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EXHIBIT 10.8
SECURITY AGREEMENT
This Security Agreement (the "Agreement") is made as of December 20,
1996 by BILLING INFORMATION CONCEPTS, INC., a corporation organized under the
laws of the State of Delaware (together with its successors and assigns, the
"Grantor"), to THE FROST NATIONAL BANK, a national banking association ("Frost
Bank"), and its successors and assigns, as administrative and collateral agent
(the "Agent"), for the equal and ratable benefit of itself and the other banks
or financial institutions listed on the signature pages of, and any other bank
or financial institution that may hereafter become a party to, the hereinafter
described Credit Agreement (together with the Agent hereinafter collectively
referred to as the "Banks").
PRELIMINARY STATEMENTS. Frost Bank, individually, as the Issuing Bank
and the Agent, and the other Banks have entered into a Credit Agreement dated
as of December 20, 1996 (as it may hereafter be amended or otherwise modified
from time to time, the "Credit Agreement"), with the Grantor, as borrower, and
BILLING INFORMATION CONCEPTS CORP., a corporation organized under the laws of
the State of Delaware, ("Parent Company"). It is a condition precedent to the
obligation of the Banks to make the Loans and issue the Letters of Credit
described in the Credit Agreement that the Grantor shall have executed and
delivered this Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants contained herein and for other good and valuable consideration, the
adequacy, receipt and sufficiency of which are hereby acknowledged, and in
order to induce the Banks to make the Loans and issue Letters of Credit under
the Credit Agreement, the Grantor hereby agrees as follows:
SECTION 1. Defined Terms and Related Matters.
(a) Unless otherwise defined herein, the capitalized terms
used herein which are defined in the Credit Agreement shall have the
meanings specified therein.
(b) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement
as a whole and not to any particular provision of this Agreement.
(c) Unless otherwise defined herein or in the Credit
Agreement, the terms defined in the Uniform Commercial Code as enacted
in the State of Texas, as amended from time to time (the "UCC") are used
herein as therein defined.
(d) All accounting terms are not specifically defined herein
shall be construed in accordance with generally accepted accounting
principles consistent with those applied in preparation of the financial
statements referred to in Section 5.1 of the Credit Agreement.
SECTION 2. Grant of Security. The Grantor hereby collaterally
assigns and pledges to the Agent, for the equal and ratable benefit of the
Banks and hereby grants to the Agent, for the equal and ratable benefit of the
Banks, a security interest
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in and a lien on, all of the Grantor's right, title and interest in and to its
property described in subsections (a) through (f) of this Section 2 (the
"Collateral"), whether now owned or hereafter acquired by the Grantor:
(a) All presently existing or hereafter acquired or created
accounts, accounts receivable, contract rights, notes, drafts,
acceptances, chattel paper, leases and writings evidencing a monetary
obligation or a security interest in or a lease of goods, all rights to
receive the payment of money or other considerations under present or
future contracts or by virtue of merchandise sold or leased, services
rendered, loans and advances made or other considerations given, whether
or not earned by performance and whether or not evidenced by or set
forth in or arising out of any present or future chattel paper, note,
draft, lease, acceptance, writing, bond, insurance policy, instrument,
document or general intangible, and all extensions and renewals of any
thereof, all rights under or arising out of present or future contracts,
agreements or general intangibles, including all payments under
licensing agreements or arrangements, all right, title and interest in
merchandise which gave rise to any or all of the foregoing, including
all goods, all claims or causes of action now existing or hereafter
arising in connection with or under any agreement or document or by
operation of law or otherwise, all collateral security of any kind
(including real property mortgages) given by any person with respect to
any of the foregoing, including in any event, all accounts, instruments
and chattel paper within the meaning of the UCC; the foregoing shall
include, without limitation, (i) the promissory notes and security
interests evidencing and/or securing the payment of loans or advances
from any Company to any other Company described in Schedule I attached
hereto and (ii) all accounts receivable, contract rights, security
interests, rights and remedies of Grantor, whether now existing or
hereafter acquired or created, under (x) any Advanced Purchase
Agreement, whether now existing or hereafter entered into by Grantor and
(y) all agreements between Grantor and any LEC or any Affiliate of any
LEC, whether now existing or hereafter entered into (any and all of the
foregoing being the "Accounts, Instruments and Chattel Paper");
