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Exhibit 10.16.2
AGREEMENT
THIS AGREEMENT (referred to herein as this "Amendment"), dated
as of March 6, 1998, by and among PRIMARK CORPORATION, a Michigan corporation
(the "Borrower"), the Lenders party to the Revolving Credit Agreement referred
to below, the Lenders party to the Term Loan Agreement referred to below, the
Lenders party to the Note Backup Agreement referred to below (such agreements
being referred to collectively as the "Credit Facilities"), and MELLON BANK,
N.A., a national banking association, as Agent under each such Credit Facility.
RECITALS:
A. The Borrower has entered into (a) a Revolving Credit
Agreement (as amended, the "Revolving Credit Agreement") dated as of February 7,
1997 among Primark Corporation (the "Borrower"), the Lenders parties thereto
from time to time, the Issuing Banks referred to therein, and Mellon Bank, N.A.,
as Agent, (b) a Term Loan Agreement (as amended, the "Term Loan Agreement")
dated as of February 7, 1997 among the Borrower, the Lenders parties thereto
from time to time, and Mellon Bank, N.A., as Agent, and (c) a Note Backup
Agreement (as amended, the "Note Backup Agreement") dated as of February 7, 1997
among the Borrower, the Lenders parties thereto from time to time, the Issuing
Bank referred to therein, and Mellon Bank, N.A., as Agent. The Credit Facilities
have been amended by a letter agreement dated February 21, 1997, an Amendment to
Transactions Documents dated as of May 1, 1997, an Amendment to Transaction
Documents dated as of June 30, 1997, and an Amendment to Transaction Documents
dated as of December 1, 1997.
B. The parties hereto desire to amend further the Credit
Facilities as set forth herein, and to amend the Collateral Agency Agreement
referred to in each of the Credit Facilities (the "Collateral Agency Agreement")
and the Borrower Pledge Agreement referred to in the Collateral Agency Agreement
(the "Borrower Pledge Agreement"). In addition, for convenience, the parties
hereto desire to cumulate in this Amendment all prior amendments to the Credit
Facilities. Accordingly, references in this Amendment to the Credit Facilities,
the Collateral Agency Agreement and the Borrower Pledge Agreement are to such
agreements in the forms originally executed. Capitalized terms used herein and
not otherwise defined shall have the meanings given them in, or by reference in,
the Collateral Agency Agreement.
NOW THEREFORE, the parties hereto, intending to be legally
bound, hereby agree as follows:
SECTION 1. CERTAIN AMENDMENTS TO THE FINANCIAL TERMS OF THE REVOLVING CREDIT
AGREEMENT.
(a) Revolving Credit Agreement, Section 2.01(a), is amended to read as follows:
(a) REVOLVING CREDIT COMMITMENTS. Subject to the terms and
conditions and relying upon the representations and warranties herein
set forth, each Lender, severally and not jointly, agrees (such
agreement being herein called such Lender's "Revolving Credit
Commitment") to make loans (the "Revolving Credit Loans") to the
Borrower at any time or from time to time on or after the date hereof
and to but not including the Revolving Credit Maturity Date. A Lender
shall have no obligation to make any Revolving Credit Loan to the
extent that such Lender's Revolving Credit Exposure at any time would
exceed such Lender's Revolving Credit Committed Amount at such time.
Each Lender's "Revolving Credit Committed Amount" at any time shall be
equal to the amount set forth as its "Initial Revolving Credit
Committed Amount" below its name on the signature pages hereof, as such
amount may have been reduced under Section 2.01(f) hereof at such time,
and subject to transfer to another Lender as provided in
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Section 10.14 hereof; provided, that upon the occurrence of the
Extension Date, each Lender's "Revolving Credit Committed Amount shall
be automatically increased by an amount equal to such Lender's Pro Rata
share of $150,000,000. The sum of the Revolving Credit Committed
Amounts of the Lenders shall not exceed $75,000,000 at any time before
the Extension Date or $225,000,000 at any time on or after the
Extension Date.
(b) Revolving Credit Agreement, Section 2.01(c), is amended by deleting the
period at the end thereof and replacing it with the following: "; provided, that
Revolving Credit Notes issued pursuant to Section 5.03 in connection with the
Extension Date shall be dated the Extension Date and shall be in the face amount
equal to such Lender's Revolving Credit Committed Amount on the Extension Date
after giving effect to the increase in the Revolving Credit Committed Amounts on
such date."
(c) Revolving Credit Agreement, Section 2.01(e), is amended by adding the
following line (ignoring the caption, which is set forth below only for
reference purposes):
If the Applicable Margin for Then the Revolving Credit
such day is to be determined Commitment Fee Percentage for
in accordance with such day is
------------------ -----------
Level V Performance Margins 0.20%
(d) The following new Sections 2.01(g) and 2.01(h) are added to the Revolving
Credit Agreement:
(g) AUTOMATIC REDUCTION OF THE REVOLVING CREDIT COMMITTED
AMOUNTS. The aggregate Revolving Credit Committed Amounts of the
Lenders shall be reduced automatically by the following amounts on the
following dates:
Date of Reduction Amount of Reduction
----------------- -------------------
December 31, 1998 $5,000,000
June 30, 1999 $5,000,000
December 31, 1999 $10,000,000
June 30, 2000 $10,000,000
December 31, 2000 $10,000,000
June 30, 2001 $15,000,000
December 31, 2001 $140,000,000
June 30, 2002 $15,000,000
December 31, 2002 $15,000,000
To the extent any such reduction amount exceeds the aggregate Revolving
Credit Committed Amounts of the Lenders on such date, the excess shall
be ignored. Each such automatic reduction of the Revolving Credit
Committed Amounts shall be applied Pro Rata to the Revolving Credit
Committed Amounts of the Lenders. After the date of such reduction the
Revolving Credit Commitment Fee shall be calculated upon the Revolving
Credit Committed Amounts as so reduced.
(h) CERTAIN ADDITIONAL FEES IN CERTAIN CIRCUMSTANCES.
(i) In consideration of the Lenders entering into the
Agreement dated as of March 6, 1998, three Business Days after such
Agreement becomes effective in accordance with its terms the Borrower
shall pay, in addition to all other amounts payable hereunder (A) to
the Agent for the account of each Lender a fee equal to such Lender's
Pro Rata share of $75,000, and (B) to the Agent, for its own account, a
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structuring fee in the amount agreed by the Borrower and the Agent. The
obligations of the Borrower under this Section 2.01(h)(i) shall survive
any termination of this Agreement.
(ii) In the event that at any time before the first
anniversary of the effective date of the Agreement dated as of March 6,
1998 (or, if the Extension Date occurs, at any time before the first
anniversary of the Extension Date) any of the following events or
conditions shall have occurred: (A) an event or condition referred to
in Section 8.01(m) hereof shall have occurred, (B) the Borrower shall
have consolidated or merged with or into any other Person, (C) the
Borrower shall have liquidated, commenced a Wind-up, dissolved or
divided, or (D) the Borrower shall have sold, leased or otherwise
transferred all or substantially all of its assets to any other Person
or Person, voluntarily or involuntarily, then, and in any such event
(whether or not consented to or waived by the Lenders), in addition to
all other amounts payable under this Agreement and the other Loan
Documents, the Borrower shall pay to the Agent, for the account of each
of the Lenders, on the third Business Day following the occurrence of
such event, a fee equal to such Lender's Pro Rata share of $150,000.
The obligations of the Borrower under this Section 2.01(h)(ii) shall
survive any termination of this Agreement.
