Exhibit 10.59
OUTSOURCE FUNDING CORPORATION
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FIRST AMENDMENT
TO
REVOLVING CREDIT AGREEMENT
This First Amendment (this "Amendment"), dated as of December 29, 1999,
among (a) OUTSOURCE FUNDING CORPORATION; (b) each of the banks party to the
Credit Agreement hereinafter referred to (collectively, the "Banks") and (c)
BANKBOSTON, N.A., as agent for the Banks (the "Agent"), pursuant to that certain
Revolving Credit Agreement (as amended and in effect from time to time, the
"Credit Agreement"), dated as of October 1, 1999, among the Borrower, the Banks
and the Agent. Capitalized terms used herein and which are not otherwise defined
shall have the respective meanings ascribed thereto in the Credit Agreement.
WHEREAS, the Borrower has requested that the Banks and the Agent agree
to amend the terms of the Credit Agreement in certain respects; and
WHEREAS, the Banks and the Agent are willing to amend the terms of the
Credit Agreement in such respects, upon the terms and subject to the conditions
contained herein; and
NOW, THEREFORE, in consideration of the mutual agreements contained in
the Credit Agreement herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
ss.1. Amendment to Definitions. Section 1.1 of the Credit Agreement is
hereby amended by deleting the words "December 31, 1999" appearing in the
definition of "Revolving Credit Loan Maturity Date" and substituting in lieu
thereof the words "January 31, 2000".
ss.2. Confirmation of Obligations. The Borrower hereby confirms that
the obligations of the Borrower arising under each of the Loan Documents to
which it is a party, including Indebtedness consisting of Loans, are included in
the Obligations, are not subject to any claims or defenses whatsoever, and
constitute valid and binding obligations of the Borrower enforceable against the
Borrower in accordance with its terms, except as enforceability may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally and by general
equitable principles (whether enforcement is sought by proceedings in equity or
at law).
ss.3. Release. The Borrower, on the Borrower's own behalf and on behalf
of the Borrower's successors and assigns, hereby waives, releases and discharges
the Agent and each Bank and all of the affiliates of the Agent and each Bank,
and all of the directors, officers, employees, attorneys and agents of the
Agent, each Bank and such affiliates, from any and all claims, demands, actions
or causes of action (known and
unknown) arising out of or in any way relating to the Loan Documents and any
documents, agreements, dealings or other matters connected with the Credit
Agreement, in each case to the extent arising (x) on or prior to the date hereof
or (y) out of, or relating to, actions, dealings or matters occurring on or
prior to the date hereof. The waivers, releases, and discharges in this Section
3 shall be effective regardless of whether the conditions to this Amendment are
satisfied and regardless of any other event that may occur or not occur after
the date hereof.
ss.4. Covenants. The Borrower hereby agrees that:
(a) the Borrower shall permit the Banks, the Agent and their advisors
to have full and complete access to all information that Xxxxxxx Xxxxx develops
or obtains with respect to the valuation and disposition of Synadyne and the
Borrower shall authorize Xxxxxxx Xxxxx to deliver such information to the Banks,
the Agent and their advisors, and discuss the same with them; and
(b) the Borrower shall permit the Banks, the Agent and their advisors
to engage the services of consultants in connection with the valuation of the
Borrower's business, and shall permit the Agent and/or its counsel to continue
to retain Nightingale & Associates, LLC ("Nightingale"). Such consultants shall,
among other things, make visits to, and discuss financial and operational
matters with, the Borrower and advise the Agent and the Banks as to the
business, operations and financial condition of the Borrower. Such consultants
shall not be limited in the frequency of visits to the facilities of the
Borrower. The Borrower shall cooperate with such consultants and provide such
consultants with all information reasonably requested by such consultants in
connection with its engagement by the Agent and/or its counsel. The Borrower
shall pay all fees and expenses of such consultants.
ss.5. Representations and Warranties. The Borrower represents and
warrants to the Banks and the Agents as follows:
(a) Representations and Warranties in Credit Agreement. The
representations and warranties of the Borrower contained in the Credit
Agreement, as amended hereby, (a) were true and correct in all material respects
when made, and (b) except (i) as a result of changes in the ordinary course of
business permitted under the Credit Agreement and (ii) to the extent such
representations and warranties by their terms are made solely as of a prior
date, continue to be true and correct in all material respects on the date
hereof.
