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EXHIBIT 4.3
TRANSAMERICAN REFINING CORPORATION
SECURITY AND PLEDGE AGREEMENT
by
TRANSAMERICAN REFINING CORPORATION
in favor of
TRANSAMERICAN ENERGY CORPORATION
Dated as of June 13, 1997
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TRANSAMERICAN REFINING CORPORATION
SECURITY AND PLEDGE AGREEMENT
This Security and Pledge Agreement (this "Agreement") is made
and entered into as of June 13, 1997 by TransAmerican Refining Corporation, a
Texas corporation (the "Company"), in favor of TransAmerican Energy Corporation
(the "Lender").
RECITALS
WHEREAS, the Company has entered into that certain Loan
Agreement dated as of June 13, 1997 (the "TARC Intercompany Loan Agreement")
executed by the Company in favor of the Lender; and
WHEREAS, the Company's obligations under the TARC Intercompany
Loan Agreement are further evidenced by that certain promissory note in the
amount of $920,000,000 dated as of June 13, 1997 (the "TARC Intercompany
Note"), and executed by the Company in favor of the Lender; and
WHEREAS, the obligations of the Company under the TARC
Intercompany Note and the TARC Intercompany Loan Agreement are secured by that
certain Act of Mortgage, Security Agreement and Financing Statement dated as of
June 13, 1997 (the "TARC Mortgage"); and
WHEREAS, in order to secure the payment and performance in
full of the obligations of the Company under the TARC Intercompany Loan
Agreement, the parties hereto desire to set forth their mutual understanding
and certain agreements regarding the terms and conditions of the grant of a
security interest in the Company UCC Collateral, the Assigned Collateral and
the Pledged Collateral (as defined below);
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Company and the
Lender hereby agree as follows:
Section 1. Definitions.
(a) As used in this Agreement, capitalized terms not
otherwise defined herein have the meanings set forth in the TARC
Intercompany Loan Agreement, and the following terms shall have the
respective meanings set forth below (such meanings to be equally
applicable to both the singular and plural forms of the terms
defined):
"Assigned Collateral" shall have the meaning assigned to that
term in Section 2 of this Agreement.
"Collateral" shall have the meaning assigned to that term in
Section 2 of this Agreement.
"Default" and "Event of Default" shall have the meanings
assigned to those terms in Section 6(a) of this Agreement.
"Disbursement Account" means the account or accounts owned by
the Company and created by that certain Disbursement Agreement by and
among the Company, the Lender, the disbursement agent named therein,
or its successor, and the construction supervisor named therein, as
amended pursuant to the terms thereof.
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"Equipment" shall mean and include all now owned or hereafter
acquired Vehicles, rolling stock and related equipment and other
assets accounted for as equipment by the Company in its financial
statements, all proceeds thereof, and all documents of title, books,
records, ledger cards, files, correspondence and computer files,
tapes, disks and related data processing software that at any time
evidence or contain information relating to the foregoing; provided,
however, that "Equipment" shall not include any assets constituting
part of the Company's refinery or used in the Company's processing or
storage operations.
"GAAP" means generally accepted accounting principles of the
United States of America, consistently applied.
"Obligations" shall have the meaning assigned to that term in
Section 2 of this Agreement.
"Indebtedness" means the following indebtedness and
liabilities of the Company (and any extensions, renewals, refunding,
increases, substitutions, replacements, consolidations, modifications
or rearrangements of such indebtedness and liabilities, regardless of
whether the Company executes any extension agreement or renewal
instrument):
(i) all amounts advanced or expended by the
Lender under the TARC Intercompany Loan Agreement and/or under
or in connection with this Agreement, all reasonable costs and
out-of-pocket expenses (excluding expenses representing
administrative overhead) at any time and from time to time
incurred by the Lender in connection with the administration
and/or enforcement of this Agreement (including, without
limitation, the reasonable fees and out-of-pocket expenses of
counsel employed by the Lender in connection therewith), and
all indemnities at any time and from time to time payable
hereunder to the Lender, and
(ii) all principal, premium and accrued interest
owing on the TARC Intercompany Note, and
(iii) all other amounts payable by the Company
under the TARC Intercompany Loan Agreement.
"Inventory" shall mean and include, feedstocks, refined
products, chemicals and catalysts, other supplies and storeroom items
and similar items accounted for as inventory by the Company on its
financial statements, all proceeds thereof, and all documents of
title, books, records, ledger cards, files, correspondence, and
computer files, tapes, disks and related data processing software that
at any time evidence or contain information relating to the foregoing.
"Pledged Collateral" shall have the meaning assigned to that
term in Section 2 of this Agreement.
"Receivables" shall mean and include, any and all now owned or
hereafter acquired "accounts" as such term is defined in Article 9 of
the Uniform Commercial Code in the State of New York, all products and
proceeds thereof, and all books, records, ledger cards, files,
correspondence, and computer files, tapes, disks or software that at
any time evidence or contain information relating to the foregoing.
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"UCC" means the Uniform Commercial Code as in effect in the
State of New York.
"Vehicles" means all trucks, automobiles, trailers and other
vehicles covered by a certificate of title.
(b) All terms used in this Agreement which are defined in
the UCC, other than those which are defined in the Indenture or
specifically defined in Section 1(a) above, shall have the same
meaning herein as in the UCC.
Section 2. Grant of Security Interest.
(a) The Company hereby grants to the Lender, to secure
the payment and performance in full of the Obligations, a security
interest in and a lien on and so pledges and assigns to the Lender all
of the Company's right, title and interest in, to and under any and
all of the following described property, assets and rights, in each
case, wherever located, whether now owned or hereafter acquired or
arising, all accessions and additions thereto, all substitutions and
replacements therefor, and all proceeds and products thereof and
assigns all rights in and to all collateral securing the following
described property, assets and rights:
(i) all personal and fixture property of every
kind and nature including, without limitation, all furniture,
fixtures, raw materials, goods, contract rights, rights to the
payment of money, insurance refund claims and all other
insurance claims and proceeds, tort claims, chattel paper,
documents, instruments (including certificated securities),
deposit accounts and all general intangibles including,
without limitation, all uncertificated securities, tax refund
claims, license fees, patents, patent applications,
trademarks, trademark applications, trade names, copyrights,
copyright applications, rights to xxx and recover for past
infringement of patents, trademarks and copyrights, computer
programs, computer software, engineering drawings, service
marks, customer lists, goodwill, and all licenses, permits,
agreements of any kind or nature pursuant to which the Company
possesses, uses or has authority to possess or use property
(whether tangible or intangible) of others or others possess,
use or have authority to possess or use property (whether
tangible or intangible) of the Company, and all recorded data
of any kind or nature, regardless of the medium of recording
including, without limitation, all software, writings, plans,
specifications and schematics (any and all such property being
the "Company UCC Collateral"); provided, however, that nothing
herein shall be construed to include within and there is
expressly excluded from, the Company UCC Collateral, any now
owned or hereafter acquired Equipment, Inventory or
Receivables .
