PLEDGE AND SECURITY AGREEMENT
PLEDGE AND SECURITY AGREEMENT, dated as of December 31, 1997 (as
amended from time to time, the "AGREEMENT"), by and between Informix Software,
Inc., a Delaware corporation (the "DEBTOR") and BankBoston, N.A., a national
banking association ("BANKBOSTON"), acting through its agency, as collateral
agent and representative for the institutions that now or in the future are
parties to the Credit Agreement described below (the "LENDERS") and BankBoston
in its capacity as L/C Issuer (in such capacity, the "L/C Issuer") (in such
agency capacity, BankBoston or any successor in such capacity is referred to
herein as the "AGENT"). The Lenders, the L/C Issuer and the Agent are
collectively referred to herein as the "SECURED PARTIES".
R E C I T A L S
A. Pursuant to a Senior Secured Credit Agreement dated December 31,
1997 (as amended from time to time, the "CREDIT AGREEMENT") by and among the
Debtor, Canadian Imperial Bank of Commerce, as Syndication Agent, and the
Secured Parties, the Lenders and the L/C Issuer have agreed to make credit
facilities in an aggregate amount of $75,000,000 available to the Debtor,
subject to the terms and conditions set forth therein. It is a condition to the
extension of such credit facilities that the collateral described herein, be
pledged to the Secured Parties as set forth herein.
A G R E E M E N T
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE 1.
DEFINITIONS AND RELATED MATTERS
1.1. DEFINITIONS. Terms with initial capital letters not otherwise
defined herein (including "ACCOUNTS RECEIVABLE," "ASSET DISPOSITION," "DEFAULT,"
"CONTRACTUAL OBLIGATION," "DEBT," "EVENT OF DEFAULT," "LOAN DOCUMENTS" and
"LIEN") have the respective meanings set forth in the Credit Agreement. In
addition, the following terms with initial capital letters have the following
meanings:
"ACCELERATION" is defined in Section 5.2.
"ACCOUNT DEBTOR" means any Person who is or who may become obligated
to the Debtor on any Receivable.
"AGENT" is defined in the preamble.
"AGREEMENT" is defined in the preamble.
"CHARGES" means all federal, state, county, city, municipal or other
Taxes, levies, assessments or charges that, if not paid when due, may result in
a Lien of any Governmental Authority against Collateral.
"CHATTEL PAPER" is defined in Section 2.1.7.
"COLLATERAL" is defined in Section 2.1.
"CREDIT AGREEMENT" is defined in the Recitals.
"DEBTOR" is defined in the preamble.
"DOCUMENTS" is defined in Section 2.1.12.
"EQUIPMENT" is defined in Section 2.1.10.
"EVENT OF DEFAULT" is defined in Section 5.1.
"FIXTURES" is defined in Section 2.1.11.
"GOVERNING AGREEMENT" is defined in Section 2.1.3.
"INTEREST ISSUER" is defined in Section 2.1.3.
"INVENTORY" is defined in Section 2.1.9.
"LENDERS" is defined in the preamble.
"NOTES RECEIVABLE" is defined in Section 2.1.6.
"OFFICERS' CERTIFICATE" means, with respect to the Debtor, a
certificate signed by the Chief Executive Officer, the President or any Vice
President and by the Chief Financial Officer or the Treasurer or any Assistant
Treasurer, of the Debtor and delivered to the Agent.
"PERMITTED SALE" is defined in Section 4.7.
"PLEDGED COLLATERAL" is defined in Section 4.8.
"PLEDGED DEBT" means the indebtedness described on Schedule B-2
(together with all notes, security agreements, pledge agreements, mortgage,
deeds of trust and other security and loan documents from time to time
evidencing or securing such indebtedness, whether or not described on such
Schedule, and all liens, rights, remedies, powers, and privileges of the Debtor
relating thereto.
"PLEDGED INTERESTS" means the partnership, limited liability company,
and limited liability partnership interests that are Material to the Debtor and
its Subsidiaries, taken as a whole, each of which is described on Schedule B-3.
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"PLEDGED STOCK" means the shares of capital stock described on
Schedule B-1.
"PROCEEDS" is defined in Section 2.1.17.
"RECEIVABLES" means Accounts Receivable, Notes Receivable, Chattel
Paper and other rights to the payment of money.
"REQUIRED SECURED PARTIES" means (i) with respect to any vote or
action taken with respect to any default or waiver of any of the Borrower's
covenants or other obligations contained in Sections 6.2 through 6.7 (but not
including Section 6.4.1), 6.11, 6.15, 7.1.2, and 7.1.9 through 7.1.12 of the
Credit Agreement during any period in which the Level I Pricing contained in
Schedule 1.1.E of the Credit Agreement shall be in effect, Lenders having 100%
of the aggregate amount of the Commitments or (ii) with respect to Section 7.2.2
of the Credit Agreement or any other matter, any three or more Lenders having at
least 66-2/3% of the aggregate amount of the Commitments or, if the Revolving
Commitments have terminated, any three or more Lenders holding at least 66-2/3%
of the sum of (a) the aggregate unpaid principal amount of the Revolving Loans
PLUS (b) the aggregate amount of all Letter of Credit Liability.
"SECURED OBLIGATIONS" is defined in Section 2.2.
"SECURED PARTIES" is defined in the preamble.
"SECURITIES" is defined in Section 2.1.1.
"SECURITY INTEREST" is defined in Section 2.1.
"SUPPLEMENTAL DOCUMENTATION" means financing statements, continuation
statements, warehouse receipts, bills of lading, Notices of Security Interest in
Patents and Trademarks, Notices of Security Interest in Copyrights, consents,
acknowledgments, assignments, assignment of accounts, patents, trademarks or
copyrights, schedules of Collateral, mortgages and other instruments or
documents necessary or requested by the Agent (a) to perfect and maintain
perfected the Security Interest on any Collateral, or (b) so that the Agent
receives all interest, dividends and distributions from time to time paid with
respect to, and all other Proceeds of, all Collateral the Agent is entitled to
receive hereunder.
"UCC" means the Uniform Commercial Code (as amended from time to time)
of the State of California.
1.2. RELATED MATTERS.
1.2.1. TERMS USED IN THE UCC. Unless the context clearly otherwise
requires, all lower-case terms used and not otherwise defined herein that are
used or defined in Article 9 or 8 (or any equivalent subpart) of the UCC have
the same meanings herein.
1.2.2. GOVERNING LAW. Except to the extent otherwise required by
Applicable Law, the UCC shall govern the attachment, perfection, priority and
enforcement of the Security Interest and all other matters to which the UCC
applies pursuant to the terms thereof. This
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Agreement shall be governed by, and construed in accordance with, the laws of
the State of California (other than choice of law rules that would require the
application of the laws of any other jurisdiction).
1.2.3. HEADINGS. The Article and Section headings used in this
Agreement are for convenience of reference only and shall not affect the
construction hereof.
1.2.4. SEVERABILITY. If any provision of this Agreement or any Lien
or other right hereunder shall be held to be invalid, illegal or unenforceable
under Applicable Law in any jurisdiction, such provision, Lien or other right
shall be ineffective only to the extent of such invalidity, illegality or
unenforceability, which shall not affect any other provisions herein or any
other Lien or right granted hereby or the validity, legality or enforceability
of such provision, Lien or right in any other jurisdiction.
1.2.5. EXHIBITS, ETC. All of the appendices, exhibits and schedules
attached to this Agreement shall be deemed incorporated herein by reference.
1.2.6. NO PARTY DEEMED DRAFTER. None of the parties to this
Agreement shall be deemed to be the drafter of this Agreement, and this
Agreement shall not be interpreted in favor of or against any party hereto.
1.2.7. TIME OF THE ESSENCE. Time and exactitude in the performance
of each of the covenants, conditions and agreements contained in this Agreement
are hereby declared to be of the essence.
1.2.8. INTERPRETATION, ETC. Section 1.2. of the Credit Agreement
shall govern the interpretation of this Agreement and is hereby incorporated
herein by reference, PROVIDED, HOWEVER, that (a) all references therein to a
"Lender" shall be read as being to any Secured Party, (b) all references therein
as "Required Lenders" shall be read as being to "Required Secured Parties,"
(c) all references therein to "Borrower" shall be read as being to "Debtor," and
(d) all references therein to "Pledge and Security Agreement" shall be read as
being to this Agreement.
ARTICLE 2.
