Exhibit 4.3
FIRST MODIFICATION TO FOURTH AMENDED AND RESTATED LOAN AGREEMENT
This First Modification to Fourth Amended and Restated Loan Agreement
("Amendment") is made this 24th day of April, 1998 by and among THE JUDGE
GROUP, INC., JUDGE, INC., JUDGE TECHNICAL SERVICES, INC., JUDGE PROFESSIONAL
SERVICES, INC., THE BERKELEY ASSOCIATES CORP., JUDGE IMAGING SYSTEMS, INC. d/b/a
Judge Information Management Solutions, JUDGE ELECTRONICS SERVICES OF FLORIDA,
INC., JUDGE INC. OF NEW JERSEY, JUDGE TECHNICAL SERVICES OF N.J., INC. (jointly
and severally, "Borrowers" and singly, each is a "Borrower") and PNC BANK,
NATIONAL ASSOCIATION ("Lender").
BACKGROUND
A. On December 10, 1996, Borrowers, Sureties and Lender entered into a
certain Fourth Amended and Restated Loan and Security Agreement ("Loan
Agreement"), and related agreements and documents to evidence: (i) a certain
$11,000,000 line of credit (the "Revolving Loan") pursuant to a certain
$11,000,000 Amended and Restated Committed Line of Credit Note from Borrowers to
Lender dated December 10, 1996 (the "Committed Line of Credit Note") and (ii) a
certain $1,000,000 term loan (the "Term Loan") pursuant to a certain $1,000,000
term note from Borrowers to Lender dated September 3, 1996 (the "Term Note"),
and to otherwise reflect certain loan arrangements between the parties. For the
purposes hereof, the Revolving Loan and the Term Loan are hereinafter
collectively referred to as the "Loans" and the Committed Line of Credit Note
and the Term Note are hereinafter collectively referred to as the "Notes". The
Term Loan has been paid and satisfied in full.
B. The Loans and all other obligations of Borrowers to Lender are secured
by a first lien on and security interest in all of each Borrower's now existing
and hereafter acquired and arising property, including without limitation,
accounts, chattel paper, documents, instruments, general intangibles, goods,
inventory, equipment and fixtures, and all cash and non-cash proceeds (including
without limitation, insurance proceeds) of all of the foregoing property and all
additions and accessions thereto, substitutions therefor and replacements
thereof (the "Collateral").
C. Pursuant to the terms of certain Guaranty and Suretyship Agreements
(collectively, the "Surety Agreements") all dated December 10, 1996 from Xxxxxx
X. Judge, Jr., Xxxxxxx X. Xxxx and Xxxxxxxx X. Xxxx, husband and wife
(collectively, "Sureties") to Lender, Sureties
had unconditionally guaranteed, as surety, the existing and future
liabilities of Borrowers to Lender. The obligations of Sureties under the Surety
Agreements have been released and the Surety Agreements have been terminated.
D. On or about January, 1997, Judge Imaging registered the fictitious name
"Judge Information Management Solutions" in the various jurisdictions in which
it does business. For the purposes of collecting receivables, Judge Imaging is
using the name "Judge Information Management Solutions".
E. For the purposes hereof, the Loan Agreement, the Notes, and all other
agreements, instruments and documents executed pursuant thereto are sometimes
hereinafter collectively called the "Existing Financing Agreements." All terms
not otherwise defined herein shall have the respective meanings ascribed thereto
in the Existing Financing Agreements.
F. The parties have agreed, subject to the terms and conditions of the
Existing Financing Agreements, as modified by this Amendment, to modify certain
terms of the Revolving Loan and certain covenants existing in the Loan
Agreement.
