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EXHIBIT 10.26
TERM NOTE AGREEMENT
Date: January 22, 2001
800 Travel Systems, a Delaware corporation (COMPANY), and Sabre Inc., a
Delaware corporation (SABRE), are parties to the CRS Contract. Sabre may from
time to time be obligated to make Incentive Payments to Company under the CRS
Contract. Company has requested that Sabre make advances to Company for
Company's lawful working capital purposes, with such advances to be secured by
the Sabre Incentive Payments and other Sabre Collateral. Sabre has advised
Company that Sabre is willing to make advances to Company upon the terms and
subject to the conditions set forth in this agreement (this AGREEMENT).
Therefore, Company and Sabre agree as follows:
1. Definitions. Capitalized terms used in this Agreement have the
meanings provided on SCHEDULE 1 to this Agreement.
2. Term Note.
(a) Advance. Subject to the terms and conditions of this
Agreement, Sabre shall make up to three (3) advances to Company. The
total of the advances shall not exceed $1,800,000. All advances must be
made within 1 year of the start of this contract. Company must give
Sabre at least 5 business days prior written notice of its request for
an Advance, and each Advance must be in the minimum amount of $100,000.
No further advances may be taken on this Term Note other than
the advances provided for herein. The term of the Term Note will be 60
months from the time of the latest advance, at that time all remaining
principal and interest will be due.
(b) Evidence of Obligation. The Term Note principal and
interest owed to Sabre shall be evidenced by accounts or records
maintained by Sabre, and provided to the Company on a monthly basis.
Such Term Note accounts or records shall be conclusive evidence (absent
manifest error) of the amount of the Term Note balance, the interest
accrued thereon and principal payments applied thereto. Any failure to
so record or any error in doing so shall not, however, limit or
otherwise affect the obligation of Company under the Sabre Documents to
pay any amount owing with respect to this Agreement.
3. Repayment.
(a) Interest. Interest shall accrue on the unpaid principal amount
of the Term Note, from the date of Advance until paid in full, at a
rate per annum equal to the Prime Rate plus 2.5 %. Each change in the
Prime Rate shall become effective without prior notice to Company
automatically as of the opening of business on the date of such change
in the Prime Rate. Additionally, past-due principal and interest shall
bear interest at a rate per annum equal to the Prime Rate plus 8%. The
accrual and payment of interest shall in all respects be subject to the
limits of applicable law, as more fully described in SECTION 10(B).
(b) Payments.
(i) Company shall pay the amount of unpaid principal of, and
accrued interest on, the Term Note in 60 equal consecutive monthly installments,
commencing in the month following the month of the Loan Date. Each such payment
shall be made on the Payment Date. Loan payments will be offset against any
payments
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Sabre is obligated to make to the Company, per SECTION 3(D). If the Sabre
Incentive Payment is greater than the payment, then no additional amounts are
due Sabre regarding this Term Note. If deemed appropriate by Sabre, Sabre may
(by notice to Company) recalculate the amount of each monthly installment to
reflect changes in the Prime Rate after the Loan Date or changes in the
principal due to advances that were made.
(ii) Interest shall be calculated on the basis of
actual number of days (including the first day but excluding
the last) elapsed, but computed as if each calendar year
consisted of 365 days, subject to the provisions of SECTION
10(B). If a Sabre Incentive Payment is due during any calendar
month, interest shall not accrue on the portion equal to the
amount of that Incentive Payment from the first day of that
calendar month until the Payment Date.
(iii) In addition, and without limiting Company's
obligations under this Agreement, Company and Sabre shall make
all payments required under the CRS Contract.
(c) General Payment Provisions. All payments (including
prepayments) under this Agreement (i) shall be payable in immediately
available funds in United States Dollars no later than 1:00 p.m. (Fort
Worth, Texas time) on the date when due, and (ii) shall be made free
and clear of, and without deduction or withholding for or on account
of, any Taxes. If any payment hereunder becomes due and payable on a
day other than a business day, in Fort Worth, Texas, the maturity of
such payment shall be extended to the next succeeding business day (and
with respect to payments of principal, interest thereon shall be
payable at the then applicable rate during such extension). Except as
expressly provided hereunder, all payments shall be applied first to
accrued interest, and then to unpaid principal of the Term Note.
