EXHIBIT 10.4
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GREYSTONE MANUFACTURING, L.L.C.
SECURITY AGREEMENT
THIS SECURITY AGREEMENT is entered into effective March 4, 2005, with
the security interest granted by, between and among GREYSTONE MANUFACTURING,
L.L.C., an Oklahoma limited liability company of 1613 East 15th Street, Tulsa,
Oklahoma 74120 ("Borrower" or "Grantor" or "Greystone"), and THE F&M BANK &
TRUST COMPANY, an Oklahoma banking corporation ("F&M" or "Bank"), to secure the
certain debts of Grantor to Bank.
R E C I T A L S:
Concurrently herewith, Borrower, GLOG Investment, L.L.C., an Oklahoma
limited liability company ("GLOG"), and Bank are entering into a Loan Agreement
of even date ("Loan Agreement") whereby Bank has lent to or is to lend or make
available for advance to Grantor and GLOG the aggregate sums of TWELVE MILLION
DOLLARS ($12,000,000.00) on three notes, including: (i) a $1,500,000.00
revolving loan to Grantor ("Revolving Note"); (ii) a $5,500,000.00 term loan
issued by Greystone ("Term Note"); and (iii) a $5,000,000.00 term loan issued by
GLOG which is not secured hereunder ("GLOG Note") (the Revolving Note and Term
Note shall collectively be referred to hereafter as the "Notes" and secured
hereunder).
The term "Notes" shall refer to the Revolving Note and Term Note
executed in connection with, or as defined in, the Loan Agreement, including,
without limitation, any and all amendments to or extensions, renewals,
modifications, substitutions and replacements of the Notes and all other
indebtedness or obligations of the Borrower to Bank whether listed herein or
under the Loan Agreement or this Agreement, including, without limitation,
listed in Paragraphs 1.3, 1.4 and/or 1.5, inclusive. The principal indebtedness
secured hereunder is the face amount of the Notes pursuant to the terms of the
Loan Documents. The Notes are to be secured by, among other things, this
Security Agreement and the Loan Documents.
NOW, THEREFORE, for valuable consideration, Grantor and Bank hereby
agree:
1. SECURITY INTEREST.
1.1 SECURITY INTEREST. Grantor hereby sells, assigns, conveys, pledges,
hypothecates, transfers, and grants to Bank a security interest in all of its
present and future right, title, and interest in the Collateral for the purposes
of securing the prompt payment to Bank of any and all of the Secured
Obligations.
1.2 CERTAIN DEFINITIONS. When used in this Security Agreement, the
following terms shall have the respective meanings set forth following such
terms:
Collateral" shall mean:
(a) All of Grantor's accounts, equipment, inventory, general
intangibles and deposit accounts, whether now owned or existing or
hereafter acquired or arising, and all proceeds and products thereof in
any form derived therefrom. By way of illustration and not by way of
limitation, the terms "accounts," "equipment," and "inventory" shall be
deemed to include within their meanings the following:
(1) "account(s)" shall include, without limitation,
the complete definition of such term under Article 9 of the
Uniform Commercial Code ("UCC") and any and all rights of
Grantor to payment for goods sold or leased or for services
rendered, which rights are not evidenced by an instrument or
chattel paper, whether due or to become due and whether or not
the rights have been earned by performance, including without
limitation, credit card receivables, health care receivables,
payments evidenced by chattel paper, deposit accounts,
commercial tort claims, letter of credits, letter of credit
rights, commodity accounts of Grantor, commodity contracts,
sums due for consigned goods and any other sums owed to
Grantor;
(2) "equipment" shall include, without limitation,
the complete definition of such term under the UCC and any and
all goods, including trade fixtures, of the Grantor, other
than inventory, wherever located and whether now owned or
hereafter acquired, including, but not limited to, machinery,
computers, furniture, furnishings and office machines,
together with all attachments, accessories, replacements,
substitutions, additions and improvements to any of the
foregoing, whether now or hereafter acquired, but excluding
any goods leased by Grantor from others;
(3) "inventory" shall include, without limitation,
the complete definition of such term under the UCC and any and
all of Grantor's materials as well as goods, merchandise and
other personal property of the Grantor held for sale or lease
or to be furnished under contracts of service, wherever
located or in transit, together with all attachments,
accessories, replacements, substitutions, additions and
improvements to any of the foregoing, whether now owned or
hereafter acquired;
(4) "general intangibles" shall include, without
limitation, the complete definition of such term under the UCC
and all trade names of Grantor and general intangibles for
money due or to become due; and
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(5) "deposit accounts" shall include, without
limitation, the definition of such term in the UCC and all
deposit accounts of Grantor wherever located and with any
financial institution or Bank and the proceeds of such deposit
accounts.
