EXHIBIT 10.38(e)
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FIFTH AMENDMENT AGREEMENT
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AGREEMENT, dated as of October 15, 1999, among XXXXXX SERVICE GROUP, INC.,
a New Jersey corporation, XXXXXX INTERNATIONAL, INC., a Maryland corporation,
the "Subsidiaries" signatory hereto, and GENERAL ELECTRIC CAPITAL CORPORATION, a
New York corporation.
Background
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A. Capitalized terms not otherwise defined shall have the meanings
ascribed to them in the Amended and Restated Credit Agreement dated as of
November 7, 1997, 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 modify certain of the
financial covenants contained in the Credit Agreement.
C. The Lender has agreed to the Borrower's request subject to the terms
and conditions of this Agreement.
Agreement
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In consideration of the Background, which is incorporated by reference, the
parties, intending to be legally bound, agree as follows:
3. Modifications. All the terms and provisions of the Credit Agreement and
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the other Loan Documents shall remain in full force and effect except as
follows:
(a) Subsection (a) of Schedule 6.2(r) to the Credit Agreement is
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deleted and the following replacement subsection is substituted therefor:
(a) Maximum Capital Expenditures. The Parent and its
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Subsidiaries (except Xxxxxx UK), on a consolidated basis, shall not
make Capital Expenditures that exceed in the aggregate the amounts set
forth below for each Fiscal Year, which amount shall be noncumulative
from year to year:
Maximum Capital
Fiscal Year Expenditures
1997 $4,000,000
1998 $4,200,000
1999 $6,000,000
2000 $6,000,000
2001 $6,000,000
(b) Subsection (c) of Schedule 6.2(r) of the Credit Agreement is
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deleted and the following replacement subsection is substituted
therefor:
(c) Fixed Charge Coverage Ratio. The Parent and its Subsidiaries
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(except Xxxxxx UK), on a consolidated basis, shall have a Fixed Charge
Coverage Ratio measured at each of the dates set forth below for the
period of the Fiscal Year to such date (and shall maintain at all
times during the period from and including such date through but
excluding the last day of the Fiscal Quarter immediately succeeding
such date), of not less than the amount set forth opposite such date:
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Fixed Charge
Date Coverage Ratio
September 30, 1997 1.2 : 1.0
December 31, 1997 1.2 : 1.0
March 31, 1998 1.0 : 1.0
June 30, 1998 1.1 : 1.0
September 30, 1998 1.2 : 1.0
December 31, 1998 1.2 : 1.0
March 31, 1999 1.0 : 1.0
June 30, 1999 1.1 : 1.0
September 30, 1999 1.1 : 1.0
December 31, 1999 1.1 : 1.0
March 31, 2000 0.9 : 1.0
June 30, 2000 1.0 : 1.0
September 30, 2000 1.1 : 1.0
December 31, 2000 1.1 : 1.0
March 31, 2001 0.9 : 1.0
June 30, 2001 1.0 : 1.0
4. 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 the parties
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hereto; and
(b) Other. Such other agreements and instruments as the Lender shall
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require.
3. Reaffirmation By Borrower and Guarantors. The Borrower acknowledges
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and agrees, and reaffirms, that it is legally, validly and enforceably indebted
to the Lender under the Notes 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 Notes and the other Loan Documents.
The Borrower and the Guarantors hereby restate and agree to be bound by all
covenants contained in the Credit Agreement and the other Loan Documents and
hereby reaffirm that all of the representations and warranties contained in the
Credit Agreement and the other Loan Documents remain true and correct in all
material respects. The Borrower and the Guarantors represent that except as set
forth in the Credit Agreement, there are not pending or to the Borrower's and
the Guarantors' knowledge threatened, legal proceedings to which the Borrower or
any 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
any of the Guarantors to conduct its business. The Borrower and the Guarantors
acknowledge and represent that the resolutions of the Borrower and the
Guarantors, dated on or about November 7, 1997, 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
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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 Obligations, as modified
herein.
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5. Reaffirmation of Collateral. The Borrower and the Guarantors reaffirm
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the liens, security interests and pledges granted pursuant to the Loan Documents
to secure the obligations of each thereunder.
6. Other Representations By Borrower and Guarantors. The Borrower and
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each Guarantor 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 each Guarantor in accordance with the terms thereof. The Borrower
and each Guarantor represents and confirms that as of the date hereof, each has
no claim or defense (and the Borrower and each Guarantor hereby waives 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 Loans and the remedies provided for under the Loan Documents.
7. No Waiver By Lender. The Borrower and each Guarantor acknowledges that
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(a) by the execution by each of this Agreement, the Lender is not waiving any
Default, whether now existing or hereafter occurring, disclosed or 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.
The parties have executed this Agreement as of the date first above written.
Borrower:
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XXXXXX SERVICE GROUP, INC.
By /s/ Xxxxxxx X. Xxxxxxxxxx
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Xxxxxxx X. Xxxxxxxxxx
Title: SeniorVice President - Finance
Parent:
XXXXXX INTERNATIONAL, INC.
By /s/ Xxxxxxx X. Xxxxxxxxxx
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Xxxxxxx X. Xxxxxxxxxx
Title: Senior Vice President - Finance
Subsidiaries:
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XXXXXX TECHNOLOGY SOLUTIONS, INC.
By /s/ Xxxxxxx X. Xxxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxxx
Title: Senior Vice President and Chief
Financial Officer
XXXXXX TELECOM, INC.
By /s/ Xxxxxxx X. Xxxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxxx
Title: Senior Vice President and Chief
Financial Officer
XXXXXX SERVICES, INC.
By /s/ Xxxxxxx X. Xxxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxxx
Title: Senior Vice President and Chief
Financial Officer
XXXXXX UTILITY SERVICE, INC.
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By /s/ Xxxxxxx X. Xxxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxxx
Title: Senior Vice President and Chief
Financial Officer
Lender:
GENERAL ELECTRIC CAPITAL CORPORATION
By /s/ Xxxxxx Xxxxxxxxx
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Name: Xxxxxx Xxxxxxxxx
Title: Duly Authorized Signatory
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