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EXHIBIT 10.43
AMENDED AND RESTATED SECURITY AGREEMENT
THIS AMENDED AND RESTATED SECURITY AGREEMENT (this "Security
Agreement") dated effective as of June 30, 1995 is made by AMERICAN ECOLOGY
RECYCLE CENTER, INC., a Delaware corporation, AMERICAN ECOLOGY SERVICES
CORPORATION, a Delaware corporation, AMERICAN ECOLOGY MANAGEMENT CORPORATION,
a Delaware corporation, AMERICAN ECOLOGY INTERNATIONAL, INC., a Delaware
corporation, AMERICAN ECOLOGY ENVIRONMENTAL SERVICES CORPORATION, a Texas
corporation, TEXAS ECOLOGISTS, INC., a Texas corporation, TRANSTEC
ENVIRONMENTAL, INC., a Ohio corporation, US ECOLOGY, INC., a California
corporation, WPI TRANSPORTATION, INC., a Texas corporation and WPI WASTE
CARRIERS, INC., a Texas corporation (individually, each a "Grantor" and
collectively, the "Grantors") with offices located at 5333 Westheimer, Suite
1000, Houston, Texas 77056, in favor of TEXAS COMMERCE BANK NATIONAL
ASSOCIATION, a national banking association (the "Secured Party").
PRELIMINARY STATEMENT
WHEREAS, the Grantors executed that one certain Security
Agreement dated as of December 1, 1994 (the "Original Security Agreement") in
favor of the Secured Party, as agent and as a bank, as security for the
obligations of the Borrower under that certain Amended and Restated Credit
Agreement dated of December 1, 1994; and
WHEREAS, the Secured Party, American Ecology Corporation, a
Delaware corporation (the "Borrower") and the Grantors, as guarantors, have
entered into a Second Amended and Restated Credit Agreement dated effective as
of even date herewith (said Second Amendment and Restated Credit Agreement, as
it may hereafter be amended or otherwise modified from time to time, being the
Credit Agreement) under the terms of the which the Secured Party has agreed to
make various loans to the Borrower up to a total of $35,000,000.00; and
WHEREAS, it is a condition precedent to the obligation of the
Secured Party to make the loans to the Borrower under the Credit Agreement that
each Grantor execute and deliver this Security Agreement to the Secured
Party in amendment and restatement of the Original Security Agreement and
continuation of the liens in respect thereof, and the Grantors desire to
execute this Security Agreement in order to satisfy such condition precedent.
NOW THEREFORE, in consideration of the premises and in order
to induce the Secured Party to make the loans to the Borrower under the Credit
Agreement, the Grantors hereby agree as follows:
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SECTION 1. Defined Terms. "UCC" means the Uniform Commercial
Code as in effect on the date hereof in the State of Texas, provided that if by
mandatory provisions of law, the perfection or the effect of perfection or non-
perfection of the security interests granted pursuant to Section 2 hereof, as
well as all other security interests created or assigned as additional security
for the Obligations pursuant to the provisions of this Security Agreement, in
any Collateral is governed by the UCC as in effect in such other jurisdiction
other than Texas, "UCC" means the UCC as in effect in such other jurisdiction
for purposes of the provisions hereof relating to such perfection or effect of
perfection or non-perfection.
