Exhibit 10(v)
FOURTH MODIFICATION AGREEMENT
Agreement, made as of January 15, 1998, among FIND/SVP, INC., a New
York corporation ("Find/SVP") with an office located at 000 Xxxxxx xx xxx
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000; FIND/SVP PUBLISHED PRODUCTS, INC., a
Delaware corporation, ("Find/SVP Published") with an office located at 625
Avenue of the Americas, Xxx Xxxx, Xxx Xxxx 00000-0000 (FIND/SVP and Find/SVP
Published are collectively referred to as the "BORROWERS"); FIND/SVP INTERNET
SERVICES, INC., a Delaware corporation with an office located at 625 Avenue of
the Americas, Xxx Xxxx, Xxx Xxxx 00000-0000 (the "GUARANTOR") (the Borrowers and
the Guarantor are sometimes collectively referred to as the "OBLIGORS"); and
STATE STREET BANK AND TRUST COMPANY, a Massachusetts bank and trust company with
an office located at 000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000-0000 (the
"LENDER").
RECITALS
A. Pursuant to the Commercial Revolving Loan, Term Loan and Security
Agreement dated April 27, 1995 (the "1995 LOAN AGREEMENT"), the Lender extended
to the Borrowers the following: (a) a $2,000,000 revolving loan facility (the
"ORIGINAL $2,000,000 REVOLVING LOAN") and (b) a $2,000,000 term loan facility
(the "$2,000,000 TERM LOAN") as evidenced by the $2,000,000 Commercial Revolving
Promissory Note dated April 27, 1995 (the "ORIGINAL $2,000,000 REVOLVING NOTE")
and the $2,000,000 Commercial Term Promissory Note dated April 27, 1995 (the
"$2,000,000 TERM NOTE"), respectively.
B. Pursuant to the Commercial Term Loan and Security Agreement dated
May 31, 1996 (the "1996 LOAN AGREEMENT"), the Lender extended to the Borrowers a
$500,000 term loan facility (the "$500,000 TERM LOAN") as evidenced by the
$500,000 Commercial Term Promissory Note dated May 31, 1996 (the "$500,000 TERM
NOTE").
C. The Lender has replaced the Original $2,000,000 Revolving Loan and
the Original $2,000,000 Revolving Note with a replacement $2,500,000 revolving
loan facility that reduced in accordance with its terms to a $2,000,000
revolving loan facility (the "$2,000,000 REVOLVING LOAN") as evidenced by the
$2,500,000 Replacement Commercial Revolving Promissory Note dated July 24, 1997
(the "$2,000,000 REVOLVING NOTE").
D. Pursuant to the Guaranty dated July 24, 1997 (the "FIRST GUARANTY"),
the Guarantor guarantied the performance of the Borrowers' obligations to the
Lender, including, but not limited to, the loans set forth herein.
E. Pursuant to the Modification Agreement dated July 24, 1997 (the
"MODIFICATION AGREEMENT"), the Borrowers and the Lender modified the 1995 Loan
Agreement and the 1996 Loan Agreement.
F. Pursuant to the Second Modification Agreement dated as of September
30, 1997 (the "SECOND MODIFICATION AGREEMENT"), the Borrowers and the Lender
modified the 1995 Loan Agreement and the 1996 Loan Agreement.
G. Pursuant to the $1,000,000 Commercial Revolving Loan and Security
Agreement dated October 23, 1997 (the "1997 LOAN AGREEMENT"), the Lender
extended to the Borrowers a $1,000,000 revolving loan facility (the "$1,000,000
REVOLVING LOAN") as evidenced by the $1,000,000 Commercial Revolving Promissory
Note dated October 23, 1997 (the "$1,000,000 REVOLVING NOTE").
H. Pursuant to the Guaranty dated October 23, 1997 (the "SECOND
GUARANTY" and along with the First Guaranty the "GUARANTIES"), the Guarantor
guarantied the performance of the Borrowers' obligations to the Lender,
including, but not limited to, the loans set forth herein.
