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EXHIBIT 10.1
LIMITED GUARANTY
THIS LIMITED GUARANTY (this "Guaranty") is made as of the
[25] day of April, 2000 by Darwin Deason, an individual residing in Dallas,
Texas ("Deason") in favor of the Agent, for the ratable benefit of the
Lenders, under (and as defined in) the Credit Agreement referred to below;
WITNESSETH:
WHEREAS, Precept Business Services, Inc., a Texas
corporation (the "Borrower"), Bank One, Texas, NA, as contractual
representative (the "Agent"), and certain Lenders have entered into a certain
Credit Agreement dated as of March 22, 1999, as previously amended by
Amendment and Waiver No. 1 thereto dated as of May 14, 1999 and Amendment and
Waiver No. 2 thereto dated as of November 12, 1999 and as simultaneously being
amended by Amendment and Waiver No. 3 thereto dated as of the date hereof (as
so amended thereby and as further amended, modified, supplemented and/or
restated from time to time, the "Credit Agreement"), providing, subject to the
terms and conditions thereof, for extensions of credit to be made by the
Lenders to the Borrower;
WHEREAS, it is a condition precedent to execution of
Amendment and Waiver No. 3 to the Credit Agreement, the extension of the
Provisional Loans contemplated therein and the continuation of the other
financial accommodations by the Lenders under the Credit Agreement that Deason
execute and deliver this Guaranty, whereby Deason shall guarantee the payment
when due of all "Secured Obligations" (as defined in the Credit Agreement),
principal, interest, letter of credit reimbursement obligations and other
amounts that shall be at any time payable by the Borrower under the Credit
Agreement, any "Hedging Agreement" (as defined in the Credit Agreement), the
Notes and the other Loan Documents, subject to the dollar limitations and
termination provisions set forth herein; and
WHEREAS, Deason, owns approximately 14.8% of the outstanding
Capital Stock (Class A Common Stock and Class B Common Stock) of the Borrower
and Deason acknowledges and agrees that the making of the Loans, including the
Provisional Loan, and the extension of the other financial accommodations
under the Credit Agreement and the other Loan Documents to the Borrower is,
and will continue to be, of direct economic benefit to Deason;
WHEREAS, in consideration of the foregoing and in order to
induce the Lenders and the Agent to enter into Amendment and Waiver No. 3 to
the Credit Agreement, Deason is willing to guarantee the obligations of the
Borrower under the Credit Agreement, any Hedging Agreement, the Notes, and the
other Loan Documents on the terms and subject to the conditions set forth
herein;
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NOW, THEREFORE, in consideration of the premises and other
good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
SECTION 1. DEFINITIONS. Terms defined in the Credit
Agreement and not otherwise defined herein have, as used herein, the
respective meanings provided for therein.
SECTION 2. REPRESENTATIONS, WARRANTIES AND COVENANTS.
(a) REPRESENTATIONS AND WARRANTIES. Deason represents and
warrants (which representations and warranties shall be deemed to have been
renewed at the time of the making of any Advance or issuance of any Letter of
Credit) that:
(i) He has the power, capacity, authority and
legal right to execute and deliver this Guaranty and to perform his
obligations hereunder. This Guaranty constitutes a legal, valid and
binding obligation of Deason enforceable against Deason in accordance
with its terms, except as enforceability may be limited by bankruptcy,
insolvency or similar laws affecting the enforcement of creditors'
rights generally.
(ii) Neither the execution and delivery by him of
this Guaranty, nor the consummation by him of the transactions herein
contemplated, nor compliance by him with the terms and provisions
hereof, will violate any law, rule, regulation, order, writ, judgment,
injunction, decree or award binding on him or the provisions of any
indenture, instrument or material agreement to which he is a party or
is subject, or by which he, or his property, is bound, or conflict with
or constitute a default thereunder, or result in the creation or
imposition of any Lien in, of or on his property pursuant to the terms
of any such indenture, instrument or material agreement. No order,
consent, approval, license, authorization, or validation of, or filing,
recording or registration with, or exemption by, any Governmental
Authority, is required to authorize, or is required in connection with
the execution, delivery and performance by him of, or the legality,
validity, binding effect or enforceability against him of, this
Guaranty.
(b) COVENANTS. Unless prior to October 22, 2000(2) all
Guaranteed Obligations shall have been paid in full in cash and the
Commitments and all Letters of Credit issued under the Credit Agreement shall
have terminated or expired or a "Release Event" (as defined below) occurs,
then on or before such date Deason shall (i) deliver to the Agent a duly
executed Pledge Agreement in the form attached hereto as EXHIBIT A, together
with an opinion of counsel to Deason in connection therewith in form and
substance acceptable to the Agent and the Lenders, (ii) deliver to the Agent
original stock certificates for Class A common stock of Affiliated Computer
Services, Inc. (in connection with which all of the representations required
to be made under the Pledge Agreement can be made) with a current market
value at the time of such initial delivery of not less than $3,021,333.34
(utilizing for purposes of valuation the average closing price over the five
(5) immediately preceding trading days for such stock on the
----------------------
(2) Insert date that is 180 days after date of this Limited Guaranty.
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New York Stock Exchange) and stock powers duly executed in blank for such
shares, (iii) deliver a form U-1 signed by the Borrower and a U-1 signed by
Deason with respect to such pledged shares together with such information as
shall permit the Agent to complete the provisions of such form U-1, and (iv)
thereafter shall comply with each of the covenants and requirements set forth
in such Pledge Agreement.
SECTION 3. THE LIMITED GUARANTY. (a) (i) GUARANTY TERMS.
Deason hereby unconditionally guarantees the full and punctual payment when
due (whether at stated maturity, upon acceleration or otherwise) of the
Secured Obligations, including, without limitation, (A) the principal of and
interest on each Loan under or Note issued by the Borrower pursuant to the
Credit Agreement, (B) any Reimbursement Obligations of the Borrower, (C) all
Hedging Obligations of the Borrower owing to any Lender or any affiliate of
any Lender under any Hedging Agreement, and (D) all other amounts payable by
the Borrower under the Credit Agreement, any Hedging Agreement and the other
Loan Documents (all of the foregoing being referred to collectively as the
"Guaranteed Obligations"); PROVIDED, HOWEVER, notwithstanding anything herein
to the contrary, the maximum amount which may be recovered from Deason
pursuant to the terms of this Guaranty shall not exceed the sum of (1)
$2,266,000 (the "Initial Stated Amount"), as such Initial Stated Amount may be
reduced pursuant to the provisions of SECTION 3(a)(ii) below PLUS (2) interest
on such sum and expenses of enforcement, if applicable, pursuant to the terms
of SECTION 16 below; PROVIDED, FURTHER, no demand for payment under this
Guaranty shall be permitted to be made if a "Release Event" (as defined below)
has occurred. Upon failure by the Borrower to pay punctually any such
Guaranteed Obligations, Deason agrees that he shall forthwith on demand pay
such amount at the place and in the manner specified in the Credit Agreement,
Hedging Agreements, any Note or the relevant Loan Document, as the case may
be. Deason hereby agrees that this Guaranty is an absolute, irrevocable and a
guaranty of payment and is not a guaranty of collection. Neither the Agent nor
any Lender shall be required to pursue any other remedy prior to invoking the
benefits of this Guaranty, including, without limitation, taking any action
against the Borrower, exhausting any remedy against any endorser of any
instrument issued by the Borrower, foreclosing against any Collateral of the
Borrower or any other guarantors, or setting-off against the balance of any
deposit account of the Borrower or any other guarantors kept with the Agent or
any Lender.
(ii) REDUCTIONS OF INITIAL STATED AMOUNT. The Initial Stated Amount
will be reduced ratably simultaneously with and in proportion to any permanent
reductions of the Aggregate Commitment; PROVIDED, HOWEVER, no such reduction
of Initial Stated Amount shall be available if a Sale Event with respect to
either the transportation or business products operating divisions of the
Borrower are sold and the net cash proceeds (after taking into account all
expenses of such transaction) paid to the Lenders in reduction of the
Obligations and reduction of the Aggregate Commitment are less than
$17,500,000 in the case of a Sale Event with respect to the transportation
division or $22,500,000 in the case of a Sale Event with respect to the
business products division, in either of which events the Initial Stated
Amount will remain unchanged and will remain available for the full Initial
Stated Amount as support to the Lenders even after such a Sale Event unless
the Guaranty is released in accordance with the terms set forth in clause
(iii) below. Without affecting the foregoing, it should be noted that any Sale
Event requires the consent of each of the Lenders under the Credit Agreement
and nothing herein shall be construed as a consent to any such sale.
