EXHIBIT 10.54
AMENDMENT NO. 1
TO
REVOLVING CREDIT AGREEMENT
THIS AMENDMENT NO. 1 TO REVOLVING CREDIT AGREEMENT (this "Amendment")
is made and effective as of September 30, 2002, by and among XXXXX ENTERPRISES,
INCORPORATED, a Florida corporation (the "Borrower"), the several banks and
other financial institutions from time to time party hereto (the "Lenders"), and
SUNTRUST BANK, in its capacity as Administrative Agent for the Lenders (the
"Administrative Agent") and in its capacity as Collateral Agent for the Lenders
(the "Collateral Agent").
W I T N E S S E T H:
WHEREAS, the Borrower, the Lenders and the Administrative Agent are
parties to that certain Revolving Credit Agreement, dated as of April 5, 2002
(the "Existing Credit Agreement"), pursuant to which the Lenders have agreed to
establish for the Borrower a revolving credit facility in the aggregate
principal amount of $60,000,000, with a letter of credit subfacility in the
aggregate principal amount of up to $15,000,000 and a swingline subfacility in
the aggregate principal amount of up to $10,000,000 thereunder, all upon the
terms and subject to the conditions specified in the Existing Credit Agreement;
and
WHEREAS, the Lenders have agreed that a portion of such revolving
credit facility and such letter of credit subfacility may be made and issued in
certain currencies other than U.S. dollars in an aggregate principal amount of
up to the U.S. dollar equivalent of $25,000,000; and
WHEREAS, upon request of the Borrower, the Lenders and the
Administrative Agent have agreed to modify and amend the Existing Credit
Agreement as set forth herein including, without limitation, decreasing the
amount of the revolving credit facility to $40,000,000.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements herein contained, the Borrower, the Lenders and the
Administrative Agent agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 CERTAIN DEFINITIONS. Unless otherwise defined herein
or the context otherwise requires, the following terms as used in this
Amendment, including the preamble and recitals, have the meanings set forth
below:
"AMENDED CREDIT AGREEMENT" shall mean the Existing Credit
Agreement, as amended hereby.
"AMENDMENT NO. 1 EFFECTIVE DATE" shall have the meaning
assigned to such term in Article III.
SECTION 1.2 OTHER DEFINITIONS. Unless otherwise defined herein,
capitalized terms used herein and not defined herein shall have the meanings
assigned to such terms in the Existing Credit Agreement.
ARTICLE II
AMENDMENTS TO EXISTING AGREEMENT
SECTION 2.1 AMENDMENTS TO ARTICLE I - DEFINITIONS; CONSTRUCTIONS.
As of the Amendment No. 1 Effective Date, the Existing Credit Agreement is
hereby amended as follows:
(a) The terms "Aggregate Revolving Commitments,"
"Applicable Margin," "Applicable Percentage," "Consolidated EBIT," "Consolidated
Fixed Charges," "Fixed Charge Coverage Ratio," "Loan Documents," "Net Cash
Proceeds" and "Revolving Commitment" of "ARTICLE I - DEFINITIONS; CONSTRUCTION"
of the Existing Credit Agreement are hereby deleted in their entirety and the
following new terms are inserted in their respective places:
"AGGREGATE REVOLVING COMMITMENTS" shall mean the sum
of the Revolving Commitments of all Lenders at any time
outstanding. The Aggregate Revolving Commitments shall not
exceed the U.S. Dollar Equivalent of $40,000,000.
"APPLICABLE MARGIN" shall mean, as of any date, with
respect to all Eurocurrency Borrowings and Base Rate
Borrowings outstanding on such date, the percentage per annum
designated in the "Pricing Grid" attached hereto as Schedule I
as applicable to Eurocurrency Borrowings or Base Rate
Borrowings, as the case may be, based on the Leverage Ratio.
As of the Amendment No. 1 Effective Date through and including
the Borrower's fiscal quarter ending December 31, 2003, the
Applicable Margin for Eurocurrency Borrowings shall be 2.50%
and the Applicable Margin for Base Rate Borrowings shall be
1.50%; provided, however, if the Borrower and its Subsidiaries
on a consolidated basis have a Fixed Charge Coverage Ratio in
excess of 1.40:1.00 at the end of any two consecutive fiscal
quarters of the Borrower ending on or after September 30,
2003, as determined based on the Borrower's financial
statements delivered to the Administrative Agent in accordance
with Section 5.1(a) and (b) and the Covenant Compliance
Certificate delivered to the Administrative Agent in
accordance with Section 5.1(f), the Applicable Margin shall be
reset to the percentage designated in Schedule I based on the
Leverage Ratio as of the last day of such second consecutive
fiscal quarter then ended, such Applicable Margin being
effective as of the second Business Day following the date
that the Administrative Agent receives such financial
statements and certificate; and provided further, however,
that if at any time the Borrower shall have failed to deliver
to the Administrative Agent the Borrower's financial
statements required by Section 5.1(a) and (b) and the Covenant
Compliance Certificate required by Section 5.1(f) when due,
the Applicable Margin shall be at Level III until such time as
such financial statements and certificate are delivered, at
which time the Applicable Margin shall be determined as
provided above.
"APPLICABLE PERCENTAGE" shall mean, as of any date,
with respect to the commitment fee, the percentage per annum
designated in the "Pricing Grid" attached hereto as Schedule I
based on the Leverage Ratio. As of the Amendment No. 1
Effective Date through and including the Borrower's fiscal
quarter ending December 31, 2003, the Applicable Percentage
shall be 0.75%; provided, however, if the Borrower and its
Subsidiaries on a consolidated basis have a Fixed Charge
Coverage Ratio in excess of 1.40:1.00 at the end of any two
consecutive fiscal quarters of the Borrower ending on or after
September 30, 2003, as determined based on the Borrower's
financial statements delivered to the Administrative Agent in
accordance with Section 5.1(a) and (b) and the Covenant
Compliance Certificate delivered to the Administrative Agent
in accordance with Section 5.1(f), the Applicable Percentage
shall be reset to the percentage designated in Schedule I
based on the Leverage Ratio as of the last day of such second
consecutive fiscal quarter then ended, such Applicable Margin
being effective as of the second Business Day following the
date that the Administrative Agent receives such financial
statements and certificate; and provided further, however,
that if at any time the Borrower shall have failed to deliver
to the Administrative Agent the Borrower's financial
statements required by Section 5.1(a) and (b) and the Covenant
Compliance Certificate required by
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Section 5.1(f) when due, the Applicable Percentage shall be at
Level III until such time as such financial statements and
certificate are delivered, at which time the Applicable
Percentage shall be determined as provided above.