(b) All documents and documents of title, receipts and the
like, evidencing title to equipment or inventory;
(c) All rights and claims of Grantor in or under all policies
of insurance covering the Collateral of Grantor described herein,
including but not limited to insurance for fire, damage, loss and
casualty, together with the proceeds, or products, renewals and
replacements thereof, including prepaid and unearned premiums;
(d) All books and records, including but not limited to credit
files, computer programs, printouts and other computer materials and
records pertaining to any of the Collateral of Grantor described
herein;
(e) Without in any way limiting the foregoing, whether derived
from voluntary or involuntary disposition, all proceeds and products of
the Collateral of Grantor described herein, and all renewals,
replacements, substitutions, additions, accessions, rents, issues,
royalties and profits of any of the Grantor's Collateral, whether now
owned or existing or hereafter acquired or arising; and
(f) All Payment Intangibles, Deposit Accounts, now owned or
hereafter acquired and the Proceeds thereof; and
(g) All Proceeds of the foregoing in any form and including,
without limitation, anything received on sale, exchange, transfer,
collection or disposition of any Collateral granted herein
("Proceeds").
All of the foregoing is hereinafter collectively called the
"Collateral." Grantor may grant purchase money security interests in equipment
which shall be Collateral and such purchase money liens will not constitute an
event of default under the Loan Agreement to the extent that the debt incurred
and the lien granted are consistent with the Loan Agreement.
"Account Debtor(s)" shall have the complete definition of such term
under the Uniform Commercial Code.
"Secured Obligations" shall refer to the Notes or Indebtedness as
defined in and executed in connection with the Loan Agreement referenced or
defined as notes in the Loan Agreement or herein, including, without limitation,
any and all amendments to or extensions, renewals, modifications, substitutions
and replacements of the Notes, the Notes executed by Grantor to Bank, and all
other indebtedness or obligations of the Grantor to Bank whether listed herein
or
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under the Loan Agreement or this Agreement, including, without limitation,
listed in Paragraphs 1.3, 1.4 and/or 1.5, inclusive.
All capitalized terms shall have the meanings given such terms in the
Loan Agreement, unless otherwise defined herein.
1.3 NATURE OF INTEREST. The assignment of the Collateral herein is for
the purpose of securing the prompt payment of the Secured Obligations.
Notwithstanding any other provision hereof, Grantor shall remain liable to
observe and perform all the conditions and obligations to be observed and
performed by Grantor in accordance with and pursuant to the terms and provisions
of each of the Accounts. Bank shall have no obligation or liability under any of
the Accounts by reason of or arising out of this Security Agreement, or the
receipt by Bank of any payment relating to any of the Accounts. Bank shall not
be required or obligated in any manner to (i) perform any of the conditions and
obligations of Grantor under or pursuant to any of the Accounts; or (ii) make
any payment or any inquiry as to the nature or the sufficiency of any payment
received by Bank or the sufficiency of any performance by any party under any of
the Accounts; or (iii) present or file any claim or take any action to collect
or enforce any performance or payment of any amounts under any of the Accounts.
Bank shall use reasonable care in the custody and preservation of the Collateral
in Bank's possession. Bank shall not be obligated to preserve or protect any
rights with respect to the Collateral against prior parties. Bank may at any
time deliver the Collateral, or any part thereof, to Grantor, and the receipt of
Grantor shall be a complete and full discharge of Bank for the Collateral so
delivered, and Bank shall thereafter be discharged from any liability or
responsibility therefor.
1.4 ADDITIONAL AGREEMENTS. This Security Agreement is in addition to
and without limitation of any right of Bank under any other Security Agreement
granted by Grantor to Bank.
1.5 OTHER SECURED OBLIGATIONS. Grantor and Bank contemplate that
Borrower and Bank will, from time to time, engage in various transactions and
that, from time to time, other circumstances may arise, in which Borrower
becomes obligated to Bank. Grantor understands that some of those transactions
and circumstances may be of a type that is very different from the loan
transaction evidenced in part by the Notes and the circumstances connected
therewith. Grantor desires and intends that Bank engage in all such
transactions, and deal generally with Borrower, with the assurance that any and
all indebtedness and obligations now owed, and that may hereafter become owing,
to Bank from Borrower will be secured by the liens arising hereunder. Therefore,
the conveyance made by this Security Agreement, in addition to being made to
secure payment of the Notes, is also made to secure and enforce the payment of
all other indebtedness and obligations of Borrower to Bank, whether presently
existing, or in any manner or means hereafter incurred by Grantor, and evidenced
in any manner whatsoever, either by notes, advances, overdrafts, bookkeeping
entries, guaranty agreements, liens or security instruments, or any other method
or means, including any renewal and extension of the Notes, or of any part of
any present or future indebtedness, or other obligations of Borrower and
including any further loans and advancements made by Bank to Borrower. The fact
of repayment of all Notes, Indebtedness and Liabilities, and performance of all
other obligations, of Borrower, to Bank, shall not terminate the lien arising
hereunder unless the same be released by Bank at the
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request of Borrower; but otherwise it shall remain in full force and effect to
secure all future advances, indebtedness and other obligations, regardless of
any additional security that may be taken as to any past or future indebtedness
or other obligations.
1.6 FINANCING STATEMENTS. Grantor irrevocably appoints Bank as its
lawful attorney and agent to execute financing statements on Grantor's behalf,
and on its behalf to file Financing Statements signed by Bank and Grantor, if
necessary, in any appropriate public office.
