SECURITY AGREEMENT
EXHIBIT
10.2
THIS
SECURITY AGREEMENT (this “Security Agreement”),
dated as of September 30, 2009, is by and among each party identified as a
“Grantor” on the signature pages hereto and such other parties as may become
Grantors hereunder after the date hereof (individually a “Grantor”, and
collectively the “Grantors”) and BANK
OF AMERICA, N.A., in its capacity as Administrative Agent.
W I T N E
S S E T H
WHEREAS,
a revolving credit and term loan facility has been established in favor of Huron
Consulting Group Inc., a Delaware corporation (the “Company”), pursuant
to the terms of that certain Credit Agreement, dated as of June 7, 2006 (as
amended, modified, increased, extended, renewed or replaced, the “Credit Agreement”)
among the Company, the Lenders from time to time party thereto and Bank of
America, N.A., as Administrative Agent; and
WHEREAS,
this Security Agreement is required by the terms of that Eighth Amendment to
Credit Agreement dated as of the date hereof (the “Eighth Amendment”) by
and among the Company, the Guarantors, the Lenders party thereto and Bank of
America, N.A., as Administrative Agent, Swing Line Lender and Issuing
Lender;
NOW,
THEREFORE, in consideration of these premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. Definitions and Interpretive
Provisions.
(a) Capitalized
terms used and not otherwise defined herein shall have the meanings provided in
the Credit Agreement. In addition, the following terms, which are
defined in the UCC as in effect in the State of Illinois on the date hereof, are
used as defined therein: Accession, Account, As-Extracted Collateral,
Chattel Paper, Commercial Tort Claim, Consumer Goods, Deposit Account, Document,
Equipment, Farm Products, Fixtures, General Intangibles, Goods, Instrument,
Inventory, Investment Property, Letter-of-Credit Right, Manufactured Homes,
Proceeds, Software, Standing Timber, Supporting Obligation and Tangible Chattel
Paper.
(b) As
used herein, the following terms shall have the meanings set forth
below:
“Collateral” has the
meaning provided in Section 2
hereof.
“Company” has the
meaning provided in the recitals hereof, together with its permitted successors
and assigns.
“Credit Agreement” has
the meaning provided in the recitals hereof.
“Debtor Relief Laws”
means the Bankruptcy Code of the United States, and all other liquidation,
conservatorship, bankruptcy, assignment for the benefit of creditors,
moratorium, rearrangement, receivership, insolvency, reorganization, or similar
debtor relief Laws of the United States or other applicable jurisdictions from
time to time in effect and affecting the rights of creditors
generally.
“Eighth Amendment” has
the meaning provided in the recitals hereof.
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“Excluded Property”
means (a) any personal Property (including motor vehicles) in respect of which
perfection of a Lien is not accomplished by the filing of a UCC financing
statement under Article 9 of the UCC, (b) any leasehold interests, (c) any
Property that is subject to a Lien existing on the Closing Date and listed on
Schedule 11.2
to the Credit Agreement or a Lien securing Capital Leases obligations or
purchase money obligations permitted under Section 11.2(d) of
the Credit Agreement, in either case, pursuant to documents that prohibit (or
give rise to a right of termination or other remedies upon) the grant of any
other Liens in such property, provided in any such case the prohibition is not
rendered ineffective by the UCC (including the provisions of Section 9-407 and
9-408) or other applicable law, (d) any permit, lease, license or other contract
pursuant to documents that prohibit (or give rise to a right of termination or
other remedies upon) the grant of any other Liens therein, provided in any such
case the prohibition is not rendered ineffective by the UCC (including the
provisions of Section 9-407 and 9-408) or other applicable law, and (e) any
Property or assets owned or held by any member of the Company and its
Subsidiaries for or relating to any qualified or non-qualified deferred
compensation plan.
“Grantor” and “Grantors” has the
meaning provided in the introductory paragraph hereof.
“Indemnified Party”
has the meaning provided in Section 7(b)
hereof.
“Property” means an
interest of any kind in any property or asset, whether real, personal or mixed,
and whether tangible or intangible.
“Secured Obligations”
means, without duplication, (a) all Obligations and (b) all reasonable costs and
expenses incurred in connection with enforcement and collection of the Secured
Obligations, including reasonable attorneys’ fees and
disbursements.
“Security Agreement”
has the meaning provided in the introductory paragraph hereof, as the same may
be amended, supplemented and modified from time to time.
“UCC” means the
Uniform Commercial Code.
(c) Each
of the terms and provisions of Section 1.2 of the Credit Agreement (as the same
may be amended or modified as provided therein) are incorporated herein by
reference to the same extent and with the same effect as if fully set forth
herein.
2. Grant of Security Interest
in the Collateral. To secure the prompt payment and
performance in full when due, whether by lapse of time, acceleration, mandatory
prepayment or otherwise, of the Secured Obligations, each Grantor hereby grants
to the Administrative Agent, for the benefit of the Administrative Agent and the
other holders of the Secured Obligations, a continuing security interest in, and
a right to set off against, any and all right, title and interest of such
Grantor in and to all of its personal property, of whatever type or description,
whether now owned or existing or owned, acquired, or arising hereafter,
including the following (collectively, the “Collateral”):
(a) all
Accounts;
(b) all
cash and currency;
(c) all
Chattel Paper;
(d) those
Commercial Tort Claims identified on Schedule 2(d)
attached hereto;
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(e) Deposit
Accounts (other than payroll accounts);
(f) all
Documents;
(g) all
Equipment;
(h) all
General Intangibles (including contract rights, payment intangibles and
intellectual property);
(i) all
Instruments;
(j) all
Inventory;
(k) all
Investment Property;
(l) Letter
of Credit Rights;
(m) all
Software;
(n) all
Supporting Obligations;
(o) all
other personal property of such Grantor of whatever type or description;
and
(p) to
the extent not otherwise included, all Accessions and all Proceeds of any and
all of the foregoing.
