Exhibit 10.G
PLEDGE AND SECURITY AGREEMENT
Dated as of August 21, 2001
between
THE FINOVA GROUP INC.
and
WILMINGTON TRUST COMPANY
as Collateral Trustee
Weil, Gotshal & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
TABLE OF CONTENTS
Page
ARTICLE I. Defined Terms.................................................... 2
Section 1.1 Definitions 2
Section 1.2 Certain Other Terms.............................................. 7
ARTICLE II. Grant of Security Interest....................................... 8
Section 2.1 Collateral 8
Section 2.2 Grant of Security Interest in Collateral......................... 9
Section 2.3 Cash Collateral Accounts......................................... 9
ARTICLE III. Representations And Warranties................................... 10
Section 3.1 Title; No Other Liens............................................ 10
Section 3.2 Perfection and Priority.......................................... 10
Section 3.3 State of Incorporation; Chief Executive Office................... 10
Section 3.4 Inventory and Equipment.......................................... 10
Section 3.5 Pledged Collateral............................................... 10
Section 3.6 Accounts 11
Section 3.7 No Other Names................................................... 11
Section 3.8 Intellectual Property............................................ 11
Section 3.9 Control Accounts; Deposit Accounts............................... 12
ARTICLE IV. Covenants........................................................ 12
Section 4.1 Generally 12
Section 4.2 Maintenance of Perfected Security Interest; Further Documentation 12
Section 4.3 Changes in Locations, Name, Etc.................................. 12
Section 4.4 Pledged Collateral............................................... 13
Section 4.5 Control Accounts; Deposit Accounts............................... 14
Section 4.6 Delivery of Instruments and Chattel Paper........................ 14
Section 4.7 Intellectual Property............................................ 15
Section 4.8 Vehicles 16
Section 4.9 Insurance 16
Section 4.10 Special Property................................................. 16
Section 4.11 Use of Collateral................................................ 17
ARTICLE V. Remedial Provisions.............................................. 17
Section 5.1 Code and Other Remedies.......................................... 17
Section 5.2 Accounts and Payments in Respect of General Intangibles.......... 17
Section 5.3 Pledged Collateral............................................... 18
Section 5.4 Proceeds to be Turned Over To Collateral Trustee................. 19
Section 5.5 Deficiency 19
Section 5.6 Execution of Financing Statements................................ 19
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ARTICLE VI. Miscellaneous.................................................... 20
Section 6.1 Amendments in Writing............................................ 20
Section 6.2 Notices 20
Section 6.3 No Waiver by Course of Conduct; Cumulative Remedies.............. 20
Section 6.4 Successors and Assigns........................................... 20
Section 6.5 Counterparts 20
Section 6.6 Severability 20
Section 6.7 Section Headings................................................. 20
Section 6.8 Entire Agreement................................................. 20
Section 6.9 Governing Law.................................................... 21
Section 6.10 Reinstatement.................................................... 21
Section 6.11 Security Interest Absolute....................................... 21
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PLEDGE AND SECURITY AGREEMENT
PLEDGE AND SECURITY AGREEMENT, dated as of August 21, 2001 (this
"Agreement"), by THE FINOVA GROUP INC. (the "Grantor"), in favor of WILMINGTON
TRUST COMPANY, as collateral trustee for the Secured Parties (in such capacity,
the "Collateral Trustee").
W i t n e s s e t h:
WHEREAS, pursuant to the Credit Agreement, dated as of August 21, 2001
(as the same may be amended, restated, supplemented or otherwise modified from
time to time, the "Credit Agreement") between Berkadia LLC (the "Lender") and
FINOVA Capital Corporation (the "Borrower"), the Lender has agreed to make a
single term loan in the principal amount of $5.6 billion dollars to the Borrower
upon the terms and subject to the conditions set forth therein; and
WHEREAS, the Borrower has issued and may issue promissory notes
comprising the Intercompany Note to the Grantor; and
WHEREAS, the Borrower, the Lender, the Parent, the Trustee (as defined
below) and the Collateral Trustee are parties to a Collateral Trust Agreement;
and
WHEREAS, the Grantor is a party to the Parent Guaranty, pursuant to
which it has guaranteed the obligations of the Borrower under the Credit
Agreement; and
WHEREAS, it is a condition precedent to the obligation of the Lender
to make the term loan to the Borrower under the Credit Agreement and the
obligation of the holders of the Senior Notes under the Indenture to accept the
Senior Notes that the Grantor shall have executed and delivered this Agreement
to the Collateral Trustee;
NOW, THEREFORE, in consideration of the premises the Grantor hereby
agrees with the Collateral Trustee as follows:
ARTICLE I. DEFINED TERMS
Section 1.1 Definitions.
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(a) Unless otherwise defined herein, terms defined in the Credit
Agreement and used herein have the meanings given to them in the Credit
Agreement.
(b) Terms used herein that are defined in the UCC have the meanings
given to them in the UCC, including the following which are capitalized herein:
"Account Debtor"
"Accounts"
"Chattel Paper"
"Commodity Account"
"Commodity Intermediary"
"Control"
"Deposit Accounts"
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"Documents"
"Entitlement Holder"
"Entitlement Order"
"Equipment"
"Financial Asset"
"General Intangibles"
"Instruments"
"Inventory"
"Investment Property"
"Letter of Credit Rights"
"Payment Intangible"
"Proceeds"
"Security"
"Securities Account"
"Securities Intermediary"
"Security Entitlement"
(c) The following terms shall have the following meanings:
"Additional Pledged Collateral" means all shares of, limited and/or
general partnership interests in, and limited liability company interests in,
and all securities convertible into, and warrants, options and other rights to
purchase or otherwise acquire, stock of, or partnership interests in or limited
liability company interests in, either (i) any Person that, after the date of
this Agreement, as a result of any occurrence, becomes a direct Subsidiary of
the Grantor or (ii) any issuer of Pledged Stock, any Partnership or any LLC that
is acquired by the Grantor after the date hereof; all certificates or other
instruments representing any of the foregoing; all Security Entitlements of the
Grantor in respect of any of the foregoing; all additional indebtedness from
time to time owed to the Grantor by any obligor on the Pledged Notes and the
instruments evidencing such indebtedness; and all interest, cash, instruments
and other property or Proceeds from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or all of the
foregoing. Additional Pledged Collateral may be General Intangibles or
Investment Property.
"Agreement" means this Pledge and Security Agreement.
"Approved Deposit Account" means a Deposit Account maintained by the
Grantor with a Deposit Account Bank which account is the subject of an effective
Deposit Account Control Agreement, and includes all monies on deposit therein
and all certificates and instruments, if any, representing or evidencing such
Approved Deposit Account.
"Approved Securities Intermediary" means a Securities Intermediary or
Commodity Intermediary and with respect to which the Grantor has delivered to
the Collateral Trustee an executed Control Account Agreement.
"Cash Collateral Account" means any Deposit Account or Securities
Account established by the Collateral Trustee as provided in Section 2.3 in
which cash and Cash Equivalents may from time to time be on deposit or held
therein as provided in Section 5.2 or 5.4.
"Collateral" has the meaning specified in Section 2.1.
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"Control Account" means a Securities Account or Commodity Account
maintained by the Grantor with an Approved Securities Intermediary which account
is the subject of an effective Control Account Agreement, and includes all
Financial Assets held therein and all certificates and instruments, if any,
representing or evidencing the Financial Assets contained therein.
"Control Account Agreement" means a letter agreement, substantially in
the form of Annex 2 (with such changes as may be agreed to by the Collateral
Trustee), executed by the Grantor, the Collateral Trustee and the relevant
Approved Securities Intermediary.
"Copyrights" means (a) all copyrights arising under the laws of the
United States, any other country or any political subdivision thereof, whether
registered or unregistered and whether published or unpublished, all
registrations and recordings thereof, and all applications in connection
therewith, including all registrations, recordings and applications in the
United States Copyright Office or in any foreign counterparts thereof and (b)
the right to obtain all renewals thereof.
"Copyright Licenses" means any written agreement naming the Grantor as
licensor or licensee granting any right under any Copyright, including the grant
of rights to copy, publicly perform, create derivative works, manufacture,
distribute, exploit and sell materials derived from any Copyright.
"Deposit Account Bank" means a financial institution with respect to
which the Grantor has delivered to the Collateral Trustee an executed Deposit
Account Control Agreement.
"Deposit Account Control Agreement" means a letter agreement,
substantially in the form of Annex 1 (with such changes as may be agreed to by
the Collateral Trustee), executed by the Grantor, the Collateral Trustee and the
relevant Deposit Account Bank.
"Domestic Subsidiary" means any Subsidiary of the Grantor incorporated
or organized under the laws of the United States, any state thereof or the
District of Columbia.
"Excluded Property" means Special Property other than the following:
(a) the right to receive any payment of money (including, without
limitation, general intangibles for money due or to become due) or any
other rights referred to in Sections 9-406(f), 9-407(a) or 9-408(a) of the
UCC; and
(b) any proceeds, products, offspring, accessions, rents, profits,
income, benefits, substitutions or replacements of any Special Property
(unless such proceeds, products, offspring, accessions, rents, profits,
income, benefits, substitutions or replacements itself would constitute
Special Property).
"Guaranty Obligations" means all obligations of the Grantor under the
Parent Guaranty.
"Indenture Obligations" means any principal, interest and all other
obligations and liabilities of the Parent (including interest accruing at the
then applicable rate provided in the Indenture after the maturity of the Senior
Notes and interest accruing at the then applicable rate provided in the
Indenture after the filing of any petition in bankruptcy, or the commencement of
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any insolvency, reorganization or like proceeding, relating to the Grantor,
whether or not a claim for post-filing or post-petition interest is allowed in
such proceeding), whether absolute or contingent, due or to become due, or now
existing or hereafter incurred, which may arise under, out of, or in connection
with the Indenture, the Senior Notes, this Agreement or any other document made,
delivered or given in connection therewith, in each case whether on account of
principal, interest, guarantee obligations, fees, indemnities, costs, expenses
or otherwise; provided, however, that "Indenture Obligations" shall not include
the Contingent Interest (as defined in the Indenture).
"Intellectual Property" means, collectively, all rights, priorities
and privileges of the Grantor relating to intellectual property, whether arising
under United States, multinational or foreign laws or otherwise, including
Copyrights, Copyright Licenses, Patents, Patent Licenses, Trademarks, Trademark
Licenses and trade secrets, and all rights to ▇▇▇ at law or in equity for any
infringement or other impairment thereof, including the right to receive all
proceeds and damages therefrom.
"LLC" means each limited liability company in which the Grantor has an
interest, including those set forth on Schedule 2.
"LLC Agreement" means each operating agreement with respect to an LLC,
as each agreement has heretofore been and may hereafter be amended, restated,
supplemented or otherwise modified from time to time.
