure the
renewals, modifications, and extensions of such Line of Credit Promissory Note),
in the total principal amount of $250,000.00 (“Promissory Note”), at the rate of
interest and on the terms and conditions more fully set forth
therein.
Debtor
warrants, covenants, represents and agrees as follows:
(1) That
Debtor is the full owner of said Collateral and has authority to grant this
security interest hereon free from any setoff, claim, restriction, security
interest, or encumbrance except liens for taxes not yet due; that no Financing
Statement is on file covering the Collateral or its proceeds; and except for the
security interest granted hereby, there is no lien or encumbrances in or on the
Collateral, unless otherwise expressly stated herein; that Debtor will not
pledge or assign any interest in the Collateral described herein, or place or
allow any security interest or other lien to be placed against said Collateral,
without the written consent of Secured Party.
(2) That
none of the Collateral is an accession to any goods, is commingled with other
goods, is or will become an accession or part of a product or mass with other
goods, or is or will become covered by a document except as provided in this
Security Agreement.
(3) That
Collateral is located solely at Debtor’s principal place of
business.
(4) That
Debtor is a corporation, duly organized in the State of Nevada and registered to
do business in Texas and that Debtor’s name, as shown in its organizational
documents, as amended, is exactly as set forth above.
(5) That
Debtor’s federal tax identification number is 00-0000000.
(6) That
all information about Debtor’s financial condition is or will be accurate when
provided to Secured Party.
(7) That
none of the Collateral is affixed to real estate.
(8) That
the indebtedness as evidenced by the above referenced Promissory Note was not
incurred, was not acquired, and will not be held primarily for personal, family,
or household purposes.
(9) That
Debtor’s records concerning the Collateral are located at its principal place of
business.
(10) That
Debtor’s principal place of business is the address shown at the beginning
hereof.
(11) Except
as is contemplated in the Share distribution as described in the Registration
Statement filed by Coil Tubing Holdings on February 13, 2009 (including any
amendments thereto), that the Collateral will not be sold, transferred, rented,
leased, pledged, made subject to a security agreement, or removed from its
present location above named, other than in the ordinary course of business, as
provided below, without the written consent of Secured Party and that the
Collateral will not be misused or abused, wasted or allowed to deteriorate,
except for ordinary wear and tear from its intended use. The
Collateral shall remain in Secured Party’s possession or control at all times
until the indebtedness, as set forth in the Promissory Note has either been paid
in full or Secured Party has been released from all further obligation under its
guaranties of the same.
(12) That
the Collateral will be used primarily for the respective classifications of use
above stated, and for no other use without the written consent of Secured
Party.
(13) That
Debtor will sign and execute, upon request of Secured Party, any financing
statement or other document or procure any document, and pay all connected
costs, necessary to protect the security interest granted hereby against the
rights or interests of third persons.
(14) That
Debtor will protect the title and possession of the Collateral and will pay
promptly, when due and before becoming delinquent, all taxes and assessments now
existing or hereafter levied or assessed against such said Collateral or any
part thereof, and will keep said Collateral insured, if insurable and if
insurance is available from a reputable insurance company, to the extent of the
original amount of the indebtedness hereby secured or to the full insurable
value of the said Collateral, whichever is the lesser, against loss or damage by
fire, windstorm and theft and any other hazard or hazards as may be reasonably
required from time to time by Secured Party, in such form and with such
insurance company or companies as may be approved by Secured Party and will
deliver to Secured Party the policies of such insurance, having attached thereto
such mortgage indemnity clause as Secured Party shall direct, and will deliver
renewals of such policies to Secured Party at least ten (10) days before any
such insurance policies expire; any sums which may become due under such policy,
or policies, may be applied to Debtor’s option, to reduce said indebtedness,
whether due or not, or Debtor may use said sums to repair or replace all
Collateral damaged or destroyed and covered by such insurance, under the
supervision of the Secured Party. Debtor appoints Secured Party as
attorney-in-fact to collect any returned unearned premiums and proceeds of any
insurance on the Collateral and to endorse and deliver to Secured Party any
payment from such insurance made payable to Debtor. Debtor’s appointment of
Secured Party as Debtor’s agent is coupled with an interest.
