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EXHIBIT 4.8
TRANSAMERICAN REFINING CORPORATION
SECURITY AND PLEDGE AGREEMENT
by
TRANSAMERICAN REFINING CORPORATION
in favor of
TRANSAMERICAN ENERGY CORPORATION
Dated as of June 13, 1997
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TRANSAMERICAN REFINING CORPORATION
SECURITY AND PLEDGE AGREEMENT
This Security and Pledge Agreement (this "Agreement") is made and
entered into as of June 13, 1997 by TransAmerican Refining Corporation, a Texas
corporation (the "Company"), in favor of TransAmerican Energy Corporation (the
"Lender").
RECITALS
WHEREAS, the Company has entered into that certain Loan Agreement
dated as of June 13, 1997 (the "TARC Intercompany Loan Agreement") executed by
the Company in favor of the Lender; and
WHEREAS, the Company's obligations under the TARC Intercompany
Loan Agreement are further evidenced by that certain promissory note in the
amount of $920,000,000 dated as of June 13, 1997 (the "TARC Intercompany
Note"), and executed by the Company in favor of the Lender; and
WHEREAS, the obligations of the Company under the TARC
Intercompany Note and the TARC Intercompany Loan Agreement are secured by that
certain Act of Mortgage, Security Agreement and Financing Statement dated as of
June 13, 1997 (the "TARC Mortgage"); and
WHEREAS, in order to secure the payment and performance in full
of the obligations of the Company under the TARC Intercompany Loan Agreement,
the parties hereto desire to set forth their mutual understanding and certain
agreements regarding the terms and conditions of the grant of a security
interest in the Company UCC Collateral, the Assigned Collateral and the Pledged
Collateral (as defined below);
NOW, THEREFORE, for good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the Company and the Lender
hereby agree as follows:
Section 1. Definitions.
(a) As used in this Agreement, capitalized terms not otherwise
defined herein have the meanings set forth in the TARC Intercompany Loan
Agreement, and the following terms shall have the respective meanings
set forth below (such meanings to be equally applicable to both the
singular and plural forms of the terms defined):
"Assigned Collateral" shall have the meaning assigned to that
term in Section 2 of this Agreement.
"Collateral" shall have the meaning assigned to that term in
Section 2 of this Agreement.
"Default" and "Event of Default" shall have the meanings assigned
to those terms in Section 6(a) of this Agreement.
"Disbursement Account" means the account or accounts owned by the
Company and created by that certain Disbursement Agreement by and among
the Company, the Lender, the disbursement agent named therein, or its
successor, and the construction supervisor named therein, as amended
pursuant to the terms thereof.
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"Equipment" shall mean and include all now owned or hereafter
acquired Vehicles, rolling stock and related equipment and other assets
accounted for as equipment by the Company in its financial statements,
all proceeds thereof, and all documents of title, books, records, ledger
cards, files, correspondence and computer files, tapes, disks and
related data processing software that at any time evidence or contain
information relating to the foregoing; provided, however, that
"Equipment" shall not include any assets constituting part of the
Company's refinery or used in the Company's processing or storage
operations.
"GAAP" means generally accepted accounting principles of the
United States of America, consistently applied.
"Obligations" shall have the meaning assigned to that term in
Section 2 of this Agreement.
"Indebtedness" means the following indebtedness and liabilities
of the Company (and any extensions, renewals, refunding, increases,
substitutions, replacements, consolidations, modifications or
rearrangements of such indebtedness and liabilities, regardless of
whether the Company executes any extension agreement or renewal
instrument):
(i) all amounts advanced or expended by the Lender
under the TARC Intercompany Loan Agreement and/or under or in
connection with this Agreement, all reasonable costs and out-of-
pocket expenses (excluding expenses representing administrative
overhead) at any time and from time to time incurred by the
Lender in connection with the administration and/or enforcement
of this Agreement (including, without limitation, the reasonable
fees and out-of-pocket expenses of counsel employed by the Lender
in connection therewith), and all indemnities at any time and
from time to time payable hereunder to the Lender, and
(ii) all principal, premium and accrued interest owing
on the TARC Intercompany Note, and
(iii) all other amounts payable by the Company under the
TARC Intercompany Loan Agreement.
"Inventory" shall mean and include, feedstocks, refined products,
chemicals and catalysts, other supplies and storeroom items and similar
items accounted for as inventory by the Company on its financial
statements, all proceeds thereof, and all documents of title, books,
records, ledger cards, files, correspondence, and computer files, tapes,
disks and related data processing software that at any time evidence or
contain information relating to the foregoing.
"Pledged Collateral" shall have the meaning assigned to that term
in Section 2 of this Agreement.
"Receivables" shall mean and include, any and all now owned or
hereafter acquired "accounts" as such term is defined in Article 9 of
the Uniform Commercial Code in the State of New York, all products and
proceeds thereof, and all books, records, ledger cards, files,
correspondence, and computer files, tapes, disks or software that at any
time evidence or contain information relating to the foregoing.
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"UCC" means the Uniform Commercial Code as in effect in the State
of New York.
"Vehicles" means all trucks, automobiles, trailers and other
vehicles covered by a certificate of title.
(b) All terms used in this Agreement which are defined in the
UCC, other than those which are defined in the Indenture or specifically
defined in Section 1(a) above, shall have the same meaning herein as in
the UCC.
Section 2. Grant of Security Interest.
(a) The Company hereby grants to the Lender, to secure the
payment and performance in full of the Obligations, a security interest
in and a lien on and so pledges and assigns to the Lender all of the
Company's right, title and interest in, to and under any and all of the
following described property, assets and rights, in each case, wherever
located, whether now owned or hereafter acquired or arising, all
accessions and additions thereto, all substitutions and replacements
therefor, and all proceeds and products thereof and assigns all rights
in and to all collateral securing the following described property,
assets and rights:
(i) all personal and fixture property of every kind and
nature including, without limitation, all furniture, fixtures,
raw materials, goods, contract rights, rights to the payment of
money, insurance refund claims and all other insurance claims and
proceeds, tort claims, chattel paper, documents, instruments
(including certificated securities), deposit accounts and all
general intangibles including, without limitation, all
uncertificated securities, tax refund claims, license fees,
patents, patent applications, trademarks, trademark applications,
trade names, copyrights, copyright applications, rights to ▇▇▇
and recover for past infringement of patents, trademarks and
copyrights, computer programs, computer software, engineering
drawings, service marks, customer lists, goodwill, and all
licenses, permits, agreements of any kind or nature pursuant to
which the Company possesses, uses or has authority to possess or
use property (whether tangible or intangible) of others or others
possess, use or have authority to possess or use property
(whether tangible or intangible) of the Company, and all recorded
data of any kind or nature, regardless of the medium of recording
including, without limitation, all software, writings, plans,
specifications and schematics (any and all such property being
the "Company UCC Collateral"); provided, however, that nothing
herein shall be construed to include within and there is
expressly excluded from, the Company UCC Collateral, any now
owned or hereafter acquired Equipment, Inventory or Receivables .
