FOURTH AMENDMENT AND MODIFICATION AGREEMENT
Exhibit 10.1
THIS FOURTH AMENDMENT AND MODIFICATION AGREEMENT (hereinafter referred to as this “Fourth
Amendment”) is made this 28th day of March, 2011, by and among
INSURANCE SERVICES OFFICE, INC., a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware, having its principal office located at 000
Xxxxxxxxxx Xxxxxxxxx, Xxxxxx Xxxx, Xxx Xxxxxx 00000-0000 (hereinafter referred to as the
“Borrower”),
AND
ISO CLAIMS SERVICES, INC., a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware having its principal office located at 000 Xxxxxxxxx Xxxx,
Xxxxxxxx, Xxxxx Xxxxxxxx 00000 (hereinafter referred to as “ISO Claims Services”),
AND
AIR WORLDWIDE CORPORATION, a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware having its principal office located at 000 Xxxxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000-0000 (hereinafter referred to as “AIR Worldwide”),
AND
ISO SERVICES, INC., a corporation duly organized, validly existing and in good standing under
the laws of the State of Delaware having an office located at 000 Xxxxxxxxxx Xxxxxxxxx, Xxxxxx
Xxxx, Xxx Xxxxxx 00000-0000 (hereinafter referred to as “ISO Services”),
AND
XACTWARE SOLUTIONS, INC., a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware having its principal office located at 0000 Xxxx 000 Xxxxx,
Xxxx, Xxxx 00000 (hereinafter referred to as “Xactware”),
AND
VERISK HEALTH, INC., a corporation duly organized, validly existing and in good standing under
the laws of the Commonwealth of Massachusetts having its principal office located at 00 Xxxxxx
Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxxxxxxx 00000 (hereinafter referred to as “Verisk”),
AND
INTERTHINX, INC., a corporation duly organized, validly existing and in good standing under
the laws of the State of California having its principal office located at 00000 Xxxxxxxx Xxxxxx,
Xxxxxx Xxxxx, Xxxxxxxxxx 00000 (hereinafter referred to as “Interthinx”),
AND
D2HAWKEYE, INC., a corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware having its principal office located at 000 Xxxxxx Xxxxxx,
0xx Xxxxx,
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Xxxxxxx, Xxxxxxxxxxxxx 00000 (hereinafter referred to as “D2Hawkeye”),
AND
VERISK ANALYTICS, INC., a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware having its principal office located at 000 Xxxxxxxxxx
Xxxxxxxxx, Xxxxxx Xxxx, Xxx Xxxxxx 00000-0000 (hereinafter referred to as “Verisk
Analytics”)
AND
ISO STAFF SERVICES, INC., a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware having an office located at 000 Xxxxxxxxxx Xxxxxxxxx,
Xxxxxx Xxxx, Xxx Xxxxxx 00000-0000 (hereinafter referred to as “ISO Staff Services”, and
hereinafter ISO Claims Services, AIR Worldwide, ISO Services, Xactware, Verisk, Interthinx,
D2Hawkeye, Verisk Analytics, and ISO Staff Services shall be collectively referred to as the
“Guarantors”),
AND
BANK OF AMERICA, N.A., a national banking association duly organized and validly existing
under the laws of the United States of America, having an office located at 000 Xxxxxx Xxxxxx,
Xxxxxxxx, Xxx Xxxxxx 00000, in its capacity as a Lender, the letter of credit issuer and the swing
line lender (hereinafter referred to as “Bank of America”),
AND
THOSE OTHER LENDERS SIGNATORY HERETO (hereinafter said lenders, together with Bank of
America, shall be sometimes individually referred to as a “Lender” and collectively
referred to as the “Lenders”),
AND
BANK OF AMERICA, N.A., a national banking association duly organized and validly existing
under the laws of the United States of America, having an office located at 000 Xxxxxx Xxxxxx,
Xxxxxxxx, Xxx Xxxxxx 00000, in its capacity as administrative agent for the Lenders (hereinafter
referred to as the “Administrative Agent”).
W I T N E S S E T H :
WHEREAS, pursuant to the terms, conditions, and provisions of that certain Credit Agreement
dated as of July 2, 2009, executed by and among the Borrower, as borrower, Bank of America, as a
Lender, JPMorgan Chase Bank, N.A. (hereinafter referred to as “JPMorgan Chase”), as a
Lender, Xxxxxx Xxxxxxx Bank, N.A. (hereinafter referred to as “Xxxxxx Xxxxxxx”), as a
Lender, Xxxxx Fargo Bank, N.A. (hereinafter referred to as “Xxxxx Fargo”), as a Lender,
Bank of America, as letter of credit issuer and swing line lender, and the Administrative Agent, as
administrative agent (hereinafter referred to as the “Original Credit Agreement”), the
Lenders made available to the Borrower an unsecured revolving credit loan facility in the aggregate
maximum principal amount of up to $300,000,000.00, expandable up to an aggregate maximum principal
amount of up to $500,000,000.00 (hereinafter referred to as the “Original Credit
Facility”), which Original Credit Facility includes (i) a $25,000,000.00 letter of credit
sub-facility for the issuance of standby letters of credit (and not commercial letters of credit)
denominated in U.S.
