Exhibit 10.6
AMENDED AND RESTATED SECURITY AGREEMENT
THIS AMENDED AND RESTATED SECURITY AGREEMENT ("AGREEMENT") dated July
2, 2003, is made and entered into on the terms and conditions hereinafter set
forth, by and between GUIDELINE RESEARCH CORP., a New York corporation ("GRC"),
TABLINE DATA SERVICES, INC., a New York corporation ("TDS"), GUIDELINE/CHICAGO,
INC., an Illinois corporation ("GCI"), ADVANCED ANALYTICS, INC., a New York
corporation ("AAI"), GUIDELINE CONSULTING CORP., a New York corporation ("GCC";
GRC, TDS, GCI and AAI are sometimes collectively referred to herein as the
"ORIGINAL GUARANTORS"), and TTECH ACQUISITION CORP., a Delaware corporation
("TTC"; the Original Guarantors and TTC are sometimes collectively referred to
herein as the "GUARANTORS"), and PETRA MEZZANINE FUND, L.P., a Delaware limited
partnership ("LENDER").
RECITALS:
1. The Original Guarantors and Lender entered into that certain
Security Agreement dated April 1, 2003 (the "ORIGINAL SECURITY AGREEMENT") to
secure their obligations pursuant to that certain Guaranty Agreement dated April
1, 2003, by and among the Original Guarantors and Lender (the "ORIGINAL
GUARANTY"), and the obligations of FIND/SVP, Inc., a New York corporation
("BORROWER"), pursuant to that certain Loan Agreement dated April 1, 2003, by
and between Borrower and Lender (the "ORIGINAL LOAN AGREEMENT"), pursuant to
which Lender has made a loan to Borrower in the original principal amount of
$3,000,000 (the "ORIGINAL LOAN").
2. Pursuant to the request of Borrower, Borrower and Lender have
entered into that certain Amended and Restated Loan Agreement of even date
herewith (together with any and all amendments, modifications, supplements,
extensions, renewals, substitutions and/or replacements thereof, herein referred
to as the "LOAN AGREEMENT"; capitalized terms used but not otherwise defined
herein shall have the same meanings as in the Loan Agreement), pursuant to which
Lender has agreed to make an additional loan to Borrower in the original
principal amount of $500,000 (the "ADDITIONAL LOAN"; the Original Loan and the
Additional Loan are hereinafter referred to individually and collectively as the
"LOAN").
3. The Original Loan is evidenced by that certain Promissory Note dated
April 1, 2003 in the amount of $3,000,000, made and executed by Borrower,
payable to the order of Lender (the "ORIGINAL NOTE"), and the Additional Loan is
evidenced by that certain Promissory Note of even date with the Loan Agreement
in the amount of $500,000 (the "ADDITIONAL NOTE"; the Original Note and the
Additional Note are sometimes hereinafter individually and collectively,
together with any and all amendments, modifications, supplements, extensions,
renewals, substitutions and/or replacements thereof, referred to as the "NOTE").
4. As a condition to the making of the Additional Loan, Lender has
required that TTC, a Subsidiary of Borrower, and the Original Guarantors enter
into that certain Amended and Restated Guaranty Agreement of even date herewith
(the "GUARANTY") and grant to Lender a
security interest in certain collateral more particularly described below, which
Guarantors have agreed to do as hereinafter set forth.
AGREEMENTS:
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. GRANT OF SECURITY INTEREST. Guarantors hereby grant to Lender a
security interest in the following described property and any and all proceeds
and products thereof and accessions thereto (collectively the "COLLATERAL"):
(a) EQUIPMENT. All equipment of Guarantors of any kind and
description, whether now owned or hereafter acquired and wherever
located, together with all parts, accessories and attachments and all
replacements thereof and additions thereto;
(b) INVENTORY, ACCOUNTS, CONTRACT RIGHTS, CHATTEL PAPER AND
GENERAL INTANGIBLES. All of Guarantors' inventory, whether held for
lease or sale, or furnished or to be furnished under contracts of
service, and any agreements for lease of same and rentals therefrom,
and all of Guarantors' accounts, accounts receivable, contract rights,
chattel paper and general intangibles, whether now in existence or
owned or hereafter arising or acquired, entered into or created, and
wherever located;
(c) INVESTMENT PROPERTY. All of Guarantors' investment
property, whether now in existence or owned or hereafter arising or
acquired, entered into or created, and wherever located;
(d) TRADEMARKS, ETC. All trademarks and service marks now held
or hereafter acquired by Guarantors, both those that are registered
with the United States Patent and Trademark Office and any unregistered
marks used by Guarantors in the United States, and trade dress,
including logos and designs, in connection with which any such marks
are used, together with all registrations regarding such marks and the
rights to renewals thereof, and the goodwill of the business of
Guarantors symbolized by such marks;
(e) COPYRIGHTS. All copyrights now held or hereafter acquired
by Guarantors and any applications for U.S. copyrights hereafter made
by Guarantors; and
(f) PROPRIETARY INFORMATION, COMPUTER DATA, ETC. All
proprietary information and trade secrets of Guarantors with respect to
Guarantors' business and all of Guarantors' computer programs and the
information contained therein and all intellectual property rights with
respect thereto.