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(15) That
Debtor will keep the Collateral in good condition and free from liens and other
security interest and will allow Secured Party to examine and inspect the
Collateral at any reasonable time, wherever located.
(16) That
in the event Debtor shall fail to keep said Collateral in good repair and
condition, or to pay promptly when due all taxes and assessments, as aforesaid,
or to preserve the prior security interest hereby granted in said Collateral, or
to keep said Collateral insured, as aforesaid, or to deliver the policy or
policies of insurance or the renewal thereof to Secured Party as aforesaid, then
Secured Party may, at its option, but without being required to do so, make such
repairs, pay such taxes and assessments, remove any prior liens or security
interest and prosecute or defend any suits in relation to the prior security
interest of this agreement in said Collateral, or insure and keep insured said
Collateral in an amount not to exceed that above stipulated; that any sum which
may be so paid out by Secured Party and all sums paid for insurance premiums, as
aforesaid, including the costs, expenses and attorney’s fees paid in any suit
affecting said Collateral when necessary to protect the security interest hereof
shall bear interest from dates of such payment at the highest interest rate as
allowed under applicable laws and shall be paid by Debtor to Secured Party upon
demand, at the same place at which the above described indebtedness is payable
and shall be a part of the indebtedness hereby secured and recoverable as such
in all respects.
(17) That
Debtor shall notify Secured Party immediately of any event of default and of any
material change (a) in the Collateral, (b) in Debtor’s address of principal
place of business, (c) in the location of any Collateral, (d) in any other
representation or warranty in this Security Agreement, and (e) that may affect
this security interest, and of any change (f) in Debtor’s name and (g) of any
location set forth above to another state.
(18) That
Debtor shall maintain accurate records of the Collateral at the address set
forth above, furnish Secured Party any requested information related to the
Collateral, and permit Secured Party to inspect and copy all records relating to
the Collateral.
(19) Except
as is contemplated in the Share distribution as described in the Registration
Statement filed by Coil Tubing Holdings on February 13, 2009 (including any
amendments thereto), that Debtor shall not
sell, transfer, or encumber any of the Collateral, except in the ordinary course
of Debtor’s
business.
(20) That
except as permitted in this Security Agreement, Debtor shall not permit the
Collateral to be affixed to any real estate, to become an accession to any
goods, to be commingled with other goods, to become a fixture, accession, or
part of a product or mass with other goods, or to be covered by a document,
except a document in the possession of Secured Party.
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(21) That
Debtor shall not change its name or jurisdiction of organization, merge or
consolidate with any person, or convert to a different entity without notifying
Secured Party in advance and taking action to continue the Secured Party’s
perfected status of the security interest in the Collateral.
(22) That
Debtor shall not deliver any item of inventory to a buyer before the buyer
delivers to Debtor a check, another item, money, an instrument, or chattel paper
in full payment therefor or commingle any check, item, money, or other cash
proceeds from the sale or lease of an item of inventory with any of Debtor’s
other funds or property, other than in the ordinary course of
business.
