OUTSOURCING SOLUTIONS INC.
THIRD AMENDMENT TO
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
This THIRD AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT
(this "Amendment") is dated as of September 23, 1998 and entered into by and
among OUTSOURCING SOLUTIONS INC., a Delaware corporation ("Com pany"), THE
FINANCIAL INSTITUTIONS LISTED ON THE SIGNATURE PAGES HEREOF (each individually
referred to herein as a "Lender" and collectively as the "Lend ers"), and
GOLDMAN SACHS CREDIT PARTNERS L.P. and THE CHASE MANHAT TAN BANK, as
Co-Administrative Agents (in such capacities, "Co-Administrative Agents"), and
is made with reference to that certain Second Amended and Restated Credit
Agreement dated as of January 26, 1998, as heretofore amended, supplemented or
otherwise modified (as so amended, supplemented or modified, the "Credit
Agreement"), by and among Company, the Lenders, Goldman Sachs Credit Partners
L.P. and Chase Securities Inc., as Arranging Agents and Co-Administrative
Agents. Capitalized terms used herein without definition shall have the same
meanings herein as set forth in the Credit Agreement and in the amendments
contained in Section 1 hereof.
RECITALS
WHEREAS, the parties to the Credit Agreement desire to amend the Credit
Agreement to provide for certain adjustments to the covenants restricting
Permitted Portfolio Acquisitions and Portfolio Advances.
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto agree as follows:
SECTION 1. AMENDMENT TO CREDIT AGREEMENT
1.1 Amendments to Section 7: Negative Covenants
A. Subsection 7.7(v) of the Credit Agreement is hereby amended by deleting
clause (d) therefrom in its entirety and substituting therefor the following:
"(d) the aggregate amount expended for Permitted Portfolio
Acquisitions of receivables portfolios from Bally's Inc. shall not exceed
$10,000,000 during any Fiscal Year, and the aggregate amount expended for
all other Permitted Portfolio Acquisitions(1) during Fiscal Year 1998,
together with the aggregate amount of all Investments made pursuant to
subsection 7.3(v)(c) and the aggregate amount advanced and retained by
Company and/or its Subsidiaries as Portfolio Advances during such period,
shall not exceed $55,000,000, and (2) during any Fiscal Year after 1998,
together with the aggregate amount of all Investments made pursuant to
subsection 7.3(v)(c) and the aggregate amount advanced and retained by
Company and/or its Subsidiaries as Portfolio Advances during such Fiscal
Year, shall not exceed $15,000,000;"
SECTION 2. ACKNOWLEDGMENT AND CONSENT
Each Subsidiary Guarantor hereby acknowledges that it has reviewed the
terms and provisions of this Amendment and consents to the amendment of the
Credit Agreement effected pursuant to this Amendment. Each Subsidiary Guarantor
hereby confirms that each Loan Document to which it is a party or otherwise
bound and all Collateral encumbered thereby will continue to guaranty or secure,
as the case may be, to the fullest extent possible, the payment and performance
of all Obligations.
Each Subsidiary Guarantor acknowledges and agrees that any of the Loan
Documents to which it is a party or otherwise bound shall continue in full force
and effect and that all of its obligations thereunder shall be valid and
enforceable and shall not be impaired or limited by the execution or
effectiveness of this Amendment.
SECTION 3. COMPANY'S REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Amendment and to amend the
Credit Agreement in the manner provided herein, Company represents and warrants
to each Lender that the following statements are true, correct and complete:
A. Corporate Power and Authority. Each Loan Party has all requisite
corporate or partnership (as applicable) power and authority to enter into this
Amendment and to carry out the transactions contemplated by, and perform its
obligations under, the Credit Agreement as amended by this Amendment (the
"Amended Agreement") and the other Loan Documents.
B. Authorization of Agreements. The execution and delivery of this
Amendment and the performance of the Amended Agreement and the other Loan
Documents have been duly authorized by all necessary corporate or partnership
(as applicable) action on the part of each Loan Party.
