GUARANTEE AND COLLATERAL AGREEMENT
dated as of
August 20, 2004,
among
CCC INFORMATION SERVICES GROUP INC.,
CCC INFORMATION SERVICES INC.,
THE SUBSIDIARIES OF CCC INFORMATION SERVICES INC.
IDENTIFIED HEREIN
and
CREDIT SUISSE FIRST BOSTON,
as Collateral Agent
===================
TABLE OF CONTENTS
ARTICLE I
Definitions
SECTION 1.01. Credit Agreement 1
SECTION 1.02. Other Defined Terms 1
ARTICLE II
Guarantee
SECTION 2.01. Guarantee 7
SECTION 2.02. Guarantee of Payment 7
SECTION 2.03. No Limitations, Etc. 7
SECTION 2.04. Reinstatement 8
SECTION 2.05. Agreement To Pay; Subrogation 8
SECTION 2.06. Information 8
ARTICLE III
Pledge of Securities
SECTION 3.01. Pledge 9
SECTION 3.02. Delivery of the Pledged Collateral 9
SECTION 3.03. Representations, Warranties and Covenants 10
SECTION 3.04. Certification of Limited Liability Company Interests and Limited
Partnership Interests 11
SECTION 3.05. Registration in Nominee Name; Denominations 11
SECTION 3.06. Voting Rights; Dividends and Interest 11
ARTICLE IV
Security Interests in Personal Property
SECTION 4.01. Security Interest 14
SECTION 4.02. Representations and Warranties 15
SECTION 4.03. Covenants 17
SECTION 4.04. Other Actions 20
SECTION 4.05. Covenants Regarding Patent, Trademark and Copyright Collateral
22
ARTICLE V
Remedies
SECTION 5.01. Remedies upon Default 24
SECTION 5.02. Application of Proceeds 26
SECTION 5.03. Grant of License To Use Intellectual Property 27
SECTION 5.04. Securities Act, Etc. 27
ARTICLE VI
Indemnity, Subrogation and Subordination
SECTION 6.01. Indemnity and Subrogation 28
SECTION 6.02. Contribution and Subrogation 28
SECTION 6.03. Subordination 28
ARTICLE VII
Miscellaneous
SECTION 7.01. Notices 29
SECTION 7.02. Security Interest Absolute 29
SECTION 7.03. Survival of Agreement 29
SECTION 7.04. Binding Effect; Several Agreement 29
SECTION 7.05. Successors and Assigns 30
SECTION 7.06. Collateral Agent's Fees and Expenses; Indemnification 30
SECTION 7.07. Collateral Agent Appointed Attorney-in-Fact 31
SECTION 7.08. Applicable Law 31
SECTION 7.09. Waivers; Amendment 31
SECTION 7.10. WAIVER OF JURY TRIAL 32
SECTION 7.11. Severability 32
SECTION 7.12. Counterparts 32
SECTION 7.13. Headings 33
SECTION 7.14. Jurisdiction; Consent to Service of Process 33
SECTION 7.15. Termination or Release 33
SECTION 7.16. Additional Subsidiaries 34
SECTION 7.17. Right of Setoff 34
Schedules
Schedule I Subsidiary Guarantors
Schedule II Capital Stock; Debt Securities
Schedule III Intellectual Property
Exhibits
Exhibit A Form of Supplement
Exhibit B Form of Perfection Certificate
35
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[[NYCORP:2417984v4:4332W:10/19/04--04:31 p]]
GUARANTEE AND COLLATERAL AGREEMENT (this "Agreement") dated as of August
20, 2004, among CCC INFORMATION SERVICES GROUP INC., CCC INFORMATION SERVICES
INC., the Subsidiaries of CCC INFORMATION SERVICES INC. identified herein and
CREDIT SUISSE FIRST BOSTON ("CSFB"), as Collateral Agent (in such capacity, the
"Collateral Agent").
Reference is made to the Credit Agreement dated as of August 20, 2004 (as
amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"), among CCC Information Services Inc. (the "Borrower"), CCC
Information Services Group Inc. ("Holdings"), the lenders from time to time
party thereto (the "Lenders") and CSFB, as administrative agent (in such
capacity, the "Administrative Agent") and Collateral Agent. The Lenders and the
Issuing Bank (such term and each other capitalized term used but not defined in
this preliminary statement having the meaning given or ascribed to it in Article
I) have agreed to extend credit to the Borrower pursuant to, and upon the terms
and conditions specified in, the Credit Agreement. The obligations of the
Lenders and the Issuing Bank to extend credit to the Borrower are conditioned
upon, among other things, the execution and delivery of this Agreement by
Holdings, the Borrower and the Subsidiary Guarantors. Holdings and the
Subsidiary Guarantors are affiliates of the Borrower, will derive substantial
benefits from the extension of credit to the Borrower pursuant to the Credit
Agreement and are willing to execute and deliver this Agreement in order to
induce the Lenders and the Issuing Bank to extend such credit. Accordingly, the
parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Credit Agreement. (a) Capitalized terms used in this
Agreement and not otherwise defined herein have the meanings set forth in the
Credit Agreement. All terms defined in the New York UCC (as such term is
defined herein) and not defined in this Agreement have the meanings specified
therein. All references to the Uniform Commercial Code shall mean the New York
UCC.
(b) The rules of construction specified in Section 1.02 of the Credit
Agreement also apply to this Agreement.
SECTION 1.02. Other Defined Terms. As used in this Agreement, the following
terms have the meanings specified below:
"Account" shall have the meaning assigned to such term in Section 9-102 of
the New York UCC.
"Account Debtor" shall mean any person who is or who may become obligated to any
Grantor under, with respect to or on account of an Account.
"Accounts Receivable" shall mean all Accounts and all right, title and
interest in any returned goods, together with all rights, titles, securities and
guarantees with respect thereto, including any rights to stoppage in transit,
replevin, reclamation and resales, and all related security interests, liens and
pledges, whether voluntary or involuntary, in each case whether now existing or
owned or hereafter arising or acquired.
"Administrative Agent" shall have the meaning assigned to such term in the
preliminary statement.
"Article 9 Collateral" shall have the meaning assigned to such term in Section
4.01.
"Borrower" shall have the meaning assigned to such term in the preliminary
statement.
"Chattel Paper" shall have the meaning assigned to such term in Section
9-102 of the New York UCC.
"Claiming Guarantor" shall have the meaning assigned to such term in Section
6.02.
"Collateral" shall mean the Article 9 Collateral and the Pledged
Collateral.
"Collateral Agent" shall have the meaning assigned to such term in the preamble.
"Commercial Tort Claim" shall have the meaning assigned to such term in Section
9-102 of the New York UCC.
"Commodity Intermediary" shall have the meaning assigned to such term in
Section 9-102 of the New York UCC.
"Contributing Guarantor" shall have the meaning assigned to such term in
Section 6.02.
"Copyright License" shall mean any written agreement, now or hereafter in
effect, granting any right to any third party under any Copyright now or
hereafter owned by any Grantor or that such Grantor otherwise has the right to
license, or granting any right to any Grantor under any copyright now or
hereafter owned by any third party, and all rights of such Grantor under any
such agreement.
"Copyrights" shall mean all of the following now owned or hereafter acquired by
any Grantor: (a) all copyright rights in any work subject to the copyright laws
of the United States or any other country, whether as author, assignee,
transferee or otherwise, and (b) all registrations and applications for
registration of any such copyright in the United States or any other country,
including registrations, recordings, supplemental registrations and pending
applications for registration in the United States Copyright Office (or any
successor office or any similar office in any other country), including those
listed on Schedule III.
"Credit Agreement" shall have the meaning assigned to such term in the
preliminary statement.
"CSFB" shall have the meaning assigned to such term in the preamble.
"Deposit Account" shall have the meaning assigned to such term in Section
9-102 of the New York UCC.
"Electronic Chattel Paper" shall have the meaning assigned to such term in
Section 9-102 of the New York UCC.
"Entitlement Holder" shall have the meaning assigned to such term in Section
8-102 of the New York UCC.
"Entitlement Order" shall have the meaning assigned to such term in Section
8-102 of the New York UCC.
"Equipment" shall have the meaning assigned to such term in Section 9-102 of the
New York UCC.
"Equity Interests" shall mean shares of capital stock, partnership interests,
membership interests in a limited liability company, beneficial interests in a
trust or other equity interests in any person, or any obligations convertible
into or exchangeable for, or giving any person a right, option or warrant to
acquire such equity interests or such convertible or exchangeable obligations.
"Federal Securities Laws" shall have the meaning assigned to such term in
Section 5.04.
"Financial Asset" shall have the meaning assigned to such term in Section
8-102 of the New York UCC.
"General Intangibles" shall have the meaning assigned to such term in Section
9-102 of the New York UCC and shall include all choses in action and causes of
action and all other intangible personal property of any Grantor of every kind
and nature (other than Accounts) now owned or hereafter acquired by any Grantor,
including all rights and interests in partnerships, limited partnerships,
limited liability companies and other unincorporated entities, corporate or
other business records, indemnification claims, contract rights (including
rights under leases, whether entered into as lessor or lessee, Hedging
Agreements and other agreements), Intellectual Property, goodwill,
registrations, franchises, tax refund claims and any letter of credit,
guarantee, claim, security interest or other security held by or granted to any
Grantor to secure payment by an Account Debtor of any of the Accounts.
"Grantors" shall mean Holdings, the Borrower and the Subsidiary Guarantors.
"Guarantors" shall mean Holdings and the Subsidiary Guarantors.
"Holdings" shall have the meaning assigned to such term in the preliminary
statement.
"Instrument" shall have the meaning assigned to such term in Section 9-102
of the New York UCC.
"Intellectual Property" shall mean all intellectual and similar property of
any Grantor of every kind and nature now owned or hereafter acquired by any
Grantor, including inventions, designs, Patents, Copyrights, Licenses,
Trademarks, trade secrets, confidential or proprietary technical and business
information, know-how, show-how or other data or information, software and
databases and all embodiments or fixations thereof and related documentation,
registrations and franchises, and all additions, improvements and accessions to,
and books and records describing or used in connection with, any of the
foregoing.
"Inventory" shall have the meaning assigned to such term in Section 9-102 of the
New York UCC.
"Investment Property" shall have the meaning assigned to such term in Section
9-102 of the New York UCC.
"Lenders" shall have the meaning assigned to such term in the preliminary
statement.
"Letter-of-Credit Rights" shall have the meaning assigned to such term in
Section 9-102 of the New York UCC.
"License" shall mean any Patent License, Trademark License, Copyright
License or other license or sublicense agreement to which any Grantor is a
party, including those listed on Schedule III.
"Loan Document Obligations" shall mean (a) the due and punctual payment of
(i) the principal of and interest (including interest accruing during the
pendency of any bankruptcy, insolvency, receivership or other similar
proceeding, regardless of whether allowed or allowable in such proceeding) on
the Loans, when and as due, whether at maturity, by acceleration, upon one or
more dates set for prepayment or otherwise, (ii) each payment required to be
made by the Borrower under the Credit Agreement in respect of any Letter of
Credit, when and as due, including payments in respect of reimbursement of
disbursements, interest thereon and obligations to provide cash collateral, and
(iii) all other monetary obligations of the Borrower to any of the Secured
Parties under the Credit Agreement and each of the other Loan Documents,
including fees, costs, expenses and indemnities, whether primary, secondary,
direct, contingent, fixed or otherwise (including monetary obligations incurred
during the pendency of any bankruptcy, insolvency, receivership or other similar
proceeding, regardless of whether allowed or allowable in such proceeding), (b)
the due and punctual performance of all other obligations of the Borrower under
or pursuant to the Credit Agreement and each of the other Loan Documents, and
(c) the due and punctual payment and performance of all the obligations of each
other Loan Party under or pursuant to this Agreement and each of the other Loan
Documents.
"New York UCC" shall mean the Uniform Commercial Code as from time to time in
effect in the State of New York.
"Obligations" shall mean (a) the Loan Document Obligations and (b) the due and
punctual payment and performance of all obligations of each Loan Party under
each Hedging Agreement that (i) is in effect on the Closing Date with a
counterparty that is a Lender or an Affiliate of a Lender as of the Closing Date
or (ii) is entered into after the Closing Date with a counterparty that is a
Lender or an Affiliate of a Lender at the time such Hedging Agreement is entered
into.
"Patent License" shall mean any written agreement, now or hereafter in effect,
granting to any third party any right to make, use or sell any invention on
which a Patent, now or hereafter owned by any Grantor or that any Grantor
otherwise has the right to license, is in existence, or granting to any Grantor
any right to make, use or sell any invention on which a patent, now or hereafter
owned by any third party, is in existence, and all rights of any Grantor under
any such agreement.
"Patents" shall mean all of the following now owned or hereafter acquired by any
Grantor: (a) all letters patent of the United States or the equivalent thereof
in any other country, all registrations and recordings thereof, and all
applications for letters patent of the United States or the equivalent thereof
in any other country, including registrations, recordings and pending
applications in the United States Patent and Trademark Office (or any successor
or any similar offices in any other country), including those listed on Schedule
III, and (b) all reissues, continuations, divisions, continuations-in-part,
renewals or extensions thereof, and the inventions disclosed or claimed therein,
including the right to make, use and/or sell the inventions disclosed or claimed
therein.
"Perfection Certificate" shall mean a certificate substantially in the form of
Exhibit B, completed and supplemented with the schedules and attachments
contemplated thereby, and duly executed by a Responsible Officer of the Borrower
and Holdings.
