PLEDGE AND SECURITY AGREEMENT
ANALYTICAL SURVEYS, INC.
THIS PLEDGE AND SECURITY AGREEMENT, dated as of June 3, 1998, is by
ANALYTICAL SURVEYS, INC., a Colorado corporation ("Pledgor") to BANK ONE,
COLORADO, N.A., ("Agent") for the ratable benefit of the Banks under that
certain Credit Agreement dated as of June 3, 1998, by and among Pledgor (as
Borrower thereunder), Agent, and the Banks, with such Credit Agreement, as
hereafter amended, modified or extended by the parties thereto referred to as
the "Credit Agreement".
RECITALS
A. The Banks are willing to extend credit facilities to Pledgor subject
to the terms and conditions of the Credit Agreement. One of the terms of the
Credit Agreement is the requirement for execution and delivery of this Pledge
Agreement by Pledgor.
B. In order to induce the Banks to enter into the Credit Agreement,
Pledgor is willing to enter into this Pledge Agreement to secure the due and
punctual performance of the obligations of Pledgor under the Credit Agreement.
AGREEMENT
NOW, THEREFORE, the parties hereto agree as follows:
1. DEFINED TERMS. (a) As used herein, the following terms shall have
the following meanings:
"PLEDGE AGREEMENT" shall mean this Pledge and Security Agreement, as
the same may be further amended, supplemented or otherwise modified from
time to time.
"PLEDGED COLLATERAL" shall mean the Pledged Stock and all Proceeds.
"PLEDGED STOCK" shall mean the shares of capital stock or limited
liability company membership interests of each Subsidiary Issuer listed in
Schedule I hereto, in each case together with all stock certificates,
options, warrants or rights of any nature whatsoever that may be issued or
granted by any Subsidiary Issuer to the Pledgor in respect of the Pledged
Stock while this Pledge Agreement is in effect.
"PROCEEDS" shall have the meaning given thereto by C.R.S. 4-9-306.
"SUBSIDIARY ISSUER" shall mean the company listed on SCHEDULE 1
hereto, which is a wholly-owned Subsidiary of Pledgor.
(b) Unless otherwise defined herein, the capitalized terms used
herein which are defined in, or by reference in, the Credit Agreement shall
have the meanings specified therein.
(c) The words "hereof", "herein" and "hereunder" and words of
similar import shall refer to this Pledge Agreement as a whole and not to any
particular provision of this Pledge Agreement, and section, subsection,
exhibit and schedule references are to this Pledge Agreement unless otherwise
specified.
2. PLEDGE AND GRANT OF SECURITY INTEREST. For value received and to
induce the Banks to make the Loans and otherwise to extend credit to
Borrower, Pledgor, for the ratable benefit of the Banks, hereby pledges,
charges, assigns, transfers and delivers, by way of a first lien, security
interest and assignment, to Agent, and grants a security interest to Agent
in, all of its right, title and interest in and to the Pledged Collateral as
security for all present and future obligations and liabilities of all kinds
of Pledgor to the Banks under the Loan Instruments or hereunder, whether
incurred by Pledgor as maker, endorser, drawer, acceptor, guarantor,
accommodation party or otherwise, and whether due or to become due, secured
or unsecured, absolute or contingent, joint or several, and howsoever or
whensoever incurred by Pledgor or acquired by any Bank (collectively referred
to as the "Obligations").
3. DELIVERY; STOCK POWERS; ENDORSEMENTS. All certificates or
instruments representing or evidencing the Pledged Stock pledged pursuant to
SECTION 2 hereof have previously been delivered or are being delivered to and
held by Agent concurrently with the execution of this Pledge Agreement and
are in suitable form for transfer by delivery, endorsed in blank or
accompanied by duly executed undated instruments of transfer or assignments
in blank, having attached thereto or to such certificates all requisite
federal, state or provincial stock transfer tax stamps, all in form and
substance satisfactory to Agent.
