EXHIBIT 10.2
SECURITY AGREEMENT
THIS SECURITY AGREEMENT (this "AGREEMENT") is made and entered into this
12th day of July, 2002 by and among INFORMATION RESCOURCES, INC., a Delaware
corporation, 000 XXXXXXXX XX. #0, a Delaware corporation, IRI PUERTO RICO, INC.,
a Puerto Rico corporation, IRI VENEZUELA HOLDINGS, INC., a Delaware corporation,
IRI GUATEMALA HOLDINGS, INC., a Delaware corporation, IRI GREEK HOLDINGS, INC.,
a Delaware corporation, IRI FRENCH HOLDINGS, INC., a Delaware corporation, IRI
ITALY HOLDINGS, INC., a Delaware corporation, INFOSCAN ITALY HOLDINGS, INC., a
Delaware corporation, SHOPPERS HOTLINE, INC., a Delaware corporation, NORTH
CLINTON CORPORATION, an Illinois corporation (each, a "BORROWER" and
collectively, "BORROWERS"), in favor of Lenders who are a party to the Credit
Agreement (each, a "LENDER" and collectively, "LENDERS") and LASALLE BANK
NATIONAL ASSOCIATION ("LASALLE" or "ADMINISTRATIVE AGENT"), as a Lender and as
Administrative Agent for Lenders.
WHEREAS, Borrowers have requested extensions of credit from Lenders
pursuant to the terms of that certain Revolving Credit Agreement dated of even
date herewith entered into among Borrowers, Administrative Agent and Lenders
(the "CREDIT AGREEMENT"); and
WHEREAS, in order to induce Lenders to make such extensions of credit to
Borrowers, Administrative Agent requires that each Borrower grant to Lenders a
first priority security interest in all the assets of Borrowers in accordance
with and subject to the terms of this Agreement and the Credit Documents (as
defined in the Credit Agreement); and
WHEREAS, each Borrower has determined that the execution, delivery and
performance of this Agreement is in its best interest.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. DEFINITIONS
When used in this Agreement, the following terms shall have the following
meanings (all capitalized terms used herein and not defined shall have the
meaning ascribed to them in the Credit Agreement):
"ACCOUNT DEBTOR" shall mean any Person who is or who may become obligated
to any Borrower and its Subsidiaries under, with respect to, or on account of an
Account.
"ACCOUNTS" shall mean any account (including, without limitation, all right
to payment for services rendered or goods sold or leased), payment obligation,
contract right, lease, instrument, life insurance policy, and note of any
Borrower and its Subsidiaries, whether now owned or hereafter acquired,
including, without limitation, any Eligible Billed Receivables and Eligible
Unbilled Receivables.
"ADMINISTRATIVE AGENT" shall have the meaning ascribed to it in the
preamble.
"AGREEMENT" shall have the meaning ascribed to it in the preamble.
"BORROWER(S)" shall have the meaning ascribed to it in the preamble.
"CHATTEL PAPER" shall mean any "chattel paper", as such term is defined in
Article 9 of the UCC, whether now owned or hereafter acquired by any Borrower
and its Subsidiaries, including, without limitation, all Electronic Chattel
Paper,.
"COLLATERAL" shall have the meaning ascribed to such term in Section 2 of
this Agreement.
"COMMERCIAL TORT CLAIM" shall mean any "commercial tort claim", as such
term is defined in Article 9 of the UCC, whether now owned or hereafter acquired
by any Borrower and its Subsidiaries, including, without limitation, those set
forth on SCHEDULE 1 attached hereto.
"COPYRIGHT LICENSE" shall mean any written agreement or arrangement now or
hereafter in existence granting to Borrowers and their respective Subsidiaries
any right to use any Copyright, including, but not limited to, those set forth
on SCHEDULE 2 attached hereto; provided, however, that there shall be excluded
from the Collateral any Copyright License to the extent, and only to the extent,
that such Copyright License contains, as of the date of this Agreement, a
legally enforceable provision under the UCC that would give any other party to
such agreement or instrument the right to terminate its obligations or otherwise
precludes such encumbrance thereunder based on the grant of the security
interest created herein pursuant to the terms of this Agreement (except that if
and when any prohibition on the assignment, pledge or grant of Lien on such
Copyright License is removed or such assignment, pledge or grant is consented
to, Administrative Agent will be deemed to have been granted a security interest
in such Copyright License as of the date hereof or other earliest legally valid
date, and the Collateral will be deemed to include such Copyright License);
provided, that in any event the foregoing limitation shall not affect, limit,
restrict or impair the grant by any Borrower and its Subsidiaries of a security
interest pursuant to this Agreement in any accounts receivable or any money or
other amounts due or to become due under such agreement or instrument.
"COPYRIGHTS" shall mean all of the following: (a) all copyrights, works
protectable by copyright, copyright registrations and copyright applications of
Borrowers and their respective Subsidiaries, including, but not limited to,
those set forth on SCHEDULE 3 attached hereto, (b) all renewals, extensions and
modifications thereof; (c) all income, royalties, damages, profits and payments
relating to or payable under any of the foregoing; (d) the right to xxx for
past, present or future infringements of any of the foregoing; (e) all other
rights and benefits relating to any of the foregoing throughout the world; and
(f) all goodwill associated with and symbolized by any of the foregoing; in each
case, whether now owned or hereafter acquired by any Borrowers and its
Subsidiaries.
"CREDIT AGREEMENT" shall have the meaning provided in the recitals hereto.
