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EXHIBIT 10.34
CREDIT AGREEMENT
THIS CREDIT AGREEMENT dated as of February 27, 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;
"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;
"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;
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"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 and McQueen,
"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;
"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;
"Letter of Credit Applications" shall have the meaning given
to such term in Section 2.13 hereof;
"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;
"McQueen" means McQueen International Limited.
"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;
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"Swedish Subsidiary" means Datasvar Support AB, Stockholm,
Sweden;
"Syndicated Credit Agreement" means that certain Credit
Agreement, dated as of February 27, 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 27, 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) the German Subsidiary in Deutsche
Marks (the "Deutsche Marks Advances") in an aggregate amount up to 2,500,000
Deutsche Marks, (e) the McQueen in British Pound Sterling (the "Pound Sterling
Advances") in an aggregate amount up to 5,000,000 British Pound Sterling, (f)
McQueen in Punts (the "Punts Advances") in an aggregate amount up to 800,000
Punts and (g) McQueen in French Francs (the "French Francs Advances") in an
aggregate amount up to 20,000,000 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
February 27, 1998 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
February 27, 1998 executed by the Netherlands Subsidiaries in favor of the Bank
in the original principal amount of up to 5,000,000 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 February 27, 1998 executed by the Belgian Subsidiary in favor of the Bank
in the original principal amount of up to 5,000,000 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 February 27, 1998 executed by the German Subsidiary in favor of the Bank
in the original principal amount of up to 5,000,000 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 February 27, 1998 executed by McQueen in favor of the Bank in the original
principal amount of up to 5,000,000 Pounds Sterling (the "Pound Sterling Note"),
the terms of which are incorporated herein by reference.
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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
February 27, 1998 executed by McQueen in favor of the Bank in the original
principal amount of up to 800,000 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 February 27, 1998 executed by McQueen in favor of the Bank in the original
principal amount of up to 20,000,000 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.
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.
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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 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 be
payable quarterly in arrears. 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 thereof by any governmental authority, central bank or
comparable agency charged with the interpretation, administration
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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.
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.
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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 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.
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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
(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
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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 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:
10
(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 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.
11
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 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.
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
By
--------------------------------------------
Xxxxx X. Xxxxxxx
Senior Vice President-Finance, Treasurer and
Chief Financial Officer
NATIONSBANK, N.A.
By:
------------------------------------------
Xxxxxxx X. Xxxxxxxx
Senior Vice President
12
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT dated as of October ___, 1998,
between Xxxxx Enterprises, Incorporated (the "Borrower") and its subsidiaries
listed on the signature page and NationsBank, N.A. (the "Bank").
RECITALS
The Borrower and the Bank have entered into a Credit Agreement dated as
of February 27, 1998 (the "Agreement") pursuant to which the Bank extended a
credit facility in the 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 (the
"Loan").
The obligation of the Borrower under the Credit Agreement is evidenced
by a note in the amount of $15,000,000 executed by Xxxxx Enterprises,
Incorporated in favor of Bank and the Foreign Currency Notes dated as of
February 27, 1998 executed by the Borrower's subsidiaries in favor of Bank.
The Borrower and the Bank wish to amend certain terms of the Agreement
and the Foreign Currency Notes as herein provided.
NOW THEREFORE, in consideration of the mutual agreements contained
herein and other good and valuable consideration, receipt of which is hereby
acknowledged, the parties agree as follows:
Section 1. Definitions. Unless otherwise defined herein, terms
defined in the Agreement shall have the same meanings when used herein.
Section 2. Amendments. Effective as provided in Section 3 hereof and
subject to the provisions of Section 3 hereof, the Agreement and the Foreign
Currency Notes are hereby amended as follows:
A new Section 2.10 is added to the Agreement as follows:
2.10 (a) If, as a result of the implementation of the European
economic and monetary union ("EMU"), (i) any currency available for
borrowing under this Credit Agreement (a "national currency") ceases to
be lawful currency of the state issuing the same and is replaced by a
European single or common currency (the "Euro") or (ii) any national
currency and the Euro are at the same time both recognized by the
central bank or comparable governmental authority of the state issuing
such currency as lawful currency of such state, then any amount payable
hereunder by any party hereto in such national currency (including,
without limitation, any Advance to be made under this Credit Agreement)
shall instead be payable in the Euro and the amount so payable shall be
determined by redenominating or converting such amount into the Euro at
the exchange rate officially fixed by the European Central Bank for the
purpose of implementing the EMU, provided that to the extent any EMU
legislation provides than an amount denominated either in the Euro or
in the applicable national currency can be paid either in Euros or in
the applicable national currency, each party to this Credit Agreement
shall be entitled to pay or repay such amount in Euros or in the
applicable national currency. Prior to the occurrence of the event or
events described in clause (i) or (ii) of the preceding sentence, each
amount payable hereunder in any such national currency will, except as
otherwise provided herein, continue to be payable only in that national
currency.
