Exhibit 10.2
AMENDMENT NO. 5 TO CREDIT AGREEMENT
Dated as of February 18, 2000
This Amendment No. 5 to Credit Agreement (this "Amendment") is made by and
among TRIDEX CORPORATION, a Connecticut corporation ("Tridex"), PROGRESSIVE
SOFTWARE, INC., a North Carolina corporation ("PSI"), ULTIMATE TECHNOLOGY
CORPORATION, a New York corporation ("UTC", and collectively, together with
TRIDEX and PSI, the "Borrowers" and each, individually, a "Borrower"), and FLEET
NATIONAL BANK, a national banking association organized under the laws of the
United States of America (the "Bank").
PRELIMINARY STATEMENTS:
A. The Borrowers and the Bank have entered into a Credit Agreement dated
as of April 17, 1998. The Borrowers and the Bank have also entered into an
Amendment No. 1 to Credit Agreement dated as of November 1, 1998 ("Amendment No.
1"). The Borrowers and the Bank have further entered into an Amendment No. 2 to
Credit Agreement dated as of March 15, 1999 ("Amendment No. 2"). The Borrowers
and the Bank have further entered into Amendment No. 3 to Credit Agreement dated
as of June 30, 1999 ("Amendment No. 3"). The Borrowers and the Bank have further
entered into Amendment No. 4 to Credit Agreement dated as of September 30,1999
("Amendment No. 4"). Capitalized terms used herein and not otherwise defined
herein shall have the meanings given thereto in the Credit Agreement, as
amended. As used herein, the term "Credit Agreement" shall mean the Credit
Agreement, as amended pursuant to Amendment No. 1, Amendment Xx. 0, Xxxxxxxxx
Xx. 0, Xxxxxxxxx Xx. 0 and this Amendment.
B. For good and valuable consideration, the receipt of which is
acknowledged, the Borrowers and the Bank have agreed to further amend the Credit
Agreement, as hereinafter set forth.
SECTION 1. Recitals; Acknowledgement of Indebtedness. The above recitals
are true and correct.
Prior to the receipt of any payments mentioned herein, as of February 18,
2000, the Borrowers are legally, validly, enforceably, jointly and severally
indebted to the Bank under the Facility Documents, without defense, recoupment,
counterclaim or offset as follows:
Principal
---------
Working Capital Loans $ 6,000,000.00
Term Loan $ 11,100,000.00
together with accrued and unpaid interest thereon and all other amounts due and
owing thereunder.
SECTION 2. Amendments. The Facility Documents are, effective as of the
date hereof and subject to the satisfaction of the conditions precedent set
forth in Section 3 hereof, hereby amended as follows:
(a) The following definitions in the Credit Agreement are hereby
amended and modified as follows:
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"Eligible Inventory" means, as of any date of determination thereof,
all Inventory (valued at the lower of cost or its net realizable value as
determined using GAAP) owned by the Borrowers, but excluding (a) all Inventory
in which the Bank does not have a first perfected security interest, subject to
no other Lien prior to or on a parity with such security interest, (b) all
Inventory for which warehouse receipts or documents of title have been issued,
unless the same are delivered to the Bank (c) all Inventory of PSI prior to the
date that UTC is sold and thereafter such inventory of PSI shall no longer be
excluded hereunder, (d) all work-in-progress, packaging and labeling of any
finished Inventory units housed at customer locations, and (e) all other
Inventory deemed ineligible by the Bank because of any circumstance that could,
in the Bank's judgement, reasonably exercised, adversely affect the quality of
such Inventory as collateral security. Notwithstanding the preceding sentence,
"Eligible Inventory" shall not include any Inventory not located at the premises
owned by or leased to or contracted to a Borrower, unless such Inventory is in
transit (and insured) or such Borrower has made a formal financing statement
filing against the consignee of such Inventory and has given any party claiming
of record a security interest in such consignee's Inventory, or other assets
that might include such Inventory, notice of such Borrower's consignment
arrangements with such consignee or has taken equivalent protective steps
satisfactory to the Bank.
