EXHIBIT 10.35
AMENDED AND RESTATED
COLLATERAL SECURITY AGREEMENT
THIS AMENDED AND RESTATED COLLATERAL SECURITY AGREEMENT (as the same
may be amended, modified, renewed or extended from time to time, this
"AGREEMENT"), dated as of October 30, 1996, is made by F.I.R.C., Inc., a
Delaware corporation (the "GRANTOR"), with Texas Commerce Bank National
Association, a national banking association, as collateral and paying agent (the
"BANK COLLATERAL AGENT"), for the ratable benefit of NationsBank of Texas, N.A.
(individually, "NATIONSBANK"), as the agent for the Banks (as defined below)
under the Credit Agreement referred to below (hereinafter referred to as the
"LOAN AGENT") and the financial institutions listed on the signature pages of
and any other financial institution that may thereafter become a party to the
Credit Agreement referred to below (hereinafter collectively referred to as the
"BANKS").
WITNESSETH:
WHEREAS, the Grantor, the Loan Agent, and the Banks are parties to that
certain Amended and Restated Credit Agreement dated as of even date herewith (as
may be amended, modified, renewed or extended from time to time, the "CREDIT
AGREEMENT"), pursuant to which the Banks will make revolving loans (the "LOANS")
to the Grantor from time to time;
WHEREAS, the Grantor will acquire certain Receivables (as defined in the
Credit Agreement) with the Loans advanced under the Credit Agreement;
WHEREAS, the Grantor previously entered into that certain Collateral
Security Agreement, dated as of October 16, 1992, as amended by a First
Amendment to Credit Agreement and Loan Documents, dated as of November 5, 1993,
and as further amended by a Second Amendment to Credit Agreement and Loan
Documents, dated as of March 3, 1994 (as amended, the "PRIOR SECURITY
AGREEMENT"), granting to the Bank Collateral Agent for the ratable benefit of
the Loan Agent and the Banks a security interest in, among other things, the
Receivables and the Collateral Account and the Escrow Account (as hereinafter
defined);
WHEREAS, it is a condition precedent to the making of the Loans under the
Credit Agreement that the Grantor enter into this Agreement to amend and restate
the Prior Security Agreement.
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants herein set forth and other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, and in order to induce
the Banks to make the Loans, the Grantor, the Bank Collateral Agent, the Loan
Agent and the Banks hereby agree as follows:
SECTION 1. DEFINITIONS. Unless the context clearly requires otherwise, all
initially capitalized terms defined in the Credit Agreement and not otherwise
defined herein shall have the meanings provided therein. In addition, unless the
context clearly requires otherwise, the following terms shall have the following
meanings:
"ACTUAL CREDIT LOSSES" has the meaning set forth in the Credit Agreement.
"BASE LEVEL COLLATERAL ACCOUNT BALANCE" means, with respect to any
Distribution Date, an amount equal to the greater of (a) the Initial Deposit or
(b) one percent (1%) of the most recently determined Receivable Portfolio
Balance.
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"COLLATERAL" shall have the meaning specified in Section 6.
"COLLATERAL ACCOUNT" shall have the meaning specified in Section 2.
"COLLATERAL ACCOUNT PROPERTY" shall have the meaning specified in Section
2.
"CORPORATE TRUST OFFICE" means the office of the Bank Collateral Agent at
which its corporate trust business shall be administered, which office at the
date of this Agreement shall be as set forth in Section 34 hereof.
"CREDIT LOSS PERCENTAGE" has the meaning set forth in the Credit
Agreement.
"DELIVERY" when used with respect to Collateral Account Property means:
(a) with respect to bankers' acceptances, commercial paper,
negotiable certificates of deposit and other obligations that constitute
"instruments" within the meaning of Section 9.105(a)(9) of the UCC and are
susceptible of physical delivery, transfer thereof to the Bank Collateral
Agent by physical delivery to the Bank Collateral Agent endorsed to, or
registered in the name of, the Bank Collateral Agent or its nominee or
endorsed in blank;
(b) with respect to a "certificated security" (as defined in Section
8.102(a)(4) of the UCC), transfer thereof (i) by physical delivery of such
certificated security to the Bank Collateral Agent endorsed to, or
registered in the name of, the Bank Collateral Agent or its nominee, (ii)
by physical delivery of such certificated security to another Person,
other than a "securities intermediary" (as defined in Section 8.102(a)(14)
of the UCC), acting on behalf of the Bank Collateral Agent, or if such
Person has previously acquired possession of the certificated security, by
such Person's acknowledgment that it holds such security on behalf of the
Bank Collateral Agent, or (iii) by physical delivery of such certificated
security to a securities intermediary acting on behalf of the Bank
Collateral Agent, but only if the certificate is in registered form and
has been specially indorsed to the Bank Collateral Agent by an effective
indorsement (all of the foregoing Collateral Account property described in
clauses (a) and (b) of the definition of "Delivery" being referred to as
"PHYSICAL PROPERTY") and, in any event, any such Physical Property in
registered form shall be in the name of the Bank Collateral Agent;
(c) with respect to any financial asset issued by the U.S. Treasury,
the Federal Home Loan Mortgage Corporation or by the Federal National
Mortgage Association that is a book entry financial asset held through the
Federal Reserve System pursuant to federal book entry regulations, the
following procedures, all in accordance with applicable law, including
applicable federal regulations and Articles 8 and 9 of the UCC: book entry
registration of such Property to an appropriate book entry account
maintained with a Federal Reserve Bank by a securities intermediary and
issuance by such Federal Reserve Bank of a deposit advice or other written
confirmation of such book entry registration to the securities
intermediary of such book entry financial asset; the sending of a
confirmation by the securities intermediary of the purchase by the Bank
Collateral Agent of such book entry financial asset and the making by such
securities intermediary of entries in its books and records identifying
such book entry financial asset held through the Federal Reserve System
pursuant to federal book entry regulations as belonging to the Bank
Collateral Agent acting in its capacity hereunder and indicating that such
securities
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intermediary holds such Collateral Account Property solely as agent for
the Bank Collateral Agent;
(d) with respect to any "uncertificated security" (as defined in
Section 8.102(a)(18) of the UCC) that is not governed by clause (c) above,
registration thereof on the books and records of the issuer thereof (i) of
the Bank Collateral Agent as registered owner or (ii) of another Person,
other than an intermediary, as registered owner on behalf of the Bank
Collateral Agent (or if such Person has previously become the registered
owner of such security, such Person's acknowledgment that it holds such
security on behalf of the Bank Collateral Agent); and
(e) such additional or alternative procedures, in form and substance
satisfactory to the Bank Collateral Agent, as may be or hereafter become
appropriate to transfer "control" (as provided in Section 8.106 of the
UCC) of any such Collateral Account Property to the Bank Collateral Agent,
or otherwise to protect, assure or enforce the interests, rights and
remedies of the Bank Collateral Agent, consistent with changes in
applicable law or regulations or the interpretation thereof.
"ESCROW ACCOUNT" has the meaning set forth in the Credit Agreement.
"INCREMENTAL RESERVE AMOUNT" means an amount equal to (a) on any
Distribution Date when the Incremental Reserve Percentage determined as of the
preceding Determination Date is equal to or less than zero percent, zero and (b)
on any Distribution Date when the Incremental Reserve Percentage determined as
of the preceding Determination Date is greater than zero percent, the
Incremental Reserve Percentage times the Receivable Portfolio Balance.
"INCREMENTAL RESERVE PERCENTAGE" means, on any Determination Date, a
percentage equal to the Credit Loss Percentage MINUS 3.00 %.
"INITIAL DEPOSIT" means the $250,000 deposit transferred into the
Collateral Account by the Grantor on or prior to the Closing Date.
"LIQUIDATED RECEIVABLE" has the meaning set forth in the Credit Agreement.
"LOAN CALCULATION" has the meaning specified in Section 5.
