Exhibit 99.3
SECURITY AGREEMENT
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THIS AGREEMENT is made as of the 31st day of July, 2003, by FIRST ADVANTAGE
CORPORATION, doing business in Florida as FIRST ADVANTAGE HOLDING, INC. (the
"Borrower"), a Delaware corporation, whose address is 000 Xxxxxxxxx Xxxxxx
Xxxxx, Xxxxx 000, Xx. Xxxxxxxxxx, Xxxxxxx 00000, and BANK OF AMERICA, N.A. (the
"Bank"), whose address is 0000 Xxxxxxxxx Xxxx., Xxxxxxxx 000, Xxxxxxxxxxxx,
Xxxxxxx 00000.
Recitals
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The Borrower and the Bank have executed a Loan Agreement (as amended or
restated from time to time, the "Loan Agreement") of even date herewith. The
Borrower, pursuant to the Loan Agreement, has executed and delivered a
Promissory Note (as amended, extended or renewed from time to time, the "Note")
of even date herewith in the original principal amount of $15,000,000.00 in
favor of the Bank.
The Borrower has agreed to secure certain obligations in accordance with
the terms hereof.
Now therefore, for good and valuable consideration, the parties agree as
follows:
1. Defined Terms. Capitalized terms not otherwise defined that are defined
in the UCC shall have the meaning set forth therein. In addition to any other
terms defined elsewhere in this Agreement, the following terms shall have the
following meanings:
"Accounts" shall mean all accounts as that term is defined in the UCC
and all rights of the Borrower now existing and hereafter acquired to
payment for goods sold or leased or for services rendered that are not
evidenced by an Instrument or Chattel Paper, whether or not earned by
performance, together with (i) all security interests or other security
held by or granted to the Borrower to secure such rights to payment, (ii)
all other rights related thereto (including rights of stoppage in transit)
and (iii) all rights in any of such sold or leased goods that are returned
or repossessed.
"Chattel Paper" shall mean all chattel paper as that term is defined
in the UCC and any document or documents that evidence both a monetary
obligation and a security interest in, or a lease or consignment of,
specific goods (except, however, that when a transaction is evidenced both
by a security agreement or a lease and by an Instrument or series of
Instruments, the group of documents taken together constitute Chattel
Paper).
"Collateral" shall mean all of the following assets (whether now owned
or existing or hereafter acquired or arising): (a) all of the Borrower's
Accounts, together with all Chattel Paper, Contract Rights, Deposit
Accounts, Documents, General Intangibles and Instruments related to the
Borrower's Account; (b) all of the Borrower's books and records (in
whatever form or medium), customer lists, credit files, computer files,
programs, printouts, source codes, software and other computer materials
and records related to the Borrower's Account; and (c) all Proceeds
(including, without limitation, all proceeds as that term is defined in the
UCC), insurance proceeds, unearned
premiums, tax refunds, rents, profits and products related to the
Borrower's Accounts. The Collateral shall exclude, however, any
intellectual property that is expressly prohibited by its terms from being
pledged as security or that terminates upon being pledged (but only to the
extent of and until the termination of such prohibition or until such
property is no longer subject to termination).
"Contract Rights" shall mean any right to payment under a contract not
yet earned by performance and not evidenced by an Instrument or Chattel
Paper.
"Documents" shall mean all documents as that term is defined in the
UCC, related to the Collateral, together with any other document that in
the regular course of business or financing is treated as adequately
evidencing that the person or entity in possession of it is entitled to
receive, hold and dispose of such document and the goods it covers.
"General Intangibles" shall mean all general intangibles as that term
is defined in the UCC and all payment intangibles and all intangible
personal property of every kind and nature other than Accounts (including,
without limitation, all Contract Rights, other rights to receive payments
of money).
"Instruments" shall mean all negotiable instruments (as that term is
defined in the UCC), and any replacements therefore and other writings that
evidence rights to the payment of money (whether absolute or contingent)
and that are not themselves security agreements or leases and are of a type
that in the ordinary course of business are transferred by delivery with
any necessary endorsement or assignment (including, without limitation, all
checks, drafts, notes, bonds, debentures, government securities,
certificates of deposit, letters of credit, preferred and common stocks,
options and warrants).
"Proceeds" shall mean all proceeds (as that term is defined in the
UCC) and any and all amounts or items of property received when any
Collateral or proceeds thereof are sold, exchanged, collected or otherwise
disposed of, both cash and non-cash, including proceeds of insurance,
indemnity, warranty or guarantee paid or payable on or in connection with
any Collateral.
