WAIVER AND THIRD AMENDMENT TO
AMENDED AND RESTATED CREDIT FACILITY AGREEMENT
This WAIVER AND THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT FACILITY
AGREEMENT (this "Amendment") is entered into as of the 17th day of April, 2001
(the "Effective Date"), by and among LaSalle Bank National Association, a
national banking association (f/k/a LaSalle National Bank), as Administrative
Agent for the Lenders described below (in such capacity, the "Administrative
Agent") and as Issuing Bank (the "Issuing Bank"), the Lenders described below
and CCC Information Services Inc., a Delaware corporation ("Borrower").
W I T N E S S E T H:
WHEREAS, Administrative Agent, the Issuing Bank, the Lenders parties
thereto and Borrower entered into that certain Amended and Restated Credit
Facility Agreement dated as of October 29, 1998, as amended by that certain
Waiver and Amendment to Amended and Restated Credit Facility Agreement dated as
of October 20, 2000 and as further amended by that certain Second Waiver and
Amendment to Amended and Restated Credit Facility Agreement dated as of February
15, 2001 (as may be further amended, supplemented or otherwise modified, the
"Credit Agreement"), and now desire to amend such Credit Agreement pursuant to
this Amendment to, among other things, (i) reduce the Line of Credit Commitment
and L/C Commitment, (ii) reduce the Line of Credit Maturity Date, (iii) provide
for certain mandatory prepayments and commitment reductions, (iv) reset certain
financial covenants and change certain of the Borrower's reporting requirements,
(v) provide for a consultant to review matters pertaining to the business and
properties of Borrower and its Subsidiaries, (vi) provide for additional
Collateral and other credit enhancements, (vii) provide for the infusion of
additional equity capital, and (viii) amend certain covenants;
WHEREAS, the Borrower has requested the Lenders to waive certain Events
of Default under certain financial covenants; and
WHEREAS, the Borrower and the Administrative Agent, Issuing Bank and
Lenders have agreed to enter into this Amendment on the terms and subject to the
conditions hereafter set forth;
NOW, THEREFORE, for and in consideration of the waiver of certain
Events of Default under the Credit Agreement and the premises and mutual
agreements herein contained and for the purposes of setting forth the terms and
conditions of this Amendment, the parties, intending to be bound, hereby agree
as follows:
1. INCORPORATION OF THE AGREEMENT. All capitalized terms which are not
defined hereunder shall have the same meanings as set forth in the Credit
Agreement. To the extent any terms and provisions of the Credit Agreement are
inconsistent with the amendments set forth in Section 2 below, such terms and
provisions shall be deemed superseded hereby. Except as specifically set forth
herein, the Credit Agreement shall remain in full force and effect and its
provisions shall be binding on the parties hereto.
2. AMENDMENT OF THE AGREEMENT. Subject to the terms and conditions
contained herein, on and after the date of this Amendment, the parties hereto
agree as follows:
(a) Schedule A to the Credit Agreement is hereby deleted in
its entirety and replaced by the revised Schedule A attached hereto. All
references to Schedule A throughout the Credit Agreement shall be references to
revised Schedule A attached hereto.
(b) Schedule 5.7(e) to the Credit Agreement is hereby deleted
in its entirety and replaced by the revised Schedule5.7(e) attached hereto. All
references to Schedule 5.7(e) throughout the Credit Agreement shall be
references to revised Schedule 5.7(e) attached hereto.
(c) Schedule 5.7(f) to the Credit Agreement is hereby deleted
in its entirety and replaced by the revised Schedule 5.7(f) attached hereto. All
references to Schedule 5.7(f) throughout the Credit Agreement shall be
references to revised Schedule 5.7(f) attached hereto.
(d) Exhibit 1.4.1 to the Credit Agreement is hereby amended
and replaced by revised Exhibit 1.4.1 attached hereto. All references to Exhibit
1.4.1 throughout the Credit Agreement shall be references to revised Exhibit
1.4.1 attached hereto.
(e) Exhibit 4.2 to the Credit Agreement is hereby amended and
replaced by revised Exhibit 4.2 attached hereto. All references to Exhibit 4.2
throughout the Credit Agreement shall be references to revised Exhibit 4.2
attached hereto.
(f) Section 1.1.2. of the Credit Agreement is hereby amended
and restated in its entirety to read as follows:
"1.1.2. Facility Maturity. The Line of Credit Facility will
mature on September 30, 2002 (as may be extended from time to
time in Lenders' sole and absolute discretion or as may be
earlier terminated pursuant to the terms hereof, "Line of
Credit Maturity Date")."
(g) Section 1.1.4. of the Credit Agreement is hereby amended
by deleting the third sentence of such Section in its entirety and replacing
such sentence with the following:
"The aggregate stated principal amount of the Line of Credit
Notes will be $55,000,000; provided, however, that the maximum
liability under such Line of Credit Notes will be limited at
all times to the actual amount of indebtedness (including
principal, interest, fees and expenses) then outstanding under
the Line of Credit Facility."
(h) Section 1.1.6.1 of the Credit Agreement is hereby amended
and restated in its entirety to read as follows:
"1.1.6.1. Periodic Interest Payments. Interest accrued under
the Line of Credit Facility will be due and payable monthly in
arrears on the first Business Day following the end of each
calendar month
2
with respect to any Portion consisting of Prime
Rate Advances and on the last day of each Interest Period for
any Portion consisting of Adjusted LIBO Rate Advances;
PROVIDED, HOWEVER, that if any Interest Period for an Adjusted
LIBO Rate Advance exceeds one month, interest on such Adjusted
LIBO Rate Advance shall also be payable on each consecutive
one-month anniversary of the first day of such Interest Period
occurring prior to the last day of such Interest Period."
(i) Section 1.1.6.2.b. of the Credit Agreement is hereby
amended and restated in its entirety to read as follows:
"1.1.6.2.b. MANDATORY REDUCTION. On the date of any Mandatory
Prepayment Event (other than all issuances of Equity
Securities by Guarantor and all issuances of Funded Debt by
Guarantor pursuant to the Supplemental Capital Contribution or
the Capricorn Contribution) the Line of Credit Commitment
shall be permanently reduced by an amount equal to the
Designated Proceeds of such Mandatory Prepayment Event;
provided, however, if the Designated Proceeds in respect of
the Supplemental Capital Contribution exceed $25,000,000 in
the aggregate, then the Line of Credit Commitment shall be
permanently reduced by an amount equal to such excess. The
Line of Credit Commitment shall be further reduced by the
amount of (i) $1,000,000 per month on each of June 30, 2001,
July 31, 2001 and August 31, 2001 to the extent the LOI is not
received by the Administrative Agent in accordance with
Section 4.16(b) prior to the applicable date, PROVIDED THAT no
such reduction shall occur after the date the LOI is received
by the Administrative Agent, and (ii) $3,000,000 on September
30, 2001 and if the Net Cash Proceeds from the Supplemental
Capital Contribution have not been contributed to the equity
capital of the Borrower in accordance with Section 4.16(b) by
September 30, 2001, by $3,000,000 per month on the last day of
each month occurring after September 30, 2001, until the Net
Cash Proceeds from the Supplemental Capital Contribution have
been contributed to the equity capital of the Borrower in
accordance with Section 4.16(b), PROVIDED THAT at any time
after the Net Cash Proceeds from the Supplemental Capital
Contribution are contributed to the equity capital of the
Borrower in accordance with Section 4.16(b), the Line of
Credit Commitment shall instead by reduced by $3,000,000 per
quarter, commencing on the later of (1) December 31, 2001 or
(2) the last day of the fiscal quarter in which such
contribution to Borrower has been made."
(j) Section 1.1.6.5.c. of the Credit Agreement is hereby
amended and restated in its entirety to read as follows:
3
"1.1.6.5.c. OTHER MANDATORY PREPAYMENTS. Borrower shall make a
prepayment to Administrative Agent for the benefit of Lenders
(without necessity of notice or demand by Administrative
Agent) upon the occurrence of any of the following (each a
"Mandatory Prepayment Event") at the following times and in
the following amounts (such applicable amounts being referred
to as "Designated Proceeds"): (i) within one Business Day of
the receipt by the Borrower or any of its Subsidiaries of any
Net Cash Proceeds from any Asset Sale, in an amount equal to
100% of such Net Cash Proceeds; (ii) within one Business Day
of the receipt by Guarantor, Borrower or any of their
respective Subsidiaries, any Net Cash Proceeds from any
issuance of Equity Securities of Guarantor, Borrower or any of
their respective Subsidiaries (excluding (x) any issuance of
shares of capital stock pursuant to any employee or director
stock option program, benefit plan or compensation program and
(y) any issuance by a Subsidiary to the Borrower or another
Restricted Subsidiary of Borrower), in an amount equal to 100%
of such Net Cash Proceeds; and (iii) within one Business Day
of the receipt by Guarantor, Borrower or any of their
respective Subsidiaries of any Net Cash Proceeds from any
issuance of Funded Debt by Borrower, Guarantor or any of their
respective Subsidiaries (excluding Funded Debt which is
Permitted Indebtedness under clauses a through h of Section
5.2), in an amount equal to 100% of such Net Cash Proceeds.
Any prepayment required to be made pursuant to this Section
1.1.6.5.c. shall be applied pursuant to Section 1.5.3 and,
except as otherwise provided in Section 1.1.6.2.b., will
permanently reduce the Line of Credit Commitment. It being
agreed that any prepayment made with the Net Cash Proceeds of
(A) the Supplemental Capital Contribution up to $25,000,000 or
(B) the Capricorn Contribution, will not permanently reduce
the Line of Credit Commitment"
(k) Section 1.2.7 of the Credit Agreement is hereby amended by
deleting the first sentence of such Section and replacing such sentence with the
following:
"The Borrower shall pay to the Administrative Agent for the
account of each of the Lenders a letter of credit fee ("Letter
of Credit Fee") with respect to the outstanding Letters of
Credit equal to a per annum rate equal to the applicable Rate
Margin for Adjusted LIBO Rate Advances multiplied by the
average daily maximum amount available to be drawn thereunder,
computed on a quarterly basis in arrears on the first Business
Day following the end of each calendar quarter based on the
Letters of Credit outstanding during such quarter as
calculated by the Administrative Agent."
4
(l) Section 1.3.1 of the Credit Agreement is hereby amended
and restated in its entirety as follows:
"1.3.1. COMMITMENTS. The aggregate amount of all Commitments
of all of the Lenders as of the date of the Amendment - Third
is $55,000,000, as may be reduced from time to time pursuant
to Section 1.1.6.2."
(m) Section 1.4.1 of the Credit Agreement is hereby amended by
deleting the second sentence of such Section and replacing it with the
following:
"Each Advance Request must (i) be substantially in the form of
Exhibit 1.4.1 hereto or such other form as Administrative
Agent from time to time may reasonably request, (ii) provide
all of the certifications and information required by Exhibit
1.4.1 and (iii) be executed by the President, Chief Financial
Officer, the Treasurer, the Senior Vice President, Corporate
Finance or such other senior officer of Borrower as is
acceptable to Administrative Agent."
