Exhibit 10.21
CONSENT AND NINTH AMENDMENT TO CREDIT AGREEMENT
This CONSENT AND NINTH AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is
effective as of February 10, 2003 and is entered into by and among Opinion
Research Corporation, a Delaware corporation ("Parent"), ORC INC., a Delaware
corporation ("ORC", Parent and ORC are sometimes collectively referred to herein
as the "Borrowers" and individually as a "Borrower"), the Subsidiaries of
Borrowers party hereto, ▇▇▇▇▇▇ Financial, Inc., in its capacity as Agent for the
Lenders party to the Credit Agreement described below ("Agent"), and the Lenders
which are signatories hereto.
WHEREAS, Agent, Lenders and Borrowers are parties to a certain Credit
Agreement dated as of May 26, 1999 (as such agreement has from time to time been
amended, supplemented or otherwise modified, the "Agreement"); and
WHEREAS, the parties desire to amend the Agreement as hereinafter set
forth.
NOW, THEREFORE, in consideration of the mutual conditions and agreements
set forth in the Agreement and in this Amendment, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
1. Definitions. Capitalized terms used in this Amendment, unless
otherwise defined herein, shall have the meaning ascribed to such terms in the
Agreement.
2. Amendments. Subject to the conditions set forth below, the Agreement
is amended as follows:
(a) Section 1.1(B)(1) of the Credit Agreement is amended by deleting the
first sentence and substituting the following therefor:
"Each Lender agrees, severally and not jointly, to lend to Borrowers
from the Closing Date to the Expiry Date its Pro Rata Share of the loans
requested by Parent, on behalf of Borrowers, to be made by Lenders under this
subsection 1.1(B), up to an aggregate maximum for all Lenders of $16,500,000 (as
the same may be reduced and otherwise in effect from time to time hereunder, the
"Revolving Loan Commitment")."
The parties hereto hereby agree that the effect of the foregoing amendment is to
cause an immediate reduction of the Revolving Loan Commitment, effective as of
the date hereof, from $19,000,000 to $16,500,000. In furtherance of the
provisions of this Section 2(a), the parties hereto hereby agree that each
Lender's commitment to make Revolving Loans shall be amended and restated,
effective as of the date hereof, as set forth on Schedule 1 hereto. The parties
hereto hereby agree that the defined term "Pro Rata Share" set forth in
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Section 10.1 of the Credit Agreement shall be deemed to be amended in all
relevant respects to give effect to the terms of the preceding sentence.
(b) The definition of "Base Rate Margin" in Section 1.2(A) of the Credit
Agreement shall be amended in its entirety and as so amended shall read as
follows:
"Base Rate Margin" shall mean, as of February 10, 2003, two and one-half
percent (2.50%) per annum.
(c) The definition of "LIBOR Margin" in Section 1.2(A) of the Credit
Agreement shall be amended in its entirety and as so amended shall read as
follows:
"LIBOR Margin" shall mean, as of February 10, 2003, three and
three-quarters percent (3.75%) per annum.
(d) Section 4.3 of the Agreement shall be amended by (i) deleting the
dollar amount "$17,750,000" set forth opposite the testing date June 30, 2003
and inserting in lieu thereof the dollar amount "$15,000,000", (ii) deleting the
dollar amount "$17,750,000" set forth opposite the testing date September 30,
2003 and inserting in lieu thereof the dollar amount "$15,500,000" and (iii)
deleting the dollar amount "$18,750,000" set forth opposite the testing date
December 31, 2003 and inserting in lieu thereof the dollar amount "$16,000,000".
(e) Subsection (B) of Section 4.4 of the Agreement shall be amended in its
entirety and as so amended shall read as follows:
"(B) Borrowers shall not permit Fixed Charge Coverage for any twelve (12)
month period ending on the last day of any calendar quarter to be less than: (i)
1.05 for each of the calendar quarters ending March 31, 2002, June 30, 2002,
September 30, 2002, December 31, 2002, March 31, 2003, June 30, 2003, September
30, 2003, (ii) 1.10 for the calendar quarter ending December 31, 2003 and (iii)
1.20 for any other calendar quarter."