(b) The Company also pledges to the Lender, and grants to the
Lender a security interest in all of the Company's right, title and
interest in, to and under any and all of the following described
property, rights and interests, in each case, wherever located, whether
now owned or hereafter acquired or arising, all accessions and additions
thereto, all substitutions and replacements therefor, and all proceeds
and products thereof (collectively, the "Pledged Collateral"):
(i) all of the issued and outstanding shares of common
stock identified on Schedule 2(b) attached hereto of any other
subsidiary of the Company presently existing or hereafter created
or acquired (the "Pledged Subsidiaries") therein set forth;
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(ii) all other shares of common stock or other equity
securities now or hereafter acquired by the Company in any manner
issued by the Pledged Subsidiaries, and the certificates
representing such securities, and any present or future options,
warrants or other rights to subscribe for or purchase any
property described in Schedule 2(b)(i) or any notes, bonds,
debentures or other evidences of indebtedness now or hereafter
owned or acquired by the Company in any manner that (A) are at
any time convertible, exchangeable or exercisable into capital
stock or other equity securities of the Pledged Subsidiaries or
(B) have or at any time could by their terms have voting rights
with respect to any matter affecting the Pledged Subsidiaries and
all securities, certificates and instruments representing or
evidencing ownership of any of the property described in Schedule
2(b) hereof; and
(iii) all proceeds and products of the foregoing and
distributions thereof or with respect thereto, including without
limitation dividends, distributions, cash, instruments and other
property or securities, now or hereafter at any time or from time
to time received or receivable or otherwise distributed or
distributable in respect of or in exchange for any or all of the
foregoing.
(c) The Company hereby also assigns to the Lender and grants
to the Lender a security interest in, pledge of and lien on, the
Disbursement Account and all investments, securities, financial assets
credited thereto and security entitlements with respect thereto and all
certificates and instruments, if any, from time to time representing or
evidencing the Disbursement Account or any property credited thereto,
whether now owned by the Company or existing or hereafter acquired,
created or arising including the proceeds thereof (the "Assigned
Collateral" and, together with the Company UCC Collateral and the
Pledged Collateral, the "Collateral").
Subject to any Permitted Liens, pursuant to the terms
hereof, the Company has endorsed, assigned and delivered to the Lender
or such other Person that the Lender has designated as its agent to hold
for perfection purposes all negotiable or non-negotiable instruments
(including certificated securities) and chattel paper pledged by it
hereunder, together with instruments of transfer or assignment duly
executed in blank as the Lender may have specified. In the event that
the Company shall, after the date of this Agreement, acquire any other
negotiable or non-negotiable instruments (including certificated
securities) or chattel paper to be pledged by it hereunder, the Company
shall, subject to Permitted Liens, forthwith endorse, assign and deliver
the same to the Lender, accompanied by such instruments of transfer or
assignment duly executed in blank as the Lender may from time to time
specify. To the extent that any securities are uncertificated,
appropriate book-entry transfers reflecting the pledge of such
securities created hereby have been or, in the case of uncertificated
securities hereafter acquired by the Company, will at the time of such
acquisition be, duly made for the account of the Lender or one or more
nominees of the Lender with the issuer of such securities or other
appropriate book-entry facility or financial intermediary, with the
Lender having at all times the right to obtain definitive certificates
(in the Lender's name or in the name of one or more nominees of the
Lender) where the issuer customarily or otherwise issues certificates,
all to be held as Collateral hereunder. The Company hereby acknowledges
that the Lender may, in its discretion, appoint one or more financial
institutions to act as the Lender's agent in holding in custodial
accounts instruments or other financial assets, including securities, in
which the Lender is granted a security interest hereunder, including,
without limitation, certificates of deposit and other instruments
evidencing short term obligations.
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(d) The inclusion of proceeds in this Agreement does not
authorize the Company to sell, dispose of or otherwise use the
Collateral in any manner not specifically authorized hereby or under the
Indenture.
(e) This Agreement secures the prompt and complete (i) payment
of all obligations of the Company to the Lender under the TARC
Intercompany Note, whether such obligations are now existing or
hereafter arising, and all renewals, extensions, amendments, supplements
and rearrangements thereof and (ii) payment and performance of all
covenants and conditions by the Company contained herein and in the TARC
Intercompany Loan Agreement in each case whether for principal,
interest, prepayment premium, taxes, costs, losses, compensation,
reimbursements, fees, expenses or any other amount payable to the Lender
under the terms of this Agreement (all such obligations, covenants and
conditions described in the foregoing clauses (i) and (ii) being
hereinafter collectively referred to as the "Obligations").
(f) Notwithstanding anything herein to the contrary, the stock
of any Unrestricted Subsidiary shall not constitute Collateral
hereunder.
Section 3. Representations and Warranties. The Company represents and
warrants, as of the date hereof, to the Lender as follows:
(a) The chief executive office and principal place of business
of the Company is located at ▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇. Any and all Collateral not
delivered to the Lender or its designated agent is and will continue to
be located only in the States of Texas and Louisiana.
(b) The Company is the legal and beneficial owner of all of
the Collateral free and clear of any lien, security interest, charge or
encumbrance of any kind or nature, except for the lien and security
interest created hereby and for Permitted Liens, and has not made any
other pledge, assignment, mortgage, hypothecation or transfer of the
Collateral except as permitted hereunder or under the TARC Intercompany
Loan Agreement. Except for the lien and security interest created
hereby, all of the Collateral is free from any material credit,
deduction, allowance, defense, dispute, setoff or counterclaim and there
is no material extension or indulgence with respect thereto. The
Pledged Collateral is not subject to any put, call, option or other
right in favor of any other person whatsoever.
(c) The Pledged Collateral is accurately described in Schedule
2(b) hereto and has been duly authorized and validly issued and non-
assessable.
(d) This Agreement has been duly executed and delivered by the
Company and creates a valid security interest in, and lien on, the
Collateral securing the payment of the Indebtedness. Upon the delivery
of physical certificates evidencing the Pledged Collateral to the Lender
or its designated agent and the making of the filings and the taking of
all other actions necessary to perfect the security interests created
hereby, including, without limitation, those actions specified in
Section 2(b) and Section 4, the security interests created by this
Agreement will be duly perfected security interests subject to no equal
or prior lien, security interest or encumbrance of any kind or nature
other than Permitted Liens.
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(e) The Company has the requisite corporate power and
authority to pledge the Collateral in the manner hereby done or
contemplated and to defend its title thereto against the lawful claims
of all persons whomsoever.
