FIFTH AMENDMENT AGREEMENT
Exhibit 10.1
This FIFTH AMENDMENT AGREEMENT (this “Amendment”) is made as of the 4th day of
September, 2008 among:
(a) TELETECH HOLDINGS, INC., a Delaware corporation (“Borrower”);
(b) the Lenders, as defined in the Credit Agreement;
(c) KEYBANK NATIONAL ASSOCIATION, as the lead arranger, sole book runner and
administrative agent for the Lenders under this Agreement (“Agent”); and
(d) XXXXX FARGO BANK, N.A., as syndication agent.
WHEREAS, Borrower, Agent and the Lenders are parties to that certain Amended and Restated
Credit Agreement, dated as of September 28, 2006, that provides, among other things, for loans and
letters of credit aggregating One Hundred Eighty Million Dollars ($180,000,000), all upon certain
terms and conditions (as amended and as the same may from time to time be further amended, restated
or otherwise modified, the “Credit Agreement”);
WHEREAS, Borrower, Agent and the Lenders desire to amend the Credit Agreement to modify
certain provisions thereof;
WHEREAS, each capitalized term used herein and defined in the Credit Agreement, but not
otherwise defined herein, shall have the meaning given such term in the Credit Agreement; and
WHEREAS, unless otherwise specifically provided herein, the provisions of the Credit Agreement
revised herein are amended effective as of the date of this Amendment;
NOW, THEREFORE, in consideration of the premises and of the mutual covenants herein and for
other valuable consideration, Borrower, Agent and the Lenders agree as follows:
1. Amendment to Definitions. Section 1.1 of the Credit Agreement is hereby amended to
delete the definition of “Total Commitment Amount” therefrom, and to insert in place thereof the
following:
“Total Commitment Amount” shall mean (a) for any date prior to the Fifth Amendment
Effective Date, the Total Commitment Amount as in effect prior to such date, and (b) on the
Fifth Amendment Effective Date and thereafter, Two Hundred Twenty-Five Million Dollars
($225,000,000), as such amount may be decreased pursuant to Section 2.9(a) hereof.
2. Addition to Definitions. Section 1.1 of the Credit Agreement is hereby amended to
add the following new definition thereto:
“Fifth Amendment Effective Date” shall mean September 4, 2008.
3. Amendment to Schedule 1. The Credit Agreement is hereby amended to delete
Schedule 1 (Commitments of Lenders) therefrom and to insert in place thereof a new
Schedule 1 in the form of Schedule 1 hereto.
4. Exercise of Accordion and Reallocation of Outstanding Amounts. By execution of
this Amendment, Borrower exercises the accordion provision set forth in Section 2.9(b) of the
Credit Agreement. Pursuant to such exercise, on the Fifth Amendment Effective Date, the Lenders
shall make adjustments among themselves with respect to the Loans then outstanding and amounts of
principal with respect thereto as shall be
necessary, in the opinion of Agent, in order to
reallocate among such Lenders such outstanding amounts, based on the revised Commitment as set
forth in the revised Schedule 1 hereto.
5. Closing Deliveries. Concurrently with the execution of this Amendment, Borrower
shall:
(a) deliver to Agent, for delivery to BNP Paribas and Fifth Third Bank, new Revolving
Credit Notes in the amounts specified in Schedule 1 to the Credit Agreement;
(b) deliver to Agent, for delivery to Bank of America, N.A. and The Northern Trust
Company, replacement Revolving Credit Notes in the amounts specified in Schedule 1
to the Credit Agreement;
(c) execute and deliver to Agent the Fifth Amendment Fee Letter, and pay the fees
stated therein;
(d) cause each Guarantor of Payment to execute the attached Acknowledgement and
Agreement; and
(e) pay all legal fees and expenses of Agent in connection with this Amendment.
6. Dissolution of Guarantor. Borrower hereby certifies that, on or about July 14,
2008, TeleTech Customer Services, Inc., a Nevada corporation, was dissolved as permitted pursuant
to the Credit Agreement. Borrower hereby certifies that, at the time of dissolution, TeleTech
Customer Services, Inc. was a Dormant Subsidiary.
