EXHIBIT 10.65
AMENDMENT NO. 2 AND WAIVER
THIS AMENDMENT NO. 2 AND WAIVER, dated as of August 3, 2005 (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 $180 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 certain waivers, consents and
modifications to the terms of the Credit Agreement; and
WHEREAS, the Lenders have agreed to the requested waivers, consents and
modifications 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. CONSENTS AND WAIVERS.
1.1 I-MEDIA SA. The provisions of Section 7.14 of the Credit
Agreement require a pledge of the stock of 65% of the capital stock of
Material Foreign Subsidiaries, together with legal opinions and other
deliveries, within 60 days of any such Foreign Subsidiary becoming a
Material Foreign Subsidiary. I-Media SA, a French corporation ("I-MEDIA"),
is Material Foreign Subsidiary and, as such, the Borrower is required to
make a pledge of 65% of the capital stock of I-Media in accordance with
the provisions of Section 7.14 of the Credit Agreement. The Required
Lenders hereby (A) consent to extension of the pledge delivery date for
the capital stock of I-Media to August 31, 2005, (B) waive the requirement
for delivery of an opinion of local counsel in connection therewith, and
(C) waive any Event of Default that exists or may have existed under
Section 7.14 of the Credit Agreement on account of a failure to timely
pledge the capital stock of I-Media to the date hereof.
1.2 INTELLIGENT MEETINGS CORPORATION ACQUISITION. The provisions
of Section 8.02(h) require delivery of an officer's compliance certificate
not later than 10 Business Days following consummation of a Permitted
Acquisition. On June 1, 2005, American Teleconferencing Services, Ltd.
acquired substantially all of the assets of Intelligent Meetings
Corporation for a purchase price of approximately $6.1 million (the "IMC
ACQUISITION"). The Borrower failed to timely deliver an officer's
compliance certificate in connection with the subject acquisition. The
Required Lenders hereby (A) consent to extension of the delivery date for
the officer's compliance certificate for the IMC Acquisition to July 26,
2005, the date on which such certificate was received by the
Administrative Agent, and (B) waive any Event of Default that exists or
may have existed under Section 8.02(h) of the Credit Agreement on account
of a failure to timely deliver the officer's compliance certificate for
the IMC Acquisition.
2. AMENDMENTS TO THE CREDIT AGREEMENT. The Credit Agreement is amended
in the following respects:
2.1 The first sentence in Section 7.14 is amended to read as
follows:
Pledge or cause to pledged to the Collateral Agent to secure
the Obligations
(a) 100% of the issued and outstanding Capital Stock
of each Domestic Subsidiary that holds assets in excess of
$100,000, within thirty (30) days of (i) in the case of the
formation of, an acquisition by or investment in a Domestic
Subsidiary that is or will thereupon become subject to the
provisions hereof, the date of formation, acquisition or
investment, or (ii) in all other cases, the date by which the
quarterly Compliance Certificate is due for any fiscal quarter
in which any such Domestic Subsidiary shall otherwise become
subject to the provisions hereof; and
(b) 65% of the issued and outstanding Capital Stock of
each Material Foreign Subsidiary, within sixty (60) days of
(i) in the case of the formation of, an acquisition by or
investment in a Foreign Subsidiary that is or will thereupon
become a Material Foreign Subsidiary, the date of formation,
acquisition or investment, or (ii) in all other cases, the
date by which the quarterly Compliance Certificate is due for
any fiscal quarter in which any such Material Foreign
Subsidiary shall otherwise become subject to the provisions
hereof,
in each case pursuant to the Pledge Agreement or pledge joinder
agreements, together with opinions of counsel and any filings and
deliveries reasonably requested by the Collateral Agent in
connection therewith to perfect the security interests therein, all
in form and substance reasonably satisfactory to the Administrative
Agent.
3. CONDITIONS PRECEDENT. This Amendment shall be effective immediately
upon receipt by the Agent of all of the following, each in form and
substance satisfactory to the Administrative Agent and the Lenders:
(a) EXECUTED AMENDMENT. Counterparts of this Amendment duly
executed by the Credit Parties and the Required Lenders.
4. EFFECTIVENESS OF AMENDMENT. On and after the date hereof, all
references to the Credit Agreement in each of the Credit Documents shall
hereafter mean the Credit Agreement as amended by this Amendment. Except as
specifically amended hereby or otherwise agreed, the Credit Agreement is hereby
ratified and confirmed and shall remain in full force and effect according to
its terms.
5. REPRESENTATIONS AND WARRANTIES; DEFAULTS. The Credit Parties affirm
the following:
(a) all necessary action to authorize the execution, delivery and
performance of this Amendment has been taken;
(b) after giving effect to this Amendment, the representations and
warranties set forth in the Credit Agreement and the other Credit
Documents are true and correct in all material respects as of the date
hereof (except those which expressly relate to an earlier period); and
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(c) except with respect to the events subject to waiver as set
forth in Section 1 above, before and after giving effect to this
Amendment, no Default or Event of Default shall exist.
6. 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.
7. 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.
8. 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 ▇▇▇▇▇ & ▇▇▇ ▇▇▇▇▇, PLLC.
9. 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.
10. GOVERNING LAW. This Amendment shall be deemed to be a contract made
under, and for all purposes shall be construed in accordance with, the laws of
the State of New York applicable to agreements made and to be performed entirely
within such state.
[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.,
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a Georgia corporation formerly known as
PTEK Holdings, Inc.
By: /s/ L. ▇▇▇▇▇ ▇▇▇▇▇▇
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Name:
Title:
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, INC.,
a Delaware corporation
XPEDITE SYSTEMS WORLDWIDE, INC.,
a Delaware corporation
By: /s/ L. ▇▇▇▇▇ ▇▇▇▇▇▇
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Name:
Title:
ADMINISTRATIVE AGENT: BANK OF AMERICA, N.A.,
-------------------- as Administrative Agent and Collateral Agent
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
LENDERS: BANK OF AMERICA, N.A.,
------- as L/C Issuer, Swingline Lender and as a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
LASALLE BANK NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: First Vice President
HSBC BANK USA, NATIONAL ASSOCIATION
By:
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Name:
Title:
WACHOVIA BANK, NATIONAL ASSOCIATION
By:
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Name:
Title:
REGIONSBANK
By: /s/ W. ▇▇▇▇ ▇▇▇▇▇
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Name: W. ▇▇▇▇ ▇▇▇▇▇
Title: VP
CAROLINA FIRST BANK
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: Executive Vice President