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EXHIBIT 4.11
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TRANSAMERICAN REFINING CORPORATION
and
FIRST UNION NATIONAL BANK,
as Trustee
____________________________
SECURITY AGREEMENT
Dated as of March 14, 1997
____________________________
$36,000,000 Senior Secured Notes due March 14, 1998
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SECURITY AGREEMENT
This SECURITY AGREEMENT, together with any amendments, replacements and
supplements hereafter entered into (the "Security Agreement"), dated as of
March 14, 1997, between TransAmerican Refining Corporation (together with its
successors and assigns, the "Company") and First Union National Bank, (together
with its successors and assigns, the "Trustee"), is made for the benefit of the
Holders. As used herein, all capitalized terms not otherwise defined herein
shall have the meanings set forth in the Indenture (the "Indenture"), dated the
date hereof, between the Company and the Trustee, relating to the Company's
Senior Secured Notes due March 14, 1998 (the "Notes"), as amended from time to
time in accordance with the terms thereof.
W I T N E S S E T H:
WHEREAS, the Company will issue $36,000,000 aggregate principal amount
of Notes pursuant to the Indenture;
WHEREAS, pursuant to the Disbursement Agreement, the Company has opened
the custodial account described in Schedule I hereto (the "Collateral Account")
at and with First Union National Bank, (the "Disbursement Agent"), at its
corporate trust offices at 00 Xxxxx Xxxxxx, Xxxxx 000, Xxx Xxxx, Xxx Xxxx
00000, and will make an initial deposit of $36,000,000 to the Collateral
Account, consisting of the entire proceeds of the sale of the Notes; and
WHEREAS, in order to secure the payment and performance in full of the
Indenture obligations, the parties hereto desire to set forth their mutual
understanding and certain agreements regarding the terms and conditions of the
granting of a security interest in the Account Collateral(as defined below)
made by the Company to the Trustee for the benefit of the Holders of the Notes.
NOW, THEREFORE, in consideration of the premises and other benefits to
the Company, the receipt and sufficiency of which are hereby acknowledge, the
parties hereto hereby agree as follows:
Section 1. Grant of Security. The Company hereby assigns and pledges
to the Trustee for the ratable benefit of the Holders, and hereby grants to the
Trustee for the ratable benefit of the Holders, a security interest in all of
the Company's right, title and interest in and to all of the following
(collectively, the "Account Collateral"):
(a) the Collateral Account, all funds therein and all
certificates and instruments, if any, from time to time representing or
evidencing the Collateral Account;
(b) all Collateral Investments (as hereinafter defined) from
time to time and all certificates and instruments, if any, from time to time
representing or evidencing the Collateral Investments;
(c) all notes, certificates of deposit, deposit accounts,
checks and other instruments from time to time hereafter delivered to or
otherwise possessed by the Trustee for or on behalf of the Company, in
substitution for or in addition to any or all of the then existing Account
Collateral; and
(d) all interest, dividends, cash, instruments and other
property and assets from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of the then existing
Account Collateral.
Section 2. Security for Obligations. This Security Agreement secures
the prompt and complete payment and performance of all obligations under the
Indenture including, without limitation, the payment of all amounts owed by the
Company to the Trustee or the Holders under or with respect to the Indenture,
the Notes or any Security Document.
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Section 3. The Company Remains Liable. Anything herein to the contrary
notwithstanding,
(a) the Company shall remain liable under the contracts and
agreements included in the Account Collateral to the extent set forth therein
to perform all of the Company's duties and obligations thereunder to the same
extent as if this Security Agreement had not been executed:
(b) the exercise by the Trustee of any of the rights hereunder
shall not release the Company from any of its duties or obligations under the
contracts and agreements included in the Account Collateral; and
(c) neither the Trustee nor any Holder shall have any
obligation or liability under the contracts and agreements included in the
Account Collateral by reason of this Security Agreement, nor shall the Trustee
or any Holder be obligated to perform any of the obligations or duties of the
Company thereunder or to take any action to collect or enforce any claim for
payment assigned hereunder.
Section 4. Delivery of Account Collateral. All certificates or
instruments representing or evidencing Account Collateral shall be delivered to
and held by the Disbursement Agent on behalf of the Trustee for the benefit of
the Holders of the Notes pursuant to this Agreement and the Disbursement
Agreement and shall be in suitable form for transfer by delivery, or shall be
accompanied by duly executed instruments of transfer or assignment in blank,
all in form and substance reasonably satisfactory to the Trustee. The Trustee
shall have the right, at any time and without notice to the Company, to
transfer to or to register in the name of the Trustee or any of its nominees
any or all of the Account Collateral. In addition, the Trustee shall have the
right at any time to exchange certificates or instruments representing or
evidencing Account Collateral for certificates or instruments of smaller or
larger denominations.
