EXHIBIT 10.6
AMENDED AND RESTATED SECURITY AGREEMENT
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This AMENDED AND RESTATED SECURITY AGREEMENT (this "Agreement") dated as of
November 30, 2001, is entered into by and among CCC INFORMATION SERVICES INC., a
Delaware corporation (the "Borrower"); the other persons or entities which are
listed on the signature pages hereof as debtors or which from time to time
become parties hereto as debtors by executing a joinder hereto (collectively,
including the Borrower, the "Debtors" and individually each a "Debtor"); and
LASALLE BANK NATIONAL ASSOCIATION, a national banking association in its
capacity as Administrative Agent for the Lenders described below (in such
capacity, the "Administrative Agent").
W I T N E S S E T H:
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WHEREAS, the Administrative Agent, certain lenders (the "Previous Lenders")
and the Borrower entered into that certain Amended and Restated Credit Facility
Agreement dated as of October 29, 1998 (as heretofore amended or otherwise
modified, the "Previous Credit Agreement");
WHEREAS, in connection with the Previous Credit Agreement, the
Administrative Agent and the Borrower entered into that certain Amended and
Restated Security Agreement dated as of April 17, 2001 (as heretofore amended or
otherwise modified, the "Previous Borrower Security Agreement);
WHEREAS, in connection with the Previous Credit Agreement, the
Administrative Agent and certain other Debtors entered into that certain
Domestic Subsidiary Security Agreement dated as of April 17, 2001 (as heretofore
amended or otherwise modified, the "Previous Domestic Subsidiary Security
Agreement");
WHEREAS, the Administrative Agent, certain of the lenders party to the
Previous Credit Agreement (the "Lenders") and the Borrower desire to amend and
restate the Previous Credit Agreement and enter into that certain Second Amended
and Restated Credit Facility Agreement dated as of the date hereof (as may be
further amended, restated or otherwise modified from time to time, the "Credit
Agreement") and, in connection therewith, desire to amend and restate the
Previous Borrower Security Agreement and the Previous Domestic Subsidiary
Security Agreement pursuant to the terms of this Agreement;
WHEREAS, each of the Debtors other than the Borrower is simultaneously
herewith executing and delivering an Amended and Restated Guaranty dated as of
the date hereof pursuant to which such Debtors will guaranty (as amended,
restated or otherwise modified from time to time hereafter, the "Guaranty") the
obligations of the Borrower under the Credit Agreement, the Notes and other Loan
Documents;
WHEREAS, each of the other Debtors, as a direct or indirect subsidiary of
Borrower, will derive substantial direct and indirect economic benefits from the
extension of financial accommodations to Borrower under the Credit Agreement;
and
WHEREAS, the obligations of the Borrower under the Credit Agreement and the
obligations of each other Debtor 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 Credit Agreement 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," "Account Debtor," "Certificated Security," "Chattel Paper,"
"Commercial Tort Claim," "Deposit Account," "Document," "Electronic Chattel
Paper," "Equipment," "Financial Asset," "Fixture," "Goods,"
"Health-Care-Insurance Receivable," "Inventory," "Instrument," "Investment
Property," "Letter of Credit Rights," "Payment Intangibles," "Proceeds,"
"Security," "Security Entitlement," "Software," "Supporting Obligations" and
"Uncertificated Security" have the respective meanings assigned thereto in the
UCC (as defined below); (b) capitalized terms which are not otherwise defined
have the respective meanings assigned thereto in the Credit Agreement; and (c)
the following terms have the following meanings (such definitions to be
applicable to both the singular and plural forms of such terms):
"Assignee Deposit Account" - see Section 4.
"ChoiceParts LLC" means ChoiceParts, LLC, a Delaware limited liability
company and any successor thereto."
"ChoiceParts LLC Interest" means all equity ownership and any other
interest of any Debtor in ChoiceParts LLC, existing from time to time,
including, without limitation, all Certificated Securities and Uncertificated
Securities in ChoiceParts LLC, and any and all dividends, distributions and
amounts or additional securities received or receivable or otherwise distributed
in respect of or in exchange for the foregoing, whether as a result of any
reorganization, merger, consolidation, interest split, interest dividend,
conversion, preemptive right or otherwise, together with all proceeds of the
foregoing."