(n) Section 1.5.3 of the Credit Agreement is hereby amended
and restated in its entirety as follows:
"1.5.3. APPLICATION OF PAYMENTS. Unless a Default or Event of
Default exists and unless the Borrower otherwise directs, all
payments and other funds received by Administrative Agent
hereunder (for the benefit of Lenders) will be applied by
Administrative Agent and each Lender in the following order:
(a) first to the payment of any fees and charges due under the
Loan Documents, and (b) then to any obligations for the
payment of expenses due under the Loan Documents, and (c) then
to the payment of interest due and owing hereunder, and (d)
then to principal outstanding under the Line of Credit
Facility, and (e) then to any other interest accrued but not
yet owing hereunder, and (f) then to any other indebtedness of
Borrower or other Obligor then due and owing to Administrative
Agent, any Lender or Issuing Bank, and (g) then to any Hedging
Obligations, cash management liabilities or similar
liabilities of the Borrower or any Subsidiary to the
Administrative Agent, any Lender or any Affiliate of any
Lender."
(o) Section 1.6 of the Credit Agreement is amended and
restated in its entirety to read as follows:
"1.6 Collateral Security. Guarantor and Administrative Agent
entered into Pledge Agreement, dated as of October 29, 1998,
pursuant to which Guarantor pledged all of the capital stock
of Borrower to Administrative Agent, for its benefit and the
benefit of
5
the Lenders. In connection with the Amendment-Second, the
Borrower and Administrative Agent entered into a Security
Agreement dated as of February 15, 2001, pursuant to
which Borrower granted to Administrative Agent, for its
benefit and the benefit of the Lenders, a Lien on
substantially all of Borrower's assets, and certain other
Collateral Security Documents more specifically described
in such amendment. In connection with the
Amendment-Third, the Borrower executed or agreed to
execute certain other Collateral Security Documents for
the benefit of the Administrative Agent and the Lenders
more specifically described in the such amendment.
Borrower hereby ratifies and confirms all such Loan
Documents."
(p) Section 2.2.1.3 of the Credit Agreement is amended and
restated in its entirety as follows:
"2.2.1.3. NO MATERIAL CHANGE. There must not have been any
Material Adverse Change between December 31, 1999 and such
Settlement Date."
(q) Section 2.2.3 of the Credit Agreement is amended and
restated in its entirety to read as follows:
"FINANCIAL COVENANTS. As of such Settlement Date, Borrower
must be in compliance with the financial ratios and covenants
under Section 4.1 calculated as of the date of the most recent
Periodic Compliance Certificate delivered in accordance with
Section 4.2, giving effect to the proposed Advance."
(r) Section 4.1. of the Credit Agreement is hereby amended and
restated in its entirety as follows:
"4.1. FINANCIAL COVENANTS AND RATIOS. As of the end of each
month, Borrower will satisfy and comply with each of the
following financial ratios and characteristics, each of which
will be determined using GAAP consistently applied, except as
otherwise expressly provided:
4.1.1. TOTAL CHARGE COVERAGE RATIO. A Total Charge
Coverage Ratio of not less than 1.25-to -1.0.
4.1.2. CASH FLOW LEVERAGE RATIO. A Cash Flow Leverage
Ratio of not more than 1.50-to-1.0.
4.1.3. MINIMUM ROLLING 3-MONTH CASH FLOW. A Minimum Rolling
3-Month Cash Flow of not less than the following amounts for
the following periods (for negative amounts "minimum" means a
negative number not greater than):
6
-------------------- -----------------
May 31, 2001 ($1,100,000)
-------------------- -----------------
June 30, 2001 ($200,000)
-------------------- -----------------
July 31, 2001 $1,100,000
-------------------- -----------------
August 31, 2001 $2,600,000
-------------------- -----------------
September 30, 2001 $4,700,000
-------------------- -----------------
October 31, 2001 $5,500,000
-------------------- -----------------
November 30, 2001 $6,300,000
-------------------- -----------------
December 31, 2001 $7,600,000
-------------------- -----------------
Borrower and the Required Lenders will use all
commercially reasonable efforts to set the Minimum
Rolling 3-Month Cash Flow levels for 2002 within 30
days after Borrower's delivery of the Projections for
the year ended December 31, 2002 (which shall be
delivered no later than December 30, 2001 pursuant to
Section 4.3.1). In event that the Borrower and the
Required Lenders cannot agree to the revised levels
within such 30 day period, the Required Lenders will
set the levels, provided that in setting such revised
levels, the Required Lenders shall use the same
methodology as was used in setting such levels in
Amendment - Third, except that such levels shall be
based on the Borrower's reasonable Projections for
the year ended December 31, 2002.
4.1.4. MINIMUM NET WORTH. Guarantor and its Subsidiaries (on a
consolidated basis) shall have minimum net worth (calculated
in accordance with GAAP) as of such date of not less than the
sum of (i) $5,000,000 (which includes the Subordinated
Indebtedness evidenced by the Capricorn Notes), plus (ii) 90%
of the aggregate amount of Subordinated Indebtedness as of
such date (other than the Subordinated Indebtedness evidenced
by the Capricorn Notes and inter-company indebtedness) plus
(iii) 90% of the aggregate amount of Designated Proceeds from
any issuance of Equity Securities by Guarantor, Borrower or
any of their respective Subsidiaries occurring after the
closing of the Amendment - Third (excluding the Capricorn
Contribution); PROVIDED, that in calculating Minimum Net Worth
as of any date, any non-cash write-ups and write-downs of any
Investment of any of the Guarantor, Borrower or any of their
respective Subsidiaries (on a
7
consolidated basis), occurring after the closing of the
Amendment - Third, shall be excluded from such calculation.
(s) Section 4.2 of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
"4.2 PERIODIC FINANCIAL STATEMENTS.
4.2.1. MONTHLY FINANCIAL STATEMENTS. Within twenty (20)
calendar days of the end of each month, Borrower must prepare
and deliver to each Lender and Administrative Agent unaudited
monthly consolidated and consolidating financial statements
for each of Borrower and Guarantor (and their respective
Subsidiaries). Such financial statements must include a
balance sheet, an income statement, and a cash flow statement
(with appropriate external notes and schedules, if prepared).
Such financial statements must be prepared in accordance with
GAAP consistently applied (subject to quarterly and year end
adjustments and except as approved by Administrative Agent in
its sole and absolute discretion). Together with the monthly
financial statements, each Lender and Administrative Agent
must also receive (i) a certificate (in the form attached as
Exhibit 4.2) executed by the President, the Chief Financial
Officer, the Treasurer, the Senior Vice President, Corporate
Finance or such other senior executive officer of Borrower as
is acceptable to Administrative Agent (a) stating that the
financial statements fairly present the financial condition,
results of operations and cash flows of Guarantor and Borrower
(and their respective Subsidiaries), as applicable, as of the
date thereof and for the periods covered thereby (subject to
quarterly and year end adjustments), and (b) providing a
reconciled calculation demonstrating compliance with each
financial covenant and ratio under Section 4.1 hereof and the
covenants contained in Sections 5.13, 5.17 and 5.18 (using the
form attached as Exhibit 4.2 hereto), and (c) calculating, as
of the end of such fiscal period, the then-current amount of
the Available Credit Portion (using the form attached as
Exhibit 4.2 hereto) and (d) certifying the amount of any
Subordinated Indebtedness paid during such fiscal period and
(e) a description (by amount and payee) of all outstanding
Funded Debt as at the end of such fiscal period and (f)
certifying that as of the date of such certificate there is
not any existing Default or Event of Default or, if such
Default or Event of Default exists, specifying the nature
thereof, and (ii) a comparison of such financial statements
with the Projections for such period of the current fiscal
year and a comparison of such financial statements with the
corresponding period of the previous fiscal year. Borrower
shall attach to Exhibit 4.2 monthly operating reports
(including, with
8
respect to the Drive Logic division of Borrower) in form
and substance reasonably acceptable to the Administrative
Agent, which allow the Lenders to track compliance with
each financial covenant and ratio under Section 4.1 and
compliance with the covenants contained in Section 5.13,
5.17 and 5.18, certified (in the form of Exhibit 4.2) as
being prepared in accordance with GAAP (except as
otherwise required) and accurate in all material respects
by Borrower's Chief Financial Officer, the Treasurer, the
Senior Vice President, Corporate Finance or such other
senior executive officer of CCC as is acceptable to
Administrative Agent.
4.2.2 QUARTERLY FINANCIAL STATEMENTS. Within forty-five (45)
calendar days of the end of each of the first three fiscal
quarters, Borrower must prepare and deliver to each Lender and
Administrative Agent unaudited quarterly consolidated and
consolidating financial statements for each of Borrower and
Guarantor (and their respective Subsidiaries). Such financial
statements must include, without limitation, a balance sheet
and an income statement, a cash flow statement and a
reconciliation of consolidated net worth and capital accounts
(with appropriate external notes and schedules, if prepared).
Such financial statements must be prepared in accordance with
GAAP consistently applied (subject to normal year-end
adjustments and except as otherwise approved by Administrative
Agent in its sole and absolute discretion). Together with the
quarterly financial statements, each Lender and Administrative
Agent must also receive (i) a certificate (in the form
attached as Exhibit 4.2) executed by the President, the Chief
Financial Officer, the Treasurer, the Senior Vice President,
Corporate Finance or such other senior executive officer of
CCC as is acceptable to Administrative Agent (a) stating that
the financial statements fairly present the financial
condition, results of operations and cash flows of Guarantor
and Borrower (and their respective Subsidiaries), as
applicable, as of the date thereof and for the periods covered
thereby (subject to year end adjustments), and (b) providing a
reconciled calculation demonstrating compliance with each
financial covenant and ratio under Section 4.1 hereof and the
covenants contained in Sections 5.13, 5.17 and 5.18 (using the
form attached as Exhibit 4.2 hereto), and (c) calculating, as
of the end of such fiscal period, the then-current amount of
the Available Credit Portion (using the form of Exhibit 4.2)
and (d) certifying the amount of any Subordinated Indebtedness
paid during such fiscal period and (e) a description (by
amount and payee) of all outstanding Funded Debt as at the end
of such fiscal period and (f) certifying that as of the date
of such certificate there is not any existing Default or Event
of Default or, if such Default or Event of Default exists,
specifying the nature thereof, and (ii) a comparison
9
of such financial statements with the Projections for
such period of the current fiscal year and a comparison
of such financial statements with the corresponding
period of the previous fiscal year. Borrower shall attach
to Exhibit 4.2 a comparison by business segment of the
actual performance for such period with the Projections
for such period, and a comparison with Borrower's most
recent projections updated based on actual performance,
certified (in the form of Exhibit 4.2) as being prepared
in accordance with GAAP (except as otherwise required)
and accurate in all material respects by Borrower's Chief
Financial Officer, the Treasurer, the Senior Vice
President, Corporate Finance or such other senior
executive officer of CCC as is acceptable to
Administrative Agent.
4.2.3 ANNUAL FINANCIAL STATEMENTS. Within ninety (90) calendar
days after the close of each fiscal year, Borrower must
prepare and deliver to each Lender and Administrative Agent
(i) a complete set of audited annual consolidated financial
statements of each of the Borrower and the Guarantor (and
their respective Subsidiaries) (with accompanying notes and
consolidating schedules), and (ii) unaudited consolidating
financial statements for each of Borrower and Guarantor (and
their respective Subsidiaries). Such financial statements (a)
must include the types of financial statements and information
required on a quarterly basis under this Section 4.2, and (b)
must be prepared in accordance with GAAP consistently applied,
and (c) as to the consolidated financial statements, must be
certified without qualification by an independent certified
public accounting firm satisfactory to Administrative Agent.
