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EXHIBIT 10.52
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AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF APRIL 1, 1999
AMONG
EPS SOLUTIONS CORPORATION
AND
ENTERPRISE PROFIT SOLUTIONS CORPORATION,
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
AS ADMINISTRATIVE AGENT,
AND
THE LENDERS PARTY HERETO
-------------------------------------------------------
NATIONSBANC MONTGOMERY SECURITIES LLC,
SOLE LEAD ARRANGER
AND SOLE BOOK MANAGER
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AMENDED AND RESTATED CREDIT AGREEMENT
This Amended and Restated Credit Agreement (this "Agreement") is
entered into as of April 1, 1999 among ENTERPRISE PROFIT SOLUTIONS CORPORATION,
a Delaware corporation (the "Company"), EPS SOLUTIONS CORPORATION (f/k/a
ProfitSource Corporation), a Delaware corporation, certain other affiliates of
the Company, the several lending institutions from time to time party to this
Agreement (each a "Lender" and, collectively, the "Lenders"), and Bank of
America National Trust and Savings Association, as administrative agent for the
Lenders (in such capacity, the "Agent").
WHEREAS, the Loan Parties, the Lenders party thereto and the
Agent entered into a Credit Agreement dated as of December 7, 1998, which
agreement was amended by the First Amendment to Credit Agreement and Waiver
dated as of March 17, 1999 (as in effect as of the date of this Agreement, the
"Credit Agreement"); and
WHEREAS, the parties hereto desire to amend the Credit Agreement
as set forth herein and to restate the Credit Agreement in its entirety to read
as set forth in the Credit Agreement with the amendments specified below,
subject to the terms and conditions of this Agreement;
NOW, THEREFORE, the parties hereto agree as follows:
1. Definitions; References; Interpretation.
(a) Unless otherwise specifically defined herein, each term used
herein (including in the Recitals hereof and in the Consent and Agreement of
Guarantors attached hereto) which is defined in the Credit Agreement shall have
the meaning assigned to such term in the Credit Agreement.
(b) Each reference to "this Agreement", "hereof", "hereunder",
"herein" and "hereby" and each other similar reference and contained in the
Credit Agreement, and each reference to "the Credit Agreement" and each other
similar reference in the other Loan Documents, shall from and after the
Effective Date ( as defined in Section 2) refer to the Credit Agreement as
amended and restated hereby.
(c) The rules of interpretation set forth in Section 1.02 of the
Credit Agreement shall be applicable to this Agreement.
2. Amendments to Credit Agreement. Subject to the terms and conditions hereof,
the Credit Agreement is amended as follows, effective as of the date of
satisfaction of the conditions set forth in Section 4 (the "Effective Date"):
(a) Amendments to Article I of the Credit Agreement.
(1) The definition of "Lead Manager" defined in
the Credit Agreement
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shall include from and after the Effective Date NationsBanc Montgomery
Securities LLC in its capacity as Sole Lead Arranger and Sole Book Manager in
connection with the Credit Agreement (as amended and restated by this
Agreement).
(2) The term "Notes" defined in the Credit Agreement shall
include from and after the Effective Date the Notes delivered under this
Agreement.
(b) Amendment to Subsection 2.01(a) of the Credit Agreement. An
additional Borrowing of Term Loans under subsection 2.01(a) of the Credit
Agreement shall be permitted in a single drawdown on the Effective Date up to
the aggregate amount of the unused Term Commitments then in effect (after giving
effect to the increase in the aggregate Term Commitments contemplated in this
Agreement). After the Effective Date, the Term Commitment of each Lender then
remaining unused shall immediately terminate without any further act of the
Agent, the Company or any of the Lenders.
(c) Amendment to Schedule 2.01 of the Credit Agreement. Schedule
2.01 of the Credit Agreement is replaced in its entirety by Schedule 2.01
attached to this Agreement.
(d) Amendment to Schedule 10.02 of the Credit Agreement. Schedule
10.02 of the Credit Agreement is replaced in its entirety by Schedule 10.02 of
this Agreement.
