WAIVER AND FOURTH AMENDMENT TO
AMENDED AND RESTATED CREDIT FACILITY AGREEMENT
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This WAIVER AND FOURTH AMENDMENT TO AMENDED AND RESTATED CREDIT
FACILITY AGREEMENT (this "Amendment") is entered into as of the 14th day of
August, 2001, 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 have 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 further amended by that certain Second Waiver and
Amendment to Amended and Restated Credit Facility Agreement dated as of February
15, 2001, as further amended by that certain Waiver and Third Amendment to
Amended and Restated Credit Facility Agreement dated as of April 17, 2001
("Amendment - Third"), as further amended by that certain Waiver and Extension
Amendment dated as of May 15, 2001, as further amended by that certain Second
Waiver and Extension Amendment dated as of June 15, 2001, as further amended by
that certain Third Waiver and Extension Amendment dated as of July 13, 2001 and
as further modified by that certain letter agreement dated July 30, 2001
(collectively, as may be further amended, supplemented or otherwise modified,
the "Credit Agreement");
WHEREAS, in connection with the Amendment - Third, the Administrative
Agent and Borrower have entered into that certain Post-Closing Matters Agreement
dated as of April 17, 2001 (the "PCM Agreement");
WHEREAS, the Borrower requested, and the Administrative Agent and the
Lenders agreed to, certain extensions of time to complete certain obligations
under the Credit Agreement and PCM Agreement;
WHEREAS, as of the date hereof, the Borrower has requested (i) certain
waivers of certain obligations under the Credit Agreement and the PCM Agreement,
and (ii) certain amendments to the financial covenants and other covenants;
WHEREAS, the parties hereto desire to amend certain other provisions
of the Credit Agreement; 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 waivers, 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 of the Credit Agreement 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 AGREEMENTS. Subject to the terms and
conditions contained herein, on and after August 14, 2001, the parties hereto
agree as follows:
(a) EXHIBIT 4.2 to the Credit Agreement is hereby
amended and replaced by 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.
(b) Section 1.1.6.2.b. of the Credit Agreement is
amended by inserting the following as the last sentence of such section:
"On August 14, 2001, the Line of Credit Commitment shall be
further permanently reduced by $4,000,000. Notwithstanding the
provisions of Clause (ii) above to the contrary, if the Net
Cash Proceeds from the Supplemental Capital Contribution are
not contributed to the equity capital of the Borrower in
accordance with Section 4.16(b) by September 30, 2001, then
the $3,000,000 reduction to the Line of Credit Commitment
which is to occur on September 30, 2001, and on the last day
of each month thereafter pursuant to Clause (ii) above, shall
be decreased by an aggregate amount of up to $4,000,000, as
hereafter described. The $3,000,000 reduction to the Line of
Credit Commitment which is to occur on September 30, 2001, and
monthly $3,000,000 reductions to the Line of Credit Commitment
which are to occur on October 31, 2001, November 30, 2001, and
December 31, 2001, pursuant to Clause (ii) above if such Net
Cash Proceeds from the Supplemental Capital Contribution have
not been so contributed, shall each be decreased by $1,000,000
(to $2,000,000) until such Net Cash Proceeds from the
Supplemental Capital Contribution have been so contributed, it
being understood that no such decrease shall occur after such
Net Cash Proceeds from the Supplemental Capital Contribution
have been so contributed and in no event will the aggregate
amount of such decreases exceed $4,000,000."
(c) Section 1.1.6.5.c. of the Credit Agreement is amended
by inserting the following immediately after the first full sentence of such
section:
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"On August 14, 2001, Borrower shall pay to Agent (to the
extent it has not already done so) the cash proceeds of the
Tax Refund and the payment of such cash proceeds (whether on
or prior to August 14, 2001) shall be deemed a mandatory
prepayment under this Section 1.1.6.5.c. plus an amount equal
to the difference between $4,000,000 and the Tax Refund
($51,099)."