(d) Offset Payments. Until the Term Note, along with
accrued interest and expenses, is paid in full, the amount of any
payment that Sabre is obligated to make to Company shall be set off
against any amounts due and owing under this Term Note Agreement.
COMPANY'S OBLIGATIONS UNDER THIS AGREEMENT ARE NOT, HOWEVER,
CONDITIONED UPON THE EXISTENCE OR THE AMOUNT OF INCENTIVE PAYMENTS AND
SHALL SURVIVE THE TERMINATION OF THE CRS CONTRACT. Without limiting the
foregoing, if the amount payable under this Agreement at any time
exceeds the Incentive Payment payable at such time, then the excess
amount payable under this Agreement shall be due and payable in
accordance with the terms of this Agreement. Notwithstanding any
provisions to the contrary, the right of Company to receive an
Incentive Payment earned for any 30-day period shall not accrue until
Sabre determines the amount of such Incentive Payment and the Payment
Date with respect to such Incentive Payment.
(e) Prepayments. Company may at any time and from time to
time prepay the Term Note and accrued interest, in whole or in part,
without premium or penalty. All prepayments shall be accompanied by
accrued and unpaid interest to the date of such prepayment on the
amount prepaid.
4. Collateral. In addition to Sabre's rights of offset, as
described in SECTION 3(D) of this Agreement, the Term Note shall be secured by a
perfected, first priority, security interest in the Sabre Collateral, pursuant
to the security agreement supplement attached as EXHIBIT A to this Agreement.
5. Conditions Precedent. The obligation of Sabre to make any
Advance to Company is subject to the conditions precedent that, as of the date
of that Advance: (a) Sabre has received (on the date hereof) duly executed
copies of each document listed on SCHEDULE 5 to this Agreement, in form and
substance acceptable to Sabre and its legal counsel; (b) all representations and
warranties made by Company to Sabre are true and correct, as if made on such
date, and no condition or event exists which constitutes an Event of Default, or
which, with the lapse of time and/or giving of notice, would constitute an Event
of Default; (c) the requirements OF SECTION 2 have been satisfied; (d) the CRS
Contract has not expired or been terminated and no notice of termination has
been given thereunder; and (e) Company has
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furnished to Sabre a certificate executed by the chief financial officer or the
chief executive officer of Company, in the form of EXHIBIT B to this Agreement.
6. Representations and Warranties. In order to induce Sabre to
make the Term Note, Company represents and warrants to Sabre that:
(a) Company is a [corporation,] duly organized and in
good standing, under the laws of the State of Delaware and has the
power to own its property and to carry on its business in each
jurisdiction in which Company operates;
(b) Company has full power and authority to enter into
this Agreement, to make the borrowing hereunder, to execute and deliver
the Sabre Documents and to incur the obligations provided for in the
Sabre Documents, all of which have been duly authorized by all
necessary corporate action;
(c) The Sabre Documents are the legal and binding
obligations of Company, enforceable in accordance with their respective
terms, except as limited by bankruptcy, insolvency or other laws of
general application relating to the enforcement of creditors' rights
and general principle's of equity;
(d) To the best of the company's knowledge the execution,
delivery and performance of this Agreement and the other Sabre
Documents will not contravene or conflict with any provision of law,
statute or regulation to which Company is subject or any judgment,
license, order or permit applicable to Company or any indenture, credit
agreement, trust or other instrument to which Company may be subject;
no consent, approval, authorization or order of any court, governmental
authority or third party is required in connection with the execution
and delivery by Company of this Agreement or any of the other Sabre
Documents or to consummate the transactions contemplated herein or
therein except as contemplated in the Sabre documents;
(e) Financial Statements of Company available through the
SEC Xxxxx System, for the period's ending 12/31/99 and 9/30/00 are true
and correct, fairly present the financial condition of Company in all
material respects and have been prepared in accordance with GAAP, and
no material adverse changes have occurred in the financial condition or
business of Company since the date of the most recent financial
statements; Company owns all of the assets reflected on its most recent
balance sheet free and clear of all liens, security interests or other
encumbrances, except as previously disclosed in writing to Sabre;
(f) Except to the extent presented in its financial
statements and SEC filings, no litigation, investigation, or
governmental proceeding is pending, or, to the knowledge of any of
Company's officers, threatened against or affecting Company, which may
reasonably be expected to result in any material adverse change in
Company's business, properties or operations;
(g) The principal office, chief executive office and
principal place of business of Company is in Tampa, Florida;
(h) To its best knowledge all Taxes required to be paid
by Company have in fact been paid; and
(i) To its best knowledge, the Company is not in
violation of any law, ordinance, governmental rule or regulation to
which it is subject, and is not in default under any material
agreement, contract or understanding to which it is a party.
