THIRD AMENDMENT AGREEMENT
Exhibit 10.51
This THIRD AMENDMENT AGREEMENT (this “Amendment”) is made as of the 15th day of
December, 2006, by and among:
(a) XXXXX ENTERPRISES, INCORPORATED, a Florida corporation (“Borrower”);
(b) the Lenders, as defined in the Credit Agreement, as hereinafter defined:
(c) KEYBANK NATIONAL ASSOCIATION, as lead arranger, book runner and administrative agent for
the Lenders under the Credit Agreement (“Agent”); and
(d) BNP PARIBAS, as documentation agent.
WHEREAS, Borrower, Agent and the Lenders are parties to that certain Credit
Agreement, dates as of March 15, 2004, that provides, among other things, for loans and letters of
credit aggregating Fifty Million Dollars ($50,000,000), all upon certain terms and conditions (as
amended and as the same may from time to time be further amended, restated or otherwise modified,
the “Credit Agreement”);
WHEREAS, Borrower, Agent and the Lenders desire to amend the Credit Agreement to modify
certain provisions thereof and add certain provisions thereto; and
WHEREAS, each capitalized term used herein and defined in the Credit Agreement, but not
otherwise defined herein, shall have the meaning given such term in the Credit Agreement;
NOW, THEREFORE, in consideration of the premises and of the mutual covenants herein and for
other valuable consideration, Borrower, Agent and the Lenders agree as follows:
1. Notice of Foreign Restructuring. Borrower has notified Agent and the Lenders that
it plans to transfer one hundred percent (100%) of its ownership interests in Xxxxx Enterprises
Incorporated S.L. (the “Spanish Entity”) to SEI International Services S.a.r.l., a company
organized under the laws of Luxembourg, in order to simplify operations, reduce administrative
costs and provide overall greater efficiencies among its Foreign Subsidiaries (the “2006 Foreign
Restructuring”).
2. Consent to 2006 Foreign Restructuring. Agent and the Lenders hereby consent to the
2006 Foreign Restructuring on the condition that no Default or Event of Default exists, or
immediately after the completion of the 2006 Foreign Restructuring, will exist. This Amendment
shall serve as evidence of such consent. The consent contained in this Amendment shall not be
deemed to waive or amend any other provision of the Credit Agreement or the Loan Documents and
shall not serve as consent to or amendment of any other matter prohibited by the terms and
conditions of the Credit Agreement or other Loan Documents. All terms of the Credit Agreement and
the other Loan documents remain in full force and effect and constitute the legal, valid, binding
and enforceable obligations of Borrower to Agent and the Lenders.
3. Amendment to Credit Agreement. The Credit Agreement is hereby amended to delete
Schedule 3 (Pledged Securities) therefrom and to insert in place thereof a new Schedule
3 in the form of Schedule 3 hereto.
4. Release of Security Interest Under Borrower Pledge Agreement. In connection with
the 2006 Foreign Restructuring, effective as of December 15, 2006 Agent and the Lenders hereby
release and terminate their security interest in the shares of the Spanish Entity, under the
certain Pledge Agreement, dates as of March 15, 2004, by Borrower in favor of Agent, for the
benefit of the Lenders.
5. Closing Deliveries. Concurrently with the execution of this Amendment, Borrower
shall:
(a) cause each Guarantor of Payment to execute the attached
Acknowledgement and Agreement; and
(b) pay all legal fees and expenses of Agent in connection with
this Amendment.
6. Representations and Warranties. Borrower hereby represents and warrants to Agent
and the Lenders that (a) Borrower has the legal power and authority to execute and deliver this
Amendment; (b) the officers executing this Amendment have been duly authorized to execute and
deliver the same and bind Borrower with respect to the provisions hereof; (c) the execution and
delivery hereof by Borrower and the performance and observance by Borrower of the provisions hereof
do not violate or conflict with the organizational agreements of Borrower or any law applicable to
Borrower or result in a breach of any provision of or constitute a default under any other
agreement, instrument or document binding upon or enforceable against Borrower; (d) no Default or
Event of Default exists under the Credit Agreement, nor will any occur immediately after the
execution and delivery of this Amendment or by the performance or observance of any provision
hereof; (e) Borrower is not aware of any claim or offset against, or defense or counterclaim to,
Borrower’s obligations or liabilities under the Credit Agreement or any Related Writing; and (f)
this Amendment constitutes a valid and binding obligation of Borrower in every respect, enforceable
in accordance with its terms.
7. References to Credit Agreement. Each reference that is made in the Credit Agreement
or any Related Writing shall hereafter be construed as a reference to the Credit Agreement as
amended hereby. Except as herein otherwise specifically provided, all terms and provisions of the
Credit Agreement are confirmed and ratified and shall remain in full force and effect and be
unaffected hereby. This Amendment is a Related Writing.
8. Waiver. Borrower, by signing below, hereby waives and releases Agent and each of
the Lenders, and their respective directors, officers, employees, attorneys, affiliates and
subsidiaries, from any and all claims, offsets, defenses and counterclaims of which Borrower is
aware, such waiver and release being with full knowledge and understanding of the circumstances and
effect thereof and after having consulted legal counsel with respect thereto.
9. Counterparts. This Amendment may be executed in any number of counterparts, by
different parties hereto in separate counterparts and by facsimile signature, each of which when so
executed and delivered shall be deemed to be an original and all of which taken together shall
constitute but one and the same agreement.
10. Headings. The headings, captions and arrangements used in this Amendment are for
convenience only and shall not affect the interpretation of this Amendment.
11. Severability. Any term or provision of this Amendment held by a court of
competent jurisdiction to be invalid or unenforceable shall not impair or invalidate the remainder
of this Amendment and the effect thereof shall be confined to the term or provision so held to be
invalid or unenforceable.
12. Governing Law. The rights and obligations of all parties hereto shall be governed
by the laws of the State of Ohio, without regard to principles of conflicts of laws.
[Remainder of page intentionally left blank.]
13. JURY TRIAL WAIVER. BORROWER, THE LENDERS AND AGENT, TO THE EXTENT PERMITTED
BY LAW, EACH HEREBY WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE,
WHETHER SOUNDING IN CONTRACT, TORT OR OTHERSIE, AMONG BORROWER, THE LENDERS AND AGENT, OR
ANY THEREOF, ARISING OUT OF, IN CONNECTION WITH, RELATED TO OR INCIDENTAL TO THE
RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS AMENDMENT OR ANY NOTE OR OTHER
INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH OR THE
TRANSACTIONS RELATED THERETO.
IN WITNESS WHEROF, the parties have executed and delivered this Amendment as of the
date first set forth above.
XXXXX ENTERPRISES, INCORPORATED |
||||
By: | /s/ W. Xxxxxxx Xxxxxxx | |||
W. Xxxxxxx Xxxxxxx, | ||||
Senior Vice President — Finance | ||||
KEYBANK NATIONAL ASSOCIATION, as Agent and as a Lender |
||||
By: | /s/ Xxxx Xxxxxxxxxx | |||
Xxxx Xxxxxxxxxx | ||||
Senior Vice President | ||||
BNP PARIBAS, as Documentation Agent and as a Lender |
||||
By: | /s/ Xxxxx Xxxx | |||
Name: | Xxxxx Xxxx | |||
Title: | Director | |||
By: | /s/ Xxxxxx Xxxxxx | |||
Name: | Xxxxxx Xxxxxx | |||
Title: | Managing Director |
ACKNOWLEDGEMENT AND AGREEMENT
The undersigned consent and agree to and acknowledge the terms of the foregoing Third
Amendment Agreement dated as of December 15, 2006. The undersigned further agree that the
obligations of the undersigned pursuant to the Guaranty of Payment executed by the undersigned
shall remain in full force and effect and be unaffected hereby.
The undersigned hereby waive and release Agent and the Lenders and their respective directors,
officers, employees, attorneys, affiliates and subsidiaries from any and all claims, offsets,
defenses and counterclaims of which the undersigned are aware, as of the date hereof, such waiver
and release being with full knowledge and understanding of the circumstances and effect thereof and
after having consulted legal counsel with respect thereto.
JURY TRIAL WAIVER. THE UNDERSIGNED, TO THE EXTENT PERMITTED BY LAW, HEREBY WAIVE ANY
RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT OR
OTHERWISE, AMONG BORROWER, AGENT THE LENDERS AND THE UNDERSIGNED, OR ANY THEREOF, ARISING OUT OF,
IN CONNECTION WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN
CONNECTION WITH THIS AMENDMENT OR ANY NOTE OR OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR
DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS RELATED THERETO.
XXXXX ENTERPRISES — SOUTH AFRICA | SYKES E-COMMERCE, INCORPORATED | |||||||||
By:
|
/s/ W. Xxxxxxx Xxxxxxx | By: | /s/ Xxxxx X. Xxxxxx | |||||||
Name: W. Xxxxxxx Xxxxxxx | Name: Xxxxx X. Xxxxxx | |||||||||
Title: President | Title: Director | |||||||||
SYKES REALTY, INC. | MCQUEEN INTERNATIONAL INCORPORATED |
|||||||||
By:
|
/s/ Xxxxx X. Xxxxxx | By: | /s/ W. Xxxxxxx Xxxxxxx | |||||||
Name: Xxxxx X. Xxxxxx | Name: W. Xxxxxxx Xxxxxxx | |||||||||
Title: Senior Vice President | Title: Director | |||||||||
SYKES GLOBAL HOLDINGS LLC | XXXXX XX HOLDINGS LLC | |||||||||
By:
|
/s/ W. Xxxxxxx Xxxxxxx | By: | /s/ W. Xxxxxxx Xxxxxxx | |||||||
Name: W. Xxxxxxx Xxxxxxx | Name: W. Xxxxxxx Xxxxxxx | |||||||||
Title: Senior Vice President | Title: Senior Vice President |
SCHEDULE 3
PLEDGED SECURITIES
Pledged | ||||||||
Name of Subsidiary | Jurisdiction | Pledgor | Percentage | |||||
Sykes (Bermuda) Holdings Limited
|
Bermuda | Xxxxx XX Holdings LLC | 65 | % |