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dollars or such other currencies as may be agreed upon by the Borrower and Bank of America, as
letter of credit issuer, and (ii) a $30,000,000.00 swingline sub-facility, all made available to
the Borrower for working capital and other lawful corporate purposes, including, without
limitation, (a) refinancing a portion of the Borrower’s then-existing indebtedness and (b)
financing such acquisitions as may be permitted pursuant to the terms, conditions, and provisions
of the Original Credit Agreement; and
WHEREAS, Bank of America’s “Commitment” (as such term is defined in the Original Credit
Agreement) under the Original Credit Facility is evidenced by that certain Revolving Credit Loan
Note #1 dated as of July 2, 2009, executed by the Borrower, as maker, in favor of Bank America, as
payee, in the maximum principal amount of up to $125,000,000.00 (hereinafter referred to as the
“Original Revolving Credit Loan Note #1”); and
WHEREAS, JPMorgan Chase’s Commitment under the Original Credit Facility is in the maximum
principal amount of up to $75,000,000.00, but JPMorgan Chase did not require that a promissory note
be executed to evidence said Commitment; and
WHEREAS, Xxxxxx Xxxxxxx’x Commitment under the Original Credit Facility is evidenced by that
certain Revolving Credit Loan Note #2 dated as of July 2, 2009, executed by the Borrower, as maker,
in favor of Xxxxxx Xxxxxxx, as payee, in the maximum principal amount of up to $50,000,000.00
(hereinafter referred to as the “Original Revolving Credit Loan Note #2”); and
WHEREAS, Xxxxx Fargo’s Commitment under the Original Credit Facility is in the maximum
principal amount of up to $50,000,000.00, but Xxxxx Fargo did not require that a promissory note be
executed to evidence said Commitment; and
WHEREAS, pursuant to the terms, conditions, and provisions of that certain
Continuing Guaranty dated as of July 2, 2009 executed by ISO Claims Services, ISO Investment
Holdings, Inc., a Delaware corporation (hereinafter referred to as “ISO Investment
Holdings”), AIR Worldwide, ISO Services, Xactware, Verisk, Interthinx, and D2Hawkeye, on a
joint and several basis, in favor of the Administrative Agent and the Lenders, said Guarantors
guarantied the payment and performance of all of the obligations of the Borrower owed to the
Administrative Agent and the Lenders under the Original Credit Agreement and the other “Loan
Documents” (as such term is defined in the Original Credit Agreement) (hereinafter, as it may be
from time to time amended, modified, extended, renewed, substituted, and/or supplemented, referred
to as the “Guaranty #1”); and
WHEREAS, pursuant to the terms, conditions, and provisions of that certain Joinder dated as of
August 21, 2009 executed by SunTrust Bank (hereinafter referred to as “SunTrust”), as an
additional Lender, SunTrust agreed to (i) provide a Commitment equal to $25,000,000.00 and (ii)
accept and be bound by all of the terms, conditions, and provisions of the Original Credit
Agreement and the other Loan Documents, as a result of which SunTrust became a “Lender” under the
Original Credit Agreement; and
WHEREAS, SunTrust’s original Commitment under the Original Credit Facility was in the
aforesaid maximum principal amount of up to $25,000,000.00, and SunTrust did not require that a
promissory note be executed to evidence said Commitment; and
WHEREAS, pursuant to the terms, conditions, and provisions of that certain Joinder dated as of
August 21, 2009 executed by PNC Bank, N.A. (hereinafter referred to as “PNC”), as an
additional Lender, PNC agreed to (i) provide a Commitment equal to $20,000,000.00 and (ii) accept
and be bound by all of the terms, conditions, and provisions of the Original Credit Agreement and
the other Loan
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Documents, as a result of which PNC became a “Lender” under the Original Credit Agreement; and
WHEREAS, PNC’s Commitment under the Original Credit Facility was evidenced by that certain
Revolving Credit Loan Note #3, dated August 21, 2009 executed by the Borrower, as maker, in favor
of PNC, as payee, in the maximum principal amount of up to $20,000,000.00 (hereinafter referred to
as the “Original Revolving Credit Loan Note #3”); and
WHEREAS, pursuant to the terms, conditions, and provisions of that certain Joinder dated as of
August 21, 2009 executed by Sovereign Bank (hereinafter referred to as “Sovereign”), as an
additional Lender, Sovereign agreed to (i) provide a Commitment in the principal amount of
$40,000,000.00 and (ii) accept and be bound by all of the terms, conditions, and provisions of the
Original Credit Agreement and the other Loan Documents, as a result of which Sovereign became a
“Lender” under the Original Credit Agreement; and
WHEREAS, Sovereign’s Commitment under the Original Credit Facility is evidenced by that
certain Revolving Credit Loan Note #4 dated August 21, 2009 executed by the Borrower, as maker, in
favor of Sovereign, as payee, in the maximum principal amount of up to $40,000,000.00 (hereinafter
referred to as the “Original Revolving Credit Loan Note #4”); and
WHEREAS, pursuant to the terms, conditions, and provisions of that certain Joinder dated as of
August 21, 2009 executed by RBS Citizens, N.A. (hereinafter referred to as “RBS”), as an
additional Lender, RBS agreed to (i) provide a Commitment in the principal amount of $35,000,000.00
and (ii) accept and be bound by all of the terms, conditions, and provisions of the Original Credit
Agreement and the other Loan Documents, as a result of which RBS became a “Lender” under the
Original Credit Agreement; and
WHEREAS, RBS’s original Commitment under the Original Credit Facility was evidenced by that
certain Revolving Credit Loan Note #5, dated August 21, 2009 executed by the Borrower, as maker, in
favor of RBS, as payee, in the maximum principal amount of up to $35,000,000.00 (hereinafter
referred to as the “Original Revolving Credit Loan Note #5”); and
WHEREAS, pursuant to that certain Letter Agreement dated August 21, 2009 executed by and
between the Borrower and the Administrative Agent, on behalf of itself as Administrative Agent and
all of the Lenders (hereinafter referred to as the “First Amendment”), the Borrower and the
Administrative Agent agreed to amend and modify the terms, conditions, and provisions of the
Original Credit Agreement for the purposes more fully set forth and described in the First
Amendment; and
WHEREAS, pursuant to the terms, conditions, and provisions of that certain Continuing Guaranty
dated November 4, 2009 executed by Verisk Analytics in favor of the Administrative Agent and the
Lenders in accordance with the requirements of Section 6.12(b) of the Credit Agreement,
Verisk Analytics guarantied the payment and performance of all of the obligations of the Borrower
owed to the Administrative Agent and the Lenders under the Original Credit Agreement and the other
Loan Documents (hereinafter, as it may be from time to time amended, modified, extended, renewed,
substituted, and/or supplemented, referred to as the “Guaranty #2”); and
WHEREAS, pursuant to that certain Second Amendment and Modification Agreement dated April 19,
2010, executed by and among the Borrower, the Guarantors, the Lenders, and the Administrative Agent
(hereinafter referred to as the “Second Amendment”), the Borrower, the Guarantors, the
Lenders, and the Administrative Agent agreed to further amend and modify the terms,
