1
EXHIBIT 10.16 SECOND AMENDMENT TO THE CREDIT AGREEMENT
SECOND AMENDMENT
----------------
THIS SECOND AMENDMENT dated as of November 16, 1998 (this "Second
Amendment") amends the Credit Agreement dated as of March 17, 1998 (the "Credit
Agreement") among COMPASS INTERNATIONAL SERVICE CORPORATION (the "Company"),
various financial institutions and Bank of America National Trust and Savings
Association, as Administrative Agent. Terms defined in the Credit Agreement are,
unless otherwise defined herein or the context otherwise requires, used herein
as defined therein.
WHEREAS, the Company, the Lenders and the Agent desire to amend the
Credit Agreement as hereinafter set forth;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1 AMENDMENTS. Effective on (and subject to the occurrence of)
the Second Amendment Effective Date (as defined below), the Credit Agreement
shall be amended in accordance with SECTIONS 1.1 and 1.2 below:
SECTION 1.1 AMENDMENT TO COMMITMENT AMOUNT. The definition of
"Commitment Amount" set forth in Section 1.1 is amended by deleting the amount
"$50,000,000" therein and substituting the amount "$55,000,000" therefor.
SECTION 1.2 AMENDMENT TO SCHEDULE 2.1. Schedule 2.1 is replaced in its
entirety by SCHEDULE 2.1 hereto.
SECTION 2 REPRESENTATIONS AND WARRANTIES. The company represents and
warrants to the Agent and the Lenders that (a) each representation and warrant
set forth in Section 6 of the Credit Agreement is true and correct as of the
date of the execution and delivery of this Second Amendment by the Company, with
the same effect as if made on such date (except to the extent such
representations and warranties expressly refer to an earlier date, in which case
they shall be true and correct as of such earlier date); (b) the execution and
delivery by the Company of this Second Amendment and the New Notes (as defined
below), and the performance by the Company of its obligations under the Credit
Agreement as amended hereby (as so amended, the "Amended Credit Agreement") and
the New Notes, (i) are within the
2
corporate powers of the Company, (ii) have been duly authorized by all necessary
corporate action on the part of the Company, (iii) have received all necessary
governmental and regulatory approval and (iv) do not and will not contravene or
conflict with, or result in or require the creation or imposition of any Lien
under, any provision of law or of the charter or by-laws of the Company or any
Subsidiary or of any agreement, instrument, order or decree which is binding
upon the Company or any Subsidiary; and (c) the amended Credit Agreement is, and
when executed and delivered the New Notes will be, legal, valid and binding
obligations of the Company, enforceable against the Company in accordance with
their respective terms, except as enforceability may be limited by bankruptcy,
insolvency or other similar laws of general application affecting the
enforcement of creditors' rights or by general principles of equity limiting the
availability of equitable remedies.
SECTION 3 EFFECTIVENESS. The amendments set forth in SECTION 1 above
shall become effective on the date (the "Second Amendment Date") when the
Administrative Agent shall have received the fees referred to in SECTION 5 and
each of the following documents, each in form and substance satisfactory to the
Administrative Agent.
(a) counterparts of this Second Amendment executed by the
Company, each of the Lender and the Administrative
Agent (it being understood that the Administrative
Agent may conclusively rely on any counterpart
signature received by facsimile);
(b) a certificate of the secretary or an assistant of
the Company as to:
(i) resolutions of the Board of Directors of the
Company authorizing the execution and
delivery of this Second Amendment and the
New Notes and the performance by the Company
of its obligations under the Amended Credit
Agreement and the New Notes, and
(ii) the incumbency and signatures of those of
its officers authorized to execute and
deliver this Second Amendment and the New
Notes;
(c) a Confirmation, executed by the Company and each
Subsidiary, substantially in the form of EXHIBIT A
hereto;
(d) New Notes, substantially in the form of Exhibit D to
the Credit Agreement (the "New Notes"), payable to
the order of each Lender in the amount of its
Commitment as set forth in SCHEDULE 2.1 hereto (the
Notes executed by the
3
Company on August 7, 1998 to be canceled by each
Lender and returned to the Company upon receipt of
such Lender's New Note); and
(e) Such other documents as the Administrative Agent may
reasonably request.