2. SECURED INDEBTEDNESS. This Agreement secures the full and prompt
payment and performance of (a) the indebtedness and other obligations of
Borrower and Guarantors to Lender
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pursuant to the Loan Agreement, the Note and the other Loan Documents, (b) the
obligations of Guarantors pursuant to the Guaranty, (c) any and all other
indebtedness and other obligations of Borrower or Guarantors to Lender, direct
or contingent (including but not limited to obligations incurred as indorser,
guarantor or surety), however evidenced or denominated, and however and whenever
incurred, including but not limited to indebtedness incurred pursuant to any
present or future commitment of Lender to Borrower or Guarantors, and (d) all
future advances made by Lender for taxes, levies, insurance and preservation of
the Collateral and all attorney's fees, court costs and expenses of whatever
kind incident to the collection of any of said indebtedness or other obligations
and the enforcement and protection of the security interest created hereby.
3. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF GUARANTORS. Guarantors
represent, warrant and agree as follows:
(a) The location of Guarantors' chief executive offices and
other places of business, and the locations of all tangible Collateral
and of all records concerning the Collateral, are identified on
attached SCHEDULE 3(a). Except as set forth on SCHEDULE 3(a), during
the five (5) years preceding the date of this Agreement, Guarantors
have not had any other place of business or location of assets.
Guarantors will promptly notify Lender, in writing, of any new place or
places of business and of any change in the location of the Collateral
or any records pertaining thereto.
(b) Guarantors are the owners of the Collateral free and clear
of any Liens other than Permitted Liens. Guarantors will defend the
Collateral against the claims and demands of all persons other than
those in respect of Permitted Liens.
(c) Guarantors will at all times keep the Collateral insured
against all reasonably insurable hazards in amounts equal to the full
insurable value of the Collateral. Such insurance shall be in such
companies as are reasonably acceptable to Lender, with provisions
reasonably satisfactory to Lender for payment of all losses thereunder
to Lender as its interests appear. If required by Lender, Guarantors
shall deposit the policies (or duplicate originals of such policies)
with Lender. Any money received by Lender under said policies may be
applied to the payment of any indebtedness or obligation secured
hereby, if then due and payable; or at Lender's option may be delivered
by Lender to Guarantors for the purpose of repairing or restoring the
Collateral. Upon an Event of Default, Guarantors shall assign to Lender
all right to receive proceeds of insurance not exceeding the amounts
secured hereby, shall direct any insurer to pay all proceeds directly
to Lender, and shall appoint Lender Guarantors' attorney in fact to
endorse any draft or check made payable to Guarantors in order to
collect the benefits of such insurance. If Guarantors fail to keep the
Collateral insured as required by Lender, Lender shall have the right
to obtain such insurance at Guarantors' expense and add the cost
thereof to the other amounts secured hereby.
(d) Guarantors shall, and shall cause each of their
Subsidiaries to, at their sole cost and expense, execute and deliver to
Lender all such further documents, instruments and agreements and
perform all such other acts that reasonably may be required in the
opinion of Lender to enable Lender to exercise and enforce its rights
as the secured party
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under this Agreement and the other Security Documents and to carry out the
provisions or effectuate the purposes of this Agreement and the other Security
Documents. To the extent permitted by applicable law, Guarantors hereby
authorize Lender to file financing statements and continuation statements with
respect to the security interests granted or assigned under this Agreement and
the other Security Documents, to execute such financing statements and
continuation statements on behalf of the Guarantors and their Subsidiaries and
to do all other things it deems appropriate to perfect and continue perfection
of the security interests created hereby and to protect the Collateral. Lender
shall furnish to Guarantors copies of all such financing statements and
continuation statements filed by Lender pursuant to this SUBSECTION 3(d).
4. SPECIAL AGREEMENTS WITH RESPECT TO TANGIBLE COLLATERAL. Guarantors
additionally agree and warrant as follows:
(a) Guarantors will not permit any of the Collateral to be
removed from the location(s) specified herein, except for temporary
periods in the normal and customary use thereof, without the prior
written consent of Lender, and will permit Lender to inspect the
Collateral at any time which, in the absence of a Default or an Event
of Default, shall be during normal business hours upon reasonable prior
written notice.