Debtor
shall be in default under this Security Agreement upon the happening of any of
the following events or conditions (herein called an “Event of
Default”):
(1)
Debtor’s failure to pay when due, or upon demand, the indebtedness hereby
secured, or any installment thereof, principal or interest;
(2) Debtor’s
default in the punctual payment and/or performance of any of the obligations,
covenants, terms or provisions contained herein or in the indebtedness hereby
secured or in any other agreements securing payment of the indebtedness hereby
secured;
(3)
If any warranty, covenant or representation made herein by Debtor proves to have
been false in any material respect when so made;
(4)
Debtor’s dissolution, termination of existence, insolvency or business failure,
or the making by Debtor of an assignment for the benefit of creditors or the
commission of an act of bankruptcy arrangement or other debtor relief laws of
the United States (which is not stayed within sixty (60) days), or the taking
over of the Collateral or any part thereof by a receiver for Debtor or the
placing of same in the custody of any court or an officer or appointee thereof
(which is not stayed within sixty (60) days); or
(5) Any
Collateral is impaired by loss, theft, damage, levy and execution, issuance of
an official writ or order of seizure, or destruction, unless it is promptly
replaced with collateral of like kind and quality or restored to its former
condition.
Upon the
occurrence of an Event of Default, and at any time thereafter, Secured Party may
elect to declare the entire indebtedness hereby secured immediately due and
payable without notice to Debtor. Debtor hereby especially waives
notice, notice of intent to accelerate, notice of acceleration, demand, and
presentment, to declare the entire indebtedness hereby secured immediately due
and payable for non-payment of the said indebtedness when due.
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In the
event of default in the payment of said indebtedness when due or declared due,
the Secured Party will have all the rights and remedies granted by law and
particularly by the Texas Uniform Commercial Code, including but not limited to
the right to take possession of the Collateral and the right to reduce its claim
to judgment, to sell, lease or otherwise dispose of any or all of the Collateral
in its then condition or following any commercially reasonable preparation or
processing. In taking possession of the Collateral, the Secured Party
may enter upon any premises on which the Collateral is situated and remove it
therefrom, and may proceed without judicial process if this can be done without
breach of the peace or may proceed by action.
The
Secured Party may require the Debtor to assemble the Collateral or any part
thereof and make it available to the Secured Party at a place to be designated
by the Secured Party which is reasonably convenient to both
parties. Without removal the Secured Party may render the equipment
unusable and may dispose of the Collateral on the Debtor’s
premises.
The sale,
lease or other disposition of the Collateral may be by public or private
proceedings and may be made by way of one or more contracts, as a unit or in
parcels, at any time and place and any terms, provided that every aspect o the
disposition including the method, time, place and terms are commercially
reasonable. The fact that a better price could have been obtained by
sale or other disposition at a different time or in a different method from that
selected by the Secured Party is not of itself sufficient to establish that the
sale disposition was not made in a commercially reasonable manner. If
the Secured Party either sells or disposes of the Collateral, as hereinafter
stated, or in the usual manner in any recognized market therefor, or if it has
otherwise sold or disposed thereof in conformity with reasonable commercial
practices among dealers in the type of Collateral covered by this agreement, it
has sold in a commercially reasonable manner. A disposition which has
been approved in any judicial proceeding or by any bona fide creditors’ committee or
representative of creditors shall conclusively be deemed to be commercially
reasonable. It is specifically agreed between the parties that it
would be a commercially reasonable manner if Secured Party elected to sell the
Collateral or any part thereof (without exhausting the power to sell the
remainder or any part thereof at Public Sale as herein provided or at Public or
Private Sale as provided in the Uniform Commercial Code of Texas), at Public
Sale to the highest bidder for cash at the courthouse door of the county herein
above stated where the Collateral is now located, after having first given
notice of the time, place and terms of the Public Sale by posting a written or
printed notice (which notice shall also show the location of the Collateral to
be sold), of said sale at the courthouse door of said county, at least twenty
(20) days before the date of sale and after sending reasonable notice to the
Debtor and to such other person or persons legally entitled thereto under the
Uniform Commercial Code of Texas, of the time and place of the public Sale; the