3. Representations and Warranties. Each Loan Party hereby represents and
warrants to the Agent and the Lenders as follows:
(a) No Default or Event of Default has occurred and is continuing
(or would result from the amendment of the Credit Agreement contemplated
hereby).
(b) The execution, delivery and performance by such Loan Party of
this Agreement and the Credit Agreement (as amended and restated by this
Agreement) have been duly authorized by all necessary corporate and other action
and do not and will not require any registration with, consent or approval of,
or notice to or action by, any Person (including any Governmental Authority) in
order to be effective and enforceable.
(c) This Agreement, each Note delivered hereunder and the Credit
Agreement (as amended and restated by this Agreement) constitute the legal,
valid and binding obligations of such Loan Party (to the extent it is a party
thereto), enforceable against it in accordance with their respective terms.
(d) All representations and warranties of such Loan Party
contained in the Credit Agreement are true and correct (except to the extent
such representations and warranties expressly refer to an earlier date, in which
case they shall be true and correct as of such earlier date and except that this
subsection (d) shall be deemed instead to refer to the last day of the most
recent fiscal month, quarter and year for which financial statements have then
been delivered in respect of the representation and warranty made in subsection
5.11(a) of the Credit Agreement
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and to take into account any amendments to the Schedules to the Credit Agreement
and other disclosures made in writing by Holdings and the Company to the Agent
and the Lenders after the Closing Date and approved by the Agent and the
Majority Lenders).
(e) There has occurred since September 30, 1998, no event or
circumstance that has resulted or could reasonably be expected to result in a
Material Adverse Effect.
(f) Each Loan Party is entering into this Agreement on the basis
of its own investigation and for its own reasons, without reliance upon the
Agent and the Lenders or any other Person.
(g) The Loan Parties' obligations under the Credit Agreement and
under the other Loan Documents are not subject to any defense, counterclaim,
set-off, right of recoupment, abatement or other claim.
4. Conditions of Effectiveness.
(a) The effectiveness of Section 2 of this Agreement shall be
subject to the satisfaction of each of the following conditions precedent:
(1) The Agent shall have received from each Loan Party and
each of the Lenders (i) a duly executed original (or, if elected by the Agent,
an executed facsimile copy) of this Agreement; and (ii) if requested by any
Lender, Notes (or replacement Notes) substantially in the forms of Exhibit F-1
and Exhibit F-1 to the Credit Agreement.
(2) The Agent shall have received the consent of each
Guarantor in its capacity as such to the execution and delivery hereof by the
Company.
(3) The Agent shall have received evidence of payment by
the Company of all fees, costs and expenses due and payable as of the Effective
Date hereunder and under the Credit Agreement, including any fees arising under
or referenced in Section 5 of this Agreement and the Agent's Attorney Costs, to
the extent invoiced on or prior to the Effective Date.
(4) The Agent shall have received from the Company a copy
of the resolutions passed by the board of directors of the Company, certified as
of the Effective Date by the Secretary or an Assistant Secretary of such Person,
authorizing the execution, delivery and performance of this Agreement, the Notes
to be delivered hereunder and the Credit Agreement (as amended and restated by
this Agreement).
(5) The Agent shall have received an opinion of Gibson
Dunn & Crutcher, special counsel to the Company, addressed to the Agent and the
Lenders, dated the Effective Date, substantially in the form of Exhibit A
hereto.
(6) The Agent shall have received all other documents it
or any Lender may reasonably request relating to any matters relevant hereto,
all in form and substance satisfactory to the Agent and each Lender.
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(7) The representations and warranties in Section 3 of
this Agreement shall be true and correct on and as of the Effective Date with
the same effect as if made on and as of the Effective Date.
