EXHIBIT 10.16
SECURITY AGREEMENT
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THIS SECURITY AGREEMENT ("Agreement") is made as of the 2nd day of
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October, 2001, by FIRST CONSUMER CREDIT, INC., a Texas corporation (hereinafter
called "Debtor", whether one or more), whose chief executive office (as that
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term is used in the Code) is located at 00000 Xxxxxxxxx Xxxxx Xxxxx, Xxxxx 000,
Xxxxxx, Xxxxxx Xxxxxx, Xxxxx 00000 and whose organization number is __________
and tax identification number is _____________ in favor of TBE FROST NATIONAL
BANK, a national banking association ("Secured Party"), whose address is P.O.
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Xxx 0000, Xxx Xxxxxxx, Xxxxx 00000. Debtor hereby agrees with Secured Party as
follows:
1. Definitions. As used in this Agreement, the following terms shall have
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the meanings indicated below:
(a) The term "Obligor" shall mean Debtor.
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(b) The term "Code" shall mean the Texas Business and Commerce Code as in
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effect in the State of Texas on the date of this Agreement or as it may
hereafter be amended from time to time.
(c) The term "Collateral" shall mean all of the personal property of
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Debtor as set forth below (as indicated), wherever located, and now owned or
hereafter acquired:
(a) All "accounts", as defined in the Code (including healthcare
insurance receivables), together with any and all books of account,
customer lists and other records relating in any way to the foregoing
(including, without limitation, computer software, whether on tape, disk,
card, strip, cartridge or any other form), and in any case where an
account arises from the sale of goods, the interest of Debtor in such
goods.
(b) All "chattel paper" as defined in the Code, and all records
relating in any way to the foregoing (including, without limitation, any
computer software, whether on tape, disk, card, strip, cartridge or any
other form).
(c) All "equipment" as defined in the Code, of whatsoever kind and
character now or hereafter possessed, held, acquired, leased or owned by
Debtor and used or usable in Debtor's business, and in any event shall
include, but shall not be limited to, all machinery, tools, computer
software, office equipment; furniture, appliances, furnishings, fixtures,
vehicles, motor vehicles, together with all replacements, accessories,
additions, substitutions and accessions to all of the foregoing, and all
manuals, instructions and records relating in any way to the foregoing
(including, without limitation, any computer software, whether on tape,
disk, card, strip, cartridge or any other form). To the extent that the
foregoing property is located on, attached to, annexed to, related to, or
used *in connection with, or otherwise made a part of, and is or shall
become fixtures upon, real property, such real property and the record
owner thereof (if other than Debtor) is described on Exhibit A attached
hereto and made a part hereof.
(d) All "instruments" as defined in the Code (including promissory
notes), and all records relating in any way to the foregoing (including,
without limitation, any computer software, whether on tape, disk, card,
strip, cartridge or any other form).
(e) All "investment property" as defined *in the Code, and all
records relating in any way to the foregoing (including, without
limitation, any computer software, whether on tape, disk, card, strip,
cartridge or any other form).
SECURITY AGREEMENT - Page 1
(f) All "documents" as defined in the Code, and all records relating
in any way to the foregoing (including, without limitation, any computer
software, whether on tape, disk, card, strip, cartridge or any other
form).
(g) All "deposit accounts" as defined in the Code (but excluding any
deposit accounts established in Debtor's name with Bank One, NA or its
affiliates for the purpose of collecting payments on installment
contracts owned by Bank One, NA, or any of its affiliates and serviced by
Debtor), and all records relating in any way to the foregoing (including,
without limitation, any computer software, whether on tape, disk, card,
strip, cartridge or any other form).
(h) All "general intangibles" as defined in the Code, and all
records relating in any way to the foregoing (including, without
limitation, any computer software, whether on tape, disk, card, strip,
cartridge or any other form), including all permits, regulatory
approvals, copyrights, patents, trademarks, service marks, trade names,
mask works, goodwill, licenses and all other intellectual property owned
by Debtor or used in Debtor's business.
(i) All "payment intangibles' as defined in the Code, including
without limitation all consumer home improvement contracts or loans
which are evidenced by an installment contract or similar agreement, and
which have been purchased or originated by Debtor, together with the
rights and obligations of a holder thereof and all payments thereon (the
"Installment Contracts").
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(j) All "supporting obligations" as defined in the Code, and all
records relating in any way to the foregoing (including, without
limitation, any computer software, whether on tape, disk, card, strip,
cartridge or any other form).
The term Collateral, as used herein, shall also include all PRODUCTS
and PROCEEDS of all of the foregoing (including without limitation,
insurance payable by reason of loss or damage to the foregoing property)
and any property, securities, guaranties or monies of Debtor which may at
any time come into the possession of Secured Party. Notwithstanding the
generality of the foregoing grant, it is hereby acknowledged and agreed
that any rights of Secured Party under this Agreement or the other Loan
Documents in (i) any equipment leased to Debtor or which was purchased by
Debtor and was financed by Debtor with the seller of said equipment or
any other party shall be subject to and inferior and subordinate to the
rights of the applicable lessee or purchase money lender in such
equipment and (ii) any computer software of Debtor is subject to the
terms of any computer software license agreement between Debtor and the
respective licensor. Secured Party acknowledges and agrees that Debtor
may, in the future, acquire or lease equipment and acquire computer
software in accordance with this Agreement. The designation of proceeds
does not authorize Debtor to sell, transfer or otherwise convey any of
the foregoing property except finished goods intended for sale in the
ordinary course of Debtor's business or as otherwise provided herein.