SECTION 2. Grant of Security. Each Grantor hereby assigns and
pledges to the Secured Party, and hereby grants to the Secured Party, a
security interest in, all of the Grantor's right, title and interest in and to
the following, whether presently held or hereafter acquired (the "Collateral"):
(a) All accounts (as defined in the UCC), receivables,
accounts receivable, lease receivables, contract rights, chattel
paper, drafts, acceptances, instruments, writings evidencing a
monetary obligation or a security interest or a lease of goods,
general intangibles and other obligations of any kind, now or
hereafter existing, whether or not arising out of or in connection
with the sale or lease of goods or the rendering of services, and all
rights now or hereafter existing in and to all security agreements,
leases, and other contracts securing or otherwise relating to any such
accounts, receivables, accounts receivable, lease receivables,
contract rights, chattel paper, drafts, acceptances, instruments,
writings evidencing a monetary obligation or a security interest or a
lease of goods, general intangibles or obligations (any and all of the
foregoing being the "Receivables"); and
(b) All equipment (as defined in the UCC) and all
machinery, chattels, tools, dies, jigs, molds, parts, machine tools,
furniture, furnishings, fixtures, rolling stock, cars, trucks,
trailers, tractors, cabs, engines, motors, parts and supplies of every
nature wherever located, including all additions, accessories and
improvements thereto and substitutions therefor (any and all of the
foregoing being the "Equipment"); and
(c) All inventory (as defined in the UCC) in all of its
forms, wherever located, now or hereafter existing and whether
acquired by purchase, merger or otherwise and all raw materials and
work in process therefor, all finished goods thereof and all materials
used or consumed in the manufacture, packing, shipping, advertising,
selling, leasing or production thereof, goods in which each Grantor has
an interest in mass or joint or other interest or right of any kind
and goods which are returned to or repossessed by each Grantor, and all
accessions thereto and products thereof and documents therefor (any
and all of the foregoing being the "Inventory"); and
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(d) All licenses, permits, leases, operating agreements
and rights of any kind to store, process, transport, dispose of, treat
or otherwise deal with chemical, radioactive or other types of
hazardous wastes or other materials, including, without limitation,
those items listed on Schedule 2(d) hereto.
(de) All products and proceeds of any and all of the
foregoing Collateral and, to the extent not otherwise included, all
payments under insurance or any indemnity, warranty or guaranty,
payable by reason of loss or damage to or otherwise with respect to
any of the foregoing Collateral.
The inclusion of proceeds in this Security Agreement does not
authorize the Grantors to sell, dispose of or otherwise use the Collateral in
any manner not specifically authorized hereby.
SECTION 3. Security for Obligations. This Security Agreement
secures the prompt and complete (a) payment and performance of all obligations
of the Borrower and the Grantors to the Secured Party now or hereafter existing
under the Revolving Credit Note, the Fee Capitalization Note and the Term Note
and any duties or obligations of the Borrower and the Grantors under the Credit
Agreement, including letters of credit, and the other Loan Documents, and (b)
performance and observance by the Borrower and the Grantors of all covenants
and conditions contained in the Credit Agreement, this Security Agreement and
any other Loan Document to which it is a party, and in any case whether for
principal, interest, fees, expenses or otherwise, including without limitation,
Article IX of the Credit Agreement (all such obligations, covenants and
conditions described in the foregoing clauses (a) and (b) being hereinafter
collectively referred to as the "Secured Obligations").
SECTION 4. Grantor Remain Liable. Anything herein to the
contrary notwithstanding, (a) the Grantors shall remain liable under the
contracts and agreements included in the Collateral to the extent set forth
therein to perform all of its duties and obligations thereunder to the same
extent as if this Security Agreement had not been executed, (b) the exercise by
the Secured Party of any of the rights hereunder shall not release the Grantors
from any of its duties or obligations under the contracts and agreements
included in the Collateral, and (c) the Secured Party shall not have any
obligation or liability under the contracts and agreements included in the
Collateral by reason of this Security Agreement, nor shall the Secured Party be
obligated to perform any of the obligations or duties of the Grantors
thereunder or to take any action to collect or enforce any claim for payment
assigned hereunder.
SECTION 5. Representations and Warranties. Each Grantor
represents and warrants as follows:
(a) All of the Collateral is located at the places
specified on Schedule 15(b) hereto. The chief place of business and
chief executive office of each Grantor and the office where
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each Grantor keeps its records concerning the Collateral is located at
the address specified in the introductory paragraph to this Security
Agreement.
(b) The Grantors own the Collateral free and clear of
any lien or security interest except for the lien and security
interest created by this Security Agreement and Liens existing in
favor of the Secured Party. No effective financing statement or other
instrument similar in effect covering all or any part of the
Collateral is on file in any recording office, except such as may have
been filed in favor of the Secured Party relating to this Security
Agreement. The Grantors have no trade names except as shown on
Schedule 15(b) hereto.
