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CREDIT FACILITY AGREEMENT
BY AND AMONG
CCC INFORMATION SERVICES INC.
(AND CERTAIN OF ITS DIRECT AND INDIRECT SUBSIDIARIES)
AND
THE LENDERS THAT ARE PARTIES HERETO
AND
SIGNET BANK
(AS ADMINISTRATIVE AGENT)
Executed as of August 22, 1996
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TABLE OF CONTENTS
ARTICLE 1: THE CREDIT FACILITIES............................................ 1
1.1. Line of Credit Facility............................................. 1
1.1.1. Establishment of Credit Facility.......................... 1
1.1.2. Facility Maturity......................................... 2
1.1.3. Use of Proceeds........................................... 2
1.1.4. Line of Credit Note....................................... 2
1.1.5. Interest.................................................. 2
1.1.5.1. Establishment of Portions..................... 2
1.1.5.2. Interest Rate Determination................... 3
1.1.5.3. Selection of Rate Index....................... 3
1.1.5.4. Applicable Rate Margins....................... 3
1.1.5.5. Calculation of Interest....................... 4
1.1.5.6. Special LIBO Rate Provisions.................. 4
1.1.6. Repayment and Prepayment.................................. 6
1.1.6.1. Periodic Interest Payments.................... 6
1.1.6.2. Principal Payments -- Commitment Reduction.... 6
1.1.6.3. Principal Payments -- Periodic Sweep of
Excess Cash Flow.............................. 6
1.1.6.4. At Maturity or Termination.................... 6
1.1.6.5. Prepayments................................... 6
1.1.6.6. Principal Repayment -- Automatic.............. 7
1.1.6.7. Default Interest Payment...................... 7
1.1.6.8. Application of Payments....................... 7
1.1.6.9. Availability For Reborrowing.................. 7
1.2. Term Loan Facility.................................................. 8
1.2.1. Establishment of Credit Facility.......................... 8
1.2.2. Facility Maturity......................................... 8
1.2.3. Use of Proceeds........................................... 8
1.2.4. Term Loan Note............................................ 8
1.2.5. Interest.................................................. 9
1.2.5.1. Intentionally Blank........................... 9
1.2.5.2. Establishment of Portions..................... 9
1.2.5.3. Interest Rate Determination................... 9
1.2.5.4. Selection of Rate Index....................... 9
1.2.5.5. Applicable Rate Margins....................... 10
1.2.5.6. Calculation of Interest....................... 10
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1.2.5.7. Special LIBO Rate Provisions.................. 10
1.2.6. Repayment and Prepayment.................................. 12
1.2.6.1. Periodic Interest Payments.................... 12
1.2.6.2. Principal Payments -- Amortization............ 12
1.2.6.3. Principal Payments -- Periodic Sweep of
Excess Cash Flow.............................. 12
1.2.6.4. At Maturity or Termination.................... 12
1.2.6.5. Prepayments................................... 13
1.2.6.6. Default Interest Payment...................... 14
1.2.6.7. Application of Payments....................... 14
1.2.6.8. Availability For Reborrowing.................. 14
1.3. Determination of Commitment Amounts................................. 14
1.3.1. Initial Commitments....................................... 14
1.3.2. Mandatory Commitment Reductions for the Line of Credit
Facility.................................................. 14
1.3.3. Voluntary Reduction of Commitment......................... 15
1.4. Advances............................................................ 15
1.4.1. Requesting Advances....................................... 15
1.4.2. Funding Advances.......................................... 15
1.4.3. Automatic Line of Credit Advances......................... 16
1.4.4. Obligation to Advance..................................... 16
1.4.5. Indemnification for Revocation or Failure to Satisfy
Conditions................................................ 16
1.5. Payments in General................................................. 16
1.5.1. Manner and Place.......................................... 16
1.5.2. Special Payment Timing Issues............................. 16
1.5.3. Application of Payments................................... 16
1.5.4. Debiting Accounts......................................... 17
1.5.5. Default Interest.......................................... 17
1.5.6. Usury Savings Provision................................... 17
1.6. Release of Security................................................. 17
1.7. Fees and Other Compensation......................................... 17
1.7.1. Commitment Fee............................................ 17
1.7.2. Periodic Facility Fee..................................... 18
1.8. Issuance of Letters of Credit....................................... 18
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ARTICLE 2: CONDITIONS PRECEDENT.............................................. 18
2.1. Closing Conditions.................................................. 18
2.1.1. Compliance................................................ 18
2.1.1.1. Fees and Expenses............................. 18
2.1.1.2. Representations............................... 18
2.1.1.3. No Default.................................... 18
2.1.1.4. No Material Change............................ 18
2.1.2. Documents................................................. 19
2.1.2.1. Credit Agreement.............................. 19
2.1.2.2. Fee Agreement................................. 19
2.1.2.3. Solvency Certificates......................... 19
2.1.2.4. Compliance Certificates....................... 19
2.1.2.5. Opinions of Counsel........................... 19
2.1.2.6. Authorization Documents -- Each Borrower...... 19
2.1.2.7. Other Documents............................... 19
2.2. Conditions to Initial Advance....................................... 19
2.2.1. Compliance................................................ 20
2.2.1.1. Fees and Expenses............................. 20
2.2.1.2. Representations............................... 20
2.2.1.3. No Default.................................... 20
2.2.1.4. No Material Change............................ 20
2.2.2. Documents................................................. 20
2.2.2.1. Amendment to Credit Agreement................. 20
2.2.2.2. Update to Credit Agreement Schedules.......... 20
2.2.2.3. Advance Request............................... 21
2.2.2.4. Promissory Notes.............................. 21
2.2.2.5. Security Agreement and Related Documents...... 21
2.2.2.6. Intellectual Property Security Agreements..... 21
2.2.2.7. Assignment of Material Contracts.............. 21
2.2.2.8. Pledge and Security Agreement (By Top Level
Borrower)..................................... 21
2.2.2.9. Pledge and Security Agreement (By Guarantor).. 22
2.2.2.10. Guaranty Agreement............................ 22
2.2.2.11. Insurance..................................... 22
2.2.2.12. Solvency Certificates......................... 22
2.2.2.13. Compliance Certificates....................... 22
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2.2.2.14. Opinions of Counsel........................... 22
2.2.2.15. Payoff Instructions for Prior Indebtedness.... 23
2.2.2.16. Authorization Documents -- Each Borrower...... 23
2.2.2.17. Authorization Documents -- Guarantor.......... 23
2.2.2.18. Officer's Certificates........................ 23
2.2.2.19. Other Documents............................... 24
2.2.3. Consummation of Guarantor's IPO........................... 24
2.2.4. Satisfaction of Existing Indebtedness..................... 24
2.2.5. Cash Flow Leverage........................................ 25
2.3. Line of Credit Advances (After the Initial Advances)................ 25
2.3.1. Advance Request........................................... 25
2.3.2. Cash Flow Leverage........................................ 25
2.3.3. Other Documents........................................... 25
2.3.4. Compliance................................................ 25
2.3.4.1. Fees and Expenses............................. 25
2.3.4.2. Representations............................... 25
2.3.4.3. No Default.................................... 25
2.3.4.4. No Material Change............................ 26
ARTICLE 3: REPRESENTATIONS AND WARRANTIES.................................... 26
3.1. Organization and Good Standing...................................... 26
3.2. Power and Authority................................................. 26
3.3. Validity and Legal Effect........................................... 26
3.4. No Violation of Laws or Agreements.................................. 26
3.5. Title to Assets; Existing Encumbrances; Intellectual and Real
Property............................................................ 27
3.6. Capital Structure and Equity Ownership.............................. 27
3.7. Subsidiaries, Affiliates and Investments............................ 27
3.8. Material Contracts.................................................. 28
3.9. Licenses and Authorizations......................................... 28
3.10. Taxes and Assessments............................................... 28
3.11. Litigation and Legal Proceedings.................................... 28
3.12. Accuracy of Financial Information................................... 29
3.13. Accuracy of Other Information....................................... 29
3.14. Compliance with Laws Generally...................................... 29
3.15. ERISA Compliance.................................................... 29
3.16. Environmental Compliance............................................ 30
3.17. Margin Rule Compliance.............................................. 31
3.18. Fees and Commissions................................................ 31
3.19. Solvency............................................................ 31
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ARTICLE 4: AFFIRMATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . . 32
4.1. Financial Covenants and Ratios . . . . . . . . . . . . . . . . 32
4.1.1. Total Charge Coverage Ratio . . . . . . . . . . . . 32
4.1.2. Cash Flow Leverage Ratio . . . . . . . . . . . . . . 32
4.2. Periodic Financial Statements . . . . . . . . . . . . . . . . 33
4.2.1. Monthly Financial Statements . . . . . . . . . . . . 33
4.2.2. Quarterly Financial Statements . . . . . . . . . . . 33
4.2.3. Annual Financial Statements . . . . . . . . . . . . 33
4.3. Other Financial and Specialized Reports. . . . . . . . . . . . 34
4.4. Fiscal Year . . . . . . . . . . . . . . . . . . . . . . . . . 34
4.5. Books and Records . . . . . . . . . . . . . . . . . . . . . . 34
4.6. Existence and Good Standing . . . . . . . . . . . . . . . . . 34
4.7. Deposit Accounts . . . . . . . . . . . . . . . . . . . . . . . 34
4.8. Insurance; Maintenance of Properties; Disaster Contingency . . 35
4.8.1. General Insurance Provisions . . . . . . . . . . . . 35
4.8.2. Disaster Recovery and Contingency Program . . . . . 35
4.9. Loan Purpose . . . . . . . . . . . . . . . . . . . . . . . . . 35
4.10. Litigation; Occurrence of Defaults . . . . . . . . . . . . . . 35
4.11. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
4.12. Management Changes . . . . . . . . . . . . . . . . . . . . . . 36
4.13. Costs and Expenses . . . . . . . . . . . . . . . . . . . . . . 36
4.14. Compliance with Laws . . . . . . . . . . . . . . . . . . . . . 36
4.14.1. General . . . . . . . . . . . . . . . . . . . . . . 36
4.14.2. ERISA . . . . . . . . . . . . . . . . . . . . . . . 36
4.14.3. Environmental . . . . . . . . . . . . . . . . . . . 37
4.15. Further Actions . . . . . . . . . . . . . . . . . . . . . . . 37
4.15.1. Additional Collateral . . . . . . . . . . . . . . . 37
4.15.2. Further Assurances . . . . . . . . . . . . . . . . . 37
4.15.3. Estoppel Certificate . . . . . . . . . . . . . . . . 37
4.15.4. Waivers and Consents . . . . . . . . . . . . . . . . 38
4.15.5. Additional Material Contracts, Licenses and
Authorizations . . . . . . . . . . . . . . . . . . 38
4.16. Post Closing Items . . . . . . . . . . . . . . . . . . . . . . 38
4.17. Other Information . . . . . . . . . . . . . . . . . . . . . . 39
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ARTICLE 5: NEGATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . . . 39
5.1. Capital Expenditures . . . . . . . . . . . . . . . . . . . . . 39
5.2. Additional Indebtedness . . . . . . . . . . . . . . . . . . . 40
5.3. Guaranties . . . . . . . . . . . . . . . . . . . . . . . . . . 41
5.4. Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
5.5. Liens and Encumbrances; Negative Pledge . . . . . . . . . . . 41
5.6. Transfer of Assets . . . . . . . . . . . . . . . . . . . . . . 43
5.7. Acquisitions and Investments . . . . . . . . . . . . . . . . . 43
5.8. New Ventures; Mergers . . . . . . . . . . . . . . . . . . . . 44
5.9. Transactions with Affiliates . . . . . . . . . . . . . . . . . 44
5.10. Distributions or Dividends . . . . . . . . . . . . . . . . . . 45
5.11. Payment of Subordinated Indebtedness . . . . . . . . . . . . . 45
5.12. Payment of Management Fees . . . . . . . . . . . . . . . . . . 45
5.13. Issuance of Additional Equity . . . . . . . . . . . . . . . . 45
5.14. Removal of Assets . . . . . . . . . . . . . . . . . . . . . . 45
5.15. Modifications to Organic Documents . . . . . . . . . . . . . . 46
5.16. Modifications to Material Relationships and Agreements . . . . 46
5.17. Margin Stock Restrictions; Other Federal Statutes . . . . . . 46
ARTICLE 6: ADDITIONAL COLLATERAL AND RIGHT OF SET OFF . . . . . . . . . . 47
6.1. Additional Collateral . . . . . . . . . . . . . . . . . . . . 47
6.2. Right of Set-Off . . . . . . . . . . . . . . . . . . . . . . . 47
6.3. Additional Rights . . . . . . . . . . . . . . . . . . . . . . 47
ARTICLE 7: DEFAULT AND REMEDIES . . . . . . . . . . . . . . . . . . . . . 47
7.1. Events of Default . . . . . . . . . . . . . . . . . . . . . . 47
7.1.1. Payment Obligations . . . . . . . . . . . . . . . . 47
7.1.2. Representations and Warranties . . . . . . . . . . . 47
7.1.3. Financial Covenants . . . . . . . . . . . . . . . . 48
7.1.4. Other Covenants in Loan Documents . . . . . . . . . 48
7.1.5. Default Under Other Agreements with Lenders . . . . 48
7.1.6. Default Under Material Agreements with Other
Parties . . . . . . . . . . . . . . . . . . . . . 48
7.1.7. Security Interest . . . . . . . . . . . . . . . . . 49
7.1.8. Change of Control . . . . . . . . . . . . . . . . . 49
7.1.9. Government Action . . . . . . . . . . . . . . . . . 49
7.1.10. Insolvency . . . . . . . . . . . . . . . . . . . . . 49
7.1.11. Loss or Revocation of Guaranty . . . . . . . . . . . 49
7.1.12. Additional Liabilities . . . . . . . . . . . . . . . 50
7.1.13. Material Adverse Change . . . . . . . . . . . . . . 50
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7.2. Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
7.2.1. General; Acceleration . . . . . . . . . . . . . . . 50
7.2.2. Other . . . . . . . . . . . . . . . . . . . . . . . 50
ARTICLE 8: THE ADMINISTRATIVE AGENT . . . . . . . . . . . . . . . . . . . 50
8.1. Appointment, Authorization and Grant of Authority . . . . . . 50
8.2. Acceptance of Appointment . . . . . . . . . . . . . . . . . . 51
8.3. Administrative Agent's Relationship with Borrowers . . . . . . 51
8.4. Non-Reliance on Administrative Agent and Other Lenders . . . . 51
8.5. Reliance by Administrative Agent . . . . . . . . . . . . . . . 52
8.6. Delegation of Duties; Additional Reliance by Administrative
Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
8.7. Acting on Instructions of Lenders . . . . . . . . . . . . . . 52
8.8. Actions Upon Occurrence of Default or Event of Default . . . . 53
8.9. Administrative Agent's Rights as Lender in Individual
Capacity . . . . . . . . . . . . . . . . . . . . . . . . . 53
8.10. Advances By Administrative Agent . . . . . . . . . . . . . . . 53
8.11. Payments to Lenders . . . . . . . . . . . . . . . . . . . . . 54
8.12. Pro-Rata Sharing of Setoff Proceeds . . . . . . . . . . . . . 54
8.13. Limitation on Liability of Administrative Agent . . . . . . . 54
8.14. Indemnification . . . . . . . . . . . . . . . . . . . . . . . 55
8.15. Resignation; Successor Administrative Agent . . . . . . . . . 55
ARTICLE 9: DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . 56
9.1. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . 56
9.2. Rules of Construction . . . . . . . . . . . . . . . . . . . . 68
9.2.1. Plural; Gender . . . . . . . . . . . . . . . . . . . 68
9.2.2. Financial and Accounting Terms . . . . . . . . . . . 68
ARTICLE 10: MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . 68
10.1. Indemnification, Reliance and Assumption of Risk
Provisions . . . . . . . . . . . . . . . . . . . . . . . . . 68
10.2. Assignment; Disclosure of Information to Third Parties . . . . 69
10.3. Binding Effect and Governing Law . . . . . . . . . . . . . . . 70
10.4. No Waiver; Delay . . . . . . . . . . . . . . . . . . . . . . . 70
10.5. Modifications and Amendments . . . . . . . . . . . . . . . . . 71
10.6. Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
10.7. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
10.8. Time of Day . . . . . . . . . . . . . . . . . . . . . . . . . 73
10.9. Relationship with Prior Agreements . . . . . . . . . . . . . . 73
10.10. Severability . . . . . . . . . . . . . . . . . . . . . . . . . 73
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10.11. Termination and Survival . . . . . . . . . . . . . . . . . . . 74
10.12. Reinstatement . . . . . . . . . . . . . . . . . . . . . . . . 74
10.13. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . 74
10.14. Conflict Provision . . . . . . . . . . . . . . . . . . . . . . 74
10.15. Waiver of Suretyship Defenses . . . . . . . . . . . . . . . . 74
10.16. Waiver of Liability . . . . . . . . . . . . . . . . . . . . . 74
10.17. Forum Selection; Consent to Jurisdiction . . . . . . . . . . . 75
10.18. Waiver of Jury Trial . . . . . . . . . . . . . . . . . . . . . 76
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SCHEDULES AND EXHIBITS:
SCHEDULES:
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Schedule A List of Borrowers
Schedule 3.1 Good Standing / Foreign Qualification Jurisdictions
Schedule 3.2 Missing Consents
Schedule 3.5 Existing Encumbrances
Schedule 3.5A Intellectual Property
Schedule 3.5B Real Property Interests
Schedule 3.5C Operating Names / Trade Names
Schedule 3.6 Capital Structure / Equity Ownership
Schedule 3.7 Subsidiaries, Affiliates & Investments
Schedule 3.8 Material Contracts
Schedule 3.9 Licenses and Authorizations
Schedule 3.10 Taxes and Assessments
Schedule 3.11 Material Litigation
Schedule 3.18 Fees and Commissions
Schedule 4.7 Existing Deposit Accounts
Schedule 5.2 Permitted Additional Indebtedness
Schedule 5.5 Permitted Additional Liens
EXHIBITS:
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Exhibit 1.4.1 Form of Advance Request
Exhibit 4.2.1 Form of Monthly Financial Statements
Exhibit 4.2 Form of Periodic Compliance Certificate
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CREDIT FACILITY AGREEMENT
THIS CREDIT FACILITY AGREEMENT (as defined in Article 9 hereof, along
with all other defined terms, this "Agreement") is made and effective as of
August 22, 1996, by and among CCC INFORMATION SERVICES INC. ("CCC"), AND EACH
DIRECT AND INDIRECT SUBSIDIARY OF CCC (IF ANY) THAT ARE LISTED ON SCHEDULE A
HERETO (as more fully defined in Article 9 hereof, CCC and each such
Subsidiary are sometimes referred to herein individually as a "Borrower" and
collectively as the "Borrowers"), AND EACH FINANCIAL INSTITUTION THAT FROM
TIME TO TIME IS A "LENDER" HEREUNDER (as more fully defined in Article 9
hereof, individually a "LENDER"; collectively, the "Lenders"), AND SIGNET
BANK (as more fully defined in Article 9 hereof, "Administrative Agent").
R E C I T A L S
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WHEREAS, Borrowers desire and have applied to Lenders for a credit
facility (to be administered by the Administrative Agent) consisting of (a) a
line of credit arrangement pursuant to which up to $20 million can be
borrowed from time to time on a senior secured basis, AND (b) (under certain
circumstances and conditions described herein) a term loan credit arrangement
pursuant to which up to $15 million can be borrowed on a senior secured
bases; AND
WHEREAS, Lenders are willing to accommodate the request for credit upon
and subject to the terms, conditions and provisions of the Loan Documents;
NOW, THEREFORE, in consideration of the covenants and agreements
contained in the Loan Documents, and other good and valuable consideration,
receipt and sufficiency of which are hereby acknowledged, and intending to be
legally bound hereby, each Lender and Administrative Agent hereby agree as
follows:
ARTICLE 1: THE CREDIT FACILITIES
1.1. LINE OF CREDIT FACILITY.
1.1.1. ESTABLISHMENT OF CREDIT FACILITY. Subject to the terms
and conditions of and in reliance upon the representations and warranties
contained in the Loan Documents, if each of the conditions precedent under
Section 2.2 hereof is satisfied (on or before October 31, 1996), THEN each
Lender will lend funds to Borrowers on a senior secured basis from time to
tome prior to the Line of Credit Maturity Date (as determined in accordance
with Section 1.1.2 hereof) in an aggregate amount at any time outstanding
not to exceed its Line of Credit Commitment Percentage (on a Pro Rata basis)
of the Available Credit Portion (as determined in accordance with Section 1.3
hereof).
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1.1.2. FACILITY MATURITY. The Line of Credit Facility will
mature on October 1, 2001 (as may be extended from time to time in Lender's
sole discretion, "Line of Credit Maturity Date").
1.1.3. USE OF PROCEEDS. The funds advanced under this Line of
Credit Facility may be used exclusively as follows (BUT ONLY to the extent
not otherwise advanced for such purpose under Section 1.2.3 hereof):
a. To satisfy and refinance the indebtedness owed by CCC to a
group of lenders the agent for which is Canadian Imperial
Bank of Commerce, AND
b. The balance of the Available Credit Portion (if any) to pay
(i) for closing costs and fees associated with consummating
and documenting the transactions contemplated by this
Agreement, AND (ii) for acquisitions of assets and Capital
Expenditures otherwise permitted for Borrower under the Loan
Documents, AND (iii) for general working capital and other
legitimate corporate expenditures (including, without
limitation, payment of lawful dividends and distributions
permitted under Section 5.10 hereof), AND (iv) for such other
purposes as specifically authorized hereunder or in writing by
Administrative Agent (in the sole and absolute discretion of
the Required Lenders).
1.1.4. LINE OF CREDIT NOTE. The indebtedness under the Line of
Credit Facility and the corresponding obligation of each Borrower (jointly
and severally) to repay Lenders with interest in accordance with the terms
hereof will be evidenced by one or more Line of Credit Notes (each, as
amended, restated, replaced, supplemented, extended or renewed hereafter,
"Line of Credit Note"; collectively, the "Line of Credit Notes") payable to
the order of each Lender in accordance with its Line of Credit Commitment
Percentage. The Line of Credit Notes will be due and payable in full on the
Line of Credit Maturity Date. The aggregate stated principal amount of the
Line of Credit Notes will be the Line of Credit Commitment established as of
the Closing Date pursuant to Section 1.3 hereof; PROVIDED, HOWEVER, that the
maximum liability under such Line of Credit Notes will be limited at all
times to the actual amount of indebtedness (including principal, interest,
fees and expenses) then outstanding under the Line of Credit Facility. Each
Lender is authorized to note or endorse the date and amount of each Advance
and payment under the Line of Credit Facility on a schedule annexed to and
constituting a part of its Line of Credit Note. Such notations or
endorsements, if made without manifest error, will constitute PRIMA FACIA
evidence of the information noted or endorsed on such schedule, but the
absence of any such notation or endorsement will not limit or otherwise
affect the obligations and liabilities of Borrowers thereunder of hereunder.
1.1.5. INTEREST. Interest under the Line of Credit Facility
(and with respect to any other amounts advanced to or on behalf of Borrowers
under the Loan Documents) will be determined and imposed in accordance with
the following provisions (and, as applicable, Section 1.5.5 hereof and
Section 1.5.6 hereof):
1.1.5.1. ESTABLISHMENT OF PORTIONS. for purposes of
determining interest, Borrowers may designate and subdivide the aggregate
outstanding balance under the Line of
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Credit Facility (including any other amounts advanced to or on behalf of any
Borrower under the Loan Documents) into a maximum of eight (8) Portions
(inclusive of the number of Portions permitted under the Term Loan Facility).
No Portion may be less than $500,000 (unless it is designated as $0.00), AND
all Portions collectively must total the aggregate outstanding balance under
the Line of Credit Facility. If there is less than $1,000,000 outstanding
under the Line of Credit Facility, then only one Portion will be permitted.
1.1.5.2. INTEREST RATE DETERMINATION. The aggregate
outstanding principal balance under each Portion will bear interest (computed
daily until paid, whether prior to or after the Line of Credit Maturity Date)
at the applicable Rate Index (as determined in accordance with Section
1.1.5.3 hereof) PLUS the applicable Rate Margin (as determined in accordance
with Section 1.1.5.4 hereof). If the Prime Rate is the applicable Rate Index
for a Portion, the interest rate on such Portion will change when and as the
Prime Rate or Rate Margin changes; AND if an Adjusted LIBO Rate is the
applicable Rate Index for a Portion, the interest rate on such Portion will
be established on the first day of each Interest Period for such Portion and
will not change during such Interest Period, except to the extent the Rate
Margin changes during the Interest Period or as otherwise permitted under
Section 1.1.5.6 hereof. NOTWITHSTANDING THE FOREGOING, the applicable
interest rate for the entire outstanding balance under the Line of Credit
Facility from the Settlement Date on which the initial Advance under the Line
of Credit Facility is made until the first date on which the Rate Index may
be changed under Section 1.1.5.3 hereof will be the Prime Rate as of such
Settlement Date PLUS a Rate Margin determined as of such Settlement Date in
accordance with Section 1.1.5.4 hereof using an amount for Funded Debt as of
such Settlement Date (and inclusive of such Advance).
1.1.5.3. SELECTION OF RATE INDEX. The applicable Rate
Index for each Portion will be either the Prime Rate or an Adjusted LIBO
Rate. The applicable Rate Index for each Portion may be changed (at the
election of the Borrowers) as of the first calendar day after the end of the
applicable Interest Period for such Portion. At least two (2) Business Days
but not more than ten (10) Business Days before any day on which the Rate
Index may be changed, Borrowers (through an Authorized Officer) must notify
Administrative Agent in writing of (a) the dollar amount of each Portion (if
more than one exists) AND (b) the selected Rate Index for each Portion during
the subsequent rate period (including, if applicable, the selected length of
the Interest Period for balances accruing interest at the Adjusted LIBO
Rate). If Administrative Agent does not timely receive such written
notification as to any Portion, the Prime Rate will be the applicable Rate
Index for the entire outstanding balance of such unspecified Portion during
the subsequent rate period. NOTWITHSTANDING THE FOREGOING, with respect to
the proceeds of each Advance under the Line of Credit Facility, unless
Borrowers otherwise request the Adjusted LIBO Rate at the time of such Advance
(and an otherwise unallocated Portion then exists), THEN the Prime Rate will
be the applicable Rate Index from the corresponding Settlement Date for such
Advance until the next date on which the Rate Index may be changed hereunder.
