SECURITY AGREEMENT
SECURITY AGREEMENT, dated as of October 21, 2005 (this "Agreement"), among
OneTravel Holdings, Inc., a Delaware corporation (the "Company"), Farequest
Holdings, Inc., a Delaware corporation ("Farequest"), and OneTravel, Inc., a
Texas corporation ("OneTravel" and, together with Farequest, the "Guarantors")
(the Company and Guarantors are collectively referred to as the "Debtors"), the
holder or holders of the Company's 9% Secured Debenture due October [__], 2008
in the original aggregate principal amount of $[12,600,000] (the "Debenture"),
signatory hereto, their endorsees, transferees and assigns (collectively, the
"Secured Parties") and Agent (as hereinafter defined).
W I T N E S S E T H:
WHEREAS, pursuant to that certain Securities Purchase Agreement dated as
of the date hereof, to which the Company and the Secured Parties are parties (as
amended, modified or supplemented from time to time in accordance with its
terms, the "Purchase Agreement"), the Secured Parties have severally agreed to
extend the loans to the Company evidenced by the Debenture;
WHEREAS, pursuant to a certain Subsidiary Guarantee dated as of the date
hereof (the "Guaranty"), the Guarantors have jointly and severally agreed to
guaranty and act as surety for payment of such loans; and
WHEREAS, in order to induce the Secured Parties to extend the loans
evidenced by the Debentures, each Debtor has agreed to execute and deliver to
the Agent, for the benefit of the Secured Parties, this Agreement and to grant
to the Secured Parties, pari passu with each other Secured Party, a security
interest in certain property of such Debtor to secure the prompt payment,
performance and discharge in full of all of the Company's obligations under the
Debenture and the other Debtors' obligations under the Guaranty.
NOW, THEREFORE, in consideration of the agreements herein contained and
for other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties hereto hereby agree as follows:
1. Certain Definitions. Capitalized terms used but not otherwise defined
herein shall have the meaning given such terms in the Purchase Agreement. As
used in this Agreement, the following terms shall have the meanings set forth in
this Section 1. Terms used but not otherwise defined in this Agreement that are
defined in Article 9 of the UCC (such as "account", "chattel paper", "commercial
tort claim", "deposit account", "document", "equipment", "fixtures", "general
intangibles", "goods", "instruments", "inventory", "investment property",
"letter-of-credit rights", "proceeds" and "supporting obligations") shall have
the respective meanings given such terms in Article 9 of the UCC.
1
(a) "Collateral" means the collateral in which the Secured Parties are
granted a security interest by this Agreement and which shall include the
following personal property of the Debtors, whether presently owned or existing
or hereafter acquired or coming into existence, wherever situated, and all
additions and accessions thereto and all substitutions and replacements thereof,
and all proceeds, products and accounts thereof, including, without limitation,
all proceeds from the sale or transfer of the Collateral and of insurance
covering the same and of any tort claims in connection therewith, and all
dividends, interest, cash, notes, securities, equity interest or other property
at any time and from time to time acquired, receivable or otherwise distributed
in respect of, or in exchange for, any or all of the Pledged Securities (as
defined below):
(i) All goods, including, without limitations, (A) all machinery,
equipment, computers, motor vehicles, trucks, tanks, boats, ships,
appliances, furniture, special and general tools, fixtures, test and
quality control devices and other equipment of every kind and nature and
wherever situated, together with all documents of title and documents
representing the same, all additions and accessions thereto, replacements
therefor, all parts therefor, and all substitutes for any of the foregoing
and all other items used and useful in connection with any Debtor's
businesses and all improvements thereto; and (B) all inventory;
(ii) All contract rights and other general intangibles, including,
without limitation, all partnership interests, membership interests, stock
or other securities, rights under any of the Organizational Documents,
agreements related to the Pledged Securities, licenses, distribution and
other agreements, computer software (whether "off-the-shelf", licensed
from any third party or developed by any Debtor), computer software
development rights, leases, franchises, customer lists, quality control
procedures, grants and rights, goodwill, trademarks, service marks, trade
styles, trade names, patents, patent applications, copyrights, and income
tax refunds;
(iii) All accounts, together with all instruments, all documents of
title representing any of the foregoing, all rights in any merchandising,
goods, equipment, motor vehicles and trucks which any of the same may
represent, and all right, title, security and guaranties with respect to
each account, including any right of stoppage in transit;
(iv) All documents, letter-of-credit rights, instruments and chattel
paper;
(v) All commercial tort claims;
2
(vi) All deposit accounts and all cash (whether or not deposited in
such deposit accounts);
(vii) All investment property;
(viii) All supporting obligations;
(ix) All files, records, books of account, business papers, and
computer programs; and
(x) the products and proceeds of all of the foregoing Collateral set
forth in clauses (i)-(ix) above.
Without limiting the generality of the foregoing, the "Collateral"
shall include all investment property and general intangibles respecting
ownership and/or other equity interests in each Guarantor, and all
certificates representing such shares and/or equity interests and all
rights, options, warrants, stock, other securities and/or equity interests
that may hereafter be received, receivable or distributed in respect of,
or exchanged for, any of the foregoing (all of the foregoing being
referred to herein as the "Pledged Securities") and all rights arising
under or in connection with the Pledged Securities, including, but not
limited to, all dividends, interest and cash.
Notwithstanding the foregoing, nothing herein shall be deemed to
constitute an assignment of any asset which, in the event of an
assignment, becomes void by operation of applicable law or the assignment
of which is otherwise prohibited by applicable law (in each case to the
extent that such applicable law is not overridden by Sections 9-406, 9-407
and/or 9-408 of the UCC or other similar applicable law); provided,
however, that to the extent permitted by applicable law, this Agreement
shall create a valid security interest in such asset and, to the extent
permitted by applicable law, this Agreement shall create a valid security
interest in the proceeds of such asset.
(b) "Farequest Note" shall mean the "Farequest Note" as defined in the
Purchase Agreement, as such Farequest Note may be amended, modified or
supplemented from time to time in accordance with their terms.
(c) "Farequest Note Documents" shall mean the "Farequest Note Documents"
as defined in the Purchase Agreement, as such Farequest Note Documents may be
amended, modified or supplemented from time to time in accordance with their
terms.
3
(d) "Intellectual Property" means the collective reference to all rights,
priorities and privileges relating to intellectual property, whether arising
under United States, multinational or foreign laws or otherwise, including,
without limitation, (i) all copyrights arising under the laws of the United
States, any other country or any political subdivision thereof, whether
registered or unregistered and whether published or unpublished, all
registrations and recordings thereof, and all applications in connection
therewith, including, without limitation, all registrations, recordings and
applications in the United States Copyright Office, (ii) all letters patent of
the United States, any other country or any political subdivision thereof, all
reissues and extensions thereof, and all applications for letters patent of the
United States or any other country and all divisions, continuations and
continuations-in-part thereof, (iii) all trademarks, trade names, corporate
names, company names, business names, fictitious business names, trade dress,
service marks, logos, domain names and other source or business identifiers, and
all goodwill associated therewith, now existing or hereafter adopted or
acquired, all registrations and recordings thereof, and all applications in
connection therewith, whether in the United States Patent and Trademark Office
or in any similar office or agency of the United States, any State thereof or
any other country or any political subdivision thereof, or otherwise, and all
common law rights related thereto, (iv) all trade secrets arising under the laws
of the United States, any other country or any political subdivision thereof,
(v) all rights to obtain any reissues, renewals or extensions of the foregoing,
(vi) all licenses for any of the foregoing, and (vii) all causes of action for
infringement of the foregoing.
(e) "Liens" means a lien, charge, security interest, encumbrance, right of
first refusal, preemptive right or other restriction.
(f) "Majority in Interest" shall mean, at any time of determination, the
majority in interest (based on then-outstanding principal amounts of Debentures
at the time of such determination) of the Secured Parties.
(g) "Necessary Endorsement" shall mean undated stock powers endorsed in
blank or other proper instruments of assignment duly executed and such other
instruments or documents as the Agent (as that term is defined below) may
reasonably request.
(h) "Obligations" means all of the liabilities and obligations (primary,
secondary, direct, contingent, sole, joint or several) due or to become due, or
that are now or may be hereafter contracted or acquired, or owing to, of any
Debtor to the Secured Parties under this Agreement, the Debentures, the Guaranty
and any other instruments, agreements or other documents executed and/or
delivered in connection herewith or therewith, in each case, whether now or
hereafter existing, voluntary or involuntary, direct or indirect, absolute or
contingent, liquidated or unliquidated, whether or not jointly owed with others,
and whether or not from time to time decreased or extinguished and later
increased, created or incurred, and all or any portion of such obligations or
liabilities that are paid, to the extent all or any part of such payment is
avoided or recovered directly or indirectly from any of the Secured Parties as a
preference, fraudulent transfer or otherwise as such obligations may be amended,
supplemented, converted, extended or modified from time to time. Without
limiting the generality of the foregoing, the term "Obligations" shall include,
without limitation: (i) principal of, and interest on the Debentures and the
loans extended pursuant thereto; (ii) any and all other fees, indemnities,
costs, obligations and liabilities of the Debtors from time to time under or in
connection with this Agreement, the Debentures, the Guaranty and any other
instruments, agreements or other documents executed and/or delivered in
connection herewith or therewith; and (iii) all amounts (including but not
limited to post-petition interest) in respect of the foregoing that would be
payable but for the fact that the obligations to pay such amounts are
unenforceable or not allowable due to the existence of a bankruptcy,
reorganization or similar proceeding involving any Debtor.
4
(i) "Organizational Documents" means with respect to any Debtor, the
documents by which such Debtor was organized (such as a certificate of
incorporation, certificate of limited partnership or articles of organization,
and including, without limitation, any certificates of designation for preferred
stock or other forms of preferred equity) and which relate to the internal
governance of such Debtor (such as bylaws, a partnership agreement or an
operating, limited liability or members agreement).
(j) "Permitted Liens" means the individual and collective reference to the
following: (a) Liens for taxes, assessments and other governmental charges or
levies not yet due or Liens for taxes, assessments and other governmental
charges or levies being contested in good faith and by appropriate proceedings
for which adequate reserves (in the good faith judgment of the management of the
Debtors) have been established in accordance with GAAP, (b) Liens imposed by law
which were incurred in the ordinary course of business, such as carriers',
warehousemen's and mechanics' Liens, statutory landlords' Liens, and other
similar Liens arising in the ordinary course of business, and (x) which do not
individually or in the aggregate materially detract from the value of such
property or assets or materially impair the use thereof in the operation of the
business of the Debtors or (y) which are being contested in good faith by
appropriate proceedings, which proceedings have the effect of preventing the
forfeiture or sale of the property or asset subject to such Lien, (c) Liens
incurred in connection with Permitted Indebtedness (as defined in the Debenture)
under clause (f) thereunder provided that such Liens are not secured by assets
of the Debtors other than the assets so acquired or leased and replacements and
proceeds thereof, (d) Liens in favor of the Secured Parties created under this
Agreement, (e) the Prior Liens, (f) Liens (other than any Lien imposed by ERISA)
consisting of pledges or deposits required in the ordinary course of business in
connection with workers' compensation, unemployment insurance and other social
security legislation or to secure the performance of tenders, statutory
obligations, surety, stay, customs and appeals bonds, bids, leases, governmental
contracts, trade contracts, performance and return of money bonds and other
similar obligations (exclusive of obligations for the payment of borrowed money)
or to secure liability to insurance carriers, (g) Liens consisting of judgment
or judicial attachment liens, provided that the enforcement of such Liens is
effectively stayed and all such Liens secure claims in the aggregate at any time
outstanding for the Company and its Subsidiaries do not exceed $150,000, (h)
easements, rights-of-way, zoning and other restrictions, minor defects or other
irregularities in title, and other similar encumbrances incurred in the ordinary
course of business which, in the aggregate, do not in any case interfere in any
material respect with the ordinary conduct of the businesses of the Company, (i)
Liens arising from precautionary UCC financing statements filed under any lease
permitted by the Transaction Documents and (j) Liens arising from travel agency
regulations relating to customer funds.