(c) This Security Agreement has been duly executed and
delivered by the Grantors and creates a valid and perfected first
priority lien and security interest in the Collateral, securing the
payment of the Secured Obligations, and all filings and other actions
necessary or desirable to perfect and protect such lien and security
interest have been duly taken.
(d) No consent of, or notice to, any other persons and no
authorization, approval or other action by, and no notice to or filing
with, any governmental authority or regulatory body is required either
(i) for the grant by the Grantors of the lien and security interest
granted hereby or for the execution, delivery or performance of this
Security Agreement by the Grantors or (ii) for the perfection of or
the exercise by the Secured Party of its rights and remedies
hereunder, other than the filing of financing statements with the
Secretary of State of the States of Texas and Delaware.
(e) All information with respect to the Collateral and
the obligors under the Receivables set forth in any Schedule
(including Schedule I hereto), certificate or other writing at any
time heretofore or hereafter furnished by the Grantors to the Secured
Party is and will be true, correct and complete in all material
respects as of the date specified therein.
SECTION 6. Further Assurances. (a) The Grantors agree that
from time to time, at the expense of the Grantors, the Grantors will promptly
execute and deliver all further instruments and documents, and take all further
action, that may be necessary or desirable, or that the Secured Party may
request, in order to perfect and protect any security interest granted or
purported to be granted hereby or to enable the Secured Party to exercise and
enforce its rights and remedies hereunder with respect to any Collateral.
Without limiting the generality of the foregoing, the Grantors will: (i) mark
conspicuously, at the request of the Secured Party, each of their records
pertaining to the Collateral with a legend indicating that such document,
chattel paper, or Collateral is subject to the security interest granted
hereby; (ii) if any Receivable shall be evidenced by a promissory note or other
instrument or chattel paper, upon the request of the Secured Party, the
Grantors shall, deliver and pledge to the Secured Party such note, instrument
or chattel paper duly endorsed and accompanied by duly executed instruments
of transfer or assignment, all in form and
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substance satisfactory to the Secured Party and (iii) execute and file such
financing or continuation statements, or amendments thereto, and such other
instruments or notices, as may be necessary or desirable, or as the Secured
Party may request, in order to perfect and preserve the security interests
granted or purported to be granted hereby.
(b) The Grantors hereby authorize the Secured Party to
file one or more financing or continuation statements, and amendments
thereto, relative to all or any part of the Collateral without the signatures
of the Grantors where permitted by law. A carbon, photographic or other
reproduction of this Security Agreement or any financing statement covering the
Collateral or any part thereof shall be sufficient as a financing statement
where permitted by law.
(c) The Grantors will furnish to the Secured Party from
time to time statements and schedules further identifying and describing the
Collateral and such other reports in connection with the Collateral as the
Secured Party may reasonably request, all in reasonable detail.
(d) Each Grantor will promptly notify the Secured Party
of any change of its name, corporate structure or federal tax identification
number.
(e) Each Grantor shall keep its chief place of business
and chief executive office and the office where it keeps its books and records
concerning the Collateral, and all originals of all chattel paper, instruments
and documents which evidence Receivables, at the location therefor specified in
Section 5(a) or, upon 30 days' prior written notice to the Secured Party, at
such other locations in a jurisdiction where all action required by Section 6
shall have been taken with respect to the Receivables. Each Grantor will hold
and preserve such records and chattel paper and will upon reasonable notice
permit representatives of the Secured Party at any time during normal business
hours to inspect and make abstracts from such records and chattel paper.
(f) Except as otherwise provided in this subsection (f),
each Grantor shall continue to collect, at its own expense, all amounts due or
to become due such Grantor under the Receivables. In connection with such
collections, each Grantor may take (and, upon the occurrence and continuance of
an Event of Default at the Secured Party's direction, shall take) such action
as such Grantor or the Secured Party may deem necessary or advisable to enforce
collection of the Receivables; provided, that the Secured Party shall have the
right at any time, upon the occurrence and during the continuance of an Event
of Default and upon written notice to each Grantor of its intention to do so,
to notify the account debtors or obligors under any Receivables of the
assignment of such Receivables to the Secured Party and to direct such account
debtors or obligors to make payment of all amounts due or to become due to each
Grantor thereunder directly to the Secured Party and, upon such notification
and at the expense of such Grantor, to enforce collection of any such
Receivables, and to adjust, settle or compromise the amount of payment thereof,
in the same manner and to the same extent as each such Grantor might have done.