(b) All general intangibles of every nature, whether presently
existing or hereafter acquired or created, including without limitation,
all books, correspondence, credit files, records, computer programs,
computer tapes, cards, and other papers and documents in the possession
or control of the Grantor, claims (including, without limitation all
claims for income tax and other refunds), chooses in action, judgments,
licensing agreements, royalty payments, goodwill, all amounts received
as an award in or settlement of a suit in damages, deposit accounts,
interests in joint ventures or general or limited partnerships and in
any event, all general intangibles within the meaning of the UCC (any
and all of the foregoing being the "General Intangibles");
(c) All rights now owned or hereafter acquired or created, to
payment under a contract not yet earned by performance and not yet
evidenced by an Account, Instrument or Chattel Paper ("Contract Rights"
and together with Accounts, Instruments, Chattel Paper and General
Intangibles herein collectively called "Receivables");
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(d) All documents, instruments and chattel paper of every
nature, whether now existing or hereafter acquired or created, and in
any event all documents within the meaning of the UCC ("Documents");
(e) (i) any and all rights of the Grantor against any of the
Companies arising out of any agreement between the Grantor and any of
the Companies or by operation of law or otherwise; (ii) all contracts,
Instruments, undertakings, Documents or other agreements in which the
Grantor may now or hereafter have any right, title or interest and which
pertain to the sale or other disposition by the Grantor of any Accounts,
or any other interest in Collateral, as any of the same may from time to
time be amended, modified, supplemented, increased and/or restated;
together with all rights of the Grantor to receive moneys or other
consideration due and to become due to the Grantor arising with respect
to the contract described in items (i) through (ii) above or in
connection with such contracts, all rights in and to any claims and/or
indemnification in favor of the Grantor, all rights of action for
damages arising out of or for breach or default in respect thereof, and
all rights of the Grantor to perform and exercise all rights thereunder
(any and all of the foregoing being the "Contracts"); and
(f) The proceeds, in cash or otherwise, of the Collateral
described in the foregoing clauses (a) and (e)(including, without
limitation, (i) the proceeds of any sale or other disposition of such
Collateral; (ii) all insurance proceeds of any kind [whether or not the
Agent is the loss payee under the applicable insurance policy] paid at
any time in connection with such Collateral; and (iii) 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 the
Grantor with respect to such Collateral, in any case whether now
existing or hereafter at any time or from time to time arising.
The inclusion of proceeds in this Agreement does not authorize the
Grantor to sell, dispose of or otherwise use the Collateral in any manner to
the extent otherwise prohibited hereby or by the other Loan Documents.
SECTION 3. Security for Obligations. This Agreement secures the
prompt and complete (a) payment and performance of all obligations, covenants
and conditions of Grantor under the Credit Agreement, the Notes, the Security
Documents and the other Loan Documents to which it is a party, whether such
obligations, covenants and conditions are now existing or hereafter arising,
and all renewals, extensions, amendments, supplements and rearrangements
thereof, and (b) payment and performance of all obligations, covenants and
conditions required to be paid or performed by any other Loan Party under the
other Loan Documents; in each case whether for principal, interest, prepayment
premium, taxes, losses, compensation, reimbursements, fees, expenses or any
other amount payable to the Banks and the Agent under the Credit Agreement or
any other Loan Document (all such obligations, covenants and conditions
described in the foregoing clauses (a) and (b) being hereinafter collectively
referred to as the "Obligations").
SECTION 4. Grantor Remains Liable. Anything herein to the contrary
notwithstanding, (a) the Grantor shall remain liable under the Contracts and
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agreements included in the Collateral to the extent set forth therein to
perform all of its duties and obligations thereunder to the same extent as if
this Agreement had not been executed; (b) the exercise by the Agent or any Bank
of any of the rights hereunder shall not release the Grantor from any of its
duties or obligations under the contracts and agreements included in the
Collateral; and (c) the Agent and the Banks shall not have any obligation or
liability under the Contracts and agreements included in the Collateral by
reason of this Agreement, nor shall the Agent or any Bank be obligated to
perform any of the obligations or duties of the Grantor thereunder or to take
any action to collect or enforce any claim for payment assigned hereunder.