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conditions, and provisions of the Original Credit Agreement for the purposes more fully set forth
and described in the Second Amendment; and
WHEREAS, on June 30, 2010, ISO Investment Holdings was merged with and into the Borrower, with
the Borrower being the surviving entity; and
WHEREAS, pursuant to that certain Third Amendment and Modification Agreement dated September
10, 2010, executed by and among the Borrower, the Guarantors, the Lenders, and the Administrative
Agent (hereinafter referred to as the “Third Amendment”, and hereinafter the Original
Credit Agreement, as amended and modified through the Third Amendment, shall be referred to as the
“Credit Agreement”), the Borrower, the Guarantors, the Lenders, and the Administrative
Agent agreed to further amend and modify the terms, conditions, and provisions of the Original
Credit Agreement for the purposes more fully set forth and described in the Third Amendment,
including providing for an accordion feature to expand the aggregate maximum principal amount of
the Commitments to up to $750,000,000.00; and
WHEREAS, in connection with the execution and delivery of the Third Amendment, Bank of America
increased its Commitment under the Original Credit Facility to a new principal amount of
$150,000,000.00, and such increased Commitment is evidenced by that certain First Substitute
Revolving Credit Loan Note #1, dated September 10, 2010, executed by the Borrower, as maker, in
favor of Bank of America, as payee, in the maximum principal amount of up to $150,000,000.00, which
First Substitute Revolving Credit Loan Note #1 was given in full substitution for and in full
replacement of the Original Revolving Credit Loan Note #1 (hereinafter, as it may be from time to
time amended, modified, extended, renewed, substituted, and/or supplemented, referred to as the
“Revolving Credit Loan Note #1”); and
WHEREAS, in connection with the execution and delivery of the Third Amendment, JPMorgan Chase
increased its Commitment under the Original Credit Facility to a new principal amount of
$120,000,000.00, and JPMorgan Chase did not require that a promissory note be executed and
delivered to it by the Borrower as evidence of such increased Commitment; and
WHEREAS, in connection with the execution and delivery of the Third Amendment, Xxxxxx Xxxxxxx
increased its Commitment under the Original Credit Facility to a new principal amount of
$95,000,000.00, and such increased Commitment is evidenced by that certain First Substitute
Revolving Credit Loan Note #2, dated September 10, 2010, executed by the Borrower, as maker, in
favor of Xxxxxx Xxxxxxx, as payee, in the maximum principal amount of up to $95,000,000.00, which
First Substitute Revolving Credit Loan Note #2 was given in full substitution for and in full
replacement of the Original Revolving Credit Loan Note #2 (hereinafter, as it may be from time to
time amended, modified, extended, renewed, substituted, and/or supplemented, referred to as the
“Revolving Credit Loan Note #2”); and
WHEREAS, in connection with the execution and delivery of the Third Amendment, Xxxxx Fargo
increased its Commitment under the Original Credit Facility to a new principal amount of
$75,000,000.00, and Xxxxx Fargo did not require that a promissory note be executed and delivered to
it by the Borrower as evidence of such increased Commitment; and
WHEREAS, in connection with the execution and delivery of the Third Amendment, SunTrust Bank
increased its Commitment under the Original Credit Facility to a new principal amount of
$47,500,000.00, and SunTrust Bank did not require that a promissory note be executed and delivered
to it by the Borrower as evidence of such increased Commitment; and
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WHEREAS, in connection with the execution and delivery of the Third Amendment, PNC terminated
its Commitment and withdrew as a Lender; and
WHEREAS, in connection with the execution and delivery of the Third Amendment, Sovereign Bank
maintained its Commitment under the Original Credit Facility at its original principal amount of
$40,000,000.00; and
WHEREAS, in connection with the execution and delivery of the Third Amendment, RBS increased
its Commitment under the Original Credit Facility to a new principal amount of $47,500,000.00, and
such increased Commitment is evidenced by that certain First Substitute Revolving Credit Loan Note
#5, dated September 10, 2010, executed by the Borrower, as maker, in favor of RBS , as payee, in
the maximum principal amount of up to $47,500,000.00, which First Substitute Revolving Credit Loan
Note #5 was given in full substitution for and in full replacement of the Original Revolving Credit
Loan Note #5 (hereinafter, as it may be from time to time amended, modified, extended, renewed,
substituted, and/or supplemented, referred to as the “Revolving Credit Loan Note #5”); and
WHEREAS, pursuant to that certain Joinder dated March 16, 2011, The Northern Trust Company
(hereinafter referred to as “Northern”) issued a Commitment under the Original Credit
Facility in the principal amount of $25,000,000.00 and, as a result of said additional Commitment
having been obtained, the aggregate maximum principal amount of the Original Credit Facility has
been increased to up to Six Hundred Million and 00/100 ($600,000,000.00) Dollars (hereinafter the
Original Credit Facility, as so increased and as it may be from time to time hereafter amended,
modified, extended, renewed, substituted, and/or supplemented, shall be referred to as the
“Credit Facility”), and such Commitment is evidenced by that certain Revolving Credit Loan
Note #6, dated March 16, 2011, executed by the Borrower, as maker, in favor of Northern, as payee,
in the maximum principal amount of up to $25,000,000.00 (hereinafter, as it may be from time to
time amended, modified, extended, renewed, substituted, and/or supplemented, referred to as the
“Revolving Credit Loan Note #6”, and hereinafter the Revolving Credit Loan Note #1, the
Revolving Credit Loan Note #2, the Original Revolving Credit Loan Note #4, the Revolving Credit
Loan Note #5, and the Revolving Credit Loan Note #6 shall be collectively referred to as the
“Notes”); and
WHEREAS, pursuant to the terms, conditions, and provisions of that certain Continuing Guaranty
dated March 28, 2011 executed by ISO Staff Services in favor of the Administrative Agent and the
Lenders in accordance with the requirements of Section 6.12(a) of the Credit Agreement, ISO
Staff Services guarantied the payment and performance of all of the obligations of the Borrower
owed to the Administrative Agent and the Lenders under the Credit Agreement and the other Loan
Documents (hereinafter, as it may be from time to time amended, modified, extended, renewed,
substituted, and/or supplemented, referred to as the “Guaranty #3”, and hereinafter the
Guaranty #1, the Guaranty #2, and the Guaranty #3 shall be collectively referred to as the
“Guaranties”); and
WHEREAS, the parties hereto have agreed to amend and modify the Credit Agreement and the other
Loan Documents pursuant to the terms, conditions, and provisions of this Fourth Amendment for the
purposes more fully set forth and described herein; and
WHEREAS, defined terms used but not expressly defined herein shall have the same meanings when
used herein as set forth in the Credit Agreement.
