EXHIBIT 10.11
SUBORDINATION AGREEMENT
THIS SUBORDINATION AGREEMENT, dated as of November 30, 2001 (this
"Agreement"), by and among LaSalle Bank National Association, as administrative
agent (together with any successor thereto in such capacity, the "Agent") for
itself and the Lenders (as defined below), White River Ventures, Inc., a
Delaware corporation (together with its successors and assigns, "White River"),
Capricorn Investors II, L.P., a Delaware limited partnership (together with its
successors and assigns, "Capricorn II") and Capricorn Investors III, L.P., a
Delaware limited partnership (together with its successors and assigns,
"Capricorn III") (White River, Capricorn II and Capricorn III are referred to
herein collectively as the "Subordinate Creditors" and each individually as a
"Subordinate Creditor").
INTRODUCTION
Agent, Lenders and CCC Information Services Inc., a Delaware
corporation (together with its successors and assigns, "Borrower") desire to
enter into the Second Amended and Restated Credit Facility Agreement dated as of
November 30, 2001 (as amended, supplemented or otherwise modified from time to
time, together with any renewals or extensions thereof, the "Credit Agreement"),
pursuant to which the Lenders will, subject to the terms and conditions thereof,
make certain loans and extend other financial accommodations to Borrower. CCC
Information Services Group Inc., a Delaware corporation (together with its
successors and assigns, "Guarantor") owns all of the issued and outstanding
capital stock of Borrower and will guaranty all of Borrowers obligations to the
Lenders under the Credit Agreement. Lenders have required among other things, as
conditions to entering into the Credit Agreement, that Guarantor receive on the
closing date of the Credit Agreement at least $18,800,000 in net cash proceeds
from the sale of its common stock and/or its unsecured subordinated notes and
that Borrower will receive from Guarantor at least $18,800,000 of such net cash
proceeds in exchange for an unsecured subordinated inter-company promissory note
issued by Borrower to Guarantor. The Subordinate Creditors intend to purchase
certain unsecured subordinated notes more fully described below from Guarantor.
The parties are entering into this Agreement to subordinate the obligations
under such notes and related agreements and instruments to the obligations of
Guarantor and Borrower to the Lenders. Guarantor and the Subordinate Creditors
will receive substantial direct and indirect benefits from the extension of such
loans and financial accommodations to Borrower under the Credit Agreement.
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions. As used herein, the following terms shall have
the meanings specified below:
"Allowed Payment" means any cash payment on the Subordinated Notes or
under related agreements and instruments that is expressly permitted pursuant to
Section 3.1(b)(i) or (ii) hereof.
"Common Stock" means the common stock, $.10 per share par value, of
Guarantor.
"Default" shall mean any "Event of Default" under Section 7.1.1
(Payment Obligations) or Section 7.1.10 (Insolvency) of the Credit Agreement.
"Guaranty" shall mean that certain Amended and Restated Guaranty dated
as of November 30, 2001, issued by Guarantor in favor of Agent, as amended,
restated or otherwise modified from time to time.
"Insolvency Event" shall have the meaning given to such term in Section
3.2(a) hereof.
"Junior Securities" means any debt instrument or security or equity
security (other than Common Stock) issued in substitution, exchange or
replacement of, or in payment for, any of the Subordinated Notes including,
without limitation, any "junior securities" issued by Guarantor to the
Subordinate Creditors pursuant to Section 4.2(b) of the Purchase Agreement.
"Lenders" shall mean certain financial institutions that are or may
from time to time become parties to the Credit Agreement.
"Loan Documents" shall have the meaning contained in the Credit
Agreement.
"Person" shall have the meaning contained in the Credit Agreement.
"Purchase Agreement" means that certain Purchase Agreement dated as of
November 29, 2001, by and among Guarantor, Subordinate Creditors and other
parties named therein, as the same may be hereafter amended, supplemented or
otherwise modified from time to time.
