EXHIBIT 10.39(h)
EIGHT AMENDMENT AGREEMENT
AGREEMENT, dated as of March 26, 1996, to be effective as of December
31, 1995, 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
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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 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:
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) The definition of "Commitment Termination Date" contained in
Section " 1 .01 " to the Credit Agreement is deleted and the following is
substituted therefor:
"Commitment -Termination Date" means the earliest to occur of
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(i) May 31, 1997, (ii) thirty (30) days prior to the maturity date of
the indebtedness currently secured by the Montvale Mortgage (or any
extension, renewal or refinancing of such indebtedness), and (iii)
the date on which the Lender's obligation to make, and the Borrower's
right to receive, advances under this Agreement shall terminate under
Section 7.01 hereof.
(b) Schedule "6-02(u)" to the Credit Agreement is deleted and the
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Schedule "6.02(u)" attached hereto is substituted therefor.
2. Modification Fee
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(a) In consideration of the Lender's execution, delivery and
performance of this Agreement, the Borrower agrees to pay the Lender the amount
of $10,000 simultaneously within the execution and delivery of the Agreement.
(b) The Borrower agrees that the fee set forth under subsection
(a) above shall be deemed one of the "Fees" under the Credit Agreement.
3. Conditions Precedent. The Lender's obligations under this Agreement
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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
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parties hereto.
(b) Other- Such other agreements and instruments as the Lender
shall require.
4. Reaffirmation-By Borrower. The Borrower acknowledges and agrees, and
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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.
5. 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 amount of the Maximum
Revolving Loan, as modified herein.
6. Other Representations By Borrower and Guarantors. The Borrower and
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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.
7. No Waiver By Lender. The Borrower and the Guarantors each
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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 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 written
above to be effective as of December 31, 1995.
XXXXXX SERVICE GROUP. INC.
By /s/ Xxxxxxx X. Xxxxxxxxxx
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Xxxxxxx X. Xxxxxxxxxx
Vice President and Comptroller
XXXXXX INTERNATIONAL, INC.
By /s/ Xxxxxxx X. Xxxxxxxxxx
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Xxxxxxx X. Xxxxxxxxxx
Vice President and Comptroller
XXXXXX SERVICE GROUP. CANADA, LTD.
By /s/ Xxxxxxx X. Xxxxxxxxxx
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Xxxxxxx X. Xxxxxxxxxx
Assistant Secretary
GENERAL ELECTRIC CAPITAL CORPORATION
By /s/ Xxxxxx X. Xxxxxxxxx
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Xxxxxx X. Xxxxxxxxx
Duly Authorized Signatory
FINANCIAL COVENANTS
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There shall be no breach or failure to comply with any of the following
financial covenants, each of which shall be calculated in accordance with GAAP,
consistently applied.
(a) Maximum Capital Expenditures. The Parent and its Subsidiaries
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(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
set forth below, which amount shall be noncumulative from year to year: Maximum
Capital
Maximum Capital
Fiscal Year Expenditures
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1994 $2,400,000
1995 2,600,000
1996 2,600,000
1997 2,700,000
(b) Tangible Net-Worth. The Parent and its Subsidiaries, on a
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consolidated basis, shall not permit Tangible Net Worth measured as at each of
the dates set forth below for the period of the Fiscal Year to such date (and
shall 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
not permit Tangible Net Worth), to be less than the amount set forth opposite
such date:
Date Tangible Net Worth
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June 30, 1994 $10,000,000
September 30, 1994 10,250,000
December 31, 1994 11,000,000
March 31, 1995 11,000,000
June 30, 1995 11,250,000
September 30, 1995 11,500,000
December 31, 1995 5,200,000
March 31, 1996 4,700,000
June 30, 1996 6,100,000
September 30, 1996 7,800,000
December 31, 1996 9,500,000
March 31, 1997 9,500,000
(c) Fixed Charge Coverage Ratio. The parent and its Subsidiaries (except
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Xxxxxx UK), on a consolidated basis, shall not permit the Fixed Charge Coverage
Ratio measured on the last day of each Fiscal Quarter for that portion of the
current Fiscal Year to date, to be less than 1.0:1 (except that such Ratio shall
not be less than 0.6:1 for the period of four consecutive Fiscal Quarters ending
on December 31, 1995).
Schedule "6.02(u)"
to
Credit Agreement
(d) Leverage Ratio. The Parent and its Subsidiaries, on a consolidated
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basis, shall not permit the Leverage Ratio measured as at each of the dates set
forth below for the period of the Fiscal Year to such date (and shall 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 not permit the
Leverage Ratio) to be greater than the amount set forth opposite such date:
Fiscal Quarter Leverage Ratio
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June 30, 1994 5.7:1
September 30, 1994 5.0:1
December 31, 1994 5.0:1
March 31, 1995 5.0:1
June 30, 1995 5.0:1
September 30, 1995 5.0:1
December 31, 1995 16.0:1
March 31, 1996 18.0:1
June 30, 1996 14.0:1
September 30, 1996 11.0:1
December 31, 1996 8.5:1
March 31, 1997 8.5:1
(e) Interest Coverage Ratio. The Parent and its Subsidiaries (except
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Xxxxxx UK), on a consolidated basis, shall not permit the Interest Coverage
Ratio measured as at each of the dates set forth below for the period of the
Fiscal Year to such date (and shall at all times during the period from and
including such date through but including the last day of the Fiscal Quarter
immediately succeeding such date not permit the Interest Coverage Ratio) to be
less than the amount set forth opposite such date:
Fiscal Quarter Interest Coverage Ratio
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June 30, 1994 1.0:1
September 30, 1994 1.2:1
December 31, 1994 1.3:1
March 31, 1995 1.1:1
June 30, 1995 1.2:1
September 30, 1995 1.2:1
December 31, 1995 0.4:1
March 31, 1996 1.0:1
June 30, 1996 1.2:1
September 30, 1996 1.3:1
December 31, 1996 1.3:1
March 31, 1997 1.2:1