4. WARRANTIES, COVENANTS AND AGREEMENTS OF PLEDGOR.
Pledgor warrants, covenants and agrees that:
(a) the Subsidiary Issuers are all of the directly-owned Subsidiaries of
the Pledgor, and the Pledged Stock, consisting of the shares of the
Subsidiary Issuers listed on SCHEDULE 1 hereto, is all of the issued and
outstanding common stock or other equity interests in the Subsidiary Issuers,
(b) except for the security interests granted hereby,
(i) Pledgor is, and as to Pledged Collateral acquired after the
date hereof, Pledgor shall and will be at the time of acquisition, the
owner and holder of the Pledged Collateral free from any adverse claim,
security interest, encumbrance, lien,
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charge, or other right, title or interest of any person other than Agent
and covenants that at all times the Pledged Collateral will be and remain
free of all such adverse claims, security interests, or other liens or
encumbrances;
(ii) Pledgor has full power and lawful authority to enter into
this Pledge and Security Agreement and to pledge, assign and transfer the
Pledged Collateral to Agent and to grant to Agent a first and prior
security interest therein as herein provided, all of which have been duly
authorized by all necessary corporate action;
(iii) the execution and delivery and the performance hereof are not
in contravention of any charter, article of incorporation or by-law
provision, or of any indenture, agreement or undertaking to which Pledgor
is a party or by which Pledgor or its property is bound;
(iv) this Pledge and Security Agreement constitutes the valid and
legally binding obligation of Pledgor enforceable in accordance with its
terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization, moratorium and other laws of general applicability relating
to or affecting creditors' rights and to general equity principles; and
(v) Pledgor will defend the Pledged Collateral against all claims
and demands of all persons at any time claiming the same or any interest
therein. Any officer, agent or representative acting for or on behalf of
Pledgor in connection with this Pledge and Security Agreement or any aspect
hereof, or entering into or executing this Pledge and Security Agreement on
behalf of Pledgor, has been duly authorized to do so, and is fully
empowered to act for and represent Pledgor in connection with this Pledge
and Security Agreement and all matters related thereto or in connection
therewith.
(c) (i) Pledgor has not heretofore signed any financing statement or
security agreement which covers any of the Pledged Collateral, and no such
financing statement or security agreement is now on file in any public office.
(ii) As long as any amount remains unpaid on any of the
Obligations or under any agreements entered into in connection with the
Obligations, except as expressly permitted by any such agreements,
(A) Pledgor will not enter into or execute any security agreement or
financing statement covering the Pledged Collateral, other than those
security agreements and financing statements in favor of Agent hereunder,
and further (B) there will not be on file in any public office any
financing statement or statements (or any documents or papers filed as
such) covering the Pledged Collateral, other than financing statements in
favor of Agent hereunder, unless in any case the prior written consent of
Agent shall have been obtained.
(iii) At the request of Agent, Pledgor will join Agent in
executing such documents as Agent may determine from time to time to be
necessary or desirable under provisions of any applicable laws in effect
where the Pledged Collateral is
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located or where Pledgor conducts business; without limiting the
generality of the foregoing, Pledgor agrees to join Agent, at Agent's
request, in executing one or more financing statements or other
instruments in form satisfactory to Agent, and Pledgor will pay the
costs of filing or recording the same, or of filing or recording this
Pledge Agreement, in all public offices at any time and from time to
time whenever filing or recording of any such financing statement or of
this Pledge Agreement is deemed by Agent to be necessary or desirable.
In connection with the foregoing, it is agreed and understood between
the parties hereto (and Agent is hereby authorized to carry out and
implement this agreement and understandings, and Pledgor hereby agrees
to pay the costs thereof) that Agent may, at any time or times, file as
a financing statement any counterpart, copy or reproduction of this
Pledge Agreement.
(d) In the event that Pledgor receives any promissory notes or
evidences of indebtedness of any Subsidiary Issuer, Pledgor shall hold the
same in trust as property of the Banks and forthwith assign, pledge and
deliver the same to Agent for the ratable benefit of the Banks.
5. RIGHTS OF AGENT AND PLEDGOR RELATED TO PLEDGED COLLATERAL.
Agent may from time to time following the occurrence of an Event of
Default, as defined in SECTION 7 hereof:
(a) Transfer any of the Pledged Collateral into the name of Agent or
its nominee.
(b) Notify parties obligated on any of the Pledged Collateral to make
payment to Agent of any amounts due or to become due thereunder.
(c) Enforce collection of any of the Pledged Collateral by suit or
otherwise; surrender, release or exchange all or any part thereof, or
compromise or extend or renew for any period (whether or not longer than the
original period) any obligation of any nature of any party with respect
thereto; and exercise all other rights of Pledgor in any of the Pledged
Collateral, except as hereinafter provided with respect to income from or
interest on the Pledged Collateral and except that, prior to an Event of
Default, Pledgor may exercise its voting and consensual rights with respect
to any Pledged Collateral constituting voting securities.