"Rights Proceeds" means the net cash proceeds received by Guarantor
from the sale of its Common Stock pursuant to the rights offering, other than
proceeds received from the Subordinate Creditors.
"Senior Debt" shall mean all of the following: (i) all obligations of
Borrower to Agent and the Lenders now or hereafter existing under the Credit
Agreement and the other Loan Documents, whether for principal, interest
(including interest accruing after the occurrence of an Insolvency Event whether
or not the same is allowed as a claim), prepayment premium, fees, expenses or
otherwise including, without limitation, the Obligations (as defined in the
Credit Agreement); (ii) all indebtedness of Borrower to Agent and the Lenders a
portion of the proceeds of which are used to refinance or replace any of the
foregoing, whether such indebtedness increases or decreases the aggregate
principal amount of Senior Debt, the interest rate or fees payable with respect
to Senior Debt, the maturity dates or dates of scheduled payments on Senior
Debt, or any other term or provision of Senior Debt; (iii) all Hedging
Obligations (as defined in the Credit Agreement) of Borrower to a Lender or any
Affiliate (as defined in the Credit Agreement) of a Lender; and (iv) all
obligations of Guarantor to Agent and/or the Lenders under the Guaranty.
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"Senior Lender" shall mean LaSalle Bank National Association in its
capacity as Agent, together with any successor thereto in such capacity.
"Subordinated Debt" shall mean, collectively, any and all obligations
of Guarantor (i) under the Purchase Agreement, Subordinated Notes and any
related agreement or instrument, whether for principal, interest, purchase
price, premium, fees, costs, indemnification or otherwise, and including,
without limitation, any amounts payable as damages or for rescission under any
cause of action arising out of or relating to the issuance of the Subordinated
Notes and (ii) under any Junior Securities, whether for principal, interest,
purchase price, redemption obligation, premium, fees, costs, indemnification or
otherwise, and including, without limitation, any amounts payable as damages or
for rescission under any cause of action arising out of or relating to the
issuance of such Junior Securities.
"Subordinated Notes" shall mean, collectively, (i) that certain
Subordinated Promissory Note dated as of November 30, 2001, issued by Guarantor
to White River in the original principal amount of $10,712,180.06, and any
amendments, modifications, renewals or extensions thereof, (ii) that certain
Subordinated Promissory Note dated as of November 30, 2001, issued by Guarantor
to Capricorn II in the original principal amount of $421,052.50, and any
amendments, modifications, renewals or extensions thereof, and (iii) that
certain Subordinated Promissory Note dated as of November 30, 2001, issued by
Guarantor to Capricorn III in the original principal amount of $377,908.00, and
any amendments, modifications, renewals or extensions thereof.
"Subordinated Note Obligations" means, collectively, (a) the
$11,511,140.50 principal amount of the Subordinated Notes, (b) any interest that
has accrued on the Subordinated Notes through the applicable payment date, at a
rate per annum less than or equal to the rate applicable to "Prime Rate
Advances" under the Credit Agreement during such period, (c) costs and expenses
in the amount of $150,000, and (d) third party legal expenses incurred by the
Subordinate Creditors in connection with the Purchase Agreement and transactions
contemplated thereby.
"Surplus Investments" means, the cash paid by the Subordinate Creditors
to the Guarantor for the Subordinate Notes and/or Common Stock pursuant to the
Purchase Agreement in the aggregate in excess of $18,800,000.
ARTICLE II
REPRESENTATIONS OF SUBORDINATE CREDITORS
SECTION 2.1 Representations and Warranties. Each Subordinate Creditor
hereby represents and warrants to Senior Lender as follows:
(a) Attached hereto as Exhibit A is a full, complete and correct
copy of the Subordinated Notes issued to such Subordinate Creditor and Purchase
Agreement and such documents have not been modified and are in full force and
effect. There are no agreements or understandings relating to the Subordinated
Debt between Borrower and such Subordinate Creditor that are not fully and
accurately described in such Exhibit A.
