UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_______________
FORM 10-Q
[ X ] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the Quarterly Period Ended March 31, 2000
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the Transition Period From ___ to ___
____________________
Commission File Number 0-22935
PEGASUS SOLUTIONS, INC.
(Exact Name of Registrant as specified in its charter)
Delaware 75-2605174
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
3811 Turtle Creek Boulevard, Suite 1100, Dallas, Texas 75219
(Address of principal executive office)
(Zip Code)
Registrant's telephone number, including area code: (214) 528-5656
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act
of 1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to
such filing requirements for the past 90 days.
Yes [ X ] No [ ]
The number of shares of the registrant's common stock outstanding as of May
9, 2000 was 24,240,085.
<PAGE>
PEGASUS SOLUTIONS, INC.
FORM 10-Q
For the Quarter Ended March 31, 2000
INDEX
Part I. Financial Information
Item 1. Financial Statements (unaudited) Page
a) Consolidated Balance Sheets
as of March 31, 2000 and December 31, 1999 3
b) Consolidated Statements of Operations for the
Three Months Ended March 31, 2000 and 1999 4
c) Consolidated Statements of Cash Flows for the
Three Months Ended March 31, 2000 and 1999 5
d) Notes to Consolidated Financial Statements 6
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations 9
Part II. Other Information
Item 2. Changes in Securities and Use of Proceeds 15
Item 6. Exhibits and Reports on Form 8-K 15
Signatures 16
<PAGE>
Part I - Financial Information
Item 1. Financial Statements
<TABLE>
PEGASUS SOLUTIONS, INC.
CONSOLIDATED BALANCE SHEETS
(UNAUDITED)
<CAPTION>
March 31, 2000 December 31, 1999
------------ ------------
<S> <C> <C>
ASSETS
Cash and cash equivalents $ 134,959,771 $ 104,616,147
Restricted cash 3,559,420 2,928,680
Short-term investments 7,495,900 35,282,524
Accounts receivable, net 7,145,026 4,854,185
Other current assets 3,608,600 2,585,247
------------ ------------
Total current assets 156,768,717 150,266,783
Capitalized software, net 1,354,628 1,287,422
Property and equipment, net 4,300,323 3,568,212
Goodwill, net 2,805,900 2,890,077
Other noncurrent assets 5,266,617 5,527,274
------------ ------------
Total assets $ 170,496,185 $ 163,539,768
============ ============
LIABILITIES AND STOCKHOLDERS' EQUITY
Accounts payable and accrued liabilities $ 7,400,101 $ 6,162,314
Unearned income 1,767,544 62,640
Customer deposits 414,463 383,966
Current portion of capital lease
obligations - 52,564
------------ ------------
Total current liabilities 9,582,108 6,661,484
Other noncurrent liabilities 606,858 106,788
Stockholders' equity:
Preferred stock, $.01 par value;
2,000,000 shares authorized; zero
shares issued and outstanding, - -
Common stock, $.01 par value;
50,000,000 shares authorized;
20,557,285 and 20,515,050
shares issued, respectively 205,573 205,151
Additional paid-in capital 157,383,441 156,978,043
Unearned compensation (350,957) (442,106)
Accumulated comprehensive loss (6,148) (24,905)
Retained earnings 3,101,648 81,651
Less treasury stock (174,726
shares, at cost) (26,338) (26,338)
------------ ------------
Total stockholders' equity 160,307,219 156,771,496
------------ ------------
Total liabilities
and stockholders' equity $ 170,496,185 $ 163,539,768
============ ============
See accompanying notes to consolidated financial statements
</TABLE>
<PAGE>
<TABLE>
PEGASUS SOLUTIONS, INC.
CONSOLIDATED STATEMENTS OF OPERATIONS
(UNAUDITED)
Three Months Ended
March 31,
-------------------------
2000 1999
----------- ----------
<S> <C> <C>
Net revenues $ 10,660,714 $ 8,372,496
Cost of services 3,431,080 2,563,425
Research and development 602,398 611,443
General and administrative expenses 1,905,294 1,332,958
Marketing and promotion expenses 1,594,312 1,263,819
Depreciation and amortization 604,569 679,272
----------- ----------
Operating income 2,523,061 1,921,579
Other income (expense):
Interest income 1,594,363 528,709
Interest expense (6,130) (18,227)
----------- ----------
Income before income taxes 4,111,294 2,432,061
Income taxes 1,090,086 930,750
----------- ----------
Net income $ 3,021,208 $ 1,501,311
=========== ==========
Other comprehensive income - change in
unrealized gain 18,757 -
----------- ----------
Comprehensive income $ 3,039,965 $ 1,501,311
=========== ==========
Net income per share:
Basic $ 0.15 $ 0.09
=========== ==========
Diluted $ 0.14 $ 0.09
=========== ==========
Weighted average shares outstanding:
Basic 20,356,367 15,862,176
=========== ==========
Diluted 21,048,068 17,304,075
=========== ==========
See accompanying notes to consolidated financial statements
</TABLE>
<PAGE>
<TABLE>
PEGASUS SOLUTIONS, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
(UNAUDITED)
Three Months Ended
March 31,
--------------------------
2000 1999
----------- ----------
<S> <C> <C>
Cash flows from operating activities:
Net income $ 3,021,208 $ 1,501,311
Adjustments to reconcile net income to net cash
from operating activities:
Windfall tax benefit from employee exercise of
non-qualified stock options 281,929 843,753
Depreciation and amortization 604,569 679,272
Recognition of stock option compensation 89,166 80,752
Amortization of premiums on short-term investments 20,672 8,271
Changes in assets and liabilities:
Restricted cash (630,739) 117,439
Accounts receivable (1,357,124) (1,566,949)
Other current and noncurrent assets (1,674,807) 41,596
Accounts payable and accrued liabilities 1,642,034 (17,573)
Unearned income 1,673,637 1,000,375
Other noncurrent liabilities 125,108 (8,898)
----------- ----------
Net cash provided by operating activities 3,795,653 2,679,349
----------- ----------
Cash flows from investing activities:
Purchase of software, property and equipment (1,319,709) (917,476)
Purchase of marketable securities - (3,567,675)
Proceeds from maturity of marketable securities 27,794,372 11,404,912
Investment in minority interest - (50,110)
----------- ----------
Net cash provided by investing activities 26,474,663 6,869,651
----------- ----------
Cash flows from financing activities:
Net proceeds from issuance of stock 125,872 512,342
Repayment of capital leases (52,564) (262,622)
----------- ----------
Net cash provided by financing activities 73,308 249,720
----------- ----------
Net increase in cash and cash equivalents 30,343,624 9,798,720
Cash and cash equivalents, beginning of period 104,616,147 25,002,185
----------- ----------
Cash and cash equivalents, end of period $134,959,771 $34,800,905
=========== ==========
Supplemental disclosure of cash flow information:
Interest paid $ 3,204 $ 15,390
=========== ==========
Income taxes paid $ - $ -
=========== ==========
See accompanying notes to consolidated financial statements
</TABLE>
<PAGE>
Notes to Consolidated Financial Statements
(Unaudited)
1. BASIS OF PRESENTATION
Pegasus is a leading provider of transaction processing and electronic
commerce services to the hotel industry worldwide. Pegasus is organized
into three businesses: Pegasus Electronic Distribution, Pegasus
Commission Processing, and Pegasus Business Intelligence. The
consolidated financial statements include the accounts of Pegasus
Solutions, Inc. (Note 5) and its wholly owned subsidiaries. All
significant intercompany balances have been eliminated in consolidation.
In the opinion of management, the unaudited consolidated financial
statements presented herein reflect all adjustments necessary to fairly
state the financial position, operating results, and cash flows for the
periods presented. Such adjustments are of a normally recurring nature.
The results for interim periods are not necessarily indicative of
results expected for the entire fiscal year. The accompanying unaudited
consolidated financial statements and the notes thereto should be read
in conjunction with the consolidated financial statements and notes
thereto contained in our annual report for the year ended December 31,
1999 on Form 10-K. Pegasus management believes that the disclosures are
sufficient for interim financial reporting purposes.
2. EARNINGS PER SHARE
Basic net income per share for the three months ended March 31, 2000 and
1999 has been computed in accordance with Statement of Financial
Accounting Standards No. 128, "Earnings per Share" ("FAS 128") using the
weighted average number of common shares outstanding.
Diluted net income per share for the three months ended March 31, 2000
and 1999 gives effect to all dilutive potential common shares that were
outstanding during the respective periods. Outstanding options and
warrants with strike prices below the average fair market value of
Pegasus common stock for the three months ended March 31, 2000 and 1999
were included in the diluted earnings per share ("EPS") calculations for
the respective periods.
The following table sets forth the options excluded from the diluted EPS
calculations for the three months ended March 31:
2000 1999
---- ----
Options excluded 99,000 1,500
Strike price $25.25 - $29.02 $27.25
The options were excluded because they were antidilutive. The options
excluded in 2000 expire from December 2006 to September 2009. The
options excluded in 1999 expire in December 2006.
<PAGE>
<TABLE>
The following table sets forth the basic and diluted EPS computation for
the three months ended March 31, 2000 and 1999:
Three Months Ended
March 31,
-------------------------
2000 1999
-------------------------
<S> <C> <C>
Net income $3,021,208 $1,501,311
=========================
Basic:
Weighted average number of
shares outstanding 20,356,367 15,862,176
-------------------------
Net income per share $ 0.15 $ 0.09
=========================
Diluted:
Weighted average number of
shares outstanding 20,356,367 15,862,176
Additional weighted average
shares from assumed exercise
of dilutive stock options and
warrants, net of shares to be
repurchased with exercise
proceeds 691,701 1,441,899
-------------------------
Weighted average number of 21,048,068 17,304,075
shares outstanding used in the
diluted net income per share
calculation
-------------------------
Net income per share $ 0.14 $ 0.09
=========================
3. SEGMENT INFORMATION
Based on the criteria set forth under Statement of Financial Accounting
Standards No. 131, "Disclosures about Segments of an Enterprise and
Related Information," Pegasus is organized into three reportable
segments:
* Pegasus Electronic Distribution - provides services that enable
travel agents and individual travelers to electronically access hotel
room inventory information and conduct reservation transactions;
* Pegasus Commission Processing - provides commission payment
processing services to the hotel industry and travel agencies; and
* Pegasus Business Intelligence - provides database marketing and
consulting services and is being expanded to provide data mining and
reporting services for benchmark analysis and strategic planning for
the hotel industry.
<PAGE>
Pegasus is organized primarily on the basis of services provided.
Segment data includes a charge allocating all corporate costs to the
operating segments. Management evaluates performance of its segments
based on pretax income.
</TABLE>
<TABLE>
The following table presents information about reported segments for the
three months ended March 31:
Electronic Commission Business Reconciling
Distribution Processing Intelligence Items Total
---------- ---------- --------- --------- ----------
<S> <C> <C> <C> <C> <C>
2000
----
Net revenues $ 5,238,694 $ 5,069,062 $ 352,958 $ --- $10,660,714
Income (loss)
before taxes 2,089,747 1,942,880 (1,412,100) 1,490,767 4,111,294
1999
----
Net revenues 3,964,052 3,985,189 423,255 --- 8,372,496
Income (loss)
before taxes 1,162,337 1,699,419 (925,992) 496,297 2,432,061
</TABLE>
Reconciling items represent interest income earned on short-term
investment of operating cash balances and of a portion of proceeds from
our initial and secondary public offerings of common stock.
4. RECENTLY ISSUED ACCOUNTING PRONOUNCEMENTS
In June 1998, the Financial Accounting Standards Board issued Statement
of Financial Accounting Standards No. 133, "Accounting for Derivative
Instruments and Hedging Activities" (FAS 133). FAS 133 requires that all
derivative instruments be recorded on the balance sheet at fair value.
Changes in the fair value of derivative instruments are recorded each
period in current earnings or other comprehensive income, depending on
whether the derivative is designated as part of a hedge transaction. FAS
133, as amended by Statement of Financial Accounting Standards No. 137,
"Accounting for Derivative Instruments and Hedging Activities - Deferral
of Effective Date of FAS 133," is effective for our first quarter
financial statements in fiscal 2001. Pegasus is not currently involved
in derivative instruments or hedging activities, and therefore, will
measure the impact of this statement as it becomes necessary.
On December 3, 1999, the Securities and Exchange Commission released
Staff Accounting Bulletin No. 101 ("SAB 101"), "Revenue Recognition in
Financial Statements," which summarizes some of the Staff's views in
applying generally accepted accounting principles to revenue recognition
in financial statements. The Staff provided this guidance due, in part,
to the large number of revenue recognition issues that registrants
encounter. Pegasus is applying SAB 101 on a prospective basis beginning
in fiscal year 2000.
<PAGE>
5. SUBSEQUENT EVENTS
On April 3, 2000, Pegasus completed the acquisition of REZ, Inc.,
formerly known as REZsolutions, Inc. REZ will operate as a wholly owned
subsidiary of Pegasus. REZ stockholders received the following merger
consideration on a pro rata basis:
1) An aggregate 3.99 million shares of Pegasus common stock,
approximately 338,000 shares of which were placed in an
indemnification escrow account and approximately 123,000 shares of
which were placed in an escrow account pending the determination
of post-closing adjustments. The aggregate 3.99 million shares
constitute 16.4% of the total Pegasus common shares outstanding at
March 31, 2000. No fractional shares will be issued. REZ
stockholders will receive a cash payment in lieu of any fractional
shares.
2) Approximately $89 million in cash, $5.5 million of which is in an
indemnification escrow account.
3) $20 million note payable to Utell International Group, Ltd., in
lieu of cash consideration otherwise receivable by Utell. Utell was
the majority REZ stockholder.
The acquisition will be recorded under the purchase method of
accounting. Accordingly, REZ's results of operations subsequent to the
acquisition date will be included in the Company's consolidated
financial statements for the three months ended June 30, 2000.
On May 2, 2000, the stockholders of Pegasus Systems, Inc. approved
changing the Company's name to Pegasus Solutions, Inc. With the
acquisition of REZ on April 3, 2000, the new name is more descriptive of
the combined entity and our services. Pegasus' common stock is still
traded on the Nasdaq National Market under the symbol PEGS.
Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations
FORWARD-LOOKING STATEMENTS
This Form 10-Q, including the following discussion, contains forward-looking
statements that involve risks and uncertainties. Actual results and the
timing of events could differ materially from those discussed in the
forward-looking statements as a result of certain factors. These factors
include those set forth under the heading "Risk Factors" in our filings with
the Securities and Exchange Commission, including our Form 10-K for the year
ended December 31, 1999 and the Form S-4 (registration no. 333-92683) that
was declared effective on March 31, 2000.
OVERVIEW
Pegasus is a leading provider of transaction processing and electronic
commerce services to the hotel industry worldwide. Pegasus is organized into
three businesses: Pegasus Electronic Distribution, Pegasus Commission
Processing and Pegasus Business Intelligence.
Pegasus Electronic Distribution. Pegasus Electronic Distribution includes
our GDS distribution service and Internet-based distribution services. These
services improve the efficiency and effectiveness of the hotel reservation
process by enabling travel agents and individual travelers to electronically
access hotel room inventory information and conduct reservation transactions.
<PAGE>
Our GDS distribution service provides an electronic interface between a
hotel's central reservation system and the global distribution systems that
travel agents use to book hotel and airline reservations. Pegasus derives
revenues from this service by charging hotel participants a fee based on the
number of reservations made, less the number cancelled ("net reservations"),
and a fee for "status messages" processed through the GDS distribution
service. Status messages are electronic messages sent by hotels to global
distribution systems to update room rates, features and availability
information on global distribution system databases. As a hotel's
cumulative volume of net reservations increases during the course of the
calendar year, its fee per transaction decreases after predetermined
transaction volume hurdles have been met. As a result, for higher volume
customers, unit transaction fees are higher at the beginning of the year,
when cumulative transactions are lower. Pegasus recognizes revenues based
on the fee per transaction that a customer is expected to pay during the
entire year. Pegasus' interim balance sheets reflect a liability for the
difference between the fee per transaction that Pegasus actually bills a
customer during the period and the average fee per transaction that a
customer is expected to pay for the entire year. The liability created
during the early periods of the year is eliminated by the end of each year
as the fee per transaction that Pegasus actually bills a customer falls
below the average fee per transaction for the entire year. Pegasus offers
volume-based discounting for GDS distribution fees. The recent
consolidation in the hotel industry has resulted in a lower average fee per
transaction for the GDS distribution service. Despite increases in the
number of transactions, revenues generated from the GDS distribution service
have remained consistent with prior periods. Pegasus expects this trend to
continue.
Additionally, Pegasus generally charges new participants in the GDS
distribution service a one-time set-up fee for work performed to establish
the connection between a hotel's central reservation system and the Pegasus
electronic distribution technology. In 1999, revenue for these one-time
set-up fees was recognized ratably over the set-up period, which generally
ranges from two to four months. In 2000, revenue for these one-time set-up
fees is recognized over the contract term in accordance with SAB 101.
Pegasus also charges some global distribution systems a fee based on either
the number of net reservations or the number of hotels connected to the
global distribution system to compensate for the management and
consolidation of multiple interfaces.
Our Internet-based distribution services provide online hotel reservation
capabilities to travelers via our TravelWeb.com website (www.travelweb.com)
and our private-label reservation service. To participate in the Internet-
based distribution services, hotels pay Pegasus subscription fees based on
the number of the hotel company's properties in Pegasus' online distribution
database. For reservations that originate on the TravelWeb.com website,
Pegasus charges either a transaction fee based on the number of net
reservations made at participating properties or a commission based on the
value of the guest stay. For reservations that originate on websites using
the private-label reservation service, Pegasus charges transaction fees
based on the number of net reservations made at participating properties.
Private-label reservation customers also pay initial development fees and
either monthly subscription or maintenance fees. Initial development fees
are for establishing an electronic communication link between the hotel's
central reservation system and third-party websites. Maintenance fees are
for the management of the communication link and the online distribution
database.
<PAGE>
Pegasus Commission Processing. Pegasus Commission Processing is the global
leader in hotel commission payment processing. Pegasus Commission Processing
improves the efficiency and effectiveness of the commission payment process
for participating hotels and travel agencies by consolidating payments,
paying in local currency and providing comprehensive transaction reports.
Pegasus Commission Processing derives revenues by charging a participating
travel agency a fee based on a percentage of the commissions paid by hotels
and hotel chains that are processed by Pegasus on behalf of that agency.
Pegasus also generally charges a participating hotel a fee based on the
number of commissionable transactions arising from that hotel that are
processed by Pegasus. Revenues from travel agency fees can vary
substantially from period to period based on the types of hotels at which
reservations are made and fluctuations in overall room rates. Pegasus
Commission Processing recognizes revenues in the month in which the hotel
stay occurs. In the following month, Pegasus collects commissions from the
hotels by the 12th business day of the month and pays commissions to travel
agencies by the 15th day of the month. If a hotel fails to deliver funds to
Pegasus, Pegasus is not obligated to deliver commission payments on behalf
of the hotel to travel agencies.
Pegasus Business Intelligence. Pegasus Business Intelligence provides
database marketing and consulting services and is being expanded to provide
data mining and reporting services that search and organize data into
meaningful information for competitive analysis and strategic planning for
the hotel industry. Pegasus Business Intelligence revenues consist of fees
charged to hotels for the development of hotel databases and for consulting
services.
Historically, Pegasus has derived a majority of its revenues from its
electronic distribution and commission processing services. Pegasus has
experienced substantial growth since its inception. However, there can be
no assurance that Pegasus will experience the same rate of revenue growth in
the future. Any significant decrease in the rate of revenue growth could
have a material adverse effect on Pegasus' operating results and financial
condition.
Pegasus has developed or is in the process of developing several new
services to capitalize on its existing technology and customer base and to
provide additional electronic hotel reservation capabilities and information
services to its existing customers and to other participants in the hotel
room distribution process. Pegasus Electronic Distribution has introduced
services that automate the processing of hotel reservations for large
meetings and conventions and for corporate travelers. Pegasus Business
Intelligence intends to introduce data mining and reporting services for
benchmark analysis and strategic planning for the hotel industry. Pegasus
has not received a material amount of revenue from these services, and there
can be no assurance that any of these services will produce a material
amount of revenue in the future.
Pegasus' future success will depend, in part, on its ability to :
* Develop leading technologies
* Enhance existing services
* Develop and introduce new services that address the increasingly
sophisticated and varied needs of current and prospective customers
* Respond to technological advances and emerging industry standards on
a timely and cost-effective basis.
<PAGE>
RECENT DEVELOPMENTS
On April 3, 2000, Pegasus completed the acquisition of REZ, Inc., formerly
known as REZsolutions, Inc. REZ will operate as a wholly owned subsidiary
of Pegasus. REZ stockholders received the following merger consideration on
a pro rata basis:
1) An aggregate 3.99 million shares of Pegasus common stock,
approximately 338,000 shares of which were placed in an indemnification
escrow account and approximately 123,000 shares of which were placed in
an escrow account pending the determination of post-closing
adjustments. The aggregate 3.99 million shares constitute 16.4% of the
total Pegasus common shares outstanding at March 31, 2000. No
fractional shares will be issued. REZ stockholders will receive a cash
payment in lieu of any fractional shares.
2) Approximately $89 million in cash, $5.5 million of which is in an
indemnification escrow account.
3) $20 million note payable to Utell International Group, Ltd., in lieu
of cash consideration otherwise receivable by Utell. Utell was the
majority REZ stockholder.
The acquisition will be recorded under the purchase method of accounting.
Accordingly, REZ's results of operations subsequent to the acquisition date
will be included in the Company's consolidated financial statements for the
three months ended June 30, 2000.
On May 2, 2000, the stockholders of Pegasus Systems, Inc. approved changing
the Company's name to Pegasus Solutions, Inc. With the acquisition of REZ
on April 3, 2000, the new name is more descriptive of the combined entity
and our services.
THREE MONTHS ENDED MARCH 31, 2000 AND 1999
Net revenues. Net revenues for the three months ended March 31, 2000
increased to $10.7 million from $8.4 million for the three months ended
March 31, 1999, an increase of 27.3%. This increase in revenues was
primarily driven by higher transaction levels for Pegasus Electronic
Distribution and Pegasus Commission Processing.
Pegasus Electronic Distribution revenues increased 32.2% for the three
months ended March 31, 2000 as compared to the same period in 1999. This
increase resulted primarily from a 18.6% increase in the number of hotel
reservations made through our GDS and Internet-based distribution services.
Although GDS revenue per transaction decreased for the three months ended
March 31, 2000 compared to the same period in 1999, total transaction
revenue per transaction increased 12.6% due to an increase in the number of
Internet-based transactions, which generate more revenue per transaction.
A $188,000 increase in non-transaction related revenue also contributed to
the increase in total electronic distribution revenue. Non-transaction
related revenue includes implementation fees, license fees, subscription
fees and advertising revenue.
<PAGE>
Pegasus Commission Processing revenues increased 27.2% for the three months
ended March 31, 2000 compared to the same period in 1999 as a result of a
39.3% increase in the number of hotel commission transactions processed. The
increase in the number of transactions was due in part to an increase in the
number of hotel properties and travel agencies participating in Pegasus
Commission Processing. The value of commissions paid by Pegasus increased
39.2% for the three months ended March 31, 2000 compared to the same period
in 1999 because of an increase in the number of hotel commission
transactions processed combined with an increase in the average value of
commissions processed. Net revenues arising from the increase in commissions
paid was somewhat offset by a reduction in the average fee received from
participating travel agencies for consolidating and remitting hotel
commission payments. The decrease in travel agency fees is due to
consolidation within the travel agency industry. Pegasus expects this trend
to continue.
Pegasus Business Intelligence revenues decreased $70,000, or 16.6%, to
$353,000 for the three months ended March 31, 2000 compared to $423,000 for
the three months ended March 31,1999. Pegasus Business Intelligence
revenues consisted of fees charged to hotels for the development and
maintenance of hotel databases and for consulting services.
Pegasus Business Intelligence had net pretax losses of approximately $1.4
million and $925,000 for the three months ended March 31, 2000 and 1999,
respectively. Pegasus expects this segment to continue to have losses in
the foreseeable future. However, Pegasus expects the losses to decline as
this segment develops new products, builds its customer base and increases
revenues.
Cost of services. Cost of services increased by $868,000, or 33.9%, to $3.4
million for the three months ended March 31, 2000 from $2.6 million for the
three months ended March 31, 1999. Cost of services increased due to an
increase in the number of technology personnel as well as higher technology
salaries for the three months ended March 31, 2000 compared to the same
period in 1999.
Research and development. Research and development expenses decreased
slightly to $602,000 for the three months ended March 31, 2000 from $611,000
for the same period in 1999. An increase in headcount and salaries was
offset by $80,000 of capitalized software costs during the three months
ended March 31, 2000 and a $39,000 decrease in commission processing
consulting costs compared to the three months ended March 31, 1999.
General and administrative expenses. General and administrative expenses
increased $572,000, or 42.9%, to $1.9 million for the three months ended
March 31, 2000 from $1.3 million for the same period in 1999. This increase
was primarily due to an increase in personnel expenses and office costs
including rent, telephone, travel and supplies associated with increased
headcount. Personnel and office costs increased approximately $144,000 for
the three months ended March 31, 2000 compared to the same period in 1999.
As a result of a third-party review of executive compensation conducted at
the end of 1999, Pegasus now has a supplemental employee retirement plan for
four executives and a revised fee structure for its board of directors. The
funding for this plan, higher director compensation, and consulting fees
related to this review and the creation of the plan also contributed
$134,000, $35,000 and $47,000, respectively, to the increase in general and
administrative expenses. In addition, annual report expenses increased
$83,000 for the three months ended March 31, 2000 as compared to the same
period in 1999 because of a significant increase in the number of
shareholders.
<PAGE>
Marketing and promotion expenses. Marketing and promotion expenses increased
$330,000, or 26.2%, to $1.6 million for the three months ended March 31,
2000 from $1.3 million for the same period in 1999. Marketing and promotion
expenses increased due to a 10.7% increase in the number of marketing and
sales personnel including an executive vice president and senior vice
president. In contemplation of the REZ acquisition, we hired an executive
vice president and incurred salary, benefits, recruiting and relocation
costs.
Depreciation and amortization. Depreciation and amortization expenses
decreased $75,000, or 11.0%, to $605,000 for the three months ended March
31, 2000 from $679,000 for the same period in 1999. Depreciation decreased
$48,000 for the three months ended March 31, 2000 compared to the same
period in 1999 because our old switch platform, the technology on which our
electronic distribution services are based, was fully depreciated and
replaced with less expensive equipment during 1999. This decrease was
partially offset by additions of property and equipment. Amortization
expense decreased $26,000 for the three months ended March 31, 2000 as
compared to the same period in 1999 because of an adjustment to the tax
basis of goodwill related to the 1998 acquisition of Driving Revenue L.L.C.
Interest income. Interest income increased $1.1 million to $1.6 for the
three months ended March 31, 2000 from $529,000 for the same period in 1999.
Interest income increased as Pegasus had additional cash available for
short-term investment as a result of the secondary public offering of common
stock in May 1999. In addition, there was an increase in the prevailing
interest rate level for short-term investments during the three months ended
March 31, 2000 compared to the same period in 1999. This increase was
partially offset by a shift in the investment portfolio to include tax-
exempt securities with lower pre-tax yields.
Interest expense. Interest expense decreased $12,000 to $6,000 for the three
months ended March 31, 2000 from $18,000 for the same period in 1999. The
expense reflects payments made under capital equipment leases.
Income taxes. Income taxes for the three months ended March 31, 2000 and
1999 reflect federal, state and foreign income taxes payable. The effective
tax rate of approximately 26.5% for the three months ended March 31, 2000
decreased from the effective tax rate of approximately 38.3% for the three
months ended March 31, 1999 because of tax-exempt interest income.
LIQUIDITY AND CAPITAL RESOURCES
Pegasus' principal sources of liquidity at March 31, 2000 included cash and
cash equivalents of $135.0 million, short-term investments of $7.5 million
and restricted cash of $3.6 million. Pegasus' principal sources of
liquidity at December 31, 1999 included cash and cash equivalents of $104.6
million, short-term investments of $35.3 million and restricted cash of $2.9
million.
<PAGE>
Restricted cash represents funds for travel agency commission checks that
were never submitted to the bank by travel agencies for payment within one
year of their original issuance. After one year, the bank places a stop on
the outstanding travel agency commission checks and returns the funds to
Pegasus. Pegasus records, in an accrued liability account, an amount equal
to the restricted cash recorded upon receipt of funds from the bank.
Reasons for the checks not clearing include travel agencies going out of
business, change in address or the checks being lost. The returned funds
are repaid to the original travel agency if they can be located, or if not,
then to their state of residence as required by the unclaimed property laws
of their state.
Working capital increased to $147.2 million at March 31, 2000 from $143.6
million at December 31, 1999. Net cash provided by operating activities was
$3.8 million for the three months ended March 31, 2000 compared to $2.7
million for the same period in 1999 due to our improved operating
performance.
Capital expenditures consisted of purchases of software, furniture and
computer equipment as well as internally developed software costs and
amounted to $1.3 million for the three months ended March 31, 2000 compared
to $917,000 for the same period in 1999. Pegasus has financed its cash
requirements for investments primarily through cash generated from
operations and the sale of capital stock. Pegasus estimates that its
capital expenditures during 2000 will approximate $3.0 million and primarily
relate to adding capacity to existing systems.
Proceeds from the exercise of stock options were $126,000 for the three
months ended March 31, 2000 compared to $512,000 for the same period in
1999.
Pegasus completed secondary public offerings of its common stock in February
1998, raising net proceeds to Pegasus of $4.2 million, and in May 1999,
raising net proceeds to Pegasus of $84.4 million. A portion of the proceeds
was used at the time of each offering to repay certain lease obligations,
for working capital and other general corporate purposes, with the remaining
proceeds placed in short-term marketable securities. On April 3, 2000,
Pegasus completed the acquisition of REZ, Inc. utilizing approximately $89
million of the net proceeds from its initial and secondary public offerings.
Other consideration included an aggregate of 3.99 million shares of Pegasus
common stock and a $20 million note payable to Utell, the majority REZ
stockholder.
In conjunction with the REZ acquisition, Pegasus entered into a credit
agreement with Chase Bank of Texas, Compass Bank and Wells Fargo Bank
(Texas) on April 17, 2000. Under the terms of the credit agreement, Pegasus
has a $10 million revolving credit facility with each lender, or an
aggregate of $30 million credit facility. The credit agreement has a two-
year term, and the current interest rate is LIBOR plus 2%.
Our future liquidity and capital requirements will depend on numerous
factors, including:
* Our profitability
* Operational cash requirements
* Competitive pressures
* Development of new services and applications
* Acquisition of complimentary businesses or technologies
* Response to unanticipated cash requirements
<PAGE>
Pegasus believes that its liquidity and cash flow from operations after the
closing of the REZ acquisition, together with funds available from current
and future debt financing, will be sufficient to meet its foreseeable
operating and capital requirements through at least the end of 2000.
Pegasus may consider other financing alternatives to fund its requirements,
including possible public or private debt or equity offerings. However,
there can be no assurance that any financing alternatives sought by Pegasus
will be available or will be on terms that are attractive to Pegasus.
Further, any debt financing may involve restrictive covenants, and any
equity financing may be dilutive to stockholders.
Part II - Other Information
Item 2. Changes in Securities and Use of Proceeds - The Securities
and Exchange Commission on August 6, 1997 declared effective the
Registration Statement on Form S-1 (File No. 333-28595) relating to the
initial public offering (IPO) of the Company's Common Stock. The
Company raised proceeds, net of offering expenses, of $40.5 million
from the IPO. Approximately, $5.2 million of these proceeds were used
to repay notes payable to stockholders and repay certain lease
obligations. $400,000 was used to acquire software assets of a third-
party company. $1.5 million was used to acquire minority interests in
a database management consulting company and a company that provides
software services to the hospitality industry. The Company also paid
$6.0 million to acquire a hotel database marketing and consulting
company. On April 3, 2000, Pegasus completed the acquisition of REZ,
Inc. utilizing approximately $89 million of cash, which constituted all
of the remaining net proceeds from its initial public offering and a
portion of the net proceeds from its secondary public offerings.
Other consideration included an aggregate of 3.99 million shares of
Pegasus common stock and a $20 million note payable to Utell, the
majority REZ stockholder.
<PAGE>
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits
Exhibit 3.1 - Fourth Amended and Restated Certificate of
Incorporation
Exhibit 10.14 - Credit Agreement with Chase Bank of Texas, Compass
Bank and Wells Fargo Bank (Texas)
Exhibit 10.15 - Security Agreement with Chase Bank of Texas,
National Association
Exhibit 27 - Financial Data Schedule
(b) Reports on Form 8-K
On April 18, 2000, Pegasus filed a current report on Form 8-K to
announce the completion of the REZ, Inc. acquisition. The financial
statements of the business acquired and pro forma financial
information are incorporated by reference to the Form S-4 declared
effective by the Commission on March 31, 2000 (registration no. 333-
92683).
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
PEGASUS SOLUTIONS, INC.
May 12, 2000 /s/ JOHN F. DAVIS, III
----------------------
John F. Davis, III,
President and Chief
Executive Officer
May 12, 2000 /s/ JEROME L. GALANT
--------------------
Jerome L. Galant
Chief Financial Officer
(principal accounting officer)
<PAGE>
EXHIBIT INDEX
Exhibit Number Description of Exhibits
-------------- -----------------------
3.1 Fourth Amended and Restated Certificate of
Incorporation
10.14 Credit Agreement with Chase Bank of Texas, Compass
Bank and Wells Fargo Bank (Texas)
10.15 Security Agreement with Chase Bank of Texas,
National Association
27 Financial Data Schedule
EXHIBIT 3.1
FOURTH AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF PEGASUS SYSTEMS, INC.
-----
This Fourth Amended and Restated Certificate of Incorporation amends
and restates the Certificate of Incorporation of Pegasus Systems, Inc., a
corporation originally incorporated in Delaware as "Pegasus Systems, Inc."
on July 10, 1995. This Fourth Amended and Restated Certificate of
Incorporation has been duly adopted pursuant to Sections 242 and 245 of the
Delaware General Corporation Law.
ARTICLE I
The name of this corporation is Pegasus Solutions, Inc. (the
"Corporation").
ARTICLE II
The address of the registered office of the Corporation in the State of
Delaware is 1013 Centre Road, New Castle County, Wilmington, Delaware 19805-
1297. The name of the registered agent of the Corporation at that address
is The Prentice-Hall Corporation Systems, Inc.
ARTICLE III
The nature of the business or purposes to be conducted or promoted by
the Corporation is to engage in any lawful business, act or activity for
which corporations may be organized under the General Corporation Law of the
State of Delaware. The private property of the stockholders shall not be
subject to the payment of corporate debts to any extent whatsoever.
ARTICLE IV
This Corporation is authorized to issue two classes of stock,
designated "Common Stock" and "Preferred Stock". The total number of shares
which this Corporation is authorized to issue is 52,000,000 shares. The
number of shares of Common Stock which this Corporation is authorized to
issue is 50,000,000 shares, par value $0.01 per share. The number of shares
of Preferred Stock which this Corporation is authorized to issue is
2,000,000 shares, par value $0.01 per share, which shall initially be
undesignated as to series.
<PAGE>
Any Preferred Stock not previously designated as to series may be
issued from time to time in one or more series pursuant to a resolution or
resolutions providing for such issue duly adopted by the Board of Directors
(authority to do so being hereby expressly vested in the Board), and such
resolution or resolutions shall also set forth the voting powers, full or
limited or none, of each such series of Preferred Stock and shall fix the
designations, preferences and relative, participating, optional or other
special rights and qualifications, limitations or restrictions of each such
series of Preferred Stock. The Board of Directors is authorized to alter
the designation, rights, preferences, privileges and restrictions granted to
or imposed upon any wholly unissued series of Preferred Stock and, within
the limits and restrictions stated in any resolution or resolutions of the
Board of Directors originally fixing the number of shares constituting any
series of Preferred Stock, to increase or decrease (but not below the number
of shares of any such series then outstanding) the number of shares of any
such series subsequent to the issue of shares of that series.
Each share of Preferred Stock issued by the Corporation, if reacquired
by the Corporation (whether by redemption, repurchase, conversion to Common
Stock or other means), shall upon such reacquisition resume the status of
authorized and unissued shares of Preferred Stock, undesignated as to series
and available for designation and issuance by the Corporation in accordance
with the immediately preceding paragraph.
The relative rights, preferences, privileges and restrictions granted
to or imposed upon the Common Stock or the holders thereof are as follows:
(a) Dividend Rights. Subject to the prior rights of holders of
all classes of stock at the time outstanding having prior rights as to
dividends, the holders of the Common Stock shall be entitled to receive,
when and as declared by the Board of Directors, out of any assets of the
Corporation legally available therefor, such dividends as may be declared
from time to time by the Board of Directors.
(b) Liquidation Rights. In the event of any voluntary or
involuntary liquidation, dissolution or winding up of the affairs of the
Corporation, after payment or provision for payment of the debts and other
liabilities of the Corporation and of any amounts to which the holders of
all classes of stock at the time outstanding having prior rights as to
liquidation are entitled, the holders of all outstanding shares of Common
Stock shall be entitled to share ratably in the remaining assets of the
Corporation.
(c) Redemption. The Common Stock is not redeemable.
(d) Voting Rights. The holder of each share of Common Stock
shall have the right to one vote, and shall be entitled to notice of any
shareholders' meeting in accordance with the Bylaws of this Corporation, and
shall be entitled to vote upon such matters and in such manner as may be
provided by law.
(e) Residual Rights. All rights accruing to the outstanding
shares of this Corporation not expressly provided for to the contrary herein
shall be vested in the Common Stock.