For purposes of determining compliance with the conditions
specified in this Section 4(a), each Lender that has executed this Agreement
shall be deemed to have consented to, approved or accepted, or to be satisfied
with, each document or other matter (including any and all items referenced in
subsections 4(a)(1) and (2) and 4(a)(4) through (7)) either sent, or made
available for inspection, by the Agent to such Lender for consent, approval,
acceptance or satisfaction, or required thereunder to be consented to or
approved by or acceptable or satisfactory to such Lender.
(b) From and after the Effective Date, the Credit Agreement is
amended as set forth herein and is restated in its entirety to read as set forth
in the Credit Agreement with the amendments specified herein and all outstanding
Notes under the Credit Agreement shall be superseded and replaced by the Notes
delivered under this Agreement. All such previously outstanding Notes will be
deemed cancelled upon the occurrence of the Effective Date. The Credit Agreement
(as amended and restated by this Agreement) is hereby ratified and confirmed in
all respects.
(c) The Agent will notify the Company and the Lenders of the
occurrence of the Effective Date.
5. Fees. The Company shall pay to the Agent the fees set forth in that certain
letter agreement dated as of March 26, 1999, by and between the Company and the
Agent. Such fees shall be due and payable by the Company on the date set forth
in such letter agreement.
6. Certain Transitional Matters. On the Effective Date, the amount of Revolving
Loans and Term Loans then outstanding and held by each Lender shall be adjusted
to reflect the changes in the Lenders' Pro Rata Shares of the Revolving Loans
and Term Loans, subject to Section 3.04 of the Credit Agreement. Each Lender
having Revolving Loans and Term Loans then outstanding and whose Pro Rata Share
in respect of Revolving Loans and Term Loans has been decreased on the Effective
Date as a result of the increase in the aggregate Revolving Commitments and
aggregate Term Commitments contemplated hereby shall be deemed to have assigned
on the Effective Date, without recourse, to each Lender increasing its Revolving
Commitment and Term Commitment on the Effective Date such portion of such
Revolving Loans and Term Loans as shall be necessary to effectuate such
adjustment. Each such Lender increasing its Revolving Commitment and Term
Commitment on the Effective Date shall (i) be deemed to have assumed such
portion of such Revolving Loans and Term Loans and (ii) fund on the Effective
Date such assumed amounts to the Agent for the account of the assigning Lender
in accordance with the provisions hereof in the amount notified to such
increasing Lender by the Agent. All amounts funded on the Effective Date by any
Lender in respect of its Term Commitment shall constitute "Term Loans" under and
for all purposes of the Credit Agreement and the other Loan Documents. In
connection with certain contemplated post-closing assignments of a portion of
the Term Loans of Antares Capital Corporation to Pilgrim Prime Rate Trust,
Sequils Pilgrim I, Ltd. and ML CLO XX Pilgrim American (Cayman) Ltd., the
parties hereto agree to a one-time
4.
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waiver of Section 10.08 of the Credit Agreement insofar as it requires
assignments thereunder to be in minimum increments of $5,000,000, in order to
permit Antares Capital Corporation to assign a portion of its Term Loans to each
of Pilgrim Prime Rate Trust, Sequils-Pilgrim I, Ltd. and ML CLO XX Pilgrim
American (Cayman) Ltd. in increments of $3,000,000 each.
7. Miscellaneous.
(a) Each Loan Party acknowledges and agrees that the execution
and delivery by the Agent and the Lenders of this Agreement shall not be deemed
to create a course of dealing or an obligation to execute similar waivers or
amendments under the same or similar circumstances in the future.
(b) This Agreement shall be binding upon and inure to the benefit
of the parties hereto and thereto and their respective successors and assigns.
(c) This Agreement shall be governed by and construed in
accordance with the law of the State of New York, provided that the Agent and
the Lenders shall retain all rights arising under Federal law.