"LOAN PERCENTAGE" has the meaning set forth in the Credit Agreement.
"PERMITTED INVESTMENTS" shall have the meaning provided in Section 4.
"PHYSICAL PROPERTY" has the meaning assigned to such term in the
definition of "Delivery" above.
"PRINCIPAL BALANCE" has the meaning set forth in the Credit Agreement.
"PURCHASED RECEIVABLE" means a Receivable repurchased as of the respective
Determination Date by the Servicer or the Grantor pursuant to the Servicing
Agreement or by First Investors pursuant to the Purchase Agreement.
"RECEIVABLE PORTFOLIO BALANCE" has the meaning set forth in the Credit
Agreement.
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"SERVICING FEE" has the meaning specified in Section 1.01 of the Servicing
Agreement.
"SIMPLE INTEREST METHOD" means the method of allocating a fixed level
payment to principal and interest, pursuant to which the portion of such payment
that is allocated to interest is equal to the product of the fixed rate of
interest multiplied by the unpaid principal balance multiplied by the period of
time elapsed since the preceding payment of interest was made.
"SPECIFIED COLLATERAL ACCOUNT BALANCE" means, with respect to any
Distribution Date, an amount equal to the sum of (a) the Base Level Collateral
Account Balance PLUS (b) the Incremental Reserve Amount (if any).
"TEXAS COMMERCE" shall have the meaning specified in Section 19.
"UCC" means the Uniform Commercial Code as in effect in any applicable
jurisdiction.
SECTION 2. ESTABLISHMENT AND MAINTENANCE OF COLLATERAL ACCOUNT.
(a) On or prior to the Closing Date, the Bank Collateral Agent shall
establish a separate trust account (the "COLLATERAL ACCOUNT") with Texas
Commerce Bank National Association's "trust department," as that term is
defined in 12 C.F.R. ss. 9.1(j) and, except as may be permitted by
applicable law including 12 C.F.R. ss. 9.18, at all times segregated,
separate and distinct from (i) any and all other property or assets Texas
Commerce Bank National Association holds, administers, maintains, or
manages for others in a fiduciary or other capacity or otherwise owned by
others and the accounts established therefor, and (ii) all properties or
assets owned by, on deposit with, held by, or in possession of, or
controlled by, Texas Commerce Bank National Association, whether as part
of its commercial banking or savings activities or otherwise and the
accounts established therefor. The Bank Collateral Agent shall maintain
all records concerning the Collateral Account as "fiduciary records" as
defined in 12 C.F.R. ss. 9.1(d), separate and distinct from all other
records of Texas Commerce Bank National Association. The Collateral
Account shall be styled upon the fiduciary records of Texas Commerce Bank
National Association as "Texas Commerce Bank National Association as Bank
Collateral Agent for NationsBank of Texas, N.A. under Amended and Restated
Credit Agreement dated as of October 30, 1996".
(b) On the Closing Date, the Grantor shall deposit the Initial
Deposit into the Collateral Account. The Grantor hereby sells, conveys and
transfers to the Bank Collateral Agent and its successors and assigns, the
Initial Deposit and all proceeds thereof, and all other amounts deposited
into the Collateral Account pursuant hereto (all of the foregoing, subject
to the limitations set forth below, the "COLLATERAL ACCOUNT PROPERTY"), to
have and to hold all the aforesaid property, rights and privileges unto
the Bank Collateral Agent, its successors and assigns, in trust for the
uses and purposes and subject to the terms and provisions, set forth
herein. The Bank Collateral Agent by execution of this Agreement
acknowledges such transfer and accepts the trust thereunder and shall hold
and distribute the Collateral Account Property in accordance with the
terms and provisions of this Agreement.
(c) The Collateral Account shall constitute a trust account held by
the Bank Collateral Agent solely for the benefit of the Loan Agent and the
Banks, subject to the terms and conditions of this Agreement. Except as
set forth in Section 12 hereof, the Grantor shall have no legal,
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equitable or beneficial interest in the Collateral Account, which shall be
within the sole dominion and control of the Bank Collateral Agent for the
benefit of the Loan Agent and the Banks. The Collateral Account shall be
segregated on the books and records of the Bank Collateral Agent pursuant
to subsection (a) hereof, and, to the extent permitted under applicable
laws, the funds deposited therein shall not be subject to, and shall be
protected from, all claims, liens, and encumbrances of any creditors or
depositors of the Bank Collateral Agent (whether made directly or
indirectly through a liquidator or receiver of the Bank Collateral Agent).
With respect to the Collateral Account and the funds deposited therein,
the Loan Agent and the Banks shall be entitled to the priorities afforded
to the beneficiaries of such a trust account (in addition to the claim
against the estate of the Bank Collateral Agent) as provided by Section
92a(e) of Title 12 of the United States Code.
SECTION 3. DEPOSITS INTO THE COLLATERAL ACCOUNT. Such deposits shall be
made by wire transfer of immediately available funds in accordance with
instructions provided by the Bank Collateral Agent. The Bank Collateral Agent
shall accept the amounts deposited into the Collateral Account pursuant to
Section 5 hereof and hold, invest, release and distribute same in the manner
specified in Sections 4 and 5 hereof.
(a) Any Collateral Account Property that is held in deposit or trust
accounts shall be held solely in the name of the Bank Collateral Agent in
the Corporate Trust Office. Each such account and Collateral Account
Property shall be subject to the exclusive custody and control of the Bank
Collateral Agent, and the Bank Collateral Agent shall have sole signature
authority with respect thereto.
(b) Any Collateral Account Property that constitutes Physical
Property shall be delivered to the Bank Collateral Agent in accordance
with clauses (a) and (b) of the definition of "Delivery" and shall be
held, pending maturity or disposition, solely by the Bank Collateral Agent
or another Person referred to and holding in the manner described in
subclause (ii) or (iii) of such clause (b).
(c) Any Collateral Account Property that is a book entry financial
asset held through the Federal Reserve System pursuant to federal book
entry regulations shall be delivered in accordance with clause (c) of the
definition of "Delivery" and shall be maintained by the Bank Collateral
Agent, pending maturity or disposition, through continued book entry
registration of such Collateral Account Property as described in such
paragraph.
(d) Any Collateral Account Property that is an "uncertificated
security" under Chapter 8 of the UCC and that is not governed by
subsection (c) above shall be delivered to the Bank Collateral Agent in
accordance with clause (d) of the definition of "Delivery" and shall be
maintained by the Bank Collateral Agent, pending maturity or disposition,
through continued registration of the Bank Collateral Agent's (or its
nominee's) ownership of such security.
SECTION 4. INVESTMENT OF AMOUNTS ON DEPOSIT IN THE COLLATERAL ACCOUNT. The
amounts from time to time on deposit in the Collateral Account shall be invested
in "PERMITTED INVESTMENTS" consisting of investments made on the basis of daily
cash sweeps in short-term investment funds utilized by the Bank Collateral Agent
for such cash sweeps which invest solely in marketable direct obligations
issued, or unconditionally guaranteed with respect to principal and interest by
the United States of
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America or issued by any agency or instrumentality thereof and backed by the
full faith and credit of the United States of America or in other investments as
may be permitted by the Majority Banks, in each case maturing (or payable on
demand) no later than the Distribution Date next succeeding the date of
investment. All investment earnings on amounts held in the Collateral Account
shall be credited to the Collateral Account and the Grantor shall have no
direction or control over such investment earnings. No Permitted Investment may
be disposed of prior to its maturity or required redemption. All Permitted
Investments made with amounts held in the Collateral Account shall be made in
the name of the Bank Collateral Agent and held in the Collateral Account.
Notwithstanding the foregoing, the Collateral Account may contain at
any time uninvested cash in an amount not to exceed the maximum amount insured
by the FDIC without giving rise to any obligation to withdraw such cash from the
Collateral Account. Realized losses, if any, on investment of the Collateral
Account Property shall be charged first against undistributed investment
earnings attributable to the Collateral Account Property and then against the
Collateral Account Property.