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(iii) RELEASE EVENTS. For purposes hereof, the term "Release Event"
means satisfaction of any one or more of the following:
(A) LEVERAGE RELATED RELEASE: Satisfaction of
each of the following: (1) the receipt by
the Agent of financial statements and
compliance certificates pursuant to the
terms of SECTION 7.1(A) of the Credit
Agreement, which financial statements and
compliance certificates reflect, to the
reasonable satisfaction of the Agent, that
the Borrower's Leverage Ratio was less than
2.00 to 1.00 as of the end of four
consecutive fiscal quarters (calculated on a
trailing 12-month basis as provided in
SECTION 7.4(B) of the Credit Agreement), (2)
the receipt by the Agent of an unqualified
audit of the Borrower's and its Subsidiaries
financial statements as required pursuant to
the terms of SECTION 7.1(A)(ii) of the
Credit Agreement with respect to one of the
quarters included in the four-quarters
referenced in clause (1) and (3) no Default
or Unmatured Default has occurred and is
continuing under the Credit Agreement as of
the date of satisfaction with such
requirements under clauses (1) and (2); or
(A) EQUITY RELATED RELEASE: The sale by the
Borrower Equity Interests of the Borrower
(other than Disqualified Stock) where the
net cash proceeds equal or exceed $2,266,000
and the proceeds of which are utilized by
the Borrower for the repayment or prepayment
(including all interest and fees accrued
thereon) and termination of the Provisional
Loan facility provided pursuant to SECTION
2.1A of the Credit Agreement in its
entirety; or
(C) CONSENT BASED RELEASE: Receipt by Deason of
a written release and termination of this
Guaranty by the Agent and each of the
Lenders.
(b) ACCELERATED GUARANTY OBLIGATION. Notwithstanding anything
in this Guaranty to the contrary, demand for payment from Deason under this
Guaranty shall be presumed to have been issued and the entire unpaid amount
which can be demanded hereunder, together with accrued interest thereon, if any,
shall become immediately due and payable regardless of any payment limitation in
the event of the occurrence of any one or more of the following:
(1) Deason has commenced a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter
in effect; consented to the entry of an order for relief in an
involuntary case, or to the conversion of an involuntary case
to a voluntary case, under any such law; consented to the
appointment of or taking possession by a receiver, trustee or
other custodian for all or a substantial part of his property;
made any assignment for the benefit of creditors; or taken any
action to authorize any of the foregoing;
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(2) An involuntary case was commenced against Deason; or a court
has entered a decree or order for relief in respect of Deason
in an involuntary case, under any applicable bankruptcy,
insolvency or other similar law now or hereinafter in effect;
or similar relief has been granted under any applicable
federal, state, local or foreign law; or
(3) A decree or order of a court having jurisdiction in the
premises for the appointment of a receiver, liquidator,
sequestrator, trustee, custodian or other officer having
similar powers over Deason or over all or a substantial part
of his assets has been entered; or an interim receiver,
trustee or other custodian of Deason or of all or a
substantial part of his property has been appointed or a
warrant of attachment, execution or similar process against
any substantial part of the property of Deason has been
issued.
SECTION 4. GUARANTY UNCONDITIONAL. The obligations of Deason
hereunder shall be unconditional and absolute (subject to the provisions of
SECTION 3 above) and, without limiting the generality of the foregoing, shall
not be released, discharged or otherwise affected by:
(i) any extension, renewal, settlement, indulgence, compromise,
waiver or release of or with respect to the Guaranteed
Obligations or any part thereof or any agreement relating
thereto, or with respect to any obligation of any other
guarantor of any of the Guaranteed Obligations, whether (in
any such case) by operation of law or otherwise, or any
failure or omission to enforce any right, power or remedy with
respect to the Guaranteed Obligations or any part thereof or
any agreement relating thereto, or with respect to any
obligation of any other guarantor of any of the Guaranteed
Obligations;
(ii) any modification or amendment of or supplement to the Credit
Agreement, any Hedging Agreement, any Note, or any other Loan
Document, including, without limitation, any such amendment
which may increase the amount of the Secured Obligations
guaranteed hereby;
(iii) any release, surrender, compromise, settlement, waiver,
subordination or modification, with or without consideration,
of any collateral securing the Guaranteed Obligations or any
part thereof, any other guaranties with respect to the
Guaranteed Obligations or any part thereof, or any other
obligation of any person or entity with respect to the
Guaranteed Obligations or any part thereof, or any
nonperfection or invalidity of any direct or indirect security
for the Guaranteed Obligations;
(iv) any change in the corporate, partnership or other existence,
structure or ownership of the Borrower or any other guarantor
of any of the Guaranteed Obligations, or any insolvency,
bankruptcy, reorganization or other similar proceeding
affecting the Borrower or any other guarantor of the
Guaranteed Obligations, or any of their
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respective assets or any resulting release or discharge of any
obligation of the Borrower or any other guarantor of any of
the Guaranteed Obligations;
(v) the existence of any claim, setoff or other rights which
Deason may have at any time against the Borrower, any other
guarantor of any of the Guaranteed Obligations, the Agent, any
Holder of Secured Obligations or any other Person, whether in
connection herewith or in connection with any unrelated
transactions, PROVIDED that nothing herein shall prevent the
assertion of any such claim by separate suit or compulsory
counterclaim;
(vi) the enforceability or validity of the Guaranteed Obligations
or any part thereof or the genuineness, enforceability or
validity of any agreement relating thereto or with respect to
any collateral securing the Guaranteed Obligations or any part
thereof, or any other invalidity or unenforceability relating
to or against the Borrower or any other guarantor of any of
the Guaranteed Obligations, for any reason related to the
Credit Agreement, any Hedging Agreement, any other Loan
Document, or any provision of applicable law or regulation
purporting to prohibit the payment by the Borrower or any
other guarantor of the Guaranteed Obligations, of any of the
Guaranteed Obligations;
(vii) the failure of the Agent to take any steps to perfect and
maintain any security interest in, or to preserve any rights
to, any security or collateral for the Guaranteed Obligations,
if any;
(viii) the election by, or on behalf of, any one or more of the
Holders of Secured Obligations, in any proceeding instituted
under Chapter 11 of Title 11 of the United States Code (11
U.S.C. 101 et seq.) (the "Bankruptcy Code"), of the
application of Section 1111(b)(2) of the Bankruptcy Code;
(ix) any borrowing or grant of a security interest by the Borrower,
as debtor-in-possession, under Section 364 of the Bankruptcy
Code;
(x) the disallowance, under Section 502 of the Bankruptcy Code, of
all or any portion of the claims of any of the Holders of
Secured Obligations or the Agent for repayment of all or any
part of the Guaranteed Obligations;
(xi) the Agent's or any Lender's failure to diligently preserve the
Borrower's or any other guarantor's liability under any Loan
Document or to bring an action to enforce collection of any
amounts owing under any Loan Document;
(xii) the Guaranty being deemed invalid or unenforceable as to or
against any party hereto;
(xiii) the Borrower's entry into any Loan Document is found to be
ULTRA VIRES, any Authorized Officer acting on the Borrower's
behalf with regard to any Loan Document is found to have acted
beyond the scope of such Authorized Officer's
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authority, or the Loan Documents are found to be unenforceable
against the Borrower for any other reason; or
(xiv) any other act or omission to act or delay of any kind by the
Borrower, any other guarantor of the Guaranteed Obligations,
the Agent, any Holder of Secured Obligations or any other
Person or any other circumstance whatsoever which might, but
for the provisions of this SECTION 4, constitute a legal or
equitable discharge of any of Deason's obligations hereunder.
SECTION 5. DISCHARGE ONLY UPON PAYMENT IN FULL AND CERTAIN
TERMINATION EVENTS: REINSTATEMENT IN CERTAIN CIRCUMSTANCES. Deason' obligations
hereunder shall remain in full force and effect until (a) all Guaranteed
Obligations shall have been paid in full in cash and the Commitments and all
Letters of Credit issued under the Credit Agreement shall have terminated or
expired or (b) a Release Event occurs. If at any time any payment of the
principal of or interest on any Note, any Reimbursement Obligation or any other
amount payable by the Borrower or any other party under the Credit Agreement,
any Hedging Agreement or any other Loan Document is rescinded or must be
otherwise restored or returned upon the insolvency, bankruptcy or reorganization
of the Borrower or otherwise, Deason' obligations hereunder with respect to such
payment shall be reinstated as though such payment had been due but not made at
such time.
SECTION 6. GENERAL WAIVERS. Deason irrevocably waives
acceptance hereof, presentment, demand or action on delinquency, protest, the
benefit of any statutes of limitations and, to the fullest extent permitted by
law, any notice not provided for herein, as well as any requirement that at any
time any action be taken by any Person against the Borrower, any other guarantor
of the Guaranteed Obligations, or any other Person. Without in any way limiting
the foregoing, Deason waives the benefits of Chapter 34 of the Texas Business
and Commerce Code.
SECTION 7. SUBORDINATION OF SUBROGATION. Until the Secured
Obligations have been indefeasibly paid in full in cash, Deason (i) shall have
no right of subrogation with respect to such Secured Obligations and (ii) waives
any right to enforce any remedy which the Holders of Secured Obligations,
Issuing Banks or the Agent now have or may hereafter have against the Borrower,
any endorser or any guarantor of all or any part of the Secured Obligations or
any other Person, and Deason waives any benefit of, and any right to participate
in, any security or collateral given to the Holders of Secured Obligations, the
Issuing Banks and the Agent to secure the payment or performance of all or any
part of the Secured Obligations or any other liability of the Borrower to the
Holders of Secured Obligations or Issuing Banks. Should Deason have the right,
notwithstanding the foregoing, to exercise his subrogation rights, Deason hereby
expressly and irrevocably (a) subordinates any and all rights at law or in
equity to subrogation, reimbursement, exoneration, contribution, indemnification
or set off that Deason may have to the indefeasible payment in full in cash of
the Secured Obligations and (b) waives any and all defenses available to a
surety, guarantor or accommodation co-obligor until the Secured Obligations are
indefeasibly paid in full in cash. Deason acknowledges and agrees that this
subordination is intended to benefit the Agent and the Holders of Secured
Obligations and shall not limit or otherwise affect Deason's liability hereunder
or the enforceability of this Guaranty, and that the Agent, the Holders of
Secured Obligations and their respective successors and
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assigns are intended third party beneficiaries of the waivers and agreements
set forth in this SECTION 7.