(d) 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. MINIMUM TOTAL CHARGE COVERAGE RATIO. A Total Charge
Coverage Ratio of NOT LESS THAN the applicable ratio set forth
below for such measurement date:
MONTH ENDING MINIMUM TOTAL CHARGE COVERAGE RATIO
------------ -----------------------------------
July 31, 2001 1.25 to 1.00
August 31, 2001 1.25 to 1.00
September 30, 2001 1.50 to 1.00
October 31, 2001 1.50 to 1.00
November 30, 2001 2.00 to 1.00
December 31, 2001 2.00 to 1.00
4.1.2. MAXIMUM CASH FLOW LEVERAGE RATIO. A Cash Flow Leverage
Ratio of NOT MORE THAN the applicable ratio set forth below
for such measurement date:
MEASUREMENT DATE MAXIMUM CASH FLOW LEVERAGE RATIO
---------------- --------------------------------
July 31, 2001 3.50 to 1.00
August 31, 2001 3.50 to 1.00
September 30, 2001 3.50 to 1.00
October 31, 2001 3.00 to 1.00
November 30, 2001 3.00 to 1.00
December 31, 2001 2.50 to 1.00
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4.1.3. MINIMUM ROLLING 3-MONTH CASH FLOW. A Rolling 3-Month
Cash Flow of NOT LESS THAN the following amounts as of such
measurement dates (for negative amounts "minimum" means an
absolute value NOT TO EXCEED):
MEASUREMENT DATE MINIMUM ROLLING 3-MONTH CASH FLOW
---------------- ---------------------------------
July 31, 2001 ($2,000,000)
August 31, 2001 ($3,850,000)
September 30, 2001 ($3,900,000)
October 31, 2001 ($3,700,000)
November 30, 2001 ($2,450,000)
December 31, 2001 $3,400,000
4.1.4. MINIMUM ADJUSTED NET WORTH. An Adjusted Net Worth of
NOT LESS THAN the following amounts as of such measurement
dates (for negative amounts "minimum" means an absolute value
NOT TO EXCEED):
MEASUREMENT DATE MINIMUM ADJUSTED NET WORTH*
---------------- --------------------------
July 31, 2001 ($13,900,000)
August 31, 2001 ($13,500,000)
September 30, 2001 ($13,400,000)
October 31, 2001 ($12,500,000)
November 30, 2001 ($10,800,000)
December 31, 2001 ($9,200,000)
* The "Minimum Adjusted Net Worth" requirement as of any
measurement date will increased by an amount equal to the sum
of (i) ninety percent (90%) of the aggregate amount of any
Subordinated Indebtedness (other than the Subordinated
Indebtedness evidenced by the Capricorn Notes) as of such
measurement date, PLUS (ii) ninety percent (90%) of the
Designated Proceeds from any issuance of Equity Securities by
Guarantor, Borrower or their respective Subsidiaries AFTER
April 17, 2001.
4.1.5. MINIMUM ANNUALIZED ADJUSTED EBITDA. An Annualized
Adjusted EBITDA of NOT LESS THAN the following amounts as of
such measurement dates:
MEASUREMENT DATE MINIMUM ANNUALIZED ADJUSTED EBITDA
---------------- ----------------------------------
July 31, 2001 $12,000,000
August 31, 2001 $13,400,000
September 30, 2001 $13,700,000
October 31, 2001 $15,200,000
November 30, 2001 $17,300,000
December 31, 2001 $18,900,000
Borrower and the Required Lenders will use all commercially
reasonable efforts to set the Total Charge Coverage Ratio,
Cash Flow Leverage Ratio, Rolling 3-Month Cash Flow, Adjusted
Net Worth, and Annualized Adjusted EBITDA levels for each
measurement date occurring after December 31, 2001 until and
including the Line of Credit Maturity Date, within 30 days
after Borrower's delivery of the Projections for the year
ended December 31, 2002 (which shall be delivered no later
than
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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 - Fourth, except
that such levels shall be based on the Borrower's reasonable
Projections for the year ended December 31, 2002."
(e) Section 4.2 of the Credit Agreement is amended by
deleting each reference to "Section 5.13" in Section 4.2 each time it appears.
(f) The last sentence of Section 4.15.4(b) of the Credit
Agreement is amended and restated as follows:
"Borrower hereby represents and warrants to the Administrative
Agent and the Lenders that as of April 17, 2001 substantially
all of the assets of CCC Consumer SE consisted of assets
acquired from, or assets used in the operation of the business
acquired from, ▇▇▇▇▇▇▇ and ▇▇▇▇ Administrators, Inc. pursuant
to that certain Asset Purchase Agreement among ▇▇▇▇▇▇▇ and
Hall Administrators, Inc. and CCC Consumer SE dated as of
October 1, 1999."
