Exhibit 10.1
FIRST AMENDMENT
FIRST AMENDMENT (this "Amendment"), dated as of June 30, 2001, among SITEL
CORPORATION, a Minnesota corporation (the "US Borrower"), SITEL EUROPE LIMITED
(f/k/a Sitel Europe PLC), a company incorporated under the laws of England (the
"English Borrower"), SITEL IRELAND LIMITED (f/k/a SITEL TMS LIMITED), a company
incorporated under the laws of Ireland (the "Irish Borrower"), the lenders party
to the Credit Agreement referred to below (the "Lenders"), and BANKERS TRUST
COMPANY, as Administrative Agent (the "Administrative Agent"). All capitalized
terms used herein and not otherwise defined herein shall have the respective
meanings provided such terms in the Credit Agreement referred to below.
W I T N E S S E T H :
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WHEREAS, the Borrowers, the Lenders and the Administrative Agent are
parties to a Credit Agreement, dated as of April 11, 2000 (the "Credit
Agreement");
WHEREAS, the US Borrower has requested the Lenders to amend and/or waive,
and the Lenders have agreed to amend and/or waive, certain provisions of the
Credit Agreement on the terms and conditions set forth herein; and
WHEREAS, the parties hereto wish to amend and/or waive the Credit Agreement
on the terms and conditions set forth herein;
NOW, THEREFORE, it is agreed:
1. The Lenders hereby waive any Events of Default that have arisen under
the Credit Agreement (before giving effect to this Amendment) solely as a result
of the US Borrower's failure to be in compliance with (i) Sections 9.08, 9.09
and 9.10 of the Credit Agreement for the Test Period ended on June 30, 2001 and
(ii) in the case of Section 9.09, also for the period from July 1, 2001 through
August 3, 2001.
2. Section 3.04 of the Credit Agreement is hereby deleted in its entirety.
3. Section 8.01 of the Credit Agreement is hereby amended by inserting the
following new clauses (j) and (k) at the end thereof:
"(j) Receivables Audit. No later than September 30, 2001, an accounts
receivable audit of the receivables of the US Borrower and its Subsidiaries
as of June 30, 2001 prepared by an independent accounting firm reasonably
acceptable to the Administrative Agent.
(k) Capacity Utilization Reports. Within 45 days after the close of
each fiscal quarter of the US Borrower, a certificate of a Senior Financial
Officer of the US Borrower
certifying as to the capacity utilization information for the respective
centers of the US Borrower and its Subsidiaries on a regional basis as at
the end of such fiscal quarter."
4. Section 8.14 of the Credit Agreement is hereby amended by inserting the
following new clause (e) at the end thereof:
"(e) Notwithstanding anything to the contrary contained in this
Section 8.14 or elsewhere in this Agreement, neither the US Borrower nor
any of its Wholly-Owned Subsidiaries may make a Permitted Acquisition where
any portion of the consideration therefor consists of cash (including,
without limitation, (I) any Indebtedness assumed, incurred or issued in
connection therewith and (II) any amount paid or to be paid pursuant to any
earn-out, non-compete or deferred compensation or purchase price
arrangements) without first obtaining the prior written consent of the
Required Lenders."
5. Section 9.03(iii) of the Credit Agreement is hereby amended to read in
its entirety as follows:
"(iii) so long as there shall exist no Default or Event of Default (both
before and after giving effect to the payment thereof), the US Borrower may
make cash Restricted Payments so long as the aggregate amount of all
Restricted Payments made subsequent to the Effective Date pursuant to this
clause (iii) does not exceed the remainder of (A) the sum of (I)
$1,000,000, plus (II) 100% of the aggregate Net Equity Proceeds received by
the US Borrower from any Person (other than a Subsidiary of the US
Borrower) from the issuance and sale subsequent to the Effective Date and
on or prior to the date the Restricted Payment occurs (the "Restricted
Payment Reference Date") of common stock and/or Qualified Preferred Stock
of the US Borrower, plus (III) without duplication of any amounts included
in preceding clause (II), 100% of the aggregate Net Equity Proceeds of any
equity contribution received by the US Borrower from a holder of the US
Borrower's common stock (other than from a Subsidiary of the US Borrower)
subsequent to the Effective Date and on or prior to the Restricted Payment
Reference Date minus (B) any amounts referred to in preceding clauses (II)
and (III) to the extent that such amounts are used to make Investments
pursuant to Section 9.05(xiv)."