"Material Intellectual Property" means Intellectual Property owned by
or licensed to the Grantor which is material to its business.
"Partnership" means each partnership in which the Grantor has an
interest, including those set forth on Schedule 2.
"Partnership Agreement" means each partnership agreement governing a
Partnership, as each such agreement has heretofore been and may hereafter be
amended, restated, supplemented or otherwise modified.
"Patents" means (a) all letters patent of the United States, any other
country or any political subdivision thereof and all reissues and extensions
thereof, (b) all applications for letters patent of the United States or any
other country and all divisions, continuations and continuations-in-part
thereof, and (c) all rights to obtain any reissues or extensions of the
foregoing.
"Patent License" means all agreements, whether written or oral,
providing for the grant by or to the Grantor of any right to manufacture, use,
import, sell or offer for sale any invention covered in whole or in part by a
Patent.
"Pledge Amendment" has the meaning specified in Section 4.4.
"Pledged Collateral" means, collectively, the Pledged Notes, the
Pledged Stock, the Pledged Partnership Interests, the Pledged LLC Interests, any
other Investment Property of the Grantor, all certificates or other instruments
representing any of the foregoing and all Security Entitlements of the Grantor
in respect of any of the foregoing included in the Collateral. Pledged
Collateral may be General Intangibles or Investment Property.
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"Pledged LLC Interests" means all right, title and interest of the
Grantor as a member of any LLC and all of the Grantor's right, title and
interest in, to and under any LLC Agreement to which it is a party.
"Pledged Notes" means all right, title and interest of the Grantor in
the Instruments evidencing any Indebtedness owed to the Grantor, including all
Indebtedness described on Schedule 2, issued by the obligors named therein.
"Pledged Partnership Interests" means all of the Grantor's right,
title and interest as a limited and/or general partner in any Partnerships and
all of the Grantor's right, title and interest in, to and under any Partnership
Agreements to which it is a party.
"Pledged Stock" means all right, title and interest of the Grantor in
the shares of capital stock owned by each Grantor, including all shares of
capital stock listed on Schedule 2; provided, however, that only the outstanding
capital stock of a subsidiary of the Grantor created after the date hereof that
is not a Domestic Subsidiary possessing up to but not exceeding 65% of the
voting power of all classes of capital stock of such controlled foreign
corporation entitled to vote shall be deemed to be pledged hereunder.
"Related Contract" means each security agreement, lease and other
contract securing or otherwise relating to any Account.
"Secured Obligations" means the Guaranty Obligations and the Indenture
Obligations.
"Secured Party" has the meaning set forth in the Collateral Trust
Agreement.
"Securities Act" means the Securities Act of 1933, as amended.
"Special Property" means:
(a) any permit, lease or license held by the Grantor that validly
prohibits the creation by the Grantor of a security interest therein;
(b) any permit, lease or license held by the Grantor to the extent
that any Requirement of Law applicable thereto prohibits the creation of a
security interest therein; and
(c) Equipment owned by the Grantor on the date hereof that is subject
to a purchase money Lien or a Capital Lease Obligation if the contract or
other agreement in which such Lien is granted (or in the documentation
providing for such Capital Lease Obligation) validly prohibits the creation
of any other Lien on such Equipment;
(d) any LLC interests, Partnership interests or other equity interests
that are subject to contractual prohibitions against or limitations on the
transfer or pledging of such interests; and
(e) rights under any contract which prohibits collateral assignment;
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in each case only to the extent, and for so long as, such permit, lease,
license, contract or other agreement, or Requirement of Law applicable thereto,
validly prohibits the creation of a Lien in such property in favor of the
Collateral Trustee (and upon the termination of such prohibition (howsoever
occurring) such permit, lease, license or equipment shall cease to be "Special
Property").
"Trademarks" means (a) all trademarks, trade names, corporate names,
company names, business names, fictitious business names, trade styles, service
marks, logos and other source or business identifiers, and all goodwill
associated therewith, now existing or hereafter adopted or acquired, all
registrations and recordings thereof, and all applications in connection
therewith, whether in the United States Patent and Trademark Office or in any
similar office or agency of the United States, any state thereof or any other
country or any political subdivision thereof, or otherwise, and all common-law
rights related thereto, and (b) the right to obtain all renewals thereof.
"Trademark License" means any agreement, whether written or oral,
providing for the grant by or to the Grantor of any right to use any Trademark.
"Trustee" means The Bank of New York.
"UCC" means the Uniform Commercial Code as from time to time in effect
in the State of New York; provided, however, that in the event that, by reason
of mandatory provisions of law, any or all of the attachment, perfection or
priority of the Collateral Trustee's and/or the Secured Parties' security
interest in any Collateral is governed by the Uniform Commercial Code as in
effect in a jurisdiction other than the State of New York, the term "UCC" shall
mean the Uniform Commercial Code as in effect in such other jurisdiction for
purposes of the provisions hereof relating to such attachment, perfection or
priority and for purposes of definitions related to such provisions; provided,
further, that if the UCC is amended after the date hereof, such amendment will
not be given effect for the purposes of this Agreement if and to the extent the
result of such amendment would be to limit or eliminate any item of Collateral.
"Vehicles" means all vehicles covered by a certificate of title law of
any state.
Section 1.2 Certain Other Terms.
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(a) The words "herein," "hereof," "hereto" and "hereunder" and similar
words refer to this Agreement as a whole and not to any particular Article,
Section, subsection or clause in this Agreement.
(b) References herein to an Annex, Schedule, Article, Section,
subsection or clause refer to the appropriate Annex or Schedule to, or Article,
Section, subsection or clause in this Agreement.
(c) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
(d) Where the context requires, provisions relating to the Collateral
or any part thereof, when used in relation to the Grantor, shall refer to the
Grantor's Collateral or the relevant part thereof.
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(e) Any reference in this Agreement to a Loan Document shall include
all appendices, exhibits and schedules thereto, and, unless specifically stated
otherwise all amendments, restatements, supplements or other modifications
thereto, and as the same may be in effect at any and all times such reference
becomes operative.
(f) The term "including" means "including without limitation" except
when used in the computation of time periods.
(g) The terms "Lender," "Collateral Trustee" and "Secured Party"
include their respective successors.
(h) References in this Agreement to any statute shall be to such
statute as amended or modified and in effect from time to time.
ARTICLE II. GRANT OF SECURITY INTEREST
Section 2.1 Collateral. For the purposes of this Agreement, all of the
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following property now owned or at any time hereafter acquired by the Grantor or
in which the Grantor now has or at any time in the future may acquire any right,
title or interests is collectively referred to as the "Collateral":
(a) all Accounts;
(b) all Chattel Paper;
(c) all Deposit Accounts;
(d) all Documents;
(e) all Equipment;
(f) all General Intangibles;
(g) all Instruments;
(h) all Inventory;
(i) all Investment Property;
(j) all Letter of Credit Rights;
(k) all Vehicles;
(l) all books and records pertaining to the other property described
in this Section 2.1;
(m) all other goods and personal property of the Grantor whether
tangible or intangible wherever located;
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(n) all property of the Grantor held by the Collateral Trustee or any
Secured Party, including all property of every description, in the possession or
custody of or in transit to the Collateral Trustee or such Secured Party for any
purpose, including safekeeping, collection or pledge, for the account of the
Grantor, or as to which the Grantor may have any right or power; and
(o) to the extent not otherwise included, all Proceeds.
Section 2.2 Grant of Security Interest in Collateral.
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(a) The Grantor, as collateral security for the full, prompt and
complete payment and performance when due (whether at stated maturity, by
acceleration or otherwise) of the Guaranty Obligations hereby collaterally
assigns, mortgages, pledges and hypothecates to the Collateral Trustee for the
benefit of the Lender, and grants to the Collateral Trustee for the benefit of
the Lender a lien on and security interest in, all of its right, title and
interest in, to and under the Collateral; provided, however, that the foregoing
grant of a security interest shall not include a security interest in Excluded
Property; and provided, further, that if and when the prohibition which prevents
the granting by the Grantor to the Collateral Trustee of a security interest in
such Excluded Property is removed or otherwise terminated, the Collateral
Trustee will be deemed to have, and at all times from and after the date hereof
to have had, a security interest in such Excluded Property, as the case may be.
(b) The Grantor, as collateral security for the full, prompt and
complete payment and performance when due (whether at stated maturity, by
acceleration or otherwise) of the Indenture Obligations hereby collaterally
assigns, mortgages, pledges and hypothecates to the Collateral Trustee for the
benefit of the Trustee and the holders of the Senior Notes, and grants to the
Collateral Trustee for the benefit of the Trustee and the holders of the Senior
Notes, a lien on and security interest in, all of its right, title and interest
in, to and under the Collateral; provided, however, that the foregoing grant of
a security interest shall not include a security interest in any Property of the
Grantor acquired from capital contributions to the Parent, any Proceeds of such
Property or any Property acquired upon the sale, exchange or other disposition
of such Property or Proceeds; and provided, further, that the foregoing grant of
a security interest shall not include a security interest in Excluded Property;
and provided, further, that if and when the prohibition which prevents the
granting by the Grantor to the Collateral Trustee of a security interest in such
Excluded Property is removed or otherwise terminated, the Collateral Trustee
will be deemed to have, and at all times from and after the date hereof to have
had, a security interest in such Excluded Property, as the case may be.
Section 2.3 Cash Collateral Accounts. The Collateral Trustee may
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establish one or more Deposit Accounts and one or more Securities Accounts with
such depositaries and Securities Intermediaries as it in its sole discretion
shall determine. Each such account shall be in the name of the Collateral
Trustee (but may also have words referring to the Grantor and the account's
purpose). The Collateral Trustee shall be the entitlement holder with respect to
each such Securities Account and the only Person authorized to give entitlement
orders with respect thereto. Without limiting the foregoing, funds on deposit in
any Cash Collateral Account may be invested in Cash Equivalents at the direction
of the Collateral Trustee; provided, however, that the Collateral Trustee shall
not have any responsibility for, or bear any risk of loss of, any such
investment or income thereon. Neither the Grantor nor any other Loan Party or
Person claiming on behalf of or through the Grantor or any other Loan Party
shall have any right to demand payment of any of the funds held in any Cash
Collateral Account at any time prior to the payment
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in full of all then outstanding Secured Obligations. The Collateral Trustee
shall apply all funds on deposit in a Cash Collateral Account as provided in the
Collateral Trust Agreement.
ARTICLE III. REPRESENTATIONS AND WARRANTIES
The Grantor hereby represents and warrants to the Collateral Trustee
and the other Secured Parties that:
Section 3.1 Title; No Other Liens. Except for the Lien granted to the
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Collateral Trustee pursuant to this Agreement and Permitted Liens, the Grantor
is the record and beneficial owner of the Pledged Collateral pledged by it
hereunder constituting Instruments or certificated securities, is the
entitlement holder of all Pledged Collateral constituting Investment Property
held in a Securities Account and has rights in or the power to transfer each
other item of Collateral in which a Lien is granted by it hereunder, free and
clear of any and all Liens.