"Pledged Collateral" shall have the meaning assigned to such term in Section
3.01.
"Pledged Debt Securities" shall have the meaning assigned to such term in
Section 3.01.
"Pledged Securities" shall mean any promissory notes, stock certificates or
other securities now or hereafter included in the Pledged Collateral, including
all certificates, instruments or other documents representing or evidencing any
Pledged Collateral.
"Pledged Stock" shall have the meaning assigned to such term in Section 3.01.
"Proceeds" shall have the meaning assigned to such term in Section 9-102 of the
New York UCC.
"Secured Parties" shall mean (a) the Lenders, (b) the Administrative Agent, (c)
the Collateral Agent, (d) any Issuing Bank, (e) each counterparty to any Hedging
Agreement with a Loan Party that either (i) is in effect on the Closing Date
with a counterparty that is a Lender or an Affiliate of a Lender as of the
Closing Date or (ii) is entered into after the Closing Date with a counterparty
that is a Lender or an Affiliate of a Lender at the time such Hedging Agreement
is entered into, (f) the beneficiaries of each indemnification obligation
undertaken by any Loan Party under any Loan Document and (g) the successors and
assigns of each of the foregoing.
"Securities Account" shall have the meaning assigned to such term in
Section 8-501 of the New York UCC.
"Securities Intermediary" shall have the meaning assigned to such term in
Section 8-102 of the New York UCC.
"Security Interest" shall have the meaning assigned to such term in Section
4.01.
"Subsidiary Guarantors" shall mean (a) the Subsidiaries identified on
Schedule I and (b) each other Subsidiary that becomes a party to this Agreement
as a Subsidiary Guarantor after the Closing Date.
"Trademark License" shall mean any written agreement, now or hereafter in
effect, granting to any third party any right to use any trademark now or
hereafter owned by any Grantor or that any Grantor otherwise has the right to
license, or granting to any Grantor any right to use any trademark now or
hereafter owned by any third party, and all rights of any Grantor under any such
agreement.
"Trademarks" shall mean all of the following now owned or hereafter acquired by
any Grantor: (a) all trademarks, service marks, trade names, corporate names,
company names, business names, fictitious business names, trade styles, trade
dress, logos, other source or business identifiers, designs and general
intangibles of like nature, now existing or hereafter adopted or acquired, all
registrations and recordings thereof, and all applications filed in connection
therewith, including registrations and applications in the United States Patent
and Trademark Office (or any successor office) or any similar offices in any
State of the United States or any other country or any political subdivision
thereof, and all extensions or renewals thereof, including those listed on
Schedule III, (b) all goodwill associated therewith or symbolized thereby and
(c) all other assets, rights and interests that uniquely reflect or embody such
goodwill.
ARTICLE II
Guarantee
SECTION 2.01. Guarantee. Each Guarantor unconditionally guarantees, jointly
with the other Guarantors and severally, as a primary obligor and not
merely as a surety, the due and punctual payment and performance of the
Obligations. Each of the Guarantors further agrees that the Obligations may be
extended or renewed, in whole or in part, without notice to or further assent
from it, and that it will remain bound upon its guarantee notwithstanding any
extension or renewal of any Obligation. Each of the Guarantors waives
presentment to, demand of payment from and protest to the Borrower or any other
Loan Party of any of the Obligations, and also waives notice of acceptance of
its guarantee and notice of protest for nonpayment.
SECTION 2.02. Guarantee of Payment. Each of the Guarantors further agrees
that its guarantee hereunder constitutes a guarantee of payment when due and not
of collection, and waives any right to require that any resort be had by
the Collateral Agent or any other Secured Party to any security held for the
payment of the Obligations or to any balance of any Deposit Account or credit on
the books of the Collateral Agent or any other Secured Party in favor of the
Borrower or any other person.
SECTION 2.03. No Limitations, Etc. (a) Except for termination of a
Guarantor's obligations hereunder as expressly provided in Section 7.15, the
obligations of each Guarantor hereunder shall not be subject to any reduction,
limitation, impairment or termination for any reason, including any claim of
waiver, release, surrender, alteration or compromise, and shall not be subject
to any defense or setoff, counterclaim, recoupment or termination whatsoever by
reason of the invalidity, illegality or unenforceability of the Obligations or
otherwise. Without limiting the generality of the foregoing, the obligations of
each Guarantor hereunder shall not be discharged or impaired or otherwise
affected by (i) the failure of the Collateral Agent or any other Secured Party
to assert any claim or demand or to enforce any right or remedy under the
provisions of any Loan Document or otherwise; (ii) any rescission, waiver,
amendment or modification of, or any release from any of the terms or provisions
of, any Loan Document or any other agreement, including with respect to any
other Guarantor under this Agreement; (iii) the release of any security held by
the Collateral Agent or any other Secured Party for the Obligations or any of
them; (iv) any default, failure or delay, wilful or otherwise, in the
performance of the Obligations; or (v) any other act or omission that may or
might in any manner or to any extent vary the risk of any Guarantor or otherwise
operate as a discharge of any Guarantor as a matter of law or equity (other than
the indefeasible payment in full in cash of all the Obligations). Each
Guarantor expressly authorizes the Collateral Agent to take and hold security
for the payment and performance of the Obligations, to exchange, waive or
release any or all such security (with or without consideration), to enforce or
apply such security and direct the order and manner of any sale thereof in its
sole discretion or to release or substitute any one or more other guarantors or
obligors upon or in respect of the Obligations, all without affecting the
obligations of any Guarantor hereunder.
(b) To the fullest extent permitted by applicable law, each Guarantor waives
any defense based on or arising out of any defense of the Borrower or any
other Loan Party or the unenforceability of the Obligations or any part thereof
from any cause, or the cessation from any cause of the liability of the Borrower
or any other Loan Party, other than the indefeasible payment in full in cash of
all the Obligations. The Collateral Agent and the other Secured Parties may, at
their election, foreclose on any security held by one or more of them by one or
more judicial or nonjudicial sales, accept an assignment of any such security in
lieu of foreclosure, compromise or adjust any part of the Obligations, make any
other accommodation with the Borrower or any other Loan Party or exercise any
other right or remedy available to them against the Borrower or any other Loan
Party, without affecting or impairing in any way the liability of any Guarantor
hereunder except to the extent the Obligations have been fully and indefeasibly
paid in full in cash. To the fullest extent permitted by applicable law, each
Guarantor waives any defense arising out of any such election even though such
election operates, pursuant to applicable law, to impair or to extinguish any
right of reimbursement or subrogation or other right or remedy of such Guarantor
against the Borrower or any other Loan Party, as the case may be, or any
security.
SECTION 2.04. Reinstatement. Each of the Guarantors agrees that its
guarantee hereunder shall continue to be effective or be reinstated, as the case
may be, if at any time payment, or any part thereof, of any Obligation is
rescinded or must otherwise be restored by the Collateral Agent or any other
Secured Party upon the bankruptcy or reorganization of the Borrower, any other
Loan Party or otherwise.
SECTION 2.05. Agreement To Pay; Subrogation. In furtherance of the
foregoing and not in limitation of any other right that the Collateral Agent or
any other Secured Party has at law or in equity against any Guarantor by virtue
hereof, upon the failure of the Borrower or any other Loan Party to pay any
Obligation when and as the same shall become due, whether at maturity, by
acceleration, after notice of prepayment or otherwise, each Guarantor hereby
promises to and will forthwith pay, or cause to be paid, to the Collateral Agent
for distribution to the applicable Secured Parties in cash the amount of
such unpaid Obligation. Upon payment by any Guarantor of any sums to the
Collateral Agent as provided above, all rights of such Guarantor against the
Borrower or any other Guarantor arising as a result thereof by way of right of
subrogation, contribution, reimbursement, indemnity or otherwise shall in all
respects be subject to Article VI.
SECTION 2.06. Information. Each Guarantor assumes all responsibility for
being and keeping itself informed of the Borrower's and each other Loan Party's
financial condition and assets, and of all other circumstances bearing upon the
risk of nonpayment of the Obligations and the nature, scope and extent of the
risks that such Guarantor assumes and incurs hereunder, and agrees that neither
the Collateral Agent nor any other Secured Party will have any duty to advise
such Guarantor of information known to it or any of them regarding such
circumstances or risks.
ARTICLE III
Pledge of Securities
SECTION 3.01. Pledge. As security for the payment or performance, as the
case may be, in full of the Obligations, each Grantor hereby pledges to the
Collateral Agent, its successors and assigns, for the ratable benefit of the
Secured Parties, and hereby grants to the Collateral Agent, its successors and
assigns, for the ratable benefit of the Secured Parties, a security interest in
all of such Grantor's right, title and interest in, to and under (a) Equity
Interests owned by such Grantor on the date hereof (including all such Equity
Interests listed on Schedule II) and any other Equity Interests obtained in the
future by such Grantor and the certificates representing all such Equity
Interests (collectively referred to herein as the "Pledged Stock"); provided,
however, that the Pledged Stock shall not include (i) more than 65% of the
issued and outstanding voting Equity Interests of any Foreign Subsidiary, (ii)
to the extent applicable law requires that a Subsidiary of such Grantor issue
directors' qualifying shares, such shares or nominee or other similar shares or
(iii) any Equity Interests of a person that is not the Borrower or a Subsidiary
(including any treasury stock of Holdings); (b)(i) the debt securities held by
such Grantor on the date hereof (including all such debt securities listed
opposite the name of such Grantor on Schedule II), (ii) any debt securities in
the future issued to such Grantor (excluding debt securities issued by a Foreign
Subsidiary if the obligations of such Foreign Subsidiary under such debt
securities are secured by the assets of any Foreign Subsidiary) and (iii) the
promissory notes and any other instruments evidencing such debt securities
(collectively referred to herein as the "Pledged Debt Securities"); (c) all
other property that may be delivered to and held by the Collateral Agent
pursuant to the terms of this Section 3.01; (d) subject to Section 3.06, all
payments of principal or interest, dividends, cash, instruments and other
property from time to time received, receivable or otherwise distributed in
respect of, in exchange for or upon the conversion of, and all other Proceeds
received in respect of, the securities referred to in clauses (a) and (b) above;
(e) subject to Section 3.06, all rights and privileges of such Grantor with
respect to the securities and other property referred to in clauses (a), (b),
(c) and (d) above; and (f) all Proceeds of any of the foregoing (the items
referred to in clauses (a) through (f) above being collectively referred to as
the "Pledged Collateral").
SECTION 3.02. Delivery of the Pledged Collateral. (a) Each Grantor agrees
promptly to deliver or cause to be delivered to the Collateral Agent any and all
Pledged Securities.
(b) Each Grantor will cause any Indebtedness for borrowed money in excess of
$250,000 owed to such Grantor by any person that is evidenced by a duly
executed promissory note to be pledged and delivered to the Collateral Agent
pursuant to the terms hereof.
(c) Upon delivery to the Collateral Agent, (i) any Pledged Securities shall
be accompanied by undated stock powers duly executed in blank or other undated
instruments of transfer reasonably satisfactory to the Collateral Agent and by
such other instruments and documents as the Collateral Agent may reasonably
request and (ii) all other property comprising part of the Pledged Collateral
shall be accompanied by proper instruments of assignment duly executed by the
applicable Grantor and such other instruments or documents as the Collateral
Agent may reasonably request. Each delivery of Pledged Securities shall be
accompanied by a schedule describing the securities, which schedule shall be
attached hereto as Schedule II and made a part hereof; provided that failure to
attach any such schedule hereto shall not affect the validity of the pledge of
such Pledged Securities. Each schedule so delivered shall supplement any prior
schedules so delivered.
