DOMESTIC SUBSIDIARY SECURITY AGREEMENT
This DOMESTIC SUBSIDIARY SECURITY AGREEMENT (this "Agreement") dated as
of April 17, 2001, is entered into by and among each of the entities which are
or become a party hereto from time to time by executing a copy of this Agreement
or a joinder hereto (collectively, the "Debtors") and LASALLE BANK NATIONAL
ASSOCIATION, (f/k/a LaSalle National Bank) a national banking association
("LaSalle") as Administrative Agent for the Lenders described below (in such
capacity, the "Administrative Agent").
W I T N E S S E T H:
WHEREAS, Administrative Agent, the Lenders parties thereto (the
"Lenders") and CCC Information Services Inc., a Delaware corporation
("Borrower") entered into that certain Amended and Restated Credit Facility
Agreement dated as of October 29, 1998, as amended by that certain Waiver and
Amendment to Amended and Restated Credit Facility Agreement dated as of October
20, 2000, and that certain Second Waiver and Amendment to Amended and Restated
Credit Facility Agreement dated as of February 15, 2001 (the "Original Credit
Agreement");
WHEREAS, Administrative Agent, the Lenders and the Borrower now desire
to amend the Original Credit Agreement pursuant to that certain Waiver and Third
Amendment to Amended and Restated Credit Facility Agreement dated as of even
date herewith (the "Waiver and Amendment"), to, among other things, waive
certain Events of Default under certain financial covenants (the Original Credit
Agreement as amended by the Waiver and Amendment and as may be further amended,
restated or otherwise modified from time to time, the "Credit Agreement");
WHEREAS, the Lenders have agreed to make certain loans to, and issue or
participate in letters of credit for the account of, and to extend other
financial accommodations to, Borrower pursuant to the terms and conditions of
the Credit Agreement;
WHEREAS, each Debtor, as a direct or indirect subsidiary of the
Borrower, will derive substantial direct and indirect economic benefits from the
extension of such financial accommodations to Borrower;
WHEREAS, the Administrative Agent and the Lenders have required, as a
further condition to entering into the Waiver and Amendment and to extending
such financial accommodations, that each Debtor enter into this Agreement;
WHEREAS, each of the Debtors has executed and delivered a guaranty (as
amended, restated or otherwise modified from time to time, the "Guaranty") of
the obligations of the Borrower under the Credit Agreement, the Notes and other
Loan Documents; and
WHEREAS, the obligations of the Debtors under the Guaranty are to be
secured pursuant to this Agreement;
NOW, THEREFORE, for and in consideration of the Administrative Agent
and the Lenders agreeing to enter into the Waiver and Amendment and in
consideration of any loan,
advance or other financial accommodation heretofore or hereafter made to
Borrower under or in connection with the Credit Agreement, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. DEFINITIONS; OTHER INTERPRETIVE PROVISIONS. When used herein, (a)
the terms "Account," "Certificated Security," "Chattel Paper," "Deposit
Account," "Document," "Equipment," "Financial Asset," "Fixture," "Goods,"
"Inventory," "Instrument," "Investment Property," "Security," "Proceeds,"
"Security Entitlement" and "Uncertificated Security" have the respective
meanings assigned thereto in the UCC (as defined below); (b) the terms
"Commercial Tort Claims," "Electronic Chattel Paper," "Health Care Insurance
Receivables," "Letter-of-Credit Rights," "Payment Intangibles," "Software,"
"Supporting Obligations" and "Tangible Chattel Paper" have the respective
meanings assigned thereto in the UCC Revisions (as defined below); (c)
capitalized terms which are not otherwise defined have the respective
meanings assigned thereto in the Credit Agreement; and (d) the following
terms have the following meanings (such definitions to be applicable to both
the singular and plural forms of such terms):
"Account Debtor" means, the party who is obligated on or under any
Account, Contract Right, Chattel Paper or General Intangible.
"Assignee Deposit Account" - see SECTION 4.
"Collateral" means, with respect to any Debtor, all property and rights
of such Debtor in which a security interest is granted hereunder.
"Computer Hardware and Software" means, with respect to any Debtor, all
of such Debtor's rights (including rights as licensee and lessee) with respect
to (i) computer and other electronic data processing hardware, including all
integrated computer systems, central processing units, memory units, display
terminals, printers, computer elements, card readers, tape drives, hard and soft
disk drives, cables, electrical supply hardware, generators, power equalizers,
accessories, peripheral devices and other related computer hardware; (ii) all
Software and all software programs designed for use on the computers and
electronic data processing hardware described in CLAUSE (i) above, including all
operating system software, utilities and application programs in whatsoever form
(source code and object code in magnetic tape, disk or hard copy format or any
other listings whatsoever); (iii) any firmware associated with any of the
foregoing; and (iv) any documentation for hardware, software and firmware
described in CLAUSES (i), (ii) and (iii) above, including flow charts, logic
diagrams, manuals, specifications, training materials, charts and pseudo codes.
"Contract Right" means, with respect to any Debtor, any right of such
Debtor to payment under a contract for the sale or lease of goods or the
rendering of services, which right is at the time not yet earned by performance.
"Default" means any Event of Default.