1.7 DEPOSIT ACCOUNTS. Grantor irrevocably appoints Bank as its lawful
attorney and agent to advise any bank or financial institution with which a
Deposit Account of Grantor is maintained of the assignment and pledge of the
Deposit Accounts, cause such bank to execute an authenticated record or similar
agreement acknowledging the assignment and pledge to Bank of the Deposit
Accounts with that bank or financial institution and that such bank or financial
institution will comply with any instructions from Bank as a secured party
directing the disposition of the funds in the Deposit Accounts without further
inquiry to or the further consent of Grantor. Until Bank notifies the bank or
financial institution to the contrary, Grantor may have the limited right to
direct the disposition of funds from the Deposit Accounts until Bank exercises
its right to restrict Grantor's access to the funds in the Deposit Accounts
pursuant to the assignment and pledge and directs the disposition of the
proceeds from those Deposit Accounts. Bank shall also have a lien on and
security interest in all Deposit Accounts of Grantor with Bank.
2. REPRESENTATIONS AND WARRANTIES. In order to induce Bank to enter into the
Loan Agreement, Grantor represents and warrants to Bank that:
2.1 Except for Permitted Encumbrances and Permitted Liens, Grantor has
good and marketable title to its Collateral free and clear of any mortgages,
liens, security interests, claims, or other encumbrances, except for the
security interest created by this Security Agreement, purchase money security
interests and/or financing leases of certain equipment, liens disclosed to Bank
in writing and liens which are expressly subordinated to the Bank's security
interest. The execution, delivery, and performance of this Security Agreement
will not result in the creation or imposition of any other mortgage, lien,
security interest, claim, or other encumbrance in all or any part of the
Collateral. No lien, claim, financing statement, security agreement, mortgage,
or other writing is on file in any public filing or recording office or title
registration office giving notice of or creating (or purporting to give notice
of or create) any mortgage, lien, security interest, claim, or other encumbrance
on all or any part of the Collateral, except financing statements and security
interests in favor of Bank and equipment lenders and lessors. Bank has a valid
and continuing first lien on, and first perfected security interest in, the
Collateral, prior to all other mortgages, liens, security interests, claims or
other encumbrances, except for existing liens and leases covering equipment and
purchase money security interests in future equipment, and such security
interest will be enforceable as such against all other persons.
2.2 The amount and aging of each scheduled account in any financial
statement, accounts aging, or other material supplied by Grantor to Bank are
correctly stated. Each of the accounts arose from the performance of services or
from an outright and lawful sale or lease of goods by Grantor, and all such
goods have or will be shipped or delivered to the account debtor,
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and Grantor has possession of, or has delivered to Bank, all available shipping
and/or delivery receipts evidencing such shipments or delivery. Each of the
accounts is assignable. Unless otherwise disclosed to Bank in writing, no
account is subject to setoff, credit, allowance or adjustment by the account
debtor or by any other party to any agreement evidencing the account, except
such discount as may be allowed for prompt payment. No account debtor has
complained as to its liability on any account and has not returned any of the
goods from the sale or lease from which such accounts arose. Each of the
accounts arose in the ordinary course of Grantor's business, unless otherwise
disclosed to Bank in writing, No notice of the bankruptcy, insolvency, or
failure of any account debtor to pay debts as they become due has been received
by Grantor.
2.3 All tangible Collateral is in good repair and condition in all
material respects ordinary wear and tear excepted. Any and all tangible
Collateral, which is in the possession of any third parties, is held pursuant to
a contract and is clearly identified as the property of the Grantor.
3. COVENANTS. Grantor covenants and agrees to and with Bank at all times
throughout the term of this Agreement, such covenants and agreements in this
Agreement to be in addition to the covenants, duties, and obligations of Grantor
set forth in the Loan Agreement and other Loan Documents, that:
3.1 COLLECTION OF ACCOUNTS. Following the occurrence of an Event of
Default (as hereinafter defined), Bank is authorized at any time and from time
to time to take all actions necessary to collect all or any part of the Accounts
in its own name or in the name of Grantor. Upon request of Bank, Grantor shall
execute and deliver to Bank (in addition to documents previously delivered to
Bank) an assignment, in a form satisfactory to Bank, of all Grantor's right,
title, and interest in and to each of the Accounts, and shall obtain an
acknowledgment of assignment from any and all account debtors in a form
satisfactory to Bank. Following the occurrence of an Event of Default, if the
Accounts at any time include more than one Account of the same account debtor,
Bank may apply the proceeds of any collection received from such account debtor
toward the liquidation of any such Account as Bank may determine. Following the
occurrence of an Event of Default, Bank may settle or adjust all disputes or
claims directly with the account debtors with respect to any of the Accounts,
and may compromise or extend the time of payment for any of the Accounts on such
terms and conditions as Bank may determine without affecting the liability of
Grantor under this Security Agreement or any other document evidencing or
relating to the obligations. The costs of such collection and enforcement,
including attorneys' fees and out-of-pocket expenses and all other expenses and
liabilities resulting therefrom, shall be borne solely by Grantor and shall be
immediately due and payable to Bank by Grantor. Bank shall not be liable for
failure to collect or enforce any of the Accounts or for any act or omission on
the part of Bank or its officers, agents, and employees, except willful
misconduct. Until Bank exercises its right, Grantor is authorized to, and shall
use, its best efforts to effect the prompt collection of the Accounts. This
authorization may be terminated at any time following the occurrence of an Event
of Default, and Bank may, at its election, notify any account debtor on any of
the Accounts of the assignment thereof and effect collection of any of the
Accounts directly from the account debtor obligated thereon.