SECTION 3.03. Representations, Warranties and Covenants. The Grantors
jointly and severally represent, warrant and covenant to and with the Collateral
Agent, for the benefit of the Secured Parties, that:
(a) Schedule II correctly sets forth the percentage of the issued and
outstanding shares of each class of the Equity Interests of the issuer thereof
represented by such Pledged Stock and includes all Equity Interests, debt
securities and promissory notes required to be pledged hereunder;
(b) the Pledged Stock and Pledged Debt Securities (solely with respect to
Pledged Debt Securities issued by a person that is not a Subsidiary of Holdings
or an Affiliate of any such Subsidiary, to the best of each Grantor's knowledge)
have been duly and validly authorized and issued by the issuers thereof and
(i) in the case of Pledged Stock, are fully paid and nonassessable and (ii) in
the case of Pledged Debt Securities (solely with respect to Pledged Debt
Securities issued by a person that is not a Subsidiary of Holdings or an
Affiliate of any such Subsidiary, to the best of each Grantor's knowledge), are
legal, valid and binding obligations of the issuers thereof;
(c) except for the security interests granted hereunder, each of the
Grantors (i) is and, subject to any transfers made in compliance with the Credit
Agreement, will continue to be the direct owner, beneficially and of record, of
the Pledged Securities indicated on Schedule II as owned by such Grantor, (ii)
holds the same free and clear of all Liens, other than Liens created by this
Agreement and Liens permitted by Section 6.02 of the Credit Agreement, (iii)
will make no assignment, pledge, hypothecation or transfer of, or create or
permit to exist any security interest in or other Lien on, the Pledged
Collateral, other than Liens created by this Agreement and Liens permitted by
Section 6.02 of the Credit Agreement and transfers made in compliance with the
Credit Agreement, and (iv) subject to Section 3.06, will cause any and all
Pledged Collateral, whether for value paid by the Grantor or otherwise, to be
forthwith deposited with the Collateral Agent and pledged or assigned hereunder;
(d) except for restrictions and limitations imposed by the Loan Documents or
securities laws generally and restrictions permitted by Section 6.06(b) of the
Credit Agreement, the Pledged Collateral is and will continue to be freely
transferable and assignable, and none of the Pledged Collateral is or will be
subject to any option, right of first refusal, shareholders agreement, charter
or by-law provisions or contractual restriction of any nature that might
prohibit, impair, delay or otherwise affect the pledge of such Pledged
Collateral hereunder, the sale or disposition thereof pursuant hereto or the
exercise by the Collateral Agent of rights and remedies hereunder;
(e) each Grantor (i) has the power and authority to pledge the Pledged
Collateral pledged by it hereunder in the manner hereby done or contemplated and
(ii) will defend its title or interest thereto or therein against any and all
liens (other than the Lien created by this Agreement and Liens permitted by
Section 6.02 of the Credit Agreement), however arising, of all persons
whomsoever;
(f) no consent or approval of any Governmental Authority, any securities
exchange or any other person was or is necessary to the validity of the pledge
effected hereby (other than such as have been obtained and are in full force and
effect);
(g) by virtue of the execution and delivery by the Grantors of this
Agreement, when any Pledged Securities are delivered to the Collateral Agent in
accordance with this Agreement, the Collateral Agent will obtain a legal, valid
and perfected first-priority lien upon and security interest in such Pledged
Securities as security for the payment and performance of the Obligations; and
(h) the pledge effected hereby is effective to vest in the Collateral Agent,
for the benefit of the Secured Parties, the rights of the Collateral Agent in
the Pledged Collateral as set forth herein.
SECTION 3.04. Certification of Limited Liability Company Interests and
Limited Partnership Interests. Each interest in any limited liability company
or limited partnership controlled by any Grantor and pledged hereunder shall be
represented by a certificate, shall be a "security" within the meaning of
Article 8 of the New York UCC and shall be governed by Article 8 of the New York
UCC.
SECTION 3.05. Registration in Nominee Name; Denominations. The Collateral
Agent, on behalf of the Secured Parties, shall have the right to hold the
Pledged Securities (i) in the name of the applicable Grantor, endorsed or
assigned in blank or in favor of the Collateral Agent or (ii) at any time during
the continuation of an Event of Default, in its sole and absolute
discretion and without notice to any Grantor, in its own name as pledgee or the
name of its nominee (as pledgee or as subagent). Each Grantor will promptly
give to the Collateral Agent copies of any notices or other communications
received by it with respect to Pledged Securities registered in the name of such
Grantor. At any time during the continuation of an Event of Default, the
Collateral Agent shall have the right, in its sole and absolute discretion and
without notice to any Grantor, to exchange the certificates representing Pledged
Securities for certificates of smaller or larger denominations for any purpose
consistent with this Agreement.
SECTION 3.06. Voting Rights; Dividends and Interest. (a) Unless an Event
of Default shall have occurred and be continuing and the Collateral Agent shall
have given the Grantors notice of its intent to exercise its rights under this
Agreement (which notice shall be deemed to have been given immediately upon the
occurrence of an Event of Default with respect to Holdings, the Borrower or any
Subsidiary under paragraph (g) or (h) of Article VII of the Credit Agreement):
(i) Each Grantor shall be entitled to exercise any and all voting and/or
other consensual rights and powers inuring to an owner of Pledged Securities or
any part thereof for any purpose consistent with the terms of this Agreement,
the Credit Agreement and the other Loan Documents; provided, however, that such
rights and powers shall not be exercised in any manner that could materially and
adversely affect the rights inuring to a holder of any Pledged Securities
or the rights and remedies of any of the Collateral Agent or the other Secured
Parties under this Agreement or the Credit Agreement or any other Loan Document
or the ability of the Secured Parties to exercise the same.
(ii) The Collateral Agent shall execute and deliver to each Grantor, or
cause to be executed and delivered to each Grantor, all such proxies, powers of
attorney and other instruments as a Grantor may reasonably request for the
purpose of enabling such Grantor to exercise the voting and/or consensual rights
and powers it is entitled to exercise pursuant to subparagraph (i) above.
(iii) Each Grantor shall be entitled to receive and retain any and all
dividends, interest, principal and other distributions paid on or distributed in
respect of the Pledged Securities to the extent and only to the extent that such
dividends, interest, principal and other distributions are permitted by, and
otherwise paid or distributed in accordance with, the terms and conditions of
the Credit Agreement, the other Loan Documents and applicable law; provided,
however, that any noncash dividends, interest, principal or other distributions
that would constitute Pledged Stock or Pledged Debt Securities, whether
resulting from a subdivision, combination or reclassification of the outstanding
Equity Interests of the issuer of any Pledged Securities or received in exchange
for Pledged Securities or any part thereof, or in redemption thereof, or as a
result of any merger, consolidation, acquisition or other exchange of assets to
which such issuer may be a party or otherwise, shall be and become part of the
Pledged Collateral, and, if received by any Grantor, shall not be commingled by
such Grantor with any of its other funds or property but shall be held separate
and apart therefrom, shall be held in trust for the benefit of the Collateral
Agent and shall be forthwith delivered to the Collateral Agent in the same form
as so received (with any necessary endorsement). This paragraph (iii) shall not
apply to dividends between or among the Borrower and the Subsidiary Guarantors
only of property subject to a perfected security interest under this Agreement;
provided that the Borrower takes any actions the Collateral Agent reasonably
specifies to ensure the continuation of its perfected security interest in such
property under this Agreement.
(b) Upon the occurrence and during the continuance of an Event of Default,
after the Collateral Agent shall have notified (or shall be deemed to have
notified) the Grantors of the suspension of their rights under paragraph
(a)(iii) of this Section 3.06, then all rights of each Grantor to dividends,
interest, principal or other distributions that such Grantor is authorized to
receive pursuant to paragraph (a)(iii) of this Section 3.06 shall cease, and all
such rights shall thereupon become vested in the Collateral Agent, which
shall have the sole and exclusive right and authority to receive and retain such
dividends, interest, principal or other distributions. All dividends, interest,
principal or other distributions received by each Grantor contrary to the
provisions of this Section 3.06 shall be held in trust for the benefit of the
Collateral Agent, shall be segregated from other property or funds of such
Grantor and shall be forthwith delivered to the Collateral Agent upon demand in
the same form as so received (with any necessary endorsement). Any and all
money and other property paid over to or received by the Collateral Agent
pursuant to the provisions of this paragraph (b) shall be retained by the
Collateral Agent in an account to be established by the Collateral Agent upon
receipt of such money or other property and shall be applied in accordance with
the provisions of Section 5.02. After all Events of Default have been cured or
waived and each applicable Grantor has delivered to the Administrative Agent
certificates to that effect, the Collateral Agent shall, promptly after all such
Events of Default have been cured or waived, repay to each applicable Grantor
(without interest) all dividends, interest, principal or other distributions
that such Grantor would otherwise be permitted to retain pursuant to the terms
of paragraph (a)(iii) of this Section 3.06 and that remain in such account.
(c) Upon the occurrence and during the continuance of an Event of Default,
after the Collateral Agent shall have notified (or shall be deemed to have
notified) the Grantors of the suspension of their rights under paragraph (a)(i)
of this Section 3.06, then all rights of each Grantor to exercise the voting and
consensual rights and powers it is entitled to exercise pursuant to
paragraph (a)(i) of this Section 3.06, and the obligations of the Collateral
Agent under paragraph (a)(ii) of this Section 3.06, shall cease, and all such
rights shall thereupon become vested in the Collateral Agent, which shall have
the sole and exclusive right and authority to exercise such voting and
consensual rights and powers; provided that, unless otherwise directed by the
Required Lenders, the Collateral Agent shall have the right from time to time
following and during the continuance of an Event of Default to permit the
Grantors to exercise such rights.
(d) Any notice given by the Collateral Agent to the Grantors exercising its
rights under paragraph (a) of this Section 3.06 (i) may be given by telephone if
promptly confirmed in writing, (ii) may be given to one or more of the
Grantors at the same or different times and (iii) may suspend the rights of the
Grantors under paragraph (a)(i) or paragraph (a)(iii) in part without suspending
all such rights (as specified by the Collateral Agent in its sole and absolute
discretion) and without waiving or otherwise affecting the Collateral Agent's
rights to give additional notices from time to time suspending other rights so
long as an Event of Default has occurred and is continuing.
ARTICLE IV
Security Interests in Personal Property
SECTION 4.01. Security Interest. (a) As security for the payment or
performance, as the case may be, in full of the Obligations, each Grantor hereby
assigns and pledges to the Collateral Agent, its successors and assigns,
for the ratable benefit of the Secured Parties, and hereby grants to the
Collateral Agent, its successors and assigns, for the ratable benefit of the
Secured Parties, a security interest (the "Security Interest") in, all right,
title or interest in or to any and all of the following assets and properties
now owned or at any time hereafter acquired by such Grantor or in which such
Grantor now has or at any time in the future may acquire any right, title or
interest (collectively, the "Article 9 Collateral"):
(i) all Accounts;
(ii) all Chattel Paper;
(iii) all cash and Deposit Accounts;
(iv) all Documents (other than title documents relating to vehicles);
(v) all Equipment;
(vi) all General Intangibles;
(vii) all Instruments;
(viii) all Inventory;
(ix) all Investment Property (subject to the limitations contained in the
proviso to Section 3.01(a) and in the parenthetical that is in clause (ii) of
Section 3.01(b));
(x) all Letter-of-Credit Rights;
(xi) all Commercial Tort Claims (including those specified in Schedule 13 to
the Perfection Certificate);
(xii) all books and records pertaining to the Article 9 Collateral; and
(xiii) to the extent not otherwise included, all Proceeds and products of
any and all of the foregoing and all collateral security and guarantees given by
any person with respect to any of the foregoing.
Notwithstanding anything to the contrary in this Agreement, this Agreement shall
not constitute a grant of a security interest in and the Article 9 Collateral
shall not include (A) any vehicle covered by a certificate of title or
ownership, (B) any assets to the extent that such grant of a security interest
would violate a contractual obligation binding on such asset or (C) any
Letter-of-Credit Rights to the extent any Grantor is required by applicable law
to apply the proceeds of a drawing of such letter of credit for a specified
purpose; provided, however, that the limitation set forth in clause (B) above
shall not affect, limit, restrict or impair the grant by a Grantor of a security
interest pursuant to this Agreement in any such Article 9 Collateral to the
extent that an otherwise applicable prohibition or restriction on such grant is
rendered ineffective by any applicable law, including Section 9-406 or Section
9-408 of the New York UCC.
(b) Each Grantor hereby irrevocably authorizes the Collateral Agent at any
time and from time to time to file in any relevant jurisdiction any initial
financing statements (including fixture filings) with respect to the Article 9
Collateral or any part thereof and amendments thereto that (i) indicate the
Article 9 Collateral as all assets of such Grantor or words of similar effect
and (ii) contain the information required by Article 9 of the Uniform Commercial
Code of each applicable jurisdiction for the filing of any financing
statement or amendment, including (A) whether such Grantor is an organization,
the type of organization and any organizational identification number issued to
such Grantor and (B) in the case of a financing statement filed as a fixture
filing, a sufficient description of the real property to which such Article 9
Collateral relates. Each Grantor agrees to provide such information to the
Collateral Agent promptly upon request.
Each Grantor also ratifies its authorization for the Collateral Agent to
file in any relevant jurisdiction any initial financing statements or amendments
thereto if filed prior to the date hereof.
The Collateral Agent is further authorized to file with the United States
Patent and Trademark Office or United States Copyright Office (or any successor
office or any similar office in any other country) such documents as may be
necessary or advisable for the purpose of perfecting, confirming, continuing,
enforcing or protecting the Security Interest granted by each Grantor, without
the signature of any Grantor (to the extent permitted by applicable law), and
naming any Grantor or the Grantors as debtors and the Collateral Agent as
secured party.
(c) The Security Interest is granted as security only and shall not subject
the Collateral Agent or any other Secured Party to, or in any way alter or
modify, any obligation or liability of any Grantor with respect to or arising
out of the Article 9 Collateral.
SECTION 4.02. Representations and Warranties. The Grantors jointly and
severally represent and warrant to the Collateral Agent and the Secured Parties
that:
(a) Each Grantor has good and valid rights in and title to the Article 9
Collateral with respect to which it has purported to grant a Security Interest
hereunder and has full power and authority to grant to the Collateral Agent, for
the benefit of the Secured Parties, the Security Interest in such Article 9
Collateral pursuant hereto and to execute, deliver and perform its obligations
in accordance with the terms of this Agreement, without the consent or approval
of any other person other than any consent or approval that has been obtained.