Section 5. Maintaining the Collateral Account. So long as any
Indenture obligation shall remain unpaid and until such time as the Indenture
shall have been satisfied and discharged in accordance with Article VIII
thereof;
(a) the Company shall maintain the Collateral Account only
with the Disbursement Agent, and with the sole dominion and control of the
Trustee and the Disbursement Agent; and
(b) except as permitted by the Disbursement Agreement, it
shall be a term and condition of the Collateral Account, notwithstanding any
term or condition to the contrary in any other agreement relating to such
Collateral Account and except as otherwise provided in Section 12 hereof, that
no amount (including interest on Collateral Investments) shall be paid or
released to or for the account of, or withdrawn by or for the account of, the
Company or any other Person from the Collateral Account.
The Collateral Account shall be subject to such applicable laws, and such
applicable regulations of the Board of Governors of the Federal Reserve System
and of any other appropriate banking or governmental authority, as may now or
hereafter be in effect.
Section 6. Investing of Amounts in the Collateral Account. The Trustee
will, upon receipt of the written instructions of the Company from time to
time, subject to Section 12 hereof, instruct the Disbursement Agent to
(a) invest amounts on deposit in the Collateral Account in
such Cash Equivalents and Marketable Securities in the name of the Trustee as
the Company may select; and
(b) invest interest paid on the Cash Equivalents and
Marketable Securities referred to in clause (a) above, and reinvest other
proceeds of any such Cash Equivalents or Marketable Securities that may mature
or be sold in the name of the Trustee as the Company may select.
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The Cash Equivalents and Marketable Securities referred to in clauses (a) and
(b) above are herein referred to, collectively, "Collateral Investments".
Interest and proceeds that are not invested or reinvested in Collateral
Investments as provided in the immediately preceding sentence shall be
deposited and held in the Collateral Account. The Trustee shall have no
liability for investments made in accordance with the Company's written
instructions, except for losses and damages due to the gross negligence,
recklessness or willful misconduct of the Trustee.
Section 7. Representations and Warranties. The Company represents and
warrants for itself and the Account Collateral as follows:
(a) The Company is the legal and beneficial owner of the
Account Collateral in which it is granting a security interest free and clear
of any Lien, except for Liens created hereunder in favor of the Trustee and
Permitted Liens (as such term is defined in the Indenture). No effective
financing statement or other instrument similar in effect covering all or any
part of the Account Collateral is on file in any recording office, except such
as may have been filed in favor of the Trustee relating to this Security
Agreement or such as may relate to Permitted Liens.
(b) The Company is authorized to enter into this Security
Agreement, to perform its obligations hereunder and to consummate the
transactions contemplated hereby. This Security Agreement represents a legal,
valid and binding obligation of the Company, enforceable against the Company in
accordance with its terms, except as enforceability hereof may be limited by
bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium or
other similar laws relating to creditors' rights generally and by general
principals of equity (regardless of whether such enforceability is considered
in a proceeding in equity or at law).
(c) This Security Agreement and the pledge and assignment of
the Account Collateral pursuant hereto create a valid security interest in the
Account Collateral, securing the payment of the Indenture obligations.
(d) Neither the execution and delivery of this Security
Agreement by the Company, the consummation of the transactions herein
contemplated nor the fulfillment of the terms hereof 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, the violation of which would (x) have
a material adverse effect on the business, assets, operation or condition of
the Company or (y) materially impair the rights of the benefits available to
the Trustee under this Security Agreement or (z) materially impair the value of
the Account Collateral, (iii) violate any law, order, rule or regulation
applicable to the Company of any court or any other governmental body having
jurisdiction over the Company or its properties, the violation of which would
(x) have a material adverse effect on the business, assets, operation or
condition of the Company or (y) materially impair the rights of the benefits
available to the Trustee under this Security Agreement or (z) materially impair
the value of the Account Collateral, 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 Account Collateral.