(e) Section 2.03(b) of the Revolving Credit Agreement and Section 3.09(b) of the
Note Backup Agreement each are amended as follows: (i) the first sentence is
amended by deleting the term "or 'Level IV Performance Margins,'" and replacing
it with the phrase "'Level IV Performance Margins,' or 'Level V Performance
Margins,'", (ii) the first and second sentences each are amended by deleting the
phrase "or Financial Test IV," and replacing it with the phrase ", Financial
Test IV or Financial Test V,", and (iii) the final sentence before the table
defining the various Performance Margins is amended by deleting the phrase "or
Level IV Performance Margins do not apply on a particular day," and replacing it
with the phrase ", Level IV Performance Margins or Level V Performance Margins
do not apply on a particular day,". In addition, the definition of "Financial
Test IV" is deleted and replaced with the following:
"Financial Test IV" means that, as of the end of the relevant
fiscal quarter, the Consolidated Funded Debt Ratio (Adjusted) for the
period of four consecutive fiscal quarters ending on the last day of
such fiscal quarter, considered as a single accounting period, is (x)
less than 2.50, if the last day of such fiscal quarter is on or before
the Extension Date, or (y) less than 2.50 and greater than or equal
than 2.00, if the last day of such fiscal quarter is after the
Extension Date.
In addition, the following new entry is added to the table of Performance
Margins following the table entry for "Level IV Performance Margins":
LEVEL V PERFORMANCE MARGINS:
Interest Rate Option Applicable Margin
-------------------- -----------------
Base Rate Option Zero
Euro-Rate Option 0.375%
Level V Performance Margins shall apply in the event that Financial
Test V is satisfied and the other conditions set forth above are met.
"Financial Test V" means that as of the end of the relevant fiscal
quarter, the Consolidated Funded Debt Ratio (Adjusted) for the period
of four consecutive fiscal quarters ending on the last day of such
fiscal quarter, considered as a single accounting period, is less than
2.00; provided, that Financial Text V shall not be deemed to be
satisfied in any event unless the last day of such fiscal quarter is
after the Extension Date.
(f) Revolving Credit Agreement, Section 2.07(b)(i), first sentence, is deleted
and replaced with the following: "The Borrower shall be required from time to
time to reduce the aggregate Revolving Credit
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Committed Amounts by an amount not less than the Recapture Asset Amount from
each Recapture Asset Disposition which occurs on or before the Extension Date."
(g) Revolving Credit Agreement, Section 2.07(b)(iii)(B), is amended to read as
follows:
(B) any event or condition (other than the TASC Disposition)
which would (but for the requirement hereunder to reduce the Revolving
Credit Committed Amounts and prepay the Revolving Credit Exposures, and
any requirement under the Term Loan Agreement to prepay the
Indebtedness outstanding thereunder) give rise to any "Excess Proceeds"
as defined in the Senior Note Indenture (taking into account the
periods specified in the Senior Note Indenture which must elapse before
amounts constitute "Excess Proceeds") (Recapture Asset Dispositions
described in this clause (B) being sometimes referred to herein as
being of "Type B").
(h) Revolving Credit Agreement, Section 5.02(e), is amended to read as follows:
(e) NO MATERIAL ADVERSE CHANGE. There shall not have occurred,
or be threatened, a material adverse change in the business,
operations, condition (financial or otherwise) or prospects of the
Borrower and its Subsidiaries taken as a whole since September 30, 1997
(it being understood that the TASC Disposition shall not in itself be
deemed to constitute such a material adverse change).
(i) The following new Section 5.03 is added to the Revolving Credit Agreement:
5.03. CONDITIONS TO OCCURRENCE OF THE EXTENSION DATE. The
"Extension Date" shall occur upon the date designated by the Borrower
in the certificate referred to below, provided that the following
conditions precedent shall have been satisfied on such date:
(a) TASC DISPOSITION. The TASC Disposition shall have
occurred not later than April 30, 1998.
(b) SENIOR NOTE REDEMPTION NOTICE. The Borrower shall
have given notice to the trustee under the Senior Note
Indenture of redemption of all of the outstanding Senior
Notes, specifying as the "Redemption Date" a date not later
than 60 days after the TASC Disposition.
(c) REPAYMENT OF THE TERM LOAN; TERMINATION OF THE
COLLATERAL AGENCY AGREEMENT AS TO THE TERM LOAN AGREEMENT. The
Borrower shall have indefeasibly paid in full in cash all Term
Loan Obligations (other than Contingent Indemnification
Obligations), as such terms are defined in the Collateral
Agency Agreement. Such payment shall have been made on the
Extension Date. The Borrower shall have given a written notice
pursuant to the final sentence of Section 2.05 of the
Collateral Agency Agreement to the Term Loan Agent requesting
the Term Loan Agent to give to the Collateral Agent the notice
contemplated by Section 2.05(b) of the Collateral Agency
Agreement.
(d) REPLACEMENT REVOLVING CREDIT NOTES. The Agent shall
have received, with a copy for each Lender, new Revolving
Credit Notes conforming to the requirements of Section 2.01(c)
hereof, duly executed on behalf of the Borrower.
(e) OFFICER'S CERTIFICATE. The Agent shall have received
a certificate in substantially the form attached hereto as
Exhibit D, duly executed by a Responsible Officer of the
Borrower, dated the Extension Date.
(f) OPINION OF GENERAL COUNSEL OF THE BORROWER. The
Agent shall have received an opinion of the General Counsel of
the Borrower in substantially the form attached hereto as
Exhibit E.
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(g) NO DEFAULTS; NO REDUCTION OF THE REVOLVING CREDIT
COMMITMENTS. No Event of Default or Potential Default shall
have occurred and be continuing or exist on the Extension Date
or will occur or exist after giving effect to the Extension
Date. The aggregate Revolving Credit Committed Amounts of the
Lenders on the Extension Date, before giving effect to the
increase in the Revolving Credit Committed Amounts occurring
on the Extension Date, shall not be less than $75,000,000.
(h) CORPORATE PROCEEDINGS. The Agent shall have received
certificates by the Secretary or Assistant Secretary of the
Borrower dated as of the Extension Date as to (i) true copies
of the articles of incorporation and by-laws (or other
constituent documents) of the Borrower in effect on such date,
(ii) true copies of all corporate action taken by the Borrower
relative to this Agreement and the other Loan Documents, as
amended (including without limitation the Agreement dated as
of March 6, 1998, and the replacement Revolving Credit Notes
referred to in Section 5.03(d)), (iii) the incumbency and
signature of the respective officers of the Borrower executing
the Agreement dated as of March 6, 1998 and the replacement
Revolving Credit Notes referred to in Section 5.03(d),
together with satisfactory evidence of the incumbency of such
Secretary or Assistant Secretary. The Agent shall have
received certificates from the appropriate Secretary of State
or other applicable Governmental Authorities dated not more
than 30 days before the Extension Date showing the good
standing of the Borrower in its state of incorporation.
(i) ADDITIONAL MATTERS. All corporate and other
proceedings, and all documents, instruments and other matters
in connection with the transactions contemplated by this
Section 5.03 shall be satisfactory in form and substance to
the Agent. The Agent shall have received such other documents,
instruments and other items as the Agent may reasonably
request.
In the event that the Extension Date occurs, the Agent shall promptly
notify each of the Lenders of such fact and shall promptly distribute
to each Lender its new Revolving Credit Note. Promptly following its
receipt of such new Revolving Credit Note, each Lender shall promptly
return its predecessor Revolving Credit Note to the Agent, who shall
xxxx them "exchanged" and deliver them to the Borrower.
(j) Revolving Credit Agreement, Section 9.12, is amended by deleting the phrase
"$50,000 per annum" and replacing it with the phrase "$50,000 per annum (or, if
the Extension Date occurs, $100,000 per annum, so that if the Extension Date
occurs, each subsequent semiannual payment on each subsequent June 29 and
December 29 as hereinafter provided shall be in the amount of $50,000)".
