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EXHIBIT 10.9
AMENDED AND RESTATED COMMERCIAL SECURITY AGREEMENT
(FIBT Form 000-70034 (Rev. 9/86))
Dated as of March 1, 1996
Debtor(s) Secured Party
BEARCOM OPERATING, L.P. First Interstate Bank of Texas, N.A.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
(HEREINAFTER REFERRED TO AS "DEBTOR" (HEREINAFTER REFERRED TO AS "SECURED
WHETHER ONE OR MORE) PARTY")
WHEREAS, Debtor and Secured Party desire to amend and restate that
certain Commercial Security Agreement dated December 29, 1995 executed by Debtor
in favor of Secured Party;
FOR VALUE RECEIVED, the receipt and sufficiency of which is hereby
acknowledged, Debtor grants to Secured Party the security interest (and the
pledges and assignments as applicable) hereinafter set forth and agrees with
Secured Party as follows:
a. OBLIGATIONS SECURED. The security interest and
pledges and assignments as applicable granted
hereby are to secure punctual payment and performance of
the following: (i) that certain Renewal Master Revolving
Credit Note of even date herewith in the original
principal sum of $9,000,000.00, executed by Debtor and
payable to the order of Secured Party, and any and all
extensions, renewals, modifications and rearrangements
thereof; (ii) certain obligations of Debtor to Secured
Party under that certain Second Amended and Restated
Loan Agreement of even date herewith between Debtor and
Secured Party and all extensions, renewals,
modifications and rearrangements thereof; and (iii) any
and all other indebtedness, liabilities and obligations
whatsoever and of whatever nature of Debtor to Secured
Party whether direct or indirect, absolute or
contingent, primary or secondary, due or to become due
and whether now existing or hereafter arising and
howsoever evidenced or acquired, whether joint or
several, or joint and several (all of which are herein
separately and collectively referred to as the
"Obligations"). Debtor acknowledges that the security
interest (and pledges and assignments as applicable)
hereby granted shall secure all future advances from
Secured Party to BearCom, Inc., as well as any and all
other indebtedness, liabilities and obligations of
Debtor to Secured Party whether now in existence or
hereafter arising.
b. USE OF COLLATERAL. Debtor represents, warrants and
covenants that the Collateral will be used by the Debtor
primarily for business use, unless otherwise specified
as follows:
______ Personal, family or household purposes;
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______ Farming operations.
c. DESCRIPTION OF COLLATERAL. Debtor hereby grants to
Secured Party a security interest in (and hereby pledges
and assigns as applicable) and agrees that Secured Party
shall continue to have a security interest in (and a
pledge and assignment as applicable), the following
property, to-wit: (DEBTOR TO INITIAL APPROPRIATE BLANKS)
[ ] [X] ALL ACCOUNTS. A security interest in all accounts now owned or
existing as well as any and all that may hereafter arise or be
acquired by Debtor, and all the proceeds and products thereof,
including without limitation, all notes, drafts, acceptances,
instruments and chattel paper arising therefrom, and all
returned or repossessed goods arising from or relating to any
such accounts, or other proceeds of any sale or other
disposition of inventory.
[ ] [X] ALL INVENTORY. A security interest in all of Debtor's
inventory, including all goods, merchandise, raw materials,
goods in process, finished goods and other tangible personal
property, wheresoever located, now owned or hereafter acquired
and held for sale or lease or furnished or to be furnished
under contracts for service or used or consumed in Debtor's
business and all additions and accessions thereto and
contracts with respect thereto and all documents of title
evidencing or representing any part thereof, and all products
and proceeds thereof, including, without limitation, all of
such which is now or hereafter located at the following
locations: (give locations)
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
[ ] [X] ALL EQUIPMENT. A security interest in all equipment of every
nature and description whatsoever now owned or hereafter
acquired by Debtor including all appurtenances and additions
thereto and substitutions therefor, wheresoever located,
including all tools, parts and accessories used in connection
therewith.
[ ] [X] GENERAL INTANGIBLES. A security interest in all general
intangibles and other personal property now owned or hereafter
acquired by Debtor other than goods, accounts, chattel paper,
documents and instruments.
[ ] [X] CHATTEL PAPER. A security interest in all of Debtor's interest
under chattel paper, lease agreements and other instruments or
documents, whether now existing or owned by Debtor or
hereafter arising or acquired by Debtor, evidencing both a
debt and security interest in or lease of specific goods.
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[ ] [X] INSTRUMENTS. A pledge and assignment of and security interest
in all of Debtor's now owned or existing as well as hereafter
acquired or arising instruments and documents.
[ ] [ ] OTHER. A security interest in all of Debtor's interest, now
owned or hereafter acquired, in and to the property described
below: (give description)
The term "Collateral" as used in this Agreement shall mean and include,
and the security interest (and pledge and assignment as applicable) shall cover,
all of the foregoing property, as well as any accessions, additions and
attachments thereto and the proceeds and products thereof, including without
limitation, all cash, general intangibles, accounts, inventory, equipment,
fixtures, farm products, notes, drafts, acceptances, securities, instruments,
chattel paper, insurance proceeds payable because of loss or damage, or other
property, benefits or rights arising therefrom, and in and to all returned or
repossessed goods arising from or relating to any of the property described
herein or other proceeds of any sale or other disposition of such property.