THE SECURITY INTEREST; SECURED OBLIGATIONS
2.1. SECURITY INTEREST. To secure the payment and performance of the
Secured Obligations as and when due, the Debtor hereby conveys, pledges, assigns
and transfers to the Agent, and grants to the Agent, as agent and representative
for the equal and ratable benefit of the Secured Parties, a security interest
(the "SECURITY INTEREST") in, all right, title, claim, estate and interest of
the Debtor in and to all property and interests in property, whether now owned
and existing or hereafter acquired or arising, and wherever located, including
the following (being collectively, the "COLLATERAL"):
2.1.1. Any and all stocks, bonds, general and limited partnership
interests, joint venture interests, limited liability company or limited
liability partnership interests, and other
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securities, subscription rights, options, warrants, puts, calls and other rights
with respect thereto, and investment and brokerage accounts (the "SECURITIES"),
including the Pledged Stock, the Pledged Debt, and the Pledged Interests
(collectively, the "Pledged Collateral") and all certificates and instruments
representing or evidencing the Pledged Collateral, together with all interest
coupons (if any) attached thereto;
2.1.2. Any and all securities issued in respect of partnership,
limited liability company, limited liability partnership, or other interests
issued by any issuer of indebtedness of any Person obligated with respect to any
of the Pledged Collateral, or any successor thereto, that the Debtor acquires or
has the right to acquire from time to time in any manner in substitution for or
in addition to any of the foregoing and any and all certificates and instruments
representing or evidencing such securities interests, together with any and all
interest coupons (if any) attached thereto and any and all notes, security
agreements, pledge agreements, mortgages, deeds of trust and other security and
loan documents from time to time evidencing or securing such indebtedness;
2.1.3. The partnership or operating agreement(s) and other charter
documents of the respective partnerships, limited liability companies or limited
liability partnerships (each an "INTEREST ISSUER") that issued the Pledged
Interests, in each case as amended from time to time (each a "GOVERNING
AGREEMENT") to the extent the grant of a security interest therein is permitted
thereby;
2.1.4. Any and all rights, powers, remedies and privileges of the
Debtor as a general or limited partner or member of any Interest Issuer,
including all rights under the Governing Agreement and Applicable Law (i) to
receive its share of profits, income, capital distributions and surplus from
each Interest Issuer, whether in the form of cash, properties or other assets,
and whether upon a sale or refinancing of any of such Interest Issuer's assets,
in the ordinary course of business, upon dissolution and liquidation or
otherwise, and (ii) to vote the Pledged Interests or manage such Interest
Issuer;
2.1.5. Any and all rights to Accounts Receivable and accounts
receivable from Subsidiaries or Affiliates of the Debtor;
2.1.6. Any and all negotiable instruments, promissory notes,
acceptances, drafts, checks, certificates of deposit and other writings that
evidence a right to the payment of money by any other Person (the "NOTES
RECEIVABLE"), including the writings listed on Schedule 2.1.6. and writings
evidencing rights to payment from Subsidiaries and Affiliates of the Debtor;
2.1.7. Any and all chattel paper, including writings that evidence
both a monetary obligation and a security interest in or lease of specific goods
(the "CHATTEL PAPER");
2.1.8. Any and all rights to payment of money not listed above and
any and all rights, titles, interests, securities, Liens and guaranties
evidencing, securing, guarantying payment of or in any way relating to any
Receivables, including all rights to stoppage in transit, replevin, reclamation
and resale;
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2.1.9. Any and all goods, merchandise and other personal property
that may at any time be held for sale or lease or to be furnished under any
contract of service, be so leased or furnished, or constitute raw materials,
work in process, parts, supplies or materials that are or might be used or
consumed in a business or in connection with the manufacture, packing, shipping,
advertising, selling, leasing or finishing of such goods, merchandise or other
personal property, together with all packing materials, supplies and containers
relating to or used in connection with any of the foregoing (together with all
related property described in clause 2.1.15. below, the "INVENTORY");
2.1.10. Any and all equipment, machinery, machine tools, office
machinery (including computers, typewriters and duplicating machines), motor
vehicles, trailers, rolling stock, airplanes, ships, boats, motors, pumps,
controls, tools, parts, works of art, athletic equipment, furniture, furnishings
and trade fixtures, and any and all supplies, molds, dies, drawings, blueprints,
reports, catalogs and computer programs related to any such goods (together with
all related property described in clause 2.1.15. below, the "EQUIPMENT");
2.1.11. Any and all fixtures, including machinery, equipment or
appliances for generating, storing or distributing air, water, heat,
electricity, light, fuel or refrigeration, for ventilating or sanitary purposes,
for the exclusion of vermin or insects, or for the removal of dust, refuse or
garbage or other purposes, elevators, safes, laundry, kitchen and athletic
equipment, trade fixtures, and telephone, television and other communications
equipment, in each case whether or not permanently affixed to real property
owned by the Debtor, and any and all supplies, molds, dies, drawings,
blueprints, reports, catalogs and computer programs related to such fixtures
(together with all related property described in clause 2.1.15. below, the
"FIXTURES");
2.1.12. Any and all documents, whether or not negotiable, including
bills of lading, warehouse receipts, trust receipts and the like, evidencing
title to Inventory or Equipment (the "DOCUMENTS");
2.1.13. Any and all money and any and all general intangibles and
contract rights (together with any property listed under clause 2.1.8. above,
the "GENERAL INTANGIBLES"), including the following:
2.1.13.1. deposit and other accounts, including demand, time
savings, passbook and like accounts maintained with any bank, savings and loan
association, credit union, brokerage or other institution (including the deposit
accounts listed on Schedule 2.1.13.1.), and any and all money, instruments and
other property from time to time deposited therein or credited thereto, or
received, receivable or otherwise distributed therefrom, in respect thereof or
in exchange therefor, including all interest accruing thereon;
2.1.13.2. insurance policies and all rights and claims therein
or thereunder (including prepaid and unearned premiums), including insurance
against casualty (including by fire or earthquake) or liability (including
against environmental cleanup costs), title insurance, business interruption
insurance and builders risk insurance, whether covering personal or real
property, including the casualty insurance listed on Schedule 2.1.13.2.;
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2.1.13.3. any and all leases of real or personal property,
licensing agreements and other contracts and all guaranties, warranties,
royalties, license fees and rights under such contracts;
2.1.13.4. any and all Governmental Approvals, including permits,
licenses, certificates of use and occupancy (or their equivalents) and zoning
and other approvals, and tax and other refunds, compensation, awards, payments
and relief given or made by any Governmental Authority (including condemnation
awards) to the extent permitted by Applicable Law;
2.1.13.5. deposits, surety and other bonds, choses and things in
action, goodwill, computer programs, computer software (including all source and
object codes, all media of any type or nature on which such source or object
codes are reproduced, copied, stored or maintained), technology processes,
proprietary information, patents, patent applications, copyrights, copyright
applications, trademarks, trademark applications, service marks, trade and other
names, trade secrets and customer lists, including the Patents, Trademarks and
Copyrights listed in Schedule 2.1.13.5.;
2.1.14. Any and all books and records (including ledgers,
correspondence, credit files, computer software, computer storage media and
electronically recorded data) pertaining to the Debtor or any of the foregoing
and all equipment, receptacles, containers and cabinets therefor;
2.1.15. Any and all accessions, appurtenances, components, repairs,
repair parts, spare parts, renewals, improvements, replacements, substitutions
and additions to, of or with respect to any of the foregoing;
2.1.16. Any and all rights, powers, remedies and privileges of the
Debtor under or with respect to any of the foregoing, including all Liens
securing the Pledged Debt; and
2.1.17. Any and all proceeds and products of any of the foregoing,
whether now held and existing or hereafter acquired or arising, including any
and all cash, securities, instruments and other property from time to time paid,
payable or otherwise distributed, rents, issues, income, revenues and profits
of, from or with respect to any of the foregoing or the sale, lease or operation
thereof (collectively, the "PROCEEDS").
"PROCEEDS" shall include (a) any options, warrants, securities or
other property issued or delivered by the issuer of or obligor on any Pledged
Collateral as a stock dividend or distribution in connection with any
reclassification, increase or reduction of capital or issued or delivered in
connection with any merger or other reorganization, (b) any property received
upon the liquidation or dissolution of any issuer of or obligor on any Pledged
Collateral or upon or in respect of any distribution of capital,(c) whatever is
now or hereafter received by the Debtor upon the sale, exchange, collection,
other disposition or operation of any item of Collateral, whether such proceeds
constitute accounts, general intangibles, instruments, securities, investment
property, documents, letters of credit, chattel paper, deposit accounts, money,
goods or other personal property, (d) any items that are now or hereafter
acquired by the Debtor with
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any proceeds or products of Collateral, (e) any amounts now or hereafter payable
under any insurance policy by reason of any loss of or damage to any Collateral
or the business of the Debtor, (f) all rights to payment for the sale of
services or products in connection with the business of Debtor, and (g) the
right to further transfer, including by pledge, mortgage, license, assignment or
sale, any of the foregoing.
2.2. SECURED OBLIGATIONS. The Security Interest shall secure, for
the equal and ratable benefit of the Secured Parties, the due and punctual
payment and performance of any and all present and future obligations and
liabilities of every type or description:
2.2.1. to any Secured Party, or any of its successors or assigns,
0.0.0.1. whether arising under or in connection with credit
agreements, notes, guaranties, reimbursement agreements, other agreements,
by operation of law or otherwise, including obligations and liabilities
under the Credit Agreement and this Agreement;
0.0.0.2. whether for money borrowed, in respect of letters of
credit, for goods and services delivered or rendered, or other amounts;
0.0.0.3. whether for principal, interest, letter of credit or
other reimbursement obligations, Cash Collateral Cover, fees, expenses,
indemnities or other amounts (including attorneys' fees and expenses),
including for reimbursement of amounts that may be advanced or expended by
the Agent (a) to satisfy amounts required to be paid by the Debtor under
this Agreement or any other Loan Document for Taxes, insurance premiums or
Charges, together with interest thereon to the extent provided, or (b) to
maintain or preserve any Collateral or create, perfect, continue or protect
any Collateral or Security Interest therein, or its priority;
0.0.0.4. whether or not evidenced by one or more instruments,
documents, agreements or other writings; and
0.0.0.5. whether incurred by the Debtor individually or as a
member of a partnership, limited liability company, or other group, or
2.2.2. or to any Person entitled to indemnification under the Credit
Agreement or the other Loan Documents for amounts owing with respect to such
indemnification,
in each case whether due or not due, direct or indirect, joint and/or several,
absolute or contingent, voluntary or involuntary, liquidated or unliquidated,
determined or undetermined, now or hereafter existing, renewed or restructured,
whether or not from time to time decreased or extinguished and later increased,
created or incurred, whether or not arising after the commencement of a
proceeding under the Bankruptcy Code (including post-petition interest) and
whether or not allowed or allowable as a claim in any such proceeding, and
whether or not recovery of any such obligation or liability may be barred by a
statute of limitations or such
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obligation or liability may otherwise be unenforceable (all obligations and
liabilities described in this Section 2.2. are collectively referred to as the
"SECURED OBLIGATIONS").
ARTICLE 3.
WARRANTIES AND REPRESENTATIONS
The Debtor represents and warrants that all representations and
warranties made with respect to it, its assets and its obligations in Article 4
of the Credit Agreement are true and correct, and makes the following additional
representations and warranties, all of which shall survive until termination of
this Agreement pursuant to Section 6.7.
SECTION 3.1. FILINGS, ETC. Duly executed financing statements
containing a correct description of the Collateral have been delivered to the
Agent for filing in every governmental office in every state, county and other
jurisdiction in the United States in which the principal or any other place of
business or the chief executive office of the Debtor, or any portion of the
Collateral, is located, to the extent necessary to establish a valid and
perfected Lien in favor of the Agent in all Collateral in which a Lien may be
perfected by filing, and no further or subsequent filing, recording or
registration is necessary in any such jurisdiction, except as provided under
Applicable Law with respect to the filing of continuation statements or if
Debtor changes its name or the location of its principal executive office or the
Collateral.