(b) The Company also pledges to the Lender, and grants to
the Lender a security interest in all of the Company's right, title
and interest in, to and under any and all of the following described
property, rights and interests, in each case, wherever located,
whether now owned or hereafter acquired or arising, all accessions and
additions thereto, all substitutions and replacements therefor, and
all proceeds and products thereof (collectively, the "Pledged
Collateral"):
(i) all of the issued and outstanding shares of
common stock identified on Schedule 2(b) attached hereto of
any other subsidiary of the Company presently existing or
hereafter created or acquired (the "Pledged Subsidiaries")
therein set forth;
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(ii) all other shares of common stock or other
equity securities now or hereafter acquired by the Company in
any manner issued by the Pledged Subsidiaries, and the
certificates representing such securities, and any present or
future options, warrants or other rights to subscribe for or
purchase any property described in Schedule 2(b)(i) or any
notes, bonds, debentures or other evidences of indebtedness
now or hereafter owned or acquired by the Company in any
manner that (A) are at any time convertible, exchangeable or
exercisable into capital stock or other equity securities of
the Pledged Subsidiaries or (B) have or at any time could by
their terms have voting rights with respect to any matter
affecting the Pledged Subsidiaries and all securities,
certificates and instruments representing or evidencing
ownership of any of the property described in Schedule 2(b)
hereof; and
(iii) all proceeds and products of the foregoing
and distributions thereof or with respect thereto, including
without limitation dividends, distributions, cash, instruments
and other property or securities, now or hereafter at any time
or from time to time received or receivable or otherwise
distributed or distributable in respect of or in exchange for
any or all of the foregoing.
(c) The Company hereby also assigns to the Lender and
grants to the Lender a security interest in, pledge of and lien on,
the Disbursement Account and all investments, securities, financial
assets credited thereto and security entitlements with respect thereto
and all certificates and instruments, if any, from time to time
representing or evidencing the Disbursement Account or any property
credited thereto, whether now owned by the Company or existing or
hereafter acquired, created or arising including the proceeds thereof
(the "Assigned Collateral" and, together with the Company UCC
Collateral and the Pledged Collateral, the "Collateral").
Subject to any Permitted Liens, pursuant to the terms
hereof, the Company has endorsed, assigned and delivered to the Lender
or such other Person that the Lender has designated as its agent to
hold for perfection purposes all negotiable or non-negotiable
instruments (including certificated securities) and chattel paper
pledged by it hereunder, together with instruments of transfer or
assignment duly executed in blank as the Lender may have specified.
In the event that the Company shall, after the date of this Agreement,
acquire any other negotiable or non-negotiable instruments (including
certificated securities) or chattel paper to be pledged by it
hereunder, the Company shall, subject to Permitted Liens, forthwith
endorse, assign and deliver the same to the Lender, accompanied by
such instruments of transfer or assignment duly executed in blank as
the Lender may from time to time specify. To the extent that any
securities are uncertificated, appropriate book-entry transfers
reflecting the pledge of such securities created hereby have been or,
in the case of uncertificated securities hereafter acquired by the
Company, will at the time of such acquisition be, duly made for the
account of the Lender or one or more nominees of the Lender with the
issuer of such securities or other appropriate book-entry facility or
financial intermediary, with the Lender having at all times the right
to obtain definitive certificates (in the Lender's name or in the name
of one or more nominees of the Lender) where the issuer customarily or
otherwise issues certificates, all to be held as Collateral hereunder.
The Company hereby acknowledges that the Lender may, in its
discretion, appoint one or more financial institutions to act as the
Lender's agent in holding in custodial accounts instruments or other
financial assets, including securities, in which the Lender is granted
a security interest hereunder, including, without limitation,
certificates of deposit and other instruments evidencing short term
obligations.
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(d) The inclusion of proceeds in this Agreement does not
authorize the Company to sell, dispose of or otherwise use the
Collateral in any manner not specifically authorized hereby or under
the Indenture.
(e) This Agreement secures the prompt and complete (i)
payment of all obligations of the Company to the Lender under the TARC
Intercompany Note, whether such obligations are now existing or
hereafter arising, and all renewals, extensions, amendments,
supplements and rearrangements thereof and (ii) payment and
performance of all covenants and conditions by the Company contained
herein and in the TARC Intercompany Loan Agreement in each case
whether for principal, interest, prepayment premium, taxes, costs,
losses, compensation, reimbursements, fees, expenses or any other
amount payable to the Lender under the terms of this Agreement (all
such obligations, covenants and conditions described in the foregoing
clauses (i) and (ii) being hereinafter collectively referred to as the
"Obligations").
(f) Notwithstanding anything herein to the contrary, the
stock of any Unrestricted Subsidiary shall not constitute Collateral
hereunder.
Section 3. Representations and Warranties. The Company represents and
warrants, as of the date hereof, to the Lender as follows:
(a) The chief executive office and principal place of
business of the Company is located at 0000 X. Xxx Xxxxxxx Xxxxxxx
Xxxx, Xxxxx 000, Xxxxxxx, Xxxxxx Xxxxxx, Xxxxx 00000. Any and all
Collateral not delivered to the Lender or its designated agent is and
will continue to be located only in the States of Texas and Louisiana.
(b) The Company is the legal and beneficial owner of all
of the Collateral free and clear of any lien, security interest,
charge or encumbrance of any kind or nature, except for the lien and
security interest created hereby and for Permitted Liens, and has not
made any other pledge, assignment, mortgage, hypothecation or transfer
of the Collateral except as permitted hereunder or under the TARC
Intercompany Loan Agreement. Except for the lien and security
interest created hereby, all of the Collateral is free from any
material credit, deduction, allowance, defense, dispute, setoff or
counterclaim and there is no material extension or indulgence with
respect thereto. The Pledged Collateral is not subject to any put,
call, option or other right in favor of any other person whatsoever.
(c) The Pledged Collateral is accurately described in
Schedule 2(b) hereto and has been duly authorized and validly issued
and non-assessable.
(d) This Agreement has been duly executed and delivered
by the Company and creates a valid security interest in, and lien on,
the Collateral securing the payment of the Indebtedness. Upon the
delivery of physical certificates evidencing the Pledged Collateral to
the Lender or its designated agent and the making of the filings and
the taking of all other actions necessary to perfect the security
interests created hereby, including, without limitation, those actions
specified in Section 2(b) and Section 4, the security interests
created by this Agreement will be duly perfected security interests
subject to no equal or prior lien, security interest or encumbrance of
any kind or nature other than Permitted Liens.
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(e) The Company has the requisite corporate power and
authority to pledge the Collateral in the manner hereby done or
contemplated and to defend its title thereto against the lawful claims
of all persons whomsoever.
