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EXHIBIT 10.2
EXECUTION
AMENDMENT NO. 6 & LIMITED WAIVER
TO THE CREDIT AGREEMENT
This AMENDMENT NO. 6 & LIMITED WAIVER TO THE CREDIT AGREEMENT
(this "AMENDMENT") is dated as of October 13, 2000 and entered into by and among
Telespectrum Worldwide, Inc., a Delaware corporation (the "BORROWER"), the
financial institutions listed on the signature pages hereof (the "LENDERS"), BNP
Paribas, as collateral agent (the "AGENT"), and Bank of America, N.A., as
administrative agent for the Lenders (the "ADMINISTRATIVE AGENT").
RECITALS
WHEREAS, the Borrower, the Lenders, the Agent and the
Administrative Agent have entered into a Credit Agreement dated as of June 30,
1999 (as heretofore amended, supplemented or otherwise modified, the "CREDIT
AGREEMENT"). Capitalized terms not otherwise defined in this Amendment have the
same meanings as specified in the Credit Agreement, and
WHEREAS, the Borrower has requested that (i) the Lenders
extend the time within which the Borrower must comply with certain repayment
obligations pursuant to the Credit Agreement, and (ii) Required Lenders waive
compliance with certain covenants set forth in the Credit Agreement for the
applicable fiscal periods ending on September 30, 2000;
NOW, THEREFORE, in consideration of the premises and the
agreements, provisions and covenants herein contained, the parties hereto agree
as follows:
SECTION 1. Amendments to Credit Agreement. Section 2.04(a) of
the Credit Agreement is, effective as of the date hereof and subject to the
agreements, terms and conditions set forth in this Amendment, including, without
limitation, the satisfaction of the conditions precedent set forth in Section 6,
hereby amended by deleting the reference to "October 13, 2000" contained in the
table therein and substituting therefor "October 27, 2000".
SECTION 2. Conditions to Amendments. Notwithstanding anything
to the contrary contained in the Credit Agreement, as amended by this Amendment
(the "AMENDED AGREEMENT"), or any other Loan Document, and in consideration of
the amendments set forth in Section 1 above,
(a) the Borrower shall not request any Borrowings nor
shall any of the Lenders make any Advances during the period commencing
on the Sixth Amendment Effective Date and continuing through October
27, 2000; and
(b) during the period commencing on the Sixth Amendment
Effective Date and continuing through October 27, 2000, neither the
Borrower nor any of its Subsidiaries shall prepay any Debt (other than
Advances and Obligations of any Loan Party under the Loan Documents),
or pay, repay or prepay any Obligations of the Borrower or any of its
Subsidiaries in connection with the MDC Subordinated Debt or under the
MDC Subordinated Notes, any earn-outs or other similar payments, or any
management fees or expenses attributable to the Borrower or any of its
Subsidiaries.
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SECTION 3. Waivers. Subject to the agreements, terms and
conditions set forth herein, including, without limitation, the satisfaction of
the conditions precedent set forth in Section 6, and in reliance on the
representations and warranties of the Borrower herein contained, the undersigned
Required Lenders hereby waive on a limited basis Borrower's compliance with (i)
Section 2.07(a) of the Credit Agreement solely with respect to the payment of
interest on Advances due and payable on October 13, 2000, (ii) Section
5.02(b)(ii)(F) of the Credit Agreement, (iii) the maximum Leverage Ratio set
forth in Section 5.04(a)(ii) of the Credit Agreement solely for the for the
fiscal quarter ending in September 2000, (iv) the minimum Fixed Charge Coverage
Ratio set forth in Section 5.04(b) of the Credit Agreement solely for the
Rolling Period ending on September 30, 2000, and (v) the minimum Interest
Coverage Ratio set forth in Section 5.04(c) of the Credit Agreement solely for
the Rolling Period ending in the fiscal month period ending in September 2000;
provided, however, that the waivers set forth in this Section 3 shall cease to
be of any force or effect from and after October 27, 2000; provided further that
the payment of interest on Advances due and payable on October 13, 2000 pursuant
to Section 2.07(a) of the Credit Agreement shall be due and payable on October
27, 2000.