SECTION 4 ADDITION OF LENDER. On the Second Amendment Effective Date,
PNC Bank shall become a "Lender" under and for all purposes of the Amended
Credit Agreement and shall be bound thereby and entitled to the benefits thereof
with all the rights and obligations of a Lender under the Amended Credit
Agreement.
SECTION 5 FEES. On the Second Amendment Effective Date, the Company
shall pay to PNC Bank, a closing fee in an amount equal to .15% of PNC Bank's
Percentage of the Commitment Amount.
SECTION 6 MISCELLANEOUS.
SECTION 6.1 CONTINUING EFFECTIVENESS, ETC. As herein amended, the
Credit Agreement shall remain in full force and effect and is hereby ratified
and confirmed in all respects. After the Second Amendment Effective Date, all
references in the Credit Agreement and the Loan Documents to "Credit Agreement"
or similar terms shall refer to the Amended Credit Agreement.
SECTION 6.2 COUNTERPARTS. This Second Amendment may be executed in any
number of counterparts and by different parties on separate counterparts, and
each such counterpart shall be deemed to be an original but all such
counterparts shall together constitute one and the same Second Amendment.
SECTION 6.3 GOVERNING LAW. This Second Amendment shall be a contract
made under and governed by the laws of the State of Illinois applicable to
contracts made and to be performed entirely within such State.
SECTION 6.4 SUCCESSORS AND ASSIGNS. This Second Amendment shall be
binding upon the Company, the Lenders and the Administrative Agent and their
respective successors and assigns, and shall inure to the benefit of the
Company, the Lenders and the Administrative Agent and the respective successors
and assigns of the Company, the Lenders and the Administrative Agent.
Delivered at Chicago, Illinois, as of the day and year first above
written.
COMPASS INTERNATIONAL SERVICES
CORPORATION
4
By: ______________/S/_________________
Title: ____________/S/__________________
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as
Administrative Agent
By: ______________/S/_________________
Title: ____________/S/__________________
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as Issuing
Lender and as a Lender
By: ______________/S/_________________
Title: ____________/S/__________________
FIRST NATIONAL BANK OF MARYLAND
By: _____________/S/___________________
Title: ___________/S/____________________
FLEET NATIONAL BANK
By: ____________/S/____________________
Title: __________/S/_____________________
PNC BANK, NATIONAL ASSOCIATION
By: ___________/S/____________________
Title: _________/S/_____________________
5
SCHEDULE 2.1
COMMITMENTS AND PERCENTAGES
LENDER COMMITMENT PERCENTAGE
------ ---------- ----------
Bank of America National $18,000,000 32.727272727%
Trust and Savings Association
Fleet National Bank $17,000,000 30.909090909%
First National Bank of Maryland $10,000,000 18.181818182%
PNC Bank $10,000,000 18.181818182%
----------- ------------
$55,000,000 100%
6
CONFIRMATION
Dated as of November 16, 1998
TO: Bank of America National Trust and Savings Association,
as Administrative Agent, and the Lenders party to the
Credit Agreement referred to below
Please refer to (a) the Credit Agreement dated as of March 17,
1998 (the "CREDIT AGREEMENT") among Compass International Services Corporation
(the "COMPANY"), various financial institutions (the "LENDERS") and Bank of
America National Trust and Savings Association, as Administrative Agent; (b) the
First Amendment dated as of August 7, 1998 to the Credit Agreement; (c) the
Second Amendment dated as of November 16, 1998 to the Credit Agreement; (d) the
Security Agreement dated as of March 17, 1998 (the "SECURITY AGREEMENT") among
the Company, various Subsidiaries of the Company and the Administrative Agent;
(e) the Guaranty dated as of March 17, 1998 (the "GUARANTY") executed by various