(d) The term "Indebtedness" shall mean (i) all indebtedness, obligations
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and liabilities of Obligor to Secured Party of any kind or character, now
existing or hereafter arising, whether direct, indirect, related, unrelated,
fixed, contingent liquidated, unliquidated, joint, several or joint and
several, and regardless of whether such indebtedness, obligations and
liabilities may, prior to their acquisition by Secured Party, be or have been
payable to or in favor of a third party and subsequently acquired by Secured
Party (it being contemplated that Secured Party may make such acquisitions from
third parties), including without limitation all indebtedness, obligations and
liabilities of Obligor to Secured Party now existing or hereafter arising by
note, draft, acceptance, guaranty, endorsement, letter of credit, assignment
purchase, overdraft, discount, indemnity agreement or otherwise, including,
without limitation that one certain promissory note dated of even date
herewith, in the original principal amount of $3,500,000 executed by Obligor
and payable to the order of Secured Party, (ii) all accrued but unpaid interest
on any of the indebtedness described in (i) above, (iii) all obligations of
Obligor to Secured Party under any documents evidencing, securing, governing
and/or pertaining to all or any part of the indebtedness described in (i) and
(ii) above, (iv) all costs and expenses
SECURITY AGREEMENT - Page 2
incurred by Secured Party in connection with the collection and administration
of all or any part of the indebtedness and obligations described in (i), (ii)
and (iii) above or the protection or preservation of, or realization upon, the
collateral securing all or any part of such indebtedness and obligations,
including without limitation all reasonable attorneys' fees, and (v) all
renewals, extensions, modifications and rearrangements of the indebtedness and
obligations described in (i), (ii), (iii) and (iv) above.
(e) The term "Loan Documents" shall mean all instruments and documents
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evidencing, securing, governing, guaranteeing and/or pertaining to the
Indebtedness.
(f) The term "Obligated Party" shall mean any party other than Obligor,
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including, without limitation Debtor, who secures, guarantees and/or is
otherwise obligated to pay an or any portion of the Indebtedness.
All words and phrases used herein which are expressly defined in Section 1.201
or Chapter 9 of the Code shall have the meaning provided for therein. Other
words and phrases defined elsewhere in the Code shall have the meaning
specified therein except to the extent such meaning is inconsistent with a
definition in Section 1.201 or Chapter 9 of the Code.
2. Security Interest. As security for the Indebtedness, Debtor, for value
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received, hereby pledges and grants to Secured Party a continuing security
interest in the Collateral.
3. Representations and Warranties. In addition to any representations and
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warranties of Debtor set forth in the Loan Documents, which are incorporated
herein by this reference, Debtor hereby represents and warrants the following
to Secured Party:
(a) Authority. The execution, delivery and performance of this Agreement
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and all of the other Loan Documents by Debtor have been duly authorized by all
necessary corporate action of Debtor.
(b) Accuracy of Information. All information heretofore, herein or
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hereafter supplied to Secured Party by or on behalf of Debtor with respect to
the Collateral is true and correct to the best of Debtor's knowledge. The exact
legal name, social security number (if applicable), tax identification number,
employee identification number and organization number of Debtor is correctly
shown in the first paragraph hereof.
(c) Enforceability. This Agreement and the other Loan Documents constitute
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legal, valid and binding obligations of Debtor, enforceable in accordance with
their respective terms, except as limited by bankruptcy, insolvency or similar
laws of general application relating to the enforcement of creditors' rights
and except to the extent specific remedies may generally be limited by
equitable principles.
(d) Ownership and Liens. Debtor has good and marketable title to the
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Collateral free and clear of all hens, security interests, encumbrances or
adverse claims, except for the security interest created by this Agreement and
liens, security interests and encumbrances expressly permitted under this
Agreement or any of the other Loan Documents. To the best of Debtor's
knowledge, no dispute, right of setoff, counterclaim or defense exists with
respect to all or any part of the Collateral. Debtor has not executed any other
security agreement currently affecting the Collateral and no effective
financing statement or other instrument similar in effect covering all or any
part of the Collateral is on file in any recording office except as may have
been executed or filed in favor of Secured Party or in connection with any hen,
security interest or encumbrance expressly permitted under this Agreement or
any other Loan Document.
(e) No Conflicts or Consents. Neither the ownership of the Collateral,
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the intended use of the Collateral by Debtor, the grant of the security
interest by Debtor to Secured Party herein nor the exercise by Secured Party of
its rights or remedies hereunder, will (i) conflict with any provision of (A)
any domestic or foreign law, statute, rule or regulation, (B) the articles or
certificate of incorporation, charter or bylaws of Debtor, or (C) any
agreement, judgment, license, order or permit applicable to or binding upon
Debtor, or (ii)
SECURITY AGREEMENT - Page 3
result in or require the creation of any hen, charge or encumbrance upon any
assets or properties of Debtor or of any person except as may be expressly
contemplated in the Loan Documents. Except as expressly contemplated in the
Loan Documents, no consent, approval, authorization or order of, and no notice
to or filing with, any court, governmental authority or third party is required
in connection with the grant by Debtor of the security interest herein or the
exercise by Secured Party of its rights and remedies hereunder.
(f) Security Interest. Debtor has and will have at all times full right
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power and authority to grant a security interest in the Collateral to Secured
Party in the manner provided herein, free and clear of any lien, security
interest or other charge or encumbrance other than. any lien, security interest
or other charge or encumbrance expressly permitted under this Agreement or any
other Loan Document. This Agreement creates a legal, valid and binding security
interest in favor of Secured Party in the Collateral securing the Indebtedness.
To the extent permitted in the Code, possession by Secured Party of all
certificates, instruments and cash constituting Collateral from time to time
and/or the filing of the financing statements delivered prior hereto and/or
concurrently herewith by Debtor to Secured Party will perfect and establish the
first priority of Secured Party's security interest hereunder in the Collateral.
(g) Location/Identity. Debtor's principal residence or place of business
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and chief executive office (as those terms are used in the Code), as the case
may be is located at the address set forth on the first page hereof Except as
specified elsewhere herein, all Collateral and records concerning the
Collateral shall be kept at such address or shall be kept and maintained by
Secured Party. Debtor's organizational structure, state of organization, and
organizational number (the "Organizational Information") are as set forth on
the first page hereof. Except as specified herein, the Organizational
Information shall not change.