Notwithstanding
anything to the contrary contained herein, the security interests granted under
this Security Agreement shall not extend to (i) any Excluded Property, (ii) the
Pledged Collateral, as defined in and which shall be governed by the terms of
the Pledge Agreement, and (iii) any Capital Securities in any Subsidiary (which,
if the Administrative Agent has any security interest therein, shall be provided
for and governed by the Pledge Agreement or other document). The
Grantors and the Administrative Agent, on behalf of itself and the other holders
of the Secured Obligations, hereby acknowledge and agree that the security
interest created hereby in the Collateral (A) constitutes continuing collateral
security for all of the Secured Obligations, whether now existing or hereafter
arising and (B) is not to be construed as an assignment of any intellectual
property.
3. Representations and
Warranties. Each Grantor hereby represents and warrants to the
Administrative Agent, for the benefit of the Administrative Agent and the other
holders of the Secured Obligations, that:
(a) Legal Name; Chief Executive
Office. As of the date hereof:
(i) The
Grantor’s exact legal name is (and for the prior five (5) years, or since its
formation if less than five (5) years, has been) and state of incorporation or
formation, principal place of business and chief executive office are (and for
the prior five (5) months, or since its formation if less than five (5) months,
have been) as set forth on Schedule 3(a)(i)
attached hereto.
(ii) Other
than as set forth on Schedule 3(a)(ii)
attached hereto, the Grantor has not been party to a merger, consolidation or
other change in structure or used any tradename in the prior five (5)
years.
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(b) Ownership. The
Grantor is the legal and beneficial owner of its Collateral and has the right to
pledge, sell, assign or transfer the same.
(c) Security
Interest/Priority. This Security Agreement creates a valid
security interest in favor of the Administrative Agent, for the benefit of
Administrative Agent and the other holders of the Secured Obligations, in the
Collateral of the Grantor and, when properly perfected by filing, shall
constitute a valid perfected security interest in such Collateral, to the extent
such security interest can be perfected by filing under the UCC, free and clear
of all Liens except for Permitted Liens.
(d) Types of
Collateral. None of the Collateral consists of, or is the
Accessions or the Proceeds of, As-Extracted Collateral, Consumer Goods, Farm
Products, Manufactured Homes, or Standing Timber.
(e) Inventory. No
Inventory of the Grantor is held by any Person other than the Grantor pursuant
to consignment, sale or return, sale on approval or similar
arrangement.
4. Covenants. Each
Grantor covenants that, so long as any of the Secured Obligations remains
outstanding and until all of the commitments relating thereto have been
terminated, such Grantor shall:
(a) Other
Liens. Defend the Collateral against the claims and demands of
all other parties claiming an interest therein, keep the Collateral free from
all Liens, except for Permitted Liens, and not sell, exchange, transfer, assign,
lease or otherwise dispose of the Collateral or any interest therein, except as
permitted under the Credit Agreement.
(b) Preservation of
Collateral. Keep the Collateral in good order, condition and
repair and not use the Collateral in violation of the provisions of this
Security Agreement and the other Loan Documents or any other agreement relating
to the Collateral, any policy insuring the Collateral or any applicable
law.
(c) Change in Structure,
Location or Type. Not, without providing ten (10) Business
Days’ prior written notice to the Administrative Agent and without filing such
financing statements and amendments to any previously filed financing statements
as the Administrative Agent may require, change its name or state of formation
or be party to a merger, consolidation or other change in structure or use any
tradename other than as set forth on Schedule 3(a)(ii)
attached hereto.
(d) Inspection. Upon
reasonable notice, and during reasonable hours, at all times allow the
Administrative Agent or its representatives to visit and inspect the Collateral
as set forth in Section 10.2 of the Credit Agreement.
(e) Perfection
of Security Interest. Execute and deliver to the
Administrative Agent such agreements, assignments or instruments (including
affidavits, notices, reaffirmations and amendments and restatements of existing
documents, as the Administrative Agent may reasonably request) and do all such
other things as the Administrative Agent may reasonably deem necessary,
appropriate or convenient to assure to the Administrative Agent the
effectiveness and priority of its security interests hereunder, including such
financing statements (including renewal statements), amendments and supplements
or such other instruments as the Administrative Agent may from time to time
reasonably request in order to (i) perfect and maintain the security interests
granted hereunder in accordance with the UCC, (ii) consummate the transactions
contemplated hereby and (iii) otherwise protect and assure the Administrative
Agent of its rights and interests hereunder. To that end, the Grantor
authorizes the Administrative Agent to file one or more financing statements
(with
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collateral
descriptions that may be broader and/or less specific than the description of
Collateral contained herein and which may describe the collateral as “all
assets” or “all personal property”) disclosing the Administrative Agent’s
security interest in any or all of the Collateral of the Grantor without the
Grantor’s signature thereon, and further the Grantor also hereby irrevocably
makes, constitutes and appoints the Administrative Agent, its nominee or any
other Person whom the Administrative Agent may designate, as the Grantor’s
attorney-in-fact with full power and for the limited purpose to sign in the name
of the Grantor any such financing statements (including renewal statements),
amendments and supplements, notices or any similar documents that in the
Administrative Agent’s reasonable discretion would be necessary, appropriate or
convenient in order to perfect and maintain perfection of the security interests
granted hereunder, such power, being coupled with an interest, being and
remaining irrevocable so long as the Secured Obligations remain unpaid and until
the commitments relating thereto shall have been terminated. The
Grantor hereby agrees that a carbon, photographic or other reproduction of this
Security Agreement or any such financing statement is sufficient for filing as a
financing statement by the Administrative Agent without notice thereof to the
Grantor wherever the Administrative Agent may in its sole discretion desire to
file the same. In the event for any reason the law of any
jurisdiction other than Illinois becomes or is applicable to the Collateral of
the Grantor or any part thereof, or to any of the Secured Obligations, the
Grantor agrees to execute and deliver all such instruments and to do all such
other things as the Administrative Agent in its sole discretion reasonably deems
necessary, appropriate or convenient to preserve, protect and enforce the
security interests of the Administrative Agent under the law of such other
jurisdiction (and, if the Grantor shall fail to do so promptly upon the request
of the Administrative Agent, then the Administrative Agent may execute any and
all such requested documents on behalf of the Grantor pursuant to the power of
attorney granted hereinabove). If any Collateral is in the possession
or control of the Grantor’s agents and the Administrative Agent so requests, the
Grantor agrees to notify such agents in writing of the Administrative Agent’s
security interest therein and, upon the Administrative Agent’s request, instruct
them to hold all such Collateral for the account of the Administrative Agent and
the other holders of the Secured Obligations and subject to the Administrative
Agent’s instructions.