ARTICLE V
The Corporation is to have perpetual existence.
<PAGE>
ARTICLE VI
Elections of directors need not be by written ballot unless a
stockholder demands election by written ballot at the meeting and before
voting begins or unless the Bylaws of the Corporation shall so provide.
ARTICLE VII
In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors of the Corporation is expressly authorized
to make, alter, amend or repeal the Bylaws of the Corporation.
ARTICLE VIII
(a) To the fullest extent permitted by the General Corporation
Law of the State of Delaware as the same exists or as may hereafter be
amended, a director of the Corporation shall not be personally liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director.
(b) The Corporation may indemnify to the fullest extent permitted
by law any person made or threatened to be made a party to an action or
proceeding, whether criminal, civil, administrative or investigative, by
reason of the fact that he, his estate or legal representative is or was a
director, officer, employee or agent of the Corporation or any predecessor
of the Corporation or serves or served at any other enterprise as a
director, officer, employee or agent at the request of the Corporation or
any other predecessor to the Corporation.
(c) No amendment nor repeal of this Article VIII, nor the
adoption of any provision of this Corporation's Certificate of Incorporation
inconsistent with this Article VIII, shall eliminate or reduce the effect of
this Article VIII, in respect of any matter occurring, or any action or
proceeding accruing or arising or that, but for this Article VIII, would
accrue or arise, prior to such amendment, repeal or adoption of an
inconsistent provision.
ARTICLE IX
Meetings of stockholders may be held within or without the State of
Delaware, as the Bylaws may provide. The books of the Corporation may be
kept (subject to any provision contained in the statutes) outside of the
State of Delaware at such place or places as may be designated from time to
time by the Board of Directors or in the Bylaws of the Corporation.
ARTICLE X
Advance notice of new business and stockholder nominations for the
election of directors shall be given in the manner and to the extent
provided in the Bylaws of the Corporation.
ARTICLE XI
The business and affairs of the Corporation shall be managed by or
under the direction of the Board of Directors. The Board of Directors may
exercise all such authority and powers of the Corporation and do all such
lawful acts and things as are not by statute or this Certificate of
Incorporation directed or required to be exercised or done by the
stockholders.
<PAGE>
1. Number of Directors
The number of directors of the Corporation shall be fixed from time to
time only by action of not less than a majority of the members of the Board
of Directors then in office. The number of directors comprising the Board
of Directors of the Corporation shall not be less than two (2) or more than
twenty-five (25).
2. Classes
Subject to the rights, if any, of any series of Preferred Stock then
outstanding, the directors shall be divided into three classes, designated
Class I, Class II and Class III. The number of directors in each class
shall be the whole number contained in the quotient arrived at by dividing
the authorized number of directors by three, and if a fraction is also
contained in such quotient then if such fraction is one-third (1/3) the
extra director shall be a member of Class III and if the fraction is two-
thirds (2/3) then one of the extra directors shall be a member of Class III
and the other shall be a member of Class II. The term of office of directors
in each class shall expire as follows: Class I shall expire at the 1998
annual meeting of stockholders, Class II shall expire at the 1999 annual
meeting of stockholders, Class III shall expire at the 2000 annual meeting
of stockholders. At each such meeting of stockholders, directors shall be
elected to succeed those directors whose terms expire for a term of office
to expire at the third succeeding annual meeting of stockholders after their
election. All directors shall hold office until the annual meeting of
stockholders for the year in which their term expires and until their
successors are duly elected and qualified, or until their earlier death,
resignation, disqualification or removal.
3. Vacancies
Subject to the rights, if any, of the holders of any series of
Preferred Stock then outstanding, newly created directorships resulting from
any increase in the authorized number of directors or any vacancies in the
Board of Directors resulting from death, resignation, disqualification or
removal may be filled only by a majority vote of the directors then in
office, though less than a quorum, and directors so chosen shall hold office
for a term expiring at the annual meeting of stockholders at which the term
of office of the class to which they have been elected expires and until
such director's successor shall have been duly elected and qualified.
4. Removal
Any director or the entire Board of Directors may be removed only for
cause and only by the vote of the holders of two-thirds (2/3) of the
securities of the Corporation then entitled to vote at an election of
directors voting together as a single class.
ARTICLE XII
Any action required or permitted to be taken at any annual or special
meeting of stockholders may only be taken upon the vote of the stockholders
at an annual or special meeting duly called and may not be taken by written
consent of the stockholders. Special meetings of the stockholders, unless
otherwise prescribed by statute, may be called at any time only by the
Chairman of the Board or the Chief Executive Officer of the Corporation or
the Board of Directors.
<PAGE>
ARTICLE XIII
The Corporation reserves the right to amend, alter, change or repeal
any provision contained in this Certificate of Incorporation, in the manner
now or hereafter prescribed by statute, and all rights conferred upon
stockholders herein are granted subject to this reservation. In addition to
any affirmative vote required by applicable law or any other provision of
this Certificate of Incorporation or specified in any agreement, the
affirmative vote of the holders of not less than two-thirds (2/3) of the
voting power of all securities of the Corporation entitled to vote generally
in the election of directors shall be required to amend, add, alter, change,
repeal or adopt any provisions inconsistent with Sections 1, 2 or 3 of
Article XI, Article XII or this Article XIII of this Certificate of
Incorporation and the affirmative vote of not less than eighty percent (80%)
of the voting power of all securities of the Corporation entitled to vote
generally in the election of directors shall be required to amend, add,
alter, change, repeal or adopt any provisions inconsistent with Section 4 of
Article XI or this Article XIII with respect to Section 4 of Article XI.
IN WITNESS WHEREOF, the Corporation has caused this Fourth Amended and
Restated of Certificate to be duly executed this 2nd day of May, 2000.
By: /s/ JOHN F. DAVIS, III
-------------------------------------
John F. Davis, III
President and Chief Executive Officer
ATTEST:
/s/ RIC L. FLOYD
---------------------------
Ric L. Floyd, Secretary
<PAGE>
CERTIFICATION
I, Ric L. Floyd, duly elected Secretary of Pegasus Systems, Inc., do
hereby certify that the Fourth Amended and Restated Certificate of
Incorporation of the Corporation attached hereto and incorporated herein by
reference, which restated, integrates and further amends the provisions of
the Certificate of Incorporation of this Corporation heretofore amended, has
been duly adopted by the Corporation's Board of Directors and stockholders
in accordance with Sections 242 and 245 of the Delaware General Corporation
Law, with the meeting of the stockholders of the Corporation held on May 2,
2000.
IN WITNESS WHEREOF, said Corporation has caused this Fourth Amended and
Restated Certificate of Incorporation to be signed by its duly authorized
officers on this 2nd day of May, 2000.
Pegasus Systems, Inc.
By: /s/ RIC L. FLOYD
----------------
Ric L. Floyd
Secretary
<PAGE>
ACKNOWLEDGEMENT
STATE OF TEXAS )
)
COUNTY OF DALLAS )
On this 2nd day of May, 2000, before me, Rebecca L. Morley, the
undersigned officer, personally appeared Ric L. Floyd, personally known to
me to be the person that executed this instrument on behalf of the
Corporation and acknowledged to me that the Corporation executed it. Ric L.
Floyd further acknowledged to me, under penalty of perjury, that the facts
stated therein are true.
/s/ REBECCA L. MORLEY
-------------------------------------------
Rebecca L. Morley
Notary Public in and for the State of Texas
[SEAL]
EXHIBIT 10.14
CREDIT AGREEMENT
Dated as of
April 17, 2000
among
PEGASUS SYSTEMS, INC.,
as Borrower
The Lenders Party Hereto,
and
CHASE BANK OF TEXAS, NATIONAL ASSOCIATION,
as Administrative Agent
________________________
CHASE SECURITIES INC.,
as Lead Arranger and Book Manager
<PAGE>
TABLE OF CONTENTS
Page
----
ARTICLE I
Definitions................................................1
SECTION 1.01 Defined Terms................................1
SECTION 1.02 Terms Generally.............................15
SECTION 1.03 Accounting Terms; GAAP......................16
ARTICLE II
The Credits...............................................16
SECTION 2.01 Commitments.................................16
SECTION 2.02 Loans and Borrowings........................16
SECTION 2.03 Requests for Borrowings.....................17
SECTION 2.04 Funding of Borrowings.......................18
SECTION 2.05 Interest Elections..........................18
SECTION 2.06 Termination and Reduction of Commitments....20
SECTION 2.07 Repayment of Loans; Evidence of Debt........20
SECTION 2.08 Prepayment of Loans.........................21
SECTION 2.09 Fees........................................21
SECTION 2.10 Interest....................................22
SECTION 2.11 Taxes.......................................23
SECTION 2.12 Payments Generally; Pro Rata Treatment;
Sharing of Set-offs.........................24
SECTION 2.13 Mitigation Obligations; Replacement
of Lenders..................................25
ARTICLE III
Yield Protection and Illegality...........................26
SECTION 3.01 Increased Costs.............................26
SECTION 3.02 Alternate Rate of Interest..................27
SECTION 3.03 Illegality..................................27
SECTION 3.04 Treatment of Affected Borrowings............27
SECTION 3.05 Break Funding Payments......................28
ARTICLE IV
Security..................................................29
SECTION 4.01 Collateral..................................29
<PAGE>
ARTICLE V
Representations and Warranties............................29
SECTION 5.01 Organization; Powers........................29
SECTION 5.02 Authorization; Enforceability...............30
SECTION 5.03 Governmental Approvals; No Conflicts........30
SECTION 5.04 Financial Condition; No Material
Adverse Change..............................30
SECTION 5.05 Properties..................................31
SECTION 5.06 Litigation and Environmental Matters........31
SECTION 5.07 Compliance with Laws and Agreements.........32
SECTION 5.08 Investment and Holding Company Status.......32
SECTION 5.09 Taxes.......................................32
SECTION 5.10 ERISA.......................................32
SECTION 5.11 Disclosure..................................32
SECTION 5.12 Year 2000...................................33
SECTION 5.13 Indebtedness................................33
SECTION 5.14 Subsidiaries................................33
SECTION 5.15 Inventory...................................33
SECTION 5.16 Patents, Trademarks and Copyrights..........33
SECTION 5.17 Margin Securities...........................34
SECTION 5.18 Labor Matters...............................34
SECTION 5.19 Solvency....................................34
SECTION 5.20 Burdensome Agreements.......................34
ARTICLE VI
Conditions................................................35
SECTION 6.01 Effective Date..............................35
SECTION 6.02 Each Credit Event...........................38
ARTICLE VII
Affirmative Covenants.....................................38
SECTION 7.01 Financial Statements and Other Information..38
SECTION 7.02 Notices of Material Events..................40
SECTION 7.03 Existence; Conduct of Business..............40
SECTION 7.04 Payment of Obligations......................40
SECTION 7.05 Maintenance of Properties...................40
SECTION 7.06 Books and Records; Inspection Rights........40
SECTION 7.07 Insurance...................................41
SECTION 7.08 Compliance with Laws........................41
SECTION 7.09 Use of Proceeds.............................41
SECTION 7.10 Compliance with Agreements..................41
SECTION 7.11 Additional Subsidiaries.....................41
SECTION 7.12 Real Property...............................42
SECTION 7.13 Further Assurances..........................42
<PAGE>
ARTICLE VIII
Negative Covenants........................................42
SECTION 8.01 Indebtedness................................42
SECTION 8.02 Liens.......................................43
SECTION 8.03 Fundamental Changes.........................43
SECTION 8.04 Investments, Loans, Advances, Guarantees
and Acquisitions............................44
SECTION 8.05 Hedging Agreements..........................44
SECTION 8.06 Restricted Payments; Certain Payments of
Indebtedness................................45
SECTION 8.07 Transactions with Affiliates................45
SECTION 8.08 Restrictive Agreements......................45
SECTION 8.09 Disposition of Assets.......................46
SECTION 8.10 Sale and Leaseback..........................46
SECTION 8.11 Accounting..................................46
SECTION 8.12 Amendment of Material Documents.............47
SECTION 8.13 Preferred Equity Interests..................47
ARTICLE IX
Financial Covenants.......................................47
SECTION 9.01 Consolidated Leverage Ratio.................47
SECTION 9.02 Consolidated Fixed Charge Coverage Ratio....47
SECTION 9.03 Liquidity...................................47
ARTICLE X
Events of Default.........................................47
SECTION 10.01 Default....................................47
SECTION 10.02 Performance by the Administrative Agent....50
ARTICLE XI
The Administrative Agent..................................50
ARTICLE XII
Miscellaneous.............................................52
SECTION 12.01 Notices....................................52
SECTION 12.02 Waivers; Amendments........................53
SECTION 12.03 Expenses; Indemnity; Damage Waiver.........54
SECTION 12.04 Successors and Assigns.....................55
SECTION 12.05 Survival...................................57
SECTION 12.06 Counterparts; Effectiveness................58
SECTION 12.07 Severability...............................58
SECTION 12.08 Right of Setoff............................58
SECTION 12.09 GOVERNING LAW; VENUE; SERVICE OF PROCESS...58
SECTION 12.10 WAIVER OF JURY TRIAL.......................59
SECTION 12.11 Headings...................................59
SECTION 12.12 Confidentiality............................59
SECTION 12.13 Maximum Interest Rate......................60
SECTION 12.14 Non-Application of Chapter 346 of Texas
Finance Code...............................60
SECTION 12.15 NO ORAL AGREEMENTS.........................60
SECTION 12.16 No Fiduciary Relationship..................61
SECTION 12.17 Construction...............................61
<PAGE>
CREDIT AGREEMENT
THIS CREDIT AGREEMENT (this "Agreement") dated as of April __,
2000, among PEGASUS SYSTEMS, INC., as Borrower, the LENDERS party hereto,
and CHASE BANK OF TEXAS, NATIONAL ASSOCIATION, as Administrative Agent.
The parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.1. Defined Terms. As used in this Agreement, the
following terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Alternate Base Rate.
"Acquisition" means any transaction or series of related
transactions for the direct or indirect (a) acquisition of all or
substantially all of the property of a Person, or of any business or
division of a Person, (b) acquisition of in excess of 50% of the Equity
Interests of any Person, or otherwise causing any Person to become a
Subsidiary, or (c) a merger or consolidation or any other combination with
another Person.
"Acquisition Documents" means all documents executed or provided
in connection with any Acquisition.
"Adjusted LIBO Rate" means, with respect to any Eurodollar
Borrowing for any Interest Period, an interest rate per annum (rounded
upwards, if necessary, to the next 1/16 of 1%) equal to (a) the LIBO Rate
for such Interest Period multiplied by (b) the Statutory Reserve Rate.
"Administrative Agent" means Chase Bank of Texas, National
Association, in its capacity as administrative agent for the Lenders
hereunder.
"Administrative Questionnaire" means an Administrative
Questionnaire in a form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person, another
Person that directly, or indirectly through one or more intermediaries,
Controls or is Controlled by or is under common Control with the Person
specified.
"Alternate Base Rate" means, for any day, a rate per annum equal
to the greatest of (a) the Prime Rate in effect on such day, (b) the CD Rate
plus 1% and (c) the Federal Funds Effective Rate in effect on such day plus
0.5%. Any change in the Alternate Base Rate due to a change in the Prime
Rate, the CD Rate or the Federal Funds Effective Rate shall be effective
from and including the effective date of such change in the Prime Rate, the
CD Rate or the Federal Funds Effective Rate, respectively.
<PAGE>
"Applicable Margin" means, for any day, (a) the margin of interest
over the Base Rate or the Adjusted LIBO Rate, as the case may be, that is
applicable when the Base Rate or the Adjusted LIBO Rate, as applicable, is
determined under this Agreement, and (b) the rate per annum used for the
Commitment Fee.
(a) From the Closing Date through the date that Administrative
Agent receives the Compliance Certificate and accompanying financial
statements for the fiscal period of the Borrower ending June 30, 2000,
the Applicable Margin shall be 2.00% for Eurodollar Borrowings, 1.00%
for Base Rate Borrowings and 0.25% for the Commitment Fee.
(b) After receipt of the Compliance Certificate and accompanying
financial statements for the fiscal period of Borrower ending June 30,
2000, (i) the Applicable Margin in effect at any time (whether in the
middle of an Interest Period or otherwise) shall be based upon the
Consolidated Leverage Ratio as determined from the related Compliance
Certificate then most recently received by the Administrative Agent,
effective as of the date received by the Administrative Agent, and
(ii) the Applicable Margin is subject to adjustment (upwards or
downwards, as appropriate), as stated in the following table:
<TABLE>
Consolidated Leverage Applicable Applicable Applicable
Ratio Margin for Margin for Margin for
Base Rate Eurodollar Commitment
Borrowings Borrowings Fee
------------------------ ---------- ---------- ----------
<S> <C> <C> <C>
Greater than or equal to 1.25% 2.25% 0.50%
1.50 to 1.00
Less than 1.50 to 1.00, 1.00% 2.00% 0.25%
but greater than or equal
to 1.00 to 1.00
Less than 1.00 to 1.00, 0.75% 1.75% 0.25%
but greater than or equal
to 0.50 to 1.00
Less than 0.50 to 1.00 0.50% 1.50% 0.25%
</TABLE>
(c) If Borrower fails to timely furnish to the Administrative
Agent any financial information and related Compliance Certificate as
required by this Agreement, then the maximum Applicable Margin applies
from the date such financial information and related Compliance
Certificate are required to be delivered and remain in effect until the
Borrower furnishes them to the Administrative Agent.
"Applicable Percentage" means, with respect to any Lender, the
percentage of the total Commitments represented by such Lender's Commitment.
If the Commitments have terminated or expired, the Applicable Percentages
shall be determined based upon the Commitments most recently in effect,
giving effect to any assignments.
<PAGE>
"Arranger" means Chase Securities Inc.
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an assignee (with the consent of any party
whose consent is required by Section 12.04), and accepted by the
Administrative Agent, in the form of Exhibit "H" or any other form approved
by the Administrative Agent.
"Availability Period" means the period from and including the
Effective Date to but excluding the earlier of the Maturity Date and the
date of termination of the Commitments.
"Board" means the Board of Governors of the Federal Reserve System
of the United States of America.
"Borrower" means Pegasus Systems, Inc., a Delaware corporation.
"Borrowing" means Revolving Loans of the same Type, made,
converted or continued on the same date and, in the case of Eurodollar
Loans, as to which a single Interest Period is in effect.
"Borrowing Request" means a request by the Borrower for a
Borrowing in accordance with Section 2.03.
"Borrowing Request Form" means a certificate in substantially the
form of Exhibit "B", properly completed and signed by the Borrower
requesting a Borrowing or a conversion or continuation of a Borrowing.
"Business Day" means any day that is not a Saturday, Sunday or
other day on which commercial banks in Dallas, Texas are authorized or
required by law to remain closed; provided that, when used in connection
with a Eurodollar Loan, the term "Business Day" shall also exclude any day
on which banks are not open for dealings in dollar deposits in the London
interbank market.
"Capital Expenditures" means, for any period, (a) the additions to
property, plant and equipment and other capital expenditures of the Borrower
and its Subsidiaries that are (or would be) set forth in a consolidated
statement of cash flows of the Borrower for such period prepared in
accordance with GAAP, but excluding expenditures made in connection with the
replacement, substitution or restoration of assets to the extent financed
(i) from insurance proceeds (or other similar recoveries) paid on account of
the loss or damage to the assets being replaced or restored, but only to the
extent such proceeds or recoveries are not included in EBITDA or (ii) with
awards of compensation arising from the taking by eminent domain or
condemnation of the assets being replaced, but only to the extent such
awards are not included in EBITDA, and (b) Capital Lease Obligations
incurred by the Borrower and its Subsidiaries during such period.
"Capital Lease Obligations" of any Person means the obligations of
such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under
GAAP, and the amount of such obligations shall be the capitalized amount
thereof determined in accordance with GAAP.
"CD Rate" means the secondary market rate for three-month
certificates of deposit (adjusted for statutory reserve requirements).
<PAGE>
"Change in Control" means (a) the acquisition of ownership,
directly or indirectly, beneficially or of record, by any Person or group
(within the meaning of the Securities Exchange Act of 1934 and the rules of
the Securities and Exchange Commission thereunder as in effect on the date
hereof), of shares representing more than 30% of either the aggregate
ordinary voting power or the aggregate equity value represented by the
issued and outstanding capital stock of the Borrower; (b) occupation of a
majority of the seats (other than vacant seats) on the board of directors of
the Borrower by Persons who were neither (i) nominated by the board of
directors of the Borrower nor (ii) appointed by directors so nominated; or
(c) the acquisition of direct or indirect Control of the Borrower by any
Person or group.
"Change in Law" means (a) the adoption of any law, rule or
regulation after the date of this Agreement, (b) any change in any law, rule
or regulation or in the interpretation or application thereof by any
Governmental Authority after the date of this Agreement or (c) compliance by
any Lender (or, for purposes of Section 3.01(b), by any lending office of
such Lender or by such Lender's holding company, if any) with any request,
guideline or directive (whether or not having the force of law) of any
Governmental Authority made or issued after the date of this Agreement.
"Code" means the Internal Revenue Code of 1986, as amended from
time to time.
"Collateral" has the meaning specified in Section 4.01.
"Commitment" means, with respect to each Lender, the commitment of
such Lender to make Revolving Loans hereunder, expressed as an amount
representing the maximum aggregate amount of such Lender's Revolving Credit
Exposure hereunder, as such commitment may be (a) reduced from time to time
pursuant to Section 2.06 and (b) reduced or increased from time to time
pursuant to assignments by or to such Lender pursuant to Section 12.04. The
initial amount of each Lender's Commitment is set forth on Schedule 2.01, or
in the Assignment and Acceptance pursuant to which such Lender shall have
assumed its Commitment, as applicable. The initial aggregate amount of the
Lenders' Commitments is $30,000,000.
"Commitment Fee" means the commitment fee payable pursuant to
Section 2.09.
"Company" means REZ, Inc. (formerly known as REZsolutions, Inc.),
a Delaware corporation.
"Compliance Certificate" means a certificate of a Financial
Officer of the Borrower, in the form of Exhibit "G" hereto.
"Consolidated Fixed Charge Coverage Ratio" means, as of the last
day of any fiscal quarter of the Borrower, the ratio of (a) EBITDA less
Capital Expenditures for the 12-month period ending on such day to (b) cash
interest expense of the Borrower and its Subsidiaries for the 12-month
period ending on such day.
<PAGE>
"Consolidated Leverage Ratio" means, as of the last day of any
fiscal quarter of the Borrower, the ratio of (a) (i) Indebtedness of
Borrower and its Subsidiaries on a consolidated basis as of such last day,
minus (ii) Deposit Liabilities as of such last day, and minus (iii) the
amount of obligations in respect of Hedging Agreements as of such last day,
determined as provided in clause (m) of the definition of "Indebtedness" set
forth in this Section 1.01, to (b) EBITDA for the 12-month period ending on
such day, as adjusted for Acquisitions as hereinafter provided. Until
Borrower has delivered financial statements pursuant to Section 7.01 for
four full fiscal quarters of Borrower after the date of consummation of any
Acquisition (including the Acquisition of the Company), EBITDA for such
12-month period shall be adjusted on a pro forma basis consistent with GAAP
to include historical EBITDA of the Person acquired pursuant to such
Acquisition (calculated in accordance with the definition of EBITDA set
forth in this Section 1.01 based on audited financial statements of such
Person) as if such Acquisition had occurred on the first day of such
12-month period.
"Consolidated Liquidity" means (a) the total amount of cash and
Permitted Investments of the Borrower and the Subsidiaries that are not
subject to any Lien, minus (b) the total amount of Deposit Liabilities.
"Control" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
Person, whether through the ability to exercise voting power, by contract or
otherwise. "Controlling" and "Controlled" have meanings correlative
thereto.
"Contribution and Indemnification Agreement" means a contribution
and indemnification agreement of the Borrower and each Guarantor, in
substantially the form of Exhibit "E", as the same may be amended,
supplemented, or modified from time to time.
"Default" means any event or condition which constitutes an Event
of Default or which upon notice, lapse of time or both would, unless cured
or waived, become an Event of Default.
"Deposit Liabilities" means (a) any and all obligations of
Borrower or any Subsidiary with respect to deposits received for hotel
reservations, and (b) any and all deposits and prepaid fees paid under
agreements between the Borrower or any Subsidiary and their respective
customers.
"Disclosed Matters" means the actions, suits and proceedings and
the environmental matters disclosed in Schedule 5.06.
"dollars" or "$" refers to lawful money of the United States of
America.
"EBITDA" means, for each period of determination, the sum of
(a) consolidated net income of the Borrower and its Subsidiaries for such
period (whether positive or negative), plus, (b) each of the following to
the extent actually deducted in arriving at consolidated net income for such
period and without duplication: depreciation, amortization, taxes, and
interest expense of the Borrower and its Subsidiaries for such period, plus
(c) to the extent actually deducted in arriving at consolidated net income
for such period and without duplication, nonrecurring expenses of the
Acquisition of the Company and any other Acquisition after the Effective
Date.
<PAGE>
"Effective Date" means the date on which the conditions specified
in Section 6.01 are satisfied (or waived in accordance with Section 12.02).
"Environmental Laws" means all laws, rules, regulations, codes,
ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any Governmental
Authority, relating in any way to the environment, preservation or
reclamation of natural resources, the management, release or threatened
release of any Hazardous Material or to health and safety matters.
"Environmental Liability" means any liability, contingent or
otherwise (including any liability for damages, costs of environmental
remediation, fines, penalties or indemnities), of the Borrower, any
Subsidiary or the Company directly or indirectly resulting from or based
upon (a) violation of any Environmental Law, (b) the generation, use,
handling, transportation, storage, treatment or disposal of any Hazardous
Materials, (c) exposure to any Hazardous Materials, (d) the release or
threatened release of any Hazardous Materials into the environment or
(e) any contract, agreement or other consensual arrangement pursuant to
which liability is assumed or imposed with respect to any of the foregoing.
"Equity Interests" means shares of capital stock, partnership
interests, membership interests in a limited liability company, beneficial
interests in a trust or other equity ownership interests in a Person.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with the Borrower, is treated as a single
employer under Section 414(b) or (c) of the Code or, solely for purposes of
Section 302 of ERISA and Section 412 of the Code, is treated as a single
employer under Section 414 of the Code.
"ERISA Event" means (a) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder with respect to a
Plan (other than an event for which the 30-day notice period is waived);
(b) the existence with respect to any Plan of an "accumulated funding
deficiency" (as defined in Section 412 of the Code or Section 302 of ERISA),
whether or not waived; (c) the filing pursuant to Section 412(d) of the Code
or Section 303(d) of ERISA of an application for a waiver of the minimum
funding standard with respect to any Plan; (d) the incurrence by the
Borrower or any of its ERISA Affiliates of any liability under Title IV of
ERISA with respect to the termination of any Plan; (e) the receipt by the
Borrower or any ERISA Affiliate from the PBGC or a plan administrator of any
notice relating to an intention to terminate any Plan or Plans or to appoint
a trustee to administer any Plan; (f) the incurrence by the Borrower or any
of its ERISA Affiliates of any liability with respect to the withdrawal or
partial withdrawal from any Plan or Multiemployer Plan; or (g) the receipt
by the Borrower or any ERISA Affiliate of any notice, or the receipt by any
Multiemployer Plan from the Borrower or any ERISA Affiliate of any notice,
concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA.
"Eurodollar", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, are
bearing interest at a rate determined by reference to the Adjusted LIBO
Rate.
<PAGE>
"Event of Default" has the meaning assigned to such term in
Article X.
"Excluded Taxes" means, with respect to the Administrative Agent,
any Lender, or any other recipient of any payment to be made by or on
account of any obligation of the Borrower hereunder, (a) income or franchise
taxes imposed on (or measured by) its net income by the United States of
America, or by the jurisdiction under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any
Lender, in which its applicable lending office is located, (b) any branch
profits taxes imposed by the United States of America or any similar tax
imposed by any other jurisdiction in which the Borrower is located and
(c) in the case of a Foreign Lender (other than an assignee pursuant to a
request by the Borrower under Section 2.13(b)), any withholding tax that is
imposed on amounts payable to such Foreign Lender at the time such Foreign
Lender becomes a party to this Agreement (or designates a new lending
office) or is attributable to such Foreign Lender's failure to comply with
Section 2.11(e), except to the extent that such Foreign Lender (or its
assignor, if any) was entitled, at the time of designation of a new lending
office (or assignment), to receive additional amounts from the Borrower with
respect to such withholding tax pursuant to Section 2.11(a).
"Federal Funds Effective Rate" means, for any day, the weighted
average (rounded upwards, if necessary, to the next 1/100 of 1%) of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day that is a Business Day, the average
(rounded upwards, if necessary, to the next 1/100 of 1%) of the quotations
for such day for such transactions received by the Administrative Agent from
three Federal funds brokers of recognized standing selected by it.
"Financial Officer" means the chief financial officer, principal
accounting officer, treasurer or controller of the Borrower.
"Foreign Lender" means any Lender that is organized under the laws
of a jurisdiction other than that in which the Borrower is located. For
purposes of this definition, the United States of America, each State
thereof and the District of Columbia shall be deemed to constitute a single
jurisdiction.
"Foreign Subsidiary" means any Subsidiary that is organized under
the laws of a jurisdiction other than the United States of America or any
state thereof or the District of Columbia.
"GAAP" means generally accepted accounting principles in the
United States of America.
"Governmental Authority" means the government of the United States
of America, any other nation or any political subdivision thereof, whether
state or local, and any agency, authority, instrumentality, regulatory body,
court, central bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.
<PAGE>
"Guarantee" of or by any Person (the "guarantor") means any
obligation, contingent or otherwise, of the guarantor guaranteeing or having
the economic effect of guaranteeing any Indebtedness or other obligation of
any other Person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of the guarantor, direct or
indirect, (a) to purchase or pay (or advance or supply funds for the
purchase or payment of) such Indebtedness or other obligation or to purchase
(or to advance or supply funds for the purchase of) any security for the
payment thereof, (b) to purchase or lease property, securities or services
for the purpose of assuring the owner of such Indebtedness or other
obligation of the payment thereof, (c) to maintain working capital, equity
capital or any other financial statement condition or liquidity of the
primary obligor so as to enable the primary obligor to pay such Indebtedness
or other obligation or (d) as an account party in respect of any letter of
credit or letter of guaranty issued to support such Indebtedness or
obligation; provided, that the term Guarantee shall not include endorsements
for collection or deposit in the ordinary course of business.
"Guarantors" means all of the Subsidiaries of the Borrower as of
the Effective Date (except any Foreign Subsidiary) and each other Subsidiary
that at any time executes a Guaranty in favor of the Administrative Agent
and the Lenders, including the Company.
"Guaranty" means the guaranty agreement of each Guarantor in favor
of the Administrative Agent and the Lenders, in substantially the form of
Exhibit "D" hereto, as the same may be amended, supplemented, or modified
from time to time.
"Hazardous Materials" means all explosive or radioactive
substances or wastes and all hazardous or toxic substances, wastes or other
pollutants, including petroleum or petroleum distillates, asbestos or
asbestos containing materials, polychlorinated biphenyls, radon gas,
infectious or medical wastes and all other substances or wastes of any
nature regulated pursuant to any Environmental Law.
"Hedging Agreement" means any interest rate protection agreement,
foreign currency exchange agreement, commodity price protection agreement or
other interest or currency exchange rate or commodity price hedging
arrangement.
"Indebtedness" of any Person means, without duplication, (a) all
obligations of such Person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such Person
upon which interest charges are customarily paid, (d) all obligations of
such Person under conditional sale or other title retention agreements
relating to property acquired by such Person, (e) all obligations of such
Person in respect of the deferred purchase price of property or services
(excluding current accounts payable incurred in the ordinary course of
business), (f) all Indebtedness of others secured by (or for which the
holder of such Indebtedness has an existing right, contingent or otherwise,
to be secured by) any Lien on property owned or acquired by such Person,
whether or not the Indebtedness secured thereby has been assumed, (g) all
Guarantees by such Person of Indebtedness of others, (h) all Capital Lease
Obligations of such Person, (i) all obligations, contingent or otherwise, of
such Person as an account party in respect of letters of credit and letters
of guaranty, (j) all obligations, contingent or otherwise, of such Person in
respect of bankers' acceptances, (k) all reimbursement obligations of such
Person (whether contingent or otherwise) in respect of letters of credit,
<PAGE>
bankers' acceptances, surety or other bonds and similar instruments, (l) all
liabilities of such Person in respect of unfunded vested benefits under any
Plan and (m) payment obligations with respect to Hedging Agreements,
provided that for purposes of this definition, the amount of the obligation
of any Person under any Hedging Agreement shall be the amount determined, in
respect thereof as of the end of the most recently ended fiscal quarter of
such Person, based on the assumption that such Hedging Agreement has
terminated at the end of such fiscal quarter, and in making such
determination, if such Hedging Agreement provides for the netting of amounts
payable by and to each party thereto or if any Hedging Agreement provides
for the simultaneous payment of amounts by and to each party, then in each
such case, the amount of such obligation shall be the net amount so
determined. The Indebtedness of any Person shall include the Indebtedness
of any other entity (including any partnership in which such Person is a
general partner) to the extent such Person is liable therefor as a result of
such Person's ownership interest in or other relationship with such entity,
except to the extent the terms of such Indebtedness provide that such Person
is not liable therefor.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Interest Election Request" means a request by the Borrower to
convert or continue a Borrowing in accordance with Section 2.05.
"Interest Payment Date" means (a) with respect to any ABR Loan,
the last day of each March, June, September and December and (b) with
respect to any Eurodollar Loan, the last day of the Interest Period
applicable to the Borrowing of which such Loan is a part and, in the case of
a Eurodollar Borrowing with an Interest Period of more than three months'
duration, each day prior to the last day of such Interest Period that occurs
at intervals of three months' duration after the first day of such Interest
Period.
"Interest Period" means, with respect to any Eurodollar Borrowing,
the period commencing on the date of such Borrowing and ending on the
numerically corresponding day in the calendar month that is one, two, three
or six months thereafter, as the Borrower may elect, and provided, that
(i) if any Interest Period would end on a day other than a Business Day,
such Interest Period shall be extended to the next succeeding Business Day
unless such next succeeding Business Day would fall in the next calendar
month, in which case such Interest Period shall end on the next preceding
Business Day and (ii) any Interest Period that commences on the last
Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the last calendar month of such Interest
Period) shall end on the last Business Day of the last calendar month of
such Interest Period. For purposes hereof, the date of a Borrowing
initially shall be the date on which such Borrowing is made and thereafter
shall be the effective date of the most recent conversion or continuation of
such Borrowing.
"Lenders" means the Persons listed on Schedule 2.01 and any other
Person that shall have become a party hereto pursuant to an Assignment and
Acceptance, other than any such Person that ceases to be a party hereto
pursuant to an Assignment and Acceptance.
<PAGE>
"LIBO Rate" means, with respect to any Eurodollar Borrowing for
any Interest Period, the rate appearing on Page 3750 of the Telerate Service
(or on any successor or substitute page of such Service, or any successor to
or substitute for such Service, providing rate quotations comparable to
those currently provided on such page of such Service, as determined by the
Administrative Agent from time to time for purposes of providing quotations
of interest rates applicable to dollar deposits in the London interbank
market) at approximately 11:00 a.m., London time, two Business Days prior to
the commencement of such Interest Period, as the rate for dollar deposits
with a maturity comparable to such Interest Period. In the event that such
rate is not available at such time for any reason, then the "LIBO Rate" with
respect to such Eurodollar Borrowing for such Interest Period shall be the
rate at which dollar deposits of $5,000,000 and for a maturity comparable to
such Interest Period are offered by the principal London office of the
Administrative Agent in immediately available funds in the London interbank
market at approximately 11:00 a.m., London time, two Business Days prior to
the commencement of such Interest Period.
"Lien" means, with respect to any asset, (a) any mortgage, deed of
trust, lien, pledge, hypothecation, encumbrance, charge or security interest
in, on or of such asset, (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement (or
any financing lease having substantially the same economic effect as any of
the foregoing) relating to such asset and (c) in the case of securities, any
purchase option, call or similar right of a third party with respect to such
securities.
"Loan Documents" means this Agreement and all promissory notes,
security agreements, pledge agreements, deeds of trust, assignments, letters
of credit, letter of credit applications, guaranties, intercreditor
agreements, collateral sharing agreements, and other instruments, documents,
and agreements executed and delivered pursuant to or in connection with this
Agreement, as such instruments, documents, and agreements may be amended,
modified, renewed, extended, or supplemented from time to time.
"Loans" means the loans made by the Lenders to the Borrower
pursuant to this Agreement.
"Material Adverse Effect" means a material adverse effect on
(a) the business, assets, operations or condition, financial or otherwise,
of the Borrower and the Subsidiaries taken as a whole, (b) the ability of
the Borrower or any Guarantor to pay and perform any of the Obligations,
(c) any of the rights of or benefits available to the Administrative Agent
and the Lenders under this Agreement or any of the other Loan Documents, or
(d) the validity or enforceability of this Agreement or any of the other
Loan Documents. For purposes of Article V hereof, the term "Subsidiaries"
as used within the definition of Material Adverse Effect includes the
Company.
"Material Indebtedness" means Indebtedness (other than the Loans),
including obligations in respect of one or more Hedging Agreements, of any
one or more of the Borrower and its Subsidiaries in an aggregate principal
amount exceeding $1,000,000. For purposes of determining Material
Indebtedness, the "principal amount" of the obligations of the Borrower or
any Subsidiary in respect of any Hedging Agreement at any time shall be the
amount of its payment obligations thereunder determined as provided in
clause (m) of the definition of "Indebtedness" set forth in this
Section 1.01.