(b) Borrower shall from time to time, at the request of the Bank,
pay to the Bank for the account of the Bank the amount of any cost or
increased cost incurred by, or of any reduction in the amount payable
to or in the effective return on its capital to, or of interest, or
other return foregone by, the Bank or any holding company of the Bank
as a result of the introduction of, changeover to or operation of the
Euro in any applicable state.
(c) In addition, this Credit Agreement and the Foreign Currency
Notes (including, without limitation, the definition of Adjusted LIBOR
Rate) will be amended to the extent determined by the Bank (acting
reasonably and in consultation with the Borrower) to be necessary to
reflect such implementation of the
13
EMU and change in currency and to the Bank and the Borrower in the same
position, so far as possible, that they would have been in if such
implementation and change in currency had not occurred. Except as
provided in the foregoing provisions of this Section, no such
implementation or change in such currency nor any economic consequences
resulting therefrom shall (i) give rise to any right to terminate
prematurely, contest, cancel, rescind, alter, modify or renegotiate the
provisions of this Credit Agreement or (ii) discharge, excuse or
otherwise affect the performance of any obligations of the borrower
under this Credit Agreement, the Foreign Currency Notes or other Credit
Documents.
Section 3. Effective Date. The amendments to the Agreement and the
Foreign Currency Notes set forth in Section 2 hereof shall be effective and
binding on all the parties on and as of October 29, 1998 (the "Effective Date"),
provided that the following conditions precedent have been satisfied on such
date:
(a) The Bank shall have received one or more counterparts
of this First Amendment to Credit Agreement executed by each of the parties
hereto.
(b) All legal matters incident to this First Amendment to
Credit Agreement shall be satisfactory to counsel for the Bank.
Section 4. Representations, Etc. The Borrower represents
covenants and warrants to the Bank that (i) as of the date hereof no Event of
Default has occurred and is continuing and no status or condition exists which
with the giving of notice or the passage of time or both would constitute an
Event of Default; and (ii) the representations and warranties contained in the
Agreement an amended hereby, with each reference to "this Credit Agreement",
"hereto", "hereof", and terms of similar import taken as a reference to the
Agreement as amended hereby.
Section 5. Agreement.
(a) Except as specifically amended hereby, the Agreement
and Foreign Currency Notes shall remain unchanged and continue in full force and
effect in accordance with the provisions thereof as in existence on the date
hereof.
(b) This First Amendment to Credit Agreement (i) is
limited precisely as specified herein and does not constitute nor shall it be
deemed to constitute a modification, acceptance of waiver of any other provision
of the Agreement, the Foreign Currency Notes or any document, instruments,
certificates, notes, bonds or agreements delivered in connection therewith and
(iii) shall not prejudice or be deemed to prejudice any right(s) the Bank may
now have or may in the future have under or in connection with the Agreement,
the Foreign Currency Notes or any documents, instruments, certificates, notes,
bonds or agreements executed in connection therewith.
Section 6. Applicable Law. This First Amendment to Credit
Agreement shall be governed by and construed in accordance with the laws of the
State of North Carolina.
Section 7. Counterparts. This First Amendment to Credit
Agreement may be executed in any number of counterparts, all of which taken
together will constitute one agreement, and any of the parties hereto may
execute this First Amendment to Credit Agreement by signing any such
counterpart.
14
IN WITNESS WHEREOF, the parties hereto have caused to this First
Amendment to Credit Agreement be duly executed as of the day and year first
above written.
XXXXX ENTERPRISES, INCORPORATED NATIONSBANK, N.A.
By: By:
----------------------------- ---------------------------------
Title: Title:
-------------------------- ---------------------------------
DATASVAR SUPPORT AB,
STOCKHOLM, SWEDEN
By:
-----------------------------
Title:
--------------------------
XXXXX ENTERPRISES GmbH
By:
-----------------------------
Title:
--------------------------
XXXXX ENTERPRISES, INCORPORATED
HOLDINGS BV
By:
-----------------------------
Title:
--------------------------
XXXXX ENTERPRISES, INCORPORATED BV
By:
-----------------------------
Title:
--------------------------
MCQUEEN INTERNATIONAL LIMITED
By:
-----------------------------
Title:
--------------------------
SYKES HOLDINGS OF BELGIUM B.V.B.A.
By:
-----------------------------
Title:
--------------------------
15
AMENDMENT NO. 2 TO CREDIT AGREEMENT
THIS AMENDMENT AGREEMENT (this "Amendment No. 2"), dated as of January
18, 2000, is by and among XXXXX ENTERPRISES, INCORPORATED, a Florida corporation
(the "Borrower"), the subsidiaries of the Borrower listed on the signature pages
hereto and BANK OF AMERICA, N.A., a national banking association formerly known
as NationsBank, N.A. (the "Bank").
