EXHIBIT 10.7
SIXTH AMENDMENT AND WAIVER
SIXTH AMENDMENT AND WAIVER, dated as of October 4, 2001 (this
"Amendment"), to the Credit Agreement, dated as of February 27, 1997, as amended
and restated as of February 10, 1998, and as further amended by the First
Amendment, dated as of June 30, 1998, the Second Amendment, dated as of February
12, 1999, the Third Amendment, dated as of May 25, 1999, the Fourth Amendment,
dated as of December 21, 1999, and the Fifth Amendment and Waiver, dated as of
December 28, 2000 (as further amended, supplemented or modified from time to
time, the "Credit Agreement"), among Cooperative Computing, Inc., a Delaware
corporation (the "Borrower"), Cooperative Computing Holding Company, Inc., a
Delaware corporation, as guarantor ("CCI"), the several banks and other
financial institutions parties thereto (the "Lenders") and The Chase Manhattan
Bank, as the administrative agent for the Lenders (in such capacity, the
"Administrative Agent").
WITNESSETH:
WHEREAS, pursuant to the Credit Agreement, the Lenders have agreed to
make, and have made, certain loans and other extensions of credit to the
Borrower;
WHEREAS, the Borrower has requested that the Administrative Agent, with
the consent of the Required Lenders, amend certain provisions of the Credit
Agreement; and
WHEREAS, the Administrative Agent and the Lenders are willing to agree
to the requested amendments on the terms and conditions contained herein;
NOW, THEREFORE, the parties hereto hereby agree as follows:
I. Defined Terms. Terms defined in the Credit Agreement and used herein
shall have the meanings given to them in the Credit Agreement, as amended
hereby.
II. Amendments to Credit Agreement.
1. Amendment to Section 1.1. Section 1.1 of the Credit Agreement is
hereby amended by deleting therefrom the definition of "Consolidated EBITDA" in
its entirety and substituting in lieu thereof the following:
"Consolidated EBITDA": for any period, with respect to any
Person, Consolidated Net Income of such Person for such period (A)
plus, without duplication and to the extent reflected as a charge in
the statement of such Consolidated Net Income for such period, the sum
of (i) total income and franchise tax expense, (ii) interest expense,
amortization or writeoff of debt discount and debt issuance costs and
commissions and discounts and other fees and charges associated with
Indebtedness, (iii) depreciation and amortization expense, (iv)
amortization of intangibles including, but not
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limited to, goodwill and organization costs (including, with respect to
the Borrower, costs associated with the Offer to Purchase dated October
23, 1996 made by a subsidiary of CCI to purchase the common stock of
the Borrower), (v) other extraordinary noncash charges (in accordance
with GAAP) (including non-cash currency exchange losses), (vi) any
extraordinary and unusual losses (including losses on sales of assets
other than inventory sold in the ordinary course of business), (vii)
(x) any cash restructuring charges substantially consistent with those
restructuring charges previously disclosed to the Administrative Agent
and the Lenders by the Borrower up to a maximum aggregate amount in the
case of such charges of $2,500,000 during the term of this Agreement
and (y) additional cash restructuring charges not to exceed $1,250,000
in the aggregate during the term of this Agreement, (viii) any non-cash
restructuring charges, and (ix) any non-cash losses resulting from the
Borrower's investment in Internet Autoparts, Inc.; and (B) minus,
without duplication and to the extent reflected as a credit or gain in
the statement of such Consolidated Net Income for such period, the sum
of (i) any extraordinary and unusual gains (including gains on the
sales of assets, other than inventory sold in the ordinary course of
business), (ii) other extraordinary noncash credits or gains (in
accordance with GAAP) (including non-cash currency exchange gains) and
(iii) any non-cash gains resulting from the Borrower's investment in
Internet Autoparts, Inc.; provided that for the purposes of calculating
Consolidated EBITDA for any period of four consecutive fiscal quarters
(each, a "Reference Period") for purposes of Section 8.1, (i) if at any
time during such Reference Period the Borrower or any Subsidiary shall
consummate an acquisition pursuant to Section 8.9(k) or 8.9(l), the
Consolidated EBITDA for such Reference Period shall be calculated on a
pro forma basis (assuming the consummation of such acquisition and the
incurrence or assumption of any Indebtedness in connection therewith
occurred on the first day of such Reference Period) and (ii) if at any
time during such Reference Period the Borrower or any Subsidiary shall
consummate the Designated Asset Sale or the sale of any line of
business or product line, the Consolidated EBITDA for such Reference
Period shall be reduced on a pro forma basis by an amount equal to the
Consolidated EBITDA (if positive) attributable to the property that is
the subject of the Designated Asset Sale or the sale of any line of
business or product line (the "Reduced EBITDA").
