EXHIBIT 10.38(f)
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SIXTH AMENDMENT AGREEMENT
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AGREEMENT, dated as of November 17, 1999, 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.
Backround
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A0. 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").
B0. Borrower, through its wholly-owned subsidiary, ▇▇▇▇▇▇ Telecom, Inc.
("Telecom"), indirectly made the following Permitted Acquisition (the "ISL
Acquisition"): Pursuant to the Asset Purchase Agreement (the "ISL Purchase
Agreement") dated as of July 26, 1998, among Telecom, ISL International, Inc.
("ISL"), and ▇▇▇▇▇▇ ▇▇▇▇ ("▇▇. ▇▇▇▇"), Telecom purchased certain assets used in
ISL's business. Pursuant to the Employment Agreement dated August 3, 1998,
between Telecom and ▇▇. ▇▇▇▇ (the "Haft Employment Agreement"), Telecom agreed
to employ ▇▇. ▇▇▇▇ as Vice President of ▇▇▇▇▇▇ Technology Solutions, Inc. Under
the terms of the ISL Purchase Agreement, ISL and ▇▇. ▇▇▇▇ agreed to refrain from
certain activities and Telecom agreed to pay certain amounts based on the future
performance of the acquired assets of ISL, as more fully set forth in the ISL
Purchase Agreement. Pursuant to the ISL Settlement Agreement dated October 25,
1999 among ▇▇. ▇▇▇▇, ISL and Telecom (the "ISL Settlement Agreement"), the
parties agreed to terminate the employment relationship evidenced by the Haft
Employment Agreement and accelerate certain payments and extinguish certain
obligations under the ISL Purchase Agreement and Telecom agreed to pay to ISL
the amount of $4,500,000 (payable 75% in cash and 25% in the form of common
stock of Parent) (the "ISL Settlement Amount"), all as more fully set forth in
the ISL Settlement Agreement.
C0. The Borrower has requested that the Lender consent to payment of the
ISL Settlement Amount and allow the ISL Settlement Amount to be included within
the amount of the Acquisition Loan Advance made by Lender to Borrower in
connection with the ISL Acquisition and modify the amortization schedule of the
Acquisition Loan Advance made in connection with the ISL Acquisition to include
the ISL Settlement Amount.
D0. The Lender has agreed to the Borrower's request subject to the terms
and conditions of this Agreement.
Agreement
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 contained in
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the Credit Agreement and the other Loan Documents, the Lender hereby (a )
consents to the payment by the Borrower (or Telecom) of the ISL Settlement
Amount as set forth in the ISL Settlement Agreement, (b ) agrees that the ISL
Settlement Amount shall be added to the amount of the Acquisition Loan Advance
extended by the Lender in connection with the ISL 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 ISL
Settlement Amount as follows:
Payment Date Amount
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(i) The first day of each Fiscal Quarter commencing $ 372,144
January 1, 2000, through and including ▇▇▇▇▇ ▇,
▇▇▇▇
(▇▇) July 1, 2002 $5,852,844
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2 . Acknowledgment of Debt. The Borrower acknowledges that after giving
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effect to the payment of the ISL Settlement Amount, the balance of the
Acquisition Loan Advance in respect of the ISL Acquisition is, as of the date of
this Agreement, $9,574,284 and the Borrower agrees to repay the outstanding
principal amount of such Acquisition Loan Advance in accordance with Section 1
above.
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; and
(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 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 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 Obligations, as modified
herein.
6 . Reaffirmation of Collateral. The Borrower and each of the Guarantors
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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 and
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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 acknowledges
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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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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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
▇▇▇▇▇▇ 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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