Section 3.2 Perfection and Priority. The security interest granted
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pursuant to this Agreement will constitute a valid and continuing perfected
security interest in favor of the Collateral Trustee in the Collateral for which
perfection is governed by the UCC or filing with the United States Copyright
Office upon (i) the completion of the filings and other actions specified on
Schedule 3 (which, in the case of all filings and other documents referred to on
such schedule, have been delivered to the Collateral Trustee in completed and
duly executed form), (ii) the delivery to the Collateral Trustee of all
Collateral consisting of certificated securities, in each case properly endorsed
for transfer to the Collateral Trustee or in blank, (iii) the execution of
Control Account Agreements with respect to Investment Property not in
certificated form, (iv) the execution of Deposit Account Control Agreements with
respect to all Deposit Accounts (other than any Cash Collateral Account) and (v)
all appropriate filings having been made with the United States Copyright
Office. Such security interest will be prior to all other Liens on the
Collateral except for Permitted Liens.
Section 3.3 State of Incorporation; Chief Executive Office. On the
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date hereof the Grantor's jurisdiction of organization and organizational
identification number are specified on Schedule 1.
Section 3.4 Inventory and Equipment. On the date hereof, the Grantor's
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Inventory and Equipment (other than mobile goods and Inventory or Equipment in
transit) are kept at the locations listed on Schedule 4.
Section 3.5 Pledged Collateral.
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(a) The Pledged Stock, Pledged Partnership Interests and Pledged LLC
Interests pledged hereunder by the Grantor are listed on Schedule 2 and
constitute that percentage of the issued and outstanding equity of all classes
of each issuer thereof as set forth on Schedule 2.
(b) All of the Pledged Stock, Pledged Partnership Interests and
Pledged LLC Interests have been duly authorized and validly issued and are fully
paid and, in the case of Pledged Stock, nonassessable.
(c) Each of the Pledged Notes has been duly authorized, issued and
delivered and where necessary authenticated, and constitutes the legal, valid
and binding
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obligation of the obligor with respect thereto, enforceable in accordance with
its terms, subject to the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, and general equitable principles (whether
considered in a proceeding in equity or at law).
(d) All Pledged Collateral and any Additional Pledged Collateral
consisting of certificated securities has been delivered to the Collateral
Trustee in accordance with Section 4.4(a).
(e) All Pledged Collateral held by a Securities Intermediary in a
Securities Account is in a Control Account.
(f) Other than the Pledged Partnership Interests and the Pledged LLC
Interests that constitute General Intangibles, there is no Pledged Collateral
other than that represented by certificated securities in the possession of the
Collateral Trustee or that consisting of Financial Assets held in a Control
Account.
Section 3.6 Accounts. No amount payable to the Grantor under or in
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connection with any Account is evidenced by any Instrument or Chattel Paper
which has not been delivered to the Collateral Trustee, properly endorsed for
transfer, to the extent delivery is required by Section 4.4.
Section 3.7 No Other Names. Except as set forth on Schedule 1, the Grantor has
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not had, or operated in any jurisdiction within the five-year period preceding
the date hereof under, any trade name, fictitious name or other name other than
its legal name.
Section 3.8 Intellectual Property.
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(a) Schedule 5 lists all Material Intellectual Property of the Grantor
on the date hereof, separately identifying that owned by the Grantor and that
licensed to the Grantor. The Material Intellectual Property set forth on
Schedule 5 for the Grantor constitutes all of the intellectual property rights
necessary to conduct its business.
(b) On the date hereof, all Material Intellectual Property owned by
the Grantor is valid, subsisting, unexpired and enforceable, has not been
adjudged invalid and has not been abandoned and, to the Grantor's knowledge, the
use thereof in the business of the Grantor does not infringe the intellectual
property rights of any other Person.
(c) Except as set forth in Schedule 5, on the date hereof, none of the
Material Intellectual Property owned by the Grantor is the subject of any
licensing or franchise agreement pursuant to which the Grantor is the licensor
or franchisor.
(d) No holding, decision or judgment has been rendered by any
Governmental Authority that would limit, cancel or question the validity of, or
the Grantor's rights in, any Material Intellectual Property.
(e) No action or proceeding seeking to limit, cancel or question the
validity of any Material Intellectual Property owned by the Grantor or the
Grantor's ownership interest therein is on the date hereof pending or, to the
knowledge of the Grantor, threatened. There are
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no claims, judgments or settlements to be paid by the Grantor relating to the
Material Intellectual Property.
Section 3.9 Control Accounts; Deposit Accounts. The only Deposit
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Accounts or Securities Accounts maintained by the Grantor on the date hereof are
those listed on Schedule 6.
ARTICLE IV. COVENANTS
As long as any of the Secured Obligations remain outstanding, the
Grantor agrees with the Collateral Trustee that:
Section 4.1 Generally. The Grantor shall (a) except for the security
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interest created by this Agreement, not create or suffer to exist any Lien upon
or with respect to any of the Collateral, except Permitted Liens; (b) not use or
permit any Collateral to be used unlawfully or in violation of any provision of
this Agreement, any other Loan Document, any Requirement of Law or any policy of
insurance covering the Collateral; (c) not sell, transfer or assign (by
operation of law or otherwise) any Collateral except as permitted under the
Parent Guaranty and the Indenture; and (d) not enter into any agreement or
undertaking restricting the right or ability of the Grantor or the Collateral
Trustee to sell, assign or transfer any of the Collateral, except as permitted
by the Parent Guaranty and the Indenture.
Section 4.2 Maintenance of Perfected Security Interest; Further
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Documentation.
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(a) The Grantor will maintain the security interests created by this
Agreement as a perfected security interests having at least the priority
described in Section 3.2 and shall defend such security interests against the
claims and demands of all Persons.
(b) The Grantor will furnish to the Collateral Trustee from time to
time statements and schedules further identifying and describing the Collateral
and such other reports in connection with the Collateral as the Collateral
Trustee may reasonably request, all in reasonable detail.
(c) At any time and from time to time, upon the written request of the
Collateral Trustee, and at the sole expense of the Grantor, the Grantor will
promptly and duly execute and deliver, and have recorded, such further
instruments and documents and take such further action as the Collateral Trustee
may reasonably request for the purpose of obtaining or preserving the full
benefits of this Agreement and of the rights and powers herein granted,
including the filing of any financing or continuation statement under the UCC
(or other similar laws) in effect in any jurisdiction with respect to the
security interest created hereby, and the execution and delivery of Deposit
Account Control Agreements and Control Account Agreements.
Section 4.3 Changes in Locations, Name, Etc.
--------------------------------
(a) Except upon 90 days' prior written notice to the Collateral
Trustee and delivery to the Collateral Trustee of (i) all additional executed
financing statements and other documents reasonably requested by the Collateral
Trustee to maintain the validity, perfection and priority of the security
interests provided for herein and (ii) if applicable, a written supplement to
11
Schedule 4 showing any additional location at which Inventory or Equipment shall
be kept, the Grantor will not:
(i) permit any of the Inventory, Equipment or Pledged Notes to be kept
at a location other than those listed on Schedule 4;
(ii) change its state of incorporation from that referred to in
Section 3.3; or
(iii) change its name, identity or corporate structure to such an
extent that any financing statement filed in connection with this Agreement
would become misleading.
(b) The Grantor will keep and maintain at its own cost and expense
satisfactory and complete records of the Collateral, including a record of all
payments received and all credits granted with respect to the Collateral and all
other dealings with the Collateral. If requested by the Collateral Trustee, the
security interest of the Collateral Trustee shall be noted on the certificate of
title of each Vehicle.
Section 4.4 Pledged Collateral.
------------------
(a) The Grantor will (i) deliver to the Collateral Trustee all
certificates representing or evidencing any Pledged Collateral (including
Additional Pledged Collateral), and, at the Collateral Trustee's request, all
Instruments, whether now existing or hereafter acquired, in suitable form for
transfer by delivery or, as applicable, accompanied by the Grantor's
endorsement, where necessary, or duly executed instruments of transfer or
assignment in blank, all in form and substance satisfactory to the Collateral
Trustee, together, in respect of any Additional Pledged Collateral, with a
Pledge Amendment, duly executed by the Grantor, in substantially the form of
Annex 3 (a "Pledge Amendment") or such other documentation acceptable to the
Collateral Trustee, (ii) authorize the Collateral Trustee to attach each Pledge
Amendment to this Agreement and (iii) maintain all other Pledged Collateral
constituting Investment Property in a Control Account. The Collateral Trustee
shall have the right, at any time in its discretion and without notice to the
Grantor, to transfer to or to register in its name or in the name of its
nominees any or all of the Pledged Collateral. The Collateral Trustee shall have
the right at any time to exchange certificates or instruments representing or
evidencing any of the Pledged Collateral for certificates or instruments of
smaller or larger denominations.
(b) Except as provided in Article V, the Grantor shall be entitled to
receive all cash dividends paid in respect of the Pledged Collateral (other than
liquidating or distributing dividends) with respect to the Pledged Collateral.
Any sums paid upon or in respect of any of the Pledged Collateral upon the
liquidation or dissolution of any issuer of any of the Pledged Collateral, any
distribution of capital made on or in respect of any of the Pledged Collateral
or any property distributed upon or with respect to any of the Pledged
Collateral pursuant to the recapitalization or reclassification of the capital
of any issuer of Pledged Collateral or pursuant to the reorganization thereof
shall, unless otherwise subject to a perfected security interest in favor of the
Collateral Trustee, be delivered to the Collateral Trustee to be held by it
hereunder as additional collateral security for the Secured Obligations. If any
sums of money or property so paid or distributed in respect of any of the
Pledged Collateral shall be received by the Grantor, the Grantor shall, until
such money or property is paid or delivered to the Collateral Trustee, hold such
money or property in trust for the Collateral Trustee, segregated from other
funds of the Grantor, as additional security for the Secured Obligations.
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(c) Except as provided in Article V, the Grantor will be entitled to
exercise all voting, consent and corporate rights with respect to the Pledged
Collateral; provided, however, that no vote shall be cast, consent given or
right exercised or other action taken by the Grantor which would impair the
Collateral or which would be inconsistent with or result in any violation of any
provision of the Credit Agreement, the Intercompany Note, this Agreement or any
other Loan Document or which would, without prior notice to the Collateral
Trustee, enable or permit any issuer of Pledged Collateral that is a Subsidiary
of the Grantor to issue any stock or other equity securities of any nature or to
issue any other securities convertible into or granting the right to purchase or
exchange for any stock or other equity securities of any nature of any issuer of
Pledged Collateral, other than the securities issued by FINOVA Mezzanine Capital
Inc. pursuant to the Reorganization Plan.