<PAGE>
"Maturity Date" means March 31, 2002.
"Maximum Rate" means, at any time and with respect to any Lender,
the maximum rate of interest under applicable law that such Lender may
charge the Borrower. The Maximum Rate shall be calculated in a manner that
takes into account any and all fees, payments, and other charges in respect
of the Loan Documents that constitute interest under applicable law. Each
change in any interest rate provided for herein based upon the Maximum Rate
resulting from a change in the Maximum Rate shall take effect without notice
to the Borrower at the time of such change in the Maximum Rate. For
purposes of determining the Maximum Rate under Texas law, the applicable
rate ceiling shall be the weekly ceiling described in, and computed in
accordance with, Chapter 303 of the Texas Finance Code.
"Moody's" means Moody's Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"Note" means a promissory note of the Borrower payable to the
order of a Lender, in substantially the form of Exhibit "A" hereto, and all
extensions, renewals, and modifications thereof and all substitutions
therefor.
"Obligations" means all obligations, indebtedness, and liabilities
of the Borrower and the Subsidiaries, or any of them, to the Administrative
Agent, the Arranger and the Lenders, or any of them, arising pursuant to any
of the Loan Documents or Hedging Agreements, now existing or hereafter
arising, whether direct, indirect, related, unrelated, fixed, contingent,
liquidated, unliquidated, joint, several, or joint and several, and all
interest accruing thereon and all attorneys' fees and other expenses
incurred in the enforcement or collection thereof.
"Other Taxes" means any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made hereunder or from the execution,
delivery or enforcement of, or otherwise with respect to, this Agreement.
"PBGC" means the Pension Benefit Guaranty Corporation referred to
and defined in ERISA and any successor entity performing similar functions.
"Permitted Encumbrances" means:
(a) Liens imposed by law for taxes that are not yet due or
are being contested in compliance with Section 7.04;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's and other like Liens imposed by law, arising in the ordinary
course of business and securing obligations that are not overdue by more
than 30 days or are being contested in compliance with Section 7.04;
(c) pledges and deposits made in the ordinary course of
business in compliance with workers' compensation, unemployment insurance
and other social security laws or regulations;
(d) deposits to secure the performance of bids, trade
contracts, leases, statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature, in each case in
the ordinary course of business;
<PAGE>
(e) judgment liens in respect of judgments that do not
constitute an Event of Default under clause (k) of Article X; and
(f) easements, zoning restrictions, rights-of-way and
similar encumbrances on real property imposed by law or arising in the
ordinary course of business that do not secure any monetary obligations and
do not materially detract from the value of the affected property or
interfere with the ordinary conduct of business of the Borrower or any
Subsidiary;
provided that the term "Permitted Encumbrances" shall not include any Lien
securing Indebtedness.
"Permitted Investments" means:
(a) direct obligations of, or obligations the principal of
and interest on which are unconditionally guaranteed by, the United States
of America (or by any agency thereof to the extent such obligations are
backed by the full faith and credit of the United States of America), in
each case maturing within one year from the date of acquisition thereof;
(b) investments in commercial paper maturing within 270 days
from the date of acquisition thereof and having, at such date of
acquisition, the highest credit rating obtainable from S&P or from Moody's;
(c) investments in certificates of deposit, banker's
acceptances and time deposits maturing within 180 days from the date of
acquisition thereof issued or guaranteed by or placed with, and money market
deposit accounts issued or offered by, any domestic office of any commercial
bank organized under the laws of the United States of America or any State
thereof which has a combined capital and surplus and undivided profits of
not less than $500,000,000;
(d) fully collateralized repurchase agreements with a term
of not more than 30 days for securities described in clause (a) above and
entered into with a financial institution satisfying the criteria described
in clause (c) above; and
(e) other investments of the types specified as "appropriate
investments" as set forth in the Borrower's investment policy, a copy of
which is attached hereto as Schedule 1.01.
"Person" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership,
Governmental Authority or other entity.
"Plan" means any employee pension benefit plan subject to the
provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of
ERISA, and in respect of which the Borrower or any ERISA Affiliate is (or,
if such plan were terminated, would under Section 4069 of ERISA be deemed to
be) an "employer" as defined in Section 3(5) of ERISA.
"Prime Rate" means the rate of interest per annum announced from
time to time by The Chase Manhattan Bank as its prime rate in effect at its
principal office in New York City, each change in the Prime Rate shall be
effective from and including the date such change is announced as being
effective.
<PAGE>
"Register" has the meaning set forth in Section 12.04.
"Related Parties" means, with respect to any specified Person,
such Person's Affiliates and the respective directors, officers, employees,
agents and advisors of such Person and such Person's Affiliates.
"Required Lenders" means, at any time, Lenders having Revolving
Credit Exposures and unused Commitments representing more than 66-2/3% of
the sum of the total Revolving Credit Exposures and unused Commitments at
such time.
"Restricted Payment" means any dividend or other distribution
(whether in cash, securities or other property) with respect to any Equity
Interests of the Borrower or any Subsidiary, or any payment (whether in
cash, securities or other property), including any sinking fund or similar
deposit, on account of the purchase, redemption, retirement, acquisition,
cancellation or termination of any Equity Interests of the Borrower or any
Subsidiary or any option, warrant or other right to acquire any Equity
Interests of the Borrower or any Subsidiary.
"Revolving Credit Exposure" means, with respect to any Lender at
any time, the sum of the outstanding principal amount of such Lender's
Revolving Loans at such time.
"Revolving Loan" means a Loan made pursuant to Section 2.02
hereof.
"S&P" means Standard & Poor's.
"Security Agreement" means the Security Agreement of the Borrower
and the Subsidiaries (including the Company) in favor of the Administrative
Agent for the benefit of the Administrative Agent and the Lenders, in
substantially the form of Exhibit "C" hereto, as the same may be amended,
supplemented or modified from time to time.
"Solvent" means, as to any Person, that (a) the aggregate fair
market value of its assets exceeds its liabilities, (b) it has sufficient
cash flow to enable it to pay its Indebtedness as such Indebtedness matures,
and (c) it does not have unreasonably small capital to conduct its business.
"Statutory Reserve Rate" means a fraction (expressed as a
decimal), the numerator of which is the number one and the denominator of
which is the number one minus the aggregate of the maximum reserve
percentages (including any marginal, special, emergency or supplemental
reserves) expressed as a decimal established by the Board to which the
Administrative Agent is subject for eurocurrency funding (currently
referred to as "Eurocurrency Liabilities" in Regulation D of the Board).
Such reserve percentages shall include those imposed pursuant to such
Regulation D. Eurodollar Loans shall be deemed to constitute eurocurrency
funding and to be subject to such reserve requirements without benefit of or
credit for proration, exemptions or offsets that may be available from time
to time to any Lender under such Regulation D or any comparable regulation.
The Statutory Reserve Rate shall be adjusted automatically on and as of the
effective date of any change in any reserve percentage.
"Subordinated Debt" means the indebtedness of Borrower evidenced
by the Subordinated Note.
<PAGE>
"Subordinated Note" means that certain promissory note dated April
3, 2000, executed by Borrower in connection with the Acquisition of the
Company, and payable to the order of Utell International Group Ltd., in the
principal amount of $20,000,000.
"subsidiary" means, with respect to any Person (the "parent") at
any date, any corporation, limited liability company, partnership,
association or other entity the accounts of which would be consolidated with
those of the parent in the parent's consolidated financial statements if
such financial statements were prepared in accordance with GAAP as of such
date, as well as any other corporation, limited liability company,
partnership, association or other entity (a) of which securities or other
ownership interests representing more than 50% of the equity or more than
50% of the ordinary voting power or, in the case of a partnership, more than
50% of the general partnership interests are, as of such date, owned,
controlled or held, or (b) that is, as of such date, otherwise Controlled,
by the parent or one or more subsidiaries of the parent or by the parent and
one or more subsidiaries of the parent.
"Subsidiary" means any subsidiary of the Borrower. For purposes
of the representations and warranties made herein on the Effective Date, the
term "Subsidiary" includes each of the Company and its Subsidiaries, except
for clauses (a) and (b) of Section 5.04.
"Taxes" means any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any
Governmental Authority.
"Transactions" means the execution, delivery and performance by
the Borrower and each Guarantor of this Agreement and the other Loan
Documents to which it is a party, the borrowing of Loans and the use of the
proceeds thereof.
"Type", when used in reference to any Loan or Borrowing, refers to
whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the Adjusted LIBO Rate or the
Alternate Base Rate.
"UCC" means the Uniform Commercial Code as in effect in the State
of Texas.
"Withdrawal Liability" means liability to a Multiemployer Plan as
a result of a complete or partial withdrawal from such Multiemployer Plan,
as such terms are defined in Part I of Subtitle E of Title IV of ERISA.
<PAGE>
SECTION 1.2 Terms Generally.
The definitions of terms herein shall apply equally to the
singular and plural forms of the terms defined. Whenever the context may
require, any pronoun shall include the corresponding masculine, feminine and
neuter forms. The words "include", "includes" and "including" shall be
deemed to be followed by the phrase "without limitation". The word "will"
shall be construed to have the same meaning and effect as the word "shall".
Unless the context requires otherwise (a) any definition of or reference to
any agreement, instrument or other document herein shall be construed as
referring to such agreement, instrument or other document as from time to
time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth
herein), (b) any reference herein to any Person shall be construed to
include such Person's successors and assigns, (c) the words "herein",
"hereof" and "hereunder", and words of similar import, shall be construed to
refer to this Agreement in its entirety and not to any particular provision
hereof, (d) all references herein to Articles, Sections, Exhibits and
Schedules shall be construed to refer to Articles and Sections of, and
Exhibits and Schedules to, this Agreement and (e) the words "asset" and
"property" shall be construed to have the same meaning and effect and to
refer to any and all tangible and intangible assets and properties,
including cash, securities, accounts and contract rights.
SECTION 1.3 Accounting Terms; GAAP.
Except as otherwise expressly provided herein, all terms of an
accounting or financial nature shall be construed in accordance with GAAP,
as in effect from time to time; provided that, if the Borrower notifies the
Administrative Agent that the Borrower requests an amendment to any
provision hereof to eliminate the effect of any change occurring after the
date hereof in GAAP or in the application thereof on the operation of such
provision (or if the Administrative Agent notifies the Borrower that the
Required Lenders request an amendment to any provision hereof for such
purpose), regardless of whether any such notice is given before or after
such change in GAAP or in the application thereof, then such provision shall
be interpreted on the basis of GAAP as in effect and applied immediately
before such change shall have become effective until such notice shall have
been withdrawn or such provision amended in accordance herewith.
ARTICLE II
The Credits
SECTION 2.1 Commitments
Subject to the terms and conditions set forth herein, each Lender
agrees to make Revolving Loans to the Borrower from time to time during the
Availability Period in an aggregate principal amount that will not result in
(a) such Lender's Revolving Credit Exposure exceeding such Lender's
Commitment, or (b) the sum of the total Revolving Credit Exposures exceeding
the total Commitments. Within the foregoing limits and subject to the terms
and conditions set forth herein, the Borrower may borrow, prepay and
reborrow Revolving Loans.
<PAGE>
SECTION 2.2 Loans and Borrowings
(a) Each Revolving Loan shall be made as part of a Borrowing
consisting of Revolving Loans made by the Lenders ratably in accordance
with their respective Commitments. The failure of any Lender to make
any Loan required to be made by it shall not relieve any other Lender
of its obligations hereunder; provided that the Commitments of the
Lenders are several and no Lender shall be responsible for any other
Lender's failure to make Loans as required.
(b) Subject to Sections 3.02, 3.03 and 3.04, each Borrowing shall
be comprised entirely of ABR Loans or Eurodollar Loans as the Borrower
may request in accordance herewith. Each Lender at its option may make
any Eurodollar Loan by causing any domestic or foreign branch or
Affiliate of such Lender to make such Loan; provided that any exercise
of such option shall not affect the obligation of the Borrower to repay
such Loan in accordance with the terms of this Agreement.
(c) At the commencement of each Interest Period for any
Eurodollar Borrowing, such Borrowing shall be in an aggregate amount
that is an integral multiple of $500,000 and not less than $1,000,000.
At the time that each ABR Borrowing is made, such Borrowing shall be
in an aggregate amount that is an integral multiple of $500,000 and not
less than $1,000,000 provided that an ABR Borrowing may be in an
aggregate amount that is equal to the entire unused balance of the
total Commitments. Borrowings of more than one Type may be outstanding
at the same time; provided that there shall not at any time be more
than a total of three Eurodollar Borrowings outstanding.
(d) Notwithstanding any other provision of this Agreement, the
Borrower shall not be entitled to request, or to elect to convert or
continue, any Borrowing if the Interest Period requested with respect
thereto would end after the Maturity Date.
SECTION 2.3 Requests for Borrowings.
To request a Borrowing, the Borrower shall notify the
Administrative Agent of such request by telephone (a) in the case of a
Eurodollar Borrowing, not later than 11:00 a.m., Dallas, Texas time, three
Business Days before the date of the proposed Borrowing or (b) in the case
of an ABR Borrowing, not later than 11:00 a.m., Dallas, Texas time, on the
same Business Day as the date of the proposed Borrowing. Each such
telephonic Borrowing Request shall be irrevocable and shall be confirmed
promptly by hand delivery or telecopy to the Administrative Agent of a
written Borrowing Request by means of a Borrowing Request Form signed by the
Borrower. Each such telephonic and written Borrowing Request shall specify
the following information in compliance with Section 2.02:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business
Day;
(iii) whether such Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing;
(iv) in the case of a Eurodollar Borrowing, the initial
Interest Period to be applicable thereto, which shall be a period
contemplated by the definition of the term "Interest Period"; and
<PAGE>
(v) the location and number of the Borrower's account to
which funds are to be disbursed, which shall comply with the
requirements of Section 2.04.
If no election as to the Type of Borrowing is specified, then the requested
Borrowing shall be an ABR Borrowing. If no Interest Period is specified
with respect to any requested Eurodollar Borrowing, then the Borrower shall
be deemed to have selected an Interest Period of one month's duration.
Promptly following receipt of a Borrowing Request in accordance with this
Section, the Administrative Agent shall advise each Lender of the details
thereof and of the amount of such Lender's Loan to be made as part of the
requested Borrowing.
SECTION 2.4 Funding of Borrowings.
(a) Each Lender shall make each Loan to be made by it hereunder
on the proposed date thereof by wire transfer of immediately available funds
by 2:00 p.m., Dallas, Texas time, to the account of the Administrative Agent
most recently designated by it for such purpose by notice to the Lenders.
The Administrative Agent will make such Loans available to the Borrower by
promptly crediting the amounts so received, in like funds, to an account of
the Borrower maintained with the Administrative Agent in Dallas, Texas and
designated by the Borrower in the applicable Borrowing Request.
(b) Unless the Administrative Agent shall have received notice
from a Lender prior to the proposed date of any Borrowing that such Lender
will not make available to the Administrative Agent such Lender's share of
such Borrowing, the Administrative Agent may assume that such Lender has
made such share available on such date in accordance with paragraph (a) of
this Section and may, in reliance upon such assumption, make available to
the Borrower a corresponding amount. In such event, if a Lender has not in
fact made its share of the applicable Borrowing available to the
Administrative Agent, then the applicable Lender and the Borrower severally
agree to pay to the Administrative Agent forthwith on demand such
corresponding amount with interest thereon, for each day from and including
the date such amount is made available to the Borrower to but excluding the
date of payment to the Administrative Agent, at (i) in the case of such
Lender, the greater of the Federal Funds Effective Rate and a rate
determined by the Administrative Agent in accordance with banking industry
rules on interbank compensation or (ii) in the case of the Borrower, the
interest rate applicable to ABR Loans. If such Lender pays such amount to
the Administrative Agent, then such amount shall constitute such Lender's
Loan included in such Borrowing.
SECTION 2.5 Interest Elections.
(a) Each Borrowing initially shall be of the Type specified in
the applicable Borrowing Request and, in the case of a Eurodollar Borrowing,
shall have an initial Interest Period as specified in such Borrowing
Request. Thereafter, the Borrower may elect to convert such Borrowing to a
different Type or to continue such Borrowing and, in the case of a
Eurodollar Borrowing, may elect Interest Periods therefor, all as provided
in this Section. The Borrower may elect different options with respect to
different portions of the affected Borrowing, in which case each such
portion shall be allocated ratably among the Lenders holding the Loans
comprising such Borrowing, and the Loans comprising each such portion shall
be considered a separate Borrowing.
<PAGE>
(b) To make an election pursuant to this Section, the Borrower
shall notify the Administrative Agent of such election by telephone by the
time that a Borrowing Request would be required under Section 2.03 if the
Borrower were requesting a Borrowing of the Type resulting from such
election to be made on the effective date of such election. Each such
telephonic Interest Election Request shall be irrevocable and shall be
confirmed promptly by hand delivery or telecopy to the Administrative Agent
of a written Interest Election Request by means of a Borrowing Request Form
signed by the Borrower.
(c) Each telephonic and written Interest Election Request shall
specify the following information in compliance with Section 2.02 and 2.03:
(i) the Borrowing to which such Interest Election Request
applies and, if different options are being elected with respect
to different portions thereof, the portions thereof to be
allocated to each resulting Borrowing (in which case the
information to be specified pursuant to clauses (iii) and (iv)
below shall be specified for each resulting Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii whether the resulting Borrowing is to be an ABR
Borrowing or a Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing,
the Interest Period to be applicable thereto after giving effect
to such election, which shall be a period contemplated by the
definition of the term "Interest Period".
If any such Interest Election Request requests a Eurodollar Borrowing but
does not specify an Interest Period, then the Borrower shall be deemed to
have selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election Request,
the Administrative Agent shall advise each Lender of the details thereof and
of such Lender's portion of each resulting Borrowing.
(e) If the Borrower fails to deliver a timely Interest Election
Request with respect to a Eurodollar Borrowing prior to the end of the
Interest Period applicable thereto, then, unless such Borrowing is repaid as
provided herein, at the end of such Interest Period such Borrowing shall be
converted to an ABR Borrowing. Notwithstanding any contrary provision
hereof, if an Event of Default has occurred and is continuing and the
Administrative Agent, at the request of the Required Lenders, so notifies
the Borrower, then, so long as an Event of Default is continuing (i) no
outstanding Borrowing may be converted to or continued as a Eurodollar
Borrowing and (ii) unless repaid, each Eurodollar Borrowing shall be
converted to an ABR Borrowing at the end of the Interest Period applicable
thereto.
SECTION 2.6 Termination and Reduction of Commitments
(a) Unless previously terminated, the Commitments shall terminate
on the Maturity Date.
<PAGE>
(b) The Borrower may at any time terminate, or from time to time
reduce, the Commitments; provided that (i) each reduction of the Commitments
shall be in an amount that is an integral multiple of $1,000,000 and not
less than $1,000,000 and (ii) the Borrower shall not terminate or reduce the
Commitments if, after giving effect to any concurrent prepayment of the
Loans in accordance with Section 2.08, the Revolving Credit Exposures would
exceed the total Commitments.
(c) The Borrower shall notify the Administrative Agent of any
election to terminate or reduce the Commitments under paragraph (b) of this
Section at least three Business Days prior to the effective date of such
termination or reduction, specifying such election and the effective date
thereof. Promptly following receipt of any notice, the Administrative Agent
shall advise the Lenders of the contents thereof. Each notice delivered by
the Borrower pursuant to this Section shall be irrevocable; provided that a
notice of termination of the Commitments delivered by the Borrower may state
that such notice is conditioned upon the effectiveness of other credit
facilities, in which case such notice may be revoked by the Borrower (by
notice to the Administrative Agent on or prior to the specified effective
date) if such condition is not satisfied. Any termination or reduction of
the Commitments shall be permanent. Each reduction of the Commitments shall
be made ratably among the Lenders in accordance with their respective
Commitments.
SECTION 2.7 Repayment of Loans; Evidence of Debt.
(a) The Borrower hereby unconditionally promises to pay to the
Administrative Agent for the account of each Lender the then unpaid
principal amount of each Revolving Loan on the Maturity Date.
(b) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness of the Borrower
to such Lender resulting from each Loan made by such Lender, including the
amounts of principal and interest payable and paid to such Lender from time
to time hereunder.
(c) The Administrative Agent shall maintain accounts in which it
shall record (i) the amount of each Loan made hereunder, the Type thereof
and the Interest Period applicable thereto, (ii) the amount of any principal
or interest due and payable or to become due and payable from the Borrower
to each Lender hereunder and (iii) the amount of any sum received by the
Administrative Agent hereunder for the account of the Lenders and each
Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to
paragraph (b) or (c) of this Section shall be prima facie evidence of the
existence and amounts of the obligations recorded therein; provided that the
failure of any Lender or the Administrative Agent to maintain such accounts
or any error therein shall not in any manner affect the obligation of the
Borrower to repay the Loans in accordance with the terms of this Agreement.
(e) The obligation of the Borrower to repay each Lender for Loans
made by such Lender and interest thereon shall be evidenced by a Note
executed by the Borrower, payable to the order of such Lender, in the
principal amount of such Lender's Commitment as in effect on the date
hereof, and initially dated the date hereof.
<PAGE>
SECTION 2.8 Prepayment of Loans.
(a) The Borrower shall have the right at any time and from time
to time to prepay any Borrowing in whole or in part, subject to prior notice
in accordance with paragraph (b) of this Section.
(b) The Borrower shall notify the Administrative Agent by telephone
(confirmed by telecopy) of any prepayment of a Eurodollar Borrowing that
will be made before the last day of the applicable Interest Period and shall
pay all amounts required to be paid by Section 3.05 concurrently with such
prepayment. Such notice shall be given not later than 11:00 a.m., Dallas,
Texas time, on the date of prepayment. Each such notice shall be
irrevocable and shall specify the prepayment date and the principal amount
of each Borrowing or portion thereof to be prepaid; provided that, if a
notice of prepayment is given in connection with a conditional notice of
termination of the Commitments as contemplated by Section 2.06, then such
notice of prepayment may be revoked if such notice of termination is revoked
in accordance with Section 2.06. Promptly following receipt of any such
notice, the Administrative Agent shall advise the Lenders of the contents
thereof. Each partial prepayment of any Borrowing shall be in an amount
that would be permitted in the case of an advance of a Borrowing of the same
Type as provided in Section 2.02. Each prepayment of a Borrowing shall be
applied ratably to the Loans included in the prepaid Borrowing. Prepayments
shall be accompanied by accrued interest to the extent required by
Section 2.10.
(c) If at any time the total Revolving Credit Exposures exceeds
the total Commitments, the Borrower shall promptly prepay the outstanding
Borrowings by the amount of the excess plus accrued and unpaid interest on
the amount so prepaid.
SECTION 2.9 Fees.
(a) The Borrower agrees to pay to the Administrative Agent for
the account of each Lender (pro rata in accordance with the Commitment of
each Lender) a Commitment Fee on the daily average unused amount of the
Commitments for the Availability Period, at the rate per annum set forth in
the definition of Applicable Margin. For purposes of calculating the
Commitment Fee hereunder, the Commitments shall be deemed utilized by the
amount of all Borrowings. Accrued Commitment Fees payable under this
Section shall be payable in arrears on the last day of March, June,
September and December of each year and on the date on which the Commitments
terminate, commencing on the first such date to occur after the date hereof.
All Commitment Fees shall be computed on the basis of a year of 360 days
and shall be payable for the actual number of days elapsed (including the
first day but excluding the last day).
(b) The Borrower agrees to pay to the Administrative Agent, for
its own account, fees payable in the amounts and at the times separately
agreed upon between the Borrower and the Administrative Agent.
(c) All fees payable hereunder shall be paid on the dates due, in
immediately available funds, to the Administrative Agent for distribution,
in the case of Commitment Fees and participation fees, to the Lenders. Fees
paid shall not be refundable under any circumstances.
<PAGE>
SECTION 2.10 Interest.
(a) The Loans comprising each ABR Borrowing shall bear interest
at the Alternate Base Rate plus the Applicable Margin.
(b) The Loans comprising each Eurodollar Borrowing shall bear
interest at the Adjusted LIBO Rate for the Interest Period in effect for
such Borrowing plus the Applicable Margin.
(c) Notwithstanding the foregoing, if any principal of or
interest on any Loan or any fee or other amount payable by the Borrower
hereunder is not paid when due, whether at stated maturity, upon
acceleration or otherwise, such overdue amount shall bear interest, after as
well as before judgment, at a rate per annum equal to (i) in the case of
overdue principal of any Loan, 2% plus the rate otherwise applicable to
such Loan as provided in the preceding paragraphs of this Section or (ii) in
the case of any other amount, including interest and fees, 2% plus the rate
applicable to ABR Loans as provided in paragraph (a) of this Section.
(d) Accrued interest on each Loan shall be payable in arrears on
each Interest Payment Date for such Loan and upon termination of the
Commitments; provided that (i) interest accrued pursuant to paragraph (c) of
this Section shall be payable on demand, (ii) in the event of any repayment
or prepayment of any Loan (other than a prepayment of an ABR Loan prior to
the end of the Availability Period), accrued interest on the principal
amount repaid or prepaid shall be payable on the date of such repayment or
prepayment and (iii) in the event of any conversion of any Eurodollar Loan
prior to the end of the current Interest Period therefor, accrued interest
on such Loan shall be payable on the effective date of such conversion.
(e) All interest hereunder shall be computed on the basis of a
year of 360 days, except that interest computed by reference to the
Alternate Base Rate at times when the Alternate Base Rate is based on the
Prime Rate shall be computed on the basis of a year of 365 days (or 366 days
in a leap year), and in each case shall be payable for the actual number of
days elapsed (including the first day but excluding the last day). The
applicable Alternate Base Rate, Adjusted LIBO Rate or LIBO Rate shall be
determined by the Administrative Agent, and such determination shall be
conclusive absent manifest error.
SECTION 2.11 Taxes.
(a) Any and all payments by or on account of any obligation of
the Borrower hereunder shall be made free and clear of and without deduction
for any Indemnified Taxes or Other Taxes; provided that if the Borrower
shall be required to deduct any Indemnified Taxes or Other Taxes from such
payments, then (i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative Agent or
Lender (as the case may be) receives an amount equal to the sum it would
have received had no such deductions been made, (ii) the Borrower shall make
such deductions and (iii) the Borrower shall pay the full amount deducted to
the relevant Governmental Authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
<PAGE>
(c) The Borrower shall indemnify the Administrative Agent and
each Lender, within 10 days after written demand therefor, for the full
amount of any Indemnified Taxes or Other Taxes paid by the Administrative
Agent or such Lender, as the case may be, on or with respect to any payment
by or on account of any obligation of the Borrower hereunder (including
Indemnified Taxes or Other Taxes imposed or asserted on or attributable to
amounts payable under this Section) and any penalties, interest and
reasonable expenses arising therefrom or with respect thereto, whether or
not such Indemnified Taxes or Other Taxes were correctly or legally imposed
or asserted by the relevant Governmental Authority. A certificate as to the
amount of such payment or liability delivered to the Borrower by a Lender,
or by the Administrative Agent on its own behalf or on behalf of a Lender,
shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes
or Other Taxes by the Borrower to a Governmental Authority, the Borrower
shall deliver to the Administrative Agent the original or a certified copy
of a receipt issued by such Governmental Authority evidencing such payment,
a copy of the return reporting such payment or other evidence of such
payment reasonably satisfactory to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which the
Borrower is located, or any treaty to which such jurisdiction is a party,
with respect to payments under this Agreement shall deliver to the Borrower
(with a copy to the Administrative Agent), at the time or times prescribed
by applicable law, such properly completed and executed documentation
prescribed by applicable law or reasonably requested by the Borrower as will
permit such payments to be made without withholding or at a reduced rate.
SECTION 2.12 Payments Generally; Pro Rata Treatment; Sharing of
Set-offs.
(a) The Borrower shall make each payment required to be made by
it hereunder (whether of principal, interest, fees, or of amounts payable
under Section 2.11, 3.01 or 3.05, or otherwise) prior to 12:00 noon, Dallas,
Texas time, on the date when due, in immediately available funds, without
set-off or counterclaim. Any amounts received after such time on any date
may, in the discretion of the Administrative Agent, be deemed to have been
received on the next succeeding Business Day for purposes of calculating
interest thereon. All such payments shall be made to the Administrative
Agent at its offices at 1111 Fannin Street, 9th Floor, MS46, Houston, Texas
77002, except that payments pursuant to Sections 2.11, 3.01, 3.05 and 12.03
shall be made directly to the Persons entitled thereto. The Administrative
Agent shall distribute any such payments received by it for the account of
any other Person to the appropriate recipient promptly following receipt
thereof. If any payment hereunder shall be due on a day that is not a
Business Day, the date for payment shall be extended to the next succeeding
Business Day, and, in the case of any payment accruing interest, interest
thereon shall be payable for the period of such extension. All payments
hereunder shall be made in dollars.
(b) If at any time insufficient funds are received by and
available to the Administrative Agent to pay fully all amounts of principal,
interest and fees then due hereunder, such funds shall be applied (i) first,
towards payment of interest and fees then due hereunder, ratably among the
parties entitled thereto in accordance with the amounts of interest and fees
then due to such parties, and (ii) second, towards payment of principal then
due hereunder, ratably among the parties entitled thereto in accordance with
the amounts of principal then due to such parties.
<PAGE>
(c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Loans resulting in such Lender receiving payment of a
greater proportion of the aggregate amount of its Loans and accrued
interest thereon than the proportion received by any other Lender, then the
Lender receiving such greater proportion shall purchase (for cash at face
value) participations in the Loans of other Lenders to the extent necessary
so that the benefit of all such payments shall be shared by the Lenders
ratably in accordance with the aggregate amount of principal of and accrued
interest on their respective Loans; provided that (i) if any such
participations are purchased and all or any portion of the payment giving
rise thereto is recovered, such participations shall be rescinded and the
purchase price restored to the extent of such recovery, without interest,
and (ii) the provisions of this paragraph shall not be construed to apply to
any payment made by the Borrower pursuant to and in accordance with the
express terms of this Agreement or any payment obtained by a Lender as
consideration for the assignment of or sale of a participation in any of its
Loans to any assignee or participant, other than to the Borrower or any
Subsidiary or Affiliate thereof (as to which the provisions of this
paragraph shall apply). The Borrower consents to the foregoing and agrees,
to the extent it may effectively do so under applicable law, that any Lender
acquiring a participation pursuant to the foregoing arrangements may
exercise against the Borrower rights of set-off and counterclaim with
respect to such participation as fully as if such Lender were a direct
creditor of the Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice
from the Borrower prior to the date on which any payment is due to the
Administrative Agent for the account of the Lenders hereunder that the
Borrower will not make such payment, the Administrative Agent may assume
that the Borrower has made such payment on such date in accordance herewith
and may, in reliance upon such assumption, distribute to the Lenders the
amount due. In such event, if the Borrower has not in fact made such
payment, then each of the Lenders, as the case may be, severally agrees to
repay to the Administrative Agent forthwith on demand the amount so
distributed to such Lender with interest thereon, for each day from and
including the date such amount is distributed to it to but excluding the
date of payment to the Administrative Agent, at the greater of the Federal
Funds Effective Rate and a rate determined by the Administrative Agent in
accordance with banking industry rules on interbank compensation.
(e) If any Lender shall fail to make any payment required to be
made by it pursuant to Section 2.04(b) or 2.12(d), then the Administrative
Agent may, in its discretion (notwithstanding any contrary provision
hereof), apply any amounts thereafter received by the Administrative Agent
for the account of such Lender to satisfy such Lender's obligations under
such Sections until all such unsatisfied obligations are fully paid.
<PAGE>
SECTION 2.13 Mitigation Obligations; Replacement of Lenders.
(a) If any Lender requests compensation under Section 3.01, or
if the Borrower is required to pay any additional amount to any Lender or
any Governmental Authority for the account of any Lender pursuant to
Section 2.11, then such Lender shall use reasonable efforts to designate a
different lending office for funding or booking its Loans hereunder or to
assign its rights and obligations hereunder to another of its offices,
branches or affiliates, if, in the judgment of such Lender, such designation
or assignment (i) would eliminate or reduce amounts payable pursuant to
Section 2.11 or 3.01, as the case may be, in the future and (ii) would not
subject such Lender to any unreimbursed cost or expense and would not
otherwise be disadvantageous to such Lender. The Borrower hereby agrees to
pay all reasonable costs and expenses incurred by any Lender in connection
with any such designation or assignment.
(b) If any Lender requests compensation under Section 3.01, or if
the Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to
Section 2.11, or if any Lender defaults in its obligation to fund Loans
hereunder, then the Borrower may, at its sole expense and effort, upon
notice to such Lender and the Administrative Agent, require such Lender to
assign and delegate, without recourse (in accordance with and subject to the
restrictions contained in Section 12.04), all its interests, rights and
obligations under this Agreement to an assignee that shall assume such
obligations (which assignee may be another Lender, if a Lender accepts such
assignment); provided that (i) the Borrower shall have received the prior
written consent of the Administrative Agent, which consent shall not
unreasonably be withheld, (ii) such Lender shall have received payment of an
amount equal to the outstanding principal of its Loans, accrued interest
thereon, accrued fees and all other amounts payable to it hereunder, from
the assignee (to the extent of such outstanding principal and accrued
interest and fees) or the Borrower (in the case of all other amounts) and
(iii) in the case of any such assignment resulting from a claim for
compensation under Section 3.01 or payments required to be made pursuant to
Section 2.11, such assignment will result in a reduction in such
compensation or payments. A Lender shall not be required to make any such
assignment and delegation if, prior thereto, as a result of a waiver by such
Lender or otherwise, the circumstances entitling the Borrower to require
such assignment and delegation cease to apply.
ARTICLE III
Yield Protection and Illegality
SECTION 3.1 Increased Costs.
(a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of, deposits with or
for the account of, or credit extended by, any Lender (except any
such reserve requirement reflected in the Adjusted LIBO Rate); or
(ii) impose on any Lender or the London interbank market any
other condition affecting this Agreement or Eurodollar Loans made
by such Lender;
<PAGE>
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Loan (or of maintaining its
obligation to make any such Loan) or to reduce the amount of any sum
received or receivable by such Lender hereunder (whether of principal,
interest or otherwise), then the Borrower will pay to such Lender, as the
case may be, such additional amount or amounts as will compensate such
Lender, as the case may be, for such additional costs incurred or reduction
suffered.
(b) If any Lender determines that any Change in Law regarding
capital requirements has or would have the effect of reducing the rate of
return on such Lender's capital or on the capital of such Lender's holding
company, if any, as a consequence of this Agreement or the Loans made by
such Lender, to a level below that which such Lender or such Lender's
holding company could have achieved but for such Change in Law (taking into
consideration such Lender's policies and the policies of such Lender's
holding company with respect to capital adequacy), then from time to time
the Borrower will pay to such Lender such additional amount or amounts as
will compensate such Lender or such Lender's holding company for any such
reduction suffered.
(c) A certificate of a Lender setting forth the amount or amounts
necessary to compensate such Lender, or its holding company, as the case may
be, as specified in paragraph (a) or (b) of this Section shall be delivered
to the Borrower and shall be conclusive absent manifest error. The Borrower
shall pay such Lender the amount shown as due on any such certificate within
10 days after receipt thereof.
(d) Failure or delay on the part of any Lender to demand
compensation pursuant to this Section shall not constitute a waiver of such
Lender's right to demand such compensation; provided that the Borrower shall
not be required to compensate a Lender pursuant to this Section for any
increased costs or reductions incurred more than 270 days prior to the date
that such Lender, as the case may be, notifies the Borrower of the Change in
Law giving rise to such increased costs or reductions and of such Lender's
intention to claim compensation therefor; provided further that, if the
Change in Law giving rise to such increased costs or reductions is
retroactive, then the 270-day period referred to above shall be extended to
include the period of retroactive effect thereof.
SECTION 3.2 Alternate Rate of Interest.
If prior to the commencement of any Interest Period for a
Eurodollar Borrowing:
(a) the Administrative Agent determines (which determination
shall be conclusive absent manifest error) that adequate and reasonable
means do not exist for ascertaining the Adjusted LIBO Rate or the LIBO Rate,
as applicable, for such Interest Period; or
(b) the Administrative Agent is advised by the Required Lenders
that the Adjusted LIBO Rate or the LIBO Rate, as applicable, for such
Interest Period will not adequately and fairly reflect the cost to such
Lenders (or Lender) of making or maintaining their Loans (or its Loan)
included in such Borrowing for such Interest Period;
<PAGE>
then the Administrative Agent shall give notice thereof to the Borrower and
the Lenders by telephone or telecopy as promptly as practicable thereafter
and, until the Administrative Agent notifies the Borrower and the Lenders
that the circumstances giving rise to such notice no longer exist, (i) any
Interest Election Request that requests the conversion of any Borrowing to,
or continuation of any Borrowing as, a Eurodollar Borrowing shall be
ineffective and (ii) if any Borrowing Request requests a Eurodollar
Borrowing, such Borrowing shall be made as an ABR Borrowing.
SECTION 3.3 Illegality.
Notwithstanding any other provision of this Agreement, in the event that
it becomes unlawful for any Lender or its applicable lending office to
(a) honor its obligation to make Eurodollar Borrowings hereunder or
(b) maintain Eurodollar Borrowings hereunder, then such Lender shall
promptly notify the Borrower (with a copy to the Administrative Agent)
thereof and such Lender's obligation to make or maintain Eurodollar
Borrowings and to convert other Types of Borrowings into Eurodollar
Borrowings hereunder shall be suspended until such time as such Lender may
again make and maintain Eurodollar Borrowings, in which case (i) all
Borrowings which would be otherwise made by such Lender as Eurodollar
Borrowings shall be made instead as ABR Borrowings and all Borrowings which
would otherwise be converted into (or continued as) Eurodollar Borrowings
shall be converted instead into (or shall remain as) ABR Borrowings and
(ii) if such Lender so requests by notice to the Borrower (with a copy to
the Administrative Agent), all Eurodollar Borrowings of such Lender shall be
automatically converted into ABR Borrowings on the date specified by such
Lender in such notice.
