EXHIBIT 10.2
[LETTERHEAD OF CITY NATIONAL BANK] SECURITY AGREEMENT
(General)
In consideration of the covenants and agreements contained herein, and
financial accommodations given, to be given or continued, the undersigned
Debtor hereby grants to City National Bank, a national banking association
("CNB"), as secured party, a security interest in all of the Collateral
described in the Collateral Description below. The security interest created by
this Agreement attaches immediately upon execution hereof, or as soon as Debtor
acquires rights to the Collateral, and secures payment of any and all of (a)
Debtor's indebtedness (including all debts, obligations, or liabilities now or
hereafter existing, absolute or contingent, direct or indirect, matured or
unmatured and including undisbursed future advances) to CNB; (b) amounts due CNB
for its performance of Debtor's obligations under this Agreement, and (c)
amounts due CNB in its enforcement of its rights and remedies under this
Agreement (collectively, the "Indebtedness").
DEBTOR(S)
a. Digital Insight Corporation, A Delaware ▇▇-▇▇▇▇▇▇▇
-------------------------------------- ----------
Corporation
-----------
Name Social Security or Employer Number
b. ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇. 91302
---------------------------------------
Mailing Address
SECURED PARTY-CITY NATIONAL BANK (Transit and A.B.A. No. 16-1606/1220)
Mailing Address: Technology Group - Los Angeles
San ▇▇▇▇▇▇▇▇ Valley CBC #240
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇, ▇▇▇▇▇
COLLATERAL DESCRIPTION:
City National Bank Certificate of Deposit Account Number 240-005484, dated
September 06, 2000, in the name of Digital Insight Corporation, in the amount of
$10,000,000.00 and any and all renewals, extensions and additions thereto, all
substitutions therefor and all proceeds thereof.
1
I. WARRANTIES AND REPRESENTATIONS. Debtor warrants and represents:
1. Debtor's Title. Debtor has title to all Collateral; all Collateral is
genuine; and, except the rights, titles, liens, encumbrances, claims or
interests in any collateral in existence at the time of execution of this
Agreement or as CNB has expressly consented to in writing, which consent
shall not be reasonably withheld, no other person, entity, agency or
government has or purports to have any right, title, lien, encumbrance,
claim or interest in any Collateral and there is no financing statement on
file anywhere covering or affecting the Collateral.
2. Debtor's Authority. Debtor has authority to enter into this Agreement.
3. Payment Rights. All Collateral consisting of accounts, chattel paper,
general intangibles, instruments and documents (hereinafter, collectively
called "Payment Rights"), is bona fide, enforceable according to its terms
and free from all defenses, claims defaults, prepayments, setoffs and
conditions precedent. All persons obligated on Payment Rights have
authority and capacity to contract. All Payment Rights comply with all
applicable laws concerning form, content, manner of preparation and
execution, including where applicable, any consumer credit laws.
4. Chattel Paper. The security interest evidenced by chattel paper Collateral
has been perfected and preserved and, where required by the chattel paper,
adequate insurance has been obtained with loss payable to Debtor.
5. Bills of Lading. All bills of lading, warehouse receipts or other documents
or instruments of title outstanding with respect to the Collateral, or any
portion thereof, have been delivered with any necessary indorsement to CNB.
6. Information. Any and all information now or hereafter supplied to CNB by
Debtor or at Debtor's request or instruction is complete, true and correct
in all material respects.
II. COVENANTS AND AGREEMENTS. Debtor covenants and agrees:
1. General Powers over Collateral. Debtor authorizes CNB to transfer the
Collateral to its own or nominee's name, and to perform any and all acts
which CNB believes in good faith to be necessary or desirable to protect or
preserve the Collateral, its value or CNB's security interest therein.
These acts include, but are not limited to, entering into extension,
reorganization, deposit, merger or consolidation agreements, compromising
disputes and repledging the Collateral.
2. Powers over Payment Rights. At any time that CNB desires, whether or not
an Event of Default (as defined below) has occurred, CNB may notify any
person liable on a Payment Right (herein called "Account Debtor") to make
payments thereon directly to CNB, collect Payment Rights and take control
of cash and noncash proceeds and grant extensions, make adjustments,
compromise or otherwise settle any Payment Rights as CNB deems in its sole
discretion to be appropriate, without affecting Debtor's liability for
the Indebtedness. Until such time as CNB elects to exercise such rights,
Debtor is authorized on behalf of CNB to collect and enforce Payment
Rights. Upon CNB's request, Debtor shall deliver to CNB, for application
against the Indebtedness, all checks, drafts, cash and other remittances in
payment of the Payment Rights on the banking day following receipt, in
precisely the form received, except for Debtor's indorsement where
necessary to permit collection of the item, which indorsement Debtor agrees
to make. Pending such delivery, Debtor shall not commingle any checks,
drafts, cash and other remittances with any of its other funds or property,
but shall hold them separate and apart expressly in trust for CNB. All such
remittances shall be accompanied by such statements and reports of
collections and adjustments as CNB may from time to time specify.
