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EXHIBIT 4.4
AMENDMENT XX. 0
XXXXXXXXX XX. 0 dated as of October 4, 1999, among CLIENTLOGIC HOLDING
CORPORATION, a corporation duly organized and validly existing under the laws of
the State of Delaware (the "Company"); each of the Subsidiaries of the Company
identified under the caption "Subsidiary Guarantors" on the signature pages
hereto (individually, a "Subsidiary Guarantor" and, collectively, the
"Subsidiary Guarantors" and, collectively with the Company, the "Obligors");
each of the lenders that is a signatory hereto (individually, a "Lender" and,
collectively, the "Lenders"); and TORONTO DOMINION (TEXAS), INC., a Delaware
corporation, as agent for the Lenders (in such capacity, together with its
successors in such capacity, the "Agent").
The Company, the Subsidiary Guarantors, the Lenders and the Agent are
parties to a Credit Agreement dated as of May 25, 1999 (as heretofore modified
and supplemented and in effect on the date hereof, the "Credit Agreement"),
providing, subject to the terms and conditions thereof, for extensions of credit
(by making loans and issuing letters of credit) to be made by said Lenders to
the Company in an aggregate principal or face amount not exceeding $40,000,000.
The Company, the Subsidiary Guarantors, the Lenders and the Agent wish to amend
the Credit Agreement in certain respects and, accordingly, the parties hereto
hereby agree as follows:
Section 1. Definitions. Except as otherwise defined in this Amendment
No. 1, terms defined in the Credit Agreement are used herein as defined therein.
Section 2. Amendments. Subject to the satisfaction of the conditions
precedent specified in Section 4 below, but effective as of the date hereof, the
Credit Agreement shall be amended as follows:
Section 2.01. Definitions. Section 1.01 of the Credit Agreement
(Definitions) shall be amended by adding the following new definitions (to the
extent not currently included in the Credit Agreement) and inserting the same in
the appropriate alphabetical locations, and by amending the following
definitions (to the extent currently included in the Credit Agreement) as
follows:
"Adverbe" shall mean Groupe Adverbe International
S.A., a French corporation.
"Bank of Scotland Debt" shall mean Indebtedness of
the Cordena Group held by Bank of Scotland in an aggregate
principal amount not to exceed 29,000,000 Dutch guilders.
"Cordena" shall mean Cordena Call Management B.V., a
Netherlands Antilles corporation.
"Cordena Acquisitions" shall mean, collectively, (a)
the acquisition by Foreign Holding Company of all of the
capital stock of
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Cordena for an aggregate consideration (including the amount
of any Indebtedness assumed) not to exceed 45,200,000 Dutch
guilders, and (b) the acquisition by Foreign Holding Company
of all of the capital stock of Adverbe, for an aggregate
consideration (including Indebtedness assumed) not to exceed
61,000,000 French francs.
"Cordena Group" shall mean Cordena, Adverbe and their
respective Subsidiaries.
"Foreign Holding Company" shall mean ClientLogic
International Holding, Inc., a Delaware corporation and a
wholly-owned Subsidiary of the Company.
"ING Debt" shall mean Indebtedness of the Cordena
Group held by ING Bank N.V. in an aggregate principal amount
not to exceed 10,000,000 Dutch guilders.
"Tranche 2 Commitment Termination Date" shall mean
the fourth anniversary of the Closing Date.
Section 2.02. Cordena Acquisitions. Section 9.08(d) of the Credit
Agreement (Investments Consisting of Permitted Acquisitions) shall be amended by
adding the following at the end thereof:
", and the Cordena Acquisitions;"
Section 2.03. Investments in the Cordena Group Financed by Equity.
Section 9.08(f) of the Credit Agreement (Investments in Subsidiaries that are
not Subsidiary Guarantors) shall be amended by adding the following clause (z)
at the end thereof
"and (z) Investments consisting of advances to members of the
Cordena Group (which advances may be subordinated to the prior
payment in full of the Bank of Scotland Debt) to the extent
that (A) each such advance is financed solely with the
proceeds of contributions to the common equity capital of the
Company made concurrently with such Investment and (B) such
advance is evidenced by a promissory note that is endorsed in
blank and delivered in pledge to the Agent under the Security
Agreement."