(f) Neither the execution and delivery of this Agreement by
the Company, the performance by the Company of its obligations
hereunder, nor the transactions herein contemplated will (i) violate the
Company's charter or bylaws, (ii) violate the terms of any agreement,
indenture, mortgage, deed of trust, equipment lease, instrument or other
document to which the Company is a party, (iii) violate any law, order,
rule or regulation applicable to the Company of any court or any
government, regulatory body or administrative agency or other
governmental body having jurisdiction over the Company or its
properties, or (iv) result in or require the creation or imposition of
any lien (other than the lien contemplated hereby), upon or with respect
to any of the property now owned or hereafter acquired by the Company,
which violation or conflict would have a material adverse effect on the
financial condition, business, assets or liabilities of the Company or
on the value of the Collateral or a material adverse effect on the
security interests hereunder.
(g) The Pledged Collateral includes the issued and outstanding
shares of Common Stock of the Pledged Subsidiaries as described in
Schedule 2(b) attached hereto, and as of the date of execution hereof,
there are no outstanding options, warrants or other rights to subscribe
for or purchase any property described in Schedule 2(b) or any notes,
bonds, debentures or other evidences of indebtedness that (i) are at any
time convertible into capital stock of the Pledged Subsidiaries or (ii)
have or at any time could by their terms have voting rights with respect
to any matters affecting the Pledged Subsidiaries.
(h) No consent or approval which has not been obtained prior
to the date hereof of any other person or entity and no authorization,
approval or other action (other than delivery of physical certificates
evidencing the Pledged Collateral) by, and no notice to or filing with
any governmental body (other than UCC filings), regulatory authority or
securities exchange, was or is necessary as a condition to the validity
of the pledge hereunder of the Collateral, and such pledge is effective
to vest in the Lender the rights of the Lender in the Collateral as set
forth herein. There are no restrictions on the transferability of any
of the Collateral transferred or delivered by the Company hereunder or,
except for restrictions related to federal and state securities laws
governing the sale of "restricted stock" or "control stock," with
respect to the foreclosure, transfer or disposition thereof by the
Lender.
Section 4.Covenants. During the term of this Agreement and until all
the Obligations with respect to the Indebtedness have been fully and finally
paid and discharged in full, the Company covenants and agrees with the Lender
that:
(a) Except as permitted by the TARC Intercompany Loan
Agreement or in the ordinary course of business, the Company will not
make any compromise or settlement with respect to the Collateral without
notice to or consent of the Lender.
(b) The Company shall deliver to the Lender or its designated
agent concurrently with the execution of this Agreement or, to the
extent acquired subsequent to the date of execution hereof, including
without limitation Pledged Collateral issued by a newly created or
acquired Subsidiary, immediately upon the Company's acquisition thereof:
(i) all certificates and instruments representing the Pledged Collateral
and a revised Schedule 2(b), and (ii) all
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certificates and instruments representing each other item of Collateral
(including all certificates, instruments and notes representing any such
Company UCC Collateral). Any and all Pledged Collateral delivered to
the Lender or its designated agent shall be accompanied by undated duly
executed powers in blank and by such other instruments of transfer or
documents as the Lender may reasonably request. The Lender may hold the
certificates representing the Pledged Collateral delivered to it in its
own name or in the name of its nominee, all in form and substance
satisfactory to the Lender.
(c) From time to time, the Company shall, at its own expense,
promptly give, execute, deliver, file and/or otherwise formalize any
such notice, statement, instrument, document, agreement or other papers,
and do all such other acts and things, as may be necessary or desirable,
or as the Lender may reasonably request, in order to create, evidence,
preserve, perfect, validate or continue any lien or security interest
created pursuant to this Agreement or to enable the Lender to exercise
or enforce its rights hereunder with respect to such lien or security
interest, or otherwise further to effect the purposes of this Agreement.
Without limiting the generality of the foregoing, the Company shall, at
any time or from time to time upon the request of the Lender and at the
Company's own expense, execute, acknowledge, witness, deliver, file
and/or record such financing and continuation statements, notices,
additional assignments and other documents or instruments (all of which
shall be in form and substance satisfactory to the Lender and its
counsel) as the Lender may from time to time reasonably request for the
perfection of the liens and security interests created hereby.
(d) The Company shall promptly notify the Lender (i) of any
material changes in any fact or circumstance represented or warranted by
the Company with respect to any material portion of the Collateral, (ii)
of any material impairment of the Collateral and (iii) of any claim,
action or proceeding affecting title to all or any of the Collateral.
(e) Except for the liens and security interests created by
this Agreement and the Permitted Liens in the Collateral, the Company
shall at its own expense defend the Collateral against any and all
liens, claims, security interests and other encumbrances or interests,
howsoever arising and shall maintain and preserve the security interest
granted hereunder with respect to the Collateral as long as this
Agreement shall remain in full force and effect. The Company shall not
make any other pledge, assignement, mortgage, hypothecation or transfer
of the Collateral except as permitted hereunder or under the TARC
Intercompany Loan Agreement.
(f) The Company shall at all times keep accurate and complete
records with respect to the Collateral, including, without limitation,
records of all payments made, credit granted and proceeds received in
connection therewith.
(g) The Company shall not relocate its principal place of
business or chief executive office to a county or state other than that
specified in Section 3(a) of this Agreement unless the Company gives 30
days' prior written notice to the Lender, which notice shall specify the
county and state into which such relocation is to be made. The
Collateral, to the extent not delivered to the Lender pursuant to
Section 2, will be kept at those locations listed on the Perfection
Certificate delivered to the Lender herewith in the form attached as
Exhibit A hereto and the Company will not remove the Collateral from
such locations, without providing at least 30 days' prior written notice
to the Lender.
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(h) The Company will keep the Collateral in good order and
repair, except in situations where not to do so would not be material,
and will not use the same in violation of law or any policy of insurance
thereon. The Lender, or its designee, may inspect the Collateral at any
reasonable time, wherever located.
(i) The Lender, or its representative, shall at all times have
full and free access during normal business hours to all of the books,
correspondence and records of the Company relating to the Collateral
(other than information that is privileged and confidential) and the
Lender and its representatives may examine the same, make abstracts
therefrom and make photocopies thereof, and the Company agrees to render
to the Lender, at the Company's cost and expense, such clerical and
other assistance as may be reasonably requested by the Lender with
regard thereto.
(j) The Company shall not permit any of the Pledged
Subsidiaries to issue to the Company any securities of the type required
to be pledged hereunder unless such securities are promptly pledged and
delivered hereunder to the Lender or its designated agent in accordance
with Section 2(b).
