SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------------------------
SCHEDULE 13E-4
ISSUER TENDER OFFER STATEMENT
(PURSUANT TO SECTION 13(e)(1) OF
THE SECURITIES EXCHANGE ACT OF 1934)
AMENDMENT NO. 1
(FINAL AMENDMENT)
-----------------------------
PRIMARK CORPORATION
(NAME OF ISSUER)
PRIMARK CORPORATION
(NAME OF PERSON(S) FILING STATEMENT)
-----------------------------
COMMON STOCK, WITHOUT PAR VALUE
(TITLE OF CLASS OF SECURITIES)
741903108
(CUSIP NUMBER OF CLASS OF SECURITIES)
MICHAEL R. KARGULA, EXECUTIVE VICE PRESIDENT,
GENERAL COUNSEL AND SECRETARY
PRIMARK CORPORATION
1000 WINTER STREET
SUITE 4300N
WALTHAM, MA 02154-1248
(781) 487-2120
(NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON AUTHORIZED TO RECEIVE NOTICES
AND COMMUNICATIONS ON BEHALF OF THE PERSONS(S) FILING STATEMENT)
-----------------------------
COPY TO:
STEPHEN W. HAMILTON, ESQ.
SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
1440 NEW YORK AVENUE, N.W.
WASHINGTON, D.C. 20005-2111
(202) 371-7000
-----------------------------
MAY 20, 1998
(DATE TENDER OFFER FIRST PUBLISHED, SENT OR
GIVEN TO SECURITY HOLDERS)
-----------------------------
This Amendment Number 1 amends and supplements the Issuer Tender
Offer Statement on Schedule 13E-4 (the "Schedule 13-E4") filed by Primark
Corporation, a Michigan corporation (the "Company"), relating to the tender
offer by the Company to purchase up to 4,000,000 shares of its common
stock, without par value (the "Shares") (including the associated common
stock purchase rights (the "Rights") issued pursuant to the Rights
Agreement, dated as of May 29, 1997 between the Company and BankBoston,
N.A., as the Rights Agent) at a price, net to the seller in cash, not
greater than $41.50 nor less than $34.00 per Share, upon the terms and
subject to the conditions set forth in the Offer to Purchase, dated May 20,
1998 (the "Offer to Purchase") and the related Letter of Transmittal (which
are herein collectively referred to as the "Offer"). Copies of such
documents are filed as Exhibits (a)(1) and (a)(2), respectively, to the
Schedule 13E-4. This Amendment to the Schedule 13E-4 constitutes the final
amendment to the Schedule 13E-4 pursuant to Rule 13e-4(c)(3) under the
Securities Exchange Act of 1934, as amended, and General Instruction (D) to
Schedule 13E-4. Capitalized terms used but not defined herein shall have
the meaning assigned such term in the Offer to Purchase.
ITEM 8. ADDITIONAL INFORMATION
Item 8(e) is hereby supplemented and amended as follows:
The Offer expired at 12:00 Midnight, New York City time, on June 17,
1998. On June 18, 1998, the Company issued two press releases announcing
the preliminary results of the Offer, copies of which are attached hereto
as Exhibit (a)(13) and (a)(14), respectively, and are incorporated herein
by reference. On June 26, 1998, the Company issued a press release
announcing the final results of the Offer, a copy of which is attached
hereto as Exhibit (a)(15) and is incorporated herein by reference.
The number of Shares properly tendered and not withdrawn at the
price of $34.00 or at the price determined under the Dutch Auction was
11,154,943. Because the Dutch Auction was oversubscribed, pursuant to the
terms thereof, the Company increased the number of Shares purchased by
540,000, as permitted without requiring an extension of the Dutch Auction.
Accordingly, the Company purchased 4,540,000 Shares at a price of $34.00
per Share. Of the 11,154,943 Shares tendered at $34.00 or at the price
determined under the Dutch Auction, odd lots totaling 13,934 Shares, were
purchased in their entirety and the remaining 4,526,066 Shares were
purchased on an approximately 41% pro rata basis. The Shares purchased
pursuant to the Dutch Auction represented approximately 17% of the
27,147,699 Shares outstanding as of June 22, 1998.
ITEM 9. MATERIAL TO BE FILED AS EXHIBITS.
Item 9 is hereby amended and supplemented as follows:
(a)(13) Press Release issued by the Company dated June 18, 1998.
(a)(14) Press Release issued by the Company dated June 18, 1998.
(a)(15) Press Release issued by the Company dated June 26, 1998.
(b)(2) Amendment dated as of June 15, 1998 to the Credit Agreement,
dated as of February 7, 1997, among, the Company, Lenders parties thereto
from time to time, the Issuing Banks referred to therein and Mellon Bank,
N.A., as Agent, as amended.
SIGNATURE
After due inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete
and correct.
PRIMARK CORPORATION
By: /s/ Michael R. Kargula
------------------------------
Michael R. Kargula,
Executive Vice President,
General Counsel and Secretary
Dated: June 26, 1998
INDEX TO EXHIBITS
ITEM DESCRIPTION PAGE
------- ------------------- -------
(a)(13) Press Release issued by the Company dated June 18, 1998. . .
(a)(14) Press Release issued by the Company dated June 18, 1998. . .
(a)(15) Press Release issued by the Company dated June 26, 1998. . .
(b) (2) Amendment dated as of June 15, 1998 to the Credit
Agreement, dated as of February 7, 1997, among, the
Company, Lenders parties thereto from time to time,
the Issuing Banks referred to therein and Mellon
Bank, N.A., as agents as amended. . . . . . . . . . . . .
Exhibit (a)(13)
[Primark Corporation Letterhead]
News Release
Contact: Dana Kawiecki, Primark
781.487.2124
PRIMARK ANNOUNCES PRELIMINARY RESULTS OF ITS
"DUTCH AUCTION" SELF-TENDER OFFER
WALTHAM, MA, June 18, 1998 - - Primark Corporation (NYSE/PSE: PMK)
announced today the preliminary results of its Dutch auction self-tender
offer which expired Wednesday, June 17, at 12:00 midnight, New York City
time. The Company had announced its offer to purchase up to 4 million
shares of its common stock, or approximately 15% of its then outstanding
shares, at a price range of $34 to $41.50 on May 20, 1998. The Company
commenced the tender offer on Wednesday, May 20, 1998.
Based upon a preliminary count by the depository for the offer, the Company
expects to purchase 4 million shares at $34 per share on a pro rata basis
from the shares tendered at $34 and from the shares tendered at the price
to be determined under the "Dutch Auction" process provided for in the
self-tender. The Company also expects to purchase an additional 540,000
shares, or approximately 2% of the outstanding shares, which is the maximum
additional amount that may be purchased without amending or extending the
self-tender. Therefore, the total number of shares expected to be purchased
by the Company is 4,540,000 shares. Shares tendered in excess of the $34
price and shares not purchased because of proration will be promptly
returned.
The determination of the actual number of shares to be purchased, the final
proration factor and the purchase price are subject to final confirmation
and the proper delivery of all shares tendered and not withdrawn, including
shares tendered pursuant to the guaranteed delivery procedure. Payment for
shares accepted for payment and return of all shares tendered but not
accepted for payment will occur as soon as practicable after determination
of the final proration factor and number of shares properly tendered.
