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Exhibit 10.20
AMENDMENT TO TRANSACTION DOCUMENTS
THIS AMENDMENT, dated as of October 23, 1996, 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 ICV Credit Agreement
referred to below, and MELLON BANK, N.A., a national banking association, as
Agent under such Revolving Credit Agreement, as Agent under such Term Loan
Agreement, as Agent under such ICV Credit Agreement, and as Collateral Agent
under the Collateral Agency Agreement referred to below.
RECITALS:
A. The Borrower has entered into (a) a Revolving Credit Agreement (as
amended, the "Revolving Credit Agreement") dated as of June 29, 1995 among
Primark Corporation (the "Borrower"), the Issuing Banks referred to therein, the
Lenders parties thereto from time to time, Mellon Bank, N.A., The First National
Bank of Boston, and NationsBank, N.A. (Carolinas), as Co-Agents, and Mellon
Bank, N.A., as Agent, (b) a Term Loan Agreement (as amended, the "Term Loan
Agreement") dated as of June 29, 1995 among the Borrower, the Lenders parties
thereto from time to time, Mellon Bank, N.A., The First National Bank of Boston
and NationsBank, N.A., (Carolinas), as Co-Agents, and Mellon Bank, N.A., as
Agent, (c) a Collateral Agency Agreement (as amended, the "Collateral Agency
Agreement") dated as of June 29, 1995 among the Borrower, the Revolving Credit
Parties (as defined therein), the Term Loan Parties (as defined therein) and
Mellon Bank, N.A. as Collateral Agent, and (d) a Security Agreement (as amended,
the "Security Agreement") dated as June 29, 1995 made by the Borrower in favor
of Mellon Bank, N.A., as Collateral Agent. The Revolving Credit Agreement, the
Term Loan Agreement, the Collateral Agency Agreement, and/or the Security
Agreement have been amended by (i) a letter agreement dated August 8, 1995
(which, among other things, added NationsBank, N.A. (Carolinas) as Co-Agent to
the Revolving Credit Agreement and the Term Loan Agreement as initially
constituted), (ii) an Amendment to Transaction Documents dated as of Xxxxx 00,
0000, (xxx) an Amendment to Transaction Documents dated as of June 27, 1996, and
(iv) an Amendment to Transaction Documents dated as of September 30, 1996.
B. The parties hereto desire to amend further the Revolving Credit
Agreement, the Term Loan Agreement, the Collateral Agency Agreement and the
Security Agreement as set forth in this Amendment. 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. AMENDMENTS TO THE REVOLVING CREDIT AGREEMENT AND THE TERM LOAN
AGREEMENT.
(a) Section 7.03 of each of the Revolving Credit Agreement and the Term
Loan Agreement is hereby amended by deleting the existing clause (q), by adding
the following new clauses (q), (r), and (s) immediately after clause (p), and by
deleting the word "and" following clause (p):
(q) Indebtedness of a TWN(UK) Entity permitted under Section 7.19(b)
hereof;
(r) Indebtedness of the Borrower or any of its Subsidiaries not
exceeding $10,000,000 in principal amount, issued in connection with the
acquisition by the Borrower or a Subsidiary of all of the Shares of Capital
Stock of ICV (such Indebtedness being referred to herein as the "ICV
Notes"); Indebtedness of the Borrower pursuant to the ICV Credit Agreement
(as defined in the
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Collateral Agency Agreement) constituting letters of credit issued for its
account not exceeding $10,250,000 in stated amount, which letters of credit
effectively secure the ICV Notes; and any Indebtedness of the Borrower or
any of its Subsidiaries which amends, renews or refinances the ICV Notes
and the ICV Credit Agreement, provided, however, that after giving effect
to such refinancing the principal amount of Indebtedness is not increased;
and
(s) Indebtedness for borrowed money of Primark Economics or any of its
Subsidiaries not exceeding $6,000,000 in aggregate principal amount at any
time outstanding.
(b) Section 7.04(h) of each of the Revolving Credit Agreement and the Term
Loan Agreement is hereby amended by deleting the phrase", and Guaranty
Equivalents of Primark Economics permitted under Section 7.20(c) hereof".
(c) Section 7.14 of each of the Revolving Credit Agreement and the Term
Loan Agreement is hereby deleted and replaced with the word "[Reserved]".
(d) Section 7.16 of each of the Revolving Credit Agreement and the Term
Loan Agreement is hereby amended by deleting the word "and" immediately before
clause (b), deleting the period at the end thereof and appending thereto the
following:", and (c) provisions in the ICV Credit Agreement no more restrictive
than those in the ICV Credit Agreement as originally constituted".