(f) Neither the execution and delivery of this Agreement
by the Company, the performance by the Company of its obligations
hereunder, nor the transactions herein contemplated will (i) violate
the Company's charter or bylaws, (ii) violate the terms of any
agreement, indenture, mortgage, deed of trust, equipment lease,
instrument or other document to which the Company is a party, (iii)
violate any law, order, rule or regulation applicable to the Company
of any court or any government, regulatory body or administrative
agency or other governmental body having jurisdiction over the Company
or its properties, or (iv) result in or require the creation or
imposition of any lien (other than the lien contemplated hereby), upon
or with respect to any of the property now owned or hereafter acquired
by the Company, which violation or conflict would have a material
adverse effect on the financial condition, business, assets or
liabilities of the Company or on the value of the Collateral or a
material adverse effect on the security interests hereunder.
(g) The Pledged Collateral includes the issued and
outstanding shares of Common Stock of the Pledged Subsidiaries as
described in Schedule 2(b) attached hereto, and as of the date of
execution hereof, there are no outstanding options, warrants or other
rights to subscribe for or purchase any property described in Schedule
2(b) or any notes, bonds, debentures or other evidences of
indebtedness that (i) are at any time convertible into capital stock
of the Pledged Subsidiaries or (ii) have or at any time could by their
terms have voting rights with respect to any matters affecting the
Pledged Subsidiaries.
(h) No consent or approval which has not been obtained
prior to the date hereof of any other person or entity and no
authorization, approval or other action (other than delivery of
physical certificates evidencing the Pledged Collateral) by, and no
notice to or filing with any governmental body (other than UCC
filings), regulatory authority or securities exchange, was or is
necessary as a condition to the validity of the pledge hereunder of
the Collateral, and such pledge is effective to vest in the Lender
the rights of the Lender in the Collateral as set forth herein. There
are no restrictions on the transferability of any of the Collateral
transferred or delivered by the Company hereunder or, except for
restrictions related to federal and state securities laws governing
the sale of "restricted stock" or "control stock," with respect to the
foreclosure, transfer or disposition thereof by the Lender.
Section 4. Covenants. During the term of this Agreement and until all
the Obligations with respect to the Indebtedness have been fully and finally
paid and discharged in full, the Company covenants and agrees with the Lender
that:
(a) Except as permitted by the TARC Intercompany Loan
Agreement or in the ordinary course of business, the Company will not
make any compromise or settlement with respect to the Collateral
without notice to or consent of the Lender.
(b) The Company shall deliver to the Lender or its
designated agent concurrently with the execution of this Agreement or,
to the extent acquired subsequent to the date of execution hereof,
including without limitation Pledged Collateral issued by a newly
created or acquired Subsidiary, immediately upon the Company's
acquisition thereof: (i) all certificates and instruments
representing the Pledged Collateral and a revised Schedule 2(b), and
(ii) all
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certificates and instruments representing each other item of
Collateral (including all certificates, instruments and notes
representing any such Company UCC Collateral). Any and all Pledged
Collateral delivered to the Lender or its designated agent shall be
accompanied by undated duly executed powers in blank and by such other
instruments of transfer or documents as the Lender may reasonably
request. The Lender may hold the certificates representing the
Pledged Collateral delivered to it in its own name or in the name of
its nominee, all in form and substance satisfactory to the Lender.
(c) From time to time, the Company shall, at its own
expense, promptly give, execute, deliver, file and/or otherwise
formalize any such notice, statement, instrument, document, agreement
or other papers, and do all such other acts and things, as may be
necessary or desirable, or as the Lender may reasonably request, in
order to create, evidence, preserve, perfect, validate or continue any
lien or security interest created pursuant to this Agreement or to
enable the Lender to exercise or enforce its rights hereunder with
respect to such lien or security interest, or otherwise further to
effect the purposes of this Agreement. Without limiting the
generality of the foregoing, the Company shall, at any time or from
time to time upon the request of the Lender and at the Company's own
expense, execute, acknowledge, witness, deliver, file and/or record
such financing and continuation statements, notices, additional
assignments and other documents or instruments (all of which shall be
in form and substance satisfactory to the Lender and its counsel) as
the Lender may from time to time reasonably request for the perfection
of the liens and security interests created hereby.
(d) The Company shall promptly notify the Lender (i) of
any material changes in any fact or circumstance represented or
warranted by the Company with respect to any material portion of the
Collateral, (ii) of any material impairment of the Collateral and
(iii) of any claim, action or proceeding affecting title to all or any
of the Collateral.
(e) Except for the liens and security interests created
by this Agreement and the Permitted Liens in the Collateral, the
Company shall at its own expense defend the Collateral against any and
all liens, claims, security interests and other encumbrances or
interests, howsoever arising and shall maintain and preserve the
security interest granted hereunder with respect to the Collateral as
long as this Agreement shall remain in full force and effect. The
Company shall not make any other pledge, assignment, mortgage,
hypothecation or transfer of the Collateral except as permitted
hereunder or under the TARC Intercompany Loan Agreement.
(f) The Company shall at all times keep accurate and
complete records with respect to the Collateral, including, without
limitation, records of all payments made, credit granted and proceeds
received in connection therewith.
(g) The Company shall not relocate its principal place of
business or chief executive office to a county or state other than
that specified in Section 3(a) of this Agreement unless the Company
gives 30 days' prior written notice to the Lender, which notice shall
specify the county and state into which such relocation is to be made.
The Collateral, to the extent not delivered to the Lender pursuant to
Section 2, will be kept at those locations listed on the Perfection
Certificate delivered to the Lender herewith in the form attached as
Exhibit A hereto and the Company will not remove the Collateral from
such locations, without providing at least 30 days' prior written
notice to the Lender.
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(h) The Company will keep the Collateral in good order
and repair, except in situations where not to do so would not be
material, and will not use the same in violation of law or any policy
of insurance thereon. The Lender, or its designee, may inspect the
Collateral at any reasonable time, wherever located.
(i) The Lender, or its representative, shall at all times
have full and free access during normal business hours to all of the
books, correspondence and records of the Company relating to the
Collateral (other than information that is privileged and
confidential) and the Lender and its representatives may examine the
same, make abstracts therefrom and make photocopies thereof, and the
Company agrees to render to the Lender, at the Company's cost and
expense, such clerical and other assistance as may be reasonably
requested by the Lender with regard thereto.
(j) The Company shall not permit any of the Pledged
Subsidiaries to issue to the Company any securities of the type
required to be pledged hereunder unless such securities are promptly
pledged and delivered hereunder to the Lender or its designated agent
in accordance with Section 2(b).