SECTION 5. Representations and Warranties. The Grantor hereby
represents and warrants as follows:
(a) Except as set forth on Schedule II attached hereto, all
records concerning the Grantor's Receivables (if any) and all originals
of all chattel paper (if any) which evidence Receivables are and will
remain located (i) at the chief executive office located at 9311 San
Pedro, Suite 300, San Antonio, Texas 78216, until April 1, 1997 and
(ii) from and after April 1, 1997, at the chief executive office at One
Technology Center, 7411 John Smith Drive, San Antonio, Texas 78229.
The Grantor will notify the Agent of any change of its name, its
corporate structure or the address of its chief executive office or
principal place of business listed above at least 30 days prior to any
such change.
(b) The 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.
(c) With respect to all of the Collateral, upon the filing of
appropriate financing statements in the jurisdictions listed on Schedule
III attached hereto, this Agreement will create a valid first priority
Lien in the Collateral (subject only to Permitted Liens), securing the
payment of the Obligations in such jurisdictions with respect to which a
security interest may be perfected by filing financing statements in the
United States and its territories pursuant to the UCC or other
applicable law. All action necessary or desirable to protect and
perfect such security interest in each item of Collateral has been duly
taken, and no further or subsequent filing, refiling, recording,
rerecording, registration or reregistration is necessary in any
jurisdiction, except as provided under applicable law with respect to
the filing of continuation statements.
(d) Other than the filings and other actions described in
Section 5(c) 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 or regulatory body, is
required for (i) the due execution, delivery and performance of this
Agreement by the Grantor, and the other documents and instruments
executed in connection herewith; (ii) the grant by the Grantor of the
security interests granted hereby; (iii) the perfection of the security
interests granted hereby; or (iv) except for actions required by the
UCC, the exercise by the Agent and the Banks of their respective rights
and remedies hereunder.
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(e) This Agreement is, and all other documents and instruments
executed in connection herewith when delivered will be, the legal, valid
and binding obligations of the Grantor, enforceable against the Grantor
in accordance with their respective terms, except as enforcement may be
(i) limited by Debtor Laws and (ii) subject to the general effect of
general principles of equity (regardless of whether such enforceability
is considered in a proceeding in equity or at law).
(f) The Grantor has received, or will receive, direct or
indirect benefit from the making of this Agreement.
(g) As of the date hereof, except as set forth on Schedule IV
attached hereto, none of the obligors on any of the Grantor's
Receivables is a governmental authority which would require the Agent's
security interest with respect to such Receivables created hereunder to
be perfected other than by the filing of a UCC-1 Financing Statement.
(h) The Grantor's Federal Employer Identification Number is
74-246717 and it has never utilized any other Federal Employer
Identification Number. The Grantor will not change its Federal Employer
Identification Number unless the Grantor notifies the Agent of any
change in writing at least 30 days prior to the date of such change and
executes such additional mortgages, security agreements and financing
statements as may be reasonably requested by the Agent.
SECTION 6. Further Assurances.
(a) The Grantor authorizes the Agent to file financing
statements (including, without limitation, Form UCC-1, Form UCC-2 or
Form UCC-3) and other security documents executed by the Grantor in such
offices and locations as are necessary in the opinion of the Agent to
perfect the security interests granted herein. The Grantor further
agrees that from time to time, at the expense of the Grantor, the
Grantor will promptly give, execute, deliver, file and/or record all
further instruments and documents, opinions of counsel or other papers,
and take all further action that may be reasonably necessary or
desirable, or that the Agent may reasonably request, in order to protect
any security interests renewed and extended or granted or purported to
be granted hereby and to create, preserve, fix, validate and perfect any
security interests granted hereby in any Collateral now or hereafter
acquired by the Grantor or to enable the Agent to exercise and enforce
the Banks' rights and remedies hereunder with respect to any of the
Collateral. Without limiting the generality of the forgoing, the
Grantor will: (i) at the reasonable request of the Agent, mark
conspicuously each Chattel Paper, Document and Contract Right included
in the Receivables, each Receivable and each of its records pertaining
to the Collateral with a legend, in form and substance satisfactory to
the Agent, indicating that such Chattel Paper, Receivable or Collateral
is subject to the security interests granted hereby; (ii) if any
Receivable shall be evidenced by a promissory note or other Instrument
or Chattel Paper, at the request of the Agent deliver and pledge to the
Agent hereunder such note, Instrument or Chattel Paper duly endorsed and
accompanied by duly executed instruments of transfer or
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assignment, all in form and substance satisfactory to the Agent; and
(iii) execute and file such financing or continuation statements, or
amendments thereto, and such other instruments or notices, as may be
necessary or desirable, or as the Agent may reasonably request, in order
to perfect and preserve the security interests granted or purported to
be granted hereby.