"UCC" shall mean the Uniform Commercial Code as in effect in any
applicable jurisdiction.
2. Security Interest. The Borrower hereby gives the Bank a continuing and
unconditional security interest (the "Security Interest") in the Collateral.
3. Obligations Secured. The Security Interest secures payment when due of
all Secured Obligations (as defined herein) to the Bank. As used in this
Agreement, the term "Secured Obligations" means: (a) all principal, interest,
costs, expenses and other amounts now or hereafter due under the Note
(including, without limitation, all principal amounts advanced thereunder
before, on or after the date hereof) and ; (b) all other amounts now or
hereafter payable by the Borrower under any of the Loan Documents (as such term
is defined in the Loan Agreement).
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4. Warranties of Borrower. The Borrower warrants and so long as this
Agreement continues in force shall be deemed continuously to warrant that:
(a) The Borrower is the owner of the Collateral free of all security
interests or other encumbrances, except for the Security Interest and
except for Permitted Liens (as defined in the Loan Agreement).
(b) The Borrower is authorized to enter into the Security Agreement.
(c) The Collateral is used or bought for use primarily in business or
professional operations.
(d) The Collateral is or will be located at the Borrower's address set
forth above.
(e) The chief executive office of the Borrower is at the address set
forth above.
(f) The exact legal name of the Borrower is set forth in the
introductory paragraph hereof, and the jurisdiction of organization or
incorporation of the Borrower is set forth in the introductory paragraph
hereof.
5. Covenants of Borrower. So long as this Agreement has not been terminated
as provided hereafter, the Borrower: (a) will defend the Collateral against the
claims of all other persons; (b) will keep the Collateral free from all security
interests or other encumbrances, except for the Security Interest and except for
Permitted Liens (as defined in the Loan Agreement); (c) except as permitted by
the Loan Agreement, will not assign, deliver, sell, transfer, lease or otherwise
dispose of any of the Collateral or any interest therein without the prior
written consent of the Bank, (d) will keep in accordance with generally accepted
accounting principles consistently applied, accurate and complete records with
respect to such Collateral and upon the Bank's request will xxxx any of such
records and all or any other Collateral to give notice of the Security Interest
and will permit the Bank or its agents to inspect the Collateral and to audit
and make abstracts of such records or any of the Borrower's books, ledgers,
reports, correspondence and other records (subject to the limitations set forth
in the Loan Agreement); (e) upon demand, will deliver to the Bank any Documents
and any Chattel Paper representing or relating to the Collateral or any part
thereof, or any dispositions of the Collateral and Proceeds thereof and any and
all other schedules, documents and statements that the Bank may from time to
time request; (f) will keep the Collateral at the Borrower's address set forth
above until the Bank is notified in writing of any change in its location, and
will not change the location of the Borrower's chief executive office without
prior written notice given to the Bank; (g) will notify the Bank promptly in
writing of any change in the Borrower's address, name, trade names or identity
from that specified above or of any change in the location of the Collateral;
(h) will not change its legal name or reincorporate or reorganize itself under
the laws of any other jurisdiction; (i) will permit the Bank or its agents to
inspect the Collateral (subject to any limitations set forth in the Loan
Agreement); (j) will not use the Collateral in violation of any provision of
this Agreement, any applicable statute, regulation or ordinance or any policy of
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insurance insuring the Collateral; (k) will execute and deliver to the Bank such
financing statements and other documents requested by the Bank, and take such
other action and provide such further assurances as the Bank may deem advisable
to evidence, perfect or enforce the Security Interest created by this Agreement;
and (l) will pay all taxes, assessments and other charges of every nature that
may be levied or assessed against the Collateral (unless the same are being
contested in good faith).
6. Verification. Subject to the limitations set forth in the Loan
Agreement, the Bank may verify any Collateral in any manner and through any
medium that the Bank may deem appropriate, and the Borrower shall furnish such
assistance as the Bank may reasonably require in connection therewith.