NOW, THEREFORE, with the foregoing Background deemed incorporated by
reference herein and made a part hereof, the parties hereto, intending to be
legally bound, hereby promise and agree as follows:
1. AMENDMENTS TO REVOLVING LOAN.
(a) The Revolving Loan is amended, effective on the date hereof, as
follows:
I. Section 2A.1(b) of the Loan Agreement is hereby deleted in its
entirety and is hereby replaced with the following new Section 2A.1(b):
(b) Definition of Revolving Loan Limit. Borrower's Revolving Loan
Limit shall, subject to Sections 2A.1(d) and 2D hereinbelow, be the lesser
of:
(i) Twenty-Five Million Dollars ($25,000,000) less the outstanding
principal balance due by the Borrowers on the Letters of Credit described
in Section 2A.1(d); or
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(ii) The value of the following Collateral determined as follows:
Eighty-five (85%) percent of the Qualified Accounts (less
reserves determined by Lender for advertising allowances, warranty claims
and other contingencies) of Judge Group, New Judge, Inc., Judge Technical,
Berkeley Associates, Judge Imaging, Judge Professional, Judge of Florida,
Judge of New Jersey, Judge Technical of NJ and Judge Imaging.
Anything to contrary contained hereinbelow notwithstanding, the Lender
may increase or decrease the stated advance rates with respect to Qualified
Accounts of the Borrowers as Lender in its sole and absolute discretion may
determine.
Notwithstanding anything herein to the contrary, Borrowers acknowledge
that the Revolving Loan matures on May 31, 2003 and that during the time
the Revolving Loan is outstanding, the aforementioned advance rate of
eighty-five (85%) percent may be reduced by the Lender at its sole
discretion and that the Lender may establish reserves or reduce advance
rates with respect to Qualified Accounts or limit advances in the nature of
letters of credit, at its sole and absolute discretion; provided, however,
the Lender agrees to notify the Borrowers in writing at least fifteen (15)
days in advance of any decrease in the advance rate.
Lender, upon fifteen (15) days prior written notice to the Borrowers,
shall have the right to increase or decrease the Revolving Loan Limit from
time to time.
II. Section 2A.1(c) of the Loan Agreement is hereby amended to add
the following new subsection (J):
(J) (i) The Account shall be eligible only to the extent that it is
not subject to any defense, claim of reduction, counterclaim, set-off,
recoupment, or any dispute or claim for credits (including without
limitation, vendor rebates), allowances or adjustments by the Account
Debtor because of returned, inferior, damaged goods or unsatisfactory
services, or for any other reason;
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(ii) The goods the sale of which gave rise to the Account were shipped
or delivered or provided to the Account Debtor on an absolute sale basis
and not on a xxxx and hold sale basis, a consignment sale basis, a
guaranteed sale basis, a sale or return basis, or on the basis of any other
similar terms making the Account Debtor's payment obligations conditional;
(iii) The Account shall be ineligible if fifty percent (50%) or more
of the accounts of the related Account debtor and its affiliates are more
than ninety (90) days past due from the date of original invoice therefor;
(iv) The Borrower has not received any note, trade acceptance, draft,
chattel paper or other instrument with respect to, or in payment of, the
Account, unless, if any such instrument has been received, the Borrower
immediately notifies the Bank and, at the Bank's request, endorses or
assigns and delivers such instrument to the Bank;
(v) The Account shall be ineligible if the Account debtor is domiciled
in any country other than the United States of America or the Province of
Ontario, Canada, unless such Account is supported by a documentary letter
of credit, duly assigned to and in the possession of the Bank, from a
financial institution acceptable to the Bank and the terms and conditions
of which are acceptable to the Bank.
III. Section 2A.2 of the Loan Agreement is hereby deleted in its
entirety and is hereby replaced by the following new Section 2A.2:
2A.2 Interest Rate. Except in the event of the occurrence of
an Event of Default as provided in the Committed Line of Credit Note and
subject to Section 2B.2(b)(iii) below, the Revolving Loan shall bear
interest at the rate(s) of interest set forth in the Committed Line of
Credit Note; provided, however, upon the occurrence of an Event of Default,
the Revolving Loan shall bear interest at the default rate of interest set
forth in the Committed Line of Credit Note.