Collateral to be sold may be sold as an entirety or in such parcels as the
Secured Party may elect and it shall not be necessary for the Secured Party to
have actual possession of the Collateral or to have it present when the sale is
made, but full and perfect title shall pass wheresoever said Collateral may then
be, and the Secured Party thus selling said Collateral shall deliver to the
purchaser thereof a Xxxx of Sale or Transfer therefor, binding Debtor to warrant
and forever defend the title to such Collateral, and out of the proceeds of the
sale pay the reasonable expenses so incurred by Secured Party and the balance
remaining shall thereupon be applied toward the payment of the amount then owing
on the indebtedness hereby secured including principal and attorney’s fees as provided
in said note and herein, rendering the balance, if any, and surplus, if any, to
the person or persons legally entitled thereto under the Uniform Commercial Code
of Texas, but if there be any deficiency, Debtor will remain liable
therefor. Secured Party shall have the right to purchase at such
Public Sale, being the highest bidder. The recitals in the Xxxx of
Sale or Transfer to the purchaser at such sale shall be prima facie evidence of
the truth of the matters therein stated and all prerequisites to said sale
required hereunder and under the Uniform Commercial Code of Texas shall be
presumed to have been performed. The Secured Party shall send Debtor
reasonable notice of the time and place of any public sale or of the time after
which any private sale or other disposition of the Collateral is to be
made. The requirement of sending reasonable notice will be met if
such notice is mailed, postage prepaid, to Debtor at the address designated at
the beginning of this agreement at least twenty (20) days before the time of the
sale or disposition. The Secured Party may buy at any public
sale. The proceeds of any sale, lease or other disposition shall be
applied first to the payment of the reasonable expenses of retaking, holding,
preparing for sale, selling and the like, and reasonable attorney’s fees and legal
expenses incurred by the Secured Party, and then to the satisfaction of the
unpaid balance of the purchase price with interest. Debtor will
remain liable for any deficiency remaining after the sale, lease or other
disposition, and Secured Party will account to the Debtor for any
surplus.
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The
Secured Party may, after default, propose to retain the Collateral in
satisfaction of the Debtor’s indebtedness
hereunder, and in such case, notice of the proposal shall be sent to the
Debtor. If the Debtor objects in writing within thirty (30) days from
the receipt of the notification, the Secured Party must dispose of the
Collateral as outlined above. In the absence of such written
objection the Secured Party may retain the Collateral in full and complete
satisfaction of the Debtor’s
indebtedness. At any time before the Secured Party has disposed of
the Collateral, or entered into a contract for its disposition or before the
indebtedness has been discharged by Secured Party’s retention of the
Collateral, the Debtor may, unless otherwise agreed in writing after default,
redeem the Collateral by tendering fulfillment of all indebtedness secured by
the Collateral as well as the expenses reasonably incurred by the Secured Party
in retaking, holding, and preparing the Collateral for disposition, in arranging
for the sale, lease or other disposition, and reasonably attorney’s fees and legal
expenses.
This
Security Agreement and the security interest in the Collateral created herein
will terminate when all indebtedness secured hereby have been paid in
full.
Secured
Party may remedy any default, without waiving same, or may waive any default
without waiving any prior or subsequent default.
The
security interest therein granted shall not be affected by nor affect any other
security taken for the indebtedness hereby secured, or any part thereof; and any
extensions may be made of the indebtedness and this security interest and any
releases may be executed of the Collateral, or any part thereof, herein conveyed
without affecting the priority of this security interest or the validity thereof
without the reference to any third person, and the holder of said indebtedness
shall not be limited to any election of remedies if it chooses to foreclose this
security interest by suit. The right to sell under the terms hereof
shall also exist cumulative with said suit; and one method so resorted to shall
not bar the other, but both may be exercised at the same or different time, nor
shall one be a defense of the other.
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Secured
Party’s delay
in exercising, partial exercise of, or failure to exercise any of its remedies
or rights does not waive Secured Party’s rights to
subsequently exercise those remedies or rights. Secured Party’s waiver of any
default does not waive any other default by Debtor. Secured
Party’s
waiver of any right in this Security Agreement or of any default is binding only
if it is in writing. Secured Party may remedy any default without
waiving it.