NOW, THEREFORE, intending to be legally bound hereby, the parties hereto hereby promise,
covenant, and agree as follows:
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1. Waiver. Each of the Lenders and the Administrative Agent hereby waives, effective
as of the date first above written, only the Event of Default arising under Section 8.01(c)
of the Credit Agreement caused by the Borrower’s failure to comply with Section 7.03 of the
Credit Agreement, solely to the extent of the Borrower’s past failure to cause ISO Staff Services
to deliver a Guaranty pursuant to the terms of the Credit Agreement (as so amended);
provided that ISO Staff Services shall deliver, on the date first written above,
such Guaranty in the form so provided in the Credit Agreement.
2. Credit Agreement. The Credit Agreement is hereby amended and modified as follows:
(i) The existing Section 1.01 of the Credit Agreement is hereby amended and modified
by deleting the penultimate paragraph in the existing definition of “Applicable Rate” and
inserting the following new paragraph in its place and stead:
“For the purposes of calculating the Consolidated Funded Debt Leverage Ratio in
connection with this definition only, and for no other purpose, to the extent that
Verisk Analytics, Inc. acquires a Person in accordance with the terms, conditions,
and provisions of this Agreement, the Administrative Agent shall include in its
calculation of Consolidated EBITDA the pro forma effect of such acquisition as if
such acquisition shall have occurred on the first date of the applicable test
period.”
(ii) The existing Section 1.01 of the Credit Agreement is hereby amended and modified
by deleting the existing definition of “Consolidated EBIT” and inserting the following new
definition of “Consolidated EBIT” in its place and stead:
““Consolidated EBIT” means, for any period, for Verisk Analytics, Inc. and
its direct and indirect Subsidiaries on a consolidated basis, an amount equal to
Consolidated Net Income for such period plus (a) the following to the extent
deducted in calculating such Consolidated Net Income: (i) Consolidated Interest
Charges for such period; (ii) the provision for Federal, state, local and foreign
income taxes payable by Verisk Analytics, Inc. and its direct and indirect
Subsidiaries for such period; (iii) non-cash charges for the appreciation of ESOP
shares; (iv) non-cash stock option expenses under FASB Accounting Standards
Codification 718 for such period; (v) non-cash expenses in connection with the
Borrower’s Top Hat Plan and Deferred Compensation Plan for such period, to the
extent such expenses are the result of increasing the participant liabilities for
said plans due to the appreciation in value of the investments held; (vi) non-cash
expenses other than temporary impairment of the Borrower’s Top Hat Plan and Deferred
Compensation Plan for such period, to the extent such expenses are the result of the
depreciation in value of the investments held in said plan; (vii) non-cash loss on
the disposal of fixed assets for such period; and (viii) other non-recurring
expenses of Verisk Analytics, Inc. and its direct and indirect Subsidiaries reducing
such Consolidated Net Income which do not represent a cash item in such period or
any future period and minus (b) the following to the extent included in
calculating such Consolidated Net Income: (i) Federal, state, local and foreign
income tax credits of Verisk Analytics, Inc. and its direct and indirect
Subsidiaries for such period; (ii) non-cash gains in connection with the Borrower’s
Top Hat Plan and Deferred Compensation Plan for such period, to the extent such
gains are the result of decreasing the participant liabilities for said plans due to
the depreciation in value of the investments held; and (iii) other non-recurring
non-cash items increasing Consolidated Net Income for such period.”
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(iii) The existing Section 1.01 of the Credit Agreement is hereby amended and modified
by deleting the existing definition of “Consolidated EBITDA” and inserting the following
new definition of “Consolidated EBITDA” in its place and stead:
““Consolidated EBITDA” means, for any period, for Verisk Analytics, Inc. and
its direct and indirect Subsidiaries on a consolidated basis, an amount equal to
Consolidated Net Income for such period plus (a) the following to the extent
deducted in calculating such Consolidated Net Income: (i) Consolidated Interest
Charges for such period; (ii) the provision for Federal, state, local and foreign
income taxes payable by Verisk Analytics, Inc. and its direct and indirect
Subsidiaries for such period; (iii) depreciation and amortization expense; (iv)
non-cash charges for the appreciation of ESOP shares; (v) non-cash stock option
expenses under FASB Accounting Standards Codification 718 for such period; (vi)
non-cash expenses in connection with the Borrower’s Top Hat Plan and Deferred
Compensation Plan for such period, to the extent such expenses are the result of
increasing the participant liabilities for said plans due to the appreciation in
value of the investments held; (vii) non-cash expenses other than temporary
impairment of the Borrower’s Top Hat Plan and Deferred Compensation Plan for such
period, to the extent such expenses are the result of the depreciation in value of
the investments held; (viii) non-cash loss on the disposal of fixed assets for such
period; and (ix) other non-recurring expenses of Verisk Analytics, Inc. and its
direct and indirect Subsidiaries reducing such Consolidated Net Income which do not
represent a cash item in such period or any future period and minus (b) the
following to the extent included in calculating such Consolidated Net Income: (i)
Federal, state, local and foreign income tax credits of Verisk Analytics, Inc. and
its direct and indirect Subsidiaries for such period; (ii) non-cash gains in
connection with the Borrower’s Top Hat Plan and Deferred Compensation Plan for such
period, to the extent such gains are the result of decreasing the participant
liabilities for said plans due to the depreciation in value of the investments held;
and (iii) other non-recurring non-cash items increasing Consolidated Net Income for
such period.”
