EXHIBIT 10.15
EXHIBIT "C"
TO
CREDIT AGREEMENT
Form of Security Agreement
--------------------------
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.
"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
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.
"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.
"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.
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;
(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;
(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.
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
(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.
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
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
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.
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
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
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
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.
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
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.
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.
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
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;
(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
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.
(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.
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
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.
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.
(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.
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
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.
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
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.
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.
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
-------------------------
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
-------------------------
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
-------------------------
ANASAZI TRAVEL RESOURCES, INC.
By: /s/ JOHN F. DAVIS, III
-------------------------
Name: John F. Davis, III
-------------------------
Title: President
-------------------------
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
SCHEDULE 8
BUSINESS LOCATIONS
SCHEDULE 9
TRADE NAMES