(b) The Grantor authorizes the Agent to file a carbon,
photographic, facsimile or other reproduction of this Agreement as a
financing statement or to file one or more financing or continuation
statements, and amendments thereto, relative to all of any part of the
Collateral without the signature of the Grantor, where permitted by law.
(c) The Grantor will furnish to the Agent from time to time
statements and schedules further identifying and describing the
Collateral and such other reports in connection with the Collateral as
the Agent may reasonably request, all in reasonable detail.
(d) The Grantor shall notify the Agent promptly, in reasonable
detail of (i) any Lien or claim made or asserted against any of the
Collateral (other than Permitted Liens); (ii) any material change in the
composition of the Collateral; and (iii) the occurrence of any other
event that could have a material adverse effect on the aggregate value
of the Collateral or on the Lien created hereunder.
SECTION 7. As to Receivables. The Grantor shall:
(a) keep its chief place of business and chief executive
offices 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
5(a) or at such other locations in jurisdictions where all action
required by Section 6 shall have been taken with respect to the
Receivables. The Grantor will at all times hold and preserve such
records and Chattel Paper;
(b) except as otherwise provided in this Section 7(b),
continue to collect, at its own expense, all amounts due or to become
due to it under the Receivables. In connection with such collections,
the Grantor may take such action as the Grantor may deem necessary or
advisable to enforce collection of the Receivables; provided, however,
that the Agent shall have the right, at any time after the occurrence
and during the continuance of an Event of Default, to notify the account
debtors or obligors under any Receivables of the assignment of such
Receivables to the Agent and to direct such account debtors or
obligators to make payment of all amounts due or to become due to the
Grantor thereunder directly to the Agent and, upon such notification and
at the expense of the Grantor, 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 the Grantor might
have done. After the occurrence and during the continuance of an Event
of Default, all amounts and proceeds (including Instruments) received by
the Grantor in respect of the Receivables shall be received in trust
for the benefit of the Agent hereunder, shall be segregated from
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other funds of the Grantor and shall be forthwith paid over to the Agent
in the same form as so received (with any necessary endorsement) to be
applied as provided by Section 14(b). The Grantor shall not adjust,
settle or compromise the amount or payment of any Receivable, or release
wholly or partly any account debtor or obligor thereof, or allow any
credit or discount thereon other than in the ordinary course of
business; and
(c) except as permitted in the Credit Agreement, not sell or
discount any notes or Receivables.
SECTION 8. Change of Name, Identity or Structure. The Grantor will
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 the Grantor shall have given the Agent at least
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 Agent to amend such financing statement or continuation
statement so that it is not seriously misleading.
SECTION 9. Right of Inspection. During all business hours upon
reasonable notice and without unreasonable interference with the operation of
the business of Grantor, and during any time that an Event of Default continues
to exist, (i) the Agent and its representatives shall have the right to enter
into and upon any premises where any of the Collateral is located for the
purposes of inspecting the same, observing its use or otherwise protecting its
interests therein; and (ii) the Agent shall have access to all the records of
the Grantor and the Agent or its representatives may examine the same, take
extracts therefrom and make photocopies thereof, and the Grantor agrees to
render to the Agent, at the Grantor's cost and expense, such clerical and other
assistance as may be reasonably requested with regard thereto.