2. Amendments to Section 8. (a) Section 8.1(a) of the Credit Agreement
is hereby amended by deleting the columns captioned "Quarter Ending" and "Ratio"
from paragraph (a) thereof and substituting in lieu thereof the following:
Quarter Ending Ratio
-------------- -----
2000 December 31 1.50 to 1.00
2001 March 31 1.50 to 1.00
June 30 1.60 to 1.00
September 30 1.70 to 1.00
December 31 1.75 to 1.00
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Quarter Ending Ratio
-------------- -----
2002 March 31 1.75 to 1.00
June 30 1.80 to 1.00
September 30 1.80 to 1.00
December 31 3.00 to 1.00
and each
quarter
thereafter
(b) Section 8.1(c) of the
Credit Agreement is hereby amended by
deleting the columns captioned "Quarter Ending" and "Amount" from Section 8.1(c)
and substituting in lieu thereof the following:
Quarter Ending Ratio
-------------- -----
1998 December 31 $32,500,000
1999 March 31 32,500,000
June 30 32,500,000
September 30 32,500,000
December 31 25,000,000
2000 March 31 23,500,000
June 30 27,000,000
September 30 27,500,000
December 31 28,000,000
2001 March 31 29,000,000
June 30 30,000,000
September 30 31,000,000
December 31 32,000,000
2002 March 31 32,500,000
June 30 33,000,000
September 30 34,000,000
December 31 52,500,000
2003 March 31 55,000,000
June 30 57,500,000
September 30 60,000,000
and each
quarter
thereafter
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(c) Section 8.1(e) of the Credit Agreement is hereby amended by
deleting the columns captioned "Quarter Ending" and "Ratio" from Section 8.1(e)
and substituting in lieu thereof the following:
Quarter Ending Ratio
-------------- -----
1998 December 31 2.75 to 1.00
1999 March 31 2.75 to 1.00
June 30 2.75 to 1.00
September 30 2.75 to 1.00
December 31 4.00 to 1.00
2000 March 31 4.00 to 1.00
June 30 4.00 to 1.00
September 30 3.25 to 1.00
December 31 3.20 to 1.00
2001 March 31 3.10 to 1.00
June 30 3.00 to 1.00
September 30 3.00 to 1.00
December 31 2.65 to 1.00
2002 March 31 2.65 to 1.00
June 30 2.55 to 1.00
September 30 2.40 to 1.00
December 31 2.75 to 1.00
and each
quarter
thereafter
III. Waiver of Section 8.1(d) of the Credit Agreement. The
Administrative Agent and the Lenders hereby agree to waive (a) the Borrower's
compliance with the requirements of Section 8.1(d) through and including
September 30, 2002 and (b) any breach resulting from any failure to comply with
such requirements.
IV. Conditions to Effectiveness. This Amendment shall become effective
on the date (the "Sixth Amendment Effective Date") (a) on which this Amendment
shall have been (i) executed by the Borrower, CCI, the Administrative Agent and
the Required Lenders and (ii) acknowledged and consented to by the other Credit
Parties, each in accordance with the terms of the Credit Agreement and (b) the
Administrative Agent shall have received, for the account of each Lender
executing this Amendment by 5:00 p.m. (
New York time) on October 4, 2001, an
amendment fee in an amount equal to 0.25% of the sum of such Lender's (i)
Revolving Credit Commitment and (ii) outstanding Term Loans as of such date.
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V. General.
1. Representations and Warranties. (a) The representations and
warranties made by the Borrower in the Loan Documents are true and correct in
all material respects on and as of the date hereof, after giving effect to the
effectiveness of this Amendment, as if made on and as of the date hereof, except
for any representation and warranty which is expressly made as of an earlier
date which representation and warranty shall have been true and correct in all
material respects as of such earlier date, and no Default or Event of Default
has occurred and is continuing.