(k) If, while this Agreement is in effect, any stock dividend,
stock split, reclassification, readjustment, reorganization, merger,
consolidation, exchange offer, tender offer or other change in the
capital structure, including the creation of any subscription or other
rights relating to the Pledged Collateral, is declared or made, or
proposed to be declared or made, by any of the Pledged Subsidiaries or
any other issuer of the Collateral, all substituted and additional
securities or interest issued with respect to the Collateral and
evidenced by certificates shall be endorsed in blank by the Company
promptly upon receipt thereof or otherwise appropriately transferred to
the Lender in negotiable form, and all certificates or instruments
evidencing such securities shall be delivered to the Lender to be held
under the terms of this Agreement in the same manner as, and as a part
of, the Collateral. All Pledged Collateral shall be evidenced by one or
more certificates. Any securities that may be issued upon exercise of
any subscription or other rights relating to the Pledged Collateral
shall be endorsed in blank and delivered to the Lender with any
necessary powers.
Section 5. Powers of the Secured Party.
(a) The Company hereby irrevocably designates and appoints the
Lender as its attorney-in-fact, with full power of substitution, for the
purposes of carrying out the provisions of this Agreement and taking any
action and executing any instrument, including,without limitation, any
financing statement or continuation statement, and taking any other
action to maintain the validity, perfection, priority and enforcement of
the security interest intended to be created hereunder, that the Lender
may reasonably deem necessary or advisable to accomplish the purposes
hereof, which appointment as attorney-in-fact is irrevocable and coupled
with an interest.
(b) Without limiting the generality of Section 5(a) hereof,
the Company hereby irrevocably authorizes and empowers the Lender, upon
the occurrence and during the continuation of any Event of Default, at
the expense of the Company, either in the Lender's own name or in the
name of the Company, at any time and from time to time:
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(i) to ask, demand, receive, issue a receipt for, give
acquittance for, settle and compromise any and all monies which
may be or become due or payable or remain unpaid at any time or
times to the Company, and any and all other property which may be
or become deliverable at any time or times to the Company, under
or with respect to the Collateral;
(ii) to endorse any drafts, checks, orders or other
instruments for the payment of money payable to the Company on
account of the Collateral (including any such draft, check, order
or instrument issued by any insurance company payable jointly to
the Company and the Lender); and
(iii) to settle, compromise, prosecute or defend any
action, claim or proceeding, or take any other action, all either
in its own name or in the name of the Company or otherwise, which
the Lender may deem to be necessary or advisable for the purpose
of exercising and enforcing its powers and rights under this
Agreement or in furtherance of the purposes hereof, including any
action which by the terms of this Agreement is to be taken by the
Company.
(c) Nothing in this Agreement shall be construed as requiring
or obligating the Lender to make any commitment or to make any inquiry
as to the nature or sufficiency of any payment received by it, or to
present or file any claim or notice, or to take any other action with
respect to any of the Collateral or any part thereof or the amounts due
or to become due in respect thereof or any property covered thereby, or
to collect or enforce the payment of any amounts assigned to it or to
which it may otherwise be entitled hereunder at any time or times other
than to account for amounts or Collateral received.
(d) The Lender shall be entitled at any time to file this
Agreement, or a carbon, photographic or any other reproduction of this
Agreement, as a financing statement, but the failure of the Lender to do
so shall not impair the validity or enforceability of this Agreement.
The Lender shall have no duty to comply with any recording, filing or
other legal requirements necessary to establish or maintain the
validity, priority or enforceability of, or the Lender's rights in or
to, any of the Collateral.
(e) In its discretion, the Lender may discharge taxes and
other encumbrances at any time levied or placed on any of the
Collateral, make repairs thereto and pay any necessary filing fees. The
Company agrees to reimburse the Lender on demand for any and all
reasonable expenditures so made with interest on unpaid amounts at the
maximum rate permitted by law. The Lender shall have no obligation to
the Company to make any such expenditures, nor shall the making thereof
relieve the Company of any default.
(f) Anything herein to the contrary notwithstanding, the
Company shall remain liable under each contract or agreement comprised
in the Collateral to be observed or performed by the Company thereunder.
The Lender shall not have any obligation or liability under any such
contract or agreement by reason of or arising out of this Agreement or
the receipt by the Lender of any payment relating to any of the
Collateral, nor shall the Lender be obligated in any manner to perform
any of the obligations of the Company under or pursuant to any such
contract or agreement, to make inquiry as to the nature or sufficiency
of any payment received by the Lender in respect of the Collateral or as
to the sufficiency of any performance by any party under any such
contract or agreement, to present or file any claim, to take any action
to enforce any
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performance or to collect the payment of any amounts which may have been
assigned to the Lender or to which the Lender may be entitled at any
time or times other than to account for amounts or Collateral received,
and no action taken or omitted shall give rise to any defense,
counterclaim or right of action against the Lender, unless the Lender's
actions are taken or omitted to be taken with gross negligence or bad
faith or constitute willful misconduct. The Lender's sole duty with
respect to the custody, safe keeping and physical preservation of the
Collateral in its possession, under Section 9-207 of the UCC or
otherwise, shall be to deal with such Collateral in the same manner as
the Lender deals with similar property for its own account.
(g) If an Event of Default has occurred and is continuing, the
Lender may at any time, at its option, transfer to itself or any nominee
any securities constituting the Pledged Collateral, receive any income
thereon and hold such income as additional Collateral or apply it to the
Indebtedness. Regardless of whether any Indebtedness is due, the Lender
may demand, ▇▇▇ for, collect, or make any settlement or compromise which
it deems desirable with respect to the Collateral. Regardless of the
adequacy of Collateral or any other security for the Indebtedness, any
deposits or other sums at any time credited by or due from the Lender to
the Company may at any time be applied to or set off against any of the
Indebtedness.
(h) If an Event of Default shall have occurred and be
continuing, the Company shall, at the request of the Lender, notify
obligors on chattel paper and general intangibles of the Company and
obligors on instruments for which the Company is an obligee of the
security interest of the Lender in any chattel paper, general intangible
or instrument and that payment thereof is to be made directly to the
Lender or to any financial institution designated by the Lender as the
Lender's agent therefor, and the Lender may itself, if an Event of
Default shall have occurred and be continuing, without notice to or
demand upon the Company, so notify said obligors. After the making of
such a request or the giving of any such notification, the Company shall
hold any proceeds of collection of chattel paper, general intangibles
and instruments received by the Company as trustee for the Lender
without commingling the same with other funds of the Company and shall
turn the same over to the Lender in the identical form received,
together with any necessary endorsements or assignments. The Lender
shall apply the proceeds of collection of chattel paper, general
intangibles and instruments received by the Lender to the Indebtedness,
such proceeds to be immediately entered after final payment in cash of
the items giving rise to them.
Section ▇.▇▇▇▇▇▇ Rights, Dividends, Etc.