(d) This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original, but all such counterparts together
shall constitute but one and the same instrument. Each of the parties hereto
understands and agrees that this document (and any other document required
herein) may be delivered by any party thereto either in the form of an executed
original or an executed original sent by facsimile transmission to be followed
promptly by mailing of a hard copy original, and that receipt by the Agent of a
facsimile transmitted document purportedly bearing the signature of a Lender or
any Loan Party shall bind such Lender or such Loan Party, respectively, with the
same force and effect as the delivery of a hard copy original. Any failure by
the Agent to receive the hard copy executed original of such document shall not
diminish the binding effect of receipt of the facsimile transmitted executed
original of such document of the party whose hard copy page was not received by
the Agent.
(e) This Agreement contains the entire and exclusive agreement of
the parties hereto with reference to the matters discussed herein. This
Agreement supersedes all prior drafts and communications with respect hereto or
thereto. This Agreement may not be amended except in accordance with the
provisions of Section 10.01 of the Credit Agreement.
(f) If any term or provision of this Agreement shall be deemed
prohibited by or invalid under any applicable law, such provision shall be
invalidated without affecting the remaining provisions of this Agreement, the
Credit Agreement or the Loan Documents.
(g) The Company agrees to pay or reimburse BofA (including in its
capacity as Agent), upon demand, for all reasonable costs and expenses
(including reasonable Attorney Costs) incurred by BofA (including in its
capacity as Agent) in connection with the development, preparation, negotiation,
execution and delivery of this Agreement.
[signature pages follow]
5.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed and delivered in San Francisco, California by their proper
and duly authorized officers as of the day and year first above written.
ENTERPRISE PROFIT SOLUTIONS CORPORATION
By:
---------------------------------
Title:
---------------------------------
THE SUBSIDIARIES LISTED ON ANNEX I
By:
---------------------------------
Title:
---------------------------------
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, AS AGENT AND BANK
By:
---------------------------------
Kevin Leader, Vice President
ANTARES CAPITAL CORPORATION
By:
---------------------------------
Title:
---------------------------------
ARCHIMEDES FUNDING II, LTD.
By: ING Capital Advisors LLC, as
Collateral Manager
By:
---------------------------------
Title:
---------------------------------
6.
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COMERICA WEST INCORPORATED
By:
---------------------------------
Title:
---------------------------------
GREEN TREE FINANCIAL SERVICING
CORPORATION
By:
---------------------------------
Title:
---------------------------------
HELLER FINANCIAL, INC.
By:
---------------------------------
Title:
---------------------------------
ING (U.S.) CAPITAL LLC
By:
---------------------------------
Title:
---------------------------------
THE ING CAPITAL SENIOR SECURED
HIGH INCOME FUND, L.P.
By: ING Capital Advisors LLC,
as Investment Advisor
By:
---------------------------------
Title:
---------------------------------
7.
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KEY CORPORATE CAPITAL, INC.
By:
---------------------------------
Title:
---------------------------------
KEYPORT LIFE INSURANCE COMPANY
By: STEIN ROE & FARMHAM INCORPORATED,
as Agent for KEYPORT LIFE INSURANCE
COMPANY
By:
---------------------------------
Title:
---------------------------------
ML CLO XX PILGRIM AMERICA (CAYMAN) LTD.
(AS ASSIGNEE)
By: Pilgrim Investments, Inc.
as its Investment Manager
By:
---------------------------------
Title:
---------------------------------
PILGRIM PRIME RATE TRUST
By: Pilgrim Investments, Inc.
as its Investment Manager
By:
---------------------------------
Title:
---------------------------------
8.
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SEQUILS - PILGRIM I, LTD. (AS ASSIGNEE)
By: Pilgrim Investments, Inc.
as its Investment Manager
By:
---------------------------------
Title:
---------------------------------
SRF TRADING, INC.