(d) Take possession or control of any proceeds of the Pledged
Collateral.
Until the occurrence of an Event of Default, Pledgor shall have the
right to receive all income from or interest on the Pledged Collateral, and
if Agent receives any such income or interest prior to the occurrence of an
Event of Default, Agent shall pay the same promptly to Pledgor, except that
in the case of securities or other property distributed by way of a dividend
or otherwise with respect to the Pledged Collateral, such securities or other
property (other than cash) shall be promptly delivered to Agent to be held as
Pledged Stock or other Pledged Collateral hereunder. Upon the occurrence of
an Event of Default, Pledgor will not demand or receive any income from or
interest on the Pledged Collateral, and if Pledgor receives any such income
or interest without any demand by it, the same shall be held by Pledgor in
trust for Agent in the same medium in which received, shall not be commingled
with any assets of Pledgor and shall be delivered to Agent in the
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form received, properly endorsed to permit collection, not later than the
next business day following the day of its receipt. Agent shall promptly
apply the net cash received from such income or interest to payment of any of
the Obligations, provided that Agent shall account for and pay over to
Pledgor any such income or interest remaining after payment in full of the
Obligations then outstanding.
So long as no Event of Default or event which, with the giving of notice
or the lapse of time, or both, would become an Event of Default shall have
occurred and be continuing:
(i) Pledgor shall be entitled to exercise any and all voting and
other consensual rights pertaining to the Pledged Collateral or any part
thereof for any purpose not inconsistent with the terms of this Pledge
Agreement or the Credit Agreement; PROVIDED, HOWEVER, that Pledgor shall
not exercise or refrain from exercising any such right if, in Agent's
judgment, such action would have a material adverse effect on the value of
the Pledged Collateral or any part thereof; and, PROVIDED, FURTHER, that
upon the request of Agent, Pledgor shall give Agent at least five days'
written notice of the manner in which it intends to exercise, or the
reasons for refraining from exercising, any such rights; and
(ii) Agent shall execute and deliver (or cause to be executed and
delivered) to Pledgor all such proxies and other instruments as Pledgor may
reasonably request for the purpose of enabling Pledgor to exercise the
voting and other rights which it is entitled to exercise pursuant to
PARAGRAPH (i) above.
Agent shall never be under any obligation to collect, attempt to
collect, protect or enforce the Pledged Collateral or any security therefor,
which Pledgor agrees and undertakes to do at Pledgor's expense, but Agent may
do so in its discretion at any time after the occurrence of an Event of
Default and at such time Agent shall have the right to take any steps by
judicial process or otherwise as it may deem proper to effect the collection
of all or any portion of the Pledged Collateral or to protect or to enforce
the Pledged Collateral or any security therefor. All reasonable expenses
(including, without limitation, reasonable attorneys' fees and expenses)
incurred or paid by Agent in connection with any such collection or attempt
to collect the Pledged Collateral or actions to protect or enforce the
Pledged Collateral or any security therefor shall be borne by Pledgor or
reimbursed by Pledgor to Agent upon demand. The proceeds received by Agent
as a result of any such actions in collecting or enforcing or protecting the
Pledged Collateral shall be held by Agent without liability for interest
thereon and shall be promptly applied by Agent as Agent may deem appropriate
toward payment of any of the Obligations secured hereby in such order or
manner as Agent may elect.
In the event Agent shall pay any taxes, assessments, interests, costs,
penalties or expenses incident to or in connection with the collection of the
Pledged Collateral or protection or enforcement of the Pledged Collateral or
any security therefor, Pledgor, upon demand of Agent, shall pay to Agent the
full amount thereof with interest at a rate per annum (based on a 360-day
year for the actual number of days involved) from the date expended by Agent
until repaid equal to the sum of three percent (3%) plus the Prime Rate in
effect under and defined by the Credit Agreement. So long as Agent shall be
entitled to any such payment, this Pledge Agreement shall operate as security
therefor as fully and to the same extent as it operates as security for
payment of the other Obligations
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secured hereunder, and for the enforcement of such repayment, Agent shall
have every right and remedy provided hereunder for enforcement of payment of
the Obligations.