(e) Section 7.20 of each of the Revolving Credit Agreement and the Term
Loan Agreement is hereby deleted and replaced with the word "[Reserved]".
(f) The following defined terms are hereby added to Section 1.01 of Annex A
of each of the Revolving Credit Agreement and the Term Loan Agreement in their
appropriate places in alphabetical order (and, in the case of the terms "Credit
Facilities," "Facilities Termination Date," and "Primark Economics" which were
previously defined, the previous definition of such term is deleted):
"Credit Facilities" shall mean the Revolving Credit Agreement, the
Term Loan Agreement, the ICV Credit Agreement and the TASC Loan Agreement.
"Facilities Termination Date" shall mean the later to occur of the
Revolving Credit Maturity Date, the Term Loan Maturity Date and the ICV
Credit Maturity Date.
"Primark Economics" shall mean Primark Decision Economics, Inc.
"ICV" shall mean ICV Limited.
"ICV Credit Agreement" shall mean the Credit Agreement dated on or
about October 23, 1996 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, as the same may be amended, modified or supplemented
from time to time in accordance with this Agreement.
"ICV Credit Maturity Date" shall mean the final scheduled maturity of
Indebtedness under the ICV Credit Agreement (being the later of (i) the
latest expiration date permitted under the ICV Credit Agreement for letters
of credit issued thereunder, or (ii) the final scheduled maturity of the
Borrower's reimbursement obligations under the ICV Credit Agreement).
SECTION 2. AMENDMENTS TO THE COLLATERAL AGENCY AGREEMENT.
(a) Mellon Bank, N.A., as ICV Credit Agent (as defined hereinbelow) on
behalf of the ICV Credit Parties (as defined hereinbelow), hereby agrees that
the ICV Credit Parties hereby become
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parties to the Collateral Agency Agreement, and shall be subject to and bound by
all of the provisions thereof and of the other Shared Security Documents
referred to therein.
(b) The following defined terms are hereby added to Section 1.01 of the
Collateral Agency Agreement in their appropriate places in alphabetical order
(and, in the case of the terms "Directing Party," "Facility Agents," "Facility
Event of Default," "Facility Lenders," "Facility Lender Exposure," "Facility
Parties," "Facility Permitted Lien," "Notice of Default," "Obligations,"
"Revolving Credit Agreement," "Secured Party Documents" and "Term Loan
Agreement," each of which was previously defined, the previous definitions of
such terms are deleted):
"Directing Party" at any time shall mean:
(a) the Term Loan Agent, if at such time (i) a Term Loan Notice
of Default is in effect, at least 15 Business Days have elapsed since
the giving of such Term Loan Notice of Default, and no Revolving
Credit Notice of Default, ICV Credit Notice of Default or Bankruptcy
Default is in effect, or (ii) (A) all Revolving Credit Obligations
(other than Contingent Indemnification Obligations) have been paid in
full, all commitments to extend credit under the Revolving Credit
Documents have terminated, and all Letters of Credit have terminated,
and (B) all ICV Credit Obligations (other than Contingent
Indemnification Obligations) have been paid in full, all commitments
to extend credit under the ICV Credit Documents have terminated, and
all ICV LOCs have terminated;
(b) the Revolving Credit Agent, if at such time (i) a Revolving
Credit Notice of Default is in effect, at least 15 Business Days have
elapsed since the giving of such Revolving Credit Notice of Default,
and no Term Loan Notice of Default, ICV Credit Notice of Default or
Bankruptcy Default is in effect, or (ii) (A) all Term Loan Obligations
(other than Contingent Indemnification Obligations) have been paid in
full, and (B) all ICV Credit Obligations (other than Contingent
Indemnification Obligations) have been paid in full, all commitments
to extend credit under the ICV Credit Documents have terminated, and
all ICV LOCs have terminated;
(c) the ICV Credit Agent, if at such time (i) an ICV Credit
Notice of Default is in effect, at least 15 Business Days have elapsed
since the giving of such ICV Credit Notice of Default, and no Term
Loan Notice of Default, Revolving Credit Notice of Default or
Bankruptcy Default is in effect, or (ii) (A) all Term Loan Obligations
(other than Contingent Indemnification Obligations) have been paid in
full, and (B) all Revolving Credit Obligations (other than Contingent
Indemnification Obligations) have been paid in full, all commitments
to extend credit under the Revolving Credit Documents have terminated,
and all Letters of Credit have terminated;
(d) all Swap Parties, acting together, if at such time (i) all
Term Loan Obligations (other than Contingent Indemnification
Obligations) have been paid in full, (ii) all Revolving Credit
Obligations (other than Contingent Indemnification Obligations) have
been paid in full, all commitments to extend credit under the
Revolving Credit Documents have terminated, and (iii) all Letters of
Credit have terminated, all ICV Credit Obligations (other than
Contingent Indemnification Obligations) have been paid in full, all
commitments to extend credit under the ICV Credit Documents have
terminated, and all ICV LOCs have terminated;
(e) otherwise, Facility Lenders whose Facility Lender Percentages
at such time aggregate at least 51%, acting together.
