[FIRST INTERSTATE BANK LETTERHEAD]
September ______, 1995
Manifold Valve Services, Inc.
P. O. Box 1009
Jennings, Louisiana 70546
Re: $500,000.00 Master Revolving Line of Credit Note of even
date herewith executed by Manifold Valve Services, Inc., a
Delaware corporation ("Borrower") payable to the order of
First Interstate Bank of Texas, N.A. ("Bank").
Gentlemen:
This letter evidences the agreement ("Agreement") by and between
Xxxxxxxx, whose address for all purposes is as set forth above, and Bank, whose
address for all purposes is 0000 Xxxx Xxx Xxxx., Xxxxxxx, Xxxxx 00000.
ARTICLE I
DEFINITIONS
Section 1.01 CERTAIN DEFINITIONS. In addition to the defined terms set
forth elsewhere herein, the following terms shall mean:
"ACCOUNT DEBTOR" shall mean the person or entity obligated on any account
owing to Borrower.
"AGREEMENT" shall mean this Agreement.
"BUSINESS DAY" shall mean a day on which business is transacted by
national banks in Houston, Texas.
"CAPITAL EXPENDITURES" shall mean the aggregate of all expenditures
(whether paid in cash or accrued as liabilities and including
expenditures for capitalized lease obligations) by Borrower that are
required by generally accepted accounting principles to be included in or
reflected by the property, plant, or equipment or similar fixed asset
accounts, or in intangible accounts subject to amortization in the
balance sheet of Borrower.
"COMMITMENT" shall mean the sum of $500,000.00.
"CURRENT ASSETS" shall mean all assets of Borrower that would be
reflected as current assets on a balance sheet of Borrower prepared in
accordance with generally accepted accounting principles.
"CURRENT LIABILITIES" shall mean any liabilities of Borrower which would
be reflected as current liabilities on a balance sheet of Borrower
prepared in accordance with generally accepted accounting principles.
"ELIGIBLE ACCOUNTS" shall mean an account which is and shall at all times
continue to be acceptable to Bank in all respects and in which Bank has a
first priority, perfected security interest. In general, except as fixed
and revised from time to time by Bank in writing, an account which
continuously meets each of the following requirements is an Eligible
Account:
(a) It is lawfully owned by Xxxxxxxx and Xxxxxxxx has the right
to transfer any interest therein;
(b) If it arises from the sale or lease of goods, and the goods
have been shipped or delivered to the person or entity which is
obligated on the account;
(c) If it arises from the performance of services, such
services have been fully rendered;
(d) It is a valid obligation of the Account Debtor, enforceable
in accordance with its terms and is free and clear of all liens,
security interests, restrictions, set-offs, adverse claims,
prepayments and the like other than the security interest of Bank;
(e) It is evidenced by an invoice rendered to the Account
Debtor;
(f) It has not aged more than ninety (90) days from the due
date of the invoice of such account;
(g) It is not owed by an Account Debtor closely affiliated
with, related to, a subsidiary of, employed by or an officer of
Borrower, or domiciled outside of the United States of America,
unless such foreign account is accepted by Bank in writing; and
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(h) It is not subject to any retainage, the result of a sale on
a bill and hold basis, a contra account, a U.S. government or
agency account or a consignment account.
As to any one Account Debtor, if more than twenty-five (25%)
percent of the accounts owed by such Account Debtor to Borrower are
unpaid more than one hundred fifteen (115) days from the date of invoice,
then none of the accounts of such Account Debtor owing to Borrower shall
be considered Eligible Accounts.
In addition, as to any one Account Debtor, if the total of
accounts owed by such Account Debtor to Borrower exceed ten percent (10%)
of the Borrower's total accounts, then none of the accounts of such
Account Debtor in excess of ten per cent (10%) of Borrower's total
accounts shall be considered as Eligible Accounts; provided, however,
such ten per cent (10%) limitation shall be increased to twenty per cent
(20%) for accounts owed by Diamond Offshore Co., Xxxxxxxx & Xxxxx Co.,
Sedco Drilling Co., Hercules Drilling, Sundowner Offshore Services, Noble
Drilling and Ensco Offshore and Global Marine Drilling Co. to Borrower
such that only the accounts of each of those Account Debtor in excess of
twenty per cent (20%) of Borrower's total accounts shall not qualify as
Eligible Accounts.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended, and all applicable regulations adopted thereunder by the
Internal Revenue Service and the Department of Labor.
"EVENT OF DEFAULT" shall mean any of the Events of Default contained in
Section 6.01 hereof.
"INDEBTEDNESS" with respect to Borrower shall mean, at any date, all
liabilities which would be reflected on a balance sheet of Borrower
prepared as of such date in accordance with generally accepted accounting
principles, except for Subordinated Debt.
"INTANGIBLE ASSETS" shall mean those assets of Borrower which are (i)
good will, including any amounts (however designated on such balance
sheet) representing the cost of acquisition of subsidiaries in excess of
underlying tangible assets, unless an appraisal of such assets made by a
reputable firm of appraisers at the time of such acquisition indicates
sufficient value to cover such excess, (ii) any amount by which
investments in persons or entities appearing on the asset side of such
balance sheet exceed the proportionate share of the person or entity and
its subsidiaries in the book value of the assets of such persons or
entities, and (iii) patents, trademarks, copyrights, deferred charges
(including, but not limited to unamortized discount and expenses,
organizational expenses, experimental and developmental expenses, but
excluding prepaid expense), intangibles and other similar assets.
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"LOAN FORMULA CERTIFICATE AND CERTIFICATE OF NO DEFAULT" shall mean the
certificate regarding Eligible Accounts, which certificate is to be in
the form of EXHIBIT "A" attached hereto.
"LOCK BOX" shall mean an arrangement by which Account Debtors are
instructed by the Borrower to mail payments owing on accounts to Borrower
to a post office box mailing address designated by the Bank. Such post
office box mailing address to be under the sole and exclusive control of
the Bank.
"NOTE" shall mean the Master Revolving Line of Credit Note in the
principal amount of $500,000.00 delivered pursuant to Article II hereof
and all extensions, renewals, modifications and rearrangements and
enlargements thereof.
"OBLIGATIONS" shall mean the outstanding principal balance and accrued
unpaid interest owing on the Note and any and all other indebtedness,
liabilities and obligations whatsoever of Borrower to Bank under the Note
or the Security Instruments or otherwise, whether direct or indirect,
absolute or contingent, due or to become due, and whether now existing or
hereafter arising, and howsoever evidenced or acquired, whether joint or
several, and whether evidenced by note, draft, acceptance, guaranty, open
account, letter of credit, surety agreement or otherwise, it being
contemplated by the parties hereto that Borrower may become indebted to
Bank in further sum or sums.
"PLAN" shall mean any pension plan that is covered by Title IV of ERISA
maintained by Xxxxxxxx, or any plan to which the Borrower is required to
contribute on behalf of its employees.
"REVOLVING CREDIT ADVANCE" shall mean an advance to Borrower or
Xxxxxxxx's account funded under the Note.
"REVOLVING LOAN LIMIT" shall mean at any time an amount equal to the sum
of 80% of Eligible Accounts.
"SECURITY INSTRUMENTS" shall mean all documents executed in connection
with or as security for the Note and the Obligations, including, without
limitation, the instruments referred to in Article III hereof.
"SUBORDINATED DEBT" shall mean any liability of Borrower calculated in
accordance with generally accepted accounting principles, heretofore or
hereafter incurred, and which by the express terms of a subordination
agreement in form and substance reasonably satisfactory to Bank is
validly and effectively made subordinate to payment of the Note and the
Obligations.
"TANGIBLE ASSETS" shall mean, as of any date, the aggregate book value of
the assets of Borrower that would be reflected on a balance sheet
prepared as of such date in
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accordance with generally accepted accounting principles, less the
aggregate book value of Intangible Assets at such date.
"TANGIBLE NET WORTH" shall mean, as of any date, the amount by which
Tangible Assets as of such date exceed the Indebtedness.
ARTICLE II
THE LOANS
Section 2.01 REVOLVING LINE OF CREDIT.
(a) Bank has approved and extended to Borrower a $500,000.00 revolving
line of credit evidenced by the Note. Borrower will utilize such
revolving line of credit by making a request for Revolving Credit
Advances in accordance with Section 2.02 hereof in order to provide
Borrower with working capital. Upon the execution of this Agreement an
initial advance shall be made to payoff the outstanding principal balance
owing on the Master Revolving Line of Credit Note in the amount of
$500,000.00 dated February 7, 1994, executed by Manifold Valve Services,
Ltd. payable to Bank. Manifold Valve Services, Ltd. was a limited
partnership that has been purchased by the Borrower. At any time there
exists any Event of Default, Bank shall not be obligated to make any
Revolving Credit Advances under the Note. Subject to such limitations
and upon the terms and conditions of this Agreement, Bank may lend to
Borrower, and Borrower may borrow from Bank an aggregate amount at any
one time outstanding not to exceed $500,000.00; provided however,
aggregate Revolving Credit Advances shall not exceed the Revolving Loan
Limit. During the period from the date of this Agreement to and
including the maturity date under the Note, Borrower may borrow, repay
and reborrow hereunder. Each Revolving Credit Advance shall be evidenced
by the Note and shall automatically increase the principal balance owed
on the Note.
(b) Subject to the terms hereof and the limitations set forth above,
Xxxx agrees to advance up to an aggregate $500,000.00 in Revolving Credit
Advances provided that the Revolving Credit Advances are used for working
capital for Borrower or other uses approved in writing by Bank prior to
the making of the Revolving Credit Advance by Bank.