SECTION 8. STAY OF ACCELERATION. If acceleration of the time
for payment of any amount payable by the Borrower under the Credit Agreement,
any Hedging Agreement, any Note or any other Loan Document is stayed upon the
insolvency, bankruptcy or reorganization of the Borrower, all such amounts
otherwise subject to acceleration under the terms of the Credit Agreement, any
Hedging Agreement any Note or any other Loan Document shall nonetheless be
payable by Deason hereunder, subject to the limitations set forth herein,
forthwith on demand by the Agent.
SECTION 9. NOTICES. Except as otherwise expressly provided
below, any notice required or desired to be served, given or delivered hereunder
shall be in writing and shall be deemed to have been validly served, given or
delivered (i) three (3) days after deposit in the United States Mails, with
proper postage prepaid or provided for, (ii) when sent after receipt of
confirmation or answerback if sent by telecopy, telex or other similar facsimile
transmission, (iii) one (1) business day after deposited with a reputable
overnight courier with all charges prepaid or (iv) when delivered, if
hand-delivered by messenger, all of which shall be properly addressed to the
party to be notified and sent to the address or number indicated as follows:
(a) If to the Agent at:
Bank One, Texas, NA
1717 Main Street
4th Floor
Dallas, Texas 75201
Attn: Rick Rogers
Ph: 214/290-2540
Fax: 214/290-2054
(b) If to Deason at:
Darwin Deason
c/o Affiliated Computer Services Inc.
2828 North Haskell Avenue
10th Floor
Dallas, Texas 75204
Attn: General Counsel
Telephone No.: (214)841-6152
Facsimile No.: (214) 841-5746
SECTION 10. NO WAIVERS. No failure or delay by the Agent or
any Holder of Secured Obligations in exercising any right, power or privilege
hereunder shall operate as a waiver thereof nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. The rights and remedies provided in this
Guaranty, the Credit Agreement, any Hedging Agreement, the Notes, and the
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other Loan Documents shall be cumulative and not exclusive of any rights or
remedies provided by law.
SECTION 11. SUCCESSORS AND ASSIGNS. This Guaranty is for the
benefit of the Agent and the Holders of Secured Obligations and their respective
successors and permitted assigns and in the event of an assignment of any
amounts payable under the Credit Agreement, any Hedging Agreement, the Notes, or
the other Loan Documents in accordance with the respective terms thereof, the
rights hereunder, to the extent applicable to the indebtedness so assigned, may
be transferred with such indebtedness. This Guaranty shall be binding upon
Deason and his heirs, successors and assigns.
SECTION 12. CHANGES IN WRITING. Neither this Guaranty nor any
provision hereof may be changed, waived, discharged or terminated orally, but
only in writing signed by the Agent with the consent of the Required Lenders,
and, if any such change, waiver, discharge or termination directly and adversely
affects the rights, duties and obligations of Deason hereunder, Deason.
SECTION 13. GOVERNING LAW. THIS GUARANTY IS BEING EXECUTED AND
DELIVERED, AND IS INTENDED TO BE PERFORMED, IN DALLAS, TEXAS, AND THE
SUBSTANTIVE LAWS OF THE STATE OF TEXAS SHALL GOVERN THE VALIDITY, CONSTRUCTION,
ENFORCEMENT AND INTERPRETATION OF THIS GUARANTY. ANY DISPUTE BETWEEN DEASON AND
THE AGENT OR ANY LENDER ARISING OUT OF, CONNECTED WITH, RELATED TO, OR
INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN THEM IN CONNECTION WITH, THIS
GUARANTY, AND WHETHER ARISING IN CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE
RESOLVED IN ACCORDANCE WITH THE SUBSTANTIVE LAWS OF THE STATE OF TEXAS, BUT
GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
SECTION 14. CONSENT TO JURISDICTION; SERVICE OF PROCESS; JURY
TRIAL.
(A) DEASON HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE
JURISDICTION OF ANY UNITED STATES FEDERAL OR TEXAS STATE COURT SITTING IN
DALLAS, TEXAS IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
GUARANTY AND DEASON HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH
ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT AND
IRREVOCABLY WAIVES ANY OBJECTION HE MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF
ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT
IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT THE RIGHT OF THE AGENT OR
ANY LENDER TO BRING PROCEEDINGS AGAINST DEASON IN THE COURTS OF ANY OTHER
JURISDICTION. ANY JUDICIAL PROCEEDING BY DEASON AGAINST THE AGENT OR ANY LENDER
OR ANY AFFILIATE OF THE AGENT OR ANY LENDER INVOLVING, DIRECTLY OR INDIRECTLY,
ANY MATTER IN ANY WAY ARISING OUT OF, RELATED TO, OR
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CONNECTED WITH THIS GUARANTY SHALL BE BROUGHT ONLY IN A COURT IN DALLAS, TEXAS.
(B) SERVICE OF PROCESS. DEASON WAIVES PERSONAL SERVICE OF ANY
PROCESS UPON HIM AND IRREVOCABLY APPOINTS THE GENERAL COUNSEL OF AFFILIATED
COMPUTER SERVICES INC. (THE ADDRESS FOR WHICH IS 2828 NORTH HASKELL AVENUE, 10TH
FLOOR, DALLAS, TEXAS, 75204) AS HIS AGENT FOR THE PURPOSE OF ACCEPTING SERVICE
OF PROCESS ISSUED BY ANY COURT. NOTHING HEREIN SHALL IN ANY WAY BE DEEMED TO
LIMIT THE ABILITY OF THE AGENT OR THE LENDERS TO SERVE ANY SUCH WRITS, PROCESS
OR SUMMONSES IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW. DEASON IRREVOCABLY
WAIVES ANY OBJECTION (INCLUDING, WITHOUT LIMITATION, ANY OBJECTION OF THE LAYING
OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS) WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING WITH RESPECT TO
THIS GUARANTY OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR
DELIVERED IN CONNECTION HEREWITH IN ANY JURISDICTION SET FORTH ABOVE.
(C) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO
IRREVOCABLY WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY
DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF,
CONNECTED WITH, RELATED TO OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG
THEM IN CONNECTION WITH THIS GUARANTY OR ANY OTHER INSTRUMENT, DOCUMENT OR
AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH. EACH OF THE PARTIES
HERETO AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF
ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT ANY PARTY HERETO
MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS GUARANTY WITH ANY COURT AS
WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR
RIGHT TO TRIAL BY JURY.
(D) WAIVER OF BOND. DEASON WAIVES THE POSTING OF ANY BOND
OTHERWISE REQUIRED OF ANY PARTY HERETO IN CONNECTION WITH ANY JUDICIAL PROCESS
OR PROCEEDING TO ENFORCE ANY JUDGMENT OR OTHER COURT ORDER ENTERED IN FAVOR OF
SUCH PARTY, OR TO ENFORCE BY SPECIFIC PERFORMANCE, TEMPORARY RESTRAINING ORDER,
PRELIMINARY OR PERMANENT INJUNCTION, THIS GUARANTY OR ANY OTHER LOAN DOCUMENT.
(E) ADVICE OF COUNSEL. EACH OF THE PARTIES REPRESENTS TO EACH
OTHER PARTY HERETO THAT IT HAS DISCUSSED THIS GUARANTY AND, SPECIFICALLY, THE
PROVISIONS OF THIS SECTION 14, WITH ITS COUNSEL.
SECTION 15. NO STRICT CONSTRUCTION. The parties hereto have
participated jointly in the negotiation and drafting of this Guaranty. In the
event an ambiguity or question of intent or interpretation arises, this Guaranty
shall be construed as if drafted jointly by the parties hereto
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and no presumption or burden of proof shall arise favoring or disfavoring any
party by virtue of the authorship of any provisions of this Guaranty.
SECTION 16. TAXES, INTEREST AFTER DEMAND; EXPENSES OF
ENFORCEMENT, ETC. All payments required to be made by Deason hereunder shall be
made without setoff or counterclaim and free and clear of and without deduction
or withholding for or on account of, any present or future taxes, levies,
imposts, duties or other charges of whatsoever nature imposed by any government
or any political or taxing authority thereof, PROVIDED, HOWEVER, that if Deason
is required by law to make such deduction or withholding, Deason shall forthwith
pay to the Agent or any Holder of Secured Obligations, as applicable, such
additional amount as results in the net amount received by the Agent or any
Holder of Secured Obligations, as applicable, equaling the full amount which
would have been received by the Agent or any Holder of Secured Obligations, as
applicable, had no such deduction or withholding been made. If any payment
hereunder is not paid within two (2) days of demand therefor under the terms
hereof, then interest on the unpaid amount shall be computed at a rate per annum
equal to ten percent (10%) (calculated on the basis of a 365 day year) or the
maximum rate permitted by law, whichever is less, until all past due amounts and
such interest thereon have been paid. Deason also agree to reimburse the Agent
and the Holders of Secured Obligations for any reasonable costs, internal
charges and out-of-pocket expenses (including reasonable attorneys' fees and
time charges of attorneys for the Agent and the Holders of Secured Obligations,
which attorneys may be employees of the Agent or the Holders of Secured
Obligations) paid or incurred by the Agent or any Holders of Secured Obligation
in connection with the collection and enforcement of amounts due under this
Guaranty.