"Margin" means the percentage points to be added to the Bank's Prime
Rate or the then applicable LIBOR Rate, as follows:
Libor Margin Prime Rate Margin
------------ -----------------
4.75% 2.5%
(b) Effective as of the sale of UTC , the Borrowers shall have a net
worth of not less than $15,400,000.00.
(c) Except as otherwise provided for herein, the Working Capital
Loans and the Term Loan, plus all accrued and unpaid interest and fees of every
kind due thereon as evidenced in the Credit Agreement, including all amendments,
shall be due and payable in full on December 31, 2000. Interest shall continue
to be payable monthly in accordance with the terms of the Facility Documents;
(d) The $300,000.00 principal payment originally due on the Term
Loan on March 31, 1999, which was deferred to June 30, 1999, and was further
deferred until September 30, 1999, which was further deferred until December 31,
1999, is hereby further deferred to not later than February 29, 2000, or the
Sale of UTC, whichever occurs first. Interest shall continue to be payable
monthly in accordance with the terms of the Facility Documents;
(e) The $450,000.00 principal payment originally due on the Term
Loan on June 30, 1999 which was deferred until September 30, 1999, and which was
further deferred until December 31, 1999 is hereby further deferred to not later
than February 29, 2000, or the sale of UTC, whichever occurs first. Interest
shall continue to be payable monthly in accordance with the terms of the
Facility Documents;
(f) The $450,000.00 principal payment originally due on the Term
Loan on September 30, 1999 and which was deferred until December 31, 1999 is
hereby deferred until not later than February 29, 2000, or the sale of UTC,
whichever occurs first. Interest shall continue to be payable monthly in
accordance with the terms of the Facility Documents;
(g) The $450,000 principal payment originally due on the Term Loan
on December 31, 1999 is hereby further deferred until not later than February
29, 2000, or the sale of UTC, whichever occurs first. Interest shall continue to
be payable monthly in accordance with the terms of the Facility Documents. Any
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other scheduled principal payments due on the Term Loan after December 31, 1999
are also further deferred until December 31, 2000. Interest shall continue to be
payable monthly in accordance with the terms of the Facility Documents.
(h) On or before February 29, 2000 the Borrowers shall cause to be
made a principal payment on the Term Loan, inclusive of the principal payments
referred to in paragraphs (d), (e) (f) and (g), above, in the amount of not less
than $8 million, and a further principal payment of not less than $1 million on
or before June 31, 2000.
(i) In consideration of the deferrals by the Bank set forth herein,
the Borrowers agree to pay an extension fee in the amount of Three Thousand
Dollars per month, ("Extension Fee"), on the first day of each month commencing
on April 1, 2000 until the Loans are paid in full. This extension fee is in
addition to any other fee or payment requirement provided for in the Credit
Agreement, including all amendments, including the previous obligation of the
Borrowers to pay an Extension Fee of Five Thousand Dollars per month through
March, 2000;
(j) In further consideration of the deferral by the Bank as set
forth herein, the Borrowers agree to pay an Accomodation Fee of One Hundred
Thousand Dollars ($100,000), payable upon the earlier of the final maturity of
the Credit Agreement, as amended, or the sale of the capital stock or assets of
Tridex or Progressive. Of this amount, $50,000 will be waived if the sale of the
Ultimate occurs and the principal payment on the Term Note in the amount of
Eight Million Dollars ($8,000,000) as specified above is timely made. The
remaining $50,000 of this Accomodation Fee will be waived if all sums due to
Fleet under the Credit Agreement are paid in full by no later than September 30,
2000.