1.1.5.4. APPLICABLE RATE MARGINS. The Rate Margin
applicable to the Line of Credit Facility will be established as of the
initial Settlement Date and as of the first calendar day of the first
calendar month of each fiscal quarter and will be based upon the Leverage
Ratio of (a) Funded Debt as of the date of establishment of such Rate Margin
TO (b) OFC (I.E., Operating Cash Flow) for the four consecutive fiscal
quarter period ended on the last
-3-
day of the most recent fiscal quarter reflected on the most recent quarterly
financial statements delivered to Administrative Agent in accordance with
Section 4.2 hereof, AND will be determined according to the following
schedule:
Adjusted
Prime Rate LIBO Rate
Leverage Ratio Margin Margin
-------------- ------ ------
LESS THAN 2.0 0.00% 1.50%
GREATER THAN OR EQUAL TO 2.0 but LESS THAN 3.0 1.00% 2.00%
GREATER THAN OR EQUAL TO 3.0 2.00% 3.00%
In determining the amount of Funded Debt as of the date of establishing such
Rate Margin, unless Borrowers otherwise provide Administrative Agent with
evidence of such amount in a form acceptable to Administrative Agent, THEN
Administrative Agent may use and rely on the amount of Funded Debt as
reflected on the most recent quarterly financial statements delivered to
Administrative Agent in accordance with Section 4.2 hereof. NOTWITHSTANDING
THE FOREGOING, if Administrative Agent does not timely receive acceptable
quarterly financial statements in accordance with Section 4.2 hereof, THEN
Administrative Agent (in its sole and absolute discretion) may deem the
applicable Rate Margin to be the highest Rate margin for the applicable Rate
Index reflected in the chart above, retroactive to the first calendar day of
the then-current fiscal quarter. FURTHER NOTWITHSTANDING THE FOREGOING (or
any other provision hereof regarding the timing of establishing the
applicable Rate Margin), upon the funding of any Advance after the Closing
Date for a purpose set forth in Section 1.1.3 hereof that results in the
outstanding balance under the Line of Credit Facility exceeding the
outstanding balance as of the most recent change in the Rate Margin by
$1,000,000 or more, THEN the applicable Rate Margin hereunder (at the option
of the Required Lenders) may be adjusted to reflect the additional amount of
Funded Debt thereby outstanding.
1.1.5.5. CALCULATION OF INTEREST. Interest under the
Line of Credit Facility will be calculated, accrued, imposed and payable on
the basis of a 360-day year for the actual number of days elapsed. Interest
will begin to accrue on the outstanding principal amount of the Line of
Credit Facility (and on any other amounts advanced to or on behalf of any
Borrower under the Loan Documents) on and as of the date such funds are
advanced.
1.1.5.6. SPECIAL LIBO RATE PROVISION. The following
provisions will apply with respect to the Adjusted LIBO Rate, notwithstanding
any other provision hereof:
a. CHANGE IN ADJUSTED LIBO RATE. The
Adjusted LIBO Rate may be automatically adjusted by any Lender from time to
time on a prospective basis to account for any additional or increased cost of
maintaining any necessary reserves for Eurodollar deposits (including,
without limitation, any increase in the Reserve Percentage) or increased
costs due to changes in the applicable law occurring subsequent to the
commencement of the then-applicable Adjusted LIBO Rate Interest Period. Such
Lender will give Administrative Agent notice of any such determination and
adjustment within a reasonable period of time thereafter. Upon receipt of any
such notice, Administrative Agent will provide a copy thereof to
-4-
Borrowers, AND (upon Borrowers' written request through Administrative Agent)
such Lender will furnish a statement to Administrative Agent and Borrowers
setting forth the basis for adjusting such Adjusted LIBO Rate and the method
for determining the amount of such adjustment. A determination by any Lender
hereunder will be conclusive absent manifest error. If any Lender provides
any such notice of adjustment under this Subsection, THEN Borrowers may elect
to change the then-applicable Rate Index (using the same Rate Margin
category) to the Prime Rate for any Portion then subject to an adjusted LIBO
Rate. Such election to change the Rate Index may be made by providing
Administrative Agent written notice thereof at any time within the first 10
Business Days after receipt of the notice of adjustment from such Lender
through Administrative Agent (notwithstanding the restriction hereunder
limiting such Rate Index changes to certain dates, BUT subject to the
requirement to pay actual costs incurred by such Lender as described in
Section 1.1.6.5.e hereof). Upon Administrative Agent's receipt of such a
written election, the identified Portion will thereupon begin to accrue
interest at the Prime Rate plus the Rate Margin (as applicable for the same
Leverage Ratio level as was previously applicable for the Adjusted LIBO Rate)
for the remainder of the then-current Interest Period for such Portion.
NOTWITHSTANDING THE FOREGOING, no Lender shall be entitled to adjust the
Adjusted LIBO Rate under this Clause "A" to account for such additional or
increased cost pursuant to Section 4.13 hereof.
b. UNAVAILABILITY OF EURODOLLAR FUNDS. An
Adjusted LIBO Rate will not be available for Portions under the Line of
Credit Facility if any Lender at any time prior to the commencement of the
relevant Interest Period determines or reasonably believes that (1)
Eurodollar deposits equal to the principal amount of such Portion for the
applicable Interest Period are unavailable, OR (2) an Adjusted LIBO Rate will
not adequately and fairly reflect the cost of maintaining balances under the
Line of Credit Facility, OR (3) by reason of circumstances affecting
Eurodollar markets, adequate and reasonable means do not then exist for
ascertaining an Adjusted LIBO Rate. Such Lender will give Administrative
Agent notice of any such event within a reasonable time thereafter. Upon
receipt of any such notice, Administrative Agent will provide a copy thereof
to Borrowers, AND (upon borrowers' written request through Administrative
Agent) such Lender will furnish a statement to Administrative Agent and
Borrowers setting forth the basis for such determination or reasonable
belief. A determination or belief by any Lender hereunder will be conclusive
absent manifest error.
c. ILLEGALITY. An Adjusted LIBO Rate will
also not be available for the Line of Credit Facility in any Lender at any
time determines or reasonably believes that it is unlawful or impossible to
fund or maintain sufficient Eurodollar liabilities for the Line of Credit
Facility under an Adjusted LIBO Rate. Such Lender will give Administrative
Agent notice of any such event within a reasonable time thereafter. Upon
receipt of any such notice, Administrative Agent will provide a copy thereof
to Borrowers, AND (upon Borrowers' written request through Administrative
Agent) such Lender will furnish a statement to Administrative Agent and
Borrowers setting forth the basis for such determination or reasonable
belief. A determination or belief by any Lender hereunder will be conclusive
absent manifest error.
-5-
d. ALTERNATIVE RATE. During the occurrence of an event
contemplated by either Clause "b" of this Subsection or Clause "c" of this
Subsection, each Lender's obligation hereunder to fund or maintain balances
under an Adjusted LIBO Rate will be suspended, and during such period, the
outstanding balances under the Line of Credit Facility will bear interest at
the Prime Rate plus the appropriate Rate Margin (determined in accordance with
Section 1.1.5.4 hereof).
1.1.6. REPAYMENT AND PREPAYMENT. Each Borrower (jointly and severally)
hereby promise to pay to Administrative Agent (for the benefit of Lenders)
the aggregate indebtedness under the Line of Credit Facility (and other Loan
Document) in accordance with the following provisions:
1.1.6.1. PERIODIC INTEREST PAYMENT. Interest accrued under the
Line of Credit Facility will be due and payable monthly in arrears on the
first calendar day following the end of each such month and on the first
calendar day following the end of each Interest Period for any Portion
accruing interest at an Adjusted LIBO Rate, commencing on the first such date
after the Closing Date.
1.1.6.2 PRINCIPAL PAYMENTS--COMMITMENT REDUCTION. Intentionally
Blank.
1.1.6.3. PRINCIPAL PAYMENTS--PERIODIC SWEEP OF EXCESS CASH FLOW.
Intentionally Blank.
1.1.6.4. AT MATURITY OR TERMINATION. The entire aggregate
outstanding indebtedness under the Line of Credit Facility (including
principal, interest, fees and expenses) is due and payable in its entirety in
immediately available funds on the Line of Credit Maturity Date.
NOTWITHSTANDING THE FOREGOING, the entire aggregate outstanding indebtedness
under the Line of Credit Facility (INCLUDING all principal, interest, fees and
expenses) will be due and payable in its entirety in immediately available
funds upon any earlier termination of either the Line of Credit Commitment,
the Line of Credit Facility or this Agreement, in each instance, in
accordance with the terms hereof.
1.1.6.5. PREPAYMENTS.
a. VOLUNTARY PREPAYMENTS. The outstanding principal balance
under the Line of Credit Facility may be prepaid in whole or in part at any
time without premium or penalty, EXCEPT as a provided in Clause "e" of this
Subsection.
b. MANDATORY PREPAYMENTS--EXCESSIVE BALANCE. If the aggregate
outstanding indebtedness under the Line of Credit Facility at any time
exceeds the Available Credit Portion (as determined in accordance with
Section 1.3 hereof), THEN such excess amount outstanding must be prepaid
immediately to Administrative Agent for the Benefit of Lenders (without
necessity of notice or demand by Administrative Agent).
-6-
c. MANDATORY PREPAYMENTS--EQUITY OFFERINGS AND ASSET SALES.
If any Borrower engages in an offering of its equity securities or if any
Borrower sells, transfers or otherwise disposes of any assets (other than
inventory or other assets sold in the ordinary course of business with the
proceeds thereof promptly reinvested in similar assets at similar locations)
exceeding an aggregate fair market value of $1,000,000 in any transaction or
series of related transactions, THEN (unless the Administrative Agent
otherwise consents with the concurrence of the Lenders) a prepayment must be
immediately made on the outstanding indebtedness under the Line of Credit
Facility (UNLESS a balance then exists under the Term Loan Facility and such
prepayment is made under Section 1.2.6.5.c hereof). The amount of any such
mandatory prepayment will be the higher of the cash proceeds or the cash
equivalent of the fair market value of any such equity offering or asset
dispositions NET OF (1) reasonable commissions and expenses actually incurred
to unrelated third parties in connection with such transactions AND (2)taxes
actually due as a direct result of such transactions (as such taxes are
estimated and certified to Administrative Agent by a certified public
accountant or financial officer of such Borrower, in either instance,
acceptable to Administrative Agent).
d. IN GENERAL. Any prepayment under the Line of Credit
Facility mush include all accrued but unpaid interest under the Line of
Credit Facility allocable to the amount prepaid through the date of such
prepayment.
e. ADJUSTED LIBO RATE PREPAYMENTS. In connection with any
prepayment of all or any portion of the outstanding balance under the Line of
Credit Facility upon which an Adjusted LIBO Rate is then applicable on any
day other than the last day of an Interest Period--whether such prepayment is
voluntary, mandatory, by demand, acceleration or otherwise--Borrowers must
pay Administrative Agent for the benefit of Lenders all costs, losses and
expenses (including funding costs) that any arise or be incurred as a result
of or in connection with such prepayment, as such costs, losses and expenses
may be calculated by each such Lender. Upon written request to Lenders
(through Administrative Agent), each such Lender will furnish a statement
setting forth the basis for such calculation. A determination or calculation
by any Lender hereunder will be conclusive absent manifest error.
1.1.6.6. PRINCIPAL REPAYMENT--AUTOMATIC. [Intentionally Blank]
1.1.6.7. DEFAULT INTEREST PAYMENT. Any payment hereunder or under
the Line of Credit Note during the existence of a Default or an Event of
Default hereunder must include the payment of any default interest due
pursuant to Section 1.5.5 hereof.
1.1.6.8. APPLICATION OF PAYMENTS. Payments hereunder (including
prepayments) will be applied in accordance with Section 1.5.3 hereof.
NOTWITHSTANDING THE FOREGOING, payments and prepayments allocable to
principal under the Line of Credit Facility will be applied to repay Portions
accruing interest at the Prime Rate first and then to repay Portions accruing
interest at the Adjusted LIBO Rate (applying first to Portions having an
Interest Period with the longest remaining time to maturity).
1.1.6.9. AVAILABILITY FOR REBORROWING. Principal amounts repaid or
prepaid under the Line of Credit Facility prior to the Line of Credit
Maturity Date will be
-7-
available for reborrowing pursuant to and in accordance with the terms hereof
up to the Available Credit Portion.
1.2 TERM LOAN FACILITY.
1.2.1. ESTABLISHMENT OF CREDIT FACILITY. Subject to the terms and
conditions of and in reliance upon the representations and warranties
contained in the Loan Documents, if each of the conditions precedent under
Section 2.2 hereof is satisfied (on or before October 31, 1996), THEN each
Lender will lend funds to Borrowers on a senior secured basis through a
single set of Advances on the Closing Date in an aggregate principal amount
advanced not to exceed its Term Loan Commitment Percentage (on a Pro Rata
basis) of the Term Loan Commitment (as determined in accordance with Section
1.3 hereof).
1.2.2. FACILITY MATURITY. The Term Loan Facility will mature on
October 1, 2001 (as may be extended from time to time in Lenders' sole and
absolute discretion, "Term Loan Maturity Date").
1.2.3 USE OF PROCEEDS. The funds advanced under this Term Loan
Facility may be used exclusively as follows (BUT ONLY to the extent not
otherwise advanced for such purpose under Section 1.1.3 hereof):
a. To satisfy and refinance the indebtedness owed by CCC to a group
of lenders the agent for which is Canadian Imperial Bank of
Commerce, AND
b. The balance of the Term Loan Commitment (if any) to pay (i) for
closing costs and fees associated with consummating and
documenting the transactions contemplated by this Agreement, AND
(ii) for such other purposes as specifically authorized hereunder
or in writing by Lender (in the sole and absolute discretion of
the Required Lenders).
1.2.4. TERM LOAN NOTE. The indebtedness under the Term Loan
Facility and the corresponding obligation of each Borrower (jointly and
severally) to repay Lenders with interest in accordance with the terms hereof
will be evidenced by one or more Term Loan Notes (each, as amended, restated,
replaced, supplemented, extended or renewed hereafter, "Term Loan Note";
collectively, the "Term Loan Notes") payable to the order of each Lender in
accordance with its Term Loan Commitment Percentage. The Term Loan Notes will
be due and payable in full on the Term Loan Maturity Date. The aggregate
stated principal amount of the Term Loan Note will be the Term Loan Commitment
established as of the Closing Date pursuant to Section 1.3 hereof; PROVIDED,
HOWEVER, that the maximum liability under such Term Loan Notes will be limited
at all times to the actual amount of indebtedness (including principal,
interest, fees and expenses) then outstanding under the Term Loan Facility.
Each Lender is authorized to note or endorse the date and amount of each
Advance and each payment under the Term Loan Facility on a schedule annexed to
and constituting a part of its Term Loan Note. Such notations or
endorsements, if made without manifest error, will constitute PRIMA FACIE
evidence of the information noted or endorsed on such schedule, but the
absence of any such notation or
-8-
endorsement will not limit or otherwise affect the obligations or liabilities
of Borrowers thereunder and hereunder.
1.2.5. INTEREST. Interest under the Term Loan Facility (and with respect
to any other amounts advanced to or on behalf of Borrowers under the Loan
Documents) will be determined and imposed in accordance with the following
provisions (and, as applicable, Section 1.5.5 hereof and Section 1.5.6 hereof):
1.2.5.1. INTENTIONALLY BLANK.
1.2.5.2. ESTABLISHMENT OF PORTIONS. For purposes of determining
interest, Borrowers may designate and subdivide the aggregate outstanding
balance under the Term Loan Facility (including any other amounts advanced to
or on behalf of any Borrower under the Loan Documents) into a maximum of eight
(8) Portions (inclusive of the number of Portions permitted under the Line of
Credit Facility). No Portion may be less than $500,000 (unless it is
designated as $0.00), AND all Portions collectively must total the aggregate
outstanding balance under the Term Loan Facility. If there is less than
$1,000,000 outstanding under the Term Loan Facility, then only one Portion
will be permitted.
1.2.5.3. INTEREST RATE DETERMINATION. The aggregate outstanding
principal balance under each Portion will bear interest (computed daily until
paid, whether prior to or after the Term Loan Maturity Date) at the applicable
Rate Index (as determined in accordance with Section 1.2.5.4 hereof) PLUS the
applicable Rate Margin (as determined in accordance with Section 1.2.5.5
hereof). If the Prime Rate is the applicable Rate Index for a Portion, the
interest rate on such Portion will change when and as the Prime Rate or Rate
Margin changes; AND if an Adjusted LIBO Rate is the applicable Rate Index for
a Portion, the interest rate on such Portion will be established on the first
day of each Interest Period for such Portion and will not change during such
Interest Period, except to the extent the Rate Margin changes during the
Interest Period or as otherwise permitted under Section 1.2.5.7 hereof.
NOTWITHSTANDING THE FOREGOING, the applicable interest rate for the entire
outstanding balance under the Term Loan Facility from the Settlement Date on
which the Advance under the Term Loan Facility is made until the first date on
which the Rate Index may be changed under Section 1.2.5.4 hereof will be the
Prime Rate as of such Settlement Date PLUS a Rate Margin determined as of
such Settlement Date in accordance with Section 1.2.5.5 hereof using an amount
for Funded Debt as of such Settlement Date (and inclusive of such Advance).
1.2.5.4. SELECTION OF RATE INDEX. The applicable Rate Index for
each Portion will be either the Prime Rate or an Adjusted LIBO Rate. The
applicable Rate Index for each Portion may be changed (at the election of
Borrowers) as of the first calendar day after the end of the applicable
Interest Period for such Portion. At least two (2) Business Days but not more
than ten (10) Business Days before any day on which the Rate Index may be
changed, Borrowers (through an Authorized Officer) must notify Administrative
Agent in writing of (a) the dollar amount of each Portion (if more than one
exists) AND (b) the selected Rate Index for each Portion during the subsequent
rate period (including, if applicable, the selected length of the Interest
Period for balances accruing interest at the Adjusted LIBO Rate). If
Administrative Agent does not timely receive such written notification as to
any Portion, the Prime Rate will be
-9-
the applicable Rate Index for the entire outstanding balance of such
unspecified Portion during the subsequent rate period. NOTWITHSTANDING THE
FOREGOING, with respect to the proceeds of each Advance under the Term Loan
Facility, (unless Borrowers otherwise request the Adjusted LIBO Rate at the
time of such Advance and an otherwise unallocated Portion then exists) the
Prime Rate will be the applicable Rate Index from the corresponding Settlement
Date for such Advance until the next date on which the Rate Index may be
changed hereunder.
1.2.5.5. APPLICABLE RATE MARGINS. The Rate Margin applicable to the
Term Loan Facility will be established as of the initial Settlement Date and
as of the first calendar day of each fiscal quarter and will be based upon the
Leverage Ratio of (a) Funded Debt as of the date of establishment of such Rate
Margin TO (b) OFC (I.E., Operating Cash Flow) for the four consecutive fiscal
quarter period ending on the last day of the most recent fiscal quarter
reflected on the most recent quarterly financial statements delivered to
Administrative Agent in accordance with Section 4.2 hereof, AND will be
determined according to the following schedule:
Adjusted
Prime Rate LIBO Rate
Leverage Ratio Margin Margin
-------------- ---------- ---------
LESS THAN 2.0 0.00% 1.50%
GREATER THAN
OR EQUAL TO 2.0
but LESS THAN 3.0 1.00% 2.00%
GREATER THAN
OR EQUAL TO 3.0 2.00% 3.00%
In determining the amount of Funded Debt as of the date of establishing such
Rate Margin, unless Borrowers otherwise provide Administrative Agent with
evidence of such amount in a form acceptable to Administrative Agent, THEN
Administrative Agent may use and rely on the amount of Funded Debt as
reflected on the most recent quarterly financial statements delivered to
Administrative Agent in accordance with Section 4.2 hereof. NOTWITHSTANDING
THE FOREGOING, if Administrative Agent does not timely receive acceptable
quarterly financial statements in accordance with Section 4.2 hereof, THEN
Administrative Agent (in its sole and absolute discretion) may deem the
applicable Rate Margin to be the highest Rate Margin for the applicable Rate
Index reflected in the chart above, retroactive to the first calendar day of
the then-current fiscal quarter.
1.2.5.6. CALCULATION OF INTEREST. Interest under the Term Loan
Facility will be calculated, accrued, imposed and payable on the basis of a
360-day year for the actual number of days elapsed. Interest will begin to
accrue on the outstanding principal amount of the Term Loan Facility (and on
any other amounts advanced to or on behalf of any Borrower under the Loan
Documents) on and as of the date such funds are advanced.
1.2.5.7. SPECIAL LIBO RATE PROVISIONS. The following provisions
will apply with respect to the Adjusted LIBO Rate, notwithstanding any other
provision hereof.
a. CHANGE IN ADJUSTED LIBO RATE. The Adjusted LIBO Rate may
be automatically adjusted by any Lender from time to time on a prospective
basis to account
-10-
for any additional or increased cost of maintaining any necessary reserves for
Eurodollar deposits (including, without limitation, any increase in the Reserve
Percentage) or increased costs due to changes in the applicable law occurring
subsequent to the commencement of the then-applicable Adjusted LIBO Rate
Interest Period. Such Lender will give Administrative Agent notice of any such
determination and adjustment within a reasonable period of time thereafter.
Upon receipt of any such notice, Administrative Agent will provide a copy
thereof to Borrowers, AND (upon Borrowers' written request through
Administrative Agent) such Lender will furnish a statement to Administrative
Agent and Borrowers setting forth the basis for adjusting such Adjusted LIBO
Rate and the method for determining the amount of such adjustment. A
determination by any Lender hereunder will be conclusive absent manifest error.
If any Lender provides any such notice of adjustment under this Subsection,
Borrowers may elect to change the then-applicable Rate Index (using the same
Rate Margin category) to the Prime Rate for any Portion then subject to an
Adjusted LIBO Rate. Such election to change the Rate Index may be made by
providing Administrative Agent written notice thereof at any time within the
first 10 Business Days after receipt of the notice of adjustment from such
Lender through Administrative Agent (notwithstanding the restriction hereunder
limiting such Rate Index changes to certain dates, BUT subject to the
requirement to pay actual costs incurred by such Lender as described in Section
1.2.6.5.e hereof). Upon Administrative Agent's receipt of such a written
election, the identified Portion will thereupon begin to accrue interest at the
Prime Rate plus the Rate Margin (as applicable for the same Leverage Ratio level
as was previously applicable for the Adjusted LIBO Rate) for the remainder of
the then-current Interest Period for such Portion. NOTWITHSTANDING THE
FOREGOING, no Lender shall be entitled to adjust the Adjusted LIBO Rate under
this Clause "a" to account for such additional or increased costs to the extent
that such Lender has already been compensated for such additional or increased
cost pursuant to Section 4.13 hereof.
b. UNAVAILABILITY OF EURODOLLAR FUNDS. An adjusted LIBO
Rate will not be available for Portions under the Term Loan Facility if any
Lender at any time prior to the commencement of the relevant Interest Period
determines or reasonably believes that (1) Eurodollar deposits equal to the
principal amount of such Portion for the applicable Interest Period are
unavailable, OR (2) an Adjusted LIBO Rate will not adequately and fairly reflect
the cost of maintaining balances under the Term Loan Facility, OR (3) by reason
of circumstances affecting Eurodollar markets, adequate and reasonable means do
not then exist for ascertaining an Adjusted LIBO Rate. Such Lender will give
Administrative Agent notice of any such event within a reasonable time
thereafter. Upon receipt of any such notice, Administrative Agent will provide
a copy thereof to Borrowers, AND (upon Borrowers' written request through
Administrative Agent) such Lender will furnish a statement to Administrative
Agent and Borrowers setting forth the basis for such determination or reasonable
belief. A determination or belief by any Lender hereunder will be conclusive
absent manifest error.
c. ILLEGALITY. An Adjusted LIBO Rate will also not be
available for the Term Loan Facility if any Lender at any time determines or
reasonably believes that it is unlawful or impossible to fund or maintain
sufficient Eurodollar liabilities for the Term Loan Facility under an Adjusted
LIBO Rate. Such Lender will give Administrative Agent notice of any such event
within a reasonable time thereafter. Upon receipt of any such notice,
Administrative Agent will provide a copy thereof to Borrowers, AND (upon
Borrowers' written
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request through Administrative Agent) such Lender will furnish a statement to
Administrative Agent and Borrowers setting forth the basis for such
determination or reasonable belief. A determination or belief by any Lender
hereunder will be conclusive absent manifest error.
d. ALTERNATIVE RATE. During the occurrence of an event
contemplated by either Clause "b" of this Subsection or Clause "c" of this
Subsection, each Lender's obligation hereunder to fund or maintain balances
under an Adjusted LIBO Rate will be suspended, and during such period, the
outstanding balance under the Term Loan Facility will bear interest at the Prime
Rate plus the appropriate Rate Margin (determined in accordance with Section
1.2.5.5 hereof).
1.2.6. REPAYMENT AND PREPAYMENT. Each Borrower (jointly and
severally) hereby promises to pay to Administrative Agent (for the benefit of
Lenders) the aggregate indebtedness under the Term Loan Facility (and other Loan
Documents) in accordance with the following provisions:
1.2.6.1. PERIODIC INTEREST PAYMENTS. Interest accrued under
the Term Loan Facility will be due and payable monthly in arrears on the first
calendar day following the end of each such month and on the first calendar day
following the end of each Interest Period for any Portion accruing interest at
an Adjusted LIBO Rate, commencing on the first such date after the Closing Date.
1.2.6.2. PRINCIPAL PAYMENTS -- AMORTIZATION. On the first
calendar day of the first calendar month of each quarter, a payment of principal
under the Term Loan Facility will be due and payable in its entirety in
immediately available funds in accordance with the following schedule:
Percentage of Outstanding
Year Balance Due
---- -------------------------
Closing Date to December 31, 1997 0.0% per quarter (0% per year)
January 1, 1998 to December 31, 1998 5.0% per quarter (20% per year)
January 1, 1999 to December 31, 1999 5.0% per quarter (20% per year)
January 1, 2000 to December 31, 2000 7.5% per quarter (30% per year)
January 1, 2001 until Term Loan
Maturity Date 7.5% per quarter (30% per year)
1.2.6.3. PRINCIPAL PAYMENTS -- PERIODIC SWEEP OF EXCESS CASH
FLOW.
[Intentionally Blank]
1.2.6.4. AT MATURITY OR TERMINATION. The entire aggregate
outstanding indebtedness under the Term Loan Facility (including principal,
interest, fees and expenses) is due and payable in its entirety in immediately
available funds on the Term Loan Maturity Date. NOTWITHSTANDING THE FOREGOING,
the entire aggregate outstanding indebtedness under the Term Loan Facility
(INCLUDING all principal, interest, fees and expenses) will be due and payable
in its entirety in immediately available funds upon any earlier termination of
either the Term Loan
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Commitment, the Term Loan Facility or this Agreement, in each instance, in
accordance with the terms hereof.
