EXHIBIT 10.5
AMENDMENT NO. 2 TO AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDMENT NO. 2 TO AMENDED AND RESTATED CREDIT AGREEMENT (this
"Agreement"), dated as of December 21, 2001, is by and among XXXXX ENTERPRISES,
INCORPORATED, a Florida corporation (the "Borrower"), certain Subsidiaries of
the Borrower, as Guarantors (the "Guarantors"), the various lending institutions
parties hereto and BANK OF AMERICA, N.A., a national banking association, as
agent for the Lenders (in such capacity, the "Agent").
W I T N E S S E T H:
WHEREAS, the Borrower, the Guarantors, the various lending institutions
parties hereto and the Agent are parties to that certain Amended and Restated
Credit Agreement dated as of May 2, 2000 (as amended by that certain Amendment
No. 1 to Amended and Restated Credit Agreement dated as of June 22, 2001, the
"Existing Credit Agreement"); and
WHEREAS, the Borrower, the Guarantors, the Required Lenders (as defined
in the Existing Credit Agreement) and the Agent have agreed to amend the
Existing Credit Agreement as set forth herein.
NOW, THEREFORE, in consideration of the agreements herein contained,
the parties hereby agree as follows:
I
DEFINITIONS
SECTION 1.1. Certain Definitions. Unless otherwise defined herein or
the context otherwise requires, terms used in this Agreement, including its
preamble and recitals, have the following meanings (such meanings to be equally
applicable to the singular and plural forms thereof):
"Amended Credit Agreement" means the Existing Credit Agreement as
amended hereby.
"Amendment No. 2 Effective Date" is defined in Section 5.1.
SECTION 1.2. Other Definitions. Unless otherwise defined herein or the
context otherwise requires, terms used in this Agreement, including its preamble
and recitals, have the meanings provided in the Amended Credit Agreement.
II
AMENDMENTS TO EXISTING CREDIT AGREEMENT
Effective as of the Amendment No. 2 Effective Date, the Existing Credit
Agreement is hereby amended in accordance with Article II. Except as so amended,
the Existing Credit Agreement, the Notes and the other Credit Documents shall
continue in full force and effect.
SECTION 2.1. Amendments to Section 1.
(a) Section 1.1 of the Existing Credit Agreement is
hereby amended by inserting, in the alphabetically appropriate place,
the following definitions:
"Amendment No. 2" means Amendment No. 2 to Credit
Agreement, dated as of December 21, 2001, among the Borrower,
the Guarantors, the Required Lenders and the Agent, amending
this Credit Agreement as then in effect.
"Amendment No. 2 Effective Date" means December 21,
2001 provided that Amendment No. 2 shall have become effective
in accordance with its terms.
(b) Section 1.1 of the Existing Credit Agreement is
hereby amended by amending in its entirety the definition for "Pledge
Agreements" to read as follows:
"Pledge Agreements" means (a) that certain pledge
agreement dated as of the Closing Date executed by the
Borrower in favor of the Agent with respect to 66% of the
Voting Stock owned by the Borrower in McQueen International
Limited, a Scottish corporation, (b) that certain pledge
agreement dated as of the Amendment No. 2 Effective Date
executed by the Borrower in favor of the Agent with respect to
100% of the membership interests in Sykes Global Holdings,
LLC, a Delaware limited liability company and Xxxxx XX
Holdings, LLC, a Delaware limited liability company, held by
the Borrower, and (c) any additional pledge agreements entered
into in accordance with the provisions of Section 7.11, in
each case as amended and modified, to secure on a pari passu
basis the obligations owing under this Credit Agreement and
the Indebtedness permitted by Section 8.1(g).
SECTION 2.2. Amendment to Section 6.12. The first sentence of Section
6.12 of the Existing Credit Agreement is hereby amended in its entirety to read
as follows:
Set forth on Schedule 6.12 is a complete and accurate list as
of the Amendment No. 2 Effective Date of all Subsidiaries of
the Borrower and of the share ownership of the Borrower and
each such Subsidiary.