Section 2.04. Bank of Scotland Debt. Section 9.07 of the Credit
Agreement (Indebtedness) shall be amended as follows:
(a) Clause (d) thereof shall be amended in its entirety to read as
follows:
"(d) Guarantees of Indebtedness otherwise permitted
by this Section 9.07 (except that no Obligor may Guarantee or
incur any of the Bank of Scotland Debt or the ING Debt);"
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(b) The word "and" at the end of clause (j) thereof shall be deleted,
the period at the end of clause (k) shall be replaced with "; and" and following
new clause (1) shall be added:
"(1) Indebtedness of the Cordena Group consisting of
the Bank of Scotland Debt and the ING Debt".
Section 2.05. Bank of Scotland Liens. Section 9.06 of the Credit
Agreement (Liens) shall be amended by deleting the word "and" at the end of
clause (1) thereof, replacing the period at the end of clause (m) with "; and"
and by adding the following new clause (n):
"(n) Liens on Property of the Cordena Group securing
the Bank of Scotland Debt and the ING Debt."
Section 2.06. Capital Expenditures by the Cordena Group. Section
9.10(c) of the Credit Agreement (Capital Expenditures in Connection with
Permitted Acquisitions) shall be amended in its entirety to read as follows:
"(c) in addition, the Company and its Subsidiaries
may consummated Permitted Acquisitions and the Cordena
Acquisitions (and any capital assets acquired in any such
Permitted Acquisition or in the Cordena Acquisitions are not
subject to the restrictions set forth in Section 9.10(a)
hereof); and"
Section 2.07. Treatment of Cash Flow and Indebtedness of the Cordena
Group.
(a) The definition of "Gross Cash Flow" in Section 1.01 of the Credit
Agreement shall be amended by adding the following immediately following the
first parenthetical phrase therein:
", other than, solely for purposes of the definition of
"Adjusted Cash Flow" in this Section 1.01, the Cordena Group,"
(b) The reference to "Indebtedness of the Company and its Subsidiaries"
in clause (a)(i) of the definition of "Total Debt to Cash Flow Ratio" in Section
1.01 of the Credit Agreement shall be replaced with a reference to the
following:
"Indebtedness of the Company and its Subsidiaries (other than
the Bank of Scotland Debt and the ING Debt)"
(c) Clause (b) of the definition of "Cash Flow to Debt Service Ratio"
in Section 1.01 of the Credit Agreement shall be amended in its entirety to read
as follows:
"(b) Prospective Debt Service (other than any
Prospective Debt Service in respect of the Bank of Scotland
Debt or the ING Debt) for such calculation date."
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(d) Clause (b) of the definition of "Cash Flow to Interest Expense
Ratio" in Section 1.01 of the Credit Agreement shall be amended in its entirety
to read as follows:
"(b) Interest Expense (other than any Interest
Expense in respect of the Bank of Scotland Debt or the ING
Debt) for the period of four consecutive fiscal quarters
ending on, or most recently ended prior to, such calculation
date."
Section 3. Representations and Warranties. Each of the Obligors
represents and warrants to the Lenders that (a) the representations and
warranties set forth in Section 8 of the Credit Agreement are true and complete
on the date hereof as if made on and as of the date hereof and as if each
reference in said Section 8 to "this Agreement" included reference to this
Amendment No. 1 and (b) as of the date hereof, no Default is continuing.
Section 4. Conditions Precedent. As provided in Section 2 above, the
amendments to the Credit Agreement set forth in said Section 2 shall become
effective, as of the date hereof, upon the satisfaction of the following
conditions precedent:
Section 4.01. Execution by All Parties. This Amendment No. 1 shall have
been executed and delivered by each of the parties hereto.