3. Modification and Allowance of Payment Rights. Debtor shall not modify any
of the terms, conditions or covenants of any original sale, exchange,
lease, disposition or services rendered or to be rendered which give rise
to any Payment Right without CNB's prior written consent. Debtor may only
give normal allowances, credits and discounts on Payment Rights after first
giving written notice to CNB and, upon CNB's demand, shall pay the same to
CNB.
4. Notice of Changes In Information, Name, Structure or Litigation. Debtor
shall immediately notify CNB of (a) any adverse changes in Debtor's
financial condition or operations or in any financial or other information
provided to CNB; (b) any change in Debtor's residence, chief executive
office, mailing address, name, trade name, and, if Debtor is an
organization, its identity or corporate structure; (c) any new openings of
places of business by Debtor; (d) any litigation pending or threatened
against Debtor or affecting the Collateral or having a material adverse
effect upon Debtor's business or financial condition or its
2
properties; and (e) any unpaid taxes of Debtor which are more than
fifteen (15) days delinquent.
5. Reports; Verification; Inspection. Debtor shall provide CNB with such
reports, accountings, documents and information as may reasonably be
requested by CNB from time to time concerning the Collateral, including,
but not limited to, reports and information about acquisitions,
dispositions, returns, delivery and valuation of Collateral consisting of
goods, and rendering of services and agings and identification of Account
Debtors for Collateral consisting of Payment Rights. Debtor shall ▇▇▇▇ its
books and records and the Collateral as requested by CNB to show CNB's
security interest therein. Debtor shall permit CNB, when requested by
reasonable notice as to time and scope of the examination, to inspect
Debtor's locations and the Collateral and to inspect, examine, audit and
copy any of Debtor's books, records, statements, correspondence and other
data relating to Debtor's business and the Collateral. Debtor shall
assemble and make such Collateral and data available to CNB as requested by
CNB.
6. Location and Identification. Debtor shall keep the Collateral separate
and identifiable and, except for Inventory under lease, at Debtor's
address stated in this Agreement or such other address(es) as Debtor has
first given notice to CNB.
7. Sale, Lease or Disposition. Debtor shall not, without CNB's prior written
consent, sell encumber or otherwise dispose of or transfer any Collateral
or interest therein, or permit any such disposition or transfer, until all
of the Indebtedness has been completely discharged; provided, however, if
an Event of Default has not occurred, Debtor may sell or lease Collateral
consisting of Inventory in the ordinary course of Debtor's business.
8. Defense of Title. Debtor shall (a) appear in and defend any actions or
proceedings purporting to affect CNB's security interest in or Debtor's
or CNB's rights, powers or title to any Collateral; (b) take such actions
which CNB deems necessary to keep the Collateral free and clear from all
liens, encumbrances, claims, rights, counterclaims or defense of others;
and (c) pay such costs, expenses and attorneys' fees related to such
actions.
9. Maintain Warranties. Debtor shall maintain all of the Warranties and
Representations stated above on an ongoing basis for all Collateral which
Debtor hereafter acquires or creates until all of the Indebtedness, and
any rights of Debtor to future advances from CNB, are fully discharged.
10. Maintenance, Repair, Use. Debtor shall (a) maintain and keep the
Collateral in good working condition and repair; (b) only use the
Collateral in a lawful manner and in ways which will not void insurance
coverage; and (c) not use the Collateral so as to cause or result in any
waste or unreasonable deterioration or depreciation.
11. Decrease in Value of Collateral. If, in CNB's judgement, the Collateral
has materially decreased in value, Debtor shall either provide enough
additional Collateral to satisfy CNB or reduce Debtor's total Indebtedness
by an amount sufficient to satisfy CNB.
12. Insurance. Debtor shall insure the Collateral, with CNB as payee under
lenders loss payable endorsement, in form, amount, with companies and
against risks satisfactory to CNB. Debtor hereby assigns all insurance
policies and proceeds thereof to CNB and authorizes CNB to make any claims
thereunder, cancel the insurance upon the occurrence of an Event of Default
hereunder, and receive all payments thereunder, including return premiums.
Debtor shall also maintain insurance in types and amounts customarily
carried in its line of business, including property insurance for fire,
with extended coverage and malicious mischief and vandalism, and public
liability for its acts and products, with companies satisfactory to CNB.