3.1.1. The Debtor has delivered to the Agent for filing (a) with the
United States Patent and Trademark Office a written notice in the form of
Exhibit 3.1.2.A (a "NOTICE OF SECURITY INTEREST IN PATENTS AND TRADEMARKS"), or
(b) with the United States Copyright Office a written notice in the form of
Exhibit 3.1.2.B (a "NOTICE OF SECURITY INTEREST IN COPYRIGHTS"), as applicable,
in each case duly completed, executed and notarized, with respect to each of the
Patents, Trademarks and Copyrights. All other Supplemental Documentation
necessary to perfect the Security Interest with respect to all Patents,
Trademarks and Copyrights has been delivered to the Agent for filing in the
appropriate governmental office.
SECTION 3.2. LOCATIONS AND NAMES. Schedule 3.2. indicates (a) the
Debtor's chief executive office and principal place of business on the date
hereof and at any time during the last four months, (b) all other places of
business of the Debtor on the date hereof or at any time during the last four
months, and all other locations at which any tangible Collateral or books and
records related to any Collateral, including computer programs, printouts and
other computer materials, are now located or were located during the past four
months, (c) the Debtor's federal tax identification number, and (d) all prior or
current trade or legal names used to identify the Debtor in its business or in
the ownership of its properties.
SECTION 3.3. TITLE TO COLLATERAL; VALIDITY AND PERFECTION OF SECURITY
INTEREST; ABSENCE OF OTHER LIENS. The Debtor has good and marketable title to
all Collateral free of all defects that might affect the Collateral in any
material respects. The Security Interest constitutes a valid and, upon delivery
of all Pledged Collateral to the Secured Party pursuant to Section 4.8. hereof
and the filing of financing statements, Notices of Security Interests in Patents
and Trademarks, and Notices of Security Interests in Copyrights with the
appropriate Governmental
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Authorities, perfected Lien in all of the Collateral, and secures payment and
performance of the Secured Obligations. The Collateral is free and clear of all
Liens other than the Security Interest and other Permitted Liens. Except for
financing statements in favor of the Agent or in connection with Permitted
Liens, the Debtor has not executed or permitted to be filed any financing
statement covering any Collateral.
SECTION 3.4. INSURANCE. Schedule 2.1.13.2. is an accurate and
complete list of all policies of insurance covering physical loss or damage to
Collateral in which the Debtor has an interest.
SECTION 3.5. CHATTEL PAPER. The business practices of the Debtor do
not involve the receipt of Chattel Paper, except in connection with the
collection of overdue or disputed Accounts Receivable.
SECTION 3.6. PATENTS, TRADEMARKS AND COPYRIGHTS. As of the date
hereof, Schedule 2.1.13.5. lists all patents, patent applications, trademarks,
trademark applications, service marks, service xxxx applications, copyrights and
copyright applications (collectively, "PATENTS, TRADEMARKS AND COPYRIGHTS") in
which the Debtor has an interest. Except as disclosed on Schedule 2.1.13.5.,
all Patents, Trademarks and Copyrights are valid and enforceable and the Debtor
is the sole and exclusive owner of each of the Patents, Trademarks and
Copyrights, free and clear of any Liens other than Permitted Liens (including
licenses, shop rights and covenants not to xxx).
SECTION 3.7. CERTIFICATES OF TITLE. As of the date hereof, the
Debtor owns no Equipment for which evidences of ownership ("CERTIFICATES")
(including certificates of title, applications for title documentation and such
other documents) may be required to be delivered to the Agent to transfer and
register title thereto to the Agent for the purpose of perfecting the Security
Interest of the Agent therein.
SECTION 3.8. REGARDING THE PLEDGED STOCK. Schedule 3.8. sets forth
the number of authorized and the number of issued shares of each class of
Capital Stock of each issuer of Pledged Stock. All outstanding Capital Stock of
each such issuer has been duly authorized, validly issued and is fully paid and
non-assessable. There are no outstanding options, warrants, convertible
securities or other rights, contingent or absolute, to acquire any Capital Stock
of any such issuer, except as set forth on Schedule 3.8.
SECTION 3.9. REGARDING THE PLEDGED INTERESTS.
3.9.1. Schedule 3.9. describes the capitalization of each Interest
Issuer. To the Debtor's knowledge, all outstanding equity capital of each such
Interest Issuer has been duly authorized and validly issued and, except as
indicated on Schedule 3.9., is fully paid and non-assessable. To the Debtor's
knowledge, there are no outstanding options, warrants, convertible securities or
other rights, contingent or absolute, to acquire any equity capital of any
Interest Issuer, except as set forth on Schedule 3.9.
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3.9.2. To the Debtor's knowledge, each Governing Agreement is in full
force and effect and constitute valid, legal and binding obligations of the
respective parties thereto and has not/have not been amended. To the Debtor's
knowledge, except as disclosed on Schedule 3.9., no default exists under any
Governing Agreement.
SECTION 3.10. REGARDING THE PLEDGED DEBT.
3.10.1. The Debtor has delivered to the Agent a Consent and
Acknowledgment substantially in the form of Exhibit 3.10., duly executed by each
obligor on Pledged Debt (each "PLEDGED DEBT CONSENT"). Each Pledged Debt
Consent is in full force and effect and constitutes a legal, valid and binding
obligation of the respective obligor thereunder.
3.10.2. Except as disclosed on Schedule 3.10., (a) to the Debtor's
knowledge, each Pledged Debt is in full force and effect and constitutes a
legal, valid and binding obligation of the obligor thereunder in the amount
thereof set forth on Schedule B-2, (b) no Pledged Debt is in default, and (c) to
the Debtor's knowledge, there are no setoffs or counterclaims or disputes
existing or asserted with respect to any Pledged Debt.
ARTICLE 4.
COVENANTS AND AGREEMENTS
SECTION 4.1. FURTHER ASSURANCES. The Debtor shall, at its own
expense, perform on request of the Agent such acts as may be necessary or
advisable in the opinion of the Agent, or that the Agent may request at any
time, to assure the attachment, perfection and first priority (subject to
Permitted Liens) of the Security Interest, to exercise the rights and remedies
of the Secured Parties hereunder or to carry out the intent of this Agreement.
Without limitation, at the Agent's request, the Debtor shall execute and deliver
(or cause any third party to execute and deliver) to the Agent, at any time and
from time to time, all Supplemental Documentation that the Agent may reasonably
request, in form and substance reasonably acceptable to the Agent. With respect
to (i) any material copyright not registered with the United States Copyright
Office on the date hereof, and (ii) upon obtaining or acquiring any additional
material copyrights, Debtor will, on an ongoing basis, promptly, and in any
event not less than (x) ninety (90) days after the Closing Date with respect to
the items referenced in clause (i) above and (y) sixty (60) days after Debtor
obtains or acquires any additional material copyright, file a registration
application with respect to each such unregistered additional material copyright
of the type referenced in clause (ii) above, and each such unregistered
additional material copyright of its subsidiaries, with the United States
Copyright Office and shall with respect to each such additional material
copyright and any patents or trademarks which Debtor shall subsequently file
applications with the United States Patent and Trademark Office, amend Schedule
2.1.13.5 hereto and file a Notice of Security Interest in Copyrights, or Notice
of Security Interest in Patents and Trademarks, as applicable with the United
States Copyright Office or United States Patent and Trademark Office, as
applicable. A copyright will be considered material (i) if Debtor derives any
revenues in any fiscal quarter in excess of $1,000,000 from such copyright, (ii)
if such copyright has a value in excess of $1,000,000, (iii) if it consists of
any derivative work for
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which Debtor seeks compensation or receives economic benefit in any fiscal
quarter in excess of $1,000,000 or if it otherwise involves a significant
improvement, enhancement or upgrade, or (iv) if in connection with the sale or
disposition of such copyright the absence of such registration would materially
adversely affect the price or marketability thereof. The Debtor agrees that a
photocopy of this Agreement or of a financing statement is sufficient as a
financing statement.
SECTION 4.2. INSPECTION, VERIFICATION, ETC. The Debtor shall keep or
cause to be kept accurate and complete records of the Collateral at the Debtor's
chief executive office. The Agent and its employees and agents shall have the
right, at all times during the Debtor's usual business hours and upon reasonable
notice, to (a) inspect and verify the quality, quantity, value and condition of,
or any other matter relating to, the Collateral, (b) inspect all records
relating thereto and to make (or require the Debtor to provide) copies of such
records, and (c) enter upon all premises upon which any of the Collateral is
located. In the case of Receivables or tangible Collateral in the possession of
a third Person, the Agent may, during the existence of any Event of Default,
contact Account Debtors or such third Person for the purpose of making such
inspection and verification. The Agent shall have the absolute right to share
any information it gains from such inspection or verification with the other
Secured Parties. During the existence of any Event of Default, the Agent may at
any time require the Debtor to segregate all Proceeds so that they are capable
of identification in such manner that the Agent shall have a perfected first
priority Lien therein, subject only to Permitted Liens.
SECTION 4.3. POWER OF ATTORNEY. The Debtor hereby irrevocably
appoints the Agent and its employees and agents as the Debtor's true and lawful
attorneys-in-fact, with full power of substitution, to do (a) all things
required to be done by the Debtor under this Agreement or the other Loan
Documents, and (b) to do all things that the Agent may deem necessary or
advisable to assure the attachment, perfection and first priority (subject to
Permitted Liens) of the Security Interest or otherwise to exercise the rights
and remedies of the Secured Parties hereunder or carry out the intent of this
Agreement, in each case irrespective of whether a Default or Event of Default
then exists and at the Debtor's expense. Without limitation, the Agent and its
officers and agents shall be entitled to do all of the following, as fully as
the Debtor might:
4.3.1. to sign the name of the Debtor on any Supplemental
Documentation and to deliver and file such Supplemental Documentation to or with
such Persons as the Agent, in its sole discretion, may elect;
4.3.2. to sign any certificate of ownership, registration card,
application therefor, affidavits or documents necessary to transfer title to any
of the Collateral, to receive and receipt for all licenses, registration cards
and certificates of ownership;
4.3.3. to affix, by facsimile signature or otherwise, the general or
special endorsement of the Debtor, in such manner as the Agent shall deem
advisable, to any Pledged Collateral that has been delivered to or obtained by
the Agent without appropriate endorsement or assignment; and
12
4.3.4. if the Debtor at any time fails to obtain or maintain any of
the policies of insurance on the Collateral as required under Section 5.7 of the
Credit Agreement, with endorsements as provided therein, or fails to pay any
premium in whole or in part when due under such policies, to obtain and maintain
such policies of insurance and pay such premiums and take such other action with
respect thereto as the Agent deems advisable.