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"DEPOSIT ACCOUNTS" shall mean any "deposit accounts", as such term is
defined in Article 9 of the UCC, whether now owned or hereafter acquired by any
Borrower and its Subsidiaries, including, without limitation, any and all
deposit accounts (including cash collateral accounts), bank accounts or
investment accounts of any Borrower and its Subsidiaries, and any account which
is a replacement or substitute for any of such accounts, together with all
Money, Instruments, certificates, checks, drafts, wire transfer receipts and
other Property deposited therein and all balances therein and all investments
made with funds deposited therein or otherwise held in connection therewith,
together with all earnings, profits or other Proceeds therefrom in the form of
interest or otherwise, from time to time representing, evidencing, deposited
into or held in such deposit accounts, bank accounts or investment accounts,
including, without limitation, those set forth on SCHEDULE 10 attached hereto.
"DOCUMENT" shall mean any "document", as such term is defined in Article 9
of the UCC, whether now owned or hereafter acquired by any Borrower and its
Subsidiaries, including, without limitation, all documents of title and all
receipts covering, evidencing or representing goods now owned or hereafter
acquired by any Borrower and its Subsidiaries.
"ELECTRONIC CHATTEL PAPER" shall mean any "electronic chattel paper", as
such term is defined in Article 9 of the UCC, whether now owned or hereafter
acquired any Borrower and its Subsidiaries.
"EQUIPMENT" shall mean any "equipment", as such term is defined in Article
9 of the UCC, whether now owned or hereafter acquired by any Borrower and its
Subsidiaries, including without limitation, furniture, machinery and vehicles,
together with any and all accessories, parts, appurtenances, substitutions and
replacements.
"EVENT OF DEFAULT" shall have the meaning ascribed to such term in Section
6 hereof.
"FIXTURES" shall mean any "fixtures", as such term is defined in Article 9
of the UCC, whether now owned or hereafter acquired by any Borrower and its
Subsidiaries, including, without limitation, all plant fixtures, trade fixtures,
business fixtures, other fixtures and storage facilities, wherever located, and
all additions and accessions thereto and replacements thereto.
"GENERAL INTANGIBLES" shall mean all contract rights, choses in action,
general intangibles, causes of action and all other intangible personal property
of Borrowers and their respective Subsidiaries of every kind and nature (other
than Accounts) now owned or hereafter acquired by any Borrower and its
Subsidiaries. Without in any way limiting the generality of the foregoing,
General Intangibles specifically includes, without limitation, all corporate or
other business records, Deposit Accounts, inventions, designs, Patents,
Trademarks, Copyrights, service marks, service xxxx applications, trade names,
trade secrets, goodwill, registrations, licenses, leasehold interests,
franchises and tax refund claims owned by a Borrower or its Subsidiaries and all
letters of credit, banker's acceptances, guarantee claims, security interests or
other security held by or granted to a Borrower or its Subsidiaries to secure
payment by an Account Debtor and such other assets as Administrative Agent
reasonably determines to be intangible.
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"GOVERNMENTAL AUTHORITY" shall mean any nation or government, any state,
provincial or political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"INDEBTEDNESS" shall mean, without duplication, all of Borrowers' and their
respective Subsidiaries' liabilities, obligations and indebtedness to
Administrative Agent or any Lender of any and every kind and nature, whether
primary, secondary, direct, absolute, contingent, fixed, or otherwise
(including, without limitation, interest, charges, expenses, attorneys' fees and
other sums chargeable to a Borrower or its Subsidiaries by Administrative Agent
or any Borrower, future advances made to or for the benefit of a Borrower and
obligations of performance), whether arising under the Credit Agreement, under
any of the Ancillary Agreements or acquired by Administrative Agent or any
Lender from any other source, whether previously, now or to be owing, arising,
due, or payable from a Borrower and its Subsidiaries to Administrative Agent or
any Lender, however evidenced, created, incurred, acquired or owing and however
arising, whether under written or oral agreement, operation of law, or
otherwise.
"INSTRUMENTS" shall mean any "instrument", as such term is defined in
Article 9 of the UCC, whether now owned or hereafter acquired by any Borrower
and its Subsidiaries, including, but not limited to, all promissory notes,
drafts, bills of exchange and trade acceptances of any Borrower and its
Subsidiaries, whether now owned or hereafter acquired.
"INSURANCE PROCEEDS" shall mean all proceeds of any and all insurance
policies payable to any Borrower or its Subsidiaries with respect to any
Collateral, or on behalf of any Collateral, whether or not such policies are
issued to or owned by such Borrower or its Subsidiaries.
"INTELLECTUAL PROPERTY" shall mean all Copyrights, Copyright Licenses,
Patents, Patent Licenses, Trademarks and Trademark Licenses, inventions, ideas,
URL domain names, including those listed on SCHEDULE 9 attached hereto,
discoveries, trade names, domain names, jingles, know-how, software, shop
rights, licenses, developments, research data, designs, technology, trade
secrets, test procedures, processes, route lists, customer lists and
information, databases, internet rights, web sites and web pages and content
(such as text, graphics, photographs, video, audio and/or other data or
information relating to any subject contained therein), e-commerce rights and
licenses applications, computer programs, computer discs, computer tapes,
literature, reports and other confidential information, intellectual and similar
intangible property rights, whether or not patentable, trademarkable or
copyrightable (or otherwise subject to legally enforceable restrictions or
protections against unauthorized third party usage), and any and all
applications for, registrations of and extensions, divisions, renewals and
reissuance of, any of the foregoing, and rights therein, of any Borrower and any
of its Subsidiaries.
"INVENTORY" shall mean all goods, inventory, merchandise, finished goods,
component goods, packaging materials and other personal property including,
without limitation, goods in transit, wherever located and whether now owned or
to be acquired by any Borrower or any Subsidiary which is or may at any time be
held for sale or lease, furnished under any contract of service or held as raw
materials, work in process, supplies or materials used or consumed in Borrowers'
and their respective Subsidiaries' business, and all such property the sale or
other disposition of which has given rise to Accounts and which has been
returned to or repossessed or stopped in transit by a Borrower.
