Exhibit 10.15
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WAIVER, CONSENT AND AGREEMENT
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This WAIVER, CONSENT AND AGREEMENT (this "Agreement") is entered into
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as of December 31, 2001, by and between FOOTHILL CAPITAL CORPORATION, a
California corporation ("Foothill"), on the one hand and MICROSTRATEGY
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INCORPORATED, a Delaware corporation ("Parent"), MICROSTRATEGY SERVICES
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CORPORATION, a Delaware corporation ("Borrower"), Xxxxxxxx.xxx Incorporated, a
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Delaware corporation ("Xxxxxxxx.xxx"), and Microstrategy Capital Corporation, a
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Delaware corporation ("MCC"), on the other hand, with reference to the
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following:
A. Foothill, Parent, and Borrower heretofore have entered into that
certain Amended and Restated Loan and Security Agreement, dated as of
June 14, 2001, as amended by that certain Consent and Amendment Number
One to Amended and Restated Loan and Security Agreement, entered into
as of August 29, 2001 (as the same may be further amended, restated,
supplemented, or otherwise modified from time to time, the "Loan
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Agreement"), pursuant to which Foothill has made certain loans and
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financial accommodations available to Borrower.
B. Xxxxxxxx.xxx and MCC are Subsidiaries of Parent and Guarantors to the
Loan Agreement.
C. Parent, Borrower, Xxxxxxxx.xxx and MCC have made the following
requests of Foothill (the "Requested Transactions"):
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(i) That Parent be permitted to transfer the assets described on
Schedule A (the "MCC Transferred Assets") to MCC;
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(ii) That MCC be permitted to sell the MCC Transferred Assets and
distribute the proceeds therefrom to Parent;
(iii) That MCC be permitted to change its name to Microstrategy
Administration Corporation; and
(iv) That Xxxxxxxx.xxx be permitted to transfer the assets described
on Schedule B (the "Xxxxxxxx.xxx Transferred Assets") to Parent.
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D. Subject to the terms and conditions contained herein, Foothill is
willing to waive the provisions of the Loan Agreement and applicable
Loan Documents for which the above Requested Transactions would
prohibit or violate so long as the Requested Transactions are
consummated in accordance with the terms and conditions set forth
herein.
E. Terms used herein without definitions shall have the meanings ascribed
to them in the Loan Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants herein contained, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereby
agree as follows:
1. Agreement.
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(a) Foothill hereby waives the provisions of the Loan Agreement and
applicable Loan Documents that would prohibit or that would be violated by
the transfer of the MCC Transferred Assets from Parent to MCC, on the
following conditions:
1. the MCC Transferred Assets are transferred directly to MCC and are
not transferred to a location other than a location pursuant to
which Lender and the applicable landlord have entered into a
Collateral Access Agreement applicable to the MCC Transferred
Assets;
2. to the extent requested, MCC will consent to the filing of UCC
financing statements requested by Foothill relating to the MCC
Transferred Assets; and
3. any further sales or other dispositions of the MCC Transferred
Assets by MCC are done in accordance with the provisions of the
Loan Agreement as further modified by paragraph (b) below.
(b) Foothill hereby waives the provisions of the Loan Agreement and
applicable Loan Documents that would prohibit MCC from or would be violated
by MCC selling or otherwise disposing the MCC Transferred Assets, on the
following conditions:
1. the MCC Transferred Assets are not further sold or transferred to
an Affiliate of Parent without the express written consent of
Foothill;
2. all further sales or other dispositions of the MCC Transferred
Assets (including a transfer to or for the benefit of a company
leasing goods to any Borrower or any Guarantor in exchange for
title to goods leased to such Borrower or Guarantor) are conducted
on an arm's length basis; and
3. 100% of the cash proceeds (less reasonable and customary selling
expenses) from the sales of the MCC Transferred Assets are
deposited directly to an account which is subject to a Control
Agreement.
In connection with the sale or other disposition of all or any
portion of the MCC Transferred Assets in accordance with this clause (b),
Foothill shall promptly release any and all security interests in or liens on
such MCC Transferred Assets so sold or disposed of, and shall, upon request of
MCC or any such buyer (at Borrower's expense), provide MCC and such buyer with
such documentation as they may reasonably request to reflect and confirm the
release and termination of Foothill's security interests in and liens on such
MCC Transferred Assets.
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(c) Foothill hereby waives the provisions of the Loan Agreement and
applicable Loan Documents that would prohibit MCC from or would be violated
by MCC changing its name to Microstrategy Administration Corporation
(including any provisions requiring prior notice of such change in name).