"CONSOLIDATED EBIT" shall mean, for the Borrower and
its Subsidiaries for any period, an amount equal to the sum of
(a) Net Income for such period plus (b) to the extent deducted
in determining Net Income for such period, (i) Interest
Expense, (ii) income tax expense, (iii) for the period ending
on September 30, 2002 only, one-time litigation settlement
charges not to exceed $13,800,000 for such fiscal quarter
ended September 30, 2002, (iv) for the period ending on
December 31, 2002 only, (A) one-time restructuring charges not
to exceed $23,000,000 and (B) one-time accelerated
depreciation charges not to exceed $1,700,000, both for such
fiscal quarter ended December 31, 2002, and (v) for the period
ending on March 31, 2003 only, one-time accelerated
depreciation charges not to exceed $1,700,000 for such fiscal
quarter ended March 31, 2003, in each case, determined on a
consolidated basis in accordance with GAAP for the applicable
period.
"CONSOLIDATED FIXED CHARGES" shall mean, for the
Borrower and its Subsidiaries for any period, an amount equal
to the sum (without duplication) of (a) Consolidated Interest
Expense for such period plus (b) Consolidated Lease Expense
for such period plus (c) positive income tax expense for such
period (as reflected on the Borrower's financial statement
delivered to the Administrative Agent in accordance with
Section 5.1(b) for such period) plus (d) Capital Expenditures
for such period.
"FIXED CHARGE COVERAGE RATIO" shall mean, for any
period of four consecutive fiscal quarters of the Borrower and
its Subsidiaries on a consolidated basis, the ratio of (a)
Consolidated EBITDAR for such period to (b) Consolidated Fixed
Charges for such period.
"LOAN DOCUMENTS" shall mean, collectively, this
Agreement, the Notes (if any), the LC Documents, all Notices
of Borrowing and Borrowing Availability Certificates, the
Subsidiary Guarantee Agreement, the Indemnity and Contribution
Agreement, all Pledge Agreements and any and all other
instruments, agreements, documents and writings executed in
connection with any of the foregoing (excluding, however, any
Hedging Agreement relating to Obligations entered into with
any counterparty that was a Lender (or an Affiliate thereof)
at the time such Hedging Agreement was entered into).
"NET CASH PROCEEDS" shall mean the aggregate cash
proceeds received by the Borrower or any Subsidiary in respect
of any Asset Disposition or any Equity Issuance, net of (a)
direct costs (including, without limitation, legal, accounting
and investment banking fees, and sales commissions), (b)
amounts held in escrow to be applied as part of the purchase
price, or otherwise subject, pursuant to contract, to rights
of the purchaser as a reduction or return of the purchase
price, of any Asset Disposition, (c) in the case of any Asset
Disposition, amounts required to be paid to the holder of any
Indebtedness permitted by Section 7.1 and secured by a Lien on
the assets being sold or otherwise disposed of in such Asset
Disposition, or (d) taxes paid or payable as a result thereof;
it being understood that "Net Cash Proceeds" shall include,
without limitation, any cash received upon the sale or other
disposition of any non-cash consideration received by the
Borrower or any Subsidiary in any Asset Disposition or Equity
Issuance and any cash released from escrow or from adjustment
rights of the purchaser as part of the purchase price in
connection with any Asset Disposition.
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"REVOLVING COMMITMENT" shall mean, with respect to
each Lender, the obligation of such Lender to make Revolving
Loans to the Borrower and to participate in Letters of Credit
and Swingline Loans in an aggregate principal amount not
exceeding the U.S. Dollar Equivalent of the amount set forth
with respect to such Lender on the signature pages to this
Agreement, or in the case of a Person becoming a Lender after
the Closing Date as permitted by Section 10.4, the amount of
the assigned "Revolving Commitment" as provided in the
Assignment and Acceptance Agreement executed by such Person as
an assignee, as the same may be changed pursuant to terms
hereof.
(b) The terms "Account," "Account Debtor," "Borrowing
Availability," "Borrowing Availability Certificate," "Borrowing Base,"
"Consolidated EBITDAR," "Covenant Compliance Certificate," "Eligible Accounts,"
"Equity Issuance" and "Ineligible Accounts" are hereby added under the heading
"ARTICLE I - DEFINITIONS; CONSTRUCTION" of the Existing Credit Agreement in
their proper alphabetical order as follows:
"ACCOUNT" shall mean a right to payment of a monetary
obligation arising in the ordinary course of business, whether
or not earned by performance, (a) for property that has been
or is to be sold, leased, licensed, assigned, or otherwise
disposed of, and (b) for services rendered or to be rendered;
but such term shall not include (i) commercial tort claims,
(ii) deposit accounts, (iii) investment property, (iv)
letter-of-credit rights or letters of credit, or (v) rights to
payment for money or funds advanced or sold, other than rights
arising out of the use of a credit or charge card or
information contained on or for use with the card.
"ACCOUNT DEBTOR" means a Person obligated on an
Account.
"BORROWING AVAILABILITY" shall mean the greatest
additional amount that may be borrowed on any date by the
Borrower in respect of the Loans in the aggregate, with such
maximum amount to equal, at any date of determination (which
date and determination shall be in the Administrative Agent's
reasonable discretion), the difference between:
(a) the Borrowing Base; and
(b) the sum of the aggregate Revolving Credit
Exposures of all Lenders;
provided, however, that the Borrower shall not in any
event be permitted to borrow more than the Aggregate Revolving
Commitments then in effect, irrespective of the size of the
Borrowing Base.
"BORROWING AVAILABILITY CERTIFICATE" shall have the
meaning set forth in Section 2.1.
"BORROWING BASE" shall mean at any time eighty-five
percent (85%) of the face value of Eligible Accounts.
"CONSOLIDATED EBITDAR" shall mean, for the Borrower
and its Subsidiaries for any period, an amount equal to the
sum of (a) Consolidated EBITDA plus (b) Consolidated Lease
Expense, determined on a consolidated basis in accordance with
GAAP in each case for such period.
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"COVENANT COMPLIANCE CERTIFICATE" shall have the
meaning set forth in Section 5.1(f).
"ELIGIBLE ACCOUNTS" shall mean any Account of
Borrower or a Subsidiary Guarantor except for Ineligible
Accounts.