(a) Until an Event of Default shall have occurred and be
continuing:
(i) except as otherwise provided in this Agreement, the
Company shall be entitled to exercise any and all voting or
consensual rights and powers, including subscription rights, in
relation to the Pledged Collateral; provided, however, that no
vote shall be cast or consent, waiver or ratification given or
action taken which would materially impair the securities or the
value thereof or violate any provision of this Agreement, the
Indenture or any other ancillary document;
(ii) except as otherwise provided in this Agreement, the
Company shall be entitled to receive and retain any and all
dividends, distributions or other payments in respect of the
Pledged Collateral and the Lender, upon receipt of any of the
foregoing, shall promptly pay or distribute the same to the
Company, and, to the extent so
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permitted, any distributions received by the Company and
transferred to other persons shall pass free and clear of the
lien and security interest hereof; and
(iii) the Lender shall execute and deliver to the Company
or cause to be executed and delivered to the Company, all such
proxies, powers of attorney, dividend orders and other
instruments as the Company may reasonably request for the purpose
of enabling it to exercise the voting or consensual rights and
powers which the Company is entitled to exercise pursuant to the
foregoing Section 6(a)(i) or to receive the dividends,
distributions or other payments which the Company is authorized
to retain pursuant to the foregoing Section 6(a)(ii).
(b) Upon the occurrence and during the continuance of an Event
of Default, all rights of the Company to exercise the voting or
consensual rights and powers which the Company would otherwise be
entitled to exercise pursuant to Section 6(a)(i) and to receive the
dividends, distributions and other payments which the Pledgor would
otherwise be authorized to receive and retain pursuant to Section
6(a)(ii) shall automatically cease, and all such rights shall thereupon
become vested in the Lender, which shall then have the sole and
exclusive right and authority to exercise, in its sole discretion, all
such voting and consensual rights and powers and to receive and retain
as Collateral all such dividends, distributions and other payments.
Without limiting the foregoing, in such event the Lender may exercise
all voting and corporate rights at any meeting of any corporation
issuing any such securities and any and all rights of conversion,
exchange, subscription or any other rights, privileges or options
pertaining to any such securities as if it were the absolute owner
thereof, including, without limitation, the rights to exchange at its
discretion, any and all such securities upon the merger, consolidation,
reorganization, recapitalization or other readjustment of any
corporation issuing any such securities or upon the exercise by any such
issuer or the Lender of any right, privilege or option pertaining to any
such securities, and, in connection therewith, to deposit and deliver
any and all securities with any committee, depository, transfer agent,
registrar or other designated agency upon such terms and conditions as
it may determine, all without liability except to account for the
property actually received by it, but the Lender shall have no duty to
exercise any of the aforesaid rights, privileges or options and the
Lender shall not be responsible for any failure to do so or delay in so
doing.
Section 7. Default.
(a) It shall constitute a Default or an Event of Default under
this Agreement if a "Default" or an "Event of Default" shall occur under
the Indenture.
(b) If an Event of Default shall have occurred and is
continuing and if the maturity of the Note is accelerated under the
provisions of the TARC Intercompany Loan Agreement, in addition to any
other rights and remedies that may be available to the Lender under the
UCC or the TARC Intercompany Loan Agreement or under Section 5(a) or
5(b) of this Agreement or otherwise under this Agreement or at law, the
Lender shall also have the following rights and powers:
(i) The Lender may, without being required to give any
notice except as hereinafter provided, sell the Collateral, or
any part thereof, at public or private sale, for cash, upon
credit or for future delivery and at such price or prices as the
Lender deems satisfactory, and the Lender and/or its collateral
agent may be the purchaser of any or
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all of the Collateral so sold and thereafter hold the same
absolutely free from any right or claim of whatsoever kind, and
the Indebtedness or any portion of the Indebtedness may be
applied as a credit against the purchase price.
(ii) Upon any such sale, the Lender shall have the right
to deliver, assign and transfer to the purchaser thereof the
Collateral so sold. Each purchaser at any such sale shall hold
the property sold absolutely free from any claim or right of
whatsoever kind by or on behalf of the Company, including any
equity or rights of redemption of the Company, and the Company
hereby specifically waives, to the full extent permitted by
applicable law, all rights of redemption, stay or appraisal which
it has or may have under any rule or law or statute now existing
or hereafter adopted.
(iii) The Lender shall give the Company ten (10) business
days' written notice (which the Company agrees is reasonable
notification within the meaning of Section 9.504 of the UCC) of
its intention to make any such public or private sale. Such
notice, in case of public sale, shall state the time and place
fixed for such sale and, in case of a private sale, shall state
the date after which such sale is to be made.
(iv) Any such public sale shall be held at such time or
times within ordinary business hours and at such places as the
Lender may fix in the notices of such sale. At any such sale the
Collateral may be sold in one lot as an entirety or in separate
parcels, as the Lender may, in its sole discretion, determine.
(v) The Lender shall not be obligated to make any sale
of the Collateral if it shall determine not to do so, regardless
of the fact that notice of sale of the Collateral may have been
given. The Lender may, without notice or publication, adjourn
any public or private sale or cause the same to be adjourned from
time to time by announcement at the time and place fixed for the
sale, and such sale may, without further notice, be made at any
time or place to which the same shall be so adjourned.
(vi) In case of any sale of all or any part of the
Collateral on credit or for future delivery, the Collateral so
sold may be retained by the Lender until the selling price is
paid by the purchaser thereof, but the Lender shall not incur any
liability in case of the failure of such purchaser to take up and
pay for the Collateral so sold and, in case of any such failure,
such Collateral may again be sold upon like notice.
(vii) The Lender, instead of exercising the power of sale
herein conferred upon it, may proceed by a suit or suits at law
or in equity to exercise its remedies regarding the Collateral
and sell the Collateral, or any portion thereof, under a judgment
or decree of a court or courts of competent jurisdiction.
(viii) The Company agrees that if any Event of Default
shall have occurred and be continuing, then the Lender shall have
the right to take possession of the Collateral, and for that
purpose the Lender may, so far as the Company can give authority
therefor, enter upon any premises on which the Collateral may be
situated and remove the same therefrom with or without notice or
process of law. The Company waives any and all rights that it
may have to a judicial hearing in advance of the enforcement of
any of the Lender's rights hereunder, including, without
limitation, its right following an Event of Default to take
immediate possession of the Collateral and to exercise its rights
with
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respect thereto. To the extent that any of the Obligations are to
be paid or performed by a person other than the Company, the
Company waives and agrees not to assert any rights or privileges
which it may have under Section 9-112 of the UCC.
(ix) If under mandatory requirements of applicable law,
the Lender shall be required to make disposition of the
Collateral within a period of time that does not permit the
giving of notice to the Company as hereinbefore provided, the
Lender need give the Company only such notice of disposition as
shall be reasonably practicable in view of such mandatory
requirements of law.
