EXHIBIT 10.3
BANK OF AMERICA
SECURITY AGREEMENT
(RECEIVABLES AND INVENTORY)
1. THE SECURITY. The undersigned OYO Instruments, Inc. ("Guarantor") hereby
assigns and grants to Bank of America Texas, N.A. ("Bank") a security interest
in the following described property ("Collateral"):
A. All of the following, whether now owned or hereafter acquired by
Guarantor: accounts, contract rights, chattel paper, instruments,
deposit accounts and general intangibles.
B. All inventory now owned or hereafter acquired by Guarantor. C. All
negotiable and nonnegotiable documents of title now owned or hereafter
acquired by Guarantor covering any of the above-described property.
D. All rights under contracts of insurance now owned or hereafter acquired
by Guarantor covering any of the above-described property.
E. All proceeds now owned or hereafter acquired by Guarantor of any
of the above-described property.
F. All books and records now owned or hereafter acquired by Guarantor
pertaining to any of the above-described property, including but not
limited to any computer-readable memory and any computer hardware or
software necessary to process such memory ("Books and Records").
2. THE INDEBTEDNESS. The Collateral secures and will secure all Indebtedness of
Oyo Geospace Corporation ("Borrower") to Bank. For the purposes of this
Agreement, "Indebtedness" means all loans and advances made by Bank to Borrower
and all other obligations and liabilities of Borrower to Bank, whether now
existing or hereafter incurred or created, whether voluntary or involuntary,
whether due or not due, whether absolute or contingent, with respect to that
certain Business Loan Agreement between Borrower and Bank and dated of even date
herewith (the "Loan Agreement"). Unless Guarantor shall have otherwise agreed in
writing, Indebtedness, for the purposes of this Agreement, shall not include
"consumer credit" subject to the disclosure requirements of the Federal Truth in
Lending Act or any regulations promulgated thereunder.
3. GUARANTOR'S REPRESENTATIONS, WARRANTIES, AND COVENANTS. Guarantor covenants
and warrants that unless compliance is waived by Bank in writing:
A. Guarantor is the owner of the Collateral and has good right, title and
authority to pledge, sell, transfer and assign the Collateral.
B. There is no financing statement or other document creating or
evidencing a lien now on file in any public office covering any of the
Collateral, nor is there any lien or encumbrance on any of the
Collateral.
C. Guarantor shall execute and deliver such financing statements, and do
such other things, as Bank may from time to time require in order to
perfect and preserve the security interest hereby granted and the
priority of such security interest.
D. If any amount payable under or in connection with any of the Collateral
shall become evidenced by any promissory note or other instrument, such
instrument shall be immediately pledged to Bank hereunder and Guarantor
shall deliver to Bank such instrument, duly endorsed in a manner
satisfactory to Bank.
E. Guarantor will properly preserve the Collateral; defend the Collateral
against any adverse claims and demands; and keep accurate Books and
Records.
F. Guarantor has notified Bank in writing of, and will notify Bank in
writing prior to any change in, the locations of (i) Guarantor's place
of business or Guarantor's chief executive office if Guarantor has more
than one place of business, and (ii) any Collateral, including the
Books and Records.
G. Guarantor will notify Bank in writing prior to any change in
Guarantor's name, identity or business structure.
H. Guarantor will maintain and keep in force insurance covering the
Collateral as required by the Loan Agreement. INSURANCE IS REQUIRED IN
CONNECTION WITH THE INDEBTEDNESS SECURED BY THIS SECURITY AGREEMENT.
THE GUARANTOR SHALL HAVE THE OPTION OF FURNISHING THE REQUIRED
INSURANCE EITHER THROUGH EXISTING POLICIES OF INSURANCE OWNED OR
CONTROLLED BY THE GUARANTOR OR OF PROCURING AND FURNISHING EQUIVALENT
INSURANCE COVERAGES THROUGH ANY INSURANCE COMPANY AUTHORIZED TO
TRANSACT BUSINESS IN TEXAS.
1
I. Guarantor has not granted and will not grant any security interest in
any of the Collateral except to Bank, and will keep the Collateral free
of all liens, claims, security interests and encumbrances of any kind
or nature except the security interest of Bank.
J. Guarantor will not sell, lease, agree to sell or lease, or otherwise
dispose of, or remove from Guarantor's place of business (i) any
inventory except in the ordinary course of business as heretofore
conducted by Guarantor, or (ii) any other Collateral except with the
prior written consent of Bank.
K. Guarantor will promptly notify Bank in writing of any event which
affects the value of the Collateral, the ability of Guarantor or Bank
to dispose of the Collateral, or the rights and remedies of Bank in
relation thereto, including, but not limited to, the levy of any legal
process against any Collateral and the adoption of any marketing order,
arrangement or procedure affecting the Collateral, whether governmental
or otherwise.
L. If any Collateral is or becomes the subject of any registration
certificate or negotiable document of title, including any warehouse
receipt or xxxx of lading, Guarantor shall immediately deliver such
document to Bank.
M. Until Bank exercises its rights to make collection, Guarantor will
diligently collect all Collateral.
4. ADDITIONAL OPTIONAL REQUIREMENTS. Guarantor agrees that Bank may at its
option at any time, whether or not Borrower is in default:
A. Require Guarantor to deliver to Bank (i) copies of or extracts from the
Books and Records, and (ii) information on any contracts or other
matters affecting the Collateral.
B. Examine the Collateral, including the Books and Records, and make
copies of or extracts from the Books and Records, and for such purposes
enter at any reasonable time upon the property where any Collateral or
any Books and Records are located.
C. Require Guarantor to obtain Bank's prior written consent to any sale,
lease, agreement to sell or lease, or other disposition of any
inventory other than in the ordinary course of business.
Guarantor further agrees that if Borrower is in default, Bank may:
AA.Require Guarantor to segregate all collections and proceeds of the
Collateral so that they are capable of identification and deliver daily
such collections and proceeds to Bank in kind.
BB.Require Guarantor to deliver to Bank any instruments or chattel paper
constituting Collateral or proceeds of Collateral.
CC.Notify any account debtors, any buyers of the Collateral, or any other
persons of Bank's interest in the Collateral.
DD.Require Guarantor to direct all account debtors to forward all payments
and proceeds of the Collateral to a post office box under Bank's
exclusive control.
EE.Demand and collect any payments and proceeds of the Collateral. In
connection therewith Guarantor irrevocably authorizes Bank to endorse
or sign Guarantor's name on all checks, drafts, collections, receipts
and other documents, and to take possession of and open the mail
addressed to Guarantor and remove therefrom any payments and proceeds
of the Collateral.
5. DEFAULTS. The occurrence of any event described in Section 9 of the Loan
Agreement shall constitute a default hereunder.
6. BANK'S REMEDIES AFTER DEFAULT. In the event of any default Bank may do any
one or more of the following, all without demand, presentment, protest, notice
of protest, notice of intention to accelerate, notice of acceleration, or other
notice of any kind, all of which are hereby waived by Guarantor to the extent
permitted by applicable law:
A. Declare any Indebtedness immediately due and payable.
B. Enforce the security interest given hereunder pursuant to the Uniform
Commercial Code and any other applicable law.
