EXHIBIT 10.81
THIRD AMENDED AND RESTATED
COLLATERAL SECURITY AGREEMENT
THIS THIRD 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 November 15, 2000, is made by F.I.R.C., Inc., a
Delaware corporation (the "GRANTOR"), with Wells Fargo Bank Minnesota, National
Association, a national banking association, as collateral and paying agent
(f/k/a Norwest Bank Minnesota, National Association, the "BANK COLLATERAL
AGENT"), for the ratable benefit of Bank of America, N.A. (successor in interest
to NationsBank, N.A., "BANK OF AMERICA"), 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 entered into that
certain Second Amended and Restated Credit Agreement dated as of November 15,
2000 (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; and
WHEREAS, the Grantor will acquire certain Receivables (as defined in the
Credit Agreement) with the Loans advanced under the Credit Agreement; and
WHEREAS, the Grantor previously entered into that certain Second Amended
and Restated Collateral Security Agreement, dated as of June 25, 1999 (the
"PRIOR SECURITY AGREEMENT"), granting to Wells Fargo Bank Minnesota, National
Association (f/k/a Norwest Bank Minnesota, National Association), for the
ratable benefit of the Loan Agent and the Banks, a security interest in, among
other things, the Receivables; and
WHEREAS, it is a condition precedent to the effectiveness of the Second
Amended and Restated 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 enter into the Second Amended and Restated Credit Agreement and 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.
"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.
"CUSTODIAN FILES" shall have the meaning specified in Section 17.
"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
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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 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.
"EFFECTIVE DATE" means the Initial Servicing Transfer Date as defined in
the Servicing 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 amount transferred into or currently in the
Collateral Account on the Effective 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.
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"OBLIGATIONS" has the meaning specified in Section 7.
"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 First Investors pursuant to the Purchase Agreement.
"RECEIVABLE PORTFOLIO BALANCE" has the meaning set forth in the Credit
Agreement.
"SERVICING FEE" has the meaning specified in Section 2.08 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).
"UCC" means the Uniform Commercial Code as in effect in any applicable
jurisdiction.
"WELLS FARGO" shall have the meaning specified in Section 19.
SECTION 2. ESTABLISHMENT AND MAINTENANCE OF COLLATERAL ACCOUNT.
(a) On or prior to the Effective Date, the Bank Collateral Agent
shall establish a separate trust account (the "COLLATERAL ACCOUNT") with
Wells Fargo'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 Wells Fargo 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, Wells Fargo, 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 Wells
Fargo. The Collateral Account shall be styled upon the fiduciary records
of Wells Fargo as "Wells Fargo Bank Minnesota, National Association, as
Bank Collateral Agent for Bank of America, N.A., as agent for the Banks,
under Second Amended and Restated Credit Agreement dated as of November
15, 2000, as the same may be amended."
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(b) On the Effective Date, the Grantor shall deposit or continue the
Initial Deposit into the Collateral Account. The Grantor hereby sells,
conveys and transfers to the Bank Collateral Agent and its successors and
assigns, in its capacity as agent, 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, 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).
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(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 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 3.02 of the Servicing Agreement, the
Servicer shall remit within one Business Day after receipt thereof to the
Collateral Account all payments made by or on behalf of Obligors (other
than in respect of Purchased Receivables) and all Liquidation Proceeds.
(b) Pursuant to 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.
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(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
SLoan 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) at least three
Business Days 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 fifteenth 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.
(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 reports delivered with respect to the related
Distribution Date pursuant to Section 2.02(c) 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 Bank Collateral Agent, any amounts due and owing to it
as set forth in Section 19(c) hereof and the Back-Up Servicing
Fee and conversion costs payable to the Bank Collateral Agent,
as the Back-Up Servicer, for periods that it serves in such
capacity, pursuant to Section 2.08(b) of the Servicing
Agreement;
ii. to the Servicer, (A) the Servicing Fee and all unpaid
Servicing Fees from prior Collection Periods and (B) any
amounts reimbursable to the Servicer under the Servicing
Agreement;
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) Bank of America, 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 Bank of America or any Affiliate of Bank of
America; and
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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 amounts required to be
paid to the Bank Collateral Agent as provided in subsection (e)(i) 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 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;
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(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 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
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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 Effective 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 1, or are at such other location in
any jurisdiction where all actions required by Section 13 shall have been
taken.
(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 and
except as may be on file naming the Prior Bank Collateral Agent as secured
party (such filed financing statements to be assigned to the Bank
Collateral Agent on the Effective Date).
(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.
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(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 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
-11-
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 mark 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 Effective 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.
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 Loan Agent to file financing statements (including without
limitation, Form UCC-1 or Form UCC-3,
-12-
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 Loan Agent
to perfect the security interests granted herein. The Loan 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 Effective Date. The Grantor shall execute any such continuation
statements. The Loan 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 Loan 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 Loan 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, sue 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.
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.