1.2.6.5. PREPAYMENTS.
a. VOLUNTARY PREPAYMENTS. At any time, upon prior
written notice to Administrative Agent of at least two (2) Business Days, the
outstanding principal balance under the Term Loan Facility may be prepaid in
whole or in part without premium or penalty, except as provided in Clause "e" of
this Subsection. Any voluntary partial prepayment must be in an amount of not
less than $100,000 or in an integral multiple thereof.
b. MANDATORY PREPAYMENTS -- EXCESSIVE BALANCE. If
the aggregate outstanding indebtedness under the Term Loan Facility at any time
exceeds the Term Loan Commitment, THEN such excess amount outstanding must be
prepaid immediately to Administrative Agent for the benefit of Lenders (without
necessity of notice or demand by Administrative Agent).
c. MANDATORY PREPAYMENTS -- EQUITY OFFERINGS AND
ASSET SALES. If any Borrower engages in an offering of its equity securities or
if any Borrowers sells, transfers or otherwise disposes of any assets (other
than inventory or other assets sold in the ordinary course of business with the
proceeds thereof promptly reinvested in similar assets at similar locations)
exceeding an aggregate fair market value of $1,000,000 in any transaction or
series of related transactions, THEN (unless the Administrative Agent otherwise
consents with the concurrence of the Lenders) a prepayment must be immediately
made on the outstanding indebtedness under the Term Loan Facility. The amount
of any such mandatory prepayment will be the higher of the cash proceeds or the
cash equivalent of the fair market value of any such equity offering or asset
dispositions NET OF (1) reasonable commissions and expenses actually incurred to
unrelated third parties in connection with such transactions AND (2) taxes
actually due as a direct result of such transactions (as such taxes are
estimated and certified to Administrative Agent by a certified public accountant
or financial officer of such Borrower, in either instance, acceptable to
Administrative Agent).
d. IN GENERAL. Any prepayments under the Term Loan
Facility must include all accrued but unpaid interest under the Term Loan
Facility allocable to the amount prepaid through the date of such prepayment.
e. ADJUSTED LIBO RATE PREPAYMENTS. In connection
with any prepayment of all or any portion of the outstanding balance under the
Term Loan Facility upon which an Adjusted LIBO Rate is then applicable on any
day other than the last day of an Interest Period -- whether such prepayment is
voluntary, mandatory, by demand, acceleration or otherwise -- Borrowers must pay
Administrative Agent for the benefit of Lenders all costs, losses and expenses
(including funding costs) that may arise or be incurred as a result of or in
connection with such prepayment, as such costs, losses and expenses may be
calculated by each such Lender. Upon written request to Lenders (through
Administrative Agent), each such Lender will furnish a statement setting forth
the basis for such calculation. A determination or calculation by any Lender
hereunder will be conclusive absent manifest error.
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1.2.6.6. DEFAULT INTEREST PAYMENT. Any payment hereunder
or under the Term Loan Note during the existence of a Default or an Event of
Default hereunder must include the payment of any default interest due pursuant
to Section 1.5.5 hereof.
1.2.6.7. APPLICATION OF PAYMENTS. Payments hereunder
(including prepayments) will be applied in accordance with Section 1.5.3
hereof. NOTWITHSTANDING THE FOREGOING, (a) payments and prepayments allocable
to principal under the Term Loan Facility (other than payments pursuant to
Section 1.2.6.2 hereunder) will be applied to installments of principal
payable under the Term Loan Facility in the inverse order of maturity, AND
(b) payments and prepayments allocable to principal under the Term Loan
Facility will be applied to repay Portions accruing interest at the Prime
Rate first and then to repay Portions accruing interest at the Adjusted LIBO
Rate (applying first to Portions having the Interest Period with the longest
remaining time to maturity).
1.2.6.8 AVAILABILITY FOR REBORROWING. Principal amounts
repaid or prepaid under the Term Loan Facility prior to the Term Loan Maturity
Date WILL NOT be available for reborrowing hereunder.
1.3. DETERMINATION OF COMMITMENT AMOUNTS.
1.3.1. INITIAL COMMITMENTS. Upon the execution of this Agreement
and satisfaction of each condition precedent set forth in Section 2.2 hereof (on
or before October 31, 1996), the Line of Credit Commitment established hereunder
will be $20 million ("Line of Credit Commitment"). Upon the execution of this
Agreement and satisfaction of each condition precedent set forth in Section 2.2
hereof (on or before October 31, 1996), the Term Loan Commitment established
hereunder will be determined in accordance with the following schedule ("Term
Loan Commitment"):
Gross Proceeds Term Loan
of CCISG IPO Commitment
------------ ----------
LESS THAN $50 million $0.00
GREATER THAN OR EQUAL TO $50 million
but LESS THAN $70 million Up to $15 million
(at Borrowers' election)
GREATER THAN OR EQUAL TO $70 million $0.00
-
1.3.2. MANDATORY COMMITMENT REDUCTIONS FOR THE LINE OF CREDIT
FACILITY. NOTWITHSTANDING THE FOREGOING, the maximum amount of credit available
at any time under the Line of Credit Facility may not exceed the amount
resulting from the following formula:
a. The Line of Credit Commitment,
b. MINUS the then-aggregate amount of all prepayments relating
to equity offerings and asset sales required to have been
paid to Lenders since the Closing Date under Section
1.1.6.5.c hereof, AND
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c. MINUS the aggregate amount of all voluntary commitment
reductions requested under Section 1.3.3 hereof, AND
d. MINUS the aggregate outstanding amount (at face value) of
all letters of credit issued by any Lender on behalf or for
the account of any Borrower under Section 1.8 hereof or
otherwise.
(COLLECTIVELY, the amount resulting from the equation under categories "a"
through "d" above is sometimes referred to herein as the "Available Credit
Portion".) On the effective date of any such reduction in the amount of
available credit, a prepayment must be made to the extent required under Section
1.1.6.5.b hereof.
1.3.3. VOLUNTARY REDUCTION OF COMMITMENT. Upon giving
Administrative Agent prior written notice of at least ten (10) Business Days,
Borrowers at any time and from time to time may reduce the Line of Credit
Commitment in multiples of $100,000. On the effective date of any such
reduction, a prepayment must be made to the extent required under Section
1.1.6.5.b hereof. Any such reduction in the Line of Credit Commitment will be
permanent, AND such Commitment cannot thereafter be increased without the
written consent of Lenders.
1.4 ADVANCES
1.4.1. REQUESTING ADVANCES. To request an Advance (except with
respect to the initial Advances on the Closing Date or as otherwise provided in
Section 1.4.3 hereof), Borrowers (through an Authorized Officer) must give
Administrative Agent written notice of such request (such notice, an "Advance
Request"). Each Advance Request, together with certain certifications, must be
substantially in the form of Exhibit 1.4.1 hereto or such other forms as
Administrative Agent from time to time may reasonably request. Each Advance
Request (or verbal notice by telephone with immediate written confirmation in
the form of an Advance Request to follow) must be received by Administrative
Agent before 11:00 a.m. Eastern Time (a) on the requested Settlement Date with
respect to any Advance of funds that will accrue interest at the Prime Rate AND
(b) at least two (2) Business Days prior to the requested Settlement Date with
respect to any Advance of funds that will accrue interest at an Adjusted LIBO
Rate. Unless Administrative Agent otherwise consents, an Advance Request will
not be effective if it is delivered to Administrative Agent more than ten (10)
Business Days prior to the requested Settlement Date. Each Advance under the
Line of Credit Facility pursuant to an Advance Request must be in multiples of
$500,000 and not greater than the un-borrowed balance of the Available Credit
Portion under Section 1.3. hereof.
1.4.2. FUNDING ADVANCES. Subject to the satisfaction of and compliance
with the terms and conditions hereof (including, as applicable, the conditions
precedent specified in Section 2.2. hereof), Administrative Agent will make each
Lender's Pro Rata Portion of each requested Advance (to the extent such funds
are received by Administrative Agent) available (in immediately available funds)
by crediting such amount to the Account with Administrative Agent (or by such
other means as Administrative Agent may consider reasonable). At the written
request and expense of Borrowers, Administrative Agent will wire transfer all or
any portion of an Advance in accordance with such written instructions therefor.
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1.4.3. AUTOMATIC LINE OF CREDIT ADVANCES. [Intentionally Blank]
1.4.4. OBLIGATION TO ADVANCE. No Lender (nor Administrative
Agent) will be obligated to make any Advance under the following
circumstances: (a) if the principal amount of such Advance plus the
aggregate amount outstanding under the Line of Credit Facility or Term Loan
Facility would exceed the Available Credit Portion or Term Loan Commitment
(as applicable), OR (b) during the existence of a Default or an Event of
Default hereunder, OR (c) if such Advance would cause a Default or Event of
Default hereunder, OR (d) after the Line of Credit Maturity Dates, OR (e)
prior to satisfaction of each condition precedent under Section 2.2 hereof.
1.4.5. INDEMNIFICATION FOR REVOCATION OR FAILURE TO SATISFY
CONDITIONS. Borrowers (jointly and severally) will indemnify each Lender
against any loss, cost or expense incurred by such Lender as a result of any
revocation of any requested Advance or any failure to fulfill the applicable
conditions precedent to such advance on or before the requested Settlement
Date specified in an Advance Request. Such indemnification will include,
without limitation, any loss, cost or expense incurred by reason of the
liquidation or reemployment of funds required by such Lender to fund the
Advance when such Advance, as a result of such failure, is not made on the
requested Settlement Date. Such Lender's calculation of such losses, costs
and expenses will be conclusive absent manifest error. NOTWITHSTANDING THE
FOREGOING, no Lender shall be entitled to indemnification under this Section
with respect to a loss, cost or expense to the extent that such Lender has
already been compensated for such loss, cost or expense pursuant to Section
4.13 hereof.
1.5. PAYMENTS IN GENERAL.
1.5.1. MANNER AND PLACE. All payments of principal, interest,
fees and other amounts due under the Loan Documents must be received by
Administrative Agent in immediately available funds in U.S. dollars on or
before Two O'Clock (2:00) p.m. Eastern Time ("ET") on the due date therefor
at the principal office of Administrative Agent set forth in Section 10.7
hereof or at such other place as Administrative Agent may designate from time
to time.
1.5.2. SPECIAL PAYMENT TIMING ISSUES. Whenever any payment to be
made under any Loan Document is due on a day that is not a Business Day, such
payment may be made on the next succeeding Business Day, and such extension
of time will be included in the computation of interest under such Loan
Document. Any funds received by Administrative Agent after 2:00 p.m. ET on
any day will be deemed to be received on the next succeeding Business Day.
1.5.3. APPLICATION OF PAYMENTS. All payments and other funds
received by Administrative Agent hereunder (for the benefit of Lenders) will
be applied by Administrative Agent and each Lender in the following order:
(a) first to the payment of any fees and charges due under the Loan
Documents, AND (b) then to any obligations for the payment of expenses due
under the Loan Documents, AND (c) then to the payment of interest due and
owing hereunder, AND (d) then to the principal indebtedness due and owing
under the Term Loan Facility and then
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to principal outstanding under the Line of Credit Facility, AND (e) then to
any other interest accrued but not yet owing hereunder, AND (f) then to
principal outstanding but not yet due and owing under the Term Loan Facility,
AND (g) then to any other indebtedness of any Borrower or other Obligor then
due and owing to Administrative Agent of any Lender.
1.5.4. DEBITING ACCOUNTS. [Intentionally Blank]
1.5.5. DEFAULT INTEREST. During the existence of a Default or an
Event of Default hereunder, each Borrower (jointly and severally) hereby
agrees (to the maximum extent not prohibited by applicable law) to pay to
each Lender (upon Administrative Agent's request) interest on any
indebtedness outstanding hereunder at the rate of TWO PERCENT (2%) per annum
in excess of the rate then otherwise applicable to such indebtedness.
NOTWITHSTANDING THE FOREGOING, if the relevant Default is under Section
7.1.10 hereof, THEN such rate increase (to the maximum extent not prohibited
by applicable law) will occur automatically without any request by
Administrative Agent.
1.5.6. USURY SAVINGS PROVISION. Notwithstanding any provision of
any Loan Document to the contrary, no Borrower is or will be required to pay
interest at a rate or any fee in an amount prohibited by applicable law. If
interest or any fee payable to Administrative Agent or any Lender on any date
would be in a prohibited amount, such interest or fee will be automatically
reduced to the maximum amount that is not prohibited, and any interest or fee
for subsequent periods, to the extent not prohibited, will be increased
accordingly until Administrative Agent and each Lender receives payment of
the full amount of each such reduction. To the extent that any prohibited
amount is actually received by Administrative Agent or any Lender, such
amount will be automatically deemed to constitute a repayment of principal
indebtedness hereunder.
1.6. RELEASE OF SECURITY. Under (a) repayment to each Lender in full
(unconditionally and indefeasibly) of the entire indebtedness hereunder and
of all other amounts then due and owing to any Lender or Administrative Agent
under the Loan Documents, AND (b) the termination of the Loan Documents (an
all Facilities thereunder), AND (c) return and cancellation of any effective
letters of credit issued by any Lender or Administrative Agent for the
account of any Borrower (or delivery to Administrative Agent (for the ratable
benefit of Lenders) of cash or readily marketable collateral in an amount and
subject to a pledge agreement that are acceptable to Administrative Agent in
its sole discretion), THEN Administrative Agent and each Lender (at the
written request and expense of Borrowers) will release the Obligors and the
property serving as Collateral hereunder from all the Loan Documents.
1.7. FEES AND OTHER COMPENSATION.
1.7.1. COMMITMENT FEE. On the initial Settlement Date, Borrowers
must pay Administrative Agent (for its own account) in immediately available
funds a Credit Commitment Fee in the amount provided for pursuant to a
separate Fee Agreement with Signet Bank dated as of the Closing Date.
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1.7.2. PERIODIC FACILITY FEE. Borrowers will also pay
Administrative Agent (for the ratable benefit of Lenders) in immediately
available funds a Periodic Facility Fee at the rate of ONE QUARTER OF ONE
PERCENT (0.25%) per annum on the average daily unborrowed portion of the
Available Credit Portion (adjusting by adding, for purpose of this
calculation, any amounts subtracted under Section 1.3.2.d hereof). Such fee
will be calculated by Administrative Agent on the basis of a 360-day year and
will be due and payable in immediately available funds quarterly in arrears
on the first calendar day of each January, April, July and October.
1.8. ISSUANCE OF LETTERS OF CREDIT. With the prior consent the Lenders,
Administrative Agent or any Lender (or any Affiliate of Administrative Agent
or any Lender) may issue one or more letters of credit on behalf of or for
the account of any Borrower. So long as any such letter of credit is
effective and outstanding, the face amount thereof will be deducted from the
Line of Credit Commitment in determining the Available Credit Portion (under
Section 1.3 hereof) at any time, BUT such amounts will be considered
"unborrowed" for purposes of calculating the Facility Fee under Section 1.7.2
hereof.
ARTICLE 2: CONDITIONS PRECEDENT
2.1. CLOSING CONDITIONS. The obligation of Administrative Agent and
each Lender to execute and perform under this Agreement are subject to the
following conditions precedent (unless and except to the extent expressly
waived by such Lender in its sole and absolute discretion):
2.1.1. COMPLIANCE.
2.1.1.1. FEES AND EXPENSES. Borrowers must have paid (or
made acceptable arrangements with such Lender to pay) all reasonable fees,
costs, expenses and taxes due and payable hereunder, including without
limitation, any fees due and payable pursuant to Section 1.7 hereof and the
reasonable fees, costs and expenses of the law firm of Xxxxx Xxxx LLP with
respect to the preparation, negotiation and execution of the Loan Documents.
2.1.1.2. REPRESENTATIONS. Each, and all, representations
and warranties contained in this Agreement (including those in Article 3
hereof) and in each certificate or other writing delivered to such Lender
pursuant hereto or thereto on or prior to the Closing Date must be true,
correct and complete in all material respects on and as of the Closing Date,
EXCEPT for such deviations disclosed in writing and acceptable to such Lender.
2.1.1.3. NO DEFAULT. There must not be any Default or
Event of Default hereunder on the Closing Date, AND there must not be any
such Default or Event of Default occurring as a result of executing this
Agreement, EXCEPT for such defaults disclosed in writing and acceptable to
the Required Lenders.
2.1.1.4. NO MATERIAL CHANGE. There must not have been
(in such Lender's reasonable opinion) any Material Adverse Change between
December 31, 1995 (I.E.,
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the "as of" date for the most recent audited financial statements delivered
to such Lender) and the Closing Date.
2.1.2. DOCUMENTS. Such Lender must have received the following
documents, agreements and certificates (together with all exhibits and
schedules thereto), each duly executed, in form, substance and amount
satisfactory to such Lender and, when applicable, recorded or filed in the
appropriate public office:
2.1.2.1. CREDIT AGREEMENT. This Agreement.
2.1.2.2. FEE AGREEMENT. The Fee Agreement referenced in
Section 1.7.1 hereof.
2.1.2.3. SOLVENCY CERTIFICATES. A certificate from a
financial officer of EACH BORROWER (acceptable to such Lender) to such Lender
dated as of the Closing Date and certifying as to the solvency of each
Borrower immediately prior to and after giving effect to the execution and
delivery of this Agreement.
2.1.2.4. COMPLIANCE CERTIFICATES. A certificate from an
Authorized Officer of EACH BORROWER to such Lender dated as of the Closing
Date and certifying as to compliance with the matters described under Section
2.1.1 hereof.
2.1.2.5. OPINIONS OF COUNSEL. One or more written
opinions from legal counsel to Borrowers addressed to such Lender and its
counsel and dated as of the Closing Date opining as to such matters under
Delaware, Illinois and Virginia law as such Lender may request.
2.1.2.6. AUTHORIZATION DOCUMENTS -- EACH BORROWER. A
certificate of an Authorized Officer of EACH BORROWER delivering true,
accurate and complete versions of (a) its Articles of Incorporation and all
amendments thereto, AND (b) its Bylaws and all amendments thereto, AND (c)
the resolutions authorizing its execution, delivery and full performance of
the Loan Documents and all other documents, certificates and actions required
hereunder or in connection herewith, AND (d) an incumbency certificate
setting forth its officers (together with the corresponding signatures), AND
(e) a long-form good standing and qualification certificate with respect to
each jurisdiction listed on Schedule 3.1 hereto.
2.1.2.7. OTHER DOCUMENTS. Such Lender must have received
any additional agreements, documents and certificates as such Lender or its
counsel may reasonably request.
2.2. CONDITIONS TO INITIAL ADVANCE. The obligation of Administrative
Agent and each Lender to execute and perform the Loan Documents (other than
this Agreement), AND to establish the Facilities hereunder, AND to fund the
initial Advances hereunder are subject to the following conditions precedent
that must be satisfied on or prior to October 31, 1996 (unless and except to
the extent expressly waived by Administrative Agent in its sole and absolute
discretion, but with the concurrence of the Required Lenders):
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2.2.1. COMPLIANCE.
2.2.1.1. FEES AND EXPENSES. Each Borrower must have paid
(or made acceptable arrangements with Administrative Agent to pay) all
reasonable fees, costs, expenses and taxes due and payable hereunder,
including without limitation, any fees due and payable pursuant to Section
1.7 hereof and the reasonable fees, costs and expenses of the law firm of
Xxxxx Xxxx LLP with respect to the preparation, negotiation and execution of
the Loan Documents.
2.2.1.2. REPRESENTATIONS. Each, and all, representations
and warranties contained in this Agreement (including those in Article 3
hereof) and in each other Loan Document, certificate or other writing
delivered to Administrative Agent pursuant hereto or thereto on or prior to
such Settlement Date must be true, correct and complete in all material
respects on and as of such Settlement Date, EXCEPT such deviations disclosed
in writing and in good faith reasonably acceptable to Administrative Agent
(which disclosure will not constitute Lenders' waiver or acceptance thereof).
2.2.1.3. NO DEFAULT. There must not be any Default or
Event of Default hereunder or any default under any other Loan Document on
such Settlement Date, AND there must not be any such Default or Event of
Default occurring as a result of executing or advancing funds under the Loan
Documents, EXCEPT for such defaults disclosed in writing and in good faith
reasonably acceptable to the Required Lenders (which disclosure will not
constitute Lenders' waiver or acceptance thereof).
2.2.1.4. NO MATERIAL CHANGE. There must not have been
(in Administrative Agent's reasonable opinion, but with concurrence of the
Required Lenders) any Material Adverse Change between the Closing Date and
such Settlement Date.
2.2.2. DOCUMENTS. Administrative Agent must have received the
following documents, agreements and certificates (together with all exhibits
and schedules thereto), each duly executed, in form, substance and amount
mutually satisfactory to Administrative Agent and Borrowers and, when
applicable, recorded or filed in the appropriate public office:
2.2.2.1. AMENDMENT TO CREDIT AGREEMENT. If
Administrative Agent requests, THEN an amendment to this Agreement (or an
amendment and restatement hereof) in order to accommodate the inclusion of an
additional Lender hereunder (which amendments will focus on incorporating
terms and conditions reasonably believed by Administrative Agent to be
customary in a multi-lender facility with an agent, and without limitation,
will make the obligations of the lenders to advance hereunder several (rather
than joint) among such lenders). This Agreement will also be modified to
accommodate necessary changes as a result of negotiations of the other Loan
Documents described under this Section 2.2 hereof.
2.2.2.2. UPDATE TO CREDIT AGREEMENT SCHEDULES. Unless
otherwise updated in connection with an amendment hereto (or an amendment and
restatement hereof), THEN a certificate from an appropriate Authorized
Officer of EACH BORROWER to Administrative
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Agent (for the benefit of Lenders) dated as such Settlement Date that updates
the Schedules hereto as of such Settlement Date.
2.2.2.3. ADVANCE REQUEST. Administrative Agent must have
received an Advance Request under and in accordance with Section 1.4.1 hereof
that includes (a) amounts and wiring instructions for each payment requested on
such Settlement Date, AND (b) a statement (if applicable) of the requested
amount of the Term Loan Commitment (in accordance with Section 1.3.1 hereof).
2.2.2.4. PROMISSORY NOTES. The Line of Credit Note(s) as
described in Section 1.1.4 hereof, AND the Term Loan Note(s) as described in
Section 1.2.4 hereof.
2.2.2.5. SECURITY AGREEMENT AND RELATED DOCUMENTS. A
security agreement by each Borrower in favor of Administrative Agent (for the
benefit of Lenders) granting a security interest in all of such grantor's
tangible and intangible personal property assets and fixtures (whether now owned
or hereafter acquired) and the proceeds and products thereof (other than the
Excluded Assets), as collateral security for the indebtedness and obligations
hereunder, TOGETHER WITH all necessary financing statements and termination
statements (each as filed), waivers and consents, and evidence of any other
recordations required by applicable law or by Administrative Agent to perfect
such first lien security interests.
2.2.2.6. INTELLECTUAL PROPERTY SECURITY AGREEMENTS. One or
more separate intellectual property security agreements by each Borrower in
favor of Administrative Agent (for the benefit of Lenders) covering all of such
grantor's copyrights, patents, trade names, trademarks, service names, service
marks and other intellectual property (including any and all applications and
licenses therefor), all as now owned or hereafter acquired and the proceeds and
goodwill thereof, TOGETHER WITH all appropriate financing statements and
termination statements (each as filed), waivers and consents, and any other
documents or recordations required by applicable law or by Administrative Agent
to perfect such interests.
2.2.2.7. ASSIGNMENT OF MATERIAL CONTRACTS. One or more
separate assignments in favor of Administrative Agent (for the benefit of
Lenders) of the Material Contracts of EACH BORROWER (as such contracts are
defined in Section 3.8 hereof), TOGETHER WITH all necessary financing statements
and termination statements, estoppel certificates, waivers and consents, and any
other documents required by applicable law or by Administrative Agent to perfect
such interests. With respect to obtaining waivers and consents of third parties
requested by Administrative Agent in connection with any such assignment, such
Borrower's obligation under this Subsection will be limited to using its best
efforts.
2.2.2.8. PLEDGE AND SECURITY AGREEMENT (BY TOP LEVEL
BORROWER). A pledge and security agreement executed by CCC in favor of
Administrative Agent (for the benefit of Lenders) pledging a first priority
interest in (among other things) all of the outstanding capital stock (common
and preferred stock; including options and warrants therefor) of each other
Borrower owned by CCC, as collateral security for the indebtedness and
obligations hereunder and under such pledgor's guaranty in favor of
Administrative Agent (for the benefit of
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Lenders), TOGETHER WITH the certificates therefor, powers executed in blank, and
all necessary financing statements.
2.2.2.9. PLEDGE AND SECURITY AGREEMENT (BY GUARANTOR). A
pledge and security agreement executed by CCC INFORMATION SERVICES GROUP INC. in
favor of Administrative Agent (for the benefit of Lenders) pledging a first
priority interest in (among other things) all of the outstanding capital stock
(common and preferred stock; including options and warrants therefor) of CCC, as
collateral security for the indebtedness and obligations under the Loan
Documents, TOGETHER WITH the certificates therefor, powers executed in blank,
and all necessary financing statements.
2.2.2.10. GUARANTY AGREEMENT. A guaranty agreement by CCC
INFORMATION SERVICES GROUP INC. in favor of Administrative Agent (for the
benefit of Lenders) absolutely and unconditionally guaranteeing (a) the payment
of all indebtedness hereunder and under the other Loan Documents AND (b) the
performance of all other obligations hereunder and under the other Loan
Documents.
2.2.2.11. INSURANCE. Current proof of insurance with an
indication of loss payee and additional insured endorsements in favor of
Administrative Agent (for the benefit of Lenders) with respect to all of the
insurance coverages required under Section 4.8 hereof. Such proof of insurance
(unless Administrative Agent otherwise agrees) must be indicated pursuant to one
or more certificates on (a) an XXXXX 27 from (3/93) for property-related
insurance coverages AND (b) a modified version of an XXXXX 25-S form (3/93)
permitting Administrative Agent's reliance and requiring cancellation
notification for general liability and all other types of insurance coverages.
2.2.2.12. SOLVENCY CERTIFICATES. A certificate from a
financial officer of EACH BORROWER (acceptable to Administrative Agent) to
Administrative Agent (for the benefit of Lenders) dated as of such Settlement
Date and certifying as to the solvency of each Borrower immediately prior to and
after giving effect both (a) to the execution and delivery of the Loan Documents
AND (b) to the disbursement of the Advances scheduled to be funded on such
Settlement Date.
2.2.2.13. COMPLIANCE CERTIFICATES. A certificate from an
Authorized Officer of EACH BORROWER to Administrative Agent (for the benefit of
Lenders) dated as of such Settlement Date and certifying as to compliance with
the matters described under Section 2.2.1 hereof (with specific reconciled
calculations demonstrating compliance with the financial covenants under Section
4.1 hereof as of such Settlement Date).