Together with the annual financial statements, each Lender and
Administrative Agent must also receive (A) all related
management letters prepared by such accountants and an audit
report or opinion signed by such accountants pursuant to a
reliance letter delivered to such accountants for the benefit
of the Lenders reasonably satisfactory to the Administrative
Agent stating that the financial statements fairly present the
consolidated financial condition, results of operations and
cash flows of the Borrower and the Guarantor (and their
respective Subsidiaries), as the case may be, as of the date
thereof and for the periods covered, (B) a certificate (in the
form attached as Exhibit 4.2) executed by the President, the
Chief Financial Officer, the Treasurer, the Senior Vice
President, Corporate Finance or such other senior executive
officer of CCC as is acceptable to Administrative Agent (a)
stating that the financial statements fairly present the
financial condition, results of operations and cash flows of
Guarantor and Borrower (and their respective Subsidiaries), as
the case may be, as of the date thereof and the for the
periods covered thereby (subject to year end
10
adjustments), and (b) providing a reconciled calculation
demonstrating compliance with each financial covenant and
ratio under Section 4.1 hereof and the covenants
contained in Sections 5.13, 5.17 and 5.18 (using the form
attached as Exhibit 4.2 hereto), and (c) calculating, as
of the end of such fiscal period, the then-current amount
of the Available Credit Portion (using the form attached
as Exhibit 4.2, and (d) certifying the amount of any
Subordinated Indebtedness paid during such fiscal period
and (e) a description (by amount and payee) of all
outstanding Funded Debt as at the end of such fiscal
period and (f) certifying that as of the date of such
certificate there is not any existing Default or Event of
Default or, if such Default or Event of Default exists,
specifying the nature thereof, and (C) a comparison of
such financial statements with the Projections for such
period of the current fiscal year and a comparison of
such financial statements with the corresponding period
of the previous fiscal year."
(t) Section 4.3.1 of the Credit Agreement is amended and
restated in its entirety to read as follows:
"4.3.1 PROJECTIONS. On or before the 15th day after the Board
of Directors shall review and approve the same, but in any
case not later than December 30 of each year commencing with
the fiscal year ending December 31, 2001, Borrower must
deliver to each Lender and Administrative Agent consolidated
and consolidating projected balance sheets, statements of
income and expenses, and statements of cash flow, in the same
format as used for the monthly reporting required by Section
4.2.1 hereof, for each of the Guarantor and Borrower (and
their respective Subsidiaries) for the immediately succeeding
year (the "Projections"). The Projections shall be accompanied
by a certificate of the President, the Chief Financial
Officer, the Treasurer, the Senior Vice President of Corporate
Finance or such other senior executive officer of CCC as is
acceptable to Administrative Agent to the effect that (i) such
Projections were prepared by the Borrower in good faith, (ii)
the Projections provided by the Borrower were based on good
faith estimates and assumptions believed by the Borrower to be
reasonable as of the date such Projections were furnished,
provided that actual results during the periods covered
thereby may differ from projected or forecasted results and
(iii) such Projections have been prepared in accordance with
such assumptions; PROVIDED, that with respect to Projections
for the year ended December 31, 2001, the Borrower shall be
deemed to have satisfied its obligations under this Section
4.3.1 if such delivery is made on or before the date of the
Amendment - Third."
11
(u) Section 4.3 of the Credit Agreement is amended by adding
the following as Section 4.3.4:
"4.3.4 WEEKLY CASH FLOW. Within three (3) Business Days
following the end of each calendar week, Borrower must deliver
to each Lender and Administrative Agent consolidated cash flow
forecasts for Borrower and its Subsidiaries, in form and
substance acceptable to Administrative Agent, for the week the
report is delivered and the following consecutive twelve (12)
calendar weeks."
(v) Section 4.3 of the Credit Agreement is amended by adding
the following as Section 4.3.5 to such Section:
"4.3.5. PRO FORMA STATEMENTS. Borrower must deliver to each
Lender and the Administrative Agent, at least 10 Business Days
prior to the sale of (i) any Subsidiary, (ii) all or
substantially all of the assets of any Subsidiary or division
of Borrower or any Subsidiary, or (iii) any other Asset Sale
for which consent of the Required Lenders is required
hereunder, PRO FORMA financial statements (including balance
sheet, income statement and cash flow statement), as at the
proposed date of such disposition, for such Subsidiary,
division or assets and consolidated financial statements
(including balance sheet, income statement and cash flow
statement) for Borrower and its Subsidiaries after giving
effect to such proposed disposition."
(w) Section 4.8.1 of the Credit Agreement is amended by adding
the following after the last sentence of such Section:
"The Borrower shall cause each issuer of a property or
casualty insurance policy to provide the Administrative Agent
with an endorsement (i) showing loss payable to the
Administrative Agent as lender's loss payee with respect to
each policy of property or casualty insurance and naming the
Administrative Agent and each Lender as an additional insured
with respect to each policy of insurance for liability for
personal injury or property damage, (ii) providing that 30
days' notice will be given to the Administrative Agent prior
to any cancellation of such policy and (iii) reasonably
acceptable in all other respects to the Administrative Agent.
UNLESS THE BORROWER PROVIDES THE ADMINISTRATIVE AGENT WITH
EVIDENCE OF THE INSURANCE COVERAGE REQUIRED BY THIS AGREEMENT,
THE ADMINISTRATIVE AGENT MAY PURCHASE INSURANCE AT THE
BORROWER'S EXPENSE TO PROTECT THE ADMINISTRATIVE AGENT'S AND
THE
12
LENDERS' INTERESTS IN THE COLLATERAL. THIS INSURANCE MAY,
BUT NEED NOT, PROTECT THE BORROWER'S INTERESTS. THE COVERAGE
THAT THE ADMINISTRATIVE AGENT PURCHASES MAY NOT PAY ANY CLAIM
THAT IS MADE AGAINST THE BORROWER IN CONNECTION WITH THE
COLLATERAL. THE BORROWER MAY LATER CANCEL ANY INSURANCE
PURCHASED BY THE ADMINISTRATIVE AGENT, BUT ONLY AFTER
PROVIDING THE ADMINISTRATIVE AGENT WITH EVIDENCE THAT THE
BORROWER HAS OBTAINED INSURANCE AS REQUIRED BY THIS AGREEMENT.
IF THE ADMINISTRATIVE AGENT PURCHASES INSURANCE FOR THE
COLLATERAL, THE BORROWER WILL BE RESPONSIBLE FOR THE COSTS OF
THAT INSURANCE, INCLUDING INTEREST AND ANY OTHER CHARGES THAT
MAY BE IMPOSED WITH THE PLACEMENT OF THE INSURANCE, UNTIL THE
EFFECTIVE DATE OF THE CANCELLATION OR EXPIRATION OF THE
INSURANCE. THE COSTS OF THE INSURANCE MAY BE ADDED TO THE
PRINCIPAL AMOUNT OF THE OBLIGATIONS OWING HEREUNDER. THE COSTS
OF THE INSURANCE MAY BE MORE THAN THE COST OF THE INSURANCE
THE BORROWER MAY BE ABLE TO OBTAIN ON ITS OWN."
(x) Section 4.15.4 of the Credit Agreement is amended and
restated in its entirety to read as follows (see Schedule B attached hereto and
made a part hereof):
"4.15.4 COLLATERAL UNDERTAKINGS. (a) Borrower will take, and
cause each Subsidiary to take, such actions as are necessary
or as the Administrative Agent or the Required Lenders may
reasonably request from time to time (including the execution
and delivery of guaranties, security agreements, pledge
agreements, mortgages, deeds of trust, financing statements
and other agreements and documents, the filing or recording of
any of the foregoing, and the delivery of stock certificates
and other collateral with respect to which perfection is
obtained by possession) to ensure that (x) the Obligations are
(i) secured by substantially all of the assets of the Borrower
and (ii) guaranteed by all of its Subsidiaries, (except to the
extent provided in subsection "(b)" below) (including,
promptly upon the acquisition or creation thereof, any
Subsidiary acquired or created after the date hereof) by
execution of a guaranty substantially in the form of Exhibit
4.15.4 hereto (each, a "Subsidiary Guaranty") and (y) the
obligations of each such Subsidiary under the applicable
Subsidiary Guaranty are secured
13
by substantially all of the assets of such Subsidiary
(except to the extent provided in subsection "(b)" and
"(c)" below).
(b) For a period of 60 days following the closing of the
Amendment-Third, and provided that a Default or an Event of
Default is not existing, (i) the Borrower will not be required
to pledge the stock of the CCC PCS Subsidiaries and (ii) the
CCC PCS Subsidiaries and CCC Consumer SE will not be required
to execute a Subsidiary Guaranty or Security Agreement. If at
the end of such 60 day period, Borrower and its Subsidiaries
have not sold (whether by stock sale, merger or otherwise) all
of their respective equity interests in each of the CCC PCS
Subsidiaries and CCC Consumer SE, or caused the dissolution of
such Subsidiaries following the sale of substantially all of
the business and assets of such Subsidiaries, then, on such
date (or, if such date is not a Business Day, the next
Business Day following such date), Borrower shall cause any
such Subsidiaries which have not been sold or dissolved to
execute and deliver to Administrative Agent a Subsidiary
Guaranty, Security Agreement, authorizing documents, and such
other documents in connection therewith as may be required by
the Administrative Agent and Required Lenders so that the
Obligations are secured by substantially all of the assets of
such Subsidiaries and Borrower shall, and shall cause its
Subsidiaries to pledge their stock and other equity interests
(which has not been previously been pledged) in any such
Subsidiaries which have not been sold or dissolved to secure
all of the Obligations pursuant to a pledge agreement in form
and substance acceptable to the Administrative Agent. Borrower
hereby represents and warrants to the Administrative Agent and
the Lenders that substantially all of the assets of CCC
Consumer SE consist of assets acquired from, or assets used in
the operation of the business acquired from, Fleming and Hall
Administrators, Inc. pursuant to that certain Asset Purchase
Agreement among Fleming and Hall Administrators, Inc. and CCC
Consumer SE dated as of October 1, 1999."
(c) Within thirty (30) days after the date of the Amendment -
Third, Borrower shall provide to Administrative Agent, (1) a
valid and enforceable pledge of the capital stock or other
equity interests held by Borrower or its Subsidiaries in those
Subsidiaries listed in Part A of Schedule B attached hereto,
and (2) with respect to the equity interests of those certain
direct and indirect Subsidiaries and joint venture interests
identified in Part B of Schedule B (i) a valid and enforceable
pledge of such equity interests, or (ii) evidence satisfactory
to Administrative Agent and its advisors that such pledge
would be unenforceable under applicable law or would violate
the underlying documents to which such equity interests are
14
subject (it being understood that the Borrower will use
commercially reasonable efforts to obtain the consent of the
applicable parties to such pledge), in which event Borrower
shall deliver, or cause to be delivered (within such thirty
(30) day period), a negative pledge (in form and substance
acceptable to Administrative Agent) restricting any transfer
or pledge of such equity interests to any Persons other than
Administrative Agent for the benefit of Lenders.
(d) Within thirty (30) days after the date of the Amendment -
Third, Borrower shall cause each Foreign Subsidiary to execute
and deliver to Administrative Agent a guaranty and security
agreement and such other documents in connection therewith as
may be required by the Administrative Agent and Required
Lenders in form and substance acceptable to the Administrative
Agent so that the Obligations are secured by substantially all
of the assets of such Subsidiaries.