W I T N E S S E T H:
WHEREAS, the Borrower and the Bank are parties to that certain Credit
Agreement, dated as of February 27, 1998, as amended by a First Amendment to
Credit Agreement dated as of October 1998 (the "Existing Credit Agreement"); and
WHEREAS, the Borrower and the Bank 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:
PART I
DEFINITIONS
SUBPART 1.1. Certain Definitions. Unless otherwise defined herein or
the context otherwise requires, terms used in this Amendment No. 2, 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 Subpart 3.1.
SUBPART 1.2. Other Definitions. Unless otherwise defined herein or
the context otherwise requires, terms used in this Amendment No. 2, including
its preamble and recitals, have the meanings provided in the Amended Credit
Agreement.
PART 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 this Part II. Except as so
amended, the Existing Credit Agreement, the Notes and the other Credit Documents
shall continue in full force and effect.
SUBPART 2.1 Amendments to Section 1.01. Section 1.01 of the Existing
Credit Agreement is hereby amended by inserting, in the alphabetically
appropriate place, the following definition:
"Amendment No. 3 to Syndicated Credit Agreement" means that
certain Amendment No. 3 to Credit Agreement, dated as of January 18,
2000, among the Borrower, the guarantors party thereto, the lenders
party thereto and the Bank, as Agent, amending the Syndicated Credit
Agreement as then in effect.
SUBPART 2.2 Amendment to Section 4.01. Section 4.01 is amended by
replacing the first sentence thereof with the following:
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 existing after giving effect to Amendment No. 3 to
Syndicated Credit Agreement and any subsequent amendment to the
Syndicated Credit Agreement which
16
the Bank, acting in its capacity as the lender hereunder, has approved
in a writing referring to this Credit Agreement (the "Incorporated
Covenants"), are hereby incorporated by reference and shall be binding
on the Borrower as if set forth fully herein.
PART III
CONDITIONS TO EFFECTIVENESS
SUBPART 3.1. Amendment No. 2 Effective Date. This Amendment shall be
and become effective as of January 18, 2000 (the "Amendment No. 2 Effective
Date") when all of the conditions set forth in this Subpart 3.1 shall have been
satisfied, and thereafter, this Amendment No. 2 shall be known, and may be
referred to, as "Amendment No. 2."
SUBPART 3.1.1. Execution of Counterparts. The Bank shall have
received (including by telecopy) counterparts of this Amendment No. 2
which shall have been duly executed on behalf of the Borrower, the
subsidiaries of the Borrower listed on the signature pages hereto and
the Bank.
SUBPART 3.1.2. Legal Details, Etc. All documents executed or
submitted pursuant hereto shall be reasonably satisfactory in form and
substance to the Bank and its counsel prior to or by the time of
closing. Prior to or by the time of closing, the Bank and its counsel
shall have received all information, and such counterpart originals or
such certified or other copies of such originals, as the Bank or its
counsel may reasonably request, and all legal matters incident to the
transactions contemplated by this Amendment No. 2 shall be reasonably
satisfactory to the Bank and its counsel.
PART IV
MISCELLANEOUS
SUBPART 4.1 Cross-References. References in this Amendment No. 2 to
any Part or Subpart are, unless otherwise specified, to such Part or Subpart of
this Amendment No. 2.
SUBPART 4.2 Instrument Pursuant to Existing Credit Agreement. This
Amendment No. 2 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.
SUBPART 4.3 Credit Documents. The Borrower and the subsidiaries of the
Borrower listed on the signature pages hereto hereby confirm and agree that the
Credit Documents, including without limitation the Guaranty Agreements and the
Notes, 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 Amendment No. 2,
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.
SUBPART 4.4 Counterparts, Effectiveness, Etc. This Amendment No. 2
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.
SUBPART 4.5 Governing Law; Entire Agreement. THIS AMENDMENT NO. 2
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.
SUBPART 4.6 Successors and Assigns. This Amendment No. 2 shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
17
SUBPART 4.7 Representations and Warranties. The Borrower represents and
warrants to the Bank that no Default or Event of Default has occurred and
remains uncured under the Amended Credit Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 2
to be executed by their respective duly authorized officers as of the day and
year first above written.
BORROWER: XXXXX ENTERPRISES, INCORPORATED
By
-------------------------------------
Title
----------------------------------
SUBSIDIARIES OF THE
BORROWER: MCQUEEN INTERNATIONAL LIMITED
By
-------------------------------------
Title
----------------------------------
SHPS, INC.