(k) Revolving Credit Agreement, Annex A, Section 1.01, is amended by deleting
the definition of "Revolving Credit Maturity Date" and replacing it with the
following definition, and by adding the following additional defined term, each
in their appropriate places in alphabetical order:
"Extension Date" shall have the meaning given that term in
Section 5.03 hereof.
"Revolving Credit Maturity Date" shall mean the earlier to
occur of October 15, 2000 or the date of the TASC Disposition;
provided, that in the event that the Extension Date occurs, the
Revolving Credit Maturity Date automatically shall be extended to
December 31, 2002.
(l) Exhibits D and E to this Amendment are appended to the Revolving Credit
Agreement as Exhibits D and E thereto.
SECTION 2. AMENDMENT TO THE FINANCIAL TERMS OF THE TERM LOAN AGREEMENT. Term
Loan Agreement, Section 2.01(d), is amended by adding the following new sentence
to the end thereof: "In
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addition, to the extent not due and payable earlier, the Term Loans shall be due
and payable on the date of the TASC Disposition."
SECTION 3. CERTAIN AMENDMENTS TO THE FINANCIAL TERMS OF THE NOTE BACKUP
AGREEMENT.
(a) Note Backup Agreement, Section 3.01(c), final sentence, is amended to read
as follows: "The 'Letter of Credit Fee Rate' for any day shall mean the
Applicable Margin applicable under the Euro-Rate Option on such day (whether or
not the Extension Date has occurred and, accordingly, whether or not the
Euro-Rate Option is actually available to the Borrower on such day)."
(b) Note Backup Agreement, Section 3.04(a), is amended to read as follows:
(a) BORROWER'S REIMBURSEMENT OBLIGATION. The Borrower hereby
agrees to reimburse the Issuing Bank, by making payment to the Agent
for the account of the Issuing Bank in accordance with Section 3.15(b)
hereof, in the amount of each Letter of Credit Unreimbursed Draw, which
reimbursement shall be due at the following times:
(x) if the Extension Date has not occurred, on
October 16, 2000 (the "Reimbursement Target Date") and
thereafter ON DEMAND,
(y) if the Extension Date has occurred, ON DEMAND;
provided, that if any unpaid amount of any Letter of Credit
Unreimbursed Draw is subject to a Euro-Rate Funding Period
beginning before the Extension Date and ending after the
Extension Date, reimbursement of such unpaid amount shall,
subject to the other provisions of this Agreement and the
other Loan Documents, be payable on the last day of such
Euro-Rate Funding Period.
Such reimbursement shall also be due at such earlier times as are
provided elsewhere in this Agreement and the other Loan Documents.
(c) Note Backup Agreement, Section 3.09(a), is amended to read as follows:
(a) INTEREST RATE OPTIONS. Interest on the unpaid amount of
Letter of Credit Unreimbursed Draws shall bear interest for each day
until due on one or more bases selected by the Borrower from among the
interest rate Options set forth below. Subject to the provisions of
this Agreement, during any period before an unpaid amount of a Letter
of Credit Unreimbursed Draw is due, such unpaid amount shall bear
interest at the Base Rate Option, unless and until converted to the
Euro-Rate Option in accordance with the provisions of this Agreement.
Subject to the provisions of this Agreement, during any period before
an unpaid amount of a Letter of Credit Unreimbursed Draw is due, the
Borrower may select different Options to apply simultaneously to
different Portions of such unpaid amount and may select different
Funding Segments to apply simultaneously to different parts of the
Euro-Rate Portion of such unpaid amount. The interest rate Options
applicable to unpaid amounts of Letter of Credit Unreimbursed Draws
before such unpaid amounts become due are as follows:
(i) BASE RATE OPTION: A rate per annum (computed on the
basis of a year of 365 or 366 days, as the case may be, and
actual days elapsed) for each day equal to the Base Rate for
such day plus the Applicable Margin for such day.
(ii) EURO-RATE OPTION: A rate per annum (based on a
year of 360 days and actual days elapsed) for each day equal
to the Euro-Rate for such day plus the Applicable Margin for
such day.
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From and after the date reimbursement of any unpaid amount of Letter of
Credit Unreimbursed Draw is due, such unpaid amount shall bear interest
in accordance with Section 3.15(c) hereof. For the avoidance of doubt,
for all purposes of this Agreement and the other Loan Documents, any
unpaid amount of any Letter of Credit Unreimbursed Draw which is
payable on demand shall be deemed due, whether or not any demand for
payment has been made.
(d) Note Backup Agreement, Section 3.09(b), is amended as provided in Section
1(e) of this Amendment. In addition, in the table of Applicable Margins, the
Applicable Margins for the Euro-Rate Options are amended as follows:
(i) under Level I Performance Margins, "1.25%" is amended to read
"1.25% or, after the Extension Date, 1.00%",
(ii) under Level II Performance Margins, "1.00%" is amended to read
"1.00% or, after the Extension Date, 0.75%",
(iii) under Level III Performance Margins, "0.875%" is amended to read
"0.875% or, after the Extension Date, 0.625%", and
(iv) under Level IV Performance Margins, "0.75%" is amended to read
"0.75% or, after the Extension Date, 0.50%".
In addition, the following additional paragraph is added following the end of
the table of Performance Margins (after the table entry relating to Level V
Performance Margins):
Notwithstanding the foregoing, if the Extension Date has
occurred and if any unpaid amount of any Letter of Credit Unreimbursed
Draw is subject to a Euro-Rate Funding Period beginning before the
Extension Date and ending after the Extension Date, the Applicable
Margin applicable to calculation of interest on such unpaid amount for
each day from and after the Extension Date shall not be affected by the
occurrence of such Extension Date and shall be determined as if the
Extension Date had not occurred.
(e) Note Backup Agreement, Section 3.09(c)(ii), is amended to read as follows:
(ii) The Borrower may not select a Funding Period that would
end after the Reimbursement Target Date or, if the Extension Date has
occurred, after the Extension Date; and
(f) Section 3.12 of the Note Backup Agreement is amended by deleting the final
sentence thereof and replacing it with the following: "Any such prepayment shall
be made in accordance with Section 3.11 hereof; provided, that with the consent
of the Agent (which the Agent may grant or withhold in its sole discretion from
time to time), any such prepayment may be made in a principal amount other than
a principal amount permitted under Section 3.11."
(g) Note Backup Agreement, Annex A, Section 1.01, is amended by adding the
following new definition in its appropriate place in alphabetical order:
"Extension Date" shall have the meaning given that term in the
Revolving Credit Agreement.
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SECTION 4. CERTAIN OTHER AMENDMENTS TO THE CREDIT FACILITIES.
(a) Section 2.03(b) of the Revolving Credit Agreement, Section 2.03(b)(ii) of
the Term Loan Agreement, and Section 3.09(b) of the Note Backup Agreement, is
amended by deleting the term "September 30, 1997" and replacing it with the term
"June 30, 1997".
(b) Section 7.01(a) of each Credit Facility is amended by deleting the table
contained therein and replacing it with the following table:
Consolidated Net Worth (Adjusted)
From and including To and including shall not be less than
------------------ ---------------- ----------------------
December 31, 1996 June 29, 1998 $425,000,000
June 30, 1998 December 30, 1998 $450,000,000
December 31, 1998 December 30, 1999 $475,000,000
December 31, 1999 December 30, 2000 $500,000,000
December 31, 2000 December 30, 2001 $525,000,000
December 31, 2001 December 30, 2002 $550,000,000
December 31, 2002 December 30, 2003 $575,000,000
Thereafter $600,000,000
For convenience of comparison between this Agreement and the other
Credit Facilities, the above table may refer to periods after the final
scheduled maturity date of the credit facility under this Agreement,
but such reference shall not be construed to extend such final
scheduled maturity date.
