Exhibit 10.24
WAIVER AND AMENDMENT
WAIVER AND AMENDMENT, dated as of January 16, 2001 (this
"Waiver and Amendment"), to the Amended and Restated Credit Agreement, dated as
of April 18, 2000 (the "Credit Agreement"), among NCI ACQUISITION CORPORATION, a
Delaware corporation ("Holdings"), NATIONWIDE CREDIT, INC., a Georgia
corporation (the "Borrower"), the several banks and other financial institutions
or entities from time to time parties to the Credit Agreement (the "Lenders"),
LEHMAN BROTHERS INC., as advisor and arranger (in such capacity, the
"Arranger"), LEHMAN COMMERCIAL PAPER INC., as syndication agent (in such
capacity, the "Syndication Agent"), FLEET CAPITAL CORPORATION, as administrative
agent (in such capacity, the "Administrative Agent"), and BHF (USA) CAPITAL
CORPORATION, as Documentation Agent (in such capacity, the "Documentation
Agent").
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, the parties hereto wish to waive certain
provisions of the Credit Agreement and amend other provisions
of the Credit Agreement, in each case on the terms set forth herein;
NOW, THEREFORE, in consideration of the premises and of the
mutual agreements herein contained, the parties hereto agree as follows:
1. Definitions. Unless otherwise defined herein, terms
defined in the Credit Agreement and used herein shall have the meanings given to
them in the Credit Agreement.
2. Waiver of Section 7.1. (a) The Administrative Agent and
the Lenders hereby waive effective January 12, 2001 compliance with Section
7.1(a) of the Credit Agreement for the period of four consecutive fiscal
quarters of the Borrower ending with the fiscal quarter ended September 30,
2000; provided that this waiver is conditioned on the Borrower's Minimum
Consolidated EBITDA being not less than $17,050,000 for such period of four
consecutive fiscal quarters.
(b) The Administrative Agent and the Lenders hereby waive
effective January 12, 2001 compliance with Section 7.1(b) of the Credit
Agreement for the period of four consecutive fiscal quarters of the Borrower
ending with the fiscal quarter ended September 30, 2000; provided that this
waiver is conditioned on the Borrower's Consolidated Total Debt Ratio not
exceeding 8.00 to 1.00 for such period of four consecutive fiscal quarters.
(c) The Administrative Agent and the Lenders hereby waive
effective January 12, 2001 compliance with Section 7.1(c) of the Credit
Agreement for the period of four consecutive fiscal quarters of the Borrower
ending with the fiscal quarter ended September 30, 2000; provided that this
waiver is conditioned on the Borrower's Consolidated Interest Coverage Ratio
being not less than 1.25 to 1.00 for such period of four consecutive fiscal
quarters.
3. Amendments to Section 1.1. (a) Section 1.1 of the Credit
Agreement is hereby amended by (i) deleting from the definition of "Aggregate
Exposure" the word "and" where it appears in the fourth line thereof and
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inserting in lieu thereof "," and (ii) inserting immediately before the period
at the end of such definition the following:
", (iv) the amount of such Lender's Overadvance Commitment
or, if the Overadvance Commitments have been terminated,
the amount of such Lender's Overadvance Extensions of
Credit and (v) the amount of such Lender's Customer
Commitment or, if the Customer Commitments have been
terminated, the amount of such Lender's Customer Extensions
of Credit."
(b) Section 1.1 of the Credit Agreement is hereby further
amended by inserting the following sentence at the end of the definition of
"Applicable Margin":
"Notwithstanding the foregoing, the Applicable Margin for
Overadvance Loans and Customer Loans shall be 3.75%, except
that after December 31, 2001, the Applicable Margin for
Overadvance Loans shall be the same as set forth herein for
Revolving Credit Loans."
(c) Section 1.1 of the Credit Agreement is hereby further
amended by (i) deleting from the definition of "Commitment" the word "and" where
it appears in the second line thereof and inserting in lieu thereof "," and (ii)
adding immediately after the words "Revolving Credit Commitment" where they
appear in such definition the following:
", the Overadvance Commitment and the Customer Commitment".
(d) Section 1.1 of the Credit Agreement is hereby further
amended by adding the following clause to the end of the definition of
"Consolidated EBITDA":
"; provided, that for the purposes of determining
Consolidated EBITDA for the fiscal quarters of the Borrower ending March 31,
2001, June 30, 2001, and September 30, 2001, Consolidated EBITDA for the
relevant period shall be deemed to equal Consolidated EBITDA for such fiscal
quarter (and, in the case of the latter two such determinations, each previous
fiscal quarter commencing after January 1, 2001), multiplied by 4, 2 and 4/3,
respectively."
(e) Section 1.1 of the Credit Agreement is hereby further
amended by deleting from clause (a) of the definition of "Eligible Accounts" the
number "90" and inserting in lieu thereof the number "120".
(f) Section 1.1 of the Credit Agreement is hereby further
amended by replacing in the definition of "Equity Investors" the reference to
"WPG Corporate Development Associates V, L.P." and substituting in lieu thereof
"WPG Corporate Development Associates V, L.L.C.".