7. Representations and Warranties. Borrower hereby represents and warrants to Agent
and the Lenders that (a) Borrower has the legal power and authority to execute and deliver this
Amendment; (b) the officers executing this Amendment have been duly authorized to execute and
deliver the same and bind Borrower with respect to the provisions hereof; (c) the execution and
delivery hereof by Borrower and the performance and observance by Borrower of the provisions hereof
do not violate or conflict with the organizational agreements of Borrower or any law applicable to
Borrower or result in a breach of any provision of or constitute a default under any other
agreement, instrument or document binding upon or enforceable against Borrower; (d) no Default or
Event of Default exists under the Credit Agreement, nor will any occur immediately after the
execution and delivery of this Amendment or by the performance or observance of any provision
hereof; (e) Borrower is not aware of any claim or offset against, or defense or counterclaim to,
Borrower’s obligations or liabilities under the Credit Agreement or any Related Writing; and
(f) this Amendment constitutes a valid and binding obligation of Borrower in every respect,
enforceable in accordance with its terms.
8. BNP Paribas and Fifth Third Bank as Lenders. By executing this Amendment, BNP
Paribas and Fifth Third Bank each represents and warrants to Borrower, Agent and the Lenders that
(a) it meets the requirements to be an assignee as set forth in Section 10.10 of the Credit
Agreement; (b) it is able to fund the Loans and the Letters of Credit as required by the Credit
Agreement; (c) it will perform, in accordance with their terms, all of the obligations which by the
terms of the Credit Agreement and the Related Writings are required to be performed by it as a
Lender thereunder; and (d) it has reviewed each of the Loan Documents. Both BNP Paribas and Fifth
Third Bank appoint Agent to take such action as agent on their respective behalf and to exercise
such powers under the Credit Agreement as are delegated to Agent by the terms thereof. On the date
of this Amendment, BNP Paribas and Fifth Third Bank shall each become and thereafter be deemed to
be a “Lender” for the purposes of the Credit Agreement and the other Loan Documents, and shall be
bound thereby as if it were an original signatory thereto. All notices, requests, demands and other
communications provided for under the Credit Agreement to BNP Paribas and Fifth Third Bank, mailed
or delivered, shall be addressed at the address specified on the signature pages of this Amendment,
or at such other address as shall be designated by BNP Paribas and Fifth Third Bank, respectively,
in a written notice to each of the other parties.
9. References to Credit Agreement. Each reference that is made in the Credit
Agreement or any Related Writing shall hereafter be construed as a reference to the Credit
Agreement as amended hereby. Except as
2
herein otherwise specifically provided, all terms and
provisions of the Credit Agreement are confirmed and ratified and shall remain in full force and
effect and be unaffected hereby. This Amendment is a Related Writing.
10. Waiver. Borrower, by signing below, hereby waives and releases Agent and each of
the Lenders, and their respective directors, officers, employees, attorneys, affiliates and
subsidiaries, from any and all claims, offsets, defenses and counterclaims of which Borrower is
aware, such waiver and release being with full knowledge and understanding of the circumstances and
effect thereof and after having consulted legal counsel with respect thereto.
11. Counterparts. This Amendment may be executed in any number of counterparts, by
different parties hereto in separate counterparts and by facsimile signature, 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 agreement.
12. Headings. The headings, captions and arrangements used in this Amendment are for
convenience only and shall not affect the interpretation of this Amendment.
13. Severability. Any term or provision of this Amendment held by a court of
competent jurisdiction to be invalid or unenforceable shall not impair or invalidate the remainder
of this Amendment and the effect thereof shall be confined to the term or provision so held to be
invalid or unenforceable.
14. Governing Law. The rights and obligations of all parties hereto shall be governed
by the laws of the State of Ohio, without regard to principles of conflicts of laws.
15. Binding Effect. This Amendment and the rights evidenced hereby shall inure to the
benefit of and be binding upon the successors and permitted assigns of the parties hereto, and
shall be enforceable by any such successors and assigns.
[Remainder of page intentionally left blank.]