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3.2 DISPOSITION OF ACCOUNT COLLECTIONS. Grantor shall deposit all
Proceeds (with all appropriate endorsements) received by Grantor into its
accounts at Bank promptly after receipt by Grantor. After the occurrence of an
Event of Default, Bank may in its sole discretion apply the Proceeds to the
payment of any of the obligations or release such money to Grantor without
waiving the right of Bank to retain Proceeds which are subsequently delivered to
Bank. Bank shall have full power to collect, compromise, endorse, sell, or
otherwise deal with such Proceeds in Bank's own name or that of Grantor.
3.3 FURTHER ASSURANCE OF COLLATERAL. Grantor shall promptly and duly
execute and deliver to Bank all lien entry forms, financing statements,
continuation statements, instruments, documents, acknowledgments, and evidences
(including, without limitation, correction instruments) and take such further
action deemed by Bank to be necessary or desirable to perfect, and continue the
perfection of, the security interest granted herein and otherwise to obtain the
full benefits granted to Bank hereunder, and shall pay the cost of filing any
such financing statement, instrument, document, or evidence of taking such
action wherever and whenever deemed necessary or desirable by Bank. Upon request
of Bank, Grantor shall furnish appropriate searches to Bank, including a search
as to federal tax liens necessary to establish to the satisfaction of Bank of
Grantor's good and marketable title to the Collateral and Bank's first and prior
lien position with respect to all of the Collateral.
3.4 EXPENSES. Grantor shall pay all fees, costs, and expenses of Bank
(including, without limitation, attorneys' fees and court costs) incurred both
before and after an Event of Default incident to the transactions contemplated
in this Security Agreement, including, without limitation, the filing and
perfection of Bank's interest in the Collateral; the enforcement of Bank's
rights, powers, and remedies in this Security Agreement; and all costs of
selling, advertising, and other foreclosure expenses. All such fees, costs, and
expenses shall be due promptly upon invoice therefor and shall bear interest
from the date incurred from day to day at a varying rate per annum equal to the
Note Rate, or the Default Rate, after an Event of Default (as defined in the
Notes).
3.5 ADDITIONAL RIGHTS. Grantor hereby irrevocably appoints Bank to be
Grantor's true and lawful attorney, with full power of substitution, in Bank's
name or Grantor's name or otherwise for Bank's sole use and benefit, but at
Grantor's cost and expense, to exercise at any time all or any of the following
powers with respect to all or any of the Collateral:
(i) to demand, sue for, collect, receive and give acquittance
for any and all moneys due or to become due upon or by virtue thereof;
(ii) to receive, take, endorse, assign and deliver any and all
checks, notes, drafts and other negotiable and non-negotiable
instruments taken or received by Bank in connection therewith;
(iii) to settle, compromise, compound, prosecute or defend any
action or proceeding with respect thereto;
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(iv) to sell, transfer, assign or otherwise deal in or with
the same or the proceeds or avails thereof and to apply for and obtain
any required consents of any necessary parties or any governmental
authority for any such sale or other disposition, as fully and
effectually as if Bank were the absolute owner thereof; and
(v) to make any reasonable allowances and other reasonable
adjustments with reference thereto.
3.6 The exercise by Bank of, or failure to so exercise, any authority
granted hereinabove shall in no manner affect Grantor's liability to Bank, and,
provided further, that Bank shall be under no obligation or duty to exercise any
of the powers hereby conferred upon it and it shall be without liability for any
act or failure to act in connection with the collection of or the preservation
of any rights under any of the Accounts or Contract Rights.
4. ADDITIONAL COVENANTS OF GRANTOR. In addition to Grantor's covenants,
representations and warranties contained herein or in the Loan Agreement,
Grantor covenants that:
4.1 Grantor's records of the Collateral will be located at Grantor's
respective principal places of business or at the locations at which Grantor
conducts its respective businesses.
4.2 Grantor will defend the Collateral against any claims and demands
of all other persons at any time claiming the same or an interest therein which
would conflict with any claim or interest of Bank. Grantor will not encumber,
sell, transfer, assign, abandon or otherwise dispose of the Collateral except as
permitted under Section 5.5 and except for: (i) collection, discharge, discount,
compromise or expiration of Accounts, General Intangibles in the ordinary course
of Grantor's business, (ii) sale or transfer of Inventory, and cancellation of
Insurance in the ordinary course of business, and (iii) liens permitted
hereunder.