"Collateral" - see Section 2.
"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
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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.
"Control" has the meaning given to such term in Article 8 or Article 9 of
the UCC, as applicable.
"Default" means any Event of Default under Article 7 of the Credit
Agreement.
"Excepted Equity Interests"- means those equity interests set forth on
Schedule IX hereto.
"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 programs, mask works, goodwill,
registrations, licenses, franchises, tax refund claims, guarantee claims,
Payment Intangibles, 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 ▇▇▇ 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 or which is an issuer of a Letter of Credit.
"Liabilities" means, as to each Debtor, all obligations (monetary or
otherwise) of such Debtor under the Credit Agreement, any Note, the Guaranty,
any other Loan Document to which it is a party and any other document or
instrument executed in connection therewith including any reimbursement
obligations of such Debtor in respect of Letters of Credit and, in the case of
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the Borrower, all Hedging Obligations owed to any Lender or any Affiliate of
such Lender, 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 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 modified from time
to time; provided that, as used in Section 7 hereof, "UCC" shall mean the
Uniform Commercial Code as in effect from time to time in any applicable
jurisdiction.
"Value" means, with respect to any Collateral, the greater of book value or
fair market value.
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 reaffirms and assigns to the Administrative
Agent for the benefit of the Lender Parties, and reaffirms 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
(collectively, the "Collateral"):
All of such Debtor's:
(i) Accounts, including Health-Care-Insurance Receivables;
(ii) Certificated Securities (other than Excepted Equity Interests);
(iii) Chattel Paper, including Electronic 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;
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(v) Any Commercial Tort Claims described on Schedule V;
(vi) Deposit Accounts;
(vii) Documents;
(viii) Financial Assets (other than the Excepted Equity Interests);
(ix) General Intangibles (other than Excepted Equity Interests);
(x) Goods (including all of its Equipment, Fixtures and Inventory),
and all embedded software, accessions, additions, attachments,
improvements, substitutions and replacements thereto and therefor;
(xi) Instruments;
(xii) Intellectual Property;
(xiii) Intellectual-Property-Related Assets;
(xiv) Investment Property (other than the Excepted Equity Interests);
(xv) Letter-of-Credit Rights;
(xvi) money (of every jurisdiction whatsoever);
(xvii) Security Entitlements;
(xviii) Supporting Obligations;
(xix) Uncertificated Securities (other than the Excepted Equity
Interests);
(xx) The ChoiceParts LLC Interest; and
(xxi) to the extent not included in the foregoing, other personal
property of any kind or description;
together with all books, records, writings, databases,
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 that to the extent that the provisions of
any lease or license of Computer Hardware and Software or
Intellectual Property or Intellectual Property Related Assets
expressly prohibit (which prohibition is enforceable under
applicable law) such Debtor's the assignment thereof, and grant
of a security interest therein, the Administrative Agent will not
enforce its security interest in such lease or license (other
than in respect of the Proceeds thereof) for so long as such
prohibition continues, it being understood that upon request of
the Administrative Agent, such Debtor will in good faith use
reasonable efforts to obtain consent for the creation of
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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.
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, claims, security interests and encumbrances 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 (if any), 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 (1) licensed to
Debtor or (2) owned by Debtor 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 Organic Documents 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
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(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 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 (other than
Instruments which are to be deposited for collection in the ordinary course of
business in accordance with the terms of the Credit Agreement), 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 bailee, warehouseman or other third party with whom such
Debtor's tangible Collateral is located and the addresses where such tangible
Collateral is located other than (a) tangible Collateral located with such
Debtor's customers in the ordinary course of business and (b) tangible
Collateral located with any other third party in the ordinary course of business
which Collateral with any third-party has an aggregate Value of $100,000 or
less; 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 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
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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 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 reasonably 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.
