Exhibit 10.24
THIRD LOAN MODIFICATION AGREEMENT
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This Third Loan Modification Agreement ("this Agreement") is made as of
December 31, 1996 between Individual, Inc., a Delaware corporation (the
"Borrower") and Fleet National Bank (successor by merger to Fleet Bank of
Massachusetts, N.A.) (the "Bank"). For good and valuable consideration, receipt
and sufficiency of which are hereby acknowledged, the Borrower and the Bank act
and agree as follows:
1. Reference is made to: (i) that certain letter agreement dated September
22, 1994 between the Borrower and Fleet Bank of Massachusetts, N.A. (the Bank
having succeeded by merger to the rights of Fleet Bank of Massachusetts, N.A.
thereunder), as amended by Consent and Loan Modification Agreement dated as of
November 29, 1995 and by Second Loan Modification Agreement dated as of December
29, 1995 (as so amended, the "Letter Agreement"); (ii) that certain $3,500,000
face principal amount promissory note dated September 22, 1994 (the "Revolving
Note") made by the Borrower and payable to the order of Fleet Bank of
Massachusetts, N.A. (the Bank having succeeded by merger to the rights of Fleet
Bank of Massachusetts, N.A. thereunder); (iii) that certain $1,000,000 face
principal amount promissory note dated September 22, 1994 (the "Facility One
Term Note") made by Borrower and payable to the order of Fleet Bank of
Massachusetts, N.A. (the Bank having succeeded by merger to the rights of Fleet
Bank of Massachusetts, N.A. thereunder); (iv) that certain $1,000,000 face
principal amount promissory note dated December 29, 1995 (the "Facility Two Term
Note") made by the Borrower and payable to the order of Fleet Bank of
Massachusetts, N.A. (the Bank having succeeded by merger to the rights of Fleet
Bank of Massachusetts, N.A. thereunder); (v) that certain Inventory and Accounts
Receivable Security Agreement dated September 22, 1994 (the "IAR Security
Agreement") given by the Borrower to Fleet Bank of Massachusetts, N.A. (the Bank
having succeeded by merger to the rights of Fleet Bank of Massachusetts, N.A.
thereunder); (vi) that certain Supplementary Security Agreement - Security
Interest in Goods and Chattels dated September 22, 1994 (the "Supplementary
Security Agreement") given by the Borrower to Fleet Bank of Massachusetts, N.A.
(the Bank having succeeded by merger to the rights of Fleet Bank of
Massachusetts, N.A. thereunder); and (vii) that certain $2,000,000 face
principal amount promissory note of even date herewith (the "Facility Three Term
Note") made by the Borrower and payable to the order of the Bank. The Letter
Agreement, the Revolving Note, the Facility One Term Note, the Facility Two Term
Note, the Facility Three Term Note, the IAR Security Agreement and the
Supplementary Security Agreement are hereinafter collectively referred to as the
"Financing Documents." The aforesaid December 29, 1995 Second Loan Modification
Agreement is hereinafter referred to as the "Second Modification."
2. The Letter Agreement is hereby amended, effective as of the date
hereof:
a. By providing that all references therein to the "Bank" will be
deemed to refer to Fleet National Bank.
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b. By deleting the word "and" appearing immediately before clause
(iv) of Section 1.1 of the Letter Agreement (as inserted by the Second
Modification).
c. By deleting the period at the end of Section 1.1 of the Letter
Agreement (as amended by the Second Modification) and by substituting in its
stead the following:
", and (v) that certain $2,000,000 principal amount promissory
note (the 'Facility Three Term Note') dated December 31, 1996
made by the Borrower and payable to the order of the Bank."
