FIRST AMENDMENT
TO REVOLVING LOAN AND SECURITY AGREEMENT
THIS FIRST AMENDMENT TO REVOLVING LOAN AND SECURITY AGREEMENT (together
with all appendices, exhibits, schedules and attachments hereto, collectively
this "Amendment") is made and entered into as of April 26, 1996, by and
between THE XXXXX ORGANIZATION, INC., a Delaware corporation and TRO LEARNING
(CANADA), INC., a Canadian corporation (collectively, "Borrower") and SANWA
BUSINESS CREDIT CORPORATION, a Delaware corporation ("Lender").
RECITALS
WHEREAS, Borrower and Lender entered into that certain Revolving Loan
and Security Agreement (the "Loan Agreement") dated as of August 2, 1995
together with documents ancillary thereto;
WHEREAS, Borrower has requested and Lender has agreed to extend a
seasonal facility to accommodate Borrower's operating needs;
NOW THEREFORE, for and in consideration of the premises, the mutual
covenants hereinafter set forth and other good and valuable consideration,
the receipt and sufficiency of which the parties hereby acknowledge, it
hereby is agreed as follows:
ARTICLE I
RECITALS AND DEFINITIONS
1.1 Borrower represents and warrants that the foregoing recitals are
true and correct and constitute an integral part of this Amendment and
Borrower and Lender hereby agree that all of the recitals of this Amendment
are hereby incorporated herein and made a part hereof.
1.2 Unless otherwise defined herein or the context otherwise requires,
all capitalized terms used herein shall have the same meanings as ascribed to
them in the Loan Agreement.
ARTICLE II
AMENDMENT OF THE LOAN AGREEMENT
2.1 Section 2.1 hereby is amended by the inclusion of the following
sentence at the end of the first full paragraph of Section 2.1:
"In addition to the foregoing, Lender shall make available to
Borrower a seasonal overadvance facility (the "Seasonal Overadvance
Facility") in an amount not to exceed Two Million and No/100 Dollars
($2,000,000.00) for the period of time commencing on April 1 and ending
on July 31 of each calendar year during the Term and One Million and
No/100 Dollars ($1,000,000.00) for the period of time commencing on
August 1 and ending on October 31 of each calendar year during the Term.
Borrower shall pay interest on the amount outstanding under the Seasonal
Overadvance Facility equal to two hundred (200) basis points in excess
of the Prime Rate.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1 Borrower hereby makes the following representations and warranties
to Lender, which representations and warranties shall constitute the
continuing covenants of Borrower and shall remain true and correct until all
of Borrower's Liabilities are paid and performed in full:
a. The representations and warranties of Borrower contained in the
Loan Agreement and the Ancillary Agreements are true and correct on and as
of the date hereof as though made on and as of such date;
b. No Event of Default or event which, but for the lapse of time
or the giving of notice, or both, would constitute an Event of Default under
the Loan Agreement has occurred and is continuing or would result from the
execution and delivery of this Amendment;
c. Borrower is in full compliance with all of the terms,
conditions and all provisions of the Loan Agreement and the Ancillary
Agreements;
d. This Amendment and all Ancillary Agreements required hereunder
to be executed by Borrower and delivered to Lender, have been duly
authorized, executed and delivered on Borrower's behalf pursuant to all
requisite corporate authority and this Amendment and each of the Ancillary
Agreements required hereunder to be executed and delivered by Borrower to
Lender constitute the legal, valid and binding obligations of Borrower
enforceable in accordance with their terms, except as enforceability thereof
may be limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to creditors' rights; and
e. Borrower hereby acknowledges and agrees that Borrower has no
defense, offset or counterclaim to the payment of said principal, interest,
fees or other Liabilities and hereby waives and relinquishes any such
defense, offset or counterclaim and Borrower hereby releases Lender and its
respective officers, directors, agents, affiliates, successors and assigns
from any claim, demand or cause of action, known or unknown,
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contingent or liquidated, which may exist or hereafter be known to exist
relating to any matter prior to the date hereof.
ARTICLE IV
RATIFICATION
Except as expressly amended hereby, the Loan Agreement and all Ancillary
Agreements executed in connection therewith shall remain in full force and
effect. The Loan Agreement, as amended hereby, and all rights and powers
created thereby and thereunder or under such Ancillary Agreements, are in all
respects ratified and confirmed. From and after the date hereof, the Loan
Agreement shall be deemed amended and modified as herein provided but, except
as so amended and modified, the Loan Agreement shall continue in full force
and effect and the Loan Agreement and this Amendment shall be read, taken and
construed as one and the same instrument. On and after the date hereof, the
term "Agreement" as used in the Loan Agreement and all other references to
the Loan Agreement therein, in any other instrument, document or writing
executed by Borrower or any guarantor or furnished to Lender by Borrower or
any guarantor in connection therewith or herewith shall mean the Loan
Agreement as amended by this Amendment.
ARTICLE V
MISCELLANEOUS
5.1 Borrower agrees to promptly pay or reimburse all out-of-pocket
costs and expenses of Lender, including without limitation, reasonable
attorneys' and paralegals' fees, costs, expenses, search fees, title
insurance fees, costs and expenses, filing and recording fees incurred by
Lender in connection with the negotiation, preparation, execution, delivery
and enforcement of this Amendment and all other matters pertaining hereto.
5.2 This Amendment may be signed in any number of counterparts, each of
which shall be deemed to be an original, but all of which together shall
constitute one and the same instrument.
5.3 Except as otherwise specified herein, this Amendment embodies the
entire agreement and understanding between Lender and Borrower with respect
to the subject matter hereof and supersedes all prior agreements, consents
and understandings relating to such subject matter.
5.4 The headings in this Amendment have been inserted for convenience
only and shall be given no substantive meaning or significance in construing
the terms of this Amendment.
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5.5 This Amendment shall inure to the benefit of Lender and its
successors and assigns and shall be binding upon and inure to the successors
and assigns of Borrower, except that Borrower may not assign any of its
rights in and to this Amendment.
IN WITNESS WHEREOF, Borrower and Lender have caused this First Amendment
to Revolving Loan and Security Agreement to be executed and delivered as of
the day and year written above.
THE XXXXX ORGANIZATION, INC.
By: /s/ Xxxxxx Xxxxxx
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Name: Xxxxxx Xxxxxx
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Title: SR VP & CFO
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TRO LEARNING (CANADA), INC.
By: /s/ Xxxxxx Xxxxxx
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Name: Xxxxxx Xxxxxx
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Title: SR VP & CFO
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SANWA BUSINESS CREDIT CORPORATION
By: /s/ Xxxxxxx X. Zara
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Name: Xxxxxxx X. Zara
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Title: V.P.
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REAFFIRMATION OF GUARANTY
THE UNDERSIGNED PARTY, as guarantor of the above Borrower pursuant to
its Guaranty of Payment and Performance made as of August 2, 1995,
acknowledges the terms and conditions set forth in this First Amendment To
Revolving Loan And Security Agreement and ratifies and reaffirms its guaranty
obligation as set forth in the foregoing guaranty agreement, as reaffirmed.
DATED: As of April 26, 1996
TRO LEARNING, INC.
By: /s/ Xxxxxx Xxxxxx
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Name: Xxxxxx Xxxxxx
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Title: SRVP & CFO
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Address: 0000 Xxxx Xxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxx Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx
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