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EXHIBIT 10.1
THIRD AMENDMENT
THIRD AMENDMENT, dated as of May 25, 1999 (this "Amendment"), to the
Credit Agreement, dated as of February 27, 1997, as amended and restated as of
February 10, 1998 and as further amended by the First Amendment, dated as of
June 30, 1998, and the Second Amendment, dated as of February 12, 1999 (the
"Credit Agreement"), among Cooperative Computing, Inc., a Delaware corporation
(the "Borrower"), Cooperative Computing Holding Company, Inc., a Texas
corporation, as guarantor ("CCI"), the several banks and other financial
institutions parties thereto (the "Lenders") and The Chase Manhattan Bank, as
the administrative agent for the Lenders (in such capacity, the "Administrative
Agent").
W I T N E S E T H:
WHEREAS, pursuant to the Credit Agreement, the Lenders have agreed to
make, and have made, certain loans and other extensions of credit to the
Borrower; and
WHEREAS, the Borrower has requested that the Credit Agreement be
amended to allow for a $25,000,000 equity investment in CCI by Hicks, Muse,
▇▇▇▇ & ▇▇▇▇▇ and to effect certain other amendments to the Credit Agreement as
provided for in this Amendment;
NOW, THEREFORE, the parties hereto hereby agree as follows:
I. Defined Terms. Terms defined in the Credit Agreement and used
herein shall have the meanings given to them in the Credit Agreement, as
amended hereby.
II. Amendments to Credit Agreement.
1. Amendments to Section 1. Section 1.1 of the Credit Agreement is
hereby amended as follows:
(a) by deleting therefrom the definition of "Consolidated
EBITDA" in its entirety and substituting in lieu thereof the following:
"Consolidated EBITDA": for any period, with respect
to any Person, Consolidated Net Income of such Person for such period
(A) plus, without duplication and to the extent reflected as a charge
in the statement of such Consolidated Net Income for such period, the
sum of (i) total income and franchise tax expense, (ii) interest
expense, amortization or writeoff of debt discount and debt issuance
costs and commissions and discounts and other fees and charges
associated with Indebtedness, (iii) depreciation and amortization
expense, (iv) amortization of intangibles including, but not limited
to, goodwill and organization costs (including, with respect to the
Borrower, costs associated with the Offer to Purchase dated October
23, 1996 made by a subsidiary of CCI to purchase the common stock of
the Borrower); (v) other extraordinary noncash charges (in accordance
with GAAP) (including non-cash currency exchange losses); (vi) any
extraordinary and unusual losses (including losses on sales of assets
other than inventory sold in the ordinary course of business) and
(vii) any write-offs of accounts
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receivable (in accordance with GAAP) provided that the aggregate
amount of all write-offs taken under this clause (vii), minus any
amounts recovered and applied in accordance with clause (iii) below,
shall not exceed $10,000,000 and (B) minus, without duplication and to
the extent reflected as a credit or gain in the statement of such
Consolidated Net Income for such period, the sum of (i) any
extraordinary and unusual gains (including gains on the sales of
assets, other than inventory sold in the ordinary course of business),
(ii) other extraordinary noncash credits or gains (in accordance with
GAAP) (including non-cash currency exchange gains) and (iii) any
amounts recovered in respect of any write-offs taken under clause
(vii) above; provided that through the last day of the third full
fiscal quarter following the consummation of an acquisition pursuant
to Sections 8.9(k) or 8.9(l), the Borrower shall calculate
Consolidated EBITDA for purposes of Section 8.1 on a pro forma basis
(assuming the consummation of such acquisition and the incurrence or
assumption of any Indebtedness in connection therewith occurred on the
first day of the relevant period).
(b) by adding thereto the following definitions in their
appropriate alphabetical order:
"▇▇▇▇▇ Muse": Hicks, Muse, ▇▇▇▇ & ▇▇▇▇▇ Equity Fund III, LP.
"▇▇▇▇▇ Muse Equity Investment": the $25,000,000 common stock
investment in CCI made by ▇▇▇▇▇ Muse by its purchase of the New Common
Stock.
"New Common Stock": the Series A Common Stock, par value
$.01, issued by CCI to ▇▇▇▇▇ Muse in connection with the ▇▇▇▇▇ Muse
Equity Investment.
"Total Debt Ratio": the ratio of Consolidated Total Debt of
the Borrower and its Subsidiaries to Consolidated EBITDA of the
Borrower and its Subsidiaries for a period of four consecutive fiscal
quarters.