"General Intangibles" means, with respect to any Debtor, all of such
Debtor's "general intangibles" as defined in Article 9 of the UCC and, in any
event, includes (without limitation) all of such Debtor's rights in Intellectual
Property, customer lists, Software, software
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programs, mask works, goodwill, registrations, licenses, franchises, tax
refund claims, guarantee claims, security interests and rights to
indemnification.
"Intellectual Property" means, with respect any Debtor, all of such
Debtor's past, present and future rights in: trade secrets, know-how and other
proprietary information; trademarks, Internet domain names, service marks, trade
dress, trade names, business names, designs, logos, slogans (and all
translations, adaptations, derivations and combinations of the foregoing)
indicia and other source and/or business identifiers, and the goodwill of the
business relating thereto and all registrations or applications for
registrations which have heretofore been or may hereafter be issued thereon
throughout the world; copyrights (including copyrights for computer programs),
mask works and copyright registrations or applications for registrations which
have heretofore been or may hereafter be issued throughout the world; unpatented
inventions (whether or not patentable); patent applications and patents;
industrial designs, industrial design applications and registered industrial
designs; license agreements related to any of the foregoing and income
therefrom; flow diagrams, specifications, computer software, source codes,
object codes, executable code, data, databases; the right to sue for all past,
present and future infringements of any of the foregoing; all other intellectual
property; and all common law and other rights throughout the world in and to all
of the foregoing.
"Intellectual Property - Related Assets" means, with respect to any
Debtor, all of such Debtor's tangible property manifesting, incorporating or
embodying Intellectual Property, including but not limited to, books, records,
writings, computer tapes or disks.
"Lender Party" means each Lender under and as defined in the Credit
Agreement and any Affiliate of such a Lender which is a party to a Hedging
Agreement with the Borrower.
"Liabilities" means, as to each Debtor, all obligations (monetary or
otherwise) of such Debtor under the Guaranty, any other Loan Document to which
it is a party and any other document or instrument executed in connection
therewith by it, in each case howsoever created, arising or evidenced, whether
direct or indirect, absolute or contingent, now or hereafter existing, or due or
to become due.
"Non-Tangible Collateral" means, with respect to any Debtor,
collectively, such Debtor's Accounts, Contract Rights and General Intangibles.
"Organization I.D. Number" means, with respect to any Debtor, the
organizational identification number assigned to such Debtor by the applicable
governmental unit or agency of the jurisdiction of organization for such Debtor.
"Type of Organization" means, with respect to any Debtor, the kind or
type of entity of such Debtor, such as a corporation or limited liability
company.
"UCC" means the Uniform Commercial Code as in effect in the State of
Illinois on the date of this Agreement, as may be amended or otherwise modified,
including by the UCC Revisions; PROVIDED that, as used in SECTION 8 hereof,
"UCC" shall mean the Uniform Commercial Code as in effect from time to time in
any applicable jurisdiction.
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"UCC Revisions" means, the revisions to Article 9 and other Articles of
Illinois' Uniform Commercial Code, as adopted by the State of Illinois,
effective July 1, 2001.
Unless otherwise expressly provided herein, references to agreements
(including this Agreement) and other contractual instruments shall be deemed to
include all subsequent amendments and other modifications thereto, but only to
the extent such amendments and other modifications are not prohibited by the
terms of any Loan Document. The term "including" is not limiting and means
"including, without limitation".
2. GRANT OF SECURITY INTEREST. As security for the payment of all
Liabilities, each Debtor hereby assigns to the Administrative Agent for the
benefit of the Lender Parties, and grants to the Administrative Agent for the
benefit of the Lender Parties a continuing security interest in, the
following, whether now or hereafter existing or acquired:
All of such Debtor's:
(i) Accounts, including Health Care Insurance Receivables;
(ii) Certificated Securities, except to the extent provided in that
certain Pledge Agreement of Domestic Subsidiaries dated as of
the date hereof (collectively, the "Excepted Equity
Interests");
(iii) Chattel Paper;
(iv) Computer Hardware and Software and all rights with respect
thereto, including, any and all licenses, options, warranties,
service contracts, program services, test rights, maintenance
rights, support rights, improvement rights, renewal rights and
indemnifications, and any substitutions, replacements,
additions or model conversions of any of the foregoing;
(v) Contract Rights;
(vi) Deposit Accounts;
(vii) Documents;
(viii) Financial Assets (other than the Excepted Equity Interests);
(ix) General Intangibles, including Payment Intangibles and
Software (other than Excepted Equity Interests);
(x) Goods (including all of its Equipment, Fixtures and
Inventory), and all accessions, additions, attachments,
improvements, substitutions and replacements thereto and
therefore;
(xi) Instruments;
(xii) Intellectual Property;
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(xiii) Intellectual Property - Related Assets;
(xiv) Investment Property (other than the Excepted Equity
Interests);
(xv) money (of every jurisdiction whatsoever);
(xvi) Letter-of-Credit Rights;
(xvii) Security Entitlements;
(xviii) Supporting Obligations;
(xix) Uncertificated Securities (other than the Excepted Equity
Interests); and
(xx) to the extent not included in the foregoing, other personal
property of any kind or description;
together with all books, records, writings, data bases,
information and other property relating to, used or useful in
connection with, or evidencing, embodying, incorporating or
referring to any of the foregoing, and all Proceeds, products,
offspring, rents, issues, profits and returns of and from any
of the foregoing; PROVIDED, HOWEVER, that in no event shall the
Collateral include, and no Debtor shall be deemed to have
granted a security interest in (i) any rights or interests in
any license, contract or agreement to which any Grantor is a
party to the extent, but only to the extent, that such a grant
would, under the terms of such license, contract or agreement,
result in a breach of the terms of, or constitute a default
under, such license, contract or agreement (other than to the