(e) Within twenty (20) days after the date of the Amendment -
Third, Borrower shall provide to Administrative Agent all
original Instruments (which may be replacement notes) required
to be delivered pursuant to the terms of the Security
Agreements including, without limitation, all promissory notes
held by Borrower that are required to be delivered thereunder
including, without limitation, those notes identified on the
Schedule to the Amended and Restated Security Agreement of
Borrower dated as of the date thereof.
(y) Section 4.15 of the Credit Agreement is amended by
inserting the following as Section 4.15.5 of such Section:
"4.15.5 BANK ACCOUNTS. With respect to each bank account
maintained by Borrower or any Subsidiary, Borrower will and
will cause each Subsidiary, as applicable, to (i) within 30
days of the date hereof (or, with respect to the PCS
Subsidiaries, within 60 days of the date hereof) deliver to
Administrative Agent an Assignment of Bank Account Agreement
substantially in the form of Exhibit 4.15.5 or a similar
agreement satisfactory to Administrative Agent granting to
Administrative Agent, for the benefit of the Lenders, a
continuing first-priority security interest in such bank
account and providing to Administrative Agent control over all
funds in such bank account following an Event of Default
hereunder (subject only to such bank's standard and customary
fees and charges), executed on behalf of Borrower or such
Subsidiary, as applicable, and each bank at which any such
bank account is maintained, and (ii) deliver to Administrative
Agent an Assignment of Bank Account or similar agreement (as
15
provided above) for any new bank account which Borrower or any
Subsidiary opens and maintains after the date hereof;
provided, however, the neither Borrower nor its Subsidiaries
will be required to deliver any such assignment in respect of
any bank account maintained by any Foreign Subsidiary (outside
the United States) as of the date of the Amendment - Third, to
the extent Borrower demonstrates to the satisfaction of the
Administrative Agent and its advisors that such an assignment
cannot be obtained under applicable law or cannot be obtained
after using commercially reasonable efforts; provided,
further, however, that the amount of all funds in all such
accounts in respect of which an assignment has not been
obtained shall not at any time after the date which is 30 days
after the Amendment - Third, exceed in the aggregate $100,000
or such greater amount as is set forth in writing from time to
time delivered to the Borrower by the Administrative Agent
(with the approval of the Required Lenders). Borrower further
covenants and agrees that it will, and will cause each
Domestic Subsidiary to cause, not less frequently than on a
weekly basis, all collected funds (in excess of the amount set
forth in writing from time to time delivered to the Borrower
by the Administrative Agent with the approval of the Required
Lenders) in each bank account maintained by Borrower or any
Subsidiary (other than bank accounts which at no time will
have balances in excess of the amount set forth in writing
from time to time delivered to the Borrower by the
Administrative Agent with the approval of the Required
Lenders) to be transferred to a concentration account
identified by and maintained with Administrative Agent;
provided, that, so long as no Default or Event of Default is
existing, neither Borrower nor its Domestic Subsidiaries shall
be required to institute such transfers for a period of 30
days (or, with respect to the PCS Subsidiaries, 60 days)."
(z) Section 4.16 of the Credit Agreement is amended and
restated in its entirety to read as follows:
"4.16 EQUITY INFUSION.
A. CAPRICORN INFUSION. Capricorn Holdings III, LLC's
("Capricorn") has purchased trust preferred stock of a new
Delaware business trust (the "New Trust") owned by the
Guarantor and warrants to purchase 1,200,000 shares of the
common stock of Guarantor for an aggregate purchase price of
$15,000,000 (the "Capricorn Contribution"). Within One (1)
Business Day of the closing of the Amendment - Third, Borrower
shall cause 100% of remaining Net Cash Proceeds from the
Capricorn Contribution, in the approximate amount of
$10,500,000, to be delivered to Administrative Agent to make
the mandatory prepayment required by Section 1.1.6.5.c. Such
prepayment shall not result in a mandatory reduction of the
Line of Credit Commitment pursuant to Section 1.1.6.2.b and,
subject to the
16
terms and conditions hereof, may be re-borrowed
for general corporate purposes and to make the Investments
permitted by Section 5.17.
B. ADDITIONAL INFUSIONS. Borrower will provide
Administrative Agent with documentation and other evidence,
reasonably satisfactory to Administrative Agent, on or before
September 30, 2001, that (i) Guarantor has received
incremental Net Cash Proceeds (I.E., in addition to Capricorn
Contribution) in the amount of at least $25,000,000 (the
"Supplemental Capital Contribution") in exchange for (a)
common equity, (b) other Equity Securities, the terms of which
do not require the payment of cash dividends or require
redemption thereof (earlier than 90 days after the date the
Obligations are paid in full) and are otherwise acceptable to
the Required Lenders in their sole discretion, and/or (c)
Funded Debt which is subordinated in right of payment to the
Obligations, and contains such other terms, covenants and
conditions which are acceptable to Required Lenders in their
sole discretion, and (ii) such Net Cash Proceeds have been
contributed to the equity capital of the Borrower. Further, on
or before June 30, 2001, Borrower or Guarantor will provide
Administrative Agent with one or more signed letters of intent
providing for such Supplemental Capital Contribution which is
or are in form and substance acceptable to the Required
Lenders or will file a registration statement for a rights
offering indicating an intent to complete such offering by
September 30, 2001 on the appropriate form with the SEC, which
registration statement shall provide that the proceeds of such
rights offering will be used to make the Supplemental Capital
Contribution and shall otherwise be in form and substance
reasonably acceptable to the Required Lenders, (such rights
offering or letters of intent, the "LOI"). The Net Cash
Proceeds of the Supplemental Capital Contribution which are
used to make the mandatory prepayment in accordance with
Section 1.1.6.5.c. may, subject to the terms and conditions
hereof, be re-borrowed to the extent permitted by Section
1.1.6.2.b. for general corporate purposes and to make the
Investments permitted by Section 5.17. Notwithstanding
anything in this Agreement to the contrary, the failure of
Borrower to provide the LOI or to receive the Supplemental
Capital Contribution by June 30, 2001 and September 30, 2001,
respectively, will not constitute a Default or Event of
Default hereunder (including, without limitation, Section
7.1.4), but will result in the reduction of the Line of Credit
Commitment as and to the extent provided for in Section
1.1.6.2.b hereof; provided, that the Borrower's failure to
comply with Section 1.1.6.5.b as a result of any such
reduction will constitute an Event of Default hereunder."
(aa) Article 4 of the Credit Agreement is hereby amended by
inserting the following as Section 4.18 of such Article:
"4.18 CONSULTANT. Administrative Agent has retained, and
Administrative Agent (or its advisors) may from time to time
retain at Borrower's sole expense third party consultants
selected by Administrative Agent (collectively, the
"Consultant") to review matters pertaining to the business and
properties of Borrower and
17
its Subsidiaries. The initial Consultant is Nightingale
and Associates, LLC. Borrower will permit, and will cause
its Subsidiaries to permit the Consultant to examine
their respective corporate, financial and operating
records, and, at Borrower's expense, make copies thereof,
inspect the assets, properties, operations and affairs of
the Borrower and its Subsidiaries, visit any or all of
the offices of Borrower and its Subsidiaries to discuss
such matters with its officers and its independent
auditors (and Borrower hereby authorizes such independent
auditors to discuss such matters with such Consultant),
and Borrower will, and will cause its Subsidiaries to
cooperate with the Consultant in all respects. The fees
and expenses of such Consultant shall be (i) the
responsibility of the Borrower, (ii) shall be payable on
demand by the Administrative Agent, and (iii) if
requested by Administrative Agent, shall be paid in whole
or in part in advance by Borrower."
(bb) Section 5.2.f of the Credit Agreement is amended and
restated in its entirety to read as follows:
"f. Indebtedness owing to Borrower or a Subsidiary of Borrower
if, and only to the extent arising from loans or advances made
by a Borrower or a Subsidiary permitted under Section 5.4 or
Section 5.7 hereof."
(cc) Section 5.2.i of the Credit Agreement is amended and
restated in its entirety to read as follows:
"i. [Reserved]."
(dd) Section 5.4 of the Credit Agreement is amended by
deleting clause (b) of such Section and replacing such clause (b) with the
following:
"b. loans or advances to ARA Services Corporation in an amount
not to exceed $100,000 in the aggregate, and "
(ee) Section 5.5.i of the Credit Agreement is amended and
restated in its entirety to read as follows:
"i. [Reserved]."
(ff) Section 5.6 of the Credit Agreement is amended by
deleting clause (c) from such section and replacing such clause (c) with the
following:
"c. [Intentionally Deleted], and"
(gg) Section 5.7 of the Credit Agreement is amended and
restated in its entirety to read as follows:
18
"5.7 ACQUISITIONS AND INVESTMENTS. Borrower will not, and will
not permit any of its Subsidiaries to, lend money or credit or
make advances to any Person, or purchase or acquire any stock,
obligations or securities of, or any other interest in, or
make any capital contribution to, any Person, including any
Acquisition (each of the foregoing an "Investment" and
collectively, "Investments"), other than the following
(collectively, the "Permitted Investments"):
a. government and agency securities backed by the full faith
and credit of the U.S. federal government, and
b. commercial paper issued by any Lender or any other
commercial paper rated A-1+ or A-1 by Standard & Poor's Ratings Group or P-1 by
Moody's Investor Services, Inc., and
c. certificates of deposit, time deposits, other
deposits and bankers' acceptances issued by any Lender or
established with any other federally insured commercial bank
rated as "well capitalized" by their primary federal
regulators, and having unimpaired capital and unimpaired
surplus (collectively) of at least $250,000,000, and whose
commercial paper (or commercial paper that is supported by
such bank's letter of credit or commitment to lend) is rated
as A-1+ or A-1 by Standard & Poor's Ratings Group or P-1 by
Moody's Investor Services, Inc., and
d. [Reserved], and
e. Investments listed on Schedule 5.7(e) in any
Person other than CCC PCS, and
f. Investments listed on Schedule 5.7(f) in
CCC PCS, and
g. Investments in CCC International, CCC Rayfield,
CCC Enterstand JV and CCC ChoiceParts to the extent permitted
by Section 5.17, it being understood that the Investments in
CCC Rayfield and CCC Enterstand JV may be made through CCC
International, Investments in CCC Enterstand JV may be made
through CCC Rayfield and Investments in CCC ChoiceParts JV may
be made through CCC Partsco, and
h. Investments permitted by Section 5.4, and
i. Investments consisting of trade credit
extended in the ordinary course of business to unrelated third
parties, and
j. Investments consisting of loans or advances to CCC
Consumer and CCC Consumer SE in the ordinary course of
business consistent with past practices, provided that all
such loans or advances are appropriately reflected on
Borrower's financial records."
19
(hh) Section 5.8 of the Credit Agreement is amended by
deleting the second sentence of such Section and replacing such sentence with
the following:
"NEW VENTURES; MERGERS. Borrower will not, and will not permit
any of its Subsidiaries to (a) enter into any new business
activities not in a similar line to its current business, or
(b) purchase or otherwise acquire any partnership or joint
venture interest in any Person (other than those partnership
or joint venture interests owned as of the date hereof and
described on Schedule 5.8 hereto), or (b) merge or consolidate
with or into any other corporation, partnership, limited
liability company or other organization, or (c) create or
acquire (or cause or permit the creation or acquisition of)
any Subsidiary."