(k) If, while this Agreement is in effect, any stock
dividend, stock split, reclassification, readjustment, reorganization,
merger, consolidation, exchange offer, tender offer or other change in
the capital structure, including the creation of any subscription or
other rights relating to the Pledged Collateral, is declared or made,
or proposed to be declared or made, by any of the Pledged Subsidiaries
or any other issuer of the Collateral, all substituted and additional
securities or interest issued with respect to the Collateral and
evidenced by certificates shall be endorsed in blank by the Company
promptly upon receipt thereof or otherwise appropriately transferred
to the Lender in negotiable form, and all certificates or instruments
evidencing such securities shall be delivered to the Lender to be held
under the terms of this Agreement in the same manner as, and as a part
of, the Collateral. All Pledged Collateral shall be evidenced by one
or more certificates. Any securities that may be issued upon exercise
of any subscription or other rights relating to the Pledged Collateral
shall be endorsed in blank and delivered to the Lender with any
necessary powers.
Section 5. Powers of the Secured Party.
(a) The Company hereby irrevocably designates and
appoints the Lender as its attorney-in-fact, with full power of
substitution, for the purposes of carrying out the provisions of this
Agreement and taking any action and executing any instrument,
including,without limitation, any financing statement or continuation
statement, and taking any other action to maintain the validity,
perfection, priority and enforcement of the security interest intended
to be created hereunder, that the Lender may reasonably deem necessary
or advisable to accomplish the purposes hereof, which appointment as
attorney-in-fact is irrevocable and coupled with an interest.
(b) Without limiting the generality of Section 5(a)
hereof, the Company hereby irrevocably authorizes and empowers the
Lender, upon the occurrence and during the continuation of any Event
of Default, at the expense of the Company, either in the Lender's own
name or in the name of the Company, at any time and from time to time:
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(i) to ask, demand, receive, issue a receipt for,
give acquittance for, settle and compromise any and all monies
which may be or become due or payable or remain unpaid at any
time or times to the Company, and any and all other property
which may be or become deliverable at any time or times to the
Company, under or with respect to the Collateral;
(ii) to endorse any drafts, checks, orders or
other instruments for the payment of money payable to the
Company on account of the Collateral (including any such
draft, check, order or instrument issued by any insurance
company payable jointly to the Company and the Lender); and
(iii) to settle, compromise, prosecute or defend
any action, claim or proceeding, or take any other action, all
either in its own name or in the name of the Company or
otherwise, which the Lender may deem to be necessary or
advisable for the purpose of exercising and enforcing its
powers and rights under this Agreement or in furtherance of
the purposes hereof, including any action which by the terms
of this Agreement is to be taken by the Company.
(c) Nothing in this Agreement shall be construed as
requiring or obligating the Lender to make any commitment or to make
any inquiry as to the nature or sufficiency of any payment received by
it, or to present or file any claim or notice, or to take any other
action with respect to any of the Collateral or any part thereof or
the amounts due or to become due in respect thereof or any property
covered thereby, or to collect or enforce the payment of any amounts
assigned to it or to which it may otherwise be entitled hereunder at
any time or times other than to account for amounts or Collateral
received.
(d) The Lender shall be entitled at any time to file this
Agreement, or a carbon, photographic or any other reproduction of this
Agreement, as a financing statement, but the failure of the Lender to
do so shall not impair the validity or enforceability of this
Agreement. The Lender shall have no duty to comply with any
recording, filing or other legal requirements necessary to establish
or maintain the validity, priority or enforceability of, or the
Lender's rights in or to, any of the Collateral.
(e) In its discretion, the Lender may discharge taxes and
other encumbrances at any time levied or placed on any of the
Collateral, make repairs thereto and pay any necessary filing fees.
The Company agrees to reimburse the Lender on demand for any and all
reasonable expenditures so made with interest on unpaid amounts at the
maximum rate permitted by law. The Lender shall have no obligation to
the Company to make any such expenditures, nor shall the making
thereof relieve the Company of any default.
(f) Anything herein to the contrary notwithstanding, the
Company shall remain liable under each contract or agreement comprised
in the Collateral to be observed or performed by the Company
thereunder. The Lender shall not have any obligation or liability
under any such contract or agreement by reason of or arising out of
this Agreement or the receipt by the Lender of any payment relating to
any of the Collateral, nor shall the Lender be obligated in any manner
to perform any of the obligations of the Company under or pursuant to
any such contract or agreement, to make inquiry as to the nature or
sufficiency of any payment received by the Lender in respect of the
Collateral or as to the sufficiency of any performance by any party
under any such contract or agreement, to present or file any claim, to
take any action to enforce any
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performance or to collect the payment of any amounts which may have
been assigned to the Lender or to which the Lender may be entitled at
any time or times other than to account for amounts or Collateral
received, and no action taken or omitted shall give rise to any
defense, counterclaim or right of action against the Lender, unless
the Lender's actions are taken or omitted to be taken with gross
negligence or bad faith or constitute willful misconduct. The
Lender's sole duty with respect to the custody, safe keeping and
physical preservation of the Collateral in its possession, under
Section 9-207 of the UCC or otherwise, shall be to deal with such
Collateral in the same manner as the Lender deals with similar
property for its own account.
(g) If an Event of Default has occurred and is
continuing, the Lender may at any time, at its option, transfer to
itself or any nominee any securities constituting the Pledged
Collateral, receive any income thereon and hold such income as
additional Collateral or apply it to the Indebtedness. Regardless of
whether any Indebtedness is due, the Lender may demand, xxx for,
collect, or make any settlement or compromise which it deems desirable
with respect to the Collateral. Regardless of the adequacy of
Collateral or any other security for the Indebtedness, any deposits or
other sums at any time credited by or due from the Lender to the
Company may at any time be applied to or set off against any of the
Indebtedness.
(h) If an Event of Default shall have occurred and be
continuing, the Company shall, at the request of the Lender, notify
obligors on chattel paper and general intangibles of the Company and
obligors on instruments for which the Company is an obligee of the
security interest of the Lender in any chattel paper, general
intangible or instrument and that payment thereof is to be made
directly to the Lender or to any financial institution designated by
the Lender as the Lender's agent therefor, and the Lender may itself,
if an Event of Default shall have occurred and be continuing, without
notice to or demand upon the Company, so notify said obligors. After
the making of such a request or the giving of any such notification,
the Company shall hold any proceeds of collection of chattel paper,
general intangibles and instruments received by the Company as trustee
for the Lender without commingling the same with other funds of the
Company and shall turn the same over to the Lender in the identical
form received, together with any necessary endorsements or
assignments. The Lender shall apply the proceeds of collection of
chattel paper, general intangibles and instruments received by the
Lender to the Indebtedness, such proceeds to be immediately entered
after final payment in cash of the items giving rise to them.
Section 0.Xxxxxx Rights, Dividends, Etc.