The Company plans to implement an open market purchase program ten business
days following the expiration of the self-tender, which is the earliest
such a program can be initiated under the federal securities laws. Under
this open market program, the Company plans to buy up to 2 million shares
of its common stock from time to time, depending on market conditions.
Primark Corporation (WWW.PRIMARK.COM), headquartered in Waltham,
Massachusetts, is a $400 million global information services company that
collects, integrates and delivers financial, economic and market research
information. Primark, with customers in 61 countries and 80 offices in 21
countries, serves financial, corporate and government decision- makers
worldwide.
# # #
Exhibit (a)(14)
[Primark Corporation Letterhead]
News Release
Contact: Dana Kawiecki, Primark
781.487.2131
PRIMARK ANNOUNCES ADDITIONAL INFORMATION ON DUTCH AUCTION
WALTHAM, MA, June 18, 1998 - - Primark Corporation (NYSE/PSE: PMK)
announces an update to its announcement made earlier today with additional
information regarding the preliminary results of the Company's Dutch
Auction self-tender, which expired Wednesday, June 17, 1998 at 12 o'clock
midnight New York City time. The information provided in this announcement
was not available at the time of the Company's earlier announcement.
The preliminary count by the depository for the Dutch Auction self-tender
now indicates that approximately 10.7 million shares were tendered and not
withdrawn (including approximately 2.3 million tendered through the
guaranteed delivery procedure) at $34 per share or at the price to be
determined under the Dutch Auction process provided for in the self-tender.
Due to the over subscription, the shares tendered at $34 per share or the
Dutch Auction price will be prorated, except for shares tendered as odd
lots which will be purchased in full. As a result, Primark expects to
purchase approximately 42% of these shares. As stated earlier, the Company
expects to purchase 4,540,000 shares at $34 per share. Given the
significant number of shares tendered that will not be purchased by the
Company, the NYSE has advised the Company that it will establish a "when
distributed" market. The depository will return all shares not purchased by
the Company as soon as practicable.
After the purchase of shares through the Dutch Auction self-tender, the
Company will have approximately 22.6 million shares of its common stock
outstanding.
Primark Corporation (WWW.PRIMARK.COM), headquartered in Waltham,
Massachusetts, is a $400 million global information services company that
collects, integrates and delivers financial, economic and market research
information. Primark, with customers in 61 countries and 80 offices in 21
countries, serves financial, corporate and government decision- makers
worldwide.
# # #
Exhibit (a)(15)
[Primark Corporation Letterhead]
News Release
Contact: Dana Kawiecki, Primark
781.487.2124
PRIMARK ANNOUNCES FINAL RESULTS OF DUTCH AUCTION TENDER OFFER
WALTHAM, MA, June 26, 1998 - - Primark Corporation (NYSE/PSE: PMK)
announced today the final results of its Dutch Auction self-tender offer.
Under the terms of the Dutch Auction, which commenced on May 20, 1998, the
Company offered to purchase for cash up to 4,000,000 shares of its issued
and outstanding comon stock at a price not greater than $41.50 nor less
than $34.00 per share. The Dutch Auction offer expired at midnight on June
17, 1998, New York City time. The number of Shares properly tendered and
not withdrawn at the price of $34.00 or at the price determined under the
Dutch Auction was 11,154,943. Because the Dutch Auction was
oversubscribed, pursuant to the terms thereof, the Company increased the
number of Shares purchased by 540,000 as permitted without requiring an
extension of the Dutch Auction. Accordingly, the Company purchased
4,540,000 Shares at a price of $34.00 per Share.
Of the 11,154,943 Shares tendered at $34.00 or at the price determined
under the Dutch Auction, odd lots totaling 13,934 Shares were purchased in
their entirety and the remaining 4,526,066 Shares were purchased on an
approximately 41% pro rata basis. The Shares purchased pursuant to the
Dutch Auction represented approximately 17% of the 27,147,699 Shares
outstanding as of June 22, 1998. The Company expects that the depository
will begin issuing payment on June 26, 1998 and will complete the payment
process as soon as possible. Unpurchased shares will be returned promptly.
Following the purchase of the shares through the Dutch Auction, the Company
now has approximately 22.6 million shares of its common stock outstanding.
As stated in its June 18, 1998 announcement, the Company intends to
initiate an open market repurchase program for up to 2 million shares
starting July 2, 1998. The Company plans to repurchase shares from time to
time through open market and privately negotiated transactions at prices
deemed appropriate by management.
Primark Corporation (WWW.PRIMARK.COM), headquartered in Waltham,
Massachusetts, is a $400 million global information services company that
collects, integrates and delivers financial, economic and market research
information. Primark, with customers in 61 countries and 80 offices in 21
countries, serves financial, corporate and government decision-makers
worldwide.
# # #
Exhibit (b)(2)
AMENDMENT TO TRANSACTION DOCUMENTS
THIS AMENDMENT (referred to herein as this "Amendment"), dated
as of June 15, 1998, by and among PRIMARK CORPORATION, a Michigan
corporation (the "Borrower"), the Lenders party to the Revolving Credit
Agreement referred to below, the Lenders party to the Note Backup Agreement
referred to below (such agreements being referred to collectively as the
"Credit Facilities"), and MELLON BANK, N.A., a national banking
association, as Agent under each such Credit Facility.
RECITALS:
A. The Borrower has entered into (a) a Revolving Credit
Agreement (as amended, the "Revolving Credit Agreement") dated as of
February 7, 1997 among Primark Corporation (the "Borrower"), the Lenders
parties thereto from time to time, the Issuing Banks referred to therein,
and Mellon Bank, N.A., as Agent, and (b) a Note Backup Agreement (as
amended, the "Note Backup Agreement") dated as of February 7, 1997 among
the Borrower, the Lenders parties thereto from time to time, the Issuing
Bank referred to therein, and Mellon Bank, N.A., as Agent (collectively,
the "Credit Facilities"). The Credit Facilities have been amended by a
letter agreement dated February 21, 1997, an Amendment to Transactions
Documents dated as of May 1, 1997, an Amendment to Transaction Documents
dated as of June 30, 1997, an Amendment to Transaction Documents dated as
of December 1, 1997, an Agreement dated as of March 6, 1998 (which restated
and superseded all such prior amendments) and an Amendment to Transaction
Documents dated as of May 8, 1998.
B. The parties hereto desire to amend further the Credit
Facilities as set forth herein. Capitalized terms used herein and not
otherwise defined shall have the meanings given them in, or by reference
in, the Collateral Agency Agreement.
NOW THEREFORE, the parties hereto, intending to be legally
bound, hereby agree as follows:
SECTION I. CERTAIN AMENDMENTS TO THE FINANCIAL TERMS OF THE REVOLVING CREDIT
AGREEMENT.