In addition, during the existence of an Event of Default, the Agent or
its employees or agents may, without notice to the Debtor and at such time or
times as the Agent in its sole discretion may determine, in the Debtor's or in
the Agent's name:
4.3.4.1. collect any and all amounts due to the Debtor from
Account Debtors with respect to Receivables by legal proceedings or otherwise;
4.3.4.2. make, settle and adjust any claims under insurance
policies and make any decisions with respect thereto; and
4.3.4.3. attend and vote at any and all meetings of the holders
of Securities as provided in Section 4.9.
The Agent shall be under no obligation whatsoever to take any of the
foregoing actions, and, absent bad faith or willful misconduct, the Agent and
its shareholders, directors, officers, employees and agents shall have no
liability or responsibility for any act taken or omitted with respect thereto.
A copy of this Agreement and, if applicable, a statement by the Agent that an
Event of Default exists shall be conclusive evidence of the Agent's right to act
under this Section 4.3. as against all third parties.
SECTION 4.4. CHANGES OF LOCATIONS OF COLLATERAL, OFFICES, NAME OR
STRUCTURE. The Debtor shall not remove any Collateral, books or records to, or
keep any Collateral, books or records or do business at, a location not set
forth on the Schedule of Locations and Names, adopt a trade name or change its
name, chief executive office, principal place of business, identity or structure
without 30 days prior written notice to the Agent.
SECTION 4.5. PAYMENT OF CHARGES AND CLAIMS. The Debtor shall pay
(a) all Charges imposed upon any Collateral, and (b) all claims (including
claims for labor, services and materials) that have become due and payable and,
under Applicable Law, have or may become Liens (other than Permitted Liens) upon
any Collateral, in each case before any Material penalty shall be incurred with
respect thereto; PROVIDED, HOWEVER, unless foreclosure, levy or similar
proceedings shall have commenced, the Debtor need not pay or discharge any such
Charges or claims so long as the validity or amount thereof is being contested
in good faith and by appropriate proceedings and so long as adequate reserves
therefor have been established in accordance with GAAP. If the Debtor fails to
pay or obtain the discharge of any Charge, claim or Lien required to be paid or
discharged under this Section and asserted against any Collateral having a
Material fair market value or involving Material disputed amounts, the Debtor
shall so notify the Agent and, regardless of whether such notice is given, the
Agent may, at any time and from time to time, in its sole discretion and without
waiving or releasing any obligation of the Debtor under this Agreement or the
other Loan Documents or waiving any Default or Event of
13
Default, make such payment, obtain such discharge or take such other action with
respect thereto as the Agent deems advisable; PROVIDED, HOWEVER, that the Agent
shall in any event first have given the Debtor written notice of its intent to
do the same and the Debtor shall not have, within 15 days of such notice, paid
such Charge or claim or obtained to the Agent's satisfaction the release of the
claim or Lien to which such notice relates.
SECTION 4.6. CONTINUING OBLIGATIONS OF THE DEBTOR; DUTY OF CARE.
4.6.1. Anything herein to the contrary notwithstanding, (i) the
Debtor shall remain liable under each of its Contractual Obligations and each
Governing Agreement to the extent set forth therein to perform its duties and
obligations thereunder, and shall receive all allocations of income, gain,
expense, loss and other items, to the same extent as if this Agreement had not
been executed, (ii) the exercise by the Agent of any of its rights hereunder
shall not release the Debtor from any of its duties or obligations under each
Governing Agreement and Contractual Obligation, and (iii) the Secured Parties
shall not have any obligation or liability, and shall receive no allocations of
income, gain, expense, loss or other items, under such Governing Agreement or
Applicable Law by reason of this Agreement, nor shall the Secured Parties be
obligated to perform any of the obligations or duties of the Debtor thereunder,
to make any payment of Taxes or other amounts, to make any inquiry as to the
nature or sufficiency of any payment received by the Debtor or the Agent or the
sufficiency of any performance by any party under such Governing Agreement or to
take any action to collect or enforce any claim for payment assigned hereunder.
The Secured Parties shall not by reason of this Agreement or the exercise of any
remedies hereunder become responsible or liable in any manner or to any extent
for the obligations and liabilities of any Interest Issuer or the Debtor,
whether now existing or hereafter incurred.
The Debtor shall remain liable to observe and perform Contractual
Obligations in accordance with their respective terms. The Secured Parties
shall not have any duty, obligation or liability under or with respect to any
such Contractual Obligations, whether by reason or arising out of this
Agreement, the receipt by any Secured Party of any payment or allocation
relating to any such Contractual Obligation or otherwise, and the Debtor agrees
to indemnify and hold harmless the Secured Parties from any and all such
obligations and liabilities.
4.6.2. The Secured Parties shall have no duty of care with respect to
the Collateral, except that each Secured Party shall have an obligation to
exercise reasonable care with respect to Collateral in its possession; PROVIDED,
HOWEVER, that (a) each Secured Party shall be deemed to have exercised
reasonable care if Collateral in its possession is accorded treatment
substantially comparable to that which such Secured Party accords its own
property or treatment substantially in accordance with actions requested by the
Debtor in writing, although such Secured Party shall not be obligated to comply
with any such requests, and (b) the Secured Parties shall have no obligation to
take any actions to preserve rights against other parties or property with
respect to any Collateral. Without limitation, the Secured Parties shall
(i) bear no risk or expense with respect to any Collateral, and (ii) have no
duty with respect to calls, conversions, presentments, maturities, notices or
other matters relating to Pledged Collateral, or to maximize interest or other
returns with respect thereto.
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4.6.3. The Debtor hereby agrees to indemnify and hold harmless each
Secured Party and its directors, officers, employees and agents against any and
all claims, actions, liabilities, reasonable costs and expenses of any kind or
nature whatsoever (including reasonable fees and disbursements of counsel) that
may be imposed on, incurred by, or asserted against any of them, in any way
relating to or arising out of this Agreement or any action taken or omitted by
them hereunder (including such obligations and liabilities of the Interest
Issuer or of the Debtor for Taxes), except to the extent a court holds in a
final and nonappealable judgment that they directly resulted from the gross
negligence or willful misconduct of any such Person against and from all such
obligations and liabilities.
4.6.4. The Agent may at any time deliver or redeliver the Collateral
or any part thereof to the Debtor and the receipt of any of the same by the
Debtor shall be complete and full acquittance for the Collateral so delivered,
and the Agent thereafter shall be discharged from any liability or
responsibility therefor.
SECTION 4.7. SALE OF COLLATERAL; FURTHER ENCUMBRANCES.
The Debtor shall not (a) except for (i) dispositions of Inventory in
the ordinary course of the Debtor's business and not prohibited by the Credit
Agreement or the other Loan Documents, (ii) dispositions of assets that are
worn-out, obsolete or no longer useful to its business, PROVIDED that such
assets are of immaterial value, and (iii) dispositions expressly permitted by
this Section 4.7. (collectively, "PERMITTED SALES"), sell, lease or otherwise
dispose of any Collateral, or any interest therein, or (b) grant or suffer to
exist any Lien in or on any Collateral (except Permitted Liens) or sign or
authorize the filing of any financing statement with respect to any of the
Collateral (except with respect to Permitted Liens). If any Collateral, or any
interest therein, is disposed of in violation of these provisions, to the extent
permitted by Applicable Law, the Security Interest shall continue in such
Collateral or interest notwithstanding such disposition, the Person to whom the
Collateral or interest is being transferred shall be bound by this Agreement and
the Debtor shall deliver all Proceeds thereof to the Agent to be held as
Collateral hereunder.
SECTION 4.8. DELIVERY OF PLEDGED COLLATERAL. 4.8.1. On the date
hereof, the Debtor is delivering to the Agent all Collateral consisting of Notes
Receivable, Chattel Paper, negotiable Documents evidencing title to any
Collateral, certificated securities, instruments or the like the physical
possession of which is necessary in order for the Security Interest to be
perfected or delivery of which was requested by the Agent to assure the priority
of the Security Interest therein (such Collateral being "PLEDGED COLLATERAL").
The Debtor shall deliver to the Agent promptly after acquisition thereof all
Pledged Collateral acquired after the date hereof. All Pledged Collateral shall
be in suitable form for transfer by delivery, or be duly endorsed to the order
of the Agent or accompanied by duly executed instruments of transfer or
assignment in blank, all in form and substance satisfactory to the Agent. After
the occurrence and during the continuation of any Event of Default, the Agent
shall have the right, at any time in its discretion and without notice to the
Debtor, to transfer to or to register in the name of the Agent or its nominee
any or all of the Collateral, subject only to the revocable rights specified in
Section 4.6. In addition, after the occurrence and during the continuation of
any Event of Default the Agent
15
shall have the right at any time to exchange certificates or instruments
representing or evidencing Pledged Collateral for certificates or instruments of
smaller or larger denominations.
4.8.2. Without limitation of subsection 4.8.1. above, if the Debtor
receives or becomes entitled to receive any securities issued by any issuer of
Pledged Stock, or any successor thereto, in any manner in substitution for or in
addition to the Pledged Stock, or if the Debtor shall become entitled to receive
or shall receive any securities or other property in addition to, in
substitution of, as a conversion of, or in exchange for, any of the Pledged
Stock or any other Collateral, the Debtor shall receive the same as the agent
for the Agent, and shall hold the same in trust for and deliver the same
promptly to the Agent in the exact form in which received, together with
appropriate instruments of transfer or assignments in blank, to be held by the
Agent as Collateral hereunder.
4.8.3. If for any reason any portion of the Pledged Collateral cannot
be delivered to or for the account of the Agent as provided in Sections 4.8.1.
and 4.8.2., the Debtor shall promptly take such other steps as shall be
requested from time to time by the Agent to effect a transfer of a perfected
first priority security interest in and pledge of the Pledged Collateral to the
Agent for itself and for the ratable benefit of the Secured Parties pursuant to
the UCC. To the extent practicable, the Debtor shall thereafter deliver the
Pledged Collateral to or for the account of the Agent as provided in
Sections 4.8.1. and 4.8.2.
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SECTION 4.9. VOTING AND OTHER CONSENSUAL RIGHTS; DISTRIBUTIONS.