Section 2.02 MAKING OF ADVANCES. Each request by Borrower for a
Revolving Credit Advance under this Article II may be made by verbal request by
Xxxxxxxx, provided that Borrower has submitted the required Loan Formula
Certificates and Certificates of No Default and has otherwise complied with the
terms of this Agreement. All Revolving Credit Advances when funded shall be
deposited into any lawful account requested by Xxxxxxxx and Borrower shall pay
all costs associated with such deposits.
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Section 2.03 REVOLVING CREDIT ADVANCES OVER REVOLVING LOAN LIMIT. Bank
shall have no obligation to advance and Borrower shall not be entitle to any
Revolving Credit Advance that would cause all of the Revolving Credit Advances
under the Note to exceed the Revolving Loan Limit. If, at any time prior to the
maturity date under the Note, the outstanding Revolving Credit Advances under
the Note exceed the Revolving Loan Limit, Borrower shall immediately prepay on
the Note such amount as necessary to eliminate such excess.
Section 2.04 CONDITIONS TO MAKING ADVANCES. The obligation of Bank to
make Revolving Credit Advances is subject to the following conditions precedent:
(a) the Bank's having received and approved a current Loan Formula
Certificate and Certificate of No Default as required herein;
(b) that no Event of Default has occurred and is continuing, and no
event has occurred and is continuing which with the giving of notice or
passage of time, or both would be an Event of Default;
(c) that no material adverse change has occurred in the business or
financial condition of Borrower since the date of this Agreement;
(d) that no proceeding or case under the United States Bankruptcy Code
shall have been commenced by or against Borrower; and
(e) Bank shall have received any other instruments deemed reasonably
necessary by Bank.
Section 2.05 PREPAYMENTS. The Borrower may, without notice, premium or
penalty, prepay the Note at any time, in whole or in part, as provided in the
Note.
ARTICLE III
COLLATERAL
Section 3.01 SECURITY INSTRUMENTS. As security for the payment of the
Note and Obligations and performance of Xxxxxxxx's obligations under this
Agreement, Xxxxxxxx has delivered or will deliver to Bank the following:
(a) a Commercial Security Agreement in form satisfactory to Bank
granting Bank a first priority security interest in all of Borrower's
assets; and
(b) all other instruments necessary to give Bank a perfected security
interest and/or lien in and to the assets of Borrower used as collateral
and security for the Note.
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The Note and all amounts which may become due and owing by Borrower to
Bank hereunder are secured by the Security Instruments.
Section 3.02 CURING DEFECTS. It is agreed that Xxxxxxxx will cure any
title defects in and to all interest and rights covered by the Security
Instruments as necessary to provide Bank the security interest in the property
therein described. In the event any such defects are not cured by Borrower
within forty-five (45) days after notice thereof by Bank to Borrower, Borrower
authorizes Bank to retain legal counsel to cure same and to charge all related
reasonable costs and fees to Borrower, or, at Bank's option, to declare the Note
to be immediately due and payable and any cost and fees incurred to cure any
such defects shall be payable on demand, shall become a part of the principal
indebtedness under the Note, and shall be secured by the Security Instruments.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.01 REPRESENTATIONS AND WARRANTIES. To induce Bank to enter
into this Agreement, Borrower represents and warrants to Bank as follows:
(a) Borrower is not in default with respect to any of its existing
indebtedness to any party, and the performance of Borrower's obligations
under this Agreement, or under any document or instruments referred to
herein, will not result in a default or in the creation or imposition of
any security interest in, or lien or encumbrance upon, any of the assets
of Borrower under any other contract, agreement or instrument to which
Borrower is a party or by which Borrower or its property is bound;
(b) This Agreement, the Note, the Security Instruments and any other
documents executed in connection with the Note, when executed and
delivered, will be valid, binding and enforceable in accordance with
their respective terms;
(c) All financial statements or other information of Borrower which
have been submitted heretofore to Bank are materially complete and
correct, have been prepared in accordance with generally accepted
accounting principles and fairly reflect the financial condition of
Borrower for the period or periods indicated. No material adverse change
has occurred in the condition of Borrower, financial or otherwise,
subsequent to the date or dates of any such financial statements or other
information;
(d) There are no actions, suits, or proceedings pending or threatened
against or affecting Borrower which involve the possibility of any
judgment or liability which, in the opinion of management, may materially
and adversely affect the business or assets of Borrower or its ability to
carry on its business as now conducted;
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(e) Borrower is not in default under any order, writ, injunction, or
decree of any court or governmental agency which may result in a material
adverse change in the business, operations, properties, or assets of
Borrower;
(f) No part of the proceeds received by Borrower on the Note will be
used, directly or indirectly, for the purpose of purchasing or carrying,
or the payment in whole or in part, of indebtedness which was incurred
for the purpose of purchasing or carrying, any margin stock, as such term
is defined in Section 221.3 of Regulation U of the Board of Governors of
the Federal Reserve System, 12 C.F.R., Part 221. No part of the proceeds
received by Xxxxxxxx hereunder will be used for any purpose which
violates Regulation X of the Board of Governors of the Federal Reserve
System, 12 C.F.R., Part 224;
(g) No approvals or consents of any government or administrative
agency having jurisdiction over Borrower are necessary or required to
permit Borrower to enter into this Agreement, the Note or the Security
Instruments;
(h) Borrower has and will continue to have good and indefeasible
title, free and clear of all liens, security interests and encumbrances,
to all of the collateral securing the Note;
(i) Borrower is in compliance in all material respects with the
applicable provisions of ERISA, and to the best of the Borrower's
knowledge, no "reportable event", as such term is defined in Section 4043
of ERISA, has occurred with respect to any Plan of the Borrower;
(j) Borrower is not an "investment company" or a company "controlled"
by an "investment company," within the meaning of the Investment Company
Act of 1940, as amended; and
(k) The Borrower is duly formed and existing under the laws of the
State of Delaware, all franchise and other taxes required to maintain the
existence of Borrower have been paid when due and no such taxes are
currently delinquent; no proceedings are pending for the forfeiture of
Borrower's Certificate of Incorporation or for its dissolution, voluntary
or involuntary; Borrower's principal office is located in Jennings,
Louisiana; and to its knowledge the Borrower is fully qualified,
authorized and in good standing to do business in all jurisdictions in
which the nature of its business requires it to be qualified and
authorized to do business.
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ARTICLE V
COVENANTS
Section 5.01 BORROWER'S AFFIRMATIVE COVENANTS. Borrower covenants and
agrees that until the full and final payment of the Note, and any and all
renewals, extensions, modifications and rearrangements thereof, and of any and
all other amounts secured or to be secured by the Security Instruments that:
(a) Borrower shall promptly furnish to Bank, within forty-five (45)
days of the end of each calendar quarter, (i) in-house prepared unaudited
financial statements of Borrower; (ii) an aging and listing of all
accounts receivable and accounts payable of Borrower, and (iii) a Loan
Formula Certificate and Certificate of No Default, all of such items to
be signed and certified by an officer of Borrower;
(b) Borrower shall furnish to Bank, within forty-five (45) days after
the end of each fiscal year of Borrower, in-house prepared unaudited
annual financial statements of Borrower, such financial statements to be
signed and certified by an officer of Borrower;
(c) Borrower shall furnish to Bank, within ninety (90) days after the
end of each fiscal year of Borrower, audited annual consolidated
financial statements and 10-K filings on its parent company, Catalyst
Energy Services, Inc., prepared by a Certified Public Accountant in form
and content reasonably acceptable to Bank;
(d) Borrower shall furnish to Bank a copy of Catalyst Energy Services,
Inc.'s Federal Income Tax Return within sixty (60) days of filing with
the Internal Revenue Service;
(e) Borrower shall furnish from time to time such further information
regarding the business affairs, accounts receivable and other financial
conditions of Borrower as Bank may reasonably request. All financial
statements furnished under this Agreement shall be prepared in accordance
with generally accepted accounting principles consistently followed
throughout the period involved;
(f) Borrower shall promptly inform Bank of a breach of any warranty or
representation made herein, or in the Security Instruments, when same
occurs, said warranties and representations to survive the execution
hereof;
(g) Borrower shall receive and hold all inventory of Borrower for the
sole purposes of storing, utilizing, leasing and/or selling the same at
Borrower's existing places of business or such other places as may be
satisfactory to Bank;
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(h) Borrower shall maintain, after the payment of any dividends to
Catalyst Energy Services, Inc., and payments on the Note dated January 6,
1992, in the original principal amount of $1,080,000.00 payable to
Catalyst Capital Partners I, Ltd., a ratio of Indebtedness to Tangible
Net Worth of not more than 1.50 to 1.00, at all times from the date
hereof;
(i) Borrower shall maintain, after the payment of any dividends to
Catalyst Energy Services, Inc., and payments on the Note dated January 6,
1992, in the original principal amount of $1,080,000.00 payable to
Catalyst Capital Partners I, Ltd., a ratio of Current Assets to Current
Liabilities of not less than 1.75 to 1.00 at all times from the date
hereof;
(j) Borrower shall maintain, after the payment of any dividends to
Catalyst Energy Services, Inc., and payments on the Note dated January 6,
1992, in the original principal amount of $1,080,000.00 payable to
Catalyst Capital Partners I, Ltd., a Total Fixed Charge Coverage Ratio of
at least 1.50 to 1.00 at all times from the date hereof. Total Fixed
Charge Coverage Ratio shall mean the sum of (a) net income, plus (b)
depreciation, amortization and other non-cash charges, plus (c) deferred
Federal Income Taxes, plus (d) interest expense divided by the sum of (x)
principal payments made on current maturities of long term debt, plus (y)
interest expense. This covenant shall be tested on a quarterly basis and
will be calculated on a twelve (12) month rolling average;
(k) Borrower shall permit any officer, employee or agent of Bank to
visit Xxxxxxxx's offices and warehouse facilities to inspect the
collateral which secures the Note and to examine and make copies of the
Borrower's financial records and records of accounts, and discuss the
affairs, finances and accounts of the Borrower with Xxxxxxxx's officers,
accountants and auditors on a annual basis, at the cost and expense of
Xxxxxxxx, provided such expenses are reasonable and customary, and at
such other times as Bank may deem necessary at Bank's expense;
(l) Borrower shall, upon the occurrence of an Event of Default, enter
into an agreement with Bank, in form and content acceptable to Bank, to
establish a Lock Box;
(m) Borrower shall preserve and maintain its existence, rights and
authority to do business in all states in which it conducts its business;
(n) Borrower shall keep all of its records and books of accounts in
accordance with generally accepted accounting principles consistently
applied reflecting all transactions of Borrower;
(o) Borrower will maintain with financially sound and reputable
insurers, reasonably acceptable to Bank, insurance with respect to its
assets, facilities and business against such liabilities, casualties,
risks and contingencies as is customary for its business
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naming the Bank as loss payee with respect to any insurance covering
collateral securing the loan hereunder, and will, upon execution of this
Agreement and at such other times as Bank may request, provide
satisfactory evidence of such insurance; and
(p) Borrower shall (i) if requested by the Bank, then promptly after
the filing thereof with the United States Secretary of Labor or the
Pension Benefit Guaranty Corporation, it shall furnish copies of each
annual and other report with respect to each Plan or any trust created
thereunder, and (ii) immediately upon becoming aware of the occurrence of
any "reportable event", as such term is defined in Section 4043 of ERISA,
or of any "prohibited transaction", as such term is defined in Section
4975 of the Internal Revenue Code of 1954, as amended, in connection with
any Plan or trust created thereunder, it shall furnish to Bank a notice
signed by its President or a principal financial officer specifying the
nature thereof, what action it is taking or proposes to take with respect
thereof and, when known, any action taken by the Internal Revenue Service
with respect thereto.