As additional security for the punctual payment and performance of the
Obligations, and as part of the Collateral, Debtor hereby grants to Secured
Party a security interest in, and a pledge and assignment of, any and all money,
property, deposit accounts, accounts, securities, documents, chattel paper,
claims, demands, instruments, items or deposits of the Debtor, and each of them,
or to which any of them is a party, now held or hereafter coming within Secured
Party's custody or control, including, without limitation, all certificates of
deposit and other depository accounts, whether such have matured or the exercise
of Secured Party's rights results in loss of interest or principal or other
penalty on such deposits, but excluding deposits subject to tax penalties if
assigned. Without prior notice to or demand upon the Debtor, Secured Party may
exercise its rights granted above at any time when a default has occurred or
Secured Party deems itself insecure. Secured Party's rights and remedies under
this paragraph shall be in addition to and cumulative of any other rights or
remedies at law and equity, including, without limitation, any rights of set-off
to which Secured Party may be entitled.
d. REPRESENTATIONS, WARRANTIES AND COVENANTS OF DEBTOR.
Debtor represents and warrants as follows:
i. OWNERSHIP; NO ENCUMBRANCES. Except for the
security interest (and pledges and assignments
as applicable) granted hereby, the Debtor is,
and as to any property acquired after the date
hereof which is included within the Collateral,
Debtor will be, the owner of all such Collateral
free and clear from all charges, liens, security
interests, adverse claims and encumbrances of
any and every nature whatsoever.
ii. NO FINANCING STATEMENTS. There is no
financing statement or similar filing now on
file in any public office covering any part of
the Collateral, and Debtor will not execute and
there will not be on file in any public office
any financing statement or similar filing
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except the financing statements filed or to be
filed in favor of Secured Party.
iii. ACCURACY OF INFORMATION. All information
furnished to Secured Party concerning Debtor,
the Collateral and the Obligations, or otherwise
for the purpose of obtaining or maintaining
credit, is or will be at the time the same is
furnished, accurate and complete in all material
respects.
iv. AUTHORITY. Debtor has full right and
authority to execute and perform this Agreement
and to create the security interest (and pledges
and assignment as applicable) created by this
Agreement. The making and performance by Debtor
of this Agreement will not violate any articles
of incorporation, bylaws or similar document
respecting Debtor, any provision of law, any
order of court or governmental agency, or any
indenture or other agreement to which Debtor is
a party, or by which Debtor or any of Debtor's
property is bound, or be in conflict with,
result in a breach of or constitute (with due
notice and/or lapse of time) a default under any
such indenture or other agreement, or result in
the creation or imposition of any charge, lien,
security interest, claim or encumbrance of any
and every nature whatsoever upon the Collateral,
except as contemplated by this Agreement.
v. ADDRESSES. The address of Debtor designated
at the beginning of this Agreement is Debtor's
place of business if Debtor has only one place
of business; Debtor's chief executive office if
Debtor has more than one place of business; or
Debtor's residence if Debtor has no place of
business. Debtor agrees not to change such
address without advance written notice to
Secured Party.
e. GENERAL COVENANTS. Debtor covenants and agrees
as follows:
i. OPERATION OF THE COLLATERAL. Debtor agrees
to maintain and use the Collateral solely in the
conduct of its own business, in a careful and
proper manner, and in conformity with all
applicable permits or licenses. Debtor shall
comply in all respects with all applicable
statutes, laws, ordinances and regulations.
Debtor shall not use the Collateral in any
unlawful manner or for any unlawful purposes, or
in any manner or for any purpose that would
expose the Collateral to unusual risk, or to
penalty, forfeiture or capture, or that would
render inoperative any insurance in connection
with the Collateral.
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ii. CONDITION. Debtor shall maintain, service
and repair the Collateral so as to keep it in
good operating condition. Debtor shall replace
within a reasonable time all parts that may be
worn out, lost, destroyed or otherwise rendered
unfit for use, with appropriate replacement
parts. Debtor shall obtain and maintain in good
standing at all times all applicable permits,
licenses, registrations and certificates
respecting the Collateral.
iii. ASSESSMENTS. Debtor shall promptly pay when
due all taxes, assessments, license fees,
registration fees, and governmental charges
levied or assessed against Debtor or with
respect to the Collateral or any part thereof.
iv. NO ENCUMBRANCES. Debtor agrees not to suffer
or permit any charge, lien, security interest,
adverse claim or encumbrance of any and every
nature whatsoever against the Collateral or any
part thereof.
v. NO REMOVAL. Except as otherwise provided in
this Agreement, Debtor shall not remove the
Collateral from the county or counties
designated at the beginning of this Agreement
without Secured Party's prior written consent.
vi. NO TRANSFER. Except as otherwise provided in
this Agreement with respect to inventory, Debtor
shall not, without the prior written consent of
Secured Party, sell, assign, transfer, lease,
charter, encumber, hypothecate or dispose of the
Collateral, or any part thereof, or interest
therein, or offer to do any of the foregoing.
vii. NOTICES AND REPORTS. Debtor shall promptly
notify Secured Party in writing of any change in
the name, identity or structure of Debtor, any
charge, lien, security interest, claim or
encumbrance asserted against the Collateral, any
litigation against Debtor or the Collateral, any
theft, loss, injury or similar incident
involving the Collateral, and any other material
matter adversely affecting Debtor or the
Collateral. Debtor shall furnish such other
reports, information and data regarding Debtor's
financial condition and operations, the
Collateral and such other matters as Secured
Party may request from time to time.
viii. LANDLORD'S WAIVERS. Debtor shall furnish to
Secured Party, if requested, a landlord's waiver
of all liens with respect to any Collateral
covered by this Agreement that is or may be
located upon leased premises, such landlord's
waivers to be in such form and upon such terms
as are acceptable to Secured Party.