7. Default.
(a) Each of the following shall constitute an "Event of Default"
hereunder: (i) the occurrence of an Event of Default under the Loan
Agreement; (ii) failure by the Borrower to perform any material obligations
under this Agreement or under any other agreement for borrowed money
between the Borrower and the Bank or by the Borrower in favor of the Bank,
time being of the essence (subject, however, to any applicable notice and
cure periods); (iii) the commencement of any bankruptcy or insolvency
proceedings by or against the Borrower; (iv) material falsity in any
certificate, statement, representation, warranty or audit at any time
furnished by or on behalf of the Borrower or any endorser or guarantor or
any other party liable for payment of all or part of the Secured
Obligations, pursuant to or in connection with this Agreement, including
warranties in this Agreement and including any omission to disclose any
substantial contingent or liquidated liabilities or any material adverse
change in facts disclosed by any certificate, statement, representation,
warranty or audit furnished to the Bank; or (v) any attachment or levy
against the Collateral or any other occurrence that inhibits the Bank's
free access to the Collateral.
(b) Upon the occurrence of an Event of Default, the Bank may exercise
such remedies and rights as are available hereunder, under the Loan
Agreement or otherwise (including without limitation, acceleration of the
Secured Obligations or any part thereof). This paragraph is not intended to
affect or impair any rights of the Bank with respect to any Secured
Obligations that may now or hereafter be payable on demand.
(c) Upon the occurrence of any Event of Default, the Bank's rights
with respect to the Collateral shall be those of a secured party under the
UCC and any other applicable law in effect from time to time. The Bank
shall also have any additional rights granted herein and in any other
agreement now or hereafter in effect between the Borrower and the Bank. If
requested by the Bank after the occurrence of an Event of Default, the
Borrower will assemble all Documents, Instruments, Chattel Paper and any
other records relating to the Collateral and make it available to the Bank
at a place to be designated by the Bank.
(d) The Borrower agrees that any notice by the Bank of the sale or
disposition
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of the Collateral or any other intended action hereunder, whether required
by the UCC or otherwise, shall constitute reasonable notice to the Borrower
if the notice is mailed by regular or certified mail, postage prepaid, at
least five days before the action to the Borrower's address as specified in
this Agreement or to any other address that the Borrower has specified in
writing to the Bank as the address to which notices shall be given to the
Borrower.
(e) The Borrower shall pay all costs and expenses incurred by the Bank
in enforcing this Agreement, realizing upon any Collateral and collecting
any Secured Obligations (including attorneys' fees) whether suit is brought
or not and whether incurred in connection with collection, trial,
arbitration, appeal or otherwise and, to the extent of the Borrower's
liability for repayment of any of the Secured Obligations, shall be liable
for any deficiencies in the event the Proceeds of disposition of the
Collateral do not satisfy the Secured Obligations in full. Nothing
contained herein shall be deemed to require the Bank to proceed against the
Collateral or any part thereof before or as a condition to the pursuit of
any of its other rights and remedies with respect to the Secured
Obligations.
8. Miscellaneous.
(a) The Borrower authorizes the Bank to file financing statements and
continuation statements and amendments thereto with respect to the
Collateral without authentication by the Borrower to the extent permitted
by law. The Bank agrees to use reasonable efforts to provide the Borrower
with any copies of any such filings prior to filing. The Borrower agrees
not to file any financing statement, amendment or termination statement
with respect to the Collateral prior to the payment and satisfaction in
full of all Secured Obligations. Upon payment in full of all Secured
Obligations, the Bank shall promptly file appropriate documents releasing
all filings hereunder.
(b) The Borrower hereby irrevocably consents to any act by the Bank or
its agents in entering upon any premises for the purposes of either (i)
inspecting the Collateral or (ii) taking possession of the Collateral after
any Event of Default in any commercially reasonable manner. From and after
the occurrence of an Event of Default, the Borrower hereby waives its right
to assert against the Bank or its agents any claim based upon trespass or
any similar cause of action for entering upon any premises where the
Collateral may be located.
(c) The Borrower authorizes the Bank to collect and apply against the
Secured Obligations any refund of insurance premiums or any insurance
proceeds payable on account of the loss or damage to any of the Collateral
and appoints the Bank as the Borrower's attorney-in-fact to endorse any
check or draft representing such proceeds or refund.
(d) Upon the Borrower's failure to perform any of its duties
hereunder, the Bank may, but it shall not be obligated to, perform any of
the duties and the Borrower shall forthwith upon demand reimburse the Bank
for any expenses incurred by the Bank
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in so doing.
