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Teletech Holdings Inc – ‘10-Q’ for 9/30/03 – EX-10.5

On:  Wednesday, 11/5/03, at 4:02pm ET   ·   For:  9/30/03   ·   Accession #:  1047469-3-36150   ·   File #:  1-11919

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  As Of                Filer                Filing    For·On·As Docs:Size              Issuer               Agent

11/05/03  Teletech Holdings Inc             10-Q        9/30/03   13:1.1M                                   Merrill Corp/New/FA

Quarterly Report   —   Form 10-Q
Filing Table of Contents

Document/Exhibit                   Description                      Pages   Size 

 1: 10-Q        Quarterly Report                                    HTML    438K 
 2: EX-10.1     Material Contract                                   HTML     38K 
11: EX-10.10    Material Contract                                   HTML     89K 
 3: EX-10.2     Material Contract                                   HTML    129K 
 4: EX-10.3     Material Contract                                   HTML     35K 
 5: EX-10.4     Material Contract                                   HTML     34K 
 6: EX-10.5     Material Contract                                   HTML     68K 
 7: EX-10.6     Material Contract                                   HTML     25K 
 8: EX-10.7     Material Contract                                   HTML    116K 
 9: EX-10.8     Material Contract                                   HTML     61K 
10: EX-10.9     Material Contract                                   HTML    134K 
12: EX-31       Certification per Sarbanes-Oxley Act (Section 302)  HTML     17K 
13: EX-32       Certification per Sarbanes-Oxley Act (Section 906)  HTML     10K

EX-10.5   —   Material Contract
Exhibit Table of Contents

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11st Page   -   Filing Submission
"Exhibit 10.5
"Second Amendment
"EXHIBIT A CONFIRMATION Dated as of June 30, 2003
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Exhibit 10.5


SECOND AMENDMENT

        THIS SECOND AMENDMENT dated as of June 30, 2003 (this "Amendment") is executed in connection with the Credit Agreement dated as of October 29, 2002 (as previously amended, the "Credit Agreement") among TeleTech Holdings, Inc. (the "Borrower"), various financial institutions (the "Lenders") and Bank of America, N.A., as administrative agent (in such capacity, the "Administrative Agent"). Capitalized terms defined in the Credit Agreement are, unless otherwise defined herein or the context otherwise requires, used herein as defined therein.

        WHEREAS, the parties hereto desire to amend certain provisions of the Credit Agreement as more fully set forth herein;

        NOW, THEREFORE, the parties hereto agree as follows:

        SECTION 1    Amendments. Subject to the satisfaction of the conditions precedent set forth in Section 3, the Credit Agreement is amended as set forth below.

        1.1    Amendments to Section 1.01.    

        (i)    The definition of "Consolidated EBITDAR" is amended in its entirety to read as follows:

        (ii)   The definition of "Applicable Rate" is amended as follows:

Pricing Level
   Leverage Ratio
   Commitment Fee
   Eurodollar Rate +
Letters of Credit
   Base Rate +
1   <1.00:1   0.250%   1.250%   0.000%
2   >1.00:1 but <2.00:1   0.300%   1.500%   0.000%
3   >2.00:1 but <2.50:1   0.350%   1.750%   0.000%
4   >2.50:1 but <3.00:1   0.400%   2.000%   0.250%
5   >3.00:1   0.500%   2.500%   0.500%

        (iii)  The definition of Loan Documents is amended by inserting the phrase ", the Collateral Documents" after the phrase "the Fee Letter".

        (iv)  The following definitions are added in appropriate sequence:

2

        (iv)  The definition of "Domestic Tangible Assets" is deleted in its entirety.

        1.2    Amendment to Section 2.05.    The following new clauses (c) and (d) are added to Section 2.05 in appropriate sequence:

3

        1.3    Amendment to Section 2.06.    Section 2.06 is amended in its entirety to read as follows:

        1.4    Amendments to Section 4.02(d).    Section 4.02(d) is amended in its entirety to read as follows:

        1.5    Addition of Section 5.19.    The following Section 5.19 is added in appropriate sequence:

4

        1.6    Amendments to Section 6.02.    Section 6.02 is amended by (i) deleting the word "and" at the end of clause (f), (ii) redesignating clause "(g)" as clause "(h)" and (iii) inserting the following new clause (g): "(g) promptly after the Borrower has notified the Administrative Agent of any intention by the Borrower to treat the Loans and/or the Letters of Credit and related transactions as being a "reportable transaction" (within the meaning of Treasury Regulation Section 1.6011-4), a duly completed copy of IRS Form 8886 or any successor form; and".

        1.7    Amendments to Section 6.05.    Section 6.05 is amended by replacing the reference to "Section 7.03 or 7.04" with "Section 7.04".

        1.8    Amendment to Section 6.12.    Section 6.12 is restated in its entirety to read as follows:

        1.9    Addition of Section 6.13.    The following new Section 6.13 is added to the Credit Agreement in appropriate sequence:

        1.10    Amendment to Article VII.    The parenthetical clause in the first paragraph of Article VII is amended in its entirety to read as follows: "(or, in the case of Sections 7.04 through 7.08, 7.11, 7.13 and 7.14, any Subsidiary)".

        1.11    Amendment to Section 7.01.    Section 7.01 is amended by replacing the text of clause (j) with "[RESERVED]".

        1.12    Amendment to Section 7.02.    Section 7.02 is amended by:

5

        1.13    Amendment to Section 7.03.    Section 7.03 is amended by replacing the heading and the text thereof with "[RESERVED]".

        1.14    Amendment to Section 7.04.    Section 7.04 is amended by (i) deleting clause (f) in its entirety, (ii) deleting the semi-colon and the word "and" at the end of clause (e) and substituting a period therefor and (iii) inserting the following new text at the end of clause (d): "or pursuant to the Sale-Leaseback Transaction".

        1.15    Amendment to Section 7.09.    Section 7.09 is amended by (i) deleting the word "and" at the end of clause (b), (ii) deleting the period at the end of clause (c) and substituting a semi-colon followed by the word "and" therefor and (iii) inserting the following new clause (d): "(d) the lease entered into pursuant to the Sale-Leaseback Transaction."

        1.16    Amendments to Section 7.10.    Section 7.10 is amended in its entirety to read as follows:

Computation Period(s) Ending
   Minimum Fixed Charge Coverage Ratio
6/30/03 through 12/31/03   2.00 to 1.0
3/31/04   2.25 to 1.0
6/30/04 and thereafter   2.50 to 1.0.

6

Computation Periods Ending
   Maximum Leverage Ratio
6/30/03 through 12/31/03   3.25 to 1.0
3/31/04 through 9/30/04   3.00 to 1.0
12/31/04 and thereafter   2.75 to 1.0.

        1.17    Amendment to Section 7.12.    Section 7.12 is amended in its entirety to read as follows:

7

        1.18    Addition of Sections 7.13 and 7.14.    The following new Sections 7.13 and 7.14 are added to the Credit Agreement in appropriate sequence:

        1.19    Amendment to Section 10.08.    Section 10.08 is amended by inserting the following sentence at the end thereof: "Notwithstanding anything herein to the contrary, "Information" shall not include, and the Administrative Agent and each Lender may disclose without limitation of any kind, any information with respect to the "tax treatment" and "tax structure" (in each case, within the meaning of Treasury Regulation Section 1.6011-4) of the transactions contemplated hereby and all materials of any kind (including opinions or other tax analyses) that are provided to the Administrative Agent or such Lender relating to such tax treatment and tax structure; provided that with respect to any document or similar item that in either case contains information concerning the tax treatment or tax structure of the transaction as well as other information, this sentence shall only apply to such portions of the document or similar item that relate to the tax treatment or tax structure of the transactions contemplated hereby."

8

        SECTION 2 Representations and Warranties. The Borrower represents and warrants to the Administrative Agent and the Lenders that, after giving effect to the effectiveness of the amendments set forth in Section 1 above, (a) each warranty set forth in Article 5 of the Credit Agreement is true and correct as of the date of the execution and delivery of this Amendment by the Borrower, with the same effect as if made on such date, and (b) no Default exists.

        SECTION 3 Effectiveness. The amendments set forth in Section 1 shall become effective as of June 30, 2003 when the Administrative Agent has received:

        SECTION 4 Miscellaneous.

        4.1    Continuing Effectiveness, etc.    As herein amended, the Credit Agreement shall remain in full force and effect and is hereby ratified and confirmed in all respects. After the effectiveness of this Amendment, all references in the Credit Agreement and the other Loan Documents to "Credit Agreement" or similar terms shall refer to the Credit Agreement as amended hereby.

        4.2    Counterparts.    This Amendment may be executed in any number of counterparts and by the different parties on separate counterparts, and each such counterpart shall be deemed to be an original but all such counterparts shall together constitute one and the same Amendment.

        4.3    Governing Law.    This Amendment shall be a contract made under and governed by the laws of the State of New York applicable to contracts made and to be performed entirely within such state.