6. FURTHER ASSURANCES; AGENT AS AGENT.
Pledgor agrees to take such actions and to execute such stock or bond
powers and such other or different writings as Agent may request (and
irrevocably authorizes Agent to execute such writings as Pledgor's agent and
attorney-in-fact) further to perfect, confirm and assure Agent's security
interest in the Pledged Collateral and to assist Agent's realization thereon
including, without limitation, the right to receive, indorse, and collect all
instruments made payable to Pledgor representing any dividend, interest
payment or other distribution in respect of the Pledged Collateral or any
part thereof except to the extent Pledgor is entitled to receive any cash
dividend pursuant to Section 5.
7. EVENT OF DEFAULT.
The occurrence of any of the following shall constitute an "Event of
Default" hereunder:
(a) Failure of Pledgor to pay any Obligation (including any installment
of principal or interest thereon) when due and payable (after the expiration
of any grace period provided by the applicable Loan Instruments), whether at
maturity, by notice of intention to prepay or otherwise;
(b) Default in the timely performance by Pledgor of any obligation or
covenant contained herein or an Event of Default under the Credit Agreement
or any other Collateral Document to which Pledgor is a party, which default
shall not have been cured during any applicable grace period;
(c) Any representation or warranty made by Pledgor herein or in any
other agreement with or instrument delivered to Agent, or any statement or
representation made in any certificate, report or opinion delivered in
connection herewith or in connection with any such other agreement or
instrument that proves to be false or misleading in any material respect when
made; or
(d) The insolvency of Pledgor, the admission by Pledgor of its
inability to pay its debts as they become due, the commencement of any case
by or against Pledgor under any bankruptcy or insolvency law (and, in the
event such case is not instituted by Pledgor, it shall remain undismissed or
unstayed for a period of 45 days or any of the actions sought in such
proceeding shall occur), or the making by Pledgor of any assignment for the
benefit of creditors.
8. RIGHTS AND REMEDIES OF AGENT UPON DEFAULT.
If an Event of Default shall have occurred:
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(a) Agent shall have and may exercise with reference to the Pledged
Collateral and the Obligations any or all of the rights and remedies of a
secured party under the Uniform Commercial Code ("UCC"), as applicable, and
as otherwise granted herein or under any other applicable law or under any
other agreement now or hereafter in effect executed by Pledgor, including,
without limitation, the right and power to sell, at public or private sale or
sales, or otherwise dispose of, or otherwise utilize the Pledged Collateral
and any part or parts thereof in any manner authorized or permitted under
said UCC after default by a debtor, and to apply the proceeds thereof toward
payment of any costs and expenses and attorneys' fees and expenses thereby
incurred by Agent and toward payment of the Obligations in such order or
manner as Agent may elect. Specifically and without limiting the foregoing,
Agent shall have the right to take possession of all or any part of the
Pledged Collateral or any security thereof and of all books, records, papers
and documents of Pledgor or in Pledgor's possession or control relating to
the Pledged Collateral which are not already in Agent's possession, and for
such purpose may enter upon any premises upon which any of the Pledged
Collateral or any security therefor or any of said books, records, papers and
documents are situated and remove the same therefrom without any liability
for trespass or damages thereby occasioned. To the extent permitted by law,
Pledgor expressly waives any notice of sale or other disposition of the
Pledged Collateral and all other rights or remedies of Pledgor or formalities
prescribed by law relative to sale or disposition of the Pledged Collateral
or exercise of any other right or remedy of Agent existing after default
hereunder; and to the extent any such notice is required and cannot be
waived, Pledgor agrees that if such notice is given in the manner provided in
SECTION 14 hereof at least ten days before the time of the sale or
disposition, such notice shall be deemed reasonable and shall fully satisfy
any requirement for giving of said notice. Agent shall not be obligated to
make any sale of Pledged Collateral regardless of notice of sale having been
given. Agent may adjourn any public or private sale from time to time by
announcement at the time and place fixed thereof, and such sale may, without
further notice, be made at the time and place to which it was so adjourned.
(b) Upon notice by Agent to Pledgor, Agent or its nominee or nominees
shall have the sole and exclusive right to exercise all voting and consensual
powers pertaining to the Pledged Collateral or any part thereof and may
exercise such powers in such manner as Agent may elect.
(c) All dividends, payments of interest and other distributions of
every character made upon or in respect of the Pledged Collateral or any part
thereof shall be deemed to be Pledged Collateral and shall be paid directly
to and shall be held by Agent as additional Pledged Collateral pledged under
and subject to this Pledge Agreement.