(f) Section 1.1 of the Credit Agreement is hereby further
amended by inserting immediately before the period at the end of the definition
of "Facility" the following:
"and (d) the Overadvance Commitments and the extensions of
credit made thereunder (the "Overadvance Facility") and (e)
the Customer Commitments and the extensions of credit made
thereunder (the "Customer Facility")".
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(g) Section 1.1 of the Credit Agreement is hereby further
amended by deleting the definition of "Majority Facility Lenders" in its
entirety and substituting in lieu thereof the following:
"`Majority Facility Lenders': with respect to any Facility,
the holders of more than 51% of the aggregate unpaid
principal amount of the Tranche B Term Loans, Tranche C
Term Loans, the Total Revolving Extensions of Credit, the
Total Overadvance Extensions of Credit or the Total
Customer Extensions of Credit, as the case may be,
outstanding under such Facility (or, in the case of (x) the
Revolving Credit Facility, prior to any termination of the
Revolving Credit Commitments, the holders of more than 51%
of the Total Revolving Credit Commitments, (y) the
Overadvance Facility, prior to any termination of the
Overadvance Commitments, the holders of more than 51% of
the Total Overadvance Commitments and (z) the Customer
Facility, prior to any termination of the Customer
Commitments, the holders of more than 51% of the Total
Customer Commitments)."
(h) Section 1.1 of the Credit Agreement is hereby further
amended by (i) deleting from the definition of "Required Lenders" the word "and"
where it appears in the fourth line thereof and inserting in lieu thereof ","
and (ii) inserting immediately before the period at the end of such definition
the following:
", (iv) the Total Overadvance Commitments or, if the
Overadvance Commitments have been terminated, the Total
Overadvance Extensions of Credit and (v) the Total Customer
Commitments or, if the Customer Commitments have been
terminated, the Total Customer Extensions of Credit."
(i) Section 1.1 of the Credit Agreement is hereby further
amended by deleting the definition of "Total Revolving Credit Commitments" in
its entirety and substituting in lieu thereof the following:
"'Total Revolving Credit Commitments': at any time,
the aggregate amount of the Revolving Credit
Commitments at such time."
(j) Section 1.1 of the Credit Agreement is hereby further
amended by adding thereto each of the following new definitions in its
appropriate alphabetical order:
"Amendment Effective Date": the "Effective Date" as
defined in the Waiver and Amendment.
"Available Customer Commitment": as to any Customer
Lender at any time, an amount equal to the excess, if
any, of (a) such Lender's Customer Commitment over
(b) such Lender's Customer Extensions ---- of Credit.
"Available Overadvance Commitment": as to any
Overadvance Lender at any time, an amount equal to
the excess, if any, of (a) such Lender's Overadvance
Commitment over (b) such Lender's Overadvance ----
Extensions of Credit.
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"Consolidated Senior Secured Debt": at any date, the
aggregate principal amount of all Indebtedness of the
Borrower and its Subsidiaries at such date outstanding
under this Agreement, determined on a consolidated basis in
accordance with GAAP.
"Consolidated Senior Secured Debt Ratio": as at the last
day of any period of four fiscal quarters the ratio of (a)
Consolidated Senior Secured Debt on such day to (b)
Consolidated EBITDA for such period.
"Customer Commitment": as to any Lender, the obligation of
such Lender, if any, to make Customer Loans, in an
aggregate principal amount not to exceed the amount set
forth under the heading "Customer Credit Commitment"
opposite such Lender's name on Schedule 1.1A or in the
Assignment and Acceptance pursuant to which such Customer
Lender became a party hereto, as the same may be changed
from time to time pursuant to the terms hereof. The
original amount of the Total Customer Commitments on the
Amendment Effective Date is $2,000,000.
"Customer Commitment Period": the period from and including
the Amendment Effective Date to the Customer Termination
Date.
"Customer Extensions of Credit": as to any Customer Lender
at any time, an amount equal to the aggregate principal
amount of all Customer Loans made by such Lender then
outstanding.
"Customer Lender": each Lender which has a Customer
Commitment or which has made Customer Loans.
"Customer Loans": as defined in Section 2.24(a).
"Customer Percentage": as to any Customer Lender at any
time, the percentage which such Lender's Customer
Commitment then constitutes of the Total Customer
Commitments (or, at any time after the Customer Commitments
shall have expired or terminated, the percentage which the
aggregate principal amount of such Lender's Customer Loans
then outstanding constitutes of the aggregate principal
amount of the Customer Loans then outstanding).
"Customer Termination Date": December 31, 2001.
"Majority Overadvance Facility Lenders": the Majority
Facility Lenders in respect of the Overadvance Facility.
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"Majority Customer Facility Lenders": the Majority Facility
Lenders in respect of the Customer Facility.