After receipt by the
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Grantors of the notice from the Secured Party referred to in the proviso to the
preceding sentence, (i) all amounts and proceeds (including instruments)
received by the Grantors in respect of the Receivables shall be received in
trust for the benefit of the Banks hereunder, shall be segregated from
other funds of the Grantors and shall be forthwith paid over to the Secured
Party in the same form as so received (with any necessary endorsement) to be
held as cash collateral and either (A) released to the Grantors so long as no
Event of Default shall have occurred and be continuing or (B) if any Event of
Default shall have occurred and be continuing, applied as provided in Section
9, and (ii) the Grantors shall not adjust, settle or compromise the amount or
payment of any Receivable, or release wholly or partly any account debtor or
obligor thereof, or allow any credit or discount thereon, except with the prior
written consent of the Secured Party.
(g) The Grantors shall keep the Inventory (other than
Inventory sold in the ordinary course of business or Inventory in transit to a
buyer) at the places therefor specified in Section 5(a) or, upon at least 30
days' prior written notice to the Secured Party, at such other places in
jurisdictions where all action required by Section 6 shall have been taken with
respect to the Inventory.
(h) Not permit anything to be done that may impair the
value of any of the Collateral or the lien and security interest to be afforded
by this Security Agreement.
SECTION 7. Insurance. The Grantors shall, at their own
expense, maintain insurance as provided in Section 7.03 of the Credit
Agreement.
SECTION 8. Transfers and Other Liens. The Grantors shall not:
(a) sell, assign (by agreement, operation of law or otherwise) or otherwise
dispose of any of the Collateral (other than in the ordinary course of
business) or (b) create or suffer to exist any lien or security interest upon
or with respect to any of the Collateral, except for the lien or security
interest created by this Security Agreement and liens and security interests in
favor of the Secured Party as previously disclosed to the Banks.
SECTION 9. Remedies and Application of Proceeds. If any
Event of Default shall have occurred and be continuing, the Secured Party may
exercise in respect of the Collateral, in addition to other rights and remedies
provided for herein or otherwise available to it, all the rights and remedies
of a secured party on default under the UCC (whether or not the UCC applies to
the affected Collateral) and the Secured Party may also (a) require the
Grantors to, and the Grantors hereby agree that they will at their expense and
upon request of the Secured Party forthwith, assemble all or part of the
Collateral as directed by the Secured Party and make it available to the
Secured Party at a place to be designated by the Secured Party which is
reasonably convenient to both parties and (b), without notice except as
specified below, sell the Collateral or any part thereof in one or more
parcels at public or private sale, for cash, on credit or for future delivery,
and upon
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such other terms as the Secured Party may deem commercially reasonable. The
Grantors will execute and deliver such documents and take such other action as
the Secured Party deems necessary or advisable in order that any sale may be
made. Upon any such sale the Secured Party shall have the right to deliver and
transfer to the purchase thereof the Collateral sold. The Grantors agree
that, to the extent notice of sale shall be required by law, at least ten (10)
days' prior written notice to the Grantors of the time and place of any public
sale or the time after which any private sale is to be made or other intended
disposition of any of the Collateral shall constitute reasonable notification
thereof, except any Collateral which is perishable or threatens to decline
speedily in value or is of a type customarily sold on a recognized market. The
Grantors agree that such notice constitutes "reasonable notification" within
the meaning of 9.504(c) of the UCC. The Secured Party shall not be obligated
to make any sale of the Collateral regardless of notice of sale having been
given. The Secured Party may adjourn any public or private sale from time to
time by announcement at the time and place fixed therefor, and such sale may,
without further notice, be made at the time and place to which it was so
adjourned.
SECTION 10. Secured Party Appointed Attorney-in-Fact.