(a) Until an Event of Default shall have occurred and be
continuing:
(i) except as otherwise provided in this
Agreement, the Company shall be entitled to exercise any and
all voting or consensual rights and powers, including
subscription rights, in relation to the Pledged Collateral;
provided, however, that no vote shall be cast or consent,
waiver or ratification given or action taken which would
materially impair the securities or the value thereof or
violate any provision of this Agreement, the Indenture or any
other ancillary document;
(ii) except as otherwise provided in this
Agreement, the Company shall be entitled to receive and retain
any and all dividends, distributions or other payments in
respect of the Pledged Collateral and the Lender, upon receipt
of any of the foregoing, shall promptly pay or distribute the
same to the Company, and, to the extent so
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permitted, any distributions received by the Company and
transferred to other persons shall pass free and clear of the
lien and security interest hereof; and
(iii) the Lender shall execute and deliver to the
Company or cause to be executed and delivered to the Company,
all such proxies, powers of attorney, dividend orders and
other instruments as the Company may reasonably request for
the purpose of enabling it to exercise the voting or
consensual rights and powers which the Company is entitled to
exercise pursuant to the foregoing Section 6(a)(i) or to
receive the dividends, distributions or other payments which
the Company is authorized to retain pursuant to the foregoing
Section 6(a)(ii).
(b) Upon the occurrence and during the continuance of an
Event of Default, all rights of the Company to exercise the voting or
consensual rights and powers which the Company would otherwise be
entitled to exercise pursuant to Section 6(a)(i) and to receive the
dividends, distributions and other payments which the Pledgor would
otherwise be authorized to receive and retain pursuant to Section
6(a)(ii) shall automatically cease, and all such rights shall
thereupon become vested in the Lender, which shall then have the sole
and exclusive right and authority to exercise, in its sole discretion,
all such voting and consensual rights and powers and to receive and
retain as Collateral all such dividends, distributions and other
payments. Without limiting the foregoing, in such event the Lender
may exercise all voting and corporate rights at any meeting of any
corporation issuing any such securities and any and all rights of
conversion, exchange, subscription or any other rights, privileges or
options pertaining to any such securities as if it were the absolute
owner thereof, including, without limitation, the rights to exchange
at its discretion, any and all such securities upon the merger,
consolidation, reorganization, recapitalization or other readjustment
of any corporation issuing any such securities or upon the exercise by
any such issuer or the Lender of any right, privilege or option
pertaining to any such securities, and, in connection therewith, to
deposit and deliver any and all securities with any committee,
depository, transfer agent, registrar or other designated agency upon
such terms and conditions as it may determine, all without liability
except to account for the property actually received by it, but the
Lender shall have no duty to exercise any of the aforesaid rights,
privileges or options and the Lender shall not be responsible for any
failure to do so or delay in so doing.
Section 7. Default.
(a) It shall constitute a Default or an Event of Default
under this Agreement if a "Default" or an "Event of Default" shall
occur under the Indenture.
(b) If an Event of Default shall have occurred and is
continuing and if the maturity of the Note is accelerated under the
provisions of the TARC Intercompany Loan Agreement, in addition to any
other rights and remedies that may be available to the Lender under
the UCC or the TARC Intercompany Loan Agreement or under Section 5(a)
or 5(b) of this Agreement or otherwise under this Agreement or at law,
the Lender shall also have the following rights and powers:
(i) The Lender may, without being required to
give any notice except as hereinafter provided, sell the
Collateral, or any part thereof, at public or private sale,
for cash, upon credit or for future delivery and at such price
or prices as the Lender deems satisfactory, and the Lender
and/or its collateral agent may be the purchaser of any or
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all of the Collateral so sold and thereafter hold the same
absolutely free from any right or claim of whatsoever kind,
and the Indebtedness or any portion of the Indebtedness may be
applied as a credit against the purchase price.
(ii) Upon any such sale, the Lender shall have the
right to deliver, assign and transfer to the purchaser thereof
the Collateral so sold. Each purchaser at any such sale shall
hold the property sold absolutely free from any claim or right
of whatsoever kind by or on behalf of the Company, including
any equity or rights of redemption of the Company, and the
Company hereby specifically waives, to the full extent
permitted by applicable law, all rights of redemption, stay or
appraisal which it has or may have under any rule or law or
statute now existing or hereafter adopted.
(iii) The Lender shall give the Company ten (10)
business days' written notice (which the Company agrees is
reasonable notification within the meaning of Section 9.504 of
the UCC) of its intention to make any such public or private
sale. Such notice, in case of public sale, shall state the
time and place fixed for such sale and, in case of a private
sale, shall state the date after which such sale is to be
made.
(iv) Any such public sale shall be held at such
time or times within ordinary business hours and at such
places as the Lender may fix in the notices of such sale. At
any such sale the Collateral may be sold in one lot as an
entirety or in separate parcels, as the Lender may, in its
sole discretion, determine.
(v) The Lender shall not be obligated to make any
sale of the Collateral if it shall determine not to do so,
regardless of the fact that notice of sale of the Collateral
may have been given. The Lender may, without notice or
publication, adjourn any public or private sale or cause the
same to be adjourned from time to time by announcement at the
time and place fixed for the sale, and such sale may, without
further notice, be made at any time or place to which the same
shall be so adjourned.
(vi) In case of any sale of all or any part of the
Collateral on credit or for future delivery, the Collateral so
sold may be retained by the Lender until the selling price is
paid by the purchaser thereof, but the Lender shall not incur
any liability in case of the failure of such purchaser to take
up and pay for the Collateral so sold and, in case of any such
failure, such Collateral may again be sold upon like notice.
(vii) The Lender, instead of exercising the power
of sale herein conferred upon it, may proceed by a suit or
suits at law or in equity to exercise its remedies regarding
the Collateral and sell the Collateral, or any portion
thereof, under a judgment or decree of a court or courts of
competent jurisdiction.
(viii) The Company agrees that if any Event of
Default shall have occurred and be continuing, then the Lender
shall have the right to take possession of the Collateral, and
for that purpose the Lender may, so far as the Company can
give authority therefor, enter upon any premises on which the
Collateral may be situated and remove the same therefrom with
or without notice or process of law. The Company waives any
and all rights that it may have to a judicial hearing in
advance of the enforcement of any of the Lender's rights
hereunder, including, without limitation, its right following
an Event of Default to take immediate possession of the
Collateral and to exercise its rights with
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respect thereto. To the extent that any of the Obligations are
to be paid or performed by a person other than the Company,
the Company waives and agrees not to assert any rights or
privileges which it may have under Section 9-112 of the UCC.
(ix) If under mandatory requirements of applicable
law, the Lender shall be required to make disposition of the
Collateral within a period of time that does not permit the
giving of notice to the Company as hereinbefore provided, the
Lender need give the Company only such notice of disposition
as shall be reasonably practicable in view of such mandatory
requirements of law.
(x) The Lender may instruct the obligor or
obligors on any agreement, instrument or other obligation
constituting the Collateral to make any payment or render any
performance required by the terms of such agreement,
instrument or obligation directly to the Lender or its
designee.
