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AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
This Amendment to Amended and Restated Credit Agreement (the "AMENDMENT") is
made this 10 day of October, 1996 between Total Research Corporation
("BORROWER"), a Delaware corporation having its chief executive office at 0
Xxxxxxxxxxxx Xxx, Xxxxxxxxx, Xxx Xxxxxx 00000-0000 and Summit Bank ("BANK"),
successor-in-interest to United Jersey Bank, having offices at 000 Xxxxxxxx
Xxxxxx, XX 0000, Xxxxxxxxx, Xxx Xxxxxx 00000-0000.
BACKGROUND
A. Pursuant to the terms and subject to the conditions of that certain
Amended and Restated Credit Agreement dated December 28, 1995 between Borrower
and Bank (the "CREDIT AGREEMENT") and related instruments, agreements and
documents (collectively, along with the Credit Agreement, hereinafter referred
to as the "FINANCING AGREEMENTS"). Borrower is currently indebted to Bank for
repayment of (i) a term loan in the original principal sum of Three Million
($3,000,000.00) Dollars (referred to in the Credit Agreement and this Amendment
as the "FACILITY A LOAN"), which indebtedness is evidenced by Borrower's
Promissory Note dated December 28, 1995 in the principal sum of Three Million
($3,000,000.00) Dollars executed and delivered by Borrower to Bank (referred to
in the Credit Agreement and this Amendment as the "FACILITY A NOTE"), and (ii)
various loans, advances and extensions of credit made by Bank to or for the
benefit of Borrower under an asset-based revolving credit facility in the
principal sum of up to One Million Two Hundred Fifty Thousand ($1,250,000.00)
Dollars (referred to in the Credit Agreement an this Amendment as the
"FACILITY C LOAN"), which indebtedness is evidenced by that certain Promissory
Note dated December 28, 1995 in the principal sum of One Million Two Hundred
Fifty Thousand ($1,250,000.00) Dollars executed and delivered by Borrower to
Bank (referred to in the Credit Agreement and this Amendment as the "FACILITY C
NOTE").
B. Also pursuant to the terms and subject to the conditions of the
Credit Agreement, Bank established for the benefit of Borrower an equipment
acquisition line of credit facility (referred to in the Credit Agreement and
this Amendment as the "FACILITY B LOAN"). No loans or advances are outstanding
under the Facility B Loan and Borrower and Bank hereby acknowledge and agree
that no loans or advances shall be requested, considered or made under the
Facility B Loan and that such facility is hereby acknowledged to be cancelled,
with no commitment on the part of Bank to consider or make any such loans or
advances.
C. Borrower has requested that Bank extend the term of the Facility C
Loan and otherwise modify certain terms, covenants and conditions set forth in
the Financing Agreements, and Bank is willing to do so under the terms and
subject to the conditions set forth in this Amendment and in the instruments,
agreements and documents referred to in this Amendment.
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NOW, THEREFORE, with the foregoing Background deemed incorporated hereinafter
by this reference and hereby made a part hereof, the parties hereto, intending
to be legally bound, hereby further covenant and agree as follows:
SECTION 1. DEFINITIONS.
1.01 CAPITALIZED TERMS. All capitalized terms not otherwise defined in
this Amendment shall have the meanings ascribed to such terms in the Credit
Agreement.
SECTION 2. CONFIRMATION OF EXISTING INDEBTEDNESS AND
RATIFICATION OF FINANCING AGREEMENTS.
2.01 CONFIRMATION OF EXISTING INDEBTEDNESS. Borrower hereby
unconditionally acknowledges and confirms that; the unpaid principal
indebtedness of Borrower to Bank evidenced by the Facility A Note is, as of the
date hereof, Two Million Five Hundred Fifty Thousand ($2,550,000.00) Dollars;
the unpaid principal indebtedness of Borrower to Bank evidenced by the Facility
C Note is, as of October 9, 1996, Five Hundred Thousand ($500,000.00) Dollars; a
standby letter of credit in the face amount of One Hundred Thousand
($100,000.00) issued for the account of Borrower under the Facility C Loan for
the benefit of 5. Independent Associates is outstanding and no draft or other
request for payment thereunder has been made; interest on the Obligations as
been paid through September 30, 1996; and that the foregoing indebtedness,
together with continually accruing interest and related costs, fees and expenses
is, as of the date hereof, owing without claim, counterclaim, right of
recoupment, defense or set-off of any kind or of any nature whatsoever.