d. By inserting into the penultimate sentence of Section 1.2 of the
Letter Agreement, immediately after the word "presumptive," the following:
"(but not conclusive)"
e. By inserting into the penultimate sentence of Section 1.4 of the
Letter Agreement, immediately after the word "presumptive," the following:
"(but not conclusive)"
f. By inserting into the penultimate sentence of Section 1.5.1 of the
Letter Agreement (said Section 1.5.1 having been inserted by the Second
Modification), immediately after the word "presumptive," the following:
"(but not conclusively)"
g. By inserting into each of the first, third, fifth, seventh, ninth,
eleventh, thirteenth, fifteenth and seventeenth sentences of Section 1.5.2 of
the Letter Agreement (said Section 1.5.2 having been inserted by the Second
Modification), immediately after the words "hereinafter referred to," in each
such sentence the following:
"in this Section 1.5.2"
h. By inserting into Article I of the Letter Agreement, immediately
after Sections 1.5.1 and 1.5.2 thereof (said Sections 1.5.1 and 1.5.2 having
been inserted by the Second Modification), the following:
"1.5.3. Facility Three Term Loans; Facility Three Term Note.
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Without limitation of the above-described provisions for Facility
One Term Loans and Facility Two Term Loans, the Bank may also
make one or more additional loans (the 'Facility Three Term
Loans') to the Borrower in an aggregate principal amount up to
$2,000,000. Subject to the terms of this letter agreement,
Facility Three Term Loans shall be made, at the request of the
Borrower, in order to finance costs of Qualifying Equipment
acquired by the Borrower after October 1, 1996; provided that (i)
no Facility Three Term Loan will be made after December 31, 1997;
(ii) the
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aggregate original principal amounts of all Facility
Three Term Loans will not exceed $2,000,000; and (iii) no
Facility Three Term Loan will be in an amount more than 80% of
the invoiced actual costs of the tangible property constituting
the items of Qualifying Equipment with respect to which such
Facility Three Term Loan is made (excluding taxes, shipping,
software, installation charges and other 'soft costs'). Prior to
the making of each Facility Three Term Loan, and as a
precondition thereto, the Borrower will provide the Bank with:
(i) invoices supporting the costs of the relevant Qualifying
Equipment; (ii) such evidence as the Bank may reasonably require
showing that the Qualifying Equipment has been installed at the
Borrower's Burlington, MA or San Francisco, CA premises, has
become fully operational, has been paid for by the Borrower and
is owned by the Borrower free of all liens and interests of any
other Person (other than the security interest of the Bank
pursuant to the Security Agreement); (iii) evidence satisfactory
to the Bank that the Qualifying Equipment is fully insured
against casualty loss, with insurance naming the Bank as secured
party and first loss payee; and (iv) if not previously provided,
Uniform Commercial Code Financing Statements satisfactory to the
Bank covering each location in which Qualifying Equipment is to
be located. The Facility Three Term Loans will be evidenced by
the Facility Three Term Note and interest on the Facility Three
Term Loans will be payable at the times and at the rate provided
for in the Facility Three Term Note. Overdue principal of any
Facility Three Term Loan and, to the extent permitted by law,
overdue interest shall bear interest at a fluctuating rate per
annum which at all times shall be equal to the sum of (i) two
(2%) percent per annum plus (ii) the per annum rate otherwise
payable under the Facility Three Term Note (but in no event in
excess of the maximum rate from time to their permitted by then
applicable law), compounded monthly and payable on demand. The
Borrower hereby irrevocably authorizes the Bank to make or cause
to be made, on a schedule attached to the Facility Three Term
Note or on the books of the Bank, at or following the time of
making each Facility Three Term Loan and of receiving any payment
of principal thereof, an appropriate notation reflecting such
transaction and the then aggregate unpaid principal balance of
the Facility Three Term Loans. The amount so noted shall
constitute presumptive (but not conclusive) evidence as to the
amount owed by the Borrower with respect to principal of the
Facility Three Term Loans. Failure of the Bank to make any such
notation shall not, however, affect any obligation of the
Borrower
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or any right of the Bank hereunder or under the Facility
Three Term Note.