(e) No delay or omission by the Bank in exercising any right hereunder
or with respect to any Secured Obligations shall operate as a waiver of
that or any other right, and no single or partial exercise of any right
shall preclude the Bank from any other or further exercise of the right or
the exercise of any other right or remedy. The Bank may cure any Event of
Default by the Borrower in any reasonable manner without waiving the Event
of Default so cured and without waiving any other prior or subsequent Event
of Default by the Borrower. All rights and remedies of the Bank under this
Agreement and under the UCC shall be deemed cumulative.
(f) The Bank shall exercise reasonable care in the custody and
preservation of the Collateral to the extent required by law and it shall
be deemed to have exercised reasonable care if it takes such action for
that purpose as the Borrower shall reasonably request in writing. However,
no omission to comply with any requests by the Borrower shall of itself be
deemed a failure to exercise reasonable care. The Bank shall have no
obligation to take and the Borrower shall have the sole responsibility for
taking any steps to preserve rights against all prior parties to any
Instrument or Chattel Paper in the Bank's possession as Collateral or as
Proceeds of the Collateral. The Borrower waives notice of dishonor and
protest of any Instrument constituting Collateral at any time held by the
Bank on which the Borrower is in any way liable and waives notice of any
other action taken by the Bank.
(g) From and after the occurrence of any Event of Default, the Bank
may notify each Account Debtor of the Security Interest and may also direct
such Account Debtor to make all payments on the Collateral to the Bank. All
payments on and other Proceeds from the Collateral received by the Bank
directly or from the Borrower shall be applied to the Secured Obligations
in such order and manner and at such time as the Bank shall in its sole
discretion determine. Unless the Bank notifies the Borrower in writing that
it dispenses with one or more of the following requirements, any payments
on or other Proceeds of the Collateral received by the Borrower before or
after notification to any Account Debtor shall be held by the Borrower in
trust for the Bank in the same medium in which received, shall not be
commingled with any assets of the Borrower and shall be turned over to the
Bank not later than the next business day following the day of their
receipt. From and after the occurrence of an Event of Default, the Borrower
shall also promptly notify the Bank of the return to or repossession by the
Borrower of goods underlying any Collateral. For purposes hereof, an
"Account Debtor" shall mean any person or entity who is obligated to pay
the Borrower any amounts under any of the Collateral.
(h) The Borrower authorizes the Bank without affecting the Borrower's
obligations hereunder from time to time: (i) to take from any party and
hold collateral (other than the Collateral) for the payment of the Secured
Obligations or any part thereof, and to exchange, enforce or release such
collateral or any part thereof; (ii) to accept and hold the endorsement or
guaranty of payment of the Secured Obligations or any part thereof and to
release or substitute any such endorser or guarantor or any party who has
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given any security interest in any collateral as security for the payment
of the Secured Obligations or any part thereof or any party in any way
obligated to pay the Secured Obligations or any part thereof; and (iii)
upon the occurrence of any Event of Default to direct the manner of the
disposition of the Collateral and any other collateral and the enforcement
of any endorsements or guaranties relating to the Secured Obligations or
any part thereof as the Bank in its sole discretion may determine.
(i) The Bank may demand, collect and xxx for all Proceeds (either in
the Borrower's name or the Bank's name at the Bank's option), with the
right to enforce, compromise, settle or discharge any Proceeds. The
Borrower irrevocably appoints the Bank as the Borrower's attorney-in-fact
to endorse the Borrower's name on all checks, commercial paper and other
Instruments pertaining to the Proceeds before or after the occurrence of an
Event of Default.
(j) The rights and benefits of the Bank under this Agreement shall, if
the Bank agrees, inure to any party acquiring an interest in the Secured
Obligations or any part thereof.
(k) The terms "Bank" and "Borrower" as used in this Agreement include
the heirs, personal representatives and successors or assigns of those
parties.
(l) This Agreement may not be modified or amended nor shall any
provision of it be waived except in writing signed by the Borrower and by
an authorized officer of the Bank.
(m) This Agreement shall be governed and construed by Florida law and
any other applicable laws in effect from time to time.
(n) This Agreement is a continuing agreement that shall remain in
force until the last to occur of: (i) the payment in full of all Secured
Obligations if such payment of the Secured Obligations has become final and
is not subject to being refunded as a preference or fraudulent transfer
under the Bankruptcy Code or other applicable law; (ii) the termination of
all agreements or obligations (whether or not conditional) of the Bank to
extend credit to the Borrower; and (iii) the termination of the Loan
Agreement.
(o) When inspecting the Collateral, the Bank will comply with all
applicable privacy laws and with the provisions of any confidentiality
agreements between the Borrower and the Bank.