Section 4.02. Documents. The Agent shall have received the following
documents, each of which shall be satisfactory to the Agent in form and
substance:
(1) Pledge of Intercompany Note. Each promissory note
evidencing advances made by any of the Obligors to members of the
Cordena Group (if any), duly endorsed in blank.
(2) Pledge of Cordena and Adverbe. Certificates representing
shares of capital stock of each of Cordena and Adverbe (but only to the
extent that the capital stock of such corporation is represented by
certificates), representing at least 65% of the total capital stock of
each such corporation, together with stock powers duly executed in
blank.
(3) Bank of Scotland Documents and ING Documents. Copies of
each of the documents or other instruments evidencing or governing the
Bank of Scotland Debt and the ING Debt.
(4) Foreign Holding Corporation as a Subsidiary Guarantor. The
Company shall have complied with its obligations under Section 9.18(b)
of the Credit Agreement with respect to Foreign Holding Company.
Section 5. Joinder by Foreign Holding Company. By its signature below,
ClientLogic International Holding, Inc. hereby assumes all of the obligations of
a "Subsidiary Guarantor" and an "Obligor" under the Credit Agreement and the
other Basic
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Documents and agrees that it is, for all purposes of the Credit Agreement and
the other Basic Documents, a Subsidiary Guarantor and an Obligor.
Section 6. Miscellaneous. Except as herein provided, the Credit
Agreement shall remain unchanged and in full force and effect. This Amendment
No. 1 may be executed in any number of counterparts, all of which taken together
shall constitute one and the same amendatory instrument and any of the parties
hereto may execute this Amendment No. 1 by signing any such counterpart. This
Amendment No. 1 shall be governed by, and construed in accordance with, the law
of the State of New York.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1
to be duly executed and delivered as of the day and year first above written.
CLIENTLOGIC HOLDING CORPORATION
By /s/ XXXX XXXXXXX
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Title: Xxxx Xxxxxxx, Senior Vice President
SUBSIDIARY GUARANTORS
LCS INDUSTRIES, INC.
By /s/ XXXX XXXXXXX
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Title: Xxxx Xxxxxxx, Senior Vice President
CATALOG LIQUIDATORS, INC.
By /s/ XXXX XXXXXXX
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Title: Xxxx Xxxxxxx, Senior Vice President
LCS CANADA, INC.
By /s/ XXXX XXXXXXX
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Title: Xxxx Xxxxxxx, Senior Vice President
CATALOG RESOURCES, INC.
By /s/ XXXX XXXXXXX
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Title: Xxxx Xxxxxxx, Senior Vice President
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SPEC HOLDINGS, INC.
By /s/ XXXX XXXXXXX
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Title: Xxxx Xxxxxxx, Senior Vice President
THE SPECIALIST, LTD.
By /s/ XXXX XXXXXXX
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Title: Xxxx Xxxxxxx, Senior Vice President
COMPUTER MARKETING SYSTEMS INC.
By /s/ XXXX XXXXXXX
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Title: Xxxx Xxxxxxx, Senior Vice President
CLIENTLOGIC CORPORATION
By /s/ XXXX XXXXXXX
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Title: Xxxx Xxxxxxx, Senior Vice President
CLIENTLOGIC INTERNATIONAL HOLDING, INC.
By /s/ XXXXXX X. XXXXXXXX
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Title: Xxxxxx X. Xxxxxxxx, President
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LENDERS
TORONTO DOMINION (TEXAS), INC.
By /s/ XXXXXXXX XXXXXXXX
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Title: Xxxxxxxx Xxxxxxxx, Vice President
THE BANK OF NOVA SCOTIA
By /s/ XXXX X. XXXXXX
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Title: Xxxx X. Xxxxxx, Authorized
Signatory
AGENT
TORONTO DOMINION (TEXAS), INC.,
as Agent
By /s/ XXXXXXXX XXXXXXXX
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Title: Xxxxxxxx Xxxxxxxx, Vice President