SECTION 10. Transfers and Other Liens. The Grantor shall not (a)
sell, assign (by operation of law or otherwise) or otherwise dispose of any of
the Collateral, except as permitted by Section 6.7 of the Credit Agreement or
(b) create or suffer to exist any Lien upon or with respect to any of the
Collateral to secure the Indebtedness of any Person, other than Permitted
Liens. In the event that any of the Collateral is sold or otherwise disposed
of in compliance with the terms of Section 6.7 of the Credit Agreement, the
Agent shall, at the Grantor's expense, promptly release the Lien of this
Agreement with respect to such Collateral.
SECTION 11. Agent Appointed Attorney-in-Fact. The Grantor hereby
irrevocably appoints the Agent, effective upon the occurrence of an Event of
Default and only for so long thereafter as such event of default continues, the
Grantor's attorney-in-fact, with full authority in the place and stead of such
Grantor and in the name of the Grantor, the Agent or otherwise from time to
time in the Agent's discretion, to take any action and to execute any
instrument which the Agent may deem necessary or advisable to accomplish the
purposes of this Agreement, including, without limitation:
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(a) to ask, demand, collect, sue for, recover, compound,
receive and give acquittance and receipts for moneys 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;
(c) to receive, open and dispose of all mail addressed to the
Grantor and to notify the United States Post Office authorities to
change the address for delivery of all mail addressed to the Grantor to
such address as the Agent may designate;
(d) to execute in connection with any sale of the Collateral
pursuant to Section 14 hereof, any endorsements, assignments, bills of
sale or other instruments of conveyance or transfer with respect to the
Collateral;
(e) to file any claims or take any action or institute any
proceedings which the Agent may deem necessary or desirable for the
collection of any of the Collateral or otherwise to enforce the rights
of the Agent and the Banks, including, without limitation, the
collection of royalties or other compensation due under any license,
with respect to any of the Collateral;
(f) to endorse the Grantor's name on all applications,
assignments, registrations, documents, papers and instruments necessary
or desirable for the Agent in the use of the Collateral; and
(g) to assign, pledge, convey or otherwise transfer title in
or dispose of the Collateral to anyone.
SECTION 12. Agent May Perform. If the Grantor fails to perform any
agreement contained herein (and such failure continues beyond any applicable
grace period or opportunity to cure), the Agent may itself perform, or cause
performance of, such agreement, and the expenses of the Agent incurred in
connection therewith shall be payable by the Grantor under Section 15(b)
hereof.
SECTION 13. Duties as to Collateral. The powers conferred on the
Agent and the Banks hereunder are solely to protect their respective interest
in the Collateral and shall not impose any duty upon the Agent or any Bank to
exercise any such powers. Except for the safe custody of any Collateral in its
possession and the accounting for moneys actually received by it hereunder, the
Agent and the Banks shall not 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.
SECTION 14. Remedies. If any Event of Default shall have occurred and
be continuing:
(a) The Agent may exercise in respect of the Collateral, 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
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cumulative thereof, the following rights: the right to sell or
otherwise dispose of the Collateral and the right to take possession of
the Collateral, and for that purpose, the 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 Agent may
require the Grantor to, and the Grantor hereby agrees that it will, at
its expense and upon the request of the Agent, forthwith assemble all or
part of the Collateral and all documents relating to the Collateral as
directed by the Agent and make the Collateral available to the Agent at
a place to be designated by the Agent; without notice except as
specified below, sell the Collateral in one or more parcels at public or
private sale, at any of the Agent's offices or elsewhere, for cash, on
credit or for future delivery, and upon such other terms as the Agent
may reasonably deem commercially reasonable. The Grantor agrees that,
to the extent notice of sale shall be required by law, at least 10 days'
notice to the 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 Agent shall not be obligated to make any
sale of Collateral regardless of notice of sale having been given. The
Agent may adjourn any pubic 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 Agent in respect of any
sale of, collection from, or other realization upon all or any part of
the Collateral shall be applied in whole or in part by the Agent against
the Obligations in any order the Agent may select. Any surplus of such
cash or cash proceeds held by the Agent and remaining after payment in
full of all the Obligations shall be paid over to the Grantor or to
whomsoever may be lawfully entitled to receive such surplus; provided
that the 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 Agent and the Banks
expressed herein are in addition to all other rights and remedies
possessed by the Agent and the Banks in the Loan Documents and any other
agreement or instrument relating to the Obligations.