(d) The Grantor shall not grant Control over any Investment Property
to any Person other than the Collateral Trustee.
(e) The Grantor will not agree to any amendment of an LLC Agreement
or Partnership Agreement that in any way adversely affects the perfection of the
security interest of the Collateral Trustee in the Pledged Partnership Interests
or Pledged LLC Interests pledged by the Grantor hereunder, including any
amendment that would cause the membership interest or partnership interest of
the Grantor to be a security under Section 8-103 of the UCC.
Section 4.5 Control Accounts; Deposit Accounts.
----------------------------------
(a) The Grantor will (i) deposit in an Approved Deposit Account all
cash received by the Grantor, (ii) not establish or maintain any Securities
Account that is not a Control Account and (iii) not establish or maintain any
Deposit Account other than Approved Deposit Accounts; provided, however, that
the Grantor may maintain payroll, withholding tax and other fiduciary accounts
as required by law.
(b) The Grantor shall instruct each Account Debtor or other Person
obligated to make a payment to the Grantor under a General Intangible to make
payment, or to continue to make payment, as the case may be, to an Approved
Deposit Account and will deposit in an Approved Deposit Account all Proceeds of
such Accounts and General Intangibles received by the Grantor from any other
Person immediately upon receipt.
(c) In the event (i) the Grantor or any Approved Securities
Intermediary or Approved Deposit Bank shall, after the date hereof, terminate an
agreement with respect to the maintenance of a Control Account or Approved
Deposit Account for any reason, (ii) the Collateral Trustee shall demand such
termination as a result of the failure of an Approved Securities Intermediary or
Approved Deposit Account Bank to comply with the terms of the applicable Control
Account Agreement or Deposit Account Control Agreement, or (iii) the Collateral
Trustee determines in its sole discretion that the financial condition of an
Approved Securities Intermediary or Approved Deposit Account Bank, as the case
may be, has materially deteriorated, the Grantor agrees to notify all of its
obligors that were making payments to such terminated Control Account or
Approved Deposit Account, as the case may be, to make all future payments to
another Control Account or Approved Deposit Account, as the case may be.
Section 4.6 Delivery of Instruments and Chattel Paper. If any amount
-----------------------------------------
payable under or in connection with any of the Collateral owned by the Grantor
shall be or become evidenced by an Instrument or Chattel Paper, the Grantor
shall immediately deliver such
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Instrument or Chattel Paper to the Collateral Trustee, duly indorsed in a manner
satisfactory to the Collateral Trustee.
Section 4.7 Intellectual Property.
---------------------
(a) The Grantor (either itself or through licensees) will (i) continue
to use each Trademark that is Material Intellectual Property in order to
maintain such Trademark in full force and effect with respect to each class of
goods for which such Trademark is currently used, free from any claim of
abandonment for non-use, (ii) use such Trademark with any applicable and
appropriate notice of registration and all other notices and legends required by
applicable Requirements of Law, (iii) not adopt or use any ▇▇▇▇ which is
confusingly similar or a colorable imitation of such Trademark unless the
Collateral Trustee shall obtain a perfected security interest in such ▇▇▇▇
pursuant to this Agreement and (iv) not (and not permit any licensee or
sublicensee thereof to) do any act or knowingly omit to do any act whereby such
Trademark may become invalidated or impaired in any way.
(b) The Grantor (either itself or through licensees) will not do any
act, or omit to do any act, whereby any Patent which is Material Intellectual
Property may become forfeited, abandoned or dedicated to the public.
(c) The Grantor (either itself or through licensees) (i) will not (and
will not permit any licensee or sublicensee thereof to) do any act or omit to do
any act whereby any portion of the Copyrights which is Material Intellectual
Property may become invalidated or otherwise impaired and (ii) will not (either
itself or through licensees) do any act whereby any portion of the Copyrights
which is Material Intellectual Property may fall into the public domain.
(d) The Grantor (either itself or through licensees) will not do any
act, or omit to do any act, whereby any trade secret which is Material
Intellectual Property may become publicly available or otherwise unprotectable.
(e) The Grantor (either itself or through licensees) will not do any
act that knowingly uses any Material Intellectual Property to infringe the
intellectual property rights of any other Person.
(f) The Grantor will notify the Collateral Trustee immediately if it
knows, or has reason to know, that any application or registration relating to
any Material Intellectual Property may become forfeited, abandoned or dedicated
to the public, or of any adverse determination or development (including the
institution of, or any such determination or development in, any proceeding in
the United States Patent and Trademark Office, the United States Copyright
Office or any court or tribunal in any country) regarding the Grantor's
ownership of, right to use, interest in, or the validity of, any Material
Intellectual Property or the Grantor's right to register the same or to own and
maintain the same.
(g) Whenever the Grantor, either by itself or through any agent,
licensee or designee, shall file an application for the registration of any
Intellectual Property with the United States Patent and Trademark Office, the
United States Copyright Office or any similar office or agency within or outside
the United States, the Grantor shall report such filing to the Collateral
Trustee within five Business Days after the last day of the fiscal quarter in
which such filing occurs. Upon request of the Collateral Trustee, the Grantor
shall execute and deliver, and have recorded, any and all agreements,
instruments, documents, and papers as the Collateral Trustee
14
may request to evidence the Collateral Trustee's security interest in any
Copyright, Patent or Trademark and the goodwill and general intangibles of the
Grantor relating thereto or represented thereby.
(h) The Grantor will take all reasonable actions necessary or
requested by the Collateral Trustee, including in any proceeding before the
United States Patent and Trademark Office, the United States Copyright Office or
any similar office or agency, to maintain and pursue each application (and to
obtain the relevant registration) and to maintain each registration of any
Copyright, Trademark or Patent that is Material Intellectual Property, including
filing of applications for renewal, affidavits of use, affidavits of
incontestability and opposition and interference and cancellation proceedings.
(i) In the event that any Material Intellectual Property is infringed
upon or misappropriated or diluted by a third party, the Grantor shall notify
the Collateral Trustee promptly after the Grantor learns thereof. The Grantor
shall take appropriate action in response to such infringement, misappropriation
of dilution, including promptly bringing suit for infringement, misappropriation
or dilution and to recover any and all damages for such infringement,
misappropriation of dilution, and shall take such other actions as may be
appropriate in its reasonable judgment under the circumstances to protect such
Material Intellectual Property.
(j) Unless otherwise agreed to by the Collateral Trustee, the Grantor
will execute and deliver to the Collateral Trustee for filing in (i) the United
States Copyright Office a short-form copyright security agreement in the form
attached hereto as Annex 4, (ii) in the United States Patent and Trademark
Office a short-form patent security agreement in the form attached hereto as
Annex 5 and (iii) the United States Patent and Trademark Office a short-form
trademark security agreement in form attached hereto as Annex 6, with respect to
all registered Copyrights and Trademarks, and all of the Grantor's Patents.
Section 4.8 Vehicles. Upon the request of the Collateral Trustee,
--------
within 30 days after the date of such request and, with respect to any Vehicles
acquired by the Grantor subsequent to the date of any such request, within 30
days after the date of acquisition thereof, the Grantor shall file all
applications for certificates of title/ownership indicating the Collateral
Trustee's first priority security interest in the Vehicle covered by such
certificate, and any other necessary documentation, in each office in each
jurisdiction which the Collateral Trustee shall deem advisable to perfect its
security interests in the Vehicles.
Section 4.9 Insurance. The Grantor shall (i) maintain all insurance
---------
required by the Parent Guaranty and (ii) cause all such insurance to name the
Collateral Trustee on behalf of the Secured Parties as additional insured, and
to provide that no cancellation, material addition in amount or material change
in coverage shall be effective until after 30 days' written notice thereof to
the Collateral Trustee.
Section 4.10 Special Property. Each Grantor shall, on the Closing Date
----------------
and on the last Business Day of each calendar month, or more often if requested
by the Collateral Trustee, provide Schedule 4.10 to the Collateral Trustee
identifying in reasonable detail the Special Property and any other Property
with respect to which the Collateral Trustee on behalf of the Secured Parties
does not have a Lien (and stating in such schedule the extent to which such
Property constitutes Excluded Property) and shall provide to the Collateral
Trustee the book value
15
of such Property and such other information regarding such Property as the
Collateral Trustee may reasonably request.
Section 4.11 Use of Collateral. Following the occurrence of a Default
-----------------
or Event of Default, the Grantor will not use any of the Collateral to make any
payment of principal, interest or otherwise in respect of the Senior Notes.
ARTICLE V. Remedial Provisions
Section 5.1 Code and Other Remedies. During the continuance of an
-----------------------
Event of Default, the Collateral Trustee may exercise, in addition to all other
rights and remedies granted to it in this Agreement and in any other instrument
or agreement securing, evidencing or relating to the Secured Obligations, all
rights and remedies of a secured party under the UCC or any other applicable
law. Without limiting the generality of the foregoing, the Collateral Trustee,
without demand of performance or other demand, presentment, protest,
advertisement or notice of any kind (except any notice required by law referred
to below) to or upon the Grantor or any other Person (all and each of which
demands, defenses, advertisements and notices are hereby waived), may in such
circumstances forthwith collect, receive, appropriate and realize upon the
Collateral, or any part thereof, and/or may forthwith sell, lease, assign, give
option or options to purchase, or otherwise dispose of and deliver the
Collateral or any part thereof (or contract to do any of the foregoing), in one
or more parcels at public or private sale or sales, at any exchange, broker's
board or office of the Collateral Trustee or any Secured Party or elsewhere upon
such terms and conditions as it may deem advisable and at such prices as it may
deem best, for cash or on credit or for future delivery without assumption of
any credit risk. The Collateral Trustee shall have the right upon any such
public sale or sales, and, to the extent permitted by law, upon any such private
sale or sales, to purchase the whole or any part of the Collateral so sold, free
of any right or equity of redemption in the Grantor, which right or equity is
hereby waived and released. The Grantor further agrees, at the Collateral
Trustee's request, to assemble the Collateral and make it available to the
Collateral Trustee at places which the Collateral Trustee shall reasonably
select, whether at the Grantor's premises or elsewhere. The Collateral Trustee
shall apply the net proceeds of any action taken by it pursuant to this Section
5.1 in the manner set forth in the Collateral Trust Agreement. To the extent
permitted by applicable law, the Grantor waives all claims, damages and demands
it may acquire against the Collateral Trustee or any other Secured Party arising
out of the exercise by them of any rights hereunder. If any notice of a proposed
sale or other disposition of Collateral shall be required by law, such notice
shall be deemed reasonable and proper if given at least 10 days before such sale
or other disposition.
Section 5.2 Accounts and Payments in Respect of General Intangibles.