(x) The Lender may instruct the obligor or obligors on
any agreement, instrument or other obligation constituting the
Collateral to make any payment or render any performance required
by the terms of such agreement, instrument or obligation directly
to the Lender or its designee.
(c) The Lender shall incur no liability as a result of the
sale of the Collateral, or any part thereof, at any private sale other
than for its own gross negligence, willful misconduct or bad faith. The
Company hereby waives, to the maximum extent permitted by applicable
law, any claims against the Lender arising by reason of the fact that
the price at which the Collateral may have been sold at such private
sale was less than the price which might have been obtained at a public
sale or was less than the aggregate amount of the Indebtedness, even if
the Lender accepts the first offer received and does not offer such
Collateral to more than one offeree.
(d) The Lender shall not be obligated to pursue or exhaust its
rights and remedies against any particular Collateral or other security
for the Indebtedness before pursuing or enforcing its rights and
remedies against any other Collateral or other security for the
Indebtedness.
(e) To the extent permitted by law, the Company hereby waives
(i) any rights to require the Lender to proceed first against any other
Person, to exhaust its rights in the Collateral or other security for
the Indebtedness or to pursue any other right that the Lender might
have, (ii) with respect to the Note, presentment and demand for payment,
protest, notice of protest and nonpayment, notice of dishonor, notice of
the intention to accelerate and notice of acceleration (except as
otherwise set forth in the TARC Intercompany Loan Agreement), and (iii)
all rights of marshalling in respect of any and all of the Collateral.
(f) Without precluding any other methods of sale, the Company
acknowledges that the sale of the Collateral shall have been made in a
commercially reasonable manner if conducted in conformity with
reasonable commercial practices of banks disposing of similar property.
The Lender shall not be liable for any depreciation in the value of the
Collateral.
(g) The Company agrees that its obligation to deliver the
Collateral is of the essence of this Agreement and that accordingly,
upon application to a court of equity having jurisdiction, the Lender
shall be entitled to a decree requiring specific performance by the
Company of such obligation.
(h) Remedies of the Lender are cumulative and the exercise of
any one or more of the remedies provided herein shall not be construed
as a waiver of any of the other remedies of the Lender.
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(i) If an Event of Default shall have occurred and be
continuing, the proceeds of any sale of or other realization upon all or
any part of the Collateral and any other amounts held by the Lender
under this Agreement shall be applied by the Lender as provided in the
Indenture.
Any amounts remaining after such applications and the payment in
full of the Note with respect to the Indebtedness shall be remitted to the
Company, its successors or assigns, or as a court of competent jurisdiction may
otherwise direct.
Section 8. Registration Rights.
(a) If the Lender shall determine to exercise the right to
sell any or all of the Pledged Collateral pursuant to Section 7 hereof,
and if in the opinion of counsel for the Lender it is necessary (or if
in the opinion of the Lender it is advisable) to have the Pledged
Collateral, or that portion thereof to be sold, registered under the
provisions of the Securities Act of 1933, as amended (the "Securities
Act"), the Company will cause each issuing corporation to execute and
deliver, and cause the directors and officers of each thereof to execute
and deliver, all at the Company's expense, all such instruments and
documents, and to do or cause to be done all such other acts and things
as may be necessary or, in the opinion of the Lender, advisable to
register the Pledged Collateral, or that portion thereof to be sold,
under the provisions of the Securities Act and to use its best efforts
to cause the registration statement relating thereto to become effective
and to remain effective for a period of one year from the date of the
first public offering of the Pledged Collateral, or that portion thereof
to be sold, and to make all amendments or supplements thereto and/or to
the related prospectus which, in the opinion of the Lender, are
necessary or advisable, all in conformity with the requirements of the
Securities Act and the rules and regulations of the Securities and
Exchange Commission applicable thereto. The Company agrees to use its
best efforts to cause each such issuing corporation to comply with the
provisions of the securities or "Blue Sky" laws of any jurisdiction
which the Lender shall designate and to cause each such issuing
corporation to make available to its security holders, as soon as
practicable, an earnings statement (which need not be audited) which
will satisfy the provisions of Section 11(a) of the Securities Act.
(b) The Company recognizes that the Lender may be unable, or
find it undesirable, to effect a public sale of any or all the Pledged
Collateral by reason of certain prohibitions contained in the Securities
Act and applicable state securities laws or otherwise, but may be
compelled or desire to resort to one or more private sales thereof to a
restricted group of purchasers who will be obliged to agree, among other
things, to acquire such securities for their own account for investment
and not with a view to the distribution or resale thereof in violation
of the Securities Act. The Company acknowledges and agrees that any
such private sale may result in prices and other terms less favorable to
the seller than if such sale were a public sale, but, notwithstanding
such circumstances, such private sale shall be deemed to have been made
in a commercially reasonable manner. The Lender shall be under no
obligation to delay a sale of any of the Pledged Collateral for the
period of time necessary to permit the issuing corporation of such
securities to register such securities for public sale under the
Securities Act, or under applicable state securities laws, even if the
issuing corporation would agree to do so.
(c) The Company further agrees to use commercially reasonable
efforts to do or cause to be done all such other acts and things as may
be necessary to make such sale or sales of any portion or all of the
Pledged Collateral valid and binding and in compliance with any and all
applicable laws, regulations, orders, writs, injunctions, decrees or
awards of any and all
14
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courts, arbitrators or governmental instrumentalities, domestic or
foreign, having jurisdiction over any such sale or sales, all at the
Company's expense. The Company further agrees that a breach of any of
the covenants contained in this Section 8 will cause irreparable injury
to the Lender, that the Lender has no adequate remedy at law in respect
of such breach and, as a consequence, agrees that each and every
covenant contained in this Section 8 shall be specifically enforceable
against the Company, and the Company hereby waives and agrees not to
assert any defenses against an action for specific performance of such
covenants except for a defense that no Event of Default has occurred
under the Indenture.
Section 9. General Provisions.
(a) Continuing Security Interest; Binding Effect. 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 Company under the TARC Intercompany Loan Agreement
and the indefeasible payment in full thereafter of the Obligations; (b)
be binding upon the Company and its successors and assigns; and (c)
inure to the benefit of the Lender and its successors, transferees and
assigns. Without limiting the generality of the foregoing clause (c),
the Lender may assign or otherwise transfer any of its 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 Lender. Upon the termination of the obligations of the
Lender under the Indenture and the indefeasible payment in full
thereafter of the Obligations, the Company shall be entitled to the
return, upon its request and at its expense, of such of the Collateral
as is in the Lender's possession and as shall not have been sold or
otherwise disposed of pursuant to the terms hereof.