2.2.2.14. OPINIONS OF COUNSEL. One or more written opinions
(or supplements thereto) from legal counsel to Borrower addressed to
Administrative Agent and each Lender and dated as of such Settlement Date
opining as to such matters (under the laws of the jurisdictions in which any
Borrower is organized and the laws of the jurisdictions in which any Borrower
has Collateral) as Administrative Agent may reasonably request.
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2.2.2.15. PAYOFF INSTRUCTIONS FOR PRIOR INDEBTEDNESS. A
letter from Borrowers to Administrative Agent, consistent with the requirements
of Section 1.1.3 hereof, Section 1.4 hereof and Section 2.2.1 hereof,
instructing Administrative Agent how to disburse the proceeds of the initial
Advance, TOGETHER WITH appropriate payoff and release letters.
2.2.2.16. AUTHORIZATION DOCUMENTS -- EACH BORROWER. A
certificate of an Authorized Officer of EACH BORROWER delivering true, accurate
and complete versions of (a) its Articles of Incorporation and all amendments
thereto (but only to the extent not previously delivered in connection with the
execution of this Agreement), AND (b) its Bylaws and all amendments thereto (but
only to the extent not previously delivered in connection with the execution of
this Agreement), AND (c) the resolutions authorizing its execution, delivery and
full performance of the Loan Documents and all other documents, certificates and
actions required hereunder or in connection herewith, AND (d) an incumbency
certificate setting forth its officers (together with the corresponding
signatures), AND (e) a long-form good standing and qualification certificate
with respect to each jurisdiction listed on Schedule 3.1 hereto.
2.2.2.17. AUTHORIZATION DOCUMENTS -- GUARANTOR. A
certificate of an Authorized Officer of GUARANTOR delivering true, accurate and
complete versions of (a) its Articles of Incorporation and all amendments
thereto, AND (b) its Bylaws and all amendments thereto, AND (c) the resolutions
authorizing its execution, delivery and full performance of the Loan Documents
and all other documents, certificates and actions required hereunder or in
connection herewith, AND (d) an incumbency certificate setting forth its
officers (together with the corresponding signatures), AND (e) a long-form good
standing and qualification certificate with respect to each jurisdiction listed
on Schedule 3.1 hereto.
2.2.2.18. OFFICER'S CERTIFICATES. One or more certificates
of an Authorized Officer of EACH BORROWER delivering true, accurate and complete
copies of the following documents and agreements (together with all amendments,
exhibits and schedules thereto):
a. LIEN SEARCHES -- Searches satisfactory to Administrative
Agent with respect to consensual liens, tax liens, judgments
and bankruptcy, listing respectively (a) all effective UCC
financing statements that name each Borrower or Guarantor
(including any predecessor thereto and any operating or
tradenames thereof) as "debtor" that are filed in the States
of Illinois, Texas, California, or any other U.S.
jurisdiction in which such debtor currently operates or has
had assets at any time within the immediately preceding 12
calendar months (TOGETHER WITH copies of such financing
statements), AND (b) all tax liens against any Obligor (or
the assets thereof), AND (c) all outstanding judgments
against any Obligor (or the assets thereof), AND (d) whether
any Obligor has filed bankruptcy within the preceding 5
years.
b. FINANCIAL STATEMENTS -- A set of (a) the quarterly financial
statements covering Borrowers for fiscal quarter ending
March 31, 1996 (or, if prepared, June 30, 1996) (and
otherwise consistent with the requirements of Section 4.2
hereof) AND (b) the audited financial statements covering
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Borrowers for fiscal year ending December 31, 1995 (as
otherwise consistent with the requirements of Section 4.2
hereto).
c. EQUITYHOLDER AGREEMENTS -- Each shareholder agreement, voting
agreement, buy-sell agreement, option, warrant, put, call,
right of first refusal, and any other agreement or instrument
with conversion rights into equity of any Borrower either (a)
between any Borrower AND any holder or prospective holder of
any equity interest of any Borrower (including interests
convertible into such equity) OR (b) otherwise between any
two or more such holders of equity interests.
d. EMPLOYMENT AND NON-COMPETE AGREEMENTS -- Each employment
agreement between any Borrower AND any director or executive
officer of any Borrower, AND each non-compete agreement
between any Borrower AND any former owner of any Borrower.
e. INTER-AFFILIATE AGREEMENTS. Each written agreement (not
otherwise delivered under this Section) between any Borrower
AND any Affiliate of any Borrower (other than officers or
directors of such Borrower).
f. DISASTER RECOVERY AND CONTINGENCY PROGRAM. A description of
the currently effective disaster recovery and contingency
program of each Borrower, as required to be delivered under
Section 4.8 hereof.
g. LEASES AS LESSEE -- Each lease between any Borrower AND any
owner or landlord of real or personal property used in
connection with any Borrower's business for which it has an
annual rent obligation in excess of $36,000.
h. LEASES AS LESSOR -- Each lease (other than with respect to
Customer Equipment) between any Borrower AND any lessee of
real or personal property owned or leased by any Borrower,
BUT ONLY TO THE EXTENT the lessee thereunder has an annual
rent obligation in excess of $12,000.
2.2.2.19. OTHER DOCUMENTS. Administrative Agent must have
received any additional agreements, documents and certificates as Administrative
Agent, any Lender or counsel to Administrative Agent may reasonably request.
2.2.3. CONSUMMATION OF GUARANTOR'S IPO. Guarantor simultaneously
(or prior to such Settlement Date) must consummate and complete an initial
public offering of its stock raising at least $50 million in gross proceeds (and
having a consolidated market capitalization of at least $200 million).
2.2.4. SATISFACTION OF EXISTING INDEBTEDNESS. CCC simultaneously
(or prior hereto) must satisfy its entire indebtedness owed to (and terminate
all related rights of and
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agreements with) a group of lenders the agent for which is Canadian Imperial
Bank of Commerce.
2.2.5. CASH FLOW LEVERAGE. As of such Settlement Date, Borrowers
must be in compliance with the Leverage Ratio requirement under Section 4.1
hereof using an amount for Funded Debt that is as of such Settlement Date and
inclusive of the proposed Advance.
2.3. LINE OF CREDIT ADVANCES (AFTER THE INITIAL ADVANCES). The obligation
of Administrative Agent and each Lender to fund any request for an Advance under
the Line of Credit Facility is subject to the following conditions precedent
(unless and except to the extent expressly waived by Administrative Agent in its
sole and absolute discretion, but with the concurrence of the Required Lenders):
2.3.1. ADVANCE REQUEST. Administrative Agent must have received an
Advance Request under and in accordance with Section 1.4.1 hereof.
2.3.2. CASH FLOW LEVERAGE. As of the Settlement Date for such
Advance (and in addition to any other requirements and covenants hereunder),
Borrowers must be in compliance with the Leverage Ratio requirement under
Section 4.1 hereof using an amount for Funded Debt that is as of such Settlement
Date and inclusive of the proposed Advance.
2.3.3. OTHER DOCUMENTS. Administrative Agent must have received any
additional documents, certificates and opinions as Administrative Agent, any
Lender or counsel to Administrative Agent may reasonably request, including
without limitation, UCC-1 financing statements, fixture filings and leasehold
mortgages regarding new locations for other assets of any Borrower.
2.3.4. COMPLIANCE.
2.3.4.1. FEES AND EXPENSES. Borrowers must have paid (or
made acceptable arrangements with Administrative Agent to pay) all reasonable
fees, costs, expenses and taxes due and payable hereunder, including, without
limitation, all reasonable costs and expenses incurred in connection with or as
a result of reviewing and funding such Advance Request.
2.3.4.2. REPRESENTATIONS. Each, and all, representations
and warranties contained in the Loan Documents (including those in Article 3
hereof) and in each other certificate or other writing delivered to
Administrative Agent pursuant hereto or thereto on or prior to the Settlement
Date must be true, correct and complete in all material respects on and as of
the Settlement Date, EXCEPT for such deviations disclosed in writing and in good
faith reasonably acceptable to Administrative Agent (which disclosure will not
constitute Lenders' waiver or acceptance thereof).
2.3.4.3. NO DEFAULT. There must not be any Default or Event
of Default hereunder or any default under any other Loan Document on the
Settlement Date, AND there must not be any such Default or Event of Default
occurring as a result of funding such Advance,
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EXCEPT for such defaults disclosed in writing and in good faith reasonably
acceptable to the Required Lenders (which disclosure will not constitute
Lenders' waiver or acceptance thereof).
2.3.4.4. NO MATERIAL CHANGE. There must not have been (in
Administrative Agent's reasonable opinion, but with concurrence of the Required
Lenders) any Material Adverse Change between the Closing Date and the Settlement
Date.
ARTICLE 3: REPRESENTATIONS AND WARRANTIES
Each Borrower, as of the Closing Date and the Settlement Date for
each Advance hereunder, hereby represents and warrants as follows:
3.1. ORGANIZATION AND GOOD STANDING. Each Borrower (a) is duly organized,
validly existing and in good standing under the laws of its jurisdiction of
organization, AND (b) has all requisite power and authority (corporate and
otherwise) to own its properties and to conduct its business as now conducted
and as currently proposed to be conducted, AND (c) is duly qualified to conduct
business as a foreign organization and is currently in good standing in each
state and jurisdiction in which it conducts business (except where the failure
to be so qualified and in good standing could not reasonably be expected to have
or cause a Material Adverse Effect). Guarantor is duly organized, validly
existing and in good standing under the laws of its jurisdiction of
organization. Each state and jurisdiction in which any Borrower and/or
Guarantor is organized or is (or should be) qualified to conduct business is
listed on Schedule 3.1 hereto (except where the failure to be so qualified and
in good standing could not reasonably be expected to have or cause a Material
Adverse Effect).
3.2. POWER AND AUTHORITY. Each Borrower has all requisite power and
authority under applicable law and under its Organic Documents, Authorizations
and Licenses to execute, deliver and perform the obligations under applicable
law to execute, deliver and perform the obligations under the Loan Documents to
which it is a party. Except as disclosed on Schedule 3.2 hereto, all actions,
waivers and consents (corporate, regulatory and otherwise) necessary or
appropriate for each Borrower and Guarantor to execute, deliver and perform the
Loan Documents to which it is a party have been taken and/or received.
3.3. VALIDITY AND LEGAL EFFECT. This Agreement constitutes, and the other
Loan Documents to which any Borrower or Guarantor is a party constitute (or will
constitute when executed and delivered), the legal, valid and binding
obligations of Borrowers and Guarantor (jointly and severally) enforceable
against each in accordance with the terms thereof, except to the extent
enforceability thereof is limited by applicable bankruptcy, insolvency or
similar laws affecting creditors' rights generally.
3.4. NO VIOLATION OF LAWS OR AGREEMENTS. The execution, delivery and
performance of the Loan Documents (a) will not violate or contravene any
material provision of any material law, rule, regulation, administrative order
or judicial decree (federal, state or local), AND (b) will not violate or
contravene any provision of the Organic Documents of any Borrower or
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Guarantor, AND (c) will not result in any material breach or violation of (or
constitute a material default under) any agreement or instrument by which any
Borrower or Guarantor or any of its property are bound the breach or violation
of which could reasonably be expected to have or cause a Material Adverse
Effect, AND (d) will not result in or require the creation of any Lien (other
than pursuant to or as permitted by the Loan Documents) upon or with respect to
any properties of any Borrower, whether such properties are now owned or
hereafter acquired.
3.5. TITLE TO ASSETS; EXISTING ENCUMBRANCES; INTELLECTUAL AND REAL
PROPERTY. Each Borrower (a) has good and marketable title to all of its
owned real and personal property assets that are essential and required in
conducting its operations or that otherwise have a fair market value in
excess of $25,000, AND (b) has the right to possess and use all of its leased
or licensed real and personal property assets that are essential and required
in conducting its operations or that otherwise have a fair market value in
excess of $25,000. Guarantor has good and marketable title to all of the
equity of CCC, AND CCC has good and marketable title to all of the equity of
each other Borrower (EXCEPT as disclosed on Schedule 3.6 hereto). All such
property interests are free and clear of any Liens, EXCEPT for Permitted
Liens (as defined in Section 5.5 hereof) and Liens described on Schedule 3.5
hereto. Schedule 3.5A hereto lists each trademark, service xxxx, copyright,
patent, database, customized application software and systems integration
software, trade secret and other intellectual property owned, licensed,
leased, controlled or applied for by any Borrower, TOGETHER WITH relevant
identifying information with respect to such intellectual property
describing, among other things, the date of creation and the method of
protection against adverse claims. Schedule 3.5B hereto lists each real
property interest owned, leased or otherwise used by any Borrower, TOGETHER
WITH relevant identifying information describing, among other things, the
location and use of each such real property interest, whether such interest
is owned or leased, and the estimated appraised value thereof. Each such
property and asset that is used or useful in connection with any Borrower's
business or operations is in good order and repair (ordinary wear and tear
excepted) and is fully covered by the insurance required under Section 4.8
hereof. Each such property and asset owned by any Borrower that is used or
useful in connection with any Borrower's business or operations is titled in
the current legal name of such Borrower. Schedule 3.5C hereto identifies
each legal, operating and trade name that any Borrower has used (or permitted
the filing of a UCC financing statement under) at any time during the twelve
(12) consecutive calendar years immediately preceding the Closing Date.
3.6. CAPITAL STRUCTURE AND EQUITY OWNERSHIP. Schedule 3.6 hereto
accurately and completely discloses (a) the number of shares and classes of
equity ownership rights and interests of each Borrower (whether existing as
common or preferred stock, or warrants, options or other instruments convertible
into such equity), AND (b) the ownership thereof. Schedule 3.6 hereto also
accurately and completely discloses (a) the number of shares and classes of
equity ownership rights and interests of Guarantor (whether existing as common
or preferred stock, or warrants, options or other instruments convertible into
such equity), AND (b) the ownership thereof (except with respect to the new
shares of Guarantor issued in connection with its IPO). All such shares and
interests are validly existing, fully paid and non-assessable.
3.7. SUBSIDIARIES, AFFILIATES AND INVESTMENTS. Schedule 3.7 hereto
accurately and completely discloses (a) each Subsidiary and Affiliate of each
Borrower (other than its officers
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and directors) AND (b) each investment in or loan to any other Person by any
Borrower (to the extent that such investment or loan exceeds $50,000).
3.8. MATERIAL CONTRACTS. Schedule 3.8 hereto accurately and completely
discloses each material contract (as defined below) of each Borrower and
indicates (or as of and after the initial Settlement Date will indicate) any
stated restrictions on assignments thereof. Subsection "a" of Schedule 3.8
hereto lists those material contracts of each Borrower that Administrative Agent
and such Borrower have mutually agreed in good faith to be required and
essential in the operation of such Borrower, AND Subsection "b" of Schedule 3.8
hereto lists all other material contracts. No Borrower has committed any
unwaived breach or default under any material contract (whether or not listed on
Schedule 3.8 hereto), AND after due inquiry and investigation, no Borrower has
any knowledge or reason to believe that any other party to any such material
contract (whether or not listed on Schedule 3.8 hereto) has or might have
committed any unwaived breach or default thereof. For purposes of this Section
3.8 hereof, a "material contract" of a Borrower includes the following types of
agreements to which such Borrower is a party: (1) any contract (other than
customer contracts) either with annual compensation, consideration or payments
in excess of $400,000 OR with aggregate compensation, consideration or payments
in excess of $800,000, AND (2) any lease of real estate or office space from
which CCC conducts its primary business operations, AND (3) any other agreement
or contract the loss or breach of which could reasonably be expected to have or
cause a Material Adverse Effect.
3.9. LICENSES AND AUTHORIZATIONS. Each Borrower possesses all Licenses
and other Authorizations necessary or required in the conduct of its businesses
and/or the operation of its properties. Each material Authorization is valid,
binding and enforceable on, against and by such Borrower. Each material
Authorization is subsisting without any defaults thereunder or enforceable
adverse limitations thereon, AND (to the best of each Borrower's knowledge,
after reasonable inquiry) no material Authorization is subject to any
proceedings or claims opposing the issuance, renewal, development or use thereof
or contesting the validity thereof. Schedule 3.9 hereto accurately and
completely lists each material Authorization of each Borrower, TOGETHER WITH
relevant identifying information describing such Authorizations.
3.10. TAXES AND ASSESSMENTS. Except as disclosed on Schedule 3.10 hereto,
each Borrower has timely filed all required tax returns and reports (federal,
state and local) or has properly and timely filed for extensions of the time for
the filing thereof, EXCEPT to the extent that the failure to so timely file
could not reasonably be expected to have or cause a Material Adverse Effect. No
Borrower has knowledge of any deficiency, penalty or additional assessment due
or appropriate in connection with any such returns or reports. All taxes
(federal, state and local) imposed upon any Borrower or any of its properties,
operations or income have been paid and discharged prior to the date when any
interest or penalty would accrue for the nonpayment thereof, EXCEPT for those
taxes (a) being contested in good faith by appropriate proceedings diligently
prosecuted and with adequate reserves reflected on the financial statements in
accordance with GAAP (all as also disclosed on Schedule 3.10 hereto) OR (b) as
to which the failure to pay could not reasonably be expected to have or cause a
Material Adverse Effect.
3.11. LITIGATION AND LEGAL PROCEEDINGS. Except as disclosed on Schedule
3.11 hereto, there is no litigation, claim, investigation, administrative
proceeding, labor controversy or
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similar action that is pending or, to the best of each Borrower's knowledge and
information after due inquiry, threatened against any Borrower or its properties
that in each instance, if adversely resolved, could reasonably be expected to
have or cause a Material Adverse Effect.
3.12. ACCURACY OF FINANCIAL INFORMATION. All financial statements
previously furnished to Administrative Agent or any Lender concerning the
financial condition and operations of any Borrower for periods as of and after
January 1, 1995 (a) have been prepared in accordance with GAAP consistently
applied, AND (b) fairly present the financial condition of the organization
covered thereby as of the dates and for the periods covered thereby. In
addition, all written information previously furnished to Administrative Agent
or any Lender concerning the then-current financial condition and past
operations of any Borrower are true, accurate and complete in all material
respects.
3.13. ACCURACY OF OTHER INFORMATION. All written information contained in
any application, schedule, report, certificate, or any other document furnished
to Administrative Agent or any Lender by any Borrower or Guarantor in connection
with the Loan Documents is in all material respects true, accurate and complete,
AND no such Person has omitted to state therein (or failed to include in any
such document) any material fact or any fact necessary to make such information
not misleading. All written projections furnished to Administrative Agent or
any Lender by any Borrower or any other Person on behalf of any Borrower have
been prepared in good faith based upon estimates and assumptions believed by
such Borrower to be reasonable at the time made, making use of such information
as was available at the date such projection was made.
3.14. COMPLIANCE WITH LAWS GENERALLY. Each Borrower is in compliance in
all material respects with all laws, rules, regulations, administrative orders
and judicial decrees (federal, state, local and otherwise) applicable to it, its
operations and its properties the breach or violation of which could reasonably
be expected to have or cause a Material Adverse Effect.
3.15. ERISA COMPLIANCE. Each Borrower is in compliance in all respects
with all applicable provisions of the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), and all rules, regulations and orders implementing
ERISA, EXCEPT to the extent that the failure to be in such compliance could not
reasonably be expected to have or cause a Material Adverse Effect.
3.15.1. Neither any Borrower nor any ERISA Affiliate thereof
maintains or contributes to (or has maintained or contributed to) any
multiemployer plan (as defined in Section 4001 of ERISA) under which any
Borrower or any ERISA Affiliate thereof could reasonably be expected to have any
withdrawal liability.
3.15.2. Neither any Borrower nor any ERISA Affiliate thereof sponsors
or maintains any defined benefit pension plan under which there is an
accumulated funding deficiency within the meaning of Section 412 of the Code,
whether or not waived.
3.15.3. The liability for accrued benefits under each defined benefit
pension plan that is sponsored or maintained by any Borrower or any ERISA
Affiliate thereof (determined on
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the basis of the actuarial assumptions utilized by the PBGC) does not exceed the
aggregate fair market value of the assets under each such defined benefit
pension plan.
3.15.4. The aggregate liability of each Borrower and each ERISA
Affiliate thereof arising out of or relating to a failure of any employee
benefit plan within the meaning of Section 3(2) of ERISA to comply with
provisions of ERISA or the Code will not have a Material Adverse Effect.
3.15.5. There does not exist any unfunded liability (determined on
the basis of actuarial assumptions utilized by the actuary for the plan in
preparing the most recent annual report) of any Borrower or any ERISA Affiliate
thereof under any plan, program or arrangement providing post-retirement, life
or health benefits.
3.15.6. No Reportable Event and no Prohibited Transaction (as defined
in ERISA) has occurred or is occurring with respect to any plan with which any
Borrower is associated to the extent that such event could reasonably be
expected to have or cause a Material Adverse Effect.
3.16. ENVIRONMENT COMPLIANCE.
3.16.1. Each Borrower has received all permits and filed all
notifications necessary under and is otherwise in compliance in all respects
(EXCEPT to the extent that the failure to obtain such permit, file such
notification or be in such compliance could not reasonably be expected to have
or cause a Material Adverse Effect) with all applicable federal, state and local
laws, rules, ordinances and regulations governing the control, removal, storage,
transportation, spill, release or discharge of hazardous or toxic wastes,
substances and petroleum products, INCLUDING, WITHOUT LIMITATION, as provided in
the provisions of (a) the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended by the Superfund Amendment and Reauthorization
Act of 1986, AND (b) the Solid Waste Disposal Act, AND (c) the Clean Water Act,
AND (d) the Clean Air Act, AND (e) the Hazardous Materials Transportation Act,
AND (f) the Resource Conservation and Recovery Act of 1976, AND (g) the Federal
Water Pollution Control Act Amendments of 1972 (all of the foregoing enumerated
and nonenumerated statutes, regulations, rules and ordinances, all as amended
from time to time, collectively, the "Environmental Control Statutes").
3.16.2. No Borrower has given any written or oral notice to the
Environmental Protection Agency ("EPA") or any state or local agency with regard
to any actual or imminently threatened removal, storage, transportation, spill,
release or discharge of hazardous or toxic wastes, substances or petroleum
products either (a) on properties owned or leased by such Borrower OR (b)
otherwise in connection with the conduct of its business and operations.
3.16.3. No Borrower has received notice that it is potentially
responsible for costs of clean-up of any actual or imminently threatened spill,
release or discharge of hazardous or toxic wastes or substances or petroleum
products pursuant to any Environmental Control Statute.
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3.17. MARGIN RULE COMPLIANCE. No Borrower owns or has any present
intention of acquiring any "Margin Stock" within the meaning of the following
Margin Regulations of the FRB: Regulation G at 12 C.F.R. Pt. 207, AND
Regulation T at 12 C.F.R. Pt. 220, AND Regulation U at 12 C.F.R. Pt. 221, AND
Regulation X at 12 C.F.R. Pt. 224. The credit extended under this Agreement
does not constitute "Purpose Credit" within the meaning of the FRB's Margin
Regulations.
3.18. FEES AND COMMISSIONS. Except as disclosed on Schedule 3.18 hereto
or as required by Section 1.7 hereof, no Borrower owes any fees or
commissions of any kind in connection with this Agreement, AND no Borrower
knows of any claim (or any basis for any claim) for any fees or commissions
in connection with this Agreement.
3.19. SOLVENCY. Immediately prior to and upon the execution of this
Agreement and the funding of each Advance hereunder, CCC (independently) and
all Borrowers (as a whole, including CCC) was, is and will be solvent such
that:
3.19.1 The fair saleable value of its or their assets (including,
without limitation, the fair saleable value of its or their goodwill and
other intangible property) is greater than the total amount of its or their
liabilities, including without limitation, all contingent liabilities; and
3.19.2 The present fair saleable value of its or their assets
(including, without limitation, the fair saleable value of its or their
goodwill and other intangible property) is not less than the amount that will
be required to pay the probable liability on its or their debts as such debts
become absolute and matured; and
3.19.3 It or they will be able to realize upon its or their assets
and will have sufficient cash flow from operations to enable it or them to
pay its or their debts and other liabilities, contingent obligations and
other commitments as such debts, obligations, liabilities and commitments
mature in the normal and ordinary course of business; and
3.19.4 The sum of its or their debts is not greater than all of
its or their property at a fair valuation (including, without limitation, the
fair valuation of its goodwill and other intangible property).
Neither CCC nor Borrowers (as a whole, including CCC) intends to (or believes
that it or they will) incur debts or liabilities beyond its or their ability
to pay such debts and liabilities as such debts and liabilities become due
and mature. No Borrower is engaged in a business or transaction, or about to
engage in a business or transaction, for which the property of CCC or of all
Borrowers would constitute unreasonably small capital or assets after giving
due consideration to the prevailing practice and industry in which it or they
are engaged. No Borrower has incurred any obligations under the Loan
Documents or has made any conveyance pursuant hereto or in connection
herewith with the actual intent to hinder, delay or defraud present or future
creditors of it or any of its Affiliates. For purposes of this Section, in
computing the amount of contingent liabilities at any time, it is intended
that such liabilities will be computed at the amount which, in light of all
the facts and circumstances existing at such time, represents the amount that
can reasonably be expected to become an actual mature liability.
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ARTICLE 4: AFFIRMATIVE COVENANTS
Each Borrower hereby covenants and agrees that, so long as any
indebtedness remains outstanding hereunder, each Borrower will comply with
the following affirmative covenants:
4.1. FINANCIAL COVENANTS AND RATIOS. As of the end of each fiscal
quarter, Borrowers (on a consolidated basis, including consolidated joint
ventures) will satisfy and comply with each of the following financial ratios
and characteristics, each of which will be determined using GAAP consistently
applied, except as otherwise expressly provided:
4.1.1. TOTAL CHARGE COVERAGE RATIO. A ratio of OCF TO Total
Charges of NOT LESS THAN the following:
a. 1.10-to-1.0, from the Closing Date through September 30,
1996; and
b. 1.15-to-1.0, from October 1, 1996 through December 31,
1996; and
c. 1.20-to-1.0, from January 1, 1997 through June 30,
1997; and
d. 1.25-to-1.0, after June 30, 1997.
4.1.2. CASH FLOW LEVERAGE RATIO. A ratio of Funded Debt TO OCF of
NOT MORE THAN the following:
a. If the Term Loan Commitment determined pursuant to
Section 1.3.1 hereof as of the first Settlement Date hereunder (and the
initial Advance of funds hereunder) is $0.00, THEN:
(1) 3.50-to-1.0, from the Closing Date through
December 31, 1996; and
(2) 3.00-to-1.0, from January 1, 1997 through December 31,
1997; and
(3) 2.50-to-1.0, from January 1, 1998 through December 31,
1999; and
(4) 2.00-to-1.0, after December 31, 1999; OR
b. If the Term Loan Commitment determined pursuant to
Section 1.3.1 hereof as of the first Settlement Date hereunder (and the
initial Advance of funds hereunder) is greater than $0.00, THEN:
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(1) 2.50-to-1.0, from the Closing Date through
December 31, 1997; and
(2) 2.00-to-1.0, after December 31, 1997.