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JURY TRIAL WAIVER. BORROWER, THE LENDERS AND AGENT, TO THE EXTENT PERMITTED BY
LAW, EACH HEREBY WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER
SOUNDING IN CONTRACT, TORT OR OTHERWISE, AMONG BORROWER, THE LENDERS AND AGENT, OR ANY THEREOF,
ARISING OUT OF, IN CONNECTION WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG
THEM IN CONNECTION WITH THIS AMENDMENT OR ANY NOTE OR OTHER INSTRUMENT, DOCUMENT OR AGREEMENT
EXECUTED OR DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS RELATED THERETO.
IN WITNESS WHEREOF, the parties have executed and delivered this Amendment as of the date
first set forth above.
| TELETECH HOLDINGS, INC. |
||||
| By: | /s/ Xxxx X. Xxxxx, Xx. | |||
| Xxxx X. Xxxxx, Xx. | ||||
| Interim Chief Financial Officer | ||||
| KEYBANK NATIONAL ASSOCIATION, as Agent and as a Lender |
||||
| By: | /s/ Xxxx Xxxxxxxxxx | |||
| Xxxx Xxxxxxxxxx | ||||
| Senior Vice President | ||||
| XXXXX FARGO BANK, N.A., as Syndication Agent and as a Lender |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: Xxxxxx X. Xxxxxx | ||||
| Title: Vice President | ||||
| BANK OF AMERICA, N.A. |
||||
| By: | /s/ Xxxxxxxx X. Xxxxxxxx | |||
| Name: Xxxxxxxx X. Xxxxxxxx | ||||
| Title: Vice President | ||||
Signature Page 1 of 2
to Fifth Amendment Agreement
to Fifth Amendment Agreement
| JPMORGAN CHASE BANK, N.A. | ||||||||||
| By: Name: |
/s/ Xxxxx X. Xxxxxxx
|
|||||||||
| Title: | Senior Vice President | |||||||||
| THE NORTHERN TRUST COMPANY | ||||||||||
| By: Name: |
/s/ Xxxxxxx Xxxxx
|
|||||||||
| Title: | Vice President | |||||||||
| WACHOVIA BANK, NATIONAL ASSOCIATION | ||||||||||
| By: Name: |
/s/ Tray Xxxxx
|
|||||||||
| Title: | Vice President | |||||||||
| Address: | BNP PARIBAS | |||||||||
| By: | /s/ Xxxxxxx Xxxxxxxx | |||||||||
| Name and Title: Xxxxxxx Xxxxxxxx, Director | ||||||||||
Attn: |
||||||||||
| By: | /s/ Xxxxxx Xxxxxx | |||||||||
| Name and Title: Xxxxxx Xxxxxx, Managing Director | ||||||||||
| Address: | FIFTH THIRD BANK | |||||||||
| By: | /s/ Xxxxxxx Xxxxxxx | |||||||||
Attn:
|
Name: | Xxxxxxx Xxxxxxx | ||||||||
| Title: | Assistant Vice President | |||||||||
Signature Page 2 of 2
to Fifth Amendment Agreement
to Fifth Amendment Agreement
ACKNOWLEDGMENT AND AGREEMENT
The undersigned consent and agree to and acknowledge the terms of the foregoing Fifth
Amendment Agreement dated as of September 4, 2008. The undersigned further agree that the
obligations of the undersigned pursuant to the Guaranty of Payment executed by the undersigned
shall remain in full force and effect and be unaffected hereby.
The undersigned hereby waive and release Agent and the Lenders and their respective directors,
officers, employees, attorneys, affiliates and subsidiaries from any and all claims, offsets,
defenses and counterclaims of which the undersigned are aware, such waiver and release being with
full knowledge and understanding of the circumstances and effect thereof and after having consulted
legal counsel with respect thereto.
