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EXHIBIT 4.07
SECURITY AGREEMENT
(PERSONAL PROPERTY)
This Security Agreement (as amended, supplemented or restated from time
to time, this "Agreement") dated as of April 1, 1999, is by and between TIDEL
SERVICES, INC. ("TSI"), whose address is 000 Xxxxxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxxxxx, Xxxxxxxx 00000, and CHASE BANK OF TEXAS, N.A., a national banking
association, whose address is 0000 Xxxx Xxxxxx, 0xx Xxxxx, Xxxxxx, Xxxxx 00000
(the "Secured Party"), under the Credit Agreement (as amended, restated and
supplemented from time to time, the "Credit Agreement") of even date herewith,
by and among Tidel Engineering, L.P. ("Debtor"), Secured Party and Tidel
Technologies, Inc.
TSI and Secured Party agree as follows:
Any capitalized term used in this Agreement and not otherwise defined
herein shall have the meaning ascribed to such term in the Credit Agreement. All
principles of construction set forth in Section 1.2 of the Credit Agreement are
incorporated herein by reference for all purposes.
ARTICLE 1
CREATION OF SECURITY INTEREST
1.1 In order to secure the prompt and unconditional payment of the
indebtedness herein referred to and the performance of the obligations,
covenants, agreements and undertakings herein described, TSI hereby grants to
Secured Party a security interest in, and mortgage, collaterally assign as
security and pledge to Secured Party, all of TSI's rights, titles and interests
of every kind and character now owned or hereafter acquired, created or arising
in and to the following:
ACCOUNTS
(a) all accounts, receivables, accounts receivable, reports,
customer lists, purchase orders, monies due or recoverable
from pension funds, tax refunds, book debts, contract rights
and rights to payment no matter how evidenced;
(b) all chattel paper, notes, drafts, acceptances, payments under
leases of equipment or sale of inventory, and other forms of
obligations received by or belonging to TSI for goods sold or
leased and/or services rendered by TSI;
(c) all purchase orders, instruments and other documents
(including all documents of title) evidencing obligations to
TSI, including those for or representing obligations for goods
sold or leased and/or services rendered by TSI;
(d) all monies due or to become due to TSI under all contracts for
or arising from the sale or lease of goods and/or performance
of services by TSI no matter how evidenced and whether or not
earned by performance;
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(e) all accounts, receivables, accounts receivable and contract
rights arising as a result of TSI's having paid accounts
payable (or having had goods sold or leased to TSI or services
performed for TSI giving rise to accounts payable) which
accounts payable were paid for or were incurred by TSI on
behalf of any third parties pursuant to an agreement or
otherwise;
(f) all goods, the sale and delivery of which give rise to any of
the foregoing, including any such goods which are returned to
TSI for credit;
INVENTORY
all goods, merchandise, raw materials, work in process, finished goods,
and other tangible personal property of whatever nature now owned by
TSI or hereafter from time to time existing or acquired, wherever
located and held for sale or lease, including those held for display or
demonstration or out on lease or consignment, or furnished or to be
furnished under contracts of service or used or usable or consumed or
consumable in TSI's business or which are finished or unfinished goods
and all accessions and appurtenances thereto, together with all
warehouse receipts and other documents evidencing any of the same and
all containers, packing, packaging, shipping and similar materials;
EQUIPMENT
all machinery, apparatus, equipment, fittings, furniture, fixtures,
motor vehicles and other tangible personal property (other than
Inventory) of every kind and description owned by TSI or in which TSI
has an ownership interest, whether now owned or hereafter acquired by
TSI and wherever located, and all parts, accessories and special tools
and all increases and accessions thereto and substitutions and
replacements therefor;
GENERAL INTANGIBLES
all general intangibles of TSI, whether now owned or hereafter created
or acquired by TSI, including all choses in action, causes of action,
corporate or other business records, deposit accounts, inventions,
blueprints, designs, patents, patent applications, trademarks,
trademark applications, trade names, trade secrets, service marks,
goodwill, brand names, copyrights, registrations, licenses, franchises,
customer lists, tax refund claims, computer programs, operational
manuals, all claims under guaranties, security interests or other
security held by or granted to TSI to secure payment of any of the
Accounts by an account TSI, all rights to indemnification and all other
intangible property of every kind and nature (other than Accounts);
CASH, CASH EQUIVALENTS AND OTHER PROPERTY
all property or interests in property now owned or hereafter acquired
by TSI, and all property or interests in property now owned or
hereafter acquired by TSI in the
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possession, custody or control of Secured Party or any agent or
Affiliate of Secured Party for any purpose (whether for safekeeping,
deposit, custody, pledge, transmission, collection or otherwise) and
all rights and interests of TSI, now existing or hereafter arising and
however and wherever arising, in respect of any and all (i) notes,
drafts, letters of credit, stocks, bonds, and debt and equity
securities, whether or not certificated, and warrants, options, puts
and calls and other rights to acquire or otherwise relating to the
same; (ii) money; (iii) proceeds of loans; and (iv) insurance proceeds;
together with all accessions, appurtenances and additions to and substitutions
for any of the foregoing; all products and proceeds of any of the foregoing; all
renewals and replacements of any of the foregoing; and all accounts,
instruments, notes, chattel paper, documents (including all documents of title),
books, records, computer programs, computer tapes, computer discs, contract
rights and other general intangibles arising from any of the foregoing
(including all insurance and claims for insurance affected or held for the
benefit of TSI or Secured Party in respect of any of the foregoing). All of the
properties and interests described in this Section 1.1 are herein collectively
called the "Collateral." The inclusion of proceeds does not authorize TSI to
sell, dispose of or otherwise use the Collateral in any manner not otherwise
authorized herein.