(h) Solvency of Debtor. As of the date hereof, and after giving effect to
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this Agreement and the completion of all other transactions contemplated by
Debtor at the time of the execution of this Agreement, (i) Debtor is and will
be solvent, (ii) the fair saleable value of Debtor's assets exceeds and will
continue to exceed Debtor's liabilities both fixed and contingent), (iii)
Debtor is paying and will continue to be able to pay its debts as they mature,
and (iv) if Debtor is not an individual, Debtor has and will have sufficient
capital to carry on Debtor's businesses and all businesses in which Debtor is
about to engage.
(i) Exclusion of Certain Collateral. Unless otherwise agreed by Secured
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Party, the Collateral does not include any aircraft, watercraft or vessels,
railroad cars, railroad equipment, locomotives or other rolling stock intended
for a use related to interstate commerce.
(j) Accounts. Each account represents the valid and legally binding
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indebtedness of a bona fide account debtor arising from the sale or lease by
Debtor of goods or the rendition by Debtor of services and is not subject to
contra accounts, setoffs, defenses or counterclaims by or available to account
debtors obligated on the accounts except as disclosed by Debtor to Secured
Party from time to time in writing. The amount shown as to each account on
Debtor's books is the true and undisputed amount owing and unpaid thereon,
subject only to discounts, allowances, rebates, credits and adjustments to
which the account debtor has a right and which have been disclosed to Secured
Party in writing.
(k) Chattel Paper, Documents and Instruments. The Installment Contracts,
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chattel paper, documents and instruments of Debtor pledged hereunder have only
one original counterpart and no party other than Debtor, Secured Party or any
bailee of Secured Party is in actual or constructive possession of any such
Installment Contracts, 'chattel paper, documents or instruments.
4. Affirmative Covenants. In addition to all covenants and agreements of
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Debtor set forth in the Loan Documents, which are incorporated herein by this
reference, Debtor will comply with the covenants contained in this Section 4 at
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all times during the period of time this Agreement is effective unless Secured
Party shall otherwise consent in writing.
SECURITY AGREEMENT - Page 4
(a) Ownership and Liens. Debtor will maintain good and marketable title to
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all Collateral free and clear of all liens, security interests, encumbrances or
adverse claims, except for the security interest created by this Agreement and
the security interests and other encumbrances expressly permitted herein or by
the other Loan Documents. Debtor will not permit any dispute, right of setoff,
counterclaim or defense to exist with respect to all or any part of the
Collateral. Debtor will cause any financing statement or other security
instrument with respect to the Collateral to be terminated, except as may exist
or as may have been filed in favor of Secured Party. Debtor hereby irrevocably
appoints Secured Party as Debtor's attorney-in-fact, such power of attorney
being coupled with an interest, with full authority in the place and stead of
Debtor and in the name of Debtor or otherwise, for the purpose of terminating
any financing statements currently filed with respect to the Collateral. Debtor
will defend at its expense Secured Party's right, title and security interest
in and to the Collateral against the claims of any third party.
(b) Further Assurances. Debtor will from time to time at its expense
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promptly execute and deliver all further instruments and documents and take all
further action necessary or appropriate or that Secured Party may request in
order (i) to perfect and protect the security interest created or purported to
be created hereby and the first priority of such security interest, (ii) to
enable Secured Party to exercise and enforce its rights and remedies hereunder
in respect of the Collateral, and (iii) to otherwise effect the purposes of
this Agreement, including without limitation: (A) executing (if requested) and
filing such financing or continuation statements, or amendments thereto; and
(B) furnishing to Secured Party from time to time statements and schedules
further identifying and describing the Collateral and such other reports in
connection with the Collateral, all in reasonable detail satisfactory to
Secured Party.
(c) Inspection of Collateral. Debtor will keep adequate records concerning
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the Collateral and will permit Secured Party and all representatives and agents
appointed by Secured Party, at Secured Party's sole expense, so long as no
Event of Default is continuing, to inspect any of the Collateral and the books
and records of or relating to the Collateral at any time during normal business
hours, to make and take away photocopies, photographs and printouts thereof and
to write down and record any such information. During the continuation of any
Event of Default~ all such inspections shall be at Debtor's expense.
(d) Payment of Taxes. Debtor (i) will timely pay all property and other
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taxes, assessments and governmental charges or levies imposed upon the
Collateral or any part thereof, (ii) will timely pay all lawful and legitimate
claims which, if unpaid, are likely to become a lien or charge upon the
Collateral or any part thereof, and (iii) will maintain appropriate accruals
and reserves for all such liabilities in a timely fashion in accordance with
generally accepted accounting principles. Debtor may, however, delay paying or
discharging any such taxes, assessments, charges, claims or liabilities so long
as the validity thereof is contested in good faith by proper proceedings;
provided, however, Debtor understands and agrees that in the event of any such
delay in payment or discharge of such taxes, assessments and governmental
charges, and upon Secured Party's written request, Debtor will establish with
Secured Party an escrow acceptable to Secured Party adequate to cover the
payment of such taxes, assessments and governmental charges (which escrow shall
be returned to Debtor upon payment of such taxes, assessments, and governmental
charges, or disbursed in accordance with the resolution of the contest to the
claimant) or furnish Secured Party with an indemnity bond secured by a deposit
in cash or other security acceptable to Secured Party. Notwithstanding any
other provision contained in this Subsection, Secured Party may at its
discretion exercise its rights under Subsection 6(c) at any time to pay such
taxes, assessments, governmental charges, interest, costs and penalties.
(e) Mortgagee's and Landlord's Waivers. Within thirty (30) days after the
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execution of this Agreement, Debtor shall cause each mortgagee of real property
owned by Debtor and each landlord of real property leased by Debtor to execute
and deliver agreements satisfactory in form and substance to Secured Party by
which such mortgagee or landlord waives or subordinates any rights it may have
in the Collateral.
