PLEDGE AGREEMENT
PLEDGE AGREEMENT, dated as of December 31, 1997 (as amended from time
to time, the "AGREEMENT"), by and between Informix Corporation, a Delaware
corporation (the "PLEDGOR") 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") and beneficiaries under the
Guaranty as described below (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
Informix Software, Inc. (the "BORROWER"), Canadian Imperial Bank of Commerce as
syndication agent (the "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 Borrower, subject to the terms and
conditions set forth therein.
B. Pursuant to a Continuing Guaranty, dated as of December 31, 1997
(as amended from time to time, the "GUARANTY"), by the Pledgor in favor of the
Syndication Agent and the Secured Parties, the Pledgor has guaranteed the
Obligations of the Borrower to of the Syndication Agent and the Secured Parties.
C. It is a condition to the extension of such credit facilities to
the Borrower that the Collateral described herein be pledged in support of the
Pledgor's obligations under the Guaranty 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:
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ARTICLE 1.
DEFINITIONS AND RELATED MATTERS
SECTION 1.1. DEFINITIONS.
Terms with initial capital letters not otherwise defined herein
(including "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.
"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.
"CHANGE OF CONTROL" means the acquisition, directly or indirectly, by
any person (as defined in Section 13(d)(3) of the Exchange Act), of 50% or more
of the total voting power in the aggregate of all classes of common stock or
other equity securities of the Pledgor, then outstanding or the power, directly
or indirectly, to direct or cause the direction of the management and policies
of the Pledgor, whether through the ownership of voting securities, by contract,
or otherwise.
"COLLATERAL" is defined in Section 2.1.
"CREDIT AGREEMENT" is defined in the Recitals.
"DEFAULT" means any condition or event that, with the giving of notice
or lapse of time or both, would, unless cured or waived, become an Event of
Default.
"EVENT OF DEFAULT" is defined in Section 5.1.
"GUARANTY" is defined in the Recitals.
"LENDERS" is defined in the preamble.
"OFFICERS' CERTIFICATE" means, with respect to the Pledgor, 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 Pledgor and delivered to the Agent.
"PERMITTED SALE" is defined in Section 4.7.
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"PLEDGED COLLATERAL" is defined in Section 4.1.
"PLEDGED STOCK" shares of capital stock described on Schedule B-1.
"PLEDGOR" is defined in the preamble.
"PROCEEDS" is defined in Section 2.1.
"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.
"SECURITY INTEREST" is defined in Section 2.1.
"SUPPLEMENTAL DOCUMENTATION" means financing statements, continuation
statements, consents, acknowledgments, assignments, schedules of Collateral and
other instruments or documents necessary or requested by the Agent (i) to
perfect and maintain perfected the Security Interest on any Collateral, or
(ii) 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.
SECTION 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 under
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
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pursuant to the terms thereof. This 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. Section 1.2. of the Credit Agreement shall
govern the interpretation of this Agreement and is hereby incorporated herein by
reference, PROVIDED that (i) all references therein to any "Lender" shall be
read as being to any Secured Party, and (ii) all references therein as being to
"Guarantor" shall be read as being to Pledgor.
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ARTICLE 2.
THE SECURITY INTEREST; SECURED OBLIGATIONS
SECTION 2.1. SECURITY INTEREST. To secure the payment and
performance of the Secured Obligations as and when due, the Pledgor 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 and interest of the Pledgor in and to the following property, whether now
owned and existing or hereafter acquired or arising, and wherever located (such
property being, collectively, the "COLLATERAL"):
2.1.1. The Pledged Stock and all certificates and instruments
representing or evidencing the Pledged Stock, together with all interest coupons
(if any) attached thereto;
2.1.2. Any and all additions to or replacements for any of the
foregoing;
2.1.3. Any and all rights, powers, remedies and privileges of the
Pledgor under or with respect to any of the foregoing;
2.1.4. 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 in respect of or in exchange for any or all of
the foregoing (collectively, the "PROCEEDS"). "PROCEEDS" shall include (i) any
options, warrants, securities or other property issued or delivered by the
issuer of or obligor on any 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, and (ii) any
property received upon the liquidation or dissolution of any issuer of or
obligor on any Collateral or upon or in respect of any distribution of capital.