1.2 TSI acknowledges, agrees and confirms that value has been given to
TSI by Secured Party and that TSI and Secured Party have not agreed to postpone
the time for attachment of the security interests in and assignments of the
Collateral which are evidenced hereby.
ARTICLE 2
SECURED INDEBTEDNESS
2.1 This Agreement is made to secure all of the following debt and
obligations:
(a) All Indebtedness at any time evidenced by the Notes, the
Applications, and any and all modifications, extensions, renewals,
rearrangements, replacements and increases of each thereof.
(b) All other Obligations of Debtor, TSI or any other party
under or in connection with the Credit Agreement, this Agreement and the other
Loan Documents owed to Secured Party.
2.2 The term "Debt" means and includes all of the Indebtedness and
other Obligations described or referred to in Section 2.1. The Debt includes
interest and all other Obligations accruing or arising after (a) commencement of
any case under any bankruptcy or similar laws by or against Debtor, TSI or any
other Guarantor (Debtor, TSI and each such Guarantor being herein called
individually an "Obligor" and collectively, "Obligors") or (b) the obligations
of any Obligor shall cease to exist by operation of law or for any other reason
(it being the intention of Secured Party to not reinstate the liability of any
discharged Obligor, but only to confirm that the discharge of any Obligor from
liability for the Debt shall not effect all remaining Obligors' liability for
interest and other Obligations accruing or arising with respect to the Debt
after any such discharged Obligor has been released from liability for all or
any portion of the Debt. The
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Debt also includes all reasonable attorneys' fees and any other reasonable
expenses incurred by Secured Party in enforcing any of the Loan Documents.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
TSI represents and warrants as follows:
(a) TSI is the legal and equitable owner and holder of marketable title
to the Collateral free of any material adverse claim and free of any Lien except
only for the Liens granted hereby and those other Liens (if any) expressly
referred to, described in or permitted by this Agreement or any other Loan
Documents. Except with respect to Liens permitted by this Agreement or by the
terms of the other Loan Documents, TSI has not heretofore signed any financing
statement or other similar instrument directly or indirectly affecting the
Collateral or any part of it which has not been completely terminated of record,
and no such financing statement or other similar instrument signed by TSI is now
on file in any public office.
(b) As of the date of this Agreement, the location of TSI is the
address set forth at the beginning of this Agreement and in this regard, TSI's
location is defined to mean (i) TSI's place of business if TSI has only one such
place of business; or (ii) TSI's chief executive office if TSI has more than one
place of business. As of the date of this Agreement, the primary books and
records of TSI with regard to the Collateral are maintained and kept at such
address of TSI set forth at the beginning of this Agreement.
(c) No part of the Collateral consists or will consist of consumer
goods, farm products or timber and the like or accounts resulting from the sale
thereof.
(d) TSI has the right to use, assign and pledge, without payment of any
amounts to any third parties (other than normal licensing fees payable to
licensors of prefabricated software programs currently utilized by TSI, if any),
any and all accounting, monitoring, billing, recordkeeping or other similar
types of systems, together with all related software, currently utilized by TSI
in its operations. Prior to commencement of any use by TSI of any custom
designed or similar types of accounting, monitoring, billing, recordkeeping or
other similar types of systems, together with all related software, TSI shall
cause any and all licensors thereof to consent in writing to the use by Secured
Party of such systems and related software upon payment by Secured Party to such
licensors of the amounts normally due and payable on a periodic basis by TSI to
such licensors in connection with TSI's day to day use and implementation of
such systems and related software (the form of such consents from the applicable
licensors to be upon terms and conditions reasonably acceptable to Secured
Party).
(e) As of the date of this Agreement, TSI has not ever changed its name
whether by amendment of its organizational documents or otherwise, except as
disclosed in the Organizational Documents of TSI delivered to Secured Party in
connection with the execution and delivery of the Credit Agreement and all other
Loan Documents.
(f) The Collateral is free from damage caused by fire or other
casualty.
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(g) None of the products manufactured and sold, nor any processes or
know-how used by TSI, presently infringe or are alleged to infringe, in any
material respect, any patent, trade secret, trademark, service xxxx, tradename,
copyright or other proprietary right of any other Person.
(h) Except for Liens expressly permitted by this Agreement or any of
the other Loan Documents, the Liens of this Agreement will constitute valid and
perfected first and prior Liens on the Collateral when a financing statement
covering the Collateral is duly filed for record in the offices of the Secretary
of State of the State of Texas.
(i) As of the date hereof, other than Inventory of TSI which is in
transit, all of the Inventory and Equipment of TSI is located at the locations
described on Schedule 1 attached hereto.
ARTICLE 4
COVENANTS
4.1 TSI covenants and agrees with Secured Party as follows:
(a) TSI shall furnish to Secured Party such instruments as may
be required by Secured Party to assure the transferability of any Collateral
when and as often as may be reasonably requested by Secured Party.