IV. Section 2A.9 of the Loan Agreement is hereby deleted in its
entirety and is hereby replaced with the following new Section 2A.9:
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2A.9 Revolving Loan Facility Fee. The Borrower shall pay to
the Lender a fee equal to one-eighth (1/8%)percent of the unused portion of
the Revolving Loan, which fee shall be due and payable quarterly and in
arrears five (5) business days after the end of each calendar quarter
(three (3) months) commencing with the quarter ended June 30, 1998 and on
the fifth (5th) business day after the end of each December, March, June
and September of each calendar year while the Revolving Loan is
outstanding.
V. Section 2A.10 of the Loan Agreement is hereby deleted in its
entirety and is hereby replaced with the following new Section 2A.10:
2A.10. Prepayment. The Revolving Loan may be prepaid in full
and the Revolving Loan terminated by Borrowers at any time (collectively,
such events constitute a "Termination"); provided, however, upon
Termination of the Revolving Loan by the Borrower during the period(s) set
forth below, Borrower shall unconditionally pay to Lender, the following:
(a) Three (3%) percent of the total Revolving Loan credit
facility if Termination occurs in the twelve (12) months after May 31, 1998
("Year 1");
(b) Two (2%) percent of the total Revolving Loan credit
facility if Termination occurs in the twelve (12) months after May 31, 1999
("Year 2"); and
(c) One (1%) percent of the maximum principal amount of the
Revolving Loan Credit facility if Termination occurs in the twelve (12)
months after May 31, 2000.
(b) Contemporaneously herewith, Borrowers shall execute and deliver to
Lender a Replacement Committed Line of Credit Note ("Replacement Note") to
evidence their joint and several unconditional obligation to repay the Revolving
Loan as modified hereby, which Replacement Note shall replace and supersede (but
not extinguish Borrowers' unconditional obligation to repay the indebtedness
evidenced by) the Committed Line of Credit Note.
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2. AMENDMENTS TO COVENANTS. All of the following shall be effective as of
the date of this Amendment:
(a) Section 5.15 of the Loan Agreement is hereby deleted in its entirety
and is replaced by the following new Section 5.15:
Affirmative Financial Covenants. The Borrowers shall comply with the
following financial covenants, (the "Affirmative Financial Covenants") at
all times during the term of the Loans. The Affirmative Financial Covenants
shall be tested by the Lender on a calendar quarter basis, i.e. September
30, December 31, March 31 and June 30 of each calendar year during the
terms of the Loans. The Borrowers shall deliver to the Lender within
forty-five (45) days after the end of each calendar quarter, schedules
setting forth in such detail as may reasonably by required by the Lender, a
computation of the Financial Covenants and certified by the Chief Executive
Officer of the Chief Financial Officer of Borrowers to be true and correct.
The Affirmative Financial Covenants are as follows:
(a) Tangible Net Worth. "Tangible Net Worth" shall mean the
Borrowers' net worth plus subordinated debt plus Series A Preferred Stock
plus subordinated advances from shareholders less officers'/employees'
receivables less amounts due on covenants not to compete, all of the
foregoing as set forth on the Borrowers' consolidated financial statements
prepared in accordance with GAAP. Borrowers' Tangible Net Worth shall not
be less than the following amounts at the dates set forth below:
As of Tangible Net Worth
----- ------------------
March 31, 1998 $20,000,000
June 30, 1998 $20,000,000
September 30, 1998 $21,000,000
December 31, 1998 $22,000,000
March 31, 1999 $23,000,000
June 30, 1999 $24,000,000
September 30, 1999 $25,000,000
December 31, 1999 and
at each calendar quarter
and thereafter $28,000,000
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(b) Ratio of Liabilities to Tangible Net Worth. The ratio of
Borrowers' consolidated Liabilities to Borrowers' Tangible Net Worth shall
not exceed the following ratios at the dates indicated below.
