EXHIBIT 10
TELESPECTRUM WORLDWIDE INC.
AMENDMENT AND LIMITED WAIVER TO CREDIT AGREEMENT
This AMENDMENT AND LIMITED WAIVER TO CREDIT AGREEMENT (this
"AMENDMENT AND WAIVER") is dated as of September 19, 2002 and entered into by
and among TELESPECTRUM WORLDWIDE INC., a Delaware corporation ("BORROWER"), the
financial institutions listed on the signature pages hereof ("LENDERS"), BNP
Paribas, as administrative agent and collateral agent for Lenders ("AGENT") and
the Credit Support Parties (as defined below) solely for purposes of Section 5
hereof and is made with reference to that certain Second Amended and Restated
Credit Agreement dated as of April 29, 2002 (as amended from time to time, the
"CREDIT AGREEMENT"), by and among Borrower, Lenders and Agent. Capitalized terms
used herein without definition shall have the same meanings herein as set forth
in the Credit Agreement.
RECITALS
WHEREAS, Borrower has informed Lenders that it was not in compliance
with the covenant set forth in Section 5.04(a) of the Credit Agreement for the
three month period ending June 30, 2002 and (b) the Lenders have agreed to waive
compliance with such sections for such periods (and any related Defaults or
Events of Default);
WHEREAS, Borrower has informed Lenders that it was not be able to
obtain approval of the Charter Amendment within 120 days of the Second
Restatement Date and the Lenders have agreed to waive any Default or Event of
Default under Section 6.01(p) of the Credit Agreement caused thereby; and
WHEREAS, Borrower and Lenders desire to amend the Credit Agreement
to amend certain covenant levels.
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto agree as follows:
SECTION 1. WAIVER
A. Subject to the terms and conditions set forth herein and in
reliance on the representations and warranties of Borrower herein contained,
Lenders hereby waive compliance with the provisions of Section 5.04(a) of the
Credit Agreement with respect to the three month period ending June 30, 2002 and
any related Defaults or Events of Default;
B. Subject to the terms and conditions set forth herein and in
reliance on the representations and warranties of Borrower herein contained,
Lenders hereby waive any Default or Event of Default under Section 6.01(p) of
the Credit Agreement caused by the failure to obtain approval of the Charter
Amendment within 120 days of the Second Restatement Date; provided that, to the
extent that the failure to obtain approval of the
Charter Amendment within 120 days of the Second Restatement Date would
constitute an Event of Default but for the foregoing waiver, it shall be an
Event of Default on and after November 14, 2002 unless the relevant provisions
of the Credit Agreement are otherwise waived or amended on or prior to such
date.
SECTION 2. LIMITATION OF WAIVER
Without limiting the generality of the provisions of Section 8.01 of
the Credit Agreement, the waiver set forth above shall be limited precisely as
written and relates solely to the noncompliance by Borrower with the provisions
of Section 5.04(a) of the Credit Agreement (and any related Defaults or Events
of Default) and any Defaults or Events of Default under Section 6.01(p) of the
Credit Agreement in the manner and to the extent described above, and nothing in
this Amendment and Waiver shall be deemed to:
A. Constitute (i) a waiver of compliance by Borrower with respect to
(a) Section 5.04(a) of the Credit Agreement in any other instance or (b) any
other term, provision or condition of the Credit Agreement or any other
instrument or agreement referred to therein (whether in connection with this
waiver of Section 5.04(a) of the Credit Agreement or otherwise) or (ii) a waiver
of any Default or Event of Default except as expressly provided herein; or
B. prejudice any right or remedy that 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 and Waiver) or may
have in the future under or in connection with the Credit Agreement or any other
instrument or agreement referred to therein.