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6. Agreements of the Debtors. Each Debtor (a) at the Administrative Agent's
request, at any time and from time to time, shall execute and deliver to the
Administrative Agent such financing statements, amendments and other documents
and do such acts as the Administrative Agent reasonably deems necessary in order
to establish and maintain valid, attached and perfected first security interests
in the Collateral in favor of the Lenders, free and clear of all Liens and
claims and rights of third parties whatsoever except Permitted Liens and each
Debtor hereby irrevocably authorizes the Administrative Agent at any time, and
from time to time, to file in any jurisdiction any initial financing statements
and amendments thereto that (i) indicate the Collateral (y) as all assets of
such Debtor or words of similar effect, regardless of whether any particular
asset comprised in the Collateral falls within the scope of Article 9 of the UCC
of the jurisdiction wherein such financing statement or amendment is filed, or
(z) as being of an equal or lesser scope or within greater detail, and (ii)
contain any other information required by Section 5 of Article 9 of the UCC of
the jurisdiction wherein such financing statement or amendment is filed
regarding the sufficiency or filing office acceptance of any financing statement
or amendment, including (y) whether such Debtor is an organization, the Type of
Organization, the Organization ID Number issued to such Debtor and (z) in the
case of a financing statement filed as a fixture filing or indicating Collateral
to be extracted collateral or timber to be cut, a sufficient description of real
property to which the Collateral relates, such Debtor further ratifies and
affirms its authorization for any financing statements and/or amendments
thereto, filed by the Administrative Agent in any jurisdiction prior to the date
of this Agreement; (b) will keep all its Inventory and other tangible Collateral
at (i) its address(es) shown on Schedules I and II hereto, (ii) such other
addresses of which such Debtor shall have given the Administrative Agent not
less than 10 days' prior written notice, (iii) the premises of its customers in
the ordinary course of business, (iv) third party locations with respect to
which an acknowledgement contemplated in Section 6(r) has been provided, and (v)
any other third party location in the ordinary course of business provided that
the Value of such Inventory and other tangible Collateral does not exceed
$100,000 in the aggregate at such location or $500,000 in the aggregate for all
such locations, and will not maintain any place of business at any location
other than (x) its address(es) shown on Schedules I and II hereto, and (ii) such
other addresses of which such Debtor shall have given the Administrative Agent
not less than 10 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 promptly and,
in any event within five Business Days) notify Administrative Agent in writing
upon acquiring or otherwise obtaining any Collateral consisting of Chattel Paper
and 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
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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 Equipment and other Goods useful and necessary in its business 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 (and, in any
event, within five Business Days) 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 (and, in any
event, within five Business Days) 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 (and, in any event, within five Business Days) notify
Administrative Agent in writing upon acquiring or otherwise obtaining any
Collateral after the date hereof consisting of Deposit Accounts (with respect to
which Debtor is required to deliver a Deposit Account Control Agreement pursuant
to the Credit Agreement), Investment Property, Letter-of-Credit Rights or
Electronic Chattel Paper and, upon the request of Administrative Agent, will
promptly execute (and cause third parties to 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 (and, in any event, within five Business Days) 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
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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 in the possession of a particular third
party, will obtain an acknowledgment from such third party that it is holding
the Collateral for the benefit of the Administrative Agent, other than (i)
Collateral with customers of such Debtor in the ordinary course of business,
(ii) tangible Collateral located with a bailee, warehouseman or other third
party in the ordinary course of business and having an aggregate Value of
$100,000 or less, provided, that the aggregate Value of all such tangible
Collateral located with all such bailees, warehousemen or other third parties
that have not executed an acknowledgement is less than $500,000, (iii)
Certificated Securities, and (iv) Goods covered by a Document; (s) will promptly
(and, in any event, within five Business Days) 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 without giving the
Administrative Agent thirty (30) days prior written notice thereof; (u) will not
change its legal name without providing Administrative Agent with at least 30
days prior written notice; (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 such Debtor's Collateral; and (w)
further agrees to take other action reasonably requested by the Administrative
Agent to insure the attachment, perfection and first priority of (subject to
Permitted Liens), and the ability of the Administrative Agent to enforce, the
security interests in any and all of the Collateral including, without
limitation, (i) executing, delivering and, where appropriate, filing financing
statements and amendments relating thereto under the UCC, to the extent, if any,
that the Debtor's signature thereon is required therefor, (ii) complying with
any provision of any statute, regulation or treaty of the United States as to
any Collateral if compliance with such provision is a condition to attachment,
perfection or priority of (subject to Permitted Liens), or ability of the
Administrative Agent to enforce, the security interests in such Collateral,
(iii) obtaining governmental and other third-party consents and approvals,
including without limitation, any consent of any licensor, lessor or other
Person obligated on Collateral, other than (a) with respect to Collateral
located with a customer of such Debtor in the ordinary course of business and
(b) with respect to tangible Collateral located with bailee, warehouseman or
other third party in the ordinary course of business having an aggregate Value
of $100,000 or less, provided, that the aggregate Value of all such tangible
Collateral located with all such bailees, warehousemen and other third parties
is less than or equal to $500,000, (iv) obtaining waivers from mortgagees and
landlords in form and substance satisfactory to the Administrative Agent other
than with respect to Borrower's leased premises set forth on Schedule II (other
than the World Trade Center Chicago, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇),
and (v) taking all actions required by the UCC in effect from time to time or by
other law, as applicable in any relevant UCC jurisdiction, or by other law as
applicable in any foreign jurisdiction.