Debtor authorizes the insurance companies and Debtor's representatives to
deliver policies and other proofs of all the foregoing insurance coverage
to CNB.
13. Damage or Destruction to Collateral. Debtor shall promptly notify CNB in
the event any Collateral is damaged, destroyed or lost, stating the
cause, nature and extent of the damage, destruction or loss.
14. Assignment of Use, Increase Profits. Debtor assigns and agrees to deliver
to CNB promptly upon receipt all increases, profits, proceeds, dividends,
distributions, products substitutions, replacements and rights of use of
the Collateral.
15. Taxes, Assessments, Charges, Liens. Debtor shall pay and discharge when
due all taxes, assessments, charges, liens and encumbrances now or
hereafter affecting the Collateral and, if the Collateral is on or
attached to realty owned by Debtor, the realty on which the Collateral is
located.
3
16. Additional Documents. Debtor shall execute, acknowledge and deliver to CNB
any additional documents, assignments or agreements that CNB, from time to
time, deems reasonably necessary or advisable respecting the Collateral.
17. General Business Operation. Debtor shall keep accurate and complete records
regarding its business and the Collateral. Debtor shall conduct its
business without voluntary interruption, except in the event of an
emergency, and shall maintain all privileges, franchises, licenses and
permits required to conduct its business.
18. Power of Attorney. In order to preserve and protect CNB's rights under this
Agreement and in the Collateral, Debtor appoints CNB as its true and lawful
attorney in fact, with full power of substitution, to perform any and all
acts which Debtor is obligated to do or CNB is entitled to do under this
Agreement. This power of attorney includes, but is not limited to, the
right to use the Collateral as Debtor might use; collect the proceeds and
profits of Collateral as Debtor might collect; release Collateral and
Account Debtors; receive, open and dispose of all mail addressed to Debtor,
notify the Post Office to change the address for delivery of mail addressed
to Debtor to such address as CNB shall designate; and endorse Debtor's name
on all checks, drafts and other items remitted for payment with respect to
the Collateral or collection of Payment Rights. Nothing herein shall
obligate CNB to exercise any of the rights granted by this power of
attorney. Debtor shall immediately reimburse CNB for any and all costs,
attorneys' fees or expenses made or incurred by CNB (including attorneys'
fees allocable to CNB's in-house counsel) while acting under this power of
attorney.
19. Reimbursement. Debtor shall reimburse and pay CNB, upon demand, any and all
expenses, costs and attorneys' fees incurred by CNB, or allocable to CNB's
in-house counsel, whether or not a lawsuit is filed, in the enforcement or
exercise of any of CNB's rights, powers or remedies or performance of any
of Debtor's obligations under this Agreement or the protection,
preservation or disposition of the Collateral, with interest from the date
of expenditure or when the fee became allocable at the rate set forth in
the Indebtedness (and if this Agreement secures more than one Indebtedness,
at the highest of the interest rates), or if the Indebtedness does not
specify a rate of interest, at a rate of interest equal to CNB's Prime
Rate, as it may exist from time to time, plus three percent (3.0%) per
year, but in no event less than ten percent (10.0%) per year.
20. Debtor's Waivers. Debtor waives any rights to require CNB to proceed
against any other person, to exhaust the Collateral or any other property
securing the Indebtedness or to pursue any other remedies available to CNB.
21. Purchase Money. If proceeds of any loan from CNB to Debtor are to enable
Debtor to acquire rights in or the use of Collateral, Debtor shall use the
loan proceeds for such purpose, and deliver the Collateral to CNB when
requested by CNB.
22. Cultivation and Animal Husbandry. If the Collateral is timber, crops or
livestock, Debtor will protect and cultivate, and care for the Collateral
using methods of cultivation and animal husbandry acceptable to CNB.
III. EVENTS OF DEFAULT. Debtor agrees that the occurrence of any of the
following shall constitute an "Event of Default" under this Agreement.
1. Debtor's failure to pay when due any principal, interest or other amount
due under any of the Indebtedness.
2. Debtor's failure to perform or observe any of the terms, provisions,
covenants, agreements or obligations contained in this Agreement.
3. Any Warranty or Representation made in this Agreement is false or
misleading or is believed by CNB in good faith to be false or misleading.
4. There shall occur an event of default or other violation of any term,
condition, warranty, representation, or other provison of any promissory
note, instrument or agreement evidencing any of the Indebtedness or
executed in connection with any of the Indebtedness.
5. CNB in good ▇▇▇▇▇ ▇▇▇▇▇ itself insecure because the prospect of performance
of any covenant or agreement in this Agreement is impaired, or the value or
priority of CNB's security interest in any of the Collateral is impaired or
unenforceable.
