exv10w1



 





Exhibit 10.1




SECOND AMENDMENT AGREEMENT




     This SECOND AMENDMENT AGREEMENT (this “Amendment”) is made as of the 15th day of
November, 2007 among:




     (a) TELETECH HOLDINGS, INC., a Delaware corporation (“Borrower”);




     (b) the Lenders, as defined in the Credit Agreement;




     (c) KEYBANK NATIONAL ASSOCIATION, as the lead arranger, sole book runner and
administrative agent for the Lenders under this Agreement (“Agent”); and




     (d) WELLS FARGO BANK, N.A., as syndication agent.



     WHEREAS, Borrower, Agent and the Lenders are parties to that certain Amended and Restated
Credit Agreement, dated as of September 28, 2006, that provides, among other things, for loans and
letters of credit aggregating One Hundred Eighty Million Dollars ($180,000,000), all upon certain
terms and conditions (as amended and as the same may from time to time be further amended, restated
or otherwise modified, the “Credit Agreement”);



     WHEREAS, Borrower, Agent and the Lenders desire to amend the Credit Agreement to modify
certain provisions thereof;



     WHEREAS, each capitalized term used herein and defined in the Credit Agreement, but not
otherwise defined herein, shall have the meaning given such term in the Credit Agreement; and



     WHEREAS, unless otherwise specifically provided herein, the provisions of the Credit Agreement
revised herein are amended effective as of the date of this Amendment;



     NOW, THEREFORE, in consideration of the premises and of the mutual covenants herein and for
other valuable consideration, Borrower, Agent and the Lenders agree as follows:



     1. Amendment to Financial Statements. Section 5.3 of the Credit Agreement is hereby
amended to delete subsection (a) therefrom and to insert in place thereof the following:




     (a) Quarterly Financials. Borrower shall deliver to Agent, within forty-five
(45) days (or one hundred eighty-three (183) days with respect to the fiscal quarter of
Borrower ended September 30, 2007) after the end of each of the first three quarter annual
periods of each fiscal year of Borrower, balance sheets of the Companies as of the end of
such period and statements of income (loss), stockholders’ equity and cash flow for the
quarter and fiscal year to date periods, all prepared on a Consolidated basis, in accordance
with GAAP, and in form and detail satisfactory to Agent and certified by a Financial Officer
of Borrower; provided that, with respect to the fiscal quarter of Borrower ended September
30, 2007, (i) Borrower shall have delivered preliminary financial statements and a
corresponding preliminary calculation of covenants for such



 









 







quarter prior to November 30, 2007, in each case excluding adjustments related to
compensation expense for equity-based compensation granted during any prior fiscal quarter,
or which may be adjusted for the fiscal quarter ended September 30, 2007, (ii) the
Applicable Commitment Fee Rate and the Applicable Margin shall be calculated based upon such
preliminary financial statements and calculations, and (iii) if such preliminary financial
statements and calculations are not consistent with the certified financial statements to be
delivered on or prior to March 31, 2008, the Applicable Commitment Fee Rate and the
Applicable Margin, as applicable, shall be retroactively adjusted upon receipt of the
certified financial statements.



     2. Consent to Various Requests.




     (a) Requested Consents. Borrower has notified Agent and the Lenders that:




     (i) Borrower may need to file its 10-Q quarterly report with the SEC for the
fiscal quarter ended September 30, 2007 as late as March 31, 2008 (the “Delayed 10-Q
Filing”);




     (ii) Borrower may need to restate its financial statements filed with the SEC
for any fiscal period ending after December 31, 1998 and prior to September 30, 2007
(the “Restatement of Financial Statements”); and




     (iii) on November 14, 2007, Borrower received a Nasdaq Staff Determination
letter from The Nasdaq Stock Market (“Nasdaq”) indicating that Borrower’s securities
are subject to delisting from the Nasdaq Global Market because Borrower has not yet
filed its 10-Q quarterly report for the fiscal quarter ended September 30, 2007 (the
“Nasdaq Proceeding” and, together with the Delayed 10-Q Filing and the Restatement
of Financial Statements, collectively, the “Requested Consents”).




     (b) Possible Violations. The Requested Consents could result in a violation of
the following:




     (i) SEC and Nasdaq regulations;




     (ii) certain covenants set forth in Article V of the Credit Agreement,
including, but not limited to, Section 5.3 (Financial Statements and Information),
Section 5.4 (Financial Records) and Section 5.7 (Financial Covenants) of the Credit
Agreement; and




     (iii) certain representations and warranties set forth in Article VI of the
Credit Agreement, including, but not limited to, Section 6.3 (Compliance with Laws
and Contracts), Section 6.4 (Litigation and Administrative Proceedings) and Section
6.14 (Financial Statements) of the Credit Agreement.




     (c) Conditions to Consent. Agent and the Lenders hereby consent to the
Requested Consents on the conditions that:



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     (i) Borrower shall have filed with the SEC its 10-Q quarterly report for the
fiscal quarter ending September 30, 2007 no later than March 31, 2008;




     (ii) to the extent that the Restatement of Financial Statements would have
caused Borrower to pay a higher rate of interest for any time period since the
Closing Date, then Borrower shall make the Lenders whole for any unpaid interest;
and




     (iii) after giving effect to the terms of this consent, no Default or Event of
Default shall exist under the Credit Agreement or any other Loan Document.




     (d) Consent. This Amendment shall serve as evidence of such consent. The
consent contained in this Amendment shall not be deemed to waive or amend any other
provision of the Credit Agreement or the Loan Documents, and shall not serve as consent to
or amendment of any other matter prohibited by the terms and conditions of the Credit
Agreement or other Loan Documents. All terms of the Credit Agreement and the other Loan
Documents remain in full force and effect and constitute the legal, valid, binding and
enforceable obligations of Borrower to Agent and the Lenders.



     3. Closing Deliveries. Concurrently with the execution of this Amendment, Borrower
shall:




     (a) cause each Guarantor of Payment to execute the attached Acknowledgement and
Agreement; and




     (b) pay all legal fees and expenses of Agent in connection with this Amendment.



     4. Representations and Warranties. Borrower hereby represents and warrants to Agent
and the Lenders that (a) Borrower has the legal power and authority to execute and deliver this
Amendment; (b) the officers executing this Amendment have been duly authorized to execute and
deliver the same and bind Borrower with respect to the provisions hereof; (c) the execution and
delivery hereof by Borrower and the performance and observance by Borrower of the provisions hereof
do not violate or conflict with the organizational agreements of Borrower or any law applicable to
Borrower or result in a breach of any provision of or constitute a default under any other
agreement, instrument or document binding upon or enforceable against Borrower; (d) no Default or
Event of Default exists under the Credit Agreement, nor will any occur immediately after the
execution and delivery of this Amendment or by the performance or observance of any provision
hereof; (e) Borrower is not aware of any claim or offset against, or defense or counterclaim to,
Borrower’s obligations or liabilities under the Credit Agreement or any Related Writing; and (f)
this Amendment constitutes a valid and binding obligation of Borrower in every respect, enforceable
in accordance with its terms.



     5. References to Credit Agreement. Each reference that is made in the Credit
Agreement or any Related Writing shall hereafter be construed as a reference to the Credit
Agreement as amended hereby. Except as herein otherwise specifically provided, all terms and



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provisions of the Credit Agreement are confirmed and ratified and shall remain in full force
and effect and be unaffected hereby. This Amendment is a Related Writing.



     6. Waiver. Borrower, by signing below, hereby waives and releases Agent and each of
the Lenders, and their respective directors, officers, employees, attorneys, affiliates and
subsidiaries, from any and all claims, offsets, defenses and counterclaims of which Borrower is
aware, such waiver and release being with full knowledge and understanding of the circumstances and
effect thereof and after having consulted legal counsel with respect thereto.



     7. Counterparts. This Amendment may be executed in any number of counterparts, by
different parties hereto in separate counterparts and by facsimile signature, each of which when so
executed and delivered shall be deemed to be an original and all of which taken together shall
constitute but one and the same agreement.



     8. Headings. The headings, captions and arrangements used in this Amendment are for
convenience only and shall not affect the interpretation of this Amendment.



     9. Severability. Any term or provision of this Amendment held by a court of competent
jurisdiction to be invalid or unenforceable shall not impair or invalidate the remainder of this
Amendment and the effect thereof shall be confined to the term or provision so held to be invalid
or unenforceable.



     10. Governing Law. The rights and obligations of all parties hereto shall be governed
by the laws of the State of Ohio, without regard to principles of conflicts of laws.



[Remainder of page intentionally left blank.]





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     JURY TRIAL WAIVER. BORROWER, THE LENDERS AND AGENT, TO THE EXTENT PERMITTED BY LAW,
EACH HEREBY WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING
IN CONTRACT, TORT OR OTHERWISE, AMONG BORROWER, THE LENDERS AND AGENT, OR ANY THEREOF, ARISING OUT
OF, IN CONNECTION WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN
CONNECTION WITH THIS AMENDMENT OR ANY NOTE OR OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR
DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS RELATED THERETO.



     IN WITNESS WHEREOF, the parties have executed and delivered this Amendment as of the date
first set forth above.



	 	 	 	 	 
	 	TELETECH HOLDINGS, INC.

 	 
	 	By:  	/s/ Alan Schutzman
 	 
	 	 	Alan Schutzman 	 
	 	 	Secretary 	 
	 
	 	KEYBANK NATIONAL ASSOCIATION,

as Agent and as a Lender

 	 
	 	By:  	/s/ Jeff Kalinowski
 	 
	 	 	Jeff Kalinowski 	 
	 	 	Senior Vice President 	 
	 
	 	WELLS FARGO BANK, N.A.,

as Syndication Agent and as a Lender

 	 
	 	By:  	/s/ Joseph Gayan
 	 
	 	 	Joseph Gayan 	 
	 	 	Vice President 	 
	 
	 	JPMORGAN CHASE BANK, N.A.

 	 
	 	By:  	/s/ Brian McDougal
 	 
	 	 	Brian McDougal 	 
	 	 	Vice President 	 




Signature Page 1 of 2
to Second Amendment Agreement









 





	 	 	 	 	 
	 	BANK OF AMERICA, N.A.

 	 
	 	By:  	/s/ Jonathan M. Phillips
 	 
	 	 	Jonathan M. Phillips 	 
	 	 	Vice President 	 
	 
	 	WACHOVIA BANK, NATIONAL
ASSOCIATION

 	 
	 	By:  	/s/ Kathleen H. Reedy
 	 
	 	 	Kathleen H. Reedy 	 
	 	 	Managing Director 	 
	 
	 	THE NORTHERN TRUST COMPANY

 	 
	 	By:  	/s/ Brandon Roleck
 	 
	 	 	Brandon Rolek 	 
	 	 	Vice President 	 




Signature Page 2 of 2
to Second Amendment Agreement









 








ACKNOWLEDGMENT AND AGREEMENT





     The undersigned consent and agree to and acknowledge the terms of the foregoing Second
Amendment Agreement dated as of November 15, 2007. The undersigned further agree that the
obligations of the undersigned pursuant to the Guaranty of Payment executed by the undersigned
shall remain in full force and effect and be unaffected hereby.



     The undersigned hereby waive and release Agent and the Lenders and their respective directors,
officers, employees, attorneys, affiliates and subsidiaries from any and all claims, offsets,
defenses and counterclaims of which the undersigned are aware, such waiver and release being with
full knowledge and understanding of the circumstances and effect thereof and after having consulted
legal counsel with respect thereto.



     JURY TRIAL WAIVER. THE UNDERSIGNED, TO THE EXTENT PERMITTED BY LAW, HEREBY WAIVE ANY
RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT OR
OTHERWISE, AMONG BORROWER, AGENT, THE LENDERS AND THE UNDERSIGNED, OR ANY THEREOF, ARISING OUT OF,
IN CONNECTION WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN
CONNECTION WITH THIS AMENDMENT OR ANY NOTE OR OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR
DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS RELATED THERETO.



	 	 	 	 	 	 	 	 	 	 	 
	TELETECH SERVICES CORPORATION	 	 	 	TELETECH CUSTOMER CARE MANAGEMENT

(COLORADO), LLC	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By:

	 	/s/ Alan Schutzman
	 	 	 	By:
	 	/s/ Alan Schutzman	 	 
	 

	 	 
	 	 	 	 	 	 	 	 
	 

	 	Alan Schutzman
	 	 	 	 	 	Alan Schutzman	 	 
	 

	 	Assistant Secretary
	 	 	 	 	 	Assistant Secretary	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	TELETECH CUSTOMER CARE MANAGEMENT
(WEST VIRGINIA), INC.	 	 	 	TELETECH GOVERNMENT SOLUTIONS, LLC	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By:

	 	/s/ Alan Schutzman
	 	 	 	By:
	 	/s/ Alan Schutzman	 	 
	 

	 	 
	 	 	 	 	 	 	 	 
	 

	 	Alan Schutzman
	 	 	 	 	 	Alan Schutzman	 	 
	 

	 	Assistant Secretary
	 	 	 	 	 	Assistant Secretary	 	 






Signature Page 1 of 2
to Acknowledgment and Agreement









 





	 	 	 	 	 	 	 	 	 	 	 
	TELETECH CUSTOMER SERVICES, INC.	 	 	 	TTEC NEVADA, INC.	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By:

	 	/s/ Alan Schutzman
	 	 	 	By:
	 	/s/ Alan Schutzman	 	 
	 

	 	 
	 	 	 	 	 	 	 	 
	 

	 	Alan Schutzman
	 	 	 	 	 	Alan Schutzman	 	 
	 

	 	Assistant Secretary
	 	 	 	 	 	Assistant Secretary	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	TELETECH INTERNATIONAL HOLDINGS, INC.	 	 	 	NEWGEN RESULTS CORPORATION	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By:

	 	/s/ Alan Schutzman
	 	 	 	By:
	 	/s/ Alan Schutzman	 	 
	 

	 	 
	 	 	 	 	 	 	 	 
	 

	 	Alan Schutzman
	 	 	 	 	 	Alan Schutzman	 	 
	 

	 	Assistant Secretary
	 	 	 	 	 	Assistant Secretary	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	DIRECT ALLIANCE CORPORATION	 	 	 	TELETECH STOCKTON, LLC	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By:

	 	/s/ Alan Schutzman
	 	 	 	By:
	 	/s/ Alan Schutzman	 	 
	 

	 	 
	 	 	 	 	 	 	 	 
	 

	 	Alan Schutzman
	 	 	 	 	 	Alan Schutzman	 	 
	 

	 	Assistant Secretary
	 	 	 	 	 	Assistant Secretary	 	 







Signature Page 2 of 2
to Acknowledgment and Agreement