EXHIBIT 10.9
B SHARE COLLATERAL AGREEMENT
Dated June 26, 1996
From
A I M MANAGEMENT GROUP INC.
as Borrower
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to
CITIBANK, N.A.
as Administrative Agent
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T A B L E O F C O N T E N T S
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SECTION PAGE
1. Grant of Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. Security for Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
3. Borrower Remains Liable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
4. Delivery of Account Collateral . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
5. Maintaining the B Share Collateral Account . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
6. Investing of Amounts in the B Share Collateral Account . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
7. Release of Amounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
8. Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
9. Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
10. Place of Perfection; Records; Collection of Receivables . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
11. As to the Assigned Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
12. Payments Under the Assigned Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
13. Transfers and Other Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
14. Administrative Agent Appointed Attorney-in-Fact . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
15. Administrative Agent May Perform . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
16. The Administrative Agent's Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
17. Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
18. Indemnity and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
19. Amendments; Waivers; Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 3
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SECTION PAGE
20. Addresses for Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
21. Continuing Security Interest; Assignments under the Credit Agreement . . . . . . . . . . . . . . . . . . . . . . 12
22. Release and Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
23. Governing Law; Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Schedule I - Assigned Agreements
Exhibit A - Form of Consent and Agreement 4
B SHARE COLLATERAL AGREEMENT
B SHARE COLLATERAL AGREEMENT dated June __, 1996 made by A I M MANAGEMENT GROUP INC., a Delaware corporation with an office at 11 Greenway Plaza, Suite 1919, Houston, Texas 77046 (the "Borrower"), to Citibank, N.A. ("Citibank"), as administrative agent (the "Administrative Agent") for the lenders (the "Lenders") party to the Credit Agreement (as hereinafter defined).
PRELIMINARY STATEMENTS.
(1) The Lenders and the Administrative Agent have entered into a Credit Agreement dated as of June __, 1996 (said Agreement, as it may hereafter be amended or otherwise modified from time to time, being the "Credit Agreement", the terms defined therein and not otherwise defined herein being used herein as therein defined) with the Borrower.
(2) The Borrower has opened a collateral account (the "B Share Collateral Account") with A I M Money Market Fund at its office at 11 Greenway Plaza, Suite 1919, Houston, Texas 77046, Account No. 40 20 702 9182, in the name of the Borrower, pledged to the Administrative Agent and subject to the terms of this Agreement.
(3) It is a condition precedent to the making of Loans by the Lenders under the Credit Agreement that the Borrower shall have granted the assignment and security interest and made the pledge and assignment contemplated by this Agreement.
NOW, THEREFORE, in consideration of the premises and in order to induce the Lenders to make Loans under the Credit Agreement, the Borrower hereby agrees with the Administrative Agent for its benefit and the ratable benefit of the Lenders as follows:
Section 1. Grant of Security. The Borrower hereby assigns and pledges to the Administrative Agent for its benefit and the ratable benefit of the Lenders, and hereby grants to the Administrative Agent for its benefit and the ratable benefit of the Lenders a security interest in, the following (collectively, the "Collateral"):
(a) all of the Borrower's right, title and interest,
whether now owned or hereafter acquired, in and to all accounts,
contract rights, chattel paper, instruments, deposit accounts, general
intangibles and other obligations of any kind, now or hereafter
existing, constituting Deferred Load Amounts (other than Deferred Load
Amounts that, on any date of determination, have been sold pursuant to
a Securitization Program) and the proceeds of any Securitization
Program (any and all such accounts, contract rights, chattel paper,
instruments, deposit accounts, general intangibles and obligations, to
the extent not referred to in clause (b), (c) or (d) below, being the
"Receivables"); 5
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(b) all of the Borrower's right, title and interest in
its capacity as "Seller" in and to the Collection Agency Agreement
described on Schedule I hereto and all of the Borrower's right, title
and interest in and to each other agreement listed on Schedule I, as
such agreements may be amended or otherwise modified from time to time
(collectively, the "Assigned Agreements"), including, without
limitation, (i) all rights of the Borrower to receive moneys due and
to become due under or pursuant to the Assigned Agreements, (ii) all
rights of the Borrower to receive proceeds of any insurance,
indemnity, warranty or guaranty with respect to the Assigned
Agreements, (iii) claims of the Borrower for damages arising out of or
for breach of or default under the Assigned Agreements and (iv) the
right of the Borrower to compel performance and otherwise exercise all
remedies thereunder (all such Collateral being the "Agreement
Collateral");
(c) all of the following (collectively, the "Account
Collateral"):
(i) the B Share Collateral Account, all funds
held therein and all certificates and instruments, if any,
from time to time representing or evidencing the B Share
Collateral Account;
(ii) all Collateral Investments (as hereinafter
defined) from time to time and all certificates and
instruments, if any, from time to time representing or
evidencing the Collateral Investments;
(iii) all notes, certificates of deposit, deposit
accounts, checks and other instruments from time to time
hereafter delivered to or otherwise possessed by the
Administrative Agent for or on behalf of the Borrower in
substitution for or as a proceed of any or all of the then
existing Account Collateral; and
(iv) all interest, dividends, cash, instruments
and other property from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or
all of the then existing Account Collateral; and
(d) all proceeds of any and all of the foregoing
Collateral (including, without limitation, proceeds that constitute
property of the types described in clauses (a) - (c) of this Section
1) and, to the extent not otherwise included, all (i) payments under
insurance (whether or not the Administrative Agent is the loss payee
thereof), or any indemnity, warranty or guaranty, payable by reason of
loss or damage to any of the foregoing Collateral and (ii) cash.