SECTION 2.3. Amendment to Section 7.11. Section 7.11 of the Existing
Credit Agreement is hereby amended by replacing each reference to "66%" therein
with a reference to "65%".
-2-
SECTION 2.4. Addition of Section 8.10 is hereby added to the Existing
Credit Agreement to read as follows:
SECTION 8.10. SYKES INVESTMENTS C.V.
Without the prior consent of the Required Lenders, permit
Xxxxx XX Holdings, LLC or Sykes Global Holdings, LLC to transfer any of
their respective partnership or other ownership interests in Sykes
Investments C.V., a Dutch limited partnership.
SECTION 2.5. Amendment to Schedule 6.12. Schedule 6.12 to the Existing
Credit Agreement is hereby deleted in its entirety and new Schedule 6.12
attached hereto is substituted therefor.
III
CONSENT AND WAIVER RELATING TO REORGANIZATION
SECTION 3.1. Consent and Waiver. In connection with the pending
reorganization of the Borrower's corporate organizational structure, the
Required Lenders hereby (a) acknowledge their consent to the specific
intercompany transactions outlined on Annex A hereto, to the extent such
transactions are described on such Annex A, (b) waive any Default or Event of
Default that may arise under Section 8 of the Amended Credit Agreement solely as
a result of the consummation of the intercompany transactions outlined on Annex
A hereto, to the extent such transactions are described on such Annex A, (c)
acknowledge and agree that the intercompany payments and distributions made as a
result of the reorganization as described on such Annex A, shall not be regarded
as Restricted Payments for purposes of Section 8.7 of the Amended Credit
Agreement, and (d) waive the requirement pursuant to Section 7.11 of the
Existing Credit Agreement that the Borrower or any Subsidiary of the Borrower
cause to be pledged the Voting Stock of Sykes Investments C.V. a Dutch limited
partnership. The waivers set forth in this Section 3.1 are one-time waiver and
shall not be construed to be (i) waivers as to future compliance with Sections 7
or 8 of the Amended Credit Agreement, (ii) waivers of any other Default or Event
of Default that may exist or (iii) an amendment of or modification to the
Existing Credit Agreement. The Agent and the Lenders hereby reserve all of their
rights, powers and remedies under the Amended Credit Agreement, after giving
effect to this Agreement, and applicable law.
IV
RELEASE OF PLEDGE RELATING TO SYKES CANADA
SECTION 4.1. Release of Pledge Agreement and Related Collateral. The
Required Lenders hereby authorize and instruct Bank of America, as collateral
agent (in such capacity, the "Collateral Agent"), to release, effective as of
the Amendment No. 2 Effective Date, (a) that certain Pledge Agreement dated as
of May 2, 2000 given by the Borrower in favor of the Collateral Agent with
respect to the Borrower's pledge of 66% of the capital stock of Sykes Canada
Corporation (formerly Oracle Service Networks Corporation) and (b) the capital
stock and related collateral pledged pursuant to such Pledge Agreement.
-3-
V
CONDITIONS TO EFFECTIVENESS
SECTION 5.1. Amendment No. 2 Effective Date. This Agreement shall be
and become effective as of the date hereof (the "Amendment No. 2 Effective
Date") when all of the conditions set forth in this Section 5.1 shall have been
satisfied, and thereafter, this Agreement No. 2 shall be known, and may be
referred to, as "Amendment No. 2."
SECTION 5.1.1. Execution of Counterparts. The Agent shall have
received (including by telecopy) counterparts of (a) this Agreement
which shall have been duly executed on behalf of the Borrower, the
Guarantors, the Agent and the Required Lenders, (b) a Guarantor Joinder
Agreement dated as of the date hereof which shall have been duly
executed by Sykes Global Holdings L.L.C. ("USLLC") and Xxxxx XX
Holdings, LLC ("LPLLC) and (c) a Pledge Agreement dated as of the date
hereof which shall have been duly executed by the Borrower in
connection with the pledge of 100% of the membership interests USLLC
and LPLLC.