7. Certain Covenants. Until payment in full of the Term Note and
all other obligations and liabilities of Company hereunder, Company covenants
that (unless Sabre otherwise consents in writing) it shall:
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(a) Promptly pay to Sabre all obligations under and in
accordance with the terms of this Agreement;
(b) Promptly perform all of Company's obligations under
the CRS Contract and under all other agreements with Sabre;
(c) Conduct its business in an orderly and efficient
manner consistent with good business practices and in accordance with
all valid regulations, laws and orders of any governmental authority
and will act in accordance with customary industry standards in
maintaining and operating its assets, properties and investments;
(d) Maintain complete and accurate books and records of
its transactions in accordance with GAAP, and give Sabre access during
business hours to all books, records and documents that substantiate
its financial statements of the Company or that are relevant to large
financial impacts on the Company and permit Sabre to make and take away
copies thereof;
(e) Promptly notify Sabre of (i) any material adverse
change in its financial condition or business; (ii) any default under
any material agreement, contract or other instrument to which Company
is a party or by which any of its properties are bound, or any
acceleration of any maturity of any indebtedness owing by Company,
(iii) any material adverse claim against or affecting Company or any of
its properties; (iv) any litigation, or any claim or controversy which
might become the subject of litigation, against Company or affecting
any of Company's property, if such litigation or potential litigation
might, in the event of an unfavorable outcome, have a material adverse
effect on Company's financial condition or business or might cause an
Event of Default; and (v) any condition or event constituting an Event
of Default or event which, with the lapse of time and/or giving of
notice would constitute an Event of Default;
(f) Promptly pay all lawful claims, whether for Taxes,
labor, materials or otherwise, which might or could, if unpaid, become
a lien or charge on any property or assets of Company, unless and to
the extent only that the same are being contested in good faith by
appropriate proceedings and reserves have been established therefor;
(g) Maintain on its properties and operations insurance
of responsible and reputable companies in such amounts and covering
such risks as is prudent and is usually carried by companies engaged in
businesses similar to that of Company; Company shall furnish Sabre, on
request, with certified copies of insurance policies or other
appropriate evidence of compliance with the foregoing covenant;
(h) Preserve and maintain all licenses, privileges,
franchises, certificates and the like necessary for the operation of
its business;
(i) Comply with all covenants set forth on SCHEDULE 7(I)
to this Agreement, and (i) in all covenants required of any current or
future primary lender, as if such covenants were set forth in this
Agreement, and without regard to amendments, waivers, or terminations
of such covenants after the date hereof; and provide (and request that
such lender provide) to Sabre prompt notice of any failure by Company
to comply with such covenants. Additionally, Company shall:
(i) Utilizing the SEC Xxxxx System, make
available to Sabre as soon as available and in any event
within 45 days after the end of each quarterly fiscal period
(except the last) of each fiscal year of Company, copies of
the balance sheet of Company as of the end of such fiscal
period, and statements of income and retained earnings and
changes in cash flow of Company for that quarterly fiscal
period and for the portion of the fiscal year ending with such
period, all in reasonable detail, and certified by the chief
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financial officer of Company as being true and correct and as
having been prepared in accordance with GAAP conformed for SEC
regulations, subject to year-end adjustments; and
(ii) Utilizing the SEC Xxxxx System, make
available to Sabre as soon as available and in any event
within 90 days after the close of each fiscal year of Company,
copies of the balance sheet of Company as of the close of such
fiscal year, and statements of income and retained earnings
and changes in cash flow of Company for such fiscal year, in
each case setting forth in comparative form the figures for
the preceding fiscal year, all in reasonable detail and
accompanied by an opinion thereon (which shall not be
qualified by reason of any limitation imposed by Company) of
independent public accountants of recognized national
standings selected by Company, to the effect that such
financial statements have been prepared in accordance with
GAAP conformed for SEC regulations (except for changes in
which such accountants concur); and
(iii) If, as of the last day of a quarterly fiscal
period of a fiscal year of Company, the Payment/Incentive
Ratio exceeds 0.75, then furnish to Sabre as soon as available
and in any event within 45 days after the end of such
quarterly fiscal period, a certificate executed by the chief
financial officer or chief executive officer of Company in the
form of EXHIBIT B to this Agreement;
(j) Not mortgage, assign, encumber, or grant a security
interest in any of the Sabre Collateral, except to Sabre (provided,
however, that the foregoing shall not apply to inchoate liens for taxes
which are not delinquent or which are being contested in good faith and
liens resulting from deposits to secure the payments of workmen's
compensation or social security or to secure the performance of bids or
contracts in the ordinary course of business).
