EXHIBIT 10.3
SECOND WAIVER AND AMENDMENT TO
AMENDED AND RESTATED CREDIT FACILITY AGREEMENT
This SECOND WAIVER AND AMENDMENT TO AMENDED AND RESTATED CREDIT FACILITY
AGREEMENT (this "Amendment") is entered into as of the 15th day of February,
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,
CCC Information Services Inc., a Delaware corporation ("Borrower"), and CCC
Information Services Group, Inc., a Delaware corporation, as Guarantor (in such
capacity, the "Guarantor").
W I T N E S S E T H:
WHEREAS, Administrative Agent, 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 (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 amount available thereunder,
and (ii) waive certain defaults under certain financial covenants.
WHEREAS, The Guarantor guaranteed the payment and performance in full
when due of the liabilities of every kind and nature of the Borrower to the
Lenders, the Issuing Bank and the Administrative Agent pursuant to that certain
Guaranty of CCC Information Services Group, Inc. dated as of October 29, 1998
made by Guarantor in favor of the Administrative Agent for the Lenders and the
Issuing Bank under the Credit Agreement (the "Guaranty").
NOW, THEREFORE, for and in consideration of the waiver of certain defaults
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 PARAGRAPH 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provisions shall be deemed superseded hereby.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, the Borrower and the Administrative Agent hereby amend the
Credit Agreement as follows:
(a) SECTION 1.1.6.2.b. of the Credit Agreement is hereby deleted in
its entirety.
(b) SECTION 9.1.66 of the Credit Agreement is hereby amended and
restated in its
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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 $60,000,000 as of December __,
2000, as reduced from time to time pursuant to SECTION 1.1.6.2,
PROVIDED, HOWEVER, that until the consummation of the Capricorn
Contribution (defined in SECTION 4.16), the amount available under the
Line of Credit Commitment shall be $51,000,000."
(c) SECTION 5.2(i) of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
"(i) currently outstanding non-recourse indebtedness set forth on
SCHEDULE 5.2(i) in an amount of up to $5,000,000 secured only by real
property owned by the Borrower or any of its Subsidiaries; and"
(d) SECTION 5.4(e) of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
"and (e) currently outstanding loans to employees and sales
representatives for the sole purpose of permitting such employees or
sales representatives to purchase common stock of the Guarantor from
the Guarantor's treasury; PROVIDED HOWEVER, that such loans must be
paid according to their terms which currently exist, such loans may
not be increased nor may any funds repaid by such employees or sales
representatives be re-lent by Borrower, and no new loans may be
extended by Borrower to its employees or sales representatives."
(e) SECTION 5.7(e) of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
"(e) currently outstanding Investments set forth on SCHEDULE 5.7(e) in
any Person other than Professional Claims Services Inc., AND"
(f) SECTION 5.7(f) of the Credit Agreement is hereby amended and
restated in its entirety to read as follows: :
"(e) currently outstanding Investments in or loans to Professional
Claims Services Inc. set forth on SCHEDULE 5.7(f), AND"
(g) SECTION 5.7(g) of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
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"(g) Investments in Restricted Subsidiaries and the Borrower."
(h) SECTION 5.10 of the Credit Agreement is hereby amended and
restated in its entirety to read as follows:
"5.10. Borrower will not, and will not permit any of its 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 its equity interests
(including warrants therefor) or as a dividend (other than dividends
to Borrower or to a wholly-owned Subsidiary of Borrower from
wholly-owned Subsidiaries of the Borrower), return of capital or other
payment or distribution of any kind to any holder of any such equity
interest."
(i) Notwithstanding ARTICLE 5 of the Credit Agreement, except as set
forth in SCHEDULE 2(e) hereto, neither Borrower nor any of its Subsidiaries
shall be permitted to make loans or advances to, Investments in, transfer assets
to or make acquisitions on behalf of, any direct or indirect subsidiary.