(c) The Lender shall incur no liability as a result of
the sale of the Collateral, or any part thereof, at any private sale
other than for its own gross negligence, willful misconduct or bad
faith. The Company hereby waives, to the maximum extent permitted by
applicable law, any claims against the Lender arising by reason of the
fact that the price at which the Collateral may have been sold at such
private sale was less than the price which might have been obtained at
a public sale or was less than the aggregate amount of the
Indebtedness, even if the Lender accepts the first offer received and
does not offer such Collateral to more than one offeree.
(d) The Lender shall not be obligated to pursue or
exhaust its rights and remedies against any particular Collateral or
other security for the Indebtedness before pursuing or enforcing its
rights and remedies against any other Collateral or other security for
the Indebtedness.
(e) To the extent permitted by law, the Company hereby
waives (i) any rights to require the Lender to proceed first against
any other Person, to exhaust its rights in the Collateral or other
security for the Indebtedness or to pursue any other right that the
Lender might have, (ii) with respect to the Note, presentment and
demand for payment, protest, notice of protest and nonpayment, notice
of dishonor, notice of the intention to accelerate and notice of
acceleration (except as otherwise set forth in the TARC Intercompany
Loan Agreement), and (iii) all rights of marshalling in respect of any
and all of the Collateral.
(f) Without precluding any other methods of sale, the
Company acknowledges that the sale of the Collateral shall have been
made in a commercially reasonable manner if conducted in conformity
with reasonable commercial practices of banks disposing of similar
property. The Lender shall not be liable for any depreciation in the
value of the Collateral.
(g) The Company agrees that its obligation to deliver the
Collateral is of the essence of this Agreement and that accordingly,
upon application to a court of equity having jurisdiction, the Lender
shall be entitled to a decree requiring specific performance by the
Company of such obligation.
(h) Remedies of the Lender are cumulative and the
exercise of any one or more of the remedies provided herein shall not
be construed as a waiver of any of the other remedies of the Lender.
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(i) If an Event of Default shall have occurred and be
continuing, the proceeds of any sale of or other realization upon all
or any part of the Collateral and any other amounts held by the Lender
under this Agreement shall be applied by the Lender as provided in the
Indenture.
Any amounts remaining after such applications and the payment
in full of the Note with respect to the Indebtedness shall be remitted to the
Company, its successors or assigns, or as a court of competent jurisdiction may
otherwise direct.
Section 8. Registration Rights.
(a) If the Lender shall determine to exercise the right
to sell any or all of the Pledged Collateral pursuant to Section 7
hereof, and if in the opinion of counsel for the Lender it is
necessary (or if in the opinion of the Lender it is advisable) to have
the Pledged Collateral, or that portion thereof to be sold, registered
under the provisions of the Securities Act of 1933, as amended (the
"Securities Act"), the Company will cause each issuing corporation to
execute and deliver, and cause the directors and officers of each
thereof to execute and deliver, all at the Company's expense, all such
instruments and documents, and to do or cause to be done all such
other acts and things as may be necessary or, in the opinion of the
Lender, advisable to register the Pledged Collateral, or that portion
thereof to be sold, under the provisions of the Securities Act and to
use its best efforts to cause the registration statement relating
thereto to become effective and to remain effective for a period of
one year from the date of the first public offering of the Pledged
Collateral, or that portion thereof to be sold, and to make all
amendments or supplements thereto and/or to the related prospectus
which, in the opinion of the Lender, are necessary or advisable, all
in conformity with the requirements of the Securities Act and the
rules and regulations of the Securities and Exchange Commission
applicable thereto. The Company agrees to use its best efforts to
cause each such issuing corporation to comply with the provisions of
the securities or "Blue Sky" laws of any jurisdiction which the Lender
shall designate and to cause each such issuing corporation to make
available to its security holders, as soon as practicable, an earnings
statement (which need not be audited) which will satisfy the
provisions of Section 11(a) of the Securities Act.
(b) The Company recognizes that the Lender may be unable,
or find it undesirable, to effect a public sale of any or all the
Pledged Collateral by reason of certain prohibitions contained in the
Securities Act and applicable state securities laws or otherwise, but
may be compelled or desire to resort to one or more private sales
thereof to a restricted group of purchasers who will be obliged to
agree, among other things, to acquire such securities for their own
account for investment and not with a view to the distribution or
resale thereof in violation of the Securities Act. The Company
acknowledges and agrees that any such private sale may result in
prices and other terms less favorable to the seller than if such sale
were a public sale, but, notwithstanding such circumstances, such
private sale shall be deemed to have been made in a commercially
reasonable manner. The Lender shall be under no obligation to delay a
sale of any of the Pledged Collateral for the period of time necessary
to permit the issuing corporation of such securities to register such
securities for public sale under the Securities Act, or under
applicable state securities laws, even if the issuing corporation
would agree to do so.
(c) The Company further agrees to use commercially
reasonable efforts to do or cause to be done all such other acts and
things as may be necessary to make such sale or sales of any portion
or all of the Pledged Collateral valid and binding and in compliance
with any and all applicable laws, regulations, orders, writs,
injunctions, decrees or awards of any and all
14
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courts, arbitrators or governmental instrumentalities, domestic or
foreign, having jurisdiction over any such sale or sales, all at the
Company's expense. The Company further agrees that a breach of any of
the covenants contained in this Section 8 will cause irreparable
injury to the Lender, that the Lender has no adequate remedy at law in
respect of such breach and, as a consequence, agrees that each and
every covenant contained in this Section 8 shall be specifically
enforceable against the Company, and the Company hereby waives and
agrees not to assert any defenses against an action for specific
performance of such covenants except for a defense that no Event of
Default has occurred under the Indenture.
Section 9. General Provisions.
(a) Continuing Security Interest; Binding Effect. This
Agreement shall create a continuing security interest in the
Collateral and shall (a) remain in full force and effect until
termination of the obligations of the Company under the TARC
Intercompany Loan Agreement and the indefeasible payment in full
thereafter of the Obligations; (b) be binding upon the Company and its
successors and assigns; and (c) inure to the benefit of the Lender and
its successors, transferees and assigns. Without limiting the
generality of the foregoing clause (c), the Lender may assign or
otherwise transfer any of its rights under this Agreement to any other
Person, and such Person shall thereupon become vested with all the
benefits in respect thereof granted herein or otherwise to the Lender.
Upon the termination of the obligations of the Lender under the
Indenture and the indefeasible payment in full thereafter of the
Obligations, the Company shall be entitled to the return, upon its
request and at its expense, of such of the Collateral as is in the
Lender's possession and as shall not have been sold or otherwise
disposed of pursuant to the terms hereof.
