Exhibit 10.42
AMENDMENT NO. 4 TO
SECOND AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
This Amendment No. 4 to Second Amended and Restated Loan and Security
Agreement, dated as of June 29, 2001 (this "Amendment"), is by and among
GUARDIAN INTERNATIONAL, INC., a Florida corporation and successor-in-interest by
domestication under Florida law to Guardian International, Inc., a former Nevada
corporation ("Guardian"), the undersigned Borrowing Subsidiaries (Guardian and
the Borrowing Subsidiaries may be individually referred to herein as a
"Borrower", and collectively as "Borrowers") and XXXXXX FINANCIAL, INC., a
Delaware corporation ("Lender").
W I T N E S S E T H:
WHEREAS, Borrowers and Lender are parties to that certain Second
Amended and Restated Loan and Security Agreement dated as of February 23, 1998
(as heretofore amended or otherwise modified, the "Loan Agreement"; capitalized
terms not otherwise defined herein have the definitions provided therefor in the
Loan Agreement);
WHEREAS, Borrowers have requested that Lender amend the Loan Agreement
in certain respects; and
WHEREAS, Lender has agreed to amend the Loan Agreement subject to the
terms and conditions hereof;
NOW, THEREFORE, the parties hereto agree as follows:
1. Amendments. Subject to the satisfaction of the conditions set forth
in Section 3 below, and in reliance on the representations, warranties,
covenants and other agreements contained herein, the Loan Agreement is hereby
amended as follows:
(a) Notwithstanding anything to the contrary set forth in
subsection 1.2 of the Loan Agreement, the parties hereto agree
that all financial statements and other relevant information
prepared by Borrowers and delivered to Lender, including
without limitation each Compliance Certificate, shall be
prepared to reflect the adoption by the Borrowers on or about
January 1, 2000 of SAB 101, an accounting policy regarding
revenue recognition.
(b) Subsection 2.1(A) of the Loan Agreement is hereby amended by
amending and restating the defined term "Borrowing Base" set
forth in clause (2) thereof as follows:
"Borrowing Base" means, as of any date of determination, an
amount equal to the aggregate MRI in respect of all Contracts
of Borrowers as of the last day of then most recently ended
month, multiplied by 21.
(c) Subsection 6.1 of the Loan Agreement is hereby amended by
deleting the dollar amount "$500,000" set forth in clause (ii)
thereof, and by inserting the dollar amount "$600,000" in lieu
thereof.
(d) Subsection 6.4 of the Loan Agreement is hereby amended by (x)
amending clause (ii) therein to read: "(ii) 3.50:1.0 through
June 30, 2001" and (y) by inserting new clause (iii)
immediately following clause (ii) therein, which shall read as
follows: "(iii) 4.50:1.0 thereafter."
(e) Subsection 6.6 of the Loan Agreement is hereby amended by
deleting the clause "ten percent (10.0%)" set forth therein,
and by inserting in lieu thereof the clause "twelve percent
(12.0%)".
(f) For purposes of Sections 6.3, 6.4 and 6.5 of the Loan
Agreement, EBIDAT and Pro Forma EBIDAT as of any measurement
date shall be measured for the three month period most
recently preceding such measurement date for which financial
information is available, and shall be expressed on an
annualized basis.
(g) The defined term "Expiry Date" set forth in Annex A to the
Loan Agreement is hereby amended by deleting the date "June
30, 2002", and by inserting in lieu thereof the date "April 3,
2003."
2. Conditions Precedent. The effectiveness of this Amendment is subject
to the satisfaction of the following conditions precedent (unless specifically
waived in writing by Lender):
(a) Borrowers shall have executed and delivered a copy of this
Amendment to Lender;
(b) Borrowers shall have paid to Lender a fee in respect of the
transactions contemplated hereunder in the amount of $125,000
(and by their execution hereof, Borrowers hereby authorize and
direct Lender to charge Borrowers' loan account for the full
amount of such fee);
(c) Borrowers shall have delivered to Lender copies of the
resolutions of the boards of directors of Borrowers with
respect to the transactions contemplated by this Amendment,
each certified as being true, complete and correct in all
respects by an officer of each Borrower;
(d) No Default or Event of Default shall have occurred and be
continuing;
(e) The warranties and representations of Borrowers contained in
this Amendment, the Loan Agreement, as amended hereby, and the
Loan Documents shall be true and correct in all material
respects as of the date hereof, with the same effect as though
made on such date.
3. Miscellaneous.
(a) Entire Agreement. This Amendment, including all schedules and
other documents attached hereto or incorporated by reference
herein, constitutes the entire agreement of the parties with
respect to the subject matter hereof and supercedes all other
understandings, oral or written, with respect to the subject
matter hereof.
(b) Captions. Section captions used in this Amendment are for
convenience only, and shall not affect the construction of
this Amendment.
(c) Costs and Expenses. As provided in Section 9.3 of the Loan
Agreement, Borrowers agree to pay on demand all reasonable
fees, costs and expenses incurred by Lender in connection with
the preparation, execution and delivery of this Amendment.
(d) Governing Law. This Amendment shall be a contract made under
and governed by the laws of the State of Illinois, without
regard to conflict of laws principles. Whenever possible each
provision of this Amendment shall be interpreted in such
manner as to be effective and valid under applicable law, but
if any provision of this Amendment shall be prohibited by or
invalid under such law, such provision shall be ineffective to
the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining
provisions of this Amendment.
(e) Counterparts. This Amendment may be executed in any number of
counterparts and by the different parties on separate
counterparts, and each such counterpart shall be deemed to be
an original, but all such counterparts shall together
constitute but one and the same Amendment.
(f) Successors and Assigns. This Amendment shall be binding upon
and shall inure to the sole benefit of Borrowers and Lender
and their respective successors and assigns.
(g) References. Any reference to the Loan Agreement contained in
any notice, request, certificate, or other document executed
concurrently with or after the execution and delivery of this
Amendment shall be deemed to include this Amendment unless the
context shall otherwise require.
(h) Continued Effectiveness. Notwithstanding anything contained
herein, the terms of this Amendment are not intended to and do
not serve to effect a novation as to the Loan Agreement. The
parties hereto expressly do not intend to extinguish the Loan
Agreement. Instead, it is the express intention of the parties
hereto to reaffirm the indebtedness created under the Loan
Agreement which is evidenced by the Notes and secured by the
Collateral. The Loan Agreement as amended hereby and each of
the Loan Documents remain in full force and effect.
IN WITNESS WHEREOF, this Amendment has been duly executed as of the day
and year first above written.
GUARDIAN INTERNATIONAL, INC.
By: /s/ XXXXXX X. XXXXX
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Xxxxxx X. Xxxxx
Title: Vice President
MUTUAL CENTRAL ALARM SERVICES
By: /s/ XXXXXX X. XXXXX
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Xxxxxx X. Xxxxx
Title: Vice President
XXXXXX FINANCIAL, INC.
By: /s/ XXXXX XXXX
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Xxxxx Xxxx
Title: Vice President