(k) Within one (1) day after the sale of UTC, the Borrowers shall
deliver to the Bank an updated Borrowing Base Certificate, certified by Tridex's
President or Chief Financial Officer. In the event that the Borrowing Base
Certificate demonstrates that the Working Capital Loans exceed the Borrowing
Base, then the Borrowers shall immediately make such payment as is necessary so
that the Working Capital Loans do not exceed the Borrowing Base.
SECTION 3. Conditions of Effectiveness. This Amendment shall become
effective when, and only when, the Bank shall have received counterparts of this
Amendment executed by the Borrowers and approved by the Bank and a counterpart
executed by the Bank, and Section 2 hereof shall become effective when, and only
when, the Bank shall have additionally received all of the following documents
or items, each document (unless otherwise indicated) being dated the date of
receipt thereof by the Bank (which date shall be the same for all such
documents), in form and substance satisfactory to the Bank:
(a) Certified copies of (i) the resolutions of the Board of
Directors of each of the Borrowers approving this Amendment and the matters
contemplated hereby and (ii) all documents evidencing other necessary corporate
action and governmental approvals, if any, with respect to this Amendment and
the matters contemplated hereby;
(b) A certificate of the Secretary or an Assistant Secretary of each
of the Borrowers certifying the names and true signatures of the officers of the
Borrower authorized to sign this Amendment and the other documents to be
delivered hereunder;
(c) Evidence that Massachusetts Mutual Life Insurance Company and
its Affiliates ("Mass Mutual") have agreed to continue to defer all payments due
(whether principal or interest) on the $11,000,000.00 Subordinated Debt to a
date no earlier than January 1, 2001, and waive any other defaults that
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may exist under the documents and/or instruments evidencing such Subordinated
Debt. In connection with this, the Bank agrees and consents to the granting of a
lien on the corporate stock of Progressive to Mass Mutual, fully subordinate to
the interests of Fleet; and
(d) An opinion of counsel to the Borrowers in form and substance
acceptable to the Bank.
SECTION 4. Representations and Warranties of Each of the Borrowers. Each
of the representations and warranties made by each of the Borrowers in the
Facility Documents or otherwise made by or on behalf of the Borrowers in
connection therewith after the date thereof shall have been true and correct in
all respects on the date when made and shall also be true and correct in all
material respects on the date hereof, except to the extent of changes resulting
from transactions contemplated or permitted by the Facility Documents and
changes occurring in the ordinary course of business that singly or in the
aggregate are not materially adverse.
SECTION 5. Reaffirmation of Facility Documents. The Borrowers agree that:
(a) This Amendment and each of the other Facility Documents as
amended hereby, constitute legal, valid and binding obligations of the Borrowers
enforceable against each Borrower in accordance with their respective terms.
(b) The Credit Agreement and the Security Agreement create valid and
perfected first priority security interests and liens in and to the Collateral
covered thereby enforceable against all third parties in all jurisdictions,
securing the payment of all Obligations, and the execution, delivery and
performance of this Amendment do not adversely affect the aforesaid security
interests and liens of the Credit Agreement and the Security Agreement.
(c) Except as set forth in the Credit Agreement, there is no pending
or threatened action or proceeding affecting the Borrowers or any of their
Subsidiaries before any court, governmental agency or arbitrator, which may
materially adversely affect the financial condition or operations of the
Borrowers or any of their Subsidiaries. There is no pending or threatened action
or proceeding affecting the Borrowers or any of their Subsidiaries before any
court, governmental agency or arbitrator which purports to affect the legality,
validity or enforceability of this Amendment or any of the other Facility
Documents, as amended hereby.
(d) The Facility Documents existing on the date hereof constitute
legal, valid and binding obligations of the Borrowers, enforceable against the
Borrowers in accordance with their respective terms. After giving effect to the
amendments provided for in this Amendment, no event has occurred and is
continuing which constitutes a Default or an Event of Default.
SECTION 6. Reference to and Effect on the Facility Documents.