(ii) Section 5.9 of the Credit Agreement is amended by
deleting clauses (c) and (h) of such Section and replacing such clauses with the
following:
"(c) transactions among Borrower and its Subsidiaries to the
extent permitted by Section 5.6 and Section 5.7 hereof,"
"(h) guaranties, if any, to the extent permitted by Section
5.3 hereof;"
(jj) Section 5.10 of the Credit Agreement is hereby amended
and restated in its entirety to read as follows:
"5.10. DIVIDENDS OR DISTRIBUTIONS. Borrower will not, and will
not permit Guarantor or any of their respective Subsidiaries
to, declare or make (directly or indirectly) any payment or
distribution with respect to, or incur any liability for the
purchase, acquisition, redemption or retirement of, any of
their respective equity interests (including warrants
therefore) or as a dividend, return of capital or other
payment or distribution of any kind to any holder of any such
equity interest other than (i) dividends to Borrower or to a
Restricted Subsidiary of Borrower from any other Subsidiary of
the Borrower, (ii) dividends by Guarantor of Guarantor's
common stock, and (iii) dividends by Guarantor of other Equity
Securities of Guarantor with the written consent of the
Required Lenders, the terms of which do not require the
payment of cash dividends or require redemption thereof
(earlier than 90 days after the date the Obligations are paid
in full) and are otherwise acceptable to the Required Lenders
in their sole discretion. Nothing in this Section 5.10 shall
prohibit payments on or with respect to the Capricorn Notes to
extent such payments are permitted under Section 5.19 or
payments by CCC Capital Trust on or with respect to the Trust
Preferred Securities issued by CCC Capital Trust made with the
proceeds of such payments (permitted by Section 5.19)."
20
(kk) Section 5.11 of the Credit Agreement is amended and
restated in its entirety as follows:
"5.11. INACTIVE AFFILIATE; DRIVELOGIC, INC. Borrower will not
permit Credit Card Services Corporation to possess assets or
property, receive proceeds of any Advance or conduct business
or operations. Borrower shall deliver to Administrative Agent
within five (5) Business Days of the date of Amendment -
Third, evidence satisfactory to Administrative Agent that
DriveLogic, Inc. has been dissolved in accordance with the law
of the jurisdiction of its organization."
(ll) Section 5.12 of the Credit Agreement is amended by
deleting clauses (b) and (c) of such Section in their entirety and replacing
such clauses with the following:
"(b) pursuant to a written management or services agreement
with Borrower or another wholly-owned Subsidiary of Borrower
that is in form and substance reasonably acceptable to the
Administrative Agent, and"
"(c) pursuant to a written management, services,
expense-sharing, and/or tax-sharing agreement with CCC
Information Services Group Inc. ("Manager") that is in form
and substance reasonably acceptable to Administrative Agent
("Management Agreement"), and if, and only to the extent that,
(i) such management and service fees do not in the aggregate
exceed $50,000 in any fiscal year and (ii) no Default or Event
of Default is existing or would result from the payment of
such management and service fees."
(mm) Section 5.13 of the Credit Agreement is amended and
restated in its entirety as follows:
"5.13. THE DRIVE LOGIC DIVISION. Borrower will not permit at
any date the sum of (x) the aggregate amount of Capital
Expenditures made or incurred in respect of the Drive Logic
division of Borrower, plus (y) any negative EBITDA for the
Drive Logic division (negative Drive Logic EBITDA will be
added to, rather than netted against, the amount of such
Capital Expenditures) to exceed (i) $25,000,000 during the
period commencing on and after January 1, 2001 to and
including December 31, 2001, or (ii) during the period
commencing on January 1, 2002 through the Line of Credit
Maturity Date to exceed an amount to be agreed upon by the
Borrower and the Required Lenders within 30 days of the
delivery of the Projections for the fiscal year ending
December 31, 2002 (it being agreed that the Borrower and the
Required Lenders will use commercially reasonable efforts to
reach such agreement); provided, that, no Capital Expenditures
in respect of the Drive
21
Logic division which would otherwise be permitted under
this Section 5.13 shall be permitted to be made if,
immediately before or after giving effect thereto, (A)
Borrower is not in compliance with any of the financial
ratios or covenants set forth in Section 4.1 according to
the most recent monthly financial statements delivered to
the Administrative Agent and the Lenders pursuant to
Section 4.2.1, after giving effect to the Capital
Expenditures Borrower proposes to make, or (B) any
Default or Event of Default exists. In the event that the
Borrower and the Required Lenders cannot agree upon such
revised amount for the period commencing January 1, 2002
through the Line of Credit Maturity Date within such 30
day period, the Required Lenders will set the amount for
such period provided that in setting such revised amount,
the Required Lenders shall use the same methodology as
was used in setting such amount in Amendment -Third,
except that such amount shall be based on the Borrower's
reasonable Projections for the year ended December 31,
2002."
(nn) Section 5.14 of the Credit Agreement is amended and
restated in its entirety as follows:
"5.14. CAPITAL EXPENDITURES. Not permit the aggregate amount
of all Capital Expenditures made by the Borrower and its
Subsidiaries (other than in respect of the Drive Logic
division) (x) during the period commencing January 1, 2001 and
ending December 31, 2001 to exceed $4,400,000 and (y) during
the period commencing on January 1, 2002 through the Line of
Credit Maturity Date to exceed an amount to be agreed upon by
the Borrower and the Required Lenders within 30 days of the
delivery of the Projections for the fiscal year ending
December 31, 2002 (it being agreed that the Borrower and the
Required Lenders will use commercially reasonable efforts to
reach such agreement); provided that if no such agreement is
reached, the Required Lenders may set the maximum amount of
Capital Expenditures using the same methodology as was used to
set the maximum amount of Capital Expenditures for the year
ended December 31, 2001, except that such amount will be based
upon Borrower's reasonable Projections for the fiscal year
ending December 31, 2002."
(oo) Section 5.15 of the Credit Agreement is amended and
restated in its entirety as follows:
"5.15. MODIFICATIONS TO ORGANIC DOCUMENTS. Borrower will not,
and will not permit any of its Subsidiaries to, amend or
otherwise modify any of its Organic Documents in any way which
might reasonably be expected to have a Material Adverse
Effect, and, in any event, without providing the
Administrative Agent and the
22
Lenders with at least 30 days' prior written notice of
any amendment or modification. Borrower will not, and
will not permit any of its Subsidiaries to, without at
least 30 days' prior written notice to Administrative
Agent, change its official name, its operating names, or
the names under which it executes contracts or conducts
business."
(pp) Article 5 of the Credit Agreement is amended by inserting
the following as Section 5.17 of the Credit Agreement:
"5.17. CERTAIN SUBSIDIARY INVESTMENTS AND EXPENDITURES.
Borrower will not, and will not permit any of its Subsidiaries
to, make Investments in CCC International, CCC Rayfield, CCC
Enterstand JV and/or CCC ChoiceParts JV (a) during the period
from April 1, 2001 through December 31, 2001, in excess of
$10,500,000, or (b) during the period from January 1, 2002
through the Line of Credit Maturity Date, in excess of a
budgeted amount to be agreed upon by the Borrower and the
Required Lenders within 30 days of the delivery of the
Projections for the fiscal year ending December 31, 2002 (it
being agreed that the Borrower and the Required Lenders will
use commercially reasonable efforts to reach such agreement);
PROVIDED, that no Investment otherwise permitted by this
Section 5.17 shall be permitted to be made unless, immediately
before and after giving effect thereto, (i) Borrower is in
compliance with each of the financial ratios and covenants set
forth in Section 4.1 according to the most recent monthly
financial statements delivered to the Administrative Agent and
the Lenders pursuant to Section 4.2.1 (after giving effect to
the Investments Borrower proposes to make), (ii) no Default or
Event of Default exists, and (iii) all of the equity interests
of Borrower and its Subsidiaries in (1) CCC International and
CCC Rayfield are pledged to the Administrative Agent for its
benefit and the benefit of the Lenders pursuant to a Pledge
(in form and substance acceptable to Administrative Agent),
and (2) CCC Enterstand JV and CCC ChoiceParts JV are either
(A) pledged to the Administrative Agent for its benefit and
the benefit of the Lenders pursuant to a Pledge (in form and
substance acceptable to Administrative Agent), or (B) to the
extent Borrower demonstrates to the satisfaction of
Administrative Agent and its advisors that such pledge would
be unenforceable under applicable law or would violate the
underlying documents to which such equity interests are
subject (it being understood that Borrower will use
commercially reasonable efforts to obtain consent to such
pledge from the applicable parties), in which event such
pledgor shall deliver a negative pledge (in form and substance
acceptable to Administrative Agent) restricting any transfer
or pledge of such equity interest); provided, however,
compliance with clause (iii)
23
will not be required during the first 30 days following
the date of the Amendment - Third for such Investments in
an amount not to exceed $750,000 in the aggregate.
Notwithstanding the foregoing, in the event that the
Borrower and the Required Lenders cannot agree to the
budgeted amount for additional Investments to be made
during the period commencing January 1, 2002 through the
Line of Credit Maturity Date within such 30 day period,
the Required Lenders will determine the amount of such
permissible Investments in their sole discretion. The
Borrower acknowledges that, for purposes of this Section
5.17, "Investments" include expenses incurred by the
Borrower or any of its Subsidiaries on behalf of, and any
other extensions of credit to, CCC International, CCC
Rayfield, CCC Enterstand JV and CCC ChoiceParts JV,
directly or indirectly."
(qq) Article 5 of the Credit Agreement is hereby amended by
inserting the following as Section 5.18 of the Credit Agreement:
"5.18 MAXIMUM OPERATING LOSS - CCC CONSUMER. Borrower will not
permit the cash operating losses and cash expenses on and
after April 1, 2001 related to the discontinuation and
shutdown of CCC Consumer, CCC Consumer SE and the CCC PCS
Subsidiaries (on a consolidated basis) determined in
accordance with GAAP to exceed $4,000,000 in the aggregate. It
being understood that for purposes of this calculation (i)
"CCC Consumer" shall include that portion of Borrower which is
construed as being CCC Consumer for purposes of SEC reporting,
and (ii) proceeds from any asset sales are excluded from the
calculation. Favorable variances in expenditures are not
permitted to be used elsewhere for the Borrower."
(rr) Article 5 of the Credit Agreement is amended by inserting
the following as Section 5.19 of the Credit Agreement:
"5.19. PAYMENTS IN RESPECT OF CAPRICORN INDEBTEDNESS. Borrower
will not, and will not permit Guarantor or CCC Capital Trust,
or any Subsidiary or Affiliate of Borrower or Guarantor to
make any payment, directly or indirectly, whether for
repayment of indebtedness, return on investment or otherwise,
to Capricorn or its Affiliates or any holder of the Capricorn
Notes other than (i) regularly scheduled cash interest
payments not to exceed $340,000 in the aggregate per quarter
if, and only to the extent that (x) no Default or Event of
Default exists, or would result therefrom, and (y) the Net
Cash Proceeds from the Supplemental Capital Contribution have
been contributed to the equity capital of the Borrower in
accordance with Section 4.16(b), or (ii) scheduled interest
paid in kind (and not in cash, except in respect of fractional
24
shares of the Capricorn Notes which are required to be paid in
cash pursuant to the Capricorn Indenture not to exceed $25,000
per quarter in the aggregate without the prior written consent
of the Required Lenders)."