extent that any such term would be rendered ineffective
pursuant to Section 9-318(4) or any successor provision of the
Uniform Commercial Code of any relevant jurisdiction or any
other applicable law including, without limitation, 9-406,
9-407 or 9-408 of the UCC Revisions) or (ii) any Equipment or
other assets subject to a Lien permitted under Sections 5.5(a),
(b) or (i) of the Credit Agreement to the extent that the
agreements governing the indebtedness secured by such Liens
prohibit the granting of a security interest to the
Administrative Agent hereunder; PROVIDED, that immediately upon
the ineffectiveness, lapse or termination of any such
restriction, the Collateral shall include, and such Debtor
shall be deemed to have granted a security interest in, all
such rights and interests or Equipment or other assets, as the
case may be, as if such provision had never been in effect; and
PROVIDED, FURTHER, that notwithstanding any such restriction,
Collateral shall, to the extent such restriction does not by
its terms apply thereto, include all rights incident or
appurtenant to any such rights or interests and the right to
receive all proceeds derived from or in connection with the
sale, assignment or transfer of such rights and interest. Upon
request of the Administrative Agent, such Debtor will in good
faith use commercially reasonable efforts to obtain consent for
the creation of a security interest in favor of the
Administrative Agent (and to Administrative Agent's enforcement
of such security interest) in such Debtor's rights under such
lease, or license or other agreement.
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3. WARRANTIES. Each Debtor warrants that: (i) no financing statement
(other than any which may have been filed on behalf of the Administrative
Agent or in connection with liens expressly permitted by the Credit Agreement
("Permitted Liens")) covering any of the Collateral is on file in any public
office; (ii) such Debtor is and will be the lawful owner of all Collateral,
free of all liens and claims whatsoever, other than the security interest
hereunder and Permitted Liens, with full power and authority to execute this
Agreement and perform such Debtor's obligations hereunder, and to subject the
Collateral to the security interest hereunder (subject to licenses and leases
which expressly prohibit the granting of a security interest therein, which
prohibition is enforceable under applicable law); (iii) all information with
respect to Collateral and Account Debtors set forth in any schedule,
certificate or other writing at any time heretofore or hereafter furnished by
such Debtor to the Administrative Agent or any Lender Party is and will be
true and correct in all material respects as of the date furnished; (iv) such
Debtor's state of incorporation or organization, Type of Organization,
Organization I.D. Number, and place of business (or, if such Debtor has more
than one place of business, its chief executive office), as of the date
hereof, are as set forth on Schedule I hereto (and except as set forth on
Schedule I hereto, such Debtor has not changed its state of incorporation or
organization, nor maintained its place of business (or, if such Debtor has
more than one place of business, its chief executive office) at any other
location at any time after January 1, 1995); (v) each other location where
such Debtor maintains a place of business, as of the date hereof, is set
forth on Schedule II hereto; (vi) except as set forth on Schedule III hereto,
such Debtor is not, as of the date hereof, known and during the five years
preceding the date hereof has not previously been known by any trade name;
(vii) such Debtor's exact legal name, as of the date hereof, is as set forth
on the signature pages of this Agreement and except as set forth on Schedule
III hereto, during the five years preceding the date hereof, such Debtor has
not been known by any legal name different from the one set forth on the
signature pages of this Agreement nor has such Debtor been the subject of any
merger or other corporate or organizational reorganization; (viii) Schedule
IV hereto contains a complete listing as of the date hereof of all
Intellectual Property which is the subject of a registration or application
on the date hereof (setting forth only registration numbers and filing dates
for pending patents); (ix) such Debtor is duly organized, validly existing
and in good standing under the laws of the state of its organization; (x) the
execution and delivery of this Agreement and the performance by such Debtor
of its obligations hereunder are within such Debtor's corporate or
organizational powers, have been duly authorized by all necessary corporate
or organizational action, have received all necessary governmental approval
(if any shall be required), and do not and will not contravene or conflict
with any provision of law or of the charter or by-laws of such Debtor or of
any material agreement, indenture, instrument or other document, or any
material judgment, order or decree, which is binding upon such Debtor; (xi)
this Agreement is a legal, valid and binding obligation of such Debtor,
enforceable in accordance with its terms, except that the enforceability of
this Agreement may be limited by bankruptcy, insolvency, fraudulent
conveyance, fraudulent transfer, reorganization, moratorium or other similar
laws now or hereafter in effect relating to creditors' rights generally and
by general principles of equity (regardless of whether enforcement is sought
in a proceeding in equity or at law); (xii) such Debtor is in compliance in
all material respects with all laws (including the provisions of the Fair
Labor Standards Act), rules, regulations, administrative orders and judicial
decrees of every governmental authority (federal, state, local and otherwise)
applicable to it, its operations and its properties the non-compliance with
which could reasonably be expected to result in a Material Adverse Effect;
(xiii) Schedule V hereto contains a
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complete listing, as of the date hereof, of all of such Debtor's Deposit
Accounts, Investment Property, Letter-of-Credit Rights, Chattel Paper,
Electronic Chattel Paper, and Commercial Tort Claims and all Instruments and
Documents which Instruments and Documents are in excess of $25,000
individually or in excess of $50,000 in the aggregate; (xiv) except as set
forth on Schedule VI hereto, as of the date hereof such Debtor has no
tangible Collateral located outside of the United States; (xv) Schedule VII
hereto contains a complete listing, as of the date hereof, of each third
party and location of such Debtor's tangible Collateral located with any
bailee, warehousemen or other third parties; and (xvi) Schedule VIII hereto
contains a complete listing as of the date hereof of all of such Debtor's
Collateral which is subject to certificate of title statutes.