9. Arbitration. The Borrower and the Bank agree to the following
arbitration provisions:
(a) These arbitration provisions govern the resolution of any
controversies or claims between the Borrower and the Bank, whether arising
in contract, tort or by statute, including but not limited to controversies
or claims (collectively, a "Claim") that arise out of or relate to: (i)
this Security Agreement (including any renewals, restatements,
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extensions or modifications hereof); or (ii) any document related to this
Security Agreement.
(b) At the request of the Borrower or the Bank, any Claim shall be
resolved by binding arbitration in accordance with the Federal Arbitration
Act (Title 9, U. S. Code) (the "Act"). The Act will apply even though this
Security Agreement provides that it is governed by the law of a specified
state. Arbitration proceedings will be determined in accordance with the
Act, the rules and procedures for the arbitration of financial services
disputes of JAMS or any successor thereof ("JAMS"), and the terms of this
Section. In the event of any inconsistency, the terms of this Section shall
control. The arbitration shall be administered by JAMS and conducted in any
United States state where real or tangible personal property collateral for
this credit is located or if there is no such collateral, in Hillsborough
County, Florida. All Claims shall be determined by one arbitrator. However,
if Claims exceed $1,000,000, upon the request of any party, the Claims
shall be decided by three arbitrators. All arbitration hearings shall
commence within 90 days of the demand for arbitration and close within 90
days of commencement and the award of the arbitrator or arbitrators, as the
case may be, shall be issued within 30 days of the close of the hearing.
However, the arbitrator or arbitrators, as the case may be, upon a showing
of good cause, may extend the commencement of the hearing for up to an
additional 60 days. The arbitrator or arbitrators, as the case may be,
shall provide a concise written statement of reasons for the award. The
arbitration award may be submitted to any court having jurisdiction to be
confirmed and enforced.
(c) The arbitrator(s) will have the authority to decide whether any
Claim is barred by the statute of limitations and, if so, to dismiss the
arbitration on that basis. For purposes of the application of the statute
of limitations, the service on JAMS under applicable JAMS rules of a notice
of Claim is the equivalent of the filing of a lawsuit. Any dispute
concerning this arbitration provision or whether a Claim is arbitrable
shall be determined by the arbitrator(s). The arbitrator(s) shall have the
power to award legal fees pursuant to the terms of this Security Agreement.
(d) These arbitration provisions do not limit the right of the
Borrower or the Bank to: (i) exercise self-help remedies, such as but not
limited to, setoff; (ii) initiate judicial or nonjudicial foreclosure
against any real or personal property collateral; (iii) exercise any
judicial or power of sale rights, or (iv) act in a court of law to obtain
an interim remedy, such as but not limited to, injunctive relief, writ of
possession or appointment of a receiver, or additional or supplementary
remedies.
(e) By agreeing to binding arbitration, the Borrower and the Bank
irrevocably and voluntarily waive any right they may have to a trial by
jury in respect of any Claim. Furthermore, without intending in any way to
limit this agreement to arbitrate, to the extent any Claim is not
arbitrated, the parties irrevocably and voluntarily waive any right they
may have to a trial by jury in respect of such Claim. This provision is a
material inducement for each party's executing this Security Agreement. No
provision in this Security Agreement or in any document related hereto
regarding submission to jurisdiction or venue in any court is intended or
shall be construed to be in derogation of
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the provisions of this Security Agreement or in any such other document for
arbitration of any controversy or claim.
10. NOTICE OF FINAL AGREEMENT. THIS WRITTEN SECURITY AGREEMENT REPRESENTS
THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE
OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OR UNDERSTANDINGS OF
THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
11. Waiver. IF AN EVENT OF DEFAULT SHOULD OCCUR, THE BORROWER WAIVES ANY
RIGHT THE BORROWER MAY HAVE TO NOTICE AND A HEARING BEFORE THE BANK TAKES
POSSESSION OF THE COLLATERAL BY SELF-HELP, REPLEVIN, ATTACHMENT, SETOFF OR
OTHERWISE.
EXECUTED and delivered as of the day and year first above written.
FIRST ADVANTAGE CORPORATION, a Delaware
corporation doing business in Florida as
FIRST ADVANTAGE HOLDING, INC.
By: /s/ Xxxx Xxxxxx
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Its: EVP and CFO
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(SEAL)
BANK OF AMERICA, N.A.
By: /s/ Xxxxx Xxxxxxx
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Its: Senior Vice President
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