(d) All rights to marshaling of assets of Pledgor, including any such
right with respect to the Pledged Collateral, are hereby waived by Pledgor.
(e) All recitals in any instrument of assignment or any other
instrument executed by Agent incident to sale, lease, transfer, assignment or
other disposition, lease or utilization of the Pledged Collateral or any part
thereof hereunder shall be full proof of the matters stated therein and no
other proof shall be requisite to establish full legal propriety of the sale
or other action taken by Agent or of any fact, condition or thing incident
thereto, and all requisites of such sale or other action or of any fact,
condition or thing incident thereto shall be presumed conclusively to have
been performed or to have occurred.
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9. SPECIAL PROVISIONS FOR PLEDGED STOCK.
Pledgor hereby acknowledges that the sale by Agent of any of the Pledged
Stock pursuant to the terms hereof in compliance with applicable federal or
state securities laws (as now in effect or as hereafter amended, or any
similar statute hereafter adopted with similar purpose or effect, the
"Securities Laws") may require strict limitations as to the manner in which
Agent or any subsequent transferee of the Pledged Stock may dispose of such
securities. Pledgor understands that in order to protect Agent's interest it
may be necessary to sell the Pledged Stock at a price less than the maximum
price attainable if a sale were delayed or were made in another manner, such
as a public offering requested under the Securities Laws. Pledgor has no
objection to a sale in such a manner.
10. APPLICATION OF PROCEEDS BY AGENT.
In the event Agent sells or otherwise disposes of the Pledged Collateral
in the course of exercising the remedies provided for in SECTION 8 hereof,
any amounts held, realized or received by Agent pursuant to the provisions
hereof, including the proceeds of the sale of any of the Pledged Collateral
or any part thereof, shall be applied by Agent first toward the payment of
any costs and expenses incurred by Agent in enforcing this Pledge Agreement,
in realizing on or protecting any Pledged Collateral and in enforcing or
collecting any Obligations or any guaranty thereof, including, without
limitation, the reasonable, actual attorneys' fees and expenses incurred by
Agent (all of which costs and expenses are secured by the Pledged
Collateral), all of which costs and expenses Pledgor agrees to pay, and then
as provided in the Credit Agreement. Any amounts and any Pledged Collateral
remaining after such application and after payment to the Banks of all of the
Obligations in full shall be paid or delivered to Pledgor, its successor or
assigns, or as a court of competent jurisdiction may direct.
Agent shall be deemed to have exercised reasonable care in the custody
and preservation of the Pledged Collateral in its possession if the Pledged
Collateral is accorded treatment substantially equal to that which Agent
accords its own property, it being understood that Agent shall not have any
responsibility for (x) ascertaining or taking action with respect to calls,
conversions, exchanges, maturities, tenders or other matters relative to any
Pledged Collateral, whether or not Agent has or is deemed to have knowledge
of such matters or (y) taking any necessary steps to preserve rights against
any parties with respect to any Pledged Collateral.
11. ABSOLUTE INTEREST.
(a) So long as any Obligations are unsatisfied, all rights of Agent
hereunder, and all obligations of Pledgor hereunder, shall be absolute and
unconditional irrespective of (i) any lack of validity or enforceability of
any provision of the Credit Agreement, any agreement with respect to the
Obligations or any other agreement or instrument relating to any of the
foregoing, (ii) any change in the time, manner or place of payment of, or in
any other term of, all or any of the Obligations, or any other amendment or
waiver of or any consent to any departure from the Credit Agreement or any
other agreement or instrument, (iii) any exchange, release or non-perfection
of any Pledged Collateral, or any release or amendment or waiver of or any
consent to or departure from any guarantee, for all or any of the Obligations
or (iv) any other circumstance which might constitute
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a defense available to, or a discharge of, Pledgor in respect of the
Obligations or this Pledge Agreement.
(b) This Pledge Agreement shall not be construed as relieving Pledgor
from full liability on the Obligations and any and all future and other
indebtedness secured hereby and for any deficiency thereon.
(c) Agent is hereby subrogated to all of Pledgor's interests, rights
and remedies in respect to the Pledged Collateral and all security now or
hereafter existing with respect thereto and all guaranties and endorsements
thereof and with respect thereto.