C. Exercise a right of setoff against any deposit account of Guarantor
maintained with Bank by applying such account to the Indebtedness.
2
D. Require Guarantor to assemble the Collateral, including the Books and
Records, and make them available to Bank at a place designated by Bank.
E. Enter upon the property where any Collateral, including any Books and
Records, are located and take possession of such Collateral and such
Books and Records, and use such property (including any buildings and
facilities) and any of Guarantor's equipment, if Bank deems such use
necessary or advisable in order to take possession of, hold, preserve,
process, assemble, prepare for sale or lease, market for sale or lease,
sell or lease, or otherwise dispose of, any Collateral.
X. Xxxxx extensions and compromise or settle claims with respect to the
Collateral for less than face value, all without prior notice to
Guarantor.
G. Have a receiver appointed by any court of competent jurisdiction to
take possession of the Collateral.
H. Take such measures as Bank may deem necessary or advisable to take
possession of, hold, preserve, process, assemble, insure, prepare for
sale or lease, market for sale or lease, sell or lease, or otherwise
dispose of, any Collateral, and Guarantor hereby irrevocably
constitutes and appoints Bank as Guarantor's attorney-in-fact to
perform all acts and execute all documents in connection therewith.
7. MISCELLANEOUS.
A. Any waiver, express or implied, of any provision hereunder and any
delay or failure by Bank to enforce any provision shall not preclude
Bank from enforcing any such provision thereafter.
B. Guarantor shall, at the request of Bank, execute such other agreements,
documents, instruments, or financing statements in connection with this
Agreement as Bank may reasonably deem necessary to perfect and preserve
the security interests created by this Security Agreement.
C. All notes, security agreements, subordination agreements and other
documents executed by Guarantor or furnished to Bank in connection with
this Agreement must be in form and substance satisfactory to Bank.
D. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED ACCORDING TO THE LAWS
OF THE STATE OF TEXAS, TO THE JURISDICTION OF WHICH THE PARTIES HERETO
SUBMIT.
E. All rights and remedies herein provided are cumulative and not
exclusive of any rights or remedies otherwise provided by law. Any
single or partial exercise of any right or remedy shall not preclude
the further exercise thereof or the exercise of any other right or
remedy.
F. All terms not defined herein are used as set forth in the Uniform
Commercial Code.
G. In the event of any action by Bank to enforce this Agreement or to
protect the security interest of Bank in the Collateral, or to take
possession of, hold, preserve, process, assemble, insure, prepare for
sale or lease, market for sale or lease, sell or lease, or otherwise
dispose of, any Collateral, Guarantor agrees to pay immediately the
costs and expenses thereof, together with reasonable attorney's fees
and allocated costs for in-house legal services. Notwithstanding the
foregoing, if the Indebtedness was extended primarily for the purchase
of one or more motor vehicles (other than a heavy commercial vehicle),
the expense for which the Guarantor shall be liable pursuant to this
section 7 (g) shall not exceed the following: all amounts actually
incurred by the Bank as court costs; attorneys' fees assessed by a
court; and the reasonable cost actually expended for repossessing,
storing, preparing for sale, or selling any Collateral.
8. NO ORAL AGREEMENTS. THIS WRITTEN SECURITY AGREEMENT REPRESENTS THE FINAL
AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
[The remainder of this page is intentionally left blank.]
3
9. SIGNATURES
This document is executed by Guarantor as of June 26, 1998.
LENDER: GUARANTOR:
BANK OF AMERICA TEXAS, N.A. OYO INSTRUMENTS, INC.
By: /s/ XXXXXX X. XXXXX By: /s/ XXXXXX X. XXXXXXXX
Xxxxxx X. Xxxxx, Vice President Xxxxxx X. XxXxxxxx, CFO
ADDRESS WHERE NOTICES TO THE BANK ADDRES WHERE NOTICES TO THE
ARE TO BE SENT: GUARANTOR ARE TO BE SENT:
Bank of America Texas, N.A. 0000 Xxxx Xxxx Xxxx, Xxxxx 00
Houston Commercial Lending, #2552 Xxxxxxx, Xxxxx 00000
000 Xxxx Xxxxxx, Xxx. 0000
Xxxxxxx, Xxxxx 00000
4
BANK OF AMERICA
SECURITY AGREEMENT
(RECEIVABLES AND INVENTORY)
1. THE SECURITY. The undersigned Concord Technologies, Inc. ("Guarantor") hereby
assigns and grants to Bank of America Texas, N.A. ("Bank") a security interest
in the following described property ("Collateral"):
A. All of the following, whether now owned or hereafter acquired by
Guarantor: accounts, contract rights, chattel paper, instruments,
deposit accounts and general intangibles.
B. All inventory now owned or hereafter acquired by Guarantor. C. All
negotiable and nonnegotiable documents of title now owned or hereafter
acquired by Guarantor covering any of the above-described property.
D. All rights under contracts of insurance now owned or hereafter acquired
by Guarantor covering any of the above-described property.
E. All proceeds now owned or hereafter acquired by Guarantor of any of
the above-described property.
F. All books and records now owned or hereafter acquired by Guarantor
pertaining to any of the above-described property, including but not
limited to any computer-readable memory and any computer hardware or
software necessary to process such memory ("Books and Records").
2. THE INDEBTEDNESS. The Collateral secures and will secure all Indebtedness of
Oyo Geospace Corporation ("Borrower") to Bank. For the purposes of this
Agreement, "Indebtedness" means all loans and advances made by Bank to Borrower
and all other obligations and liabilities of Borrower to Bank, whether now
existing or hereafter incurred or created, whether voluntary or involuntary,
whether due or not due, whether absolute or contingent, with respect to that
certain Business Loan Agreement between Borrower and Bank and dated of even date
herewith (the "Loan Agreement"). Unless Guarantor shall have otherwise agreed in
writing, Indebtedness, for the purposes of this Agreement, shall not include
"consumer credit" subject to the disclosure requirements of the Federal Truth in
Lending Act or any regulations promulgated thereunder.
3. GUARANTOR'S REPRESENTATIONS, WARRANTIES, AND COVENANTS. Guarantor covenants
and warrants that unless compliance is waived by Bank in writing:
A. Guarantor is the owner of the Collateral and has good right, title and
authority to pledge, sell, transfer and assign the Collateral.
B. There is no financing statement or other document creating or
evidencing a lien now on file in any public office covering any of the
Collateral, nor is there any lien or encumbrance on any of the
Collateral.
C. Guarantor shall execute and deliver such financing statements, and do
such other things, as Bank may from time to time require in order to
perfect and preserve the security interest hereby granted and the
priority of such security interest.
D. If any amount payable under or in connection with any of the Collateral
shall become evidenced by any promissory note or other instrument, such
instrument shall be immediately pledged to Bank hereunder and Guarantor
shall deliver to Bank such instrument, duly endorsed in a manner
satisfactory to Bank.
E. Guarantor will properly preserve the Collateral; defend the Collateral
against any adverse claims and demands; and keep accurate Books and
Records.