(c) Section 7.01(c) of each Credit Facility is amended by deleting the table
contained therein and replacing it with the following table:
Fiscal quarter ending on Consolidated Funded Debt Ratio (Adjusted) a
date in the following for the four fiscal quarters ending
period (inclusive) on such date shall not be greater than
------------------ --------------------------------------
December 31, 1996 through June 29, 1997 5.50
June 30, 1997 through September 29, 1997 6.35
September 30, 1997 through December 30, 1997 6.00
December 31, 1997 through December 30, 1998 5.00
December 31, 1998 though December 30, 1999 4.00
Thereafter 3.00
(d) Section 7.03(a) of each of the Term Loan Agreement and the Note Backup
Agreement is amended to read as follows:
(a) Indebtedness of the Borrower under the Revolving Credit
Agreement, in aggregate principal amount not to exceed $75,000,000 or,
from and after the Extension Date, $225,000,000 (including any
extension, renewal or refinancing thereof made in compliance with
Section 7.11(b) hereof);
(e) Section 7.03(b) of each of the Revolving Credit Agreement and the Note
Backup Agreement is amended to read as follows:
(b) Indebtedness of the Borrower under the Term Loan
Agreement, in aggregate principal amount not to exceed $225,000,000
(but not any extensions, renewals or refinancings of any thereof);
provided,
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that this clause (b) shall cease to be in effect from and after the
fourth Business Day after the TASC Disposition;
(f) Section 7.03(d) of each Credit Facility is amended to read as follows:
(d) Indebtedness of the Borrower under the Senior Notes, in
aggregate principal amount not to exceed $112,000,000 (but not any
extensions, renewals or refinancings of any thereof); provided, that
this clause (d) shall cease to be in effect from and after the 61st day
after the TASC Disposition (except that after such 61st day this clause
(d) shall remain in effect as to any Senior Notes which have not been
tendered for redemption, provided that (x) the Borrower shall have
called all of the Senior Notes for redemption in accordance with the
terms thereof, (y) the Borrower's obligations under the Senior Notes
and the Senior Note Indenture shall have terminated pursuant to Section
8.1 of the Senior Note Indenture, and (z) pursuant to Section 2.8 of
the Senior Note Indenture none of the Senior Notes shall remain
outstanding);
(g) Section 7.05(l) of each Credit Facility is amended to read as follows:
(l) Cash Equivalent Investments and, after the Extension Date,
Intermediate Term Investments; provided, that aggregate investments in
Intermediate Term Investments shall not at any time exceed the lesser
of (x) 66% of aggregate investments in Cash Equivalent Investments or
(y) $40,000,000.
(h) Section 7.06(a)(i) of each Credit Facility is amended to read as follows:
(i) Repurchases under this Section 7.06(a) shall not exceed
(x) if the Extension Date has not occurred, $50,000,000 in the
aggregate from and after February 7, 1997, or (y) if the Extension Date
has occurred, $100,000,000 in the aggregate from and after the
Extension Date;
(i) Section 7.06(a)(iii) of each Credit Facility is amended to read as follows:
(iii) The Borrower would have been in compliance with Sections
7.01(a) and 7.01(c) on the last day of the fiscal quarter ending most
recently before such repurchase, after giving effect on a pro forma
basis to such repurchase and to any incurrence or acquisition of
Indebtedness after such day, as if such repurchase and such incurrence
or acquisition of Indebtedness had occurred on such day;
provided, that for the purpose of determining pro
forma compliance with Section 7.01(c), Section 7.01(c) shall
be applied as if it required the Consolidated Funded Debt
Ratio (Adjusted) for the four fiscal quarters ending on June
30, 1997 to be no greater than 5.75 and the Consolidated
Funded Debt Ratio (Adjusted) for the four fiscal quarters
ending on September 30, 1997 to be no greater than 5.50); and
further provided, that in the event that the TASC
Disposition has occurred and the Borrower desires to make a
repurchase before the end of the fiscal quarter in which the
TASC Disposition occurred, then
(x) for the purpose of determining pro forma
compliance with Section 7.01(a) with respect to such
repurchase, pro forma effect shall be given to the
TASC Disposition, as if the TASC Disposition had
occurred on the last day of the fiscal quarter ending
most recently before such repurchase; and
(y) for the purpose of determining pro forma
compliance with Section 7.01(c) with respect to such
repurchase, (i) Consolidated EBITDA Less Capital
Expenditures of TASC and its Subsidiaries shall be
excluded for the four fiscal quarters ending on the
last day of the fiscal quarter ending most recently
before such repurchase, and (ii) pro forma
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effect shall be given to any repayment of
Indebtedness from cash proceeds received by the
Borrower from the TASC Disposition before such
repurchase, as if such repayment had occurred on the
last day of the fiscal quarter ending most recently
before such repurchase (and for this purpose only,
the Senior Notes shall be treated as if they had been
redeemed on the date on or after consummation of the
TASC Disposition on which the Borrower gives notice
of redemption in full of the Senior Notes in
accordance with the Senior Note Indenture),
(j) Section 7.08(a) of each Credit Facility is amended to read as follows:
(a) A Subsidiary of the Borrower may (i) merge with or into or
consolidate with, or liquidate or dissolve into, any other Subsidiary
of the Borrower, provided, that the surviving or new entity is a Wholly
Owned Subsidiary of the Borrower, or (ii) merge into, or liquidate or
dissolve into, the Borrower, provided, that the surviving entity is the
Borrower, or (iii) in the case of a Wholly Owned Subsidiary of the
Borrower, acquire a substantial portion of the properties of the
Borrower, or acquire all or a substantial portion of the properties of
any other Subsidiary of the Borrower, or (iv) in the case of a Wholly
Owned Subsidiary of the Borrower, acquire from the Borrower or any
other Subsidiary of the Borrower any Shares of Capital Stock or other
equity interest owned by the Borrower or such other Subsidiary (it
being understood that, subject to the other provisions of the Loan
Documents, in the event that a Wholly Owned Subsidiary thus acquires
from the Borrower Shares of Capital Stock which constitute Collateral,
the Borrower may, pursuant to Section 2.04 of the Borrower Pledge
Agreement, request the Collateral Agent to release such Shares of
Capital Stock from the Lien in favor of the Collateral Agent); and
(k) Section 7.08(b) of each Credit Facility is amended by replacing the period
at the end thereof with "; and" and by appending thereto the following (which is
part of Section 7.08(b) but is further indented and spaced for ease of
readability):
further provided, that in the case of each such
acquisition as to which the Adjusted Acquisition Consideration
exceeds $12,000,000, the Borrower would have been in
compliance with Section 7.01(c) on the last day of the fiscal
quarter ending most recently before such acquisition, after
giving effect on a pro forma basis to any incurrence or
acquisition of Indebtedness after such day, as if such
incurrence or acquisition of Indebtedness had occurred on such
day; and
further provided, that in the event that the TASC
Disposition has occurred and the Borrower desires to make an
acquisition before the end of the fiscal quarter in which the
TASC Disposition occurred, then for the purpose of determining
pro forma compliance with Section 7.01(c) with respect to such
acquisition, (x) Consolidated EBITDA Less Capital Expenditures
of TASC and its Subsidiaries shall be excluded for the four
fiscal quarters ending on the last day of the fiscal quarter
ending most recently before such acquisition, and (y) pro
forma effect shall be given to any repayment of Indebtedness
from cash proceeds received by the Borrower from the TASC
Disposition before such acquisition, as if such repayment had
occurred on the last day of the fiscal quarter ending most
recently before such acquisition (and for this purpose only,
the Senior Notes shall be treated as if they had been redeemed
on the date on or after consummation of the TASC Disposition
on which the Borrower gives notice of redemption in full of
the Senior Notes in accordance with the Senior Note
Indenture); and
further provided, that the Borrower shall provide the
Agent, with a copy for each Lender, not later than the
Business Day after any acquisition as to which the Adjusted
Acquisition Consideration exceeds $12,000,000, a certificate
signed by a Responsible Officer of the Borrower, dated the
date of such acquisition, describing such acquisition,
certifying that such acquisition is in compliance with the
provisions of this Section 7.08(b), and including a statement
in reasonable
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detail of the information and calculations necessary to
establish compliance with this Section 7.08(b).