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(b) This Agreement has been duly executed and delivered by such
Subordinate Creditor, and is the valid and binding obligation of such
Subordinate Creditor, enforceable against such Subordinate Creditor in
accordance with its terms.
(c) Such Subordinate Creditor has, on the date hereof, paid to
Guarantor cash in the amount set forth opposite its name on Exhibit B hereto in
consideration for the Subordinated Note and Common Stock issued to such
Subordinate Creditor as set forth on Exhibit B hereto.
ARTICLE III
SUBORDINATION TO SENIOR DEBT
SECTION 3.1 Subordination.
(a) General. Notwithstanding anything in the Purchase Agreement,
Subordinated Notes, any Junior Securities or any related agreement or instrument
to the contrary, each Subordinate Creditor agrees and covenants that the
Subordinated Debt is and shall be subordinate in right of payment to the prior
payment in full of the Senior Debt. The Senior Debt shall not be deemed to have
been paid in full until the Credit Agreement shall have been terminated as
provided therein and Senior Lender and the Lenders shall have received
indefeasible payment in full of the Senior Debt in cash.
(b) Permitted Payments. Except as otherwise provided in this
Article III, notwithstanding the general payment subordination set forth in
Section 3.1(a), Guarantor may pay in the Subordinate Creditors on account of the
Subordinated Notes solely as follows:
(i) In the event that the Rights Offering (as defined in the
Purchase Agreement) is completed by the Standby Commitment Closing
Date (as defined in the Purchase Agreement), Guarantor may pay the
Subordinate Creditors in cash on account of the Subordinated
Notes, all or any part of the Subordinated Note Obligations if,
and only to the extent that (A) at the time of any such Allowed
Payment no Default has occurred and is continuing and no Default
would result from the making of such Allowed Payment and (B) such
Allowed Payment is made solely from (x) the Rights Proceeds or (y)
Surplus Investments and (C) after giving effect to such Allowed
Payment, Guarantor shall have received cash investments pursuant
to the Purchase Agreement and Rights Offering aggregating at least
$18,800,000 that have not been repaid and that are evidenced by
Common Stock.
(ii) In the event that the Rights Offering is not consummated
or is otherwise terminated by the date that is 75 days following
the date hereof, Guarantor may (a) issue Junior Securities in
payment of all or any part of the Subordinated Note Obligations
pursuant to the Purchase Agreement, provided, that such Junior
Securities will be subordinated to the Senior Debt pursuant to
this Agreement, shall not require payment, whether for principal,
interest, cash dividends or otherwise, or require redemption or
any payment in respect thereof, for at least 180 days after the
Senior Debt is paid in full and the Credit Agreement shall have
terminated and shall otherwise have
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terms, covenants and conditions that are reasonably acceptable to
the Senior Lenders and (b) may pay in cash on account of the
Subordinated Notes, all or any part of the Subordinated Note
Obligations if, and only to the extent that (A) at the time of
any such Allowed Payment no Default has occurred and is
continuing and no Default would result from the making of such
Allowed Payment and (B) such Allowed Payment is made from the
Surplus Investments, and (C) after giving effect to such Allowed
Payment, Guarantor shall have received cash investments
aggregating at least $18,800,000 pursuant to the Purchase
Agreement that have not been repaid and that are evidenced by
Common Stock or Junior Securities.
(iii) In any event, the Guarantor may issue Common Stock in
payment for all or any part of the Subordinated Note Obligations.
In no event shall any Subordinate Creditor be entitled to receive
any whole or partial prepayments of principal, or any accelerated or rescheduled
payments of principal or interest, or interest at any rate greater than that
provided for as of the date hereof, or any payment from any source other than
the Rights Proceeds or Surplus Investments, or any payment (other than cash,
Common Stock or Junior Securities to the extent expressly provided herein) on
account of the Subordinated Debt without the prior written consent of Senior
Lender. Nothing herein shall prohibit the Guarantor from issuing the warrants
exercisable for Common Stock contemplated by the Purchase Agreement or Common
Stock issuable upon the exercise of such warrants.
