JOINDER AGREEMENT
Exhibit 10.1
THIS JOINDER AGREEMENT, dated as of July 19, 2012 (this “Agreement”), by and among X.X. XXXXXX XXXXX BANK, N.A., CREDIT SUISSE AG, XXXXXXX SACHS BANK USA, and FIFTH THIRD BANK (each a “Lender” and collectively the “Lenders”), AUDATEX NORTH AMERICA, INC., a Delaware corporation, SOLERA NEDERLAND HOLDING B.V., a company organized under the laws of the Netherlands, AUDATEX HOLDINGS IV B.V., a company organized under the laws of the Netherlands (collectively, the “Borrowers”), AUDATEX HOLDINGS, LLC, a Delaware limited liability company (“Holdings”) and certain Subsidiaries of Holdings, as guarantors (“Guarantors”) and XXXXXXX XXXXX CREDIT PARTNERS L.P., as Administrative Agent.
RECITALS:
WHEREAS, reference is hereby made to the AMENDED AND RESTATED FIRST LIEN CREDIT AND GUARANTY AGREEMENT, dated as of April 13, 2012 (as it may be further amended, restated, supplemented or otherwise modified, the “Credit Agreement”; the terms defined therein and not otherwise defined herein being used herein as therein defined), by and among AUDATEX NORTH AMERICA, INC., a Delaware corporation (“U.S. Borrower”), SOLERA NEDERLAND HOLDING B.V., a company organized under the laws of The Netherlands (“EuroCo” and a “Euro Borrower”), AUDATEX HOLDINGS IV B.V., a company organized under the laws of The Netherlands (“EuroHoldco” and a “Euro Borrower;” together with EuroCo, the “Euro Borrowers;” and the Euro Borrowers, collectively with the U.S. Borrower, the “Borrowers”), AUDATEX HOLDINGS, LLC, a Delaware limited liability company (“Holdings”) and certain Subsidiaries of Holdings, as Guarantors, the Lenders party thereto from time to time, XXXXXXX SACHS CREDIT PARTNERS L.P., as Administrative Agent and Collateral Agent and JPMORGAN SECURITIES LLC, as Lead Arranger, Syndication Agent and Documentation Agent; and
WHEREAS, subject to the terms and conditions of the Credit Agreement, the Borrowers may increase the existing Revolving Commitments (such increase the “New Revolving Commitments”) and/or provide New Term Loan Commitments by entering into one or more Joinder Agreements with the New Revolving Lenders and/or New Term Loan Lenders, as applicable.
NOW, THEREFORE, in consideration of the premises and agreements, provisions and covenants herein contained, the parties hereto agree as follows:
Each Lender party hereto hereby agrees to commit to provide its respective Commitment as set forth on Schedule A annexed hereto, on the terms and subject to the conditions set forth below:
Each Lender (i) confirms that it has received a copy of the Credit Agreement and the other Credit Documents, together with copies of the financial statements referred to therein and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Agreement; (ii) agrees that it will, independently and without reliance upon the Administrative Agent or any other Lender or Agent and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Credit Agreement; (iii) appoints and authorizes Administrative Agent to take such action as agent on its behalf and to exercise such powers under the Credit Agreement and the other Credit Documents as are delegated to Administrative Agent, by the terms thereof, together with such powers as are reasonably incidental thereto; and (iv) agrees that it will perform in accordance with their terms all of the obligations which by the terms of the Credit Agreement are required to be performed by it as a Lender.