SECTION 5. DEPOSITS, DISTRIBUTIONS AND WITHDRAWALS FROM THE COLLATERAL
ACCOUNT.
(a) Pursuant to Section 5.02 of the Servicing Agreement, the
Servicer shall remit within ten Business Days after each Determination
Date to the Collateral Account all payments made by or on behalf of
Obligors (other than in respect of Purchased Receivables) and all
Liquidation Proceeds; PROVIDED that the Servicer may withhold from such
amounts (i) the Servicing Fee and (ii) amounts reimbursable to it under
the Servicing Agreement.
(b) Pursuant to Section 5.04 of the Servicing Agreement and Section
6.02 of the Purchase Agreement, the Servicer, the Grantor or First
Investors, as the case may be, shall remit or cause to be remitted to the
Collateral Account the aggregate Purchase Amount with respect to any
Purchased Receivables on the Business Day immediately following the
purchase of the Purchased Receivable.
(c) The Servicer may, at any time, withhold from the amounts to be
deposited under subsection (a) hereof, or direct the Bank Collateral Agent
to transfer to it, (i) amounts deposited to the Collateral Account in
error and (ii) chargebacks attributable to errors in posting, returned
checks or rights of offset for amounts that should not have been paid or
that must be refunded as a result of a successful claim or defense under
bankruptcy or similar laws.
(d) (i)(A) On or before the eighth day of each calendar month, the
Loan Agent shall deliver to the Bank Collateral Agent a calculation, which
shall be conclusive absent manifest error, of the interest due and owing
on the outstanding Advances to each Bank, and (B) prior to each
Distribution Date, the Loan Agent shall deliver to the Bank Collateral
Agent a calculation, which shall be conclusive absent manifest error, of
any mandatory prepayments required pursuant to Section 3.06 of the Credit
Agreement or other amounts due and owing to the Loan Agent or the Banks
under the Credit Agreement or the other Loan Documents, as of the
applicable Distribution Date (such calculations being herein collectively
referred to as the "LOAN CALCULATION") and (ii) on or before the
thirteenth day of each calendar month the Grantor shall deliver to the
Bank Collateral Agent a copy of the Compliance Certificate required to be
delivered pursuant to Section 6.02(g) of the Credit Agreement.
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(e) On each Distribution Date, the Bank Collateral Agent (based on
the Loan Calculation and to the extent relevant, on the information
contained in the Servicer's Certificate and other reports delivered with
respect to the related Determination Date pursuant to Section 4.09 of the
Servicing Agreement) shall, subject to subsection (g) hereof, make the
following distributions from the Collateral Account in the following order
or priority:
(i) to the Servicer, (A) the Servicing Fee and all unpaid
Servicing Fees from prior Collection Periods, in either case to the
extent not retained by the Servicer pursuant to Section 5.02 of the
Servicing Agreement and (B) any amounts reimbursable to the Servicer
under the Servicing Agreement and not previously retained by the
Servicer pursuant to Section 5.02 of the Servicing Agreement;
(ii) to the Bank Collateral Agent, any amounts due and owing
to it as set forth in Section 19(c) hereof;
(iii) to the Loan Agent, any amounts due and owing to it as
set forth on the Loan Calculation;
(iv) PARI PASSU to (A) the Loan Agent for the account of each
Bank, the amounts due and owing to such Banks as set forth on the
Loan Calculation and (B) NationsBank, any amounts due and owing by
the Borrower pursuant to any interest rate swap, interest rate cap
or other exchange or rate protection agreement now existing or
hereafter entered into between the Borrower and NationsBank or any
Affiliate of NationsBank; and
(v) subject to Section 5(g) hereof, to the Grantor, the
remainder, if any; PROVIDED, HOWEVER, that amounts otherwise
distributable to the Grantor under this clause (v) shall instead be
retained in the Collateral Account if a Default or Event of Default
has occurred and is continuing.
(f) If the amount available to be distributed is less than the sum
of the Servicing Fee due on such Distribution Date, any accrued and unpaid
Servicing Fees from prior Collection Periods, any amounts reimbursable to
the Servicer under the Servicing Agreement, the amount required to be paid
to the Bank Collateral Agent as provided in subsection (e)(ii) above and
the amounts required to be paid to the Loan Agent and the Banks as
provided in subsections (e)(iii) and (iv) above, the Servicer, the Bank
Collateral Agent, the Loan Agent and the Banks shall be entitled to
receive distributions in respect of the applicable deficiency from amounts
retained on deposit in the Collateral Account in respect of the Specified
Collateral Account Balance. Distributions pursuant to this subsection (f)
shall be made in the same order of priority as distributions pursuant to
Section 5(e).
(g) On each Distribution Date, if the amount of the Collateral
Account (after giving effect to all payments to be made from such Account
pursuant to Section 5(e) on such Date) is less than the Specified
Collateral Account Balance for such Distribution Date, the Bank Collateral
Agent, after payment of any amounts required to be distributed to the Bank
Collateral Agent, the Loan Agent, the Banks and the Servicer pursuant to
Section 5(f), shall withhold from amounts otherwise distributable to the
Grantor and not otherwise distributed to the Bank Collateral Agent, the
Loan Agent, the Banks or the Servicer all such amounts, or such lesser
amounts as are
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sufficient to restore the amount in the Collateral Account to the
Specified Collateral Account Balance. If the amount of the Collateral
Account (after taking into account any withdrawals therefrom pursuant to
Section 5(f)) is greater than the Specified Collateral Account Balance for
such Distribution Date, the Bank Collateral Agent shall release and shall
distribute the amount of the excess to the Grantor; PROVIDED that amounts
otherwise distributable to the Grantor shall instead be retained in the
Collateral Account if a Default or Event of Default has occurred and is
continuing.
(h) On the last day of any Interest Period with respect to a LIBOR
Rate Advance or an Agreed Rate Advance and at the direction of the Loan
Agent, the Bank Collateral Agent shall distribute amounts due and owing to
the Banks in respect of interest on the Advances to the Loan Agent for
distribution to the Banks.
SECTION 6. PLEDGE AND GRANT OF SECURITY INTEREST. The Grantor hereby
pledges, transfers and assigns to the Bank Collateral Agent for the benefit of
the Loan Agent and the Banks, and grants to the Bank Collateral Agent for the
benefit of the Loan Agent and the Banks, a security interest in and to, and a
first priority lien upon, its property described in clauses (a)-(h) of this
Section 6 (the "COLLATERAL"), whether now owned or hereafter acquired,
(a) all accounts, chattel paper and instruments, including, without
limitation, the Receivables and all monies due thereon;
(b) the Liens and security interests in the Financed Vehicles and
any accessions thereto granted by Obligors pursuant to the Receivables;
(c) any proceeds from claims on, and rights under, any physical
damage, credit life, credit disability or other insurance policies
covering Financed Vehicles or Obligors;
(d) the Purchase Agreement, including the right of the Grantor to
cause First Investors to repurchase Receivables from the Grantor under
certain circumstances, and the Servicing Agreement;
(e) all proceeds from claims on, and rights under, the ALPI
Insurance, VSI Insurance and GAP Insurance related to the Receivables;
(f) certain rebates of premiums and other amounts relating to
insurance policies and other items financed under the Receivables;
(g) all right, title and interest of the Grantor, if any, in and to
the Collateral Account and the Escrow Account and in all funds deposited
in such accounts from time to time, and all investments and securities
held in such accounts in accordance with the provisions hereof and all
rights, entitlements and benefits thereto; and
(h) the proceeds, in cash or otherwise, of any or all of the
foregoing (including, without limitation, the proceeds of any sale or
other disposition of such Collateral and all insurance proceeds of any
kind paid at any time in connection with such Collateral), all Liens
(whether possessory, contractual, statutory or otherwise) with respect to
such Collateral, and all
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rights, remedies and claims (whether in the nature of indemnities,
warranties, guaranties or otherwise) of Grantor with respect to such
Collateral including without limitation, the right of Grantor to bring
suit to enforce its rights with respect to such Collateral, in any case
whether now existing or hereafter at any time or from time to time
arising.