(b) The Perfection Certificate has been duly prepared, completed and
executed and the information set forth therein (including (x) the exact legal
name of each Grantor and (y) the jurisdiction of organization of each Grantor)
is correct and complete as of the Closing Date. The Uniform Commercial Code
financing statements (including fixture filings, as applicable) or other
appropriate filings, recordings or registrations containing a description of the
Article 9 Collateral have been prepared by the Collateral Agent based upon
the information provided to the Administrative Agent in the Perfection
Certificate for filing in each governmental, municipal or other office specified
in Schedule 6 to the Perfection Certificate (or specified by notice from the
Borrower to the Administrative Agent after the Closing Date in the case of
filings, recordings or registrations required by Sections 5.06 or 5.09 of the
Credit Agreement), which are all the filings, recordings and registrations
(other than filings required to be made in the United States Patent and
Trademark Office and the United States Copyright Office in order to perfect the
Security Interest in the Article 0 Xxxxxxxxxx xxxxxxxxxx xx Xxxxxx Xxxxxx
Patents, registered Trademarks and registered Copyrights) that are necessary as
of the Closing Date to publish notice of and protect the validity of and to
establish a legal, valid and perfected security interest in favor of the
Collateral Agent (for the ratable benefit of the Secured Parties) in respect of
all Article 9 Collateral in which the Security Interest may be perfected by
filing, recording or registration in the United States (or any political
subdivision thereof) and its territories and possessions, and no further or
subsequent filing, refiling, recording, rerecording, registration or
reregistration is necessary in any such jurisdiction, except as provided under
applicable law with respect to the filing of continuation statements. Each
Grantor represents and warrants that a fully executed agreement in the form
hereof (or a short-form agreement hereof) and containing a description of all
Article 9 Collateral consisting of Intellectual Property with respect to United
States Patents and United States registered Trademarks (and Trademarks for which
United States registration applications are pending) and United States
registered Copyrights have been delivered to the Collateral Agent for recording
by the United States Patent and Trademark Office and the United States Copyright
Office pursuant to 00 X.X.X. 000, 00 X.X.X. 0000 or 17 U.S.C. 205 and the
regulations thereunder, as applicable, to protect the validity of and to
establish a legal, valid and perfected security interest in favor of the
Collateral Agent (for the ratable benefit of the Secured Parties) in respect of
all Article 9 Collateral consisting of Patents, Trademarks and Copyrights in
which a security interest may be perfected by filing, recording or registration
in the United States (or any political subdivision thereof) and its territories
and possessions, and no further or subsequent filing, refiling, recording,
rerecording, registration or reregistration is necessary (other than such
actions as are necessary to perfect the Security Interest with respect to any
Article 0 Xxxxxxxxxx xxxxxxxxxx xx Xxxxxx Xxxxxx Patents, Trademarks and
Copyrights (or registration or application for registration thereof) acquired or
developed after the date hereof).
(c) The Security Interest constitutes (i) a legal and valid security
interest in all Article 9 Collateral securing the payment and performance of the
Obligations, (ii) subject to the filings described in Section 4.02(b), a
perfected security interest in all Article 9 Collateral in which a security
interest may be perfected by filing, recording or registering a financing
statement or analogous document in the United States (or any political
subdivision thereof) and its territories and possessions pursuant to the Uniform
Commercial Code or other applicable law in such jurisdictions and (iii) a
security interest that shall be perfected in all Article 9 Collateral in which a
security interest may be perfected upon the receipt and recording of this
Agreement (or a short-form agreement hereof) with the United States Patent and
Trademark Office and the United States Copyright Office, as applicable. The
Security Interest is and shall be prior to any other Lien on any of the Article
9 Collateral, other than Liens expressly permitted to be prior to the Security
Interest pursuant to Section 6.02 of the Credit Agreement and Liens having
priority by operation of law.
(d) The Article 9 Collateral is owned by the Grantors free and clear of any
Lien, except for Liens expressly permitted pursuant to Section 6.02 of the
Credit Agreement. None of the Grantors has filed or consented to the filing of
(i) any financing statement or analogous document under the Uniform Commercial
Code or any other applicable laws covering any Article 9 Collateral, (ii) any
assignment in which any Grantor assigns any Collateral or any security agreement
or similar instrument covering any Article 9 Collateral with the United
States Patent and Trademark Office or the United States Copyright Office or
(iii) any assignment in which any Grantor assigns any Article 9 Collateral or
any security agreement or similar instrument covering any Article 9 Collateral
with any foreign governmental, municipal or other office, which financing
statement or analogous document, assignment, security agreement or similar
instrument is still in effect, except, in each case, for Liens expressly
permitted pursuant to Section 6.02 of the Credit Agreement. None of the
Grantors holds any Commercial Tort Claims except as indicated on the Perfection
Certificate.
SECTION 4.03. Covenants. (a) Each Grantor agrees to maintain, at its own
cost and expense, such complete and accurate records with respect to the Article
9 Collateral owned by it as is consistent with its current practices and in
accordance with such prudent and standard practices used in industries that are
the same as or similar to those in which such Grantor is engaged, but in any
event to include complete accounting records indicating all payments and
proceeds received with respect to any part of the Article 9 Collateral, and, at
such time or times as the Collateral Agent may reasonably request, promptly to
prepare and deliver to the Collateral Agent a duly certified schedule or
schedules in form and detail reasonably satisfactory to the Collateral Agent
showing the identity, amount and location of any and all Article 9 Collateral.
(b) Subject to any transfers made in compliance with the Credit Agreement,
each Grantor shall, at its own expense, take any and all actions necessary to
defend title to the Article 9 Collateral against all persons and to defend the
Security Interest of the Collateral Agent in the Article 9 Collateral and the
priority thereof against any Lien not expressly permitted pursuant to Section
6.02 of the Credit Agreement.
(c) Each Grantor agrees, at its own expense, to execute, acknowledge,
deliver and cause to be duly filed all such further instruments and documents
and take all such actions as the Collateral Agent may from time to time
reasonably request to better assure, preserve, protect and perfect the Security
Interest and the rights and remedies created hereby, including the payment of
any fees and Taxes required in connection with the execution and delivery of
this Agreement, the granting of the Security Interest and the filing of any
financing statements (including fixture filings) or other documents in
connection herewith or therewith. If any amount payable to any Grantor under or
in connection with any of the Article 9 Collateral shall be or become
evidenced by any promissory note or other instrument in excess of $250,000, such
note or instrument shall be promptly pledged and delivered to the Collateral
Agent, duly endorsed in a manner reasonably satisfactory to the Collateral
Agent.
Without limiting the generality of the foregoing, each Grantor hereby
authorizes the Collateral Agent, with prompt notice thereof to the Grantors, to
supplement this Agreement by supplementing Schedule III or adding additional
schedules hereto to specifically identify any asset or item of a Grantor that
may, in the Collateral Agent's judgment, constitute Copyrights, Licenses,
Patents or Trademarks; provided that any Grantor shall have the right,
exercisable within 30 days after it has been notified by the Collateral Agent of
the specific identification of such Collateral, to advise the Collateral Agent
in writing of any material inaccuracy of the representations and warranties made
by such Grantor hereunder with respect to such Collateral. Each Grantor agrees
that it will use its commercially reasonable efforts to take such action as
shall be necessary in order that all representations and warranties hereunder
shall be true and correct in all material respects with respect to such
Collateral within 30 days after the date it has been notified by the Collateral
Agent of the specific identification of such Collateral.
(d) Subject to and in accordance with the provisions of Section 5.07 of the
Credit Agreement, the Collateral Agent and such persons as the Collateral Agent
may reasonably designate shall have the right, at the Grantors' own cost and
expense, to inspect the Article 9 Collateral, all records related thereto (and
to make extracts and copies from such records) and the premises upon which any
of the Article 9 Collateral is located, to discuss the Grantors' affairs with
the officers of the Grantors and their independent accountants and to verify
under reasonable procedures the validity, amount, quality, quantity, value,
condition and status of, or any other matter relating to, the Article 9
Collateral, including, in the case of Accounts or other Article 9 Collateral in
the possession of any third person, by contacting Account Debtors (only upon the
occurrence and during the continuance of an Event of Default) or the third
person possessing such Article 9 Collateral for the purpose of making such a
verification. The Collateral Agent shall have the absolute right to share any
information it gains from such inspection or verification with any Secured
Party.
(e) At its option, the Collateral Agent may discharge past due Taxes,
assessments, charges, fees, Liens, security interests or other encumbrances at
any time levied or placed on the Article 9 Collateral and not permitted pursuant
to Section 6.02 of the Credit Agreement, and may pay for the maintenance
and preservation of the Article 9 Collateral to the extent any Grantor fails to
do so as required by the Credit Agreement or this Agreement, and each Grantor
jointly and severally agrees to reimburse the Collateral Agent on demand for any
payment made or any reasonable expense incurred by the Collateral Agent pursuant
to the foregoing authorization; provided, however, that nothing in this
paragraph shall be interpreted as excusing any Grantor from the performance of,
or imposing any obligation on the Collateral Agent or any Secured Party to cure
or perform, any covenants or other promises of any Grantor with respect to
Taxes, assessments, charges, fees, Liens, security interests or other
encumbrances and maintenance as set forth herein or in the other Loan Documents.
(f) If at any time any Grantor shall take a security interest in any
property of an Account Debtor or any other person to secure payment and
performance of an Account, such Grantor shall promptly assign such security
interest to the Collateral Agent for the ratable benefit of the Secured Parties.
Such assignment need not be filed of public record unless necessary to continue
the perfected status of the security interest against creditors of and
transferees from the Account Debtor or other person granting the security
interest.
(g) Each Grantor shall remain liable to observe and perform all the
conditions and obligations to be observed and performed by it under each
contract, agreement or instrument relating to the Article 9 Collateral, all in
accordance with the terms and conditions thereof, and each Grantor jointly and
severally agrees to indemnify and hold harmless the Collateral Agent and the
Secured Parties from and against any and all liability for such performance.
(h) None of the Grantors shall make or permit to be made an assignment,
pledge or hypothecation of the Article 9 Collateral or shall grant any other
Lien in respect of the Article 9 Collateral, except as permitted by Section 6.02
of the Credit Agreement. None of the Grantors shall make or permit to be made
any transfer of the Article 9 Collateral and each Grantor shall remain at all
times in possession or otherwise in control of the Article 9 Collateral owned by
it, except as expressly permitted by Section 6.05 of the Credit Agreement.
(i) None of the Grantors will, without the Collateral Agent's prior written
consent, grant any extension of the time of payment of any Accounts included in
the Article 9 Collateral, compromise, compound or settle the same for less than
the full amount thereof, release, wholly or partly, any person liable for the
payment thereof or allow any credit or discount whatsoever thereon, other than
extensions, credits, discounts, compromises, compoundings or settlements granted
or made in the ordinary course of business and consistent with its current
practices and in accordance with such standard practices used in industries that
are the same as or similar to those in which such Grantor is engaged.
(j) The Grantors, at their own expense, shall maintain or cause to be
maintained insurance covering physical loss or damage to the Inventory and
Equipment in accordance with the requirements set forth in Section 5.02 of the
Credit Agreement. Each Grantor irrevocably makes, constitutes and appoints the
Collateral Agent (and all officers, employees or agents designated by the
Collateral Agent) as such Grantor's true and lawful agent (and attorney-in-fact)
for the purpose, upon the occurrence and during the continuance of an Event of
Default, of making, settling and adjusting claims in respect of Article 9
Collateral under policies of insurance, endorsing the name of such Grantor on
any check, draft, instrument or other item of payment for the proceeds of such
policies of insurance and for making all determinations and decisions with
respect thereto. In the event that any Grantor at any time or times shall fail
to obtain or maintain any of the policies of insurance required hereby or under
the Credit Agreement or to pay any premium in whole or part relating thereto,
the Collateral Agent may, without waiving or releasing any obligation or
liability of the Grantors hereunder or any Default or Event of Default, in its
sole discretion, obtain and maintain such policies of insurance and pay such
premium and take any other actions with respect thereto as the Collateral Agent
deems advisable. All sums disbursed by the Collateral Agent in connection with
this paragraph, including reasonable attorneys' fees, court costs, expenses and
other charges relating thereto, shall be payable, upon demand, by the Grantors
to the Collateral Agent and shall be additional Obligations secured hereby.
(k) Each Grantor shall maintain, in form and manner reasonably satisfactory
to the Collateral Agent, records of its Chattel Paper and its books, records and
documents evidencing or pertaining thereto.
SECTION 4.04. Other Actions. In order to further insure the attachment,
perfection and priority of, and the ability of the Collateral Agent to enforce,
the Collateral Agent's security interest in the Article 9 Collateral, each
Grantor agrees, in each case at such Grantor's own expense, to take the
following actions with respect to the following Article 9 Collateral:
(a) Instruments. If any Grantor shall at any time hold or acquire any
Instruments with a value in excess of $250,000, such Grantor shall forthwith
endorse, assign and deliver the same to the Collateral Agent, accompanied by
such undated instruments of transfer or assignment duly executed in blank as the
Collateral Agent may from time to time reasonably request.
(b) Deposit Accounts. For each Deposit Account that any Grantor at any time
opens or maintains, such Grantor shall, as promptly as practicable
following (and in any event no later than 60 days following) the Closing Date
(or the date such account is opened, if after the Closing Date), either (i)
cause the depositary bank to agree to comply at any time with instructions from
the Collateral Agent to such depositary bank directing the disposition of funds
from time to time credited to such Deposit Account, without further consent of
such Grantor or any other person, pursuant to an agreement in form and substance
reasonably satisfactory to the Collateral Agent, or (ii) arrange for the
Collateral Agent to become the customer of the depositary bank with respect to
the Deposit Account, with the Grantor being permitted, only with the consent of
the Collateral Agent, to exercise rights to withdraw funds from such Deposit
Account. The Collateral Agent agrees with each Grantor that the Collateral
Agent shall not give any such instructions or withhold any withdrawal rights
from any Grantor unless an Event of Default has occurred and is continuing, or,
after giving effect to any withdrawal, would occur. The provisions of this
paragraph shall not apply to (A) any Deposit Account for which any Grantor, the
depositary bank and the Collateral Agent have entered into a cash collateral
agreement specially negotiated among such Grantor, the depositary bank and the
Collateral Agent for the specific purpose set forth therein, (B) Deposit
Accounts of which all or a substantial portion of the funds on deposit are used
for funding (1) payroll, (2) Taxes and (3) 401(k) and other retirement plans and
employee benefits, including rabbi trusts for deferred compensation and (C)
Deposit Accounts with a balance not in excess of $25,000 at any time).