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"INVESTMENT PROPERTY" shall mean any "investment property", as such term is
defined in Article 9 of the UCC, whether now owned or hereafter acquired by any
Borrower and its Subsidiaries, including, without limitation the Investment
Property described on SCHEDULE 4 attached hereto.
"LENDER(S)" shall have the meaning set forth in the preamble hereto.
"LETTER OF CREDIT RIGHTS" shall mean any "letter of credit rights", as such
term is defined in Article 9 of the UCC, whether now owned or hereafter acquired
by any Borrower and its Subsidiaries including, without limitation, rights to
payment or performance under a letter of credit, whether or not such Borrower or
its Subsidiaries have demanded or is entitled to demand payment or performance.
"LIEN" shall mean any mortgage, pledge or lease of, security interest in or
lien, charge, restriction or encumbrance on any Property of the Person involved
in favor of or which secures any obligation to, any other Person.
"LOCKBOX" shall have the meaning set forth in the Credit Agreement.
"MONEY" shall mean any "money", as such term is defined in Article 1 of the
UCC, whether now owned or hereafter acquired by any Borrower and its
Subsidiaries.
"NONCASH PROCEEDS" shall mean any "noncash proceeds", as such term in
Article 9 of the UCC, whether now owned or hereafter acquired by any Borrower
and its Subsidiaries.
"PATENT LICENSE" shall mean any written agreement or arrangement now or
hereafter in existence granting to Borrower or its Subsidiaries any right to use
any invention on which a Patent is in existence including, without limitation,
the agreements described on SCHEDULE 5 attached hereto; provided, however, that
there shall be excluded from the Collateral any Patent License to the extent,
and only to the extent, that such Patent License contains, as of the date of
this Agreement a legally enforceable provision under the UCC that would give any
other party to such agreement or instrument the right to terminate its
obligations thereunder based on the grant of the security interest created
herein pursuant to the terms of this Agreement (except that if and when any
prohibition on the assignment, pledge or grant of Lien on such Patent License is
removed or such assignment, pledge or grant is consented to, Administrative
Agent will be deemed to have been granted a security interest in such Patent
License as of the date hereof or other earliest legally valid date, and the
Collateral will be deemed to include such Patent License); provided, that in any
event the foregoing limitation shall not affect, limit, restrict or impair the
grant by Borrower and its Subsidiaries of a security interest pursuant to this
Agreement in any accounts receivable or any money or other amounts due or to
become due under such agreement or instrument.
"PATENTS" shall mean all of the following: (a) all patents, patent
applications and patentable inventions of any Borrower and its Subsidiaries,
including, but not limited to, those set forth on SCHEDULE 6 attached hereto,
and all of the inventions and improvements described
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and claimed therein; (b) all continuations, re-examinations, divisions,
renewals, extensions, modifications, substitutions, continuations-in-part or
reissues of any of the foregoing; (c) all income, royalties, profits, damages,
awards and payments relating to or payable under any of the foregoing; (d) the
right to xxx for past, present and future infringements of any of the foregoing;
(e) all other rights and benefits relating to any of the foregoing throughout
the world; and (f) all goodwill associated with any of the foregoing; in each
case, whether now owned or hereafter acquired by any Borrower and its
Subsidiaries.
"PAYMENT INTANGIBLES" shall mean any "payment intangibles", as such term is
defined in Article 9 of the UCC, whether now owned or hereafter acquired by any
Borrower and its Subsidiaries.
"PERMITTED LIENS" shall have the meaning provided in the Credit Agreement.
"PERSON" shall, mean and includes natural persons, corporations (business,
municipal or not-for-profit), limited partnerships, general partnerships,
limited liability companies, joint stock companies, joint ventures,
associations, companies, trusts, banks, trust companies, land trusts, business
trusts and other organizations, whether or not legal entities, and governments
and agencies and political subdivisions thereof.
"PROCEEDS" shall mean any "proceeds", as such term is defined in Article 9
of the UCC, whether now owned or hereafter acquired by a Borrower and any of its
Subsidiaries, including, but not limited to, (a) any and all proceeds of any
insurance, indemnity, warranty or guaranty payable to any Borrower or its
Subsidiaries from time to time with respect to any of the Collateral, (b) any
and all payments (in any form whatsoever) made or due and payable to any
Borrower or its Subsidiaries from time to time in connection with any
requisition, confiscation, condemnation, seizure or forfeiture of all or any
part of the Collateral by any Governmental Authority (or any Person acting, or
purporting to act, for or on behalf of any Governmental Authority), and (c) any
and all other amounts from time to time paid or payable under or in connection
with any of the Collateral and all other Payment Intangibles relating thereto.
"PRODUCTS" shall mean any goods now or hereafter manufactured, processed or
assembled with any of the Collateral.
"PROPERTY" means any and all rights, titles and interests in and to any and
all property whether real or personal, tangible (including cash) or intangible,
and wherever situated and whether now owned or hereafter acquired.
"SUBSIDIARY" shall mean, as to any Person (a) any corporation, more than
50% of whose stock of any class or classes having by the terms thereof ordinary
voting power to elect a majority of the directors of such corporation
(irrespective of whether or not at the time stock of any class or classes of
such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time owned by such Person and/or one or
more Subsidiaries of such Person and (b) any partnership, association, joint
venture, or other entity in which such Person and/or one or more Subsidiaries of
such Person has greater than a 50% equity interest at the time.