I. Pursuant to the Third Modification Agreement dated as of December
31, 1997 (the "THIRD MODIFICATION AGREEMENT"), the Borrowers and the Lender
modified the 1995 Loan Agreement, the 1996 Loan Agreement and the 1997 Loan
Agreement.
J. The Lender has extended to the Borrowers as of the date herein the
following: (i) a $2,000,000 revolving loan facility (the "$2,000,000 REPLACEMENT
REVOLVING LOAN") as evidenced by the $2,000,000 Replacement Commercial Revolving
Promissory Note dated the date herein (the "$2,000,000 REPLACEMENT REVOLVING
NOTE") to replace the $2,000,000 Revolving Loan and $2,000,000 Revolving Note;
and (ii) a $1,000,000 revolving loan facility (the "$1,000,000 REPLACEMENT
REVOLVING LOAN") as evidenced by the $1,000,000 Replacement Commercial Revolving
Promissory Note dated the date herein (the "$1,000,000 REPLACEMENT REVOLVING
NOTE") to replace the $1,000,000 Revolving Loan and the $1,000,000 Revolving
Note.
I. The Borrowers have requested that the Lender modify the 1995
Loan Agreement and the 1997 Loan Agreement subject to the terms and conditions
set forth below.
AGREEMENT
In consideration of the Recitals, which are incorporated by this
reference, other good and valuable consideration, the receipt and sufficiency of
which is acknowledged, and the mutual promises and covenants contained in this
Agreement, the parties intending to be bound legally, agree as follows:
1. DEFINITIONS AND DOCUMENT REFERENCES. All terms defined in the 1995 Loan
Agreement, the 1996 Loan Agreement, the 1997 Loan Agreement and all other
documents executed in connection therewith (collectively, the "LOAN DOCUMENTS")
shall have the same definitions set forth therein and are incorporated by this
reference. All references to the Loan Documents are as modified by the
Modification Agreement, the Second Modification Agreement and the Third
Modification Agreement.
1. AMENDMENTS. All of the provisions of the Loan Documents shall remain in full
force and effect except as follows or as otherwise set forth in this Agreement:
(a) EXHIBIT "A" attached to the 1995 Loan Agreement is deleted in its entirety
and EXHIBIT "A" TO THE COMMERCIAL REVOLVING LOAN, TERM LOAN AND SECURITY
AGREEMENT attached hereto is substituted therefor.
(a) The date "January 15, 1998" in Section 1.01(aq) of the 1995 Loan Agreement
is deleted and the date "March 26, 1998" is substituted therefor.
(a) EXHIBIT "A" attached to the 1997 Loan Agreement is deleted in its entirety
and EXHIBIT "A" TO THE COMMERCIAL REVOLVING LOAN AND SECURITY AGREEMENT attached
hereto is substituted therefor.
(a) The date "January 15, 1998" in Section 1.01(cc) of the 1997 Loan Agreement
is deleted and the date "March 26, 1998" is substituted therefor.
1. FURTHER DOCUMENTATION. Simultaneous with the execution and delivery of this
Agreement, the Obligors shall deliver to Lender such documentation as is
required by the Lender including, but not limited to, Corporate Resolutions,
Good Standing Certificate, Certificate of Insurance and such other documents as
the Lender deems necessary or appropriate, all in form and content satisfactory
to the Lender.
1. ACKNOWLEDGMENTS. Each of the Obligors acknowledges and agrees that:
(a) The aggregate amount of indebtedness of which the Obligors are jointly,
severally, legally, validly and enforceably indebted to the Lender under the
Loan Documents, as amended, replaced and supplemented by this Agreement and all
other documents executed in connection herewith (collectively, the "AMENDED LOAN
DOCUMENTS") without defense, counterclaim or offset as of January 13, 1998 is:
(i) $900,000.00 with respect to the $2,000,000 Term Loan; (ii) $148,000.00 with
respect to the $2,000,000 Revolving Loan as replaced by the $2,000,000
Replacement Revolving Loan; (iii) $325,000.00 with respect to the $500,000 Term
Loan and (iv) $0.00 with respect to the $1,000,000 Revolving Loan as replaced by
the $1,000,000.00 Replacement Revolving Loan (the "EXISTING DEBT") plus interest
accruing therein.
