EXHIBIT 10.2
AMENDMENT NO. 5 AND WAIVER
THIS AMENDMENT NO. 5 AND WAIVER, dated as of April 19, 2007 (this
"Amendment"), of that certain Credit Agreement referenced below is by and among
PREMIERE GLOBAL SERVICES, INC., a Georgia corporation formerly known as PTEK
Holdings, Inc. (the "Borrower"), the Guarantors and the Lenders identified on
the signature pages hereto and BANK OF AMERICA, N.A., as Administrative Agent.
Capitalized terms used but not otherwise defined herein shall have the meanings
provided in the Credit Agreement.
W I T N E S S E T H
WHEREAS, a $300 million revolving credit facility has been established
in favor of the Borrower pursuant to the terms of that certain Credit Agreement,
dated as of June 30, 2004 (as amended and modified, the "Credit Agreement"),
among the Borrower, the Guarantors and Lenders identified therein and Bank of
America, N.A., as Administrative Agent;
WHEREAS, the Borrower has requested amendment of the Credit Agreement;
WHEREAS, the Lenders have agreed to the requested amendment on the
terms and conditions set forth herein;
NOW, THEREFORE, in consideration of these premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
1. Waiver. The provisions of Section 7.01(c) of the Credit Agreement
call for delivery of financial projections within 30 days of the beginning of
each fiscal year. The Borrower did not provide financial projections for the
current fiscal year until April 3, 2007. The Required Lenders hereby waive any
Event of Default that exists or may have existed under Section 7.01(c) of the
Credit Agreement on account of the delinquency in delivery of the final
projections for the 2007 fiscal year.
2. Amendment of the Credit Agreement. The Credit Agreement is hereby
amended as follows:
2.1 In Section 1.01 (Defined Terms), the definition of
"Applicable Percentage" is amended to include, among other things, a new pricing
tier, as follows:
"Applicable Percentage" means the following percentages per
annum, based on the Consolidated Total Leverage Ratio determined as of
the last day of the immediately preceding fiscal quarter:
- ----------------------------------------------------------------------------------------------------------------------------
Revolving Loans and Letters of Credit
- ----------------------------------------------------------------------------------------------------------------------------
Pricing Consolidated Total Leverage Ratio Eurocurrency Rate Loans Base Rate Commitment
Level and Letters of Credit Loans Fee
- ----------------------------------------------------------------------------------------------------------------------------
1 Less than 1.0 to 1.0 0.875% 0.000% 0.150%
2 Less than 1.5 to 1.0 but greater than or equal to 1.0 to 1.0 1.000% 0.000% 0.175%
3 Less than 2.0 to 1.0 but greater than or equal to 1.5 to 1.0 1.250% 0.000% 0.225%
4 Less than 2.5 to 1.0 but greater than or equal to 2.0 to 1.0 1.500% 0.000% 0.275%
5 Greater than or equal to 2.5 to 1.0 1.750% 0.000% 0.325%
Any increase or decrease in the Applicable Percentage resulting from a
change in the Consolidated Total Leverage Ratio shall become effective
not later than the date five Business Days immediately following the
date a Compliance Certificate is required to be delivered pursuant to
Section 7.02(a); provided, however, that if a Compliance Certificate is
not delivered when due in accordance therewith, then Pricing Level 5
shall apply as of the first Business Day after the date on which such
Compliance Certificate was required to have been delivered until the
date not later than five Business Days immediately following delivery
thereof. Determinations by the Administrative Agent of the appropriate
Pricing Level shall be conclusive absent manifest error.
2.2 In Section 1.01 (Defined Terms), the following
definition is added:
"2007 Share Repurchase Program" has the meaning provided in
Section 8.06(e)(i).
2.3 Clause (i) of Section 8.06(e) is amended and restated in
its entirety to read as follows:
(i) the Borrower may declare or pay cash dividends to its
stockholders and purchase, redeem or otherwise acquire shares of its
Capital Stock or warrants, rights or options to acquire any such shares
for cash solely; provided that
(A) all such dividends or acquisition of shares for
cash in any period of four consecutive fiscal quarters
(including the fiscal quarter in which any such dividend or
acquisition may be made and excluding amounts paid under the
2007 Share Repurchase Program under clause (C) below) shall
not exceed an amount equal to sixty-six and two thirds percent
(66.667%) of Consolidated EBITDA for the period of four
consecutive fiscal quarters as of the last day of the fiscal
quarter most recently ended, if the Consolidated Total
Leverage Ratio, on a Pro Forma Basis, is less than 2.75 to
1.0;
(B) the Borrower may make additional dividends or
acquisitions of shares for cash in connection with the
issuance of Subordinated Debt otherwise permitted hereunder,
in an amount up to thirty-five percent (35%) of the Net Cash
Proceeds received therefrom, so long as the maturity of the
subject Subordinated Debt is at least 180 days beyond the
Revolving Termination Date then applicable hereunder and the
dividend is made or the shares are acquired substantially
concurrently with the issuance of the subject Subordinated
Debt; and
(C) during the period from April 1, 2007 until
December 31, 2007, the Borrower may purchase, redeem or
otherwise acquire shares of its Capital Stock in an aggregate
amount up to $150 million (the "2007 Share Repurchase
Program"), notwithstanding the foregoing provisions hereof or
anything else herein to the contrary, provided that the
Borrower will be in compliance with the financial covenants in
Section 8.12 after giving effect thereto on a Pro Forma Basis;
2.4 Subsections (a) relating to maintenance of a minimum
Consolidated Net Worth and (c) relating to maintenance of a maximum Consolidated
Total Leverage Ratio of Section 8.12 (Financial Covenants) are amended to read
as follows:
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(a) Consolidated Net Worth. Permit Consolidated Net Worth as
of the end of each fiscal quarter to be less than the sum of (i) $228
million (excluding, for purposes hereof, the effect of the 2007 Share
Repurchase Program to the extent permitted under Section 8.06(e)(i)
herein), plus (ii) as of the end of each fiscal quarter after the
Amendment No. 3 Effectiveness Date, an amount equal to 50% of
Consolidated Net Income for the fiscal quarter then ended (but not less
than zero and with no deduction for net losses), such increases to be
cumulative, plus (iii) an amount equal to 75% of the Net Cash Proceeds
received from Equity Transactions occurring after the Amendment No. 3
Effectiveness Date.
(c) Consolidated Total Leverage Ratio. Permit the Consolidated
Total Leverage Ratio as of the end of any fiscal quarter of the
Borrower to be greater than 3.25 to 1.0.
3. Conditions Precedent. This Amendment shall be effective upon (i)
receipt by the Administrative Agent of duly executed counterparts of this
Amendment from the Credit Parties and Required Lenders, and (ii) payment of fees
and expenses payable pursuant to Section 6 in connection with this Amendment.
4. Guarantor Acknowledgment. Each Guarantor acknowledges and consents
to all of the terms and conditions of this Amendment and agrees that this
Amendment and all documents executed in connection herewith do not operate to
reduce or discharge any Guarantor's obligations under the Credit Documents.
5. Full Force and Effect. Except as modified hereby, all of the terms
and provisions of the Credit Agreement and the other Credit Documents (including
schedules and exhibits thereto) shall remain in full force and effect.
6. Expenses. The Borrower agrees to pay all reasonable costs and
expenses of the Administrative Agent in connection with the preparation,
execution and delivery of this Amendment, including the reasonable fees and
expenses of Moore & Van Allen, PLLC.
7. Counterparts. This Amendment may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed an
original, and it shall not be necessary in making proof of this Amendment to
produce or account for more than one such counterpart. Delivery by any party
hereto of an executed counterpart of this Amendment by facsimile shall be
effective as such party's original executed counterpart and shall constitute a
representation that such party's original executed counterpart will be
delivered.
8. Governing Law. This Amendment shall be governed by, and construed
in accordance with, the law of the State of New York.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart
of this Amendment to be duly executed and delivered as of the date first above
written.
BORROWER: PREMIERE GLOBAL SERVICES, INC., a Georgia corporation
- --------
By: /s/ L. Scott Askins
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Name: L. Scott Askins
Title: SVP-Legal
GUARANTORS: AMERICAN TELECONFERENCING SERVICES, LTD.,
- ---------- a Missouri corporation
PREMIERE CONFERENCING NETWORKS, INC., a Georgia corporation
PTEK SERVICES, INC., a Delaware corporation
XPEDITE NETWORK SERVICES, INC., a Georgia corporation
XPEDITE SYSTEMS WORLDWIDE, INC., a Delaware corporation
ACCUCAST, INC., a Georgia corporation
NETSPOKE, INC., a Delaware corporation
IMEET, INC., a Delaware corporation
COMMUNICATIONS NETWORK ENHANCEMENT INC.,
a Delaware corporation
By: /s/ L. Scott Askins
-------------------------------------------------------
Name: L. Scott Askins
Title: SVP-Legal
XPEDITE SYSTEMS, LLC, a Delaware limited liability company
By: PREMIERE GLOBAL SERVICES, INC., its sole Member
By: /s/ L. Scott Askins
--------------------------------------------------
Name: L. Scott Askins
Title: SVP-Legal
ADMINISTRATIVE AGENT: BANK OF AMERICA, N.A.,
- -------------------- as Administrative Agent and Collateral Agent
By: /s/ Anne Zeschke
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Name: Anne Zeschke
Title: Assistant Vice President
LENDERS: BANK OF AMERICA, N.A.,
- ------- as L/C Issuer, Swingline Lender and as a Lender
By:/s/ Ken Bauchle
-----------------------------------------
Name: Ken Bauchle
Title: Senior Vice President
LASALLE BANK NATIONAL ASSOCIATION
By: /s/ James J. Hess
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Name: James J. Hess
Title: Senior Vice President
WACHOVIA BANK, NATIONAL ASSOCIATION
By: /s/ Karin E. Samuel
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Name: Karin E. Samuel
Title: Vice President
HSBC BANK USA, NATIONAL ASSOCIATION
By:
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Name:
Title:
COMERICA BANK
By: /s/ Richard C. Hampson
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Name: Richard C. Hampson
Title: Vice President
SUNTRUST BANK
By: /s/ Stacy M. Lewis
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Name: Stacy M. Lewis
Title: Vice President
UNITED OVERSEAS BANK LIMITED, NEW YORK AGENCY
By:
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Name:
Title:
By:
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Name:
Title:
GENERAL ELECTRIC CAPITAL CORPORATION
By:
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Name:
Title:
FIRST HORIZON BANK, A DIVISION OF FIRST
TENNESSEE BANK NATIONAL ASSOCIATION
By:
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Name:
Title:
MB FINANCIAL BANK, N.A. (f/n/a Oak Brook Bank)
By: /s/ Henry Wessel
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Name: Henry Wessel
Title: Vice President
AIB DEBT MANAGEMENT LIMITED
By: /s/ Shreya Shah
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Name: Shreya Shah
Title: Vice President
Investment Advisor to AIB Debt Management
Limited
By: /s/ Gregory J. Wiske
-------------------------------
Name: Gregory J. Wiske
Title: Vice President
Investment Advisor to AIB Debt Management
Limited