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"TRADEMARK LICENSE" shall mean any written agreement now or hereafter in
existence granting to any Borrower or its Subsidiaries any right to use any
Trademark, including, without limitation, the agreements identified on SCHEDULE
7 attached hereto; provided, however, that there shall be excluded from the
Collateral any Trademark License to the extent, and only to the extent, that
such Trademark License contains, as of the date of this Agreement a legally
enforceable provision under the UCC that would give any other party to such
agreement or instrument the right to terminate its obligations thereunder based
on the grant of the security interest created herein pursuant to the terms of
this Agreement (except that if and when any prohibition on the assignment,
pledge or grant of Lien on such Trademark License is removed or such assignment,
pledge or grant is consented to, Administrative Agent will be deemed to have
been granted a security interest in such Trademark License as of the date hereof
or other earliest legally valid date, and the Collateral will be deemed to
include such Trademark License); provided, that in any event the foregoing
limitation shall not affect, limit, restrict or impair the grant by any Borrower
and its Subsidiaries of a security interest pursuant to this Agreement in any
accounts receivable or any money or other amounts due or to become due under
such agreement or instrument.
"TRADEMARKS" shall mean all of the following: (a) all trademarks, trade
names, corporate names, company names, business names, fictitious business
names, trade styles, service marks, logos, other business identifiers, prints
and labels on which any of the foregoing have appeared or appear, all
registrations and recordings thereof and all applications in connection
therewith, including, without limitation, registrations, recordings and
applications in the United States Patent and Trademark Office or in any similar
office or agency of the U.S., any state thereof or any other country or any
political subdivision thereof, including, without limitation, those described in
SCHEDULE 8 attached hereto; (b) all renewals thereof; (c) all income, royalties,
damages and payments now or hereafter relating to or payable under any of the
foregoing, including, without limitation, damages or payments for past or future
infringements of any of the foregoing; (e) the right to xxx for past, present
and future infringements of any of the foregoing; (f) all rights corresponding
to any of the foregoing throughout the world; and (g) all goodwill associated
with and symbolized by any of the foregoing; in each case, whether now owned or
hereafter acquired by any Borrower or its Subsidiaries.
"UCC" shall mean the Uniform Commercial Code as enacted in the State of
Illinois, as amended from time to time, provided, however, that: (a) to the
extent that the UCC is used to define any term herein, and such term is defined
differently in different Articles of the UCC, the definition of such term
contained in Article 9 of the UCC shall govern; and (b) if, by reason of
mandatory provisions of law, any or all of the attachment, perfection or
priority of, or remedies with respect to, the Lenders' security interest in any
Collateral is governed by the Uniform Commercial Code as enacted and in effect
in a jurisdiction other than the State of Illinois, the term "UCC" shall mean
the Uniform Commercial Code as enacted and in effect in such other jurisdiction
solely for purposes of the provisions thereof relating to such attachment,
perfection or priority of, or remedies with respect to, the Lenders' security
interest and for purposes of definitions related to such provisions.
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2. SECURITY INTEREST
2.1 SECURITY INTEREST. As security for the payment of all Indebtedness,
each Borrower hereby grants to Administrative Agent, for the benefit of the
Administrative Agent and the Lenders, a security interest in all of such
Borrower's assets, whether now owned or existing or hereafter acquired,
including, but not limited to, all of such Borrower's right, title and interest
in and to the following Property (collectively, the "COLLATERAL"):
(a) All Accounts;
(b) All Chattel Paper;
(c) All Commercial Tort Claims;
(d) All Deposit Accounts;
(e) All Money;
(f) All Documents;
(g) All Equipment and Fixtures;
(h) All General Intangibles;
(i) All Instruments;
(j) All Inventory;
(k) All Investment Property;
(l) All Letter of Credit Rights;
(m) All Intellectual Property; and
(n) All Proceeds (whether Money or Noncash Proceeds, including Insurance
Proceeds) and Products of all the foregoing.
2.2 BORROWERS REMAIN LIABLE. Notwithstanding anything contained to the
contrary herein, Borrowers shall remain liable under the contracts, agreements,
documents and instruments included in the Collateral to the extent set forth
therein and perform all of their duties and obligations thereunder and the
exercise by Lenders of any of their rights hereunder shall not release Borrowers
from any of their duties or obligations thereunder.
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3. REPRESENTATIONS AND WARRANTIES OF BORROWERS
Each Borrower represents and warrants, with respect to such Borrower's
Collateral, that:
3.1 TITLE TO COLLATERAL. Such Borrower has good and marketable title to all
of such Borrower's Collateral and none of such Collateral is subject to any
security interest, except for the security interest created pursuant to this
Agreement or the Permitted Liens.
3.2 AUTHORIZATION. Such Borrower has the right and power and is duly
authorized and empowered to enter into, execute, deliver and perform this
Agreement, has taken all necessary action to effectuate such Agreement and does
not and will not: (a) require any consent of any Governmental Authority or (b)
violate any provision of any indenture, contract, agreement or instrument to
which such Borrower is a party or subject or by which it is bound.
3.3 ACCOUNTS. All Collateral consisting of Accounts (a) represent bona fide
existing obligations of the Account Debtor evidencing unpaid amounts owed by an
Account Debtor in the ordinary course of business without defenses, offset or
counterclaim, except those arising in the ordinary course of business that would
not have a material adverse effect on such Borrower in the aggregate or for
which adequate reserve has been made and (b) such Borrower owns such Accounts
free and clear of any security interest other than the security interest created
by this Agreement or other Permitted Liens.
3.4 FINANCING STATEMENTS; PERFECTION. No financing statement, security
agreement or Lien instrument covering all or any part of the Collateral is on
file in any public office, except as may have been filed in favor of Lenders or
with respect to the Permitted Liens. Upon filing of financing statements in the
proper jurisdictions and the recordation of this Security Agreement with the
proper Governmental Authority in favor of Lenders, the security interest created
hereby will constitute a valid and perfected first priority Lien upon and
security interest in the Collateral to the extent that such filing or
recordation is sufficient under applicable law to perfect such Lien with respect
to the Collateral.