(f) Insurance. Insure,
repair and replace the Collateral of the Grantor as set forth in the Credit
Agreement; provided that, in any event, the Administrative Agent will be shown
as loss payee for casualty insurance to the extent of the collateral interests
herein.
(g) Commercial Tort
Claims.
(i) Promptly
notify the Administrative Agent in writing of the initiation of any Commercial
Tort Claim in excess of $500,000 before any court or other governmental
authority by or in favor of the Grantor or any of its Subsidiaries.
(ii) Execute
and deliver such statements, documents and notices and do and cause to be done
all such things as the Administrative Agent may reasonably deem necessary,
appropriate or convenient, or as are required by applicable law, to create,
perfect and maintain the Administrative Agent’s security interest in any
Commercial Tort Claim.
5. Advances by
the Administrative Agent. On failure of any Grantor
to perform any of the covenants and agreements contained herein, the
Administrative Agent may, at its sole option and in its sole discretion, perform
the same and in so doing may expend such sums as the Administrative Agent may
reasonably deem advisable in the performance thereof, including the payment of
any insurance premiums, the payment of any taxes, a payment to obtain a release
of a Lien or potential Lien, expenditures made in defending against any adverse
claim and all other expenditures that the Administrative Agent may make for the
protection of the security hereof or that may be compelled to make by operation
of law. All such sums
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and
amounts so expended shall be repayable by the Grantors on a joint and several
basis (subject to Section 22 hereof)
promptly upon timely notice thereof and demand therefor, shall constitute
additional Secured Obligations and shall, subject to Section 4.1 of the Credit
Agreement, bear interest from the date said amounts are expended at the rate
then applicable to Revolving Loans that are Base Rate Loans. No such
performance of any covenant or agreement by the Administrative Agent on behalf
of any Grantor, and no such advance or expenditure therefor, shall relieve the
Grantors of any default under the terms of this Security Agreement, the other
Loan Documents or any other documents relating to the Secured
Obligations. The Administrative Agent may make any payment hereby
authorized in accordance with any xxxx, statement or estimate procured from the
appropriate public office or holder of the claim to be discharged without
inquiry into the accuracy of such xxxx, statement or estimate or into the
validity of any tax assessment, sale, forfeiture, tax lien, title or claim
except to the extent such payment is being contested in good faith by a Grantor
in appropriate proceedings and against which adequate reserves are being
maintained in accordance with GAAP.
6. Remedies.
(a) General
Remedies. Upon
the occurrence of an Event of Default and during the continuation thereof with
prior written notice to the Grantors, the Administrative Agent and the other
holders of the Secured Obligations shall have, in addition to the rights and
remedies provided herein, in the Loan Documents, in any other documents relating
to the Secured Obligations, or by law (including levy of attachment and
garnishment), the rights and remedies of a secured party under the UCC of the
jurisdiction applicable to the affected Collateral and, further, the
Administrative Agent may, with or without judicial process or the aid and
assistance of others, (i) enter on any premises on which any of the Collateral
may be located and, without resistance or interference by the Grantors, take
possession of the Collateral, (ii) dispose of any Collateral on any such
premises, (iii) require the Grantors to assemble and make available to the
Administrative Agent at the expense of the Grantors any Collateral at any place
and time designated by the Administrative Agent that is reasonably convenient to
both parties, (iv) remove any Collateral from any such premises for the purpose
of effecting sale or other disposition thereof, and/or (v) without demand and
without advertisement, notice, hearing or process of law, all of which each of
the Grantors hereby waives to the fullest extent permitted by law, at any place
and time or times, sell and deliver any or all Collateral held by or for it at
public or private sale, by one or more contracts, in one or more parcels, for
cash, upon credit or otherwise, at such prices and upon such terms as the
Administrative Agent deems advisable, in its sole discretion (subject to any and
all mandatory legal requirements). Each of the Grantors acknowledges
that any private sale referenced above may be at prices and on terms less
favorable to the seller than the prices and terms that might have been obtained
at a public sale and agrees that such private sale shall be deemed to have been
made in a commercially reasonable manner. Neither the Administrative
Agent’s compliance with applicable law nor its disclaimer of warranties relating
to the Collateral shall be considered to adversely affect the commercial
reasonableness of any sale. In addition to all other sums due the
Administrative Agent and the other holders of the Secured Obligations with
respect to the Secured Obligations, the Grantors shall pay the Administrative
Agent and each of the other holders of the Secured Obligations all reasonable
costs and expenses incurred by the Administrative Agent or any such other holder
of the Secured Obligations (including reasonable attorneys’ fees and
disbursements and court costs) in obtaining or liquidating the Collateral, in
enforcing payment of the Secured Obligations, or in the prosecution or defense
of any action or proceeding by or against the Administrative Agent or the other