12. TERMINATION.
This Pledge Agreement and the security interests created hereunder shall
terminate when all the Obligations have been indefeasibly paid in full and
when Agent has no further obligation to extend credit under the Credit
Agreement, at which time Agent shall execute and deliver to Pledgor all
documents which Pledgor shall reasonably request to evidence termination of
such security interest and shall return physical possession of any Pledged
Collateral then held by Agent to Pledgor; PROVIDED, HOWEVER, that all
indemnities of Pledgor contained in this Pledge Agreement shall survive, and
remain in full force and effect regardless of the termination of the security
interest of this Pledge Agreement.
13. ADDITIONAL INFORMATION.
Pledgor agrees to furnish Agent from time to time such additional
information and copies of such documents relating to this Pledge Agreement,
the Pledged Collateral, the Obligations and Pledgor's financial condition to
the extent and at such times as provided under Section 5.1(h) of the Credit
Agreement as Agent may reasonably request.
14. NOTICES.
Any communication, notice or demand to be given hereunder shall be in
writing (including telex and facsimile communication) and mailed, sent
by facsimile, or delivered,
if to Pledgor,
Analytical Surveys, Inc.
1935 Jamboree Drive
Colorado Springs, Colorado 80902
Attention: Scott C. Benger
Senior Vice President-Finance,
Secretary and Treasurer
Facsimile: (719) 528-5093
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and if to Agent,
Bank One, Colorado, N.A.
30 East Pikes Peak Avenue
Colorado Springs, Colorado 80903
Attention: Shaun P. McCarthy
Vice President
Facsimile: (719) 471-5213
as to each party, at such other address or numbers as shall be designated by
either party hereto to the other party in a written notice. All such notices
and communications shall be effective (a) when received, if mailed by
registered or certified mail or physically delivered, (b) five (5) days after
being sent by mail, if sent by ordinary mail, and (c) upon confirmation of
transmission, if sent by telex or telecopier, addressed in each case as
aforesaid.
15. INDEMNITY AND EXPENSES.
The Pledgor agrees to indemnify Agent from and against any and all
claims, losses and liabilities growing out of or resulting from this Pledge
Agreement (including, without limitation, enforcement of this Pledge
Agreement and other Collateral Documents, and all claims and demands of all
persons at any time claiming the Pledged Collateral or any interest therein),
except claims, losses or liabilities resulting from Agent's gross negligence
or willful misconduct. Pledgor agrees to pay on demand all out-of-pocket
expenses of the Agent (including the reasonable fees and expenses of Agent's
attorneys, experts and agents) in any way relating to the enforcement or
protection of the rights of the Banks hereunder and further agrees that the
Pledged Collateral secures such payment.
16. NO WAIVER; CUMULATIVE RIGHTS.
No failure on the part of Agent to exercise, and no delay in exercising,
any right, remedy or power hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise by Agent of any right, remedy or power
hereunder preclude any other or future exercise of any other right, remedy or
power. Each and every right, remedy and power hereby granted to Agent or
allowed it by law or other agreement shall be cumulative and not exclusive of
any other and may be exercised by Agent from time to time.
17. GOVERNING LAW; CONSENT TO JURISDICTION.
THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER,
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE
OF COLORADO, WITHOUT, HOWEVER, GIVING EFFECT TO THE CONFLICTS OF LAW
PROVISIONS THEREOF. PLEDGOR, FOR ITSELF AND ITS SUCCESSORS AND ASSIGNS,
HEREBY IRREVOCABLY (a) AGREES THAT ANY LEGAL OR EQUITABLE ACTION, SUIT OR
PROCEEDING AGAINST PLEDGOR ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE
TRANSACTIONS CONTEMPLATED HEREBY OR THE SUBJECT MATTER HEREOF MAY BE
INSTITUTED IN ANY COURT OF
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APPROPRIATE JURISDICTION IN THE CITY AND COUNTY OF DENVER, COLORADO; (b)
WAIVES ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF SUCH
ACTION, SUIT OR PROCEEDING OR ANY CLAIM OF FORUM NON CONVENIENS; (c) SUBMITS
ITSELF TO THE NON-EXCLUSIVE JURISDICTION OF ANY SUCH COURT, FOR THE PURPOSES
OF SUCH ACTION, SUIT OR PROCEEDING; (d) WAIVES ANY IMMUNITY FROM JURISDICTION
TO WHICH IT MIGHT OTHERWISE BE ENTITLED IN ANY SUCH ACTION, SUIT OR
PROCEEDING WHICH MAY BE INSTITUTED IN ANY SUCH COURT, AND WAIVES ANY IMMUNITY
FROM THE MAINTAINING OF AN ACTION AGAINST IT TO ENFORCE IN ANY SUCH COURT,
ANY JUDGMENT FOR MONEY OBTAINED IN SUCH ACTION, SUIT OR PROCEEDING AND, TO
THE EXTENT PERMITTED BY APPLICABLE LAW, ANY IMMUNITY FROM EXECUTION; AND
(e) AGREES THAT ANY LEGAL OR EQUITABLE ACTION, SUIT OR PROCEEDING BROUGHT BY
PLEDGOR AGAINST AGENT OR OTHER LENDING PARTY ARISING OUT OF OR RELATING TO
THIS AGREEMENT, THE TRANSACTIONS CONTEMPLATED HEREBY OR THE SUBJECT MATTER
HEREOF SHALL BE INSTITUTED IN SUCH COURTS.
