AMENDMENT AND WAIVER TO CREDIT AGREEMENT
Exhibit
10.7
AMENDMENT
AND WAIVER TO CREDIT AGREEMENT
Amendment
and Waiver (this “Amendment”) entered into as of August 11, 2005 between
FIND/SVP, INC., a New York corporation, (the “Borrower”), and BANK OF AMERICA,
N.A., successor by merger to Fleet National Bank, a national banking association
organized and existing under the laws of the United States of America (the
“Bank”).
WHEREAS,
the Borrower and the Bank are parties to a Credit Agreement dated as of March
31, 2005 (the “Agreement”);
WHEREAS,
the Borrower has defaulted under provisions of the Agreement which require
that
the Borrower (i) maintain minimum Consolidated EBITDA (as defined in the
Agreement), (ii) maintain maximum Funded Debt to Consolidated EBITDA Ratio
(as
defined in the agreement), and (iii) not permit there to be a net loss on
a
consolidated basis (the “Covenant Defaults”); and
WHEREAS,
the Borrower has requested that the Bank waive, and the Bank has agreed to
waive, the Covenant Defaults, provided that the Agreement is amended as set
forth herein.
NOW,
THEREFORE, the parties hereto hereby agree as follows:
1. All
capitalized terms used herein, unless otherwise defined herein, have the
same
meanings provided therefor in the Agreement.
2. The
Agreement is amended: as follows:
(a) Section
2.01(a) of the Agreement shall be amended by adding the following at the
end of
the first sentence thereof:
“;
and
provided further that, if the Borrower shall effect any Borrowing, as of
the
last day of each month during the fiscal quarter ending September 30, 2005
the
ratio of Total Outstandings to cash and Cash Equivalents of the Borrower
shall
not exceed 1.25 to 1.00.”
(b) A
new
Section 6.01(d) shall be added and shall read as follows:
“(d)
as
soon as available, but in any event no later than 20 days after the end of
each
of July 2005, August 2005 and September 2005, a consolidated and consolidating,
company-prepared, unaudited monthly financial statement of the Borrower and
its
Subsidiaries as at the end of such calendar month, and the related consolidated
and consolidating statements of income or operations, shareholders’ equity and
cash flows for such calendar month and for the portion of the Borrower’s fiscal
year then ended, setting forth in each case in comparative form the figures
for
the corresponding calendar month of the previous fiscal year and the
corresponding portion of the previous fiscal year (except with respect to
the
statement of cash flows and shareholders equity), all in reasonable detail,
such
statements to be certified by a responsible officer of the Borrower and subject
to normal and customary quarter-end review procedures.”
(c) Section
7.11(e) of the Agreement is amended by adding the following to the end thereof:
“or
at
the end of any of July 2005, August 2005 or September 2005.”
3. The
Bank
hereby agrees to waive compliance with the Section 7.11(b), (d) and (e) of
the
Agreement for the fiscal quarter ending June 30, 2005. Such waivers are made
solely to the extent and with respect to the quarter ending June 30,
2005.
4. The
Borrower hereby represents and warrants to the Bank that:
(a) Each
and
every of the representations and warranties set forth in the Agreement and
in
the documents executed pursuant thereto or in connection therewith is true
as of
the date hereof and with the same effect as though made on the date hereof,
and
is hereby incorporated herein in full by reference as if fully restated herein
in their entirety.
(b) After
giving effect to the waivers contained herein, no Default or Event of Default
now exists.
(c) The
Borrower is duly indebted to the Bank under the Loan Documents, as applicable,
without any claim for offset, defense or counterclaim of any kind whatsoever
(any such claim as may exist being hereby irrevocably waived).
5. All
obligations in connection with the Agreement (as amended hereby) and the
other
Loan Documents are and shall continue to be (i) secured by the Collateral
and
the Security Documents, and (ii) guaranteed by the Guarantors under the
Guaranty.
6. Unless
otherwise indicated, the waivers provided in this Amendment are effective
only
in this one instance, only with respect to the Covenant Defaults (for the
fiscal
quarter ended June 30, 2005). Furthermore, the amendment and the waivers
set
forth in this Amendment are limited precisely as written and shall not be
deemed
to (a) be a consent to or a waiver of any other term or condition of the
Agreement or any of the documents referred to therein or (b) prejudice any
right
or rights which the Bank may now have or may have in the future under or
in
connection with the Agreement or any other Loan Documents. Whenever the
Agreement is referred to in the Agreement or in any of the other Loan Documents,
it shall be deemed to mean the Agreement as amended by this
Amendment.
7. This
Amendment shall be effective as of the date first above written; provided
that
this
Amendment shall not be effective unless and until (i) the Bank shall have
received counterparts of this Amendment duly signed by the Borrower and the
Guarantors, (ii) the Borrower shall have paid all the fees and expenses of
the
Bank’s outside counsel in connection with the preparation and negotiation of
this Amendment, as well as a waiver fee of $20,000 (to the Bank) in connection
with the waiver of the Covenant Defaults, and (iii) the Bank shall have received
evidence of such proper corporate (or equivalent) organization, existence,
authority and appropriate corporate (or equivalent) proceedings with respect
to
the Borrower and the Guarantors and the matters addressed by this Amendment
and
the documents, instruments and agreements executed pursuant hereto or in
connection herewith, and such other certificates, instruments, and documents
as
the Bank shall request.
8. This
Amendment may be executed by the parties hereto individually or in any
combination, in one or more counterparts, each of which shall be an original
and
all of which shall together constitute one and the same agreement.
Remainder
of page intentionally left blank
IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed and delivered by their respective duly authorized officers as of
the
date first above written.
|
FIND/SVP,
INC.,
a
New York corporation
|
BANK
OF AMERICA, N.A.,
successor
by merger to Fleet National Bank
|
|
By:
/s/ Xxxxx
Xxxxx
Name:
Xxxxx Xxxxx
Title:
CFO
|
By:
/s/ Tanitha
Boonyam
Name:
Tanitha Boonyam
Title:
VP
|
Each
of
the undersigned Guarantors hereby consents to this Amendment and reaffirms
its
continuing liability under the Guaranty and the Security Agreement (as defined
in the Agreement as amended hereby) and all other Loan Documents (as defined
in
the Agreement, as amended hereby), without any claim for offset, defense
or
counterclaim (any such claim as may exist being hereby irrevocably
waived).
|
ATLANTIC
RESEARCH & CONSULTING, INC.
|
SIGNIA
PARTNERS INCORPORATED
|
|
By:
/s/ Xxxxx
Xxxxx
Name:
Xxxxx Xxxxx
Title:
VP
|
By:
/s/ Xxxxx
Xxxxx
Name:
Xxxxx Xxxxx
Title:
VP
|
|
TTECH
ACQUISITION CORP.
|
GUIDELINE
RESEARCH CORP.
|
|
By:
/s/ Xxxxx
Xxxxx
Name:
Xxxxx Xxxxx
Title:
VP
|
By:
/s/ Xxxxx
Xxxxx
Name:
Xxxxx Xxxxx
Title:
VP
|
|
GUIDELINE/CHICAGO,
INC.
|
ADVANCED
ANALYTICS, INC.
|
|
By:
/s/ Xxxxx
Xxxxx
Name:
Xxxxx Xxxxx
Title:
VP
|
By:
/s/ Xxxxx
Xxxxx
Name:
Xxxxx Xxxxx
Title:
VP
|
|
TABLINE
DATA SERVICES, INC.
|
|
|
By:
/s/ Xxxxx
Xxxxx
Name:
Xxxxx Xxxxx
Title:
VP
|