(b) If the validity or priority of this Agreement or of any
material rights, titles, security interests or other interests created or
evidenced hereby shall be attacked, endangered or questioned or if any legal
proceedings are instituted with respect thereto, TSI will give prompt written
notice thereof to Secured Party and at TSI's own cost and expense will
diligently endeavor to cure any defect that may be developed or claimed, and
will take all necessary and proper steps for the defense of such legal
proceedings, and Secured Party (whether or not named as a party to legal
proceedings with respect thereto) is hereby authorized and empowered to take
such additional steps as in its reasonable judgment and discretion may be
necessary or proper for the defense of any such legal proceedings or the
protection of the validity or priority of this Agreement and the rights, titles,
security interests and other interests created or evidenced hereby, and all
expenses so incurred of every kind and character shall constitute sums advanced
pursuant to Section 4.2 of this Agreement.
(c) Notwithstanding the security interest in proceeds granted
herein, TSI will not, except as otherwise expressly permitted herein or in the
other Loan Documents, sell, lease, exchange, lend, rent, assign, license,
transfer or otherwise dispose of, or pledge, hypothecate or grant any Lien in,
or permit to exist any Lien against, all or any part of the Collateral or any
interest therein or permit any of the foregoing to occur or arise or permit
title to the Collateral, or any interest therein, to be vested in any other
party, in any manner whatsoever, by operation of law or otherwise, without the
prior written consent of Secured Party. Except as provided by the Loan Documents
or as otherwise permitted herein, TSI shall not, without the prior written
consent of Secured Party, (i) acquire any such Collateral under any arrangement
whereby the
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seller or any other person retains or acquires any security interest in such
Collateral or (ii) return or give possession of any such Collateral to any
supplier or any other Person except in the ordinary course of business. Subject
to the exercise of Secured Party's rights and remedies granted herein or in any
other Loan Document, TSI may use the Collateral in any lawful manner not
inconsistent with this Agreement or the other Loan Documents or with the terms
or conditions of any policy of insurance thereon and may also sell or lease such
Collateral in the ordinary course of business except as otherwise provided under
the other Loan Documents. A sale in the ordinary course of business does not
include a transfer in partial or total satisfaction of a debt. Subject to the
exercise of Secured Party's rights and remedies granted herein or in any other
Loan Document, TSI may also use and consume any raw materials or supplies, the
use and consumption of which are necessary to carry on the business of TSI.
(d) If any portion of the Collateral is now or hereafter
evidenced by any promissory notes, trade acceptances or other instruments for
the payment of money having an original principal or face amount in excess of
$10,000, TSI will immediately deliver them to Secured Party, appropriately
endorsed to Secured Party's order. Regardless of the form of endorsement, TSI
waives presentment, demand, notice of dishonor, protest and notice of protest.
After an Event of Default which is continuing, but prior to such delivery, such
Collateral shall be held in trust for the benefit of Secured Party and subject
to the Liens granted herein.
(e) TSI shall maintain property and liability insurance
policies covering the Collateral and claims related to the Collateral
("Collateral Insurance") in accordance with the requirements of Section 6.7 of
the Credit Agreement. TSI shall deliver certificates evidencing renewal of the
Collateral Insurance before termination of any insurance policies representing
Collateral Insurance. Upon request, TSI shall deliver certificates evidencing
the Collateral Insurance and copies of the underlying policies as they are
available. Promptly upon obtaining knowledge thereof, TSI shall notice Secured
Party of any casualty to the Collateral which exceeds $100,000 ("Material
Casualty"). At the request of Secured Party, TSI shall pursue claims for payment
related to the Material Casualty.
(f) Upon the receipt by Secured Party or TSI of any insurance
proceeds from insurance policies required to be maintained pursuant to Section
6.7 of the Credit Agreement on account of (1) each separate loss, damage or
injury to any Collateral in excess of $100,000 if no Default or Event of Default
shall have occurred which is continuing or (2) any separate loss, damage or
injury to any Collateral (regardless of the amount of loss, damage or injury) if
a Default or Event of Default shall have occurred which is continuing, such
insurance proceeds shall be promptly delivered and turned over to Secured Party
(if the same have not been previously received by Secured Party), and except as
otherwise specified below, such insurance proceeds shall be promptly applied by
Secured Party in payment of the Debt (such order and manner of application to he
at the discretion of Secured Party). With respect to such net insurance
proceeds, TSI may elect, by written notice delivered to Secured Party, not later
than the tenth day after receipt of such net proceeds by Secured Party or TSI,
to utilize and apply all or a portion of such net proceeds for the purpose of
replacing, repairing or restoring the relevant Collateral, and in such event,
any required application of such net proceeds against the Debt in accordance
with the preceding sentence shall be reduced dollar for dollar by the amount of
such election by TSI. Such an election by TSI shall not be effective, however,
unless (1) at the time
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of such election no Default or Event of Default shall have occurred which is
continuing, (2) TSI shall have certified to Secured Party that the net proceeds
of the insurance adjustment for such loss, damage or injury to Collateral,
together with other funds available to TSI, shall be sufficient to complete such
contemplated replacement, repair or restoration in accordance with all
applicable laws, regulations and ordinances, and (3) if the amount of the net
proceeds in question exceeds $100,000, TSI shall have obtained the written
consent of the Secured Party to such use and application of such insurance
proceeds.