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"Facility Agents" shall mean the Revolving Credit Agent, the Term Loan
Agent and the ICV Credit Agent.
"Facility Event of Default" shall mean the occurrence or existence of
an "Event of Default" under the Revolving Credit Agreement, the Term Loan
Agreement or the ICV Credit Agreement.
"Facility Lenders" shall mean the Revolving Credit Lenders, the Term
Loan Lenders and the ICV Credit Lenders.
"Facility Lender Exposure" for a Facility Lender at any time shall
mean the sum of the following: (a) the principal amount of loans
outstanding to such Facility Lender under the Term Loan Agreement, plus (b)
the principal amount of extensions of credit made by or for the account of
such Facility Lender under the Revolving Credit Agreement, plus (c) the
amount equal to (i) if no Revolving Credit Notice of Default or Bankruptcy
Default is in effect, and if the commitment of such Facility Lender to
extend credit under the Revolving Credit Agreement has not expired or been
terminated, then an amount equal to the principal amount of such Facility
Lender's unborrowed commitment to extend credit under the Revolving Credit
Agreement, (ii) otherwise, zero, plus (d) the principal amount of
extensions of credit made by or for the account of such Facility Lender
under the ICV Credit Agreement.
"Facility Parties" shall mean the Revolving Credit Parties, the Term
Loan Parties, the ICV Credit Parties and the Swap Parties.
"Facility Permitted Lien" shall mean a Lien which is a "Permitted
Lien" under each of the Revolving Credit Agreement, the Term Loan Agreement
and the ICV Credit Agreement.
"ICV Credit Agent" at any time shall mean the "Agent" under the ICV
Credit Agreement at such time. If there is no Agent under the ICV Credit
Agreement at such time, then any notice, demand, or other communication
required or permitted to be given by the ICV Credit Agent hereunder or
under any Shared Security Document shall be sufficiently given or made if
given by the "Required Lenders" (as defined in the ICV Credit Agreement as
constituted on the date hereof, as such definition may be amended, modified
or supplemented from time to time, and any successor term of similar import
from time to time in the ICV Credit Agreement), and any notification,
demand, consent, document, payment or other communication or item required
to be given or made to the ICV Credit Agent shall be sufficiently given or
made if given directly to each ICV Credit Party entitled thereto.
"ICV Credit Agreement" shall mean the Credit Agreement dated on or
about October 23, 1996 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, as the same may be amended, modified or supplemented
from time to time; provided, however, that for purposes of this Agreement
no effect shall be given to any amendment, modification or supplement
entered into without the written consent of the Revolving Credit Agent and
the Term Loan Agent that increases the maximum aggregate principal amount
of extensions of credit thereunder to the Borrower above $10,250,000.
"ICV Credit Documents" shall mean the "Loan Documents" as defined in
the ICV Credit Agreement, and any successor term of similar import from
time to time in the ICV Credit Agreement.
"ICV Credit Issuing Bank" shall mean the "Issuing Banks" (as defined
in the ICV Credit Agreement) under the ICV Credit Agreement, together with
its successors thereunder.
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"ICV Credit Lenders" shall mean the "Lenders" (as defined in the ICV
Credit Agreement) from time to time under the ICV Credit Agreement.
"ICV Credit Notice of Default" shall mean a written certification
delivered to the Collateral Agent by the ICV Credit Agent at any time
stating that a Facility Event of Default or Facility Potential Default (as
specified therein) has occurred and is continuing or exists under the ICV
Credit Agreement, and specifically stating that such notice is a "ICV
Credit Notice of Default" under this Agreement.
