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OSI COLLECTION SERVICES INC
·
10-K/A
Apr 5, 5:30 PM ET
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OSI COLLECTION SERVICES INC 10-K/A
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Contents
33
SECTION 1. Amendment of the Credit Agreement. The Credit Agreement is hereby amended, effective as of the Third Amendment Effective Date, as follows:
1. Section 1.01 of the Credit Agreement (Certain Defined Terms) is hereby amended by inserting the following definitions in alphabetical order:
2. Section 2.06(b)(i) (Prepayments. Mandatory) is hereby amended by deleting such subsection in its entirety and replacing it with the following:
3. Section 2.06(b) (Prepayments. Mandatory) is hereby amended by the addition of a new clause (vii) thereof, stating in its entirety as follows:
4. Section 5.02(f)(xv) (Investments in Other Persons) is hereby amended by deleting such subsection in its entirety and replacing it with the following:
5. Section 5.02(j) (Prepayments, Etc., of Debt) is hereby amended by deleting part (D) of clause (i) thereof, and replacing such part (D) with the following:
(D) so long as no Default or Event of Default has occurred and is continuing, any prepayment, repurchase or redemption of the Senior Notes, the Senior Subordinated Notes or Refinanced Notes (including, without limitation, pursuant to open market purchases or secondary market purchases at a discount) (1) with the proceeds of Refinanced Notes or (2) with Net Cash Proceeds of Equity Interests (excluding Disqualified Stock) issued by the Borrower, provided that such prepayment, repurchase or redemption occurs within twelve (12) months following the date that such Net Cash Proceeds of such Equity Interests are received.
6. Section 5.03(n) (Reporting Covenants) is hereby amended by deleting such subsection in its entirety and replacing it with the following:
(n) Reporting on Investments in Portfolio Management Assets.
Together with the schedules and Chief Financial Officer certificates delivered pursuant to Section 5.03(b) (Annual Financials) for each Fiscal Year ending on or after December 31, 2010, computations and reporting, in form and substance reasonably acceptable to the Administrative Agent, regarding the purchases of Portfolio Management Assets made in such Fiscal Year pursuant to Section 5.02(f)(xv)(B).
7. Section 5.04(a) (Leverage Ratio) is hereby amended by deleting from the table in such Section all rows with respect to any Measurement Period ending on any date during 2010 or thereafter and replacing such rows with the following:
8. Section 5.04(b) (Interest Coverage Ratio) is hereby amended by deleting from the table in such Section all rows for Measurement Periods ending on any date during 2010 or thereafter, and replacing them with the following:
9. The Required Lenders hereby authorize the Administrative Agent at any time after the Third Amendment Effective Date but prior to the Termination Date of the Term B Facility to enter into an amendment of the Credit Agreement that (i) seeks to extend the Termination Date of all or a part of the Revolving Credit Commitments of one or more Lenders under the Revolving Credit Facility up to the Termination Date of the Term B Facility (May 15, 2013) with the consent of each Lender holding Revolving Credit Commitments that agrees to extend (provided at least a majority in aggregate of the Revolving Credit Commitments in effect as of the Third Amendment Effective Date are so similarly extended), or with respect to any such Lender that does not so consent, a replacement Lender that shall agree to assume and extend all or a portion of such non-consenting Lender’s Revolving Credit Commitments from and after the existing Termination Date (but, in each case, without the consent of any other Lenders), (ii) to the extent such Revolving Credit Commitments are so extended, seeks to similarly extend in whole or in part the Swing Line Commitments and/or the Letter of Credit Commitments under the Swing line Facility and/or Letter of Credit Facility, as applicable, up to the Termination Date of the Term B Facility (May 15, 2013) with the consent of Swing Line Bank and/or the Issuing Bank as applicable, and (iii) effects such other amendments to the Credit Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect such extensions (including
without limitation, modifying the Applicable Margin applicable to the Revolving Credit Commitments being extended, decreasing the aggregate amount of the Revolving Credit Commitments in connection with such extension and allocating repayments as between consenting and non-consenting Revolving Credit Lenders on the existing Termination Date to give effect to the extension). The Borrowers may pay an extension fee to, and as agreed with, such consenting Revolving Credit Lenders, the Swing Line Bank, the Issuing Bank and the Administrative Agent with respect to such extension without having any obligation to make any additional payments with respect to such extension to non-consenting Revolving Credit Lenders or Term B Lenders, which fees, notwithstanding that such fees are payments with respect to a Commitment, shall not constitute an Obligation for purposes of the Credit Agreement. Other than as described above, the terms applicable to each of the extended Revolving Credit Facility, Swing Line Facility and Letter of Credit Facility shall be identical to the terms of the applicable Facility in effect as of the Third Amendment Effective Date. Nothing herein shall be construed to imply that the Revolving Credit Advances of any Revolving Credit Lender will be paid in full later than the then-current Termination Date of the Revolving Credit Facility without the consent of such Revolving Credit Lender.
SECTION 2. Conditions to Effectiveness. The effectiveness of this Third Amendment shall be the date on which all of the following conditions precedent have been satisfied or have been waived or deferred by Citizens as Administrative Agent (except that item (1) below may not be waived or deferred) (the “Third Amendment Effective Date”):
1. Citizens shall have received this Third Amendment, executed and delivered by a duly authorized officer of each of the Loan Parties and shall have received written consents to this Third Amendment executed by the Required Lenders, the Issuing Bank and the Swing Line Bank.