holders of the Secured Obligations or the Grantors concerning any matter arising
out of or connected with this Security Agreement, any Collateral or the Secured
Obligations, including any of the foregoing arising in, arising under or related
to a case under Debtor Relief Laws. To the extent the rights of
notice cannot be legally waived hereunder, each Grantor agrees that any
requirement of reasonable notice shall be met if such notice is personally
served on or mailed, postage prepaid, to the Company in
accordance
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with the notice provisions of Section 15.3 of the Credit Agreement at least ten (10) Business Days before the time of sale or other event giving rise to the requirement of such notice. The Administrative Agent and the other holders of the Secured Obligations shall not be obligated to make any sale or other disposition of the Collateral regardless of notice having been given. To the extent permitted by law, any holder of the Secured Obligations may be a purchaser at any such sale. To the extent permitted by applicable law, each of the Grantors hereby waives all of its rights of redemption with respect to any such sale. Subject to the provisions of applicable law, the Administrative Agent and the other holders of the Secured Obligations may postpone or cause the postponement of the sale of all or any portion of the Collateral by announcement at the time and place of such sale, and such sale may, without further notice, to the extent permitted by law, be made at the time and place to which the sale was postponed, or the Administrative Agent and the other holders of the Secured Obligations may further postpone such sale by announcement made at such time and place.
(b) Remedies Relating to
Accounts. Upon the occurrence of an Event of Default and
during the continuation thereof, whether or not the Administrative Agent has
exercised any or all of its rights and remedies hereunder, each Grantor will
promptly upon request of the Administrative Agent instruct all account debtors
to remit all payments in respect of Accounts to a mailing location selected by
the Administrative Agent. In addition, upon the occurrence and during
the continuance of an Event of Default and prior written notice to such Grantor,
the Administrative Agent shall have the right to enforce any Grantor’s rights
against its customers and account debtors, and the Administrative Agent or its
designee may notify any Grantor’s customers and account debtors that the
Accounts of such Grantor have been assigned to the Administrative Agent or of
the Administrative Agent’s security interest therein, and may (either in its own
name or in the name of a Grantor or both) demand, collect (including by way of a
lockbox arrangement), receive, take receipt for, sell, xxx for, compound,
settle, compromise and give acquittance for any and all amounts due or to become
due on any Account, and, in the Administrative Agent’s discretion, file any
claim or take any other action or proceeding to protect and realize upon the
security interest of the Administrative Agent and the other holders of the
Secured Obligations in the Accounts. Each Grantor acknowledges and
agrees that the Proceeds of its Accounts remitted to or on behalf of the
Administrative Agent in accordance with the provisions hereof shall be solely
for the Administrative Agent’s own convenience and that such Grantor shall not
have any right, title or interest in such Accounts or in any such other amounts
except as expressly provided herein. The Administrative Agent and the
other holders of the Secured Obligations shall have no liability or
responsibility to any Grantor for acceptance of a check, draft or other order
for payment of money bearing the legend “payment in full” or words of similar
import or any other restrictive legend or endorsement or be responsible for
determining the correctness of any remittance. Each Grantor hereby
agrees to indemnify the Administrative Agent and the other holders of the
Secured Obligations from and against all liabilities, damages, losses, actions,
claims, judgments, costs, expenses, charges and reasonable attorneys’ fees and
disbursements suffered or incurred by the Administrative Agent or the other
holders of the Secured Obligations (each, an “Indemnified Party”)
because of the maintenance of the foregoing arrangements except as relating to
or arising out of the gross negligence or willful misconduct of an Indemnified
Party or its officers, employees or agents. In the case of any
investigation, litigation or other proceeding, the foregoing indemnity shall be
effective whether or not such investigation, litigation or proceeding is brought
by a Grantor, its directors, shareholders or creditors or an Indemnified Party
or any other Person or any other Indemnified Party is otherwise a party
thereto. All amounts due under this subsection shall be payable
within ten (10) Business Days after demand therefor.
(c) Access. In addition to the rights
and remedies hereunder, upon the occurrence of an Event of Default and during
the continuation thereof, the Administrative Agent shall have the right to enter
and remain upon the various premises of the Grantors without cost or charge to
the
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Administrative
Agent, and use the same, together with materials, supplies, books and records of
the Grantors for the purpose of collecting and liquidating the Collateral, or
for preparing for sale and conducting the sale of the Collateral, whether by
foreclosure, auction or otherwise. In addition, the Administrative
Agent may remove Collateral, or any part thereof, from such premises and/or any
records with respect thereto, in order to effectively collect or liquidate such
Collateral.