Each Lender hereby agrees to make its Commitment on the following terms and conditions:
| 1. | Applicable Margin. The Applicable Margin for each New Revolving Loan shall mean, as of any date of determination, 3.00% per annum for Eurodollar Rate Loans and 2.00% per annum for Base Rate Loans. |
| 2. | Upfront Fee. The Borrowers agree to pay to each New Revolving Lender an amount equal to 0.20% of the stated principal amount of such New Revolving Lender’s Commitment payable on the date hereof. |
| 3. | Commitment Fee. A Commitment Fee of 0.375% shall accrue on the unused amounts of the New Revolving Commitments. Commitment Fees shall accrue from the date hereof and are payable, on a pro rata basis, quarterly in arrears (calculated on a 365-day basis) and on the date of termination of the New Revolving Commitments. |
| 4. | Maturity Date. The New Revolving Loans shall mature on May 16, 2017. |
| 5. | New Lenders. Each New Revolving Lender acknowledges and agrees that upon its execution of this Agreement that such New Revolving Lender shall become a “Lender” under, and for all purposes of, the Credit Agreement and the other Credit Documents, and shall be subject to and bound by the terms thereof, and shall perform all the obligations of and shall have all rights of a Lender thereunder. |
| 6. | Credit Agreement Governs. Except as set forth in this Agreement, New Revolving Loans shall otherwise be subject to the provisions of the Credit Agreement and the other Credit Documents. |
| 7. | Borrowers’ Certifications. By its execution of this Agreement, the undersigned officer, to the best of his or her knowledge, and the Borrowers hereby certify that: |
| i. | the representations and warranties contained in the Credit Agreement and the other Credit Documents are true and correct in all material respects on and as of the date hereof to the same extent as though made on and as of the date hereof, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties were true and correct in all material respects on and as of such earlier date; |
| ii. | no event has occurred and is continuing or would result from the consummation of the Proposed Borrowing contemplated hereby that would constitute a Default or an Event of Default; and |
| iii. | the Borrowers have performed in all material respects all agreements and satisfied all conditions which the Credit Agreement provides shall be performed or satisfied by it on or before the date hereof. |
| 8. | Borrowers’ Covenants. By its execution of this Agreement, the Borrowers hereby covenant that: |
| i. | the Borrowers shall make any payments required pursuant to Section 2.18(c) of the Credit Agreement in connection with the New Revolving Commitments; |
2
| ii | the Borrowers shall deliver or cause to be delivered the following legal opinions and documents: the favorable written opinions of Xxxxxxxx & Xxxxx LLP, special New York counsel to the Credit Parties, and NautaDutilh N.V., Dutch counsel to the Euro Borrowers and the Dutch Guarantors, together with all other legal opinions and other documents reasonably requested by Administrative Agent in connection with this Agreement; and |
| iii. | the pro forma Leverage Ratio is equal to or less than 4.50:1.00, as determined on the basis of the financial statements delivered to the Administrative Agent on March 31, 2012. |
| 9. | Eligible Assignee. By its execution of this Agreement, each New Revolving Lender represents and warrants that it is an Eligible Assignee. |
| 10. | Notice. For purposes of the Credit Agreement, the initial notice address of each New Revolving Lender shall be as set forth below its signature below. |
| 11. | Non-US Lenders. For each New Revolving Lender that is a Non-US Lender, delivered herewith to Administrative Agent are such forms, certificates or other evidence with respect to United States federal income tax withholding matters as such New Revolving Lender may be required to deliver to Administrative Agent pursuant to Section 2.20(c) of the Credit Agreement. |
| 12. | Recordation of the New Loans. Upon execution and delivery hereof, Administrative Agent will record the New Revolving Loans made by New Revolving Lenders in the Register. |
| 13. | Amendment, Modification and Waiver. This Agreement may not be amended, modified or waived except by an instrument or instruments in writing signed and delivered on behalf of each of the parties hereto. |
| 14. | Entire Agreement. This Agreement, the Credit Agreement and the other Credit Documents constitute the entire agreement among the parties with respect to the subject matter hereof and thereof and supersede all other prior agreements and understandings, both written and verbal, among the parties or any of them with respect to the subject matter hereof. |
| 15. | APPLICABLE LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF. |
| 16. | Severability. In case any provision in or obligation hereunder or under any other Credit Document shall be invalid, illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining provisions or obligations, or of such provision or obligation in any other jurisdiction, shall not in any way be affected or impaired thereby. |
3
| 17. | Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed an original, but all such counterparts together shall constitute but one and the same instrument. |
[Remainder of page intentionally left blank]
4
IN WITNESS WHEREOF, each of the undersigned has caused its duly authorized officer to execute and deliver this Agreement as of June 25, 2012.