2.02 RATIFICATION OF FINANCING AGREEMENTS. Borrower hereby
unconditionally ratifies and confirms and reaffirms in all respects and without
condition, all of the terms, covenants and conditions set forth in the
Financing Agreements and any other instruments, agreements and documents
evidencing and/or securing the Obligations, and agrees that it remains
unconditionally liable to Bank in accordance with the respective terms,
covenants and conditions of such instruments, agreements and documents, and
that all liens, security interests, mortgages and pledges encumbering the
Collateral created pursuant to and/or referred to in the Credit Agreement and
the other Financing Agreements including, without limitation, that certain
Security Agreement dated December 23, 1991 between Borrower and Bank, continue
unimpaired, are in full force and effect, and secure and shall continue to
secure all of the Obligations of Borrower to Bank including, without
limitation, the Obligations evidenced by the Notes.
SECTION 3. AMENDMENTS TO FINANCING AGREEMENTS.
3.01 AMENDMENTS TO CREDIT AGREEMENT. Under the terms and subject to the
conditions set forth in this Amendment, the Credit Agreement and the other
Financing Agreements are hereby amended as follows:
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(a) Subsection 2.02(C) of the Credit Agreement, and the Facility A
Note, are hereby amended to provide for the rate of interest on the Facility A
Loan to be increased to the rate of nine and one-half (9 1/2%) percent per
annum and, from and after maturity (whether as scheduled or by acceleration),
and notwithstanding any bankruptcy, insolvency, judgment for payment of
Obligations, or otherwise, for interest to accrue on the Obligations, including
the Facility A Loan, at three (3%) percent per annum in excess of the then
applicable rate of interest on the Obligations;
(b) The Facility Maturity Date, defined at Section 2.04 of the
Credit Agreement, is hereby amended to be March 31, 1997; accordingly, the
maturity of the Facility C Loan and the date through which Facility C Advances
may be available to or for the benefit of Borrower thereunder, is hereby
extended to March 31, 1997;
(c) Section 2.04(A) of the Credit Agreement is hereby amended to
provide for a reduction in the Facility C Commitment Amount from the sum of up
to the lesser of fifty (50%) percent of Eligible Accounts or One Million Two
Hundred Fifty Thousand ($1,250,000.00) Dollars to the sum of up to the lesser
of fifty (50%) percent of Eligible Accounts or One Million ($1,000,000.00)
Dollars, which reduction shall be effective on December 31, 1996, and on such
date, without any action on the part of Bank to be taken (including notice to
Borrower), all outstanding Facility C Advances in excess of the sum of the
lesser of fifty (50%) percent of Eligible Accounts or One Million
($1,000,000.00) Dollars shall be immediately paid to Bank. In addition to the
foregoing reduction in the Facility C Commitment Amount, Borrower hereby agrees
that the aggregate of all Obligations (including Obligations under the Facility
A Loan, the Facility C Commitment and in respect of outstanding letters of
credit issued for the account of Borrower) shall not, as of October 31, 1996
and at all times thereafter through December 31, 1996, exceed the aggregate of
ninety (90%) percent of the net book value of Borrower's fixed assets and
eighty (80%) percent of Borrower's Eligible Accounts, and shall not, as of
December 31, 1996 and at all times thereafter, exceed the aggregate of
seventy-five (75%) percent of the net book value of Borrower's fixed assets
and seventy-five (75%) percent of Borrower's Eligible Accounts. Obligations in
excess of the maximum sums described in this Paragraph shall be immediately paid
to Bank;
(d) The first paragraph of Subsection 2.04(D) of the Credit
Agreement is hereby amended to increase the interest rate applicable to the
Facility C Loan by modifying the Margin based upon Borrower's ratio of Total
Liabilities to Tangible Net Worth in accordance with the following schedule
(which replaces and supersedes in all respects the schedule set forth in such
subsection):
Ratio of Total Liabilities
to Tangible Net Worth Margin