SECTION 3.2 Priority and Payment Over of Proceeds in Certain Events.
(a) Insolvency or Dissolution of Guarantor. Upon any payment or
distribution of all or any of the assets or securities of Guarantor of any kind
or character, whether in cash, property or securities, upon any dissolution,
winding up, liquidation, reorganization, arrangement, adjustment, protection,
relief or composition of Guarantor or its debts, whether voluntary or
involuntary or in bankruptcy, insolvency, receivership, arrangement,
reorganization, relief or other proceedings, or upon an assignment for the
benefit of creditors or any other marshaling of the assets and liabilities of
Guarantor or otherwise (any such event being an "Insolvency Event"), all Senior
Debt shall first be paid in full before any Subordinate Creditor shall be
entitled to receive any payment of the Subordinated Debt. Upon the occurrence of
any Insolvency Event, any payment or distribution of assets or securities of
Guarantor of any kind or character, whether in cash, property or securities, to
which any Subordinate Creditor would be entitled, except for the provisions of
this Article III, shall be made by Guarantor or by any receiver, trustee in
bankruptcy, liquidating trustee, agent or other person making such payment or
distribution, directly to Senior Lender for application (in the case of cash) to
or as collateral (in the case of non-cash property or securities) for the
payment in full of all Senior Debt after giving effect to any concurrent payment
or distribution to Senior Lender or any Lender on the Senior Debt.
(b) Default under Credit Agreement. No direct or indirect payment
in respect of the Subordinated Debt shall be made by Guarantor or received by
any Subordinate Creditor if, at the time of such payment, there exists any
Default and such Default shall not have been cured or waived in writing by
Senior Lender or the benefits of this sentence waived in writing by
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Senior Lender. In the absence of a written notice to the Subordinate Creditors
of the occurrence of a Default from Senior Lender, each of the Subordinate
Creditors (but not Guarantor) shall be entitled to assume that a Default does
not exist and may retain any payment received by it, unless the Subordinate
Creditor knows of the existence of such Default.
(c) Demand for or Acceleration of Payment of Subordinated Debt. In
the event that the Subordinated Debt is declared due and payable or the maturity
thereof is accelerated for any reason, then and in such event, Senior Lender and
the Lenders shall be entitled to receive payment in full of all amounts due or
to become due on or in respect of the Senior Debt (whether or not a Default has
occurred thereunder or such Senior Debt is, or has been declared to be, due and
payable prior to the date on which it otherwise would have become due and
payable) before the any Subordinate Creditor shall be entitled to receive any
payment of the Subordinated Debt.
(d) Certain Payments Held in Trust. In the event that,
notwithstanding the foregoing provisions prohibiting such payment or
distribution, any Subordinate Creditor shall have received any payment or
distribution in respect of the Subordinated Debt contrary to such provisions,
then and in such event such payment or distribution shall be received and held
in trust for Senior Lender and the Lenders and shall be paid over or delivered
to Senior Lender for application (in the case of cash) to or as collateral (in
the case of non-cash property or securities) for the payment or prepayment of
all Senior Debt in full after giving effect to any concurrent payment or
distribution to Senior Lender and the Lenders in respect of the Senior Debt.