Section 5.02 BORROWER'S NEGATIVE COVENANTS. Borrower covenants and
agrees that until the full and final payment of the Note, and any and all
renewals, extensions, modifications and rearrangements thereof, and of any and
all other amounts secured or to be secured by the Security Instruments that
Borrower shall NOT, without the prior written consent of Bank, which consent may
be withheld by Bank in its reasonable discretion, do any of the following:
(a) compensate any officer, director, or employee of Borrower other
than reasonable and customary compensation for services, or consolidate,
or merge with any other company or entity, or give any preferential
treatment, make any advance, directly or indirectly, by way of loan,
gift, bonus, or otherwise, to any company or entity directly or
indirectly, controlling or affiliated with or controlled by Borrower, or
any other company or entity, or to any officer, director, partner or
employee of Borrower, or any such company or entity, except the payment
of dividends to Catalyst Energy Services, Inc., shall be allowed;
(b) permit any Plan maintained by it to:
(i) engage in any "prohibited transaction" as such term is
defined in Section 4975 of the Internal Revenue Code of
1954, as amended; or
(ii) incur any "accumulated funding deficiency" as such term is
defined in Section 302 of ERISA; or
(iii) terminate any such Plan in a manner which could result in
the imposition of a lien on its property pursuant to
Section 4068 of ERISA.
(c) incur, create, assume or permit to exist any Indebtedness, debt or
liability except (i) the Note; (ii) Indebtedness incurred in the ordinary
course of Xxxxxxxx's business
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in connection with normal trade obligations; (iii) any Indebtedness
previously made or contemplated to be made in the future by Bank to
Borrower; and (iv) any Indebtedness described in the Security
Instruments, without written approval by Bank, in its sole discretion;
(d) incur, create, assume or permit to exist any mortgage, pledge,
security interest, lien, charge or other encumbrance (except those
created in the Security Instruments) of any nature whatsoever on any of
its assets, now owned or hereafter acquired which are now or hereafter
pledged to Bank under the Security Instruments or otherwise to secure the
Note or any Obligations;
(e) guarantee or otherwise in any way become contingently liable or
responsible for obligations of any person or entity whether by agreement
to purchase the indebtedness of any other person or entity or agreement
for the furnishing of any other funds to any other person or entity
through the purchase of goods, supplies or services for the purpose of
paying or discharging the indebtedness of any other person or entity or
otherwise, except for the endorsement of negotiable instruments by
Borrower in the ordinary course of business for collection or deposit;
(f) unless otherwise approved in writing by Bank in its sole
discretion, sell, lease, transfer or otherwise dispose of all or any part
of its properties or assets except in the ordinary course of business; or
consolidate with or merge into any other entity or permit another entity
to merge into it or acquire all or substantially all of the properties or
assets of any other person or entity; or make any substantial change in
its capitalization; or
(g) incur any Capital Expenditures which exceed $500,000.00 in the
aggregate during any fiscal year of Borrower.
ARTICLE VI
EVENT OF DEFAULT AND REMEDIES
Section 6.01 EVENTS OF DEFAULT. Any of the following events shall be
considered an "Event of Default" under this Agreement:
(a) Default on the Note, any of the Obligations or any Indebtedness of
Borrower;
(b) Default on the Security Instruments, or any other document
executed in connection with this Agreement;
(c) The discovery by Bank that any representation or warranty made by
Borrower in this Agreement, the Security Instruments, or any other
instrument securing or
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executed in connection with the Note is false, misleading or erroneous in
any material respect as of the date such representation or warranty is
made;
(d) The discovery by Bank that any representation, statement
(including financial statements), certificate, or data furnished or made
or to be furnished or made by Borrower hereunder or under the Security
Instruments, or any other instrument securing or executed in connection
with the Note is false, misleading or erroneous in any material respect,
as of the date of which the facts therein set forth were stated or
certified;
(e) Default in the performance of any of the covenants contained
herein or in any document executed in connection herewith; and
(f) Borrower shall (i) discontinue business or (ii) make a general
assignment for the benefit of creditors or (iii) apply for or consent to
the appointment of a receiver, a trustee or liquidator for itself or for
all or a substantial part of its assets, or (iv) be adjudicated a
bankrupt or insolvent, or (v) file a voluntary petition in bankruptcy or
file a petition or answer seeking reorganization or rearrangement of
creditors or seeking to take advantage of any other law (whether federal
or state) relating to relief for debtors, or admit (by answer, by
default, or otherwise) the material allegations of a petition filed
against it in any bankruptcy, reorganization, rearrangement, insolvency
or other proceedings (whether federal or state) relating to relief for
debtors, or (vi) suffer or permit to continue unstayed and in effect for
ninety (90) consecutive days any judgment, decree or order, entered by a
court of competent jurisdiction, which approves a petition seeking
reorganization of it or appoints a receiver, trustee or liquidator of it
or of all or a substantial part of any of its assets, or (vii) fail to
pay prior to delinquency, any taxes owed to the State of Texas, the
United States of America, or any other entity having jurisdiction over
Borrower or any of its assets, provided, however, Borrower may contest in
good faith the payment of such taxes, as long as Borrower complies with
all applicable laws and maintains the capacity to pay such taxes
reasonably satisfactory to the Bank and provided further that Borrower
shall pay such taxes (a) if required by law in order to contest taxes,
(b) prior to such time that the rights of Bank in the property covered by
the Security Instruments become jeopardized in Bank's reasonable opinion,
and (c) prior to any final judgment being taken against Borrower or
Borrower's assets because of such non-payment.
Section 6.02 REMEDIES. Upon the happening of any Event of Default and
at any time thereafter (i) Bank, at its option, may declare the entire
outstanding principal balance of the Note and all accrued and unpaid interest
thereon and any and all other indebtedness of Borrower to Bank to be immediately
due and payable without notice of default, presentment, demand, protest, notice
of protest, notice of intention to accelerate the maturity thereof, notice of
the exercise of the intention to accelerate the maturity thereof, or other
notice whatsoever, all of which are hereby expressly waived by Xxxxxxxx; (ii)
all obligations of Bank hereunder, if any, including, but not limited to the
making, continuing or renewing of any loan hereunder,
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shall terminate unless and until same are reinstated in writing by Bank; (iii)
Bank may exercise any or all remedies it has at law, in the Note, in this
Agreement or in the Security Instruments; and (iv) the Bank may exercise its
rights contained in Section 6.03.
Section 6.03 LOCK BOX. Upon the happening of any Event of Default, the
Bank may require the Borrower to collect Borrower's accounts through a Bank Lock
Box account. In conjunction with said Lock Box account, the Bank shall maintain
a cash collateral account into which the finally collected accounts from Account
Debtors received in the Lock Box are deposited (the "Cash Collateral Account").
Upon an Event of Default, the Bank shall have the right to withdraw from the
Cash Collateral Account any and all sums within such Cash Collateral Account for
application on the Obligations.
Section 6.04 RIGHT OF SET-OFF. Upon the occurrence of and during the
continuance of any Event of Default referred to herein, Bank is hereby
authorized at any time and from time to time, without notice to Borrower, to
set-off and apply any and all deposits (general or special, time or demand,
provisional or final) at any time held and other indebtedness at any time owing
by Bank to or for the credit or the account of Borrower against any and all of
the Obligations of Borrower that are then due and payable, irrespective of
whether Bank shall have made any demand under this Agreement or under the Note.