Subsidiaries of the Company; (f) the Company Pledge Agreement dated as of March
17, 1998 (the "COMPANY PLEDGE AGREEMENT") between the Company and the
Administrative Agent; (g) the Subsidiary Pledge Agreement dated as of March 17,
1998 (the "MAIL BOX, INC. PLEDGE AGREEMENT") between the Mail Box, Inc. and the
Administrative Agent; (h) the Subsidiary Pledge Agreement dated as of March 17,
1998 (the "MID-CONTINENT AGENCIES, INC. PLEDGE AGREEMENT") between Mid-Continent
Agencies, Inc. and the Administrative Agent; (i) the Subsidiary Pledge Agreement
dated as of March 17, 1998 (the "NATIONAL CREDIT MANAGEMENT CORPORATION PLEDGE
AGREEMENT") between National Credit Management Corporation and the
Administrative Agent; (j) the Subsidiary Pledge Agreement dated as of July 1,
1998 (the "XXXXX & ASSOCIATE MAILING SERVICES, INC. PLEDGE AGREEMENT") between
Xxxxx & Associate Mailing Services, Inc. and the Administrative Agent; (k) the
Subsidiary Pledge Agreement dated as of _________ (the "NATIONWIDE DEBT RECOVERY
PLEDGE AGREEMENT") between Nationwide Debt Recovery, Inc. and the Administrative
Agent; (l) the Subsidiary Pledge Agreement dated as of ___________ (the "COMPASS
RECEIVABLES MANAGEMENT HOLDING CORPORATION PLEDGE AGREEMENT") between Compass
Receivables Management Holding Corporation and the Administrative Agent. Each
document referred to in ITEMS (D) through (L) above is called a "CREDIT
DOCUMENT". Capitalized terms used but not defined herein shall have the meanings
set forth in the Credit Agreement.
Each of the undersigned (a) confirms to the Lenders and the
Administrative Agent that (i) each Credit Document to which such undersigned is
a party continues in full force and effect on and after the date hereof, and is
the legal, valid and binding obligation of such undersigned, enforceable against
such undersigned in accordance with its terms, it being understood that the
Security Agreement shall not become effective until the occurrence of a
Collateralization Date, and (ii) the obligations and liabilities
7
guaranteed or secured (as applicable) under each Credit Document include,
without limitation, all obligations and liabilities of the Company under the
Credit Agreement, as amended by the Second Amendment (as so amended, the
"AMENDED CREDIT AGREEMENT"); and (b) agrees that each reference in each Credit
Document to the "Credit Agreement" or any similar term shall, after the date
hereof, be deemed to be a reference to the Amended Credit Agreement.
8
IN WITNESS WHEREOF, each of the undersigned has caused this
Confirmation to be executed and delivered by its duly authorized officer as of
the date first written above.
COMPASS INTERNATIONAL SERVICES
CORPORATION
By: ______________/S/_________________
Title: ____________/S/_________________
The Mail Box, Inc.
The Mail Box Data Services, Inc.
Mid-Continent Agencies, Inc.
Mid-Continent Agencies of Illinois, Inc.
Mid-Continent Agencies of NewYork, Inc.
Mid-Continent Agencies of Kentucky, Inc.
Mid-Continent Agencies of Georgia, Inc.
Mid-Continent Agencies of California, Inc.
Impact Telemarketing Group, inc.
Impact Tele-marketing, Inc.
National Credit Management Corporation
Total Early Receivables Management Corporation
Compass Receivables Management Corporation
Xxxxxx Direct Mail Service, Inc.
Delivery Verification Service, Inc.
Xxxxx & Associates Mailing Services, Inc.
Metrowebb, Inc.
MWI Laser Group, Inc.
Ameritex mailing Services, Inc.
Nationwide Debt Recovery, Inc.
Compass Receivables Management Holding Corporation
Nationwide Debt Recovery, L.P.
Professional American Collections, Inc.
By: _________________/S/___________________
Title:________________/S/___________________
9
Accepted and Agreed to this
16th day of November, 0000
XXXX XX XXXXXXX NATIONAL TRUST
AND SAVINGS ASSOCIATION, as Administrative Agent
By: __________/S/_________________
Title: __________/S/________________