SECTION 3.3 Suspension of Remedies. Until all of the Senior Debt has
been finally paid in cash, no Subordinate Creditor shall, directly or
indirectly, (i) demand, xxx for any payment or distribution or exercise any
other remedy such Subordinate Creditor may have in respect of the Subordinated
Debt, or (ii) commence, or join with any other creditor (other than Senior
Lender and/or the Lenders) in commencing, any Insolvency Event. Notwithstanding
the foregoing, a Subordinate Creditor may (a) file such court proceedings
against Guarantor as may be necessary under applicable law solely to prevent the
expiration of an applicable statute of limitations in respect of any claim or
cause of action in respect of the Subordinated Debt, provided, that (i)
Subordinate Creditor shall provide Senior Lender with not less than ten (10)
days prior written notice to Senior Lender of the commencement of such court
proceedings against Guarantor and (ii) in no event shall Subordinate Creditor be
permitted to seek any enforcement remedy, obtain a judgment lien or execute on
any judgment so obtained against Guarantor until the Credit Agreement shall have
terminated as provided therein and the Senior Lenders shall have received
indefeasible payment in full of the Senior Debt in cash or (b) file proofs of
claim reasonably acceptable to Senior Lender in any bankruptcy, insolvency or
similar proceeding relating to the Guarantor, provided that the Subordinate
Creditor filing such proof of claim shall, promptly after the filing thereof,
deliver to Senior Lender such proxies, powers of attorney or other instruments
necessary to enable Senior Lender to exercise all voting and consent rights
relating to the claim in such proceedings.
SECTION 3.4 Rights of Senior Lender Not to be Impaired. No right of
Senior Lender to enforce subordination as herein provided shall at any time in
any way be prejudiced or impaired by any act or failure to act in good faith by
Senior Lender or the Lenders, or by any noncompliance by Guarantor or Borrower,
with the terms, provisions and covenants herein,
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regardless of any knowledge thereof Senior Lender or the Lenders may otherwise
be charged with. The provisions of this Article III are intended to be for the
benefit of the Senior Lender and the Lenders, and shall be enforceable directly
by Senior Lender.
SECTION 3.5 Actions to Effectuate Subordination.
(a) Authorization to Senior Lender to Act. Senior Lender is hereby
irrevocably authorized and empowered (in its own name or in the name of any
Subordinate Creditor or otherwise), at its sole cost and expense but shall have
no obligation, to demand, xxx for, collect and receive every payment or
distribution referred to in Section 3.2(a) above and to give acquittance
therefore and to file claims and proofs of claim and take such other action
(including, without limitation, voting the Subordinated Debt or enforcing any
security interest or other lien securing payment of the Subordinated Debt) as it
may deem necessary or advisable for the exercise or enforcement of any of its
rights or interests in respect of the Senior Debt. Senior Lender will promptly
notify the applicable Subordinate Creditor of the exercise of any such power,
but the failure to give such notice shall not invalidate any such exercise.
(b) Subordinate Creditors to Take Certain Actions. Each
Subordinate Creditor shall duly and promptly take such action as Senior Lender
may reasonably request (i) to collect the Subordinated Debt for the account of
Senior Lender and the Lenders and to file appropriate claims or proofs of claim
in respect of the Subordinated Debt, (ii) to execute and deliver to Senior
Lender such powers of attorney, assignments or other instruments as Senior
Lender may reasonably request in order to enable it to enforce any and all
claims with respect to, and any security interests and other liens securing
payment of, the Subordinated Debt, (iii) to collect and receive any and all
payments or distributions that may be payable or deliverable upon or with
respect to the Subordinated Debt, and (iv) to effectuate any other provision
hereof.
(c) Specific Performance. Senior Lender is hereby authorized to
demand specific performance of the provisions of this Article, at any time when
any Subordinate Creditor shall have failed to comply with any of the provisions
of this Article. Each Subordinate Creditor hereby irrevocably waives any defense
based on the adequacy of a remedy at law that might be asserted as a bar to such
remedy of specific performance. Each Subordinate Creditor hereby acknowledges
that the provisions of this Article are intended to be enforceable at all times,
whether before or after the commencement of an Insolvency Event.
SECTION 3.6 Subordination Legend-- Further Assurances.
Each Subordinate Creditor will cause the Subordinated Notes and each
other instrument now or hereafter held by it evidencing the Subordinated Debt,
to be endorsed with the following legend:
The indebtedness evidenced by this instrument is subordinated
to the prior payment in full of certain Senior Debt (as
defined in the Subordination Agreement hereinafter referred
to) pursuant to, and to the extent provided in, that certain
Subordination Agreement dated November 30, 2001 in favor of
LaSalle Bank National Association, as Administrative Agent for
itself and certain other
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financial institutions. This instrument may not be offered,
sold or otherwise transferred until the purchaser, assignee
or transferee has become a party to and bound by such
Subordination Agreement.