4.3 Grantor will have and maintain insurance covering the risks similar
to other businesses. As requested by Bank, Grantor shall deliver certificates
evidencing each policy of insurance with respect to the Inventory (except
liability insurance) to Bank and Bank is authorized by Grantor to act as its
attorney in collecting, adjusting, settling or canceling such insurance and
endorsing any drafts drawn by insurers.
4.4 Grantor will use the Collateral for business purposes and not in
violation of any statute or ordinance.
4.5 Upon reasonable advance notice to Grantor, Bank may examine and
inspect the Collateral at any reasonable time and at any reasonable place,
wherever located.
4.6 Grantor will pay promptly when due all taxes and assessments upon
the Collateral or upon its use or sale. At its option Bank may discharge taxes,
liens or other encumbrances at any time levied against or placed on the
Collateral which have not been stayed as to execution and contested with due
diligence in appropriate legal proceedings, and Bank, upon failure of
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Grantor to maintain insurance, may pay for insurance on the Collateral and may
pay for maintenance and preservation of the Collateral but is under no duty or
obligation to do so. Grantor shall reimburse Bank on demand for any such expense
incurred by Bank pursuant to the foregoing authorization with interest on such
sum at the rate of interest provided in the Notes or any extension or renewal
notes.
4.7 Grantor will at all times keep accurate and complete records of
Grantor's Accounts, and will deliver such reconciliation reports and other
financial information to Bank as Bank may at any time reasonably request. Upon
reasonable advance notice, Bank, or any of its agents, shall have the right to
call at Grantor's place or places of business during normal business hours and
without disrupting Grantor's operations, at intervals to be determined by Bank,
to inspect, audit, make test verifications and otherwise check and make extracts
from the books, records, journals, orders, receipts, correspondence and other
data relating to Grantor's Accounts, Insurance, General Intangibles or to any
other transactions between the parties hereto.
4.8 Upon Bank's written demand after the occurrence of an Event of
Default under the Loan Agreement, Grantor agrees to stamp all books and records
pertaining to Accounts and General Intangibles to evidence Bank's security
interest therein in a form satisfactory to Bank.
4.9 Grantor will from time to time upon demand furnish to Bank such
further information and will execute and deliver to Bank such financing
statements and assignments and other papers and will do all such acts and things
as may be necessary or appropriate to establish, perfect and maintain a valid
security interest in the Collateral as security.
4.10 Grantor will use its best efforts to obtain the consent of any
person, governmental instrumentality or agency, or public body or official to
the assignment hereunder of any Account or General Intangible if such consent
may be required by the terms of any contract or statute and if Bank so requests.
5. EQUIPMENT.
5.1 On Bank's request, Grantor shall identify from time to time the
locations of the Equipment and identify in writing the locations at which any
Equipment is used or stored. No Equipment will be removed from the locations
except for use in the ordinary course of business. No Equipment will be stored
at locations other than the locations identified in writing by Grantor. Bank may
during Grantor's business hours inspect and examine the Equipment and verify the
quality, quantity, value and condition thereof. Grantor shall from time to time,
at Bank's request, deliver to Bank any such information required by the Bank
regarding the Equipment and the value thereof.
5.2 Grantor shall conduct a physical review and description of
Equipment at such intervals as Bank may reasonably request and shall, upon the
request of Bank, promptly supply Bank with a copy of the report. Except after
the existence of an Event of Default which has been declared, Grantor may use
the Equipment in the ordinary course of its business. Grantor shall
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provide Bank with notice of the receipt of any Equipment subject to a purchase
money security interest or lease and provide Bank with a copy of any lease or
security agreements.
5.3 Equipment will not be moved from the locations at which it is
stored except in the ordinary course of Grantor's business. The Equipment may be
moved from one location to another without notice to Bank.
5.4 Grantor shall keep and maintain the Equipment in good and operating
condition and repair and make all necessary repairs thereto so that the value
and operating efficiency will be maintained and preserved. Grantor will provide
Bank with immediate notice of any material loss or damage to any Equipment.
Grantor has granted to Bank a lien on all rolling stock (whether already
encumbered or not), but will not file lien entry or other devices to perfect its
security interest in the rolling stock at this time. With respect to rolling
stock, Bank reserves the right to demand in its sole discretion the right to
obtain lien entry forms or other certificate of title forms to perfect Bank's
lien and Grantor on request of Bank shall immediately deliver to Bank, properly
endorsed, a lien entry form or other certificate of title or application
sufficient to perfect Bank's lien in rolling stock and shall take all actions
necessary to have Bank's lien properly recorded and perfected in such assets.
5.5 Grantor may from time to time substitute Equipment provided that
(i) the substitute Equipment is not subject to any lien other than purchase
money security interest and has a fair market value at least equal to the fair
market value of the Equipment for which it is substituted; (ii) the
marketability and operating integrity of the Equipment after such substitution
is not impaired; (iii) an Event of Default has not occurred (whether declared or
undeclared); and (iv) any such substitute Equipment shall become part of the
Collateral and the Equipment shall become the property of the Grantor free and
clear of any security interest other than that of Bank's or other purchase money
lender. Otherwise, Grantor shall not sell, exchange, lease, transfer or
otherwise dispose of any Equipment except for sales, which Bank has approved. At
all times pertinent, Grantor shall promptly notify Bank in writing of its
acquisition of any after-acquired Equipment and provided a description of
Equipment and its present location.