C. No Conflict. The execution and delivery by each Loan Party of this
Amendment and the performance by each Loan Party of the Amended Agreement and
the other Loan Documents do not and will not (i) violate any provision of any
law or any governmental rule or regulation applicable to Company or any of its
Subsidiaries, the Certificate or Articles of Incorporation or Bylaws (or other
analogous organizational document) of Company or any of its Subsidiaries or any
order, judgment or decree of any court or other agency of government binding on
Company or any of its Subsidiaries, (ii) conflict with, result in a breach of or
constitute (with due notice or lapse of time or both) a default under any
Contractual Obligation of Company or any of its Subsidiaries, (iii) result in or
require the creation or imposition of any Lien upon any of the properties or
assets of Company or any of its Subsidiaries (other than any Liens created under
any of the Loan Documents in favor of Collateral Agent on behalf of Lenders), or
(iv) require any approval of stockholders or partners or any approval or consent
of any Person under any Contractual Obligation of Company or any of its
Subsidiaries, except for such approvals or consents which will be obtained on or
before the Third Amendment Effective Date and disclosed in writing to Lenders.
D. Governmental Consents. The execution and delivery by each Loan Party of
this Amendment and the performance by each Loan Party of the Amended Agreement
and the other Loan Documents do not and will not require any registration with,
consent or approval of, or notice to, or other action to, with or by, any
federal, state or other governmental authority or regulatory body.
E. Binding Obligation. This Amendment and the Amended Agreement have been
duly executed and delivered by each Loan Party and are the legally valid and
binding obligations of each Loan Party, enforceable against each of them in
accordance with their respective terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws relating to or limiting
creditors' rights generally or by equitable principles relating to
enforceability.
F. Incorporation of Representations and Warranties From Credit Agreement.
The representations and warranties contained in Section 5 of the Credit
Agreement are and will be true, correct and complete in all material respects on
and as of the Third Amendment Effective Date to the same extent as though made
on and as of that date, except to the extent such representations and warranties
specifically relate to an earlier date, in which case they were true, correct
and complete in all material respects on and as of such earlier date.
G. Absence of Default. No event has occurred and is continuing or will
result from the consummation of the transactions contemplated by this Amendment
that would constitute an Event of Default or a Potential Event of Default.
SECTION 4. MISCELLANEOUS
A. Reference to and Effect on the Credit Agreement and the Other Loan
Documents.
(i) On and after the Third Amendment Effective Date, each reference in
the Credit Agreement to "this Agreement", "hereunder", "hereof", "herein"
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
by this Amendment.
(ii) Except as specifically amended by this Amendment, the Credit
Agreement and the other Loan Documents shall remain in full force and
effect and are hereby ratified and confirmed.
(iii) The execution, delivery and performance of this Amendment shall
not, except as expressly provided herein, constitute a waiver of any
provision of, or operate as a waiver of any right, power or remedy of any
Agent or Lender under, the Credit Agreement or any of the other Loan
Documents.
B. Headings. Section and subsection headings in this Amendment are included
herein for convenience of reference only and shall not constitute a part of this
Amendment for any other purpose or be given any substantive effect.
C. Applicable Law. THIS AMENDMENT AND THE RIGHTS AND OBLIGA TIONS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING WITHOUT
LIMITATION SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW
YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
D. Counterparts. This 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;
signature pages may be detached from multiple separate counterparts and attached
to a single counterpart so that all signature pages are physically attached to
the same document. This Amendment shall become effective (the date of
effectiveness being referred to herein as the "Third Amendment Effective Date")
upon the execution of a counterpart hereof by Company, each Subsidiary Guarantor
and Requisite Lenders and receipt by Company and Co-Administrative Agents of
written or telephonic notification of such execution and authorization of
delivery thereof. Notwithstanding the date of effectiveness of the Second
Amendment to the Credit Agreement, the provisions of this Amendment with respect
to subsection 7.7 (v)(d) of the Credit Agreement shall be controlling on and
after the Third Amendment Effective Date.