(f) Insurance. Debtor will, at its own expense, maintain insurance with
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respect to all Collateral which constitutes equipment and furniture, in such
amounts, against such risks, in such form and with such insurers, as shall be
satisfactory to Secured Party from time to time. If requested by Secured Party,
each policy
SECURITY AGREEMENT - Page 5
for property damage insurance shall provide for all losses to be paid directly
to Secured Party. If requested by Secured Party, each policy of insurance
maintained by Debtor shall (i) name Debtor and Secured Party as insured parties
thereunder (without any representation or warranty by or obligation upon
Secured Party) as their interests may appear, (ii) contain the agreement by the
insurer that any loss thereunder shall be payable to Secured Party
notwithstanding any action, inaction or breach of representation or warranty by
Debtor, (iii) provide that there shall be no recourse against Secured Party for
payment of premiums or other amounts with respect thereto, and (iv) provide
that at least thirty (30) days prior written notice of cancellation or of lapse
shall be given to Secured Party by the insurer. Debtor will, if requested by
Secured Party, deliver to Secured Party original or duplicate policies of such
insurance and, as often as Secured Party may reasonably request, a report of a
reputable insurance broker with respect to such insurance. Debtor will also, at
the request of Secured Party, duly execute and deliver instruments of
assignment. of such insurance policies and cause the respective insurers to
acknowledge notice of such assignment. All insurance payments in respect of
loss of or damage to any Collateral shall be paid to Secured Party and applied
as Secured Party in its sole discretion deems appropriate.
(g) Accounts and General Intangibles. Debtor will, except as otherwise
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provided in Subsection 6(e) collect, at Debtor's own expense, all amounts due
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or to become due under each of the accounts and general intangibles. In
connection with such collections, Debtor may and, at Secured Party's direction,
will take such action not otherwise forbidden by Subsection 5(e) as Debtor or
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Secured Party may deem necessary or advisable to enforce collection or
performance of each of the accounts and general intangibles. Debtor will also
duly perform and cause to be performed all of its obligations with respect to
the goods or services, the sale or lease or rendition of which gave rise or
will give rise to each account and all of its obligations to be performed under
or with respect to the general intangibles. Debtor also covenants and agrees to
take any action and/or execute any documents that Secured Party may request in
order to comply with the Federal Assignment of Claims Act, as amended.
(h) Chattel Paper, Documents and Instruments. Debtor will take action as
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may be requested by Secured Party in order to cause any Installment Contracts,
chattel paper, documents or instruments to be valid and enforceable and will
cause all Installment Contracts and chattel paper to have only one original
counterpart. Upon reasonable request by Secured Party, Debtor will deliver to
Secured Party all originals of Installment Contracts, chattel paper, documents
or instruments and will xxxx all chattel paper with a legend indicating that
such chattel paper is subject to the security interest granted hereunder.
5. Negative Covenants. Debtor will comply with the covenants contained in
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this Section 5 at all times during the period of time this Agreement is
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effective, unless Secured Party shall otherwise consent in writing.
(a) Transfer or Encumbrance. Debtor will not (i) sell, assign (by
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operation of law or otherwise), transfer, exchange, lease or otherwise dispose
of any of the Collateral, (ii) xxxxx x xxxx or security interest in or execute,
authorize, file or record any financing statement or other security instrument
with respect to the Collateral to any party other than Secured Party, or (iii)
deliver actual or constructive possession of any of the Collateral to any party
other than Secured Party, except for (A) sales of Installment Contracts, so
long as proceeds thereof are delivered to Secured Party in accordance with the
terms of the Loan Agreement between Debtor and Secured Party of even date
herewith, as from time to time amended, modified or restated (the "Loan
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Agreement"), and (B) the sale or other disposal of any item of equipment which
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is worn out or obsolete and which has been replaced by an item of equal
suitability and value, owned by Debtor and made subject to the security
interest under this Agreement, but which is otherwise free and clear of any
lien, security interest encumbrance or adverse claim; provided, however, the
exceptions permitted in clauses (A) and (B) above shall automatically terminate
upon the occurrence of an Event of Default.
(b) Impairment of Security Interest. Debtor will not take or fail to take
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any action which would in any manner impair the value or enforceability of
Secured Party's security interest in any Collateral.
SECURITY AGREEMENT - Page 6
(c) Possession of Collateral. Debtor will not cause or permit the removal
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of any Collateral from its possession, control and risk of loss, nor will
Debtor cause or permit the removal of any Collateral (or records concerning the
Collateral) from the address on the first page hereof other than (1) as
permitted by Subsection 5(a), or (ii) in connection with the possession of any
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Collateral by Secured Party or by its bailee. If any Collateral is in the
possession of a third party, Debtor will join with Secured Party in notifying
the third party of Secured Party's security interest therein and obtaining an
acknowledgment from the third party that it is holding the Collateral for the
benefit of Secured Party.
(d) Goods. Debtor will not permit any Collateral which constitutes goods
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to at any time (i) be covered by any document except documents in the
possession of the Secured Party, (ii) become so related to, attached to or used
in connection with any particular real property so as to become a fixture upon
such real property, or (iii) be installed in or affixed to other goods so as to
become an accession to such other goods unless such other goods are subject to
a perfected first priority security interest under this Agreement.
(e) Compromise of Collateral. Debtor will not adjust~ settle, compromise,
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amend or modify any Collateral, except an adjustment, settlement, compromise,
amendment or modification in good faith and in the ordinary course of business;
provided, however, this exception shall automatically terminate upon the
occurrence of an Event of Default. At Secured Party's request, Debtor shall
provide to Secured Party such information concerning (i) any adjustment,
settlement, compromise, amendment or modification of any Collateral, and (ii)
any claim asserted by any account debtor for credit, allowance, adjustment,
dispute, setoff or counterclaim.