18. JURY TRIAL.
PLEDGOR HEREBY KNOWINGLY, VOLUNTARILY, INTENTIONALLY, IRREVOCABLY AND
UNCONDITIONALLY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY LEGAL OR EQUITABLE
ACTION, SUIT OR PROCEEDING ARISING OUT OF OR RELATING TO THIS PLEDGE
AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREIN OR THE SUBJECT
MATTER HEREOF. THE PROVISIONS OF THIS SECTION 18 ARE A MATERIAL INDUCEMENT
FOR AGENT AND THE BANKS TO ENTER INTO THIS PLEDGE AGREEMENT AND THE CREDIT
AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREIN AND THEREIN. PLEDGOR
HEREBY ACKNOWLEDGES THAT IT HAS REVIEWED THE PROVISIONS OF THIS SECTION 18
WITH ITS INDEPENDENT COUNSEL.
19. INCONSISTENCY OF AGREEMENTS.
In case of any inconsistency between this Pledge Agreement and the
Credit Agreement, the provisions of the Credit Agreement shall be controlling
except with respect to SECTIONS 1 and 2 hereof as to which the terms of this
Pledge Agreement shall be controlling.
20. EXECUTION IN COUNTERPARTS.
This Pledge Agreement may be executed in any number of counterparts,
each of which shall be an original, but such counterparts shall together
constitute one and the same agreement.
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IN WITNESS WHEREOF, the parties have caused this Pledge Agreement to be
duly executed as of the date first above written.
ANALYTICAL SURVEYS, INC.
By: ________________________________
Scott C. Benger
Senior Vice President, Treasurer
and Secretary
BANK ONE, COLORADO, N.A.,
as Agent for the Banks
By: ________________________________
Shaun P. McCarthy
Vice President
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SCHEDULE I
Pledge and Security Agreement
ANALYTICAL SURVEYS, INC.
DESCRIPTION OF PLEDGED STOCK
OF SUBSIDIARY ISSUERS
---------------------
Stock % Shares
ISSUER Class of Stock Certificate No. of Shares Outstanding
No. by Pledgor
MSE Common Stock, 100,000 100
Corporation No par value
ASI Landmark, Common Stock 1,000 100
Inc. No par value
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ACKNOWLEDGMENT AND CONSENT
The undersigned, MSE CORPORATION (the "Issuer"), hereby (i)
acknowledges receipt of the attached Pledge and Security Agreement, dated as
of June 3, 1998 (the "Pledge Agreement") made by ANALYTICAL SURVEYS, INC.