| X.X. Xxxxxx Chase Bank, N.A. | ||
| By: /s/ Xxxx Xxxxxx | ||
| Name: Xxxx Xxxxxx | ||
| Title: Executive Director | ||
| Notice Address: 000 Xxxxxxx Xxxxxxxxxx Xxxx, Ops 0, Xxxxx 00 | ||
| Xxxxxx, XX, 00000-0000, Xxxxxx Xxxxxx | ||
| Attention: Xxxx Xxxxxxxx | ||
| Telephone: 000-000-0000 | ||
| Facsimile: 000-000-0000 | ||
5
IN WITNESS WHEREOF, each of the undersigned has caused its duly authorized officer to execute and deliver this Agreement as of June 22, 2012.
| Credit Suisse AG |
| By: /s/ Xxxxxxx Xxxxx |
| Name: Xxxxxxx Xxxxx |
| Title: Director |
| By: /s/ Xxxxxxxxxx Xxxxxx |
| Name: Xxxxxxxxxx Xxxxxx |
| Title: Director |
| Notice Address: |
| Attention: |
| Telephone: |
| Facsimile: |
6
IN WITNESS WHEREOF, each of the undersigned has caused its duly authorized officer to execute and deliver this Agreement as of June 25, 2012.
| Xxxxxxx Xxxxx Bank USA |
| By: /s/ Xxxx Xxxxxx |
| Name: Xxxx Xxxxxx |
| Title: Authorized Signatory |
| Notice Address: 000 Xxxx Xx., Xxx Xxxx, XX, 00000 |
| Attention: Xxxxxxxx Xxxxxxx |
| Telephone: 000-000-0000 |
| Facsimile: 000-000-0000 |
7
IN WITNESS WHEREOF, each of the undersigned has caused its duly authorized officer to execute and deliver this Agreement as of June 21, 2012.
| Firth Third Bank |
| By: /s/ Xxxx Xxxxxx |
| Name: Xxxx Xxxxxx |
| Title: Vice President |
| Notice Address: 0000 Xxxxx Xxxxxx Xxxxxxx, Xxxxx 000, Xxxxxx, XX, 00000 |
| Attention: Xxxx Xxxxxx |
| Telephone: 000-000-0000 |
8
| AUDATEX NORTH AMERICA, INC. |
| By: /s/ Xxxx Xxxxxx |
| Name: Xxxx Xxxxxx |
| Title: Chief Executive Officer |
| SOLERA NEDERLAND HOLDING B.V. |
| By: /s/ Christian Hutzner |
| Name: Christian Hutzner |
| Title: Authorized Signatory |
| AUDATEX HOLDINGS IV B.V. |
| By: /s/ Christian Hutzner |
| Name: Christian Hutzner |
| Title: Authorized Signatory |
| AUDATEX HOLDINGS, LLC |
| By: /s/ Xxxx Xxxxxx |
| Name: Xxxx Xxxxxx |
| Title: Chief Executive Officer |
| AUDATEX CANADA HOLDINGS, INC. |
| By: /s/ Xxxx Xxxxxx |
| Name: Xxxx Xxxxxx |
| Title: Chief Executive Officer |
| AUDATEX HOLDINGS, INC. |
| By: /s/ Xxxx Xxxxxx |
| Name: Xxxx Xxxxxx |
| Title: Chief Executive Officer |
9
| COLLISION REPAIR BUSINESS MANAGEMENT SERVICES, LLC |
| By: /s/ Xxxx Xxxxxx |
| Name: Xxxx Xxxxxx |
| Title: Chief Executive Officer |
| CLAIMS SERVICES GROUP, INC. |
| By: /s/ Xxxx Xxxxxx |
| Name: Xxxx Xxxxxx |
| Title: Chief Executive Officer |
| XXXXXXXXX, INC. |