"EQUITY ISSUANCE" shall mean any issuance by any Loan
Party to any Person which is not a Loan Party of shares of its
Capital Stock (excluding the issuance of any such shares by
the Borrower under or in connection with its employee stock
purchase plan or pursuant to the exercise of employee or
director stock options).
"INELIGIBLE ACCOUNTS" shall mean any Account with
respect to which: (i) the obligation to pay is not evidenced
by an invoice or the invoice is conditional, permits returns,
or restricts collection rights or assignments in any respect
(except, however, that the invoice may permit returns in the
ordinary course of business); (ii) the invoice permits
payment: (A) more than 60 days after invoice date; (B) in a
currency other than United States Dollars; or (C) at any
location outside the United States; (iii) the obligation to
pay is evidenced by chattel paper or any note or other
instrument (unless duly endorsed and delivered to the
Administrative Agent); (iv) the goods or services have been
rejected, returned, or disputed in any way, whether in whole
or in part, in which event the receivable shall be ineligible
to the extent of such rejection, return, or dispute; (v) the
Account Debtor has attempted to renegotiate the invoiced price
or asserted any right of reduction, set-off, recoupment,
counterclaim, or defense; (vi) 90 days or more have elapsed
since invoice date; (vii) the invoice or corresponding Account
is the subject of any financing statement, lien, or other
encumbrance other than in favor of the Administrative Agent;
(viii) the Account Debtor is an officer, employee or
shareholder or a direct or indirect Subsidiary or Affiliate of
the Borrower; (ix) the Account Debtor has commenced a
voluntary case under the federal bankruptcy laws, as now
constituted or hereafter amended, or made an assignment for
the benefit of creditors, or if a decree or order for relief
has been entered by a court having jurisdiction over the
Account Debtor in an involuntary case under the federal
bankruptcy laws, as now constituted or hereafter amended, or
if any other petition or other application for relief under
the federal bankruptcy laws has been filed by or against the
Account Debtor, or if the Account Debtor has failed, suspended
business, declared itself to be insolvent, or consented to or
suffered a receiver, trustee, liquidator or custodian to be
appointed for it or for all or a significant portion of its
assets or affairs; (x) the Account Debtor is any governmental
authority, unless an assignment of such Account has been
properly perfected under the Assignment of Claims Act of 1940,
as amended; (xi) the Account Debtor does not meet the
established credit standards of the Borrower; (xii) fifty
percent (50%) or more of the aggregate balance of the Accounts
owing by the Account Debtor and its Affiliates remain unpaid
for more than 90 days after the invoice date for such
Accounts; (xiii) the aggregate balance of Accounts owing by a
single Account Debtor that exceed 20% of the total Accounts of
the Borrower (except if such Account Debtor is the United
States government and such Account meets the eligibility
requirements of clause (x) of this definition); (xiv) the
Account Debtor's principal office is located outside of the
United States of America (unless such account is supported by
a letter of credit or credit insurance acceptable to the
Administrative Agent and naming the Administrative Agent as
beneficiary); (xv) the Account is related to any unapplied
credit of an Account Debtor that exceeds 90 days from the
invoice date; (xvi) the invoice is issued with "cash" or
"C.O.D." terms; (xvii) finance charges have been assessed to
an Account Debtor, but only to the extent of such
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finance charges; or (xviii) the Administrative Agent otherwise
determines in its reasonable discretion that the Account is
ineligible hereunder.
(c) The terms "Lender Addition Agreement," "New Lender"
and "Utilization Rate" under the heading "ARTICLE I - DEFINITIONS; CONSTRUCTION"
of the Existing Credit Agreement are hereby deleted in their entirety and not
replaced.
SECTION 2.2 AMENDMENTS TO ARTICLE II - AMOUNT AND TERMS OF THE
COMMITMENTS. Effective as of the Amendment No. 1 Effective Date, the Existing
Credit Agreement is hereby amended as follows:
(a) Section 2.1 of "ARTICLE II - AMOUNT AND TERMS OF THE
COMMITMENTS" of the Existing Credit Agreement is hereby deleted in its entirety
and the following is substituted in lieu thereof:
SECTION 2.1 GENERAL DESCRIPTION OF FACILITIES.
(a) Subject to and upon the terms and conditions
herein set forth, (a) the Lenders hereby establish in favor of
the Borrower a revolving credit facility pursuant to which the
Lenders severally agree (to the extent of each Lender's Pro
Rata Share up to such Lender's Revolving Commitment) to make
Revolving Loans to the Borrower in accordance with Section
2.2, (b) the Swingline Lender agrees to make Swingline Loans
in accordance with Section 2.4, (c) the Issuing Bank agrees to
issue Letters of Credit in accordance with Section 2.23, and
(d) each Lender agrees to purchase a participation interest in
the Swingline Loans and the Letters of Credit pursuant to the
terms and conditions hereof; provided, that in no event shall
(x) the Revolving Credit Exposure of any Lender (determined in
accordance with Section 10.14) exceed at any time its
Revolving Commitment then in effect, (y) the sum of the
aggregate Revolving Credit Exposures (determined in accordance
with Section 10.14) exceed at any time the lesser of (i) the
Aggregate Revolving Commitments then in effect or (ii) the
Borrowing Base, or (z) the U.S. Dollar Equivalent amount of
outstanding Revolving Loans and LC Obligations funded and
issued in Foreign Currency (determined in accordance with
Section 10.14) exceed the Foreign Currency Commitment from
time to time in effect.
(b) The Borrower shall furnish a certificate to
the Administrative Agent, substantially in the form of Exhibit
2.1 attached hereto (a "BORROWING AVAILABILITY CERTIFICATE"),
(i) if there are Revolving Loans outstanding, on a monthly
basis on or before the tenth (10th) Business Day of each
calendar month and (ii) if there are no Revolving Loans
outstanding, on a quarterly basis as soon as available after
the end of each fiscal quarter of the Borrower and, in any
event, at or before the time of delivery of the financial
statements required by Section 5.1(a) and (b), in each case,
duly executed and certified correct by a Responsible Officer,
setting forth a calculation of the Borrowing Availability as
of such calendar month end or such fiscal quarter end, as
applicable. The Administrative Agent shall determine the
availability of any Borrowing or the issuance of any Letter of
Credit based upon the most current calendar month end or the
most current fiscal quarter end, as applicable, Borrowing
Availability Certificate showing that the Borrowing
Availability is sufficient to support such Borrowing or the
issuance of such Letter of Credit. All Borrowings and issuance
of Letters of Credit during each calendar month or fiscal
quarter, as applicable, shall thereafter be reconciled by the
Administrative Agent upon receipt of the next succeeding
Borrowing Availability Certificate, and to the extent any
Borrowing was made or any Letter of Credit was issued without
the appropriate availability (as shown by such next succeeding
Borrowing
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Availability Certificate) and a resulting margin imbalance has
occurred, the Borrower shall be required to pay down such
margin imbalance immediately upon telephonic notice (followed
by written notice) of such margin imbalance from the
Administrative Agent. At the option of the Administrative
Agent, each Borrowing Availability Certificate shall be
subject to verification by appropriate representatives of the
Administrative Agent prior to the disbursement of any monies.