(k) "Prior Liens" means (i) in the case of the Collateral of the Company,
the Liens of the holders of the Seller Notes under the Seller Note Documents as
of the date hereof (the "Seller Liens") and (ii) in the case of the Collateral
of Farequest, the Liens of the holder of the Farequest Note under the Farequest
Note Documents as of the date hereof (the "Farequest Note Liens"); provided,
however, under no circumstances shall a Prior Lien include any Liens on any of
the assets of One Travel, Inc., a Texas corporation, or any subsidiary thereof.
(l) "Seller Note Documents" shall mean the "Seller Note Documents" as
defined in the Purchase Agreement, as such Seller Note Documents may be amended,
modified or supplemented from time to time in accordance with their terms.
(m) "Seller Notes" shall mean the "Seller Notes" as defined in the
Purchase Agreement, as such Seller Notes may be amended, modified or
supplemented from time to time in accordance with their terms.
(n) "UCC" means the Uniform Commercial Code of the State of New York and
or any other applicable law of any state or states which has jurisdiction with
respect to all, or any portion of, the Collateral or this Agreement, from time
to time. It is the intent of the parties that defined terms in the UCC should be
construed in their broadest sense so that the term "Collateral" will be
construed in its broadest sense. Accordingly if there are, from time to time,
changes to defined terms in the UCC that broaden the definitions, they are
incorporated herein and if existing definitions in the UCC are broader than the
amended definitions, the existing ones shall be controlling.
2. Grant of Security Interest. As an inducement for the Secured Parties to
extend the loans as evidenced by the Debentures and to secure the complete and
timely payment, performance and discharge in full, as the case may be, of all of
the Obligations, each of the Debtors hereby unconditionally and irrevocably
pledges, grants and hypothecates to the Secured Parties, a continuing security
interest in and to, a Lien upon and a right of set-off against all of their
respective right, title and interest of whatsoever kind and nature in and to,
the Collateral (collectively, the "Security Interest").
5
3. Delivery of Certain Collateral. Contemporaneously or prior to the
execution of this Agreement, each Debtor shall deliver or cause to be delivered
to the Agent, for the benefit of the Secured Parties, (a) any and all
certificates and other instruments representing or evidencing the Pledged
Securities, and (b) any and all certificates and other instruments or documents
representing any of the other Collateral, in each case, together with all
Necessary Endorsements; provided, that until the payment in full of all of the
obligations and liabilities of the Company under the Seller Note Documents and
of Farequest under the Farequest Note Documents, no Debtor shall be required to
deliver any of the foregoing certificates and other instruments or documents to
the extent any of the foregoing is subject to a Prior Lien. Upon the payment in
full of all of the obligations and liabilities of the Company under the Seller
Note Documents and of Farequest under the Farequest Note Documents, the Debtors
shall promptly deliver or cause to be delivered to the Agent (a) any and all
such certificates and other instruments representing or evidencing the Pledged
Securities, and (b) any and all such certificates and other instruments or
documents representing any of the other Collateral, in each case, to the extent
not previously delivered to the Agent as a result of the proviso in the
immediately preceding sentence, together with all such Necessary Endorsements.
The Debtors are, contemporaneously with the execution hereof, delivering to
Agent, or have previously delivered to Agent, a true and correct copy of each
Organizational Document governing any of the Pledged Securities.
4. Representations, Warranties, Covenants and Agreements of the Debtors.
Each Debtor represents and warrants to, and covenants and agrees with, the
Secured Parties, as follows:
(a) Each Debtor has the requisite corporate power and authority to enter
into this Agreement and otherwise to carry out its obligations hereunder. The
execution, delivery and performance by each Debtor of this Agreement and, if
applicable, the filings contemplated therein have been duly authorized by all
necessary action on the part of such Debtor and no further action is required by
such Debtor. This Agreement has been duly executed by each Debtor. This
Agreement constitutes the legal, valid and binding obligation of each Debtor,
enforceable against each Debtor in accordance with its terms except as such
enforceability may be limited by the existence of the Prior Liens or any
applicable bankruptcy, insolvency, reorganization and similar laws of general
application relating to or affecting the rights and remedies of creditors and by
general principles of equity.
(b) The Debtors have no place of business or offices where their
respective books of account and records are kept (other than temporarily at the
offices of its attorneys or accountants) or places where Collateral (other than,
until the payment in full of all of the obligations and liabilities of the
Company under the Seller Note Documents and of Farequest under the Farequest
Note Documents, Collateral subject to a Prior Lien in the possession of any of
the Seller Note holders, the Farequest Note holder or their respective agents)
is stored or located, except as set forth on Schedule A attached hereto. Except
as specifically set forth on Schedule A, each Debtor is the record owner of the
real property where such Collateral is located, and there exist no mortgages or
other Liens on any such real property except for Permitted Liens (including,
without limitation, the Prior Liens). Except as disclosed on Schedule A, none of
such Collateral is in the possession of any consignee, bailee, warehouseman,
agent or processor.
6
(c) Except for Permitted Liens (including, without limitation, the Prior
Liens), non-exclusive licenses granted by any Debtor in the ordinary course of
business and as set forth on Schedule B attached hereto, the Debtors are the
sole owners of the Collateral, free and clear of any Liens, and are fully
authorized to grant the Security Interest. Except for UCC financing statements
and other filings filed by or on behalf of (a) the holders of the Seller Notes
under the Seller Note Documents and (b) the holder of the Farequest Note under
the Farequest Note Documents, there is not on file in any governmental or
regulatory authority, agency or recording office an effective financing
statement, security agreement, license or transfer or any notice of any of the
foregoing (other than those that will be filed in favor of the the Secured
Parties, pursuant to this Agreement) covering or affecting any of the
Collateral. So long as this Agreement shall be in effect, the Debtors shall not
execute and shall not knowingly permit to be on file in any such office or
agency any such financing statement or other document or instrument, in each
case that is senior or pari passu to the financing statements filed in favor of
the Secured Parties, pursuant to the terms of this Agreement (except for UCC
financing statements and other filings filed by or on behalf of (a) the holders
of the Seller Notes under the Seller Note Documents and (b) the holder of the
Farequest Note under the Farequest Note Documents and except to the extent filed
or recorded in favor of the Agent, for the benefit of the Secured Parties,
pursuant to the terms of this Agreement).
(d) No written claim has been received by any Debtor that any Collateral
or Debtor's use of any Collateral violates the rights of any third party. To the
knowledge of the Debtors, there has been no adverse decision to any Debtor's
claim of ownership rights in or exclusive rights to use the Collateral in any
jurisdiction or to any Debtor's right to keep and maintain such Collateral in
full force and effect, and there is no proceeding against any Debtor involving
said rights pending or, to the best knowledge of any Debtor, threatened before
any court, judicial body, administrative or regulatory agency, arbitrator or
other governmental authority.
(e) Each Debtor shall at all times maintain its books of account and
records relating to the Collateral at its principal place of business and its
tangible Collateral (other than, until the payment in full of all of the
obligations and liabilities of the Company under the Seller Note Documents and
of Farequest under the Farequest Note Documents, Collateral subject to a Prior
Lien in the possession of any of the Seller Note holders, the Farequest Note
holder or their respective agents) at the locations set forth on Schedule A
attached hereto and may not relocate such books of account and records or
tangible Collateral unless it delivers to the Agent, for the benefit of the
Secured Parties, at least 10 days prior to such relocation (i) written notice of
such relocation and the new location thereof (which must be within the United
States) and (ii) evidence that appropriate financing statements under the UCC
and other necessary documents have been filed and recorded and other steps have
been taken to perfect the Security Interest to create in favor of the Secured
Parties, a valid and perfected Lien in the Collateral to the extent a Lien in
such Collateral may be perfected by the filing of a UCC financing statement,
which Lien shall be a first-priority security interest in such Collateral,
subject only to Permitted Liens (including, without limitation, the Prior
Liens).
7
(f) This Agreement creates in favor of the Secured Parties, a valid,
first-priority security interest in the Collateral, subject only to Permitted
Liens (including, without limitation, the Prior Liens) securing the payment and
performance of the Obligations. Upon making the filings described in the
immediately following paragraph, the Security Interests created hereunder in any
Collateral which may be perfected by filing UCC financing statements shall have
been duly perfected. Except for the filing of the UCC financing statements
referred to in the immediately following paragraph, no action is necessary to
create, perfect or protect the Security Interest created hereunder in such
portion of the Collateral that consists of the type of property in which a
security interest may be perfected by the filing of a financing statement under
the UCC. Without limiting the generality of the foregoing, except for the filing
of said financing statements, no consent of any third parties and no
authorization, approval or other action by, and no notice to or filing with, any
governmental authority or regulatory body is required for (i) the execution,
delivery and performance of this Agreement, (ii) the creation or perfection of
the Security Interest created hereunder in such portion of the Collateral that
consists of the type of property in which a security interest may be perfected
by the filing of a financing statement under the UCC or (iii) the enforcement of
the rights of the Secured Parties hereunder, subject to the rights of the
Farequest Note holder and the Seller Note holders with respect to the Prior
Liens.
(g) Each Debtor hereby authorizes the Agent, for the benefit of the
Secured Parties, to file one or more financing statements under the UCC, with
respect to the Security Interest with the proper filing and recording agencies
in any jurisdiction deemed proper by it.
(h) The execution, delivery and performance of this Agreement by the
Debtors does not (i) violate any of the provisions of any Organizational
Documents of any Debtor or, any judgment, decree, order or award of any court,
governmental body or arbitrator or any applicable law, rule or regulation
applicable to any Debtor or (ii) conflict with, or constitute a default (or an
event that with notice or lapse of time or both would become a default) under,
or give to others any rights of termination, amendment, acceleration or
cancellation (with or without notice, lapse of time or both) of, any agreement,
credit facility, debt or other instrument (evidencing any Debtor's debt or
otherwise) or other understanding to which any Debtor is a party or by which any
property or asset of any Debtor is bound or affected. No consent (including,
without limitation, from stockholders or creditors of any Debtor) is required
for any Debtor to enter into and perform its obligations hereunder.
8
(i) The Company owns all of the outstanding capital stock of the
Guarantors. All of the Pledged Securities are validly issued, fully paid and
nonassessable, and the Company is the legal and beneficial owner of the Pledged
Securities, free and clear of any Lien except for the Liens created by this
Agreement and other Permitted Liens (including, without limitation, the Prior
Liens).
(j) Each Debtor shall at all times maintain the Security Interest
hereunder as valid and perfected Liens in the Collateral in favor of the Secured
Parties, subject only to Permitted Liens (including, without limitation, the
Prior Liens), until this Agreement and the Security Interest created hereunder
shall be terminated pursuant to Section 14 hereof. Each Debtor hereby agrees to
defend the same against the claims of any and all persons and entities. Each
Debtor shall safeguard and protect all Collateral for the account of the Secured
Parties. At the request of the Agent, each Debtor will deliver to the Agent at
any time or from time to time one or more financing statements pursuant to the
UCC in form reasonably satisfactory to the Agent and will pay the cost of filing
the same in all public offices wherever filing is, or is deemed by the Agent to
be, necessary or desirable to effect the rights and obligations provided for
herein. Without limiting the generality of the foregoing, each Debtor shall pay
all fees, taxes and other amounts necessary to maintain the Collateral and the
Security Interest hereunder, and each Debtor shall obtain and furnish to the
Agent from time to time, upon demand, such releases and/or subordinations of
Liens which may be required to maintain the priority of the Security Interest
hereunder.
(k) No Debtor will transfer, pledge, hypothecate, encumber, license, sell
or otherwise dispose of any of the Collateral (except for (i) licenses granted
by a Debtor in its ordinary course of business, (ii) sales of inventory by a
Debtor in its ordinary course of business, (iii) sales of used, worn-out or
surplus equipment, (iv) the use of cash in its ordinary course of business and
(v) other dispositions not to exceed $250,000 in the aggregate per annum)
without the prior written consent of a Majority in Interest.