(g) SECTION 4.15.4(c) and SCHEDULE B to the Credit
Agreement and Section 3 of the PCM Agreement are hereby amended by extending
the date by which Borrower is required to pledge all of the capital stock or
other equity interests held by Borrower or its Subsidiaries in CCC ▇▇▇▇▇▇▇▇,
to and including August 31, 2001.
(h) Section 4.15.5 of the Credit Agreement is amended and
restated as follows:
"4.15.5 BANK ACCOUNTS.
a. BORROWER AND DOMESTIC SUBSIDIARIES. Borrower will not, and
will not permit any Domestic Subsidiary to, maintain
any bank account or similar account (other than an account
with the Administrative Agent) except any account which is
subject to an Assignment of Bank Accounts substantially in the
form of EXHIBIT 4.15.5 (or a similar agreement satisfactory to
Administrative Agent), or any other account provided that all
funds in all accounts which are not subject to an Assignment
of Bank Account (or such similar agreement) shall not at any
time 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
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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 Domestic 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.
b. FOREIGN SUBSIDIARIES. Borrower will not permit CCC
Canada to maintain any bank account or similar account other
than any account which is subject to an Assignment of Bank
Accounts (or similar agreement satisfactory to Administrative
Agent), or any other account provided that all funds in all
such other accounts which are not subject to an Assignment of
Bank Accounts (or such similar agreement), shall not at any
time exceed $100,000 in the aggregate 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 will not permit CCC International,
CCC ▇▇▇▇▇▇▇▇ or CCC ▇▇▇▇▇▇ to maintain any bank account or
similar account other than any account which is subject to an
Assignment of Bank Accounts (or similar agreement satisfactory
to Administrative Agent), or any other account provided that
all funds in all such other accounts which are not subject to
an Assignment of Bank Accounts (or such similar agreement),
shall not at any time exceed $365,000 in the aggregate 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)."
(i) Section 5.7 of the Credit Agreement is amended by
amending and restating Clauses f., g. and j. of such Section as follows:
"f. [Intentionally Deleted]."
"g. Investments (i) in CCC International, CCC ▇▇▇▇▇▇▇▇, CCC
▇▇▇▇▇▇, CCC Enterstand JV and CCC ChoiceParts JV to the extent
permitted by Section 5.17, it being understood that the
Investments in CCC ▇▇▇▇▇▇▇▇ and CCC Enterstand JV may be made
through CCC International, Investments in CCC Enterstand JV
may be made through CCC ▇▇▇▇▇▇▇▇ and Investments in CCC
ChoiceParts JV may be made through CCC Partsco, and (ii) in
CCC International, CCC ▇▇▇▇▇▇▇▇, CCC ▇▇▇▇▇▇ and CCC
ChoiceParts JV made during the
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period from April 17, 2001 through and including June 30,
2001, not in excess of $750,000 in the aggregate, pursuant
to former Section 5.17 of the Credit Agreement as amended by
the Amendment - Third, and
"j. Investments consisting of loans or advances to
CCC Consumer 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."
(j) Section 5.13 of the Credit Agreement is amended and
restated as follows:
"[Intentionally Deleted]."
(k) Section 5.14 of the Credit Agreement is amended and
restated as follows:
"5.14. CAPITAL EXPENDITURES. Not permit the aggregate amount
of all Capital Expenditures (excluding expenditures under
Capital Leases existing as of January 1, 2001, but including
increases of expenditures under such Capital Leases resulting
from modifications or other changes to such Capital Leases
after January 1, 2001, and expenditures under Capital Leases
entered into on or after January 1, 2001) made by the Borrower
and its Subsidiaries (x) during the period commencing January
1, 2001 and ending December 31, 2001 to exceed $6,000,000 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 in
the Amendment - Fourth, except that such amount will be based
upon Borrower's reasonable Projections for the fiscal year
ending December 31, 2002."