(a) REVOLVING CREDIT COMMITMENT FEE. Section 2.01(e) of the Revolving
Credit Agreement is amended by deleting the table and replacing it with the
following:
If the Applicable Margin for Then the Revolving Credit
such day is to be Commitment Fee Percentage
determined in accordance with for such day is
----------------------------- --------------------------
Level I Performance Margins 0.35%
Level II Performance Margins 0.30%
Level III Performance Margins 0.30%
Level IV Performance Margins 0.25%
Level V Performance Margins 0.25%
Level VI Performance Margins 0.20%
Level VII Performance Margins 0.20%
(b) PERFORMANCE MARGINS. Section 2.03(b) of the Revolving Credit Agreement
is deleted and replaced with the following:
(b) APPLICABLE MARGINS. The "Applicable Margin" for
each interest rate Option for each day shall mean the applicable
percentage set forth below under "Level II Performance Margins,"
"Level III Performance Margins," "Level IV Performance Margins,"
"Level V Performance Margins", "Level VI Performance Margins,"
or "Level VII Performance Margins", as the case may be, in the
event that (x) no Event of Default or Potential Default shall
have occurred and be continuing or exist on such day and (y)
Financial Test II, Financial Test III, Financial Test IV,
Financial Test V, Financial Test VI or Financial Test VII,
respectively, set forth below is satisfied on such day. For
purposes of determining the Applicable Margin, Financial Test
II, Financial Test III, Financial Test IV, Financial Test V,
Financial Test VI or Financial Test VII, as the case may be,
shall be deemed to be satisfied effective on the first day of
the calendar month following the calendar month in which the
Agent shall have received from the Borrower a certificate, duly
completed and signed by a Responsible Officer, accompanied by
the Borrower's financial statements for the fiscal quarter most
recently ended (or, if such most recently ended fiscal quarter
is the last of a fiscal year, for the fiscal year then ended),
demonstrating compliance with the applicable financial test, and
such financial test shall be deemed to remain satisfied until
the last day of the calendar month in which the Borrower's next
annual or quarterly financial statements are required to be
delivered under Section 6.01(a) or 6.01(b) hereof, as the case
may be (or, if earlier, the last day of the calendar month in
which the Borrower's next annual or quarterly financial
statements are actually delivered in compliance with such
Section). If the conditions for application of the Level II
Performance Margins, Level III Performance Margins, Level IV
Performance Margins, Level V Performance Margins, Level VI
Performance Margins or Level VII Performance Margins do not
apply on a particular day, the "Applicable Margin" for such day
shall mean the applicable percentage set forth below under
"Level I Performance Margins":
LEVEL I PERFORMANCE MARGINS:
Interest Rate Option Applicable Margin
-------------------- -----------------
Base Rate Option 0.25%
Euro-Rate Option 1.50%
Level I Performance Margins shall apply in the event that the
conditions for application of the Level II Performance Margins, Level
III Performance Margins, Level IV Performance Margins, Level V
Performance Margins, Level VI Performance Margins or Level VII
Performance Margins do
not apply.
LEVEL II PERFORMANCE MARGINS:
Interest Rate Option Applicable Margin
-------------------- -----------------
Base Rate Option Zero
Euro-Rate Option 1.25%
Level II Performance Margins shall apply in the event that Financial
Test II is satisfied and the other conditions set forth above are
met. "Financial Test II" means that, as of the end of the relevant
fiscal quarter, the Consolidated Funded Debt Ratio (Adjusted) for the
period of four consecutive fiscal quarters ending on the last day of
such fiscal quarter, considered as a single accounting period, is
less than 5.50 and greater than or equal to 5.00.
LEVEL III PERFORMANCE MARGINS:
Interest Rate Option Applicable Margin
-------------------- -----------------
Base Rate Option Zero
Euro-Rate Option 1.00%
Level III Performance Margins shall apply in the event that Financial
Test III is satisfied and the other conditions set forth above are
met. "Financial Test III" means that, as of the end of the relevant
fiscal quarter, the Consolidated Funded Debt Ratio (Adjusted) for the
period of four consecutive fiscal quarters ending on the last day of
such fiscal quarter, considered as a single accounting period, is
less than 5.00 and greater than or equal to 4.00.
LEVEL IV PERFORMANCE MARGINS:
Interest Rate Option Applicable Margin
-------------------- -----------------
Base Rate Option Zero
Euro-Rate Option .75%
Level IV Performance Margins shall apply in the event that Financial
Test IV is satisfied and the other conditions set forth above are
met. "Financial Test IV" means that, as of the end of the relevant
fiscal quarter, the Consolidated Funded Debt Ratio (Adjusted) for the
period of four consecutive fiscal quarters ending on the last day of
such fiscal quarter, considered as a single accounting period, is
less than 4.00 and greater than or equal than 3.00.
LEVEL V PERFORMANCE MARGINS:
Interest Rate Option Applicable Margin
-------------------- -----------------
Base Rate Option Zero
Euro-Rate Option 0.625%
Level V Performance Margins shall apply in the event that Financial
Test V is satisfied and the other conditions set forth above are met.
"Financial Test V" means that, as of the end of the relevant fiscal
quarter, the Consolidated Funded Debt Ratio (Adjusted) for the period
of four consecutive fiscal quarters ending on the last day of such
fiscal quarter, considered as a single accounting period, is less
than 3.00 and greater than or equal to 2.50.
LEVEL VI PERFORMANCE MARGINS:
Interest Rate Option Applicable Margin
-------------------- -----------------
Base Rate Option Zero
Euro-Rate Option 0.50%
Level VI Performance Margins shall apply in the event that Financial
Test VI is satisfied and the other conditions set forth above are
met. "Financial Test VI" means that, as of the end of the relevant
fiscal quarter, the Consolidated Funded Debt Ratio (Adjusted) for the
period of four consecutive fiscal quarters ending on the last day of
such fiscal quarter, considered as a single accounting period, is
less than 2.50 and greater than or equal to 2.00.
LEVEL VII PERFORMANCE MARGINS:
Interest Rate Option Applicable Margin
-------------------- -----------------
Base Rate Option Zero
Euro-Rate Option 0.375%
Level VII Performance Margins shall apply in the event that Financial
Test VII is satisfied and the other conditions set forth above are
met. "Financial Test VII" means that, as of the end of the relevant
fiscal quarter, the Consolidated Funded Debt Ratio (Adjusted) for the
period of four consecutive fiscal quarters ending on the last day of
such fiscal quarter, considered as a single accounting period, is
less than 2.00.
(c) CONDITIONS TO SUBSEQUENT LOANS. Section 5.02(b) of the Revolving
Credit Agreement is amended by deleting the reference to "Sections
4.06, 4.07, 4.08 and 4.10" and substituting a reference to "Sections
4.06, 4.07 and 4.08", by deleting the word "and" before clause (ii)
thereof and by adding the following new clause (iii) before the
period.
(iii) the representations and warranties in Section 4.10 need
be true only on and as of June 15, 1998
SECTION 2. CERTAIN AMENDMENTS TO THE FINANCIAL TERMS OF THE NOTE BACKUP
AGREEMENT.