As of Ratio Not to Exceed
----- -------------------
March 31, 1998 3.0 to 1
June 30, 1998 3.0 to 1
September 30, 1998 3.0 to 1
December 31, 1998 3.0 to 1
March 31, 1999 3.0 to 1
June 30, 1999 3.0 to 1
September 30, 1999 3.0 to 1
December 31, 1999 and
at each calendar quarter
and thereafter 3.0 to 1
(c) Fixed Charge Coverage Ratio. During the term of the Loans, the
Borrowers' Fixed Charge Coverage Ratio shall be at least 1.5 to 1 at the
end of each calendar quarter (aggregated for the four preceding calendar
quarters), beginning on March 31, 1998. For the purposes hereof, the "Fixed
Charge Coverage Ratio" shall be calculated as the ratio of: (i) The
Borrowers' aggregate net income plus depreciation, amortization, interest
expense and all other non-cash charges plus net cash proceeds received from
any new capital contribution or subordinated debt minus unfunded Capital
Expenditures to (ii) the sum of current maturities of long term debt plus
interest expense for all indebtedness for borrowed monies (including
capitalized lease obligations), all as such terms would appear on a
consolidated statement of income for Borrowers, prepared in accordance with
GAAP, consistently applied.
(b) Section 6.1 of the Loan Agreement is hereby deleted in its entirety
and is hereby replaced by the following new Section 6.1:
6.1 No Consolidation, Merger, Acquisition, Liquidation. Except as
provided on Schedule 6.1, enter into any merger, consolidation,
reorganization or recapitalization; take
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any steps in contemplation of dissolution or liquidation; conduct any part
of Borrower's business through any corporate subsidiary, unincorporated
association or other entity not disclosed on Schedule 4 to this Agreement;
or acquire the stock or assets of any person, firm, joint venture,
partnership, corporation or other entity, whether by merger, consolidation
purchase of stock or otherwise, provided however that any Borrower may
acquire the assets or stock of any independent entity without Lender's
prior written consent so long as: (i) no Event of Default is outstanding
hereunder at the time of such acquisition; (ii) such acquisition shall have
a purchase price (paid in cash, by note or other consideration) of not more
than $10,000,000 in the aggregate, and (iii) at the time of such
acquisition, any purchased entity joins in and becomes obligated to repay
the obligations evidenced hereby.
(c) Section 6.7 of the Loan Agreement is hereby deleted in its entirety
and is hereby replaced by the following new Section 6.7:
6.7 Dividends and Other Distributions. Declare or pay any cash
dividend or make any distribution on, or redeem, retire or otherwise
acquire directly or indirectly, any share of its stock (except for
purchases of up to $10,000,000 in the aggregate, from Borrowers' stock
purchase plan), or make any distribution of assets to its stockholders.
(d) Section 6.19 of the Loan Agreement is hereby deleted in its entirety
and is replaced by the following new Section 6.19:
Capital Expenditures. During any rolling four quarter period ending
on the dates set forth below, enter into any agreement to purchase or pay
for, or become obligated to pay for, capital expenditures, long term
leases, capital leases or sale lease backs (collectively "Capital
Expenditures"), in an amount aggregated in excess of the following amounts:
For The Prior Four
Calendar Quarters
Ending on: Not to Exceed
---------- -------------
March 31, 1998 $1,700,000
June 30, 1998 $2,600,000
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September 30, 1998 $2,500,000
December 31, 1998 $2,000,000
March 31, 1999 $2,120,000
June 30, 1999 $2,180,000
September 30, 1999 $2,220,000
December 31, 1999 and
at each calendar quarter
and thereafter $2,250,000
Lender shall not unreasonably withhold its consent in the event of the
Borrowers request Lender's consent to permit increases in the Capital
Expenditures limits if necessary to accommodate acquisitions and
corresponding asset upgrades.
(e) Lender confirms that Borrower need not comply with that portion of
Section 8.7 of the Loan Agreement which requires Xxxxxx X. Judge, Jr. to retain
more than 40% ownership of the stock of The Judge Group, Inc. and that the
failure to so retain such stock shall not constitute an Event of Default under
the Loan Agreement.