Secured
Party has no obligation to clean or otherwise prepare the Collateral for
sale.
If
Secured Party must comply with any applicable state or federal law requirements
in connection with a disposition of the Collateral, such compliance will not be
considered to adversely affect the commercial reasonableness of a sale of the
Collateral.
Secured
Party may sell the Collateral without giving any warranties as to the
Collateral. Secured Party may specifically disclaim any warranties of title or
the like. This procedure will not be considered to adversely affect
the commercial reasonableness of a sale of the Collateral.
If
Secured Party sells any of the Collateral on credit, Debtor will be credited
only with payments actually made by the purchaser and received by Secured Party
for application to the indebtedness of the purchaser. If the
purchaser fails to pay for the Collateral, Secured Party may resell the
Collateral and Debtor will be credited with the proceeds of the
sale.
If
Secured Party purchases any of the Collateral being sold, Secured Party may pay
for the Collateral by crediting the purchase price against the Debtor’s
indebtedness.
Secured
Party has no obligation to marshal any assets in favor of Debtor or against or
in payment of the Note, or any other obligation owed to Secured Party by Debtor
or any other person.
If the
Collateral is sold after default, recitals in the xxxx of sale or transfer will
be prima facie evidence of their truth and all prerequisites to the sale
specified by this Security Agreement and by law will be presumed
satisfied.
This
Security Agreement binds, benefits, and may be enforced by the successors in
interest of Secured Party and will bind all persons who become bound as debtors
to this agreement. Assignment of any part of the indebtedness and
Secured Party’s delivery of any
part of the Collateral will fully discharge Secured Party from responsibility
for that part of the Collateral. If such an assignment is made,
Debtor will render performance under this Security Agreement to the
assignee. Debtor waives and will not assert against any assignee any
claims, defenses, or setoffs that Debtor could assert against Secured Party
except defenses that cannot be waived. All representations,
warranties, and obligations are joint and several as to each
Debtor.
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Interest
on the indebtedness secured by this agreement will not exceed the maximum amount
of nonusurious interest that may be contracted for, taken, reserved, charged, or
received under law. Any interest in excess of that maximum amount
will be credited on the principal of the indebtedness or, if that has been paid,
refunded. On any acceleration or required or permitted prepayment,
any such excess will be canceled automatically as of the acceleration or
prepayment or, if already paid, credited on the principal of the indebtedness
or, if the principal of the indebtedness has been paid,
refunded. This provision overrides any conflicting provisions in this
and all other instruments concerning the indebtedness
The
pronouns used in this agreement are in the neuter gender but shall be construed
as feminine or masculine as occasion may require. “Secured Party” and “Debtor” as used in this
Agreement include and shall bind and inure to the benefit of the respective
heirs, executors or administrators, successors, representatives, receivers,
trustees, or assigns of such parties.
The law
governing this secured transaction shall be the Uniform Commercial Code of Texas
and other applicable laws of the State of Nevada. If any provisions
of this Security Agreement conflicts with any mandatory provision of Uniform
Commercial Code of Texas or any other applicable laws, such mandatory provision
of Uniform Commercial Code of Texas or the applicable laws shall prevail, and
this Security Agreement shall automatically be construed as amended to comply
with such laws. All terms used herein which are defined in the
Uniform Commercial Code of Texas shall have the same meaning herein as in said
Code. The unenforceability of any provision of this Security
Agreement will not affect the enforceability or validity of any other
provision
EXECUTED
effective this the 28th day of May, 2009.
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DEBTOR:
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COIL TUBING TECHNOLOGY,
INC., a Nevada corporation,
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By:
/s/ Xxxxx
Xxxxxxxx
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Name:
Xxxxx Xxxxxxxx
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Title:
President
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SECURED PARTY:
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XXXXXXX XXXXX XXXXX, an
individual,
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