6. Section 9.04(iv) of the Credit Agreement is hereby amended by deleting
the amount "$40,000,000" appearing therein and inserting the amount
"$25,000,000" in lieu thereof.
7. Section 9.05(xiv) of the Credit Agreement is hereby amended to read in
its entirety as follows:
"(xiv) so long as no Default or Event of Default then exists or would
result therefrom, the US Borrower and its Subsidiaries may make additional
Investments so long as the aggregate amount of all such Investments made
subsequent to the Effective Date and outstanding at any time (determined
without regard to any write-downs or write-offs thereof) pursuant to this
clause (xiv) does not exceed the remainder of (A) the sum of (I)
$5,000,000, plus (II) 100% of the aggregate Net Equity Proceeds received by
the US Borrower from any Person (other than a Subsidiary of the US
Borrower) from the
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issuance and sale subsequent to the Effective Date and on or prior to the
date the Investment occurs (the "Investment Reference Date") of common
stock and/or Qualified Preferred Stock of the US Borrower, plus (III)
without duplication of any amounts included in preceding clause (II), 100%
of the aggregate Net Equity Proceeds of any equity contribution received by
the US Borrower from a holder of the US Borrower's stock (other than from a
Subsidiary of the US Borrower) subsequent to the Effective Date and on or
prior to the Investment Reference Date, plus (IV) in any fiscal year of the
US Borrower (commencing with its fiscal year beginning on January 1, 2001),
an amount equal to the Additional Investment Basket Amount for such fiscal
year minus (B) the sum of (I) any amounts referred to in preceding clauses
(A)(II) and (A)(III) to the extent that such amounts are used to make
Restricted Payments pursuant to Section 9.03(iii) plus (II) any portion of
the Additional Investment Basket Amount that is used to make Capital
Expenditures pursuant to Section 9.07(b) in the respective fiscal year,
provided that in the case of any such Investment of $2,500,000 or more that
is made in any Person that is not then a Subsidiary of the US Borrower (a
"Designated Investment"), at least 10 Business Days prior to the making of
any such Investment, the US Borrower shall deliver to the Administrative
Agent and each of the Lenders a certificate of a Senior Financial Officer
of the US Borrower certifying (and showing the calculations therefor in
reasonable detail) that the US Borrower would have been in compliance with
the financial covenants set forth in Sections 9.08, 9.09 and 9.10 for the
respective Calculation Period, in each case with such financial covenants
to be determined on a Pro Forma Basis as if such Investment (as well as all
other Designated Investments and Permitted Acquisitions theretofore
consummated after the first day of such Calculation Period) had been made
on the first day of such Calculation Period; and"
8. Section 9.07(a) of the Credit Agreement is hereby amended by deleting
the table appearing therein and inserting the following new table in lieu
thereof:
"Fiscal Year Ending Amount
------------------ ------
December 31, 2001 $42,000,000
December 31, 2002 $32,000,000
December 31, 2003 $32,000,000".
9. Section 9.08 of the Credit Agreement is hereby amended by deleting the
table appearing therein and inserting the following new table in lieu thereof:
"Fiscal Quarter Ending Ratio
---------------------- -----
September 30, 2001 4.25:1.00
December 31, 2001 4.25:1.00
March 31, 2002 4.25:1.00
June 30, 2002 4.25:1.00
September 30, 2002 4.25:1.00
December 31, 2002 4.25:1.00
March 31, 2003 5.50:1.00".
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10. Section 9.09 of the Credit Agreement is hereby amended by deleting the
table appearing therein and inserting the following new table in lieu thereof:
"Period Ratio
------- -----
First Amendment Effective Date
through and including March 30, 2003 2.50:1.00
March 31, 2003 and thereafter 2.00:1.00".
11. Section 9.10 of the Credit Agreement is hereby amended by deleting the
table appearing therein and inserting the following new table in lieu thereof:
"Fiscal Quarter Ending On Amount
------------------------- ------
September 30, 2001 $14,300,000
December 31, 2001 $13,800,000
March 31, 2002 $47,600,000
June 30, 2002 $53,000,000
September 30, 2002 $53,000,000
December 31, 2002 $53,000,000
March 31, 2003 $60,000,000".