(l) Each Debtor shall keep and preserve its equipment, inventory and other
tangible Collateral in good condition, repair and order (ordinary wear and tear
excepted) and shall not operate or locate any such Collateral (or cause to be
operated or located) in any area excluded from insurance coverage.
9
(m) Each Debtor shall maintain with financially sound and reputable
insurers, insurance with respect to the Collateral against loss or damage of the
kinds and in the amounts customarily insured against by entities of established
reputation having similar properties similarly situated and in such amounts as
are customarily carried under similar circumstances by other such entities and
otherwise as is prudent for entities engaged in similar businesses but in any
event sufficient to cover the full replacement cost thereof. Each Debtor shall
cause each insurance policy issued in connection herewith to provide, and the
insurer issuing such policy to certify to the Agent that (a) the Agent will be
named as additional insured under each such insurance policy; (b) if such
insurance be proposed to be cancelled or materially changed for any reason
whatsoever, such insurer will use commercially reasonable efforts to notify the
Agent of such cancellation or change; and (c) the Agent will have the right (but
no obligation) at its election to remedy any default in the payment of premiums
within thirty (30) days of notice from the insurer of such default. If no Event
of Default (as defined in the Debenture) then exists and if the proceeds arising
out of any claim or series of related claims do not exceed $100,000, loss
payments in each instance will be applied by the applicable Debtor to the repair
and/or replacement of property with respect to which the loss was incurred to
the extent reasonably feasible within 180 days of such Debtor's receipt of such
proceeds, and any loss payments or the balance thereof remaining, to the extent
not so applied, shall be payable, subject to the prior rights of the Seller Note
holders and the Farequest Note holder with respect to insurance proceeds subject
to a Prior Lien, to the applicable Debtor; provided, however, that payments
received by any Debtor after an Event of Default occurs and is continuing or in
excess of $100,000 for any occurrence or series of related occurrences shall,
subject to the prior rights of the Seller Note holders and the Farequest Note
holder with respect to insurance proceeds subject to a Prior Lien, be paid to
the Agent and, if received by such Debtor, shall, subject to the prior rights of
the Seller Note holders and the Farequest Note holder with respect to insurance
proceeds subject to a Prior Lien, be held in trust for and immediately paid over
to the Agent unless otherwise directed in writing by the Agent, to be applied to
the Obligations as set forth in Section 9 hereof. Copies of such policies or the
related certificates, in each case, naming the Agent as an additional insured
shall, at the request of the Agent, be delivered to the Agent annually and at
the time any new policy of insurance is issued.
(n) Each Debtor shall, within ten (10) days of obtaining knowledge
thereof, advise the Agent, in sufficient detail, of any substantial change in a
material portion of the Collateral, and of the occurrence of any event which
would have a material adverse effect on the value of the Collateral, as a whole,
or on the Security Interest.
(o) Each Debtor shall promptly execute and deliver to the Agent such
further deeds, mortgages, assignments, security agreements, financing statements
or other instruments, documents, certificates and assurances and take such
further action as the Agent may from time to time request and may in its sole
discretion deem necessary to perfect, protect or enforce the Security Interest,
in each case, subject to the prior rights and remedies of the Seller Note
holders and Farequest Note holder with respect to Collateral subject to the
Prior Liens.
10
(p) Each Debtor shall permit the Agent, on behalf of the Secured Parties,
and its representatives and agents to inspect the Collateral at any time, and to
make copies of records pertaining to the Collateral as may be requested by the
Agent from time to time; provided, that except after the occurrence and during
the continuation of an Event of Default, the inspection rights of the Agent
hereunder shall be limited to no more frequently that once per quarter and shall
occur during normal business hours and upon no less than 24 hours advance
written notice to the Debtors.
(q) Each Debtor shall take all steps reasonably necessary to diligently
pursue and seek to preserve, enforce and collect any rights, claims, causes of
action and accounts receivable in respect of the Collateral, subject to ordinary
returns, allowances and set-offs in the ordinary course of business.
(r) Each Debtor shall promptly notify the Agent in sufficient detail upon
becoming aware of any attachment, garnishment, execution or other legal process
levied against any portion of the Collateral and of any other information
received by such Debtor that may materially affect the value of a portion of the
Collateral, the Security Interest or the rights and remedies of the Secured
Parties hereunder.
(s) All information heretofore, herein or hereafter supplied to the Agent
by or on behalf of any Debtor with respect to the Collateral is accurate and
complete in all material respects as of the date furnished.
(t) The Debtors shall at all times preserve and keep in full force and
effect their respective valid existence and good standing and any rights and
franchises material to its business, in each case, except as would not have a
Material Adverse Effect.
(u) No Debtor will change its name, type of organization, jurisdiction of
organization, organizational identification number (if it has one), legal or
corporate structure, or identity, or add any new fictitious name unless it
provides at least 10 days prior written notice to the Agent of such change and,
at the time of such written notification, such Debtor provides any financing
statements or fixture filings necessary to perfect and continue perfected the
Security Interest created hereunder.
(v) No Debtor may consign any of its Inventory or sell any of its
Inventory on ▇▇▇▇ and hold, sale or return, sale on approval, or other
conditional terms of sale without the consent of a Majority in Interest which
shall not be unreasonably withheld, except to the extent such consignment or
sale does not exceed 15% of the total value of all of the Company's finished
goods in Inventory.
11
(w) No Debtor may relocate its chief executive office to a new location
without providing 10 days prior written notification thereof to the Agent and so
long as, at the time of such written notification, such Debtor provides any
financing statements or fixture filings necessary to perfect and continue
perfected the Security Interest created hereunder.
(x) Each Debtor was organized and remains organized solely under the laws
of the state set forth next to such Debtor's name in the first paragraph of this
Agreement. Schedule D attached hereto sets forth each Debtor's organizational
identification number or, if any Debtor does not have one, states that one does
not exist.
(y) (i) The actual name of each Debtor is the name set forth in the
preamble above; (ii) no Debtor has any trade names except as set forth on
Schedule E attached hereto; (iii) no Debtor has used any name other than that
stated in the preamble hereto or as set forth on Schedule E for the preceding
five years; and (iv) no entity has merged into any Debtor or been acquired by
any Debtor within the past five years except as set forth on Schedule E.
(z) At any time and from time to time that any Collateral (other than,
until the payment in full of all of the obligations and liabilities of the
Company under the Seller Note Documents and of Farequest under the Farequest
Note Documents, Collateral subject to a Prior Lien) consists of instruments,
certificated securities or other items that require or permit possession by the
secured party to perfect the security interest created hereby, the applicable
Debtor shall deliver such Collateral to the Agent for the benefit of the Secured
Parties.
(aa) Each Debtor, in its capacity as issuer, hereby agrees to comply with
any and all orders and instructions of Agent regarding the Pledged Interests
consistent with the terms of this Agreement without the further consent of any
Debtor as contemplated by Section 8-106 (or any successor section) of the UCC,
except to the extent such Debtor is subject to any obligation to comply with any
orders or instructions of a Seller Note holder or the Farequest Note holder with
respect to Pledged Interests subject to a Prior Lien. Further, each Debtor
agrees that it shall not enter into a similar agreement (or one that would
confer "control" within the meaning of Article 8 of the UCC), which is senior or
pari passu to this Agreement, with any other person or entity, other than the
Seller Note Holders, the Farequest Note holder and their respective
representatives.
(bb) Each Debtor shall cause all tangible chattel paper constituting
Collateral (other than, until the payment in full of the obligations and
liabilities of the Company under the Seller Note Documents and of Farequest
under the Farequest Note Documents, tangible chattel paper subject to a Prior
Lien) to be delivered to Agent, or, if such delivery is not possible, then to
cause such tangible chattel paper to contain a legend noting that it is subject
to the security interest created by this Agreement. To the extent that any
Collateral consists of electronic chattel paper (other than, until the payment
in full of all of the obligations and liabilities of the Company under the
Seller Note Documents and of Farequest under the Farequest Note Documents,
electronic chattel paper subject to a Prior Lien), the applicable Debtor shall
cause the underlying chattel paper to be "marked" within the meaning of Section
9-105 of the UCC (or successor section thereto).
12
(cc) To the extent that any Collateral consists of letter-of-credit rights
(other than, until the payment in full of all of the obligations and liabilities
of the Company under the Seller Note Documents and of Farequest under the
Farequest Note Documents, letter-of-credit rights subject to a Prior Lien), the
applicable Debtor shall cause the issuer of each underlying letter-of-credit to
consent to an assignment of the proceeds thereof to the Secured Parties.
(dd) If there is any investment property or deposit account included as
Collateral that can be perfected by "control" through an account control
agreement (other than, until the payment in full of all of the obligations and
liabilities of the Company under the Seller Note Documents and of Farequest
under the Farequest Note Documents, Collateral that is subject to a Prior Lien),
upon the request of the Agent, the applicable Debtor shall cause such an account
control agreement, in form and substance in each case satisfactory to the Agent,
to be entered into and delivered to the Agent for the benefit of the Secured
Parties.
(ee) To the extent that any Collateral (other than, until the payment in
full of all of the obligations and liabilities of the Company under the Seller
Note Documents and of Farequest under the Farequest Note Documents, Collateral
that is in the possession of the Seller Note holders, the Farequest Note holder
or their representatives and is subject to a Prior Lien) is in the possession of
any third party, the applicable Debtor shall join with the Secured Parties in
notifying such third party of the Security Interest in such Collateral created
hereunder and shall use its commercially reasonable efforts to obtain an
acknowledgement and agreement from such third party with respect to the
Collateral, in form and substance reasonably satisfactory to the Agent.
(ff) If any Debtor shall at any time hold or acquire a commercial tort
claim, such Debtor shall promptly notify the Agent in a writing signed by such
Debtor of the particulars thereof and grant to the Agent, for the benefit of the
Secured Parties, in such writing a security interest therein and in the proceeds
thereof, which security interest shall be subject to the Prior Liens, all upon
the terms of this Agreement, with such writing to be in form and substance
reasonably satisfactory to the Agent.
(gg) Each Debtor shall immediately provide written notice to the Agent of
any and all accounts which arise out of contracts with any governmental
authority and, to the extent (i) such accounts are not subject to a Prior Lien
and (ii) necessary to perfect or continue the perfected status of the Security
Interest in such accounts and proceeds thereof, shall execute and deliver to the
Agent, for the benefit of the Secured Parties, an assignment of claims for such
accounts and cooperate with the Agent in taking any other steps required, in its
judgment, under the Federal Assignment of Claims Act or any similar federal,
state or local statute or rule to perfect or continue the perfected status of
the Security Interest in such accounts and proceeds thereof.
13
(hh) Each Debtor shall cause each subsidiary of such Debtor formed
subsequent to the date hereof (an "Additional Debtor") to immediately execute
and deliver a Security Agreement in substantially the form of this Agreement,
pursuant to which security agreement such Additional Debtor shall grant a
perfected security interest in the Collateral of such Additional Debtor, which
security interest shall be a first-priority perfected security interest, subject
only to Permitted Liens (including the Prior Liens); provided, that if any of
the Collateral of such Additional Debtor was acquired for consideration
consisting of, among other things, one or more promissory notes, such security
interest may be a second-priority perfected security interest, subject only to
Permitted Liens (including the Prior Liens) and the liens and security interests
of the holder(s) of any such promissory notes. The Additional Debtor shall also
deliver such opinions of counsel, authorizing resolutions, good standing
certificates, incumbency certificates, organizational documents, financing
statements and other information and documentation as the Agent may reasonably
request.
(ii) To the extent not inconsistent with the obligations of the Debtors
with respect to Pledged Securities subject to the Prior Liens, each Debtor
shall, subject to any and all fiduciary duties applicable to such Debtor (and
the board of directors or other governing body of such Debtor), vote the Pledged
Securities to comply with the covenants and agreements set forth herein and in
the Debentures.