(l) Section 7.09 of each Credit Facility is amended by: (i) deleting the
semicolon at the end of subsection (b) and appending thereto the phrase ", all
in the ordinary course of business;", (ii) deleting the word "and" at the end of
subsection (e), (iii) redesignating existing subsection (f) to be subsection
(g), and (iv) inserting the following new subsection (f) immediately before such
subsection (g):
(f) The TASC Disposition; provided, that the TASC Disposition
shall have occurred not later than April 30, 1998; and further
provided, that the Borrower shall immediately notify the Agent upon the
consummation of the TASC Disposition; and further provided, that the
Borrower shall apply the proceeds of the TASC Disposition to redemption
of all of the Senior Notes as promptly as practicable following the
TASC Disposition and to payment in full of all Indebtedness under the
Term Loan Agreement in accordance with the terms of the Term Loan
Agreement (and pending such redemption or payment, shall hold an amount
at least equal to the amount necessary to make such redemptions and
payments in Cash Equivalent Investments), any balance of proceeds being
available for general corporate purposes; and".
(m) Section 7.12 of each Credit Facility is amended by deleting the word "and"
preceding clause (y), and by deleting the period at the end thereof and
appending the following: ", and (z) redeem the Senior Notes following the TASC
Disposition and repayment of all Indebtedness under the Term Loan Agreement."
(n) Section 8.01(l) of each Credit Facility is amended by deleting the
parenthetical at the end thereof and replacing it with the following: "(except
for principal payments and redemptions permitted by clause (x) or clause (z) of
Section 7.12 hereof)".
(o) Section 8.01(m) is amended by adding ")" after the term "Closing Date".
(p) Revolving Credit Agreement, Section 10.14 (c)(ii), is amended to read as
follows
(ii) if a Lender makes such an assignment of less than all of
its then remaining rights and obligations under this Agreement and the
other Loan Documents, such transferor Lender shall retain, after such
assignment, a minimum principal amount of $5,000,000 of the
Commitments, and after giving effect to such assignment the transferee
Lender shall have a minimum aggregate principal amount of $5,000,000 of
the Commitments,
(q) Term Loan Agreement, Section 10.14(c)(ii), is amended to read as follows:
(ii) if a Lender makes such an assignment of less than all of
its then remaining rights and obligations under this Agreement and the
other Loan Documents and under the Note Backup Agreement, such
transferor Lender shall retain, after such assignment (and any
concurrent assignment under the Note Backup Agreement), a minimum
principal amount of $5,000,000 under this Agreement and the Note Backup
Agreement in the aggregate, and after giving effect to such assignment
(and any concurrent assignment under the Note Backup Agreement) the
transferee Lender shall have a minimum principal amount of $5,000,000
under this Agreement and the Note Backup Agreement in the aggregate,
(r) Note Backup Agreement, Section 10.14(c)(ii), is amended to read as follows:
(ii) if a Lender makes such an assignment of less than all of
its then remaining rights and obligations under this Agreement and the
other Loan Documents and under the Term Loan Agreement, such transferor
Lender shall retain, after such assignment (and any concurrent
assignment under the Term Loan Agreement), a minimum principal amount
of $5,000,000 under this Agreement and the Term Loan
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Agreement in the aggregate, and after giving effect to such assignment
(and any concurrent assignment under the Term Loan Agreement) the
transferee Lender shall have a minimum principal amount of $5,000,000
under this Agreement and the Term Loan Agreement in the aggregate,
(s) In Annex A, Section 1.01 of each of the Credit Facilities, the definition of
"Consolidated Net Worth" is amended by deleting the phrase "(other than Cash
Equivalent Investments)" and replacing it with the phrase "(other than Cash
Equivalent Investments and Intermediate Term Investments)". In addition, the
definitions of "Consolidated Fixed Charge Coverage Ratio," "Consolidated Fixed
Charges," "Consolidated Funded Debt Ratio (Adjusted)" and "Consolidated Net
Worth (Adjusted)" are amended to read as follows, and the following new
definitions of "Intermediate Term Investment" and "TASC Disposition" are added
in their appropriate places in alphabetical order:
"Consolidated Fixed Charge Coverage Ratio" for any period
shall mean the ratio of the Consolidated EBITDA Less Capital
Expenditures for such period to the Consolidated Fixed Charges for such
period. For purposes of determining the Consolidated Fixed Charge
Coverage Ratio, Consolidated EBITDA Less Capital Expenditures of TASC
and its Subsidiaries shall be included for each fiscal quarter during
which TASC is a wholly-owned Subsidiary of the Borrower
(notwithstanding that the Borrower may have classified TASC as a
discontinued operation for such fiscal quarter as a consequence of the
proposed TASC Disposition).
"Consolidated Fixed Charges" for any period shall mean the sum
of (a) Consolidated Cash Interest Expense for such period, plus (b)
principal payments made by the Borrower and its Subsidiaries during
such period with respect to any outstanding Indebtedness (excluding (i)
payments of Indebtedness under the Revolving Credit Agreement, (ii)
prepayments made at the option of the Borrower of Indebtedness under
the Term Loan Agreement, to the extent the amounts so prepaid are not
otherwise due during such period, and (iii) payments of the Senior
Notes at the scheduled maturity thereof and payments of the Senior
Notes following the TASC Disposition), all as determined on a
consolidated basis in accordance with GAAP, plus (c) the sum of all
scheduled reductions of the "Revolving Credit Committed Amounts"
pursuant to Section 2.01(g) of the Revolving Credit Agreement during
such period (but if any such scheduled reduction is greater than
$15,000,000, then for purposes of this clause (c) such scheduled
reduction shall instead be deemed to be $15,000,000).
"Consolidated Funded Debt Ratio (Adjusted)" for any period
shall mean the following ratio: (a) the amount, not less than zero,
determined as of the last day of such period, equal to (i) Consolidated
Funded Indebtedness, minus (ii) the amount, not less than zero, equal
to (A) the amount of cash and Cash Equivalent Investments owned by the
Borrower and its Subsidiaries, valued at the lower of cost or market,
minus (B) $10,000,000, divided by (b) Consolidated EBITDA Less Capital
Expenditures for such period. For purposes of determining the
Consolidated Funded Debt Ratio (Adjusted) (x) on any date before the
date on which the TASC Disposition occurs, the Consolidated EBITDA Less
Capital Expenditures of TASC and its Subsidiaries shall be included for
each complete fiscal quarter during which TASC is a wholly-owned
Subsidiary of the Borrower (notwithstanding that the Borrower may have
classified TASC as a discontinued operation for such fiscal quarter as
a consequence of the proposed TASC Disposition), and (y) on any date on
or after the date on which the TASC Disposition occurs, Consolidated
EBITDA Less Capital Expenditures of TASC and its Subsidiaries shall be
excluded for all periods, whether before or after the date on which the
TASC Disposition occurs.
