1
EXHIBIT 10.25
FIFTH AMENDMENT
TO
THIRD AMENDED AND RESTATED CONSOLIDATED
REPLACEMENT CREDIT FACILITY AND SECURITY AGREEMENT
--------------------------------------------------
THIS FIFTH AMENDMENT TO THIRD AMENDED AND RESTATED
CONSOLIDATED REPLACEMENT CREDIT FACILITY AND SECURITY AGREEMENT (this
"Agreement") dated as of February 20, 2001, is entered into by and between
INTERNATIONAL TOTAL SERVICES, INC., an Ohio corporation ("Borrower"), and BANK
ONE, N.A., successor in interest by merger to BANK ONE, CLEVELAND, N.A., a
national banking association, as agent bank for itself and for THE PROVIDENT
BANK, an Ohio banking company (collectively, the "Lender").
WITNESSETH
----------
WHEREAS, the Borrower and the Lender are parties to that
certain Third Amended and Restated Consolidated Replacement Credit Facility and
Security Agreement dated as of March 31, 1997, as amended by that certain First
Amendment dated as of October 10, 1997, that certain Second Amendment dated as
of December 16, 1998, that certain Third Amendment dated as of September 14,
1999 and that certain Fourth Amendment dated as of April 1, 2000 (the "Loan
Agreement"; all terms defined in the Loan Agreement being used herein shall have
the same meanings), pursuant to which the Lender has agreed to make a
$25,000,000 Revolving Loan to the Borrower until March 31, 2001, evidenced by a
Third Amended and Restated Promissory Note dated April 1, 2000 and payable to
the Lender, such Note being payable on March 31, 2000; and
WHEREAS, the Borrower and the Lender agreed to amend the Loan
Agreement (i) to extend the maturity date of the Revolving Loan to April 1,
2001; and, (ii) to modify certain definitions in Section 1 of the Loan
Agreement, to modify certain provisions of Section 2 of the Loan Agreement and
to modify certain covenants in Section 8 of the Loan Agreement.
WHEREAS, during the term of the Loan Agreement it has
requested additional financial accommodations.
NOW THEREFORE, in consideration of the foregoing and the
mutual covenants and agreements contained herein, and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Borrower and the Lender agree as follows:
AGREEMENT
---------
Section 1. Amendment of Loan Agreement.
---------------------------
Except as expressly modified herein, all terms, conditions,
definitions and provisions of the Third Amended and Restated Consolidated
Replacement Credit Facility and Security Agreement and the First, Second, Third
and Fourth Amendment thereto, are in full force and effect.
2
EXHIBIT 10.25
1. The definitions set forth in Section 1 of the Agreement are,
effective on the Effective Date (defined in Section 2 below), hereby amended to
include the following:
1. SOFA INTEREST RATE - A fluctuating rate equal to three and
one half of one percent (3.50%) above the Base Rate on any portion of the SOFA.
2. Subsections 2.3(A) and (C) of the Loan Agreement are, effective on
the Effective Date, amended and restated to read in their entirety as follows:
2.3 REVOLVING LOAN.
(1) REVOLVING LOAN. Subject at all times to the terms
hereof, the Lender will, from and after April 1, 2000 and
until April 1, 2001, make such loans to the Borrower as from
time to time the Borrower requests (the "Revolving Loan")
consisting of advances made by Lender against the value of
Eligible Accounts-Domestic. Subject to the provisions of
Subsection (B) of this Section 2.3, the aggregate unpaid
principal of the Revolving Loan outstanding at any one time
shall not exceed the lesser of: (a) the line of credit
approved for Borrower, which is currently Twenty-Five Million
Dollars ($25,000,000), less the face amount of all outstanding
Letters of Credit issued by Lender for the account of
Borrower; or, (b) during the period from the Effective Date to
April 1, 2001, (i) eighty-five percent (85%) of the unpaid
face amount of Eligible Accounts-Domestic (or such other
percentages of Eligible Accounts-Domestic as may from time to
time be fixed by the Lender upon notice to the Borrower), less
the face amount of any outstanding Letters of Credit, plus
(ii) a seasonal overadvance (the "SOFA") of up to
$3,000,000.00
(C) The form of Borrower's Certificate attached to
the Loan Agreement as Exhibit A is, effective on the Effective
Date, hereby deleted, and the form of Borrower's Base
Certificate attached to this Agreement as EXHIBIT A is hereby
substituted therefor.
Section 2. Effective Date of the Agreement.
-------------------------------
The effective date of this Agreement ("Effective Date") shall
be February 20, 2001 but Lender shall have no duty to fund until the date on
which all conditions precedent have been satisfied, or waived by the Lender in
writing.