2. The Administrative Agent shall have received (i) on behalf of each Lender who has executed this Third Amendment, a nonrefundable amendment fee equal to 0.375% of the sum of such Lender’s Revolving Credit Commitment (whether used or unused) and outstanding Term B Advances as of the Third Amendment Effective Date, which fee shall be fully earned and payable on the Third Amendment Effective Date, and (ii) all fees due and fully earned and payable to the Administrative Agent on or prior to the Third Amendment Effective Date, including, to the extent invoiced on or before the Third Amendment Effective Date, reimbursement or other payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder or under any other Loan Documents (including the reasonable fees, charges and disbursements of Latham & Watkins LLP, counsel to the Administrative Agent, incurred in connection with this Third Amendment).
3. Immediately after giving effect to this Third Amendment, no Default or Event of Default shall have occurred and be continuing.
SECTION 3. Representations and Warranties. To induce the other parties hereto to enter into this Third Amendment, each of the Loan Parties represents and warrants to each of the Lenders and the Administrative Agent that, as of the Third Amendment Effective Date:
1. This Third Amendment has been duly authorized, executed and delivered by the Loan Parties and this Third Amendment constitutes each of the Loan Parties’ legal, valid and binding obligation, enforceable against it in accordance with its terms except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditors’ rights generally and by general principles of equity (regardless of whether such enforceability is considered in a proceeding at law or in equity).
2. The representations and warranties of the Loan Parties set forth in each Loan Document are, after giving effect to this Third Amendment, true and correct in all material respects on and as of the Third Amendment Effective Date, or, with respect to representations and warranties that are specifically made as of an earlier date, as of such date.
3. No Default or Event of Default has occurred and is continuing or will be caused by the Third Amendment.
SECTION 4. Effect of Amendment. Except as expressly set forth herein, this Third Amendment shall not by implication or otherwise limit, impair, constitute a waiver of or otherwise affect the rights and remedies of the Lenders, the Administrative Agent or the Collateral Agent under the Credit Agreement or any other Loan Document, and shall not alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement or any other provision of the Credit Agreement or of any other Loan Document, all of which are ratified and affirmed in all respects and shall continue in full force and effect (in each case as amended hereby). Except to the extent expressly provided in paragraph 9 of Section 1 hereof, nothing herein shall be deemed to entitle the Borrower to a further consent to, or a further waiver, amendment, modification or other change of, any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement or any other Loan Document in similar or different circumstances.
Upon and after the Third Amendment Effective Date, each reference in the Credit Agreement to “this Agreement”, “hereunder”, “hereof” or words of like import referring to the Credit Agreement, and each reference in the other Loan Documents to “the Credit Agreement”, “thereunder”, “thereof” or words of like import referring to the Credit Agreement, shall mean and be a reference to the Credit Agreement as amended hereby. This Third Amendment is a “Loan Document.”
Without limiting the generality of the foregoing, the Collateral Documents and all of the Collateral described therein do and shall continue to secure the payment and performance of all Obligations under and as defined therein.
SECTION 5. Fees, Costs and Expenses. The Borrower agrees to pay to the Administrative Agent such fees, and to reimburse the Administrative Agent for its reasonable out of pocket expenses in connection with this Third Amendment, including the reasonable fees, charges and disbursements of outside counsel to Administrative Agent in connection with this Third Amendment, as has been previously agreed between the Borrower and the Administrative Agent.
SECTION 6. Counterparts. This Third Amendment may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed an original, but all such counterparts together shall constitute but one and the same instrument. Delivery of any executed counterpart of a signature page of this Third Amendment by facsimile transmission or electronic transmission shall be as effective as delivery of a manually executed counterpart hereof.
SECTION 7. Acknowledgement and Consent. Each Guarantor and the Borrower are referred to herein as a “Credit Support Party” and collectively as the “Credit Support Parties”, and the Loan Documents to which they are a party are collectively referred to herein as the “Credit Support Documents”.
SECTION 8. Applicable Law. THIS THIRD AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 9. Headings. The headings of this Third Amendment are for purposes of reference only and shall not limit or otherwise affect the meaning hereof.
SECTION 10. Release. In consideration of, among other things, the Administrative Agent’s and the Lenders’ execution and delivery of this Third Amendment, the Borrower and each of the Guarantors, on behalf of itself and its agents, representatives, officers, directors, advisors, employees, subsidiaries, successors and assigns (collectively, “Releasors”), hereby forever agrees and covenants not to sue or prosecute against any Releasee (as hereinafter defined) in respect of, and hereby forever waives, releases and discharges, to the fullest extent permitted by law, each Releasee (as hereinafter defined) from any and all claims (including, without limitation, crossclaims, counterclaims, rights of set-off and recoupment), actions, causes of action, suits, debts, damages and consequential damages, or claims whatsoever (collectively, the “Claims”), that such Releasor has as of the date hereof, of whatsoever nature and kind, whether known or unknown, whether arising at law or in equity, against any or all of the Lender Parties, the Administrative Agent and/or the Collateral Agent in any capacity and their respective affiliates, subsidiaries, shareholders and “controlling persons” (within the meaning of the federal securities laws), and their respective successors and assigns and each and all of the officers, directors, employees, agents, attorneys and other representatives of each of the foregoing (collectively, the “Releasees”), based in whole or in part on facts, whether or not now known, existing on or before the date hereof, that relate to, arise out of or otherwise are in connection with any or all of the Loan Documents or transactions contemplated thereby or any actions or omissions in connection therewith. In entering into this Third Amendment, the Borrower and each Guarantor consulted with, and has been represented by, legal counsel and expressly disclaims any reliance on any representations, acts or omissions by any of the Releasees and hereby agrees and acknowledges that the validity and effectiveness of the releases set forth above do not depend in any way on any such representations, acts and/or omissions or the accuracy, completeness or validity hereof. The provisions of this Section shall survive the termination of this Third Amendment, the Credit Agreement, the other Loan Documents and payment in full of the Obligations.
Assistant Secretary
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