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EXHIBIT 10.1
CREDIT AGREEMENT
THIS CREDIT AGREEMENT dated as of February 17, 1998 (the "Credit
Agreement") by and between
XXXXX ENTERPRISES, INCORPORATED, a Florida corporation (the
"Borrower"); and
NATIONSBANK, N.A., a national banking association existing under the
laws of the United States and having offices in Charlotte, North Carolina (the
"Bank").
RECITALS:
A. The Borrower has applied to the Bank for credit facilities in
the aggregate amount of $15,000,000.00, to be borrowed for working capital
needs, for the refinancing of indebtedness to the Bank, for documentary and
standby letters of credit and for foreign exchange transactions.
B. The Bank is willing to provide such credit facilities for the
purposes stated hereinabove based on the terms and conditions set forth in this
Credit Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt of
which is hereby acknowledged, the Borrower and the Bank hereby agree as follows:
ARTICLE I
Definitions
1.01 For the purposes hereof:
"Advances" shall have the meaning given to such term in
Section 2.01;
"Belgian Francs Advances" shall have the meaning given to such
term in Section 2.01;
"Belgian Francs Note" shall have the meaning given to such
term in Section 2.04;
"Belgian Subsidiary" means Sykes Holdings of Belgium B.V.B.A;
"Credit Documents" means this Credit Agreement, the Notes, the
Letter of Credit Applications, the Guaranty Agreements, the Pledge
Agreements, and all other related agreements and documents issued or
delivered hereunder or thereunder or pursuant hereto or thereto ;
"Credit Party" means the Borrower, any of the Guarantors or
any of the Pledgors;
"Deutsche Marks Advances" shall have the meaning given to such
term in Section 2.01;
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"Deutsche Marks Note" shall have the meaning given to such
term in Section 2.05;
"Dollar Advances" shall have the meaning given to such term in
Section 2.01;
"Dollar Note" shall have the meaning given to such term in
Section 2.09;
"English Subsidiary" means __________________________________;
"Exchange Rate" means, in relation to the purchase of one
currency (for purposes of this definition the "first currency") with
another currency (for purposes of this definition the "second
currency") on a given date, the Bank's spot rate of exchange, for the
amount in question, in the London interbank market at or about 11:00
a.m. Charlotte, North Carolina time on such date for the purchase of
the first currency with the second currency, for delivery two Business
Days later;
"Foreign Currency Notes" shall mean the Krona Note, the
Guilder Note, the Belgian Francs Note, the Deutsche Marks Note, the
Pound Sterling Note, the Punts Note and the French Francs Note;
"Foreign Subsidiary Borrowers" shall mean the Swedish
Subsidiary, the Netherlands Subsidiaries, the Belgian Subsidiary, the
German Subsidiary, the English Subsidiary, the Irish Subsidiary and the
French Subsidiary;
"French Francs Advances" shall have the meaning given to such
term in Section 2.01;
"French Francs Note" shall have the meaning given to such term
in Section 2.08;
"French Subsidiary" means _____________________________;
"German Subsidiary" means Xxxxx Enterprises GmbH;
"Guaranty Agreements" means (i) the Guaranty Agreement
executed by the Borrower in favor of the Bank whereby the Borrower
guarantees the repayment of the obligations of the Foreign Subsidiary
Borrowers to the Bank under the Foreign Currency Notes and (ii) the
Guaranty Agreements executed by the Material Subsidiaries of the
Borrower in favor of the Bank whereby the Material Subsidiaries
guarantee the repayment of the obligations of the Borrower to the Bank
under the Credit Documents;
"Guilder Advances" shall have the meaning given to such term
in Section 2.01;
"Guilder Note" shall have the meaning given to such term in
Section 2.03;
"Krona Advances" shall have the meaning given to such term in
Section 2.01;
"Krona Note" shall have the meaning given to such term in
Section 2.02;
"Irish Subsidiary" means __________________________________;
"Letter of Credit Applications" shall have the meaning given
to such term in Section 2.13 hereof;
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"Letter of Credit Obligations" shall have the meaning given to
such term in Section 2.13 hereof;
"Letters of Credit" shall have the meaning given to such term
in Section 2.13 hereof;
"Netherlands Subsidiaries" means Xxxxx Enterprises
Incorporated Holdings BV and Xxxxx Enterprises Incorporated BV;
"Notes" means a collective reference to the Dollar Note and
the Foreign Currency Notes;
"Pledge Agreements" means any pledge agreements entered into
in accordance with the provisions of Section 4.02, in each case as
amended and modified, to secure on a pari passu basis the obligations
owing under this Credit Agreement and the Indebtedness under the
Syndicated Credit Agreement;
"Pledgors" means the Persons executing Pledge Agreements
pursuant to Section 7.11;
"Pound Sterling Advances" shall have the meaning given to such
term in Section 2.01;
"Pound Sterling Note" shall have the meaning given to such
term in Section 2.06;
"Punts Advances" shall have the meaning given to such term in
Section 2.01;
"Punts Note" shall have the meaning given to such term in
Section 2.07;
"Revolving Loan Committed Amount" shall have the meaning given
to such term in Section 2.01 hereof;
"Swedish Subsidiary" means Datasvar Support AB, Stockholm,
Sweden;
"Syndicated Credit Agreement" means that certain Credit
Agreement, dated as of February 17, 1998, by and among the Borrower,
the lenders parties thereto and NationsBank, N.A., as agent for such
lenders, together with all amendments and modifications thereto and
replacements therefor;
"Termination Date" means February 17, 2001.