SECTION 3. AMENDMENTS
A. Section 5.04(a) of the Credit Agreement is hereby amended by deleting
such Section in its entirety and substituting the following therefor:
"(a) Minimum Consolidated EBITDA. Not permit Consolidated EBITDA for any
period set forth below to be less than the correlative amount indicated:
PERIOD MINIMUM CONSOLIDATED EBITDA
July 1, 2002 - September 30, 2002 ($ 100,000)
October 1, 2002 - December 31, 2002 $ 963,000
January 1, 2003 - March 31, 2003 $1,795,000
April 1, 2003-June 30, 2003 $2,370,000
July 1, 2003 - September 30, 2003 $2,976,700
October 1, 2003 - December 31, 2003 $2,890,000
2
For each Fiscal Quarter commencing after December 31, 2003, Minimum
Consolidated EBITDA shall not be less than 85% of the projected
Consolidated EBITDA for such Fiscal Quarter as set forth in the business
plan covering such Fiscal Quarter, delivered pursuant to Section 5.03(d)
hereof."
B. Section 5.04(b) of the Credit Agreement is hereby amended by deleting
such Section in its entirety and substituting the following therefor:
"(b) Minimum Fixed Charge Coverage Ratio. Not permit the ratio of (i)
Consolidated EBITDA to (ii) Consolidated Fixed Charges for any period set forth
below to be less than the correlative ratio indicated:
MINIMUM FIXED CHARGE
PERIOD COVERAGE RATIO
April 1, 2002 - June 30, 2002 0.76:1.00
April 1, 2002 - September 30, 2002 N/A
July 1, 2002 - December 31, 2002 0.61:1.00
July 1, 2002 - March 31, 2003 1.00:1.00
July 1, 2002 - June 30, 2003 1.31:1.00
October 1, 2002 - September 30, 2003 1.83:1.00
January 1, 2003 - December 31, 2003 2.15:1.00
Not permit the ratio of (i) Consolidated EBITDA to (ii) Consolidated Fixed
Charges for any rolling four-Fiscal Quarter period ending after December 31,
2003 to be less than 2.15:1.00."
SECTION 4. REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Amendment and Waiver,
Borrower, by its execution of a counterpart of this Amendment and Waiver,
represents and warrants that after giving effect to this Amendment and Waiver
(a) no Default or Event of Default exists under the Credit Agreement, (b) all
representations and warranties contained in the Credit Agreement and the other
Loan Documents are true, correct and complete in all material respects on and as
of the date hereof except to the extent such representations and warranties
specifically relate to an earlier date, in which case they were true, correct
and complete in all material respects on and as of such earlier date, and (c)
Borrower has performed all agreements to be performed on its part as set forth
in the Credit Agreement.
SECTION 5. ACKNOWLEDGEMENT AND CONSENT
Borrower is a party to the U.S. Security Agreement, Intercompany
Subordination Agreement, TLSP Investments Subordination Agreement, and TLSP
Trademarks Subordination Agreement in each case as amended, restated,
supplemented or
3
otherwise modified through the effective date of this Amendment and Waiver,
pursuant to which Borrower has (i) created Liens in favor of Collateral Agent
and Lenders on certain Collateral to secure the Secured Obligations (as defined
in the U.S. Security Agreement) and (ii) subordinated in favor of Collateral
Agent and Lenders the Subordinated Debt (as defined in the Intercompany
Subordination Agreement, TLSP Investments Subordination Agreement, TLSP
Trademarks Subordination Agreement, respectively) to the Obligations (as defined
in the TLSP Investments Subordination Agreement, TLSP Trademarks Subordination
Agreement, respectively) or the Senior Obligations (as defined in the
Intercompany Subordination Agreement), as the case may be. TLSP Trademarks,
Inc., Telespectrum Government Services, Inc. and CRW Financial Inc.
(collectively, the "U.S. SUBSIDIARY GUARANTORS") are parties to the U.S.
Security Agreement and the Guaranty, in each case as amended, restated,
supplemented or otherwise modified through the date of this Amendment and
Waiver, pursuant to which each has (i) created Liens in favor of Collateral
Agent and Lenders on the Collateral to secure the Secured Obligations (as
defined in the U.S. Security Agreement), and (ii) has guaranteed the Guaranteed
Obligations (as defined in the Guaranty). TLSP Trademarks, Inc. and CRW
Financial Inc. are parties to the Intercompany Subordination Agreement, as
amended, restated, supplemented or otherwise modified through the date of this
Amendment and Waiver, pursuant to which each has subordinated in favor of
Collateral Agent and Lenders the Subordinated Debt (as defined in the
Intercompany Subordination Agreement) to the Senior Obligations (as defined in
the Intercompany Subordination Agreement). Telespectrum Worldwide (Canada) Inc.