-------------------------------------------------------
(a) If required by the Collateral Trustee at any time during the
continuance of an Event of Default, any payments of Accounts or payments in
respect of General Intangibles, when collected by the Grantor, shall be
forthwith (and, in any event, within two Business Days) deposited by the Grantor
in the exact form received, duly indorsed by the Grantor to the Collateral
Trustee if required, in a Cash Collateral Account. Until so turned over, such
payments shall be held by the Grantor in trust for the Collateral Trustee,
segregated from other funds of the Grantor. Each such deposit of Proceeds of
Accounts and payments in respect of General Intangibles shall be accompanied by
a report identifying in reasonable detail the nature and source of the payments
included in the deposit.
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(b) At the Collateral Trustee's request, during the continuance of an
Event of Default, the Grantor shall deliver to the Collateral Trustee all
original and other documents evidencing, and relating to, the agreements and
transactions which gave rise to the Accounts or payments in respect of General
Intangibles, including all original orders, invoices and shipping receipts.
(c) The Collateral Trustee may, without notice, at any time during the
continuance of an Event of Default, limit or terminate the authority of the
Grantor to collect its Accounts or amounts due under General Intangibles or any
thereof.
(d) The Collateral Trustee in its own name or in the name of others
may at any time during the continuance of an Event of Default communicate with
Account Debtors to verify with them to the Collateral Trustee's satisfaction the
existence, amount and terms of any Accounts or amounts due under any General
Intangibles.
(e) Upon the request of the Collateral Trustee at any time during the
continuance of an Event of Default, the Grantor shall notify Account Debtors
that the Accounts or General Intangibles have been collaterally assigned to the
Collateral Trustee and that payments in respect thereof shall be made directly
to the Collateral Trustee. In addition, the Collateral Trustee may at any time
during the continuance of an Event of Default enforce the Grantor's rights
against such Account Debtors and obligors of General Intangibles.
(f) Anything herein to the contrary notwithstanding, the Grantor shall
remain liable under each of the Accounts and payments in respect of General
Intangibles to observe and perform all the conditions and obligations to be
observed and performed by it thereunder, all in accordance with the terms of any
agreement giving rise thereto. Neither the Collateral Trustee nor any other
Secured Party shall have any obligation or liability under any agreement giving
rise to an Account or a payment in respect of a General Intangible by reason of
or arising out of this Agreement or the receipt by the Collateral Trustee nor
any other Secured Party of any payment relating thereto, nor shall the
Collateral Trustee nor any other Secured Party be obligated in any manner to
perform any of the obligations of the Grantor under or pursuant to any agreement
giving rise to an Account or a payment in respect of a General Intangible, to
make any payment, to make any inquiry as to the nature or the sufficiency of any
payment received by it or as to the sufficiency of any performance by any party
thereunder, to present or file any claim, to take any action to enforce any
performance or to collect the payment of any amounts which may have been
assigned to it or to which it may be entitled at any time or times.
Section 5.3 Pledged Collateral.
------------------
(a) During the continuance of an Event of Default, upon notice by the
Collateral Trustee to the Grantor, (i) the Collateral Trustee shall have the
right to receive any and all Proceeds of the Pledged Collateral and make
application thereof to the Obligations in the order set forth in the Collateral
Trust Agreement, and (ii) the Collateral Trustee or its nominee may exercise (A)
all voting, consent, corporate and other rights pertaining to the Pledged
Collateral at any meeting of shareholders, partners or members, as the case may
be, of the relevant issuer or issuers of Pledged Collateral or otherwise and (B)
any and all rights of conversion, exchange and subscription and any other
rights, privileges or options pertaining to the Pledged Collateral as if it were
the absolute owner thereof (including the right to exchange at its discretion
any and all of the Pledged Collateral upon the merger, consolidation,
reorganization, recapitalization or other fundamental change in the corporate
structure of any issuer of Pledged Securities, the right to
17
deposit and deliver any and all of the Pledged Collateral with any committee,
depositary, transfer agent, registrar or other designated agency upon such terms
and conditions as the Collateral Trustee may determine), all without liability
except to account for property actually received by it, but the Collateral
Trustee shall have no duty to the Grantor to exercise any such right, privilege
or option and shall not be responsible for any failure to do so or delay in so
doing.
(b) In order to permit the Collateral Trustee to exercise the voting
and other consensual rights which it may be entitled to exercise pursuant hereto
and to receive all dividends and other distributions which it may be entitled to
receive hereunder, (i) the Grantor shall promptly execute and deliver (or cause
to be executed and delivered) to the Collateral Trustee all such proxies,
dividend payment orders and other instruments as the Collateral Trustee may from
time to time reasonably request and (ii) without limiting the effect of clause
(i) above, the Grantor hereby grants to the Collateral Trustee an irrevocable
proxy to vote all or any part of the Pledged Collateral and to exercise all
other rights, powers, privileges and remedies to which a holder of the Pledged
Collateral would be entitled (including giving or withholding written consents
of shareholders, partners or members, as the case may be, calling special
meetings of shareholders, partners or members, as the case may be, and voting at
such meetings), which proxy shall be effective, automatically and without the
necessity of any action (including any transfer of any Pledged Collateral on the
record books of the issuer thereof) by any other person (including the issuer of
such Pledged Collateral or any officer or agent thereof) during the continuance
of an Event of Default and which proxy shall only terminate upon the payment in
full of the Secured Obligations.
(c) The Grantor hereby expressly authorizes and instructs each issuer
of any Pledged Collateral pledged hereunder by the Grantor to (i) comply with
any instruction received by it from the Collateral Trustee in writing that (A)
states that an Event of Default has occurred and is continuing and (B) is
otherwise in accordance with the terms of this Agreement, without any other or
further instructions from the Grantor, and the Grantor agrees that such issuer
shall be fully protected in so complying and (ii) unless otherwise expressly
permitted hereby, pay any dividends or other payments with respect to the
Pledged Collateral directly to the Collateral Trustee.
Section 5.4 Proceeds to be Turned Over To Collateral Trustee. All
------------------------------------------------
Proceeds received by the Collateral Trustee hereunder shall be held by the
Collateral Trustee in a Cash Collateral Account. All Proceeds while held by the
Collateral Trustee in a Cash Collateral Account (or by the Grantor in trust for
the Collateral Trustee) shall continue to be held as collateral security for the
Secured Obligations and shall not constitute payment thereof until applied as
provided in the Collateral Trust Agreement.
Section 5.5 Deficiency. The Grantor shall remain liable for any
----------
deficiency if the proceeds of any sale or other disposition of the Collateral
are insufficient to pay the Secured Obligations and the fees and disbursements
of any attorneys employed by the Collateral Trustee or any other Secured Party
to collect such deficiency.
Section 5.6 Execution of Financing Statements. The Grantor authorizes
---------------------------------
the Collateral Trustee to file or record financing statements and other filing
or recording documents or instruments with respect to the Collateral without the
signature of the Grantor in such form and in such offices as the Collateral
Trustee reasonably determines appropriate to perfect the security interests of
the Collateral Trustee under this Agreement.
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ARTICLE VI. MISCELLANEOUS
Section 6.1 Amendments in Writing. None of the terms or provisions of
---------------------
this Agreement may be waived, amended, supplemented or otherwise modified except
in accordance with the Collateral Trust Agreement.
Section 6.2 Notices. All notices, requests and demands to or upon the
-------
Collateral Trustee or the Grantor hereunder shall be effected in the manner
provided for in the Collateral Trust Agreement.
Section 6.3 No Waiver by Course of Conduct; Cumulative Remedies.
---------------------------------------------------
Neither the Collateral Trustee nor any other Secured Party shall by any act
(except by a written instrument pursuant to Section 6.1), delay, indulgence,
omission or otherwise be deemed to have waived any right or remedy hereunder or
to have acquiesced in any Default or Event of Default. No failure to exercise,
nor any delay in exercising, on the part of the Collateral Trustee or any other
Secured Party, any right, power or privilege hereunder shall operate as a waiver
thereof. No single or partial exercise of any right, power or privilege
hereunder shall preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. A waiver by the Collateral Trustee or
any other Secured Party of any right or remedy hereunder on any one occasion
shall not be construed as a bar to any right or remedy which the Collateral
Trustee or such other Secured Party would otherwise have on any future occasion.
The rights and remedies herein provided are cumulative, may be exercised singly
or concurrently and are not exclusive of any other rights or remedies provided
by law.
Section 6.4 Successors and Assigns. This Agreement shall be binding
----------------------
upon the successors and assigns of each Grantor and shall inure to the benefit
of the Collateral Trustee and each other Secured Party and their successors and
assigns; provided, however, that no Grantor may assign, transfer or delegate any
of its rights or obligations under this Agreement without the prior written
consent of the Collateral Trustee, except as otherwise permitted under the
Parent Guaranty and the Indenture.
Section 6.5 Counterparts. This Agreement may be executed by one or
------------
more of the parties to this Agreement on any number of separate counterparts
(including by telecopy), and all of said counterparts taken together shall be
deemed to constitute one and the same agreement.
Section 6.6 Severability. Any provision of this Agreement which 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, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
Section 6.7 Section Headings. The Article and Section titles contained
----------------
in this Agreement are and shall be without substantive meaning or content of any
kind whatsoever and are not part of the agreement of the parties hereto.
Section 6.8 Entire Agreement. This Agreement together with the other
----------------
Loan Documents represents the entire agreement of the parties and supersedes all
prior agreements and understandings relating to the subject matter hereof.
19
Section 6.9 Governing Law. This agreement and the rights and
-------------
obligations of the parties hereto shall be governed by, and construed and
interpreted in accordance with, the law of the State of New York.
Section 6.10 Reinstatement. The Grantor further agrees that, if any
-------------
payment made by any Loan Party or other Person and applied to the Secured
Obligations is at any time annulled, avoided, set aside, rescinded, invalidated,
declared to be fraudulent or preferential or otherwise required to be refunded
or repaid, or the proceeds of Collateral are required to be returned by any
Secured Party to such Loan Party, its estate, trustee, receiver or any other
party, including the Grantor, under any bankruptcy law, state or federal law,
common law or equitable cause, then, to the extent of such payment or repayment,
any Lien or other Collateral securing such liability shall be and remain in full
force and effect, as fully as if such payment had never been made or, if prior
thereto the Lien granted hereby or other Collateral securing such liability
hereunder shall have been released or terminated by virtue of such cancellation
or surrender), such Lien or other Collateral shall be reinstated in full force
and effect, and such prior cancellation or surrender shall not diminish,
release, discharge, impair or otherwise affect any Lien or other Collateral
securing the obligations of the Grantor in respect of the amount of such
payment.