(jj) Each Debtor shall register the pledge of the applicable Pledged
Securities on the books of such Debtor. Each Debtor shall notify each issuer of
Pledged Securities to register the pledge of the applicable Pledged Securities
in the name of the Agent, for the benefit of the Secured Parties, on the books
of such issuer. Further, except with respect to certificated securities subject
to a Prior Lien until the payment in full of all of the obligations and
liabilities of the Company under the Seller Note Documents and of Farequest
under the Farequest Note Documents, the applicable Debtor shall deliver to Agent
an acknowledgement of pledge (which, where appropriate, shall comply with the
requirements of the relevant UCC with respect to perfection by registration)
signed by the issuer of the applicable Pledged Securities, which acknowledgement
shall confirm that: (a) it has registered the pledge on its books and records;
and (b) at any time directed by Agent during the continuation of an Event of
Default, such issuer will transfer the record ownership of such Pledged
Securities into the name of any designee of Agent, will take such steps as may
be necessary to effect the transfer, and will comply with all other instructions
of Agent regarding such Pledged Securities without the further consent of the
applicable Debtor.
14
(kk) In the event that, upon the occurrence of an Event of Default, Agent
shall sell all or any of the Pledged Securities not subject to a Prior Lien to
another party or parties (herein called the "Transferee") or shall purchase or
retain all or any of the Pledged Securities not subject to a Prior Lien, each
Debtor shall, to the extent applicable: (i) deliver to Agent or the Transferee,
as the case may be, the articles of incorporation, bylaws, minute books, stock
certificate books, corporate seals, deeds, leases, indentures, agreements,
evidences of indebtedness, books of account, financial records and all other
Organizational Documents and records of the applicable issuer; (ii) use
commercially reasonable efforts to obtain resignations of the persons then
serving as officers and directors of the applicable issuer, if so requested; and
(iii) use commercially reasonable efforts to obtain any approvals that are
required by any governmental or regulatory body in order to permit the sale of
the Pledged Securities to the Transferee or the purchase or retention of the
Pledged Securities by Agent and allow the Transferee or Agent to continue the
business of the applicable issuer.
(ll) Without limiting the generality of the other obligations of the
Debtors hereunder, each Debtor shall promptly (i) cause to be registered at the
United States Copyright Office all of its material copyrights and (ii) give the
Agent notice whenever it acquires (whether absolutely or by license) or creates
any additional material Intellectual Property.
(mm) Subject to the rights and remedies of the Seller Note holders and
Farequest Note holder with respect to Collateral subject to the Prior Liens,
each Debtor will from time to time, at the joint and several expense of the
Debtors, promptly execute and deliver all such further instruments and
documents, and take all such further action as may be necessary or desirable, or
as the Agent, for the benefit of the Secured Parties, may reasonably request, in
order to perfect and protect any security interest granted or purported to be
granted hereby or to enable the Agent, for the benefit of the Secured Parties,
to exercise and enforce its rights and remedies hereunder and with respect to
any Collateral or to otherwise carry out the purposes of this Agreement.
(nn) Schedule F attached hereto lists all of the patents, patent
applications, trademarks, trademark applications, registered copyrights, and
domain names owned by any of the Debtors as of the date hereof. Schedule F lists
all material licenses in favor of any Debtor for the use of any patents,
trademarks, copyrights and domain names as of the date hereof. All material
patents and trademarks of the Debtors have been duly recorded at the United
States Patent and Trademark Office and all material copyrights of the Debtors
have been duly recorded at the United States Copyright Office.
(oo) Except as set forth on Schedule G attached hereto, none of the
account debtors or other persons or entities obligated on any of the Collateral
is a governmental authority covered by the Federal Assignment of Claims Act or
any similar federal, state or local statute or rule in respect of such
Collateral.
15
5. Effect of Pledge on Certain Rights. If any of the Collateral subject to
this Agreement consists of nonvoting equity or ownership interests (regardless
of class, designation, preference or rights) that may be converted into voting
equity or ownership interests upon the occurrence of certain events (including,
without limitation, upon the transfer of all or any of the other stock or assets
of the issuer), it is agreed that the pledge of such equity or ownership
interests pursuant to this Agreement or the enforcement of any of Agent's rights
hereunder shall not be deemed to be the type of event which would trigger such
conversion rights notwithstanding any provisions in the Organizational Documents
or agreements to which any Debtor is subject or to which any Debtor is party.
6. Defaults. The following events shall be "Events of Default":
(a) The occurrence of an Event of Default (as defined in the Debenture)
under the Debenture;
(b) Any representation or warranty of any Debtor in this Agreement shall
prove to have been incorrect in any material respect when made or deemed made;
(c) The failure by any Debtor to observe or perform any of its obligations
hereunder for five (5) days after delivery to such Debtor of written notice of
such failure by or on behalf of the Agent unless such default is capable of cure
but cannot be cured within such time frame and such Debtor is using commercially
reasonable efforts to cure same in a timely fashion; or
(d) If any provision of this Agreement shall at any time for any reason be
declared to be null and void, or the validity or enforceability thereof shall be
contested by any Debtor, or a proceeding shall be commenced by any Debtor, or by
any governmental authority having jurisdiction over any Debtor, seeking to
establish the invalidity or unenforceability thereof, or any Debtor shall deny
that any Debtor has any liability or obligation purported to be created under
this Agreement.
7. Duty To Hold In Trust.
(a) Upon the occurrence of an Event of Default, each Debtor shall, upon
receipt of any revenue, income, dividend, interest or other sums subject to the
Security Interest, whether payable pursuant to the Debenture or otherwise, or of
any check, draft, note, trade acceptance or other instrument evidencing an
obligation to pay any such sum (in each case, to the extent not subject to a
Prior Lien), hold the same in trust for the Agent, for the benefit of the
Secured Parties, and shall forthwith endorse and transfer any such sums or
instruments, or both, to the Agent, for the benefit of the Secured Parties, for
application to the Obligations as set forth in Section 9 hereof.
16
(b) If any Debtor shall become entitled to receive or shall receive any
securities or other property (including, without limitation, shares of Pledged
Securities or instruments representing Pledged Securities acquired after the
date hereof, or any options, warrants, rights or other similar property or
certificates representing a dividend, or any distribution in connection with any
recapitalization, reclassification or increase or reduction of capital, or
issued in connection with any reorganization of such Debtor) in respect of the
Pledged Securities (whether as an addition to, in substitution of, or in
exchange for, such Pledged Securities or otherwise), in each case, to the extent
not subject to a Prior Lien, such Debtor agrees to (i) accept the same as the
agent of the Agent, for the benefit of the Secured Parties; (ii) hold the same
in trust on behalf of and for the benefit of the Agent, for the benefit of the
Secured Parties; and (iii) to deliver any and all certificates or instruments
evidencing the same to Agent, on or before the close of business on the fifth
business day following the receipt thereof by such Debtor, in the exact form
received together with the Necessary Endorsements, to be held by Seller Note
Holders or Agent, as the case may be, subject to the terms of this Agreement and
the rights and remedies of the Seller Note holders and Farequest Note holder
with respect to Collateral subject to a Prior Lien.
8. Rights and Remedies Upon Default.
(a) Subject to the rights and remedies of the Seller Note holders and
Farequest Note holder with respect to Collateral subject to a Prior Lien, upon
the occurrence of an Event of Default, the Agent, for the benefit of the Secured
Parties, shall have the right to exercise all of the remedies conferred
hereunder and under the Debentures, and the Agent for the benefit of the Secured
Parties, shall have all the rights and remedies of a secured party under the
UCC. Without limitation, the Agent, for the benefit of the Secured Parties,
shall have the following rights and powers:
(i) The Agent, for the benefit of the Secured Parties, shall have
the right to take possession of the Collateral and, for that purpose,
enter, with the aid and assistance of any person, any premises where the
Collateral, or any part thereof, is or may be placed and remove the same,
and each Debtor shall assemble the Collateral and make it available to the
Agent at places which the Agent shall reasonably select, whether at such
Debtor's premises or elsewhere, and make available to the Agent, without
rent, all of such Debtor's respective premises and facilities for the
purpose of the Agent taking possession of, removing or putting the
Collateral in saleable or disposable form.
17
(ii) Upon notice to the Debtors by Agent, all rights of each Debtor
to exercise the voting and other consensual rights over the Pledged
Securities which it would otherwise be entitled to exercise and all rights
of each Debtor to receive the dividends and interest which it would
otherwise be authorized to receive and retain, shall cease. Upon such
notice, Agent shall, subject to the rights and remedies of the Seller Note
holders and Farequest Note holder with respect to Collateral subject to a
Prior Lien, have the right to receive any interest, cash dividends or
other payments on the Collateral and, at the option of Agent, but subject
to the rights and remedies of the Seller Note holders and Farequest Note
holder with respect to Collateral subject to a Prior Lien, to exercise in
such Agent's discretion all voting rights pertaining thereto. Without
limiting the generality of the foregoing, Agent shall, subject to the
rights and remedies of the Seller Note holders and Farequest Note holder
with respect to Collateral subject to a Prior Lien, have the right (but
not the obligation) to exercise all rights with respect to the Collateral
as if it were the sole and absolute owners thereof, including, without
limitation, to vote and/or to exchange, at its sole discretion, any or all
of the Collateral in connection with a merger, reorganization,
consolidation, recapitalization or other readjustment concerning or
involving the Collateral or any Debtor or any of its direct or indirect
subsidiaries.
(iii) The Agent, for the benefit of the Secured Parties, shall have
the right to operate the business of each Debtor using the Collateral and
shall have the right to assign, sell, lease or otherwise dispose of and
deliver all or any part of the Collateral, at public or private sale or
otherwise, either with or without special conditions or stipulations, for
cash or on credit or for future delivery, in such parcel or parcels and at
such time or times and at such place or places, and upon such terms and
conditions as the Agent may deem commercially reasonable, all without
(except as shall be required by applicable statute and cannot be waived)
advertisement or demand upon or notice to any Debtor or right of
redemption of a Debtor, which are hereby expressly waived. Upon each such
sale, lease, assignment or other transfer of Collateral, the Agent may,
unless prohibited by applicable law which cannot be waived, purchase all
or any part of the Collateral being sold, free from and discharged of all
trusts, claims, right of redemption and equities of any Debtor, which are
hereby waived and released.
(iv) The Agent, for the benefit of the Secured Parties, shall have
the right (but not the obligation) to notify any account debtors and any
obligors under instruments or accounts (other than instruments or accounts
subject to the Prior Liens) to make payments directly to the Agent, for
the benefit of the Secured Parties, for application to the Obligations as
set forth in Section 9 hereof, and to enforce the Debtors' rights against
such account debtors and obligors.
18
(v) The Agent, for the benefit of the Secured Parties, may (but is
not obligated to) direct any financial intermediary or any other person or
entity holding any investment property (other than investment property
subject to a Prior Lien) to transfer the same to the Agent or its
designee.
(vi) The Secured Parties may (but are not obligated to) transfer any
or all Intellectual Property registered in the name of any Debtor at the
United States Patent and Trademark Office and/or Copyright Office into the
name of the Agent, for the benefit of the Secured Parties, or any designee
or any purchaser of any Collateral.
(b) The Agent shall comply with any applicable law in connection with a
disposition of Collateral and such compliance will not be considered adversely
to affect the commercial reasonableness of any sale of the Collateral. The Agent
may sell the Collateral without giving any warranties and may specifically
disclaim such warranties. If the Agent sells any of the Collateral on credit,
the Debtors will only be credited with payments actually made by the purchaser.
In addition, each Debtor waives any and all rights that it may have to a
judicial hearing in advance of the enforcement of any of the Agent's rights and
remedies hereunder, including, without limitation, its right upon the occurrence
of an Event of Default to take immediate possession of the Collateral and to
exercise its rights and remedies with respect thereto.
(c) For the purpose of enabling the Agent to further exercise rights and
remedies under this Section 8 or elsewhere provided by agreement or applicable
law, each Debtor hereby grants to the Agent, for the benefit of the Secured
Parties, an irrevocable, nonexclusive license (exercisable without payment of
royalty or other compensation to such Debtor) to use, license or sublicense upon
the occurrence of an Event of Default, any Intellectual Property now owned or
hereafter acquired by such Debtor, and wherever the same may be located, and
including in such license access to all media in which any of the licensed items
may be recorded or stored and to all computer software and programs used for the
compilation or printout thereof.