(l) Section 5.17 of the Credit Agreement is amended and
restated as follows:
"5.17. CERTAIN SUBSIDIARY INVESTMENTS AND
EXPENDITURES. Borrower will not, and will not permit any of
its Subsidiaries to, make Investments from and after July 1,
2001 in CCC International, CCC ▇▇▇▇▇▇▇▇, CCC ▇▇▇▇▇▇, CCC
Enterstand JV or CCC ChoiceParts JV except as hereafter
provided. The Borrower acknowledges that, "Investments"
include expenses incurred by the
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Borrower or any of its Subsidiaries (other than CCC
International, CCC ▇▇▇▇▇▇▇▇, CCC ▇▇▇▇▇▇, CCC Enterstand JV and
CCC ChoiceParts JV) on behalf of, and any other extensions of
credit to, CCC International, CCC ▇▇▇▇▇▇▇▇, CCC ▇▇▇▇▇▇,
CCC Enterstand JV, and CCC ChoiceParts JV, directly or
indirectly.
a. CCC INTERNATIONAL, CCC ▇▇▇▇▇▇▇▇, CCC ▇▇▇▇▇▇
AND CCC ENTERSTAND. During the period from July 1, 2001
through December 31, 2001, Borrower may make Investments
consisting of advances to CCC International, CCC ▇▇▇▇▇▇▇▇, CCC
▇▇▇▇▇▇ and CCC Enterstand JV in an amount not to exceed
$4,800,000 in the aggregate if, and only to the extent that
(i) such Investments are used solely in connection with the
wind-down of the operations of CCC International, CCC
▇▇▇▇▇▇▇▇, CCC ▇▇▇▇▇▇ and payment of any obligations to CCC
Enterstand JV existing as of August 14, 2001, (ii) such
Investments are evidenced by written promissory notes which
are pledged to the Administrative Agent pursuant to a
collateral assignment of promissory notes acceptable to
Administrative Agent other than such Investments in CCC
Enterstand JV, (iii) immediately before and after giving
effect to such Investment 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 proposed
Investments), and (iv) immediately before and after giving
effect to any such Investment no Default or Event of Default
exists (or will be caused by the proposed Investments) It is
understood and agreed that the $4,800,000 in Investments
provided for in this Section 5.17(a) includes any
Investment made with respect to the $700,000 in Investments
permitted pursuant to Section 4 of Third Waiver and Extension
Amendment dated as of July 13, 2001.
b. CCC CHOICEPARTS JV. During the period from
July 1, 2001 through March 31, 2002, Borrower may make
Investments in CCC ChoiceParts JV in an amount not to exceed
$2,100,000 in the aggregate if, and only to the extent that
(i) such Investments are pledged to, or Administrative Agent
is granted a security interest in, such Investments, as
required by Administrative Agent, pursuant to an agreement
acceptable to Administrative Agent or such Investments have
already been pledged to the Administrative Agent pursuant to
the Collateral Security Documents, (ii) immediately before and
after giving effect to such Investment 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 proposed Investments), and (iii) immediately before and
after
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giving effect to such investment no Default or Event of
Default exists (or will be caused by the proposed
Investments)."
(m) Section 9.1 of the Credit Agreement is amended by
inserting the following as Section 9.1.4(2) between Section 9.1.4 and Section
9.1.5:
"9.1.4(2). `ADJUSTED NET WORTH' means, as of any measurement
date, the net worth of Guarantor and its Subsidiaries, on a
consolidated basis, calculated in accordance with GAAP, PLUS
(i) the Subordinated Indebtedness evidenced by the Capricorn
Notes as of such measurement date, PLUS (ii) the
aggregate amount of any other Subordinated Indebtedness as of
such measurement date (other than the Subordinated
Indebtedness evidenced by the Capricorn Notes), LESS (iii) any
non-cash write-up of any Investment (calculated on an
after-tax basis) of any of the Guarantor, Borrower or any
Subsidiary occurring AFTER July 1, 2001, to the extent
included in net income, PLUS (iv) any non-cash write-down of
any Investment (calculated on an after-tax basis) of any of
the Guarantor, Borrower or any Subsidiary occurring AFTER July
1, 2001, to the extent included in net income. For greater
certainty, the write-down in June 2001, of the Borrower's
Investment in ChannelPoint, Inc. (equity and promissory notes)
will not be added back under clause (iv) above."