4.2. PERIODIC FINANCIAL STATEMENTS.
4.2.1. MONTHLY FINANCIAL STATEMENTS. Within forty-five (45)
calendar days of the end of each calendar month (or, if finalized sooner,
then within 5 Business Days of finalizing such financial statements),
Borrowers must prepare and deliver to each Lender and Administrative Agent a
complete set of unaudited consolidated internal monthly financial statements
similar in form and content with the form of monthly financial statements
attached as Exhibit 4.2.1 hereto (which form may be revised by Borrowers from
time to time to reflect changes made to the form of monthly financial
reporting provided by Borrowers to the executives and directors of CCC
Information Services Group, Inc.). TOGETHER WITH the monthly financial
statements, each Lender and Administrative Agent must also receive a
certificate executed by a financial officer of CCC as is acceptable to
Administrative Agent stating that the financial statements fairly present the
financial condition of each Borrower as of the date thereof and for the
periods covered thereby.
4.2.2. QUARTERLY FINANCIAL STATEMENTS. Within forty-five (45)
calendar days of the end of each fiscal quarter, Borrowers must prepare and
deliver to each Lender and Administrative Agent unaudited quarterly
consolidating financial statements. Such financial statements must include,
without limitation, a balance sheet and an income statement (with
appropriate external notes and schedules, if prepared). Such financial
statements must be prepared in accordance with GAAP consistently applied
(except as approved by Administrative Agent in its sole and absolute
discretion). TOGETHER WITH the quarterly financial statements, each Lender
and Administrative Agent must also receive a certificate executed by the
President, the Chief Financial Officer, the Treasurer or such other senior
executive officer of CCC as is acceptable to Administrative Agent (a) stating
that the financial statements fairly present the financial condition of each
Borrower as of the date thereof and for the periods covered thereby, AND
(b) providing a reconciled calculation demonstrating compliance with each
financial covenant and ratio under Section 4.1 hereof (using the form
attached as Exhibit 4.2 hereto), AND (c) calculating, as of the end of
such fiscal period, the then-current amount for the Available Credit Portion
and the year-to-date amounts under Sections 5.7(e) and 5.10(a) hereof, AND
(d) certifying that as of the date of such certificate there is not any
existing Default or Event of Default.
4.2.3. ANNUAL FINANCIAL STATEMENTS. Within one hundred and twenty
(120) calendar days after the close of each fiscal year, Borrowers must
prepare and deliver to each Lender and Administrative Agent a complete set of
audited annual consolidated financial statements of Guarantor (with
accompanying notes and consolidating schedules). Such financial statements
(a) must include the types of financial statements and information required
on a quarterly basis under this Section 4.2 hereof as well as a cash flow
statement and a reconciliation of consolidated net worth and capital
accounts, AND (b) must be prepared in accordance with GAAP consistently
applied, AND (c) must be certified without qualification by an independent
certified public accounting firm satisfactory to Administrative Agent.
TOGETHER WITH the annual
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financial statements, each Lender and Administrative Agent must also receive
all related management letters prepared by such accountants and an audit
report or opinion signed by such accountants stating that the financial
statements fairly present the consolidated financial condition of Guarantor
as of the date thereof and for the periods covered thereby.
4.3. OTHER FINANCIAL AND SPECIALIZED REPORTS.
4.3.1. FINANCIAL FORECASTS. Within 15 Business Days of completing
or materially revising any periodic budgets or financial forecasts, Borrowers
must deliver a complete copy thereof to each Lender and Administrative Agent.
4.3.2. SEC FILINGS BY GUARANTOR. Within 15 Business Days of the
date that Guarantor makes any filing with the Securities Exchange Commission
(whether on Form 8-K, Form 10-K, Form 10-Q, or otherwise), Borrowers must
deliver a complete copy thereof to each Lender and Administrative Agent.
4.4. FISCAL YEAR. CCC will maintain a fiscal year that has a December 31st
year end.
4.5. BOOKS AND RECORDS. Each Borrower (a) will keep and maintain
satisfactory and adequate books and records of account in which entries are
made in accordance with GAAP AND (b) will make or cause the same to be made
available to each Lender and Administrative Agent (or agents or nominees
thereof) at any reasonable time upon reasonable notice for inspection and to
make extracts therefrom.
4.6. EXISTENCE AND GOOD STANDING. Each Borrower will preserve and
maintain (a) its existence as a corporation under the laws of its
jurisdiction of organization, AND (b) its good standing in all jurisdictions
where it conducts business, AND (c) the validity of all its Authorizations
and Licenses required in the conduct of its businesses (EXCEPT, with respect
to Clause "c", to the extent that the failure to preserve and maintain could
not reasonably be expected to have or cause a Material Adverse Effect).
4.7. DEPOSIT ACCOUNTS. Each Borrower will maintain all of its operating
and deposit accounts at financial institutions THAT are federally insured
depository institutions rated as "well capitalized" by their primary federal
regulators. All such accounts (and the balances therein) shall reside in the
United States of America, OTHER THAN accounts established in the ordinary
course of business for collection purposes in foreign countries and operating
accounts established in the ordinary course of business used for foreign
operations as to which the balances therein in the aggregate among all such
collection and operating accounts does not at any time exceed $500,000 for
any five (5) consecutive Business Days. Within twenty (20) calendar days of
opening or acquiring any new such account, Borrowers must provide
Administrative Agent with written notice of the institution's name and
location and the account name and number with respect to each such account.
The institution's name and location and the account name and number for each
such account currently in existence, as well as an approximate current
balance (I.E., a current balance at any time within the preceding thirty (30)
calendar days), are listed on Schedule 4.7 hereto.
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4.8 INSURANCE; MAINTENANCE OF PROPERTIES; DISASTER CONTINGENCY.
4.8.1. GENERAL INSURANCE PROVISIONS. Each Borrower will keep,
maintain and preserve all of its property and assets in good order and repair
(ordinary wear and tear excepted). Such property must be fully covered by
insurance with reputable and financially sound insurance companies
(reasonably acceptable to Administrative Agent). Such insurance must insure
against such hazards in such amounts and with such deductibles as is
customary in the relevant industry (and as reasonably acceptable to
Administrative Agent). Each such policy must name Administrative Agent (for
the benefit of Lenders) as loss payee and as additional insured. Each such
policy must also require the insurer to furnish Administrative Agent with
written notice at least 25 calendar days prior to any termination of coverage
and must provide Administrative Agent (on behalf of Lenders) with the right
(but not the obligation) to cure any non-payment of premium. Upon
Administrative Agent's request, each Borrower will furnish Administrative
Agent with proof of such insurance (in form and substance acceptable to
Administrative Agent) and will cause Administrative Agent (for the benefit of
Lenders) to be reflected thereon as additional insured and the loss payee
thereof.
4.8.2. DISASTER RECOVERY AND CONTINGENCY PROGRAM. Each Borrower
will maintain (and at least annually review the sufficiency of) a disaster
recovery and contingency plan that addresses such Borrower's plans for
continuing operations upon the occurrence of a natural disaster or other
event that destroys or prevents the use of or access to such Borrower's
primary mainframe computer systems. Within 180 calendar days after the
Closing Date (and at all times thereafter), such plan must also address
events that destroy or prevent the use of or access to such Borrower's other
material computer systems, material information databases and records, and
primary operations facility. Such contingency plan and any material changes
thereto must be in form and substance reasonably acceptable to Administrative
Agent. Upon request, each Borrower will provide Administrative Agent with a
current copy of such plan.
4.9 LOAN PURPOSE. Borrowers will use the proceeds of each Advance
under the Facilities exclusively as set forth in Section 1.1.3 hereof or
Section 1.2.3 hereof.
4.10 LITIGATION; OCCURRENCE OF DEFAULTS. Each Borrower will notify
Administrative Agent and each Lender in writing immediately upon (a) the
institution or commencement of any litigation, legal or administrative
proceeding, or labor controversy that could reasonably be expected to have or
cause a Material Adverse Effect, OR (b) the happening of any event or the
assertion or threat of any claim that could reasonably be expected to have or
cause a Material Adverse Effect, OR (c) the occurrence of any Default or
Event of Default hereunder, OR (d) the occurrence of any default under any
other Loan Document.
4.11 TAXES. Each Borrower will pay and discharge all taxes, assessments
or other governmental charges or levies imposed on it or any of its property
or assets prior to the date upon which any penalty for non-payment or late
payment is incurred, UNLESS (a) the same are then being contested in good
faith by appropriate proceedings diligently prosecuted, AND (b) adequate
reserves therefor in accordance with GAAP have been established, AND
(c) Administrative Agent has been notified thereof in writing if such
non-paid or non-discharged item exceeds $50,000, AND (d) the consequences of
such non-payment could not reasonably be
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expected to have or cause a Material Adverse Effect (the determination of which,
to the extent that such non-paid or non-discharged item exceeds $50,000, will be
subject to Administrative Agent's reasonable judgement).
4.12. MANAGEMENT CHANGES. Borrowers will notify Administrative Agent in
writing within thirty (30) calendar days after any change (including, without
limitation, any dismissal or change in title or status) in the executive
personnel of any Borrower.
4.13. COSTS AND EXPENSES. Borrowers (jointly and severally) will pay or
reimburse Administrative Agent and each Lender for all protective advances made
by Administrative Agent or any Lender under the Loan Documents. Borrower
(jointly and severally) will also pay or reimburse Administrative Agent and each
Lender for all other out-of-pocket costs and expenses (including, without
limitation, all reasonable attorneys' fees and disbursements) that
Administrative Agent or such Lender may pay or incur in connection with (a) the
preparation, negotiation and review of any waivers, consents and amendments in
connection herewith and all other documentation related thereto, AND (b) the
funding of the indebtedness hereunder, AND (c) the collection or enforcement of
any of the Loan Documents, AND (d) the periodic examination of the books and
records of any Borrower at any time during the occurrence of a Default, AND (e)
Administrative Agent's release of its interests in the Collateral in accordance
with the terms of the Loan Documents. Borrowers (jointly and severally) will
pay any and all recordation taxes or other fees due upon the filing of the
financing statements or documents of similar effect required to be filed under
the Loan Documents, and will provide Administrative Agent with a copy of nay
receipt or other evidence reflecting such payments if so requested in writing by
Administrative Agent. All obligations provided for in this Section shall
survive the termination of this Agreement and/or the repayment of indebtedness
hereunder.
4.14. COMPLIANCE WITH LAWS.
4.14.1 GENERAL. Each Borrower will comply in all material respects
(a) with all material laws, rules, regulations, and orders (federal, state,
local and otherwise) applicable to its business, AND (b) with the provisions and
requirements of all Authorizations. Each Borrower will notify Administrative
Agent immediately in detail (upon obtaining knowledge thereof) of (a) any actual
or alleged material failure to comply with or violation of any such laws, rules,
regulations or orders, or under the terms of any of such Authorizations, OR (b)
the occurrence or existence of any facts or circumstances that with the passage
of time, the giving of notice or otherwise could create such a failure to comply
or violation or could reasonably be expected to occasion the termination of any
of such Authorization.
4.14.2 ERISA. Each Borrower will comply in all respects with the
provisions of ERISA to the extent applicable to any Plan maintained by it or for
the benefit of its employees, EXCEPT to the extent that the failure to be in
such compliance could not reasonably be expected to have or cause a Material
Adverse Effect. No Borrower will (a) incur any material accumulated funding
deficiency (without the meaning of ERISA and the regulations thereunder), or any
material liability to the PBGC established by ERISA OR (b) permit any reportable
event (as defined in ERISA) to occur or the occurrence of any other event which
could reasonably be expected to be the basis for PBGC to assert a material
liability against it or which could
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reasonably be expected to result in the imposition of a Lien on its properties
or assets. Each Borrower will notify Administrative Agent in writing promptly
after any assertion or threat of any of the following: the occurrence of any
reportable event or the occurrence of any other event which indicates that a
Plan may not be financially sound or which could reasonably be expected to be
the basis for PBGC to assert a material liability against it or impose a Lien on
any of its properties or assets.
4.14.3. ENVIRONMENTAL. Each Borrower will comply in all respects
with the Environmental Control Statutes, EXCEPT to the extent that the failure
to be in such compliance could be reasonably be expected to have or cause a
Material Adverse Effect. Each Borrower (a) will notify Administrative Agent
when the EPA, any state or local agency or any other Person provides oral or
written notification to it with regard to an actual or imminently threatened
removal, spill, release or discharge of hazardous or toxic wastes, hazardous or
toxic substances or petroleum products in violation of any Environmental Control
Statute, AND (b) will notify Administrative Agent in detail immediately upon the
receipt by it of an assertion of liability under the Environmental Control
Statutes, or any actual or alleged failure to comply with or perform, breach or
violation under any such laws or regulations.
4.15. FURTHER ACTIONS.
4.15.1. ADDITIONAL COLLATERAL. Each Borrower will execute, deliver
and record (or, as appropriate, cause the execution, delivery and recordation)
at any time upon Administrative Agent's request and in form and substance
reasonably satisfactory to Administrative Agent, any of the following
instruments in favor of Administrative Agent (for the benefit of Lenders) as
additional Collateral hereunder (other than with respect to Excluded Assets):
(a) mortgages, deeds of trust and/or assignments on or of any real or personal
property owned, leased or licensed by it, AND (b) certificates of title
encumbrances against any of its titled vehicles, AND (c) any other like
assignments or agreements specifically covering any of its properties or assets
(including, without limitation, assignments of any patents, trademarks,
copyrights, databases, trade secrets and other forms of intellectual property),
AND (f) any financing or continuation statements requested by Administrative
Agent.
4.15.2. FURTHER ASSURANCES. From time to time, each Borrower will
execute and deliver (or will cause to be executed and delivered) such
supplements and amendments to the Loan Documents and such further instruments as
may be reasonably required to effectuate the intention of the parties to (or to
otherwise facilitate the performance of) the Loan Documents.
4.15.3. ESTOPPEL CERTIFICATE. Upon Administrative Agent's reasonable
request, CCC will consent (which consent will not be unreasonably withheld) to
execute, acknowledge and deliver (or, as appropriate, to cause the execution,
acknowledgement and delivery) to such Person as Administrative Agent may request
a statement in writing certifying as follows (to the best of its knowledge,
after due inquiry): (a) that the Loan Documents (as amended, if applicable) are
unmodified and in full force and effect, AND (c) the then unpaid principal
balance of Facilities hereunder, AND (d) whether or not any Default is then
occurring under any of the Loan Documents and, if so, specifying each such
Default of which the signer may have
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knowledge. Unless CCC otherwise consents (which consent will not be
unreasonably withheld delayed or conditioned), Administrative Agent must give
CCC at lease ten (10) Business Days to complete and deliver any such
certificate. Each Borrower understands and agrees that any such certificate
delivered pursuant to this Section may be relied upon by Administrative Agent,
each Lender and, if any different, by the recipient thereof.
4.15.4. WAIVERS AND CONSENTS. Upon Administrative Agent's request,
each Borrower will use its best efforts to obtain and deliver (in form and
substance reasonably satisfactory to Administrative Agent) a waiver or consent
to the assignment to Administrative Agent (for the benefit of Lenders) of any
contract, lease, Authorization or other agreement to which it is a party (other
than with respect to Customer Equipment).
4.15.5 ADDITIONAL MATERIAL CONTRACTS, LICENSES AND AUTHORIZATIONS.
Each Borrower (a) will notify Administrative Agent in writing within 90 calendar
days after executing or becoming bound by any contract, agreement, License or
other Authorization that should have been listed on Schedule 3.5A hereto,
Schedule 3.8 hereto or Schedule 3.9 hereto if it had existed as of the Closing
Date, AND (b) will concurrently update Schedule 3.5A hereto, Schedule 3.8 hereto
or Schedule 3.9 hereto (as appropriate). To the extent that any Borrower at any
time updates the material contracts listed on Schedule 3.8 hereto, THEN such
Borrower and Administrative Agent will concurrently agree in good faith as to
whether such contract should appropriately be listed under Subsection "a" or
Subsection "b" of such Schedule.
4.16. POST CLOSING ITEMS. Borrowers must accomplish, perform and (as
appropriate) deliver to Administrative Agent the following items on or before
the designated dates:
a. On or before October 1, 1996, Borrowers must use their best
efforts to obtain a landlord estoppel and consent in form and
substance reasonably acceptable to Administrative Agent with
respect to Borrowers' office space in Illinois, California and
Texas.
b. On or before December 1, 1996, Borrowers EITHER
(1) Must deliver to Administrative Agent a legal opinion of
Canadian counsel (in form and substance reasonably
acceptable to Administrative Agent) addressing (a) the due
authorization and enforceability of the Loan Documents by
and against Certified Collateral Corporation of Canada, Ltd.
("CCC Canada") and (b) the attachment and perfection of
Administrative Agent's lien for the benefit of Lenders on
the equity of CCC Canada and the other Collateral in which
CCC Canada has an interest (and must promptly thereafter
assist Administrative Agent in perfecting such liens in
accordance with such opinion), OR
(2) Execute an amendment to the Loan Documents (which shall be
negotiated in good faith by Borrowers, Administrative Agent
and the
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Required Lenders) that will either remove CCC Canada as a
Borrower or will appropriately restrict transactions with
CCC Canada.
The only effect of Borrowers' failure to satisfy the provisions
of either clause (1) or (2) above by December 1, 1996, is that
CCC Canada will be deemed automatically thereafter not to be a
Borrower. After the Closing Date and prior to satisfying the
requirements of this clause "b" of this Section, the operations
of CCC Canada will not materially change, and no other Borrower
will engage in any material transaction with CCC Canada.
c. On or before March 1, 1997, Borrowers must prepare and deliver to
Administrative Agent a written disaster recovery and contingency
plan in accordance with Section 4.8.2 hereof.
4.17. OTHER INFORMATION. Each Borrower will provide Administrative Agent
with any other documents and information (financial or otherwise) reasonably
requested by Administrative Agent or its counsel from time to time.
ARTICLE 5: NEGATIVE COVENANTS
Each Borrower hereby covenants and agrees that, so long as any
indebtedness remains outstanding hereunder, each Borrower will comply with the
following negative covenants (unless the Required Lenders otherwise consent in
writing, which consent will not be unreasonably withheld while no Default is
occurring):
5.1. CAPITAL EXPENDITURES. Borrowers (on a consolidated basis) will not
incur Capital Expenditures in any fiscal year in excess of the following
designated amounts:
Permitted
Fiscal Year Capital
Ending Expenditures
----------- ------------
12/31/96 $4 million
Thereafter $4 million plus the
Cashflow Adjustment
For purposes of this Section, Capital Expenditures (a) will include all
capitalized software costs, BUT (b) exclude Customer Equipment purchases and up
to $900,000 in leasehold improvements to be incurred prior to December 31, 1997.
For purposes of this Section, the "Cashflow Adjustment" for any fiscal year will
be an amount equal to the result of multiplying $4 million by the following
ratio:
OCF for fiscal year in question DIVIDED BY 100
-------------------------------
OCF for fiscal year 1996
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If the result of the foregoing ratio is a negative number, THEN the Cashflow
Adjustment for the applicable period will equal $0.00.
NOTWITHSTANDING THE FOREGOING, to the extent that the permitted Capital
Expenditures (referenced above) exceed the actual Capital Expenditures for any
fiscal year, THEN the excess may be carried over and used during the immediately
succeeding fiscal year as additional permitted amounts of Capital Expenditures
in such subsequent fiscal year after Borrowers have first exhausted the
otherwise permitted amounts of Capital Expenditures for such fiscal year
determined in accordance with the above schedule. FURTHER NOTWITHSTANDING THE
FOREGOING, no Borrower may make such Capital Expenditure that otherwise violates
any covenant under the Loan Documents or otherwise causes a Default hereunder.
5.2. ADDITIONAL INDEBTEDNESS. No Borrower will borrow any monies or
create, incur or assume any additional indebtedness, or any other monetary
obligations or liabilities (including, without limitation, monetary obligations
under non-compete arrangements) EXCEPT AS FOLLOWS (collectively, the "Permitted
Indebtedness"):
a. Borrowings from Lenders hereunder; AND
b. Trade indebtedness and indebtedness in respect of endorsement of
negotiable instruments for collection, each in the normal and ordinary course of
business for value received; AND
c. Indebtedness and obligations incurred TO PURCHASE FIXED OR
CAPITAL ASSETS (other than Customer Equipment), consistent with the restrictions
in Section 5.1 hereof and Section 5.5 hereof, PROVIDED, HOWEVER, that (1) the
aggregate amount of such asset acquisition indebtedness outstanding at any time
may not exceed $2,000,000, AND (2) no such transaction otherwise causes a
Default hereunder, AND (3) such indebtedness is immediately included in the
calculation of Funded Debt, AND (4) such fixed or capital assets being purchased
do not constitute customized application software or systems integration
software or any asset the loss of which could reasonably be expected to have or
cause a Material Adverse Effect; AND
d. Indebtedness and obligations incurred UNDER CAPITAL LEASES,
consistent with the restrictions in Section 5.1 hereof and Section 5.5 hereof,
PROVIDED, HOWEVER, that (1) no such transaction otherwise causes a Default
hereunder, AND (2) such indebtedness (including leases of Customer Equipment) is
immediately included in the calculation of Funded Debt, AND (3) such fixed or
capital assets being leased do not constitute customized application software or
systems integration software or any asset the loss of which could reasonably be
expected to have or cause a Material Adverse Effect; AND
e. Indebtedness TO PURCHASE OR LEASE CUSTOMER EQUIPMENT, consistent
with the restrictions in Section 5.5 hereof, PROVIDED, HOWEVER, that (1) no such
transaction otherwise causes a Default hereunder, AND (2) such indebtedness is
immediately included in the calculation of Funded Debt; AND
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filed naming Administrative Agent (for the benefit of Lenders) as "secured
party" with respect to such assets. NOTWITHSTANDING THE FOREGOING, each Borrower
may remove the following types of assets under the following conditions: (a)
temporary removal of equipment for repair or replacement PROVIDED THAT
Administrative Agent has received prior written notice thereof indicating the
type of equipment, its approximate fair market value, the destination location
and an estimate of the length of time that such equipment will be removed from
the relevant jurisdiction, AND (b) booths, displays and related accompanying
equipment of such Borrower being used temporarily in connection with marketing
any Borrower's business at trade shows or otherwise (provided that the aggregate
fair market value thereof does not exceed $1 million), AND (c) portable
computers and related accompanying equipment being used by the officers,
employees and independent representatives of a Borrower in connection with
accomplishing any Borrower's business activities at home offices or otherwise
(provided that the aggregate fair market value thereof does not exceed $1
million).
5.15. MODIFICATIONS TO ORGANIC DOCUMENTS. No Borrower will (a) amend or
otherwise modify any of its Organic Documents, OR (b) change its official name,
its operating names or the names under which it executes contracts and conducts
business.
5.16. MODIFICATIONS TO MATERIAL RELATIONSHIPS AND AGREEMENTS. No Borrower
will (or will permit any other party to) amend, modify, cancel, terminate or
otherwise alter (a) any Subordinated Indebtedness (if and when any such
indebtedness exists), OR (b) any agreement regarding the provision of management
services to a Borrower by a Person who is not a Borrower (including, without
limitation, the Management Agreement, once executed). No Borrower will (or will
permit any other party to) cancel, terminate or permit the expiration of any
material contract listed (or contract that should be listed) under Subsection
"a" of Schedule 3.8 hereto UNLESS the services or products provided under
such material contract are replaced by such Borrower with comparable services
or products under a new contract with another Person. In addition, Borrowers
will notify Administrative Agent in writing within 30 calendar days after any
cancellation, termination, expiration, amendment, modification or other
alteration of or to any material contract listed (or contract that should be
listed) on Schedule 3.8 hereto (OTHER THAN with respect to immaterial or
non-substantive modifications).
5.17. MARGIN STOCK RESTRICTIONS; OTHER FEDERAL STATUES. No Borrower will
use any of the proceeds hereunder, directly or indirectly, to purchase or carry,
or to reduce or retire any indebtedness that was originally incurred to purchase
or carry, any Margin Stock or for any other purpose that might constitute the
transactions contemplated hereby as a "Purpose Credit" within the meaning of the
FRB's Margin Regulations. In addition, no Borrower will engage as its principal
business in the extension of credit for purchasing or carrying Margin Stock. No
Borrower will cause or permit any Loan Document to violate any other regulation
of the FRB or the SEC or any provision of the Securities Act of 1933, the
Securities Exchange Act of 1934, the Investment Company Act of 1940 or the Small
Business Investment Act of 1958, each as amended, or any rules or regulations
promulgated under any of such statutes.
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ARTICLE 6: ADDITIONAL COLLATERAL AND RIGHT OF SET OFF
6.1. ADDITIONAL COLLATERAL. As additional collateral for the payment of
any and all indebtedness and obligations of each Borrower to Administrative
Agent and/or any Lender (whether matured or unmatured, and whether now existing
or hereafter incurred or created hereunder or otherwise), each Borrower hereby
grants Administrative Agent and each Lender a security interest in and a lien
upon all funds, balances and other property of any kind of such Borrower, or in
which such Borrower has any interest (limited to the interest of such Borrower
therein), now or hereafter in the possession, custody or control of
Administrative Agent or such Lender or any Affiliate of Administrative Agent or
such Lender, OTHER THAN Excluded Assets.
6.2. RIGHT OF SET-OFF. Administrative Agent and each Lender are hereby
authorized at any time and from time to time during the occurrence and
continuance of an Event of Default hereunder (unless expressly prohibited by
applicable law) to set-off and apply any and all deposits (general or special,
time or demand, provisional or final) and other indebtedness at any time held or
owing by Administrative Agent or any Lender (or any of Affiliate of
Administrative Agent or any Lender) to or for the credit or the account of any
Borrower against any and all of the indebtedness and monetary obligations of any
Borrower now or hereafter existing under the Loan Documents or any other
evidence of indebtedness originated, acquired or otherwise held by
Administrative Agent or any Lender, irrespective of whether Administrative Agent
or such Lender shall have made any demand under the Loan Documents or other
indebtedness and although such obligations may be unmatured. Administrative
Agent and each Lender agree to notify Borrowers within a commercially reasonable
time after any such set-off and application made by Administrative Agent or such
Lender (as applicable); PROVIDED, HOWEVER, that the failure to give such notice
shall not in any way affect the validity of such set-off and application.