Notwithstanding anything to the contrary contained herein, Bank may not exercise
any of its set-off rights contained in this Section 6.04 against any unmatured
Obligations until it has given Borrower seven (7) days notice of its intent to
exercise it's set-off rights. The rights of Bank under this Section are in
addition to other rights and remedies (including, without limitation, other
rights of set-off) which Bank may have.
Section 6.05 CROSS COLLATERALIZATION AND CROSS DEFAULT. Upon the
occurrence of any Event of Default under this Agreement or default under any
other agreement between Borrower and Bank, then it is agreed by Borrower that
the Bank shall have the right to accelerate all Obligations owing to it by
Borrower, and any collateral securing any of the Obligations of Borrower to Bank
shall act as collateral for all of the Obligations of Borrower to the Bank.
ARTICLE VII
MISCELLANEOUS
Section 7.01 NOTICES. Any notices, requests or communications hereunder
shall be in writing, and shall be delivered by actual delivery or by placing
same in the United States mails, certified mail, return receipt requested,
addressed to the party to whom directed at the address hereinabove set out. Any
such notice, request or communication shall be deemed delivered upon the earlier
to occur of placing same in the mails or upon actual delivery to the party to
whom directed.
14
Section 7.02 BINDING EFFECT. All covenants and agreements contained in
this Agreement by or on behalf of the Borrower shall bind its successors and
assigns and shall inure to the benefit of Bank and its successors and assigns.
Section 7.03 CONTINUING EFFECT. This Agreement shall remain in effect
until the Note and all other obligations of Borrower to Bank have been paid in
full.
Section 7.04 GOVERNING LAW. This Agreement shall be deemed to be a
contract made under and shall be construed and enforced in accordance with the
laws of the State of Texas.
Section 7.05 CONFLICTS. In the event of any conflict between the
provisions of this Agreement and the provisions of the Note or the Security
Instruments, the provisions of this Agreement shall control.
Section 7.06 CONSTRUCTION. Whenever used herein, the pronouns of any
gender shall include the other genders and either the singular or the plural
shall include the other as the context requires.
Section 7.07 ADDITIONAL DOCUMENTS. Xxxxxxxx agrees to execute and
deliver such other and further documents and to do and perform such other acts
as may be reasonably necessary and proper in Bank's judgment to carry out the
intention of the parties as herein expressed and to effect the purposes of this
document and the transactions referred to herein.
Section 7.08 COST AND EXPENSES. All reasonable costs, expenses, and
attorneys fees incurred in performing and complying with Xxxxxxxx's covenants
herein shall be borne by Borrower. If, in pursuance of any covenant herein
contained, Bank shall pay out any money chargeable to Borrower, or subject to
reimbursement by Borrower under the terms hereof, Borrower shall repay the same
to Bank immediately at the place where the Note is payable. The sum of each
such payment shall be added to the Note and thereafter shall form a part of the
same and shall be secured by this Agreement and the Security Instruments and by
subrogation of Bank to all the rights of the person, corporation, or body
politic receiving such payment.
Section 7.09 WAIVER. It is expressly agreed that no waiver of any
default on the part of Borrower or breach of any of the provisions of this
Agreement shall be considered a waiver of any other or subsequent default or
breach, and no delay or omission in exercising or enforcing the rights and
powers herein granted shall be construed as a waiver of such rights and powers,
and likewise no exercise or enforcement of any rights or powers hereunder shall
be held to exhaust such rights and powers, and every such right and power may be
exercised from time to time; failure by Bank to insist upon the strict
performance by Xxxxxxxx of any of the terms and provisions hereof shall not be
deemed to be a waiver of any of the terms and provisions hereof, and Bank,
notwithstanding any such failure, shall have the right thereafter to insist upon
the strict performance by Borrower of any and all of the terms and provisions of
this Agreement.
15
Section 7.10 USURY SAVINGS. It is the intention of the parties hereto
to conform strictly to the usury laws applicable to the Bank and Borrower.
Accordingly, if the transactions contemplated hereby would be usurious under
applicable law (including the laws of the United States of America and the State
of Texas), then, in that event, notwithstanding anything to the contrary in the
Note, this Agreement, the Security Instruments or any other agreement entered
into in connection with or as security for the Note, it is agreed as follows:
(i) the aggregate of all consideration which constitutes interest under law
applicable to the Bank that is contracted for, taken, reserved, charged or
received under the Note, this Agreement the Security Instruments or any other
agreement or otherwise in connection with the Note shall under no circumstances
exceed the maximum amount allowed by such applicable law, and any excess shall
be credited by the Bank on the principal amount of the Note (or, if the
principal amount of the Note shall have been paid in full, refunded by the Bank
to the Borrower); and (ii) in the event that maturity of the Note is accelerated
by reason of an election of the Bank resulting from any Event of Default under
this Agreement or otherwise, or in the event of any required or permitted
prepayment, then such consideration that constitutes interest under law
applicable to the Bank may never include more than the maximum amount allowed by
such applicable law, and excess interest, if any, provided for in the Note, the
Security Instruments, this Agreement or otherwise shall be canceled
automatically as of the date of such acceleration or prepayment and, if
theretofore paid, shall be credited by the Bank on the principal amount of the
Note (or, if the principal amount of the Note shall have been paid in full,
refunded by the Bank to the Borrower).
Section 7.11 INVALIDITY. In the event that any one or more of the
provisions contained in the Note, this Agreement or the Security Instruments
shall, for any reason, be held invalid, illegal or unenforceable in any respect,
such invalidity, illegality or unenforceability shall not affect any other
provision of the Note, this Agreement or the Security Instruments.
Section 7.12 TITLES OF ARTICLES, SECTIONS AND SUBSECTIONS. All titles
or headings to articles, sections, subsections or other divisions of this
Agreement or the exhibits hereto are only for the convenience of the parties and
shall not be construed to have any effect or meaning with respect to the other
content of such articles, sections, subsections or other divisions, such other
content being controlling as to the agreement between the parties hereto.
Section 7.13 COUNTERPARTS. This Agreement may be executed in two or
more counterparts, and it shall not be necessary that the signatures of all
parties hereto be contained on any one counterpart hereof; each counterpart
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
Section 7.14 AGREEMENT FOR BINDING ARBITRATION. The parties agree to be
bound by the terms and provisions of the current Arbitration Program of First
Interstate Bank of Texas, N.A. which is incorporated by reference herein and is
acknowledged as received by the parties, pursuant to which any and all disputes
shall be resolved by mandatory binding arbitration upon the request of any
party.
16
NOTICE: THIS DOCUMENT AND ALL OTHER DOCUMENTS RELATING TO THIS
LOAN CONSTITUTE A WRITTEN LOAN AGREEMENT WHICH 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 RELATING TO THIS LOAN.
Please indicate your agreement to the foregoing by executing this
Agreement in the space provided below.
Very truly yours,
FIRST INTERSTATE BANK OF TEXAS, N.A.
By:
-------------------------------------------
Xxxxxxx X. Xxxxxx, Assistant Vice President
AGREED AND ACCEPTED this ______ day of September, 1995.
MANIFOLD VALVE SERVICES, INC.,
a Delaware corporation
By:/s/Xxxxxx Xxxxxxx
-------------------------
Xxxxxx Xxxxxxx, President
17
EXHIBIT "A"
LOAN FORMULA CERTIFICATE AND
CERTIFICATE OF NO DEFAULT
TO: First Interstate Bank of Texas, N.A.
0000 Xxxx Xxx Xxxx.
Houston, Texas 77056
Attention: Xxxxxxx X. Xxxxxx
Gentlemen:
This Loan Formula Certificate and Certificate of No Default ("Certificate") for
the month ending ____________________, 199___, is executed and delivered by
MANIFOLD VALVE SERVICES, INC. ("Borrower") to FIRST INTERSTATE BANK OF TEXAS,
N.A. ("Bank"), pursuant to the certain Loan Agreement ("Agreement") dated
September _____, 1995, between Borrower and Bank. All terms used herein shall
have the meanings assigned to them in the Agreement.
Borrower represents and warrants to Bank that all information contained herein
is true, correct, and complete, and that the Eligible Accounts listed in item 2.
below represent the Eligible Accounts that qualify under the Agreement.
Borrower further represents and warrants to the Bank that attached hereto as
Schedule 1 is a list of the accounts showing all accounts receivable aged in 30
day intervals.
ACCOUNTS RECEIVABLE OF BORROWER:
1. Total Accounts Receivable $
------------------------
2. Eligible Accounts receivable less than 90 days old $
------------------------
BORROWING BASE:
3. 80% of Line 1 $
------------------------
4. Outstanding principal amount of the Note $
------------------------
5. Available Credit Amount [(the lesser of the
$500,000.00 or Line 2) minus Line 3] $
------------------------
FINANCIAL COVENANT COMPLIANCE REQUIRED ACTUAL
----------------------------- -------- ------
5. Indebtedness to Tangible Net Worth 1.50 to 1.00 -------------------------
6. Current Assets to Current Liabilities 1.75 to 1.00 -------------------------
7. Total Fixed Charge Coverage Ratio 1.50 to 1.00 -------------------------
Borrower further represents and warrants to Bank that no Event of Default has
occurred and is continuing and no event that, with notice or lapse of time or
both, would be an Event of Default has occurred and is continuing.
MANIFOLD VALVE SERVICES, INC.
