Exhibit 10.42(E)
FIFTH AMENDMENT AGREEMENT
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AGREEMENT, dated October 4, 1995, to be effective as of September 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
or supplemented from time to time, the "Credit Agreement").
B. The Borrower has requested that the Lender extend the date on 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 that
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 Advances to the Borrower up to the maximum aggregate amount
outstanding $55,000,000. Notwithstanding the foregoing, the Maximum
Revolving Loan shall be reduced to $50,000,000 upon the sooner to occur of
(I) the Lender enters into a written agreement with a third party to
purchase a participation interest in the Revolving Loan, on terms and
conditions satisfactory to the Lender, (ii) the Borrower or the Parent
receives proceeds from an offering of its equity securities or the
placement of subordinated indebtedness, on terms and conditions
satisfactory to the Lender, and (iii) November 30, 1995.
2. "Fees" (a) In consideration of the Lender's extension of the date on
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which the Maximum Revolving Loan shall be reduced to $50,000,000, the Borrower
agrees to pay the following fees to the Lender:
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(i) $5,000 simultaneously with the extension and delivery of this
Agreement which shall be in consideration of the Lender's agreement to
extend such date through October 31, 1995; and
(ii) $10,000 if the Maximum Revolving Loan has not been reduced to
$50,000,000 (or less) on or before November 1, 1995; and
(iii) $5,000 if the Maximum Revolving Loan has not been reduced to
$50,000,000 (or less) on or before November 15, 1995; and
(iv) $7,000 if the Maximum Revolving Loan has not been reduced to
$50,000,000 (or less) on or before November 22, 1995.
(b) The Borrower agrees that the fees set forth under subsection (a) above
shall be deemed "Fees" under the Credit Agreement.
(c) The Borrower agrees that in no event shall the conditions to the
reduction of the Maximum Revolving Loan to $50,000,000 extend beyond November
30, 1995.
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 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
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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
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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.
[THIS SPACE INTENTIONALLY LEFT BLANK]
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The parties have executed this Agreement on the date first written above to
be effective as of September 30, 1995.
XXXXXX SERVICE GROUP, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
Its Senior Vice President
and Chief Financial Officer
XXXXXX INTERNATIONAL, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
Its Senior Vice President
and Chief Financial Officer
XXXXXX SERVICE GROUP CANADA, LTD.
By: /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
Its Senior Vice President
and Chief Financial Officer
GENERAL ELECTRIC CAPITAL
CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxxx
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Xxxxxx X. Xxxxxxxxx
Its Duly Authorized Signatory