Each Subordinate Creditor will further xxxx its books of account in
such a manner as shall be effective to give proper notice of the effect of this
Agreement, and will, in the case of any Subordinated Debt which is not evidence
by any instrument, upon Senior Lender's request cause such Subordinated Debt to
be evidenced by an appropriate instrument or instruments endorsed with the above
legend. Each Subordinate Creditor will, and at any time and from time to time,
promptly execute and deliver all further instruments and documents, and take all
further action, that may be necessary or desirable, or that Senior Lender may
request in order to protect any right or interest granted or purported to be
granted hereby or to enable Senior Lender to exercise and enforce its rights and
remedies hereunder and the reasonable expenses actually incurred by such
Subordinate Creditor in connection therewith shall be paid to such Subordinate
Creditor by Guarantor.
SECTION 3.7 Miscellaneous.
(a) All rights and interests of Senior Lender under this Article
III, and all agreements and obligations of the each Subordinate Creditor under
this Article III, shall remain in full force and effect irrespective of:
(i) any lack of validity or enforceability of the Credit
Agreement or any of the other Loan Documents;
(ii) any change in the time, manner or place of payment of,
or in any other term of, all or any of the Senior Debt, or any
other amendment or waiver of or any consent to departure from the
Credit Agreement or any of the other Loan Documents;
(iii) any exchange, release or non-perfection of any
collateral, or any release or amendment or waiver of or consent to
departure from any guaranty, for all or any of the Senior Debt; or
(iv) any other circumstance that might otherwise constitute a
defense available, or a discharge of, a guarantor or a
subordinated creditor (other than the termination of the Credit
Agreement as provided therein and indefeasible payment in full of
the Senior Debt in cash).
(b) The provisions of this Article III shall continue to be
effective or be reinstated, as the case may be, if at any time any payment of
any of the Senior Debt is rescinded or must otherwise be returned by Senior
Lender or the other recipient thereof, as the case may be, upon the insolvency,
bankruptcy or reorganization of Guarantor or otherwise, all as though such
payment had not been made.
(c) Each Subordinate Creditor hereby waives promptness, diligence,
notice of acceptance and any other notice with respect to any of the Senior Debt
and this Article III and any requirement that Senior Lender or any Lender
protect, secure, perfect or insure any security
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interest or lien or any property subject thereto or exhaust any right or take
any action against Guarantor or any other person or entity or any collateral for
the Senior Debt.
(d) No failure on the part of Senior Lender or any Lender to
exercise, and no delay in exercising, any right hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any right hereunder
preclude any other or further exercise thereof of the exercise of any other
right. The remedies herein provided are cumulative and not exclusive of any
remedies provided by law.
(e) The provisions of this Article III constitute a continuing
agreement and shall (i) remain in full force and effect until the Credit
Agreement and the Guaranty shall have been terminated and the Senior Debt shall
have been paid in full, (ii) be binding upon each Subordinate Creditor and its
successors and assigns, (iii) inure to the benefit of the Senior Lender and the
Lenders, and their successors, transferees and assigns, and (iv) be enforceable
by Senior Lender and its successors, transferees and assigns. Without limiting
the generality of the foregoing clause (iii), Senior Lender and any Lender may
assign or otherwise transfer any interest in the Credit Agreement and other Loan
Document held by it, or grant any participation in any of its rights or
obligations under the Credit Agreement and other Loan Documents, to any other
person or entity, and such other person or entity shall thereupon become vested
with all the rights in respect thereof granted to Senior Lender or Lender, as
applicable, herein or otherwise.