Section 6.11 Security Interest Absolute. All rights of the Collateral
--------------------------
Trustee hereunder and all obligations of the Grantor hereunder shall be absolute
and unconditional irrespective of:
(a) any lack of validity, regularity or enforceability, in whole or in
part, of any of the Loan Documents or the Indenture;
(b) any change in the terms of any or all of the Secured Obligations
or any amendment or waiver of, or consent to any departure from, any provision
of any of the Loan Documents or the Indenture;
(c) any taking, exchange, release or nonperfection of any Collateral,
or any taking, release or amendment or waiver of, or consent to any departure
from, any guaranty, for any or all of the Secured Obligations;
(d) any manner of application of Collateral or Proceeds to any or all
of the Secured Obligations, or any manner of sale or other disposition of any
Collateral or any other assets of the Grantor or its Subsidiaries;
(e) any change, restructuring or termination of the corporate
structure or existence of the Grantor or any of its Subsidiaries; and
(f) any other circumstance which might otherwise constitute a defense
available to, or a discharge of, the Grantor with respect to the security
interests granted hereunder.
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In witness whereof, the Grantor has caused this Pledge and Security
Agreement to be duly executed and delivered as of the date first above written.
THE FINOVA GROUP INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
________________________
Name:
Title:
ACCEPTED AND AGREED:
WILMINGTON TRUST COMPANY, as Collateral Trustee
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
______________________________
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
21
Annex 1 to
Pledge and Security Agreement
Deposit Account Control Agreement
Date
Bank
Bank Address
Ladies and Gentlemen:
Reference is made to the accounts listed on the accompanying Exhibit B
maintained with you (the "Bank") by ________________ (the "Company") into which
funds are deposited from time to time (the "Accounts").
The Company has granted to Wilmington Trust Company, as Collateral
Trustee (the "Collateral Trustee") for the benefit of the Secured Parties (as
defined in the Collateral Trust Agreement dated August 21, 2001 among the
Company and certain of its affiliates, Berkadia LLC and The Bank of New York as
indenture trustee), a security interest in certain property of the Company,
including, among other things, accounts, inventory, equipment, instruments,
general intangibles and all proceeds thereof (the "Collateral"). Payments with
respect to the Collateral are or hereafter may be made to the Accounts.
The Company hereby transfers to the Collateral Trustee ownership and
control of the Accounts and all funds and other property on deposit therein. By
your execution of this letter agreement, you (i) agree that you will comply with
instructions originated by the Collateral Trustee directing disposition of the
funds and other property on deposit in the Accounts without further consent by
the Company, and (ii) acknowledge that the Collateral Trustee now has ownership
and control of the Accounts, that all funds in the Accounts shall be transferred
to the Collateral Trustee as provided herein, that the Accounts are being
maintained by you for the benefit of the Collateral Trustee and that all amounts
and other property therein are held by you as custodian for the Collateral
Trustee.
Except as provided in paragraph (d) below, the Accounts shall not be
subject to deduction, set-off, banker's lien, counterclaim, defense, recoupment
or any other right in favor of any person or entity other than the Collateral
Trustee. By your execution of this letter agreement you also acknowledge that,
as of the date hereof, you have received no notice of any other pledge or
assignment of the Accounts and have not executed any agreements with third
parties covering the disposition of funds in the Accounts. You agree with the
Collateral Trustee as follows:
(a) Prior to the delivery to you of a written notice from the
Collateral Trustee in the form of Exhibit A hereto (a "Blockage Notice")
and until such time as the Collateral Trustee shall deliver to you a
written notice ( a "Rescission Notice") that the Blockage Notice has been
rescinded, you are authorized to accept written instructions with respect
to the Accounts from authorized officers of the Company. Notwithstanding
anything to the contrary contained herein or in any other agreement
relating to the Accounts, the Accounts are and will be maintained for the
benefit of the Collateral Trustee, will be titled as noted on Exhibit B and
will be subject to written instructions from an authorized officer of the
Collateral Trustee.
A1-1
(b) Prior to the delivery to you of a Blockage Notice from the
Collateral Trustee and after such time as the Collateral Trustee shall
deliver to you a Rescission Notice that the Blockage Notice has been
rescinded, you are authorized to continue to honor instructions previously
provided to you by authorized officers of the Company with respect to the
end-of-day disposition of funds on deposit in the Accounts(s). Exhibit B
attached hereto identifies the current instructions as to end-of-day
disposition of funds on deposit in each of the Accounts(s).
(c) From and after the delivery to you of a Blockage Notice and until
such time as you shall receive a Rescission Notice with respect thereto,
you will transfer (by wire transfer or other method of transfer mutually
acceptable to you and the Collateral Trustee) to the Collateral Trustee, in
same day funds, on each business day, the entire balance in the Accounts to
the following Account:
ABA Number: _____________________
[name and address of Collateral Trustee's Bank]
Account Name: _________________________
Concentration Account
Account Number: _______________________
Reference: ____________________________
Attn: _________________________________
or to such other account as the Collateral Trustee may from time to time
designate in writing (the "Collateral Trustee Concentration Account")
(d) All customary service charges and fees with respect to the
Accounts shall be debited to the Accounts or invoiced to the Company
consistent with past practices. In the event insufficient funds remain in
the Accounts to cover such customary service charges and fees, the Company
shall pay and indemnify you for the amounts of such customary service
charges and fees.
This letter agreement shall be binding upon and shall inure to the
benefit of you, the Company and the Collateral Trustee and the respective
successors, transferees and assigns of any of the foregoing. This letter
agreement may not be modified except upon the mutual consent of the Collateral
Trustee, the Company and you. You may terminate the letter agreement only upon
30 days' prior written notice to the Company and the Collateral Trustee. The
Collateral Trustee may terminate this letter agreement upon 10 days' prior
written notice to you and the Company. Upon such termination you shall close the
Accounts and transfer all funds in the Accounts to the Collateral Trustee
Concentration Account or as otherwise directed by the Collateral Trustee. After
any such termination, you shall nonetheless remain obligated promptly to
transfer to the Collateral Trustee Concentration Account or as the Collateral
Trustee may otherwise direct all funds and other property received in respect of
the Accounts.
This letter agreement may be executed in any number of counterparts
and by different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which when taken together
shall constitute one and the same agreement. Delivery of an executed counterpart
of a signature page to this letter agreement by
A1-2
telecopier shall be effective as delivery of a manually executed counterpart of
this letter agreement.
This letter agreement supersedes all prior agreements, oral or
written, with respect to the subject matter hereof and may not be amended,
modified or supplemented except by a writing signed by the Collateral Trustee,
the Company and you.
This letter agreement shall be governed by, and construed in
accordance with, the law of the State of New York.
A1-3
Upon acceptance of this letter agreement it will be the valid and
binding obligation of the Company, the Collateral Trustee, and you, in
accordance with its terms.
Very truly yours,
FINOVA Capital Corporation
By: _________________________________
Name:
Title:
Wilmington Trust Company, as Collateral Trustee
By: _________________________________
Name:
Title:
Acknowledged and agreed to as of
the date first above written:
[Bank Name]
By:_________________________
Name:
Title:
A1-4
EXHIBIT A
to
DEPOSIT ACCOUNT CONTROL AGREEMENT
Form of Collateral Trustee Blockage Notice
[Deposit Account Bank]
[Address]
Re: Accounts on Exhibit B attached hereto (the "Accounts")
Ladies and Gentlemen:
Reference is made to the Accounts and that certain Deposit Account
Control Agreement dated August 21, 2001 among you, Wilmington Trust Company, as
Collateral Trustee (the "Collateral Trustee"), and [_____________] (the "Deposit
Account Control Agreement"). Capitalized terms used herein shall have the
meanings given to them in the Deposit Account Control Agreement.
The Collateral Trustee hereby notifies you that, from and after the
date of this notice and until such time as the Collateral Trustee shall deliver
to you a Rescission Notice, you are hereby directed to transfer (by wire
transfer or other method of transfer mutually acceptable to you and the
Collateral Trustee) to the Collateral Trustee, in same day funds, on each
business day, the entire balance in the Accounts to the Collateral Trustee
Concentration Account specified in paragraph (c) of the Deposit Account Control
Agreement or to such other account as the Collateral Trustee may from time to
time designate in writing.
Very truly yours,
Wilmington Trust Company, as Collateral Trustee
By: ______________________________
Name:
Title:
A1-5
EXHIBIT B
to
DEPOSIT ACCOUNT CONTROL AGREEMENT
Account Listing and Instructions
As of _________ __, 2001
Company instructions for
Account Name Account Number transfer of end-of-day funds
------------ -------------- ----------------------------
[Name and Address
of Bank or Broker]
A1-6
Annex 2 to
Pledge and Security Agreement
CONTROL ACCOUNT AGREEMENT
[Name and Address
of Bank of Broker]
[Date]
Ladies and Gentlemen:
The undersigned ___________________ (the "Pledgor") together with
certain of its affiliates are party to a Pledge and Security Agreement dated
August 21, 2001 in favor of Wilmington Trust Company, as Collateral Trustee for
the Secured Parties referred to therein (the "Pledgee," and such agreement the
"Pledge and Security Agreement") pursuant to which a security interest is
granted by the Pledgor in all present and future Assets (hereinafter defined) in
Account No. _______ of the Pledgor (the "Pledge").
In connection therewith, the Pledgor hereby instructs you to:
1. maintain the Account, as "_________ - ________ Control Account";
2. hold in the Account the assets, including all financial assets,
securities, security entitlements and all other property and rights now or
hereafter received in such Account (collectively, the "Assets");
3. provide to the Pledgor, with a duplicate copy to the Pledgee, a
monthly statement of Assets; and
4. until such a time as Pledgee shall give you written notice that the
Pledgor's rights under this sentence have been terminated (an "Activation
Notice") (upon which notice you may rely exclusively), the Pledgor acting
through an authorized officer may (a) exercise any voting rights that it
may have with respect to any of the Assets, (b) give instructions to enter
into purchase or sale transactions in the Account and (c) withdraw and
receive for its own use all regularly scheduled interest and dividends paid
with respect to the Assets and all cash proceeds of any sale of Assets
("Permitted Withdrawals"); provided, that, with respect to any transaction
that is not a Permitted Withdrawal (each, a "Non-Conforming Transaction"),
unless the Pledgee has consented to such Non-Conforming Transaction and you
have received written notice of such consent, you shall not deliver cash
and/or securities, or proceeds from the sale of, or distributions on,
securities out of the Account to the Pledgor or to any other person or
entity in respect of such Non-Conforming Transaction unless you are
required by law or by court order to do so; the Pledgor hereby agrees it
shall not to instruct you to execute any transactions that would not be
Permitted Withdrawals. Following delivery of an Activation Notice, you
shall honor only the instructions or entitlement orders in regard to or in
connection with the Account given by an authorized officer of the Pledgee,
until such time as you receive written notice from the Pledgee that the
Activation Notice is rescinded (a "Rescission Notice").