"Overadvance Commitment": as to any Lender, the obligation
of such Lender, if any, to make Overadvance Loans, in an
aggregate principal amount not to exceed the amount set
forth under the heading " Overadvance Commitment" opposite
such Lender's name on Schedule 1.1A or in the Assignment
and Acceptance pursuant to which such Overadvance Lender
became a party hereto, as the same may be changed from time
to time pursuant to the terms hereof. The original amount
of the Total Overadvance Commitments on the Amendment
Effective Date is $2,000,000.
"Overadvance Commitment Period": the period from and
including the Amendment Effective Date to the Overadvance
Termination Date.
"Overadvance Extensions of Credit": as to any Overadvance
Lender at any time, an amount equal to the aggregate
principal amount of all Overadvance Loans made by such
Lender then outstanding.
"Overadvance Lender": each Lender which has an Overadvance
Commitment or which has made Overadvance Loans.
"Overadvance Loans": as defined in Section 2.23(a).
"Overadvance Percentage": as to any Overadvance Lender at
any time, the percentage which such Lender's Overadvance
Commitment then constitutes of the Total Overadvance
Commitments (or, at any time after the Overadvance
Commitments shall have expired or terminated, the
percentage which the aggregate principal amount of such
Lender's Overadvance Loans then outstanding constitutes of
the aggregate principal amount of the Overadvance Loans
then outstanding).
"Overadvance Termination Date": the later of (a) December
31, 2001 and (b) so long as the Collateral Monitoring Agent
determines in its reasonable judgment that the Borrowing
Base on December 31, 2001 is at least $12,500,000, January
28, 2004.
"Total Customer Commitments": at any time, the aggregate
amount of the Customer Commitments at such time.
"Total Customer Extensions of Credit": at any time, the
aggregate amount of the Customer Extensions of Credit of
the Customer Lenders at such time.
"Total Overadvance Commitments": at any time, the aggregate
amount of the Overadvance Commitments at such time.
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"Total Overadvance Extensions of Credit": at any time, the
aggregate amount of the Overadvance Extensions of Credit of
the Overadvance Lenders at such time.
"Waiver and Amendment"" the Waiver and Amendment dated
January 16, 2001 in respect of this Credit Agreement.
4. Amendment to Section 2. Section 2 of the Credit
Agreement is hereby amended by adding at the end thereof the following new
Sections 2.23 and 2.24:
"2.23. Overadvance Loans. (a) Subject to the terms and
conditions hereof, each Overadvance Lender severally agrees
to make revolving credit loans ("Overadvance Loans") to the
Borrower from time to time during the Overadvance
Commitment Period in an aggregate principal amount at any
one time outstanding which does not exceed the amount of
such Lender's Overadvance Commitment; provided that the
Borrower complies with the provisions of Sections 2.23(c)
and (d). During the Overadvance Commitment Period the
Borrower may use the Overadvance Commitments by borrowing,
prepaying the Overadvance Loans in whole or in part, and
reborrowing, all in accordance with the terms and
conditions hereof. The Overadvance Loans may from time to
time be Eurodollar Loans or Base Rate Loans, as determined
by the Borrower and notified to the Administrative Agent in
accordance with Sections 2.5 and 2.11; provided that (i) no
Overadvance Loan shall be made as a Eurodollar Loan after
the day that is one month prior to the Overadvance
Termination Date and (ii) prior to January 1, 2002,
Overadvance Loans shall be made as Base Rate Loans only.
(b) The Borrower shall repay all outstanding Overadvance
Loans on the Overadvance Termination Date.
(c) Notwithstanding anything herein to the contrary, prior
to December 31, 2001, the Borrower may not borrow
Overadvance Loans to the extent that at such time the
Borrower is not prohibited by the Borrowing Base
requirements of this Agreement to borrow Revolving Credit
Loans.
(d) After December 31, 2001, the Borrower may only borrow
Overadvance Loans to the extent that the Borrowing Base as
of the date of the proposed borrowing of Overadvance Loans
equals or exceeds the sum of (i) the Total Revolving
Extensions of Credit and (ii) the Total Overadvance
Extensions of Credit outstanding on such date after giving
effect to any borrowings on such date.
2.24 Customer Loans. (a) Subject to the terms and
conditions hereof, each Customer Lender severally agrees to
make revolving credit loans ("Customer Loans") to the
Borrower from time to time during the Customer Commitment
Period in an aggregate principal amount at any one time
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outstanding which does not exceed the amount of such
Lender's Customer Commitment. During the Customer
Commitment Period the Borrower may use the Customer
Commitments by borrowing, prepaying the Customer Loans in
whole or in part, and reborrowing, all in accordance with
the terms and conditions hereof. Customer Loans shall be
made as Base Rate Loans only.
(b) The Borrower shall repay (i) each Customer Loan within
5 Business Days of the making of such Customer Loan and
(ii) all outstanding Customer Loans on the Customer
Termination Date."