Section 3. Facility Fee.
------------
Contemporaneously with the execution of this Agreement, Borrower shall
pay to Lender a Facility Fee of $10,000.00 plus all reasonable attorney fees
associated with the preparation of this Amended Agreement
2
3
EXHIBIT 10.25
Section 4. Conditions Precedent.
--------------------
Borrower hereby acknowledges and agrees that the effectiveness of this
Agreement is conditioned upon the receipt by the Lender, on or prior to the date
hereof, in form and substance satisfactory to the Lender and its counsel that
there shall be an Acknowledgment, Consent and Agreement in the form of EXHIBIT B
attached hereto, with all blanks completed, duly executed and delivered by the
Guarantors to Lender as identified in Schedule 1 attached hereto
Section 5. Covenants and Continuing Agreements.
-----------------------------------
All other terms, conditions, representations and warranties, covenants
and other agreements contained in the Fourth Amendment to the Third Amended and
Restated Consolidated Replacement Credit Facility and Security Agreement shall
remain in full force and effect.
Section 6. References.
----------
On and after the Effective Date of this Agreement, each reference in
the Loan Agreement to "this Agreement", "hereunder", "hereof", or words of like
import referring to the Loan Agreement, and in the Note to the "Loan Agreement",
"thereof", or words of like import referring to the Loan Agreement, shall mean
and refer to the Loan Agreement and shall be deemed to refer to the form of
Borrowing Base Certificate attached hereto as Exhibit A. The Loan Agreement, as
previously amended and as amended by this Agreement, and all Credit Documents
are and shall continue to be in full force and effect and are hereby and in all
respects ratified and confirmed. References to the Loan Agreement in the Note
shall be deemed to include all amendments to the Loan Agreement whether
specified in the Note or not.
Section 7. Applicable Law.
--------------
This Agreement shall be deemed to be a contract under the laws of the
State of Ohio, and for all purposes shall be construed in accordance with the
laws of the State of Ohio.
Section 8. Release.
-------
The Borrower hereby represents and warrants to the Lender, and agrees
with the Lender, that it has no claim or offset against, or defense or
counterclaim to, any Obligation or Indebtedness to the Lender under the Loan
Agreement or other Credit Documents and, in consideration of this Agreement, the
Borrower hereby releases and discharges the Lender and its shareholders,
directors, officers, employees, attorneys, affiliates and subsidiaries from any
and all claims, demands, liability and causes of action whatsoever, now known or
unknown, existing on the Effective Date and arising prior to the date hereof and
arising out of or in any way related to Obligations, the Loan Agreement, this
Agreement, or any security interest related thereto or the administration of the
Revolving Loan or any other Indebtedness of Borrower, the Guarantors, or any
Affiliate to the Lender.
3
4
EXHIBIT 10.25
Section 9. Counterparts.
------------
This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one and the same instrument, and any one
of the parties hereto may execute this Agreement by signing any such
counterpart.
IN WITNESS WHEREOF, the Borrower and the Lender have caused this
Agreement to be executed by their duly authorized officers as of the date and
year first above written.
BANK ONE, N.A. INTERNATIONAL TOTAL SERVICES, INC.
By:_/s/ T. Xxxxxx Xxxxx By:_/s/ Xxxx X. Xxxxxxxx
Name: T. Xxxxxx Xxxxx Name: Xxxx X. Xxxxxxxx
Title: First Vice President, Managed Assets Title: Chief Executive Officer
4
5
EXHIBIT 10.25
SCHEDULE 1
----------
List of Guarantors
------------------
Domestic
--------
Crown Technical Systems, Inc. (Ohio)
T.I.S. Incorporated (Texas)
Certified Investigative Services, Inc. (Texas)
I.T.S. of New York, Inc. (New York)
Selective Detective Services, Inc. (New Jersey)
Foreign
-------
International Total Services, Ltd. (United Kingdom)
International Transport Security, s.r.o. (Czech Republic)
International Transport Services, Ltd. (Thailand)
5
6
EXHIBIT 10.25
EXHIBIT B
Acknowledgment, Consent and Agreement
-------------------------------------
[SEE ATTACHED]
6
7
EXHIBIT 10.25
ACKNOWLEDGMENT, CONSENT AND AGREEMENT
-------------------------------------
The undersigned each hereby acknowledges receipt of a copy of
the Fifth Amendment to Third Amended and Restated Consolidated Replacement
Credit Facility and Security Agreement dated as of February __, 2001, by and
between International Total Services, Inc. ("Borrower") and Bank One, N.A.,
successor by merger to Bank One, Cleveland, N.A. ("Bank One") and by executing
this Acknowledgment, Consent and Agreement the undersigned each hereby agrees to
remain bound by the terms and conditions of its respective Amended and Restated
Replacement Guaranty Agreement, Guaranty Agreement, Amended and Restated
Replacement Guarantor Security Agreement and Guarantor Security Agreement, as
applicable, each dated as of August 11, 1995, executed and delivered to Bank One
in connection with the Second Amended and Restated Replacement Credit Agreement
dated as of August 11, 1995, as subsequently amended, and each other document
hereafter executed in connection herewith or therewith by the undersigned.