By your signature below, you agree that you will comply with the
entitlement orders and instructions of an Authorized Officer of the Pledgee
(including without limitation any instructions with respect to sales, trades,
transfers and withdrawals of cash or other of the Assets)
A2-1
without the consent of the Pledgor or any other person (it being understood and
agreed by the Pledgor that you shall have no duty or obligation whatsoever of
any kind or character to have knowledge of the terms of the Pledge and Security
Agreement or to determine whether or not an event of default exists thereunder).
The Pledgor hereby agrees to indemnify and hold you harmless, as well as your
affiliates, officers and employees from and against any and all claims, causes
of action, liabilities, lawsuits, demands and/or damages, including any and all
court costs and reasonable attorney's fees, that may result by reason of your
complying with such instructions of the Pledgee from and after receipt of an
Activation Notice until subsequent receipt of a Rescission Notice. In the event
that you are sued or become involved in litigation as a result of complying with
the above stated written instructions, the Pledgor and the Pledgee agree that
you shall be entitled to charge all reasonable costs and fees you incur in
connection with such litigation to the Assets in the Account and to withdraw
such sums as the costs and charges accrue.
For the purpose of this Agreement, the term "Authorized Officer of
Pledgor" and "Authorized Officer of Pledgee" shall refer in the singular to (i)
with respect to the Pledgor, any Person who you are authorized to accept
instruction from in writing by the Pledgor from time to time (a copy of which
instruction shall be provided by the Pledgor to the Pledgee contemporaneously
with such authorization) and (ii) with respect to the Pledgee, any Person who is
a [vice president or managing director] of the Pledgee. In the event that the
Pledgor shall find it advisable to designate a replacement of any of its
Authorized Officers from time to time, written notice of any such replacement
shall be given to you and the Pledgee.
Except with respect to the obligations and duties as set forth herein,
this Agreement shall not impose or create any obligations or duties upon you
greater than or in addition to the customary and usual obligations and duties of
yours to the Pledgor.
As long as the Assets are pledged to the Pledgee: (i) you will not
invade the Assets to cover margin debits or calls, if any, in any other accounts
of the Pledgor and (ii) you agree that, except for liens resulting from
customary commissions, fees or charges based upon transactions in the Account,
you subordinate in favor of the Pledgee any security interest, lien or right of
setoff that you may have. You acknowledge that you have not received notice of
any other security interest in the Account or the Assets. In the event any such
notice is received, you will promptly notify the Pledgee. The Pledgor hereby
represents that the Assets are free and clear of any lien or encumbrances other
than the lien in favor of the Pledgor resulting from the security interest
granted to the Pledgee and agrees that, with the exception of the security
interest granted to the Pledgee, no lien or encumbrance will be placed by it on
the Assets without the express written consent of the Pledgee.
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns and you, and the
rights and obligations of the parties hereto shall be governed by, and construed
and interpreted in accordance with, and the law of your jurisdiction for the
purposes of Section 8-110 of the Uniform Commercial Code in effect in the State
of New York (the "UCC" shall be the law of the State of New York).
You will treat all property at any time held by you in the Account as
financial assets within the meaning of the UCC. You acknowledge that this
Agreement constitutes written notification to you, pursuant to the UCC and any
applicable federal regulations for the Federal Reserve Book Entry System, of the
Pledgee's security interest in the Assets. The Pledgor, Pledgee and you are
entering into this Agreement to provide for the Pledgee's control of the Assets
and to confirm the first priority of the Pledgee's security interest in the
Assets. The
A2-2
Pledgor and the Pledgee intend that you shall be a "securities intermediary"
with respect to the Assets on deposit from time to time in the Account for
purposes of Article 8 of the UCC.
If any term or provision of this Agreement is determined to be invalid
or unenforceable, the remainder of this Agreement shall be construed in all
respects as if the invalid or unenforceable term or provision were omitted. This
Agreement may not be altered or amended in any manner without the express
written consent of the Pledgor, the Pledgee and you. This Agreement may be
executed in any number of counterparts, all of which shall constitute one
original agreement.
This Agreement may be terminated by you upon 30 days' prior written
notice to the Pledgor and the Pledgee. Upon expiration of such 30-day period,
you shall be under no further obligation except to hold the Assets in accordance
with the terms of this Agreement, pending receipt of written instructions from
the Pledgor and the Pledgee, jointly, regarding the further disposition of the
pledged Assets.
The Pledgor acknowledges that this Agreement supplements any existing
agreements of the Pledgor with you regarding the account and, except as
expressly provided herein, is in no way intended to abridge any rights that you
might otherwise have.
A2-3
In witness whereof, the Pledgor and the Pledgee have caused this
Agreement to be executed by their duly authorized officers all as of the date
first above written.
[Pledgor]
By: __________________________________
Name:
Title:
Wilmington Trust Company, as Collateral Trustee
By: __________________________________
Name:
Title:
ACCEPTED AND AGREED:
[Broker]
By: __________________________________
Name:
Title:
A2-4
Annex 3 to
Pledge and Security Agreement
PLEDGE AMENDMENT
This Pledge Amendment, dated as of __________, ____, is delivered
pursuant to Section 4.4(a) of the Pledge and Security Agreement dated August 21,
2001 by FINOVA Capital Corporation (the "Borrower"), the [undersigned Grantor
and the other] Subsidiaries of the Borrower from time to time party thereto as
Grantors in favor of Wilmington Trust Company, as Collateral Trustee for the
Secured Parties referred to therein (the "Pledge and Security Agreement") and
the undersigned hereby agrees that this Pledge Amendment may be attached to the
Pledge and Security Agreement and that the Pledged Collateral listed on this
Pledge Amendment shall be and become part of the Collateral referred to in the
Pledge and Security Agreement and shall secure all Secured Obligations.
Capitalized terms used herein but not defined herein are used herein with the
meaning given them in the Pledge and Security Agreement.
[Grantor]
By: _________________________
Name:
Title:
Number of Shares,
Issuer Class Certificate No(s). Par Value Units or Interests
------ ----- ------------------ --------- ------------------
Issuer Description of Debt Certificate No(s). Final Maturity Principal Amount
------ ------------------- ------------------ -------------- ----------------
A3-1
ACKNOWLEDGED AND AGREED
as of the date of this Pledge Amendment
first above written.
Wilmington Trust Company, as Collateral Trustee
By:___________________
Name:
Title:
A3-2
Annex 4 to
Pledge and Security Agreement
JOINDER AGREEMENT
This JOINDER AGREEMENT, dated as of _______, ____, is delivered
pursuant to Section 6.10 of the Pledge and Security Agreement dated as of August
21, 2001, by FINOVA Capital Corporation (the "Borrower") and the Subsidiaries of
the Borrower listed on the signature pages thereof in favor of Wilmington Trust
Company, as Collateral Trustee for the Secured Parties referred to therein (the
"Pledge and Security Agreement"). Capitalized terms used herein but not defined
herein are used with the meanings given them in the Pledge and Security
Agreement.
By executing and delivering this Joinder Agreement, the undersigned,
as provided in Section 6.10 of the Pledge and Security Agreement, hereby becomes
a party to the Pledge and Security Agreement as a Grantor thereunder with the
same force and effect as if originally named as a Grantor therein and, without
limiting the generality of the foregoing, hereby grants to the Collateral
Trustee, as collateral security for the full, prompt and complete payment and
performance when due (whether at stated maturity, by acceleration or otherwise)
of the Secured Obligations, hereby collaterally assigns, conveys, mortgages,
pledges, hypothecates and transfers to the Collateral Trustee and grants to the
Collateral Trustee a Lien on and security interest in, all of its right, title
and interest in, to and under the Collateral and hereby expressly assumes all
obligations and liabilities of a Grantor thereunder.
The information set forth in Annex 1-A is hereby added to the
information set forth in Schedules 1 through 5 to the Pledge and Security
Agreement.
The undersigned hereby represents and warrants that each of the
representations and warranties contained in Section 3 of the Pledge and Security
Agreement applicable to it is true and correct on and as the date hereof as if
made on and as of such date.
IN WITNESS WHEREOF, the undersigned has caused this Joinder Agreement
to be duly executed and delivered as of the date first above written.
[Additional Grantor]
By: ___________________________
Name:
Title:
A4-1
ACKNOWLEDGED AND AGREED
as of the date of this Joinder Agreement
first above written.
Wilmington Trust Company, as Collateral Trustee
By: ___________________________
Name:
Title:
A4-2
Annex 5 to
Pledge and Security Agreement
FORM OF
COPYRIGHT SECURITY AGREEMENT
COPYRIGHT SECURITY AGREEMENT, dated as of _________ __, ____, by
FINOVA Capital Corporation (the "Borrower") and each of the other entities
listed on the signature pages hereof (each of such entities and Borrower, a
"Grantor" and, collectively, the "Grantors"), in favor of Wilmington Trust
Company, as Collateral Trustee for the Secured Parties (as defined in the Pledge
and Security Agreement referred to below) (in such capacity, the "Collateral
Trustee").
W I T N E S S E T H:
WHEREAS, the Grantors are party to a Pledge and Security Agreement,
dated as of August 21, 2001 in favor of the Collateral Trustee (the "Security
Agreement") pursuant to which the Grantors are required to execute and deliver
this Copyright Security Agreement;
NOW, THEREFORE, in consideration of the premises, each Grantor hereby
agrees with the Collateral Trustee as follows:
Section 1 Defined Terms. Unless otherwise defined herein, terms defined in the
Security Agreement and used herein have the meaning given to them in the
Security Agreement.
Section 2 Grant of Security Interest in Copyright Collateral. Each
--------------------------------------------------
Grantor, as collateral security for the full, prompt and complete payment and
performance when due (whether at stated maturity, by acceleration or otherwise)
of the Secured Obligations, hereby collaterally assigns, conveys, mortgages,
pledges, hypothecates and transfers to the Collateral Trustee for the benefit of
the Secured Parties, and grants to the Collateral Trustee for the benefit of the
Secured Parties a lien on and security interest in, all of its right, title and
interest in, to and under the following Collateral of such Grantor (the
"Copyright Collateral"):
(a) all of its Copyrights and Copyright Licenses to which it is a
party, including those referred to on Schedule I hereto;
(b) all reissues, continuations or extensions of the foregoing;
(c) all Proceeds of the foregoing, including any claim by Grantor
against third parties for past, present, future infringement or dilution of any
Copyright or Copyright licensed under any Copyright License; and
(d) all other rights or benefits relating to the foregoing.
Section 3 Security Agreement. The security interest granted pursuant
------------------
to this Copyright Security Agreement is granted in conjunction with the security
interest granted to the Collateral Trustee pursuant to the Security Agreement
and each Grantor hereby acknowledges and affirms that the rights and remedies of
the Collateral Trustee with respect to the security interest in the Copyright
Collateral made and granted hereby are more fully set forth in the Security
Agreement, the terms and provisions of which are incorporated by reference
herein as if fully set forth herein.