(e) No authorization, approval or other action by, and no
notice to or filing with, any governmental authority or regulatory body or
other third party is required for (i) the grant by the Company of the pledge,
assignment and security interest granted hereby or the execution, delivery or
performance of this Security Agreement by the Company, (ii) the perfection or
maintenance of the pledge, assignment and security interest crated hereby, or
(iii) the exercise by the Trustee of its rights provided for in this Security
Agreement or the remedies in respect of the Account Collateral pursuant to this
Security Agreement, other than those authorizations, approvals, actions,
notices and filings which have been obtained, taken, given or made, as
applicable.
Section 8. Certain Covenants. So long as the payment or performance of
any Indenture obligation remains outstanding and until such time as the
Indenture shall have been satisfied and discharged in accordance with Article
VIII hereof, the Company shall:
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(a) comply, and cause each of its Subsidiaries to comply, in
all material respects, with all applicable laws, rules, regulations and orders,
such compliance to include, without limitation, compliance with the Employment
Retirement Income Security Act of 1974, as amended, and the Racketeer
Influenced and Corrupt Organizations Chapter of the Organized Crime Control Act
of 1970;
(b) pay and discharge, and cause each of its Subsidiaries to
pay and discharge, before the same shall become delinquent (i) all taxes,
assessments and governmental charges or levies imposed upon the Account
Collateral and (ii) all lawful claims that, if unpaid, might by law become a
Lien upon the Account Collateral in accordance with, and to the extent required
under, Section 4.7 of the Indenture;
(c) from time to time, at the sole expense of the Company,
(i) promptly execute and deliver all further
instruments and documents, and take all further action, that may be
necessary or reasonably desirable, or that the Trustee may reasonably
request, in order to perfect and protect any pledge, assignment or
security interest granted or purported to be granted hereby or to enable
the Trustee to exercise and enforce its rights and remedies hereunder
with respect to any Account Collateral; and
(ii) furnish to the Trustee statements and schedules
further identifying and describing the Account Collateral and such other
reports in connection with the Account Collateral as the Trustee may
reasonably request, all in reasonable detail (provided, however, that
the Trustee shall have no liability in the event that it determines not
to make such request).
The Company hereby authorizes the Trustee to file one or more financing or
continuation statements, and amendments thereto, relating to all or any party
of the Account Collateral without the signature of the Company where permitted
by law and by power of attorney where acquired. A photocopy or other
reproduction of this Security Agreement or any financing statement covering the
Account Collateral or any part thereof shall be sufficient as a financing
statement where permitted by law;
(d) permit the Trustee, for the benefit of the Holders, at all
times to have full and free access during normal business hours to all the
books, correspondence and records of the Company relating to the Account
Collateral (other than information which is privileged and confidential), and
the Trustee, for the benefit of the Holders, may examine the same, make
abstracts therefrom and make photocopies thereof, and the Company agrees to
render to the Trustee, for the benefit of the Holders, at the Company's sole
cost and expense, such clerical and other assistance as may be reasonably
requested with regard thereto;
(e) not change its name or conduct any significant portion of
its business under any new tradenames, identity or corporate structure until
(i) it shall have given to the Trustee, for the benefit of the Holders, not
less than thirty (30) days prior written notice of its intention to do so in
the case of a change of name, identity or corporate structure, or thirty (30)
days prior written notice of its intention to do so in the case of a new
tradename, clearly describing such new name, identity or corporate structure or
such new tradename and providing such other information in connection therewith
as the Trustee, for the benefit of the Holders, may reasonably request, and
(ii) with respect to such new name, identity or corporate structure or such new
tradename, it shall have taken all action satisfactory to the Trustee, as the
Trustee, for the benefit of the Holders, may reasonably request to maintain the
security interest in the Account Collateral intended to be granted hereby at
all times fully perfected with the same or better priority and in full force
and effect;
(f) not take or permit to be taken any action which is
reasonably likely to impair the Account Collateral or the Trustee's rights in
the Account Collateral;
(g) not create, incur or permit to exist, will defend the
Account Collateral against, and will take such other action as is necessary to
remove, any Lien or claim on or to the Account Collateral, other than the
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Liens created hereby and Permitted Liens and will defend the right, title and
interest of the Trustee for the benefit of the Holders in and to any of the
Account Collateral against the claims and demands of all Persons whomsoever
(other than the holders of a Permitted Lien); and
(h) not sell, assign (by operation of law or otherwise) or
otherwise dispose of, or grant any option with respect to, any of the Account
Collateral.