11
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.
7. Default. Default and Remedies upon a Default.
(i) If a Default shall have occurred and be continuing, the Administrative
Agent may exercise (or cause its sub-agents to exercise) any or all of
the remedies available to it (or to such sub-agents) under this
Agreement.
(ii) Without limiting the generality of the foregoing, if a Default shall
have occurred and be continuing, the Administrative Agent may exercise
on behalf of the Lenders all the rights of a secured party under the
UCC (whether or not in effect in the jurisdiction where such rights
are exercised) with respect to any Collateral and, in addition, the
Administrative Agent may, without being required to give any notice,
except as herein provided or as may be required by mandatory
provisions of law, withdraw all cash held in the Assignee Deposit
Account and apply such cash as provided in Section 8 and, if there
shall be no such cash or if such cash shall be insufficient to pay all
the Liabilities in full, sell, lease, license or otherwise dispose of
the Collateral or any part thereof. Notice of any such sale or other
disposition shall be given to the relevant Debtors as required in
Section 9.
8. Application of Proceeds.
(i) If a Default shall have occurred and be continuing, the Administrative
Agent may apply the proceeds of any sale or other disposition of all
or any part of the Collateral, in the order set forth in Section 1.5.3
of the Credit Agreement. The Administrative Agent may make such
distributions hereunder in cash or in kind or, on a ratable basis, in
any combination thereof.
(ii) All distributions made by the Administrative Agent pursuant to this
Section shall be final (except in the event of manifest error) and the
Administrative Agent shall have no duty to inquire as to the
application by any Lender or any amount distributed to it.
9. Authority to Administer Collateral. Each Debtor irrevocably appoints the
Administrative Agent its true and lawful attorney with full power of
substitution, in the name of such Debtor, any Lender or otherwise, for the sole
use and benefit of the Lenders, but at Debtors' expense, to the extent permitted
by law to exercise, at any time and from time to time while a
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Default shall have occurred and be continuing, all or any of the following
powers with respect to all or any of such Debtor's Collateral (to the extent
necessary to pay the Liabilities in full):
(i) to demand, ▇▇▇ for, collect, receive and give acquittance for any
and all monies due or to become due upon or by virtue thereof;
(ii) to settle, compromise, compound, prosecute or defend any action or
proceeding with respect thereto;
(iii) to sell, lease, license or otherwise dispose of the same or the
Proceeds thereof, as fully and effectually as if the Administrative
Agent were the absolute owner thereof, and
(iv) to extend the time of payment of any or all thereof and to make any
allowance or other adjustment with reference thereto;
provided that, except in the case of Collateral that is perishable or threatens
to decline speedily in value or is of a type customarily sold on a recognized
market, the Administrative Agent will give the relevant Debtor at least ten (10)
days' prior written notice of the time and place of any public sale thereof or
the time after which any private sale or other intended disposition thereof will
be made.