SECTION 3.4 Treatment of Affected Borrowings.
If the Eurodollar Borrowings of any Lender are to be converted
pursuant to Section 3.03 hereof, such Lender's Eurodollar Borrowings shall
be automatically converted into ABR Borrowings on the last day(s) of the
then current Interest Period(s) for such Eurodollar Borrowings (or on such
earlier date as such Lender may specify to the Borrower with a copy to the
Administrative Agent) and, unless and until such Lender gives notice as
provided below that the circumstances specified in Section 3.03 hereof
which gave rise to such conversion no longer exist:
(a) To the extent that such Lender's Eurodollar Borrowings have
been so converted, all payments and prepayments of principal which would
otherwise be applied to such Lender's Eurodollar Borrowings shall be applied
instead to its ABR Borrowings;
(b) All Borrowings which would otherwise be made or continued by
such Lender as Eurodollar Borrowings shall be made as or converted into ABR
Borrowings and all Borrowings of such Lender which would otherwise be
converted into Eurodollar Borrowings shall be converted instead into (or
shall remain as) ABR Borrowings; and
<PAGE>
If such Lender gives notice to the Borrower (with a copy to the
Administrative Agent) that the circumstances specified in Section 3.03
hereof which gave rise to the conversion of such Lender's Eurodollar
Borrowings pursuant to this Section 3.04 no longer exist (which such Lender
agrees to do promptly upon such circumstances ceasing to exist) at a time
when Eurodollar Borrowings are outstanding, such Lender's ABR Borrowings
shall be automatically converted, on the first day(s) of the next succeeding
Interest Period(s) for such outstanding Eurodollar Borrowings to the extent
necessary so that, after giving effect thereto, all Borrowings held by the
Lenders holding Eurodollar Borrowings and by such Lender are held pro rata
(as to principal amounts, Types, and Interest Periods) in accordance with
their respective Commitments.
SECTION 3.5 Break Funding Payments.
In the event of (a) the payment of any principal of any Eurodollar
Loan other than on the last day of an Interest Period applicable thereto
(including as a result of an Event of Default), (b) the conversion of any
Eurodollar Loan other than on the last day of the Interest Period applicable
thereto, (c) the failure to borrow, convert, continue or prepay any Loan on
the date specified in any notice delivered pursuant hereto (regardless of
whether such notice may be revoked under Section 2.08(b) and is revoked in
accordance therewith), or (d) the assignment of any Eurodollar Loan other
than on the last day of the Interest Period applicable thereto as a result
of a request by the Borrower pursuant to Section 2.13, then, in any such
event, the Borrower shall compensate each Lender for the loss, cost and
expense attributable to such event. In the case of a Eurodollar Loan, such
loss, cost or expense to any Lender shall be deemed to include an amount
determined by such Lender to be the excess, if any, of (i) the amount of
interest which would have accrued on the principal amount of such Loan had
such event not occurred, at the Adjusted LIBO Rate that would have been
applicable to such Loan, for the period from the date of such event to the
last day of the then current Interest Period therefor (or, in the case of a
failure to borrow, convert or continue, for the period that would have been
the Interest Period for such Loan), over (ii) the amount of interest which
would accrue on such principal amount for such period at the interest rate
which such Lender would bid were it to bid, at the commencement of such
period, for dollar deposits of a comparable amount and period from other
banks in the eurodollar market. A certificate of any Lender setting forth
any amount or amounts that such Lender is entitled to receive pursuant to
this Section shall be delivered to the Borrower and shall be conclusive
absent manifest error. The Borrower shall pay such Lender the amount shown
as due on any such certificate within 10 days after receipt thereof.
ARTICLE IV
Security
SECTION 4.1 Collateral.
To secure full and complete payment and performance of the
Obligations, the Borrower shall execute and deliver or cause to be executed
and delivered the documents described below covering the property and
collateral described in this Section 4.01 (which, together with any other
property and collateral which may now or hereafter secure the Obligations or
any part thereof, is sometimes herein called the "Collateral"):
<PAGE>
(a) The Borrower will, and will cause each of the Guarantors to,
grant to the Administrative Agent, for the benefit of the Administrative
Agent and the Lenders, a first priority security interest in all of its
accounts, accounts receivable, equipment, machinery, furniture, fixtures,
inventory, chattel paper, documents, instruments, general intangibles,
investment property, intellectual property, and Equity Interests in its
Subsidiaries, whether now owned or hereafter acquired, and all products and
proceeds thereof, pursuant to the Security Agreement; provided that not more
than 65% of the Equity Interests of any Foreign Subsidiary shall be required
to be subject to such security interest.
(b) The Borrower will, and will cause each of its Subsidiaries
to, execute and cause to be executed such further documents and instruments,
including without limitation, Uniform Commercial Code financing statements,
as the Administrative Agent, in its sole discretion, deems necessary or
desirable to evidence and perfect its Liens in the Collateral.
ARTICLE V
Representations and Warranties
The Borrower represents and warrants to the Administrative Agent
and the Lenders that:
SECTION 5.1 Organization; Powers.
Each of the Borrower and its Subsidiaries is duly organized,
validly existing and in good standing under the laws of the jurisdiction of
its organization, has all requisite power and authority to carry on its
business as now conducted and, except where the failure to do so,
individually or in the aggregate, could not reasonably be expected to result
in a Material Adverse Effect, is qualified to do business in, and is in good
standing in, every jurisdiction where because of the nature of its
activities or properties such qualification is required.
SECTION 5.2 Authorization; Enforceability.
The Transactions and the Acquisition of the Company are within the
powers of the Borrower and the Subsidiaries, respectively, and have been
duly authorized by all necessary action. This Agreement and the other Loan
Documents to which Borrower or any Guarantor is a party have been duly
executed and delivered by such Person and constitutes a legal, valid and
binding obligation of such Person, enforceable in accordance with their
respective terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other laws affecting creditors' rights
generally and subject to general principles of equity, regardless of whether
considered in a proceeding in equity or at law. The Acquisition of the
Company is within the Company's corporate powers and has been duly
authorized by all necessary action.
<PAGE>
SECTION 5.3 Governmental Approvals; No Conflicts.
Neither the Transactions nor the Acquisition of the Company
(a) require any consent or approval of, registration or filing with, or any
other action by, any Governmental Authority, except such as have been
obtained or made and are in full force and effect or failure to do so would
not have a Material Adverse Effect, (b) will violate any applicable law or
regulation or the charter, by-laws or other organizational documents of the
Borrower or any of its Subsidiaries or any order of any Governmental
Authority, other than any violation that would not have a Material Adverse
Effect, (c) will violate or result in a default under any indenture,
agreement or other instrument binding upon the Borrower or any of its
Subsidiaries, or their respective assets, or give rise to a right thereunder
to require any payment to be made by the Borrower or any of its
Subsidiaries, other than any violation that would not have a Material
Adverse Effect, and (d) will result in the creation or imposition of any
Lien on any asset of the Borrower or any of its Subsidiaries, other than
Liens created or imposed by the Transactions.
SECTION 5.4 Financial Condition; No Material Adverse Change.
(a) The Borrower has heretofore furnished to the Lenders its
consolidated balance sheet and statements of income, stockholders' equity
and cash flows as of and for the fiscal years ended December 31, 1997,
December 31, 1998 and December 31, 1999, reported on by
PricewaterhouseCoopers LLP, independent public accountants. Such financial
statements present fairly, in all material respects, the financial position
and results of operations and cash flows of the Borrower and its
consolidated Subsidiaries as of such dates and for such periods in
accordance with GAAP.
(b) Since December 31, 1998, there has been no material adverse
change in the business, assets, operations or condition, financial or
otherwise, of the Borrower and its Subsidiaries, taken as a whole.
(c) The Company has heretofore furnished to the Lenders its
consolidated balance sheet and statements of income, stockholders' equity
and cash flows (i) as of and for the fiscal years ended December 31, 1997
and December 31, 1998, reported on by Deloitte & Touche LLP, independent
public accountants and (ii) as of and for the fiscal year ended December 31,
1999, certified by its chief financial officer. Such financial statements
present fairly, in all material respects, the financial position and results
of operations and cash flows of the Company and its consolidated
subsidiaries as of such dates and for such periods in accordance with GAAP,
subject to year-end audit adjustments and the absence of footnotes in the
case of the statements referred to in clause (ii) above.
(d) Since December 31, 1998, there has been no material adverse
change in the business, assets, operations or condition, financial or
otherwise, of the Company and its subsidiaries, taken as a whole.
(e) Except as disclosed in the financial statements referred to
above or the notes thereto and except for Disclosed Matters, after giving
effect to the Transactions and the Acquisition of the Company, none of the
Borrower or its Subsidiaries has, as of the Effective Date, any material
contingent liabilities, unusual long term commitments or unrealized losses.
<PAGE>
SECTION 5.5 Properties.
(a) Each of the Borrower and its Subsidiaries has good title to,
or valid leasehold interests in, all its real and personal property material
to its business, except for minor defects in title that do not interfere
with its ability to conduct its business as currently conducted or to
utilize such properties for their intended purposes, and none of the
properties, assets or leasehold interests of the Borrower or any Subsidiary
is subject to any Lien, except as permitted by Section 8.02.
(b) Each of the Borrower and its Subsidiaries owns, or is
licensed to use, all trademarks, tradenames, copyrights, patents and other
intellectual property material to its business, and the use thereof by the
Borrower and its Subsidiaries does not infringe upon the rights of any other
Person, except for any such infringements that, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
SECTION 5.6 Litigation and Environmental Matters.
(a) There are no actions, suits or proceedings by or before any
arbitrator or Governmental Authority pending against or, to the knowledge of
the Borrower, threatened against or affecting the Borrower or any of its
Subsidiaries (i) as to which there is a reasonable possibility of an adverse
determination and that, if adversely determined, could reasonably be
expected, individually or in the aggregate, to result in a Material Adverse
Effect (other than the Disclosed Matters) or (ii) that involve this
Agreement, any of the other Loan Documents, the Acquisition of the Company
or the Transactions.
(b) Except for the Disclosed Matters and except with respect to
any other matters that, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect, neither the
Borrower nor any of its Subsidiaries (i) has failed to comply with any
Environmental Law or to obtain, maintain or comply with any permit, license
or other approval required under any Environmental Law, (ii) has become
subject to any Environmental Liability, (iii) has received notice of any
claim with respect to any Environmental Liability or (iv) knows of any basis
for any Environmental Liability.
(c) Since the date of this Agreement, there has been no change in
the status of the Disclosed Matters that, individually or in the aggregate,
has resulted in, or materially increased the likelihood of, a Material
Adverse Effect.
SECTION 5.7 Compliance with Laws and Agreements.
Each of the Borrower and its Subsidiaries is in compliance with
all laws, regulations and orders of any Governmental Authority applicable to
it or its property and all indentures, agreements and other instruments
binding upon it or its property, except where the failure to do so,
individually or in the aggregate, could not reasonably be expected to result
in a Material Adverse Effect. No Default has occurred and is continuing.
<PAGE>
SECTION 5.8 Investment and Holding Company Status.
Neither the Borrower nor any of its Subsidiaries is (a) an
"investment company" as defined in, or subject to regulation under, the
Investment Company Act of 1940 or (b) a "holding company" as defined in, or
subject to regulation under, the Public Utility Holding Company Act of 1935.
SECTION 5.9 Taxes.
Each of the Borrower and its Subsidiaries has timely filed or
caused to be filed all Tax returns and reports required to have been filed
and has paid or caused to be paid all Taxes required to have been paid by
it, except (a) Taxes that are being contested in good faith by appropriate
proceedings and for which the Borrower or such Subsidiary, as applicable,
has set aside on its books adequate reserves or (b) to the extent that the
failure to do so could not reasonably be expected to result in a Material
Adverse Effect.
SECTION 5.10 ERISA.
No ERISA Event has occurred or is reasonably expected to occur
that, when taken together with all other such ERISA Events for which
liability is reasonably expected to occur, could reasonably be expected to
result in a Material Adverse Effect. The present value of all accumulated
benefit obligations under each Plan (based on the assumptions used for
purposes of Statement of Financial Accounting Standards No. 87) did not, as
of the date of the most recent financial statements reflecting such amounts,
exceed by more than $1,000,000 the fair market value of the assets of such
Plan, and the present value of all accumulated benefit obligations of all
underfunded Plans (based on the assumptions used for purposes of Statement
of Financial Accounting Standards No. 87) did not, as of the date of the
most recent financial statements reflecting such amounts, exceed by more
than $1,000,000 the fair market value of the assets of all such underfunded
Plans.
SECTION 5.11 Disclosure.
The Borrower has disclosed to the Lenders all agreements,
instruments and corporate or other restrictions to which it, any of its
Subsidiaries is subject, and all other matters known to it, that,
individually or in the aggregate, could reasonably be expected to result in
a Material Adverse Effect. None of the reports, financial statements,
certificates or other information furnished by or on behalf of the Borrower
to the Administrative Agent or any Lender in connection with the negotiation
of this Agreement or delivered hereunder (as modified or supplemented by
other information so furnished) contains any material misstatement of fact
or omits to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided that, with respect to projected financial information,
the Borrower represents only that such information was prepared in good
faith based upon assumptions believed to be reasonable at the time.
<PAGE>
SECTION 5.12 Year 2000.
The Year 2000 date change has not resulted in disruption of the
Borrower's and its Subsidiaries' computer hardware, software, databases,
systems and other equipment containing embedded microchips (including
systems and equipment supplied by others or with which the Borrower's or its
Subsidiaries' systems interface), or to the Borrower's or its Subsidiaries'
operations or business systems, or to the best of the Borrower's or its
Subsidiaries' knowledge, to the operations or business systems of the
Borrower's major vendors, customers, suppliers and counterparties. Borrower
has no reason to believe that liabilities and expenditures related to the
Year 2000 date-change (including, without limitation, costs caused by
reprogramming errors, the failure of others' systems or equipment, and the
potential liability, if any, of the Borrower or its Subsidiaries for
Year 2000 related costs incurred or disruption experienced by others) will
result in a Default or a Material Adverse Effect.
SECTION 5.13 Indebtedness.
The Borrower and its Subsidiaries have no Indebtedness, except as
disclosed on Schedule 8.01 or otherwise permitted by Section 8.01.
SECTION 5.14 Subsidiaries.
The Borrower has no Subsidiaries other than those listed on
Schedule 5.14 hereto, and Schedule 5.14 sets forth the jurisdiction of
organization of each Subsidiary and the percentage of the Borrower's or any
Subsidiary's ownership of the outstanding voting stock or other ownership or
Equity Interests of each Subsidiary and designates the Subsidiaries as of
the Effective Date. All of the outstanding Equity Interests of each
Subsidiary have been validly issued, is fully paid, and is nonassessable.
The Borrower shall, from time to time as necessary, deliver to the
Administrative Agent an updated Schedule 5.14 to this Agreement, together
with a certificate of an authorized officer of the Borrower certifying that
the information set forth in such schedule is true, correct and complete as
of such date.
SECTION 5.15 Inventory.
All inventory of the Borrower and its Subsidiaries has been and
will hereafter be produced in compliance with all applicable laws, rules,
regulations, and governmental standards, including, without limitation, the
minimum wage and overtime provisions of the Fair Labor Standards Act, as
amended (29 U.S.C. '' 201-219), and the regulations promulgated thereunder,
except any noncompliance that does not have a Material Adverse Effect.
<PAGE>
SECTION 5.16 Patents, Trademarks and Copyrights.
Schedule 5.16 sets forth a true, accurate and complete listing, as
of the date hereof, of all patents, trademarks and copyrights, and
applications therefor, of the Borrower and its Subsidiaries. Except as
created or permitted under the Loan Documents, no Lien exists with respect
to the interests of the Borrower or any Subsidiary in any such patents,
trademarks, copyrights or applications, and neither the Borrower nor any
Subsidiary has transferred or subordinated any interest it may have in such
patents, trademarks, copyrights and applications. The Borrower shall, from
time to time as necessary, deliver to the Administrative Agent an updated
Schedule 5.16 to this Agreement, together with a certificate of an
authorized officer of the Borrower certifying that the information set forth
on such schedule is true, correct and complete as of such date. Upon the
request of the Administrative Agent at any time, the Borrower shall execute
and deliver and cause to be executed and delivered assignments of all
patents, trademarks, copyrights and applications therefor included in the
Collateral, in favor of the Administrative Agent for the benefit of the
Administrative Agent and the Lenders, which assignments shall be in form and
substance satisfactory to the Administrative Agent and in proper form
(i) for recording in the U.S. Patent and Trademark Office to properly
reflect the Administrative Agent's security interest in all U.S. patents,
trademarks and applications therefor included in the Collateral and (ii) for
recording with the U.S. Library of Congress to properly reflect the
Administrative Agent's security interest in all U.S. copyrights and
applications therefor included in the Collateral.
SECTION 5.17 Margin Securities.
Neither the Borrower nor any of its Subsidiaries is engaged
principally, or as one of its important activities, in the business of
extending credit for the purpose of purchasing or carrying any "margin
stock" within the meaning of Regulation T, U or X of the Board, as amended.
No part of the proceeds of any Borrowing will be used, directly or
indirectly, to purchase or carry any margin stock or to extend credit to
others for the purpose of purchasing or carrying margin stock.
SECTION 5.18 Labor Matters.
Except for any of the following that would not have a Material
Adverse Effect, (a) there are no actual or threatened strikes, labor
disputes, slow downs, walkouts, work stoppages, or other concerted
interruptions of operations that involve any employees employed at any time
in connection with the business activities or operations at any of the
Borrower's or its Subsidiaries' locations, (b) hours worked by and payment
made to the employees of the Borrower or its Subsidiaries have not been in
violation of the Fair Labor Standards Act or any other applicable laws,
rules and regulations pertaining to labor matters, (c) all payments due from
the Borrower or its Subsidiaries for employee health and welfare insurance,
including, without limitation, workers' compensation insurance, have been
paid or accrued as a liability on its books, (d) the business activities and
operations of the Borrower and its Subsidiaries are in compliance with the
Occupational Safety and Health Act of 1970, 29 U.S.C. ' 651 et seq. and
other applicable health and safety laws, rules and regulations.
<PAGE>
SECTION 5.19 Solvency.
On the Effective Date and on the date of each Borrowing, the
Borrower and each of its Subsidiaries are, and after giving effect to the
Transactions, the Acquisition of the Company and the requested Borrowing,
will be, Solvent.
SECTION 5.20 Burdensome Agreements.
Neither the Borrower nor any of its Subsidiaries are a party to
any agreements which contain any unusual or burdensome provisions which are
reasonably likely to result in a Material Adverse Effect.
ARTICLE VI
Conditions
SECTION 6.1 Effective Date.
The obligations of the Lenders to make Loans hereunder shall not
become effective until the date on which the Administrative Agent (or its
counsel) has received (or waived in accordance with Section 12.02) each of
the following, in form and substance satisfactory to the Administrative
Agent:
(a) Credit Agreement. Either (i) a counterpart of this Agreement
signed on behalf of each party hereto or (ii) written evidence satisfactory
to the Administrative Agent (which may include telecopy transmission of a
signed signature page of this Agreement) that such party has signed a
counterpart of this Agreement.
(b) Resolutions. Such documents and certificates as the
Administrative Agent or its counsel may reasonably request relating to the
organization, existence and good standing of the Borrower and its
Subsidiaries (including the Company and its subsidiaries), the authorization
of the Transactions and the Acquisition of the Company, and any other legal
matters relating to the Borrower, its Subsidiaries, the Company or its
subsidiaries, the Loan Documents or the Transactions or the Acquisition of
the Company, all in form and substance satisfactory to the Administrative
Agent and its counsel.
(c) Corporate Structure. Evidence of the Borrower's corporate
and subsidiary structure, which evidence and structure shall be
satisfactory to the Administrative Agent in its reasonable judgment.
(d) Governmental and Third Party Approvals. All governmental
and third-party approvals necessary or advisable, in the reasonable judgment
of the Administrative Agent, in connection with the Loans and in connection
with the continuing operations of each of the Borrower, its Subsidiaries and
the Company.
(e) Financial Statements. The financial statements specified in
Section 5.04, which shall be satisfactory to the Administrative Agent in its
reasonable judgment.
<PAGE>
(f) Reports and Opinions. An independent auditor's most recent
management letter and unqualified report and opinion on the Borrower's
financial statements.
(g) Notes. The Notes executed by the Borrower.
(h) Security Agreement. The Security Agreement executed by the
Borrower and the Guarantors.
(i) Financing Statements. Uniform Commercial Code financing
statements executed by the Borrower and the Guarantors and covering the
Collateral.
(j) Equity Interests. The original certificates representing the
Equity Interests included in the Collateral, together with transfer powers
duly executed in blank by the Borrower.
(k) Instruments and Chattel Paper. The originals of any and all
instruments and chattel paper included in the Collateral, including without
limitation, all promissory notes evidencing all intercompany Indebtedness
owed to Borrower or any Guarantor by Borrower or any Subsidiary, each
endorsed to the order of the Administrative Agent.
(l) Intellectual Property Documentation. Documentation
satisfactory to the Administrative Agent, executed by the appropriate
parties, (i) for recording in the U.S. Patent and Trademark Office to
properly reflect the Administrative Agent's security interest in all U.S.
patents, trademarks and applications therefor of the Borrower and the
Guarantors, and (ii) for recording with the United States Library of
Congress to properly reflect the Administrative Agent's security interest in
all U.S. copyrights and applications therefor of the Borrower and the
Guarantors.
(m) Guaranty. The Guaranty executed by each Guarantor.
(n) Contribution and Indemnification Agreement. The Contribution
and Indemnification Agreement executed by the Borrower and each Guarantor.
(o) Landlord and Mortgagee Waivers or Subordinations. Landlord
and mortgagee waivers or subordinations in form and substance satisfactory
to the Administrative Agent executed by each landlord and mortgagee of any
real property located in the United States where any of the Collateral is
located, as well as any other agreements of third parties in possession of
any of the Collateral as the Administrative Agent may reasonably require.
(p) Insurance Policies. Certificate(s) of insurance evidencing
all insurance policies required by Section 7.07, together with loss payable
endorsements (where applicable) in favor of the Administrative Agent, for
the benefit of the Administrative Agent and the Lenders, with respect to
all insurance policies covering Collateral.
(q) Lien Searches. The results of UCC, tax and judgment lien
searches showing all financing statements, other documents or instruments
and tax and judgment liens on file against each of the Borrower, the
Subsidiaries and the Company in such jurisdictions as the Administrative
Agent may require, such searches to be as of a date no more than ten (10)
days prior to the Effective Date.
<PAGE>
(r) Opinion of Counsel. A favorable written opinion (addressed to
the Administrative Agent and the Lenders and dated the Effective Date) of
Locke, Liddell & Sapp, counsel for the Borrower and the Subsidiaries, in
form and substance satisfactory to the Administrative Agent, as to the
matters specified on Exhibit "F" hereto and such other matters relating to
the Borrower, this Agreement, the other Loan Documents or the Transactions
as the Administrative Agent shall reasonably request, provided that opinions
regarding matters relating to the Company and its Subsidiaries shall be
given by Ric Floyd, in house counsel for the Borrower and the Subsidiaries
pursuant to a favorable written opinion in form and substance satisfactory
to the Administrative Agent. The Borrower hereby requests such counsel to
deliver such opinions.
(s) Indebtedness. All terms of the Material Indebtedness of the
Borrower, its Subsidiaries, and the Company, which shall be satisfactory to
the Lenders, and all requisite consents, approvals and amendments relating
to such Material Indebtedness, which shall be in form and substance
satisfactory to the Administrative Agent.
(t) Compliance Certificate. An initial Compliance Certificate,
dated the Effective Date and signed by a Financial Officer of the Borrower,
confirming compliance with the conditions set forth in paragraphs (a), (b)
and (c) of Section 6.02 and showing compliance as of December 31, 1999 with
the financial covenants set forth in Article IX, on a pro forma basis as
though the Acquisition of the Company has been completed.
(u) Solvency Certificates. Certificates, dated the Effective
Date and signed by a Financial Officer of the Borrower, each of the
Subsidiaries, and the Company, certifying as to the Solvency of the
Borrower, each of the Subsidiaries and the Company as of the Effective Date
and after giving effect to the Transactions and the Acquisition of the
Company.
(v) Fees and Expenses. All fees and other amounts due and
payable on or prior to the Effective Date, including to the extent invoiced,
reimbursement or payment of all reasonable attorneys' fees and out-of-pocket
expenses required to be reimbursed or paid by the Borrower hereunder.
(w) Acquisition Documents. Copies of the Acquisition Documents
and all certificates, opinions and other documents delivered thereunder,
certified by a Financial Officer as complete and correct, and all consents
and approvals required to be obtained from any Governmental Authority or
other Person in connection with the Acquisition. All applicable waiting
periods and appeal periods shall have expired, in each case without the
imposition of any burdensome conditions. The Acquisition shall have been,
or substantially simultaneously with the initial funding of Loans on the
Effective Date shall be, consummated in accordance with the Acquisition
Documents and applicable law, without any amendment to or waiver of any
material terms or conditions of the Acquisition Documents not approved by
the Required Lenders.
(x) Liens. All existing Liens on any assets of the Borrower and
its Subsidiaries, and of the Company and its subsidiaries, including,
without limitation, Liens of Imperial Bank, shall be terminated and/or
released.
<PAGE>
(y) Additional Documentation. Such additional documents and
certificates as the Administrative Agent or its counsel may reasonably
request relating to the organization, existence and good standing of each of
the Borrower, the Subsidiaries, and the Company, the authorization of the
Transactions and the Acquisition of the Company, and any other legal matters
relating to the Borrower, the Subsidiaries, the Company, this Agreement, the
Acquisition of the Company, or the Transactions, all in form and substance
satisfactory to the Administrative Agent and its counsel.
The Administrative Agent shall notify the Borrower and the Lenders of the
Effective Date, and such notice shall be conclusive and binding.
SECTION 6.2 Each Credit Event.
The obligation of each Lender to make a Loan on the occasion of
any Borrowing is subject to the satisfaction of the following conditions:
(a) Representations and Warranties. The representations and
warranties of the Borrower set forth in this Agreement and the other Loan
Documents shall be true and correct on and as of the date of such Borrowing.
(b) No Default. At the time of and immediately after giving
effect to such Borrowing, no Default shall have occurred and be continuing.
(c) Material Adverse Effect. No event, development or
circumstance has occurred or exists that has had or could reasonably be
expected to have a Material Adverse Effect.
(d) Borrowing Request Form. With respect to any Borrowing, the
Administrative Agent shall have received, in accordance with Section 2.03, a
Borrowing Request Form, dated the date of such Borrowing, executed by an
authorized officer of the Borrower.
(e) Additional Documentation. The Administrative Agent shall
have received such additional approvals, opinions, or documents as the
Administrative Agent or its legal counsel may reasonably request.
Each Borrowing shall be deemed to constitute a representation and warranty
by the Borrower on the date thereof as to the matters specified in
paragraphs (a), (b) and (c) of this Section.
ARTICLE VII
Affirmative Covenants
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees payable hereunder shall
have been paid in full, the Borrower covenants and agrees with the
Administrative Agent and the Lenders that:
SECTION 7.1 Financial Statements and Other Information.
The Borrower will furnish to the Administrative Agent and each
Lender:
<PAGE>
(a) within 90 days after the end of each fiscal year of the
Borrower, its audited consolidated balance sheet and related statements
of operations, stockholders' equity and cash flows as of the end of and
for such year, setting forth in each case in comparative form the
figures for the previous fiscal year, all reported on by
PricewaterhouseCoopers LLP or other independent public accountants of
recognized national standing (without a "going concern" or like
qualification or exception and without any qualification or exception
as to the scope of such audit) to the effect that such consolidated
financial statements present fairly in all material respects the
financial condition and results of operations of the Borrower and its
consolidated Subsidiaries on a consolidated basis in accordance with
GAAP consistently applied;
(b) within 45 days after the end of each of the first three
fiscal quarters of each fiscal year of the Borrower, its consolidated
balance sheet and related statements of operations, stockholders'
equity and cash flows as of the end of and for such fiscal quarter and
the then elapsed portion of the fiscal year, setting forth in each case
in comparative form the figures for the corresponding period or periods
of (or, in the case of the balance sheet, as of the end of) the
previous fiscal year, all certified by one of its Financial Officers as
presenting fairly in all material respects the financial condition and
results of operations of the Borrower and its consolidated Subsidiaries
on a consolidated basis in accordance with GAAP consistently applied,
subject to normal year-end audit adjustments and the absence of
footnotes;
(c) concurrently with any delivery of financial statements under
clause (a) or (b) above, a Compliance Certificate of a Financial
Officer of the Borrower (i) certifying as to whether a Default has
occurred and, if a Default has occurred, specifying the details thereof
and any action taken or proposed to be taken with respect thereto,
(ii) setting forth reasonably detailed calculations demonstrating
compliance with the financial covenants set forth herein and
(iii) stating whether any change in GAAP or in the application thereof
has occurred since the date of the audited financial statements
referred to in Section 5.04 and, if any such change has occurred,
specifying the effect of such change on the financial statements
accompanying such certificate;
(d) concurrently with any delivery of financial statements under
clause (a) above, a certificate of the accounting firm that reported on
such financial statements stating whether they obtained knowledge
during the course of their examination of such financial statements of
any Default (which certificate may be limited to the extent required by
accounting rules or guidelines);
(e) promptly after the same become publicly available, copies of
all periodic and other reports, proxy statements and other materials
filed by the Borrower or any Subsidiary with the Securities and
Exchange Commission, or any Governmental Authority succeeding to any or
all of the functions of said Commission, or with any national
securities exchange, or distributed by the Borrower to its shareholders
generally, as the case may be; and
<PAGE>
(f) promptly following any request therefor, such projections,
budgets and other information regarding the operations, business
affairs and financial condition of the Borrower or any Subsidiary, or
compliance with the terms of this Agreement and the other Loan
Documents, as the Administrative Agent may reasonably request.
SECTION 7.2 Notices of Material Events.
The Borrower will furnish to the Administrative Agent and each
Lender prompt written notice of the following:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or proceeding
by or before any arbitrator or Governmental Authority against or
affecting the Borrower or any Affiliate thereof that, if adversely
determined, could reasonably be expected to result in a Material
Adverse Effect;
(c) the occurrence of any ERISA Event that, alone or together
with any other ERISA Events that have occurred, could reasonably be
expected to result in liability of the Borrower and its Subsidiaries in
an aggregate amount exceeding $1,000,000; and
(d) any other development that results in, or could reasonably be
expected to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a statement
of a Financial Officer or other executive officer of the Borrower setting
forth the details of the event or development requiring such notice and any
action taken or proposed to be taken with respect thereto.
SECTION 7.3 Existence; Conduct of Business.
The Borrower will, and will cause each of its Subsidiaries to, do
or cause to be done all things necessary to preserve, renew and keep in full
force and effect its legal existence and the rights, licenses, permits,
privileges, agreements and franchises material to the conduct of its
business; provided that the foregoing shall not prohibit any merger,
consolidation, liquidation or dissolution permitted under Section 8.03.
SECTION 7.4 Payment of Obligations.
The Borrower will, and will cause each of its Subsidiaries to, pay
its obligations, including Tax liabilities, that, if not paid, could result
in a Material Adverse Effect or become a Lien on any of its property, before
the same shall become delinquent or in default, except where (a) the
validity or amount thereof is being contested in good faith by appropriate
proceedings, (b) the Borrower or such Subsidiary has set aside on its books
adequate reserves with respect thereto in accordance with GAAP and (c) the
failure to make payment pending such contest could not reasonably be
expected to result in a Material Adverse Effect.
SECTION 7.5 Maintenance of Properties.
The Borrower will, and will cause each of its Subsidiaries to
keep, maintain and preserve all property (tangible and intangible) material
to the conduct of its business in good working order and condition, ordinary
wear and tear excepted.
<PAGE>
SECTION 7.6 Books and Records; Inspection Rights.
The Borrower will, and will cause each of its Subsidiaries to,
keep proper books of record and account in which full, true and correct
entries are made of all dealings and transactions in relation to its
business and activities. The Borrower will, and will cause each of its
Subsidiaries to, permit any representatives designated by the Administrative
Agent or any Lender, upon reasonable prior notice, to visit and inspect its
properties, to examine and make extracts from its books and records, and to
discuss its affairs, finances and condition with its officers and
independent accountants, all at such reasonable times and as often as
reasonably requested.
SECTION 7.7 Insurance.
The Borrower will maintain, and will cause each of the
Subsidiaries to maintain, insurance with financially sound and reputable
insurance companies in such amounts and covering such risks as is usually
carried by corporations engaged in similar businesses and owning similar
properties in the same general areas in which the Borrower and the
Subsidiaries operate, provided that in any event the Borrower will maintain
and cause each Subsidiary to maintain workers' compensation insurance,
property insurance, comprehensive general liability insurance, products
liability insurance, and business interruption insurance reasonably
satisfactory to the Lenders. Each property insurance policy covering
Collateral shall name the Administrative Agent as loss payee for the benefit
of the Lenders and shall provide that such policy will not be canceled or
reduced without thirty (30) days' prior written notice to the Administrative
Agent.
SECTION 7.8 Compliance with Laws.
The Borrower will, and will cause each of its Subsidiaries to, and
with respect to ERISA will cause each of its ERISA Affiliates to, comply
with all laws, rules, regulations and orders of any Governmental Authority
applicable to it or its property, except where the failure to do so,
individually or in the aggregate, could not reasonably be expected to result
in a Material Adverse Effect.
SECTION 7.9 Use of Proceeds.
The proceeds of the Loans will be used only for general corporate
purposes of the Borrower and its Subsidiaries, including the refinancing of
the Indebtedness of the Company in connection with the Acquisition of the
Company and other Acquisitions permitted by this Agreement. No part of the
proceeds of any Loan will be used, whether directly or indirectly, for any
purpose that entails a violation of any of the Regulations of the Board,
including Regulations T, U and X.
SECTION 7.10 Compliance with Agreements.
The Borrower will comply, and will cause each Subsidiary to
comply, in all material respects with all agreements, contracts, and
instruments binding on it or affecting its properties or business.
<PAGE>
SECTION 7.11 Additional Subsidiaries.
If any additional Subsidiary is formed or acquired after the
Effective Date, the Borrower will notify the Administrative Agent and the
Lenders thereof and (a) the Borrower will cause such Subsidiary (except any
Foreign Subsidiary) to become a Guarantor within three Business Days after
such Subsidiary is formed or acquired and promptly take such actions to
create and perfect Liens on such Subsidiary's assets to secure the
Obligations as the Administrative Agent or the Required Lenders shall
reasonably request and (b) if any Equity Interest in or Indebtedness of such
Subsidiary are owned by or on behalf of the Borrower or any Guarantor, the
Borrower will cause such Equity Interests and promissory notes evidencing
such Indebtedness to be pledged to the Administrative Agent and the Lenders
within three Business Days after such Subsidiary is formed or acquired
(except that, if such Subsidiary is a Foreign Subsidiary, shares of common
stock of such Subsidiary to be pledged may be limited to 65% of the
outstanding shares of common stock of such Subsidiary).
SECTION 7.12 Real Property.
Upon acquisition of any ownership interest in real property by the
Borrower or any Subsidiary, the Borrower will, and will cause each such
Subsidiary to, execute and deliver to the Administrative Agent such
documents as the Administrative Agent may require, granting a first priority
lien to the Administrative Agent for the benefit of the Lenders on such real
property and all improvements and other property, rights and interests
located thereon or related thereto, which documents shall be in form and
substance satisfactory to the Administrative Agent, together with evidence
of the recordation thereof and such title insurance policies, surveys,
appraisals, environmental reports, certificates, instruments and legal
opinions requested by the Administrative Agent in connection therewith.
SECTION 7.13 Further Assurances.
The Borrower will, and will cause each Subsidiary to, execute and
deliver such further agreements and instruments and take such further action
as may be requested by the Administrative Agent to carry out the provisions
and purposes of this Agreement and the other Loan Documents and to create,
preserve, and perfect the Liens of the Administrative Agent, for the benefit
of the Administrative Agent and the Lenders, in the Collateral.
ARTICLE VIII
Negative Covenants
Until the Commitments have expired or terminated and the principal
of and interest on each Loan and all fees payable hereunder have been paid
in full, the Borrower covenants and agrees with the Administrative Agent and
the Lenders that:
SECTION 8.1 Indebtedness.
The Borrower will not, and will not permit any Subsidiary to,
create, incur, assume or permit to exist any Indebtedness, except:
(a) Indebtedness created hereunder;
<PAGE>
(b) Indebtedness existing on the date hereof and set forth in
Schedule 8.01, and extensions, renewals and replacements of any such
Indebtedness that do not increase the outstanding principal amount
thereof or result in an earlier maturity date;
(c) Indebtedness of the Borrower to any Guarantor and of any
Subsidiary to the Borrower or any other Subsidiary that is a Guarantor;
(d) Guarantees by the Borrower of Indebtedness of any Subsidiary
and by any Subsidiary of Indebtedness of the Borrower or any other
Subsidiary;
(e) Capital Lease Obligations, provided that no Default exists or
results therefrom;
(f) purchase money Indebtedness of the Borrower or any Subsidiary
representing the purchase price of equipment, that is secured by the
asset purchased, provided that (i) the principal amount of such
Indebtedness does not exceed the purchase price of the equipment
acquired, (ii) the Lien does not attach to any other assets of the
Borrower or any Subsidiary, and (iii) no Default exists or results
therefrom;
(g) the Subordinated Debt in a principal amount not to exceed
$20,000,000;
(h) Hedging Agreements permitted by Section 8.05; and
(i) other unsecured Indebtedness in an aggregate principal amount
not exceeding $1,000,000 at any time outstanding, provided that no
Default exists or results therefrom.