SECTION 17. SETOFF. At any time after all or any part of the
Guaranteed Obligations have become due and payable (by acceleration or
otherwise), each Holder of Secured Obligations and the Agent may, without notice
to Deason and regardless of the acceptance of any security or collateral for the
payment hereof, appropriate and apply toward the payment of all or any part of
the Guaranteed Obligations (i) any indebtedness due or to become due from such
Holder of Secured Obligations or the Agent to Deason, and (ii) any moneys,
credits or other property belonging to Deason, at any time held by or coming
into the possession of such Holder of Secured Obligations or the Agent or any of
their respective affiliates.
SECTION 18. FINANCIAL INFORMATION. Deason hereby assumes
responsibility for keeping himself informed of the financial condition of the
Borrower and any and all endorsers and/or other guarantor of all or any part of
the Guaranteed Obligations, and of all other circumstances bearing upon the risk
of nonpayment of the Guaranteed Obligations, or any part thereof, that diligent
inquiry would reveal, and Deason hereby agrees that none of the Holders of
Secured Obligations or the Agent shall have any duty to advise Deason of
information known to any of them regarding such condition or any such
circumstances. In the event any Holder of Secured Obligations or the Agent, in
its sole discretion, undertakes at any time or from time to time to provide any
such information to Deason, such Holder of Secured Obligations or the Agent
shall be under no obligation (i) to undertake any investigation not a part of
its regular business routine, (ii) to disclose any information which such Holder
of Secured Obligations or the Agent, pursuant to accepted or reasonable
commercial finance or banking practices, wishes
11
<PAGE>
to maintain confidential or (iii) to make any other or future disclosures of
such information or any other information to Deason.
SECTION 19. SEVERABILITY. Wherever possible, each provision of
this Guaranty shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Guaranty shall be prohibited
by or invalid under such law, such provision shall be ineffective to the extent
of such prohibition or invalidity without invalidating the remainder of such
provision or the remaining provisions of this Guaranty.
SECTION 20. ENTIRE AGREEMENT. This Guaranty embodies the final
and entire agreement and understanding among Deason, the Agent and the Holders
of Secured Obligations and supersedes all prior agreements and understandings
among Deason, the Agent and the Holders of Secured Obligations relating to the
subject matter hereof. This Guaranty and the other Loan Documents may not be
contradicted by evidence of prior, contemporaneous or subsequent oral agreements
of the parties. There are no unwritten oral agreements between the parties
hereto.
SECTION 21. HEADINGS. Section headings in this Guaranty are
for convenience of reference only and shall not govern the interpretation of any
provision of this Guaranty.
12
<PAGE>
IN WITNESS WHEREOF, Deason has caused this Contingent Limited Guaranty
to be duly executed as of the day and year first above written.
DARWIN DEASON
/s/ Darwin Deason
--------------------------------
STATE OF TEXAS )
) SS.:
COUNTY OF TEXAS _ )
On this [25th] day of April, 2000, before me personally came
Darwin Deason, to me known who, being by me duly sworn, did acknowledge the
execution of this Contingent Limited Guaranty.
/s/ Traci Houpt
--------------------------------
Notary Public
(NOTARY STAMP/SEAL)
Accepted in Dallas, Texas ------------------
as of the [____] day of April, 2000 TRACI HOUPT
MY COMMISSION ENDS
BANK ONE, TEXAS, NA, as Agent MARCH 18, 2004
------------------
By:
-------------------------------------
Name:
Title:
13
<PAGE>
EXHIBIT A
TO
LIMITED GUARANTY
FORM OF PLEDGE AGREEMENT
PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT (the "Pledge Agreement"), dated as of
[_____________], 2000, is entered into by and between Darwin Deason, an
individual residing in Dallas, Texas (the "Pledgor"), and Bank One, Texas, NA,
as contractual representative (the "Agent") for itself and for the "Holders of
Secured Obligations" under (and as defined in) the Credit Agreement defined
below. Capitalized terms used herein and not otherwise defined herein shall have
the respective meanings ascribed to such terms in the Credit Agreement (as
defined below).
WITNESSETH:
WHEREAS, Precept Business Services, Inc., a Texas corporation
(the "Borrower"), the Agent and certain financial institutions (the "Lenders")
have entered into a certain Credit Agreement dated as of March 22, 1999, as
previously amended by Amendment and Waiver No. 1 thereto dated as of May 14,
1999, Amendment and Waiver No. 2 thereto dated as of November 12, 1999 and
Amendment and Waiver No. 3 thereto dated as of April 27, 2000 (as so amended and
as further amended, modified, supplements and or restated from time to time, the
"Credit Agreement"), pursuant to which the Lenders have agreed, subject to
certain conditions precedent, to make loans and other financial accommodations
to the Borrower from time to time;
WHEREAS, the Pledgor owns approximately 14.8% of the
outstanding Capital Stock (Class A Common Stock and Class B Common Stock) of the
Borrower acknowledges and agrees that the making of the Loans, including the
Provisional Loan, and the extension of the other financial accommodations under
the Credit Agreement and the other Loan Documents to the Borrower is, and will
continue to be, of direct economic benefit to the Pledgor;
WHEREAS, SCHEDULE I hereto sets forth certain shares of
Affiliated Computer Services, Inc. ("ACS") initially being pledged hereunder
(the "Initial Pledged Shares"), which Initial Pledged Shares have a current
market value of not less than $3,021,333.34 (utilizing for purposes of valuation
the average closing price over the five (5) immediately preceding trading days
for such stock);
<PAGE>
WHEREAS, Pledgor may from time to time execute and deliver to
the Agent a supplement to this Pledge Agreement substantially in the form of
EXHIBIT A hereto (each such supplement, a "Pledge Supplement") setting forth
additional shares of ACS (the "Additional Pledged Shares") (the Initial Pledged
Shares and the Additional Pledged Shares, collectively referred to herein as the
"Pledged Shares");
WHEREAS, the Pledgor has executed and delivered to the Agent
that certain Limited Guaranty dated as of April 27, 2000 (the "Limited
Guaranty"); and
WHEREAS, the Agent and the Lenders have required, as a
condition to their continued extension of credit and financial accommodations
under the Credit Agreement, that the Pledgor execute and deliver this Pledge
Agreement;
NOW, THEREFORE, for and in consideration of the foregoing and
of any financial accommodations or extensions of credit (including, without
limitation, any loan or advance by renewal, refinancing or extension of the
agreements described hereinabove or otherwise) heretofore, now or hereafter made
to or for the benefit of the Borrower pursuant to the Credit Agreement or any
other agreement, instrument or document executed pursuant to or in connection
therewith, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Pledgor and the Agent hereby
agree as follows:
1. PLEDGE. The Pledgor hereby pledges to the Agent, for
the benefit of the Agent and the Holders of Secured Obligations, and grants to
the Agent for the benefit of the Agent and the Holders of Secured Obligations, a
security interest in, the collateral described in SECTIONS 1.1 through 1.3 below
(collectively as of the date the same is pledged to the Agent, the "Pledged
Collateral"):
1.1 (a) The shares of the capital stock of ACS owned by
the Pledgor (such shares being identified on SCHEDULE I attached hereto
or on any SCHEDULE I attached to any applicable Pledge Supplement), and
the certificates representing the shares of such capital stock (all of
said capital stock being hereinafter collectively referred to as the
"Pledged Stock"), delivered herewith, or from time to time, delivered
to the Agent accompanied by stock powers in the form of EXHIBIT B
attached hereto and made a part hereof (the "Powers") duly executed in
blank, and all dividends, cash, instruments, investment property and
other property from time to time received, receivable or otherwise
distributed in respect of, or in exchange for, any or all of the
Pledged Stock.
(b) The additional shares of capital stock of ACS as required
to be delivered pursuant to SECTION 3.2 below, and the certificates,
which shall be delivered to the Agent, representing such additional
shares (any such additional shares shall constitute part of the Pledged
Stock and the Agent is irrevocably authorized to unilaterally amend
SCHEDULE I hereto or on any SCHEDULE I to any applicable Pledge
Supplement to reflect such additional shares), and all dividends, cash,
instruments, investment property and other rights and options from time
to time received, receivable or otherwise distributed in respect of or
in exchange for any or all of such shares.
<PAGE>
1.2 The property and interests in property described in
SECTION 3 below; and
1.3 All proceeds of the collateral described in SECTIONS
1.1 and 1.2 above.
2. SECURITY FOR OBLIGATIONS. The Pledged Collateral secures
the prompt payment, performance and observance of the "Guaranteed Obligations"
(as defined in the Limited Guaranty).