        4.4    Successors and Assigns.    This Amendment shall be binding upon the Borrower, the Lenders and the Administrative Agent and their respective successors and assigns, and shall inure to the benefit of the Borrower, the Lenders and the Administrative Agent and the respective successors and assigns of the Lenders and the Administrative Agent.

        4.5    Delivery of Collateral Documents and Intercreditor Agreement.    Notwithstanding anything contained in the Credit Agreement to the contrary, an immediate Event of Default shall exist if the Borrower fails to deliver, or cause to be delivered, to the Administrative Agent (a) on or prior to August 25, 2003, a copy of the resolutions of the Board of Directors of the Borrower and the Guarantors authorizing the transactions contemplated by the Collateral Documents, and (b) on or prior to September 30, 2003, executed counterparts of the Security Agreement, the Pledge Agreement, the Mortgage and the Intercreditor Agreement and an opinion of counsel to the Borrower and the Guarantors, in form and substance reasonably acceptable to the Administrative Agent.

9


        Delivered as of the day and year first above written.


 
 
TELETECH HOLDINGS, INC.

 
 
By:
  
    Name Printed:   
    Title:   

 
 
BANK OF AMERICA, N.A., as Administrative Agent

 
 
By:
  
    Name Printed:   
    Title:   

 
 
BANK OF AMERICA, N.A., as a Lender

 
 
By:
  
    Name Printed:   
    Title:   

 
 
CIBC INC.

 
 
By:
  
    Name Printed:   
    Title:   

 
 
THE NORTHERN TRUST COMPANY

 
 
By:
  
    Name Printed:   
    Title:   

10


 
 
WACHOVIA BANK, NATIONAL ASSOCIATION

 
 
By:
  
    Name Printed:   
    Title:   

 
 
KEY CORPORATE CAPITAL, INC.

 
 
By:
  
    Name Printed:   
    Title:   

11


EXHIBIT A
CONFIRMATION
Dated as of June 30, 2003

To:
Bank of America, N.A., individually and as Administrative Agent, and the other financial institutions party to the Credit Agreement referred to below

        Please refer to (a) the Credit Agreement dated as of October 29, 2002 (as amended prior to the date hereof, the "Credit Agreement") among TeleTech Holdings, Inc., various financial institutions (the "Lenders") and Bank of America, N.A., as administrative agent (in such capacity, the "Administrative Agent"); (b) the Guaranty as defined in the Credit Agreement; and (c) the Second Amendment dated as of June 30, 2003 (the "Amendment") to the Credit Agreement.

        Each of the undersigned hereby confirms to the Administrative Agent and the Lenders on the date hereof that, after giving effect to the Amendment and the transactions contemplated thereby, the Guaranty continues in full force and effect and is the legal, valid and binding obligation of such undersigned, enforceable against such undersigned in accordance with its terms.


 
 
TELETECH SERVICES CORPORATION
TELETECH CUSTOMER CARE MANAGEMENT (WEST VIRGINIA), INC.
TELETECH CUSTOMER CARE MANAGEMENT (COLORADO), INC.
TELETECH FACILITIES MANAGEMENT (PARCEL CUSTOMER SUPPORT), INC.
TELETECH FACILITIES MANAGEMENT (POSTAL CUSTOMER SUPPORT), INC.
TELETECH CUSTOMER CARE MANAGEMENT (TELECOMMUNICATIONS), INC.
TELETECH CUSTOMER CARE MANAGEMENT, INC.
TELETECH FINANCIAL SERVICES MANAGEMENT, LLC
TELETECH CUSTOMER CARE MANAGEMENT (CALIFORNIA), INC.
TELETECH CUSTOMER CARE MANAGEMENT (PENNSYLVANIA), LLC
CARABUNGA.COM, INC.

 
 
By:
    Name Printed:
    Title:

 
 
NEWGEN RESULTS CORPORATION

 
 
By:
    Name Printed:
    Title:

12


 
 
TELETECH CUSTOMER SERVICES, INC.
TTEC NEVADA, INC.

 
 
By:
    Name Printed:
    Title:

13



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SECOND AMENDMENT
EXHIBIT A CONFIRMATION Dated as of June 30, 2003

Dates Referenced Herein   and   Documents Incorporated by Reference

This ‘10-Q’ Filing    Date    Other Filings
6/30/0410-Q,  10-Q/A,  3,  4
Filed on:11/5/038-K
For Period End:9/30/03
8/25/03
8/13/03
8/12/03
7/31/03
6/30/0310-Q
12/31/0210-K,  5
10/29/02
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Filing Submission 0001047469-03-036150   –   Alternative Formats (Word / Rich Text, HTML, Plain Text, et al.)
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