(b) Security Interest Absolute. The lien and security
interest created hereunder and the Company's obligations hereunder and
the Lender's rights hereunder shall not be released, diminished,
impaired or adversely affected by the occurrence of any one or more of
the following events:
(i) The taking or accepting of any other security
or assurance for any or all of the Indebtedness;
(ii) Any release, surrender, exchange,
subordination or loss of any security or assurance at any time
existing in connection with any or all of the Indebtedness;
(iii) The modification of, amendment to, or waiver
of compliance with any terms of the TARC Intercompany Loan
Agreement or the Note;
(iv) Any renewal, extension and/or rearrangement
of the payment of any or all of the Indebtedness or any
statement, indulgence, forbearance or compromise that may be
granted or given by the Lender to the Company or any other
Person;
(v) any neglect, delay, omission, failure or
refusal of the Lender to take or prosecute any action in
connection with any agreement, document or other instrument
evidencing, securing or assuring the payment of any or all of
the Indebtedness;
(vi) the illegality, invalidity or
unenforceability of all or any part of the TARC Intercompany
Loan Agreement or the Note; or
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(vii) any other circumstance (other than payment in
full of the Obligations) that might otherwise constitute a
defense available to, or a discharge of, the Company or any
party to any document in respect of the Obligations.
(c) Amendments. This Agreement or any term hereof may be
amended or changed only by an instrument in writing executed jointly
by the Company and the Lender and in accordance with Article IX of the
Indenture.
(d) Remedies Cumulative. Each right, power and remedy
herein specifically granted to the Lender or otherwise available to it
or now or hereafter existing in law or in equity shall be cumulative
and concurrent, and shall be in addition to every other right, power
and remedy herein specifically given or now or hereafter existing at
law, in equity, or otherwise (including, without limitation, all
rights, powers and remedies granted to a secured party under the UCC),
and each such right, power and remedy, whether specifically granted
herein or otherwise existing, may be exercised at any time and from
time to time as often and in such order as may be deemed expedient by
the Lender in its sole and complete discretion. The provisions of
this Agreement may only be waived by an instrument in writing signed
by the Lender, and no failure on the part of the Lender to exercise,
and no delay in exercising, and no course of dealing with respect to,
any such right, power or remedy, shall operate as a waiver thereof,
nor shall any single or partial exercise of any such right, power or
remedy preclude any other or further exercise thereof or the exercise
of any other right. No notice to or demand on the Company hereunder
shall, of itself, entitle the Company to any other or further notice
or demand in the same or similar circumstances.
(e) Assignment. Neither this Agreement nor any interest
herein or in the Collateral, or any part thereof, may be assigned by
the Company without the prior written consent of the Lender, except as
expressly permitted herein or in the Indenture or in the Disbursement
Agreement. The Company hereby acknowledges and consents to the
collateral assignment by the Lender of this Agreement and the Lender's
interest in the Collateral to the Indenture Trustee, as defined in the
TARC Intercompany Loan Agreement. The Company also agrees that, in
the case of an Event of Default, the Indenture Trustee may exercise
any rights and remedies of the Lender under this Agreement, and any
reference to the "Lender" hereunder shall also include the Indenture
Trustee.
(f) Headings. The descriptive headings of the several
sections of this Agreement are inserted for convenience only and shall
not control or affect the meaning or construction of any of the
provisions hereof.
(g) Severability. Any provision of this Agreement that
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof
or affecting the validity of enforceability or such provision in any
other jurisdiction.
(h) Survival. All representations and warranties
contained herein, in the Indenture or made in writing by the Company
in connection herewith or therewith, shall survive the execution and
delivery of this Agreement, the Indenture and any documents executed
in connection herewith or therewith.
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(i) Counterparts. This Agreement may be executed in any
number of counterparts and by different parties in separate
counterparts, each of which when so executed and delivered shall be
deemed to be an original, but all of which when taken together shall
constitute one and the same instrument. A complete set of
counterparts shall be lodged with the Lender.
(j) Waiver. To the extent permitted by applicable law
the Company hereby waives promptness, diligence, notice of acceptance
and any other notice with respect to any of the Indenture obligations
and this Agreement and any requirement that the Lender protect,
secure, perfect or insure any security interest or any property
subject thereto or exhaust any right or take any action against the
Company or any other person or entity; provided however, that the
Lender shall in any event take such care in the handling of any
Collateral in its possession as it takes with respect to its own
property of a similar nature in its possession.
(k) Notices. Any notices or other communications
required or permitted hereunder shall be in writing, and shall be
sufficiently given if made by hand delivery, by telex, by facsimile or
registered or certified mail, postage prepaid, return receipt
requested, addressed as provided in Section 9.3 of the TARC
Intercompany Loan Agreement. Any party hereto may by notice to the
other party designate such additional or different addresses as shall
be furnished in writing by such party. Any notice or communication to
any party shall be deemed to have been given or made as of the date so
delivered, if personally delivered; when answered back, if telexed;
when receipt is acknowledged, if faxed; and five (5) calendar days
after mailing, if sent by registered or certified mail (except that a
notice of change of address shall not be deemed to have been given
until actually received by the addressee).
(l) Conflicting Terms. In the event of any conflict or
inconsistency between the terms, covenants, conditions and provisions
set forth in this Agreement and the terms, covenants, conditions and
provisions set forth in the Indenture, the terms, covenants,
conditions and provisions of the Indenture shall prevail.
(m) Release. The Collateral, in whole or in part, may be
released in accordance with the TARC Intercompany Loan Agreement and
the Indenture.
(n) Conflicts. If any provision of the TARC Intercompany
Loan Agreement limits, qualifies, or conflicts with any similar
provision of this Agreement, such provision of the TARC Intercompany
Loan Agreement shall control.
(o) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW EXCEPT SECTION 5-1401
OF THE NEW YORK GENERAL OBLIGATIONS LAW. THE COMPANY HEREBY
IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE COURT
SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK OR ANY
FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW
YORK IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT, AND IRREVOCABLY ACCEPTS FOR ITSELF AND IN
RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, JURISDICTION
OF THE AFORESAID COURTS. THE COMPANY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, TRIAL BY
JURY AND ANY OBJECTION THAT IT MAY NOW OR
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HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT,
ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM. THE COMPANY IRREVOCABLY CONSENTS, TO THE FULLEST
EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, TO THE SERVICE
OF PROCESS OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR
PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED
MAIL, POSTAGE PREPAID, TO THE COMPANY AT ITS SAID ADDRESS, SUCH
SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER SUCH MAILING. NOTHING
HEREIN SHALL AFFECT THE RIGHT OF THE LENDER TO SERVE PROCESS IN ANY
OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR
OTHERWISE PROCEED AGAINST THE COMPANY IN ANY OTHER JURISDICTION.
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IN WITNESS WHEREOF, the Company and the Lender have executed
this Agreement as of the date first above written.