Effective upon the occurrence of and continuance of an Event of Default, the
Grantors hereby irrevocably appoint the Secured Party the Grantors' attorney-
in-fact, with full authority in the place and stead of the Grantors and in the
name of the Grantors, the Secured Party or otherwise, from time to time after
the occurrence and during the continuance of an Event of Default in the Secured
Party's sole discretion, to take any action and to execute any instrument which
the Secured Party may deem necessary or advisable to accomplish the purposes of
this Security Agreement, including:
(a) to ask, demand, collect, sue for, recover,
compromise, receive and give acquittance and receipts for moneys due
and to become due under or in respect of any of the Collateral,
(b) to settle, compromise, prosecute or defend any action
or proceeding with respect thereto,
(c) to extend the time of payment thereof and to make
any allowance or adjustment with reference thereto, and
(d) to sell, transfer, assign, or otherwise deal in or
with the Collateral or the proceeds or avails thereof, as fully and
effectually as if the Secured Party were the absolute owner thereof.
SECTION 11. Secured Party May Perform. If any Grantor fails
to perform any agreement contained herein, the Secured Party may itself
perform, or cause performance of, such
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agreement, and the expenses of the Secured Party incurred in connection
therewith shall be payable by such Grantor under Section 13.
SECTION 12. Limitations of the Secured Party's Duties. The
powers conferred on the Secured Party hereunder are solely to protect its
interest in the Collateral and shall not impose any duty upon it to exercise
any such powers. Except for reasonable care in the custody of any Collateral
in its possession and the accounting for moneys actually received by it
hereunder, the Secured Party shall have no duty as to any Collateral or as to
the taking of any necessary steps to preserve rights against prior parties or
any other rights pertaining to any Collateral. The Secured Party shall be
deemed to have exercised reasonable care in the custody and preservation of any
Collateral in its possession if such Collateral is accorded treatment
substantially equal to that which the Secured Party accords it own property, it
being understood that the Secured Party shall not have any responsibility for
taking any necessary steps to preserve rights against any parties with respect
to any Collateral.
SECTION 13. Indemnity and Expenses. (a) The Grantors shall
indemnify the Secured Party and any Affiliate thereof and their respective
directors, officers, employees and agents from, and hold each of them
harmless against, any and all losses, liabilities, claims or damages (including
reasonable legal fees and expenses) to which any of them may become subject,
insofar as such losses, liabilities, claims or damages arise out of or result
from (i) this Security Agreement, the Credit Agreement or any of the loan
documents executed in connection herewith or (ii) any investigation, litigation
or other proceeding (including any threatened investigation or proceeding)
relating to the foregoing, and the Grantors shall reimburse the Secured Party
and each Affiliate thereof and their respective directors, officers, employees
and agents, upon demand for any expenses (including legal fees)
reasonably incurred in connection with any such investigation or proceeding,
but excluding any such losses, liabilities, claims, damages or expenses
incurred by reason of the gross negligence or willful misconduct of the person
to be indemnified. IT IS THE EXPRESS INTENTION OF THE GRANTORS THAT EACH
PERSON TO BE INDEMNIFIED HEREUNDER SHALL BE INDEMNIFIED AND HELD HARMLESS
AGAINST ANY AND ALL LOSSES, LIABILITIES, CLAIMS OR DAMAGES AS LIMITED IN THE
PRECEDING SENTENCE ARISING OUT OF OR RESULTING FROM THE ORDINARY, SOLE OR
CONTRIBUTORY NEGLIGENCE OF SUCH PERSON. Without prejudice to the survival of
any other obligations of the Grantors hereunder, the obligations of the
Grantors under this Section shall survive the termination of this Security
Agreement.
