EXHIBIT 10.47
FIRST AMENDMENT TO AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT AND WAIVER
This First Amendment to Amended and Restated Revolving Credit Agreement and
Waiver (this "AMENDMENT") is entered into as of December 14, 2000, among
TeleTech Holdings, Inc., a Delaware corporation (the "COMPANY"), the several
financial institutions from time to time party to the Credit Agreement (as
defined herein) (collectively, the "LENDERS"; individually, a "LENDER"), and
Bank of America, N.A., as agent for the Lenders (in such capacity, the
"ADMINISTRATIVE AGENT").
RECITALS:
WHEREAS, the Company, the Lenders, the Administrative Agent and the
Co-Agents named therein have entered into that certain Amended and Restated
Revolving Credit Agreement dated as of March 24, 2000 (as heretofore amended and
as the same may be further amended or modified from time to time, the "CREDIT
AGREEMENT");
WHEREAS, the Company, the Lenders and the Administrative Agent have
determined that the Credit Agreement should be amended in certain respects and
to make certain other changes agreed to by the parties; and
WHEREAS, the Company has requested a waiver of, and the undersigned Lenders
wish to waive, certain provisions of the Credit Agreement on the terms and
conditions set forth below;
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. DEFINITIONS. Capitalized terms used but not otherwise defined herein
shall have the meanings ascribed to such terms in the Credit Agreement.
2. AMENDMENTS TO CREDIT AGREEMENT. The Credit Agreement is hereby amended,
effective on the date this Amendment becomes effective in accordance with
SECTION 4 hereof, as follows:
(a) The definition of "Tranche A Loan Limit" set forth in Section 1.01
of the Credit Agreement is amended and restated in its entirety to read as
follows:
"TRANCHE A LOAN LIMIT" means $0.
(b) Subsection 8.05(e) of the Credit Agreement is amended and restated
in its entirety to read as follows:
(e) Indebtedness consisting of Synthetic Lease Obligations incurred by
Services (i) pursuant to that certain Participation Agreement dated as of
March 1, 2000, among the Company, Services, State Street Bank and Trust
Company of Connecticut, First Security Bank, National Association, and the
Persons named as certificate holders and lenders in the schedules attached
thereto, as amended,
supplemented or modified from time to time in an amount not to exceed
$30,000,000 at any time on or prior to April 30, 2001, and (ii) pursuant to
a transaction satisfactory to the required lenders in an amount not to
exceed $50,000,000 at any time on or after May 1, 2001.
(c) Section 8.19 of the Credit Agreement is amended and restated in
its entirety to read as follows:
8.19 MAXIMUM COMBINATION OF CASH CAPITAL EXPENDITURES AND PERMITTED
ACQUISITIONS. The Company shall not permit the total amount of the sum of
(a) Capital Expenditures PLUS (b) expenditures incurred to effect Permitted
Acquisitions, in each case made or committed to be made by the Company and
its Subsidiaries and paid for with consideration consisting of cash and
other property, to exceed $100,000,000 in any calendar year; PROVIDED, that
to the extent such sum in any calendar year is less than $100,000,000, the
$100,000,000 limit for the following calendar year shall be increased by
the amount of such shortfall; PROVIDED, FURTHER, the Company shall first
use the initial amount permitted for the current year (without regard to
the amount carried over from the previous calendar year, if any) and then
the amount carried over from the previous calendar year to meet the
requirements of this SECTION 8.19 and any carried over amount not so
utilized shall expire; and PROVIDED, FURTHER, that the Company may utilize
in calendar year 2000 an additional amount equal to $7,032,000 carried
forward from calendar year 1999 in accordance with the Prior Credit
Agreement.
(d) Schedule 2.01 to the Credit Agreement is deleted it in its
entirety and SCHEDULE 2.01 attached hereto and made a part hereof is
substituted in its place.
3. WAIVERS.
(a) The Administrative Agent and the undersigned Lenders hereby waive
any breach of Section 8.05(e) of the Credit Agreement for the period
beginning on the Effective Date and ending on April 30, 2001; PROVIDED,
HOWEVER, that during such period indebtedness consisting of
Synthetic Lease Obligations shall not exceed $72,000,000 at any time
outstanding.