(d) Nonexclusive Nature of
Remedies. Failure by the Administrative Agent or the other
holders of the Secured Obligations to exercise any right, remedy or option under
this Security Agreement, any other Loan Document, any other documents relating
to the Secured Obligations, or as provided by applicable law, or any delay by
the Administrative Agent or the other holders of the Secured Obligations in
exercising the same, shall not operate as a waiver of any such right, remedy or
option. No waiver hereunder shall be effective unless it is in
writing, signed by the party against whom such waiver is sought to be enforced
and then only to the extent specifically stated, which in the case of the
Administrative Agent or the other holders of the Secured Obligations shall only
be granted as provided herein. To the extent permitted by applicable
law, neither the Administrative Agent nor the other holders of the Secured
Obligations, nor any party acting as attorney for the Administrative Agent or
the other holders of the Secured Obligations, shall be liable hereunder for any
acts or omissions or for any error of judgment or mistake of fact or law other
than their gross negligence or willful misconduct hereunder. The
rights and remedies of the Administrative Agent and the other holders of the
Secured Obligations under this Security Agreement shall be cumulative and not
exclusive of any other right or remedy that the Administrative Agent or the
other holders of the Secured Obligations may have.
(e) Retention of
Collateral. To the extent permitted under applicable law, in
addition to the rights and remedies hereunder, upon the occurrence and
continuance of an Event of Default, the Administrative Agent may, after
providing the notices required by Sections 9-620 and 9-621 of the UCC or
otherwise complying with the requirements of applicable law of the relevant
jurisdiction, accept or retain all or any portion of the Collateral in
satisfaction of the Secured Obligations. Unless and until the
Administrative Agent shall have provided such notices, however, the
Administrative Agent shall not be deemed to have accepted or retained any
Collateral in satisfaction of any Secured Obligations for any
reason.
(f) Deficiency. In
the event that the proceeds of any sale, collection or realization are
insufficient to pay all amounts to which the Administrative Agent or the other
holders of the Secured Obligations are legally entitled, the Grantors shall be
jointly and severally liable for the deficiency (subject to Section 22 hereof),
together with interest thereon (subject to Section 4.1 of the Credit Agreement,
at the rate then applicable to Revolving Loans that are Base Rate Loans)
together with the reasonable costs of collection and reasonable attorneys’ fees
and disbursements. Any surplus remaining after the full payment and
satisfaction of the Secured Obligations shall be returned to the Grantors or to
whomsoever a court of competent jurisdiction shall determine to be entitled
thereto.
7. Rights of the Administrative
Agent.
(a) Power of
Attorney. In addition to other powers of attorney contained
herein, each Grantor hereby designates and appoints the Administrative Agent, on
behalf itself and the other holders of the Secured Obligations, and each of its
designees or agents, as attorney-in-fact of such Grantor, irrevocably and with
power of substitution, with authority to take any or all of the following
actions upon the occurrence and during the continuation of an Event of
Default:
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(i) to
demand, collect, settle, compromise and adjust, and give discharges and releases
concerning the Collateral, all as the Administrative Agent may reasonably deem
appropriate;
(ii) to
commence and prosecute any actions at any court for the purposes of collecting
any of the Collateral and enforcing any other right in respect
thereof;
(iii) to
defend, settle or compromise any action brought and, in connection therewith,
give such discharge or release as the Administrative Agent may reasonably deem
appropriate;
(iv) to
receive, open and dispose of mail addressed to a Grantor and endorse checks,
notes, drafts, acceptances, money orders, bills of lading, warehouse receipts or
other instruments or documents evidencing payment, shipment or storage of the
Goods giving rise to the Collateral on behalf of and in the name of such
Grantor, or securing, or relating to such Collateral;
(v) to
pay or discharge taxes, liens, security interests or other encumbrances levied
or placed on or threatened against the Collateral;
(vi) to
direct any parties liable for any payment in connection with any of the
Collateral to make payment of any and all monies due and to become due
thereunder directly to the Administrative Agent or as the Administrative Agent
shall direct;
(vii) to
receive payment of and receipt for any and all monies, claims, and other amounts
due and to become due at any time in respect of or arising out of any
Collateral;
(viii) to
sell, assign, transfer, make any agreement in respect of, or otherwise deal with
or exercise rights in respect of, any Collateral or the Goods or services that
have given rise thereto, as fully and completely as though the Administrative
Agent were the absolute owner thereof for all purposes;
(ix) to
adjust and settle claims under any insurance policy relating
thereto;
(x) to
authorize or to execute and deliver all assignments, conveyances, statements,
financing statements, renewal financing statements, security and pledge
agreements, affidavits, notices and other agreements, instruments and documents
that the Administrative Agent may reasonably deem appropriate in order to
perfect and maintain the security interests and liens granted in this Security
Agreement and in order to fully consummate all of the transactions contemplated
therein;
(xi) to
institute any foreclosure proceedings that the Administrative Agent may
reasonably deem appropriate; and
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(xii) to
do and perform all such other acts and things as the Administrative Agent may
reasonably deem appropriate or convenient in connection with the
Collateral.
This
power of attorney is a power coupled with an interest and shall be irrevocable
for so long as any of the Secured Obligations shall remain outstanding and until
all of the commitments relating thereto shall have been
terminated. The Administrative Agent shall be under no duty to
exercise or withhold the exercise of any of the rights, powers, privileges and
options expressly or implicitly granted to the Administrative Agent in this
Security Agreement, and shall not be liable for any failure to do so or any
delay in doing so. The Administrative Agent shall not be liable for
any act or omission or for any error of judgment or any mistake of fact or law
in its individual capacity or its capacity as attorney-in-fact except acts or
omissions resulting from its gross negligence or willful
misconduct. This power of attorney is conferred on the Administrative
Agent solely to protect, preserve and realize upon its security interest in the
Collateral.