SECTION 4. Limitation of Waivers. Without limiting the
generality of the provisions of Section 8.01 of the Credit Agreement, the
waivers set forth in Section 3 above shall be limited precisely as written and
relate solely to the noncompliance by the Borrower with the provisions of
Sections 2.07(a), 5.02(b)(ii)(F), 5.04(a)(ii), 5.04(b) and 5.04(c) of the Credit
Agreement in the manner and to the extent described above, and nothing in this
Amendment shall be deemed to:
(a) constitute a waiver of compliance by the Borrower
with respect to (i) Sections 2.07(a), 5.02(b)(ii)(F), 5.04(a)(ii),
5.04(b) and 5.04(c) of the Credit Agreement in any other instance or
(ii) any other term, provision or condition of the Credit Agreement or
any other instrument or agreement referred to therein (whether in
connection with Sections 2.07(a), 5.02(b)(ii)(F), 5.04(a)(ii), 5.04(b)
and 5.04(c) of the Credit Agreement or otherwise); or
(b) prejudice any right or remedy that the Agent,
Administrative Agent or any Lender may now have (except to the extent
such right or remedy was based upon existing defaults that will not
exist after giving effect to this Amendment) or may have in the future
under or in connection with the Credit Agreement or any other
instrument or agreement referred to therein; or
(c) constitute a waiver of the rights of the Agent and
the Lenders pursuant to Section 2.07(b) of the Credit Agreement during
the period commencing on the Sixth Amendment Effective Date and
continuing through October 27, 2000 to require the Borrower to pay
interest on the unpaid principal amount of each Advance at the rate
specified therein as if a Default has occurred and is continuing.
Except as expressly set forth herein, the terms, provisions
and conditions of the Credit Agreement and the other Loan Documents shall remain
in full force and effect and in all other respects are hereby ratified and
confirmed.
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SECTION 5. Acknowledgment. The Borrower hereby acknowledges
and agrees to pay interest on the unpaid principal amount of each Advance at the
rate specified in Section 2.07(b) of the Credit Agreement for the period
commencing October 1, 2000 continuing through October 27, 2000.
SECTION 6. Conditions of Effectiveness. This Amendment shall
become effective as of the date first above written (the "SIXTH AMENDMENT
EFFECTIVE DATE") when, and only when the Agent shall have received on or before
the Sixth Amendment Effective Date, in form and substance satisfactory to the
Agent and in sufficient copies for each Lender Party (i) counterparts of this
Amendment executed by the Borrower and each Lender or, as to any of the Lenders,
advice satisfactory to the Agent that such Lender has executed this Amendment,
and (ii) the consent attached hereto executed by each Guarantor (the "CONSENT").
This Amendment is subject to the provisions of Section 8.01 of
the Credit Agreement.
SECTION 7. Representations and Warranties of the Borrower. As
of the Sixth Amendment Effective Date, the Borrower represents and warrants as
follows:
(a) The Borrower is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction
indicated in the recital of parties to this Amendment.
(b) The execution, delivery and performance by the
Borrower of this Amendment and the Loan Documents, as amended hereby,
to which it is or is to be a party, and the consummation of the
transactions contemplated hereby, are within the Borrower's corporate
powers, have been duly authorized by all necessary corporate action and
do not (i) contravene the Borrower's charter or by-laws, (ii) violate
any law, rule or regulation (including, without limitation, Regulation
X of the Board of Governors of the Federal Reserve System), or any
order, writ, judgment, injunction, decree, determination or award,
(iii) conflict with or result in the breach of, or constitute a default
under, any contract, loan agreement, indenture, mortgage, deed of
trust, lease or other instrument binding on or affecting any Loan
Party, any of its Subsidiaries or any of their properties or (iv)
except for the Liens created under Loan Documents, result in or require
the creation or imposition of any Lien upon or with respect to any of
the properties of any Loan Party or any of its Subsidiaries.
(c) No authorization or approval or other action by, and
no notice to or filing with, any governmental authority or regulatory
body or any other third party is required for the due execution,
delivery or performance by the Borrower of this Amendment or any of the
Loan Documents, as amended hereby, to which it is or is to be a party.
(d) This Amendment has been duly executed and delivered
by the Borrower. This Amendment and each of the other Loan Documents,
as amended hereby, to which the Borrower is a party are legal, valid
and binding obligations of the Borrower, enforceable against the
Borrower in accordance with their respective terms.
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(e) There is no action, suit, investigation, litigation
or proceeding affecting any Loan Party or any of its Subsidiaries,
including any Environmental Action, pending or threatened before any
court, governmental agency or arbitrator that (i) could be reasonably
likely to have a Material Adverse Effect (other than as set forth on
Schedule 4.01 to the Credit Agreement) or (ii) purports to affect the
legality, validity or enforceability of this Amendment or any of the
other Loan Documents, as amended hereby, or the consummation of any of
the transactions contemplated hereby.
(f) Other than with respect to payment of interest on the
unpaid principal amount of each Advance and compliance with financial
covenants for the period ending September 30, 2000 which are subject to
the waivers contained in Section 3 of this Amendment, the
representations and warranties contained in each Loan Document are true
and correct on and as of the Sixth Amendment Effective Date, other than
any such representations or warranties that, by their terms, refer to a
specific date other than the Sixth Amendment Effective Date, in which
case as of such specific date.
(g) Other than with respect to payment of interest on the
unpaid principal amount of each Advance and compliance with financial
covenants for the period ending September 30, 2000 which are subject to
the waivers contained in Section 3 of this Amendment, no Defaults exist
under the Credit Agreement.