[Remainder of page intentionally left blank]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
COMPANY: OUTSOURCING SOLUTIONS INC.
By: /s/ Daniel J. Dolan
---------------------------------------
Name: Daniel J. Dolan
Title: EVP, Chief Financial Officer
AGENTS AND LENDERS: GOLDMAN SACHS CREDIT PARTNERS L.P.,
individually and as a Co-Administrative Agent
By: ---------------------------------------
Authorized Signatory
THE CHASE MANHATTAN BANK,
individually and as a Co-Administrative Agent
By: ---------------------------------------
Name:
Title:
SUNTRUST BANK, ATLANTA,
individually and as Collateral Agent
By: ---------------------------------------
Name:
Title:
By: ---------------------------------------
Name:
Title:
AG CAPITAL FUNDING PARTNERS, L.P.
By: ---------------------------------------
Name:
Title:
ARCHIMEDES FUNDING, L.L.C.
By: ING Capital Advisors, Inc.,
as Collateral Manager
By: --------------------------------
Name:
Title:
ARES LEVERAGED INVESTMENT FUND, L.P.
By: ---------------------------------------
Name:
Title:
CANADIAN IMPERIAL BANK OF COMMERCE
By: ---------------------------------------
Name:
Title:
CAPTIVA FINANCE III, LTD.
By: ---------------------------------------
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO
By: ---------------------------------------
Name:
Title:
MERRILL LYNCH SENIOR FLOATING
RATE FUND, INC.
By: ---------------------------------------
Name:
Title:
ML DEBT STRATEGIES FUND II, INC.
By: ---------------------------------------
Name:
Title:
ML INCOME STRATEGIES PORTFOLIO
By: ---------------------------------------
Name:
Title:
CREDITANSTALT - BANKVEREIN
By: ---------------------------------------
Name:
Title:
BANKBOSTON, N.A.
By: ---------------------------------------
Name:
Title:
FIRST DOMINION FUNDING I
By: ---------------------------------------
Name:
Title:
FRANKLIN FLOATING RATE TRUST
By: ---------------------------------------
Name:
Title:
HELLER FINANCIAL, INC.
By: ---------------------------------------
Name:
Title:
ING HIGH INCOME PRINCIPAL
PRESERVATION FUND HOLDINGS, LDC
By: ING Capital Advisors, Inc.
as Investment Advisor
By: --------------------------------
Name:
Title:
LASALLE NATIONAL BANK
By: ---------------------------------------
Name:
Title:
PNC BANK, NATIONAL ASSOCIATION
By: ---------------------------------------
Name:
Title:
PUTNAM VT HIGH YIELD TRUST
By: ---------------------------------------
Name:
Title:
PUTNAM HIGH YIELD TRUST
By: ---------------------------------------
Name:
Title:
ROYALTON COMPANY
By: ---------------------------------------
Name:
Title:
SOUTHERN PACIFIC BANK
By: ---------------------------------------
Name:
Title:
TORONTO DOMINION BANK
By: ---------------------------------------
Name:
Title:
VAN KAMPEN AMERICAN CAPITAL
PRIME RATE INCOME TRUST
By: ---------------------------------------
Name:
Title:
VAN KAMPEN AMERICAN CAPITAL
SENIOR FLOATING RATE FUND
By: ---------------------------------------
Name:
Title:
INDOSUEZ CAPITAL FUNDING II, LTD.
By: INDOSUEZ CAPITAL LUXEMBOURG, as
Collateral Manager
By: --------------------------------
Name:
Title:
INDOSUEZ CAPITAL FUNDING III, LTD.