SECTION 2.2. SECURED OBLIGATIONS. The Security Interest shall
secure, for the equal and ratable benefit of the Secured Parties, the due and
punctual payment of any and all present and future obligations and liabilities
of the Pledgor of every type or description:
(a) to any Secured Party, or any of its successors or assigns,
(i) whether arising under or in connection with the
Guaranty and this Agreement;
(ii) whether for money borrowed, in respect of letters of
credit, for goods and services delivered or rendered, or other amounts in
connection with the Guaranty;
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(iii) 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) in
connection with the Guaranty, including for reimbursement of amounts that may be
advanced or expended by the Agent (A) to satisfy amounts required to be paid by
the Pledgor under this Agreement, the Guaranty or any other Loan Document for
claims and Charges, together with interest thereon to the extent provided, or
(B) to maintain or preserve any Collateral or to create, perfect, continue or
protect any Collateral or the Security Interest therein, or its priority; and
(iv) whether or not evidenced by one or more instruments,
documents, agreements or other writings; or
(b) or any Person entitled to indemnification from Pledgor under this
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 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 Pledgor represents and warrants that all representations and
warranties made with respect to it, its assets and its obligations in Article 3
of the Guaranty or made by the Borrower in Article IV 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.
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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 which the principal place of business or the chief executive
office of the Pledgor 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.
SECTION 3.2. LOCATIONS AND NAMES. Schedule 3.2. indicates (a) the
Pledgor'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 Pledgor 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 Pledgor's federal tax identification number, and (d) all prior
or current trade or legal names used to identify the Pledgor in its business or
in the ownership of its properties.
0.1. TITLE TO COLLATERAL; VALIDITY AND PERFECTION OF SECURITY
INTEREST; ABSENCE OF OTHER LIENS.
3.3.1. The Pledgor has good and marketable title to all Collateral.
The Security Interest constitutes a valid and, upon delivery of all Pledged
Collateral to the Secured Party Pursuant to Section 4.1. hereof and the filing
of financing statements covering the Collateral with the appropriate
Governmental Authorities in the United States, perfected Lien in all of the
Collateral and secures payment and performance of the Secured Obligations.
3.3.2. The Collateral is free and clear of all Liens other than the
Security Interest. Except for financing statements in favor of the Agent, the
Pledgor has not executed or permitted to be filed any financing statement
covering any Collateral.
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SECTION 3.4. REGARDING THE PLEDGED STOCK. Schedule 3.4. 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 3.4.
ARTICLE 4.
COVENANTS AND AGREEMENTS
SECTION 4.1. DELIVERY OF PLEDGED COLLATERAL, ETC.
4.1.1. On the date hereof, the Pledgor is delivering to the Agent all
Collateral consisting of 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 Pledgor 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. The Agent shall have the right, at any time in its discretion and
without notice to the Pledgor, to transfer to or to register in the name of the
Agent or its nominee any or all of the Collateral. In addition, the Agent 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.
4.1.2. Without limitation of subsection (a) above, if the Pledgor
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 Pledgor 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 Pledgor 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.
Section 4.2. FURTHER ASSURANCES. The Pledgor 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 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 Pledgor shall execute and deliver (or cause any third
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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. The Pledgor agrees that a
photocopy of this Agreement or of a financing statement is sufficient as a
financing statement.
SECTION 4.3. POWER OF ATTORNEY. The Pledgor hereby irrevocably
appoints the Agent and its employees and agents as the Pledgor's true and lawful
attorneys-in-fact, with full power of substitution, to do (a) all things
required to be done by the Pledgor 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 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 (except
as otherwise provided herein) and at the Pledgor's expense. Without limitation,
the Agent and its officers and agents shall be entitled to do all of the
following, as fully as the Pledgor might:
4.3.1. to sign the name of the Pledgor 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; and
4.3.2. to affix, by facsimile signature or otherwise, the general or
special endorsement of the Pledgor, 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.
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 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 Pledgor shall not 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 Pledgor shall pay
(a) all Charges imposed upon any Collateral, and (b) all claims that have become
due and payable and, under Applicable Law, have or may become Liens upon any
Collateral, in each case before any material penalty shall be incurred with
respect thereto; PROVIDED THAT, unless foreclosure, levy or similar proceedings
shall have commenced, the Pledgor 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
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Pledgor 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 a material disputed
amount, the Pledgor 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 Pledgor under
this Agreement or the other Loan Documents or waiving any Default or Event of
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 Pledgor written notice of its intent to
do the same and the Pledgor shall not have, within 15 days of such notice, paid
such claim or obtained to the Agent's satisfaction the release of the claim or
Lien to which such notice relates.