(a) Upon the effectiveness of Section 2 hereof, on and after the
date hereof each reference in the Credit Agreement to "this Agreement,"
"hereunder, "hereof," "herein" or words of like import, and each reference in
any Facility Documents to the Credit Agreement or any other Facility Document,
shall mean and be a reference to the Credit Agreement or such other Facility
Document as amended hereby.
(b) Except as specifically amended or modified pursuant to this
Amendment, the provisions of the Credit Agreement, the Notes and the other
Facility Documents shall remain in full force and effect and are hereby ratified
and confirmed. Without limiting the generality of the foregoing, the Credit
Agreement, the Security Agreement and all of the Collateral described therein do
and shall continue to secure the payment of all
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indebtedness and liabilities of the Borrowers to the Bank under the Credit
Agreement and the other Facility Documents, as amended hereby.
(c) The execution, delivery and effectiveness of this Amendment
shall not, except as expressly provided herein, operate as a waiver of any
right, power or remedy of the Bank under any of the Facility Documents, nor
constitute a waiver of any provision of any of the Facility Documents.
SECTION 7. Costs, Expenses and Taxes. Without limiting the foregoing or
anything else contained herein, each of the Borrowers agrees to pay on demand
all reasonable costs and expenses of the Bank in connection with the
preparation, execution and delivery of this Amendment and the other instruments
and documents to be delivered hereunder, including, without limitation, the
reasonable costs and expenses for the performance of a field audit, the
reasonable fees and out-of-pocket expenses of counsel for the Bank (including
the allocated costs of in-house counsel) with respect thereto and with respect
to advising the Bank as to its rights and responsibilities hereunder and
thereunder. Each of the Borrowers further agrees to pay on demand all reasonable
costs and expenses, if any (including, without limitation, reasonable counsel
fees and expenses, including the allocated costs of in-house counsel), in
connection with the enforcement (whether through negotiations, legal proceedings
or otherwise) of this Amendment and the other instruments and documents to be
delivered hereunder, including, without limitation, reasonable counsel fees
(including the allocated costs of in-house counsel) and expenses in connection
with the enforcement of its rights. In addition, each of the Borrowers shall pay
any and all taxes payable or determined to be payable in connection with the
execution and delivery of this Amendment and the other instruments and documents
to be delivered hereunder, and agrees to save the Bank harmless from and against
any and all liabilities with respect to or resulting from any delay in paying or
omission to pay such taxes.
SECTION 8. Waivers. The Borrowers waive, release and discharge any and all
claims or causes of action of any kind whatsoever, whether at law or in equity,
arising on or prior to the date hereof, which the Borrowers may have against the
Bank, its affiliates, successors and assigns, agents, directors, employees and
counsel, in connection with the Loans. The waivers and releases made herein
include the Borrowers' waiver of any damages which may have been, or may in the
future be, caused to the Borrowers, their properties or business prospects
because of the actions waived and released and the agreements made herein,
including, without limitation, any actual or implicit, direct or indirect,
incidental or consequential damages suffered by the Borrowers therefrom,
including, but not limited to: (a) lost profits; (b) loss of business
opportunity; (c) increased financing costs; (d) increased legal and other
administrative fees; and (e) damages to business reputation.
SECTION 9. Execution in Counterparts. This Amendment may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed to be
an original and all of which taken together shall constitute but one and the
same instrument.
SECTION 10. Governing Law. This Amendment shall be governed by, and
construed in accordance with, the laws of the State of Connecticut, without
reference to Connecticut's choice of law rules.