(formerly Telespectrum Worldwide (Canada) Inc. and S&P Data Corp., as
amalgamated, "TW CANADA") is a party to the Canadian Security Agreements, the
Debenture Pledge Agreement, the Canadian Guaranty, the TLSP Investments
Subordination Agreement and the Intercompany Subordination Agreement pursuant to
which it has (i) created Liens in favor of Collateral Agent and Lenders on the
Collateral to secure the Obligations (as defined in the Canadian Security
Agreement), (ii) pledged to the Collateral Agent the Debenture to secure the
Obligations (as defined in the Canadian Debenture Pledge Agreement), (iii) has
guaranteed the Guaranteed Obligations (as defined in the Canadian Guaranty), and
(iv) subordinated in favor of Collateral Agent and Lenders the Subordinated Debt
(as defined in the Intercompany Subordination Agreement) to the Senior
Obligations (as defined in the Intercompany Subordination Agreement). TLSP
Investments, Inc. ("TLSP INVESTMENTS") is a party to the TLSP Investments
Subordination Agreement, as amended, restated, supplemented or otherwise
modified through the date of this Amendment and Waiver, pursuant to which TLSP
Investments has subordinated in favor of Collateral Agent and Lenders the
Subordinated Debt (as defined in the TLSP Investments Subordination Agreement)
to the Obligations (as defined in the TLSP Investments Subordination Agreement).
TLSP Trademarks, Inc. ("TLSP TRADEMARKS") is a party to the TLSP Trademarks
Subordination Agreement, as amended, restated, supplemented or otherwise
modified through the date of this Amendment and Waiver, pursuant to which TLSP
Trademarks has subordinated in favor of Collateral Agent and Lenders the
Subordinated Debt (as defined in the TLSP Trademarks Subordination Agreement) to
the Obligations (as defined in the TLSP Trademarks Subordination Agreement).
Borrower, U.S. Subsidiary Guarantors, TLSP Investments and TW Canada are
collectively referred to herein as the "CREDIT SUPPORT PARTIES," and the U.S.
Security Agreement, the Canadian Security Agreements, the Debenture Pledge
Agreement, the Intercompany Subordination Agreement, the TLSP Subordination
Agreements, the U.S.
4
Guaranty, and the Canadian Guaranty, are collectively referred to herein as the
"CREDIT SUPPORT DOCUMENTS."
Each Credit Support Party hereby acknowledges that it has reviewed
the terms and provisions of the Credit Agreement and this Amendment and Waiver
and consents to the modification of the terms of the Credit Agreement effected
pursuant to this Amendment and Waiver. Each Credit Support Party hereby confirms
that each Credit Support Document to which it is a party or otherwise bound and
all Collateral encumbered or Subordinated Debt subordinated thereby, as the case
may be (in each case as such terms are defined in the applicable Credit Support
Documents), will continue to guaranty, secure or be subordinated to, as the case
may be, to the fullest extent possible, the payment and performance of all
"Guaranteed Obligations," "Secured Obligations," "Senior Obligations," or
"Obligations," as the case may be (in each case as such terms are defined in the
applicable Credit Support Document) to and in favor of Lenders and the
Collateral Agent, including without limitation the payment and performance of
all such "Obligations," "Guaranteed Obligations," "Secured Obligations" or
"Senior Obligations," as the case may be, in respect of the Obligations of
Borrower now or hereafter existing under or in respect of the Credit Agreement
and the Notes defined therein. Without limiting the generality of the foregoing,
each Credit Support Party hereby acknowledges and confirms the understanding and
intent of such party that, upon the effective date of this Amendment and Waiver,
the definition of "Secured Obligations," "Guaranteed Obligations," "Obligations"
and "Senior Obligations" (in each case as such terms are defined in the
applicable Credit Support Document) will include the Obligations of Borrower
under the Credit Agreement as modified hereby and that all references in the
Credit Support Documents to the "Credit Agreement" shall be deemed to be
references to the Credit Agreement as modified hereby.