JURY TRIAL WAIVER. THE UNDERSIGNED, TO THE EXTENT PERMITTED BY LAW, HEREBY WAIVE ANY
RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT OR
OTHERWISE, AMONG BORROWER, AGENT, THE LENDERS AND THE UNDERSIGNED, OR ANY THEREOF, ARISING OUT OF,
IN CONNECTION WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN
CONNECTION WITH THIS AMENDMENT OR ANY NOTE OR OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR
DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS RELATED THERETO.
| TELETECH SERVICES CORPORATION | TELETECH GOVERNMENT SOLUTIONS, LLC | |||||||||
By:
|
/s/ Xxxx X. Xxxxx, Xx.
|
By: | /s/ Xxxx X. Xxxxx, Xx.
|
|||||||
| Xxxx X. Xxxxx, Xx. | Xxxx X. Xxxxx, Xx. | |||||||||
| Interim Chief Financial Officer and | Interim Chief Financial Officer and | |||||||||
| Assistant Secretary | Assistant Secretary | |||||||||
| TELETECH CUSTOMER CARE MANAGEMENT (WEST VIRGINIA), INC. |
TELETECH CUSTOMER CARE MANAGEMENT (COLORADO), LLC |
|||||||||
By:
|
/s/ Xxxx X. Xxxxx, Xx. | By: | /s/ Xxxx X. Xxxxx, Xx. | |||||||
| Xxxx X. Xxxxx, Xx. | Xxxx X. Xxxxx, Xx. | |||||||||
| Interim Chief Financial Officer and | Interim Chief Financial Officer and | |||||||||
| Assistant Secretary | Assistant Secretary | |||||||||
Signature Page 1 of 2
to Acknowledgment and Agreement
to Acknowledgment and Agreement
| DIRECT ALLIANCE CORPORATION | TTEC NEVADA, INC. | |||||||||
By:
|
/s/ Xxxx X. Xxxxx, Xx.
|
By: | /s/ Xxxx X. Xxxxx, Xx.
|
|||||||
| Xxxx X. Xxxxx, Xx. | Xxxx X. Xxxxx, Xx. | |||||||||
| Interim Chief Financial Officer | Treasurer | |||||||||
| TELETECH STOCKTON, LLC | NEWGEN RESULTS CORPORATION | |||||||||
By:
|
/s/ Xxxx X. Xxxxx, Xx. | By: | /s/ Xxxx X. Xxxxx, Xx. | |||||||
| Xxxx X. Xxxxx, Xx. | Xxxx X. Xxxxx, Xx. | |||||||||
| Interim Chief Financial Officer and | Assistant Secretary | |||||||||
| Assistant Secretary | ||||||||||
| TELETECH INTERNATIONAL HOLDINGS, INC. | ||||||||||
By:
|
/s/ Xxxx X. Xxxxx, Xx.
|
|||||||||
| Xxxx X. Xxxxx, Xx. | ||||||||||
| Interim Chief Financial Officer and | ||||||||||
| Assistant Secretary | ||||||||||
SCHEDULE 1
| REVOLVING | ||||||||||||
| CREDIT | ||||||||||||
| COMMITMENT | COMMITMENT | |||||||||||
| LENDERS | PERCENTAGE | AMOUNT | MAXIMUM AMOUNT | |||||||||
KeyBank National Association |
28.89 | % | $ | 65,000,000 | $ | 65,000,000 | ||||||
Xxxxx Fargo Bank, N.A. |
13.33 | % | $ | 30,000,000 | $ | 30,000,000 | ||||||
Bank of America, N.A. |
13.33 | % | $ | 30,000,000 | $ | 30,000,000 | ||||||
JPMorgan Chase Bank, N.A. |
11.11 | % | $ | 25,000,000 | $ | 25,000,000 | ||||||
The Northern Trust Company |
8.89 | % | $ | 20,000,000 | $ | 20,000,000 | ||||||
Wachovia Bank, National
Association |
8.89 | % | $ | 20,000,000 | $ | 20,000,000 | ||||||
BNP Paribas |
8.89 | % | $ | 20,000,000 | $ | 20,000,000 | ||||||
Fifth Third Bank |
6.67 | % | $ | 15,000,000 | $ | 15,000,000 | ||||||
Total Commitment Amount |
100 | % | $ | 225,000,000 | $ | 225,000,000 | ||||||
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