(c) Investment Property. Except to the extent otherwise provided in Article
III, if any Grantor shall at any time hold or acquire any certificated
securities, such Grantor shall forthwith endorse, assign and deliver the same to
the Collateral Agent, accompanied by such undated instruments of transfer or
assignment duly executed in blank as the Collateral Agent may from time to time
reasonably request. If any securities now or hereafter acquired by any Grantor
are uncertificated and are issued to such Grantor or its nominee directly by the
issuer thereof, such Grantor shall promptly notify the Collateral Agent thereof
and, at the Collateral Agent's reasonable request and option, pursuant to an
agreement in form and substance reasonably satisfactory to the Collateral Agent,
either (i) cause the issuer to agree to comply with instructions from the
Collateral Agent as to such securities, without further consent of any Grantor
or such nominee, or (ii) arrange for the Collateral Agent to become the
registered owner of the securities. If any securities, whether certificated or
uncertificated, or other Investment Property now or hereafter acquired by any
Grantor are held by such Grantor or its nominee through a Securities
Intermediary or Commodity Intermediary, such Grantor shall promptly notify the
Collateral Agent thereof and, at the Collateral Agent's reasonable request and
option, pursuant to an agreement in form and substance reasonably satisfactory
to the Collateral Agent, either (i) cause such Securities Intermediary or (as
the case may be) Commodity Intermediary to agree to comply with Entitlement
Orders or other instructions from the Collateral Agent to such Securities
Intermediary as to such securities or other Investment Property, or (as the case
may be) to apply any value distributed on account of any commodity contract as
directed by the Collateral Agent to such Commodity Intermediary, in each case
without further consent of any Grantor or such nominee, or (ii) in the case of
Financial Assets (as governed by Article 8 of the New York UCC) or other
Investment Property held through a Securities Intermediary, arrange for the
Collateral Agent to become the Entitlement Holder with respect to such
Investment Property, with the Grantor being permitted, only with the consent of
the Collateral Agent, to exercise rights to withdraw or otherwise deal with such
Investment Property. The Collateral Agent agrees with each Grantor that the
Collateral Agent shall not give any such Entitlement Orders or instructions or
directions to any such issuer, Securities Intermediary or Commodity
Intermediary, and shall not withhold its consent to the exercise of any
withdrawal or dealing rights by any Grantor, unless an Event of Default has
occurred and is continuing, or, after giving effect to any such investment and
withdrawal rights would occur. The provisions of this paragraph shall not apply
to any Financial Assets credited to a Securities Account for which the
Collateral Agent is the Securities Intermediary.
(d) Electronic Chattel Paper and Transferable Records. If any Grantor at
any time holds or acquires an interest in any Electronic Chattel Paper or any
"transferable record," as that term is defined in Section 201 of the Federal
Electronic Signatures in Global and National Commerce Act, or in Section 16 of
the Uniform Electronic Transactions Act as in effect in any relevant
jurisdiction, such Grantor shall promptly notify the Collateral Agent thereof
and shall take such action as the Collateral Agent may reasonably request to
vest in the Collateral Agent control under New York UCC Section 9-105 of such
Electronic Chattel Paper or control under Section 201 of the Federal Electronic
Signatures in Global and National Commerce Act or, as the case may be, Section
16 of the Uniform Electronic Transactions Act, as so in effect in such
jurisdiction, of such transferable record. The Collateral Agent agrees with
such Grantor that the Collateral Agent will arrange, pursuant to procedures
reasonably satisfactory to the Collateral Agent and so long as such procedures
will not result in the Collateral Agent's loss of control, for the Grantor to
make alterations to the Electronic Chattel Paper or transferable record
permitted under UCC Section 9-105 or, as the case may be, Section 201 of the
Federal Electronic Signatures in Global and National Commerce Act or Section 16
of the Uniform Electronic Transactions Act for a party in control to allow
without loss of control, unless an Event of Default has occurred and is
continuing or would occur after taking into account any action by such Grantor
with respect to such Electronic Chattel Paper or transferable record.
(e) Letter-of-Credit Rights. If any Grantor is at any time a beneficiary
under a letter of credit now or hereafter issued in favor of such Grantor, such
Grantor shall promptly notify the Collateral Agent thereof and, at the request
and option of the Collateral Agent, such Grantor shall (to the extent permitted
by law), pursuant to an agreement in form and substance reasonably satisfactory
to the Collateral Agent, either (i) arrange for the issuer and any confirmer of
such letter of credit to consent to an assignment to the Collateral Agent of the
proceeds of any drawing under the letter of credit or (ii) arrange for the
Collateral Agent to become the transferee beneficiary of the letter of credit,
with the Collateral Agent agreeing, in each case, that the proceeds of any
drawing under the letter of credit are to be paid to the applicable Grantor
unless an Event of Default has occurred or is continuing.
(f) Commercial Tort Claims. If any Grantor shall at any time hold or
acquire a Commercial Tort Claim that has a reasonable possibility of yielding
proceeds in excess of $500,000, the Grantor shall promptly notify the Collateral
Agent thereof in a writing signed by such Grantor including a summary
description of such claim and grant to the Collateral Agent, for the benefit of
the Secured Parties, in such writing a security interest therein and in the
proceeds thereof, all upon the terms of this Agreement, with such writing to be
in form and substance reasonably satisfactory to the Collateral Agent.
SECTION 4.05. Covenants Regarding Patent, Trademark and Copyright
Collateral. (a) Each Grantor agrees that it will not, and will not permit any
of its licensees to, do any act, or omit to do any act, whereby any Patent that
is necessary to the conduct of such Grantor's business may become invalidated or
dedicated to the public, and agrees that it shall continue to xxxx any
products covered by a Patent with the relevant patent number as necessary and
sufficient to establish and preserve its maximum rights under applicable patent
laws.
(b) Each Grantor will, and will use its commercially reasonable efforts to
cause its licensees or its sublicensees to, for each Trademark necessary to the
conduct of such Grantor's business, (i) maintain any such owned Trademark in
full force free from any claim of abandonment or invalidity for nonuse, (ii)
maintain the quality of products and services offered under such Trademark,
(iii) display such Trademark with notice of Federal or foreign registration to
the extent necessary and sufficient to establish and preserve its maximum rights
under applicable law and (iv) not knowingly use or knowingly permit the use
of such Trademark in violation of any third-party rights.
(c) Each Grantor will, and will use its commercially reasonable efforts to
cause its licensees or sublicensees to, for each work covered by a Copyright
necessary to the conduct of such Grantor's business, continue to publish,
reproduce, display, adopt and distribute the work with appropriate copyright
notice as necessary and sufficient to establish and preserve its maximum rights
under applicable copyright laws.
(d) Each Grantor shall notify the Collateral Agent promptly if it knows or
has reason to know that any Patent, Trademark or Copyright necessary to the
conduct of its business may become abandoned, lost or dedicated to the public,
or of any materially adverse determination or development (including the
institution of, or any such determination or development in, any proceeding in
the United States Patent and Trademark Office, United States Copyright Office or
any court or similar office of any country) regarding such Grantor's ownership
of any Patent, Trademark or Copyright, its right to register the same, or its
right to keep and maintain the same.
(e) Each Grantor shall (i) inform the Collateral Agent on a quarterly basis
of each application by itself or through any agent, employee, licensee or
designee, for any owned Patent, Trademark or Copyright (or for the registration
of any Trademark or Copyright) with the United States Patent and Trademark
Office, United States Copyright Office or any office or agency in any political
subdivision of the United States or in any other country or any political
subdivision thereof, filed during the preceding three-month period, and (ii)
upon the request of the Collateral Agent, execute and deliver any and all
agreements, instruments, documents and papers as the Collateral Agent may
reasonably request to evidence the Collateral Agent's security interest in such
Patent, Trademark or Copyright, and each Grantor hereby appoints the Collateral
Agent as its attorney-in-fact to execute and file such writings for the
foregoing purposes, all acts of such attorney being hereby ratified and
confirmed; such power, being coupled with an interest, is irrevocable.
(f) Each Grantor will take all necessary steps that it deems appropriate
under the circumstances and are consistent with the practice in any proceeding
before the United States Patent and Trademark Office, United States Copyright
Office or any office or agency in any political subdivision of the United States
or in any other country or any political subdivision thereof, to maintain
and pursue each application relating to the owned Patents, Trademarks and/or
Copyrights necessary to the conduct of such Grantor's business (and to obtain
the relevant grant or registration) and to maintain each issued Patent and each
registration of the Trademarks and Copyrights that is necessary to the conduct
of such Grantor's business, including timely filings of applications for
renewal, affidavits of use, affidavits of incontestability and payment of
maintenance fees, and, if consistent with good business judgment, to initiate
opposition, interference and cancelation proceedings against third parties.
(g) In the event that any Grantor knows or has reason to believe that any
Article 9 Collateral consisting of a Patent, Trademark or Copyright that is
necessary to the conduct of such Grantor's business has been or is about to be
materially infringed, misappropriated or diluted by a third party, such Grantor
promptly shall notify the Collateral Agent and shall take such actions as it
deems appropriate under the circumstances and consistent with good business
judgment to protect such Article 9 Collateral.
(h) Upon the occurrence and during the continuance of an Event of Default,
each Grantor shall, at the request of the Collateral Agent, use its commercially
reasonable efforts to obtain all requisite consents or approvals by the licensor
of each Copyright License, Patent License or Trademark License to effect the
assignment of all such Grantor's right, title and interest thereunder to the
Collateral Agent, for the ratable benefit of the Secured Parties, or its
designee.
(i) Except upon the occurrence of an Event of Default, it is understood and
agreed that no filings shall be made, and no other actions shall be required or
taken, in any country other than the United States of America in order to
perfect the security interest granted hereunder in any Intellectual Property.
ARTICLE V
Remedies
SECTION 5.01. Remedies upon Default. Upon the occurrence and during the
continuance of an Event of Default, each Grantor agrees to deliver each item of
Collateral to the Collateral Agent on demand, and it is agreed that the
Collateral Agent shall have the right to take any of or all the following
actions at the same or different times: (a) with respect to any Article 9
Collateral consisting of Intellectual Property, on demand, to cause the Security
Interest to become an assignment, transfer and conveyance of any of or all
such Article 9 Collateral by the applicable Grantors to the Collateral Agent, or
to license or sublicense, whether general, special or otherwise, and whether on
an exclusive or nonexclusive basis, any such Article 9 Collateral throughout the
world on such terms and conditions and in such manner as the Collateral Agent
shall determine (other than in violation of any then-existing licensing
arrangements to the extent that waivers cannot be obtained), and (b) with or
without legal process and with or without prior notice or demand for
performance, to take possession of the Article 9 Collateral and without
liability for trespass to enter any premises where the Article 9 Collateral may
be located for the purpose of taking possession of or removing the Article 9
Collateral and, generally, to exercise any and all rights afforded to a secured
party under the Uniform Commercial Code or other applicable law. Without
limiting the generality of the foregoing, each Grantor agrees that the
Collateral Agent shall have the right, subject to the mandatory requirements of
applicable law, to sell or otherwise dispose of all or any part of the
Collateral at a public or private sale or at any broker's board or on any
securities exchange, for cash, upon credit or for future delivery as the
Collateral Agent shall deem appropriate. The Collateral Agent shall be
authorized at any such sale of securities (if it deems it advisable to do so) to
restrict the prospective bidders or purchasers to persons who will represent and
agree that they are purchasing the Collateral for their own account for
investment and not with a view to the distribution or sale thereof, and upon
consummation of any such sale the Collateral Agent shall have the right to
assign, transfer and deliver to the purchaser or purchasers thereof the
Collateral so sold. Each such purchaser at any such sale shall hold the
property sold absolutely, free from any claim or right on the part of any
Grantor, and each Grantor hereby waives (to the extent permitted by law) all
rights of redemption, stay and appraisal which such Grantor now has or may at
any time in the future have under any rule of law or statute now existing or
hereafter enacted.