SECTION 4.6. DUTY OF CARE; INDEMNIFICATION.
4.6.1. 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
that (i) 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 Pledgor in writing,
although the such Secured Party shall not be obligated to comply with any such
requests, and (ii) the Secured Parties shall have no obligation to take any
actions to preserve rights against other parties with respect to any Collateral.
Without limitation, the Secured Parties shall (A) bear no risk or expense with
respect to any Collateral and (B) have no duty with respect to calls,
conversions, presentments, notices or other matters relating to Collateral, or
to maximize interest or other returns with respect thereto.
4.6.2. The Pledgor 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 Pledgor 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.
4.6.3. The Agent may at any time deliver or redeliver the Collateral
or any part thereof to the Pledgor and the receipt of any of the same by the
Pledgor 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 Pledgor
shall not sell, lease or otherwise dispose of any Collateral, or any interest
therein, or grant
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or suffer to exist any Lien in or on any Collateral. If any Collateral, or any
interest therein, is disposed of in violation of these provisions, the Security
Interest shall continue in such Collateral or interest notwithstanding such
disposition, the Person to which the Collateral or interest is being transferred
shall be bound by this Agreement, and the Pledgor shall deliver all Proceeds
thereof to the Agent to be held as Collateral hereunder.
SECTION 4.8. VOTING AND OTHER CONSENSUAL RIGHTS; DISTRIBUTIONS.
4.8.1. So long as no Event of Default shall exist:
4.8.1.1. The Pledgor shall be entitled to exercise any and all
voting, management and other consensual rights pertaining to any Collateral, for
any purpose not inconsistent with the terms of this Agreement and the other Loan
Documents; PROVIDED, HOWEVER, that the Pledgor shall not exercise any such right
if it would result in a "Default" or an "Event of Default" (each as defined in
the Credit Agreement), have a Material Adverse Effect on the Borrower, or result
in a Default or an Event of Default. Within 10 days of exercising any such
right in a manner material to the Secured Parties, the Pledgor shall give notice
to the Agent of such exercise and the action taken or approved in connection
therewith.
4.8.1.2. Except as otherwise provided herein, the Pledgor 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, and (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 of exchange of any
Collateral, shall be delivered to the Agent, in the exact form received, to be
held as Collateral hereunder.
4.8.2. So long as an Event of Default shall exist, at the sole option
of the Agent, any or all rights of the Pledgor to exercise voting, management
and other consensual rights and to receive cash and other property distributed
in respect of Collateral as permitted by Sections 4.8.1.1 and 4.8.1.2, shall
cease, at the option of the Agent, and the Agent, if and when it notifies the
Pledgor 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.
4.8.3. All cash and other property required to be delivered to the
Agent hereunder shall, if received by the Pledgor, be received in trust for the
benefit of the Secured Parties, be segregated from the other property of the
Pledgor, and promptly be delivered to the Agent in the same form as so received
(with any appropriate endorsements or assignments).
4.8.4. The Agent shall execute and deliver (or cause to be executed
and delivered) to the Pledgor all proxies and other instruments as the Pledgor
may reasonably
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request for the purpose of enabling the Pledgor to exercise the voting and other
rights which it is entitled to exercise pursuant to subsection 4.8.1 above.
4.8.5. The Agent agrees to release promptly to the Pledgor any cash
or other property paid or distributed in respect of the Collateral and received
by the Agent pursuant to Section 4.8.2. if, prior to the occurrence of an
Acceleration, all Defaults and Events of Default are no longer continuing.
ARTICLE 5.