(b) The Grantors agree to pay within ten (10) Business
Days (as such term is defined in the Credit Agreement) after demand, to the
Secured Party the amount of any and all reasonable expenses, including the fees
and disbursements of its counsel and of any experts and agents, that the
Secured Party may incur in connection with (i) the administration of this
Security Agreement, (ii) the evaluation, appraisal, custody, preservation, use
or operation of, or the sale of, collection from, or other realization upon,
any of the Collateral, (iii) the exercise or enforcement of
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any of the rights of the Secured Party hereunder of (iv) the failure by the
Grantors to perform or observe any of the provisions hereof. The Grantors
agree to pay interest on any expenses or other sums payable to the Secured
Party hereunder that are not paid when due at a rate per annum equal to the
Default Rate (as such term is defined in the Credit Agreement).
SECTION 14. Address for Notices. All notices and other
communications provided for hereunder shall be in writing and, if to the
Grantors, mailed or telecopied or delivered to them, addressed to them at the
addresses provided for the Grantors in the introductory paragraph to this
Security Agreement, Attention: Mr. Edmund J. Gorman, Telecopy No.
(713) 624-1909, if to the Secured Party to it at 712 Main Street, Houston,
Texas 77002, Attention: Mr. Bruce A. Shilcutt, Telecopy No. (713) 216-2902,
or as to any party at such other address as shall be designated by such party
in a written notice to each other party complying as to delivery with the
terms of this Section. All such notices and other communications shall, when
mailed or telecopied, or delivered respectively, be effective when mailed by
certified mail return receipt requested to any party as its address specified
herein, or telecopied to any party to the telecopy number set forth herein, as
applicable, or delivered personally to any party at its address specified above.
SECTION 15. Termination; Reinstatement. (a) The Grantors
agree that this Security Agreement and the liens and security interests granted
hereunder shall terminate only when all Obligations have been fully paid and
performed, at which time the Secured Party upon the Grantors' request shall
reassign and redeliver, including the termination of any financing statements
(or cause to be reassigned and redelivered) to the Grantors, or to such person
as the Grantors shall designate in writing, against receipt, such of the
Collateral (if any) as shall not have been sold or otherwise applied by the
Secured Party pursuant to the terms hereof and shall still be held by it
hereunder. Any such reassignment shall be without recourse upon, or
representation or warranty by, the Secured Party (other than that the Secured
Party has not sold, encumbered or otherwise transferred any interest in the
Collateral except as provided in this Security Agreement) and shall be at the
sole cost and expense of the Grantors.
(b) This Security Agreement shall continue to be
effective or be reinstated, as the case may be, if at any time any amount
received by the Secured Party in respect of the Secured Obligations is
rescinded or must otherwise be restored or returned by the Secured Party upon
the filing of any bankruptcy proceeding by or of the Grantors or upon the
appointment of any intervenor or conservator of, or trustee or similar official
for, the Grantors or any substantial part of their assets, or otherwise, all as
though such payments had not been made.
SECTION 16. Miscellaneous.
(a) No amendment or waiver of any provision of this
Security Agreement, nor consent to any departure by the Grantors herefrom,
shall in any event be effective unless the
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same shall be in writing and signed by the Secured Party and the Grantors, and
then such waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given.
(b) All rights and marshalling of assets of the Grantors,
including any such right with respect to the Collateral, are hereby waived by
the Grantors.
(c) All rights, remedies and powers provided in this
Security Agreement may be exercised only to the extent that the exercise
thereof does not violate any applicable provision of law, and all the
provisions of this Security Agreement are intended to be subject to all
applicable mandatory provisions of law which may be controlling and to be
limited to the extent necessary so that they will not render this Security
Agreement invalid, unenforceable, in whole or in part, or not entitled to
be recorded, registered or filed under the provisions of any applicable law.
(d) Should any clause, sentence, paragraph, subsection or
Section of this Security Agreement be judicially declared to be invalid,
unenforceable or void, such decision will not have the effect of invalidating
or voiding the remainder of this Security Agreement, and the parties hereto
agree that the part or parts of this Security Agreement so held to be invalid,
unenforceable or void will be deemed to have been stricken herefrom by the
parties hereto, and the remainder will have the same force and effectiveness as
if such stricken part or parts had never been included herein.
(e) No failure on the part of the Secured Party to
exercise, and no delay in exercising, any right hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any right hereunder
preclude any other or further exercise thereof or the exercise of any other
right. The remedies herein provided are cumulative and not exclusive of any
remedies provided by law.