8. Default. An Event of Default shall exist if any one or more of
the following events (individually, an EVENT OF DEFAULT and collectively, EVENTS
OF Default) shall occur:
(a) Company shall fail to pay when due any principal of,
or interest on, the Term Note or any other fee or payment due under any
of the Sabre Documents, which remains unpaid for a period of thirty
(30) days from Company's receipt of written notice from Sabre advising
of the late payment;
(b) Company shall fail to perform any of its material
obligations under the CRS Contract or any other agreement with Sabre;
(c) Any material representation or warranty made in any
of the Sabre Documents shall prove to be untrue or inaccurate in any
respect as of the date on which such representation or warranty is
made;
(d) Default shall occur in the performance of any of the
covenants or agreements of Company contained in any of the Sabre
Documents;
(e) Any of the Sabre Documents ceases to be legal, valid,
binding agreements enforceable against any party executing the same, is
terminated or becomes or is declared ineffective or inoperative, or
ceases to give or provide the respective liens, security interests,
rights, titles, interests, remedies, powers or privileges intended to
be created thereby;
(f) Any of Sabre's liens, mortgages or security interests
in any of the Sabre Collateral becomes unenforceable, or ceases to be
first priority liens, mortgages or security interests (provided,
however, that the foregoing shall not apply to inchoate liens for taxes
which
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are not delinquent or which are being contested in good faith and liens
resulting from deposits to secure the payments of workmen's
compensation or social security or to secure the performance of bids or
contracts in the ordinary course of business);
(g) Company shall voluntarily or involuntarily become the
subject of a bankruptcy, insolvency or receivership proceeding or case
which is not terminated within 30 days
(h) Company shall liquidate, dissolve, reorganize, or
sell all or substantially all of its assets;
(i) A Change of Control shall occur;
(j) Company shall default in the payment of any material
indebtedness of Company or in the performance of any of Company's
material obligations and such default shall continue for more than any
applicable period of grace;
(k) Any final judgment(s) for the payment of money in
excess of the sum of $500,000 in the aggregate shall be rendered
against Company and such judgment(s) shall not be satisfied or
discharged at least ten days prior to the date on which any of
Company's assets could be lawfully sold to satisfy such judgment(s);
(l) Termination of the CRS Contract, other than at the
scheduled termination date or as a result of the material breach of
Sabre; or
(m) The Payment/Incentive Ratio exceeds 1.0.
9. Remedies Upon Event of Default. If an Event of Default shall
have occurred and be continuing, then Sabre at its option may (i) declare the
principal of, and all interest then accrued on, the Term Note and any other
liabilities of Company to Sabre to be forthwith due and payable, whereupon the
same shall forthwith become due and payable without notice, presentment, demand,
protest, notice of intention to accelerate, notice of acceleration, or other
notice of any kind, all of which Company hereby expressly waives, anything
contained herein to the contrary notwithstanding, (iii) increase the interest
rate which accrues on the unpaid principal of the Term Note, subject to SECTION
10(B), to a rate per annum up to the Prime Rate plus 8%, (iv) reduce any claim
to judgment, and/or (v) without notice of default or demand, pursue and enforce
any of Sabre's rights and remedies under the Sabre Documents or otherwise
provided under or pursuant to any applicable law or agreement.
9. Miscellaneous.
(a) General. Generally, except as otherwise provided
herein, the notice, arbitration, governing law, entireties, and
severability provisions of the CRS Contract shall apply to this
Agreement and its enforcement and interpretation.