(g) In the event of a valid election by TSI under Section
4.1(f) above to utilize all or a portion of such insurance proceeds to replace,
repair or restore the relevant Collateral, upon the request of Secured Party,
TSI shall place into an account under Secured Party's control (the "Insurance
Proceeds Account") the amount of net insurance proceeds to be utilized for such
contemplated replacement, repair or restoration, pursuant to agreements in form,
scope and substance reasonably satisfactory to Secured Party (including a pledge
of such Insurance Proceeds Account as additional security for the Debt). The
Insurance Proceeds Account, including all earnings thereon, if any, shall be
available to TSI solely for the replacement, repair or restoration of the
Collateral suffering the applicable injury, loss or damage; provided, however,
that at any time that a Default or Event of Default shall occur and be
continuing, the balance of the Insurance Proceeds Account, together with all
earnings thereon, may be immediately applied by Secured Party to repay the Debt
in such order as Secured Party shall elect in its discretion. Secured Party
shall be entitled to require proof, as a condition to TSI making of any
withdrawal from the Insurance Proceeds Account, that the amount of such
withdrawal is being applied for the purposes permitted hereunder. Additionally,
any proceeds of the Insurance Proceeds Account may be made available and
advanced by Secured Party directly to TSI, or directly to suppliers,
manufacturers, contractors and other persons entitled to payment in accordance
with and subject to reasonable conditions to disbursements as Secured Party may
impose to assure that such replacement, repair or restoration of the relevant
Collateral is paid for and performed and that no Liens arise by reason thereof.
(h) No Inventory nor Equipment shall be located at any
location, other than the locations set forth on Schedule 1 attached hereto,
which has not been disclosed in writing to Secured Party in advance of such
Inventory or Equipment being located at such location and for which Financing
Statements, and landlord subordinations or warehousemens' agreements, as the
case may be, (if such locations are not owned by TSI) covering such portion of
the Inventory or Equipment, as the case may be, have not been executed and
delivered by TSI and filed for record with the appropriate Governmental
Authority necessary to perfect the Liens granted hereby.
(i) TSI agrees to defend the Collateral and its proceeds
against all claims and demands of any Person at any time claiming the
Collateral.
4.2 If TSI fails to comply with any of its agreements, covenants or
obligations under this Agreement or any other Loan Document, after giving effect
to any applicable cure period, Secured Party (in TSI's name or in Secured
Party's own name) may perform them or cause them to be performed for the account
and at the expense of TSI, but shall have no obligation to perform any of them
or cause them to be performed. Any and all expenses thus incurred or paid by
Secured Party shall be TSI's obligations to Secured Party due and payable on
demand, or if no
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demand is sooner made, then they shall be due on or before four (4) years after
the respective dates on which they were incurred, and each shall bear interest
from the date one (1) Business Day after Secured Party demands payment for such
amounts until the date TSI repays such amounts to Secured Party, at the Past Due
Rate. Upon making any such payment or incurring any such expense, Secured Party
shall be fully and automatically subrogated to all of the rights of the person,
corporation or body politic receiving such payment. Any amounts owing by TSI to
Secured Party pursuant to this or any other provision of this Agreement shall
automatically and without notice be and become a part of the Debt and shall be
secured by this and all other instruments securing the Debt. The amount and
nature of any such expense and the time when it was paid shall be fully
established by the affidavit of Secured Party or any of Secured Party's officers
or agents. The exercise of the privileges granted to Secured Party in this
Section shall in no event be considered or constitute a cure of the default or a
waiver of Secured Party's right at any time after an Event of Default to declare
the Debt to be at once due and payable, but is cumulative of such right and of
all other rights given by this Agreement, the Credit Agreement, the Notes and
the Loan Documents and of all rights given Secured Party by law.
ARTICLE 5
ASSIGNMENT OF PAYMENTS; CERTAIN POWERS
OF SECURED PARTY; NO ASSUMPTION
5.1 Upon the occurrence of an Event of Default and so long as it is
continuing and has not been expressly waived by Secured Party in writing,
Secured Party may request TSI to notify each account debtor and each other
Person (each a "Collateral Obligor") obligated to make payment in respect of any
of the Collateral of the Liens in such Collateral granted herein and instruct
such Collateral Obligor to pay over to Secured Party, all or any part of the
Collateral without making any inquiries as to the status or balance of TSI and
without any notice to or further consent of TSI. If TSI does not promptly comply
with such request, Secured Party may, but shall not be obligated to, directly
notify each such Collateral Obligor of the Liens in the Collateral granted
herein and instruct such Collateral Obligor to pay over to Secured Party, all or
any part of the Collateral without making any inquiries as to the status or
balance of TSI and without any notice to or further consent of TSI.
5.2 The powers conferred on Secured Party pursuant to this Article 5
are conferred solely to protect Secured Party's interest in the Collateral and
shall not impose any duty or obligation on Secured Party to perform any of the
powers herein conferred. Additionally, the powers conferred on Secured Party
pursuant to this Article 5 are cumulative of all other similar, related or
additional powers conferred on Secured Party by the terms and provisions of
Section 9.21 of the Credit Agreement and are not intended to limit or restrict
in any manner whatsoever any of such powers and rights conferred on Secured
Party under the terms and provisions of the Credit Agreement or any other Loan
Documents. No exercise of any of such rights provided for in this Article 5 or
in the Credit Agreement shall constitute a retention of collateral in
satisfaction of the indebtedness as provided for in Section 9.505 of the Uniform
Commercial Code of Texas or the state or states where the applicable Collateral
is located.