3. PLEDGED COLLATERAL ADJUSTMENTS; ADDITIONAL PLEDGED SHARES.
3.1 PLEDGED COLLATERAL ADJUSTMENTS. If, during the term of
this Pledge Agreement:
(a) Any stock dividend, reclassification, readjustment or
other change is declared or made in the capital structure of ACS, or
(b) Any subscription warrants or any other rights or options
shall be issued in connection with the Pledged Collateral,
then all new, substituted and additional certificates, shares,
warrants, rights, options, investment property or other securities,
issued by reason of any of the foregoing, in connection with Pledged
Collateral shall be immediately delivered to and held by the Agent
under the terms of this Pledge Agreement and shall constitute Pledged
Collateral hereunder.
3.2 ADDITIONAL PLEDGED SHARES. The Pledgor and the Agent agree
that on the last business day of each calendar quarter (or more
frequently if requested by the Agent), the "Market Value" (as defined
below) of the Pledged Stock will be calculated and if, at the time of
such calculation, the Market Value of the Pledged Stock is less than an
amount equal to 1.33333 multiplied by the Provisional Loan Commitment,
then within three (3) Business Days the Pledgor will deliver to the
Agent an executed Pledge Supplement together with additional ACS Class
A Common Stock (together with Powers with respect thereto) having a
Market Value such that when added when added to the Market Value of the
previously Pledged Stock is equal to or greater than 1.33333 multiplied
by the Provisional Loan Commitment. "Market Value" for the Pledged
Stock shall be equal to the average closing price over the five (5)
trading days immediately preceding the applicable date of any
calculation for such stock on the New York Stock Exchange.
4. SUBSEQUENT CHANGES AFFECTING PLEDGED COLLATERAL. The
Pledgor represents and warrants that it has made its own arrangements for
keeping itself informed of changes or potential changes affecting the Pledged
Collateral (including, but not limited to, rights to convert, rights to
subscribe, payment of dividends, cash distributions or other distributions
reorganization or other exchanges, tender offers and voting rights), and the
Pledgor agrees that neither the Agent nor any of the Holders of Secured
Obligations shall have any obligation to inform the Pledgor of any such changes
or potential changes or to take any action or omit to take any action with
respect thereto. The Agent may, after the occurrence of a default by the Pledgor
hereunder or under the Limited Guaranty ( a "Specified Default"), without notice
and at its option, transfer or
<PAGE>
register the Pledged Collateral or any part thereof into its or its nominee's
name with or without any indication that such Pledged Collateral is subject to
the security interest hereunder. In addition, the Agent may after the occurrence
of a Specified Default exchange certificates or instruments representing or
evidencing Pledged Shares for certificates or instruments of smaller or larger
denominations.
5. REPRESENTATIONS AND WARRANTIES. The Pledgor represents and
warrants as follows:
(a) The Pledgor is the sole legal and beneficial owner of the
Pledged Collateral, free and clear of any pledge, mortgage,
hypothecation, Lien, charge, encumbrance or any security
interest therein except for the security interest created by
this Pledge Agreement;
(b) The Pledgor has owned the Pledged Collateral of record and
beneficially for at least the two (2) year holding period
required under paragraph (k) of Rule 144 as promulgated by the
Securities and Exchange Commission under the Securities Act
("RULE 144") and if any of the Pledged Collateral was acquired
by the Pledgor by purchase, the purchase price has been paid
for in full for at least two (2) years and after the
occurrence of a Specified Default, assuming the Agent is not
then an affiliate (as defined in Rule 144) of ACS, the sale by
the Agent of the Pledged Collateral could be made by or on
behalf of the Agent without compliance with Rule 144;
(c) There are no restrictions upon the voting rights
associated with, or upon the transfer of, any of the Pledged
Collateral;
(d) The Pledgor has the right to vote, pledge and grant a
security interest in or otherwise transfer such Pledged
Collateral free of any Liens;
(e) The pledge of the Pledged Collateral does not violate (1)
any mortgage, bank loan or credit agreement or other
agreements to which the Pledgor is a party or by which any of
his assets may be bound; or (2) any restriction on such
transfer or encumbrance of such Pledged Collateral;
(f) The Pledgor agrees to execute and file financing
statements pursuant to the Uniform Commercial Code as the
Agent may request to perfect the security interest granted
hereby;
(g) No authorization, approval, or other action by, and no
notice to or filing with, any governmental authority or
regulatory body is required either (i) for the pledge of the
Pledged Collateral pursuant to this Pledge Agreement or for
the execution, delivery or performance of this Pledge
Agreement by the Pledgor or (ii) for the exercise by the Agent
of the remedies in respect of the Pledged Collateral pursuant
to this Pledge Agreement (except as may be required in
connection with such disposition by laws affecting the
offering and sale of securities generally);
<PAGE>
(h) Upon delivery of each of the certificates representing the
Pledged Collateral, the pledge of the Pledged Collateral
pursuant to this Pledge Agreement will create a valid and
perfected first priority security interest in the Pledged
Collateral, in favor of the Agent for the benefit of the Agent
and the Holders of Secured Obligations, securing the payment
and performance of the Guaranteed Obligations;
(i) The Powers are duly executed and give the Agent the
authority they purport to confer;
(j) The Pledgor has no obligation to make further capital
contributions or make any other payments to ACS with
respect to his interest therein; and
(k) The information set forth on the questionnaire attached
hereto as EXHIBIT C and made a part hereof, and any
subsequent questionnaire supplied by the Pledgor (each, a
"QUESTIONNAIRE"), is and will be true and complete in all
material respects.
6. VOTING RIGHTS. During the term of this Pledge Agreement,
and except as provided in this SECTION 6 below, the Pledgor shall have the right
to vote the Pledged Stock on all governing questions in a manner not
inconsistent with the terms of this Pledge Agreement. After the occurrence of a
Specified Default, the Agent or the Agent's nominee may, at the Agent's or such
nominee's option and upon written notice from the Agent to the Pledgor, (i)
exercise all voting powers pertaining to the Pledged Collateral and (ii)
exercise, or direct the Pledgor as to the exercise of any and all rights of
conversion, exchange, subscription or any other rights, privileges or options
pertaining to the applicable Pledged Collateral, as if the Agent were the
absolute owner thereof, all without liability except to account for property
actually received by it, but the Agent shall have no duty to exercise any of the
aforesaid rights, privileges or options and shall not be responsible for any
failure so to do or delay in so doing. Such authorization shall constitute an
irrevocable voting proxy from the Pledgor to the Agent or, at the Agent's
option, to the Agent's nominee.
7. DIVIDENDS AND OTHER DISTRIBUTIONS. (a) So long as no
Specified Default shall have occurred and is continuing:
(i) The Pledgor shall be entitled to receive and retain any
and all dividends and cash distributions paid in respect of the Pledged
Collateral, PROVIDED, HOWEVER, that any and all
(A) distributions and dividends paid or payable other
than in cash with respect to, and instruments and other
property received, receivable or otherwise distributed with
respect to, or in exchange for, any of the Pledged Collateral;
(B) dividends and other distributions paid or payable
in cash with respect to any of the Pledged Collateral on
account of a partial or total liquidation or dissolution or in
connection with a reduction of capital, capital surplus or
paid-in
<PAGE>
surplus; and
(C) cash paid, payable or otherwise distributed with
respect to principal of, or in redemption of, or in exchange
for, any of the Pledged Collateral;
shall be Pledged Collateral, and shall be forthwith delivered to the
Agent to hold, for the benefit of the Agent and the Holders of Secured
Obligations, as Pledged Collateral and shall, if received by the
Pledgor, be received in trust for the Agent, for the benefit of the
Agent and the Holders of Secured Obligations, be segregated from the
other property or funds of the Pledgor, and be delivered immediately to
the Agent as Pledged Collateral in the same form as so received (with
any necessary endorsement); and
(ii) The Agent shall execute and deliver (or cause to be
executed and delivered) to the Pledgor all such proxies and other
instruments as the Pledgor may reasonably request for the purpose of
enabling the Pledgor to receive the dividends or interest payments
which it is authorized to receive and retain pursuant to CLAUSE (i)
above.
(b) After the occurrence and during the continuance of a Specified
Default:
(i) All rights of the Pledgor to receive the dividends and
distributions which it would otherwise be authorized to receive and
retain pursuant to SECTION 7(a)(i) hereof shall cease, and all such
rights shall thereupon become vested in the Agent, for the benefit of
the Agent and the Holders of Secured Obligations, which shall thereupon
have the sole right to receive and hold as Pledged Collateral such
dividends and distributions;
(ii) All dividends and distributions which are received by the
Pledgor contrary to the provisions of CLAUSE (i) of this SECTION 7(b)
shall be received in trust for the Agent, for the benefit of the Agent
and the Holders of Secured Obligations, shall be segregated from other
funds of the Pledgor and shall be paid over immediately to the Agent as
Pledged Collateral in the same form as so received (with any necessary
endorsements);
(iii) The Pledgor shall, upon the request of the Agent, at
Borrower's expense, execute and deliver all such instruments and
documents, and do or cause to be done all such other acts and things,
as may be necessary or, in the opinion of the Agent or its counsel,
advisable to register the applicable Pledged Collateral under the
provisions of the Securities Act of 1933, as amended (the "Securities
Act") and to exercise its reasonable efforts to cause the registration
statement relating thereto to become effective and to remain effective
for such period as prospectuses are required by law to be furnished,
and to make all amendments and supplements thereto and to the related
prospectus which, in the opinion of the Agent or its counsel, are
necessary or advisable, all in conformity with the requirements of the
Securities Act and the rules and regulations of the Securities and
Exchange Commission applicable thereto;
(iv) The Pledgor shall, upon the request of the Agent, at
Borrower's expense, use its reasonable efforts to qualify the Pledged
Collateral under state securities or "Blue Sky" laws and to obtain all
necessary governmental approvals for the sale of the Pledged
<PAGE>
Collateral, as requested by the Agent; and
(v) The Pledgor shall, upon the request of the Agent, at the
Borrower's expense, do or cause to be done all such other acts and
things as may be necessary to make such sale of the Pledged Collateral
or any part thereof valid and binding and in compliance with applicable
law.