3.5 INTELLECTUAL PROPERTY.
(a) The information contained on the schedules attached hereto in
respect of such Borrower's Intellectual Property is materially true,
correct and complete.
(b) Such Borrower, to the knowledge of such Borrower, is the sole and
exclusive owner of the entire and unencumbered right, title and interest in
and to the Intellectual Property attributed to such Borrower free and clear
of any Liens, including, without limitation, any pledges, assignments,
licenses, user agreements and covenants by Borrower not to xxx third
Persons, other than Permitted Liens or the liens created hereby.
(c) No claim has been made alleging that the use of any of such
Intellectual Property violates or may violate the rights of any third
Person.
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(d) All such Intellectual Property listed or described on the
Schedules attached hereto as registered has been properly registered with
the proper Governmental Authority, whether with the United States Patent
and Trademark Office, United States Copyright Office or otherwise.
4. COVENANTS OF BORROWERS
Each Borrower covenants as follows:
4.1 MAINTENANCE OF TANGIBLE COLLATERAL. Such Borrower will maintain such
Borrower's tangible Collateral in good condition and repair. At the time of
attachment and perfection of the security interest granted pursuant hereto and
thereafter, all such tangible Collateral will be located and will be maintained
only at the locations set forth on Schedule 1 to the Credit Agreement. Except as
otherwise permitted herein or in the ordinary course of business, such Borrower
will not remove such Collateral from such locations unless, prior to any such
removal, such Borrower has given written notice to Administrative Agent of the
location or locations to which such Borrower desires to remove the Collateral
and Administrative Agent has given its written consent to such removal.
Administrative Agent's security interest attaches to all of such Collateral
wherever located and such Borrower's failure to inform Administrative Agent of
the location of any item or items of Collateral shall not impair Administrative
Agent's security interest therein.
4.2 DISPOSITION OR ENCUMBRANCE OF COLLATERAL. Such Borrower will not
encumber, sell or otherwise transfer or dispose of the Collateral without the
prior written consent of Administrative Agent except as provided in the Credit
Agreement. Until an Event of Default has occurred and is continuing, such
Borrower may sell Collateral subject to the limitations contained in the Credit
Agreement.
4.3 NOTATION ON CHATTEL PAPER. Upon Administrative Agent's request, such
Borrower will deliver to Administrative Agent the original of all of such
Borrower's Chattel Paper Collateral. Such Borrower will not execute any copies
of such Chattel Paper constituting part of the Collateral other than those which
are clearly marked as a copy. Administrative Agent may stamp any such Chattel
Paper with a legend reflecting Administrative Agent's security interest therein.
For purposes of the security interest granted pursuant to this Agreement,
Administrative Agent has been granted a direct security interest in all such
Chattel Paper constituting part of the Collateral and such Chattel Paper is not
claimed merely as Proceeds of Inventory.
4.4 INSTRUMENTS AS PROCEEDS; DEPOSIT ACCOUNTS. Such Borrower has granted to
the Administrative Agent a direct security interest in all Deposit Accounts
constituting part of the Collateral and such Deposit Accounts are not claimed
merely as Proceeds of other Collateral.
4.5 PROTECTION OF COLLATERAL. All expenses of protecting, storing,
warehousing, insuring, handling and shipping of such Borrower's Collateral, all
costs of keeping such Collateral free and clear of any Liens prohibited by this
Agreement, the Credit Agreement or the
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Ancillary Documents and of removing the same if they should arise, and any and
all excise, property, sales and use taxes imposed by any Governmental Authority
on any of such Collateral or in respect of the sale thereof, shall be borne and
paid by such Borrower and if such Borrower fails to promptly pay any thereof
when due, Administrative Agent may, at its option, but shall not be required to
pay the same whereupon the same shall constitute Indebtedness and shall bear
interest at the Default Rate specified in the Credit Agreement and shall be
secured by the security interest granted hereunder.
4.6 CHANGES TO NAME OF BORROWER OR STATE OF INCORPORATION. Such Borrower's
exact legal name, type of legal entity and state of incorporation or
organization are set forth in the Credit Agreement. Such Borrower will not
change its legal name or its state or incorporation or organization unless such
Borrower has given Administrative Agent 30 days' prior written notice to
Administrative Agent, Administrative Agent has given its written consent to such
change, and such Borrower has delivered to Administrative Agent acknowledgment
copies of financing statements filed where appropriate to continue the
perfection of Administrative Agent's security interest as a first priority
security interest in the Collateral. Such Borrower has not used any other name
or incorporated or organized elsewhere within the past five years. Neither such
Borrower nor, to such Borrower's knowledge, any predecessor in title to any of
such Borrower's Collateral has executed any financing statements or security
agreements presently effective as to the Collateral.
4.7 COMPLIANCE WITH LAWS. Such Borrower will not use all or any part of
such Borrower's Collateral, or knowingly permit such Collateral to be used, for
any unlawful purpose or in violation of any federal, state or municipal law.
4.8 COMMERCIAL TORT CLAIMS. Such Borrower shall promptly notify
Administrative Agent of any Commercial Tort Claim acquired by it not listed on
SCHEDULE 1 attached hereto and, unless otherwise consented to by the
Administrative Agent, Borrower shall promptly enter into a supplement to this
Agreement granting to the Lender a security interest in such Commercial Tort
Claim.
4.9 NOTICE OF DEFAULT. Immediately upon any officer of such Borrower
becoming aware of the existence of any Event of Default, such Borrower will give
notice to Administrative Agent that such Event of Default exists, stating the
nature thereof, the period of existence thereof, and what action such Borrower
proposes to take with respect thereto.