9. Applications of Proceeds. The proceeds of any such sale, lease or other
disposition of the Collateral hereunder shall be applied first, to the expenses
of retaking, holding, storing, processing and preparing for sale, selling, and
the like (including, without limitation, any taxes, fees and other costs
incurred in connection therewith) of the Collateral, to the reasonable
attorneys' fees and expenses incurred by the Secured Parties in enforcing their
rights hereunder and in connection with collecting, storing and disposing of the
Collateral, and then to satisfaction of the Obligations pro rata among the
Secured Parties (based on then-outstanding principal amounts of Debentures at
the time of any such determination), and to the payment of any other amounts
required by applicable law, after which the Agent or the Secured Parties shall
pay to the applicable Debtor any surplus proceeds. To the extent permitted by
applicable law, each Debtor waives all claims, damages and demands against the
Secured Parties arising out of the repossession, removal, retention or sale of
the Collateral, unless due solely to the gross negligence or willful misconduct
of the Secured Parties as determined by a final judgment (not subject to further
appeal) of a court of competent jurisdiction.
19
10. Securities Law Provision. Each Debtor recognizes that Agent may be
limited in its ability to effect a sale to the public of all or part of the
Pledged Securities by reason of certain prohibitions in the Securities Act of
1933, as amended, or other federal or state securities laws (collectively, the
"Securities Laws"), and may be compelled to resort to one or more sales to a
restricted group of purchasers who may be required to agree to acquire the
Pledged Securities for their own account, for investment and not with a view to
the distribution or resale thereof. Each Debtor agrees that sales so made may be
at prices and on terms less favorable than if the Pledged Securities were sold
to the public, and that Agent has no obligation to delay the sale of any Pledged
Securities for the period of time necessary to register the Pledged Securities
for sale to the public under the Securities Laws. Each Debtor shall cooperate
with Agent in its attempt to satisfy any requirements under the Securities Laws
(including, without limitation, registration thereunder if requested by Agent)
applicable to the sale of the Pledged Securities by Agent.
11. Costs and Expenses. Each Debtor agrees to pay all reasonable
out-of-pocket fees, costs and expenses incurred in connection with any filing
required hereunder, including without limitation, any financing statements
pursuant to the UCC, continuation statements, partial releases and/or
termination statements related thereto or any expenses of any searches
reasonably required by the Agent. The Debtors shall also pay all other claims
and charges which in the reasonable opinion of the Agent might prejudice,
imperil or otherwise affect the Collateral or the Security Interest therein. The
Debtors will also, upon demand, pay to the Agent the amount of any and all
reasonable expenses, including the reasonable fees and expenses of its counsel
and of any experts and agents, which the Agent may incur in connection with (i)
the enforcement of this Agreement, (ii) the custody or preservation of, or the
sale of, collection from, or other realization upon, any of the Collateral, or
(iii) the exercise or enforcement of any of the rights of the Secured Parties
under the Debentures. Until so paid, any fees payable hereunder shall be added
to the principal amount of the Debentures.
12. Responsibility for Collateral. The Debtors assume all liabilities and
responsibility in connection with all Collateral, and the Obligations shall in
no way be affected or diminished by reason of the loss, destruction, damage or
theft of any of the Collateral or its unavailability for any reason. Without
limiting the generality of the foregoing, (a) neither the Agent nor any Secured
Party (i) has any duty (either before or after an Event of Default) to collect
any amounts in respect of the Collateral or, beyond the safe custody thereof, to
preserve any rights relating to the Collateral, or (ii) has any obligation to
clean-up or otherwise prepare the Collateral for sale, and (b) each Debtor shall
remain obligated and liable under each contract or agreement included in the
Collateral to be observed or performed by such Debtor thereunder. Neither the
Agent nor any Secured Party shall have any obligation or liability under any
such contract or agreement by reason of or arising out of this Agreement or the
receipt by the Agent or any Secured Party of any payment relating to any of the
Collateral, nor shall the Agent or any Secured Party be obligated in any manner
to perform any of the obligations of any Debtor under or pursuant to any such
contract or agreement, to make inquiry as to the nature or sufficiency of any
payment received by the Agent or any Secured Party in respect of the Collateral
or as to the sufficiency of any performance by any party under any such contract
or agreement, to present or file any claim, to take any action to enforce any
performance or to collect the payment of any amounts which may have been
assigned to the Agent or to which the Agent or any Secured Party may be entitled
at any time or times.
20
13. Security Interest Absolute. All rights of the Secured Parties and all
obligations of the Debtors hereunder, shall be absolute and unconditional,
irrespective of: (a) any lack of validity or enforceability of this Agreement,
the Debentures or any agreement entered into in connection with the foregoing,
or any portion hereof or thereof; (b) any change in the time, manner or place of
payment or performance of, or in any other term of, all or any of the
Obligations, or any other amendment or waiver of or any consent to any departure
from the Debentures or any other agreement entered into in connection with the
foregoing; (c) any exchange, release or nonperfection of any of the Collateral,
or any release or amendment or waiver of or consent to departure from any other
collateral for, or any guaranty, or any other security, for all or any of the
Obligations; (d) any action by the Secured Parties to obtain, adjust, settle and
cancel in its sole discretion any insurance claims or matters made or arising in
connection with the Collateral; or (e) any other circumstance which might
otherwise constitute any legal or equitable defense available to a Debtor (other
than payment in full of the Obligations (other than contingent indemnification
obligations for which no claims shall have been asserted)), or a discharge of
all or any part of the Security Interest created hereunder. Until the
Obligations shall have been paid and performed in full, the rights of the
Secured Parties shall continue even if the Obligations are barred for any
reason, including, without limitation, the running of the statute of limitations
or bankruptcy. Each Debtor expressly waives presentment, protest, notice of
protest, demand, notice of nonpayment and demand for performance. In the event
that at any time any transfer of any Collateral or any payment received by the
Secured Parties hereunder shall be deemed by final order of a court of competent
jurisdiction to have been a voidable preference or fraudulent conveyance under
the bankruptcy or insolvency laws of the United States, or shall be deemed to be
otherwise due to any party other than the Secured Parties, then, in any such
event, each Debtor's obligations hereunder shall survive termination of this
Agreement, and shall not be discharged or satisfied by any prior payment thereof
and/or termination of this Agreement, but shall remain a valid and binding
obligation enforceable in accordance with the terms and provisions hereof. Each
Debtor waives all right to require the Secured Parties to proceed against any
other person or entity or to apply any Collateral which the Secured Parties may
hold at any time, or to marshal assets, or to pursue any other remedy. Each
Debtor waives any defense arising by reason of the application of the statute of
limitations to any obligation secured hereby.
14. Term of Agreement. This Agreement and the Security Interest created
hereunder shall terminate on the date on which all Obligations (other than
contingent indemnification obligations for which no claims shall have been
asserted) have been paid in full; provided, however, that all indemnities of the
Debtors contained in this Agreement (including, without limitation, Annex B
hereto) shall survive and remain operative and in full force and effect
regardless of the termination of this Agreement.
21
15. Power of Attorney; Further Assurances.
(a) Each Debtor authorizes the Agent, for the benefit of the Secured
Parties, and does hereby make, constitute and appoint the Agent, for the benefit
of the Secured Parties, and its officers, agents, successors or assigns with
full power of substitution, as such Debtor's true and lawful attorney-in-fact,
with power, in the name of the various Secured Parties or such Debtor, upon the
occurrence and during the continuance of an Event of Default, subject to the
rights and remedies of the Seller Note holders and Farequest Note holder with
respect to Collateral subject to the Prior Liens, (i) to endorse any note,
checks, drafts, money orders or other instruments of payment (including payments
payable under or in respect of any policy of insurance) in respect of the
Collateral not subject to a Prior Lien that may come into possession of the
Secured Parties; (ii) to sign and endorse any financing statement pursuant to
the UCC or any invoice, freight or express ▇▇▇▇, ▇▇▇▇ of lading, storage or
warehouse receipts, drafts against debtors, assignments, verifications and
notices in connection with accounts, and other documents relating to Collateral
to the extent such Collateral is not subject to a Prior Lien; (iii) to pay or
discharge taxes or Liens at any time levied or placed on or threatened against
the Collateral; (iv) to demand, collect, receipt for, compromise, settle and ▇▇▇
for monies due in respect of Collateral not subject to the Prior Liens; (v) to
transfer any Intellectual Property not subject to a Prior Lien or provide
licenses respecting any such Intellectual Property; and (vi) generally, at the
option of the Agent, for the benefit of the Secured Parties, and at the expense
of the Debtors, at any time, or from time to time, to execute and deliver any
and all documents and instruments and to do all acts and things which the Agent
deem reasonably necessary to protect, preserve and realize upon the Collateral
and the Security Interest created hereunder in order to effect the intent of
this Agreement and the Debentures all as fully and effectually as the Debtors
might or could do; and each Debtor hereby ratifies all that said attorney shall
lawfully do or cause to be done in accordance with the terms hereof. This power
of attorney is coupled with an interest and shall be irrevocable for the term of
this Agreement and thereafter as long as any of the Obligations (other than
contingent indemnification obligations for which no claims shall have been
asserted) shall be outstanding. Without limiting the generality of the
foregoing, upon the occurrence and during the continuance of an Event of
Default, subject to the rights of the Seller Note holders and the Farequest Note
holder with respect to Collateral subject to the Prior Liens, Agent, for the
benefit of the Secured Parties, is specifically authorized to execute and file
any applications for or instruments of transfer and assignment of any patents,
trademarks, copyrights or other Intellectual Property with the United States
Patent and Trademark Office and the United States Copyright Office.
22
(b) On a continuing basis, each Debtor will make, execute, acknowledge,
deliver, file and record, as the case may be, with the proper filing and
recording agencies in any jurisdiction, including, without limitation, the
jurisdictions indicated on Schedule C attached hereto, all such instruments, and
take all such action as may reasonably be deemed necessary or advisable, or as
reasonably requested by the Agent, for the benefit of the Secured Parties, to
perfect the Security Interest created hereunder and otherwise to carry out the
intent and purposes of this Agreement, or for assuring and confirming to the
Agent the grant or perfection of a security interest in such portion of the
Collateral that consists of the type of property in which a security interest
may be perfected by the filing of a financing statement under the UCC.
(c) Each Debtor hereby irrevocably appoints the Agent, for the benefit of
the Secured Parties, as such Debtor's attorney-in-fact, with full authority in
the place and instead of such Debtor and in the name of such Debtor, from time
to time in the Agent's discretion, subject to the rights of the Seller Note
holders and the Farequest Note holder with respect to Collateral subject to the
Prior Liens, to take any action and to execute any instrument which the Agent
may deem reasonably necessary or advisable to accomplish the purposes of this
Agreement, including the filing, in its sole discretion, of one or more
financing or continuation statements and amendments thereto, relative to any of
the Collateral without the signature of such Debtor where permitted by law,
which financing statements may (but need not) describe the Collateral as "all
assets" or "all personal property" or words of like import, and ratifies all
such actions taken by the Agent. This power of attorney is coupled with an
interest and shall be irrevocable for the term of this Agreement and thereafter
as long as any of the Obligations (other than contingent indemnification
obligations for which no claims shall have been asserted) shall be outstanding.
16. Notices. All notices, requests, demands and other communications
hereunder shall be subject to the notice provision of the Purchase Agreement.
17. Other Security. To the extent that the Obligations are now or
hereafter secured by property other than the Collateral or by the guarantee,
endorsement or property of any other person, firm, corporation or other entity,
then the Agent, for the benefit of the Secured Parties, shall have the right, in
its sole discretion, to pursue, relinquish, subordinate, modify or take any
other action with respect thereto, without in any way modifying or affecting any
of the Secured Parties' rights and remedies hereunder.