4. COLLECTIONS, ETC. Until such time, during the existence of a
Default, as the Administrative Agent shall notify such Debtor of the
revocation of such power and authority, each Debtor (a) may, in the ordinary
course of its business, at its own expense, sell, lease or furnish under
contracts of service any of the Inventory normally held by such Debtor for
such purpose, use and consume, in the ordinary course of its business, any
raw materials, work in process or materials normally held by such Debtor for
such purpose, and use, in the ordinary course of its business (but subject to
the terms of the Credit Agreement), the cash Proceeds of Collateral and other
money which constitutes Collateral, (b) will, at its own expense, endeavor to
collect, as and when due, all amounts due under any of the Non-Tangible
Collateral, including the taking of such action with respect to such
collection as the Administrative Agent may reasonably request or, in the
absence of such request, as such Debtor may deem advisable, and (c) may
grant, in the ordinary course of business, to any party obligated on any of
the Non-Tangible Collateral, any rebate, refund or allowance to which such
party may be lawfully entitled, and may accept, in connection therewith, the
return of Goods, the sale or lease of which shall have given rise to such
Non-Tangible Collateral. The Administrative Agent, however, may, at any time
that a Default exists, whether before or after any revocation of such power
and authority or the maturity of any of the Liabilities, notify an Account
Debtor or other Person obligated on Collateral to make payment or otherwise
render performance to or for the benefit of the Administrative Agent, and
enforce, by suit or otherwise, the obligations of an Account Debtor or other
Person obligated on Collateral and exercise the rights of such Debtor with
respect to the obligation of the Account Debtor or other Person obligated on
Collateral to make payment or otherwise render performance to such Debtor and
with respect to any property that secures the obligations of the Account
Debtor or other Person obligated on the Collateral. In connection with the
exercise of such rights and remedies, Administrative Agent may surrender,
release or exchange all or any part of such Collateral, or compromise or
extend or renew for any period (whether or not longer than the original
period) any indebtedness thereunder or evidenced thereby. Upon the request of
the Administrative Agent during the existence of a Default, each Debtor will,
at its own expense, notify any or all parties obligated on any of the
Non-Tangible Collateral to make payment to the Administrative Agent of any
amounts due or to become due thereunder.
Upon request by the Administrative Agent during the existence of a
Default, each Debtor will forthwith, upon receipt, transmit and deliver to the
Administrative Agent, in the form received, all cash, checks, drafts and other
instruments or writings for the payment of money (properly endorsed, where
required, so that such items may be collected by the Administrative Agent) which
may be received by such Debtor at any time in full or partial payment or
otherwise
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as Proceeds of any of the Collateral. Except as the Administrative Agent may
otherwise consent in writing, any such items which may be so received by any
Debtor will not be commingled with any other of its funds or property, but
will be held separate and apart from its own funds or property and upon
express trust for the Administrative Agent until delivery is made to the
Administrative Agent. Each Debtor will comply with the terms and conditions
of any consent given by the Administrative Agent pursuant to the foregoing
sentence.
After the date hereof and following written notice by Administrative
Agent during the existence of a Default, all items or amounts which are
delivered by any Debtor to the Administrative Agent on account of partial or
full payment or otherwise as Proceeds of any of the Collateral shall be
deposited to the credit of a deposit account (an "Assignee Deposit Account") of
such Debtor with LaSalle (or another financial institution selected by the
Administrative Agent) over which the Administrative Agent has sole dominion and
control, as security for payment of the Liabilities. No Debtor shall have any
right to withdraw any funds deposited in the applicable Assignee Deposit
Account. The Administrative Agent may, from time to time, in its discretion, and
shall upon request of the applicable Debtor made not more than once in any week,
apply all or any of the then balance, representing collected funds, in the
Assignee Deposit Account toward payment of the Liabilities, whether or not then
due, in such order of application as required in SECTION 1.5.3 of the Credit
Agreement, and the Administrative Agent may, from time to time, in its
discretion, release all or any of such balance to the applicable Debtor.
During the existence of a Default, the Administrative Agent (or any
designee of the Administrative Agent) is authorized to endorse, in the name of
the applicable Debtor, any item, howsoever received by the Administrative Agent,
representing any payment on or other Proceeds of any of the Collateral.