4.10 BOOKS AND RECORDS; ACCESS.
(a) Such Borrower will permit Administrative Agent and its
representatives to examine such Borrower's books and records with respect
to its Collateral and make extracts therefrom and copies thereof at any
time and from time to time, and such Borrower will furnish such information
and reports to Administrative Agent and its representatives regarding the
Collateral as Administrative Agent and its representatives may from time to
time request. Such Borrower will also permit Administrative Agent and its
representatives to inspect its Collateral at any time and from time to time
as Administrative Agent and its representatives may request.
11
(b) Administrative Agent shall have authority, at any time, to place,
or require such Borrower to place, upon such Borrower's books and records
relating to Accounts, Chattel Paper and other rights to payment covered by
the security interest granted hereby a notation or legend stating that such
Accounts, Chattel Paper and other rights to payment are subject to
Administrative Agent's security interest.
4.11 ADDITIONAL DOCUMENTATION; FURTHER ACTS. Such Borrower will execute
from time to time, and authorizes Administrative Agent to execute and/or file
from time to time as such Borrower's attorney-in-fact, such financing
statements, assignments, and other documents covering such Borrower's
Collateral, including Proceeds, as Administrative Agent may request, make any
proper filings and take any other actions as Lenders deem necessary in order to
create, evidence, perfect, maintain or continue its security interest in such
Collateral (including additional Collateral acquired by such Borrower after the
date hereof), including, without limitation, filing this Agreement and any
amendments thereto with the United States Copyright Office and the United States
Patent and Trademark Office, and such Borrower will pay the cost of filing the
same in all public offices in which Administrative Agent may deem filing to be
appropriate and will notify Administrative Agent promptly upon acquiring any
additional Collateral that may require an additional filing. Upon request, such
Borrower will deliver to Administrative Agent all Borrower's Documents, Chattel
Paper and Instruments constituting part of such Collateral. If such Borrower or
its Subsidiaries shall obtain rights to or become entitled to the benefit of any
Intellectual Property not identified herein, the provisions of this Agreement
shall automatically apply thereto and such Borrower shall undertake to modify or
update the schedules attached hereto identifying Intellectual Property to
include any such new Intellectual Property and hereby authorizes Administrative
Agent to modify or update the schedules attached hereto identifying Intellectual
Property to include any such new Intellectual Property in the event Borrower
fails to timely modify or update such schedules.
5. RIGHTS OF LENDERS
5.1 POWER OF ATTORNEY. Each Borrower appoints Administrative Agent, or any
other person whom Administrative Agent may from time to time designate, as
Borrower's attorney-in-fact with the power to, among other things: (a) endorse
such Borrower's name on any checks, notes, acceptances, drafts or other forms of
payment or security evidencing or relating to any of such Borrower's Collateral
that may come into Administrative Agent's possession; (b) sign Administrative
Agent's name on any invoice or xxxx of lading relating to any of such Borrower's
Collateral, on drafts against customers, on schedules and confirmatory
assignments of Accounts, Chattel Paper, Documents or other such Collateral, on
notices of assignment, financing statements under the UCC and other public
records, on verifications of accounts and on notices to customers; (c) notify
the post office authorities to change the address for delivery of such
Borrower's mail to an address designated by Administrative Agent; (d) receive
and open all mail addressed to such Borrower; (e) send requests for verification
of Accounts, Chattel Paper, Instruments or other such Collateral to customers;
and (f) do all things necessary to carry out this Agreement. Such Borrower
ratifies and approves all acts of the attorney taken within the scope of the
authority granted. Neither Administrative Agent nor the attorney will be liable
for
12
any acts of commission or omission nor for any error in judgment or mistake of
fact or law. This power, being coupled with an interest, is irrevocable so long
as any portion of the Indebtedness remains unpaid. Such Borrower waives
presentment and protest of all instruments and notice thereof, notice of default
and dishonor and all other notices to which such Borrower may otherwise be
entitled.
5.2 CONTROL. Such Borrower will cooperate with Administrative Agent in
obtaining control with respect to such Borrower's Collateral consisting of
Deposit Accounts, Investment Property, Letter of Credit Rights, and Electronic
Chattel Paper. Without limiting the foregoing, if such Borrower becomes a
beneficiary of a letter of credit, then such Borrower shall promptly notify the
Lender thereof and use reasonable efforts to enter into a tri-party agreement
with the Administrative Agent and the issuer with respect to such letter of
credit assigning the Letter of Credit Rights to the Administrative Agent, all in
form and substance reasonably satisfactory to the Administrative Agent.
5.3 COLLECTIONS. Except as otherwise provided herein, each Borrower shall
continue to collect, at its own expense, all amounts due or to become due to
such Borrower under the Accounts constituting part of such Borrower's Collateral
and all other such Collateral. In connection with such collections, each
Borrower may take (and, at Administrative Agent's direction given after the
occurrence and during the continuance of an Event of Default, shall take) such
action as such Borrower or Administrative Agent may deem necessary or advisable
to enforce collection of such Accounts and such other Collateral; provided,
however, that Administrative Agent shall have the right upon an Event of Default
and upon giving written notice to Borrowers of Administrative Agent's intention
to do so, to notify the Account Debtors under any such Accounts or obligors with
respect to such other Collateral of the assignment of such Accounts and such
other Collateral to Administrative Agent and to direct such Account Debtors or
obligors to make payment of all amounts due or to become due to Borrowers
thereunder directly to Administrative Agent and, upon such notification and at
the expense of Borrowers, to enforce collection of any such Accounts or other
Collateral, and to adjust, settle or compromise the amount or payment thereof in
the same manner and to the same extent as Borrowers might have done, but unless
and until Administrative Agent does so or gives Borrowers other instructions,
Borrowers shall make all collections for Administrative Agent.