6. INVENTORY.
6.1 Grantor's Inventory shall be located at Grantor's places of
business in the ordinary course of business except for (i) Inventory in transit;
and (ii) Inventory at locations of which the Bank has been notified in writing.
No Inventory will be removed from the locations except for the purpose of sale
in the ordinary course of business. No Inventory will be stored at locations
other than identified herein except with the prior written consent of Bank. Bank
may, during Grantor's business hours, inspect and examine the Inventory and
verify the quality, quantity, value and condition thereof. Grantor shall, from
time to time, deliver to Bank any such information required by the Bank
regarding the Inventory and the value thereof.
6.2 Upon request of Bank, Grantor shall coordinate its respective
physical counts of inventory with the Bank, and shall, upon the request of Bank,
promptly supply Bank with a copy of the report accompanied by a statement of the
value of the Inventory as required. Except after
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the existence of an Event of Default which has been declared, Grantor may sell
Inventory in the ordinary course of its business, which does not include a
transfer in full or partial satisfaction of indebtedness or the sale in bulk of
the Inventory. At Bank's request, Grantor shall provide Bank with notice of the
receipt of any consigned Inventory or Inventory subject to a purchase money
security interest and provide Bank with a copy of any consignment or security
agreements, provided Bank shall not be deemed to have consented to such
relationships.
7. EVENTS OF DEFAULT.
7.1 Grantor shall be in default under this Agreement (an "Event of
Default") upon the occurrence of any Event of Default by Grantor specified in
the Loan Agreement or the Notes, or as follows:
(i) The failure to pay any interest or principal due by
Borrower to Bank;
(ii) There shall occur an Event of Default under the Notes or
any other Loan Documents between the Borrower and the Bank;
(iii) Any representation and warranty of the Borrower to the
Bank in connection with this transaction shall prove to have been false
in any material respect on the date when made or deemed to have been
made;
(iv) Grantor's failure to pay at maturity or, with any period
of grace, any material indebtedness to any other lender or failure to
observe any material term, provision or covenant with any other lender;
(v) The Grantor shall apply for or consent to the appointment
of a receiver, custodian, trustee, liquidator or any similar official;
generally not pay its debts as they become due; make an assignment for
the benefit of creditors, commence a voluntary case under the
Bankruptcy Code or similar Code hereafter in effect; take any action or
commence any action or proceeding relating to bankruptcy, insolvency,
reorganization, winding-up, composition or adjustment of debts; fail to
contest in a timely manner a Petition for an involuntary case against
the Borrower, or take any corporate action for the purposes of
winding-up or dissolving the corporation;
(vi) A judgment, not covered by insurance, shall be entered
against the Borrower or any Guarantor for sums in excess of $300,000.00
which judgment shall not have been stayed for thirty (30) days;
(vii) Grantor shall cease to operate or actively engage in
business or an order be entered against the Borrower by any regulatory
agency having jurisdiction over the Borrower closing the Borrower or
seizing the assets of the
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Borrower or providing for reorganization, liquidation or dissolution of
the Borrower;
(viii) Failure of any security interest or pledge of its
assets to constitute a valid first and prior security interest lien on
the Accounts and Inventory except as otherwise provided; or
(ix) The breach or default under any covenant, agreement,
term, condition, provision, representation or warranty contained in
this Agreement or any other loan documents which is not cured within
thirty (30) days after notice by Borrower to the Bank of the occurrence
thereof.
Grantor shall have cure periods set out in the Loan Agreement.
7.2 Upon the occurrence of an Event of Default: Bank shall have all of
the rights, powers and remedies set forth in the Loan Documents, the Notes, this
Security Agreement, and any instrument or other evidence of any of the Grantor's
other Liabilities secured hereby, together with the rights and remedies of a
secured party under the Uniform Commercial Code including, without limitation,
the right to sell, lease or otherwise dispose of any or all of the Collateral,
and to take possession of the Collateral, and for that purpose Bank may enter
peaceably any premises on which the Collateral or any part thereof may be
situated and remove the same therefrom and Grantor will not resist or interfere
with such action. Bank may require Grantor to assemble the Collateral and make
it available to Bank at a place to be designated by Bank which is reasonably
convenient to both parties. Grantor hereby agrees that its above-mentioned
address and the place or places of location of the Collateral are places
reasonably convenient to it to assemble the Collateral. Unless the Collateral is
perishable or threatens to decline speedily in value or is of a type customarily
sold on a recognized market, Bank will send Grantor reasonable notice of the
time and place of any public sale or reasonable notice of the time after which
any private sale or any other disposition thereof is to be made. The requirement
of sending reasonable notice shall be met if such notice is mailed, postage
prepaid, to Grantor at least ten (10) days before the time of the sale or
disposition. Bank may, at any time in its discretion, transfer any property
constituting Collateral into its own name or that of the nominee and receive the
income thereon and hold the same as security for the liabilities.