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9.00 to 1.00 or greater 3%
between 5.00 to 1.00 and 8.99 to 1.00 2%
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between 4.00 to 1.00 and 4.99 to 1.00 1 1/2%
between 3.00 to 1.00 and 3.99 to 1.00 1%
between 2.00 to 1.00 and 2.99 to 1.00 3/4%
between 1.00 to 1.00 and 1.99 to 1.00 1/2%
below 1.00 to 1.00
(e) Clause (i) of Subsection 2.05(A) of the Credit Agreement is hereby
amended to reduce the aggregate amount of all Letters of Credit which may be
outstanding under the Facility C Loan to the aggregate amount of One Hundred
Thousand ($100,000.00) Dollars;
(f) Subsection 5.02(j) is hereby deleted in its entirety and replaced
with the following:
(j) Maintenance of Tangible Net Worth. Permit consolidated
Tangible Net Worth of the Borrower to be less than Two Hundred
Seventy-Five Thousand ($275,000.00) Dollars as of September 30, 1996,
Three Hundred Seventy-Five Thousand ($375,000.00) Dollars as of December
31, 1996, Five Hundred Thousand ($500,000.00) Dollars as of June 30,
1997 and One Million ($1,000,000.00) Dollars as of June 30, 1998;
(g) Subsection 5.02(k) is hereby deleted in its entirety and replaced
with the following:
(k) Maintenance of Ratio of Total Liabilities to Tangible Net
Worth. Permit the ratio of consolidated total Liabilities to
Consolidated Tangible Net Worth of the Borrower to be more than 9.00 to
1.00 as of June 30, 1997;
(h) Subsection 5.02(l) is hereby deleted in its entirety and replaced
with the following:
(l) Debt Service Coverage Ratio. Permit the ratio of (i) the
sum of net income after taxes, plus depreciation, amortization and
interest expense for any fiscal year, commencing with Borrower's fiscal
year ending June 30, 1997, to (ii) the sum of current maturities of
Long-Term Indebtedness as of the end of such fiscal year plus interest
expense for such fiscal year, to be less than 1.50 to 1.00 on a
consolidated basis.
(i) Subsection 5.02(n) is hereby deleted in its entirety and replaced
with the following:
(n) Quick Ratio. Permit the ratio of: (i) the sum of
consolidated cash and equivalents plus consolidated accounts
receivable, to (ii) consolidated Current Liabilities, as of the last
day of the fiscal quarter ending December 31, 1996 and
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each fiscal quarter thereafter to and including March 31, 1997,
to be less than .50 to 1.00, and as of the last day of each
fiscal quarter thereafter, commencing June 30, 1997, to be less
than .70 to 1.00.
(j) Subsection 5.03(e) requiring the submission of quarterly
work-in-process reports in form and substance satisfactory to Bank is hereby
amended to require such management prepared work-in-process reports on a
monthly basis, within twenty (20) days after the end of each calendar month;
(k) Subsection 5.03(f) of the Credit Agreement is hereby
amended to require, in addition to the monthly reports referred to therein, (i)
a management prepared accounts receivable aging report (as required monthly) on
a weekly basis, on Wednesday of each week for the prior week, and (ii) a four
(4) week cash flow projection on a rolling weekly basis, also on Wednesday of
each week; and
(l) On or before October 31, 1996, Borrower agrees to
retain a management/financial consultant, selected by Borrower and acceptable
to Bank, pursuant to an agreement reasonably acceptable to Bank and providing
for, among other things, an engagement on an ongoing basis for a term of not
less than one (1) year. Bank and its counsel are hereby authorized to
communicate directly with such consultant and such consultant is hereby
directed to provide Bank with all reports and to respond to all requests for
information from Bank and its counsel relating to Borrower and its business and
prospects.
Borrower acknowledges and confirms that the amendment to the Credit Agreement
and the other Financing Agreements to include financial and other covenants
requiring compliance subsequent to the Facility Maturity Date, as hereby
amended and extended, shall not be construed as, and is not intended to be, any
commitment on the part of Bank to further extend such maturity date or
availability under the Facility A Loan.