5. CERTIFICATES, SCHEDULES AND REPORTS. Each Debtor will from time
to time, as the Administrative Agent may reasonably request, deliver to the
Administrative Agent such schedules, certificates and internally prepared
reports respecting all or any of the Collateral at the time subject to the
security interest hereunder, and the items or amounts received by such Debtor
in full or partial payment of any of the Collateral, as the Administrative
Agent may reasonably request. Any such schedule, certificate or report shall
be executed by a duly authorized officer of such Debtor and shall be in such
form and detail as the Administrative Agent may specify. Each Debtor shall
immediately, upon an officer or agent becoming aware, notify the
Administrative Agent of the occurrence of any event causing any loss or
depreciation in the value of its Inventory or other Goods which loss or
depreciation is material to Borrower and its Subsidiaries taken as a whole,
and such notice shall specify the amount of such loss or depreciation.
6. AGREEMENTS OF THE DEBTORS. Each Debtor (a) authorizes
Administrative Agent to file all financing statements, and amendments
thereto, deemed reasonably appropriate by Administrative Agent in connection
with the perfection of a security interest in the Collateral (and will pay
the cost of filing or recording the same in all public offices deemed
reasonably necessary by Administrative Agent), and will, upon request of
Administrative Agent, execute such financing statements, and amendments
thereto, and other documents (and pay the cost of filing or recording the
same in all public offices reasonably deemed appropriate by Administrative
Agent) and do such other acts and things, all as the Administrative Agent may
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from time to time reasonably request, to establish and maintain a valid
security interest in the Collateral (free of all other liens, claims and
rights of third parties whatsoever, other than Permitted Liens) to secure the
payment of the Liabilities; (b) will keep all its Inventory and other
tangible Collateral at, and will not maintain any place of business at any
location other than, its address(es) shown on Schedules I and II hereto or at
such other addresses of which such Debtor shall have given the Administrative
Agent not less than 30 days' prior written notice; (c) will keep its records
concerning the Non-Tangible Collateral in such a manner as will enable the
Administrative Agent or its designees to determine at any reasonable time the
status of the Non-Tangible Collateral; (d) will furnish Administrative Agent
such information concerning such Debtor, the Collateral and the Account
Debtors as Administrative Agent may from time to time reasonably request; (e)
will permit Administrative Agent and its designees, from time to time, on
reasonable notice and at reasonable times and intervals during normal
business hours (or at any time without notice during the existence of a
Default) to inspect such Debtor's Inventory and other Goods, and to inspect,
audit and make copies of and extracts from all records and other papers in
the possession of such Debtor pertaining to the Collateral and the Account
Debtors, and will, upon reasonable request of the Administrative Agent during
the existence of a Default, deliver to Administrative Agent all of such
records and papers; (f) will, upon reasonable request of Administrative
Agent, stamp on its records concerning the Collateral, and add on all Chattel
Paper constituting a portion of the Collateral, a notation, in form
reasonably satisfactory to the Administrative Agent, of the security interest
of the Administrative Agent hereunder; (g) except for sale or lease of assets
permitted by the Credit Agreement, and except for the licensing of such
Debtor's Intellectual Property in the ordinary course of such Debtor's
business upon fair and reasonable terms which are fully disclosed in writing
in advance to the Administrative Agent, and the abandonment of Intellectual
Property which is no longer useful the business or otherwise not economically
desirable, will not sell, lease, license or assign any Collateral or create
or permit to exist any Lien on any Collateral other than Permitted Liens; (h)
will at all times keep all of its Inventory and other Goods insured under
policies maintained in accordance with SECTION 4.8 of the Credit Agreement
and cause all such policies to provide that loss thereunder shall be payable
to the Administrative Agent as its interest may appear (it being understood
that (A) so long as no Default shall be existing, the Administrative Agent
shall deliver any proceeds of such insurance which may be received by it to
such Debtor and (B) whenever a Default shall be existing, the Administrative
Agent may apply any proceeds of such insurance which may be received by it
toward payment of the Liabilities, whether or not due, in such order of
application as required by SECTION 1.5.3 of the Credit Agreement), and such
policies or certificates thereof shall, if the Administrative Agent so
requests, be deposited with or furnished to the Administrative Agent; (i)
will take such actions as are reasonably necessary to keep its Inventory and
Equipment in good repair and condition and in good working order, ordinary
wear and tear excepted; (j) will promptly pay when due all license fees,
registration fees, taxes, assessments and other charges which may be levied
upon or assessed against the ownership, operation, possession, maintenance or
use of its Equipment and other Goods in accordance with the Credit Agreement;
(k) will promptly notify Administrative Agent in writing upon acquiring or
otherwise obtaining any Collateral after the date hereof which is subject to
certificate of title statutes; (l) will upon request of the Administrative
Agent, (i) cause to be noted on the applicable certificate, in the event any
of its Equipment is covered by a certificate of title, the security interest
of the Administrative Agent in the Equipment covered thereby, and (ii)
deliver all such certificates to the Administrative Agent or its designees;
(m) will take all steps reasonably