(b) Assignment by the
Administrative Agent. The Administrative Agent may from time
to time assign the Secured Obligations and any portion thereof and/or the
security interest held by it in the Collateral and any portion thereof in
connection with its resignation as Administrative Agent pursuant to Section 14.6
of the Credit Agreement, and the assignee shall be entitled to all of the rights
and remedies of the Administrative Agent under this Security Agreement in
relation thereto.
(c) The Administrative Agent’s
Duty of Care. Other than the exercise of reasonable care to
assure the safe custody of the Collateral while being held by the Administrative
Agent hereunder, the Administrative Agent shall have no duty or liability to
preserve rights pertaining thereto, it being understood and agreed that the
Grantors shall be responsible for preservation of all rights in the Collateral,
and the Administrative Agent shall be relieved of all responsibility for the
Collateral upon surrendering it or tendering the surrender of it to the
Grantors. The Administrative Agent shall be deemed to have exercised
reasonable care in the custody and preservation of the Collateral in its
possession if such Collateral is accorded treatment substantially equal to that
which the Administrative Agent accords its own property, of like value, which
shall be no less than the treatment employed by a reasonable and prudent agent
in the industry, it being understood that the Administrative Agent shall not
have responsibility for taking any necessary steps to preserve rights against
any parties with respect to any of the Collateral. In the event of a
public or private sale of Collateral pursuant to Section 7 hereof, the
Administrative Agent shall have no obligation to clean, repair or otherwise
prepare the Collateral for sale.
8. Rights of Required
Lenders. If Bank of America has resigned as Administrative
Agent and no successor Administrative Agent has been appointed pursuant to
Section 14.6 of the Credit Agreement, all rights of the Administrative Agent
hereunder may be exercised by the Required Lenders.
9. Application of
Proceeds. Upon the occurrence and during the continuation of
an Event of Default, any payments in respect of the Secured Obligations and any
proceeds of the Collateral, when received by the Administrative Agent or any of
the other holders of the Secured Obligations in cash or its equivalent, will be
applied in reduction of the Secured Obligations in the order set forth in the
Credit Agreement or other document relating to the Secured Obligations, and each
Grantor irrevocably waives the right to direct the application of such payments
and proceeds and acknowledges and agrees that the Administrative Agent shall
have the continuing and exclusive right to apply and reapply any and all such
payments and proceeds in the Administrative Agent’s sole discretion,
notwithstanding any entry to the contrary upon any of its books and
records.
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10. Release of
Collateral. Upon request, the Administrative Agent shall
promptly deliver to the applicable Grantor (at such Grantor’s expense)
appropriate release documentation to the extent the release of Collateral is
permitted under, and on the terms and conditions set forth in, the Credit
Agreement; provided that any
such release, or the substitution of any of the Collateral for other Collateral,
will not alter, vary or diminish in any way the force, effect, lien, pledge or
security interest of this Security Agreement as to any and all Collateral not
expressly released or substituted, and this Security Agreement shall continue as
a first priority lien (subject to Permitted Liens) on any and all Collateral not
expressly released or substituted.
11. Costs and
Expenses. At all times hereafter, whether or not upon the
occurrence of an Event of Default, the Grantors agree to promptly pay upon
demand any and all reasonable costs and expenses (including reasonable
attorneys’ fees and disbursements) of the Administrative Agent and the other
holders of the Secured Obligations (a) as required under Section 15.5 of the
Credit Agreement and (b) as necessary to protect the Collateral or to exercise
any rights or remedies under this Security Agreement or with respect to any of
the Collateral. All of the foregoing costs and expenses shall
constitute Secured Obligations hereunder.
12. Continuing
Agreement.
(a) This
Security Agreement shall be a continuing agreement in every respect and shall
remain in full force and effect so long as any of the Secured Obligations
remains outstanding (other than contingent indemnity obligations that are not
yet due and payable) and until all of the commitments relating thereto have been
terminated. Upon such payment and termination, this Security
Agreement shall be automatically terminated and the Administrative Agent shall,
upon the request and at the expense of the Grantors, forthwith release all of
its liens and security interests hereunder and shall execute and deliver all UCC
termination statements and/or other documents reasonably requested by the
Grantors evidencing such termination. Notwithstanding the foregoing,
all indemnities provided hereunder shall survive termination of this Security
Agreement.
(b) This
Security Agreement shall continue to be effective or be automatically
reinstated, as the case may be, if at any time payment, in whole or in part, of
any of the Secured Obligations is rescinded or must otherwise be restored or
returned by the Administrative Agent or any holder of the Secured Obligations as
a preference, fraudulent conveyance or otherwise under any Debtor Relief Law,
all as though such payment had not been made; provided that in the event payment
of all or any part of the Secured Obligations is rescinded or must be restored
or returned, all reasonable costs and expenses (including reasonable attorneys’
fees and disbursements) incurred by the Administrative Agent or any holder of
the Secured Obligations in defending and enforcing such reinstatement shall be
deemed to be included as a part of the Secured Obligations.
13. Amendments and
Waivers. This Security Agreement and the provisions hereof may
not be amended, waived, modified, changed, discharged or terminated except by
written agreement of (a) the Grantors and (b) the Administrative Agent (with the
consent or at the direction of the requisite Lenders under the Credit
Agreement).
14. Successors in
Interest. This Security Agreement shall create a continuing
security interest in the Collateral and shall be binding upon each Grantor, its
successors and assigns, and shall inure, together with the rights and remedies
of the Administrative Agent and the other holders of the Secured Obligations
hereunder, to the benefit of the Administrative Agent and the other holders of
the Secured Obligations and their successors and permitted assigns; provided, however,
that none of the Grantors may assign its rights or delegate its duties hereunder
without the prior written consent of the requisite Lenders under the Credit
Agreement.