12. The definition of "Applicable Commitment Commission Percentage"
appearing in Section 11.01 of the Credit Agreement is hereby deleted and the
following new definition of "Applicable Commitment Commission Percentage" is
inserted in lieu thereof:
"Applicable Commitment Commission Percentage" shall mean 1% per annum.
13. The definition of "Applicable Margin" appearing in Section 11.01 of the
Credit Agreement is hereby deleted and the following new definition of
"Applicable Margin" is inserted in lieu thereof:
"Applicable Margin" shall mean, with respect to Revolving Loans and
Swingline Loans, from and after any Start Date to and including the
corresponding End Date, the respective percentage per annum set forth below
under the respective Type of Revolving Loans or Swingline Loans and
opposite the respective Level (i.e., Xxxxx 0, Xxxxx 0, Xxxxx 0 or Level 4,
as the case may be) indicated to have been achieved on the applicable Test
Date for such Start Date (as shown on the respective officer's certificate
delivered pursuant to Section 8.01(e) or the first proviso below):
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Level Leverage Ratio Base Rate Loans Euro Rate Loans
----- -------------- --------------- ---------------
1 Less than or equal to
1.50:1.00 1.00% 2.00%
2 Greater than 1.50:1.00
but less than or equal
to 1.75:1.00 1.25% 2.25%
3 Greater than 1.75:1.00
but less than or equal
to 2.00:1.00 1.50% 2.50%
4 Greater than 2.00:1.00 1.75% 2.75%
provided, however, that if the US Borrower fails to deliver the
financial statements required to be delivered pursuant to Section 8.01(a)
or (b) (accompanied by the officer's certificate required to be delivered
pursuant to Section 8.01(e) showing the applicable Leverage Ratio on the
relevant Test Date) on or prior to the respective date required by such
Sections, then Level 4 pricing shall apply until such time, if any, as the
financial statements required as set forth above and the accompanying
officer's certificate have been delivered showing the pricing for the
respective Margin Reduction Period is at a level which is less than Level 4
(it being understood that, in the case of any late delivery of the
financial statements and officer's certificate as so required, any
reduction in the Applicable Margin shall apply only from and after the date
of the delivery of the complying financial statements and officer's
certificate); provided further, that (i) for any period prior to August 3,
2001, the Applicable Margin shall be determined on the basis of this
definition prior to giving effect to the First Amendment and (ii) Level 4
pricing shall apply at any time when any Default or Event of Default is in
existence.
14. The definition of "Consolidated EBITDA" appearing in Section 11.01 of
the Credit Agreement is hereby deleted and the following new definition of
"Consolidated EBITDA" is inserted in lieu thereof:
"Consolidated EBITDA" shall mean, for any period, Consolidated EBIT
for such period, adjusted by adding thereto the amount of all amortization
of intangibles and depreciation that were deducted in arriving at
Consolidated EBIT for such period (including deferred financing, legal and
accounting costs associated with the Existing Credit Agreement, the Senior
Subordinated Notes and this Agreement), but determined without giving
effect to up to an aggregate of $30,000,000 of asset impairment and
restructuring expenses taken by the US Borrower in its fiscal quarters
ended June 30, 2001 and September 30, 2001 in
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each case to the extent that such asset impairment and restructuring
expenses otherwise reduced Consolidated EBITDA for such period; it being
understood that in determining the Leverage Ratio only, Consolidated EBITDA
for any period shall be calculated on a Pro Forma Basis to give effect to
any Person or assets acquired during such period pursuant to a Permitted
Acquisition and/or a Designated Investment and not subsequently sold or
otherwise disposed of by the US Borrower or any of its Subsidiaries during
such period.
15. The definition of "Final Maturity Date" appearing in Section 11.01 of
the Credit Agreement is hereby deleted and the following new definition of
"Final Maturity Date" is inserted in lieu thereof:
"Final Maturity Date" shall mean April 11, 2003.