"ICV Credit Obligations" shall mean all obligations from time to time
of the Borrower to any ICV Credit Party from time to time arising under or
in connection with or related to or evidenced by or secured by the ICV
Credit Agreement or any other ICV Credit Document, whether such obligations
are direct or indirect, otherwise secured or unsecured, joint or several,
absolute or contingent, due or to become due, whether for payment or
performance, now existing or hereafter arising (specifically including but
not limited to obligations arising or accruing after the commencement of
any bankruptcy, insolvency or similar proceedings with respect to the
Borrower, or which would have arisen or accrued but for the commencement of
such proceeding, even if the claim for such obligation is not allowed in
such proceeding under applicable Law). Without limitation of the foregoing,
such obligations include the principal amount of loans, interest, ICV
Credit reimbursement obligations, and fees, indemnities or expenses under
or in connection with any ICV Credit Document. ICV Credit Obligations shall
remain such notwithstanding any assignment or transfer or any subsequent
assignment or transfer of any of the ICV Credit Obligations or any interest
therein.
"ICV Credit Parties" shall mean the ICV Credit Lenders, the ICV Credit
Issuing Bank and the ICV Credit Agent.
"ICV LOC" shall mean any letter of credit outstanding under the ICV
Credit Agreement from time to time.
"ICV LOC Collateral Account" shall have the meaning given that term in
Section 4.09 hereof.
"ICV LOC Exposure" at any time shall mean the sum at such time of (a)
the aggregate ICV LOC Unreimbursed Draws and (b) the aggregate ICV LOC
Undrawn Availability.
"ICV LOC Undrawn Availability" with respect to an ICV LOC at any time
shall mean the maximum amount available to be drawn under such ICV LOC at
such time or thereafter, regardless of the existence or satisfaction of any
conditions or limitations on drawing.
"ICV LOC Unreimbursed Draws" with respect to a ICV LOC at any time
shall mean the aggregate amount at such time of all payments made by the
issuer under such ICV LOC, to the extent not repaid by the Borrower.
"Notice of Default" shall mean a Revolving Credit Notice of Default, a
Term Loan Notice of Default or an ICV Credit Notice of Default.
"Obligations" shall mean all Revolving Credit Obligations, Term Loan
Obligations, ICV Credit Obligations, Swap Obligations, and Collateral Agent
Obligations.
"Revolving Credit Agreement" shall mean the Revolving Credit Agreement
of even date herewith by and among the Borrower, the lenders parties
thereto from time to time, the issuing banks referred to therein, Mellon
Bank, N.A. and The First National Bank of Boston, as
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Co-Agents, and Mellon Bank, N.A., as Agent, as the same may be amended,
modified, supplemented, renewed or refinanced from time to time; provided,
however, that for purposes of this Agreement no effect shall be given to
any amendment, modification, supplement, renewal or refinancing entered
into without the written consent of the Term Loan Agent and the ICV Credit
Agent that increases the maximum aggregate principal amount of extensions
of credit thereunder to the Borrower (whether in the form of loans, Letters
of Credit or otherwise) above $75,000,000.
"Secured Party Documents" shall mean the Revolving Credit Documents,
the Term Loan Documents, the ICV Credit Documents and the Swap Documents,
including the Shared Security Documents.
"Term Loan Agreement" shall mean the Term Loan Agreement of even date
herewith by and among the Borrower, the lenders parties thereto from time
to time, Mellon Bank, N.A., and The First National Bank of Boston, as
Co-Agents, and Mellon Bank, N.A., as Agent, as the same may be amended,
modified or supplemented from time to time; provided, however, that for
purposes of this Agreement no effect shall be given to any amendment,
modification or supplement entered into without the written consent of the
Revolving Credit Agent and the ICV Loan Agent that increases the principal
amount outstanding thereunder.
(c) Section 2.01 of the Collateral Agency Agreement is hereby amended as
follows: (i) in Section 2.01(a), the phrase "either Facility Agent" is replaced
with the phrase "a Facility Agent" in each place in which it appears, (ii) in
Section 2.01(a) and 2.02(b), the phrase "the other Facility Agent" is replaced
with the phrase "the other Facility Agents" in each place in which it appears,
and (iii) in Section 2.01(c), the phrase "both Facility Agents" is replaced with
the phrase "each Facility Agent".
(d) Section 2.03 of the Collateral Agency Agreement is hereby amended by
adding the following new subsection (c):
(c) AMENDMENTS TO AND REFINANCING OF THE ICV CREDIT AGREEMENT. The
provisions of this Agreement shall remain in full force and effect as
applied to any amendment, modification or supplement to the ICV Credit
Agreement, provided that the ICV Credit Agreement as so amended, modified
or supplemented remains a "ICV Credit Agreement" as defined herein.