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ix. ADDITIONAL FILINGS. Debtor agrees to execute
and deliver such financing statement or
statements, or amendments thereof or supplements
thereto, or other documents as Secured Party may
from time to time require in order to comply
with the Texas Uniform Commercial Code (or other
applicable state law of the jurisdiction where
any of the Collateral is located) and to
preserve and protect the Secured Party's rights
to the Collateral.
x. PROTECTION OF COLLATERAL. Secured Party, at
its option, whether before or after default, but
without any obligation whatsoever to do so, may
(a) discharge taxes, claims, charges, liens,
security interests, assessments or other
encumbrances of any and every nature whatsoever
at any time levied, placed upon or asserted
against the Collateral, (b) place and pay for
insurance on the Collateral, including insurance
that only protects Secured Party's interest, (c)
pay for the repair, improvement, testing,
maintenance and preservation of the Collateral,
(d) pay any filing, recording, registration,
licensing or certification fees or other fees
and charges related to the Collateral, or (e)
take any other action to preserve and protect
the Collateral and Secured Party's rights and
remedies under this Agreement as Secured Party
may deem necessary or appropriate. Debtor agrees
that Secured Party shall have no duty or
obligation whatsoever to take any of the
foregoing action. Debtor agrees to promptly
reimburse Secured Party upon demand for any
payment made or any expense incurred by the
Secured Party pursuant to this authorization.
These payments and expenditures, together with
interest thereon from date incurred until paid
by Debtor at the maximum contract rate allowed
under applicable laws, which Debtor agrees to
pay, shall constitute additional Obligations and
shall be secured by and entitled to the benefits
of this Agreement.
xi. INSPECTION. Debtor shall at all reasonable
times allow Secured Party by or through any of
its officers, agents, attorneys or accountants,
to examine the Collateral, wherever located, and
to examine and make extracts from Debtor's books
and records.
xii. FURTHER ASSURANCES. Debtor shall do, make,
procure, execute and deliver all such additional
and further acts, things, deeds, interests and
assurances as Secured Party may require from
time to time to protect, assure and enforce
Secured Party's rights and remedies.
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xiii. INSURANCE. Debtor shall have and maintain
insurance at all time with respect to all
tangible Collateral insuring against risks of
fire (including so-called extended coverage),
theft and other risks as Secured Party may
require, containing such terms, in such form and
amounts and written by such companies as may be
satisfactory to Secured Party, all of such
insurance to contain loss payable clauses in
favor of Secured Party as its interest may
appear. All policies of insurance shall provide
for ten (10) days' written minimum cancellation
notice to Secured Party and at the request of
Secured Party shall be delivered to and held by
it. Secured Party is hereby authorized to act as
attorney for Debtor in obtaining, adjusting,
settling and canceling such insurance and
endorsing any drafts or instruments. Secured
Party shall be authorized to apply the proceeds
from any insurance to the Obligations secured
hereby whether or not such Obligations are then
due and payable. Debtor specifically authorizes
Secured Party to disclose information from the
policies of insurance to prospective insurers
regarding the Collateral.
xiv. ADDITIONAL COLLATERAL. If Secured Party
should at any time be of the opinion that the
Collateral is impaired, not sufficient or has
declined or may decline in value, or should
Secured Party deem payment of the Obligations to
be insecure, then Secured Party may call for
additional security satisfactory to Secured
Party, and Debtor promises to furnish such
additional security forthwith. The call for
additional security may be oral, by telegram, or
United States mail addressed to Debtor, and
shall not affect any other subsequent right of
Secured Party to exercise the same.
f. ADDITIONAL PROVISIONS REGARDING ACCOUNTS. The
following provisions shall apply to all accounts
included within the Collateral:
i. DEFINITIONS. The term "account", as used in
this Agreement, shall have the same meaning as
set forth in the Uniform Commercial Code of
Texas in effect as of the date of execution
hereof, and as set forth in any amendment to the
Uniform Commercial Code of Texas to become
effective after the date of execution hereof,
and also shall include all present and future
notes, instruments, documents, general
intangibles, drafts, acceptances and chattel
paper of Debtor, and the proceeds thereof.
ii. ADDITIONAL WARRANTIES. As of the time any
account becomes subject to the security interest
(or pledge of assignment as applicable) granted
hereby, Debtor shall be deemed further to have
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warranted as to each and all of such accounts as
follows: (a) each account and all papers and
documents relating thereto are genuine and in
all respects what they purport to be; (b) each
account is valid and subsisting and arises out
of a bona fide sale of goods sold and delivered
to, or out of and for services theretofore
actually rendered by the Debtor to, the account
debtor named in the account; (c) the amount of
the account represented as owing is the correct
amount actually and unconditionally owing except
for normal cash discounts and is not subject to
any set-offs, credits, defenses or counter-
charges; and (d) Debtor is the owner thereof
free and clear of any charges, liens, security
interests, adverse claims and encumbrances of
any and every nature whatsoever.