(f) This Security Agreement may be executed in any number
of counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute but one and the same
agreement.
(g) This Security Agreement shall create a continuing
security interest in the Collateral and shall (a) remain in full force and
effect until payment in full of the Secured Obligations, (b) be binding upon
the Grantors, their successors and assigns and (c) inure to the benefit of the
Secured Party and its successors, transferees and assigns. Upon the payment in
full of the Secured Obligations, the lien and security interest granted hereby
shall terminate and all rights to the Collateral shall revert to the Grantors.
Upon any such termination, the Secured
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Party will, at the Grantors' expense, promptly execute and deliver to the
Grantors such documents as the Grantors shall reasonably request to evidence
such termination.
(h) All representations and warranties contained in this
Security Agreement or made in writing by or on behalf of the Grantors in
connection herewith shall survive the execution and delivery of this Security
Agreement and repayment of the Secured Obligations. Any investigation by the
Secured Party shall not diminish in any respect whatsoever its rights to rely
on such representations and warranties.
(i) The Grantors hereby expressly waive, to the extent
permitted by applicable law, (1) notice of the acceptance by the Secured Party
of this Security Agreement, (2) notice of the existence or creation or
non-payment of all or any of the Secured Obligations, (3) presentment, demand,
notice of dishonor, protest, intent to accelerate, acceleration and all other
notices whatsoever, and (4) all diligence in collection or protection of or
realization upon the Secured Obligations or any thereof, any obligation
hereunder, or any security for or guaranty of any of the foregoing.
(j) In this Security Agreement, unless a clear contrary
intention appears:
(i) the words "herein", "hereof" and "hereunder" and
other words of similar import refer to this Security Agreement as a
whole and not to any particular Article, Section or other subdivision;
(ii) reference to any person includes such person's
successors and assigns and reference to a person in a particular
capacity excludes such person in any other capacity or individually;
(iii) reference to any agreement, document or instrument
means such agreement, document or instrument as amended, supplemented
or modified and in effect from time to time in accordance with the
terms thereof;
(iv) unless the context indicates otherwise, reference to
any Article, Section, Schedule or Exhibit means such Article or
Section hereof or such Schedule or Exhibit hereto;
(v) the words "including" (and "include") means
including, without limiting the generality of any description
preceding such term;
(vi) with respect to the determination of any period of
time, the word "from" means "from and including" and the word "to"
means "to but excluding;" and
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(vii) reference to any law means such as amended, modified,
codified or reenacted, in whole or in part, and in effect from time to
time.
(k) The Article and Section headings herein are for
convenience only and shall not affect the construction hereof.
(l) No provision of this Security Agreement shall be
interpreted or construed against any Person solely because that person or its
legal representative drafted such provision.
SECTION 17. Ratification of Security Agreement. The Original
Security Agreement, as amended and restated by this Security Agreement, and the
liens created thereby, are hereby in all respects affirmed, ratified, confirmed
and continued.
SECTION 18. Governing Law, Terms. THIS SECURITY AGREEMENT
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
TEXAS, EXCEPT AS REQUIRED BY MANDATORY PROVISIONS OF LAW AND EXCEPT TO THE
EXTENT THAT THE VALIDITY OR PERFECTION OF THE SECURITY INTEREST HEREUNDER, OR
REMEDIES HEREUNDER, IN RESPECT OF ANY PARTICULAR COLLATERAL ARE GOVERNED BY THE
LAWS OF A JURISDICTION OTHER THAN THE STATE OF TEXAS.
SECTION 19. Waiver of Jury Trial. THE GRANTORS HEREBY WAIVE,
TO THE EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT TO A TRIAL BY JURY IN ANY
ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS SECURITY
AGREEMENT OR UNDER ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED
OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION HEREWITH OR ARISING FROM
OR RELATING TO ANY BANKING RELATIONSHIP EXISTING IN CONNECTION WITH THIS
SECURITY AGREEMENT AND AGREES, TO THE EXTENT PERMITTED BY APPLICABLE LAW, THAT
ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A
JURY.