By
-------------------------------------
Title
----------------------------------
DATASVAR SUPPORT AB,
STOCKHOLM SWEDEN
By
-------------------------------------
Title
----------------------------------
XXXXX ENTERPRISES GmbH
By
-------------------------------------
Title
----------------------------------
18
XXXXX ENTERPRISES INCORPORATED
HOLDINGS BV
By
--------------------------------------
Title
----------------------------------
XXXXX ENTERPRISES INCORPORATED BV
By
-------------------------------------
Title
----------------------------------
SYKES HOLDINGS OF BELGIUM B.V.B.A.
By
-------------------------------------
Title
----------------------------------
BANK: BANK OF AMERICA, N.A., formerly known
as NationsBank, N.A.
By
-------------------------------------
Title
----------------------------------
19
AMENDMENT NO. 3 TO CREDIT AGREEMENT
THIS AMENDMENT AGREEMENT (this "Amendment No. 3"), dated as of May __,
2000, is by and among XXXXX ENTERPRISES, INCORPORATED, a Florida corporation
(the "Borrower"), the subsidiaries of the Borrower listed on the signature pages
hereto and BANK OF AMERICA, N.A., a national banking association formerly known
as NationsBank, N.A. (the "Bank").
W I T N E S S E T H:
WHEREAS, the Borrower and the Bank are parties to that certain Credit
Agreement, dated as of February 27, 1998, as amended by a First Amendment to
Credit Agreement dated as of October 1998 and Amendment No. 2 to Credit
Agreement dated as of January 18, 2000 (the "Existing Credit Agreement");
WHEREAS, the Foreign Subsidiary Borrowers have executed the Foreign
Currency Notes pursuant to the Existing Credit Agreement;
WHEREAS, McQueen has executed that certain Guaranty Agreement dated as
of February 27, 1998 in favor of the Bank;
WHEREAS, SHPS, Inc. ("SHPS") has executed that certain Guaranty
Agreement dated as of February 28, 2000 in favor of the Bank; and
WHEREAS, the Borrower and the Bank have agreed to amend the Existing
Credit Agreement as set forth herein and the Foreign Subsidiary Borrowers and
SHPS desire to acknowledge and agree to such amendment.
NOW, THEREFORE, in consideration of the agreements herein contained,
the parties hereby agree as follows:
PART I
DEFINITIONS
SUBPART 1.1. Certain Definitions. Unless otherwise defined herein or
the context otherwise requires, terms used in this Amendment No. 3, 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. 3 Effective Date" is defined in Subpart 3.1.
SUBPART 1.2. Other Definitions. Unless otherwise defined herein or
the context otherwise requires, terms used in this Amendment No. 3, including
its preamble and recitals, have the meanings provided in the Amended Credit
Agreement.
PART II
AMENDMENTS TO EXISTING CREDIT AGREEMENT
Effective as of the Amendment No. 3 Effective Date, the Existing Credit
Agreement is hereby amended in accordance with this Part II. Except as so
amended, the Existing Credit Agreement, the Notes and the other Credit Documents
shall continue in full force and effect.
SUBPART 2.1 Amendments to Section 1.01. Section 1.01 of the Existing
Credit Agreement is hereby amended as follows:
(a) The following new definition is added in the
alphabetically appropriate place:
20
"Amendment No. 3" means Amendment No. 3 to Credit Agreement
dated as of May __, 2000 among the Borrower, the subsidiaries of the
Borrower party thereto and the Bank, amending this Credit Agreement as
then in effect.
(b) The definition of "Amendment No. 3 to Syndicated
Credit Agreement" is deleted.
(c) The following definitions are replaced in their
entirety to read as follows:
"Pledgors" means the Persons executing Pledge Agreements
pursuant to Section 4.02;
"Syndicated Credit Agreement" means that certain Amended and
Restated Credit Agreement dated as of May 2, 2000 among the Borrower,
certain subsidiaries of the Borrower, as Guarantors, the lenders
parties thereto and the Bank, as Agent for such lenders, together with
all amendments and modifications thereto and replacements therefor;
"Termination Date" means February 28, 2002.
SUBPART 2.2 Amendment to Section 3.05. Section 3.05 of the Existing
Credit Agreement is hereby amended by replacing the first sentence thereof with
the following:
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 on the date of Amendment No.
3 and after giving effect to any amendment or modification to the
Syndicated Credit Agreement which the Bank, acting in its capacity as
the lender hereunder, has approved in a writing referring to this
Credit Agreement (the "Incorporated Representations"), are hereby
incorporated by reference and shall be binding on the Borrower as if
set forth fully herein.
SUBPART 2.3 Amendment to Section 4.01. Section 4.01 of the Existing
Credit Agreement is hereby amended by replacing the first sentence thereof with
the following:
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 on the date of Amendment No. 3 and after giving
effect to any amendment or modification to the Syndicated Credit
Agreement which the Bank, acting in its capacity as the lender
hereunder, has approved in a writing referring to this Credit Agreement
(the "Incorporated Covenants"), are hereby incorporated by reference
and shall be binding on the Borrower as if set forth fully herein.
SUBPART 2.4 Amendment to Section 4.02. Section 4.02 of the Existing
Credit Agreement is hereby amended in its entirety to read as follows:
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 shall
deliver stock certificates and a 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) (each such Subsidiary that executes a
guaranty agreement pursuant to this Section 4.02(a) is referred to
herein as a "Subsidiary Guarantor" and each such Foreign Subsidiary
that has had 66% of its Voting Stock pledged to (or for the benefit of)
the Bank is referred to herein as a "Covered Foreign Subsidiary"); and
21
(b) deliver such supporting resolutions, incumbency
certificates, corporate formation and organizational documentation and
opinions of counsel as the Bank may reasonably request.
In addition, if all Subsidiaries of the Borrower that are not
Subsidiary Guarantors or Covered Foreign Subsidiaries (collectively,
the "Non-Covered Subsidiaries") shall, as of any date of determination
and determined on a consolidated basis, collectively account for (or
have attributed to them) during the most recently ended four fiscal
quarter period 20% or more of the Consolidated EBITDA or assets of the
Consolidated Group (the "Threshold Requirement"), then the Borrower
will promptly notify the Bank thereof and cause one or more of such
Non-Covered Subsidiaries to satisfy clauses (a) and (b) above such that
immediately after such Subsidiaries have become Guarantors hereunder
(or, in the case of Foreign Subsidiaries, have had 66% of their Voting
Stock pledged to (or for the benefit of) the Bank), the remaining
Non-Covered Subsidiaries shall not exceed the Threshold Requirement.
SUBPART 2.5 New Sections 6.12 and 6.13. New Sections 6.12 and 6.13 are
hereby added to the Existing Credit Agreement as follows:
6.12 The Bank hereby waives any Default or Event of
Default that may have existed under this Credit Agreement from the
Closing Date to the date of Amendment No. 3 solely as a result of the
Credit Parties' non-compliance with Section 8.1(e) of the Incorporated
Covenants. This is a one-time waiver and shall not be construed to be a
waiver (a) as to future compliance with Section 8.1(e) of the
Incorporated Covenants or (b) any other Default or Event of Default
that may exist hereunder or hereunder.
6.13 The Bank hereby releases McQueen from its obligations
set forth in that certain Guaranty Agreement dated as of February 27,
1998 in favor of the Agent.
PART III
CONDITIONS TO EFFECTIVENESS
SUBPART 3.1. Amendment No. 3 Effective Date. This Amendment shall be
and become effective as of the date hereof (the "Amendment No. 3 Effective
Date") when all of the conditions set forth in this Subpart 3.1 shall have been
satisfied, and thereafter, this Amendment No. 3 shall be known, and may be
referred to, as "Amendment No. 3."
SUBPART 3.1.1. Execution of Counterparts. The Bank shall have
received (including by telecopy) counterparts of this Amendment No. 3
which shall have been duly executed on behalf of the Borrower, the
subsidiaries of the Borrower listed on the signature pages hereto and
the Bank.
SUBPART 3.1.1. Subsidiary Guaranties. The Bank shall have
received (including by telecopy) counterparts of Guaranty Agreements
which shall have been duly executed on behalf of Sykes Realty, Inc. and
Sykes E-Commerce Incorporated.
SUBPART 3.1.3. Legal Details, Etc. All documents executed or
submitted pursuant hereto shall be reasonably satisfactory in form and
substance to the Bank and its counsel prior to or by the time of
closing. Prior to or by the time of closing, the Bank and its counsel
shall have received all information, and such counterpart originals or
such certified or other copies of such originals, as the Bank or its
counsel may reasonably request, and all legal matters incident to the
transactions contemplated by this Amendment No. 3 shall be reasonably
satisfactory to the Bank and its counsel.
PART IV
MISCELLANEOUS
SUBPART 4.1 Cross-References. References in this Amendment No. 3 to any
Part or Subpart are, unless otherwise specified, to such Part or Subpart of this
Amendment No. 3.
22
SUBPART 4.2 Instrument Pursuant to Existing Credit Agreement. This
Amendment No. 3 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.
SUBPART 4.3 Credit Documents. The Borrower and the subsidiaries of the
Borrower listed on the signature pages hereto hereby confirm and agree that the
Credit Documents, including without limitation the Guaranty Agreements and the
Notes, 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 Amendment No. 3,
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.
SUBPART 4.4 Counterparts, Effectiveness, Etc. This Amendment No. 3 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.
SUBPART 4.5 Governing Law; Entire Agreement. THIS AMENDMENT NO. 3 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.
SUBPART 4.6 Successors and Assigns. This Amendment No. 3 shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
SUBPART 4.7 Representations and Warranties. The Borrower represents and
warrants to the Bank that no Default or Event of Default has occurred and
remains uncured under the Amended Credit Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 3
to be executed by their respective duly authorized officers as of the day and
year first above written.
BORROWER: XXXXX ENTERPRISES, INCORPORATED
By
------------------------------------------
Title
---------------------------------------
SUBSIDIARIES OF THE
BORROWER: MCQUEEN INTERNATIONAL LIMITED
By
------------------------------------------
Title
---------------------------------------
23
SHPS, INC.
By
------------------------------------------
Title
---------------------------------------
DATASVAR SUPPORT AB,
STOCKHOLM SWEDEN
By
------------------------------------------
Title
---------------------------------------
XXXXX ENTERPRISES GmbH
By
------------------------------------------
Title
---------------------------------------
XXXXX ENTERPRISES INCORPORATED
HOLDINGS BV
By
------------------------------------------
Title
---------------------------------------
XXXXX ENTERPRISES INCORPORATED BV
By
------------------------------------------
Title
---------------------------------------
SYKES HOLDINGS OF BELGIUM B.V.B.A.
By
------------------------------------------
Title
---------------------------------------
BANK : BANK OF AMERICA, N.A., formerly known
as NationsBank, N.A.
By
------------------------------------------
Title
---------------------------------------
24
AMENDMENT NO. 4 TO CREDIT AGREEMENT
THIS AMENDMENT NO. 4 TO CREDIT AGREEMENT (this "Amendment"), dated as
of June 22, 2001, is by and among XXXXX ENTERPRISES, INCORPORATED, a Florida
corporation (the "Borrower"), the guarantors listed on the signature pages
hereto, the other subsidiaries of the Borrower listed on the signature pages
hereto and BANK OF AMERICA, N.A., a national banking association (the "Bank").
W I T N E S S E T H:
WHEREAS, the Borrower and the Bank are parties to that certain Credit
Agreement, dated as of February 27, 1998, as amended by a First Amendment to
Credit Agreement dated as of October 1998, Amendment No. 2 to Credit Agreement
dated as of January 18, 2000 and Amendment No. 3 to Credit Agreement dated as of
May 2, 2000 (the "Existing Credit Agreement");
WHEREAS, the Foreign Subsidiary Borrowers have executed the Foreign
Currency Notes pursuant to the Existing Credit Agreement;
WHEREAS, by separate guaranty agreements both dated May 2, 2000, Sykes
E-Commerce Incorporated and Sykes Realty, Inc. (collectively, the "Guarantors")
agreed to guaranty the Borrower's obligations under the Credit Agreement; and
WHEREAS, the Borrower and the Bank have agreed to amend the Existing
Credit Agreement as set forth herein and the Guarantors and the Foreign
Subsidiary Borrowers desire to acknowledge and agree to such amendment.
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 Amendment, 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. 4 Effective Date" is defined in Section 3.1.
SECTION 1.2. Other Definitions. Unless otherwise defined herein or the
context otherwise requires, terms used in this Amendment, 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. 4 Effective Date, the Existing Credit
Agreement is hereby amended in accordance with these Sections 2.1 through 2.4.
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 1.01.
(a) Section 1.01 of the Existing Credit Agreement is hereby
amended by inserting, in the alphabetically appropriate place, the
following definition:
25
"Amendment No. 4" means Amendment No. 4 to Credit
Agreement, dated as of June 22, 2001, among the Borrower,
Sykes Realty, Inc., Sykes E-Commerce Incorporated, the other
subsidiaries of the Borrower listed on the signature pages
thereto and the Bank, amending this Credit Agreement as then
in effect.
"Applicable Percentage" means for any day, the rate
per annum set forth below opposite the applicable Consolidated
Leverage Ratio then in effect, it being understood that the
Applicable Percentage for (i) Base Rate Loans shall be the
percentage set forth under the column "Base Rate Margin", (ii)
the Letter of Credit Fee shall be the percentage set forth
under the column "Eurocurrency Margin and Letter of Credit
Fee" and (iii) the Commitment Fee shall be the percentage set
forth under the column "Commitment Fee".
Pricing Consolidated Base Rate Commitment
Level Leverage Margin Letter of Credit Fee Fee
Ratio
---------------------------------------------------------------------------------------------
I > 1.75 0.50% 2.25% 0.40%
II > 1.25 but <= 1.75 0.25% 2.00% 0.375%
III > 0.75 but <= 1.25 0% 1.75% 0.35%
IV > 0.25 but <= 0.75 0% 1.50% 0.325%
V <= 0.25 0% 1.25% 0.30%
The Applicable Percentage shall be determined and adjusted
quarterly on the date five (5) Business Days after the date by
which the annual and quarterly compliance certificates and
related financial statements and information are required in
accordance with the provisions of Sections 7.1(a) and (b) and
Section 7.2(b) of the Syndicated Credit Agreement, as
appropriate (each date of a rate change as described in the
sentence hereafter referred to as a "Rate Determination
Date"); provided that (i) the current Applicable Percentages
shall be based on Pricing Level V, shall be effective on the
Amendment No. 4 Effective Date and shall be adjusted as shown
above based on the Consolidated Leverage Ratio; and (ii) in
the event an annual or quarterly compliance certificate and
the related financial statements and information are not
delivered timely by the date required by the provisions of
Sections 7.1(a) and (b) and Section 7.2(b) of the Syndicated
Credit Agreement, as appropriate, the Applicable Percentages
shall be based on Pricing Level I until such time as an
appropriate compliance certificate and the related financial
statements and information are delivered, whereupon the
applicable Pricing Level shall be adjusted based on the
information contained in such compliance certificate and
related financial statements and information. The Applicable
Percentage shall be effective from a Rate Determination Date
until the next such Rate Determination Date. The Bank shall
determine the appropriate Applicable Percentages in the
pricing matrix that is based on the Consolidated Leverage
Ratio promptly upon receipt of the quarterly or annual
compliance certificate and related financial information and
shall promptly notify the Borrower of any change thereof. Such
determinations by the Bank shall be conclusive absent manifest
error. Adjustments in the Applicable Percentages shall be
effective as to existing extensions of credit as well as new
extensions of credit made thereafter.
SECTION 2.2 Amendment to Sections 2.02 through 2.09. Sections 2.02
through 2.09 of the Existing Credit Agreement are hereby amended in their
entirety to read as follows:
2.02 The Krona Advances shall be made, shall be repaid and
shall bear interest in accordance with the terms of that certain
Amended, Restated and Substituted Promissory Note dated June 22, 2001
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"), as such
note may be amended, modified, supplemented, extended, renewed or
replaced from time to time, the terms of which are incorporated herein
by reference.
26
2.03 The Guilder Advances shall be made, shall be repaid
and shall bear interest in accordance with the terms of that certain
Amended, Restated and Substituted Promissory Note dated June 22, 2001
executed by the Netherlands Subsidiaries in favor of the Bank in the
original principal amount of up to 5,000,000 Guilder (the "Guilder
Note"), as such note may be amended, modified, supplemented, extended,
renewed or replaced from time to time, 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 Amended, Restated and Substituted Promissory Note dated June
22, 2001 executed by the Belgian Subsidiary in favor of the Bank in the
original principal amount of up to 5,000,000 Belgian Francs (the
"Belgian Francs Note"), as such note may be amended, modified,
supplemented, extended, renewed or replaced from time to time, 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 Amended, Restated and Substituted Promissory Note dated June
22, 2001 executed by the German Subsidiary in favor of the Bank in the
original principal amount of up to 5,000,000 Deutsche Marks (the
"Deutsche Marks Note"), as such note may be amended, modified,
supplemented, extended, renewed or replaced from time to time, 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 Amended, Restated and Substituted Promissory Note dated June
22, 2001 executed by McQueen in favor of the Bank in the original
principal amount of up to 5,000,000 Pounds Sterling (the "Pound
Sterling Note"), as such note may be amended, modified, supplemented,
extended, renewed or replaced from time to time, 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
Amended, Restated and Substituted Promissory Note dated June 22, 2001
executed by McQueen in favor of the Bank in the original principal
amount of up to 800,000 Punts (the "Punts Note"), as such note may be
amended, modified, supplemented, extended, renewed or replaced from
time to time, 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 Amended, Restated and Substituted Promissory Note dated June
22, 2001 executed by McQueen in favor of the Bank in the original
principal amount of up to 20,000,000 French Francs (the "French Francs
Note"), as such note may be amended, modified, supplemented, extended,
renewed or replaced from time to time, 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
Amended, Restated and Substituted Promissory Note dated June 22, 2001
executed by the Borrower in favor of the Bank in the original principal
amount of up to $15,000,000 (the "Dollar Note"), as such note may be
amended, modified, supplemented, extended, renewed or replaced from
time to time, the terms of which are incorporated herein by reference.
SECTION 2.3 Amendment to Section 2.13(i). Section 2.13(i) of the
Existing Credit Agreement is hereby amended in its entirety to read as follows:
(i) The Borrower shall pay the Bank a fee at a rate per
annum equal to the Applicable Percentage on the undrawn amount of each
Letter of Credit, such fee to be payable quarterly in arrears;
SECTION 2.4 Addition of Section 2.14. A new Section 2.14 is hereby
added to the Existing Credit Agreement to read as follows:
Section 2.14 Commitment Fee. In consideration of the Bank's
commitments hereunder, the Borrower agrees to pay to the Bank a
commitment fee (the "Commitment Fee") equal to the Applicable
27
Percentage per annum on the average daily unused amount of the
aggregate Revolving Loan Committed Amount for the applicable period.
The Commitment Fee shall accrue from the Amendment No. 4 Effective Date
and shall be payable quarterly in arrears on the 15th day following the
last day of each calendar quarter for the immediately preceding quarter
(or portion thereof) beginning with the first such date to occur after
the Amendment No. 4 Effective Date.
SECTION 2.5 Amendment to Section 3.05. Section 3.05 of the Existing
Credit Agreement is hereby amended by replacing the first sentence thereof with
the following:
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 on the date of Amendment No.
4 and after giving effect to any amendment or modification to the
Syndicated Credit Agreement which the Bank, acting in its capacity as
the lender hereunder, has approved in a writing referring to this
Credit Agreement (the "Incorporated Representations"), are hereby
incorporated by reference and shall be binding on the Borrower as if
set forth fully herein.
SECTION 2.6 Amendment to Section 4.01. Section 4.01 of the Existing
Credit Agreement is hereby amended by replacing the first sentence thereof with
the following:
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 on the date of Amendment No. 4 and after giving
effect to any amendment or modification to the Syndicated Credit
Agreement which the Bank, acting in its capacity as the lender
hereunder, has approved in a writing referring to this Credit Agreement
(the "Incorporated Covenants"), are hereby incorporated by reference
and shall be binding on the Borrower as if set forth fully herein.
III
CONDITIONS TO EFFECTIVENESS
SECTION 3.1. Amendment No. 4 Effective Date. This Amendment shall be
and become effective as of the date hereof (the "Amendment No. 4 Effective
Date") when all of the conditions set forth in this Section 3.1 shall have been
satisfied, and thereafter, this Amendment No. 4 shall be known, and may be
referred to, as "Amendment No. 4."
SECTION 3.1.1. Execution of Counterparts. The Bank shall have
received (including by telecopy) counterparts of this Amendment No. 4
which shall have been duly executed on behalf of the Borrower, the
Guarantors, the other subsidiaries of the Borrower listed on the
signature pages hereto and the Bank.
SECTION 3.1.2. Legal Details, Etc. All documents executed or
submitted pursuant hereto shall be reasonably satisfactory in form and
substance to the Bank and its counsel prior to or by the time of
closing. Prior to or by the time of closing, the Bank and its counsel
shall have received all information, and such counterpart originals or
such certified or other copies of such originals, as the Bank or its
counsel may reasonably request, and all legal matters incident to the
transactions contemplated by this Amendment No. 4 shall be reasonably
satisfactory to the Bank and its counsel.
IV
MISCELLANEOUS
SECTION 4.1. Representations and Warranties. The Borrower hereby
represents and warrants to the Bank that, after giving effect to this Amendment,
(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
incorporated pursuant to Section 3.05 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).
28
SECTION 4.2. Cross-References. References in this Amendment to any
Section are, unless otherwise specified, to such Section of this Amendment.
SECTION 4.3. Instrument Pursuant to Existing Credit Agreement. This
Amendment is a document executed pursuant to the Existing Credit Agreement and
shall (unless otherwise expressly indicated therein) be construed, administered
and applied in accordance with the terms and provisions of the Existing Credit
Agreement.
SECTION 4.4. Credit Documents. The Borrower, the Guarantors and the
other subsidiaries of the Borrower listed on the signature pages hereto 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 Amendment, 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 4.5. Counterparts, Effectiveness, Etc. This Amendment may be
executed by the parties hereto in several counterparts, each of which shall be
deemed to be an original and all of which shall constitute together but one and
the same agreement. Delivery of executed counterparts of this Amendment by
telecopy shall be effective as an original and shall constitute a representation
that an original shall be delivered.
SECTION 4.6. Governing Law; Entire Agreement. THIS AMENDMENT 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 4.7. Successors and Assigns. This Amendment shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective duly authorized officers as of the day and year
first above written.
BORROWER: XXXXX ENTERPRISES, INCORPORATED
--------
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
GUARANTORS: XXXXX REALTY, INC.
----------
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
29
XXXXX E-COMMERCE INCORPORATED
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
SUBSIDIARIES OF THE BORROWER:
----------------------------
DATASVAR SUPPORT AB,
STOCKHOLM SWEDEN
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
XXXXX ENTERPRISES GmbH
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
XXXXX ENTERPRISES INCORPORATED
HOLDINGS BV
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
XXXXX ENTERPRISES INCORPORATED BV
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
SYKES HOLDINGS OF BELGIUM B.V.B.A.
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
30
BANK: BANK OF AMERICA, N.A., formerly known
---- as NationsBank, N.A.
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