5.4 LOCKBOX. In addition to its rights under Section 5.3 hereof,
Administrative Agent requires that Borrowers instruct all current and future
Account Debtors and obligors on other Collateral to make all payments directly
to the Lockbox controlled by Administrative Agent pursuant to Section 4.5 of the
Credit Agreement. All payments received in the Lockbox shall be transferred to a
special bank account (the "COLLATERAL ACCOUNT") maintained by Administrative
Agent for the benefit of Administrative Agent and Lenders subject to withdrawal
by Administrative Agent only. Each Borrower agrees to immediately deliver all
full and partial payments on any Collateral received by such Borrower to
Administrative Agent in their original form, except for endorsements where
necessary. Administrative Agent, at its sole discretion, may hold any
collections on the Collateral delivered to it or deposited in the Collateral
Account as cash collateral or may apply such collections to the payment of the
Indebtedness in such order as Administrative Agent may elect; provided, however,
that after an Event of Default has occurred and is continuing, Administrative
Agent shall apply all collections in accordance with
13
Section 7.4 hereof. Until such payments are so delivered to Administrative
Agent, such payments shall be held in trust by each Borrower for and as
Administrative Agent's property, and shall not be commingled with any funds of
such Borrower. Any application of any collection to the payment of any
Indebtedness is conditioned upon final payment of any check or other instrument.
In all events, no Borrower shall be able to withdraw any deposit from the Lock
Box or Collateral Account until the expiration of three (3) days following said
deposit.
6. DEFAULT.
6.1 EVENT OF DEFAULT. The occurrence of any Event of Default, as such term
is defined in the Credit Agreement, shall constitute an event of default
hereunder ("EVENT OF DEFAULT").
7. RIGHTS AND REMEDIES ON DEFAULT.
Upon the occurrence of an Event of Default, and at any time thereafter
until such Event of Default is cured to the satisfaction of Administrative
Agent, and in addition to the rights granted to Administrative Agent under
Sections 4 and 5 hereof or in the Credit Documents, Administrative Agent may
exercise any one or more of the following rights and remedies for the benefit of
Administrative Agent and Lenders:
7.1 ACCELERATION OF INDEBTEDNESS. Declare any and all Indebtedness to be
immediately due and payable, and the same shall thereupon become immediately due
and payable without further notice or demand.
7.2 COLLATERAL. Without demand or notice to any Borrower:
(a) collect, receive and give receipt for, compound, compromise,
settle and give acquittance for and prosecute and discontinue any suits or
proceedings in respect of any or all of the Collateral;
(b) Offset any deposits, including unmatured time deposits, then
maintained by Borrowers with Administrative Agent, whether or not then due,
against any indebtedness then owed by Borrowers to Administrative Agent
whether or not then due;
(c) Comply with any applicable state or federal law requirements in
connection with a disposition of the Collateral and compliance will not be
considered adversely to affect the commercial reasonableness of any sale of
the Collateral;
(d) With the assistance of Borrowers, enter upon and into and take
possession of all or such part or parts of the Collateral, including lands,
plants, buildings, machinery, equipment, and other property as may be
necessary or appropriate in the reasonable judgment of Administrative
Agent, to permit or enable Administrative Agent to store, lease, sell or
otherwise dispose of or collect all or any part of the Collateral, and use
and
14
operate said properties for such purposes and for such length of time as
Administrative Agent may deem necessary or appropriate for said purposes
without the payment of any compensation to Borrowers therefor;
(e) Sell, lease or otherwise transfer all or any part of the
Collateral without giving any warranties as to the Collateral which may
have been considered to adversely affect the commercial reasonableness of
any sale of the Collateral; and
(f) Take any other action which Administrative Agent may deem
reasonably necessary or desirable in order to realize on the Collateral,
including, without limitation, the power to perform any contract, to
endorse in the name of Borrowers any checks, drafts, notes, or other
instruments or documents received in payment of or on account of the
Collateral.
7.3 OTHER RIGHTS. Exercise any and all other rights and remedies available
to it by law or by agreement, including rights and remedies under the UCC as
adopted in the relevant jurisdiction or any other applicable law, or under the
Credit Agreement and, in connection therewith. Administrative Agent may require
Borrowers to assemble the Collateral and make it available to Administrative
Agent at a place to be designated by Administrative Agent, and any notice of
intended disposition of any of the Collateral required by law shall be deemed
reasonable if such notice is mailed or delivered to Borrowers at its address as
shown in Section 10.10 of the Credit Agreement at least 10 days before the date
of such disposition.
7.4 APPLICATION OF PROCEEDS. All proceeds of Collateral shall be applied in
accordance with the UCC, and such proceeds applied toward the Indebtedness shall
be applied in such order as provided in the Credit Agreement.