The Borrower will reimburse the Agent and/or the Holders of Secured Obligations
for all expenses incurred by the Agent and/or the Holders of Secured
Obligations, including, without limitation, reasonable attorneys' and
accountants' fees and expenses in connection with the foregoing. Upon or at any
time after the occurrence of a Specified Default, if the Agent determines that,
prior to any public offering of any securities constituting part of the Pledged
Collateral and Rule 144 under the Securities Act of 1933 is not available for
the proposed sale, such securities should be registered under the Securities Act
and/or registered or qualified under any other federal or state law and such
registration and/or qualification is not practicable, then the Pledgor agrees
that it will be commercially reasonable if a private sale, upon at least five
(5) Business Days' notice to the Pledgor, is arranged so as to avoid a public
offering, even though the sales price established and/or obtained at such
private sale may be substantially less then prices which could have been
obtained for such security on any market or exchange or in any other public
sale.
(c) Upon the Agent's request following a determination that
due to a change in the interpretation of Rule 144 or otherwise the sale
by the Agent of the Pledged Collateral would require compliance with
Rule 144, the Pledgor shall:
(i) use his reasonable efforts to cause ACS to comply
at all times and on a timely basis with the requirements of
paragraph (c) of Rule 144 to the extent required to permit a
sale of the Pledged Stock in compliance with Rule 144 and
promptly notify the Agent if such Pledgor obtains knowledge
that ACS has failed at any time to comply with such
requirements;
(ii) complete and execute one or more Forms 144 or
fully cooperate in the completion and execution of one or more
Forms 144 if completed and/or executed by the Agent, to the
extent required to permit the sale of the Pledged Stock in
compliance with Rule 144; and
(iii) complete and maintain current a Questionnaire
containing such information as the Agent reasonably requests
in connection with the Agent's ability to comply with Rule 144
in any sale of Pledged Stock including, without limitation,
the delivery of a completed Questionnaire contemporaneously
with the delivery of the Pledged Stock.
8. TRANSFERS AND OTHER LIENS. The Pledgor agrees that it will
not (i) sell or otherwise dispose of, or grant any option with respect to, any
of the Pledged Collateral without the prior written consent of the Agent, or
(ii) create or permit to exist any Lien upon or with respect to any of the
Pledged Collateral, except for the security interest under this Pledge
<PAGE>
Agreement.
9. REMEDIES. (a) The Agent shall have, in addition to any
other rights given under this Pledge Agreement or by law, all of the rights and
remedies with respect to the Pledged Collateral of a secured party under the
Uniform Commercial Code as in effect in the State of Texas. The Agent
(personally or through an agent) is hereby authorized and empowered to transfer
and register in its name or in the name of its nominee the whole or any part of
the Pledged Collateral, to exercise all voting rights with respect thereto, to
collect and receive all cash dividends or distributions and other distributions
made thereon, and to otherwise act with respect to the Pledged Collateral as
though the Agent were the outright owner thereof, the Pledgor hereby irrevocably
constituting and appointing the Agent as the proxy and attorney-in-fact of the
Pledgor, with full power of substitution to do so, provided, however, that the
Agent shall have no duty to exercise any such right or to preserve the same and
shall not be liable for any failure to do so or for any delay in doing so;
PROVIDED, FURTHER, however that the Agent agrees to exercise such proxy and
powers contained in this sentence only so long as a Specified Default shall have
occurred and is continuing and following written notice thereof. In addition,
after the occurrence of a Specified Default, the Agent shall have such powers of
sale and other powers as may be conferred by applicable law. With respect to the
Pledged Collateral or any part thereof which shall then be in or shall
thereafter come into the possession or custody of the Agent or which the Agent
shall otherwise have the ability to transfer under applicable law, the Agent
may, in its sole discretion, without notice except as specified below, after the
occurrence of a Specified Default, sell or cause the same to be sold at any
exchange, broker's board or at public or private sale, in one or more sales or
lots, at such price as the Agent may deem best, for cash or on credit or for
future delivery, without assumption of any credit risk, and the purchaser of any
or all of the Pledged Collateral so sold shall thereafter own the same,
absolutely free from any claim, encumbrance or right of any kind whatsoever. The
Agent and each of the Holders of Secured Obligations may, in its own name, or in
the name of a designee or nominee, buy the Pledged Collateral at any public sale
and, if permitted by applicable law, buy the Pledged Collateral at any private
sale. The Borrower will pay to the Agent all reasonable expenses (including,
without limitation, court costs and reasonable attorneys' and paralegals' fees
and expenses) of, or incidental to, the enforcement of any of the provisions
hereof. The Agent agrees to distribute any proceeds of the sale of the Pledged
Collateral in accordance with the Credit Agreement and the Pledgor shall remain
liable for any deficiency following the sale of the Pledged Collateral, subject
to the limitations or liability set forth in the Limited Guaranty.
(b) The Agent will give the Pledgor reasonable notice of the
time and place of any public sale thereof, or of the time after which any
private sale or other intended disposition is to be made. Any sale of the
Pledged Collateral conducted in conformity with reasonable commercial practices
of banks, commercial finance companies, insurance companies or other financial
institutions disposing of property similar to the Pledged Collateral shall be
deemed to be commercially reasonable. Notwithstanding any provision to the
contrary contained herein, the Pledgor agrees that any requirements of
reasonable notice shall be met if such notice is received by the Pledgor as
provided in SECTION 19 below at least five (5) Business Days before the time of
the sale or disposition; provided, however, that Agent may give any shorter
notice that is commercially reasonable under the circumstances. Any other
requirement of notice, demand or
<PAGE>
advertisement for sale is waived, to the extent permitted by law.
(c) In view of the fact that federal and state securities laws
may impose certain restrictions on the method by which a sale of the Pledged
Collateral may be effected after a Specified Default, the Pledgor agrees that
after the occurrence of a Specified Default, the Agent may, from time to time,
attempt to sell all or any part of the Pledged Collateral by means of a private
placement restricting the bidders and prospective purchasers to those who are
qualified and will represent and agree that they are purchasing for investment
only and not for distribution. In so doing, the Agent may solicit offers to buy
the Pledged Collateral, or any part of it, from a limited number of investors
deemed by the Agent, in its reasonable judgment, to be financially responsible
parties who might be interested in purchasing the Pledged Collateral. If the
Agent solicits such offers from not less than four (4) such investors, then the
acceptance by the Agent of the highest offer obtained therefrom shall be deemed
to be a commercially reasonable method of disposing of such Pledged Collateral;
provided, however, that this Section does not impose a requirement that the
Agent solicit offers from four or more investors in order for the sale to be
commercially reasonable.
10. AGENT APPOINTED ATTORNEY-IN-FACT. The Pledgor hereby
appoints the Agent its attorney-in-fact, coupled with an interest, with full
authority, in the name of the Pledgor or otherwise, from time to time in the
Agent's sole discretion, to take any action and to execute any instrument which
the Agent may deem necessary or advisable to accomplish the purposes of this
Pledge Agreement, including, without limitation, to receive, endorse and collect
all instruments made payable to the Pledgor representing any dividend,
distribution, interest payment or other distribution in respect of the Pledged
Collateral or any part thereof and to give full discharge for the same and to
arrange for the transfer of all or any part of the Pledged Collateral on the
books of ACS to the name of the Agent or the Agent's nominee; PROVIDED, HOWEVER
that the Agent agrees to exercise such powers only so long as a Specified
Default shall have occurred and is continuing.
11. WAIVERS. (i) The Pledgor waives presentment and demand for
payment of any of the Guaranteed Obligations, protest and notice of dishonor or
Specified Default with respect to any of the Guaranteed Obligations and all
other notices to which the Pledgor might otherwise be entitled except as
otherwise expressly provided herein or in the Credit Agreement.
(ii) The Pledgor understands and agrees that his obligations
and liabilities under this Pledge Agreement shall remain in full force and
effect, notwithstanding foreclosure of any real property securing all or any
part of the Guaranteed Obligations by trustee sale or any other reason impairing
the right of the Pledgor, the Agent or any of the Holders of Secured Obligations
to proceed against any other guarantor or such guarantor's property. The Pledgor
agrees that all of its obligations under this Pledge Agreement shall remain in
full force and effect without defense, offset or counterclaim of any kind,
notwithstanding that the Pledgor's rights may be impaired, destroyed or
otherwise affected by reason of any action or inaction on the part of the Agent
or any Holder of Secured Obligations.