Section 9. Trustee Appointed Attorney-in-Fact. The Company hereby
appoints the Trustee the Company's attorney-in-fact, effective upon the
occurrence and during the continuance of an Event of Default, which appointment
is irrevocable and coupled with an interest, with full authority in the place
and stead of the Company and in the name of the Company or otherwise, from time
to time, to take any action and to execute any instrument necessary to
accomplish the purposes of this Security Agreement, including, without
limitation, to file any claims or take any action or institute any proceedings
necessary for the collection of any of the Account Collateral, to enforce
compliance with the terms and conditions of any agreements that are part of the
Account Collateral or to enforce the rights of the Trustee with respect to any
of the Account Collateral.
Section 10. Trustee May Perform. If the Company fails to perform any
agreement contained herein, the Trustee may itself perform, or cause
performance of, such agreement, and the expenses of the Trustee incurred in
connection therewith shall be payable by the Company under Section 15(b)
hereof. Regardless of whether or not there shall have occurred any Default or
Event of Default, the Trustee may institute and maintain or cause in the name
of the Company or the Trustee, or any of them, to be instituted and maintained,
such suits and proceedings as the Trustee may be advised by counsel shall be
necessary or expedient to prevent any impairment of the security interest in or
perfection of the Account Collateral in contravention of the terms of the
Indenture.
Section 11. Trustee's Duties. The powers conferred on the Trustee
hereunder are solely to protect its interest in the Account Collateral and
shall not impose any duty upon it to exercise any such powers. Except for the
safe custody of any Account Collateral in its actual possession or under its
exclusive control, and the accounting for moneys actually received by it
hereunder, and except as otherwise expressly set forth herein, in the Indenture
and in the Disbursement Agreement, the Trustee shall have no duty as to any
Account Collateral, or as to the taking of any necessary steps to preserve
rights against any parties or any other rights pertaining to any Account
Collateral.
Section 12. Default; Remedies.
(a) "Event of Default" shall have the meaning set forth in the
Indenture.
(b) If an Event of Default shall have occurred and be
continuing to the actual knowledge of the Trustee, the Trustee shall commence
the taking of such actions (or refrain from taking actions) toward collection
or enforcement of the Security Agreement and the Account Collateral (or any
portion thereof), including, without limitation, action toward foreclosure upon
any Account Collateral, as it deems appropriate in its sole discretion or as
instructed by the Requisite Holders (as defined in Section 12(g) below) to the
extent allowed by law. If any Event of Default that was the basis for the
commencement of such action shall have been cured or waived, and, in the case
where there has been an acceleration, rescission of such acceleration shall
have occurred, in each case in accordance with the terms of the Indenture, any
direction to the Trustee to take any action in connection with the
aforementioned notice shall be deemed rescinded upon notification by that
percentage of Holders necessary to effect such waiver with respect to such
Event of Default as provided for in the Indenture. The Trustee shall have no
obligation to take any collection or enforcement action except upon
satisfaction of the conditions set forth in Section 6.7 and 6.11 of the
Indenture applied to this Security Agreement.
(c) If an Event of Default shall have occurred and be
continuing, the Trustee itself or by its agents or attorneys may (i) exercise
any or all of its rights and remedies under the Indenture, any Security
Document or any other instrument or agreement securing, evidencing or relating
to the Indenture obligations or
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under applicable laws, (ii) retain, gain or acquire possession of the Account
Collateral of (iii) sell, assign, transfer or dispose of, or endorse and
deliver, the whole or, from time to time, any part of the Account Collateral at
public or private sale or sales, at any exchanges, brokers board or at any of
the Trustee's offices or elsewhere, for cash, upon credit or for other
property, for immediate or future delivery and, to the extent permitted by law,
for such price or prices and on such other terms as the Trustee may deem
commercially reasonable. Upon consummation of any such sale, the Trustee shall
have the right to assign, transfer, endorse and deliver to the purchaser or
purchasers thereof the Account Collateral so sold. Each such purchaser at any
such sale shall holder the property sold absolutely free from any claim or
right on the part of the Company, and the Company hereby waives (to the full
extent permitted by law) all rights of redemption, stay or appraisal that the
Company now has or may at any time in the future have under any rule of law or
statute now existing or hereafter enacted. The Trustee shall give the Company
ten (10) business days' notice (which the Company agrees shall be deemed to be
reasonable notification within the meaning of Section 9-504(3) of the UCC) of
the Trustee's intention to make any such public or private sale. Any such sale
shall be held at such time or times and at such place or places as the Trustee
may fix. At any such sale, the Account Collateral, or portion thereof to be