5. Amendment to Section 2.4. (a) Section 2.4(a) of the
Credit Agreement is hereby amended by inserting the following in the first
sentence therein immediately prior to the reference to "; provided":
"(such Borrowing Base being reduced for purposes hereof to
the extent it supports Overadvance Loans at any time)"
(b) Section 2.4(c) of the Credit Agreement is hereby
amended by deleting such Section in its entirety and substituting in lieu
thereof the following:
"(c) If on any date (x) prior to December 31, 2001 or (y)
after December 31, 2001 on which Overadvance Commitments
are not outstanding, the Total Revolving Extensions of
Credit as of such date exceed the lesser of (i) the then
applicable Borrowing Base and (ii) the Total Revolving
Credit Commitments as of such date, then, without notice or
demand, the Borrower shall, on such date, prepay the
Revolving Credit Loans and, if necessary, cash
collateralize (on terms and conditions satisfactory to the
Administrative Agent) the Letters of Credit in an aggregate
principal amount equal to such excess. If on any date after
December 31, 2001 on which Overadvance Commitments are
outstanding, the sum of the Total Revolving Extensions of
Credit plus the Total Overadvance Extensions of Credit as
of such date exceeds the lesser of (i) the then applicable
Borrowing Base and (ii) the sum of the Total Revolving
Credit Commitments plus the Total Overadvance Commitments
as of such date, then, without notice or demand, the
Borrower shall, on such date and on a pro rata basis (as
between the Overadvance Commitments and the Revolving
Credit Commitments), prepay the Overadvance Loans, the
Revolving Credit Loans and, if necessary, cash
collateralize (on terms and conditions satisfactory to the
Administrative Agent) the Letters of Credit in an aggregate
principal amount equal to such excess."
6. Amendment to Section 2.5. Section 2.5 of the Credit
Agreement is hereby amended by deleting such Section in its entirety and
substituting in lieu thereof the following:
"2.5. Procedure for Borrowing. The Borrower may borrow
under the Revolving Credit Commitments, the Overadvance
Commitments and the Customer Commitments during the
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Revolving Credit Commitment Period, the Overadvance
Commitment Period or the Customer Commitment Period, as the
case may be, on any Business Day, provided that the
Borrower shall give the Administrative Agent irrevocable
notice (which notice must be received by the Administrative
Agent (a) prior to 12:00 Noon, New York City time, three
Business Days prior to the requested Borrowing Date, in the
case of Eurodollar Loans, or (b) prior to 10:00 A.M., New
York City time, on the requested Borrowing Date, in the
case of Base Rate Loans), specifying (i) if applicable, the
amount and Type of Loans to be borrowed, (ii) the requested
Borrowing Date and (iii) in the case of Eurodollar Loans,
the length of the initial Interest Period therefor. Each
borrowing under the Revolving Credit Commitments shall be
in an amount equal to (x) in the case of Base Rate Loans,
$500,000 or a whole multiple of $100,000 in excess thereof
(or, if the then aggregate Available Revolving Credit
Commitments are less than $500,000, such lesser amount) and
(y) in the case of Eurodollar Loans, $1,000,000 or a whole
multiple of $1,000,000 in excess thereof. Each borrowing
under the Overadvance Commitments shall be in an amount
equal to $500,000 or a whole multiple of $100,000 in excess
thereof (or, if the then aggregate Available Overadvance
Commitments are less than $500,000, such lesser amount).
Each borrowing under the Customer Commitments shall be in
an amount equal to $250,000 or a whole multiple of $100,000
in excess thereof (or, if the then aggregate Available
Customer Commitments are less than $250,000, such lesser
amount) and shall not be in an amount in excess of that
permitted by Section 4.16. No more than two borrowings in
respect of the Customer Commitments shall be permitted per
month. Upon receipt of any such notice from the Borrower,
the Administrative Agent shall promptly notify each
Revolving Credit Lender, Overadvance Lender or Customer
Lender, as the case may be, thereof. Each Revolving Credit
Lender, Overadvance Lender and Customer Lender, as the case
may be, will make the amount of its pro rata share of each
borrowing available to the Administrative Agent for the
account of the Borrower at the Funding Office prior to
12:00 Noon, New York City time, on the Borrowing Date
requested by the Borrower in funds immediately available to
the Administrative Agent. Such borrowing will then be made
available to the Borrower by the Administrative Agent in
like funds as received by the Administrative Agent."
7. Amendment to Section 2.6(a). Section 2.6(a) of the
Credit Agreement is hereby amended by deleting such Section in its entirety and
substituting in lieu thereof the following:
"(a) The Borrower hereby unconditionally promises to pay to
the Administrative Agent for the account of the appropriate
Revolving Credit Lender, Overadvance Lender, Customer
Lender, Tranche B Term Loan Lender or Tranche C Term Loan
Lender, as the case may be, (i) the then unpaid principal
amount of each Revolving Credit Loan of such Revolving
Credit Lender on the Revolving Credit Termination Date (or
on such earlier date on which the Loans become due and
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payable pursuant to Section 8), (ii) the then unpaid
principal amount of each Overadvance Loan of such
Overadvance Lender on the Overadvance Termination Date (or
on such earlier date on which the Loans become due and
payable pursuant to Section 8), (iii) the then unpaid
principal amount of each Customer Loan of such Customer
Lender on the Customer Termination Date (or on such earlier
date on which the Loans become due and payable pursuant to
Section 8), (iv) the principal amount of each Tranche B
Term Loan of such Tranche B Term Loan Lender in
installments according to the amortization schedule set
forth in Section 2.3(a) (or on such earlier date on which
the Loans become due and payable pursuant to Section 8) and
(v) the principal amount of each Tranche C Term Loan of
such Tranche C Term Loan Lender in installments according
to the amortization schedule set forth in Section 2.3(b)
(or on such earlier date on which the Loans become due and
payable pursuant to Section 8). The Borrower hereby further
agrees to pay interest on the unpaid principal amount of
the Loans from time to time outstanding from the date
hereof until payment in full thereof at the rates per
annum, and on the dates, set forth in Section 2.13."