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ARTICLE 6
EVENTS OF DEFAULT
An Event of Default under the Credit Agreement shall constitute an
Event of Default (herein so called) under this Agreement.
ARTICLE 7
REMEDIES IN EVENT OF DEFAULT
7.1 In addition to the other rights and remedies provided for in the
Credit Agreement, upon the occurrence and during the continuation of an Event of
Default:
(a) Secured Party is authorized, in any legal manner and
without breach of the peace, to take possession of the Collateral (TSI HEREBY
WAIVES ALL CLAIMS FOR DAMAGES ARISING FROM OR CONNECTED WITH ANY SUCH TAKING,
EXCEPT AS MAY BE CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF SECURED
PARTY) and of all books, records and accounts relating thereto and to exercise
without interference from TSI any and all rights which TSI has with respect to
the management, possession, operation, protection, preservation, distribution or
resale of the Collateral, including the right to sell or rent the same for the
account of TSI and to deduct from such sale proceeds or such rents all costs,
expenses and liabilities of every character incurred by Secured Party in
collecting such sale proceeds or such rents, and in managing, operating,
maintaining, protecting or preserving the Collateral and to apply the remainder
of such sales proceeds or such rents on the Debt in such manner as Secured Party
may elect. Before any sale, Secured Party may, at its option, complete the
processing of any of the Collateral and/or repair or recondition the same to
such extent as Secured Party may deem advisable and any reasonable sums expended
therefor by Secured Party shall be reimbursed by TSI. Secured Party may take
possession of TSI's premises to complete such processing, repairing and/or
reconditioning, using the facilities and other property of TSI to do so, to
store any Collateral and to conduct any sale as provided for herein, all without
compensation to TSI. All costs, expenses, and liabilities incurred by Secured
Party in collecting such sales proceeds or such rents, or in managing,
operating, maintaining, protecting or preserving such properties, or in
processing, repairing and/or reconditioning the Collateral if not paid out of
such sales proceeds or such rents as hereinabove provided, shall constitute a
demand obligation owing by TSI and shall bear interest from the date of
expenditure until paid at the Past Due Rate, all of which shall constitute a
portion of the Debt. If necessary to obtain the possession provided for above,
Secured Party may invoke any and all legal remedies to dispossess TSI, including
specifically one or more actions for forcible entry and detainer. In connection
with any action taken by Secured Party pursuant to this paragraph, Secured Party
shall not be liable for any loss sustained by TSI resulting from any failure to
sell or let the Collateral, or any part thereof, or from any other act or
omission of Secured Party with respect to the Collateral unless such loss is
caused by the gross negligence or willful misconduct of Secured Party, nor shall
Secured Party be obligated to perform or discharge any obligation, duty, or
liability under any sale or lease agreement covering the Collateral or any part
thereof or under or by reason of this instrument or the exercise of rights or
remedies hereunder.
(b) Secured Party may, without notice except as hereinafter
provided, sell the Collateral or any part thereof at public or private sale
(with or without appraisal or having the Collateral at the place of sale) for
cash, upon credit, or for future delivery, and at such price or
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prices as Secured Party may deem best, and Secured Party may be the purchaser of
any and all of the Collateral so sold and may apply upon the purchase price
therefor any of the Debt and thereafter hold the same absolutely free from any
right or claim of whatsoever kind. In any such public or private sale, Secured
Party may (but shall not be obligated to) submit a bid in the form of a credit
against the Debt owed to Secured Party, and Secured Party or its designee may
accept title to property purchased at such public or private sale. Upon any such
sale Secured Party shall have the right to deliver, assign and transfer to the
purchaser thereof the Collateral so sold. Each purchaser at any such sale shall
hold the property sold absolutely free from any claim or right of whatsoever
kind, including any equity or right of redemption, stay or appraisal which TSI
has or may have under any rule of law or statute now existing or hereafter
adopted. To the extent notice is required by applicable law, Secured Party shall
give TSI written notice at the address set forth herein (which shall satisfy any
requirement of notice or reasonable notice in any applicable statute) of Secured
Party's intention to make any such public or private sale. Such notice (if any
is required by applicable law) shall be personally delivered or mailed, postage
prepaid, at least ten (10) calendar days before the date fixed for a public
sale, or at least (10) calendar days before the date after which the private
sale or other disposition is to be made, unless the Collateral is of a type
customarily sold on a recognized market, is perishable or threatens to decline
speedily in value. Such notice (if any is required by applicable law), in case
of public sale, shall state the time and place fixed for such sale or, in case
of private sale or other disposition other than a public sale, the time after
which the private sale or other such disposition is to be made. Any public sale
shall be held at such time or times, within the ordinary business hours and at
such place or places, as Secured Party may fix in the notice of such sale. At
any sale, the Collateral may be sold in one lot as an entirety or in separate
parcels as Secured Party may determine. Secured Party shall not be obligated to
make any sale pursuant to any such notice. Secured Party may, without notice or
publication, adjourn any public or private sale or cause the same to be
adjourned from time to time by announcement at any time and place fixed for the
sale, and such sale may be made at any time or place to which the same may be so
adjourned. In case of any sale of all or any part of the Collateral on credit or
for future delivery, the Collateral so sold may be retained by Secured Party
until the selling price is paid by the purchaser thereof, but Secured Party
shall not incur liability in case of the failure of such purchaser to take up
and pay for the Collateral so sold, and in case of any such failure, such
Collateral may again be sold upon like notice. Each and every method of
disposition described in this Section shall constitute disposition in a
commercially reasonable manner. Each Obligor, to the extent applicable, shall
remain liable for any deficiency.