(iv) The existing Section 1.01 of the Credit Agreement is hereby amended and modified
by deleting the existing definition of “Consolidated Funded Debt Leverage Ratio” and
inserting the following new definition of “Consolidated Funded Debt Leverage Ratio” in its
place and stead:
““Consolidated Funded Debt Leverage Ratio” means, as of any date of
determination, the ratio of (a) Consolidated Funded Indebtedness as of such date
-to- (b) Consolidated EBITDA for the period of the four fiscal quarters most
recently ended.
For the purposes of calculating the Consolidated Funded Debt Leverage Ratio in
connection with determining compliance with the financial covenant set forth and
contained in Section 7.10(b) of this Agreement only, and for no other
purpose, to the extent that Verisk Analytics, Inc. acquires a Person in accordance
with the terms, conditions, and provisions of this Agreement, the Administrative
Agent shall include in its calculation of Consolidated EBITDA the pro forma effect
of such acquisition as if such acquisition shall have occurred on the first date of
the applicable test period.”
(v) The existing Section 1.01 of the Credit Agreement is hereby amended and modified
by deleting the existing definition of “Consolidated Funded Indebtedness” and inserting the
following new definition of “Consolidated Funded Indebtedness” in its place and stead:
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““Consolidated Funded Indebtedness” means, as of any date of determination,
for Verisk Analytics, Inc. and its direct and indirect Subsidiaries on a
consolidated basis, the sum of (a) the outstanding principal amount of all
obligations, whether current or long-term, for borrowed money (including Obligations
hereunder) and all obligations evidenced by bonds, debentures, notes, loan
agreements or other similar instruments, (b) all purchase money Indebtedness, (c)
all obligations, whether contingent or otherwise, arising under letters of credit
(including standby and commercial letters of credit), bankers’ acceptances, bank
guaranties, surety bonds and similar instruments, (d) all obligations in respect of
the deferred purchase price of Property or services (other than obligations to pay
the earn out portion of the purchase price for Permitted Acquisitions and trade
accounts payable in the ordinary course of business), (e) Attributable Indebtedness
in respect of Capitalized Leases and Synthetic Lease Obligations, (f) without
duplication, all Guarantees with respect to outstanding Indebtedness of the types
specified in clauses (a) through (e) above of Persons other than Verisk Analytics,
Inc. or any direct or indirect Subsidiary, (g) without duplication, all Guarantees
by Verisk Analytics, Inc. and/or the Company of Permitted Subsidiary Acquisition
Indebtedness, and (h) all Indebtedness of the types referred to in clauses (a)
through (f) above of any partnership or joint venture (other than a joint venture
that is itself a corporation or limited liability company) in which Verisk
Analytics, Inc. or a direct or indirect Subsidiary is a general partner or joint
venturer, unless such Indebtedness is expressly made non-recourse to Verisk
Analytics, Inc. or such direct or indirect Subsidiary.”
(vi) The existing Section 1.01 of the Credit Agreement is hereby amended and modified
by deleting the existing definition of “Consolidated Interest Charges” and inserting the
following new definition of “Consolidated Interest Charges” in its place and stead:
““Consolidated Interest Charges” means, for any period, for Verisk
Analytics, Inc. and its direct and indirect Subsidiaries on a consolidated basis,
all interest, premium payments, debt discount, fees, charges and related expenses of
Verisk Analytics, Inc. and its direct and indirect Subsidiaries in connection with
borrowed money (including capitalized interest) or in connection with the deferred
purchase price of assets, in each case (a) paid in cash and (b) to the extent
treated as interest in accordance with GAAP.”
(vii) The existing Section 1.01 of the Credit Agreement is hereby amended and modified
by deleting the existing definition of “Consolidated Net Income” and inserting the
following new definition of “Consolidated Net Income” in its place and stead:
““Consolidated Net Income” means, for any period, for Verisk Analytics, Inc.
and its direct and indirect Subsidiaries on a consolidated basis, the net income of
Verisk Analytics, Inc. and its direct and indirect Subsidiaries (excluding
extraordinary gains and extraordinary losses) for that period.”
(viii) The existing Section 1.01 of the Credit Agreement is hereby amended and
modified by deleting the existing definition of “Material Domestic Subsidiary” and
inserting the following new definition of “Material Domestic Subsidiary” in its place and
stead:
““Material Domestic Subsidiary” means any Domestic Subsidiary (a) which
accounts for, or is responsible for generating, ten percent (10%) or more of the
consolidated operating
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income or consolidated revenue of Verisk Analytics, Inc. and its direct and indirect
Subsidiaries, as of the most recently ended fiscal quarter, or (b) which contributed
more than ten percent (10%) of Consolidated EBITDA for the most recently ended four
fiscal quarter period; provided, however, that no Domestic
Subsidiary shall be deemed to be a Material Domestic Subsidiary for the purposes of
compliance with Section 6.12 of this Agreement until the earlier to occur of
the following two events: (i) such Domestic Subsidiary has been included in the
annual audited consolidated results of Verisk Analytics, Inc. for at least nine (9)
months and such annual audited consolidated results shall have been publicly filed
in Verisk Analytics, Inc.’s annual report on Form 10-K; or (ii) the public filing by
Verisk Analytics, Inc. of annual audited financial statements for such Domestic
Subsidiary for the most recent fiscal year, provided that the
determination of whether such annual audited financial statements for such Domestic
Subsidiary are prepared and publicly filed shall be at the sole discretion of Verisk
Analytics, Inc. Notwithstanding the foregoing definition to the contrary, the
Administrative Agent and the Lenders hereby acknowledge and agree that, as of March
23, 2011, 3E Company Environmental, Ecological and Engineering, a Delaware
corporation, is not a Material Domestic Subsidiary.”