(a) PERFORMANCE MARGINS. (a) Section 3.09(b) of the Note Backup Agreement is
deleted and replaced with the
following:
(b) APPLICABLE MARGINS. The "Applicable Margin" for each
interest rate Option for each day shall mean the applicable
percentage set forth below under "Level II Performance Margins,"
"Level III Performance Margins," "Level IV Performance Margins,"
"Level V Performance Margins," "Level VI Performance Margins" or
"Level VII Performance Margins", as the case may be, in the event
that (x) no Event of Default or Potential Default shall have occurred
and be continuing or exist on such day and (y) Financial Test II,
Financial Test III, Financial Test IV, Financial Test V, Financial
Test VI or Financial Test VII, respectively, set forth below is
satisfied on such day. For purposes of determining the Applicable
Margin, Financial Test II, Financial Test III, Financial Test IV,
Financial Test V, Financial Test VI or Financial Test VII, as the
case may be, shall be deemed to be satisfied effective on the first
day of the calendar month following the calendar month in which the
Agent shall have received from the Borrower a certificate, duly
completed and signed by a Responsible Officer, accompanied by the
Borrower's financial statements for the fiscal quarter most recently
ended (or, if such most recently ended fiscal quarter is the last of
a fiscal year, for the fiscal year then ended), demonstrating
compliance with the applicable financial test, and such financial
test shall be deemed to remain satisfied until the last day of the
calendar month in which the Borrower's next annual or quarterly
financial statements are required to be delivered under Section
6.01(a) or 6.01(b) hereof, as the case may be (or, if earlier, the
last day of the calendar month in which the Borrower's next annual or
quarterly financial statements are actually delivered in compliance
with such Section). If the conditions for application of the Level II
Performance Margins, Level III Performance Margins, Level IV
Performance Margins, Level V Performance Margins, Level VI
Performance Margins or Level VII Performance Margins do not apply on
a particular day, the "Applicable Margin" for such day shall mean the
applicable percentage set forth below under "Level I Performance
Margins":
LEVEL I PERFORMANCE MARGINS:
Interest Rate Option Applicable Margin
-------------------- -----------------
Base Rate Option 0.25%
Euro-Rate Option 1.50%
Level I Performance Margins shall apply in the event that the
conditions for application of the Level II Performance Margins, Level
III Performance Margins, Level IV Performance Margins, Level V
Performance Margins, Level VI Performance Margins or Level VII
Performance Margins do
not apply.
LEVEL II PERFORMANCE MARGINS:
Interest Rate Option Applicable Margin
-------------------- -----------------
Base Rate Option Zero
Euro-Rate Option 1.25%
Level II Performance Margins shall apply in the event that Financial
Test II is satisfied and the other conditions set forth above are
met. "Financial Test II" means that, as of the end of the relevant
fiscal quarter, the Consolidated Funded Debt Ratio (Adjusted) for the
period of four consecutive fiscal quarters ending on the last day of
such fiscal quarter, considered as a single accounting period, is
less than 5.50 and greater than or equal to 5.00.
LEVEL III PERFORMANCE MARGINS:
Interest Rate Option Applicable Margin
-------------------- -----------------
Base Rate Option Zero
Euro-Rate Option 1.00%
----------------
Level III Performance Margins shall apply in the event that Financial
Test III is satisfied and the other conditions set forth above are
met. "Financial Test III" means that, as of the end of the relevant
fiscal quarter, the Consolidated Funded Debt Ratio (Adjusted) for the
period of four consecutive fiscal quarters ending on the last day of
such fiscal quarter, considered as a single accounting period, is
less than 5.00 and greater than or equal to 4.00.
LEVEL IV PERFORMANCE MARGINS:
Interest Rate Option Applicable Margin
-------------------- -----------------
Base Rate Option Zero
Euro-Rate Option 0.75%
Level IV Performance Margins shall apply in the event that Financial
Test IV is satisfied and the other conditions set forth above are
met. "Financial Test V" means that, as of the end of the relevant
fiscal quarter, the Consolidated Funded Debt Ratio (Adjusted) for the
period of four consecutive fiscal quarters ending on the last day of
such fiscal quarter, considered as a single accounting period, is
less than 4.00 and greater than or equal to 3.00.
LEVEL V PERFORMANCE MARGINS:
Interest Rate Option Applicable Margin
-------------------- -----------------
Base Rate Option Zero
Euro-Rate Option 0.625%
Level V Performance Margins-shall apply in the event that Financial
Test IV is satisfied and the other conditions set forth above are
met. "Financial Test V" means that, as of the end of the relevant
fiscal quarter, the Consolidated Funded Debt Ratio (Adjusted) for the
period of four consecutive fiscal quarters ending on the last day of
such fiscal quarter, considered as a single accounting period, is
less than 3.00 and greater than or equal to 2.50.
LEVEL VI PERFORMANCE MARGINS:
Interest Rate Option Applicable Margin
-------------------- -----------------
Base Rate Option Zero
Euro-Rate Option 0.50%
Level VI Performance Margins shall apply in the event that Financial
Test IV is satisfied and the other conditions set forth above are
met. "Financial Test VI" means that, as of the end of the relevant
fiscal quarter, the Consolidated Funded Debt Ratio (Adjusted) for the
period of four consecutive fiscal quarters ending on the last day of
such fiscal quarter, considered as a single accounting period, is
less than 2.50 and greater than or equal to 2.00.
LEVEL VII PERFORMANCE MARGINS:
Interest Rate Option Applicable Margin
-------------------- -----------------
Base Rate Option Zero
Euro-Rate Option 0.375%
Level VII Performance Margins shall apply in the event that Financial
Test VII is satisfied and the other conditions set forth above are
met. "Financial Test VII" means that, as of the end of the relevant
fiscal quarter, the Consolidated Funded Debt Ratio (Adjusted) for the
period of four consecutive fiscal quarters ending on the last day of
such fiscal quarter, considered as a single accounting period, is
less than 2.00.
SECTION 3. CERTAIN OTHER AMENDMENTS TO THE CREDIT FACILITIES.
(a) PROJECTIONS. Section 4.10 of the Revolving Credit Agreement and the
Note Backup Agreement each are amended by deleting the phrase "dated
February 5, 1997, for the years 1997 through 2001" and replacing it with
the phrase "June 2, 1998, for the years 1998 through 2002".
(b) MARGIN REGULATIONS. Section 4.12 of the Revolving Credit Agreement and
the Note Backup Agreement each is amended by deleting the phrase "for the
purpose of buying or carrying any "margin stock as such term is used in
Regulations G and U of the Board of Governors of the Federal Reserve
System, as amended from time to time" and replacing it with the phrase:
"for the purpose of buying or carrying any "margin stock" as such
term is used in Regulation U of the Board of Governors of the Federal
Reserve System, as amended from time to time (other than repurchases
of shares of the Borrower's common stock that comply with Section
7.06 hereof)."
(c) FINANCIAL COVENANTS. Section 7.01 of the Revolving Credit Agreement and
the Note Backup Agreement each is
deleted and replaced by the following:
7.01 FINANCIAL COVENANTS.
For convenience of comparison between this Agreement and the other
Credit Facilities, the tables in Section 7.01 may refer to periods
after the final scheduled maturity date of the credit facility under
this Agreement, but such reference shall not be construed to extend
such final scheduled
maturity date.