1.02 Capitalized terms used herein and not otherwise defined herein
shall have their respective meanings as set forth in the Syndicated Credit
Agreement.
ARTICLE II
Credit Extensions
2.01 The Bank agrees, on the terms herein set forth, to make
revolving loan advances (the "Advances") from time to time during the period
from the date hereof to the Termination Date in an amount equal to $15,000,000
(or such higher amount as the parties hereto may from time to time agree) (the
"Revolving Loan Committed Amount"). The Bank agrees that a portion of the
Advances shall be available to (a) the Swedish Subsidiary in Krona (the "Krona
Advances") in an aggregate amount up to 14,000,000 Krona at any time
outstanding, (b) the Netherlands Subsidiaries in Guilder (the "Guilder
Advances") in an aggregate amount up to 4,000,000 Guilder, (c) the Belgian
Subsidiary in Belgian Francs (the "Belgian Franc Advances") in an aggregate
amount up to 1,000,0000 Belgian Francs, (d)
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the German Subsidiary in Deutsche Marks (the "Deutsche Marks Advances") in an
aggregate amount up to 2,500,000 Deutsche Marks, (e) the English Subsidiary in
British Pound Sterling (the "Pound Sterling Advances") in an aggregate amount up
to ___________ British Pound Sterling, (f) the Irish Subsidiary in Punts (the
"Punts Advances") in an aggregate amount up to ___________ Punts and (g) the
French Subsidiary in French Francs (the "French Francs Advances") in an
aggregate amount up to _______ French Francs. The Bank agrees that the remaining
portion of the Advances shall be available to the Borrower in U.S. dollars (the
"Dollar Advances"). Within the limits set forth herein and in the Foreign
Currency Notes and the Dollar Note, the Bank shall make Advances, accept
payments and prepayments pursuant to the terms hereof and readvance any amount
so paid or prepaid.
2.02 The Krona Advances shall be made, shall be repaid and shall
bear interest in accordance with the terms of that certain Promissory Note dated
____________ executed by the Swedish Subsidiary in favor of the Bank in the
original principal amount of up to 14,000,000 Krona (the "Krona Note"), the
terms of which are incorporated herein by reference.
2.03 The Guilder Advances shall be made, shall be repaid and shall
bear interest in accordance with the terms of that certain Promissory Note dated
_____________ executed by the Netherlands Subsidiaries in favor of the Bank in
the original principal amount of up to 4,000,000 Guilder (the "Guilder Note"),
the terms of which are incorporated herein by reference.
2.04 The Belgian Francs Advances shall be made, shall be repaid and
shall bear interest in accordance with the terms of that certain Promissory Note
dated _____________ executed by the Belgian Subsidiary in favor of the Bank in
the original principal amount of up to 1,000,000 Belgian Francs (the "Belgian
Francs Note"), the terms of which are incorporated herein by reference.