6.3. ADDITIONAL RIGHTS. The rights of Administrative Agent and each Lender
under this Article 6 are in addition to the other rights and remedies
(including, without limitation, other rights of set-off) that Administrative
Agent and Lenders may have by contract, at law, or otherwise.
ARTICLE 7: DEFAULT AND REMEDIES
7.1. EVENTS OF DEFAULT. Each of the following events separately
constitutes an independent Event of Default hereunder:
7.1.1. PAYMENT OBLIGATIONS. If any payment of principal, interest
or other sum payable to Administrative Agent or any Lender under any Loan
Document (including any Note) is not received by Administrative Agent on the
date such payment is due and payable AND such failure continues for five (5)
Business Days after the due date therefor.
7.1.2. REPRESENTATIONS AND WARRANTIES. If any representation,
warranty or other statement made in any Loan Document, or in any written report,
schedule, exhibit, certificate, agreement, or other document given by or on
behalf of any Borrower or any other Obligor (or
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otherwise furnished in connection herewith) when made was misleading or
incorrect in any material respect.
7.1.3. FINANCIAL COVENANTS. If Borrowers default in or fail to
observe at any time any of the covenants set forth in Section 4.1 hereof.
7.1.4. OTHER COVENANTS IN LOAN DOCUMENTS. If any Borrower or any
other Obligor defaults in the full and timely performance when due of any other
covenant or agreement contained in any Loan Document (or in any other document
or agreement now or hereafter executed or delivered in connection herewith), AND
such default remains uncured for a period of ten (10) Business Days after the
earlier of the date that Administrative Agent or any Lender notifies any
Borrower thereof or the date that any Borrower otherwise acquires knowledge or
should have acquired knowledge thereof.
7.1.5. DEFAULT UNDER OTHER AGREEMENTS WITH LENDERS. If any event
of default (as described or defined therein, which term shall include any notice
and cure periods provided therein) occurs or exists under the provisions of
any other credit agreement, security agreement, mortgage, deed of trust,
indenture debenture, account agreement, contract, lease or other agreement
between any Borrower, any Affiliate of any Borrower or any other Obligor AND
Administrative Agent or any Lender (or any Affiliate of Administrative Agent
or any Lender), UNLESS such default is waived by Lenders or cured to Lenders'
satisfaction.
7.1.6. DEFAULT UNDER MATERIAL AGREEMENTS WITH OTHER PARTIES. If
any event of default (as described or defined therein, which term shall include
any notice and cure periods provided therein) occurs or exists under the
provisions of any material contract listed under Subsection "a" of Schedule 3.8
hereto (or a contract that should be listed under Subsection "a" of Schedule 3.8
hereto under the terms hereof). NOTWITHSTANDING THE FOREGOING, the occurrence
of such an event of default thereunder will not constitute an Event of Default
hereunder IF AND SO LONG AS either:
(a) (1) Administrative Agent was notified of the occurrence of such event
of default in writing within 10 Business Days after the occurrence
thereof, AND (2) the other Person to such agreement has not formally
declared an event of default thereunder, has not accelerated any
related indebtedness and is not then otherwise pursuing any remedies
thereunder, AND (3) such Borrower continues to diligently pursue
resolving such dispute with such other Person, AND (4) such default is
ultimately cured (without incurring any material liability) to
Required Lenders' satisfaction within a reasonable period of time
after such 10 Business Day period (but in any event within 60
calendar days after the occurrence of such default), OR
(b) Within 60 calendar days after the occurrence of such event of default,
the services or products provided under such material contract are
replaced by such Borrower with comparable services or products under a
new contract with another Person (without incurring any material
liability) in form and substance acceptable to Administrative Agent.
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7.1.7. SECURITY INTEREST. If the security interest or lien in any
of the Collateral (with a fair market value exceeding collectively $50,000),
other than Collateral consisting of equity ownership interest in subsidiaries or
other securities (for which there is no permissible threshold for
non-compliance), at any time does not constitute a legal, valid and enforceable
security interest or lien in favor of Administrative Agent (for the benefit of
Lenders).
7.1.8. CHANGE OF CONTROL.
a. If CCC Information Services Group Inc. ceases to own
and control 100% of each class of equity securities of CCC.
b. If any Borrower other than CCC ceases to be owned and
controlled 100% by CCC and/or other Borrowers.
7.1.9. GOVERNMENT ACTION.
a. If custody or control of any substantial part of the
property of any Borrower is assumed by any governmental agency or any court of
competent jurisdiction at the instance of any governmental agency.
b. If any governmental regulatory authority or judicial
body makes any other final nonappealable determination that could reasonably be
expected to have or cause a Material Adverse Effect.
7.1.10. INSOLVENCY. If CCC, or Borrowers (as a whole, including
CCC), or any holder of equity interests of any Borrower (other than another
Borrower), or any other Obligor that pledges Collateral under the Loan Documents
(other than another Borrower) becomes insolvent, bankrupt or generally fails to
pay its, his or her debts as such debts become due; OR if any Borrower, or any
holder of equity interests of any Borrower, or any other Obligor that pledges
Collateral under the Loan Documents (a) is adjudicated insolvent or bankrupt in
any proceeding, OR (b) admits in writing an inability to pay its, his or her
debts, OR (c) comes under the authority of a custodian, receiver or trustee (or
one is appointed for substantially all of its, his or her property), OR
(d) makes an assignment for the benefit of creditors, OR (e) has commenced
against it, him or her any proceedings under any law related to bankruptcy,
insolvency, liquidation, dissolution or the reorganization, readjustment or
release of debtors that is either not contested or if contested is not
dismissed or stayed within ninety (90) calendar days after the commencement
thereof, OR (f) commences or institutes any proceedings under any law related
to bankruptcy, insolvency, liquidation, dissolution or the reorganization,
readjustment or release of debtors, OR (g) calls a meeting of creditors with
a view to arranging a composition or adjustment of debt (other than a meeting
solely with Administrative Agent or Lenders), OR (h) by any act or failure to
act indicates consent to, approval of or acquiescence in any of the foregoing.
7.1.11. LOSS OR REVOCATION OF GUARANTY. If Guarantor at any time
revokes (or attempts to revoke) the Guaranty or its continuing obligations
thereunder, OR if the Guaranty at any time does not constitute a legal, valid,
binding and enforceable obligation of Guarantor.
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7.1.12. ADDITIONAL LIABILITIES. If any judgment, writ, warrant,
attachment or execution or similar process that calls for payment or presents
liability in excess of $250,000 is rendered, issued or levied against any
Borrower or any of its properties or assets AND such liability is not paid,
waived, stayed, vacated, discharged, settled, satisfied or fully bonded within
sixty (60) calendar days after it is rendered, issued or levied.
7.1.13. MATERIAL ADVERSE CHANGE. If a Material Adverse Change has
occurred with respect to CCC or Borrowers (as a whole, including CCC) from the
condition set forth in the financial statements furnished to Lenders for the
fiscal year ended immediately prior to the Closing Date, or from the condition
of Borrowers most recently disclosed to Lenders in any other manner.
7.2. REMEDIES.
7.2.1. GENERAL; ACCELERATION. Upon the occurrence of any Event of
Default and at any time thereafter during the continuance of such Event of
Default, at the election of Required Lenders, and by notice to any Borrower
(except if an Event of Default described in Section 7.1.10 hereof has occurred,
in which case acceleration shall occur automatically with respect to the entire
indebtedness and without notice), Lenders may accelerate the Line of Credit
Maturity Date and/or the Term Loan Maturity Date and may declare all or any
portion of the indebtedness of any or all Borrowers to Lenders (hereunder or
otherwise, but including the unpaid balance of principal, interest and fees
hereunder) to be immediately due and payable. Upon any such declaration,
Lenders and Administrative Agent (for the benefit of Lenders) will have the
immediate right to enforce and realize upon any collateral security granted
hereunder or in connection herewith in any manner or order that the Required
Lenders or Administrative Agent (at the direction of Required Lenders) deem
expedient without regard to any equitable principles of marshalling or
otherwise.
7.2.2. OTHER. In addition to any rights granted hereunder or in
any other Loan Document, each Lender and Administrative Agent will have all
other rights and remedies granted by any applicable law (including the rights of
a secured party under the Uniform Commercial Code), and all rights and remedies
will be cumulative in nature.
ARTICLE 8: THE ADMINISTRATIVE AGENT
8.1. APPOINTMENT, AUTHORIZATION AND GRANT OF AUTHORITY. Each Lender hereby
irrevocably designates and appoints Signet Bank as the Administrative Agent of
such Lender to act as specified in this Agreement and the other Loan Documents,
AND each such Lender hereby irrevocably authorizes Signet Bank (in its capacity
as Administrative Agent) to take actions on behalf of such Lender, to exercise
such powers and to perform such other duties as are expressly delegated to the
Administrative Agent by the terms of this Agreement and the other Loan
Documents, TOGETHER WITH all such other powers and authority as are reasonably
incidental thereto. Without limiting the generality of the foregoing, the
Administrative Agent (on behalf of each Lender) is authorized (a) to execute
each Loan Document (other than this Agreement, but including, without
limitation, all financing statements, continuation statements and other
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collateral agreements and documents) for and on behalf of each Lender, AND
(b) to accept each Loan Document and all other agreements, documents,
instruments, certificates and opinions reasonably required to implement the
intent of the parties to this Agreement, AND (c) to file and record all
financing statements, continuation statements and other collateral agreements
and documents, AND (d) to receive and deliver communications and
notifications to Lenders and to Borrowers, AND (e) to receive and distribute
payments and Advances between Lenders and Borrowers. The duties and
responsibilities of the Administrative Agent shall be ministerial and
administrative in nature. NOTWITHSTANDING any provision to the contrary in
any Loan Document, the Administrative Agent (a) shall not have any duties or
responsibilities OTHER THAN those expressly set forth in the Loan Documents
(which duties and responsibilities shall be subject to the limitations and
qualifications set forth in this Article), AND (b) shall not have any
fiduciary relationship with any Lender; AND no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into the
Loan Documents or otherwise exist against the Administrative Agent.
8.2. ACCEPTANCE OF APPOINTMENT. Signet Bank hereby accepts such
appointment and agrees to act as such Administrative Agent upon the express
terms and conditions (but subject to the limitations and qualifications) set
forth in this Article.
8.3. ADMINISTRATIVE AGENT'S RELATIONSHIP WITH BORROWERS. The provisions
of this Article are solely for the benefit of the Administrative Agent and
Lenders, AND no Borrower shall have any rights as a third party beneficiary
(or otherwise) under this Article. In performing its functions and duties
under the Loan Documents, the Administrative Agent shall act solely as an
agent of the Lenders, AND the Administrative Agent does not assume (and shall
not be deemed to have assumed) any obligation or relationship of agency or
trust with or for any Borrower.
8.4. NON-RELIANCE ON ADMINISTRATIVE AGENT AND OTHER LENDERS. Each Lender
expressly acknowledges and agrees (a) that the Administrative Agent (and its
directors, officers, employees, agents, attorneys-in-fact and Affiliates)
have not made any representations or warranties to such Lender AND (b) that
no act by the Administrative Agent hereinafter taken (including, without
limitation, any review of the affairs of any Borrower or other Obligor) shall
be deemed to constitute any representation or warranty by the Administrative
Agent to any Lender. Each Lender represents to the Administrative Agent that
it (independently and without any reliance upon the Administrative Agent or
any other Lender, and based upon such documents and information as it has
deemed necessary or appropriate) has made its own appraisal, investigation
and credit analysis of the business, assets, operations, properties,
financial and other condition, prospects and creditworthiness of each
Borrower and other Obligor and has made its own decision to make its Loans
hereunder and to enter into this Agreement. Each Lender also covenants and
represents that it (independently and without any reliance upon the
Administrative Agent or any other Lender, and based upon such documents and
information as it shall deem necessary or appropriate) will continue to make
its own credit analysis, appraisals and decisions in taking or not taking
action under this Agreement, and will continue to make such investigations as
it deems necessary or appropriate to inform itself as to the business,
assets, operations, properties, financial and other condition, prospects and
creditworthiness of each Borrower and other Obligor. Except as otherwise
expressly provided in the Loan Documents, the Administrative Agent shall not
have any duty or responsibility (a) to keep any
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Lender informed as to the performance or observance by any Borrower or other
Obligor of its obligations under the Loan Documents, OR (b) to inspect the
books or properties of any Borrower or other Obligor, OR (c) to provide any
Lender with any credit or other information concerning the business,
operations, assets, properties, financial and other condition, prospects or
creditworthiness of any Borrower which may come into the possession of the
Administrative Agent (or any of its officers, directors, employees, agents,
attorneys-in-fact or Affiliates). The Administrative Agent will make
reasonable efforts to furnish to the Lenders material information concerning
Borrowers of which the Administrative Agent has actual knowledge; HOWEVER, in
the absence of gross negligence, willful misconduct or fraud, the
Administrative Agent shall not be liable to any Lender for any failure to
relay or furnish to such Lender any such information.
8.5. RELIANCE BY ADMINISTRATIVE AGENT. The Administrative Agent shall be
entitled to rely and act (and shall be fully protected in relying and acting)
upon any note, writing, resolution, instrument, report, notice, consent,
certificate, affidavit, letter, request, telecopy or other electronic
facsimile transmission, telex, telegram, cable, teletype, electronic
transmission by modem, computer disk or any other message, statement, order
or other writing, conversation or communication believed by Administrative
Agent in good faith to be genuine and correct and to have been signed, sent
or made by the proper Person or Persons. The Administrative Agent shall not
be bound to ascertain or inquire as to the satisfaction, performance or
observance of any of the terms, provisions, covenants or conditions of or the
accuracy of any statements or representations in any Loan Document on the
part of any Borrower. The Administrative Agent may deem and treat the stated
payee of any Note as the holder thereof for all purposes under the Loan
Documents UNLESS AND UNTIL Administrative Agent has received and accepted an
assignment and assumption agreement relating thereto in form and substance
acceptable to the Administrative Agent.
8.6. DELEGATION OF DUTIES; ADDITIONAL RELIANCE BY ADMINISTRATIVE AGENT.
The Administrative Agent may consult with, employ and perform any of its
duties under the Loan Document by or through agents, attorneys-in-fact, legal
counsel, independent public accountants and other experts. The Administrative
Agent shall not be responsible for the negligence or misconduct of any such
Persons selected by Administrative Agent with reasonable care, AND the
Administrative Agent shall be fully protected in any action or inaction taken
by it in good faith in reliance upon or in accordance with the advice or
statements of legal counsel (including, without limitation, counsel to
Borrowers), independent accountants and other experts selected by
Administrative Agent.
8.7. ACTING ON INSTRUCTION OF LENDERS. The Administrative Agent shall
be entitled to act or refrain from acting (and shall be fully protected in
acting or refraining from acting) under the Loan Documents in accordance with
a written request of or written instructions from the Required Lenders. The
Administrative Agent shall also be entitled to refrain from acting (and shall
be fully protected in refraining from acting) under the Loan Documents UNLESS
Administrative Agent first (a) receives such advice or concurrence of the
Required Lenders as Administrative Agent deems appropriate OR (b) is
indemnified to its satisfaction by the Lenders against any and all liability
and expense which it may incur by reason of taking or continuing to take any
such action. Except as otherwise expressly stated in the Loan Documents, all
determinations by, requests by and other references to "Lenders" means the
Required Lenders,
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AND any requests or instructions by the Required Lenders (and any action or
inaction by Administrative Agent pursuant thereto) shall be binding upon all
the Lenders.
8.8. ACTIONS UPON OCCURRENCE OF DEFAULT OR EVENT OF DEFAULT. Each
Lender will use its best efforts to notify the Administrative Agent
immediately in writing upon becoming aware of the occurrence of any Default
or Event of Default. The Administrative Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless the Administrative Agent has received notice from a Lender
or a Borrower referring to this Agreement, describing such Default or Event
of Default, and stating that such notice is a "notice of default". If the
Administrative Agent receives any such notice of default, THEN the
Administrative Agent shall use its best efforts to give notice thereof to
each Lender as soon as reasonably practical. Upon the occurrence of any
Default or Event of Default, the Lenders shall promptly consult with one
another in an attempt to agree upon a mutually acceptable course of conduct.
In the absence of unanimous agreement among the Lenders as to the appropriate
course of conduct, the Administrative Agent shall exercise rights and take
such other action on behalf of all Lenders with respect to such Default or
Event of Default as directed by the Required Lenders. Unless and until the
Administrative Agent shall have received such directions from the Lenders
(or, as applicable, the Required Lenders), the Administrative Agent may (but
shall not be obligated to) take such action (or refrain from taking such
action) with respect to such Default or Event of Default as Administrative
Agent shall deem advisable in the best interests of the Lenders.
8.9. ADMINISTRATIVE AGENT'S RIGHTS AS LENDER IN INDIVIDUAL CAPACITY.
The Administrative Agent (and its Affiliates) may make loans to, may accept
deposits from, may issue letters of credit on behalf of, and may otherwise
generally engage (and continue to engage) in any kind of business with any
Borrower or other Obligor as though the Administrative Agent were not the
Administrative Agent under the Loan Documents. With respect to any Loans made
by Administrative Agent as a Lender hereunder and all obligations owing to it
as a Lender under the Loan Documents, the Administrative Agent shall have the
same rights, powers duties and obligations under the Loan Documents as any
other Lender and may exercise such rights, powers duties and obligations as
though it were not the Administrative Agent hereunder. To the extent that the
Administrative Agent is a Lender hereunder, the terms "Lender", "Lenders" and
"Required Lenders" shall include the Administrative Agent in its individual
capacity.
8.10. ADVANCES BY ADMINISTRATIVE AGENT. Unless the Administrative Agent
has been notified in writing by a Lender prior to the Settlement Date for any
Advance or Loan that such Lender will not make the amount constituting its
Pro Rata share of such Advance or Loan available to the Administrative Agent
on or prior to such applicable Settlement Date, THEN the Administrative Agent
may (but shall not be required to) assume that such Lender will make such
amount available to the Administrative Agent in immediately available funds
on or before such Settlement Date, AND in reliance upon such assumption, the
Administrative Agent may make available to Borrowers a corresponding amount
on behalf of such Lender. If the amount of such Pro Rata share is not made
available to the Administrative Agent in immediately available funds by a
Lender until after the applicable Settlement Date, THEN such Lender shall pay
to the Administrative Agent on demand and in immediately available funds an
amount equal to the result of the following equation (which shall be in
addition to the amount of such Lender's Pro
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Rata share of such Advance or Loan): the PRODUCT OF (a) the average (computed
for the period determined under clause (c) below) of the weighted average
interest rate for Federal Funds as determined by the Administrative Agent
during each day included in such period, MULTIPLIED BY (b) the amount of such
Lender's Pro Rata share of such Advance or Loan, MULTIPLIED BY (c) a fraction
(i) the numerator of which is the number of days that elapsed from and
including such Settlement Date to and including the date on which such
Lender's Pro Rata share of such Advance or Loan is actually received by the
Administrative Agent in immediately available funds AND (ii) the denominator
of which is 360. A statement from the Administrative Agent submitted to any
Lender with respect to any amounts owing under this Section shall be
conclusive (absent manifest error) as to the amount owed to the
Administrative Agent by such Lender. If such Lender's Pro Rata share is not
actually received by the Administrative Agent in immediately available funds
within three (3) Business Days after the applicable Settlement Date for such
Advance or Loan, THEN the Administrative Agent shall be entitled to recover
from such Lender, on demand, the amount of such Pro Rata share with interest
thereon for the entire such period since the Settlement Date at the highest
interest rate per annum (including the applicable Rate Margin) then
applicable under the Facilities.
8.11. PAYMENTS TO LENDERS. Promptly after receipt in immediately
available funds from Borrowers of any payment of principal, interest or any
fees or other amounts due to any Lender under the Loan Documents, the
Administrative Agent shall distribute to each Lender that Lender's Pro Rata
share of such funds so received.
8.12. PRO-RATA SHARING OF SETOFF PROCEEDS. Any sums obtained by the
Administrative Agent or any Lender from any Borrower or other Obligor by
reason of any exercise of a right of setoff or banker's lien shall be shared
Pro Rata among Lenders. NOTWITHSTANDING THE FOREGOING, neither the
Administrative Agent nor any Lender shall be required to so share with any
other Lender collections from any Borrower or other Obligor specifically
relating to (or the proceeds of any item of collateral that is not subject to
the Loan Documents) any other Indebtedness of such Borrower or other Obligor
to the Administrative Agent or such Lender.
8.13. LIMITATION ON LIABILITY OF ADMINISTRATIVE AGENT. The
Administrative Agent (and its directors, officers, employees, agents,
attorneys-in-fact and Affiliates) shall not be liable to any Lender for any
action taken or inaction by Administrative Agent or such Person under or in
connection with any Loan Document, EXCEPT to the extent of foreseeable actual
loses resulting directly and exclusively from Administrative Agent's own
gross negligence, willful misconduct or fraud. Without limiting the
generality of the foregoing, the Administrative Agent (and its directors,
officers, employees, agents, attorneys-in-fact and Affiliates) shall not be
liable, responsible or have any duty with respect to any of the following:
(a) the genuineness, execution, authorization, validity, effectiveness,
enforceability, collectibility, value or sufficiency of any Loan Document, OR
(b) the collectibility of any amount owed by any Obligor to any Lender, OR
(c) the accuracy, completeness or truthfulness of any recital, statement,
representation or warranty made to the Administrative Agent or to any Lender
in connection with any Loan Document or other certificate, affidavit, report,
opinion, financial statement, document or instrument executed or furnished
pursuant to or in connection with any Loan Document, OR (d) any failure of
any Person to receive any notice or communication due such Person under any
Loan Document or applicable law, OR (e) the assets, liabilities, financial
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condition, results of operations, business, prospects or creditworthiness of
any Borrower or other Obligor, OR (f) ascertaining or inquiring into the
satisfaction, observance or performance of any condition, covenant or
agreement in any Loan Document (including, without limitation, the use or
proceeds by any Borrower), OR (g) the inspection of any books, records or
properties of any Obligor, OR (h) the existence or possible existence of any
Default or Event of Default.
8.14. INDEMNIFICATION. To the extent that Borrowers do not actually
reimburse, indemnify or hold harmless Administrative Agent (in accordance
with Section 10.16 hereof), THEN each Lender hereby agrees on a Pro Rata
basis to indemnify and hold harmless the Administrative Agent (acting in its
capacity as Administrative Agent) from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
reasonable expenses or disbursements of any kind whatsoever that at any time
(including, without limitation, at any time following the payment of the
Obligations of Borrowers hereunder) may be imposed upon, incurred by or
asserted against the Administrative Agent in its capacity as such in any way
relating to or arising out of any Loan Document, or the transactions
contemplated hereby or any action or inaction taken by the Administrative
Agent under or in connection with any of the foregoing; PROVIDED that no
Lender shall be liable to the Administrative Agent for the payment of any
portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting
directly and exclusively from the gross negligence, willful misconduct or
fraud of the Administrative Agent. If any indemnity furnished to the
Administrative Agent for any purpose (in the opinion of the Administrative
Agent) shall be insufficient or become impaired, THEN the Administrative
Agent may require additional indemnity and cease (or not commence) to do the
acts indemnified against until such additional indemnity is furnished to the
satisfaction of the Administrative Agent. The agreement in this Section shall
survive the payment of all Advances, Loans, fees and other Obligations of
each Borrower arising hereunder.
8.15. RESIGNATION; SUCCESSOR ADMINISTRATIVE AGENT. The Administrative
Agent at any time may resign as the Administrative Agent under the Loan
Documents by giving the Lenders and Borrowers written notice thereof at least
20 calendar days prior to the effective date of such resignation. During such
notice period, the Required lenders shall appoint (from among the Lenders) a
successor Administrative Agent for the Lenders, SUBJECT TO the prior approval
by Borrowers and the consent of each Lender (such approval or consent, as the
case may be, not to be unreasonably withheld, delayed or conditioned). Upon
acceptance of such appointment by such successor agent, (a) such successor
agent shall succeed to the rights, powers and duties of the Administrative
Agent, AND (b) the term "Administrative Agent" shall include such successor
agent effective upon its appointment, AND (c) the resigning Administrative
Agent's rights, powers and duties as the Administrative Agent shall be
terminated, all without any other or further act or deed on the part of such
former Administrative Agent or any of the parties to the Loan Documents.
NOTWITHSTANDING THE FOREGOING, after the effectiveness of the resigning
Administrative Agent's resignation hereunder as the Administrative Agent, the
provisions of this Article shall continue to inure to its benefit as to any
actions taken or omitted to be taken by it while it was Administrative Agent
under the Loan Documents.
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ARTICLE 9: DEFINITIONS
9.1. DEFINITIONS. When used in this Agreement, the following terms
shall have the respective meanings set forth below:
9.1.1. "ACCOUNT" means, at any relevant time, the designated or
principal deposit account of Borrowers at Administrative Agent for purposes
of effecting transactions hereunder.
9.1.2. "ADJUSTED LIBO RATE" means the rate per annum (rounded
upwards, if necessary, to the next 1/16 of 1%) determined pursuant to the
following formula:
Adjusted LIBO Rate = LIBO Rate
----------------------
1 - Reserve Percentage
For purposes of this calculation, "LIBO RATE" means the London Interbank
Offered Rate per annum displayed at approximately 10:00 a.m. (local time in
Richmond, Virginia) two Business Days before the first day of any Interest
Period for which the Adjusted LIBO Rate is applicable on the Reuters Screen
designated as the "Libo Rate" (or its equivalent or replacement) for the
offering of dollar deposits by leading banks in the London interbank market
for a period of approximately 3 months or 6 months (corresponding to the
length of the applicable Interest Period selected by Borrowers) and an amount
approximately equal to the amount outstanding hereunder to which such LIBO
Rate will be applicable. For purposes of this calculation, "RESERVE PERCENTAGE"
means that percentage (expressed as a decimal) prescribed by the FRB (or any
other governmental or administrative agency to which any Lender is subject)
for determining the reserve requirements (including, without limitation, any
basic, supplemental, marginal or emergency reserves) for (a) such Lender's
negotiable, non-personal time deposits in U.S. Dollars with maturities of
comparable duration, OR (b) deposits of U.S. Dollars in a non-U.S. or an
international banking office of such Lender used to fund loans.
9.1.3. "ADMINISTRATIVE AGENT" means Signet Bank or any successor,
assignee or other transferee of Administrative Agent.
9.1.4. "ADVANCE" means any advance of funds under any Facility.
9.1.5. "ADVANCE REQUEST" has the meaning set forth in
Section 1.4.1 hereof.
9.1.6. "AFFILIATE" of any Person means (a) any Person directly or
indirectly owning, controlling or holding 5% or more of the outstanding
beneficial interest in such Person, OR (b) any Person as to which such other
Person directly or indirectly owns, controls or holds 5% or more of the
outstanding beneficial interest, OR (c) any Person directly or indirectly
under common control with such other Person OR (d) any executive officer,
director, partner or member of such Person.