sold, may be sold as an entirety or in separate portions, as the Trustee may,
in its sole discretion, determine. The Trustee shall not be obligated to make
any sale of the Account Collateral if it shall determine not to do so,
regardless of the fact that notice of sale of the Account Collateral may have
been given. The Trustee 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 sale, and such sale may, without
further notice, be made at the time and place to which the same was so
adjourned. In case sale of all or any part of the Account Collateral is made
on credit for future delivery, the Account Collateral so sold may be retained
by the trustee until the sale price is paid by the purchaser or purchasers
thereof, but the Trustee shall not incur any liability in case any such
purchaser or purchasers shall fail to take up and pay for the Account
Collateral so sold and, in case of any such failure, such Account Collateral
may be sold again upon like notice. As an alternative to exercising the power
of sale herein conferred upon it, the Trustee may proceed by suits or suits at
law or in equity to foreclose the lien created by this Security Agreement and
sell the Account Collateral or any portion thereof pursuant to judgment or
decree of a court or courts having competent jurisdiction. If under mandatory
requirements of applicable law, the Trustee shall be required to make
disposition of the Account Collateral within a period of time that does not
permit the giving of notice to the Company as hereinbefore provided, the
Trustee need give the Company only such notice of disposition as shall be
reasonably practicable in view of such mandatory requirements of law.
(d) The Company agrees that, if any Event of Default shall
have occurred and be continuing, than and in every case, and in addition to the
rights and remedies available to a secured party under any applicable provision
of the UCC, or any other applicable law, the Trustee may:
(i) instruct the obligor or obligors on any instrument
or other obligation constituting the Account Collateral to make any
payment or render any performance required by the terms of such
instrument or obligation directly to the Trustee or its designee;
(ii) sell or otherwise liquidate, or direct the Company
to sell or other liquidate, any or all investments made in whole or in
part with the Account Collateral or any part thereof, and take
possession of the proceeds of any such sale or liquidation;
(iii) exercise any and all rights and remedies of the
Company in respect of the Account Collateral, including, without
limitation, any and all rights of the Company to demand or otherwise
require payment of any amount under, or performance of any provision of,
any agreement, and all payments received by the Company under or in
connection with any agreement, and all payments received by the Company
under or in connection with any agreement or otherwise in respect of the
Account Collateral shall be received in trust for the benefit of the
Trustee, shall be segregated from other property and funds of the
Company and shall be forthwith paid over to the Trustee in the same form
as so received (with any necessary endorsement); or
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(iv) without notice to the Company except as required by
law and at any time or from time to time, charge, set off and otherwise
apply all or any part of the Account Collateral against all or any part
of the Indenture obligation and, in connection therewith, the Trustee,
without notice to the Company, may instruct the Disbursement Agent in
writing to deliver all or any part of the Account Collateral to the
Trustee.
(e) At any public sale of the Account Collateral, whether
pursuant to power of sale or otherwise hereunder, the Trustee or any Holder
may, to the extent permitted by applicable law, bid for and purchase, free from
any right of redemption, stay or appraisal (all such rights being hereby waived
and released by the Company to the extent permitted by law), the Account
Collateral or any part thereof or an interest therein and upon compliance with
the terms of such public sale may hold, retain, exploit, resell or otherwise
dispose of such property without further accountability to the Company for the
proceeds of such public sale, except to the extent that there is a surplus of
such proceeds in excess of the Indenture obligations, in which case, such
surplus shall be delivered to the Company. The Company will execute and
deliver or cause to be executed and delivered, such instruments, endorsements,
assignments, waivers, certificates and other documents and take such further
action as the Trustee shall request in connection with any such public sale.
(f) If an Event of Default shall have occurred and be
continuing, all proceeds received by the Trustee in respect of any sale of,
collection from, or other realization upon all or any of the Account
Collateral, together with any monies held by the Trustee under the provisions
of this Security Agreement, shall be applied by the Trustee in accordance with
the provisions of Section 6.6 of the Indenture. All payments received by the
Company under or in respect of the Account Collateral shall be received in
trust for the benefit of the Trustee, shall be segregated from other property
of the Company shall be forthwith paid over to the Trustee in the same form as
received (with any necessary endorsement).
(g) For purposes of this Section 12, "Requisite Holders" means
the Holder or Holders of a majority of the aggregate principal amount of the
outstanding Notes.