SECTION 8.2 Liens.
The Borrower will not, and will not permit any Subsidiary to,
create, incur, assume or permit to exist any Lien on any property or
asset now owned or hereafter acquired by it, or assign or sell any
income or revenues (including accounts receivable) or rights in respect
of any thereof, except:
(a) Permitted Encumbrances;
(b) any Lien on any property or asset of the Borrower or any
Subsidiary existing on the date hereof and set forth in Schedule 8.02;
provided that (i) such Lien shall not apply to any other property or
asset of the Borrower or any Subsidiary and (ii) such Lien shall secure
only those obligations which it secures on the date hereof and
extensions, renewals and replacements thereof that do not increase the
outstanding principal amount thereof;
(c) Liens permitted by clauses (e) and (f) of Section 8.01; and
(d) Liens created under the Loan Documents.
<PAGE>
SECTION 8.3 Fundamental Changes.
(a) The Borrower will not, and will not permit any Subsidiary to,
merge into or consolidate with any other Person, or permit any other
Person to merge into or consolidate with it, or liquidate or dissolve,
except that, if at the time thereof and immediately after giving effect
thereto no Default shall have occurred and be continuing (i) any
Subsidiary may merge into the Borrower in a transaction in which the
Borrower is the surviving corporation, (ii) any Subsidiary that is not
a Guarantor may merge into any Subsidiary in a transaction in which
the surviving entity is a Subsidiary, (iii) any Guarantor may be
dissolved, liquidated or merged into another Subsidiary, so long as
such dissolution, liquidation or merger results in all assets of such
Guarantor being owned by the Borrower or another Guarantor, (iv) any
Subsidiary that is not a Guarantor may liquidate or dissolve if the
Borrower determines in good faith that such liquidation or dissolution
is in the best interests of the Borrower and is not materially
disadvantageous to the Lenders and so long as such liquidation or
dissolution results in all assets of such Subsidiary being owned by the
Borrower or another Subsidiary, and (v) any Person that is not a
Subsidiary may merge into the Borrower in a transaction in which the
Borrower is the surviving corporation or into any Subsidiary in a
transaction in which the surviving entity is a Subsidiary; provided
that any such merger involving a Person that is not a wholly-owned
Subsidiary immediately prior to such merger shall not be permitted
unless (x) such merger is also permitted by Section 8.04 and (y) such
merger does not result in and is not part of a transaction or series of
transactions that result in a Change in Control.
(b) The Borrower will not, and will not permit any of its
Subsidiaries to, engage to any material extent in any business other
than businesses of the type conducted by the Borrower and its
Subsidiaries on the date of execution of this Agreement and businesses
reasonably related thereto.
SECTION 8.4 Investments, Loans, Advances, Guarantees and
Acquisitions.
The Borrower will not, and will not permit any of its Subsidiaries
to, purchase, hold or acquire (including pursuant to any merger with any
Person that was not a wholly owned Subsidiary prior to such merger) any
Equity Interests, evidences of indebtedness or other securities (including
any option, warrant or other right to acquire any of the foregoing) of, make
or permit to exist any loans or advances to, Guarantee any obligations of,
or make or permit to exist any investment or any other interest in, any
other Person, or purchase or otherwise acquire (in one transaction or a
series of transactions) all or substantially all of the assets of any other
Person or any assets of any other Person constituting a business unit or
division, except:
(a) Permitted Investments;
(b) Equity Interests existing on the date hereof in the
Subsidiaries;
(c) loans or advances made by the Borrower to any Guarantor and
made by any Subsidiary to the Borrower or any other Subsidiary that is
a Guarantor;
<PAGE>
(d) the Acquisition of the Company;
(e) Guarantees constituting Indebtedness permitted by
Section 8.01; and
(f) Acquisitions of Persons engaged in business of the type
conducted by the Borrower and the Subsidiaries on the date of execution
of this Agreement and businesses reasonably related thereto, provided
that (i) the total cash and non-cash consideration paid and
Indebtedness assumed or incurred by Borrower or any Subsidiary for all
of such Acquisition(s) (excluding the Acquisition of the Company) shall
not exceed $20,000,000 in the aggregate, and (ii) at the time of any
such Acquisition, no Default exists or would result or is projected to
result from any such Acquisition.
SECTION 8.5 Hedging Agreements.
The Borrower will not, and will not permit any of its Subsidiaries
to, enter into any Hedging Agreement; provided, however, that Borrower and
its Subsidiaries shall be permitted to enter into Hedging Agreements in the
ordinary course of business to hedge or mitigate risks to which the Borrower
or any Subsidiary is exposed in the conduct of its business or the
management of its liabilities, so long as (a) no Default exists, (b) such
Hedging Agreements shall have a term of less than 90 days, and (c) the
aggregate amount of the obligations of Borrower and its Subsidiaries in
respect of any and all Hedging Agreements having a term of 90 days or
longer, determined in accordance with clause (m) of the definition of
"Indebtedness" set forth in Section1.01, shall not exceed $2,000,000.
SECTION 8.6 Restricted Payments; Certain Payments of Indebtedness.
(a) The Borrower will not, and will not permit any of its
Subsidiaries to, declare or make, or agree to pay or make, directly or
indirectly, any Restricted Payment or incur any obligation, (contingent
or otherwise) to do so, except (a) the Borrower may declare and pay
dividends with respect to its capital stock payable solely in
additional shares of its common stock and (b) Subsidiaries may declare
and pay dividends to the Borrower or any Guarantor.
(b) The Borrower will not, and will not permit any Subsidiary to,
make or agree to pay or make, directly or indirectly, any payment or
other distribution (whether in cash securities or other property) of or
in respect of principal of or interest on any Indebtedness, or any
payment or other distribution (whether in cash, securities or other
property), including any sinking fund or similar deposit, on account of
the purchase, redemption, retirement, acquisition, cancellation or
termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan Documents;
(ii) payment of regularly scheduled interest and principal
payments as and when due in respect of any Indebtedness, other than
payments in respect of the Subordinated Debt prohibited by the
subordination provisions thereof;
(iii) refinancings of Indebtedness to the extent permitted by
Section 8.01; and
<PAGE>
(iv) payment of secured Indebtedness that becomes due as a result
of the voluntary sale or transfer of the property or assets securing
such Indebtedness.
SECTION 8.7 Transactions with Affiliates
The Borrower will not, and will not permit any of its Subsidiaries
to, sell, lease or otherwise transfer any property or assets to, or
purchase, lease or otherwise acquire any property or assets from, or
otherwise engage in any other transactions with, any of its Affiliates,
except as permitted in Section 8.03 and except (a) in the ordinary course of
business at prices and on terms and conditions not less favorable to the
Borrower or such Subsidiary than could be obtained on an arm's-length basis
from unrelated third parties, (b) transactions between or among the Borrower
and the Guarantors not involving any other Affiliate and (c) any Restricted
Payment permitted by Section 8.06.
SECTION 8.8 Restrictive Agreements.
The Borrower will not, and will not permit any of its Subsidiaries
to, directly or indirectly, enter into, incur or permit to exist any
agreement or other arrangement that prohibits, restricts or imposes any
condition upon (a) the ability of the Borrower or any Subsidiary to create,
incur or permit to exist any Lien upon any of its property or assets, or
(b) the ability of any Subsidiary to pay dividends or other distributions
with respect to any shares of its capital stock or to make or repay loans or
advances to the Borrower or any other Subsidiary or to Guarantee
Indebtedness of the Borrower or any other Subsidiary; provided that (i) the
foregoing shall not apply to restrictions and conditions imposed by law or
by any Loan Document, (ii) the foregoing shall not apply to restrictions and
conditions existing on the date hereof identified on Schedule 8.08 (but
shall apply to any extension or renewal of, or any amendment or modification
expanding the scope of, any such restriction or condition), (iii) the
foregoing shall not apply to customary restrictions and conditions contained
in agreements relating to the sale of a Subsidiary pending such sale,
provided such restrictions and conditions apply only to the Subsidiary that
is to be sold and such sale is permitted hereunder, (iv) clause (a) of the
foregoing shall not apply to restrictions or conditions imposed by any
agreement relating to secured Indebtedness permitted by this Agreement if
such restrictions or conditions apply only to the property or assets
securing such Indebtedness and (v) clause (a) of the foregoing shall not
apply to customary provisions in leases and other contracts restricting the
assignment thereof.
SECTION 8.9 Disposition of Assets.
Except as otherwise permitted in Section 8.03, the Borrower will
not and will not permit any Subsidiary to sell, lease, assign, transfer, or
otherwise dispose of any of their respective assets (including without
limitation stock or other Equity Interests in any of the Subsidiaries or any
of the voting rights of any such stock or other Equity Interests); provided,
however, that the following dispositions shall be permitted so long as the
Borrower and the Subsidiaries, as applicable, receive full, fair and
reasonable consideration at the time of such disposition at least equal to
the fair market value of such asset being disposed:
(a) dispositions of inventory in the ordinary course of business
of the Borrower and its Subsidiaries;
<PAGE>
(b) sales, transfers and other dispositions to the Borrower or
any wholly-owned Subsidiary that is a Guarantor; and
(c) disposition of assets that are worn out, obsolete or no
longer used or useful in the conduct of the business of the Borrower
and the Subsidiaries, so long as such assets are replaced with assets
of equal or greater value.
SECTION 8.10 Sale and Leaseback.
The Borrower will not enter into, and will not permit any
Subsidiary to enter into, any arrangement with any Person pursuant to which
it leases from such Person real or personal property that has been or is to
be sold or transferred, directly or indirectly, by it to such Person.
SECTION 8.11 Accounting.
The Borrower will not, and will not permit any of its Subsidiaries
to, change its fiscal year or make any change (a) in accounting treatment or
reporting practices, except as required by GAAP and disclosed to the
Administrative Agent, or (b) in tax reporting treatment, except as required
by law and disclosed to the Administrative Agent.
SECTION 8.12 Amendment of Material Documents.
The Borrower will not, and will not permit any Subsidiary to,
amend, modify or waive any of its rights under (a) any Subordinated Debt
document or (b) its certificate of incorporation, by-laws or other
organizational documents, unless such amendment, modification or waiver
under its certificate of incorporation, by-laws or other organizational
documents would not create a Material Adverse Effect.
SECTION 8.13 Preferred Equity Interests.
The Borrower will not, and will not permit any Subsidiary to,
issue any preferred stock or other preferred Equity Interests.
ARTICLE IX
Financial Covenants
Until the Commitments have expired or been terminated and the principal
of and interest on each Loan and all fees payable hereunder shall have been
paid in full, the Borrower covenants and agrees with the Administrative
Agent and the Lenders that:
SECTION 9.1 Consolidated Leverage Ratio
The Borrower will at all times maintain or cause to be maintained
a Consolidated Leverage Ratio of not greater than 2.00 to 1.00.
SECTION 9.2 Consolidated Fixed Charge Coverage Ratio.
The Borrower will at all times maintain or cause to be maintained
a Consolidated Fixed Charge Coverage Ratio of not less than 3.00 to 1.00.
<PAGE>
SECTION 9.3 Liquidity.
The Borrower will, and will cause its Subsidiaries to, at all
times maintain Consolidated Liquidity in an amount not less than
$10,000,000.
ARTICLE X
Events of Default
SECTION 10.1 Default.
If any of the following Events of Default shall occur:
(a) the Borrower shall fail to pay any principal of any Loan when
and as the same shall become due and payable, whether at the due date
thereof or at a date fixed for prepayment thereof or otherwise;
(b) the Borrower shall fail to pay any interest on any Loan or
any fee or any other amount (other than an amount referred to in
clause (a) of this Section) payable under this Agreement, when and as
the same shall become due and payable, and such failure shall continue
unremedied for a period of five Business Days;
(c) any representation or warranty made or deemed made by or on
behalf of the Borrower or any Subsidiary in or in connection with this
Agreement or any other Loan Document or any amendment or modification
hereof or thereof or waiver hereunder or thereunder, or in any report,
certificate, financial statement or other document furnished pursuant
to or in connection with this Agreement or any other Loan Document or
any amendment or modification hereof or thereof or waiver hereunder or
thereunder, shall prove to have been incorrect when made or deemed
made;
(d) the Borrower shall fail to observe or perform any covenant,
condition or agreement contained in Section 7.02 or 7.03 (with respect
to the Borrower's existence) or 7.09 or in Article VIII or in
Article IX;
(e) the Borrower shall fail to observe or perform any covenant,
condition or agreement contained in this Agreement (other than those
specified in clause (a), (b) or (d) of this Section), and such failure
shall continue unremedied for a period of 30 days after the earlier of
notice thereof from the Administrative Agent to the Borrower (which
notice will be given at the request of any Lender or the Borrower's or
any Subsidiary's actual knowledge of such failure);
(f) the Borrower or any Subsidiary shall fail to make any payment
(whether of principal or interest and regardless of amount) in respect
of any Material Indebtedness, when and as the same shall become due and
payable;
<PAGE>
(g) any event or condition occurs that results in any Material
Indebtedness becoming due prior to its scheduled maturity or that
enables or permits (with or without the giving of notice, the lapse of
time or both) the holder or holders of any Material Indebtedness or
any trustee or agent on its or their behalf to cause any Material
Indebtedness to become due, or to require the prepayment, repurchase,
redemption or defeasance thereof, prior to its scheduled maturity;
provided that this clause (g) shall not apply to secured Indebtedness
that becomes due as a result of the voluntary sale or transfer of the
property or assets securing such Indebtedness;
(h) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed seeking (i) liquidation,
reorganization or other relief in respect of the Borrower or any
Subsidiary or its debts, or of a substantial part of its assets, under
any Federal, state or foreign bankruptcy, insolvency, receivership or
similar law now or hereafter in effect or (ii) the appointment of a
receiver, trustee, custodian, sequestrator, conservator or similar
official for the Borrower or any Subsidiary or for a substantial part
of its assets, and, in any such case, such proceeding or petition shall
continue undismissed for 60 days or an order or decree approving or
ordering any of the foregoing shall be entered;
(i) the Borrower or any Subsidiary shall (i) voluntarily commence
any proceeding or file any petition seeking liquidation, reorganization
or other relief under any Federal, state or foreign bankruptcy,
insolvency, receivership or similar law now or hereafter in effect,
(ii) consent to the institution of, or fail to contest in a timely and
appropriate manner, any proceeding or petition described in clause (h)
of this Section, (iii) apply for or consent to the appointment of a
receiver, trustee, custodian, sequestrator, conservator or similar
official for the Borrower or any Subsidiary or for a substantial part
of its assets, (iv) file an answer admitting the material allegations
of a petition filed against it in any such proceeding, (v) make a
general assignment for the benefit of creditors or (vi) take any action
for the purpose of effecting any of the foregoing;
(j) the Borrower or any Subsidiary shall become unable, admit in
writing its inability or fail generally to pay its debts as they become
due;
(k) one or more judgments for the payment of money in an
aggregate amount in excess of $1,000,000 shall be rendered against the
Borrower, any Subsidiary or any combination thereof and the same shall
remain undischarged for a period of 30 consecutive days during which
execution shall not be effectively stayed, or any action shall be
legally taken by a judgment creditor to attach or levy upon any assets
of the Borrower or any Subsidiary to enforce any such judgment;
(l) an ERISA Event shall have occurred that, in the opinion of
the Required Lenders, when taken together with all other ERISA Events
that have occurred, could reasonably be expected to result in liability
of the Borrower and its Subsidiaries in an aggregate amount exceeding
(i) $1,000,000 in any year or (ii) $1,000,000 for all periods;
(m) a Change in Control shall occur;
(n) a Material Adverse Effect shall occur;
<PAGE>
(o) this Agreement or any other Loan Document shall cease to be
in full force and effect or shall be declared null and void or the
validity or enforceability thereof shall be contested or challenged by
the Borrower or any Subsidiary or any of their respective shareholders,
or the Borrower or any Guarantor shall deny that it has any further
liability or obligation under any of the Loan Documents, or any Lien
created by the Loan Documents shall for any reason cease to be a valid,
first priority perfected security interest in and Lien upon any of the
Collateral purported to be covered thereby; or
(p) the Borrower or any Subsidiary, or any of their properties,
revenues or assets shall become subject to an order of forfeiture,
seizure or divestiture and the same shall not have been discharged
within 30 days from the date of entry thereof.
then, and in every such event (other than an event with respect to the
Borrower described in clause (h) or (i) of this Section), and at any time
thereafter during the continuance of such event, the Administrative Agent
may, and at the request of the Required Lenders shall, by notice to the
Borrower, take either or both of the following actions, at the same or
different times: (i) terminate the Commitments, and thereupon the
Commitments shall terminate immediately, and (ii) declare the Loans then
outstanding to be due and payable in whole (or in part, in which case any
principal not so declared to be due and payable may thereafter be declared
to be due and payable), and thereupon the principal of the Loans so declared
to be due and payable, together with accrued interest thereon and all fees
and other obligations of the Borrower accrued hereunder, shall become due
and payable immediately, without presentment, demand, protest or other
notice of any kind, all of which are hereby waived by the Borrower; and in
case of any event with respect to the Borrower described in clause (h), (i)
or (n) of this Section, the Commitments shall automatically terminate and
the principal of the Loans then outstanding, together with accrued interest
thereon and all fees and other obligations of the Borrower accrued
hereunder, shall automatically become due and payable, without notice,
demand, presentment, notice of dishonor, notice of acceleration, notice of
intent to accelerate, notice of intent to demand, protest, or other
formalities of any kind, all of which are hereby waived by the Borrower. If
any Event of Default shall occur and be continuing, the Administrative Agent
may exercise all rights and remedies available to it in law or in equity,
under the Loan Documents, or otherwise, including, without limitation, the
right to foreclose or otherwise enforce any Lien granted to the
Administrative Agent for the benefit of itself and the Lenders to secure
payment and performance of the Obligations.
SECTION 10.2 Performance by the Administrative Agent.
If the Borrower shall fail to perform any covenant or agreement
contained in any of the Loan Documents, the Administrative Agent may
perform or attempt to perform such covenant or agreement on behalf of the
Borrower. In such event, the Borrower shall, at the request of the Admin-
istrative Agent, promptly pay any amount expended by the Administrative
Agent in connection with such performance or attempted performance to the
Administrative Agent, together with interest thereon at the Maximum Rate
from and including the date of such expenditure to but excluding the date
such expenditure is paid in full. Notwithstanding the foregoing, it is
expressly agreed that neither the Administrative Agent nor any Lender shall
not have any liability or responsibility for the performance of any
obligation of the Borrower under this Agreement or any other Loan Document.
<PAGE>
ARTICLE XI
The Administrative Agent.
Each of the Lenders hereby irrevocably appoints the Administrative
Agent as its agent and authorizes the Administrative Agent to take such
actions on its behalf and to exercise such powers as are delegated to the
Administrative Agent by the terms of the Loan Documents, together with such
actions and powers as are reasonably incidental thereto.
The bank serving as the Administrative Agent hereunder shall have
the same rights and powers in its capacity as a Lender as any other Lender
and may exercise the same as though it were not the Administrative Agent,
and such bank and its Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with the Borrower or any Subsidiary
or other Affiliate thereof as if it were not the Administrative Agent
hereunder.
The Administrative Agent shall not have any duties or obligations
except those expressly set forth herein. Without limiting the generality of
the foregoing, (a) the Administrative Agent shall not be subject to any
fiduciary or other implied duties, regardless of whether a Default has
occurred and is continuing, (b) the Administrative Agent shall not have any
duty to take any discretionary action or exercise any discretionary powers,
except discretionary rights and powers expressly contemplated hereby that
the Administrative Agent is required to exercise in writing by the Required
Lenders (or such other number or percentage of the Lenders as shall be
necessary under the circumstances as provided in Section 12.02), and
(c) except as expressly set forth herein, the Administrative Agent shall not
have any duty to disclose, and shall not be liable for the failure to
disclose, any information relating to the Borrower or any of its
Subsidiaries that is communicated to or obtained by the bank serving as
Administrative Agent or any of its Affiliates in any capacity. The
Administrative Agent shall not be liable for any action taken or not taken
by it with the consent or at the request of the Required Lenders (or such
other number or percentage of the Lenders as shall be necessary under the
circumstances as provided in Section 12.02) or in the absence of its own
gross negligence or wilful misconduct. The Administrative Agent shall be
deemed not to have knowledge of any Default unless and until written notice
thereof is given to the Administrative Agent by the Borrower or a Lender,
and the Administrative Agent shall not be responsible for or have any duty
to ascertain or inquire into (i) any statement, warranty or representation
made in or in connection with any Loan Document, (ii) the contents of any
certificate, report or other document delivered hereunder or in connection
herewith, (iii) the performance or observance of any of the covenants,
agreements or other terms or conditions set forth in any Loan Document,
(iv) the validity, enforceability, effectiveness or genuineness of any Loan
Document or any other agreement, instrument or document, or (v) the
satisfaction of any condition set forth in Article VI or elsewhere in any
Loan Document, other than to confirm receipt of items expressly required to
be delivered to the Administrative Agent.
<PAGE>
The Administrative Agent shall be entitled to rely upon, and shall
not incur any liability for relying upon, any notice, request, certificate,
consent, statement, instrument, document or other writing believed by it to
be genuine and to have been signed or sent by the proper Person. The
Administrative Agent also may rely upon any statement made to it orally or
by telephone and believed by it to be made by the proper Person, and shall
not incur any liability for relying thereon. The Administrative Agent may
consult with legal counsel (who may be counsel for the Borrower),
independent accountants and other experts selected by it, and shall not be
liable for any action taken or not taken by it in accordance with the advice
of any such counsel, accountants or experts.
The Administrative Agent may perform any and all its duties and
exercise its rights and powers by or through any one or more subagents
appointed by the Administrative Agent. The Administrative Agent and any
such subagent may perform any and all its duties and exercise its rights and
powers through their respective Related Parties. The exculpatory provisions
of the preceding paragraphs shall apply to any such subagent and to the
Related Parties of the Administrative Agent and any such subagent, and shall
apply to their respective activities in connection with the syndication of
the credit facilities provided for herein as well as activities as
Administrative Agent.
Subject to the appointment and acceptance of a successor
Administrative Agent as provided in this paragraph, the Administrative Agent
may resign at any time by notifying the Lenders and the Borrower. Upon any
such resignation, the Required Lenders shall have the right, with the
consent of the Borrower (which consent shall not be unreasonably withheld,
and shall not be required if any Event of Default exists) to appoint a
successor. If no successor shall have been so appointed by the Required
Lenders and shall have accepted such appointment within 30 days after the
retiring Administrative Agent gives notice of its resignation, then the
retiring Administrative Agent may, after consulting with the Lenders and the
Borrower, appoint a successor Administrative Agent which shall be a bank
with an office in Dallas, Texas, or an Affiliate of any such bank. Upon the
acceptance of its appointment as Administrative Agent hereunder by a
successor, such successor shall succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Administrative Agent,
and the retiring Administrative Agent shall be discharged from its duties
and obligations hereunder. The fees payable by the Borrower to a successor
Administrative Agent shall be the same as those payable to its predecessor
unless otherwise agreed between the Borrower and such successor. After the
Administrative Agent's resignation hereunder, the provisions of this Article
and Section 12.03 shall continue in effect for the benefit of such retiring
Administrative Agent, its subagents and their respective Related Parties in
respect of any actions taken or omitted to be taken by any of them while it
was acting as Administrative Agent.
Each Lender acknowledges that it has, independently and without
reliance upon the Administrative Agent or any other Lender and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall from time to time deem appropriate, continue to make
its own decisions in taking or not taking action under or based upon this
Agreement, any related agreement or any document furnished hereunder or
thereunder.
<PAGE>
ARTICLE XII
Miscellaneous
SECTION 12.1 Notices.
Except in the case of notices and other communications expressly
permitted to be given by telephone, all notices and other communications
provided for herein shall be in writing and shall be delivered by hand or
overnight courier service, mailed by certified or registered mail or sent by
telecopy, as follows:
(a) if to the Borrower, to it at 3811 Turtle Creek Blvd., Suite
1100, Dallas, Texas 75219, Attention of Larry Weardon and Ric Floyd
(Telecopy No. (214) 522-8488);
(b) if to the Administrative Agent, to Chase Bank of Texas,
National Association, 2200 Ross Avenue, 5th Floor, Dallas, Texas
75201, Attention of Mae K. Reeves (Telecopy No. (214) 965-2884), and,
for any Borrowing Requests, with a copy to The Chase Manhattan Bank,
Agency Services, One Chase Manhattan Plaza, 8th Floor, New York, New
York 10081, Attention of Muniram Appanna (Telecopy No. (212) 552-7490);
and
(c) if to any other Lender, to it at its address (or telecopy
number) set forth in its Administrative Questionnaire.
Any party hereto may change its address or telecopy number for notices and
other communications hereunder by notice to the other parties hereto. All
notices and other communications given to any party hereto in accordance
with the provisions of this Agreement shall be deemed to have been given on
the date of receipt.
SECTION 12.2 Waivers; Amendments
(a) No failure or delay by the Administrative Agent or any
Lender in exercising any right or power hereunder or under any other Loan
Document shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right or power, or any abandonment or discontinuance of
steps to enforce such a right or power, preclude any other or further
exercise thereof or the exercise of any other right or power. The rights
and remedies of the Administrative Agent and the Lenders hereunder and under
the other Loan Documents are cumulative and are not exclusive of any rights
or remedies that they would otherwise have. No waiver of any provision of
any Loan Document or consent to any departure by the Borrower or any
Subsidiary therefrom shall in any event be effective unless the same shall
be permitted by paragraph (b) of this Section, and then such waiver or
consent shall be effective only in the specific instance and for the purpose
for which given. Without limiting the generality of the foregoing, the
making of a Loan shall not be construed as a waiver of any Default,
regardless of whether the Administrative Agent, any Lender may have had
notice or knowledge of such Default at the time.
<PAGE>
(b) Neither this Agreement nor any other Loan Document nor any
provision hereof may be waived, amended or modified except, in the case of
this Agreement, pursuant to an agreement or agreements in writing entered
into by the Borrower and the Required Lenders or by the Borrower and the
Administrative Agent with the consent of the Required Lenders or, in the
case of any other Loan Document, pursuant to an agreement or agreements in
writing entered into by the Administrative Agent and the other parties
thereto; provided that no such agreement shall (i) increase the Commitment
of any Lender without the written consent of such Lender, (ii) reduce the
principal amount of any Loan or reduce the rate of interest thereon, or
reduce any fees payable hereunder, without the written consent of each
Lender, (iii) postpone the scheduled date of payment of the principal amount
of any Loan, or any interest thereon, or any fees payable hereunder, or
reduce the amount of, waive or excuse any such payment, or postpone the
scheduled date of expiration of any Commitment, without the written consent
of each Lender, (iv) change Section 2.12(b) or (c) in a manner that would
alter the pro rata sharing of payments required thereby, without the written
consent of each Lender, (v) reduce the Commitment of any Lender without the
written consent of each Lender, (vi) modify or waive Section 10.01(m) or the
definition of "Change in Control" without the written consent of each
Lender, (vii) release any Collateral or Guarantor without the written
consent of each Lender, except in connection with dispositions, mergers or
dissolutions expressly permitted by this Agreement, or (viii) change any of
the provisions of this Section or the definition of "Required Lenders" or
any other provision hereof specifying the number or percentage of Lenders
required to waive, amend or modify any rights hereunder or make any
determination or grant any consent hereunder, without the written consent
of each Lender; provided further that no such agreement shall amend, modify
or otherwise affect the rights or duties of the Administrative Agent
hereunder without the prior written consent of the Administrative Agent.
SECTION 12.3 Expenses; Indemnity; Damage Waiver.
(a) The Borrower shall pay (i) all reasonable out-of-pocket
expenses incurred by the Administrative Agent and its Affiliates, including
the reasonable fees, charges and disbursements of counsel for the
Administrative Agent, in connection with the syndication of the credit
facilities provided for herein, the preparation and administration of this
Agreement, the other Loan Documents or any amendments, modifications or
waivers of the provisions hereof or thereof (whether or not the transactions
contemplated hereby or thereby shall be consummated), (ii) all out-of-pocket
expenses incurred by the Administrative Agent, and, after an Event of
Default, any Lender, including the fees, charges and disbursements of any
counsel for the Administrative Agent or any Lender in connection with the
enforcement or protection of its rights in connection with this Agreement
and the other Loan Documents, including its rights under this Section, or in
connection with the Loans made, including all such out-of-pocket expenses
incurred during any workout, restructuring or negotiations in respect of
such Loans, (iii) all transfer, stamp, documentary, or other similar taxes,
assessments or charges levied by any Governmental Authority in respect of
this Agreement or any of the other Loan Documents, (iv) all costs,
out-of-pocket expenses, assessments and other charges incurred in connection
with any filing, registration, recording, or perfection of any security
interest or Lien contemplated by this Agreement or any other Loan Document,
and (v) all other costs and out-of-pocket expenses incurred by the
Administrative Agent in connection with this Agreement, any other Loan
Document or the Collateral, including without limitation costs, fees,
expenses and other charges incurred in connection with performing or
obtaining any audit or appraisal in respect of the Collateral or for any
surveys, environmental assessments, title insurance, filing fees, recording
costs and lien searches.
<PAGE>
(b) THE BORROWER SHALL INDEMNIFY THE ADMINISTRATIVE AGENT AND
EACH LENDER, AND EACH RELATED PARTY OF ANY OF THE FOREGOING PERSONS (EACH
SUCH PERSON BEING CALLED AN "INDEMNITEE") AGAINST, AND HOLD EACH INDEMNITEE
HARMLESS FROM, ANY AND ALL LOSSES, CLAIMS, DAMAGES, LIABILITIES AND RELATED
EXPENSES, INCLUDING THE FEES, CHARGES AND DISBURSEMENTS OF ANY COUNSEL FOR
ANY INDEMNITEE, INCURRED BY OR ASSERTED AGAINST ANY INDEMNITEE ARISING OUT
OF, IN CONNECTION WITH, OR AS A RESULT OF (I) THE EXECUTION OR DELIVERY OF
THIS AGREEMENT OR ANY AGREEMENT OR INSTRUMENT CONTEMPLATED HEREBY, THE
PERFORMANCE BY THE PARTIES HERETO OF THEIR RESPECTIVE OBLIGATIONS HEREUNDER
OR THE CONSUMMATION OF THE TRANSACTIONS OR ANY OTHER TRANSACTIONS
CONTEMPLATED HEREBY, (II) ANY LOAN OR THE USE OF THE PROCEEDS THEREFROM,
(III) ANY ACTUAL OR ALLEGED PRESENCE OR RELEASE OF HAZARDOUS MATERIALS ON OR
FROM ANY PROPERTY OWNED OR OPERATED BY THE BORROWER OR ANY OF ITS
SUBSIDIARIES, OR ANY ENVIRONMENTAL LIABILITY RELATED IN ANY WAY TO THE
BORROWER OR ANY OF ITS SUBSIDIARIES, OR (IV) ANY ACTUAL OR PROSPECTIVE
CLAIM, LITIGATION, INVESTIGATION OR PROCEEDING RELATING TO ANY OF THE
FOREGOING, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY AND
REGARDLESS OF WHETHER ANY INDEMNITEE IS A PARTY THERETO; PROVIDED THAT SUCH
INDEMNITY SHALL NOT, AS TO ANY INDEMNITEE, BE AVAILABLE TO THE EXTENT THAT
SUCH LOSSES, CLAIMS, DAMAGES, LIABILITIES OR RELATED EXPENSES ARE DETERMINED
BY A COURT OF COMPETENT JURISDICTION BY FINAL AND NONAPPEALABLE JUDGMENT TO
HAVE RESULTED FROM THE GROSS NEGLIGENCE OR WILFUL MISCONDUCT OF SUCH
INDEMNITEE.
(c) To the extent that the Borrower fails to pay any amount
required to be paid by it to the Administrative Agent under paragraph (a) or
(b) of this Section, each Lender severally agrees to pay to the
Administrative Agent such Lender's Applicable Percentage (determined as of
the time that the applicable unreimbursed expense or indemnity payment is
sought) of such unpaid amount; provided that the unreimbursed expense or
indemnified loss, claim, damage, liability or related expense, as the case
may be, was incurred by or asserted against the Administrative Agent in its
capacity as such.
(d) To the extent permitted by applicable law, the Borrower shall
not assert, and hereby waives, any claim against any Indemnitee, on any
theory of liability, for special, indirect, consequential or punitive
damages (as opposed to direct or actual damages) arising out of, in
connection with, or as a result of, this Agreement or any agreement or
instrument contemplated hereby, the Transactions, any Loan or the use of the
proceeds thereof.
(e) All amounts due under this Section shall be payable upon
written demand therefor.
SECTION 12.4 Successors and Assigns
(a) The provisions of this Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors
and assigns permitted hereby, except that the Borrower may not assign or
otherwise transfer any of its rights or obligations hereunder without the
prior written consent of each Lender (and any attempted assignment or
transfer by the Borrower without such consent shall be null and void).
Nothing in this Agreement, expressed or implied, shall be construed to
confer upon any Person (other than the parties hereto, their respective
successors and assigns permitted hereby and, to the extent expressly
contemplated hereby, the Related Parties of each of the Administrative Agent
and the Lenders) any legal or equitable right, remedy or claim under or by
reason of this Agreement.
<PAGE>
(b) Any Lender may assign to one or more assignees all or a
portion of its rights and obligations under this Agreement (including all or
a portion of its Commitment and the Loans at the time owing to it); provided
that (i) except in the case of an assignment to a Lender or an Affiliate of
a Lender, each of the Borrower and the Administrative Agent must give their
prior written consent to such assignment (which consent shall not be
unreasonably withheld), (ii) except in the case of an assignment to a Lender
or an Affiliate of a Lender or an assignment of the entire remaining amount
of the assigning Lender's Commitment, the amount of the Commitment of the
assigning Lender subject to each such assignment (determined as of the date
the Assignment and Acceptance with respect to such assignment is delivered
to the Administrative Agent) shall not be less than $5,000,000 unless each
of the Borrower and the Administrative Agent otherwise consent, (iii) each
partial assignment shall be made as an assignment of a proportionate part of
all the assigning Lender's rights and obligations under this Agreement,
(iv) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Acceptance, together with a
processing and recordation fee of $3,500, and (v) the assignee, if it shall
not be a Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire; and provided further that any consent of the Borrower
otherwise required under this paragraph shall not be required if an Event of
Default under Article X has occurred and is continuing. Subject to
acceptance and recording thereof pursuant to paragraph (d) of this Section,
from and after the effective date specified in each Assignment and
Acceptance the assignee thereunder shall be a party hereto and, to the
extent of the interest assigned by such Assignment and Acceptance, have the
rights and obligations of a Lender under this Agreement, and the assigning
Lender thereunder shall, to the extent of the interest assigned by such
Assignment and Acceptance, be released from its obligations under this
Agreement (and, in the case of an Assignment and Acceptance covering all of
the assigning Lender's rights and obligations under this Agreement, such
Lender shall cease to be a party hereto but shall continue to be entitled to
the benefits of Sections 2.11, 3.01, 3.05 and 12.03). Any assignment or
transfer by a Lender of rights or obligations under this Agreement that does
not comply with this paragraph shall be treated for purposes of this
Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with paragraph (e) of this Section.
(c) The Administrative Agent, acting for this purpose as an agent
of the Borrower, shall maintain at one of its offices in Dallas, Texas a
copy of each Assignment and Acceptance delivered to it and a register for
the recordation of the names and addresses of the Lenders, and the
Commitment of, and principal amount of the Loans owing to, each Lender
pursuant to the terms hereof from time to time (the "Register"). The
entries in the Register shall be conclusive, and the Borrower, the
Administrative Agent and the Lenders may treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Lender hereunder
for all purposes of this Agreement, notwithstanding notice to the contrary.
The Register shall be available for inspection by the Borrower and any
Lender, at any reasonable time and from time to time upon reasonable prior
notice.
<PAGE>
(d) Upon its receipt of a duly completed Assignment and
Acceptance executed by an assigning Lender and an assignee, the assignee's
completed Administrative Questionnaire (unless the assignee shall already be
a Lender hereunder), the processing and recordation fee referred to in
paragraph (b) of this Section and any written consent to such assignment
required by paragraph (b) of this Section, the Administrative Agent shall
accept such Assignment and Acceptance and record the information contained
therein in the Register. No assignment shall be effective for purposes of
this Agreement unless it has been recorded in the Register as provided in
this paragraph. Each assigning Lender shall surrender any Note subject to
such assignment, and the Borrower shall execute and deliver to the
Administrative Agent in exchange for the surrendered Note a new Note payable
to the order of the assignee in an amount equal to the Commitment assumed by
such assignee pursuant to such Assignment and Acceptance and, if the
assigning Lender has retained a Commitment, a new Note payable to the order
of the assigning Lender in an amount equal to the Commitment retained by it
hereunder. Such new Notes shall be in an aggregate face amount of the
surrendered Note, shall be dated the effective date of such Assignment and
Acceptance, and shall otherwise be in substantially the form of Exhibit "A"
hereto and shall each constitute a "Note" for purposes of the Loan
Documents.