F. Guarantor has notified Bank in writing of, and will notify Bank in
writing prior to any change in, the locations of (i) Guarantor's place
of business or Guarantor's chief executive office if Guarantor has more
than one place of business, and (ii) any Collateral, including the
Books and Records.
G. Guarantor will notify Bank in writing prior to any change in
Guarantor's name, identity or business structure.
H. Guarantor will maintain and keep in force insurance covering the
Collateral as required by the Loan Agreement. INSURANCE IS REQUIRED IN
CONNECTION WITH THE INDEBTEDNESS SECURED BY THIS SECURITY AGREEMENT.
THE GUARANTOR SHALL HAVE THE OPTION OF FURNISHING THE REQUIRED
INSURANCE EITHER THROUGH EXISTING POLICIES OF INSURANCE OWNED OR
CONTROLLED BY THE GUARANTOR OR OF PROCURING AND FURNISHING EQUIVALENT
INSURANCE COVERAGES THROUGH ANY INSURANCE COMPANY AUTHORIZED TO
TRANSACT BUSINESS IN TEXAS.
1
I. Guarantor has not granted and will not grant any security interest in
any of the Collateral except to Bank, and will keep the Collateral free
of all liens, claims, security interests and encumbrances of any kind
or nature except the security interest of Bank.
J. Guarantor will not sell, lease, agree to sell or lease, or otherwise
dispose of, or remove from Guarantor's place of business (i) any
inventory except in the ordinary course of business as heretofore
conducted by Guarantor, or (ii) any other Collateral except with the
prior written consent of Bank.
K. Guarantor will promptly notify Bank in writing of any event which
affects the value of the Collateral, the ability of Guarantor or Bank
to dispose of the Collateral, or the rights and remedies of Bank in
relation thereto, including, but not limited to, the levy of any legal
process against any Collateral and the adoption of any marketing order,
arrangement or procedure affecting the Collateral, whether governmental
or otherwise.
L. If any Collateral is or becomes the subject of any registration
certificate or negotiable document of title, including any warehouse
receipt or xxxx of lading, Guarantor shall immediately deliver such
document to Bank.
M. Until Bank exercises its rights to make collection, Guarantor will
diligently collect all Collateral.
4. ADDITIONAL OPTIONAL REQUIREMENTS. Guarantor agrees that Bank may at its
option at any time, whether or not Borrower is in default:
A. Require Guarantor to deliver to Bank (i) copies of or extracts from the
Books and Records, and (ii) information on any contracts or other
matters affecting the Collateral.
B. Examine the Collateral, including the Books and Records, and make
copies of or extracts from the Books and Records, and for such purposes
enter at any reasonable time upon the property where any Collateral or
any Books and Records are located.
C. Require Guarantor to obtain Bank's prior written consent to any sale,
lease, agreement to sell or lease, or other disposition of any
inventory other than in the ordinary course of business.
Guarantor further agrees that if Borrower is in default, Bank may:
AA.Require Guarantor to segregate all collections and proceeds of the
Collateral so that they are capable of identification and deliver daily
such collections and proceeds to Bank in kind.
BB.Require Guarantor to deliver to Bank any instruments or chattel paper
constituting Collateral or proceeds of Collateral.
CC.Notify any account debtors, any buyers of the Collateral, or any other
persons of Bank's interest in the Collateral.
DD.Require Guarantor to direct all account debtors to forward all payments
and proceeds of the Collateral to a post office box under Bank's
exclusive control.
EE.Demand and collect any payments and proceeds of the Collateral. In
connection therewith Guarantor irrevocably authorizes Bank to endorse
or sign Guarantor's name on all checks, drafts, collections, receipts
and other documents, and to take possession of and open the mail
addressed to Guarantor and remove therefrom any payments and proceeds
of the Collateral.
5. DEFAULTS. The occurrence of any event described in Section 9 of the Loan
Agreement shall constitute a default hereunder.
6. BANK'S REMEDIES AFTER DEFAULT. In the event of any default Bank may do any
one or more of the following, all without demand, presentment, protest, notice
of protest, notice of intention to accelerate, notice of acceleration, or other
notice of any kind, all of which are hereby waived by Guarantor to the extent
permitted by applicable law:
A. Declare any Indebtedness immediately due and payable.
B. Enforce the security interest given hereunder pursuant to the Uniform
Commercial Code and any other applicable law.
C. Exercise a right of setoff against any deposit account of Guarantor
maintained with Bank by applying such account to the Indebtedness.
2
D. Require Guarantor to assemble the Collateral, including the Books and
Records, and make them available to Bank at a place designated by Bank.
E. Enter upon the property where any Collateral, including any Books and
Records, are located and take possession of such Collateral and such
Books and Records, and use such property (including any buildings and
facilities) and any of Guarantor's equipment, if Bank deems such use
necessary or advisable in order to take possession of, hold, preserve,
process, assemble, prepare for sale or lease, market for sale or lease,
sell or lease, or otherwise dispose of, any Collateral.
X. Xxxxx extensions and compromise or settle claims with respect to the
Collateral for less than face value, all without prior notice to
Guarantor.
G. Have a receiver appointed by any court of competent jurisdiction to
take possession of the Collateral.
H. Take such measures as Bank may deem necessary or advisable to take
possession of, hold, preserve, process, assemble, insure, prepare for
sale or lease, market for sale or lease, sell or lease, or otherwise
dispose of, any Collateral, and Guarantor hereby irrevocably
constitutes and appoints Bank as Guarantor's attorney-in-fact to
perform all acts and execute all documents in connection therewith.
7. MISCELLANEOUS.
A. Any waiver, express or implied, of any provision hereunder and any
delay or failure by Bank to enforce any provision shall not preclude
Bank from enforcing any such provision thereafter.
B. Guarantor shall, at the request of Bank, execute such other agreements,
documents, instruments, or financing statements in connection with this
Agreement as Bank may reasonably deem necessary to perfect and preserve
the security interests created by this Security Agreement.
C. All notes, security agreements, subordination agreements and other
documents executed by Guarantor or furnished to Bank in connection with
this Agreement must be in form and substance satisfactory to Bank.
D. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED ACCORDING TO THE LAWS
OF THE STATE OF TEXAS, TO THE JURISDICTION OF WHICH THE PARTIES HERETO
SUBMIT.
E. All rights and remedies herein provided are cumulative and not
exclusive of any rights or remedies otherwise provided by law. Any
single or partial exercise of any right or remedy shall not preclude
the further exercise thereof or the exercise of any other right or
remedy.
F. All terms not defined herein are used as set forth in the Uniform
Commercial Code.
G. In the event of any action by Bank to enforce this Agreement or to
protect the security interest of Bank in the Collateral, or to take
possession of, hold, preserve, process, assemble, insure, prepare for
sale or lease, market for sale or lease, sell or lease, or otherwise
dispose of, any Collateral, Guarantor agrees to pay immediately the
costs and expenses thereof, together with reasonable attorney's fees
and allocated costs for in-house legal services. Notwithstanding the
foregoing, if the Indebtedness was extended primarily for the purchase
of one or more motor vehicles (other than a heavy commercial vehicle),
the expense for which the Guarantor shall be liable pursuant to this
section 7 (g) shall not exceed the following: all amounts actually
incurred by the Bank as court costs; attorneys' fees assessed by a
court; and the reasonable cost actually expended for repossessing,
storing, preparing for sale, or selling any Collateral.