4.9.1. So long as no Event of Default shall exist:
4.9.1.1. The Debtor shall be entitled to exercise any and all
voting, management and other consensual rights pertaining to any Collateral
(other than the Pledged Debt), for any purpose not inconsistent with the terms
of this Agreement and the other Loan Documents; PROVIDED, HOWEVER, that the
Debtor shall not exercise any such right if it would result in a Default or an
Event of Default or have a Material Adverse Effect. Within 10 days of
exercising any such right in a manner Material to the Secured Parties, the
Debtor shall give notice to the Agent of such exercise and the action taken or
approved in connection therewith.
4.9.1.2. Except as otherwise provided herein, the Debtor shall
be entitled to receive and retain and use free of the Security Interest any and
all cash and other property paid or otherwise distributed in respect of the
Collateral; PROVIDED, HOWEVER, that any and all (A) dividends and other
distributions paid or payable other than in cash or in the form of Pledged
Collateral, (B) cash paid upon or in respect of any of the Collateral upon or in
respect of the liquidation or dissolution of any issuer thereof or upon or in
respect of any distribution of capital or redemption or exchange of any
Collateral, and (C) cash paid with respect to the principal of, or in redemption
or exchange of, any Pledged Debt, shall be delivered to the Agent, in the exact
form received, to be held as Collateral hereunder.
4.9.2. So long as an Event of Default shall exist, at the sole option
of the Agent, any or all rights of the Debtor to exercise voting, management and
other consensual rights and to receive cash and other property distributed in
respect of Collateral as permitted by subsections 4.9.1.1. and 4.9.1.2. above,
shall cease, at the option of the Agent, and the Agent, if and when it notifies
the Debtor of the exercise of such option, shall have the sole right to exercise
any or all such voting and other consensual rights and receive and to hold as
Collateral any or all such cash and other property.
4.9.3. So long as an Event of Default shall exist, the Debtor shall
not accelerate, demand, xxx for, collect, enforce any claim for or set off with
respect to principal, premium, interest or any other amount constituting or
payable with respect to Pledged Debt, foreclose any Lien securing Pledged Debt
or otherwise exercise any remedy under the Pledged Debt or otherwise available
to it with respect thereto (including filing, taking or maintaining any
proceeding under the Bankruptcy Code against or with respect to the obligor
under any Pledged Debt) or take any other action against any obligor under any
Pledged Debt or the property of such obligor with respect to such Pledged Debt,
without the Agent's prior written consent (which consent may be withheld in the
Agent's discretion); provided that the Debtor shall file a proof of claim in
respect of the Pledged Debt in any proceeding under the Bankruptcy Code or any
similar proceeding as and when required therein. So long as an Event of Default
shall exist, the Agent, upon notice to the Debtor, shall have the right to
exercise any or all of the foregoing rights and
17
remedies and to hold as Collateral any and all cash and other property received
in connection therewith.
4.9.4. All cash and other property required to be delivered to the
Agent hereunder shall, if received by the Debtor, be received in trust for the
benefit of the Secured Parties, be segregated from the other property of the
Debtor, and promptly be delivered to the Agent in the same form as so received
(with any appropriate endorsements or assignments).
4.9.5. The Agent shall execute and deliver (or cause to be executed
and delivered) to the Debtor all proxies and other instruments as the Debtor may
reasonably request for the purpose of enabling the Debtor to exercise the voting
and other rights which it is entitled to exercise pursuant to
subsection 4.9.1.1. above.
4.9.6. The Agent agrees to release promptly to the Debtor any cash or
other property paid or distributed in respect of the Collateral and received by
the Agent pursuant to Section 4.9.2. if, prior to the occurrence of an
Acceleration, all Defaults and Events of Default are no longer continuing.
SECTION 4.10. PROTECTION OF SECURITY; NOTICE OF LEVY. Except with
respect to Collateral which the Debtor is permitted to dispose of in connection
with Permitted Sales, the Debtor shall, at its own cost and expense, take any
and all actions necessary to defend title to the Collateral against all Persons
and against all claims and demands and to preserve, protect and defend the
Security Interest and the priority thereof, against any adverse Liens not
permitted under the Credit Agreement and the other Loan Documents. The Debtor
will promptly notify the Agent of any attachment or other legal process levied
against any Collateral.
SECTION 4.11. ASSIGNMENT OF INCOME AND PROFITS.
4.11.1. The Debtor hereby absolutely and presently assigns to the
Agent all rents, issues, income, profits and other Proceeds of or from the
Collateral, all of which shall, following an Acceleration, be paid directly to
the Agent. If the Debtor receives any such Proceeds during the existence of an
Event of Default, such Proceeds shall be received by the Debtor in trust for the
Secured Parties and shall immediately be delivered to the Agent for application
to the Secured Obligations.
4.11.2. Except as otherwise provided herein or in the other Loan
Documents, the Debtor shall have the right to make collections on, receive and
use all Proceeds in the ordinary course of business so long as no Event of
Default shall exist. Upon the occurrence of an Event of Default, at the sole
option of the Agent, the Debtor's right to make collections on the Collateral
and receive and use such Proceeds shall terminate, and any and all Proceeds then
held or thereafter received shall be held or received by the Debtor in trust for
the Secured Parties and immediately delivered in kind to the Agent, together
with any necessary endorsements or instruments of assignment. Any remittance
received by the Debtor from any Person shall be presumed to relate to the
Collateral and to be Proceeds.
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SECTION 4.12. ADVERSE CHANGES IN VALUE AND MARKETABILITY. The Debtor
shall notify the Agent promptly of any occurrence resulting in a loss or decline
in value of any Collateral or affecting its marketability, that is Material and
the estimated (or actual, if available) amount of such loss or decline and a
description of the effect on marketability.
SECTION 4.13. RESTRICTION ON CERTAIN CHANGES AFFECTING
COLLATERAL. The Debtor shall not, without the prior written consent of the
Agent, adjust, settle or compromise the amount or payment of any Receivables or
Pledged Debt, release wholly or partly any Account Debtor upon any Receivable
and obligor upon any Pledged Debt, allow any credit or discount thereon or
accept any return of goods, except in the ordinary course of business. Except
as expressly permitted by the Credit Agreement, the Debtor shall not, without
the prior written consent of Agent, vote in favor of any amendment of any
Governing Agreement.
ARTICLE 5.
EVENTS OF DEFAULT; RIGHTS AND REMEDIES ON DEFAULT
SECTION 5.1. EVENT OF DEFAULT. The occurrence of one or more "Events
of Default" (as defined in the Credit Agreement) shall constitute an "EVENT OF
DEFAULT".
SECTION 5.2. REMEDIES. If (a) upon or after the occurrence of any
Event of Default, the Agent elects or is directed by the Required Secured
Parties to exercise remedies under this Agreement, or (b) there occurs an Event
of Default described in Sections 7.1.7 or 7.1.8 of the Credit Agreement (the
occurrence of any such event shall be referred to as an "ACCELERATION"), then,
whether or not all the Secured Obligations shall have become immediately due and
payable:
5.2.1. In addition to all its other rights, powers and remedies under
this Agreement and Applicable Law, each Secured Party shall have, and may
exercise in accordance with the Credit Agreement and this Agreement, any and all
of the rights, powers and remedies of a secured party under the UCC, all of
which rights, powers and remedies shall be cumulative and not exclusive, to the
extent permitted by Applicable Law.
5.2.2. The Agent shall have the right, all at the Agent's sole option
and as the Agent in its discretion may deem necessary or advisable, to do any or
all of the following:
5.2.2.1. following an Acceleration, to foreclose the Security
Interest by any available judicial procedure or without judicial process;
5.2.2.2. subject to the rights of landlords, if any, to enter
upon the premises of the Debtor or any other place or places where Collateral is
located through self-help and without judicial process, without giving the
Debtor notice and opportunity for a hearing on the validity of the Agent's claim
and without any obligation to pay rent;
5.2.2.3. to inspect and appraise the Collateral and to prepare,
repair, assemble or process the Collateral for sale, lease or other disposition;
19
5.2.2.4. following an Acceleration, to remove Collateral to the
premises of the Agent or any other location selected by the Agent, for such time
as the Agent may desire, for any purpose not prohibited hereby;
5.2.2.5. following an Acceleration, to apply any Collateral or
any other assets of the Debtor in the possession of the Agent to the Secured
Obligations;
5.2.2.6. to notify Account Debtors and other obligors on the
Collateral that the Collateral has been assigned to the Agent and that all
payments thereon are to be made directly and exclusively to or as specified by
the Agent;
5.2.2.7. following an Acceleration, to collect by legal
proceedings or otherwise (including by foreclosure of any Lien securing Pledged
Debt) all dividends, distributions, interest, principal or other sums now or
hereafter payable upon or on account of the Collateral;
5.2.2.8. to enter into any extension or reorganization agreement
or any other agreement relating to or affecting the Collateral and, in
connection therewith, deposit or surrender control of any Collateral or accept
other property in exchange therefor;
5.2.2.9. to settle, compromise or release, on terms acceptable
to the Agent, in whole or in part, any amounts owing on the Collateral or any
insurance thereof or relating thereto or any disputes with respect thereto or
such insurance;
5.2.2.10. to receive, open and dispose of all mail addressed to
the Debtor and notify postal authorities to change the address for delivery
thereof to such address as the Agent may designate, PROVIDED, HOWEVER, that the
Agent agrees that it will promptly deliver over to the Debtor any such opened
mail as does not relate to the Collateral;
5.2.2.11. following an Acceleration, to exercise all rights and
powers under Contractual Obligations or Governing Agreement included in the
Collateral including any right of termination; and
5.2.2.12. following an Acceleration, to exercise any and all
other rights, powers, privileges and remedies of an owner of the Collateral,
including rights of conversion, exchange or subscription or other rights or upon
the exercise by the Debtor or the Agent of any right, power or privilege
pertaining to the Pledged Collateral, the right to deposit and deliver any and
all of the Pledged Collateral to any committee, depositary, transfer agent,
registrar or other designated agency upon such terms and conditions as the Agent
may determine to be appropriate, all without liability except to account for
property actually received by it, but the Agent shall have no duty to the Debtor
to exercise any such right, power or privilege and shall not be responsible for
any failure to do so or delay in so doing.
5.2.3. The Debtor shall, at the Agent's request, assemble the
Collateral and make it available to the Agent at a reasonable place to be
designated by the Agent. The Debtor shall make available to the Agent all
computer and other equipment of the Debtor containing books
20
and records pertaining to the Collateral (and the assistance of the employees of
the Debtor having responsibility for such equipment) and to use such computer
and other equipment at no charge for the purpose of obtaining information
pertaining to the Collateral, including by making copies of computer and other
files and records.