ARTICLE IV
COVENANTS
SECTION 4.1 Covenants of Subordinate Creditors. Each Subordinate
Creditor covenants and agrees with Senior Lender that, unless Senior Lender
shall otherwise agree in writing, prior to the termination of the Credit
Agreement and payment in full of the Senior Debt:
(a) Subordinate Creditor will not cancel or otherwise discharge
any of the Subordinated Debt (except upon payment in full thereof to the extent
permitted by Article III.
(b) Subordinate Creditor will not sell, assign, pledge, encumber
or otherwise dispose of any of the Subordinated Debt held by it unless such
sale, assignment, pledge, encumbrance or disposition is made expressly subject
to this Agreement, other than the surrender of the Subordinated Notes to the
Company in exchange for Common Stock or Junior Securities to the extent
expressly permitted by this Agreement.
(c) Subordinate Creditor will not permit the terms of any of the
Subordinated Debt held by it to be amended or modified in such a manner as to
have any adverse effect upon the rights or interest of Senior Lender or any
Lender hereunder.
(d) Subordinate Creditor will not secure the payment of any
Subordinate Debt or any other obligation of Guarantor to such Subordinate
Creditor, or obtain a lien, security interest or other charge or encumbrance of
any nature whatsoever against Guarantor's property, whether now owned of
hereafter acquired.
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ARTICLE V
MISCELLANEOUS
SECTION 5.1 Amendments, etc. No amendment or waiver of any provision of
this Agreement or consent to any departure by any Subordinate Creditor herefrom
shall in any event be effective unless the same shall be in writing and signed
by Senior Lender, and then such waiver of consent shall be effective only in the
specific instance and the specific purpose for which given.
SECTION 5.2 Expenses. Each Subordinate Creditor agrees to pay, on
demand, to Senior Lender the amount of any and all reasonable expenses,
including the reasonable fees and expenses of its counsel, which Senior Lender
may incur in connection with the exercise or enforcement of any of its rights,
remedies or interests hereunder in connection with a violation of this Agreement
by such Subordinate Creditor.
SECTION 5.3 Addresses for Notices. Except as otherwise provided herein,
all notices, requests and demands to or upon a party hereto, to be effective,
shall be in writing and shall be sent by certified or registered mail, return
receipt requested, by personal delivery against receipt, by overnight courier or
by facsimile and, unless otherwise expressly provided herein, shall be deemed to
have been validly served, given or delivered immediately when delivered against
receipt, three business days after deposit in the mail, postage prepaid, or with
an overnight courier or, in the case of facsimile notice, when sent, addressed
as follows:
If to Senior Lender: LaSalle Bank National Association
000 X. XxXxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxxxx
Facsimile No.: 000-000-0000
With a copy to: Vedder, Price, Xxxxxxx & Kammholz
000 X. XxXxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxxx
Facsimile No.: (000) 000-0000
If to Subordinate Creditors:
White River Ventures, Inc.
c/o Charlesbank Capital Partners, LLC
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Fax: (000) 000-0000
Attention: Xxxx X. Xxxxx and Xxxx X. Xxxxx
and
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Capricorn Investors II, L.P.
00 Xxxx Xxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx, Xx. and Xxxxxx X. Xxxxx
and
Capricorn Investors III, L.P.
00 Xxxx Xxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx, Xx. and Xxxxxx X. Xxxxx
with copies to:
Ropes & Xxxx
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Fax: (000) 000-0000
Attention: Xxxxx Xxxx, Esq.
and
O'Melveny & Xxxxx, LLP
0000 X. 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Fax: (000) 000-0000
Attention: Xxxx Xxxxxxxxxxx, Esq.
or to such other address as each party may designate for itself by notice given
in accordance with this Section 5.3.
SECTION 5.4 Governing Law. This Agreement shall be governed by, and
construed in accordance with, the internal laws of the State of Illinois
(including, without limitation, 735 Illinois Compiled Statutes ss.105/5-5),
without regard to the conflict of laws rules of such state.
