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Exhibit 10.1
THIRD AMENDMENT TO LOAN AGREEMENT
THE XXXXX-X'XXXX COMPANY, X'XXXX - XXXX & XXXXXXXXXX ARMORING COMPANY,
XXXXX HOLDINGS, INC., and XXXXX ASSOCIATES, INC. (individually and collectively
the "Borrower"), and KEYBANK NATIONAL ASSOCIATION ("Lender"), hereby agree as
follows:
1. RECITALS.
1.1 On October 30, 1998, Borrower and Lender entered into an
Amended and Restated Loan Agreement (the "Loan Agreement"),
which Loan Agreement was amended by an Amendment to Loan
Agreement dated as of June 25, 1999, and by a Second Amendment
to Loan Agreement dated as of October __, 1999 [sic].
Capitalized terms used herein and not otherwise defined will
have the meanings given such terms in the Loan Agreement.
1.2 Borrower and Lender desire to further amend the Loan Agreement
pursuant to this Third Amendment to Loan Agreement (the
"Amendment").
2. AMENDMENT.
2.1 Section 3.1.1 of the Loan Agreement is amended to provide as
follows:
2.2 TOTAL FACILITY. Lender will make available to Borrower a
revolving credit facility of up to $25,000,000 ("Total
Facility"), subject to the terms and conditions and made upon
the representations and warranties of Borrower set forth in
this Agreement. Amounts outstanding under the revolving credit
facility from time to time will be referred to as the
"Revolving Credit Loan". The Revolving Credit Loan will be
represented by the promissory note of Borrower of even date
with the Amendment to Loan Agreement and all amendments,
extensions and renewals thereto and restatements and
replacements thereof ("Revolving Credit Note"). The Revolving
Credit Loan will bear interest and will be payable in the
manner set forth in the Revolving Credit Note, the terms of
which are incorporated herein by reference. Notwithstanding
any of the foregoing to the contrary, the Total Facility will
be increased from $25,000,000 to $40,000,000 until September
30, 2000 (the "Reduction Date"), at which time it will reduce
from $40,000,000 to $25,000,000, and Borrower will pay to
Lender on the Reduction Date the principal balance outstanding
hereunder that is in excess of $25,000,000.
2.3 Section 3.2.3 of the Loan Agreement is amended to change "May
31, 2000" to "May 31, 2001."
2.4 Section of 5.3 of the Loan Agreement is amended to provide as
follows:
5.3 RECENT ADVERSE CHANGES. Except as specifically disclosed
in the Disclosure Schedule and/or the Proxy
Statement/Prospectus, since the dates of the most recent of
its Current Financial Statements, it has not suffered any
damage,
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destruction or loss which has materially and adversely
affected its business or assets and no event or condition of
any character has occurred which has materially and adversely
affected TKOGC and its Subsidiaries' assets, liabilities,
business or financial condition taken as a whole, and it has
no knowledge of any event or condition currently existing or
threatened which may materially and adversely affect TKOGC and
its Subsidiaries' assets, liabilities, business or financial
condition taken as a whole.
2.5 Sections 7.1, 7.3, 8.12, 8.13, and 14.40 of the Loan Agreement
are amended to change all references from "Indebtedness" to
"Debt".
2.6 Section 7.4 of the Loan Agreement is amended to provide as
follows:
7.4 GUARANTEES. Other than with respect to the Senior Notes
and guarantees by one or more of the Persons constituting
Borrower of the obligations of one or more other Persons
constituting Borrower or of the obligations of any Guarantor
or real estate rental obligations of any Subsidiary,
guarantee, endorse or become contingently liable for the
obligations of any person, firm or corporation, except in
connection with the endorsement and deposit of checks in the
ordinary course of business for collection or accounts payable
incurred by Subsidiaries in the ordinary course of business.
2.7 Section 7.5 of the Loan Agreement is amended to provide as
follows:
7.5 INTEREST COVERAGE RATIO. Permit the ratio of Borrower's
consolidated earnings before interest and taxes divided by the
interest expenses to be less than the following amounts for
the following periods: (i) 0.75 to 1.0 for the four quarters
ending June 30, 2000; (ii) 0.85 to 1.0 for the four quarters
ending September 30, 2000; and (iii) 2.5 to 1.0 for the four
quarters ending December 31, 2000 and on each March 31, June
30, September 30 and December 31 thereafter on a rolling four
quarter basis.