3. INCORPORATION OF EXISTING FINANCING DOCUMENTS. The parties acknowledge
and agree that this Amendment is incorporated into and made part of the Existing
Financing Agreements, the terms and provisions of which, unless expressly
modified herein, or unless no longer applicable by their terms, continue
unchanged and in full force and effect. To the extent that any term or provision
of this Amendment is or may be deemed expressly inconsistent with any term or
provision in the Existing Financing Agreements, the terms and provisions hereof
shall control.
4. WAIVER OF EXISTING DEFAULTS. Lender and Borrowers acknowledge that an
Event of Default from Borrowers' violation of the following section of the Loan
Agreement was outstanding as of December 31, 1997:
(a) Section 6.19 (Capital Expenditures).
Lender hereby waives the above-referenced default. Each Borrower agrees
that it will hereafter comply fully with these and all other provisions of the
Loan Agreement. Each Borrower further acknowledges and agrees that Lender's
waiver herein is expressly limited to the
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defaults during the period specified above and does not and shall not be
deemed to constitute a waiver of any other defaults or Events of Default, nor
shall it obligate Lender, or be construed to require Lender, to waive any other
defaults, whether now existing or which may occur after the date of this
Agreement, nor shall it limit Lender's rights to exercise all of its rights and
remedies under the Loan Agreement, the Replacement Note, the Surety Agreements
or the other loan documents executed in connection therewith, all of which
rights Lender expressly reserves.
5. LOAN DOCUMENTS. Except where the context clearly requires otherwise, all
references to the Committed Line of Credit Note in the Loan Agreement or in any
other document delivered to Lender in connection therewith shall hereafter be to
the Replacement Note.
6. BORROWER RATIFICATIONS. Each Borrower agrees that it has no defenses or
set-offs against the Lender, its officers, directors, employees, agents or
attorneys with respect to the Note or the Loan Agreement, all of which are in
full force and effect and shall remain in full force and effect unless and until
modified or amended in writing in accordance with their terms. Each Borrower
hereby ratifies and confirms its obligations under the Committed Line of Credit
Note and the Loan Agreement and agrees that the execution and the delivery of
this Agreement does not in any way diminish or invalidate any of its obligations
thereunder.
7. REPRESENTATIONS AND WARRANTIES. Each Borrower hereby certifies that:
(a) except as otherwise disclosed to Lender on Exhibit 7(a) attached
hereto and made a part hereof, the representations and warranties made in the
Replacement Note and the Loan Agreement are true and correct as of the date
hereof;
(b) no Event of Default under the Replacement Note or the Loan Agreement
and no event which with the passage of time or the giving of notice or both
could become an Event of Default, exists on the date hereof; and
(c) this Agreement has been duly authorized, executed and delivered so
as to constitute the legal, valid and binding obligation of each Borrower,
enforceable in accordance with its terms.
All of the above representations and warranties shall survive the
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making of this Agreement.
8. NO WAIVER. Except as expressly provided herein, this Agreement does not
and shall not be deemed to constitute a waiver by Lender of any Event of Default
under the Committed Line of Credit Note, Loan Agreement or of any event which
with the passage of time or the giving of notice or both would constitute an
Event of Default, nor does it obligate Lender to agree to any further extension
of the maturity date of the Replacement Note or constitute a waiver of any of
Lender's other rights or remedies.
9. COLLATERAL. Each Borrower hereby confirms that the Loan Agreement, as
amended, any other collateral or security agreements of each Borrower, and all
Collateral, liens, security interests, mortgages, and pledges created by each
Borrower, continue unimpaired and in full force and effect and shall cover and
secure all of Borrowers' existing and future liabilities to Lender, including
without limitation, Borrowers' liabilities on the Loans, as amended hereby.