SECTION 5.5 CONSENT TO JURISDICTION: WAIVER OF JURY TRIAL. AS PART OF
THE CONSIDERATION FOR THE FINANCIAL ACCOMMODATION EXTENDED TO THE BORROWER BY
SENIOR LENDER AND THE LENDERS, EACH SUBORDINATE CREDITOR CONSENTS TO THE
NON-EXCLUSIVE JURISDICTION OF ANY LOCAL, STATE OR FEDERAL COURT LOCATED WITHIN
XXXX COUNTY, ILLINOIS. EACH SUBORDINATE CREDITOR WAIVES TRIAL BY JURY AND WAIVES
ANY OBJECTION TO VENUE OF ANY ACTION INSTITUTED HEREUNDER AND CONSENTS TO THE
GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY THE
COURT.
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SECTION 5.6 Execution in Counterparts; Facsimile. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed and delivered shall be
deemed to be an original and all of which counterparts taken together shall
constitute one and the same instrument. Each of the parties agrees that a
signature transmitted to the other parties or their respective counsel, by
facsimile transmission, shall be effective to bind the party whose signature was
transmitted, as a duly executed and delivered original. Each party further
agrees to promptly deliver its original signature pages to this Agreement to
counsel for the other parties promptly following execution. Any failure to do so
shall not affect the enforceability or binding effect of such signature.
SIGNATURES FOLLOW
12
SIGNATURE PAGE TO SUBORDINATION AGREEMENT
IN WITNESS WHEREOF, the Subordinate Creditors and Senior Lender have
caused this Agreement to be duly executed and delivered by their respective
officers thereunto duly authorized as of the date first above written.
SUBORDINATE CREDITORS:
WHITE RIVER VENTURES, INC,
a Delaware corporation
By: /s/ Xxxx X. Xxxxx
---------------------------
Name: Xxxx X. Xxxxx
Title: Director / Vice President
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------
Name: Mirchael X. Xxxxxxxx
Title: Director / Vice President
CAPRICORN INVESTORS II, L.P.
a Delaware limited partnership
By: CAPRICORN HOLDINGS, LLC,
its General Partner
By: /s/ Xxxxxxx X. Xxxxxxx, Xx.
-----------------------------
Name: Xxxxxxx X. Xxxxxxx, Xx.
Title: Manager
CAPRICORN INVESTORS III, L.P.
a Delaware limited partnership
By: CAPRICORN HOLDINGS III, LLC,
Its General Partner
By: /s/ Xxxxxxx X. Xxxxxxx, Xx.
-----------------------------
Name: Xxxxxxx X. Xxxxxxx, Xx.
Title: Manager
SIGNATURE PAGE TO SUBORDINATION AGREEMENT
SENIOR LENDER:
LASALLE BANK NATIONAL ASSOCIATION,
as Administrative Agent
By: /s/ Xxxxx X. Xxxxxxx
----------------------------
Name: Xxxxx X. Xxxxxxx
Title: Sr. Vice President
ACKNOWLEDGMENT AND AGREEMENT
The undersigned ("Guarantor") hereby accepts, and acknowledges receipt
of a copy of, the foregoing Subordination Agreement, and agrees that Guarantor
will not pay any of the Subordinated Debt (as defined in the foregoing
Subordination Agreement) owing by Guarantor to Subordinate Creditors (as defined
in the foregoing Subordination Agreement), except as the foregoing Subordination
Agreement provides. A breach by Guarantor of any of the provisions herein or of
the foregoing Subordination Agreement shall constitute an Event of Default under
the Credit Agreement and, thereupon, all of the Senior Debt (as defined in the
foregoing Subordination Agreement) may become due and payable in accordance with
the terms of the Credit Agreement (as defined in the foregoing Subordination
Agreement).
CCC INFORMATION SERVICES GROUP INC.,
a Delaware corporation
By: /s/ Xxxx X. Xxxxxxx
-------------------------------
Its: Executive Vice President
and Chief Financial Officer