12. TERM. This Pledge Agreement shall remain in full force and
effect until (a)
<PAGE>
all "Guaranteed Obligations" (as defined in the Limited Guaranty) shall have
been paid in full in cash and the Commitments and all Letters of Credit issued
under the Credit Agreement shall have terminated or expired or (b) a "Release
Event" (as defined in the Limited Guaranty) occurs. Upon the termination of this
Pledge Agreement as provided above (other than as a result of the sale of the
Pledged Collateral), the Agent will release the security interest created
hereunder and, if it then has possession of the Pledged Stock, will deliver the
Pledged Stock and the Powers to the Pledgor. If at any time any payment of the
principal of or interest on any Note, any Reimbursement Obligation or any other
amount payable by the Borrower or any other party under the Credit Agreement,
any Hedging Agreement or any other Loan Document is rescinded or must be
otherwise restored or returned upon the insolvency, bankruptcy or reorganization
of the Borrower or otherwise, and the Pledgor's obligations hereunder with
respect to such payment shall be reinstated as though such payment had been due
but not made at such time and the Pledgor shall redeliver the Pledged Stock and
Powers to the Agent.
13. DEFINITIONS. The singular shall include the plural and
vice versa and any gender shall include any other gender as the context may
require.
14. SUCCESSORS AND ASSIGNS. This Pledge Agreement shall be
binding upon and inure to the benefit of the Pledgor, the Agent, for the benefit
of itself and the Holders of Secured Obligations, and their respective heirs,
successors and assigns. The Pledgor's heirs, successors and assigns shall
include, without limitation, a receiver, trustee or debtor-in-possession of or
for the Pledgor.
15. GOVERNING LAW. THIS PLEDGE AGREEMENT IS BEING EXECUTED AND
DELIVERED, AND IS INTENDED TO BE PERFORMED, IN DALLAS, TEXAS, AND THE
SUBSTANTIVE LAWS OF THE STATE OF TEXAS SHALL GOVERN THE VALIDITY, CONSTRUCTION,
ENFORCEMENT AND INTERPRETATION OF THIS PLEDGE AGREEMENT AND ALL OTHER LOAN
DOCUMENTS. ANY DISPUTE BETWEEN THE PLEDGOR AND THE AGENT, ANY LENDER OR ANY
HOLDER OF SECURED OBLIGATIONS ARISING OUT OF, CONNECTED WITH, RELATED TO, OR
INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN THEM IN CONNECTION WITH, THIS
PLEDGE AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS, AND WHETHER ARISING IN
CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE RESOLVED IN ACCORDANCE WITH THE
SUBSTANTIVE LAWS OF THE STATE OF TEXAS, BUT GIVING EFFECT TO FEDERAL LAWS
APPLICABLE TO NATIONAL BANKS.
16. CONSENT TO JURISDICTION; SERVICE OF PROCESS; JURY TRIAL.
(A) THE PLEDGOR HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE
JURISDICTION OF ANY UNITED STATES FEDERAL OR TEXAS STATE COURT SITTING IN
DALLAS, TEXAS IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO ANY LOAN
DOCUMENTS AND THE PLEDGOR HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT
OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY
<PAGE>
SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION HE MAY NOW OR HEREAFTER HAVE AS
TO THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR
THAT SUCH COURT IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT THE RIGHT
OF THE AGENT OR ANY LENDER TO BRING PROCEEDINGS AGAINST THE PLEDGOR IN THE
COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL PROCEEDING BY THE PLEDGOR AGAINST
THE AGENT OR ANY LENDER OR ANY AFFILIATE OF THE AGENT OR ANY LENDER INVOLVING,
DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF, RELATED TO, OR
CONNECTED WITH ANY LOAN DOCUMENT SHALL BE BROUGHT ONLY IN A COURT IN DALLAS,
TEXAS.
(B) SERVICE OF PROCESS. DEASON WAIVES PERSONAL SERVICE OF ANY PROCESS
UPON HIM AND IRREVOCABLY APPOINTS THE GENERAL COUNSEL OF AFFILIATED COMPUTER
SERVICES INC. (THE ADDRESS FOR WHICH IS 2828 NORTH HASKELL AVENUE, 10TH FLOOR,
DALLAS, TEXAS, 75204) AS THE PLEDGOR'S AGENT FOR THE PURPOSE OF ACCEPTING
SERVICE OF PROCESS ISSUED BY ANY COURT. NOTHING HEREIN SHALL IN ANY WAY BE
DEEMED TO LIMIT THE ABILITY OF THE AGENT OR THE LENDERS TO SERVE ANY SUCH WRITS,
PROCESS OR SUMMONSES IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW THE PLEDGOR
IRREVOCABLY WAIVES ANY OBJECTION (INCLUDING, WITHOUT LIMITATION, ANY OBJECTION
OF THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS) WHICH HE
MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING WITH
RESPECT TO THIS PLEDGE AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT
EXECUTED OR DELIVERED IN CONNECTION HEREWITH IN ANY JURISDICTION SET FORTH
ABOVE.
(C) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES
ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING
IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED TO OR
INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS
PLEDGE AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR
DELIVERED IN CONNECTION HEREWITH. EACH OF THE PARTIES HERETO AGREES AND CONSENTS
THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT
TRIAL WITHOUT A JURY AND THAT ANY PARTY HERETO MAY FILE AN ORIGINAL COUNTERPART
OR A COPY OF THIS PLEDGE AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE
CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
(D) WAIVER OF BOND. THE PLEDGOR WAIVES THE POSTING OF ANY BOND
OTHERWISE REQUIRED OF ANY PARTY HERETO IN CONNECTION WITH ANY
<PAGE>
JUDICIAL PROCESS OR PROCEEDING TO REALIZE ON THE COLLATERAL ENFORCE ANY JUDGMENT
OR OTHER COURT ORDER ENTERED IN FAVOR OF SUCH PARTY, OR TO ENFORCE BY SPECIFIC
PERFORMANCE, TEMPORARY RESTRAINING ORDER, PRELIMINARY OR PERMANENT INJUNCTION,
THIS PLEDGE AGREEMENT OR ANY OTHER LOAN DOCUMENT.
(E) ADVICE OF COUNSEL. EACH OF THE PARTIES REPRESENTS TO EACH OTHER
PARTY HERETO THAT IT HAS DISCUSSED THIS PLEDGE AGREEMENT AND, SPECIFICALLY, THE
PROVISIONS OF THIS SECTION 16, WITH ITS COUNSEL.
17. NO STRICT CONSTRUCTION. The parties hereto have
participated jointly in the negotiation and drafting of this Pledge Agreement.
In the event an ambiguity or question of intent or interpretation arises, this
Pledge Agreement shall be construed as if drafted jointly by the parties hereto
and no presumption or burden of proof shall arise favoring or disfavoring any
party by virtue of the authorship of any provisions of this Pledge Agreement.
18. SEVERABILITY. Whenever possible, each provision of this
Pledge Agreement shall be interpreted in such manner as to be effective and
valid under applicable law, but, if any provision of this Pledge Agreement shall
be held to be prohibited or invalid under applicable law, such provision shall
be ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Pledge Agreement.
19. FURTHER ASSURANCES. The Pledgor agrees that he will
cooperate with the Agent and will execute and deliver, or cause to be executed
and delivered, all such other stock powers, proxies, instruments and documents,
and will take all such other actions, including, without limitation, the
execution and filing of financing statements, as the Agent may reasonably
request from time to time in order to carry out the provisions and purposes of
this Pledge Agreement.
20. THE AGENT'S DUTY OF CARE. The Agent shall not be liable
for any acts, omissions, errors of judgment or mistakes of fact or law
including, without limitation, acts, omissions, errors or mistakes with respect
to the Pledged Collateral, except for those arising out of or in connection with
the Agent's (i) Gross Negligence or willful misconduct, or (ii) failure to use
reasonable care with respect to the safe custody of the Pledged Collateral in
the Agent's possession. Without limiting the generality of the foregoing, the
Agent shall be under no obligation to take any steps necessary to preserve
rights in the Pledged Collateral against any other parties but may do so at its
option. All expenses incurred in connection therewith shall be for the sole
account of the Pledgor, and shall constitute part of the Guaranteed Obligations
secured hereby. THE PARTIES INTEND FOR THE EXCULPATORY PROVISIONS OF THIS
SECTION 20 TO APPLY AND PROTECT THE AGENT FROM THE CONSEQUENCES OF ITS OWN
NEGLIGENCE, WHETHER OR NOT THAT NEGLIGENCE IS THE SOLE, CONTRIBUTING OR
CONCURRING CAUSE OF ANY CLAIM.
21. NOTICES. All notices and other communications required or
desired to be served, given or delivered hereunder shall be given in the manner
and to the addresses set forth in
<PAGE>
the Credit Agreement.
22. AMENDMENTS, WAIVERS AND CONSENTS. No amendment or waiver
of any provision of this Pledge Agreement nor consent to any departure by the
Pledgor herefrom, shall in any event be effective unless the same shall be in
writing and signed by the Agent pursuant to the terms of the Credit Agreement,
and then such amendment, waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given.
23. SECTION HEADINGS. The section headings herein are for
convenience of reference only, and shall not affect in any way the
interpretation of any of the provisions hereof.