SECTION 5.1.2. Legal Details, Etc. All documents executed or
submitted pursuant hereto shall be reasonably satisfactory in form and
substance to the Agent and its counsel prior to or by the time of
closing. Prior to or by the time of closing, the Agent and its counsel
shall have received all information, legal opinions and other
documents, and such counterpart originals or such certified or other
copies of such originals, as the Agent or its counsel may reasonably
request, and all legal matters incident to the transactions
contemplated by this Agreement shall be reasonably satisfactory to the
Agent and its counsel.
SECTION 5.1.3. Payment of Amendment Fee. The Borrower shall
have paid to the Agent a fee in connection with this Agreement in an
amount equal to 0.075% multiplied by the aggregate Revolving
Commitments of the Consenting Lenders (as defined below) such fee being
for the account of each such Lender pro rata according to such Lender's
Revolving Commitment; provided, however, that such fee shall be payable
only to those Lenders (the "Consenting Lenders") that shall have
returned (including via telecopy) executed signature pages to this
Agreement on or before Wednesday, December 19, 2001, as directed by the
Agent.
VI
MISCELLANEOUS
SECTION 6.1. Representations and Warranties. The Borrower hereby
represents and warrants to the Agent and the Lenders that, after giving effect
to this Agreement, (a) no Default or Event of Default exists under the Amended
Credit Agreement or any of the other Credit Documents and (b) the
representations and warranties set forth in Section 6 of the Amended Credit
Agreement are, subject to the limitations set forth therein, true and correct in
all material respects as of the date hereof (except for those which expressly
relate to an earlier date).
-4-
SECTION 6.2. Cross-References. References in this Agreement to any
Section are, unless otherwise specified, to such Section of this Agreement.
SECTION 6.3. Instrument Pursuant to Existing Credit Agreement. This
Agreement 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 6.4. Credit Documents. The Borrower and the Guarantors hereby
confirm and agree that the Credit Documents are, and shall continue to be, in
full force and effect, and hereby ratify and confirm in all respects their
obligations thereunder, except that, upon the effectiveness of, and on and after
the date of this Agreement, all references in each Credit Document to the
"Credit Agreement", "thereunder", "thereof" or words of like import referring to
the Existing Credit Agreement shall mean the Amended Credit Agreement.
SECTION 6.5. Counterparts, Effectiveness, Etc. This Agreement 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. Delivery of executed counterparts of this Agreement by
telecopy shall be effective as an original and shall constitute a representation
that an original shall be delivered.
SECTION 6.6. Governing Law; Entire Agreement. THIS AGREEMENT SHALL BE
DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE
STATE OF NORTH CAROLINA WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW PRINCIPLES
THEREOF.
SECTION 6.7. Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
[the remainder of this page intentionally left blank]
-5-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective duly authorized officers as of the day and year
first above written.
BORROWER: XXXXX ENTERPRISES, INCORPORATED
By: /S/ W. Xxxxxxx Xxxxxxx
--------------------------------------------------
Name: W. Xxxxxxx Xxxxxxx
Title: Sr. Vice President and Chief Financial Officer
GUARANTORS: SYKES REALTY, INC.
By:/S/ W. Xxxxxxx Xxxxxxx
---------------------------------------------------
Name: W. Xxxxxxx Xxxxxxx
Title: Vice President and Chief Financial Officer
SYKES E-COMMERCE INCORPORATED
By:/S/ W. Xxxxxxx Xxxxxxx
------------------------------------------------------
Name: W. Xxxxxxx Xxxxxxx
Title: Secretary and Treasurer
SYKES GLOBAL HOLDINGS L.L.C.
By:/S/ W. Xxxxxxx Xxxxxxx
---------------------------------------------------
Name: W. Xxxxxxx Xxxxxxx
Title: Sr. Vice President and Chief Financial Officer
XXXXX XX HOLDINGS L.L.C.
By:/S/ W. Xxxxxxx Xxxxxxx
---------------------------------------------------
Name: W. Xxxxxxx Xxxxxxx
Title: Sr. Vice President and Chief Financial Officer
Amendment No. 2 to
Amended and Restated Credit Agreement
(December 2001)
LENDERS: BANK OF AMERICA, N.A., individually in its capacity as
a Lender and in its capacity as Agent
By:/S/ Xxxx X. Xxxxxxxx
---------------------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Managing Director
SUNTRUST BANK
By:/S/ Xxxxx X. Xxxxxxxx
---------------------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
FIRST UNION NATIONAL BANK
By:/S/ Xxxxx X. Xxxxxxxx
------------------------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Managing Director
BANK ONE, NA (formerly known as The First National Bank
of Chicago)
By:/S/ Xxxxxx X. Xxxxxxxx
---------------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Associate
FLEET NATIONAL BANK
By:/S/ Xxxxxx Xxxxxx
------------------------------------------------------
Name: Xxxxxx Xxxxxx
Title: Senior Vice President
Amendment No. 2 to
Amended and Restated Credit Agreement
(December 2001)
SOUTHTRUST BANK, formerly known as SouthTrust Bank,
National Association
By:/S/ Xxxxxx Xxxxxxxxxx
---------------------------------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: Vice President
BNP PARISBAS
By:/S/ Xxxxxx Xxxxxx
---------------------------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
By:/S/ Xxxxx Xxxxxx
---------------------------------------------------
Name: Xxxxx Xxxxxx
Title: Associate
Amendment No. 2 to
Amended and Restated Credit Agreement
(December 2001)
SCHEDULE 6.12
SCHEDULE OF SUBSIDIARIES
COMPANY NAME JURISDICTION OWNERSHIP % OWNED
Xxxxx Enterprises, Incorporated Florida Publicly Held %
1. Xxxxx Realty, Inc. Florida Xxxxx Enterprises, Incorporated 100%
2. Xxxxx Enterprises Delaware, Inc. Delaware Xxxxx Enterprises, Incorporated 100%
3. Xxxxx Enterprises - South Africa, Inc. Florida Xxxxx Enterprises, Incorporated 100%
4. Xxxxx Enterprises of Canada, Inc. Canada Xxxxx Enterprises, Incorporated 100%
5. Sykes Financial Services, Inc. Maryland Xxxxx Enterprises, Incorporated 100%
6. SEI Technical Services, Ltd. London Xxxxx Enterprises, Incorporated 50%
Xxxx Xxxxx 50%
7. McQueen International Incorporated California Xxxxx Enterprises, Incorporated 100%
X. Xxxxx E-Commerce, Incorporated Delaware McQueen International 100%
Incorporated
8. Sykes Latin America, X.X. Xxxxx Rica Xxxxx Enterprises, Incorporated 100%
9. Xxxxx Enterprises Incorporated, S.L. Spain Xxxxx Enterprises, Incorporated 100%
10. McQueen International Limited Scotland Xxxxx Enterprises, Incorporated 100%
X. XxXxxxx Europe Limited Scotland McQueen International Limited 100%
1) Sykes Netherlands B.V. Netherlands McQueen Europe Limited 100%
a) McQueen Skandinavian AB Sweden Sykes Netherlands B.V. 100%
b) McQueen International B.V. Netherlands Sykes Netherlands B.V. 100%
c) Sykes Asia Inc. Philippines Sykes Netherlands B.V. 100%
d) Sykes France S.A. France Xxxxx Netherlands B.V. 100%
2) Sykes Europe Limited Scotland McQueen International Limited 100%
a) McQueen Graphics Limited Scotland Sykes Europe Limited 100%
b) Printsoft Limited Scotland Sykes Europe Limited 100%
c) McQueen Direct Limited Scotland Sykes Europe Limited 100%
d) McQueen ESOT Trustees Limited Scotland Sykes Europe Limited 100%
e) McQueen Integrated Manufacturing Services Scotland Sykes Europe Limited 100%
Limited
f) LINK Network Limited Scotland Sykes Europe Limited 100%
11. Sykes Holdings of Belgium B.V.B.A. Belgium Xxxxx Enterprises, Incorporated 99%
Xxxxx Enterprises Incorporated BV 1%
X. Xxxxx Belgium N.V. Belgium Sykes Holdings of Belgium 100%
B.V.B.A.
12. Sykes Investments CV Netherlands Xxxxx XX Holdings, LLC 99.99%
Sykes Global Holdings, LLC 0.01%
X. Xxxxx Enterprises Incorporated Holdings B.V. Netherlands Sykes Investments CV 100%
1) Sykes Datasvar Support AB Sweden Xxxxx Enterprises Incorporated 100%
Holdings B.V.
a) Twin Point AB Sweden Sykes Datasvar Support AB 100%
2) Xxxxx International Holdings BV Netherlands Xxxxx Enterprises Incorporated 100%
Holdings B.V.
a) Sykes Canada, Inc. Canada Xxxxx International Holdings BV 100%
1) 000 Xxxx Xxxx (Xxxxxx) Xxx. Xxxxxx Xxxxx Xxxxxx, Inc. 100%
i) Station Park Fitness Club Inc. Canada 000 Xxxx Xxxx (Xxxxxx) Inc. 100%
2) Clinidata Incorporated Canada Sykes Canada, Inc. 100%
3) Xxxxx Enterprises GmbH Germany Sykes Canada, Inc. 100%
i) Xxxxx Enterprises Hamburg Hannover Germany Xxxxx Enterprises GmbH 90%
GmbH & Co. KG
Xxxxx Enterprises Verwaltungs 10%
und Management GmbH
ii) Xxxxx Enterprises Verwaltungs und Germany Xxxxx Enterprises GmbH 100%
Management GmbH
iii) Tas Xxxx Xxxxxxx Telemarketing Und Germany Xxxxx Enterprises GmbH 90%
Xxxxxxxxxxxxxxxxxxxxxx XxxX & Xx. XX Xxxxx Xxxxxxxxxxxxxxxxxxxxx mbH 10%
iv) Sykes Verwaltungesellschaft mbH Germany Xxxxx Enterprises GmbH 100%
v) Xxxxx Enterprises Support Services Germany Xxxxx Enterprises GmbH 49%
B.V. & Co. KG Xxxxx Enterprises Incorporated BV 51%
vi) Xxxxx Enterprises Management GmbH Germany Xxxxx Enterprises GmbH 100%
vii) Xxxxx Enterprises Verwaltungs und Germany Xxxxx Enterprises GmbH 100%
Beteiligungsgellschaft mbH
viii) Xxxxx Enterprises Bochum GmbH & Co. Germany Xxxxx Enterprises GmbH 90%
KG Xxxxx Enterprises Management GmbH 10%
- Xxxxx Enterprises Wilhemslaven Germany Xxxxx Enterprises Bochum GmbH & 99.92%
GmbH & Co. KG Co. KG
Xxxxx Enterprises Verwaltungs 0.08%
und Beteiligungsgellschaft mbH
- TST Tele Service Team, GmbH Germany Xxxxx Enterprises Bochum GmbH & 64%
Co. KG
Iris Gordelik 26%
Xxxxxxx Xxxxxxxx 10%
- T.O.P. Teleshopping, GmbH Germany Xxxxx Enterprises Bochum GmbH & 67%
Co. KG
Xxxx-Xxxxxxx Xxxx 33%
3) Xxxxx Enterprises Incorporated BV Netherlands Xxxxx Enterprises Incorporated 100%
Holdings BV
a) Xxxxx Enterprises Istanbul Limited Sirket Turkey Xxxxx Enterprises Incorporated BV 100%
b) Sykes Information Technology China (Shanghai) China Xxxxx Enterprises Incorporated BV 100%
Co. Ltd.
c) Xxxxx Enterprises Italy S.r.L Italy Xxxxx Enterprises Incorporated BV 100%
d) Xxxxx Enterprises. Kft. Budapest Hungary Xxxxx Enterprises Incorporated BV 100%
e) Sykes Central Europe Kft Hungary Xxxxx Enterprises Incorporated BV 99.8%
Xx. Xxxxxx Xxxxxx 0.2%
f) Sykes Finland Oyin Finland Xxxxx Enterprises Incorporated BV 100%
13. Sykes Global Holdings, LLC Delaware Xxxxx Enterprises, Incorporated 100%
14. Xxxxx XX Holdings, LLC Delaware Xxxxx Enterprises, Incorporated 100%
ANNEX A
Description of Borrower's Reorganization
Please see below a description of the proposed planning for Xxxxx Enterprises,
Incorporated (hereinafter referred to as "Sykes" or "the Company").
The purpose of this planning is to improve the Company's treasury position by
allowing it to efficiently transfer funds amongst its domestic and foreign group
members in accord with its business objectives.
In general, the planning contemplates a contribution of various foreign
subsidiaries to a newly formed Dutch limited partnership, (a "Commanditaire
Vennootschap" or "CV"). Prior to their contribution, the Company has held these
foreign subsidiaries directly. The CV will thereafter act as a European holding
company for many of Sykes' foreign subsidiaries.
The planning also contemplates a transaction whereby Sykes' Canadian subsidiary
will purchase Sykes' Germany subsidiaries.
The Company will effect the planning through a series of steps. The significant
details of these steps are set out below. Although the transactions and amounts
included below represent Sykes' current plan, the actual transactions and
amounts may be slightly different.
1. Sykes will form two new subsidiaries:
- Sykes Canada Company, a Canadian unlimited liability
corporation (hereinafter referred to as "SCC ULC")
and
- Xxxxx International Holdings BV, a Dutch corporation
(hereinafter referred to as "NBV");
Sykes will fund these entities with the minimum capital
required;
2. Sykes will contribute the shares of SCC ULC to the capital of
Sykes Canada Corporation, ("SCC"), a wholly owned Canadian
subsidiary of Sykes;
3. Sykes will contribute the shares of SCC, NBV and the shares of
its wholly owned Swedish subsidiary, Datasvar, to its
previously-existing Dutch subsidiary, Xxxxx Enterprises
Holdings, BV (hereinafter referred to as "HBV");
4. HBV will contribute the shares of SCC to NBV;
5. Sykes will form two new wholly-owned US subsidiary, Sykes
Global Holdings, LLC (referred to herein as "US LLC") and
Xxxxx XX Holding, LLC (referred to herein as "LPLLC");
6. Sykes, through US LLC and LPLLC will create a new Dutch
entity, Sykes Investments, CV (hereinafter referred to as
"CV"); LPLLC will act as a limited partner of CV holding in
excess of 99.99%, and US LLC will act as a general partner,
holding less than 0.01%;
7. Sykes will contribute the shares of Xxxxx Enterprises GmbH,
its wholly owned German subsidiary (hereinafter referred to as
SE_GmbH), and the shares of HBV to CV.
8. SCC and SCC ULC will amalgamate with the resulting Canadian
entity taking on unlimited liability form (the surviving
entity will hereinafter be referred to as "CanSub ULC");
9. CV will sell approximately $10 million of shares of SE_GmbH to
NBV in exchange for a note payable issued by NBV (hereinafter
referred to as the "NBV Note");
10. CV will sell its remaining shares of SE_GmbH to CanSub ULC in
exchange for an approximately $40 million note payable issued
by CanSub ULC (The "CanSub Note") and for additional shares of
CanSub ULC;
11. NBV will contribute the SE_GmbH shares it recently purchased
(as described above) to the capital of CanSub ULC;
12. CV will sell the CanSub Note to HBV in exchange for an
approximately $40 million note payable issued by HBV;
13. CanSub ULC will distribute approximately $13 million of cash
to NBV as a distribution of capital;
14. NBV will distribute approximately $13 million of cash to CV in
full satisfaction of the NBV Note; and
15. CV will distribute approximately $13 million of cash to Xxxxx
as a partnership distribution.