3. Consent. Borrowers have informed Agent and Lenders that Social and
Health Services, Ltd., a Maryland corporation and indirect wholly-owned
Subsidiary of Borrowers ("SHS"), has created ORC Telecommunications Ltd., a
Maryland corporation and wholly-owned Subsidiary of SHS ("ORC Telecom"). Please
be advised that the Agent and Requisite Lenders hereby consent to the creation
of ORC Telecom, provided (A) ORC Telecom shall only be permitted to be
capitalized with cash proceeds in an amount not to exceed $100,000 contributed
to ORC Telecom by SHS on or prior to the date hereof, (B) ORC Telecom shall only
be permitted to engage in the business of (i) maintaining its corporate
existence and matters related thereto and (ii) leasing equipment and software
pursuant to that certain Lease dated as of _______________, ____ between ORC
Telecom and Avaya, Inc. together with matters related thereto, (C) Borrowers and
their Subsidiaries shall execute, acknowledge and deliver or shall cause to be
done, executed, acknowledged and delivered, all such acts, documents and
instruments as reasonably may be required by Agent in order to effectuate fully
the consent provided for herein (including, without limitation, the execution of
all documents, instruments
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and agreements described in subsections 2.5(A) and 2.5(B) of the Credit
Agreement), and (D) the Subordinated Lender shall have consented to the creation
of ORC Telecom by SHS and to the terms and conditions of this Amendment to the
extent it has the right to do so.
The foregoing consent is specifically limited in time and scope to the
individual occurrences described above and shall not be deemed to extend or
apply to any other event or occurrence in existence as of the date hereof
(including, without limitation, any event or occurrence not listed on any
Schedule to the Credit Agreement) or arising hereafter.
4. Additional Covenants. Borrowers hereby covenant and agree as follows:
(a) In the event that (i) an Event of Default occurs under Section 6.1(A)
or (ii) Borrowers breach any of the financial covenants as set forth in Sections
4.1, 4.3, 4.4, 4.5, 4.6, and 4.7 of the Agreement, within forty-five (45) days
after (A) an Event of Default occurs under Section 6.1(A) or (B) the financial
statements for the respective period set forth in clause (ii) above are required
to be delivered pursuant to Section 4.8 of the Agreement, the Borrower shall:
(x) engage, at Borrower's expense, an investment banker selected by
Borrowers and acceptable to Agent and the Requisite Lenders, for the
purpose of conducting the sale of ORC ProTel, Inc. Within such time period,
the Agent, Requisite Lenders, and Borrowers shall agree upon a mutually
satisfactory timeline for completing such sale, including, without
limitation, establishing milestone dates for, among other things,
completing marketing materials, soliciting bids, completing due diligence
and establishing closing dates; or
(y) engage, at Borrower's expense, a consultant or financial advisor
selected by Borrowers and acceptable to Agent and Requisite Lenders (the
"Advisor"), to, among other things: analyze the business and operations of
Borrowers and their Subsidiaries, identify cost cutting measures, conduct
analysis of United States market research business, and formulate a plan
for effectuating such measures (collectively, the "Plan"). Borrowers shall
cause the Advisor to prepare and issue the Plan and to deliver to Agent and
Lenders a copy thereof within thirty (30) days after the Advisor is
engaged. Promptly thereafter, Borrowers, Agent, and Lenders shall meet to
review and discuss the Plan, after which Borrowers shall promptly and with
due diligence implement the recommendations set forth in such plan.
The foregoing shall not limit or impair any rights, privileges and/or
remedies available to Agent and Lenders under the Loan Documents and
applicable law as a result of any such Event of Default, all of which are
expressly reserved.
(b) Not later than May 1, 2003, Borrower shall obtain and deliver to Agent
a report of an independent collateral auditor satisfactory to Agent (which may
be, or be affiliated with, a Lender) with respect to the accounts and inventory
of the Borrowers (including verification with
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respect to the amount, aging, identity and credit of the respective account
debtors and the billing practices of Borrower and verification as to the value,
location and respective types of inventory).
5. Conditions. The effectiveness of this Amendment is subject to the
following conditions precedent:
(a) Borrowers shall have executed and delivered this Amendment, and such
other documents and instruments as Agent may require shall have been executed
and/or delivered to Agent (including, without limitation, true, complete and
correct copies of fully executed documents amending the Subordinated Loan
Agreement in form and substance acceptable to Agent and Required Lenders);
(b) All proceedings taken in connection with the transactions contemplated
by this Amendment and all documents, instruments and other legal matters
incident thereto shall be satisfactory to Agent and its legal counsel;
(c) No Default or Event of Default shall have occurred and be continuing;
(d) The representations and warranties set forth in Section 5 below are
true, correct and complete; and
(e) Borrowers shall have paid to Agent a non-refundable amendment fee in
the amount of 0.50% of the "Aggregate Commitment", such amendment fee to be
shared by the Lenders who have executed this Amendment pro rata based on each
Lender's respective share of the Aggregate Commitment (for purposes of this
clause (e), "Aggregate Commitment" shall mean, with respect to the Lenders who
have executed this Amendment, the aggregate Revolving Loan Commitment of such
Lenders plus the outstanding principal amount of Term Loans of such Lenders, in
each case as in effect on the date hereof.)