iii. COLLECTION OF ACCOUNTS. Secured Party shall
have the right in its own name or in the name of
the Debtor, whether before or after default, to
require Debtor forthwith to transmit all
proceeds of collection of accounts to Secured
Party, to notify any and all account debtors to
make payments of the accounts directly to
Secured Party, to demand, collect, receive,
receipt for, ▇▇▇ for, compound and give
acquittal for, any and all amounts due or to
become due on the accounts and to endorse the
name of the Debtor on all commercial paper given
in payment or part payment thereof, and in
Secured Party's discretion to file any claim or
take any other action or proceeding that Secured
Party may deem necessary or appropriate to
protect and preserve and realize upon the
accounts and related Collateral. Unless and
until Secured Party elects to collect accounts,
and the privilege of Debtor to collect accounts
is revoked by Secured Party in writing, Debtor
shall continue to collect accounts, account for
same to Secured Party, and shall not commingle
the proceeds of collection of accounts with any
funds of the Debtor. In order to assure
collection of accounts in which Secured Party
has a security interest (or pledge or assignment
of as applicable) hereunder, Secured Party may
notify the post office authorities to change the
address for delivery of mail addressed to Debtor
to such address as Secured Party may designate,
and to open and dispose of such mail and receive
the collections of accounts included herewith.
Secured Party shall have no duty or obligation
whatsoever to collect any account, or to take
any other action to preserve or protect the
Collateral; however, should Secured Party elect
to collect any account or take possession of any
Collateral, Debtor releases Secured Party from
any claim or claims for loss or damage arising
from any act or omission in connection
therewith.
iv. IDENTIFICATION AND ASSIGNMENT OF ACCOUNTS.
Upon Secured Party's request, whether before or
after default, Debtor shall take
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such action and execute and deliver such
documents as Secured Party may reasonably
request in order to identify, confirm, ▇▇▇▇,
segregate and assign accounts and to evidence
Secured Party's interest in same. Without
limitation of the foregoing, Debtor, upon
request, agrees to assign accounts to Secured
Party, identify and ▇▇▇▇ accounts as being
subject to the security interest (or pledge or
assignment as applicable) granted hereby, ▇▇▇▇
Debtor's books and records to reflect such
assignments, and forthwith to transmit to
Secured Party in the form as received by Debtor
any and all proceeds of collection of such
accounts.
v. ACCOUNT REPORTS. Upon Secured Party's
request, Debtor will deliver to Secured Party,
prior to the tenth (10th) day of each month, or
on such other frequency as Secured Party may
request, a written report in form and content
satisfactory to Secured Party, showing a listing
and aging of accounts and such other information
as Secured Party may request from time to time.
Debtor shall immediately notify Secured Party of
the assertion by any account debtor of any
set-off, defense or claim regarding an account
or any other matter adversely affecting an
account.
vi. SEGREGATION OF RETURNED GOODS. Returned or
repossessed goods arising from or relating to
any accounts included within the Collateral
shall if requested by Secured Party be held
separate and apart from any other property.
Debtor shall as often as requested by Secured
Party, but not less often than weekly even
though no special request has been made, report
to Secured Party the appropriate identifying
information with respect to any such returned or
repossessed goods relating to accounts included
in assignments or identifications made pursuant
hereto.
g. ADDITIONAL PROVISIONS REGARDING INVENTORY. The
following provisions shall apply to all inventory
included within the Collateral:
i. INVENTORY REPORTS. Upon request by Secured
Party, Debtor will deliver to Secured Party,
prior to the tenth (10th) day of each month, or
on such other frequency as Secured Party may
request, a written report in form and content
satisfactory to Secured Party, with respect to
the preceding month or other applicable period,
showing Debtor's opening inventory, inventory
acquired, inventory sold, inventory returned,
inventory used in Debtor's business, closing
inventory, any other inventory not within the
preceding categories, and such other information
as Secured Party may request from time to time.
Debtor shall immediately notify Secured Party
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of any matter adversely affecting the inventory,
including, without limitation, any event causing
loss or depreciation in the value of the
inventory and the amount of such possible loss
or depreciation.
ii. LOCATION OF INVENTORY. Debtor will promptly
notify Secured Party in writing of any addition
to, change in or discontinuance of its place(s)
of business as shown in this agreement, the
places at which inventory is located as shown
herein, the location of its chief executive
office and the location of the office where it
keeps its records as set forth herein. All
Collateral will be located at the place(s) of
business shown at the beginning of this
agreement as modified by any written notice(s)
given pursuant hereto.
iii. USE OF INVENTORY. Unless and until the
privilege of Debtor to use inventory in the
ordinary course of Debtor's business is revoked
by Secured Party in the event of default or if
Secured Party deems itself insecure, Debtor may
use the inventory in any manner not inconsistent
with this Agreement, may sell that part of the
Collateral consisting of inventory provided that
all such sales are in the ordinary course of
business, and may use and consume any raw
materials or supplies that are necessary in
order to carry on Debtor's business. A sale in
the ordinary course of business does not include
a transfer in partial or total satisfaction of a
debt.