(c) Secured Party shall have all the rights of a secured party
after default under the Uniform Commercial Code of the state or states where the
applicable Collateral is situated, and in conjunction with, in addition to or in
substitution for those rights and remedies:
(i) Secured Party may require TSI to assemble the
Collateral and make it available at a place Secured Party designates
which is mutually convenient to allow Secured Party to take possession
or dispose of the Collateral; and
(ii) it shall not be necessary that Secured Party
take possession of the Collateral or any part thereof before the time
that any sale pursuant to the provisions of
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this Article is conducted and it shall not be necessary that the
Collateral or any part thereof be present at the location of such sale;
and
(iii) before application of proceeds of disposition
of the Collateral to the Debt, such proceeds shall be applied to the
reasonable expenses of retaking, holding, preparing for sale or lease,
selling, leasing, licensing, sublicensing and the like, as well as
reasonable attorneys' fees and legal expenses incurred by Secured
Party, each Obligor, to the extent applicable, to remain liable for any
deficiency; and
(iv) the sale by Secured Party of less than the whole
of the Collateral shall not exhaust the rights of Secured Party
hereunder, and Secured Party is specifically empowered to make
successive sale or sales hereunder until the whole of the Collateral
shall be sold; and, if the proceeds of such sale of less than the whole
of the Collateral shall be less than the aggregate of the Debt, this
Agreement and the security interest created hereby shall remain in full
force and effect as to the unsold portion of the Collateral just as
though no sale had been made; and
(v) in the event any sale hereunder is not completed
or is defective in the reasonable opinion of Secured Party, such sale
shall not exhaust the rights of Secured Party hereunder and Secured
Party shall have the right to cause a subsequent sale or sales to be
made hereunder; and
(vi) any and all statements of fact made in any xxxx
of sale or assignment or other instrument evidencing any foreclosure
sale hereunder shall be taken as rebuttable evidence of the truth of
the facts so stated; and
(vii) Secured Party may appoint or delegate any one
or more persons as agent to perform any act or acts necessary or
incident to any sale held by Secured Party, including the sending of
notices and the conduct of sale, but in the name and on behalf of
Secured Party; and
(viii) demand of performance, advertisement and
presence of property at sale are hereby WAIVED and Secured Party is
hereby authorized to sell hereunder any evidence of debt it may hold as
security for the Debt. Except as provided herein or in any other Loan
Document, all demands and presentments of any kind or nature are
expressly WAIVED by TSI. TSI WAIVES the right to require Secured Party
to pursue any other remedy for the benefit of TSI and agrees that
Secured Party may proceed against any Obligor for the amount of the
Debt owed to Secured Party without taking any action against any other
Obligor or any other person or entity and without selling or otherwise
proceeding against or applying any of the Collateral in Secured Party's
possession.
(d) Secured Party may apply to a court of competent
jurisdiction for the appointment of a receiver, or a receiver and manager, over
TSI, or any or all of the Collateral, with such duties, powers and obligations
as the court making such appointment shall confirm,
SECURITY AGREEMENT (Personal Property) - Page 11
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and TSI hereby irrevocably consents to the appointment of such receiver or such
receiver and manager.
7.2 All remedies expressly provided for in the Agreement are cumulative
of any and all other remedies existing at law or in equity and are cumulative of
any and all other remedies provided for in any other instrument securing the
payment of the Debt, or any part thereof, or otherwise benefiting Secured Party,
and the resort to any remedy provided for hereunder or under any such other
instrument or provided for by law shall not prevent the concurrent or subsequent
employment of any other appropriate remedy or remedies.
7.3 Secured Party may resort to any security given by this Agreement or
to any other security now existing or hereafter given to secure the payment of
the Debt, in whole or in part, and in such portions and in such order as may
seem best to Secured Party in its sole and uncontrolled discretion, and any such
action shall not in anywise be considered as a waiver of any of the rights,
benefits or security interests evidenced by this Agreement.
7.4 To the full extent TSI may do so, TSI agrees that TSI will not at
any time insist upon, plead, claim or take the benefit or advantage of any law
now or hereafter in force providing for any appraisement, valuation, stay,
extension or redemption, and TSI, for TSI, TSI's successors, receivers, trustees
and assigns, and for any and all persons ever claiming any interest in the
Collateral, to the extent permitted by law, hereby WAIVE and release all rights
of redemption, valuation, appraisement, stay of execution, notice of intention
to mature or to declare due the whole of the Debt, notice of election to mature
or to declare due the whole of the Debt and all rights to a marshaling of the
assets of TSI, including the Collateral, or to a sale in inverse order of
alienation in the event of foreclosure of the security interest hereby created.
ARTICLE 8
ADDITIONAL AGREEMENTS
8.1 Subject to the automatic reinstatement provisions of Section 8.21
below, upon full satisfaction of the Debt, complete performance of all of the
obligations of the Obligors under the Loan Documents and final termination of
Secured Party's obligations, if any, to make any further advances under any Note
or to provide any other financial accommodations to any Obligor, all rights
under this Agreement shall terminate and the Collateral shall become wholly
clear of the security interest evidenced hereby, and upon written request by TSI
such security interest shall be released by Secured Party in due form and at
TSI's cost.