(e) Section 2.04 of the Collateral Agency Agreement is hereby amended by
deleting the phrase "the Revolving Credit Agreement, the Term Loan Agreement or
the Swap Agreement" and replacing it with the phrase "the Revolving Credit
Agreement, the Term Loan Agreement, the ICV Credit Agreement or the Swap
Agreement".
(f) Section 2.05 of the Collateral Agency Agreement is hereby amended by
deleting the word "or" following clause (b) thereof, adding the word "or"
immediately after clause (c) thereof, and adding the following new clause (d)
immediately after such clause (c):
(d) in the case of the ICV Credit Parties, a written notice from the
ICV Credit Agent to the effect that (i) the Liens created hereby and by the
other Shared Security Documents are to be released and discharged with
respect to the ICV Credit Parties, or (ii) all commitments to extend credit
under the ICV Credit Documents have terminated, all ICV LOCs have
terminated, and all ICV Credit Obligations (other than Contingent
Indemnification Obligations) have been indefeasibly paid in full in cash;
In addition, the final sentence of Section 2.05 is hereby amended to read as
follows: "The Revolving Credit Agent, the Term Loan Agent, each Swap Party, and
the ICV Credit Agent, respectively, shall deliver to the Collateral Agent
written notice to the effect set forth in clause (a)(ii), (b)(ii), (c)(ii), and
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(d)(ii), respectively, promptly after receiving written request to do so by the
Borrower after the conditions described in such clause are satisfied."
(g) Section 4.04 of the Collateral Agency Agreement is hereby amended
by deleting items "Second," "Third," "Fourth", "Fifth" and "Finally" and
replacing them with the following, respectively:
Second: to (a) the Revolving Credit Agent, for the payment of all
amounts due to the Revolving Credit Agent in its capacity as such
which are unpaid on such distribution date, (b) the Term Loan Agent,
for the payment of all amounts due to the Term Loan Agent in its
capacity as such which are unpaid on such distribution date, and (c)
the ICV Credit Agent, for the payment of all amounts due to the ICV
Credit Agent in its capacity as such which are unpaid on such
distribution date; provided, that if such monies to be distributed by
the Collateral Agent shall be insufficient to pay in full the amounts
referred to in the foregoing clauses (a), (b) and (c), then such
distribution shall be made ratably (without priority of any one over
any other) to the Revolving Credit Agent, the Term Loan Agent and the
ICV Credit Agent in proportion to the respective amounts referred to
in the foregoing clauses (a), (b) and (c) on such distribution date;
Third: to (a) the Revolving Credit Agent, for the account of the
Revolving Credit Parties, in an amount equal to all amounts due and
payable to the Revolving Credit Parties on such distribution date with
respect to Revolving Credit Obligations (including obligations to pay
Letter of Credit Unreimbursed Draws and to provide cash collateral for
outstanding undrawn Letters of Credit, but only to the extent the
aggregate Letter of Credit Exposure exceeds the amount on deposit in
the Letter of Credit Collateral Account) (to the extent not paid
pursuant to item "Second" above), (b) the Term Loan Agent, for the
account of the Term Loan Parties, in an amount equal to all amounts
due and payable to the Term Loan Parties on such distribution date
with respect to Term Loan Obligations (to the extent not paid pursuant
to item "Second" above), (c) the ICV Credit Agent, for the account of
the ICV Credit Parties, in an amount equal to all amounts due and
payable to the ICV Credit Parties on such distribution date with
respect to ICV Credit Obligations (including obligations to pay ICV
LOC Unreimbursed Draws and to provide cash collateral for outstanding
undrawn ICV LOCs, but only to the extent the aggregate ICV LOC
Exposure exceeds the amount on deposit in the ICV LOC Collateral
Account) (to the extent not paid pursuant to item "Second" above), and
(d) each Swap Party, in an amount (calculated separately for each Swap
Agreement to which such Swap Party is party) equal to the lesser of
(i) all amounts due and payable to the Swap Party on such distribution
date with respect to Swap Obligations under or in connection with such
Swap Agreement or (ii) the Swap Shared Security Cap for such Swap
Agreement minus the aggregate amount of all distributions previously
made from time to time to the Swap Party with respect to Swap
Obligations under or in connection with such Swap Agreement pursuant