(b) The Administrative Agent and the undersigned Lenders hereby waive
any breach of Section 8.05(f) of the Credit Agreement for the period
beginning on the Effective Date and ending on April 30, 2001; PROVIDED,
HOWEVER, that during such period the aggregate amount of Indebtedness
(other than Indebtedness permitted under Sections 8.05(a) through (e)
of the Credit Agreement) shall not exceed $32,000,000 at any time
outstanding.
4. CONDITIONS TO EFFECTIVENESS OF THIS AMENDMENT. This Amendment shall
become effective upon the satisfaction of the following conditions (the
"EFFECTIVE DATE"):
(a) EXECUTED AMENDMENT. Receipt by the Administrative Agent of duly
executed counterparts of this Amendment from the Company and all of the
Lenders;
-2-
(b) MISCELLANEOUS. Receipt by the Administrative Agent of such other
documents, certificates, instruments or opinions as may reasonably be
requested by it.
5. CERTAIN REPRESENTATIONS AND WARRANTIES BY THE COMPANY. In order to
induce the Lenders and the Administrative Agent to enter into this Amendment,
the Company represents and warrants to the Lenders and the Administrative Agent
that:
(a) AUTHORITY. The Company has the right, power and capacity and has
been duly authorized and empowered by all requisite corporate and
shareholder action to enter into, execute, deliver and perform this
Amendment and the Credit Agreement as amended hereby.
(b) VALIDITY. This Amendment and the Credit Agreement as amended
hereby have each been duly and validly executed and delivered by the
Company and constitutes its legal, valid and binding obligations,
enforceable against the Company in accordance with its respective terms,
except as enforcement thereof may be subject to the effect of any
applicable bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting creditors' rights generally and general principles of equity
(regardless of whether such enforcement is sought in a proceeding in equity
or at law or otherwise).
(c) NO CONFLICTS. The Company's execution, delivery and performance of
this Amendment and the Credit Agreement as amended hereby does not and will
not violate its Certificates or Articles of Incorporation or Bylaws, any
law, rule, regulation, order, writ, judgment, decree or award applicable to
the Company or any contractual provision to which the Company is party or
to which the Company or any of its Subsidiaries are subject.
(d) APPROVALS. No authorization or approval or other action by, and no
notice to or filing or registration with, any Governmental Authority or
regulatory body (other than those which have been obtained and are in force
and effect) is required in connection with the Company's execution,
delivery and performance of this Amendment and the Credit Agreement as
amended hereby.
(e) INCORPORATED REPRESENTATIONS AND WARRANTIES. All representations
and warranties contained in the Loan Documents are true and correct in all
material respects with the same effect as though such representations and
warranties had been made on and as of the date hereof and the effective
date hereof, except as to any representations or warranties which expressly
relate to an earlier date, in which event, such representations and
warranties are true as of such date.
(f) NO DEFAULTS. No Default or Event of Default exists as of the date
hereof or will exist after giving effect to this Amendment.
6. ASSUMPTION AGREEMENT OF NEW LENDER.
(a) ASSUMPTION AND ACCEPTANCE. The Northern Trust Company (the "NEW
LENDER") hereby (i) agrees that, from and after the Effective Date, it
shall become a "Lender" under the Credit Agreement and shall be obligated
to perform all of the
-3-
obligations of a Lender under the Credit Agreement (including without
limitation under Article II thereof), including the requirements concerning
confidentiality and the payment of indemnification and (ii) agrees that it
will perform in accordance with their terms all of the obligations which by
the terms of the Credit Agreement are required to be performed by it as a
Lender.
(b) INDEPENDENT CREDIT DECISION. The New Lender (i) acknowledges that
it has received a copy of the Credit Agreement and the Schedules and
Exhibits thereto, together with copies of the most recent financial
statements referred to in Section 7.01 of the Credit Agreement, and such
other documents and information as it has deemed appropriate to make its
own credit and legal analysis and decision to enter into this Amendment and
(ii) agrees that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its
own credit and legal decisions in taking or not taking action under the
Credit Agreement.
(c) ADMINISTRATIVE AGENT. The New Lender appoints and authorizes the
Administrative Agent to take such action as the Administrative Agent on its
behalf and to exercise such powers under the Credit Agreement as are
delegated to the Administrative Agent by the terms of the Credit Agreement.
(d) WITHHOLDING TAX. The New Lender (i) represents and warrants to the
Administrative Agent and the Company that under applicable law and treaties
no tax will be required to be withheld by the New Lender with respect to
any payments to be made to the New Lender hereunder, (ii) agrees to furnish
(if it is organized under the laws of any jurisdiction other than the
United States or any State thereof) to the Administrative Agent and the
Company prior to the time that the Administrative Agent or Company is
required to make any payment of principal, interest or fees hereunder,
duplicate executed originals of (A) either U.S. Internal Revenue Service
Form W-8ECI or U.S. Internal Revenue Service Form W-8BEN (wherein the New
Lender claims entitlement to the benefits of a tax treaty that provides for
a complete exemption from U.S. federal income withholding tax on all
payments hereunder) or (B) if such New Lender is claiming exemption from
U.S. federal withholding tax under Section 871(h) or 881(c) of the Code
with respect to payments of "portfolio interest", a Form W-8BEN or any
subsequent versions thereof or successors thereto and a certificate
representing that such New Lender is not a "bank" for purposes of Section
881(c) of the Code, and agrees to provide a new Form W-8BEN or W-8ECI upon
the expiration of any previously delivered form or comparable statements in
accordance with applicable U.S. law and regulations and amendments thereto,
duly executed and completed by the New Lender, and (iii) agrees to comply
with all applicable U.S. laws and regulations with regard to such
withholding tax exemption.
7. REALLOCATION OF PRO RATA SHARES; ASSIGNMENTS.
(a) PRO RATA SHARES. Pursuant to the terms of this Amendment, the New
Lender will enter into the Credit Agreement with Commitments in an
aggregate amount not to exceed $12,500,000, while the Commitments of the
other Lenders (individually, an
-4-
"ORIGINAL LENDER" and collectively, the "ORIGINAL LENDERS") will not be
increased. As a result thereof, the Pro Rata Share of the New Lender will
be the amount set forth on SCHEDULE 2.01, and the Pro Rata Shares of each
of the Original Lenders will be decreased to the amounts set forth on
SCHEDULE 2.01.
(b) ASSIGNMENT AND ASSUMPTION. In connection with the changes in Pro
Rata Shares, it is necessary for the Original Lenders to assign to the New
Lender and for the New Lender to assume certain of the outstanding Loans of
the Original Lenders necessary to provide that the outstanding Loans of
each Lender will be equal to such Lender's Pro Rata Share of all Loans. On
the Effective Date and upon receipt of the payments provided for herein,
each of the Original Lenders hereby sells, transfers and assigns to the New
Lender, without recourse and without representation or warranty (except as
provided herein), all of such Original Lender's rights, title and interest
arising under the Credit Agreement relating to all rights and obligations
with respect to such Original Lender's portion of the Loans as set forth on
ANNEX 1 attached hereto and made a part hereof (the "ASSIGNED LOANS").
Effective on the Effective Date, the New Lender hereby irrevocably
purchases, assumes and takes from each Original Lender, and each Original
Lender is hereby expressly and absolutely released from, all of such
Original Lender's obligations arising under the Credit Agreement relating
to the Assigned Loans.
(c) PAYMENT. In consideration of the assignment by each Original
Lender to the New Lender as set forth above, (i) the New Lender agrees to
pay to each Original Lender the principal amount of the Assigned Loans to
be transferred by such Original Lender to the New Lender hereunder, in
immediately available funds, at the Effective Date, and (b) the Company
agrees to pay to Original Lenders the accrued interest and any accrued
commitment fees under the Credit Agreement to the Effective Date on the
Assigned Loans, in immediately available funds, at the Effective Date. The
Company hereby acknowledges and agrees that pursuant to the provisions of
Section 4.04 of the Credit Agreement it will compensate each Original
Lender for any losses, expenses and liabilities of the type described in
Section 4.04 of the Credit Agreement resulting from the transactions
contemplated hereby. Amounts payable under the first two sentences of this
SECTION 7(c) shall be paid to the Administrative Agent for distribution to
the Original Lenders.
(d) EFFECTIVENESS. This Agreement shall become effective on the
Effective Date. No party hereto shall have any obligation hereunder prior
to the Effective Date. The New Lender recognizes and agrees that
notwithstanding anything to the contrary in this Agreement, the Original
Lenders shall retain all of their rights under the Credit Agreement for
periods prior to the Effective Date. The Company, by its execution hereof,
acknowledges the assignments and assumptions described above.
(e) REPRESENTATIONS AND WARRANTIES.
(i) Each Original Lender represents and warrants that (A) it is
the legal and beneficial owner of the interest being assigned by it
hereunder and that such interest is free and clear of any Lien or
other adverse claim; (B) it is duly organized and existing and it has
the full power and authority to take, and has
-5-
taken, all action necessary to execute and deliver this Amendment and any
other documents required or permitted to be executed or delivered by it in
connection with this Amendment and to fulfill its obligations hereunder;
(C) no notices to, or consents, authorizations or approvals of, any Person
are required (other than any already given or obtained) for its due
execution, delivery and performance of this Amendment, and apart from any
agreements or undertakings or filings required by the Credit Agreement, no
further action by, or notice to, or filing with, any Person is required of
it for such execution, delivery or performance; and (D) this Amendment has
been duly executed and delivered by it and constitutes the legal, valid and
binding obligation of such Original Lender, enforceable against such
Original Lender in accordance with the terms hereof, subject, as to
enforcement, to bankruptcy, insolvency, moratorium, reorganization and
other laws of general application relating to or affecting creditors'
rights and to general equitable principles.
(ii) No Original Lender makes any representation or warranty and
assumes any responsibility with respect to any statements, warranties
or representations made in or in connection with the Credit Agreement
or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Credit Agreement or any other instrument
or document furnished pursuant thereto. No Original Lender makes any
representation or warranty in connection with, and assumes no
responsibility with respect to, the solvency, financial condition or
statements of the Company, or the performance or observance by the
Company, of any of its respective obligations under the Credit
Agreement or any other instrument or document furnished in connection
therewith.
(iii) The New Lender represents and warrants that (A) it is duly
organized and existing and it has full power and authority to take,
and has taken, all action necessary to execute and deliver this
Amendment and any other documents required or permitted to be executed
or delivered by it in connection with this Amendment, and to fulfill
its obligations hereunder; (B) no notices to, or consents,
authorizations or approvals of, any Person are required (other than
any already given or obtained) for its due execution, delivery and
performance of this Amendment; and apart from any agreements or
undertakings or filings required by the Credit Agreement, no further
action by, or notice to, or filing with, any Person is required of it
for such execution, delivery or performance; (C) this Amendment has
been duly executed and delivered by it and constitutes the legal,
valid and binding obligation of the New Lender, enforceable against
the New Lender in accordance with the terms hereof, subject, as to
enforcement, to bankruptcy, insolvency, moratorium, reorganization and
other laws of general application relating to or affecting creditors'
rights and to general equitable principles; and (D) it is an Eligible
Assignee.
(f) ASSIGNMENT PERMITTED. To the extent necessary, Section 11.08 of
the Credit Agreement is hereby amended to permit the transactions
contemplated hereby.
8. MISCELLANEOUS. The parties hereto hereby further agree as follows:
-6-
(a) FEES. The Company shall pay such fees to the Administrative Agent,
the Arranger and the Lenders as are required by the letter agreement among
the Company, the Administrative Agent and the Arranger dated December ___,
2000.
(b) FURTHER ASSURANCES. Each of the parties hereto hereby agrees to do
such further acts and things and to execute, deliver and acknowledge such
additional agreements, powers and instruments as any other party hereto may
reasonably require to carry into effect the purposes of this Amendment and
the Credit Agreement as amended hereby.
(c) COUNTERPARTS. This Amendment may be executed in one or more
counterparts, each of which, when executed and delivered, shall be deemed
to be an original and all of which counterparts, taken together, shall
constitute but one and the same document with the same force and effect as
if the signatures of all of the parties were on a single counterpart, and
it shall not be necessary in making proof of this Amendment to produce more
than one such counterpart.
(d) HEADINGS. Headings used in this Amendment are for convenience of
reference only and shall not affect the construction of this Amendment.
(e) INTEGRATION. This Amendment and the Loan Documents constitute the
entire agreement among the parties hereto with respect to the subject
matter hereof and thereof.
(f) GOVERNING LAW. THIS AMENDMENT SHALL BE DEEMED TO BE A CONTRACT
MADE UNDER THE LAWS OF THE STATE OF ILLINOIS, AND FOR ALL PURPOSES SHALL BE
GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS
AND DECISIONS OF SAID STATE, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF
LAWS.
(g) BINDING EFFECT. This Amendment shall be binding upon and inure to
the benefit of and be enforceable by the parties hereto and their
respective successors and assigns; PROVIDED, HOWEVER, that the Company may
not assign or transfer its rights, interests or obligations hereunder
without the prior written consent of the Administrative Agent and all of
the Lenders. Except as expressly set forth to the contrary herein, this
Amendment shall not be construed so as to confer any right or benefit upon
any Person other than the parties to this Amendment and their respective
successors and permitted assigns.
(h) AMENDMENT; WAIVER; REAFFIRMATION OF LOAN DOCUMENTS. The parties
hereto agree and acknowledge that nothing contained in this Amendment in
any manner or respect limits or terminates any of the provisions of the
Credit Agreement or the other Loan Documents other than as expressly set
forth herein and further agree and acknowledge that the Credit Agreement
and each of the other Loan Documents remain and continue in full force and
effect and are hereby ratified and reaffirmed in all respects. No delay on
the part of any Lender or the Administrative Agent in exercising any of
their
-7-
respective rights, remedies, powers and privileges under the Credit
Agreement or any of the other Loan Documents or partial or single exercise
thereof, shall constitute a waiver thereof. None of the terms and
conditions of this Amendment may be changed, waived, modified or varied in
any manner, whatsoever, except in accordance with Section 11.01 of the
Credit Agreement.
(i) REFERENCE TO AND EFFECT ON THE CREDIT AGREEMENT AND THE OTHER LOAN
DOCUMENTS. Upon the effectiveness hereof, 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," "thereof," or
words of like import referring to the Credit Agreement shall mean and be a
reference to the Credit Agreement as amended by this Amendment. The Credit
Agreement shall be deemed to be amended wherever and as necessary to
reflect the foregoing amendments.
[signature page follows]
-8-
IN WITNESS WHEREOF, this Amendment has been duly executed and delivered as
of the date first above written.
TELETECH HOLDINGS, INC.
By:
----------------------------------
Title:
----------------------------------
BANK OF AMERICA, N.A., as Administrative
Agent
By:
---------------------------------
Title:
----------------------------------
BANK OF AMERICA N.A., as a Lender
By:
---------------------------------
Title:
----------------------------------
FIRST UNION NATIONAL BANK, as a Lender
By:
------------------------------------
Title:
----------------------------------
U.S. BANK NATIONAL ASSOCIATION, as a
Lender
By:
---------------------------------
Title:
----------------------------------
XXXXX FARGO BANK, as a Lender
By:
---------------------------------
Title:
----------------------------------
S-1
[TO FIRST AMENDMENT]
THE NORTHERN TRUST COMPANY, as a Lender
By:
------------------------------------
Title:
----------------------------------
S-2
[TO FIRST AMENDMENT]
SCHEDULE 2.01
COMMITMENTS AND PRO RATA SHARES
Lender Commitment Pro Rata Share
------ ---------- --------------
Bank of America, N.A. $21,000,000.00 24.00000000%
First Union National Bank $18,000,000.00 20.00000000%
U.S. Bank National Association $18,000,000.00 20.57142857%
Xxxxx Fargo Bank N.A. $18,000,000.00 20.57142857%
The Northern Trust Company $12,500,000.00 14.28571429%
TOTAL $87,500,000.00 100%
============== ====
ANNEX 1
ASSIGNED LOANS
Percentage
Original Lender New Lender Interest Assigned
--------------- ---------- ------------------
Bank of America, N.A. The Northern Trust Company 16.66666667%
First Union National Bank The Northern Trust Company 16.00000000%
U.S. Bank National Association The Northern Trust Company 16.66666667%
Xxxxx Fargo Bank N.A. The Northern Trust Company 16.66666667%