Section 4 After Acquired Copyright Collateral. If any Grantor shall
-----------------------------------
hereafter obtain any rights, title or interest in any item (including, without
limitation, any
A5-1
Copyright, Copyright License, reissues, continuations or extensions thereof, or
Proceeds thereof) that would have constituted Copyright Collateral had such
Grantor possessed such right, title or interest in such item as of the date of
this Copyright Security Agreement, then such item shall be deemed to be
Copyright Collateral, the provisions of this Copyright Security Agreement shall
apply thereto and such right, title or interest shall be subject to the security
interest granted hereby.
[signature page follows]
A5-2
IN WITNESS WHEREOF, each Grantor has caused this Copyright Security
Agreement to be executed and delivered by its duly authorized offer as of the
date first set forth above.
Very truly yours,
[GRANTORS]
By: _______________________
Name:
Title:
Accepted and Agreed:
Wilmington Trust Company, as Collateral Trustee
By: _____________________________
Name:
Title:
A5-3
Acknowledgement of Grantor
--------------------------
State of ______________)
) ss.
County of _____________)
On this ____ day of __________, _____ before me personally appeared
______________________, proved to me on the basis of satisfactory evidence to be
the person who executed the foregoing instrument on behalf of ________________,
who being by me duly sworn did depose and say that he is an authorized officer
of said corporation, that the said instrument was signed on behalf of said
corporation as authorized by its Board of Directors and that he acknowledged
said instrument to be the free act and deed of said corporation.
----------------------------
Notary Public
A5-4
SCHEDULE I
to
COPYRIGHT SECURITY AGREEMENT
COPYRIGHT REGISTRATIONS
-----------------------
A. REGISTERED COPYRIGHTS
Copyright Reg. No. and Date
B. COPYRIGHT APPLICATIONS
C. COPYRIGHT LICENSES
Name of Agreement, Parties and Date of Agreement
A5-5
Annex 6 to
Pledge and Security Agreement
FORM OF PATENT SECURITY AGREEMENT
PATENT SECURITY AGREEMENT, dated as of _________ __, ____, by FINOVA
Capital Corporation (the "Borrower") and each of the other entities listed on
the signature pages hereof (each of such entities and the Borrower, a "Grantor"
and, collectively, the "Grantors"), in favor of Wilmington Trust Company, as
Collateral Trustee for the Secured Parties (as defined in the Security Agreement
referred to below) (in such capacity, the "Collateral Trustee").
W i t n e s s e t h:
WHEREAS, all the Grantors are party to a Pledge and Security
Agreement, dated as of August 21, 2001, in favor of the Collateral Trustee (the
"Security Agreement") pursuant to which the Grantors are required to execute and
deliver this Patent Security Agreement;
NOW, THEREFORE, in consideration of the premises, each Grantor hereby
agrees with the Collateral Trustee as follows:
Section 1 Defined Terms. Unless otherwise defined herein, terms
-------------
defined in the Security Agreement and used herein have the meaning given to them
in the Security Agreement.
Section 2 Grant of Security Interest in Patent Collateral. Each
-----------------------------------------------
Grantor, as collateral security for the full, prompt and complete payment and
performance when due (whether at stated maturity, by acceleration or otherwise)
of the Secured Obligations hereby collaterally assigns, conveys, mortgages,
pledges, hypothecates and transfers to the Collateral Trustee for the benefit of
the Secured Parties, and grants to the Collateral Trustee for the benefit of the
Secured Parties a lien on and security interest in, all of its right, title and
interest in, to and under the following Collateral of such Grantor (the "Patent
Collateral"):
(a) all of its Patents and Patent Licenses to which it is a party,
including those referred to on Schedule I hereto;
(b) all reissues, continuations or extensions of the foregoing;
(c) all Proceeds of the foregoing, including any claim by Grantor
against third parties for past, present or future infringement or dilution of
any Patent or any Patent licensed under any Patent License; and
(d) all other rights or benefits relating to the foregoing.
Section 3 Security Agreement. The security interest granted pursuant
------------------
to this Patent Security Agreement is granted in conjunction with the security
interest granted to the Collateral Trustee pursuant to the Security Agreement
and each Grantor hereby acknowledges and affirms that the rights and remedies of
the Collateral Trustee with respect to the security interest in the Patent
Collateral made and granted hereby are more fully set forth in the Security
Agreement, the terms and provisions of which are incorporated by reference
herein as if fully set forth herein.
Section 4 After Acquired Patent Collateral. If any Grantor shall
--------------------------------
hereafter obtain any rights, title or interest in any item (including, without
limitation, any Patent, Patent License, reissues, continuations or extensions
thereof, or Proceeds thereof) that would have constituted Patent Collateral had
such Grantor possessed such right, title or interest in such
A6-1
item as of the date of this Patent Security Agreement, then such item shall be
deemed to be Patent Collateral, the provisions of this Patent Security Agreement
shall apply thereto and such right, title or interest shall be subject to the
security interest granted hereby.
[signature page follows]
A6-2
IN WITNESS WHEREOF, each Grantor has caused this Patent Security
Agreement to be executed and delivered by its duly authorized offer as of the
date first set forth above.
Very truly yours,
[GRANTORS]
By: __________________________
Name:
Title:
Accepted and Agreed:
Wilmington Trust Company, as Collateral Trustee
By: __________________________
Name:
Title:
▇▇-▇
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇
--------------------------
▇▇▇▇▇ OF ________________)
) ss.
COUNTY OF _______________)
On this ____ day of __________, _____ before me personally appeared
______________________, proved to me on the basis of satisfactory evidence to be
the person who executed the foregoing instrument on behalf of ________________,
who being by me duly sworn did depose and say that he is an authorized officer
of said corporation, that the said instrument was signed on behalf of said
corporation as authorized by its Board of Directors and that he acknowledged
said instrument to be the free act and deed of said corporation.
--------------------------
Notary Public
A6-4
SCHEDULE I
to
PATENT SECURITY AGREEMENT
PATENT REGISTRATIONS
--------------------
A. REGISTERED PATENTS
Patent Reg. No. and Date
B. PATENT APPLICATIONS
C. PATENT LICENSES
Name of Agreement, Parties, Date of Agreement
A6-5
Annex 7 to
Pledge and Security Agreement
TRADEMARK SECURITY AGREEMENT, dated as of _________ __, ____, by
FINOVA Capital Corporation (the "Borrower") and each of the other entities
listed on the signature pages hereof (each of such entities and the Borrower, a
"Grantor" and, collectively, the "Grantors"), in favor of Wilmington Trust
Company, as Collateral Trustee for the Secured Parties (as defined in the
Security Agreement referred to below) (in such capacity, the "Collateral
Trustee").
W I T N E S S E T H:
WHEREAS, all the Grantors are party to a Pledge and Security
Agreement, dated as of August 21, 2001 in favor of the Collateral Trustee (the
"Security Agreement") pursuant to which the Grantors are required to execute and
deliver this Trademark Security Agreement;
NOW, THEREFORE, in consideration of the premises, each Grantor hereby
agrees with the Collateral Trustee as follows:
Section 5 Defined Terms. Unless otherwise defined herein, terms
-------------
defined in or in the Security Agreement and used herein have the meaning given
to them in the Security Agreement.
Section 6 Grant of Security Interest in Trademark Collateral. Each
--------------------------------------------------
Grantor, as collateral security for the full, prompt and complete payment and
performance when due (whether at stated maturity, by acceleration or otherwise)
of the Secured Obligations hereby collaterally assigns, conveys, mortgages,
pledges, hypothecates and transfers to the Collateral Trustee for the benefit of
the Secured Parties, and grants to the Collateral Trustee for the benefit of the
Secured Parties a lien on and security interest in, all of its right, title and
interest in, to and under the following Collateral of such Grantor (the
"Trademark Collateral"):
(a) all of its Trademarks and Trademark Licenses to which it is a
party, including those referred to on Schedule I hereto;
(b) all reissues, continuations or extensions of the foregoing;
(c) all goodwill of the business connected with the use of, and
symbolized by, each Trademark and each Trademark License;
(d) all Proceeds of the foregoing, including any claim by Grantor
against third parties for past, present, future (i) infringement or dilution of
any Trademark or Trademark licensed under any Trademark License or (ii) injury
to the goodwill associated with any Trademark or any Trademark licensed under
any Trademark License; and
(e) all other rights or benefits relating to the foregoing.
Section 7 Security Agreement. The security interest granted pursuant
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to this Trademark Security Agreement is granted in conjunction with the security
interest granted to the Collateral Trustee pursuant to the Security Agreement
and each Grantor hereby acknowledges and affirms that the rights and remedies of
the Collateral Trustee with respect to the security interest in the Trademark
Collateral made and granted hereby are more fully set forth in the
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Security Agreement, the terms and provisions of which are incorporated by
reference herein as if fully set forth herein.
Section 8 After Acquired Trademark Collateral. If any Grantor shall
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hereafter obtain any rights, title or interest in any item (including, without
limitation, any Trademark, Trademark License, reissues, continuations or
extensions thereof, goodwill of the business connected with the use thereof and
symbolized thereby, or Proceeds thereof) that would have constituted Trademark
Collateral had such Grantor possessed such right, title or interest in such item
as of the date of this Trademark Security Agreement, then such item shall be
deemed to be Trademark Collateral, the provisions of this Trademark Security
Agreement shall apply thereto and such right, title or interest shall be subject
to the security interest granted hereby.
[signature page follows]
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IN WITNESS WHEREOF, each Grantor has caused this Trademark Security
Agreement to be executed and delivered by its duly authorized offer as of the
date first set forth above.
Very truly yours,
[GRANTORS]
By: ______________________
Name:
Title:
Accepted and Agreed:
Wilmington Trust Company, as Collateral Trustee
By: ________________________
Name:
Title:
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▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇ OF ________________)
) ss.
COUNTY OF _______________)
On this _____ day of __________, _____ before me personally appeared
______________________, proved to me on the basis of satisfactory evidence to be
the person who executed the foregoing instrument on behalf of ________________,
who being by me duly sworn did depose and say that he is an authorized officer
of said corporation, that the said instrument was signed on behalf of said
corporation as authorized by its Board of Directors and that he acknowledged
said instrument to be the free act and deed of said corporation.
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Notary Public
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SCHEDULE I
to
TRADEMARK SECURITY AGREEMENT
TRADEMARK REGISTRATIONS
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A. REGISTERED TRADEMARKS
MarkReg. No. and Date
B. TRADEMARK APPLICATIONS
C. TRADEMARK LICENSES
Name of Agreement, Parties, Date of Agreement
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