Initial Public Offering (IPO): Registration Statement (General Form) — Form S-1
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-1 Registration Statement (General Form) 110 661K
5: EX-7 Exhibit 10.7 14 50K
2: EX-10.1 Material Contract 10 47K
7: EX-10.11 Material Contract 29 121K
8: EX-10.15 Material Contract 17 93K
9: EX-10.16 Material Contract 42 167K
3: EX-10.2 Material Contract 14 51K
4: EX-10.5 Material Contract 44 186K
6: EX-10.8 Material Contract 7 29K
10: EX-23.1 Consent of Experts or Counsel 1 6K
11: EX-23.2 Consent of Experts or Counsel 1 7K
12: EX-27 Financial Data Schedule (Pre-XBRL) 2 10K
BUSINESS LOAN AGREEMENT
BORROWER: TELETECH TELECOMMUNICATIONS, INC., TELETECH TELESERVICES, INC.,
AND TELETECH HOLDINGS, INC.
2130 HOLLYWOOD WAY
BURBANK, CA 91504
LENDER: FIRST INTERSTATE BANK OF CALIFORNIA
FLAIR IND. PARK REGIONAL COMMERCIAL BANKING OFFICE
9000 FLAIR DRIVE
EL MONTE, CA 91731
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THIS BUSINESS LOAN AGREEMENT BETWEEN TELETECH TELECOMMUNICATIONS, INC., TELETECH
TELESERVICES, INC., AND TELETECH HOLDINGS, INC. ("BORROWER") AND FIRST
INTERSTATE BANK OF CALIFORNIA ("LENDER") IS MADE AND EXECUTED ON THE FOLLOWING
TERMS AND CONDITIONS. BORROWER HAS RECEIVED PRIOR COMMERCIAL LOANS FROM LENDER
OR HAS APPLIED TO LENDER FOR A COMMERCIAL LOAN OR LOANS AND OTHER FINANCIAL
ACCOMMODATIONS, INCLUDING THOSE WHICH MAY BE DESCRIBED ON ANY EXHIBIT OR
SCHEDULE ATTACHED TO THIS AGREEMENT. ALL SUCH LOANS AND FINANCIAL
ACCOMMODATIONS, TOGETHER WITH ALL FUTURE LOANS AND FINANCIAL ACCOMMODATIONS FROM
LENDER TO BORROWER, ARE REFERRED TO IN THIS AGREEMENT INDIVIDUALLY AS THE "LOAN"
AND COLLECTIVELY AS THE "LOANS." BORROWER UNDERSTANDS AND AGREES THAT: (A) IN
GRANTING, RENEWING, OR EXTENDING ANY LOAN, LENDER IS RELYING UPON BORROWER'S
REPRESENTATIONS, WARRANTIES, AND AGREEMENTS, AS SET FORTH IN THIS AGREEMENT;
(B) THE GRANTING, RENEWING, OR EXTENDING OF ANY LOAN BY LENDER AT ALL TIMES
SHALL BE SUBJECT TO LENDER'S SOLE JUDGMENT AND DISCRETION; AND (C) ALL SUCH
LOANS SHALL BE AND SHALL REMAIN SUBJECT TO THE FOLLOWING TERMS AND CONDITIONS OF
THIS AGREEMENT.
TERM. This Agreement shall be effective as of MARCH 29, 1996, and shall
continue thereafter until all Indebtedness of Borrower to Lender has been
performed in full or until MAY 31, 1998, whichever is later.
DEFINITIONS. The following words shall have the following meanings when used in
this Agreement. Terms not otherwise defined in this Agreement shall have the
meanings attributed to such terms in the Uniform Commercial Code. All
references to dollar amounts shall mean amounts in lawful money of the United
States of America.
AGREEMENT. The word "Agreement" means this Business Loan Agreement, as this
Business Loan Agreement may be amended or modified from time to time, together
with all exhibits and schedules attached to this Business Loan Agreement from
time to time.
BORROWER. The word "Borrower" means Teletech Telecommunications, Inc., Teletech
Teleservices, Inc., and Teletech Holdings, Inc.. The word "Borrower" also
includes, as applicable, all subsidiaries and affiliates of Borrower as provided
below in the paragraph titled "Subsidiaries and Affiliates."
CERCLA. The word "CERCLA" means the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended.
COLLATERAL. The word "Collateral" means and includes without limitation all
property and assets granted as collateral security for a Loan, whether real or
personal property, whether granted directly or indirectly, whether granted now
or in the future, and whether granted in the form of a security interest,
mortgage, deed of trust, assignment, pledge, chattel mortgage, chattel trust,
factor's lien, equipment trust, conditional sale, trust receipt, lien, charge,
lien or title retention contract, lease or consignment intended as a security
device, or any other security or lien interest whatsoever, whether created by
law, contract, or otherwise.
ERISA. The word "ERISA" means the Employee Retirement Income Security Act of
1974, as amended.
EVENT OF DEFAULT. The words "Event of Default" mean and include without
limitation any of the Events of Default set forth below in the section titled
"EVENTS OF DEFAULT."
GRANTOR. The word "Grantor" means and includes without limitation each and all
of the persons or entities granting a Security Interest in any Collateral for
the Indebtedness, including without limitation all Borrowers granting such a
Security Interest.
GUARANTOR. The word "Guarantor" means and includes without limitation each and
all of the guarantors, sureties, and accommodation parties in connection with
any Indebtedness.
INDEBTEDNESS. The word "Indebtedness" means and includes without limitation all
Loans, together with all other obligations, debts and liabilities of Borrower to
Lender, or any one or more of them, as well as all claims by Lender against
Borrower, or any one or more of them; whether now or hereafter existing,
voluntary or involuntary, due or not due, absolute or contingent, liquidated or
unliquidated; whether Borrower may be liable individually or jointly with
others; whether Borrower may be obligated as a guarantor, surety, or otherwise;
whether recovery upon such Indebtedness may be or hereafter may become barred by
any statute of limitations; and whether such Indebtedness may be or hereafter
may become otherwise unenforceable.
LENDER. The word "Lender" means First Interstate Bank of California, its
successors and assigns.
LOAN. The word "Loan" or "Loans" means and includes without limitation any and
all commercial loans and financial accommodations from Lender to Borrower,
whether now or hereafter existing, and however evidenced, including without
limitation those loans and financial accommodations described herein or
described on any exhibit or schedule attached to this Agreement from time to
time.
NOTE. The word "Note" means and includes without limitation Borrower's
promissory note or notes, if any, evidencing Borrower's Loan obligations in
favor of Lender, as well as any substitute, replacement or refinancing note or
notes therefor.
PERMITTED LIENS. The words "Permitted Liens" mean: (a) liens and security
interests securing Indebtedness owed by Borrower to Lender; (b) liens for
taxes, assessments, or similar charges either not yet due or being contested in
good faith; (c) liens of materialmen, mechanics, warehousemen, or carriers, or
other like liens arising in the ordinary course of business and securing
obligations which are not yet delinquent; (d) purchase money liens or purchase
money security interests upon or in any property acquired or held by Borrower in
the ordinary course of business to secure indebtedness outstanding on the date
of this Agreement or permitted to be incurred under the paragraph of this
Agreement titled "Indebtedness and Liens"; (e) liens and security interests
which, as of the date of this Agreement, have been disclosed to and approved by
the Lender in writing; and (f) those liens and security interests which in the
aggregate constitute an immaterial and insignificant monetary amount with
respect to the net value of Borrower's assets.
RELATED DOCUMENTS. The words "Related Documents" mean and include without
limitation all promissory notes, credit agreements, loan agreements,
environmental agreements, guaranties, security agreements, mortgages, deeds of
trust, and all other instruments, agreements and documents, whether now or
hereafter existing, executed in connection with the Indebtedness.