8.2 Secured Party may waive any default without waiving any other prior
or subsequent default. Secured Party may remedy any default without waiving the
default remedied. The failure by Secured Party to exercise any right, power or
remedy upon any default shall not be construed as a waiver of such default or as
a waiver of the right to exercise any such right, power or remedy at a later
date. No single or partial exercise by Secured Party of any right, power or
remedy hereunder shall exhaust the same or shall preclude any other or further
exercise thereof, and every such right, power or remedy hereunder may be
exercised at any time and from time to time. No modification or waiver of any
provision hereof nor consent to any departure by TSI therefrom shall in any
event be effective unless the same shall be in writing and
SECURITY AGREEMENT (Personal Property) - Page 12
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signed by Secured Party, and then such waiver or consent shall be effective only
in the specific instances, for the purpose for which given and to the extent
therein specified. No notice to nor demand on TSI in any case shall of itself
entitle TSI to any other or further notice or demand in similar or other
circumstances. Acceptance by Secured Party of any payment in an amount less than
the amount then due on the Debt shall be deemed an acceptance on account only
and shall not in any way affect the existence of a default hereunder.
8.3 Subject to Section 9.11 of the Credit Agreement, Secured Party may
at any time and from time to time in writing (a) waive compliance by TSI with
any covenant herein made by TSI to the extent and in the manner specified in
such writing; (b) consent to TSI's doing any act which hereunder TSI is
prohibited from doing, or consent to TSI's failing to do any act which hereunder
TSI is required to do, to the extent and in the manner specified in such
writing; (c) release any part of the Collateral, or any interest therein, from
the security interest of this Agreement; or (d) release any Person liable,
either directly or indirectly, for the Debt or for any covenant herein or in any
other instrument now or hereafter securing the payment of the Debt, without
impairing or releasing the liability of any other Person. No such act shall in
any way impair the rights of Secured Party hereunder except to the extent
specifically agreed to by Secured Party in such writing.
8.4 Secured Party shall not be required to take any steps necessary to
preserve any rights against prior parties to any of the Collateral.
8.5 The Liens and other rights of Secured Party hereunder shall not be
impaired by any indulgence, moratorium or release granted by Secured Party,
including but not limited to (a) any renewal, extension or modification which
Secured Party may grant with respect to the Debt; (b) any surrender compromise,
release, renewal, extension, exchange or substitution which Secured Party may
grant in respect of any item of the Collateral, or any part thereof or any
interest therein; or (c) any release or indulgence granted to any endorser,
guarantor or surety of the Debt.
8.6 A carbon, photographic or other reproduction of this Agreement or
of any financing statement relating to this Agreement shall be sufficient as a
financing statement. TSI will cause all financing statements and continuation
statements relating hereto to be recorded, filed, re-recorded and refiled in
such manner and in such places as Secured Party shall reasonably request and
will pay all such recording, filing, re-recording, and refiling taxes, fees and
other charges.
8.7 This Agreement may be executed in several identical counterparts
and by the parties hereto on separate counterparts, and each counterpart, when
so executed and delivered, shall constitute an original instrument, and all such
separate counterparts shall constitute but one and the same instrument.
8.8 In the event the ownership of the Collateral or any part thereof
becomes vested in a Person other than TSI, Secured Party may, without notice to
TSI deal with such successor or successors in interest with reference to this
Agreement and to the Debt in the same manner as with TSI, without in any way
vitiating or discharging TSI's liability hereunder or upon the Debt.
SECURITY AGREEMENT (Personal Property) - Page 13
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No sale of the Collateral, and no forbearance on the part of Secured Party and
no extension of the time for the payment of the Debt given by Secured Party
shall operate to release, discharge, modify, change or affect, in whole or in
part, the liability of TSI hereunder for the payment of the Debt or the
liability of any other person hereunder for the payment of the Debt, except as
agreed to in writing by Secured Party or as expressly provided in the Credit
Agreement.
8.9 Any other or additional security taken for the payment of any of
the Debt shall not in any manner affect the security given by this Agreement.
8.10 To the extent that proceeds of the Debt are used to pay
indebtedness secured by any outstanding Lien against the Collateral, such
proceeds have been advanced by Secured Party at TSI's request, and Secured Party
shall be subrogated to any and all Liens owned by any owner or holder of such
outstanding Lien, irrespective of whether said Lien is released.
8.11 If any part of the Debt cannot be lawfully secured by this
Agreement, or if the Liens of this Agreement cannot be lawfully enforced to pay
any part of the Debt, then and in either such event, at the option of Secured
Party, all payments on the Debt shall be deemed to have been first applied
against that part of the Debt.
8.12 Subject to Section 9.11 of the Credit Agreement, this Agreement
shall not be changed orally but shall be changed only by agreement in writing
signed by TSI and Secured Party. No course of dealing between the parties, no
usage of trade and no parole or extrinsic evidence of any nature shall be used
to supplement or modify any of the terms or provisions of this Agreement.
8.13 Any notice, request or other communication required or permitted
to be given hereunder shall be given as provided in the Credit Agreement.
8.14 This Agreement shall be binding upon TSI, and the trustees,
receivers, successors and assigns of TSI, including all successors in interest
of TSI in and to all or any part of the Collateral, and shall benefit Secured
Party and its successors and assigns.