8. NO ORAL AGREEMENTS. THIS WRITTEN SECURITY AGREEMENT REPRESENTS THE FINAL
AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
[The remainder of this page is intentionally left blank.]
3
9. SIGNATURES
This document is executed by Guarantor as of June 26, 1998.
LENDER: GUARANTOR:
BANK OF AMERICA TEXAS, N.A. CONCORD TECHNOLOGIES, INC.
By: /s/ XXXXXX X. XXXXX By: /s/ XXXXXX X. XXXXXXXX
Xxxxxx X. Xxxxx, Vice President Xxxxxx X. XxXxxxxx, CFO
ADDRESS WHERE NOTICES TO THE BANK ADDRESS WHERE NOTICES TO THE
ARE TO BE SENT: GUARANTOR ARE TO BE SENT:
Bank of America Texas, N.A. 1830 Xxxxxxx
Xxxxxxx Commercial Lending, #2552 Xxxxxxx, Xxxxx 00000-0000
000 Xxxx Xxxxxx, Xxx. 0000
Xxxxxxx, Xxxxx 00000
4
BANK OF AMERICA
SECURITY AGREEMENT
(RECEIVABLES AND INVENTORY)
1. THE SECURITY. The undersigned 5404330 and More Royalties Company
("Guarantor") hereby assigns and grants to Bank of America Texas, N.A. ("Bank")
a security interest in the following described property ("Collateral"):
A. All of the following, whether now owned or hereafter acquired by
Guarantor: accounts, contract rights, chattel paper, instruments,
deposit accounts and general intangibles.
B. All inventory now owned or hereafter acquired by Guarantor. C. All
negotiable and nonnegotiable documents of title now owned or hereafter
acquired by Guarantor covering any of the above-described property.
D. All rights under contracts of insurance now owned or hereafter acquired
by Guarantor covering any of the above-described property.
E. All proceeds now owned or hereafter acquired by Guarantor of any of
the above-described property.
F. All books and records now owned or hereafter acquired by Guarantor
pertaining to any of the above-described property, including but not
limited to any computer-readable memory and any computer hardware or
software necessary to process such memory ("Books and Records").
2. THE INDEBTEDNESS. The Collateral secures and will secure all Indebtedness of
Oyo Geospace Corporation ("Borrower") to Bank. For the purposes of this
Agreement, "Indebtedness" means all loans and advances made by Bank to Borrower
and all other obligations and liabilities of Borrower to Bank, whether now
existing or hereafter incurred or created, whether voluntary or involuntary,
whether due or not due, whether absolute or contingent, with respect to that
certain Business Loan Agreement between Borrower and Bank and dated of even date
herewith (the "Loan Agreement"). Unless Guarantor shall have otherwise agreed in
writing, Indebtedness, for the purposes of this Agreement, shall not include
"consumer credit" subject to the disclosure requirements of the Federal Truth in
Lending Act or any regulations promulgated thereunder.
3. GUARANTOR'S REPRESENTATIONS, WARRANTIES, AND COVENANTS. Guarantor covenants
and warrants that unless compliance is waived by Bank in writing:
A. Guarantor is the owner of the Collateral and has good right, title and
authority to pledge, sell, transfer and assign the Collateral.
B. There is no financing statement or other document creating or
evidencing a lien now on file in any public office covering any of the
Collateral, nor is there any lien or encumbrance on any of the
Collateral.
C. Guarantor shall execute and deliver such financing statements, and do
such other things, as Bank may from time to time require in order to
perfect and preserve the security interest hereby granted and the
priority of such security interest.
D. If any amount payable under or in connection with any of the Collateral
shall become evidenced by any promissory note or other instrument, such
instrument shall be immediately pledged to Bank hereunder and Guarantor
shall deliver to Bank such instrument, duly endorsed in a manner
satisfactory to Bank.
E. Guarantor will properly preserve the Collateral; defend the Collateral
against any adverse claims and demands; and keep accurate Books and
Records.
F. Guarantor has notified Bank in writing of, and will notify Bank in
writing prior to any change in, the locations of (i) Guarantor's place
of business or Guarantor's chief executive office if Guarantor has more
than one place of business, and (ii) any Collateral, including the
Books and Records.
G. Guarantor will notify Bank in writing prior to any change in
Guarantor's name, identity or business structure.
H. Guarantor will maintain and keep in force insurance covering the
Collateral as required by the Loan Agreement. INSURANCE IS REQUIRED IN
CONNECTION WITH THE INDEBTEDNESS SECURED BY THIS SECURITY AGREEMENT.
THE GUARANTOR SHALL HAVE THE OPTION OF FURNISHING THE REQUIRED
INSURANCE EITHER THROUGH EXISTING POLICIES OF INSURANCE OWNED OR
CONTROLLED BY THE GUARANTOR OR OF PROCURING AND FURNISHING EQUIVALENT
INSURANCE COVERAGES THROUGH ANY INSURANCE COMPANY AUTHORIZED TO
TRANSACT BUSINESS IN TEXAS.
1
I. Guarantor has not granted and will not grant any security interest in
any of the Collateral except to Bank, and will keep the Collateral free
of all liens, claims, security interests and encumbrances of any kind
or nature except the security interest of Bank.
J. Guarantor will not sell, lease, agree to sell or lease, or otherwise
dispose of, or remove from Guarantor's place of business (i) any
inventory except in the ordinary course of business as heretofore
conducted by Guarantor, or (ii) any other Collateral except with the
prior written consent of Bank.
K. Guarantor will promptly notify Bank in writing of any event which
affects the value of the Collateral, the ability of Guarantor or Bank
to dispose of the Collateral, or the rights and remedies of Bank in
relation thereto, including, but not limited to, the levy of any legal
process against any Collateral and the adoption of any marketing order,
arrangement or procedure affecting the Collateral, whether governmental
or otherwise.
L. If any Collateral is or becomes the subject of any registration
certificate or negotiable document of title, including any warehouse
receipt or xxxx of lading, Guarantor shall immediately deliver such
document to Bank.
M. Until Bank exercises its rights to make collection, Guarantor will
diligently collect all Collateral.
4. ADDITIONAL OPTIONAL REQUIREMENTS. Guarantor agrees that Bank may at its
option at any time, whether or not Borrower is in default:
A. Require Guarantor to deliver to Bank (i) copies of or extracts from the
Books and Records, and (ii) information on any contracts or other
matters affecting the Collateral.
B. Examine the Collateral, including the Books and Records, and make
copies of or extracts from the Books and Records, and for such purposes
enter at any reasonable time upon the property where any Collateral or
any Books and Records are located.
C. Require Guarantor to obtain Bank's prior written consent to any sale,
lease, agreement to sell or lease, or other disposition of any
inventory other than in the ordinary course of business.