(ss) Section 7.1.3 of the Credit Agreement is amended and
restated in its entirety as follows:
"7.1.3. CERTAIN COVENANTS. If Borrower defaults in or fails to
observe any of the covenants set forth in Section 4.1 hereof
or Article V hereof."
(tt) Section 7.1.4 of the Credit Agreement is amended and
restated in its entirety as follows:
"7.1.4. OTHER COVENANTS IN LOAN DOCUMENTS. If Borrower or any
other Obligor, defaults in the full and timely performance
when due of any other covenant or agreement (other than those
referenced in Section 7.1.3) contained in any Loan Document
(or in any other document or agreement now or hereafter
executed or delivered in connection herewith), and such
default remains uncured for a period of ten (10) Business
Days."
(uu) Section 7.1 of the Credit Agreement is amended by
inserting the following as Section 7.1.14 of such Section:
"7.1.14 INVALIDITY OF COLLATERAL SECURITY DOCUMENTS, ETC. Any
Collateral Security Document shall cease to be in full force
and effect otherwise than pursuant to its terms; or the
Borrower, any Subsidiary or Obligor (or any Person by, through
or on behalf of the Borrower, any Subsidiary or Obligor) shall
contest in any manner the validity, binding nature or
enforceability of any Collateral Security Document or
Borrower, any Subsidiary or Guarantor shall make payment on
any Subordinated Indebtedness which is prohibited under the
relevant subordination terms."
(vv) Section 7.1 of the Credit Agreement is amended by
inserting the following as Section 7.1.15 of such Section:
"7.1.15 NON-COMPLIANCE WITH POST-CLOSING AGREEMENT. If
Borrower, any of its Subsidiaries or any other Obligor fails
to deliver any documents required by that certain Post-Closing
Agreement, dated as of the date of Amendment - Third, 2001,
between Administrative Agent and Borrower, within the time
period set forth therein."
(ww) Section 7.2.2 of the Credit Agreement is amended and
restated in its entirety as follows:
25
"7.2.2. OTHER. In addition to any rights granted hereunder or
in any other Loan Document, each Lender and Administrative
Agent will have all other rights and remedies granted by any
applicable law (including the rights of a secured party under
the UCC), and all rights and remedies will be cumulative in
nature."
(xx) Section 9.1 of the Credit Agreement is amended by
inserting the following as Section 9.1.1(2) between Section 9.1.1 and Section
9.1.2:
"9.1.1(2). Accounts Receivable has the meaning given to the
term `Account' in the UCC."
(yy) Section 9.1 of the Credit Agreement is amended by
inserting the following as Section 9.1.12(2) between Section 9.1.12 and Section
9.1.13:
"Section 9.1.12(2). `Amendment - Second' means that certain
Second Waiver and Amendment to Amended and Restated Credit
Facility Agreement dated February 15, 2001, among
Administrative Agent, the Borrower and Lenders named therein,
as may be amended, restated or otherwise modified from time to
time."
(zz) Section 9.1 of the Credit Agreement is amended by
inserting the following as Section 9.1.12(3) between Section 9.1.12 and Section
9.1.13:
"Section 9.1.12(3). `Amendment - Third' means that certain
Waiver and Third Amendment to Amended and Restated Credit
Facility Agreement dated as of April 17, 2001, among
Administrative Agent, the Borrower and Lenders named therein,
as may be amended, restated or otherwise modified from time to
time."
(aaa) Section 9.1 of the Credit Agreement is hereby amended by
inserting the following as Section 9.1.12(4) between Section 9.1.12 and Section
9.1.13:
"Section 9.1.12(4). `Asset Sale' means the sale, lease,
assignment or other transfer for value (including, an
insurance recovery for a casualty loss) (each a "Disposition")
by the Borrower or any Subsidiary to any Person (other than
the Borrower or any Subsidiary) of any asset or right of the
Borrower or such Subsidiary, other than (i) the sale or lease
of Customer Equipment to any unrelated third party in the
ordinary course of business, and (ii) any other sale or lease
of assets in the ordinary course of business having a value
(which, for these purposes means the greater of book value or
fair market value) not in excess of $250,000 in the aggregate
in any fiscal year. "
26
(bbb) Section 9.1 of the Credit Agreement is hereby amended by
inserting the following as Sections 9.1.17(2) through 9.1.17(15) between Section
9.1.17 and 9.1.18:
"9.1.17(2). `CCC' means CCC Information Services Inc., a
Delaware corporation."
"9.1.17(3). `CCC Canada' means Certified Collateral
Corporation of Canada Ltd., a corporation organized under the
laws of Ontario, Canada."
"9.1.17(4). `CCC Consumer' means CCC Consumer Services Inc., a
Delaware corporation."
"9.1.17(5). `CCC International' means CCC International
Holding, Ltd.. a private liability company organized under the
laws of the United Kingdom."
"9.1.17(6). `CCC Norris' means D.W. Norris, a private
liability company organized under the laws of the United
Kingdom."
"9.1.17(7). `CCC Rayfield' means Rayfield Limited, a private
liability company organized under the laws of the United
Kingdom."
"9.1.17(8). `CCC Partsco' means CCC Partsco Holding, Inc., a
Delaware corporation."
"9.1.17(9). `CCC ChoiceParts JV' means Choice Parts LLC, a
Delaware limited liability company."
"9.1.17(10). `CCC PCS' means, Professional Claims Services
Inc., a California corporation."
"9.1.17(11). `CCC PCS Arizona' means Professional Claim
Services, Inc. of Arizona, an Arizona corporation."
"9.1.17(12). `CCC PCS Washington' means Professional Claim
Services, Inc., a Washington corporation."
"9.1.17(13). `CCC PCS Nevada' means Professional Claim
Services, Inc., a Nevada corporation."
"9.1.17(14). `CCC PCA Texas' means Professional Claims
Administration, Inc., a Texas corporation.
"9.1.17(15). `CCC Consumer SE' means Consumer Services
Southeast Inc., a Delaware corporation."
27
"9.1.17(16). `CCC Enterstand JV' means private limited company
incorporated under the laws of England and Wales."
"9.1.17(17). `CCC PCS Subsidiaries' means, collectively, CCC
PCS, CCC PCS Arizona, CCC PCS Washington, CCC PCS Nevada and
CCC PCA Texas."
(ccc) Section 9.1 of the Credit Agreement is hereby amended by
inserting the following as Section 9.1.17(18) between Section 9.1.17 and Section
9.1.18:
"9.1.17(18). `Capricorn" has the meaning set forth in Section
4.16."
(ddd) Section 9.1 of the Credit Agreement is hereby amended by
inserting the following as Section 9.1.17(19) between Section 9.1.17 and Section
9.1.18:
"9.1.17(19). `Capricorn Contribution' has the meaning set
forth in Section 4.16."
(eee) Section 9.1 of the Credit Agreement is hereby amended by
inserting the following as Section 9.1.17(20)between Section 9.1.17 and Section
9.1.18:
"9.1.17(20). `Capricorn Indenture" means that certain
Indenture dated as of February 23, 2001, between Guarantor and
Wilmington Trust Company, as Trustee."
(fff) Section 9.1 of the Credit Agreement is hereby amended by
inserting the following as Section 9.1.17(21 between Section 9.1.17 and Section
9.1.18:
"9.1.17(21). `Capricorn Notes' has the meaning given to the
term `Notes' in the Capricorn Indenture"
(ggg) Section 9.1 of the Credit Agreement is hereby amended by
inserting the following as Section 9.1.17(22) between Section 9.1.17 and Section
9.1.18:
"9.1.17(22). `Cash Flow Coverage Ratio' means, at any time
such ratio is being calculated, a ratio calculated as set
forth under the heading `Cash Flow Coverage Ratio' in Exhibit
4.2."
(hhh) Section 9.1.24 of the Credit Agreement is hereby amended
and restated in its entirety as follows:
"9.1.24. `Collateral Security Documents' means, individually
and collectively, the Pledge Agreement, each Pledge, each
Security Agreement, each Mortgage and the financing statements
related to any of the foregoing, all as may be amended,
restated or otherwise modified from time to time and (b) any
additional documents granting security or Collateral to
Lenders or Administrative Agent
28
(for the benefit of Lenders to secure any of the
Obligations), all as amended, restated or otherwise
modified from time to time."
(iii) Section 9.1 of the Credit Agreement is hereby amended by
inserting the following as Section 9.1.28(2) between Sections 9.1.28 and 9.1.29:
"9.1.28(2). `Designated Proceeds' has the meaning set forth in
Section 1.1.6.5.b."
(jjj) Section 9.1 of the Credit Agreement is hereby amended by
inserting the following as Section 9.1.29(2) between Section 9.1.29 and Section
9.1.30
"9.1.29(2). `Domestic Subsidiary' means any Subsidiary
incorporated or organized within the United States of America
or any state thereof."
(kkk) Section 9.1.30 of the Credit Agreement is amended and
restated in its entirety as follows:
"9.1.30. `EBITDA' means, at the time of any determination, the
sum of the following items during the four consecutive fiscal
quarter period most recently ended unless otherwise indicated:
a. Net income from continuing operations during
such period -- i.e., excluding extraordinary items and the
cumulative effect of accounting changes -- determined in
accordance with GAAP, and
b. plus Interest Expense during such period,
but subtract interest income accrued during such period, and
c. plus all charges in accordance with GAAP for
federal and state income taxes during such period, and
d. plus depreciation permitted under GAAP
during such period, and
e. plus amortization expense permitted under
GAAP during such period.
When used herein, the term `EBITDA' means the EBITDA of
Borrower and its Subsidiaries on a consolidated basis, unless
otherwise provided for herein. For purposes of this
calculation, Interest Expense shall include interest accrued
under Capital Leases, determined in accordance with GAAP.
Notwithstanding any of the foregoing, the calculation of
EBITDA shall not include the operations of InsurQuote Systems,
Inc. unless and until it becomes a Subsidiary."
29
(lll) Section 9.1 of the Credit Agreement is amended by
inserting the following as Section 9.1.33(2), between Section 9.1.33 and Section
9.1.34 of the Credit Agreement:
"9.1.33(2) "Equity Security" means any stock or other equity
security or similar security (other than a debt security)
convertible, with or without consideration, into such a
security, or carrying any warrant or right to subscribe to or
purchase such a security; or any such warrant or right."
(mmm) Section 9.1 of the Credit Agreement is amended by
inserting the following as Section 9.1.38 between Section 9.1.38 and Section
9.1.39 of the Credit Agreement:
"9.1.33(2) `Foreign Subsidiary' means any Subsidiary, other
than a Domestic Subsidiary."
(nnn) Section 9.1.57 of the Credit Agreement is hereby amended
and restated in its entirety to read as follows:
"9.1.57. `L/C Commitment' means the commitment of the Issuing
Bank to Issue, and the Lenders severally to participate in,
Letters of Credit from time to time Issued or outstanding
under Section 1.2, in an aggregate amount not to exceed on any
date the amount of $5,000,000, as the same may be limited by
Section 1.2.1."
(ooo) Section 9.1 of the Credit Agreement is hereby amended by
inserting the following Section 9.1.60(2) between Section 9.1.60 and Section
9.1.61:
"9.1.60(2). `Letter of Credit Fee' has the meaning set forth
in Section 1.2.7."
(ppp) Section 9.1.66 of the Credit Agreement is hereby amended
and restated in its entirety to read as follows:
"9.1.66. `Line of Credit Commitment' means, at any time of
determination, the aggregate amount of all Commitments of all
Lenders at such time up to a maximum amount of $55,000,000, as
reduced from time to time pursuant to Section 1.1.6.2."