(a) The Obligors are jointly and severally legally, validly and enforceably
liable for any and all reasonable costs and expenses of collection and
attorneys' fees related to or in any way arising out of the Amended Loan
Documents and the Existing Debt.
1. REPRESENTATIONS, WARRANTIES AND COVENANTS. All of the representations,
warranties and covenants contained in the Amended Loan Documents are true and
correct on and as of the date hereof except to the extent that any of the
foregoing are amended or restated as set forth below. Without limiting the
generality of the foregoing, the Obligors jointly and severally represent,
warrant and covenant that:
(a) NO LIQUIDATION. There are no liquidation or dissolution proceedings pending
or threatened against the Obligors and no other event has occurred which affects
or threatens the corporate existence of the Obligors.
(a) ADVISED BY COUNSEL. The Obligors each acknowledge that (i) they have been
advised by counsel in the preparation, negotiation, execution and delivery of
this Agreement; (ii) they have made an independent decision to enter into this
Agreement without reliance on any representation, warranty, covenants or
undertaking by the Lender, (iii) the Lender has no fiduciary obligation toward
any of the Obligors with respect to this Agreement or the other Amended Loan
Documents, (iv) the relationship between the Obligors and the Lender pursuant to
this Agreement and the other Amended Loan Documents is and shall be solely that
of debtor and creditor, respective; and (v) each of the Obligors understands the
meaning and legal effect of this Agreement.
(a) SECRETARIES' CERTIFICATE. The resolutions contained in the Secretaries'
Certificates of the Borrowers dated April 27, 1995, May 31, 1996, July 21, 1997
and October 21, 1997 and the resolutions contained in the Secretary's
Certificate of the Guarantor dated July 21, 1997 and October 21, 1997
(collectively, the "RESOLUTIONS") have not in any way been rescinded or modified
and have been in full force and effect since their adoption to and including the
date hereof and are now in effect. The Resolutions are the only proceedings of
the Obligors now in force relating to or affecting the matters referred to
therein except for the resolution dated January 15, 1998 and authorize the
Obligors to make the modifications described herein.
(a) NO LITIGATION. Except as set forth in SCHEDULE 5(D) attached hereto, there
are no pending, or to any of the Obligors' knowledge threatened, legal
proceedings to which any of the Obligors is a party and which materially
adversely affect the transactions contemplated by this Agreement or the other
Amended Loan Documents or materially adversely affect their abilities to conduct
their businesses.
(a) COMPLIANCE WITH LAW. The execution and delivery of this Agreement, the
consummation of the transactions contemplated herein, the fulfillment of or
compliance with the terms and conditions of this Agreement or any of the other
Amended Loan Documents is not prevented or limited by, or conflicts with or
results in a breach of terms, conditions or provisions of the Obligers'
certificate of incorporation and
bylaws or any evidence of indebtedness, agreement or instrument of whatever
nature to which the Obligors are now a party or by which any of the Borrowers
are bound, or constitutes a default under any of the foregoing.
(a) NO VIOLATION OF LAW. To the best of their knowledge, each of the Obligors is
not in violation of any federal, state or local law, regulation or order, and
each of the Obligors has not received any notice of any such violation.
(a) PRESERVED COLLATERAL. Each of the Obligors shall preserve, maintain and
protect the security provided for in the Amended Loan Documents and shall defend
the rights and interests of the Lender in the Collateral (as defined in the
Security Agreement) against the claims and demands of all persons.
(a) NOTICE OF DEFAULT. As soon as any of the Obligors becomes aware that any
Event of Default exists or has occurred, whether under this Agreement, any of
the other Amended Loan Documents or any other agreements for borrowed money
regardless of whether such other agreement has been entered into with the
Lender, such Obligors will immediately notify and thereafter deliver to the
Lender a written notice specifying the nature and duration thereof, and what
action such Obligor is taking or proposes to take with respect thereof.