(b) Section 2.2 of "ARTICLE II - AMOUNT AND TERMS OF THE
COMMITMENTS" of the Existing Credit Agreement is hereby deleted in its entirety
and the following is substituted in lieu thereof:
SECTION 2.2 REVOLVING LOANS. Subject to the
terms and conditions set forth herein, each Lender severally
agrees to make Revolving Loans to the Borrower, from time to
time during the Availability Period, in the aggregate U.S.
Dollar Equivalent principal amount outstanding at any time
that will not result in (a) such Lender's Revolving Credit
Exposure (determined in accordance with Section 10.14)
exceeding such Lender's Revolving Commitment or (b) the sum of
the aggregate Revolving Credit Exposures of all Lenders
(determined in accordance with Section 10.14) exceeding the
lesser of (i) the Aggregate Revolving Commitments or (ii) the
Borrowing Base. Funding of any Revolving Loans shall be in any
combination of U.S. Dollars and Foreign Currency as specified
by the Borrower as set forth in Section 2.3; provided, that
subject to the further applicable limitations set forth in
Section 2.23(a) with regard to the issuance of Letters of
Credit, the U.S. Dollar Equivalent amount of outstanding
Revolving Loans and LC Obligations funded and issued in
Foreign Currency (determined, with respect to such Revolving
Loans and LC Obligations, in accordance with Section 10.14)
shall at no time exceed the Foreign Currency Commitment then
in effect. During the Availability Period, the Borrower shall
be entitled to borrow, prepay and reborrow Revolving Loans in
accordance with the terms and conditions of this Agreement;
provided, that the Borrower may not borrow or reborrow should
there exist a Default or Event of Default.
(c) The last sentence of Section 2.3 of "ARTICLE II -
AMOUNT AND TERMS OF THE COMMITMENTS" of the Existing Credit Agreement is hereby
deleted in its entirety and the following is substituted in lieu thereof:
Promptly following the receipt of a Notice of Revolving
Borrowing in accordance herewith, and provided that the
Borrowing Availability based on the most current Borrowing
Availability Certificate furnished by the Borrower to the
Administrative Agent in accordance with Section 2.1 supports
such Revolving Borrowing, the Administrative Agent shall
advise each Lender of the details thereof and the amount of
such Lender's Revolving Loan to be made as part of the
requested Revolving Borrowing.
(d) Section 2.4 of "ARTICLE II - AMOUNT AND TERMS OF THE
COMMITMENTS" of the Existing Credit Agreement is hereby deleted in its entirety
and the following is substituted in lieu thereof:
SECTION 2.4 SWINGLINE COMMITMENT. Subject to
the terms and conditions set forth herein, the Swingline
Lender agrees to make Swingline Loans to the Borrower, from
time to time from the Closing Date to the Swingline
Termination Date, in an aggregate principal amount outstanding
at any time not to exceed the lesser of (a) the Swingline
Commitment then in effect, (b) the difference between the
Aggregate Revolving Commitments and the sum of the aggregate
Revolving Credit Exposures of all Lenders and (c) the
Borrowing Availability; provided, that the Swingline Lender
shall not be
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required to make a Swingline Loan to refinance an outstanding
Swingline Loan. The Borrower shall be entitled to borrow,
repay and reborrow Swingline Loans in accordance with the
terms and conditions of this Agreement.
(e) Subsection (a) under Section 2.11 of "ARTICLE II -
AMOUNT AND TERMS OF THE COMMITMENTS" of the Existing Credit Agreement is hereby
deleted in its entirety and the following is substituted in lieu thereof:
(a) Mandatory Prepayments. The Borrower shall be
required to make mandatory principal prepayments from 100% of
the Net Cash Proceeds (including all Net Cash Proceeds
received on any purchase money Indebtedness held by the
recipient of such Net Cash Proceeds) from any Asset
Disposition involving 5% or more of the total assets of the
Borrower and its Subsidiaries on a consolidated basis as
reflected on the Borrower's most recent annual consolidated
balance sheet delivered to the Administrative Agent pursuant
to Section 5.1(a), unless such Net Cash Proceeds are fully
reinvested by the Borrower (or, if applicable, such
Subsidiary) in like assets owned by the Borrower or such
Guarantor within twelve (12) months from the date of closing
such Asset Disposition. In such case, the Borrower will
deliver to the Administrative Agent, concurrently with such
prepayment, a certificate signed by a Responsible Officer, in
form and substance satisfactory to the Administrative Agent,
setting the forth the calculation of such Net Cash Proceeds.
All such prepayments shall be applied as follows: first, to
any outstanding Swingline Loans, second, to any outstanding
Revolving Loans (but without a corresponding permanent
reduction in the Revolving Commitments), and last, after all
Swingline Loans and all Revolving Loans have been repaid, to
the Borrower. Further, if at any time after the Closing Date,
the aggregate Revolving Credit Exposures shall exceed the
lesser of (i) the Aggregate Revolving Commitments or (ii) the
Borrowing Base, then (x) on the last day of any Interest
Period for any Eurocurrency Borrowing and (y) on any other
date in the event Base Rate Borrowings shall be outstanding,
the Borrower shall prepay Revolving Loans in an amount equal
to the lesser of (A) the amount necessary to eliminate such
excess (after giving effect to any other prepayment of Loans
on such date) and (B) the amount of the Borrowings referred to
in clauses (x) and (y), as applicable. Without limiting the
generality of the foregoing, the Borrower acknowledges that
such required payments may be necessary whenever the most
current calendar month end or the most current fiscal quarter
end, as applicable, Borrowing Availability Certificate
demonstrates that there shall then be outstanding in respect
of the sum of the Revolving Credit Exposures of all Lenders an
aggregate amount in excess of the Borrowing Base. Further, if,
on any Reset Date, (i) the aggregate Revolving Credit Exposure
exceeds 105% of the Aggregate Revolving Commitments then in
effect, or (ii) the sum of the U.S. Dollar Equivalent of (A)
the aggregate principal amount of outstanding Revolving Loans
denominated in a Foreign Currency, plus (B) the undrawn
amounts of outstanding Letters of Credit denominated in a
Foreign Currency, plus (C) the aggregate amount of LC
Disbursements denominated in a Foreign Currency that have not
been reimbursed by or on behalf of the Borrower exceeds 105%
of the Foreign Currency Commitment then in effect, then, in
either such case, the Borrower shall be required to make
mandatory principal prepayments of such Revolving Loans in an
aggregate amount sufficient to eliminate such excess.