2.05 The Deutsche Marks Advances shall be made, shall be repaid and
shall bear interest in accordance with the terms of that certain Promissory Note
dated _____________ executed by the German Subsidiary in favor of the Bank in
the original principal amount of up to 2,500,000 Deutsche Marks (the "Deutsche
Marks Note"), the terms of which are incorporated herein by reference.
2.06 The Pound Sterling Advances shall be made, shall be repaid and
shall bear interest in accordance with the terms of that certain Promissory Note
dated _____________ executed by the English Subsidiary in favor of the Bank in
the original principal amount of up to _________ Pounds Sterling (the "Pound
Sterling Note"), the terms of which are incorporated herein by reference.
2.07 The Punts Advances shall be made, shall be repaid and shall
bear interest in accordance with the terms of that certain Promissory Note dated
_____________ executed by the Irish Subsidiary in favor of the Bank in the
original principal amount of up to _________ Punts (the "Punts Note"), the terms
of which are incorporated herein by reference.
2.08 The French Franc Advances shall be made, shall be repaid and
shall bear interest in accordance with the terms of that certain Promissory Note
dated _____________ executed by the French Subsidiary in favor of the Bank in
the original principal amount of up to _________ French Francs (the "French
Francs Note"), the terms of which are incorporated herein by reference.
2.09 The Dollar Advances shall be made, shall be repaid and shall
bear interest in accordance with the terms of that certain Promissory Note of
even date herewith executed by the Borrower in favor of the Bank in the original
principal amount of up to $15,000,000 (the "Dollar Note"), the terms of which
are incorporated herein by reference.
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2.10 If the U.S. dollar equivalent of the outstanding principal
balance of the Foreign Currency Notes (based upon the most recently available
Exchange Rate) plus the outstanding principal balance of the Dollar Note plus
the U.S. dollar equivalent of the then outstanding Letter of Credit Obligations
plus the U.S. dollar equivalent of the aggregate amount of foreign exchange
contracts margined at 15% of their U.S. dollar value shall at any time exceed
U.S. $15,000,000, the Borrower shall within two Business Days after receiving
notice thereof from the Bank make a repayment to the Bank for purposes of
eliminating such excess, with such repayment to be applied first to the Dollar
Note and then to the Foreign Currency Notes (pro rata based on outstandings) to
the extent of any surplus payment amount. The Borrower agrees to deliver to the
Bank within 15 days after the end of each month in which Advances are
outstanding a certificate signed by its chief financial officer setting forth as
of the last day of such month (i) the U.S. dollar equivalent of the outstanding
principal balance of the Foreign Currency Notes (based upon the Exchange Rate as
of the last day of such month), (ii) the outstanding principal balance of the
Dollar Note, (iii) the U.S. dollar equivalent of the outstanding Letter of
Credit Obligations (based upon the Exchange Rate as of the last day of such
month), (iv) the U.S. dollar equivalent of the aggregate amount of foreign
exchange contracts margined at 15% of their U.S. dollar value (based upon the
Exchange Rate as of the last day of such month), (v) the sum of items (i), (ii),
(iii) and (iv) above and (vi) and the difference between the Revolving Loan
Committed Amount and the sum of items (i), (ii), (iii) and (iv) above.
2.11 The obligation of the Bank to make any Advance or to issue any
Letter of Credit shall be subject to the satisfaction of the following
conditions:
(a) the representations and warranties set forth in
Article III hereof shall be true and correct in all material respects
as of the day of the making of such Advance or the issuance of such
Letter of Credit, except to the extent any such representation or
warranty relates to a prior date;
(b) at the time of the making of and immediately after
the making of such Advance or the issuance of such Letter of Credit
there shall have occurred or be continuing no Event of Default, or
event which upon notice or lapse of time or both would constitute an
Event of Default; and
(c) immediately after the making of such Advance or the
issuance of such Letter of Credit, the sum of the U.S. dollar
equivalent of the outstanding principal balance of the Foreign Currency
Notes (based upon the most recently available Exchange Rate) plus the
outstanding principal balance of the Dollar Note plus the U.S. dollar
equivalent of the then outstanding Letter of Credit Obligations (based
upon the most recently available Exchange Rate) plus the U.S. dollar
equivalent of the aggregate amount of foreign exchange contracts
margined at 15% of their U.S. dollar value (based upon the most
recently available Exchange Rate) shall not exceed U.S. $15,000,000.