The pledge of proceeds in this Agreement does not authorize the Grantor to sell,
dispose of or otherwise use the Collateral in any manner not specifically
authorized by this Agreement.
SECTION 7. SECURITY FOR OBLIGATION. This Agreement secures the prompt and
complete (a) payment of all obligations of Grantor to the Loan Agent and to any
or each Bank now or hereafter existing under this Agreement, the Notes, the
Credit Agreement and the other Loan Documents to which Grantor is a party, as
each may be modified, amended, extended or renewed from time to time; and (b)
performance and observance by Grantor of all covenants and conditions contained
in the Loan Documents to which it is a party, as each may be modified, amended,
extended or renewed from time to time (including, without limitation, the
covenants and conditions contained herein) (all such obligations, covenants and
conditions described in the foregoing clauses (a) and (b), whether for
principal, interest, fees, expenses or otherwise, being hereinafter collectively
referred to as the "OBLIGATIONS").
SECTION 8. GRANTOR REMAINS LIABLE. Anything herein to the contrary
notwithstanding, (a) Grantor shall remain liable under the contracts and
agreements included in the Collateral to the extent set forth therein to perform
all of its duties and obligations thereunder to the same extent as if this
Agreement had not been executed; (b) the exercise by the Bank Collateral Agent,
the Loan Agent or any Bank of any of the rights hereunder shall not release
Grantor from any of its duties or obligations under the contracts and agreements
included in the Collateral; and (c) the Bank Collateral Agent, the Loan Agent or
any Bank shall not have any obligation or liability under the contracts and
agreements included in the Collateral by reason of this Agreement, nor shall the
Bank Collateral Agent, the Loan Agent or any Bank be obligated to perform any of
the obligations or duties of Grantor thereunder or to take any action to collect
or enforce any claim for payment assigned hereunder.
SECTION 9. REPRESENTATIONS AND WARRANTIES OF GRANTOR. Grantor hereby
represents and warrants as follows:
(a) Not later than the Closing Date, Grantor shall deliver to the
Bank Collateral Agent a completed Perfection Certificate in the form
attached hereto as SCHEDULE I. The information set forth therein shall be
true and complete. If the Bank Collateral Agent is requested to do so by
the Loan Agent, Grantor shall reimburse the Bank Collateral Agent for the
cost and expense of obtaining file search reports from each filing office
in which financing statements should be filed to perfect the security
interest created hereby, evidencing such filing.
(b) The principal place of business and chief executive office of
the Grantor is located at its address shown on SCHEDULE I or at such other
location in any jurisdiction where all actions required by Section 13
shall have been taken.
(c) All records concerning Grantor's Receivables and all originals
of all chattel paper which evidence Receivables are in the possession of
the Servicer as set forth on SCHEDULE I, or are at such other location in
any jurisdiction where all actions required by Section 13 shall have been
taken.
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(d) Grantor owns the Collateral free and clear of any Lien, except
for Permitted Liens. Except with respect to Permitted Liens, no effective
financing statement or other instrument similar in effect covering all or
any part of the Collateral is or will be on file in any recording office,
except as may be filed in favor of the Bank Collateral Agent for the
benefit of the Loan Agent and the Banks relating to this Agreement.
(e) Other than the filings and other actions described herein to
perfect the security interests created by this Agreement, no
authorization, approval or other action by, and no notice to or filing
with, any Governmental Authority is required(i) for the due execution,
delivery and performance of this Agreement by Grantor, and the other
documents and instruments executed in connection herewith; (ii) for the
grant by Grantor of the security interests granted hereby; (iii) for the
perfection of the security interests granted hereby; or (iv) for the
exercise by the Bank Collateral Agent and the Loan Agent and the Banks of
their rights and remedies hereunder.
(f) This Agreement is, and all other documents and instruments
executed in connection therewith, when delivered will be legal, valid and
binding obligations of Grantor enforceable against Grantor in accordance
with their respective terms, except as enforceability may be (i) limited
by applicable bankruptcy, reorganization, insolvency, moratorium or other
similar laws of general application relating to the enforcement of
creditors' rights generally and (ii) subject to the general effect of
general principles of equity.
(g) None of the Obligors on any of Grantor's Receivables is a
Governmental Authority.
(h) Upon the making of all filings and the taking of all other
actions necessary to perfect the security interests created hereby,
including without limitation, those actions specified in Section 13 below,
this Agreement will create a valid first priority security interest in the
Collateral (subject only to Permitted Liens), securing the payment of the
Obligations.
(i) Neither Grantor nor its predecessors has performed any acts
which might prevent the Bank Collateral Agent, the Loan Agent or the Banks
from enforcing any of the terms of this Agreement or which would limit the
Loan Agent and the Banks in any such enforcement.
SECTION 10. COVENANTS: Grantor hereby covenants as follows:
(a) Grantor shall keep its principal place of business and chief
executive office and the offices where it keeps records concerning the
Receivables, and all originals of all chattel paper which evidence
Receivables, at the location or locations therefor specified in Section
9(b) or at such other locations in jurisdictions where all actions
required by Section 13 shall have been taken with respect to the
Receivables.
(b) Grantor, either directly or through an agent, including, without
limitation, the Servicer, shall, except as otherwise provided in this
subsection, continue to collect, at the Grantor's expense, all amounts due
or to become due to it under the Receivables. In connection with such
collections, Grantor may take or cause to be taken (and, at the Bank
Collateral Agent's direction, shall take or cause to be taken) such action
as Grantor or the Bank Collateral Agent or the Banks may deem necessary or
advisable to enforce collection of the Receivables. Upon the
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occurrence and during the continuance of an Event of Default, the Bank
Collateral Agent shall have the right to notify the Servicer and to direct
the Servicer to deliver all amounts due or to become due to Grantor under
the Receivables directly to the Bank Collateral Agent and, at the expense
of Grantor, to direct the Servicer to enforce collection of any such
Receivables, and to adjust, settle or compromise the amount or payment
thereof in the same manner and to the same extent as Grantor might have
done. After the occurrence and during the continuation of an Event of
Default, all amounts and proceeds (including instruments) received by or
for the account of Grantor in respect of the Receivables shall be received
in trust for the benefit of the Bank Collateral Agent hereunder, shall be
segregated from other funds of or for the account of Grantor and shall be
forthwith paid over to the Bank Collateral Agent in the same form as so
received (with any necessary endorsement) to be held as cash collateral
and applied as provided by Section 18.
(c) Grantor shall not sell, discount or otherwise transfer, whether
with or without recourse, any notes or Receivables, other than (i) in the
ordinary course of business for the collection of delinquent notes or
Receivables or (ii) to First Investors pursuant to and in compliance with
the provisions of Section 7.04 of the Credit Agreement.
(d) Grantor shall not change its name, identity or corporate
structure in any manner which might make any financing or continuation
statement filed hereunder seriously misleading within the meaning of
Section 9.402 of the UCC (or any other then applicable provision of the
UCC or any other provision of law in effect in any applicable
jurisdiction) unless Grantor shall have given the Bank Collateral Agent at
least thirty (30) days' prior written notice thereof and shall have taken
all action (or made arrangements to take such action substantially
simultaneously with such change if it is impossible to take such action in
advance) necessary or reasonably requested by the Bank Collateral Agent to
amend such financing statement or continuation statement so that it is not
seriously misleading.
(e) Except as may be permitted by the Credit Agreement, Grantor
shall not sell, assign or otherwise dispose of any of the Collateral, or
create or suffer to exist any Lien upon or with respect to any of the
Collateral.