By:
---------------------------------
Title:
---------------------------------
STEIN ROE FLOATING RATE LIMITED
LIABILITY COMPANY
By:
---------------------------------
Title:
---------------------------------
TRANSAMERICA BUSINESS CREDIT CORPORATION
By:
---------------------------------
Title:
---------------------------------
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EPS SOLUTIONS CORPORATION
By:
---------------------------------
Title:
---------------------------------
By:
---------------------------------
Title:
---------------------------------
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CONSENT AND AGREEMENT OF GUARANTORS
Each of the undersigned, in its capacity as a Guarantor,
acknowledges that its consent to the foregoing Amended and Restated Credit
Agreement (the "Agreement") is not required, but each of the undersigned
nevertheless does hereby consent to the foregoing Agreement and to the documents
and agreements referred to therein. Nothing herein shall in any way limit any of
the terms or provisions of the Guaranty of the undersigned or the Collateral
Documents executed by the undersigned in the Agent's and the Lenders' favor, or
any other Loan Document executed by the undersigned (as the same may be amended
from time to time), all of which are hereby ratified and affirmed in all
respects.
GUARANTORS:
EPS SOLUTIONS CORPORATION,
as a Guarantor
By:
--------------------------------
Title:
--------------------------------
By:
--------------------------------
Title:
--------------------------------
THE SUBSIDIARIES LISTED ON ANNEX I,
as Guarantors
By:
--------------------------------
Title:
--------------------------------
11.
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SCHEDULE 2.01
COMMITMENTS AND PRO RATA SHARES
PRO RATA PRO RATA
SHARE SHARE
TERM REVOLVING (TERM (REVOLVING
LENDERS COMMITMENT COMMITMENT COMMITMENT) COMMITMENT)
- ------- -------------- -------------- ------------ ------------
Antares Capital Corporation $16,871,428.57 $11,128,571.43 14.838095240% 14.838095240%
Archimedes Funding II, Ltd. $ 5,000,000.00 $ 0.00 7.142857143% 0.000000000%
Bank of America National Trust and Savings Association $ 9,321,428.57 $13,178,571.43 13.316326529% 17.571428573%
Comerica West Incorporated $ 3,107,142.86 $ 4,392,857.14 4.438775514% 5.857142853%
Green Tree Financial Servicing Corporation $ 0.00 $13,500,000.00 0.000000000% 18.000000000%
Heller Financial, Inc. $ 5,592,857.15 $ 7,907,142.85 7.989795929% 10.542857133%
ING (U.S.) Capital LLC $ 9,321,428.57 $13,178,571.43 13.316326529% 17.571428573%
Key Corporate Capital Inc. $ 4,142,857.14 $ 5,857,142.86 5.918367343% 7.809523813%
Keyport Life Insurance Company $ 4,000,000.00 $ 0.00 5.714285714% 0.000000000%
SFR Trading, Inc. $ 5,000,000.00 $ 0.00 7.142857143% 0.000000000%
Stein Roe Floating Rate Limited Liability Company $ 1,000,000.00 $ 0.00 1.428571429% 0.000000000%
The ING Capital Senior Secured High Income Fund, L.P. $ 2,500,000.00 $ 0.00 3.571428571% 0.000000000%
Transamerica Business Credit Corporation $ 4,142,857.14 $ 5,857,142.86 5.918367343% 7.809523813%
-------------- -------------- ----------- -----------
TOTAL $ 70,000,000 $ 75,000,000 100.000000000% 100.000000000%
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Annex I
Bay Group International, Inc.
Hindert & Associates, Inc.
Hindert Agency, Inc.
Benefit Designs, Inc.
Benefit Designs International, Inc.
Benefit Funding Services Group, LLC
Benefit Funding Services, LLC
Better Communications, Inc.
TSL Services, Inc.
D'Accord Holdings Inc.
D'Accord Group, Inc.
D'Accord Incorporated
D'Accord Financial Services, Inc.
D'Accord International Services, Inc.
D'Accord Asset Management, Inc.
Dimension Funding, Inc.
Disbursement Recovery Services, L.L.C.
D.L.D. Insurance Brokers, Inc.
FFR Holding Co., Inc.
First Financial Resources Management Co. Inc.
First Financial Resources, Inc.
FFP Insurance Services, Inc. (Nevada)
FFP Insurance Services, Inc. (California)
Holden Corporation
Lease Audit & Analysis Services, Inc.