16. The definition of "Test Period" appearing in Section 11.01 of the
Credit Agreement is hereby deleted and the following new definition of "Test
Period" is inserted in lieu thereof:
"Test Period" shall mean, at any time, each period of four consecutive
fiscal quarters of the US Borrower then last ended (in each case taken as
one accounting period); provided, however, for purposes of calculating
compliance with Section 9.10 only for the periods ending September 30, 2001
and December 31, 2001, Test Period shall mean the fiscal quarter of the US
Borrower ending September 30, 2001 or December 31, 2001, as the case may be
(in each case taken as one accounting period).
17. Section 11.01 of the Credit Agreement is hereby further amended by
inserting the following new definitions in the appropriate alphabetical order:
"First Amendment" shall mean the First Amendment, dated as of June 30,
2001, to this Agreement.
"First Amendment Effective Date" shall have the meaning provided in
the First Amendment.
18. On August 3, 2001, the Total Revolving Loan Commitment shall be
permanently reduced from $75,000,000 to $50,000,000 (as the same may be further
reduced from time to time in accordance with the Credit Agreement), with such
reduction to apply proportionately to permanently reduce the Revolving Loan
Commitment of each RL Lender.
19. In order to induce the Lenders to enter into this Amendment, each
Borrower hereby represents and warrants that (i) the representations and
warranties contained in Section 7 of the Credit Agreement are true and correct
in all material respects on and as of the First Amendment Effective Date and
August 3, 2001, after giving effect to this Amendment (it being understood and
agreed that any representation or warranty which by its terms is made as of a
specified date shall be required to be true and correct in all material respects
only as of such specified date), and (ii) there exists no Default or Event of
Default on the First Amendment Effective Date and August 3, 2001, after giving
effect to this Amendment.
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20. In order to further induce the Lenders to enter into this Amendment,
the US Borrower hereby agrees to pay to each Lender which executes and delivers
to the Administrative Agent a counterpart of this Amendment on or before 5:30
p.m. (New York time) on August 3, 2001, an amendment fee equal to .50% of such
Lender's Revolving Loan Commitment on August 3, 2001 (determined after giving
effect to the reduction thereof as provided in Section 18 of this Amendment),
with such fee to be earned on August 3, 2001 and payable on the Business Day
immediately thereafter.
21. This Amendment is limited as specified and shall not constitute a
modification, acceptance or waiver of any other provision of the Credit
Agreement or any other Credit Document.
22. This Amendment may be executed in any number of counterparts and by the
different parties hereto on separate counterparts, each of which counterparts
when executed and delivered shall be an original, but all of which shall
together constitute one and the same instrument. A complete set of counterparts
shall be lodged with the US Borrower and the Administrative Agent.
23. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF
NEW YORK.
24. This Amendment shall become effective as of June 30, 2001 (the "First
Amendment Effective Date") on the date when each Borrower, each other Credit
Party and the Required Lenders shall have signed a counterpart hereof (whether
the same or different counterparts) and shall have delivered (including by way
of facsimile transmission) the same to the Administrative Agent at the Notice
Office.
25. From and after the First Amendment Effective Date, all references in
the Credit Agreement and each of the Credit Documents to the Credit Agreement
shall be deemed to be references to the Credit Agreement as amended hereby.
* * *
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IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of
this Amendment to be duly executed and delivered as of the date first above
written.
SITEL CORPORATION
By: /s/ Xxxxx X. Xxxxxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Chief Financial Officer
SITEL EUROPE LIMITED
By: /s/ Xxxxx X. Xxxxxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Director
SITEL IRELAND LIMITED
By: /s/ Xxxxx X. Xxxxxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Attorney
BANKERS TRUST COMPANY,
Individually and as Administrative Agent
By:/s/ Xxxxx X. Le Fevre
-------------------------------------
Name: Xxxxx X. Le Fevre
Title: Director
BANK OF AMERICA, N.A.
By:/s/ Xxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President
FIRST UNION NATIONAL BANK
By: /s/ Xxxxxxxxx Xxxxx
------------------------------------
Name: Xxxxxxxxx Xxxxx
Title: Vice President
US BANK NATIONAL ASSOCIATION
By:/s/ Xxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
BANK ONE, N.A.
By:/s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
Acknowledged and Agreed
to as of the date written above:
SITEL CONSULTING LIMITED,
SIGNED by SITEL CONSULTING
LIMITED acting by its Attorney
By /s/ Xxxxx X. Xxxxxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Attorney
XXXXXXXXX AND XXXXXXXXX LIMITED,
SIGNED by XXXXXXXXX AND RONCORONI LIMITED
acting by its Attorney
By:/s/ Xxxxx X. Xxxxxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Attorney
THE TRAINING WORKS LIMITED, SIGNED
by THE TRAINING WORKS LIMITED
acting by its Attorney
By:/s/ Xxxxx X. Xxxxxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Attorney
SITEL KINGSTON LIMITED,
SIGNED by SITEL KINGSTON LIMITED
acting by its Attorney
By:/s/ Xxxxx X. Xxxxxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Attorney
SITEL MOOR PARK LIMITED,
SIGNED by SITEL MOOR PARK LIMITED
acting by its Attorney
By:/s/ Xxxxx X. Xxxxxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Attorney
SITEL STRATFORD LIMITED,
SIGNED by SITEL STRATFORD LIMITED
acting by its Attorney
By: /s/ Xxxxx X. Xxxxxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Attorney
SITEL UK LIMITED, SIGNED
by SITEL UK LIMITED
acting by its Attorney
By:/s/ Xxxxx X. Xxxxxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Attorney
B'S TELEMARKETING LIMITED,
SIGNED by B'S TELEMARKETING LIMITED
acting by its Attorney
By:/s/ Xxxxx X. Xxxxxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Attorney
SITEL KINGSTON (SERVICES) LIMITED,
SIGNED by SITEL KINGSTON (SERVICES) LIMITED
acting by its Attorney
By:/s/ Xxxxx X. Xxxxxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Attorney
SITEL MOOR PARK (SERVICES) LIMITED,
SIGNED by SITEL MOOR PARK (SERVICES) LIMITED
acting by its Attorney
By:/s/ Xxxxx X. Xxxxxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Attorney
SITEL STRATFORD (SERVICES) LIMITED,
SIGNED by SITEL STRATFORD (SERVICES) LIMITED
acting by its Attorney
By:/s/ Xxxxx X. Xxxxxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Attorney
SITEL IBERICA TELESERVICES, S.A.,
SIGNED by SITEL IBERICA TELESERVICES, S.A.
acting by its attorney-in-fact
By:/s/ Xxxxx X. Xxxxxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Attorney
TELEACTION HISPANICA, S.A.,
SIGNED by TELEACTION HISPANICA, S.A.
acting by its attorney-in-fact
By:/s/ Xxxxx X. Xxxxxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Attorney
TELEPROMOTION S.A.,
SIGNED by TELEPROMOTION S.A.
acting by its attorney-in-fact
By:/s/ Xxxxx X. Xxxxxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Attorney
NATIONAL ACTION FINANCIAL SERVICES, INC.
By:/s/ Xxxxx X. Xxxxxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Director
FINANCIAL INSURANCE SERVICES, INC.
By:/s/ Xxxxx X. Xxxxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: President
SEEK THE GEEK, INC.
By:/s/ Xxxxx X. Xxxxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: President
SITEL INSURANCE MARKETING SERVICES, INC.
By:/s/ Xxxxx X. Xxxxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Attorney
SITEL INSURANCE SERVICES, INC.
By:/s/ Xxxxx X. Xxxxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: President
SITEL INTERNATIONAL LLC
By:/s/ Xxxxx X. Xxxxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Chief Financial Officer of SITEL Corporation,
the sole member of SITEL International LLC
SITEL MEXICO HOLDINGS LLC
By: SITEL (BVI) International Inc.,
the sole member of SITEL Mexico Holdings LLC
By: SITEL International LLC,
the sole director of SITEL (BVI) International, Inc.
By:/s/ Xxxxx X. Xxxxxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Chief Financial Officer of SITEL Corporation,
the sole member of SITEL International LLC
SITEL CUSTOMER CARE, INC.
By:/s/ Xxxxx X. Xxxxxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Authorized Person
SITEL TELESERVICES CANADA INC.
By:/s/ Xxxxx X. Xxxxxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
SITEL BELGIUM NV,
Signed by SITEL BELGIUM NV acting
by its Attorney
By:/s/ Xxxxx X. Xxxxxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Attorney
