Exhibit 10(qq)
SIXTH AMENDMENT
THIS SIXTH AMENDMENT (this "Amendment"), dated as of April 5, 2002, is by
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and among Access Worldwide Communications, Inc. (the "Borrower"), certain
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subsidiaries of the Borrower identified on the signature pages hereto (the
"Guarantors;" together with the Borrower, the "Credit Parties"), the lenders
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identified on the signature pages hereto (the "Lenders") and Bank of America,
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N.A., successor to NationsBank, N.A., as agent for the Lenders (in such
capacity, the "Agent").
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W I T N E S S E T H
WHEREAS, the Borrower, the Guarantors, the Lenders and the Agent have
entered into that certain Credit Agreement dated as of March 12, 1999, as
amended by that certain Amendment Agreement and Waiver dated as of April 14,
2000, that certain Second Amendment Agreement and Waiver dated as of June 9,
2000, that certain Third Amendment dated as of March 28, 2001, that certain
Fourth Amendment and Waiver Agreement dated as of April 3, 2001, and that
certain Fifth Amendment and Waiver Agreement dated as of February 22, 2002 (the
"Credit Agreement");
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WHEREAS, as of April 4, 2002, the outstanding principal balance of the
Revolving Loans was $ 6,382,633.76, and the outstanding principal balance of the
Swingline Loans was $ 616,691.54;
WHEREAS, pursuant to Subpart 2.9 of the Fifth Amendment and Waiver
Agreement dated as of February 22, 2002 (the "Fifth Amendment"), the Agent
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maintains $3,000,000 of the gross sale proceeds of the PMG Transaction (plus
accrued interest thereon) in the PMG Transaction Tax Account, subject to a first
priority security interest in favor of the Agent for the benefit of the Lenders;
WHEREAS, the Borrower has certified to the Agent that approximately
$1,500,000 of federal and state taxes are due from the Borrower as a direct
result of the PMG Transaction (the "PMG Transaction Taxes");
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WHEREAS, the Agent, in accordance with terms of Subpart 2.9 of the Fifth
Amendment, is therefore obligated to release $1,500,000 from the PMG Transaction
Tax Account to the Borrower to pay the PMG Transaction Taxes and to apply the
balance (the "Excess PMG Transaction Proceeds") to the outstanding Revolving
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Obligations; and
WHEREAS, the Credit Parties have requested that the Lenders delete
Section 5.2(d) of the Credit Agreement requiring that there exist no Material
Adverse Effect as a condition to the Extension of Credit, which the Lenders have
agreed to do, but only upon the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the agreements herein contained, the
parties hereby agree as follows:
PART I
DEFINITIONS
SUBPART 1.1. Definitions. Unless otherwise defined herein, or the
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context otherwise requires, terms used in this Amendment, including its preamble
and recitals, have the meanings provided in the Credit Agreement.
PART II
AMENDMENTS AND AGREEMENTS
SUBPART 2.1. Amendments to Section 1.1. The following new definitions
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(or replacement definitions, where appropriate) are hereby added to Section 1.1
of the Credit Agreement in the alphabetically appropriate places:
"Aggregate Revolving Committed Amount" means the aggregate amount
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of Revolving Commitments in effect from time to time, not to exceed the
following amounts for the following periods:
Amount Applicable Period
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$5,500,000 April 5, 2002 through May 31, 2002
$6,500,000 June 1, 2002 through March 31, 2003
$5,700,000 April 1, 2003 through June 30, 2003
SUBPART 2.2 Amendment to Section 2.3(a). Section 2.3(a) of the Credit
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Agreement is hereby amended and restated in its entirety to read as follows:
(a) Swingline Commitment. During the Commitment Period, subject to
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the terms and conditions hereof, the Swingline Lender, in its individual
capacity, agrees to make certain revolving credit loans requested by the
Borrower in Dollars to the Borrower (each a "Swingline Loan" and,
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collectively, the "Swingline Loans") for the purposes hereinafter set
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forth; provided, however, (i) the aggregate principal amount of Swingline
Loans outstanding at any time shall not exceed ONE MILLION DOLLARS
($1,000,000) (the "Swingline Committed Amount"), and (ii) with regard to
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the Revolving Lenders collectively, the aggregate principal amount of
Revolving Obligations outstanding at any time shall not exceed the lesser
of (A) the Aggregate Revolving Committed Amount or (B) the Borrowing
Base. Swingline Loans hereunder shall be made as Base Rate Loans, and may
be repaid or reborrowed in accordance with the provisions hereof.
SUBPART 2.3. Amendment to Section 5.2(d). Section 5.2(d) of the Credit
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Agreement is deleted in its entirety.
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PART III
CONDITIONS TO EFFECTIVENESS
As conditions precedent to the effectiveness of this Amendment, on or
before the date hereof:
SUBPART 3.1. Execution of Counterparts of Amendment. The Agent shall
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have received executed counterparts (or other evidence of execution, including
facsimile signatures, satisfactory to the Agent) of this Amendment, which
collectively shall have been duly executed on behalf of each of the Borrower,
the Guarantors, the Agent and the Lenders.
SUBPART 3.2. Fees and Expenses. The Borrower shall have reimbursed the
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Agent and the Lenders for all reasonable costs and expenses, including
reasonable attorneys' fees, incurred by them in connection with or related to
the negotiation, drafting or execution of (a) this Amendment, and (b) any and
all other and previous forbearance or amendment documentation.
SUBPART 3.3. Application of Proceeds. The Agent shall have applied the
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Excess PMG Transaction Proceeds to the outstanding Revolving Obligations.
SUBPART 3.4. Legal Opinion. The Agent shall have received opinions of
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counsel for the Credit Parties relating to the Amendment and related Credit
Documents, in form and substance satisfactory to the Agent.