9.1.7. "AGENT" means Signet Bank, or any successor thereof, or any
assignee, or other transferee or Agent hereunder.
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9.1.8. "AGREEMENT" means this Credit Facility Agreement and all the
exhibits and schedules hereto, all as may be amended and otherwise modified
from time to time hereafter.
9.1.9. "AUTHORIZED OFFICER" means any officer, employee or
representative of such organization who is expressly designated as such or is
otherwise authorized to borrow funds hereunder or, as appropriate, to sign
loan documents and/or deliver certificates on behalf of such organization
pursuant to the provisions of such organization's most recent resolution on
file with Administrative Agent.
9.1.10. "AUTHORIZATION" means any License or other governmental
permit, certificate and/or approval issued by an Official Body that is
necessary or required in connection with the conduct of any Borrower's
business or operations.
9.1.11. "AVAILABLE CREDIT PORTION" means that portion of the
Current Line of Credit Commitment that is generally available in the ordinary
course for borrowing at any time under the Line of Credit Facility, as such
amount is determined in accordance with Section 1.3 hereof.
9.1.12. "BORROWER" means, individually and collectively, the
following:
a. CCC Information Services Inc., a Delaware corporation,
having its principal and chief executive office at the
address specified in Section 10.7 hereof, or any successor
or authorized assignee thereof, AND
b. Any other entity subsequently added hereto as a Borrower
hereunder, or any successor or authorized assignee thereof.
9.1.13. "BUSINESS DAY" means any day that is not a Saturday, a
Sunday or a day on which banks under the laws of the Commonwealth of Virginia
(or, with respect to certain LIBO Rate matters, banks in London, England) are
authorized or required to be closed.
9.1.14. "CAPITAL EXPENDITURES" means expenditures (a) for any fixed
assets or improvements, replacements, substitutions or additions thereto that
have a useful life of more than one (1) year and an individual cost in excess
of $1,000 per item, including direct or indirect acquisition of such assets,
OR (b) for any Capital Leases. NOTWITHSTANDING THE FOREGOING, the term
Capital Expenditures does not include (1) purchases of Customer Equipment, OR
(2) Permitted Investments (as defined in Section 5.7 hereof) other than as
described in Section 5.7(d) hereof unless such Borrower is acquiring 100% of
the assets of another Person as a going concern, OR (3) permitted
transactions under Section 5.8 hereof.
9.1.15. "CAPITAL LEASES" means capital leases and subleases as
defined in the Financial Accounting Standards Board Statement of Financial
Accounting Standards No. 13 dated November 1976 (as amended and updated from
time to time).
9.1.16. "CLOSING DATE" means the date on which all conditions
precedent to the effectiveness of this Agreement under Section 2.1 hereof
have been satisfied or waived by Required Lenders.
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9.1.17. "CODE" means the Internal Revenue Code of 1986, as amended.
9.1.18. "COLLATERAL" means the collateral security committed to
Lenders or Administrative Agent (for the benefit of Lenders) under the
Collateral Security Documents executed by any Borrower or any other Obligor
in favor of Lenders or Administrative Agent (for the benefit of Lenders)
pursuant to this Agreement from time to time and/or pursuant to all similar
or related documents and agreements from time to time, all as amended from
time to time.
9.1.19. "COLLATERAL SECURITY DOCUMENTS" means, individually and
collectively, (a) the Security Agreements and the financing statements filed
pursuant thereto, AND (b) the Pledge and Security Agreements, AND (c) any
additional documents guaranteeing indebtedness, assuring performance of
obligations, subordinating indebtedness, or granting security or Collateral
to Lenders or Administrative Agent (for the benefit of Lenders), all as
amended from time to time.
9.1.20. "COMMITMENT" means any commitment for credit pursuant to a
Facility established hereunder.
9.1.21. "COMMITMENT PERCENTAGE" means, with respect to each Lender,
that portion of the total Commitments as to which such Lender is obligated
(I.E., the aggregate of such Lender's Line of Credit Commitment Percentage
and Term Loan Commitment Percentage).
9.1.22. "CREDIT COMMITMENT FEE" means the fee due and payable to
Administrative Agent in accordance with Section 1.7.1 hereof.
9.1.23. "CUSTOMER EQUIPMENT" means computers and related peripheral
equipment that either are purchased or leased by a Borrower for use by its
customers or are leased directly to such Borrower's customers.
9.1.24. "DEFAULT" means any event or circumstance that with the
giving of notice or the passage of time would constitute an Event of Default.
9.1.25. "DOLLAR" or "$" means U.S. dollars.
9.1.26. "EBITDA" means, at the time of any determination, the sum
of the following items for Borrowers during the relevant four consecutive
fiscal quarter period:
a. Net income from continuing operations during such period
-- I.E., excluding extraordinary items and the
cumulative effect of accounting changes -- determined in
accordance with GAAP, AND
b. PLUS Interest Expense during such period, BUT SUBTRACT
interest income accrued during such period, AND
c. PLUS all charges in accordance with GAAP for federal and
state income taxes during such period, AND
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d. PLUS depreciation permitted under GAAP during such
period, AND
e. PLUS amortization expense permitted under GAAP during
such period.
For purposes of this calculation, interest shall include interest accrued
under Capital Leases, determined in accordance with GAAP.
9.1.27. "ENVIRONMENTAL CONTROL STATUTES" has the meaning set forth
in Section 3.16 hereof.
9.1.28. "EPA" means the United States Environmental Protection
Agency or any other entity that succeeds to its responsibilities and powers.
9.1.29. "ERISA" means the Employee Retirement Income Security Act
of 1974, as amended, and as implemented and interpreted.
9.1.30. "ERISA AFFILIATE" means any company, whether or not
incorporated, which is considered a single employer with any Borrower under
Titles I, II and IV of ERISA.
9.1.31. "EVENT OF DEFAULT" means each of the events described in
Section 7.1 hereof.
9.1.32. "EXCLUDED ASSETS" means Customer Equipment and permissible
Capital Leases.
9.1.33. "FACILITY" means any credit facility established under
Article 1 hereof.
9.1.34. "FIXED CHARGES" means, at the time of any determination,
the sum of the following items for Borrowers during the relevant four
consecutive fiscal quarter period:
a. The amount of payments of principal required under this
Agreement during such period, AND
b. PLUS the amount of principal required to be paid and
mandatory commitment reductions on other Funded Debt
(I.E., Funded Debt other than under this Agreement)
during such period (BUT excluding payments on
indebtedness being refinanced hereunder as of the
Closing Date), AND
c. PLUS Interest Expense during such period, AND
d. PLUS the amount of Capital Expenditures during such
period.
For purposes of this calculation, interest includes interest accrued under
Capital Leases, and principal includes principal obligations under Capital
Leases. For purposes of this calculation,
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Xxxxxxx Xxxxxxxxxxxx (a) will include all capitalized software costs, but
(b) will exclude Customer Equipment and $900,000 in leasehold improvements to
be incurred prior to December 31, 1997.
9.1.35. "FRB" means the Board of Governors of the Federal Reserve
System or any other entity or agency that succeeds to its responsibilities
and powers.
9.1.36. "FUNDED DEBT" means, at the time of any determination, the
aggregate principal amount of indebtedness of all Borrowers for the following:
a. Borrowed money (including the indebtedness under the
Loan Documents, but not including trade indebtedness
incurred in the normal and ordinary course of business
for value received), AND
b. Installment purchases of real or personal property, AND
c. Capital Leases, AND
d. Deferred purchase price in connection with acquisitions,
AND
e. Guaranties, AND
f. Indebtedness otherwise required to be included as part
of "Funded Debt" under Section 5.2 hereof (including,
without limitation, monetary obligations under
non-compete arrangements).
NOTWITHSTANDING THE FOREGOING, the term "Funded Debt" includes the
Subordinated Indebtedness. For purposes of this calculation, Funded Debt
shall also include the Funded Debt of joint ventures that are consolidated
with Borrowers for financial reporting purposes in accordance with GAAP.
9.1.37. "GAAP" means generally accepted accounting principles
applied on a consistent basis set forth in the Opinions of the Accounting
Principles Board of the American Institute of Certified Public Accountants
and/or in statements of the Financial Accounting Standards Board and/or in
such other statements by such other entity as Administrative Agent may
reasonably approve, which are applicable in the circumstances as of the date
in question, and the requirement that such principles be applied on a
consistent basis shall mean that the accounting principles observed in a
current period are comparable in all material respects to those applied in a
preceding period.
9.1.38. "GUARANTOR" means CCC Information Services Group Inc., and
its successors and assigns (including, with respect to natural persons, such
Guarantor's heirs, personal representatives, administrators and executors).
9.1.39. "HAZARDOUS MATERIALS" includes (a) any "hazardous waste" as
defined by the Resource Conservation and Recovery Act of 1976 (42 U.S.C.
Section 6901 ET SEQ.), as amended from time to time, and regulations
promulgated thereunder; OR (b) any "hazardous substance" as
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defined by the Comprehensive Environmental Response, Compensation and
Liability Act of 1980 (42 U.S.C. Section 9601 ET SEQ.), as amended from time
to time, and regulations promulgated thereunder; OR (c) any other substance
the use or presence of which on, in, under or above any real property ever
owned, controlled or used by any Borrower is similarly regulated or prohibited
by any federal, state or local law, rule, ordinance, regulation or decree of
any court or governmental authority as a hazardous material.
9.1.40. "INTEREST EXPENSE" means, at the time of any determination,
the amount of interest and other finance charges of Borrowers required to be
charged as an expense under GAAP during the relevant four consecutive fiscal
quarter period. For purposes of this calculation, interest (a) includes
interest accrued under Capital Leases, BUT (b) excludes the amortization of
the fees under Section 1.7.1 hereof, AND any other such charges with respect
to any Funded Debt that are associated with capitalized debt, AND bank
service charges.
9.1.41. "INTEREST PERIOD" means (a) with respect to the Prime Rate,
a period of one (1) Business Day, AND (b) with respect to the Adjusted LIBO
Rate, a period (at the election of Borrowers) of 3 or 6 calendar months
duration; PROVIDED, HOWEVER, that with respect to the Adjusted LIBO Rate, (1)
if any Interest Period would otherwise end on a day that is not a Business
Day or Business Day in London, such Interest Period will be extended to the
next succeeding Business Day or Business Day in London, subject to clauses
(2) and (3) below; AND (2) any Interest Period that would otherwise end on a
day that is not a Business Day and a Business Day in London will be extended
to the next succeeding day that is a Business Day and a Business Day in
London unless such Business Day falls in another calendar month, in which
case such Interest Period will end on the next preceding Business Day in
London; AND (3) with respect to an Interest Period that begins on the last
Business Day in London of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such
Interest Period), subject to clause "(2)" above, the Interest Period will end
on the last Business Day in London of a calendar month. With respect to the
Adjusted LIBO Rate and the Prime Rate, interest will accrue from and
including the first day of each Interest Period to, but excluding, the day on
which any Interest Period expires.
9.1.42. "LENDER" means, individually and collectively, the following:
a. Signet Bank or any successor, assignee, participant or
other transferee of such Lender hereunder, AND
b. Any other entity subsequently added hereto as a Lender
hereunder, or any successor, assignee, participant or
other transferee thereof.
9.1.43. "LEVERAGE RATIO" means, at any time such ratio is being
computed, the ratio of "Funded Debt" TO "OCF (I.E., Operating Cash Flow)"
(for the immediately preceding four fiscal quarters).
9.1.44. "LIBO RATE" has the meaning set forth in the definition of
"Adjusted LIBO Rate".
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9.1.45. "LICENSE" means any authorization, construction or other
permit, consent, franchise, ordinance, registration, certificate, license,
call sign, frequency designation, agreement or other right filed with, granted
by, issued by or entered into with any Official Body.
9.1.46. "LIEN" means any security interest, mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory
or otherwise), reversionary or reclamation interest, charge against or
interest in property to secure payment of a debt or performance of an
obligation or other priority or preferential arrangement of any kind or
nature whatsoever.
9.1.47. "LINE OF CREDIT COMMITMENT" means the Commitment established
pursuant to Section 1.1. hereof and Section 1.3 hereof.
9.1.48. "LINE OF CREDIT COMMITMENT PERCENTAGE" means, with respect
to each Lender, that portion of the total Line of Credit Commitment as to
which such Lender is obligated.
9.1.49. "LINE OF CREDIT FACILITY" means the line of credit Facility
as described in Article 1 hereof.
9.1.50. "LINE OF CREDIT MATURITY DATE" has the meaning set forth in
Section 1.1.2 hereof, as may be extended from time to time in Lenders' sole
and absolute discretion.
9.1.51. "LINE OF CREDIT NOTE" means that certain Note (or Notes)
payable to the order of each Lender (for its Line of Credit Commitment
Percentage) prepared in accordance with Section 1.1.4 hereof, as may be
amended, modified, restated, replaced, supplemented, extended or renewed from
time to time hereafter.
9.1.52. "LOAN" means any loan or Advance of funds under any Facility
as well as any other credit extended by Administrative Agent or any Lender
to any Borrower under this Agreement.
9.1.53. "LOAN DOCUMENTS" means this Agreement, any Notes, the
Collateral Security Documents and any other documents, agreements and
certificates entered into or delivered in connection herewith or therewith or
pursuant hereto or thereto, all as may be amended, modified and supplemented
from time to time.
9.1.54. "LOCAL AUTHORITIES" means, individually and collectively,
the state and local governmental authorities that govern the activities of
any Borrower.
9.1.55. "MARGIN REGULATION" has the meaning set forth in Section
3.17 hereof.
9.1.56. "MARGIN STOCK" has the meaning set forth in Section 3.17
hereof.
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9.1.57. "MATERIAL ADVERSE CHANGE" means any change that has or causes
a Material Adverse Effect.
9.1.58. "MATERIAL ADVERSE EFFECT" means, relative to any occurrence
of whatever nature (including, without limitation, any adverse determination
in any litigation, arbitration or governmental investigation or proceeding),
a material adverse change to, or, as the case may be, a materially adverse
effect on:
a. The business, assets, revenues, financial condition,
operations, or Collateral of CCC or of Borrowers (as a
whole, including CCC) or of any other Obligor (other
than a Borrower); or
b. The ability of Borrowers to perform any of their
payment obligations under the Loan Documents when due
or the ability of any Borrower to perform any other
material obligations under any Loan Document; or
c. Any right, remedy or benefit of Administrative Agent
or any Lender under any Loan Document in any way
relating to (i) Administrative Agent's or any Lender's
ability or collect or entitlement to receive (or be
reimbursed for) payments of principal, interest, fees,
costs or expenses under the Loan Documents or (ii)
Administrative Agent's or any Lender's protection of,
realization upon or other rights or interest in any
Collateral.
9.1.59. "NOTES" means, individually and collectively, each promissory
note delivered to Administrative Agent or any Lender pursuant to any Loan
Document and evidencing any indebtedness to Administrative Agent or any
Lender under the Loan Documents (each as may be amended, modified,
supplemented, restated, extended, renewed or replaced from time to time).
9.1.60. "OBLIGATIONS" means all of the indebtedness and obligations
(monetary or otherwise) of each Borrower and any other Obligor arising under
or in connection with any Loan Document as well as all indebtedness and
obligations (monetary or otherwise) of any Affiliate of any Borrower or
other Obligor arising under or in connection with any agreement between any
such Affiliate and Administrative Agent or any Lender (or any Affiliate of
Administrative Agent or any Lender).
9.1.61. "OBLIGOR" means any Borrower or any other Person (other than
Administrative Agent and Lenders) obligated under any Loan Document.
9.1.62. "OCF" (or "Operating Cash Flow") means, at the time of any
determination, the sum of the following items for Borrowers during the
relevant four consecutive fiscal quarter period:
a. EBITDA during such a period, AND
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b. PLUS reasonable non-recurring acquisition expenses
acceptable to or approved by the Required Lenders during
such period (which acceptance or approval by such Lenders
may not be unreasonably withheld), AND
c. WITH RESPECT TO deferred revenues reflected on
Borrowers' balance sheet in accordance with GAAP (BUT
only to the extent that such deferred revenues
exceeded $10 million during the immediately preceding
reporting period): ADD the total amount by which deferred
revenues increased over the immediately preceding
reporting period, OR SUBTRACT the total amount by
which deferred revenues decreased from the immediately
preceding reporting period, AND
d. WITH RESPECT TO investments by Borrowers in non-
consolidated joint ventures that are reflected on
Borrowers' financial statements in accordance with
GAAP: ADD the amount of actual cash distributions
received by each Borrower as a return on its investment
in any such non-consolidated joint venture, AND
e. WITH RESPECT TO other non-recurring non-cash items: ADD
the total amount of other non-cash expenses recognized
during such period (to the extent not already accounted
for in one of the above categories), BUT SUBTRACT the
total amount of other non-cash revenue (other than
deferred revenue, which category is addressed under
Clause "c" above and other than revenue resulting from
normal trade receivables) recognized during such period
(to the extent not already accounted for in one of the
above categories).
For purposes of this calculation, interest shall include interest accrued
under Capital Leases, determined in accordance with GAAP. For purposes of
this calculation, OCF shall also include the OCF of joint ventures that are
consolidated with Borrowers for financial reporting purposes in accordance
with GAAP.
9.1.63. "OFFICIAL BODY" means any federal, state, local, or other
government of political subdivision (and any agency, authority, bureau,
central bank, commission, department or instrumentality of either) and any
court, tribunal, grand jury or arbitrator, in each case whether foreign or
domestic.
9.1.64. "OPERATING AGREEMENT" means any consulting agreement,
management agreement, employment agreement, cost allocation agreement, or
other similar agreement relating to the operations of any Borrower.
9.1.65. "ORGANIC DOCUMENT" means, relative to any entity, its
certificate and articles of incorporation or organization, its by-laws or
operating agreements, and all equityholder agreements, voting agreements and
similar arrangements applicable to any of its authorized shares of capital
stock, its partnership interests or its member interests, and any other
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arrangements relating to the control or management of any such entity
(whether existing as a corporation, a partnership, an LLC or otherwise).
9.1.66. "PBGC" means the Pension Benefits Guaranty Corporation or
any other entity that succeeds to its responsibilities and powers under ERISA.
9.1.67. "PERIODIC FACILITY FEE" means the fee due and payable to
Administrative Agent (for the benefit of Lenders) in accordance with Section
1.7.2 hereof.
9.1.68. "PERMITTED INDEBTEDNESS" has the meaning set forth in
Section 5.2 hereof.
9.1.69. "PERMITTED INVESTMENTS" has the meaning set forth in Section
5.7 hereof.
9.1.70. "PERMITTED LIENS" has the meaning set forth in Section 5.5
hereof.
9.1.71. "PERMITTED LOANS" has the meaning set forth in Section 5.4
hereof.
9.1.72. "PERMITTED TRANSFERS" has the meaning set forth in
Section 5.6 hereof.
9.1.73. "PERSON" means any natural person, corporation, LLC,
partnership, firm, association, trust, government, governmental agency or any
other entity, whether acting in an individual, fiduciary or other capacity.
9.1.74. "PLAN" means any pension benefit or welfare benefit plan as
defined in Sections 3(1), (2) or (3) of ERISA covering employees of any
Borrower or any ERISA Affiliate of any Borrower.
9.1.75. "PLEDGE AND SECURITY AGREEMENTS" means, individually and
collectively, each pledge and security agreement relating to a pledge of an
equity interest in an enterprise (all as may be amended, modified and
supplemented from time to time) required to be executed and delivered in
favor of Administrative Agent (for the benefit of Lenders) pursuant to the
Loan Documents.
9.1.76. "PORTION" means a designated portion of the indebtedness
hereunder as to which a specified Rate Index (and a corresponding Rate
Margin) has been selected or deemed to be applicable.
9.1.77. "PRIME RATE" means the rate of interest per annum publicly
announced by Administrative Agent form time to time as its prime rate of
interest on direct, short-term borrowings to its large business customers
with high credit standings; such term, however, does not necessarily mean
Administrative Agent's best or lowest rate available.
9.1.78. "PRO RATA" means from or to each Lender in proportion to its
Commitment Percentage.
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9.1.79. "RATE INDEX" has the meaning set forth in Section 1.1.5 hereof
(for purposes of the Line of Credit Facility) AND Section 1.2.5 hereof (for
purposes of the Term Loan Facility).
9.1.80. "RATE MARGIN" has the meaning set forth in Section 1.1.5 hereof
(for purposes of the Line of Credit Facility) AND Section 1.2.5 hereof (for
purposes of the Term Loan Facility).
9.1.81. "REQUIRED LENDER" means Lenders holding at least 66% of the
aggregate outstanding principal amount of the Loans (or, if no Loans at the
time of such determination are outstanding, then Lenders obligated with
respect to at least 66% of the Commitments).
9.1.82. "RESERVE PERCENTAGE" has the meaning set forth in the
definition of "Adjusted LIBO Rate".
9.1.83. "SEC" means the Securities and Exchange Commission or any
other entity that succeeds to its responsibilities and powers.
9.1.84. "SECURITIES ACTS" means, collectively, the Securities Act of
1933 and the Securities Exchange Act of 1934, each as amended, and as
implemented by the SEC and interpreted by the SEC or any court of competent
jurisdiction.
9.1.85. "SECURITY AGREEMENTS" means, collectively, each security
agreement (as may be amended, modified and supplemented from time to time)
required to be executed and delivered in favor of Administrative Agent (for
the benefit of Lenders) pursuant to Article 2 hereof, and any other security
agreement required or delivered in connection with the Loan Documents,
including, without limitation, any intellectual property assignments or
security agreements required to be delivered pursuant to Article 2 hereof.
9.1.86. "SETTLEMENT DATE" means, with respect to any Advance
hereunder, the date on which funds are advanced by Administrative Agent (on
behalf of Lenders).
9.1.87. "SIGNET BANK" means Signet Bank, a Virginia-chartered,
federally insured commercial bank, or any successor thereof, having an office
at the address specified in Section 10.7 hereof, and which is the
Administrative Agent and a Lender hereunder at the time of execution hereof.
9.1.88. "SUBORDINATED INDEBTEDNESS" means all indebtedness and
monetary obligations of Borrowers (other than indebtedness in favor of
Lenders or indebtedness and obligations expressly excluded therefrom by the
Required Lenders), including, without limitation, all indebtedness treated or
defined as "Subordinated Indebtedness" under any separate Subordination
Agreement by and among any Borrower, Administrative Agent (on behalf of
Lenders) and another Person. NOTWITHSTANDING THE FOREGOING, the term
"Subordinated Indebtedness" (unless the Required Lenders otherwise requires)
does not include indebtedness permitted under Section 5.2(a or b) hereof or
(to the extent consistent with Section 5.5.a hereof) under Section 5.2(c, d
or e) hereof. The term "Subordinated Indebtedness" also does not include
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CCC's contract funding or indebtedness to Canadian Imperial Bank of Commerce
as listed on Schedule 5.2 hereto that existed as of the Closing Date.
9.1.89. "SUBSIDIARY" of any Person or entity means any Person as to
which such other Person or entity (a) directly or indirectly owns, controls
or holds 25% or more of the outstanding beneficial interest OR (b) is
otherwise required in accordance with GAAP to be considered as part of a
consolidated organization.
9.1.90. "TERM LOAN COMMITMENT" means the Commitment established
pursuant to Section 1.2 hereof and Section 1.3 hereof.
9.1.91. "TERM LOAN COMMITMENT PERCENTAGE" means, with respect to each
Lender, that portion of the total Term Loan Commitment as to which such
Lender is obligated.
9.1.92. "TERM LOAN FACILITY" means the term loan Facility as described
in Article 1 hereof.
9.1.93. "TERM LOAN MATURITY DATE" has the meaning set forth in Section
1.2.2 hereof, as may be extended from time to time in Lenders' sole and
absolute discretion.
9.1.94. "TERM LOAN NOTE" means that certain Note (or Notes) payable to
the order of each Lender (for its Line of Credit Commitment Percentage)
prepared in accordance with Section 1.2.4 hereof, as may be amended,
modified, restated, replaced, supplemented, extended or renewed from time to
time hereafter.
9.1.95. "TOTAL CHARGES" means, at the time of any determination, the
sum of the following items for Borrowers during the relevant four consecutive
fiscal quarter period:
a. The amount of Fixed Charges during such period, AND
b. PLUS the net amount of federal and state income taxes
paid during such period, AND
c. PLUS investments under Section 5.7(e) hereof and dividends
under Section 5.10 hereof (other than Redemption Dividends
thereunder) during such period.
For purposes of this calculation, interest includes interest accrued under
Capital Leases, and principal includes principal obligations under Capital
Leases. For purposes of this calculation, Total Charges shall also include
the Total Charges of joint ventures that are consolidated with Borrowers for
financial reporting purposes in accordance with GAAP.
9.1.96. "TOTAL CHARGE COVERAGE RATIO" means, at any time such ratio is
being computed, the ratio of "OCF" (for the immediately preceding four fiscal
quarters) TO "Total Charges" (for the immediately preceding four fiscal
quarters).
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9.1.97. "UCC" means the Uniform Commercial Code as in effect in the
applicable jurisdiction.
9.2. RULES OF CONSTRUCTION.
9.2.1. PLURAL; GENDER. Whenever used herein, (a) a singular number
includes the plural, and the plural includes the singular, AND (b) use of the
masculine, feminine or neuter gender includes all genders.
9.2.2. FINANCIAL AND ACCOUNTING TERMS. Except as otherwise provided
herein, financial and accounting terms used in the foregoing definitions or
elsewhere in this Agreement shall be defined in accordance with GAAP.