2.8 Section 7.9 of the Loan Agreement is amended to provide as
follows:
7.9 FUNDED DEBT TO EBITDA. Permit the ratio of Consolidated
Funded Debt to consolidated earnings before interest, taxes,
depreciation and amortization and excluding any gains from
sales of assets, other non-cash gains and extra-ordinary gains
("EBITDA"), to exceed the following amounts for the following
periods: (i) 3.5 to 1.0 for the four quarters ending June 30,
2000; (ii) 3.25 to 1.0 for the four quarters ending September
30, 2000, and (iii) 3.0 to 1.0 for the four quarters ending
December 31, 2000 and as measured on each March 31, June 30,
September 30 and December 31 on a rolling four quarter basis.
2.9 The Loan Agreement is amended to add a new Section 7.18 that
provides as follows:
7.18 NOTE PURCHASE AGREEMENT. Permit Borrower to take any
action under this Agreement that could or would with the
passage of time result in the
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occurrence of a default or an Event of Default under the Note
Purchase Agreement dated as of May 30, 1997.
2.10 The Loan Agreement is amended to add a new sentence at the end
of Section 14.13 that provides as follows: "For the purposes
of any future date on which the representations and warranties
contained in SECTION 5 hereof are deemed to be remade, the
most current financial statements, tax returns or other
documents with respect to Borrower or any Guarantor delivered
to Lender pursuant to SECTION 6 above will be deemed the
"Current Financial Statements"."
2.11 The Loan Agreement is amended to add a new Section 14.13A,
which provides as follows:
14.13A "Debt" will mean, without duplication: (i) all
obligations (including capitalized lease obligations) which in
accordance with generally accepted accounting principles would
be shown on a balance sheet as a liability; (ii) all
obligations for borrowed money or for the deferred purchase
price of property or services; (iii) all guarantees,
reimbursement, payment or similar obligations, absolute,
contingent or otherwise, under acceptance, letter of credit or
similar facilities, and (iv) all obligations for any Swap. For
the purposes of this Section, "Swap" shall mean, with respect
to any Person, payment obligations with respect to interest
rate swaps, currency swaps, and similar obligations obligating
such Person making payments, whether periodically or upon the
happening of a contingency. The amount of the obligation under
any Swap shall be the amount determined by Lender in its
reasonable calculation to be that portion of the Swap
obligation that represents the credit risk of such Person
under the Swap.
2.12 Section 14.25 of the Loan Agreement is hereby amended to
provide as follows:
14.25 "Indebtedness" will mean, without duplication: (i) all
obligations for borrowed money or for the deferred purchase
price of property (including capitalized lease obligations) or
services; (ii) all guarantees, reimbursement, payment or
similar obligations, absolute, contingent or otherwise, under
acceptance, letter of credit or similar facilities, and (iii)
all obligations for any Swap. For the purposes of this
Section, "Swap" shall mean, with respect to any Person,
payment obligations with respect to interest rate swaps,
currency swaps, and similar obligations obligating such Person
making payments, whether periodically or upon the happening of
a contingency. The amount of the obligation under any Swap
shall be the amount determined by Lender in its reasonable
calculation to be that portion of the Swap obligation that
represents the credit risk of such Person under the Swap.
2.13 Section 14.39 of the Loan Agreement is hereby amended to
provide as follows:
14.39 "Prime Rate" means the higher of: (i) that interest rate
established from time to time by Lender as Lender's Prime
Rate, whether or not such rate is publicly announced, or (ii)
one half of one percent (0.5%) plus the Federal
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Funds Effective Rate. The Prime Rate may not be the lowest
interest rate charged by Lender for commercial or other
extensions of credit. As used herein, the "Federal Funds
Effective Rate" will mean a fluctuating interest rate per
annum equal for each day during such period to the weighted
average of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by Federal
funds brokers, as published for the prior day (or, if such day
is not a Business Day, for the next preceding Business Day) by
the Federal Reserve Bank of New York, or, if such rate is not
so published for any day that is a Business Day, the average
of the opening quotations for such day for such transactions
received by Lender from three Federal funds brokers of
recognized standing selected by it.