to this item "Third"; provided, that if such moneys to be distributed
by the Collateral Agent shall be insufficient to pay in full the
amounts referred to in the foregoing clauses (a), (b), (c) and (d),
then such distribution shall be made ratably (without priority of any
one over any other) to the Revolving Credit Agent, the Term Loan
Agent, the ICV Credit Agent and the Swap Parties in proportion to the
respective amounts referred to in the foregoing clauses (a), (b), (c)
and (d) on such distribution date; and further provided, that no
further distributions shall be made under this item "Third" to a Swap
Party on account of Swap Obligations under or in connection with a
particular Swap Agreement once the aggregate amount of all
distributions made from time to time to such Swap Party on account of
Swap Obligations under or in connection with such Swap Agreement
pursuant to clause (d) of this item "Third" shall equal the Swap
Shared Security Cap for such Swap Agreement; and further provided,
that no further distributions shall be made under this item "Third"
once the aggregate amount of all distributions made from time to time
pursuant to clause (c) of this item "Third" to each Swap Party on
account of the Swap Obligations under or in connection with each Swap
Agreement shall equal the Swap Shared Security Cap for such Swap
Agreement'
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Fourth: to (a) the Revolving Credit Agent, for the account of the
Revolving Credit Parties, in an amount equal to all amounts due and
payable to the Revolving Credit Parties on such distribution date with
respect to Revolving Credit Obligations (including obligations to pay
Letter of Credit Unreimbursed Draws and to provide cash collateral for
outstanding undrawn Letters of Credit, but only to the extent the
aggregate Letter of Credit Exposure exceeds the amount on deposit in
the Letter of Credit Collateral Account) (to the extent not paid
pursuant to items "Second" and "Third" above), (b) the Term Loan
Agent, for the account of the Term Loan Parties, in an amount equal to
all amounts due and payable to the Term Loan Parties on such
distribution date with respect to Term Loan Obligations (to the extent
not paid pursuant to items "Second" and "Third" above), and (c) the
ICV Credit Agent, for the account of the ICV Credit Parties, in an
amount equal to all amounts due and payable to the ICV Credit Parties
on such distribution date with respect to ICV Credit Obligations
(including obligations to pay ICV LOC Unreimbursed Draws and to
provide cash collateral for outstanding undrawn ICV LOCs, but only to
the extent the aggregate ICV LOC Exposure exceeds the amount on
deposit in the ICV LOC Collateral Account) (to the extent not paid
pursuant to items "Second" and "Third" above); provided, that if such
moneys to be distributed by the Collateral Agent shall be insufficient
to pay in full the amounts referred to in the foregoing clauses (a),
(b) and (c), then such distribution shall be made ratably (without
priority of any one over any other) to the Revolving Credit Agent and
the Term Loan Agent in proportion to the respective amounts referred
to in the foregoing clauses (a), (b) and (c) on such distribution
date;
Fifth: to each Swap Party, in an amount equal to all amounts due
and payable to the Swap Party on such distribution date with respect
to Swap Obligations (to the extent not paid pursuant to item "Third"
above); provided, that if such moneys to be distributed by the
Collateral Agent shall be insufficient to pay in full the amounts
referred to in the foregoing clause, then such distribution shall be
made ratably (without priority of any one over any other) to the Swap
Parties in proportion to the respective amounts referred to in the
foregoing clause on such distribution date; and
Finally: if all Revolving Credit Obligations, Term Loan
Obligations, ICV Credit Obligations and Swap Obligations (other than,
in each case, Contingent Indemnification Obligations) shall have been
indefeasably paid in full in cash, all commitments to extend credit
under the Revolving Credit Agreement shall have terminated, all
outstanding Letters of Credit shall have terminated, all commitments
to extend credit under the ICV Credit Agreement shall have terminated,
all outstanding ICV LOCs shall have terminated, and all Interest Rate
Hedge Agreements under the Swap Documents have terminated, any surplus
then remaining shall be paid to the Borrower or its successors or
assigns or to whomsoever may be lawfully entitled to receive the same
or as a court of competent jurisdiction may direct.
