Exhibit 10.38(g)
SEVENTH AMENDMENT AGREEMENT
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AGREEMENT, dated as of July 14, 2000, among ▇▇▇▇▇▇ SERVICE GROUP, INC., a
New Jersey corporation, ▇▇▇▇▇▇ INTERNATIONAL, INC., a Maryland corporation, the
"Subsidiaries" signatory hereto, 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 Amended and Restated Credit Agreement dated as of
November 7, 1997, between ▇▇▇▇▇▇ 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. Borrower, through its wholly-owned subsidiary, ▇▇▇▇▇▇ Telecom, Inc.
("Telecom"), indirectly made the following Permitted Acquisition (the "Adriatic
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Acquisition"):
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Pursuant to the Asset Purchase Agreement (the "Adriatic Purchase
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Agreement") dated as of February 28, 1998, among Telecom, Argos Adriatic
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Corporation ("Adriatic"), ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ("▇▇. ▇▇▇▇▇▇▇▇") and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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("▇▇. ▇▇▇▇▇▇▇▇"), Telecom purchased certain assets used in Adriatic's business.
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Pursuant to the separate Employment Agreements dated as of February 28, 1998,
between Telecom and each of ▇▇. ▇▇▇▇▇▇▇▇ (the "▇▇▇▇▇▇▇▇ Employment Agreement")
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and ▇▇. ▇▇▇▇▇▇▇▇ (the "▇▇▇▇▇▇▇▇ Employment Agreement"), Telecom agreed to employ
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Messrs. ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ in ▇▇▇▇▇▇ Technology Solutions, a division of
Telecom. Under the terms of the Adriatic Purchase Agreement, Adriatic and
Messrs. ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ agreed to refrain from certain activities and
Telecom agreed to pay certain amounts based on the future performance of the
acquired assets of Adriatic, as more fully set forth in the Adriatic Purchase
Agreement. Pursuant to the Settlement Agreement dated March 31, 1999, among
Adriatic, ▇▇. ▇▇▇▇▇▇▇▇ and ▇▇. ▇▇▇▇▇▇▇▇, as modified by the Agreement dated May
1999 (and executed on July 14, 1999), as further modified by the Separation
Agreement dated January 24, 2000 (the "Adriatic Settlement Agreement"), the
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parties agreed to terminate the employment relationship evidenced by the
▇▇▇▇▇▇▇▇ Employment Agreement and the ▇▇▇▇▇▇▇▇ Employment Agreement and
accelerate certain payments and extinguish certain obligations under the
Adriatic Purchase Agreement and Telecom agreed to pay to Adriatic which, in
retrospect, was the amount of $________ (the "Adriatic Settlement Amount"), and
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Adriatic assigned to ▇▇. ▇▇▇▇▇▇▇▇ its rights to receive such amount, all as more
fully set forth in the Adriatic Settlement Agreement.
C. The Borrower has requested that the Lender consent to payment of the
Adriatic Settlement Amount and allow the Adriatic Settlement Amount to be
included within the amount of the Acquisition Loan Advance made by Lender to
Borrower in connection with the Adriatic Acquisition and modify the amortization
schedule of the Acquisition Loan Advance made in connection with the Adriatic
Acquisition to include the Adriatic Settlement Amount.
D. 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. Notwithstanding anything to the contrary
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contained in the Credit Agreement and the other Loan Documents, the Lender
hereby
(a) consents to the payment by the Borrower (or Telecom) of the Adriatic
Settlement Amount as set forth in the Adriatic Settlement Agreement, (b) agrees
that the Adriatic Settlement Amount shall be added to the amount of the
Acquisition Loan Advance extended by the Lender in connection with the Adriatic
Acquisition, and (c) agrees that the Borrower shall, subsequent to the date
hereof, repay the principal amount of such Acquisition Loan Advance, as
increased by the amount of the Adriatic Settlement Amount as follows:
Payment Date Amount
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(i) The first day of each Fiscal Quarter
commencing October 1, 2000, through
and including April 1, 2002 $ 215,168
(ii) July 1, 2002 $2,687,354
2. Acknowledgment of Debt. The Borrower acknowledges that after
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giving effect to the payment of the Adriatic Settlement Amount, the balance of
the Acquisition Loan Advance in respect of the Adriatic Acquisition is, as of
the date of this Agreement, $4,193,529 and the Borrower agrees to repay the
outstanding principal amount of such Acquisition Loan Advance in accordance with
Section 1 above.
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3. 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 the
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parties hereto; and
(b) Other. Such other agreements and instruments as the Lender
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shall require.
4. 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 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
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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 Obligations, as
modified herein.
6. Reaffirmation of Collateral. The Borrower and each of the
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Guarantors 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
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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
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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 above
written.
Borrower:
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▇▇▇▇▇▇ SERVICE GROUP, INC.
By___________________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Senior Vice President - Finance
Parent:
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▇▇▇▇▇▇ INTERNATIONAL, INC.
By___________________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Senior Vice President - Finance
Subsidiaries:
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▇▇▇▇▇▇ TECHNOLOGY SOLUTIONS, INC.
By___________________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Senior Vice President and Chief
Financial Officer
▇▇▇▇▇▇ TELECOM, INC.
By___________________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Senior Vice President and Chief
Financial Officer
▇▇▇▇▇▇ SERVICES, INC.
By___________________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Senior Vice President and Chief
Financial Officer
▇▇▇▇▇▇ UTILITY SERVICE, INC.
By___________________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Senior Vice President and Chief
Financial Officer
Lender:
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GENERAL ELECTRIC CAPITAL CORPORATION
By___________________________________________
Name:
Title: Duly Authorized Signatory