National Benefits Consultants, L.L.C.
National Healthcare Recovery Services, L.L.C.
National Recovery Services, LLC
National RevMax Consultants, LLC
The Oxxford Consulting Group, Inc.
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Partners Consulting Services, Inc.
Pritchett Publishing Company
Sigma International, Inc.
The Dublin Group, Inc.
The Structured Settlements Company, Inc.
The Wadley-Donovan Group, Ltd.
Young, Clark & Associates, Inc.
Praxis Development LC
The Praxis Group, Inc.
The Praxis Institute, Inc.
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FIRST AMENDMENT TO CREDIT AGREEMENT AND WAIVER
THIS FIRST AMENDMENT TO CREDIT AGREEMENT AND WAIVER (this
"Amendment") dated as of March 17, 1999 is entered into among Enterprise Profit
Solutions Corporation, a Delaware corporation (the "Company"), EPS Solutions
Corporation (f/k/a ProfitSource Corporation), a Delaware corporation, certain
other affiliates of the Company, the several financial institutions party to the
Credit Agreement referred to below (collectively, the "Lenders"), Bank of
America National Trust and Savings Association, as administrative agent for
itself and the other Lenders, Antares Capital Corporation, as documentation
agent, and ING (U.S.) Capital LLC, as managing agent.
RECITALS
A. The parties hereto have entered into a Credit Agreement dated
as of December 7, 1998 (the "Credit Agreement"), pursuant to which the Lenders
agreed to make available to the Company a term loan and revolving credit
facility. The "Closing Date" under the Credit Agreement was December 14, 1998.
B. The Company has requested that the Credit Agreement be amended
to (i) increase the Revolving Commitments of Bank of America National Trust and
Savings Association ("BofA") and Antares Capital Corporation ("Antares") by
$5,000,000 each and (ii) amend part B of Schedule 1.01 to the Credit Agreement
to modify the list of Persons (or assets of such Persons) that may be acquired
pursuant to a Secondary Acquisition, and the Lenders or the Majority Lenders, as
required, are willing to so amend the Credit Agreement subject to the terms and
conditions of this Amendment.
C. The Company has requested that the Majority Lenders provide a
further waiver of the requirement under Section 1.01 of the Credit Agreement
that all Secondary Acquisitions be consummated not later than 60 days after the
Closing Date and allow the Company until March 19, 1999 to consummate the
Secondary Acquisitions, and the Majority Lenders are willing to so waive such
requirement and grant such extension subject to the terms and conditions of this
Amendment.
AGREEMENTS
NOW, THEREFORE, in consideration of the premises and the mutual
promises herein contained, the parties hereto agree as follows:
1. Capitalized Terms. Capitalized terms used in this Amendment
(including in the Recitals hereof and in the Consent and Agreement of Guarantors
attached hereto) and not otherwise defined shall have the respective meanings
set forth in the Credit Agreement.
2. Amendments.
a. Subject to the terms and conditions set forth herein,
the Lenders hereby agree to amend the Credit Agreement as follows: Schedule 2.01
(entitled "Commitments and Pro Rata Shares") is hereby amended and restated in
its entirety in the form of Annex A attached hereto.
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b. Subject to the terms and conditions set forth herein,
the Majority Lenders hereby agree to amend the Credit Agreement as follows: Part
B of Schedule 1.01 (entitled "Founding Companies") is hereby amended and
restated in its entirety in the form of Annex B attached hereto.
3. Waiver Subject to the terms and conditions set forth herein,
the Majority Lenders hereby agree to waive compliance by the Company with
Section 1.01 of the Credit Agreement insofar as any Acquisition, which would
otherwise be a Secondary Acquisition under Section 1.01 of the Credit Agreement,
is not a Secondary Acquisition because such Acquisition is consummated later
than 60 days after the Closing Date; provided, however, that any such
Acquisition shall be a Secondary Acquisition only if such Acquisition is
consummated not later than March 19, 1999.