Each Credit Support Party acknowledges and agrees that any of the
Credit Support Documents to which it is a party or otherwise bound shall
continue in full force and effect and that all of its obligations thereunder
(which obligations on the date hereof remain absolute and unconditional and are
not subject to any defense, set-off or counterclaim) shall be valid and
enforceable and shall not be impaired or limited by the execution or
effectiveness of this Amendment and Waiver. Each Credit Support Party represents
and warrants that all representations and warranties contained in the Credit
Agreement and the Credit Support Documents to which it is a party or otherwise
bound are true and correct in all material respects on and as of the effective
date of this Amendment and Waiver to the same extent as though made on and as of
that date, except to the extent such representations and warranties specifically
relate to an earlier date, in which case they were true and correct in all
material respects on and as of such earlier date.
Each Credit Support Party (other than Borrower, in its capacity as
borrower) acknowledges and agrees that (i) notwithstanding the conditions to
effectiveness set forth in this Amendment and Waiver, such Credit Support Party
is not required by the terms of the Credit Agreement or any other Loan Document
to consent to the modifications to the Credit Agreement effected pursuant to
this Amendment and Waiver and (ii) nothing in the Credit Agreement, this
Amendment and Waiver or any other Loan Document shall be deemed to require the
consent of such Credit Support Party to any future amendments to the Credit
Agreement.
5
SECTION 6. REFERENCE TO AND EFFECT ON THE CREDIT AGREEMENT AND THE OTHER LOAN
DOCUMENTS.
A. On and after the effective date of this Amendment and Waiver,
each reference in the Credit Agreement to "this Agreement," "hereunder,"
"hereof," "herein" or words of like import referring to the Credit Agreement,
and each reference in the other Loan Documents to the "Credit Agreement,"
"thereunder," "therein," "thereof" or words of like import referring to the
Credit Agreement shall mean and be a reference to the Credit Agreement as
modified hereby.
B. Except as specifically amended by this Amendment and Waiver, the
Credit Agreement and the other Loan Documents shall remain in full force and
effect and are hereby ratified and confirmed.
C. The execution, delivery and performance of this Amendment and
Waiver shall not, except as expressly provided herein, constitute a waiver of
any provision of, or operate as a waiver of any right, power or remedy of Agent
or any Lender under the Credit Agreement or any of the other Loan Documents.
SECTION 7. FEES AND EXPENSES
Borrower acknowledges that all costs, fees and expenses as described in
Section 8.04 of the Credit Agreement incurred by Agent and its counsel with
respect to this Amendment and Waiver and the documents and transactions
contemplated hereby shall be for the account of Borrower.
SECTION 8. HEADINGS
Section and subsection headings in this Amendment and Waiver are included
herein for convenience of reference only and shall not constitute a part of this
Amendment and Waiver for any other purpose or be given any substantive effect.
SECTION 9. APPLICABLE LAW
THIS AMENDMENT AND WAIVER AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK.
SECTION 10. COUNTERPARTS; EFFECTIVENESS
This Amendment and Waiver may be executed in any number of counterparts
and by different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument; signature pages may
be detached from multiple separate counterparts and attached to a single
counterpart so that all signature pages are physically attached to the same
document. This Amendment and Waiver shall become effective upon the execution of
a counterpart hereof by Borrower, the Credit Support Parties and Required
6
Lenders and receipt by Borrower and Agent of written or telephonic notification
of such execution and authorization of delivery thereof.
[Remainder of Page Intentionally Left Blank]
7
IN WITNESS WHEREOF, the parties hereto have caused this Waiver to be
duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
BORROWER:
TELESPECTRUM WORLDWIDE INC.
By: /s/ Xxxx X. Xxxxxxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxxxxxx
Title: Chief Financial Officer
CREDIT SUPPORT PARTIES (solely for
purposes of Section 5 hereof):
TELESPECTRUM GOVERNMENT SERVICES, INC.