8. Amendment to Section 2.7. Section 2.7 of the Credit
Agreement is hereby amended by inserting the new clauses "(d)" and "(e)" at the
end thereof as follows:
"(d) The Borrower agrees to pay to the Administrative Agent
for the account of each Overadvance Lender a commitment fee
for the period from and including the Amendment Effective
Date to the last day of the Overadvance Commitment Period,
computed at the Commitment Fee Rate on the average daily
amount of the Available Overadvance Commitment of such
Lender during the period for which payment is made, payable
quarterly in arrears on the last day of each March, June,
September and December and on the Overadvance Termination
Date, commencing on the first of such dates to occur after
the Amendment Effective Date.
(e) The Borrower agrees to pay to the Administrative Agent
for the account of each Customer Lender a commitment fee
for the period from and including the Amendment Effective
Date to the last day of the Customer Commitment Period,
computed at the Commitment Fee Rate on the average daily
amount of the Available Customer Commitment of such Lender
during the period for which payment is made, payable
quarterly in arrears on the last day of each March, June,
September and December and on the Customer Termination
Date, commencing on the first of such dates to occur after
the Amendment Effective Date.
(f) The Borrower agrees to pay to the Administrative Agent,
for the account of the Lenders the fees in the amounts and
on the dates previously agreed to in writing by the
Borrower and the Lenders."
9. Amendment to Section 2.8. Section 2.8 of the Credit
Agreement is hereby amended by deleting such Section in its entirety and
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substituting in lieu thereof the following:
"2.8 Termination or Reduction of Commitments. The Borrower
shall have the right, upon not less than three Business
Days' notice to the Administrative Agent, to terminate the
Revolving Credit Commitments, the Overadvance Commitments
and/or the Customer Commitments or, from time to time, to
reduce the amount of the Revolving Credit Commitments, the
Overadvance Commitments and/or the Customer Commitments;
provided that no such termination or reduction of (x)
Revolving Credit Commitments shall be permitted if, after
giving effect thereto and to any prepayments of the
Revolving Credit Loans made on the effective date thereof,
the Total Revolving Extensions of Credit would exceed the
Total Revolving Credit Commitments, (y) Overadvance
Commitments shall be permitted if, after giving effect
thereto and to any prepayments of the Overadvance Loans
made on the effective date thereof, the Total Overadvance
Extensions of Credit would exceed the Total Overadvance
Commitments or (z) Customer Commitments shall be permitted
if, after giving effect thereto and to any prepayments of
the Customer Loans made on the effective date thereof, the
Total Customer Extensions of Credit would exceed the Total
Customer Commitments. Any such reduction shall be in an
amount equal to $500,000, or a whole multiple of $100,000
in excess thereof, and shall reduce permanently the
Revolving Credit Commitments, Overadvance Commitments or
Customer Commitments, as the case may be, then in effect."
10. Amendment to Section 2.9. The last sentence of Section
2.9 of the Credit Agreement is hereby amended by (a) replacing the word "and"
where it appears in such sentence with ","and (b) inserting immediately after
the words "Revolving Credit Loans" where they appear in such Section the words
", Overadvance Loans and Customer Loans".
11. Amendment to Section 2.10(a). Section 2.10(a) of the
Credit Agreement is hereby amended by inserting immediately after the words
"Revolving Credit Commitments" where they appear in such Section the words ",
Overadvance Commitments and Customer Commitments".
12. Amendment to Section 2.10(b). Section 2.10(b) of the
Credit Agreement is hereby amended by inserting immediately after the words
"Revolving Credit Commitments" in each place where they appear in such Section
the words ", Overadvance Commitments and Customer Commitments".
13. Amendment to Section 2.10(c). Section 2.10(c) of the
Credit Agreement is hereby amended by inserting immediately after the words
"Revolving Credit Commitments" where they appear in such Section the words ",
Overadvance Commitments and Customer Commitments".