- 11 -
15. Notices. All
notices required or permitted to be given under this Security Agreement shall be
given as provided in Section 15.3 of the Credit Agreement.
16. Counterparts. This
Security Agreement may be executed in any number of counterparts, each of which
when so executed and delivered shall be an original, but all of which shall
constitute one and the same instrument. It shall not be necessary in
making proof of this Security Agreement to produce or account for more than one
such counterpart.
17. Governing Law; Forum
Selection and Venue; Waiver of Jury Trial; Service of
Process.
(a) THIS
SECURITY AGREEMENT SHALL BE A CONTRACT MADE UNDER AND GOVERNED BY THE
INTERNAL LAWS OF THE STATE OF ILLINOIS APPLICABLE TO CONTRACTS MADE AND TO BE
PERFORMED ENTIRELY WITHIN SUCH STATE, WITHOUT REGARD TO CONFLICT OF LAWS
PRINCIPLES.
(b) FORUM SELECTION AND CONSENT
TO JURISDICTION; SERVICE OF
PROCESS. ANY LITIGATION BASED HEREON, OR ARISING OUT OF,
UNDER, OR IN CONNECTION WITH THIS SECURITY AGREEMENT OR ANY OTHER LOAN DOCUMENT,
SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY IN THE COURTS OF THE STATE OF
ILLINOIS OR IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF
ILLINOIS; PROVIDED THAT NOTHING
IN THIS SECURITY AGREEMENT SHALL BE DEEMED OR OPERATE TO PRECLUDE THE
ADMINISTRATIVE AGENT FROM BRINGING SUIT OR TAKING OTHER LEGAL ACTION IN ANY
OTHER JURISDICTION. EACH GRANTOR HEREBY EXPRESSLY AND IRREVOCABLY
SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE OF ILLINOIS AND OF THE
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS FOR THE
PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE. EACH GRANTOR
FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED MAIL,
POSTAGE PREPAID, OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF
ILLINOIS. EACH GRANTOR HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER
HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT
REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM.
(c) WAIVER OF JURY
TRIAL. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING
TO THIS SECURITY AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE,
AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
THAT SUCH OTHER PERSON 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 SECURITY AGREEMENT AND THE OTHER
LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN
THIS SECTION.
- 12 -
(d) EACH
PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED
FOR NOTICES IN SECTION 15.3 OF THE CREDIT AGREEMENT. NOTHING IN
THIS SECURITY AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE
PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.
18. Severability. If
any provision of this Security Agreement or any related document is held to be
illegal, invalid or unenforceable, (a) the legality, validity and enforceability
of the remaining provisions of this Security Agreement and any other related
document shall not be affected or impaired thereby and (b) the parties shall
endeavor in good faith negotiations to replace the illegal, invalid or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the illegal, invalid or unenforceable
provisions. The invalidity of a provision in a particular
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
19. Entirety. This
Security Agreement, the other Loan Documents and the other documents relating to
the Secured Obligations comprise the complete and integrated agreement of the
parties on the subject matter hereof and thereof and supersedes all prior
agreements, written or oral, on such subject matter. This Security
Agreement was drafted with the joint participation of the respective parties
thereto and shall be construed neither against nor in favor of any party, but
rather in accordance with the fair meaning thereof.
20. Survival. All
representations and warranties made hereunder or other document delivered
pursuant hereto or in connection herewith shall survive the execution and
delivery hereof and thereof. Such representations and warranties have
been or will be relied upon by the Administrative Agent, the Administrative
Agent and each Lender, regardless of any investigation made by the
Administrative Agent or any Lender or on their behalf and notwithstanding that
the Administrative Agent or any Lender may have had notice or knowledge of any
Default at the time of any Credit Extension, and shall continue in full force
and effect as long as any Loan or any other Obligation shall remain unpaid or
unsatisfied or any Letter of Credit shall remain outstanding.
21. Other
Security. To the extent that any of the Secured Obligations
are now or hereafter secured by property other than the Collateral (including
real property and securities owned by a Grantor), or by a guarantee, endorsement
or property of any other Person, then the Administrative Agent shall have the
right to proceed against such other property, guarantee or endorsement upon the
occurrence of any Event of Default, and the Administrative Agent shall have the
right, in its sole discretion, to determine which rights, security, liens,
security interests or remedies the Administrative Agent shall at any time
pursue, relinquish, subordinate, modify or take with respect thereto, without in
any way modifying or affecting any of them or the Secured Obligations or any of
the rights of the Administrative Agent or the other holders of the Secured
Obligations under this Security Agreement, under any of the other Loan Documents
or under any other document relating to the Secured Obligations.
22. Joint and Several
Obligations of Grantors.
(a) Subject
to subsection
(c) of this Section 22, each of
the Grantors is accepting joint and several liability hereunder in consideration
of the financial accommodation to be provided by the holders of the Secured
Obligations, for the mutual benefit, directly and indirectly, of each of the
Grantors and in consideration of the undertakings of each of the Grantors to
accept joint and several liability for the obligations of each of
them.
(b) Subject to subsection
(c) of this Section
22, each of the Grantors
jointly and severally hereby irrevocably and unconditionally accepts, not merely
as a surety but also as a co-
- 13 -
debtor or
guarantor, joint and several liability with the other Grantors with respect to
the payment and performance of all of the Secured Obligations arising under this
Security Agreement, the other Loan Documents and any other documents relating to
the Secured Obligations, it being the intention of the parties hereto that all
the Secured Obligations shall be the joint and several obligations of each of
the Grantors without preferences or distinction among them.