SECTION 8. Reference to and Effect on the Credit Agreement and
the Loan Documents. (a) On and after the Sixth Amendment Effective Date, each
reference in the Credit Agreement to "this Agreement", "hereunder", "hereof" or
words of like import referring to the Credit Agreement, and each reference in
the Notes and each of the other Loan Documents to "the Credit Agreement",
"thereunder", "thereof" or words of like import referring to the Credit
Agreement, shall mean and be a reference to the Amended Agreement.
(b) The Credit Agreement, the Notes and each of the other
Loan Documents, as specifically amended by this Amendment, are and
shall continue to be in full force and effect and are hereby in all
respects ratified and confirmed. Without limiting the generality of the
foregoing, the Collateral Documents and all of the Collateral described
therein do and shall continue to secure the payment of all Obligations
of the Loan Parties under the Loan Documents, in each case as amended
by this Amendment.
(c) The execution, delivery and effectiveness of this
Amendment shall not, except as expressly provided herein, operate as a
waiver of any right, power or remedy of any Lender or the Agent under
any of the Loan Documents, nor constitute a waiver of any provision of
any of the Loan Documents.
SECTION 9. Costs and Expenses. The Borrower agrees to pay on
demand all costs and expenses of the Agent in connection with the preparation,
execution, delivery and administration, modification and amendment of this
Amendment and the other instruments and documents to be delivered hereunder
(including, without limitation, the reasonable fees and expenses of counsel for
the Agent) in accordance with the terms of Section 8.04 of the Credit Agreement.
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SECTION 10. Execution in Counterparts. This Amendment may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute but one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Amendment by telecopier shall be effective as delivery of a manually executed
counterpart of this Amendment.
SECTION 11. Governing Law. This Amendment shall be governed
by, and construed in accordance with, the laws of the State of New York.
[Remainder of page intentionally left blank.]
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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.
TELESPECTRUM WORLDWIDE, INC.
By ________________________________
Title:
X-0
0
XXX XXXXXXX,
as Agent and as Lender
By ________________________________
Title:
By ________________________________
Title:
BANK OF AMERICA, N.A.,
as Administrative Agent and as Lender
By ________________________________
Title:
FLEET NATIONAL BANK (f/k/a
BankBoston, N.A.).
By ________________________________
Title:
IBJ WHITEHALL BANK & TRUST COMPANY
By ________________________________
Title:
XXX XXXXXX PRIME RATE
INCOME TRUST
By ________________________________
Title:
XXX XXXXXX SENIOR FLOATING RATE FUND
By ________________________________
Title:
X-0
0
XXX XXXXXX XXXXXX INCOME TRUST
By ________________________________
Title:
XXXXX FARGO BANK, N.A.
By ________________________________
Title:
FIRST SOURCE FINANCIAL, LLP
By First Source Financial, Inc.,
its agent/manager
By ________________________________
Title:
KZH ING-1 LLC
By ________________________________
Title:
KZH ING-2 LLC
By ________________________________
Title:
KZH ING-3 LLC
By ________________________________
Title:
ARCHIMEDES FUNDING, L.L.C.
By: ING Capital Advisors LLC,
as Collateral Manager
By ________________________________
Title:
S-3
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ARCHIMEDES FUNDING II, LTD.
By: ING Capital Advisors LLC,
as Collateral Manager
By ________________________________
Title:
S-4
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FIRST DOMINION FUNDING III
By ________________________________
Title:
S-4(a)
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CONSENT
Dated as of October 13, 2000
The undersigned, each Guarantor under either (x) the Guaranty
dated as of June 30, 1999 (the "U.S. Guaranty") in favor of the Secured Parties
(as defined in the Credit Agreement referred to in the foregoing Amendment) or
(y) the Guaranty dated as of June 30, 1999 (the "Canadian Guaranty" and
collectively with the U.S. Guaranty, the "Guaranties") in favor of the Secured
Parties (as defined in the Credit Agreement referred to in the foregoing
Amendment), hereby consents to such Amendment and hereby confirms and agrees
that (a) notwithstanding the effectiveness of such Amendment, the Guaranty to
which each of the undersigned is a party and each of the Collateral Documents
is, and shall continue to be, in full force and effect and is hereby ratified
and confirmed in all respects, except that on and after the effectiveness of
such Amendment, each reference in each Guaranty and each of the Collateral
Documents to the "Credit Agreement", "thereunder", "thereof" or words of like
import shall mean and be a reference to the Credit Agreement, as amended by such
Amendment, and (b) the Collateral Documents to which Guarantor is a party and
all of the Collateral described therein do, and shall continue to, secure the
payment of all of the Secured Obligations (in each case, as defined therein).
TLSP TRADEMARKS, INC.
By ________________________________
Title:
TELESPECTRUM GOVERNMENT SERVICES, INC.
By ________________________________
Title:
CRW FINANCIAL INC.
By ________________________________
Title:
S-5
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TELESPECTRUM WORLDWIDE (CANADA) INC.
By ________________________________
Title:
S-6