Dated: February __, 2001 CROWN TECHNICAL SYSTEMS, INC.
By:_________________________________
Name:
Title: Chairman of the Board
T.I.S. INCORPORATED
By:_________________________________
Name:
Title: Chief Executive Officer
CERTIFIED INVESTIGATIVE SERVICES, INC.
By:_________________________________
Name:
Title: Chief Executive Officer
I.T.S. OF NEW YORK, INC.
By:_________________________________
Name:
Title: Chief Executive Officer
7
8
EXHIBIT 10.25
SELECTIVE DETECTIVE SERVICES, INC.
By:_________________________________
Name:
Title: Chief Executive Officer
INTERNATIONAL TOTAL SERVICES, LTD.
By:___________________________________
Name:
Title: Chief Executive Officer
INTERNATIONAL TRANSPORT SECURITY, s.r.o.
By:_________________________________
Name:
Title: Chief Executive Officer
INTERNATIONAL TRANSPORT SERVICES, LTD.
By:__________________________________
Name:
Title: Chief Executive Officer
8
9
EXHIBIT 10.25
EXHIBIT A
Borrowing Base Certificate
--------------------------
[SEE ATTACHED]
9
10
EXHIBIT 10.25
BORROWING BASE CERTIFICATE
--------------------------
At the close of business on 0/00/00 Report # 479
------------------------------------
Date 0/00
Collateral Status Computation
----------------- Of Collateral
-------------
1. Balance (Domestic A/R) $0
2. Less: Ineligible Collateral (Domestic) $0
--
3. Eligible Collateral $0
4. Advance % rate 85%
5. Net Availability $0
Total Availability
6. Available - Not To Exceed $25,000,000 $0
7. Less Reserves (Letters to Credit) # $0
8. NET $0
==
Loan Status
9. Previous Loan Balance $0
10. Less: Collections $0
11. Add: Request for Funds $0
Wire Transfers $0
Other (interest, fees, etc.) $0
--
12. New Loan Balance $0
--
13. Excess Available (Line 8-12) may not $0
exceed ($3,000,000.00) ==
Borrower represents and warrants to Bank One, N.A. that all of the information
presented above and accompanying this Certificate is true, complete and correct
in every aspect as of the date hereof and has been computed in compliance with
the terms of the Fifth Amendment to Third Amended and Restated Consolidated
Replacement Credit Facility and Security Agreement dated 2/__/01, as amended,
between Bank One, N.A., and International Total Services, Inc. (the "Credit
Agreement"). In the event of any conflict between the terms of this Certificate
and the Credit Agreement, the terms of the Credit Agreement shall control.
Borrower further represents and warrants that as of the date hereof, after
giving effect to any loan or advance requested by Borrower contemporaneously
herewith, except as may have been otherwise expressly disclosed in writing by
Borrower to and received by Bank One N.A., that; (I) no Event of Default under
the terms of the Credit Facility, and no event which, but for a requirement of
giving notice or passage of time, or both, would constitute such an Event of
Default, has occurred or is continuing; (ii) each representation and warranty
contained in the Credit Agreement and related documents are true and correct;
(iii) there has been no material adverse change in Borrower's financial
position, operations or assets since the date of the latest financial statements
of Borrower delivered to Bank One, N.A.; (iv) to the extent that any loan or
advance requested contemporaneously herewith, or that is otherwise based upon
this certificate, will be used, in whole or in part, for the payment of wages,
Borrower has paid or deposited or is able to pay and intends to and shall make
timely payment or deposit of all taxes required to be deducted and withheld from
said wages; (v) all said wages incurred in the production of any inventory
included in this Certificate have been paid or will be timely paid. Borrower
acknowledges that Bank One is entitled to rely on this Certificate in making
loans and advances to Borrower.
--------------------------------------------------------------------------------------------------------------------
Borrower Name: Authorized Signature: Title:
International Total Services, Inc. EVP
--------------------------------------------------------------------------------------------------------------------
10
11
EXHIBIT 10.25
Prepared By: Cash Mgmt. Dir.
------------------------------------- -------------------------------------
#Includes the reserve for Delta G-Max accounts and the FAA Fine Accrual.
11