"Consolidated Net Worth (Adjusted)" at any time shall mean
Consolidated Net Worth at such time plus the lesser of (a) $50,000,000
(or, if the TASC Disposition has occurred before such time,
$330,000,000), or (b) the sum of aggregate writeoffs of goodwill or
other intangible assets on or after January 1, 1997 in accordance with
GAAP.
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13
"Intermediate Term Investments" shall mean any of the
following U.S. dollar denominated investments, to the extent acquired
for investment and not with a view to achieving trading profits: (a)
obligations fully backed by the full faith and credit of the United
States of America maturing not in excess of three years from the date
of acquisition, (b) the following obligations of any commercial bank or
trust company organized under the laws of the United States or any
state thereof having capital, surplus and undivided profits aggregating
in excess of $250,000,000, the long-term unsecured debt of which (or,
if such bank does not have an unsecured debt rating by Standard &
Poor's Ratings Group or Xxxxx'x Investors Service, Inc., the long-term
unsecured debt of such bank's parent holding company) is rated "BBB+"
or better by Standard & Poor's Ratings Group or "Baa1" or better by
Xxxxx'x Investors Service, Inc.: (i) time deposits, certificates of
deposit and acceptances maturing not in excess of three years from the
date of acquisition, or (ii) fully secured overnight repurchase
obligations for underlying securities of the type referred to in clause
(a) above, (c) freely tradeable and readily marketable corporate bonds,
notes or other debt securities rated "BBB+" or better by Standard &
Poor's Ratings Group or "Baa1" or better by Xxxxx'x Investors Service,
Inc., in each case maturing not later than three years from the date of
acquisition, (d) freely tradeable and readily marketable preferred
stock rated "BBB+" or better by Standard & Poor's Ratings Group or
"Baa1" or better by Xxxxx'x Investor Services, Inc., and (e)
investments in mutual funds whose investment guidelines restrict
substantially all of such funds' investments to those satisfying the
criteria set forth in the foregoing clauses (a) through (d) and in the
definition of "Cash Equivalent Investment." In no event shall any
investment as to which the Borrower or any Subsidiary of the Borrower
is an issuer or a direct or indirect obligor be deemed an Intermediate
Term Investment.
"TASC Disposition" means the sale by the Borrower of TASC and
its Subsidiaries for a cash purchase price not less than $430,000,000
(subject to closing adjustment as provided in the Stock Purchase
Agreement by and among Primark Corporation, Primark Holding
Corporation, Primark Information Services UK Limited, Xxxxxx Industries
and Xxxxxx U.K. Limited, dated as of December 8, 1997), and otherwise
on substantially the terms and conditions heretofore disclosed by the
Borrower to the Lenders;.
(t) Revolving Credit Agreement, Annex A, Section 1.01, definition of "Closing
Date", is amended to read as follows:
"Closing Date" shall mean February 7, 1997.
SECTION 5. AMENDMENTS TO THE COLLATERAL AGENCY AGREEMENT.
(a) Collateral Agency Agreement, Section 1.01, definition of "Cash Equivalent
Investments," is amended to read as follows:
"Cash Equivalent Investments" shall mean any of the following,
to the extent acquired for investment and not with a view to achieving
trading profits: (a) obligations fully backed by the full faith and
credit of the United States of America or sterling denominated debt
securities issued or guaranteed by the government of the United
Kingdom, in each case maturing not in excess of one year from the date
of acquisition, (b) commercial paper maturing not in excess of 180 days
from the date of acquisition and rated "P-1" by Xxxxx'x Investors
Service or "A-1" by Standard & Poor's Corporation on the date of
acquisition, (c) the following obligations of any commercial bank or
trust company having capital, surplus and undivided profits aggregating
in excess of $250,000,000 (or the equivalent thereof in foreign
currency), the long-term unsecured debt of which (or, if such bank does
not have an unsecured debt rating by Standard & Poor's Ratings Group or
Xxxxx'x Investors Service, Inc., the long-term unsecured debt of such
bank's parent holding company) is rated "A" or better by Standard &
Poor's Ratings Group or "A" or better by Xxxxx'x Investors Service,
Inc.: (i) time deposits, certificates of deposit and acceptances
maturing not in excess of 180 days from the date of acquisition, or
(ii) fully secured overnight repurchase obligations for underlying
securities of the type referred to in clause (a) above, (d) freely
tradeable and readily marketable money market preferred stock which,
pursuant to its terms, has a yield reset not less frequently than every
60 days and rated "AA" or better by Standard & Poor's Ratings Group or
"Aa" or better by Moody's
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14
Investors Service, Inc., (e) obligations issued or guaranteed by any
state, commonwealth or territory of the United States, or by any
political subdivision thereof, in each case maturing not in excess of
six months from the date of acquisition, and rated "A" or better by
Standard & Poor's Ratings Group or "A" or better by Xxxxx'x Investors
Service, Inc., (f) investments in mutual funds whose investment
guidelines restrict substantially all of such funds' investments to
those satisfying the criteria set forth in the foregoing clauses (a)
through (e), and (g) other investments designated in writing by the
Collateral Agent as being "Cash Equivalent Investments" for purposes of
this Agreement (it being understood that any such designation shall be
revocable by the Collateral Agent upon 60 days' notice to the
Borrower). In no event shall any investment as to which the Borrower or
any Subsidiary of the Borrower is an issuer or a direct or indirect
obligor be deemed a Cash Equivalent Investment.
(b) Collateral Agency Agreement, Section 1.01, definition of "Revolving Credit
Agreement," is amended by deleting the term "$75,000,000" and replacing it with
the term "$75,000,000 or, from and after the Extension Date, $225,000,000".
(c) Collateral Agency Agreement, Section 1.01, is amended by adding the
following new definition in its appropriate place in alphabetical order:
"Extension Date" shall have the meaning given that term in the
Revolving Credit Agreement.
SECTION 6. BORROWER PLEDGE AGREEMENT.
(a) For the avoidance of doubt, effective the instant immediately before
consummation of the TASC Disposition, any and all liens and security interests
in favor of the Collateral Agent under the Borrower Pledge Agreement in any and
all of the following shall, automatically and without further action on the part
of the Collateral Agent, be released: (i) all Shares of Capital Stock of TASC,
The Analytic Sciences Corporation Limited and their respective Subsidiaries, and
(ii) all property and assets of any kind or nature (including without limitation
all patents, copyrights, trademarks and other intellectual property) of TASC,
The Analytic Sciences Corporation Limited and their respective Subsidiaries.
(b) Section 4.05(a) of the Borrower Pledge Agreement is amended by deleting the
phrase "(other than Cash Equivalent Investments)" and replacing it with the
phrase "(other than Cash Equivalent Investments and Intermediate Term
Investments)".
SECTION 7. EFFECTIVENESS AND EFFECT, ETC.
(a) This Amendment shall become effective when Mellon Bank, N.A., as Agent under
each Credit Facility and as Collateral Agent, shall have received counterparts
hereof duly executed by the Borrower, by each of the "Lenders" and the "Agent"
under each Credit Facility, and by the Collateral Agent.
(b) The Revolving Credit Agreement, the Term Loan Agreement, the Note Backup
Agreement, the Collateral Agency Agreement and the Borrower Pledge Agreement, in
the forms initially executed and as amended hereby, are and shall continue to be
in full force and effect, and are hereby in all respects ratified and confirmed.
