SECOND AMENDMENT AGREEMENT
Exhibit 10.2
SECOND AMENDMENT AGREEMENT
This SECOND AMENDMENT AGREEMENT (this “Amendment”) is made as of the 16th day of
July, 2010 among:
(a) XXXXX ENTERPRISES, INCORPORATED, a Florida corporation (“Borrower”);
(b) the Lenders, as defined in the Credit Agreement, as hereinafter defined;
(c) KEYBANK NATIONAL ASSOCIATION, as the lead arranger, sole book runner and
administrative agent for the Lenders under the Credit Agreement (“Agent”);
(d) BANK OF AMERICA, N.A., as syndication agent;
(e) RBS CITIZENS, NATIONAL ASSOCIATION, as documentation agent; and
(f) HSBC BANK USA, NATIONAL ASSOCIATION and TORONTO DOMINION (NEW YORK), LLC, as a
co-managing agents.
WHEREAS, Borrower, Agent and the Lenders are parties to that certain Credit Agreement, dated
as of February 2, 2010, that provides, among other things, for loans and letters of credit
aggregating One Hundred Fifty Million Dollars ($150,000,000), all upon certain terms and conditions
(as amended and as the same may from time to time be further 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;
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; and
WHEREAS, unless otherwise specifically provided herein, the provisions of the Credit Agreement
revised herein are amended effective as of the date of this Amendment;
NOW, THEREFORE, in consideration of the premises and of the mutual covenants herein and for
other valuable consideration, the receipt and sufficiency of which is hereby acknowledged,
Borrower, Agent and the Lenders agree as follows:
1. Additions to Definitions in the Credit Agreement. Section 1.1 of the Credit
Agreement is hereby amended to add the following new definitions thereto:
“Corporate Structure Reorganization Date” means the date that Borrower has completed
the Corporate Structure Reorganization.
“Second Amendment Effective Date” means July 16, 2010.
2. Amendment to Schedules After the Corporate Structure Reorganization Date. Upon the
delivery by Borrower of the updated Schedules to the Credit Agreement pursuant to Section 5(d)
hereof, the Credit Agreement shall be amended to delete Schedule 1 (Guarantors of Payment),
Schedule 2 (Pledged Securities) and Schedule 6.1 (Corporate Existence;
Subsidiaries; Foreign Qualification) therefrom and to insert in place thereof, respectively, a new
Schedule 1, Schedule 2 and Schedule 6.1.
3. Consent to Corporate Structure Reorganization.
(a) Domestic Corporate Restructuring. Borrower has notified Agent and the Lenders
that Borrower is planning certain modifications to its domestic corporate structure. Specifically,
Borrower desires to (i) liquidate Xxxxx XX Holdings, LLC, a Delaware limited liability company and
a Guarantor of Payment, and Sykes Global Holdings, LLC, a Delaware limited liability company and a
Guarantor of Payment, and transfer the assets of each such Guarantor of Payment to Borrower
(collectively, the “Guarantor Liquidation”), and (ii) merge ICT International, Inc., a Delaware
corporation and a Guarantor of Payment with and into Sykes Acquisition, LLC, a Florida limited
liability company and a Guarantor of Payment (the “Guarantor Merger”). Following the Guarantor
Liquidation, Sykes (Bermuda) Holdings Limited, a Bermuda exempted company, will be a First-Tier
Foreign Subsidiary of Borrower.
(b) Foreign Corporate Restructuring. Borrower has also notified Agent and the Lenders
that Borrower is planning certain modifications to its foreign corporate structure. Specifically,
Borrower desires to transfer the ownership interests of ICT Financial Services Pty. Ltd., a company
organized under the laws of New South Wales and a first-tier Foreign Subsidiary, ICT Services of
Asia Pacific Pte. Ltd., a company organized under the laws of Singapore and a first-tier Foreign
Subsidiary, and ICT Group Netherlands B.V., a company organized under the laws of the Netherlands
and a first-tier Foreign Subsidiary (individually, each a “Foreign ICT Subsidiary” and,
collectively, the “Foreign ICT Subsidiaries”), held by Sykes Acquisition, LLC (as successor by
merger to ICT International, Inc.), from (i) Sykes Acquisition, LLC to Borrower, (ii) Borrower to
Sykes (Bermuda) Holdings Limited, (iii) Sykes (Bermuda) Holdings Limited to Sykes Offshore Holdings
Limited, a Bermuda exempted company, and (iv) Sykes Offshore Holdings Limited to SEI International
Services S.a.r.l., a company organized under the laws of Luxembourg (collectively, the “Foreign ICT
Subsidiary Equity Transfers” and, together with the Guarantor Liquidation and Guarantor Merger,
collectively, the “Corporate Structure Reorganization”). Following the Foreign ICT Subsidiary
Equity Transfers, the Foreign ICT Subsidiaries will cease to be first-tier Foreign Subsidiaries.
(c) Request for Consent. Certain of the transactions in the Corporate Structure
Reorganization are prohibited by one or more provisions in the Credit Agreement. Borrower hereby
specifically requests that Agent and the Lenders consent to (i) the Guarantor Liquidation and the
release of Xxxxx XX Holdings, LLC and Sykes Global Holdings, LLC from the
2
Guaranties of Payment executed and delivered to Agent, for the benefit of the Lenders, in
connection with the Credit Agreement, (ii) the Guarantor Merger, and (iii) the Foreign ICT
Subsidiary Equity Transfers. Borrower also requests that Agent, on behalf of the Lenders, pursuant
to Section 9.8 (Release of Guarantor of Payment or Pledge of Stock) of the Credit Agreement,
release its security interest in the capital stock or other equity interests of the Foreign ICT
Subsidiaries.
(d) Consent from Agent and the Lenders. Agent and the Lenders hereby consent to the
above requests on the following conditions:
(i) after giving effet to terms of this Amendment, Borrower shall be in pro forma
compliance with the Credit Agreement both before and after completing the Corporate
Structure Reorganization;
(ii) after giving effect to the terms of this Amendment, no Default or Event of Default
shall exist under the Credit Agreement or any other Loan Document; and
(iii) Borrower shall comply with the requirements of Sections 4 and 5 hereof.
This Amendment shall serve as evidence of such consent. The consent contained in this Amendment
shall not be deemed to waive or amend any other provision of the Credit Agreement or the other Loan
Documents. All terms of the Credit Agreement and the other Loan Documents shall remain in full
force and effect and constitute the legal, valid, binding and enforceable obligations of Borrower
to Agent and the Lenders.
4. Closing Deliveries. Concurrently with the execution of this Amendment, Borrower
shall:
(a) cause each Guarantor of Payment to execute the attached Guarantor Acknowledgement
and Agreement; and
(b) pay all legal fees and expenses of Agent in connection with this Amendment and the
other Loan Documents.
5. Post-Closing Deliveries. On or before each of the dates specified in this Section
5, unless otherwise agreed to by Agent in writing, Borrower shall satisfy each of the items
specified in the subsections below:
(a) Concurrently with the completion of the Guarantor Liquidation, Borrower shall have
(i) executed and delivered to Agent, for the benefit of the Lenders, a Pledge Agreement, in
form and substance satisfactory to Agent and the Lenders, with respect to the Pledged
Securities of Borrower, (ii) executed and delivered to Agent, for the benefit of the
Lenders, appropriate transfer powers for each of such Pledged Securities, (iii) delivered to
Agent, for the benefit of the Lenders, such Pledged Securities, and (iv) delivered to Agent
any other documentation (including legal opinions from foreign
3
counsel) reasonably required by Agent regarding the perfection of the security interest of
Agent, for the benefit of the Lenders, in such Pledged Securities.
(b) No later than ten days after the completion of the Guarantor Liquidation, unless
otherwise agreed to by Agent in writing, Borrower shall have delivered to Agent a copy of
the recorded Articles or Certificates of Dissolution for the dissolution of both Xxxxx XX
Holdings, LLC and Sykes Global Holdings, LLC from the Delaware Secretary of State.
(c) No later than ten days after the completion of the Guarantor Merger, unless
otherwise agreed to by Agent in writing, Borrower shall have delivered to Agent a copy of
the recorded Articles or Certificate of Merger for the merger of ICT International, Inc.
with and into Sykes Acquisition, LLC from (i) the Delaware Secretary of State, and (ii) the
Florida Secretary of State.
(d) No later than five days after the Corporate Structure Reorganization Date, unless
otherwise agreed to by Agent in writing, Borrower shall deliver to Agent the following
replacement Schedules to the Credit Agreement, in each case to be in form and substance
acceptable to Agent and giving effect to the Corporate Structure Reorganization:
Schedule 1 (Guarantors of Payment), Schedule 2 (Pledged Securities) and
Schedule 6.1 (Corporate Existence; Subsidiaries; Foreign Qualification).
6. 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 Documents 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, nor will any occur immediately after the execution and delivery of this
Amendment or by the performance or observance of any provision hereof; (e) each of the
representations and warranties contained in the Loan Documents is true and correct in all material
respects as of the Second Amendment Effective Date as if made on the Second Amendment Effective
Date, except to the extent that any such representation or warranty expressly states that it
relates to an earlier date (in which case such representation or warranty is true and correct in
all material respects as of such earlier date); (f) 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 (g) this Amendment constitutes a valid and binding obligation
of Borrower in every respect, enforceable in accordance with its terms.
7. Waiver and Release. 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, 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.
4
8. References to Credit Agreement and Ratification. Each reference that is made in
the Credit Agreement or any other Related Writing to the Credit Agreement 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.
9. 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.
10. Headings. The headings, captions and arrangements used in this Amendment are for
convenience only and shall not affect the interpretation of this Amendment.
11. 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.
12. 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.
[Remainder of page intentionally left blank.]
5
JURY TRIAL WAIVER. BORROWER, AGENT AND THE LENDERS, 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, AGENT AND THE LENDERS, 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/ Xxxxx X. Xxxxxx | |||
| Name: | Xxxxx X. Xxxxxx | |||
| Title: | Exec VP & General Counsel | |||
| KEYBANK NATIONAL ASSOCIATION, as Agent and as a Lender |
||||
| By: | /s/ Xxxxxxxx X’Xxxxx | |||
| Xxxxxxxx X’Xxxxx | ||||
| Senior Vice President | ||||
| BANK OF AMERICA, N.A., as Syndication Agent and as a Lender |
||||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxx | |||
| Title: | Senior Vice President | |||
| RBS CITIZENS, NATIONAL ASSOCIATION, as Documentation Agent and as a Lender |
||||
| By: | /s/ Xxxxx Xxxx | |||
| Name: | Xxxxx Xxxx | |||
| Title: | Senior Vice President | |||
Signature Page 1 of 3 to
Second Amendment Agreement
Second Amendment Agreement
| HSBC BANK USA, NATIONAL ASSOCIATION, as a Co-Managing Agent and as a Lender |
||||
| By: | /s/ Xxxxx Xxxxxxxxx | |||
| Name: | Xxxxx Xxxxxxxxx | |||
| Title: | Vice President | |||
| TORONTO DOMINION (NEW YORK), LLC, as a Co-Managing Agent and as a Lender |
||||
| By: | /s/ Xxxxxxx Xxxxxxxxx | |||
| Name: | Xxxxxxx Xxxxxxxxx | |||
| Title: | Vice President | |||
| JPMORGAN CHASE BANK, N.A., as a Lender |
||||
| By: | /s/ Xxxx X. Xxxxx | |||
| Name: | Xxxx X. Xxxxx | |||
| Title: | Senior Vice President | |||
| U.S. BANK NATIONAL ASSOCIATION, as a Lender |
||||
| By: | /s/ Xxxxxxx XxXxxx | |||
| Name: | Xxxxxxx XxXxxx | |||
| Title: | Vice President | |||
| BRANCH BANKING & TRUST COMPANY, as a Lender |
||||
| By: | /s/ Xxxxxxx X. Xxxxx | |||
| Name: | Xxxxxxx X. Xxxxx | |||
| Title: | Senior Vice President | |||
Signature Page 2 of 3 to
Second Amendment Agreement
Second Amendment Agreement
| COMERICA BANK, as a Lender |
||||
| By: | /s/ Xxxxxx X. Xxxxxx Xx. | |||
| Name: | Xxxxxx X. Xxxxxx Xx. | |||
| Title: | Vice President | |||
| THE NORTHERN TRUST COMPANY, as a Lender |
||||
| By: | /s/ Xxxx Xxxxx | |||
| Name: | Xxxx Xxxxx | |||
| Title: | Vice President | |||
Signature Page 3 of 3 to
Second Amendment Agreement
Second Amendment Agreement
GUARANTOR ACKNOWLEDGMENT AND AGREEMENT
The undersigned consent and agree to and acknowledge the terms of the foregoing Second
Amendment Agreement dated as of July 16, 2010. The undersigned further agree that the obligations
of the undersigned pursuant to the Guaranty of Payment executed by the undersigned are hereby
ratified and 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 any kind or nature, absolute and contingent, of which the undersigned
are aware or should be 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.
| MCQUEEN INTERNATIONAL INCORPORATED | SYKES E-COMMERCE, INCORPORATED | |||||||||||
By: |
/s/ Xxxxx X. Xxxxxx | By: | /s/ Xxxxx X. Xxxxxx | |||||||||
| Name: | Xxxxx X. Xxxxxx | Name: | Xxxxx X. Xxxxxx | |||||||||
| Title: | President & Secretary | Title: | President & Secretary | |||||||||
| XXXXX XX HOLDINGS, LLC | SYKES ACQUISITION, LLC | |||||||||||
By: |
/s/ Xxxxx X. Xxxxxx | By: | /s/ Xxxxx X. Xxxxxx | |||||||||
| Name: | Xxxxx X. Xxxxxx | Name: | Xxxxx X. Xxxxxx | |||||||||
| Title: | President & Secretary | Title: | President & Secretary | |||||||||
| XXXXX ENTERPRISES – SOUTH AFRICA, INC. | SYKES GLOBAL HOLDINGS, LLC | |||||||||||
By: |
/s/ Xxxxx X. Xxxxxx | By: | /s/ Xxxxx X. Xxxxxx | |||||||||
| Name: | Xxxxx X. Xxxxxx | Name: | Xxxxx X. Xxxxxx | |||||||||
| Title: | President & Secretary | Title: | President & Secretary | |||||||||
Signature Page 1 of 2 to
Guarantor Acknowledgment and Agreement
Guarantor Acknowledgment and Agreement
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.
| SYKES REALTY, INC. | ICT INTERNATIONAL, INC. | |||||||||||||
By: |
/s/ Xxxxx X. Xxxxxx | By: | /s/ Xxxxx X. Xxxxxx | |||||||||||
| Name: | Xxxxx X. Xxxxxx | Name: | Xxxxx X. Xxxxxx | |||||||||||
| Title: | President & Secretary | Title: | President & Secretary | |||||||||||
| ICT ENTERPRISES, INC. | ICT ACCOUNTS RECEIVABLE MANAGEMENT, INC. | |||||||||||||
By: |
/s/ Xxxxx X. Xxxxxx | By: | /s/ Xxxx Xxxx Xxxxxx | |||||||||||
| Name: | Xxxxx X. Xxxxxx | Name: | Xxxx Xxxx Xxxxxx | |||||||||||
| Title: | President & Secretary | Title: | President | |||||||||||
| ICT RESOURCES, INC. | ||||||||||||||
By: |
/s/ Xxxxx X. Xxxxxx | |||||||||||||
| Name: | Xxxxx X. Xxxxxx | |||||||||||||
| Title: | President & Secretary | |||||||||||||
Signature Page 2 of 2 to
Guarantor Acknowledgment and Agreement
Guarantor Acknowledgment and Agreement