Section 13. Sale of Account Collateral. If the Trustee shall determine
to exercise its right to sell, assign or transfer all or any of the Account
Collateral pursuant to Section 12 hereof, the Company agrees that, upon request
of the Trustee, the Company will do or cause to be done all acts and things as
may be necessary to make such sale, assignment or transfer of the Account
Collateral or any part thereof valid and binding and in compliance with
applicable law. The Trustee is authorized, in connection with any sale of the
Account Collateral pursuant to Section 12 hereof, to deliver or otherwise
disclose to any prospective purchaser of the Collateral any information in its
possession relating to the Account Collateral. The Company acknowledges the
impossibility of ascertaining the amount of damages that would be suffered by
the Trustee or the Holders by reason of the failure by the Company to perform
any of the covenants contained in this Section 13 and, consequently, agrees
that, if the Company shall fail to perform any of such covenants, it shall pay,
as liquidated damages and not as a penalty, an amount equal to the value of the
Account Collateral on the date the Trustee shall demand compliance with this
Section 13.
Section 14. Regulatory Matters.
(a) The Company shall take all action that the Trustee may
request in the exercise of its rights and remedies hereunder. In furtherance
of this right, the Company shall:
(i) cooperate fully with the Trustee in obtaining all
approvals and consents from each governmental authority that the Trustee
may deem necessary or advisable to accomplish any transfer or assignment
of any part of the Account Collateral;
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(ii) prepare, execute and file with any government authority
any application request for consent, certificate or instrument that the
Trustee may deem necessary or advisable to accomplish any such transfer
or assignment of any part of the Account Collateral; and
(iii) do or cause to be done all such other acts and things as
may be necessary to make any sale or sales of all or any part of the
Account Collateral valid and binding and in compliance with any and all
applicable laws, rules, regulations, orders or decrees, all at the
Company's expense.
The Company further agrees that a breach of any of the covenants contained in
this Section 14 will cause irreparable injury to the Trustee, as secured party,
for which the Trustee would have no adequate remedy at law in respect for such
breach and, as a consequence, agrees that each and every covenant contained in
this Section 14 shall be specifically enforceable against the Company and the
Company waives and agrees not to assert any defenses against an action for
specific performance of such covenants.
(b) To enforce the provisions of this Section 14, the Trustee
is authorized to request the consent or approval of any governmental authority
to a voluntary or involuntary transfer of control of any of the Account
Collateral. In connection with the exercise of its remedies under this
Security Agreement, the Trustee may obtain the appointment of a trustee or
receiver to assume, upon receipt of all necessary consents and approvals of any
judicial or other governmental authority, control of the Account Collateral.
Such trustee or receiver shall have all rights and powers provided to it by law
or by court order or provided to the Trustee under this Security Agreement.
Section 15. Indemnity and Expenses.
(a) The Company agrees to indemnify the Trustee from and
against any and all claims, losses and liabilities growing out of or resulting
from this Security Agreement (including, without limitation, enforcement of the
Security Agreement), except (i) valid claims (as determined by a nonappealable
order of any court of competent jurisdiction) arising out of a breach by the
Trustee of this Agreement or the Disbursement Agreement, or (ii) claims, losses
or liabilities resulting from the Trustee's gross negligence, bad faith,
recklessness or willful misconduct, as determined by a final judgment of a
court of competent jurisdiction. The indemnification of the Trustee set forth
in the immediately preceding sentence is cumulative and not exclusive of any
indemnity of the Trustee set forth in the Indenture.
(b) The Company will pay upon demand to the Trustee the amount
of any and all reasonable out-of-pocket expenses, including the reasonable fees
and expenses of its counsel and of any experts and agents, that the Trustee may
incur in connection with (i) the negotiation, execution and enforcement of this
Security Agreement, (ii) the custody, preservation, use or operation of, or the
sale of, collection from or other realization upon, any of the Account
Collateral, (iii) the exercise or enforcement of any of the rights of the
Trustee or the Holders hereunder or (iv) the failure by the Company to perform
or observe any of the provisions hereof, and all amounts so incurred by the
Trustee shall be entitled to the benefits of Section 7.7 of the Indenture.
Section 16. Amendments; Waivers; Etc. No amendment or waiver of any
provision of this Security Agreement, and no consent to any departure by the
Company herefrom, shall in any event be effective unless the same shall be in
writing and signed by the Trustee, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given. No failure on the part of the Trustee to exercise, and no delay in
exercising any right hereunder, shall operate as a waiver thereof or consent
thereto, nor shall any single or partial exercise of any such right preclude
any other or further exercise thereof or the exercise of any other right.