(b) Maximum Interest Rate. Regardless of any provisions
contained in this Agreement, the Term Note or in any of the other Sabre
Documents, Sabre shall never be deemed to have contracted for or be
entitled to receive, collect or apply as interest (whether termed
interest in the Sabre Documents or deemed to be interest by judicial
determination or operation of law) on the Term Note, any amount in
excess of the maximum rate of interest permitted to be charged by
applicable law, and, in the event Sabre ever receives, collects or
applies as interest any such excess, such amount which would be
excessive interest shall be deemed to be a partial prepayment of
principal and treated hereunder as such, and, if the principal balance
of the Term Note is paid in full, any remaining excess shall forthwith
be paid to Company. In determining whether or not the interest paid or
payable under any specific contingency exceeds the highest lawful rate,
Company, and Sabre shall, to the maximum extent permitted under
applicable law, (i) characterize any non-principal payment (other than
payments which are expressly designated as
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interest payments hereunder) as an expense, fee, or premium, rather
than as interest, (ii) exclude voluntary prepayments and the effect
thereof, and (iii) spread the total amount of interest throughout the
entire contemplated term of the Term Note so that the interest rate is
uniform throughout such term.
(c) Parties Bound. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective
successors, assigns and legal representatives; provided, however, that
Company may not, without the prior written consent of Sabre, assign any
rights, powers, duties or obligations hereunder.
(d) Expenses. Company will promptly pay all reasonable
costs, fees and expenses paid or incurred by Sabre incident to this
Agreement or incident to the collection of the Term Note hereunder
(including the fees and expenses of counsel to Sabre).
(e) Subsidiaries. For purposes of the representations,
covenants and defaults described in SECTIONS 6 and 7 above (not
including Sections 6(a) through (c), 6(g) and Schedule 7i), references
to COMPANY shall include Company and each of its present and future
direct and indirect subsidiaries.
(f) Indemnity. Company shall indemnify Sabre, its
affiliates, and their respective directors, officers, employees, and
agents against all third party liabilities, losses, claims, expenses
and costs resulting from or relating to the execution, delivery,
enforcement, performance and administration of this Agreement and the
Sabre Documents.
THIS WRITTEN TERM NOTE AGREEMENT REPRESENTS THE FINAL AGREEMENT BETWEEN
THE PARTIES AND MAY NOT BE CONTRADICTED OR PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT
ORAL AGREEMENT OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES [WITH REGARD
TO THE SUBJECT MATTER OF THIS AGREEMENT].
COMPANY:
800 TRAVEL SYSTEMS
By
-------------------------------------------
Name
---------------------------------------
Title
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ACCEPTED:
Sabre Inc.
By
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Name
---------------------------------------
Title
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SCHEDULE 1 TO TERM NOTE AGREEMENT
DEFINED TERMS
ADVANCE means any amount disbursed by Sabre to Company under this Term
Note Agreement or by Sabre in accordance with, and to satisfy the obligations of
Company under, this Term Note Agreement.
CHANGE IN CONTROL means the sale, pledge, or other transfer of an
ownership interest in Company representing more than 35% of the power to elect
directors or members of a similar governing body.
CRS CONTRACT means the Sabre Subscriber Agreement dated December 1,
2001; as it may be amended or restated, between Company and Sabre.
EVENT OF DEFAULT is defined in SECTION 8 of this Agreement.
GAAP means generally accepted accounting principles, consistently
applied.
SABRE INCENTIVE PAYMENTS means regularly recurring booking incentives,
including the Yearly Volume Threshold Incentive, to be paid or credited to
Company monthly under the CRS Contract (excluding CPBA incentives,anniversary
cash payments, cashable lines of credit, and conversion incentives), net of
amounts paid or owed by Company on recovery of equipment purchases and optional
upgrades and services.
PAYMENT DATE means the date in each month that any Incentive Payment is
paid and if no Incentive Payment is paid, then the later of the last day of that
month or fourteen (14) days after written notice has been provided by Sabre to
Company that the Incentive Payment will not cover the Loan Payment and that a
separate payment will be due.