(e) Any Lender may, without the consent of the Borrower or the
Administrative Agent, sell participations to one or more banks or other
entities (a "Participant") in all or a portion of such Lender's rights and
obligations under this Agreement (including all or a portion of its
Commitment and the Loans owing to it); provided that (i) such Lender's
obligations under this Agreement shall remain unchanged, (ii) such Lender
shall remain solely responsible to the other parties hereto for the
performance of such obligations and (iii) the Borrower, the Administrative
Agent and the other Lenders shall continue to deal solely and directly with
such Lender in connection with such Lender's rights and obligations under
this Agreement. Any agreement or instrument pursuant to which a Lender
sells such a participation shall provide that such Lender shall retain the
sole right to enforce the Loan Documents and to approve any amendment,
modification or waiver of any provision of the Loan Documents; provided that
such agreement or instrument may provide that such Lender will not, without
the consent of the Participant, agree to any amendment, modification or
waiver described in the first proviso to Section 12.02(b) that affects such
Participant. Subject to paragraph (f) of this Section, the Borrower agrees
that each Participant shall be entitled to the benefits of Sections 2.11,
3.01 and 3.05 to the same extent as if it were a Lender and had acquired its
interest by assignment pursuant to paragraph (b) of this Section. To the
extent permitted by law, each Participant also shall be entitled to the
benefits of Section 12.08 as though it were a Lender, provided such
Participant agrees to be subject to Section 2.12(c) as though it were a
Lender.
(f) A Participant shall not be entitled to receive any greater
payment under Section 2.11 or 3.01 than the applicable Lender would have
been entitled to receive with respect to the participation sold to such
Participant, unless the sale of the participation to such Participant is
made with the Borrower's prior written consent. A Participant that would be
a Foreign Lender if it were a Lender shall not be entitled to the benefits
of Section 2.11 unless the Borrower is notified of the participation sold to
such Participant and such Participant agrees, for the benefit of the
Borrower, to comply with Section 2.11(e) as though it were a Lender.
<PAGE>
(g) Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement to secure
obligations of such Lender, including any pledge or assignment to secure
obligations to a Federal Reserve Bank, and this Section shall not apply to
any such pledge or assignment of a security interest; provided that no such
pledge or assignment of a security interest shall release a Lender from any
of its obligations hereunder or substitute any such pledgee or assignee for
such Lender as a party hereto.
SECTION 12.5 Survival.
All covenants, agreements, representations and warranties made by
the Borrower and the Subsidiaries in the Loan Documents and in the
certificates or other instruments delivered in connection with or pursuant
to this Agreement or any other Loan Document shall be considered to have
been relied upon by the other parties hereto and shall survive the execution
and delivery of the Loan Documents and the making of any Loans, regardless
of any investigation made by any such other party or on its behalf and
notwithstanding that the Administrative Agent or any Lender may have had
notice or knowledge of any Default or incorrect representation or warranty
at the time any credit is extended hereunder, and shall continue in full
force and effect as long as the principal of or any accrued interest on any
Loan or any fee or any other amount payable under this Agreement is
outstanding and unpaid is outstanding and so long as the Commitments have
not expired or terminated. The provisions of Sections 2.11, 3.01, 3.05 and
12.03 and Article XI shall survive and remain in full force and effect
regardless of the consummation of the transactions contemplated hereby, the
repayment of the Loans or the termination of this Agreement or any provision
hereof.
SECTION 12.6 Counterparts; Effectiveness.
This Agreement may be executed in counterparts (and by different
parties hereto on different counterparts), each of which shall constitute an
original, but all of which when taken together shall constitute a single
contract. Except as provided in Section 6.01, this Agreement shall become
effective when it shall have been executed by the Administrative Agent and
when the Administrative Agent shall have received counterparts hereof which,
when taken together, bear the signatures of each of the other parties
hereto, and thereafter shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns. Delivery of an
executed counterpart of a signature page of this Agreement by telecopy shall
be effective as delivery of a manually executed counterpart of this
Agreement.
SECTION 12.7 Severability.
Any provision of this Agreement held to be invalid, illegal or
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity, illegality or unenforceability
without affecting the validity, legality and enforceability of the remaining
provisions hereof; and the invalidity of a particular provision in a
particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
<PAGE>
SECTION 12.8 Right of Setoff.
If an Event of Default shall have occurred and be continuing, each
Lender and each of its Affiliates is hereby authorized at any time and from
time to time, to the fullest extent permitted by law, to set off and apply
any and all deposits (general or special, time or demand, provisional or
final) at any time held and other obligations at any time owing by such
Lender or Affiliate to or for the credit or the account of the Borrower
against any and all of the Obligations, irrespective of whether or not any
demand shall have been made under this Agreement and although such
Obligations may be unmatured. The rights of each Lender under this Section
are in addition to other rights and remedies (including other rights of
setoff) which such Lender may have.
SECTION 12.9 GOVERNING LAW; VENUE; SERVICE OF PROCESS.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF TEXAS AND THE APPLICABLE LAWS OF THE UNITED
STATES OF AMERICA. THIS AGREEMENT HAS BEEN ENTERED INTO IN DALLAS COUNTY,
TEXAS, AND IT SHALL BE PERFORMABLE FOR ALL PURPOSES IN DALLAS COUNTY, TEXAS.
ANY ACTION OR PROCEEDING AGAINST THE BORROWER UNDER OR IN CONNECTION WITH
ANY OF THE LOAN DOCUMENTS MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT IN
DALLAS COUNTY, TEXAS. THE BORROWER HEREBY IRREVOCABLY (A) SUBMITS TO THE
NONEXCLUSIVE JURISDICTION OF SUCH COURTS, AND (B) WAIVES ANY OBJECTION IT
MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING
BROUGHT IN ANY SUCH COURT OR THAT ANY SUCH COURT IS AN INCONVENIENT FORUM.
THE BORROWER AGREES THAT SERVICE OF PROCESS UPON IT MAY BE MADE BY CERTIFIED
OR REGISTERED MAIL, RETURN RECEIPT REQUESTED, AT ITS ADDRESS SPECIFIED OR
DETERMINED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 12.01. NOTHING
HEREIN OR IN ANY OF THE OTHER LOAN DOCUMENTS SHALL AFFECT THE RIGHT OF THE
ADMINISTRATIVE AGENT OR ANY LENDER TO SERVE PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW OR SHALL LIMIT THE RIGHT OF THE ADMINISTRATIVE AGENT OR ANY
LENDER TO BRING ANY ACTION OR PROCEEDING AGAINST THE BORROWER OR WITH
RESPECT TO ANY OF ITS RESPECTIVE PROPERTY IN COURTS IN OTHER JURISDICTIONS.
ANY ACTION OR PROCEEDING BY THE BORROWER AGAINST THE ADMINISTRATIVE AGENT
OR ANY LENDER SHALL BE BROUGHT ONLY IN A COURT LOCATED IN DALLAS COUNTY,
TEXAS.
SECTION 12.10 WAIVER OF JURY TRIAL.
EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON
CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT
NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT
IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREE-
MENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION.
SECTION 12.11 Headings.
Article and Section headings and the Table of Contents used herein
are for convenience of reference only, are not part of this Agreement and
shall not affect the construction of, or be taken into consideration in
interpreting, this Agreement.
<PAGE>
SECTION 12.12 Confidentiality.
Each of the Administrative Agent and the Lenders agrees to
maintain the confidentiality of the Information (as defined below), except
that Information may be disclosed (a) to its Affiliates and to its and its
Affiliates' directors, officers, employees and agents, including
accountants, legal counsel and other advisors (it being understood that the
Persons to whom such disclosure is made will be informed of the confidential
nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory authority,
(c) to the extent required by applicable laws or regulations or by any
subpoena or similar legal process, (d) to any other party to this Agreement,
(e) in connection with the exercise of any remedies hereunder or any suit,
action or proceeding relating to this Agreement or any other Loan Document
or the enforcement of rights hereunder or thereunder, (f) subject to an
agreement containing provisions substantially the same as those of this
Section, to any assignee of or Participant in, or any prospective assignee
of or Participant in, any of its rights or obligations under this Agreement,
(g) with the consent of the Borrower or (h) to the extent such Information
(i) becomes publicly available other than as a result of a breach of this
Section or (ii) becomes available to the Administrative Agent or any Lender
on a nonconfidential basis from a source other than the Borrower. For the
purposes of this Section, "Information" means all information received from
the Borrower relating to the Borrower or its business, other than any such
information that is available to the Administrative Agent or any Lender on a
nonconfidential basis prior to disclosure by the Borrower; provided that, in
the case of information received from the Borrower after the date hereof,
such information is clearly identified at the time of delivery as
confidential. Any Person required to maintain the confidentiality of
Information as provided in this Section shall be considered to have complied
with its obligation to do so if such Person has exercised the same degree of
care to maintain the confidentiality of such Information as such Person
would accord to its own confidential information.
SECTION 12.13 Maximum Interest Rate.
No provision of this Agreement or of any other Loan Document shall
require the payment or the collection of interest in excess of the maximum
amount permitted by applicable law. If any excess of interest in such
respect is hereby provided for, or shall be adjudicated to be so provided,
in any Loan Document or otherwise in connection with this loan transaction,
the provisions of this Section shall govern and prevail and neither the
Borrower nor the sureties, guarantors, successors, or assigns of the
Borrower shall be obligated to pay the excess amount of such interest or any
other excess sum paid for the use, forbearance, or detention of sums loaned
pursuant hereto. In the event any Lender ever receives, collects, or
applies as interest any such sum, such amount which would be in excess of
the maximum amount permitted by applicable law shall be applied as a payment
and reduction of the principal of the indebtedness evidenced by the Notes;
and, if the principal of the Notes has been paid in full, any remaining
excess shall forthwith be paid to the Borrower. In determining whether or
not the interest paid or payable exceeds the Maximum Rate, the Borrower and
each Lender shall, to the extent permitted by applicable law,
(a) characterize any non-principal payment as an expense, fee, or premium
rather than as interest, (b) exclude voluntary prepayments and the effects
thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal
parts the total amount of interest throughout the entire contemplated term
of the indebtedness evidenced by the Notes so that interest for the entire
term does not exceed the Maximum Rate.
<PAGE>
SECTION 12.14 Non-Application of Chapter 346 of Texas Finance
Code.
The provisions of Chapter 346 of the Texas Finance Code (Vernon's
Texas Code Annotated) are specifically declared by the parties hereto not to
be applicable to this Agreement or any of the other Loan Documents or to the
transactions contemplated hereby.
SECTION 12.15 NO ORAL AGREEMENTS.
THIS AGREEMENT, THE NOTES, ANY SEPARATE LETTER AGREEMENTS WITH
RESPECT TO FEES PAYABLE TO THE ADMINISTRATIVE AGENT, AND THE OTHER LOAN
DOCUMENTS REFERRED TO HEREIN REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES
HERETO AND MAY NOT BE CONTRADICTED OR VARIED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES HERETO. THERE
ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES HERETO.
SECTION 12.16 No Fiduciary Relationship.
The relationship between the Borrower and each Lender with respect
to the Loan Documents and the Transactions is solely that of debtor and
creditor, and neither the Administrative Agent nor any Lender has any
fiduciary or other special relationship with the Borrower with respect to
the Loan Documents and the Transactions, and no term or condition of any of
the Loan Documents shall be construed so as to deem the relationship between
the Borrower and any Lender with respect to the Loan Documents and the
Transactions to be other than that of debtor and creditor.
SECTION 12.17 Construction.
The Borrower, the Administrative Agent and each Lender acknowledge
that each of them has had the benefit of legal counsel of its own choice and
has been afforded an opportunity to review this Agreement and the other Loan
Documents with its legal counsel and that this Agreement and the other Loan
Documents shall be construed as if jointly drafted by the parties hereto.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed by their respective authorized officers as of the day
and year first above written.
[Remainder of this page intentionally left blank]
<PAGE>
[Signature Pages Follow]
<PAGE>
PEGASUS SYSTEMS, INC.
By: /s/ JOHN F. DAVIS, III
----------------------------------
Name: John F. Davis, III
Title: President
CHASE BANK OF TEXAS, NATIONAL ASSOCIATION,
individually and as Administrative Agent
By: /s/ MAE REEVES
----------------------------------
Name: Mae Reeves
Title: Vice President
WELLS FARGO BANK (TEXAS), NATIONAL ASSOCIATION
By: /s/ DAVID C. OLDANI
----------------------------------
Name: David C. Oldani
Title: Vice President
COMPASS BANK
By: /s/ R. BRUCE FREY
----------------------------------
Name: R. Bruce Frey
Title: Vice President
<PAGE>
INDEX TO EXHIBITS
Exhibit Description of Exhibits
"A" Form of Note
"B" Borrowing Request Form
"C" Security Agreement
"D" Guaranty
"E" Contribution and
Indemnification Agreement
"F" Matters to be Addressed in
Opinion of Counsel
"G" Compliance Certificate
"H" Assignment and Acceptance
INDEX TO SCHEDULES
Schedule Description of Schedules
1.01 Investment Policy
2.01 Lenders and Commitments
5.06 Disclosed Matters
5.14 Subsidiaries
5.16 Patents, Trademarks and
Copyrights
8.01 Existing Indebtedness
8.02 Existing Liens
8.08 Existing Restrictive
Agreements
EXHIBIT 10.15
EXHIBIT "C"
TO
CREDIT AGREEMENT
Form of Security Agreement
--------------------------
<PAGE>
SECURITY AGREEMENT
SECURITY AGREEMENT ("Agreement") dated as of April 17, 2000, among
PEGASUS SYSTEMS, INC., a Delaware corporation ("Borrower"); each of the
Subsidiaries party hereto (the "Subsidiary Guarantors"); and CHASE BANK OF
TEXAS, NATIONAL ASSOCIATION, as administrative agent for the lenders or
other financial institutions or entities party, as lenders (the "Lenders"),
to the Credit Agreement referred to below (in such capacity, together with
its successors in such capacity, the "Administrative Agent").
Borrower, the Subsidiary Guarantors, the Lenders, and the
Administrative Agent are parties to a Credit Agreement dated as of the date
hereof (as modified and supplemented and in effect from time to time, the
"Credit Agreement"), providing, subject to the terms and conditions thereof,
for extensions of credit (by the making of loans) to be made by the Lenders
to Borrower.
To induce the Lenders to enter into the Credit Agreement and to extend
credit thereunder, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, each Debtor (as
hereinafter defined) has agreed to pledge and grant a security interest in
the Pledged Collateral (as hereinafter defined) as security for the Secured
Obligations (as hereinafter defined). Accordingly, the parties hereto agree
as follows:
Section 1. Definitions. All capitalized terms used and not
otherwise defined herein shall have their respective meanings as set forth
in the Credit Agreement. Terms defined in the UCC shall have the same
meanings when used, unless otherwise defined, in this Agreement. If the
definition given a term in the Credit Agreement conflicts with the
definition given that term in the UCC, then the Credit Agreement definition
controls to the extent allowed by law. If the definition given a term in
Chapter 9 of the UCC conflicts with the definition given that term in any
other chapter of the UCC, then the Chapter 9 definition controls.
Furthermore, as used in this Agreement:
"Accounts" has the meaning set forth in Section 3.01(f) hereof.
"Agreement" has the meaning set forth in the introduction hereto.
"Contracts" shall mean all contracts, undertakings, or other
agreements, including, without limitation, the Company Acquisition
Documents, as the same may be amended from time to time, and (a) all rights
of any Debtor to receive moneys due and to become due thereunder or in
connection therewith, (b) all rights of any Debtor to damages arising out of
or for breach or default in respect thereof and (c) all rights of any Debtor
to exercise remedies thereunder.
"Copyright Collateral" shall mean all Copyrights, whether now owned or
hereafter acquired by any Debtor, including each Copyright identified in
Schedule 2 hereto.
"Copyrights" shall mean all copyrights, copyright registrations and
applications for copyright registrations, including, without limitation, all
renewals and extensions thereof, the right to recover for all past, present
and future infringements thereof, and all other rights of any kind
whatsoever accruing thereunder or pertaining thereto.
<PAGE>
"Debtor" shall mean each of Borrower and each Subsidiary Guarantor.
"Documents" has the meaning set forth in Section 3.01(l) hereof.
"Equipment" has the meaning set forth in Section 3.01(j) hereof.
"Equity Rights" shall mean, with respect to any Person, any outstanding
subscriptions, options, warrants, commitments, preemptive rights or
agreements of any kind (including any voting trust agreements) for the
issuance, sale, registration or voting of, or outstanding securities
convertible into, any additional shares of capital stock of any class, or
partnership or other ownership interests of any type in, such Person.
"General Intangibles" shall mean any "general intangibles", as such
term is defined in Section 9.106 of the UCC, now owned or hereafter acquired
by any Debtor and, in any event, shall include, without limitation, each of
the following, whether now owned or hereafter acquired by any Debtor:
(a) all Patents, Trademarks, Copyrights, trade secrets, Intellectual
Property, registrations, renewal rights, goodwill, franchises, licenses,
permits, proprietary information, customer lists, designs, and inventions of
any Debtor, (b) all books, records, data, plans, manuals, computer software,
and computer programs of any Debtor, (c) all contract rights, partnership
interests, joint venture interests, securities, deposit accounts, investment
accounts, certificates of deposit and investment property of any Debtor,
(d) all rights of any Debtor to payment under letters of credit and similar
agreements, (e) all tax refunds and tax refund claims of any Debtor, (f) all
choses in action and causes of action of any Debtor (whether arising in
contract, tort, or otherwise and whether or not currently in litigation) and
all judgments in favor of any Debtor, (g) all rights and claims of any
Debtor under warranties and indemnities, and (h) all rights of any Debtor
under any insurance, surety, or similar contract or arrangement.
"Instruments" has the meaning set forth in Section 3.01(g) hereof.
"Intellectual Property" shall mean, collectively, all Copyright
Collateral, all Patent Collateral and all Trademark Collateral, together
with (a) all inventions, processes, production methods, proprietary
information, know-how and trade secrets; (b) all licenses or user or other
agreements granted to any Debtor with respect to any of the foregoing, in
each case whether now or hereafter owned or used including, without
limitation, the licenses or other agreements with respect to the Copyright
Collateral, the Patent Collateral or the Trademark Collateral, listed in
Schedule 5 hereto; (c) all information, customer lists, identification of
suppliers, data, plans, blueprints, specifications, designs, drawings,
recorded knowledge, surveys, engineering reports, test reports, manuals,
materials standards, processing standards, performance standards, catalogs,
computer and automatic machinery software and programs; (d) all field repair
data, sales data and other information relating to sales or service of
products now or hereafter manufactured; (e) all accounting information and
all media in which or on which any information or knowledge or data or
records may be recorded or stored and all computer programs used for the
compilation or printout of such information, knowledge, records or data;
(f) all licenses, consents, permits, variances, certifications and approvals
of governmental agencies now or hereafter held by any Debtor; (g) all
databases and data collections and all rights therein; (h) all computer
software including all source code, object code, firmware, development
tools, files, records and data, all media on which any of the foregoing is
recorded, and all documentation related to any of the foregoing; (i) all
<PAGE>
domain names and Internet web sites and all rights and documentation related
to any of the foregoing; (j) all mask works and registrations therefor, and
all other rights corresponding thereto throughout the world; and (k) all
causes of action, claims and warranties now or hereafter owned or acquired
by the Debtors in respect of any of the items listed above.
"Interests" shall mean, as to any Debtor (i) all right, title and
interest, now existing or hereafter acquired, of such Debtor in any LLC but
not any of its obligations from time to time as a member (unless the
Administrative Agent shall become a member as a result of its exercise of
remedies herein) of any LLC; (ii) any and all moneys due and to become due
to such Debtor now or in the future by way of a distribution made to such
Debtor in its capacity as a member of or an owner of any LLC; (iii) any
other property of any LLC to which such Debtor now or in the future may be
entitled in its capacity as a member of or an owner of any LLC by way of
distribution, return of capital or otherwise; (iv) any other claim in
respect of any LLC to which such Debtor now or in the future may be entitled
in its capacity as a member of or an owner of any LLC and its property,
including any rights under any operating agreement or other agreement
governing or pertaining to such interests; (v) the certificates, if any,
representing all such rights and interests; (vi) all right of such Debtor
under each limited liability company or operating agreement of each LLC; and
(vii) to the extent not otherwise included, all Proceeds of any of the
foregoing.
"Inventory" has the meaning set forth in Section 3.01(h) hereof.
"Issuers" shall mean, collectively, the respective corporations
identified beneath the names of the Debtors on Schedule l hereto under the
caption "Issuers," together with any corporation created or acquired after
the date hereof, the capital stock of which is required to be pledged
hereunder pursuant to this Agreement or the Credit Agreement.
"LLC" shall mean, collectively, the respective limited liability
companies identified beneath the name of the Debtors on Schedule 1 hereto
under the caption "LLCs", together with any limited liability company
created or acquired after the date hereof, the Interests in which are
required to be pledged hereunder pursuant to this Agreement or the Credit
Agreement.
"Motor Vehicles" shall mean motor vehicles, tractors, trailers and
other like property, whether or not the title thereto is governed by a
certificate of title or ownership.
"Partnership" shall mean, collectively, the respective partnerships
identified beneath the name of the Debtors on Schedule 1 hereto under the
caption "Partnerships", together with any partnerships created or acquired
after the date hereof, the Partnership Interests in which are required to be
pledged hereunder pursuant to this Agreement or the Credit Agreement.
<PAGE>
"Partnership Interests" shall mean, as to any Debtor (i) all right,
title and interest, now existing or hereafter acquired, of such Debtor in
any Partnership but not any of its obligations from time to time as a
partner (unless the Administrative Agent shall become a partner as a result
of its exercise of remedies herein) of any Partnership; (ii) any and all
moneys due and to become due to such Debtor now or in the future by way of a
distribution made to such Debtor in its capacity as a partner of any
Partnership; (iii) any other property of any Partnership to which such
Debtor now or in the future may be entitled in its capacity as a partner of
any Partnership by way of distribution, return of capital or otherwise;
(iv) any other claim in respect of any Partnership to which such Debtor now
or in the future may be entitled in its capacity as a partner of any
Partnership and its property, including any rights under any partnership
agreement or other document governing or pertaining to such interests;
(v) the certificates, if any, representing all such rights and interests;
(vi) all rights of such Debtor under each partnership agreement or limited
partnership agreement of each Partnership; and (vii) to the extent not
otherwise included, all Proceeds of any of the foregoing.
"Patent Collateral" shall mean all Patents, whether now owned or
hereafter acquired by any Debtor, including each Patent identified in
Schedule 3 hereto.
"Patents" shall mean all patents and patent applications, including
without limitation, the inventions and improvements described and claimed
therein together with the reissues, divisions, continuations, renewals,
extensions and continuations-in-part thereof, all income, royalties, damages
and payments now or hereafter due and/or payable under and with respect
thereto, including, without limitation, damages and payments for past or
future infringements thereof, the right to sue for past, present and future
infringements thereof, and all rights corresponding thereto throughout the
world.
"Pledged Collateral" has the meaning set forth in Section 3.01 hereof.
"Pledged Interests" has the meaning set forth in Section 3.01(d)
hereof.
"Pledged Obligations" shall mean all of each Debtor's right, title and
interest, if any, in and to any and all obligations owed to such Debtor by
any Person, whether now existing or hereafter incurred, and in and to all
collateral granted to such Debtor or for the benefit of such Debtor as
collateral security for such obligations.
"Pledged Securities" shall mean the Pledged Interests and the Pledged
Stock, collectively.
"Pledged Stock" has the meaning set forth in Section 3.01(a) hereof.
"Proceeds" shall mean any "proceeds", as such term is defined in
Section 9.306 of the UCC and, in any event, shall include, but not be
limited to, (a) any and all proceeds of any insurance, indemnity, warranty,
or guaranty payable to any Debtor from time to time with respect to any of
the Pledged Collateral, (b) any and all payments (in any form whatsoever)
made or due and payable to any Debtor from time to time in connection with
any requisition, confiscation, condemnation, seizure, or forfeiture of all
or any part of the Pledged Collateral by any Governmental Authority (or any
person acting under color of Governmental Authority), and (c) any and all
other amounts from time to time paid or payable under or in connection with
any of the Pledged Collateral.
<PAGE>
"Secured Obligations" shall mean the "Obligations" (as defined in the
Credit Agreement), and each applicable Debtor's guarantee of the
Obligations, including, without limitation, all present and future
indebtedness, liabilities, and obligations of Debtors arising under this
Agreement, and all present and future costs, attorneys' fees, and expenses
reasonably incurred by the Administrative Agent or any Lender to enforce any
Debtor's or any other obligor's payment of any of the Obligations,
including, without limitation (to the extent lawful), all present and future
amounts that would become due but for the operation of '' 502 or 506 or any
other provision of Title 11 of the United States Code and all present and
future accrued and unpaid interest (including, without limitation, all post-
petition interest if any Debtor voluntarily or involuntarily becomes subject
to Debtor Law).
"Secured Party" shall mean each of, and "Secured Parties" means all of,
the Administrative Agent and the Lenders.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Stock and Interests Collateral" shall mean, collectively, the Pledged
Collateral described in clauses (a) through (e) of Section 3.01 hereof and
the Proceeds of any such property and, to the extent related to any such
property or such Proceeds, all books, correspondence, credit files, records,
invoices and other papers.
"Trademark Collateral" shall mean all Trademarks, whether now owned or
hereafter acquired by any Debtor, including each Trademark identified in
Schedule 4 hereto. Notwithstanding the foregoing, the Trademark Collateral
does not and shall not include any Trademark that would be rendered invalid,
abandoned, void or unenforceable by reason of its being included as part of
the Trademark Collateral.
"Trademarks" shall mean all trade names, trademarks and service marks,
logos, trademark and service mark registrations, and applications for
trademark and service mark registrations, including, without limitation, all
renewals of trademark and service mark registrations, all rights
corresponding thereto throughout the world, the right to recover for all
past, present and future infringements thereof, all other rights of any kind
whatsoever accruing thereunder or pertaining thereto, together, in each
case, with the product lines and goodwill of the business connected with the
use of, and symbolized by, each such trade name, trademark and service mark.
"Uniform Commercial Code" or "UCC"shall mean the Uniform Commercial
Code as in effect from time to time in the State of Texas.
"Voting Powers" has the meaning set forth in Section 8.17(a)(ii)
hereof.
<PAGE>
Section 2. Debtors Remain Liable. Notwithstanding anything to the
contrary contained herein, (a) each Debtor 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 its rights hereunder shall not release any
Debtor from any of its duties or obligations under the contracts and
agreements included in the Collateral, and (c) none of the Secured Parties
shall have any obligation or liability under any of the contracts and
agreements included in the Collateral by reason of this Agreement, nor shall
any Secured Party be obligated to perform any of the obligations or duties
of any Debtor thereunder or to take any action to collect or enforce any
claim for payment assigned hereunder.
Section 3. Pledged Collateral; Registration of Pledge of Pledged
Interests; Acknowledgments; Delivery of Pledged Securities and Pledged
Obligations.
3.1 Pledged Collateral. As collateral security for the prompt payment
in full when due (whether at stated maturity, by acceleration or otherwise)
of the Secured Obligations, each Debtor hereby pledges to the Administrative
Agent, for the benefit of the Lenders as hereinafter provided, and grants to
the Administrative Agent, for the benefit of the Lenders as hereinafter
provided, a security interest in, all of such Debtor's right, title and
interest in the following property, whether now owned by such Debtor or
hereafter acquired and whether now existing or hereafter coming into
existence (all being collectively referred to herein as "Pledged
Collateral"):
(a) the shares of common stock of the Issuers represented by the
certificates identified in Schedule 1 hereto under the name of such
Debtor and each other corporation hereafter acquired or formed by any
Debtor and all other shares of capital stock of whatever class of the
Issuers now or hereafter owned by such Debtor and all Equity Rights of
any such Issuer owned by any Debtor, in each case together with the
certificates evidencing the same, subject, in the case of any Foreign
Subsidiary, to the limitation that shares of capital stock of any such
Issuer which represent in excess of 65% of the combined voting power of
all classes of capital stock of such Issuer shall not be pledged;
provided, however, that if following a change in the relevant sections
of the Code or the regulations, rules, rulings, notices or other
official pronouncements issued or promulgated thereunder which would
permit a pledge of 66-2/3% or more of the total combined voting power
of all classes of capital stock of any Foreign Subsidiary entitled to
vote without causing the undistributed earnings of such Foreign
Subsidiary as determined for Federal income taxes to be treated as a
deemed dividend to the Debtors for Federal income tax purposes, then
the 65% limitation set forth above shall no longer be applicable and
the Debtors shall duly pledge and deliver to the Administrative Agent
such of the capital stock not theretofore required to be pledged
hereunder (collectively, the "Pledged Stock");
(b) all shares, securities, moneys or property representing a
dividend on any of the Pledged Stock, or representing a distribution or
return of capital upon or in respect of the Pledged Stock, or resulting
from a split-up, revision, reclassification or other like change of the
Pledged Stock or otherwise received in exchange therefor, and any
subscription warrants, rights or options issued to the holders of, or
otherwise in respect of, the Pledged Stock;
<PAGE>
(c) all Pledged Obligations;
(d) all Interests and Partnership Interests now or hereafter
owned by any Debtor and any limited liability company interest,
partnership interest or other ownership or equity securities or
certificate (including, without limitation, any certificate
representing a distribution in connection with any reclassification,
increase or reduction of capital or any certificate issued in
connection with any reorganization), option or rights, whether in
addition to, in substitution of, as a conversion of, or in exchange for
Interests or Partnership Interests, or otherwise in respect thereof
(collectively, the "Pledged Interests");
(e) without affecting the obligations of such Debtor under any
provision prohibiting such action hereunder or under the Credit
Agreement, in the event of any consolidation or merger in which an
Issuer, LLC or Partnership is not the surviving corporation, all shares
of each class of the capital stock of the successor corporation or
interests or certificates of the successor limited liability company or
partnership owned by the Debtors (unless such successor is such Debtor
itself) formed by or resulting from such consolidation or merger;
(f) all accounts and general intangibles (each as defined in the
Uniform Commercial Code) of such Debtor constituting any right to the
payment of money, including (but not limited to) all moneys due and to
become due to such Debtor in respect of any loans or advances or for
Inventory or Equipment or other goods sold or leased or for services
rendered, all moneys due and to become due to such Debtor under any
guarantee (including a letter of credit) of the purchase price of
Inventory or Equipment sold by such Debtor and all tax refunds (such
accounts, general intangibles and moneys due and to become due being
herein collectively called "Accounts");
(g) all instruments, chattel paper or letters of credit (each as
defined in the Uniform Commercial Code) of such Debtor, including
without limitation those evidencing, representing, arising from or
existing in respect of, relating to, or securing or otherwise
supporting the payment of, any of the Accounts or Pledged Obligations,
including (but not limited to) promissory notes, drafts, bills of
exchange and trade acceptances (herein collectively called
"Instruments");
(h) all inventory (as defined in the Uniform Commercial Code) of
such Debtor, all goods obtained by such Debtor in exchange for such
inventory, any products made or processed from such inventory including
all substances, if any, commingled therewith or added thereto, and any
such inventory as is temporarily out of such Debtor's custody or
possession, including inventory held by others on consignment,
inventory on the premises of others and items in transit (herein
collectively called "Inventory");
(i) all Intellectual Property;
(j) all equipment (as defined in the Uniform Commercial Code) of
such Debtor (herein collectively called "Equipment");
(k) all Contracts;
<PAGE>
(l) all documents of title (as defined in the Uniform Commercial
Code) or other receipts of such Debtor covering, evidencing or
representing Inventory or Equipment (herein collectively called
"Documents");
(m) all rights, claims and benefits of such Debtor against any
Person arising out of, relating to or in connection with Inventory or
Equipment purchased by such Debtor, including, without limitation, any
such rights, claims or benefits against any Person storing or
transporting such Inventory or Equipment;
(n) all other accounts (as defined in the Uniform Commercial
Code) and General Intangibles, not otherwise included in the foregoing
clauses of this Section 3.01; and
(o) all other tangible and intangible personal property and
fixtures of such Debtor, including without limitation all Proceeds,
products, offspring, accessions, rents, profits, income, benefits,
substitutions and replacements of and to any of the property of such
Debtor described in the preceding clauses of this Section 3.01, and, to
the extent related to any property described in such clauses or such
Proceeds, products and accessions, all books, correspondence, credit
files, records, invoices and other papers, including without limitation
all tapes, cards, computer runs and other papers and documents in the
possession or under the control of such Debtor or any computer bureau
or service company from time to time acting for such Debtor.
Notwithstanding the foregoing, the Pledged Collateral does not and shall not
include any contract to which any Debtor is a party which would be rendered
void or unenforceable by reason of its being included as part of the Pledged
Collateral or which is not assignable by its terms, unless a consent to the
assignment has been received by such Debtor and/or the Administrative Agent.
3.2 Registration of Pledge. Concurrently with the execution of this
Agreement and with the creation or acquisition of any securities or
interests in any Issuer, LLC or Partnership the securities or interests in
which are required to be pledged hereunder, each Debtor shall deliver to the
Administrative Agent (i) an Initial Transaction Statement in the form of
Exhibit A hereto confirming that such Debtor has registered the pledge of
its Interests and Partnership Interests effected by this Agreement on the
books of each applicable LLC or Partnership in which it has an Interest or a
Partnership Interest and (ii) an Acknowledgment in the form of Exhibit B
hereto of each Issuer, LLC or Partnership whose securities or interests are
Pledged Securities hereunder.
3.3 Stock Certificates. Each Debtor hereby delivers to the
Administrative Agent all of the certificates evidencing the Pledged Stock
owned by such Debtor which is represented by certificates, endorsed in blank
or accompanied with appropriate undated stock powers executed in blank. Each
Debtor has caused the Lien of the Administrative Agent in and to the Pledged
Stock to be registered upon the books of the Issuers of the Pledged Stock.
If at any time any Pledged Stock which is not represented by a certificate
as of the date of this Agreement shall be represented by one or more
certificates, then each Debtor shall promptly deliver the same to the
Administrative Agent accompanied by stock powers duly executed in blank,
with signature properly guaranteed. All other shares of Pledged Stock
subsequently acquired by each Debtor shall be pledged to the Administrative
Agent and if represented by a certificate, certificates representing the
same shall be delivered to the Administrative Agent contemporaneously with
the acquisition thereof, accompanied by stock powers duly executed in blank.
<PAGE>
3.4 Financing Statements; Registration; Certificates. Each Debtor has
executed and delivered to the Administrative Agent such financing statements
as the Administrative Agent has requested. Each Debtor has caused the Lien
of the Administrative Agent in and to the Interests and the Partnership
Interests to be registered upon the books of the issuers of such Interests
and Partnership Interests. If at any time any Interests or Partnership
Interests shall be represented by one or more certificates or by any
documents that are instruments (as defined in the Uniform Commercial Code),
then the appropriate Debtor shall promptly deliver the same to the
Administrative Agent accompanied by duly executed transfer powers endorsed
in blank respecting such certificates or documents.
3.5 Pledged Obligations. Each Debtor hereby delivers to the
Administrative Agent all of the promissory notes, instruments and agreements
evidencing the Pledged Obligations held by such Debtor in suitable form for
transfer by endorsement and delivery or accompanied by duly executed
instruments of transfer or assignment in blank. If any Debtor shall become
entitled to receive or shall receive any promissory notes, instruments or
agreements constituting Pledged Collateral after the date hereof (including,
without limitation, any certificate representing any distribution in
connection with any recapitalization, reclassification or increase or
reduction of capital, or issued in connection with any reorganization of the
obligor on any Pledged Obligations) in respect of the Pledged Obligations,
such Debtor agrees: (i) to accept the same as the agent of the
Administrative Agent, (ii) to hold the same in trust on behalf of and for
the benefit of the Administrative Agent, and (iii) to deliver any and all
promissory notes, instruments or agreements evidencing the same to the
Administrative Agent within ten (10) days following the receipt thereof by
such Debtor, in the exact form received, with the endorsement in blank of
such Debtor when necessary and with an appropriate undated instrument of
transfer or assignment duly executed in blank (with signature properly
guaranteed), to be held by the Administrative Agent subject to the terms of
this Agreement, as additional Pledged Collateral.
3.6 Updated Schedules. Each delivery of Pledged Securities after the
date hereof shall be accompanied by an updated Schedule1 hereto, which shall
include a description of the Pledged Securities theretofore and then being
pledged hereunder, which schedule shall be attached hereto and made apart
hereof and shall supersede any prior Schedule 1 hereto.
Section 4. Special Provisions Concerning Trademarks
4.1 Representations and Warranties. Each Debtor represents and
warrants that it is the true and lawful exclusive owner of the Trademarks
listed as being owned by it in Schedule 4 hereto and that, as of the date
hereof, the listed Trademarks include all the United States federal and
foreign registrations or applications registered in the United States Patent
and Trademark Office or the equivalent government agency or office in any
applicable foreign jurisdiction which are necessary for such Debtor's
business as currently operated. Each Debtor represents and warrants that it
owns or is licensed to use or is not prohibited from using all Trademarks
that it uses. Each Debtor further warrants that it is aware of no third
party claim (which could have a Material Adverse Effect) that any aspect of
such Debtor's present or contemplated business operations infringes or will
infringe any mark. Each Debtor represents and warrants that it is the owner
of record of all registrations and applications listed as being owned by it
in Schedule 4 hereto and that such registrations are valid, subsisting, have
not been canceled and that such Debtor is not aware of any third party claim
<PAGE>
(which could have a Material Adverse Effect) that any such registration is
invalid or unenforceable. Each Debtor hereby grants to the Administrative
Agent an absolute power of attorney to sign, upon the occurrence and during
the continuance of an Event of Default, any document which may be required
by the United States Patent and Trademark Office or any equivalent
government agency or office of any applicable foreign jurisdiction in order
to effect an absolute assignment of all right, title and interest in each
such Trademark and associated goodwill, and record the same.
