EXHIBIT 10.10
APAC CUSTOMER SERVICES, INC.
THIRD AMENDMENT AND WAIVER TO AMENDED AND RESTATED CREDIT AGREEMENT
This Third Amendment and Waiver to Amended and Restated Credit
Agreement (herein, the "AMENDMENT") is entered into as of November 22, 1999,
between APAC Customer Services, Inc., an Illinois corporation, formerly known as
APAC TeleServices, Inc. (the "Borrower"), 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 waive the Borrower's
current noncompliance with the Credit Agreement, 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. WAIVER.
The Borrower is currently not in compliance with Section 8.9 of the
Credit Agreement by reason of the Borrower's failure to limit, as required under
proviso (o) appearing in such Section, to an amount of $1,000,000 the aggregate
of all investments, loans, advances and guaranties not otherwise permitted by
Section 8.9 of the Credit Agreement. Such past failure to comply with Section
8.9 of the Credit Agreement is hereby waived; PROVIDED THAT this waiver shall
not become effective unless and until the conditions precedent set forth in
Section 3 hereof have been satisfied.
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 8.5(g) of the Credit Agreement shall be amended by
inserting the following immediately at the end thereof:
"PROVIDED THAT the Borrower shall deliver such business plan
for the Borrower's fiscal year ended on or about January 2,
2001 by no later than January 15, 2000;"
(b) Proviso (o) appearing in Section 8.9 of the Credit Agreement shall
be amended by striking the amount "$1,000,000" appearing therein and
substituting therefor the amount "$2,000,000".
(c) Section 8.28 of the Credit Agreement shall be amended by adding the
following immediately prior to the period at the end thereof:
"PROVIDED THAT the foregoing shall not apply to nor operate to
prevent the Capital Expenditures incurred by the Borrower in
an aggregate amount not in excess of $9,000,000 in connection
with the Borrower's purchase of certain software and services
from Siebel Systems, Inc.".
SECTION 3. CONDITIONS PRECEDENT.
The waiver contemplated under Section 1 hereof 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 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;
(c) 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, after giving effect to this Amendment, (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.
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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.
(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 November 22, 1999.
APAC CUSTOMER SERVICES, INC. (formerly
known as APAC TeleServices, Inc.)
By:
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Name:
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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:
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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:
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Title:
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BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
By:
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Name:
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Title:
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LASALLE BANK NATIONAL ASSOCIATION
(formerly known as LaSalle National Bank)
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:
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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:
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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.
PARAGREN TECHNOLOGIES, INC.
By
Name
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Title
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APAC TELESERVICES OF TEXAS, L.P.
By: APAC TELESERVICES GENERAL
PARTNER, INC., its General Partner
By
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Name
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Title
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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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