(f) Subject to the provisions of the Servicing Agreement, the
Grantor agrees to clearly and unambiguously xxxx its general ledger and
all accounting records and documents and all computer tapes and records to
show that the Receivables have been pledged to the Bank Collateral Agent
hereunder. In connection with the grant of the security interest pursuant
to Section 6, the Grantor agrees to direct the Servicer to indicate, on or
prior to the Closing Date, clearly and unambiguously in the Servicer's
computer files, and in any of the Grantor's files in possession of the
Servicer, that the Receivables have been pledged to the Bank Collateral
Agent pursuant to this Agreement. The Grantor agrees to direct the
Servicer, by the end of each Collection Period to indicate clearly and
unambiguously in its computer files that such Receivables have been
pledged to the Bank Collateral Agent pursuant to this Agreement.
SECTION 11. LIMITATIONS ON REMEDIES. The Bank Collateral Agent shall have
no rights hereunder to, and shall not, make any cash payments or other transfer
to or on behalf of the Grantor, the Loan Agent, the Banks or any other Person
except as specifically set forth herein.
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SECTION 12. THE GRANTOR TO BE OWNER OF COLLATERAL FOR TAX PURPOSES. The
Grantor shall be the owner of the Collateral Account for federal income tax
purposes and all state and local income tax purposes, and, for such purposes,
all income resulting from such ownership shall be for the account of the
Grantor. The Grantor shall be solely responsible for preparing and filing all
federal, state and local income tax returns relating to the ownership of the
Collateral.
SECTION 13. CONTINUATION STATEMENTS; FURTHER ASSURANCES. The Grantor
authorizes the Bank Collateral Agent to file financing statements (including
without limitation, Form UCC-1 or Form UCC-3, as the case may be) and such other
security documents to be executed by Grantor in such offices and locations as
are necessary in the opinion of the Bank Collateral Agent to perfect the
security interests granted herein. The Bank Collateral Agent is authorized to
and shall file or cause to be filed all necessary continuation statements for
any financing statements relating to the Collateral that were filed on or prior
to the Closing Date. The Grantor shall execute any such continuation statements.
The Bank Collateral Agent shall cause the Grantor to take, and the Grantor shall
take, at the expense of the Grantor, at any time and from time to time, any
additional action required by the Bank Collateral Agent or by the Majority Banks
in order to perfect, preserve and protect the first priority security interest
granted or purported to be granted hereby. Any such requirement shall be
evidenced by written direction of the Bank Collateral Agent or the Majority
Banks (as the case may be) delivered to the Grantor. Without limiting the
generality of the foregoing, the Grantor shall execute and file such financing
statements, or amendments thereto, continuation statements, and such other
instruments, documents or notices, as may be necessary in order to perfect,
preserve and protect the first priority security interest granted or purported
to be granted hereby.
SECTION 14. APPOINTMENT OF BANK COLLATERAL AGENT. Each of the Loan Agent
and the Banks hereby appoints the Bank Collateral Agent to act as its paying
agent and collateral agent hereunder, and the Grantor hereby appoints the Bank
Collateral Agent to act as its paying agent hereunder. The Bank Collateral Agent
hereby accepts its duties as paying agent and collateral agent hereunder for the
Loan Agent, the Banks and the Grantor.
SECTION 15. BANK COLLATERAL AGENT APPOINTED ATTORNEY-IN-FACT. Grantor
hereby irrevocably appoints the Bank Collateral Agent Grantor's
attorney-in-fact, effective upon and during the continuance of an Event of
Default, with full authority in the place and stead of Grantor and in the name
of Grantor, the Bank Collateral Agent or otherwise, from time to time in the
Bank Collateral Agent's discretion, to take any action and to execute any
instrument, or to cause the Servicer to take any action or execute any
instrument, which the Bank Collateral Agent, the Loan Agent or the Majority
Banks may deem necessary or advisable to accomplish the purposes of this
Agreement, including without limitation:
(a) to ask, demand, collect, xxx for, recover, compound, receive and
give acquittance and receipts for amounts due and to become due under or
in respect of any of the Collateral,
(b) to receive, endorse and collect any drafts or other instruments,
documents and chattel paper in connection with clause (a) above, and
(c) to file any claims or take any action or institute any
proceedings which the Bank Collateral Agent, the Loan Agent or the
Majority Banks may deem necessary or desirable for the collection of any
of the Collateral or otherwise to enforce the rights of the Loan Agent,
the Banks and the Bank Collateral Agent with respect to any of the
Collateral.
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SECTION 16. BANK COLLATERAL AGENT MAY PERFORM. If Grantor fails to perform
any agreement contained herein, the Bank Collateral Agent may itself perform, or
cause performance of, such agreement, and the reasonable expenses of the Bank
Collateral Agent incurred in connection therewith shall be payable by Grantor as
set forth in Section 19.
SECTION 17. THE BANK COLLATERAL AGENT'S DUTIES. The powers conferred on
the Loan Agent and the Banks hereunder are solely to protect their interest in
the Collateral and shall not impose any duty upon the Loan Agent or any Bank to
exercise any such powers. Except for the safe custody of any Collateral in its
possession and the accounting for amounts actually received by it hereunder,
neither the Bank Collateral Agent, the Loan Agent nor any Bank shall have any
duty as to any Collateral or as to the taking of any necessary steps to preserve
rights against prior parties or any other rights pertaining to any Collateral
The Bank Collateral Agent shall promptly deliver to the Loan Agent a copy of any
notice received by it from the Servicer or the Grantor under the Servicing
Agreement.
SECTION 18. REMEDIES.
(a) Upon the occurrence of a Default or an Event of Default, the
Loan Agent shall send notice of such Default or Event of Default to the
Bank Collateral Agent and to the Grantor. The Bank Collateral Agent, or
the Servicer on behalf of the Bank Collateral Agent, may exercise in
respect of the Collateral and at the direction of the Loan Agent on behalf
of the Banks, in addition to other rights and remedies provided for herein
or otherwise available to it, all the rights and remedies of a secured
party on default under the UCC (whether or not the UCC applies to the
affected Collateral) and in addition thereto and cumulative thereof, the
following rights: the right to sell, lease or otherwise dispose of the
Collateral and the right to take possession of the Collateral, and for
that purpose, the Bank Collateral Agent or the Servicer may enter upon any
premises on which the Collateral may be situated and remove the same
therefrom and/or may render the Collateral inoperable; the Bank Collateral
Agent may require Grantor to, and Grantor hereby agrees that it will, at
its expense and upon the request of the Bank Collateral Agent, forthwith
assemble all or part of the Collateral and all documents relating to the
Collateral as directed by the Bank Collateral Agent and make the
Collateral available to the Bank Collateral Agent at a place to be
designated by the Bank Collateral Agent; without notice except as
specified below, sell the Collateral in one or more parcels at public or
private sale, at any of the Bank Collateral Agent's offices or elsewhere,
for cash, on credit or for future delivery, and upon such other terms as
the Bank Collateral Agent or the Servicer may deem commercially
reasonable. Grantor agrees that, to the extent notice of sale shall be
required by law, at least ten (10) days' notice to Grantor of the time and
place of any public sale or the time after which any private sale is to be
made shall constitute reasonable notification. The Bank Collateral Agent
shall not be obligated to make any sale of Collateral regardless of notice
of sale having been given. The Bank Collateral Agent or the Servicer may
adjourn any public or private sale from time to time by announcement at
the time and place fixed therefor, and such sale may, without further
notice, be made at the time and place to which it was so adjourned.