TRANSAMERICAN REFINING CORPORATION
By:
-----------------------------------
Name:
--------------------------------
Title:
--------------------------------
TRANSAMERICAN ENERGY CORPORATION,
as Lender
By:
-----------------------------------
Name:
--------------------------------
Title:
--------------------------------
By:
-----------------------------------
Name:
--------------------------------
Title:
--------------------------------
21
EXHIBIT A
PERFECTION CERTIFICATE
The undersigned, Vice President of TransAmerican Refining
Corporation, a Texas corporation (the "Company"), hereby certify with reference
to the Security and Pledge Agreement dated as of June 13, 1997 between the
Company and TransAmerican Energy Corporation, as Lender (terms defined therein
being used herein as therein defined), to the Lender as follows:
Section 1. Names.
(a) The exact corporate name of the Company, as it
appears in its certificate of incorporation is as follows:
TransAmerican Refining Corporation
(b) Set forth below is each other corporate name the
Company has had since its organization, together with the date of the
relevant change:
n/a
(c) The Company has not changed its identity or corporate
structure in any way within the past five years except:
n/a
(d) The following is a list of all other names (including
trade names or similar appellations) used by the Company or any of its
divisions or other business units at any time during the past five
years:
n/a
Section 2. Current Locations.
(a) The chief executive office of the Company is located
at the following address:
Mailing Address County State
--------------- ------ -----
0000 X. Xxx Xxxxxxx Xxxxxxx Xxxx Xxxxxx Xxxxx
Houston, 77032
(b) The following are all the places of business of the
Company not identified above:
Mailing Address County State
--------------- ------ -----
00000 Xxxxx Xxxx Xx. Xxxxxxx Xxxxxxxxx
Xxx Xxxxx, 00000
A-1
22
Section 3. Prior Locations. Set forth below is the information
required by subparagraphs (a) and (b) of Section 2 with respect to each
location or place of business maintained by the Company at any time during the
past five years:
n/a
Section 4. UCC Filings. A duly signed financing statement on Form
UCC-1 in substantially the form of Schedule 4(a) hereto has been duly filed in
the UCC filing office in each jurisdiction identified in Section 2 hereof. The
Company will deliver a true copy of each such filing duly acknowledged by the
filing officer as soon as practicable after the date hereof.
Section 5. Schedule of Filings. Attached hereto as Schedule 5 is a
schedule setting forth filing information with respect to the filings described
in Section 4 above.
Section 6. Filings Fees. All filing fees and taxes payable in
connection with the filings described in Section 4 above have been paid.
A-2
23
IN WITNESS WHEREOF, the undersigned have hereunto set their
hands this ___ day of June, 1997 in the respective capacities indicated below
their signatures.
---------------------------------------
Name:
---------------------------------
Title:
--------------------------------
A-3
24
SCHEDULE 2(b)
PLEDGED COLLATERAL
================================================================================
Percentage
Stock Number of
Stock Class of Certificate Par of Outstanding
Issuer Stock No.(s) Value Shares Shares
------ ----- ------ ----- ------ ------
================================================================================
--------------------------------------------------------------------------------
================================================================================
1
25
SCHEDULE 4(a)
DESCRIPTION OF COLLATERAL
All of the Debtor's right, title and interest in, to and under any and all of
the following described property, assets and rights, in each case, wherever
located, whether now owned or hereafter acquired or arising, all accessions and
additions thereto, all substitutions and replacements therefor, and all
proceeds and products thereof and assigns all rights in and to all collateral
securing the following described property, assets and rights:
(i) all personal and fixture property of every
kind and nature including, without limitation, all furniture,
fixtures, raw materials, goods, contract rights, rights to the
payment of money, insurance refund claims and all other
insurance claims and proceeds, tort claims, chattel paper,
documents, instruments (including certificated securities),
deposit accounts and all general intangibles including,
without limitation, all uncertificated securities, tax refund
claims, license fees, patents, patent applications,
trademarks, trademark applications, trade names, copyrights,
copyright applications, rights to xxx and recover for past
infringement of patents, trademarks and copyrights, computer
programs, computer software, engineering drawings, service
marks, customer lists, goodwill, and all licenses, permits,
agreements of any kind or nature pursuant to which the Debtor
possesses, uses or has authority to possess or use property
(whether tangible or intangible) of others or others possess,
use or have authority to possess or use property (whether
tangible or intangible) of the Debtor, and all recorded data
of any kind or nature, regardless of the medium of recording
including, without limitation, all software, writings, plans,
specifications and schematics (any and all such property being
the "UCC Collateral"); provided, however, that nothing herein
shall be construed to include within, and there is expressly
excluded from, the UCC Collateral, any now owned or hereafter
acquired equipment, inventory or receivables ;
(ii) all of the issued and outstanding shares of
common stock identified on Schedule 2(b) attached hereto of
any other subsidiary of the Debtor presently existing or
hereafter created or acquired (the "Pledged Subsidiaries")
therein set forth;
(iii) all other shares of common stock or other
equity securities now or hereafter acquired by the Debtor in
any manner issued by the Pledged Subsidiaries, and the
certificates representing such securities, and any present or
future options, warrants or other rights to subscribe for or
purchase any property described in Section 2(b)(i) or any
notes, bonds, debentures or other evidences of indebtedness
now or hereafter owned or acquired by the Debtor in any manner
that (A) are at any time convertible, exchangeable or
exercisable into capital stock or other equity securities of
the Pledged Subsidiaries or (B) have or at any time could by
their terms have voting rights with respect to any matter
affecting the Pledged Subsidiaries and all securities,
certificates and instruments representing or evidencing
ownership of any of the property described in Section 2(b)
hereof;
(iv) all proceeds and products of the foregoing
and distributions thereof or with respect thereto, including
without limitation dividends, distributions, cash,
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instruments and other property or securities, now or hereafter
at any time or from time to time received or receivable or
otherwise distributed or distributable in respect of or in
exchange for any or all of the foregoing; and
(v) The disbursement account (the "Disbursement
Account") maintained at Firstar Bank of Minnesota, N.A., more
specifically described on Schedule I, owned by the Debtor and
created by that certain Disbursement Agreement by and among
the Debtor, the Secured Party, the disbursement agent named
therein and the construction supervisor named therein, as
amended pursuant to the terms thereof, and all investments,
securities, financial assets credited thereto and security
entitlements with respect thereto, and all certificates and
instruments, if any, from time to time representing or
evidencing the Disbursement Account or any property credited
thereto, whether now owned by the Debtor or existing or
hereafter acquired, created or arising including the proceeds
thereof (the "Assigned Collateral" and, together with the UCC
Collateral and the Pledged Collateral, the "Collateral").
Notwithstanding anything herein to the contrary, the stock of any Unrestricted
Subsidiary shall not constitute Collateral hereunder.
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SCHEDULE 5
SCHEDULE OF FILINGS
Debtor Filing Officer File Number Date(1)
------ -------------- ----------- ----
____________________
(1) Indicate lapse date, if other than fifth anniversary.
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