PAYMENT/INCENTIVE RATIO means, as of any date of calculation, the ratio
of (a) the next month's payment of the Loan to (b) the average monthly Incentive
Payments to Company under the CRS Contract during the previous six-month period.
PRIME RATE means the variable rate of interest established from time to
time by Bank of America, N.A. (or its successor) as its prime rate and set by
that bank as a general reference rate of interest charged by that bank.
TERMINATION DATE means the later of 60 months from last advance or
January 30, 2006 (60 months from signing).
SEC means the Securities and Exchange Commission.
SABRE COLLATERAL means collectively all of the Collateral defined in
the security agreement supplement, and includes without limitation all accounts
receivable, payments and obligations now or hereafter owing to Company by Sabre
or any of its affiliates, the CRS Contract, and all Incentive Payments.
SABRE DOCUMENTS means this Agreement, the documents listed on SCHEDULE
5 to this Agreement, the CRS Contract, and all other written supplements and
documents now or hereafter executed by Company to or for the benefit of Sabre
pursuant to or in connection with any of the foregoing, and all amendments and
restatements thereof.
TAXES means any present or future taxes, duties, deductions,
withholdings, and other charges from time to time imposed by any taxing agency
or other governmental authority, excluding taxes on income of Sabre.
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TERM NOTE means the cumulative value of the advances made to the
Company, which will not be more than $1,800,000, under this contract by Sabre
FIXED CHARGES means, for Company, for any accounting period: (i)
interest expense and principal payments on all outstanding indebtedness, and
(ii) operating lease expenses.
INTANGIBLE ASSETS means assets that are (i) deferred assets, other than
prepaid insurance and prepaid taxes, (ii) patents, copyrights, trademarks,
tradenames, franchises, goodwill, experimental expenses and other similar assets
which would be classified as intangible assets on a balance sheet, and (iii)
unamortized debt discount and expense.
NET INCOME means, for any period, the net earnings (or loss) after
taxes of Company for such period determined in accordance with GAAP.
TANGIBLE NET WORTH means the total shareholders' equity of Company,
less the aggregate book value of Intangible Assets.
LOAN DATE The date that the first advance is provided under the Term
Note Agreement.
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SCHEDULE 5 TO TERM NOTE AGREEMENT
CONDITIONS PRECEDENT TO INITIAL ADVANCE
10. Certificate of a duly authorized officer of Company, certifying the
incumbency of officers signing this Agreement, and the accuracy of each
of the following (which shall be attached to the certificate):
(a) Resolutions of the Board of Directors of Company,
approving the execution, delivery and performance of this Agreement and
other Sabre Documents;
(b) Articles of Incorporation of Company; and
(c) Bylaws of Company.
2. If requested by Sabre, an opinion of counsel for the Company
subject to customary qualifications and exceptions for similar lending
transactions, in form and substance reasonably satisfactory to Sabre.
3. Evidence of the existence and good standing of Company in the
jurisdiction of its incorporation/organization.
11. Financing statements, duly executed by the Company, in favor of Sabre,
covering the Sabre Collateral.
5. Utilizing the SEC Xxxxx System, make available to Sabre copies
of the balance sheet of Company as of the close of the previous fiscal year of
Company, and statements of income and retained earnings and changes in cash flow
of Company for such fiscal year, in each case setting forth in comparative form
the figures for the preceding fiscal year, all in reasonable detail and
accompanied by an opinion thereon (which shall not be qualified by reason of any
limitation imposed by Company) of independent public accountants of recognized
national standings selected by Company and satisfactory to Sabre, to the effect
that such financial statements have been prepared in accordance with GAAP and
conformed to SEC regulations (except for changes in which such accountants
concur), and otherwise being reasonably satisfactory to Sabre; and
6. Such other documents and instruments as Sabre shall reasonably
request.