2.14 Add a new Section 14.40A to the Loan Agreement that provides
as follows:
14.40A "Proxy Statement/Prospectus" will mean any document for
disclosure or reporting purposes filed with the Securities and
Exchange Commission and publicly available.
3. REPRESENTATIONS AND WARRANTIES. To induce Lender to enter into this
Amendment, Borrower represents and warrants as follows:
3.1 The representations and warranties of Borrower contained in
Section 5 of the Loan Agreement are deemed to have been made
again on and as of the date of execution of this Amendment and
will apply to this Amendment; provided that Lender
acknowledges that Borrower has unusual and extraordinary
expenses for which it has no reserve resulting from the failed
Blackstone transaction and the resulting plans of Borrower to
divide Borrower's business.
3.2 No Event of Default (as such term is defined in Section 8 of
the Loan Agreement) or event or condition which with the lapse
of time or giving of notice or both would constitute an Event
of Default exists on the date hereof.
3.3 Each person executing this Amendment and the loan documents to
be executed in connection herewith is a duly elected and
acting officer of Borrower and is duly authorized by the Board
of Directors of Borrower to execute and deliver such documents
on behalf of Borrower.
4. CONDITIONS. Lender's consent to this Amendment is subject to the
following conditions:
4.1 Borrower will have provided Lender with consolidating
statements of Borrower and each of Borrower's subsidiaries
that are required to be consolidated with Borrower according
to generally accepted accounting principles.
4.2 Borrower will have executed and delivered to Lender the
Amendment to the Revolving Credit Note.
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4.3 Lender will have been furnished copies, certified by the
Secretary or Assistant Secretary of Borrower, of resolutions
of the Board of Directors of Borrower authorizing the
execution of this Amendment and all other documents executed
in connection herewith.
4.4 The representations and warranties of Borrower in SECTION 3
herein will be true.
4.5 Borrower will pay to Lender a facility fee of $125,000 for the
increase, and $100,000 fee for waiving certain covenant
violations.
4.6 Borrower shall pay all expenses and attorneys' fees incurred
by Lender in connection with the preparation, execution, and
delivery of this Amendment in the amount of $1,750, and
related documents, including but not limited to outstanding
legal bills for other matters, which outstanding legal bills
total $7,574.80, for a combined total of $9,324.80. Borrower
hereby authorizes Lender to pay these sums by making an
advance under the Revolving Credit Note.
5. GENERAL.
5.1 Except as expressly modified herein, the Loan Agreement, as
amended, and the Revolving Credit Note, as amended, are and
remain in full force and effect.
5.2 Nothing contained herein will be construed as waiving any
default or Event of Default under the Loan Agreement or will
affect or impair any right, power or remedy of Lender under or
with respect to the Loan, the Loan Agreement, as amended, the
Revolving Credit Note, as amended, or any agreement or
instrument guaranteeing, securing or otherwise relating to the
Loan.
5.3 This Amendment will be binding upon and inure to the benefit
of Borrower and Lender and their respective successors and
assigns.
5.4 All representations, warranties and covenants made by Borrower
herein will survive the execution and delivery of this
Amendment.
5.5 This Amendment will in all respects be governed and construed
in accordance with the laws of the State of Ohio.
[SIGNATURES ON NEXT PAGE]
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Signed on May , 2000.
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THE XXXXX-X'XXXX COMPANY
By:
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Print Name:
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Title:
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Date:
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X'XXXX-XXXX & XXXXXXXXXX
ARMORING COMPANY
By:
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Print Name:
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Title:
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Date:
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XXXXX HOLDINGS, INC.
By:
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Print Name:
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Title:
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Date:
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KROLL ASSOCIATES, INC.
By:
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Print Name:
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Title:
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Date:
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KEYBANK NATIONAL ASSOCIATION
By:
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Print Name:
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Title:
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Date:
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AMENDMENT TO REVOLVING CREDIT NOTE
Cincinnati, Ohio Dated as of May __, 2000
On June 25, 1999, the undersigned, THE XXXXX-X'XXXX COMPANY, X'XXXX -
XXXX & XXXXXXXXXX ARMORING COMPANY, XXXXX HOLDINGS, INC., and XXXXX ASSOCIATES,
INC. (individually and collectively the "Borrower"), executed and delivered a
Revolving Credit Note to KEYBANK NATIONAL ASSOCIATION, in the principal amount
of $25,000,000 (the "Note").