By:
---------------------------
Name:
-------------------------
Title:
------------------------
MASTER REVOLVING LINE OF CREDIT NOTE
PAYABLE TO
FIRST INTERSTATE BANK OF TEXAS, N.A.
September ______, 1995 Houston, Texas $500,000.00
For value received, the undersigned (hereinafter called "Maker") promises
to pay to the order of FIRST INTERSTATE BANK OF TEXAS, N.A. (hereinafter called
"Bank") at its offices at 0000 XXXX XXX XXXX., XXXXXXX, XXXXX 00000, in lawful
money of the United States of America the sum of FIVE HUNDRED THOUSAND AND
NO/100 DOLLARS ($500,000.00) together with interest thereon from the date hereof
until maturity at a varying rate per annum which is THREE-QUARTERS PER CENT
(.75%) per annum (hereinafter called the "Margin Percentage") above the rate
quoted by FIRST INTERSTATE BANK OF TEXAS, N.A. from time to time as its Prime
Commercial Rate (but in no event to exceed the maximum rate of nonusurious
interest allowed from time to time by law as now in effect, or allowed by law as
may hereafter be in effect, hereinafter the "Highest Lawful Rate"), with
adjustments in such varying rate to be made on the same day as any change in
such Prime Commercial Rate. The term "Prime Commercial Rate" shall mean the
rate of interest established by Bank from time to time as a general reference
rate of interest, it being understood that many of the Bank's loans are priced
in relation to such rate but that it is not necessarily the lowest or best rate
charged to customers of the Bank.
Adjustments due to changes in the Highest Lawful Rate will be made on the
effective date of any change in the Highest Lawful Rate.
All past due principal and interest shall bear interest at the Highest
Lawful Rate from maturity until paid. Interest shall be computed on a per annum
basis of a year of 365 or 366 days, as the case may be, and for the actual
number of days (including the first but excluding the last day) elapsed.
At the option of the Bank and notwithstanding the foregoing provisions
concerning such varying rate, if at any time the sum of the Margin Percentage
plus such Prime Commercial Rate exceeds the Highest Lawful Rate, the rate of
interest to accrue on this Note shall be limited to the Highest Lawful Rate, but
if thereafter the sum of the Margin Percentage plus such Prime Commercial Rate
is less than the Highest Lawful Rate, the rate of interest to accrue on this
Note shall be the Highest Lawful Rate until the total amount of interest accrued
on this Note equals the amount of interest which would have accrued if a varying
rate per annum equal to the sum of the Margin Percentage plus such Prime
Commercial Rate had at all times been in effect.
Principal and accrued interest on this Note are due and payable as follows:
In monthly installments of interest only on the _______ day of each
month beginning October ______, 1995, with one final balloon payment
due January 7, 1997, of the entire unpaid principal balance hereof,
plus all unpaid accrued interest.
If any installment or payment of principal or interest of this Note is not
paid when due; or if Maker shall become insolvent (however such insolvency may
be evidenced); or if any proceeding, procedure or remedy supplementary to or in
enforcement of judgement shall be resorted to or commenced against Maker, or
with respect to any property of it; or if any governmental authority or any
court at the instance thereof shall take possession of any substantial part of
the property of or assume control over the affairs or operations of, or a
receiver shall be appointed for or take possession of the property of, or a writ
or order of
/s/ AC
-----------
(INITIALS)
Page 1 of 4 pages
attachment or garnishments shall be issued or made against any of the property
of Maker; or if any material indebtedness for which Maker is primarily or
secondarily liable shall not be paid when due or shall become due and payable by
acceleration of maturity thereof, or if any event or condition shall occur which
shall permit the holder of any such material indebtedness to declare it due and
payable upon the lapse of time, giving of notice or otherwise; or if Maker shall
be dissolved, wound up, liquidated or otherwise terminated, or a party to any
merger or consolidation without the written consent of Bank; or if Maker shall
sell substantially all or an integral portion of its assets without written
consent of Bank; or if Maker fails to furnish financial information reasonably
requested by Bank; or if Maker furnishes or has furnished any financial or other
information or statements which are misleading in any material respect; or if a
default occurs under any instrument now or hereafter executed in connection with
or as security for this Note; thereupon, at the option of the Bank, this Note
and any and all other indebtedness of Maker to Bank shall become and be due and
payable forthwith without demand, notice of default or of intent to accelerate
the maturity hereof, notice of nonpayment, notice of acceleration, presentment,
protest or notice of dishonor, all of which are hereby, to the extent allowed by
law, expressly waived by Maker and each other liable party.
The unpaid principal balance of this Note at any time shall be the total
amounts loaned or advanced hereunder by the holder hereof, less the amount of
payments or prepayments of principal made hereon by or for the account of Maker.
Maker may borrow, repay and reborrow, from time-to-time, prior to the maturity
hereof, up to the face amount hereof, or, up to the amount determined by any
formula set forth in any written agreement executed in connection herewith
between Maker and Bank, whichever is less. It is contemplated that by reason of
prepayments hereon there may be times when no indebtedness is owing hereunder,
but notwithstanding such occurrences, this Note shall remain valid and shall be
in full force and effect as to loans or advances made pursuant to and under the
terms of this Note subsequent to each such occurrence. All loans or advances
and all payments or prepayments made hereunder on account of principal or
interest may be endorsed (and shall so be endorsed prior to any transfer of this
Note) by the holder hereof on a schedule on the back hereof and/or on additional
schedule pages attached hereto from time-to-time by the holder hereof. In all
events, the business records of the Bank, whether computer records or otherwise,
shall be conclusive of the amount owed by Maker hereunder. In the event that
the unpaid principal amount hereof at any time, for any reason, exceeds the
maximum amount hereinabove specified, Maker covenants and agrees to pay the
excess principal amount forthwith upon demand; such excess principal amount
shall in all respects be deemed to be included among the loan or advances made
pursuant to the other terms of this Note and shall bear interest at the rates
hereinabove stated.
Advances hereunder will be made by the holder hereof pursuant to the terms
of the Letter Loan Agreement executed by Maker and Bank on even date herewith.
Any loan or advance shall be conclusively presumed to have been made under the
terms of this Note to or for the benefit of Maker when made pursuant to the
terms of such Letter Loan Agreement.
If this Note is not paid at maturity whether by acceleration or otherwise
and is placed in the hands of an attorney for collection, or suit is filed
hereon, or proceedings are had in probate, bankruptcy, receivership,
reorganization, arrangement or other legal proceedings for collection hereof,
Maker agrees to pay Bank its collection costs, including reasonable attorney's
fees. Maker is and shall be directly and primarily, jointly and severally,
liable for the payment of all sums called for hereunder, and Maker hereby
consents to and agrees to remain liable hereon regardless of any renewals,
extensions for any period or rearrangements hereof, or partial prepayments
hereon, or any release or substitution or security herefor, in whole or in part,
with or without notice, from time to time, before or after maturity.
As security for the punctual payment and performance of the Note, and as
part of the security herefor, Maker hereby grants to Bank a security interest
in, and a pledge and assignment of, any and all money, property, deposit
accounts, accounts, securities, documents, chattel paper, claims, demands,
instruments, items or deposits of the Maker, and each of them,
/s/ AC
-----------
(INITIALS)
Page 2 of 4 Pages
or to which any of them is a party, now held or hereafter coming within Bank's
custody or control, including without limitation, all certificates of deposit
and other depository accounts, whether such have matured or the exercise of
Bank's rights results in loss of interest or principal or other penalty on such
deposits, but excluding deposits subject to tax penalties if assigned. Without
prior notice to or demand upon the Maker, Bank may exercise its rights granted
above at any time when a default has occurred. Bank's rights and remedies under
this paragraph shall be in addition to and cumulative of any other rights or
remedies at law and equity, including, without limitation, any rights of set-off
to which Bank may be entitled.
This Note is additionally secured by all assets of Maker.
It is the intention of Maker and Bank to conform strictly to applicable
usury laws. Accordingly, if the transactions contemplated hereby would be
usurious under applicable law, then, in that event, notwithstanding anything to
the contrary in any agreement entered into in connection with or as security for
this Note, it is agreed as follows: (i) the aggregate of all consideration which
constitutes interest under applicable law that is taken, reserved, contracted
for, charged or received under this Note or under any of the other aforesaid
agreements or otherwise in connection with this Note shall under no
circumstances exceed the maximum amount of interest allowed by applicable law,
and any excess shall be credited on this Note by the holder hereof (or, if this
Note shall have been paid in full, refunded to Maker); and (ii) in the event
that maturity of this Note is accelerated by reason of an election by the holder
hereof resulting from any default hereunder or otherwise, or in the event of any
required or permitted prepayment, then such consideration that constitutes
interest may never include more than the maximum amount allowed by applicable
law, and excess interest, if any, provided for in this Note or otherwise shall
be canceled automatically as of the date of such acceleration or prepayment and,
if theretofore prepaid, shall be credited on this Note (or if this Note shall
have been paid in full, refunded to Maker).
Maker reserves the option of prepaying the principal of this Note, in whole
or in part, at any time after the date hereof without penalty. At the option of
Bank, it may demand (at any time at or after prepayment) all accrued and unpaid
interest with respect to the principal amount prepaid through the date of
prepayment. All payments made hereunder, whether designated as payments of
principal or interest, shall be applied to the principal or interest of this
Note or to expenses provided for herein, or any combination of the foregoing, as
directed by the holder of this Note at its option.
This Note shall be construed under and governed by the laws of the State of
Texas (including applicable federal law), but in any event Tex. Rev. Civ. Stat.