MCC hereby consents to the filing of UCC financing statements requested by
Foothill relating to such name change and agrees to deliver to Foothill a
written notice attaching a copy of the certificate of amendment relating to
such name change within 2 Business Days of the filing thereof; and
(d) Foothill hereby waives the provisions of the Loan Agreement and
applicable Loan Documents that would prohibit or that would be violated by
the transfer of the Xxxxxxxx.xxx Transferred Assets from Xxxxxxxx.xxx to
Parent, on the following conditions:
1. the Xxxxxxxx.xxx Transferred Assets are transferred directly to
Parent and are not transferred to a location other than a location
pursuant to which Lender and the applicable landlord have entered
into a Collateral Access Agreement applicable to the Xxxxxxxx.xxx
Transferred Assets;
2. all future transfers, sales or other dispositions of the
Xxxxxxxx.xxx Transferred Assets, following the initial transfer to
Parent, are done in accordance with the terms and conditions of
the Loan Agreement; and
3. to the extent requested, Parent will consent to the filing of UCC
financing statements requested by Foothill relating to the
Xxxxxxxx.xxx Transferred Assets.
2. Conditions Precedent to Agreement. The satisfaction of each of the
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following, unless waived or deferred by Foothill in its sole discretion, shall
constitute conditions precedent to the effectiveness of this Agreement and each
and every provision hereof:
(a) Foothill shall have received this Agreement, duly executed by
the parties hereto, and the same shall be in full force and effect;
(b) Foothill shall have received (1) a fully executed Amendment
Number One to Trademark Security Agreement and (2) additional fully
executed Patent Security Agreements in form and substance satisfactory to
Foothill;
(c) No Default or Event of Default shall have occurred and be
continuing on the date hereof, or shall result from the consummation of the
transactions contemplated herein;
(d) Each of the representations and warranties contained in the Loan
Agreement shall be true and correct in all respects on and as of the
effectiveness hereof (as modified by the revised Exhibits and Schedules
attached hereto), as though made on and as of such date except for such
representations or warranties that are made expressly as of an earlier
date;
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(e) No injunction, writ, restraining order, or other order of any
nature prohibiting, directly or indirectly, the consummation of the
transactions contemplated herein shall have been issued and remain in force
by any governmental authority against any party hereto; and
(f) Foothill shall have received all expenses and costs incurred by
Foothill in entering into this Agreement, including attorney's fees.
3. Representations and Warranties. Borrower, Xxxxxxxx.xxx, MCC and Parent
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each hereby represents and warrants to Foothill that:
(a) the execution, delivery, and performance of this Agreement are
within its corporate powers, has been duly authorized by all necessary
corporate action, and are not in contravention of any law, rule, or
regulation, or any order, judgment, decree, writ, injunction, or award of
any arbitrator, court, or governmental authority, or of the terms of its
charter or bylaws, or of any contract or undertaking to which it is a party
or by which any of its properties may be bound or affected;
(b) this Agreement constitutes a legal, valid, and binding
obligation, enforceable against it in accordance with its terms;
(c) this Agreement has been duly executed and delivered by each such
party; and
(d) the MCC Transferred Assets are not currently being used in the
operation of Parent's business and the Xxxxxxxx.xxx Transferred Assets are
not currently being used in the operation of Xxxxxxxx.xxx's business.
4. Miscellaneous.
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(a) Counterparts; Telefacsimile Execution; Effectiveness. This
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Agreement may be executed in any number of counterparts, each of which,
when so executed and delivered, shall be deemed an original. All of such
counterparts shall constitute but one and the same instrument. Delivery of
an executed counterpart of this Agreement by telefacsimile shall be equally
effective as delivery of an original executed counterpart of this
Agreement. Any party delivering an executed counterpart of this Agreement
by telefacsimile also shall deliver a manually executed counterpart of this
Agreement but the failure to deliver a manually executed counterpart shall
not affect the validity, enforceability, and binding effect of this
Agreement.
(b) Choice of Law and Venue; Jury Trial Waiver. This Agreement shall
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be governed by and construed in accordance with the laws of the State of
California. The parties hereto agree that the provisions of Section 13 of
the Loan Agreement are hereby incorporated herein by this reference mutatis
mutandis.
(c) Limited Agreement. The waivers, consents, and modifications
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herein are limited to the specifics hereof, shall not apply with respect to
any facts or occurrences other than those on which the same are based,
shall not excuse future non-compliance
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with the Loan Agreement, and except as expressly set forth herein, shall
not operate as a waiver or an amendment of any right, power or remedy of
Foothill, nor as a consent to any further or other matter, under the Loan
Agreement.
(d) Loan Document. This Agreement shall be considered a Loan
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Document for all purposes under the Loan Agreement, including Section 8.2
thereof.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the date first written above.
MICROSTRATEGY INCORPORATED,
a Delaware corporation
By: /s/ XXXX X. XXXXX
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Title: President and Chief Financial
Officer
MICROSTRATEGY SERVICES CORPORATION,
a Delaware corporation
By: /s/ XXXX X. XXXXX
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Title: Vice President and Treasurer
XXXXXXXX.XXX INCORPORATED,
a Delaware corporation
By: /s/ XXXX X. XXXXX
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Title: Chief Financial Officer
MICROSTRATEGY CAPITAL CORPORATION,
a Delaware corporation
By: /s/ XXXX X. XXXXX
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Title: Treasurer
FOOTHILL CAPITAL CORPORATION,
a California corporation
By: /s/ XXXX XXXXXX
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Title: Vice President
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