(f) Financing Statement Filings. Debtor recognizes that financing
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statements pertaining to the Collateral have been or may be filed in one or
more of the following jurisdictions: the location of Debtor's principal
residence, the location of Debtor's place of business, the location of Debtor's
chief executive office, or other such place as the Debtor may be "located"
under the provisions of the Code; where Debtor maintains any Collateral, or has
its records concerning any Collateral, as the case may be. Without limitation
of any other covenant herein, Debtor will neither cause or permit any change in
the location of (i) any Collateral, (ii) any records concerning any Collateral,
or (iii) Debtor's principal residence, the location of Debtor's place of
business, or the location of Debtor's chief executive office, as the case may
be, to a jurisdiction other than as represented in Subsection 3(g), nor will
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Debtor change its name or the Organizational Information as represented in
Subsection 3(g), unless Debtor shall have notified Secured Party in writing of
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such change at least thirty (30) days prior to the effective date of such
change, and shall have first taken all action required by Secured Party for the
purpose of further perfecting or protecting the security interest in favor of
Secured Party in the Collateral. In any written notice furnished pursuant to
this Subsection, Debtor will expressly state that the notice is required by
this Agreement and contains facts that may require additional filings of
financing statements or other notices for the purpose of continuing perfection
of Secured Party's security interest in the Collateral. Without limiting
Secured Party's rights hereunder, Debtor authorizes Secured Party to file
financing statements and amendments thereto under the provisions of the Code as
amended from time to time.
(g) Marking of Chattel Paper. Upon Secured Party's request, Debtor will
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not create any chattel paper without placing a legend on the chattel paper
acceptable to Secured Party indicating that Secured Party has a security
interest in the chattel paper.
6. Rights of Secured Party. Secured Party shall have the rights contained
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in this Section 6 at all times during the period of time this Agreement is
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effective.
(a) Additional Financing Statements Filings. Debtor hereby authorizes
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Secured Party to file, without the signature of Debtor, one or more financing
or continuation statements, and amendments thereto, relating to the Collateral
to the extent reasonably necessary to perfect Secured Party's security interest
in the Collateral. Debtor further agrees that a carbon, photographic or other
reproduction of this Security Agreement or any financing statement describing
any Collateral is sufficient as a financing statement and may be filed in any
jurisdiction Secured Party may deem appropriate.
SECURITY AGREEMENT - Page 7
(b) Power of Attorney. Debtor hereby irrevocably appoints Secured Party as
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Debtor's attorney-in-fact, such power of attorney being coupled with an
interest, with full authority in the place and stead of Debtor and in the name
of Debtor or otherwise, after the occurrence of an Event of Default, to take
any action and to execute any instrument which Secured Party may deem necessary
or appropriate to accomplish the purposes of this Agreement, including without
limitation: (i) to obtain and adjust insurance required by Secured Party
hereunder; (ii) to demand, collect, xxx for, recover, compound, receive and
give acquittance and receipts for moneys due and to become due under or in
respect of the Collateral; (iii) to receive, endorse and collect any drafts or
other instruments, documents and chattel paper in connection with clause (i) or
(ii) above; and (iv) to file any claims or take any action or institute any
proceedings which Secured Party may deem necessary or appropriate for the
collection and/or preservation of the Collateral or otherwise to enforce the
rights of Secured Party with respect to the Collateral.
(c) Performance by Secured Party. If Debtor fails to perform any agreement
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or obligation provided herein, Secured Party may itself perform, or cause
performance of, such agreement or obligation, and the expenses of Secured Party
incurred in connection therewith shall be a part of the Indebtedness, secured
by the Collateral and payable by Debtor on demand.
(d) Debtor's Receipt of Proceeds. Upon Secured Party's reasonable request
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(whether or not an Event of Default exists), all amounts and proceeds
(including instruments and writings received by Debtor in respect of the
Eligible Installment Contracts (as defined by the Loan Agreement) shall be
received by Debtor in trust for the benefit of Secured Party hereunder and,
upon the reasonable request of Secured Party, shall be segregated from other
property of Debtor and shall be forthwith delivered to Secured Party in the
same form as so received (with any necessary endorsement) and applied to the
Indebtedness in such manner as Secured Party deems appropriate in its
reasonable discretion. Debtor and Secured Party acknowledge that this provision
shall not apply to amounts and proceeds received by Debtor in connection with
contracts owned by Bank One. NA or its affiliates and serviced by Debtor.
(e) Notification of Account Debtors. Upon the occurrence of an Event of
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Default, Secured Party may at its discretion from time to time notify any or
all purchasers of Installment Contracts and obligors under any accounts or
general intangibles (i) of Secured Party's security interest in such
Installment Contracts, accounts or general intangibles and direct such
purchasers and obligors to make payment of all amounts due or to become due to
Debtor thereunder directly to Secured Party, and (ii) to verify the accounts or
general intangibles with such obligors. Secured Party shall have the right, at
the expense of Debtor, to enforce collection of any such accounts or general
intangibles and to adjust, settle or compromise the amount or payment thereof,
in the same manner and to the same extent as Debtor.
7. Events of Default. Each of the following constitutes an "Event of
----------------- --------
Default" under this Agreement:
-------
(a) Default in Payment. The failure, refusal or neglect of Obligor to make
------------------
any payment of principal or interest on the Indebtedness, or any portion
thereof, within five (5) days after the same becomes due and payable; or
(b) Non-Performance of Covenants. The failure of Obligor or any Obligated
----------------------------
Party to timely and properly observe, keep or perform any covenant, agreement,
warranty or condition required under Paragraph 8(i) or Paragraph 9 of the Loan
Agreement; or
(c) Default Under other Loan Documents. The occurrence of an event of
----------------------------------
default under any of the other Loan Documents and the same is not remedied
within the applicable period of grace (if any) provided in such Loan Document;
or
(d) Non-Performance of Other Covenants. The failure (other than as
----------------------------------
referred to in subparagraphs (a), (b) or (c) above) of Obligor or any Obligated
Party to timely and properly observe, keep or perform any
SECURITY AGREEMENT - Page 0
xxxxxxxx, xxxxxxxxx, xxxxxxxx or condition required herein or in any of the
other Loan Documents, and such failure remains unremedied for a period of
thirty (30) days after notice of such failure is given by Secured Party to
Obligor; or
(e) False Representation. Any representation contained herein or in any of
--------------------
the other Loan Documents made by Obligor or any Obligated Party is false or
misleading in any material respect; or
(f) Default to Third Party. The occurrence of any event which permits the
----------------------
acceleration of the maturity of any indebtedness owing by Obligor or any
Obligated Party to any third party under any agreement or undertaking; or
(g) Debtor's Bankruptcy or Insolvency. If Obligor or any Obligated Party:
---------------------------------
(i) becomes insolvent, or makes a transfer in fraud of creditors, or makes an
assignment for the benefit of creditors, or admits in writing its inability to
pay its debts as they become due; (ii) generally is not paying its debts as
such debts become due; (iii) has a receiver, trustee or custodian appointed
for, or take possession of, all or substantially all of the assets of such
party or any of the Collateral, either in a proceeding brought by such party or
in a proceeding brought against such party and such appointment is not
discharged or such possession is not terminated within sixty (60) days after
the effective date thereof or such party consents to or acquiesces in such
appointment or possession; (iv) files a petition for relief under the United
States Bankruptcy Code or any other present or future federal or state
insolvency, bankruptcy or similar laws (all of the foregoing hereinafter
collectively called "Applicable Bankruptcy Law") or an involuntary petition for
-------------------------
relief is filed against such party under any Applicable Bankruptcy Law and such
involuntary petition is not dismissed within sixty (60) days after the filing
thereof, or an order for relief naming such party is entered under any
Applicable Bankruptcy Law, or any composition, rearrangement, extension,
reorganization or other relief of debtors now or hereafter existing is
requested or consented to by such party; (v) fails to have discharged within a
period of sixty (60) days any attachment, sequestration or similar writ levied
upon any property of such party; or (vi) fails to pay within thirty (30) days
any final money judgment against such party.