By this Amendment to Revolving Credit Note, the Note hereby is amended
as follows:1. The first full paragraph on the first page of the Note is amended
to provide as follows:
FOR VALUE RECEIVED, THE XXXXX-X'XXXX COMPANY, X'XXXX
- XXXX & XXXXXXXXXX ARMORING COMPANY, XXXXX HOLDINGS, INC.,
and KROLL ASSOCIATES, INC. (individually and collectively the
"Borrower"), jointly and severally promise to pay to the order
of KEYBANK NATIONAL ASSOCIATION ("Lender"), at its offices
located at 000 Xxxx Xxxxxx, Xxxxxxxxxx, Xxxx 00000 or such
other location as Lender may from time to time designate, the
principal sum of TWENTY FIVE MILLION DOLLARS ($25,000,000)
(the "Total Facility") or such greater or lesser amount as may
be advanced and outstanding hereunder, together with interest
thereon as provided below from the date of disbursement
thereof until paid, all in lawful money of the United States
of America and in immediately available funds. Notwithstanding
any of the foregoing to the contrary, the Total Facility will
be increased from $25,000,000 to $40,000,000 until September
30, 2000 (the "Reduction Date"), at which time it will reduce
from $40,000,000 to $25,000,000, and Borrower will pay to
Lender on the Reduction Date the principal balance outstanding
hereunder that is in excess of $25,000,000.
2. The following sentence will be added to the end of Section 1.1.2 of
the Note as follows:
Notwithstanding any of the foregoing to the contrary, on May __, 2000,
the Applicable Margin will be set as if Borrower's Funded Debt to
EBITDA Ratio is greater than or equal to 2.5 to 1.0, which Applicable
Margin will apply until the Reduction Date.
Except as expressly modified hereby, all terms and conditions of the
Note remain in full force and effect.
THE XXXXX-X'XXXX COMPANY
By:
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Print Name:
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Title:
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Date:
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X'XXXX-XXXX & XXXXXXXXXX
ARMORING COMPANY
By:
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Print Name:
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Title:
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Date:
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XXXXX HOLDINGS, INC.
By:
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Print Name:
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Title:
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Date:
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KROLL ASSOCIATES, INC.
By:
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Print Name:
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Title:
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Date:
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ACCEPTED:
KEYBANK NATIONAL ASSOCIATION
By:
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Print Name:
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Title:
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Date:
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CERTIFICATE OF THE SECRETARY
OF
THE XXXXX-X'XXXX COMPANY
The undersigned, Secretary of THE XXXXX-X'XXXX COMPANY ("Corporation")
hereby certifies to KEYBANK NATIONAL ASSOCIATION ("Lender") as follows:
1. The following Resolution was duly adopted and is a binding resolution
of the Corporation:
RESOLVED, that the Corporation amend the Amended and Restated
Loan Agreement by and between Corporation, X'Xxxx-Xxxx & Xxxxxxxxxx
Armoring Company, Xxxxx Holdings, Inc. and Kroll Associates, Inc.
(collectively, "Borrowers") and Lender dated October 30, 1998, as
amended, and the Revolving Credit Note (the "Note") given by Borrowers
to Lender on June 25, 1999, to extend the maturity date of the letter
of credit facility, to increase the amount of the Note until September
30, 2000, and to amend certain other financial provisions, and that the
President or any Vice President be, and they hereby are, authorized to
execute any and all documents to effectuate and secure such loan
including, without limitation, a Third Amendment to Loan Agreement, an
Amendment to Revolving Credit Note and other necessary or appropriate
documents in connection herewith.
2. The following is a complete and accurate list of the Officers of the
Corporation as of May __, 2000:
President.................
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Vice President............
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Secretary.................
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Assistant Secretary.......
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Treasurer.................