iv. ACCOUNTS AS PROCEEDS. All accounts that are
proceeds of the inventory included within the
Collateral shall be subject to all of the terms
and provisions hereof pertaining to accounts.
v. PROTECTION OF INVENTORY. Debtor shall take
all action necessary to protect and preserve the
inventory.
h. ADDITIONAL PROVISIONS REGARDING SECURITIES AND
SIMILAR COLLATERAL. The following provisions shall apply
to all securities and similar property included within
the Collateral:
i. ADDITIONAL WARRANTIES. As to each and all
securities and similar property included within
the Collateral (including securities hereafter
acquired that are part of the Collateral),
Debtor further represents and warrants, as of
the time of. delivery of same to Secured Party,
as follows: (a) such securities are genuine,
validly issued and outstanding, fully paid and
nonassessable, and are not issued in violation
of the preemptive rights of any person or of any
agreement by which the issuer or obligor thereof
or Debtor is bound; (b) such securities are not
subject to any interest, option or
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right of any third person; (c) such securities
are in compliance with applicable law concerning
form, content and manner of preparation and
execution; and (d) Debtor acquired and holds the
securities in compliance with all applicable
laws and regulations.
ii. DIVIDENDS AND PROCEEDS. Any and all
payments, dividends, other distributions
(including stock redemption proceeds), or other
securities in respect of or in exchange for the
Collateral, whether by way of dividends, stock
dividends, recapitalizations, mergers,
consolidations, stock splits, combinations or
exchanges of shares or otherwise, received by
Debtor shall be held by Debtor in trust for
Secured Party and Debtor shall immediately
deliver same to Secured Party to be held as part
of the Collateral. Debtor may retain ordinary
cash dividends unless and until Secured Party
requests that same be paid and delivered to
Secured Party (which Secured Party may request
either before or after default).
iii. COLLECTIONS. Secured Party shall have the
right at any time and from time to time (whether
before or after default) to notify and direct
the issuer or obligor to make all payments,
dividends and distributions regarding the
Collateral directly to Secured Party. Secured
Party shall have the authority to demand of the
issuer or obligor, and to receive and receipt
for, any and all payments, dividends and other
distributions payable in respect thereof,
regardless of the medium in which paid and
whether they are ordinary or extraordinary. Each
issuer and obligor making payment to Secured
Party hereunder shall be fully protected in
relying on the written statement of Secured
Party that it then holds a security interest
which entitles it to receive such payment, and
the receipt by Secured Party for such payment
shall be full acquittance therefor to the one
making such payment.
iv. VOTING RIGHTS. Upon default, or if Secured
Party deems itself insecure, Secured Party shall
have the right, at its discretion, to transfer
to or register in the name of Secured Party or
any nominee of Secured Party any of the
Collateral, and/or to exercise any or all voting
rights as to any or all of the Collateral. For
such purposes, Debtor hereby names, constitutes
and appoints the President or any Vice President
of Secured Party as Debtor's proxy in the
Debtor's name, place and stead to vote any and
all of the securities, as such proxy may elect,
for and in the name, place and stead of Debtor,
as to all matters coming before shareholders,
such proxy to be irrevocable and deemed coupled
with an interest. The rights, powers and
authority of said proxy shall remain in full
force and effect, and shall not be rescinded,
revoked, terminated,
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amended or otherwise modified, until all
Obligations have been fully satisfied.
v. NO DUTY. Secured Party shall never be liable
for its failure to give notice to Debtor of
default in the payment of or upon the
Collateral. Secured Party shall have no duty to
fix or preserve rights against prior parties to
the Collateral and shall never be liable for its
failure to use diligence to collect any amount
payable in respect to the Collateral, but shall
be liable only to account to Debtor for what it
may actually collect or receive thereon. Without
limiting the foregoing, it is specifically
understood and agreed that Secured Party shall
have no responsibility for ascertaining any
maturities, calls, conversions, exchanges,
offers, tenders, or similar matters relating to
any of the Collateral or for informing Debtor
with respect to any of such matters
(irrespective of whether Secured Party actually
has, or may be deemed to have, knowledge
thereof). The foregoing provisions of this
paragraph shall be fully applicable to all
securities or similar property held in pledge
hereunder, irrespective of whether Secured Party
may have exercised any right to have such
securities or similar property registered in its
name or in the name of a nominee.
vi. FURTHER ASSURANCES. Debtor agrees to execute
such stock powers, endorse such instruments, or
execute such additional pledge agreements or
other documents as may be required by the
Secured Party in order effectively to grant to
Secured Party the security interest in (and
pledge and assignment of) the Collateral and to
enforce and exercise Secured Party's rights
regarding same.
vii. SECURITIES LAWS. Debtor hereby agrees to
cooperate fully with Secured Party in order to
permit Secured Party to sell, at foreclosure or
other private sale, the Collateral pledged
hereunder. Specifically, Debtor agrees to fully
comply with the securities laws of the United
States and of the State of Texas and to take
such action as may be necessary to permit
Secured Party to sell or otherwise transfer the
securities pledged hereunder in compliance with
such laws. Without limiting the foregoing,
Debtor, at its own expense, upon request by
Secured Party, agrees to effect and obtain such
registrations, filings, statements, rulings,
consents, and other matters as Secured Party may
request.