(a) GOOD STANDING AND QUALIFICATION. Each of the Obligors is a corporation duly
organized, validly existing and in good standing under the laws of the state of
incorporation as set forth on the first page of this Agreement. Each of the
Obligors has all requisite corporate power and authority to own and operate its
properties and to carry on its businesses as presently conducted and is
qualified to do business and to be in good standing as a foreign corporation in
each jurisdiction where the character of the property owned or leased by it
therein or in which the transaction of its business therein makes such
qualifications necessary.
(a) CORPORATE AUTHORITY. The Obligors have full corporate power and authority to
enter into and perform the obligations under this Agreement, to execute and
deliver the Amended Loan Documents and to incur the obligations provided for
herein and therein, all of which have been duly authorized by all necessary and
proper corporate action. No other consent or approval or the taking of any other
action in respect of shareholders or any public authority is required as a
condition to the validity or enforceability of this Agreement, or any of the
other Amended Loan Documents. The execution and delivery of this Agreement is
for valid corporate purposes.
(a) BINDING AGREEMENT. This Agreement and the other Amended Loan Documents
constitute valid and legally binding obligations of the Borrowers enforceable
against each in accordance with their respective terms, except as enforcement
may be limited by bankruptcy, insolvency or similar laws affecting the
enforcement of creditors' rights generally.
(a) COMPLIANCE. Each of the Obligors is not in default with respect to or in
violation of any order, writ, injunction or decree of any court or of any
federal, state municipal or other governmental department, commission, board,
bureau, agency, authority or official, or in violation of any law, statute, rule
or regulation to which they or their properties is or are subject, where such
default or violation would materially and adversely affect the financial
condition of any of the Borrowers. Each of the Borrowers represents that it has
not received notice of any such default from any
party. Each of the Borrowers is not in default from the payment or performance
of any of its respective obligations to any third parties or in the performance
of any mortgage, indenture, lease, contract or other agreement to which it is a
party or by which any of its assets or properties are bound.
1. SECURITY AGREEMENT REAFFIRMATION. (a) The Borrowers acknowledge, agree and
reaffirm that the 1995 Loan Agreement, the 1996 Loan Agreement and the 1997 Loan
Agreement shall secure all of the obligations of the Borrowers to the Lender
including, but not limited to, the obligations of the Borrowers under (i) the
$2,000,000 Term Note and the $2,000,000 Replacement Revolving Note, (ii) the
$500,000 Term Note and (iii) the $1,000,000 Replacement Revolving Note.
(b) The Guarantor acknowledges, agrees and reaffirms that its
Security Agreement dated July 27, 1997 and October 23, 1997 shall secure all of
the obligations of the Guarantor to the Lender including, but not limited to,
the obligations of the Guarantor under the Guaranties.
(a) GUARANTIES. The Guarantor acknowledges that it is unconditionally liable and
legally and validly indebted to the Lender in accordance with the terms of its
Guaranties.
(a) The Guarantor consents to the extension of the $2,000,000 Replacement
Revolving Loan and the $1,000,000 Replacement Revolving Loan, and affirms that
the Guaranties are in full force and effect and include, without limitation, the
indebtedness, liabilities and obligations arising under or in any way connected
with the Amended Loan Documents whether now existing or hereafter arising
including, without limitation, principal, interest, costs and expenses of
collection, and attorneys' fees, their paralegal fees and related disbursements.
(a) The Guarantor further affirms that the Guaranties shall continue in full
force and effect for so long as the Borrowers is indebted, liable or obligated
to the Lender under the Amended Loan Documents.
1. EVENTS OF DEFAULT. The occurrence of any Event of Default under any of the
other Amended Loan Documents or the non-compliance with any of the material
terms, or material misrepresentation or inaccuracy of any of the acknowledgments
or representations hereof shall constitute an Event of Default under this
Agreement.
1. REMEDIES. Upon the occurrence of any Event of Default, the Lender shall have
in any jurisdiction where enforcement hereof is sought, in addition to all other
rights and remedies which the Lender may have under law and equity, all of the
rights and remedies set forth in the Amended Loan Documents.