SECURITY AGREEMENT. The words "Security Agreement" mean and include without
limitation any agreements, promises, covenants, arrangements, understandings or
other agreements, whether created by law, contract, or otherwise, evidencing,
governing, representing, or creating a Security Interest.
SECURITY INTEREST. The words "Security Interest" mean and include without
limitation any type of collateral security, whether in the form of a lien,
charge, mortgage, deed of trust, assignment, pledge, chattel mortgage, chattel
trust, factor's lien, equipment trust, conditional sale, trust receipt, lien or
title retention contract, lease or consignment intended as a security device, or
any other security or lien interest whatsoever, whether created by law,
contract, or otherwise.
SARA. The word "SARA" means the Superfund Amendments and Reauthorization Act of
1986 as now or hereafter amended.
CONDITIONS PRECEDENT TO EACH ADVANCE. Lender's obligation to make the initial
Loan Advance and each subsequent Loan Advance under this Agreement shall be
subject to the fulfillment to Lender's satisfaction of all of the conditions set
forth in this Agreement and in the Related Documents.
LOAN DOCUMENTS. Borrower shall provide to Lender in form satisfactory to Lender
the following documents for the Loan: (a) the Note, (b) Security Agreements
granting to Lender security interests in the Collateral, (c) Financing
Statements perfecting Lender's Security Interests; (d) evidence of insurance as
required below; and (e) any other documents required under this Agreement or by
Lender or its counsel.
BORROWER'S AUTHORIZATION. Borrower shall have provided in form and substance
satisfactory to Lender properly certified resolutions, duly authorizing the
execution and delivery of this Agreement, the Note and the Related Documents,
and such other authorizations and other documents and instruments as Lender or
its counsel, in their sole discretion, may require.
PAYMENT OF FEES AND EXPENSES. Borrower shall have paid to Lender all fees,
charges, and other expenses which are then due and payable as specified in this
Agreement or any Related Document.
REPRESENTATIONS AND WARRANTIES. The representations and warranties set forth in
this Agreement, in the Related Documents, and in any document or certificate
delivered to Lender under this Agreement are true and correct.
NO EVENT OF DEFAULT. There shall not exist at the time of any advance a
condition which would constitute an Event of Default under this Agreement.
REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants to Lender, as
of the date of this Agreement, as of the date of each disbursement of Loan
proceeds, as of the date of any renewal, extension or modification of any Loan,
and at all times any Indebtedness exists:
ORGANIZATION. Borrower is a corporation which is duly organized, validly
existing, and in good standing under the laws of the state of Borrower's
incorporation and is validly existing and in good standing in all states in
which Borrower is doing business. Borrower has the full power and authority to
own its properties and to transact the businesses in which it is presently
engaged or presently proposes to engage. Borrower also is duly qualified as a
foreign corporation and is in good standing in all states in which the failure
to so qualify would have a material adverse effect on its businesses or
financial condition.
AUTHORIZATION. The execution, delivery, and performance of this Agreement and
all Related Documents by Borrower, to the extent to be executed, delivered or
performed by Borrower, have been duly authorized by all necessary action by
Borrower; do not require the consent or approval of any other person, regulatory
authority or governmental body; and do not conflict with, result in a violation
of, or constitute a default under (a) any provision of its articles of
incorporation or organization, or bylaws, or any agreement or other instrument
binding upon Borrower or (b) any law, governmental regulation, court decree, or
order applicable to Borrower.
FINANCIAL INFORMATION. Each financial statement of Borrower supplied to Lender
truly and completely disclosed Borrower's financial condition as of the date of
the statement, and there has been no material adverse change in Borrower's
financial condition subsequent
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to the date of the most recent financial statement supplied to Lender. Borrower
has no material contingent obligations except as disclosed in such financial
statements.
LEGAL EFFECT. This Agreement constitutes, and any instrument or agreement
required hereunder to be given by Borrower when delivered will constitute,
legal, valid and binding obligations of Borrower enforceable against Borrower in
accordance with their respective terms.
PROPERTIES. Except as contemplated by this Agreement or as previously disclosed
in Borrower's financial statements or in writing to Lender and as accepted by
Lender, and except for property tax liens for taxes not presently due and
payable, Borrower owns and has good title to all of Borrower's properties free
and clear of all Security Interests, and has not executed any security documents
or financing statements relating to such properties. All of Borrower's
properties are titled in Borrower's legal name, and Borrower has not used, or
filed a financing statement under, any other name for at least the last five (5)
years.
HAZARDOUS SUBSTANCES. The terms "hazardous waste," "hazardous substance,"
"disposal," "release," and "threatened release," as used in this Agreement,
shall have the same meanings as set forth in the "CERCLA," "SARA," the Hazardous
Materials Transportation Act, 49 U.S.C. Section 1801, et seq., the Resource
Conservation and Recovery Act, 49 U.S.C. Section 6901, et seq., Chapters 6.5
through 7.7 of Division 20 of the California Health and Safety Code, Section
25100, et seq., or other applicable state or Federal laws, rules, or regulations
adopted pursuant to any of the foregoing. Except as disclosed to and approved
by Lender in writing, Borrower represents and warrants that: (a) During the
period of Borrower's ownership of the properties, there has been no use,
generation, manufacture, storage, treatment, disposal, release or threatened
release of any hazardous waste or substance by any person on, under, or about
any of the properties. (b) Borrower has no knowledge of, or reason to believe
that there has been (i) any use, generation, manufacture, storage, treatment,
disposal, release, or threatened release of any hazardous waste or substance by
any prior owners or occupants of any of the properties, or (ii) any actual or
threatened litigation or claims of any kind by any person relating to such
matters. (c) Neither Borrower nor any tenant, contractor, agent or other
authorized user of any of the properties shall use, generate, manufacture,
store, treat, dispose of, or release any hazardous waste or substance on, under,
or about any of the properties; and any such activity shall be conducted in
compliance with all applicable federal, state, and local laws, regulations, and
ordinances, including without limitation those laws, regulations and ordinances
described above. Borrower authorizes Lender and its agents to enter upon the
properties to make such inspections and tests as Lender may deem appropriate to
determine compliance of the properties with this section of the Agreement. Any
inspections or tests made by Lender shall be at Borrower's expense and for
Lender's purposes only and shall not be construed to create any responsibility
or liability on the part of Lender to Borrower or to any other person. The
representations and warranties contained herein are based on Borrower's due
diligence in investigating the properties for hazardous waste. Borrower hereby
(a) releases and waives any future claims against Lender for indemnity or
contribution in the event Borrower becomes liable for cleanup or other costs
under any such laws, and (b) agrees to indemnify and hold harmless Lender
against any and all claims, losses, liabilities, damages, penalties, and
expenses which Lender may directly or indirectly sustain or suffer resulting
from a breach of this section of the Agreement or as a consequence of any use,
generation, manufacture, storage, disposal, release or threatened release
occurring prior to Borrower's ownership or interest in the properties, whether
or not the same was or should have been known to Borrower. The provisions of
this section of the Agreement, including the obligation to indemnify, shall
survive the payment of the Indebtedness and the termination or expiration of
this Agreement and shall not be affected by Lender's acquisition of any interest
in any of the properties, whether by foreclosure or otherwise.
LITIGATION AND CLAIMS. No litigation, claim, investigation, administrative
proceeding or similar action (including those for unpaid taxes) against Borrower
is pending or threatened, and no other event has occurred which may materially
adversely affect Borrower's financial condition or properties, other than
litigation, claims, or other events, if any, that have been disclosed to and
approved by Lender in writing.
TAXES. To the best of Borrower's knowledge, all tax returns and reports of
Borrower that are or were required to be filed, have been filed, and all taxes,
assessments and other governmental charges have been paid in full, except those
presently being or to be contested by Borrower in good faith in the ordinary
course of business and for which adequate reserves have been provided.
LIEN PRIORITY. Unless otherwise previously disclosed to Lender in writing,
Borrower has not entered into or granted any Security Agreements, or
permitted the filing or attachment of any Security Interests on or affecting any
of the Collateral directly or indirectly securing repayment of Borrower's Loan
and Note, that would be prior or that may in any way be superior to Lender's
Security Interests and rights in and to such Collateral.
BINDING EFFECT. This Agreement, the Note, all Security Agreements directly or
indirectly securing repayment of Borrower's Loan and Note and all of the Related
Documents are binding upon Borrower as well as upon Borrower's successors,
representatives and assigns, and are legally enforceable in accordance with
their respective terms.
COMMERCIAL PURPOSES. Borrower intends to use the Loan proceeds solely for
business or commercial related purposes.
EMPLOYEE BENEFIT PLANS. Each employee benefit plan as to which Borrower may
have any liability complies in all material respects with all applicable
requirements of law and regulations, and (i) no Reportable Event nor Prohibited
Transaction (as defined in ERISA) has occurred with respect to any such plan,
(ii) Borrower has not withdrawn from any such plan or initiated steps to do so,
and (iii) no steps have been taken to terminate any such plan.
LOCATION OF BORROWER'S OFFICES AND RECORDS. Borrower's place of business, or
Borrower's Chief executive office, if Borrower has more than one place of
business, is located at 2130 Hollywood Way, Burbank, CA 91504. Unless Borrower
has designated otherwise in writing this location is also the office or offices
where Borrower keeps its records concerning the Collateral.
INFORMATION. All information heretofore or contemporaneously herewith furnished
by Borrower to Lender for the purposes of or in connection with this Agreement
or any transaction contemplated hereby is, and all information hereafter
furnished by or on behalf of Borrower to Lender will be, true and accurate in
every material respect on the date as of which such information is dated or
certified;
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and none of such information is or will be incomplete by omitting to state any
material fact necessary to make such information not misleading.
SURVIVAL OF REPRESENTATIONS AND WARRANTIES. Borrower understands and agrees
that Lender, without independent investigation, is relying upon the above
representations and warranties in extending Loan Advances to Borrower. Borrower
further agrees that the foregoing representations and warranties shall be
continuing in nature and shall remain in full force and effect until such time
as Borrower's Indebtedness shall be paid in full, or until this Agreement shall
be terminated in the manner provided above, whichever is the last to occur.
AFFIRMATIVE COVENANTS. Borrower covenants and agrees with Lender that, while
this Agreement is in effect, Borrower will:
LITIGATION. Promptly inform Lender in writing of (a) all material adverse
changes in Borrower's financial condition, and (b) all existing and all
threatened litigation, claims, investigations, administrative proceedings or
similar actions affecting Borrower or any Guarantor which could materially
affect the financial condition of Borrower or the financial condition of any
Guarantor.
FINANCIAL RECORDS. Maintain its books and records in accordance with generally
accepted accounting principles, applied on a consistent basis, and permit Lender
to examine and audit Borrower's books and records at all reasonable times.
FINANCIAL STATEMENTS. Furnish Lender with, as soon as available, but in no
event later than one hundred twenty (120) days after the end of each fiscal
year, Borrower's balance sheet and income statement for the year ended, compiled
by a certified public accountant satisfactory to Lender, and, as soon as
available, but in no event later than sixty (60) days after the end of each
fiscal quarter, Borrower's balance sheet and profit and loss statement for the
period ended, prepared and certified as correct to the best knowledge and belief
by Borrower's chief financial officer or other officer or person acceptable to
Lender. All financial reports required to be provided under this Agreement
shall be prepared in accordance with generally accepted accounting principles,
applied on a consistent basis, and certified by Borrower as being true and
correct.
ADDITIONAL INFORMATION. Furnish such additional information and statements,
lists of assets and liabilities, agings of receivables and payables, inventory
schedules, budgets, forecasts, tax returns, and other reports with respect to
Borrower's financial condition and business operations as Lender may request
from time to time.
INSURANCE. Maintain fire and other risk insurance, public liability insurance,
and such other insurance as Lender may require with respect to Borrower's
properties and operations, in form, amounts, coverages and with insurance
companies reasonably acceptable to Lender. Borrower, upon request of Lender,
will deliver to Lender from time to time the policies or certificates of
insurance in form satisfactory to Lender, including stipulations that coverages
will not be cancelled or diminished without at least ten (10) days' prior
written notice to Lender. Each insurance policy also shall include an
endorsement providing that coverage in favor of Lender will not be impaired in
any way by any act, omission or default of Borrower or any other person. In
connection with all policies covering assets in which Lender holds or is offered
a security interest for the Loans, Borrower will provide Lender with such loss
payable or other endorsements as Lender may require.
INSURANCE REPORTS. Furnish to Lender, upon request of Lender, reports on each
existing insurance policy showing such information as Lender may reasonably
request, including without limitation the following: (a) the name of the
insurer; (b) the risks insured; (c) the amount of the policy; (d) the
properties insured; (e) the then current property values on the basis of which
insurance has been obtained, and the manner of determining those values; and
(f) the expiration date of the policy. In addition, upon request of Lender
(however not more often than annually), Borrower will have an independent
appraiser satisfactory to Lender determine, as applicable, the actual cash value
or replacement cost of any Collateral. The cost of such appraisal shall be paid
by Borrower.
OTHER AGREEMENTS. Comply with all terms and conditions of all other agreements,
whether now or hereafter existing, between Borrower and any other party and
notify Lender immediately in writing of any default in connection with any other
such agreements.
LOAN PROCEEDS. Use all Loan proceeds solely for Borrower's business operations,
unless specifically consented to the contrary by Lender in writing.
TAXES, CHARGES AND LIENS. Pay and discharge when due all of its indebtedness
and obligations, including without limitation all assessments, taxes,
governmental charges, levies and liens, of every kind and nature, imposed upon
Borrower or its properties, income, or profits, prior to the date on which
penalties would attach, and all lawful claims that, if unpaid, might become a
lien or charge upon any of Borrower's properties, income, or profits. Provided
however, Borrower will not be required to pay and discharge any such assessment,
tax, charge, levy, lien or claim so long as (a) the legality of the same shall
be contested in good faith by appropriate proceedings, and (b) Borrower shall
have established on its books adequate reserves with respect to such contested
assessment, tax, charge, levy, lien, or claim in accordance with generally
accepted accounting practices. Borrower, upon demand of Lender, will furnish to
Lender evidence of payment of the assessments, taxes, charges, levies, liens and
claims and will authorize the appropriate governmental official to deliver to
Lender at any time a written statement of any assessments, taxes, charges,
levies, liens and claims against Borrower's properties, income, or profits.
PERFORMANCE. Perform and comply with all terms, conditions, and provisions set
forth in this Agreement and in the Related Documents in a timely manner, and
promptly notify Lender if Borrower learns of the occurrence of any event which
constitutes an Event of Default under this Agreement or under any of the Related
Documents.
OPERATIONS. Maintain executive and management personnel with substantially the
same qualifications and experience as the present executive and management
personnel; provide written notice to Lender of any change in executive and
management personnel; conduct its business affairs in a reasonable and prudent
manner and in compliance with all applicable federal, state and municipal laws,
ordinances, rules and regulations respecting its properties, charters,
businesses and operations, including without limitation, compliance with the
Americans With Disabilities Act and with all minimum funding standards and other
requirements of ERISA and other laws applicable to Borrower's employee benefit
plans.
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INSPECTION. Permit employees or agents of Lender at any reasonable time to
inspect any and all Collateral for the Loan or Loans and Borrower's other
properties and to examine or audit Borrower's books, accounts, and records and
to make copies and memoranda of Borrower's books, accounts, and records. If
Borrower now or at any time hereafter maintains any records (including without
limitation computer generated records and computer software programs for the
generation of such records) in the possession of a third party, Borrower, upon
request of Lender, shall notify such party to permit Lender free access to such
records at all reasonable times and to provide Lender with copies of any records
it may request, all at Borrower's expense.
ENVIRONMENTAL COMPLIANCE AND REPORTS. Borrower shall comply in all respects
with all environmental protection federal, state and local laws, statutes,
regulations and ordinances; not cause or permit to exist, as a result of an
intentional or unintentional action or omission on its part or on the part of
any third party, on property owned and/or occupied by Borrower, any
environmental activity where damage may result to the environment, unless such
environmental activity is pursuant to and in compliance with the conditions of a
permit issued by the appropriate federal, state or local governmental
authorities; shall furnish to Lender promptly and in any event within thirty
(30) days after receipt thereof a copy of any notice, summons, lien, citation,
directive, letter or other communication from any governmental agency or
instrumentality concerning any intentional or unintentional action or omission
on Borrower's part in connection with any environmental activity whether or not
there is damage to the environment and/or other natural resources.
ADDITIONAL ASSURANCES. Make, execute and deliver to Lender such promissory
notes, mortgages, deeds of trust, security agreements, financing statements,
instruments, documents and other agreements as Lender or its attorneys may
reasonably request to evidence and secure the Loans and to perfect all Security
Interests.
RECOVERY OF ADDITIONAL COSTS. If the imposition of or any change in any law,
rule, regulation or guideline, or the interpretation or application of any
thereof by any court or administrative or governmental authority (including any
request or policy not having the force of law) shall impose, modify or make
applicable any taxes (except U.S. federal, state or local income or franchise
taxes imposed on Lender), reserve requirements, capital adequacy requirements or
other obligations which would (a) increase the cost to Lender for extending or
maintaining the credit facilities to which this Agreement relates, (b) reduce
the amounts payable to Lender under this Agreement or the Related Documents, or
(c) reduce the rate of return on Lender's capital as a consequence of Lender's
obligations with respect to the credit facilities to which this Agreement
relates, then Borrower agrees to pay Lender such additional amounts as will
compensate Lender therefor, within five (5) days after Lender's written demand
for such payment, which demand shall be accompanied by an explanation of such
imposition or charge and a calculation in reasonable detail of the additional
amounts payable by Borrower, which explanation and calculations shall be
conclusive in the absence of manifest error.
NEGATIVE COVENANTS. Borrower covenants and agrees with Lender that while this
Agreement is in effect, Borrower shall not, without the prior written consent of
Lender:
INDEBTEDNESS AND LIENS. (a) Except for trade debt incurred in the normal course
of business and indebtedness to Lender contemplated by this Agreement, create,
incur or assume indebtedness for borrowed money, including capital leases, (b)
except as allowed as a Permitted Lien, sell, transfer, mortgage, assign, pledge,
lease, grant a security interest in, or encumber any of Borrower's assets, or
(c) sell with recourse any of Borrower's accounts, except to Lender.
CONTINUITY OF OPERATIONS. (a) Engage in any business activities substantially
different than those in which Borrower is presently engaged, (b) cease
operations, liquidate, merge, transfer, acquire or consolidate with any other
entity, change ownership, change its name, dissolve or transfer or sell
Collateral out of the ordinary course of business, (c) pay any dividends on
Borrower's stock (other than dividends payable in its stock), provided, however
that notwithstanding the foregoing, but only so long as no Event of Default has
occurred and is continuing or would result from the payment of dividends, if
Borrower is a "Subchapter S Corporation" (as defined in the Internal Revenue
Code of 1986, as amended), Borrower may pay cash dividends on its stock to its
shareholders from time to time in amounts necessary to enable the shareholders
to pay income taxes and make estimated income tax payments to satisfy their
liabilities under federal and state law which arise solely from their status as
Shareholders of a Subchapter S Corporation because of their ownership of shares
of stock of Borrower, or (d) purchase or retire any of Borrower's outstanding
shares or alter or amend Borrower's capital structure.
LOANS, ACQUISITIONS AND GUARANTIES. (a) Loan, invest in or advance money or
assets, (b) purchase, create or acquire any interest in any other enterprise or
entity, or (c) incur any obligation as surety or guarantor other than in the
ordinary course of business.
CESSATION OF ADVANCES. If Lender has made any commitment to make any Loan to
Borrower, whether under this Agreement or under any other agreement, Lender
shall have no obligation to make Loan Advances or to disburse Loan proceeds if:
(a) Borrower or any Guarantor is in default under the terms of this Agreement or
any of the Related Documents or any other agreement that Borrower or any
Guarantor has with Lender, or the occurence of any event or condition which
after notice or the passage of time would constitute an Event of Default; (b)
Borrower or any Guarantor becomes insolvent, files a petition in bankruptcy or
similar proceedings, or is adjudged a bankrupt; (c) there occurs a material
adverse change in Borrower's financial condition, in the financial condition of
any Guarantor, or in the value of any Collateral securing any Loan; or (d) any
Guarantor seeks, claims or otherwise attempts to limit, modify or revoke such
Guarantor's guaranty of the Loan or any other loan with Lender.
ADDITIONAL DEFINITION. The following words shall have the following meanings
when used in this Agreement:
Adjusted Net Income - The words "Adjusted Net Income" mean net income after
taxes plus depreciation, amortization, rent and lease expense, and interest
expense, less noncash income.
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Fixed Charges - The words "Fixed Charges" mean interest expense plus rent and
lease expense, current maturities of long-term debt, current maturities of
capital leases, and preferred stock dividends or partners' withdrawals.
Tangible Net Worth - The words "Tangible Net Worth" mean Borrower's total
assets, excluding all intangible assets (i.e. goodwill, trademarks, patents,
copyrights, organizational expenses, and similar intangible items, but including
leaseholds and leasehold improvements), and excluding amounts due from
shareholders, less total liabilities.
ADDITIONAL AFFIRMATIVE COVENANTS. Borrower covenants and agrees with Lender
that, while this Agreement is in effect, Borrower will comply with the following
covenants and ratios:
1) Times Fixed Charge Coverage Ratio. Maintain a ratio of Adjusted Net Income
to Fixed Charges of 1.50 to 1.00.
2) Debt to Tangible Net Worth. Maintain a ratio of total liabilities to
Tangible Net Worth of less than 1.25 to 1.00.
3) Tangible Net Worth. Maintain minimum Tangible Net Worth of $14,000,000.00,
increasing to $15,000,000.00 by 06/30/96, and increasing by $1,000,000.00 per
quarter thereafter.
4) Maintain quarterly profitability.
DEPOSIT ACCOUNTS. Borrower grants to Lender a contractual possessory security
interest in, and hereby assigns, conveys, delivers, pledges, and transfers to
Lender all Borrower's right, title and interest in and to, Borrower's accounts
with Lender (whether checking, savings, or some other account), including
without limitation all accounts held jointly with someone else and all accounts
Borrower may open in the future, excluding however all IRA, Keogh, and trust
accounts.
EVENTS OF DEFAULT. Each of the following shall constitute an Event of Default
under this Agreement:
DEFAULT ON INDEBTEDNESS. Failure of Borrower to make any payment when due on
the Loans.
OTHER DEFAULTS. Failure of Borrower or any Grantor to comply with or to perform
when due any other term, obligation, covenant or condition contained in this
Agreement or in any of the Related Documents, or failure of Borrower to comply
with or to perform any other term, obligation, covenant or condition contained
in any other agreement between Lender and Borrower.
DEFAULT IN FAVOR OF THIRD PARTIES. Should Borrower or any Grantor default under
any loan, extension of credit, security agreement, purchase or sales agreement,
or any other agreement, in favor of any other creditor or person that may
materially affect any of Borrower's property or Borrower's or any Grantor's
ability to repay the Loans or perform their respective obligations under this
Agreement or any of the Related Documents.
FALSE STATEMENTS. Any warranty, representation or statement made or furnished
to Lender by or on behalf of Borrower or any Grantor under this Agreement or the
Related Documents is false or misleading in any material respect at the time
made or furnished, or becomes false or misleading at any time thereafter.
DEFECTIVE COLLATERALIZATION. This Agreement or any of the Related Documents
ceases to be in full force and effect (including failure of any Security
Agreement to create a valid and perfected Security Interest) at any time and for
any reason.
INSOLVENCY. The dissolution or termination of Borrower's existence as a going
business, the insolvency of Borrower, the appointment of a receiver for any part
of Borrower's property, any assignment for the benefit of creditors, any type of
creditor workout, or the commencement of any proceeding under any bankruptcy or
insolvency laws by or against Borrower.
CREDITOR OR FORFEITURE PROCEEDINGS. Commencement of foreclosure or forfeiture
proceedings, whether by judicial proceeding, self-help, repossession or any
other method, by any creditor of Borrower, any creditor of any Grantor against
any collateral securing the Indebtedness, or by any governmental agency. This
includes a garnishment, attachment, or levy on or of any of Borrower's deposit
accounts with Lender.
EVENTS AFFECTING GUARANTOR. Any of the preceding events occurs with respect to
any Guarantor of any of the Indebtedness or any Guarantor dies or becomes
incompetent, or revokes or disputes the validity of, or liability under, any
Guaranty of the Indebtedness.
CHANGE IN OWNERSHIP. Any change in ownership of twenty-five percent (25%) or
more of the common stock of Borrower.
ADVERSE CHANGE. A material adverse change occurs in Borrower's financial
condition, or Lender believes the prospect of payment or performance of the
Indebtedness is impaired.
EFFECT OF AN EVENT OF DEFAULT. If any Event of Default shall occur, except
where otherwise provided in this Agreement or the Related Documents, all
commitments and obligations of Lender under this Agreement or the Related
Documents or any other agreement immediately will terminate (including any
obligation to make Loan Advances or disbursements), and, at Lender's option, all
Indebtedness immediately will become due and payable, all without notice of any
kind to Borrower, except that in the case of an Event of Default of the type
described in the "Insolvency" subsection above, such acceleration shall be
automatic and not optional. In addition, Lender shall have all the rights and
remedies provided in the Related Documents or available at law, in equity, or
otherwise. Except as may be prohibited by applicable law, all of Lender's
rights and remedies shall be cumulative and may be exercised singularly or
concurrently. Election by Lender to pursue any remedy shall not exclude pursuit
of any other remedy, and an election to make expenditures or to take action to
perform an obligation of Borrower or of any Grantor shall not affect Lender's
right to declare a default and to exercise its rights and remedies.
MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of
this Agreement:
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AMENDMENTS. This Agreement, together with any Related Documents, constitutes
the entire understanding and agreement of the parties as to the matters set
forth in this Agreement. No alteration of or amendment to this Agreement shall
be effective unless given in writing and signed by the party or parties sought
to be charged or bound by the alteration or amendment.
APPLICABLE LAW. THIS AGREEMENT HAS BEEN DELIVERED TO LENDER AND ACCEPTED BY
LENDER IN THE STATE OF CALIFORNIA. IF THERE IS A LAWSUIT, BORROWER AGREES UPON
LENDER'S REQUEST TO SUBMIT TO THE JURISDICTION OF THE COURTS OF LOS ANGELES
COUNTY, THE STATE OF CALIFORNIA SUBJECT TO THE PROVISIONS ON ARBITRATION, THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF CALIFORNIA.
ARBITRATION.
Binding Arbitration. Upon the demand of any party ("Party/Parties"), to a
Document (as defined below), whether made before the institution of any judicial
proceeding or not more than 60 days after service of a complaint, third party
complaint, cross-claim or counterclaim or any answer thereto or any amendment to
any of the above, any Dispute (as defined below) shall be resolved by binding
arbitration in accordance with the terms of this arbitration program
("Arbitration Program"). A "Dispute" shall include any action, dispute, claim
or controversy of any kind, whether founded in contract, tort, statutory or
common law, equity, or otherwise, now existing or hereafter arising between any
of the Parties arising out of, pertaining to or in connection with any
agreement, document or instrument to which this Arbitration Program is attached
or in which it appears or is referenced or any related agreements, documents, or
instruments ("Documents"). Any Party who fails to submit to binding arbitration
following a lawful demand by another Party shall bear all costs and expenses,
including reasonable attorneys' fees (including those incurred in any trial,
bankruptcy proceeding or on appeal), incurred by the other Party in obtaining a
stay of any pending judicial proceeding and compelling arbitration of any
Dispute. The Parties agree that any agreement, document or instrument which
includes, attaches to or incorporates this Arbitration Program represents a
transaction involving commerce as that term is used in the Federal Arbitration
Act, Title 9 United States Code ("FAA"). THE PARTIES UNDERSTAND THAT BY THIS
AGREEMENT THEY HAVE DECIDED THAT THEIR DISPUTES SHALL BE RESOLVED BY BINDING
ARBITRATION RATHER THAN IN COURT, AND ONCE DECIDED BY ARBITRATION NO DISPUTE CAN
LATER BE BROUGHT, FILED OR PURSUED IN COURT.
GOVERNING RULES. Arbitrations conducted pursuant to this Arbitration Program
shall be administered by the American Arbitration Association ("AAA"), or other
mutually agreeable administrator ("Administrator") in accordance with the terms
of this Arbitration Program and the Commercial Arbitration Rules of the AAA.
Proceedings hereunder shall be governed by the provisions of the FAA. The
arbitrator(s) shall resolve all Disputes in accordance with the applicable
substantive law designated in the Documents. Judgment upon any award rendered
hereunder may be entered in any court having jurisdiction; provided, however,
that nothing herein shall be construed to be a waiver by any Party that is a
bank of the protections afforded pursuant to 12 U.S.C. 91 or any similar
applicable state law.
ARBITRATOR POWERS AND QUALIFICATIONS; AWARDS. The Parties agree to select a
neutral qualified arbitrator or a panel of three qualified arbitrators to
resolve any Dispute hereunder. "Qualified" means a retired judge or practicing
attorney, with not less than 10 years practice in commercial law, licensed to
practice in the state of the applicable substantive law designated in the
Documents. A Dispute in which the claims or amounts in controversy do not
exceed $1,000,000, shall be decided by a single arbitrator. A single arbitrator
shall have authority to render an award up to but not to exceed $1,000,000.00
including all damages of any kind whatsoever, costs, fees, attorneys' fees and
expenses. Submission to a single arbitrator shall be a waiver of all Parties'
claims to recover more than $1,000,000.00. A Dispute involving claims or
amounts in controversy exceeding $1,000,000.00 shall be decided by a majority
vote of a panel of three qualified arbitrators. All three arbitrators on the
arbitration panel must actively participate in all hearings and deliberations.
The arbitrator(s) shall be empowered to, at the written request of any Party in
any Dispute, (a) to consolidate in a single proceeding any multiple party claims
that are substantially identical or based upon the same underlying transaction;
(b) to consolidate any claims and Disputes between other Parties which arise out
of or relate to the subject matter hereof, including all claims by or against
borrowers, guarantors, sureties and/or owners of collateral; and (c) to
administer multiple arbitration claims as class actions in accordance with Rule
23 of the Federal Rules of Civil Procedure. In any consolidated proceeding the
first arbitrator(s) selected in any proceeding shall conduct the consolidated
proceeding unless disqualified due to conflict of interest. The arbitrators(s)
shall be empowered to resolve any dispute regarding the terms of this
arbitration clause, including questions about the arbitrability of any Dispute,
but shall have no power to change or alter the terms of the Arbitration Program.
The prevailing Party in any Dispute shall be entitled to recover its reasonable
attorneys' fees in any arbitration, and the arbitrator(s) shall have the power
to award such fees. The award of the arbitrator(s) shall be in writing and
shall set forth the factual and legal basis for the award.
REAL PROPERTY COLLATERAL. Notwithstanding the provisions of the preceding
paragraphs concerning arbitration, no Dispute shall be submitted to arbitration
without the consent of all Parties if, at the time of the proposed submission,
such Dispute arises from or relates to an obligation which is secured directly
or indirectly and in whole or in part by real property collateral. If all
Parties do not consent to submission of such a Dispute to arbitration, the
Dispute shall be determined as provided in the paragraph below entitled
"Judicial Reference".
JUDICIAL REFERENCE. At the request of any Party, a Dispute which is not
submitted to arbitration as provided and limited in the preceding paragraphs
concerning arbitration shall be determined by a reference in accordance with
California Code of Civil Procedure Section 638 et seq. If such an election is
made, the Parties shall designate to the court a referee or referees selected
under the auspices of the AAA, unless otherwise agreed to in writing by all
parties. With respect to a Dispute in which the amounts in controversy do not
exceed $1,000,000, a single referee shall be chosen and shall resolve the
Dispute. The referee shall have authority to render an award up to but not to
exceed $1,000,000, including all damages of any kind whatsoever, including
costs, fees and expenses. A Dispute involving amounts in controversy exceeding
$1,000,000 shall be decided by a majority vote of a panel of three
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referees (a "Referee Panel"), PROVIDED, HOWEVER, that all three referees on the
Referee Panel must actively participate in all hearings and deliberations.
Referees, including any Referee Panel, may grant any remedy of relief deemed
just and equitable and within the scope of this Arbitration Program and may also
grant such ancillary relief as is necessary to make effective any award. The
presiding referee of the Referee Panel, or the referee if there is a single
referee, shall be a retired judge. Judgment upon the award rendered by such
referee(s) shall be entered in the court in which such proceeding was commenced
in accordance with California Code of Civil Procedure Sections 644 and 645.
Determinations and awards by a referee or Referee Panel shall be binding on all
Parties and shall not be subject to further review or appeal except as allowed
by applicable law.
PRESERVATION OF REMEDIES. No provision of, nor the excise of any rights under,
this Arbitration Program shall limit the right of any Party to: (a) foreclose
against and/or sale of any real or personal property collateral or other
security, or obtain a personal or deficiency award; (b) exercise self-help
remedies (including repossession and setoff rights); or (c) obtain provisional
or ancillary remedies such as injunctive relief, sequestration, attachment,
replevin, garnishment, or the appointment of a receiver from a court having
jurisdiction. Such rights can be exercised at any time except to the extent
such action is contrary to a final award or decision in any arbitration
proceeding. The institution and maintenance of an action as described above
shall not constitute a waiver of the right of any Party to submit the Dispute to
arbitration, nor render inapplicable the compulsory exercise of any self-help,
auxiliary or other rights under this paragraph shall be a Dispute hereunder.
MISCELLANEOUS. All statutes of limitation applicable to any Dispute shall apply
to any proceeding in accordance with this Arbitration Program. The Parties
agree, to the maximum extent practicable, to take any action necessary to
conclude an arbitration hereunder within 180 days of the filing of a Dispute
with the Administrator. The arbitrator(s) shall be empowered to impose
sanctions for any Party's failure to proceed within the times established
herein. Arbitrations shall be conducted in the state of the applicable
substantive law designated in the Documents. The provisions of this Arbitration
Program shall survive an termination, amendment, or expiration hereof or of the
Documents unless the Parties otherwise expressly agree in writing. Each Party
agrees to keep all Disputes and arbitration proceedings strictly confidential,
except for disclosures of information required in the ordinary course of
business of the Parties or as required by applicable law or regulation. If any
provision of this Arbitration Program is declared invalid by any court, the
remaining provisions shall not be affected thereby and shall remain fully
enforceable.
CAPTION HEADINGS. Caption headings in this Agreement are for convenience
purposes only and are not to be used to interpret or define the provisions of
this Agreement.
MULTIPLE PARTIES; CORPORATE AUTHORITY. All obligations of Borrower under this
Agreement shall be joint and several, and all references to Borrower shall mean
each and every Borrower. This means that each of the Borrowers signing below is
responsible for ALL obligations in this Agreement.
CONSENT TO LOAN PARTICIPATION. Borrower agrees and consents to Lender's sale or
transfer, whether now or later, of one or more participation interests in the
Loans to one or more purchasers, whether related or unrelated to Lender. Lender
may provide, without any limitation whatsoever, to any one or more purchasers,
or potential purchasers, any information or knowledge Lender may have about
Borrower or about any other matter relating to the Loan, and Borrower hereby
waives any rights to privacy it may have with respect to such matters. Borrower
additionally waives any and all notices of sale of participation interests, as
well as all notices of any repurchase of such participation interests. Borrower
also agrees that the purchasers of any such participation interests will be
considered as the absolute owners of such interests in the Loans and will have
all the rights granted under the participation agreement or agreements governing
the sale of such participation interests. Borrower further waives all rights of
offset or counterclaim that it may have now or later against Lender or against
any purchaser of such a participation interest and unconditionally agrees that
either Lender or such purchaser may enforce Borrower's obligation under the
Loans irrespective of the failure or insolvency of any holder of any interest in
the Loans. Borrower further agrees that the purchaser of any such participation
interests may enforce its interests irrespective of any personal claims or
defenses that Borrower may have against Lender.
COSTS AND EXPENSES. Borrower agrees to pay upon demand all of Lender's
allocated costs of in-house counsel and expenses, including without limitation
attorneys' fees, incurred in connection with the preparation, execution,
enforcement, modification and collection of this Agreement or in connection with
the Loans made pursuant to this Agreement. Lender may pay someone else to help
collect the Loans and to enforce this Agreement, and Borrower will pay that
amount. This includes, subject to any limits under applicable law, Lender's
attorneys' fees and Lender's legal expenses, whether or not there is a lawsuit,
including attorneys' fees for bankruptcy proceedings (including efforts to
modify or vacate any automatic stay or injunction), appeals, and any anticipated
post-judgment collection services. Borrower also will pay any court costs, in
addition to all other sums provided by law.
NOTICES. All notices required to be given under this Agreement shall be given
in writing, may be sent by telefacsimilie, and shall be effective when actually
delivered or when deposited with a nationally recognized overnight courier or
deposited in the United States mail, first class, postage prepaid, addressed to
the party to whom the notice is to be given at the address shown above. Any
party may change its address for notices under this Agreement by giving formal
written notice to the other parties, specifying that the purpose of the notice
is to change the party's address. To the extent permitted by applicable law, if
there is more than one Borrower, notice to any Borrower will constitute notice
to all Borrowers. For notice purposes, Borrower agrees to keep Lender informed
at all times of Borrower's current address(es).
-8-
SEVERABILITY. If a court of competent jurisdiction finds any provision of this
Agreement to be invalid or unenforceable as to any person or circumstance, such
finding shall not render that provision invalid or unenforceable as to any other
persons or circumstances. If feasible, any such offending provision shall be
deemed to be modified to be within the limits of enforceability or validity;
however, if the offending provision cannot be so modified, it shall be stricken
and all other provisions of this Agreement in all other respects shall remain
valid and enforceable.
SUBSIDIARIES AND AFFILIATES OF BORROWER. To the extent the context of any
provisions of this Agreement makes it appropriate, including without limitation
any representation, warranty or covenant, the word "Borrower" as used herein
shall include all subsidiaries and affiliates of Borrower. Notwithstanding the
foregoing however, under no circumstances shall this Agreement be construed to
require Lender to make any Loan or other financial accommodation to any
subsidiary or affiliate of Borrower.
SUCCESSORS AND ASSIGNS. All covenants and agreements contained by or on behalf
of Borrower shall bind its successors and assigns and shall inure to the benefit
of Lender, its successors and assigns. Borrower shall not, however, have the
right to assign its rights under this Agreement or any interest therein, without
the prior written consent of Lender.
SURVIVAL. All warranties, representations, and covenants made by Borrower in
this Agreement or in any certificate or other instrument delivered by Borrower
to Lender under this Agreement shall be considered to have been relied upon by
Lender and will survive the making of the Loan and delivery to Lender of the
Related Documents, regardless of any investigation made by Lender or on Lender's
behalf.
TIME IS OF THE ESSENCE. Time is of the essence in the performance of this
Agreement.
WAIVER. Lender shall not be deemed to have waived any rights under this
Agreement unless such waiver is given in writing and signed by Lender. No delay
or omission on the part of Lender in exercising any right shall operate as a
waiver of such right or any other right. A waiver by Lender of a provision of
this Agreement shall not prejudice or constitute a waiver of Lender's right
otherwise to demand strict compliance with that provision or any other provision
of this Agreement. No prior waiver by Lender, nor any course of dealing between
Lender and Borrower, or between Lender and any Grantor, shall constitute a
waiver of any of Lender's rights or of any obligations of Borrower or of any
Grantor as to any future transactions. Whenever the consent of Lender is
required under this Agreement, the granting of such consent by Lender in any
instance shall not constitute continuing consent in subsequent instances where
such consent is required, and in all cases such consent may be granted or
withheld in the sole discretion of Lender.
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BORROWER ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS BUSINESS LOAN
AGREEMENT, AND BORROWER AGREES TO ITS TERMS. THIS AGREEMENT IS DATED AS OF
MARCH 29, 1996.
BORROWER:
TELETECH TELECOMMUNICATIONS, INC., TELETECH TELESERVICES, INC., AND TELETECH
HOLDINGS, INC.
X /s/ Steven B. Coburn
-----------------------------------------------------------
AUTHORIZED OFFICER
X /s/ Steven B. Coburn
-----------------------------------------------------------
AUTHORIZED OFFICER
X /s/ Steven B. Coburn
-----------------------------------------------------------
AUTHORIZED OFFICER
LENDER:
FIRST INTERSTATE BANK OF CALIFORNIA
BY: /s/ Nancy Martorano
----------------------------------------------------------
AUTHORIZED OFFICER
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ADDENDUM TO BUSINESS LOAN AGREEMENT
This Addendum to Business Loan Agreement ("Addendum") is entered into as of
______, 1996, between First Interstate Bank of California ("Bank") and Teletech
Telecommunications, Inc., Teletech Teleservices, Inc. and Teletech Holding, Inc.
("Borrower"), and shall be attached to that certain Business Loan Agreement
dated as of _______, 1996, between Bank and Borrower ("Agreement").
The Agreement is hereby amended, and the parties hereto agree, as follows
(except as otherwise defined herein, all capitalized terms used herein shall
have the meanings as defined in the Agreement):
1. In the introductory paragraph of the Agreement, on page 1 thereof
(which paragraph begins "This Business Loan Agreement"), subdivision (b) shall
be deemed deleted and subdivision (c) shall be deemed re-lettered as subdivision
(b).
2. The parties hereto acknowledge and agree that notwithstanding the
inclusion of a definition of "Collateral" in the Agreement and the statement
therein that "Collateral means and includes without limitation all property and
assets granted as collateral security for a Loan," Bank has required Borrower to
furnish Bank with Collateral only as security for the indebtedness of Borrower
to Bank arising under or in connection with Borrower's lease facility.
3. The parties hereto acknowledge and agree that notwithstanding the
inclusion of a definition of "Guarantor" in the Agreement, Bank has not required
any third party to guarantee the Indebtedness of Borrower to Bank in connection
with any of the Loans.
4. The word "reasonable" shall be deemed inserted in the following places
in the Agreement:
(a) On page 2, in the paragraph titled "Payment of Fees and
Expenses," after the words "shall have paid to Lender all" and before the words
"fees, charges."
(b) On page 3, in the paragraph titled "Insurance Reports," after the
words "Furnish to Lender, upon" and before the words "request of Lender."
(c) On page 6, in the paragraph titled "Costs and Expenses," after
the words "all of Lender's" and before the words "allocated costs."
(d) On page 6, in the paragraph titled "Costs and Expenses," after
the words "applicable law, Lender's" and before the words "attorneys' fees."
5. The word "reasonably" shall be deemed inserted in the following places
in the Agreement:
(a) On page 3, in the paragraph titled "Financial Statements," after
the words "as soon as" and before the words "available," in the first and third
lines of that paragraph.
(b) On page 3, in the paragraph titled "Additional Information,"
after the words "as Lender may" and before the words "request from time to
time."
(c) On page 3, in the paragraph titled "Insurance," after the words
"as Lender may" and before the words "require with respect to."
6. On page 2, the paragraph titled "Organization" shall be deemed deleted
and replaced by the following: "Organization. Borrower is a corporation which
is duly organized, validly existing and in good standing under the laws of the
state of Borrower's incorporation, and is qualified or licensed to do business
and is in good standing as a foreign corporation, if applicable, in all
jurisdictions in which the failure to so qualify or to be so licensed could have
a material adverse effect on Borrower. Borrower has the full power and
authority to own its properties and to transact the businesses in which it is
presently engaged or presently proposes to engage."
7. On page 2, the paragraph titled "Legal Effect" shall be deemed deleted
and replaced by the following: "Legal Effect. This Agreement constitutes, and
any instrument or agreement required hereunder to be given by Borrower when
delivered will constitute, legal, valid and biding obligations of Borrower
enforceable against Borrower in accordance with their respective terms, except
as the enforceability thereof may be affected by bankruptcy, insolvency or
similar laws affecting the enforcement of creditors' rights generally, and
except as the availability of certain equitable remedies may be limited by
certain equitable principles of general applicability."
8. On page 2, the paragraph titled "Payment of Fees and Expenses" shall be
deemed amended by deleting the period at the end
thereof and inserting thereat the following: ", subject to such limitations
thereon as may be specified in this Agreement or any such Related Document."
9. On page 2, in the paragraph titled "Litigation and Claims" the
following shall be deemed inserted after the words "is pending or threatened"
and before the words "and no other event": "which may materially adversely
affect Borrower's financial condition or properties,".
10. On page 3, the paragraph titled "Location of Borrower's Offices and
Records," is amended by deleting "2130 Hollywood Way, Burbank, CA 91504" and
replacing such address with "1700 Lincoln Street, 14th Floor, Denver, Colorado
80203."
11. On page 4, in the paragraph titled "Operations," the word "key" shall
be deemed inserted after the word "present" in the first line of that paragraph
and again after the words "change in" in the second line thereof.
12. On page 4, in the paragraph titled "Indebtedness and Liens," the
following shall be deemed inserted after the words "contemplated by this
Agreement" and before the words "create, incur": "and purchase money
indebtedness incurred to finance the purchase of equipment,".
13. On page 4, the paragraph titled "Continuity of Operations" shall be
deleted and replaced by the following: "Continuity of Operations. (a) Engage
in any business activities substantially different than those in which Borrower
is presently engaged, or (b) cease operations, liquidate, merge or consolidate
with any other entity, change its name, dissolve or transfer or sell Collateral
out of the ordinary course of business."
14. On page 4, after the paragraph titled "Loans, Acquisition and
Guaranties," the following paragraphs shall be deemed inserted as additional
negative covenants:
"Operating Leases and Capital Expenditures. Incur operating lease
expense and make investments in fixed assets in any fiscal year in excess of an
aggregate of $15,000,000 for all such lease expenses and fixed asset investments
combined (for the purposes of this paragraph, capital leases shall be excluded).
Capital Leases. Make investments in capital leases in any fiscal year
in excess of an aggregate of $15,000,000."
3
15. On page 5, the paragraph titled "Deposit Accounts" shall be deemed
deleted.
16. On page 5, the paragraph titled "Other Defaults" shall be deemed
amended by deleting the period at the end thereof and inserting thereat the
following: "; provided, however, that in the case of such a failure under this
Agreement or any Related Document which by its nature can be cured, but which is
not a failure to make any payment when due or a breach of any representation or
warranty, such failure continues for a period of twenty (20) days from its
occurrence (the parties hereto acknowledge that during such cure period, Lender
may decline to make new extensions of credit to Borrower); provided, further,
however, that in the case of such a failure under any agreement between Lender
and Borrower other than this Agreement or any Related Document, which by its
nature can be cured, but which is not a failure to make any payment when due or
a breach of any representation or warranty, such failure is not cured within any
applicable cure period (the parties hereto acknowledge that during such cure
period, Lender may decline to make new extensions of credit to Borrower)."
17. On page 5, the paragraph titled "Default in Favor of Third Parties"
shall be amended by deleting the period at the end thereof and inserting thereat
the following: "; provided, however, that in any such case, any cure period
applicable thereto has expired (the parties hereto acknowledge that during such
cure period, Lender may decline to make new extensions of credit to Borrower)."
18. On page 5, the paragraph titled "Change in Ownership" shall be deemed
deleted.
19. On page 5, the paragraph titled "Adverse Change" shall be deemed
deleted and replaced by the following: "Impairment of Prospect of Payment or
Performance. There shall occur an event or condition which Lender believes in
good faith impairs the prospect of payment or performance of the Indebtedness
and Borrower fails to cure such impairment within twenty (20) days after notice
thereof from Lender."
20. On page 6, the paragraph titled "Consent to Loan Participation" shall
be deemed amended as follows: In the fourth line thereof, the words "and
Borrower hereby waives any rights to privacy it may have with respect to such
matters," shall be deemed deleted and replaced by the words "; provided,
however, that such purchaser shall furnish Lender with a reasonable
confidentiality agreement."
4
21. On page 6, the paragraph titled "Costs and Expenses" shall be deemed
amended by deleting the period at the end of the second sentence of that
paragraph (which sentence begins "Lender may pay") and inserting thereat the
following: "; provided, however, that in the event Lender retains outside
counsel to so collect or enforce the Loans, then Borrower shall only be
obligated hereunder to reimburse Lender for the reasonable costs and expenses of
such outside counsel, including without limitation reasonable attorneys' fees."
22. Bank and Borrower are concurrently herewith changing certain of the
terms and provisions of that certain promissory note dated April 12, 1995,
executed by Borrower in favor of Bank, in the original principal amount of
$5,000,000.00 ("Line of Credit Note"). Among other things, the maximum amount
of the Line of Credit Note is being increased from $5,000,000.00 to
$15,000,000.00. The parties hereto agree that the following paragraph shall be
deemed inserted into the Line of Credit Note at the end of the first paragraph
thereof:
"This Note shall evidence cash advances to Borrower made hereunder plus the
amount of letters of credit issued by Bank on behalf of Borrower (collectively,
"Letters of Credit" and individually, "Letter of Credit"). Bank is not
obligated to advance funds or issue Letters of Credit hereunder if the resulting
total outstanding amount of (i) cash advances made hereunder, and (ii) the
amount of all Letters of Credit issued hereunder (whether or not such Letters of
Credit have been drawn under and funded and including the unreimbursed amount of
any drafts paid by Bank under any Letter of Credit) would exceed the Revolving
Commitment. However, in the event such advances and Letter of Credit amounts
exceed the amount of this Note, such sums shall be deemed validly advanced
hereunder or evidenced by this Note, as if the principal amount of this Note had
been increased to accommodate such amounts, and such sums shall be considered to
be a part of the indebtedness evidenced by this Note for all purposes and shall
be secured by any applicable security instruments and guaranties as if such
instruments had been amended to accommodate and include such amounts. Bank
reserves the right to require immediate repayment of amounts in excess of the
above stated principal amount of this Note plus unpaid accrued interest on such
amounts, and such actions shall not constitute a waiver of any rights of Bank
under this Note or any related loan documents. Borrower irrevocably authorizes
Bank to make advances hereunder from time to time equal to the amount of each
draft presented to Bank under various Letters of Credit. Notwithstanding
anything to the contrary, no interest will be charged or accrue on any amount(s)
of this Note prior to the
5
actual advance of such amounts. Provisions of this Note relating to Letters of
Credit shall not be construed to obligate Bank to issue Letters of Credit for
Borrower; Bank reserves the right to approve or deny any Application for Letter
of Credit in its sole discretion. In the event any draft for an advance under a
Letter of Credit is funded subsequent to the final payment date of this Note,
Bank may pay any such amount by means of an advance under this Note, and
Borrower agrees to repay any and all such advances immediately after each such
advance occurs, with interest accruing on the amount of such advance until paid
in accordance with this Note (including any applicable default rate of
interest). If for any reason the amount of any such advance plus accrued
interest is not promptly repaid when due, Bank may defer collecting said sum
without waiving any of its rights, and may require repayment of said sum plus
accrued interest at any subsequent time at Bank's discretion."
23. Except as expressly provided herein, all terms and provisions of the
Agreement shall continue in full force and effect, without waiver or
modification.
6
IN WITNESS WHEREOF, the parties hereto have executed this Addendum as of
the date and year stated above.
TELETECH TELECOMMUNICATIONS, INC.
By: /s/ Steven B. Coburn
--------------------
Title:
-----------------
TELETECH TELESERVICES, INC.
By: /s/ Steven B. Coburn
--------------------
Title:
-----------------
TELETECH HOLDINGS, INC.
By: /s/ Steven B. Coburn
--------------------
Title:
-----------------
FIRST INTERSTATE BANK OF CALIFORNIA
By: /s/ Nancy Martorano
--------------------
Title:
-----------------
7
Dates Referenced Herein
| Referenced-On Page |
|---|
| This ‘S-1’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| | 5/31/98 | | 1 | | | | | None on these Dates |
| Filed on: | | 5/20/96 |
| | 3/29/96 | | 1 | | 10 |
| | 4/12/95 | | 15 |
| List all Filings |
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Filing Submission 0000912057-96-010403 – Alternative Formats (Word / Rich Text, HTML, Plain Text, et al.)
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