Except to the extent expressly set forth herein, the execution, delivery and
effectiveness of this Amendment shall not operate as a waiver of any right,
power or remedy under any of the foregoing agreements and instruments or
constitute a waiver of any provision of any of the foregoing agreements and
instruments. This Amendment is a cumulative amendment and, upon its
effectiveness, shall supersede the letter agreement dated February 21, 1997, the
Amendment to Transaction Documents dated as of May 1, 1997, the Amendment to
Transaction Documents dated as of June 30, 1997, and the
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Amendment to Transaction Documents dated as of December 1, 1997, which shall be
of no further force or effect.
SECTION 8. MISCELLANEOUS. This Amendment may be executed in any number of
counterparts and by the different parties hereto in separate counterparts, each
of which when so executed and delivered shall be deemed to be an original and
all of which taken together shall constitute but one and the same document.
Section and other headings herein are for reference purposes only and shall not
affect the interpretation of this Amendment in any respect. This Amendment shall
be governed by and construed in accordance with the laws of the Commonwealth of
Pennsylvania, without regard to choice of law rules. This Amendment is a
requested amendment within the meaning of Section 10.06(a) of each Credit
Facility.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
PRIMARK CORPORATION
By
-------------------------------
Name:
Title:
MELLON BANK, N.A.,
individually and as Agent under each
Credit Facility
By
-------------------------------
R. Xxxx Xxxxxxxx
Vice President
CONSENTED AND AGREED:
BANKBOSTON, N.A.
By
------------------------------
Name:
Title:
NATIONSBANK, N.A.
By
------------------------------
Name:
Title:
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XXXXXX GUARANTY TRUST COMPANY OF NEW YORK
By
-------------------------------
Name:
Title:
THE ROYAL BANK OF SCOTLAND, PLC
By
-------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK
By
-------------------------------
Name:
Title:
BANK OF TOKYO - MITSUBISHI TRUST COMPANY
By
-------------------------------
Name:
Title:
FIRST AMERICAN NATIONAL BANK
By
-------------------------------
Name:
Title:
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THE FUJI BANK, LIMITED
By
-------------------------------
Name:
Title:
WACHOVIA BANK, N.A.
By
-------------------------------
Name:
Title:
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18
EXHIBIT D
TO
REVOLVING CREDIT AGREEMENT
(EXTENSION DATE)
PRIMARK CORPORATION
OFFICER'S CERTIFICATE
The undersigned, an officer of Primark Corporation, a Michigan
corporation (the "Borrower"), hereby certifies on behalf of the Borrower as
follows:
1. This certificate is delivered to Mellon Bank, N.A., as
Agent, pursuant to Section 5.03 of the Revolving Credit Agreement dated as of
February 7, 1997 (as amended, modified or supplemented from time to time, the
"Revolving Credit Agreement") by and among the Borrower, the Lenders from time
to time parties thereto, the Issuing Banks referred to therein, and Mellon Bank,
N.A., as Agent. Capitalized terms used herein and not otherwise defined have the
meanings as ascribed to them in the Revolving Credit Agreement.
2. The Borrower desires the Extension Date to occur on the
date of this certificate.
3. On the date hereof, all of the conditions set forth in
Section 5.03 of the Credit Agreement have been satisfied. Without limiting the
generality of the foregoing:
(a) The TASC Disposition occurred on ___________, 1998.
(b) The Borrower has given notice to the trustee under the
Senior Note Indenture of redemption of all of the outstanding Senior
Notes, specifying as the "Redemption Date" a date not later than 60
days after the TASC Disposition.
(c) The Borrower has indefeasibly paid in full in cash all
Term Loan Obligations (other than Contingent Indemnification
Obligations), as such terms are defined in the Collateral Agency
Agreement. Such payment was made on the date of this certificate. The
Borrower has given a written notice pursuant to the final sentence of
Section 2.05 of the Collateral Agency Agreement to the Term Loan Agent
requesting the Term Loan Agent to give to the Collateral Agent the
notice contemplated by Section 2.05(b) of the Collateral Agency
Agreement.
(d) No Event of Default or Potential Default has occurred and
is continuing or exists on the date hereof or will occur or exist after
giving effect to the Extension Date. The aggregate Revolving Credit
Committed Amounts of the Lenders on the date hereof, before giving
effect to the increase in the Revolving Credit Committed Amounts
occurring on the Extension Date, is not less than $75,000,000.
Executed this_______________day of_________________, 1998.
PRIMARK CORPORATION
By:
__________________________
Name:
__________________________
Title:
__________________________
19
EXHIBIT E
TO
REVOLVING CREDIT AGREEMENT
FORM OF OPINION OF COUNSEL TO THE BORROWER (EXTENSION DATE)
[Extension Date]
To the Lenders, Issuing Banks and Agent
party to the Revolving Credit Agreement referred to below,
The Lenders and Agent
party to the Term Loan Agreement referred to below,
The Lenders, Issuing Bank and Agent
party to the Note Backup Agreement referred to below, and
Mellon Bank, N.A., as Collateral Agent
Ladies and Gentlemen:
I am the Executive Vice President, General Counsel and
Secretary of Primark Corporation, a Michigan corporation, (the "Borrower") and
have represented the Borrower in connection with: (a) the Revolving Credit
Agreement (the "Revolving Credit Agreement"), dated as of February 7, 1997, by
and among the Borrower, the Lenders parties thereto from time to time, the
Issuing Banks referred to therein and Mellon Bank, N.A., as Agent, (b) the Term
Loan Agreement (the "Term Loan Agreement"), dated as of February 7, 1997, by and
among the Borrower, the Lenders parties thereto from time to time, and Mellon
Bank, N.A., as Agent, (c) the Note Backup Agreement (the "Note Backup
Agreement") dated as of February 7, 1997, by and among the Borrower, the Lenders
parties thereto from time to time, the Issuing Bank referred to therein and
Mellon Bank, N.A., as Agent, and (d) the Collateral Agency Agreement (the
"Collateral Agency Agreement"), dated as of February 7, 1997, among the
Borrower, certain Revolving Credit Parties, certain Term Loan Parties, certain
Note Backup Parties and Mellon Bank, N.A., as Collateral Agent, (e) the Pledge
Agreement (the "Borrower Pledge Agreement"), dated as of February 7, 1997, made
by the Borrower in favor of Mellon Bank, N.A., as Collateral Agent, and (f) the
Agreement (the "Cumulative Amendment"), dated as of March 6, 1998, by and among
the Borrower, the Lenders party to the Revolving Credit Agreement, the Lenders
party to the Term Loan Agreement, the Lenders party to the Note Backup
Agreement, and Mellon Bank, N.A., as Agent under such Revolving Credit
Agreement, as Agent under such Term Loan Agreement, as Agent under such Note
Backup Agreement, and as Collateral Agent under the Collateral Agency Agreement.
Capitalized terms used herein and not otherwise defined shall have the same
meanings as in the Collateral Agency Agreement, as amended by the Cumulative
Amendment.
This opinion is being delivered pursuant to Section 5.03 of
the Revolving Credit Agreement, as amended by the Cumulative Amendment.
In connection with this opinion, I have examined originals or
copies, certified or otherwise identified to my satisfaction, of the following:
(i) the Revolving Credit Agreement, in the form initially
executed;
(ii) the Term Loan Agreement, in the form initially executed;
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(iii) the Note Backup Agreement, in the form initially
executed;
(iv) the Collateral Agency Agreement, in the form initially
executed;
(v) the Borrower Pledge Agreement, in the form initially
executed;
(vi) the following amendments to the Revolving Credit
Agreement, the Term Loan Agreement, the Note Backup Agreement, the
Collateral Agency Agreement, and/or the Borrower Pledge Agreement
(collectively, the "Prior Amendments"):
(A) the letter agreement dated February 21, 1997;
(B) the Amendment to Transaction Documents dated as of May 1,
1997;
(C) the Amendment to Transaction Documents dated as of June
30, 1997; and
(D) the Amendment to Transaction Documents dated as of
December 1, 1997;
(vii) the Revolving Credit Notes dated the date hereof and
issued to the Lenders under the Revolving Credit Agreement on the date
hereof pursuant to Section 5.03 of the Revolving Credit Agreement, as
amended by the Cumulative Amendment (the "Replacement Revolving Credit
Notes");
(viii) all material agreements and instruments to which the
Borrower or any Subsidiary of the Borrower is a party or by which any
of their respective properties may be subject or bound; and
(ix) such other documents and matters as I have deemed
necessary or appropriate to render the opinions set forth herein.