SECTION 11. COMMERCIAL WAIVER. EACH BORROWER ACKNOWLEDGES THAT THE LOANS
EVIDENCED BY THE NOTES ARE FOR COMMERCIAL PURPOSES AND WAIVES ANY RIGHT TO
NOTICE AND HEARING UNDER SECTIONS 52-278a THROUGH 52-278n OF THE CONNECTICUT
GENERAL STATUTES AS NOW OR HEREAFTER AMENDED AND AUTHORIZES THE ATTORNEY OF THE
BANK, OR ANY SUCCESSOR THERETO, TO ISSUE A WRIT OF PREJUDGMENT REMEDY WITHOUT
COURT ORDER. FURTHER, EACH BORROWER HEREBY
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WAIVES TO THE EXTEND PERMITTED BY LAW, THE BENEFITS OF ALL VALUATION,
APPRAISEMENTS, HOMESTEAD, EXEMPTION, STAY, REDEMPTION AND MORATORIUM LAWS NOW IN
FORCE OR WHICH MAY HEREAFTER BECOME LAWS. EACH BORROWER ACKNOWLEDGES THAT IT
MAKES THESE WAIVERS AND THE WAIVERS CONTAINED IN SECTION 10.8 OF THE CREDIT
AGREEMENT KNOWINGLY, VOLUNTARILY AND AFTER EXTENSIVE CONSIDERATION OF THE
RAMIFICATIONS OF THESE WAIVERS WITH ITS ATTORNEYS.
SECTION 12. WAIVER OF JURY TRIAL. BECAUSE DISPUTES ARISING IN CONNECTION
WITH COMPLEX FINANCIAL TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED
BY AN EXPERIENCED AND EXPERT PERSON AND THE BORROWERS AND BANK WISH APPLICABLE
STATE AND FEDERAL LAWS TO APPLY (RATHER THAN ARBITRATION RULES), THE BORROWERS
AND THE BANK DESIRE THAT THEIR DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH
APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE BEST COMBINATION OF THE BENEFITS OF
THE JUDICIAL SYSTEM AND OF ARBITRATION, THE BORROWERS AND THE BANK HERETO WAIVE
ALL RIGHT TO TRIAL BY JURY IN ANY ACTIONS, SUIT, OR PROCEEDING BROUGHT TO
RESOLVE ANY DISPUTE, WHETHER IN CONTRACT, TORT, OR OTHERWISE ARISING OUT OF,
CONNECTED WITH, RELATED TO, OR INCIDENTAL TO, THIS AMENDMENT OR ANY OF THE OTHER
FACILITY DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
SECTION 13. Further Assurances.
(a) Regarding Preservation of Collateral. The Borrowers will execute
and deliver to the Bank such further documents, instruments, assignments and
other writings, and will do such other acts necessary or desirable, to preserve
and protect the Collateral at any time securing or intended to secure the
Obligations, as the Bank may reasonably require.
(b) Regarding this Amendment. The Borrowers will cooperate with, and
will do such further acts and execute such further instruments and documents as
the Bank shall reasonably request to carry out to its satisfaction the
transactions contemplated by this Amendment and the other Facility Documents.
SECTION 14. Notices. Notices given after the date hereof shall be
delivered to the parties hereto at their respective "Address for Notices" on the
signature page of this Amendment.
[Remainder of Page Left Intentionally Blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized, as of the date
first written above.
TRIDEX CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------
Xxxxxx X. Xxxxxxxx
Its Treasurer
Duly Authorized
Address for Notices:
00 Xxxxxx Xxxx
Xxxxxxxx, XX 00000
ULTIMATE TECHNOLOGY CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------
Xxxxxx X. Xxxxxxxx
Its Treasurer
Duly Authorized
Address for Notices:
00 Xxxxxx Xxxx
Xxxxxxxx, XX 00000
PROGRESSIVE SOFTWARE, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------
Xxxxxx X. Xxxxxxxx
Its Treasurer
Duly Authorized
Address for Notices:
00 Xxxxxx Xxxx
Xxxxxxxx, XX 00000
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FLEET NATIONAL BANK
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------------
Xxxxxxx X. Xxxxx
Its Vice President
Duly Authorized
Address for Notices:
Fleet National Bank
000 Xxxx Xxxxxx
XX XX H21B
Xxxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
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