10. Limitation on Duty in Respect of Collateral. Beyond the exercise of
reasonable care in the custody and preservation thereof, the Administrative
Agent will have no duty as to any Collateral in its possession or control or in
the possession or control of any sub-agent or bailee or any income therefrom or
as to the preservation of rights against prior parties or any other rights
pertaining thereto. The Administrative Agent will be deemed to have exercised
reasonable care in the custody and preservation of the Collateral in its
possession or control if such Collateral is accorded treatment substantially
equal to that which it accords its own property, and will not be liable or
responsible for any loss or damage to any Collateral, or for any diminution in
the value thereof, by reason of any act or omission of any sub-agent or bailee
selected by the Administrative Agent in good faith or by reason of any act or
omission by the Administrative Agent pursuant to instructions from the
Administrative Agent, except to the extent that such liability arises from the
Administrative Agent's gross negligence or willful misconduct.
To the extent that applicable law imposes duties on the Administrative
Agent to exercise remedies in a commercially reasonable manner, each Debtor
acknowledges and agrees that it is not commercially unreasonable for the
Administrative Agent (a) to fail to incur expenses reasonably deemed significant
by the Administrative Agent to prepare Collateral for disposition or otherwise
to complete raw material or work-in-process into finished goods or other
finished products for disposition, (b) to fail to obtain third-party consents
for access to Collateral to be disposed of, or to obtain or, if not required by
other law, to fail to obtain governmental or third-party consents for the
collection or disposition of Collateral to be collected or disposed of, (c) to
fail to exercise collection remedies against Account Debtors or other Persons
obligated on Collateral or to remove liens or encumbrances on or any adverse
claims against Collateral, (d) to exercise collection remedies against Account
Debtors and other Persons obligated on Collateral
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directly or through the use of collection agencies and other collection
specialists, (e) to advertise dispositions of Collateral through publications or
media of general circulation, whether or not the Collateral is of a specialized
nature, (f) to contact other Persons, whether or not in the same business as
such Debtor, for expressions of interest in acquiring all or any portion of the
Collateral, (g) to hire one or more professional auctioneers to assist in the
disposition of Collateral, whether or not the collateral is of a specialized
nature, (h) to dispose of Collateral by utilizing Internet sites that provide
for the auction of assets of the types included in the Collateral or that have
the reasonable capability of doing so, or that match buyers and sellers of
assets, (i) to dispose of assets in wholesale rather than retail markets, (j) to
disclaim disposition warranties, including, without limitation, any warranties
of title, (k) to purchase insurance of credit enhancements to insure the
Administrative Agent against risks of loss, collection or disposition of
Collateral, or to provide to the Administrative Agent a guaranteed return from
the collection or disposition of Collateral, or (l) to the extent deemed
appropriate by the Administrative Agent, to obtain the services of other
brokers, investment bankers, consultants and other professionals to assist the
Administrative Agent in the collection or disposition of any of the Collateral.
Each Debtor acknowledges that the purpose of this Section is to provide
non-exhaustive indications of what actions or omissions by the Administrative
Agent would not be commercially unreasonable in the Administrative Agent's
exercise of remedies against the Collateral and that other actions or omissions
by the Administrative Agent shall not be deemed commercially unreasonable solely
on account of not being indicated in this Section. Without limitation upon the
foregoing, nothing contained in this Section shall be construed to grant any
right to a Debtor or to impose any duties on the Administrative Agent that would
not have been granted or imposed by this Agreement or by applicable law in the
absence of this Section.
11. General.
(i) Any notice from the Administrative Agent to any Debtor, if mailed,
shall be deemed given five days after the date mailed by prepaid
registered or certified United States mail (return receipt
requested), addressed to such Debtor either at such Debtor's
address shown on Schedule I hereto or at such other address as
such Debtor shall have specified in writing to the Administrative
Agent as its address for notices hereunder.
(ii) 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) paid
or incurred by the Administrative Agent or any Lender in
endeavoring to collect the Liabilities of such Debtor, or any
part thereof, and in enforcing this Agreement against such
Debtor, and such obligations will themselves be Liabilities.
(iii) 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.
(iv) This Agreement shall remain in full force and effect until all
Liabilities have been paid in full and all Commitments have
terminated. If at any time all or any part of
14
any payment theretofore applied by the Administrative Agent or
any Lender to any of the Liabilities is or must be rescinded or
returned by the Administrative Agent or such Lender 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, 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 had not been made.