SECTION 4. WARRANTIES AND REPRESENTATIONS.
4.01 REAFFIRMATION OF WARRANTIES AND REPRESENTATIONS. All warrants
and representations set forth in the Credit Agreement and the other Financing
Agreements are hereby reasserted and restated by Borrower as of the date hereof
as if set forth at length herein. Borrower hereby acknowledges that such
warranties and representations, and the warranties and representations set
forth below, are being specifically relied upon by Bank as a material inducement
to Bank to enter into this Amendment.
4.02 ADDITIONAL WARRANTIES AND REPRESENTATIONS. As a further
inducement to Bank to enter into this Amendment, Borrower further represents
and warrants to Bank that:
(a) Borrower has the power, authority and capacity to enter
into and perform this Amendment and all related instruments, agreements and
documents, and to incur the
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Obligations herein and therein provided for, and Borrower has taken all proper
and necessary corporate action to authorize the execution, delivery and
performance of this Amendment and related instruments, agreements and documents;
(b) This Amendment is valid, binding and enforceable against Borrower
in accordance with its terms; and
(c) No consent, approval or authorization of, or filing, registration
or qualification with, any Person is required to be obtained by Borrower in
connection with the execution and delivery of this Amendment or any related
instrument, agreement or document, or undertaking or performance of any
Obligation hereunder or thereunder.
SECTION 5. CONDITIONS PRECEDENT.
This Amendment is subject to the following conditions precedent (all
instruments, agreements and documents to be in form and substance satisfactory
to Bank and its counsel):
5.01 DOCUMENTS REQUIRED FOR CLOSING. Borrower shall have duly executed
and/or delivered (or caused to be duly executed and/or delivered) to Bank the
following:
5.02 This Amendment and each other instrument, agreement and document
to be executed and/or delivered pursuant to this Amendment and/or the
instruments, agreements and documents referred to in this Amendment;
5.03 Such instruments, agreements and documents as Bank or its counsel
deems necessary or desirable to confirm Bank's lien on and security interest in
and to Borrower's existing and future federal, state and local tax refunds, it
being acknowledged and agreed that such sums, upon receipt thereof, shall be
applied to the Obligations as follows: absent the existence of any Event of
Default or any event which, with the passage of time or the giving of notice,
or both, could constitute an Event of Default, such sums, up to Five Hundred
Thousand ($500,000.00) Dollars, shall be applied to principal installments
under the Facility A Loan in the inverse order of their maturity (last
installment credited first) and sums in excess of Five Hundred Thousand
($500,000.00) Dollars shall be applied to the Facility C Loan. After the
occurrence of any Event of Default or any event which, with the passage of
time or the giving of notice, or both, could constitute an Event of Default,
such sums may be applied by Bank to the Obligations in such order and manner
as Bank, in its sole discretion, may determine.
5.04 As additional collateral security for the Obligations, pursuant to
an Assignment of Life Insurance Policy as Collateral executed and delivered by
Borrower to Bank, Borrower shall assign to Bank and grant to Bank a lien on and
security interest in and to a certain policy of life insurance in the face
amount of One Hundred Fifty Thousand ($150,000.00) Dollars on the life of Xxxxx
Xxxxxxx ("XXXXXXX");
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5.05 As additional collateral security for the Obligations, pursuant to
a Collateral Pledge Agreement executed and delivered by Xxxxxxx to Bank,
Xxxxxxx shall pledge to Bank and grant to Bank a lien on and security interest
in and to five hundred thousand (500,000) shares of the issued and outstanding
capital stock of Borrower, which shares shall stand as collateral security for
the Obligations until the earlier of payment and satisfaction in full of the
Obligations or, so long as no Event of Default has occurred and is continuing,
until Borrower has made a prepayment of the Obligations evidenced by the
Facility A Note with proceeds of the tax refund referred to in Paragraph 5.03
of this Amendment or other sums of not less than Five Hundred Thousand
($500,000.00) Dollars;
5.06 A certified (as of the date of this Amendment) copy of the
unanimous consent if directors of Borrower authorizing the execution, delivery
and performance of this Amendment and each other document to be executed and/or
delivered pursuant hereto and any other instrument, agreement or document
referred to herein;
5.07 A certificate (dated the date of this Amendment) of Borrower's
corporate secretary as to the incumbency and specimen signatures of the
officers of Borrower executing this Amendment and each other document to be
executed and/or delivered pursuant hereto or thereto; and
5.08 Such other instruments, agreements and documents as may be
required by Bank and/or its counsel including, without limitation, specific
amendments to the Notes.