Immediately upon determining the need to make any such
prepayment, the Borrower shall notify the Administrative Agent
of such required prepayment and of the identity of the
particular Revolving Loans being prepaid. If the
Administrative Agent shall notify the Borrower that the
Administrative Agent has determined that any prepayment is
required under this Section 2.11(a), the Borrower shall make
such prepayment no later than the
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second Business Day following such notice. Any mandatory
prepayment of Revolving Loans pursuant hereto shall not be
limited by the notice provision for prepayments set forth in
Section 2.11(b). Each such prepayment shall be accompanied by
a payment of all accrued and unpaid interest on the Loans
prepaid and all amounts required pursuant to Sections 2.17 and
2.19.
(f) Subsection (b) under Section 2.13 of "ARTICLE II -
AMOUNT AND TERMS OF THE COMMITMENTS" of the Existing Credit Agreement is hereby
deleted in its entirety and the following is substituted in lieu thereof:
(b) Commitment Fee. The Borrower agrees to pay
to the Administrative Agent for the account of each Lender a
commitment fee, which shall accrue at the Applicable
Percentage (determined quarterly in accordance with Schedule
I) on the average daily amount of the unused Revolving
Commitment of such Lender during the Availability Period;
provided, that if such Lender continues to have any Revolving
Credit Exposure after the Commitment Termination Date, then
the commitment fee shall continue to accrue on the amount of
such Lender's unused Revolving Commitment from and after the
Commitment Termination Date to the date that all of such
Lender's Revolving Credit Exposure has been paid in full. As
of the Amendment No. 1 Effective Date, the Applicable
Percentage shall initially be 0.75%, but shall be reset from
time to time as provided in the definition of "Applicable
Percentage" herein. Accrued commitment fees shall be payable
in arrears on the last day of each March, June, September and
December of each year and on the Commitment Termination Date,
commencing on the first such date after the Closing Date;
provided, that any commitment fees accruing after the
Commitment Termination Date shall be payable on demand. For
purposes of computing commitment fees with respect to the
Revolving Commitments, the Revolving Commitment of each Lender
shall be deemed used to the extent of the outstanding
Revolving Loans and LC Exposure of such Lender (but
outstanding Swingline Loans shall not be deemed usage of the
Revolving Commitment of any Lender).
(g) Subsection (a) under Section 2.23 of "ARTICLE II -
AMOUNT AND TERMS OF THE COMMITMENTS" of the Existing Credit Agreement is hereby
deleted in its entirety and the following is substituted in lieu thereof:
(a) During the Availability Period, the Issuing
Bank, in reliance upon the agreements of the other Lenders
pursuant to Section 2.23(d), agrees to issue, at the request
and for the account of the Borrower, Letters of Credit on
behalf of the Borrower on the terms and conditions hereinafter
set forth; provided, that (i) each Letter of Credit shall
expire on the earlier of (A) the date one year after the date
of issuance of such Letter of Credit (or in the case of any
renewal or extension thereof, one year after such renewal or
extension) and (B) the date that is five (5) Business Days
prior to the Commitment Termination Date; (ii) each Letter of
Credit shall be in a stated amount of at least the U.S. Dollar
Equivalent of $500,000; and (iii) the Borrower may not request
any Letter of Credit, if, after giving effect to such issuance
(A) the aggregate LC Exposure would exceed the LC Commitment,
(B) the aggregate Revolving Credit Exposures of all Lenders
would exceed the lesser of (i) the Aggregate Revolving
Commitments or (ii) the Borrowing Base, or (C) the issuance of
such Letter of Credit would violate any legal or regulatory
restriction then applicable to the Issuing Bank or any Lender
as notified by the Issuing Bank or such Lender to the
Administrative Agent before the date of issuance of such
Letter of Credit. Letters of Credit may be issued in face
amounts of any Foreign Currency; provided, that the sum of the
U.S. Dollar Equivalent of (i) the
9
aggregate principal amount of outstanding Revolving Loans
denominated in a Foreign Currency, plus (ii) the undrawn
amounts of outstanding Letters of Credit denominated in a
Foreign Currency, plus (iii) the aggregate amount of LC
Disbursements denominated in a Foreign Currency that have not
been reimbursed by or on behalf of the Borrower shall not
exceed the Foreign Currency Commitment then in effect. Upon
the issuance of each Letter of Credit each Lender shall be
deemed to, and hereby irrevocably and unconditionally agrees
to, purchase from the Issuing Bank without recourse a
participation in such Letter of Credit equal to such Lender's
Pro Rata Share of the aggregate amount available to be drawn
under such Letter of Credit. Each issuance of a Letter of
Credit shall be deemed to utilize the Revolving Commitment of
each Lender by an amount equal to the amount of such
participation.
SECTION 2.3 AMENDMENTS TO ARTICLE V - AFFIRMATIVE COVENANTS.
Effective as of the Amendment No. 1 Effective Date, the Existing Credit
Agreement is hereby amended as follows:
(a) Subsection (c) under Section 5.1 of "ARTICLE V -
AFFIRMATIVE COVENANTS" of the Existing Credit Agreement is hereby deleted in its
entirety and the following new subsection is inserted in its place:
(c) concurrently with the delivery of the
financial statements referred to in clauses (a) and (b) above,
a certificate of a Responsible Officer, (i) certifying as to
whether there exists a Default or Event of Default on the date
of such certificate, and if a Default or an Event of Default
then exists, specifying the details thereof and the action
which the Borrower has taken or proposes to take with respect
thereto, and (ii) stating whether any change in GAAP or the
application thereof has occurred since the date of the
Borrower's audited financial statements referred to in Section
4.4 and, if any change has occurred, specifying the effect of
such change on the financial statements accompanying such
certificate;
(b) Subsections (e) and (f) under Section 5.1 of "ARTICLE
V - AFFIRMATIVE COVENANTS" of the Existing Credit Agreement are hereby
re-designated as subsections (g) and (h), respectively, and the following new
subsections (e) and (f) are added under said Section as follows:
(e) as applicable in accordance with Section
2.1(b), (i) on or before the tenth (10th) Business Day of each
calendar month or (ii) as soon as available after the end of
each fiscal quarter of the Borrower and, in any event, at or
before the time of delivery of the financial statements
required by Section 5.1(a) and (b), a Borrowing Availability
Certificate as of the last day of the immediately preceding
calendar month end or fiscal quarter end, as applicable;
(f) concurrently with the delivery of each
Borrowing Availability Certificate referred to in clause (e),
a certificate of a Responsible Officer (a "COVENANT COMPLIANCE
CERTIFICATE"), setting forth in reasonable detail calculations
demonstrating compliance with Article VI in the form of
Exhibit 5.1(f) hereto;
(c) Section 5.9 of "ARTICLE V - AFFIRMATIVE COVENANTS" of
the Existing Credit Agreement is hereby amended to change the reference to
Section 7.4(c) therein to Section 7.4(a).
SECTION 2.4 AMENDMENTS TO ARTICLE VI - FINANCIAL COVENANTS.
Effective as of the Amendment No. 1 Effective Date, the Existing Credit
Agreement is hereby amended as follows:
(a) Section 6.1 of "ARTICLE VI - FINANCIAL COVENANTS" of
the Existing Credit Agreement is hereby deleted in its entirety and the
following is substituted in lieu thereof:
10
SECTION 6.1 LEVERAGE RATIO. The Borrower and
its Subsidiaries will have, as of the end of each fiscal
quarter of the Borrower, commencing with the fiscal quarter
ending December 31, 2002, a Leverage Ratio of not greater than
2.00:1.00, calculated on a rolling four-quarter basis and
determined in accordance with GAAP.
(b) Section 6.2 of "ARTICLE VI - FINANCIAL COVENANTS" of
the Existing Credit Agreement is hereby deleted in its entirety and the
following is substituted in lieu thereof:
SECTION 6.2 FIXED CHARGE COVERAGE RATIO. The
Borrower and its Subsidiaries will have, as of the end of each
fiscal quarter of the Borrower, (a) commencing with the fiscal
quarter ending September 30, 2002 through and including the
fiscal quarter ending December 31, 2002, a Fixed Charge
Coverage Ratio of not less than 1.25:1.00; (b) for the fiscal
quarter ending March 31, 2003, a Fixed Charge Coverage Ratio
of not less than 1.20:1:00; (c) commencing with the fiscal
quarter ending June 30, 2003 through and including the fiscal
quarter ending September 30, 2003, a Fixed Charge Coverage
Ratio of not less than 1.05:1.00; (d) for the fiscal quarter
ending December 31, 2003, a Fixed Charge Coverage Ratio of not
less than 1.15:1.00; and (e) commencing with the fiscal
quarter ending March 31, 2004 and thereafter, a Fixed Charge
Coverage Ratio of not less than 1.25:1.00, in each case,
calculated on a rolling four-quarter basis and determined in
accordance with GAAP.
(c) Section 6.3 of "ARTICLE VI - FINANCIAL COVENANTS" of
the Existing Credit Agreement is hereby deleted in its entirety and the
following is substituted in lieu thereof:
SECTION 6.3 CONSOLIDATED NET WORTH. The
Borrower and its Subsidiaries will have, as of the end of each
fiscal quarter of the Borrower, commencing with the fiscal
quarter ending December 31, 2002, a Consolidated Net Worth in
an amount equal to or greater than the difference between (a)
the sum of (i) $167,500,000, plus (ii) 50% of cumulative
Consolidated Net Income accrued since the end of such fiscal
quarter, all determined in accordance with GAAP; provided,
that if Consolidated Net Income is negative in any fiscal
quarter the amount added for such fiscal quarter shall be zero
and such negative Consolidated Net Income shall not reduce the
amount of Consolidated Net Income added from any previous
fiscal quarter, plus (iii) one hundred percent (100%) of the
aggregate Net Cash Proceeds from any Equity Issuance, minus
(b) an amount equal to the actual expenditure of funds by
Borrower on or after November 1, 2002 for the repurchase of
Borrower's common stock, not to exceed, however, $7,500,000 in
the aggregate at any time for the term of the Loans, in each
case calculated quarterly on the last day of each fiscal
quarter.
(d) A new Section 6.4 is hereby added under "ARTICLE VI -
FINANCIAL COVENANTS" of the Existing Credit Agreement as follows:
SECTION 6.4 LIQUIDITY. The Borrower and its
Subsidiaries will have at all times cash and Cash Equivalents
in an amount equal to or greater than the U.S. Dollar
Equivalent of $40,000,000; provided, however, the Borrower may
not request or use Borrowings hereunder in order to meet such
liquidity requirement.
(e) A new Section 6.5 is hereby added under "ARTICLE VI -
FINANCIAL COVENANTS" of the Existing Credit Agreement as follows:
11
SECTION 6.5 MINIMUM ELIGIBLE ACCOUNTS. The
Borrower and the Subsidiary Guarantors will have at all times
Eligible Accounts in an amount equal to or greater than
$23,750,000.
SECTION 2.5 AMENDMENTS TO ARTICLE VII - NEGATIVE COVENANTS.
Effective as of the Amendment No. 1 Effective Date, the Existing Credit
Agreement is hereby amended as follows:
(a) Subsection (h) under Section 7.1 of "ARTICLE VII -
NEGATIVE COVENANTS" of the Existing Credit Agreement is hereby deleted in its
entirety and the following is substituted in lieu thereof:
(h) other unsecured Indebtedness in an aggregate
principal amount not to exceed $2,000,000 at any time
outstanding.
(b) Subsection (a)(iii) under Section 7.4 of "ARTICLE VII
- NEGATIVE COVENANTS" of the Existing Credit Agreement is hereby deleted in its
entirety and the following is substituted in lieu thereof:
(iii) Investments in the common stock or
securities of any other Person (including any option, warrant
or other right to acquire any such stock or securities) or
purchases, leases or other acquisitions (in one transaction or
a series of transactions) of any assets of any other Person;
provided, that (A) the aggregate cost of any such Investments
or acquisitions (which includes assumed Indebtedness) does not
exceed $10,000,000 in any single case; (B) the aggregate cost
of all such Investments and other acquisitions (which includes
assumed Indebtedness) for any period of four consecutive
fiscal quarters of the Borrower does not exceed $20,000,000;
and (C) the aggregate cost of all such Investments and other
acquisitions (which includes assumed Indebtedness) for the
term of the Loans does not exceed $50,000,000;
(c) Subsections (a)(vi) and (vii) under Section 7.4 of
"ARTICLE VII - NEGATIVE COVENANTS" of the Existing Credit Agreement are hereby
amended to strike the word "and" at the end of subsection (a)(vi) and to strike
the period at the end of subsection (a)(vii) and to insert in its place "; and".
(d) A new subsection (a)(viii) is hereby added under
Section 7.4 of "ARTICLE VII - NEGATIVE COVENANTS" as follows:
(viii) Investments in repurchases of the capital
stock of the Borrower which do not exceed $5,000,000 for the
term of the Loans, provided, that the foregoing limitation
shall be increased to $7,500,000 if Consolidated EBITDAR
exceeds $16,000,000 as of the end of any fiscal quarter
commencing with the fiscal quarter ending September 30, 2003.
(e) Subsection (b) under Section 7.4 of "ARTICLE VII -
NEGATIVE COVENANTS" of the Existing Credit Agreement is hereby deleted in its
entirety and the following is substituted in lieu thereof:
(b) The Borrower will not, and will not permit
any of its Subsidiaries to, make Capital Expenditures in the
aggregate (i) in excess of (A) $7,500,000 during any fiscal
quarter of the Borrower commencing with the fiscal quarter
ending December 31, 2002 through and including the fiscal
quarter ending December 31, 2003 or (B) $15,000,000 during any
fiscal quarter of the Borrower commencing with the fiscal
quarter ending March 31, 2004 and thereafter, or (ii) in
excess of (A) $25,000,000 for any period of four consecutive
fiscal quarters of the Borrower commencing with the fiscal
quarter ending
12
December 31, 2002 through and including the fiscal quarter
ending December 31, 2003 or (B) $50,000,000 for any period of
four consecutive fiscal quarters of the Borrower commencing
with the fiscal quarter ending March 31, 2004 and thereafter.
(f) Section 7.5 of "ARTICLE VII - NEGATIVE COVENANTS" of
the Existing Credit Agreement is hereby deleted in its entirety and the
following is substituted in lieu thereof:
SECTION 7.5 RESTRICTED PAYMENTS. The Borrower
will not, and will not permit its Subsidiaries to, declare or
make, or agree to pay or make, directly or indirectly, any
dividend on any class of its stock, or make any payment on
account of, or set apart assets for a sinking or other
analogous fund for, the purchase, redemption, retirement,
defeasance or other acquisition of, any shares of common stock
or Indebtedness subordinated to the Obligations of the
Borrower or any options, warrants, or other rights to purchase
such common stock or such Indebtedness, whether now or
hereafter outstanding (each, a "RESTRICTED PAYMENT"), except
for (a) dividends payable by the Borrower solely in shares of
any class of its common stock and (b) Restricted Payments made
by any Subsidiary to the Borrower or to another Subsidiary
Loan Party.
SECTION 2.6 AMENDMENTS TO ARTICLE VIII - EVENTS OF DEFAULT.
Effective as of the Amendment No. 1 Effective Date, the Existing Credit
Agreement is hereby amended as follows:
(a) Subsection (k) under Section 8.1 of "ARTICLE VIII -
EVENTS OF DEFAULT" of the Existing Credit Agreement is hereby deleted in its
entirety and the following is substituted in lieu thereof:
(k) any judgment or order for the payment of
money that exceeds $2,500,000 in the aggregate (excluding,
however, for the period ending September 30, 2002 and
thereafter, the settlement of that certain class action suit
against the Borrower identified on Schedule 4.5 in an amount
not exceeding $13,800,000, exclusive of insurance, pursuant to
the memorandum of understanding filed with the court), or that
has, or could reasonably be expected to have, a Material
Adverse Effect shall be rendered against the Borrower or any
Subsidiary, and either (i) enforcement proceedings shall have
been commenced by any creditor upon such judgment or order or
(ii) there shall be a period of 30 consecutive days during
which a stay of enforcement of such judgment or order, by
reason of a pending appeal or otherwise, shall not be in
effect; or
SECTION 2.7 AMENDMENTS TO SCHEDULE I - PRICING GRID. Effective as
of the Amendment No. 1 Effective Date, the Existing Credit Agreement is hereby
amended as follows:
(a) Schedule I of the Existing Credit Agreement
is hereby deleted in its entirety and the new form of Schedule
I attached hereto is substituted in lieu thereof.
SECTION 2.8 DELETION OF EXISTING EXHIBIT 2.1 AND ADDITION OF NEW
EXHIBIT 2.1 - BORROWING AVAILABILITY CERTIFICATE. Effective as of the Amendment
No. 1 Effective Date, the Existing Credit Agreement is hereby amended as
follows:
(a) Exhibit 2.1 to the Existing Credit Agreement
is hereby deleted in its entirety and is replaced by the new
Exhibit 2.1 - Borrowing Availability Certificate in the form
attached hereto.
SECTION 2.9 RE-DESIGNATION OF EXHIBIT 5.1(C) TO EXHIBIT 5.1(F) -
COVENANT COMPLIANCE CERTIFICATE. Effective as of the Amendment No. 1 Effective
Date, the Existing Credit Agreement is hereby amended as follows:
13
(a) Exhibit 5.1(c) to the Existing Credit
Agreement is hereby re-designated as Exhibit 5.1(f) - Covenant
Compliance Certificate, and all references in the Existing
Credit Agreement to Section 5.1(c), from and after the
Amendment No. 1 Effective Date, shall be deemed to refer to
Section 5.1(f).
SECTION 2.10 REDUCTION OF REVOLVING NOTE AMOUNTS. Effective as of
the Amendment No. 1 Effective Date, the Existing Credit Agreement is hereby
amended as follows:
(a) Notwithstanding the fact that the face
amount of the Revolving Credit Note currently held by each
Lender is in the amount of the Lender's original Revolving
Commitment, the principal amount thereof shall not exceed such
Lender's reduced Revolving Commitment as set forth with
respect to each Lender on the signature pages to this
Amendment, and each such Revolving Credit Note and all
references thereto in the Existing Credit Agreement shall be
deemed amended accordingly effective as of the Amendment No. 1
Effective Date without the necessity of re-executing any
Revolving Credit Note.
ARTICLE III
EFFECTIVENESS OF AMENDMENT NO. 1
SECTION 3.1 Upon execution hereof by the Borrower, the
Administrative Agent and the Required Lenders, this Amendment shall be and
become effective as of the date hereof (the "AMENDMENT NO. 1 EFFECTIVE DATE"),
and hereafter, this Amendment shall be known, and may be referred to, as
"AMENDMENT NO. 1".