4. Fees. The Company shall pay to the Agent for the account of
each of BofA and Antares the fees set forth in that certain letter agreement
dated as of the date hereof by and between the Company and the Agent. Such fees
shall be due and payable by the Company upon its execution of this Amendment.
5. Certain Transitional Matters. On the Effective Date (as
defined in Section 7 below), the amount of Revolving Loans then outstanding and
held by each Lender shall be adjusted to reflect the changes in the Lenders' Pro
Rata Shares of the Revolving Loans, subject to Section 3.04 of the Credit
Agreement. Each Lender having Revolving Loans then outstanding and whose Pro
Rata Share in respect of Revolving Loans has been decreased on the Effective
Date as a result of the increase in the aggregate Revolving Commitments
contemplated hereby shall be deemed to have assigned on the Effective Date,
without recourse, to each Lender increasing its Revolving Commitment on the
Effective Date such portion of such Revolving Loans as shall be necessary to
effectuate such adjustment. Each such Lender increasing its Revolving Commitment
on the Effective Date shall (i) be deemed to have assumed such portion of such
Revolving Loans and (ii) fund on the Effective Date such assumed amounts to the
Agent for the account of the assigning Lender in accordance with the provisions
hereof in the amount notified to such increasing Lender by the Agent.
6. Representations and Warranties. Each Loan Party hereby
represents and warrants to the Agent and the Lenders as of the date hereof and
as of the Effective Date (as defined in Section 7 hereof) as follows:
a. No Default or Event of Default has occurred and is
continuing.
b. The execution, delivery and performance by each Loan
Party of this Amendment have been duly authorized by all necessary corporate and
other action and do not and will not require any registration with, consent or
approval of, notice to or action by, any Person (including any Governmental
Authority) in order to be effective and enforceable.
c. This Amendment and the Loan Documents constitute the
legal, valid and binding obligations of each Loan Party, enforceable against it
in accordance with their respective terms, without defense, counterclaim or
offset.
d. All representations and warranties of each Loan Party
contained in the Loan Documents are true and correct.
2.
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e. Each Loan Party is entering into this Amendment on the
basis of its own investigations and for its own reasons, without reliance upon
the Agent, the Lenders or any other Person.
7. Effective Date. The amendments and waiver set forth in
Sections 2 and 3 above will become effective on the date on which all of the
following conditions are and remain satisfied (such date, the "Effective Date"):
(i) the Agent shall have received from each Loan Party and
the Lenders an executed counterpart of this Amendment;
(ii) the Agent shall have received the consent of each
Guarantor in its capacity as such to the execution and delivery hereof;
(iii) the Agent shall have received (A) for the account of
BofA and Antares payment of the fees required under Section 4 hereof and (B) for
the account of the Agent and Antares all accrued and unpaid costs and expenses
(including attorneys' fees) incurred by the Agent and Antares and reimbursable
under Section 10.04 of the Credit Agreement;
(iv) the Agent shall have received a copy of the
resolutions of the Company authorizing the transactions contemplated hereby,
certified as of the Effective Date by the Secretary or Assistant Secretary of
the Company;
(v) the Agent shall have received an opinion of Brian W.
Copple, Esq., General Counsel of the Company, addressed to the Agent and the
Lenders, dated the Effective Date, and otherwise in form and substance
satisfactory the Agent and the Lenders;
(vi) the Secondary Acquisitions shall have been
consummated on the Effective Date substantially concurrently with the
effectiveness of the amendments and waiver contemplated hereby, and all
requirements of the Credit Agreement pertaining thereto (including the
provisions of Section 6.14) shall have been satisfied; and
(vii) the Agent shall have received replacement Notes in
favor of BofA and Antares evidencing the increased Revolving Commitments of BofA
and Antares.
8. Reservation of Rights. Each Loan Party acknowledges and agrees
that the execution and delivery by the Agent and the Lenders of this Amendment
shall not be deemed to create a course of dealing or an obligation to execute
similar waivers or amendments under the same or similar circumstances in the
future.