1. CUMULATIVE REMEDIES. The enumeration of the Lender's rights and remedies set
forth in this Agreement and the other Amended Loan Documents is not intended to
be exhaustive and the exercise by the Lender of any right or remedy shall not
preclude the exercise of any other rights or remedies, all of which shall be
cumulative and shall be in addition to any other right or remedy given hereunder
or under any other agreement between the parties or which may now or hereafter
exist in law or at equity or by suit or otherwise. No delay or failure to take
action on the part of the Lender in exercising any right, power or privilege
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such right, power or privilege preclude other or further exercise thereof or
the exercise of any other right, power or privilege or shall be construed to be
a waiver of any Event of Default. No course of dealing between any of the
Obligors and the Lender or their employees shall be effective to change, modify
or discharge any provision of this Agreement or to constitute a waiver of any
default.
1. AMENDMENT AND RESTATEMENT. Upon the execution of this Agreement and all other
documents executed in connection herewith, the Loan Documents are restated to
the extent that this Agreement and all other documents executed in connection
herewith, restates them and are amended to the extent that this Agreement and
all other documents executed in connection herewith amends them. Except as
specifically amended by the terms of this Agreement or any other documents
executed in connection herewith, all terms and conditions set forth in the Loan
Documents, together with all schedules and exhibits attached thereto, shall
remain in full force and effect. This Agreement and all other documents executed
in connection herewith, to the extent that any of them are inconsistent with the
Loan Documents, supersedes the Loan Documents and any and all prior written or
oral amendments to the Loan Documents.
1. NOTICES. All notices, requests, consents, demands and other communications
hereunder shall be in writing and shall be mailed by registered or certified
first class mail or delivered by an overnight courier to the respective parties
to this Agreement as follows:
If to the Borrowers:
Find/SVP, Inc.
000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Xx. Xxxxx Xxxxxxxx
Executive Vice President
Find/SVP Published Products, Inc.
000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Xx. Xxxxx Xxxxxxxx
Executive Vice President
If to the Guarantor:
Find/SVP Internet Services, Inc.
000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Xx. Xxxxx Xxxxxxxx
President
With a copy to:
Xxxxxxx & Xxxxxx, LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx X. Xxxxxxxx, Esq.
If to the Lender:
State Street Bank and Trust Company
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000-0000
Attn: Xx. Xxxxxx X. Xxxxxxx
Vice President
With a copy to:
Xxxxxxx Xxxxxx X'Xxxxxx & Xxxxxxxxxxx, LLP
Xxx Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxxx, Esq.
1. EXPENSES. The Obligors agree that each is jointly and severally responsible
for the payment to the Lender for the preparation, negotiation and consummation
of this Agreement and the other Amended Loan Documents which includes without
limitation, reasonable attorneys' fees and related disbursements.
1. MISCELLANEOUS.
(a) COUNTERPARTS. This Agreement may be executed in any number of counterparts,
each of which shall be an original, with the same effect as if the signatures
were upon the same instrument. It shall not be necessary in making proof of this
Agreement to produce or account for more than one counterpart.
(a) SUCCESSORS AND ASSIGNS. This Agreement shall bind and inure to the benefit
of the parties hereto and their respective successors and assigns;
provided, however, that the Obligors shall not assign this Agreement, or any
related document, or any of their rights without the prior written consent of
the Lender.
(a) FAILURE OR DELAY NOT A WAIVER. No delay or omission by the Lender to
exercise any right under this Agreement or the other Amended Loan Documents
shall impair any such right, and any such delay or omission shall not be
construed to be a waiver thereof. A waiver of any single breach or default under
this Agreement or the other Amended Loan Documents shall not be deemed a waiver
of any other breach or default. Any waiver, amendment to, consent or approval
under this Agreement or the other Amended Loan Documents by the Lender must be
in writing to be effective and must be signed by the Lender.