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necessary to protect, preserve and maintain all of its rights in the
Collateral; (n) will promptly notify Administrative Agent in writing upon
acquiring or otherwise obtaining any Intellectual Property after the date
hereof which is the subject of a registration or application; (o) except as
listed on Schedule VI, will keep all of the tangible Collateral in the United
States; (p) will promptly notify Administrative Agent in writing upon
acquiring or otherwise obtaining any Collateral after the date hereof
consisting of Deposit Accounts, Investment Property, Letter-of-Credit Rights,
Chattel Paper or Electronic Chattel Paper and, upon the request of
Administrative Agent, will promptly execute such other documents, and do such
other acts or things deemed appropriate by Administrative Agent to deliver to
Administrative Agent control with respect to such Collateral; (q) will
promptly notify Administrative Agent in writing upon acquiring or otherwise
obtaining any Collateral after the date hereof consisting of Documents or
Instruments in excess of $25,000, individually or in excess of $50,000 in the
aggregate (other than instruments submitted for collection in the ordinary
course of business) and, upon the request of Administrative Agent, will
promptly execute such other documents, and do such other acts or things
deemed appropriate by Administrative Agent to deliver to Administrative Agent
possession of such Documents which are negotiable and Instruments, and, with
respect to nonnegotiable Documents, to have such nonnegotiable Documents
issued in the name of the Administrative Agent; (r) with respect to
Collateral with a value in excess of $25,000 in the possession of a
particular third party, other than Certificated Securities and Goods covered
by a Document, will obtain an acknowledgment from such third party that it is
holding the Collateral for the benefit of the Administrative Agent; (s) will
promptly notify the Administrative Agent in writing upon incurring or
otherwise obtaining a Commercial Tort Claim in excess of $25,000 individually
or Commercial Tort Claims in excess of $50,000 in the aggregate after the
date hereof against any third party, and, upon the request of Administrative
Agent, will promptly enter into an amendment to this Agreement, and do such
other acts or things deemed appropriate by the Administrative Agent to give
Administrative Agent a security interest in such Commercial Tort Claim or
Commercial Tort Claims, as applicable; (t) will not change its state of
incorporation or organization or Type of Organization or principal place of
business or chief executive office; (v) will not change its legal name
without providing Administrative Agent with at least 30 days' prior written
notice; and (w) will reimburse the Administrative Agent for all reasonable
out-of-pocket expenses, including reasonable attorney's fees and charges
(including time charges of attorneys who are employees of the Administrative
Agent), incurred by the Administrative Agent in seeking to collect or enforce
any rights in respect of such Debtor's Collateral.
Any reasonable out-of-pocket expenses incurred in protecting,
preserving or maintaining any Collateral shall be borne by Debtors. Except as
otherwise expressly set forth in Section 2, whenever a Default shall be
existing, the Administrative Agent shall have the right to bring suit to enforce
any or all of the Intellectual Property or licenses thereunder, in which event
the applicable Debtor shall at the request of the Administrative Agent do any
and all lawful acts and execute any and all proper documents required by the
Administrative Agent in aid of such enforcement, and Debtor shall promptly, upon
demand, reimburse and indemnify the Administrative Agent for all costs and
expenses incurred by the Administrative Agent in the exercise of its rights
under this Section 6. Notwithstanding the foregoing, the Administrative Agent
shall have no obligation or liability regarding the Collateral or any thereof by
reason of, or arising out of, this Agreement.
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7. DEFAULT. Whenever a Default shall be existing, the Administrative
Agent may exercise from time to time any right or remedy available to it
under applicable law. Each Debtor agrees, in case of Default which is
continuing, (i) at the Administrative Agent's request, to assemble, at its
expense, all its Inventory and other Goods (other than Fixtures) at a
convenient place or places acceptable to the Administrative Agent, and (ii)
at the Administrative Agent's request, to execute all such documents and do
all such other things which may be necessary or desirable, subject to the
proviso contained in Section 2 above, in order to enable the Administrative
Agent or its nominee to be registered as owner of the Intellectual Property
with any competent registration authority. Any notification of intended
disposition of any of the Collateral required by law shall be deemed
reasonably and properly given if given at least ten days before such
disposition. Administrative Agent may sell the Collateral without giving any
warranties as to the Collateral, including, any warranties of title,
possession, quiet enjoyment and the like. Any cash Proceeds of any
enforcement, collection or disposition by the Administrative Agent of any of
the Collateral may be applied by the Administrative Agent to payment of
expenses in connection with the Collateral, including reasonable attorney's
fees and charges (including time charges of attorneys who are employees of
the Administrative Agent), and any balance of such cash Proceeds may be
applied by the Administrative Agent toward the payment of such of the
Liabilities, and in such order of application, as required in SECTION 1.5.3
of the Credit Agreement. If Administrative Agent disposes of any of the
Collateral upon credit, the applicable Debtor will be credited with only
those payments actually made by the purchaser and received by Administrative
Agent. In the event the purchaser of such Collateral fails to pay for such
Collateral, Administrative Agent may resell such Collateral and the
applicable Debtor shall be credited with any cash Proceeds of the sale.