9. Miscellaneous.
a. Except as expressly amended or waived herein, all
terms, covenants and provisions of the Loan Documents are and shall remain in
full force and effect, without defense, offset or counterclaim.
b. This Amendment shall be binding upon and inure to the
benefit of each Loan Party, the Agent and the Lenders and their respective
successors and assigns. No third party beneficiaries are intended in connection
with this Amendment.
3.
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c. This Amendment shall be governed by and construed in
accordance with the law of the State of New York, provided that the Agent and
the Lenders shall retain all rights arising under Federal law.
d. This Amendment may be executed in any number of
counterparts, each of which shall be deemed an original, but all such
counterparts together shall constitute but one and the same instrument. Each of
the parties hereto understands and agrees that this Amendment (and any other
document required herein) may be delivered by any party thereto either in the
form of an executed original or an executed original sent by facsimile
transmission to be followed promptly by mailing of a hard copy original, and
that receipt by the Agent of a facsimile transmitted document purportedly
bearing the signature of the Company, any other Loan Party or any Lender will
have the same force and effect as the delivery of a hard copy original. Any
failure by the Agent to receive the hard copy executed original of such document
shall not diminish the binding effect of receipt of the facsimile transmitted
executed original of such document of the party whose hard copy page was not
received by the Agent.
e. This Amendment contains the entire and exclusive
agreement of the parties hereto with reference to the matters discussed herein.
This Amendment supersedes all prior drafts and communications with respect
hereto or thereto. This Amendment may not be amended except in accordance with
the provisions of Section 10.01 of the Credit Agreement.
f. If any term or provision of this Amendment shall be
deemed prohibited by or invalid under any applicable law, such provision shall
be invalidated without affecting the remaining provisions of this Amendment or
the Loan Documents.
g. The Company covenants to pay or reimburse the Agent and
the Lenders, upon demand, for all reasonable costs and expenses (including
allocated costs of in-house counsel) incurred in connection with the
development, preparation, negotiation, execution and delivery of this Amendment.
[Signatures follow.]
4.
20
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
to be executed by their duly authorized officers as of the day and year first
written above.
EPS SOLUTIONS CORPORATION
By:
---------------------------------
Title:
---------------------------------
By:
---------------------------------
Title:
---------------------------------
ENTERPRISE PROFIT SOLUTIONS CORPORATION
By:
---------------------------------
Title:
---------------------------------
THE SUBSIDIARIES LISTED ON ANNEX I
By:
---------------------------------
Title:
---------------------------------
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION,
as Agent and as a Lender
By:
---------------------------------
Title:
---------------------------------
5.
21
ANTARES CAPITAL CORPORATION,
as Documentation Agent and a Lender
By:
---------------------------------
Title:
---------------------------------
ING (U.S.) CAPITAL LLC,
as Managing Agent and a Lender
By:
---------------------------------
Title:
---------------------------------
6.
22
CONSENT AND AGREEMENT OF GUARANTORS
Each of the undersigned, in its capacity as a Guarantor,
acknowledges that its consent to the foregoing First Amendment to Credit
Agreement and Waiver (the "Amendment") is not required, but each of the
undersigned nevertheless does hereby consent to the foregoing Amendment and to
the documents and agreements referred to therein. Nothing herein shall in any
way limit any of the terms or provisions of the Guaranty of the undersigned or
the Collateral Documents executed by the undersigned in the Agent's and the
Lenders' favor, or any other Loan Document executed by the undersigned (as the
same may be amended from time to time), all of which are hereby ratified and
affirmed in all respects.
GUARANTORS:
EPS SOLUTIONS CORPORATION,
as a Guarantor
By:
--------------------------------
Title:
--------------------------------
By:
--------------------------------
Title:
--------------------------------
THE SUBSIDIARIES LISTED ON ANNEX I,
as Guarantors
By:
--------------------------------
Title:
--------------------------------
7.