EXHIBIT 10.57
AMENDMENT NO. 2
TO
REVOLVING CREDIT AGREEMENT
THIS AMENDMENT NO. 2 TO REVOLVING CREDIT AGREEMENT (this "Amendment")
is made and effective as of June 30, 2003, by and among XXXXX ENTERPRISES,
INCORPORATED, a Florida corporation (the "Borrower"), the several banks and
other financial institutions from time to time party hereto (the "Lenders"), and
SUNTRUST BANK, in its capacity as Administrative Agent for the Lenders (the
"Administrative Agent") and in its capacity as Collateral Agent for the Lenders
(the "Collateral Agent").
W I T N E S S E T H:
WHEREAS, the Borrower, the Lenders and the Administrative Agent are
parties to that certain Revolving Credit Agreement, dated as of April 5, 2002,
as amended by that certain Amendment No. 1 to Revolving Credit Agreement, dated
as of September 30, 2002 (as amended, the "Existing Credit Agreement"), pursuant
to which the Lenders have agreed to establish for the Borrower a revolving
credit facility in the aggregate principal amount of $40,000,000, with a letter
of credit subfacility in the aggregate principal amount of up to $15,000,000 and
a swingline subfacility in the aggregate principal amount of up to $10,000,000
thereunder, all upon the terms and subject to the conditions specified in the
Existing Credit Agreement; and
WHEREAS, upon request of the Borrower, the Lenders and the
Administrative Agent have agreed to modify and amend the Existing Credit
Agreement as set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements herein contained, the Borrower, the Lenders and the
Administrative Agent agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 CERTAIN DEFINITIONS. Unless otherwise defined
herein or the context otherwise requires, the following terms as used in this
Amendment, including the preamble and recitals, have the meanings set forth
below:
"AMENDED CREDIT AGREEMENT" shall mean the Existing Credit
Agreement, as amended hereby.
"AMENDMENT NO. 2 EFFECTIVE DATE" shall have the meaning
assigned to such term in Article III.
SECTION 1.2 OTHER DEFINITIONS. Unless otherwise defined herein,
capitalized terms used herein and not defined herein shall have the meanings
assigned to such terms in the Existing Credit Agreement.
ARTICLE II
AMENDMENTS TO EXISTING AGREEMENT
SECTION 2.1 AMENDMENT TO ARTICLE VII - NEGATIVE COVENANTS.
Effective as of the Amendment No. 2 Effective Date, the Existing Credit
Agreement is hereby amended as follows:
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(a) Subsection (b) under Section 7.4 of "ARTICLE VII -
NEGATIVE COVENANTS" of the Existing Credit Agreement is hereby deleted in its
entirety and the following is substituted in lieu thereof:
(b) The Borrower will not, and will not permit
any of its Subsidiaries to, make Capital Expenditures in the
aggregate (i) in excess of $15,000,000 during any fiscal
quarter of the Borrower commencing with the fiscal quarter
ending March 31, 2004 and thereafter, or (ii) in excess of (A)
$35,000,000 for any period of four consecutive fiscal quarters
of the Borrower commencing with the fiscal quarter ending June
30, 2003 (by way of illustration, the initial four consecutive
fiscal quarter period is July 1, 2002 through June 30, 2003),
through and including the fiscal quarter ending December 31,
2003 or (B) $50,000,000 for any period of four consecutive
fiscal quarters of the Borrower commencing with the fiscal
quarter ending March 31, 2004 and thereafter.
ARTICLE III
EFFECTIVENESS OF AMENDMENT NO. 2
SECTION 3.1 Upon execution hereof by the Borrower, the
Administrative Agent and the Required Lenders, this Amendment shall be and
become effective as of June 30, 2003 (the "AMENDMENT NO. 2 EFFECTIVE DATE"), and
hereafter, this Amendment shall be known, and may be referred to, as "AMENDMENT
NO. 2".
ARTICLE IV
MISCELLANEOUS
SECTION 4.1 REPRESENTATIONS AND WARRANTIES. The Borrower hereby
represents and warrants to the Administrative Agent and the Lenders that, after
giving effect to this Amendment, (a) no Default or Event of Default exists under
the Existing Credit Agreement or any of the other Loan Documents, (b) all
representations and warranties of each Loan Party set forth in the Loan
Documents are true and correct in all material respects on and as of the date
hereof (except for those which expressly relate to an earlier date), (c) since
the date of the most recent financial statements of the Borrower described in
Section 5.1(a) or (b) of the Existing Credit Agreement, there has been no change
which has had or could reasonably be expected to have a Material Adverse Effect,
and (d) the Loan Documents are legal, valid and binding obligations of the
respective Loan Parties and are enforceable by the Administrative Agent and the
Lenders, as applicable, against such Loan Parties in accordance with their
respective terms.
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 LOAN DOCUMENTS. The Borrower hereby confirms and
agrees that the Loan Documents are, and shall continue to be, in full force and
effect and hereby ratify and approve in all respects its obligations thereunder,
except that, upon the effectiveness of, and on and after the date of this
Amendment, all references in each Loan 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 INDEMNIFICATION. The Borrower shall pay, and hold the
Administrative Agent, the Collateral Agent and each of the Lenders harmless from
and against, any and all present and future stamp, documentary, and other
similar taxes with respect to this Amendment and any other Loan Documents, any
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collateral described therein, or any payments due thereunder, and save the
Administrative Agent and each Lender harmless from and against any and all
liabilities with respect to or resulting from any delay or omission to pay such
taxes. The indemnity provided herein shall survive repayment of the Loans.
SECTION 4.6 ENTIRE AGREEMENT. This Amendment constitutes the
entire agreement among the parties hereto and thereto regarding the subject
matters hereof and thereof and supersedes all prior agreements and
understandings, oral or written, regarding such subject matters.
SECTION 4.7 COUNTERPARTS, 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. The parties may execute facsimile copies of this Amendment and the
facsimile signature of any such party shall be deemed an original and fully
binding on said party; provided, any party executing this Amendment by facsimile
signature agrees to promptly provide five (5) original executed copies of this
Amendment to Administrative Agent.
SECTION 4.8 GOVERNING LAW; ETC. This Amendment shall be governed
by and construed in accordance with the applicable terms and provisions of
Section 10.5 - Governing Law; Jurisdiction; Consent to Service of Process of
"ARTICLE X - MISCELLANEOUS" of the Existing Credit Agreement, which terms and
provisions are incorporated herein by reference.
SECTION 4.9 NO OTHER MODIFICATIONS. Except as hereby amended,
no other term, condition or provision of the Existing Credit Agreement shall be
deemed modified or amended, and this Amendment shall not be considered a
novation.
SECTION 4.10 SUCCESSORS AND ASSIGNS. This Amendment shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
[Signatures follow on next page]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed [under seal in the case of the Borrower] by their respective duly
authorized officers as of the day and year first above written.
XXXXX ENTERPRISES, INCORPORATED
By: /s/ W. Xxxxxxx Xxxxxxx
-----------------------------------------
Name: W. Xxxxxxx Xxxxxxx
Title: Group Executive and
Senior Vice President-Finance
[SEAL]
SUNTRUST BANK, AS ADMINISTRATIVE AGENT, AS
COLLATERAL AGENT, AS SWINGLINE LENDER AND AS A
LENDER
By: /s/ Xxxxx Xxxxxxxx
------------------------------------------
Name: Xxxxx Xxxxxxxx
-------------------------------------
Title: Vice President
------------------------------------
Revolving Commitment: $16,666,666
Swingline Commitment: $10,000,000
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WACHOVIA BANK, NATIONAL ASSOCIATION, AS A LENDER
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxxxx
--------------------------------------
Title: Director
-------------------------------------
Revolving Commitment: $13,333,333
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BNP PARIBAS, AS A LENDER
By: /s/ Xxxxx Xxxxxx
------------------------------------------
Name: Xxxxx Xxxxxx
-------------------------------------
Title: Associate
-------------------------------------
By: /s/ Xxxxxx Xxxxxx
------------------------------------------
Name: Xxxxxx Xxxxxx
-------------------------------------
Title: Vice President
------------------------------------
Revolving Commitment: $10,000,000
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Accepted and Agreed to as of the Amendment No. 2
Effective Date:
SYKES GLOBAL HOLDINGS, LLC
XXXXX XX HOLDINGS, LLC
SYKES FINANCIAL SERVICES, INC.
By: /s/ W. Xxxxxxx Xxxxxxx
------------------------------------------
Name: W. Xxxxxxx Xxxxxxx
Title: Senior Vice President and
Chief Financial Officer
SYKES REALTY, INC.
By: /s/ W. Xxxxxxx Xxxxxxx
------------------------------------------
Name: W. Xxxxxxx Xxxxxxx
Title: Vice President and
Chief Financial Officer
XXXXX ENTERPRISES-SOUTH AFRICA,
INC.
By: /s/ W. Xxxxxxx Xxxxxxx
------------------------------------------
Name: W. Xxxxxxx Xxxxxxx
Title: President
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