The Collateral Agent shall give the applicable Grantors 10 days' written
notice (which each Grantor agrees is reasonable notice within the meaning of
Section 9-611 of the New York UCC or its equivalent in other jurisdictions) of
the Collateral Agent's intention to make any sale of Collateral. Such notice,
in the case of a public sale, shall state the time and place for such sale and,
in the case of a sale at a broker's board or on a securities exchange, shall
state the board or exchange at which such sale is to be made and the day on
which the Collateral, or portion thereof, will first be offered for sale at such
board or exchange. Any such public sale shall be held at such time or times
within ordinary business hours and at such place or places as the Collateral
Agent may fix and state in the notice (if any) of such sale. At any such sale,
the Collateral, or portion thereof, to be sold may be sold in one lot as an
entirety or in separate parcels, as the Collateral Agent may (in its sole and
absolute discretion) determine. The Collateral Agent shall not be obligated to
make any sale of any Collateral if it shall determine not to do so, regardless
of the fact that notice of sale of such Collateral shall have been given. The
Collateral Agent may, without notice or publication, adjourn any public or
private sale or cause the same to be adjourned from time to time by announcement
at the time and place fixed for sale, and such sale may, without further notice,
be made at the time and place to which the same was so adjourned. In case any
sale of all or any part of the Collateral is made on credit or for future
delivery, the Collateral so sold may be retained by the Collateral Agent until
the sale price is paid by the purchaser or purchasers thereof, but the
Collateral Agent shall not incur any liability in case any such purchaser or
purchasers shall fail to take up and pay for the Collateral so sold and, in case
of any such failure, such Collateral may be sold again upon like notice. At any
public (or, to the extent permitted by law, private) sale made pursuant to this
Section, any Secured Party may bid for or purchase, free (to the extent
permitted by law) from any right of redemption, stay, valuation or appraisal on
the part of any Grantor (all said rights being also hereby waived and released
to the extent permitted by law), the Collateral or any part thereof offered for
sale and may make payment on account thereof by using any claim then due and
payable to such Secured Party from any Grantor as a credit against the purchase
price, and such Secured Party may, upon compliance with the terms of sale, hold,
retain and dispose of such property without further accountability to any
Grantor therefor. For purposes hereof, a written agreement to purchase the
Collateral or any portion thereof shall be treated as a sale thereof; the
Collateral Agent shall be free to carry out such sale pursuant to such agreement
and no Grantor shall be entitled to the return of the Collateral or any portion
thereof subject thereto, notwithstanding the fact that after the Collateral
Agent shall have entered into such an agreement all Events of Default shall have
been remedied and the Obligations paid in full. As an alternative to exercising
the power of sale herein conferred upon it, the Collateral Agent may proceed by
a suit or suits at law or in equity to foreclose this Agreement and to sell the
Collateral or any portion thereof pursuant to a judgment or decree of a court or
courts having competent jurisdiction or pursuant to a proceeding by a
court-appointed receiver. Any sale pursuant to the provisions of this Section
5.01 shall be deemed to conform to the commercially reasonable standards as
provided in Section 9-610(b) of the New York UCC or its equivalent in other
jurisdictions.
SECTION 5.02. Application of Proceeds. The Collateral Agent shall apply the
proceeds of any collection, sale, foreclosure or other realization upon any
Collateral, including any Collateral consisting of cash, as follows:
FIRST, to the payment of all costs and expenses incurred by the
Administrative Agent and/or the Collateral Agent (in their capacity as such
hereunder or under any other Loan Document) in connection with such collection,
sale, foreclosure or realization or otherwise in connection with this Agreement,
any other Loan Document or any of the Obligations, including all court costs and
the fees and expenses of its agents and legal counsel, the repayment of all
advances made by the Administrative Agent and/or the Collateral Agent hereunder
or under any other Loan Document on behalf of any Grantor and any other costs or
expenses incurred in connection with the exercise of any right or remedy
hereunder or under any other Loan Document;
SECOND, to the payment in full of the Obligations (the amounts so applied to be
distributed among the Secured Parties pro rata in accordance with the amounts of
the Obligations owed to them on the date of any such distribution); and
THIRD, to the Grantors, their successors or assigns, or as a court of competent
jurisdiction may otherwise direct.
The Collateral Agent shall have absolute discretion as to the time of
application of any such proceeds, moneys or balances in accordance with this
Agreement. Upon any sale of Collateral by the Collateral Agent (including
pursuant to a power of sale granted by statute or under a judicial proceeding),
the receipt of the purchase money by the Collateral Agent or the officer making
the sale shall be a sufficient discharge to the purchaser or purchasers of the
Collateral so sold and such purchaser or purchasers shall not be obligated to
see to the application of any part of the purchase money paid over to the
Collateral Agent or such officer or be answerable in any way for the
misapplication thereof.
SECTION 5.03. Grant of License To Use Intellectual Property. For the
purpose of enabling the Collateral Agent to exercise rights and remedies under
this Article at such time as the Collateral Agent shall be lawfully entitled to
exercise such rights and remedies, each Grantor hereby grants to the Collateral
Agent an irrevocable (during the term of this Agreement), nonexclusive license
(exercisable without payment of royalty or other compensation to the Grantors)
to use, license or sublicense any of the Article 9 Collateral consisting of
Intellectual Property now owned or hereafter acquired by such Grantor, and
wherever the same may be located, and including in such license (to the extent
not prohibited by an enforceable agreement with a party other than Holdings, the
Borrower or any Subsidiary that is permitted by Section 6.06(b) of the
Credit Agreement) access to all media in which any of the licensed items may be
recorded or stored and to all computer software and programs used for the
compilation or printout thereof. The use of such license by the Collateral
Agent shall be exercised, at the option of the Collateral Agent, only upon the
occurrence and during the continuation of an Event of Default; provided,
however, that any license, sublicense or other transaction entered into by the
Collateral Agent in accordance herewith shall be binding upon the Grantors
notwithstanding any subsequent cure of an Event of Default.
SECTION 5.04. Securities Act, Etc. In view of the position of the Grantors
in relation to the Pledged Collateral, or because of other current or future
circumstances, a question may arise under the Securities Act of 1933, as now or
hereafter in effect, or any similar statute hereafter enacted analogous in
purpose or effect (such Act and any such similar statute as from time to time in
effect being called the "Federal Securities Laws") with respect to any
disposition of the Pledged Collateral permitted hereunder. Each Grantor
understands that compliance with the Federal Securities Laws might very strictly
limit the course of conduct of the Collateral Agent if the Collateral Agent were
to attempt to dispose of all or any part of the Pledged Collateral, and might
also limit the extent to which or the manner in which any subsequent transferee
of any Pledged Collateral could dispose of the same. Similarly, there may be
other legal restrictions or limitations affecting the Collateral Agent in any
attempt to dispose of all or part of the Pledged Collateral under applicable
"blue sky"or other state securities laws or similar laws analogous in purpose or
effect. Each Grantor recognizes that in light of such restrictions and
limitations the Collateral Agent may, with respect to any sale of the Pledged
Collateral, limit the purchasers to those who will agree, among other things, to
acquire such Pledged Collateral for their own account, for investment, and not
with a view to the distribution or resale thereof. Each Grantor acknowledges
and agrees that in light of such restrictions and limitations, the Collateral
Agent, in its sole and absolute discretion (a) may proceed to make such a sale
whether or not a registration statement for the purpose of registering such
Pledged Collateral or part thereof shall have been filed under the Federal
Securities Laws and (b) may approach and negotiate with a limited number of
potential purchasers (including a single potential purchaser) to effect such
sale. Each Grantor acknowledges and agrees that any such sale might result in
prices and other terms less favorable to the seller than if such sale were a
public sale without such restrictions. In the event of any such sale, the
Collateral Agent shall incur no responsibility or liability for selling all or
any part of the Pledged Collateral at a price that the Collateral Agent, in its
sole and absolute discretion, may in good xxxxx xxxx reasonable under the
circumstances, notwithstanding the possibility that a substantially higher price
might have been realized if the sale were deferred until after registration as
aforesaid or if more than a limited number of purchasers (or a single purchaser)
were approached. The provisions of this Section 5.04 will apply notwithstanding
the existence of a public or private market upon which the quotations or sales
prices may exceed substantially the price at which the Collateral Agent sells.
ARTICLE VI
Indemnity, Subrogation and Subordination
SECTION 6.01. Indemnity and Subrogation. In addition to all such rights of
indemnity and subrogation as the Guarantors may have under applicable law (but
subject to Section 6.03), the Borrower agrees that (a) in the event a payment
shall be made by any Guarantor under this Agreement, the Borrower shall
indemnify such Guarantor for the full amount of such payment and such Guarantor
shall be subrogated to the rights of the person to whom such payment shall have
been made to the extent of such payment and (b) in the event any assets of any
Guarantor shall be sold pursuant to this Agreement or any other Security
Document to satisfy in whole or in part a claim of any Secured Party, the
Borrower shall indemnify such Guarantor in an amount equal to the greater of the
book value or the fair market value of the assets so sold.
SECTION 6.02. Contribution and Subrogation. Each Guarantor (a "Contributing
Guarantor") agrees (subject to Section 6.03) that, in the event a payment shall
be made by any other Guarantor hereunder in respect of any Obligation or assets
of any other Guarantor shall be sold pursuant to any Security Document to
satisfy any Obligation owed to any Secured Party and such other Guarantor (the
"Claiming Guarantor") shall not have been fully indemnified by the Borrower as
provided in Section 6.01, the Contributing Guarantor shall indemnify the
Claiming Guarantor in an amount equal to the lesser of (i) the amount of such
payment or (ii) the greater of the book value or the fair market value of such
assets, as the case may be, in each case multiplied by a fraction of which the
numerator shall be the net worth of the Contributing Guarantor on the date
hereof and the denominator shall be the aggregate net worth of all the
Guarantors on the date hereof (or, in the case of any Guarantor becoming a party
hereto pursuant to Section 7.16, the date of the Supplement hereto executed and
delivered by such Guarantor). Any Contributing Guarantor making any payment to
a Claiming Guarantor pursuant to this Section 6.02 shall be subrogated to the
rights of such Claiming Guarantor under Section 6.01 to the extent of such
payment.
SECTION 6.03. Subordination. (a) Notwithstanding any provision of this
Agreement to the contrary, all rights of the Guarantors under Sections 6.01 and
6.02 and all other rights of indemnity, contribution or subrogation under
applicable law or otherwise shall be fully subordinated to the indefeasible
payment in full in cash of the Obligations. No failure on the part of the
Borrower or any Guarantor to make the payments required by Sections 6.01 and
6.02 (or any other payments required under applicable law or otherwise) shall in
any respect limit the obligations and liabilities of any Guarantor with respect
to its obligations hereunder, and each Guarantor shall remain liable for the
full amount of the obligations of such Guarantor hereunder.
(b) The Borrower and each Guarantor hereby agree that all Indebtedness and
other monetary obligations owed by it to Holdings, the Borrower or any
Subsidiary shall be fully subordinated to the indefeasible payment in full in
cash of the Obligations.
ARTICLE VII
Miscellaneous
SECTION 7.01. Notices. All communications and notices hereunder shall
(except as otherwise expressly permitted herein) be in writing and given as
provided in Section 9.01 of the Credit Agreement. All communications and
notices hereunder to any Subsidiary Guarantor shall be given to it in care of
the Borrower as provided in Section 9.01 of the Credit Agreement.
SECTION 7.02. Security Interest Absolute. All rights of the Collateral
Agent hereunder, the Security Interest, the grant of a security interest in the
Pledged Collateral and all obligations of each Grantor hereunder shall be
absolute and unconditional irrespective of (a) any lack of validity or
enforceability of the Credit Agreement, any other Loan Document, any agreement
with respect to any of the Obligations or any other agreement or instrument
relating to any of the foregoing, (b) any change in the time, manner or place of
payment of, or in any other term of, all or any of the Obligations, or any
other amendment or waiver of or any consent to any departure from the Credit
Agreement, any other Loan Document or any other agreement or instrument, (c) any
exchange, release or non-perfection of any Lien on other collateral, or any
release or amendment or waiver of or consent under or departure from any
guarantee, securing or guaranteeing all or any of the Obligations, or (d) any
other circumstance that might otherwise constitute a defense available to, or a
discharge of, any Grantor in respect of the Obligations or this Agreement.
SECTION 7.03. Survival of Agreement. All covenants, agreements,
representations and warranties made by the Grantors in this Agreement and in the
certificates or other instruments prepared or delivered in connection with or
pursuant to this Agreement shall be considered to have been relied upon by the
other parties hereto and shall survive the execution and delivery of this
Agreement, regardless of any investigation made by any such other party or on
its behalf and notwithstanding that the Collateral Agent, any Issuing Bank or
any Lender may have had notice or knowledge of any Default or incorrect
representation or warranty at the time any credit is extended under the Credit
Agreement, and shall continue in full force and effect as long as the principal
of or any accrued interest on any Loan or any Fee or any other amount payable
under any Loan Document is outstanding and unpaid or any Letter of Credit is
outstanding (unless such Letter of Credit has been cash collateralized on terms
satisfactory to the Administrative Agent or is supported by a Backstop Letter of
Credit) and so long as the Commitments have not expired or terminated.
SECTION 7.04. Binding Effect; Several Agreement. This Agreement shall
become effective as to any Loan Party when a counterpart hereof executed on
behalf of such Loan Party shall have been delivered to the Collateral Agent and
a counterpart hereof shall have been executed on behalf of the Collateral Agent,
and thereafter shall be binding upon such Loan Party and the Collateral Agent
and their respective permitted successors and assigns, and shall inure to the
benefit of such Loan Party, the Collateral Agent and the other Secured Parties
and their respective successors and assigns, except that no Loan Party shall
have the right to assign or transfer its rights or obligations hereunder or any
interest herein or in the Collateral (and any such assignment or transfer shall
be void) except as expressly contemplated by this Agreement or the Credit
Agreement. This Agreement shall be construed as a separate agreement with
respect to each Loan Party and may be amended, modified, supplemented, waived or
released with respect to any Loan Party without the approval of any other Loan
Party and without affecting the obligations of any other Loan Party hereunder.