14. Amendment to Section 2.10(d). Section 2.10(d) of the
Credit Agreement is hereby amended by deleting such Section in its entirety and
substituting in lieu thereof the following:
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"(d) Amounts to be applied in connection with prepayments
and Commitment reductions made pursuant to Section 2.10
shall be applied, first, to the prepayment of the Tranche C
Term Loans and, second, to the prepayment of the Tranche B
Term Loans, and third, except in the case of Section
2.10(c), to reduce permanently on a pro rata basis the
Revolving Credit Commitments, Overadvance Commitments and
Customer Commitments. Any such reduction of the Revolving
Credit Commitments, Overadvance Commitments or Customer
Commitments shall be accompanied by prepayment of the
Revolving Credit Loans, Overadvance Loans or Customer
Loans, as the case may be, to the extent, if any, that the
Total Revolving Extensions of Credit, Total Overadvance
Extensions of Credit or Total Customer Extensions of
Credit, as applicable, exceed the amount of the Total
Revolving Credit Commitments, Total Overadvance Commitments
or Total Customer Commitments, respectively, as so reduced,
provided that if the aggregate principal amount of
Revolving Credit Loans then outstanding is less than the
amount of such excess (because L/C Obligations constitute a
portion thereof), the Borrower shall, to the extent of the
balance of such excess, replace outstanding Letters of
Credit and/or deposit an amount in cash in a cash
collateral account established with the Administrative
Agent for the benefit of the Lenders on terms and
conditions satisfactory to the Administrative Agent. The
application of any prepayment pursuant to Section 2.10
shall be made first to Base Rate Loans and second to
Eurodollar Loans. Each prepayment of the Loans under
Section 2.10 (except in the case of Revolving Credit Loans
and Overadvance Loans that are Base Rate Loans and Customer
Loans) shall be accompanied by accrued interest to the date
of such prepayment on the amount prepaid."
15. Amendment to Section 2.12. Section 2.12 of the Credit
Agreement is hereby amended by replacing the amount "$5,000,000" where it
appears in clause (a) thereof with "$1,000,000".
16. Amendment to Section 2.16(a). Section 2.16(a) of the
Credit Agreement is hereby amended by (a) replacing the word "or" where it
appears in such Section with "," and (b) inserting immediately after the words
"Revolving Credit Percentages" where they appear in such Section the words ",
Overadvance Percentages and Customer Percentages".
17. Amendment to Section 2.16(c). Section 2.16(c) of the
Credit Agreement is hereby amended by deleting such Section in its entirety and
substituting in lieu thereof the following:
"(c) Each payment (including each prepayment) by the
Borrower on account of principal of and interest on the
Revolving Credit Loans, Overadvance Loans and Customer
Loans shall be made pro rata according to the respective
outstanding principal amounts of the Revolving Credit
Loans, Overadvance Loans and Customer Loans, respectively,
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then held by the Revolving Credit Lenders, Overadvance
Lenders and Customer Lenders, as the case may be."
18. Amendment to Section 4.16. Section 4.16 of the Credit
Agreement is hereby amended by deleting such Section in its entirety and
substituting in lieu thereof the following:
"4.16 Use of Proceeds. The proceeds of the Loans and the
Letters of Credit shall be used for general corporate
purposes in the ordinary course of business; provided that
(a) Section 2.4(e) Revolving Credit Loans shall be used
only to purchase machinery and equipment and (b) Customer
Loans shall be used only to make payments to customers of
the Borrower to cover the float in respect of checks
deposited into one or more trust funds by debtors of such
customers in an amount not to exceed 85% of the amount of
such checks."
19. Amendment to Section 5. (a) Section 5.2(c) of the
Credit Agreement is hereby amended by deleting such Section in its entirety and
substituting in lieu thereof the following:
"(c) Credit Limitation After giving effect to such
extensions of credit, the sum of (i) (A) the Total
Revolving Extensions of Credit and (B) after December 31,
2001, the Total Overadvance Extensions of Credit shall not
exceed (ii) the Borrowing Base then in effect."
(b) Section 5 of the Credit Agreement is hereby further
amended by inserting the following new Section 5.3 at the end of such Section 5:
"5.3 Conditions to Each Customer Loan. The agreement of
each Customer Lender to make any Customer Loan requested to
be made by it on any date (including, without limitation,
its initial Customer Loan) is subject to the Borrower
delivering to the Administrative Agent a statement executed
by a Responsible Officer of the Borrower certifying that
(a) no Default or Event of Default has occurred and is
continuing on such date or after giving effect to the
Customer Loans requested to be made on such date and (b)
the Customer Loans requested to be made on such date shall
be used in compliance with the provisions Section 4.16."