Section 17. 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
14.2 of the Indenture. Any
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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). The Company may give notice to the Holders at the
addresses set forth for them in the register kept by the Registrar under the
Indenture or may request that the Trustee notify the Holders at such addresses.
Section 18. Continuing Security Interest; Assignment Under the
Indenture. This Security Agreement shall create a continuing security interest
in the Account Collateral and shall (a) remain in full force and effect until
the date on which the Indenture obligations shall have been indefeasibly paid
in full and the Indenture shall have been satisfied and discharged in
accordance with Article VIII thereof, (b) be binding upon the Company, its
successors and assigns and (c) inure, together with the rights and remedies of
the Trustee hereunder, to the benefit of the Trustee, the Holders and their
respective successors, transferees and assigns. Without limiting the
generality of the foregoing clause (c), any Holder may assign or otherwise
transfer all or any portion of its rights and obligations under the Notes held
by it to any other Person, and such other Person shall thereupon become vested
with all the benefits in respect thereof granted to such Holder herein or
otherwise, in each case as provided in the Indenture.
Section 19. Release and Termination. On the date on which the
Indenture obligations shall have been indefeasibly paid and performed in full
and the Indenture shall have been satisfied and discharged in accordance with
Article VIII thereof, the pledge, assignment and security interest granted
hereby shall terminate and all rights to the Account Collateral shall revert to
the Company. Upon any such termination, the Trustee, at the Company's expense,
will return to the Company such of the Account Collateral in its possession as
shall not have been sold, transferred or otherwise applied pursuant to the
terms of the Notes, the Indenture and the Security Documents, and will execute
and deliver to the Company such documents prepared by the Company and delivered
to the Trustee as the Company shall reasonably request to evidence such
termination, provided, however, that this Security Agreement shall continue to
be effective or be reinstated, as the case may be, if at any time any payment
of any of the Indenture obligations is rescinded or must otherwise be returned
upon the insolvency, bankruptcy or reorganization of the Company as if such
payment had not been made.
Section 20. Governing Law; Terms. This Security Agreement shall be
construed in accordance with, and this Security Agreement and the transactions
described herein shall be governed by, the laws of the State of New York as to
all issues, including, without limitation, issues of validity, interpretation,
effect, performance and remedies. Unless otherwise defined herein or in the
Indenture, terms used in Article 9 of the New York Uniform Commercial Code are
used herein as therein defined.
Section 21. Waiver of Claims. Except as otherwise provided in this
Security Agreement, THE COMPANY HEREBY WAIVES, TO THE EXTENT PERMITTED BY
APPLICABLE LAW, NOTICE OF JUDICIAL HEARING IN CONNECTION WITH THE TRUSTEE'S
TAKING POSSESSION OR THE TRUSTEE'S DISPOSITION OF ANY OF THE ACCOUNT
COLLATERAL, INCLUDING, WITHOUT LIMITATION, ANY AND ALL PRIOR NOTICES AND
HEARINGS FOR ANY PREJUDGMENT REMEDY OR REMEDIES AND ANY SUCH RIGHT THAT THE
COMPANY WOULD OTHERWISE HAVE UNDER THE CONSTITUTION OR ANY STATUTE OF THE
UNITED STATES OR OF ANY STATE, and to the full extent permitted by applicable
law, the Company hereby further waives:
(a) all damages occasioned by such taking of possession except any
damages which are the direct result of the Trustee's gross negligence, bad
faith or willful misconduct;
(b) all other requirements as to the time, place and terms of sale or
other requirements, with respect to the enforcement of the Trustee's rights and
powers hereunder; and
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(c) except as provided in Section 12(c) hereof, all rights of
redemption, appraisement, valuation, stay, marshalling of assets, extension or
moratorium, existing at law or in equity, by statute or otherwise, now or
hereafter in force, in order to prevent or delay the enforcement of this
Security Agreement or the sale or other disposition of the Account Collateral
or any portion thereof, and the Company, for itself and all who may claim under
it, insofar as it now or hereafter lawfully may, hereby waives all such rights.
Any sale of, or the exercise of any options to purchase, or any other
realization upon, any Account Collateral shall operate to divest all right,
title, interest, claim and demand, at law or in equity, of the Company therein
and thereto, and shall be a perpetual bar, both at law and in equity, against
the Company and against any and all persons claiming or attempting to claim the
Account Collateral so sold, optioned or realized upon, or any part thereof,
through and under the Company.