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SCHEDULE 7(i) TO AGREEMENT
ADDITIONAL COVENANTS
1. Negative Covenants. Until payment in full of the amounts due
under the Term Note and all other obligations and liabilities of Company
hereunder, Company covenants that it shall not (unless Sabre otherwise consents
in writing):
(a) create, incur, assume or guarantee any indebtedness for
borrowed money, except for (i) the Term Note, (ii) debt (and renewals and
extensions thereof) reflected on Company's most recent balance sheet, (iii) debt
created, incurred or assumed in any fiscal year not to exceed in the aggregate
the total of $100,000:(except for accounts payable assumed in the normal course
of business) or sell any of its accounts receivable, with or without recourse
(b) liquidate, dissolve or reorganize;; or make any other
substantial change in its capitalization or its business;
(c) pay any dividends on any of its outstanding stock, or
purchase, redeem or repurchase any of its stock;
(d) sell all or a substantial part of its assets used or useful in
its business, except in the ordinary course of business; or sell any of its
assets to any other person, firm or corporation with the agreement that such
assets shall be leased back to Company; or sell or transfer any assets for less
than fair value;
(e) purchase or acquire, directly or indirectly, any promissory
notes, stock or securities of any other person, firm or corporation, that would
result in lowering its Tangible Net Worth Below $1.4 million.
(f) permit any change of its CEO.
2. Financial Covenants.
(a) If Company owns consolidated subsidiaries, then the foregoing
financial attributes shall be determined on a consolidated basis, in accordance
with GAAP.
(b) Until payment in full of the amounts due under the Term Note
and all other obligations and liabilities of Company hereunder, Company
covenants that it shall not (unless Sabre otherwise consents in writing), at any
time:
(i) permit the ratio of its Current Assets to its Current
Liabilities to be less than 1.0;
(ii) permit its Tangible Net Worth to be less than $1.4
million;
(iii) permit the ratio of its Total Liabilities to Tangible
Net Worth to be more than 2.5;
IF COMPANY HAS A POSITIVE INCOME IN ANY QUARTER, ITEMS (II) ABOVE WILL BE
INCREASED BY HALF THE NET INCOME, AND ITEM (III) ABOVE WILL BE DECREASED
PROPORTIONATELY.
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EXHIBIT A TO TERM NOTE TERM NOTE AGREEMENT
SECURITY AGREEMENT SUPPLEMENT
THIS EXHIBIT A TO TERM NOTE AGREEMENT is attached to and forms a part
of that certain Security Supplement (the SECURITY SUPPLEMENT) dated January 22,
2001 between 800 Travel Systems (COMPANY) and Sabre Inc. (SABRE). Unless
otherwise defined in this Security Supplement, terms used in this Security
Supplement have the meanings provided in the Term Note Agreement.
1. GRANT OF SECURITY INTEREST. Company grants to Sabre a
perfected first priority security interest and lien in the following
(COLLATERAL):
(A) all accounts receivable, credits, and payments now or
hereafter arising or accruing under, or owing to Company (i) by Sabre or any of
its Affiliates under, the CRS Contract, or similar agreements to which Sabre or
any of its Affiliates are parties, whether or not other persons are also parties
(including without limitation, Incentive Payments), whether existing as of the
date hereof or arising hereafter, as such agreements shall be in effect from
time to time and as the same may be amended, modified, or replaced; or (ii) by
any other party, under any agreement, including without limitation incentive
payments, override payments, and commissions, whether existing as of the date
hereof or arising hereafter, as such agreements shall be in effect from time to
time and as the same may be amended, modified, or replaced and
(B) all substitutes and replacements for, accessions, attachments
and other additions to, books, records, documents, computer records, describing
or used in connection with, and proceeds and products of, the above Collateral,
and other documents, general intangibles, accounts and chattel paper arising
from or related to the above Collateral.
2. DESCRIPTION OF OBLIGATIONS. This Security Supplement and the
security interest granted hereunder secures all present and future obligations
whether joint, several, or joint and several (collectively, the OBLIGATION) to
Sabre of Company, including without limitation (a) Company's obligations to
repay the Term Note; (b) all costs incurred by Sabre to obtain, preserve,
perfect and enforce this Security Supplement and maintain, preserve, collect and
enforce the Collateral; (c) all reasonable expenses of Sabre, including fees and
expenses of Sabre's counsel, incident to the enforcement of payment of all
obligations of Company by any action or participation in, or in connection with
a case or proceeding under the bankruptcy code, or any successor statute
thereto; (d) any and all other indebtedness or liability, of whatever kind or
character, which is now owing or that may hereafter become owing to Sabre by
Company, whether such indebtedness or liability is absolute or contingent, joint
and/or several, secured or unsecured, direct or indirect, whether such
indebtedness is incurred as a principal or as a surety, endorser, guarantor,
accommodation party or otherwise or as a member of a partnership, joint venture,
trust or other business group, whether such indebtedness or liability arises by
operation of law or otherwise or is evidenced by note, open account, overdraft,
endorsement, surety agreement, guaranty, or otherwise, and whether such
indebtedness was originally incurred to Sabre or was later purchased by Sabre
(it being contemplated that such parties may become further indebted to Sabre);
and (e) any renewals, extensions, replacements, modifications, increases, or
reinstatements of any of the above-described indebtedness.