(h) Execution on Collateral. The Collateral or any portion thereof is
-----------------------
taken on execution or other process of law in any action against Debtor; or
(i) Abandonment. Debtor abandons the Collateral or any portion thereof; or
-----------
(j) Action by Other Lienholder. The holder of any lien or security
--------------------------
interest on any of the assets of Debtor, including without limitation, the
Collateral (without hereby implying the consent of Secured Party to the
existence or creation of any such lien or security interest on the Collateral),
declares a default thereunder or institutes foreclosure or other proceedings
for the enforcement of its remedies thereunder;
(k) Liquidation, Death and Related Events. If Obligor or any Obligated
-------------------------------------
Party is an entity, the liquidation, dissolution, merger or consolidation of
any such entity or, if Obligor or any Obligated Party is an individual, the
death or legal incapacity of any such individual, or
(l) Search Report. Secured Party shall receive at any time following the
-------------
execution of this Agreement a search report indicating that Secured Party's
security interest in the Collateral is not prior to all other security
interests or other interests reflected in the report; or
(m) Possession of Installment Contracts. Any party other than Debtor,
-----------------------------------
Secured Party or a bailee of Secured Party is at any time in actual or
constructive possession of any of the Installment Contracts.
8. Remedies and Related Rights. If an Event of Default shall have
---------------------------
occurred, and without limiting any other rights and remedies provided herein,
under any of the other Loan Documents or otherwise available to Secured Party,
Secured Party may exercise one or more of the rights and remedies provided in
this Section.
SECURITY AGREEMENT - Page 9
(a) Remedies. Secured Party may from time to time at its discretion,
--------
without limitation and without notice, except as expressly provided in any of
the Loan Documents:
(i) exercise in respect of the Collateral all the rights and
remedies of a secured party under the Code (whether or not the Code applies
to the affected Collateral);
(ii) require Debtor to, and Debtor hereby agrees that it will at
its expense and upon request of Secured Party, assemble the Collateral as
directed by Secured Party and make it available to Secured Party at a place
to be designated by Secured Party which is reasonably convenient to both
parties;
(iii) reduce its claim to judgment or foreclose or otherwise
enforce, in whole or in part, the security interest granted hereunder by
any available judicial procedure;
(iv) sell or otherwise dispose of, at its office, on the premises
of Debtor or elsewhere, the Collateral, as a unit or in parcels, by public
or private proceedings, and by way of one or more contracts (it being
agreed that the sale or other disposition of any part of the Collateral
shall not exhaust Secured Party's power of sale, but sales or other
dispositions may be made from time to time until all of the Collateral has
been sold or disposed of or until the Indebtedness has been paid and
performed in full), and at any such sale or other disposition it shall not
be necessary to exhibit any of the Collateral;
(v) buy the Collateral, or any portion thereof, at any public
sale;
(vi) buy the Collateral, or any portion thereof, at any private
sale if the Collateral is of a type customarily sold in a recognized market
or is a type which is the subject of widely distributed standard price
quotations;
(vii) apply for the appointment of a receiver for the Collateral,
and Debtor hereby consents to any such appointment;
(viii) at its option, retain the Collateral in satisfaction of the
Indebtedness whenever the circumstances are such that Secured Party is
entitled to do so under the Code or otherwise, to the full extent permitted
by the Code, Secured Party shall be permitted to elect whether such
retention shall be in full or partial satisfaction of the Indebtedness;
and
(ix) cause the Successor Servicer to service Eligible Installment
Contracts (as such terms are defined in the Loan Agreement).
In the event Secured Party shall elect to sell the Collateral after the
occurrence of an Event of Default, Secured Party may sell the Collateral
without giving any warranties as and shall be permitted to specifically
disclaim any warranties of title or the like. Further, if Secured Party sells
any of the Collateral on credit, Debtor will be credited only with payments
actually made by the purchaser, received by Secured Party and applied to the
Indebtedness. In the event the purchaser fails to pay for the Collateral,
Secured Party may resell the Collateral and Debtor shall be credited with the
proceeds of the sale. Debtor agrees that in the event Debtor or any Obligor is
entitled to receive any notice under the Code, as it exists in the state
governing any such notice, of the sale or other disposition of any Collateral,
reasonable notice shall be deemed given when such notice is deposited in a
depository receptacle under the care and custody of the United States Postal
Service, postage prepaid, at such party's address set forth on the first page
hereof, ten (10) days prior to the date of any public sale, or after which a
private sale, of any of such Collateral is to be held. Secured Party shall not
be obligated to make any sale of Collateral regardless of notice of sale having
been given. "Secured Party 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.