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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 and shall provide to the Loan Agent on a weekly basis a revised
cumulative exception report with respect to all of the Custodian Files
substantially in the form of Exhibit 1 hereto. For purposes of this provision,
the term "Custodian Files" shall have the meaning ascribed to it in 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 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 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 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 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
-14-
by the Loan Agent against, the Obligations and any amounts owing to the
Bank Collateral Agent in such order 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 an
amount determined in accordance with Schedule II hereto, 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
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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 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) Wells Fargo Bank Minnesota, National Association
("WELLS FARGO") or any other Person into which Wells Fargo is merged or
consolidated or to which substantially all of the properties and assets of
Wells Fargo 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 Bank of America, 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
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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 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,
or if the Borrower shall determine to remove the Bank Collateral Agent for
any purpose, subject to the consent of the Loan Agent, and the Bank
Collateral Agent shall fail to resign within 30 days after written request
therefor by the Borrower, 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
-17-
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.
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
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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.
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
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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 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.
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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.
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 NORTHERN 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 675 BERING, SUITE
710, HOUSTON, TEXAS 77057, OR AT SUCH OTHER ADDRESS OF
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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, 675 Bering, Suite 7
10, Houston, Texas 77057, Attention: President, Telephone: (713) 977-2600,
Telecopy: (713) 977-2630, (ii) in the case of the Bank Collateral Agent, Sixth
Street and Marquette Avenue, Minneapolis, Minnesota 55479-0070, Attention:
Corporate Trust Services, Telephone: (612) 667-3539, Telecopy: (612) 667-1117
[confirm]; (iii) in the case of the Loan Agent, 901 Main Street, 66th Floor,
Dallas, Texas 75201, Attention: Elizabeth Kurilecz, Telephone: (214) 209-0975,
Telecopy: (214) 508-0604 [CONFIRM]; 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.
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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: _____________________________________
Tommy A. Moore, Jr.
President
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WELLS FARGO BANK MINNESOTA,NATIONAL
ASSOCIATION, (f/k/a Norwest Bank
Minnesota, National Association) as
Bank Collateral Agent for the Loan
Agent and the Banks
By: _______________________________
Name: _____________________________
Title: ____________________________
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BANK OF AMERICA, N.A. (SUCCESSOR
IN INTEREST TO NATIONSBANK, N.A.),
as Loan Agent and a Bank
By: _______________________________
Name: _____________________________
Title: ____________________________
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SCHEDULE I
TO
THIRD AMENDED AND RESTATED
COLLATERAL SECURITY AGREEMENT
PERFECTION CERTIFICATE
The undersigned, the President of F.I.R.C., Inc., a Delaware corporation
(the "Grantor"), hereby certifies with reference to the Third Amended and
Restated Collateral Security Agreement (terms defined therein being used herein
as therein defined) dated as of November 15, 2000, between the Grantor and Wells
Fargo Bank Minnesota, National Association, as Bank Collateral Agent for the
benefit of Bank of America, N.A, as agent (in such capacity, the "Loan Agent")
and the financial institutions (the "Banks") now or hereafter a party to the
Credit Agreement, to the Bank Collateral Agent, the Loan Agent and the Banks as
follows:
1. NAMES. (a) The exact corporate name of the Grantor as it appears in its
certificate of incorporation is as follows:
F.I.R.C., INC.
(b) The following is a list of all other names (including trade names or
similar appellations) used by the Grantor or any of its predecessors, divisions
or other business units at any time during the past five years:
NONE
(c) Assumed names which are or may be used prospectively are:
NONE
2. CURRENT LOCATIONS. (a) The chief executive office of the Grantor is and
will be as of the Effective Date located at the following address:
MAILING ADDRESS STATE
--------------- -----
675 Bering Drive, Suite 710 Houston, Texas
(b) The following are all the locations where the Grantor or any of its
divisions or other business units maintains, or as of the Effective Date will
maintain, any books or records relating to any Receivables:
MAILING ADDRESS COUNTY/PARISH STATE
--------------- ------------- -----
675 Bering Drive, Suite 710 Harris County Houston, Texas
Locations of Servicer are listed under Servicing Agreement (as defined in
Credit Agreement).
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(c) The following are all the places of business of the Grantor not
identified above:
MAILING ADDRESS COUNTY/PARISH STATE
--------------- ------------- -----
NONE
3. PRIOR LOCATIONS. Set forth below is the information required by
subparagraphs (a), (b) and (c) of paragraph 2 with respect to each location or
place of business maintained by the Grantor or any of its predecessors,
divisions or other business units at any time during the past five years:
NAME OF ENTITY MAILING ADDRESS COUNTY/PARISH STATE
-------------- --------------- ------------- -----
NONE
4. UNUSUAL TRANSACTIONS. All Receivables have been acquired by First
Investors Financial Services, Inc. and sold to the Grantor pursuant to an
Amended and Restated Purchase Agreement dated as of October 30, 1996, as
amended.
IN WITNESS WHEREOF, we have hereunto set our hands this _____ day of
__________, 20____.
F.I.R.C., INC.
By: _______________________________
Name: _____________________________
Title: ____________________________
SI-2
SCHEDULE II
TO
THIRD AMENDED AND RESTATED
COLLATERAL SECURITY AGREEMENT
COLLATERAL AGENT FEE
SII-1