viii. POWER OF ATTORNEY. Debtor hereby makes,
constitutes and appoints Secured Party or its
nominee, its true and lawful attorney in fact
and in its name, place, and stead, and on its
behalf, and for its use and benefit to complete,
execute and file with the United
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States Securities and Exchange Commission one or
more notices of proposed sale of securities
pursuant to Rule 144 under the Securities Act of
1933 and/or any similar filings or notices with
any applicable state agencies, and said attorney
in fact shall have full power and authority to
do, take and perform all and every act and thing
whatsoever requisite, proper or necessary to be
done, in the exercise of the rights and powers
herein granted, as fully to all intents and
purposes as Debtor might or could do if
personally present. This power shall be
irrevocable and deemed coupled with an interest.
The rights, powers and authority of said
attorney in fact herein granted shall commence
and be in full force and effect from the date of
this agreement, and such rights, powers and
authority shall remain in full force and effect,
and this power of attorney shall not be
rescinded, revoked, terminated, amended or
otherwise modified, until all Obligations have
been fully satisfied.
ix. PRIVATE SALES. Because of the Securities Act
of 1933, as amended, or any other laws or
regulations, there may be legal restrictions or
limitations affecting Secured Party in any
attempts to dispose of certain portions of the
Collateral in the enforcement of its rights and
remedies hereunder. For these reasons Secured
Party is hereby authorized by Debtor, but not
obligated, in the event any default hereunder,
to sell all or any part of the Collateral at
private sale, subject to investment letter or in
any other manner which will not require the
Collateral, or any part thereof, to be
registered in accordance with the securities Act
of 1933, as amended, or the rules and
regulations promulgated thereunder, or any other
law or regulation. Secured Party is also hereby
authorized by Debtor, but not obligated, to take
such actions, give such notices, obtain such
rulings and consents, and do such other things
as Secured Party may deem appropriate in the
event of a sale or disposition of any of the
Collateral. Debtor clearly understands that
Secured Party may in its discretion approach a
restricted number of potential purchasers and
that a sale under such circumstances may yield a
lower price for the Collateral or any part or
parts thereof than would otherwise be obtainable
if same were registered and sold in the open
market, and Debtor agrees that such private
sales shall constitute a commercially reasonable
method of disposing of the Collateral.
i. ADDITIONAL PROVISIONS REGARDING CERTIFICATES OF
DEPOSIT AND SIMILAR COLLATERAL. The following provisions
shall apply to certificates of deposit and similar
property included within the Collateral:
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i. COLLECTION OF DEPOSITS. Debtor agrees that
Secured Party may, at any time (whether before
or after default) and in its sole discretion,
surrender for payment and obtain payment of any
portion of the Collateral, whether such have
matured or the exercise of Secured Party's
rights results in loss of interest or principal
or other penalty on such deposits, and, in
connection therewith, cause payment to be made
directly to Secured Party.
ii. NOTICE TO THIRD PARTY ISSUER. With regard to
any certificates of deposit or similar
Collateral for which Secured Party is not the
issuer, Debtor agrees to notify the issuer or
obligor of the interests hereby granted to
Secured Party and to obtain from such issuer or
obligor acknowledgement of the interests in
favor of Secured Party and the issuer's or
obligor's agreement to waive in favor of Secured
Party any and all rights of set-off or similar
rights or remedies to which such issuer or
obligor may be entitled, and, in connection
therewith, to execute and cause the issuer or
obligor to execute, any and all acknowledgments,
waivers and other agreements in such form and
upon such terms as Secured Party may request.
iii. PROCEEDS. Any and all replacement or renewal
certificates, instruments, or other benefits or
proceeds related to the Collateral that are
received by Debtor shall be held by Debtor in
trust for Secured Party and immediately
delivered to Secured Party to be held as part of
the Collateral.
iv. NO DUTY. Secured Party shall never be liable
for its failure to give notice to Debtor of
default in the payment of or upon the
Collateral. Secured Party shall have no duty to
fix or preserve rights against prior parties to
the Collateral and shall never be liable for its
failure to use diligence to collect any amount
payable in respect to the Collateral, but shall
be liable only to account to Debtor for what it
may actually collect or receive thereon. Without
limiting the foregoing, it is specifically
understood and agreed that Secured Party shall
have no responsibility for ascertaining any
maturities or similar matters relating to any of
the Collateral or for informing Debtor with
respect to any of such matters (irrespective of
whether Secured Party actually has, or may be
deemed to have, knowledge thereof).