(b) All cash proceeds received by the Bank Collateral Agent in
respect of any sale of, collection from, or other realization upon all or
any part of the Collateral may (and shall at the direction of the Grantor)
be held by the Bank Collateral Agent as collateral for, and/or then or at
any time thereafter delivered to the Loan Agent to be applied in whole or
in part by the Loan Agent against, the Obligations and any amounts owing
to the Bank Collateral Agent in such order
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as the Loan Agent shall elect. Any surplus of such cash or cash proceeds
and interest accrued thereon, if any, held by the Bank Collateral Agent or
the Loan Agent and remaining after payment in full of all of the
Obligations shall be paid over to the Grantor or to whomsoever may be
lawfully entitled to receive such surplus; provided that the Bank
Collateral Agent and the Loan Agent shall have no obligation to invest or
otherwise pay interest on any amounts held by it in connection with or
pursuant to this Agreement.
(c) All rights and remedies of the Bank Collateral Agent, the Loan
Agent and the Banks expressed herein are in addition to all other rights
and remedies possessed by the Bank Collateral Agent, the Loan Agent and
the Banks in the Credit Agreement, the Notes, the other Loan Documents and
any other agreement or instrument relating to the Obligations.
SECTION 19. CERTAIN MATTERS REGARDING THE BANK COLLATERAL AGENT.
(a) The Bank Collateral Agent shall examine any directions, notices
or other communications received from the Grantor, any Bank or the Loan
Agent to determine if such directions, notices or other communications
appear on their face to have been made in accordance with, and to
substantially conform otherwise to, the requirements of this Agreement. As
long as the Bank Collateral Agent has acted in good faith and has not been
negligent in making the determinations required by this subsection, the
Bank Collateral Agent may conclusively rely on any such directions,
notices or other communications and shall incur no liability hereunder for
complying with, or assuming the truth of the statements contained in, any
such direction, notice or other communication. The Bank Collateral Agent
shall be obligated only for the performance of such duties as are
specifically set forth in the Agreement and shall not be liable for any
action taken or omitted by it in good faith, believed by it to be
authorized hereby or for any action taken or omitted by it in accordance
with the advice of counsel.
(b) The Bank Collateral Agent in its individual or any other
capacity may become the owner or pledgee of the Notes with the same rights
it would have if it were not the Bank Collateral Agent.
(c) The Grantor covenants and agrees to pay, from its own funds, to
the Bank Collateral Agent, and the Bank Collateral Agent shall be entitled
to, compensation for all services rendered by it in the exercise and
performance of any of its duties hereunder in the form of a fee in the
amount of $5,000 per annum, payable monthly on each Distribution Date
during the terms of this Agreement, and the Grantor will pay (out of its
own funds) or reimburse the Bank Collateral Agent, to the extent requested
by the Bank Collateral Agent, as the case may be, for all reasonable
expenses, disbursements and advances incurred or made by the Bank
Collateral Agent in accordance with any of the provisions of this
Agreement, the reasonable compensation and the expenses and disbursements
of its counsel and of all persons not regularly in its employ, except any
such expense, disbursement or advance as may arise from its gross
negligence, willful misconduct or bad faith; PROVIDED that the Grantor's
obligations under this Section 19(c) may be satisfied by the making of
distributions to the Bank Collateral Agent under Section 5(e) hereof. The
Grantor also covenants and agrees to indemnify (out of its own funds) the
Bank Collateral Agent for, and to hold the Bank Collateral Agent harmless
against, any loss, liability or expense incurred without gross negligence,
willful misconduct or bad faith on the part of the Bank Collateral Agent,
arising out of or in connection with the acceptance or administration of
this
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Agreement, including the costs and expenses of defending itself against
any claim or liability in connection with the exercise or performance of
any of its duties hereunder. The covenants in this subsection (c) shall
survive the termination of this Agreement. TO THE EXTENT THE FOREGOING
INDEMNITY CONTEMPLATES INDEMNIFICATION OF THE BANK COLLATERAL AGENT FOR
ITS OWN NEGLIGENT ACTS OR OMISSIONS UNDER CERTAIN CIRCUMSTANCES, THAT IS
THE EXPRESS INTENT OF THE PARTIES;
(d) There shall at all times be a Bank Collateral Agent hereunder
which shall be either (i) Texas Commerce Bank National Association ("TEXAS
COMMERCE") or any other Person into which Texas Commerce is merged or
consolidated or to which substantially all of the properties and assets of
Texas Commerce are transferred as an entirety, provided that such other
Person has accepted appointment as Bank Collateral Agent under this
Agreement in accordance with subsection (f), and provided further, that
such entity is not an Affiliate of the Grantor, is authorized to exercise
corporate trust powers under the laws of the United States of America, any
State thereof or the District of Columbia and has all necessary trust
powers to perform its obligations hereunder, or (ii) a corporation or
banking association organized and doing business under the laws of the
United States of America, any State thereof or the District of Columbia,
authorized under such laws to exercise corporate trust powers, having a
combined capital and surplus of at least $100,000,000 and subject to
supervision or examination by Federal or State authority, provided,
however, that such institution is not an Affiliate of the Grantor and is
acceptable to the Loan Agent and the Banks, further provided that such
institution may be NationsBank of Texas, N.A. If the corporation or
banking association referred to in clause (ii) of the previous sentence
publishes reports of condition at least annually, pursuant to law or to
the requirements of said supervising or examining authority, then for the
purposes of this subsection, the combined capital and surplus of such
corporation or banking association shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Bank Collateral Agent shall cease to be
eligible in accordance with the provisions of this subsection, it shall
resign immediately in the manner and with the effect hereinafter specified
in this Section.
(e) The Bank Collateral Agent at any time may resign and be
discharged from the agency and trusts hereby created by giving written
notice thereof to the Grantor and the Loan Agent. Upon receiving such
notice of resignation, the Loan Agent on behalf of itself and the Banks
promptly shall appoint a successor Bank Collateral Agent reasonably
acceptable to the Majority Banks and, unless a Default or Event of Default
has occurred and is continuing to the Grantor by written instrument, in
duplicate, one copy of which instrument shall be delivered to the
resigning Bank Collateral Agent and one copy to the successor Bank
Collateral Agent. Photocopies of such instrument shall also be delivered
to the Grantor. If no successor Bank Collateral Agent shall have been so
appointed and have accepted appointment within 30 days after the giving of
such notice of resignation, the resigning Bank Collateral Agent may
petition any court of competent jurisdiction for the appointment of a
successor Bank Collateral Agent reasonably acceptable to the Loan Agent,
the Majority Banks and, unless a Default or Event of Default shall have
occurred and is continuing, the Grantor.
If at any time the Bank Collateral Agent shall cease to be
eligible in accordance with the provisions of subsection (d) and shall
fail to resign after written request therefor by the Loan Agent, or if at
any time the Bank Collateral Agent shall become incapable of acting, or
shall be adjudged bankrupt or insolvent, or a receiver of the Bank
Collateral Agent or of its property
-15-
shall be appointed, or any public officer shall take charge or control of
the Bank Collateral Agent or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, or if a Default or an Event
of Default shall have occurred and is continuing, then the Loan Agent may
remove the Bank Collateral Agent and appoint a successor Bank Collateral
Agent reasonably acceptable to the Loan Agent, the Majority Banks and,
unless a Default or Event of Default shall have occurred and is
continuing, the Grantor by written instrument, in duplicate, one copy of
which instrument shall be delivered to the Bank Collateral Agent so
removed and one copy to the successor Bank Collateral Agent. Photocopies
of such instrument shall also be delivered to the Grantor.
Both any resignation or removal of the Bank Collateral Agent
and the appointment of a successor pursuant to any of the provisions of
this Section shall become effective only upon acceptance of appointment by
the successor as provided in subsection (f).
(f) Any successor Bank Collateral Agent appointed as provided in
subsection (e) shall execute, acknowledge and deliver to the Grantor, to
the Loan Agent and to its predecessor Bank Collateral Agent an instrument
accepting such appointment hereunder, and thereupon the resignation or
removal of the predecessor Bank Collateral Agent shall become effective
and such successor Bank Collateral Agent, without any further action, deed
or conveyance, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor hereunder, with the like effect
as if originally named as Bank Collateral Agent herein. The predecessor
Bank Collateral Agent shall transfer all amounts and Permitted Investments
in the Collateral Account to the successor Bank Collateral Agent for
deposit in the new Collateral Account and execute and deliver such
instruments, and take such other actions, as reasonably may be required
for more fully and certainly vesting and confirming in the successor Bank
Collateral Agent all such rights, powers, duties and obligations.