1.5.4. Principal Repayment of Facility Three Term Loans. The
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Facility Three Term Loans made at any time through and including
March 31, 1997 are hereinafter referred to in this Section 1.5.4
as the 'Tranche A Term Loans'. Principal of the Tranche A Term
Loans shall be repaid by the Borrower to the Bank in 36 equal
consecutive monthly installments (each in an amount equal to
1/36th of the aggregate principal amount of the Tranche A Term
Loans outstanding at the close of business on March 31, 1997),
such installments to commence April 1, 1997 and to continue
thereafter on the first day of each month through and including
March 1, 2000. The Facility Three Term Loans made at any time
during the period beginning on April 1, 1997 and continuing
through and including June 30, 1997 are hereinafter referred to
in this Section 1.5.4 as the 'Tranche B Term Loans'. Principal
of the Tranche B Term Loans shall be repaid by the Borrower to
the Bank in 36 equal consecutive monthly installments (each in an
amount equal to 1/36th of the aggregate principal amount of the
Tranche B Term Loans outstanding at the close of business on June
30, 1997), such installments to commence July 1, 1997 and to
continue thereafter through and including June 1, 2000. The
Facility Three Term Loans made at any time during the period
beginning on July 1, 1997 and continuing through and including
September 30, 1997 are hereinafter referred to in this Section
1.5.4 as the 'Tranche C Term Loans'. Principal of the Tranche C
Term Loans shall be repaid by the Borrower to the Bank in 36
equal consecutive monthly installments (each in an amount equal
to 1/36th of the aggregate principal amount of the Tranche C Term
Loans outstanding at the close of business on September 30,
1996), such installments to commence October 1, 1997 arid to
continue on the first day of each month thereafter through and
including September 1, 2000. The Facility Three Term Loans made
at any time on or after October 1, 1997 are hereinafter referred
to in this Section 1.5.4 as the 'Tranche D Term Loans'.
Principal of the Tranche D Term Loans shall be repaid by the
Borrower to the Bank in 36 equal consecutive monthly installments
(each in an amount equal to 1/36th of the aggregate principal
amount of the Tranche D Term Loans outstanding at the close of
business on December 31, 1997), such installments to commence
January 1, 1998 and to continue thereafter on the first day of
each month through and including December 1, 2000. The Borrower
may prepay, at any time or from time to time, without premium or
penalty, the whole or any portion of the Facility Three Term
Loans; provided that each such
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principal prepayment shall be accompanied by payment of all
interest under the Facility Three Term Note accrued but unpaid to
the date of payment. Any partial prepayment of principal of the
Facility Three Term Loans will be applied to installments of
principal of the Facility Three Term Loans thereafter coming due,
in inverse order of normal maturity. Amounts paid or prepaid on
the Facility Three Term Loans will not be available for
reborrowing."
i. By deleting from the third sentence of the third paragraph of
Section 1.6 of the Letter Agreement the words "at its Principal Office, in
immediately available funds" and by substituting in their stead the following:
", in immediately available funds, at the offices of the Bank at
75 State Street, Boston, MA 02109, or at such other address as
the Bank may from time to time designate"
j. By deleting in its entirety clause (ii) of Section 3.6 of the
Letter Agreement and by substituting in its stead the following:
"(ii) within 45 days after the end of each fiscal quarter, a copy
of the Borrower's Quarterly Report on Form 10-Q for such fiscal
quarter. If, for any reason, the Borrower does not prepare a
Quarterly Report on Form 10-Q for any fiscal quarter, then for
such fiscal quarter the Borrower will provide to the Bank (within
45 days following the end of such fiscal quarter) consolidated
(and, if required by the Bank, consolidating) balance sheets of
the Borrower and its Subsidiaries and related consolidated (and,
if required by the Bank, consolidating) statements of income and
cash flow, unaudited but complete and accurate and prepared in
accordance with generally accepted accounting principles fairly
presenting the financial condition of the Borrower as at the
dates thereof and for the periods covered thereby (except that
such quarterly statements need not contain footnotes) and
certified as accurate (subject to normal year-end audit
adjustments, which shall not be material) by the chief financial
officer of the Borrower, such balance sheets to be as at the end
of each such fiscal quarter and such statements of income and
cash flow to be for such fiscal quarter and for the year to date,
in each case together with a comparison to budget."