8.15 If any provision of this Agreement is held to be illegal, invalid
or unenforceable under present or future laws, the legality, validity and
enforceability of the remaining provisions of this Agreement shall not be
affected thereby, and this Agreement shall be liberally construed so as to carry
out the intent of the parties to it. Each waiver in this Agreement is subject to
the overriding and controlling rule that it shall be effective only if and to
the extent that (a) it is not prohibited by applicable law and (b) applicable
law neither provides for nor allows any material sanctions to be imposed against
Secured Party for having bargained for and obtained it.
8.16 Secured Party shall be deemed to have exercised reasonable care in
the custody and preservation of any of the Collateral in its possession if it
takes such action for that purpose as TSI requests in writing, but failure of
Secured Party to comply with such request shall not of itself be deemed a
failure to have exercised reasonable care, and no failure of Secured Party to
take any action so requested by TSI shall be deemed a failure to exercise
reasonable care in the custody or preservation of such Collateral. Secured Party
shall not be responsible in any way for
SECURITY AGREEMENT (Personal Property) - Page 14
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any depreciation in the value of the Collateral, nor shall any duty or
responsibility whatsoever rest upon Secured Party to take any steps to preserve
rights against prior parties or to enforce collection of the Collateral by legal
proceedings or otherwise, the sole duty of Secured Party, its successors and
assigns, being to receive collections, remittances and payments on such
Collateral as and when made and received by Secured Party and, as provided by
the Credit Agreement, to apply the amount or amounts so received, after
deduction of any collection costs incurred, as payment upon any of the Debt or
to hold the same for the account and order of TSI.
8.17 In the event TSI instructs Secured Party, in writing or orally, to
deliver any or all of the Collateral to a third Person, and Secured Party agrees
to do so, the following conditions shall be conclusively deemed to be a part of
Secured Party's agreement, whether or not they are specifically mentioned to TSI
at the time of such agreement: (i) Secured Party shall not assume any
responsibility for checking the genuineness or authenticity of any Person
purporting to be a messenger, employee or representative of such third Person to
whom TSI has directed Secured Party to deliver the Collateral, or the
genuineness or authenticity of any document of instructions delivered by such
Person; (ii) TSI will be considered by requesting any such delivery to have
assumed all risk of loss as to the Collateral; (iii) Secured Party's sole
responsibility will be to deliver the Collateral to the Person purporting to be
such third Person described by TSI, or a messenger, employee or representative
thereof; and (iv) Secured Party and TSI hereby expressly agree that the
foregoing actions by Secured Party shall constitute reasonable care.
8.18 The pronouns used in this Agreement are in the masculine and
neuter genders but shall be construed as feminine, masculine or neuter as
occasion may request. "Secured Party", "Obligor" and "TSI" as used in this
Agreement include the heirs, devisees, successors, administrators, personal
representatives, trustees, beneficiaries, conservators, receivers, and
successors and assigns of those parties.
8.19 The section headings appearing in this Agreement have been
inserted for convenience only and shall be given no substantive meaning or
significance whatever in construing the terms and provisions of this Agreement.
Terms used in this Agreement which are defined in the Texas Uniform Commercial
Code are used with the meanings as therein defined. Wherever the term
"including" or a similar term is used in this Agreement, it shall be read as if
it were written "including by way of example only and without in any way
limiting the generality of the clause or concept referred to."
8.20 THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE APPLICABLE LAWS OF THE STATE OF TEXAS (OTHER THAN THE CONFLICTS OF LAWS
PRINCIPLES THEREOF) AND THE UNITED STATES OF AMERICA FROM TIME TO TIME IN
EFFECT.
8.21 TSI agrees that, if at any time all or any part of any payment
previously applied by Secured Party to the Debt is or must be returned by
Secured Party, or recovered from Secured Party, for any reason (including the
order of any bankruptcy court), this Agreement shall automatically be reinstated
to the same effect, as if the prior application had not been made, and, in
addition, TSI hereby agrees to indemnify Secured Party against, and to save and
hold Secured Party harmless from any required return by Secured Party, or
recovery from Secured Party, of
SECURITY AGREEMENT (Personal Property) - Page 15
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any such payments because of its being deemed preferential under applicable
bankruptcy, receivership or insolvency laws, or for any other reason.
8.22 Secured Party may from time to time and at any time, without any
necessity for any notice to or consent by TSI or any other Person, release all
or any part of the Collateral from the security interests of this Agreement,
with or without cause, including as a result of any determination by Secured
Party that the Collateral or any portion thereof contains or has been
contaminated by or releases or discharges any hazardous or toxic waste, material
or substance.
8.23 THIS AGREEMENT REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES
AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT
ORAL AGREEMENTS BY THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN
THE PARTIES.
EXECUTED as of the date first written hereinabove.
"TSI"
TIDEL SERVICES, INC.
By:
------------------------------------
Xxxxxx Xxxxxxxxxx, Vice President
"Secured Party"
CHASE BANK OF TEXAS, N.A., a national
banking association
By:
------------------------------------
Xxxxxx Xxxxxxxx,
Vice President
Schedule 1 - Inventory and Equipment Location
SECURITY AGREEMENT (Personal Property) - Page 16
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SCHEDULE 1
TO
SECURITY AGREEMENT (PERSONAL PROPERTY)
Inventory and Equipment Location
000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxx, Xxxxxxxx 00000
SCHEDULE 1