PART IV
MISCELLANEOUS
SUBPART 4.1. Instrument Pursuant to Credit Agreement; Conflict. This
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Amendment is a Credit Document executed pursuant to the Credit Agreement and
shall (unless otherwise expressly indicated therein) be construed, administered
and applied in accordance with the terms and provisions of the Credit Agreement.
If there is any inconsistency or conflict between this Amendment and the Credit
Agreement, the provisions of this Amendment shall govern and control.
SUBPART 4.2. Representations and Warranties. Each Credit Party hereby
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represents and warrants that: (a) each Credit Party that is party to this
Amendment (i) has the requisite corporate power and authority to execute,
deliver and perform this Amendment, (ii) is duly authorized to, and has been
authorized by all necessary corporate action, to execute, deliver and perform
this Amendment, (b) the Credit Parties have no claims, counterclaims, offsets,
or defenses to the Credit Documents and the performance of their obligations
thereunder, (c) the representations and warranties contained in Section 6 of the
Credit Agreement are, subject to the limitations set forth therein, true and
correct in all material respects on and as of the date hereof as though made on
and as of such date (except for those which expressly relate to an earlier
date), (d) after giving effect to this Amendment, no Default or Event of Default
exists under the Credit Agreement on and as of the date hereof or will occur as
a result of the transactions contemplated hereby, (e) the audited financial
statements of Borrower for fiscal year ended 2001 will not reflect any material
negative
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variance from Borrower's internally prepared financial statements for fiscal
year ended 2001, (f) except as specifically set forth in Schedule 8.1 of the
Credit Agreement, as amended, no earn-out payments are due any entity by any
Credit Party and (g) this Amendment constitutes a legal, valid and binding
obligation of each Credit Party enforceable against each Credit Party in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and by general equitable principles
(whether enforcement is sought by proceedings in equity or at law).
SUBPART 4.3. Liens. The Borrower and the Guarantors, as applicable,
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affirm the liens and security interests created and granted in the Credit
Documents and agree that this Amendment shall in no manner adversely affect or
impair such liens and security interests, except as expressly indicated herein.
SUBPART 4.4. Acknowledgment of Guarantors. The Guarantors acknowledge
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and consent to all of the terms and conditions of this Amendment and agree that
this Amendment and all documents executed in connection herewith do not operate
to reduce or discharge the Guarantors' obligations under the Credit Agreement or
the other Credit Documents.
SUBPART 4.5. No Other Changes. Except as expressly modified in this
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Amendment, all the terms, provisions and conditions of the Credit Documents
shall remain unchanged and shall continue in full force and effect.
SUBPART 4.6. Counterparts. This Amendment may be executed by the parties
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hereto in several counterparts (including facsimile counterparts), each of which
shall be deemed to be an original and all of which shall constitute together but
one and the same agreement. Delivery of an executed counterpart of this
Amendment by telecopy shall be effective as an original and shall constitute a
representation that an original shall be delivered to the Agent.
SUBPART 4.7. Entirety. This Amendment, the Credit Agreement and the
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other Credit Documents embody the entire agreement between the parties and
supersede all prior agreements and understandings, if any, relating to the
subject matter hereof. The Credit Documents represent the final agreement among
the parties and may not be contradicted by evidence of prior, contemporaneous or
subsequent oral agreements of the parties.
SUBPART 4.8. Governing Law. THIS AMENDMENT AND THE RIGHTS AND
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OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NORTH CAROLINA.
SUBPART 4.9. Successors and Assigns. This Amendment shall be binding
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upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
SUBPART 4.10. Release. In consideration of the Lenders' willingness to
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enter into this Amendment, each of the Credit Parties hereby releases the Agent,
the Lenders, and the Agent's and the Lenders' respective officers, employees,
affiliates, representatives, agents,
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counsel, trustees and directors from any and all actions, causes of action,
claims, demands, damages and liabilities of whatever kind or nature, in law or
in equity, now known or unknown, suspected or unsuspected to the extent that any
of the foregoing arises from any action or failure to act on or prior to the
date hereof.
SUBPART 4.11. Further Assurances. The Credit Parties expressly agree to
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execute any documents that may reasonably be necessary to effectuate the terms
and conditions as contemplated herein.
[Remainder of this page left blank intentionally.]
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IN WITNESS WHEREOF the Borrower, the Guarantors and the Lenders have
caused this Amendment to be duly executed as of the date first above written.
BORROWER: ACCESS WORLDWIDE COMMUNICATIONS, INC.
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By:_________________________
Name:
Title:
GUARANTORS: ASH CREEK, INC.
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By:_________________________
Name:
Title:
TLM HOLDINGS, CORP.
By:_________________________
Name:
Title:
XXXXXXX POND, INC.
By:_________________________
Name:
Title:
AWWC NEW JERSEY HOLDINGS, INC.
By:_________________________
Name:
Title:
[Signatures continue.]
TELEMANAGEMENT SERVICES, INC.
By:_________________________
Name:
Title:
HISPANIC MARKET CONNECTIONS, INC.
By:_________________________
Name:
Title:
AWWC TEXAS I, L.P.
By:_________________________
Name:
Title:
[Signatures continue.]
AGENT: BANK OF AMERICA, N.A., in its capacity as Agent
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By:_________________________
Name:
Title:
LENDERS: BANK OF AMERICA STRATEGIC SOLUTIONS, INC.
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By:__________________________
Name:
Title:
ARK CLO 2000-1, LIMITED
By: Patriarch Partners, LLC
its Collateral Manager
By:_______________________
Name:_____________________
Title:____________________
FLEET NATIONAL BANK
By:_________________________
Name:
Title:
CITIBANK, N.A.
By:_________________________
Name:
Title:
