EXHIBIT 10.11
APAC CUSTOMER SERVICES, INC.
FOURTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
This Fourth Amendment to Amended and Restated Credit Agreement (herein,
the "AMENDMENT") is entered into as of January 20, 2000, between APAC Customer
Services, Inc., an Illinois corporation (the "BORROWER"), the Banks party to the
Credit Agreement (as such term is defined below) and Xxxxxx Trust and Savings
Bank, as a Bank and in its capacity as agent under the Credit Agreement (the
"AGENT").
PRELIMINARY STATEMENTS
A. The Borrower and the Banks entered into a certain Amended and
Restated Credit Agreement, dated as of September 8, 1998 (as amended, the
"CREDIT AGREEMENT"). All capitalized terms used herein without definition shall
have the same meanings herein as such terms have in the Credit Agreement.
B. The Borrower has requested that the Banks decrease the size of the
Revolving Credit Commitments, amend certain covenants, and make certain other
amendments to the Credit Agreement, and the Banks party hereto are willing to do
so under the terms and conditions set forth in this Amendment.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
SECTION 1. REVOLVING CREDIT COMMITMENTS.
Upon the execution of this amendment by the Borrower, the Agent and the
Required Banks, the Revolving Credit Commitments shall be reduced to $50,000,000
(comprised of $40,000,000 in Available Revolving Credit Commitments and an
aggregate of $10,000,000 in Standby Revolving Credit Commitments). Accordingly,
the amount of each Bank's Revolving Credit Commitment set forth opposite its
name on its signature page to the Credit Agreement (or on an assignment
agreement pursuant to Section 12.12 of the Credit Agreement, as the case may be)
shall be amended so as to reflect such Bank's Available Revolving Credit
Commitment and its Standby Revolving Credit Commitment as follows:
AMOUNT OF AMOUNT OF
AMOUNT OF AVAILABLE STANDBY
REVOLVING CREDIT REVOLVING CREDIT REVOLVING CREDIT
BANK COMMITMENT COMMITMENT COMMITMENT
Xxxxxx Trust and Savings Bank $6,666,500.00 $5,333,200.00 $1,333,300.00
Bank of Montreal $6,666,500.00 $5,333,200.00 $1,333,300.00
Bank of America, National Association $6,666,500.00 $5,333,200.00 $1,333,300.00
LaSalle National Bank $6,666,500.00 $5,333,200.00 $1,333,300.00
The Northern Trust Company $3,333,500.00 $2,666,800.00 $ 666,700.00
Firstar Bank Milwaukee, N.A. $4,444,500.00 $3,555,600.00 $ 888,900.00
Mercantile Bank National Association $4,444,500.00 $3,555,600.00 $ 888,900.00
The Fuji Bank, Limited $3,333,500.00 $2,666,800.00 $ 666,700.00
The Bank of Nova Scotia $3,333,500.00 $2,666,800.00 $ 666,700.00
U.S. Bank National Association $4,444,500.00 $3,555,600.00 $ 888,900.00
Total $50,000,000.00 $40,000,000.00 $10,000,000.00
============== ============== ==============
SECTION 2. AMENDMENTS
Upon the execution of this Amendment by the Borrower, the Guarantors,
the Agent and the Required Banks, the Credit Agreement shall be and hereby is
amended as follows:
(a) Section 2.4 of the Credit Agreement shall be amended by (i)
deleting the second reference to "$5,000,000" appearing in the first sentence of
such Section and inserting "$1,000,000" in lieu thereof, (ii) deleting the first
reference to "$75,000,000" appearing in clause (iv) of the fourth sentence of
such Section and inserting "$60,000,000" in lieu thereof and (iii) deleting the
text "(PROVIDED THAT if EBITDA for the then four most recently completed fiscal
quarters of the Borrower is less than $75,000,000 but greater than $60,000,000,
the Borrower may only request that up to $15,000,000 of the aggregate Standby
Revolving Credit Commitments be activated)" appearing in clause (iv) of the
fourth sentence of such Section.
(b) The following definitions appearing in Section 5.1 of the Credit
Agreement shall be amended and restated in their entirety to read as follows,
and the following definitions not already appearing in such Section 5.1 shall be
added thereto as follows:
"CAPITAL EXPENDITURES" means, with respect to any Person the
aggregate amount of all expenditures (whether paid in cash or
accrued as a liability) by such Person during any period
which, in accordance with GAAP, are or should be included as
"additions to property, plant or equipment" or similar items
reflected in the statement of cash flows of such Person;
PROVIDED THAT Capital Expenditures shall not include such
expenditures incurred by the Borrower in an aggregate amount
not in excess of $9,000,000 in
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connection with the Borrower's purchase of certain software
and services from Siebel Systems, Inc.
"FOURTH AMENDMENT EFFECTIVE DATE" means
January 20, 2000.
"STANDBY REVOLVING CREDIT COMMITMENTS" means, as of
the Fourth Amendment Effective Date, $10,000,000, which
represents that portion of the Revolving Credit Commitments
unavailable on such date for borrowing but which may become
Available Revolving Credit Commitments pursuant to Section 2.4
hereof and thereafter $10,000,000 less such amounts, if any,
which have become Available Revolving Credit Commitments
pursuant to Section 2.4 hereof or terminated pursuant to
Section 1.14 hereof.
(c) Section 8.22 of the Credit Agreement shall be amended and restated
in its entirety to read as follows:
"SECTION 8.22. TOTAL DEBT RATIO. As of the last day
of each fiscal quarter of the Borrower ending on or about one
of the periods specified below, the Borrower shall not permit
the Total Debt Ratio as of the last day of such fiscal quarter
to be greater than or equal to the amount set forth below:
TOTAL DEBT RATIO
SHALL NOT BE
FROM AND TO AND GREATER THAN OR
INCLUDING INCLUDING EQUAL TO
10/4/1999 7/2/2000 2.75 to 1.0
7/3/2000 7/1/2001 2.50 to 1.0
7/2/2001 6/30/2002 2.25 to 1.0
7/1/2002 6/29/2003 2.00 to 1.0"
(d) Section 8.25 of the Credit Agreement shall be amended and restated
in its entirety to read as follows:
"SECTION 8.25. MINIMUM EBITDA. As of the last day of
each fiscal quarter of the Borrower ending on or about one of
the dates specified below, the Borrower shall maintain EBITDA
for the period of four consecutive fiscal quarters then ended
at not less than the amount set forth below:
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FISCAL QUARTER EBITDA SHALL NOT
ENDING BE LESS THAN
4/2/2000 $57,500,000
7/2/2000 $57,500,000
10/1/2000 $60,000,000
Each Fiscal Quarter $62,500,000"
Thereafter
(e) Section 8.28 of the Credit Agreement shall be amended and restated
in its entirety to read as follows:
"SECTION 8.28. INTENTIONALLY DELETED."
(f) Exhibit G to the Credit Agreement shall be amended and restated in
its entirety to read as set forth on Annex I hereto.
SECTION 3. CONDITIONS PRECEDENT.
This Amendment shall not become effective unless and until all of the
following conditions have been satisfied:
(a) The Borrower, the Guarantors, the Agent and the Required
Banks shall have executed and delivered this Amendment.
(b) The Agent shall have received (i) an amendment to the
Pledge Agreement (in form and substance satisfactory to the Agent) duly
executed by the Borrower and each relevant Subsidiary and evidencing
the Borrower's pledge of all of its capital stock or other equity
interests held in XxxxxxxxXxxxxxxxxx.xxx, Inc. and APAC M.I. Holdings,
Inc. (each, a "NEW SUBSIDIARY"), (ii) original stock certificates or
other similar instruments or securities representing all of the issued
and outstanding shares of capital stock or other equity interest of the
Borrower in each New Subsidiary as of the date hereof, (iii) stock
powers for the Collateral consisting of the stock or other equity
interests of the Borrower in each New Subsidiary each to be executed in
blank and undated and (iv) UCC statements of amendment to be filed
against the Borrower, as debtor, in favor of the Agent, as secured
party.
(c) The Agent shall have received the fees (for the account
of the relevant Banks) contemplated by that certain Fee Letter re:
Fourth Amendment dated as of January 14, 2000 from the Borrower to the
Banks.
(d) The Agent shall have received copies executed or
certified (as may be appropriate) of all legal documents or proceedings
taken in connection with the execution and delivery hereof and the
other instruments and documents contemplated hereby.
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(e) All legal matters incident to the execution and delivery
hereby and of the other instruments and documents contemplated hereby
shall be satisfactory to the Required Banks, the Agent and their
respective counsel.
SECTION 4. REPRESENTATIONS.
In order to induce the Required Banks to execute and deliver this
Amendment, the Borrower hereby represents to each Bank that as of the date
hereof, after giving effect to this Amendment, the representations and
warranties set forth in Section 6 of the Credit Agreement are and shall be and
remain true and correct (except that the representations contained in Section
6.5 shall be deemed to refer to the most recent financial statements of the
Borrower delivered to the Agent) and (i) the Borrower is in full compliance with
all of the terms and conditions of the Credit Agreement and (ii) no Default or
Event of Default has occurred and is continuing under the Credit Agreement.
SECTION 5. MISCELLANEOUS.
(a) The Borrower has heretofore executed and delivered to the Agent and
the Banks certain Collateral Documents and the Borrower hereby acknowledges and
agrees that, notwithstanding the execution and delivery of this Amendment, the
Collateral Documents remain in full force and effect and the rights and remedies
of the Agent and the Banks thereunder, the obligations of the Borrower
thereunder and the liens and security interests created and provided for
thereunder remain in full force and effect and shall not be affected, impaired
or discharged hereby. Nothing herein contained shall in any manner affect or
impair the priority of the liens and security interests created and provided for
by the Collateral Documents as to the indebtedness which would be secured
thereby prior to giving effect to this Amendment.
(b) Except as specifically amended herein or waived hereby, the Credit
Agreement shall continue in full force and effect in accordance with its
original terms. Reference to this specific Amendment need not be made in the
Credit Agreement, the Notes, or any other instrument or document executed in
connection therewith, or in any certificate, letter or communication issued or
made pursuant to or with respect to the Credit Agreement, any reference in any
of such items to the Credit Agreement being sufficient to refer to the Credit
Agreement as amended hereby.
(c) By executing this Amendment in the place provided for that purpose
below, each Guarantor hereby consents to the Amendment to the Credit Agreement
as set forth herein and confirms that its obligations under its Guaranty remain
in full force and effect. Each Guarantor further agrees that the consent of such
Guarantor to any further amendments to the Credit Agreement shall not be
required as a result of this consent having been obtained.
(d) The Borrower agrees to pay on demand all reasonable costs and
expenses of or incurred by the Agent in connection with the negotiation,
preparation, execution and delivery of this Amendment.
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(e) This Amendment may be executed in any number of counterparts, and
by the different parties on different counterpart signature pages, all of which
taken together shall constitute one and the same agreement. Any of the parties
hereto may execute this Amendment by signing any such counterpart and each of
such counterparts shall for all purposes be deemed to be an original. This
Amendment shall be governed by the internal laws of the State of Illinois.
[SIGNATURE PAGES TO FOLLOW]
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Dated as of January 20, 2000.
APAC CUSTOMER SERVICES, INC.
By:
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Name:
----------------------------------------
Title:
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Accepted and agreed to as of the date and year last above written.
XXXXXX TRUST AND SAVINGS BANK, in its
individual capacity as a Bank and as Agent
By:
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Name:
----------------------------------------
Title:
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BANK OF MONTREAL, in its individual capacity
as a Bank and as Syndication Agent
By:
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Name:
----------------------------------------
Title:
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BANK OF AMERICA, NATIONAL ASSOCIATION
By:
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Name:
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Title:
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LASALLE BANK NATIONAL ASSOCIATION
By:
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Name:
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Title:
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THE NORTHERN TRUST COMPANY
By:
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Name:
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Title:
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FIRSTAR BANK MILWAUKEE, N.A.
By:
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Name:
----------------------------------------
Title:
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MERCANTILE BANK NATIONAL ASSOCIATION
By:
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Name:
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Title:
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THE FUJI BANK, LIMITED
By:
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Name:
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Title:
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THE BANK OF NOVA SCOTIA
By:
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Name:
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Title:
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U.S. BANK NATIONAL ASSOCIATION
By:
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Name:
----------------------------------------
Title:
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GUARANTORS' CONSENT
The undersigned have heretofore executed and delivered to the
Guaranteed Creditors (as defined in the Guaranty) a Guaranty Agreement dated May
20, 1998 (the "GUARANTY") and hereby consent to the Amendment to the Credit
Agreement as set forth above and confirms that their Guaranty and all of the
undersigned's obligations thereunder remain in full force and effect. The
undersigned further agree that the consent of the undersigned to any further
amendments to the Credit Agreement shall not be required as a result of this
consent having been obtained, except to the extent, if any, required by the
Guaranty referred to above.
APAC TELESERVICES OF TEXAS, L.P.
By: APAC TELESERVICES GENERAL
PARTNER, INC., its General Partner
By
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Name
----------------------------------
Title
---------------------------------
APAC TELESERVICES GENERAL PARTNER,
INC.
By
Name
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Title
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ITI HOLDINGS, INC.
By
Name
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Title
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ITI MARKETING SERVICES, INC.
By
Name
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Title
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APAC TELESERVICES, L.L.C.
By: APAC CUSTOMER SERVICES, INC., its
Manager
By
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Name
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Title
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ANNEX I
EXHIBIT G
COMPLIANCE CERTIFICATE FOR
APAC CUSTOMER SERVICES, INC.