24. EXECUTION IN COUNTERPARTS. This Pledge Agreement may be
executed in any number of counterparts, each of which shall be an original, but
all of which shall together constitute one and the same agreement.
25. MERGER. This Pledge Agreement and the other Loan Documents
embody the final and entire agreement and understanding among the Pledgor, the
Agent and the Holders of Secured Obligations and supersede all prior agreements
and understandings among the Pledgor, the Agent and the Holders of Secured
Obligations relating to the subject matter thereof. This Pledge Agreement and
the other Loan Documents may not be contradicted by evidence of prior,
contemporaneous or subsequent oral agreements of the parties. There are no
unwritten oral agreements between the parties hereto.
<PAGE>
IN WITNESS WHEREOF, the Pledgor and the Agent have executed
this Pledge Agreement as of the date set forth above.
DARWIN DEASON
---------------------------------
BANK ONE, TEXAS, NA, as agent for itself and
the Holders of Secured Obligations
By:
------------------------------
Name:
Title:
<PAGE>
SCHEDULE I
to
PLEDGE AGREEMENT
dated as of [_____________], 2000
INITIAL PLEDGED SHARES
NUMBER OF SHARES OF ACS CERTIFICATE NUMBER
<PAGE>
EXHIBIT A
to
PLEDGE AGREEMENT
dated as of [___________], 2000
Form of Pledge Supplement
Reference is hereby made to the Pledge Agreement (the "Pledge
Agreement") dated as of the [___] day of [________], 2000, by and between Darwin
Deason (the "Pledgor") and Bank One, Texas, NA, as contractual representative
(the "Agent"), whereby the Pledgor has pledged certain capital stock of
Affiliated Computer Services, Inc. ("ACS") as collateral to the Agent, for the
ratable benefit of the Holders of Secured Obligations, as more fully described
in the Pledge Agreement. This Supplement is a "Pledge Supplement" as defined in
the Pledge Agreement and is, together with the certificates and Powers delivered
herewith, subject in all respects to the terms and provisions of the Pledge
Agreement. Capitalized terms used herein and not defined herein shall have the
meanings given to them in the Pledge Agreement.
By its execution below, the Pledgor hereby agrees that (i) the
capital stock of ACS listed on the SCHEDULE I hereto shall be pledged to the
Agent as additional collateral pursuant to SECTION [1.[_]][3.2] of the Pledge
Agreement and (ii) such property shall be considered Pledged Stock under the
Pledge Agreement and be a part of the Pledged Collateral pursuant to the Pledge
Agreement.
By its execution below, the Pledgor represents and warrants that the
representations and warranties contained in SECTION 5 of the Pledge Agreement
are true and correct in all respects as of the date hereof and after taking into
account the pledge of the additional Pledged Stock relating hereto.
<PAGE>
IN WITNESS WHEREOF, the Pledgor has executed and delivered this
Pledge Supplement to the Pledge Agreement as of this __________ day of
_________, ____.
DARWIN DEASON
------------------------
<PAGE>
SCHEDULE I
TO
PLEDGE SUPPLEMENT
ADDITIONAL PLEDGED STOCK
NUMBER OF SHARES OF ACS CERTIFICATE NUMBER
<PAGE>
EXHIBIT B
to
PLEDGE AGREEMENT
dated as of [___________], 2000
Form of Stock Power
STOCK POWER
FOR VALUE RECEIVED, the undersigned does hereby sell, assign
and transfer to _____________________________ _____ Shares of Common Stock of
Affiliated Computer Services, Inc., a __________ corporation, represented by
Certificate No. __ (the "Stock"), standing in the name of the undersigned on the
books of said corporation and does hereby irrevocably constitute and appoint
___________________________________ as the undersigned's true and lawful
attorney, for it and in its name and stead, to sell, assign and transfer all or
any of the Stock, and for that purpose to make and execute all necessary acts of
assignment and transfer thereof; and to substitute one or more persons with like
full power, hereby ratifying and confirming all that said attorney or substitute
or substitutes shall lawfully do by virtue hereof.
Dated: _______________
DARWIN DEASON
-------------------------
<PAGE>
EXHIBIT C
to
PLEDGE AGREEMENT
dated as of [___________], 2000
Form of Questionnaire
INFORMATIONAL EXHIBIT - PLEDGE OF SECURITIES
In connection with the undersigned's pledge of the following
capital stock of Affiliated Computer Services, Inc. (the "Securities") to Bank
One Texas, N.A., as agent (the "Agent"):
<TABLE>
<CAPTION>
CLASS AMOUNT
NAME OF ISSUER OF SECURITIES PLEDGED
-------------- ------------- -------
<S> <C> <C>
Affiliated Computer Services, Inc. Class A Common Stock ________ Shares
Par Value $__________
</TABLE>
the undersigned warrants and represents that the answers which he is hereby
providing to the following questions are to the best of the undersigned's
knowledge, complete, true, accurate and not misleading in any way and that if
the undersigned, at any time, receives any information which would in any way
make such answer incomplete, untrue, inaccurate or misleading (either at the
time such answer was given or at some later time), the undersigned will
immediately notify the Agent of the existence of such information and, provide
the Agent with all such information within ten (10) business days of the
undersigned's receipt thereof.
Part I
1. How did you acquire the Securities? Were any of the Securities ever
registered under the Securities Act of 1933? Are any of the Securities
subject to any restrictions on their transferability? Provide details
with respect to each class or issue of the Securities in order to
substantiate and clarify your answers.
[_______________________________]
2. Are any of the Securities part of an issue or class which is regularly
traded on one or more securities exchanges or quotation systems? If so,
please identify all such exchanges and systems.
[_______________________________]
3. Are any of the Securities "restricted securities" within the meaning of
Rule 144 of the
<PAGE>
Securities Act of 1933 -- i.e., securities acquired directly or
indirectly from the issuer thereof, or from any affiliate of such
issuer, in a transaction or chain of transactions not involving any
public offering?
[_______________________________]
4. Do you own or have a beneficial interest in any other securities issued
by the issuer of the Securities? If so, provide details and set forth
the amounts of each such security that you hold.
[_______________________________]
5. Do any of the following persons or entities own of record or have a
beneficial interest in any securities issued by the issuer of the
Securities? If so, provide details and set forth the amounts of each
such security that each such person holds.
(a) Your spouse or any relative of either you or your spouse who
has the same home as you.
[_______________________________]
(b) Any trust or estate in which you or any person specified in
subparagraph (a) above collectively own ten percent (10%) or
more of the total beneficial interest or of which any such
person serves as trustee, executor or in any similar capacity.
[_______________________________]
(c) Any corporation or other organization in which you or any
person specified in subparagraph (a) are the beneficial owners
collectively of ten percent (10%) or more of any class of
equity securities of ten percent (10%) or more of the total
equity interest.
[_______________________________]
6. Are you or any of the persons or entities described in Question 5 above
an "affiliate" of the issuer of the Securities -- i.e., are you or any
such person directly, or indirectly through one or more intermediaries,
controlled by, in control of or under common control with such issuer?
If yes, please give all details.
[_______________________________]
7. Are you aware of any state or federal securities law which would
prevent the Agent from legally selling the Securities?
[_______________________________]
Part II
<PAGE>
8. With respect to the Securities, is the issuer subject to the reporting
requirements of either Section 13 or Section 15(d) of the Securities
Exchange Act of 1934, and, is the issuer current with respect to all
required filings thereunder, including its most recent annual report on
Form 10-K?
[_______________________________]
9. If you acquired the Securities with the proceeds of any loan, was such
loan on a full or partial recourse basis? If yes, answer the following
questions:
(a) On what date did you fully pay for the Securities? Describe
any type of deferred payment arrangement under which any of
the Securities were purchased and describe any contingencies
regarding the issuance of the Securities.
[_______________________________]
(b) If any of the Securities were obtained through conversion
privileges with respect to other securities of that issuer or
through stock dividends, splits or recapitalizations, describe
the circumstances surrounding such acquisition and the
acquisition of the convertible securities or securities in
respect of which the stock dividend, split or recapitalization
occurred.
[_______________________________]
<PAGE>
10. Have you or any of the persons or entities set forth in Question 5
above sold securities of the same class or any securities convertible
into securities within the last three (3) months of the same class as
the Securities pursuant to Rule 144? If so, provide copies of Form 144.
[_______________________________]
11. In the last three months, have you or any of the persons or entities
set forth in Question 5 above, sold any securities of the same class as
the Securities?
[_______________________________]
In addition to the foregoing warranties and representations,
the undersigned hereby acknowledges that the undersigned understands that the
Agent may rely upon the information given in these questions in realizing upon
and selling the Securities.
IN WITNESS WHEREOF, this instrument has been duly executed by
the undersigned this [_______] day of [____________], 2000.
DARWIN DEASON
By:_________________________
Name:
Title:
<PAGE>
STATE OF )
) SS.
COUNTY OF )
On this [_______] day of [_______________], in the year 2000
before me, the undersigned, a Notary Public in and for said State, personally
appeared Darwin Deason, known to me to be the person whose name is subscribed to
the within instrument, and acknowledged that he executed the same.
WITNESS my hand and official seal.
----------------------------------
Notary Public