8. GENERAL. The Administrative Agent shall be deemed to have
exercised reasonable care in the custody and preservation of any of the
Collateral in its possession if it takes such action for that purpose as any
applicable Debtor requests in writing, but failure of the Administrative
Agent to comply with any such request shall not of itself be deemed a failure
to exercise reasonable care, and no failure of the Administrative Agent to
preserve or protect any right with respect to such Collateral against prior
parties, or to do any act with respect to the preservation of such Collateral
not so requested by the applicable Debtor, shall be deemed of itself a
failure to exercise reasonable care in the custody or preservation of such
Collateral.
Any notice required or permitted to be given under this Agreement shall
be sent by United States mail, telegraph, telex, fax or nationally established
overnight courier service, and shall be deemed received (i) when received by the
addressee if sent via the United States mail, postage prepaid, (ii) when
delivered to the appropriate office or machine operator for transmission,
charges prepaid, if sent by telegraph or telex (answerback confirmed in the case
of telexes), (iii) when receipt thereof by the addressee is confirmed by
telephone if sent by fax and (iv) one business day after delivery to an
overnight courier service, if sent by such service, in each case addressed to
the relevant party at the address set forth for such party on the signature
pages hereof or to the Credit Agreement or at such other address as may be
designated by such party in a notice sent in accordance with the terms of this
Section 8 to the other parties.
Each of the Debtors agrees to pay all expenses, including reasonable
attorney's fees and charges (including time charges of attorneys who are
employees of the Administrative Agent or any Lender Party) paid or incurred by
the Administrative Agent or any Lender Party in
11
endeavoring to collect the Liabilities of such Debtor, or any part thereof,
and in enforcing this Agreement, and such obligations will themselves be
Liabilities.
No delay on the part of the Administrative Agent in the exercise of any
right or remedy shall operate as a waiver thereof, and no single or partial
exercise by the Administrative Agent of any right or remedy shall preclude other
or further exercise thereof or the exercise of any other right or remedy.
This Agreement shall remain in full force and effect until all
Liabilities (other than contingent indemnification obligations) have been paid
in cash in full and all Commitments have terminated. Upon such termination, the
Administrative Agent hereby agrees to deliver at the Debtors' sole expense,
without any representation, warranties or recourse of any kind whatsoever, all
Collateral held by the Administrative Agent and to execute and deliver to the
Debtors such release documents as they may reasonably request to evidence such
termination. If at any time all or any part of any payment theretofore applied
by the Administrative Agent or any Lender Party to any of the Liabilities is or
must be rescinded or returned by the Administrative Agent or such Lender Party
for any reason whatsoever (including the insolvency, bankruptcy or
reorganization of any Debtor), such Liabilities shall, for the purposes of this
Agreement, to the extent that such payment is or must be rescinded or returned,
be deemed to have continued in existence, notwithstanding such application by
the Administrative Agent or such Lender Party, and this Agreement shall continue
to be effective or be reinstated, as the case may be, as to such Liabilities,
all as though such application by the Administrative Agent or such Lender Party
had not been made.
This Agreement shall be construed in accordance with and governed by
the laws of the State of Illinois applicable to contracts made and to be
performed entirely within such State, except to the extent that the UCC provides
for the application of the law of a different state. Whenever possible, each
provision of this Agreement shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provision of this Agreement
shall be prohibited by or invalid under applicable law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Agreement.
Notwithstanding anything contained in the preceding paragraph or
herein, if, in accordance with the terms of the Credit Agreement and the other
Loan Document, any Debtor party to this Agreement shall no longer be a direct or
indirect subsidiary of (i) the Borrower or any direct or indirect subsidiary of
the Borrower or (ii) the parent of the Borrower, then the security granted by
such Debtor shall upon written notice thereof to Administrative Agent be
released, and this Agreement, with respect to such Debtor, shall be terminated.
The Administrative Agent hereby agrees to deliver, at such Debtor's sole
expense, without any representation, warranties or recourse of any kind
whatsoever, all Collateral held by the Administrative Agent and execute and
deliver to such Debtor such release documents as such Debtor may reasonably
request to evidence such termination.
The rights and privileges of the Administrative Agent hereunder shall
inure to the benefit of its successors and assigns.
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This Agreement may be executed in any number of counterparts and by
the different parties hereto on separate counterparts, and each such
counterpart shall be deemed to be an original, but all such counterparts
shall together constitute one and the same Agreement. Delivery of an executed
counterpart of this Agreement by telefacsimile shall be equally as effective
as delivery of a manually executed counterpart of this Agreement. Any party
delivering an executed counterpart of this Agreement by telefacsimile shall
also deliver a manually executed counterpart of this Agreement, but the
failure to deliver a manually executed counterpart shall not affect the
validity, enforceability, and binding effect of this Agreement.
ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION
WITH THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, SHALL BE BROUGHT AND MAINTAINED
EXCLUSIVELY IN THE COURTS OF THE STATE OF ILLINOIS OR IN THE UNITED STATES
DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS; PROVIDED THAT ANY SUIT
SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT
THE ADMINISTRATIVE AGENT'S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SUCH
COLLATERAL OR OTHER PROPERTY MAY BE FOUND. EACH DEBTOR HEREBY EXPRESSLY AND
IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE OF ILLINOIS
AND OF THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE. EACH DEBTOR FURTHER
IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE
PREPAID, TO THE ADDRESS SET FORTH ON SCHEDULE I HERETO (OR SUCH OTHER ADDRESS AS
IT SHALL HAVE SPECIFIED IN WRITING TO THE ADMINISTRATIVE AGENT AS ITS ADDRESS
FOR NOTICES HEREUNDER) OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF
ILLINOIS. EACH DEBTOR HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO
ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT
FORUM.
