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Exhibit 10.35
CONSENT AND AMENDMENT PERTAINING TO
SUBORDINATED NOTE PURCHASE AGREEMENT
This CONSENT AND
AMENDMENT PERTAINING TO SUBORDINATED NOTE PURCHASE
AGREEMENT ("CONSENT") is dated as of
November 2, 2005, and is entered into by
and among CLAYTON SERVICES, INC., a
Delaware corporation formerly known as
Clayton GRP, Inc. ("BORROWER"), and TA
Subordinated Debt Fund, L.P., a Delaware
limited partnership ("TA DEBT FUND").
W I T N E S S E T H:
WHEREAS, Borrower and TA Debt Fund are parties to that certain
Subordinated Note Purchase Agreement, dated
as of August 2, 2004, by and among
Borrower and the Noteholders and Guarantors
named therein (as the same may be
from time to time amended, supplemented or
otherwise modified, the "AGREEMENT";
capitalized terms not otherwise defined
herein have the definitions provided
therefor in the Agreement);
WHEREAS, Borrower is in breach of Section 7.14.6 of the Agreement
as
Borrower has made Capital Expenditures in
excess of $5,000,000 during Fiscal
Year 2005, and such breach constitutes an
Event of Default under Section 8.1.4
of the Agreement (the "CAPITAL EXPENDITURE
EVENT OF DEFAULT");
WHEREAS, Borrower, Agent, and Senior Lenders are parties to the
Senior
Credit Agreement;
WHEREAS, Borrower is in breach of Section 7.14.4 of the Senior
Credit
Agreement as Borrower has made Capital
Expenditures in excess of $3,900,000
during Fiscal Year 2005, and such breach
constitutes an Event of Default under
Section 8.1.1 of the Senior Credit
Agreement (the "SENIOR CAPITAL EXPENDITURE
EVENT OF DEFAULT");
WHEREAS, Borrower is in breach of Section 2.10.2(a)(iii) of the
Senior
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, and such breach constitutes an
Event of Default under Section 8.1.1 of
the Senior Credit Agreement (the "SENIOR
PREPAYMENT EVENT OF DEFAULT");
WHEREAS, the occurrence of the Senior Capital Expenditure Event
of
Default and the Senior Prepayment Event of
Default each constitute an Event of
Default under Section 8.1.2 of the
Agreement (collectively, the "EXISTING SENIOR
EVENTS OF DEFAULT");
WHEREAS, Borrower has requested that Agent and Senior Lenders
waive
the Existing Senior Events of Default;
WHEREAS, Borrower has requested that TA Debt Fund waive the
Capital
Expenditure Event of Default and the
Existing Senior Events of Default
(collectively, the "EXISTING EVENTS OF
DEFAULT");
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WHEREAS, Borrower has requested that Agent and Senior Lenders
amend
and restate Section 7.14.4 of the Senior
Credit Agreement to increase the
Capital Expenditures limitation for each
Fiscal Year through December 31, 2009;
WHEREAS, Borrower has requested that TA Debt Fund amend and
restate
Section 7.14.6 of the Agreement to provide
a corresponding increase in the
Capital Expenditures limitation for each
Fiscal Year through December 31, 2009
so as to preserve any "cushion" between the
covenant levels contained in the
Senior Credit Agreement and the
Agreement;
WHEREAS, TA Debt Fund holds greater than fifty percent (50%) in
principal amount of all Notes currently
outstanding, thereby allowing TA Debt
Fund to consent to a waiver of an Event of
Default pursuant to Section 8.2 of
the Agreement and an amendment of the
Agreement pursuant to Section 9.2 thereof;
NOW THEREFORE, in consideration of the mutual conditions and
agreements set forth in the Agreement and
this Consent, and other good and
valuable consideration, the receipt and
sufficiency of which are hereby
acknowledged, the parties hereto hereby
agree as follows:
1. WAIVER. Subj