j. EVENTS OF DEFAULT. Debtor shall be in default
hereunder upon the happening of any of the following
events or conditions: (i) non-payment when due (whether
by acceleration of maturity or otherwise) of any payment
of principal, interest or other amount due on any
Obligation;
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(ii) the occurrence of any event which under the
terms of any evidence of indebtedness,
indenture, loan agreement, security agreement or
similar instrument permits the acceleration of
maturity of any obligation of Debtor or BearCom,
Inc. (whether to Secured Party or to others);
(iii) any representation or warranty made by
Debtor to Secured Party in connection with this
Agreement, the Collateral or the Obligations, or
in any statements or certificates, proves
incorrect in any material respect as of the date
of the making or the issuance thereof; (iv)
default occurs in the observance or performance
of, or if Debtor fails to furnish adequate
evidence of performance of, any provision of
this Agreement or of any note, assignment,
transfer, other agreement, document or
instrument delivered by Debtor to Secured Party
in connection with this Agreement, the
Collateral or the Obligations; (v) death,
dissolution, liquidation, termination of
existence, insolvency, business failure or
winding-up of Debtor or any maker, endorser,
guarantor, surety or other party liable in any
capacity for any of the Obligations; (vi) the
commission of an act of bankruptcy by, or the
application for appointment of a receiver or any
other legal custodian for any part of the
property of, assignment for the benefit of
creditors by, or the commencement of any
proceedings under any bankruptcy, arrangement,
reorganization, insolvency or similar laws for
the relief of debtors by or against, the Debtor
or any maker, endorser, guarantor, surety or
other party primarily or secondarily liable for
any of the Obligations; (vii) the Collateral
becomes, in the judgment of Secured Party,
impaired, unsatisfactory or insufficient in
character or value; or (viii) the filing of any
levy, attachment, execution, garnishment or
other process against the Debtor or any of the
Collateral or any maker, endorser, guarantor,
surety, or other party liable in any capacity
for any of the Obligations.
k REMEDIES. Upon the occurrence of an event of
default, or if Secured Party deems payment of the
Obligations to be insecure, Secured Party, at its
option, shall be entitled to exercise any one or more of
the following remedies (all of which are cumulative):
i DECLARE OBLIGATIONS DUE. Secured
Party, at its option, may declare the
Obligations or any part thereof immediately due
and payable, without demand, notice of intention
to accelerate, notice of acceleration, notice of
non-payment, presentment, protest, notice of
dishonor, or any other notice whatsoever, all of
which are hereby waived by Debtor and any maker,
endorser, guarantor, surety or other party
liable in any capacity for any of the
Obligations.
ii REMEDIES. Secured Party shall have all of
the rights and remedies provided for in this
Agreement and in any other agreements executed
by Debtor, the rights and remedies of the
Uniform Commercial Code of Texas, and any and
all of the rights
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and remedies at law and in equity, all of which
shall be. deemed cumulative. Without limiting
the foregoing, Debtor agrees that Secured Party
shall have the right to: (a) require Debtor to
assemble the Collateral and make it available to
Secured Party at a place designated by Secured
Party that is reasonably convenient to both '
parties, which Debtor agrees to do; (b)
peaceably take possession of the Collateral and
remove same, with or without judicial process;
(c) without removal, render equipment included
within the Collateral unusable, and dispose of
the Collateral on the Debtor's premises; (d)
sell, lease or otherwise dispose of the
Collateral, at one or more locations, by public
or private proceedings, for cash or credit,
without assumption of credit risk; and/or (e)
whether before or after default, collect and
receipt for, compound, compromise, and settle,
and give releases, discharges and acquittances
with respect to, any and all amounts owed by any
person or entity with respect to the Collateral.
Unless the Collateral is perishable or threatens
to decline speedily in value or is of a type
customarily sold on a recognized market, Secured
Party will send Debtor reasonable notice of the
time and place of any public sale or of the time
after which any private sale or other
disposition will be made. Any requirement of
reasonable notice to Debtor shall be met if such
notice is mailed, postage prepaid, to Debtor at
the address of Debtor designated at the
beginning of this Agreement, at least five (5)
days before the day of any public sale or at
least five (5) days before the time after which
any private sale or other disposition will be
made.
iii EXPENSES. Debtor shall be liable for and
agrees to pay the reasonable expenses incurred
by Secured Party in enforcing its rights and
remedies, in retaking, holding, testing,
repairing, improving, selling, leasing or
disposing of the Collateral, or like expenses,
including, without limitation, attorneys' fees
and legal expenses incurred by Secured Party.
These expenses, together with interest thereon
from date incurred until paid by Debtor at the
maximum contract rate allowed under applicable
laws, which Debtor agrees to pay, shall
constitute additional Obligations and shall be
secured by and entitled to the benefits of this
Agreement.
iv PROCEEDS; SURPLUS; DEFICIENCIES. Proceeds
received by Secured Party from disposition of
the Collateral shall be applied toward Secured
Party's expenses and other Obligations in such
order or manner as Secured Party may elect.
Debtor shall be entitled to any surplus if one
results after lawful application of the
proceeds. Debtor shall remain liable for any
deficiency.