Xxx. art. 5069 ch. 15 (which regulates certain revolving credit loan accounts
and revolving triparty accounts) shall not apply to the loan evidenced by this
Note.
If this Note bears interest at a varying rate, unless changed in accordance
with law, the applicable method of calculating the usury ceiling rate under
Texas law shall be in the indicated (weekly) ceiling rate from time to time in
effect, as provided in Tex. Rev. Civ. Stat. Xxx. art. 5069-1.04, as amended.
AGREEMENT FOR BINDING ARBITRATION. The parties agree to be bound by the
terms and provisions of the current Arbitration Program of First Interstate Bank
of Texas, N.A. which is incorporated by reference herein and is acknowledged as
received by the parties, pursuant to which any and all disputes shall be
resolved by mandatory binding arbitration upon the request of any party.
/s/ AC
-----------
(INITIALS)
Page 3 of 4 pages
This Note is subject to the terms and conditions of a Letter Loan Agreement
executed by Bank and Maker on even date herewith.
MAKER:
MANIFOLD VALVE SERVICES, INC.,
a Delaware corporation
By: /s/ XXXXXX XXXXXXX
---------------------------
Xxxxxx Xxxxxxx, President
Page 4 of 4 Pages
COMMERCIAL SECURITY AGREEMENT
THAT, MANIFOLD VALVE SERVICES, INC., a Delaware corporation, P. O. Box
1009, Jennings, Louisiana 70546 (hereinafter referred to as "Debtor"), for
value received, the receipt and sufficiency of which is hereby acknowledged,
hereby grants to FIRST INTERSTATE BANK OF TEXAS, N.A., 0000 Xxxx Xxx Xxxx.,
Xxxxxxx, Xxxxxx Xxxxxx, Xxxxx 00000 (hereinafter referred to as "Secured
Party"), the security interest (and the pledges and assignments as applicable)
hereinafter set forth and agrees with Secured Party as follows:
A. OBLIGATIONS SECURED. The security interest (and pledges and
assignments as applicable) granted hereby are to secure punctual payment and
performance of the following: (i) that certain Master Revolving Line of Credit
Note of even date herewith in the original principal sum of $500,000.00,
executed by Debtor and payable to the order of Secured Party, and any and all
extensions, renewals, modifications and rearrangements thereof; (ii) all
obligations of Debtor to Secured Party under the Letter Loan Agreement between
Debtor and Secured Party executed on even date herewith and all extensions,
renewals, modifications and rearrangements thereof; and (iii) any and all other
indebtedness, liabilities and obligations whatsoever and of whatever nature of
Debtor to Secured Party whether direct or indirect, absolute or contingent,
primary or secondary, due or to become due and whether now existing or hereafter
arising and howsoever evidenced or acquired, whether joint or several, or joint
and several (all of which are herein separately and collectively referred to as
the "Obligations"). Debtor acknowledges that the security interest (and pledges
and assignments as applicable) hereby granted shall secure all future advances
as well as any and all other indebtedness, liabilities and obligations of Debtor
to Secured Party whether now in existence or hereafter arising.
B. USE OF COLLATERAL. Debtor represents, warrants and covenants that
the Collateral will be used by Debtor primarily for business purposes.
C. DESCRIPTION OF COLLATERAL. Debtor hereby grants to Secured Party a
security interest in (and hereby pledges and assigns as applicable) and agrees
that Secured Party shall continue to have a security interest in (and a pledge
and assignment of as applicable), the following property, to-wit:
ALL ACCOUNTS. A security interest in all accounts now owned or existing
as well as any and all that may hereafter arise or be acquired by
Debtor, and all the proceeds and products thereof, including without
limitation, all notes, drafts, acceptances, instruments and chattel
paper arising therefrom, and all returned or repossessed goods arising
from or relating to any such accounts, or other proceeds of any sale or
other disposition of inventory.
ALL INVENTORY. A security interest in all of Debtor's inventory,
including all goods, merchandise, raw materials, goods in process,
finished goods and other tangible personal property, wheresoever
located, now owned or hereafter acquired and held for sale or lease or
furnished or to be furnished under contracts for service or used or
consumed in Debtor's business and all additions and accessions thereto
and contracts with respect thereto and all documents of title evidencing
or representing any part thereof, and all products and proceeds thereof,
including, without limitation, all of such which are now or hereafter
located at the following locations:
Interstate 00 Xxxxxxx Xxxx Xxxxx, Xxxxxxxx, Xxxxxxxxx 00000
ALL FIXTURES. A security interest in all of Debtor's fixtures and
appurtenances thereto, and such other goods, chattels, fixtures,
equipment and personal property affixed or in any manner attached to the
real estate and/or building(s) or structure(s), including all additions
and accessions thereto and replacements thereof and articles in
substitution therefor, howsoever attached or affixed, located at the
following locations:
See EXHIBIT "A" attached hereto and made a part hereof for
all purposes.
ALL EQUIPMENT AND FURNITURE. A security interest in all equipment and
furniture of every nature and description whatsoever now owned or
hereafter acquired by Debtor including all appurtenances and additions
thereto and substitutions therefor, wheresoever located, including all
tools, parts and accessories used in connection therewith.
GENERAL INTANGIBLES. A security interest in all general intangibles and
other personal property now owned or hereafter acquired by Debtor other
than goods, accounts, chattel paper, documents and instruments.
CHATTEL PAPER. A security interest in all of Debtor's interest under
chattel paper, lease agreements and other instruments or documents,
whether now existing or owned by Debtor or hereafter arising or acquired
by Debtor, evidencing both a debt and security interest in or lease of
specific goods.
CONTRACT RIGHTS. A security interest in all of Debtor's contract
rights.
INSTRUMENTS. A pledge and assignment of and security interest in all of
Debtor's now owned or existing as well as hereafter acquired or arising
instruments and documents.
The term "Collateral" as used in this Agreement shall mean and include,
and the security interest (and pledge and assignment as applicable) shall cover,
all of the foregoing property, as well as any accessions, additions and
attachments thereto and the proceeds and products thereof, including without
limitation, all cash, general intangibles, accounts, inventory, equipment,
fixtures, notes, drafts, acceptances, securities, instruments, chattel paper,
insurance proceeds payable because of loss or damage, or other property,
benefits or rights arising therefrom, and in and to all returned or repossessed
goods arising from or relating to any of the property described herein or other
proceeds of any sale or other disposition of such property.
As additional security for the punctual payment and performance of the
Obligations, and as part of the Collateral, Debtor hereby grants to Secured
Party a contractual right of set-off to and a security interest in, and a pledge
and assignment of, any and all money, property, deposit accounts, accounts,
securities, documents, chattel paper, claims, demands, instruments, items or
deposits of the Debtor, and each of them, or to which any of them is a party,
now held or hereafter coming within Secured Party's custody or control,
including without limitation, all certificates of deposit and other depository
accounts, whether such have matured or the exercise of Secured Party's rights
results in loss of interest or principal or other penalty on such deposits, but
excluding deposits subject to tax or penalties if assigned. Without prior
notice to or demand upon the Debtor, Secured Party may exercise its rights
granted above at any time when a default has occurred. Secured Party's rights
and remedies under this paragraph shall be in addition to and cumulative of any
other rights or remedies at law and equity, including, without limitation, any
rights of set-off to which Secured Party may be entitled.
D. REPRESENTATIONS, WARRANTIES AND COVENANTS OF DEBTOR. Debtor
represents and warrants as follows:
1. OWNERSHIP; NO ENCUMBRANCES. Except for the security interests,
pledges, assignments, and rights of set-off granted hereby, the Debtor is, and
as to any property acquired after the date hereof which is included within the
Collateral, Debtor will be, the owner of all such Collateral free and clear from
all charges, liens, security interests, adverse claims and encumbrances of any
and every nature.
2. NO FINANCING STATEMENTS. There is no financing statement or
similar filing now on file in any public office covering any part of the
Collateral, excluding existing financing statements filed by Southwest Bank of
Texas, N.A., and Debtor will not execute and there will not be on file in any
public office any financing statement or similar filing except the financing
statements filed or to be filed in favor of Secured Party.
3. ACCURACY OF INFORMATION. All information furnished to Secured
Party concerning Debtor, the Collateral and the Obligations, or otherwise for
the purpose of obtaining or maintaining credit, is or will be at the time the
same is furnished, accurate and complete in all material respects.
4. AUTHORITY. Xxxxxx has full right and authority to execute and
perform this Agreement and to create the security interests, pledges,
assignments, and rights of set-off created by this Agreement. The making and
performance by Debtor of this Agreement will not violate any of the provisions
of the Partnership Agreement of Debtor, any provision of law, any order of court
or governmental agency, or any indenture or other agreement to which Debtor is a
party, or by which Debtor or any of Debtor's property is bound, or be in
conflict with, result in a breach of or constitute (with due notice and/or lapse
of time) a default under any such indenture or other agreement, or result in the
creation or imposition of any charge, lien, security interest, claim or
encumbrance of any and every nature whatsoever upon the Collateral, except as
contemplated by this Agreement.
5. ADDRESSES. The address of Debtor designated at the beginning
of this Agreement is Xxxxxx's place of business if Debtor has only one place of
business; Xxxxxx's chief executive office if Debtor has more than one place of
business; or Debtor's residence if Debtor has no place of business. Xxxxxx
agrees not to change such address without advance written notice to Secured
Party.
E. GENERAL COVENANTS. Debtor covenants and agrees as follows:
1. OPERATION OF THE COLLATERAL. Debtor agrees to maintain and use
the Collateral solely in the conduct of its own business, in a careful and
proper manner, and in conformity with all applicable permits or licenses.