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Secretary
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CERTIFICATE OF THE SECRETARY
OF
X'XXXX-XXXX & XXXXXXXXXX ARMORING COMPANY
The undersigned, Secretary of X'XXXX-XXXX & XXXXXXXXXX ARMORING COMPANY
("Corporation") hereby certifies to KEYBANK NATIONAL ASSOCIATION ("Lender") as
follows:
1. The following Resolution was duly adopted and is a binding resolution
of the Corporation:
RESOLVED, that the Corporation amend the Amended and Restated
Loan Agreement by and between Corporation, The Xxxxx-X'Xxxx Company,
Xxxxx Holdings, Inc. and Kroll Associates, Inc. (collectively,
"Borrowers") and Lender dated October 30, 1998, as amended, and the
Revolving Credit Note (the "Note") given by Borrowers to Lender on June
25, 1999, to extend the maturity date of the letter of credit facility,
to increase the amount of the Note until September 30, 2000, and to
amend certain other financial provisions, and that the President or any
Vice President be, and they hereby are, authorized to execute any and
all documents to effectuate and secure such loan including, without
limitation, a Third Amendment to Loan Agreement, an Amendment to
Revolving Credit Note and other necessary or appropriate documents in
connection herewith.
2. The following is a complete and accurate list of the Officers of the
Corporation as of May __, 2000:
President.................
--------------------------
Vice President............
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Secretary.................
--------------------------
Assistant Secretary.......
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Treasurer.................
--------------------------
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Secretary
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CERTIFICATE OF THE SECRETARY
OF
KROLL HOLDINGS, INC.
The undersigned, Secretary of KROLL HOLDINGS, INC. ("Corporation")
hereby certifies to KEYBANK NATIONAL ASSOCIATION ("Lender") as follows:
1. The following Resolution was duly adopted and is a binding resolution
of the Corporation:
RESOLVED, that the Corporation amend the Amended and Restated
Loan Agreement by and between Corporation, X'Xxxx-Xxxx & Xxxxxxxxxx
Armoring Company, The Xxxxx-X'Xxxx Company and Kroll Associates, Inc.
(collectively, "Borrowers") and Lender dated October 30, 1998, as
amended, and the Revolving Credit Note (the "Note") given by Borrowers
to Lender on June 25, 1999, to extend the maturity date of the letter
of credit facility, to increase the amount of the Note until September
30, 2000, and to amend certain other financial provisions, and that the
President or any Vice President be, and they hereby are, authorized to
execute any and all documents to effectuate and secure such loan
including, without limitation, a Third Amendment to Loan Agreement, an
Amendment to Revolving Credit Note and other necessary or appropriate
documents in connection herewith.
2. The following is a complete and accurate list of the Officers of the
Corporation as of May __, 2000:
President.................
--------------------------
Vice President............
--------------------------
Secretary.................
--------------------------
Assistant Secretary.......
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Treasurer.................
--------------------------
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Secretary
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CERTIFICATE OF THE SECRETARY
OF
XXXXX ASSOCIATES, INC.
The undersigned, Secretary of XXXXX ASSOCIATES, INC. ("Corporation")
hereby certifies to KEYBANK NATIONAL ASSOCIATION ("Lender") as follows:
1. The following Resolution was duly adopted and is a binding resolution
of the Corporation:
RESOLVED, that the Corporation amend the Amended and Restated
Loan Agreement by and between Corporation, X'Xxxx-Xxxx & Xxxxxxxxxx
Armoring Company, Xxxxx Holdings, Inc. and The Xxxxx-X'Xxxx Company
(collectively, "Borrowers") and Lender dated October 30, 1998, as
amended, and the Revolving Credit Note (the "Note") given by Borrowers
to Lender on June 25, 1999, to extend the maturity date of the letter
of credit facility, to increase the amount of the Note until September
30, 2000, and to amend certain other financial provisions, and that the
President or any Vice President be, and they hereby are, authorized to
execute any and all documents to effectuate and secure such loan
including, without limitation, a Third Amendment to Loan Agreement, an
Amendment to Revolving Credit Note and other necessary or appropriate
documents in connection herewith.
3. The following is a complete and accurate list of the Officers of the
Corporation as of May __, 2000:
President.................
--------------------------
Vice President............
--------------------------
Secretary.................
--------------------------
Assistant Secretary.......
--------------------------
Treasurer.................
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Secretary