7.5 INTELLECTUAL PROPERTY. Upon the occurrence and during the continuance
of an Event of Default:
(a) Administrative Agent may, at any time and from time to time, upon
thirty (30) days' prior notice to Borrowers, license or, to the extent
permitted by an applicable license, sublicense, whether general, special or
otherwise, and whether on an exclusive or non-exclusive basis, any
Intellectual Property, throughout the world for such term or terms, on such
conditions, and in such manner, as Administrative Agent shall in its sole
discretion determine provided that any such license or sublicense shall
preserve or reserve the right of such Borrower to use such Intellectual
Property, royalty-free, after such Event of Default is cured or waived, or
is otherwise discontinued;
(b) Administrative Agent may (without assuming any obligations or
liability thereunder), at any time exercise and enforce (and shall have the
exclusive right to enforce) against any licensor, licensee or sublicensee
all rights and remedies of Borrowers in, to and under any one or more
Patent License, Trademark License, Copyright License or other agreements
with respect to any Patent, Trademark or Copyright and take or refrain from
taking any action under any such Patent License, Trademark License,
Copyright License or other agreement, and Borrowers hereby release
15
Administrative Agent from, and agree to hold Administrative Agent free and
harmless from and against, any claims arising out of, any action taken or
omitted to be taken with respect to any such license or agreement, except
in cases of gross negligence or willful misconduct;
(c) Any and all payments received by Administrative Agent under or in
respect of any Intellectual Property (whether from Borrowers or otherwise),
or received by Administrative Agent by virtue of agreement, shall be
applied to the Indebtedness in accordance with Section 7.5 hereof;
(d) Administrative Agent may exercise in respect of the Intellectual
Property, in addition to other rights and remedies provided for herein or
otherwise available to it, all the rights and remedies of a secured party
on default under the UCC; and
(e) In order to implement the sale, lease, assignment, license,
sublicense or other disposition of any of the Intellectual Property
pursuant to this Section 7.8, Administrative Agent may, at any time,
execute and deliver on behalf of Borrower one or more instruments of
assignment of any Intellectual Property (or any application or registration
thereof), in form suitable for filing, recording or registration in any
country. Borrower agrees to pay when due all reasonable costs incurred in
any such transfer of the Intellectual Property, including any taxes, fees
and reasonable attorneys' fees.
8. MISCELLANEOUS
8.1 NO LIABILITY ON COLLATERAL. It is understood that Administrative Agent
does not in any way assume any of Borrowers' obligations under any of the
Collateral and Borrowers hereby agree to indemnify Administrative Agent against
all liability resulting from Borrowers' obligations with respect to the
Collateral, except for any such liabilities arising on account of Administrative
Agent's gross negligence or willful misconduct.
8.2 NO WAIVER. Administrative Agent shall not be deemed to have waived any
of its rights hereunder or under any other agreement, instrument or paper signed
by Borrowers unless such waiver be in writing and signed by Administrative
Agent. No delay or omission on the part of Administrative Agent in exercising
any right shall operate as a waiver of such right or any other right. A waiver
on any one occasion shall not be construed as a bar to or waiver of any right or
remedy on any future occasion.
8.3 REMEDIES CUMULATIVE. All rights and remedies of Administrative Agent
shall be cumulative and may be exercised singularly or concurrently, at
Administrative Agent's option, and the exercise or enforcement of any one such
right or remedy shall not bar or be a condition to the exercise or enforcement
of any other.
8.4 GOVERNING LAW. This Agreement shall be construed and enforced in
accordance with, and the rights of the parties shall be governed by, the laws of
the State of Illinois, except to the extent that the perfection of the security
interest hereunder, or the enforcement of any
16
remedies hereunder, with respect to any particular Collateral shall be governed
by the laws of a jurisdiction other than the State of Illinois.
8.5 EXPENSES. Borrowers agree to pay the reasonable attorneys' fees and
legal expenses incurred by Administrative Agent and the other Lenders in the
exercise of any right or remedy available to it under this Agreement, whether or
not suit is commenced, including, without limitation, attorneys' fees and legal
expenses incurred in connection with any appeal of a lower court's order or
judgment.
8.6 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and inure
to the benefit of the successors and assigns of Borrowers and Administrative
Agent and the other Lenders.
8.7 SEVERABILITY. Wherever possible, each provision of this Agreement shall
be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement shall be prohibited by or invalid under
such law, such provision shall be ineffective to the extent of such prohibition
or invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Agreement.
8.8 NO OBLIGATION TO PURSUE OTHERS. Administrative Agent has no obligation
to attempt to satisfy the Indebtedness by collecting payments or Property from
any other person liable for them and Administrative Agent may release, modify or
waive any Collateral provided by any other person to secure any of the
Indebtedness, all without affecting Administrative Agent's rights against
Borrowers. Borrowers waive any right they may have to require Administrative
Agent to pursue any third person for any of the Indebtedness.
8.9 TERMINATION AND RELEASE. Upon termination of the Revolving Credit
Facility and payment of all the Indebtedness in full, this Agreement shall
terminate, and the Administrative Agent, at the request and expense of
Borrowers, will (i) promptly execute and deliver to Borrowers the proper
instruments acknowledging the termination of this Agreement, duly assign,
transfer and deliver to Borrowers (without recourse and without any
representation or warranty of any kind) such of the Collateral as may be in the
possession of the Administrative Agent and has not theretofore been disposed of
or otherwise applied or released and (iii) record such termination in the United
States Patent and Trademark Office, the United States Copyright Office, or any
similar office or governmental agency, subject to any disposition thereof which
may have been made by the Administrative Agent pursuant to this Agreement.
[signature pages attached]
17
IN WITNESS WHEREOF, the undersigned has executed this Agreement as of the
date and year first above written.
BORROWERS:
INFORMATION RESOURCES, INC.
a Delaware corporation
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
000 XXXXXXXX XX. #0
a Delaware corporation
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
IRI PUERTO RICO, INC.
a Delaware corporation
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
IRI VENEZUELA HOLDINGS, INC.
a Delaware corporation
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
IRI GUATEMALA HOLDINGS, INC.
a Delaware corporation
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
18
IRI GREEK HOLDINGS, INC.
a Delaware corporation
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
IRI FRENCH HOLDINGS, INC.
a Delaware corporation
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
IRI ITALY HOLDINGS, INC.
a Delaware corporation
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
INFOSCAN ITALY HOLDINGS, INC.
a Delaware corporation
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
SHOPPERS HOTLINE, INC.
a Delaware corporation
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
NORTH CLINTON CORPORATION
an Illinois corporation
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
19
ADMINISTRATIVE AGENT AND LENDER:
-------------------------------
LASALLE BANK NATIONAL ASSOCIATION,
as Administrative Agent for Lenders
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
20