ARTICLE IV
MISCELLANEOUS
SECTION 4.1 REPRESENTATIONS AND WARRANTIES. The Borrower hereby
represents and warrants to the Administrative Agent and the Lenders that, after
giving effect to this Amendment, (a) no Default or Event of Default exists under
the Existing Credit Agreement or any of the other Loan Documents, (b) all
representations and warranties of each Loan Party set forth in the Loan
Documents are true and correct in all material respects on and as of the date
hereof (except for those which expressly relate to an earlier date), (c) since
the date of the most recent financial statements of the Borrower described in
Section 5.1(a) or (b) of the Existing Credit Agreement, there has been no change
which has had or could reasonably be expected to have a Material Adverse Effect,
and (d) the Loan Documents are legal, valid and binding obligations of the
respective Loan Parties and are enforceable by the Administrative Agent and the
Lenders, as applicable, against such Loan Parties in accordance with their
respective terms.
SECTION 4.2 CROSS REFERENCES. References in this Amendment to any
Section are, unless otherwise specified, to such Section of this Amendment.
SECTION 4.3 INSTRUMENT PURSUANT TO EXISTING CREDIT AGREEMENT.
This Amendment is a document executed pursuant to the Existing Credit Agreement
and shall (unless otherwise expressly indicated therein) be construed,
administered and applied in accordance with the terms and provisions of the
Existing Credit Agreement.
SECTION 4.4 LOAN DOCUMENTS. The Borrower hereby confirm and agree
that the Loan Documents are, and shall continue to be, in full force and effect
and hereby ratify and approve in all respects their obligations thereunder,
except that, upon the effectiveness of, and on and after the date of this
Amendment, all references in each Loan Document to the "CREDIT Agreement",
"thereunder", "thereof" or words of like import referring to the Existing Credit
Agreement shall mean the Amended Credit Agreement.
14
SECTION 4.5 INDEMNIFICATION. The Borrower shall pay, and hold the
Administrative Agent, the Collateral Agent and each of the Lenders harmless from
and against, any and all present and future stamp, documentary, and other
similar taxes with respect to this Amendment and any other Loan Documents, any
collateral described therein, or any payments due thereunder, and save the
Administrative Agent and each Lender harmless from and against any and all
liabilities with respect to or resulting from any delay or omission to pay such
taxes. The indemnity provided herein shall survive repayment of the Loans.
SECTION 4.6 ENTIRE AGREEMENT. This Amendment and any separate
letter agreement(s) relating to any fees payable to the Administrative Agent
constitute the entire agreement among the parties hereto and thereto regarding
the subject matters hereof and thereof and supersede all prior agreements and
understandings, oral or written, regarding such subject matters.
SECTION 4.7 COUNTERPARTS, ETC. This Amendment may be executed by
the parties hereto in several counterparts, each of which shall be deemed to be
an original and all of which shall constitute together but one and the same
agreement. The parties may execute facsimile copies of this Amendment and the
facsimile signature of any such party shall be deemed an original and fully
binding on said party; provided, any party executing this Amendment by facsimile
signature agrees to promptly provide ten (10) original executed copies of this
Amendment to Administrative Agent.
SECTION 4.8 GOVERNING LAW; ETC. This Amendment shall be governed
by and construed in accordance with the applicable terms and provisions of
Section 10.5 - Governing Law; Jurisdiction; Consent to Service of Process of
"ARTICLE X - MISCELLANEOUS" of the Existing Credit Agreement, which terms and
provisions are incorporated herein by reference.
SECTION 4.9 NO OTHER MODIFICATIONS. Except as hereby amended, no
other term, condition or provision of the Existing Credit Agreement shall be
deemed modified or amended, and this Amendment shall not be considered a
novation.
SECTION 4.10 SUCCESSORS AND ASSIGNS. This Amendment shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
[Signatures follow on next page]
15
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed [under seal in the case of the Borrower] by their respective duly
authorized officers as of the day and year first above written.
XXXXX ENTERPRISES, INCORPORATED
By: /s/ W. Xxxxxxx Xxxxxxx
-----------------------------------------
Name: W. Xxxxxxx Xxxxxxx
Title: Group Executive and
Senior Vice President-Finance
[SEAL]
SUNTRUST BANK, AS ADMINISTRATIVE AGENT, AS
COLLATERAL AGENT, AS SWINGLINE LENDER AND AS
A LENDER
By : /s/ Xxxxxx X. Xxxxxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
----------------------------------
Title: Director
---------------------------------
Revolving Commitment: $16,666,666
Swingline Commitment: $10,000,000
S-1
WACHOVIA BANK, NATIONAL ASSOCIATION, AS A
LENDER
By: /s/ J. Xxxxxx Xxxxxx
----------------------------------------
Name: J. Xxxxxx Xxxxxx
-----------------------------------
Title: Vice President
----------------------------------
Revolving Commitment: $13,333,333
S-2
BNP PARIBAS, AS A LENDER
By:
----------------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
Revolving Commitment: $10,000,000
S-3
Accepted and Agreed to as of the Amendment
No. 1 Effective Date:
SYKES GLOBAL HOLDINGS, LLC
XXXXX XX HOLDINGS, LLC
SYKES FINANCIAL SERVICES, INC.
By: /s/ W. Xxxxxxx Xxxxxxx
---------------------------------------
Name: W. Xxxxxxx Xxxxxxx
Title: Senior Vice President and
Chief Financial Officer
SYKES REALTY, INC.
By: /s/ W. Xxxxxxx Xxxxxxx
---------------------------------------
Name: W. Xxxxxxx Xxxxxxx
Title: Vice President and
Chief Financial Officer
XXXXX ENTERPRISES-SOUTH AFRICA, INC.
By: /s/ W. Xxxxxxx Xxxxxxx
---------------------------------------
Name: W. Xxxxxxx Xxxxxxx
Title: President
S-4
Schedule I-1
PRICING GRID
Leverage Ratio Applicable Margin Applicable Percentage
(per annum) (per annum)
---------------------------------------------------
Base Rate LIBOR Commitment Fee
--------- ----- ------------------
Level I: <0.75 0.50% 1.50% 0.50%
-
Level II: > 0.75 and <1.50 1.00% 2.00% 0.625%
-
Level III: > 1.50 1.50% 2.50% 0.75%
Schedule I-1