ARTICLE 10: MISCELLANEOUS
10.1. INDEMNIFICATION, RELIANCE AND ASSUMPTION OF RISK PROVISIONS. Without
limiting any other indemnification in any Loan Document, each Borrower
(jointly and severally) hereby agrees to defend Administrative Agent and each
Lender (and the directors, officers, employees, agents and Affiliates
Administrative Agent and each Lender) from, and hold each of them harmless
against, any and all losses, liabilities, claims, damages, interests,
judgments, costs, or expenses (including without limitation, reasonable fees
and disbursements of counsel) incurred by any of them arising out of or in
any way connected with any Loan Document, EXCEPT for losses resulting
directly and exclusively from such Person's own gross negligence, willful
misconduct or fraud. In addition, each Borrower (jointly and severally) will
reimburse and indemnify Administrative Agent and each Lender for all
reasonable costs, expenses and losses resulting from the following: (1) any
failure or refusal by any Borrower or by any Affiliate of any Borrower to
provide any requested assistance or cooperation in connection with any
attempt by Administrative Agent or any Lender to liquidate any Collateral in
the event of any Event of Default and/or any attempt by Administrative Agent
or any Lender to otherwise exercise its rights hereunder, AND (2) any
misrepresentation, gross negligence, fraud or willful misconduct by any
Borrower (or any of its employees or officers), or any other person or entity
pledging Collateral hereunder. Moreover, with respect to any Advance Request
or other communication between any Borrower and Administrative Agent or
Lenders hereunder and all other matters and transactions in connection
therewith, each Borrower (jointly and severally) hereby irrevocably
authorizes Administrative Agent and each Lender to accept, rely upon, act
upon and comply with any verbal or written instructions, requests,
confirmations and orders of any Authorized Officer of any Borrower. Each
Borrower, Administrative Agent and each Lender each acknowledges that the
transmissions of any such instruction, request, confirmation, order or other
communication involves the possibility of errors, omissions, mistakes and
discrepancies, and each Borrower, Administrative Agent and each Lender each
agrees to adopt such internal measures and operational procedures to protect
its interest. By reason thereof, each Borrower hereby assumes all risk of
loss and responsibility for -- and hereby releases and discharges
Administrative Agent and each Lender from any and all risk of loss and
responsibility for, and agrees to indemnify, reimburse on demand and hold
Administrative Agent and each Lender harmless from -- any and all claims,
actions, damages, losses, liability and expenses by reason
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of or in any way related to (a) Administrative Agent's or any Lender's
accepting, relying and acting upon, complying with or observing any such
instructions, requests, confirmations or orders from or on behalf of any such
Authorized Officer, and (b) any such errors, omissions, mistakes and
discrepancies by (or otherwise resulting from or attributable to the actions
or inactions of) any Authorized Officer or any Borrower; PROVIDED, HOWEVER,
no Borrower has assumed hereby the risk of any foreseeable actual loss
resulting directly and exclusively from Administrative Agent's or any
Lender's own gross negligence, fraud or willful misconduct. Each Borrower's
obligations provided for in this Section 10.1 will survive any termination of
this Agreement, and the repayment of the outstanding balances hereunder.
10.2. ASSIGNMENT; DISCLOSURE OF INFORMATION TO THIRD PARTIES.
10.2.1. ASSIGNMENTS. No Loan Document may be assigned (in whole or
in part) by any Borrower without the prior written consent of Lenders.
Notwithstanding any other provision of any Loan Document, without receiving
any consent of any Borrower, each Lender at any time and from time to time may
syndicate, participate or otherwise transfer or assign its rights and
obligations under the Loan Documents (or the indebtedness evidenced thereby)
as follows: (a) up to 75% of its rights and obligations under any of the Loan
Documents (or any of the indebtedness evidenced thereby) to any Person
provided that the number of Lenders hereunder does not exceed three, AND (b)
all (or any proportionate part of) its rights and obligations under any of the
Loan Documents (or any of the indebtedness evidenced thereby) to any Affiliate
of such Lender, AND (c) all (or any proportionate part of) its rights and
obligations under any of the Loan Documents (or any of the indebtedness
evidenced thereby) to any Person during the occurrence of any Event of Default
under the Loan Documents. In addition, no Borrower will unreasonably withhold
its consent to any request by any Lender to syndicate, participate or
otherwise transfer or assign all or any portion of its interest in excess of
75%. Administrative Agent will make reasonable efforts to notify Borrowers of
any such participation, transfer or assignment within twenty (20) Business
Days thereafter; however, a failure to so notify will in no way impair any
rights of Administrative Agent or any Lender or any participant, transferee or
assignee thereof. Upon execution and delivery of an appropriate instrument
between any such participant, transferee or assignee and such assigning
Lender, at such Lender's request, such participant, transferee, or assignee
will become a Lender party to this Agreement and will have all the rights and
obligations of a Lender as set forth in such instrument. At Administrative
Agent's request, each Borrower will execute or re-execute and deliver any
documents necessary to reflect or implement any such participation, transfer
or assignment and will otherwise fully cooperate in any such syndication
process.
10.2.2. DISCLOSURE OF INFORMATION. Administrative Agent and each
Lender will employ reasonable procedures to treat as confidential all
written, non-public information delivered to Administrative Agent or such
Lender (as applicable) pursuant to this Agreement concerning the property,
operations and performance of Borrowers that is conspicuously designated by
Borrowers as confidential information. With respect to any employee of
Administrative Agent or any Lender, such procedures will be at least as
protective of such confidential information of Borrowers as those established
procedures of Administrative Agent or such Lender (respectively) applicable
to and known by such employee for protecting Administrative Agent's or such
Lender's own confidential information. NOTWITHSTANDING THE
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FOREGOING, Administrative Agent and each Lender may furnish or disclose any
information concerning any Borrower (or any of its properties or operations)
in Administrative Agent's or such Lender's possession from time to time (1) to
permitted participants, transferees and assignees (including prospective
participants, transferees and assignees), but subject to a reasonable
confidentiality agreement regarding any non-public confidential information
thereby disclosed, AND (2) in response to credit inquiries consistent with
general banking practices. In addition, Administrative Agent and each Lender
may also furnish or disclose any such information (a) to any federal or state
regulator of Administrative Agent or such Lender, AND (b) to Administrative
Agent's or such Lender's Affiliates, employees, legal counsel, appraisers,
accountants and agents, AND (c) to any Person pursuant to compulsory judicial
process, AND (d) to any judicial or arbitration forum in connection with
enforcing the Loan Documents or defending an action based upon the Loan
Documents, AND (e) to any other Person with respect to the public or
non-confidential information. Administrative Agent and each Lender may also
include operational and performance information and data relating to any
Borrower in compilations, reports and data bases assembled by Administrative
Agent or such Lender (or Affiliates of Administrative Agent or such Lender)
and used to conduct, support, assist in and validate portfolio, industry and
credit analysis; PROVIDED, HOWEVER, that neither Administrative Agent nor
any Lender may thereby disclose to other Persons any information relating to
any Borrower in a manner that is attributable to such Borrower UNLESS (1)
such disclosure is permitted under the standards outlined above in this
Section OR (2) such Borrower otherwise consents thereto (which consent may
not be unreasonably withheld).
10.3. BINDING EFFECT AND GOVERNING LAW. This Agreement and all documents
executed hereunder are binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns. This Agreement and all
documents executed hereunder are governed as to their validity,
interpretation, construction and effect by the laws of the Commonwealth of
Virginia (without giving effect to the conflicts of law rules of Virginia).
10.4. NO WAIVER; DELAY. To be effective, any waiver by Lenders must be
expressed in a writing executed by Administrative Agent with the approval of
the Required Lenders (OTHER THAN Defaults under Section 7.1.1. hereof
(payment-related Defaults) or Section 7.1.3. hereof (Financial Covenant
Defaults), which must be approved by each Lender). Once an Event of Default
occurs hereunder, such Event of Default will continue to exist until
expressly waived by Lenders (in their sole and absolute discretion). If
Administrative Agent or any Lender waives any power, right or remedy arising
hereunder or under any applicable law, THEN such waiver will not be deemed to
be a waiver (a) upon the later occurrence or recurrence of any events giving
rise to the earlier waiver OR (b) as to any other Obligor. No failure or
delay by Administrative Agent or any Lender to insist upon the strict
performance of any term, condition, covenant or agreement of any of the Loan
Documents, or to exercise any right, power or remedy hereunder, will
constitute a waiver of compliance with any such term, condition, covenant or
agreement, or preclude Administrative Agent or any Lender from exercising any
such right, power, or remedy at any later time or times. By accepting payment
after the due date of any amount payable under this Agreement or any other
Loan Document, neither Administrative Agent nor any Lender will be deemed to
waive the right either to require prompt payment when due of all other
amounts payable under this Agreement or any other Loan Document or to declare
an Event of Default for failure to effect such prompt payment of any such
other amount. The remedies
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provided herein are cumulative and not exclusive of each other, the remedies
provided by law, and the remedies provided by the other Loan Documents.
10.5. MODIFICATIONS AND AMENDMENTS. Except as otherwise expressly
provided in this Agreement, no modification or amendment to any Loan Document
will be effective unless made in a writing signed by appropriate officers of
Administrative Agent (with the consent of the Required Lenders) and each
Borrower that is a party to such Loan Document. NOTWITHSTANDING THE
FOREGOING, to the extent that any such modification or amendment attempts to
implement any of the following, THEN such amendment or modification must
approved by all Lenders:
a. Increase the Commitments or the Commitment Percentage of
any Lender, OR
b. Add any additional Rate Index, alter any threshold for any
Rate Margin category, reduce the amount of any Rate Margin,
or otherwise alter any provision that effectively reduces
that interest rate applicable to the Loans, OR
c. Reduce the amount of any fees due to Lenders under any Loan
Document (other than fees payable to the Administrative
Agent for its own account), OR
d. Reduce the amount of any payment (whether for principal,
interest or any fee, other than a fee payable to the
Administrative Agent for its own account), OR
e. Postpone or extend the Maturity Date for any Facility or
any scheduled payment date (whether for principal, interest
or any fee, other than a fee payable to the Administrative
Agent for its own account), OR
f. Modify the definition of "Pro Rata" or "Required Lenders"
or otherwise change the number or percentage of Lenders
that are required to take or approve (or direct the
Administrative Agent to take) any action under the Loan
Documents, OR
g. Modify the thresholds or time periods for any of the
Financial Covenants under Section 4.1 hereof or modify any
of the component definitions used in calculating such
Financial Covenants, OR
h. Release or discharge any Borrower as a "Borrower" under the
Loan Documents or permit any Borrower to assign to another
Person any of its rights or obligations under the Loan
Documents, OR
i. Release all or any part of any guaranty of any part of the
Indebtedness under the Loan Documents or any security
interest in or pledge of any Collateral (except as
otherwise already expressly authorized under the Loan
Documents), OR
j. Amend this Section.
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In addition, no provision of any Loan Document relating to the rights or
obligations of the Administrative Agent may be modified or amended without
the consent of the Administrative Agent.
10.6. HEADINGS. The various headings in this Agreement are inserted
for convenience only and shall not affect the meaning or interpretation of
this Agreement or any provision hereof.
10.7. NOTICES. Any notice, request, consent, waiver or other
communication required or permitted under or in connection with the Loan
Documents will be deemed satisfactorily given if it is in writing and is
delivered either personally to the addressee thereof, OR by prepaid
registered or certified U.S. mail (return receipt requested), OR by a
nationally recognized commercial courier service with next-day delivery
charges prepaid, OR by telegraph, OR by facsimile (voice confirmed), OR by
any other reasonable means of personal delivery to the party entitled thereto
at its respective address set forth below:
If to any Borrower [Party Entitled to Notice]
OR ITS AFFILIATES: c/o CCC Information Services Inc.
World Trade Center Chicago
000 Xxxxxxxxxxx Xxxx
Xxxxxxx, XX 00000
Attention: Treasurer
Facsimile: (000) 000-0000
With a Copy tO (which shall not constitute notice to
Borrowers):
Winston & Xxxxxx
00 X. Xxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxx, Esquire
Facsimile: (000) 000-0000
and
CCC Information Services Inc.
World Trade Center Chicago
000 Xxxxxxxxxxx Xxxx
Xxxxxxx, XX 00000
Attention: Legal Department
Facsimile: (000) 000-0000
If to Signet Bank
ADMINISTRATIVE AGENT: 0000 Xxxxxxxx Xxxx, Xxxxx 000
Xxxxx Xxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxx, Senior Vice President
Facsimile: (000) 000-0000
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With a Copy To (which shall not constitute notice to
Lender):
Xxxxxx X. Xxxxxxxxxx, Esquire
Xxxxx Xxxx LLP
000 00xx Xxxxxx, X.X., Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Facsimile: (000) 000-0000
IF TO ANY LENDER: Such Lender's address and facsimile set
forth on the signature pages hereof
Any party to a Loan Document may change its address or facsimile number for
notice purposes by giving notice thereof to the other parties to such Loan
Document in accordance with this Section, provided that such change shall not
be effective until 2 calendar days after notice of such change. All such
notices and other communications will be deemed given and effective (a) if by
mail, then upon actual receipt or 5 calendar days after mailing as provided
above (whichever is earlier), OR (b) if by facsimile, then upon successful
transmittal to such party's designated number, OR (c) if by telegraph, then
upon actual receipt or 2 Business Days after delivery to the telegraph
company (whichever is earlier), OR (d) if by nationally recognized commercial
courier service, then upon actual receipt or 2 Business Days after delivery
to the courier service (whichever is earlier), OR if otherwise delivered,
then upon actual receipt. For any and all purposes related to giving and
receiving notices and communications between any Borrower and Administrative
Agent or any Lender under any Loan Document, each Borrower hereby irrevocably
appoints CCC's President as its agent to whom Administrative Agent and
Lenders may give and from whom Administrative Agent and Lenders may receive
all such notices and communications.
10.8. TIME OF DAY. All time of day restrictions imposed herein shall be
calculated using Eastern Time.
10.9. RELATIONSHIP WITH PRIOR AGREEMENTS. This Agreement completely
and fully supersedes all oral agreements and all other and prior written
agreements by and between any Borrower, Administrative Agent and any Lender
concerning the terms and conditions of this credit arrangement (other than the
Fee Agreement).
10.10. SEVERABILITY. If fulfillment of any provision of or any
transaction related to any Loan Document at the time performance is due
involves transcending the limit of validity prescribed by applicable law,
then IPSO FACTO, the obligation to be fulfilled shall be reduced to the limit
of such validity. If any clause or provision of this Agreement operates or
would prospectively operate to invalidate this Agreement in whole or in part,
THEN such clause or provision only shall be void (as though not contained
herein), and the remainder of this Agreement shall remain operative and in
full force and effect; PROVIDED, HOWEVER, if any such clause or provision
pertains to the repayment of any indebtedness hereunder, THEN the occurrence
of any such invalidity shall constitute an immediate Event of Default
hereunder.
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10.11. TERMINATION AND SURVIVAL. All agreements, representations,
warranties and covenants of any Borrower contained herein or in any
documentation required hereunder will survive the execution and delivery of
this Agreement and the other Loan Documents and the funding of the Advances
hereunder and will continue in full force and effect until terminated in
accordance with this Section. Except as otherwise provided in Section 4.13
hereof and Section 10.1 hereof, this Agreement will terminate upon
satisfaction of each of the following events: (i) payment to Administrative
Agent and each Lender in full (unconditionally and indefeasibly) of the
entire indebtedness and monetary obligations due hereunder and under the
other Loan Documents, AND (ii) the termination of the Facilities hereunder,
AND (iii) return and cancellation of any effective letters of credit issued
by Administrative Agent or any Lender for the account of any Borrower (or
delivery to Administrative Agent of cash or readily marketable collateral in
an amount and subject to a pledge agreement that are acceptable to
Administrative Agent in its sole and absolute discretion). This Agreement
(and Administrative Agent's and each Lender's obligations hereunder) will
also terminate if the conditions precedent under Section 2.2 hereof are not
satisfied or waived by Lenders on or before October 31, 1996.
10.12. REINSTATEMENT. To the maximum extent not prohibited by
applicable law, this Agreement (and the indebtedness hereunder and Collateral
therefor) will be reinstated and correspondingly increased if at any time any
amount received by Administrative Agent or any Lender in respect of any Loan
Document is rescinded or must otherwise be restored or returned by
Administrative Agent or such Lender to any Person upon the insolvency,
bankruptcy, dissolution, liquidation or reorganization of any Borrower or any
other Person or upon the appointment of any receiver, intervenor,
conservator, trustee or similar official for any Borrower or other Person or
for any substantial part of the assets of any Borrower or any other Person,
or otherwise, all as though such payments had not been made.
10.13. COUNTERPARTS. This Agreement may be executed in any number of
counterparts with the same effect as if all the signatures on such
counterparts appeared on one document. Each such counterpart will be deemed
to be an original but all counterparts together will constitute one and the
same instrument.
10.14. CONFLICT PROVISION. In the event of an irreconcilable conflict
between the terms and conditions of this Agreement and the terms and
conditions of any other Loan Document (other than a Note or any warrant
issued to Administrative Agent or any Lender), the terms and conditions of
this Agreement shall govern.
10.15. WAIVER OF SURETYSHIP DEFENSES. Each Borrower hereby waives any
and all defenses and rights of discharge based upon suretyship or impairment
of collateral (including, without limitation, lack of attachment or
perfection with respect thereto) that it may now have or may hereafter
acquire with respect to Administrative Agent or any Lender or any of its
obligations hereunder, under any Loan Document or under any other agreement
that it may have or may hereafter enter into with Administrative Agent or any
Lender.
10.16. WAIVER OF LIABILITY. EACH BORROWER (a) AGREES THAT NEITHER
ADMINISTRATIVE AGENT NOR ANY LENDER (NOR ANY DIRECTORS, OFFICERS, EMPLOYEES
AND AGENTS OF ADMINISTRATIVE AGENT OR ANY LENDER) SHALL HAVE ANY LIABILITY TO
ANY BORROWER (WHETHER SOUNDING IN TORT,
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CONTRACT OR OTHERWISE) FOR LOSSES OR COSTS SUFFERED OR INCURRED BY ANY
BORROWER IN CONNECTION WITH OR IN ANY WAY RELATED TO THE TRANSACTIONS
CONTEMPLATED OR THE RELATIONSHIP ESTABLISHED BY ANY LOAN DOCUMENT, OR ANY
ACT, OMISSION OR EVENT OCCURRING IN CONNECTION HEREWITH OR THEREWITH, EXCEPT
FOR FORESEEABLE ACTUAL LOSSES RESULTING DIRECTLY AND EXCLUSIVELY FROM
ADMINISTRATIVE AGENT'S OR SUCH LENDER'S OWN GROSS NEGLIGENCE, WILLFUL
MISCONDUCT OR FRAUD AND (b) WAIVES, RELEASES AND AGREES NOT TO XXX UPON ANY
CLAIM AGAINST ADMINISTRATIVE AGENT OR ANY LENDER (OR THEIR DIRECTORS,
OFFICERS, EMPLOYEES OR AGENTS) WHETHER SOUNDING IN TORT, CONTRACT OR
OTHERWISE, EXCEPT FOR CLAIMS FOR FORESEEABLE ACTUAL LOSSES RESULTING DIRECTLY
AND EXCLUSIVELY FROM ADMINISTRATIVE AGENT'S OR SUCH LENDER'S OWN GROSS
NEGLIGENCE, WILLFUL MISCONDUCT OR FRAUD. MOREOVER, WHETHER OR NOT SUCH
DAMAGES ARE RELATED TO A CLAIM THAT IS SUBJECT TO THE WAIVER EFFECTED ABOVE
AND WHETHER OR NOT SUCH WAIVER IS EFFECTIVE, UNLESS ADMINISTRATIVE AGENT OR
ANY LENDER IS ADJUDGED TO BE GUILTY OF CRIMINAL CONDUCT THAT CAUSED SUCH
DAMAGES, THEN NEITHER ADMINISTRATIVE AGENT NOR ANY LENDER (NOR ANY DIRECTORS,
OFFICERS, EMPLOYEES AND AGENTS OF ADMINISTRATIVE AGENT OR ANY LENDER) SHALL
HAVE ANY LIABILITY WITH RESPECT TO (AND EACH BORROWER HEREBY WAIVES, RELEASES
AND AGREES NOT TO XXX UPON ANY CLAIM FOR) ANY SPECIAL, INDIRECT,
CONSEQUENTIAL, PUNITIVE OR NON-FORESEEABLE DAMAGES SUFFERED BY ANY BORROWER
IN CONNECTION WITH OR IN ANY WAY RELATED TO THE TRANSACTIONS CONTEMPLATED OR
THE RELATIONSHIP ESTABLISHED BY ANY LOAN DOCUMENT, OR ANY ACT, OMISSION OR
EVENT OCCURRING IN CONNECTION HEREWITH OR THEREWITH; AND IF ADMINISTRATIVE
AGENT OR ANY LENDER IS ADJUDGED TO BE GUILTY OF SUCH CRIMINAL CONDUCT, THEN
EACH BORROWER WILL BE ENTITLED TO THE TYPES OF COMPENSATION (INCLUDING, AS
APPLICABLE AND APPROPRIATE, SPECIAL, INDIRECT, CONSEQUENTIAL, PUNITIVE OR
NON-FORESEEABLE DAMAGES) AS AND TO THE EXTENT AVAILABLE UNDER APPLICABLE LAW.
10.17. FORUM SELECTION; CONSENT TO JURISDICTION. ANY LITIGATION IN
CONNECTION WITH OR IN ANY WAY RELATED TO ANY LOAN DOCUMENT, OR ANY COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN), ACTIONS
OR INACTIONS OF ADMINISTRATIVE AGENT OR ANY LENDER OR ANY BORROWER WILL BE
BROUGHT AND MAINTAINED EXCLUSIVELY IN THE COURTS OF THE COMMONWEALTH OF
VIRGINIA OR IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF
VIRGINIA; PROVIDED, HOWEVER, THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY
BORROWER, ANY COLLATERAL OR ANY OTHER PROPERTY MAY ALSO BE BROUGHT (AT
ADMINISTRATIVE AGENT'S OR SUCH LENDER'S OPTION) IN THE COURTS OF ANY OTHER
JURISDICTION WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND OR WHERE
ADMINISTRATIVE AGENT OR SUCH LENDER MAY OTHERWISE OBTAIN PERSONAL
JURISDICTION OVER ANY BORROWER. EACH BORROWER HEREBY EXPRESSLY AND
IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS OF THE COMMONWEALTH OF
VIRGINIA AND OF THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF
VIRGINIA FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE AND
IRREVOCABLY AGREES TO BE BOUND BY ANY FINAL AND NON-APPEALABLE JUDGMENT
RENDERED THEREBY IN CONNECTION WITH SUCH LITIGATION. EACH BORROWER FURTHER
IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED OR CERTIFIED
MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE WITHIN OR OUTSIDE THE
COMMONWEALTH OF VIRGINIA. EACH BORROWER HEREBY EXPRESSLY AND IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY
HAVE OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION
BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH
LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE EXTENT THAT ANY
BORROWER HAS OR
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HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY COURT OR FROM ANY
LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO
JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF
OR ITS PROPERTY, THEN EACH BORROWER HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY
IN RESPECT OF ITS OBLIGATIONS UNDER THIS AGREEMENT. NOTWITHSTANDING THE
FOREGOING, IF ADMINISTRATIVE AGENT OR ANY LENDER AT ANY TIME COMMENCES
LITIGATION AGAINST BORROWERS IN A STATE COURT OF THE COMMONWEALTH OF VIRGINIA
AT A TIME WHEN AND WITH RESPECT TO A CAUSE OF ACTION THAT AT THE TIME MAY
ALSO BE PROPERLY MAINTAINED IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA (INCLUDING, WITHOUT LIMITATION, SATISFACTION OF
PERSONAL AND SUBJECT MATTER JURISDICTION AND OTHER PROCEDURAL PREREQUISITES
TO MAINTAINING SUCH ACTION), THEN NEITHER ADMINISTRATIVE AGENT NOR ANY LENDER
WILL CONTEST OR OBJECT TO A TIMELY MOTION BY BORROWERS TO TRANSFER SUCH
ACTION TO SUCH FEDERAL COURT PROVIDED THAT SUCH ACTION CAN AT THE TIME OF
SUCH TRANSFER BE MAINTAINED WITH RESPECT TO ALL PARTIES AND ALL CAUSES OF
ACTION IDENTIFIED BY ADMINISTRATIVE AGENT OR SUCH LENDER.
10.18. WAIVER OF JURY TRIAL. ADMINISTRATIVE AGENT, EACH LENDER AND EACH
BORROWER EACH HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY
RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION (WHETHER
AS CLAIM, COUNTER-CLAIM, AFFIRMATIVE DEFENSE OR OTHERWISE) IN CONNECTION WITH
OR IN ANY WAY RELATED TO ANY OF THE LOAN DOCUMENTS, OR ANY COURSE OF CONDUCT,
COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN), ACTIONS OR
INACTIONS OF ADMINISTRATIVE AGENT, ANY LENDER OR ANY BORROWER. EACH BORROWER
ACKNOWLEDGES AND AGREES (a) THAT IT HAS RECEIVED FULL AND SUFFICIENT
CONSIDERATION FOR THIS PROVISION (AND EACH OTHER PROVISION OF EACH OTHER LOAN
DOCUMENT TO WHICH IT IS A PARTY), AND (b) THAT IT HAS BEEN ADVISED BY LEGAL
COUNSEL IN CONNECTION HEREWITH, AND (c) THAT THIS PROVISION IS A MATERIAL
INDUCEMENT FOR ADMINISTRATIVE AGENT AND EACH LENDER ENTERING INTO THE LOAN
DOCUMENTS AND FUNDING ADVANCES THEREUNDER.
[BALANCE OF PAGE INTENTIONALLY BLANK]
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IN WITNESS WHEREOF, the undersigned, by their duly authorized officers,
have executed this Credit Facility Agreement, as an instrument under seal
(whether or not any such seals are physically attached hereto), as of the day
and year first above written.
ATTEST: CCC INFORMATION SERVICES INC.
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxxxx Xxxxxxxxxx
----------------------- ---------------------------
Name: Xxxxxx X. Xxxxxx Name: Xxxxxxx Xxxxxxxxxx
---------------- --------------------
Title: Secretary Title: CEO
---------------- --------------------
[CORPORATE SEAL]
ATTEST: CCC VEHICLE DAMAGE
ESTIMATORS, INC.
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxxxx X. D'Onofro
----------------------- ---------------------------
Name: Xxxxxx X. Xxxxxx Name: Xxxxxxx X. D'Onofro
---------------- --------------------
Title: Secretary Title: Treasurer
---------------- --------------------
[CORPORATE SEAL]
ATTEST: CERTIFIED COLLATERAL
CORPORATION OF CANADA, LTD.
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxxxxxx X. D'Onofro
----------------------- ---------------------------
Name: Xxxxxx X. Xxxxxx Name: Xxxxxxx X. D'Onofro
---------------- --------------------
Title: Secretary Title: Treasurer
---------------- --------------------
[CORPORATE SEAL]
WITNESS: SIGNET BANK (AS ADMINISTRATIVE AGENT)
By: /s/ Xxxxxxx X. Fergonon By: /s/ Xxxxx X. Xxxxxxxx
-------------------------- ----------------------------------
Xxxxx X. Xxxxxxxx, Xx. Vice President
WITNESS: SIGNET BANK (AS LENDER)
By: /s/ Xxxxxxx X. Fergonon By: /s/ Xxxxx X. Xxxxxxxx
-------------------------- ----------------------------------
Xxxxx X. Xxxxxxxx, Xx. Vice President
Address: 0000 Xxxxxxxx Xxxx
Xxxxx 000
Xxxxx Xxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
COMMITMENT PERCENTAGES:
Line of Credit: %
---
Term Loan: %
---