10. RELEASE. In consideration for Lender's agreement to consent to the
modifications set forth herein, Borrowers hereby waive and release and forever
discharge Lender and its officers, directors, attorneys, agents, and employees
from any liability, damage, claim, loss or expense of any kind that they may
have now or hereafter against Lender or any of them arising out of or relating
to the Loans. Borrowers hereby further agree to indemnify and hold Lender and
its officers, directors, attorneys, agents and employees harmless from any loss,
damage, judgment, liability or expense (including counsel fees) suffered by or
rendered against Lender or any of them on account of any claims arising out of
or relating to the Loans. Borrowers further state that they have carefully read
the foregoing release, know the contents thereof and grant the same as their own
free act and deed.
11. CONDITIONS TO CLOSING. Borrowers shall deliver the following to Lender
prior to the execution hereof (the "Closing Date") (all documents to be in form
and substance satisfactory to Lender):
(a) This fully executed Amendment, the Replacement Note with Disclosure
of Confession of Judgment form and each other document required by any
provision hereof;
(b) Certified copies of a resolution of each corporate Borrower's Board
of Directors and each partnership Borrower's general
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partners authorizing the execution of this Amendment, and all agreements
and documents referred to herein; and
(c) Unconditional payment to Lender of an amendment fee equal to
$14,000.
12. MISCELLANEOUS.
(a) Headings. The headings of any paragraph of this Amendment are for
convenience only and shall not be used to interpret any provision hereof.
(b) Other Instruments. Each Borrower agrees to execute any other
documents, instruments and writings, in form satisfactory to Lender, as Lender
may reasonably request, as further evidence of Borrower's obligations hereunder
and otherwise to carry out the intentions of parties hereunder.
(c) Modifications. No modification hereof or any agreement referred to
herein shall be binding or enforceable unless in writing and signed on behalf of
the party against whom enforcement is sought.
(d) Third Parties. No rights are intended to be created hereunder for
the benefit of any third party donee, creditor or incidental beneficiary.
(e) Payment of Costs and Expenses. Each Borrower unconditionally agrees
to reimburse Lender for any of its out-of-pocket costs and expenses (including
without limitation attorneys' fees) arising in connection with the preparation,
negotiation, closing and administration of this Amendment and the enforcement of
Lender's rights under the Existing Financing Agreements, as modified hereby.
(f) Consent to Jurisdiction. Borrowers irrevocably consent to the
jurisdiction of the Courts of Common Pleas of Philadelphia, Commonwealth of
Pennsylvania or the United States District Court for the Eastern District of
Pennsylvania in any and all actions and proceedings whether arising hereunder or
under any other agreement or undertaking and irrevocably agree to service of
process by certified mail, return receipt requested to the address of Borrowers
set forth in the Loan Agreement.
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(g) Waiver of Jury Trial. Borrowers hereby irrevocably waive any and all
rights any of them may have to a jury trial in connection with any litigation
commenced by or against Lender with respect to rights and obligations of the
parti
es hereto or otherwise.
DATED the date and year first above written.
THE JUDGE GROUP, INC.
JUDGE, INC.
JUDGE TECHNICAL SERVICES, INC.
JUDGE PROFESSIONAL SERVICES, INC.
THE BERKELEY ASSOCIATES CORP.
JUDGE IMAGING SYSTEMS, INC.
d/b/a Judge Information Management Solutions
JUDGE ELECTRONICS SERVICES OF FLORIDA, INC.
JUDGE INC. OF NEW JERSEY
JUDGE TECHNICAL SERVICES OF N.J., INC.
By: /s/ Xxxxxx X. Judge, Jr.
---------------------------------------
Xxxxxx X. Judge, Jr., on behalf of
all of the above companies
Attest: /s/ Xxxxxxxxx X. Xxxxxxxxxx
-----------------------------------
Xxxxxxxxx X. Xxxxxxxxxx, on
behalf of all of the above
companies
PNC BANK, NATIONAL ASSOCIATION
By:
---------------------------
Title:
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