(b) If any of the Collateral is equipment or goods of a type
normally used in more than one jurisdiction (regardless of whether
actually so used), Guarantors will contemporaneously with the execution
and delivery of this Agreement furnish to Lender a list of the
jurisdictions wherein such equipment or goods are or will be used, and
hereafter will notify Lender promptly in writing (1) of any other
jurisdictions in which such equipment or goods are so used, and (2) of
any change in the location of Guarantors' chief executive offices.
(c) Except as permitted by the Loan Agreement, Guarantors will
not sell, exchange, lease or otherwise dispose of any of the Collateral
or any interest therein without the prior written consent of Lender.
(d) Guarantors will keep the Collateral in good condition and
repair (reasonable wear and tear excepted) and will pay and discharge
all taxes, levies and other impositions levied thereon as well as the
cost of repairs to or maintenance of same, and will not permit anything
to be done that may impair the value of any of the Collateral in any
material respect. If Guarantors fail to pay such sums, Lender may do so
for Guarantors' account and add the amount thereof to the other amounts
secured hereby.
(e) Prior to the occurrence of an Event of Default, Guarantors
shall be entitled to possession of the Collateral and to use the same
in any lawful manner, provided that such use does not cause excessive
wear and tear to the Collateral, cause it to decline in value at an
excessive rate, or violate the terms of any policy of insurance
thereon.
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(f) Guarantors will not allow the Collateral to be attached to
real estate in such manner as to become a fixture or a part of any real
estate, except to the extent currently attached to real estate as of
the date hereof.
5. SPECIAL AGREEMENTS WITH RESPECT TO INTANGIBLE AND CERTAIN TANGIBLE
COLLATERAL. Guarantors additionally warrant and agree as follows:
(a) Prior to the occurrence of an Event of Default, Guarantors
shall have the right to process and sell their inventory in the regular
course of business. Lender's security interest hereunder shall attach
to all proceeds of all sales or other dispositions of the Collateral.
If at any time any such proceeds shall be represented by any
instruments, chattel paper or documents of title, then such
instruments, chattel paper or documents of title shall be promptly
delivered to Lender and subject to the security interest granted
hereby. If at any time any of Guarantors' inventory is represented by
any document of title, such document of title will be delivered
promptly to Lender and subject to the security interest granted hereby.
(b) By the execution of this Agreement, Lender shall not be
obligated to do or perform any of the acts or things provided in any
contracts covered hereby that are to be done or performed by
Guarantors, but upon the occurrence and during the continuance of an
Event of Default, Lender may, at its election, perform some or all of
the obligations provided in said contracts to be performed by
Guarantors, and if Lender incurs any liability or expenses by reason
thereof, the same shall be payable by Guarantors upon demand and shall
also be secured by this Agreement.
(c) Upon the occurrence and during the continuance of an Event
of Default, Lender shall have the right to notify the account debtors
obligated on any or all of Guarantors' accounts to make payment thereof
directly to Lender, and to take control of all proceeds of any such
accounts. Until such time as Lender elects to exercise such right by
notice to Guarantors, Guarantors are authorized, as agents of the
Lender, to collect and enforce said accounts.
6. PROTECTION OF COLLATERAL. Except for Permitted Liens, Guarantors
will not permit any liens or security interests other than those created by this
Agreement to attach to any of the Collateral, nor permit any of the Collateral
to be levied upon under any legal process, nor permit anything to be done that
may impair the security intended to be afforded by this Agreement, nor permit
any tangible Collateral to become attached to or commingled with other goods
without the prior written consent of Lender.
7. INSPECTION AND VERIFICATION OF COLLATERAL. Lender shall have the
right, at any time, by its own auditors, accountants or other agents, to examine
or audit any of the books and records of Guarantors, or the Collateral (which,
in the absence of a Default or an Event of Default, shall be during normal
business hours), all of which will be made available upon prior written request.
Such auditors, accountants or other representatives of Lender will be permitted
to make any verification of the existence of the Collateral or accuracy of the
records that Lender deems reasonably necessary or proper. Any reasonable
expenses incurred by Lender in making
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such examination, inspection, verification or audit shall be paid by Guarantors
promptly on demand and shall be secured by the security interest granted hereby,
provided that if no Event of Default has occurred or is continuing, Guarantors'
obligation to pay such expenses shall be limited to two inspections per calendar
year.
8. DEFAULT AND REMEDIES. Upon the occurrence of an Event of Default,
Lender may proceed to exercise any and all rights and remedies provided by the
New York Uniform Commercial Code or other applicable law, as well as all other
rights and remedies possessed by Lender, all of which shall be cumulative. Upon
the occurrence of an Event of Default, and upon demand by Lender, Guarantors
shall assemble the Collateral and make it available to Lender at a place
reasonably convenient to Lender and Guarantors. Any notice of sale, lease or
other intended disposition of the Collateral by Lender sent to Guarantors at the
address set forth in the Loan Agreement, or at such other address of Guarantors
as may be shown on Lender's records, at least ten (10) days prior to such
action, shall constitute reasonable notice to Guarantors.
Lender may waive any default before or after the same has been declared
without impairing its right to declare a subsequent default hereunder, this
right being a continuing one.
9. POWER OF ATTORNEY. Guarantors hereby constitute the Lender or its
designee, as Guarantors' attorney-in-fact with power, upon the occurrence and
during the continuance of an Event of Default, to endorse Guarantors' name upon
any notes, acceptances, checks, drafts, money orders or other evidences of
payment or Collateral that may come into either their or the Lender's
possession; to sign the name of Guarantors on any invoice or xxxx of lading
relating to any of the accounts receivable, drafts against customers,
assignments and verifications of accounts receivable and notices to customers;
to send verifications of accounts receivable; to notify the Post Office
authorities to change the address for delivery of mail addressed to Guarantors
to such address as the Lender may designate; to execute any of the documents
referred to in subsection 3(d) hereof in order to perfect and/or maintain the
security interests and liens granted herein by Guarantors to the Lender; and to
do all other acts and things necessary to carry out this Security Agreement. All
acts of said attorney or designee are hereby ratified and approved, and said
attorney or designee shall not be liable for any acts of commission or omission
(other than acts of gross negligence or willful misconduct), nor for any error
of judgment or mistake of fact or law. This power, being coupled with an
interest, is irrevocable until all of the indebtedness and other obligations
secured hereby have been fully paid or performed.
10. NOTICES. Any and all notices, elections or demands permitted or
required to be made under this Agreement shall be given as provided in the Loan
Agreement.
11. SEVERABILITY. If any provision(s) of this Agreement or the
application thereof to any person or circumstance shall be invalid or
unenforceable to any extent, the remainder of this Agreement and the application
of such provisions to other persons or circumstances shall not be affected
thereby and shall be enforced to the greatest extent permitted by law.
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12. BINDING EFFECT. This Agreement shall inure to the benefit of
Lender's successors and assigns and shall bind Guarantors' heirs,
representatives, successors and assigns. Guarantors' obligations hereunder shall
be joint and several.
13. TERMINATION STATEMENT. Guarantors agree that, notwithstanding the
payment in full of all indebtedness secured hereby and whether or not there is
any outstanding obligation of Lender to make future advances, Lender shall not
be required to send Guarantors a termination statement with respect to any
financing statement filed to perfect Lender's security interest(s) in any of the
Collateral, unless and until Guarantors shall have made written demand therefor.
Upon receipt of proper written demand, Lender may at its option, in lieu of
sending a termination statement to Guarantors, cause said termination statement
to be filed with the appropriate filing officer(s).
14. GOVERNING LAW. This Agreement shall be construed and enforced under
the law of the State of Tennessee.
15. GENERAL CONSTRUCTION. All terms used but not otherwise defined
herein that are defined or used in Article 9 of the New York Uniform Commercial
Code shall have the respective meanings assigned to them in such Article. As
used in this Agreement, the masculine, feminine and neuter genders and the
plural and singular numbers shall be deemed to include the others in all cases
in which they would so apply. "Includes" and "including" are not limiting, and
shall be deemed to be followed by "without limitation" regardless of whether
such words or words of like import in fact follow same. The word "or" is not
intended and shall not be construed to be exclusive.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement, or
have caused this Agreement to be executed by their duly authorized officers or
other representatives, as of the date first above written.
GUARANTORS:
GUIDELINE RESEARCH CORP.
By: /s/ Xxxxx Xxxxx
--------------------------
Title: Vice President
---------------
TABLINE DATA SERVICES, INC.
By: /s/ Xxxxx Xxxxx
--------------------------
Title: Vice President
---------------
GUIDELINE/CHICAGO, INC.
By: /s/ Xxxxx Xxxxx
--------------------------
Title: Vice President
---------------
ADVANCED ANALYTICS, INC.
By: /s/ Xxxxx Xxxxx
--------------------------
Title: Vice President
---------------
GUIDELINE CONSULTING CORP.
By: /s/ Xxxxx Xxxxx
--------------------------
Title: Vice President
---------------
TTECH ACQUISITION CORP.
By: /s/ Xxxxx Xxxxx
--------------------------
Title: Vice President
---------------
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LENDER:
PETRA MEZZANINE FUND, L.P.
By: Petra Partners, LLC, its general partner
By: /s/ Xxxxxx X. X'Xxxxx III
------------------------------
Xxxxxx X. X'Xxxxx III,
Managing Member
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SCHEDULE 3(A)
[PLACES OF BUSINESS; LOCATIONS OF COLLATERAL AND RECORDS]
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