EXHIBIT 10.38(I)
NINTH AMENDMENT AGREEMENT
-------------------------
AGREEMENT, dated as of May 1, 1996, among XXXXXX SERVICE GROUP, INC., a New
Jersey corporation, XXXXXX INTERNATIONAL, INC., a Maryland corporation, XXXXXX
SERVICE GROUP CANADA, LTD., a Canadian corporation, and GENERAL ELECTRIC CAPITAL
CORPORATION, a New York corporation.
BACKGROUND
----------
A. Capitalized terms not otherwise defined shall have the meanings
ascribed to them in the Credit Agreement dated as of May 31, 1994, between
Xxxxxx Service Group, Inc. and General Electric Capital Corporation (as amended,
modified or supplemented from time to time, the "Credit Agreement").
----------------
B. The Borrower has requested that the Lender increase, from $6,000,000
to $9,000,000, the maximum amount of outstanding Letters of Credit to be issued
pursuant to the Credit Agreement.
C. The Lender has agreed to the Borrower's request subject to the terms
and conditions of this Agreement.
AGREEMENT
---------
In consideration of the Background, which is incorporated by reference, the
parties, intending to be legally bound, agree as follows:
1. Modifications. All the terms and provisions of the Credit
-------------
Agreement and the other Loan Documents shall remain in full force and effect
except that the second sentence of Section 2.10 of the Credit Agreement is
deleted and the following is substituted therefor:
The maximum amount of outstanding Letters of Credit
shall not exceed $9,000,000 in the aggregate at any time.
2. Conditions Precedent, The Lender's obligations under this
---------------------
Agreement are contingent upon the Lender's receipt of the following, all in
form, scope and content acceptable to the Lender in its sole discretion:
(a) Amendment Agreement This Agreement duly executed by parties
-------------------
hereto.
(b) Other. Such other agreements and instruments as the Lender
-----
shall require.
3. Reaffirmation by Borrower. The Borrower acknowledges and agrees,
-------------------------
and reaffirms, that it is legally, validly and enforceably indebted to the
Lender under the Revolving Note without defense, counterclaim or offset, and
that it is legally, validly and enforceably liable to the Lender for all costs
and expenses of collection and attorneys' fees related to or in any way arising
out of this Agreement, the Credit Agreement, the Revolving Note and the other
Loan Documents. The Borrower hereby restates and agrees to be bound by all
covenants contained in the Credit Agreement and the other Loan Documents and
hereby reaffirms that all of the representations and warranties contained in the
Credit Agreement remain true and correct in all material respects except as
disclosed in connection with the execution and delivery of the First Amendment
Agreement dated December 14, 1994 (the "First Amendment Agreement"). The
Borrower represents that except as set forth in the Credit Agreement and the
First Amendment Agreement, there are not pending or to the Borrower's knowledge
threatened, legal proceedings to which the Borrower or either of the Guarantors
is a party, or which materially or adversely affect the transactions
contemplated by this Agreement or the ability of the Borrower or either of the
Guarantors to conduct its business. The Borrower acknowledges and represents
that the resolutions of the Borrower dated May 25, 1994, remain in full force
and effect and have not been amended, modified, rescinded or otherwise
abrogated.
4. Reaffirmation by Guarantors. Each of the Guarantors acknowledges
---------------------------
that each is legally and validly indebted to the Lender under the Guaranty of
each without defense, counterclaim or offset. Each of the Guarantors affirms
that the Guaranty of each remains in full force and effect and acknowledges that
the Guaranty of each encompasses, without limitation, the amount of the Maximum
Revolving Loan, as modified herein.
5. Other Representations By Borrower and Guarantors. The Borrower
------------------------------------------------
and the Guarantors each represents and confirms that (a) no Default or Event of
Default has occurred and is continuing and the Lender has not given its consent
to or waived any Default or Event of Default and (b) the Credit Agreement and
the other Loan Documents are in full force and effect and enforceable against
the Borrower and Guarantors in accordance with the terms thereof. The Borrower
and the Guarantors each represent and confirm that as of the date hereof, each
has no claim or defense (and the Borrower and the Guarantors each hereby waive
every claim and defense) against the Lender arising out of or relating to the
Credit Agreement and the other Loan Documents or the making, administration or
enforcement of the Revolving Loan and the remedies provided for under the Loan
Documents.
6. No Waiver By Lender. The Borrower and the Guarantors each
-------------------
acknowledges that (a) by the execution by each of this Agreement, the Lender is
waiving any Default, whether now existing or hereafter occurring, disclosed
or
2
undisclosed, by the Borrower under the Loan Documents and (b) the Lender
reserves all rights and remedies available to it under the Loan Documents and
otherwise.
3
The parties have executed this Agreement as of April 30, 1996.
XXXXXX SERVICE GROUP, INC.
By /s/ Xxxxxxx X. Xxxxxxxxxx
-------------------------
Xxxxxxx X. Xxxxxxxxxx
Title: Senior Vice President - Finance
XXXXXX INTERNATIONAL, INC.
By /s/ Xxxxxxx X. Xxxxxxxxxx
-------------------------
Xxxxxxx X. Xxxxxxxxxx
Title: Senior Vice President - Finance
XXXXXX SERVICE GROUP CANADA, LTD.
By /s/ Xxxxxxx X. Xxxxxxxxxx
-------------------------
Xxxxxxx X. Xxxxxxxxxx
Title: Senior Vice President - Finance
GENERAL ELECTRIC CAPITAL CORPORATION
By /s/ Xxxxxx X. Xxxxxxxxx
-----------------------
Xxxxxx X. Xxxxxxxxx
Title: Duly Authorized Signatory
4