EVENTS OF DEFAULT; RIGHTS AND REMEDIES ON DEFAULT
SECTION 5.1. EVENT OF DEFAULT. The occurrence of one or more of the
following shall constitute an "EVENT OF DEFAULT":
5.1.1. FAILURE TO MAKE PAYMENTS. The Pledgor shall fail to pay as
and when due any amounts payable under the Guaranty within three Business Days
of the date when due under the Guaranty; or
5.1.2. DEFAULT IN OTHER DEBT. Any breach or default (or other event
or condition) shall occur under any agreement, indenture or instrument relating
to any other Debt with a principal amount in excess of $2,000,000, if the
effect of such breach or default (or such other event or condition) is to cause,
or to permit the holder or holders of the other Debt (or a Person on behalf of
such holder or holders) to cause (upon the giving of notice, the lapse of time
or both, or otherwise), such other Debt to become or be declared due and
payable, or required to be prepaid, redeemed, purchased or defeased (or an offer
of prepayment, redemption, purchase or defeasance be made), prior to its stated
maturity (other than by a scheduled mandatory prepayment); or
5.1.3. BREACH OF COVENANTS. The Pledgor shall fail to perform,
comply with or observe any agreement, covenant or obligation under this
Agreement or the Guaranty; or
5.1.4. BREACH OF WARRANTY. Any representation or warranty or
certification made or furnished by the Pledgor under any Loan Document shall
have been false or incorrect in any material respect when made (or deemed made);
or
5.1.5. INVOLUNTARY BANKRUPTCY; APPOINTMENT OF RECEIVER, ETC. There
shall be commenced against the Pledgor, an involuntary case seeking the
liquidation or reorganization of the Pledgor under the Bankruptcy Code or any
similar proceeding under any other Applicable Law or an involuntary case or
proceeding seeking the appointment of a receiver, liquidator, sequestrator,
custodian, trustee or other officer having similar powers of the Pledgor or to
take possession of all or a substantial portion of its property or to operate
all or a substantial portion of its business, and any of the following events
occur: (a) the Pledgor consents to the institution of the involuntary case or
proceeding; (b) such petition commencing the involuntary case or proceeding is
not timely
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controverted; (c) the petition commencing the involuntary case or proceeding
remains undismissed and unstayed for a period of 60 days; or (d) an order for
relief shall have been issued or entered therein; or
5.1.6. VOLUNTARY BANKRUPTCY; APPOINTMENT OF RECEIVER, ETC. The
Pledgor shall institute a voluntary case seeking liquidation or reorganization
under the Bankruptcy Code or any similar proceeding under any other Applicable
Law, or shall consent thereto; or shall consent to the conversion of an
involuntary case to a voluntary case; or shall file a petition, answer a
complaint or otherwise institute any proceeding seeking, or shall consent to or
acquiesce in the appointment of, a receiver, liquidator, sequestrator,
custodian, trustee or other officer with similar powers of it or to take
possession of all or a substantial portion of its property or to operate all or
a substantial portion of its business; or shall make a general assignment for
the benefit of creditors; or shall generally not pay its debts as they become
due; or the Board of Directors of the Pledgor (or any committee thereof) adopts
any resolution or otherwise authorizes action to approve any of the foregoing;
or
5.1.7. CHANGE OF CONTROL. A Change of Control shall occur at any
time; or
5.1.8. TERMINATION OF LOAN DOCUMENTS, ETC. Any Loan Document, or any
material provision thereof, shall cease to be in full force and effect for any
reason, or any Lien in favor of the Agent thereunder shall fail to have the
priority required thereunder with respect to any Collateral, except upon a
release or termination of such Loan Document or Lien pursuant to the terms
thereof; or the Guarantor shall contest or purport to repudiate or disavow any
of its obligations under or the validity of enforceability of any Loan Document
or any material provision thereof.
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 Section 5.1 hereof (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 Guaranty 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:
13
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. following an Acceleration, to notify the issuers of the
Pledged Stock that the Pledged Stock has been assigned to the Agent and that all
distributions thereon are to be made directly and exclusively to or as specified
by the Agent;
5.2.2.3. following an Acceleration, to collect by legal
proceedings or otherwise all dividends, distributions, other sums now or
hereafter payable upon or on account of the Collateral;
5.2.2.4. to enter into any 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;
5.2.2.5. to receive, open and dispose of all mail addressed to
the Pledgor and notify postal authorities to change the address for delivery
thereof to such address as the Agent may designate, PROVIDED THAT the Agent
agrees that it will promptly deliver over to the Pledgor any such opened mail as
does not relate to the Collateral; and
5.2.2.6. 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
Pledgor or the Agent of any right, power or privilege pertaining to the
Collateral, the right to deposit and deliver any and all of the 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 Pledgor 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 Agent shall have the right to sell or otherwise dispose of
all or any Collateral at public or private sale or sales, with such notice as
may be required by Section 5.4., in lots or in bulk, at any exchange, over the
counter or at any of the Agent's offices or elsewhere, for cash or on credit,
with or without representations or warranties, all as the Agent, in its
discretion, may deem advisable. The Collateral need not be present at any such
sales. 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 thereof, but the Secured Parties shall not
incur any liability in case any such purchaser 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 not be obligated to make any sale
of the Collateral regardless of notice of sale having been given. 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 such purchase price any amount of the Secured
Obligations. The Pledgor agrees that any sale of Collateral conducted by the
Agent in
14
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.