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SECTION 15. Indemnity, Expenses and Interest.
(a) To the fullest extent permitted by law and subject to the
provisions of Section 10.8 of the Credit Agreement, the Grantor agrees
to indemnify the Agent and the Banks and their respective affiliates,
subsidiaries, parent companies and other related entities, and their
respective officers, directors employees, agents, attorneys and other
professionals and consultants, insurers and stockholders, and each of
them, in the manner set forth in Section 10.4 of the Credit Agreement.
(b) Subject to the provisions of Section 10.8 of the Credit
Agreement, the Grantor agrees to pay to the Agent and the Banks the
costs and expenses set forth in Section 10.3 of the Credit Agreement in
the manner set forth in Section 10.3 of the Credit Agreement.
(c) Subject to the provisions of Section 10.8 of the Credit
Agreement, the Grantor agrees to pay interest on any expenses or other
sums due to the Agent and the Banks hereunder that are not paid when due
(after the expiration of any applicable grace period) at the Default
Rate.
SECTION 16. Amendments, Etc. No amendment or waiver of any provision
of this Agreement nor consent to any departure by the Grantor herefrom shall in
any event be effective unless the same shall be in writing and signed by the
Required Banks, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given.
SECTION 17. Addresses for Notices. Except as otherwise expressly
provided herein, all notices and other communications provided for hereinafter
shall be in writing (including telegraphic, telex, facsimile, or cable
communication) and, if to the Grantor, mailed, telegraphed, transmitted, cabled
or delivered to it, addressed to it at the address of the Grantor specified on
the signature page hereof; if to the Agent or any Bank (as the case may be),
mailed, telegraphed, transmitted, cabled or delivered to it, addressed to it at
the address of the Agent and the Banks specified in the Credit Agreement; or as
to each party at such other address as shall be designated by such party in a
written notice to each other party complying as to delivery with the terms of
this Section 17. All such notices and other communications shall, when mailed,
telegraphed, telexed, transmitted or cabled, respectively, be effective when
deposited in the mails, confirmed by telex answer back, transmitted by
telecopier or delivered to the cable company, respectively.
SECTION 18. Security Interest Absolute. All rights of the Agent and
the Banks, all obligations of the Grantor hereunder and the security interests
hereunder shall to the extent permitted by the applicable law, be absolute and
unconditional, irrespective of:
(a) any lack of validity or enforceability of the Credit
Agreement, the Notes, the Letters or Credit 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;
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(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, the Letters of Credit, any of the other Loan
Documents, or any other agreement or instrument 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 (other than payment in full of the
Obligations) which might otherwise constitute a defense available to, or
a discharge of, the Grantor or any Loan Party in respect of the
Obligations or the Grantor in respect of this Agreement.
SECTION 19. Continuing Security Interest. This Agreement shall create
a continuing security interest in the Collateral and shall (a) remain in full
force and effect until termination of the obligations of the Banks to make the
Loans and issue the Letters of Credit and the indefeasible payment in full
thereafter of the Obligations and the expiration and termination of all Letters
of Credit; (b) be binding upon the Grantor, its successors and assigns; and (c)
inure to the benefit of the Agent, the Banks and their respective successors,
transferees and assigns. Without limiting the generality of the foregoing
clause (b), the Agent and the Banks may assign or otherwise transfer any of
their respective rights under this Agreement to any other Person, and such
Person shall thereupon become vested with all the benefits in respect thereof
granted herein or otherwise to the Agent or the Banks, as the case may be.
SECTION 20. Waiver of Marshalling. All rights of marshalling of
assets of the Grantor, including any such right with respect to the Collateral,
are hereby waived by the Grantor.
SECTION 21. 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 22. Termination of Agreement. Upon the termination of
obligations of the Banks to make the Loans and the indefeasible payment in full
thereafter of the Obligations, this Agreement shall terminate and be of no
further force and effect and the Agent shall, at the expense of and the request
of the Grantor, execute and deliver to the Grantor such documents and
instruments reasonably requested by the Grantor to evidence the release of the
security interests created by this Agreement in any such Collateral which has
not been sold or otherwise applied pursuant to the terms hereof; provided,
however, notwithstanding the termination of, and the release of the security
interests created by, this Agreement, the obligations of
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the Grantor and the rights of the Agent and the Banks under Sections 4 and 15
shall survive termination and release.