(qqq) Section 9.1.71 of the Credit Agreement is amended and
restated in its entirety to read as follows:
"9.1.71. `Loan Documents' means, collectively, this Agreement,
the Notes, the Parent Guaranty, any Subsidiary Guaranty, the
Collateral Security Documents, the Subordination Agreement,
all L/C-Related Documents and any other documents, agreements
and certificates entered into or delivered in connection
herewith
30
or therewith or pursuant hereto or thereto, all as may be
amended, restated, modified and supplemented from time to
time."
(rrr) Section 9.1 of the Credit Agreement is hereby amended by
inserting the following as Section 9.1.72(2) between Section 9.1.72 and Section
9.1.72(3):
"9.1.72(2). `LOI' has the meaning set forth in Section
4.16.b."
(sss) Section 9.1 of the Credit Agreement is hereby amended by
inserting the following as Section 9.1.72(3) between Section 9.1.72 (2) and
Section 9.1.73:
"9.1.72(3). `Mandatory Prepayment Event' has the meaning set
forth in Section 1.1.6.5.c."
(ttt) Section 9.1 of the Credit Agreement is hereby amended by
inserting the following as Section 9.1.76(2) between Section 9.1.76 and Section
9.1.77:
"9.1.76(2). `Minimum Rolling 3-Month Cash Flow' means, as of
any time such calculation is made, the calculation set forth
under the heading `Minimum Rolling 3-Month Cash Flow' in
Exhibit 4.2."
(uuu) Section 9.1 of the Credit Agreement is hereby amended by
inserting the following as Section 9.1.76(3) between Section 9.1.76(2) and
Section 9.1.77:
"9.1.76(3). `Mortgage' means a mortgage, deed of trust,
leasehold mortgage or similar instrument granting the Lenders
or Administrative Agent (for the benefit of the Lenders) a
Lien on real property of the Borrower or any Subsidiary, all
as may be amended, restated or otherwise modified from time to
time."
(vvv) Section 9.1 of the Credit Agreement is hereby amended by
inserting the following as Section 9.1.76(4) between Section 9.1.76 and Section
9.1.77:
"9.1.76(4). `Net Cash Proceeds' means:
a. with respect to any Asset Sale the aggregate cash
proceeds (including cash proceeds received by way of deferred
payment of principal pursuant to a note, installment
receivable or otherwise, but only as and when received)
received by the Borrower or any Subsidiary pursuant to such
Asset Sale net of (i) the direct reasonable out-of-pocket
costs relating to such sale, transfer or other disposition
(including sales commissions and legal, accounting and
investment banking fees), (ii) taxes paid or reasonably
estimated by the Borrower to be payable as a result thereof
(after taking into account any available tax credits or
deductions and any tax sharing arrangements) and (iii) amounts
required to be applied to the repayment of any Funded Debt
secured by a Lien on the asset subject to such Asset Sale
(other than the Obligations);
31
(1) with respect to any issuance of equity
securities, the aggregate cash proceeds received by the
Guarantor, Borrower or any of their respective Subsidiaries
pursuant to such issuance, net of the direct reasonable
out-of-pocket costs relating to such issuance (including sales
and underwriter's commission); and
b. with respect to any issuance of Funded Debt, the
aggregate cash proceeds received by the Guarantor, Borrower or
any of their respective Subsidiaries pursuant to such
issuance, net of the direct reasonable out-of-pocket costs of
such issuance (including up-front fees and placement fees)."
(www) Section 9.1 of the Credit Agreement is hereby modified
by inserting the following Section 9.1.84(2) between Section 9.1.84 and Section
9.1.85:
"9.1.84(2). `Periodic Compliance Certificate' means a
certificate in the form of Exhibit 4.2 hereto."
(xxx) Section 9.1.86 of the Credit Agreement is hereby amended
and restated in its entirety to read ad follows:
"9.1.86. `Permitted Dividends' means any dividends which were
`Permitted Dividends' under Section 5.10 of this Credit
Agreement prior to the amendment of such Section 5.10 on
October 20, 2000, pursuant to that certain Waiver and
Amendment to Amended and Restated Credit Facility Agreement,
among the Administrative Agent, the Borrower and other parties
thereto."
(yyy) Section 9.1 of the Credit Agreement is amended by
inserting the following Section 9.1.93(2) between Section 9.1.93 and Section
9.1.94:
"9.1.93(2). `Pledge' means a pledge agreement executed by any
Person pledging capital stock, membership interests or other
equity or ownership interests in any other Person to the
Lenders or Administrative Agent (for the benefit of the
Lenders), all as may be amended, restated or otherwise
modified from time to time."
(zzz) Section 9.1.104 of the Credit Agreement is hereby
amended and restated in its entirety to read as follows:
"9.1.104. `Restricted Subsidiary' means a direct or indirect
Subsidiary of Borrower that executes and delivers a Subsidiary
Guaranty and Security Agreement granting to Administrative
Agent, for the benefit of the Lenders, a security interest on
substantially all of its assets."
(aaaa) Section 9.1 of the Credit Agreement is amended by
inserting the following Section 9.1.106(2) between Section 9.1.106 and Section
9.1.107:
32
"9.1.106(2). `Security Agreement' means a security agreement,
trademark and license security agreement, patent and license
security agreement, copyright and license security agreement
or other instrument granting the Lenders or Administrative
Agent (for the benefit of the Lenders) a Lien on any personal
property of the Borrower or any Subsidiary, all as may be
amended, restated or otherwise modified from time to time."
(bbbb) Section 9.1.108 of the Credit Agreement is amended and
restated in its entirety as follows:
"9.1.108. `Subordinated Indebtedness' means indebtedness under
those certain subordinated notes owing from the Borrower to
the Guarantor, the payment of which is subject to that certain
Subordination Agreement dated as of the date hereof in favor
of the Administrative Agent for the benefit of the Lenders and
the Issuing Bank and all other indebtedness and monetary
obligations of the Guarantor, Borrower or any of their
respective Subsidiaries subordinated to the repayment of the
Obligations on terms and conditions satisfactory to the
Required Lenders."
(cccc) Section 9.1 of the Credit Agreement is amended by
inserting the following Section 9.1.110(2) between Section 9.1.110 and Section
9.1.111:
"9.1.110(2). `Supplemental Capital Contribution' has the
meaning set forth in Section 4.16(b)."
(dddd) Section 9.1.113 of the Credit Agreement is amended and
restated in its entirety as follows:
"9.1.113. `Total Charge Coverage Ratio' means, at any time
such ratio is being calculated, a ratio calculated as set
forth under the heading `Total Charge Coverage Ratio' in
Exhibit 4.2."
(eeee) Section 9.1.114 of the Credit Agreement is hereby
amended and restated in its entirety to read as follows:
"9.1.114. `UCC' means the Uniform Commercial Code as in effect
in the State of Illinois on the date of this Agreement, as may
be amended or otherwise modified, including by the UCC
Revisions; provided that, as used in Section 7.2.2 hereof,
"UCC" shall mean the Uniform Commercial Code as in effect from
time to time in any applicable jurisdiction."
(ffff) Section 9.1 of the Credit Agreement is amended by
inserting the following as Section 9.1.115:
33
"9.1.115. `UCC Revisions' means, the revisions to Article 9
and other Articles of the Uniform Commercial Code, as adopted
by the State of Illinois, effective July 1, 2001."
(gggg) Section 9.2 of the Credit Agreement is amended by
inserting the following as Section 9.2.3 of such Section:
"9.2.3. References to Agreement and Statutes. Unless otherwise
expressly provided herein, (i) references to agreements
(including this Credit Agreement) and other contractual
instruments shall be deemed to include all subsequent
amendments and other modifications thereto, but only to the
extent such amendments and other modifications are not
prohibited by the terms of any Loan Document, and (ii)
references to any statute or regulation shall be construed as
including all statutory and regulatory provisions amending,
replacing, supplementing or interpreting such statute or
regulation."
(hhhh) Section 10.7 of the Credit Agreement amended by
deleting the first sentence of such Section in its entirety and replacing such
sentence with the following:
"10.7. Notices. Any notice, request, consent, waiver or other
communication required or permitted under or in connection
with the Loan Documents will be deemed satisfactorily given if
it is in writing and is delivered either personally to the
addressee thereof, or by prepaid registered or certified U.S.
mail (return receipt requested), or by a nationally recognized
commercial courier service with next-day delivery charges
prepaid, or by telegraph, or by facsimile (voice confirmed),
or by any other reasonable means of personal delivery to the
party entitled thereto at its respective address set forth
below:
If to Borrower: CCC Information Services Inc.
World Trade Center Chicago
444 Merchandise Mart
Chicago, IL 60654
Attention: Reid Simpson
Facsimile: (312) 527-1194
With a Copy To (which shall not constitute
notice to Borrower):
Skadden, Arps, Slate, Meagher & Flom (Illinois)
333 West Wacker Drive
Chicago, Illinois 60606
Attention: Peter C. Krupp
Facsimile: (312) 407-0411
34
If to Administrative Agent:
LaSalle Bank National Association
135 South LaSalle Street
Chicago, Illinois 60603
Attention: Aimee Daniels
Facsimile: (312) 904-8914
With a Copy To:
Vedder, Price, Kaufman & Kammholz
222 North LaSalle Street
Chicago, Illinois 60601-1003
Attention: Jeffrey C. Davis
Facsimile: (312) 609-5005
If to any Lender: Such Lender's address and facsimile set
forth on the signature pages hereof.
(iiii) Paragraph 2(i) and Paragraph 4 of the Amendment-Second
are hereby amended and restated in their entirety as follows:
"2.(i) [Reserved]."
"4. [Reserved]."
3. REPRESENTATIONS, COVENANTS AND WARRANTIES; NO DEFAULT.
(a) This Amendment has been duly authorized by all necessary
corporate action on the part of the Borrower, has been duly executed by the
Borrower and constitutes legal, valid and binding obligations of the Borrower,
and is enforceable against the Borrower in accordance with its terms except to
the extent enforceability hereof is limited by applicable bankruptcy, insolvency
or similar laws affecting creditors' rights generally.
(b) Except for the representations and warranties of Borrower
made as of a particular date and except as set forth on Schedule A-3, the
representations, covenants and warranties set forth in Article 3 of the Credit
Agreement after giving effect to this Amendment shall be deemed remade as of the
date hereof by Borrower; provided, however, that any and all references to the
Credit Agreement in such representations and warranties shall be deemed to
include this Amendment and all prior express written waivers and amendments.
(c) No Default or Event of Default has occurred and is
continuing after giving effect to this Amendment and all prior express written
waivers and amendments.
4. LIMITED WAIVER OF CERTAIN FINANCIAL COVENANTS. The Lenders and the
Administrative Agent hereby waive any Default or Event of Default arising or
occurring under Section 4.1.1, 4.1.2 and 4.1.3 of the Credit Agreement, to the
extent such noncompliance therewith existed as of March 31, 2001 (for the period
ending March 31, 2001), and under
35
Section 4.2.3 as a result of the failure of the Borrower to deliver audited
financial statements for the fiscal year ended December 31, 2000 within 90
calendar days after the close of such fiscal year to the extent such
noncompliance therewith existed as of March 31, 2001, subject to and
conditional upon the effectiveness of this Amendment.