("Pledgor") with and in favor of BANK ONE, COLORADO, N.A., as Agent (the
"Agent") for the Banks under that certain Credit Agreement (as defined in the
Pledge Agreement), (ii) consents to the pledge pursuant to the Pledge
Agreement of the shares of stock of the Issuer owned by Pledgor and listed in
Schedule I thereto (the "Pledged Stock"), (iii) agrees to notify the Agent
promptly in writing of the breach of any warranty or covenant or the
occurrence of any of the events described in SECTIONS 4 or 7 of the Pledge
Agreement and (iv) agrees that, if an Event of Default has occurred, (a) the
Agent shall have the right to receive any and all cash dividends paid in
respect of the Pledged Stock and make application thereof to the Obligations
in such order as provided in the Credit Agreement, and (b) all shares of the
Pledged Stock shall be registered in the name of the Agent or its nominee and
the Agent or its nominee may thereafter exercise all voting, corporate and
other rights pertaining to such shares of the Pledged Stock at any meeting of
shareholders or otherwise, and any and all rights of conversion, exchange,
subscription or any other rights, privileges or options existing at such time
and pertaining to such shares of the Pledged Stock as if it were the absolute
owner thereof (including, without limitation, the right to exchange at its
discretion any and all of the Pledged Stock upon the merger, consolidation,
reorganization, recapitalization or other fundamental change in the corporate
structure of the Issuer, or upon the exercise by the Pledgor or the Agent of
any right, privilege or option pertaining to such share of the Pledged Stock,
and in connection therewith, the right to deposit and deliver any and all of
the Pledged Stock with any committee, depositary, transfer agent, registrar
or other designated agency upon such terms and conditions (as it may
determine to be appropriate), all without liability to the Agent except to
account for property actually received by it, but the Agent shall have no
duty to the Pledgor to exercise any such right, privilege or option and shall
not be responsible for any failure to do so or delay in so doing).
Capitalized terms used herein but not defined have the meanings
specified in the Pledge Agreement.
This Acknowledgment and Consent when executed by the Issuer and
accepted by the Agent by executing the acceptance at the foot hereof, shall be
deemed to be a contract under the laws of Colorado and for all purposes, shall
be construed in accordance with the laws of said jurisdiction.
MSE CORPORATION.
By:____________________________________
Scott C. Benger
Vice President
ACCEPTED:
BANK ONE, COLORADO, N.A.,
as Agent for the Banks
By:_______________________
Shaun P. McCarthy
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Vice President
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ACKNOWLEDGMENT AND CONSENT
The undersigned, ASI LANDMARK, INC. (the "Issuer"), hereby
(i) acknowledges receipt of the attached Pledge and Security Agreement, dated as
of June 3, 1998 (the "Pledge Agreement") made by ANALYTICAL SURVEYS, INC.
("Pledgor") with and in favor of BANK ONE, COLORADO, N.A., as Agent (the
"Agent") for the Banks under that certain Credit Agreement (as defined in the
Pledge Agreement), (ii) consents to the pledge pursuant to the Pledge Agreement
of the shares of stock of the Issuer owned by Pledgor and listed in Schedule I
thereto (the "Pledged Stock"), (iii) agrees to notify the Agent promptly in
writing of the breach of any warranty or covenant or the occurrence of any of
the events described in SECTIONS 4 or 7 of the Pledge Agreement and (iv) agrees
that, if an Event of Default has occurred, (a) the Agent shall have the right to
receive any and all cash dividends paid in respect of the Pledged Stock and make
application thereof to the Obligations in such order as provided in the Credit
Agreement, and (b) all shares of the Pledged Stock shall be registered in the
name of the Agent or its nominee and the Agent or its nominee may thereafter
exercise all voting, corporate and other rights pertaining to such shares of the
Pledged Stock at any meeting of shareholders or otherwise, and any and all
rights of conversion, exchange, subscription or any other rights, privileges or
options existing at such time and pertaining to such shares of the Pledged Stock
as if it were the absolute owner thereof (including, without limitation, the
right to exchange at its discretion any and all of the Pledged Stock upon the
merger, consolidation, reorganization, recapitalization or other fundamental
change in the corporate structure of the Issuer, or upon the exercise by the
Pledgor or the Agent of any right, privilege or option pertaining to such share
of the Pledged Stock, and in connection therewith, the right to deposit and
deliver any and all of the Pledged Stock with any committee, depositary,
transfer agent, registrar or other designated agency upon such terms and
conditions (as it may determine to be appropriate), all without liability to the
Agent except to account for property actually received by it, but the Agent
shall have no duty to the Pledgor to exercise any such right, privilege or
option and shall not be responsible for any failure to do so or delay in so
doing).
Capitalized terms used herein but not defined have the meanings
specified in the Pledge Agreement.
This Acknowledgment and Consent when executed by the Issuer and
accepted by the Agent by executing the acceptance at the foot hereof, shall be
deemed to be a contract under the laws of Colorado and for all purposes, shall
be construed in accordance with the laws of said jurisdiction.
ASI LANDMARK, INC.
By:_________________________________
Scott C. Benger
President
ACCEPTED:
BANK ONE, COLORADO, N.A.,
as Agent for the Banks
By:_______________________________
Shaun P. McCarthy
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Vice President
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