5.2.4. Until the Agent is able to effect a sale, lease or other
disposition of Collateral or any part thereof, the Agent shall have the right to
use, process or operate the Collateral or any part thereof to the extent that it
deems appropriate for the purpose of preserving Collateral or its value or for
any other purpose deemed appropriate by the Agent. The Agent shall have the
right, without notice or demand, either in person or by agent, and without
regard to the adequacy of any security for the Secured Obligations, to take
possession of the Collateral or any part thereof and to collect and receive the
rents, issues, profits, income and proceeds thereof. Taking possession of the
Collateral shall not cure, waive or affect an Event of Default or notice thereof
or invalidate any act done pursuant to such notice.
5.2.5. The Agent may, if it so elects, seek the appointment of a
receiver or keeper to take possession of Collateral and to enforce any of the
Agent's remedies with respect to such appointment without prior notice or
hearing. The rights, remedies and powers of any receiver appointed by a court
shall be as ordered by the court.
5.2.6. The Agent shall have the right to sell, lease or otherwise
dispose of all or any Collateral in its then existing condition, or, after any
further assembly, manufacturing or processing thereof, at public or private sale
or sales, with such notice as may be required by Section 5.4., in lots or in
bulk, for cash or on credit, with or without representations or warranties, all
as the Agent, in its discretion, may deem advisable. The Agent shall not be
obligated to make any sale of the Collateral regardless of notice of sale having
been given. If sale of all or any part of the Collateral is made on credit or
for future delivery, the Collateral so sold may be retained by the Agent until
the sale price is paid by the purchaser or purchasers thereof, but the Agent
shall not incur any liability in case any such purchaser or purchasers shall
fail to take up and pay for the Collateral so sold and, in case of any such
failure, such Collateral may be sold again upon like notice. The Agent shall
have the right to conduct such sales on the Debtor's premises or elsewhere and
shall have the right to use the Debtor's premises without charge for such sales
for such duration as the Agent deem necessary or advisable. The Collateral need
not be present at any such sales. To the extent necessary or desirable, in the
judgment of the Agent, to enable the Agent to dispose of Collateral following an
Acceleration, the Agent is authorized, without any obligation for rent, license
fees or other charge, to use the supplies, equipment, facilities and space at
the Debtor's place of business and is hereby granted a license or other right to
use, without charge, the Patents, Trademarks and Copyrights, trade secrets,
names, trade names, customer lists, labels, advertising matter, and all property
of a similar nature that the Debtor owns or is entitled to use, as it pertains
to any Collateral, in preparing, repairing, assembling, processing, advertising
for sale or lease or otherwise in connection with the disposition of any
Collateral, and the Debtor's rights under all licenses and all franchise
agreements shall to such extent and for such purpose inure to the Agent's
benefit. The Agent may purchase all or any part of the Collateral at public or,
if permitted by Applicable Law, private sale, and, in lieu of actual payment of
the purchase price, the Agent may apply against
21
such purchase price any amount of the Secured Obligations. The Debtor agrees
that any sale of Collateral conducted by the Agent in accordance with the
foregoing provisions of this Section and Section 5.3. shall be deemed to be a
commercially reasonable sale under Section 9-504 of the UCC.
5.2.7. All Cash Collateral Cover shall be held by the Agent as
Collateral for the Secured Obligations and at any time after the respective
contingent or unmatured Secured Obligation shall become due and payable (whether
upon drawing on a letter of credit, demand on a guaranty or otherwise) may be
applied as set forth in Section 5.3.
5.2.8. The Agent shall not be required to register or qualify any of
the Collateral that constitutes securities under applicable state or federal
securities laws in connection with any sale or other disposition thereof if such
disposition is effected in a manner that complies with all applicable federal
and state securities laws. The Agent shall be authorized at any such
disposition (if it deems it advisable to do so) to restrict the prospective
bidders or purchasers to persons who will represent and agree that they are
"accredited investors" or "qualified institutional buyers" under Applicable Law
and purchasing the Collateral for their own account for investment and not with
a view to the distribution or sale thereof. If any such Collateral is sold at
private sale, the Debtor agrees that if such Collateral is sold in a manner that
the Agent in good faith believes to be reasonable under the circumstances then
existing, then (a) the sale shall be deemed to be commercially reasonable in all
respects, (b) the Debtor shall not be entitled to a credit against the Secured
Obligations in an amount in excess of the purchase price, and (c) the Secured
Parties shall not incur any liability or responsibility to the Debtor in
connection therewith, notwithstanding the possibility that a substantially
higher price might have been realized at a public sale. The Debtor recognizes
that a ready market may not exist for such Collateral if it is not regularly
traded on a recognized securities exchange, and that a sale by the Agent of any
such Collateral for an amount substantially less than the price that might have
been achieved had the Collateral been so traded may be commercially reasonable
in view of the difficulties that may be encountered in attempting to sell
Collateral that is privately traded.
22
SECTION 5.3. APPLICATION OF PROCEEDS.
5.3.1. Any cash proceeds received by the Agent in respect of any sale
of, collection from or other realization upon, all or any part of the Collateral
following the occurrence of an Acceleration or otherwise (including insurance
proceeds) may be held by the Agent as Collateral and/or then or at any time
thereafter applied as follows:
5.3.1.1. first, to the Agent to pay all advances, charges, costs
and expenses payable to the Agent pursuant to Section 6.1.; and
5.3.1.2. second, to the Agent for application against or on
account of the Secured Obligations and disbursement to the other Secured
Parties, on a pro rata basis determined by the amount of Secured Obligations
then outstanding.
5.3.2. The Debtor and any other Person then obligated therefor shall
pay to the Agent on demand any deficiency with regard to the Secured Obligations
that may remain after such sale, collection or realization of, from or upon the
Collateral.
5.3.3. Any surplus of cash and any Receivables held by the Agent and
remaining after payment in full of all the Secured Obligations (and provision
for full cover for any contingent or unmatured Secured Obligations in the form
of Cash Collateral Cover as provided in Section 7.2.3. of the Credit Agreement)
shall be reassigned and redelivered as provided in Section 6.7.
5.3.4. Payments received from any third party on account of any
Collateral shall not reduce the Secured Obligations until paid in cash to the
Agent. The application of proceeds by the Agent shall be without prejudice to
the Agent's rights as against the Debtor or other Persons with respect to any
Secured Obligations that may then be or remain unpaid.
5.3.5. If, at any time after an Acceleration the Debtor receives any
collections upon or other Proceeds of any Collateral, whether in the form of
cash, Notes Receivable or otherwise, such Proceeds shall be received in trust
for the Secured Parties and the Debtor shall keep all such Proceeds separate and
apart from all other funds and property so as to be capable of identification as
the property of the Secured Parties and promptly deliver such Proceeds to the
Agent in the identical form received.
SECTION 5.4. NOTICE. Unless the Collateral is perishable or
threatens to decline speedily in value or is of a type customarily sold on a
recognized market, the Agent will send or otherwise make available to the Debtor
reasonable notice of the time and place of any public sale or of the time on or
after which any private sale of any Collateral is to be made. The Debtor agrees
that any notice required to be given by the Agent of a sale or other disposition
of Collateral, or any other intended action by the Agent, that is received in
accordance with the provisions set forth in Section 6.4. ten days prior to such
proposed action, shall constitute commercially reasonable and fair notice
thereof to the Debtor. The Agent may adjourn any public or private sale from
time to time by announcement at the time and place fixed therefor and such sale
may, without further notice, be made at the time and place to which it was so
23
adjourned. The Debtor hereby waives any right to receive notice of any public
or private sale of any Collateral or other security for the Secured Obligations
except as expressly provided for in this Section.
ARTICLE 6.
GENERAL
SECTION 6.1. AGENT'S EXPENSES, INCLUDING ATTORNEYS' FEES. Regardless
of the occurrence of a Default or Event of Default, the Debtor agrees to pay to
the Agent any and all reasonable advances, charges, costs and expenses,
including the reasonable fees and expenses of counsel and any experts or agents,
that the Agent may incur in connection with (a) the administration of this
Agreement, (b) the creation, perfection or continuation of the Security Interest
or protection of its priority or the Collateral, including the discharging of
any prior or junior Lien or adverse claim against the Collateral or any part
thereof that is not permitted hereby or by the Credit Agreement, (c) the
custody, preservation or sale of, collection from or other realization upon, any
of the Collateral, (d) the exercise or enforcement of any of the rights, powers
or remedies of the Agent under this Agreement or under Applicable Law (including
attorneys' fees and expenses incurred by the Agent in the collection of
Collateral deposited with the Agent and amounts incurred in connection with the
operation, maintenance or foreclosure of the Security Interest) or any workout
or restructuring or insolvency or bankruptcy proceeding, or (e) the failure by
the Debtor to perform or observe any of the provisions hereof. All such amounts
and all other amounts payable hereunder shall be payable on demand, together
with interest to the extent provided in Section 2.2. of the Credit Agreement.
SECTION 6.2. AMENDMENTS AND OTHER MODIFICATIONS. No amendment of any
provision of this Agreement (including a waiver thereof or consent relating
thereto) shall be effective unless the same shall be in writing and signed by
the Agent and the Debtor. Any waiver or consent relating to any provision of
this Agreement shall be effective only in the specific instance and for the
specific purpose for which given. No notice to or demand on the Debtor in any
case shall entitle the Debtor to any other or further notice or demand in
similar or other circumstances.
SECTION 6.3. CUMULATIVE REMEDIES; FAILURE OR DELAY. The rights and
remedies provided for under this Agreement are cumulative and are not exclusive
of any rights and remedies that may be available to the Secured Parties under
Applicable Law, the other Loan Documents or otherwise. No failure or delay on
the part of the Agent in the exercise of any power, right or remedy under this
Agreement shall impair such power, right or remedy or shall operate as a waiver
thereof, nor shall any single or partial exercise of any such power, right or
remedy preclude other or further exercise of such or any other power, right or
remedy.
SECTION 6.4. NOTICES, ETC. All notices and other communications
under this Agreement shall be in writing and shall be personally delivered or
sent by prepaid courier, by overnight, registered or certified mail (postage
prepaid) or by prepaid telecopy and shall be deemed given when received by the
intended recipient thereof. Unless otherwise specified in a
24
notice given in accordance with the foregoing provisions of this Section 6.4.,
notices and other communications shall be given to the parties hereto at their
respective addresses (or to their respective telex or telecopier numbers)
indicated on Schedule 1.1B. to the Credit Agreement.