SECTION 20. Submission to Jurisdiction. (a) ANY LEGAL
ACTION OR PROCEEDING WITH RESPECT TO THIS SECURITY AGREEMENT AND THE OTHER LOAN
DOCUMENTS MAY BE BROUGHT IN THE COURTS OF THE STATE OF TEXAS OR OF THE UNITED
STATES FOR THE SOUTHERN DISTRICT OF TEXAS AND, BY EXECUTION AND DELIVERY OF
THIS SECURITY AGREEMENT, EACH GRANTOR HEREBY IRREVOCABLY ACCEPTS FOR ITSELF AND
IN RESPECT OF ITS PROPERTY, UNCONDITIONALLY, THE NON-EXCLUSIVE JURISDICTION OF
THE
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AFORESAID COURTS WITH RESPECT TO ANY SUCH ACTION OR PROCEEDING. EACH GRANTOR
FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE
AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES
THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO IT AT ITS ADDRESS
SET FORTH IN SECTION 14, SUCH SERVICE TO BECOME EFFECTIVE THIRTY DAYS AFTER
SUCH MAILING. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE SECURED PARTY TO
SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL
PROCEEDINGS OR OTHERWISE PROCEED AGAINST ANY LOAN PARTY IN ANY OTHER
JURISDICTION.
(b) EACH GRANTOR HEREBY IRREVOCABLY WAIVES ANY OBJECTION WHICH IT
MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF THE AFORESAID
ACTIONS OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT
BROUGHT IN THE COURTS REFERRED TO IN CLAUSE (a) ABOVE AND HEREBY FURTHER
IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY
SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM.
SECTION 21. Final Agreement of the Parties. THIS SECURITY
AGREEMENT (INCLUDING THE SCHEDULES HERETO), THE NOTES, THE CREDIT AGREEMENT AND
THE OTHER LOAN DOCUMENTS CONSTITUTE A "LOAN AGREEMENT" AS DEFINED IN SECTION
26.02(A) OF THE TEXAS BUSINESS AND COMMERCE CODE, AND REPRESENT THE FINAL
AGREEMENT BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER HEREOF AND THEREOF
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.
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IN WITNESS WHEREOF, each Grantor has caused this Security
Agreement to be duly executed and delivered by their respective officers
thereunto duly authorized as of the date first above written.
AMERICAN ECOLOGY RECYCLE CENTER, INC.
AMERICAN ECOLOGY MANAGEMENT
CORPORATION
AMERICAN ECOLOGY INTERNATIONAL, INC.
AMERICAN ECOLOGY ENVIRONMENTAL
SERVICES CORPORATION
TEXAS ECOLOGISTS, INC.
TRANSTEC ENVIRONMENTAL, INC.
US ECOLOGY, INC.
WPI TRANSPORTATION, INC.
WPI WASTE CARRIERS, INC.
By: /s/ EDMUND J. GORMAN
-----------------------------------
Edmund J. Gorman
Executive Vice President
AMERICAN ECOLOGY SERVICES CORPORATION
By: /s/ EDMUND J. GORMAN
-----------------------------------
Edmund J. Gorman
Senior Vice President
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SCHEDULE 15(b)
Locations of Inventory and Equipment
American Ecology Environmental Services Corp. Winona, Texas
American Ecology International, Inc. Houston, Texas
American Ecology Management Corp. Houston, Texas
American Ecology Recycle Center, Inc. Oak Ridge, Tennessee
American Ecology Services Corp. Houston, Texas
American Liability and Excess Insurance Company Burlington, Vermont
Texas Ecologists, Inc. Robstown, Texas
Transtec Environmental, Inc. Louisville, Ohio
US Ecology, Inc. Beatty, Nevada
US Ecology, Inc. Butte, Nebraska
US Ecology, Inc. Needles, California
US Ecology, Inc. Oak Ridge, Tennessee
US Ecology, Inc. Richland, Washington
US Ecology, Inc. Sheffield, Illinois
WPI Transportation, Inc. Pasadena, Texas
WPI Waste Carriers, Inc. Pasadena, Texas
Trade Names
None
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