(ix) The existing Section 1.01 of the Credit Agreement is hereby amended and modified
by adding the following new definitions:
““Bondholders” means the holders of the Bonds.”
““Bonds” means any unsecured debt securities (whether registered under the
Securities Act of 1933, as amended, or exempt therefrom (pursuant to Rule 144A
thereunder or otherwise)) (i) issued by either Verisk Analytics, Inc. or the
Borrower and (ii) guaranteed by Verisk Analytics, Inc. or the Borrower, as
applicable, and any direct or indirect Subsidiary of Verisk Analytics, Inc. or the
Borrower.”
(x) The existing Section 2.05(b)(iii) of the Credit Agreement is hereby deleted in its
entirety, and the following is hereby inserted in its place and stead: “Intentionally
Omitted.”
(xi) The existing Section 6.01(c) of the Credit Agreement is hereby deleted in its
entirety and the following new Section 6.01(c) is hereby inserted in its place and stead:
“(c) as soon as available, but in any event at least ninety (90) days after the
commencement of each fiscal year of Verisk Analytics, Inc., annual projections for
Verisk Analytics, Inc. and its direct and indirect Subsidiaries on a consolidated
basis of a consolidated statement of income and operations of Verisk Analytics, Inc.
and its direct and indirect Subsidiaries, on a quarterly basis for such fiscal
year.”
(xii) The existing Section 6.14 of the Credit Agreement is hereby deleted in its
entirety and the following new Section 6.14 is hereby inserted in its place and stead:
“6.14 Most Favored Lender Status. Deem this Agreement to be automatically amended
(such amendment to be effective as of the date of the applicable incurrence,
creation, assumption or amendment or modification) to include the representations,
warranties, covenants and/or event of default provisions of any of the documents,
indentures, agreements, or other evidence of any additional Indebtedness (or
amendment
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or modification thereof), created, incurred or assumed by the Borrower or any
Subsidiary after the date of this Agreement in favor of any lender or creditor, in
the event and only to the extent such representations, warranties, covenants and/or
event of default provisions are more favorable to such lender or creditor than, or
are in addition to, those already set forth and contained in this Agreement and the
other Loan Documents; provided, however, that, so long as no Default
or Event of Default shall then exist, any such amendment of this Agreement shall be
deemed (i) to terminate automatically upon (a) the repayment in full and termination
of such Indebtedness or (b) the effective date of the deletion of such more
favorable provisions in respect of such additional Indebtedness pursuant to the
terms of such additional Indebtedness or (ii) to be amended automatically and in
like manner and effect upon the effectiveness of any amendment of such more
favorable provisions in respect of such Indebtedness pursuant to the terms of such
additional Indebtedness. Within three (3) Business Days thereafter, the Borrower
shall deliver a written conforming amendment to this Agreement. Prior to the
execution and delivery of such documents by the Borrower and before such additional
Indebtedness shall have been repaid in full and terminated, this Agreement shall be
deemed to contain each such more favorable (or, as the case may be, such additional)
representation, warranty, covenant and/or event of default provision for purposes of
determining the rights and obligations hereunder.”
(xiii) The following new Section 7.02(p) shall be added to Section 7.02 of the
Credit Agreement:
“(p) Investments in the form of Guarantees by the Borrower or the Domestic
Subsidiaries of the Borrower which act as Guarantors hereunder for the benefit of
the Bondholders in connection with the Bonds.”
(xiv) The existing Section 7.08 of the Credit Agreement is hereby deleted in its
entirety, and the following is hereby inserted in its place and stead: “Intentionally
Omitted.”
(xv) The existing Section 7.10 of the Credit Agreement is hereby deleted in its
entirety, and the following new Section 7.10 is hereby inserted in its place and stead:
“7.10 Financial Covenants.
| (a) | Consolidated Interest Coverage Ratio. Permit the Consolidated Interest Coverage Ratio as of the end of any fiscal quarter of Verisk Analytics, Inc. to be less than 3.0 -to- 1.0. | ||
| (b) | Consolidated Funded Debt Leverage Ratio. Permit the Consolidated Funded Debt Leverage Ratio at any time during any period of four fiscal quarters of Verisk Analytics, Inc. to be greater than 3.0 -to- 1.0.” |
(xvi) The existing Section 7.11 of the Credit Agreement is hereby deleted in its
entirety and the following new Section 7.11 is hereby inserted in its place and stead:
“7.11 No Negative Pledges to Other Persons. Grant to another Person a covenant
commonly referred to as a “negative pledge” with respect to its respective assets
and properties other than (a) in connection with any Indebtedness constituting
purchase-money
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Indebtedness secured by purchase-money security interests and Capitalized Leases, in
each case, to the extent permitted under Section 7.03, and solely to the
extent such covenant is limited to the Property covered by such Liens; (b) customary
non-assignment provisions of leases, subleases, licenses and sublicenses; (c) with
respect to specific Property to be sold pursuant to an executed definitive purchase
agreement in connection with a Disposition permitted under Section 7.05; (d)
in connection with Permitted Subsidiary Acquisition Indebtedness and limited to the
Property covered by Liens in respect of Permitted Subsidiary Acquisition
Indebtedness; and (e) for the benefit of the Bondholders in connection with the
Bonds.”
3. Amendments to all Loan Documents. Any and all references in any Loan Document to
the Credit Agreement and/or any of the other Loan Documents shall be deemed to refer to the Credit
Agreement or such other Loan Document, as amended and modified through this Fourth Amendment.