Guarantor further agrees that if Borrower is in default, Bank may:
AA.Require Guarantor to segregate all collections and proceeds of the
Collateral so that they are capable of identification and deliver daily
such collections and proceeds to Bank in kind.
BB.Require Guarantor to deliver to Bank any instruments or chattel paper
constituting Collateral or proceeds of Collateral.
CC.Notify any account debtors, any buyers of the Collateral, or any other
persons of Bank's interest in the Collateral.
DD.Require Guarantor to direct all account debtors to forward all payments
and proceeds of the Collateral to a post office box under Bank's
exclusive control.
EE.Demand and collect any payments and proceeds of the Collateral. In
connection therewith Guarantor irrevocably authorizes Bank to endorse
or sign Guarantor's name on all checks, drafts, collections, receipts
and other documents, and to take possession of and open the mail
addressed to Guarantor and remove therefrom any payments and proceeds
of the Collateral.
5. DEFAULTS. The occurrence of any event described in Section 9 of the Loan
Agreement shall constitute a default hereunder.
6. BANK'S REMEDIES AFTER DEFAULT. In the event of any default Bank may do any
one or more of the following, all without demand, presentment, protest, notice
of protest, notice of intention to accelerate, notice of acceleration, or other
notice of any kind, all of which are hereby waived by Guarantor to the extent
permitted by applicable law:
A. Declare any Indebtedness immediately due and payable.
B. Enforce the security interest given hereunder pursuant to the Uniform
Commercial Code and any other applicable law.
2
C. Exercise a right of setoff against any deposit account of Guarantor
maintained with Bank by applying such account to the Indebtedness.
D. Require Guarantor to assemble the Collateral, including the Books and
Records, and make them available to Bank at a place designated by Bank.
E. Enter upon the property where any Collateral, including any Books and
Records, are located and take possession of such Collateral and such
Books and Records, and use such property (including any buildings and
facilities) and any of Guarantor's equipment, if Bank deems such use
necessary or advisable in order to take possession of, hold, preserve,
process, assemble, prepare for sale or lease, market for sale or lease,
sell or lease, or otherwise dispose of, any Collateral.
X. Xxxxx extensions and compromise or settle claims with respect to the
Collateral for less than face value, all without prior notice to
Guarantor.
G. Have a receiver appointed by any court of competent jurisdiction to
take possession of the Collateral.
H. Take such measures as Bank may deem necessary or advisable to take
possession of, hold, preserve, process, assemble, insure, prepare for
sale or lease, market for sale or lease, sell or lease, or otherwise
dispose of, any Collateral, and Guarantor hereby irrevocably
constitutes and appoints Bank as Guarantor's attorney-in-fact to
perform all acts and execute all documents in connection therewith.
7. MISCELLANEOUS.
A. Any waiver, express or implied, of any provision hereunder and any
delay or failure by Bank to enforce any provision shall not preclude
Bank from enforcing any such provision thereafter.
B. Guarantor shall, at the request of Bank, execute such other agreements,
documents, instruments, or financing statements in connection with this
Agreement as Bank may reasonably deem necessary to perfect and preserve
the security interests created by this Security Agreement.
C. All notes, security agreements, subordination agreements and other
documents executed by Guarantor or furnished to Bank in connection with
this Agreement must be in form and substance satisfactory to Bank.
D. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED ACCORDING TO THE LAWS
OF THE STATE OF TEXAS, TO THE JURISDICTION OF WHICH THE PARTIES HERETO
SUBMIT.
E. All rights and remedies herein provided are cumulative and not
exclusive of any rights or remedies otherwise provided by law. Any
single or partial exercise of any right or remedy shall not preclude
the further exercise thereof or the exercise of any other right or
remedy.
F. All terms not defined herein are used as set forth in the Uniform
Commercial Code.
G. In the event of any action by Bank to enforce this Agreement or to
protect the security interest of Bank in the Collateral, or to take
possession of, hold, preserve, process, assemble, insure, prepare for
sale or lease, market for sale or lease, sell or lease, or otherwise
dispose of, any Collateral, Guarantor agrees to pay immediately the
costs and expenses thereof, together with reasonable attorney's fees
and allocated costs for in-house legal services. Notwithstanding the
foregoing, if the Indebtedness was extended primarily for the purchase
of one or more motor vehicles (other than a heavy commercial vehicle),
the expense for which the Guarantor shall be liable pursuant to this
section 7 (g) shall not exceed the following: all amounts actually
incurred by the Bank as court costs; attorneys' fees assessed by a
court; and the reasonable cost actually expended for repossessing,
storing, preparing for sale, or selling any Collateral.
8. NO ORAL AGREEMENTS. THIS WRITTEN SECURITY AGREEMENT REPRESENTS THE FINAL
AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
[The remainder of this page is intentionally left blank.]
3
9. SIGNATURES
This document is executed by Guarantor as of June 26, 1998.
LENDER: GUARANTOR:
BANK OF AMERICA TEXAS, N.A. 5404330 AND MORE ROYALTIES COMPANY
By: /s/ XXXXXX X. XXXXX By: /s/ XXXX X. XXXXX
Xxxxxx X. Xxxxx, Vice President Xxxx X. Xxxxx, President
ADDRESS WHERE NOTICES TO THE BANK ADDRESS WHERE NOTICES TO THE
ARE TO BE SENT: GUARANTOR ARE TO BE SENT:
Bank of America Texas, N.A. 000 Xxxxxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx Commercial Lending, #2552 Xxx Xxxxx, Xxxxxx 00000
000 Xxxx Xxxxxx, Xxx. 0000
Xxxxxxx, Xxxxx 00000
4
BANK OF AMERICA
SECURITY AGREEMENT
(RECEIVABLES AND INVENTORY)
1. THE SECURITY. The undersigned Geo Space Corporation ("Guarantor") hereby
assigns and grants to Bank of America Texas, N.A. ("Bank") a security interest
in the following described property ("Collateral"):
A. All of the following, whether now owned or hereafter acquired by
Guarantor: accounts, contract rights, chattel paper, instruments,
deposit accounts and general intangibles.
B. All inventory now owned or hereafter acquired by Guarantor. C. All
negotiable and nonnegotiable documents of title now owned or hereafter
acquired by Guarantor covering any of the above-described property.
D. All rights under contracts of insurance now owned or hereafter acquired
by Guarantor covering any of the above-described property.
E. All proceeds now owned or hereafter acquired by Guarantor of any of the
above-described property.
F. All books and records now owned or hereafter acquired by Guarantor
pertaining to any of the above-described property, including but not
limited to any computer-readable memory and any computer hardware or
software necessary to process such memory ("Books and Records").
2. THE INDEBTEDNESS. The Collateral secures and will secure all Indebtedness of
Oyo Geospace Corporation ("Borrower") to Bank. For the purposes of this
Agreement, "Indebtedness" means all loans and advances made by Bank to Borrower
and all other obligations and liabilities of Borrower to Bank, whether now
existing or hereafter incurred or created, whether voluntary or involuntary,
whether due or not due, whether absolute or contingent, with respect to that
certain Business Loan Agreement between Borrower and Bank and dated of even date
herewith (the "Loan Agreement"). Unless Guarantor shall have otherwise agreed in
writing, Indebtedness, for the purposes of this Agreement, shall not include
"consumer credit" subject to the disclosure requirements of the Federal Truth in
Lending Act or any regulations promulgated thereunder.