4.2 Licenses and Assignments. Other than the license agreements
listed on Schedule 5 hereto and any extensions or renewals thereof, each
Debtor hereby agrees not to divest itself of any right under any Trademark
except those such Debtor reasonably determines are not necessary for the
conduct of its or its Subsidiaries' business.
4.3 Infringements. Each Debtor agrees, promptly upon learning
thereof, to notify the Administrative Agent in writing of the name and
address of, and to furnish such pertinent information that may be available
with respect to, any party who may be infringing or otherwise violating any
of such Debtor's rights in and to any Trademark, or with respect to any
party claiming that such Debtor's use of any Trademark violates any property
right of that party, in each case to the extent that such Debtor reasonably
believes that such infringement or violation is material to its business or
could result in a Material Adverse Effect. Each Debtor further agrees, if
consistent with good business practice, diligently to prosecute any Person
infringing any Trademark to the extent that such Debtor reasonably believes
that such infringement is material to its business or could result in a
Material Adverse Effect.
4.4 Preservation of Trademarks. To the extent the failure to do so
would cause a Material Adverse Effect and such Debtor reasonably believes it
to be consistent with good business practice, each Debtor agrees to use its
Trademarks in interstate commerce during the time in which this Agreement is
in effect, sufficiently to preserve such Trademarks as trademarks or service
marks registered under the laws of the United States or applicable foreign
jurisdictions.
4.5 Maintenance of Registration. To the extent the failure to do so
would cause a Material Adverse Effect and such Debtor reasonably believes it
to be consistent with good business practice, each Debtor shall, at its own
expense, diligently process all documents required by the Trademark Act of
1946, 15 U.S.C. '' 1051 et seq. to maintain trademark registration,
including but not limited to affidavits of use and applications for renewals
of registration in the United States Patent and Trademark Office for all of
its Trademarks pursuant to 15 U.S.C. '' 1058(a), 1059 and 1065, and shall
pay all fees and disbursements in connection therewith and shall not abandon
any such filing of affidavit of use or any such application of renewal prior
to the exhaustion of all reasonable administrative and judicial remedies
without prior written consent of the Administrative Agent.
4.6 Future Registered Trademarks. If any Trademark registration is
issued hereafter to any Debtor as a result of any application now or
hereafter pending before the United States Patent and Trademark Office or
any equivalent government agency or office in any applicable foreign
jurisdiction, within 30 days of receipt of such registration such Debtor
shall deliver a copy of such registration, and a grant of security in such
Trademark to the Administrative Agent, confirming the grant thereof
hereunder, the form of such confirmatory grant to be satisfactory to the
Administrative Agent.
<PAGE>
4.7 Remedies. If an Event of Default shall occur and be continuing,
the Administrative Agent may, after five days' written notice to each
Debtor, take any or all of the following actions: (a) declare the entire
right, title and interest of each Debtor in and to each of the Trademarks
and the goodwill of the business associated therewith, together with all
trademark rights and rights of protection to the same, vested, in which
event such rights, title and interest shall immediately vest, in the
Administrative Agent for the benefit of the Lenders, in which case the
Administrative Agent shall be entitled to exercise the power of attorney
referred to in Section 9.01 to execute, cause to be acknowledged and
notarized and record said absolute assignment with the applicable agency;
(b) take and use or sell the Trademarks and the goodwill of each Debtor's
businesses symbolized by the Trademarks and the right to carry on the
businesses and use the assets of such Debtor in connection with which the
Trademarks have been used; and (c) direct each Debtor to refrain, in which
event such Debtor shall refrain, from using the Trademarks in any manner
whatsoever, directly or indirectly, and execute such other and further
documents that the Administrative Agent may request to further confirm this
and to transfer ownership of the Trademarks and registrations and any
pending trademark application in the United States Patent and Trademark
Office or any equivalent government agency or office in any foreign
jurisdiction to the Administrative Agent.
Section 5. Special Provisions Concerning Patents
5.1 Representations and Warranties. Each Debtor represents and
warrants that it is the true and lawful exclusive owner of all rights in the
Patents listed as being owned by it in Schedule 3 hereto and that, as of the
date hereof, said Patents include all the patents and applications for
patents that such Debtor now owns which are necessary for such Debtor's
business as currently operated. Each Debtor represents and warrants that it
owns or is licensed to practice under all Patents that it now uses or
practices under. Each Debtor further warrants that it is aware of no third
party claim (which could have a Material Adverse Effect) that any aspect of
such Debtor's present or contemplated business operations infringes or will
infringe any patent. Each Debtor hereby grants to the Administrative Agent
an absolute power of attorney to sign, upon the occurrence and during the
continuance of any Event of Default, any document which may be required by
the United States Patent and Trademark Office or the equivalent government
agency or office of any applicable foreign jurisdiction, in order to effect
an absolute assignment of all right, title and interest in each Patent and
record the same.
5.2 Licenses and Assignments. Other than the license agreements
listed on Schedule 5 hereto and any extensions or renewals thereof, each
Debtor hereby agrees not to divest itself of any right under any Patent
except those Patents such Debtor reasonably determines are not necessary for
the conduct of its or its Subsidiaries' business.
5.3 Infringements. Each Debtor agrees, promptly upon learning
thereof, to furnish the Administrative Agent in writing with all pertinent
information available to such Debtor with respect to any infringement or
other violation of such Debtor's rights in any Patent, or with respect to
any claim that practice of any Patent violates any property rights of that
party, in each case to the extent that such Debtor reasonably believes that
such infringement or violation is material to its business or could result
in a Material Adverse Effect. Each Debtor further agrees, consistent with
good business practice and absent direction of the Administrative Agent to
<PAGE>
the contrary (which direction shall only be given if an Event of Default
shall have occurred and be continuing), diligently to prosecute any Person
infringing any Patent to the extent that such Debtor reasonably believes
that such infringement is material to its business or could result in a
Material Adverse Effect.
5.4 Maintenance of Patents. At its own expense, each Debtor shall
make timely payment of all post-issuance fees required pursuant to 35 U.S.C.
' 41 to maintain in force rights under each Patent to the extent such Debtor
reasonably believes it to be consistent with good business practice and
failure to do so would cause a Material Adverse Effect.
5.5 Prosecution of Patent Application. At its own expense, each
Debtor shall diligently prosecute all applications for Patents listed as
being owned by it in Schedule 3 hereto and shall not abandon any such
application prior to exhaustion of all reasonable administrative and
judicial remedies, to the extent such Debtor reasonably believes it to be
consistent with good business practice and failure to do so would cause a
Material Adverse Effect.
5.6 Other Patents. Within thirty (30) days of acquisition of a
Patent, or of filing of an application for a Patent, each Debtor shall
deliver to the Administrative Agent a copy of said Patent or such
application, as the case may be, with a grant of security as to such Patent,
as the case may be, confirming the grant thereof hereunder, the form of such
confirmatory grant to be satisfactory to the Administrative Agent.
5.7 Remedies. If an Event of Default shall occur and be continuing,
the Administrative Agent may after five days' written notice to each Debtor,
take any or all of the following actions: (a) declare the entire right,
title, and interest of each Debtor in each of the Patents vested, in which
event such right, title, and interest shall immediately vest in the
Administrative Agent for the benefit of the Lenders, in which case the
Administrative Agent shall be entitled to exercise the power of attorney
referred to in Section 9.01 to execute, cause to be acknowledged and
notarized and record said absolute assignment with the applicable agency;
(b) take and practice or sell the Patents; and (c) direct each Debtor to
refrain, in which event such Debtor shall refrain, from practicing the
Patents directly or indirectly, and such Debtor shall execute such other and
further documents as the Administrative Agent may request further to confirm
this and to transfer ownership of the Patents to the Administrative Agent
for the benefit of the Lenders.
Section 6. Special Provisions Concerning Copyrights
6.1 Representations and Warranties. Each Debtor represents and
warrants that it is the true and lawful exclusive owner of the Copyrights
listed as being owned by it in Schedule 2 hereto and that, as of the date
hereof, the listed Copyrights include all the United States federal and
foreign registrations or applications registered in the appropriate
government agency or office in any applicable foreign jurisdiction which are
necessary for such Debtor's business as currently operated. Each Debtor
represents and warrants that it owns or is licensed to use or is not
prohibited from using all Copyrights that it uses. Each Debtor further
warrants that it is aware of no third party claim (which could have a
Material Adverse Effect) that any aspect of such Debtor's present or
contemplated business operations infringes. Each Debtor represents and
warrants that it is the owner of record of all registrations and
<PAGE>
applications listed as being owned by it in Schedule 2 hereto and that such
registrations are valid, subsisting, have not been canceled and that such
Debtor is not aware of any third party claim (which could have a Material
Adverse Effect) that any such registration is invalid or unenforceable.
Each Debtor hereby grants to the Administrative Agent an absolute power of
attorney to sign, upon the occurrence and during the continuance of an Event
of Default, any document which may be required by the appropriate government
agency or office of any applicable foreign jurisdiction in order to effect
an absolute assignment of all right, title and interest in each such
Copyright and associated goodwill, and record the same.
6.2 Licenses and Assignments. Other than the license agreements
listed on Schedule 5 hereto and any extensions or renewals thereof, each
Debtor hereby agrees not to divest itself of any right under any Copyright
except those such Debtor reasonably determines are not necessary for the
conduct of its or its Subsidiaries' business.
6.3 Infringements. Each Debtor agrees, promptly upon learning
thereof, to notify the Administrative Agent in writing of the name and
address of, and to furnish such pertinent information that may be available
with respect to, any party who may be infringing or otherwise violating any
of such Debtor's rights in and to any Copyright, or with respect to any
party claiming that such Debtor's use of any Copyright violates any property
right of that party, in each case to the extent that such Debtor reasonably
believes that such infringement or violation is material to its business or
could result in a Material Adverse Effect. Each Debtor further agrees, if
consistent with good business practice, diligently to prosecute any Person
infringing any Copyright to the extent that such Debtor reasonably believes
that such infringement is material to its business or could result in a
Material Adverse Effect.
6.4 Preservation of Copyrights. To the extent the failure to do so
would cause a Material Adverse Effect and such Debtor reasonably believes it
to be consistent with good business practice, each Debtor agrees to use its
Copyrights in interstate commerce during the time in which this Agreement is
in effect, sufficiently to preserve such Copyrights as copyrights registered
under the laws of the United States or applicable foreign jurisdictions.
6.5 Maintenance of Registration. To the extent the failure to do so
would cause a Material Adverse Effect and such Debtor reasonably believes it
to be consistent with good business practice, each Debtor shall, at its own
expense, diligently process all documents required to maintain copyright
registration, including but not limited to affidavits of use and
applications for renewals of registration, and shall pay all fees and
disbursements in connection therewith and shall not abandon any such filing
of affidavit of use or any such application of renewal prior to the
exhaustion of all reasonable administrative and judicial remedies without
prior written consent of the Administrative Agent.
6.6 Future Registered Copyrights. If any Copyright registration is
issued hereafter to any Debtor as a result of any application now or
hereafter pending before the appropriate government agency or office in any
applicable foreign jurisdiction, within 30 days of receipt of such
registration such Debtor shall deliver a copy of such registration, and a
grant of security in such Copyright to the Administrative Agent, confirming
the grant thereof hereunder, the form of such confirmatory grant to be
satisfactory to the Administrative Agent.
<PAGE>
6.7 Remedies. If an Event of Default shall occur and be continuing,
the Administrative Agent may, after five days' written notice to each
Debtor, take any or all of the following actions: (a) declare the entire
right, title and interest of each Debtor in and to each of the Copyrights
and the goodwill of the business associated therewith, together with all
copyright rights and rights of protection to the same, vested, in which
event such rights, title and interest shall immediately vest, in the
Administrative Agent for the benefit of the Lenders, in which case the
Administrative Agent shall be entitled to exercise the power of attorney
referred to in Section 9.01 to execute, cause to be acknowledged and
notarized and record said absolute assignment with the applicable agency;
(b) take and use or sell the Copyrights and the goodwill of each Debtor's
businesses symbolized by the Copyrights and the right to carry on the
businesses and use the assets of such Debtor in connection with which the
Copyrights have been used; and (c) direct each Debtor to refrain, in which
event such Debtor shall refrain, from using the Copyrights in any manner
whatsoever, directly or indirectly, and execute such other and further
documents that the Administrative Agent may request to further confirm this
and to transfer ownership of the Copyrights and registrations and any
pending copyright application in the appropriate government agency or office
in any foreign jurisdiction to the Administrative Agent.
Section 7. Representations and Warranties
Each Debtor represents and warrants to the Administrative Agent that:
7.1 Pledged Collateral. Such Debtor is the sole beneficial owner of
the Pledged Collateral (and, with respect to the Pledged Securities, sole
record owner thereof) in which it purports to grant a security interest
pursuant to Section 3 hereof and no Lien exists or will exist upon such
Pledged Collateral at any time (and no right or option to acquire the same
exists in favor of any other Person), except for the pledge and security
interest in favor of the Administrative Agent for the benefit of the Lenders
created or provided for herein, which pledge and security interest shall
constitute a first priority perfected pledge and security interest in and to
all of such Pledged Collateral; and, subject to Section 3 and Section 8.17
hereof, will cause any and all Pledged Securities, to the extent
certificated, whether for value paid by any Debtor or otherwise, to be
forthwith deposited with the Administrative Agent and pledged or assigned
hereunder.
7.2 Pledged Stock. The Pledged Stock represented by the certificates
identified under the name of such Debtor in Schedule 1 hereto is, and all
other Pledged Stock in which such Debtor shall hereafter grant a security
interest pursuant to Section 3 hereof will be, duly authorized, validly
existing, fully paid and non-assessable and none of such Pledged Stock is or
will be subject to any contractual restriction, or any restriction under the
charter or by-laws of the respective issuer of such Pledged stock, upon the
transfer of such Pledged Stock (except for any such restriction contained
herein or in the Credit Agreement or as permitted by the Credit Agreement).
7.3 Ownership of Pledged Stock. The Pledged Stock represented by the
certificates identified under the name of such Debtor in Schedule 1 hereto
constitutes (a) with respect to each Subsidiary other than a Foreign
Subsidiary all of the issued and outstanding shares of capital stock of any
class of such issuers beneficially owned by such Debtor and (b) with respect
to each Foreign Subsidiary, all of the issued and outstanding shares of
capital stock of any class of such Issuers beneficially owned by such Debtor
<PAGE>
which in the aggregate do not represent more than 65% of the total combined
voting power of all classes of capital stock of any such issuer (in each
case, whether or not registered in the name of such Debtor) and said
Schedule 1 correctly identifies, as at the date hereof, or, with respect to
any Issuer created or acquired after the date hereof, as of the date of
pledge hereunder, the respective Issuers of such Pledged Stock, the
respective class and par value of the shares comprising such Pledged Stock
and the respective number of shares (and registered owners thereof)
represented by each such certificate.
7.4 Intellectual Property Agreements. Schedule 5 hereto sets forth a
complete and correct list of all material licenses and other user agreements
included in the Intellectual Property on the date hereof.
7.5 Intellectual Property Proceedings. To such Debtor's knowledge, on
and as of the date hereof: (a) except as set forth in Schedule 5.06 to the
Credit Agreement, there is no violation that could constitute a Material
Adverse Effect by others of any right of such Debtor with respect to any
Copyright, Patent or Trademark listed in Schedules 2, 3 and 4 hereto,
respectively, under the name of such Debtor and (b) such Debtor is not
infringing in any respect that could constitute a Material Adverse Effect
upon any Copyright, Patent or Trademark of any other Person; and no
proceedings have been instituted or are pending against such Debtor or, to
such Debtor's knowledge, threatened, and no claim against such Debtor has
been received by such Debtor, alleging any such violation, except as may be
set forth in said Schedule 5.06.
7.6 Fair Labor Standards. To the best of each Debtor's knowledge, any
goods now or hereafter produced by such Debtor or any of its Subsidiaries
included in the Pledged Collateral have been and will be produced in
compliance with the requirements of the Fair Labor Standards Act of 1938, as
amended.
7.7 Pledged Interests. The Interests of each Debtor identified under
the name of such Debtor on Schedule 1 hereto pledged hereunder, and in
respect of which a security interest has been granted hereunder, constitute
all of the issued and outstanding Interests, limited liability company
interests or other ownership or equity interests in any LLC owned by the
Debtors; the Partnership Interests of each Debtor identified under the name
of such Debtor on Schedule 1 hereto pledged hereunder, and in respect of
which a security interest has been granted hereunder, constitute all of the
issued and outstanding Partnership Interests or other ownership or equity
interests in any Partnership owned by the Debtors; and none of the Pledged
Interests is or will be subject to any contractual restriction, or any
restriction under the organizational or other organic documents of the
respective issuer of such Pledged Interests upon the transfer of such
Pledged Interests (except for any such restriction contained herein or in
the Credit Agreement or as permitted by the Credit Agreement). The Pledged
Interests have been duly authorized and validly issued, and all payments
required to be made by any holder of such Pledged Interests in respect of
such interests have been made.
7.8 Inventory, Equipment, Pledged Obligations. All Inventory and
Equipment (except for Inventory and Equipment which is not, individually or
in the aggregate, material in value or to the business of any Debtor) of
each Debtor are located at the locations specified on Schedule 6 hereto or,
upon thirty (30) days' prior written notice to the Administrative Agent, at
other locations within the continental United States of America in the
<PAGE>
ordinary course of each Debtor's business so long as all actions have been
taken to assure the continued perfection and priority of the Administrative
Agent's security interest therein. Each Debtor has exclusive possession and
control of its Inventory and Equipment. None of the Inventory or Equipment
of any Debtor is evidenced by a Document (including, without limitation, a
negotiable document of title). All Instruments and other Pledged
Obligations of each Debtor have been endorsed and delivered to the
Administrative Agent.
7.9 Not Margin Stock. None of the Pledged Stock constitutes margin
stock, as defined in Regulation U of the Board of Governors of the Federal
Reserve System.
7.10 No Liens. No security agreement, financing statement, equivalent
security or lien instrument or continuation statement covering all or part
of the Pledged Collateral is on file or of record in any public office,
except such as may have been or will be filed in favor of the Administrative
Agent pursuant to this Agreement.
7.11 Perfection by Filing. Upon filing of the financing statements in
the offices referred to on Schedule 1 hereto, the security interest created
by this Agreement in all Pledged Collateral other than the Pledged
Securities, the Pledged Obligations and Instruments will constitute a valid,
perfected first priority security interest in such Pledged Collateral to the
extent provided in the Uniform Commercial Code, enforceable in accordance
with its terms against all creditors of such Debtor and any Persons
purporting to purchase any such Pledged Collateral from such Debtor, except
as enforcement of such security interest may be affected by bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights generally, general
equitable principles (whether considered in a proceeding in equity or at
law).
7.12 Uncertified Interests. The Interests in each LLC and the
Partnership Interests in each Partnership are not represented by
certificates.
7.13 Business Locations. Each Debtor's principal place of business,
chief executive office and the place where its records concerning the
Pledged Collateral are kept is at the address listed on Schedule 8 hereto.
7.14 Governmental Approvals. No consent or approval of any
Governmental Authority or any securities exchange or any other Person was or
is necessary for the validity of the security interest granted herein and
the pledge effected hereby.
7.15 Pledged Securities; Perfection. By virtue of the execution and
delivery by the Debtors of this Agreement, when the Pledged Securities,
certificates, instruments or other documents representing or evidencing such
Pledged Securities are delivered to the Administrative Agent in accordance
with this Agreement, or, in the case such Pledged Securities constituting
uncertificated securities, when the steps required by Articles 8 and 9 of
the Uniform Commercial Code have been taken to perfect the Administrative
Agent's security interest therein, the security interest created by this
Agreement in the Pledged Securities to the extent provided in the Uniform
Commercial Code, enforceable in accordance with its terms against all
creditors of such Debtor and any Person purporting to purchase any such
<PAGE>
Pledged Collateral from such Debtor, except as enforcement of such security
interest may be affected by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles (whether
considered in a proceeding in equity or at law).
7.16 No Restrictions. There are no restrictions upon the Voting Rights
associated with, or upon the transfer of, any of the Pledged Securities.
The Pledged Securities are not subject to any put, call, option or other
right in favor of any other Person whatsoever.
7.17 No Conflicts. Neither the execution and delivery of this
Agreement by each Debtor nor the consummation of the transactions herein
contemplated nor the fulfillment of the terms hereof (a) violates any
Debtor's, or any of its Subsidiaries', charter or by-laws or any
organizational or other document of any Issuer, LLC or Partnership,
(b) violates the terms of any agreement, indenture, mortgage, deed of trust,
equipment lease, instrument or other document to which any Debtor, or any of
its Subsidiaries, is a party, or by which any of them may be bound or to
which any of their properties or assets may be subject, which violation or
conflict would have a Material Adverse Effect, or a material adverse effect
on the value of the Pledged Collateral or a material adverse effect on the
security interests hereunder, or (c) conflicts with any material law, order,
rule or regulation applicable to any Debtor, or any of its Subsidiaries, of
any Governmental Authority having jurisdiction over any Debtor, or any of
its Subsidiaries, or their Properties, or (d) results in or requires the
creation or imposition of any Lien (other than the Lien contemplated hereby)
upon or with respect to any of the property now owned or hereafter acquired
by any Debtor, or any of its Subsidiaries.
7.18 Voting Agreements. There are no voting trusts or other agreements
or understandings to which any Debtor is a party or by which it may be bound
with respect to voting, managerial consent, election or other rights of any
Debtor relating to the Pledged Securities.
7.19 Pledged Interests; Legal Matters. Such Debtor is not in default
in the payment of any portion of any mandatory capital contribution, if any,
required to be made under any agreement to which such Debtor is a party
relating to its Interests or Partnership Interests, and such Debtor is not
in violation of any other material provisions of any such agreement to which
such Debtor is a party, or otherwise in default or violation thereunder; to
the best knowledge of the Debtors no Interest or Partnership Interest is
subject to any defense, offset or counterclaim, nor have any of the
foregoing been asserted or alleged against such Debtor by any Person with
respect thereto and as of the date hereof, there are no certificates,
instruments, documents or other writings (other than the operating
agreements, partnership agreements and certificates, if any, delivered to
the Administrative Agent) which evidence any Interest or Partnership
Interest of such Debtor.
<PAGE>
7.20 Accounts. Unless a Debtor has given the Administrative Agent
written notice to the contrary, whenever the security interest granted
hereunder attaches to an Account, each Debtor shall be deemed to have
represented and warranted to the Administrative Agent as to each and all of
its Accounts that (a) each Account is genuine and in all respects what it
purports to be, (b) each Account represents the legal, valid, and binding
obligation of the account debtor evidencing indebtedness unpaid and owed by
such account debtor arising out of the performance of labor or services by
such Debtor or the sale or lease of goods by such Debtor, (c) the amount of
each Account represented as owing is the correct amount actually and
unconditionally owing except for normal trade discounts granted in the
ordinary course of business, and (d) to the best of Debtor's knowledge, no
Account is subject to any offset, counterclaim, or other defense.
7.21 Trade Names; Information Certificates. Except as set forth on
Schedule 9 hereto, no Debtor has within the past five years done business
under any name or trade name other than its legal name set forth at the
beginning of this Agreement. All information provided by each Debtor in its
Information Certificate delivered to the Administrative Agent or its counsel
is true, correct and complete in all material respects.
7.22 Organization; Powers. Each Debtor is duly organized, validly
existing, and in good standing under the laws of the state of its
organization. Each Debtor has the power and authority to execute, deliver,
and perform this Agreement, and the execution, delivery, and performance of
this Agreement by such Debtor have been authorized by all necessary action
on the part of such Debtor.
Section 8. Covenants
The Debtors jointly and severally covenant and agree with the
Administrative Agent that until the Secured Obligations are paid and
performed in full and all commitments and other obligations of the Lenders
to the Borrower have been terminated:
8.1 Maintenance. Each Debtor shall maintain the Pledged Collateral in
good operating condition and repair, and no Debtor shall permit any waste or
destruction of the Pledged Collateral or any part thereof except for the
ordinary wear and tear of its intended primary use. No Debtor shall use or
permit the Pledged Collateral to be used in violation of any law or
inconsistently with the terms of any policy of insurance, if such use could
cause a Material Adverse Effect. No Debtor shall use or permit the Pledged
Collateral to be used in any manner or for any purpose that would impair the
value of the Pledged Collateral or expose the Pledged Collateral to unusual
risk.
8.2 Encumbrances. No Debtor shall create, permit, or suffer to exist,
and each Debtor shall defend the Pledged Collateral against, any Lien on the
Pledged Collateral except Permitted Liens, and shall defend such Debtor's
rights in the Pledged Collateral and the Administrative Agent's security
interest in the Pledged Collateral against the claims of all Persons.
8.3 Modification of Pledged Collateral. No Debtor shall do anything
to impair the rights of the Administrative Agent in the Pledged Collateral.
Without the prior written consent of the Administrative Agent, no Debtor
shall (a) grant any extension of time for any payment with respect to the
Pledged Collateral, other than trade extensions granted in the ordinary
course of business, (b) compromise, compound, or settle any of the Pledged
<PAGE>
Collateral, (c) release in whole or in part any person or entity liable for
payment with respect to the Pledged Collateral, (d) allow any credit or
discount for payment with respect to the Pledged Collateral other than
normal trade discounts granted in the ordinary course of business and other
adjustments, such as bad debt expense, made in the ordinary course of
business, (e) release any Lien securing the Pledged Collateral, or
(f) otherwise amend or modify any of the Pledged Collateral in any material
manner.
8.4 Disposition of Pledged Collateral. No Debtor shall sell, lease,
assign, transfer or otherwise dispose of any Pledged Collateral, except as
expressly permitted by the Credit Agreement.
8.5 Further Assurances. At any time and from time to time, upon the
reasonable request of the Administrative Agent, and at the sole expense of
the Debtors, each Debtor shall promptly execute and deliver all such further
instruments and documents and take such further action as the Administrative
Agent may deem necessary or desirable to preserve and perfect its security
interest in the Pledged Collateral and carry out the provisions and purposes
of this Agreement, including, without limitation, the execution and filing
of such financing statements as the Administrative Agent may require. A
carbon, photographic, or other reproduction of this Agreement or of any
financing statement covering the Pledged Collateral or any part thereof
shall be sufficient as a financing statement and may be filed as a financing
statement. Each Debtor shall promptly endorse and deliver to the
Administrative Agent all Documents and Instruments that it now owns or may
hereafter acquire. In the event that the Administrative Agent desires to
exercise any remedies, voting or consensual rights or attorney-in-fact
powers set forth in this Agreement and determines it necessary to obtain any
approvals or consents of any Governmental Authority or any other Person
therefor, then, upon the reasonable request of the Administrative Agent,
each Debtor agrees to use its best efforts to assist and aid the
Administrative Agent to obtain as soon as practicable any necessary
Approvals for the exercise of any such remedies, rights and powers.
8.6 Risk of Loss; Insurance. The Debtors shall be responsible for any
loss of or damage to the Pledged Collateral. Each Debtor shall maintain,
with financially sound and reputable companies, insurance policies (a)
insuring the Pledged Collateral against loss by fire, explosion, theft, and
such other risks and casualties as are customarily insured against by
companies engaged in the same or a similar business, and (b) insuring such
Debtor and the Administrative Agent against liability for personal injury
and property damage relating to the Pledged Collateral, such policies to be
in such amounts and covering such risks as are customarily insured against
by companies engaged in the same or a similar business, but at least in the
amounts specified in the Credit Agreement, with losses payable to such
Debtor and the Administrative Agent, as their respective interests may
appear. All insurance with respect to the Pledged Collateral shall provide
that no cancellation, reduction in amount, or change in coverage thereof
shall be effective unless the Administrative Agent has received 30 days
prior written notice thereof. Each Debtor shall furnish the Administrative
Agent with certificates or other evidence satisfactory to the Administrative
Agent of compliance with the foregoing insurance provisions. Each Debtor
shall deliver to the Administrative Agent upon demand copies of all
insurance policies covering the Pledged Collateral or any part thereof.
<PAGE>
8.7 Inspection Rights. Each Debtor shall permit the Administrative
Agent and each Lender and their representatives, upon one (1) Business Day's
prior notice, to examine or inspect the Pledged Collateral wherever located
and to examine, inspect, and copy such Debtor's books and records at any
reasonable time and as often as they may desire. The Administrative Agent
may at any time and from time to time contact account debtors and other
obligors to verify the existence, amounts, and terms of any Debtor's
Accounts. Each Debtor agrees to render to the Administrative Agent, at such
Debtor's cost and expense, such clerical and other assistance as may be
reasonably requested by the Administrative Agent with regard thereto.
8.8 Landlord's Waivers or Subordinations. With respect to all
locations of Equipment and Inventory, each Debtor shall cause each landlord
of real property leased by such Debtor to execute and deliver instruments
satisfactory in form and substance to the Administrative Agent by which such
landlord waives or subordinates its rights, if any, in the Pledged
Collateral.
8.9 Notification. Each Debtor shall promptly notify the
Administrative Agent of (a) any Lien or material claim made or threatened
against the Pledged Collateral, (b) any material change in the Pledged
Collateral, including, without limitation, any material damage to or loss of
the Pledged Collateral, and (c) the occurrence or existence of a Default or
an Event of Default.
8.10 Organizational Changes. No Debtor shall change its name,
identity, or structure in any manner that might make any financing statement
filed in connection with this Agreement seriously misleading, unless such
Debtor shall have given the Administrative Agent thirty (30) days prior
written notice thereof and shall have taken all action deemed necessary or
desirable by the Administrative Agent to make each financing statement not
seriously misleading. No Debtor shall change its principal place of
business, chief executive office, or the place where it keeps its books and
records, unless it shall have given the Administrative Agent thirty (30)
days prior written notice thereof and shall have taken all action deemed
necessary or desirable by the Administrative Agent to cause its security
interest in the Pledged Collateral to be perfected with the priority
required by this Agreement.
8.11 Books and Records; Information. Each Debtor shall keep accurate
and complete books and records of the Pledged Collateral and such Debtor's
business and financial condition in accordance with GAAP (subject to
year-end adjustments and disclosures). Each Debtor shall from time to time
at the request of the Administrative Agent deliver to the Administrative
Agent such information regarding the Pledged Collateral and such Debtor as
the Administrative Agent may request, including, without limitation, lists
and descriptions of the Pledged Collateral and evidence of the identity and
existence of the Pledged Collateral. Each Debtor shall mark its books and
records to reflect the security interest of the Administrative Agent under
this Agreement.
8.12 Location of Pledged Collateral. No Debtor shall move any of its
Equipment or Inventory from the locations specified herein without the prior
written consent of the Administrative Agent, except, upon thirty (30) days'
written notice to the Administrative Agent, to other locations within the
continental United States of America in the ordinary course of business so
long as all actions have been taken to assure the continued perfection and
priority of the Administrative Agent's security interest therein.
<PAGE>
8.13 Warehouse Receipts Non-Negotiable. Each Debtor agrees that if any
warehouse receipt or receipt in the nature of a warehouse receipt is issued
in respect of any of the Pledged Collateral, such warehouse receipt or
receipt in the nature thereof shall not be "negotiable" (as such term is
used in Section 7.104 of the UCC as in effect in any relevant jurisdiction
or under relevant law).
8.14 Collection of Accounts. Except as otherwise provided in this
Section, the Debtors shall have the right to collect and receive payments on
the Accounts. In connection with such collections, the Debtors may take
(and, at the Administrative Agent's direction, shall take) such actions as
the Debtors or the Administrative Agent may deem necessary or advisable to
enforce collection of the Accounts. At any time the Administrative Agent
shall have the right to, or upon the request of the Administrative Agent the
Debtors shall, instruct all account debtors and other Persons obligated in
respect of the Accounts to make all payments on the Accounts either (a)
directly to the Administrative Agent (by instructing that such payments be
remitted to a post office box which shall be in the name and under the
control of the Administrative Agent), or (b) to one or more other banks in
the United States of America (by instructing that such payments be remitted
to a post office box which shall be in the name or under the control of the
Administrative Agent) under arrangements in form and substance satisfactory
to the Administrative Agent pursuant to which the Debtors shall have
irrevocably instructed such other bank (and such other bank shall have
agreed) to remit all such payments directly to the Administrative Agent. In
addition to the foregoing, each Debtor agrees that if any Proceeds of any
Pledged Collateral (including payments made in respect of Accounts) shall be
received by such Debtor while an Event of Default exists, such Debtor shall
promptly deliver such Proceeds to the Administrative Agent, for the pro rata
benefit of the Lenders, with any necessary endorsements. Until such Proceeds
are delivered to the Administrative Agent, such Proceeds shall be held in
trust by such Debtor for the benefit of the Administrative Agent and shall
not be commingled with any other funds or property of any Debtor. All
Proceeds of Pledged Collateral received by the Administrative Agent pursuant
to this Section may at the option of the Required Lenders in the exercise of
their absolute discretion, (i) be applied to the Secured Obligations in
accordance with the Credit Agreement, or (ii) be deposited to the credit of
any Debtor and held as collateral for the Secured Obligations or permitted
to be used by such Debtor in the ordinary course of its business.
8.15 Delivery and Other Perfection. Each Debtor shall:
(a) if there shall be received by such Debtor any of the shares,
securities or property (other than cash unless required by the terms
hereof to be delivered hereunder) required to be pledged by such Debtor
under clauses (a), (b), (c), (d) and (e) of Section 3.01 hereof or any
distribution of capital shall be made on or in respect of the Pledged
Interests or any property shall be distributed upon or with respect to
the Pledged Interests pursuant to the recapitalization or
reclassification of the capital of any LLC or Partnership, or pursuant
to the reorganization thereof, forthwith either (i) transfer and
deliver to the Administrative Agent such shares, capital, property or
securities so received by such Debtor (together with the certificates
for any such shares and securities duly endorsed in blank or
accompanied by undated stock powers duly executed in blank), all of
which thereafter shall be held by the Administrative Agent, pursuant to
the terms of this Agreement, as part of the Pledged Collateral or (ii)
take such other action as the Administrative Agent shall deem necessary
<PAGE>
or appropriate to duly record the Lien created hereunder in such
shares, securities, capital or property in said clauses (a), (b), (c),
(d) and (e) and until such time of transfer hold such shares,
securities, money, property or capital shall be held in trust for the
sole benefit of the Lenders, segregated from of the other property of
each Debtor;
(b) deliver and pledge to the Administrative Agent any and all
Instruments, endorsed and/or accompanied by such instruments of
assignment and transfer in such form and substance as the
Administrative Agent may request; provided, however, that so long as no
Default shall have occurred and be continuing, such Debtor may retain
for collection in the ordinary course any Instruments received by such
Debtor in the ordinary course of business and the Administrative Agent
shall, promptly upon request of such Debtor, make appropriate
arrangements for making any other Instrument pledged by such Debtor
available to such Debtor for purposes of presentation, collection or
renewal (any such arrangement to be effected, to the extent deemed
appropriate by the Administrative Agent, against trust receipt or like
document);
(c) maintain the security interest created by this Agreement as a
first priority perfected security interest and shall defend such
security interest against claims and demands of all Persons whomsoever
and give, execute, deliver, file and/or record any financing statement,
continuation statement, notice, instrument, document, agreement or
other papers that may be necessary or desirable (in the judgment of the
Administrative Agent) to create, preserve, perfect or validate the
security interest granted pursuant hereto or to enable the
Administrative Agent to exercise and enforce its rights hereunder with
respect to such pledge and security interest (and each Debtor
authorizes the Administrative Agent to file any such financing or
continuation statement without the signature of each Debtor to the
extent permitted by applicable law), including, without limitation,
after the occurrence and during the continuance of an Event of Default,
causing any or all of the Stock and Interests Collateral to be
transferred of record into the name of the Administrative Agent or its
nominee (and the Administrative Agent agrees that if any Stock and
Interests Collateral is transferred into its name or the name of its
nominee, the Administrative Agent will thereafter promptly give to the
respective Debtor copies of any notices and communications received by
it with respect to the Stock and Interests Collateral) and if any
amount payable under or in connection with any of the Interests or
Partnership Interests shall be or become evidenced by any Instrument,
such Instrument shall be immediately delivered to the Administrative
Agent, duly endorsed in a manner satisfactory to the Administrative
Agent, to be held as Pledged Collateral pursuant to this Agreement;
(d) furnish to the Administrative Agent upon its request
statements and schedules further identifying and describing the
Copyright Collateral, the Patent Collateral and the Trademark
Collateral, respectively, and such other reports in connection with the
Copyright Collateral, the Patent Collateral and the Trademark
Collateral, as the Administrative Agent may reasonably request, all in
reasonable detail;
<PAGE>
(e) promptly upon request of the Administrative Agent, following
receipt by the Administrative Agent of any statements, schedules or
reports pursuant to clause (d) above, modify this Agreement by amending
Schedules 2, 3 and/or 4 hereto, as the case may be, to include any
Copyright, Patent or Trademark that becomes part of the Pledged
Collateral under this Agreement; and
(f) upon the occurrence and during the continuance of any Event
of Default, permit representatives of the Administrative Agent to be
present at such Debtor's place of business to receive copies of all
communications and remittances relating to the Pledged Collateral, and
forward copies of any notices or communications received by such Debtor
with respect to the Pledged Collateral, all in such manner as the
Administrative Agent may require.