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v. REMEDIES CUMULATIVE. The rights and remedies
of Secured Party are cumulative and the exercise
of any one or more of the rights or remedies
shall not be deemed an election of rights or
remedies or a waiver of any other right or
remedy. Secured Party may remedy any default and
may waive any default without waiving the
default remedied or without waiving any other
prior or subsequent default.
l. OTHER AGREEMENTS.
i. SAVINGS CLAUSE. Notwithstanding any
provision to the contrary herein, or in any of
the documents evidencing the Obligations or
otherwise relating thereto, no such provision
shall require the payment or permit the
collection of interest in excess of the maximum
permitted by applicable usury laws. If any such
excessive interest is so provided for, then in
such event (i) the provisions of this paragraph
shall govern and control, (ii) neither the
Debtor nor his heirs, legal representatives,
successors or assigns or any other party liable
for the payment thereof, shall be obligated to
pay the amount of such interest to the extent
that is in excess of the maximum amount
permitted by law, (iii) any such excess interest
that may have been collected shall be, at the
option of the holder of the instrument
evidencing the Obligations, either applied as a
credit against the then unpaid principal amount
thereof or refunded to the maker thereof, and
(iv) the effective rate of interest shall be
automatically reduced to the maximum lawful rate
under applicable usury laws as now or hereafter
construed by the courts having jurisdiction.
ii. JOINT AND SEVERAL RESPONSIBILITY. If this
Security Agreement is executed by more than one
Debtor, the obligations of all such Debtors
shall be joint and several.
iii. WAIVERS. Debtor and any maker, endorser,
guarantor, surety or other party liable in any
capacity respecting the Obligations hereby waive
demand, notice of intention to accelerate,
notice of acceleration, notice of non-payment,
presentment, protest, notice of dishonor and any
other similar notice whatsoever.
iv. SEVERABILITY. Any provision hereof found to
be invalid by courts having jurisdiction shall
be invalid only with respect to such provision
(and then only to the extent necessary to avoid
such invalidity). The offending provision shall
be modified to the maximum extent possible to
confer upon Secured Party the benefits intended
thereby. Such provision as modified and the
remaining
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provisions hereof shall be construed and
enforced to the same effect as if such offending
provision (or portion thereof) had not been
contained herein, to the maximum extent
possible.
v. USE OF COPIES. Any carbon, photographic or
other reproduction of any financing statement
signed by Debtor is sufficient as a financing
statement for all purposes, including without
limitation, filing in any state as may be
permitted by the provisions of the Uniform
Commercial Code of such state.
vi. RELATIONSHIP TO OTHER AGREEMENTS. This
Security Agreement and the security interests
(and pledges and assignments as applicable)
herein granted are in addition to (and not in
substitution, novation or discharge of) any and
all prior or contemporaneous security
agreements, security interests, pledges,
assignments, liens, rights, titles or other
interests in favor of Secured Party or assigned
to Secured Party by others in connection with
the Obligations. All rights and remedies of
Secured Party in all such agreements are
cumulative, but in the event of actual conflict
in terms and conditions, the terms and
conditions of the latest security agreement
shall govern and control.
vii. NOTICES. Any notice or demand given by
Secured Party to Debtor in connection with this
Agreement, the Collateral or the Obligations,
shall be deemed given and effective upon deposit
in the United States mail, postage prepaid,
addressed to Debtor at the address of Debtor
designated at the beginning of this Agreement.
Actual notice to Debtor shall always be
effective no matter how given or received.
viii. HEADINGS AND GENDER. Paragraph headings in
this Agreement are for convenience only and
shall be given no meaning or significance in
interpreting this Agreement. All words used
herein shall be construed to be of such gender
or number as the circumstances require.
ix. AMENDMENTS. Neither this Agreement nor any
of its provisions may be changed, amended,
modified, waived or discharged orally, but only
by an instrument in writing signed by the party
against whom enforcement of the change,
amendment, modification, waiver or discharge is
sought.
x. CONTINUING AGREEMENT. The security interest
(and pledges and assignments as applicable)
hereby granted and all of the terms and
provisions in this Agreement shall be deemed a
continuing
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agreement and shall continue in full force and
effect until terminated in writing. Any such
revocation or termination shall only be
effective if explicitly confirmed in a signed
writing issued by Secured Party to such effect
and shall in no way impair or affect any
transactions entered into or rights created or
Obligations incurred or arising prior to such
revocation or termination as to which this
Agreement shall be fully operative until same
are repaid and discharged in full. Unless
otherwise required by applicable law, Secured
Party shall be under no obligation to issue a
termination statement or similar documents
unless Debtor requests same in writing and,
provided further, that all Obligations have been
repaid and discharged in full and there are no
commitments to make advances, incur any
Obligations or otherwise give value.
xi. BINDING EFFECT. The provisions of this
Security Agreement shall be binding upon the
heirs, personal representatives, successors and
assigns of Debtor and the rights, powers and
remedies of Secured Party hereunder shall inure
to the benefit of the successors and assigns of
Secured Party.
xii. GOVERNING LAW. This Security Agreement shall
be governed by the law of the State of Texas and
applicable federal law.
xiii. AGREEMENT FOR BINDING ARBITRATION. DEBTOR
AGREES TO BE BOUND BY THE TERMS AND PROVISIONS
OF THE ARBITRATION PROGRAM (DATED 9/23/94) WHICH
IS INCORPORATED BY REFERENCE HEREIN AND IS
ACKNOWLEDGED AS RECEIVED BY DEBTOR PURSUANT TO
WHICH ANY AND ALL DISPUTES SHALL BE RESOLVED BY
MANDATORY BINDING ARBITRATION UPON THE REQUEST
OF ANY PARTY.
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EXECUTED as of this 1st day of March, 1996.
"Debtor"
BEARCOM OPERATING, L.P.
By: PageCom GP, Inc.,
in its capacity as
general partner
By:
----------------------------
Name:
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Title:
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