No successor Bank Collateral Agent shall accept appointment as
provided in this Section unless at the time of such acceptance such
successor Bank Collateral Agent shall be eligible under the provisions of
subsection (d).
Upon acceptance of appointment by a successor Bank Collateral
Agent as provided in this Section, the Loan Agent shall mail notice of the
succession of such Bank Collateral Agent hereunder to the Banks at their
addresses as shown in the Register and to the Grantor. If the Loan Agent
fails to mail such notice within 10 days after acceptance of appointment
by the successor Bank Collateral Agent, the successor Bank Collateral
Agent shall cause such notice to be mailed at the expense of the Loan
Agent.
(g) Any corporation into which the Bank Collateral Agent may be
merged or converted or with which it may be consolidated or any
corporation resulting from any merger, conversion or consolidation to
which the Bank Collateral Agent shall be a party, or any corporation
succeeding to the business of the Bank Collateral Agent, shall be the
successor of the Bank Collateral Agent hereunder, provided such
corporation shall be eligible under the provisions of subsection (d),
without the execution or filing of any paper or any further act on the
part of any of the parties hereto, anything herein to the contrary
notwithstanding.
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SECTION 20. REPRESENTATIONS AND WARRANTIES OF BANK COLLATERAL AGENT. The
Bank Collateral Agent shall make the following representations and warranties on
which the Loan Agent, the Banks and the Grantor may rely:
(a) The Bank Collateral Agent is a national banking association duly
organized, validly existing, and in good standing under the laws of the
United States of America;
(b) The Bank Collateral Agent has full corporate power, authority
and legal right to execute, deliver, and perform the Agreement, and shall
have taken all necessary action to authorize the execution, delivery, and
performance by it of the Agreement;
(c) The Agreement shall have been duly executed and delivered by the
Bank Collateral Agent; and
(d) The Agreement shall constitute a legal, valid and binding
obligation of the Bank Collateral Agent enforceable in accordance with its
terms subject as to the enforcement of remedies (i) to applicable
bankruptcy, insolvency, reorganization, moratorium and other similar laws
affecting creditors' rights generally and (ii) to general principles of
equity (regardless of whether the enforcement of such remedies is
considered in a proceeding in equity or at law).
SECTION 21. LIMITATION ON RIGHTS OF LOAN AGENT AND BANKS. The Loan Agent
and the Banks shall not have any rights by virtue of any provision of this
Agreement to institute any suit, action or proceeding in equity or at law upon
or under or with respect to this Agreement, unless such Loan Agent or Bank
previously shall have given to the Bank Collateral Agent a written notice of
default and of the continuance thereof, and unless also the Majority Banks shall
have made written request upon the Bank Collateral Agent to institute such
action, suit or proceeding in its own name as Bank Collateral Agent hereunder
and shall have offered to the Bank Collateral Agent such reasonable indemnity as
it may require against the costs, expenses and liabilities to be incurred
therein or thereby, and the Bank Collateral Agent, for thirty (30) days after
its receipt of such notice, request and offer of indemnity, shall have neglected
or refused to institute any such action, suit or proceeding, it being understood
and intended, and being covenanted expressly by each of the Loan Agent and the
Banks with each other and the Bank Collateral Agent, that no one or more of the
Loan Agent and the Banks shall have any right in any manner whatever by virtue
of any provision of this Agreement to affect, disturb or prejudice the rights of
any other of the Loan Agent and the Banks, or to obtain or seek to obtain
priority over or preference to any such other, or to enforce any right under
this Agreement. For the protection and enforcement of the provisions of this
Section, each of the Loan Agent, the Banks and the Bank Collateral Agent shall
be entitled to such relief as can be given either at law or in equity.
SECTION 22. AMENDMENT. No amendment or waiver of any provision of this
Agreement, nor consent to any departure herefrom, shall in any event be
effective unless the same shall be in writing and signed by the Majority Banks;
provided, however, that no such amendment shall (i) effectively reduce in any
manner the amount of, or delay the timing of, the amounts to be distributed to
the Loan Agent and the Banks; (ii) reduce the aforesaid percentage of Banks
which are required to consent to any such amendment; or (iii) reduce the
Specified Collateral Account Balance, without in each such case the consent of
all Banks.
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SECTION 23. SECURITY INTEREST ABSOLUTE. All rights of the Bank Collateral
Agent and the Loan Agent and the Banks, all obligations of Grantor hereunder and
the security interests hereunder, shall, to the extent permitted by applicable
law, be absolute and unconditional, irrespective of:
(a) any lack of validity or enforceability of the Credit Agreement,
the Notes or any of the other Loan Documents or any other agreement or
security document relating thereto or executed in connection with or
pursuant to any Loan Document;
(b) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Obligations or any other amendment or
waiver of or any consent to any departure from the Credit Agreement, the
Notes or any of the other Loan Documents or any other agreement or
security document relating thereto or executed in connection with or
pursuant to any Loan Document;
(c) any exchange, release or non-perfection of any other collateral,
or any release or amendment or waiver of or consent to departure from any
guaranty, for all or any of the Obligations; or
(d) any other circumstance which might otherwise constitute a
defense available to, or a discharge of, Grantor, or any other Person that
is a party to any Loan Document in respect of the Obligations.
SECTION 24. CONTINUING SECURITY INTEREST. This Agreement creates a
continuing security interest in the Collateral and shall (a) remain in full
force and effect until the termination of the obligations of the Banks to make
Loans under the Credit Agreement and the payment in full of the Obligations; (b)
be binding upon Grantor, its successors and assigns, provided that Grantor may
not assign any of its rights or obligations under this Agreement without the
prior written consent of the Banks; and (c) inure to the benefit of and be
enforceable by the Bank Collateral Agent, the Loan Agent and the Banks and their
respective successors, transferees and assigns. Without limiting the generality
of the foregoing clause (c), the Loan Agent and the Banks may assign or
otherwise transfer any of their respective rights under this Agreement to any
other Person in accordance with the terms and provisions of Section 10.07 of the
Credit Agreement, and to the extent of such assignment or transfer such Person
shall thereupon become vested with all the benefits in respect thereof granted
herein or otherwise to the Loan Agent or the Banks, as the case may be. Upon the
termination of the obligations of the Banks to make Loans under the Credit
Agreement and payment in full of the Obligations and all amounts owing to the
Bank Collateral Agent, Grantor shall be entitled to the return, upon its request
and at its expense, of such of the Collateral as shall not have been sold or
otherwise applied pursuant to the terms hereof. At any time and from time to
time prior to such termination of the security interests, the Bank Collateral
Agent may release any of the Collateral with the prior written consent of the
Loan Agent and the Banks or as may be required hereby or by the Credit
Agreement. Upon any such termination of the security interests or release of
Collateral, the Bank Collateral Agent will, at the expense of Grantor, execute
and deliver to Grantor such documents as Grantor shall reasonably request to
evidence the termination of the security interests or the release of such
Collateral, as the case may be. To the extent that the Bank Collateral Agent,
the Loan Agent or any Bank receives any payment on account of the Obligations,
or any proceeds of Collateral are applied on account of the Obligations, and any
such payment or proceeds or any part thereof are subsequently invalidated,
declared to be fraudulent or preferential, set aside, subordinated, required to
be repaid to a trustee, receiver or any other person or entity under any
-18-
bankruptcy act, state or federal law, common law or equitable cause, or
recovered from the Bank Collateral Agent, the Loan Agent or any Bank for any
other reason, then, to the extent of such payment or proceeds received, the
Obligations or part thereof intended to be satisfied shall be revived and
continue in full force and effect, as if such payment or proceeds had not been
received by the Bank Collateral Agent, the Loan Agent or any Bank and applied on
account of the Obligations, and the security interests shall continue to secure
such Obligations, and all rights of Grantor in the Collateral shall be subject
to such security interests.