k. By deleting from clause (iii) of Section 3.6 of the Letter
Agreement the word "monthly" and by substituting in its stead the following:
"quarterly"
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1. By adding to clause (iii) of Section 3.6 of the Letter Agreement,
at the end thereof, the following:
"The Borrower will also provide to the Bank (A) within 45 days
after the end of each fiscal quarter, an aging report as to
Receivables on a form reasonably satisfactory to the Bank and (B)
within 30 days after the end of each month, a monthly Earned
Revenue analysis report on a form reasonably satisfactory to the
Bank."
m. By deleting from Section 3.7 of the Letter Agreement the words
"not less than 1.25 to 1" and by substituting in their stead the following:
"not less than 2.0 to 1"
n. By deleting in their entireties Sections 3.8 and 3.9 of the Letter
Agreement and by substituting in their stead the following:
"3.8. Leverage Ratio. The Borrower will maintain, as at the end
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of each fiscal quarter (commencing December 31, 1996), a Leverage
Ratio of not more than 1.0 to 1. As determined at any date, the
'Leverage Ratio' means the ratio of (x) all Indebtedness of the
Borrower and/or any of its Subsidiaries then outstanding (other
than any such Indebtedness which constitutes Deferred Revenue or
which has been expressly subordinated to the Bank's Loans by
instruments satisfactory in form and substance to the Bank) to
(y) the Adjusted Tangible Net Worth of the Borrower and
Subsidiaries at such date.
3.9 Net Worth. The Borrower will maintain, as at the end of
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each fiscal quarter, an Adjusted Tangible Net Worth which shall
not be less than the following: as at December 31, 1996 - not
less than $15,000,000; and as at March 31, 1997 and as at each
fiscal quarter-end thereafter - not less than $5,000,000."
o. By deleting from clause (b) of Section 5.2 of the Letter Agreement
the words "Term Loan Facilities" (such words having been inserted by the Second
Modification) and by substituting in their stead the following:
"the facilities for Term Loans"
p. By deleting from clause (c) of Section 5.2 of the Letter Agreement
the words "under either or both of the Term Notes" (such words having been
inserted by the Second Modification) and by substituting in their stead the
following:
"under any or all of the Term Loans"
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q. By deleting from the Borrower's notice address in Section 6.6 of
the Letter Agreement the words "Bruce D. Glabe, Vice President and Chief
Financial Officer" and by substituting in their stead the following:
"Chief Financial Officer"
r. By deleting from Section 6.6 of the Letter Agreement the words
"Fleet Bank of Massachusetts, N.A." and by substituting in their stead the
following:
"Fleet National Bank"
s. By inserting into the definition of "Principal Office" appearing,
in Section 7.1 of the Letter Agreement, immediately after the words "of the
Bank," the following:
"in Boston, MA"
t. By inserting into the definition of "Qualifying Equipment"
appearing in Section 7.1 of the Letter Agreement, immediately after the words
"October 1, 1995" (such words having been inserted by the Second Modification),
the following:
"and except that items of Qualifying Equipment supporting
Facility Three Term Loans must have been purchased on or after
October 1, 1996"
u. By deleting from Section 7.1 of the Letter Agreement the
definitions of "Term Loans" and "Term Notes" (inserted into Section 7.1 of the
Letter Agreement by the Second Modification) and by substituting in their stead
the following:
"'Term Loans' - Collectively, the Facility One Term Loans, the
Facility Two Term Loans and the Facility Three Term Loans.
'Term Notes' - Collectively, the Facility One Term Note, the
Facility Two Term Note and the Facility Three Term Note."
3. Each of IAR Security Agreement, the Supplementary Security Agreement,
the Revolving Note, the Facility One Term Note and the Facility Two Term Note is
hereby modified by providing that all references therein to the "Bank" or to
"Fleet Bank of Massachusetts, N.A." will be deemed to refer to Fleet National
Bank.