Debtor shall comply in all material respects with all applicable statutes, laws,
ordinances and regulations. Debtor shall not use the Collateral in any unlawful
manner or for any unlawful purposes, or in any manner or for any purpose that
would expose the Collateral to unusual risk, or to penalty, forfeiture or
capture, or that would render inoperative any insurance in connection with the
Collateral.
2. CONDITION. Debtor shall maintain, service and repair the
Collateral so as to keep it in good operating condition. Debtor shall replace
within a reasonable time all parts that may be worn out, lost, destroyed or
otherwise rendered unfit for use, with appropriate replacement parts. Debtor
shall obtain and maintain in good standing at all time all applicable permits,
licenses, registrations and certificates respecting the Collateral.
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3. ASSESSMENTS. Debtor shall promptly pay when due all taxes,
assessments, license fees, registration fees, and governmental charges levied or
assessed against Debtor or with respect to the Collateral or any party thereof.
4. NO ENCUMBRANCES. Xxxxxx agrees not to suffer or permit any
charge, lien, security interest, adverse claim or encumbrance of any and every
nature whatsoever against the Collateral or any part thereof, except those which
are in favor of Secured Party.
5. NO REMOVAL. Except as otherwise provided in this Agreement,
Debtor shall not remove the Collateral from the county or counties designated at
the beginning of this Agreement without Secured Party's prior written consent.
6. NO TRANSFER. Except as otherwise provided in this Agreement,
Debtor shall not, without the prior written consent of Secured Party, sell,
assign, transfer, lease, charter, encumber, hypothecate or dispose of the
Collateral, or any part thereof, or interest therein, or offer to do any of the
foregoing.
7. NOTICES AND REPORTS. Debtor shall promptly notify Secured
Party in writing of any change in the name, identity or structure of Debtor, any
charge, lien, security interest, claim or encumbrance asserted against the
Collateral, any litigation against Debtor or the Collateral, any theft, loss,
injury or similar incident involving the Collateral, and any other material
matter adversely affecting Debtor or the Collateral. Debtor shall furnish such
reports, information and data regarding Debtor's financial condition and
operations, the Collateral and such other matters as Secured Party may request
from time to time.
8. LANDLORD'S WAIVERS. Debtor shall furnish to Secured Party,
within thirty (30) days from the date hereof, landlord's waivers of all liens
with respect to any Collateral covered by this Agreement that is or may be
located upon leased premises, such landlord's waivers to be in such form and
upon such terms as are acceptable to Secured Party.
9. ADDITIONAL FILINGS. Xxxxxx agrees to execute and deliver such
financing statement or statements, or amendments thereof or supplements thereto,
or other documents as Secured Party may from time to time require in order to
comply with the Texas Uniform Commercial Code (or other applicable state law of
the jurisdiction where any of the Collateral is located) and to preserve and
protect the Secured Party's rights to the Collateral.
10. PROTECTION OF COLLATERAL. Secured Party, at its option,
whether before or after default, but without any obligation whatsoever to do so,
may (a) discharge taxes, claims, charges, liens, security interests, assessments
or other encumbrances of any and every nature whatsoever at any time levied,
placed upon or asserted against the Collateral, (b) place and pay for insurance
on the Collateral, including insurance that only protects Secured Party's
interest, (c) pay for the repair, improvement, testing, maintenance and
preservation of the Collateral, (d) pay any filing, recording, registration,
licensing or certification fees or other fees and charges related to the
Collateral, or (e) take any other action to preserve and protect the Collateral
and Secured Party's rights and remedies under this Agreement as Secured Party
may deem necessary and appropriate. Xxxxxx agrees that Secured Party shall have
no duty or obligation whatsoever to take any of the foregoing action. Xxxxxx
agrees to promptly reimburse Secured Party upon demand for any payment made or
any expense incurred by the Secured Party pursuant to this authorization. These
payments and expenditures, together with interest thereon from date incurred
until paid by Debtor at the maximum contract rate allowed under applicable laws,
which Debtor agrees to pay, shall constitute additional Obligations and shall be
secured by and entitled to the benefits of this Agreement.
11. INSPECTION. Debtor shall at all reasonable times allow
Secured Party by or through any of its officers, agents, attorneys or
accountants, to examine the Collateral, wherever located, and to examine and
make extracts from Debtor's books and records.
12. FURTHER ASSURANCES. Debtor shall do, make, procure, execute
and deliver all such additional and further acts, things, deeds, interests and
assurances as Secured Party may require from time to time to protect, assure and
enforce Secured Party's rights and remedies.
13. INSURANCE. Debtor shall have and maintain insurance at all
times with respect to all tangible Collateral insuring against risks of fire
(including extended coverage), theft and other risks as Secured Party may
require, containing such terms, in such form and amounts and written by such
companies as may be reasonably satisfactory to Secured Party, all of such
insurance to contain loss payable clauses in favor of Secured Party as its
interest may appear. All policies of insurance shall provide for ten (10) days'
written minimum cancellation notice to Secured Party and at the request of
Secured Party shall be delivered to and held by it. Secured Party shall be
authorized to apply the proceeds from any insurance to the Obligations secured
hereby whether or not such Obligations are then due and payable. Debtor
specifically authorizes Secured Party to disclose information from the policies
of insurance to prospective insurers regarding the Collateral.
F. ADDITIONAL PROVISIONS REGARDING ACCOUNTS. The following provisions
shall apply to all accounts included within the Collateral:
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1. DEFINITIONS. The term "account", as used in this Agreement,
shall have the same meaning as set forth in the Uniform Commercial Code of Texas
in effect as of the date of execution hereof, and as set forth in any amendment
to the Uniform Commercial Code of Texas to become effective after the date of
execution hereof, and also shall include all present and future notes,
instruments, documents, general intangibles, drafts, acceptances and chattel
paper of Debtor, and the proceeds thereof.
2. ADDITIONAL WARRANTIES. As of the time any account becomes
subject to the security interest (or pledge or assignment as applicable) granted
hereby, Debtor shall be deemed further to have warranted as to each and all of
such accounts as follows: (a) each account and all papers and documents relating
thereto are genuine and in all respects what they purport to be; (b) each
account is valid and subsisting and arises out of a bona fide sale of goods sold
and delivered to, or out of and for services actually rendered by the Debtor to
the account debtor named in the account; (c) the amount of the account
represented as owing is the correct amount actually and unconditionally owing
except for normal cash discounts; and (d) Debtor is the owner thereof free and
clear of any charges, liens, security interests, adverse claims and encumbrances
of any and every nature whatsoever, except those in favor of Secured Party.
3. COLLECTION OF ACCOUNTS. Secured Party shall have the right in
its own name or in the name of the Debtor, after default, to require Debtor
forthwith to transmit all proceeds of collection of accounts to Secured Party,
to notify any and all account debtors to make payments of the accounts directly
to Secured Party, to demand, collect, receive, receipt for, sue for and give
acquittal for, any and all amounts due or to become due on the accounts and to
endorse the name of Debtor on all commercial paper given in payment or part
payment thereof, and in Secured Party's discretion to file any claim or take any
other action or proceeding that Secured Party may deem necessary or appropriate
to protect and preserve and realize upon the accounts and related Collateral.
Unless and until Secured Party elects to collect accounts, and the privilege of
Debtor to collect accounts is revoked by Secured Party in writing, Debtor shall
continue to collect accounts, account for same to Secured Party, and shall not
commingle the proceeds of collection of accounts with any funds of the Debtor.
In order to assure collection of accounts in which Secured Party has a security
interest (or pledge or assignment of as applicable) hereunder, Secured Party may
notify the post office authorities to change the address for delivery of mail
addressed to Debtor to such address as Secured Party may designate, and to open
and dispose of such mail and receive the collections of all accounts. Secured
Party shall have no duty or obligation whatsoever to collect any account, or to
take any other action to preserve the Collateral; however, should Secured Party
elect to collect any account or take possession of any Collateral, Debtor
releases Secured Party from any claim or claims for loss or damage arising from
any act or omission in connection therewith.
4. IDENTIFICATION AND ASSIGNMENT OF ACCOUNTS. Upon Secured
Party's request, after default, Debtor shall take such action and execute and
deliver such documents as Secured Party may reasonably request in order to
identify, confirm, mark, segregate and assign accounts and to evidence Secured
Party's interest in same. Without limitation of the foregoing, Debtor, upon
request, agrees to assign accounts to Secured Party, with respect to the
preceding month or other applicable period, identify and mark accounts as being
subject to the security interest (or pledge or assignment as applicable) granted
hereby, xxxx Xxxxxx's books and records to reflect such assignments, and
forthwith to transmit to Secured Party in the form as received by Debtor any and
all proceeds of collection of such accounts.
5. ACCOUNT REPORTS. Debtor will deliver to Secured Party, within
forty-five (45) days after the end of each calendar quarter, or on such other
frequency as Secured Party may reasonably request, a written report in form and
content satisfactory to Secured Party, with respect to the preceding calendar
quarter or other applicable period, showing a listing and aging of accounts and
such other information as Secured Party may request from time to time.
G. ADDITIONAL PROVISIONS REGARDING INVENTORY. The following
provisions shall apply to all inventory included within the Collateral:
1. INVENTORY REPORTS. Debtor will deliver to Secured Party,
within forty-five (45) days after the end of each calendar quarter, or on such
other frequency as Secured Party may reasonably request, a written report in
form and content satisfactory to Secured Party, with respect to the preceding
calendar quarter or other applicable period, showing Debtor's opening inventory,
inventory acquired, inventory sold, inventory returned, inventory used in
Debtor's business, closing inventory, any other inventory not within the
preceding categories, and such other information as Secured Party may reasonably
request from time to time. Debtor shall notify Secured Party of any material
matter adversely affecting the inventory, including, without limitation, any
event causing loss or depreciation in the value of the inventory and the amount
of such possible loss or depreciation.