18. Appointment of Agent. The Secured Parties hereby appoint
___________________ to act as their agent (in such capacity, "Agent") for
purposes of exercising any and all rights and remedies of the Secured Parties
hereunder. Such appointment shall continue until revoked in writing by a
Majority in Interest, at which time a Majority in Interest shall appoint a new
Agent; provided, that _______________________ may not be removed as Agent unless
__________________ shall then hold less than $____________ principal amount of
Debentures; provided further that such removal may occur only if each of the
other Secured Parties shall then hold not less than $______________ principal
amount of Debentures. The Agent shall have the rights, responsibilities and
immunities set forth in Annex B hereto.
23
19. Miscellaneous.
(a) No course of dealing between the Debtors, on the one hand, and the
Secured Parties and the Agent, on the other hand, nor any failure to exercise,
nor any delay in exercising, on the part of the Secured Parties, any right,
power or privilege hereunder or under the Debentures shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, power or
privilege hereunder or thereunder preclude any other or further exercise thereof
or the exercise of any other right, power or privilege.
(b) All of the rights and remedies of the Secured Parties and the Agent
with respect to the Collateral, whether established hereby or by the Debentures
or by any other agreements, instruments or documents or by law shall be
cumulative and may be exercised singly or concurrently.
(c) This Agreement constitutes the entire agreement of the parties with
respect to the subject matter hereof and is intended to supersede all prior
negotiations, understandings and agreements with respect thereto. Except as
specifically set forth in this Agreement, no provision of this Agreement may be
modified or amended except by a written agreement specifically referring to this
Agreement and signed by the Debtors and the Agent, on behalf of the Secured
Parties hereto.
(d) In the event any provision of this Agreement is held to be invalid,
prohibited or unenforceable in any jurisdiction for any reason, unless such
provision is narrowed by judicial construction, this Agreement shall, as to such
jurisdiction, be construed as if such invalid, prohibited or unenforceable
provision had been more narrowly drawn so as not to be invalid, prohibited or
unenforceable. If, notwithstanding the foregoing, any provision of this
Agreement is held to be invalid, prohibited or unenforceable in any
jurisdiction, such provision, as to such jurisdiction, shall be ineffective to
the extent of such invalidity, prohibition or unenforceability without
invalidating the remaining portion of such provision or the other provisions of
this Agreement and without affecting the validity or enforceability of such
provision or the other provisions of this Agreement in any other jurisdiction.
(e) No waiver of any breach or default or any right under this Agreement
shall be considered valid unless in writing and signed by the party giving such
waiver, and no such waiver shall be deemed a waiver of any subsequent breach or
default or right, whether of the same or similar nature or otherwise.
24
(f) This Agreement shall be binding upon and inure to the benefit of each
party hereto and its successors and assigns.
(g) Each party shall take such further action and execute and deliver such
further documents as may be necessary or appropriate in order to carry out the
provisions and purposes of this Agreement.
(h) All questions concerning the construction, validity, enforcement and
interpretation of this Agreement shall be governed by and construed and enforced
in accordance with the internal laws of the State of New York, without regard to
the principles of conflicts of law thereof. Each Debtor agrees that all
proceedings concerning the interpretations, enforcement and defense of the
transactions contemplated by this Agreement and the Debenture (whether brought
against a party hereto or its respective affiliates, directors, officers,
shareholders, partners, members, employees or agents) shall be commenced
exclusively in the state and federal courts sitting in the City of New York,
Borough of Manhattan. Each Debtor hereby irrevocably submits to the exclusive
jurisdiction of the state and federal courts sitting in the City of New York,
Borough of Manhattan for the adjudication of any dispute hereunder or in
connection herewith or with any transaction contemplated hereby or discussed
herein, and hereby irrevocably waives, and agrees not to assert in any
proceeding, any claim that it is not personally subject to the jurisdiction of
any such court, that such proceeding is improper. Each party hereto hereby
irrevocably waives personal service of process and consents to process being
served in any such proceeding by mailing a copy thereof via registered or
certified mail or overnight delivery (with evidence of delivery) to such party
at the address in effect for notices to it under this Agreement and agrees that
such service shall constitute good and sufficient service of process and notice
thereof. Nothing contained herein shall be deemed to limit in any way any right
to serve process in any manner permitted by law. Each party hereto hereby
irrevocably waives, to the fullest extent permitted by applicable law, any and
all right to trial by jury in any legal proceeding arising out of or relating to
this Agreement or the transactions contemplated hereby. If any party shall
commence a proceeding to enforce any provisions of this Agreement, then the
prevailing party in such proceeding shall be reimbursed by the other party for
its reasonable attorney's fees and other costs and expenses incurred with the
investigation, preparation and prosecution of such proceeding.
(i) This Agreement may be executed in any number of counterparts, each of
which when so executed shall be deemed to be an original and, all of which taken
together shall constitute one and the same Agreement. In the event that any
signature is delivered by facsimile transmission, such signature shall create a
valid binding obligation of the party executing (or on whose behalf such
signature is executed) the same with the same force and effect as if such
facsimile signature were the original thereof.
25
(j) All Debtors shall jointly and severally be liable for the obligations
of each Debtor to the Secured Parties hereunder.
(k) Each Debtor shall indemnify, reimburse and hold harmless the Secured
Parties and their respective partners, members, shareholders, officers,
directors, employees and agents (collectively, "Indemnitees") from and against
any and all losses, claims, liabilities, damages, penalties, suits, costs and
expenses, of any kind or nature, (including fees relating to the cost of
investigating and defending any of the foregoing) imposed on, incurred by or
asserted against such Indemnitee in any way related to or arising from or
alleged to arise from this Agreement or the Collateral, except any such losses,
claims, liabilities, damages, penalties, suits, costs and expenses which result
from the gross negligence or willful misconduct of the Indemnitee as determined
by a final, nonappealable decision of a court of competent jurisdiction. This
indemnification provision is in addition to, and not in limitation of, any other
indemnification provision in the Debentures, the Purchase Agreement or any other
agreement, instrument or other document executed or delivered in connection
herewith or therewith.
(l) Nothing in this Agreement shall be construed to subject Agent or any
Secured Party to liability as a partner in any Debtor or any if its direct or
indirect subsidiaries that is a partnership or as a member in any Debtor or any
of its direct or indirect subsidiaries that is a limited liability company, nor
shall Agent or any Secured Party be deemed to have assumed any obligations under
any partnership agreement or limited liability company agreement, as applicable,
of any such Debtor or any if its direct or indirect subsidiaries or otherwise,
unless and until any such Secured Party exercises its right to be substituted
for such Debtor as a partner or member, as applicable, pursuant hereto.
(m) To the extent that the grant of the Security Agreement and the
enforcement of the terms hereof require the consent, approval or action of any
partner or member, as applicable, of any Debtor or any direct or indirect
subsidiary of any Debtor or compliance with any provisions of any of the
Organizational Documents, the Debtors hereby grant such consent and approval and
waive any such noncompliance with the terms of said documents.
(n) The Security Interest created hereunder and the exercise by the Agent
and the Secured Parties of their rights and remedies hereunder are subject to
the Prior Liens and the rights and remedies of the holders of the Seller Notes
and the Farequest Note under the Seller Note Documents and the Farequest Note
Documents, respectively, with respect to Collateral subject to a Prior Lien.
[Remainder of Page Intentionally Left Blank; Signature Pages Follow]
26
IN WITNESS WHEREOF, the parties hereto have caused this Security Agreement
to be duly executed on the day and year first above written.
ONETRAVEL HOLDINGS, INC., a Delaware corporation
By:\s\ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Its: President
FAREQUEST HOLDINGS, INC., a Delaware corporation
By:\s\ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Its: Vice Chairman
ONETRAVEL, INC., a Texas corporation
By:\s\ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Its: President
AGENT:
Name of Agent: __________________________
Signature of Authorized Signatory of Agent: _________________________
Name of Authorized Signatory: _________________________
Title of Authorized Signatory: __________________________
[SIGNATURE PAGE OF SECURED PARTIES FOLLOWS]
27
[SIGNATURE PAGE OF SECURED PARTY]
Name of Secured Party: __________________________
Signature of Authorized Signatory of Secured Party: _________________________
Name of Authorized Signatory: _________________________
Title of Authorized Signatory: __________________________
[SIGNATURE PAGE OF SECURED PARTIES FOLLOWS]
28
SCHEDULE A
Principal Place of Business of Debtors:
OneTravel Holdings, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Farequest Holdings, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
OneTravel, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Locations Where Collateral is Located or Stored:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇. ▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
None of OneTravel Holdings, Inc., Farequest Holdings, Inc. or OneTravel, Inc.
own any real property.
29
SCHEDULE B
None.
30
SCHEDULE C
Delaware
Texas
31
SCHEDULE D
Organizational Identification Numbers
OneTravel Holdings, Inc.
Delaware State ID # 0950439
Farequest Holdings, Inc.
Delaware State ID # 3762937
OneTravel, Inc.
Texas State ID # 0145279700
32
SCHEDULE E
Names; Mergers and Acquisitions
1. OneTravel Holdings, Inc. changed its name from RCG Companies Incorporated on
June 8, 2005.
2. RCG Companies Incorporated changed its name from eResource Capital Group,
Inc. on November 14, 2003.
3. OneTravel Holdings, Inc. acquired Farequest Holdings in February 2005 and
OneTravel, Inc. in April 2005 and also acquired Flightserve, Inc. within the
past five years.
4. Trade names are as follows:
a. ▇▇▇▇▇▇▇▇▇▇.▇▇▇
b. 1-800 cheapseats
c. ▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
d. ▇▇▇▇▇▇▇▇▇.▇▇▇
e. ▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
f. ▇▇▇▇▇▇▇▇.▇▇▇
g. ▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
33
SCHEDULE F
Intellectual Property
Patents
1. U.S. provisional patent application entitled "ON-LINE PURCHASE OF
PARTIALLY ANONYMOUS PRODUCTS," Serial No. 60/181,846, filed on February
11, 2000; converted to International Patent Cooperation Treaty US01/04221,
filed on February 8, 2001. Currently inactive. National Stage Applications
filed in - Canada, CA 2400529, on February 8, 2001 (now abandoned);
European Patent Office, EP 01907167.9, on February 8, 2001 (now
abandoned); and the United States, USSN 10/182755 on January 31, 2003
(published November 6, 2003 as US 2003/0208387).
2. U.S. provisional patent application entitled "ON-LINE PURCHASE OF
PARTIALLY ANONYMOUS PRODUCTS," Serial No. 60/186,801, filed on March 3,
2000 (inactive).
Trademarks
United States Trademarks and Trademark Applications
------ ------------------------------------- ---------- ----------------- --------------- --------------- --------------
▇▇▇▇ Filing Application No. Registration Registration Comments
Date No. Date
------ ------------------------------------- ---------- ----------------- --------------- --------------- --------------
1. ▇▇▇▇▇▇▇▇▇.▇▇▇ 4/3/00 76/016399 Abandoned
6/29/02
------ ------------------------------------- ---------- ----------------- --------------- --------------- --------------
2. TRAVELOGIX 8/28/01 76/306171 2585224 6/25/02
------ ------------------------------------- ---------- ----------------- --------------- --------------- --------------
3. ▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ 4/11/00 76/022962 Abandoned
2/21/03
------ ------------------------------------- ---------- ----------------- --------------- --------------- --------------
4. WHITE LABEL 1/10/00 75892894 2410736 12/5/00
------ ------------------------------------- ---------- ----------------- --------------- --------------- --------------
5. LOW PRICE & GREAT ADVICE 11/12/99 75846708 2434408 3/6/01
------ ------------------------------------- ---------- ----------------- --------------- --------------- --------------
6. ▇▇▇▇▇.▇▇▇ 1/6/99 75616364 2564052 4/23/02
------ ------------------------------------- ---------- ----------------- --------------- --------------- --------------
7. ▇▇▇▇▇▇▇.▇▇▇ 7/15/97 75324730 NetMedia
listed as
owner
------ ------------------------------------- ---------- ----------------- --------------- --------------- --------------
8. FAREBEATER 3/25/99 75667625 2443797 4/17/01
------ ------------------------------------- ---------- ----------------- --------------- --------------- --------------
9. RULES OF THE AIR 5/25/00 76056665 2519578 12/18/01
------ ------------------------------------- ---------- ----------------- --------------- --------------- --------------
10. ▇▇▇▇▇▇▇▇▇▇.▇▇▇ 12/6/99 2434408 Abandoned
10/19/00
------ ------------------------------------- ---------- ----------------- --------------- --------------- --------------
11. HOTELWIZ 4/20/99 75687383 2424203 1/23/01
------ ------------------------------------- ---------- ----------------- --------------- --------------- --------------
12. NETMEDIA 5/22/96 75108305 2110469 11/4/97
------ ------------------------------------- ---------- ----------------- --------------- --------------- --------------
13. ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ 6/14/00 76068599 2482097 8/28/01
------ ------------------------------------- ---------- ----------------- --------------- --------------- --------------
14. ▇▇▇▇▇▇▇▇▇.▇▇▇ 3/13/03 3194636
------ ------------------------------------- ---------- ----------------- --------------- --------------- --------------
15. TRAVELOGIX 11/30/93 1907557
------ ------------------------------------- ---------- ----------------- --------------- --------------- --------------
16. TRAVELOGIX (Stylized) 11/30/93 19009804 Abandoned
------ ------------------------------------- ---------- ----------------- --------------- --------------- --------------
17. TRAVELOGIX (Stylized) 11/30/93 1911697
------ ------------------------------------- ---------- ----------------- --------------- --------------- --------------
18. TRAVELOGIX 11/30/99 1866830 Abandoned
------ ------------------------------------- ---------- ----------------- --------------- --------------- --------------
34
19. Cheapseats Trademark
Trademarks and Trademark Applications in Other Jurisdictions
------ ----------------------------------- --------- --------------- -------------- --------------- --------------
▇▇▇▇ Filing Country Application Registration Comments
Date No. No.