(a) CONSOLIDATED NET WORTH (ADJUSTED). As of the end of each
fiscal quarter of the Borrower ending on or after December 31, 1996,
Consolidated Net Worth (Adjusted) shall not be less than the
applicable amount specified below:
Consolidated Net
Worth (Adjusted)
From and including To and including shall not be less than
------------------ ---------------- ----------------------
December 31, 1996 June 29, 1998 $425,000,000
June 30, 1998 December 30, 1998 $450,000,000
December 31, 1998 December 30, 1999 $475,000,000
December 31, 1999 December 30, 2000 $500,000,000
December 31, 2000 December 30, 2001 $525,000,000
December 31, 2001 December 30, 2002 $550,000,000
Thereafter $575,000,000
(b) CONSOLIDATED FIXED CHARGE COVERAGE RATIO. As of the end of
each fiscal quarter of the Borrower ending on or after December 31,
1996, the Consolidated Fixed Charge Coverage Ratio for (i) the fiscal
quarter ending on June 30, 1998, in the case of the quarter ending on
such date, (ii) the period of two consecutive fiscal quarters ending
on September 30, 1998, in the case of the quarter ending on such
date, (iii) the period of three consecutive fiscal quarters ending on
December 31, 1998, in the case of the quarter ending on such date and
(iv) the period of four consecutive fiscal quarters ending on the
last day of each subsequent fiscal quarter, in each case considered
as a single accounting period, shall not be less than the applicable
amount set forth below.
Consolidated Fixed Charge
Coverage Ratio for the
Fiscal quarter ending on relevant number of fiscal
a date in the following quarters ending on such date
period (inclusive) shall not be less than
------------------------ ----------------------------
June 30, 1998 1.00
July 1, 1998 through
December 31, 1998 1.25
January 1, 1999 through
December 31, 1999 1.50
Thereafter 2.00
(c) CONSOLIDATED FUNDED SENIOR DEBT RATIO (ADJUSTED). As of the
end of any fiscal quarter of the Borrower ending on or after June 30,
1998, the Consolidated Funded Senior Debt Ratio (Adjusted) for the
period of four consecutive fiscal quarters ending on the last day of
such fiscal quarter, considered as a single accounting period, shall
not be greater than the applicable amount set forth below:
Consolidated Funded Senior Debt
Fiscal quarter ending on a Ratio (Adjusted) for the four
date in the following period fiscal quarters ending on such
(inclusive) date shall not be greater than
---------------------------- -------------------------------
December 31, 1997 through
September 29, 1998 5.00
September 30, 1998 through
December 30, 1998 4.50
December 31, 1998 through
March 30, 2000 4.25
Thereafter 4.00
(d) LIENS. Section 7.02 of the Revolving Credit Agreement and the Note
Backup Agreement each is amended by replacing the period at the end of
paragraph (j) with a semi-colon, by deleting the remainder of such section
and by replacing it with the following:
provided, however notwithstanding the foregoing:
(i) "Permitted Lien" in respect of the Borrower or any
Subsidiary of the Borrower shall in no event include (x) any
Lien imposed by, or required to be granted pursuant to, ERISA,
the Code or any Environmental Law, (y) except as provided in
Section 7.02(a) hereof, any Lien on the Shared Collateral
Account or any other account (custodial, deposit or other)
maintained by or with the Collateral Agent pursuant to the
Shared Security Documents, or any other investment property or
deposit account (as such terms are defined in the Uniform
Commercial Code), or (z) except as provided in Section 7.02(a)
hereof, any Lien on Shares of Capital Stock of, or obligations
owed by, a Subsidiary of the Borrower; and
(ii) the limitations of this Section 7.02 shall not apply
to such number of shares of common stock of the Borrower that
have been repurchased by the Borrower is necessary in order for
the Loans not to be deemed to be "indirectly secured by margin
stock" under Regulation U of the Board of Governors of the
Federal Reserve System, as amended.
(e) INDEBTEDNESS. Section 7.03 of the Revolving Credit Agreement and the
Note Backup Agreement each is amended by deleting paragraph (d) and
replacing it with the following:
(d) Subordinated Debt in aggregate principal amount not to
exceed $150,000,000;
(f) DIVIDENDS AND RELATED DISTRIBUTIONS. Section 7.06(a)(i) of each of the
Revolving Credit Agreement and the Note Backup Agreement each is amended by
deleting the amount "$150,000,000" and replacing it with the amount
"$250,000,000".
Section 7.06(a)(iii) of the Revolving Credit Agreement and the Note Backup
Agreement each is amended by deleting the first proviso thereto and by
deleting the introductory clause and replacing it with the following:
(iii) The Borrower would have been in compliance with Section
7.01(a) and 7.01(c) on the last day of the fiscal quarter
ending most recently before such repurchase, after giving
effect on a pro forma basis to such repurchase, to any
incurrence or acquisition of Indebtedness after such day and to
any repayment of Indebtedness with the proceeds of Subordinated
Debt after such day, as if such repurchase, incurrence or
acquisition and repayment had occurred on such day;
(g) DISPOSITIONS OF PROPERTIES. Section 7.09 of the Revolving Credit
Agreement and the Note Backup Agreement each is amended by adding the
following sentence at the end thereof.
It is further understood that shares of the Borrower's common
stock which have been repurchased by the Borrower are not
property subject to this Section 7.09.
(h) LIMITATIONS ON MODIFICATION OF CERTAIN AGREEMENTS AND INSTRUMENTS.
Section 7.11 of the Revolving Credit Agreement and the Note Backup
Agreement each is amended by deleting paragraph
(a) and replacing it with:
(a) SUBORDINATED DEBT. The Borrower shall not amend, modify or
supplement the terms or provisions contained in, or applicable to,
any Subordinated Debt or Subordinated Debt Document.
(i) LIMITATION ON PAYMENTS ON CERTAIN OBLIGATIONS. Section 7.12 of the
Revolving Credit Agreement and the Note Backup Agreement each is amended by
deleting it and replacing it with the following:
7.12. LIMITATION ON PAYMENTS ON CERTAIN OBLIGATIONS. The
Borrower shall not, and shall not permit any Subsidiary to, directly
or indirectly, pay, prepay, purchase, redeem, retire, defease or
acquire, or otherwise make any payment (on account of principal,
interest, premium or otherwise) of, any obligation under or evidenced
by the Subordinated Debt Documents, except that subject to the
subordination provisions of the Subordinated Debt Documents, the
Borrower may pay interest on the Subordinated Debt as and when
expressly required to do so by the mandatory terms of the
Subordinated Debt Documents.
(j) EVENTS OF DEFAULT. Section 8.01(f)(A) of the Revolving Credit Agreement
and the Note Backup Agreement each is amended by deleting the phrase "the
Senior Notes or the Senior Note Indenture" and replacing it with "or any
Subordinated Debt Document".