(v) This Agreement shall be governed by and construed in accordance
with the internal laws of the State of Illinois (including,
without limitation, 735 Illinois Compiled Statutes ss.105/5-5).
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
held to be prohibited or invalid under applicable law, such
provision shall be ineffective only to the extent of such
prohibition or invalidity, without invalidating the remainder of
such provision or the remaining provisions of this Agreement.
(vi) The rights and privileges of the Administrative Agent hereunder
shall inure to the benefit of its successors and assigns.
(vii) 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.
(viii) At any time after the date of this Agreement, one or more
additional Persons may become parties hereto by executing and
delivering to the Administrative Agent a joinder to this
Agreement together with supplements to the Schedules hereto
setting forth all relevant information with respect to such party
as of the date of such delivery. Immediately upon such execution
and delivery (and without any further action), each such
additional Person will become a party to, and will be bound by
all the terms of, this Agreement and the Schedules attached
hereto shall be deemed to be automatically amended by the
supplements to the Schedules provided by such Person.
12. JURISDICTION; VENUE. 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
15
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.
13. JURY TRIAL WAIVER. 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.
14. ChoiceParts LLC. In the event that at any time after the date of this
Agreement the ChoiceParts LLC Interest (i) is dealt in or traded on a securities
exchange or in a securities market, (ii) by its terms expressly provides that it
is a security governed by Article 8 of the UCC, (iii) is an investment company
security or (iv) is held in a securities account, a Debtor will promptly notify
the Administrative Agent in writing of such event, and will promptly execute
such documents, and do such other acts or things reasonably deemed appropriate
by Administrative Agent to deliver to Administrative Agent Control of the
ChoiceParts LLC Interest. Each Debtor represents and warrants that none of the
events described in clauses (i), (ii), (iii) or (iv) has occurred and is
existing as of the date of this Agreement. Each Debtor also agrees that if such
Debtor ever receives a certificate representing any of its equity interests in
ChoiceParts LLC, such Debtor shall promptly notify the Administrative Agent and
upon the request of the Administrative Agent, such Debtor agrees that it will
promptly deliver all such certificates accompanied by appropriate membership
powers duly endorsed in blank to the Administrative Agent. No Debtor will
contest in any manner the perfection or priority of Administrative Agent's Lien
on the Choice Parts LLC Interest.
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15. This Agreement shall become effective, and shall amend and restate the
Previous Borrower Security Agreement and the Previous Domestic Subsidiary
Security Agreement upon the execution of this Agreement by the parties signatory
hereto as of the date hereof (the "Effective Date"); and from and after the
Effective Date, (i) all references made to the Previous Borrower Security
Agreement or the Previous Domestic Subsidiary Security Agreement in the Loan
Documents or in any other instrument or document shall, without more, be deemed
to refer to this Agreement, as may hereafter be amended, restated or otherwise
modified, and (ii) the Previous Borrower Security Agreement and the Previous
Domestic Subsidiary Security Agreement shall be deemed amended and restated in
its entirety hereby.
16. Debtors have herewith and heretofore executed and delivered to
Administrative Agent certain other Loan Documents that are not being amended and
restated, and each Debtor hereby acknowledges and agrees that, notwithstanding
the execution and delivery of this Agreement, such other Loan Documents (as
amended or otherwise modified) to which it is a party remains in full force and
effect and each Debtor hereby reaffirms such other Loan Documents to which it is
a party and the rights and remedies of the Administrative Agent thereunder, the
obligations of Debtors thereunder.
(SIGNATURE PAGES FOLLOW)
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IN WITNESS WHEREOF, this Agreement has been duly executed as of the day and
year first above written.
DEBTORS:
CCC INFORMATION SERVICES, INC.,
a Delaware corporation,
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President and
Chief Financial Officer
CCC CONSUMER SERVICES INC.,
a Delaware corporation,
CCC PARTSCO HOLDINGS, INC.,
a Delaware corporation
CCC CONSUMER SERVICES SOUTHEAST INC.,
a Delaware corporation
ASSET MANAGEMENT INC.,
a Delaware corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President,
Chief Financial Officer and Treasurer
LASALLE BANK NATIONAL
ASSOCIATION, as Administrative Agent
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Sr. Vice President