(j) SECTION 4.2.1 of the Credit Agreement is amended and restated in
its entirety to read as follows:
"4.2.1. MONTHLY FINANCIAL STATEMENTS. Within fifteen (15) Business
Days of the end of each month, Borrower must prepare and deliver to
each Lender and Administrative Agent unaudited monthly consolidating
financial statements. 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 a certificate executed by the
President, the Chief Financial Officer, the Treasurer or such other
senior executive officer of Guarantor as is acceptable to
Administrative Agent (a) stating that the financial statements fairly
present the financial condition of Borrower as of the date thereof and
for the periods covered thereby (subject to quarterly and year end
adjustments), and (b) certifying that as of the date of such
certificate there is not any existing Default or Event of Default."
(k) SECTION 4.16 of the Credit Agreement is amended in its entirety to
read as follows:
"4.16 EQUITY INFUSION. Borrower will provide Administrative
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Agent with documentation and other evidence, reasonably satisfactory
to Administrative Agent, confirming Capricorn Holdings III, LLC's
("Capricorn") purchase of 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 approximately $15,000,0000, substantially
in accordance with its commitment Letter to Guarantor dated January
24, 2001, with the subsequent sale by the Guarantor of debt securities
to the New Trust for an acquisition price of approximately $15,500,000
(with respect to which a reasonable amount of transaction costs will
be paid, not to exceed $1,250,000), all prior to February 23, 2001
(the "Capricorn Contribution")."
3. REPRESENTATIONS, COVENANTS AND WARRANTIES; NO DEFAULT.
(a) Except for the representations and warranties of Borrower made as
of a particular date, 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. No Event of Default has occurred and
is continuing and no event has occurred and is continuing as of the date hereof
which, with the lapse of time, the giving of notice, or both, would constitute
such an Event of Default under the Credit Agreement after giving effect to this
Amendment.
(b) Attached hereto as SCHEDULE B is a true and accurate
organizational chart of the Guarantor setting forth the organizational structure
and ownership of each of the related companies to the Guarantor.
4. GUARANTOR'S REPRESENTATIONS, COVENANTS AND WARRANTIES. Guarantor hereby
represents, covenants and warrants that it will not, and will not permit any of
its Subsidiaries to, make loans or advances to, Investments in, transfer assets
to or make acquisitions on behalf of, any direct or indirect subsidiary other
than such loans, advances, Investments, transfers or acquisitions which are
expressly subject and subordinate to any rights the Borrower has (or rights
which the Borrower would have had if Guarantor had not made such loan, advance,
Investment, transfer or acquisition) to receive payments from such direct or
indirect Subsidiary whether Borrower's rights to receive payment are as a result
of equity interests in such Subsidiary or not; PROVIDED, HOWEVER, that any
loans, advances, Investments, transfers or acquisitions from Guarantor to any
direct or indirect Subsidiary which is in excess of the amount of the Capricorn
Contribution received by Guarantor shall not be limited hereunder.
5. LIMITED WAIVER OF CERTAIN FINANCIAL COVENANTS. Subject to the terms and
conditions contained herein and notwithstanding any contrary provisions
contained in the Credit Agreement, the Lenders and the Administrative Agent
hereby consent to and waive any Event of Default arising or occurring under
SECTION 4.1.1, 4.1.2 and 4.1.3 of the Credit Agreement effective as of December
31, 2000 for the period ending December 31, 2000. Borrower hereby acknowledges
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that the waiver contained in this SECTION 5 is granted by Administrative Agent
only for the limited purpose set forth herein. The waiver in this SECTION 5 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 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
covenant specified above for such period will extend to any other period.