EACH OF EACH DEBTOR, THE ADMINISTRATIVE AGENT AND (BY ACCEPTING THE
BENEFITS HEREOF) EACH LENDER PARTY HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY IN
ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS AGREEMENT,
ANY NOTE, ANY OTHER LOAN DOCUMENT AND ANY AMENDMENT, INSTRUMENT, DOCUMENT OR
AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION
HEREWITH OR THEREWITH OR ARISING FROM ANY FINANCING RELATIONSHIP EXISTING IN
CONNECTION WITH ANY OF THE FOREGOING, AND AGREES THAT ANY SUCH ACTION OR
PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.
9. POWER OF ATTORNEY. Each of the Debtor's hereby irrevocably
appoints Administrative Agent as such Debtor's attorney-in-fact, with full
authority in the place and stead of such Debtor and in the name of such
Debtor or otherwise to carry out the acts described
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below. Subject to the terms of the Credit Agreement, upon the occurrence and
during the continuance of an Event of Default, and the giving by
Administrative Agent of written notice to the Debtors of an Event of Default,
each Debtor hereby authorizes Administrative Agent to, in its sole discretion
(i) endorse such Debtor's name on all applications, documents, papers and
instruments necessary or desirable for Administrative Agent in the
enforcement of its security interest in the Collateral, (ii) take any other
actions with respect to Collateral as Administrative Agent deems is in the
best interest of itself and the Lenders, (iii) grant or issue any exclusive
or nonexclusive license under the Collateral to anyone on commercially
reasonable terms, and (iv) assign, pledge, convey or otherwise transfer title
in or dispose of the Collateral to anyone on commercially reasonable terms
consistent with the procedures in SECTION 7 hereof. Each Debtor hereby
ratifies all that such attorney-in-fact shall lawfully do or cause to be done
by virtue hereof. This power of attorney is coupled with an interest and
shall be irrevocable until this Agreement shall have been terminated pursuant
to SECTION 8 hereof. Each Debtor acknowledges and agrees that this Agreement
is not intended to limit or restrict in any way the rights and remedies of
Administrative Agent or Lenders under the Credit Agreement, but rather is
intended to facilitate the exercise of such rights and remedies.
Administrative Agent, for the benefit of Lenders shall have, in addition to
all other rights and remedies given it by the terms of this Agreement, all
rights and remedies allowed by law and the rights and remedies of a secured
party under the UCC.
SIGNATURE PAGE FOLLOWS
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SIGNATURE PAGE TO DOMESTIC SUBSIDIARY SECURITY AGREEMENT
IN WITNESS WHEREOF, this Agreement has been duly executed as of the day
and year first above written.
DEBTORS:
CCC CONSUMER SERVICES INC., CCC PARTSCO HOLDINGS, INC.,
a Delaware corporation a Delaware corporation
By: /s/ Reid E. Simpson By: /s/ Reid E. Simpson
-------------------- ---------------------
Name: Reid E. Simpson Name: Reid E. Simpson
Title: Chief Financial Officer Title: Executive Vice President
Address: Address:
444 Merchandise Mart 444 Merchandise Mart
Chicago, IL 60654 Chicago, IL 60654
CCC CONSUMER SERVICES SOUTHEAST INC., ASSET MANAGEMENT INC.,
a Delaware corporation a Delaware corporation
By: /s/ Reid E. Simpson By: /s/ Reid E. Simpson
------------------------------------- ---------------------
Name: Reid E. Simpson Name: Reid E. Simpson
Title: Chief Financial Officer Title: Chief Financial Officer
Address: Address:
1100 South State Road 7, Suite 201 444 Merchandise Mart
Margate, FL 33068 Chicago, IL 60654
SIGNATURE PAGE TO DOMESTIC SUBSIDIARY SECURITY AGREEMENT
LASALLE BANK NATIONAL
ASSOCIATION, as Administrative Agent
By: /s/ Aimee Daniels
-------------------
Aimee Daniels,
Senior Vice President and Division Head
FORM OF JOINDER TO DOMESTIC SUBSIDIARY SECURITY AGREEMENT
The undersigned hereby joins in that certain Domestic Subsidiary
Security Agreement originally executed and delivered by ___________________ (the
"Original Debtors") (as such Domestic Subsidiary Security Agreement may be
amended, restated or otherwise modified from time to time, "Security Agreement")
for purposes of becoming a party thereto as one of the "Debtors" and agrees to
comply with all terms and conditions of the Security Agreement. The undersigned
acknowledges and agrees that any and all references in the security agreement to
"Debtors" shall be deemed to refer to the original Debtors and any Debtors which
have executed a Joinder to the Security Agreement and/or the undersigned, as the
case may be.
IN WITNESS WHEREOF, the undersigned has executed this Joinder as of
April 17, 2001.
By: _________________________
Name:________________________
Title:_______________________