In consideration of the limited agreement of the Agent and the Lenders to continue to forbear from the exercise of their rights and remedies as set forth above, each Credit Party hereby represents and warrants to the Agent and the Lenders as of the date hereof as follows:
4. Each Credit Party further acknowledges and agrees that: (i) the Specified Events of Default have occurred or will occur and continue, and shall not be deemed to have been waived, cured or eliminated, in whole or in part, by this Amendment, and the Agent and the Lenders expressly reserve rights with respect to the Specified Events of Default, subject only to the terms in the Credit Agreement, the other Loan Documents and this Agreement; (ii) the parties have not entered into a mutual disregard of the terms and provisions of the Credit Agreement and the other Loan Documents, or engaged in any course of dealing in variance with the terms and provisions of the Credit Agreement and the Loan Documents, within the meaning of any applicable law of the State of New York, or otherwise; and (iii) as of the Commitment Termination Date, principal in the amount set forth on Schedule A attached hereto, plus accrued interest was due and owing, by the Borrower under the Credit Agreement and guaranteed by the Guarantors under the Guaranties.
5. Each Credit Party expressly acknowledges and agrees that the Credit Agreement and other Loan Documents are valid and enforceable by the Agent and the Lenders and expressly reaffirms its obligations under the Credit Agreement and other Loan Documents (including the Guaranties). Each Credit Party agrees that it shall not dispute the validity or enforceability of the Credit Agreement and other Loan Documents (including the Guaranties) or any of its obligations thereunder, or the validity, priority, enforceability or extent of the Agent on behalf of the Lenders’ security interest in or lien against any item of Collateral under the Credit Agreement and other Loan Documents.
6. As further consideration to induce the Agent and the Lenders to execute, deliver and perform this Amendment, each Credit Party represents and warrants that there are no claims, causes of action, suits, debts, obligations, liabilities, defenses, counterclaims, demands of any kind, character or nature whatsoever, fixed or contingent, which such Credit Party may have, or claim to have, against the Lenders or the Agent in connection with the Credit Agreement and Loan Documents, and such Credit Party hereby releases, acquits and forever discharges the Agent and each Lender and its respective agents, employees, officers, directors, servants, representatives, attorneys, affiliates, successors and assigns (collectively, the “Released Parties”) from any and all liabilities, claims, suits, debts, causes of action and the like of any kind, character or nature whatsoever, known or unknown, fixed or contingent, in connection with the Credit Agreement and Loan Documents, that the Credit Party may have, or claim to have, against each of the such Released Parties from the beginning of time until and through the dates of execution and delivery of this Agreement.
Notwithstanding Section C.2. of the Agreement, as of the date hereof, Agent shall not refund to Borrower, but shall fully retain for the ratable benefit of the Lenders, $25,000 of the Forbearance Fee. Furthermore, if the closing of the transactions contemplated by the Third Amended and Restated Credit Agreement, by and among the Borrower, the other Credit Parties signatory thereto, Agent and the other Lenders signatory thereto from time to time, does not occur on or before August 23, 2007, Agent shall not refund to Borrower, but shall fully retain for the ratable benefit of the Lenders, an additional $25,000 of the Forbearance Fee at such time.
Agent and Lenders shall maintain full discretion to fully retain the remaining $150,000 of the Forbearance Fee if the Borrower fails to pay in full in cash all then outstanding Obligations (including, without limitation, cash collateralizing all outstanding Letters of Credit in accordance with the terms of Section 1.2 and Annex B, clause (c) of the Credit Agreement) on or before the expiration of the Forbearance Period, together with all interest, fees, expenses, attorneys fees and other charges hereafter accruing through the date of payment, under the Loan Documents.
1. This Amendment, taken together with the Agreement, the First Amendment, the Second Amendment, the Credit Agreement and all of the other Loan Documents, embodies the entire agreement and understanding among the parties hereto, and such Amendment may not be further amended or modified and the Amended Forbearance Period further extended unless agreed to in writing executed by all parties signatory to this Amendment or as may otherwise be provided for under the terms of the Credit Agreement and the other Loan Documents. This Amendment shall constitute a Loan Document for all purposes under the Credit Agreement.
2. This Amendment, and any further amendments, waivers, consents or supplements hereto may be executed in multiple counterparts, each of which when so executed and delivered shall be deemed an original, but all such counterparts together shall constitute but one and the same instrument. Delivery of an executed counterpart of this Amendment by telefacsimile shall be equally as effective as delivery of an original executed counterpart of the Amendment.
3. THIS AGREEMENT AND THE TRANSACTIONS EVIDENCED HEREBY SHALL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
| 4. | Time is of the essence for performing all matters set forth in this Amendment. |
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AGENTS AND LENDERS: | GENERAL ELECTRIC CAPITAL CORPORATION, as Agent and a Lender By: /s/ James Kaufman Duly Authorized Signatory |
AS BORROWER: BUTLER SERVICE GROUP, INC. By: /s/ Mark Koscinski Name: Mark Koscinski Title: VP and Controller | |
AS GUARANTORS: | |
BUTLER INTERNATIONAL, INC. BUTLER SERVICES INTERNATIONAL, INC. BUTLER TELECOM, INC. BUTLER SERVICES, INC. BUTLER UTILITY SERVICE, INC. By: /s/ Mark Koscinski Name: Mark Koscinski Title: VP and Controller | |
SCHEDULE A
As of July 31, 2007, the principal balance due and owing of the Revolving Loan was $35,448,730, the aggregate outstanding Letter of Credit Obligations was $3,645,844, the principal balance due and owing of the Term Loan A was $0 and the principal balance due and owing of the Term Loan B was $14,000,000.
