EXHIBIT 10.38(d)
----------------
FOURTH AMENDMENT AGREEMENT
--------------------------
AGREEMENT, dated as of September 24, 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
----------
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 increase, from $3,000,000 to
$10,000,000, the amount permitted to be used for the repurchase of publicly
traded Capital Stock of the Parent.
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 as
follows:
(a) Section 6.2(f) of the Credit Agreement is deleted and the
--------------
following is substituted therefor:
(f) Acquisition of Capital Stock of the Borrower. Purchase,
--------------------------------------------
acquire, redeem or retire or make any commitment to purchase, acquire,
redeem or retire any of the Capital Stock of the Borrower, whether now
or hereafter outstanding, except that the Borrower may expend up to
the aggregate amount of $10,000,000 in connection with the repurchase
of publicly traded Capital Stock of the Parent, provided that at the
time of, and immediately after giving effect to such repurchase, (i)
no Default or Event of Default then exists or will result therefrom,
(ii) the Borrower shall have Borrowing Availability of not less than
$5,000,000, and (iii) the Borrower pays to the Lender an amount equal
to the Stock Buyback Usage Fee.
(b) The definition of "Fees" contained in Annex A to the Credit
----
Agreement is deleted and the following is substituted therefor:
"Fees" means the Closing Fee, the Letter of Credit Fees, the
----
Early Termination Fee, the Collateral Monitoring Fee, the Unused
Facility Fee, the Stock Buyback Usage Fee and the Transaction
Expenses; all Fees shall be computed on the actual number of days
elapsed in a year of 360 days, where applicable, and the Borrower
acknowledges and agrees that the Lender shall have the right to charge
the Fees to the Working Capital Revolving Loan Account.
(c) The following is added after the definition of "Solvency
Certificate" contained in Annex A to the Credit Agreement:
"Stock Buyback Usage Fee" means an amount equal to one-quarter of
-----------------------
one percent (0.25%) of the amount by which the proceeds of the Working
Capital Revolving Loan used by the Borrower to effect the repurchase
of publicly traded Capital Stock of the Parent pursuant to Section
6.2(f)
1
exceed the sum of (x) $3,000,000 and (y) the aggregate of amounts
previously expended under Section 6.2(f).
2. Modification Fee. In consideration of the Lender's execution, delivery
----------------
and performance of this Agreement, including, without limitation, the increase
of the amount permitted to be used for the repurchase of publicly traded Capital
Stock of the Parent, the Borrower is simultaneously paying to the Lender the
amount of $25,000 in immediately available funds (the "Modification Fee").
3. 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
-------------------
hereto;
(b) Modification Fee. The payment to the Lender of the Modification
----------------
Fee; and
(c) Other. Such other agreements and instruments as the Lender shall
-----
require.
4. Reaffirmation By Borrower. The Borrower acknowledges 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 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. The Borrower represents that except
as set forth in the Credit Agreement, there are not pending or to the Borrower's
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 acknowledges and represents
that the resolutions of the Borrower dated on or about November 7, 1997, remain
in full force and effect and have not been amended, modified, rescinded or
otherwise abrogated.
5. 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 Obligations, as modified
herein.
6. Reaffirmation of Collateral. The Borrower reaffirms the liens,
---------------------------
security interests and pledges granted pursuant to the Loan Documents to secure
the obligations of each thereunder.
7. Other Representations By Borrower and Guarantors. The Borrower and
------------------------------------------------
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.
8. No Waiver By Lender. The Borrower and each Guarantor acknowledges that
-------------------
(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
2
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:
--------
XXXXXX SERVICE GROUP, INC.
By /s/ Xxxxxxx X. Xxxxxxxxxx
-------------------------
Xxxxxxx X. Xxxxxxxxxx
Title: SeniorVice President - Finance
Parent:
------
XXXXXX INTERNATIONAL, INC.
By /s/ Xxxxxxx X. Xxxxxxxxxx
-------------------------
Xxxxxxx X. Xxxxxxxxxx
Title: Senior Vice President - Finance
Subsidiaries:
------------
XXXXXX TECHNOLOGY SOLUTIONS, INC.
By /s/ Xxxxxxx X. Xxxxxxxxxx
-------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Senior Vice President and Chief
Financial Officer
XXXXXX TELECOM, INC.
By /s/ Xxxxxxx X. Xxxxxxxxxx
-------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Senior Vice President and Chief
Financial Officer
XXXXXX SERVICES, INC.
By /s/ Xxxxxxx X. Xxxxxxxxxx
-------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Senior Vice President and Chief
Financial Officer
XXXXXX UTILITY SERVICE, INC.
By /s/ Xxxxxxx X. Xxxxxxxxxx
-------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Senior Vice President and Chief
Financial Officer
3
Lender:
------
GENERAL ELECTRIC CAPITAL CORPORATION
By /s/ Xxxxxx Xxxxxxxxx
--------------------
Name: Xxxxxx Xxxxxxxxx
Title: Duly Authorized Signatory
4