------ ----------------------------------- --------- --------------- -------------- --------------- --------------
1. ▇▇▇▇▇▇▇▇▇.▇▇▇ ▇▇/▇/▇▇ ▇▇▇▇▇▇▇▇▇ 2319283 Inactive
------ ----------------------------------- --------- --------------- -------------- --------------- --------------
2. ▇▇▇▇▇▇▇▇▇.▇▇▇ 1/25/01 Brazil 823528367 Inactive
------ ----------------------------------- --------- --------------- -------------- --------------- --------------
3. ▇▇▇▇▇▇▇▇▇.▇▇▇ ▇▇/▇/▇▇ ▇▇▇▇▇▇▇▇▇ 2319284 Inactive
------ ----------------------------------- --------- --------------- -------------- --------------- --------------
4. TRAVELOGIX 10/6/03 Canada 450084
------ ----------------------------------- --------- --------------- -------------- --------------- --------------
5. TRAVELOGIX (and Design) 10/6/03 Canada 459251
------ ----------------------------------- --------- --------------- -------------- --------------- --------------
6. WHITE LABEL 7/10/00 European Union 001746924
------ ----------------------------------- --------- --------------- -------------- --------------- --------------
Copyrights
Common law copyrights in the Flifo software program and its Software.
a. Domain Names
--------------------------------------------------------------------------------
domain name domain registration expiration
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇.▇▇▇ 25-Feb-02 25-Feb-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ 19-Aug-98 18-Aug-07
--------------------------------------------------------------------------------
▇-▇▇▇▇▇-▇▇▇▇▇▇▇.▇▇▇ 25-Feb-02 25-Feb-06
--------------------------------------------------------------------------------
▇-▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇.▇▇▇ 25-Feb-02 25-Feb-06
--------------------------------------------------------------------------------
▇-▇▇▇▇▇-▇▇▇▇▇▇▇▇.▇▇▇ 25-Feb-02 25-Feb-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ 1-Dec-97 30-Nov-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ 1-Dec-97 30-Nov-06
--------------------------------------------------------------------------------
▇-▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇.▇▇▇ 25-Feb-02 25-Feb-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇.▇▇▇ 2-Feb-05 2-Feb-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇.▇▇▇ 17-Jan-96 18-Jan-11
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇.▇▇▇ 25-Feb-02 25-Feb-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ 2-Feb-05 2-Feb-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇.▇▇▇ 30-Oct-98 29-Oct-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ 1-Aug-97 31-Jul-11
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ 25-Feb-02 25-Feb-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ 25-Feb-02 25-Feb-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ 25-Feb-02 25-Feb-06
--------------------------------------------------------------------------------
35
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ 25-Feb-02 25-Feb-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇.▇▇▇ 25-Feb-02 25-Feb-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇.▇▇▇ 25-Feb-02 25-Feb-06
--------------------------------------------------------------------------------
▇-▇▇▇-▇▇▇▇▇▇▇▇-▇▇▇-▇▇▇▇▇▇▇.▇▇▇ 25-Feb-02 25-Feb-06
--------------------------------------------------------------------------------
▇-▇▇▇-▇▇▇▇▇▇▇▇-▇▇▇▇▇▇.▇▇▇ 25-Feb-02 25-Feb-06
--------------------------------------------------------------------------------
▇-▇▇▇-▇▇▇▇▇▇▇▇-▇▇▇▇▇▇.▇▇▇ 25-Feb-02 25-Feb-06
--------------------------------------------------------------------------------
▇-▇▇▇-▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇.▇▇▇ 25-Feb-02 25-Feb-06
--------------------------------------------------------------------------------
▇-▇▇▇▇▇▇▇▇-▇▇▇.▇▇▇ 25-Feb-02 25-Feb-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ 25-Feb-02 25-Feb-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ 18-Oct-05
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇-▇▇▇▇▇▇.▇▇▇ 2-Feb-05 2-Feb-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ 27-Oct-97 26-Oct-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ 27-Oct-97 26-Oct-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ 18-Oct-05
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇.▇▇▇ 18-Oct-05
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ 25-Feb-02 25-Feb-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ 7-Oct-03 7-Oct-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ 7-Oct-03 7-Oct-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ 7-Oct-03 7-Oct-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇.▇▇▇ 4-Mar-98 3-Mar-11
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ 18-Oct-05
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇.▇▇▇ 17-Oct-05
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ 2-Feb-05 2-Feb-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ 2-Feb-05 2-Feb-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇.▇▇▇ 22-Oct-99 22-Oct-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ 22-Oct-99 22-Oct-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇.▇▇▇ 30-Oct-03 29-Oct-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇.▇▇▇ 30-Oct-03 30-Oct-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇.▇▇▇▇ 30-Oct-03 30-Oct-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇.▇▇▇ 30-Oct-03 30-Oct-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇.▇▇▇ 30-Oct-03 30-Oct-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇.▇▇ 30-Oct-03 29-Oct-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇.▇▇▇ 30-Oct-03 29-Oct-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇.▇▇▇ 30-Oct-03 30-Oct-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇.▇▇▇▇ 30-Oct-03 30-Oct-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇.▇▇▇ 30-Oct-03 30-Oct-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇.▇▇▇ 30-Oct-03 30-Oct-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇.▇▇ 30-Oct-03 29-Oct-06
--------------------------------------------------------------------------------
36
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇-▇▇▇▇▇.▇▇▇ 30-Oct-03 29-Oct-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇-▇▇▇▇▇.▇▇▇▇ 30-Oct-03 30-Oct-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇-▇▇▇▇▇.▇▇▇ 30-Oct-03 30-Oct-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇-▇▇▇▇▇.▇▇▇ 30-Oct-03 30-Oct-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇-▇▇▇▇▇.▇▇ 30-Oct-03 29-Oct-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇.▇▇▇ 30-Oct-03 29-Oct-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇.▇▇▇▇ 30-Oct-03 30-Oct-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇.▇▇▇ 30-Oct-03 30-Oct-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇.▇▇▇ 30-Oct-03 30-Oct-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇.▇▇ 30-Oct-03 29-Oct-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇.▇▇▇ 30-Oct-03 30-Oct-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇.▇▇▇ 30-Oct-03 30-Oct-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇.▇▇ 30-Oct-03 29-Oct-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇.▇▇▇ 30-Oct-03 29-Oct-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇.▇▇▇ 30-Oct-03 30-Oct-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇.▇▇▇▇ 30-Oct-03 30-Oct-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇.▇▇▇ 30-Oct-03 30-Oct-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇.▇▇▇ 30-Oct-03 30-Oct-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇.▇▇ 30-Oct-03 29-Oct-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇.▇▇▇ 25-Feb-02 25-Feb-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇.▇▇▇ 4-Mar-98 3-Mar-11
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇.▇▇▇ 20-Nov-95 7-Dec-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇.▇▇▇ 20-Feb-98 6-Dec-06
--------------------------------------------------------------------------------
▇▇▇▇▇-▇▇▇▇▇▇.▇▇▇ 30-Oct-98 29-Oct-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ 2-Sep-99 2-Sep-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇.▇▇▇ 4-Mar-98 3-Mar-11
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ 25-Feb-02 25-Feb-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ 25-Feb-02 25-Feb-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ 13-Sep-96 12-Sep-07
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ 13-Sep-96 12-Sep-07
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ 27-Feb-99 6-Dec-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇.▇▇▇ 28-May-98 13-Feb-12
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ 25-Feb-02 25-Feb-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇.▇▇▇ 19-Mar-99 19-Mar-11
--------------------------------------------------------------------------------
▇▇▇▇▇▇.▇▇▇ 7-Oct-03 7-Oct-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇.▇▇▇ 2-Feb-05 2-Feb-06
--------------------------------------------------------------------------------
▇▇▇▇-▇▇▇▇▇▇.▇▇▇ 2-Feb-05 2-Feb-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇.▇▇▇ 29-Dec-98 29-Dec-06
--------------------------------------------------------------------------------
▇▇▇▇-▇▇▇▇▇▇.▇▇▇ 22-Mar-99 22-Mar-11
--------------------------------------------------------------------------------
37
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ 25-Feb-02 25-Feb-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇.▇▇▇ 7-Oct-03 7-Oct-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇.▇▇▇ 7-Oct-03 7-Oct-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ 7-Oct-03 7-Oct-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇.▇▇▇ 25-Feb-02 25-Feb-06
--------------------------------------------------------------------------------
▇▇▇▇▇.▇▇▇ 1-Nov-96 31-Oct-06
--------------------------------------------------------------------------------
▇▇▇▇▇.▇▇▇ 25-Feb-02 25-Feb-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇.▇▇▇ 18-May-98 17-May-06
--------------------------------------------------------------------------------
▇▇▇▇▇.▇▇▇ 25-Feb-02 25-Feb-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇.▇▇▇ 25-Feb-02 25-Feb-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇.▇▇▇ 1-Sep-99 1-Sep-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇.▇▇▇ 1-Sep-99 1-Sep-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ 2-Feb-05 2-Feb-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ 2-Feb-05 2-Feb-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇.▇▇▇ 18-Oct-05
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ 18-Oct-05
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇.▇▇▇ 25-Feb-02 25-Feb-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇.▇▇▇ 4-Mar-98 3-Mar-11
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ 25-Feb-02 25-Feb-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ 25-Feb-02 25-Feb-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ 25-Feb-02 25-Feb-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ 25-Feb-02 25-Feb-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇.▇▇▇ 5-Nov-98 4-Nov-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ 5-Nov-98 4-Nov-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ 5-Nov-98 4-Nov-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ 5-Nov-98 4-Nov-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇-▇▇▇▇.▇▇▇ 23-Oct-98 22-Oct-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇.▇▇▇ 25-Feb-02 25-Feb-06
--------------------------------------------------------------------------------
▇▇▇-▇▇▇▇▇▇▇▇-▇▇▇▇▇▇.▇▇▇ 30-Oct-03 29-Oct-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ 30-Oct-03 30-Oct-06
--------------------------------------------------------------------------------
▇▇▇-▇▇▇▇▇▇▇▇-▇▇▇▇▇▇.▇▇▇ 30-Oct-03 30-Oct-06
--------------------------------------------------------------------------------
▇▇▇-▇▇▇▇▇▇▇▇-▇▇▇▇▇▇.▇▇▇▇ 30-Oct-03 30-Oct-06
--------------------------------------------------------------------------------
▇▇▇-▇▇▇▇▇▇▇▇-▇▇▇▇▇▇.▇▇▇ 30-Oct-03 30-Oct-06
--------------------------------------------------------------------------------
▇▇▇-▇▇▇▇▇▇▇▇-▇▇▇▇▇▇.▇▇▇ 30-Oct-03 30-Oct-06
--------------------------------------------------------------------------------
▇▇▇-▇▇▇▇▇▇▇▇-▇▇▇▇▇▇.▇▇ 30-Oct-03 29-Oct-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇.▇▇▇ 2-Feb-05 2-Feb-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇.▇▇▇ 6-Aug-96 5-Aug-10
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇.▇▇▇ 25-Feb-02 25-Feb-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇.▇▇▇ 30-Oct-03 29-Oct-06
--------------------------------------------------------------------------------
38
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ 30-Oct-03 30-Oct-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇.▇▇▇ 30-Oct-03 30-Oct-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇.▇▇▇▇ 30-Oct-03 30-Oct-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇.▇▇▇ 30-Oct-03 30-Oct-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇.▇▇▇ 30-Oct-03 30-Oct-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇.▇▇ 30-Oct-03 29-Oct-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ 30-Oct-98 29-Oct-06
--------------------------------------------------------------------------------
▇▇▇-▇▇▇▇▇▇▇▇.▇▇▇ 30-Oct-98 29-Oct-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ 25-Feb-02 25-Feb-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ 25-Feb-02 25-Feb-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ 25-Feb-02 25-Feb-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ 25-Feb-02 25-Feb-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ 25-Feb-02 25-Feb-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ 25-Feb-02 25-Feb-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ 25-Feb-02 25-Feb-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇.▇▇▇ 25-Feb-02 25-Feb-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ 2-Feb-05 2-Feb-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ 30-Oct-98 29-Oct-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇.▇▇▇ 26-May-98 27-Feb-12