(h) Section 4.05 of the Collateral Agency Agreement is amended to read
as follows:
4.05. CALCULATIONS. In making the determinations and allocations
required by Section 4.04 hereof, the Collateral Agent may rely upon
information supplied by (a) the Revolving Credit Agent, as to the
amounts described in clause (a) of item "Second",clause (a) of item
"Third", and clause (a) of item "Fourth", (b) the Term Loan Agent, as
to the amounts described in clause (b) of item "Second", clause (b) of
item "Third", and clause (b) of item "Fourth", (c) the ICV Credit
Agent, as to the amounts described in clause (c) of item "Second",
clause (c) of item "Third" and clause (c) of item "Fourth" and (d)
each Swap Party, as to the amounts described in clause (d) of item
"Third" and item "Fifth", and the Collateral Agent shall have no
liability to any Secured Party for actions taken in reliance on such
information. All distributions made by the Collateral Agent pursuant
to Section 4.04 hereof shall be final as against the Collateral Agent
(subject to any decree of any court of competent jurisdiction), and
the Collateral Agent shall have no duty to inquire as to the
application by any Secured Party of any amounts distributed to it.
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(i) The following new Section 4.09 is hereby added to the
Collateral Agency Agreement immediately following Section 4.08:
4.09. ICV LOC COLLATERAL ACCOUNT.
(a) ICV LOC COLLATERAL ACCOUNT. Not later than the first
date on which funds are required to be deposited therein pursuant
to this Agreement or any other Shared Security Document, the
Collateral Agent shall maintain an account (the "ICV LOC
Collateral Account") at such office as it may designate from time
to time in its own name as Collateral Agent.
(b) INVESTMENT. The Collateral Agent shall invest and
reinvest moneys on deposit in the ICV LOC Collateral Account in
its own name in such Restricted Investments as the Collateral
Agent may select in its discretion, and all such investments and
the interest and income received thereon and the net proceeds on
the sale or redemption thereof shall be held in the ICV LOC
Collateral Account. The Collateral Agent shall not be responsible
or liable to any other Person for any loss or decline in value of
such investments or any loss or penalties incurred in the
liquidation or sale thereof. The Collateral Agent may liquidate
investments prior to maturity to make a distribution pursuant to
Section 4.09(d) hereof or otherwise permitted or required
pursuant to this Agreement.
(c) DEPOSITS. Notwithstanding anything to the contrary
contained herein, all funds distributable from the Shared
Collateral Account under Section 4.04 hereof on account of ICV
LOC Exposure shall be deposited into the ICV LOC Collateral
Account. In addition, the ICV Credit Agent shall remit to the
Collateral Agent, for deposit into the ICV LOC Collateral
Account, such amounts as the ICV Credit Agreement or any ICV
Credit Document requires or permits to be deposited therein. No
other funds shall be deposited in the ICV LOC Collateral Account
or commingled with funds in the ICV LOC Collateral Account.
(d) DISBURSEMENTS. The Collateral Agent shall remit funds on
deposit from time to time in the ICV LOC Collateral Account to,
or at the direction of, the ICV Credit Agent when and as
requested by the ICV Credit Agent for the reimbursement of ICV
LOC Unreimbursed Draws, as and when the same become due and
payable, if and to the extent the Borrower fails to pay the same.
The ICV Credit Agent shall forthwith remit, or cause the
Collateral Agent to remit, such funds to the Secured Party which
is the issuer of such ICV LOC, who shall apply such funds to
payment of such ICV LOC Unreimbursed Draw. If at any time the
amount on deposit in the ICV LOC Collateral Account exceeds the
aggregate ICV LOC Exposure with respect to all outstanding ICV
LOCs, the excess shall be deposited into the Shared Collateral
Account.
(j) Section 5.09 of the Collateral Agency Agreement is hereby
amended by deleting the phrase "Revolving Credit Agreement or Term
Loan Agreement, as the case may be" in each place in which it appears
and replacing with the phrase "Revolving Credit Agreement, Term Loan
Agreement or ICV Credit Agreement, as the case may be".
(k) Section 5.13 of the Collateral Agency Agreement is hereby
amended by deleting the phrase "the Revolving Credit Agent and the
Term Loan Agent" and replacing it with the phrase "the Revolving
Credit Agent, the Term Loan Agent and the ICV Credit Agent"
(l) Section 6.08 of the Collateral Agency Agreement is hereby
amended by deleting the words "and (c)" and replacing them with the
phrase "(c) from the ICV Credit Agent to the effect that (i) the Liens
created hereby and by the other Shared Security Documents are to be
released and discharged, or (ii) all commitments to extend credit
under the ICV Credit Documents have terminated, all ICV
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LOCs have terminated, and all ICV Credit Obligations (other than Contingent
Indemnfication Obligations) have been indefeasibly paid in full in cash, and
(d)".