3. GUARANTOR'S REPRESENTATIONS, WARRANTIES, AND COVENANTS. Guarantor covenants
and warrants that unless compliance is waived by Bank in writing:
A. Guarantor is the owner of the Collateral and has good right, title and
authority to pledge, sell, transfer and assign the Collateral.
B. There is no financing statement or other document creating or
evidencing a lien now on file in any public office covering any of the
Collateral, nor is there any lien or encumbrance on any of the
Collateral.
C. Guarantor shall execute and deliver such financing statements, and do
such other things, as Bank may from time to time require in order to
perfect and preserve the security interest hereby granted and the
priority of such security interest.
D. If any amount payable under or in connection with any of the Collateral
shall become evidenced by any promissory note or other instrument, such
instrument shall be immediately pledged to Bank hereunder and Guarantor
shall deliver to Bank such instrument, duly endorsed in a manner
satisfactory to Bank.
E. Guarantor will properly preserve the Collateral; defend the Collateral
against any adverse claims and demands; and keep accurate Books and
Records.
F. Guarantor has notified Bank in writing of, and will notify Bank in
writing prior to any change in, the locations of (i) Guarantor's place
of business or Guarantor's chief executive office if Guarantor has more
than one place of business, and (ii) any Collateral, including the
Books and Records.
G. Guarantor will notify Bank in writing prior to any change in
Guarantor's name, identity or business structure.
H. Guarantor will maintain and keep in force insurance covering the
Collateral as required by the Loan Agreement. INSURANCE IS REQUIRED IN
CONNECTION WITH THE INDEBTEDNESS SECURED BY THIS SECURITY AGREEMENT.
THE GUARANTOR SHALL HAVE THE OPTION OF FURNISHING THE REQUIRED
INSURANCE EITHER THROUGH EXISTING POLICIES OF INSURANCE OWNED OR
CONTROLLED BY THE GUARANTOR OR OF PROCURING AND FURNISHING EQUIVALENT
INSURANCE COVERAGES THROUGH ANY INSURANCE COMPANY AUTHORIZED TO
TRANSACT BUSINESS IN TEXAS.
1
I. Guarantor has not granted and will not grant any security interest in
any of the Collateral except to Bank, and will keep the Collateral free
of all liens, claims, security interests and encumbrances of any kind
or nature except the security interest of Bank.
J. Guarantor will not sell, lease, agree to sell or lease, or otherwise
dispose of, or remove from Guarantor's place of business (i) any
inventory except in the ordinary course of business as heretofore
conducted by Guarantor, or (ii) any other Collateral except with the
prior written consent of Bank.
K. Guarantor will promptly notify Bank in writing of any event which
affects the value of the Collateral, the ability of Guarantor or Bank
to dispose of the Collateral, or the rights and remedies of Bank in
relation thereto, including, but not limited to, the levy of any legal
process against any Collateral and the adoption of any marketing order,
arrangement or procedure affecting the Collateral, whether governmental
or otherwise.
L. If any Collateral is or becomes the subject of any registration
certificate or negotiable document of title, including any warehouse
receipt or xxxx of lading, Guarantor shall immediately deliver such
document to Bank.
M. Until Bank exercises its rights to make collection, Guarantor will
diligently collect all Collateral.
4. ADDITIONAL OPTIONAL REQUIREMENTS. Guarantor agrees that Bank may at its
option at any time, whether or not Borrower is in default:
A. Require Guarantor to deliver to Bank (i) copies of or extracts from the
Books and Records, and (ii) information on any contracts or other
matters affecting the Collateral.
B. Examine the Collateral, including the Books and Records, and make
copies of or extracts from the Books and Records, and for such purposes
enter at any reasonable time upon the property where any Collateral or
any Books and Records are located.
C. Require Guarantor to obtain Bank's prior written consent to any sale,
lease, agreement to sell or lease, or other disposition of any
inventory other than in the ordinary course of business.
Guarantor further agrees that if Borrower is in default, Bank may:
AA.Require Guarantor to segregate all collections and proceeds of the
Collateral so that they are capable of identification and deliver daily
such collections and proceeds to Bank in kind.
BB.Require Guarantor to deliver to Bank any instruments or chattel paper
constituting Collateral or proceeds of Collateral.
CC.Notify any account debtors, any buyers of the Collateral, or any other
persons of Bank's interest in the Collateral.
DD.Require Guarantor to direct all account debtors to forward all payments
and proceeds of the Collateral to a post office box under Bank's
exclusive control.
EE.Demand and collect any payments and proceeds of the Collateral. In
connection therewith Guarantor irrevocably authorizes Bank to endorse
or sign Guarantor's name on all checks, drafts, collections, receipts
and other documents, and to take possession of and open the mail
addressed to Guarantor and remove therefrom any payments and proceeds
of the Collateral.
5. DEFAULTS. The occurrence of any event described in Section 9 of the Loan
Agreement shall constitute a default hereunder.
6. BANK'S REMEDIES AFTER DEFAULT. In the event of any default Bank may do any
one or more of the following, all without demand, presentment, protest, notice
of protest, notice of intention to accelerate, notice of acceleration, or other
notice of any kind, all of which are hereby waived by Guarantor to the extent
permitted by applicable law:
A. Declare any Indebtedness immediately due and payable.
B. Enforce the security interest given hereunder pursuant to the Uniform
Commercial Code and any other applicable law.
2
C. Exercise a right of setoff against any deposit account of Guarantor
maintained with Bank by applying such account to the Indebtedness.
D. Require Guarantor to assemble the Collateral, including the Books and
Records, and make them available to Bank at a place designated by Bank.
E. Enter upon the property where any Collateral, including any Books and
Records, are located and take possession of such Collateral and such
Books and Records, and use such property (including any buildings and
facilities) and any of Guarantor's equipment, if Bank deems such use
necessary or advisable in order to take possession of, hold, preserve,
process, assemble, prepare for sale or lease, market for sale or lease,
sell or lease, or otherwise dispose of, any Collateral.
X. Xxxxx extensions and compromise or settle claims with respect to the
Collateral for less than face value, all without prior notice to
Guarantor.
G. Have a receiver appointed by any court of competent jurisdiction to
take possession of the Collateral.
H. Take such measures as Bank may deem necessary or advisable to take
possession of, hold, preserve, process, assemble, insure, prepare for
sale or lease, market for sale or lease, sell or lease, or otherwise
dispose of, any Collateral, and Guarantor hereby irrevocably
constitutes and appoints Bank as Guarantor's attorney-in-fact to
perform all acts and execute all documents in connection therewith.
7. MISCELLANEOUS.
A. Any waiver, express or implied, of any provision hereunder and any
delay or failure by Bank to enforce any provision shall not preclude
Bank from enforcing any such provision thereafter.