SECTION 7.05. Successors and Assigns. Whenever in this Agreement any of the
parties hereto is referred to, such reference shall be deemed to include
the permitted successors and assigns of such party; and all covenants, promises
and agreements by or on behalf of any Grantor or Guarantor or the Collateral
Agent that are contained in this Agreement shall bind and inure to the benefit
of their respective successors and assigns.
SECTION 7.06. Collateral Agent's Fees and Expenses; Indemnification. (a)
The parties hereto agree that the Collateral Agent shall be entitled to
reimbursement of its reasonable expenses incurred hereunder as provided in
Section 9.05 of the Credit Agreement.
(b) Without limitation of its indemnification obligations under the other
Loan Documents, each Guarantor and each Grantor jointly and severally agrees to
indemnify the Collateral Agent and the other Indemnitees against, and hold each
Indemnitee harmless from, any and all losses, claims, damages, liabilities and
related out-of-pocket expenses, including the reasonable fees, charges and
disbursements of any counsel for any Indemnitee, incurred by or asserted against
any Indemnitee arising out of, in any way connected with, or as a result
of, the execution, delivery or performance of this Agreement or any agreement or
instrument contemplated hereby or any claim, litigation, investigation or
proceeding relating to any of the foregoing or to the Collateral, whether or not
any Indemnitee is a party thereto; provided, however, that such indemnity shall
not, as to any Indemnitee, be available to the extent that such losses, claims,
damages, liabilities or related expenses are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the gross
negligence or wilful misconduct of such Indemnitee.
(c) Any such amounts payable as provided hereunder shall be additional
Obligations secured hereby and by the other Security Documents. The provisions
of this Section 7.06 shall remain operative and in full force and effect
regardless of the termination of this Agreement or any other Loan Document, the
consummation of the transactions contemplated hereby, the repayment of any of
the Obligations, the invalidity or unenforceability of any term or provision of
this Agreement or any other Loan Document, or any investigation made by or on
behalf of the Collateral Agent or any other Secured Party. All amounts due
under this Section 7.06 shall be payable on written demand therefor and shall
bear interest at the rate specified in Section 2.06(a) of the Credit Agreement.
SECTION 7.07. Collateral Agent Appointed Attorney-in-Fact. Each Grantor
hereby appoints the Collateral Agent as the attorney-in-fact of such Grantor for
the purpose of carrying out the provisions of this Agreement and taking any
action and executing any instrument that the Collateral Agent may deem necessary
or advisable to accomplish the purposes hereof, which appointment is irrevocable
and coupled with an interest. Without limiting the generality of the foregoing,
the Collateral Agent shall have the right, upon the occurrence and during the
continuance of an Event of Default, with full power of substitution either in
the Collateral Agent's name or in the name of such Grantor (a) to receive,
endorse, assign and/or deliver any and all notes, acceptances, checks, drafts,
money orders or other evidences of payment relating to the Collateral or any
part thereof, (b) to demand, collect, receive payment of, give receipt for and
give discharges and releases of all or any of the Collateral, (c) to sign the
name of any Grantor on any invoice or xxxx of lading relating to any of the
Collateral, (d) to send verifications of Accounts Receivable to any Account
Debtor, (e) to commence and prosecute any and all suits, actions or proceedings
at law or in equity in any court of competent jurisdiction to collect or
otherwise realize on all or any of the Collateral or to enforce any rights in
respect of any Collateral, (f) to settle, compromise, compound, adjust or defend
any actions, suits or proceedings relating to all or any of the Collateral, (g)
to notify, or to require any Grantor to notify, Account Debtors to make payment
directly to the Collateral Agent, and (h) to use, sell, assign, transfer,
pledge, make any agreement with respect to or otherwise deal with all or any of
the Collateral, and to do all other acts and things necessary to carry out the
purposes of this Agreement, as fully and completely as though the Collateral
Agent were the absolute owner of the Collateral for all purposes; provided,
however, that nothing herein contained shall be construed as requiring or
obligating the Collateral Agent to make any commitment or to make any inquiry as
to the nature or sufficiency of any payment received by the Collateral Agent, or
to present or file any claim or notice, or to take any action with respect to
the Collateral or any part thereof or the moneys due or to become due in respect
thereof or any property covered thereby. The Collateral Agent and the other
Secured Parties shall be accountable only for amounts actually received as a
result of the exercise of the powers granted to them herein, and neither they
nor their officers, directors, employees or agents shall be responsible to any
Grantor for any act or failure to act hereunder, except for their own gross
negligence or wilful misconduct.
SECTION 7.08. Applicable Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 7.09. Waivers; Amendment. (a) No failure or delay by the
Collateral Agent, the Administrative Agent, any Issuing Bank or any Lender in
exercising any right or power hereunder or under any other Loan Document shall
operate as a waiver hereof or thereof, nor shall any single or partial exercise
of any such right or power, or any abandonment or discontinuance of steps to
enforce such a right or power, preclude any other or further exercise thereof or
the exercise of any other right or power. The rights and remedies of the
Collateral Agent, the Administrative Agent, the Issuing Bank and the Lenders
hereunder and under the other Loan Documents are cumulative and are not
exclusive of any rights or remedies that they would otherwise have. No waiver of
any provision of any Loan Document or consent to any departure by any Loan Party
therefrom shall in any event be effective unless the same shall be permitted by
paragraph (b) of this Section, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given.
Without limiting the generality of the foregoing, the making of a Loan or
issuance of a Letter of Credit shall not be construed as a waiver of any
Default, regardless of whether the Collateral Agent, any Lender or any Issuing
Bank may have had notice or knowledge of such Default at the time. No notice or
demand on any Loan Party in any case shall entitle any Loan Party to any other
or further notice or demand in similar or other circumstances.
(b) Neither this Agreement nor any provision hereof may be waived, amended
or modified except pursuant to an agreement or agreements in writing entered
into by the Collateral Agent and the Loan Party or Loan Parties with respect to
which such waiver, amendment or modification is to apply, subject to any consent
required in accordance with Section 9.08 of the Credit Agreement.
SECTION 7.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT
OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER LOAN
DOCUMENTS. EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN
INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS
APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN
THIS SECTION 7.10.
SECTION 7.11. Severability. In the event any one or more of the provisions
contained in this Agreement or in any other Loan Document should be held
invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein and therein shall
not in any way be affected or impaired thereby (it being understood that the
invalidity of a particular provision in a particular jurisdiction shall not in
and of itself affect the validity of such provision in any other jurisdiction).
The parties shall endeavor in good-faith negotiations to replace the
invalid, illegal or unenforceable provisions with valid provisions the economic
effect of which comes as close as possible to that of the invalid, illegal or
unenforceable provisions.
SECTION 7.12. Counterparts. This Agreement may be executed in counterparts
(and by different parties hereto on different counterparts), each of which shall
constitute an original but all of which when taken together shall constitute a
single contract, and shall become effective as provided in Section 7.04.
Delivery of an executed signature page to this Agreement by facsimile
transmission shall be as effective as delivery of a manually signed counterpart
of this Agreement.
SECTION 7.13. Headings. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
Agreement and are not to affect the construction of, or to be taken into
consideration in interpreting, this Agreement.
SECTION 7.14. Jurisdiction; Consent to Service of Process. (a) Each of the
Loan Parties hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York State court or
Federal court of the United States of America, sitting in New York City, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement or any other Loan Document, or for recognition or
enforcement of any judgment, and each of the Loan Parties hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent
permitted by law, in such Federal court. Each of the Loan Parties agrees that a
final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement or any other Loan Document shall
affect any right that the Collateral Agent, the Administrative Agent, any
Issuing Bank or any Lender may otherwise have to bring any action or proceeding
relating to this Agreement or any other Loan Document against any Loan Party, or
its properties, in the courts of any jurisdiction.
(b) Each of the Loan Parties hereby irrevocably and unconditionally waives,
to the fullest extent it may legally and effectively do so, any objection which
it may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement or any other Loan
Document in any court referred to in paragraph (a) of this Section. Each of the
Loan Parties hereby irrevocably waives, to the fullest extent permitted by
law, the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
(c) Each of the Loan Parties hereby irrevocably consents to service of
process in the manner provided for notices in Section 7.01. Nothing in this
Agreement or any other Loan Document will affect the right of the Collateral
Agent to serve process in any other manner permitted by law.
SECTION 7.15. Termination or Release. (a) This Agreement, the Guarantees,
the Security Interest, the pledge of the Pledged Collateral and all other
security interests granted hereby shall terminate when all the Loan Document
Obligations (other than wholly contingent indemnification obligations) then due
and owing have been paid in full and the Lenders have no further commitment to
lend under the Credit Agreement, no Letters of Credit are outstanding (unless
such Letter of Credit has been cash collateralized on terms satisfactory to the
Administrative Agent or is supported by a Backstop Letter of Credit) and the
Issuing Bank has no further obligations to issue Letters of Credit under the
Credit Agreement.
(b) A Subsidiary Guarantor shall automatically be released from its
obligations hereunder and the Security Interest in the Collateral of such
Subsidiary Guarantor shall be automatically released upon the consummation of
any transaction permitted by the Credit Agreement as a result of which such
Subsidiary Guarantor ceases to be a Subsidiary.
(c) Upon any sale or other transfer by any Grantor of any Collateral that is
permitted under the Credit Agreement to any person that is not the Borrower
or a Guarantor, or, upon the effectiveness of any written consent to the release
of the security interest granted hereby in any Collateral pursuant to Section
9.08 of the Credit Agreement, the security interest in such Collateral shall be
automatically released.
(d) In connection with any termination or release pursuant to paragraph (a),
(b) or (c) above, the Collateral Agent shall execute and deliver to any Grantor,
at such Grantor's expense, all documents that such Grantor shall reasonably
request to evidence such termination or release. Any execution and delivery of
documents pursuant to this Section 7.15 shall be without recourse to or
representation or warranty by the Collateral Agent or any Secured Party.
Without limiting the provisions of Section 7.06, the Borrower shall reimburse
the Collateral Agent upon demand for all costs and out-of-pocket expenses,
including the fees, charges and disbursements of counsel, incurred by it in
connection with any action contemplated by this Section.
SECTION 7.16. Additional Subsidiaries. Pursuant to Section 5.09 of the
Credit Agreement, each subsequently acquired or organized Domestic Subsidiary is
required to enter into this Agreement as a Subsidiary Guarantor upon
becoming such a Subsidiary. Upon execution and delivery by the Collateral Agent
and a Domestic Subsidiary of an instrument in the form of Exhibit A hereto, such
Domestic Subsidiary shall become a Subsidiary Guarantor hereunder with the same
force and effect as if originally named as a Subsidiary Guarantor herein. The
execution and delivery of any such instrument shall not require the consent of
any other Loan Party hereunder. The rights and obligations of each Loan Party
hereunder shall remain in full force and effect notwithstanding the addition of
any new Loan Party as a party to this Agreement.
SECTION 7.17. Right of Setoff. If an Event of Default shall have occurred
and be continuing, each Lender and each of its Affiliates is hereby authorized
at any time and from time to time, to the fullest extent permitted by law, to
set off and apply any and all deposits (general or special, time or demand,
provisional or final) at any time held and other obligations at any time owing
by such Lender or Affiliate to or for the credit or the account of any Grantor
against any and all of the obligations of such Grantor now or hereafter existing
under this Agreement held by such Lender, irrespective of whether or not
such Lender shall have made any demand under this Agreement and although such
obligations may be unmatured. The rights of each Lender under this Section are
in addition to other rights and remedies (including other rights of setoff)
which such Lender may have.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of
the day and year first above written.
CCC INFORMATION SERVICES INC.
================================
by
Name:
-----
Title:
CCC INFORMATION SERVICES GROUP INC.
by
Name:
-----
Title:
EACH OF THE SUBSIDIARIES
LISTED ON SCHEDULE I HERETO
by
Name:
-----
Title:
CREDIT SUISSE FIRST BOSTON, acting through its Cayman Islands Branch, as
Collateral Agent,
by
Name:
-----
Title:
by ______________________________
Name:
Title:
Schedule I to
the Guarantee and
Collateral Agreement
[[NYCORP:2417984v4:4332W:10/19/04--04:31 p]]
SUBSIDIARY GUARANTORS
Schedule II to
the Guarantee and
Collateral Agreement
CAPITAL STOCK
Number and
Number of Registered Class of Percentage
Issuer Certificate Owner Equity Interest of Equity Interests
------ ----------- ----- --------------- -------------------
DEBT SECURITIES
Principal
Issuer In Favor of Amount Date of Note Maturity Date
------ ----------- ------ ------------ -------------
Schedule III to
the Guarantee and
Collateral Agreement
Schedule III to
the Guarantee and
Collateral Agreement
COPYRIGHTS OWNED BY [NAME OF GRANTOR]
[Make a separate page of Schedule III for each Grantor and state if no
copyrights are owned. List in numerical order by Registration No.]
U.S. Copyright Registrations
Title Reg. No. Author
----- -------- ------
Pending U.S. Copyright Applications for Registration
Title Author Class Date Filed
----- ------ ----- ----------
Non-U.S. Copyright Registrations
[List in alphabetical order by country/numerical order by Registration No.
within each country]
Country Title Reg. No. Author
------- ----- -------- ------
Non-U.S. Pending Copyright Applications for Registration
[List in alphabetical order by country.]