Each Advance made at the request of the Borrower or any Foreign Subsidiary
Borrower, as the case may be, hereunder shall be deemed to be a reaffirmation on
the date of such Advance as to the matters specified in subsections (a) and (b)
hereof.
2.12 The Borrower shall have the right from time to time to
voluntarily reduce the Revolving Loan Committed Amount; provided, however, if
upon such reduction the U.S. dollar equivalent of the outstanding principal
balance of the Foreign Currency Notes (based upon the most recently available
Exchange Rate) plus the outstanding principal balance of the Dollar Note plus
the U.S. dollar equivalent of the then outstanding Letter of Credit Obligations
(based upon the most recently available Exchange Rate) plus the U.S. dollar
equivalent of the aggregate amount of foreign exchange contracts margined at 15%
of their
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U.S. dollar value (based upon the most recently available Exchange Rate) shall
exceed such reduced Revolving Loan Committed Amount, the Borrower shall make a
repayment to the Bank for purposes of eliminating such excess, with such
repayment to be applied first to the Dollar Note and then to the Foreign
Currency Notes (based on outstandings), to the extent of any surplus payment
amount.
2.13 The Bank also agrees to issue standby and documentary letters
of credit (the "Letters of Credit"), in U.S. dollars or in any of the applicable
currencies under the Foreign Currency Notes, on the application of the Borrower
from time to time in accordance with the following terms and conditions:
(a) the Borrower will execute a letter of credit
application on the Bank's standard form in connection with the issuance
of each Letter of Credit (hereinafter the "Letter of Credit
Applications");
(b) The form of each Letter of Credit must be
satisfactory to the Bank in its reasonable discretion;
(c) No Letter of Credit shall have a term in excess of
one year;
(d) No Letter of Credit shall have an expiration date
more than six months beyond the Termination Date;
(e) The U.S. dollar equivalent of the aggregate undrawn
amounts of the Letters of Credit at any time outstanding plus the U.S.
dollar equivalent of the outstanding principal amount of amounts drawn
under the Letters of Credit and not reimbursed by the Borrower (the
"Letter of Credit Obligations") plus the outstanding principal balance
of the Dollar Advances plus the U.S. dollar equivalent of the Foreign
Currency Notes (based upon the most recently available Exchange Rate)
plus the U.S. dollar equivalent of the aggregate amount of foreign
exchange contracts margined at 15% of their U.S. dollar value (based
upon the most recently available Exchange Rate) shall not exceed U.S.
$15,000,000;
(f) The Bank is authorized to reimburse itself for
amounts drawn under the Letters of Credit by disbursing directly to
itself proceeds of the Dollar Advances;
(g) Amounts drawn under the Letters of Credit shall be
payable in accordance with the terms of the Letter of Credit
Applications;
(h) If the expiration date of any Letter of Credit
extends beyond the Termination Date, the Borrower shall pay to the Bank
on the Termination Date an amount equal to the U.S. dollar equivalent
of the then outstanding Letter of Credit Obligations with respect to
such Letter of Credit to be held in an interest bearing cash collateral
account in the name of the Borrower as security for the reimbursement
obligations which thereafter may arise on account of subsequent
drawings or payments on any such Letter of Credit;
(i) The Borrower shall pay the Bank a 1% per annum fee on
the undrawn amount of each standby Letter of Credit, such fee to
payable _________________. The Borrower shall pay the Bank the standard
fees of the Bank upon the issuance of any documentary Letter of Credit;
(j) If at any time after the date hereof, and from time
to time, the Bank reasonably determines that the adoption or
modification of any applicable law, rule or regulation regarding
taxation, the Bank's required levels of reserves, deposits, insurance
or capital (including any allocation of capital requirements or
conditions), or similar requirements, or any interpretation or
administration
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thereof by any governmental authority, central bank or comparable
agency charged with the interpretation, administration or compliance of
the Bank with any of such requirements, has or would have the effect of
(i) increasing the Bank's costs relating to the Letters of Credit
hereunder, or (ii) reducing the yield or rate of return of the Bank on
the Letters of Credit hereunder, to a level below that which the Bank
could have achieved but for the adoption or modification of any such
requirements, the Borrower shall, within 15 days of any written request
(which request shall state in reasonable detail the basis therefor) by
the Bank, pay to the Bank such additional amounts as will compensate
the Bank for such increase in costs or reduction in yield or rate of
return of the Bank. No failure by the Bank to immediately demand
payment of any additional amounts payable hereunder shall constitute a
waiver of the Bank's right to demand payment of such amounts at any
subsequent time. Nothing herein contained shall be construed or so
operate as to require the Borrower to pay any interest, fees, costs or
charges greater than is permitted by applicable law.
ARTICLE III
Representations and Warranties
The Borrower hereby represents and warrants to the Bank that:
3.01 Corporate Power; Authorization; Enforceable Obligations .
Each of the Credit Parties has full power and authority and the legal
right to make, deliver and perform the Credit Documents to which it is party and
has taken all necessary corporate action to authorize the execution, delivery
and performance by it of the Credit Documents to which it is party. No consent
or authorization of, filing with, notice to or other act by or in respect of,
any Governmental Authority or any other Person is required in connection with
the borrowings hereunder or with the execution, delivery or performance of any
Credit Document by the Credit Parties (other than those which have been
obtained,) or with the validity or enforceability of any Credit Document against
the Credit Parties (except such filings as are necessary in connection with the
perfection of the Liens created by such Credit Documents). Each Credit Document
to which the Credit Parties are a party has been duly executed and delivered on
behalf of such Credit Parties. Each Credit Document to which it is a party
constitutes a legal, valid and binding obligation of such Credit Parties
enforceable against such Credit Party in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
3.02 No Legal Bar; No Default.
The execution, delivery and performance of the Credit Documents, the
borrowings thereunder and the use of the Advances and the Letters of Credit will
not violate any Requirement of Law or any Contractual Obligation of any member
of the Consolidated Group (except those as to which waivers or consents have
been obtained), and will not result in, or require, the creation or imposition
of any Lien on any of their respective properties or revenues pursuant to any
Requirement of Law or Contractual Obligation other than the Liens arising under
or contemplated in connection with the Credit Documents. No member of the
Consolidated Group is in default under or with respect to any of its Contractual
Obligations in any respect which would reasonably be expected to have a Material
Adverse Effect. No Default or Event of Default has occurred and is continuing.
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3.03 Federal Regulations.
No part of the proceeds of any Advances or Letter of Credit hereunder
will be used directly or indirectly for any purpose which violates, or which
would be inconsistent with, the provisions of Regulation G, T, U or X of the
Board of Governors of the Federal Reserve System as now and from time to time
hereafter in effect. No member of the Consolidated Group owns "margin stock"
except as identified in the financial statements referred to in Section 6.1 of
the Syndicated Credit Agreement and the aggregate value of all "margin stock"
owned by each member of the Consolidated Group does not exceed 25% of the value
of its assets.
3.04 Purpose of Extensions of Credit.
The Advances will be used to support the Borrower's needs for general
working capital, letters of credit and foreign exchange transactions.
3.05 Incorporated Representations and Warranties.
The representations and warranties contained in Sections 6.1, 6.2, 6.3,
6.6, 6.7, 6.9, 6.10, 6.12, 6.13, 6.14 and 6.15 of the Syndicated Credit
Agreement, as in effect as of the date hereof (the "Incorporated
Representations"), are hereby incorporated by reference and shall be binding on
the Borrower as if set forth fully herein. The incorporation by reference to the
Syndicated Credit Agreement of the Incorporated Representations pursuant to this
Section 3.05 shall survive the termination of the Syndicated Credit Agreement.
For purposes of the incorporation of the Incorporated Representations pursuant
to this Section 3.05, all references in the Incorporated Representations to "the
Agent", "a Lender", "the Lenders" or "the Required Lenders" shall be deemed to
refer to the Bank, all references in the Incorporated Representations to the
"Credit Agreement", or any similar references, shall be deemed to refer to this
Credit Agreement, all references in the Incorporated Representations to a "Note"
or the "Notes" shall be deemed to refer to one or more of the Notes as defined
in Section 1.01 hereof and all references in the Incorporated Representations to
a "Credit Document" or the "Credit Documents", or any similar references, shall
be deemed to refer to one or more of the Credit Documents as defined in Section
1.01 hereof.
ARTICLE IV
Covenants
The Borrower covenants and agrees that from the date hereof and until
payment in full of all principal and interest on the Notes and the Letter of
Credit Obligations and until the Bank's obligation to extend credit hereunder
has been terminated, the Borrower hereby agrees as follows:
4.01 Incorporated Covenants.
The affirmative and negative covenants contained in Sections 7.1
through 7.9 and Sections 8.1 through 8.9 of the Syndicated Credit Agreement, as
in effect as of the date hereof (the "Incorporated Covenants"), are hereby
incorporated by reference and shall be binding on the Borrower as if set forth
fully herein. The incorporation by reference to the Syndicated Credit Agreement
of the Incorporated Covenants pursuant to this Section 4.01 shall survive the
termination of the Syndicated Credit Agreement. For purposes of the
incorporation of the Incorporated Covenants pursuant to this Section 4.01, all
references in the Incorporated Covenants to "the Agent", "a Lender", "the
Lenders" or "the Required Lenders" shall be deemed to refer
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to the Bank, all references in the Incorporated Covenants to the "Credit
Agreement", or any similar references, shall be deemed to refer to this Credit
Agreement, all references in the Incorporated Covenants to a "Note" or the
"Notes" shall be deemed to refer to one or more of the Notes was defined in
Section 1.01 hereof , all references in the Incorporated Covenants to a "Credit
Document" or the "Credit Documents", or any similar references, shall be deemed
to refer to one or more of the Credit Documents as defined in Section 1.01
hereof and Section 8.1(g) shall refer to the Indebtedness under the Syndicated
Credit Agreement .
4.02 Additional Guaranties and Stock Pledges.
If a Subsidiary of the Borrower becomes a Material Subsidiary, then the
Borrower will promptly notify the Bank thereof and cause such Material
Subsidiary to:
(a) execute a guaranty agreement in a form reasonably
satisfactory to the Bank (or in lieu thereof with respect to any
Foreign Subsidiary which is a Material Subsidiary, the Borrower may
deliver stock certificates and related pledge agreement evidencing the
pledge of 66% of the Voting Stock of such Foreign Subsidiary, together,
with undated stock transfer powers executed in blank, such pledge
agreement to secure on a pari passu basis the obligations of the Credit
Parties under the Credit Documents and the Indebtedness under the
Syndicated Credit Agreement); and
(b) deliver such supporting resolutions, incumbency
certificates, corporate formation and organizational documentation and
opinions of counsel as the Bank may reasonably request.
4.03 Banking Relationship. The Borrower shall maintain a primary
banking relationship with the Bank.
ARTICLE V
Events of Default and Acceleration
5.01 Events of Default.
An Event of Default shall exist upon the occurrence of any of the
following specified events (each an "Event of Default"):
(a) Payment. Any Credit Party shall
(i) default in the payment when due of any principal of any of
the Notes or any of the Letter of Credit Applications, or
(ii) default, and such defaults shall continue for five (5) or
more Business Days, in the payment when due of any interest on the
Notes, or of any fees or other amounts owing hereunder, under any of
the other Credit Documents or in connection herewith or therewith; or
(b) Representations. Any representation, warranty or statement
made or deemed to be made herein, in any of the other Credit Documents,
or in any statement or certificate delivered or required to be
delivered pursuant hereto or thereto shall prove untrue in any material
respect on the date as of which it was deemed to have been made; or
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(c) Covenants.
(i) A default in the due performance or observance of any
term, covenant or agreement contained in Section 7.2, 7.3(a), 7.9, or
8.1 through 8.9, inclusive of the Incorporated Covenants or Section 4.2
hereof, or
(ii) A default in the due performance or observance by it of
any term, covenant or agreement (other than those referred to in
subsections (a), (b) or (c)(i) of this Section 5.01) contained in this
Credit Agreement and such default shall continue unremedied for a
period of at least 30 days after the earlier of a responsible officer
of a Credit Party becoming aware of such default or notice thereof by
the Agent; or
(d) Other Credit Documents. (i) Any Credit Party shall default in
the due performance or observance of any material term, covenant or agreement in
any of the other Credit Documents (subject to applicable grace or cure periods,
if any), or (ii) except as to the Credit Party which is dissolved, released or
merged or consolidated out of existence as the result of or in connection with a
dissolution, merger or disposition permitted by Section 8.3(a), Section 8.3(b)
or Section 8.3(c) of the Incorporated Covenants, any Credit Document shall fail
to be in full force and effect or to give the Bank any material part of the
Liens, rights, powers and privileges purported to be created thereby; or
(e) Guaranties. Except as to the Credit Party which is dissolved,
released or merged or consolidated out of existence as the result of or in
connection with a dissolution, merger or disposition permitted by Section
8.3(a), Section 8.3(b) or Section 8.3(c) of the Incorporated Covenants, the
guaranty given by any Guarantor hereunder or any material provision thereof
shall cease to be in full force and effect, or any Guarantor hereunder or any
Person acting by or on behalf of such Guarantor shall deny or disaffirm such
Guarantor's obligations under such guaranty, or any Guarantor shall default in
the due performance or observance of any term, covenant or agreement on its part
to be performed or observed pursuant to any guaranty; or
(f) Incorporated Events of Default. The occurrence of an "Event of
Default" under and as defined in the Syndicated Credit Agreement, as in effect
as of the date hereof which "Events of Default" (the "Incorporated Events of
Default") are hereby incorporated by reference and shall be binding on the
Borrower as if set forth fully herein. The incorporation by reference to the
Syndicated Credit Agreement of the Incorporated Events of Default shall survive
the termination of the Syndicated Credit Agreement. For purposes of the
incorporation of the Incorporated Covenants pursuant to this Section 6.1(f), all
references in the Incorporated Events of Default to "the Agent", "a Lender",
"the Lenders" or "the Required Lenders" shall be deemed to refer to the Bank,
all references in the Incorporated Events of Default to the "Credit Agreement",
or any similar references, shall be deemed to refer to this Credit Agreement,
all references in the Incorporated Default to a "Note" or the "Notes" shall be
deemed to refer to one or more of the Notes as defined in Section 1.01 hereof
and all references in the Incorporated Events of Default to a "Credit Document"
or the "Credit Documents", or any similar references, shall be deemed to refer
to one or more of the Credit Documents as defined in Section 1.01 hereof.
5.02 Upon the occurrence of any such event of default (taking into
account applicable grace periods, if any, as provided in Section 5.01 hereof)
and unless the Bank agrees to waive in writing such an event of default:
(a) the Bank's commitment to make Advances shall
terminate and all of the indebtedness of any and every kind owing by
the Borrower to the Bank or any corporate affiliate of the Bank shall
become due and payable upon written notice to the Borrower (other than
an Event of Default described in Section 9.1(f) of the Incorporated
Events of Default in which case the Bank's commitment to make Advances
shall automatically terminate and such indebtedness shall become due
and payable
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immediately without necessity of written demand) without the necessity
of any other demand, presentment, protest or notice upon the Borrower,
all of which are hereby expressly waived by the Borrower;
(b) all of the obligations of the Borrower under the
Credit Documents shall thereupon be immediately due and payable without
the necessity of any other demand, presentment, protest or notice upon
the Borrower, all of which are hereby expressly waived by the Borrower;
(c) the Bank shall have the right, immediately and
without further action by it, to set-off against the Notes and the
Guaranty Agreement all money owed by the Bank in any capacity to any
Borrower, whether or not due, and the Bank shall be deemed to have
exercised such right of set-off and to have made a charge against any
such money immediately upon the occurrence of such event of default
even though such charge is made or entered on the books of the Bank
subsequent thereto; and
(d) the Bank may demand, and the Borrower shall
immediately pay to the Bank upon such demand, cash in an amount equal
to the then outstanding Letter of Credit Obligations and foreign
exchange contract obligations of the Borrower to the Bank which will be
held in an interest bearing cash collateral account in the name of the
Borrower and under the dominion and control of the Bank as additional
security for the reimbursement obligations which may thereafter arise
on account of subsequent drawings or payments under the Letters of
Credit or such foreign exchange contracts.
ARTICLE VI
Miscellaneous
6.01 Any notice shall be conclusively deemed to have been received
by any party hereto and be effective on the day on which delivered to such party
at the address set forth below or such other address as such party shall specify
to the other party in writing, or if sent prepaid by certified or registered
mail or by telegram or telex (where the receipt of such message is verified by
return) on the third Business Day after the day on which mailed (or sent),
addressed to such party at said address:
(a) if to any Borrower at the following address:
c/o Sykes Enterprises, Incorporated
000 Xxxxx Xxxxx Xxxxxx
Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx, Senior Vice President-
Finance, Treasurer and Chief Financial Officer
(b) if to the Bank:
NationsBank, N.A.
XxxxxxxXxxx Xxxxx, XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx,
Xx. Vice President
6.02 No failure or delay on the part of the Bank in the exercise of
any right, power or privilege hereunder or under any other Credit Document shall
operate as a waiver of any such right, power or privilege nor shall any preclude
any other or further exercise
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thereof. The rights and remedies herein provided are cumulative and not
exclusive or any rights or remedies provided by law.
6.03 All covenants, agreements, representations and warranties made
herein and in the other Credit Documents shall survive the making by the Bank of
the loans herein contemplated and the execution and delivery to the Bank of the
Credit Documents and shall continue in full force and effect so long as any of
the indebtedness of the Borrower to the Bank or any obligations of the Borrower
to the Bank remain outstanding and unpaid. Whenever in this Credit Agreement,
any of the parties hereto is referred to, such reference shall be deemed to
include the successors and assigns of such party and all covenants, provisions
and agreements by or on behalf of the Borrower which are contained in the Credit
Documents or this Credit Agreement shall inure to the benefit of the successors
and assigns of the Bank.
6.04 Subject to previously agreed upon limits, the Borrower agrees
to pay the costs and expenses of the Bank (including reasonable attorneys' fees)
in connection with the preparation, execution and delivery of the Credit
Documents and all other documents necessary to consummate the transactions
contemplated by the commitment letter of the Bank to the Borrower. The Borrower
also agrees to pay the costs and expenses of the Bank in connection with the
enforcement of the Credit Documents and this Credit Agreement, as well as any
actual filing and recording fees and stamp and other taxes with respect thereto.
6.05 No approval required by the Bank ("Approval") hereunder nor
any modification, amendment or waiver ("Waiver") of any provision of this Credit
Agreement or any other Credit Document, nor any consent to any departure by the
Borrower therefrom ("Consent") shall in any event be effective unless the same
shall be delivered in accordance with the provisions of Section 7.01 hereof, and
then such Approval, Waiver or Consent shall be effective only in the specific
instance and for the purpose for which given, but any such Approval, Waiver or
Consent when so signed shall be effective and binding upon the Bank. Notice to
or demand on the Borrower in any case shall not entitle the Borrower to any
other or further notice or demand in the same, similar or other circumstances.
6.06 Interest, fees and premiums hereunder shall be computed on the
basis of a three hundred sixty (360) day year for the actual number of days in
the interest period unless any promissory note for foreign currency borrowings
contains a contrary calculation.
6.07 Should any installment or other payment of the principal of or
interest on any Note become due and payable on other than a Business Day, the
maturity thereof shall be extended to the next succeeding Business Day
thereafter and in the case of an installment of principal, interest shall be
payable thereon at the rate per annum herein specified during such extension.
6.08 This Credit Agreement 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 Credit Agreement
to produce or account for more than one such counterpart.
6.09 The terms hereof shall extend to any subsequent holder of the
Notes and the Guaranty Agreement.
6.10 The term of this Credit Agreement shall be until payment in
full of all sums payable by the Borrower hereunder, under the Notes, or
otherwise payable to the Bank, howsoever evidenced, whichever is later.
6.11 All documents executed pursuant to the transactions
contemplated herein, including without limitation this Credit Agreement and each
of the Notes, shall be deemed
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to be contracts made under, and for all purposes shall be construed in
accordance with, the internal laws and judicial decisions of the State of North
Carolina. The Borrower hereby submits to the jurisdiction and venue of the state
and federal courts of North Carolina for the purposes of resolving disputes
hereunder or for the purposes of collection.
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IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be executed under seal by their duly authorized officers in Charlotte, North
Carolina at the offices of the Bank as of the day and year first above written.
XXXXX ENTERPRISES, INCORPORATED
ATTEST:
By By
---------------------------- ------------------------------------
Xxxxx X. Xxxxxxx -
Senior Vice President-Finance, Treasurer
and Chief Financial Officer
Title
-------------------------
(Corporate Seal)
NATIONSBANK, N.A.
By:
-----------------------------------------
Xxxxxxx X. Xxxxxxxx
Senior Vice President
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