This Compliance Certificate is furnished to Xxxxxx Trust and Savings
Bank, as Agent (the "AGENT") pursuant to that certain Amended and Restated
Credit Agreement dated as of September 8, 1998, among APAC Customer Services,
Inc. (the "BORROWER"), Xxxxxx Trust and Savings Bank, as Agent, and the Banks
party thereto (as amended, the "CREDIT AGREEMENT"). Unless otherwise defined
herein, the terms used in this Compliance Certificate have the meanings ascribed
thereto in the Credit Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the duly elected _____________________________________
of the Borrower;
2. I have reviewed the terms of the Credit Agreement and I
have made, or have caused to be made under my supervision, a detailed
review of the transactions and conditions of the Borrower and its
Subsidiaries during the accounting period covered by the attached
financial statements;
3. The examinations described in paragraph 2 did not disclose,
and I have no knowledge of, the existence of any condition or the
occurrence of any event which constitutes a Default or Event of Default
during or at the end of the accounting period covered by the attached
financial statements or as of the date of this Certificate, except as
set forth below; and
4. The Attachment hereto sets forth financial data and
computations evidencing the Borrower's compliance with certain
covenants of the Credit Agreement, all of which data and computations
are, to the best of my knowledge, true, complete and correct and have
been made in accordance with the relevant Sections of the Credit
Agreement.
Described below are the exceptions, if any, to paragraph 3 by listing,
in detail, the nature of the condition or event, the period during which it has
existed and the action which the Borrower has taken, is taking, or proposes to
take with respect to each such condition or event:
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
The foregoing certifications, together with the computations set forth
in the Attachment hereto and the financial statements delivered with this
Certificate in support hereof, are made and delivered this _________ day of
__________________ 20___.
APAC CUSTOMER SERVICES, INC.
By
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--------------------------,----------------
(Name) (Title)
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ATTACHMENT TO COMPLIANCE CERTIFICATE
FOR
APAC CUSTOMER SERVICES, INC.
Compliance Calculations for Amended and Restated Credit Agreement
Dated as of September 8, 1998
Calculations as of _____________, 20___
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A. TOTAL DEBT RATIO (SECTION 8.22 OF THE AGREEMENT)
1. Total Funded Debt (as defined) $_______________
A1
2. Net Income (as defined) for the four fiscal quarters $_______________
then ended A2
3. Interest Expense (as defined) for the same period $_______________
A3
4. Federal, state and local income taxes for the same $_______________
period A4
5. Deprecation of fixed assets for the same period $_______________
A5
6. Amortization for the same period $_______________
A6
7. Add Lines A2-A6 (EBITDA) $_______________
A7
8. Ratio of Line A1 to A7 _____ : 1.0
9. Line A8 Ratio must be less than or equal to:
Total Debt Ratio Shall
From and Including To and Including Not Be Greater Than:
------------------ ---------------- --------------------
10/4/1999 7/2/2000 2.75 to 1.0
7/3/2000 7/1/2001 2.50 to 1.0
7/2/2001 6/30/2002 2.25 to 1.0
7/1/2002 6/29/2003 2.00 to 1.0
10. Is Borrower in Compliance? (Circle Yes or No) Yes / No
B. NET WORTH (SECTION 8.23 OF THE AGREEMENT)
1. Shareholders' Equity $____________
minus
(i) Notes from Officers and Employees ($__________)
(ii) Write-up of Assets
($__________)
Net Worth
$____________
B1
2. Net Income (Line A2) $___________
B2
3. Line B2 x .80 $___________
B3
4. Add Line B3 + $35,000,000 $___________
B4
5. Line B1 must be greater than or equal to Line B4
6. Is Borrower in Compliance? (Circle Yes or No) Yes / No
C. FIXED CHARGE COVERAGE RATIO (SECTION 8.24 OF THE AGREEMENT)
1. EBITDA (Line A7) $_______________
C1
2. Capital Expenditures (as defined) for the same period $_______________
C2
3. Subtract Line C2 from C1 $_______________
C3
4. Principal payments due in the next 12 months $_______________
C4
5. Annualized Interest Expense (as defined) for the same period $_______________
C5
6. Add Lines C4+C5 $_______________
C6
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7. Ratio of Line C3 to Line C6 _____ : 1.0
8. Line C7 ratio must be greater than or equal to: 1.50 : 1.0
9. Is Borrower in Compliance? (Circle Yes or No) Yes/No
D. EBITDA (SECTION 8.25 OF THE AGREEMENT)
1. EBITDA (Line A7) $________
D1
2. Line D1 must be greater than or equal to:
EBITDA Shall
For Four Fiscal Quarters Not Be Less Than:
------------------------ -----------------
Ending On
---------
4/2/2000 $57,500,000
7/2/2000 $57,500,000
10/1/2000 $60,000,000
Each Fiscal Quarter $62,500,000
Thereafter
3. Is Borrower in Compliance? (Circle Yes or No) Yes/No
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