Country Title Author Class Date Filed
------- ----- ------ ----- ----------
LICENSES
[Make a separate page of Schedule III for each Grantor, and state if any Grantor
is not a party to a license/sublicense.]
I. Licenses/Sublicenses of [Name of Grantor] as Licensor on Date Hereof
A. Copyrights
[List U.S. copyrights in numerical order by Registration No. List non-U.S.
copyrights by country in alphabetical order with Registration Nos. within each
country in numerical order.]
U.S. Copyrights
Title of
Licensee Name Date of License/ U.S.
and Address Sublicense Copyright Author Reg. No.
----------- ---------- --------- ------ --------
Non-U.S. Copyrights
Date of Title of
Licensee Name License/ Non-U.S.
Country and Address Sublicensee Copyrights Author Reg. No.
------- ----------- ----------- ---------- ------ --------
B. Patents
[List U.S. patent nos. and U.S. patent application nos. in numerical order.
List non-U.S. patent nos. and non-U.S. application in alphabetical order by
country, with
numbers within each country in numerical order.]
U.S. Patents
Licensee Name Date of License/
and Address Sublicense Issue Date Patent No.
----------- ---------- ---------- ----------
U.S. Patent Applications
Licensee Name Date of License/
and address Sublicense Date Filed Application No.
----------- ---------- ---------- ---------------
Non-U.S. Patents
Licensee Name Date of License/ Issue Non-U.S.
Country and Address Sublicense Date Patent No.
------- ----------- ---------- ---- ----------
Non-U.S. Patent Applications
Licensee Name Date of License/ Date Application
Country and Address Sublicense Filed No.
------- ----------- ---------- ----- ---
C. Trademarks
[List U.S. trademark nos. and U.S. trademark application nos. in numerical
order. List non-U.S. trademark nos. and non-U.S. application nos. with
trademark nos. within each country in numerical order.]
U.S. Trademarks
Licensee Name Date of License/
and Address Sublicense U.S. Xxxx Reg. Date Reg. No.
----------- ---------- --------- --------- --------
U.S. Trademark Applications
Licensee Name Date of License/ Application
and Address Sublicense U.S. Xxxx Date Filed No.
----------- ---------- --------- ---------- ---
Non-U.S. Trademarks
Licensee Name Date of License/ Non-U.S.
Country and Address Sublicense Xxxx Reg. Date Reg. No.
------- ----------- ---------- ---- --------- --------
Non-U.S. Trademark Applications
Licensee Name Date of License/ Non-U.S. Date Application
Country and Address Sublicense Xxxx Filed No.
------- ----------- ---------- ---- ----- ---
D. Others
Licensee Name Date of License/ Subject
and Address Sublicense Matter
----------- ---------- ------
II. Licenses/Sublicenses of [Name of Grantor] as Licensee on Date Hereof
A. Copyrights
[List U.S. copyrights in numerical order by Registration No. List non-U.S.
copyrights by country in alphabetical order, with Registration Nos. within each
country in numerical order.]
U.S. Copyrights
Licensor Name and Date of License/ Title of
Address Sublicense U.S. Copyright Author Reg. No.
------- ---------- -------------- ------ --------
Non-U.S. Copyrights
Date of Title of
Licensor Name License/ Non-U.S.
Country and Address Sublicensee Copyrights Author Reg. No.
------- ----------- ----------- ---------- ------ --------
B. Patents
[List U.S. patent nos. and U.S. patent application nos. in numerical order.
List non-U.S. patent nos. and non-U.S. application nos. in alphabetical order by
country with patent nos. within each country in numerical order.]
U.S. Patents
Date of
Licensor Name License/
and Address Sublicense Issue Date Patent No.
----------- ---------- ---------- ----------
U.S. Patent Applications
Licensor Name Date of License/
and Address Sublicense Date Filed Application No.
----------- ---------- ---------- ---------------
Non-U.S. Patents
Licensor Name Date of License/ Issue Non-U.S.
Country and Address Sublicense Date Patent No.
------- ----------- ---------- ---- ----------
Non-U.S. Patent Applications
Licensor Name Date of License/ Date Application
Country and Address Sublicense Filed No.
------- ----------- ---------- ----- ---
C. Trademarks
[List U.S. trademark nos. and U.S. trademark application nos. in numerical
order. List non-U.S. trademark nos. and non-U.S. application nos. with
trademark nos. within each country in numerical order.]
U.S. Trademarks
Licensor Name Date of License/
and Address Sublicense U.S. Xxxx Reg. Date Reg. No.
----------- ---------- --------- --------- --------
U.S. Trademark Applications
Licensor Name Date of License/ Date Application
and Address Sublicense U.S. Xxxx Filed No.
----------- ---------- --------- ----- ---
Non-U.S. Trademarks
Licensor Name Date of License/ Non-U.S.
Country and Address Sublicense Xxxx Reg. Date Reg. No.
------- ----------- ---------- ---- --------- --------
Non-U.S. Trademark Applications
Licensor Name Date of License/ Non-U.S. Date Application
Country and Address Sublicense Xxxx Filed No.
------- ----------- ---------- ---- ----- ---
D. Others
Date of License/
Licensor Name and Address Sublicense Subject Matter
------------------------- ---------- --------------
PATENTS OWNED BY [NAME OF GRANTOR]
[Make a separate page of Schedule III for each Grantor and state if no patents
are owned. List in numerical order by Patent No./Patent Application No.]
U.S. Patent Registrations
Patent Numbers Issue Date
-------------- ----------
U.S. Patent Applications
Patent Application No. Filing Date
---------------------- -----------
Non-U.S. Patent Registrations
[List in alphabetical order by country/numerical order by Patent No. within each
country]
Country Issue Date Patent No.
------- ---------- ----------
Non-U.S. Patent Registrations
[List in alphabetical order by country/numerical order by Application No. within
each country]
Country Filing Date Patent Application No.
------- ----------- ----------------------
TRADEMARKS/TRADE NAMES OWNED BY [NAME OF GRANTOR]
[Make a separate page of Schedule III for each Grantor and state if no
trademarks/trade names are owned. List in numerical order by trademark
registration/application no.]
U.S. Trademark Registrations
Xxxx Reg. Date Reg. No.
---- --------- --------
U.S. Trademark Applications
Xxxx Filing Date Application No.
---- ----------- ---------------
State Trademark Registrations
[List in alphabetical order by state/numerical order by trademark no. within
each state]
State Xxxx Filing Date Application No.
----- ---- ----------- ---------------
Non-U.S. Trademark Registrations
[List in alphabetical order by country/numerical order by trademark no. within
each country]
Country Xxxx Reg. Date Reg. No.
------- ---- --------- --------
Non-U.S. Trademark Applications
[List in alphabetical order by country/numerical order by application no.]
Country Xxxx Application Date Application No.
------- ---- ---------------- ---------------
Trade Names
Country(ies) Where Used Trade Names
----------------------- -----------
3
Exhibit A to the
Guarantee and
Collateral Agreement
SUPPLEMENT NO. __ dated as of , to the Guarantee and Collateral Agreement
dated as of August 20, 2004, among CCC INFORMATION SERVICES INC., a Delaware
corporation (the "Borrower"), CCC INFORMATION SERVICES GROUP INC., a Delaware
corporation ("Holdings"), each subsidiary of the Borrower listed on Schedule I
thereto (each such subsidiary individually a "Subsidiary Guarantor" and
collectively, the "Subsidiary Guarantors"; the Subsidiary Guarantors, Holdings
and the Borrower are referred to collectively herein as the "Grantors") and
CREDIT SUISSE FIRST BOSTON ("CSFB"), as Collateral Agent (in such capacity, the
"Collateral Agent") for the Secured Parties (as defined herein).
A. Reference is made to the Credit Agreement dated as of August 20, 2004
(as amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"), among the Borrower, Holdings, the lenders from time to time party
thereto (the "Lenders") and CSFB, as administrative agent (in such capacity, the
"Administrative Agent") and as Collateral Agent.
B. Capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned to such terms in the Credit Agreement or the
Guarantee and Collateral Agreement referred to therein, as applicable.
C. The Grantors have entered into the Guarantee and Collateral Agreement in
order to induce the Lenders to make Loans and the Issuing Bank to issue Letters
of Credit. Section 7.16 of the Guarantee and Collateral Agreement provides that
additional Domestic Subsidiaries of the Borrower may become Subsidiary
Guarantors and Grantors under the Guarantee and Collateral Agreement by
execution and delivery of an instrument in the form of this Supplement. The
undersigned Subsidiary (the "New Subsidiary") is executing this Supplement in
accordance with the requirements of the Credit Agreement to become a Subsidiary
Guarantor and Grantor under the Guarantee and Collateral Agreement in order to
induce the Lenders to make additional Loans and the Issuing Bank to issue
additional Letters of Credit and as consideration for Loans previously made and
Letters of Credit previously issued.
Accordingly, the Collateral Agent and the New Subsidiary agree as follows:
SECTION 1. In accordance with Section 7.16 of the Guarantee and Collateral
Agreement, the New Subsidiary by its signature below becomes a Grantor and
Guarantor under the Guarantee and Collateral Agreement with the same force and
effect as if originally named therein as a Grantor and Guarantor and the New
Subsidiary hereby (a) agrees to all the terms and provisions of the Guarantee
and Collateral Agreement applicable to it as a Grantor and Guarantor thereunder
and (b) represents and warrants that the representations and warranties made by
it as a Grantor and Guarantor thereunder are true and correct on and as of the
date hereof. In furtherance of the foregoing, the New Subsidiary, as security
for the payment and performance in full of the Obligations (as defined in the
Guarantee and Collateral Agreement), does hereby create and grant to the
Collateral Agent, its successors and assigns, for the benefit of the Secured
Parties, their successors and assigns, a security interest in and lien on all of
the New Subsidiary's right, title and interest in and to the Collateral (as
defined in the Guarantee and Collateral Agreement) of the New Subsidiary. Each
reference to a "Guarantor" or "Grantor" in the Guarantee and Collateral
Agreement shall be deemed to include the New Subsidiary. The Guarantee and
Collateral Agreement is hereby incorporated herein by reference.
SECTION 2. The New Subsidiary represents and warrants to the Collateral
Agent and the other Secured Parties that this Supplement has been duly
authorized, executed and delivered by it and constitutes its legal, valid and
binding obligation, enforceable against it in accordance with its terms, subject
to (i) the effects of bankruptcy, insolvency, moratorium, reorganization,
fraudulent conveyance or other similar laws affecting creditors' rights
generally, (ii) general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law) and (iii)
implied covenants of good faith and fair dealing.
SECTION 3. This Supplement may be executed in counterparts (and by different
parties hereto on different counterparts), each of which shall constitute an
original, but all of which when taken together shall constitute a single
contract. This Supplement shall become effective when the Collateral Agent shall
have received counterparts of this Supplement that, when taken together, bear
the signatures of the New Subsidiary and the Collateral Agent. Delivery of an
executed signature page to this Supplement by facsimile transmission shall be as
effective as delivery of a manually signed counterpart of this Supplement.
SECTION 4. The New Subsidiary hereby represents and warrants that (a) if this
Agreement is executed and delivered prior to January 1, 2007, set forth on
Schedule I attached hereto is a true and correct schedule of the location of any
and all Collateral of the New Subsidiary, (b) set forth on Schedule I hereto is
a true and correct schedule of all the Pledged Securities and Intellectual
Property of the New Subsidiary and (c) set forth under its signature hereto, is
the true and correct legal name of the New Subsidiary, its jurisdiction of
formation and the location of its chief executive office.
SECTION 5. Except as expressly supplemented hereby, the Guarantee and
Collateral Agreement shall remain in full force and effect.
SECTION 6. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 7. In case any one or more of the provisions contained in this
Supplement should be held invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein and in the Guarantee and Collateral Agreement shall not in any way be
affected or impaired thereby (it being understood that the invalidity of a
particular provision in a particular jurisdiction shall not in and of itself
affect the validity of such provision in any other jurisdiction). The parties
hereto shall endeavor in good-faith negotiations to replace the invalid, illegal
or unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
SECTION 8. All communications and notices hereunder shall be in writing
and given as provided in Section 7.01 of the Guarantee and Collateral Agreement.
SECTION 9. The New Subsidiary agrees to reimburse the Collateral Agent for its
reasonable out-of-pocket expenses in connection with this Supplement, including
the reasonable fees, other charges and disbursements of counsel for the
Collateral Agent.
IN WITNESS WHEREOF, the New Subsidiary and the Collateral Agent have duly
executed this Supplement to the Guarantee and Collateral Agreement as of the day
and year first above written.
[NAME OF NEW SUBSIDIARY]
by
Name:
-----
Title:
Address:
Legal Name:
Jurisdiction of Formation:
Location of Chief Executive office:
CREDIT SUISSE FIRST BOSTON, acting through its Cayman Islands Branch,
as Collateral Agent
by ______________________________
Name:
Title:
by ______________________________
Name:
Title:
33
Schedule I
to the Supplement No. __ to the
Guarantee and
Collateral Agreement
LOCATION OF COLLATERAL
Description Location
----------- --------
CAPITAL STOCK
Number and
Number of Registered Class of Percentage
Issuer Certificate Owner Equity Interests of Equity Interests
------ ----------- ----- ---------------- -------------------
DEBT SECURITIES
Principal
Issuer In Favor of Amount Date of Note Maturity Date
------ ----------- ------ ------------ -------------
INTELLECTUAL PROPERTY