(b) Authority, Etc. The execution and delivery by the Borrower of this
Amendment and the performance by the Borrower of all of their agreements and
obligations under this Amendment and the Credit Agreement as amended hereby (i)
are within the corporate authority of the Borrower, (ii) have been duly
authorized by all necessary corporate or other proceedings or actions, as the
case may be, by the Borrower, (iii) do not conflict with or result in any breach
or contravention of any provision of law, statute, rule or regulation to which
the Borrower is subject or any judgment, order, writ, injunction, license or
permit applicable to the Borrower, and (iv)
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do not conflict with any provision of the corporate charter, by-laws or
partnership agreement of, or any agreement or other instrument binding upon, the
Borrower.
(c) Enforceability of Obligations. This Amendment, the Credit Agreement
as amended hereby, and the other Loan Documents constitute the legal, valid and
binding obligations of the Borrower enforceable against the Borrower in
accordance with their respective terms, except as enforceability may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally and by general
equitable principles (whether enforcement is sought by proceedings in equity or
at law). After giving effect to this Amendment, no Default or Event of Default
exists under the Credit Agreement.
ss.6. Conditions to Effectiveness. This Amendment shall be effective as
of the date hereof (the "Effective Date") upon the satisfaction of the following
conditions precedent:
(a) receipt by the Agent of an original counterpart signature to this
Amendment, duly executed and delivered by the Borrower, the Banks and the Agent;
(b) receipt by the Agent of evidence satisfactory to the Agent that the
OI Revolving Credit Agreement termination date has been extended until January
31, 2000 from its current December 31, 1999 maturity date;
(c) receipt by the Agent of appropriate corporate authority
documentation for the Borrower, including copies (to the extent not already
furnished to the Agent) of the Borrower's organizational documents, bylaws and
resolutions authorizing the transactions contemplated by the Amendment;
(d) payment by the Borrower of the legal, appraisal, consultant and
out-of-pocket fees and expenses of the Agent, in each case, to the extent that
invoices for the same have been presented to the Borrower; and
(e) payment by the Borrower of all fees and expenses of Nightingale and
any other consultant retained by the Agent and/or the Banks in connection with
consulting services, to the extent that invoices for the same have been
presented to the Borrower (in addition to any amount previously paid as a
retainer to such consultant).
ss.7. Miscellaneous Provisions. (a) Except as otherwise expressly
provided by this Amendment, all of the terms, conditions and provisions of the
Credit Agreement shall remain the same. It is declared and agreed by each of the
parties hereto that the Credit Agreement, as amended hereby, shall continue in
full force and effect, and that this Amendment and the Credit Agreement shall be
read and construed as one instrument.
(b) THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED ACCORDING TO,
THE LAWS OF THE COMMONWEALTH OF
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MASSACHUSETTS (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR CHOICE OF LAW).
(c) This Amendment may be executed in any number of counterparts, but
all such counterparts shall together constitute but one instrument. In making
proof of this Amendment it shall not be necessary to produce or account for more
than one counterpart signed by each party hereto by and against which
enforcement hereof is sought.
(d) Headings or captions used in this Amendment are for convenience of
reference only and shall not define or limit the provisions hereof.
(e) The Borrower hereby agrees to pay to the Agent, on demand by the
Agent, all reasonable out-of-pocket costs and expenses incurred or sustained by
the Agent in connection with the preparation of this Amendment (including
without limitation, recording and filing fees, notarization fees, stamp taxes,
any other tax imposed by reason of the execution and delivery of the Loan
Documents, the reasonable fees and expenses of counsel to the Agent and the
reasonable fees and expenses of the Agent's commercial finance examiners and
commercial auditors).
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IN WITNESS WHEREOF, each of the undersigned has duly executed this
Amendment as of the date first set forth above.
OUTSOURCE FUNDING CORPORATION
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Vice President
BANKBOSTON, N.A., individually and as Agent
By: /s/ C. Xxxxxxxxxxx Xxxxx
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Name: C. Xxxxxxxxxxx Xxxxx
Title: Vice President
COMERICA BANK
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Vice President
LASALLE BANK NATIONAL ASSOCIATION
By: /s/ Xxxx X. XxXxxxx
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Name: Xxxx X. XxXxxxx
Title: First Vice President
SUNTRUST BANK, SOUTH FLORIDA,
NATIONAL ASSOCIATION
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Director
FLEET NATIONAL BANK
By: /s/ C. Xxxxxxxxxxx Xxxxx
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Name: C. Xxxxxxxxxxx Xxxxx
Title: Banking Officer