8.16 Perfection. Prior to or concurrently with the execution and
delivery of this Agreement and upon the acquisition or creation of any
securities of or interests in any Issuer, LLC or Partnership the securities
or interests in which are required to be pledged hereunder, each Debtor
shall (a) file such financing statements and other documents in such offices
as the Administrative Agent may request to perfect the security interests
granted by Section 3 of this Agreement, (b) deliver to the Administrative
Agent all certificates identified in Schedule 1 hereto, accompanied by
undated stock powers duly executed in blank and (c) deliver to the
Administrative Agent all Pledged Obligations.
8.17 Special Provisions Relating to Certain Collateral.
(a) Pledged Securities and Pledged Obligations.
(i) The Debtors will cause the Pledged Stock to constitute
at all times, with respect to (x) any Issuer other than a Foreign
Subsidiary all of shares of each class of capital stock of each
such Issuer then owned by any Debtor and (y) any Foreign
Subsidiary, such amount of the shares of capital stock of each
such Issuer as will not (subject to Section 3.01(a) hereof) result
in greater than 65% of the total combined voting power of all
classes of capital stock of any such Issuer.
(ii) In addition to all powers granted to the Administrative
Agent pursuant to Section 9.01 hereof, so long as no Event of
Default shall have occurred and be continuing, the Debtors shall
have the right to exercise all voting, consensual, partnership,
managerial and membership rights and powers and other powers of
ownership pertaining to the Pledged Securities (collectively, the
"Voting Powers") for all purposes not inconsistent with the terms
of this Agreement, the other Loan Documents or any other
instrument or agreement referred to herein or therein; provided,
however, that each Debtor agrees that no vote shall be cast or
membership or partnership right exercised or other action taken
which, in the Administrative Agent's reasonable judgment, would
materially impair the Pledged Securities (other than pursuant to a
transaction expressly permitted under the Credit Agreement) or
which would be inconsistent with or result in any violation of any
provision of any of this Agreement or any other Loan Document.
The Administrative Agent shall execute and deliver to the Debtors
or cause to be executed and delivered to the Debtors all such
proxies, powers of attorney, dividend and other orders, and all
<PAGE>
such instruments, without recourse, as the Debtors may reasonably
request for the purpose of enabling the Debtors to exercise the
Voting Powers that they are entitled to exercise pursuant to this
Section 8.17. Upon the occurrence and during the continuance of
an Event of Default, at the Administrative Agent's option and
following written notice from the Administrative Agent to the
Debtors (such written notice to be effective immediately upon the
giving thereof as provided below) all rights of the Debtors to
exercise the Voting Powers they are entitled to exercise pursuant
to this Section 8.17, and the obligations of the Administrative
Agent under this Section 8.17, shall cease, and all such Voting
Powers shall thereupon become vested in the Administrative Agent,
which shall have the sole and exclusive right and authority to
exercise such Voting Powers, including, without limitation, the
right to act by shareholder, partner, member or other
interestholder consent. Such authorization shall constitute an
irrevocable voting proxy from each Debtor to the Administrative
Agent or, at the Administrative Agent's option, to the
Administrative Agent's nominee.
(iii) The Debtors shall be entitled to receive and retain
any dividends or distributions on the Pledged Securities to the
extent that the payment of such dividends is permitted by the
Credit Agreement.
(iv) Subject to the provisions of Section 9 hereof, if any
Event of Default shall have occurred, then so long as such Event
of Default shall continue, and whether or not the Administrative
Agent or any Lender exercises any available right to declare any
Secured Obligation due and payable or seeks or pursues any other
relief or remedy available to it under applicable law or under
this Agreement, the Credit Agreement, or any other agreement
relating to such Secured Obligation, all dividends and other
distributions on the Pledged Securities shall be paid directly to
the Administrative Agent and retained by it as part of the Pledged
Collateral, subject to the terms of this Agreement, and, if the
Administrative Agent shall so request in writing, the Debtors
jointly and severally agree to execute and deliver to the
Administrative Agent appropriate additional dividend, distribution
and other orders and documents to that end.
(v) So long as no Event of Default has occurred, and to the
extent not prohibited by the Credit Agreement, each Debtor shall
be entitled to receive and retain principal and interest payments,
if any, paid on the Pledged Obligations.
(vi) Each Debtor hereby represents and warrants that it has
made its own arrangements for keeping informed of changes or
potential change affecting the Pledged Securities and the Pledged
Obligations (including, without limitation, rights to convert,
rights to subscribe, payment of dividends, reorganization or other
exchanges, tender offers and voting rights of the Pledged
Securities), and each Debtor agrees that the Administrative Agent
shall have no responsibility or liability for informing such
Debtor of any such changes or potential changes or for taking any
action or omitting to take any action with respect thereto.
<PAGE>
(vii) The Administrative Agent may, upon the occurrence
and during the continuation of an Event of Default, without notice
and at its option, transfer or register the Pledged Securities and
the Pledged Obligations or any part thereof, into its or its
nominee's name, or endorse any of the Pledged Obligations for
negotiation, without any indication that such Pledged Collateral
is subject to the security interest hereunder.
(b) Intellectual Property.
(i) For the purpose of enabling the Administrative Agent,
during the continuance of an Event of Default, to exercise rights
and remedies under Sections 9 and 10 hereof at such time as the
Administrative Agent shall be lawfully entitled to exercise such
rights and remedies, and for no other purpose, each Debtor hereby
grants to the Administrative Agent, to the extent assignable, an
irrevocable, non-exclusive license (exercisable without payment of
royalty or other compensation to such Debtor) to use, assign,
license or sublicense any of the Intellectual Property now owned
or hereafter acquired by such Debtor, wherever the same may be
located, including in such license reasonable access to all media
in which any of the licensed items may be recorded or stored and
to all computer programs used for the compilation or printout
thereof.
(ii) Notwithstanding anything contained herein to the
contrary, but subject to the provisions of Section 8.09 of the
Credit Agreement that limit the right of the Debtors to dispose of
their respective property, so long as no Event of Default shall
have occurred and be continuing, the Debtors will be permitted to
exploit, use, enjoy, protect, license, sublicense, assign, sell,
dispose of or take other actions with respect to the Intellectual
Property in the ordinary course of the business of the Debtors.
In furtherance of the foregoing, unless an Event of Default shall
have occurred and be continuing the Administrative Agent shall
from time to time, upon the request of the respective Debtor,
execute and deliver any instruments, certificates or other
documents, in the form so requested, that such Debtor shall have
certified are appropriate (in its judgment) to allow it to take
any action permitted above (including relinquishment of the
license provided pursuant to clause (i) immediately above as to
any specific Intellectual Property). Further, upon the payment in
full of all of the Secured Obligations and cancellation or
termination of the Commitments or earlier expiration of this
Agreement or release of the Pledged Collateral, the Administrative
Agent shall grant back to the Debtors the license granted pursuant
to clause (i) immediately above. The exercise of rights and
remedies under Section 9 or Section 10 hereof by the
Administrative Agent shall not terminate the rights of the holders
of any licenses or sublicenses theretofore granted by the Debtors
in accordance with the first sentence of this clause (ii).
(c) Motor Vehicles. At any time after the occurrence and during
the continuance of an Event of Default, each Debtor shall, upon the
request of the Administrative Agent, deliver to the Administrative
Agent originals of the certificates of title or ownership for the Motor
Vehicles, and any other Equipment covered by certificates of title or
ownership, owned by it with the Administrative Agent listed as
lienholder.
<PAGE>
8.18 Fraudulent Conveyances. Notwithstanding any contrary
provision, each Debtor agrees that, if, but for the application of this
paragraph, any of the Secured Obligations or the Administrative Agent's
security interest would constitute a preferential transfer under 11 U.S.C. '
547, a fraudulent conveyance under 11 U.S.C. ' 548, or a fraudulent
conveyance or transfer under any state fraudulent conveyance, fraudulent
transfer, or similar laws in effect from time to time (each a "fraudulent
conveyance"), then the Secured Obligations and such security interest
remains enforceable to the maximum extent possible without causing any of
the Secured Obligations or the security interest to be a fraudulent
conveyance, and this Agreement is automatically amended to carry out the
intent of this paragraph.
Section 9. Rights of the Administrative Agent
9.1 Power of Attorney. Each Debtor hereby irrevocably constitutes and
appoints the Administrative Agent and any officer or agent thereof, with
full power of substitution, as its true and lawful attorney-in-fact with
full irrevocable power and authority in the name of such Debtor or in its
own name, to take any and all action and to execute any and all documents
and instruments which the Administrative Agent at any time and from time to
time deems necessary or desirable to accomplish the purposes of this
Agreement and, without limiting the generality of the foregoing, each Debtor
hereby gives the Administrative Agent the power and right on behalf of such
Debtor and in its own name to do any of the following, without notice to or
the consent of such Debtor, whether or not an Event of Default has occurred
and is continuing, except as otherwise expressly provided below.
(a) after the occurrence and during the continuance of an Event
of Default, to demand, sue for, collect, or receive in the name of any
Debtor or in its own name, any money or property at any time payable or
receivable on account of or in exchange for any of the Pledged
Collateral and, in connection therewith, endorse checks, notes, drafts,
acceptances, money orders, documents of title, or any other instruments
for the payment of money under the Pledged Collateral or any policy of
insurance;
(b) to pay or discharge taxes or Liens levied or placed on or
threatened against the Pledged Collateral;
(c) after the occurrence and during the continuance of an Event
of Default, to notify post office authorities to change the address for
delivery of mail of any Debtor to an address designated by the
Administrative Agent and to receive, open, and dispose of mail
addressed to any Debtor;
(d) (A) after the occurrence and during the continuance of an
Event of Default, to direct account debtors and any other parties
liable for any payment under any of the Pledged Collateral to make
payment of any and all monies due and to become due thereunder directly
to the Administrative Agent or as the Administrative Agent shall
direct; (B) after the occurrence and during the continuance of an Event
of Default, to receive payment of and receipt for any and all monies,
claims, and other amounts due and to become due at any time in respect
of or arising out of any Pledged Collateral; (C) after the occurrence
and during the continuance of an Event of Default, to sign and endorse
any invoices, freight or express bills, bills of lading, storage or
<PAGE>
warehouse receipts, drafts against debtors, assignments, proxies, stock
powers, verifications, and notices in connection with accounts and
other documents relating to the Pledged Collateral; (D) after the
occurrence and during the continuance of an Event of Default, to
commence and prosecute any suit, action, or proceeding at law or in
equity in any court of competent jurisdiction to collect the Pledged
Collateral or any part thereof and to enforce any other right in
respect of any Pledged Collateral; (E) after the occurrence and during
the continuance of an Event of Default, to defend any suit, action, or
proceeding brought against any Debtor with respect to any Pledged
Collateral; (F) after the occurrence and during the continuance of an
Event of Default, to settle, compromise, or adjust any suit, action, or
proceeding described above and, in connection therewith, to give such
discharges or releases as the Administrative Agent may deem
appropriate; (G) to exchange any of the Pledged Collateral for other
property upon any merger, consolidation, reorganization,
recapitalization, or other readjustment of the issuer thereof and, in
connection therewith, deposit any of the Pledged Collateral with any
committee, depositary, transfer agent, registrar, or other designated
agency upon such terms as the Administrative Agent may determine; (H)
to add or release any guarantor, indorser, surety, or other party to
any of the Pledged Collateral; (I) after the occurrence and during the
continuance of an Event of Default, to renew, extend, or otherwise
change the terms and conditions of any of the Pledged Collateral; (J)
to make, settle, compromise, or adjust claims under any insurance
policy covering any of the Pledged Collateral; and (K) after the
occurrence and during the continuance of an Event of Default, to sell,
transfer, pledge, make any agreement with respect to or otherwise deal
with any of the Pledged Collateral as fully and completely as though
the Administrative Agent were the absolute owner thereof for all
purposes, and to do, at the Administrative Agent's option and the
Debtors' expense, at any time, or from time to time, all acts and
things which the Administrative Agent deems necessary to protect,
preserve, or realize upon the Pledged Collateral and the Administrative
Agent's security interest therein.
This power of attorney is a power coupled with an interest and shall be
irrevocable. The Administrative Agent shall be under no duty to exercise or
withhold the exercise of any of the rights, powers, privileges, and options
expressly or implicitly granted to the Administrative Agent in this
Agreement, and shall not be liable for any failure to do so or any delay in
doing so. The Administrative Agent shall not be liable for any act or
omission or for any error of judgment or any mistake of fact or law in its
individual capacity or in its capacity as attorney-in-fact except acts or
omissions resulting from its willful misconduct. This power of attorney is
conferred on the Administrative Agent solely to protect, preserve, and
realize upon its security interest in the Pledged Collateral. The
Administrative Agent shall not be responsible for any decline in the value
of the Pledged Collateral and shall not be required to take any steps to
preserve rights against prior parties or to protect, preserve, or maintain
any security interest or Lien given to secure the Pledged Collateral.
<PAGE>
9.2 Certain Covenants and Rights Regarding the Pledged Collateral.
(a) Each Debtor shall from time to time at the reasonable request
of the Administrative Agent furnish the Administrative Agent with a
schedule of each Account included in the Pledged Collateral and a list
of all those liable on checks, notes, drafts, and other Instruments
representing the Proceeds of such Accounts. The Administrative Agent
shall have the right to make test verifications of the Pledged
Collateral. If any part of the Pledged Collateral is or becomes
subject to the Federal Assignment of Claims Act, each Debtor whose
Pledged Collateral has been affected thereby will execute all
instruments and take all steps required by the Administrative Agent to
comply with that act. If any part of the Pledged Collateral is
evidenced by chattel paper, or by one or more promissory notes, trade
acceptances or other Instruments, each Debtor will, at the request of
the Administrative Agent, immediately deliver them to the
Administrative Agent, appropriately endorsed to the order of the
Administrative Agent, and regardless of the form of endorsement, such
Debtor waives presentment, demand, notice of dishonor, protest, and
notice of protest.
(b) If the validity or priority of this Agreement or of any
rights, titles, security interests or other interests created or
evidenced hereby shall be attacked, endangered, or questioned, or if
any legal proceedings are instituted with respect thereto, each Debtor
will give prompt written notice thereof to the Administrative Agent
and, at such Debtors' own cost and expense, will diligently endeavor to
cure any defect which may be developed or claimed, and will take all
necessary and proper steps for the defense of such legal proceedings,
and the Administrative Agent (whether or not named as a party to the
legal proceedings with respect thereto) is hereby authorized and
empowered to take such additional steps as in its judgment and
discretion may be necessary or proper for the defense of any such legal
proceedings or the protection of the validity or priority of this
Agreement and the rights, titles, security interests, and other
interests created or evidenced hereby, and all expenses so incurred of
every kind and character shall be a demand obligation owing by the
Debtors and the party incurring such expenses shall be subrogated to
all rights of the Person receiving such payment.
(c) Upon the occurrence of an Event of Default and at any time
thereafter, the Administrative Agent is authorized to take possession
peaceably of the Pledged Collateral and of all books, records and
accounts relating thereto, and to exercise without interference from
the Debtors any and all rights which any such Debtor has with respect
to the management, possession, protection, or preservation of the
Pledged Collateral. If necessary to obtain the possession provided for
above, the Administrative Agent may invoke any and all legal remedies
to dispossess any such Debtor, including specifically one or more
actions for forcible entry and detainer. In connection with any action
taken by the Administrative Agent pursuant to this Section, the
Administrative Agent shall not be liable for any loss sustained by any
Debtor resulting from any act or omission of the Administrative Agent
unless such loss is caused by the willful misconduct and bad faith of
the Administrative Agent, nor shall the Administrative Agent be
obligated to perform or discharge any obligation, duty, or liability
under any sale or lease agreement covering the Pledged Collateral or
any part thereof, or under or by reason of this Agreement or exercise
of rights or remedies hereunder.
<PAGE>
(d) At any time prior to the termination of this Agreement, after
the occurrence and during the continuance of an Event of Default, the
Administrative Agent may notify the account debtors or obligors of any
Accounts, Instruments, or other evidences of indebtedness included in
the Pledged Collateral to pay the Administrative Agent directly. Until
the Administrative Agent elects to exercise these rights, each Debtor
is authorized as agent of the Administrative Agent to collect and
enforce such Accounts, Instruments, and other evidences of
indebtedness. The costs of collection and enforcement, including
attorneys' fees and expenses, shall be borne solely by the Debtors
whether incurred by the Administrative Agent or the Debtors.
9.3 Performance by the Administrative Agent. If any of the Debtors
fails to perform or comply with any of its obligations or agreements
contained herein, the Administrative Agent itself may, at its sole
discretion, cause or attempt to cause performance or compliance with such
agreement, and the expenses of the Administrative Agent, together with
interest thereon at the Maximum Rate, shall be payable by the Debtors to the
Administrative Agent on demand and shall constitute Secured Obligations
secured by this Agreement. The Administrative Agent, upon making such
payment, shall be subrogated to all of the rights of the Person receiving
such payment. Notwithstanding the foregoing, it is expressly agreed that
the Administrative Agent shall not have any liability or responsibility for
the performance of any obligation of any Debtor under this Agreement.
9.4 Setoff; Property Held by the Administrative Agent. If an Event of
Default shall have occurred and be continuing, the Administrative Agent and
each Lender shall have the right to set off and apply against the Secured
Obligations, at any time and without notice to any Debtor, any and all
deposits (general or special, time or demand, provisional or final) or other
sums at any time credited by or owing from the Administrative Agent or any
Lender to any Debtor whether or not the Secured Obligations are then due.
As additional security for the Secured Obligations, each Debtor hereby
grants the Administrative Agent and each Lender a security interest in all
money, instruments, and other property of such Debtor now or hereafter held
by the Administrative Agent and each Lender. In addition to the
Administrative Agent's and each Lender's right of setoff and as further
security for the Secured Obligations, each Debtor hereby grants the
Administrative Agent and each Lender a security interest in all deposits
(general or special, time or demand, provisional or final) and other
accounts of such Debtor now or hereafter deposited with or held by the
Administrative Agent or any Lender and all other sums at any time credited
by or owing from the Administrative Agent or any Lender to such Debtor. The
rights and remedies of the Administrative Agent and each Lender hereunder
are in addition to other rights and remedies (including, without limitation,
other rights of setoff) which the Administrative Agent and each Lender may
have.
9.5 Subrogation. If any of the Secured Obligations are given in
renewal or extension or applied toward the payment of indebtedness secured
by any Lien, the Secured Parties shall be, and are hereby, subrogated to all
of the rights, titles, interests and Liens securing the indebtedness so
renewed, extended, or paid.
<PAGE>
9.6 Administrative Agent's Duty of Care. Other than the exercise of
reasonable care in the physical custody of the Pledged Collateral while held
by the Administrative Agent hereunder, the Administrative Agent shall have
no responsibility for or obligation or duty with respect to all or any part
of the Pledged Collateral or any matter or proceeding arising out of or
relating thereto, including without limitation any obligation or duty to
collect any sums due in respect thereof or to protect or preserve any rights
against prior parties or any other rights pertaining thereto, it being
understood and agreed that each Debtor shall be responsible for preservation
of all rights in the Pledged Collateral. Without limiting the generality of
the foregoing, the Administrative Agent shall be conclusively deemed to have
exercised reasonable care in the custody of the Pledged Collateral if the
Administrative Agent takes such action, for purposes of preserving rights in
the Pledged Collateral, as any Debtor may reasonably request in writing, but
no failure or omission or delay by the Administrative Agent in complying
with any such request by any Debtor, and no refusal by the Administrative
Agent to comply with any such request by any Debtor, shall be deemed to be a
failure to exercise reasonable care.
9.7 Assignment by the Administrative Agent. The Secured Parties may
from time to time assign the Secured Obligations and any portion thereof
and/or the Pledged Collateral and any portion thereof in accordance with the
applicable provisions of the Credit Agreement, and the assignee shall be
entitled to all of the rights and remedies of such Person under this
Agreement in relation thereto.
Section 10. Default
10.1 Rights and Remedies. Upon the occurrence of an Event of Default,
the Administrative Agent shall have the following rights and remedies:
(a) In addition to all other rights and remedies granted to the
Administrative Agent in this Agreement and in any other instrument or
agreement securing, evidencing, or relating to the Secured Obligations
or any part thereof or by applicable law, the Administrative Agent
shall have all of the rights and remedies of a secured party under the
UCC (whether or not the UCC applies to the affected Pledged
Collateral). Without limiting the generality of the foregoing, the
Administrative Agent may (A) without demand or notice to any Debtor,
collect, receive, or take possession of the Pledged Collateral or any
part thereof and for that purpose the Administrative Agent may enter
upon any premises on which the Pledged Collateral is located and remove
the Pledged Collateral therefrom or render it inoperable, and/or (B)
sell, lease, or otherwise dispose of the Pledged Collateral, or any
part thereof, in one or more parcels at public or private sale or
sales, at the Administrative Agent's offices or elsewhere, for cash, on
credit, or for future delivery, and upon such other terms as the
Administrative Agent may deem commercially reasonable. Each Secured
Party shall have the right at any public sale or sales, and, to the
extent permitted by applicable law, at any private sale or sales, to
bid and become a purchaser of the Pledged Collateral or any part
thereof free of any right or equity of redemption on the part of any
Debtor, which right or equity of redemption is hereby expressly waived
and released by each Debtor. Upon the request of the Administrative
Agent, each Debtor shall assemble the Pledged Collateral and make it
available to the Administrative Agent at any place designated by the
Administrative Agent that is reasonably convenient to such Debtor and
the Administrative Agent. Each Debtor agrees that the Administrative
<PAGE>
Agent shall not be obligated to give more than ten days prior written
notice of the time and place of any public sale or of the time after
which any private sale may take place and that such notice shall
constitute reasonable notice of such matters. The Administrative Agent
shall not be obligated to make any sale of Pledged Collateral if it
shall determine not to do so, regardless of the fact that notice of
sale of Pledged Collateral may have been given. The Administrative
Agent may, without notice or publication, adjourn any public or private
sale or cause the same to be adjourned from time to time by
announcement of the time and place fixed for sale, and such sale may,
without further notice, be made at the time and place to which the same
was so adjourned. Each Debtor shall be jointly and severally liable
for all expenses of retaking, holding, preparing for sale, or the like,
and all attorneys' fees, legal expenses, and all other costs and
expenses incurred by any Secured Party in connection with the
collection of the Secured Obligations and the enforcement of the
Administrative Agent's rights under this Agreement. The Debtors shall
remain liable for any deficiency if the proceeds of any sale or
disposition of the Pledged Collateral are insufficient to pay the
Secured Obligations in full. Each Debtor waives all rights of
marshalling in respect of the Pledged Collateral.
(b) The Administrative Agent may cause any or all of the Pledged
Collateral held by it to be transferred into the name of the
Administrative Agent or the name or names of the Administrative Agent's
nominee or nominees.
(c) The Administrative Agent may collect or receive all money or
property at any time payable or receivable on account of or in exchange
for any of the Pledged Collateral, but shall be under no obligation to
do so.
(d) On any sale of the Pledged Collateral, the Administrative
Agent is hereby authorized to comply with any limitation or restriction
with which compliance is necessary, in the view of the Administrative
Agent's counsel, in order to avoid any violation of applicable law or
in order to obtain any required approval of the purchaser or purchasers
by any applicable Governmental Authority.
10.2 Application of Proceeds of Sale. The proceeds of any sale of
Pledged Collateral pursuant to Section 10.01 hereof, as well as any Pledged
Collateral consisting of cash, shall be applied by the Administrative Agent
as provided in the Credit Agreement. Upon any sale of the Pledged
Collateral by the Administrative Agent (including, without limitation, a
sale pursuant to the UCC or under a judicial proceeding), the receipt of the
Administrative Agent or of the officer making the sale shall be a sufficient
discharge to the purchaser or purchasers of the Pledged Collateral so sold
and such purchaser or purchasers shall not be obligated to see to the
application of any part of the purchase money paid over to the
Administrative Agent or such officer or be answerable in any way for the
misapplication thereof.
10.3 Irrevocable Authorization and Instruction to Issuers LLCs and
Partnerships. Each of the Debtors hereby authorizes and instructs each
Issuer, LLC and Partnership to comply with any instruction received by it
from the Administrative Agent in writing that states that an Event of
Default has occurred and is continuing, without any other or further
instructions from such Debtor, and such Debtor agrees that each Issuer, LLC
and Partnership shall be fully protected in so complying.
<PAGE>
Section 11. Miscellaneous
11.1 No Waiver; Cumulative Remedies. No failure on the part of the
Administrative Agent to exercise and no delay in exercising, and no course
of dealing with respect to, any right, power, or privilege under this
Agreement shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, power, or privilege under this Agreement preclude any
other or further exercise thereof or the exercise of any other right, power,
or privilege. The rights and remedies provided for in this Agreement are
cumulative and not exclusive of any rights and remedies provided by law.
11.2 Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the Debtors, the Secured Parties, and their
respective heirs, successors, and assigns, except that no Debtor may assign
any of its rights or obligations under this Agreement without the prior
written consent of the Administrative Agent. The provisions of this
Agreement shall apply to each Debtor, individually and collectively.
11.3 AMENDMENT; ENTIRE AGREEMENT; CONTROLLING AGREEMENT. THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS EMBODY THE FINAL, ENTIRE AGREEMENT
AMONG THE PARTIES HERETO AND SUPERSEDE ANY AND ALL PRIOR COMMITMENTS,
AGREEMENTS, REPRESENTATIONS, AND UNDERSTANDINGS, WHETHER WRITTEN OR ORAL,
RELATING TO THE SUBJECT MATTER HEREOF AND MAY NOT BE CONTRADICTED OR VARIED
BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OR
DISCUSSIONS OF THE PARTIES HERETO. THERE ARE NO ORAL AGREEMENTS AMONG THE
PARTIES HERETO. The provisions of this Agreement may be amended or waived
only by an instrument in writing signed by the parties hereto. In the event
any term or provision of this Agreement expressly conflicts with any term or
provision of the Credit Agreement; the terms and provisions of the Credit
Agreement shall govern and control.
11.4 Notices. All notices and other communications provided for in
this Agreement shall be given or made in writing and telecopied, mailed by
certified mail return receipt requested, or delivered to the intended
recipient at the "Address for Notices" specified below its name on the
signature pages hereof; or, as to any party at such other address as shall
be designated by such party in a notice to the other party given in
accordance with this Section. Except as otherwise provided in this
Agreement, all such communications shall be deemed to have been duly given
when transmitted by telecopy, subject to telephone confirmation of receipt,
or when personally delivered or, in the case of a mailed notice, when duly
deposited in the mails, in each case given or addressed as aforesaid.
11.5 Applicable Law; Venue; Service of Process. THIS AGREEMENT SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
TEXAS AND THE APPLICABLE LAWS OF THE UNITED STATES OF AMERICA. THIS
AGREEMENT HAS BEEN ENTERED INTO IN DALLAS COUNTY, TEXAS, AND IT SHALL BE
PERFORMABLE FOR ALL PURPOSES IN DALLAS COUNTY, TEXAS. ANY ACTION OR
PROCEEDING AGAINST ANY DEBTOR UNDER OR IN CONNECTION WITH THIS AGREEMENT OR
ANY OTHER INSTRUMENT OR AGREEMENT SECURING, EVIDENCING, OR RELATING TO THE
SECURED OBLIGATIONS OR ANY PART THEREOF MAY BE BROUGHT IN ANY STATE OR
FEDERAL COURT IN DALLAS COUNTY, TEXAS. EACH DEBTOR HEREBY IRREVOCABLY (I)
SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF SUCH COURTS, AND (II) WAIVES ANY
OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH ACTION OR
PROCEEDING BROUGHT IN SUCH COURT OR THAT SUCH COURT IS AN INCONVENIENT
FORUM. EACH DEBTOR AGREES THAT SERVICE OF PROCESS UPON IT MAY BE MADE BY
CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED, AT ITS ADDRESS
SPECIFIED OR DETERMINED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 11.04
<PAGE>
OF THIS AGREEMENT. NOTHING IN THIS AGREEMENT OR ANY OTHER INSTRUMENT OR
AGREEMENT SECURING, EVIDENCING, OR RELATING TO THE SECURED OBLIGATIONS OR
ANY PART THEREOF SHALL AFFECT THE RIGHT OF THE ADMINISTRATIVE AGENT TO SERVE
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT OF THE
ADMINISTRATIVE AGENT TO BRING ANY ACTION OR PROCEEDING AGAINST ANY DEBTOR OR
WITH RESPECT TO ANY OF THE PLEDGED COLLATERAL IN ANY STATE OR FEDERAL COURT
IN ANY OTHER JURISDICTION. ANY ACTION OR PROCEEDING BY ANY DEBTOR AGAINST
THE ADMINISTRATIVE AGENT SHALL BE BROUGHT ONLY IN A COURT LOCATED IN DALLAS
COUNTY, TEXAS.
11.6 Headings. The headings, captions, and arrangements used in this
Agreement are for convenience only and shall not affect the interpretation
of this Agreement.
11.7 Survival of Representations and Warranties. All representations
and warranties made in this Agreement or in any certificate delivered
pursuant hereto shall survive the execution and delivery of this Agreement,
and no investigation by any Secured Party shall affect the representations
and warranties of any Debtor herein or the right of the Secured Parties to
rely upon them.
11.8 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
11.9 Waiver of Bond. In the event the Administrative Agent seeks to
take possession of any or all of the Pledged Collateral by judicial process,
each Debtor hereby irrevocably waives any bonds and any surety or security
relating thereto that may be required by applicable law as an incident to
such possession, and waives any demand for possession prior to the
commencement of any such suit or action.
11.10 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 of this
Agreement, and any such prohibition or unenforceability in any jurisdiction
shall not invalidate or render unenforceable such provision in any other
jurisdiction.
11.11 Construction. Each Debtor and the Administrative Agent
acknowledge that each of them has had the benefit of legal counsel of its
own choice and has been afforded an opportunity to review this Agreement
with its legal counsel and that this Agreement shall be construed as if
jointly drafted by the Debtors and the Administrative Agent.
11.12 Obligations Absolute. The obligations of each Debtor under
this Agreement shall be absolute and unconditional and shall not be
released, discharged, reduced, or in any way impaired by any circumstance
whatsoever, including, without limitation, any amendment, modification,
extension, or renewal of this Agreement, the Secured Obligations, or any
document or instrument evidencing, securing, or otherwise relating to the
Secured Obligations, or any release or subordination of collateral, or any
waiver, consent, extension, indulgence, compromise, settlement, or other
action or inaction in respect of this Agreement, the Secured Obligations, or
any document or instrument evidencing, securing, or otherwise relating to
the Secured Obligations, or any exercise or failure to exercise any right,
remedy, power, or privilege in respect of the Secured Obligations.
<PAGE>
11.13 Administrative Agent Not a Member. Nothing contained in this
Agreement shall be construed or interpreted (a) to transfer to the
Administrative Agent or any Lender any of the obligations of a partner of a
Partnership or a member or manager of any LLC or (b) to constitute the
Administrative Agent or any Lender a partner of a Partnership or a member or
manager of any LLC.
11.14 Release of Security Interest. At such time as all of the
Secured Obligations have been paid and performed in full, all obligations
and commitments of the Secured Parties to make advances, or otherwise extend
credit under the Credit Agreement have expired or terminated, the
Administrative Agent shall release the security interest granted hereby.
11.15 Payment of Fees and Expenses. The Debtors shall pay (a) all
reasonable out-of-pocket expenses incurred by the Administrative Agent and
its Affiliates, including the reasonable fees, charges and disbursements of
counsel for the Administrative Agent, in connection with this Agreement and
the Pledged Collateral, the preparation and administration of this
Agreement, the other Loan Documents or any amendments, modifications or
waivers of the provisions hereof or thereof (whether or not the transactions
contemplated hereby or thereby shall be consummated), (ii) all out-of-pocket
expenses incurred by the Administrative Agent, and, after an Event of
Default, any Lender, including the fees, charges and disbursements of any
counsel for the Administrative Agent or any Lender in connection with the
enforcement or protection of its rights in connection with this Agreement
and the other Loan Documents, in connection with the Pledged Collateral or
the Loans made, including all such out-of-pocket expenses incurred during
any workout, restructuring or negotiations in respect of such Loans,
(iii) all transfer, stamp, documentary, or other similar taxes, assessments
or charges levied by any Governmental Authority in respect of this Agreement
or any of the other Loan Documents, (iv) all costs, out-of-pocket expenses,
assessments and other charges incurred in connection with any filing,
registration, recording, or perfection of any security interest or Lien
contemplated by this Agreement or any other Loan Document, and (v) all other
costs and out-of-pocket expenses incurred by the Administrative Agent in
connection with this Agreement, any other Loan Document or the Pledged
Collateral, including without limitation costs, fees, expenses and other
charges incurred in connection with performing or obtaining any audit or
appraisal in respect of the Pledged Collateral or for any surveys,
environmental assessments, title insurance, filing fees, recording costs and
lien searches.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Security
Agreement to be duly executed and delivered as of the day and year first
above written.
PEGASUS SYSTEMS, INC.
By: /s/ JOHN F. DAVIS, III
-------------------------
Name: John F. Davis, III
-------------------------
Title: President
-------------------------
PEGASUS NO. 1, LLC
By: Pegasus Systems, Inc.,
its Sole Member
By: /s/ W.C. HAMMETT, JR.
-------------------------
Name: William C. Hammett, Jr.
-------------------------
Title: Manager
-------------------------
PEGASUS NO. 2, LLC
By: Pegasus Systems, Inc.,
its Sole Member
By: /s/ W.C. HAMMETT, JR.
-------------------------
Name: William C. Hammett, Jr.
-------------------------
Title: Manager
-------------------------
PEGASUS GP, LLC
By: Pegasus Systems, Inc.,
its Sole Member
By: /s/ JOHN F. DAVIS, III
-------------------------
Name: John F. Davis, III
-------------------------
Title: President
-------------------------
<PAGE>
PEGASUS BUSINESS INTELLIGENCE, LP
By: Pegasus GP LLC,
its General Partner
By: Pegasus Systems, Inc.,
its Sole Member
By: /s/ JOHN F. DAVIS, III
-------------------------
Name: John F. Davis, III
-------------------------
Title: President
-------------------------
PEGASUS COMMISSION PROCESSING, LP,
successor-in-interest by merger to
The Hotel Clearing Corporation
By: Pegasus GP, LLC,
its General Partner
By: Pegasus Systems, Inc.,
its Sole Member
By: /s/ JOHN F. DAVIS, III
-------------------------
Name: John F. Davis, III
-------------------------
Title: President
-------------------------
PEGASUS ELECTRONIC DISTRIBUTION, LP,
successor-in-interest by merger to
(THISCO) - The Hotel Industry Switch Company
By: Pegasus GP, LLC,
its General Partner
By: Pegasus Systems, Inc.,
its Sole Member
By: /s/ JOHN F. DAVIS, III
-------------------------
Name: John F. Davis, III
-------------------------
Title: President
-------------------------
<PAGE>
TRAVEL WEB, LP, successor-in-interest
by merger to Travel Web, Inc.
By: Pegasus Electronic Distribution, LP,
its General Partner
By: Pegasus GP, LLC,
its General Partner
By: Pegasus Systems, Inc.,
its Sole Member
By: /s/ JOHN F. DAVIS, III
-------------------------
Name: John F. Davis, III
-------------------------
Title: President
-------------------------
REZ, INC.
By: /s/ JOHN F. DAVIS, III
-------------------------
Name: John F. Davis, III
-------------------------
Title: President
-------------------------
REZSOLUTIONS, INC., successor-in-interest
to Anasazi, Inc.
By: /s/ JOHN F. DAVIS, III
-------------------------
Name: John F. Davis, III
-------------------------
Title: President
-------------------------
ANASAZI SERVICE CORPORATION
By: /s/ JOHN F. DAVIS, III
-------------------------
Name: John F. Davis, III
-------------------------
Title: President
-------------------------
<PAGE>
ANASAZI TRAVEL RESOURCES, INC.
By: /s/ JOHN F. DAVIS, III
-------------------------
Name: John F. Davis, III
-------------------------
Title: President
-------------------------
<PAGE>
SCHEDULE 1
DEBTORS
Issuers
Partnerships
LLC'S
SCHEDULE 2
COPYRIGHT COLLATERAL
SCHEDULE 3
PATENT COLLATERAL
SCHEDULE 4
TRADEMARK COLLATERAL
SCHEDULE 5
LICENSES AND USER AGREEMENTS
SCHEDULE 6
LOCATIONS OF COLLATERAL
SCHEDULE 7
FILING OFFICES
<PAGE>
SCHEDULE 8
BUSINESS LOCATIONS
SCHEDULE 9
TRADE NAMES
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM
COMPANY'S FORM 10-Q FOR THE THREE MONTHS ENDED MARCH 31, 2000 FILED
MAY 12, 2000 WITH SECURITIES AND EXCHANGE COMMISSION AND IS QUALIFIED
IN ITS ENTIRETY BY REFERENCE TO SUCH 10-Q.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-2000
<PERIOD-END> MAR-31-2000
<CASH> 138,519
<SECURITIES> 7,496
<RECEIVABLES> 7,207
<ALLOWANCES> (62)
<INVENTORY> 0
<CURRENT-ASSETS> 156,769
<PP&E> 21,358
<DEPRECIATION> (15,703)
<TOTAL-ASSETS> 170,496
<CURRENT-LIABILITIES> 9,582
<BONDS> 0
0
0
<COMMON> 206
<OTHER-SE> 160,101
<TOTAL-LIABILITY-AND-EQUITY> 170,496
<SALES> 0
<TOTAL-REVENUES> 10,661
<CGS> 0
<TOTAL-COSTS> 3,431
<OTHER-EXPENSES> 4,707
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 6
<INCOME-PRETAX> 4,111
<INCOME-TAX> 1,090
<INCOME-CONTINUING> 3,021
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 3,021
<EPS-BASIC> 0.15
<EPS-DILUTED> 0.14
</TABLE>
