EXHIBIT 10.38(j)
TENTH AMENDMENT AGREEMENT
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AGREEMENT, dated as of June 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
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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 extend the Commitment
Termination Date and that the Lender allow it to advance up to $2,000,000 to
Xxxxxx UK.
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
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Agreement and the other Loan Documents shall remain in full force and effect
except as follows:
(a) The following is added as Section 6.02(e)(iii) to the Credit
Agreement.
(iii)(A) Notwithstanding the provision of subsection (k) above,
for the period commencing May 21, 1996, and extending through December
31, 1996, the borrower shall have the right to make advances, loans or
extension of credit to Xxxxxx UK in the maximum aggregate outstanding
amount of $2,000,000 (the "UK Loan"). In consideration of the
Lender's agreement to the Borrower's extension of the UK Loan, the
Borrower agrees to pay the following amounts (the "UK Loan Extension
Fees") to the Lender on the dates specified unless on or prior to the
date specified for payment, Xxxxxx UK has satisfied all indebtedness
outstanding under the UK Loan:
(1) $30,000 on June 1, 1996;
(2) $15,000 on October 31, 1996, provided that a balance of
this loan remains outstanding on this date;
(3) One percent (1.00%) of the amount then outstanding
under the UK Loan on November 30, 1996; and
(4) The lesser of (x) two percent (2.00%) of the amount
then outstanding under the UK Loan (y) $50,000 on
December 31, 1996.
(B) The Borrower agrees that the UK Loan Extension Fees shall be
deemed "Fees under the Credit Agreement".
(a) The definition of "Commitment Termination Date" contained in
Schedule "1.01" to the Credit Agreement is deleted and the following
is substituted therefor:
"Commitment Termination Date" means the earliest to occur of (I)
July 1, 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) The reference to "Xxxxxx Corporation" in the definition of
"Extended Accounts" contained in Schedule "1.01" to the Credit
Agreement is deleted and the name "Day & Xxxxxxxxx, Inc." is
substituted therefor.
2. Conditions Precedent. The Lender's obligations under this
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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
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hereto.
(b) Other. Such other agreements and instruments as the Lender
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shall require.
3. Reaffirmation by Borrower. The Borrower acknowledges and agrees,
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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
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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
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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
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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
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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.
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The parties have executed this Agreement as of April 30, 1996.
XXXXXX SERVICE GROUP, INC.
By /s/ Xxxxxxx X. Xxxxxxxxxx
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Xxxxxxx X. Xxxxxxxxxx
Title: Senior Vice President - Finance
XXXXXX INTERNATIONAL, INC.
By /s/ Xxxxxxx X. Xxxxxxxxxx
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Xxxxxxx X. Xxxxxxxxxx
Title: Senior Vice President - Finance
XXXXXX SERVICE GROUP CANADA, LTD.
By /s/ Xxxxxxx X. Xxxxxxxxxx
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Xxxxxxx X. Xxxxxxxxxx
Title: Senior Vice President - Finance
GENERAL ELECTRIC CAPITAL CORPORATION
By /s/ Xxxxxx X. Xxxxxxxxx
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Xxxxxx X. Xxxxxxxxx
Title: Duly Authorized Signatory
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