6. 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, on or prior to the effective
date hereof, Borrower shall pay Administrative Agent, on behalf of the Lenders
executing this Amendment, concurrent with the receipt by Administrative Agent of
signature pages to this Amendment executed and delivered by Lenders constituting
Required Lenders and execution of this Amendment by the Administrative Agent, a
fee of Sixty Thousand and 00/100 Dollars ($60,000.00), to be distributed to the
Lenders who execute this Amendment on a pro rata basis based on the amount of
each Lender's Commitment. In addition, Borrower will pay Administrative Agent,
for the ratable benefit of Lenders, the Periodic Facility Fee as set forth in
SECTION 1.7.2 of the Credit Agreement at the rate and times set forth therein.
For purposes of calculating the Periodic Facility Fee from the period of January
1, 2001 through and including the Effective Date of this Amendment, the Line of
Credit Commitment shall be deemed to be $100,000,000 and the limited waiver
being granted herein shall be deemed to be granted as of the Effective Date
hereof.
7. DELIVERY OF DOCUMENTS. Notwithstanding any of the foregoing, prior to
entering into this Amendment, Administrative Agent shall have received from
Borrower the following fully executed documents, fully executed by the Borrower
and CCC Information Services Group Inc., as applicable, in form and substance
satisfactory to Administrative Agent, and all of the transactions contemplated
by each such document shall have been consummated or each condition contemplated
by each such document shall have been satisfied:
(a) this Second Waiver and Amendment;
(b) the Guaranty Reaffirmation of CCC Information Services Group Inc.;
(c) Reaffirmation of pledge of stock of Borrower;
(d) the Security Agreement, along with all UCC Financing Statements
requested by the Administrative Agent;
(e) evidence satisfactory to Administrative Agent of the commitment of
Capricorn Holdings to provide $15,000,000 in equity financing; and
(g) Post-Closing Agreement dated as of even date herewith by and
between
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Borrower and Administrative Agent.
8. EFFECTUATION. The amendments to the Credit Agreement contemplated by
this Amendment shall be deemed effective as of the date hereof immediately upon
the full execution of this Amendment and the receipt by the Administrative Agent
of fully executed copies of all of the documents required to be provided to
Administrative Agent pursuant to SECTION 7 hereof and without any further action
required by the parties hereto. There are no other conditions precedent or
subsequent to the effectiveness of this Amendment.
9. ACKNOWLEDGMENT OF CONSIDERATION. Borrower and Guarantor hereby
acknowledge and agree that the granting of the limited waivers set forth herein
by the Administrative Agent and the Lenders is fair consideration for the
Borrower granting the security interest in its Collateral as set forth in the
Security Agreement.
10. CONTINUING EFFECT. Except as otherwise specifically set forth herein,
the terms and provisions of the Credit Agreement shall remain in full force and
effect.
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.
[SIGNATURE PAGE FOLLOWS]
(WAIVER AND AMENDMENT TO CREDIT FACILITY AGREEMENT SIGNATURE PAGE)
IN WITNESS WHEREOF, the parties hereto have duly executed this Second
Waiver and Amendment to Credit Facility Agreement as of the date first above
written.
LASALLE BANK NATIONAL ASSOCIATION,
f/k/a LaSalle National Bank, as
Administrative Agent
By: /s/ Amy Long
Its: Vice President
CCC INFORMATION SERVICES INC.
By: /s/ Reid E. Simpson
Its: Executive Vice President &
Chief Financial Officer
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CCC INFORMATION SERVICES GROUP,
INC.,
as Guarantor
By: /s/ Reid E. Simpson
Its: Executive Vice President
and Chief Financial Officer
Acknowledged and Agreed:
LASALLE BANK NATIONAL ASSOCIATION
By: /s/ Amy Long
Its: Vice President
FLEET NATIONAL BANK
By: /s/ David Eusden
Its: Director
HARRIS TRUST AND SAVINGS BANK
By:
Its:
BANK LEUMI USA
By: /s/ Jon W. Spoerry
Its: First Vice President
NORWEST BANK WISCONSIN, N.A.
By: /s/ Linda C. Banckhaus
Its: Vice President
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