Section 8.01(l) of the Revolving Credit Agreement and the Note Backup
Agreement each is deleted and replaced by the following:
(l) The Borrower or any of its Subsidiaries shall make or offer
to make any payment on account of principal of, or any purchase,
redemption, retirement, defeasance or acquisition of, any
Subordinated Debt or any subordination provision thereof shall be
declared void or voidable.
(k) DEFINITIONS. Annex A, Section 1.01 of the Revolving Credit Agreement
and the Note Backup Agreement each is amended by deleting the definitions
of "Consolidated EBITDA" and "Consolidated Net Worth (Adjusted)" and by
adding the following definitions in proper alphabetical order:
"Consolidated EBITDA" for any period shall mean the sum of (a)
Consolidated Net Income for such period, (b) Consolidated Interest
Expense for such period, (c) Consolidated Income Tax Expense for such
period, (d) depreciation expense of the Borrower and its Subsidiaries
for such period, (e) amortization expense of the Borrower and its
Subsidiaries for such period, and (f) without duplication, writeoffs
of intangible assets up to $150,000,000 in the aggregate, including,
without limitation, goodwill impairment charges, expensing of
capitalized software and capitalized databases and writeoffs of
unamortized debt issuance costs, minus the sum of (x) extraordinary
gains (but not any losses) to the extent included in determining such
Consolidated Net Income, and (y) equity earnings (but not any losses)
of Affiliates of the Borrower to the extent included in determining
Consolidated Net Income for such period, all as determined on a
consolidated basis in accordance with GAAP.
"Consolidated Net Worth (Adjusted)" at any time shall mean the
sum of (a) Consolidated Net Worth at such time plus (b) the lesser of
(i) $150,000,000 or (ii) the sum of aggregate writeoffs of goodwill
or other intangible assets on or after January 1, 1998 (excluding
writeoffs of unamortized debt issuance costs) in accordance with
GAAP, plus (c) the amount by which the aggregate purchase price paid
by the Borrower for shares of its common stock repurchased after the
Extension Date exceeds $150,000,000.
"Consolidated Funded Senior Debt Ratio (Adjusted)" for any
period shall mean the Consolidated Funded Debt Ratio (Adjusted) for
such period, except that for purposes of calculating "Consolidated
Funded Senior Debt Ratio (Adjusted)", the amount of Subordinated Debt
at the end of such period shall be deducted from Consolidated Funded
Indebtedness in clause (i) of the definition of Consolidated Funded
Debt Ratio (Adjusted).
"Subordinated Debt" shall mean shall mean Indebtedness of the
Borrower which is subordinated to the Loan Obligations and whose
terms, including repayment terms, interest rates, covenants and
subordination provisions, are satisfactory to the Agent and the
Required Lenders.
"Subordinated Debt Documents" shall mean all agreements and
instruments pursuant to which Subordinated Debt is created or
incurred or by which it is evidenced, in the form or containing the
terms approved by the Required Lenders in connection with any
approval by the Agent and the Required Lenders of any Subordinated
Debt.
Annex A, Section 1.01 of the Revolving Agreement and the Note Backup
agreement is amended by deleting the phrase "and Senior Notes" from the
definition of Consolidated Funded Indebtedness" and replacing it with "and
Subordinated Debt".
(l) SCHEDULE 4.16. Schedule 4.16 of the Revolving Credit Agreement and the
Note Backup Agreement each is amended by the addition of the items set
forth on Exhibit A hereto.
SECTION 4. EFFECTIVENESS AND EFFECT, ETC.
(a) EFFECTIVENESS. This Amendment shall become effective on the date, not
later than June 17, 1998 (the "Effective Date") when Mellon Bank, N.A., as
Agent under each of the Revolving Credit Agreement and the Note Backup
Agreement and as Collateral Agent, shall have received counterparts hereof
duly executed by the Borrower, by each of the "Required Lenders" and the
"Agent" under each of the Revolving Credit Agreement and the Note Backup
Agreement and when the following conditions precedent shall have been
satisfied:
(i) OFFICER'S CERTIFICATE. The Agent shall have received a
certificate in substantially the form attached hereto as Annex A,
duly executed by a Responsible Officer of the Borrower, dated the
Effective Date.
(ii) OPINION OF GENERAL COUNSEL OF THE BORROWER. The Agent
shall have received an opinion of the General Counsel of the Borrower
in substantially the form attached hereto as Annex B.
(iii) NO DEFAULTS. No Event of Default or Potential Default
shall have occurred and be continuing or exist on the Effective Date
or will occur or exist after giving effect to this Amendment.
(iv) CORPORATE PROCEEDINGS. The Agent shall have received
certificates by the Secretary or Assistant Secretary of the Borrower
dated as of the Effective Date as to (i) true copies of the articles
of incorporation and by-laws (or other constituent documents) of the
Borrower in effect on such date, (ii) true copies of all corporate
action taken by the Borrower relative to this Agreement and the other
Loan Documents, as amended hereby and (iii) the incumbency and
signature of the respective officers of the Borrower executing this
Amendment, together with satisfactory evidence of the incumbency of
such Secretary or Assistant Secretary, or in lieu of any or all of
the foregoing, a statement that there has been no change in such item
since March 6, 1998.
(v) AMENDMENT FEE. The Borrower shall have paid to the Agent,
for the Pro Rata account of each Lender under the Revolving Credit
Agreement, an amendment fee in the amount of $225,000.
(vi) ADDITIONAL MATTERS. All corporate and other proceedings,
and all documents, instruments and other matters in connection with
the transactions contemplated by this Amendment shall be satisfactory
in form and substance to the Agent. The Agent shall have received such
other documents, instruments and other items as the Agent may reasonably
request.
In the event that the Effective Date occurs, the Agent shall promptly
notify each of the Lenders of such fact.
(b) EFFECT. The Revolving Credit Agreement, the Note Backup Agreement, the
Collateral Agency Agreement and the Borrower Pledge Agreement, in the forms
initially executed and as previously amended and as amended hereby, are and
shall continue to be in full force and effect, and are hereby in all
respects ratified and confirmed. Except to the extent expressly set forth
herein, the execution, delivery and effectiveness of this Amendment shall
not operate as a waiver of any right, power or remedy under any of the
foregoing agreements and instruments or constitute a waiver of any
provision of any of the foregoing agreements and instruments.
SECTION 5. MISCELLANEOUS. This Amendment may be executed in any number of
counterparts and by the different parties hereto in separate counterparts,
each of which when so executed and delivered shall be deemed to be an
original and all of which taken together shall constitute but one and the
same document. Section and other headings herein are for reference purposes
only and shall not affect the interpretation of this Amendment in any
respect. This Amendment shall be governed by and construed in accordance
with the laws of the Commonwealth of Pennsylvania, without regard to choice
of law rules. This Amendment is a requested amendment within the meaning of
Section 10.06(a) of each Credit Facility.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed by their respective officers thereunto duly authorized, as of
the date first above written.
PRIMARK CORPORATION
By/s/ Stephen H. Curron
----------------------
Name: Stephen H. Curron
Title: GUP/CFO
MELLON BANK, N.A.,
individually and as Agent under each
Credit Facility
By/s/ R. Jane Westrich
----------------------
R. Jane Westrich
Vice President
CONSENTED AND AGREED:
BANKBOSTON, N.A.