(n) Section 9.1 of the Credit Agreement is amended by
inserting the following as Section 9.1.12(2), Section 9.1.12(3) and Section
9.1.12(6) and renumbering existing Section 9.1.12(2), Section 9.1.12(3) and
Section 9.1.12(4) as Section 9.1.12(4), Section 9.1.12(5) and Section
9.1.12(7), respectively:
"9.1.12(2). `ADJUSTED EBITDA' means, as of any measurement
date, the result of the following calculation for
Borrower and its Subsidiaries on a consolidated basis, but
excluding the Consumer Segment, for the year-to-date period
ended on such measurement date, all determined in accordance
with GAAP (with respect to Clauses b. THROUGH m., to the
extent included in net income from continuing operations
during such period):
a. Net income from continuing operations during
such period - I.E., excluding extraordinary items and
the cumulative effect of accounting changes, PLUS OR (LESS)
b. All interest required to be charged as an expense
(recorded as income) under GAAP during such period including,
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without limitation, interest accrued under Capital Leases,
PLUS OR (LESS)
c. All charges (benefits) for federal and state
income taxes, PLUS
d. Depreciation, PLUS
e. Amortization expenses, PLUS OR (LESS)
f. Equity in loss (net income) of CCC
Enterstand JV, PLUS OR (LESS)
g. Equity in loss (net income) of CCC ChoiceParts JV,
PLUS OR (LESS)
h. CCC Capital Trust minority interest expense
(income), PLUS OR (LESS)
i. Loss (gain) on exchange of investment securities,
PLUS OR (LESS)
j. Other non-operating expenses (income),
including, without limitation, in respect of ChannelPoint,
Inc., a Delaware corporation, PLUS OR (LESS)
k. Intercompany interest expense (income), PLUS
OR (LESS)
l. Equity in loss (net income) of subsidiaries, PLUS
m. Restructuring Charges."
"9.1.12(3). `AMENDMENT - FOURTH' means that certain Waiver and
Fourth Amendment to Amended and Restated Credit Agreement
dated as of August 14, 2001, among Administrative Agent,
Borrower and the Lenders named therein, as may be amended,
restated or otherwise modified from time to time."
"9.1.12(6). `ANNUALIZED ADJUSTED EBITDA' means, (i)
for any December 31 measurement date, Adjusted EBITDA, and
(ii) for any other measurement date, an amount equal to the
product of (x) the quotient obtained by dividing Adjusted
EBITDA as of such measurement date by the number of calendar
months in the year-to-date period ending on such measurement
date, and (y) twelve (12)."
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(o) Section 9.1.17(22) of the Credit Agreement is
amended and restated as follows:
"9.1.17(22). `CASH FLOW LEVERAGE RATIO' means, as of any
measurement date, the ratio of Senior Debt to Annualized
Adjusted EBITDA calculated as of such measurement date."
(p) Section 9.1 of the Credit Agreement is amended by
inserting the following as Section 9.1.19(2) between Section 9.1.19 and Section
9.1.20:
"9.1.19(2). `CASH INTEREST PAID' means, as of any measurement
date, the amount of all interest required to be charged as an
expense under GAAP (other than in respect of Capital Leases,
amendment fees or other amortized financing fees and expenses)
which are paid in cash or required to be paid in cash for the
year-to-date period ending on such measurement date."
(q) Section 9.1 of the Credit Agreement is amended by
inserting the following as Section 9.1.26(2) between Section 9.1.26 and Section
9.1.27:
"9.1.26(2). `CONSUMER SEGMENT' means, those portions of the
operations of the Borrower and its Subsidiaries that are
construed as being related to CCC Consumer for SEC reporting
purposes."
(r) Section 9.1.38 of the Credit Agreement is amended
and restated as follows:
"[Intentionally Deleted]."
(s) Section 9.1 of the Credit Agreement is amended by
inserting the following as Section 9.1.104(2), Section 9.1.104(3) and Section
9.1.104(4) between Section 9.1.104 and Section 9.1.105:
"9.1.104(2). `RESTRUCTURING CHARGE' means, with respect to any
Person, the costs of restructuring business operations of such
Person which are considered restructuring charges in
accordance with GAAP and which are required to be disclosed as
a component of income from continuing operations pursuant to
Staff Accounting Bulletin No. 67 (Income Statement
Presentation of Restructuring Charges)."