SECURITY AGREEMENT - Page 10
(b) Application of Proceeds. If any Event of Default shall have occurred,
-----------------------
Secured Party may at its discretion apply or use any cash held by Secured Party
as Collateral, and any cash proceeds received by Secured Party in respect of
any sale or other disposition of, collection from, or other realization upon,
all or any part of the Collateral as follows in such order and manner as
Secured Party may elect:
(i) to the repayment or reimbursement of the reasonable costs and
expenses (including, without limitation, reasonable attorneys' fees and
expenses) incurred by Secured Party in connection with (A) the custody,
preservation, use or operation of, or the sale of, collection from, or
other realization upon, the Collateral, and (B) the exercise or enforcement
of any of the rights and remedies of Secured Party hereunder;
(ii) to the payment or other satisfaction of any liens and other
encumbrances upon the Collateral;
(iii) to the satisfaction of the Indebtedness;
(iv) by holding such cash and proceeds as Collateral;
(v) to the payment of any other amounts required by applicable law
(including without limitation, Section 9.615(a)(3) of the Code or any other
applicable statutory provision); and
(vi) by delivery to Debtor or any other party lawfully entitled to
receive such cash or proceeds whether by direction of a court of competent
jurisdiction or otherwise.
(c) Deficiency. In the event that the proceeds of any sale of, collection
----------
from, or other realization upon, all or any part of the Collateral by Secured
Party are insufficient to pay all amounts to which Secured Party is legally
entitled, Obligor and any party who guaranteed or is otherwise obligated to pay
all or any portion of the Indebtedness shall be liable for the deficiency,
together with interest thereon as provided in the Loan Documents, to the full
extent permitted by the Code.
(d) Non-Judicial Remedies. In granting to Secured Party the power to
---------------------
enforce its rights hereunder without prior judicial process or judicial
hearing, Debtor expressly waives, renounces and knowingly relinquishes, any
legal right which might otherwise require Secured Party to enforce its rights
by judicial process. Debtor recognizes and concedes that non-judicial remedies
are consistent with the usage of trade, are responsive to commercial necessity
and are the result of a bargain at arm's length. Nothing herein is intended to
prevent Secured Party or Debtor from resorting to judicial process at either
party's option.
(e) Other Recourse. Debtor waives any right to require Secured Party to
--------------
proceed against any third party, exhaust any Collateral or other security for
the Indebtedness, or to have any third party joined with Debtor in any suit
arising out of the Indebtedness or any of the Loan Documents, or pursue any
other remedy available to Secured Party. Debtor further waives any and all
notice of acceptance of this Agreement and of the creation, modification,
rearrangement, renewal or extension of the Indebtedness. Debtor farther waives
any defense arising by reason of any disability or other defense of any third
party or by reason of the cessation from any cause whatsoever of the liability
of any third party. Until all of the Indebtedness shall have been paid in fall,
Debtor shall have no right of subrogation and Debtor waives the right to
enforce any remedy which Secured Party has or may hereafter have against any
third party, and waives any benefit of and any right to participate in any
other security whatsoever now or hereafter held by Secured Party. Debtor
authorizes Secured Party, and without notice or demand and without any
reservation frights against Debtor and without affecting Debtor's liability
hereunder or on the Indebtedness to (i) take or hold any other property of any
type from any third party as security for the Indebtedness, and exchange,
enforce, waive and release any or all of such other property, (ii) apply such
other property and direct the order or manner of sale thereof as Secured Party
may in its discretion determine, (iii) renew, extend, accelerate, modify,
compromise, settle or release any of the
SECURITY AGREEMENT - Page 11
Indebtedness or other security for the Indebtedness, (iv) waive, enforce or
modify any of the provisions of any of the Loan Documents executed by any third
party, and (v) release or substitute any third party.
9. Indemnity. As provided in the Code, Debtor hereby indemnifies and
---------
agrees to hold harmless Secured Party, and its officers, directors, employees,
agents and representatives (each an "Indemnified Person") from and against any
------------------
and all liabilities, obligations, claims, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
(collectively, the "Claims") which may be imposed on, incurred by, or asserted
------
against, any Indemnified Person arising in connection with the Loan Documents,
the Indebtedness or the Collateral (including without limitation, the
enforcement of the Loan Documents and the defense of any Indemnified Person's
actions and/or inactions in connection with the Loan Documents) WHETHER OR
NOT THE CLAIMS ARE IN ANY WAY OR TO ANY EXTENT OWED, IN WHOLE OR IN PART, UNDER
ANY CLAIM OR THEORY OF STRICT LIABILITY OR ARE CAUSED BY OR ARISE OUT OF SUCH
INDEMNIFIED PERSON'S OWN NEGLIGENCE, except to the extent such Claims are
proximately caused by such Indemnified Person's individual gross negligence or
willful misconduct The indemnification provided for in this Section shall
survive the termination of this Agreement and shall extend and continue to
benefit each individual or entity who is or has at any time been an Indemnified
Person hereunder.
10. Miscellaneous.
-------------
(a) Entire Agreement. This Agreement contains the entire agreement of
----------------
Secured Party and Debtor with respect to the Collateral. If the parties hereto
are parties to any prior agreement, either written or oral, relating to the
Collateral, the terms of this Agreement shall amend and supersede the terms of
such prior agreements as to transactions on or after the effective date of this
Agreement, but all security agreements, financing statements, guaranties, other
contracts and notices for the benefit of Secured Party shall continue in fall
force and effect to secure the Indebtedness unless Secured Party specifically
releases its rights thereunder by separate release.
(b) Amendment. No modification, consent or amendment of any provision of
---------
this Agreement or any of the other Loan Documents shall be valid or effective
unless the same is authenticated by the party against whom it is sought to be
enforced, except to the extent of amendments specifically permitted by the Code
without authentication by the Debtor or Obligor.
