AMENDED AND RESTATED SECURITY AGREEMENT
This AMENDED AND RESTATED SECURITY AGREEMENT (this "Agreement") dated
as of April 17, 2001, is entered into by and among CCC INFORMATION SERVICES,
INC., a Delaware corporation (the "Debtor") 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 Debtor 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 Debtor 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, Debtor pursuant to the terms and conditions of the
Credit Agreement;
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 Debtor enter into this Agreement;
WHEREAS, the obligations of the Debtor under the Credit Agreement 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 Debtor 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 all property and rights of Debtor in which a
security interest is granted hereunder.
"Computer Hardware and Software" means all of 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 any right of 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 all of Debtor's "general intangibles" as
defined in Article 9 of the UCC and, in any event, includes (without limitation)
all of Debtor's rights in Intellectual Property, customer lists, Software,
software programs, mask works, goodwill, registrations, licenses, franchises,
tax refund claims, guarantee claims, security interests and rights to
indemnification.
"Intellectual Property" means all of 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
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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 all of 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 Debtor.
"Liabilities" means (i) all obligations (monetary or otherwise) of
Debtor, howsoever created, arising or evidenced, whether direct or indirect,
absolute or contingent, now or hereafter existing, or due or to become due,
which arise out of or in connection with the Credit Agreement, the Notes, this
Agreement, any other Loan Document or any document or instrument executed in
connection therewith and (ii) all Hedging Obligations owed by Debtor to any
Lender Party.
"Non-Tangible Collateral" means collectively, Debtor's Accounts,
Contract Rights and General Intangibles.
"Organization I.D. Number" means the organizational identification
number assigned to Debtor by the applicable governmental unit or agency of the
jurisdiction of organization for Debtor.
"Type of Organization" means the kind or type of entity of 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.
"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".
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2. GRANT OF SECURITY INTEREST. As security for the payment of all
Liabilities, 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 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;
(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;
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(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 interests. Upon request of the Administrative
Agent, 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 Debtor's rights under such lease, or license or other
agreement.
3. WARRANTIES. 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) 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 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
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furnished by 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) Debtor's state of incorporation or organization, Type of Organization,
Organization I.D. Number, and place of business (or, if 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, Debtor has not changed its state of incorporation or organization,
nor maintained its place of business (or, if 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 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, Debtor is not known, as of the
date hereof, and during the five years preceding the date hereof has not
previously been known by any trade name; (vii) Debtor's exact legal name, as
of the date hereof, is as set forth on the signature page of this Agreement,
and except as set forth on Schedule III hereto, during the five years
preceding the date hereof, Debtor has not been known by any legal name
different from the one set forth on the signature page of this Agreement nor
has 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 the registration numbers and filing dates for pending patents); (ix)
Debtor is a corporation 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 Debtor of its obligations
hereunder are within 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 Debtor or of any material agreement, indenture,
instrument or other document, or any material judgment, order or decree,
which is binding upon Debtor; (xi) this Agreement is a legal, valid and
binding obligation of 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) 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 complete listing, as of the date hereof, of all of 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, of each third party and location of
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.
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4. COLLECTIONS, ETC. Until such time, during the existence of a
Default, as the Administrative Agent shall notify Debtor of the revocation of
such power and authority, 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 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 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 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 Debtor with respect to the obligation of the Account Debtor or
other Person obligated on Collateral to make payment or otherwise render
performance to 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, 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, 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 Debtor at any time in full or partial payment or otherwise 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 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. 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 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 Debtor with
LaSalle (or another financial institution selected by the Administrative Agent)
over which
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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 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 by 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 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 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. 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 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 Debtor and shall be in such form and
detail as the Administrative Agent may specify. 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 Debtor and
its Subsidiaries taken as a whole, and such notice shall specify the amount
of such loss or depreciation.
6. AGREEMENTS OF THE DEBTORS. 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 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 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 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 Debtor's Inventory and other
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Goods, and to inspect, audit and make copies of and extracts from all records
and other papers in the possession of 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
Debtor's Intellectual Property in the ordinary course of 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
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 set forth in 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; (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 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
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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 $50,000, individually or in excess of $100,000 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; (u) will not change its legal name
without providing Administrative Agent with at least 30 days' prior written
notice; and (v) 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 Debtor's Collateral.
Any reasonable out-of-pocket expenses incurred in protecting,
preserving or maintaining any Collateral shall be borne by Debtor. 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 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.
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. 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
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(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 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, the
Administrative Agent may resell such Collateral and the 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
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 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.
Debtor 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 endeavoring to collect the Liabilities of 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 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
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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 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 or
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.
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
12
ADMINISTRATIVE AGENT'S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SUCH
COLLATERAL OR OTHER PROPERTY MAY BE FOUND. 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. 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. 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 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. Debtor hereby irrevocably appoints
Administrative Agent as Debtor's attorney-in-fact, with full authority in the
place and stead of Debtor and in the name of Debtor or otherwise to carry out
the acts described 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 Debtor of an Event of
Default, Debtor hereby authorizes Administrative Agent to, in its sole
discretion (i) endorse 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. 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. 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
13
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
14
SIGNATURE PAGE TO AMENDED AND RESTATED SECURITY AGREEMENT
IN WITNESS WHEREOF, this Agreement has been duly executed as of the day
and year first above written.
DEBTOR:
CCC INFORMATION SERVICES INC.,
a Delaware corporation
By: /s/ Reid E. Simpson
--------------------------------
Name: Reid E. Simpson
Its: Chief Financial Officer
Address:
-------
CCC Information Services, Inc.
444 Merchandise Mart Plaza
Chicago, IL 60654-1005
Main: 312-229-3200
Fax: 312-527-1194
SIGNATURE PAGE TO AMENDED AND RESTATED SECURITY AGREEMENT
LASALLE BANK NATIONAL ASSOCIATION, as Administrative
Agent
By: /s/ Aimee Daniels
-----------------------------------------
Aimee Daniels,
Senior Vice President and Division Head