Exhibit 10.53
FIRST AMENDMENT AGREEMENT
This FIRST AMENDMENT AGREEMENT (this "Amendment") is made as of the 18th
day of October, 2004, by and among:
(a) XXXXX ENTERPRISES, INCORPORATED, a Florida corporation ("Borrower");
(b) the lenders listed on Schedule 1 to the Credit Agreement (collectively,
the "Lenders" and, individually, each a "Lender");
(c) KEYBANK NATIONAL ASSOCIATION, as lead arranger, book runner and
administrative agent for the Lenders under this Agreement ("Agent"); and
(d) BNP PARIBAS, as documentation agent.
WHEREAS, Borrower, Agent and the Lenders are parties to that certain Credit
Agreement, dated as of March 15, 2004, that provides, among other things, for
loans and letters of credit aggregating Fifty Million Dollars ($50,000,000), all
upon certain terms and conditions (as the same may from time to time be 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 and add certain provisions
thereto; and
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;
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. Notice of Foreign Restructuring. Borrower has notified Agent and the
Lenders that it plans to modify its organizational structure in order to
simplify operations, reduce administrative costs and provide overall greater
efficiencies among its Foreign Subsidiaries (the "Foreign Restructuring"). As
part of the Foreign Restructuring, Borrower has notified Agent and the Lenders
that:
(a) Creation of Foreign Subsidiaries. Borrower has created three new
Foreign Subsidiaries, (i) Sykes (Bermuda) Holdings Limited, a company
organized under the laws of Bermuda ("Bermuda Holding Co."), (ii) Sykes
Offshore Holdings Limited, another company organized under the laws of
Bermuda ("Bermuda Co."), and (iii) SEI International Services S.a.r.l., a
company organized under the laws of Luxembourg ("Luxembourg Co."). As of
the date hereof, (A) Bermuda Holding Co. is a wholly-owned first-tier
Foreign Subsidiary of Xxxxx XX Holdings LLC, Bermuda Co. is a wholly-owned
Foreign Subsidiary of Bermuda Holding Co., and Luxembourg Co. is a
wholly-owned Foreign Subsidiary of Bermuda Co.
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(b) Transfer of Assets to Luxembourg Co. On the date hereof, Xxxxx XX
Holdings LLC will transfer its 99.99% ownership interest in Sykes
Investments CV to Luxembourg Co. through a series of intercompany
transfers. On October 19, 2004, Sykes Global Holdings LLC will sell its
0.01% ownership interest in Sykes Investments CV to Luxembourg Co. in
return for a promissory note issued by Luxembourg Co., which note will be
transferred to Bermuda Holding Co. in consideration for shares representing
approximately 0.01% of its outstanding stock. Thereafter, prior to December
31, 2005, through a series of intercompany transfers, Borrower will
transfer all of its ownership interests in McQueen International Limited
and Xxxxx Latin America, S.A. to Luxembourg Co.
(c) Dissolution of Xxxxx Enterprises of Canada. Prior to December 31,
2005, Borrower will liquidate Xxxxx Enterprises of Canada, a Dormant
Subsidiary.
2. Consent to Foreign Restructuring. Agent and the Lenders hereby consent
to the Foreign Restructuring on the conditions that:
(a) Pledge of First-Tier Foreign Subsidiary Stock. Pursuant to Section
5.18 (Subsidiary Guaranties and Pledge of Stock) of the Credit Agreement,
any time a first-tier Foreign Subsidiary of a Domestic Subsidiary (other
than a Dormant Subsidiary) is created, such Domestic Subsidiary is
required, among other things, to pledge to Agent, for the benefit of the
Lenders, sixty-five percent (65%) of the outstanding shares of such Foreign
Subsidiary. In connection with the creation of Bermuda Holding Co.,
Borrower agrees to execute and deliver the documents required by Section
5.18 of the Credit Agreement on or before January 31, 2005.
(b) No Default. No Default or Event of Default exists, or, immediately
after the completion of the Foreign Restructuring, will exist.
3. Amendment to Credit Agreement. The Credit Agreement is hereby amended to
delete Schedule 3 (Pledged Securities) therefrom and to insert in place thereof
a new Schedule 3 in the form of Schedule 3 hereto.
4. Return of Intercompany Note. Following the transfer of the stock of
Sykes Investments C.V. to Luxembourg Co., Sykes Investments C.V. will no longer
be a first-tier Foreign Subsidiary. Therefore, Agent, on behalf of the Lenders,
will promptly return to Borrower, without recourse, the Intercompany Note issued
by Sykes Investments C.V. that was pledged by Borrower to Agent, for the benefit
of the Lenders, on the Closing Date as an alternative to the sixty-five percent
(65%) pledge requirement set forth in Section 5.18 of the Credit Agreement.
5. Release of Security Interest Under Borrower Pledge Agreement. In
connection with the Foreign Restructuring, effective as of October 18, 2004,
Agent and the Lenders hereby release and terminate their security interest in
the shares of McQueen International Limited, Xxxxx Enterprises of Canada and
Sykes Latin America, S.A., under that certain Pledge Agreement, dated March 15,
2004, by Borrower in favor of Agent, for the benefit of the Lenders.
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6. 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.
7. Post-Closing Deliveries. No later than January 31, 2005 (unless a longer
period is agreed to in writing by Agent), Borrower shall deliver to Agent, for
the benefit of the Lenders, a Pledge Agreement executed by Xxxxx XX Holdings LLC
pledging to Agent, for the benefit of the Lenders, 65% of the shares of Bermuda
Holding Co.
8. 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.
9. 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 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.
10. 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.
11. 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.
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12. Headings. The headings, captions and arrangements used in this
Amendment are for convenience only and shall not affect the interpretation of
this Amendment.
13. 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.
14. 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.
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15. 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.
XXXXX ENTERPRISES, INCORPORATED
By: /s/ W. Xxxxxxx Xxxxxxx
------------------------------------
W. Xxxxxxx Xxxxxxx, Group Executive,
Senior Vice President - Finance
KEYBANK NATIONAL ASSOCIATION,
as Agent and as a Lender
By: /s/ Xxxx Xxxxxxxxxx
------------------------------------
Xxxx Xxxxxxxxxx
Vice President
BNP PARIBAS,
as Documentation Agent and as a Lender
By: /s/ Xxxxx Xxxxxx
------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
By: /s/ Xxxx Xxxxxxx
------------------------------------
Name: Xxxx Xxxxxxx
Title: Vice President
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ACKNOWLEDGMENT AND AGREEMENT
The undersigned consent and agree to and acknowledge the terms of the
foregoing First Amendment Agreement dated as of October 18, 2004. 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 BORROWERS, 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.
XXXXX ENTERPRISES - SOUTH AFRICA, INC. FINANCIAL SERVICES WORLDWIDE, LLC
By: /s/ Xxxxx Xxxxxxxx By: /s/ Xxxxxxx X. Xxxxx
---------------------------------- -----------------------------------
Name: Xxxxx Xxxxxxxx Name: Xxxxxxx X. Xxxxx
Title: Vice President Title: Director
SYKES REALTY, INC. MCQUEEN INTERNATIONAL INCORPORATED
By: /s/ Xxxxx X. Xxxxxx By: /s/ W. Xxxxxxx Xxxxxxx
---------------------------------- -----------------------------------
Name: Xxxxx X. Xxxxxx Name: W. Xxxxxxx Xxxxxxx
Title: Vice President Title: Director
Sykes Global Holdings LLC Xxxxx XX Holdings LLC
By: /s/ W. Xxxxxxx Xxxxxxx By: /s/ W. Xxxxxxx Xxxxxxx
---------------------------------- -----------------------------------
Name: W. Xxxxxxx Xxxxxxx Name: W. Xxxxxxx Xxxxxxx
Title: Senior Vice President Title: Senior Vice President
SYKES E-COMMERCE, INCORPORATED
By: /s/ Xxxxx X. Xxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Director
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SCHEDULE 3
PLEDGED SECURITIES
Pledged
Name of Subsidiary Jurisdiction Pledgor Percentage
----------------------------------- ------------ ------------------------------- ----------
Xxxxx Enterprises Incorporated S.L. Spain Xxxxx Enterprises, Incorporated 65%
Xxxxx (Bermuda) Holdings Limited Bermuda Xxxxx XX Holdings LLC 65%
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