(c) Notwithstanding
any provision to the contrary contained herein, in any other of the Loan
Documents or in any other documents relating to the Secured Obligations, the
obligations of each Grantor that is a Guarantor under the Credit Agreement and
the other Loan Documents shall be limited to an aggregate amount equal to the
largest amount that would not render such obligations subject to avoidance under
Section 548 of the Bankruptcy Code of the United States or any other applicable
Debtor Relief Law (including any comparable provisions of any applicable state
law).
[Signatures
on Following Pages]
- 14 -
Each of
the parties hereto has caused a counterpart of this Security Agreement to be
duly executed and delivered as of the date first above written.
|
GRANTORS:
|
a
Delaware corporation
By: /s/ Xxxxx X.
Xxxxx
Name:
Xxxxx X. Xxxxx
Title:
Vice President and Chief Financial Officer
HURON
CONSULTING GROUP HOLDINGS LLC,
a
Delaware limited liability company
By: /s/ Xxxxx X.
Xxxxx
Name:
Xxxxx X. Xxxxx
Title:
Vice President and Chief Financial Officer
HURON
CONSULTING SERVICES LLC,
a
Delaware limited liability company
By: /s/ Xxxxx X.
Xxxxx
Name:
Xxxxx X. Xxxxx
Title:
Vice President and Chief Financial Officer
WELLSPRING
MANAGEMENT SERVICES LLC,
formerly
known as XXXXXX & XXXX LLC,
a
Delaware limited liability company
By: /s/ Xxxxx X.
Xxxxx
Name:
Xxxxx X. Xxxxx
Title:
Vice President and Chief Financial Officer
HURON
DEMAND LLC,
a
Delaware limited liability company
By: /s/ Xxxxx X.
Xxxxx
Name:
Xxxxx X. Xxxxx
Title:
Vice President and Chief Financial Officer
ADMINISTRATIVE
AGENT: BANK
OF AMERICA, N.A.,
as
Administrative Agent
By: /s/ Xxxxxxx
Xxxxxxxx
Name:
Xxxxxxx Xxxxxxxx
Title:
Vice President
SCHEDULES
Schedule
2(d) Commercial
Tort Claims
|
Schedule
3(a)(i)
|
Legal
Name, Jurisdiction of Organization/Formation, Principal Place of Business,
Chief Executive Office
|
Schedule
3(a)(ii) Mergers,
Consolidations, Changes in Structure, Use of Tradenames
SCHEDULE
2(d)
COMMERCIAL
TORT CLAIMS
Huron
Consulting Services, LLC, a Delaware Limited Liability Company vs. F. Xxxx
Xxxxxx, an individual, Xxxxx Xxxxx, an individual, Xxxxx Xxxxxxx, an individual,
Xxxx Xxxxxxxx, an individual, Xxxxx Xxxxxxxx, an individual and Xxxxxxxxxxxx
Xxxx & Xxxxxxxxx, a Delaware Limited Liability Partnership.
|
|
SCHEDULE 3(a)(i)
|
LEGAL
NAME, JURISDICTION OF ORGANIZATION/FORMATION, PRINCIPAL PLACE OF BUSINESS, CHIEF
EXECUTIVE OFFICE
|
Legal Name
|
Jurisdiction of
Organization
|
|
Delaware
|
|
|
Huron
Consulting Group Holdings LLC
|
Delaware
|
|
Huron
Consulting Services LLC
|
Delaware
|
|
Wellspring
Management Services LLC
|
Delaware
|
|
Huron
Demand LLC
|
Delaware
|
Principal
Place of Business/Chief Executive Office of all Grantors:
000 X.
Xxx Xxxxx Xxxxxx
Xxxxxxx,
XX 00000
SCHEDULE 3(a)(ii)
MERGERS,
CONSOLIDATIONS, CHANGES IN STRUCTURE, USE OF TRADENAMES
Mergers, Consolidations and
Changes in Structure
May 17,
2005
Xxxxxx
& Xxxx LLC, a New Hampshire corporation, was merged into SC Holding, LLC, a
Delaware corporation, with SC Holding, LLC as the surviving entity whose name
became Xxxxxx & Xxxx LLC.
April 1,
2006
Huron
Consulting Groups Holdings LLC replaced Huron Consulting Group Inc. as the
managing and sole member of Xxxxxx & Xxxx LLC.
July 31,
2006
Huron
Consulting Services LLC was assigned assets and assumed obligations of Aaxis
Technologies, Inc., a Virginia corporation. (Aaxis was dissolved August 7,
2008.)
Huron
Consulting Services LLC was assigned assets and assumed obligations of FAB
Advisory Services, LLC, an Illinois limited liability company. (FAB was
dissolved August 7, 2008.)
August
31, 2006
Document
Review Consulting Services LLC, a Delaware limited liability company, was merged
into Huron Consulting Services LLC.
January
2, 2007
Huron
Consulting Services LLC was assigned assets and assumed obligations of Glass
& Associates, Inc., a Delaware corporation. (Glass was dissolved August 6,
2008.)
Huron
Consulting Services LLC was assigned assets and assumed obligations of
Wellspring Partners Ltd., a Delaware corporation. (Wellspring was dissolved
September 29, 2008.)
January
4, 2007
Xxxxxx
& Xxxx LLC was renamed Huron Management Services LLC.
January
26, 2007
Huron
Management Services LLC was renamed Wellspring Management Services
LLC.
Use of
Tradenames
Huron
Consulting Services LLC d/b/a Galt & Company
Huron
Consulting Services LLC d/b/a Xxxxxxxx & Associates
Huron
Consulting Services LLC d/b/a Wellspring Partners