4. Further Agreements and Representations. The Borrower and the Guarantors do hereby:
(i) ratify, confirm and acknowledge that, as amended and modified by this Fourth Amendment, the
Credit Agreement, the Notes, the Guaranties, and all other Loan Documents continue to be valid,
binding and in full force and effect; (ii) acknowledge and agree that, as of the date hereof, none
of the Borrower or any of the Guarantors has any defense, set-off, counterclaim or challenge
against the payment of any sums due and owing to the Administrative Agent or any Lender or the
enforcement of any of the terms of the Credit Agreement, the Guaranties and/or any of the other
Loan Documents; (iii) acknowledge and agree that all representations and warranties of the Borrower
and the Guarantors contained in the Credit Agreement, the Guaranties, and the other Loan Documents
are true, accurate and correct as of the date hereof as if made on and as of the date hereof,
except (a) to the extent any such representation or warranty is by its terms limited to a certain
date or dates in which case it remains true, accurate and correct as of such date or dates, or (b)
to the extent any such representation or warranty references or incorporates by reference any of
the updated Schedules attached to this Fourth Amendment, in which case such representation or
warranty shall be deemed to incorporate and refer to such updated Schedules, rather than the
corresponding Schedules originally attached to the Original Credit Agreement, and that, with the
exception of (1) the Amended and Restated Certificate of Incorporation of the Borrower filed with
the Office of the Secretary of State of the State of Delaware on October 6, 2009, the current
By-Laws of the Borrower, and the Certificate of Ownership and Merger Merging ISO Investment
Holdings, Inc., a Delaware corporation, into the Borrower filed with the Office of the Secretary of
State of the State of Delaware on June 30, 2010, each of which is attached to a Certificate of
Insurance Services Office, Inc., as to Existence, Authorization and Incumbency dated of even date
herewith and delivered as of the date hereof to the Administrative Agent, and (2) the Amended and
Restated Certificate of Incorporation of Verisk Analytics filed with the Office of the Secretary of
State of the State of Delaware on October 6, 2009, which has been previously delivered to the
Administrative Agent, none of the corporate governing documents of the Borrower or the Guarantors
have been amended, modified or supplemented since the date of the execution and delivery of the
Credit Agreement; and (iv) represent and warrant that the Borrower and the Guarantors have taken
all necessary action required by law and by their respective corporate governing documents to
execute and deliver this Fourth Amendment and that such execution and delivery constitutes the
legal and validly binding action of such entities.
5. No Novation. It is the intention of the parties hereto that this Fourth Amendment
shall not constitute a novation.
6. Additional Documents; Further Assurances. The Borrower and the Guarantors hereby
covenant and agree to execute and deliver to the Administrative Agent, on behalf of the Lenders, or
to
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cause to be executed and delivered to the Administrative Agent, on behalf of the Lenders,
contemporaneously herewith, at their sole cost and expense, any other documents, agreements,
statements, resolutions, certificates, opinions, consents, searches and information as the
Administrative Agent or any Lender may reasonably request in connection with the matters or actions
described herein. The Borrower and the Guarantors hereby further covenant and agree to execute and
deliver to the Administrative Agent, on behalf of the Lenders, or to use reasonable efforts to
cause to be executed and delivered to the Administrative Agent, on behalf of the Lenders, at the
sole cost and expense of the Borrower and the Guarantors, from time to time, any and all other
documents, agreements, statements, certificates and information as the Administrative Agent or any
Lender shall reasonably request to evidence or effect the terms of the Credit Agreement, the
Guaranties, and/or any of the other Loan Documents. All such documents, agreements, statements,
etc., shall be in form and content reasonably acceptable to the Administrative Agent and the
Lenders.
7. Waiver, Release and Indemnification by the Borrower and the Guarantors. To induce
the Administrative Agent and the Lenders to enter into this Fourth Amendment, the Borrower and the
Guarantors, and any person or entity claiming by or through any or all of them, each waives and
releases and forever discharges the Administrative Agent and the Lenders and their respective
officers, directors, shareholders, agents, parent corporation, subsidiaries, affiliates, trustees,
administrators, attorneys, predecessors, successors and assigns and the heirs, executors,
administrators, successors and assigns of any such person or entity, as releasees (hereinafter
collectively referred to as the “Releasees”) from any liability, damage (whether direct or
indirect, consequential, special, exemplary, or punitive), claim (including, without limitation,
any claim for contribution or indemnity), loss or expense of any kind, in each case whether now
known or unknown, past or present, asserted or unasserted, contingent or liquidated, at law or in
equity, that it may have against any Releasee arising from the beginning of time to the date hereof
arising out of or relating to the Credit Facility. The Borrower and the Guarantors each further
agrees to indemnify and hold the Releasees harmless from any loss, damage, judgment, liability or
expense (including attorneys’ fees) suffered by or rendered against the Administrative Agent or any
Lender on account of any claims of third parties arising out of or relating to the Credit Facility.
The Borrower and the Guarantors each further states that it has carefully read the foregoing
release and indemnity, knows the contents thereof and grants the same as its own free act and deed.
8. Status of Parties. The relationship between the Administrative Agent and the
Lenders, on the one hand, and the Borrower, on the other hand, is solely that of administrative
agent and lenders, on the one hand, and borrower, on the other hand. Neither the Administrative
Agent nor the Lenders have any fiduciary or other special relationship with or duty to the Borrower
and none is created by the Loan Documents. Nothing contained in the Loan Documents, and no action
taken or omitted pursuant to the Loan Documents, is intended or shall be construed to create any
partnership, joint venture, association, or special relationship between the Borrower, on the one
hand, and the Administrative Agent and the Lenders, on the other hand, or in any way make the
Administrative Agent or any Lender a co-principal with the Borrower. In no event shall the
Administrative Agent’s or any Lender’s rights and interests under the Loan Documents be construed
to give the Administrative Agent or any Lender the right to control, or be deemed to indicate that
the Administrative Agent or any Lender is in control of, the business, properties, management or
operations of the Borrower.