4
IV. REMEDIES. Upon the occurrence of an Event of Default, in addition to any
other rights or remedies provided or allowed by law, Debtor understands and
agrees that CNB may, at its sole option, and without notice to Debtor, take one
or more of the following actions:
1. Acceleration of Maturity. Declare all of Debtor's Indebtedness immediately
due and payable.
2. Performance of Debtor's Obligations by CNB. Perform any of Debtor's
obligations under this Agreement.
3. Possession and Protection. Take possession of that Collateral not already
in CNB's possession; require Debtor or other persons in possession or
control of Collateral to assemble it and make it available to CNB at such
places as designated by CNB which are reasonably convenient to Debtor and
CNB; render the Collateral unusable without removing it, enter upon such
properties where the Collateral might be located; and take such actions as
CNB deems necessary or appropriate to protect its interest in the
Collateral.
4. Expenses. Incur any expenses which CNB deems necessary in exercising any
rights, remedies or powers under this Agreement or applicable law,
including reasonable attorneys' fees and legal costs and expenses, whether
or not a lawsuit is filed.
5. Additional Collateral. Demand that Debtor provide enough additional
Collateral to satisfy CNB.
6. Setoff. Exercise all rights of setoff to the same effect and in the same
manner as if no Collateral had been given.
7. Notice. Notify other interested persons or entities of the default,
acceleration and other actions by CNB.
8. Suit, Retention or Disposition of Collateral. ▇▇▇ the Debtor or any other
person or entity liable for the Indebtedness; retain the Collateral in
satisfaction of the Indebtedness; dispose of the Collateral and apply the
proceeds of disposition to the Indebtedness and the costs, expenses and
attorneys' fees which CNB has incurred pursuant to this Agreement
(including attorneys' fees allocable to CNB's in-house counsel) in such
order and manner as CNB desires.
V. RULES AND CONSTRUE AGREEMENT. Debtor understands and agrees that:
1. Definitions. All terms used to describe the Collateral which are defined
in the Code, shall have the respective meanings as such terms are so
defined.
2. Time of Essence. Time is of the essence of this Agreement.
3. Waiver. CNB's acceptance of partial or delinquent payments or failure of
CNB to exercise any right or remedy shall not be deemed a waiver of any
obligation of Debtor or right of CNB nor constitute a modification of this
Agreement, nor constitute a waiver of any other similar default
subsequently occurring.
4. Complete Agreement. This Agreement, together with any exhibits, is intended
by CNB and Debtor as a final expression of their agreement and is intended
as a complete statement of the terms and conditions of their agreement.
5. Assignments, etc. The provisions of this Agreement are hereby made
applicable to and shall inure to the benefit of CNB's successors and
assigns and bind Debtor's heirs, legatees, devisees, administrators,
executors, successors and assigns.
6. Law Governing. This Agreement shall be construed and governed by the laws
of the State of California.
7. Multiple Debtors. When more than one Debtor signs this Agreement all agree
that:
a. Construction - whenever the word "Debtor" appears in this Agreement,
it shall mean "each Debtor."
b. Breach - breach of any Covenant or Warranty by any Debtor may, at
CNB's option, be treated as a breach by all Debtors.
c. Liability - the liability of each Debtor is joint and several and the
discharge of any Debtor, for any reason other than full
5
payment, or any extension, forbearance, change of rate of interest, or
acceptance, release or substitution of security or any impairment or
suspension of CNB's remedies or rights against one Debtor, shall not
affect the liability of any other Debtor.
d. Waiver - all Debtors waive the right to require CNB to proceed against
one Debtor before any other or to pursue any other remedy in CNB's
power.
8. Notice. All notices to be provided under this Agreement shall be in writing
and delivered, if to Debtor, at the address of its Chief Executive Office
stated in this Agreement, and if to CNB, at its address stated in this
Agreement, or such other address as one party shall give notice of to the
other party as provided herein.
9. Severability. If any provision of this Agreement shall be held to be
prohibited or unenforceable under applicable law, such provision shall be
ineffective only to the extent of such prohibition or unenforceability,
without invalidating the remainder of such provisions or any remaining
provisions of this Agreement.
10. Headings. Section and subsection headings in this Agreement are included
for convenience of reference only and shall not be a part of this Agreement
for any purpose or be given any substantive effect.
11. Amendment or Modification. No provision or term of this Agreement may be
modified, amended or waived without the prior written consent of CNB.
Dated: August 18, 2000
Digital Insight Corporation, A Delaware Corporation
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Senior Vice President/CFO/Secretary
6