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ 7-Oct-03 7-Oct-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ 7-Oct-03 7-Oct-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ 17-Jan-99 17-Jan-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ 19-Feb-98 18-Feb-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇.▇▇▇ 7-Oct-03 7-Oct-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇.▇▇▇ 7-Oct-03 7-Oct-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇.▇▇▇ 7-Oct-03 7-Oct-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ 7-Oct-03 7-Oct-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇.▇▇▇ 18-Oct-05
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇.▇▇▇
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇.▇▇▇ 2/2/005 2-Feb-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇.▇▇▇ 18-Oct-05
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇.▇▇▇ 18-Oct-05
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇.▇▇▇ 26-Oct-98 25-Oct-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇.▇▇▇ 18-Oct-05
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ 18-Oct-05
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇.▇▇▇ 18-Oct-05
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ 18-Oct-05
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ 18-Oct-05
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ 18-Oct-05
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ 18-Oct-05
--------------------------------------------------------------------------------
39
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ 18-Oct-05
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ 18-Oct-05
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ 18-Oct-05
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ 18-Oct-05
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇.▇▇▇ 18-Oct-05
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ 18-Oct-05
--------------------------------------------------------------------------------
▇▇▇▇▇▇-▇▇▇▇.▇▇▇ 20-Nov-95 7-Dec-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇.▇▇▇ 18-Oct-05
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇.▇▇▇ 25-Feb-02 25-Feb-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇-▇▇▇▇▇▇▇▇.▇▇▇ 30-Oct-03 29-Oct-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇-▇▇▇▇▇▇▇▇.▇▇▇▇ 30-Oct-03 30-Oct-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇-▇▇▇▇▇▇▇▇.▇▇▇ 30-Oct-03 30-Oct-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ 29-Dec-03 29-Dec-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ 27-Oct-04 27-Oct-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇.▇▇▇ 25-Feb-02 25-Feb-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇.▇▇▇ 10-Dec-01 10-Dec-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ 17-Oct-97 13-Feb-12
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇.▇▇▇ 7-Nov-98 6-Nov-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇.▇▇▇ 5-Mar-98 4-Mar-11
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇.▇▇▇ 25-Feb-02 25-Feb-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇.▇▇▇ 18-Oct-05
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ ▇▇-▇▇▇-▇▇ ▇▇-▇▇▇-▇▇
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ 19-Nov-99 19-Nov-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ 25-Feb-02 25-Feb-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ 18-Oct-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ 5-Mar-98 4-Mar-11
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ 25-Feb-02 25-Feb-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ 4-Oct-99 4-Oct-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇.▇▇▇ 4-Oct-99 4-Oct-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ 25-Feb-02 25-Feb-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ 25-Feb-02 25-Feb-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇.▇▇▇ 18-Oct-06
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ 24-Mar-06
▇▇▇▇▇▇▇▇.▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
--------------------------------------------------------------------------------
40
SCHEDULE G
Account Debtors
None.
41
SCHEDULE H
Pledged Securities
1. All of the issued and outstanding common stock of Farequest Holdings, Inc.
2. All of the issued and outstanding common stock of OneTravel, Inc.
42
SCHEDULE I
Commercial Tort Claims
None.
43
ANNEX B
to
SECURITY
AGREEMENT
THE AGENT
1. Appointment. The Secured Parties (all capitalized terms used herein and
not otherwise defined shall have the respective meanings provided in the
Security Agreement to which this Annex B is attached (the "Agreement")), by
their acceptance of the benefits of the Agreement, hereby designate
_______________ as the Agent (in such capacity, the "Agent") to act as specified
herein and in the Agreement. Each Secured Party shall be deemed irrevocably to
authorize the Agent to take such action on its behalf under the provisions of
the Agreement and any other Transaction Document (as such term is defined in the
Debentures) and to exercise such powers and to perform such duties hereunder and
thereunder as are specifically delegated to or required of the Agent by the
terms hereof and thereof and such other powers as are reasonably incidental
thereto. The Agent may perform any of its duties hereunder by or through its
agents or employees.
2. Nature of Duties. The Agent shall have no duties or responsibilities
except those expressly set forth in the Agreement. Neither the Agent nor any of
its partners, members, shareholders, officers, directors, employees or agents
shall be liable for any action taken or omitted by it as such under the
Agreement or hereunder or in connection herewith or therewith, be responsible
for the consequence of any oversight or error of judgment or answerable for any
loss, unless caused solely by its or their gross negligence or willful conduct
as determined by a final judgment (not subject to further appeal) of a court of
competent jurisdiction. The duties of the Agent shall be mechanical and
administrative in nature; the Agent shall not have by reason of the Agreement or
any other Transaction Document a fiduciary relationship in respect of any Debtor
or any Secured Party; and nothing in the Agreement or any other Transaction
Document, expressed or implied, is intended to or shall be so construed as to
impose upon the Agent any obligations in respect of the Agreement or any other
Transaction Document except as expressly set forth herein and therein.
3. Lack of Reliance on the Agent. Independently and without reliance upon
the Agent, each Secured Party, to the extent it deems appropriate, has made and
shall continue to make (i) its own independent investigation of the financial
condition and affairs of the Company and its subsidiaries in connection with
such Secured Party's investment in the Debtors, the creation and continuance of
the Obligations, the transactions contemplated by the Transaction Documents, and
the taking or not taking of any action in connection therewith, and (ii) its own
appraisal of the creditworthiness of the Company and its subsidiaries, and of
the value of the Collateral from time to time, and the Agent shall have no duty
or responsibility, either initially or on a continuing basis, to provide any
Secured Party with any credit, market or other information with respect thereto,
whether coming into its possession before any Obligations are incurred or at any
time or times thereafter. The Agent shall not be responsible to the Debtors or
any Secured Party for any recitals, statements, information, representations or
warranties herein or in any document, certificate or other writing delivered in
connection herewith, or for the execution, effectiveness, genuineness, validity,
enforceability, perfection, collectibility, priority or sufficiency of the
Agreement or any other Transaction Document, or for the financial condition of
the Debtors or the value of any of the Collateral, or be required to make any
inquiry concerning either the performance or observance of any of the terms,
provisions or conditions of the Agreement or any other Transaction Document, or
the financial condition of the Debtors, or the value of any of the Collateral,
or the existence or possible existence of any default or Event of Default under
the Agreement, the Debentures or any of the other Transaction Documents.
44
4. Certain Rights of the Agent. The Agent shall have the right to take any
action with respect to the Collateral, on behalf of all of the Secured Parties.
To the extent practical, the Agent shall request instructions from the Secured
Parties with respect to any material act or action (including failure to act) in
connection with the Agreement or any other Transaction Document, and shall be
entitled to act or refrain from acting in accordance with the instructions of
Secured Parties holding a majority in principal amount of Debentures (based on
then-outstanding principal amounts of Debentures at the time of any such
determination); if such instructions are not provided despite the Agent's
request therefor, the Agent shall be entitled to refrain from such act or taking
such action, and if such action is taken, shall be entitled to appropriate
indemnification from the Secured Parties in respect of actions to be taken by
the Agent; and the Agent shall not incur liability to any person or entity by
reason of so refraining. Without limiting the foregoing, (a) no Secured Party
shall have any right of action whatsoever against the Agent as a result of the
Agent acting or refraining from acting hereunder in accordance with the terms of
the Agreement or any other Transaction Document, and the Debtors shall have no
right to question or challenge the authority of, or the instructions given to,
the Agent pursuant to the foregoing and (b) the Agent shall not be required to
take any action which the Agent believes (i) could reasonably be expected to
expose it to personal liability or (ii) is contrary to this Agreement, the
Transaction Documents or applicable law.
5. Reliance. The Agent shall be entitled to rely, and shall be fully
protected in relying, upon any writing, resolution, notice, statement,
certificate, telex, teletype or telecopier message, cablegram, radiogram, order
or other document or telephone message signed, sent or made by the proper person
or entity, and, with respect to all legal matters pertaining to the Agreement
and the other Transaction Documents and its duties thereunder, upon advice of
counsel selected by it and upon all other matters pertaining to this Agreement
and the other Transaction Documents and its duties thereunder, upon advice of
other experts selected by it.
6. Indemnification. To the extent that the Agent is not reimbursed and
indemnified by the Debtors, the Secured Parties will jointly and severally
reimburse and indemnify the Agent, in proportion to their initially purchased
respective principal amounts of Debentures, from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever which may be
imposed on, incurred by or asserted against the Agent in performing its duties
hereunder or under the Agreement or any other Transaction Document, or in any
way relating to or arising out of the Agreement or any other Transaction
Document except for those determined by a final judgment (not subject to further
appeal) of a court of competent jurisdiction to have resulted solely from the
Agent's own gross negligence or willful misconduct. Prior to taking any action
hereunder as Agent, the Agent may require each Secured Party to deposit with it
sufficient sums as it determines in good faith is necessary to protect the Agent
for costs and expenses associated with taking such action.
45
7. Resignation by the Agent.
(a) The Agent may resign from the performance of all its functions and
duties under the Agreement and the other Transaction Documents at any time by
giving 30 days' prior written notice (as provided in the Agreement) to the
Debtors and the Secured Parties. Such resignation shall take effect upon the
appointment of a successor Agent pursuant to clauses (b) and (c) below.
(b) Upon any such notice of resignation, the Secured Parties, acting by a
Majority in Interest, shall appoint a successor Agent hereunder.
(c) If a successor Agent shall not have been so appointed within said
30-day period, the Agent shall then appoint a successor Agent who shall serve as
Agent until such time, if any, as the Secured Parties appoint a successor Agent
as provided above. If a successor Agent has not been appointed within such
30-day period, the Agent may petition any court of competent jurisdiction or may
interplead the Debtors and the Secured Parties in a proceeding for the
appointment of a successor Agent, and all fees, including, but not limited to,
extraordinary fees associated with the filing of interpleader and expenses
associated therewith, shall be payable by the Debtors on demand.
8. Rights with respect to Collateral. Each Secured Party agrees with all
other Secured Parties, the Debtors and the Agent (i) that it shall not, and
shall not attempt to, exercise any rights with respect to its security interest
in the Collateral, whether pursuant to any other agreement or otherwise (other
than pursuant to this Agreement), or take or institute any action against the
Agent or any of the other Secured Parties in respect of the Collateral or its
rights hereunder (other than any such action arising from the breach of this
Agreement) and (ii) that such Secured Party has no other rights with respect to
the Collateral other than as set forth in this Agreement and the other
Transaction Documents.
46