By/s/ Jorge A. Schwarz
---------------------
Title: Director
NATIONSBANK, N.A.
By/s/ Marty V. Mitchell
----------------------
Title: Vice President
THE CHASE MANHATTAN BANK
By/s/ A. Neil Sweeny
----------------------
Title: Vice President
FIRST AMEMCAN NATIONAL BANK
By/s/ Alexis Griffin
----------------------
Title: Bank Officer
WACHOVIA BANK, N.A.
By/s/ John P. Rafferty
----------------------
Title: Senior Vice President
FLEET NATIONAL BANK
By/s/ David M. Harnisch, AVP
---------------------------
Title: Assistant Vice President
THE HUNTINGTON NATIONAL BANK
By/s/ Robert H. Friend
-----------------------
Title: Vice President
ANNEX A
PRIMARK CORPORATION
OFFICER'S CERTIFICATE
The undersigned, an officer of Primark Corporation, a Michigan
corporation (the "Borrower"), hereby certifies on behalf of the Borrower as
follows:
I. This certificate is delivered to Mellon Bank, N.A., as
Agent, pursuant to Section 4 of the Amendment to Transaction Documents
dated as of June 15, 1998 (the "Amendment") by and among the Borrower, the
Lenders from time to time parties thereto, the Issuing Banks referred to
therein, and Mellon Bank, N.A., as Agent. Capitalized terms used herein and
not otherwise defined have the meanings as ascribed to them in the
Amendment.
2. The Borrower desires the Effective Date to occur on the date
of this certificate.
3. On the date hereof, all of the conditions set forth in
Section 4(a) of the Amendment have been satisfied. Without limiting the
generality of the foregoing, no Event of Default or Potential Default has
occurred and is continuing or exists on the date hereof or will occur or
exist after giving effect to the Amendment.
4. The Borrower would have been in compliance with Section
7.01(a) and 7.01(c) of the Credit Facilities on March 31, 1998, after
giving effect on a pro forma basis to the TASC Disposition (in the manner
described in the fourth proviso of Section 7.08 of the Credit Facilities,
as amended by the Amendment), as if all such event had occurred on March 31,
1998. Calculations demonstrating such pro forma compliance are attached to
this Certificate.
Executed this _______ day of June, 1998.
PRIMARK CORPORATION
By:_______________________________
Title:____________________________
ANNEX B
FORM OF OPINION OF COUNSEL TO THE BORROWER
[Effective Date]
To the Lenders, Issuing Banks and Agent
party to the Revolving Credit Agreement referred to below,
The Lenders, Issuing Bank and Agent
party to the Note Backup Agreement referred to below, and
Mellon Bank, N.A., as Collateral Agent
Ladies and Gentlemen:
I am the Executive Vice President, General Counsel and
Secretary of Primark Corporation, a Michigan corporation, (the "Borrower")
and have represented the Borrower in connection with: (a) the Revolving
Credit Agreement (the "Revolving Credit Agreement"), dated as of February
7, 1997, by and among the Borrower, the Lenders parties thereto from time
to time, the Issuing Banks referred to therein and Mellon Bank, N.A., as
Agent, (b) the Note Backup Agreement (the "Note Backup Agreement") dated as
of February 7, 1997, by and among the Borrower, the Lenders parties thereto
from time to time, the Issuing Bank referred to therein and Mellon Bank,
N.A., as Agent, (c) the Collateral Agency Agreement (the "Collateral Agency
Agreement"), dated as of February 7, 1997, among the Borrower, certain
Revolving Credit Parties, certain Note Backup Parties, certain other former
lenders to the Borrower and Mellon Bank, N.A., as Collateral Agent, (d) the
Pledge Agreement (the "Borrower Pledge Agreement"), dated as of February 7,
1997, made by the Borrower in favor of Mellon Bank, N.A., as Collateral
Agent, and (e) the Agreement dated as of March 6, 1998, by and among the
Borrower, the Lenders party to the Revolving Credit Agreement, the Lenders
party to the Note Backup Agreement, certain other former lenders to the
Borrower and Mellon Bank, N.A., as Agent under such Revolving Credit
Agreement, as Agent under such Term Loan Agreement, as Agent under such
Note Backup Agreement, and as Collateral Agent under the Collateral Agency
Agreement, the Amendment to Transaction Documents dated as of May 8, 1998,
and Amendment to Transaction Documents dated as of June 15, 1998 (the "June
Amendment") by and among the Borrower, the Lenders party to the Revolving
Credit Agreement, the Lenders party to the Note Backup Agreement and Mellon
Bank, N.A., as Agent under such Revolving Credit Agreement and as Agent
under such Note Backup Agreement (collectively, the "Amendments").
Capitalized terms used herein and not otherwise defined shall have the same
meanings as in the Collateral Agency Agreement, as amended by the
Cumulative Amendment.
This opinion is being delivered pursuant to Section 4(a)(ii) of
the June Amendment.
In connection with this opinion, I have examined originals or
copies, certified or otherwise identified to my satisfaction, of the
following:
(i) the Revolving Credit Agreement, in the form initially
executed;
(ii) the Note Backup Agreement, in the form initially executed;
(iii) the Collateral Agency Agreement, in the form initially
executed;
(iv) the Borrower Pledge Agreement, in the form initially
executed;
(v) The Amendments;
(vi) the Revolving Credit Notes dated [ ] and issued to the
Lenders under the Revolving Credit Agreement pursuant to Section 5.03
of the Revolving Credit Agreement (the "Replacement Revolving Credit
Notes");
(vii) all material agreements and instruments to which the
Borrower or any Subsidiary of the Borrower is a party or by which any
of their respective properties may be subject or bound; and
(viii) such other documents and matters as I have deemed
necessary or appropriate to render the opinions set forth herein.
The Revolving Credit Agreement, the Note Backup Agreement, the
Collateral Agency Agreement, and the Borrower Pledge Agreement, each as
amended by the Amendments, and the Replacement Revolving Credit Notes and
the Amendments, are collectively referred to herein as the "Specified
Documents".
In my examination I have assumed the genuineness of all
signatures (other than those on behalf of the Borrower), the legal capacity
of natural persons, the authenticity of all documents submitted to me as
originals, the conformity to original documents of all documents submitted
to me as certified or photostatic copies and the authenticity of the
originals of such copies. As to any facts material to the opinions
expressed below which I did not independently establish or verify, I have
relied upon the statements and representations of officers and other
representatives of the Borrower and of public officials.
I am admitted to the Bar of the State of Michigan, and I do not
express any opinion as to the laws of any jurisdiction other than the State
of Michigan and the federal laws of the United States of America.