SECTION 6.5. SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon and, subject to the next sentence, inure to the benefit of the Debtor and
the Agent and their respective permitted successors and assigns. The Debtor
shall not assign or transfer any of its rights or obligations hereunder without
the prior written consent of the Agent. The benefits of this Agreement shall
pass automatically with any assignment of the Secured Obligations (or any
portion thereof), to the extent of such assignment.
SECTION 6.6. PAYMENTS SET ASIDE. Notwithstanding anything to the
contrary herein contained, this Agreement, the Secured Obligations and the
Security Interest shall continue to be effective or be reinstated, as the case
may be, if at any time any payment, or any part thereof, of any or all of the
Secured Obligations is rescinded, invalidated, declared to be fraudulent or
preferential or otherwise required to be restored or returned by any Secured
Party in connection with any bankruptcy, reorganization or similar proceeding
involving the Debtor, any other party liable with respect to the Secured
Obligations or otherwise, if the proceeds of any Collateral are required to be
returned by such Secured Party under any such circumstances, or if any Secured
Party elects to return any such payment or proceeds or any part thereof in its
sole discretion, all as though such payment had not been made or such proceeds
not been received. Without limiting the generality of the foregoing, if prior
to any such rescission, invalidation, declaration, restoration or return, this
Agreement shall have been canceled or surrendered or the Security Interest or
any Collateral shall have been released or terminated in connection with such
cancellation or surrender, this Agreement and the Security Interest and such
Collateral shall be reinstated in full force and effect, and such prior
cancellation or surrender shall not diminish, discharge or otherwise affect the
obligations of the Debtor in respect of the amount of the affected payment or
application of proceeds, the Security Interest or such Collateral.
SECTION 6.7. CONTINUING SECURITY INTEREST; TERMINATION. This
Agreement shall create a continuing security interest in the Collateral and,
except as provided below, the Security Interest and all agreements,
representations and warranties made herein shall survive until, and this
Agreement shall terminate only upon, the indefeasible payment and performance in
full of the Secured Obligations. Any investigation at any time made by or on
behalf of the Secured Parties shall not diminish the right of the Secured
Parties to rely on any such agreements, representations or warranties herein.
Notwithstanding anything in this Agreement or Applicable Law to the
contrary, the agreements of the Debtor set forth in Sections 4.6.3., 6.1. and
6.11. shall survive the payment of all other Secured Obligations and the
termination of this Agreement. After termination of this Agreement, the Agent
shall, upon the request and at the expense of the Debtor, forthwith assign,
transfer and deliver to the Debtor or its order, against receipt and without
recourse to the Secured Parties, such of the Collateral as may be in possession
of the Agent and as shall not have been sold or otherwise applied pursuant to
the terms hereof, together with proper instruments
25
(including UCC termination statements on Form UCC-2 or such other form as may be
appropriate in any jurisdiction) acknowledging the termination of this
Agreement.
SECTION 6.8. WAIVER AND ESTOPPEL. Except as otherwise provided in
this Agreement, the Debtor hereby waives: (a) presentment, protest, notice of
dishonor, release, compromise, settlement, extension or renewal and any other
notice of or with respect to the Secured Obligations and hereby ratifies and
confirms whatever the Agent may do in this regard; (b) notice prior to taking
possession or control of any Collateral; (c) ANY BOND OR SECURITY THAT MIGHT BE
REQUIRED BY ANY COURT PRIOR TO ALLOWING THE AGENT TO EXERCISE ANY OF ITS RIGHTS,
POWERS OR REMEDIES; (d) the benefit of all valuation, appraisement, redemption
and exemption laws; (e) any rights to require marshaling of the Collateral upon
any sale or otherwise to direct the order in which the Collateral shall be sold;
(f) any set-off; and (g) any rights to require the Agent to proceed against any
Person, proceed against or exhaust any Collateral or any other security
interests or guaranties or pursue any other remedy in the Agent's power, or to
pursue any of such rights in any particular order or manner, and any defenses
arising by reason of any disability or defense of any Person.
SECTION 6.9. EXECUTION IN COUNTERPARTS. This Agreement may be
executed in any number of counterparts, each of which counterparts, when so
executed and delivered, shall be deemed to be an original and all of which
counterparts, taken together, shall constitute but one and the same Agreement.
This Agreement shall become effective upon the execution of a counterpart hereof
by each of the parties hereto.
SECTION 6.10. COMPLETE AGREEMENT. This Agreement, together with the
exhibits and schedules hereto and the other Loan Documents, is intended by the
parties as a final expression of their agreement regarding the subject matter
hereof and as a complete and exclusive statement of the terms and conditions of
such agreement.
SECTION 6.11. LIMITATION OF LIABILITY. No claim shall be made by the
Debtor against the Secured Parties or the Affiliates, directors, officers,
employees or agents of the Secured Parties for any special, indirect,
consequential or punitive damages in respect of any claim for breach of contract
or under any other theory of liability arising out of or related to the
transactions contemplated by this Agreement and the other Loan Documents, or any
act, omission or event occurring in connection therewith; and the Debtor hereby
waives, releases and agrees not to xxx upon any claim for any such damages,
whether or not accrued and whether or not known or suspected to exist in its
favor.
SECTION 0.1. WAIVER OF TRIAL BY JURY. THE DEBTOR AND THE SECURED
PARTIES WAIVE THE RIGHT TO A TRIAL BY JURY IN ANY ACTION UNDER THIS AGREEMENT OR
ANY ACTIN ARISING OUT OF THE TRANSACTIONS CONTEMPLATED HEREBY, REGARDLESS OF
WHICH PARTY INITIATES SUCH ACTION OR ACTIONS.
26
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed and delivered as of the date first set forth above.
DEBTOR:
INFORMIX SOFTWARE, INC., a Delaware
corporation
By: /s/ Xxxx-Xxxx Dexmier
-------------------------
Name: Xxxx-Xxxx Dexmier
-----------------------
Title: Executive VP and CFO
-----------------------
AGENT:
BANKBOSTON, N.A., a national banking
association
By: /s/ Xxxx X. Xxxxxxx
-------------------------
Name: Xxxx X. Xxxxxxx
-----------------------
Title: V.P.
-----------------------
27
SCHEDULE B-1
PLEDGED STOCK
100% of the stock of the following Subsidiaries is pledged by the Debtor
pursuant to the Senior Secured Credit Agreement dated December 31, 1997 by and
among the Debtor, Canadian Imperial Bank of Commerce, as Syndication Agent, and
the Secured Parties to the Agent for the ratable benefit of the Secured Parties:
Informix Credit Company, a Delaware corporation.
1
SCHEDULE X-0
XXXXXXX XXXX
Xxxx
0
XXXXXXXX X-0
PLEDGED INTERESTS
None
1
SCHEDULE 2.1.6.
NOTES RECEIVABLE
None
1
SCHEDULE 2.1.13.2.
DEPOSIT ACCOUNTS
1
SCHEDULE 2.1.13.2.
CASUALTY INSURANCE
1
SCHEDULE 2.1.13.5.