(b) Security Interest Absolute. The lien and security
interest created hereunder and the Company's obligations hereunder and
the Lender's rights hereunder shall not be released, diminished,
impaired or adversely affected by the occurrence of any one or more of
the following events:
(i) The taking or accepting of any other security or
assurance for any or all of the Indebtedness;
(ii) Any release, surrender, exchange, subordination or
loss of any security or assurance at any time existing in
connection with any or all of the Indebtedness;
(iii) The modification of, amendment to, or waiver of
compliance with any terms of the TARC Intercompany Loan Agreement
or the Note;
(iv) Any renewal, extension and/or rearrangement of the
payment of any or all of the Indebtedness or any statement,
indulgence, forbearance or compromise that may be granted or
given by the Lender to the Company or any other Person;
(v) any neglect, delay, omission, failure or refusal of
the Lender to take or prosecute any action in connection with any
agreement, document or other instrument evidencing, securing or
assuring the payment of any or all of the Indebtedness;
(vi) the illegality, invalidity or unenforceability of
all or any part of the TARC Intercompany Loan Agreement or the
Note; or
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(vii) any other circumstance (other than payment in full
of the Obligations) that might otherwise constitute a defense
available to, or a discharge of, the Company or any party to any
document in respect of the Obligations.
(c) Amendments. This Agreement or any term hereof may be
amended or changed only by an instrument in writing executed jointly by
the Company and the Lender and in accordance with Article IX of the
Indenture.
(d) Remedies Cumulative. Each right, power and remedy herein
specifically granted to the Lender or otherwise available to it or now
or hereafter existing in law or in equity shall be cumulative and
concurrent, and shall be in addition to every other right, power and
remedy herein specifically given or now or hereafter existing at law, in
equity, or otherwise (including, without limitation, all rights, powers
and remedies granted to a secured party under the UCC), and each such
right, power and remedy, whether specifically granted herein or
otherwise existing, may be exercised at any time and from time to time
as often and in such order as may be deemed expedient by the Lender in
its sole and complete discretion. The provisions of this Agreement may
only be waived by an instrument in writing signed by the Lender, and no
failure on the part of the Lender to exercise, and no delay in
exercising, and no course of dealing with respect to, any such right,
power or remedy, shall operate as a waiver thereof, nor shall any single
or partial exercise of any such right, power or remedy preclude any
other or further exercise thereof or the exercise of any other right.
No notice to or demand on the Company hereunder shall, of itself,
entitle the Company to any other or further notice or demand in the same
or similar circumstances.
(e) Assignment. Neither this Agreement nor any interest
herein or in the Collateral, or any part thereof, may be assigned by the
Company without the prior written consent of the Lender, except as
expressly permitted herein or in the Indenture or in the Disbursement
Agreement. The Company hereby acknowledges and consents to the
collateral assignment by the Lender of this Agreement and the Lender's
interest in the Collateral to the Indenture Trustee, as defined in the
TARC Intercompany Loan Agreement. The Company also agrees that, in the
case of an Event of Default, the Indenture Trustee may exercise any
rights and remedies of the Lender under this Agreement, and any
reference to the "Lender" hereunder shall also include the Indenture
Trustee.
(f) Headings. The descriptive headings of the several
sections of this Agreement are inserted for convenience only and shall
not control or affect the meaning or construction of any of the
provisions hereof.
(g) Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or
affecting the validity of enforceability or such provision in any other
jurisdiction.
(h) Survival. All representations and warranties contained
herein, in the Indenture or made in writing by the Company in connection
herewith or therewith, shall survive the execution and delivery of this
Agreement, the Indenture and any documents executed in connection
herewith or therewith.
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(i) Counterparts. This Agreement may be executed in any
number of counterparts and by different parties in separate
counterparts, each of which when so executed and delivered shall be
deemed to be an original, but all of which when taken together shall
constitute one and the same instrument. A complete set of counterparts
shall be lodged with the Lender.
(j) Waiver. To the extent permitted by applicable law the
Company hereby waives promptness, diligence, notice of acceptance and
any other notice with respect to any of the Indenture obligations and
this Agreement and any requirement that the Lender protect, secure,
perfect or insure any security interest or any property subject thereto
or exhaust any right or take any action against the Company or any other
person or entity; provided however, that the Lender shall in any event
take such care in the handling of any Collateral in its possession as it
takes with respect to its own property of a similar nature in its
possession.
(k) Notices. Any notices or other communications required or
permitted hereunder shall be in writing, and shall be sufficiently given
if made by hand delivery, by telex, by facsimile or registered or
certified mail, postage prepaid, return receipt requested, addressed as
provided in Section 9.3 of the TARC Intercompany Loan Agreement. Any
party hereto may by notice to the other party designate such additional
or different addresses as shall be furnished in writing by such party.
Any notice or communication to any party shall be deemed to have been
given or made as of the date so delivered, if personally delivered; when
answered back, if telexed; when receipt is acknowledged, if faxed; and
five (5) calendar days after mailing, if sent by registered or certified
mail (except that a notice of change of address shall not be deemed to
have been given until actually received by the addressee).
(l) Conflicting Terms. In the event of any conflict or
inconsistency between the terms, covenants, conditions and provisions
set forth in this Agreement and the terms, covenants, conditions and
provisions set forth in the Indenture, the terms, covenants, conditions
and provisions of the Indenture shall prevail.
(m) Release. The Collateral, in whole or in part, may be
released in accordance with the TARC Intercompany Loan Agreement and the
Indenture.
(n) Conflicts. If any provision of the TARC Intercompany Loan
Agreement limits, qualifies, or conflicts with any similar provision of
this Agreement, such provision of the TARC Intercompany Loan Agreement
shall control.
(o) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAW EXCEPT SECTION 5-1401 OF THE
NEW YORK GENERAL OBLIGATIONS LAW. THE COMPANY HEREBY IRREVOCABLY
SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE COURT SITTING IN THE
BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK OR ANY FEDERAL COURT
SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN RESPECT
OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT, AND IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS
PROPERTY, GENERALLY AND UNCONDITIONALLY, JURISDICTION OF THE AFORESAID
COURTS. THE COMPANY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY
EFFECTIVELY DO SO UNDER APPLICABLE LAW, TRIAL BY JURY AND ANY OBJECTION
THAT IT MAY NOW OR
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HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT,
ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM. THE COMPANY IRREVOCABLY CONSENTS, TO THE FULLEST
EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, TO THE SERVICE OF
PROCESS OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR
PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED
MAIL, POSTAGE PREPAID, TO THE COMPANY AT ITS SAID ADDRESS, SUCH SERVICE
TO BECOME EFFECTIVE 30 DAYS AFTER SUCH MAILING. NOTHING HEREIN SHALL
AFFECT THE RIGHT OF THE LENDER TO SERVE PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED
AGAINST THE COMPANY IN ANY OTHER JURISDICTION.