9.1.104(4). `ROLLING 3-MONTH CASH FLOW' means, as of any
measurement date, the cash flows for Guarantor and its
Subsidiaries on a consolidated basis for the three month
period ending on such measurement date, calculated as cash
flows from operating activities, plus or less, as applicable,
cash flows from investing activities, plus or less, as
applicable, cash flows from financing activities (excluding
cash flows from the incurrence and
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payment of bank debt and issuance and retirement of
Guarantor's equity securities), all determined in accordance
with GAAP, consistently applied."
(t) Section 9.1 of the Credit Agreement is amended by
inserting the following as Section 9.1.106(3) between Section 9.1.106(2) and
Section 9.1.107:
"9.1.106(3). `SENIOR DEBT' means Funded Debt LESS Subordinated
Indebtedness."
(u) Section 9.1 of the Credit Agreement is amended by
inserting the following as Section 9.1.111(2) between Section 9.1.111 and
Section 9.1.112:
"9.1.111(2) `TAX REFUND' means the two tax refunds received by
Borrower in July 2001 in the aggregate amount of $3,948,901
related to the operations of CCC International, CCC ▇▇▇▇▇▇▇▇
and CCC ▇▇▇▇▇▇."
(v) Section 9.1.112 is amended and restated as follows:
"9.1.112. `TOTAL CHARGES' means, as of any measurement date,
the sum of the following items (without duplication) for
Borrower and its Subsidiaries on a consolidated basis for the
period ending on the measurement date, all determined in
accordance with GAAP:
a. The amount of principal required to be paid
on Senior Debt (other than in respect of Capital Leases)
during such period, AND
b. The amount of principal required to be paid on
Subordinated Indebtedness including, without limitation,
the Capricorn Notes during such period, AND
c. Cash Interest Paid, AND
d. Capital Lease obligations (principal and
interest) required to be paid during such period, AND
e. The amount of Capital Expenditures during
such period, excluding Capital Expenditures for Customer
Equipment, AND
f. The net amount of federal and state income
taxes required to be paid during such period.
Unless otherwise expressly indicated the "period" shall be the
calendar year-to-date period ending on the applicable
measurement date."
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(w) Section 9.1.113 of the Credit Agreement is amended
and restated as follows:
"9.1.113. `TOTAL CHARGE COVERAGE RATIO' means, as of any
measurement date, the ratio of Adjusted EBITDA to Total
Charges computed as of such measurement date."
3. WAIVERS AND CONSENTS.
(a) The requirements of SECTION 4.15.4(c) and SCHEDULE B to
the Credit Agreement and Section 3 and Section 4 of the PCM Agreement that
Borrower pledge or cause to be pledged, or provide a negative pledge with
respect to, all of the capital stock or other equity interests held by
Borrower and its Subsidiaries, in CCC Enterstand JV and CCC ▇▇▇▇▇▇, as is
more particularly described in such sections and schedule, are hereby waived
as of August 10, 2001, provided that such waiver shall cease to be effective
if any of CCC International, CCC ▇▇▇▇▇▇ or CCC ▇▇▇▇▇▇▇▇ have any ongoing
operations, employees, cash or cash equivalents or any material assets or
liabilities (other than liabilities not required to be reported as
liabilities on the consolidated financial statements of Borrower pursuant to
GAAP) after December 31, 2001.
(b) Section 4.15.4(d) of the Credit Agreement and Section
10 of the PCM Agreement, which require Borrower to cause the execution and
delivery of a guaranty, security agreement and related documents with respect
to CCC International, CCC ▇▇▇▇▇▇▇▇ and CCC ▇▇▇▇▇▇, as is more particularly
described in such sections, are hereby waived as of August 10, 2001, provided
that such waiver shall cease to be effective if any of CCC International, CCC
▇▇▇▇▇▇ or CCC ▇▇▇▇▇▇▇▇ have any ongoing operations, employees, cash or cash
equivalents or any material assets or liabilities (other than liabilities not
required to be reported as liabilities on the consolidated financial
statements of Borrower pursuant to GAAP) after December 31, 2001.
(c) Borrower previously represented that CCC ▇▇▇▇▇▇▇▇ was
an indirect, rather than a direct, subsidiary of the Borrower. Borrower
represents that CCC ▇▇▇▇▇▇▇▇ is a direct subsidiary of the Borrower. Any
Default or Event of Default caused by such prior representation is hereby
waived.
