EXHIBIT 10.37 (a)
FIRST AMENDMENT AGREEMENT
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AGREEMENT, dated as of June 26, 1998, 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. The Borrower has requested that the Lender increase, from $15,000,000
to $25,000,000, the Acquisition Loan Commitment.
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 figure "$15,000,000" contained in the "Background" section of
the Credit Agreement is deleted and the figure "$25,000,000" is substituted
therefor.
(b) The third sentence of Section 2.1(b)(iv) of the Credit Agreement
is deleted and the following is substituted therefor:
The Borrower shall repay the principal amount of each Acquisition
Loan Advance in equal quarterly installments in the amount of
such Acquisition Loan Advance multiplied by a fraction, the
numerator of which shall be one (1) and the denominator of which
shall be twenty-eight (28), rounded upward to the nearest whole
Dollar and such payments shall commence on the first Business Day
of the first fiscal quarter after the date of such Acquisition
Loan Advance and shall continue on the first Business Day of each
succeeding Fiscal Quarter;
notwithstanding the foregoing, all amounts outstanding under each
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Acquisition Loan Advance shall be due and payable in full,
without notice or demand on the sooner to occur of (x) the
Acquisition Loan Commitment Termination Date and (y) the
occurrence of an Event of Default.
(c) Section 3.9(e) of the Credit Agreement is deleted and Section
3.9(f) of the Credit Agreement is renumbered accordingly.
(d) Section 6.2(d)(vii) of the Credit Agreement is deleted and
Sections 6.2(d)(ix), (x), (xi) and (xii) and renumbered accordingly.
(e) The figure "$180,000" contained in Section 6.2(x) of the Credit
Agreement is deleted and the figure "$250,000" is substituted therefor.
(f) The provision contained in Section 8.7 of the Credit Agreement
with respect to copies of notices to be sent to ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ is deleted
and the following is substituted therefor.
▇▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
Financial Centre
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Telephone: ▇▇▇.▇▇▇.▇▇▇▇
Facsimile: 203.462.7599
(g) The definition of "Acquisition Loan Commitment" contained in Annex
A to the Credit Agreement is deleted and the following is substituted therefor:
"Acquisition Loan Commitment" means the commitment of the
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Lender to make Acquisition Loan Advances in an aggregate
principal amount up to $25,000,000, as such amount may be
adjusted, if at all, from time to time in accordance with the
Agreement.
(h) The amount "$15,000,000" contained in the definition of
Acquisition Loan Note in Annex A to the Credit Agreement is deleted and the
amount "$25,000,000" is substituted therefor.
(i) The definition of "Drawdown Fee" contained in Annex A to the
Credit Agreement is deleted.
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(j) Subparagraph (ix) of the definition of "Eligible Accounts"
contained in Annex A to the Credit Agreement is deleted and the following is
substituted therefor:
(ix) it is the obligation of an Account Debtor located in a
foreign county;
2. Modification Fee. In consideration of the Lender's execution,
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delivery and performance of this Agreement, including, without limitation, the
increase of the Acquisition Loan Commitment, the Borrower is simultaneously
paying to the Lender the amount of $100,000 in immediately available funds (the
"Modification Fee").
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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;
(b) Allonge. The First Allonge to Acquisition Loan Note, duly
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drawn to the order of the Lender;
(c) Modification Fee. The payment to the Lender of the
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Modification fee; and
(d) 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.
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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 reaffirms the liens,
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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.
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The parties have executed this Agreement as of the date first above
written.
Borrower:
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▇▇▇▇▇▇ SERVICE GROUP, INC.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: SeniorVice President - Finance
Parent:
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▇▇▇▇▇▇ INTERNATIONAL, INC.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Senior Vice President - Finance
Subsidiaries:
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▇▇▇▇▇▇ TECHNOLOGY SOLUTIONS, INC.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Senior Vice President and Chief
Financial Officer
▇▇▇▇▇▇ TELECOM, INC.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Senior Vice President and Chief
Financial Officer
▇▇▇▇▇▇ SERVICES, INC.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Senior Vice President and Chief
Financial Officer
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▇▇▇▇▇▇ UTILITY SERVICE, INC.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Senior Vice President and Chief
Financial Officer
Lender:
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GENERAL ELECTRIC CAPITAL CORPORATION
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Duly Authorized Signatory
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