Insofar as Collateral shall consist of Accounts, General Intangibles or
the like, Bank may demand, collect, receipt for, settle, compromise, adjust, sue
for, foreclose or realize upon Collateral as Bank may determine, whether or not
Liabilities or Collateral are then due and for the purpose of realizing Bank's
rights therein, Bank may receive, open and dispose of mail addressed to Grantor,
may take possession of all Grantor's books and records pertaining to Accounts or
other Collateral, and may endorse notes, checks, drafts, money orders, documents
of title or other evidences of payment, shipment or storage of any form of
Collateral on behalf of and in the name of Grantor. After deducting all expenses
incurred by Bank in protecting or enforcing its rights in the Collateral, the
residue of any proceeds of collection or sale of the Collateral shall be applied
to the payment of principal or interest of Grantor's liabilities in such order
as Bank may determine, and any excess shall be returned to Grantor, and Grantor
shall
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remain liable for any deficiency. Bank may exercise its rights with respect to
Collateral without resorting to or regard to other collateral or sources of
reimbursement for liability.
7.3 Grantor recognizes that the Collateral may not be readily
marketable and may not be marketable at all if an Event of Default has occurred.
In order, therefore, to enable Bank to use such means as it may determine
necessary or advisable to realize upon the Collateral from time to time, Grantor
consents that Bank may use commercially reasonable means it may reasonably
consider necessary or advisable to sell any or all of the Collateral at any time
or times after default thereunder which shall be continuing, including, but not
restricted to, the giving of an option to purchase any or all of the Collateral
to any party and the extending of credit to any purchaser of such Collateral.
Bank may sell any or all of the Collateral or commit itself to sale without
limiting the amount sold to the amount of indebtedness secured thereby, plus
costs of collection. Because it would be unlikely that any party would become
interested in purchasing the Collateral as a result of the giving of any notice
of public sale, Grantor agrees that any such sale or sales may be private and
without competitive bidding.
7.4 In addition, after the occurrence of one or more Events of Default,
regardless of whether such Event(s) of Default were caused by Borrower or by
causes beyond the control of Grantor, Bank, in its absolute discretion, also may
selectively and successively pursue any or all of the following:
(a) PERFORMANCE. Bank may perform any covenant, obligation or
duty which gave rise or will give rise to the Event of Default, and
such performance shall not prevent Bank from exercising any or all of
its rights hereunder on account of such Event of Default or otherwise
relieve Borrower of any Event of Default. Nothing contained in this
Section shall obligate Bank to perform any covenants, obligation, or
duty of Grantor, and any such performance shall be entirely at the
option of Bank.
(b) POSSESSION OF PERSONAL PROPERTY. Bank may take possession
of, assemble, and collect the Collateral, and require Grantor to
assemble the Collateral and make it available at any place Bank may
designate so as to allow Bank to take possession of the Collateral.
(c) DEPOSIT ACCOUNTS. Bank may apply in satisfaction of the
Secured Obligations any deposits or other sums credited by or due from
Bank to Grantor.
(d) OTHER SECURITY. Bank may resort to any security given by
this Security Agreement, the Loan Documents, or in any of the other
Loan Documents, or to any other security or agreement now existing or
hereafter given, to secure the payment of the obligations, in whole or
in part, and in such portions and in such order as may seem best to
Bank in Bank's sole and uncontrolled discretion.
(e) OTHER REMEDIES. Bank may exercise any other legal or
equitable rights, powers, or remedies Bank may have under this Security
Agreement, the
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Loan Agreement or the Loan Documents or that Bank may have at law or in
equity, all specific remedies mentioned herein and therein being
cumulative of, and in addition to, all such legal and equitable rights,
powers, and remedies.
7.5 WAIVER. Grantor waives any and all rights to require Bank to
proceed against Borrower or any other person whomsoever, to proceed or exhaust
any Collateral or other security held by Bank, or to pursue any other remedy
available to Bank.
7.6 NOTICE OF SALE. Written notice mailed to Grantor, as provided
herein, ten (10) days prior to the date of public sale of the Collateral or
prior to the date, after which private sale of the Collateral will be made,
shall constitute reasonable notice.
7.7 MULTIPLE SALES. Several sales of the Collateral may be made without
exhausting Bank's right to such remedy for any unsatisfied part of the Secured
Obligations and without exhausting the power to exercise such remedy for any
other part of the Secured Obligations, whether matured at the time or
subsequently maturing. If a part of the Collateral is sold, and the proceeds
thereof do not fully pay and satisfy the Secured Obligations, such sale, if so
made, shall not in any manner affect the unpaid and unsatisfied part of the
Secured Obligations, but as to such unpaid and unsatisfied part, the Secured
Obligations shall remain in full force and effect.
7.8 RIGHT TO PURCHASE. In the case of any and all sales of any or all
of the Collateral, Bank shall have the right to purchase the Collateral being
sold, and in such cases the right to credit, upon the amount of the bid made
therefor (to the extent necessary to satisfy such bid), in the amount of the
Secured Obligations then due.