(c) by (i) deleting the word "and" appearing immediately
before clause (h) of the definition of "Permitted Issuance" and substituting in
lieu thereof a ","; (ii) deleting the "." at the end of clause (h) of such
definition and substituting in lieu thereof the word "and"; and (iii) adding
the following new clause (i) to the end of such definition:
(i) the issuance by CCI of the New Common Stock; provided
that the net proceeds thereof shall be contributed to the Borrower and
used for general corporate purposes or to repay the Revolving Credit
Loans (but not reduce the Revolving Credit Commitments).
2. Amendment to Section 8. Section 8.7 of the Credit Agreement shall
be amended (i) by deleting the "." at the end of Section 8.7(d) and
substituting in lieu thereof "; and" and (ii) by adding the following new
Section 8.7(e) to the end of such Section 8.7:
(e) the Borrower may make Restricted Payments to CCI, and CCI
may simultaneously make corresponding Restricted Payments to ▇▇▇▇▇
Muse or any other holder of the New Common Stock, to allow CCI to
redeem, in whole or in part, the New Common Stock in accordance with
its terms as long as (i) no Default or Event of Default
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has occurred or would result therefrom, (ii) the Total Debt Ratio on a
pro forma basis after giving effect to the amount of such redemption
on the date of making such Restricted Payments for the period ending
on the last day of each of the two immediately preceding fiscal
quarters (or, if the date of making such Restricted Payments is the
last day of a fiscal quarter, such fiscal quarter and the immediately
preceding fiscal quarter) is no greater than 4.00 to 1.00 and (iii)
there shall be at least $25,000,000 available under the Revolving
Credit Facility on the date of making such Restricted Payments and
after giving effect thereto.
3. Amendment to Section 11. Section 11.6 of the Credit Agreement shall
be amended by deleting clause (vi) in its entirety and substituting in lieu
thereof the following new clause (vi): "(vi) make any Restricted Payment except
as permitted by Sections 8.7(a)(i), 8.7(a)(v), 8.7(c), 8.7(d) and 8.7(e)".
III. Conditions to Effectiveness. This Amendment shall become
effective on the date on which this Amendment shall have been (i) executed by
the Borrower, CCI, the Administrative Agent and the Required Lenders and (ii)
acknowledged and consented to by the other Credit Parties, each in accordance
with the terms of the Credit Agreement.
IV. General.
1. Representations and Warranties. The representations and warranties
made by the Borrower in the Loan Documents are true and correct in all material
respects on and as of the date hereof, after giving effect to the effectiveness
of this Amendment, as if made on and as of the date hereof, except for any
representation and warranty which is expressly made as of an earlier date which
representation and warranty shall have been true and correct in all material
respects as of such earlier date, and no Default or Event of Default has
occurred and is continuing.
2. Payment of Expenses. The Borrower agrees to pay or reimburse the
Administrative Agent for all of its out-of-pocket costs and reasonable expenses
incurred in connection with this Amendment, any other documents prepared in
connection herewith and the transactions contemplated hereby, including,
without limitation, the reasonable fees and disbursements of counsel to the
Administrative Agent.
3. No Other Amendments; Confirmation. Except as expressly amended,
modified and supplemented hereby, the provisions of the Credit Agreement and
the Notes are and shall remain in full force and effect.
4. Affirmation of Guarantees. Each of the Guarantors hereby consents
to the execution and delivery of this Amendment and to the transactions
contemplated hereby or in any related document and reaffirms its obligations
under the Guarantee and Collateral Agreement executed by such Guarantor.
5. Governing Law; Counterparts. (a) This Amendment and the rights and
obligations of the parties hereto shall be governed by, and construed and
interpreted in accordance with, the laws of the State of New York.
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(b) This Amendment may be executed by one or more of the parties to
this Agreement on any number of separate counterparts, and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument. A set of the copies of this Amendment signed by all the parties
shall be lodged with the Borrower and the Administrative Agent. This Amendment
may be delivered by facsimile transmission of the relevant signature pages
hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered by their respective proper and duly authorized
officers as of the day and year first above written.
COOPERATIVE COMPUTING, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: CFO
COOPERATIVE COMPUTING HOLDING COMPANY, INC.,
as a Guarantor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Operating Officer
THE CHASE MANHATTAN BANK,
as Administrative Agent,
a Lender and Issuing Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Managing Director