5.2.4. 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 Pledgor 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 Pledgor 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 Pledgor
in connection therewith, notwithstanding the possibility that a substantially
higher price might have been realized at a public sale. The Pledgor 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.
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 Pledgor 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 notes and other receivables held
by the Agent and remaining after payment in full of all the Secured Obligations
shall be reassigned and redelivered as provided in Section 6.7.
15
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 Pledgor 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 Pledgor receives any
collections upon or other Proceeds of any Collateral, whether in the form of
cash, notes or otherwise, such Proceeds shall be received in trust for the
Secured Parties and the Pledgor 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 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 Pledgor 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 Pledgor 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 Pledgor. 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
adjourned. The Pledgor 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 Pledgor 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, (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 Pledgor to
16
perform or observe any of the provisions hereof. All such amounts and all other
amounts payable hereunder shall be payable on demand.
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 Pledgor. 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 Pledgor in any
case shall entitle the Pledgor 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 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 telecopier numbers) indicated on Schedule 1.1B
to the Credit Agreement or Schedule 5.4 of the Guaranty, as applicable.
SECTION 6.5. SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon and, subject to the next sentence, inure to the benefit of the Pledgor and
the Agent and their respective permitted successors and assigns. The Pledgor
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 Pledgor, 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
17
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 Pledgor 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 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 Pledgor set forth in Sections 4.6.2., and 6.1.
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 Pledgor, forthwith assign, transfer and
deliver to the Pledgor 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 (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 OF TRIAL BY JURY. THE PLEDGOR AND, BY THEIR
ACCEPTANCE OF THIS AGREEMENT, THE SECURED PARTIES, WAIVE THE RIGHT TO A TRIAL BY
JURY IN ANY ACTION UNDER THIS AGREEMENT OR ANY ACTION ARISING OUT OF THE
TRANSACTIONS CONTEMPLATED HEREBY, REGARDLESS OF WHICH PARTY INDICATES SUCH
ACTION OR ACTIONS.
SECTION 6.9. WAIVER AND ESTOPPEL. Except as otherwise provided in
this Agreement, the Pledgor 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
18
exemption laws; (e) any rights to require marshalling 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 6.10. 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 6.11. COMPLETE AGREEMENT. This Agreement, together with the
exhibits and schedules hereto, the Guaranty 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 6.12. LIMITATION OF LIABILITY. No claim shall be made by the
Pledgor 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 Pledgor 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 6.13. CONFLICTING AGREEMENTS; COLLATERAL SPECIFICALLY COVERED
BY OTHER AGREEMENTS. To the extent the terms and provisions of this Agreement
conflict with the terms and provisions of the Pledge and Security Agreement or
any other Collateral Document, the terms and provisions of this Agreement shall
govern as they relate to the Collateral.
19
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed and delivered as of the date first set forth above.
PLEDGOR:
INFORMIX CORPORATION, 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, as Agent
By: /s/ Xxxx X. Xxxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxxx
-----------------------------------
Title: Vice President
----------------------------------
20
SCHEDULE B-1
PLEDGED STOCK
100% of the stock of the following subsidiaries is pledged under this
Agreement:
Informix Software, Inc., a Delaware corporation
Informix International, Inc., a Delaware corporation
Illustra Information Technologies, Inc., a Delaware corporation.
Stanford Technology Group, Inc. a California corporation
Centerview Software, Inc., a California corporation.
1
SCHEDULE 3.2.
SCHEDULE OF LOCATIONS AND NAMES
CHIEF EXECUTIVE OFFICE:
0000 Xxxxxxxx Xxxxx
Xxxxx Xxxx, XX 00000
OTHER PLACES OF BUSINESS (SUBSIDIARIES):
See attached Exhibit
Federal Taxpayer Identification Number: 00-0000000.
Current and prior names include Relational Database Systems, Inc.
1
SCHEDULE 3.4
CAPITALIZATION OF ISSUERS OF PLEDGED STOCK
100 common shares of Informix Software, Inc., a Delaware corporation issued to
Pledgor.
1,000 common shares of Informix International, Inc., a Delaware corporation
issued to Pledgor.
1,000 common shares of llustra Information Technologies, Inc., a Delaware
corporation issued to Pledgor.
1,000 common shares of Stanford Technology Group, Inc. a California corporation
issued to Pledgor.
1,000 common shares of Centerview Software, Inc., a California corporation
issued to Pledgor.
1