(d) The Lenders hereby consent to the dissolutions of
CCC Consumer, CCC Consumer SE and Asset Management, Inc., a Delaware
corporation, notwithstanding any provision in the Loan Documents which would
otherwise prohibit such dissolutions. Borrower will provide the Administrative
Agent with written notice of any such dissolution within five business days
after such dissolution.
4. 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.
13
(b) Except for the representations and warranties of Borrower
made as of a particular date and except as set forth on SCHEDULE A-3 to the
Amendment-Third, 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 August 14, 2001 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.
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 August 14, 2001 and shall be non-refundable, in
the amount of Two Hundred Fifty-Two Thousand Three Hundred Dollars
($252,300), 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, in form and substance
satisfactory to Administrative Agent:
(a) This Amendment;
(b) A reaffirmation agreement from Guarantor and each
Restricted Subsidiary in form and substance acceptable to Administrative Agent;
(c) A secretary's certificate from the Borrower and
Guarantor, certifying no change in the Organic Documents of either Borrower or
Guarantor since they were delivered to Administrative Agent, together with
incumbency certifications and authorizing resolutions; and
(d) An opinion of counsel to Borrower and Guarantor in
form and substance acceptable to Administrative Agent and its counsel.
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 of each of the documents set forth in SECTION
6, (ii) executed signature pages to this Amendment from at least that number of
Lenders that constitute Required Lenders under the Credit Agreement, and (iii)
payment of the waiver fee provided for in Section 5 of this Amendment. 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 Loan Documents shall remain in full force and
effect, and are hereby ratified and
14
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 Loan Document (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 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, except as expressly
provided in 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 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,
15
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. GOVERNING LAW. This Amendment shall be construed, interpreted
and enforced according to the internal laws of the State of
Illinois, without
regard to the conflicts of laws provisions of such State.
12. 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.
[SIGNATURE PAGE FOLLOWS]
16
IN WITNESS WHEREOF, the parties hereto have duly executed this Waiver
and Fourth Amendment as of the date first above written.
CCC INFORMATION SERVICES INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President and
Chief Financial Officer
Address:
CCC Information Services Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Main: 312-229-3200
Fax: ▇▇▇-▇▇▇-▇▇▇▇
(WAIVER AND FOURTH AMENDMENT SIGNATURE PAGE)
LASALLE BANK NATIONAL ASSOCIATION,
f/k/a LaSalle National Bank,
as Administrative Agent
By: /s/ ▇▇▇ ▇▇▇▇
-------------------------------------------
▇▇▇ ▇▇▇▇,
Vice President
Address:
LaSalle Bank National Association
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇
Vice President
Main: 312/904-4130
Fax: 312/▇▇▇-▇▇▇▇
(WAIVER AND FOURTH AMENDMENT SIGNATURE PAGE)
LASALLE BANK NATIONAL ASSOCIATION
By: /s/ ▇▇▇ ▇▇▇▇
-------------------------------------------
▇▇▇ ▇▇▇▇,
Vice President
Address:
LaSalle Bank National Association
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇
Vice President
Main: 312/904-4130
Fax: 312/▇▇▇-▇▇▇▇
(WAIVER AND FOURTH AMENDMENT SIGNATURE PAGE)
FLEET NATIONAL BANK
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------------
Its: Senior Vice President
---------------------------------
Address:
Fleet National Bank
Mail Code: MA DE 100 0 6A
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇, Senior Vice President
Main: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
(WAIVER AND FOURTH AMENDMENT SIGNATURE PAGE)
▇▇▇▇▇▇ TRUST AND SAVINGS BANK
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------------------
Its: Managing Director
---------------------------------
Address:
▇▇▇▇▇▇ Trust and Savings Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Main: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
(WAIVER AND FOURTH AMENDMENT SIGNATURE PAGE)
BANK LEUMI USA
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------------
Its: First Vice President
---------------------------------
Address:
Bank Leumi USA
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇. ▇▇▇▇▇▇▇
Main: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
(WAIVER AND FOURTH AMENDMENT SIGNATURE PAGE)
▇▇▇▇▇ FARGO BANK WISCONSIN,
N.A., f/k/a Norwest Bank
Wisconsin, N.A.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------------
Its: Vice President
---------------------------------
Address:
▇▇▇▇▇ Fargo Bank Wisconsin N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Main: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