4. The Revolving Note is hereby amended by inserting into the last
sentence of the fifth paragraph thereof, immediately after the word
"presumptive," the following:
"(but not conclusive)"
5. The Facility One Term Note is hereby amended by inserting into the last
sentence of the fourteenth paragraph thereof, immediately after the word
"presumptive," the following:
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"(but not conclusive)"
6. The Facility Two Term Note is hereby amended by inserting into the last
sentence of the fourteenth paragraph thereof, immediately after the word
"presumptive," the following:
"(but not conclusive)"
7. Whenever in any Financing Document, or in any certificate or opinion to
be delivered therewith, reference is made to a "letter agreement" or to the
"Letter Agreement," from and after the date hereof same will be deemed to refer
to the Letter Agreement, as hereby amended. Whenever in any Financing Document,
or in any certificate or opinion to be delivered therewith, reference is made to
a "Term Note," from and after the date hereof same will be deemed to refer to
each of the Facility One Term Note, the Facility Two Term Note and the Facility
Three Term Note.
8. Simultaneously with the execution and delivery of this Agreement, the
Borrower is paying to the Bank a non-refundable closing fee of $15,000. The fee
described in this Section 5 is in addition to all interest, fees and other
charges and payments heretofore paid by the Borrower and is not to be credited
against, nor reduced by, any other fees (nor any interest, charges or other
payments) now or hereafter payable by the Borrower.
9. In order to induce the Bank to enter into this Agreement, the Borrower
further represents and warrants as follows:
a. The execution, delivery and performance of this Agreement and the
Facility Three Term Note have been duly authorized by the Borrower by all
necessary corporate and other action, will not require the consent of any third
party and will not conflict with, violate the provisions of, or cause a default
or constitute an event which, with the passage of time or the giving of notice
or both, could cause a default on the part of the Borrower under its charter
documents or by-laws or under any contract, agreement, law, rule, order,
ordinance, franchise, instrument or other document, or result in the imposition
of any lien or encumbrance on any property or assets of the Borrower (except
liens in favor of the Bank).
b. The Borrower has duly executed and delivered each of this
Agreement and the Facility Three Term Note.
c. Each of this Agreement and the Facility Three Term Note is the
legal, valid and binding obligation of the Borrower, enforceable against the
Borrower in accordance with its respective terms.
d. The statements, representations and warranties made in the Letter
Agreement, in the IAR Security Agreement and/or in the Supplementary Security
Agreement continue to be correct as of the date hereof; except as amended,
updated and/or supplemented by the attached Supplemental Disclosure Schedule.
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e. Giving effect to the amendments set forth above, the covenants and
agreements of the Borrower contained in the Letter Agreement, in the IAR
Security Agreement and/or in the Supplementary Security Agreement have been
complied with on and as of the date hereof.
f. Giving effect to the amendments set forth above, no event which
constitutes or which, with notice of lapse of time, or both, could constitute,
an Event of Default (as defined in the Letter Agreement) has occurred and is
continuing.
g. No material adverse change has occurred in the financial condition
of the Borrower from that disclosed in the annual financial statements of the
Borrower dated December 31, 1995, except as heretofore disclosed in writing to
the Bank.
10. Except as expressly affected hereby, the Letter Agreement and each of
the other Financing Documents remain in full force and effect as heretofore.
11. Nothing contained herein will be deemed to constitute a waiver or
release of any provision of any of the Financing Documents. Nothing contained
herein will in any event be deemed to constitute an agreement to give a waiver
or release or agree to any amendment or modification of any provision of any of
the Financing Documents on any other or future occasion.
Executed, as an instrument under seal, as of the day and date first above
written.
INDIVIDUAL, INC.
By: /s/ Robert L. Lentz
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Name: Robert L. Lentz
Title: Vice President
Accepted and agreed:
FLEET NATIONAL BANK
By: /s/ Kimberly Martone
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Name: Kimberly Martone
Title: Vice President