SECTION 23. Survival of Representations and Warranties. All
representations and warranties contained in this Agreement or made in writing
by or on behalf of the Grantor in connection herewith shall survive the
execution and delivery of this Agreement. Any investigation by the Agent or
any Bank shall not diminish in any respect whatsoever its right to rely on such
representations and warranties.
SECTION 24. Separability. Should any clause, sentence, paragraph,
subsection or Section of this Agreement be judicially declared to be invalid,
unenforceable or void, such decision will not have the effect of invalidating
or voiding the remainder of this Agreement, and the parties hereto agree that
the part or parts of this Agreement so held to be invalid, unenforceable or
void will be deemed to have been stricken herefrom by the parties hereto, and
the remainder will have the same force and effectiveness as if such stricken
part or parts had never been included herein.
SECTION 25. Captions. The captions in 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 26. No Waiver; Remedies. No failure on the part of the 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
right hereunder 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 and any rights and remedies possessed
by the Agent or any Bank in the Credit Agreement, the Notes, the Letters of
Credit the other Loan Documents and any other agreement or instrument relating
to the Obligations.
SECTION 27. 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 28. Governing Law; Submission to Jurisdiction. THIS AGREEMENT
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE
STATE OF TEXAS (WITHOUT REGARD TO ANY CONFLICTS OF LAW PRINCIPLES). THE
PARTIES EXPRESSLY ACKNOWLEDGE THAT (I) THEY INTEND THAT THIS AGREEMENT SHALL BE
GOVERNED BY THE PROVISIONS (INCLUDING, WITHOUT LIMITATION, THE RIGHT OF THE
PARTIES TO SELECT THE GOVERNING LAW) OF THE UNIFORM COMMERCIAL CODE AND NOT BY
COMMON LAW AND (II) THE STATE OF TEXAS BEARS A REASONABLE RELATIONSHIP TO THIS
TRANSACTION AND NO OTHER STATE HAS A MATERIALLY GREATER INTEREST IN THIS
TRANSACTION THAN THE STATE OF TEXAS. THE GRANTOR HEREBY SUBMITS TO THE
NONEXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE WESTERN
DISTRICT OF TEXAS AND OF ANY TEXAS STATE COURT SITTING IN TEXAS FOR PURPOSES OF
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ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREUNDER.
[signatures on following page]
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IN WITNESS WHEREOF, the Grantor has caused this Agreement to be duly
executed and delivered by its officer thereunto duly authorized as of the date
first above written.
BILLING INFORMATION CONCEPTS, INC.
By: /s/ KELLY E. SIMMONS
------------------------------------
Name: Kelly E. Simmons
---------------------------
Title: Senior Vice President and
--------------------------
Chief Financial Officer
--------------------------
ADDRESS: (until April 1, 1997)
9311 San Pedro, Suite 300
San Antonio, Texas 78216
Facsimile:
-----------------------------
Attention:
-----------------------------
ADDRESS: (from and after April 1, 1997)
One Technology Center
7411 John Smith Drive
San Antonio, Texas 78229
Facsimile:
-----------------------------
Attention:
-----------------------------
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SCHEDULE I
TO
SECURITY AGREEMENT
(SUBSIDIARY NOTES AND SECURITY INTERESTS)
None
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SCHEDULE II
TO
SECURITY AGREEMENT
(LOCATIONS)
(a) Place of Business: The actual and anticipated principal place of
business of the Grantor is located at 9311 San Pedro, Suite 300, San
Antonio, Texas 78216; provided however, such location will change to One
Technology Center, 7411 John Smith Drive, San Antonio, Texas 78229 on
April 1, 1997.
(b) Receivables Records: All records concerning the Grantor's Receivables
(if any) and all originals of all Chattel Paper (if any) which evidence
Receivables are and will remain at the address set forth in (a) above.
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SCHEDULE III
TO
SECURITY AGREEMENT
(FILING JURISDICTIONS)
Secretary of State of the State of Texas
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SCHEDULE IV
TO
SECURITY AGREEMENT
(GOVERNMENTAL OBLIGORS)
None
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