8. MISCELLANEOUS.
8.1 No delay or omission by Bank in exercising any of its rights
hereunder shall be deemed to constitute a waiver thereof. All rights and
remedies of Bank hereunder shall be cumulative and may be exercised singularly
or concurrently.
8.2 This Agreement shall be governed by and construed under the laws of
the State of Oklahoma. None of the items or provisions of this Agreement may be
waived, altered, modified, or amended except by an agreement in writing signed
by Bank and Grantor.
9. MISCELLANEOUS PROVISIONS.
9.1 GOVERNING LAW. This Security Agreement and the rights and
obligations of the parties under this Security Agreement shall be governed by,
and construed, interpreted, and enforced in accordance with the laws of the
State of Oklahoma.
9.2 TITLES; CAPTIONS. The titles, captions, and headings in this
Security Agreement are for convenience only, are not a part of this Security
Agreement, and shall have no effect upon the construction or interpretation of
all or any part of this Security Agreement.
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9.3 SEVERABILITY. In the event any one or more of the provisions
contained in this Security Agreement is determined to be invalid, illegal, or
unenforceable in any respect, the validity, legality, or enforceability of the
remaining provisions in this Security Agreement shall not in any way be affected
or impaired thereby.
9.4 ENTIRE AGREEMENT. This Security Agreement embodies the entire
agreement between Grantor and Bank with respect to the security interest
contained herein, and there are no oral agreements or other written agreements
existing between Grantor and Bank with respect to the security interest created
herein which are not expressly set forth in this Security Agreement or in the
other Loan Documents (as defined in the Loan Agreement).
9.5 TERM. This Security Agreement shall continue in full force and
effect, and Grantor shall be bound by and obligated to perform each and every
covenant contained in this Security Agreement until all obligations shall be
paid in full and Bank shall have no further or additional obligation to advance
funds under the Loan Agreement.
9.6 AMENDMENTS. No amendment to this Security Agreement shall be
effective unless such amendment is in a writing executed by Grantor and Bank.
9.7 WAIVER. No course of dealing and no failure to exercise or delay in
exercising, on the part of Grantor or Bank, any right, remedy, power, or
privilege under this Security Agreement shall operate as a waiver thereof. Any
single or partial exercise or attempted exercise of any right, remedy, power, or
privilege under this Security Agreement shall not preclude any other or further
exercise thereof or the independent, concurrent, or subsequent exercise of any
other right, remedy, power, or privilege. All waivers of any provision of this
Security Agreement by Grantor or Bank shall be in writing duly executed by
Grantor or Bank, respectively.
9.8 RELEASE. No transfer, renewal, extension, or assignment of this
Security Agreement or any interest therein, no release of any Guarantors, and no
loss, damage, or destruction of the Collateral shall release Grantor from its
obligations under this Security Agreement.
9.9 NOTICES. All notices, requests, and demands under this Security
Agreement, to be effective, shall be in writing and, unless otherwise expressly
provided in this Security Agreement, shall be deemed to have been duly given or
made when actually delivered to the intended addressee, when deposited in the
mail, first class postage prepaid, addressed to the last known address, or to
such address or other address as any party to this Security Agreement may
hereafter designate for such purpose in a written notice to the other party[ies]
as set out in the Loan Documents.
9.10 SUCCESSORS AND ASSIGNS. This Security Agreement shall be binding
upon, and shall inure to, the benefit of Grantor, Bank, and their respective
successors and assigns.
9.11 JURISDICTION. Without excluding any other jurisdiction, Grantor
and Bank consent to, and waive any objection to, the jurisdiction and venue of
the District Court of Tulsa
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County, State of Oklahoma, or the United States District Court for the Northern
District of Oklahoma, in any proceeding brought in connection with this Security
Agreement.
IN WITNESS WHEREOF, Grantor and Bank have caused this Security
Agreement to be duly executed and delivered, individually or by their proper and
duly authorized officers, as of the day and year first above written.
GRANTOR:
GREYSTONE MANUFACTURING, L.L.C.,
AN OKLAHOMA LIMITED LIABILITY COMPANY
By: /s/ Warren Kruger
-----------------------------
Warren Kruger, Manager
STATE OF OKLAHOMA )
) ss.
COUNTY OF TULSA )
On this 4th day of March, 2005, before me, the undersigned Notary
Public in and for said County and State, personally appeared Warren Kruger, as
Manager of GREYSTONE MANUFACTURING, L.L.C., who executed the foregoing
instrument on behalf of said corporation for the purposes therein expressed.
In witness whereof, I have hereunto set my hand and official seal the
day and year last above written.
/s/ Kay Maness
---------------------------
Notary Public Signature
My commission expires: My Commission Number:
June 2, 2006 02007996
[ S E A L ]
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BANK:
THE F&M BANK & TRUST COMPANY
By: /s/ J. Steven McNeely
----------------------------
J. Steven McNeely
Senior Executive Vice President
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