Notwithstanding anything in this Agreement to the contrary,
"Collateral" shall not include any assets sold by the Borrower
pursuant to a Securitization Program or any 6
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rights under the Assigned Agreements with respect to assets sold by
the Borrower pursuant to a Securitization Program.
Section 2. Security for Obligations. This Agreement secures the payment of all Obligations of the Borrower now or hereafter existing under the Loan Documents, whether for principal, interest, fees, expenses or otherwise (all such Obligations being the "Secured Obligations"). Without limiting the generality of the foregoing, this Agreement secures the payment of all amounts that constitute part of the Secured Obligations and would be owed by the Borrower to the Administrative Agent or the Lenders under the Loan Documents but for the fact that they are unenforceable or not allowable due to the existence of a bankruptcy, reorganization or similar proceeding involving the Borrower.
Section 3. Borrower Remains Liable. Anything herein to the contrary notwithstanding, (a) the Borrower shall remain liable under the contracts and agreements included in the Collateral to the extent set forth therein to perform all of its duties and obligations thereunder to the same extent as if this Agreement had not been executed, (b) the exercise by the Administrative Agent of any of the rights hereunder shall not release the Borrower from any of its duties or obligations under the contracts and agreements included in the Collateral and (c) neither the Administrative Agent nor any Lender shall have any obligation or liability under the contracts and agreements included in the Collateral by reason of this Agreement, nor shall the Administrative Agent or any Lender be obligated to perform any of the obligations or duties of the Borrower thereunder or to take any action to collect or enforce any claim for payment assigned hereunder.
Section 4. Delivery of Account Collateral. All certificates or instruments representing or evidencing Account Collateral shall be delivered to and held by or on behalf of the Administrative Agent pursuant hereto and shall be in suitable form for transfer by delivery, or shall be accompanied by duly executed instruments of transfer or assignment in blank, all in form and substance satisfactory to the Administrative Agent. The Administrative Agent shall have the right, at any time in its discretion and without notice to the Borrower, to transfer to or to register in the name of the Administrative Agent or any of its nominees any or all of the Account Collateral. In addition, the Administrative Agent shall have the right at any time to exchange certificates or instruments representing or evidencing Account Collateral for certificates or instruments of smaller or larger denominations.
Section 5. Maintaining the B Share Collateral Account. So long as any Loan shall remain unpaid or any Lender shall have any Commitment under the Credit Agreement:
(a) The Borrower will maintain the B Share Collateral
Account pledged to the Administrative Agent; 7
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(b) The Borrower shall deposit into the B Share
Collateral Agreement, on each day, immediately available funds in an
amount equal to all Deferred Load Amounts received by the Borrower
that are not deposited into the Demand Deposit Account (as defined in
the Collection Agency Agreement); and
(c) It shall be a term and condition of the B Share
Collateral Account, notwithstanding any term or condition to the
contrary in any other agreement relating to the B Share Collateral
Account and except as otherwise provided by the provisions of Section
7 and Section 17, that no amount (including interest on Collateral
Investments) shall be paid or released to or for the account of, or
withdrawn by or for the account of, the Borrower or any other Person
from the B Share Collateral Account.
The B Share Collateral Account shall be subject to such applicable laws, and such applicable regulations of the Board of Governors of the Federal Reserve System and of any other appropriate banking or governmental authority, as may now or hereafter be in effect.
Section 6. Investing of Amounts in the B Share Collateral Account. If requested by the Borrower, the Administrative Agent will, subject to the provisions of Section 7 and Section 17, from time to time (a) invest amounts on deposit in the B Share Collateral Account in such Cash Equivalents in the name of the Administrative Agent as the Borrower may select and (b) invest interest paid on the Cash Equivalents referred to in clause (a) above, and reinvest other proceeds of any such Cash Equivalents that may mature or be sold, in each case in such Cash Equivalents in the name of the Administrative Agent as the Borrower may select (the Cash Equivalents referred to in clauses (a) and (b) above being collectively "Collateral Investments"). Interest and proceeds that are not invested or reinvested in Collateral Investments as provided above shall be deposited and held in the B Share Collateral Account.
Section 7. Release of Amounts. So lo ...
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