3. RIGHTS AND REMEDIES. Upon the occurrence of an Event of
Default, Sabre will have any and all rights and remedies described in the Term
Note Agreement or under any other applicable law or agreement, including,
without limitation, all rights and remedies of a secured creditor under Article
9 of the Uniform Commercial Code.
4. LIEN PRIORITY. Until full payment and performance of the
Obligation and termination or expiration of any obligation or commitment of
Sabre to make advances or Term Notes to Company,
13
Company shall defend the Collateral against all claims and demands of all
persons at any time claiming any interest therein adverse to Sabre. Debtor shall
keep the Collateral free from all liens and security interests except those for
taxes not yet due and the security interest hereby created.
5. FURTHER ASSURANCES. Company, upon the request of Sabre, shall
execute, acknowledge, deliver, and record such further instruments and do such
further acts as may be necessary, desirable, or proper to carry out the purposes
of the Sabre Documents, maintain and perfect the security interest created
hereunder, and to subject to the liens and security interests created thereby
any property intended by the terms thereof to be covered thereby, including
specifically, but without limitation, any renewals, additions, substitutions,
replacements, improvements or appurtenances to the Collateral.
IN WITNESS WHEREOF, Company has caused this Security Supplement to be
duly executed and delivered by its duly authorized officer as of __________,
____, 2000.
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By
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Name
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Title
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14
EXHIBIT B TO TERM NOTE AGREEMENT
FORM OF COMPLIANCE CERTIFICATE
DATE: _________________,
FROM: 800 Travel Systems (COMPANY)
TO: Sabre Inc. (SABRE)
This certificate is delivered under the Term Note Agreement, dated as
of January 22, 2001 (as amended, modified, supplemented, or restated from time
to time, the TERM NOTE AGREEMENT), between Company and Sabre. Capitalized terms
used herein and not otherwise defined herein shall have the meaning given to
such terms in the Term Note Agreement. I certify to Sabre that:
(a) I am an officer of Company in the position(s) set forth under
my signature below;
(b) the Financial Statements of Company available through the SEC
Xxxxx System were prepared in accordance with GAAP and conformed to SEC
regulations, and present fairly in all material respects the consolidated
financial condition and results of operations of Company as of, and for the
(three, six, or nine months, or fiscal year) ended on, , (the SUBJECT PERIOD)
[(subject only to normal year-end audit adjustments)]; and
(c) a review of the activities of Company during the Subject
Period has been made under my supervision with a view to determining whether,
during the Subject Period, Company has kept, observed, performed, and fulfilled
all of their respective obligations under the Sabre Documents, and during the
Subject Period, (i) Company kept, observed, performed, and fulfilled each and
every covenant and condition of the Sabre Documents (except for the deviations,
if any, set forth on ANNEX A to this certificate) in all material respects, and
(ii) no Event of Default (nor any potential Event of Default) has occurred which
has not been cured or waived (except the Events of Default or potential Events
of Default, if any, described on ANNEX A to this Certificate).
By
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Name
------------------------------------
Title
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15
ANNEX A TO COMPLIANCE CERTIFICATE
DEVIATIONS FROM TERM NOTE DOCUMENTS/
EVENTS OF DEFAULT OR POTENTIAL EVENT OF DEFAULT
(If none, so state.)
(To be Provided by Company)
16
ANNEX B TO COMPLIANCE CERTIFICATE
COMPLIANCE WITH FINANCIAL COVENANTS IN SCHEDULE 7(I) OF THE TERM NOTE AGREEMENT
COMPLIANCE WITH FINANCIAL COVENANTS IN [PRIMARY LENDER TERM NOTE AGREEMENT]
[Unless otherwise indicated, all calculations are made on a
consolidated basis for Company at the end of the Subject Period]