20. Amendment to Section 6.2(d). Section 6.2(d) of the
Credit Agreement is hereby amended by inserting at the end of the text thereof
the following:
"and within 10 days after the end of each fiscal quarter of
the Borrower, an updated thirteen-week cash flow forecast
for the Borrower in a format reasonably satisfactory to the
Administrative Agent for the period commencing on the day
after the end of such fiscal quarter"
21. Amendment to Section 6.10(a). Section 6.10(a)(ii) of
the Credit Agreement is hereby amended by deleting such subsection in its
12
<PAGE>
entirety and substituting in lieu thereof the following:
"(ii) a monthly trial balance showing Accounts outstanding
aged from invoice date as follows: 1 to 30 days, 31 to 60
days, 61 to 90 days and 91 to 120 and 121days or more,
accompanied by such supporting detail and documentation as
shall be requested by the Collateral Monitoring Agent in
its reasonable discretion;"
22. Amendment to Section 6. Section 6 of the Credit
Agreement is further amended by adding a Section 6.11 thereto as follows:
"6.11 Lock Box System. Establish a full dominion and
control daily sweep (to pay down pro rata Revolving Credit
Loans, and, if applicable, Overadvance Loans and Customer
Loans) lock box system within 30 days after the Amendment
Effective Date on terms and conditions reasonably
satisfactory to the Collateral Monitoring Agent in respect
of the cash receipts of the Borrower and its Subsidiaries;
provided, however, that so long as the Borrower shall have
diligently and conscientiously sought to establish such a
system during the 30 day period after the Amendment
Effective Date, but such a system has not been established
by the end of such period, the Borrower shall have an
additional 30 days to establish such a system so long as it
continues to diligently and conscientiously pursue the
establishment of such a system."
23. Amendments to Section 7.1. (a) Section 7.1(a) of the
Credit Agreement is hereby amended by deleting the table contained therein in
its entirety and inserting in lieu thereof the following table:
Minimum
"Fiscal Quarter Consolidated EBITDA
--------------- -------------------
December 31, 2000 $16,175,000
March 31, 2001 $18,790,000
June 30, 2001 $19,840,000
September 30, 2001 $19,865,000
December 31, 2001 $20,150,000
March 31, 2002 $21,000,000
June 30, 2002 $22,000,000
September 30, 2002 $23,000,000
December 31, 2002 $24,000,000
March 31, 2003 $24,750,000
June 30, 2003 $25,500,000
September 30, 2003 $26,250,000
December 31, 2003 $27,000,000"
(b) Section 7.1(b) of the Credit Agreement is hereby
amended by deleting the table contained therein in its entirety and inserting in
lieu thereof the following table:
13
<PAGE>
Consolidated
"Fiscal Quarter Total Debt Ratio
--------------- ----------------
December 31, 2000 8.30 to 1.00
March 31, 2001 7.50 to 1.00
June 30, 2001 7.15 to 1.00
September 30, 2001 7.00 to 1.00
December 31, 2001 6.90 to 1.00
March 31, 2002 6.65 to 1.00
June 30, 2002 6.35 to 1.00
September 30, 2002 6.05 to 1.00
December 31, 2002 5.80 to 1.00
March 31, 2003 5.65 to 1.00
June 30, 2003 5.50 to 1.00
September 30, 2003 5.30 to 1.00
December 31, 2003 5.20 to 1.00"
(c) Section 7.1(c) of the Credit Agreement is hereby
amended by deleting the table contained therein in its entirety and inserting in
lieu thereof the following table:
Consolidated Interest
"Fiscal Quarter Coverage Ratio
--------------- --------------
December 31, 2000 1.17 to 1.00
March 31, 2001 1.30 to 1.00
June 30, 2001 1.35 to 1.00
September 30, 2001 1.35 to 1.00
December 31, 2001 1.35 to 1.00
March 31, 2002 1.40 to 1.00
June 30, 2002 1.50 to 1.00
September 30, 2002 1.55 to 1.00
December 31, 2002 1.60 to 1.00
March 31, 2003 1.65 to 1.00
June 30, 2003 1.70 to 1.00
September 30, 2003 1.75 to 1.00
December 31, 2003 1.80 to 1.00"
(d) Section 7.1 of the Credit Agreement is hereby amended
by adding the following subsection 7.1(d) thereto:
"(d) Consolidated Senior Secured Debt Ratio. Permit the
Consolidated Senior Secured Debt Ratio as at the last day of any period of four
consecutive fiscal quarters of the Borrower to exceed 2.50 to 1.00."
24. Amendment to Section 7.7. Section 7.7 of the Credit
Agreement is hereby amended by replacing the number "$10,000,000" where it
appears in such Section with the number "$11,0000,000".
25. Amendment to Section 8. Section 8 of the Credit
Agreement is hereby amended by deleting the following text therefrom:
14
<PAGE>
"either or both of the following actions may be taken: (i)
with the consent of the Majority Revolving Credit Facility
Lenders, the Administrative Agent may, or upon the request
of the Majority Revolving Credit Facility Lenders, the
Administrative Agent shall, by notice to the Borrower
declare the Revolving Credit Commitments to be terminated
forthwith, whereupon the Revolving Credit Commitments shall
immediately terminate;"
and substituting in lieu thereof the following:
"any or all of the following actions may be taken: (i) with
the consent of the Majority Revolving Credit Facility
Lenders, the Administrative Agent may, or upon the request
of the Majority Revolving Credit Facility Lenders, the
Administrative Agent shall, by notice to the Borrower
declare the Revolving Credit Commitments to be terminated
forthwith, whereupon the Revolving Credit Commitments shall
immediately terminate; (ii) with the consent of the
Majority Overadvance Facility Lenders, the Administrative
Agent may, or upon the request of the Majority Overadvance
Facility Lenders, the Administrative Agent shall, by notice
to the Borrower declare the Overadvance Commitments to be
terminated forthwith, whereupon the Overadvance Commitments
shall immediately terminate; (iii) with the consent of the
Majority Customer Facility Lenders, the Administrative
Agent may, or upon the request of the Majority Customer
Facility Lenders, the Administrative Agent shall, by notice
to the Borrower declare the Customer Commitments to be
terminated forthwith, whereupon the Customer Commitments
shall immediately terminate; and (iv)"
26. Amendment to Schedules 1.1A and 4.15. Schedules 1.1A
and 4.15 are hereby amended by deleting such Schedules in their entirety and
substituting in lieu thereof Annex A and Annex B, respectively, hereto.