(a) SEVERABILITY. If any provision of this Agreement or the other Amended Loan
Documents shall be determined to be invalid, illegal or unenforceable in any
jurisdiction, the validity, legality and enforceability of the remaining
provisions, and of such provision in other jurisdictions, shall not be affected
or impaired thereby.
(a) HEADINGS. Section headings are for convenience of reference only, and shall
not affect the interpretation or meaning of any provision of this Agreement.
(f) GOVERNING LAW . This Agreement and the other Amended Loan
Documents, and all transactions, assignments and transfers hereunder and
thereunder, and all the rights of the parties, shall be governed as to validity,
construction, enforcement and in all other respects by the laws of the
Commonwealth of Massachusetts without giving effect to its conflicts of laws
principles. The Obligors agree that the courts of the Commonwealth of
Massachusetts or the United States District Courts in the Commonwealth of
Massachusetts shall have jurisdiction to hear and determine any claims or
disputes pertaining to the financing transactions of which this Agreement is a
part and/or to any matter arising or in any way related to this Agreement or any
other agreement between the Lender and the Obligors expressly submit and consent
in advance to such jurisdiction in any action or proceeding.
(g) ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the parties, and supersedes all prior discussions and
negotiations relating to the subject matter hereof. The terms of this Agreement
cannot be changed or terminated orally, and shall be deemed effective as of the
date accepted by the Lender by its duly authorized officer. This Agreement and
the other Amended Loan Documents may not be amended or terminated except by a
writing signed by the party against whom enforcement thereof is sought.
1. RELEASE. EACH OF THE OBLIGORS RELEASES, REMISES AND DISCHARGES THE LENDER,
JOINTLY AND SEVERALLY, FROM ALL ACTIONS, CAUSES OF ACTIONS, SUITS, SUMS OF
MONEY, COVENANTS, CONTRACTS, CONTROVERSIES, AGREEMENTS, PROMISES, VACANCIES,
TRESPASSES, DAMAGES, JUDGMENTS, EXTENTS, EXECUTIONS, CLAIMS AND DEMANDS IN LAW
OR EQUITY WHICH ANY OF THE OBLIGORS EVER HAD, NOW HAS OR WHICH ANY OF THEM SHALL
HAVE AGAINST THE LENDER ARISING OUT OF ANY ACTION, OR INACTION OF THE LENDER IN
CONNECTION WITH THE LOAN DOCUMENTS OCCURRING PRIOR TO THE DATE OF THIS
AGREEMENT.
1. JURY TRIAL WAIVER. EACH OF THE OBLIGORS WAIVES TRIAL BY JURY IN ANY COURT AND
IN ANY SUIT, ACTION OR PROCEEDING ON ANY MATTER ARISING IN CONNECTION WITH OR IN
ANY WAY RELATED TO THE FINANCING TRANSACTIONS OF WHICH THIS AND THE OTHER
AMENDED LOAN DOCUMENTS ARE A PART OR THE ENFORCEMENT OF ANY OF THE BANK'S RIGHTS
AND REMEDIES. THE OBLIGORS ACKNOWLEDGE THAT EACH MAKES THIS WAIVER KNOWINGLY,
VOLUNTARILY, WITHOUT DURESS AND ONLY AFTER EXTENSIVE CONSIDERATION OF THE
RAMIFICATIONS OF THIS WAIVER WITH THEIR ATTORNEYS.
The parties hereto have executed this Agreement on the date first
written above.
FIND/SVP, INC.
By /s/ XXXXX XXXXXXXX
------------------
Xxxxx Xxxxxxxx
Its Executive Vice President
FIND/SVP PUBLISHED PRODUCTS, INC.
By /s/ XXXXX XXXXXXXX
------------------
Xxxxx Xxxxxxxx
Its Executive Vice President
FIND/SVP INTERNET SERVICES, INC.
By /s/ XXXXX XXXXXXXX
------------------
Xxxxx Xxxxxxxx
Its President
STATE STREET BANK AND TRUST COMPANY
By /s/ XXXXXX X. XXXXXXX
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Xxxxxx X. Xxxxxxx
Vice President