(m) Exhibit A to the Collateral Agency Agreement is hereby
amended as follows: (i) In Section 5, the phrase "the Revolving Credit
Agent, the Term Loan Agent and the Borrower" is deleted and replaced
with the phrase "the Revolving Credit Agent, the Term Loan Agent, the
ICV Credit Agent and the Borrower". (ii) The signature block is
amended by deleting the phrase "as Revolving Credit Agent and Term
Loan Agent" and replacing it with the phrase "as Revolving Credit
Agent, Term Loan Agent and ICV Credit Agent".
(n) To the extent an Interest Rate Hedging Agreement in existence
on the effective date of this Amendment constitutes a "Swap Agreement"
entitled to the benefit of the Collateral Agency Agreement under
Collateral Agency Agreement as constituted before this Amendment,
nothing in this Amendment shall be construed to cause such Interest
Rate Hedging Agreement to cease to be a "Swap Agreement".
SECTION 3. AMENDMENTS TO THE SECURITY AGREEMENT.
(a) Section 2.04 of the Security Agreement is hereby amended by
deleting the phrase "neither Facility Agent" where it appears in
clause (c) and replacing it with the phrase "no Facility Agent".
(b) Sections 4.02(a), 4.02(b) and 4.04(e) of the Security
Agreement are hereby amended by deleting the phrase "the Revolving
Credit Agreement and the Term Loan Agreement" in each place where it
appears and replacing it with the phrase "the Revolving Credit
Agreement, the Term Loan Agreement and the ICV Credit Agreement".
SECTION 4. EFFECTIVENESS AND EFFECT, ETC.
(a) This Amendment shall become effective on the day on which
each of the following conditions has been satisfied: (i) Mellon Bank,
N.A., as Collateral Agent, Revolving Credit Agent and Term Loan Agent,
shall have received counterparts hereof duly executed by the Borrower,
"Required Lenders" under the Revolving Credit Agreement, "Required
Lenders" under the Term Loan Agreement, the Collateral Agent, the
Revolving Credit Agent and the Term Loan Agent, and (ii) the ICV
Credit Agreement shall have been executed and delivered by the
Borrower.
(b) The Revolving Credit Agreement, the Term Loan Agreement, the
Collateral Agency Agreement and the Security Agreement, as amended by
the letter agreement dated August 8, 1995, the Amendment to
Transaction Documents dated as of March 12, 1996, the Amendment to
Transaction Documents dated as of June 27, 1996, the Amendment to
Transaction Documents dated as of September 30, 1996, and as amended
and modified 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 of any Secured Party under the Revolving Credit
Agreement, the Term Loan Agreement, the Collateral Agency Agreement or
the Security Agreement or constitute a waiver of any provision of any
of the foregoing.
SECTION 5. 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
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of law rules. This Amendment constitutes a Transaction Document and is a
requested amendment within the meaning of Sections 10.06(a) of each of the
Revolving Credit Agreement and the Term Loan Agreement and Section 5.14 of the
Collateral Agency Agreement.
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 /s/ XXXX X. XXXXXXXX
--------------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Treasurer
MELLON BANK, N.A.,
individually and as Collateral Agent,
Revolving Credit Agent, Term Loan Agent,
and ICV Credit Agent
By /s/ R. XXXX XXXXXXXX
--------------------------------------------
Name: R. Xxxx Xxxxxxxx
Title: Vice President
CONSENTED AND AGREED:
THE FIRST NATIONAL BANK OF BOSTON
By /s/ XXXXXXXX X. XXXXXXX
-------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Managing Director
NATIONSBANK, N.A.
By /s/ XXXXXXXXX X. XXXX
-------------------------------
Name: Xxxxxxxxx X. Xxxx
Title: Vice President
THE ROYAL BANK OF SCOTLAND PLC
By /s/ XXXXX X. XXXXXXXX
-------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Senior Vice President
and Manager
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THE FUJI BANK, LIMITED
By /s/ XXXXX XXXXXXXX
-------------------------------
Name: XXXXX XXXXXXXX
Title: Vice President & Manager
THE CHASE MANHATTAN BANK
By /s/ XXXXXX X. XXXXXX
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Regional Credit Manager.
FIRST AMERICAN NATIONAL BANK
By /s/ XXXXX X. XXXX
-------------------------------
Name: Xxxxx X. Xxxx
Title: Senior Vice President
THE BANK OF TOKYO - MITSUBISHI, LIMITED,
successor by merger to THE MITSUBISHI BANK, LIMITED
By /s/ XXXXXX XXXXXXXXXXXX
-------------------------------
Name: Xxxxxx Xxxxxxxxxxxx
Title: Attorney in Fact
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