The Revolving Credit Agreement, the Term Loan Agreement, the
Note Backup Agreement, the Collateral Agency Agreement, and the Borrower Pledge
Agreement, each as amended by the Cumulative Amendment, and the Replacement
Revolving Credit Notes and the Cumulative Amendment, are collectively referred
to herein as the "Specified Documents".
In my examination I have assumed the genuineness of all
signatures (other than those on behalf of the Borrower), the legal capacity of
natural persons, the authenticity of all documents submitted to me as originals,
the conformity to original documents of all documents submitted to me as
certified or photostatic copies and the authenticity of the originals of such
copies. As to any facts material to the opinions expressed below which I did not
independently establish or verify, I have relied upon the statements and
representations of officers and other representatives of the Borrower and of
public officials.
I am admitted to the Bar of the State of Michigan, and I do
not express any opinion as to the laws of any jurisdiction other than the State
of Michigan and the federal laws of the United States of America.
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The opinions set forth below are subject to the following
qualifications:
(a) enforcement of the Specified Documents may be
limited by applicable bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium or other similar laws
affecting creditors' rights generally and by general
principles of equity (regardless of whether enforcement is
sought in equity or at law);
(b) certain of the remedial provisions including
waivers, with respect to the exercise of remedies against the
collateral contained in the Borrower Pledge Agreement, as
amended, may be unenforceable in whole or in part, but the
inclusion of such provisions does not affect the validity of
the Shared Security Documents, taken as a whole, and the
Shared Security Documents, taken as a whole, together with
applicable law, contains adequate provisions for the practical
realization of the benefits of the security created thereby;
(c) I express no opinion as to the effect on the
opinions expressed herein of (i) the compliance or
non-compliance of the Collateral Agent, the Agent, any of the
Lenders or any of the other Secured Parties with any state,
federal or other laws or regulations applicable to them or
(ii) the legal or regulatory status or the nature of the
business of the Collateral Agent, the Agent, any of the
Lenders or any of the other Secured Parties;
(d) I express no opinion as to the enforceability of
any rights to contribution or indemnification provided for in
the Specified Documents which are violative of the public
policy underlying any law, rule or regulation (including any
federal or state securities law, rule or regulation);
(e) I express no opinion as to the enforceability of
(i) any provision of any Specified Document to the extent it
authorizes or permits any party to any Specified Document or
any purchaser of a participation interest from any such party
to set-off or apply any deposit, property or indebtedness with
respect to any participation interest or (ii) any provision of
any Specified Document to the extent it purports to waive any
objection a Person may have that a suit, action or proceeding
has been brought in an inconvenient forum;
(f) enforcement of the Shared Security Documents
against the rights of the Borrower in instruments, leases or
contracts may be subject to the terms of such instruments,
leases or contracts or other arrangements between the Borrower
and the other parties to such agreements, the rights of such
other parties and any claims or defenses of such other parties
against the Borrower arising under or outside such
instruments, leases or contracts or other agreements; and
(g) I have assumed that the Specified Documents are
the legal, valid and binding obligations of each party thereto
other than the Borrower, enforceable against each such party
thereto in accordance with its terms.
Based upon and subject to the foregoing, I am of the opinion
that:
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1. The Borrower is a corporation duly organized, validly
existing and in good standing under the laws of the State of Michigan. The
Borrower has corporate power and authority to own its property and to transact
the business in which it is engaged or presently proposes to engage. The
Borrower is duly qualified to do business as a foreign corporation and is in
good standing in the Commonwealths of Massachusetts and Virginia.
2. The Borrower has corporate power and authority to execute,
deliver, perform, and take all actions contemplated by, the Specified Documents,
and all such action has been duly and validly authorized by all necessary
corporate proceedings on its part. Without limitation of the foregoing, the
Borrower has the corporate power and authority to borrow and request Letters of
Credit (as defined in the Specified Documents) to be issued pursuant to the
Specified Documents to the fullest extent permitted thereby from time to time,
and has taken all necessary corporate action to authorize such borrowings and
requests for issuance of Letters of Credit.
3. Each of the Specified Documents has been duly and validly
executed and delivered by the Borrower.
4. No Federal or Michigan Governmental Action is or will be
necessary in connection with execution and delivery of the Specified Documents,
performance of or compliance with the terms of the Specified Documents, or to
ensure the legality, validity, binding effect, enforceability or admissibility
in evidence of the Specified Documents, except for the matters set forth in
Section 4.04 of each of the Revolving Credit Agreement, the Term Loan Agreement
and the Note Backup Agreement, as the same have been respectively amended by the
Cumulative Amendment.
5. Neither the execution and delivery of the Specified
Documents, nor performance of or compliance with the terms and conditions of the
Specified Documents by the Borrower, does or will
(a) violate or conflict with any Federal or Michigan Law, or
(b) violate or conflict with, or constitute a default under,
or result in (or give rise to any right, contingent or other, of any
Person to cause) any termination, cancellation, prepayment or
acceleration of performance of, or result in the creation or imposition
of (or give rise to any obligation, contingent or other, to create or
impose) any Lien upon any property of the Borrower or any Subsidiary of
the Borrower (except for any Lien in favor of the Collateral Agent
securing the Obligations) pursuant to, (i) the articles of
incorporation or by-laws (or other constitutional documents) of the
Borrower or any Subsidiary of the Borrower, or (ii) any judicial or
administrative order, judgment, injunction or decree, any material
agreement or instrument (including without limitation the Senior Note
Indenture), or to my knowledge after due inquiry any other agreement or
instrument, to which the Borrower or any Subsidiary of the Borrower is
a party or by which any of their respective properties may be subject
or bound.
6. To the best of my knowledge, there is no pending or
threatened action, suit, proceeding or investigation by or before any
Governmental Authority against or affecting the Borrower or any Subsidiary of
the Borrower, except for matters that if adversely decided, individually or in
the aggregate, do not, and would not be likely to, have a Material Adverse
Effect (as defined in the Specified Documents).
7. In the event that a Michigan court were to apply the
substantive laws of the State of Michigan, notwithstanding the choice of law of
the parties set forth in the Specified Documents and the
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limited nature of contacts within the State of Michigan, each of the Specified
Documents constitutes a valid and binding obligation of the Borrower,
enforceable against the Borrower in accordance with its terms. I call to your
attention that the Specified Documents are governed by the laws of the
Commonwealth of Pennsylvania, and I express no opinion as to whether a Michigan
court would apply the substantive laws of the State of Michigan to such
documents.
8. The Borrower is not an "investment company" under the
Investment Company Act of 1940, as amended.
9. The Borrower is not a "holding company," or a "public
utility company" within the meaning of the Public Utility Holding Company Act of
1935, as amended.
This opinion is being furnished to you and is solely for your
benefit in connection with the Specified Documents and the transactions
contemplated by the foregoing, except that it may be relied upon by any person
which becomes a Participant or Secured Party as if it were addressed to such
person and delivered on the date hereof.
Very truly yours,
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