(c) Actions by Secured Party. The lien, security interest and other
------------------------
security rights of Secured Party hereunder shall not be impaired by (i) any
renewal, extension, increase or modification with respect to the Indebtedness,
(H) any surrender, compromise, release, renewal, extension, exchange or
substitution which Secured Party may grant with respect to the Collateral, or
(iii) any release or indulgence granted to any endorser, guarantor or surety of
the Indebtedness. The taking of additional security by Secured Party shall not
release or impair the lien, security interest or other security rights of
Secured Party hereunder or affect the obligations of Debtor hereunder.
(d) Waiver by Secured Party. Secured Party may waive any Event of Default
-----------------------
without waiving any other prior or subsequent Event of Default. Secured Party
may remedy any default without waiving the Event of Default remedied. Neither
the failure by Secured Party to exercise, nor the delay by Secured Party in
exercising, any right or remedy upon any Event of Default shall be construed as
a waiver of such Event of Default or as a waiver of the right to exercise any
such right or remedy at a later date. No single or partial exercise by Secured
Party of any right or remedy hereunder shall exhaust the same or shall preclude
any other or further exercise thereof, and every such right or remedy hereunder
may be exercised at any time. No waiver of any provision hereof or consent to
any departure by Debtor therefrom shall be effective unless the same shall be
in writing and signed by Secured Party and then such waiver or consent shall be
effective only in the specific instances, for the purpose for which given and
to the extent therein specified. No notice to or demand on Debtor in any case
shall of itself entitle Debtor to any other or further notice or demand in
similar or other circumstances.
SECURITY AGREEMENT - Page 12
(e) Costs and Expenses. Debtor will upon demand pay to Secured Party the
------------------
amount of any and all costs and expenses (including without limitation,
reasonable attorneys' fees and expenses), which Secured Party may incur in
connection with (i) the preparation of this Agreement and the perfection and
preservation of the security interests granted under the Loan Documents, (11)
the custody, preservation, use or operation of, or the sale of, collection
from, or other realization upon, the Collateral, (iii) the exercise or
enforcement of any of the rights of Secured Party under the Loan Documents, or
(iv) the failure by Debtor to perform or observe any of the provisions hereof.
(f) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
-------------
ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS AND APPLICABLE FEDERAL LAWS,
EXCEPT TO THE EXTENT PERFECTION AND THE EFFECT OF PERFECTION OR NON-PERFECTION
OF THE SECURITY INTEREST GRANTED HEREUNDER, IN RESPECT OF ANY PARTICULAR
COLLATERAL, ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF
TEXAS.
(g) Venue. This Agreement has been entered into in the county in Texas
-----
where Secured Party's address for notice purposes is located, and it shall be
performable for all purposes in such county. Courts within the State of Texas
shall have jurisdiction over any and all disputes arising under or pertaining
to this Agreement and venue for any such disputes shall be in the county or
judicial district where this Agreement has been executed and delivered.
(h) Severability. If any provision of this Agreement is held by a court of
------------
competent jurisdiction to be illegal, invalid or unenforceable under present or
future laws, such provision shall be fully severable, shall not impair or
invalidate the remainder of this Agreement and the effect thereof shall be
confined to the provision held to be illegal, invalid or unenforceable.
(i) No Obligation. Nothing contained herein shall be construed as an
-------------
obligation on the part of Secured Party to extend or continue to extend credit
to Obligor.
(j) Notices. All notices, requests, demands or other communications
-------
required or permitted to be given pursuant to this Agreement shall be in
writing and given by (i) personal delivery, (ii) expedited delivery service
with proof of delivery, or (iii) United States mail, postage prepaid,
registered or certified mail, return receipt requested, sent to the intended
addressee at the address set forth on the first page hereof or to such
different address as the addressee shall have designated by written notice sent
pursuant to the terms hereof and shall be deemed to have been received either,
in the case of personal delivery, at the time of personal delivery, in the case
of expedited delivery service, as of the date of first attempted delivery at
the address and in the manner provided herein, or in the case of mail, upon
deposit in a depository receptacle under the care and custody of the United
States Postal Service. Either party shall have the right to change its address
for notice hereunder to any other location within the continental United States
by notice to the other party of such new address at least thirty (30) days
prior to the effective date of such new address.
(k) Binding Effect and Assignment. This Agreement (i) creates a continuing
-----------------------------
security interest in the Collateral, (ii) shall be binding on Debtor and the
heirs, executors, administrators, personal representatives, successors and
assigns of Debtor, and (iii) shall inure to the benefit of Secured Party and
its successors and assigns. Without limiting the generality of the foregoing,
Secured Party may pledge, assign or otherwise transfer the indebtedness and its
rights under this Agreement and any of the other Loan Documents to any other
party. Debtor's rights and obligations hereunder may not be assigned or
otherwise transferred without the prior written consent of Secured Party.
(l) Cumulative Rights. All rights and remedies of Secured Party hereunder
-----------------
are cumulative of each other and of every other right or remedy which Secured
Party may otherwise have at law or in equity or under any of the other Loan
Documents, and the exercise of one or more of such rights or remedies shall not
prejudice or impair the concurrent or subsequent exercise of any other rights
or remedies. Further, except as
SECURITY AGREEMENT - Page 13
specifically noted as a waiver herein, no provision of this Agreement is
intended by the parties to this Agreement to waive any rights, benefits or
protection afforded to Secured Party under the Code.
(m) Gender and Number. Within this Agreement, words of any gender shall be
-----------------
held and construed to include the other gender, and words in the singular
number shall be held and construed to include the plural and words in the
plural number shall be held and construed to include the singular, unless in
each instance the context requires otherwise.
(n) Descriptive Headings. The headings in this Agreement are for
--------------------
convenience only and shall in no way enlarge, limit or define the scope or
meaning of the various and several provisions hereof.
EXECUTED as of the date first written above.
DEBTOR: SECURED PARTY:
------ -------------
FIRST CONSUMER CREDIT, INC. THE FROST NATIONAL BANK,
a national banking association
By:____________________________________ By:______________________________
Printed Name:________________________ Printed Name: Xxxxx Xxxxxx
Title:_______________________________ Title: Assistant Vice President
SECURITY AGREEMENT - Page 14