(b) As of the date hereof, each of CCI and its Subsidiaries has
delivered all Collateral required to be delivered by it to the Administrative
Agent pursuant to the terms of any Security Document.
2. Payment of Expenses. The Borrower agrees to pay or reimburse the
Administrative Agent for all of its out-of-pocket costs and reasonable expenses
incurred in connection with this Amendment, any other documents prepared in
connection herewith and the transactions contemplated hereby, including, without
limitation, the reasonable fees and disbursements of counsel to the
Administrative Agent.
3. No Other Amendments; Confirmation. Except as expressly amended,
modified and supplemented hereby, the provisions of the Credit Agreement and the
Notes are and shall remain in full force and effect.
4. Affirmation of Guarantees. Each of the Guarantors hereby consents to
the execution and delivery of this Amendment and to the transactions
contemplated hereby or in any related document and reaffirms its obligations
under the Guarantee and Collateral Agreement executed by such Guarantor.
5. Governing Law; Counterparts. (a) This Amendment and the rights and
obligations of the parties hereto shall be governed by, and construed and
interpreted in accordance with, the laws of the State of
New York.
(b) This Amendment may be executed by one or more of the parties to
this Agreement on any number of separate counterparts, and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument. A set of the copies of this Amendment signed by all the parties
shall be lodged with the Borrower and the Administrative Agent. This Amendment
may be delivered by facsimile transmission of the relevant signature pages
hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their respective proper and duly authorized
officers as of the day and year first above written.
COOPERATIVE COMPUTING, INC.
By:
---------------------------------------
Name:
Title:
COOPERATIVE COMPUTING HOLDING
COMPANY, INC.,
as a Guarantor
By:
---------------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK,
as Administrative Agent,
a Lender and Issuing Lender
By:
---------------------------------------
Name:
Title:
BANK AUSTRIA CREDITANSTALT
CORPORATE FINANCE, INC.
By:
---------------------------------------
Name:
Title:
By:
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Name:
Title:
UNION BANK OF CALIFORNIA, N.A.
By:
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Name:
Title:
XXX XXXXXX CLO I, LIMITED
By: Xxx Xxxxxx American Capital
Management, Inc., as Collateral Manager
By:
---------------------------------------
Name:
Title:
COMMERCIAL LOAN FUNDING TRUST I
By: Xxxxxx Commercial Paper Inc., not in
its individual capacity but solely as
administrative agent
By:
---------------------------------------
Name:
Title:
ALLSTATE LIFE INSURANCE COMPANY
By:
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Name:
Title:
By:
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Name:
Title:
ALLSTATE INSURANCE COMPANY
By:
---------------------------------------
Name:
Title:
By:
---------------------------------------
Name:
Title:
KZH CYPRESSTREE-1 LLC
By:
---------------------------------------
Name:
Title:
AIMCO CDO SERIES 2000-A
By:
---------------------------------------
Name:
Title:
COMERICA BANK CALIFORNIA
(FORMERLY IMPERIAL BANK)
By:
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Name:
Title:
BANK OF AMERICA, N.A.
By:
---------------------------------------
Name:
Title:
WASHINGTON MUTUAL BANK FA.
SUCCESSOR IN INTEREST BY MERGER TO BANK
UNITED
By:
---------------------------------------
Name:
Title: FLEET NATIONAL BANK
FKA BANKBOSTON, NA
By:
---------------------------------------
Name:
Title:
The undersigned Credit Parties do hereby consent and agree to
the foregoing Amendment and acknowledge and agree that (i) all obligations of
the Borrower under the Credit Agreement, as amended by the foregoing Amendment,
are Obligations which are secured and guaranteed by the Security Documents to
which it is a party, (ii) all references to the Credit Agreement in the Security
Documents refer to the Credit Agreement, as amended from time to time (including
pursuant to the foregoing Amendment), and (iii) all references to Loans in the
Security Documents refer to the Loans under the Credit Agreement.
TRIAD SYSTEMS FINANCIAL CORPORATION
TRIAD DATA CORPORATION
TRIFARE, INC.
CCI/TRIADGEM, INC.
TRIAD SYSTEMS CORPORATION
CCI/ARD, INC.
By:
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Name:
Title:
