EXHIBIT 10.39(g)
SEVENTH AMENDMENT AGREEMENT
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AGREEMENT, dated December 6, 1995, to be effective as of November 30, 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".
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B. The Borrower has requested that the Lender further extend the date by
which the Maximum Revolving Loan shall be reduced to $50,000,000.
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
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and the other Loan Documents shall remain in full force and effect except as
follows:
(a) Section 2.01 of the Credit Agreement is deleted and the following
is substituted therefor:
Section 2.01 Revolving Loan. (a) Upon and subject to the terms and
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conditions set forth in this Agreement, and relying on the
representations, warranties and covenants of the Borrower set forth in
this Agreement, until the Commitment Termination Date, the Lender
agrees to make the Advances to the Borrower against the Eligible
Accounts, the Eligible Pending Accounts Receivable and the Fixed
Contracts Account Receivable, for the Borrower's use and upon the
request of the Borrower, from time to time in the aggregate principal
amount which shall not exceed the lesser at such time of (X) the
Maximum Revolving Loan less the aggregate outstanding amount of the
Letters of Credit and (Y) the Borrowing Base less the sum of the
aggregate outstanding amount of the Letters of Credit and the
aggregate amount of the Reserves.
Notwithstanding the foregoing, the Borrower agrees to take all steps
to ensure that the Maximum Revolving Loan shall be reduced to amounts
not greater than those set forth below for the dates specified:
Date Maximum Revolving Loan
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December 1, 1995 $55,000,000
December 11, 1995 $54,000,000
December 18, 1995 $53,000,000
December 26, 1995 $52,000,000
January 2, 1996 $51,000,000
January 8, 1996 $50,000,000
(b) In addition to the foregoing, the Borrower agrees to reduce the
Maximum Revolving Loan to an amount not greater than $50,000,000 upon
receipt by the Borrower or the Parent of proceeds from an offering of
its equity securities or the placement of subordinated indebtedness on
terms and conditions satisfactory to the Lender.
(b) Section 3.17 of the Credit Agreement is deleted and the following is
substituted therefor:
3.17 Overadvance Fee. The Borrower agrees to pay to the Lender the
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Overadvance Fee for each calendar day that there exists an
Overadvance; notwithstanding the foregoing, the Borrower agrees that
in no event shall Overadvances exceed the amounts set forth below for
the dates specified:
Date Maximum Revolving Loan
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December 1, 1995 $2,000,000
December 11, 1995 $1,750,000
December 18, 1995 $1,500,000
December 26, 1995 $1,250,000
January 2, 1996 $1,000,000
January 8, 1996 $ 500,000
January 15, 1996 $ 0
(c) The definition of "Maximum Revolving Loan" contained in Schedule
"1.01" to the Credit Agreement is deleted and the following is substituted
therefor:
"Maximum Revolving Loan" shall mean the agreement of the Lender to make
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advances to the Borrower up to the maximum aggregate amount outstanding of
$55,000,000, subject to the terms and conditions of the Credit Agreement,
including, without limitation, Section 2.01 thereof.
(b) The definition of "Overadvance Fee" contained in Schedule "1.01"
to the Credit Agreement is deleted and the following is substituted therefor:
"Overadvance Fee" shall mean the amount of $3,000, which amount shall be
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due and payable for each Overadvance.
2. Fees. (a) In consideration of the Lender's extension of the date on
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which the Maximum Revolving Loan is to be reduced to $50,000,000, the Borrower
agrees to pay the following fees to the Lender:
(I) $20,000 simultaneously with the execution and delivery of
this Agreement;
(ii) $5,000 on January 2, 1996, if the Maximum Revolving Loan has
not been reduced to $50,000,000 (or less) on or before such date; and
(iii) $5,000 on January 8, 1996, if the Maximum Revolving Loan has
not been reduced to $50,000,000 (or less) on or before such date.
(b) The Borrower agrees that the fees set forth under subsection (a)
above shall be deemed "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 parties
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hereto.
(b) Other. Such other agreements and instruments as the Lender shall
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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
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Borrower represents that except as set forth in the Credit Agreement and the
First Amendment Agreement, ere 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 on the date first written above to
be effective as of November 30, 1995.
XXXXXX SERVICE GROUP, INC.
By /s/ Xxxxxxx X. Xxxxxxxxxx
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Xxxxxxx X. Xxxxxxxxxx
Its Vice President and Comptroller
XXXXXX INTERNATIONAL, INC.
By /s/ Xxxxxxx X. Xxxxxxxxxx
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Xxxxxxx X. Xxxxxxxxxx
Its Vice President and Comptroller
XXXXXX SERVICE GROUP CANADA,
LTD.
By /s/ Xxxxxxx X. Xxxxxxxxxx
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Xxxxxxx X. Xxxxxxxxxx
Its Assistant Secretary
GENERAL ELECTRIC CAPITAL
CORPORATION
By /s/ Xxxxxx X. Xxxxxxxxx
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Xxxxxx X. Xxxxxxxxx
Its Duly Authorized Signatory