27. Effective Date. This Waiver and Amendment shall become
effective as of the date hereof (the "Effective Date") upon satisfaction of the
following conditions precedent:
(a) The Administrative Agent shall have received this Waiver and
Amendment and the related fee letter executed and delivered by a duly
authorized officer of each of the Borrower, Holdings and the Lenders.
(b) Certain Equity Investors (or their affiliates) shall have
contributed cash (directly or indirectly) to the equity of the
Borrower and its Subsidiaries in an aggregate amount equal to at
least $5,000,000 in a manner and on terms and conditions satisfactory
to the Lenders.
(c) The Lenders, the Arranger, the Syndication Agent and the
Administrative Agent shall have received all fees required to be
paid, and all expenses for which invoices have been presented,
including, without limitation, the reasonable fees and expenses of
legal counsel, on or before the Effective Date.
15
<PAGE>
(d) All governmental and third party approvals necessary or, in the
discretion of the Administrative Agent, advisable in connection with
this Waiver and Amendment and the continuing operations of the
Borrower and its Subsidiaries shall have been obtained and be in full
force and effect.
(e) The Lenders shall have received a satisfactory updated
thirteen-week cash flow forecast.
(f) No Default or Event of Default shall have occurred and be
continuing on the Effective Date after giving effect to this Waiver
and Amendment and after giving effect to the extensions of credit
requested to be made on such date.
28. Continuing Effect; No Other Waivers. Except as
expressly set forth herein, all of the terms and provisions of the Credit
Agreement are and shall remain in full force and effect, and the Borrower shall
continue to be bound by all of such terms and provisions. The waivers and
amendments provided for herein are limited to the specific Sections of the
Credit Agreement specified herein and shall not constitute a waiver of, or an
indication of the Administrative Agent's or the Lenders' willingness to waive or
amend, any other provisions of the Credit Agreement or the same Sections for any
other date or purpose.
29. Expenses. The Borrower agrees to pay and reimburse the
Agents for all its reasonable costs and out-of-pocket expenses incurred in
connection with the preparation and delivery of this Waiver and Amendment,
including, without limitation, the reasonable fees and disbursements of counsel
to the Agents.
30. Counterparts. This Waiver and Amendment may be executed
in any number of counterparts by the parties hereto (including by facsimile
transmission), each of which counterparts when so executed shall be an original,
but all the counterparts shall together constitute one and the same instrument.
31. GOVERNING LAW. THIS WAIVER AND AMENDMENT SHALL BE
GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK.
16
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Waiver and Amendment to be duly executed and delivered by their properly and
duly authorized officers as of the day and year first above written.
NCI ACQUISITION CORPORATION
By:
---------------------------------------
Name:
Title:
NATIONWIDE CREDIT, INC.
By:
---------------------------------------
Name:
Title:
LEHMAN COMMERCIAL PAPER INC.,
As Syndication Agent and as Lender
By:
---------------------------------------
Name:
Title:
FLEET CAPITAL CORPORATION,
As Administrative Agent,
Collateral Monitoring Agent and
as a Lender
By:
---------------------------------------
Name:
Title:
BHF (USA) CAPITAL CORPORATION,
as Documentation Agent and
a Lender
By:
---------------------------------------
Name:
Title:
17
<PAGE>
BALANCED HIGH-YIELD FUND 1 LTD.,
By: BHF (USA) CAPITAL CORPORATION
acting as attorney-in-fact
By
----------------------------------------
Name:
Title:
18
<PAGE>
ANNEX A
SCHEDULE 1.1A
COMMITMENTS: LENDING OFFICES AND ADDRESSES
<TABLE>
<CAPTION>
Name of Lender Revolving Tranche B Tranche C
and Information Credit Overadvance Customer Term Loans Terms Loans
|for Notices Commitments Commitments Commitments Outstanding Outstanding
------------ ----------- ----------- ----------- ----------- -----------
<S> <C> <C> <C> <C> <C>
Lehman Commercial Paper Inc. $6,071,425.00 $971,428.00 $971,428.00 $9,685,000.00 $1,675,713.30
Fleet Capital Corporation $3,214,287.50 $514,286.00 $514,286.00 $4,470,000.00 $887,143.35
BHF (USA) Capital Corporation $3,214,287.50 $514,286.00 $514,286.00 $887,143.35
Balanced High-Yield Fund I Ltd. $4,470,000.00
</TABLE>