6. Representations and Warranties. To induce Agent and Lenders to enter
into this Amendment, each of the Borrowers represents and warrants to Agent and
Lenders:
(a) that the execution, delivery and performance of this Amendment has
been duly authorized by all requisite corporate action on the part of such
Borrower and that this Amendment has been duly executed and delivered by such
Borrower; and
(b) that each of the representations and warranties set forth in the
Agreement and the Subordinated Loan Agreement (in each instance, other than
those which, by their terms, specifically are made as of certain date prior to
the date hereof) are true and correct in all material respects as of the date
hereof.
7. Severability. Any provision of this Amendment held by a court of
competent jurisdiction to be invalid or unenforceable shall not impair or
invalidate the remainder of this Amendment and the effect thereof shall be
confined to the provision so held to be invalid or unenforceable.
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8. References. Any reference to the Agreement contained in any document,
instrument or agreement executed in connection with the Agreement shall be
deemed to be a reference to the Agreement as modified by this Amendment.
9. Counterparts. This Amendment may be executed in one or more
counterparts, each of which shall constitute an original, but all of which taken
together shall be one and the same instrument.
10. Ratification. The terms and provisions set forth in this Amendment
shall modify and supersede all inconsistent terms and provisions of the
Agreement and shall not be deemed to be a consent to the modification or waiver
of any other term or condition of the Agreement. Except as expressly modified
and superseded by this Amendment, the terms and provisions of the Agreement are
ratified and confirmed and shall continue in full force and effect.
11. Reaffirmation. Each Loan Party party hereto has executed and delivered
one or more of the Security Documents and/or the other Loan Documents as debtor,
grantor, pledgor, guarantor, assignor, or in other similar capacities in which
such Person has granted liens or security interests in their respective
properties or otherwise acted as an accommodation party or guarantor, as the
case may be. Each Loan Party party hereto hereby ratifies and reaffirms all of
its respective payment and performance obligations, contingent or otherwise,
under the Security Documents and any other Loan Documents to which it is a party
and, to the extent any such Person has granted liens on or security interests in
any of their respective properties pursuant to any of the Security Documents or
any of the other Loan Documents as security for or otherwise guaranteed the
Obligations under or with respect to the Agreement or any other Loan Documents,
hereby ratifies and reaffirms such payment and performance obligations,
guarantee and grant of security interests and liens and confirms and agrees that
such security interests and liens hereafter secure all of the Obligations. Each
Loan Party party hereto agrees that each of the Security Documents and each
other Loan Document remains in full force and effect and is hereby ratified and
reaffirmed, and agrees that the Amendment shall not (i) operate as a waiver of
any right, power or remedy of Agent or Lenders under the Loan Documents or (ii)
constitute a waiver of any provision of any of the Loan Documents or serve to
effect a novation of the Obligations.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed under seal and delivered by their respective duly authorized
officers on the date first written above.
AGENT and LENDERS: BORROWERS:
▇▇▇▇▇▇ Financial, Inc., OPINION RESEARCH CORPORATION,
as Agent and as a Lender a Delaware corporation
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇
----------------------------- -----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇
--------------------------- ---------------------------------
Title: Senior Vice President Title: Executive Vice President
-------------------------- --------------------------------
FLEET NATIONAL BANK, ORC INC.,
as a Lender a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------- -----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------- ---------------------------------
Title: Managed Assets Officer Title: President
-------------------------- --------------------------------
WACHOVIA BANK, NATIONAL ASSOCIATION,
as a Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------
Title: Managing Director
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▇▇▇▇▇▇▇ ▇▇▇▇▇ BUSINESS FINANCIAL SERVICES, INC.,
as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇
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Title: Vice President
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PNC BANK, NATIONAL ASSOCIATION,
as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Title: Senior Vice President
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Consent and Ninth Amendment to Credit Agreement
SUBSIDIARIES:
ORC TELESERVICE CORP.,
a Delaware corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Secretary
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ORC PROTEL, INC.,
a Delaware corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------
Title: Secretary
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MACRO INTERNATIONAL INC.,
a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇
---------------------------
Title: Secretary
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SOCIAL AND HEALTH SERVICES, LTD.,
a Maryland corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------
Title: Secretary
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Consent and Ninth Amendment to Credit Agreement