By: /s/ Xxxx X. Xxxxxxxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxxxxxxx
Title:
CRW FINANCIAL INC.
By: /s/ Xxxx X. Xxxxxxxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxxxxxxx
Title:
S-1
TELESPECTRUM WORLDWIDE (CANADA) INC.
(formerly Telespectrum Worldwide
(Canada) Inc. and S&P Data Corp.,
as amalgamated)
By: /s/ Xxxx X. Xxxxxxxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxxxxxxx
Title:
TLSP INVESTMENTS INC.
By: /s/ Xxxx X. Xxxxxxxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxxxxxxx
Title:
TLSP TRADEMARKS INC.
By: /s/ Xxxx X. Xxxxxxxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxxxxxxx
Title:
S-2
LENDERS:
BNP PARIBAS (F/K/A BANQUE NATIONALE DE
PARIS), as Administrative Agent,
Collateral Agent and a Lender
By: /s/ Xxx Xxxxxxxxx
---------------------------------------
Name: Xxx Xxxxxxxxx
Title: Director
By: /s/ Xxxxxx Xxxxx
---------------------------------------
Name: Xxxxxx Xxxxx
Title: Director
S-3
ENDEAVOR, LLC
by its manager, PPM America, Inc.
as a Lender
By: /s/ Xxxxxx Xxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
S-4
FLEET NATIONAL BANK (F/K/A BANKBOSTON,
N.A.), as a Lender
By: /s/ G. Xxxxxxxxxxx Xxxxxx
---------------------------------
Name: G. Xxxxxxxxxxx Xxxxxx
Title: Vice President
S-5
XXX XXXXXX PRIME RATE INCOME
TRUST, as a Lender
By: Xxx Xxxxxx Investment Advisory Corp.
By: /s/ Xxxxxxxxx Xxxxxxxx
---------------------------------------
Name: Xxxxxxxxx Xxxxxxxx
Title: Vice President
S-6
XXX XXXXXX SENIOR FLOATING RATE
FUND, as a Lender
By: Xxx Xxxxxx Investment Advisory Corp.
By: /s/ Xxxxxxxxx Xxxxxxxx
---------------------------------------
Name: Xxxxxxxxx Xxxxxxxx
Title: Vice President
S-7
XXX XXXXXX SENIOR INCOME TRUST, as a Lender
By: Xxx Xxxxxx Investment Advisory Corp.
By: /s/ Xxxxxxxxx Xxxxxxxx
---------------------------------------
Name: Xxxxxxxxx Xxxxxxxx
Title: Vice President
S-8
TBH-I, L.P., as a Lender
By:
---------------------------------
Name:
Title:
S-9
XXXXX FARGO BANK, N.A., as a Lender
By: /s/ Xxxxx Xxxxx
---------------------------------------
Name: Xxxxx Xxxxx
Title: Vice President/Principal
S-10
FIRST SOURCE LOAN OBLIGATIONS
TRUST, as a Lender
By: First Source Financial, Inc., its
Servicer and Administrator
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President
S-11
ENDURANCE CLO I, LTD, as a Lender
By: ING Capital Advisors, LLC
As Portfolio Manager
By:
---------------------------------
Name:
Title:
S-12
KZH ING-2 LLC, as a Lender
By: /s/ Xxxxx Xxx
---------------------------------------
Name: Xxxxx Xxx
Title: Authorized Agent
S-13
KZH ING-3 LLC, as a Lender
By: /s/ Xxxxx Xxx
---------------------------------------
Name: Xxxxx Xxx
Title: Authorized Agent
S-14
ARCHIMEDES FUNDING, L.L.C. , as a Lender
By: ING Capital Advisors, LLC,
as Collateral Manager
By:
---------------------------------
Name:
Title:
S-15
ARCHIMEDES FUNDING II, L.L.C., as a Lender
By: ING Capital Advisors, LLC,
as Collateral Manager
By:
---------------------------------
Name:
Title:
S-16
FIRST DOMINION FUNDING III, as a Lender
By:
---------------------------------
Name:
S-17