PATENTS, TRADEMARKS AND COPYRIGHTS
1. FEDERAL PATENT REGISTRATIONS.
PATENT REGISTRATION NO. REGISTRATION DATE
LOGICAL SCHEM TO ALLOW 5,701,453 12/23/97
ACCESS TO A RELATIONAL
DATABASE WITHOUT USING
KNOWLEDGE OF THE DATABASE
STRUCTURE
2. APPLICATIONS FOR FEDERAL REGISTRATION OF PATENTS.
PATENT SERIAL NO. FILING DATE
SEE SEPARATE SIDE LETTER
3. FEDERAL TRADEMARK AND SERVICE XXXX REGISTRATIONS.
TRADEMARK/SERVICE XXXX REGISTRATION NO. REGISTRATION DATE
---------------------- ---------------- -----------------
INFORMIX-NEWERA 2,049,448 04/01/97
VIEWPOINT 1,943,333 12/26/95
CO\PRINT 1,808,382 11/30/93
SUPERVIEW 1,838,367 05/31/94
GX 1,812,775 12/21/93
INFORMIX INSYNC SOFTWARE 1,741,690 12/22/92
PARTNERSHIPS UNLIMITED AND
DESIGN
OPENCASE 1,745,595 01/12/93
INFORMIXLINK 1,689,667 05/26/92
I AND DESIGN 1,622,254 11/13/90
PERFORM 1,674,833 02/11/92
WINGZ 1,679,189 03/17/92
INFORMIX 1,589,795 04/03/90
1
REGENCY SUPPORT 1,632,668 01/22/91
SMARTWARE 1,554,474 09/05/89
HYPERSCRIPT 1,526,668 02/28/89
WINGZ 1,654,193 08/20/91
INFORMIX 1,483,227 04/05/88
FILE-IT 1,385,789 03/11/86
INFORMIX 1,277,936 05/15/84
C-ISAM 1,354,741 08/13/85
SMARTWARE 1,127,009 11/27/79
DENTAGARD 701,806 07/26/60
4. APPLICATIONS FOR FEDERAL REGISTRATION OF TRADEMARKS AND SERVICE MARKS.
TRADEMARK/SERVICE XXXX SERIAL NO. FILING DATE
---------------------- ---------- -----------
IMAGINECARD 75/127267 07/28/96
NEWERA 74/532616 06/01/94
5. COPYRIGHT.
COPYRIGHT REGISTRATION NO. REGISTRATION DATE
--------- ---------------- -----------------
EVOLUTION OF THE HIGH TX4510490 04/01/97
PERFORMANCE DATABASE
INFORMIX-4GL BY EXAMPLE TX3967843 11/08/94
INFORMIX GUIDE TO SQL TXU662870 10/04/94
INFORMIX GUIDE TO SQL: TXU642564 10/04/94
REFERENCE
2
PDF PRINT TX3621640 06/22/93
FAST GRAPHS XXX000000 09/29/83
(MACHINE LEVEL CODE)
X.X.X (MACHINE CODE) TXU151123 09/14/83
INFORMIX SQL. TX2473823 07/25/88
THE SMART DATA MANAGER TX2157688 03/16/87
THE SMART SYSTEM DISK TX2157687 03/16/87
THE SMART SYSTEM DISK XX0000000 03/16/87
THE SMART WORD PROCESSOR, TX2123417 03/16/87
FRENCH VERSION
THE SMART SPREADSHEET, TX2123416 03/16/87
FRENCH VERSION
THE SMART DATA MANAGER, TX2123415 03/16/87
FRENCH VERSION
TH SMART WORD PROCESSOR, TX2123414 03/16/87
VERSION 3.0
THE SMART SPREADSHEET, TX2123413 03/16/87
VERSION 3.0
THE SMART DATA MANAGER, TX2123412 03/16/87
VERSION 3.0
THE SMART SYSTEM DISK, TX2123411 03/16/87
VERSION 3.0
THE SMART WORD PROCESSOR, TX2123410 03/16/87
VERSION 2.0
THE SMART SPREADSHEET, TX2123409 03/16/87
VERSION 2.0
THE SMART WORD PROCESSOR, TX2123408 03/16/87
VERSION 1.0
3
THE SMART SYSTEM DISK, TX2123407 03/16/87
VERSION 1.0
THE SMART DATA MANAGER, TX2123406 03/16/87
VERSION 1.0
THE SMART SPREADSHEET, TX2123405 03/16/87
VERSION 1.0
THE SMART WORD PROCESSOR XX0000000 07/23/86
THE SMART SPREADSHEET WITH TX1871678 07/23/86
GRAPHICS
THE SMART DATA MANAGER TX1871677 07/23/86
THE SMART SYSTEM MANUAL TX1869712 07/23/86
THE SMART SPREADSHEET WITH TX1820948 02/24/86
GRAPHICS
THE SMART WORD PROCESSOR TX1820947 02/24/86
THE SMART DATA MANAGER TX1820946 02/24/86
FAST GRAPHS TX1294612 11/23/83
X X X 111: TOTAL TX1103840 01/27/83
INFORMATION MANAGEMENT:
USER'S MANUAL
TOTAL INFORMATION XX0000000 05/07/82
MANAGEMENT, XXX 111:
USER'S MANUAL
X.X.X. USER'S MANUAL, TX499443 06/25/80
MBASIC VERSION
X.X.X. : TOTAL INFORMATION TX497727 04/17/80
MANAGEMENT: USER'S MANUAL
6. APPLICATIONS FOR COPYRIGHT REGISTRATION.
COPYRIGHT SERIAL NO. FILING DATE
4
SCHEDULE 3.2.
LOCATIONS AND NAMES
CHIEF EXECUTIVE OFFICE:
0000 Xxxxxxxx Xxxxx
Xxxxx Xxxx, XX 00000
OTHER PLACES OF BUSINESS (SUBSIDIARIES):
See attached Exhibit
CURRENT AND PRIOR NAMES INCLUDE:
Innovative Software
TAX IDENTIFICATION NUMBER: 00-0000000
1
SCHEDULE 3.8
CAPITALIZATION OF ISSUERS OF PLEDGED STOCK
1,000 shares of common stock of Informix Credit Company, a Delaware corporation
issued to Debtor.
1
SCHEDULE 3.9
CAPITALIZATION OF INTEREST ISSUERS
None
1
EXHIBIT 3.1.2.A
FORM OF NOTICE
OF SECURITY INTEREST IN
PATENTS AND TRADEMARKS
NOTICE IS HEREBY GIVEN that [insert name of Debtor], a ________ (the "DEBTOR")
with an office located at [insert address of Debtor], and [insert name of Agent]
(the "AGENT"), with an office located at [insert address of Agent], on behalf of
certain lenders (collectively, the "SECURED PARTIES"), have entered into a
Pledge and Security Agreement dated as of December, 1997 (the "SECURITY
AGREEMENT").
Pursuant to the Security Agreement, the Debtor has granted to the Agent, for the
equal and ratable benefit of the Secured Parties, a security interest in (a) the
registered patents, applications for registration of patents, and licenses of
registered patents listed in Schedule A hereto and (b) the registered trademarks
and service marks, applications for registration of trademarks and service
marks, and licenses of registered trademarks and service marks listed in
Schedule B hereto, together with the goodwill of the business symbolized
thereby, to secure the payment, performance and observance of the Secured
Obligations as defined in the Security Agreement.
The Commissioner of Patents and Trademarks is requested to record this
notice in its records.
Dated:
-----------------
[DEBTOR]
By:
----------------------------
Name:
--------------------------
Title:
-------------------------
1
SCHEDULE A
TO
NOTICE OF SECURITY INTEREST IN PATENTS AND TRADEMARKS
FROM
[INSERT NAME OF DEBTOR]
1. FEDERAL PATENT REGISTRATIONS.
PATENT REGISTRATION NO. REGISTRATION DATE
2. APPLICATIONS FOR FEDERAL REGISTRATION OF PATENTS.
PATENT SERIAL NO. FILING DATE
2
SCHEDULE B
TO
NOTICE OF SECURITY INTEREST IN PATENTS AND TRADEMARKS
FROM
[INSERT NAME OF DEBTOR]
1. FEDERAL TRADEMARK AND SERVICE XXXX REGISTRATIONS.
TRADEMARK/SERVICE XXXX REGISTRATION NO. REGISTRATION DATE
2. APPLICATIONS FOR FEDERAL REGISTRATION OF TRADEMARKS AND SERVICE MARKS.
TRADEMARK/SERVICE XXXX SERIAL NO. FILING DATE
3
State of
---------------- }
County of
----------------
On ______________DATE before me, NAME, TITLE OF OFFICER , personally
appeared NAME(S) OF SIGNERS ,
/ / personally known to me - OR - / / proved to me on the basis of satisfactory
evidence to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signature(s)
on the instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
Witness my hand and official seal.
--------------------
SIGNATURE OF NOTARY
4
EXHIBIT 3.1.2.B
FORM OF NOTICE
OF SECURITY INTEREST IN AND
COLLATERAL ASSIGNMENT OF COPYRIGHTS
NOTICE IS HEREBY GIVEN that [insert name of Debtor], a ________ (the
"DEBTOR") with an office located at [insert address of Debtor], and [insert name
of Agent] (the "AGENT"), with an office located at [insert address of Agent], on
behalf of certain lenders (collectively, the "SECURED PARTIES"), have entered
into a Pledge and Security Agreement dated as of December ___, 1997 (the
"SECURITY AGREEMENT") attached hereto as Exhibit A.
Pursuant to the Security Agreement, the Debtor has granted to the Agent,
for the equal and ratable benefit of the Secured Parties, a security interest in
(and by this instrument the Debtor does hereby confirm and grant to the Agent,
for the equal and ratable benefit of the Secured Parties, a security interest in
and collaterally assign to the Agent, for the equal and ratable benefit of the
Secured Parties, all of the Debtor's right, title and interest in and to: (i)
the copyrights and copyright registrations that are identified on Schedule A
hereto and herein incorporated by this reference (the "COPYRIGHTS"), (ii) the
applications for copyright registration which are identified on Schedule A
hereto and herein incorporated by this reference, together with any and all
copyright registrations issued with respect thereto, (iii) all actions for
infringement concerning the foregoing and (iv) all receivables arising out of
the foregoing, to secure the payment, performance and observance of the Secured
Obligations as defined in the Security Agreement.
Dated:
---------------
[DEBTOR]
By:
--------------------------
Name:
------------------------
Title:
-----------------------
1
SCHEDULE A
TO
NOTICE OF SECURITY INTEREST IN AND COLLATERAL ASSIGNMENT OF COPYRIGHTS BY
[INSERT NAME OF DEBTOR]
1. COPYRIGHT.
COPYRIGHT REGISTRATION NO. REGISTRATION DATE
2. APPLICATIONS FOR COPYRIGHT REGISTRATION.
COPYRIGHT SERIAL NO. FILING DATE
2
State of
---------------}
County of
--------------
On ______________ DATE before me, NAME, TITLE OF OFFICER , personally
appeared NAME(S) OF SIGNERS ,
/ / personally known to me - OR - / / proved to me on the basis of satisfactory
evidence to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signature(s)
on the instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
Witness my hand and official seal.
--------------------
SIGNATURE OF NOTARY
3
Exhibit A
[Attached Pledge and Security Agreement]
1
EXHIBIT 3.10.
CONSENT AND ACKNOWLEDGMENT
(PLEDGED DEBT)
TO: BANKBOSTON, N.A., as Agent
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
BANKBOSTON, N.A., as Agent
000 Xxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, Xxxxxxxxxx 00000
1. Pursuant to a PLEDGE AND SECURITY AGREEMENT dated as of December ___, 1997
(as amended from time to time, the "PLEDGE AND SECURITY AGREEMENT") by and
between Informix Software, Inc., a Delaware corporation (the "DEBTOR"), and
BankBoston, N.A., a national banking association, acting through its agency, as
collateral agent and representative for the institutions that now or in the
future are parties to the Credit Agreement described therein (in such capacity
BankBoston or any successor in such capacity is referred to herein as the
"AGENT"), the Debtor has granted a security interest in, among other things,
certain indebtedness owed by the undersigned to the Debtor (together with all
notes, credit agreements, security agreements, pledge agreements, mortgages,
deeds of trust and other security and loan documents evidencing or securing such
indebtedness and all Liens, rights, remedies, powers, remedies and privileges of
the Debtor relating thereto, the "COLLATERAL").
The undersigned hereby:
1. Consents to the security interest of the Agent in the Collateral.
2. Agrees that upon receipt by the undersigned of notice from the Agent that
an Event of Default exists:
(a) the undersigned shall pay and deliver all cash or other property from
time to time payable or otherwise distributable in respect of the Collateral
directly to the Agent, without any defense, setoff, recoupment or deduction of
any kind; and
(b) the undersigned will deliver directly to the Agent any notes and other
instruments executed after the date hereof from time to time evidencing any
indebtedness of the undersigned to the Debtor.
3. Confirms that the Collateral is in full force and effect on the date hereof
and agrees that the Collateral will not be amended or otherwise modified without
the prior written consent of the Agent.
1
4. Expressly waives as against the Secured Parties any setoff or other defense
against payment and performance by the undersigned under the Collateral and any
claim against the Secured Parties, whether arising under the Collateral or
otherwise.
All terms with initial capital letters not otherwise defined herein have the
meanings set forth in the Pledge and Security Agreement.
IN WITNESS WHEREOF, the undersigned has executed this Consent and Acknowledgment
as of __________, 199_.
_______________________
2