SECTION 25. WAIVER OF MARSHALLING. All rights of marshalling of assets of
Grantor, including any such right with respect to the Collateral, are hereby
waived by Grantor.
SECTION 26. LIMITATION BY LAW. All rights, remedies and powers provided in
this Agreement may be exercised only to the extent that the exercise thereof
does not violate any applicable provision of law, and all the provisions of this
Agreement are intended to be subject to all applicable mandatory provisions of
law which may be controlling and to be limited to the extent necessary so that
they will not render this Agreement invalid, unenforceable, in whole or in part,
or not entitled to be recorded, registered or filed under the provisions of any
applicable law.
SECTION 27. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties contained in this Agreement or made in writing by
or on behalf of Grantor in connection herewith, shall survive the execution and
delivery of this Agreement until 365 or 366 days, as the case may be, after the
date on which the Commitment of the Banks to make Loans under the Credit
Agreement has been terminated and the Obligations have been paid in full. Any
investigation by any of the Loan Agent or the Banks shall not diminish in any
respect whatsoever their rights to rely on such representations and warranties.
SECTION 28. SEVERABILITY. The invalidity of any one or more covenants,
phrases, clauses, sentences or paragraphs of this Agreement shall not affect the
remaining portions of this Agreement, or any part thereof, and in case of any
such invalidity, this Agreement shall be construed as if such invalid covenants,
phrases, clauses, sentences or paragraphs had not been inserted.
SECTION 29. CAPTIONS. The captions this Agreement have been inserted for
convenience only and shall be given no substantive meaning or significance
whatever in construing the terms and provisions of this Agreement.
SECTION 30. NO WAIVER; CUMULATIVE REMEDIES. No failure on the part of the
Bank Collateral Agent, the Loan Agent or any Bank to exercise, and no delay in
exercising, any right hereunder shall operate as a waiver thereof; nor shall any
single or partial exercise of any such right preclude any other or further
exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
SECTION 31. EXECUTION IN COUNTERPARTS. This 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 taken together shall constitute one and the same agreement.
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SECTION 32. GOVERNING LAW; SUBMISSION TO JURISDICTION. (A) THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF TEXAS.
(B) THE GRANTOR IRREVOCABLY AND UNCONDITIONALLY:
(I) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR FOR
RECOGNITION AND ENFORCEMENT OF ANY JUDGMENT IN RESPECT THEREOF, TO THE
NON-EXCLUSIVE GENERAL JURISDICTION OF THE COURTS OF THE STATE OF TEXAS,
THE COURTS OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF
TEXAS, AND APPELLATE COURTS FROM ANY THEREOF;
(II) WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE
VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH
PROCEEDING WAS BROUGHT IN AN INCONVENIENT COURT AND AGREES NOT TO PLEAD OR
CLAIM THE SAME;
(III) AGREES THAT SERVICE OF PROCESS IN ANY SUCH LEGAL ACTION OR
PROCEEDING MAY BE EFFECTED BY MAILING OF A COPY THEREOF (BY REGISTERED OR
CERTIFIED MAIL OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL POSTAGE PREPAID)
TO THE GRANTOR AT 000 XXXXXX, XXXXX 000, XXXXXXX, XXXXX 00000, OR AT SUCH
OTHER ADDRESS OF WHICH THE BANK COLLATERAL AGENT SHALL HAVE BEEN NOTIFIED
IN WRITING PURSUANT TO SECTION 34.
(IV) NOTWITHSTANDING THE FOREGOING, NOTHING HEREIN SHALL IN ANYWAY
AFFECT THE RIGHT OF THE BANK COLLATERAL AGENT, THE LOAN AGENT OR ANY BANK
OR THE GRANTOR TO BRING ANY ACTION ARISING OUT OF OR RELATING TO THE NOTES
OR THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COMPETENT COURT
ELSEWHERE HAVING JURISDICTION OVER THE GRANTOR, THE BANK COLLATERAL AGENT,
THE LOAN AGENT OR ANY BANK, AS THE CASE MAY BE, OR ITS PROPERTY.
SECTION 33. WAIVER OF JURY TRIAL. EACH OF THE BANK COLLATERAL AGENT, THE
GRANTOR, THE LOAN AGENT AND THE BANKS HEREBY IRREVOCABLY WAIVES ANY AND ALL
RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 34. NOTICES. All directions, notices and communications hereunder
shall be in writing and shall be deemed to have been duly given if personally
delivered at, or, if a telecopy number is provided, telecopied (with
transmission confirmed by telephone) to, or mailed by first class or registered
mail, postage prepaid, to (i) in the case of the Grantor, 000 Xxxxxx, Xxxxx 000,
Xxxxxxx, Xxxxx 00000, Attention: President, Telephone: (000) 000-0000, Telecopy:
(000) 000-0000, (ii) in the case of the Bank Collateral Agent, 000 Xxxxxx, 0xx
Xxxxx, Xxxxxxx, Xxxxx 00000, Attention: Vice President, Global Trust
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Services - F.I.R.C., Telephone: (000) 000-0000 Telecopy: (000) 000-0000; (iii)
in the case of the Loan Agent, 000 Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxx 00000,
Attention: Senior Vice President, Corporate Banking Group, Telephone: (713)
000-0000, Telecopy: (000) 000-0000; and (iv) to any Bank, at the address set
forth under the heading "Domestic Lending Office" on the signature pages of the
Credit Agreement. Any such address or telephone or telecopy number may be
changed by the applicable Person by written notice to each other Person referred
to in clauses (i) through (iv).
SECTION 35. MERGER AND INTEGRATION OF DOCUMENTS. Except as specifically
stated otherwise herein, this Agreement and the other Loan Documents set forth
the entire understanding of the parties relating to the subject matter hereof,
and all prior understandings, written or oral, are superseded by this Agreement
and such Loan Documents. This Agreement may not be modified, amended, waived or
supplemented except as provided herein.
SECTION 36. NO INSOLVENCY PETITION AGAINST GRANTOR. The Bank Collateral
Agent hereby covenants and agrees that, prior to the date which is one year and
one day after the payment in full of the Obligations, it will not institute
against, or join any other Person in instituting against, the Grantor any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings,
or other proceedings under any federal or state bankruptcy or similar law. This
Section 36 shall survive the termination of this Agreement.
SECTION 37. BANK COLLATERAL AGENT AS PLEDGEE IN POSSESSION. Throughout the
term of this Agreement, the Bank Collateral Agent shall be a pledgee in
possession of the funds in the Collateral Account and shall have sole dominion
and control over the Collateral Account and the sole and exclusive right to
withdraw or transfer such funds in accordance with the express terms of this
Agreement, and the Grantor hereby appoints the Bank Collateral Agent to be the
true and lawful attorney of the Grantor for the purpose of making any such
withdrawal or transfer of such funds from the Collateral Account.
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IN WITNESS WHEREOF, the parties hereto, by their officers duly authorized,
have executed this Agreement as of the date first above written.
F.I.R.C., INC., a Delaware corporation
By: XXXXX X. XXXXX, XX.
Xxxxx X. Xxxxx, Xx.
President
TEXAS COMMERCE BANK NATIONAL
ASSOCIATION, as Bank Collateral Agent for the Loan
Agent and the Banks
By: XXXXXX XXXXXXX
Name:Xxxxxx Xxxxxxx
Title: Vice President and Trust Officer
NATIONSBANK OF TEXAS, N.A., as Loan Agent
and a Bank
By: XXXXX X. XXXXX
Name: Xxxxx X. Xxxxx
Title: Vice President
[Signature Page - Amended and Restated
Collateral Security Agreement - Page 1 of 1]