SECTION 6. MISCELLANEOUS.
6.01 INTEGRATED AGREEMENT. This Amendment and all of the instruments,
agreements and documents executed and/or delivered in conjunction with this
Amendment shall be effective upon the date of execution hereof and thereof by
all parties hereto and thereto, and shall be deemed incorporated into and made
a part of the Credit Agreement and the other Financing Agreements. All such
instruments, agreements and documents, and this Amendment, shall be construed
as integrated and complementary of each other, and as augmenting and not
restricting Bank's rights, remedies, benefits and security. If, after applying
the foregoing, an inconsistency still exists, the provisions of this Amendment
shall constitute an amendment thereto and shall govern and control.
6.02 EXPENSES OF BANK. Borrower shall pay expenses (including the
reasonable fees and expenses of legal counsel to Bank) relating to this
Amendment and all related instruments, agreements and documents. Borrower
hereby authorizes Bank to debit any account of Borrower for any of the
Obligations, including the reimbursement Obligation pursuant to this Paragraph.
6.03 NO DEFENSES: RELIANCE. Borrower hereby confirms and reconfirms
that there are no existing defenses, claims, counterclaims or rights of
recoupment or set-off against Bank in connection with the negotiation,
preparation, execution, performance or any other matters
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relating to the Financing Agreements or this Amendment. It is hereby and thereby
further acknowledged and agreed that notwithstanding anything to the contrary
set forth in this Amendment, Bank has and shall have no obligation to (i)
further amend the Financing Agreements, or otherwise further restructure the
Obligations, (ii) further extend the Facility Maturity Date, (iii) refrain from
terminating the Facility C Commitment upon the occurrence of any Event of
Default or (iv) enter into any other instruments, agreements or documents
regarding any of the same with Borrower, and that neither Bank nor its
representatives have made any agreements with, or commitments or
representations or warranties to, Borrower or any other obligor for the
Obligations (either in writing or orally) other than as expressly stated in this
Amendment. Nothing contained in this Amendment, or any compliance with the
terms of this Amendment or any of the instruments, agreements or documents
referred to in this Amendment, shall impose any obligation on the part of Bank
to consummate a further restructure of the Obligations.
6.04 RELEASE. In consideration of the accommodations being made
available by Bank to or for the benefit of Borrower under this Amendment,
Borrower, for itself and its agents, employees, successors and assigns, do
hereby remise, release and forever discharge Bank and its agents, employees,
representatives, officers, successors and assigns of and from any and all
claims, counterclaims, demands, actions and causes of action of any nature
whatsoever, whether at law or in equity, including, without limitation, any of
the foregoing arising out of or relating to the transactions described in this
Amendment, which against Bank or its agents, employees, representatives,
officers, successors or assigns, or any of them, Borrower now has or hereafter
can or may have for or by reason of any cause, matter of thing whatsoever, from
the beginning of the world to the date of this Amendment.
6.05 APPLICABLE LAW. The substantive Laws of the State of New Jersey
shall govern the construction of this Amendment and the rights and remedies of
the parties hereto.
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6.06 COUNTERPARTS. This Amendment may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
Loan and Security Agreement to be duly executed and exchanged as of the day and
year first above written.
TOTAL RESEARCH CORPORATION,
a Delaware corporation
(CORPORATE SEAL)
ATTEST: /s/ XXXX XXXXXXX By: /s/ XXXXX XXXXXXX
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Name: Xxxx Xxxxxxx Name: Xxxxx Xxxxxxx
Title: VP Acctg & Finance Title: Chairman
SUMMIT BANK,
By: /s/ XXXXXXX X. XXXXXX
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Xxxxxxx X. Xxxxxx,
Vice President
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