The opinions set forth below are subject to the following
qualifications:
(a) enforcement of the Specified Documents may be limited
by applicable bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium or other similar laws affecting
creditors' rights generally and by general principles of equity
(regardless of whether enforcement is sought in equity or at
law);
(b) certain of the remedial provisions including waivers,
with respect to the exercise of remedies against the collateral
contained in the Borrower Pledge Agreement, as amended, may be
unenforceable in whole or in part, but the inclusion of such
provisions does not affect the validity of the Shared Security
Documents, taken as a whole, and the Shared Security Documents,
taken as a whole, together with applicable law, contains
adequate provisions for the practical realization of the
benefits of the security created thereby;
(c) I express no opnion as to the effect on the opinions
expressed herein of (i) the compliance or non-compliance of the
Collateral Agent, the Agent, any of the Lenders or any of the
other Secured Parties with any state, federal or other laws or
regulations applicable to them or (ii) the legal or regulatory
status or the nature of the business of the Collateral Agent,
the Agent, any of the Lenders or any of the other Secured
Parties;
(d) I express no opnion as to the enforceability of any
rights to contribution or indemnification provided for in the
Specified Documents which are violative of the public policy
underlying any law, rule or regulation (including any federal
or state securities law, rule or regulation);
(e) I express no opnion as to the enforceability of (i)
any provision of any Specified Document to the extent it
authorizes or permits any party to any Specified Document or
any purchaser of a participation interest from any such party
to set-off or apply any deposit, property or indebtedness with
respect to any participation interest or (ii) any provision of
any Specified Document to the extent it purports to waive any
objection a Person may have that a suit, action or proceeding
has been brought in an inconvenient forum;
(f) enforcement of the Shared Security Documents against
the rights of the Borrower in instruments, leases or contracts
may be subject to the terms of such instruments, leases or
contracts or other arrangements between the Borrower and the
other parties to such agreements, the rights of such other
parties and any claims or defenses of such other parties
against the Borrower arising under or outside such instruments,
leases or contracts or other agreements; and
(g) I have assumed that the Specified Documents are the
legal, valid and binding obligations of each party thereto
other than the Borrower, enforceable against each such party
thereto in accordance with its terms.
Based upon and subject to the foregoing, I am of the opinion
that:
1. The Borrower is a corporation duly organized, validly
existing and in good standing under the laws of the State of Michigan. The
Borrower has corporate power and authority to own its property and to
transact the business in which it is engaged or presently proposes to
engage. The Borrower is duly qualified to do business as a foreign
corporation and is in good standing in the Commonwealths of Massachusetts
and Virginia.
2. The Borrower has corporate power and authority to execute,
deliver, perform, and take all actions contemplated by, the Specified
Documents, and all such action has been duly and validly authorized by all
necessary corporate proceedings on its part. Without limitation of the
foregoing, the Borrower has the corporate power and authority to borrow and
request Letters of Credit (as defined in the Specified Documents) to be
issued pursuant to the Specified Documents to the fullest extent permitted
thereby from time to time, and has taken all necessary corporate action to
authorize such borrowings and requests for issuance of Letters of Credit.
3. Each of the Specified Documents has been duly and validly
executed and delivered by the Borrower.
4. No Federal or Michigan Governmental Action is or will be
necessary in connection with execution and delivery of the Specified
Documents, performance of or compliance with the terms of the Specified
Documents, or to ensure the legality, validity, binding effect,
enforceability or admissibility in evidence of the Specified Documents,
except for the matters set forth in Section 4.04 of each of the Revolving
Credit Agreement, and the Note Backup Agreement, as the same have been
respectively amended by the Amendments.
5. Neither the execution and delivery of the Specified
Documents, nor performance of or compliance with the terms and conditions
of the Specified Documents by the Borrower, does or will
(a) violate or conflict with any Federal or Michigan Law, or
(b) violate or conflict with, or constitute a default
under, or result in (or give rise to any right, contingent or
other, of any Person to cause) any termination, cancellation,
prepayment or acceleration of performance of' or result in the
creation or imposition of (or give rise to any obligation,
contingent or other, to create or impose) any Lien upon any
property of the Borrower or any Subsidiary of the Borrower
(except for any Lien in favor of the Collateral Agent securing
the Obligations) pursuant to, (i) the articles of incorporation
or by-laws (or other constitutional documents) of the Borrower
or any Subsidiary of the Borrower, or (ii) any judicial or
administrative order, judgment, injunction or decree, any
material agreement or instrument, or to my knowledge after due
inquiry any other agreement or instrument, to which the
Borrower or any Subsidiary of the Borrower is a party or by
which any of their respective properties may be subject or
bound.
6. Except as set forth on Exhibit A to the best of my
knowledge, there is no pending or threatened action, suit, proceeding or
investigation by or before any Governmental Authority against or affecting
the Borrower or any Subsidiary of the Borrower, except for matters that if
adversely decided, individually or in the aggregate, do not, and would not
be likely to, have a Material Adverse Effect (as defined in the Specified
Documents).
7. In the event that a Michigan court were to apply the
substantive laws of the State of Michigan, notwithstanding the choice of
law of the parties set forth in the Specified Documents and the limited
nature of contacts within the State of Michigan, each of the Specified
Documents constitutes a valid and binding obligation of the Borrower,
enforceable against the Borrower in accordance with its terms. I call to
your attention that the Specified Documents are governed by the laws of the
Commonwealth of Pennsylvania, and I express no opinion as to whether a
Michigan court would apply the substantive laws of the State of Michigan to
such documents.
8. The Borrower is not an "investment company" under the
Investment Company Act of 1940, as amended.
9. The Borrower is not a "holding company", or a "public
utility company" within the meaning of the Public Utility Holding Company
Act of 1935, as amended.
This opinion is being furnished to you and is solely for your
benefit in connection with the Specified Documents and the transactions
contemplated by the foregoing, except that it may be relied upon by any
person which becomes a Participant or Secured Party as if it were addressed
to such person and delivered on the date hereof.
Very truly yours,
Exhibit A to Amendment to Transaction Documents and to Annex B
1. A Douglas DC-8 aircraft owned and operated by ABX Air, Inc. was
destroyed in an aircraft accident on December 22, 1996 while on a
post-maintenance test flight which originated from TIMCO's facilities
in Greensboro, North Carolina. A TIMCO employee was one of six
fatalities aboard the aircraft. A wrongful death action has been
filed on behalf of one of the ABX Air, Inc. employees aboard the
aircraft at the time of the accident. The case, styled Patricia
Waelti, Executrix of the Estate of Terry Waelti, Deceased vs.
McDonnell Douglas Corp. and Triad International Maintenance Corp.,
was filed on May 18, 1998 in the United States District Court for the
Southern District of Ohio, Western Division-Cincinnati. TIMCO intends
to vigorously defend itself in this action.
2. On or about May 26, 1998, Martin S. Schwartz filed a complaint in
the United States District Court, Southern District of Florida, West
Palm Beach Division in a case styled Martin S. Schwartz vs. Primark
Corporation and Joseph Kasputys. The lawsuit alleges that Primark failed
to disclose certain information and otherwise disseminated and/or
approved of the dissemination of false information concerning its
review of strategic alternatives in violation of Section 10(b) of the
Securities and Exchange Act of 1934 and Rule 10b-5 thereunder. The
plaintiff is seeking from the defendants approximately $1 million in
damages together with prejudgment interest, costs and attorneys'
fees. Primark believes this lawsuit to be without merit and intends
vigorously to defend the defendants in this action.
# # #