2. LOCATION OF INVENTORY. Debtor will promptly notify Secured
Party in writing if it intends to commence business and/or place any of its
inventory at any location outside of Louisiana or Texas.
3. USE OF INVENTORY. Unless and until the privilege of Debtor to
use inventory in the ordinary course of Debtor's business is revoked by Secured
Party due to an event of default Debtor may use the inventory in any manner not
inconsistent with this Agreement, may sell that part of the Collateral
consisting of inventory provided that all such sales are in the ordinary course
of business, and may use and consume any raw materials or supplies that are
necessary in order to carry on Debtor's business. A sale in the ordinary course
of business does not include a transfer in partial or total satisfaction of a
debt.
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4. ACCOUNTS AS PROCEEDS. All accounts that are proceeds of the
inventory included within the Collateral shall be subject to all of the terms
and provisions hereof.
5. PROTECTION OF INVENTORY. Debtor shall take all action
necessary to protect and preserve the inventory.
H. EVENTS OF DEFAULT. Debtor shall be in default hereunder upon the
occurrence of any "Event of Default" under Section 6.01 of the Letter Loan
Agreement executed by Xxxxxx and Secured Party on even date herewith ("Letter
Loan Agreement").
I. REMEDIES. Upon the occurrence of an "Event of Default" under
Section 6.01 of the Letter Loan Agreement, Secured Party, at its option, shall
be entitled to exercise any one or more of the following remedies (all of which
are cumulative):
1. DECLARE OBLIGATIONS DUE. Secured Party, at its option, may
declare the Obligations or any part thereof immediately due and payable, without
demand, notice of intention to accelerate, notice of acceleration, notice of
non-payment, presentment, protest, notice of dishonor, or any other notice
whatsoever, all of which are hereby waived by Debtor.
2. REMEDIES. Secured Party shall have all of the rights and
remedies provided for in this Agreement and in any other agreements executed by
Xxxxxx, the rights and remedies of the Uniform Commercial Code of Texas, and any
and all of the rights and remedies at law and in equity, all of which shall be
deemed cumulative. Without limiting the foregoing, Debtor agrees that Secured
Party shall have the right to: (a) require Debtor to assemble the Collateral and
make it available to Secured Party at a place designated by Secured Party that
is reasonably convenient to both parties, which Debtor agrees to do; (b)
peaceably take possession of the Collateral and remove same, with or without
judicial process; (c) without removal, render equipment included within the
Collateral unusable, and dispose of the Collateral on the Debtor's premises; (d)
sell, lease or otherwise dispose of the Collateral, at one or more locations, by
public or private proceedings, for cash or credit, without assumption of credit
risk; (e) upon or after default, exercise rights of set-off against funds and
other property of Debtor within Secured Party's custody or control; and/or (f)
after default, collect and receipt for, compromise, and settle, and give
releases, discharges and acquittances with respect to, any and all amounts owed
by any person or entity with respect to the Collateral. Secured Party will 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 will be made. Any requirement
of reasonable notice to Debtor shall be met if such notice is mailed, postage
prepaid, to Debtor at the address of Debtor designated at the beginning of this
Agreement, at least fifteen (15) days before the day of any public sale or at
least fifteen (15) days before the time after which any private sale or other
disposition will be made.
3. EXPENSES. Debtor shall be liable for and agrees to pay the
reasonable expenses incurred by Secured Party in enforcing its rights and
remedies, in retaking, holding, testing, repairing, improving, selling, leasing
or disposing of the Collateral, or like expenses, including, without limitation,
attorneys' fees and legal expenses incurred by Secured Party. These expenses,
together with interest thereon from date incurred until paid by Debtor at the
maximum contract rate allowed under applicable laws, which Debtor agrees to pay,
shall constitute additional Obligations and shall be secured by and entitled to
the benefits of this Agreement.
4. PROCEEDS; SURPLUS; DEFICIENCIES. Proceeds received by Secured
Party from disposition of the Collateral shall be applied toward Secured Party's
expenses and other Obligations in such order or manner as Secured Party may
elect. Debtor shall be entitled to any surplus if one results after lawful
application of the proceeds. Debtor shall remain liable for any deficiency.
5. REMEDIES CUMULATIVE. The rights and remedies of Secured Party
are cumulative and the exercise of any one or more of the rights or remedies
shall not be deemed an election of rights or remedies or a waiver of any other
right or remedy. Secured Party may remedy any default and may waive any default
without waiving the default remedied or without waiving any other prior or
subsequent default.
J. OTHER AGREEMENTS.
1. WAIVERS. Debtor waives demand, notice of intention to
accelerate, notice of acceleration, notice of non-payment, presentment, protest,
notice of dishonor and any other similar notice whatsoever.
2. SEVERABILITY. Any provision hereof found to be invalid by
courts having jurisdiction shall be invalid only with respect to such provision
(and then only to the extent necessary to avoid such invalidity). The offending
provision shall be modified to the maximum extent possible to confer upon
Secured Party the benefits intended thereby. Such provision as modified and the
remaining provisions hereof shall be construed and enforced to the same effect
as if such offending provision (or portion thereof) had not been contained
herein, to the maximum extent possible.
3. USE OF COPIES. Any carbon, photographic or other reproduction
of any financing statement signed by Xxxxxx is sufficient as a financing
statement for all purposes, including without limitation, filing in any state as
may be permitted by the provisions of the Uniform Commercial Code of such state.
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4. RELATIONSHIP TO OTHER AGREEMENTS. This Security Agreement and
the security interests (and pledges and assignments as applicable) herein
granted are in addition to (and not in substitution, novation or discharge of)
any and all prior or contemporaneous security agreements, security interests,
pledges, assignments, liens, rights, titles or other interests in favor of
Secured Party or assigned to Secured Party by others in connection with the
Obligations. All rights and remedies of Secured Party in all such agreements
are cumulative, but in the event of actual conflict in terms and conditions, the
terms and conditions of the latest security agreement shall govern and control.
5. NOTICES. Any notice or demand given by Secured Party to Debtor
in connection with this Agreement, the Collateral or the Obligations, shall be
deemed given and effective upon deposit in the United States mail, postage
prepaid, addressed to Debtor at the address of Debtor designated at the
beginning of this Agreement. Actual notice to Debtor shall always be effective
no matter how given or received.
6. HEADINGS AND GENDER. Paragraph headings in this Agreement are
for convenience only and shall be given no meaning or significance in
interpreting this Agreement. All words used herein shall be construed to be of
such gender or number as the circumstances require.
7. AMENDMENTS. This Agreement may be changed, amended, modified,
waived or discharged only by an instrument in writing signed by the party
against whom enforcement of the change, amendment, modification, waiver or
discharge is sought.
8. CONTINUING AGREEMENT. The security interest (and pledges and
assignments as applicable) hereby granted and all of the terms and provisions in
this Agreement shall be deemed a continuing agreement and shall continue in full
force and effect until all obligations are extinguished or this Agreement is
terminated in writing. Any such revocation or termination shall only be
effective if explicitly confirmed in a signed writing issued by Secured Party to
such effect and shall in no way impair or affect any transactions entered into
or rights created or Obligations incurred or arising prior to such revocation or
termination, as to which this Agreement shall be fully operative until same are
repaid and discharged in full. Unless otherwise required by applicable law,
Secured Party shall be under no obligation to issue a termination statement or
similar documents unless Debtor requests same in writing and, provided further,
that all Obligations have been repaid and discharged in full and there are no
commitments to make advances, incur any Obligations or otherwise give value.
9. BINDING EFFECT. The provisions of this Security Agreement
shall be binding upon the heirs, personal representatives, successors and
assigns of Debtor and the rights, powers and remedies of Secured Party hereunder
shall inure to the benefit of the successors and assigns of Secured Party.
10. GOVERNING LAW. This Security Agreement shall be governed by
the law of the State of Texas and applicable federal law.
11. AGREEMENT FOR BINDING ARBITRATION. The parties agree to be
bound by the terms and provisions of the current Arbitration Program of First
Interstate Bank of Texas, N.A. which is incorporated by reference herein and is
acknowledged as received by the parties, pursuant to which any and all disputes
shall be resolved by mandatory binding arbitration upon the request of any
party.
EXECUTED this _______ day of September, 1995.
DEBTOR:
MANIFOLD VALVE SERVICES, INC., a
Delaware corporation
By:/s/ Xxxxxx Xxxxxxx
-----------------------------
Xxxxxx Xxxxxxx, President
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the following described property located in
Jennings, Xxxxxxxxx Xxxxx Parish, Louisiana, to-wit:
Beginning at a point 25 feet South and 286.97 feet North 89 DEG.
38'18" West of the Northeast corner of Section 27, Township Nine (9)
South, Range Three (3) West, Louisiana Meridian, thence North 89 DEG.
38'18" West 270.53 feet; thence South 00 DEG.22'42" West 123 feet;
thence North 89 DEG.38'18" West 76 feet; thence South 00 DEG.
22'42" West 219.80 feet; thence South 89 DEG.38'18" East 316
feet, more or less, to the center line of the Canal, thence following
the center line of the canal Northeast 343 feet, more or less, to the
point of beginning.
EXHIBIT "A"
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