Exhibit 10.34
WAIVER AND AMENDMENT NO. 1 TO CREDIT AGREEMENT
This WAIVER AND AMENDMENT NO. 1 TO CREDIT AGREEMENT ("Waiver and
Amendment") is dated as of October 25, 2005, and is entered into in favor of
XXXXXXX SERVICES, INC. (f/k/a XXXXXXX GRP, INC.) ("Borrower"), by the financial
institutions (together with their respective successors and assigns, "Lenders")
from time to time party to the Credit Agreement (as hereinafter defined),
MADISON CAPITAL FUNDING LLC, as Administrative Agent, Sole Lead Arranger, Joint
Bookrunner and a Lender ("Agent"), JPMORGAN CHASE BANK, N.A., as Joint
Bookrunner, Syndications Agent and a Lender ("Syndication Agent") and XXXXXXX
XXXXX CAPITAL, a division of Xxxxxxx Xxxxx Business Financial Services Inc., as
Documentation Agent and a Lender ("Documentation Agent").
W I T N E S S E T H:
WHEREAS, Borrower, Agent, Syndication Agent, Documentation Agent and
Lenders are parties to that certain Credit Agreement, dated as of August 2, 2004
(as amended, modified and supplemented from time to time, the "Credit
Agreement"; capitalized terms not otherwise defined herein have the definitions
provided therefore in the Credit Agreement);
WHEREAS, Borrower has informed Agent and Lenders that it is in breach
of Section 2.10.2(a)(iii) of the Credit Agreement as the Borrower has failed to
make its scheduled mandatory prepayment with respect to Excess Cash Flow for the
Fiscal Year ending December 31, 2004, which constitutes an Event of Default
under Section 8.1.1 of the Credit Agreement (the "Existing Event of Default");
and
WHEREAS, Borrower has requested that Agent and Lenders waive the
Existing Event of Default and agree to amend the Capital Expenditures covenant
as set forth herein;
NOW THEREFORE, in consideration of the mutual conditions and
agreements set forth in the Credit Agreement and this Waiver and Amendment, and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:
1. WAIVER. Subject to the satisfaction of the conditions set forth in
SECTION 3 below, Agent and Lenders hereby waive the Existing Event of Default
for the Fiscal Year ending December 31, 2004. This is a limited waiver and shall
not be deemed to constitute a waiver of any Event of Default (other than the
Existing Event of Default) or any future breach of the Credit Agreement or any
of the other Loan Documents or any other requirements of any provision of the
Credit Agreement or any other Loan Documents.
2. AMENDMENT. Subject to the conditions set forth in Section 3 below,
Section 7.14.4 is hereby amended and restated in its entirety, as follows:
"7.14.4. CAPITAL EXPENDITURES.
Not permit the aggregate amount of all Capital Expenditures made by
Borrower and the Subsidiaries in any Fiscal Year to exceed the applicable
amount set forth below for such Fiscal Year:
Capital
Fiscal Year Ending Expenditures
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December 31, 2005 $ 12,226,991
December 31, 2006 $ 13,000,000
December 31, 2007 $ 15,000,000
December 31, 2008 $ 17,000,000
December 31, 2009 $ 19,000,000
If Borrower does not utilize the entire amount of Capital Expenditures
permitted in any Fiscal Year, so long as no Default or Event of Default
exists or would be caused thereby, Borrower may carry forward to the
immediately succeeding Fiscal Year only, 50% of such unutilized amount
(with Capital Expenditures made by Borrower in such succeeding Fiscal Year
applied last to such unutilized amount)."
3. CONDITIONS TO EFFECTIVENESS. The effectiveness of this Waiver and
Amendment is subject to the following conditions precedent (unless specifically
waived in writing by Agent), each to be in form and substance satisfactory to
Agent:
(a) Agent shall have received a fully executed copy of this Waiver and
Amendment;
(b) All proceedings taken in connection with the transactions
contemplated by this Waiver and Amendment and all documents, instruments and
other legal matters incident thereto shall be reasonably satisfactory to Agent
and its legal counsel; and
(c) No Default or Event of Default shall have occurred and be
continuing (other than the Defaults or Events of Default specifically waived in
Section 1).
4. GOVERNING LAW. This Waiver and Amendment shall be a contract made
under and governed by the laws of the State of
Illinois, without regard to
conflict of laws principles. Whenever possible each provision of this Waiver and
Amendment shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Waiver and Amendment shall be
prohibited by or invalid under such law, such provision shall be ineffective to
the extent of such prohibition or invalidity, without invalidating the remainder
of such provision or the remaining provisions of this Waiver and Amendment.
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IN WITNESS WHEREOF, the parties hereto have caused this Waiver and
Amendment to be duly executed under seal and delivered by their respective duly
authorized officers on the date first written above.
MADISON CAPITAL FUNDING LLC, as
Administrative Agent, Sole Lead Arranger, Joint
Bookrunner and a Lender
By: /s/ Xxxxx X. Xxxx
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Title: Managing Director
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JPMORGAN CHASE BANK, N.A., as Joint
Bookrunner, Syndications Agent and a Lender
By: /s/ Xxxxx Xxxxxx
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Title: Vice President
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XXXXXXX XXXXX CAPITAL, a division of Xxxxxxx
Xxxxx Business Financial Services Inc., as
Documentation Agent and a Lender
By: /s/ Xxxxx Xxxxxxxx
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Title: Vice President
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XXXXXXX SERVICES, INC. (f/k/a XXXXXXX
GRP, INC.), as Borrower
By: /s/ Xxxxxxxxx X. Xxxxxx
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Title: Xxxxxxxxx X. Xxxxxx
Chief Financial Officer
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