Borrower hereby acknowledges that the waiver contained in this Section
4 is granted only for the limited purpose set forth herein. The waiver in this
Section 4 is granted only for the specific instance specified herein and in no
manner creates a course of dealing or otherwise impairs the future ability of
Administrative Agent or any of the Lenders to declare an Event of Default under
or otherwise enforce the terms of the Credit Agreement after giving effect to
this Amendment. Nothing in this Amendment shall be construed to mean that any
such waiver of the financial covenants or other waivers specified above for such
period will extend to any other period.
5. FEES AND EXPENSES. Borrower agrees to pay on demand all reasonable
costs and expenses of or incurred by Administrative Agent in connection with the
evaluation, negotiation, preparation, execution and delivery of this Amendment
and the other instruments and documents executed and delivered in connection
with the transactions described herein (including the filing or recording
thereof), including, but not limited to, the reasonable fees and expenses of
counsel for the Administrative Agent. In addition, Borrower shall pay at the
closing of this Amendment to Administrative Agent, for the benefit of the
Lenders, a waiver fee which shall be deemed earned as of the date of this
Amendment and shall be non-refundable, in the amount of Two Hundred Seventy-Five
Thousand Dollars ($275,000.00), which will be distributed to the Lenders PRO
RATA based on the amount of each Lender's Commitment.
6. DELIVERY OF DOCUMENTS AT CLOSING. At the closing of this Amendment,
Administrative Agent shall have received from Borrower the following documents,
fully executed by the Borrower, CCC Information Services Group Inc., and the
Restricted Subsidiaries, as applicable, in form and substance satisfactory to
Administrative Agent:
(a) This Amendment;
(b) An Amended and Restated Security Agreement between
Borrower and Administrative Agent;
(c) A Security Agreement among each domestic Restricted
Subsidiary and Administrative
Agent;
(d) A Pledge Agreement of Domestic Subsidiaries, in which
Borrower and each domestic Restricted Subsidiary pledges to Administrative
Agent, for its benefit and the benefit of the Lenders, all of their respective
stock or other equity ownership interests in each direct or indirect material
Subsidiary or joint venture, except to the extent provided in Schedule II
thereof;
(e) An opinion of Borrower's counsel;
(f) A Subsidiary Guaranty from each domestic Restricted
Subsidiary;
36
(g) A Patent and License Security Agreement among
Borrower and Administrative Agent;
(h) A Trademark and License Security Agreement among
Borrower and Administrative Agent;
(i) A Copyright and License Security Agreement among
Borrower and Administrative Agent;
(j) A secretary's certificate from the Borrower, Guarantor and
each Restricted Subsidiary, together with certified copies of Borrower's,
Guarantor's and each Restricted Subsidiary's Organic Documents, incumbency
certifications and authorizing resolutions and documents; and
(k) A Post Closing Agreement which is acceptable to
Administrative Agent in its sole discretion.
7. EFFECTUATION. This Amendment shall be deemed effective upon receipt
by Administrative Agent of (i) six (6) counterpart signature pages duly executed
on behalf of the Borrower and each Subsidiary, as applicable of each of the
documents set forth in Section 6, and (ii) executed signature pages to this
Amendment from at least that number of Lenders that constitute Required Lenders
under the Credit Agreement. THERE ARE NO OTHER CONDITIONS PRECEDENT TO THE
EFFECTIVENESS OF THIS AMENDMENT.
8. CONTINUING EFFECT. Except as specifically modified above, the Credit
Agreement and all other documents, instruments and agreements executed and/or
delivered in connection therewith shall remain in full force and effect, and are
hereby ratified and confirmed. The execution, delivery and effectiveness of this
Amendment shall not operate as a waiver of any right, power or remedy of the
Administrative Agent or the Lenders, nor constitute a waiver of any provision of
the Credit Agreement or any other documents, instruments or agreements executed
and/or delivered in connection therewith (except as expressly set forth herein).
Nothing herein shall constitute a waiver by the Administrative Agent or the
Lenders of any existing (except as expressly waived pursuant to Section 4 above)
or hereafter arising Default or Event of Default nor shall the Administrative
Agent's and the Lenders' execution and delivery of this Amendment establish a
course of dealing among the Administrative Agent, the Lenders, the Borrower or
any other obligor or in any other way obligate the Administrative Agent or any
Lenders to provide hereafter any further consents, waivers or modifications with
respect to the Credit Agreement.
9. COLLATERAL DOCUMENTS. Borrower has herewith and heretofore executed
and delivered to the Administrative Agent certain Loan Documents, and Borrower
hereby acknowledges and agrees that, notwithstanding the execution and delivery
of this Amendment, the Loan Documents remain in full force and effect and the
rights and remedies of the Administrative Agent thereunder, the obligations of
Borrower thereunder and the liens and security interests created and provided
for thereunder remain in full force and effect and shall not be affected,
impaired or discharged hereby. Nothing herein contained shall in any manner
affect or impair the priority of the liens and security interests created and
provided for in the Loan
37
Documents as to the indebtedness which would be secured thereby prior to
giving effect to this Amendment.
10. RELEASE; INDEMNIFICATION.
(a) In further consideration of the execution by the Required
Lenders and Administrative Agent of this Amendment, Borrower, individually and
on behalf of its successors (including, without limitation, any trustees acting
on behalf of Borrower and any debtor-in-possession with respect to Borrower),
assigns, Subsidiaries and Affiliates (collectively, the "Releasors"), hereby
forever releases the Lenders, the Administrative Agent, the Issuing Bank and
their respective successors, assigns, parents, Subsidiaries, Affiliates,
officers, employees directors, agents and attorneys (collectively, the
"Releasees") from any and all debts, claims, demands, liabilities,
responsibilities, disputes, causes, damages, actions and causes of actions
(whether at law or in equity) and obligations of every nature whatsoever,
whether liquidated or unliquidated, whether known or unknown, matured or
unmatured, fixed or contingent (collectively, "Claims") that any of the
Releasors may have against any of the Releasees which arise from or relate to
any actions which any of the Releasees may have taken or omitted to take prior
to the date this Amendment was executed including without limitation with
respect to the Obligations, any Collateral, the Credit Agreement, any other Loan
Document and any third parties liable in whole or in part for the Obligations;
provided that no Releasee shall be released from any claim to the extent that
such claim arises from its gross negligence or wilful misconduct. This provision
shall survive and continue in full force and effect whether or not (i) Borrower
shall satisfy all other provisions of this Amendment, the Loan Documents or the
Credit Agreement including, without limitation, payment in full of all
Obligations, (ii) this Amendment otherwise is terminated, or (iii) Lenders'
waiver pursuant to this Amendment ceases pursuant to this Amendment.
(b) Borrower hereby agrees to indemnify and hold the Releasees
harmless from and with respect to any and all liabilities, obligations, losses,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature (collectively "Expenses") whatsoever incurred by any of the
Releasees, whether direct, indirect, consequential, exemplary or otherwise,
arising out of, or related to, any of the Claims hereby released or any claim or
proceeding by any Person against any of the Releasees arising out of, or related
to, the negotiation, preparation, execution, delivery, performance,
administration or enforcement of this Amendment or any other document executed
in connection herewith. The foregoing indemnity shall survive the payment in
full of the Obligations and the termination of this Amendment, the Credit
Agreement and the other agreements provided that no Releasee shall be
indemnified for any Expense to the extent caused by its gross negligence or
wilful misconduct.
11. COUNTERPARTS. This Amendment may be executed in two or more
counterparts, each of which shall be deemed an original, and all of which
together shall constitute one and the same instrument. Delivery of an executed
counterpart of this Amendment by facsimile shall be equally as effective as
delivery of a manually executed counterpart of this Amendment. Any party
delivering an executed counterpart of this Amendment by facsimile shall also
deliver a manually executed counterpart of this Amendment, but the failure to
deliver a manually executed counterpart shall not affect the validity,
enforceability and binding effect of this Amendment.
38
[SIGNATURE PAGE FOLLOWS]
39
(WAIVER AND THIRD AMENDMENT TO CREDIT FACILITY AGREEMENT SIGNATURE PAGE)
IN WITNESS WHEREOF, the parties hereto have duly executed this Waiver
and Third Amendment to Credit Facility Agreement as of the date first above
written.
CCC INFORMATION SERVICES INC.
By: /s/ Reid E. Simpson
Name: Reid E. Simpson
Title: Executive Vice President and
Chief Financial Officer
Address:
CCC Information Services, Inc.
444 Merchandise Mart Plaza
Chicago, IL 60654-1005
Main: 312-229-3200
Fax: 312-527-1194
(WAIVER AND THIRD AMENDMENT TO CREDIT FACILITY AGREEMENT SIGNATURE PAGE)
LASALLE BANK NATIONAL ASSOCIATION,
f/k/a LaSalle National Bank,
as Administrative Agent
By: /s/ Aimee Daniels
Aimee Daniels,
Senior Vice President and Division Head
Address:
LaSalle Bank National Association
135 South LaSalle
Chicago, IL 60603
Attention: Aimee Daniels
Senior Vice President and Division Head
Main: 312/904-8914
Fax: 312/904-0409
A-41
WAIVER AND THIRD AMENDMENT TO CREDIT FACILITY AGREEMENT SIGNATURE PAGE)
LASALLE BANK NATIONAL ASSOCIATION
By: /s/ Aimee Daniels
Aimee Daniels,
Senior Vice President and Division Head
Address:
LaSalle Bank National Association
135 South LaSalle
Chicago, IL 60603
Attention: Aimee Daniels
Senior Vice President and Division Head
Main: 312/904-8914
Fax: 312/904-0409
A-42
(WAIVER AND THIRD AMENDMENT TO CREDIT FACILITY AGREEMENT SIGNATURE PAGE)
FLEET NATIONAL BANK
By: Peggy Peckham
Its: Senior Vice President
Address:
Fleet National Bank
Mail Code: MA DE 100 0 6A
100 Federal Street
Boston, MA 02110
Attention: Peggy Peckham, Senior Vice President
Main: 617-434-6337
Fax: 617-434-4775
A-43
(WAIVER AND THIRD AMENDMENT TO CREDIT FACILITY AGREEMENT SIGNATURE PAGE)
HARRIS TRUST AND SAVINGS BANK
By:
Its:
Address:
Harris Trust and Savings Bank
111 West Monroe Street
10th Floor West
Chicago, IL 60603
Attention: Keith Niebrugge
Main: 312-461-3136
Fax: 312-461-2591
A-44
(WAIVER AND THIRD AMENDMENT TO CREDIT FACILITY AGREEMENT SIGNATURE PAGE)
BANK LEUMI USA
By: Jon W. Spoerry
Its: First Vice President
Address:
Bank Leumi USA
100 North LaSalle
Chicago, IL 60602
Attention: Jon W. Spoerry
Main: 312-781-1806
Fax: 312-781-9469
A-45
(WAIVER AND THIRD AMENDMENT TO CREDIT FACILITY AGREEMENT SIGNATURE PAGE)
WELLS FARGO BANK WISCONSIN, N.A.,
f/k/a Norwest Bank Wisconsin, N.A.
By: /s/ Linda Backhaus
Its: Vice President
Address:
Wells Fargo Bank Wisconsin N.A.
100 East Wisconsin Avenue, Suite 1400
Milwaukee, WI 53202-4101
Attention: Linda Backhaus
Main: 414-224-7406
Fax: 414-224-7410
A-46