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IN WITNESS WHEREOF, the Company and the Lender have executed this
Agreement as of the date first above written.
TRANSAMERICAN REFINING CORPORATION
By:
-------------------------------
Name:
----------------------------
Title:
----------------------------
TRANSAMERICAN ENERGY CORPORATION,
as Lender
By:
-------------------------------
Name:
----------------------------
Title:
----------------------------
By:
-------------------------------
Name:
----------------------------
Title:
----------------------------
21
EXHIBIT A
PERFECTION CERTIFICATE
The undersigned, Vice President of TransAmerican Refining
Corporation, a Texas corporation (the "Company"), hereby certify with reference
to the Security and Pledge Agreement dated as of June 13, 1997 between the
Company and TransAmerican Energy Corporation, as Lender (terms defined therein
being used herein as therein defined), to the Lender as follows:
Section 1. Names.
(a) The exact corporate name of the Company, as it appears in
its certificate of incorporation is as follows:
TransAmerican Refining Corporation
(b) Set forth below is each other corporate name the Company
has had since its organization, together with the date of the relevant
change:
n/a
(c) The Company has not changed its identity or corporate
structure in any way within the past five years except:
n/a
(d) The following is a list of all other names (including
trade names or similar appellations) used by the Company or any of its
divisions or other business units at any time during the past five
years:
n/a
Section 2. Current Locations.
(a) The chief executive office of the Company is located at
the following address:
Mailing Address County State
--------------- ------ -----
▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Houston, 77032
(b) The following are all the places of business of the
Company not identified above:
Mailing Address County State
--------------- ------ -----
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
A-1
22
Section 3. Prior Locations. Set forth below is the information required
by subparagraphs (a) and (b) of Section 2 with respect to each location or
place of business maintained by the Company at any time during the past five
years:
n/a
Section 4. UCC Filings. A duly signed financing statement on Form UCC-1
in substantially the form of Schedule 4(a) hereto has been duly filed in the
UCC filing office in each jurisdiction identified in Section 2 hereof. The
Company will deliver a true copy of each such filing duly acknowledged by the
filing officer as soon as practicable after the date hereof.
Section 5. Schedule of Filings. Attached hereto as Schedule 5 is a
schedule setting forth filing information with respect to the filings described
in Section 4 above.
Section 6. Filings Fees. All filing fees and taxes payable in
connection with the filings described in Section 4 above have been paid.
A-2
23
IN WITNESS WHEREOF, the undersigned have hereunto set their hands
this ___ day of June, 1997 in the respective capacities indicated below their
signatures.
-----------------------------------
Name:
-----------------------------
Title:
----------------------------
A-3
24
SCHEDULE 2(b)
PLEDGED COLLATERAL
================================================================================
Percentage
Stock Number of
Stock Class of Certificate Par of Outstanding
Issuer Stock No.(s) Value Shares Shares
------ ----- ------ ----- ------ ------
================================================================================
--------------------------------------------------------------------------------
================================================================================
1
25
SCHEDULE 4(a)
DESCRIPTION OF COLLATERAL
All of the Debtor's right, title and interest in, to and under any and all of
the following described property, assets and rights, in each case, wherever
located, whether now owned or hereafter acquired or arising, all accessions and
additions thereto, all substitutions and replacements therefor, and all
proceeds and products thereof and assigns all rights in and to all collateral
securing the following described property, assets and rights:
(i) all personal and fixture property of every kind and
nature including, without limitation, all furniture, fixtures,
raw materials, goods, contract rights, rights to the payment of
money, insurance refund claims and all other insurance claims and
proceeds, tort claims, chattel paper, documents, instruments
(including certificated securities), deposit accounts and all
general intangibles including, without limitation, all
uncertificated securities, tax refund claims, license fees,
patents, patent applications, trademarks, trademark applications,
trade names, copyrights, copyright applications, rights to ▇▇▇
and recover for past infringement of patents, trademarks and
copyrights, computer programs, computer software, engineering
drawings, service marks, customer lists, goodwill, and all
licenses, permits, agreements of any kind or nature pursuant to
which the Debtor possesses, uses or has authority to possess or
use property (whether tangible or intangible) of others or others
possess, use or have authority to possess or use property
(whether tangible or intangible) of the Debtor, and all recorded
data of any kind or nature, regardless of the medium of recording
including, without limitation, all software, writings, plans,
specifications and schematics (any and all such property being
the "UCC Collateral"); provided, however, that nothing herein
shall be construed to include within, and there is expressly
excluded from, the UCC Collateral, any now owned or hereafter
acquired equipment, inventory or receivables ;
(ii) all of the issued and outstanding shares of common
stock identified on Schedule 2(b) attached hereto of any other
subsidiary of the Debtor presently existing or hereafter created
or acquired (the "Pledged Subsidiaries") therein set forth;
(iii) all other shares of common stock or other equity
securities now or hereafter acquired by the Debtor in any manner
issued by the Pledged Subsidiaries, and the certificates
representing such securities, and any present or future options,
warrants or other rights to subscribe for or purchase any
property described in Section 2(b)(i) or any notes, bonds,
debentures or other evidences of indebtedness now or hereafter
owned or acquired by the Debtor in any manner that (A) are at any
time convertible, exchangeable or exercisable into capital stock
or other equity securities of the Pledged Subsidiaries or (B)
have or at any time could by their terms have voting rights with
respect to any matter affecting the Pledged Subsidiaries and all
securities, certificates and instruments representing or
evidencing ownership of any of the property described in Section
2(b) hereof;
(iv) all proceeds and products of the foregoing and
distributions thereof or with respect thereto, including without
limitation dividends, distributions, cash,
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instruments and other property or securities, now or hereafter at
any time or from time to time received or receivable or otherwise
distributed or distributable in respect of or in exchange for any
or all of the foregoing; and
(v) The disbursement account (the "Disbursement
Account") maintained at Firstar Bank of Minnesota, N.A., more
specifically described on Schedule I, owned by the Debtor and
created by that certain Disbursement Agreement by and among the
Debtor, the Secured Party, the disbursement agent named therein
and the construction supervisor named therein, as amended
pursuant to the terms thereof, and all investments, securities,
financial assets credited thereto and security entitlements with
respect thereto, and all certificates and instruments, if any,
from time to time representing or evidencing the Disbursement
Account or any property credited thereto, whether now owned by
the Debtor or existing or hereafter acquired, created or arising
including the proceeds thereof (the "Assigned Collateral" and,
together with the UCC Collateral and the Pledged Collateral, the
"Collateral").
Notwithstanding anything herein to the contrary, the stock of any Unrestricted
Subsidiary shall not constitute Collateral hereunder.
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SCHEDULE 5
SCHEDULE OF FILINGS
Debtor Filing Officer File Number Date(1)
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(1) Indicate lapse date, if other than fifth anniversary.
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