B. Guarantor shall, at the request of Bank, execute such other agreements,
documents, instruments, or financing statements in connection with this
Agreement as Bank may reasonably deem necessary to perfect and preserve
the security interests created by this Security Agreement.
C. All notes, security agreements, subordination agreements and other
documents executed by Guarantor or furnished to Bank in connection with
this Agreement must be in form and substance satisfactory to Bank.
D. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED ACCORDING TO THE LAWS
OF THE STATE OF TEXAS, TO THE JURISDICTION OF WHICH THE PARTIES HERETO
SUBMIT.
E. All rights and remedies herein provided are cumulative and not
exclusive of any rights or remedies otherwise provided by law. Any
single or partial exercise of any right or remedy shall not preclude
the further exercise thereof or the exercise of any other right or
remedy.
F. All terms not defined herein are used as set forth in the Uniform
Commercial Code.
G. In the event of any action by Bank to enforce this Agreement or to
protect the security interest of Bank in the Collateral, or to take
possession of, hold, preserve, process, assemble, insure, prepare for
sale or lease, market for sale or lease, sell or lease, or otherwise
dispose of, any Collateral, Guarantor agrees to pay immediately the
costs and expenses thereof, together with reasonable attorney's fees
and allocated costs for in-house legal services. Notwithstanding the
foregoing, if the Indebtedness was extended primarily for the purchase
of one or more motor vehicles (other than a heavy commercial vehicle),
the expense for which the Guarantor shall be liable pursuant to this
section 7 (g) shall not exceed the following: all amounts actually
incurred by the Bank as court costs; attorneys' fees assessed by a
court; and the reasonable cost actually expended for repossessing,
storing, preparing for sale, or selling any Collateral.
8. NO ORAL AGREEMENTS. THIS WRITTEN SECURITY AGREEMENT REPRESENTS THE FINAL
AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
[The remainder of this page is intentionally left blank.]
3
9. SIGNATURES
This document is executed by Guarantor as of June 26, 1998.
LENDER: GUARANTOR:
BANK OF AMERICA TEXAS, N.A. GEO SPACE CORPORATION
By:/s/ XXXXXX X. XXXXX By: /s/ XXXXXX X. XXXXXXXX
Xxxxxx X. Xxxxx, Vice President Xxxxxx X. XxXxxxxx, CFO
ADDRESS WHERE NOTICES TO THE BANK ADDRESS WHERE NOTICES TO THE
ARE TO BE SENT: GUARANTOR ARE TO BE SENT:
Bank of America Texas, N.A. 0000 Xxxxx Xxxxxxx Xxxx
Xxxxxxx Commercial Lending, #2552 Xxxxxxx, Xxxxx 00000
000 Xxxx Xxxxxx, Xxx. 0000
Xxxxxxx, Xxxxx 00000
4
BANK OF AMERICA
SECURITY AGREEMENT
(RECEIVABLES AND INVENTORY)
1. THE SECURITY. The undersigned Houston Geophysical Products, Inc.
("Guarantor") hereby assigns and grants to Bank of America Texas, N.A. ("Bank")
a security interest in the following described property ("Collateral"):
A. All of the following, whether now owned or hereafter acquired by
Guarantor: accounts, contract rights, chattel paper, instruments,
deposit accounts and general intangibles.
B. All inventory now owned or hereafter acquired by Guarantor. C. All
negotiable and nonnegotiable documents of title now owned or hereafter
acquired by Guarantor covering any of the above-described property.
D. All rights under contracts of insurance now owned or hereafter acquired
by Guarantor covering any of the above-described property.
E. All proceeds now owned or hereafter acquired by Guarantor of any of the
above-described property.
F. All books and records now owned or hereafter acquired by Guarantor
pertaining to any of the above-described property, including but not
limited to any computer-readable memory and any computer hardware or
software necessary to process such memory ("Books and Records").
2. THE INDEBTEDNESS. The Collateral secures and will secure all Indebtedness of
Oyo Geospace Corporation ("Borrower") to Bank. For the purposes of this
Agreement, "Indebtedness" means all loans and advances made by Bank to Borrower
and all other obligations and liabilities of Borrower to Bank, whether now
existing or hereafter incurred or created, whether voluntary or involuntary,
whether due or not due, whether absolute or contingent, with respect to that
certain Business Loan Agreement between Borrower and Bank and dated of even date
herewith (the "Loan Agreement"). Unless Guarantor shall have otherwise agreed in
writing, Indebtedness, for the purposes of this Agreement, shall not include
"consumer credit" subject to the disclosure requirements of the Federal Truth in
Lending Act or any regulations promulgated thereunder.
3. GUARANTOR'S REPRESENTATIONS, WARRANTIES, AND COVENANTS. Guarantor covenants
and warrants that unless compliance is waived by Bank in writing:
A. Guarantor is the owner of the Collateral and has good right, title and
authority to pledge, sell, transfer and assign the Collateral.
B. There is no financing statement or other document creating or
evidencing a lien now on file in any public office covering any of the
Collateral, nor is there any lien or encumbrance on any of the
Collateral.
C. Guarantor shall execute and deliver such financing statements, and do
such other things, as Bank may from time to time require in order to
perfect and preserve the security interest hereby granted and the
priority of such security interest.
D. If any amount payable under or in connection with any of the Collateral
shall become evidenced by any promissory note or other instrument, such
instrument shall be immediately pledged to Bank hereunder and Guarantor
shall deliver to Bank such instrument, duly endorsed in a manner
satisfactory to Bank.
E. Guarantor will properly preserve the Collateral; defend the Collateral
against any adverse claims and demands; and keep accurate Books and
Records.
F. Guarantor has notified Bank in writing of, and will notify Bank in
writing prior to any change in, the locations of (i) Guarantor's place
of business or Guarantor's chief executive office if Guarantor has more
than one place of business, and (ii) any Collateral, including the
Books and Records.
G. Guarantor will notify Bank in writing prior to any change in
Guarantor's name, identity or business structure.
H. Guarantor will maintain and keep in force insurance covering the
Collateral as required by the Loan Agreement. INSURANCE IS REQUIRED IN
CONNECTION WITH THE INDEBTEDNESS SECURED BY THIS SECURITY AGREEMENT.
THE GUARANTOR SHALL HAVE THE OPTION OF FURNISHING THE REQUIRED
INSURANCE EITHER THROUGH EXISTING POLICIES OF INSURANCE OWNED OR
CONTROLLED BY THE GUARANTOR OR OF PROCURING AND FURNISHING EQUIVALENT
INSURANCE COVERAGES THROUGH ANY INSURANCE COMPANY AUTHORIZED TO
TRANSACT BUSINESS IN TEXAS.
1
I. Guarantor has not granted and will not grant any security interest in
any of the Collateral except to Bank, and will keep the Collateral free
of all liens, claims, security interests and encumbrances of any kind
or nature except the security interest of Bank.
J. Guarantor will not sell, lease, agree to sell or lease, or otherwise
dispose of, or remove from Guarantor's place of business (i) any
inventory except in the ordinary course of business as heretofore
conducted by Guarantor, or (ii) any other Collateral except with the
prior written consent of Bank.