By: INDOSUEZ CAPITAL LUXEMBOURG,
as Collateral Manager
By: --------------------------------
Name:
Title:
SENIOR DEBT PORTFOLIO
By: BOSTON MANAGEMENT AND
RESEARCH, as Investment Advisor
By: --------------------------------
Name:
Title:
SPS SWAPS
By: ---------------------------------------
Name:
Title:
PILGRIM AMERICA PRIME RATE TRUST
By: ---------------------------------------
Name:
Title:
PILGRIM HIGH INCOME INVESTMENTS Ltd.
By: ---------------------------------------
Name:
Title:
DELANO COMPANY
By: Pacific Investment Management Company,
as its Investment Advisor
By: --------------------------------
Name:
Title:
KZH CRESCENT-2 LLC
By: ---------------------------------------
Name:
Title:
KZH III LLC
By: ---------------------------------------
Name:
Title:
KZH CYPRESSTREE-1 LLC
By: ---------------------------------------
Name:
Title:
KZH CRESCENT LLC
By: ---------------------------------------
Name:
Title:
KZH ING-2 LLC
By: ---------------------------------------
Name:
Title:
VAN KAMPEN CLO II, LIMITED
By: ---------------------------------------
Name:
Title:
INDOSUEZ CAPITAL FUNDING IIA, LTD.
By: INDOSUEZ CAPITAL,
as Portfolio Advisor
By: --------------------------------
Name:
Title:
INDOSUEZ CAPITAL FUNDING III, LTD.
By: INDOSUEZ CAPITAL,
as Portfolio Advisor
By: --------------------------------
Name:
Title:
CREDIT LYONNAIS
By: ---------------------------------------
Name:
Title:
SUBSIDIARY GUARANTORS:
ALASKA FINANCIAL SERVICES, INC.
CFC SERVICES CORP.
CONTINENTAL CREDIT SERVICES, INC.
By: /s/ DanielJ. Dolan
---------------------------------------
Name: Daniel J. Dolan
Title: Treasurer
A.M. MILLER & ASSOCIATES, INC.
ACCOUNT PORTFOLIOS, INC.
ASSET RECOVERY & MANAGEMENT CORP.
FURST AND FURST, INC.
INDIANA MUTUAL CREDIT ASSOCIATION, INC.
JENNIFER LOOMIS & ASSOCIATES, INC.
NATIONAL ACCOUNT SYSTEMS, INC.
PAYCO AMERICAN CORPORATION
PAYCO AMERICAN INTERNATIONAL CORP.
PAYCO-GENERAL AMERICAN CREDITS, INC.
PROFESSIONAL RECOVERIES INC.
QUALINK, INC.
UNIVERSITY ACCOUNTING SERVICE, INC.
ACCELERATED BUREAU OF COLLECTIONS, INC.
NORTH SHORE AGENCY, INC.
By: /s/ DanielJ. Dolan
---------------------------------------
Name: Daniel J. Dolan
Title: Treasurer
PERIMETER CREDIT, L.L.C.
GULF STATE CREDIT, L.L.C.
SHERMAN ACQUISITION CORPORATION
THE UNION CORPORATION
ALLIED BOND & COLLECTION AGENCY, INC.
AMERICAN CHILD SUPPORT SERVICE BUREAU, INC.
CAPITAL CREDIT CORPORATION
TRANSWORLD SYSTEMS INC.
UCO PROPERTIES, INC.
UNION FINANCIAL SERVICES GROUP, INC.
HIGH PERFORMANCE SERVICES, INC.
HIGH PERFORMANCE SERVICES OF FLORIDA, INC.
INTERACTIVE PERFORMANCE, INC.
INTERACTIVE PERFORMANCE OF FLORIDA, INC.
AMERICAN RECOVERY COMPANY, INC.
C.S.N. CORP.
GENERAL CONNECTOR CORPORATION
U.C.O.-M.B.A. CORPORATION
UNION-SPECIALTY STEEL CASTING CORPORATION
INTERACTIVE PERFORMANCE OF GEORGIA, INC.
By: /s/ DanielJ. Dolan
---------------------------------------
Name: Daniel J. Dolan
Title: Treasurer