| By: /s/ Xxxx Xxxxxx |
| Name: Xxxx Xxxxxx |
| Title: Chief Executive Officer |
| PROPERTY CLAIMS SERVICES, INC. |
| By: /s/ Xxxx Xxxxxx |
| Name: Xxxx Xxxxxx |
| Title: Chief Executive Officer |
| SOLERA, INC. |
| By: /s/ Xxxx Xxxxxx |
| Name: Xxxx Xxxxxx |
| Title: Chief Executive Officer |
| EXPLORE INFORMATION SERVICES, LLC |
| By: /s/ Xxxxx Xxxxx |
| Name: Xxxxx Xxxxx |
| Title: Secretary |
10
| SOLERA INTEGRATED MEDICAL SOLUTIONS, INC. |
| By: /s/ Xxxx Xxxxxx |
| Name: Xxxx Xxxxxx |
| Title: Chief Executive Officer |
| AUDATEX HOLDINGS III B.V. |
| By: /s/ Christian Hutzner |
| Name: Christian Hutzner |
| Title: Authorized Signatory |
| AUDATEX NETWORK SERVICES NETHERLANDS B.V. |
| By: /s/ Christian Hutzner |
| Name: Christian Hutzner |
| Title: Authorized Signatory |
| SOLERA NEDERLAND HOLDING B.V. |
| By: /s/ Christian Hutzner |
| Name: Christian Hutzner |
| Title: Authorized Signatory |
| SOLERA NEDERLAND B.V. |
| By: /s/ Christian Hutzner |
| Name: Christian Hutzner |
| Title: Authorized Signatory |
11
| AUDATEX DEUTSCHLAND GMBH |
| By: /s/ Xxxxxxxxx Xxxxx |
| Name: Xxxxxxxxx Xxxxx |
| Title: Managing Director |
| ARGEMU HOLDING GMBH |
| By: /s/ Xxxxxxxxx Xxxxx |
| Name: Xxxxxxxxx Xxxxx |
| Title: Managing Director |
| AUDATEX DATEN INTERNATIONALE DATENENTWICKLUNGSGESELLSCHAFT MBH |
| By: /s/ R. Ryme |
| Name: R. Ryme |
| Title: Managing Director |
| EXSOFT GMBH |
| By: /s/ Xxxx Xxxx |
| Name: Xxxx Xxxx |
| Title: Managing Director |
| By: /s/ Jens Dürasch |
| Name: Jens Dürasch |
| Title: Managing Director |
| AUDATEX GMBH |
| By: /s/ Xxxxxxx Xxxxxxxx |
| Name: Xxxxxxx Xxxxxxxx |
| Title: Manager |
12
| AUDATEX (SCHWEIZ) GMBH |
| By: /s/ Xxxxxxx Xxxxxxxx |
| Name: Xxxxxxx Xxxxxxxx |
| Title: Manager |
| AUDATEX CANADA, ULC |
| By: /s/ Xxxxx Xxxxx |
| Name: Xxxxx Xxxxx |
| Title: Secretary |
| AUDATEX HOLDINGS II S.ÀR.L. |
| By: /s/ Xxxxx Bagnous |
| Name: Xxxxx Bagnous |
| Title: Manager |
| AUDATEX (UK) LIMITED |
| By: /s/ Xxxxxx Xxxxx |
| Name: Xxxxxx Xxxxx |
| Title: Chairman |
| HPI HOLDING LIMITED |
| By: /s/ Xxxxxx Xxxxx |
| Name: Xxxxxx Xxxxx |
| Title: Chairman |
| HPI LIMITED |
| By: /s/ Xxxxxx Xxxxx |
| Name: Xxxxxx Xxxxx |
| Title: Chairman |
13
| Consented to by: | ||
| XXXXXXX XXXXX CREDIT PARTNERS L.P., as Administrative Agent | ||
| By: | /s/ Xxxxxx Xxxxxxxx | |
| Authorized Signatory | ||
14
SCHEDULE A
On file with the Administrative Agent
15