Section 22. Waiver of Jury Trial. THE COMPANY HEREBY IRREVOCABLY
WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
(WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO
THIS SECURITY AGREEMENT, OR THE ACTIONS OF ANY PARTY HERETO IN THE NEGOTIATION,
ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.
Section 23. Remedies Cumulative; No Waiver. Each right, power and
remedy of the Trustee provided for herein, in the Indenture or any Security
Document or in another agreement pursuant to which a Lien is created in favor
of the Trustee for the benefit of any Holder, or now or hereafter existing at
law or in equity, by statute or otherwise, shall be cumulative and concurrent
and shall be in addition to every other right, power or remedy of the Trustee
or any Holder provided for herein, in the Indenture or any Security Document or
in another agreement pursuant to which a Lien is created in favor of the
Trustee for the benefit of any Holder, or now or hereafter existing at law or
in equity, by statute or otherwise. No failure on the part of the Trustee or
any Holder to exercise, and no delay in exercising, any right, power or remedy
hereunder, or under the Indenture or any Security Document or under another
agreement pursuant to which a Lien is created in favor of the Trustee for the
benefit of any Holder, or now or hereafter existing at law or in equity, by
statute or otherwise, 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, power or remedy.
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, similar or other
circumstances.
Section 24. Additional Collateral. Without notice or consent of the
Company and without impairment of the security interests and rights created by
this Security Agreement, the Trustee may accept from any person or persons
additional collateral or other security for the Indenture obligations. The
creation of the security interests created hereunder and the acceptance of any
such additional collateral or security shall not prevent the Trustee from
resorting to such additional collateral or security or to the Account
Collateral, in any order, and shall not affect the Trustee's rights hereunder.
Section 25. 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 Security
Agreement and any requirement that the Trustee 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.
Section 26. Severability. In the event that any provision contained in
this Security Agreement shall for any reason be held to be illegal or invalid
under the laws of any jurisdiction, such illegality or invalidity shall in no
way impair the effectiveness of any other provision hereof, or of such
provision under the laws of any other jurisdiction; provided, that in the
construction and enforcement of such provision under the laws of the
jurisdiction in which such holding of illegality or invalidity exists, and to
the extent only of such illegality or invalidity, this
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Security Agreement shall be construed and enforced as though such illegal or
invalid provision had not been contained herein.
Section 27. Headings. Section headings used herein are inserted for
convenience only and shall not in any way affect the meaning or construction of
any provision of this Security Agreement.
Section 28. Execution in Counterparts. This Security Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which when taken together shall constitute one and the same
agreement. A complete set of counterparts shall be lodged with the Trustee.
Section 29. Confidentiality. The parties agree that they and their
employees have maintained and will maintain, in confidence, all data,
summaries, reports or information of all kinds, whether oral or written,
provided pursuant to this Security Agreement or acquired or developed in any
manner from the other party's personnel or files (the "Confidential
Information"), and that they have not and will not reveal the same to any
persons not employed by the other party except: (a) at the written direction
of such party; (b) to the extent necessary to comply with the law, reporting
requirements imposed by the Securities and Exchange Commission, or the valid
order of a court of competent jurisdiction, in which event the disclosing party
shall no notify the other party as promptly as practicable (and, if possible,
prior to making any disclosure) and shall seek confidential treatment of such
information, or in connection with any arbitration proceeding; (c) as part of
its normal reporting or review procedure to its parent company, its auditors
and its attorneys, and such parent company, auditors and attorneys agree to be
bound by the provisions of this Section; (d) in order to enforce any of its
rights pursuant to, or in any other dispute with respect to, this Agreement;
(e) if, at the time of disclosure to the recipient, the Confidential
Information is in the public domain; (f) if, after disclosure to the recipient,
the Confidential Information becomes part of the public domain by written
publication through no fault of the recipient; or (g) to any one or more
Holders and their representatives and agents.
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IN WITNESS WHEREOF, the Company and the Trustee have caused this
Security Agreement to be duly executed and delivered by its officer thereunto
duly authorized as of the date first above written.
TRANSAMERICAN REFINING CORPORATION
By: /s/ Xx Xxxxxxx
------------------------------------
Authorized Signatory
FIRST UNION NATIONAL BANK, as Trustee
By: /s/ W. Xxxxxxx Xxxxxx
------------------------------------
Authorized Signatory
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