K. Guarantor will promptly notify Bank in writing of any event which
affects the value of the Collateral, the ability of Guarantor or Bank
to dispose of the Collateral, or the rights and remedies of Bank in
relation thereto, including, but not limited to, the levy of any legal
process against any Collateral and the adoption of any marketing order,
arrangement or procedure affecting the Collateral, whether governmental
or otherwise.
L. If any Collateral is or becomes the subject of any registration
certificate or negotiable document of title, including any warehouse
receipt or xxxx of lading, Guarantor shall immediately deliver such
document to Bank.
M. Until Bank exercises its rights to make collection, Guarantor will
diligently collect all Collateral.
4. ADDITIONAL OPTIONAL REQUIREMENTS. Guarantor agrees that Bank may at its
option at any time, whether or not Borrower is in default:
A. Require Guarantor to deliver to Bank (i) copies of or extracts from the
Books and Records, and (ii) information on any contracts or other
matters affecting the Collateral.
B. Examine the Collateral, including the Books and Records, and make
copies of or extracts from the Books and Records, and for such purposes
enter at any reasonable time upon the property where any Collateral or
any Books and Records are located.
C. Require Guarantor to obtain Bank's prior written consent to any sale,
lease, agreement to sell or lease, or other disposition of any
inventory other than in the ordinary course of business.
Guarantor further agrees that if Borrower is in default, Bank may:
AA.Require Guarantor to segregate all collections and proceeds of the
Collateral so that they are capable of identification and deliver daily
such collections and proceeds to Bank in kind.
BB.Require Guarantor to deliver to Bank any instruments or chattel paper
constituting Collateral or proceeds of Collateral.
CC.Notify any account debtors, any buyers of the Collateral, or any other
persons of Bank's interest in the Collateral.
DD.Require Guarantor to direct all account debtors to forward all payments
and proceeds of the Collateral to a post office box under Bank's
exclusive control.
EE.Demand and collect any payments and proceeds of the Collateral. In
connection therewith Guarantor irrevocably authorizes Bank to endorse
or sign Guarantor's name on all checks, drafts, collections, receipts
and other documents, and to take possession of and open the mail
addressed to Guarantor and remove therefrom any payments and proceeds
of the Collateral.
5. DEFAULTS. The occurrence of any event described in Section 9 of the Loan
Agreement shall constitute a default hereunder.
6. BANK'S REMEDIES AFTER DEFAULT. In the event of any default Bank may do any
one or more of the following, all without demand, presentment, protest, notice
of protest, notice of intention to accelerate, notice of acceleration, or other
notice of any kind, all of which are hereby waived by Guarantor to the extent
permitted by applicable law:
A. Declare any Indebtedness immediately due and payable.
B. Enforce the security interest given hereunder pursuant to the Uniform
Commercial Code and any other applicable law.
2
C. Exercise a right of setoff against any deposit account of Guarantor
maintained with Bank by applying such account to the Indebtedness.
D. Require Guarantor to assemble the Collateral, including the Books and
Records, and make them available to Bank at a place designated by Bank.
E. Enter upon the property where any Collateral, including any Books and
Records, are located and take possession of such Collateral and such
Books and Records, and use such property (including any buildings and
facilities) and any of Guarantor's equipment, if Bank deems such use
necessary or advisable in order to take possession of, hold, preserve,
process, assemble, prepare for sale or lease, market for sale or lease,
sell or lease, or otherwise dispose of, any Collateral.
X. Xxxxx extensions and compromise or settle claims with respect to the
Collateral for less than face value, all without prior notice to
Guarantor.
G. Have a receiver appointed by any court of competent jurisdiction to
take possession of the Collateral.
H. Take such measures as Bank may deem necessary or advisable to take
possession of, hold, preserve, process, assemble, insure, prepare for
sale or lease, market for sale or lease, sell or lease, or otherwise
dispose of, any Collateral, and Guarantor hereby irrevocably
constitutes and appoints Bank as Guarantor's attorney-in-fact to
perform all acts and execute all documents in connection therewith.
7. MISCELLANEOUS.
A. Any waiver, express or implied, of any provision hereunder and any
delay or failure by Bank to enforce any provision shall not preclude
Bank from enforcing any such provision thereafter.
B. Guarantor shall, at the request of Bank, execute such other agreements,
documents, instruments, or financing statements in connection with this
Agreement as Bank may reasonably deem necessary to perfect and preserve
the security interests created by this Security Agreement.
C. All notes, security agreements, subordination agreements and other
documents executed by Guarantor or furnished to Bank in connection with
this Agreement must be in form and substance satisfactory to Bank.
D. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED ACCORDING TO THE LAWS
OF THE STATE OF TEXAS, TO THE JURISDICTION OF WHICH THE PARTIES HERETO
SUBMIT.
E. All rights and remedies herein provided are cumulative and not
exclusive of any rights or remedies otherwise provided by law. Any
single or partial exercise of any right or remedy shall not preclude
the further exercise thereof or the exercise of any other right or
remedy.
F. All terms not defined herein are used as set forth in the Uniform
Commercial Code.
G. In the event of any action by Bank to enforce this Agreement or to
protect the security interest of Bank in the Collateral, or to take
possession of, hold, preserve, process, assemble, insure, prepare for
sale or lease, market for sale or lease, sell or lease, or otherwise
dispose of, any Collateral, Guarantor agrees to pay immediately the
costs and expenses thereof, together with reasonable attorney's fees
and allocated costs for in-house legal services. Notwithstanding the
foregoing, if the Indebtedness was extended primarily for the purchase
of one or more motor vehicles (other than a heavy commercial vehicle),
the expense for which the Guarantor shall be liable pursuant to this
section 7 (g) shall not exceed the following: all amounts actually
incurred by the Bank as court costs; attorneys' fees assessed by a
court; and the reasonable cost actually expended for repossessing,
storing, preparing for sale, or selling any Collateral.
8. NO ORAL AGREEMENTS. THIS WRITTEN SECURITY AGREEMENT REPRESENTS THE FINAL
AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
[The remainder of this page is intentionally left blank.]
3
9. SIGNATURES
This document is executed by Guarantor as of June 26, 1998.
LENDER: GUARANTOR:
BANK OF AMERICA TEXAS, N.A. HOUSTON GEOPHYSICAL PRODUCTS, INC.
By: /s/ XXXXXX X. XXXXX By: /s/ XXXXXX X. XXXXXXXX
Xxxxxx X. Xxxxx, Vice President Xxxxxx X. XxXxxxxx, CFO
ADDRESS WHERE NOTICES TO THE BANK ADDRESS WHERE NOTICES TO THE
ARE TO BE SENT: GUARANTOR ARE TO BE SENT:
Bank of America Texas, N.A. 000 Xxxxx Xxxxx Xxxx
Xxxxxxx Commercial Lending, #2552 Xxxxxxx, Xxxxx 00000
000 Xxxx Xxxxxx, Xxx. 0000
Xxxxxxx, Xxxxx 00000
4