9. Fees, Costs, Expenses and Expenditures. The Borrower shall pay all of the
Administrative Agent’s and the Lenders’ reasonable costs and expenses in connection with this
Fourth Amendment, including, without limitation, the reasonable fees and disbursements of the
Administrative Agent’s and the Lenders’ legal counsel.
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10. No Waiver. Nothing contained in this Fourth Amendment constitutes an agreement or
obligation by the Administrative Agent or the Lenders to grant any further amendments to any of the
Loan Documents, as amended and modified hereby, and, except as expressly set forth and contained in
Paragraph 1 of this Fourth Amendment, nothing contained herein constitutes a waiver or
release by the Administrative Agent or any Lender of any rights or remedies available to the
Administrative Agent or any Lender under the Loan Documents, as amended and modified hereby, at law
or in equity.
11. Inconsistencies. To the extent of any inconsistency between the terms,
conditions, and provisions of this Fourth Amendment and the terms, conditions, and provisions of
the Credit Agreement, the Notes, the Guaranties, and all other Loan Documents, the terms,
conditions, and provisions of this Fourth Amendment shall govern and control. All terms,
conditions, and provisions of the Credit Agreement, the Notes, the Guaranties, and all other Loan
Documents not inconsistent herewith shall remain in full force and effect and are hereby ratified
and confirmed by each party hereto.
12. Binding Effect; Governing Law. This Fourth Amendment shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and/or assigns. This
Fourth Amendment shall be governed by and construed in accordance with the laws of the State of New
York.
13. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS FOURTH AMENDMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).
EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION,
SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE
BEEN INDUCED TO ENTER INTO THIS FOURTH AMENDMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS PARAGRAPH 13.
14. Headings. The headings of the Articles, Sections, paragraphs and clauses of this
Fourth Amendment are inserted for convenience only and shall not be deemed to constitute a part of
this Fourth Amendment.
15. Counterparts. This Fourth Amendment may be executed in any number of
counterparts, each of which, when taken together, shall be deemed one and the same instrument.
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IN WITNESS WHEREOF, the Administrative Agent, the Lenders, the Borrower, and the Guarantors
have duly executed and delivered this Fourth Amendment, all as of the day and year first written
above.
| BORROWER: | ||||||||||||
| ATTEST: | INSURANCE SERVICES OFFICE, INC., as the Borrower | |||||||||||
By:
|
/s/ Xxxxxxx X. Xxxxxxxx | By: | /s/ Xxxx X. Xxxxxxxxxx | |||||||||
| Xxxxxxx X. Xxxxxxxx | Xxxx X. Xxxxxxxxxx | |||||||||||
| Secretary | Executive Vice President and | |||||||||||
| Chief Financial Officer | ||||||||||||
| GUARANTORS: | ||||||||||||
| ATTEST: | ISO CLAIMS SERVICES, INC., a Delaware corporation | |||||||||||
| AIR WORLDWIDE CORPORATION, a Delaware corporation | ||||||||||||
| ISO SERVICES, INC., a Delaware corporation | ||||||||||||
| XACTWARE SOLUTIONS, INC., a Delaware corporation | ||||||||||||
| INTERTHINX, INC., a California corporation | ||||||||||||
| VERISK HEALTH, INC., a Massachusetts corporation | ||||||||||||
| D2HAWKEYE, INC., a Delaware corporation | ||||||||||||
| VERISK ANALYTICS, INC., a Delaware corporation | ||||||||||||
| ISO STAFF SERVICES, INC., a Delaware corporation | ||||||||||||
By:
|
/s/ Xxxxxxx X. Xxxxxxxx | By: | /s/ Xxxx X. Xxxxxxxxxx | |||||||||
| Xxxxxxx X. Xxxxxxxx | Xxxx X. Xxxxxxxxxx | |||||||||||
| Secretary | Vice President of ISO Claims Services, Inc., | |||||||||||
| AIR Worldwide Corporation, | ||||||||||||
| ISO Services, Inc., | ||||||||||||
| Xactware Solutions, Inc., and Interthinx, Inc. | ||||||||||||
| ISO Staff Services, Inc. | ||||||||||||
| Vice President and Chief Financial Officer of Verisk Health, Inc. | ||||||||||||
| Vice President and Treasurer of D2Hawkeye, Inc. | ||||||||||||
| Executive Vice President and Chief Financial Officer of Verisk Analytics, Inc. | ||||||||||||
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| ADMINISTRATIVE AGENT: BANK OF AMERICA, N.A. |
||||
| By: | /s/ Xxxxxxx Xxxxxxx | |||
| Name: | Xxxxxxx Xxxxxxx | |||
| Title: | Vice President | |||
| LENDERS: BANK OF AMERICA, N.A., as a Lender, L/C Issuer, and Swing Line Lender |
||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Xxxxxxx X. Xxxxxx | ||||
| Senior Vice President | ||||
| JPMORGAN CHASE BANK, N.A. |
||||
| By: | /s/ Xxxxxxxx Xxxxxxxx | |||
| Name: | Xxxxxxxx Xxxxxxxx | |||
| Title: | Vice President | |||
| XXXXXX XXXXXXX BANK, N.A. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
XXXXX FARGO BANK, N.A. |
||||
| By: | /s/ Xxxxx Xxxxxxxx | |||
| Name: | Xxxxx Xxxxxxxx | |||
| Title: | Vice President | |||
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| SUNTRUST BANK |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| SOVEREIGN BANK |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| RBS CITIZENS, N.A. |
||||
| By: | /s/ Xxxx Xxxxxxx | |||
| Name: | Xxxx Xxxxxxx | |||
| Title: | Senior Vice President | |||
| THE NORTHERN TRUST COMPANY |
||||
| By: | /s/ Xxxxx X. Xxxxxx | |||
| Name: | Xxxxx X. Xxxxxx | |||
| Title: | Vice President | |||
[END OF SIGNATURES]
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